Mrs H Toure v The Commissioners for HM Revenue and Customs: 2304064/2023

EMPLOYMENT TRIBUNALS

Case No 2304064/2023

Between

Mrs H ToureClaimant

The Commissioners for HM Revenue and CustomsRespondent

Before

Employment Judge Sudra

Mr. Kirk (instructed by Counsel) for respondent

Date 30 July 2025

JUDGMENT

[1]The unanimous decision of the Tribunal is that the Claimant’s complaints are not well founded and are dismissed. JUDGMENT

[2]The unanimous decision of the Tribunal is that the Claimant’s complaints of,(i) ‘Ordinary’ unfair dismissal is not well founded and is dismissed.

(ii) Wrongful dismissal is not well founded and is dismissed.

(iii) Notice pay is not well founded and is dismissed. Page 1 of 31

(iv) Harassment related to race, religion and disability is not well founded and is dismissed.

(v) Victimisation is not well founded and is dismissed.

REASONS

[1]These written reasons were requested by the Claimant following an oral judgment on 30th July 20205. The Claimant began Acas early conciliation on 21st July 2023 (‘Day A’) and was issued with an Acas early conciliation certificate on 26th July 2023 (‘Day B’). On 2nd August 2023 the Claimant presented her ET1 claim form. The Respondent defended the claims by way of an ET3 and Grounds of Response on 15th November 2023 and an amended Grounds of Response on 3rd April 2025.

The Issues

[2]The Claimant’s complaints are of:(i) ‘Ordinary’ unfair dismissal (s.98 Employment Rights Act 1996 (‘ERA’);

(ii) wrongful dismissal (notice pay);

(iii) harassment related to race, religion, and disability (s.26 Equality Act 2010 (‘EqA’); and

(iv) victimisation (s.27 EqA). The parties had agreed a final List of Issues which was appended to the Case Management Order of Employment Judge Heath [384] and is also included as an appendix to this judgment.

Preliminary Matters

[3]At the outset of the Hearing we discussed the List of Issues with both the Claimant and Respondent; they agreed that the List of Issues accurately captured the Claimant’s claims. Page 2 of 31

[4]The Tribunal also explored timetabling with the parties and was content that the matter would be completed within the allotted Hearing days. Interpreter

[5]The Claimant’s first language is French but she is highly proficient in English and confirmed that she did not require an interpreter. Indeed, the Claimant has attended several Preliminary Hearings and a previous nine-day Final Hearing without an interpreter. We checked that everybody understood each other so as to ensure a fair hearing and remained alert to any linguistic difficulties which may have resulted in an interpreter being required. No such difficulties arose. Reasonable Adjustments

[6]The Claimant requested that parties speak slowly and advised that she may require additional breaks. We confirmed that these adjustments would be made and encouraged parties to notify us if further adjustments were required. Amendment of Claim

[7]The Claimant raised two preliminary issues, one relating to a communication between the Respondent and Employment Judge Heath and the second regarding the Claimant’s application to amend her claim (made to Employment Judge Heath) at a Preliminary Hearing on 3rd and 4th March 2025. The Respondent had emailed information to Employment Judge Heath’s judicial email address (at his request, in the interests of expediency) and the Respondent, one presumes in haste, neglected to copy the Claimant in. We explained that this was an unfortunate oversight by the Respondent and it forwarded the email in question to the Claimant on the first day of this Hearing.

[8]In respect of the Claimant’s application to amend, we noted that Employment Judge Heath had dealt with it in great detail at annexe 1 of his Case Management Order [378] and bar any material change of circumstances, of Page 3 of 31 which there were none, we did not interfere with Employment Judge Heath’s decision and did not allow the Claimant’s renewed application to amend her claim.

List of Issues

[9]The Claimant stated that there was a mistake at paragraph 5.3.3 of the List of issues which states, ‘On 31 October 2022 the Claimant’s work laptop was suddenly disabled. She thinks it could have been Mr Brazier or IT but the Claimant was not sure. [Race and disability]’

[10]The Claimant confirmed that she did not intend to involve Mr. Brazier into this allegation and her complaint was against IT or ‘another third party.’ The Respondent did not object to amendment of the List of Issues in this respect. Therefore, paragraph 5.3.3 of the List of Issues has been amended to read, ‘On 31 October 2022 the Claimant’s work laptop was suddenly disabled. She thinks it could have been Mr Brazier or IT or another third party but the Claimant was not sure. [Race and disability]’

[11]All other matters contained within the List of Issues remain intact and without further amendment. Panel Composition

[12]On the morning of the second day, we discovered that both non-legal members were from the employer cohort. Unfortunately, there had been an innocuous listing error by the Tribunal administration. The parties were given three options: Firstly, we could proceed with a two-person panel; secondly, we could try to source an alternative non-legal member (which may cause delay); and finally, the Hearing could proceed with an Employment Judge sitting alone. Page 4 of 31

[13]The Respondent were content with options one and two and the Claimant preferred option one. Fortunately, we were able to find an available non-legal member (Ms. Khwaja) and we adjourned to enable her to read-in and informed the parties that we would commence with the Claimant’s evidence at the start of day three. Procedure and Documents

[14]We had before us: (a) An agreed Hearing bundle consisting of 1453 pages.

[15]We also had written witness statements and heard live evidence from: For the Claimant(i) The Claimant; For the Respondent

(ii) Graham Brazier;

(iii) Mark Gills; and

(iv) Bhavika Nayi.

[16]The Claimant and Respondent made oral and written closing submissions at the conclusion of the evidence.

[17]We notified the parties at the outset of the Hearing that we would only read documents that we were specifically referred to and would only read documents referred to in witness statements insofar as they were relevant. Relevant Findings of Fact

[18]The following findings of fact were reached by us, on a balance of probabilities, having considered all of the evidence given by witnesses during the Hearing, Page 5 of 31 including the documents referred to by them, and taking into account our assessment of the witness evidence.

[19]Only findings of fact relevant to the issues, and those necessary for us to determine, have been referred to in this judgment. It has not been necessary, and neither would it be proportionate, to determine each and every fact in dispute. We have not referred to every document we read and/or were taken to in the findings below but that does not mean it was not considered if it was referenced to in the witness statements/evidence and considered relevant. Employment and Background

[20]The Claimant was employed by the Respondent as a customer services consultant on 14th October 2019 and was contracted to work 42 hours per week. The Claimant’s employment terminated on 18th July 2023 when the Respondent dismissed her for gross misconduct. The Respondent is responsible for tax collection, compliance, and enforcement in the United Kingdom and has circa 65,000 staff.

[21]As is common in many contracts of employment, the Claimant’s employment contract contained a clause that encouraged staff to make use of their full leave allowance but made clear that staff could not insist on taking leave at a particular time.

[22]The Claimant is a French national of African origin and an adherent of the Muslim faith. She has the impairments of macroprolactinoma and asthma which the Respondent accepts are disabilities by virtue of s.6 of the Equality Act 2010 (‘EqA’). The Claimant also has the impairment of depression which the Respondent does not concede to constitute a disability under the EqA.

[23]The Claimant had previously submitted three claims against the Respondent (claim numbers 2301115/2021, 2303344/2021 and 2300506/2022 (‘the Page 6 of 31 previous claim’)) which were consolidated and heard at this Tribunal on 18th to 28th March 2024. A reserved Judgment was promulgated on 24th May 2024; 10 out of the 53 allegations the Claimant made were upheld. It was made clear to the parties that we were bound by the findings of the previous Tribunal and we would only be determining the complaints in the present claim and would not re-visit previously adjudicated matters.

[24]Whilst it was made clear to the parties that previously decided matters would not be re-examined there is some overlap. The previous Tribunal found, and the Respondent accepts, that the Claimant did the following protected acts:(i) Informal and formal complaints about discrimination of 2019;

(ii) meetings to discuss formal complaints of 2019;

(iii) formal and informal complaints about discrimination of 2020;

(iv) a grievance dated 11th November 2020;

(v) a refusal to withdraw her grievance when asked on 23rd November 2020;

(vi) raising a second grievance on 5th January 2021; and

(vii) raising the following Employment Tribunal claims:

(viii) 2301115/2021 of 16 March 2021;

(ix) 2303344/2021 of 09 August 2021; and

(x) 2300506/2022 of 11 February 2022.

[25]Therefore, we need not delve into the circumstances surrounding the aforementioned protected acts as they have been established. What remains for us to determine is if the acts at paragraph 6.4.1 to 6.4.4 of the List of Issues were indeed protected acts under s.27 of the EqA. Sickness Absence

[26]It is also, at this point, useful to note the periods of the Claimant’s sickness absence from work. During the period 27th August 2020 to 8th August 2022, the Claimant was absent from work due to sickness for a total of 181 days. On 27th Page 7 of 31 August, 23rd October 2020 and 25th and 26th February 2021, the Claimant was absent due to issues with her nervous system. On 2nd June, 30th June to 5th July 2021, and 6th July 2021 to 11th February 2022 the Claimant was absent for stress related matters. The Claimant was also absent with stress related issues on 18th February, 1st to 15th July, and 2nd to 8th August 2022. It is also the Claimant’s case that during April 2021 and February 2022 she was impaired by the ‘temporary disability’ of depression.

[27]On 18th December 2020, the Claimant first raised the issue of her computer system being hacked and completed a Security Incident Report. The Claimant was advised by Robert John (line manager) to contact IT for further investigation.

[28]Graham Brazier (higher officer) line-managed the Claimant from 1st June 2021 to 31st December 2022 (when Mr. Brazier retired). From July 2021 to February 2022, the Claimant was absent from work due to long-term sickness and annual leave. On 21st March 2022 Mr. Brazier spoke with the Claimant on the telephone to discuss her return to work. The Claimant became upset and emotional as she said she could not return to the office and wanted to workfrom-home. Mr. Brazier informed the Claimant that the Respondent’s ‘Balancing Home and Office Working’ policy was that staff could work-fromhome two-days a week, averaged over four weeks, unless the business agrees a greater portion of working-from-home (due to personal circumstances) and staff remain fully effective in their roles. The policy also states that where a staff member cannot ‘operate effectively safely and securely at home’ they must attend the office [764]. Mr. Brazier was concerned at the Claimant’s emotional response and advised her to visit her GP as he worried about her wellbeing. The next day the Claimant did not log-on for work, from home, and Mr. Brazier was unable to contact the Claimant via telephone. On 24th March 2022 the Claimant called Mr. Brazier and said that she had spoken with her GP but did not have a fit-note and did not think that going on sick leave was the way forward for her. Page 8 of 31

[29]Mr. Brazier asked the Claimant why she would not attend the office and she responded that she could not work with people who abused, made fun of, and did not respect her. Mr. Brazier asked the Claimant to return to work on 28th March 2022 and the Claimant stated that she would not. He explained to the Claimant that if she was not signed-off work sick and did not attend the office he would have to seek HR advice as the Claimant was absent from work without authorisation. To aid the Claimant, Mr. Brazier sent her a list of possible Civil Service jobs that she may wish to apply for as she did not want to return to the Respondent’s office; these were sent on 1st March and 7th April 2022.

[30]On 28th March 2022, the Claimant called Mr. Brazier and said that she was concerned that the Respondent, or the Civil Service, was monitoring her workissue laptop (‘laptop’). She explained that when she had returned home, her laptop was not in the same position as she had left it. Mr. Brazier assured the Claimant that the Respondent would not monitor her laptop and she should maybe speak with her landlord or the local constabulary.

[31]The Claimant again contacted Mr. Brazier on 28th April 2022 and informed him that ‘people were illegally entering her property when she was out’ and moving her laptop despite her landlord having changed the locks of her property. Mr. Brazier advised the Claimant that the Respondent would not enter her property or remotely access her laptop as they could not do so without the Claimant’s permission. The Claimant was once again advised to contact the police. On 3rd May 2022 a member of the Metropolitan Police Cyber Security Team left a message on Mr. Brazier’s mobile telephone. The message was that there was no evidence to suggest ‘hacking’ and that to give the Claimant peace of mind, it may be an idea to replace her laptop. The same day Mr. Brazier sent a message to the Respondent’s Security and Information Team relaying the Claimant’s concerns.

[32]On 9th May 2022 the Security and Information Team informed Mr. Brazier that after reviewing the Claimant’s concerns, they had found no evidence of hacking and that the Claimant’s laptop was fine to use and need not be replaced. Mr. Page 9 of 31 Brazier then spoke with the Claimant on 12th May 2022 regarding her return to work. The Claimant was still reluctant to work at the office as she would find it ‘difficult.’ Mr. Brazier explained that staff were required to work from the office at least three-days per week and if she refused to do this, formal action may be taken which could eventually lead to dismissal. The Claimant acknowledged this.

[33]Between 1st and 15th July 2022 the Claimant was signed off-work with stress. The Claimant was referred for an occupational health (‘OH’) assessment and was assessed by OH on 2nd August 2022. The OH practitioner opined that the Claimant was unfit for work and that ‘The only way she (the Claimant) could see herself returning to work in future, is if she could work from home in a different team. The drivers and triggers for her stress, anxiety and depression are ongoing and impacting on her mental health and wellbeing. There remain unresolved issues at work and until they are resolved, I can’t foresee a return to work.’

[34]Mr. Brazier was due to retire at the end of December 2022 and it was agreed that Mark Gills (operational team leader) would take-over as the Claimant’s linemanager. In preparation for the transition of line-management, Mr. Gills began taking on some aspects of managing the Claimant from around September 2022 and Mr. Brazier informed the Claimant of this on 9th September 2022. Mr. Brazier also informed the Claimant that she could return to the office and, for a period of three weeks, work on a different floor to the colleagues she did not want to encounter. The Claimant asked Mr. Brazier if he could guarantee she would not be treated ‘badly’ by the colleagues and Mr. Brazier assured her that whilst he could not provide a guarantee (as he could not control another’s actions) the Respondent would address any unacceptable behaviour should it arise.

[35]Mr. Gills spoke with the Claimant on 15th and 22nd October 2022 to keep-intouch due to the Claimant being on sick leave. During the conversations the Claimant told Mr. Gills that she was not comfortable with leaving her laptop at Page 10 of 31 home. As a solution, Mr. Gills offered a secure locker at the office for the Claimant to store her laptop; the Claimant rebuffed this offer. Security Incidents

[36]Between 19th and 21st October 2022, the Claimant raised three security incidents with the Respondent [514-518]. All three reports pertained to the same matter i.e. that her laptop had been, or was being, hacked into and that she had had multiple break-ins at her home. Mr. Brazier telephoned the Claimant regarding her security reports, on 31st October 2022, and the Claimant said she believed her laptop had been hacked as she could not save a document and she had informed IT of this.

[37]Due to the Claimant having raised three security incidents they were investigated by the Respondent. As all three incidents were very similar – if not identical – in nature the Respondent sensibly decided to deal with them simultaneously under one investigative process.

[38]The Claimant had completed a Security Incident Report (‘SIR’) on 21st October 2022 which consisted of an on-line standard form with pro-forma questions. The SIR would have been the report any employee of the Respondent would have completed and the questions were not tailored because the Claimant was completing the form. Two of the questions on the SIR, which the Claimant answered, were: ‘Is there any case ongoing? (Including appeals): Yes Are you aware of any media interest in this specific security incident?: No’ There were no questions on the SIR asking about ET claims or grievances or stating that break-ins are likely because of media interest.

[39]The Respondent’s Security Incident Team concluded from their investigation that as the laptop was not stolen and due to the nature of the complaints Page 11 of 31 (hacking) the situation was not a high-severity one and the recommended action was for the laptop to be re-activated. Mr. Gills updated the Security Incident Investigation record and the Claimant’s reports were closed on 21st October 2022. Return to Work

[40]Following a conversation between Mr. Gills and the Claimant on 11th November 2022, in respect of the Claimant returning to work in the office, Mr. Gills sent the Claimant a letter on 24th November 2022. Within the letter Mr. Gills formally instructed the Claimant to return to the office as of 1st December 2022 as per the Respondent’s Balancing Home and Office Working policy and the terms of the Claimant’s contract of employment. Mr. Gills explained that the Respondent is an office-based organisation and that her contract of employment was clear that her place of work was the office. Mr. Gills further explained to the Claimant that there were real benefits from working, cohesively, in the workplace.

[41]To support the Claimant’s return to the office Mr. Gills explained that the Respondent would permit the Claimant to work on an alternative floor for two months before a phased return to her substantive floor and assign a mentor to oversee training and provide any additional support. Mr. Gills explained to the Claimant that she had not worked from the office since 28th February 2022 and because she refused to do so, he had no alternative but to issue a formal instruction. It was made clear to the Claimant that if she did not return to the office on 1st December 2022 she could be committing misconduct and this could ultimately result in the termination of her employment.

[42]Also on 24th November 2022, Mr. Brazier telephoned the Claimant to assist her to re-activate her laptop. Mr. Brazier had been in contact with and received advice from Fergal Clarke (Chief Digital information Office (‘CDIO’) team member) who confirmed that the Claimant’s laptop was not compromised or suspended and that her password should be re-set to regain access to services. When Mr. Brazier asked the Claimant to re-set her password, upon CDIO Page 12 of 31 advice, she flatly refused. She accused the Respondent of setting her up and became cross. The Claimant stated that she had received a message on her laptop on 31st October 2022 stating that the workstation had been disabled. The message the Claimant had received was an automated message stating that there was no system fault but as the laptop had not been used regularly and not had the latest updates installed, the device had been disabled. The message advised the Claimant to return her laptop to a CDIO IT bar where a replacement would be provided. The Claimant concluded the conversation by informing Mr. Brazier that she would not be returning to the office on 1st December 2022 as instructed.

[43]The Claimant did not return to the office on 1st December 2022; in breach of a formal management instruction. However, the Claimant did call Mr. Brazier on the day she was supposed to return to work and stated that she had not received Mr. Gills’ letter of 24th November 2022. As Mr. Brazier was due to be on annual leave on 2nd December 2022 he told the claimant he would contact her again on 5th December 2022. The Claimant called Mr. Brazier and left a message for him on 8th December 2022 to confirm that she had received Mr. Gills’ letter. Mr. Brazier heard the Claimant’s message on his return from leave on 19th December 2022. Mr. Brazier retired from employment on 31st December 2022.

[44]On 9th December 2022 the Claimant called Dennis Gregory (site lead, debt management) regarding her laptop and he arranged for her to return it to him at 4.00pm that day. The Claimant duly attended at the appointed time and met with both Mr. Gregory and Mr. Gills and handed them her laptop. Mr. Gills told the Claimant he would order her a replacement laptop and inform her when it was ready for collection.

[45]The Claimant’s replacement laptop was ready for collection on 18th January 2023 and Mr. Gills telephoned the Claimant and said she could collect it the next day. The Claimant responded that it was not worth collecting the device as she wanted her dongle to be replaced. When Mr. Gills told the Claimant that Page 13 of 31 she could speak to IT about a dongle when she collected her laptop she further stated that as she was going on leave from 24th January 2023 there was little point in collecting the laptop. The Claimant also complained that she had no secure place to store her laptop so Mr. Gills said he would organise a locker but the Claimant terminated the call. The Claimant was being obstructive as she clearly did not want to do any work before her leave began. During another telephone call with the Claimant on 19th January 2023 Mr. Gills asked the Claimant to contact him when she returned from leave (on 27th February 2023) to arrange collection of her laptop.

[46]In the Claimant’s absence, Mr. Gills collected the replacement laptop from IT and secured it in a locked team cupboard in readiness for when the Claimant returned to work from leave. The Claimant did not return to work as anticipated, on 27th February 2023, and Mr. Gills telephoned her. The Claimant told Mr. Gills that she believed that she was on leave until 28th February 2023 so Mr. Gills asked her to collect the laptop on 1st March 2023. The Claimant did not confirm that she would collect the laptop but instead enquired about a replacement dongle as she alleged that she did not have access to Wi-Fi as ‘her street has had their internet hacked and it wasn’t working.’ Mr. Gills, as a solution, asked the Claimant to work from the office and she declined and also said that she would not collect the laptop due to security issues at home. Mr. Gills further told the Claimant that the last two days during which she was absent from work would be classified as being absent without leave and need to be accounted for. Upon hearing this the Claimant ended the call.

[47]The Claimant remained absent from work and Mr. Gills called her once again on 3rd March 2023. The Claimant told Mr. Gills that she could not work due to harassment allegations she had made against the Respondent and she could not use the laptop at home due to not having access to Wi-Fi. The Claimant also informed Mr. Gills, for the first time, that her mother had passed away on 31st January 2023 and enquired about taking special leave so she could take a month-off to travel to the Republic of Côte d'Ivoire. Mr. Gills advised that special Page 14 of 31 leave is granted according to individual circumstances and that she should check the policy before making an application.

[48]The Respondent allow for a maximum of five-days special leave in particular circumstances including bereavement. Special leave is discretionary and employees do not have a right to special leave.

[49]As the Claimant remained on unauthorised absence and was not doing work for the Respondent, on 7th March 2023 Mr. Gills informed HR and asked that the Claimant’s pay be stopped. Mr. Gills confirmed this in a letter to the Claimant and informed her that her absence would be referred to a Senior Manager to consider if her behaviour amounted to gross misconduct and that the process could result in the termination of her employment. Mr. Gills also provided the Claimant with details of a welfare support helpline. The Claimant confirmed receipt of the letter on 9th March 2023 in a telephone call with Mr. Gills and said that she was travelling abroad to tend to matters regarding her mother’s demise and understood that her absence had not been authorised.

[50]Due to the Claimant’s continued unauthorised absence from work Mr. Gills escalated the matter to the Respondent’s Expert Advice Service (‘EAS’) to progress.

[51]On 28th March 2023 Bhavika Nayi (compliance case worker) was appointed as the decision manager in respect of the Claimant’s unauthorised absence and Lisa Richards (HR Caseworker with EAS) wrote to Ms. Nayi, on 30th March 2023, informing her what was required of her, what process should be followed, and attached a manager’s summary for her information.

[52]Mr. Gills wrote to the Claimant on 31st March 2023 to inform her that her continued unauthorised absence constituted gross misconduct and that the matter had been referred to a decision maker to arrange a disciplinary hearing under the Respondent’s procedures. Page 15 of 31

[53]Having spoken with Ms. Richards and after having read the relevant documents and policies, Ms. Nayi was sent Terms of Reference by Ms. Richards on 18th April 2023. Ms. Nayi (who was based in Nottingham) telephoned the Claimant on 18th April 2023 to discuss in which format to continue the process as the Claimant did not have her work laptop. The Claimant told Ms. Nayi that she did not want to disclose her personal email address to her so it was agreed that the only viable method to action the process was via telephone. On 21st April 2023 the Claimant telephoned Ms. Nayi and informed her that she had been unable to secure the assistance of a trade union representative but wanted to proceed to an investigation meeting regardless. Ms. Nayi acceded to the Claimant’s request and agreed to hold an investigation meeting on 26th April 2032. Investigation Meeting

[54]On 24th April 2023 Ms. Nayi wrote to the Claimant and explained that she would investigate the allegation that she had been ‘absent without authority since 27/02/2023 and have not provided a satisfactory explanation or ‘fit note’ in support of this absence.’ Ms. Nayi specifically stated that if gross misconduct were to be established, all sanctions including summary dismissal without notice pay were a possibility. Ms. Nayi informed the Claimant that the investigation meeting would take place via telephone and that the investigation itself may take three weeks to conclude. The Respondent’s ‘Upholding Our Standards of Conduct’ policy states that: ‘Conϐidentiality You should not talk to other colleagues/customers about the details being considered as it could jeopardise the investigation. If you do speak to others, that might amount to a breach of our standards, resulting in action being taken under the policy. You can however seek appropriate support in the Where you can get further help section and you are encouraged to do so.’ Therefore, at the conclusion of her letter Ms. Nayi rightly stated: Page 16 of 31 ‘Please don’t talk to other colleagues/customers beyond this. If you do, it may amount to a breach of our standards.’

[55]As had been arranged, Ms. Nayi telephoned the Claimant on 26th April 2023 to begin the investigation meeting. Ms. Nayi discussed the allegations and circumstances of the unauthorised absence with the Claimant and asked her relevant questions. The Claimant had ample opportunity to explain her version of events to Ms. Nayi and the Claimant also told Ms. Nayi that a grievance she had raised in 2021 had not been upheld and that the main reason for not returning to work were her on-going Employment Tribunal claims against the Respondent.

[56]On 16th May 2023, Ms. Nayi placed the notes of their investigation meeting into a self-adhesive envelope, closed it, and handed it to the post room to be sent to the Claimant via Royal Mail recorded delivery post. The next day, the Claimant left a voicemail message for Ms. Nayi and said that the envelope with the investigation meeting notes had arrived to her unsealed and that it was ‘kind of weird.’

[57]Point 8 of the investigation meeting notes sent to the Claimant on 16th May 2023 stated ‘BN advised that the meeting was confidential and should not be recorded or discussed. Any breaches of this confidentiality could result in misconduct action.’ There was nothing untoward about Ms. Nayi reminding the Claimant of her duties of confidentiality.

[58]On 25th May 2023 Ms. Nayi tried to telephone the Claimant at 14.00pm – as scheduled – but was unable to place the call as the Claimant was in Côte d'Ivoire and Ms. Nayi’s telephone system did not allow international calls to be made. As the Claimant had not heard from Ms. Nayi she successfully called her. Ms. Nayi explained that she would be on annual leave from 25th May to 4th June 2023 and therefore, there would be a delay in the disciplinary process. Ms. Nayi arranged to call the Claimant (on a UK telephone number) on 5th June 2023. Page 17 of 31

[59]Ms. Nayi telephoned the Claimant on 5th June 2023 but it became apparent that although she had rung a UK mobile number the Claimant was still abroad. Their conversation was a limited one as there was much background noise at the Claimant’s end and the connection was lost. Ms. Nayi tried to call the Claimant back but was unsuccessful in being connected.

[60]On 29th June 2023 Ms. Nayi held her third disciplinary meeting with the Claimant. The Claimant complained to Ms. Nayi about receiving notes in an unsealed envelope and Ms. Nayi explained that she had sealed the envelope so could not speculate as to how it became unsealed. Ms. Nayi reminded the Claimant that she was only sending correspondence to the Claimant via post as the Claimant had refused to share her email address with her; there was no other method of sending the Claimant a document.

[61]During the meeting the Claimant informed Ms. Nayi that she had bought her own dongle but not claimed her outlay from the Respondent. When Ms. Nayi asked the Claimant if she would have been happy to resume work if the Respondent had provided a dongle the Claimant said that the dongle was not the sole issue but that she had lost trust in the Respondent as she felt unsafe returning to work and because the Respondent had not investigated the issues she was experiencing with her neighbours. The Claimant failed to appreciate that the Respondent had no duty or standing to intervene in the Claimant’s neighbourhood disputes. The Claimant stated that she would only return to work if she was moved to a different department or location and then, only if the Respondent paid her re-location costs. The meeting concluded with Ms. Nayi telling the Claimant that she would provide the Claimant with her decision within five-working days.

[62]Ms. Nayi wrote to the Respondent on 18th July 2023 and informed her that the allegation against her was proven and after consideration of which sanction to apply, summary dismissal was the most appropriate in the circumstances. Due to the history of the Respondent’s absence, her unwillingness to meaningfully engage with the Respondent or carry out reasonable management instructions, Page 18 of 31 and her obstruction of any suggested way forward the Respondent did not have any faith that the Claimant would return to work or fulfil the requirements of her role as required.

[63]Unauthorised absence from work was an act of gross misconduct under the Respondent’s policies and summary dismissal was an appropriate sanction available to it. The Claimant did not appeal her dismissal notwithstanding that there was no credible reason preventing her from doing so. Relevant Law Time limits for EqA claims

Relevant Law

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

[65]In terms of case law: Page 19 of 31 i. for the “conduct extending over a period” to be relevant, something that is found to have been the relevant discrimination must be in time for it to render the out of time claims justiciable by virtue of “conduct extending over a period” (South Western Ambulance Service NHS Foundation Trust v King UEAT/0056/19 at [33]); ii. with respect to the just and equitable extension arguments, the Tribunal is respectfully reminded that: 1. it is for the Claimant to show discretion to extend time should be exercised and that there is no presumption to exercise the discretion – extension is the exception not the rule: Robertson v Bexley Community Centre1

[2003] EWCA Civ 576

[2003] IRLR 434

at [25] 2. it is always necessary for tribunals, when exercising their discretion, to identify the cause of the complaint’s failure to bring the claim in time: Accurist Watches Ltd v Wadher2 (

EAT/102/09

) at [15] 3. moreover, as the purpose of time bars is to ensure finality and certainty, it is difficult to see how a claimant can discharge such a burden of showing that it is just and equitable to extend time if either(a) he/she does not explain the delay or

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

UKEAT/0180/16

at [31].3 1 Indeed prior to this case the EAT already made clear that just because a fair trial is sƟll possible it does not automaƟcally to lead Ɵme being extended: Newnham v Transco plc

EAT/125/00

EAT/126/00

EAT/844/00

at [29] 2 Langstaﬀ J, without making any citaƟon or reference to this case, equally reaches the same conclusion in Abertawe Bro Morgannwg University Local Health Board v Morgan UKEAT//0305/13 at [52] also stated that “'The ﬁrst quesƟon in deciding whether to extend Ɵme is why it is that the primary Ɵme limit has not been met…” 3 Indeed, the Court of Appeal in Abertawe Bro Morgannwg University Local Health Board v Morgan

[2018] EWCA Civ 640

;

[2018] ICR 1194

accepted that whilst the test is broad with no speciﬁc list of factors to be considered, with lack of a good reason for delay not operaƟng as an absolute bar, two factors that are always relevant: the reason for the delay and any prejudice caused to the other parƟes (at [18]-[20], and [24]-[26]). Page 20 of 31 Unfair Dismissal

[66]This important right is set out in s.94 Employment Rights Act 1996 (‘ERA’), and by s.98, the employer has first to show a fair reason for the dismissal, in this case conduct. If that is shown, then the test of fairness under s.98(4) depends in part on the respondent’s size and administrative resources. The Respondent is clearly a large organisation and so a very high standard of fairness is to be expected.

[67]The question in unfair dismissal cases is not therefore whether the employee was guilty of the misconduct, but - broadly speaking – whether it was reasonable of the employer to conclude that he was, and that he should be dismissed as a result.

[68]As is well established from the case of British Home Stores Ltd v Burchell

[1978] ICR 303

and others that question can be broken down further as follows:(a) Was there a genuine belief on the part of the decision-maker that the Claimant did what was alleged?

(b) Was that belief reached on reasonable grounds?

(d) Was the decision to dismiss within the range of reasonable responses open to an employer in the circumstances?

[69]This ‘range of reasonable responses’ test (sometimes referred to as the ‘band of reasonable responses’) reflects the fact that whereas one employer might reasonably take one view, another might with equal reason take another. Tribunals are cautioned very strictly against substituting their view of the seriousness of an offence for that of the decision maker.

[70]That applies not just to the reasonableness of the decision to dismiss but also to the process followed in coming to that conclusion. If a failing is identified in the disciplinary process it is necessary to ask whether the approach taken was outside that range, i.e. whether it complied with the objective standards of the reasonable employer: Sainsbury's Supermarkets Ltd v Hitt

[2003] ICR 111

, Page 21 of 31 Gherbrehiwt v. Wilson James Ltd

[2025] EAT 50

[71]However, it is well established that where an employee admits an act of gross misconduct and the facts are not in dispute, it may not be necessary to carry out a full-blown investigation at all: Boys and Girls Welfare Society v Macdonald . The Employment Appeal Tribunal in that case said that it was not always necessary to apply the test in Burchell where there was no real conflict on the facts.

[72]Procedural fairness is nevertheless an important aspect and in considering it tribunals are required to take into account the guidance in the ACAS Code of Practice for Disciplinary and Grievance Procedures (2015). Harassment

[73]Section 26(1) of the Equality Act 2010 provides: “A person(a) (A) harasses another

(b) (B) if (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.”

[74]A similar causation test applies to claims under section 26 as described above to claims under section 13. The unwanted conduct must be shown ‘to be related’ to the relevant protected characteristic. The shifting burden of proof rules set out in section 136 of the Act can be helpful in considering this question. The burden is on the claimant to establish, on the balance of probabilities, facts that in the absence of an adequate explanation from the respondent, show she has been subjected to unwanted conduct related to the relevant characteristic. If she succeeds, the burden transfers to the Page 22 of 31 Respondent to prove otherwise.

[75]Harassment does not have to be deliberate to be unlawful. If A's unwanted conduct (related to the relevant protected characteristic) was deliberate and is shown to have had the purpose of violating B's dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for B, the definition of harassment is made out. There is no need to consider the effect of the unwanted conduct.

[76]If the conduct was not deliberate, it may still constitute unlawful harassment. In deciding whether conduct has the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for B, we must consider the factors set out in section 26(4), namely:(a) the perception of B;

(b) the other circumstances of the case;

(c) whether it is reasonable for the conduct to have that affect. The shifting burden of proof rules can be also be helpful in considering the question as to whether unwanted conduct was deliberate.

[77]In Richmond Pharmacology v. Dhaliwal

[2009] IRLR 336

, the EAT held that it would normally be a 'healthy discipline' for Tribunals to address each factor separately and ensure that factual findings are made on each of them.

[78]In so far as the second of those matters is concerned, guidance was given by the EAT in Betsi Cadwaladr University Health Board v. Hughes [2014] 2 WLUK 991; per Langstaff P: ‘10. Next, it was pointed out by Elias LJ in the case of Grant v. HM Land Registry

[2011] EWCA Civ 769

that the words “violating dignity”, “intimidating, hostile, degrading, humiliating, offensive” are significant words. As he said: Page 23 of 31 'Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment.” 11. Exactly the same point was made by Underhill P in Richmond Pharmacology at paragraph 22: “..not every racially slanted adverse comment or conduct may constitute the violation of a person's dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase.”

[79]Consideration should also be given at this stage to the reasonableness of the effect. The test in this regard has both subjective and objective elements. The Tribunal is to look at the effect of the conduct from the claimant's point of view, but must also ask whether it was reasonable of the claimant to consider that conduct had that requisite effect (Dhaliwal). The context of the conduct in question is relevant to all stages of the test. Victimisation 79. The test under section 27 Equality Act is as follows:(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.

(2) Each of the following is a protected act— Page 24 of 31 (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act;… (d) making an allegation (whether or not express) that A or another person has contravened this Act. Conclusions and Analysis Credibility of Evidence

[80]We find that the Claimant’s evidence was well intended but not straight forward. Frequently during cross-examination she did not answer the question asked but proceeded to answer a question she wanted to answer. We also found that the Claimant’s oral evidence revealed that she was hyper-sensitive or unduly paranoid about the Respondent. She had a tendency to spin innocuous acts into something more sinister when there was little, or in most instances no, evidence for her beliefs. The Claimant was unable in her evidence, or when cross-examining the Respondent’s witnesses, to raise a prima facie case for the Respondent’s alleged acts being related to her protected. Equally, the Claimant was unable to link alleged detriments to purported protected acts.

[81]We found the Respondent’s witnesses’ evidence to be credible. Where there was a dispute, we preferred the evidence of the Respondent’s witnesses. Disability

[82]There was no medical evidence before us to support the Claimant’s contention that she is disabled under s.6 EqA with depression. Whilst we accept that the Claimant’s OH report of 2nd August 2022 mentions that there may be some Page 25 of 31 evidence that the Claimant is disabled with depression, the question is a legal one which needs evidence to support the assertion and the onus is on a Claimant to establish disability. The Claimant herself described her depression as ‘temporary’ and it was said to have lasted some eight months. We, of course, accept that the Claimant is disabled with impairments of prolactinoma and asthma. Unfair Dismissal

[83]It is clear from the evidence before us that:(a) There was a genuine belief on the part of the Respondent’s decisionmaker that the Claimant did what was alleged i.e. absent herself from work without authorisation.

(b) That belief was reached on reasonable grounds as it is undisputed by the Claimant that she had no authorisation for her absence and was aware that such behaviour could be classed as gross misconduct with the potential sanction of dismissal.

(d) The decision to dismiss was within the range of reasonable responses open to an employer in the circumstances so were mindful not to substitute our view with that of the Respondent. Therefore, this allegation is not made out and fails. Wrongful Dismissal

[84]The Claimant was dismissed for gross misconduct and not entitled to PILON or notice pay and this allegation fails. Page 26 of 31 Harassment Related to Race, Religion, and Disability

[85]Having considered the shifting burden of proof rules set out in s.136 EqA the burden is on the Claimant to establish, on the balance of probabilities, facts that in the absence of an adequate explanation from the Respondent, show she has been subjected to unwanted conduct related to the relevant characteristic. We do not find that the Claimant has discharged the burden and therefore, the burden of proof has not passed to the Respondent in respect of the Claimant’s allegations under this head of claim.86. 5.3.14 The evidence we have heard and read shows that the Claimant’s security incidents were closed after they had been investigated; all three reports had been dealt with as a whole. The Respondent found after investigating the Claimant’s complaints that there was no interference with, or hacking in to, the Claimant’s work account. This allegation is not well founded and is dismissed.

87. 5.3.2 This allegation is factually incorrect. The Respondent’s online security incident form did not ask if an Employment Tribunal claim or grievance is ongoing or state that break-ins are likely because of media interest. There was no unwanted conduct and the pro-forma questions had no nexus to the Claimant’s race, religion, or disability. This allegation is not well founded and is

88. 5.3.3 The Claimant’s laptop was disabled but not by IT or a third party but because of inactivity by the Claimant. Therefore, the Respondent could not have harassed the Claimant because of an action which was done by the Claimant herself. This allegation is not well founded and is dismissed.

89. 5.3.4 and 5.3.5 There is no evidence that Mr. Brazier denied that the Claimant’s laptop was disabled or that hacking would only relate to her personal information. We accept his evidence over the Claimant’s. This allegation is not well founded and is dismissed. 4 Using the numbering from the List of Issues. Page 27 of 31

90. 5.3.6 The sole reason the Claimant was left without a working laptop was due to her inactivity and refusal to re-set her password or attend the IT bar to resolve the issue. The Claimant did not make any reasonable attempt to acquire a working laptop which meant that during 31st October 2022 and 9th January 2023 she did no work either. This allegation is not well founded and is dismissed.

91. 5.3.7 Mr. Gills acted entirely properly in collecting a replacement laptop for the Claimant from IT and storing it in a locked team cupboard. Mr. Gills did not need the Claimant’s agreement; it was not her property and she had no rights of ownership. This allegation is not well founded and is dismissed.

92. 5.3.8 The evidence establishes that the Claimant was told that the Respondent no longer provided dongles to staff post the COVID-19 restrictions. The Claimant was not singled-out and merely stating that a dongle would not be provided is not harassing conduct. This allegation is not well founded and is

93. 5.3.9 We have accepted that Ms. Nayi sealed the envelope sent to the Claimant containing the disciplinary hearing notes. We also accepted that by the time the Claimant possessed the envelope it was unsealed. There are a multitude of reason for the envelope becoming unsealed, (weak adhesive, rough handling by postal staff, interference by neighbours) and none of them constitute harassment by the Respondent. This allegation is not well founded and is

94. 5.3.10 Ms. Nayi did remined the Claimant about the duty of confidentiality and it was entirely appropriate for her to do so. There was no excessive repeating of the duty to the Claimant and Ms. Nayi’s action was not harassment. This

95. 5.3.11 Ms. Nayi informing the Claimant that there would be a delay in making her decision was helpful and courteous. There was no sinister reason for the delay as Ms. Nayi told the Claimant that she would be on annual leave. Page 28 of 31 Updating an employee to a delay is not harassment but proper conduct. This

96. 5.3.12 Ms. Nayi simply could not dial international numbers. It was not the case that she refused to continue with a telephone call and the fact that there are sometimes connectivity or quality issues when speaking on a telephone, to a person on another continent, is a banal fact. There was no refusal by Ms. Nayi to continue with a call and she did not harass the Claimant. This allegation is not well founded and is dismissed.

97. 5.3.13 Everything stated in this allegation happened but nothing about what happened was harassment. Ms. Nayi had asked for the Claimant’s email address and she flatly refused to provide it. Ms. Nayi was stating a fact. This

98. 5.3.14 Ms. Nayi was not remiss in her duty to contact the Claimant or respond to the Claimant’s telephone calls when she was able to. The fact that the Claimant herself had imposed restrictions on methods of communication meant that telephone calls may have been missed by Ms. Nayi but this does not amount to ignoring the Claimant’s calls and whenever a message was left for Ms. Nayi she diligently transcribed it in an email for her record. We accept that it was difficult for Ms. Nayi to maintain a continuous line of communication with the Claimant as she was abroad and as she was denied an email address with which to contact the Claimant. This allegation is not well founded and is

99. 5.3.15 This allegation has been dealt with under our findings on unfair dismissal. Whilst the Claimant may have been shocked at being dismissed as she believed the Respondent would not take such a step, it was not abrupt or unfair. The Claimant always knew dismissal was a possibility due to her unauthorised absence. This allegation is not well founded and is dismissed. Page 29 of 31

100. 5.3.16 Ms. Nayi considered Mr. Brazier’s documents from October 2022 as she well should have. That is what an attentive investigating officer or decision-maker does. This is distinct from relying on Mr. Brazier’s documents as the reason to dismiss the Claimant. Ms. Nayi acted entirely appropriately and her consideration of relevant documents was not harassment. This Protected Acts

101. 6.4.1, 6.4.2, 6.4.3 were not protected acts. Whilst the Claimant may have used words such as harassment, grievance, ongoing investigation, she did not make allegations of discrimination or a breach of the EqA 2010.

102. 6.4.3 It was undisputed by the Respondent that the Claimant’s three previous Employment Tribunal claims were protected acts. Victimisation

103. The allegations at 6.6.1, and 6.6.6-6.6.10, have been dealt with in our decision on the harassment allegations.

104. The Claimant’s victimisation allegations fail.

105. For these reasons the Claimant’s claim fails and stands dismissed.