Ms E Alegado v Guy’s and St Thomas’ NHS Foundation Trust: 2304871/2021 and Others

EMPLOYMENT TRIBUNALS

Case No 2304871/2021

Between

Ms E AlegadoClaimant

Guy’s and St Thomas’ NHS Foundation TrustRespondent

Before

Employment Judge Sudra

Mr. A. Crammond (instructed by Counsel) for claimant

Mr. N. Caiden (instructed by Counsel) for respondent

Date 18 March 2025

REASONS

[1]The Respondent is a NHS Trust in London and provides acute health services to the community. The Claimant had worked for the Respondent as a ‘bank’ worker from 19th June 2017 and on 3rd September 2018, she was employed substantively as a band 6 senior staff nurse in Photopheresis and Dermatology Skin Cancer Services. The Claimant’s employment terminated on 31st December 2021 upon her resignation.

[2]The Claimant presented three claims which have previously been consolidated: 2304871/2021 (‘First Claim’); 2301044/2022 (‘Second Claim’); and 2301368/2022 (‘Third Claim’). The dates of Acas early conciliation in respect of the claims are: Acas EC Day A Day B certificate number First Claim R155969/21/57 14.07.2021 25.08.2021 Second Claim R155969/21/57 14.07.2021 25.08.2021 Third Claim R134818/22/02 21.03.2022 23.03.2022

[3]The Respondent defended the Claimant’s claims by way of an ET3 and Grounds of Resistance on 25th October 2021, 26th April 2022, and 8th June 2022.

[4]The Respondent denies all of the Claimant’s claims. The complaints presented are therefore, as follows:4.1 National minimum wage discrimination;

4.2 unfair constructive dismissal;

4.3 protected disclosure detriments;

4.4 harassment related to race;

4.5 victimisation; and

4.6 unauthorised deductions of wages.

The Issues

[5]At a Preliminary Hearing on 4th April 2023, Employment Judge Taylor recorded the agreed List of Issues to be determined. On 4th May 2023, the Claimant wrote to the Tribunal and Respondent alleging that the recorded List of Issues was not an accurate reflection of the Claimant’s claims and certain aspects of her claims had been omitted from it. The Respondent, on 10th May 2023, replied to say that the Claimant was mistaken and the List of Issues as recorded by Employment Judge Taylor was, indeed, accurate and complete.

[6]On 29th November 2023, Employment Judge V. Wright write to the parties as follows, ‘The list of issues drawn up at the Preliminary Hearing on 4 April 2023 will be used. The Claimant’s proposed list of issues seeks to expand her claims. Employment Judge Taylor’s list has been drawn up in accordance with the overriding objective.’

[7]The Claimant wrote to the Tribunal on 6th December 2023 stating inter alia that the list of issues, ‘…impermissibly cuts down the Claimant’s claims as pleaded in her three ET1s and the statements of claim incorporated therein,…’ On the same day, the Respondent wrote to the Tribunal objecting to what it viewed as the Claimant adding to or amending the List of Issues. The Claimant wrote to the Tribunal, again, on 13th December 2023 stating that the List of Issues did not represent her pleaded claims and was unjust to her; the Respondent replied on 14th December 2023, robustly objecting to the List of Issues being altered and to the characterisation by the Claimant of what had occurred.

[8]On the first morning of the Hearing, we had considerable discussion with the parties in respect of what should, or should not, form part of the List of Issues and heard submissions from both Mr. Crammond and Mr. Caiden. For the purposes of determining a final agreed List of Issues, that part of the Hearing was converted to a private Case Management Hearing. Mr. Crammond and Mr. Caiden took a pragmatic view and coöperated with the Tribunal and each other and after further discussion, a definitive agreed List of Issues was arrived at and is reproduced here: ‘The Issues 1 National Minimum Wage Discrimination National Minimum Wage Act 1998 (Section 23 The right not to suffer detriment) 1 The claimant made a National Minimum Wage claim in a claim form presented on 19 September 2021.1.1 By requesting special leave in July 2020 to attend the tribunal hearing in respect of that claim was the claimant exercising, in good faith, a right to bring a minimum wage claim? If she was:

1.2 Did the respondent do the following things:1.2.1 Tell the claimant that she had breached confidentiality by requesting special leave to attend a tribunal hearing on 12 October 2020?

1.2.2 By doing so, did it subject the claimant to detriment?

1.2.3 If so, was the detriment for a reason connected with the national minimum wage? 2 Unfair constructive dismissal

2.1 Was the claimant dismissed?2.1.1 Did the respondent do the following things: Exclude, and continue to exclude, the claimant from working as Senior Staff Nurse in the Dermatology unit from on or about 1 September 2021. The Claimant relies in particular on this being shown by:

2.1.2 Did that breach the implied term of trust and confidence? The Tribunal will need to decide:2.1.2.1 whether the respondent behaved in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the claimant and the respondent; and

2.1.2.2 whether it had reasonable and proper cause for doing so.

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

2.1.4 Did the claimant resign in response to the breach? The Tribunal will need to decide whether the breach of contract was a reason for the claimant’s resignation.

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

a. around 1 September 2021 and thereafter (including on and after the date of the Claimant’s resignation), Ms Louise Farrow of the Trust (and/or the Trust’s other employee(s) or manager(s)) prevented and/or repeatedly prevented the Claimant from returning to her role/work in the Dermatology Department and/or failed to allow the Claimant to return to her role/work in the Dermatology Department and/or placed / redeployed her elsewhere;

b. from September 2021 onwards, Ms Farrow of the Trust (and/or the Trust’s other employee(s) or manager(s)) failed and/or repeatedly failed to provide a date for the Claimant to return to the Dermatology Department;

c. at some point prior to alleged communication from Matron Richards, the Trust (or its employee(s) / manager(s)) decided that the Claimant, on a permanent basis, was not going to be returned to her role/work in the Dermatology Department;

d. on or around 26 and 29 December 2021, the Trust advertised the Claimant’s job locally on the Trust’s website and nationally on Trac.jobs.website.

2.2 If the claimant was dismissed, what was the reason or principal reason for dismissal - i.e. what was the reason for the breach of contract?

2.3 Was it a potentially fair reason?

2.4 Did the respondent act reasonably in all the circumstances in treating it as a sufficient reason to dismiss the claimant? 3 Remedy for unfair dismissal

3.1 Does the claimant wish to be reinstated to their previous employment?

3.2 Does the claimant wish to be re-engaged to comparable employment or other suitable employment?

3.3 Should the Tribunal order reinstatement? The Tribunal will consider in particular whether reinstatement is practicable and, if the claimant caused or contributed to dismissal, whether it would be just.

3.4 Should the Tribunal order re-engagement? The Tribunal will consider in particular whether re-engagement is practicable and, if the claimant caused or contributed to dismissal, whether it would be just.

3.5 What should the terms of the re-engagement order be?

3.6 If there is a compensatory award, how much should it be? The Tribunal will decide:3.6.1 What financial losses has the dismissal caused the claimant?

