Mrs J Baines v Gangmaster Labour Abuse Authority: 2303794/2023
EMPLOYMENT TRIBUNALS
Case No 2303794/2023
Between
Mrs J BainesClaimantGangmaster Labour Abuse AuthorityRespondent
Before
Employment Judge Truscott KCIn person for claimantMr P Bownes solicitor for respondentDate 10 December 2025
REASONS
[1]This preliminary hearing was fixed on 2 February 2024 by EJ McLaren to address the following issues: a) the claimant's application to amend the claim form; b) any changes to the list of issues since today's hearing; c) whether any guidance with regard to the number of or length of witness statements is required; d) if the length of the final hearing remains appropriate; e) the listing of any judicial mediation/ alternative dispute resolution; and f) any outstanding matters between the parties.[2]There was a bundle of documents to which reference will be made where necessary.[3]At the previous case management hearing, EJ McLaren narrated as follows [115]:53. The claimant had also provided further particulars. She had originally done so in a document on 2 October 2023. She then sent a further document on 7 November 2023. The claimant confirmed that we were to disregard the October document as it was a draft. 7 November document contains the full particulars that she wishes to rely on in addition to her claim form.54. It was the claimant’s primary position that nothing in the document on 7 November was new and that her claim form should be understood as containing the claim for whistleblowing and reasonable adjustments and all the detail that supports these. The respondent disagreed and considers that these are matters which would require an amendment application.55. We went through the claim form together and I confirmed to the claimant that ticking a box to refer to the regulator being notified is not sufficient without anything more to identify a whistleblowing claim is being brought. Further, reference to documents that were not provided was not sufficient to identify a claim where there is no other reference on the face of the form to this claim. I’m satisfied that within the ET1 the claimant has raised only three matters. Her claims are therefore, subject to a successful amendment application, a claim for constructive unfair dismissal, a claim for discrimination and a claim for unpaid wages.
Findings
[1]The claimant was employed by the respondent as Senior Investigating Officer for South East and London, from 6 January 2020 until 29 September 2023. She resigned on 18 July 2023.[3]The claimant produced a draft timeline of events [91] which is set out here (the full narrative has been edited by the Tribunal and emphasis added to focus on matters relevant to this hearing): Date Event May - July 2022 Change in behaviour noted in claimants direct report Paul Armstrong, over a period of time around conduct with another staff member and other issues. 05/07/2022 Paul Armstrong lodges grievance against claimant and Ian Waterfield for bullying, harrassment and discrimination. 06/07/2022 Emma Coxon submits Paul Armstrongs grievance to Home Office PSU for investigation. 06/07/2022 Emma Coxon seeks advice regarding the claimant asking about submitting a 'counter grievance'. Richard Murray advises based on this question. 07/07/2022 Claimant submits formal grievance against Paul Armstrong for bullying, harrassment, discrimination and false/vexatious/malicious allegations against her. 8/7/22 - 17/7/22 Claimant on leave 19/07/2022 Claimant requests update on progression of grievance submitted 7/7/22. Emma Coxon had not notified Paul Armstrong of the grievance against him. Emma Coxon suggests mediation. Jul-22 Claimant notes that Paul Armstrong is self tasking and actioning investigations without authorisation, within claimants area. Claimant sends images of daybook records 29/6/22 30/7/22-1/8/22 Claimant makes a protected disclosure to respondent. 4/8/22 - 18/8/22 Claimant on sick leave - Multiple sclerosis symptoms intensified due to stress and anxiety dealing with events to date. August - October 22 Claimant and Ian Waterfield still requesting response to management requests sent to Paul Armstrong in June. Paul Armstrong on long term sick leave due to broken finger. Emma Coxon makes decision that explanation is satisfactory. 21/09/2022 Meeting with Daniel Scully regarding the protected disclosure and legal issues around the disclosure. Oct-22 Mid-term PADR appraisal and further request for reasonable adjustments. Oct-22 Witness list provided to Emma Coxon for use in the grievance investigations. Ongoing discussions regarding outstanding management requests and actions. 07/10/2022 Official complaint made to respondent regarding Emma Coxon's behaviour toward claimant. Complaint on the basis that claimant is being treated differently throughout the grievance process, reasonable adjustments not implemented and lack of policy adherence. Nov-22 Claimant attends grievance meeting scheduled by Glynn Parry regarding Paul Armstrongs grievance against claimant. Full account provided, questions answered, evidence offered. Further allegations against claimant of shouting at Paul Armstrong. Dec-22 Emma Coxon re sifts and re scores claimants recruitment applications. Nov 22 - Feb 23 Updates requested regularly regarding suspension of Paul Armstrong re protected disclosure, Protected disclosure outcome, grievance reports. Regular discussion with Ian Waterfield regarding ill health issues and impact of work. 13/02/2023 Grievance investigation report into Paul Armstrongs grievance dated 5/7/22 received by respondent. Feb-March 23 Await decision from DM Daniel Scully regarding grievance outcome. 29/03/2023 Meeting with Daniel Scully regarding grievance outcome. 31/03/2023 Decision outcome letter received - claimant goes on sick leave. Claimant requests explanation around decision made 31/3/23-29/9/23 Claimant on sick leave 31/3/23 - 29/9/23 (last day of service due to resignation) 17/04/2023 Claimant requests update around her grievance submitted on the 7/7/22 - still not in progress 18/04/2023 Claimant requests meeting with CEO to discuss a way forward in returning to work around the way that HR had dealt with the grievances, Daniels decision, ongoing stress and ill health. Lays out clear reasoning as to why claimant feels unsafe at work and unable to carry out her role without finding a way forward. 28/04/2023 Claimant seeks further update around grievance progression. Emma Coxon replies, stating PSU have no capacity and she wishes to allocate the investigation to one of her staff. Claimant disputes this as inappropriate. Requests independent investigator. 04/05/2023 Claimant meets with Elysia Mcaffrey 11/05/2023 Emma Coxon allocates Gary Ward (External) to investigate grievance submitted 7/7/2022. Emma has previously worked with Gary - claimant has no further alternatives. 12/05/2023 Claimant agrees to attend consultation meeting regarding TOM programme. Programme looks to reduce SIO roles from 6 to 4. Claimant attends meetings whilst on sick leave. 18/05/2023 Meeting with Investigation manager Gary Ward 18/05/2023 Claimant asks ACAS for assistance around treatment 31/05/2023 End of year bonus not paid. No notification or reasoning received as to award entitlement. Not aware of PADR box marking – claimant requests clarification 07/06/2023 Claimant notified by 'grapevine' that Paul Armstrong was found to have 'no case to answer' around the PD investigation, due to lack of HR record keeping and had submitted resignation for a promotion to another government department. 9-19/6/23 PADR Box marking chain Excess hours worked in addition to TOIL/Flexi already accrued. 09/07/2023 Claimant requests update regarding grievance investigation. Follow up meeting arranged. 14/07/2023 Meeting with Gary Ward investigation manager. 14/07/2023 Notified by Gary Ward that he has been informed that the Decision maker in the grievance will be Elysia Mcaffrey. Claimant informs respondent/s that this is felt inappropriate as claimant had already had lengthy discussions around the issues and in addition Elysia Mcaffrey was Emma Coxons line manager, whom claimant had complained about. 17/18/7/2023 Claimant informed by colleague Andrew Davies that the respondent is refusing to investigate a different complaint made about Emma Coxon. 18/07/2023 Letter of resignation submitted. Letter details reasons for resignation. 27/07/2023 Email regarding 240 hours excess to be paid and outstanding annual leave. Respondent declines to pay excess hours worked. 04/08/2023 Chase outstanding excess hours request. 09/08/2023 Respondent agrees to pay 37 out of 207 hours (adjusted) owed after appeal process. 24/08/2023 Claimant requests grievance investigation update 04/09/2023 Respondent receives grievance investigation report 08/09/2023 Informed by Elysia Mcaffrey (DM) that Gary Ward finds no points upheld. 13/09/2023 Claimant collates representations and areas of failure against report and submits to respondent 15/09/2023 Elysia Mcaffrey finds no case to answer outcome. Claimant appeals decision. Requests Home Office appeal manager due to process followed. Allocated Michelle CEO SIA 25/09/2023 Claimant still chasing response to end of year bonus reasoning and process followed. Claimant receives email evidence from respondent giving rise to further allegation against Ian Waterfield. 26/09/2023 Claimant raises grievance against Ian Waterfield for PADR process discrimination and failures April 22- March 2023. (Claimant making enquiries from May 2023 – ongoing sequence) 20/11/2023 Appeal manager provides decision around grievance submitted 7/7/22 - grounds partially upheld. No further route of appeal. Appeal manager advises policy review and apology to claimant for excessive delays. 24/11/2023 Investigation manager Phillip Cain GLAA provides report upholding discrimination by way of disability against Ian Waterfield. Recommends policy review. 24/11/2023 Claimant requests respondent make decision regarding bonus payment for year ending March 2023 (Ongoing request from May 2023) 16/01/2024 Claimant receives outcome of decision - respondent agrees to pay end of year bonus. Law Amendment
Law
[4]In the case of Selkent Bus Company Limited v Moore [1996] ICR 836 the Employment Appeal Tribunal (“EAT”) set out the test to be applied by a Tribunal in deciding whether to exercise its discretion to grant an amendment. It said the Tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. The EAT in Selkent also set out a list of factors which are certainly relevant, which are usually referred to as the “Selkent factors”. In brief they are:(1) The nature of the amendment i.e. whether the amendment sought is one of the minor matters or is a substantive alteration pleading a new cause of action;(2) The applicability of time limits. If a new complaint of cause of action is proposed to be added by way of amendment it is essential for the Tribunal to consider whether that complaint is out of time and if so whether the time limit should be extended; and(3) The timing and manner of the application. An application should not be refused solely because there has been a delay in making it. There are no time limits laid down in the rules for making amendments, but delay is a discretionary factor. It is relevant to consider why the application was not made earlier and why it is now being made (for example the discovery of new facts or new information).[5]In the case of Vaughan v Modality Partnership UKEAT/0147/20/BA the EAT reminded parties and Tribunals that the core test in considering applications to amend is the balance of injustice and hardship in allowing or refusing the application. The exercise starts with the parties making submissions on the specific practical consequences of allowing or refusing the amendment. That balancing exercise is fundamental. The Selkent factors should not be treated as if they are a list to be checked off.[6]Although Selkent says it is essential for the Tribunal to consider whether a complaint is made out of time and if so whether the time limit should be extended, in Galilee v Commission of Police of the Metropolis [2018] ICR 634 the EAT held it is not always necessary to determine time points as part of an amendment application. A Tribunal can decide to allow an amendment subject to limitation points being determined at a later stage in the proceedings, usually at the final hearing. That might be the most appropriate route in cases where there is alleged to be a continuing act and the Tribunal needs to make findings of fact on this issue.[7]The assessment of the balance of injustice and hardship may include an examination of the merits but there is no point in allowing an amendment if it will subsequently be struck out. That extends to cases not only which are utterly hopeless but also to ones where the proposed claim has no reasonable prospect of success. The authority for that is Gillett v Bridge 86 Limited [2017] 6 WL UK 46. Reasonably practicable[8]Section 48(3)(a) of the Employment Rights Act 1996 provides: “(3) An [employment tribunal] shall not consider a complaint under this section unless it is presented— (a) before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them, or[9]A Tribunal may only extend time for presenting a claim where it is satisfied of the following: “It was “not reasonably practicable” for the complaint to be presented in time. The claim was nevertheless presented “within such further period as the Tribunal considers reasonable” Just and equitable extension[10]Section 123(1)(b) of the 2010 Equality Act permits the Tribunal to grant an extension of time for such other period as the employment tribunal thinks just and equitable. Section 140B of the Equality Act 2010 serves to extend the time limit under section 123 to facilitate conciliation before institution of proceedings.[11]The Tribunal has reminded itself of the developed case-law in relation to what is now section 123 of the Equality Act 2010. That has included a group of well-known judgments setting out the underlying principles to be applied in this area, together with recent occasions on which those principles have been applied and approved by later courts and tribunals. Particular attention has been paid to the historical line of cases emerging in the wake of the case of Hutchinson v. Westwood Television [1977] ICR 279, the comments in Robinson v. The Post Office [2000] IRLR 804, the detailed consideration of the Employment Appeal Tribunal in Virdi v. Commissioner of Police of the Metropolis et al [2007] IRLR 24, and, in particular, the observations of Elias J. in that case, as well as the decision of the same body in Chikwe v. Mouchel Group plc [2012] All ER (D) 1.[12]The Tribunal also notes the guidance offered by the Court of Appeal in the case of Apelogun-Gabriels v. London Borough of Lambeth & Anr [2002] ICR 713 at 719 D that the pursuit by a claimant of an internal grievance or appeal procedure will not normally constitute sufficient ground for delaying the presentation of a claim: and observations made by Mummery LJ in the case of Ma v. Merck Sharp and Dohme [2008] All ER (D) 158.[13]The Tribunal noted in particular that it has been held that 'the time limits are exercised strictly in employment … cases', and that there is no presumption that a tribunal should exercise its discretion to extend time on the 'just and equitable' ground unless it can justify failure to exercise the discretion; as the onus is always on the claimant to convince the tribunal that it is just and equitable to extend time, 'the exercise of discretion is the exception rather than the rule' (Robertson v. Bexley Community Centre [2003] IRLR 434, at para 25, per Auld LJ); Department of Constitutional Affairs v. Jones [2008] IRLR 128, at paras 14–15, per Pill LJ) but LJ Sedley in Chief Constable of Lincolnshire Police v. Caston said in relation to what LJ Auld said “there is no principle of law which dictates how generously or sparingly the power to enlarge time is to be exercised.” See also the comments of Judge Tayler in Jones v. Secretary of State for Health 2024/EAT/2[14]The Tribunal’s discretion is as wide as that of the civil courts under section 33 of the Limitation Act 1980; British Coal Corporation v. Keeble [1997] IRLR 336; DPP v. Marshall [1998] IRLR 494. Section 33 of the Limitation Act 1980 requires courts to consider factors relevant to the prejudice that each party would suffer if an extension was refused, including: the length and reasons for the delay; the extent to which the cogency of the evidence is likely to be affected by the delay; the extent to which the party sued had co-operated with any requests for information; the promptness with which the claimant acted once he knew of the possibility of taking action; and the steps taken by the claimant to obtain appropriate professional advice once they knew of the possibility of taking action. Although these are relevant factors to be considered, there is no legal obligation on the Tribunal to go through the list, providing that no significant factor is left out; London Borough of Southwark v. Afolabi [2003] IRLR 220.[15]The Tribunal has additionally taken note of the fact that what is now the modern section 123 provision contains some linguistic differences from its predecessors – which were to be found in various earlier statutes and regulations – concerning the presentation of claims alleging discrimination in the employment field. However, the case law which has developed in relation to what is now described as “the just and equitable power” has been consistent and remains valid. The Tribunal has therefore taken those authorities directly into account in its consideration.[16]It is also a generally received starting proposition that it is for the claimant who has presented his or her claims out of time to establish to the satisfaction of the Tribunal that the “just and equitable” discretion should be exercised in the particular case. DISCUSSION and DECISION[17]In an email of 7 November 23, the claimant said: - I suffer from a severe, critical illness that has significantly impacted my cognitive and neurological abilities. - I have been overwhelmed and incapacitated by the events and treatment that led to this claim. The Tribunal took this into account when addressing the submissions.[18]For the purposes of this hearing, the claimant tabulated her reasonable adjustment claim at pages 124-125. Box RA1 shows the claim is made for the period from July 2022 until the internal procedures were concluded in November 2023. Box RA2 shows the claim is made for period October 2022 to July 2023 until the internal procedures were concluded in January 2024. She agreed that that box RA 3 added nothing to box RA2 and that it should be deleted. She tabulated her whistleblowing claim at pages 125-126 as being raised in August 2022 and not being concluded until 2024.[19]The Tribunal took the claimant through her resignation letter (which was not available to the Tribunal) which was based on her grievance (which was also not available to the Tribunal) along with the terms of her ET1 and paper apart [4 and16] which she said reflected the narrative in her grievance and resignation and contained her two additional claims.[20]The ET1 was itself a detailed document. The rubric at section 8.2 of the ET1 says "Please set out the background and details of your claim in the space below. The details of your claim should include the date(s) when the event(s) you are complaining about happened. Please use the blank sheet at the end of the form if needed." The claimant then proceeded to attach 12 pages of Particulars of Claim. The claimant's claim was lodged in July 2023. The Tribunal concluded that there was no mention at all of whistleblowing, alleged protected disclosures or reasonable adjustments within the ET1.[21]The Tribunal finds that these are new claims and addressed them as such. The claimant applied for permission to amend on 2 October 2023, shortly after the respondent provided Grounds of Resistance to the claim. set out in the ET1. The claimant’s own timeline shows that on 13 September 2023 and thereafter she was addressing issues with her employer and could have addressed the two claims missing from her ET1. It is not sufficient for her to say that she was awaiting the outcome of the internal grievance investigation particularly since she ceased to be employed on 29 September 2023.[22]The claimant’s submission on whistleblowing is now: Whistleblowing detriment under section 47B of the Employment Rights Act 1996 and Victimisation under section 27 of the Equality Act 2010. In August 2022, Mrs Baines divulged sensitive information to her employer regarding an employee who was allegedly involved in potentially illegal activities, that could have compromised government security and misused sensitive systems for personal gain. The employee ran two private investigation firms that offered services like tracking and surveillance, which reasonably required access to police intelligence systems. Mrs Baines made the disclosure following due process, supported by evidence, and in the public interest. The matter warranted immediate action and should also have been referred to IOPC. There were risks to stakeholders, departmental employees, the organization, and the general public. Mrs Baines was made aware of this information when one of her staff alerted her to certain statements made by the employee and the alleged threats he posed against her. Mrs. Baines was profoundly concerned for her safety and that of her family. It came to light that the employee had not declared his directorship or involvement in the businesses on his conflict-of-interest declaration, as required by his contract. Mrs. Baines reported the matter to her line manager, who subsequently escalated it to HR. However, Emma Coxon, the HR personnel in charge, humiliated her after the referral was made, by criticising her intentions. She frequently spoke poorly of Mrs Baines to her line manager Ian Waterfield and treated her in a demeaning and hostile manner. Consequently, Mrs Baines felt troubled about approaching HR for help, advice, or support. Despite the significant risks involved, the referral was not recorded as a protected disclosure, and the employee, the subject of the investigation, was cleared of any wrongdoing. There were concerns regarding GLAA's recordkeeping practices as statemented by the Chief Operating Officer Daniel Scully. Mrs Baines found it alarming that someone involved in criminal investigations would be allowed to run two private investigation firms concurrently. The lack of adequate investigation may have led colleagues to believe that anything was permissible, which was not appropriate for a law enforcement department. In October 2022, Mrs Baines lodged a complaint against Emma Coxon, but her line manager advised her not to pursue it, citing the hostile work environment that she was already experiencing. Emma remained non-committal on Mrs Baines grievance and refused to progress reasonable questions that she had raised. Emma Coxon also inappropriately got involved in Mrs Baines grievance and acted contrary to her interests. Emma further victimized her by treating her dismissively and implying that she was of low intellect, did not understand the grievance resolution policy and did not merit the same rights enjoyed by other employees. Emma's conduct has been detrimental to Mrs Baines well-being and has made it challenging to engage with HR. It has also proven problematic in terms of addressing complaints of discrimination or requesting a prompt, fair and impartial grievance investigation.[23]The whistleblowing upon which the claimant relies took place in July, August and October 2022 and any claim for detriment at those times would have been out of time at the date of presentation of the original ET1.[24]The claimant says that she intended to raise whistleblowing within the ET1. She also said that she did not want to disclose sensitive information but serious allegations such as putting government security at risk or the claimant allegedly being scared for the safety of her family would be important to make at the earliest juncture and cannot be said to be hidden in the ET1. She herself said that her disclosures warranted immediate action. It is also a fundamentally different cause of action with different applicable legal principles[25]Within paragraphs 51-55 of her case management summary EJ McLaren has recorded her decision as to what was in the ET1 and what the claimant told her about the circumstances of presenting the ET1. There is no reason that the claimant could not have included any detail regarding a whistleblowing claim within her actual Particulars of Claim, as she did for numerous other matters. It was reasonably practicable to do so.[26]If it was not reasonably practicable for the claim to be presented in time, the question for the Tribunal is was the claim presented within such further period as the Tribunal considers reasonable. Having regard to the timeline in this case, the tribunal concludes that it was not.[27]Her submission on reasonable adjustments now is: Failure to make reasonable adjustments under Sections 20 and 21 of the Equality Act 2010. Mrs. Baines has provided evidence of the respondent's failure to consider and provide reasonable adjustments to manage her disability under the Equality Act 2010. The failure to comply with sections 20 and 21 of the Equality Act 2010 manifested in various ways, including neglecting the request for an immediate and prioritized investigation of grievances due to disability (PPMS) impact; this failure occurred in July 2022 and recurred in August 22, October 22, and March 23. The agreed OH referral made in November 22 was not progressed, and the support, as well as the assessment of decisions that caused harm, such as grievance delays, resource issues, and excessive working hours kept, were absent. Furthermore, there was a disregard of disability and reasonable adjustment support requests and mitigation strategies in March and April 2023 that addressed physical spasms or facial expressions; this disregard led to a failure to provide necessary support or measures to adjust for disability symptoms perceived as offensive, thus increasing the risk of termination. Additionally, there was a lack of fair and relevant provisions for disabilities and the symptoms caused on the PDR process, affecting box markings/outcomes.[28]The reasonable adjustments complaint appears to be about a decision in 7 October 2022. The claimant says she was made aware of relevant facts in January 2024 but she is pointing to a grievance outcome. The particulars identified by EJ McLaren as those which the claimant seeks permission to add by amendment found within her document of 7 November 2023 explicitly say that alleged failures happened in July 2022, August 2022, October 2022, November 2022, March 2023 and April 2023. All of those dates considerably pre-date the submission of the ET1. There was nothing preventing the claimant from including these within her ET1 had she wanted to. Looking at page 2 of the Particulars of Claim, for example, the claimant notes that she has raised a grievance and sets out various issues contained within that grievance. If the claimant was able to raise those matters within her ET1 there is no reason why other matters could not similarly have been addressed. The claimant set out her specific claims at the time and these two claims were not included. The reasonable adjustments claim is not merely a relabelling exercise from the monetary claim to one of disability discrimination, it is a fundamentally different cause of action with different applicable legal principles.[29]The communication of a grievance outcome after she ceased employment is not the start of the time limit for an act or omission in 2022. What occurred was an act with continuing consequences with the time limit running from that date, not a continuing detriment constituting a continuing act which means the time does not run while it is ongoing. Balance of prejudice[30]In relation to prejudice generally, the respondent will have the prejudice of having to defend a claim which is not specified in any detail and which is well out of time. Because it is it is a fundamentally different cause of action with different applicable legal principles, additional witness evidence will be required along with consideration of those legal principles.[31]There is a final hearing listed for 21-29 July 2025. The addition of a reasonable adjustments claim in the form it is made, may cause that hearing to overrun or be cancelled, to be relisted later. In either event, the next hearing would be even further away and this takes no account of any separate hearing on remedy. The claimant accepted that this turn of events would be to her prejudice.[32]On the basis of the guidance set out earlier and weighing all the relevant factors, the Tribunal considers that it is not proportionate to resolve that issue when it is out of time, accordingly it is not just and equitable to extend the time for lodging the claim and the claim of reasonable adjustments is struck out. 28. Turning to the remaining items on the agenda for this hearing, the Tribunal decided it was not necessary to add to the case management already carried out. Accordingly, b) any changes to the list of issues since today's hearing; No. c) whether any guidance with regard to the number of or length of witness statements is required; No d) if the length of the final hearing remains appropriate; It should remain as listed. e) the listing of any judicial mediation/ alternative dispute resolution; No and f) any outstanding matters between the parties. None.
Introduction
[1]This is our reserved judgment following this trial in July of this year. I apologise for the delay in producing this judgment. The case is complicated, but there was additional delay which has been explained to the parties. This decision contains rare panel divergence on one issue, which is whether or not time should be extended for the Tribunal to have jurisdiction over a claim which we would otherwise conclude is well founded.[2]Although we all agreed that one aspect of the claimant’s disability related harassment would be well founded if brought in time, only Tribunal Member Marsden considered we should exercise discretion to extend time on the basis it is just and equitable to do so. At the relevant time in our conclusions below, he is referred to as “the minority”. Employment Judge Fredericks-Bowyer and Tribunal Member Dixon are referred to as “the majority”. The minority thought that the claimant should succeed in that part of her disability harassment claim. The majority did not. This means that part of the claim was not successful on the basis of two views to one at the end of panel deliberations. Before deciding to end deliberations, the panel chaired by Judge Fredericks-Bowyer was content that no further period of deliberations would change anyone’s mind. It was not therefore in accordance with the overriding objective to list further deliberations time to have that discussion.[3]Apart from where identified in the way described above, all findings of facts and conclusions drawn are unanimous.
The issues
[4]The issues were agreed between the parties and were as is set out below:- 4.1. Jurisdiction – time limits 4.1.1. Were any or all of the claimant’s discrimination or monetary claims brought outside of the primary time limit? Based on the dates of the ACAS Certificate and the date of presentation of the ET1, the earliest date that the claimant can rely on for any discrete claim is 1 March 2023. 2 of 40 4.1.2. If so, should time be extended under: 4.1.2.1. S123(1)(b) Equality Act 2010 for any discrimination claim? 4.1.2.2. S23(4) Employment Rights Act 1996 for an unlawful deductions for the unlawful deduction from wages claim? 4.2. Unfair dismissal 4.2.1. What was the most recent act or omission on the part of the respondent which the claimant says caused, or triggered, their resignation? The claimant relies upon the following specific acts:- 4.2.1.1. Ignoring what the claimant says is fraud that she raised in June 2022; 4.2.1.2. Failing to act promptly on her grievance raised on 7 July 2022; 4.2.1.3. Failing to recognise and/or refuse to deal with the formal complaint raised against Emma Coxon/HR in October 2022; and 4.2.1.4. Refusing to investigate complaints and grievances against Emma Coxon by other staff; and 4.2.1.5. Appointing Elysia McCaffrey as the decision maker for the claimant’s grievance on 14 July 2023. 4.2.2. Did the claimant affirm the contract after that act? 4.2.3. If not, was that act or omission by itself a repudiatory breach of contract? 4.2.4. If not, was it nevertheless part of a course of conduct comprising several acts or omissions which, viewed cumulatively, amounted to a repudiatory breach of the implied term of mutual trust and confidence? 4.2.5. Did the claimant resign in response (or partly in response) to that breach? 4.3. Disability 4.3.1. The claimant was disabled by reason of multiple sclerosis at the relevant time and it had that knowledge. 4.4. Direct disability discrimination 4.4.1. Did the respondent treat the claimant less favourably by: 4.4.1.1. In relation to a hypothetical comparator, Daniel Scully failing to consider her disability, intimidation and denial around the claimant “rolling eyes” at Paul Armstrong. 3 of 40 4.4.1.2. Daniel Scully failing to implement the same warning/reprimand regarding the “rolling eyes” as detailed in Glyn Parry’s report in comparison to Paul Armstrong. 4.4.1.3. Emma Coxon failing to treat the claimant in the same manner as Paul Armstrong by – 4.4.1.3.1. His grievance being dealt with immediately, and 4.4.1.3.2. Him not being challenged about outstanding management requests from the claimant in respect of mileage. 4.4.1.4. Emma Coxon forwarding the claimant emails from Paul Armstrong containing aggressive, bullying and intimidating content; 4.4.1.5. Emma Coxon allowing Paul Armstrong to continue to send messages that were disrespectful and discriminatory around the use of the claimant’s name. 4.4.1.6. Emma Coxon disregarding the claimant’s management authority and responsibility around assurance and management matters by deciding to ignore disciplinary actions around Paul Armstrong. [4.4.1.4-4.4.1.6 involve hypothetical comparators] 4.4.2. If so, was such treatment because of disability? 4.5. Disability related harassment 4.5.1. Did the respondent engage in unwanted conduct by – 4.5.1.1. Paul Armstrong offending and upsetting the claimant in May 2022 around the use of her stick and making her uncomfortable and ashamed for using it; 4.5.1.2. Paul Armstrong allegedly threatening to ‘do her legs’ in June 2022; or 4.5.1.3. Emma Coxon making spiteful and malicious comments and 4.5.2. If so, was such conduct related to disability? 4.5.3. If so, did such conduct have the purpose or effect of violating the 4.6. Direct age discrimination 4.6.1. Did the respondent treat the claimant less favourably by: 4 of 40 4.6.1.1. In relation to a hypothetical comparator, Daniel Scully failing to consider her disability, intimidation and denial around the claimant “rolling eyes” at Paul Armstrong; 4.6.1.2. Daniel Scully failing to implement the same warning/reprimand regarding the “rolling of the eyes” as detailed in the Glyn Parry report in comparison to Paul Armstrong; 4.6.1.3. Emma Coxon failing to treat the claimant in the same manner as Paul Armstrong by – 4.6.1.3.1. His grievance being dealt with immediately; and 4.6.1.3.2. Him not being challenged about outstanding management requests from the claimant in respect of mileage; or 4.6.1.4. Emma Coxon making decisions in favour of Paul Armstrong’s treatment. 4.6.2. If so, was such treatment because of age? 4.7. Age related harassment – 4.7.1. Did the respondent engage in unwanted conduct by – 4.7.1.1. Paul Armstrong treating the claimant disrespectfully in comparison to male SIOs by way of failing to use her name; 4.7.1.2. Paul Armstrong treating the claimant disrespectfully around reasonable management requests and intimidating her to subdue her; 4.7.1.3. Paul Armstrong undermining and intimidating the claimant regarding her management actions of other staff; or 4.7.1.4. Emma Coxon making spiteful and malicious comments and 4.7.2. If so, is such conduct related to age? 4.7.3. If so, did such conduct have the purpose or effect of violating the 4.8. Direct sex discrimination – 4.8.1. Did the respondent treat the claimant less favourably by – 4.8.1.1. In relation to a hypothetical comparator, Daniel Scully failing to consider her disability, intimidation and denial around the claimant “rolling eyes” at Paul Armstrong; 5 of 40 4.8.1.2. Daniel Scully failing to implement the same warning/reprimand regarding the “rolling of the eyes” as detailed in the Glyn Parry report in comparison to Paul Armstrong; 4.8.1.3. Emma Coxon failing to treat the claimant in the same manner as Paul Armstrong; 4.8.1.4. Emma Coxon forwarding the claimant emails from Paul Armstrong containing aggressive, bullying and intimidating content; 4.8.1.5. Emma Coxon allowing Paul Armstrong to continue to send messages that were disrespectful and discriminatory around the use of the claimant’s name. 4.8.1.6. Emma Coxon disregarding the claimant’s management authority and responsibility around assurance and management matters by deciding to ignore disciplinary actions around Paul Armstrong. 4.8.1.7. Emma Coxon making decisions in favour of Paul Armstrong’s treatment. 4.8.1.8. Emma Coxon making spiteful and malicious comments and 4.8.2. If so, was such treatment because of sex? 4.9. Sex related harassment 4.9.1. Did the respondent engage in unwanted conduct by – 4.9.1.1. Paul Armstrong treating the claimant disrespectfully in comparison to male SIOs by way of failing to use her name; 4.9.1.2. Paul Armstrong treating the claimant disrespectfully around reasonable management requests and intimidating her to subdue her; 4.9.1.3. Paul Armstrong undermining and intimidating the claimant regarding her management actions of other staff; or 4.9.1.4. Emma Coxon making spiteful and malicious comments and 4.9.2. If so, is such conduct related to sex? 4.9.3. If so, did such conduct have the purpose or effect of violating the 4.10. Unlawful deduction from wages 6 of 40 4.10.1. Did the respondent make an unlawful deduction from the claimant’s wages?
The hearing
[5]The claimant represented herself at the hearing and gave evidence to support her claim. She also drew on witness statements from:- 5.1. Andrew Davies (former Senior Investigating Officer at the respondent); 5.2. Adrian Finbow (Senior Investigating Officer at the respondent); and 5.3. Ian Waterfield (former Head of Enforcement at the respondent).[6]None of those additional witnesses were present at the hearing. The respondent wished to challenge Mr Waterfield’s evidence but was prevented from doing so by his decision to absent himself from attending on health grounds. We take that into account when assessing Mr Waterfield’s evidence.[7]The respondent was represented by Mr Baines, Solicitor, and drew upon evidence from the following witnesses:- 7.1. Emma Coxon (former Head of People at the respondent); 7.2. Richard Murray (Senior Investigating Officer, Professional Standards Unit, Home Office); 7.3. Elysia McCaffrey (Chief Executive of the respondent); 7.4. Daniel Scully (former Chief Operating Officer at the respondent); and 7.5. Michael Waters (Senior Enforcement Investigator at the respondent).[8]The respondent wished to challenge Mr Waters’ evidence but was prevented from doing so by his decision to absent himself from attending because he did not wish to take part. Neither party sought an order to compel attendance. We take Mr Waters’ absence into account when assessing Mr Waters’ evidence, although we note that his evidence in chief is extremely narrow in scope and merely refers to contemporaneous bundle documents which we have seen.[9]There was an agreed bundle of documents which ran to 2322 pages. Page references in this judgment are references to pages of that bundle. There was also a supplementary bundle of documents which ran to 79 pages. Page references in this judgment which are expressed as “SUPP[xx]” are references to that supplementary bundle.[10]We also had documents relating to an application to strike out the response and emails where the claimant was chasing for updates and, as she considered it, compliance with directions. Where relevant, they are described in the “strike out” section below. The claimant produced a 14 page bundle of “altered documents”. If relevant, they are identified where mentioned below as “ALTERED[xx]”. 7 of 40 The parties[11]The claimant currently works as Head of Professional Standards Unit at the Building Safety Regulator. At the time to which the claim relates, she was a Senior Investigating Officer at the respondent. Before that, the claimant worked at the National Crime Agency. She is an experienced professional investigator.[12]The claimant works whilst managing her Progressive Primary Multiple Sclerosis. The claimant considers that the events causing the claim and subsequent litigation have caused her condition to deteriorate more quickly than it otherwise would have done. She referenced her view that the respondent’s actions and these proceedings have shortened her life several times.[13]Given that view, it is understandable that the claimant presented as very upset at the start of the hearing, and at times during the course of hearing the evidence. We made accommodations, as we always do, with frequent breaks and stopping when the claimant wished to, to ensure the hearing could proceed efficiently but in a way which was fair and allowed all to take part. During evidence, the claimant expressed that she had a migraine and was struggling to see or focus. In response to a suggestion of a pause, she said that the symptoms may remain for days. The claimant wished to continue, presented no application to adjourn the hearing on medical grounds, and was (in our view) ably continuing to represent herself without undue difficulty.[14]The respondent is a non-departmental public body whose predominant purpose is to regulate businesses who provide workers to the fresh produce supply chain and horticulture industry. It is sponsored by the Home Office and works alongside other law enforcement bodies to protect vulnerable and exploited workers and disrupt serious and organised crime.[15]When the claimant issued the claim, she also named Ms Coxon as a second respondent. That claim was dismissed by agreement at a hearing on 2 February 2024 (page 76) but it was not clear whether a judgment dismissing that claim upon withdrawal had been issued. If it has not been issued, it will be done so separately to this document such that no claims against any respondent in the claim survive on the file. Application to strike out the response[16]There have been several preliminary determinations or directions in the proceedings prior to this final hearing. There was:- 16.1. a case management preliminary hearing before Employment Judge McLaren on 22 February 2022, which gave directions for disclosure; 16.2. a public preliminary hearing before Employment Judge Truscott KC, which refused the claimant’s application to add a whistleblowing and reasonable adjustments claims to the proceedings; 16.3. a refusal by Judge Truscott KC to reconsider his earlier decision (dated 12 August 2024); 8 of 40 16.4. a direction by Employment Judge Ord on 2 May 2025 requiring the claimant to set out documents she wished to receive by way of specific disclosure; 16.5. a case management preliminary hearing before Employment Judge S Moore to deal with the claimant’s application for specific disclosure.[17]Judge Moore’s case summary and orders were shown to us at pages 106 to 114. The Judge sets out the history of difficulties with disclosure in the case which we do not repeat here. The Judge made identified the following parameters for documents referred to which were considered disclosable by 20 June 2025: - 17.1. “communications to or from Paul Armstrong that mention the claimant in the context of the claimant’s grievance against him and in the context of any threats or discriminatory behaviour towards the claimant”; 17.2. “records in Ian Waterfield’s daybook that refer to the management of the claimant’s grievance and/or the impact of the delay in the grievance procedure on her ill-health”; 17.3. “notes by Daniel Scully from a 6/9/2022 regarding a meeting with the claimant at Apex Court 17.15-19.17”; 17.4. “any text message sent to the claimant from Daniel Scully on 6 or 7 July 2022, while she was doing a First Aid course in Ramsgate, that referenced Paul Armstrong’s behaviour towards her.”[18]The respondent did not provide the claimant with any of the documents defined and had not done so at the start of the hearing. During the discussions around the claimant’s application, Mr Bownes said that there were no search returns for any of the items ordered to be disclosed. He said there were no communications from Mr Armstrong which were not already disclosed. There were no notes from the meeting surviving from Mr Scully (although there was the claimant’s notes at pages 527 to 529). There were not discoverable text messages from Mr Scully, his phone having been handed in and wiped after he left the respondent.[19]In respect of Mr Waterfield’s day book, Mr Bownes explained that the respondent had undertaken an officially recorded search of the its archives for the day book but that it could not be found. To support that contention, Mr Bownes then disclosed email reports from three investigators at the respondent:(1) Mark Lynn,(2) Richard Shrimpton, and(3) Phillip Cain. That showed that a search had been carried out at two locations in Nottingham for the day book, and also a box had been retrieved for search. Although other day books had been secured, Mr Waterfield’s day books were missing.[20]In her application for the response to be struck out, the claimant appeared to accept that the day books and text messages from Mr Scully had been lost. She makes no accusation of any deliberate suppression of the evidence or any allegation that the respondent is seeking to mislead the evidence or the Tribunal. She says, simply, that we cannot know what evidence is lost due to the respondent’s failure to properly secure official documents. 9 of 40[21]The application was advanced with the following supporting submissions:- 21.1. The respondent had failed to comply with an order to disclose documents that an Employment Judge had considered relevant; 21.2. That failure was following a history of late compliance and a series of unanswered applications from the claimant for an unless order or for the response to be struck out due to failures to adhere to directions; 21.3. In addition to apparently losing relevant evidence, the respondent also did not request evidence from relevant witnesses until May 2025; 21.4. The loss of this relevant evidence and failure to disclose it has meant that the respondent has “ensured it is impossible to have a trial forever more and the respondent’s grounds of resistance must be struck out entirely to ensure the claimant’s human rights are not breached further”; and so 21.5. It is in accordance with the overriding objective for the response to be struck out.[22]Mr Bownes resisted the application, submitting that the respondent cannot be ordered or expected to disclose documents which are not within its control and, having done a proportionate search, none of the documents ordered to be disclosed could be discovered. He resisted the notion that no fair hearing could take place following the absence of the documents. He noted that other contemporaneous documentation exists from which findings of fact can be drawn. He also noted that of those named, only Mr Armstrong had not submitted evidence in chief for the hearing so they could be asked for their recollections. He submitted that strike out would be a disproportionate sanction, even if evidence was wrongly lost, where there is other evidence to determine the relevant issues and where there are issues in the claim to which these documents did not relate. Relevant law on strike out[23]Rule 38 Employment Tribunal Rules of Procedure 2024 gives the Tribunal the ability to strike out a claim or response for, among other things, failure to comply with directions, unreasonable conduct, or where a party can be fixed with responsibility for an inability to have a fair hearing.[24]Where the Tribunal considers striking out a claim or response for unreasonable conduct, it must be satisfied that(1) there has been a persistent and deliberate disregard of required steps, or that the conduct has made a fair trial impossible, and(2) striking out is the proportionate response (Blockbuster Entertainment Ltd v James [2006] IRLR 630 CA). Striking out is unlikely to be a proportionate response unless there is a conclusion that a fair trial is no longer possible (De Keyser Ltd v Wilson [2001] IRLR 324 EAT).[25]When assessing whether a fair trial can take place, the ability to have a fair trial within the trial window is a key consideration because if there is no further hearing listed and it is not proportionate to list one, a fair trial is not possible (Emuemukoro v Croma Vigilant (Scotland) Ltd v Anr EA-2020-000006-JOJ). 10 of 40[26]When considering the proportionality test under any ground, it is important to have in mind the overriding objective and consider whether any steps short of striking out the claim or response could remedy the defect and make a fair trial possible (Laing O’Rourke Group Services Ltd and ors v Woolf and anr EAT/0038/05). If the defect can be remedied short of striking out, and it is proportionate to do so, then striking out would not be appropriate (applying cases such as De Keyser).[27]We remind ourselves, always, that striking out of the claim or response is the most draconian of sanctions and the authorities rightly caution against taking that step unless it is truly necessary in the circumstances. Determination on strike out[28]This is not an application where we are being asked to conclude that there has been a deliberate action which has resulted in lost or misleading evidence, which was motivated by a desire to avoid evidence being in front of us. This is also not an application where the evidence sought to be relied upon which is lost is unknown in totality, such as where there has been such a drastic failure in the duty of disclosure that the evidence overall cannot be trusted (see for example Karooma-Brooker v Royal Borough of Greenwich [2024] ET 2301202/2022, decided by a panel chaired by the same Judge as this case). The claimant knew what documents she wished for in specific disclosure. There is no wider allegation of an inadequate disclosure across the piece. We do not perceive any such failure either.[29]Consequently, this is an application which seeks to take a failure to disclose four classes of documents which may assist the Tribunal and argue that the failure to disclose them means that none of the issues in the case can be heard fairly. In our view, that is an audacious request.[30]We are satisfied that, by the time this application was heard, the respondent had taken reasonable steps to search for and secure the items in question. Two of the disclosure orders, the Paul Armstrong communications and the Danial Scully text messages, are worded as a provisional disclosure. Where a disclosure order starts with the word “any”, there must be room for acknowledgement that there may in fact be no such class of documents. It is a broad wording which includes the possibility that there are no such thing. We therefore accept the respondent’s explanations that there are no Paul Armstrong communications beyond those which are in the bundle (and which the claimant does rely upon), and any Daniel Scully messages were lost when his phone was handed in when he left the respondent. The respondent cannot disclose what it does not have and which does not exist, and so there is no breach of the disclosure order in respect of these items.[31]We take a similar view in respect of the Daniel Scully meeting notes. We accept that the notes were lost. The respondent cannot disclose what it does not have after a reasonable and proportionate search. We are satisfied with the scope of the respondent’s search, and the claimant does not question the scope of the search, only the timing. In our view, there has been no failure to comply with the disclosure order here, where the document turns out to be outside of the respondent’s control. 11 of 40[32]The notes, we consider, did exist at some point and might exist somewhere unfound. This is different to the items considered above. We went on to assess the impact of not having the notes for completeness. When the application was decided, we knew that Mr Scully was giving evidence and that he could be asked about his notes and what had happened to them, as well as what was discussed in the meeting.[33]We were also conscious that the claimant might ask us to draw a negative inference from the lack of the document if she was contending things were said in that meeting which she wished to rely upon. In this way, the lack of the document could lead to the claimant’s advantage. In those circumstances, we considered that we could fairly make findings of fact about the meeting where relevant. Where that is the case, there plainly can be a fair hearing on the relevant issues in the case. Where the document does not touch on issues in the case (such as all of them not involving Mr Scully), then it would be grossly disproportionate to strike out the whole response in respect of this meeting note.[34]Finally, we considered Mr Waterfield’s missing day book. We were satisfied that the item could not be found after a reasonable and proportionate search. We accept the claimant’s concerns that that is an official document containing investigation notes. The respondent suggested that it was not responsible for them being missing, but that is not an issue about which we are concerned. The claimant wished to rely on the entries she said was there because they would contain her comments to Mr Waterfield about Mr Armstrong’s treatment of her, as well as the impact of the long grievance process.[35]In our view, we did not need to see that evidence for a fair determination of the issues. We could see that Mr Armstrong was not being called to give evidence. Therefore, when the claimant gives live evidence about what Mr Armstrong said, that is persuasive in the circumstances where the documents also show she complained about his conduct. The claimant’s claim was not weakened by the absence of the day book. Similarly, the claimant herself was the best person to give evidence about the impact of the grievance delays on her. The respondent acknowledged the delays and the undesirability of them, and so again we do not consider the claimant’s case was weakened by their absence. Where, even if the respondent was held responsible for the absence of evidence, we consider there can still be a fair hearing of the issue in question, then it should not be struck out.[36]In conclusion, we could not identify any breach of the directions given. The pre-amble to Judge Moore’s order makes it clear that a party can only disclose what is within its control. The respondent cannot disclose what it does not control and, notwithstanding the wording of a specific order, the Tribunal cannot actually order of production of a document which the ordered party does not have in its possession or control. None of the respondent’s conduct since the specific disclosure order was made struck us as unreasonable. It undertook a reasonable and proportionate search. In our view, none of the items missing were so central to any of the issues that the ability to have a fair hearing was undermined. In all of those circumstances, this was a strike out application which was nowhere near being made out. It was refused for all of those reasons. 12 of 40[37]It appeared to us that the application was less about the ability to have a fair hearing and more about the claimant’s lack of confidence in the evidence and the Tribunal process. That is not uncommon, but the Tribunal applies the law of the jurisdiction to applications and not the feelings of the parties. In response to our refusal to strike out the response, the claimant expressed disbelief and confusion. She wished to postpone the rest of the hearing in order to appeal the refusal. It was explained to her that that was not a wish which would be granted and that the hearing would proceed in its window whether or not she later chose to appeal the decision.
Findings of fact
[38]The facts as we find them on the balance of probabilities are as set out below. When assessing facts on the balance of probabilities, we are deciding what from the range of options is more likely than not to have happened. We found each of these facts on a unanimous basis. Early discriminatory experiences at the respondent[39]The claimant began working at the respondent in January 2020. Her role was to lead and manage a team of criminal and civil investigators in modern slavery and labour abuse investigations. Prior to working at the respondent, the claimant worked at the National Crime Agency. When she came to work at the respondent, the claimant had been diagnosed with progressive primary multiple sclerosis. This is why she wished to take the primarily remote role on offer at the respondent.[40]The claimant encountered at least one discriminatory attitude upon joining the respondent. The claimant says, and we accept, that one of her direct reports (a former police officer) did not like being managed by a younger female. Mr Waterfield’s statement supports the claimant’s account, and we understand the officer was dismissed. In our view, the culture at the respondent at this time was more likely than not to have been pollinated with ‘old fashioned’ and discriminatory views about sex and age. In their evidence, Mr Scully and Ms McCaffrey agreed that their had been cultural challenges at the respondent along these lines in the recent past just around the time of their joining (both in 2021). Issues with Paul Armstrong[41]The claimant gave an account of problems she resolved or had with one of her direct reports, Paul Armstrong. We are satisfied there were problems with their relationship. Mr Waterfield’s written evidence confirmed the same point. The bundle documents show that there were grievances brought by the claimant and Mr Armstrong against each other.[42]In May 2022, the claimant learned of a complaint made by an officer of another organisation about Mr Armstrong. The claimant was unable to confirm what had happened, but did understand that Mr Armstrong had been rude to the other officer and words had been exchanged. This understanding led the claimant (appropriately, in our view) to remind Mr Armstrong of the respondent’s values when his appraisal came round. We accept the claimant’s evidence that this was one of a number of concerns she had about Mr Armstrong which justified her raising the issue on Mr 13 of 40 Armstrong’s record. The proposed wording, which seems to have escalated tension between the claimant and Mr Armstrong, was (page 256):- “I would encourage Paul to demonstrate the GLAA values consistently. I have had to speak to Paul informally around a conversation with the Intel manager whereby it was felt both parties were frustrated, and Paul was, allegedly, belligerent (This was the specific word used) to the intelligence manager, which comes across as rude. It is difficult as a manager to resolve this as I was not present during the conversation but I understand that frustrations occur. Additionally, there seems to be an ongoing issue with another member of SY2, which I hope will not affect working relationships. These are informal issues and do not detract from the good work that has been carried out over the year, or the achievement of objectives or ‘good’ box marking.”[43]Mr Armstrong also had work problems with another officer, and we accept the claimant’s uncontradicted evidence about one of those. Mr Armstrong accused the other officer of being dangerous and unsafe. He also told the claimant that the other officer was illegally wearing a police lanyard and was illegally carrying a baton. Mr Armstrong considered these were disciplinary offences. The claimant could not confirm the lanyard issue. She learned that the officer had been issued the baton by mistake by Hampshire Police. The officer had previously carried a baton in another role so did not think it was unusual. The claimant corrected the position but did not consider disciplinary action was appropriate. Mr Armstrong disagreed.[44]The claimant says that Mr Armstrong harboured ill will following the exchanges and particularly following her entry on to his PADR about respondent values. We accept that evidence. It is not contradicted and the facts go on to show antagonism directed by Mr Armstrong towards the claimant. In our view, the claimant also became mistrustful of Mr Armstrong. This was triggered by the claimant’s concern about Mr Armstrong’s claiming of mileage expenses for journeys that she did consider he had authorisation to make. The claimant says, and we accept, that she queried Mr Armstrong’s working practices in June and July 2022, including a concern that he was claiming to be working when he was not working. She says, and we accept, that he did not answer them when she asked. This is supported by the uncontradicted statement of Mr Waterfield, and is further discussed at length (albeit after the fact) in the bundle documents concerning the claimant’s management of Mr Armstrong.[45]The claimant also discovered that Mr Armstrong had two outside business interests which were investigatory in nature. She told Mr Waterfield about it, considering it misconduct. Mr Waterfield told Ms Coxon. In a statement submitted at supplementary page 8, Mr Waterfield said that Ms Coxon was critical of the claimant for raising the issue, suggesting she should not have done so when Mr Armstrong had just raised a grievance against the claimant. The claimant’s harassment claim about ‘malicious and spiteful comments’ is centred around this issue based on what she was told by Mr Waterfield. Ms Coxon denies making malicious or spiteful comments. She says she was surprised that the claimant had done her own private digging about Mr Armstrong’s business interests, but that she was not malicious or critical about the claimant to Mr Waterfield. We accept her evidence, it being the only direct evidence on the issue. We consider it likely she did express the surprise she did because it is inherently unusual behaviour for someone on the end of a grievance 14 of 40 to try to start disciplinary action against the accuser following their own private investigation.[46]Ms Coxon covered some of the issues in her evidence. We find that the claimant reported her concerns about Mr Armstrong’s work habits (pages 299 to 300), and that Ms Coxon did ask Mr Armstrong about it (pages 595 to 597) even though he was at that point signed off work with stress. Although the claimant did not label the allegations as being fraudulent behaviour at the time, these are the matters the claimant now says were ‘fraud’ for the purposes of her claim.[47]We accept Ms Coxon’s oral evidence that she wished to get answers from Mr Armstrong, but that she, too found him evasive, and that he ultimately left employment having complained that Ms Coxon was being unfair in her pursuit of him for answers. We accept this evidence because it is supported by the tone of correspondence in the bundle, because we accept Ms Coxon’s view that this could be a serious matter, and because it was an extension of the evasive conduct Mr Armstrong had employed with the claimant. On the balance of probabilities, we are satisfied that Mr Armstrong had resolved not answer the questions about his working habits and whereabouts to the level of detail that both the claimant and the respondent wished. Paul Armstrong and comments about the claimant’s disability[48]The claimant alleges that in May 2022, whilst on a work outing in Nottingham, Mr Armstrong made fun of the claimant’s requirement to use mobility aids as a result of her multiple sclerosis. In live evidence, the claimant described that at that time she needed to use a stick and crutches in order to help navigate unfamiliar geographical spaces. She described that Mr Armstrong had commented on the walking aids and asked what they were for in a mocking tone. She says that the comments, about a progressive condition which has evidently caused a great deal of upset and emotional harm, made her feel extremely upset to the extent that she withdrew from the event and went straight back to her hotel room when the dinner had finished.[49]The claimant says that she referred to the incident in her grievance lodged later in time against Mr Armstrong. That grievance does not give specific information about this incident, but does mention the claimant’s belief that Mr Armstrong had subjected her to bullying and disability discrimination. In our view, reference to the grievance does support the claimant’s evidence in chief about the incident.[50]The respondent was not able to provide any evidence to directly rebut the allegation. Mr Armstrong has left the respondent’s employment and was not present to give evidence. We are finding facts on the balance of probabilities. On the evidence before us, particularly in the absence of Mr Armstrong (meaning he has been unable to defend himself or his own actions), we find as a fact that Mr Armstrong did make fun of the claimant’s walking aids in Nottingham in May 2022. We also find that the claimant was extremely upset and distressed enough to withdraw from the planned social event to go and be alone in her room instead.[51]The claimant also alleged that Mr Armstrong told Mr Waters that he would “do her legs in”, in reference to the claimant. She says that she learned of this because Mr 15 of 40 Waters rang her and told her about it. Mr Waters did not attend to give evidence, but his witness statement submitted pointed to documents in the bundle which he said supported his position that “the alleged comment was never heard directly by me”. Mr Waters then refers to:- 51.1. Page 1875, an e-mail where Mr Waters tells Mr Armstrong that he does not want this issue to “get out of hand”.; 51.2. Page 1877, where Mr Waters provides a day book note on 8 September 2023 (over a year after the incident), where Mr Waters says he cannot remember the incident; 51.3. Pages 1901-1904, where Mr Armstrong gives his written response to the respondent’s investigation about the incident, where he says he is of partial hearing and cannot remember directly hearing anything, that he had loyalty to both the claimant and Mr Armstrong, but that Mr Armstrong had run a campaign against the claimant at the time in question.[52]In our view, we are being asked to find facts about what was said where there is no primary evidence about whether Mr Armstrong said he would ‘do the claimant’s legs’. In a factual allegation, it is the claimant’s burden to persuade us on the balance of probabilities that the comment was made. The claimant says that Mr Waters told her about it. Mr Waters, though not present in the hearing, consistently denies in writing that he heard the comment. What that means is that there is no evidence whatsoever before us which supports Mr Armstrong saying such a thing apart from the claimant’s assertion on a second hand basis that he did.[53]In those circumstances, chiefly in the absence of evidence confirming the issues, we do not consider on the balance of probabilities that Mr Armstrong did allege he would do the claimant’s legs in conversation with Mr Waters. In any case, we note this allegation is well out of time and would fall foul on any decision about extension of time which founds on a lack of evidence due in part to the delay in bringing the claim. 26 June 2023 and Paul Armstrong grievance[54]Tensions between the claimant and Mr Armstrong came into public view in a team meeting on 26 June 2022. We note that Mr Armstrong’s grievance also details incidents he was unhappy about in May 2022, where he felt that the claimant was bullying him. He also mentions an incident on 23 May 2022, where he says the claimant referred to his PADR report in the presence of others (page 1062). Mr Armstrong’s grievance was lodged on 5 July 2025.[55]Mr Armstrong details his complaint about the claimant which became referred to as ‘eye rolling’ on page 573, in a document attached to an e-mail on 28 September 2022. He records how he was making a strategic suggestion in a meeting to the claimant, when she “smiled cynically and raised her eyes to the ceiling”. He goes on to complain about the claimant’s conduct towards him, which he said was witnessed by others at the meeting.[56]In e-mails, we find that Mr Armstrong generally referred to the claimant as “Jen” or “Jennifer”. Mr Armstrong was off work after submitting his grievance against the 16 of 40 claimant. After submitting his grievance, he had received an e-mail from the claimant demanding answers to her questions about his working habits and what was happening on some historic cases. On 19 July 2022, he wrote to Ms Coxon to complain about the claimant’s e-mails (page 368). In that e-mail, he said he felt harassed and considered that the claimant was gathering evidence against him to counter the grievance he had raised. Throughout the one page e-mail, he referred to the claimant as “JB” instead of by name.[57]Ms Coxon forwarded the e-mail to the claimant for further information. The claimant complained that Mr Armstrong no longer afforded the dignity of referring to her by name. Generally, Ms Coxon forwarded on e-mails to the claimant from Mr Armstrong without filtering them. We find there were e-mails forwarded which complained about the claimant’s conduct and/or decision making. We accept the claimant found these offensive and that it was difficult to read them. We also accept Ms Coxon’s evidence that this was normal practice because the claimant needed to know what was happening in those conversations which were forwarded. We accept Ms Coxon’s evidence that this was her standard practice that she would do in any such circumstance; we find that Ms Coxon treated the claimant no differently to how she would anyone else.[58]Mr Armstrong’s grievance was investigated by Mr Parry from Home Office’s Professional Standards Unit (PSU). He met with the claimant on 10 November 2022. The notes from that meeting record the relevant conversation about the eye rolling on page 1118. The claimant did not respond directly to the allegation, but said that what Mr Armstrong suggested had been illegal and could not be endorsed. She did not explain any alleged behaviour as being possibly caused by her disability. In his investigation, Mr Parry considered that the claimant may have rolled her eyes which may have been a breach of standards.[59]Mr Scully conducted the decision making part of Mr Armstrong’s grievance. He met with the claimant on 29 March 2023. Minutes of that meeting were at pages 1035 to 1036. The claimant asked for them to be edited with comments to more accurately reflect Mr Parry’s investigation.[60]In the first instance, in respect of the eye rolling, the minutes record that the claimant was asked if she was not at her best in the meeting. The minutes record (page 1035):- “JB responded that she recognises that when PA asked to conduct illegal activity her face was that of surprise and she recognises that she had been bullied and harassed by PA for over a year at the point of the meeting. JB acknowledges that she possibly rolled her eyes”.[61]The minutes record that Mr Scully informed the claimant that his conclusion would be that it was possible that she rolled her eyes and should therefore reflect on her behaviour and whether it was in line with respondent values. Mr Scully confirmed there would be no disciplinary action.[62]The minutes do not show the claimant raised that her actions might have been caused by her disability. Her multiple sclerosis was not mentioned at all. We find that 17 of 40 the claimant had not linked her alleged eye rolling, or sought to excuse that behaviour, to or because of her disability.[63]On page 1032, the claimant wrote to have those minutes amended. In that e-mail, she wished to have recorded that she had not turned her camera on with Mr Scully because she “did not have confidence to appear on screen in case my face gives away my emotions”. She goes on to explain that the alleged behaviour was because of her surprise, and that she was sensitive about Mr Armstrong because she considered that he had bullied her. At no point on page 1032 does the claimant link her alleged behaviour in eye rolling to any protected characteristic. At no point does Mr Scully indicate in the meeting that the claimant had mentioned any protected characteristic either.[64]On 9 March 2023, the claimant wrote to Mr Waterfield to explain that facial twitching and raising eyebrows can be a symptom of multiple sclerosis (page 1015). There is no evidence that Mr Waterfield forwarded the e-mail to Mr Scully as the claimant had suggested. There is no such e-mail in the bundle, Mr Waterfield did not give evidence in written or live form which supports that he did send the e-mail on, and Mr Scully said he did not know that the two issues could have been linked.[65]Indeed, in his evidence, Mr Scully said he had no sight of any document indicating the claimant’s alleged behaviour could have been linked to a medical condition. He was not challenged on that point and we accept it on the balance of probabilities. Mr Scully struck us as a reliable witness who was tackling this task with professionalism. He had nothing to gain by hiding or ignoring such an explanation.[66]Mr Scully wrote to Mr Armstrong on 31 March 2023 to advise of the outcome of the investigation. In doing so, he explained as follows about the eye rolling (page 1026):- 66.1. The grievance about the claimant’s behaviour being below standards was partially upheld; 66.2. A common theme with the witnesses was that there was some eye rolling and lack of respect when the other person was speaking; 66.3. The majority interviewed expressed views that both Mr Armstrong and the claimant were demonstrating lack of respect for each other.[67]Mr Scully also wrote “on the basis of the investigation caried out I am asking you to reflect on your conduct at that meeting, I feel sure that on reflection you would have wanted to accord with the GLAA values”.[68]The claimant disputes that these summaries of the evidence were accurate, but she does not contend that, or offer facts indicating that, any such inaccurate summaries were as a result of discrimination.[69]Mr Scully wrote to the claimant on 29 March 2023 (pages 1099 to 1100) in a letter amended on 4 May 2023. He explained that he considered the claimant had rolled her eyes in the meeting and that this was a breach of respondent values. No disciplinary action follows, but we find the same type of warning about reflection and conduct was given to the claimant as was given to Mr Armstrong:- 18 of 40 “I am advising you to reflect on this incident and bear in mind the GLAA values and that as a Manager you very much set the example to your to your team of what is ok in terms of behaviours”.[70]Mr Armstrong left employment shortly after his grievance process concluded. The claimant understands, and we accept, that he went to work at another government body. On 3 August 2023, Ms Coxon e-mailed him to see if he would give a statement in proceedings (page 1475). We acknowledge as a fact that it is more difficult to secure evidence form an employee once they have left the respondent’s employment. There is no longer a duty to follow management instructions or act in the interests of the employer. Mr Armstrong responded to ask what the proceedings were about. Ultimately, the respondent has not produced any evidence in these proceedings directly from Mr Armstrong, who we also accept did not leave on happy terms following his dispute with the claimant and others. Claimant grievance delays[71]The claimant was sent a copy of Mr Armstrong’s grievance on 5 July 2022, the same day it was lodged (page 310). She responded to Ms Coxon about it on the same day, opening her e-mail by describing Mr Armstrong’s grievance as having “malicious and unfounded content”. She also said that she wished “to raise a counter complain[t] of malicious and vexatious accusations, based on [her] sex, age and disability.” The claimant also said that she wanted Mr Armstrong’s grievance to be dealt with formally rather than informally.[72]We consider that the claimant’s strong reaction to the grievance caused concern for Ms Coxon. We accept Ms Coxon’s evidence that the claimant needed careful management around her reactions to events and with the amount of support she appeared to need. We accept it because Ms Coxon was open and plain about it, and also because the written evidence does indicate that the claimant had the tendency Ms Coxon was concerned about, as is shown at page 310.[73]On 6 July 2022, Ms Coxon wrote to the claimant to remind her that it was not for the claimant to convince her of anything, but that Ms Coxon was working to secure an independent investigator (page 323). In terms of the claimant’s suggestion of raising a grievance, Ms Coxon advised:- “…all employees have the right to do so at any point. My suggestion in this case is that as all of the same people would need to be witnesses even if it were to be dealt with as 2 separate grievances, it seems logical that you simply provide your evidence as a respondent (which is also a witness), including where you feel that the complaints are untrue, as this will be your evidence. Should the investigator find that there is evidence which may indicate that any complaints or statements made as part of the process are not made in good faith, and may be known to be untrue or vexatious, then they would halt the grievance process and we would need to consider a separate disciplinary process, and that would be a decision for them and the DM to make”. 19 of 40[74]Ms Coxon referred Mr Armstrong’s grievance to PSU on 6 July 2023 (pages 334 to 335). She explained that it was necessary to invoke a formal procedure and have an independent investigator because of the claimant’s insistence.[75]On 7 July 2022, the claimant raised her grievance, sending it to the respondent HR and Ms Coxon by e-mail (page 340). The covering e-mail reads, relevantly:- “Please find attached official grievance against Paul Armstrong, having taken legal advice this morning…. ….I apologise for bringing this grievance but I feel I have no other option given the prolonged behaviour towards me and recent entirely unsubstantiated allegations against me.”[76]The claimant’s grievance (pages 342 to 344). The grievance sets out that Mr Armstrong bullied and harassed her, and displayed inappropriate behaviour towards others. The claimant says that Mr Armstrong had a negative effect on her health. The claimant leans heavily in her grievance on the fact that Mr Armstrong had brought a grievance against her. She says that Mr Armstrong had embarked on a campaign of retaliation with “false and libelous accusations of a malicious and vexatious nature.” In the desired outcome, the claimant listed ten actions, of which three centred around Mr Armstrong no longer making of false allegations. The claimant desired disciplinary action against Mr Armstrong.[77]Also on 7 July 2022, Ms Coxon sent the claimant’s grievance to Richard Murray at PSU. She asked for advice about how to deal with the grievance, noting that the claimant was the main subject of Mr Armstrong’s allegations. In his evidence, Mr Murray said that he did not open the attachment to read the claimant’s grievance. He said, and we accept, that he had understood the grievance to have been in response to Mr Armstrong’s grievance and that, because the claimant was a centrepoint in Mr Armstrong’s grievance, the two grievances were likely to be overlapping.[78]Although not having read the claimant’s grievance (which we accept), Mr Murray responded to Ms Coxon’s request for guidance about what to do next (page 345):- “Firstly, we would not consider JB’s grievance until after PA’s grievance has been investigated. If PA’s grievance was upheld, that would then cast doubt on JB’s allegation that the complaints were vexatious.”[79]On the evening of the same day, Mr Murray proposed that Mr Armstrong’s grievance be split into two. At the end, he suggested the claimant could have the choice whether to continue with her grievance. We note that, in a way which was common with operational matters within the respondent and PSU, Mr Murray also referred to the claimant as “JB” in his e-mails. We find that it is an organisational norm where the subject of e-mails have a more formal or operational purpose.[80]Also on the same day, Ms Coxon called the claimant to tell her that PSU would not investigate the claimant’s grievance until after it had complete the process for Mr Armstrong’s grievance. She says she explained (as she had advised earlier in e- mail) that the process of investigating Mr Armstrong’s grievance would also consider if his grievances were without merit. In that way, we consider that Ms Coxon 20 of 40 understood that the core concern of the claimant’s grievance about false and malicious allegations were going to be dealt with in the Armstrong grievance. The claimant contends she was not told her grievance would be considered second until after she had resigned a year later. On the balance of probabilities, we consider that is not accurate recollection. The claimant shows throughout the evidence that she is au fait with policies and timescales. She does not, we find, press for updates about the grievance process and the delays for several months. We consider she would have done if she had not been told of that decision, especially when she does continue to chase for answers about her concerns around Mr Armstrong’s ‘fraud’.[81]Mr Murray told us that PSU would not usually allocate two investigators to do simultaneous investigations into two linked grievances. We accept that evidence. He also said that Ms Coxon did not ask him if he could, or if there was some other way to deal with everything together. We accept that evidence, too. Ms Coxon told us that she did not think to ask, and accepted the position that PSU would only do one investigation at a time. Ms Coxon said she did not consider sourcing another investigator from elsewhere because that would cost money and she did not think, at this stage, that Mr Armstrong’s grievance process would become so drawn out by his own ill health absence.[82]Consequently, we find that an operational decision was taken to pause the claimant’s grievance until after the Armstrong grievance was completed. The claimant now says that this was in breach of the respondent policy, which had particular time scales in it. We find as a fact that the respondent did not act on the claimant’s grievance as the policy sets out. However, we are equally persuaded (by the insistence of both parties) that there was nothing written in to policy about what became characterised as a ‘counter grievance’ (ie. a grievance partly or primarily raised in response to a grievance by the accused to the aggrieved). In those circumstances, we are satisfied on the balance of probabilities that the policy was not envisaged to cover this situation, which justifies departure from it where the respondent can do so with proper cause.[83]We also find that the claimant wanted her grievance to be prioritised over Mr Armstrong on the basis hers met the definition of a ‘formal’ grievance, whereas she did not think his did (page 349).[84]The claimant says that she raised a complaint about Ms Coxon in October 2022, which was not investigated and was ignored. In her evidence, the claimant referenced her e-mail of 7 October 2022 to Mr Waterfield (page 616). That email discussed a conversation the claimant had had with Ms Coxon but did not make any allegation against Ms Coxon. There was frustration expressed about what the claimant interpreted as Ms Coxon disregarding working practices complaints about Mr Armstrong, but no personal complaint about Ms Coxon that we consider communicated a requirement for action.[85]The claimant also says she had a meeting with Ms McCaffrey in October 2022 where she raised these issues. Ms McCaffrey had no recollection of such a meeting. On balance, we consider there was no meeting or complaint. We do so because Ms McCaffrey persuaded us with her evidence that she did take matter seriously, and she had dealt with a grievance against Ms Coxon and so demonstrated no reluctance to us in doing so if she was aware of a grievance. 21 of 40[86]In her witness statement, the claimant contends that she started chasing for updates about grievance outcomes from November 2022 through to February 2023. The claimant says she did so through conversations with Mr Waterfield. In our view, the claimant was likely asking about when the outcome of the Armstrong grievance would be known. The claimant’s witness statement does not say that she was asking about her grievance outcome, which we consider is a telling turn of written language. We find that the claimant was not asking about when her grievance would be dealt with before February 2023, because she does not say that she was. The claimant did ask for confirmation that her grievance was in process on 27 February 2023, stating that her evidence was the same as that given to Mr Parry in the Armstrong grievance investigation (page 1072).[87]On 21 March 2023, the claimant asked Mr Scully whether he had made a decision in respect of Mr Armstrong’s grievance. In the same e-mail, she then wrote (page 1021):- “I am conscious that my grievance is still outstanding – and Paul’s sick pay runs out at the end of March. I don’t know his plans; however, it really is imperative that my complaints are investigated as it has been over 9 months since I submitted my grievance. Could we set a date?”[88]We consider this is further evidence that the claimant knew that her grievance was being paused behind the Armstrong grievance. She has picked up the baton for her grievance when she knew the Armstrong grievance was coming to a close. She mentions the delay to her own grievance but does not complain about it, most likely (we find as a fact) because she understood and accepted the reason for the delay in late March 2023.[89]It is clear that the claimant ran out of patience with the process in April 2023, and expressed that she was being failed by the organisation. By this point the claimant was off work sick and did not return. She had understood that Mr Parry at PSU would progress her grievance, but he was not instructed to do so. By 27 April 2023, Ms Coxon learned that PSU were having capacity problems with starting new investigations. On 27 April 2023, Ms Coxon wrote to the claimant to propose a new HR staff member would do the investigation (page 1092):- “I am still awaiting any progress from PSU, who had informed me that they had capacity challenges and knowing this matter was very much on your mind I consider it necessary to allocate an internal investigator…”[90]On the following day, the claimant said she did not want anyone internal at the respondent investigating the matter (page 1092). Ms Coxon took the feedback on board but explained that the claimant’s position was leading to further delay (page 1091). The claimant responded that the delay was because of pausing her grievance and asked the matter be escalated to Ms McCaffrey (page 1090). 22 of 40[91]On 2 May 2023, Ms Coxon wrote to the claimant again (pages 1089 to 1090) to explain that PSU were reporting a 3 to 6 month wait before doing investigations. In the circumstances, she said there were no realistic alternatives than having the proposed HR member do the investigation and then for Ms McCaffery (the CEO of the respondent) to make any decisions about the grievance. The claimant responded to object to the proposal, but she also told Ms Coxon “it’s up to you how you progress”. In the end, the respondent appointed Gary Ward to investigate the claimant’s grievance and some progress was made in June 2023 and July 2023.[92]Ms McCaffrey did conduct the respondent’s grievances which were not passed to PSU. In July 2023, she conducted grievances for Andrew Davies, who complained about Ms Coxon. We find that his grievances were addressed appropriately by Ms MacCaffrey, a finding which is relevant because there is an issue about complaints against Ms Coxon not being taken seriously. In our view, Ms McCaffrey was the only realistic alternative person to manage the claimant’s grievance if it was not going to be PSU. The other senior person, Mr Scully, had been involved already with the Armstrong grievance. Claimant resignation and pay[93]On 27 June 2023, the claimant was signed off sick to 29 September 2023.[94]On 14 July 2023, the claimant was told that Ms McCaffrey would be the decision maker in her grievance. She also learned that Mr Davies’ grievance had not been upheld. Around the same time, she heard that Mr Armstrong was not going to be asked to answer for an allegation the claimant had made about him having outside business interests. The claimant felt that Ms Coxon had engineered her line manager into a decision making role over the grievance. The claimant says, and we accept, that she became very unwell with the stress of learning these things at the same time.[95]On 17 July 2023, the claimant sent a letter of resignation (pages 1424 to 1426). In it, she gave a notice period of 12 weeks and asked for her last day of work to be the last day of her fit note (29 September 2023). She was on company sick pay for this period, and we find that she was not undertaking any work activity for the respondent because she was sick. We find that she did expect the respondent to fulfil its obligation under the contract to continue to pay her for her notice period, even thought the resignation purported to be founding a constructive dismissal.[96]In the letter, the claimant cites the respondent’s delay in dealing with her grievance, including the way it allowed her to be subjected to discrimination and bullying. Although the most recent act before resignation is pleaded as being Ms McCaffery’s appointment to oversee the grievance process, we cannot find as a fact that the claimant resigned in response to that. She does not cite that issue in her resignation or her witness statement. In fact, the thing that she says “forced” her out in her resignation letter was being told she required improvement in her appraisal by Mr Waterfield. That does not form any issue in her claim at all.[97]The claimant says that she was offered a new role at her current workplace on 25 July 2023 (Supplementary page 4). The wording of the e-mail disclosed says:- 23 of 40 “Congratulations on your job offer for the role of [….] Please find attached your provisional offer letter with further details about the post..”[98]Ms Coxon alleges that the claimant knew about her impending job offer earlier, and that Ms Coxon had been told by the claimant’s line manager that the claimant would resign upon learning of her start date. On the balance of probabilities, we do not accept this evidence ad an accurate record. It is not fixed in time, but we accept that the claimant was not officially offered the role until 25 July 2023, and that then it was subject to checks.[99]However, we consider it extremely unlikely that the claimant could have searched for, found, applied for, interviewed for, and secured the new job between her resignation on 17 July 2022 and 25 July 2022. In our view, it is more likely than not that the claimant was at least confident that she would get her new role at the point she resigned from the respondent, and we find as a fact that the claimant’s decision to pursue this new role was the principal trigger for her resignation with 12 weeks’ notice (which we note is likely enough time for the pre-employment checks required to be done).[100]In her resignation letter, the claimant asked for all leave and TOIL to be paid up to date. The respondent’s flexible working hours policy is at page 141 to 149. We find it applied to the claimant’s employment. Clauses 5.3 and 5.5 (pages 146 to 147) makes clear the maximum that can be carried by both office staff members and home working staff members (as the claimant was) is 37 hours. Clause 5.4 sets out a mechanism for being allowed to carry over that time, which included that flexi had been worked off from the previous month, that anything over 37 is new to the present month, and that the employee had been unable to work off flexi. Clause 5.8 is a blanket clause saying that an employee must take their flexi time prior to employment ending because the respondent “is unable to make any payment for them”.[101]We find as a fact that there is no contractual provision for the claimant to be paid for accrued but untaken at the end of the claimant’s employment. We accept that there was flexi time outstanding at the end of the claimant’s employment. Respondent culture and witnesses[102]We found as a fact that the respondent had a problematic at the point that Ms McCaffrey, Mr Scully and Ms Coxon joined the organisation in 2020 and 2021. Each of them confirmed to some greater or lesser extent that there were old fashioned values displayed by some staff in situ, and that included discriminatory behaviour.[103]We do not consider those respondent witnesses to have been a part of that culture. We find, as a fact, that they were part of the effort to eradicate that culture. Each said as much and we were satisfied from their evidence that they were doing so. This means that, as a fact, decisions that they made and actions taken were not so tainted with that discriminatory hangover. They do not possess the attitudes that they and the claimant were working hard to drive out of the respondent. Relevant law 24 of 40 Direct discrimination
Relevant law
[104]Section 13(1) Equality Act 2010 provides:- “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”.[105]The claimant must establish that she was objectively treated in a ‘less favourable’ way. It is not sufficient for the treatment to simply be ‘different’ (Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065 HL). The person(s) with whom the comparison is made must have “no material difference in circumstances relating to each case” to the person bringing the claim (section 23(1) Equality Act 2010). The comparator should, other than in respect of the protected characteristic, “be a comparator in the same position in all material respects as the victim” (Shannon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 HL). There is no requirement for a comparator to be identical, but the greater the differences, the less likely it might be that the difference in treatment was because of discrimination and so more is likely to be required to shift the burden of proof (Virgin Active Ltd v Hughes [2023] EAT 130.[106]If there is no such comparator in reality, then the Tribunal should define and consider how a hypothetical comparator would have been treated if in the same position as the claimant save for the fact that they would not have the protected characteristic relied upon (Balamoody v United Kingdom Central Council for Nursing, Midwifery and Health Visiting [2002] ICR 646, CA).[107]The phrase ‘because of’ is a key element of a direct discrimination claim. In Gould v St John’s Downshire Hill [2021] ICR 1 EAT, Mr Justice Linden said, in respect of determining ‘because of’:- “It has therefore been coined the ‘reason why’ question and the test is subjective… For the tort of direct discrimination to have been committed, it is sufficient that the protected characteristic had a ‘significant influence’ on the decision to act in the manner complained of. In need not be the sole ground for the decision… the influence of the protected characteristic may be conscious or subconscious.” Harassment 108. . Section 26 Equality Act 2010 provides:- “(1) A person(a) (A) harasses another(b) if – (a) A engages with unwanted conduct related to a protected characteristic, and (b) The conduct has the purpose or effect of – (i) Violating B’s dignity, or 25 of 40 (ii) Creating an intimidating, hostile, degrading, humiliating or offensive environment for B. …. (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account – (a) The perception of B; (b) The other circumstances of the case; and(c) Whether it is reasonable for the conduct to have that effect.”[109]It is important to emphasis that the words outlined by statute are not diluted to the extent that a claimant does not need to evidence more than ‘upset’ to prove a harassment claim. The Tribunal is “an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment” (per Lord Justice Elias in Land Registry v Grant [2011] EWCA Civ 769). The wording of the statutory test remains paramount. Burden of proof in Equality Act 2010 claims[110]Under section 136(2) Equality Act 2010, the claimant needs to show facts, found on the balance of probabilities, which could lead the Tribunal to properly conclude that the discrimination has occurred before any other explanation is taken into account. If the claimant succeeds with this, then it is for the respondent to show that the contravention has not occurred (section 136(3) Equality Act 2010). The Tribunal must first consider whether the burden does shift to the respondent. The claimant must show more than simply there is a protected characteristic and a difference in treatment (Madarassy v Nomura International Plc [2007] IRLR 246). The operative point is whether the Tribunal could conclude there had actually been discrimination, not simply that there might have been (Hammonds LLP v Mwitta [2010] 0026/10).[111]S136 clearly sets out a two stage test, but the Tribunal is cautioned against applying that test in a way which is too mechanistic. This is important to ensure that discrimination is not incorrectly imputed into circumstances where the case is simply about unreasonable treatment for other reasons, or unfortunate circumstances (Chief Constable of Kent Constabulary v Bowler [2016] EAT 0214/16). There is a manifest difference between unreasonable treatment of a claimant, and unlawful discrimination (Bahl v The Law Society [2004] EWCA Civ 1070).[112]Once the burden has shifted, if it does, the respondent must show that the treatment was ‘in no sense whatsoever’ due to the protected characteristic (Igen Ltd v Wong [2005] IRLR 258). In weighing up whether or not there has been discrimination, the Tribunal should consider all of the evidence from all sides to form an overall picture. Causation, or the ‘why’ the conduct was committed, is a subjective conclusion of law rather than objective conclusion of fact: what is the reason for the conduct and is that reason discriminatory (Chief Constable of West Yorkshire Police v Kahn [2001] UKHL 48). It is almost always the case that the Tribunal needs to 26 of 40 discover what was in the mind of the alleged discriminator (The Law Society v Bahl [2003] IRLR 640). Time limits[113]Section 123(1) Equality Act 2010 provides that claims for discrimination and harassment should be brought within three months of the act being complained of. Time can be extended to take account of a period in ACAS early conciliation where, if ACAS notification occurred within three months, the days spent in early conciliation will ‘stop the clock’. Events occurring more than three months before the claim is issued may be brought as claims in time if they form part of a course of related discriminatory conduct, the last one of which is in time when the claim is brought.[114]If, despite all of the above, a claim is still brought outside of the three month time limit, the Tribunal can extend time if it considers that it is just and equitable to do so. This is a broad discretion which requires the Tribunal to balance all of the circumstances of the case including the length and reason for the delay, the prospects of the claim brought out of time, and any other factor which appears relevant. The Tribunal should weigh those factors to determine the prejudice to each party in extending or not extending time, and then make a decision (Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640). Time will almost always not be extended where time limits are being considered at a final hearing and the Tribunal has determined that those late claims are not well founded and would be dismissed. In those cases, it would be pointless to extend time anyway. Constructive dismissal[115]An employee is entitled to treat themselves as constructively dismissed where they terminate their employment contract following the employer seriously breaching that contract in a way which goes to the root of the employment contract (Western Excavating (ECC) Ltd v Sharp [1978] QB 761).[116]The serious, or repudiatory, breach of contract may be to express provisions of the employment contract or to provisions which are implied into the contract by case law. All employment contracts contain a term that “the employer shall not without reasonable and proper cause conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee” (Malik v BCCI SA (in Liquidation) [1998] AC 20, as amended by Varma v North Cheshire Hospitals NHS Trust [2007] 7 WLUK 116).[117]Whether or not there has been a breach to the implied term of trust and confidence is an objective question and the employer’s intentions are irrelevant. If the employer commits conduct which is likely to destroy or seriously damage mutual trust or confidence, then it will be deemed to possess the subjective intention (Leeds Dental Team Ltd v Rose [2014] ICR 94) and the employee is likely to be able to accept that repudiatory breach and terminate the employment contract (Morrow v Safeway Stores Plc [2002] IRLR 9).[118]The determination as to whether a breach is sufficiently serious as to constitute a repudiatory breach is an objective test, and it does not matter that the employer might genuinely believe a breach to not be repudiatory (Tullett Prebon Plc v BCG 27 of 40 Brokers LP [2011] EWCA Civ 131). The overall repudiatory breach may be a single act or a collection of smaller breaches or a series of events which are not individually breaches but which amount to a breach when put together (Garner v Grange Furnishing [1977] IRLR 206.[119]To accept a repudiatory breach of contract and claim constructive dismissal, an employee must resign or treat the employment contract as having ended in response to the breach. It is sufficient for these purposes for the breach to have played a part in the decision to resign (Wright v North Ayrshire Council [2014] ICR 77). The tribunal is able to ascertain the true reason for the employee’s resignation (Weathersfield Ltd v Sargent [1999] ICR 425).[120]When faced with a repudiatory breach of contract, an employee could choose to either accept the breach, which ends the contract, or could affirm the contract and insist upon its further performance. Failure to resign or act in a way which treats the employment contract as ending risks the employee either affirming the contract or waiving a breach of the contract of employment. When considering whether a contract has been affirmed, the tribunal will look at all of the circumstances of the case (WE Cox Turner (International) Ltd v Crook [1981] ICR 823). Affirmation may be inferred by conduct and what the claimant says or does which shows that they intend the contract to continue (Chindove v William Morrison Supermarkets Plc EAT 2001/13).