Miss C Roberston v The Secretary of State for Justice: 2303679/2023

EMPLOYMENT TRIBUNALS

Case No 2303679/2023

Between

Miss C RoberstonClaimant

The Secretary of State for JusticeRespondent

Before

Employment Judge Sudra

Mr. E. Courcha (instructed by Counsel) for claimant

Mr. R. Moretto (instructed by Counsel) for respondent

Date 3 September 2025

JUDGMENT

The unanimous decision of the Tribunal is that the Claimant’s complaints of, (i) Constructive unfair dismissal is not well founded and is

[1]Deliberations in Chambers on 15th and 16th May 2025. (ii) Direct race discrimination is not well founded and is dismissed. (iii) Direct disability discrimination is not well founded and is (iv) Discrimination arising from disability is not well founded and is (v) Victimisation is not well founded and is dismissed.

REASONS

The Issues

[1]The Claimant began Acas early conciliation on 5th May 2023 (‘Day A’) and was issued with an Acas early conciliation certificate on 16th June 2023 (‘Day B’). On 16th July 2023 the Claimant presented her first ET1, claim form number 2303679/2023, and on 16th December 2023 she submitted her second ET1, claim form number 2306944/2023. Both claims were consolidated by Employment Judge Fowell on 28th February 2024. The Respondent defended the claims by way of an ET3 and Grounds of Resistance on 5th September 2023 (first claim) and 19th February 2024 (second claim).

The Issues

[2]The Claimant’s claims are for:(i) Constructive unfair dismissal (s.95(1)(c) Employment Rights Act 1996 (‘ERA’));

(ii) direct race discrimination (s.13 Equality Act 2010 (‘EqA’));

(iii) direct disability discrimination (s.13 EqA);

(iv) discrimination arising from disability (s.15 EqA); and

(v) victimisation (s.27 EqA). The parties had agreed a final List of Issues which was appended to the Case Management Order of Employment Judge Sudra [146] and is as follows: ‘Direct Race Discrimination s.13 Equality Act 2010 The Claimant is of mixed heritage.

[2]Did the Respondent do the following things:a. Suspend the Claimant on 31 August 2022 and continuing to do so for an unreasonable period (actual comparators relied upon: Matthew Harrison, Matthew Taroni, George Gurr, Claire Vellam);

b. Subject the Claimant to an ongoing disciplinary investigation and disciplinary process with a possible outcome of gross misconduct (from 31 August 2022 onwards) (actual comparators relied upon: Matthew Harrison, Matthew Taroni, George Gurr, Claire Vellam);

c. Fail to carry out a fair investigation process (from 31 August 2022 onwards);

d. Fail to progress the disciplinary process (from 21 October 2022 onwards);

e. Fail to properly hear the grievance by not dealing with a large number of points raised within the grievance (from 3 February 2023 onwards);

f. Fail to progress the grievance appeal process within a reasonable period of time (from 1 June 2023 onwards);

g. Fail to properly hear the grievance appeal by not dealing with a large

h. Fail to deal with the issues raised by the Claimant in her grievance

i. Giving a final written warning to the Claimant for gross misconduct.

[3]Was that less favourable treatment? The Tribunal will decide whether the Claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the Claimant’s. If there was nobody in the same circumstances as the Claimant, the Tribunal will decide whether s/he was treated worse than someone else would have been treated.

[4]If so, was it because of the Claimant’s race?

[5]The Claimant relies on the actual comparators as set out above. In the alternative the Claimant relies upon a hypothetical comparator, e.g. a white officer. Disability

[6]The Respondent accepts that the Claimant had a disability at the material times from 31st August until the termination of the Claimant’s employment on 11 September 2023. The disability relied upon is a foot condition. Direct Disability Discrimination s.13 Equality Act 2010

[7]Did the Respondent do the following things?a. Suspend the Claimant on 31 August 2022 and continuing to do so for an unreasonable period;

b. Subject the Claimant to an ongoing disciplinary investigation and disciplinary process with the possible outcome of gross misconduct (from 31 August 2022 onwards);

c. Fail to properly hear the grievance appeal by not dealing with a large

d. Fail to deal with the issues raised by the Claimant in her grievance

e. Giving a final written warning for gross misconduct.

[8]Was that less favourable treatment? The Tribunal will decide whether the Claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the Claimant’s. If there was nobody in the same circumstances as the Claimant, the Tribunal will decide whether s/he was treated worse than someone else would have been treated.

[9]If so, was it because of the Claimant’s disability?

[10]The Claimant relies on the following comparators: Matthew Harrison, Matthew Taroni, George Gurr, Claire Vellam. In the alternative, the Claimant relies on a hypothetical comparator, e.g. an Officer without her disability. Discrimination Arising from Disability s.15 Equality Act 2010

[11]Did the Respondent treat the Claimant unfavourably by:a. Suspending the Claimant on 31 August 2022 and continuing to do so for an unreasonable period?

b. Subjecting the Claimant to an ongoing disciplinary investigation and disciplinary process with possible outcome of gross misconduct (from 31 August 2022 onwards)?

c. Fail to properly hear the grievance appeal by not dealing with a large

d. Fail to deal with the issues raised by the Claimant in her grievance

e. Giving a final written warning for gross misconduct.

[12]Did the following things arise in consequence of the Claimant’s disability: (a) The Claimant being unable to stand for long periods.

[13]Was the unfavourable treatment because of any of those things?

[14]Can the Respondent show that this was a proportionate means of achieving a legitimate aim? The Respondent says that its aims were: (a) The need to comply with the Respondent’s conduct and professionalism policies to ensure a professional and trustworthy workforce of a high standard which commands respect and is beyond any suspicion of abuse of their position.

[15]The Respondent accepts that the Claimant carried out protected acts by raising a grievance and appealing the outcome of the grievance and complaining of race and disability discrimination.

[16]Did the Respondent do the following things:a. Giving the Claimant a sickness absence warning (on 21 April 2023);

b. Failing to properly hear the grievance appeal by not dealing with a large number of points raised within the grievance (from 3 February 2023 onwards);

c. Fail to progress the grievance appeal process within a reasonable period of time (from 1 June 2023 onwards);

d. Failure to progress the disciplinary process (from 3 February 2023 onwards);

e. Failing to properly hear the grievance appeal;

f. Fail to deal with the issues raised by the Claimant in her grievance

g. Giving a final written warning for gross misconduct

[17]By doing so, did it subject the claimant to detriment?

[18]If so, was this because the Claimant did a protected act?

[19]Remedy for Discrimination or Victimisation1.1 Should the Tribunal make a recommendation that the respondent take steps to reduce any adverse effect on the claimant? What should it recommend?

1.2 What financial losses has the discrimination caused the Claimant?

1.3 Has the Claimant taken reasonable steps to replace lost earnings, for example by looking for another job?

1.4 If not, for what period of loss should the Claimant be compensated?

1.5 What injury to feelings has the discrimination caused the Claimant and how much compensation should be awarded for that?

1.6 Is there a chance that the claimant’s employment would have ended in any event? Should their compensation be reduced as a result?

1.7 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?

1.8 If so is it just and equitable to increase or decrease any award payable to the claimant?

1.9 By what proportion, up to 25%?

1.10 Should interest be awarded? How much? Constructive Dismissal

[20]Did the Respondent commit a repudiatory breach of contract as follows: a) Subject the Claimant to race discrimination, disability discrimination and victimisation as set out above; b) Fail to offer any support in relation to her mental wellbeing on returning to work after a year’s suspension; and c) Require an immediate return to duties before obtaining an Occupational Health Report and having reasonable adjustments in place.

[21]In all the circumstances, did the Respondent act without reasonable or proper cause, and in a manner that was calculated or likely to damage or seriously destroy the relationship of trust and confidence?

[22]Was the breach a fundamental one? The Tribunal will need to decide whether the breach was so serious that the claimant was entitled to treat the contract as being at an end.

[23]Did the Claimant resign in response to the breach?

[24]Did the claimant affirm the contract before resigning? The Tribunal will need to decide whether the claimant’s words or actions showed that they chose to keep the contract alive even after the breach.

[25]Can the Respondent show a potentially fair reason for the Claimant’s dismissal, and if so did the Respondent act reasonably in treating it as a sufficient reason to dismiss?

[26]Was the dismissal discriminatory with reference to s.39(7)(b) EQA 2010?

[27]Remedy for unfair dismissal 1.11 Does the Claimant wish to be reinstated to their previous employment? 1.12 Does the Claimant wish to be re-engaged to comparable employment or other suitable employment? 1.13 Should the Tribunal order reinstatement? The Tribunal will consider in particular whether reinstatement is practicable and, if the claimant caused or contributed to dismissal, whether it would be just. 1.14 Should the Tribunal order re-engagement? The Tribunal will consider in particular whether re-engagement is practicable and, if the claimant caused or contributed to dismissal, whether it would be just. 1.15 What should the terms of the re-engagement order be? 1.16 If there is a compensatory award, how much should it be? The Tribunal will decide:1.16.1 What financial losses has the dismissal caused the Claimant?