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

3.6.3 If not, for what period of loss should the claimant be compensated?

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

3.6.5 If so, should the claimant’s compensation be reduced? By how much?

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

3.6.7 Did the respondent or the claimant unreasonably fail to comply with it by [specify alleged breach]?

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

3.6.9 If the claimant was unfairly dismissed, did s/he cause or contribute to dismissal by blameworthy conduct?

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

3.6.11 Does the statutory cap of fifty-two weeks’ pay or [£86,444]

3.7 What basic award is payable to the claimant, if any?

3.8 Would it be just and equitable to reduce the basic award because of any conduct of the claimant before the dismissal? If so, to what extent? Protected disclosure 4 The Claimant made and relies upon 2 protected disclosures, namely 1 June 2021 at 19:21 email (p.546-547) and 3 June 2021 at 21:20 email (pp.555-557). These two emails were sent by the Claimant to Ms Dhanoia, they informed her

(1) that the unit was understaffed and

(2) in an email, that a machine (EXTRA – extra corporeal photopheresis machine) was malfunctioning and should not be used as it posed a potential risk to patients. The Respondent accepted both these emails are protected disclosures. 5 Detriment (Employment Rights Act 1996 section 48)

5.1 Did the first respondent do the following things:5.1.1 On or around 12 June 2020, Ms Almeida made a complaint and unfair and false accusations / statements against the Claimant to Ms Dhanoia, including regarding speaking in own language;

5.1.2 On or around 18 August 2020, Ms Almeida made unfair and false allegations, and a formal complaint against the Claimant; and/or thereafter the Trust opened a formal bullying and harassment (B&H) investigation into the Claimant;

5.1.3 In or around October or November 2020, Ms Almeida made a new formal B&H complaint against the Claimant in which she made further unfair and false allegations against the Claimant;

5.1.4 In or around October or November 2020, Ms Perraut and/or other Trust manager included Ms Almeida’s new complaint and the unfair and false allegations within it in the ongoing B&H Investigation;

5.1.5 Between October 2020 and 16 April 2021, the Trust (and/or its employees / managers for whom it is liable) subjected the Claimant to a long B&H Investigation;

5.1.6 On 14 March 2021, Ms Erwin of the Trust concluded the B&H Investigation and produced her Investigation Report, but thereafter she, Ms Erwin, Ms Perraut, Ms Julie-Ann Gilmore and/or any other manager / employee of the Trust failed to provide the Claimant with the investigation outcome until 20 April 2021; and failed to provide the Investigation Report and its appendices timeously or at all; and failed to provide a full written response to the Claimant’s written concerns within any reasonable period of time;

5.1.7 On or around 20 April 2021, Ms Erwin sent an Outcome Letter dated 16 April 2021 to the Claimant that made unfair recommendations about the Claimant (including that the Claimant needed to develop her communication skills and that in the future mediation should be revisited / offered, despite it not being the Claimant who refused either); and/or the Trust failed thereafter to remove or reverse the recommendations made.

5.2 By doing so, did the first respondent subject the claimant to detriment?

5.3 If so, was it done on the ground that she made a protected disclosure? 6 Remedy for Protected Disclosure Detriment/National Minimum Wage Detriment

6.1 What financial losses has the detrimental treatment caused the claimant?

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

6.3 If not, for what period of loss should the claimant be compensated?

6.4 What injury to feelings has the detrimental treatment caused the claimant and how much compensation should be awarded for that?

6.5 Has the detrimental treatment caused the claimant personal injury and how much compensation should be awarded for that?

6.6 Is it just and equitable to award the claimant other compensation?

6.7 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures

6.8 Did the first respondent or the claimant unreasonably fail to comply with it?

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

6.10 Did the claimant cause or contribute to the detrimental treatment by their own actions and if so, would it be just and equitable to reduce the claimant’s compensation? By what proportion?

6.11 Was the protected disclosure made in good faith?

6.12 If not, is it just and equitable to reduce the claimant’s compensation? By what proportion, up to 25%? Harassment related to race (Equality Act 2010 section 26)

7.1 Did the respondent do the following things: 7.1.1 Investigate the claimant for speaking in ‘Filipino’ (correctly: Tagalog) with other Filipino colleagues in the workplace.

7.2 If so, was that unwanted conduct?

7.3 Did it relate to race?

7.4 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?

7.5 If not, did it have that effect? The Tribunal will take into account the claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.

7.6 Did the respondent treat the claimant less favourably because the claimant rejected or submitted to the conduct? Victimisation (Equality Act 2010 section 27)

8.1 Did the claimant do a protected act as follows:8.1.1 In January 2021 the claimant made an allegation that a member of staff had made racist remarks in an email to the investigation office (Ms Dawn Erwin).

8.1.2 On 18 March 2021 the claimant in an email to Ms J Gilmore of HR state that she should not be investigated for ‘speaking Filipino’ because that is racist.

8.1.3 In a letter dated 30 April 2021, addressed to Mr Daniel Waldron, Director, the claimant complained about being investigated for ‘speaking in Filipino’.

8.1.4 Email of 10 May 2021 to Julie Screaton (and via her Mark Hudson);

8.1.5 Email of 24 May 2021 to Julie Screaton (and via her Mark Hudson;

8.1.6 Email of 31 August 2021 to Louise Farrow;

8.1.7 Correspondence of 14 and 20 July 2021 with ACAS, which was forwarded to Mr Hudson;

8.1.8 Correspondence of 28 July 2021 with ACAS, which was forwarded to Ms Almeida, Ms Dhanoia, Ms Erwin, Ms Perraut and Mr Hudson;

8.1.9 the Claimant commencing ACAS Early Conciliation against the Trust, Ms Almeida, Ms Dhanoia, Ms Erwin, and Ms Perraut, all on 14 July 2021, and continuing the same until they all ended (with certificates issued) on 25 August 2021; and

8.1.10 The Claimant presenting and pursuing an Employment Tribunal complaint, including claims of race discrimination, harassment and victimisation, on 19 September 2021 and thereafter against the Trust, Ms Dhanoia and Ms Perraut.

8.2 The respondent accept that that allegation made in January 2021 can constitute a protected act and that any complaints made on that theme after that date were a repetition of the allegation. The claimant will say that she repeated the allegation several times and each separate allegation was a protected act.

8.3 Did the first respondent do the things set out and listed at paragraph 2.1.1 (above) and relied upon as being the alleged repudiatory breach of contract (namely: Exclude, and continue to exclude, the claimant from working as Senior Staff Nurse in the Dermatology unit from on or about 1 September 2021 and the matters listed in paragraph 2.1.1).

8.4 By doing so, did it subject the claimant to detriment?

8.5 If so, was it because the claimant did a protected act?

8.6 Was it because the first respondent believed the claimant had done, or might do, a protected act?

[9]Remedy for discrimination or victimisation9.1 Should the Tribunal make a recommendation that the respondent take steps to reduce any adverse effect on the claimant? What should it recommend?

9.2 What financial losses has the discrimination caused the claimant?

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

9.4 If not, for what period of loss should the claimant be compensated?

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

9.6 Has the discrimination caused the claimant personal injury and how much compensation should be awarded for that?

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

9.8 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures

9.9 Did the respondent or the claimant unreasonably fail to comply with it by [specify breach]?

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

9.11 By what proportion, up to 25%?

9.12 Should interest be awarded? How much?

[10]Unauthorised deduction of wages10.1 Did the respondent make unauthorised deductions from the claimant’s wages and if so, how much was deducted?

10.2 Were the wages paid to the claimant for bank work on 10 November 2021 less than the wages she should have been paid?

10.3 The claimant will say she was required to leave work earlier than had been booked by her line manager Ms Dhanoia. If applicable, how much is the claimant owed? Procedure and Evidence 9. The Tribunal was provided with:

(i) A bundle consisting of 1330 pages;

(ii) a supplementary skeleton argument from the Claimant; and

(iii) a cast list. 10. The Tribunal had witness statements and heard oral evidence from: For the Claimant (i) The Claimant; For the Respondent (ii) Harwinder Dhanoia; (iii) Erica Almeida;

(iv) Marielle Perraut;

(v) Dawn Erwin;

(vi) Julie-Anne Gilmore;

(vii) Mark Hudson; and

(viii) Louise Farrow. The Claimant and Respondent provided written closing submissions, supplemented by oral submissions, at the conclusion of the evidence. The Tribunal notified the parties at the outset of the Hearing that they would only read documents that they were specifically referred to and would only read documents referred to in witness statements insofar as they were relevant. Relevant Findings of Fact

[11]The following findings of fact were reached, on a balance of probabilities, having considered all of the evidence given by witnesses during the Hearing, including the documents referred to by them, and taking into account the Tribunal’s assessment of the witness evidence.

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

[13]The Respondent is a publicly funded NHS organisation providing acute health services to the local community. The Claimant began work with the Respondent as a band 6 senior staff nurse in Photopheresis and Dermatology Skin Cancer Services on, 27th August 2018. On 30th December 2021 the Claimant resigned from her role and her employment terminated [1247]. The Claimant describes herself as a British citizen of Filipino origin.

[14]The Claimant worked on the Respondent’s dermatology ward. On 28th March 2019 the Claimant submitted an ET1 claim form complaining of a breach of the National Minimum Wage Act 1998 by the Respondent. This claim was dismissed subsequent to a Final Hearing which was heard on 12th to 15th October 2020 [1]. Good Friday Incident

[15]On 10th April 2020, the Claimant was left alone with a patient, who was on Extracorporeal photochemotherapy (‘ECP’) by staff nurse Irene Chavez. Ms. Chavez had left the Claimant alone so she could attend to a sick colleague (and to do this, she took oxygen from the unit without signing it out). This could have been a breach of the Nursing and Midwifery Council (‘NMC’) code as the ECP required two staff members to be present at all times.

[16]Joanna Magsino (clinical nurse specialist) informed Harwinder Dhanoia (clinic sister) of what had occurred. Ms. Dhanoia line-managed the Claimant. On 16th April 2020 Ms. Dhanoia met with the Claimant, Ms. Chavez and Erica Almeida (health care assistant) regarding the incident on Good Friday, as she wanted to understand what had happened and who was in charge of the ECP. Ms. Dhanoia stated that Ms. Chavez’s actions could be a serious breach of the NMC code but made clear that she was not blaming anybody.

[17]On 19th April 2020, the Claimant emailed Ms. Dhanoia to say that she and Ms. Chavez had acted compassionately and that she did not agree that their actions were in breach of the NMC code. In the email, the Claimant’s was defiant in her assertion that she had done anything wrong and that the NMC code had not been breached. The Claimant went so far as to ask that Ms. Dhanoia withdraw her allegation and concede that the Claimant had acted within the NMC code. Ms. Dhanoia informed Ann Bowrin-Soyer (matron) of what had occurred and the tone of the Claimant’s email; Ms. Bowrin-Soyer advised Ms. Dhanoia that she would arrange a team-meeting to discuss the incident.

[18]On 23rd April 2020, a team-meeting was held and amongst those present were: Ms. Bowrin-Soyer; the Claimant; Ms. Chavez; Ms. Dhanoia; and Ms. Almeida. The Good Friday issue was discussed and Ms. Bowrin-Soyer emphasised that whilst she accepted that Ms. Chavez and the Claimant had acted with good intentions, in future, they should consider acceptable working practises if a similar incident arose. Ms. Bowrin-Soyer’s advice was appropriate and reasonable bearing in mind the circumstances.

[19]The Claimant was not happy with the outcome of the team-meeting and complained to Manda Mootien (matron) on 26th April 2020 [534]. The Claimant alleged that Ms. Dhanoia had accused her of breaking the NMC code and that she wished to make a formal complaint regarding this. The Claimant’s complaint was dealt with by Ms. Bowrin-Soyer who wrote to the Claimant on 27th April 2020. Ms. Bowrin-Soyer explained to the Claimant that at the meeting on 16th April 2020, there was no accusation made towards the Claimant and that when the Claimant had been given an opportunity to raise any matters at the team meeting on 23rd April 2020, she had declined to do so. Protected Disclosures

[20]On 1st June 2020, the Claimant sent an email to Ms. Dhanoia raising a concern about safe staffing levels; this was the Claimant’s first protected disclosure [546-547]. Ms. Dhanoia responded to the Claimant on 3rd June 2020. In her response, Ms. Dhanoia thanked the Claimant for her email and explained that the staffing shortage was due to staff sickness and some staff having to isolate due to COVID-19. Ms. Dhanoia asked the Claimant to inform her, by 10th June 2020, if she would like to discuss the matter further. On 3rd June 2020 at 10.06am, the Claimant emailed Ms. Dhanoia asking her to clarify what she had meant by the phrase ‘I also believe staff where (sic) given training where required.’

[21]On 5th June 2020 Ms. Dhanoia further responded to the Claimant thanking her for bringing the staffing level matter to her attention and that the Respondent were striving to address the issue in what were challenging circumstances.

[22]The Claimant made a second protected disclosure on, 3rd June 2020 at 21.20pm [555-557]. The Claimant informed Ms. Dhanoia that on 2nd June 2020, an ECP machine had malfunctioned resulting in a patient’s treatment having to be aborted. The Claimant outlined what she called her ‘two main concerns’ relating to health and safety and stated that she had tried to bring the matter to Ms. Dhanoia’s attention but that Ms. Dhanoia was not interested.

[23]Ms. Dhanoia responded to the Claimant’s second protected disclosure on 5th June 2020 [553]. By way of a response, Ms. Dhanoia took the approach of copying the Claimant’s text and added a response paragraph by paragraph. It was agreed that the Claimant highlighted that an ECP machine was defective and this was reported to the engineer straightaway by Ms. Dhanoia. As Ms. Dhanoia was new to ECP, she encouraged the Claimant to give her guidance or advice and put in place corrective measures such as retraining. Ms. Dhanoia thanked the Claimant for raising her concerns and advised that a team meeting to ‘reflect’ on the issue.

[24]On 5th June 2020, Ms. Almeida emailed Ms. Dhanoia with concerns she had regarding the Claimant [548]. When working together on the same shift, Ms. Almeida complained that the Claimant had called Ms. Almeida a ‘liar,’ had ignored her, referred to her as ‘she,’ excluded her from discussions, and in clinical areas, would speak in Filipino (Tagalog) with other Filipino colleagues thereby, excluding Ms. Almeida.

[25]At a one-to-one meeting [550] between Ms. Dhanoia and Ms. Almeida on 12th June 2020, Ms. Almeida discussed the concerns she had raised about the Claimant in her email of 5th June 2020 [548]. Ms. Dhanoia suggested to Ms. Almeida that she try to speak with the Claimant about her concerns, in the first instance, and Ms. Almeida agreed to do this. Ms. Almeida raised the issues she was having with the Claimant as she felt upset by the Claimant’s actions, which included the Claimant speaking in her own language, to other Filipino colleagues, when Ms. Almeida was present, and that this made her feel uncomfortable, understandably, as she did not know what was being said. When Ms. Almeida met with Ms. Dhanoia on 12th June 2020, she was not aware of the Claimant’s protected disclosures. National Minimum Wage

[26]On 19th July 2020, the Claimant emailed Ms. Dhanoia asking for special leave for the week commencing 12th October 2020 so that she could attend an Employment Tribunal matter she was the Claimant in.

[27]After seeking advice from HR, Ms. Dhanoia emailed the Claimant on 22nd July 2020 and confirmed that she would be granted paid leave from 12th to 15th October 2020 (which, as it transpired, she was). On 11th and 12th August 2020, when the Claimant had 1-2-1 meetings with Ms. Dhanoia, Ms. Dhanoia reminded her to keep the details of her Employment Tribunal matter confidential and not to divulge the names of colleagues involved. Formal Complaint Against the Claimant

[28]The concerns Ms. Almeida had about the Claimant were not resolved and on 18th August 2020, Ms. Almeida made a formal complaint about the Claimant to Ms. Dhanoia [617]. Even at this point, Ms. Almeida was not aware of the Claimant’s protected disclosures. In the first instance, Ms. Dhanoia tried to deal with Ms. Almeida’s complaint via an informal resolution, however, this was not successful as the Claimant did not meaningfully engage. The Claimant was off-work on sick leave from 21st September 2020 until 13th October 2020.

[29]Ms. Dhanoia believed that the complaint made by Ms. Almeida was sufficiently serious to merit an investigation and sought to identify an appropriate investigating officer. Due to the extant legal claim brought by the Claimant, Ms. Dhanoia experienced delays in sourcing an impartial investigating officer and sought assistance from Marielle Perraut (Former Deputy Head of Nursing Special Ambulatory Services) in order to do so. On or around 13th October 2020, Dawn Erwin (clinical sister) was identified as the appropriate person to investigate Ms. Almeida’s complaint against the Claimant .

[30]On 20th October 2020, Ms. Almeida attended her shift at around 8.30am and witnessed the Claimant having a conversation with other colleagues. The conversation was about a legal matter that the Claimant was involved in with Matron Manda. Ms. Almeida asked the Claimant what the conversation was about and the Claimant intimated that Ms. Almeida should already know as she had complained about her. Ms. Almeida felt that the Claimant was acting in an intimidating and inappropriate manner so she emailed a complaint to Ms. Dhanoia on, 21st October 2020 [660].

[31]Also on 20th October 2020, Ms. Erwin met with Ms. Almeida to discuss her complaint. After hearing the particulars of Ms. Almeida’s complaint about the complaint she had made on 18th August 2020, Ms. Erwin agreed that the terms of reference should be:(a) In around June 2020 Elena called Erica a liar in earshot of patients and when asked about this, Elena laughed at Erica and walked away;

(b) Elena refused to help with Covid-19 swabs and said 'she can do them', pointing at Erica; and

(c) Elena was abrupt, rude, excluded her from team meetings and made her feel that she was not part of the team. Elena further excluded Erica by speaking in Filipino with Filipino colleagues potentially about work matters and updates which Erica needed to be aware of.

[32]During the meeting between Ms. Erwin and Ms. Almeida, Ms. Almeida told Ms. Erwin about what had taken place between her and the Claimant earlier that day i.e. that she had felt intimidated and concerned about the Claimant’s behaviour towards her when she had arrived for her shift. Ms. Almeida did not want the matter dealt with informally so Ms. Erwin confirmed that she would formally investigate the complaint about events on 20th October 2020 too. Investigation by Ms. Erwin

[33]On 31st October 2020, Ms. Erwin wrote to Ms. Almeida with her understanding of the allegations that she had made. In addition to the allegations at paragraph 25 (a) to (c) (supra.) Ms. Erwin had added a fourth complaint following Ms. Almeida’s complaint about events that she had occurred on 20th October 2020 i.e. ‘4 On 20 October 2020, you came upon a conversation between Elena and several colleagues discussing a confidential legal matter that Elena was involved in, and of which you had no prior involvement. You felt that Elena was speaking to you in a manner that was very intimidating and inappropriate. She said your name had appeared in this legal matter, and accused you of making a complaint about her and calling her a ‘Bad Person.’ [674]

[34]Ms. Erwin went about investigating the bullying and harassment complaints about the Claimant and emailed Ms. Magsino, Ms. Chavez, and Baljinder Kaur asking them to provide her with their telephone number and advise when a convenient time would be for a discussion. Ms. Erwin advised that the matter was confidential and that it should not be discussed with colleagues.

[35]Of the three staff members Ms. Erwin had emailed, only Ms. Magsino responded and she spoke with Ms. Erwin on 10th November 2020. Ms. Magsino relayed to Ms. Erwin that on 20th October 2020, the Claimant was in an emotional state and was openly discussing a court case with colleagues and continued to do so despite Ms. Magsino telling the Claimant to desist as the matter was confidential. Ms. Magsino went on to tell Ms. Erwin that when Ms. Almeida arrived on the ward, the Claimant said to her, ‘Your name was on the court case but then disappeared’ and called Ms. Almeida a ‘bad person.’

[36]As the Claimant was off-work sick (she had been on sick leave since 22nd October 2020) Ms. Magsino emailed Ms. Dhanoia, on 25th November 2020, and asked if it would be appropriate to contact the Claimant whilst she was on sick leave and stated that she was anxious not to place the Claimant under undue stress. Ms. Dhanoia advised Ms. Erwin that the Claimant had not responded to any attempt made by Ms. Dhanoia to contact her.

[37]On 2nd December 2020, Ms. Erwin invited the Claimant to attend an investigation meeting scheduled for 2nd December 2020. On 7th December 2020 the Claimant responded to Ms. Erwin stating that whilst she was happy to attend a meeting, she would like it postponed to ‘within the next month or so’ as she was off-work sick. Ms. Erwin agreed to postpone the planned meeting and said that she would be in touch in the new year to arrange a meeting in January 2021.

[38]Ms. Erwin emailed the Claimant on 5th January 2021 and enquired if she was well enough to attend an investigation meeting. The Claimant sent Ms. Erwin a long response on 7th January 2021 making complaints about Ms. Almeida, including accusing Ms. Almeida of holding racist views, and denying the first three allegations against her. Ms. Erwin emailed the Claimant on 12th January 2021 asking if it would be suitable to meet with her on 2nd February 2021. The Claimant emailed Ms. Erwin on 28th January 2021 stating that she was happy to meet but only when her questions regarding the process and Ms. Almeida’s alleged conduct had been answered [754-756].

[39]The Claimant failed to attend the investigation meeting on 2nd February 2021 so Ms. Erwin re-scheduled it for 19th February 2021. On 15th February 2021, the Claimant again wrote to Ms. Erwin complaining that the Respondent’s process was not being followed, that the allegations against her were out of time, and queried the appointment of Ms. Erwin as investigating officer. On 16th February 2021, the Claimant sent Ms. Erwin another email sating that she was ‘unwilling to take part in any agenda-less, unstructured, open-ended exploration of Erica's allegations’ and that ‘I have already provided my full initial response to Erica's allegations. Please refer to my email of 7 January 2021, where I deny her allegations absolutely, and provide my brief version of the events of 20 October 2020. In the same email I also provide lots of relevant information on specific matters directly relating to Erica's allegations. I believe the information I have already provided should be more than sufficient for present purposes.’ The Claimant was thwarting the process and was uncoöperative. Investigation Outcome

[40]In light on the Claimant’s stance, Ms. Erwin decided to investigate the matter based on the Claimant’s written responses as it appeared that the Claimant was reluctant to attend interview. Ms. Erwin completed her investigation and produced a report on 29th March 2021. Ms. Erwin found that the allegations against the Claimant were not upheld and that there was no case for the Claimant to answer.

[41]Ms. Erwin wrote to the Claimant on 7th April 2021 and invited her to attend a meeting to discuss the outcome of the investigation to take place on 16th April 2021. The Claimant responded on 12th April 2021 with a lengthy email and posed several questions which she wanted Ms. Erwin to respond to. Ms. Erwin wrote to the Claimant on 16th April 2021 and confirmed that the complaints of bullying and harassment against her had not been upheld and informed the Claimant that her report had been shared with Ms. Perraut.

[42]In the outcome letter Ms. Erwin made a number of recommendations in respect of further training and support for the Claimant including developing communication skills and considering mediation. In light of Ms. Erwin’s detailed investigation and report, her recommendations were reasonable and helpful. Protected Acts

[43]Thee is no factual dispute between the parties that the Claimant did do the following protected acts; i. In January 2021 the claimant made an allegation that a member of staff had made racist remarks in an email to the investigation office (Ms Dawn Erwin). ii. On 18 March 2021 the claimant in an email to Ms J Gilmore of HR state that she should not be investigated for ‘speaking Filipino’ because that is racist. iii. In a letter dated 30 April 2021, addressed to Mr Daniel Waldron, Director, the claimant complained about being investigated for ‘speaking in Filipino’. iv. Email of 10 May 2021 to Julie Screaton (and via her Mark Hudson); v. Email of 24 May 2021 to Julie Screaton (and via her Mark Hudson; vi. Email of 31 August 2021 to Louise Farrow; vii. Correspondence of 14 and 20 July 2021 with ACAS, which was forwarded to Mr Hudson; viii. Correspondence of 28 July 2021 with ACAS, which was forwarded to Ms Almeida, Ms Dhanoia, Ms Erwin, Ms Perraut and Mr Hudson; ix. the Claimant commencing ACAS Early Conciliation against the Trust, Ms Almeida, Ms Dhanoia, Ms Erwin, and Ms Perraut, all on 14 July 2021, and continuing the same until they all ended (with certificates issued) on 25 August 2021; and x. The Claimant presenting and pursuing an Employment Tribunal complaint, including claims of race discrimination, harassment and victimisation, on 19 September 2021 and thereafter against the Trust, Ms Dhanoia and Ms Perraut.

[44]Following being on sick leave from 22nd October 2020, the Claimant briefly returned to work in January 2021, before again taking a long-term period of sickness absence from 9th January 2021.

[45]In August 2021, the Claimant was soon due to return to work from her long-term sickness absence. In order to prepare for this, Ms. Mootien requested the assistance of Louise Farrow (Head of Nursing, Specialist Ambulatory Services) as the Claimant did not wish to engage with Mesdames Mootien and Dhanoia. Ms. Farrow was aware that the Claimant had made various allegations against managers and colleagues on her ward so there were not very many appropriate people whom could provide the facilitation asked of Ms. Farrow. Redeployment

[46]At the time the Claimant was due to return to the dermatology ward, it was experiencing staffing issues and there were less senior staff on the ward who would have been able to oversee the claimant’s phased return to work. An added complication was that many of the Claimant’s colleagues, had had unsavoury allegations and complaints made against them by the Claimant which meant the dermatology ward would have been an uneasy and uncomfortable environment if the Claimant had returned there before working relations had ben resolved.

[47]Faced with these challenges, Ms. Farrow consulted the Respondent’s ‘Bullying and Harassment Complaints Procedure’ and decided that temporary redeployment away from the dermatology ward for the Claimant would be of mutual benefit to her and her colleagues.

[48]On 29th August 2021, the Claimant and Ms. Farrow spoke on the telephone and discussed the OH report recommendations of 13th August 2021 and any adjustments the Claimant may require when she returned to duties. The Claimant flagged to Ms. Farrow that she had been bullied and victimised in the dermatology ward which promoted Ms. Farrow telling the Claimant that she would be temporarily re-deployed whilst matters were resolved.

[49]On 27th August 2021, Ms. Farrow spoke with the Claimant via telephone and mentioned that there would be a return-to-work meeting, a phased return to work, and that the Claimant would be temporarily re-deployed, possibly to the Harrison wing. Ms. Farrow confirmed the conversation in an email to the Claimant sent the same day at 17.53pm.

[50]The Claimant wrote to Ms. Farrow on 31st August 2021 and rehearsed her earlier complaints of bullying by colleagues on the dermatology ward but also stated that she looked forward to returning to work and was satisfied with the proposed phased return to work plan. The Claimant returned to work on 1st September 2021 where she met Ms. Farrow for the first time. The Claimant again mentioned her concerns about bullying from colleagues in the dermatology ward and informed Ms. Farrow that she had raised a complaint which was being dealt with under the Respondent’s grievance procedure.

[51]On 5th September 2021, the Claimant emailed Ms. Farrow and changed tack. She said that she wanted to return to the dermatology ward ‘as soon as possible’ but that she would agree to temporary redeployment ‘…provided I first receive and review written information on all the important issues e.g. duration, job description, pay grade, skill level etc.’ [1095]. Ms. Farrow replied to the Claimant on 8th September 2021 and assured the Claimant that her redeployment to the Harrison wing was a supportive measure to ensure a safe and comfortable return to work.

[52]The Claimant attended a formal return-to-work meeting with Rosana Degala (sister) on 9th September 2021. On 14th September 2021, the Claimant emailed Ms. Farrow and re-iterated that she wanted to return to the ECP and wanted Ms. Farrow to provide her with a date on which she would return. The Claimant also stated that until she had returned to the dermatology ward she would not be able to meet with anybody to progress her grievance. The Claimant was being consciously unhelpful.

[53]On 17th September 2021 Ms. Farrow met with the Claimant for a welfare meeting. Ms. Farrow proceeded to tell the Claimant that it would be to her benefit to meet with Mark Hudson (senior HR consultant) to progress her grievance and eventually facilitate her return to the dermatology ward. The Claimant refused to discuss this as it made her feel stressed. The Claimant adopted a hostile tone with Ms. Farrow and stated that she wanted her to put everything in writing as Ms. Farrow had no right to meet with the Claimant ‘without an appointment’ [LF, para.12]. Unbeknown to Ms. Farrow, the Claimant had covertly recorded the meeting. Bank Shift

[54]On 8th November 2021, the Claimant booked a bank shift2 to work on the dermatology ward on 10th November 2021 (during the Claimant’s period of redeployment away from the dermatology ward). Ms. Dhanoia was alerted to the booking on the same day.

[55]As Ms. Dhanoia had already arranged sufficient staff cover for the dermatology ward for 10th November 2021, she cancelled the Claimant’s bank shift so that the unit did not have a glut of staff that day. When ones bank shift is cancelled a notification to this effect is supposed to be sent to the staff member affected. However, due to an administrative error, the Claimant did not receive notification of her bank shift on the dermatology ward being cancelled so she presented for her shift on 10th November 2021. 2 A ‘bank shift’ is akin to a shift undertaken via an agency, whereby NHS staff can work additional hours other than at their usual place of work.

[56]On 10th November 2025, upon Ms. Dhanoia becoming aware that the Claimant had attended for her shift (which had been cancelled) she notified the Claimant that the dermatology ward was sufficiently staffed and stated that she would not be required to work the shift.

[57]The Claimant left the dermatology ward and emailed Ms. Dhanoia the same day asking that she be paid for her cancelled shift in full. Ms. Dhanoia responded to the Claimant’s email a few hours later and confirmed that the Claimant would be paid for two hours for the cancellation of the shift but would not be paid for the entirety of the shift as she did not work it.

[58]That afternoon, Kevin Foster (staff bank nursing co-ordinator) emailed the Claimant to apologise for the miscommunication and re-iterated that ‘It is not Trust policy to issue anything more than the 2-hour cancellation fee and it will not be possible to be paid for the entirety of the shift.’ [1191]

[59]In or around late 2021, a staff member had resigned form their role on the dermatology ward resulting in a vacancy arising. Therefore, on or around the end of December 2021, the Respondent advertised the vacancy of the member of staff who had resigned and sought a person to recruit into that role (senior staff nurse – dermatology). On 29th December 2021, the Claimant became aware of the vacancy via a ‘Jobs-by-Email’ alert.

[60]The Claimant’s job had not been advertised, it was the role of the resigning member of staff whose job had been advertised. Resignation

[61]On 30th December 2021, the Claimant resigned from her employment. The Claimant stated that her reasons for resigning were:• Ms. Farrow did not want the Claimant to work in the ECP/dermatology unit;

• she had been subjected to a ‘6-month-long’ bullying and harassment investigation;

• she was re-deployed to another department (the Claimant conceded that she had agreed to re-deployment and was told it was to be temporary);

• her job in ECP/dermatology had been advertised;

• Ms. Farrow had deliberately misled the Claimant and that her re-deployment was permanent; and

• she was willing to work her notice period but was not ‘affirming either my unfair treatment or the employment contract.’

[62]Ms. Farrow acknowledged, and accepted, the Claimant’s resignation on the same day and emphasised that her post had not been advertised. Ms. Farrow also informed the claimant that her grievance complaint of bullying and harassment had not been upheld.

[63]The Claimant responded to Ms. Farrow on 3rd January 2022 and stated that her employment contract with the Respondent was at an end and that the termination date of her employment was, 30th December 2021.

[64]On 7th January 2022, Ms. Farrow wrote to the Claimant and explained that the respondent had not terminated the Claimant’s employment and sought clarification about the Claimant’s date of termination as the Claimant had initially stated that she would work a notice period but subsequently said that her employment contract terminated on 30th December 2021. Ms. Farrow also assured the Claimant that no decision had been made to permanently re-deploy the Claimant nor had a date been agreed for her return to the dermatology department. Finally, Ms. Farrow asked the Claimant to confirm by 14th January 2022 whether or not she would be working her notice period.

[65]The Claimant responded to Ms. Farrow on 10th January 2022 and confirmed that she would not be working her notice period as the Respondent ‘did not accept my offer.’ Ms. Farrow responded to the Claimant on the same day and explained that their had been no breach or repudiation of her employment contract, no decision had been made in respect of permanent re-deployment, and that she was willing to meet with the Claimant to discuss the outcome of her grievance complaint.

[66]The Claimant did not respond to Ms. Farrow’s letter so on 19th January 2022, Ms. Farrow wrote to the Claimant advising that as she had not stated what her last date of employment would be nor returned to work, her employment would be deemed terminated as of 30th December 2021. The Claimant responded to Ms. Farrow with a short email the same day setting out sums of monies she said was owed to her by the Respondent [1257]. Relevant Law3 Time Limits

[67]Section 48(3) of the Employment Rights Act 1996 (‘ERA’) states: ‘(3) An employment tribunal shall not consider a complaint under this section unless it is presented—(a) before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them, or

(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.’

[68]The burden is on a Claimant to prove that it was not ‘reasonably practicable’ to present a claim in time: Porter v. Bandridge Ltd

[1978] IRLR 271

(CA) at [12]. 69. s.123 of the Equality Act (‘EqA’) states: (1) Subject to proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or 3 We were grateful to both Mr. Crammond and Mr. Caiden for their helpful and fair statements of relevant case law and the statutory provisions. Whilst we have considered these, in the interest of brevity we do not restate every case or statute referred to by both Counsel but that is not to be taken to mean that all relevant law was not considered by us. (b) such other period as the employment tribunal thinks just and equitable. … (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.

[70]For a continuous course of conduct, something that is found to have been the relevant discrimination must be in time for it to render the out of time claims justiciable by virtue of ‘conduct extending over a period’ South Western Ambulance Service NHS Foundation Trust v King UEAT/0056/19.

[71]The onus is on a Claimant to show that discretion to extend time should be exercised on a just and equitable basis. There is no presumption to exercise the discretion and an extension of time is the exception not the rule as per: Robertson v Bexley Community Centre Auld LJ,

[2003] EWCA Civ 576

[2003] IRLR 434

at [25] Constructive Unfair Dismissal

[72]The test for constructive dismissal derives from the wording of s.95 ERA: (1) For the purposes of this Part an employee is dismissed by his employer if (and, subject to subsection (2) … only if) – … (c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.”

[73]That definition does not provide any guidance as to what those circumstances might be. The leading case is Western Excavating (ECC) Ltd v Sharp

1978 ICR 221

, CA, where the Court of Appeal held that, for an employer’s conduct to give rise to a constructive dismissal, it must involve a repudiatory breach of contract. As Lord Denning MR put it: ‘If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed.’ Protected Disclosures 69. In Williams v. Michelle Brown AM

UKEAT/0044/19/OO

at [9], HHJ Auerbach summarised the five issues, which a Tribunal is required to decide in relation to whether something amounts to a qualifying disclosure: ‘It is worth restating, as the authorities have done many times, that this definition breaks down into a number of elements. First, there must be a disclosure of information. Secondly, the worker must believe that the disclosure is made in the public interest. Thirdly, if the worker does hold such a belief, it must be reasonably held. Fourthly, the worker must believe that the disclosure tends to show one or more of the matters listed in sub-paragraphs (a) to (f). Fifthly, if the worker does hold such a belief, it must be reasonably held.’ 70. In order for a qualifying disclosure to be a protected disclosure it must be made in accordance with s.43C – 43H ERA. S.47B(1) ERA sets out: ‘(1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.’ Harassment Related to Race 71. S.26(1) EqA 2010 provides: ‘A person(a) (A) harasses another

(b) (B) if (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.’ 72. A similar causation test applies to claims under section 26 as described above to claims under section 13. The unwanted conduct must be shown ‘to be related’ to the relevant protected characteristic. 73. The shifting burden of proof rules set out in section 136 of the Act can be helpful in considering this question. The burden is on the claimant to establish, on the balance of probabilities, facts that in the absence of an adequate explanation from the respondent, show she has been subjected to unwanted conduct related to the relevant characteristic. If she succeeds, the burden transfers to the respondent to prove otherwise.

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

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

(b) the other circumstances of the case;

[76]The shifting burden of proof rules can be also be helpful in considering the question as to whether unwanted conduct was deliberate.

[77]Whilst the unwanted conduct need not be done ‘on the grounds of’ or ‘because of’, in the sense of being causally linked to, a protected characteristic in order to amount to harassment, the need for that conduct be ‘related to’ the protected characteristic does require a ‘connection or association’ with that; see Regina (Equal Opportunities Commission) v. Secretary of State for Trade and Industry

[2007] ICR 1234

QBD. Notwithstanding it was decided under the prior legislation including the formulation ‘on the grounds of’, the observations made by the EAT in Nazir v. Asim

[2010] ICR 1225

may still be of some relevance: ‘69 We wish to emphasise this last question. The provisions to which we have referred find their place in legislation concerned with equality. It is not the purpose of such legislation to address all forms of bullying or anti-social behaviour in the workplace. The legislation therefore does not prohibit all harassment, still less every argument or dispute in the workplace; it is concerned only with harassment which is related to a characteristic protected by equality law—such as a person’s race and gender.’

[78]In relation to the proscribed effect, although the Claimant’s perception must be taken into account, the test is not a subjective one satisfied merely because the Claimant thinks it is. The ET must reach a conclusion that the found conduct reasonably brought about the effect; see Richmond Pharmacology v. Dhaliwal

[2009] IRLR 336

EAT.

[79]Guidance on the threshold for conduct satisfying the statutory definition was given by the EAT in Betsi Cadwaladr University Health Board v. Hughes [2014] 2 WLUK 991; per Langstaff P (as he then was):10. Next, it was pointed out by Elias LJ in the case of Grant v HM Land Registry

[2011] EWCA Civ 769

that the words “violating dignity”, “intimidating, hostile, degrading, humiliating, offensive” are significant words. As he said: “Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment.”

11. Exactly the same point was made by Underhill P in Richmond Pharmacology at paragraph 22: “..not every racially slanted adverse comment or conduct may constitute the violation of a person's dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase.”

12. We wholeheartedly agree. The word “violating” is a strong word. Offending against dignity, hurting it, is insufficient. “Violating” may be a word the strength of which is sometimes overlooked. The same might be said of the words “intimidating” etc. All look for effects which are serious and marked, and not those which are, though real, truly of lesser consequence. Victimisation

[80]The test under s.27 EqA 2010 is as follows:(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.

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

[81]S.23(1)(a) of the National Minimum Wage act 1998 sets out the right not to suffer a detriment for having sought to enforce national minimum wage: ‘(1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer, done on the ground that— (a) any action was taken, or was proposed to be taken, by or on behalf of the worker with a view to enforcing, or otherwise securing the benefit of, a right of the worker’s to which this section applies; …’ Unauthorised Deductions from Wages

[82]S.13 ERA sets out: ‘(1) An employer shall not make a deduction from wages of a worker employed by him unless—(a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker's contract, or

(b) the worker has previously signified in writing his agreement or consent to the making of the deduction.’ Conclusions and Analysis Credibility of Evidence

[83]The Claimant was, and is, an intelligent individual who was committed to a career in nursing and was ambitious. This is admirable. However, pursuit of her goals sometimes skewed the Claimant’s perception and she viewed as sinister entirely innocuous and reasonable actions of colleagues and managers.

[84]In oral evidence, the Claimant was at times hesitant to accept as reasonable, management actions which were fair in the circumstances i.e. that English should be spoken on wards by staff and that personal and confidential matters (her previous Tribunal claim in particular) should not be discussed in public with colleagues.

[85]Whilst we do not find that the Claimant’s evidence to have been dishonest, it was, in aspects, mistaken and at times delusional due to the way the Claimant perceived her ex-colleagues. During cross-examination, the Claimant alleged that documents in the bundle had been fabricated when they clearly had not been. The Claimant was also speedy to accuse colleagues of being racist and malicious when she had no credible grounds to make such serious allegations.

[86]We found the Respondent’s witnesses evidence to be measured and cogent and where there was a dispute as to fact, we preferred the Respondent’s evidence. National Minimum Wage Discrimination

[87]On 19th July 2020, the Claimant emailed Ms. Dhanoia requesting approval for paid special leave in order to attend an Employment Tribunal hearing from 12th to 15th October 2020 [588]. The Claimant did not go into any specifics as to the reason for the Tribunal hearing or that she had made a claim for detriments under the National Minimum Wage Act 1998.

[88]Ms. Dhanoia responded to the Claimant on 22nd July 2020 and confirmed that she had acceded to the Claimant’s request and the Claimant was allowed paid leave from 12th to 15th October 2020; the Claimant thanked Ms. Dhanoia for granting her request.

[89]Ms. Dhanoia acted properly in the circumstances and there was no detriment to the Claimant and the respondent’s actions were not connected with the national minimum wage. Therefore, this claim fails. Unfair Constructive Dismissal

[90]On 30th December 2021, the Claimant resigned from her role with immediate effect [1248]. The reasons the Claimant citied for her resignation can be summarised thus:(i) The Claimant could ‘never’ return to her role in the dermatology department;

(ii) she had had a ‘very unfair 6-month-long Bullying and Harassment Investigation’ which had affected her health;

(iii) she was redeployed upon return to work from sick leave in September 2021; and

(iv) the Respondent had ‘deliberately misled me, and that my removal from the Dermatology Department is permanent. This is very unfair and a repudiation of the employment contract, and I am entitled to leave the Trust immediately.’

[91]It was untrue that the Claimant had been permanently redeployed and would ‘never’ return to the dermatology department. It was also not correct that the Claimant’s substantive role had been advertised internally and externally. Despite Ms. Farrow making this explicitly clear in a letter to the Claimant on 7th January 2022, the Claimant did not accept this and from the answers she gave in her oral evidence, still does not accept this.

[92]The Claimant was redeployed in September 2021 but did not resign until 30th December 2021. By not resigning soon after redeployment, the Claimant waived or affirmed any alleged breach of her employment contract. If we are wrong about this, due to our fact finding there was no fundamental breach of the implied term of trust and confidence entitling the Claimant to resign. This claim fails. Protected Disclosure Detriments

[93]It is accepted that the Claimant made two protected disclosures (emails to Ms. Dhanoia on 1st and 3rd June 2020 (see paragraphs 21 and 22 (supra.)). From our findings of fact, it is apparent that: 5.1.14

[94]Ms. Almeida’s informal complaint against the Claimant, made on 12th June 2020, was not connected to the Claimant’s protected acts. Ms. Almeida was genuinely aggrieved at the Claimant speaking with colleagues in Filipino as she felt excluded, bullied and harassed. Ms. Almeida was entitled to raise a complaint about a genuine belief she had and ultimately, the complaint against the Claimant was not upheld. 5.1.2 and 5.1.3

[95]Ms. Almeida made a formal complaint against the Claimant on 18th August 2020 and again in or around October/November 2020. For the reasons provided at paragraph 94 (supra.) in respect of Ms. Almeida’s informal complaint, Ms. Almeida’s actions do not constitute a detriment for having made a protected disclosure. 5.1.4

[96]This allegation was not a detriment as Ms. Perraut nor Ms. Erwin were aware of the Claimant’s protected acts. In we are wrong, Ms. Perraut was correct to include Ms. Almeida’s formal complaint, in respect of the Claimant, in the bullying and harassment investigation undertaken. 4 Of the List of Issues. 5.1.5

[97]It is correct that there were delays by the Respondent in concluding the bullying and harassment investigation regarding the Claimant. However, but the delays were not intentional or due to any protected disclosure but due to ‘the Covid-19 pandemic, increased clinical workload, staff working from home, sickness absence of Elena and the wider team and Elena's refusal to meet’ [DE, para.15]. 5.1.6

[98]The delays in providing the bullying and harassment investigation to the Claimant was due to Ms. Erwin seeking HR advice. Ms. Erwin provided Ms. Perraut with her investigation report on 30th March 2021 and it was the Respondent’s original intention for Ms. Perraut to present the investigation outcome tot the Claimant. However, it was then decided that it would be Ms. Erwin who advised the claimant about the investigation outcome and she did so on 16th April 2020. There was no detriment to the Claimant.

[99]Ms. Erwin did not share the investigation report and appendices with the Claimant as there was a finding that there was no case to answer by the Claimant and the material contained confidential matters. It was not the Respondent’s usual practise to share a confidential report with a member of staff who has been wholly exonerated. 5.1.7

[100]The recommendations made by Ms. Erwin in her outcome letter dated 16th April 2021, was not a detriment. Ms. Erwin was entitled to suggest training which was not mandatory and the Claimant was never forced to undertake the training recommended. This was not a detriment and in any event, Ms. Erwin was unaware of the Claimant’s protected disclosures.

[101]The Claimant was not subjected to any detriments for making protected disclosures and this claim fails. Harassment Related to Race

[102]In coming to our conclusion on this allegation we reminded ourselves of the Appellate Courts’ guidance that when considering the statutory language of s.27 EqA we should be mindful not to find it satisfied too easily. Violating dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment are not words which should be diluted and must be taken to mean what was intended by the legislature.

[103]The Claimant was investigated for speaking a foreign language at work and the Respondent had a duty to investigate the complaint (which was not upheld) and would have been remiss in that duty if they did not carry out an investigation.

[104]The Respondent’s actions cannot subjectively or objectively constitute harassment and this claim fails. Victimisation

[105]It is accepted that the Claimant did protected acts as listed at paragraphs 8.1.1 to 8.1.10 of the List of Issues.

[106]The Claimant relies on as detriments the matters contained at paragraph 2.1.1 of the List of Issues namely, 2.1.1 Did the respondent do the following things: Exclude, and continue to exclude, the claimant from working as Senior Staff Nurse in the Dermatology unit from on or about 1 September 2021. The Claimant relies in particular on this being shown by:a. around 1 September 2021 and thereafter (including on and after the date of the Claimant’s resignation), Ms Louise Farrow of the Trust (and/or the Trust’s other employee(s) or manager(s)) prevented and/or repeatedly prevented the Claimant from returning to her role/work in the Dermatology Department and/or failed to allow the Claimant to return to her role/work in the Dermatology Department and/or placed / redeployed her elsewhere;

d. on or around 26 and 29 December 2021, the Trust advertised the Claimant’s job locally on the Trust’s website and nationally on Trac.jobs.website.

[107]We have found that the Claimant was not subjected to the allegations at paragraph 2.1.1 of the List of Issues or, that the allegations were not detriments for having done a protected act.

[108]For these reasons, the Claimant’s victimisation complaint must fail. Unauthorised Deduction from Wages

[109]The Respondent did not make unauthorised deductions from the Claimant’s wages.

[110]The Claimant was erroneously offered a bank shift on 10th November 2021for which Ms. Dhanoia had already made staffing arrangements.

[111]When the Claimant’s booked shift was discovered, it was cancelled and the Claimant was paid for two-hours of work as a cancellation fee in-line with the Respondent’s procedure. The Claimant was not entitled to be paid for a shift she did not work and this claim fails.

[112]The Claimant’s claims have not been made out and are dismissed.

[113]By virtue of our substantive findings we need not consider the issue of time.