[121]Employees should be careful when choosing to continue to work for a period if they intend to rely upon a repudiatory breach of contract in a constructive dismissal claim. In Quilter Private Client Advisers Ltd v Falconer [2020] EWHC 3294 (QB), Calver J said, at para 121: “It is undoubtedly the case that if the employee decides to accept the repudiatory breach, he must do so unambiguously and with sufficient dispatch. If his purported acceptance is delayed, he runs the risk of a court finding that his action has not been sufficient to discharge the contract. However, in my judgment it is what happens during the delay which is the critical feature: provided the employee makes unambiguously clear his objection to what has been done by the employer, he is not necessarily to be taken to have affirmed the contract by giving a short period of notice, and continuing to work and draw pay for a limited period of time ... It all depends upon the facts of the particular case whether the employee has nonetheless unambiguously accepted the repudiation of the employer and with sufficient dispatch. The length and circumstances of the delay require to be examined in each case.” Unlawful deduction from wages[122]An employer is unable to deduct from the wages of a worker employed unless this is authorised by statute or contract, or where the worker has previously agreed to the deduction in writing (section 13(1) Employment Rights Act 1996). Wages must be ‘properly payable’ to count as a deduction (section 13(3)). Determining whether wages claimed are ‘properly payable’ requires the tribunal to consider the circumstances of the case and what the contract of employment means for those 28 of 40 circumstances (Agarwal v Cardiff University and anor [2019] ICR 433 CA; Delaney v Staples (t/a De Montfort Recruitment) [1991[ ICR 331 CA). Discussion and conclusions Direct disability discrimination[123]In relation to this part of the claim, we found the following core facts:- 123.1. Mr Scully did not know that there was a possible or asserted link between the claimant’s disability and her eye rolling; 123.2. Mr Scully gave the claimant and Mr Armstrong the same wording around reflecting on conduct to ensure that behaviour was in line with respondent values; 123.3. Ms Coxon referred Mr Armstrong’s grievance to PSU first because it was lodged first, and thereafter was told by PSU that the Armstrong grievance would be dealt with first; 123.4. Ms Coxon pursued Mr Armstrong for what the claimant variously describes as ‘outstanding management requests’ and ‘fraud’; 123.5. Ms Coxon forwarded e-mails from Mr Armstrong to the claimant because that was her practice and she would do the same for anyone and would behave the same way in respect of such communications; 123.6. Mr Armstrong went off sick during his grievance, and then left employment, (which meant that Ms Coxon could not at an appropriate time begin any disciplinary action).[124]These facts mean that the following issues are not able to be sustained as factual allegations of actions:- 124.1. Mr Scully failing to implement the same warning against Mr Armstrong; 124.2. Mr Armstrong not being challenged about outstanding management requests from the claimant in respect of mileage; 124.3. Ms Coxon undermining the claimant by deciding to ignore disciplinary actions around Mr Armstrong.[125]We then consider the remaining issues in turn. Mr Scully failing to consider the claimant’s disability, intimidation and denial around ‘rolling eyes’[126]To win this part of the claim, the claimant needs to establish that Mr Scully did not consider the claimant’s disability, intimidation and denial around rolling her eyes because of the claimant’s disability. 29 of 40[127]We have found that Mr Scully did not know that the disability could have caused the behaviour. The claimant had not told him of the link. Mr Waterfield had not passed it on. The claimant explained that she had issued with Mr Armstrong, but Mr Scully clearly did not feel that excused the behaviour he found in the face of her partial denials.[128]The claimant needs to establish facts from which we could properly conclude the complaint is because of discrimination. In our view, she has not done that. We are satisfied that Mr Scully did not know of the link. We have found as a fact that Mr Scully was a force of change in the respondent who was not tainted by previous discriminatory attitudes. In light of that positive finding, there is no background context against which the claimant can imply that Mr Scully could have had a discriminatory intent. In light of the positive finding that he did not know of the link, we consider he could not have acted upon the link.[129]The claimant does not succeed in shifting the burden of proof. Even if she had, perhaps because of historical factors relating to the respondent’s culture, we are satisfied by Mr Scully’s explanation of his actions, which is that he did not know of the link and made his decision on all of the evidence before him. He could not have acted on a link he did not know about.[130]This allegation fails and is dismissed. Ms Coxon failing to treat the claimant the same as Mr Armstrong by his grievance being dealt with immediately[131]Mr Armstrong’s grievance was lodged on 5 July 2022. By 6 July 2022, Ms Coxon understood that the claimant required the matter to be properly investigated with evidence, because she had said so. The claimant also said that it should be investigated by someone external. Ms Coxon therefore instructed PSU prior to the claimant’s grievance being lodged. We have found that PSU then advised Ms Coxon that the claimant’s grievance should be treated separately and done afterwards.[132]On the face of it, the claimant has had less favourable treatment than Mr Armstrong because her grievance was not passed to PSU as quickly for investigation. However, that does not take account for the fact that the situation was entirely different because of the nature of that grievance and the timing of it. Most importantly, the claimant’s grievance was postponed for operational reasons, as we found above. No decision was made because of the claimant’s disability.[133]We are satisfied that the claimant’s grievance would have been treated the same way if she had not been disabled, because the fact pattern which led to the postponement of her grievance has nothing to do with the claimant’s disability. In those circumstances, we do not consider the claimant has satisfied the first part of the s136(1) test and the claim must fail.[134]Even if she had, perhaps because of historical factors relating to the respondent’s culture, then we are satisfied that the decision was made entirely for the operational reasons identified and that the claimant’s disability had no part to play in the decision.[135]This allegation fails and is dismissed. 30 of 40 Emma Coxon forwarding the claimant emails from Paul Armstrong containing aggressive, bullying and intimidating content / allowing Paul Armstrong to send messages which were disrespectful and discriminatory around the claimant’s name[136]We found as a fact that Ms Coxon was following her usual practice in the way she dealt with e-mails from Mr Armstrong. Where that is the case, it is unlikely that the decisions taken could be motivated by the claimant’s disability. Where we are satisfied this was Ms Coxon’s usual practice, we cannot consider that a hypothetical comparator without disability would have been treated any differently.[137]In our judgment, keeping in mind that Ms Coxon is also a driver of change at the respondent not tainted by cultural history, the claimant has not established facts from which we could properly decide Ms Coxon did these things because of the claimant’s disability. In any case, we do not consider this is less favourable treatment compared to any form of comparator.[138]This issue fails and is dismissed. Disposal of this part of the claim[139]No allegation of less favourable treatment because of disability succeeds and the claim is dismissed. To the extend these allegations are out of time, time cannot be extended as a continuing act because there were no acts. We do not consider it just and equitable to extend time in circumstances where none of the allegations succeed. The claim is also dismissed for want of jurisdiction. Disability related harassment and time limit[140]We did not find as facts that two of the three instances alleged to be disability related harassment took place. The parts of this claim orientated around Mr Armstrong allegedly threatening to ‘do’ the claimant’s legs did not occur, in our judgment. We also found that Ms Coxon did not make spiteful or malicious complaints to the claimant’s line manager. Those allegations cannot found harassment claims.[141]We found that Mr Armstrong did make comments making fun of the claimant’s walking aid. We found that that had the effect of severely upsetting the claimant to the extent that she withdrew from the social event. We accepted her evidence that she was particularly sensitive about her walking aids, keeping in mind that this was a feature of a degenerative condition.[142]In our judgment, Mr Armstrong’s comments were unwanted conduct related to her disability. The claimant did not want to have fun made of her walking aid. The aids were required as a result of the claimant’s disability and were a feature of her appearance at that time which were inherently linked to her disability. There is no way around that link, in our view, and the respondent did not attempt to argue any.[143]The question is whether it had the required statutory effect. In submissions, Mr Bowne urged us to pay heed to Grant. He did not suggest that the claimant could not have been sufficiently distressed so as to have been harassed, but the point was gently made that we should be satisfied that the claimant was more than simply upset 31 of 40 or offended, or some other feeling short of the statutory definition of harassment. We were so satisfied. The claimant’s evidence on the issue was clear, and she was upset recounting comments made about her walking aids. We consider that the issue was sensitive for the claimant, and that she felt degraded and humiliated by Mr Armstrong’s comments.[144]We next considered whether the conduct had the intention of making the claimant feel harassed. We have no evidence about that and found no facts, so we move on to consider if it was reasonable for the claimant to feel that way. We consider it was in the circumstances. In our judgment, it takes bravery for someone to attend a social event with walking aids required by a new phase of a debilitating illness. They are in a vulnerable position and it is reasonable to feel vulnerable. This is not a circumstance brought about by life choice where a Tribunal may consider that a decision was made to risk the consequences of that choice. In those circumstances, we consider that the claimant’s feeling of being harassed about the comments was reasonable.[145]This means that, if the claim had been brought in time, it would have succeeded at this point. However, the incident took place in May 2022. The primary time limit expired in August 2022. The claim was not brought until July 2023, almost a year after the time limit expired. It is a single act found, so there is no continuing course of conduct which could pull the claim in time. The claimant therefore needs a just and equitable extension to be able to succeed with the claim in this hearing. It was in balancing these factors that the Panel fell into a majority and minority split.[146]In her evidence, the claimant did not offer any specific evidence about why the claim was delayed. We can see, from the evidence, that the parties got pulled into the grievance process. Although not specifically set out, we are conscious that disability discrimination was mentioned by the claimant in her grievance lodged in early July 2022.[147]We identified the following factors as being relevant to our determination as to whether it was just and equitable to extend time:- 147.1. The harassment complaint in question would otherwise succeed; 147.2. The complaint would have formed part of her grievance, although that grievance was then postponed; 147.3. The delay in brining the claim of almost a year beyond the time limit is significant; 147.4. In the intervening period, the claimant had shown herself able to understand complaints processes and ran a grievance involving the application of law and policy, showing she was capable of running a claim; 147.5. If the claim had been brought in time, Mr Armstrong would have been engaged with the respondent in the grievance processes and his specific evidence could have been explored; 32 of 40 147.6. If the claim had been brought in time, Mr Armstrong was likely to have still been employed when the respondent had to respond to the claim, complete disclosure, and give witness statement evidence; and 147.7. The prejudice caused by the delay fell entirely on to the respondent because the claimant lost no evidence as a result of the delay, but the respondent likely lost the opportunity to(1) properly rebut the allegations through the use of Mr Armstrong, or(2) to defend the allegation using the statutory defence against vicarious liability, having had the opportunity to properly interrogate Mr Armstrong’s evidence whilst he was still employed.[148]The minority considered that it was just and equitable to extend time principally because we found the allegation proved on the balance of probabilities, and because the conduct itself was considered so offensive that it was not conscionable for the claimant to not be compensated for the harassment suffered. The minority also considered that the claimant likely expected the matter to be resolved in the grievance, and that it was against justice and equity for the claimant to lose out on remedy because she was prepared to try and resolve matters internally. For the minority, these factors outweighed all of the others due to their gravity. The minority did not consider it just to have the claimant establish a successful harassment claim and for it to then be dismissed.[149]The majority took a different approach to the question, focusing on the likely effect of the claimant’s delay in bringing the claim. The majority were conscious that the claimant established the facts underpinning the claim significantly because hers was the only direct evidence we heard about the matter. In the absence of any contradictory evidence, and with a matter about which there was essentially no documentary evidence, the claimant could have said anything plausible and established it as a fact. In those circumstances, the majority were cautious about how secure the unanimous factual finding might have been if Mr Armstrong had given evidence which rebutted the claimant’s account.[150]Principally, the majority considered that the respondent would have been on a surer footing in responding to the claim if it had been brought in time. The particular allegation in question was not set out very clearly in the grievance. As such, Mr Armstrong has not been required to give much of a specific response to it. If it were part of the claim brought in time, it would have been put more clearly and the respondent could think about how to respond.[151]Most persuasively, the respondent could have defended the claim on the basis of Mr Armstrong’s specific denial and produced witness evidence to rebut the allegation. It could also have accepted that Mr Armstrong did the conduct, but pleaded that it had taken all reasonable steps to stop the harassment taking place. The respondent was unable to either because, by the time the claim was brought, it was unable to get the information or evidence from Mr Armstrong because he had left the employment in unhappiness after time off sick. In short, in the majority’s view, the respondent was deprived of the opportunity to run an effective defence by the delay.[152]With this view in mind, the majority did not consider the fact the claimant was able to establish the claim without and effective opposition in the hearing to be a 33 of 40 particularly weighty factor. Indeed, the majority considered that there was a risk that the delay had meant that there had not been a fair hearing of this disability harassment issue. In those circumstances, the majority was firmly of the view that it was not just and equitable to extend time. It did not consider that the overall conclusion that the claimant had established harassment was sufficiently safe to be a reason alone to extend time, as the minority did.[153]For those reasons, by majority, it is not just and equitable to extend time to hear the complaint. The Tribunal has no jurisdiction to deal with this harassment complaint, and so it is dismissed.[154]All of the disability harassment claim fails and is dismissed. Direct age discrimination[155]In our judgment, the claimant has failed to set out any facts from which we could properly conclude that she was subjected to less favourable treatment because of age. This point applies to all of the issues under this section.[156]Most crucially, the claimant did not put to any witness that her treatment was because of her age, in that she was younger than Mr Armstrong or anyone else. In those circumstances, the factual denials of those witnesses that they were motivated by the claimant’s age prevails.[157]In any case, the claimant has not provided the ‘something more’ required to establish that her treatment could be because of age. The claimant has identified her age group. She has identified treatment she is unhappy with. She has not said how they relate. Her evidence in chief mentions ‘age’ only once. Her grievance against Mr Armstrong (not about Mr Scully or Ms Coxon) mentions age once but does not detail any specific allegations or examples of age discrimination. She gives no further detail in the evidence submitted as part of her grievance, either.[158]We accept that the claimant was subjected to age related comments when she first joined the respondent. We accept that the claimant has likely been subject to age discrimination in the past, because she was younger than those around here. We do not accept that she was the subject of age discrimination in respect of the allegations of this claim.[159]These allegations are made against Mr Scully and Ms Coxon. As we have set out several times, we do not consider that these two individuals were a part of the previously problematic culture. Both explained that they had identified that culture when they joined the respondent. Both explained that they were keen to change and professionalise the culture, and we accept that explanation.[160]This means that this claim gained no traction at all during the hearing, and it is Age related harassment[161]The claimant did not make any argument or challenge any witness to the effect that actions were harassment related to age. We have found as a fact that Ms Coxon 34 of 40 did not make any of the comments which the claimant complains about as harassment in the list of issues. That allegation is dismissed.[162]The claimant did not appear to advance this claim in the hearing. Her evidence in chief does not explain how the allegations against Mr Armstrong were related to age, or how the impact of those matters made her feel in respect of her particular age group. We have found no facts indicating that Mr Armstrong was motivated by the claimant’s age at the time to which these issues relate.[163]We have found that the adoption of initials in communications at the respondent was a common operational practice where matters had a more formal or operational purpose. This was demonstrated by Mr Murray. Mr Armstrong did it with the claimant’s name when he was complaining about her contacting him demanding answers after he had submitted his grievance of bullying against her.[164]The claimant says that Mr Armstrong using her initials was unwanted conduct. We accept that evidence with some hesitation because it seems to us to be unusual that a senior manager would be so sensitive. We do not consider that the unwanted comment related to the claimant’s age. She has provided no explanation about, other than to cite her previous treatment from someone else. It does not seem to us that the adoption of the claimant’s initials is so inherently linked to age that the claimant is not required to explain the link. We found as a fact that the use was an operational default, and further consider this is likely because Mr Armstrong felt defensive about the claimant’s conduct. This allegation therefore fails and is dismissed.[165]We have similar conclusions about the other age related harassment claims brought against Mr Armstrong. The claimant does not relate that behaviour to her age in her evidence. We do not consider the behaviour complained of was discernible as conduct inherently relating to age.[166]For all those reasons, all elements of this claim fail and are dismissed. To the extent any of them are out of time, time is not extended. Direct sex discrimination[167]The claimant advances no evidence in her witness statement to explain why the matters complained of in this part of the claim are less favourable treatment because of sex. Her evidence in chief mentions sex or that she is a woman only in respect of the historic conduct we have accepted, but which this claim is not about. The claimant also did not question the witnesses along the lines of her treatment being the way it was because of sex. Those questions focused around disability.[168]We have not found any facts indicating that Mr Scully or Ms Coxon (the two about whom the issues relate) had any disposition towards meting out sex discrimination. The opposite is so, given their desire to change the culture at the respondent.[169]The claimant has the burden of establishing facts from which we could properly conclude the conduct complained of was less favourable treatment because of sex. Such is the failure of the claimant to provide any evidence about sex discrimination, we can group all of the allegations together and dismiss them in one determination. The burden does not shift to the respondent. 35 of 40[170]This part of the claim is dismissed. To the extend any of these allegations are out of time, time is not extended. Sex related harassment[171]The issues complained of under this head are the same as the age harassment claim, but with the protected characteristic being sex instead. We adopt the same analysis as those paragraphs above. The claimant has not advanced or put this claim. She has offered no evidence in support of it. The conduct complained of does not strike us at inherently about sex. Ms Coxon did not make the comments the claimant complains of.[172]This part of the claim is dismissed. To the extend any of these allegations are out of time, time is not extended. Constructive dismissal[173]The claimant alleges that there were five breaches of contract, or five issues culminating in a last straw which created an overall breach of contract, which gave rise to her constructive dismissal claim. In this judgment, we consider each of those through the Malik lens, and then consider whether the claimant resigned in response to any of those things, and then whether she waived the alleged breach or waived it whilst doing so. Not taking allegations of fraud seriously[174]Taking the first alleged breach, we found as a fact that the respondent did not ignore the claimant’s allegations about Mr Armstrong. Indeed, we found as a fact that Ms Coxon did ask him about those issues. We accepted Ms Coxon’s evidence that she was keen to understand Mr Armstrong’s responses to those issues, but that she was frustrated from doing so by his evasiveness, his absence, and then ultimately in our judgment by his leaving the respondent’s employment. We are clear that Ms Coxon’s actions were not what the claimant expected. Her views about what should have happened were clearly articulated. She thought that Mr Armstrong should face instant misconduct actions and dismissal if the allegations were accurate.[175]In our judgment, the respondent had proper cause for not escalating the investigation into Mr Armstrong as the claimant would have wished. The claimant’s allegations against Mr Armstrong, particularly in the matters which the claimant has now defined as fraud, gave rise directly to Mr Armstrong’s grievance against her. Although the grievance was ostensibly triggered by the ‘eye rolling’ meeting, the grievance is clear that Mr Armstrong thought he had been bullied and micromanaged by the claimant at the time when the claimant was pursuing him for answers to these questions.[176]In our view, this was not a simple equation for the respondent. It was dealing with an allegation that the claimant was bullying Mr Armstrong. At the same time, the claimant was insisting on answers and escalation for the same subject. Then, in July 36 of 40 2022, the claimant did a personal search on Mr Armstrong outside of a work reason, and found more issues she wished him to be investigated about.[177]Fundamentally, the respondent could not be seen to favour the claimant over the respondent at the time of the grievance. Indeed, to launch further investigation into Mr Armstrong would, in our view, risk exposing the respondent to a potential victimisation claim from Mr Armstrong because his grievance included allegations of discrimination. In our judgment, the respondent did all it could. Ms Coxon asked Mr Armstrong for an account about the allegations. He gave some information but refused to give more. He was off sick, and then he left. Where the respondent had proper cause for acting as it did, it does not matter if the actions had the effect of destroying or seriously damaging the trust and confidence of the claimant in the respondent. There is no breach of contract in respect of this issue. Not acting promptly on the claimant’s grievance[178]Taking the second alleged breach, we consider that the respondent did not act in accordance with its policy when dealing with the claimant’s grievance. However, we have found as a fact that the policy did not cover the situation where the timing of the claimant’s grievance made it appear it could be retaliation, nor where the claimant’s grievance was expressly stated by her to be a response to Mr Armstrong’s grievance. We have found that Ms Coxon and PSU considered that it was appropriate for the claimant’s grievance to be postponed behind the Armstrong grievance. In our judgment, the respondent was correct to consider that the claimant’s core complaint (that Mr Armstrong had made false and malicious allegations) could be dealt with as part of the Armstrong grievance itself. It did not need a separate process, as Ms Coxon had advised before the claimant lodged her grievance.[179]In our judgment, the respondent had proper cause to postpone the claimant’s grievance behind the Armstrong grievance. The claimant was insistent upon her grievance being investigated by someone outside of the respondent. The only option, without significant cost, was PSU. PSU said it would only consider one at a time, having already been referred the Armstrong grievance (which makes sense because it was lodged first and it made serious accusations of bullying and discrimination).[180]When the decision was made to postpone the claimant’s hearing, the respondent did not know that the process would take as long as it did. The claimant began to push for her grievance to be dealt with from February 2023, after she understood that the Armstrong grievance was coming to a close. We accept the claimant understood that PSU would do the investigation into her grievance. We also accept this was the respondent’s understanding. Unfortunately, through April and May 2023, it became clear to the parties that PSU did not have capacity to deal with the complaint. Ms Coxon understood and advised there would be a three or six month delay. Where PSU was the mutually nominated body to investigate the grievance, we consider the respondent had proper cause in trying to instruct PSU to do the investigation at this period. We also consider that it would not damage the mutual term of trust and confidence for the respondent do be doing what the claimant wished – trying to initiate PSU handling her grievance. 37 of 40[181]Once it became clear to Ms Coxon that there would be months of delay waiting for PSU after resolution of the Armstrong grievance, she proposed an internal process instead. This was acting upon the claimant’s grievance to get the matter dealt with. The claimant was against that, but cannot argue that the respondent was failing to deal with her grievance through having it done through Mr Ward and Ms McCaffrey.[182]In our judgment, the respondent was acting reasonably on the information available to it when taking decisions which ultimately did delay the claimant’s grievance. It was justified in postponing the grievance behind the Armstrong grievance, even though that process took longer than anticipated because of his absence. It was justified in trying to instruct PSU to deal with the grievance. It then tried to progress the grievance when it faced further delays. In our judgment, those actions did not mean it acted in a way which was calculated or likely to destroy or seriously damage the implied term. Even if it did, it would have proper cause for doing so.[183]The delays to the grievance process were unfortunate, and the respondent witnesses all said they might have acted differently with the benefit of hindsight. They did not have that benefit, and sometimes matters are unavoidably delayed even though all are working with the best of intentions. There is no breach of contract with this issue. Failing to recognise complaint against Ms Coxon[184]On the evidence shown to us, there was no complaint lodged by the claimant against Ms Coxon in October 2022. The claimant was frustrated and expressed frustration with Ms Coxon’s actions (or inactions) about Mr Armstrong’s failure to answer allegations, but there was no grievance raised and the e-mail on page 616 did not ask Mr Waterfield to do anything about Ms Coxon when the frustrations were aired. In our judgment, there was no complaint and so the respondent cannot be criticised for failing to recognise it. There is no breach of contract with this issue. Refusing to investigate complaints against Ms Coxon by other members of staff[185]The only complaint referred to in the bundle is that brought by Mr Davies in July 2023. Ms McCaffrey dealt with that complaint as a grievance. The grievance was investigated and a full outcome letter was produced to answer Mr Davies’ complaints against Ms Coxon. It seems to us that the claimant does not think that the grievance was handled appropriately, but we do not see how that is a sustainable argument which could properly go to the trust and confidence the claimant had in the respondent. The claimant did not, so far as we were shown, have access to all of the issues and evidence in the grievance.[186]In our judgment, the respondent doing a full grievance process for Mr Davies which resulted in a reasoned outcome cannot be conduct which is likely to destroy or seriously damage the implied term of mutual trust and confidence between the claimant and the respondent.[187]There is no breach of contract with this issue. This issue is also in time if it were to be a standalone claim around an alleged repudiatory breach of contract. It is not. 38 of 40 Appointing Ms McCaffrey as the decision maker for the claimant’s grievance[188]Ms McCaffrey is the respondent’s CEO. She had not been involved in the Armstrong grievance. If the claimant’s grievance was to be dealt with in house, then Ms McCaffrey was in our judgment the most suitable person to do that. The respondent had proper cause for selecting her.[189]The question then is whether it was a repudiatory breach of contract for the respondent to bring the grievance in house when the claimant had wanted the grievance to be investigated by PSU. In our view, it was not. When Ms Coxon proposed bringing the grievance in house as a result of the advised delay of months wit PSU, the claimant did not object. She said “it’s up to you how you progress”. In our judgment, it is reasonable for the respondent to have interpreted the claimant’s position as being neutral on whether or not the grievance was brought in house. Given the delay if the grievance was not brought in house, and given that the claimant was no longer insistent on the PSU process, the respondent had proper cause to appoint Ms McCaffrey as the decision maker in the claimant’s grievance.[190]There is no breach of contract with this issue. This issue is also in time if it were to be a standalone claim around an alleged repudiatory breach of contract. It is not. Cumulative breach[191]We understand that the claimant was unhappy with all of the matters set out above, none of which were individual breaches of contract. We next consider if there was some cumulative breach as a result of the overall handling of the relationship by the respondent. In our judgment, there was no such cumulative breach. At each turn, the respondent had proper cause to act as it did. It was responding to a difficult situation which was fundamentally about two officers falling out with each other and then each accusing the other of, among other things, bullying, harassment and discrimination. It was a situation which took time to unpick properly, especially as both employees had sickness absence for significant periods of time as the processes went on.[192]There was no cumulative breach of contract. The constructive dismissal claim must fail. The rest of the legal tests[193]For completeness, we make clear that we consider the claimant did resign in response to these issues. Although we consider her finding a new job role was the likely trigger for the resignation, these other matters did play a part and that would have been sufficient. Waiver/affirmation[194]In our judgment, the claimant would have waived any breach upon her decision to resign and to hold the respondent to 12 weeks’ notice. Although we accept that this is not a black and white issue, we note that the claimant was off sick during her notice period. There is no suggestion of her needing to finish off tasks for the service, 39 of 40 or hand over, or await a grievance outcome to try to resolve matters. She gave notice of termination and then simply expected the respondent to be held to the contract by continuing to pay her sick pay for her time off work.[195]In our view, it is incompatible with the principles of repudiatory breach of contract to say on the one hand there has been a terminable breach, which ends the contract through repudiation, which is accepted, but then to require the respondent to adhere to a term of the contract and pay the claimant. The contract is either ended upon the repudiation, which releases the respondent from the obligation to pay the claimant, or it is not, and the contract continues despite the repudiatory breach. In our judgment, this is what occurred. The claimant waived the breach in her notice of termination by requiring the respondent to continue to pay her between her resignation and last day in employment.[196]Even if there had been a repudiatory breach of contract committed by the respondent, the constructive dismissal claim would have failed for this reason.[197]The constructive dismissal claim is therefore not well founded and is dismissed. Unlawful deductions from wages[198]We accept that the claimant had flexi time TOIL outstanding at the time she left employment. This claim must be put through the statutory unlawful deduction from wages tests because the claim was issued whilst the employment was on-going. It cannot therefore be a breach of contract claim.[199]We have found as a fact that the claimant had no contractual entitlement to the payments upon the end of her employment. Put another way, even at the time the claim was issued, there were no wages properly payable in any case. The respondent never paid wages in respect of accrued but untaken flexi TOIL. The system operated in a way which meant the outstanding TOIL was taken in the form of time not worked but paid for. There was no mechanism for money to be paid in lieu of time off in lieu.[200]The claimant advanced no argument to counter those basic findings and conclusion in the hearing. In our judgment, the claimant has not established that the TOIL accrued was ‘wages’ which were ‘properly payable’. Consequently, there is no entitlement to be paid where there is no unlawful deduction.[201]This claim is dismissed. Overall disposal[202]None of the claims are well founded for the reasons set out above. The claims are all dismissed. Approved By: