Ms N Fernandez v Guy's and St Thomas' NHS Foundation Trust: 2304390/2023
EMPLOYMENT TRIBUNALS
Case No 2304390/2023
Between
Ms N FernandezClaimantGuy's and St Thomas' NHS Foundation TrustRespondent
Before
Employment Judge Fredericks-BowyerMs A Chute (instructed by Counsel) for claimantMs S Firth (instructed by Counsel) for respondentDate 19 January 2026
JUDGMENT
[1]The claimant’s complaint of constructive dismissal is not well founded and is dismissed.[2]The claimant’s claims of indirect discrimination related to age and/or sex are not well founded and are dismissed.[3]The claimant’s claims of harassment related to age and/or sex are not well founded and are dismissed.[4]The respondent concedes that it failed to pay the claimant in respect of accrued but untaken holiday. Remedy is to be determined at a subsequent hearing if not agreed between the parties.[5]All other aspects of the claimant’s unlawful deduction from wages claim and breach of contract claim are dismissed. 1 of 42
REASONS
[1]This is our reserved judgment following the trial of this case. The events of the case took place against the backdrop of the Government response to the Covid-19 pandemic and, in particular, its decisions around vaccines against the condition. The claimant worked with clinically vulnerable patients as a perfusionist. She was in the group which would have been caught by any stipulation for front line healthcare workers to be vaccinated as a condition of working.[2]This case was initially framed with a human rights element, with an accusation that any requirement for the claimant to be vaccinated as a condition of working was a breach of her Article 8 human rights which gave rise to a repudiatory breach of contract. This argument was withdrawn on the first day of the hearing. The allegations carried forward in the hearing centred around harassment and discrimination around the claimant’s age (putting herself in an 18-44 year old group), and the fact that she is a woman. These were relevant because she was, at the time, attempting to become pregnant, and she was concerned that the vaccines on offer were not approved for use with pregnant women.[3]All of our findings of fact and conclusions 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. Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 19 March 2023 may not have been brought in time. 4.1.2. Were the discrimination and harassment complaints made within the time limit in section 123 Equality Act 2010? The Tribunal will decide: 4.1.2.1. was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates? 4.1.2.2. If not, was there conduct extending over a period? 4.1.2.3. If so, was the claim made to the Tribunal within three months (plus the early conciliation) of the end of the period? 4.1.2.4. If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide: 4.1.2.4.1. Why were the complaints not made to the Tribunal in time? 2 of 42 4.1.2.4.2. In any event, is it just and equitable in all the circumstances to extend time? 4.2. Unfair dismissal 4.2.1. Was the claimant dismissed? 4.2.2. Did the respondent do the following things? 4.2.2.1. Harass the claimant as alleged below? 4.2.2.2. Fail to adequately respond to the claimant’s grievances? 4.2.3. Were these breaches of contract? Was the breach a fundamental one? 4.2.4. Did the claimant resign in response to the breach? 4.2.5. Did the claimant resign in response (or partly in response) to that breach? 4.3. Indirect discrimination related to age and/or sex 4.3.1. The claimant identifies as a woman. 4.3.2. The claimant [43] is in the 18-44 age bracket and compares herself to those who are aged 45 and older. 4.3.3. Did the respondent have the following PCP? 4.3.3.1. Requiring all clinical staff to be vaccinated against Covid-19. 4.3.4. Did the respondent apply the PCP to the claimant? 4.3.5. Did the respondent apply the PCP to men or would it have done so? 4.3.6. Did the respondent apply the PCP to clinical staff aged 45 and over or would it have done so? 4.3.7. Did the PCP put women at a particular disadvantage when compared to men? 4.3.8. Did the PCP put clinical staff aged 18-44 at a particular disadvantage when compared with those aged 45 or older? 4.3.9. Did the PCP put the claimant at those particular disadvantages? 4.3.10. Was the PCP a proportionate means of achieving a legitimate aim? The respondent says that its aims were – 4.3.10.1. Protecting the welfare of the respondent patients, service users and staff; 4.3.10.2. Compliance with VCOD Regulations; 3 of 42 4.3.10.3. Compliance with the guidance “Covid-19 medical exemptions: proving you are unable to get vaccinated” (“Guidance”); 4.3.10.4. Compliance with the NHS England Guidance. 4.3.11. The Tribunal will decide in particular – 4.3.11.1. Was the PCP an appropriate and reasonably necessary way to achieve those aims; 4.3.11.2. Could something less discriminatory have been done instead; 4.3.11.3. How should the needs of the claimant and the respondent be balanced? 4.4. Harassment related to age and/or sex 4.4.1. Did the respondent do the following things – 4.4.1.1. 12 January 2022 – Robin Jones (RJ) pressuring the claimant to be vaccinated and threatening the claimant’s job if she continued to refuse; 4.4.1.2. In or around January 2022, RJ informing the claimant that: 4.4.1.2.1. The respondent had issues with her vaccination status; 4.4.1.2.2. She was not a priority due to her vaccination status, with other more junior members of staff being prioritised; 4.4.1.2.3. She posed a risk to the department and she was throwing away her career; 4.4.1.3. In or around January 2022, RJ informing the claimant’s dissertation tutor that she was throwing away her career by not getting the vaccination; 4.4.1.4. February – March 2022, the respondent failing to allocate on call work to her due to her vaccination status causing the claimant financial loss of around £200; 4.4.1.5. The respondent denying evidence of bullying and harassing behaviour, during the grievance procedures; 4.4.1.6. RJ explicitly denying that the conversations at 4.4.1.2 took place; 4.4.1.7. The respondent not reflecting that the claimant was offered redeployment as a nurse at the long-term sickness meeting on 23 March 2023, in the relevant outcome letter; 4.4.1.8. 8 May 2023 – the respondent rejecting the claimant’s claim for NHS Injury Allowance based on misinformation provided by RJ. 4 of 42 4.4.1.9. If so, was that unwanted conduct? 4.4.1.10. Did it relate to age? 4.4.1.11. Did it relate to sex? 4.4.1.12. Did the conduct have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant? 4.4.1.13. If not, did it have that effect? Was it reasonable in all the circumstances for it to have the effect, if so?
The hearing
[5]The claimant was represented by Ms Chute of Counsel, and gave evidence in support of her own claim. It appears the claimant wrote her own statement, and it contained information which stretched far beyond the remit of the claim and the issues in the case. There was also a great deal of comment and argument in the witness statement. We have overlooked the sections or sentences of the witness statement which are arguments or submissions rather than evidence.[6]The respondent was represented by Ms Firth, and called evidence from:- 6.1. Rosie Batty (former General Manager of the Cardiovascular Department at the respondent); 6.2. Ben Falk (Director of Operations at the respondent); and 6.3. Luke Blair (Head of Communications at the respondent).[7]We also had a sworn witness statement from Professor David Snashall, Consultant Occupational Health Physician at the respondent. He was not ultimately called to give evidence because the allegations involving him were withdrawn at the outset of the hearing. The claimant also withdrew an allegation in respect of human rights and breach of contract, and a claim around not being referred for an injury allowance.[8]There was an agreed bundle of documents which ran to 904 pages. Page references in this judgment are references to pages of that bundle. There were also additional documents disclosed during the course of the hearing, which if referred to in this judgment are referred to by description. There were some preliminary points about the list of issues and, in particular, whether there is a personal injury claim in respect of remedy. As it happens, there is no remedy for any claim which might bring forth a personal injury remedy.[9]There was not sufficient time, in the hearing, to hear closing submissions from the parties. Consequently, as both sides were represented, we directed that written submissions be filed in the case. At the time of our deliberations, we had access to written submissions from the claimant (39 pages) and the respondent (40 pages). 5 of 42[10]The claimant withdrew all other breach of contract wages related claims other than the holiday pay claim conceded by the respondent. The scope of the constructive dismissal claim[11]During the hearing, it emerged that there was a difference of opinion between the parties about the constructive dismissal claim, and what allegations formed part of the claim. The respondent had read the ET1 and claim form in the same way the Tribunal had, and so Ms Firth’s narrower cross examination of the claimant did not prompt any issues from the Tribunal. Ms Chute interpreted the claim in a much broader sense, seeking to attack each and every aspect of the grievance process. This is partly why, in our view, the time estimate for the trial was too short. We consider that the case management judge also read the constructive dismissal claim narrowly. The problem arose only when the claimant’s cross examination had finished, and when Ms Chute began asking the respondent witnesses questions.[12]The issue posed an unsatisfactory problem, because Ms Firth had cross examined on a narrow understanding and was only alerted to the possibility the claim was broader than she had understood when the cross examination had finished. There was no time to address us on the point in the hearing, and so each party has expended significant effort in written submissions to persuade us to their view.[13]The problematic issue is, in the context of fundamental breach of contract, whether the respondent did fail “to adequately respond to the claimant’s grievances”. This issue was adopted at the case management hearing on 3 April 2024 before Employment Judge Rea. It is vaguely phrased, but that is not a problem or a criticism because the claim being considered is what is pleaded. For that reason, we read the statement of claim carefully when we saw the list of issues to understand what it was being said was inadequately responded to.[14]The statement of claim was drafted by the claimant’s former solicitor, Philip Hyland, who was dis-instructed at some point between the Judge Rae hearing and this final hearing. The statement of claim is brief (pages 14 to 20). The general thrust of the claim in the statement of claim is about anti-Covid-19 measures. An anti-vaccination undertone runs through the document, although this is not a sentiment which we consider the claimant carried in the hearing itself.[15]The first mention of the claimant’s grievances was at paragraph 5 of the statement of claim (page 15):- “The promotion promised earlier in the year did not materialise. A grievance procedure was raised as a result.”[16]Paragraph 8 reads (page 15):- “Three grievances were raised by the claimant stating how her promotion had been delayed and the harassment she experienced. At no stage was the claimant’s issues surrounding fertility and the vaccine addressed or seriously considered.”[17]Paragraph 9 (page 15):- 6 of 42 “The claimant served one months’ notice on the respondent on 14 April 2023 in response to the bullying, harassing behaviour suffered, and the failure of the grievance procedure to address the issues.”[18]Paragraph 28(iv) (page 20) then pleads constructive dismissal stating that the resignation was in response to “the failure to adequately respond to the grievances”. We need to decide ‘what’ failure “the failure” is.[19]In closing submissions, the claimant submits that she raised no less than 106 separate complaints in the grievance processes “most of which” it is submitted were never addressed. The submission appears to be that all 106 issues were part of the claim and that each should be examined as a matter of fact. We consider that approach to be disproportionate and not an accurate reflection of what the claim was intended to be. If that was the case, then we consider it extremely unlikely that anyone could have considered there was enough time in the hearing for those issues to be examined. Mr Hyland would surely have mentioned this problem, shoehorning 106 issues into a 5 day hearing alongside everything else plus the issues which were ultimately withdrawn.[20]In our view, the ‘failure’ within the scope of the claim is the grievance process – 20.1. not addressing or taking seriously the claimant’s issues surrounding fertility and the vaccine; and 20.2. not addressing the issues of bullying or harassing behaviour suffered by the claimant.[21]What this means is that we had decided after the hearing that the constructive dismissal claim had a wider scope than the respondent had envisaged. Next, we needed to decide whether the respondent was put to any prejudice as a result of that, which meant that the parties needed to come back to us (or even a new panel) in order to run evidence and arguments about the claim again. In our judgment, the respondent would be prejudiced in that way if we found the constructive dismissal complaint to be well founded.[22]Ultimately, whatever alleged breach the claimant relied upon, we considered the claimant affirmed the contract prior to her resignation through her pursuit of redeployment and her continued pursuit of injury allowance, a benefit only open to NHS employees and only open to the claimant by continuance of her employment contract. She did not, in our view, therefore act in a way which was consistent with accepting any repudiatory breach of contract. This means that there is no need for the parties to return because neither party is prejudiced by our resolution of the disagreement over what the constructive dismissal claim is actually about.