1.16.2 Has the Claimant taken reasonable steps to replace their lost earnings, for example by looking for another job?

1.16.3 If not, for what period of loss should the Claimant be compensated?

1.16.4 Is there a chance that the Claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason?

1.16.5 If so, should the Claimant’s compensation be reduced? By how much?

1.16.6 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?

1.16.7 Did the Respondent or the claimant unreasonably fail to comply with it?

1.16.8 If so is it just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25%?

1.16.9 If the Claimant was unfairly dismissed, did she cause or contribute to dismissal by blameworthy conduct?

1.16.10 If so, would it be just and equitable to reduce the Claimant’s compensatory award? By what proportion?

1.16.11 Does the statutory cap of fifty-two weeks’ pay or [£86,444] apply? 1.17 What basic award is payable to the claimant, if any? 1.18 Would it be just and equitable to reduce the basic award because of any conduct of the claimant before the dismissal? If so, to what extent? Jurisdiction – Time Limits

[28]If any acts or omissions complained of occurred more than three months before the claim was submitted, as extended by Acas Early Conciliation, i.e. prior to 6 February 2023:a. Are they part of a continuing act?

b. Is it just and equitable to extend time?’ Preliminary Matters 3. At the outset of the Hearing we discussed the List of Issues with both the Claimant and Respondent; they agreed that the List of Issues accurately captured the Claimant’s claims. 4. The Tribunal also explored timetabling with the parties and was content that the evidence and submissions would be completed within the allotted Hearing days. 5. The parties confirmed that no reasonable adjustments were required for the Hearing and were encouraged to notify us if the situation altered. Procedure and Documents 6. We had before us:

(a) An agreed Hearing bundle consisting of 1230 pages; and

(b) a cast list, chronology, and reading list from the Respondent; which were agreed by the Claimant. 7. We also had written witness statements and heard live evidence from: For the Claimant (i) The Claimant; For the Respondent (ii) Darren Wilkinson; (iii) Michael Lamb; (iv) Rebecca Christian; (v) Tina Stone; (vi) Debra Baldwin; and (vii) Paul Crossey. 8. The Claimant and Respondent made oral and written closing submissions at the conclusion of the evidence. Mr. Moretto, helpfully, provided the Claimant and us with a bundle of relevant authorities. 9. We notified the parties at the outset of the Hearing that we would only read documents that we were specifically referred to and would only read documents referred to in witness statements insofar as they were relevant. Relevant Findings of Fact 10. The following findings of fact were reached by us, on a balance of probabilities, having considered all of the evidence given by witnesses during the Hearing, including the documents referred to by them, and taking into account our assessment of the witness evidence. 11. Only findings of fact relevant to the issues, and those necessary for us to determine, have been referred to in this judgment. It has not been necessary, and neither would it be proportionate, to determine each and every fact in dispute. We have not referred to every document we read and/or were taken to in the findings below but that does not mean it was not considered if it was referenced to in the witness statements/evidence and considered relevant. Employment 12. The Claimant was employed by the Respondent as a Band 3 Prison Officer on 21st March 2021 and was based at Her (later His) Majesty’s Young Offenders’ Institute Cookham Wood. Cookham Wood (‘the prison’) was a male young persons’ prison situated in Kent and is presently an adult prison for category C males and part of HMP Rochester. The Claimant’s employment terminated on 11th September 2023 upon her resignation with immediate effect. 13. The Claimant is of mixed heritage. She has a foot condition and the Respondent accepted that she was disabled at the material times (31st August 2022 to 11th September 2023) by virtue of s.6 EqA. 14. On 19th January 2022 staff searches were being conducted at the prison. The Claimant was asked if she had, on her person, any items which she should not be in possession of and she replied in the negative. An officer then conducted a body search of the Claimant and a rustling sound could be heard emanating from her chest. The Claimant was asked what the sound was and she produced a pouch of smoking tobacco from her brassiere; the tobacco was seized and placed in an evidence bag. When the Claimant’s jacket was searched an open packet of chewing gum was discovered. Both tobacco and chewing gum are prohibited items which should not be brought into the prison by either staff or visitors. 15. The Claimant emailed Timothy Webster (Head of Security) on 19th January 2022 apologising for bringing tobacco into the prison. She went on to explain that she usually hand-rolled a cigarette in her car before shifts and prior to her shift on the day in question, she had ‘grabbed’ her bag and entered the prison with the pouch of tobacco in it. When the Claimant discovered that a staff search was going to be conducted she said that she panicked and placed the pouch of tobacco in her brassiere to conceal it. Mr. Webster responded to the Claimant assuring her that he accepted her explanation and did not want her to ‘worry unduly.’ 16. Mr. Webster met with the Claimant on 9th February 2022 and accepted that she had made a genuine mistake and spoke to her about trust and integrity. No formal action was taken against the Claimant for her serious breach of prison rules. 17. On 11th February 2022, the Claimant was observed in the lightbay with a young person2 (‘YP’); the lights in the lightbay were off. The Claimant emerged from the lightbay and looked flustered and was followed by the YP. Mr. Webster met with the Claimant on 2nd March 2022 to discuss the incident. The Claimant explained that she had not switched the lights off but that they had malfunctioned due to a power cut and ensuing power surge. 18. Mr. Webster accepted the Claimant’s explanation and, again, no further action was taken. 2 The term used for whom would be ‘prisoners’ in an adult prison. 19. On 7th June 2022 the Claimant was invited to a formal attendance review meeting (‘FARM’) as she had had a prolonged period off-work due to sickness which commenced on or around 12th May 2022. 20. The Claimant attended a FARM meeting with Leigh Copping (custodial manager and the Claimant’s erstwhile line-manager) and was accompanied by a representative. The Claimant returned to work on 15th June 2022 [216]. 21. On or around 6th July 2022 (circa 16 months after her employment began) the Claimant informed Ms. Copping of her foot condition and that this had been causing her some pain and discomfort since her return-to-work. The Claimant told Ms. Copping that she did not disclose her condition at the start of her employment as she found it ‘embarrassing.’ [227] Canteen 22. The prison had in place a canteen system for its YP’s. YP’s were able to order items, using their earnings or private cash, from a shopping list which would be delivered to the prison via the delivery services of DHL. The canteen items would be delivered in bulk and would have been already sorted-out into clear, heat-sealed, plastic bags for individual YP’s and a bag would contain the items the YP had ordered and an individual receipt for the purchases. 23. If a canteen order had arrived for a YP who was no longer in-situ at the prison, it would be returned to DHL for a refund which would, or should, revert to that YP. 26th August 2022 Incident 24. On 26th August 2022 the Claimant was on duty on A1 landing with her colleague Matthew Harrison (Prison Officer (white male)) nearby on A2 landing. The Claimant and Mr. Harrison had a congenial relationship as they had trained together for their role and commenced work at the prison at approximately the same time. The Claimant came across a canteen bag for a YP who was no longer resident at the prison. The canteen bag contained, inter alia, bottles of water and Pepsi-Cola which were approximately 1.5 litres in volume. The Claimant decided to keep some bottles of water and the cola for herself to take away with her at the end of her shift. 25. As the Claimant did not have a suitable vessel to carry all of the beverages she wanted to keep, she asked Mr. Harrison if she could use his bag to carry the YP’s goods - to which he agreed. It was neither the custom nor the practise at the prison for staff to keep canteen items of former YP’s for their own use. Therefore, before he had agreed the Claimant could use his bag, Mr. Harrison questioned the Claimant about taking the items saying it sounded ‘a bit suspect’ but the Claimant sought to reassure Mr. Harrison telling him that it was ‘okay.’ The Claimant then proceeded to place the absent YP’s canteen items in Mr. Harrison’s bag and gave a resident YP some canteen items as it was his birthday (this was also against prison rules). The Claimant had not been given permission to take the canteen items or to share them with the resident YP. 26. Unbeknown to the Claimant and Mr. Harrison, their actions had been observed on CCTV by Vicky Verrall (Operational Support Grade) from the control room. Ms. Verrall reported what she had seen to Leanna Dorsett (Custodial Manager) and asked her to come to the control room. Ms. Dorsett did this and after viewing the CCTV footage she called Dan Wright (Governor) to the control room and showed him the CCTV footage. Mr. Wright spoke to Michael Lamb (Acting Deputy Governor) explaining what had been witnessed and informed him about the proposed course of action. Mr. Wright told Mr. Lamb that the intention was to intercept the Claimant and Mr. Harrison as they left the prison, to which Mr. Lamb agreed. 27. At the end of her shift the Claimant was exiting the prison carrying a bottle of the YP’s water she had taken from his canteen, with Mr. Harrison who was carrying his bag with the YP’s canteen items as it was too heavy for the Claimant to carry. Due to his bag’s weight, Mr. Harrison asked the Claimant again if it was okay and queried ‘is this cosher (sic)?’ the Claimant assured Mr. Harrison that she had had ‘got the okay.’ 28. As they were leaving, Ms. Dorsett asked the Claimant to go into the security office where Mike Rowett (Governor) was waiting. Mr. Rowett asked the Claimant why she was carrying the bottle of water and she responded confirming that she had taken it from a YP’s canteen. Mr. Rowett told the Claimant that taking items from a YP’s canteen was not allowed and that it was, for all intents and purposes, stealing (which it was). The Claimant also stated that she had taken other canteen items which were contained in Mr. Harrison’s bag.

Preliminary Matters

[29]Ms. Dorsett then asked Mr. Harrison to go into the security office which he did. Upon entering the security office the Claimant apologised to Mr. Harrison for using his bag to carry the YP’s canteen items. Mr. Rowett asked Mr. Harrison what he had in his bag and Mr. Harrison emptied the bag which revealed the remaining canteen items and Mr. Rowett said that he was not allowed to take a YP’s canteen items. Mr. Harrison told Mr. Rowett that the Claimant had said that it was okay to do so. The Claimant and Mr. Harrison then left the prison – separately – without any of the canteen items.

[30]That evening the Claimant sent Mr. Harrison a WhatsApp message stating, ‘Matt I know you most likely don't want to hear from me but I seriously didn't think I was doing any wrong. If I knew I was then obviously I would've never done it and I definitely wouldn't have put them in your bag. I've explained it all the gov and I told him that you even questioned me and that I said it was fine (.as I genuinely did think that). I'm really really sorry. X’

[31]On 31st August 2022 the Claimant and Mr. Harrison were suspended from work on full-pay whilst an investigation into their conduct occurred. The (identical) allegation against the Claimant and Mr. Harrison was that, ‘On 26/08/2022 at approx. 18:40 hours it was reported that you were discovered leaving the site with items from a young person’s canteen.’

[32]It was explained to the pair that suspension was deemed necessary due to the severity of the allegation they faced. They were also told that for the duration of suspension, it would be kept under review and that they must report to Adam Windess (Custodial Manager) – via telephone – every week on a Tuesday morning. The Claimant understood the terms of her suspension and the requirement to report to Mr. Windess every week.

[33]On 1st September 2022, Rebecca Christian (Head of Safety) was appointed by Mr. Lamb to investigate the allegation against the Claimant and Mr. Harrison and was supplied with a ‘Terms of Reference’ document. Whilst Ms. Christian knew of the Claimant and Mr. Harrison, she had had no prior specific involvement with them and was an impartial investigator. Having been appointed to investigate the allegations Ms. Christian set about her investigation with vigour and professionalism.

[34]The same allegation was put to the Claimant and Mr. Harrison, which was, ‘On 26/08/2022 at approx. 18:40 hours it was reported that you were discovered leaving the site with items from a young person’s canteen.’ On 30th September 2022 (the letters were incorrectly dated as ‘31/09/2022’) Mr. Lamb wrote to the Claimant and Mr. Harrison informing them of the allegation, that they were still on suspension with full-pay, and that Ms. Christian would be conducting the investigation into the allegation against them. In preparation for the investigation interviews, Ms. Christian viewed the CCTV footage which showed the Claimant and Mr. Harrison attempting to leave the prison with items from the YP’s canteen.

[35]There was a slight delay in Ms. Christian beginning her investigation due to availability of witnesses therefore, she extended the date by which the investigation was to be completed and notified both the Claimant and Mr. Harrison of the delay.

[36]Ms. Christian interviewed the Claimant and Mr. Harrison on 29th September 2022 (in separate interviews) and the Claimant attended her interview accompanied by Kyriacos Kyraicou (trade union representative). In interview, the Claimant admitted to, putting items from the YP’s canteen into Mr. Harrison’s bag after asking him if she could use it, having an intention to take the items off-premises for her own use, and giving some items to another YP as it was his birthday.

[37]The Claimant also admitted that Mr. Harrison had questioned if it was okay to take items from a YP’s canteen and that she had, wrongly, assured him that it was. Mr. Harrison would not have been in possession of the canteen items had the Claimant not asked if she could use his bag and further ask, if he would carry it as it was ‘too heavy.’ During her interview the Claimant maintained that it was common practise by staff to take items from a YP’s canteen who had left the prison. Whilst Ms. Christian considered that this was a possibility, she dismissed the possibility as she had made enquires about the alleged practice and was informed by the prison’s complaints department that there had only been one complaint in July 2022 when a YP had complained that his canteen had been thrown away following a cell search. Ms. Christian was correct not to accept the Claimant’s claim that what she did was ‘common practise’ as if it was, there would have been numerous complaints from YP’s.

[38]In her interview with Ms. Christian the Claimant did not name members of staff she alleged had taken a YP’s canteen either in the past or on the day the Claimant had been observed doing so. She also did not mention in interview that Mr. Taroni was ‘eating crisps’ whilst watching her take items from the YP’s canteen. In cross-examination the Claimant said that the reason she did not was because ‘I was told by my representative (Mr. Kyriacos) not to name names.’ This was untrue but if it was true, it would be astonishing. The Claimant believed that she was in grave danger of losing her job so would have told Ms. Christian if she had seen other staff taking YP’s canteen items. Further, in a conversation the Claimant had with Mr. Kyriacos on 6th February 2023, he asked the Claimant, ‘my only concern is why didn’t you mention names in the initial interview?’ If Mr. Kyriacos had indeed advised the Claimant not to ‘name names’ he would not have asked her the question or, the Claimant would have responded to say ‘YOU told me to’ or words to that effect. What the Claimant actually said in response was ‘I just didn’t give a load of names because we were in the middle of an interview.’ (Our emphasis).

[39]Mr. Kyriacos was also dubious concerning the timing of the Claimant submitting her grievance as he asked her, ‘Can I ask you a straight question? With this grievance that was put in, be honest with me, was it to stop the process, to close the process down, elongate it out, was that the reason for it?’ The Claimant responded that she had had ‘time to think’ and had been advised to submit her grievance prior to the disciplinary hearing; this was done to prevent the scheduled disciplinary hearing from proceeding.

[40]The Claimant subsequently became disillusioned with Mr. Kyriacos and raised a complaint against him on 16th February 2023.

[41]In his interview with Ms. Christian, Mr. Harrison gave a similar version of events i.e. that the Claimant had asked if she could use his bags to convey items from a YP’s canteen, he had questioned the Claimant about the legitimacy of doing so and she assured him that it was okay, he had no intention of keeping any of the items for himself but was merely assisting the Claimant at her behest, and that he was unaware of staff having taken items from a YP’s canteen in the past. This explains why Mr. Harrison asked the Claimant if she was allowed to take the items. Whilst Mr. Harrison remained dubious about the Claimant’s actions, he assisted her due to their friendly relations and he informed Ms. Christian of the WhatsApp message the Claimant had sent him following the incident [30]. Mr. Harrison was contrite and regretted his actions.

[42]In addition to the Claimant and Mr. Harrison, Ms. Christian also interviewed Ms. Verrell and Ms. Dorsett and received written statements from Messrs Rowett and Wright. Ms. Christian concluded her investigation reports on 21st October 2022 and sent them to Mr. Lamb the same day. After considering the evidence, Ms. Christian concluded that both the Claimant and Mr. Harrison had a case to answer in respect of theft/fraud and unprofessional conduct.

[43]Upon receipt of the investigation reports Mr. Lamb discussed the matter with Darren Wilkinson (interim Governing Governor) who decided that the matter should be heard at disciplinary hearings under the Respondent’s disciplinary policy.

[44]On 4th November 2022, Mr. Wilkinson wrote to both the Claimant and Mr. Harrison informing them that he would be holding a disciplinary hearing for each of them to determine allegations of(i) theft/fraud and

(ii) unprofessional conduct.

[45]Mr. Lamb emailed Rosemary Roberts (HR Case Manager) on 29th December 2022 for advice. Mr. Lamb was of the view that whilst the Claimant and Mr. Harrison’s actions constituted theft and would ordinarily be viewed as gross misconduct, there was a ‘substantial amount of mitigation’ due to a perception of alleged common practise and because of the overt manner in which the pair had committed the act. Ms. Roberts did not share Mr. Lamb’s view. She responded to Mr. Lamb the same day and stated that:(i) There was no proof of a common practise;

(ii) only the Claimant believed that there was indeed a common practise;

(iii) the actions constituted theft; and

(iv) any mitigation could be considered at a disciplinary hearing.

[46]In cross-examination, Mr. Lamb accepted that there was a delay, of around nine weeks, between him receiving the investigation reports and him furthering the process. However, he could not recall the actual reason/s for the delay other than there being confusion between him and Mr. Wilkinson about whom would be progressing the matter. However, whilst there was a delay, it was an innocuous delay and not due to the Claimant’s race or disability. Mr. Harrison faced the same delay as the Claimant and he did not share her protected characteristics.

[47]On 17th January 2023, Mr. Wilkinson wrote to the Claimant and Mr. Harrison informing them that the allegations against them would be heard at (separate) disciplinary hearings scheduled for 8th February 2023. Prior to his disciplinary hearing, Mr. Harrison resigned from employment on 19th January 2023 and provided the Respondent with four-weeks’ notice.

[48]On 3rd February 2023 the Claimant submitted a grievance to Mr. Wilkinson. The Claimant explained that she had a disability in that, ‘…my right foot is a size 3 and my other foot is a size 5. I only have two toes on my right side which are fused together and this foot is much thinner. My right leg is 2 centimetres shorter which causes problems such as aching hips and back aches. At age 6 or 7 I had surgery so I could wear shoes more easily. The second operation at 14 was to insert a metal plate. At 18 or 19 the metal plate was removed and my toes operated on. I am waiting for a 4th operation to reconstruct my foot.’ The Claimant went on to state that, ‘I did not declare this when applying for this job role as I was afraid it may affect my application. I also didn’t feel it was necessary to state as I was totally unaware that I was applying to be a prison officer. The role that I applied for was advertised as a Youth Justice Worker not a Prison Officer so therefore I didn’t at all think that I was going to be on my feet for the majority of my shifts.’ We do not accept that the Claimant was unaware that she had applied to be a prison officer. At the time the Claimant mentioned this, she had been in post for nearly two years. If she had found herself in a role she had not applied for or did not intend to do, she would have raised the matter at a much earlier stage. We also do not accept that her impairment caused her any impediment in being on her feet during shifts.

[49]The Claimant complained of many matters in her grievance some of which dated back to the beginning of her employment in 2021. For the purposes of the matters we had to determine the relevant complaints made, and matters mentioned, by the Claimant were that: She felt that she had been treated unfavourably because of her ‘age, gender and race’; Matthew Taroni (Senior Officer) had been eating crisps from a YP’s canteen on the day she had taken goods from a YP’s canteen; that it had never been explained to her what she should do with the canteen of a YP who had been released from the prison; she was still on paid suspension; Mr. Wilkinson was ‘prejudging’ her case; a proper and fair investigation had not been undertaken and it was discriminatory; the investigation had been delayed; and that throughout (our underlying) her service she had been treated less favourably due to either her age, sex, race and disability.

[50]The Claimant also mentioned that she would be making a subject access request (‘SAR’), wanted to see Mr. Harrison’s and other staff statements and the reason Mr. Harrison had resigned, and that her grievance should be heard prior to a disciplinary hearing. The Claimant had submitted her grievance on the advice of her ex-boyfriend’s grandmother whom the Claimant described as being ‘an experienced employment lawyer.’ Whilst the Claimant may well have felt that there were matters to grieve about, the main purpose of her submitting the grievance was to thwart the disciplinary process as she felt that she should not be subjected to it.

[51]On 5th February 2023 Mr. Wilkinson emailed the Claimant regarding her grievance. He advised the Claimant that he was unable to accept the grievance as it was not submitted on the correct form. He sent the Claimant a link to the correct grievance form ‘GRV1’ and advised her to be more specific as to the concerns she wished to raise. The Claimant did not complete the GRV1 form until 20th February 2023.

[52]Mr. Harrison attended a disciplinary hearing on 8th February 2023. The allegations against him were upheld and he was issued with a written warning effective for 12 months. However, due to his resignation, Mr. Harrison’s employment terminated soon after the disciplinary hearing was heard and sanction imposed.

[53]The Claimant failed to attend her disciplinary hearing on 8th February 2023 as she was signed off-work due to sickness. As a result of the sickness absence, the Claimant’s suspension was paused and her absence was managed under the Respondent’s sickness absence process.

[54]On 23rd February 2023, Tina Stone (custodial manager) took over the claimant’s line-management. Ms. Stone emailed the Claimant, that day, acknowledging her sickness absence and informing her that she wanted to make an occupational health referral. In a letter, also sent on 23rd February 2023, Ms. Stone informed the Claimant that from 23rd March 2023 her sickness absence would be unpaid as she would have exceeded her entitlement to paid sick leave. The Claimant was subsequently assessed by occupational health and Ms. Stone received an OH report on 10th March 2023. The OH report stated that the Claimant remained unfit for work (or to attend a disciplinary hearing) and that she had been advised of services she could contact for her ‘perceived work related stress.’

[55]Ms. Stone and Clare Baker (Governor) met with the Claimant at her home on 15th March 2023, to conduct an informal sickness absence review meeting. The Claimant said that once her fit-note ran out on 26th March 2023 she intended to call the Respondent and confirm she was fit for work. The Claimant also told Ms. Stone that she was contemplating study at Brighton University.

[56]On 21st April 2023, the Claimant attended a formal attendance meeting with Ms. Stone and Ms. Baker to manage her sickness absence (the Claimant had been on annual leave for two weeks from 26th March 2023) as she had had 29 days of sickness absence from 8th February to 26th March 2023. Ms. Stone acknowledged that she was aware of the grievance the Claimant had submitted and that the grievance would have to be investigated prior to the disciplinary hearing being heard.

[57]Ms. Stone sent the Claimant an outcome letter, regarding the formal attendance meeting, on 21st April 2023. As the Claimant had been off-work sick for a total of 35 days, in three periods, over the previous 12 months, the Claimant was issued with an unsatisfactory attendance warning stage 1 notice. The notice would be effective for 15 months and in accordance with the Respondent’s absence management process.

[58]On 25th April the Claimant emailed Mr. Wilkinson enquiring when her grievance would ‘go ahead.’ The Claimant also stated: That as she now had two-year’s service she had a right to present an unfair dismissal claim (as the Claimant had not been dismissed, she was warning the Respondent of possible consequences if she was ultimately dismissed); Mr. Taroni had not been disciplined for eating crisps; she was appealing the attendance stage 1 warning; and, wrongly, claimed that Mr. Harrison had not been disciplined. The Claimant also asked for her email to be added to her extant formal grievance.

[59]Mr. Wilkinson responded to the Claimant on 27th April 2025 with a grievance outcome. He had divided her grievance into two elements. Firstly, Mr. Wilkison explained to the Claimant that all the matters she complained of were outside of the usual timescales in which to raise a grievance, i.e. three months, and some allegations related to March 2021. Therefore, Mr. Wilkinson decided not to pursue the historic allegations via the grievance process but would instead commission a management enquiry into the allegations. Secondly, the Claimant’s allegations against other staff and of theft by colleagues would be investigated and the staff involved would be interviewed. Mr. Wilkinson also advised that the Claimant could appeal his outcome to Mr. Crossey if she so wished (within 10 working days).

[60]Just over two-hours after receiving the grievance outcome the Claimant emailed Mr. Wilkinson. She sought to drape the grievance procedure with a legal cloak. The Claimant contended that historic matters could be raised in a grievance ‘as a continuing act and the last act of victimisation or harassment’, Mr. Wilkinson’s HR advice was not accurate, she would issue an Employment Tribunal claim if her grievance was not dealt with, and that she would be entitled to a 25% Acas uplift. It was clear that the Claimant intended to intimidate the Respondent to ‘deal’ with her grievance. By ‘deal’ the Claimant meant uphold. Mr. Wilkinson, by way of a response, again reminded the Claimant that she could appeal his outcome via the appropriate channel. Subsequently, on 1st June 2023, the Claimant appealed her grievance outcome. The appeal was submitted 15 days outside of the prescribed time-limit of 10 days (which meant the Claimant should have appealed by no later than 11th May 2023) but was accepted and actioned by the Respondent nonetheless.

[61]During late June and early July 2023, Annette Russell (Management Coordinator) was in the process of arranging a date for the Claimant’s disciplinary hearing with the aim to hold it on 11th August 2023. However, as the Claimant and another attendee by the name of ‘Josh’ would be on annual leave at this time, the disciplinary hearing did not proceed.

[62]The Claimant’s grievance appeal was heard by Dr. Debra Baldwin (Governor) on 29th August 2023 and the Claimant attended represented by Hannah Martin – a friend. Dr. Baldwin heard the Claimant’s appeal as she was sufficiently independent and had not met the Claimant before or been involved in the disciplinary or attendance management process. On the morning of 29th August 2023, before the appeal hearing began, the Claimant submitted her grounds of appeal for the very first time. The Claimant’s timing was unreasonable.

[63]At the appeal hearing Dr. Baldwin informed the Claimant that a management enquiry had been completed by Martin Drobka (Head of Regimes) in mid-July 2023. Mr. Drobka had recommended management staff to undergo diversity training as a matter of good practise; not because of the Claimant’s complaints about alleged discrimination. Dr. Baldwin also discussed the Claimant’s disability and assured her that she would inform the Claimant’s manager to refer her to OH in order to assess her work capability as a prison officer. The Claimant also stated that she wished to appeal the sickness warning she was issued and Dr. Baldwin agreed to progress that matter.

[64]At the outset of the appeal hearing Dr. Baldwin made clear to the Claimant that she would not be dealing with matters unrelated to her grievance or being dealt with under a separate process i.e. her disciplinary and attendance matters. Dr. Baldwin also advised the claimant that she could not use the appeal process to raise a new grievance or re-hear the original grievance. Dr. Baldwin spent considerable time allowing the Claimant to make submissions and was thorough in her handling of the appeal. At the conclusion of the hearing the Claimant was asked if she wanted to raise anything further and the Claimant said, ‘No, I think we've covered a lot of it. Yeah yeah.’ Dr. Baldwin arranged to further meet with the Claimant on 21st September 2023 – after she returned from annual leave – to continue discussing the Claimant’s appeal of the grievance outcome.

[65]Following the appeal hearing Dr. Baldwin emailed Ms. Stone and Ms. Baker with an update, on 1st September 2023. Dr. Baldwin stated that the Claimant said she was registered disabled and could not stand ‘all day’ without pain. Dr. Baldwin asked that the Claimant be referred to OH for a capability assessment to evaluate whether or not she is able to carry out the full range of her duties.

[66]Within two-hours of receiving Dr. Baldwin’s email, Ms. Stone emailed the Claimant and informed her that she would be referring the Claimant to OH if she agreed. Ms. Stone also asked the Claimant to provide her with background as to her condition (which the Claimant provided) in order to properly inform OH. Also on 1st September 2023, Ms. Baker emailed the Claimant regarding her wish to appeal the sickness warning and apologised because she was unaware of the Claimant’s intention until receipt of Dr. Baldwin’s email. Ms. Stone said that she had sought HR advice and attached a sick leave excusal (‘SLE’) form for the Claimant to complete as soon as possible (as Ms. Stone was due to go on leave from 6th September 2023).

[67]On 6th September 2023, after having assessed the Claimant, OH sent a report to the Ms. Stone. The OH report advised that the Claimant was fit enough to attend a disciplinary hearing and that once the disciplinary hearing had taken place, a further OH assessment should be undertaken in order to assess the Claimant’s fitness from work and to consider any reasonable adjustments. Disciplinary Hearing

[68]On 7th September 2023, the Claimant attended a disciplinary hearing and was accompanied by Ms. Martin. The hearing was chaired by Mr. Crossey and the following witnesses attended: Ms. Christian, Ms. Verall and Ms. Dorsett. Messer’s Gurr and Taroni3 were unable to attend as they were on leave. The Claimant confirmed that she had received the relevant documents and had adequate time to prepare for the hearing.

[69]Mr. Crossey (who had read all the necessary paperwork for the hearing) asked questions of the management witnesses. The Claimant did not ask Ms. Christian questions but did ask Ms. Verall and Ms. Dorsett questions. Mr. Crossey then asked the Claimant questions in respect of the allegations against her after which, she made her submissions. Mr. Crossey then adjourned to consider the evidence and arrive at a decision. 3 The aforementioned were all witnesses for management; the Claimant did not call any witnesses of her own.

[70]When the hearing resumed Mr. Crossey told the Claimant that the allegations against her were proven and that she had not established that taking items from a YP’s canteen was common or accepted practise. Mr. Crossey also explained that the delay in scheduling the hearing stemmed from the Claimant’s absences due to illness and annual leave and availability of other witnesses. The reason for delay which Mr. Crossey outlined were the true reasons for delay and any lag, was not because of the Claimant’s protected characteristics. Mr. Crossey then asked the Claimant if she would like to adjourn to prepare mitigation before he decided upon a sanction and the Claimant stated that she would be grateful for an adjournment.

[71]After a short adjournment the Claimant said that she had nothing further to say. Therefore, Mr, Crossey informed the Claimant that whilst dismissal was a sanction available to him, he had decided that the appropriate sanction was a final written warning of 12-months duration and explained to the Claimant that she had the right to appeal his decision. Mr. Crossey also showed benevolence to the Claimant by confirming that even though her suspension from work was now lifted, he did not expect her to attend her shift the next day as it may be ‘a bit soon’. He told the Claimant that he would speak to her line manager regarding the Claimant’s return to work. The Claimant thanked Mr. Crossey and the hearing ended. Mr. Crossey sent the Claimant an outcome letter on 11th September 2023.

[72]The Claimant was due to return to work on 11th September 2023 (to which she agreed) – when Ms. Stone would be on leave – so Ms. Stone sent her a reassuring email on 7th September 2023 stating: ‘Hi, Governor informed me that you will be returning on Monday 11th will be nice to see you back. Unfortunately, I will not be at work but I have asked CM David Boorman to meet you at the gate@ 08:30 to make sure you can get yourself back on Trakka and just saying hello to everyone getting your self sorted with e-mails etc and making sure you can still get on Nomis etc I will be in on Tuesday I see you have a OH appointment Tuesday so I can catch up with you then See you soon’ In Ms. Stone’s email she acknowledged that the Claimant was due to see OH on 12th September 2023 and the Claimant was well aware of the appointment. Resignation

[73]On 11th September 2023, the day before the Claimant was scheduled to be assessed by OH to explore reasonable adjustments, she resigned with immediate effect via a lengthy email sent to Mr. Crossey. In her resignation email the Claimant stated:(a) She had been ‘shocked’ to receive a final written warning (in cross-examination the Claimant stated that she had been expecting to be dismissed so a final written warning would have been a relief; not a shock);

(b) the ‘whole process was very confusing’ and that nobody seemed interested in her grievance;

(c) the disciplinary hearing was ‘flawed’ as officers were absent (notwithstanding that the Claimant did not take issue with this at the hearing itself);

(d) the disciplinary sanction was not ‘within a range of reasonable responses by a reasonable employer’;

(e) the final written warning was issued with a view to eventually dismiss her (albeit the Respondent could have summarily dismissed the Claimant having found the serious allegations against her proven);

(f) she had ‘already issued claims for race, age, sex and disability discrimination in the Employment Tribunal’; and

(g) that she had been disciplined because she was ‘young and black’ (notwithstanding Mr. Harrison had received a written warning (which was not a final warning due to his lesser role in the wrongdoing)).

[74]Much of what the Claimant wrote in her resignation email was not correct (see text in brackets at paragraph 73(a) to (g) (supra). When the Claimant resigned, she was fully aware that if she had returned to work as planned, she would be allowed to get up-to-speed and that she had an OH appointment on 12th September 2023 where a phased return to work, mantal health, and adjustments could be discussed.

[75]At the point of resignation the Claimant had already applied to begin an accountancy course in January 2024 and had started to re-think her future options as she no longer wanted to work in a prison. This was conceded by the Claimant in the final stages of cross-examination.

[76]On 28th September 2023, Dr. Baldwin sent the Claimant a grievance appeal outcome letter as the Claimant had failed to attend a meeting with Dr. Baldwin on 21st September 2023. The grievance appeal outcome was that the Claimant’s complaint regarding a failure to hear her appeal against her sickness absence warning was upheld but could not be remedied due to her resignation. All other grounds of the Claimant’s grievance appeal were not upheld. Relevant Law Time limits for EqA claims

Relevant Law

[77]S.123 EqA states: (1) Subject to proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. … (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.

[78]In terms of case law: i. For the “conduct extending over a period” to be relevant, something that is found to have been the relevant discrimination must be in time for it to render the out of time claims justiciable by virtue of “conduct extending over a period” (South Western Ambulance Service NHS Foundation Trust v King UEAT/0056/19 at [33]); ii. with respect to the just and equitable extension arguments, it is for the Claimant to show discretion to extend time should be exercised and that there is no presumption to exercise the discretion – extension is the exception not the rule: Robertson v Bexley Community Centre4

[2003] EWCA Civ 576

[2003] IRLR 434

at [25] 4 Indeed prior to this case the EAT already made clear that just because a fair trial is still possible it does not automatically to lead time being extended: Newnham v Transco plc

EAT/125/00

EAT/126/00

EAT/844/00

at [29] 1. it is always necessary for tribunals, when exercising their discretion, to identify the cause of the complaint’s failure to bring the claim in time: Accurist Watches Ltd v Wadher5 (

EAT/102/09

) at [15] 2. moreover, as the purpose of time bars is to ensure finality and certainty, it is difficult to see how a claimant can discharge such a burden of showing that it is just and equitable to extend time if either(a) he/she does not explain the delay or

(b) the explanation is disbelieved: Edomobi v La Retraite RC Girls School

UKEAT/0180/16

at [31].6 Constructive Unfair Dismissal

[79]Under s.95(1)(c) ERA, an employee is considered to have been dismissed in circumstances where ‘the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct’. This is commonly known as constructive dismissal.

[80]In order for there to have been a constructive dismissal there must have been:(i) A repudiatory or fundamental breach of the contract of employment by the employer;

(ii) a termination of the contract by the employee because of that breach; and

(iii) the employee must not have affirmed the contract after the breach, for example by delaying their resignation. 5 Langstaff J, without making any citation or reference to this case, equally reaches the same conclusion in Abertawe Bro Morgannwg University Local Health Board v Morgan UKEAT//0305/13 at [52] also stated that “'The first question in deciding whether to extend time is why it is that the primary time limit has not been met…” 6 Indeed, the Court of Appeal in Abertawe Bro Morgannwg University Local Health Board v Morgan

[2018] EWCA Civ 640

;

[2018] ICR 1194

accepted that whilst the test is broad with no specific list of factors to be considered, with lack of a good reason for delay not operating as an absolute bar, two factors that are always relevant: the reason for the delay and any prejudice caused to the other parties (at [18]-[20], and [24]-[26]).

[81]In Western Excavating (ECC) Ltd v. Sharp

[1978] ICR 221

, CA, it was said ‘If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed.’

[82]An employee can rely on breach of an express or implied term of the contract of employment. In cases of alleged breach of the implied term of trust and confidence the test is set out in the case of Malik v. Bank of Credit and Commerce International Ltd

[1998] AC 20

; namely, has the employer, without reasonable and proper cause, conducted itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. The test of whether there has been such a breach is an objective one (see Leeds Dental Team Ltd v. Rose

[2014] IRLR 8

[83]It is open to an employee to rely on a series of events which individually do not amount to a repudiation of contract, but when taken cumulatively are considered repudiatory. In these sorts of cases the ‘last straw’ in this sequence of events must add something, however minor, to the sequence (London Borough of Waltham Forest v. Omilaju

[2005] ICR 481

[84]On the question of waiving the breach, the Western Excavating case makes clear that the employee ‘must make up his mind soon after the conduct of which he complains; if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will regarded as having elected to affirm the contract.’

[85]It is now settled post Buckland v. Bournemouth University

[2010] EWCA Civ 121

;

[2010] IRLR 445

that the strict ‘objective’ contract breach (‘repudiatory breach’) test applies to constructive dismissal cases and the Court of Appeal has approved the 4-part guidance outlined by the EAT in the manner in which a Tribunal’s should approach unfair constructive dismissal cases – Sedley LJ at [22]-[23] ‘[22] The EAT considered this issue in great detail. The need for such consideration arose from the proliferation of recent authority and dicta on the subject, not all of it consistent. With both gratitude and relief this court can refer the reader to the detailed description and thoughtful analysis of these in the judgment of the EAT

[2009] ICR 1042

, §24–46. For my part I would respectfully endorse both EAT's reasoning and its conclusion at §47: “In summary, we commend a return to settled authority, based on the following propositions:(1) In determining whether or not the employer is in fundamental breach of the implied term of trust and confidence the unvarnished Mahmud test should be applied.

(2) If, applying the Sharp principles, acceptance of that breach entitled the employee to leave, he has been constructively dismissed.

(3) It is open to the employer to show that such dismissal was for a potentially fair reason.

(4) If he does so, it will then be for the Employment Tribunal to decide whether dismissal for that reason, both substantively and procedurally (see Sainsbury v Hitt

[2003] IRLR 23

), fell within the range of reasonable responses and was fair. … [29] Where, if at all, the reasonableness of the employer’s conduct may enter the picture is through the statutory additions to the law of contract. Assuming, in other words, that there can be conduct which is both reasonable and a fundamental breach of contract, a constructive dismissal claim would be impossible to decide unless stage (1) was tested objectively on ordinary principles and reasonableness deferred to stage (4).’ Direct Race and Disability Discrimination

[86]S.13 EqA provides that (so far as material), ‘A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.’ …

[87]Under s.23(1) EqA, where a comparison is made, there must be no material difference between the circumstances relating to each case. It is possible to compare with an actual or hypothetical comparator.

[88]In order to find discrimination has occurred, there must be some evidential basis on which we can infer that the Claimant’s protected characteristic is the cause of the less favourable treatment. We can take into account a number of factors including an examination of circumstantial evidence.

[89]We must consider whether the fact that the Claimant had the relevant protected characteristic had a significant (or more than trivial) influence on the mind of the decision maker. The influence can be conscious or unconscious. It need not be the main or sole reason, but must have a significant (i.e. not trivial) influence and so amount to an effective reason for the cause of the treatment.

[90]In many direct discrimination cases, it is appropriate for a Tribunal to consider, first, whether the Claimant received less favourable treatment than the appropriate comparator and then, secondly, whether the less favourable treatment was because of race. However, in some cases, for example where there is only a hypothetical comparator, these questions cannot be answered without first considering the ‘reason why’ the Claimant was treated as he was.

[91]S.136 EqA sets out the relevant burden of proof that must be applied. A twostage process is followed. Initially it is for the Claimant to prove, on the balance of probabilities, primary facts from which we could conclude, in the absence of an adequate explanation from the Respondent, that the Respondent committed an act of unlawful discrimination.

[92]At the second stage, discrimination is presumed to have occurred, unless the Respondent can show otherwise. The standard of proof is again on the balance of probabilities. In order to discharge that burden of proof, the Respondent must adduce cogent evidence that the treatment was in no sense whatsoever because of the Claimant’s race. The Respondent does not have to show that its conduct was reasonable or sensible for this purpose, merely that its explanation for acting the way that it did was non-discriminatory.

[93]Guidelines on the burden of proof were set out by the Court of Appeal in Igen Ltd v. Wong

[2005] EWCA Civ 142

;

[2005] IRLR 258

and we have followed those as well as the direction of the court of appeal in the well-known case of Madarassy v. Nomura International plc

[2007] IRLR 246

, CA. The recent decision of the Court of Appeal in Efobi v. Royal Mail Group Ltd

[2019] ICR 750

confirms the guidance in these cases applies under the EqA.

[94]The Court of Appeal in Madarassy, stated: ‘The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a Tribunal ‘could conclude’ that on the balance of probabilities, the Respondent had committed an unlawful act of discrimination.’ (56)

[95]It may be appropriate on occasion, for the Tribunal to take into account the Respondents’ explanation for the alleged discrimination in determining whether the Claimant has established a prima facie case so as to shift the burden of proof. (Laing v. Manchester City Council and others

[2006] IRLR 748

; Madarassy.) It may also be appropriate for the Tribunal to go straight to the second stage, where for example the Respondent assert that it has a nondiscriminatory explanation for the alleged discrimination. A Claimant is not prejudiced by such an approach since it effectively assumes in his favour that the burden at the first stage has been discharged (Efobi).

[96]We are required to adopt a flexible approach to the burden of proof provisions. As noted in the cases of Hewage v. GHB

[2012] ICR 1054

and Martin v. Devonshires Solicitors

[2011] ICR 352

, they will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. However, they may have little to offer where we in a position to make positive findings on the evidence one way or the other.

[97]Allegations of discrimination should be looked at as a whole and not purely on the basis of a fragmented approach (Qureshi v. London Borough of Newham

[1991] IRLR 264

, EAT. This requires us to “see both the wood and the trees” (Fraser v. University Leicester UK

EAT/1055/13

at paragraph 79). Discrimination Arising from Disability

[98]S.15 EqA provides that:(1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.

[99]Guidance as to whether treatment is because of something arising in consequence of disability is provided in Pnaiser v. NHS England

[2016] IRLR 170

, by Simler P (as she then was) at §31 and the correct approach to justification was summarised at §10 in MacCulloch v. ICI

[2008] ICR 1334

[100]The principle of proportionality requires an objective balance to be struck between the discriminatory effect of the measure and the needs of the undertaking. The more serious the disparate adverse impact, the more cogent must be the justification for it (see: Hardys & Hansons plc v. Lax

[2005] IRLR 726

per Pill LJ at paragraphs [19]–[34], Thomas LJ at [54]– [55] and Gage LJ at [60]). The burden of proof is on the Respondent to establish justification (see: Starmer v British Airways

[2005] IRLR 862

at [31]).

[101]In the context of S.15(1)(b) EqA, this means that a Tribunal must objectively balance whether the conduct in question is both an appropriate and reasonably necessary means of achieving the legitimate aim. It is for an Employment Tribunal to weigh the reasonable needs of the undertaking against the discriminatory effect of the employer's measure and to make its own assessment of whether the former outweigh the latter.

[102]In Birtenshaw v Oldfield

[2019] IRLR 946

, the EAT held that the Tribunal's consideration of that objective question should give a substantial degree of respect to the judgment of the decision-maker as to what is reasonably necessary to achieve the legitimate aim provided he has acted rationally and responsibly. To this end, the Explanatory Notes to the EqA explain at paragraph 70 that section 15 ‘is aimed at reestablishing an appropriate balance between enabling a disabled person to make out a case of experiencing a detriment which arises because of his or her disability and providing an opportunity for an employer or other person to defend the treatment.’

[103]The test under s.27 EqA is as follows:(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.

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

[104]Martin v. Devonshire

[2011] ICR 352

, set out at §22: ‘The question in any claim of victimisation is what was the “reason” that the respondent did the act complained of: if it was, wholly or in substantial part, that the claimant had done a protected act, he is liable for victimisation”. Conclusions and Analysis Credibility of Evidence

[105]We find that the Claimant’s evidence was not straight forward and at times, inconsistent. The Claimant stated in her evidence that she had emailed a copy of her grievance to Ms. Stone but had not stated that in her witness statement or in communications with the Respondent. There was no email before us or provided by the Claimant to corroborate her assertion. The Claimant also responded to a question put by Mr. Moretto – in respect her response to having received a final written warning – by saying she had been ‘relieved.’ In her resignation letter of 11th September 2023 the Claimant stated that upon receipt of the final written warning ‘I was shocked.’ ‘Relief’ and ‘shock’ are entirely different reactions and it difficult to see how the Claimant could have been both shocked and relived at the same instance. During cross-examination the Claimant made assertions which she had not previously raised. One example is that prior to this Hearing, the Claimant’s version of events was that Mr. Harrison was merely carrying the YP’s canteen for her as she did not have a bag and not could carry the canteen herself. In crossexamination the Claimant alleged for the first time that she had had an agreement with Mr. Harrison to share the YP’s canteen as ‘he asked if he could have some and I said yes.’ Mr. Moretto took the Claimant to the passage in her grievance where she had stated ‘…I basically begged him to not let Matthew get into trouble for this as it was me, he just carried it for me’ and the Claimant confirmed this to be the truth. However, she then dissembled and said that Mr. Harrison did want items from the YP’s canteen but she did not want to get him in trouble. We had difficulty in accepting the Claimant’s ‘fresh’ version of events.

[106]We found the Respondent’s witnesses’ evidence to be credible, Consistent, and corroborated by the documentary evidence. Where there was a dispute, we preferred the evidence of the Respondent witnesses. Direct Race Discrimination

[107]Two-thirds of the Claimant’s alleged instances of less favourable treatment under this head of claim were a failure of the Respondent to do things. Naturally, where those things did not happen, we have not found facts that they did. Our conclusions on the Claimant’s specific allegations (following our findings of fact) are:- LoI7 2(a) Suspend the Claimant on 31 August 2022 and continuing to do so for an unreasonable period (actual comparators relied upon: Matthew Harrison, Matthew Taroni, George Gurr, Claire Vellam)

[108]The Claimant was suspended by the Respondent, as was Mr. Harrison, because the Respondent suspected the pair of wrongdoing in circumstances where it was reasonable for the Respondent to harbour that suspicion. The Respondent did not suspend Mr. Taroni, Mr. Gurr, or Ms. Vellam as they were not suspected of the misconduct the Claimant and Mr. Harrison were. Whilst the Claimant is of mixed heritage Mr. Harrison is white. Both the Claimant and Mr. Harrison were suspended in identical circumstances and there was no difference in treatment and Mr. Harrison’s suspension was not expedited whilst the Claimant’s was, as she alleges, unreasonably delayed.

[109]On the balance of probabilities there are no facts from which we can infer that the Claimant was treated less favourably because of her race and she has not raised a prima facie case of a difference in treatment because of her race or at all. LoI 2(b) Subject the Claimant to an ongoing disciplinary investigation and disciplinary process with a possible outcome of gross misconduct (from 31 August 2022 onwards) (actual comparators relied upon: Matthew Harrison, Matthew Taroni, George Gurr, Claire Vellam)

[110]As with the previous allegation, both the Claimant and Mr. Harrison were investigated and dealt with under the Respondent’s disciplinary procedure and there was no less favourable treatment meted to the Claimant. Considering the severity of the allegations the Respondent believed the Claimant to be culpable of it was entitled to deal with the issue under its disciplinary process. The burden of proof has not passed to the Respondent in respect of this allegation. 7 List of issues [146]. LoI 2(c) Fail to carry out a fair investigation process (from 31 August 2022 onwards)

[111]There is a distinction between carrying out a fair investigation process and carrying out a flawless investigation process. An investigation process, like most other processes, is seldom a work of absolute perfection; nor can it usually be expected to be. What is of relevance to us in order to determine this allegation is if a fair investigation was carried out and whether or not the Claimant was treated less favourably in the carrying out of that process due to her race.

[112]The Claimant contention is that it was necessary to interview witnesses that dealt with YP’s canteens. This is not an unreasonable expectation. However, the Respondent did interview Messer’s Harrison, Gurr, and Taroni as it was appropriate to do. Whilst the Respondent could have interviewed Ms. Vellum it was not necessary due to the information they had accumulated from interviewing other staff. The Claimant was not treated less favourably in this respect than Mr. Harrison. Both the Claimant and Mr. Harrison’s investigation reports were similarly outlined with the exception that Mr. Harrison’s investigation report had extra mitigation. This was justified due to the circumstances viz Mr. Harrison was in effect, for want of a better word, a ‘mule’ who carried items from the YP’s canteen at the Claimant’s behest and for the Claimant. He had not coveted items from the canteen and indeed questioned the Claimant about the validity of her actions. We are content with the Respondent’s explanations as to how and why they carried out an investigation process and do not accept that the process was unfair due to the Claimant’s race or at all. LoI 2(d) Fail to progress the disciplinary process (from 21 October 2022 onwards)

[113]From the evidence we heard and read it is apparent that there was some delay in progressing with the Claimant’s disciplinary matter. However, this is not the same as failing to progress it because of the Claimant’s race or any other protected characteristic. The Claimant was suspended from work on 31st August 2022 and attended an investigation interview on 29th September 2022. An investigation report was produced on 21st October 2022. This all occurred within a reasonable timescale. There then was some delay between the end of October 2022 to the end of December 2022 caused by a misunderstanding as to who would be progressing the matter and we accept Mr. Wilkinson’s evidence on this point. The other reasons for delay were attributable to the Claimant herself. The Claimant was invited to attend a disciplinary hearing on 8th February 2023 but she failed to attend due to illness. Prior to this the Claimant had raised a grievance on 3rd February 2023 in which she made historic allegations which needed to be investigated and was away abroad on holiday in July 2023 resulting in further delay.

[114]The Claimant has not raised a prima facie case of discrimination but even if she had, we are satisfied that that the reason for any delay was not because of the Claimant’s race. LoI 2(e) Fail to properly hear the grievance by not dealing with a large number of points raised within the grievance (from 3 February 2023 onwards)

[115]In cross-examination, the Claimant accepted that the Respondent’s grievance policy stated that grievances should be raised ‘as soon as possible following the event giving rise to the concern but in all within 3 months’ and that that conduct and disciplinary issues are not dealt with under the grievance policy. Despite the Claimant raising historic matters in her grievance (i.e. matters more than three months old) and not submitting it on the appropriate form, the Respondent nevertheless accepted the grievance and sought to properly address it. Indeed, Mr. Wilkinson provided helpful and appropriate advice to the Claimant in an email on 5th February 2023 stating, ‘Hi Chantelle Hope you are well. Unfortunately, I cannot accept a grievance that isn’t on the correct form. It needs to be on the correct documentation so it can be logged with SSCL and then tracked. Once you have completed the GRV1 (grievance form) it needs to be submitted to your line manager, not directly to me. GRV 1s are managed at the lowest level possible to begin with, this allows line managers to hopefully deal with issues/concerns as effectively and quickly as possible. I would also ask that you try and be more specific about what concerns you are raising and most importantly what you would like to see completed/resolved in relation to individual concerns that you are citing. Grievances (sharepoint.com) https://hmpps.myhub.sscl.com/hr-and-pay/Helping-you-at-work-Helpingstaff-at-work/manage-a-formal-grievance There are two links above, the first one will give you advice and guidance on submitting grievances and the second is a link to a GRV 1. Nicole – looped in as my HRPM. Regards Darren’, and on 27th April 2023 Mr. Wilkinson explained to the Claimant how he had addressed the Claimant’s grievance and provided her with an outcome.

[116]On a balance of probabilities we do not accept that the Claimant was treated less favourably by the Respondent in dealing with her grievance or that her race played any part in how the grievance was dealt with and the Claimant has not produced any evidence to corroborate her allegation. The Reason why the Respondent dealt with the Claimant’s grievance by commissioning a Management Enquiry is because her allegations were very historic and serious allegations had been made against colleagues which needed to be investigated via the Management Enquiry process. LoI 2(f) Fail to progress the grievance appeal process within a reasonable period of time (from 1 June 2023 onwards) and LoI 2(g) Fail to properly hear the grievance appeal by not dealing with a large number of points raised within the grievance

[117]The Claimant received her grievance out come on 27th April 2023 but did not appeal the outcome until 1st June 2023 which was submitted on an incorrect form and well outside of the 10-day time limit in which to appeal. The Claimant was invited to, and attended, a grievance appeal hearing on 29th August 2023. Again, whilst there was a delay between the Claimant appealing her grievance outcome and the date of the grievance appeal hearing, the Respondent could have decided not to accept the grievance appeal as the Claimant had submitted it out of time. The fact that they Respondent did progress the grievance appeal it is not an action which evidences any unfavourable treatment.

[118]We accept Mr. Crossey’s oral evidence that the content of the Claimant’s Grievance appeal was complicated and that there were many things occurring concurrently. In addition to the Claimant’s grievance appeal, the Respondent was dealing with the Management Enquiry instituted due to the Claimant’s allegations against her colleagues; many of which were very historic. Any delay was not because of the Claimant’s race or disability.

[119]The Claimant’s allegation that the grievance appeal was not heard properly or that many points in the appeal were not dealt with is simply not made out. It is abundantly clear from the transcript of the grievance appeal hearing that all relevant matters the Claimant raised in her appeal were covered and discussed. At the conclusion of the appeal hearing the Claimant herself acknowledged that a lot of ground had been covered and when asked if there was anything else, the Claimant said there was not.

[120]There was no unfavourable treatment of the Claimant and she has failed to raise a prima facie case in this regard. LoI 2(h) Fail to deal with the issues raised by the Claimant in her grievance appeal at the disciplinary hearing

[121]It is wholly unreasonable for the Claimant to expect the Respondent to deal with issues related to her grievance to be dealt with at a disciplinary hearing. Whilst both matters were being dealt with concurrently they were two distinct processes dealt with by different individuals. What is important is that the grievance appeal hearing dealt with matters contained in the Claimant’s grievance appeal and matters pertaining to the allegations of misconduct against the Claimant were dealt with at the disciplinary hearing. We have found that this di happen so the burden of proof has not passed to the Respondent and this allegation is not made out. LoI 2(i) Giving a final written warning to the Claimant for gross misconduct.

[122]The Claimant did commit gross misconduct and it would have been reasonable for the Respondent to have dismissed her in the circumstances. Issuing the Claimant with a final written warning was a most reasonable sanction and not unfavourable treatment on grounds of race or an act of discrimination. This allegation fails and the Claimant has not discharged the burden of proof. Direct Disability Discrimination LoI 7(a) to (e)

[123]Due to our findings in this judgment and the reasoning contained within our analysis in the preceding paragraphs, in respect of direct race discrimination, the Claimant’s allegations under this head of claim are not made out and fail. The Claimant has not established a prima facie case of direct disability discrimination and failed to put the allegations to the respondent witnesses during cross-examination. Discrimination Arising from Disability s.15 Equality Act 2010

[124]We have not found, as fact, that the Claimant was unable to stand for long periods so that cannot be something which arises in consequence of the Claimant’s disability. Subsequently, the Respondent could not have treated the Claimant unfavourably under s.15 EqA for something which did not arise from her disability.

[125]The Claimant’s allegations of unfavourable treatment under s.15 EqA are the same as those pleaded under her s.13 EqA complaints which we have discussed (supra). For the same reasons as explained, the Claimant has failed to establish that she was treated unfavourably because of something arising from disability.

[126]Even if we are wrong on this, we accept that the Respondent’s treatment of the Claimant was a proportionate means of aching the legitimate aim of, ‘The need to comply with the Respondent’s conduct and professionalism policies to ensure a professional and trustworthy workforce of a high standard which commands respect and is beyond any suspicion of abuse of their position.’

[127]It is accepted by the Respondent that the Claimant carried out protected acts by raising a grievance complaining of race and disability discrimination and then by appealing the outcome of that grievance. LoI 16(a) Giving the Claimant a sickness absence warning (on 21 April 2023)

[128]Whilst Ms. Stone did indeed issue the Claimant with a sickness absence warning there is no evidence that Ms. Stone was involved in the Claimant’s grievance or aware that she had done a protected act. In cross-examination the Claimant alleged that she emailed her grievance to Ms. Stone but there is no evidence of this having happened and the Claimant has not produced the alleged email. We accept that Ms. Stone’s was told at the meeting on 21st April 2023 that the Claimant had raised a grievance but we also accept Ms. Stone’s evidence that she had not been sent the grievance in advance of the meeting and was unaware of the Claimant’s complaints of discrimination within her grievance.

[129]Whilst being issued with a sickness absence warning could be a detriment, it was not issued because the Claimant had done a protected act. Therefore, this allegation fails. LoI 16(b) to (e)

[130]As discussed above, we have found that the Respondent did not do the things alleged in the LoI 16(b) to (e) and thus, the Claimant was not subjected to a detriment for having done a protected act and these allegations are not made out. LoI 16(f) Giving a final written warning for gross misconduct

[131]The Claimant was given a final written warning (which is a detriment) for gross misconduct as she had committed gross misconduct (see paragraph 122 (supra)) and not because the Claimant had done a protected act. The Claimant has not proven a nexus between the final written warning being issued and her protected acts.

[132]The disciplinary hearing at which the Claimant was issued with a final written warning took place after the submission of her grievance but save that chronological fact, we have seen no evidence to suggest that the sanction was for any other reason than the finding of the Respondent that the Claimant was guilty of gross misconduct. This allegation is Constructive Dismissal LoI 20 (a) Subject the Claimant to race discrimination, disability discrimination and victimisation as set out above

[133]Our findings (supra) are that the Respondent did not subject the Claimant to race discrimination, disability discrimination, or victimisation. Therefore, this allegation cannot succeed as the Respondent did not commit a repudiatory breach of the Claimant’s contract of employment. LoI 20(b) Fail to offer any support in relation to her mental wellbeing on returning to work after a year’s suspension and LoI 20(c) Require an immediate return to duties before obtaining an Occupational Health Report and having reasonable adjustments in place

[134]This allegation is contradicted by the Claimant’s own oral evidence during cross-examination. Several times in response to Mr. Moretto’s questions, the Claimant unequivocally stated that Ms. Stone had been supported and assisted her regarding her well being.

[135]On 3rd March 2023 Ms. Stone had asked the Claimant for consent to refer her to OH in respect of stress and offered to meet her away from work to minimise her stress or anxiety. Ms. Stone did meet with the Claimant at her home, on 15th March 2023, as an adjustment to reduce the Claimant’s stress. Ms. Stone also provided the Claimant with information about where she could get assistance and support for mental health issues, sent her encouraging emails, kept her updated about work issues, and planned for her re-integration into work following her absence. Ms. Stone arranged for the Claimant to be assessed by OH and she attended an OH appointment on 6th September 2023 prior to her return to work.

[136]The Claimant has failed to provide any evidence supporting these allegations so they are dismissed as they are not made out.

[137]We have not seen or heard any evidence that the Respondent acted in a manner which was calculated or likely to damage or seriously destroy the relationship of trust and confidence between it and the Claimant. There was no fundamental breach of contract which entitled the Claimant to resign.

[138]The Claimant resigned of her own volition as she became disheartened in her role of prison officer and wanted to pursue an alternative career. The Claimant was candid in her oral evidence that she did not want to continue working as a prison officer and had made enquiries to study at university as she wanted to further her education. The Claimant’s resignation was prompted by her wanting to attend university and follow an alternative career path,. This is commendable. However, that was the real reason the Claimant resigned; it was not because she was forced to resign due to the alleged actions of the Respondent. The Claimant was not constructively unfairly dismissed.

[139]For these reasons the Claimant’s complaints are dismissed.

[140]Due to our findings we do not need to consider the issue of time limits or jurisdiction.