Findings of fact
[23]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. The findings below are the relevant facts in relation to the 7 of 42 issues in the case. We heard and read a broad array of evidence which was not about those issues, and we do not find facts about those. The claimant[24]The claimant is a woman aged around 43 at the time to which the claim relates. From early 2021 and throughout the subsequent time period, she was attempting to conceive a child with her husband. During the time, she was pregnant at least once and suffered at least one miscarriage. The claimant’s employment to proposal for mandatory vaccinations[25]The claimant has been a registered nurse since July 2000. She began work at the respondent as a Senior Peri-operative and Critical Care Nurse on 13 August 2018. On 22 July 2019, the claimant was offered a role as a Trainee Perfusionist, a fixed term role with the end date 31 October 2021 (page 105). The post was expressed to be a Band 5 role and a ‘promotion’ (page 106) and the pay was £31,464.[26]The claimant accepted the role, although this was in truth a reduction in her pay. She started the role on 9 September 2019, and received a contract amendment on 18 September 2019 (page 109). She did not sign the document because she was concerned the fixed term end date was expressed to be an earlier date of 9 September 2021 and because she was trying to negotiate a higher salary. The contract end date issue appears not to have become an issue. The claimant’s salary did not change and she did the role. We therefore consider she was paid according to the contractual agreement in this period.[27]The claimant qualified as a clinical perfusionist in late 2021. The College of Clinical Perfusion Scientists sent her a re-registration letter on 25 December 2021 (page 618) advising her she needed to complete 13 cases before 1 May 2022. There was some confusion about what the qualification meant for the claimant’s employment and banding. She understood, and we consider she was told by her manager RJ prior to qualification, that the re-grading would be automatic. We are equally satisfied from the respondent witnesses that the respondent was keen to end the practice of automatic re-grading, which is why RJ later told the claimant that automatic grading to Grade 8 could not happen.[28]Generally at this time, we accept the claimant’s evidence that she was extremely keen and enthusiastic in her role, and was told by RJ that she was performing well. We also accept the respondent’s evidence advanced by Ms Batty (and supported by her tabular comments on page 331 and 332) that the relationship between the claimant and RJ broke down in or around November 2021 when RJ told the claimant that the re-grading would not be automatic. Ms Batty was challenged about her process in cross examination. In particular, it was put to her that her two page summary is not sufficient in the absence of notes of any of the meetings reported upon.[29]We agree that Ms Batty’s approach falls short of best practice, or even sensible practice. However, we do consider on the balance of probabilities that pages 331 to 332 are an accurate summary of the reports. The claimant herself confirmed the news about her re-grading was upsetting and shocking and led her to take time off 8 of 42 work. Ms Batty’s written evidence recorded reports from colleagues of RJ and the claimant about their difficult interactions, and goes on to detail an eventual “breakdown in trust between NF and the team” (page 331).[30]Considering all of the evidence about this time, we consider that the claimant had developed a guarded relationship with RJ prior to any conversation about mandatory vaccinations. We also consider there was tension between the claimant and the team generally. In addition to Ms Batty’s evidence, there is very clear implicit evidence from the claimant of tension because she details her complaints to RJ about grading whist comparing herself to others. In our view, that is more likely than not to promote bad feeling. Vaccination as a condition of deployment (VCOD)[31]Throughout 2021, the Government was working to secure effective vaccinations against Covid-19, the pandemic which was having serious impact on frontline healthcare. The parties agree that, in November 2021, the Government announced an intention for all frontline healthcare workers to be vaccinated in order to work with patients. The parties agree that being pregnant was an exception to the proposal.[32]On 14 January 2022, the respondent issued a guidance document to managers about VCOD (pages 189 to 199). The document explained that staff working with patients would be required “to have received 2 doses of COVID-19 vaccine by 1 April 2022”. The document explains, we find accurately:- “The Regulations [giving rise to VCOD] were approved by Parliament on 16 December and a 16 week ‘grace’ period has now begun to enable staff who haven’t been vaccinated to take up the vaccine before the regulations come into force on 1 April 2022. To date, the Trust encouraged staff to have the COVID-19 vaccination as it provides the best protection against the virus. The new legislation means the Trust now requires staff who are employed in health and adult social care settings to be fully vaccinated. Staff who cannot evidence their full vaccination status by 31 March 2022 will no longer be able to work in their current role from 1 April” (page 189).[33]The guidance sets out that pregnancy is an exemption, and that the exemption expires 16 weeks after birth (page 190). The guidance then sets out a process of escalating steps in terms of consultation, investigation, and ultimately the removal of an unvaccinated non-exempt colleague from their patient contact role. The first effort upon the prospect of removal is to redeploy the employee to a non patient role (page 193). If that is not possible, then dismissal may follow (page 193).[34]The respondent also wrote to the claimant on 14 January 2022 (pages 214 to 215). The letter explained VCOD and said that the claimant needed to have two doses of an MHRA approved vaccine by 31 March 2022, unless exempt. This meant that (so the letter says) a first dose was required by 3 February 2022. In her evidence, the claimant points out that one dose vaccines were approved at this time, meaning that she could have had a single dose on 31 March 2022 and complied with VCOD. 9 of 42[35]In her evidence, Ms Batty said that she had not appreciated this at the time and that only two dose vaccines were proposed to be given to staff. We accept this evidence. The VCOD guidance is plainly written that two doses are required. The claimant produced no evidence, and did not really argue, that a single dose option was available to the respondent at that time. We do not, therefore, find as a fact that there was any other option other than a two dose vaccine for the parties to use in January 2022. This is an important finding about the situation as it was on the ground. The claimant’s arguments about theoretical availability do not alter this fact.[36]The claimant and Ms Batty met on 26 January 2022 to discuss the claimant’s vaccination status. This was intended to be the ‘informal’ part of the process. We accept the claimant’s evidence that she told Ms Batty in this meeting that she was trying to get pregnant. We accept Ms Batty’s evidence that the claimant put across her strong views about COVID-19 vaccines and their safety for people in the claimant’s situation.[37]The claimant contends that VCOD put women at a particular disadvantage when compared to men. She relies upon the guidance for pregnant women and the Covid vaccines. A May/June 2021 ‘London Social Prescribing’ resource pack was shown to us at pages 674 to 725. From within the document, the following key points were highlighted to us:- 37.1. The JCVI recommended pregnant women be vaccinated “at the same time as the rest of the population, based on their age and clinical risk”, a decision “based on real-world data from the United States which shows that around 90,000 pregnant women have been vaccinated, mainly with mRNA vaccines… without any safety concerns being raised” (page 703). 37.2. Covid-19 vaccines do not contain ingredients known to harmful to pregnant women (page 704). 37.3. Public Health England advised pregnant women to discuss the risks and benefits of vaccinations with their clinicians (page 704). 37.4. Under the heading ‘what this means for women in these groups’ the document says – “There is nothing in the vaccine that can affect the fertility of women or men, therefore there is no reason to postpone having your COVID-19 vaccine as it does not affect your likelihood of having a miscarriage…” (page 704). 37.5. Pregnant women should be offered the Pfizer-Biontech or Moderna vaccine, and any with appointments for the AstraZenica vaccine should have them cancelled and re-booked (page 705). 37.6. Pregnant women are not advised to have the AstraZenica vaccine (page 685).[38]The British Fertility Society and the Association of Reproductive and Clinical Scientists also supported pregnant women being vaccinated with mRNA vaccines.[39]On 24 December 2021, the Government published a paper called “Information for Healthcare Professionals on Covid-19 vaccine Pfizer/Biontech (Regulation 174)”. A 10 of 42 copy was shown to us at pages 729 to 742. In relation to pregnancy, the paper says (page 732):- “There is limited experience with use of COVID-19 mRNA Vaccine BNT162b2 in pregnant women. Animal studies do not indicate direct or indirect harmful effects w2ith respect to pregnancy, embryo/foetal development, parturition or post-natal development… Administration of the COVID-19 mRNA Vaccine BNT162b2 in pregnancy should only be considered when the potential benefits outweigh any potential risks for the mother and foetus”.[40]Based on the evidence shown to us, we find that pregnant women were generally recommended by the Government to have the vaccine. There were no clinical concerns with pregnant women having the Pfizer-Biontech vaccine, which the respondent recommended. There was caution based on a relative lack of clinical lab based evidence, and emphasis that the medication should only be taken where the benefits outweigh the risks. All medicine is subject to that same balancing exercise of benefits versus risk. Although lab based studies were limited, we find that the guidance relied on real world data which revealed no concerns about the safety of the proposed vaccine for pregnant women.[41]We find as a fact that these concerns and potentially unknown risks were taken into account for VCOD, because there was the pregnancy exemption which meant that pregnant women were entirely excluded from the new policy. To qualify for the pregnancy exemption, a person would need to show as a matter of fact that they were pregnant. Neverthless, we also find that the vaccinators at the respondent were authorised to give the Pfizer-Biontech vaccine to pregnant women, so long as they had read additional information and given their consent (page 610). We accept the parties’ joint evidence that at least one of the claimant’s colleagues had chosen to be vaccinated when pregnant. This means, we find, the exemption was from VCOD – there was nothing stopping a pregnant woman from being vaccinated by choice. Indeed, as outlined above, it was recommended so long as there were no particular known risks for an individual which meant the benefits were outweighed.[42]The claimant also contends, as a fact, that those aged 18-44 were more likely to report side effects from having a COVID-19 vaccine. To support this, the claimant sought to introduce into evidence data showing that side-effect reporting was more likely to be done by those in the group. In our view, this evidence is not persuasive. No methodology was produced. It is not clear how the reporting was done. We were not shown whether there could be any other reason why a younger age group might report effects such as, for example, the mode of reporting or a prevalence among younger groups to complain of medicine side effects generally. We are wary of finding as a fact that such a large group of the population was so affected on the basis of one data set over two printed pages, particularly when there must be significant studies and research about this point which the claimant had ample opportunity to show us and did not do so. We do not therefore find such a fact.[43]Ultimately, on 31 January 2022, the Government announced that it was proposing to revoke VCOD subject to further consultation. The respondent thereafter did not require members of staff to be vaccinated in order to continue in their patient facing roles. 11 of 42 Discussions about vaccination with RJ and dissertation supervisor[44]The claimant claims that RJ met with her on 29 December 2021. We accept that claim. The claimant has made brief notes of the meeting on page 821. It is clear that the discussion was about the claimant’s decision not to get vaccinated against Covid- 19. The notes say that RJ told the claimant that(1) she put the whole team and department at risk,(2) closed the whole cardiac department, and(3) she put RJ’s family at risk. The claimant, in her witness statement, also said:- 44.1. RJ tried to convince the claimant to have the vaccine, but she declined; 44.2. The claimant told RJ that she may have a medical exemption but he did not ask what the exemption was; and 44.3. RJ emphasised the vaccine was safe and even a pregnant colleague had had the vaccine.[45]We accept those three points set out in the witness statement and we accept something similar to the points on page 821 were said to the claimant by RJ. We find as a fact that RJ did not know the claimant was trying for a baby as a result of this meeting. The claimant does not make that evidential claim.[46]RJ e-mailed the claimant at 4:07pm on the same day (page 186). He mentioned the earlier discussion:- “As part of my responsibility as your line manager we had a discussion today regarding your views on vaccination. You have made it clear you do not intend to take the vaccine. It is expected that compulsory vaccination of front line staff in the NHS will become a condition of employment from 1st April 2022. If this is the case you will be required to have had a 1st dose by 3rd February 2022… … Should it become law in England to be vaccinated your future employment within the Trust will be taken out of my hands. You acknowledged that you are fully aware of this.”[47]The claimant’s response on 31 December 2021 causes us to doubt that RJ’s tone in the 29 December 2021 meeting was precisely as the claimant alleges. Although we accept RJ said as is found above, we consider it more likely than not that RJ did not intimidate the claimant or behave aggressively as is alleged. This assessment is drawn from the e-mail the claimant sent (page 186) – “Dear Robin Thank you very much for your e-mail and, as always, for your genuine interest in my wellbeing. I would also like to thank you for the meeting we had after our conversation on 13 December 2021. 12 of 42 As you kindly asked in your e-mail, I will be contacting Occupational Health to discuss my situation in person, I will also Cc you into that email so you know when did I contacted them. Thank you again for your health and support.”[48]The claimant clarified in evidence that the reference to 13 December in her e-mail was an error; she had intended to write 29 December 2021. In our view, it is unlikely the claimant would have sent this e-mail in these terms if RJ had, as alleged, intimidated and bullied her in the meeting just two days earlier. The claimant has shown throughout the case that she is not afraid to put her views across clearly with appropriate force. She has shown throughout that she can and will complain about things that she is unhappy about. This e-mail on page 186 is warm and conciliatory. The claimant does not seem to us to be someone who would be dishonest in the sense of feeling very hurt, upset, angry and humiliated, whilst also writing an e-mail in these terms to RJ. We find that the claimant did not like RJ’s message and the things he said on 29 December 2021. We do not find that she was bullied, intimidated, or significantly upset by them.[49]On 12 January 2022, the claimant and RJ had another meeting in the contamination room. The claimant covertly recorded the meeting and the agreed transcript was shown to us at pages 837 to 838. The claimant alleges that RJ applied pressure for her to be vaccinated and threatened her job if she refused. The conversation was about RJ’s request for the claimant to be transferred from band 5 to band 7. RJ reminded the claimant that the respondent was preparing to introduce the Government’s VCOD policy which would require her to be vaccinated (unless exempt) to continue. He told her that he had requested the transfer but there were issues. He said: “the issues are to do with your vaccination status”.[50]The claimant counted that her vaccination status should not be an issue until 3 February 2022, the final date by which she needed to have had the first dose of the vaccine. RJ then said:- “That’s nothing to do with me. I am just telling you, how it is and how it has been explained to me. You, so the email last week from the Chief Executive, so there it says that there [are] very few exceptions to vaccinations and they are checking vaccination status of everybody. And any new starters, which also includes people who are changing from one contract to another. Ie have they had their vaccinations? Are they fully vaccinated? And if the answer is no, then contracts will not be offered.”[51]RJ then reminded the claimant that, at least on HR’s understanding of the contractual position, the claimant was not entitled to be uplifted to band 7. The respondent could, he said, simply end the claimant’s trainee contract. When the claimant said that was not her understanding and that she would speak to her union about it, RJ said (page 838):- “At one point, I said that it is automatic. I said there is a job for you here if you want it. But you clearly don’t want it. Because you refuse to be vaccinated. So, that is your choice.” 13 of 42[52]The claimant contends that RJ was threatening the claimant’s job in this meeting. In our view, and our finding as a fact, is that he did not threaten her job. The claimant and RJ had both read the VCOD proposal. They understood that the claimant would need to be vaccinated with a first dose by 3 February 2022 unless exempt to be able to work with patients. They both understood that the claimant was not intending to do that. RJ understood that her position meant that her transfer to band 7 was presently on hold. He communicated that to the claimant. He was not wrong to note that the claimant’s band 5 training contract had an end date. He was communicating an understanding that that contract could simply end if she was not working with frontline patients. We do not consider that there was any threat in the wording used. We also do not find that RJ was pressuring the claimant to get vaccinated. That is not discernible from the transcript. All RJ was doing was highlighting the implications for the claimant if she continued to refuse to be vaccinated.[53]The claimant says she was upset by the conversation and felt trapped and coerced. We accept she may have felt that way when RJ laid out the very real implications of not being vaccinated whilst hoping to work with patients, but we do not consider that RJ pressured her or threatened her when his side of the conversation made her feel that way. We do not find as a fact that RJ pressurised the claimant to have the vaccine either. Having read the transcript, we consider that the claimant’s perception of what was said to her is not credible. The words said by RJ are clear and we do not consider there was any malicious implication where, as the parties agree, the respondent was proposing to introduce this Government policy and it would have these known effects.[54]After reflecting on the difference between the claimant’s arguments about what was said and the wording of the transcript, we consider the claimant’s evidence about what was said to her, and what was meant by them, should be treated cautiously. We do not consider that she reliably interpreted or recalled this meeting. Naturally, this affects how we consider her evidence about other meetings which are not supported by agreed notes or transcripts.[55]The claimant says, and we accept, that her dissertation tutor contacted her on 29 December 2021. She says, and we accept, that the phone call came shortly after her meeting with RJ. Neither party called the supervisor to give evidence. The claimant says that her supervisor was seeking to persuade her to be vaccinated. To support that contention, she referred us to her note on page 822. That note records a conversation about vaccination and whether the claimant would be able to work elsewhere or shift career if she continued to be vaccinated. In terms of whether or not RJ had done something to trigger the call (which is what the claim is about), the claimant only records the timing of the call and “therefore I understand Mr Jones breached confidentiality regarding my vaccination status”. Although we accept the conversation happened, we are cautious about the claimant’s accuracy in recounting what the conversation was about for the reasons outlined above. There is no agreed note and no transcript of the conversation.[56]We must consider whether, as a finding of fact, RJ told the claimant’s dissertation supervisor about her decision not to get vaccinated. The claimant has no direct knowledge about whether he did. It is, in her own words, an understanding based on the timing. It is an assumption. Additionally, the claimant admits that her decision 14 of 42 was not a secret. We do not consider she kept the information confidential. In her witness statement, the claimant says she had told two other colleagues about her decision. In our view, the only thing linking the two conversations is their temporal proximity. In our view, RJ is not the only means by which the information could have reached the dissertation supervisor.[57]Consequently, we do not find as a fact that RJ breached the claimant’s confidentiality by telling her dissertation supervisor about her decision not to get vaccinated. The claimant has not met the evidential burden required. The balance of probabilities do not tip in favour of her factual assertion. In our assessment, it is equally likely that the dissertation supervisor found out about the claimant’s vaccination status from somewhere else.[58]The claimant’s evidence, which we accept, was that after 12 January 2022, she was very upset and regularly crying. She said, and we accept, that she was “constantly stressed, living in a state of fight or flight, never knowing when the next reprimand or instance of bullying would come”. She also said her levels of “stress and anxiety reached new heights”. We accept this evidence because it was candidly admitted, and it is on the balance of probabilities likely in circumstances where someone has worked for a career and then feels it is being put under threat because of the VCOD guidelines and her department’s intention to implement them. What this also means is that, from this date onwards, we regard the claimant’s evidence with further caution because those in fight or flight, or suffering with increased stress and anxiety, are less likely in our judgment to have an accurate sense or interpretation of the events to which they are a party. The claimant’s evidence in chief also records that the claimant “lost all confidence in [her] manager and employer” from 12 January 2022. We accept that evidence.[59]The claimant and RJ spoke again on 19 January 2022. Unbeknownst to RJ, the claimant again secretly recorded him. A transcript of the conversation was at pages 840 to 843. RJ advised the claimant that her move to Band 7 would be done if there were no problems, but that there would need to be an application made to a vacancy. He explained, essentially, that the application would succeed so long as the claimant met the conditions of employment. RJ told her that her compliance with VCOD was one of those conditions of employment. He also said (page 841):- “In terms of managing you at work, you’re clear that I have an issue with you being here, given your non vaccination status. Yeah? And if is not going to change, I need to focus on other members of the team with three new members of staff that we need to get up to speed in lots of areas. And we’ve got more new members coming in. So that is my priority. The priority for you, which I’m prepared to help you with, if you look at the number of cases that you need to do to be able to accredit this year…”[60]At 09:23 in the transcript, an exchange occurred which we consider entirely encapsulates the different positions of the claimant and RJ:- “RJ: And if I could, if there was one thing I would do it to get you to change your mind because you are throwing away a perfectly good and lasting career. 15 of 42 NF: I’m not throwing away they’re pushing me. RJ: No, no, Nerea, no no no no, you are throwing away on the basis of vaccination, which I don’t want to go down that road again about talking whether it’s safe or not. Millions, billions of people have had the vaccine and it’s entirely safe. So so we’re not going to go down that route. NF: No long time data RJ: You’re not being pushed but you’re not being victimised. It’s been it’s in law, a condition of employment of frontline NHS staff. And you, you fit that catgory. So it’s not fair to say that you are being pushed out. You are taking a you’re making a choice. NF: I’m not saying that you have pushed me out or the Trust no way no no no. RJ: No, no, you’re not being pushed out, you are making a decision based on what you believe to be the true and just facts around vaccination for Covid. NF: No, I, I don’t agree with you. There, is no what I believe there is a face I am that there is no long term data because it’s impossible to have long term data. It’s impossible. RJ: Stop talking about data Nerea. Because that’s where I get annoyed. Because because if we don’t need data for what we can see in front of our eyes, you know, had people not taken responsibility of being vaccinated, there’d be millions more people dead.”[61]When RJ pointed out to the claimant that the respondent was implementing law, and did not set the law, the claimant said “yeah, yeah, yeah, I’m with you there” (page 841). We therefore find that the claimant understood and accepted that the respondent and RJ were not in control of the implementation of VCOD; it was law forced upon all of them. The conversation ends shortly after with an agreement for the claimant to contact HR that same day. RJ told the claimant that the job vacancy would be out ‘on Friday’. The claimant is the last person on the recording to speak: “All right. Thank you Robin”.[62]In terms of reference to a medical exemption, we note that the claimant refers once to speaking to a GP to work out if she has an exemption. RJ does not ask about it and the claimant does not link the comment to being a woman, her age, or to pregnancy.[63]The claimant contends that RJ’s comments to her quoted above were harassment. In her evidence, the claimant did not say anything about the impact of the conversation with RJ on 19 January 2022 upon her. We have no evidence indicating that the claimant felt in the way required to found a claim of harassment. The transcript shows a conversation, which strays into debate, but which does not escalate and which ends amicably with mutually agreed next steps. Despite clear 16 of 42 differences, the end of the conversation appears to have been warm and cordial. There is no indication from the transcript that the claimant felt that her dignity was violating or that there was an intimidating, hostile, degrading, humiliating or offensive environment. We do not, in consequence, find as a fact that she felt that way. Reduction in claimant’s on-call work[64]On 13 January 2022, the claimant learned that she was not going to be assigned any on-call duties for February 2022 (page 277). It is agreed the claimant was not assigned on-call work for February 2022. The claimant considers this was a direct result of not being vaccinated, and was RJ’s decision following their discussions about her vaccination status. The respondent’s Rosie Batty investigated this point in the grievance, and her notes record her conversation with RJ about it (page 327):- “He said it was due to behavioural issues, C was argumentative and aggressive with more senior members of the team. Perfusionists go on call 1 senior/1 junior. More senior didn’t want to be on call with her. Stressful, emergency cardiac etc. Need strong working relationship with on call. He did not have that conversation at the time. He should have had the conversation if was going to take off call. To be honest she should’ve been put through some kind of disciplinary process. We discussed how it could have been handled better in the future.”[65]In the same investigation, we accept that Ms Batty was also told that:- 65.1. The claimant “often over reacted to being asked to do things… senior members of the team felt this was risky given the clinical risk to patients being cared for by perfusionists” (page 331); and 65.2. “…breakdown in trust between [the claimant] and the team – felt that situation was risky and that [the claimant] may go beyond her competencies” (page 331).[66]We also find that RJ was guiding the claimant about not going beyond her competencies and admonishing her for what he considered was her susceptibility in doing so (page 859 and 860).[67]The respondent submits that we should find as a fact that the reduction in on-call work was because of the claimant’s behaviour and the unwillingness of senior staff to work with her. Conversely, the respondent submits we should not find it was because of vaccination status, noting that RJ knew about the claimant’s lack of vaccination and intention not to vaccinate in December 2021 but that he did not take her away from on-call work.[68]We find as a fact, on the balance of probabilities, that the claimant was removed from on call work as a reaction to all of these circumstances. We accept the respondent’s evidence that RJ was dealing with senior perfusionists who did not wish to work with the claimant. We also find that her vaccination status fed into that decision. In our view, it is more likely than not that RJ was preparing for the claimant to be un-vaccinated when the VCOD requirements came into force. He responded accordingly. 17 of 42[69]The claimant complains about being taken off on call shifts through the statutory framework of a victimisation claim. Unfortunately, in her evidence in chief, the claimant did not set out the effect on her feelings or on the environment of being taken off on calls. She says she was taken off them because of her vaccine status. Elsewhere, she says being taken off them caused financial loss. She does not, though, offer any evidence about the effect of the decision on her. This is important, because her claim is about ‘effect’ rather than ‘purpose’ of the decisions. This means that, in the same way as with the 19 January 2022 interaction, we cannot find as a fact that the alleged act of harassment had any sort of negative effect on her at all (outside of, potentially, a loss in earnings). The claimant’s grievances[70]On 26 April 2022, the claimant e-mailed Ms Batty and started a formal grievance process (page 252). On 29 April 2022, Ms Batty replied to say she had uploaded the grievance to the HR portal and that she will pick it up with HR (page 251). On 3 May 2022, Ms Batty emailed the claimant to tell her a formal meeting will follow. That letter was shown to us on page 255. The meeting was to take place on 18 May 2022. The claimant was permitted a union accompanier.[71]The claimant’s grievance form was shown to us from page 247 to 249. It takes the form of a timeline, and opens with “I have been harassed, bullied and discriminated against since my line manager Robin Jones (RJ) learned that I did not have the Covid-19 vaccine”. The timeline includes complaints about being threatened to lose her job, the matters that are now claimed as harassment by RJ, and the issues with her re-grading from band 5 to band 7. The grievance explains that Ms Batty confirmed the contract would be extended. It complains of being asked to clean heater-coolers on one day which made her feel sick. It complains about having IT access removed. It complains about RJ pulling the claimant up for her behaviour, all of which the claimant says in the grievance led to her being signed off work.[72]When asked to state a desired outcome, the claimant said she desired (page 249 to 249) – “disciplinary action to be taking against the people who bullied me. In addition, I request a public and writing apology. Moreover, I request the initial pathway to promote to band 8. And finally, an economic compensation.”[73]These last points are the only parts of the grievance where the claimant requests or requires some action. The other pages of the grievance set out a long timeline narrative of alleged interactions that the claimant was unhappy about.[74]The stage 1 grievance meeting took place on 18 May 2022. Notes from the stage 1 grievance meeting were at pages 263 to 267. Ms Batty chaired the meeting. She explained that the purpose of the stage 1 meeting was for the claimant to explain what she would like from the process. The claimant explained that she felt undermined since RJ learned she had not had a COVID-19 vaccination. She said she had been excluded from on-calls. She explained that RJ made her feel intimidated. She explained that she felt RJ had taken steps to end her employment, 18 of 42 including keeping her away from doing cases. The claimant explained that she felt harassed when she received e-mails from her supervisors.[75]Having heard the claimant’s comments, Ms Batty suggested there were two themes:(1) communication from RJ and the other supervisor, and(2) career progression. The claimant did not object to hear complaints being divided in this way. In the meeting, Ms Batty then asked a series of open questions about each are of the claimant’s grievance and allowed her to speak in full in reply. Ms Batty asked if the claimant wanted her to speak to anybody and made a note of the names offered. Afte the meeting, the claimant sent Ms Batty a raft of documents shown to us from page 268 to 317. These were in relation to the claimant’s workload and rota.[76]Ms Batty then began an investigation, interviewing each of the people mentioned to her as well as those named in the claimant’s grievance. She admitted in evidence that she did not keep notes of the meetings with the individuals, although she did tabulate the summary on pages 326 to 331 which we have accepted as an accurate summary of the conversations she had. Ms Batty did not interview two members of staff because she felt there was sufficient evidence from her other conversations. We accept Ms Batty’s evidence that there were delays to her investigation as a result of RJ being off ill for an extended period and a heatwave causing difficulties at the respondent.[77]The table shown from pages 326 to 330 is split into each of the allegations made in the grievance form. Ms Batty correctly identified the relevant person to speak to for each allegation and then records what they say about the allegation. In our view, the records are brief (they are summary in nature) but they do capture a response and show that Ms Batty investigated each area by asking for the other side of the complaint to comment upon it. We accept the claimant’s evidence that RJ denied that he had bullied or harassed the claimant.[78]The grievance does not complain of any incident on 29 December 2021 (which now forms part of this claim), nor the conversation on 19 January 2022 (which also forms part of this claim). It follows that RJ did not admit or deny he made those comments because he was not asked about them. It follows that he was not asked about them by Ms Batty because they did not form part of the timeline of complaints in the grievance itself.[79]Ms Batty weighed the evidence she had gathered against the complaints made in the grievance, and wrote an outcome to the claimant on 15 August 2022 (pages 333 to 339). The detailed letter concludes, in brief summary:- 79.1. There was a delay in moving the claimant’s banding caused by HR, and an apology was issued, although in comparison to other career journeys the claimant had not been held back; 79.2. Despite interviewing 7 members of the claimant’s team, there was no evidence that she had been bullied. 79.3. There was evidence of disagreements within the team and Ms Batty considered there was fault on all sides. 19 of 42 79.4. The claimant was taken off on-calls because of a behavioural issue and not because of vaccine status, and this was poorly communicated at the time.[80]The claimant received the stage 1 outcome on 18 August 2022. The claimant considered that RJ victimised her in the grievance process, accusing her of misbehaviour. She says she was overwhelmed and unable to sleep for a week. Given the nature of the complaints in the grievance, the way they are put, and in particular the severity of the outcome she wanted (which she considered ‘fair’), we accept that Ms Batty not upholding the main parts of her grievance would have caused significant distress for the claimant.[81]On 31 August 2022, the claimant submitted a stage 2 formal grievance form (pages 342 to 350). The claimant essentially wanted her stage 1 grievance to be dealt with again on the basis that the nature of the grievance in stage 1 “was not addressed” (page 342). The claimant re-attached her stage 1 grievance and provided some further detail, in dense narrative form, about the ways in which she disagreed with Ms Batty’s outcome.[82]The stage 2 grievance was chaired by Ben Falk. His evidence in chief recorded that he felt that the claimant “was conveying a general unhappiness at the outcome of her stage 1 grievance, as opposed to raising anything new factually that had been missed or not available to Rosie to be considered”. We accept that evidence. As a matter of fact, we agree with it. The claimant was essentially asking for the stage 1 grievance process to be run again, but for the findings to be made in her favour. The claimant asked for the same outcomes from the stage 2 grievance (page 350).[83]Mr Falk was concerned that the formal process would not address the claimant’s problems where, as he saw it, Ms Batty had done a thorough investigation and the claimant was not submitting any new information or evidence. He checked with the claimant whether she wished the process to progress. The claimant did. A stage 2 meeting took place on 11 November 2022. Handwritten notes were shown from page 372 to 388. They show the claimant complained that very important points were not addressed in stage 1. She said that she had been bullied by her line manager and gaslit by RJ and another manager.[84]When Mr Falk prompted the claimant to identify the key points for him, the notes record the claimant mentioned (page 374):- 84.1. There being no apologies in the outcome from stage 1; 84.2. Her belief RJ told her dissertation supervisor about her vaccination status; 84.3. Her being vilified / punished for not having the vaccination (which was not addressed in stage 1); 84.4. Shortfalls and delays; 84.5. Her back pay from move up to band 7 resulting in tax issues; and 84.6. Mistakes in payment and work requirements. 20 of 42[85]The claimant considered all of the above stemmed from her vaccine status. When asked about her vaccination position, she did not mention being pregnant or trying to be pregnant. She said it was her body to do with as she wanted. Mr Falk asked some pertinent questions and noted the responses, and then Ms Batty presented her response to the stage 2 appeal. She noted that some aspects of the appeal were not contained in the stage 1 grievance, such as with her dissertation supervisors. Ms Batty explained there were no specific examples of discrimination offered by the claimant. She said that when she spoke to witnesses, some of them made allegations against the claimant. Ms Batty said that, in her view, no one side was to blame.[86]Mr Falk gave his outcome to the stage 2 grievance the same day. He said, and we accept, that he felt able to do this because there was nothing materially different between the stage 1 grievance and the stage 2 grievance. In other words, Mr Falk felt that Ms Batty had done a thorough investigation and the claimant had not persuaded him otherwise.[87]Mr Falk’s outcome letter was sent on 30 November 2022 (pages 389 to 392). Mr Falk upheld the following issues (pages 390 to 391):- 87.1. The band 5 to band 7 process was not smooth and delays were caused by HR and the claimant’s vaccination status; 87.2. The respondent could have handled VCOD implementation better. 87.3. It is possible the claimant suffered financial loss as a result. 87.4. RJ should not have drawn the claimant into confrontation about the vaccines.[88]Mr Falk did not uphold (page 391):- 88.1. Any bullying or harassment, for lack of evidence. 88.2. The notion that pay progression had stalled as a result of bullying or harassment.[89]Mr Falk made recommendations to get the claimant back to work (pages 391 to 392).[90]On 13 December 2022, the claimant submitted a stage 3 grievance (pages 410 to 413). The opening line of the stage 3 grievance is “the nature of my Grievance in stage one and two were not addressed”. The claimant then repeats the points made in the previous two grievances, and presses for compensation in respect of the points upheld by Mr Falk, as well as for the points not upheld by Mr Falk that she wished to be considered again.[91]A stage 3 meeting took place, chaired by Luke Blair, on 22 February 2023. There appear to be no notes of the meeting. The claimant gives no evidence about what happened at the meeting, other than she attended it. The only evidence we have about the contents of the meeting is from Mr Blair. He says he cannot recall the 21 of 42 meeting well, but his recollection (which we accept on the balance of probabilities) is that:- 91.1. He confirmed the claimant had had adequate time to prepare. 91.2. The claimant had the opportunity to say anything she wanted to say. 91.3. The claimant explained she felt the bullying had started as a result of her vaccination status. 91.4. The claimant made no new points, and confirmed as much.[92]Mr Blair’s outcome was sent to the claimant on 28 February 2023. A copy was at pages 542 to 545. The letter:- 92.1. Acknowledged the claimant’s concerns that her vaccination status meant she was bullied by RJ, including having her job threatened. 92.2. Acknowledged HR had not been responsive to the claimant. 92.3. Explained Mr Falk considered the claimant had not been bullied. 92.4. Explained that Mr Falk apologised for the VCOD difficulties, acknowledging this was a difficult time, and that some conversations could have been handled differently. 92.5. Acknowledged that VCOD caused a significant impact to the claimant because of her decision not to be vaccinated. 92.6. Apologised for the impact of RJ’s words. 92.7. Found there was no evidence which would support a finding of bullying or harassment. 92.8. Dismissed the appeal. 92.9. Offered to draft an email to be shared with colleagues which set out that the grievances were made in good faith and that they found instances where the respondent could have communicated with the claimant better.[93]Having considered all of the grievance forms and documentations, we find the claimant did not raise or sustain concerns about the impact of the COVID-19 vaccinations on her fertility. Indeed, we are struck by how the claimant did not explain really at any stage in the grievances why she was concerned about being vaccinated. 23 March 2023 long term sickness meeting[94]On 23 March 2023, the claimant attended a long term sickness meeting with Ms Batty. There were no notes of the meeting. The claimant says that, in that meeting, Ms Batty suggested she was offered redeployment as a nurse. The complaint is that Ms Batty did not refer to it in her outcome letter (page 559 to 560), which is said to be an act of harassment. 22 of 42[95]The claimant says she suggested redeployment to the Royal Brompton Hospital. She says Ms Batty’s suggestion she redeploy as a nurse undermined her qualifications and skills. Ms Batty acknowledged that she asked the claimant if she would want to work again as a nurse, having kept her registration, but when the claimant said she would not, the conversation moved on. Ms Batty said she did not intend to redeploy the claimant unless the claimant wanted to, and it was something to explore in the interests of finding a solution. She says, and we accept, that she did not press the idea when the claimant refused.[96]In our view, the accounts do not conflict. In a way which is familiar with the claimant’s evidence, she has taken a literal and more extreme interpretation of something said to her and turned it into grounds for a claim. We find that Ms Batty raised the idea in an effort to find a solution. We find the claimant dismissed the idea. We find the conversation moved on and the suggestion was never explored further.[97]The meeting outcome letter does not mention the exchange. It mentions the possibility of the claimant redeploying within the respondent’s employment as a perfusionist. The claimant asked for the letter to be amended to include reference to proposed redeployment as a nurse but Ms Batty refused because it was not a proposal made or taken forward.[98]The claimant relies on this exchange as an instance of harassment. She gives no evidence about the effect of the exchange on her. We do not find that the claimant experienced the effects required to found a claim of harassment. Resignation[99]The claimant resigned on 14 April 2023 (page 585). She stated her last day would by 13 May 2023. The operative part of the letter, which we find sets out the matters the claimant resigned in response to, reads:- “I consider that some members of the management team have subjected me to bullying and harassment in connection with my employment and in particular over my vaccine status. More women than men are vaccine hesitant and more women than men have fertility concerns over the mRNA vaccine. The treatment in my view was tainted by discrimination. The grievances submitted did not resolve the issue and one manager did not tell you the truth regarding the conversations he had with me.”[100]The letter reserves the possibility that a solicitor would write to detail further breaches to which the claimant resigned. In our view, on the balance of probabilities, the reasons for the resignation are as set out in the resignation letter itself, and the paragraph above. We consider this because a person can only resign for reasons they know about, and so the message drafted by the person resigning is preferable evidence than something drafted later by a professional lawyer.[101]In terms of the resignation reasons, it is a fact that:- 101.1. The claimant considered she had been bullied by RJ about her vaccine status for over 15 months before she resigned; 23 of 42 101.2. The claimant had raised concerns about VCOD implementation and its effect on her as a non-vaccinated person over 15 months before she resigned; 101.3. The claimant considered RJ had lied to Ms Batty since the stage 1 outcome around eight months before she resigned; 101.4. The claimant knew the grievances had not resolved her concerns (in her view) for about six weeks before she resigned; and 101.5. Since the stage 3 outcome had been received, and around three weeks before resigning, the claimant had been asking to be redeployed as a perfusionist into another team within the respondent.[102]As is set out below, the claimant then continued to pursue her application to be paid injury allowance, a benefit only payable to respondent employees under the policy, after she had resigned. NHS Injury Allowance[103]NHS Injury Allowance may be accessible to employees who sustain an injury or contract a disease or health condition due to NHS employment (page 74). It allows for eligible employees to be paid when on authorised sickness absence or a phased return to work where they are receiving reduced or no pay. It may pay up to 85% of the employee’s salary. It is a fact that the receipt of injury allowance is contingent upon the underlying employment continuing.[104]The claimant applied for injury allowance on 14 November 2022 (page 670) to ask for documentation. She chased again on 17 November, 27 November 2022, and 10 December 2022 (page 880).[105]When the claimant resigned, she asked about the injury allowance again. The claimant followed up on 27 April 2023 (page 583). We find she was pursuing her application on 27 April 2023, and is anxious to get the injury allowance paid if possible before her contract ends. The claimant pressed for an outcome to her injury allowance again on 3 May 2023.[106]The claimant did not seem to appreciate the importance of her pursuing the respondent for a contractual benefit of her employment contract after her resignation notice had been given. She admitted that she wanted to receive the injury allowance after her resignation and before her contract ended. In those circumstances, we find as a fact that the claimant wanted her contractual right to apply for and receive this contractual benefit to remain in place after her resignation.[107]On 8 May 2023, Ms Batty wrote on behalf of the respondent to refuse the claimant’s application for injury allowance. The reason for the refusal was said to be because the claimant’s ill health absence stemmed from the issues giving rise to her grievance about bullying which was not upheld. The claimant considers this is all as a result of RJ denying he bullied her. We find this is partially true. The whole truth is that the respondent found no evidence that the claimant had been bullied. 24 of 42[108]The claimant claims that the respondent harassed her when it refused her injury allowance application. She gave no evidence about the effect of the refusal upon her, and so we find no facts about the effect on her. Relevant law Indirect discrimination
Relevant law
[109]Section 19 Equality Act 2010 provides:- “(1) A person(a) (A) discriminates against another(b) (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s. (2) For the purposes of subsection (1), a provision, criterion of practice is discriminatory in relation to a relevant protected characteristic of B’s if – (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,(c) it puts, or would put, B at that disadvantage, and(d) A cannot show it to be a proportionate means of achieving a legitimate aim.[110]The phrase ‘particular disadvantage’ means only an identified disadvantage. It is not intended to convey any meaning about the level or seriousness of the disadvantage which may be caused (CHEZ Razpredelenie Bulgaria AD v Komisia za zashita ot diskriminatsia [2015] IRLR 746). Statistical analysis is not necessary where a disadvantage can be demonstrated compared to those who do not share the disadvantage in question (Homer v Chief Constable of West Yorkshire Police [2012] IRLR 601). The point is to identify whether the group the claimant belongs to share a particular disadvantage, and it is an error to consider that where there is a general disadvantage to all (in and out of the group), then there is no particular disadvantage (Pendleton v Derbyshire County Council and another UKEAT/238/15).[111]If there is a group disadvantage, a claimant must show that they were put to that disadvantage. This is assessed at the time that the PCP was applied (Clarke v Eley (IMI) Kynoch [1983] ICR 165). The time at which the PCP is applied is also the beginning of time beginning to run for time limit purposes. The claimant need not suffer precisely the same level of disadvantage as others in the group or the group as a whole, but they must show the same type of ‘corresponding’ disadvantage (Ryan v South West Ambulance NHS Trust UKEAT/213/19).[112]Whether or not a PCP is a proportionate means of achieving a legitimate aim is a matter for the Tribunal. Each element should be assessed separately (MacCulloch v CIC Plc [2008] IRLR 846). When considering whether or not the employer has pursued proportionate means of achieving a legitimate aim, the Tribunal must 25 of 42 undertake “an objective balance between the discriminatory effect of the condition and the reasonable need of the party who applies the condition (Hampson v Department of Education and Science [1989] IRLR 69 CA).[113]Where age discrimination is concerned, Paragraph 1 of Schedule 22 Equality Act 2010 provides that something done as a requirement of an enactment is not to be considered as discrimination under the ‘Work’ part of the Equality Act 2010. Harassment[114]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 (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.”[115]The claimant must establish that the conduct complained of was unwanted. It is not enough to assert that the conduct was simply tolerated and so was unwanted ((1) Munchkins Restaurant Limited and (2) Moss v Karmazyn and others UKEAT0359/09). The alleged harasser does not need to be aware that the conduct would have the effect required by the definition of harassment to have committed harassment (Reed and Bull Information Systems Limited v Stedman [1999] IRLR 200, EAT).[116]The claimant does not need to have the protected characteristic relied upon to be a victim of harassment under s26. The relationship is between the conduct and the protected characteristic, rather than the claimant and the characteristic. In practice, this might be fairly obvious from the wording used where the wording is directly related to the protected characteristic (see for example Blanc de Provence Ltd v Ha [2024] IRLR 184). 26 of 42[117]The words ‘related to’ require a broader enquiry than the words ‘because of’ as is seen in direct discrimination claims. This means that there must be a broader enquiry when considering, in less obvious cases, whether the harassment relates to a protected characteristic. The evidence of the alleged harasser is helpful in understanding the context of what was said or done, but it is not a requirement to successfully defend the claim. In Bakkali v Greater Manchester Buses (South) Limited UKEAT/176/17, Mrs Justice Slade said (para 31): “In my judgment the [broader wording] requires a more intense focus on the context of the offending words or behaviour. As Mr Ciumei QC submitted “the mental processes” of the alleged harasser will be relevant to the question of whether the conduct complained of was related to a protected characteristic… It was said that without such evidence the ET should have found the complaint of harassment established. However such evidence from the alleged perpetrator is not essential to determination of the issue. A tribunal will determine the complaint on the material before it including evidence of the context in which the conduct complained of took place.”[118]It is important to emphasise 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.[119]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 harassment 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 should first consider whether the burden does shift to the respondent, which places responsibility on the claimant for providing some cogent evidence that there could be contravention (Ayodele v Citylink Ltd and another [2017] EWCA Civ 1913).[120]S136 clearly sets out a two stage test, but the Tribunal is cautioned against applying that test in a way which is too mechanistic (Chief Constable of Kent Constabulary v Bowler [2016] EAT 0214/16; Bahl v The Law Society [2004] EWCA Civ 1070). This caution is particularly important in harassment cases where, for the reasons outlined above, the overall context is crucial to an assessment of whether there has been conduct which falls foul of each part of the statutory definition (as is shown by Bakkali and Grant).[121]Where positive findings are made which leave little doubt about the facts in relation to a respondent’s motivation, then the burden of proof provisions can be overlooked entirely (Martin v Devonshires Solicitors [2011] ICR 352) Time limits 27 of 42[122]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.[123]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[124]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).[125]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).[126]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).[127]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 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. 28 of 42[128]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).[129]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).[130]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.” Discussion and conclusions Indirect age discrimination[131]The parties agree that the respondent’s requirement for staff to be vaccinated in compliance with VCOD is a PCP which was applied to all patient facing staff. This included the claimant.[132]In our judgment, the PCP was adopted and applied to ensure that all staff were fully vaccinated in time for the VCOD grace period ending on 1 April 2022. VCOD were regulations passed under legislative authority. Consequently, we consider that the requirement for the respondent to apply the PCP identified came from an enactment. This brings it within the scope of Schedule 22, meaning that the 29 of 42 application of the PCP cannot be found to be age discrimination. In our judgment, subject to time, this claim must fail for that reason.[133]Alternatively and additionally, we have not found facts which support a conclusion that the claimant’s identified 18-44 age group was at a particular disadvantage caused by the PCP applied. We did not find that the group was negatively affected by a requirement to be vaccinated over and above any other. We did not find that side affects were worse in that age group, in the absence of evidence confirming that there was.[134]The claimant submits that her own views and qualifications mean we should accept her opinion on the matter. We decline to do so. As set out when considering the claimant’s evidence generally, we do not consider the claimant is able to objectively or independently interpret what was happening around her at the time. In our judgment, that concern extends to matters of evidence she sought to give us about matters relating to her claim.[135]Consequently, we do not find the group disadvantage the claimant seeks us to find. Even without the Schedule 22 provision, and subject to time, the claim would fail for this reason, too. Where there is no group disadvantage, we do not go on to consider whether the claimant was placed at the non-existent group disadvantage.[136]Following these conclusions, we do not go on to set out in detail our position on the respondent’s statutory defence. If called to make a decision on whether or not the PCP applied to age discrimination was a proportionate means of achieving a legitimate aim, we would follow our own reasoning set out below in respect of the indirect sex discrimination claim.[137]This claim is also on its face out of time. The PCP was withdrawn after 31 January 2022. The ACAS process does not extend time where it was started out of time. The claim was lodged on 11 August 2023, over 15 months after the PCP was withdrawn. There is no evidence before us indicating it would be just and equitable to extend time. The claim has also failed at every hurdle. It is not just and equitable for time to be extended and so it is not.[138]This part of the claim is therefore dismissed as being beyond the jurisdiction of the Tribunal and, even if it was not beyond jurisdiction, it would quite plainly fail for all the other reasons outlined above. Indirect sex discrimination[139]We next consider whether the PCP indirectly discriminated against women. The claimant says that the guidance about vaccination for women of childbearing age and pregnant women was not always clear and was contradictory. This is the only group disadvantage for women argued in the claimant’s closing submissions. It is the only articulation of group disadvantage ever put to us to consider. We do not accept that the guidance was unclear or contradictory. The extracts we were shown are laid out in the fact-finding part of the judgment. It was clearly the case that any drug or vaccination comes with some risk. The risks of the COVID-19 vaccine were necessarily less laboratory tested than other vaccines because of the unprecedented pandemic and, taking judicial notice of the pandemic’s deadliness, the danger of the virus itself. 30 of 42[140]Having said that, the medical guidance at the time favoured vaccination absent any particular feature of an individual’s health which meant that the risks outweighed the benefits. In terms of pregnancy, the guidance was equally clear that the vaccines were safe but that pregnancy was an additional risk to consider. This is likely to be usual compared to many drugs in pregnancy. In our view, the claimant’s confusion or lack of clarity appears to be more a result of trying to read the guidance in a way which would excuse her from the requirements to take the vaccine. That is not how an ordinary person would read and understand them.[141]We accept that something which affects pregnant women affects women as a group. According to the interpretation of the legislation, only women can be pregnant. We do not consider, though, that VCOD put women at a particular disadvantage when compared to men. Pregnant women, the group which the claimant argues were most at risk, were exempt from application of the PCP.[142]It is true that the claimant’s position is distinguished from ‘pregnant’ women. She was trying to conceive, and may have been pregnant at some point over the relevant time, but did not know it and so could not secure exemption. However, in a situation where vaccination is still recommended and where no particular safety problems have been identified to us, we still do not see the group disadvantage the claimant argues.[143]We accept that the claimant was put at a disadvantage by the PCP. She did not wish to get vaccinated and was facing losing her job because of her wish. That is not, though, the same disadvantage as the group disadvantage she argued or pleaded. In our judgment, the claim is confused in its formulation and it was never clear in the hearing. Indeed, it seemed to us that Ms Chute accepted these issues in the hearing and we understood the indirect discrimination claims may not be pursued to final hearings. They have not been argued clearly or well.[144]The respondent submits that its requirement for staff to be vaccinated in line with VCOD was in any case a proportionate means of achieving a legitimate aim. It says that it was following statutory requirements, motivated by maximising patient safety, and following the guidance generally for people to be vaccinated against COVID-19. These, the respondent says, were legitimate aims. The respondent submits the PCP was implemented proportionately. We have found that there were relevant exemptions, such as the pregnancy exemption. It is a fact that the respondent ceased following the PCP when the legal requirement to do so was removed by the Government’s revocation of VCOD after 31 January 2022.[145]The claimant does not take issue with the stated legitimate aims. She submits that the respondent tried to implement the PCP too soon. It appears she considers that the PCP should not have been applied until 31 March 2022 because that is the date upon which an employee could have been vaccinated with a single dose vaccine to comply with VCOD. Further, she submits that the (as her case suggested) harassing and aggressive manner in which RJ pursued her being vaccinated was not proportionate. She says that, in all, the respondent cannot show that it had a real business need at the time of the PCP’s imposition. 31 of 42[146]We prefer the submissions of the respondent in respect of the statutory defence. We agree it was pursuing legitimate aims. We agree that its implementation of the PCPs was proportionate. There were appropriate exemptions. The implementation for individuals was graduated and staged from informal discussion to formal process. The PCP was withdrawn once it was no longer required. The respondent could not, in our judgment, have continued to function if VCOD was not withdrawn and sufficient staff were not vaccinated. We do not agree with the claimant’s submissions. We have not found RJ to have acted in a way which was bullying or harassing. There is no evidence the single dose vaccine was available to the respondent. All of the evidence indicates only the Pfizer-Biontech vaccine was available and being used by the respondent.[147]For all of those reasons, at every stage of analysis, we consider the claim should fail even if time is extended. This claim is also on its face out of time. The PCP was withdrawn after 31 January 2022. The ACAS process does not extend time where it was started out of time. The claim was lodged on 11 August 2023, over 15 months after the PCP was withdrawn. There is no evidence before us indicating it would be just and equitable to extend time. The claim has also failed at every hurdle. It is not just and equitable for time to be extended and so it is not.[148]This part of the claim is therefore dismissed as being beyond the jurisdiction of the Tribunal and, even if it was not beyond jurisdiction, it would quite plainly fail for all the other reasons outlined above. Harassment claims[149]The claimant makes a number of harassment allegations. Each is dealt with below under its description in the issues. 12 January 2022 – Robin Jones (RJ) pressuring the claimant to be vaccinated and threatening the claimant’s job if she continued to refuse; [NOT FOUND AS FACT][150]We did not find as a fact that RJ applied pressure to the claimant or threatened her job on 12 January 2022. He highlighted the implications of not being vaccinated where VCOD was passed and a grace phase was in the process of running down. RJ warned the claimant of the real consequences of her actions. He did not threaten her job.[151]In our judgment, this allegation is therefore not made out. We do accept that the comments were not welcomed by the claimant. She was opposed to VCOD and resistant to any consequences of it. That does not mean that the respondent committed harassment through RJ.[152]This allegation is not made out. It is also significantly out of time. The claimant makes clear she was unhappy with the conversation in her grievance raised. She says, and we accept, that she lost trust in the respondent and RJ at the time. In our view, if she considered this was harassment, she could have brought the claim in time. In those circumstances, and particularly where the claim would fail, we decline to extend time. It would not be just and equitable to do so. 32 of 42[153]This part of the claim fails because it is beyond the jurisdiction of the Tribunal. Even if it was in time, it would fail because we find as a fact that RJ did not do what was alleged. In or around January 2022, RJ informing the claimant that: (A) The respondent had issues with her vaccination status;[154]We found that RJ did tell the claimant that both he and the respondent had issues with the claimant’s vaccination status. His issues were personal to himself but also, as he explained, causing a problem with other members of staff. RJ explained to the claimant that her contract move would be affected by her vaccination status because she needed to comply with VCOD to be appointed to a new contract according to respondent policy (and ultimately to comply with the law). We accept this can be interpreted as an ‘issue’.[155]We accept that this was unwanted conduct from the claimant’s perspective. She plainly did not agree with VCOD and was resistant to its implications if she did not get vaccinated.[156]We have found that RJ did not know the claimant was in the process of trying to get pregnant. The claimant’s case is not that RJ intended to harass her in a way related to her age or her sex. It is about effect. That would require the claimant to persuade us that RJ informing her about those issues had the effect of violating her dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her. The claimant offered no evidence in chief about that. In our view, we cannot therefore conclude that the circumstances around this comment had that effect.[157]We have considered whether the claimant’s obvious upset over the VCOD implementation, at a time that she was experiencing personal difficulty, was sufficient evidence for us to conclude the comments had the effect of harassing the claimant in a way related to her age or sex. This seems to be the implicit submission from the claimant, that the whole run of circumstances had the effect of harassment. In our judgment, we are unable to take that leap. The claimant was upset and unhappy about a host of work related issues and, likely, non-work related issues at the time. It would be impermissible for us to ascribe those feelings to this allegations where the claimant has failed to make the link in her own sworn evidence.[158]Consequently, this claim could not succeed even if it was brought in time. It was (B) She was not a priority due to her vaccination status, with other more junior members of staff being prioritised[159]This allegation arises from the same meeting as the one set out above. RJ did tell the claimant that other members of staff needed to be prioritised. He explained that the claimant’s position on vaccination meant that she would be unable to work once the VCOD grace period ended. He committed to helping her reach the number of cases she required to remain registered in the meantime. Fundamentally, though, 33 of 42 we consider his responsibility was to the smooth running of the department. If, as both he and the claimant understood, she would be unable to work from 1 April 2022 onwards, it was good management practice to ensure that newcomers who would be able to work were properly up to speed by 1 April 2022. In the circumstances of the pandemic and the pressure on health services, we do not consider RJ’s approach should be criticised.[160]We accept that the comments were unwanted by the claimant. That would require the claimant to persuade us that RJ’s comments had the effect of violating her dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her. The claimant offered no evidence in chief about that. In our view, we cannot therefore conclude that the circumstances around this comment had that effect. For the same reasons as with the allegation above, we consider that the claimant needed to provide that link and evidence in chief in the hearing for us to be able to pinpoint her over-arching emotions to that allegation.[161]Consequently, this claim could not succeed even if it was brought in time. It was (C) She posed a risk to the department and she was throwing away her career;[162]RJ did tell the claimant that her vaccine status posed a risk. He did cast his opinion that the claimant was throwing away a long and viable career over her VCOD position.[163]The claimant contends that these comments were unwanted. We accept that the claimant did not want to be told that she was a risk to the department. In our view, there is not so clear an answer about RJ saying that the claimant was throwing away her career. It is clear from the transcript that this conversation was more nuanced that the claimant presents in her claim and her evidence. There is some back and forth and debate in the conversation. RJ and the claimant both agree they understand that it is not RJ or the respondent who are driving VCOD, which has the effect that RJ was describing. In our view, RJ was expressing a genuine opinion. On balance, though, the claimant’s evidence was that this was an unwanted conversation. Ultimately, the respondent did apologise to the claimant for RJ’s comments (it is not clear which comments, or whether it was all of them).[164]For those reasons, we accept the comments about throwing away her career were also unwanted.[165]That would require the claimant to persuade us that RJ’s comments had the effect of violating her dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her. The claimant offered no evidence in chief about that. In our view, we cannot therefore conclude that the circumstances around this comment had that effect. For the same reasons as with the allegations above, we consider that the claimant needed to provide that link and evidence in chief in the hearing for us to be able to pinpoint her over-arching emotions to that allegation. 34 of 42[166]Consequently, this claim could not succeed even if it was brought in time. It was In or around January 2022, RJ informing the claimant’s dissertation tutor that she was throwing away her career by not getting the vaccination[167]This was not an allegation which we found as a fact. In our judgment, RJ did not inform the claimant’s dissertation tutor about her vaccination status. We are not satisfied that the tutor told the claimant that she was ‘throwing away her career’ either. Where the underlying factual allegation is not found, there can be no harassment flowing from it.[168]Consequently, this claim could not succeed even if it was brought in time. It was February – March 2022, the respondent failing to allocate on call work to her due to her vaccination status causing the claimant financial loss of around £200[169]We found the claimant was excluded from the on-call rota. We have found that the respondent considered she was so excluded because of her relationships with others. We accept that proposition.[170]Even so, the claimant needed to persuade us that the removal had the effect of violating her dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her. The claimant offered no evidence in chief about that. In our view, we cannot therefore conclude that the circumstances around this comment had that effect. For the same reasons as with the allegations above, we consider that the claimant needed to provide that link and evidence in chief in the hearing for us to be able to pinpoint her over-arching emotions to that allegation.[171]Consequently, this claim could not succeed even if it was brought in time. It was The respondent denying evidence of bullying and harassing behaviour, during the grievance procedures[172]In our view, the respondent investigated the claimant’s allegations of bullying and harassment and concluded that there had been none. One of the reasons it did that was because the witnesses interviewed did not offer Ms Batty any evidence that bullying or harassment had taken place. The only evidence the respondent had was the claimant’s allegations. In our judgment, the respondent did not deny that evidence. It investigated the allegations and made an assessment upon doing an investigation. It accepted that, on the claimant’s evidence, lessons could be learned. It apologised for some of the comments made. However, it also discovered allegations against the claimant. It had no other witness confirm the claimant’s allegations. 35 of 42[173]In our judgment, the respondent did not deny evidence of bullying and harassing behaviour. It denied that the evidence it accepted crossed the threshold into bullying and harassing behaviour, but it did not deny the evidence itself. This is an important distinction. It seems to us that the complaint is really about the respondent not agreeing that the claimant’s account met the threshold of bullying and harassment. That is not how this claim is phrased. In our view, the factual allegation was not made out.[174]Even if it was, there was no evidence presented of the effect of any denial on the claimant. This meant that the statutory definition of harassment could not be fulfilled.[175]Even if it could have been, we consider the respondent conducted a reasonable investigation in to the allegations and weighed the competing evidence appropriately, forming a reasonable conclusion which, having seen the transcripts themselves now, we broadly agree with. What that means is that, even if the claimant had established effect, we consider it was not reasonable in all the circumstances for the claimant to feel that way. Her reaction is an example of the over-reaction and exaggerated interpretation that(1) we found permeated her evidence, and(2) others identified in the claimant at Ms Batty’s page 331 summary.[176]Consequently, this claim could not succeed even if it was brought in time. It was RJ explicitly denying that the conversations at 4.4.1.2 took place[177]These allegations were not raised with RJ by Ms Batty because the meeting where these comments were made was not included in the claimant’s stage 1 grievance form. In our judgment, then, these were not matters which were properly part of her grievance. They were not addressed for that reason, and so we do not consider that RJ explicitly denied these allegations.[178]RJ did, though, blanket deny bullying and harassment. This was unwanted conduct. The claimant says, and we accept, that this had a significant personal effect on her, which meant that she could not get out of bed for a week and that she felt gaslit by her management. In our judgment, this goes beyond the Grant threshold of mere upset. The claimant was clearly devastated by the grievance outcome. In our judgment, the effect of the denial of bullying and harassment from her manager did make her feel as though she was working in a hostile or degrading environment.[179]However, we have not found that RJ bullied or harassed the claimant. It is not apparent to us on the balance of probabilities after considering the transcript and the respondent’s evidence. We are cautious about the claimant’s evidence, accepting that she felt the way she said but not accepting her interpretation of events which led her to feel that way.[180]Where we have found no underlying bulling or harassment, it is not unreasonable for RJ to have denied making such comments in the manner the claimant accused him of. That is perfectly normal and appropriate. In those circumstances, we consider that the effect on the claimant was not reasonable through the lens of a harassment 36 of 42 claim. The claimant cannot be harassed by something which is objectively normal and appropriate. There is no harassment here.[181]Consequently, this claim could not succeed even if it was brought in time. It was The respondent not reflecting that the claimant was offered redeployment as a nurse at the long-term sickness meeting on 23 March 2023, in the relevant outcome letter;[182]Ms Batty asked the claimant if she would consider redeploying as a nurse. The claimant said she was not. The suggestion was not carried forward and was not a possible proposal for redeployment. It was not referred to in the outcome letter. It was not included when the claimant asked for it to be included. The claimant says this is an act of harassment.[183]We are not clear what mischief there was for the claimant in the suggestion not forming part of the outcome letter. The claimant was not clear about this, and it seemed to us that she was unhappy about being asked about going back to being a nurse, and considered it was left out of the outcome letter because Ms Batty wanted to hide a suggestion to which the claimant has seemed to have taken some offence.[184]The claimant needed to persuade us that this issue had the effect of violating her dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her. The claimant offered no evidence in chief about that. In our view, we cannot therefore conclude that the circumstances around this comment had that effect. For the same reasons as with the allegations above, we consider that the claimant needed to provide that link and evidence in chief in the hearing for us to be able to pinpoint her over-arching emotions to that allegation.[185]In any event, we consider that the outcome letter was never intended to be a verbatim account of everything said in the meeting. It was a summary intended to capture what the claimant wanted in terms of next steps. In that way, the omission of a suggestion which was immediately abandoned strikes us as trivial in the scheme of Ms Batty’s efforts to try to find the claimant redeployment in line with what she wanted. It would not therefore be reasonable for the claimant to have been effected in the way required, even if she had evidenced it.[186]Consequently, this claim does not succeed. It was brought in time. 8 May 2023 – the respondent rejecting the claimant’s claim for NHS Injury Allowance based on misinformation provided by RJ.[187]It is a fact that the claimant’s injury allowance application was rejected because the illness was considered to have been triggered by events said to be bullying and harassment in a grievance which was not upheld. The grievance was not upheld, in part, because RJ had not confirmed that he had bullied or harassed the claimant.[188]We have not found as a fact that RJ provided any ‘misinformation’ to the respondent which led to the application being rejected. In our judgment, this allegation must fail for that reason. 37 of 42[189]In any event, the claimant has not provided any evidence about the effect of the rejection upon her.[190]This claim is not well founded for those reasons, and so it fails. This allegation was brought in time. Extensions to time limit[191]None of the allegations of harassment succeed. Any which were brought out of time are not within time because it is just and equitable to do so. We consider extending time would be unjust and inequitable. Where there have been no incidents of harassment found, there is no continuing act which could serve to bring out of time allegations within time. Related to sex or age[192]We have dealt with each harassment allegation without needing to deal with whether or not the allegations related to age or sex. In our judgment, the allegations fail whether or not the comments made or things done relate to a protected characteristic.[193]In her evidence, the claimant does not make a link between the matters alleged and a protected characteristic. That is not fatal to establishing a link, but it does mean that there are no background comments or states of affairs from interactions between the parties that might imply a link between the conduct and age or sex where one is not overtly plain to us.[194]In her written submissions, the claimant asserts that her telling RJ on 29 December 2021 that she ‘might’ have an exemption, and his reference to a pregnant colleague, was sufficient to establish that: 194.1. RJ knew the claimant might be pregnant; 194.2. RJ therefore knew that the claimant’s objections were because of pregnancy; 194.3. Only women get pregnant; and 194.4. Most pregnant women are in the claimant’s 18-44 age group.[195]The claimant submits that we should consider that the comments around the medical exemption should be construed in line with the Ha principle that where behaviour or comments are inherently related to a protected characteristic, we should find that they are related.[196]We are not persuaded by the claimant’s submission. The comments in conversation do not cover the same principle as Ha. We might think differently if RJ’s comments were more explicitly about pregnancy, which is quite plainly something related to sex, and likely to be considered something related to age. In this case, there are any number of reasons why the claimant might be medically exempt which have nothing to do with pregnancy or a protected characteristic. 38 of 42[197]However, we do consider that s136 applies to the analysis. The claimant does make a comment about medical exemption. RJ does respond with a comment about a pregnant colleague. The claimant then complains about conduct following which she says is related to age or sex. In our view, the claimant has, in that matrix, established facts from which we could conclude RJ knew the claimant was referring to pregnancy, and so knew her vaccine stance was because of her sex and her age. RJ did not give evidence. Although we consider, from all of the evidence, he was motivated by a desire to keep his department running and from self-protection, we cannot (without his evidence) decide that age or sex had nothing to do with the allegations made. For that reason, if we had found any of RJ’s conduct was harassment (which we have not), we would conclude they were to do with age or sex.[198]Although it was not the focus of the claimant’s complaints or concerns, Ms Batty and the subsequent respondent witnesses did know there was a link for the claimant between her VCOD stance and the issue of pregnancy and fertility. In our judgment, this was not something the claimant focused on at all in her grievance, although we accept she did share information about it with Ms Batty prior to bringing her grievance. We accept that only women become pregnant. We accept that it is far more likely that a women aged 18-44 would be pregnant than those younger or older than that age group. For those reasons, we accept also that any such conduct (if found) would be related to age or sex.[199]Plainly, this is a moot point having found there was no unwanted conduct which could constitute harassment if related to a protected characteristic. However, for completeness, we considered we needed to answer this question. Constructive dismissal Harassment allegations[200]No harassment has been found in this case. It follows that there cannot have been a fundamental breach of the employment contract caused by the respondent harassing the claimant.[201]Although we consider it outside the scope of the claim, we also consider that none of the allegations would themselves amount to a fundamental breach of contract outside of them being harassment.[202]This part of the claim is not well-founded and is dismissed. Grievance allegations[203]We must consider whether the respondent breached the implied term of mutual trust and confidence by(1) not taking her vaccine and fertility concerns seriously, and/or(2) failing to deal with the bullying and harassment the claimant said she suffered from. When considering whether there has been a breach, we are considering if the respondent without proper cause acted in a way which would seriously damage or destroy the implied term. 39 of 42[204]First, we consider the respondent completed a reasonable grievance process. The claim characterises the grievances as being three in number. In our judgment, that is slightly misleading. The claimant raised a grievance. She was unhappy with how it was dealt with so she appealed it and asked for it to be considered again. She was unhappy with that first appeal so she embarked on a second one at a stage 3 grievance. She was not happy with the second appeal either. In our judgment, the right way to think about it is as one grievance which was appealed twice.[205]The claimant’s stage 1 grievance was narrative in form but narrowly put. It complains about specific interactions and behaviour done to her, which she says was caused by her vaccine status. In our judgment, Ms Batty did all that is reasonably expected. She spoke to the claimant to clarify the issues. Neither clarified theme was about her concerns over vaccine and fertility. She spoke to the witnesses identified and also came across additional evidence which cast some responsibility on the claimant for the situation at hand. There was no evidence supporting the claimant’s claim she had been bullied or harassed. It is unusual she did not take notes, but in our view notes are not a mandatory requirement and it has not affected the credibility of her evidence before us. Ms Batty then balanced the evidence heard and came to a reasoned conclusion which, in our view accurately, entwines both sets of evidence in to a coherent and probable conclusion. Nothing there strikes us as unreasonable or something which would objectively speaking threaten the implied term of mutual trust and confidence.[206]The claimant was unhappy with the outcome. In our judgment, she was likely to always be unhappy because her required outcome was beyond Ms Batty’s control. The process was not going to discipline RJ or anyone else. It was a grievance meeting.[207]The claimant appealed to stage 2. In doing so, she gave a little more detail in her narrative about the matters she was complaining about. She did not provide any further thoughts or evidence about vaccination and fertility. Mr Falk was not therefore to be expected to consider those concerns in his appeal. Mr Falk considered, as we do, that Ms Batty had reasonably explored the issues in the grievance and upheld Ms Batty’s work. The claimant appealed to stage 3, explicitly without offering anything new, and received the same outcome again. In our judgment, that was reasonable. The claimant effectively asked the respondent to reach a different decision with the same evidence. In our view, there is no threat to the implied term in the respondent’s handling of the second and third stage grievances.[208]Stepping back, we found as a fact that there was no bullying and harassment. It is therefore not going to destroy or seriously damage the implied term for the respondent to confirm there had been none in the grievance processes. Even if it was, we consider the respondent had proper cause in confirming so because that is what it reasonably found on the evidence. In any case, the claimant’s case completely overlooks the fact that the respondent was considering redeploying the claimant after she went of sick saying she could not work in the team anymore. Those concerns the claimant had about bullying, although unfounded, were responded to in that the respondent was actively considering moving her out of the team at the time she resigned. In our view, this undermines the claimant’s claim further. 40 of 42[209]In our judgment, the respondent did take the claimant’s concerns about the vaccine as seriously as it was able. It was bound to work to implement VCOD for as long as the law was in force. Everything it did in making that happen it did with proper cause in an effort to comply with legislation. In our view, there can be no constructive dismissal claim founded on these facts which is about the VCOD implementation. Further, the claimant does not raise the reasons for her vaccination status in the stage 1 grievance. It is not part of the conversation between the claimant and Ms Batty in the grievance process. It is not added in in subsequent stages. Consequently, in our view, the respondent’s lack of exploration of the confirm cannot be criticised. There is no breach of the implied term over this issue. For completeness, we do note that the respondent acknowledged the claimant’s concerns about the vaccination and VCOD in the stage 3 outcome. They were not entirely ignored. Conclusion on constructive dismissal[210]It follows that, in our judgment, there was no fundamental breach of contract which would allow the claimant to end the contract and claim constructive dismissal. We make that conclusion without hesitation, considering whether there were any cumulative breaches or any over-arching breach made up of matters which are part of the claim. The matter does not get close to events giving rise to constructive dismissal, on an analysis of the evidence and arguments put before us in the hearing.[211]In any case, even if there had been a breach, we consider that the claimant would not be entitled to claim constructive dismissal. We accept the claimant resigned in response to the matters which were set out in her resignation letter. However, on any view, the resignation was not an immediate termination of contract. The claimant gave notice. We accept this does not automatically mean a claimant has waived a breach or affirmed the contract, but in this case the claimant did two things which we consider would be fatal to this claim:- 211.1. First, the claimant sought redeployment within the trust after the matters she resigned in response to occurred. The stage 3 outcome, the last in the series of events the claimant references in her resignation letter, was received on 28 February 2023. Despite this apparently being a fundamental breach of the employment contract, the claimant attended a sickness absence meeting with Ms Batty on 23 March 2023. In that meeting, she actively asked for redeployment as a perfusionist within the trust. In other words, she was asking for her employment contract with the respondent to continue, albeit at a different location. We do not consider that this is consistent with the claimant having no trust and confidence in the respondent as her employer. It is certainly not consistent with treating the contract as being at an end in response to fundamental breach. In our view, this goes beyond trying to resolve an issue and strays into waiving any breach and affirming the contract prior to resignation. 211.2. Second, the claimant pursued NHS Injury Allowance up until her application was rejected on 3 May 2023. In doing so, she was requiring the respondent to deal with an application which she only had the right to make, and the respondent only had the obligation to consider, on the basis that her employment contract was continuing. In our judgment, this is also inconsistent with the claimant treating the employment contract as being at an end in 41 of 42 response to a fundamental breach. We consider the claimant was seeking to hold the respondent to the terms of the contract. On balance, we consider that this also would have waived a breach, if there was one, and affirmed the contract prior to resignation.[212]For all of these reasons, the constructive dismissal is not well founded and is dismissed. It falls at every hurdle. Overall disposal[213]All of the contested claims fail. In summary conclusion:- 213.1. The indirect age discrimination claim was inevitably going to be unsuccessful because of Schedule 22. In our judgment, given the plain wording of that schedule, this claim had no reasonable prospect of success. 213.2. The indirect sex discrimination claim failed because it was argued in a way which was confused and the required disadvantages were not properly identified. In any case, the respondent had a clear and obvious statutory defence in that pursuing VCOD was a proportionate means of achieving a legitimate aim. In light of various higher court authorities on this point which were decided between this claim being issued and the final hearing, there is an arguable point that the claimant ought to have realised that this claim was bound to fail. 213.3. No allegation of harassment succeeded. 213.4. The constructive dismissal claim comprehensively falls at every hurdle.[214]The wages claim succeeds by consent but remedy was not argued. There should be a remedy hearing in respect of the claimant’s wages claim, if that remedy cannot be agreed.[215]We apologise for the delay in this reserved judgment reaching the parties. The case is sensitive and complex. There was a delay whilst deliberations were convened. The Judge was then away from the Tribunal for an extensive period before this draft judgment could be finalised, checked, and then sent to the parties. REMEDY JUDGMENT Within 14 days, the respondent must pay the claimant the sum of £4,810.50 to account for its failure to pay the claimant for accrued but untaken holiday. Approved by: