Miss M Mettle v HCRG Care Ltd: 2304964/2022 and 2300837/2023

EMPLOYMENT TRIBUNALS

Case No 2304964/2022, 2300837/2023

Between

Miss M MettleClaimant

HCRG Care LtdRespondent

Before

Employment Judge Wright

In person for claimant

Mr O Lawrence - counsel for respondent

Date 19 April 2024

JUDGMENT

It was the unanimous decision of the Tribunal that the claims of unlawful discrimination contrary to the Equality Act 2010 and breach of contract were not well-founded, failed and were dismissed. 19 April 2024

REASONS

[1]A final hearing took place between 15/4/2024 and 19/4/2024. Oral Judgment was delivered on the morning of the 19/4/2024. The claimant’s claims failed in their entirety, were not well-founded and were dismissed.

[2]The respondent made an application that the claimant pay its costs.

[3]The main basis of the respondent’s application was that various elements of the claimant’s claim had no reasonable prospects of success. Such that the rejection of the settlement offer(s) was unreasonable. In relation to the Tribunal’s discretion, the respondent relied upon the findings of the Tribunal in the Judgment given. The respondent conceded that some parts of the claimant’s claim may have been thought to have reasonable prospects of success; which may require evidence being heard and considered. The Tribunal’s Judgment however indicated that many of the other claims the claimant brought never had any prospect of success. Based upon the claim as presented, the claimant had not made out any case in respect of her victimisation, breach of contract and the direct discrimination claim. Elements of the Judgment are apposite to this application.

[4]In respect of the victimisation claim, what is fatal to it and which feeds into it being unreasonably advanced, is causation. The claimant did not advance any link between the email and any detriment. There was nothing to link Ms Budgen (or Mr Tizora) to the email sent to Ms Godden. Such that the victimisation claim had no reasonable prospect of success.

[5]In respect of the rota change; this allegation had no reasonable prospect of success. It was an innocuous act which the respondent explained. It was not reasonable to advance this argument as harassment, victimisation or breach of contract; especially when the claimant did not attend the shift.

[6]The same point is made in respect of the allegation regarding the CQC. There was no breach of contract and no suggestion as to how it was related to race or related to the protected act. The Tribunal also found the burden of proof did not transfer.

[7]The claim in respect of the reduced hours had no reasonable prospect of success. It was impossible to see what was detrimental about agreeing to the claimant’s proposal. The same can be said for the follow up paperwork Ms Godden sent to the claimant. The disadvantage to the claimant was that she was paid less whilst she was suspended. That however, was as a result of an agreement she had initiated. There was no prospect of success in claiming, that was a breach of contract.

[8]In respect of the victimisation claim, the Tribunal found the claimant did not address the burden of proof to show the email sent on 22/1/2021 created the proscribed environment.

[9]Furthermore, in respect of direct discrimination, no comparator was identified and the respondent submitted this meant the entire claim under this prohibited conduct was misconceived from the outset. The claimant did not have any grounds nor did she advance any grounds as to why she thought these allegations were less favourable treatment because of her race.

[10]Mr Lawrence submitted those are the main elements of the Tribunal’s findings which showed that the various claims had no reasonable prospect of success. This was a bloated claim, which should not have been so bloated; and the result is that the respondent was put to extra costs in defending it.

[11]In respect of the Tribunal’s discretion, it was submitted that it should be exercised in making a costs award. The claimant declined a substantial offer of £15,000. In doing so, the respondent then incurred counsel’s fees and further costs. It is unclear why the claimant refused the offer, she was legally represented, had legal advice and her solicitor was conducting the correspondence. The conclusion the Tribunal is invited to come to is that the respondent should not have had to defend this claim or have been put in this position; as such, the claimant has acted unreasonably.

[12]The respondent seeks its costs in respect of counsel’s fees only, the sum of £8,450, that is comprised of a brief fee of £5,750 and three refreshers of £900. No vat is claimed.

The Law

[13]The respondent made an application for costs under Rule 76(1)(a) and (b) of the ET Rules1.

[14]The material provisions of the ET Rules 2013 governing costs applications are excerpted below: Rule 74. Definitions 1 The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 Schedule 1.(1) “Costs” means fees, charges, disbursements or expenses incurred by or on behalf of the receiving party (including expenses that witnesses incur for the purpose of, or in connection with, attendance at a Tribunal hearing). […] Rule 75. Costs orders and preparation time orders (1) A costs order is an order that a party (“the paying party”) make a payment to— (a) another party (“the receiving party”) in respect of the costs that the receiving party has incurred while legally represented or while represented by a lay representative. Rule 76. Where a costs order or preparation time order may or shall be made (1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that— (a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or (b) any claim or response had no reasonable prospect of success.

(2) A Tribunal may also make such an order where a party has been in breach of any order or practice direction or where a hearing has been postponed or adjourned on the application of a party. Rule 77. Procedure A party may apply for a costs order or a preparation time order at any stage up to 28 days after the date on which the judgment finally determining the proceedings in respect of that party was sent to the parties. No such order may be made unless the paying party has had a reasonable opportunity to make representations (in writing or at a hearing, as the Tribunal may order) in response to the application. Rule 78. The amount of a costs order (1) A costs order may— (a) order the paying party to pay the receiving party a specified amount, not exceeding £20,000, in respect of the costs of the receiving party; (b) order the paying party to pay the receiving party the whole or a specified part of the costs of the receiving party, with the amount to be paid being determined, in England and Wales, by way of detailed assessment carried out either by a county court in accordance with the Civil Procedure Rules 1998, or by an Employment Judge applying the same principles; […]

(3) For the avoidance of doubt, the amount of a costs order under subparagraphs (b) to (e) of paragraph (1) may exceed £20,000. Rule 84. Ability to pay In deciding whether to make a costs, preparation time, or wasted costs order, and if so in what amount, the Tribunal may have regard to the paying party’s (or, where a wasted costs order is made, the representative’s) ability to pay.

[15]When determining an application for costs, the ET should apply a three-stage approach:a. Is the relevant jurisdictional threshold in rule 76 met?

b. If so, should the ET exercise its discretion in favour of making a costs order?

c. If so, what sum of costs should the ET order?

[16]For the purposes of rule 76(1)(a) the word ‘unreasonable’ is to be given its ordinary English meaning and is not to be interpreted as meaning something similar to vexatious (Dyer v Secretary of State for Employment

UKEAT/0183/83

[17]The Tribunal should consider the nature, gravity and effect of the unreasonable etc conduct, but it is appropriate to avoid a formulaic approach and have regard to the totality of the relevant conduct. As Mummery LJ explained in Yerrakalva v Barnsley MBC

[2012] ICR 420

, CA at §41: The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had […]

[18]It should, however, be noted that the Tribunal is not confined to making an award limited to those costs caused by the unreasonable conduct. As Mummery LJ confirmed in McPherson v BNP Paribas (London Branch)

[2004] ICR 1398

, CA.

[19]Mummery LJ did emphasise in Yerrakalva that whilst the Tribunal is not limited to awarding those costs incurred by the receiving party as a result of the paying party’s unreasonable conduct, the ‘effect’ of the unreasonable conduct will often be a relevant factor in the Tribunal’s exercise of its discretion.

[20]In circumstances where the Tribunal finds that the jurisdictional threshold in rule 76 is met, the Tribunal retains a broad discretion as to whether to make a costs order and the amount of any costs awarded. Whilst there is no closed list of factors relevant to the exercise of the Tribunal’s discretion, the following factors are often relevant:a. Costs orders are intended to be compensatory, not punitive (Lodwick v Southwark LBC

[2004] ICR 884

, CA). Therefore, the extent of any causal link between the unreasonable etc conduct and the costs incurred will normally be a relevant discretionary factor (Yerrakalva), albeit there is no requirement to establish a causal link between the unreasonable conduct and the costs incurred before an order can be made (McPherson).

b. The paying party’s ability to pay is a factor which the Tribunal is entitled, but not obligated, to consider (see Rule 84). Where regard is had to the paying party’s ability to pay, that factor should be balanced against the need to compensate the receiving party who has unreasonably been put to expense (Howman v Queen Elizabeth Hospital Kings Lynn

UKEAT/0509/12

c. Any assessment or consideration of means need not be limited to the paying party’s means as at the date the order is made. It is sufficient that there is a ‘realistic prospect that [they] might at some point in the future be able to afford to pay’ (Vaughan v London Borough of Lewisham

[2013] IRLR 713

, EAT).

d. Where the Tribunal does decide to take the paying party’s means into account, it must do so on the basis of sufficient evidence (for example by the paying party completing a county court form EX140) (Oni v NHS Leicester City

UKEAT/0144/12

e. There is no requirement to limit costs to the amount the paying party can afford (Arrowsmith v Nottingham Trent University

[2012] ICR 159

, EAT).

f. The Tribunal may have regard to the means of a party’s spouse or other immediate family members (Abaya v Leeds Teaching Hospitals NHS Trust

UKEAT/0258/16

g. Whether a party is legally represented may be a relevant factor. An unrepresented litigant may be afforded more latitude than a party who has the benefit of professional legal advice and representation (AQ Ltd v Holden

[2012] IRLR 648

, EAT).

[21]In Radia v Jefferies International Ltd

UKEAT/0007/18/JOJ

the EAT said: ’61. It is well-established that the first question for a Tribunal considering a costs application is whether the costs threshold is crossed, in the sense that at least one of Rule 76(1)(a) or (b) is made out. If so, it does not automatically follow that a costs order will be made. Rather, this means that the Tribunal may make a costs order, and shall consider whether to do so. That is the second stage, and it involves the exercise by the Tribunal of a judicial discretion. If it decides in principle to make a costs order, the Tribunal must consider the amount in accordance with Rule 78. Rule 84 provides that, in deciding both whether to make a costs order, and if so, in what amount, the Tribunal may have regard to ability to pay.62. At the first stage, accordingly, it is sufficient if either Rule 76(1)(a) (through at least one sub-route) or Rule 76(1)(b) is found to be fulfilled. There is an element of potential overlap between (a) and (b). The Tribunal may consider, in a given case, under (a), that a complainant acted unreasonably, in bringing, or continuing the proceedings, because they had no reasonable prospect of success, and that was something which they knew; but it may also conclude that the case crosses the threshold under (b) simply because the claims, in fact, in the Tribunal’s view, had no reasonable prospect of success, even though the complainant did not realise it at the time. The test is an objective one, and therefore turns not on whether they thought they had a good case, but whether they actually did.

63. In this regard, the remarks in earlier authorities, about the meaning of “misconceived” in Rule 40(3) in the 2004 Rules of Procedure, are equally applicable to this replacement threshold test in the 2013 Rules. See in particular Vaughan v London Borough of Lewisham

[2013] IRLR 713

at paragraphs 8 and 14(6). However, in such a case, what the party actually thought or knew, or could reasonably be expected to have appreciated, about the prospects of success, may, and usually will, be highly relevant at the second stage, of exercise of the discretion.’

Conclusions

[22]The threshold in Rule 76 is met in this case. The claimant and/or her representative behaved unreasonably in pursuing many elements of her claim. The claimant was asked at the outset and she confirmed that she was pursuing all of the allegations in the list of issues.

[23]On any reading of the allegations, it is not only difficult but impossible to understand how a legally represented claimant could believe that some of her allegations had any reasonable prospect of success. The matters the respondent highlighted in its application are noted. As per the liability Judgment; there is nothing detrimental about agreeing to a proposal put by the claimant to reduce her hours (3.1.3)2. How can there possibly be anything wrong in acquiescing to something the claimant had requested? Not only that, the claimant said nothing in her evidence-in-chief to suggest how this was harassment related to race. Besides the fact the allegation is simply not a detriment, the legally represented claimant has not even attempted to link it to the prohibited conduct she relies upon.

[24]The Tribunal cannot say enough times that it is not sufficient to refer to something the claimant is unhappy or disgruntled about (something that is a detriment, whereas in this case, particularly in this example, the allegation is simply not detrimental) and to then rely upon a protected characteristic (in this case race). A claim framed as such is doomed to fail. That fails to address the burden of proof, which is upon the claimant. She has to establish some facts from which the Tribunal could decide, in the absence of any other explanation, that the respondent has contravened the EQA, in this case in respect of the prohibited conduct of harassment and victimisation.

[25]The other failings referred to in the liability Judgment as highlighted by the respondent are noted.

[26]The Tribunal sees too many of these claims brought by litigants in person who do not understand the complexities and technicalities of the EQA. For example, the need to identify a comparator for a direct discrimination claim and to provide evidence of that comparator. In this case however, the claimant was legally represented since 31/8/2023. Presumably her legal representative drafted her witness statement or at least reviewed it. The claimant’s representative made a detailed application to amend her claim on the 6/12/2023. The one substantive amendment was allowed ‘marginally’. This does demonstrate that her legal representative had a grasp of the claim which the claimant advanced; yet this did not find its way into her witness statement.

[27]Another example is the way the claimant framed this element of her case during the hearing. She sought to claim that the respondent should not have simply agreed to her request to reduce her hours. She said her request should have caused the respondent to make enquiries of her as to why she wanted to reduced her hours, presumably she was suggesting that there is some sort of duty of care upon the respondent in this regard. This was 2 The allegations are set out in the written reasons for the liability Judgment. notwithstanding the fact that she had set out in her email application the reason why she wanted to reduce her hours. Even if this were the basis of the claimant’s misconceived case; it was not set out in her evidence-in-chief.

[28]The same observations could be made of allegations:3.1.1 (adjustments to the rota, the claimant did not establish how this was related to her race or transfer the burden of proof, furthermore, it was not a breach of contract);

3.1.2 (speaking to the CQC, the claimant did not establish how this was related to her race or transfer the burden of proof, furthermore, it was not a breach of contract); 3.1.4 and 5.1.1 (suspending her for things which had appeared online much earlier, the claimant did not establish how this was related to her race or religion, she did not transfer the burden of proof and there was no breach of contract); 3.1.5 (trying to get the claimant to sign a new contract – this allegation simply was not made out); 3.1.6 and 5.1.4 (the reason for the suspension – this allegation was not made out); 3.1.7 (the allegation that there was a delay in the suspension, the Tribunal found there was no delay and that furthermore, once the claimant had seen the respondent’s disclosure and witness evidence, she should have realised this was so); 3.1.8 and 5.1.5 (being informed the suspension was lifted and to return to work – this was not a detriment, particularly as the claimant had complained about the length of the suspension).

[29]The allegation of religious harassment (5.1.2) in respect of comment by the Safeguarding Lead was (as previously stated) allowed ‘marginally’ by means of amendment. This should have put the claimant on notice that this was not a particularly strong claim; or to put it another way, it was considered to be a weak claim. This should have caused reflection. Notwithstanding the fact the amendment application was successful, it does not automatically follow that the claim should be pursued. Allegation 5.1.3 was not made out.

[30]In respect of the allegations of direct discrimination, the fatal flaw was not to identify a comparator. There was a legitimate explanation for the respondent’s decision to suspend and it was not because of the claimant’s race (6.1.2). The claimant did not transfer the burden of proof. There was no dismissal by the respondent (6.1.1). Even if the claimant intended this to refer to direct race discrimination forcing her to resign, again, she did not set this out in her evidence-in-chief.

[31]There was no breach of contract and therefore there was no shortfall in wages.

[32]The respondent had sent three ‘without prejudice save as to costs’ letters to the claimant, during the time she was legally represented. Those letters were sent on 2/1/2024, 10/1/2024 and 26/3/2024. The content and tone of the letters was reasonable. The respondent made two substantive offers once the first offer was rejected. The claimant’s counter-offers were unreasonable and unrealistic. The respondent pointed out the failings in the claimant’s case, which were mirrored by the Tribunal’s findings; the respondent correctly identified the difficulties the claimant was facing.

[33]This all amounts to unreasonable conduct. In addition, the allegations had no reasonable prospects of success and this should have become apparent once witness statements were exchanged.

[34]The nature, gravity and effect of the unreasonable conduct is the time, effort and cost the respondent was put to in defending the claims. The respondent’s witnesses were put to the trouble of drafting their witness statements, attending the hearing and being questioned by the claimant. That not only distracted them from their everyday duties; it is also an unpleasant experience. That is compounded by serious allegations of unlawful discrimination contrary to the EQA which had been hanging over them since 25/12/2022; which were without foundation.

[35]Stepping back and looking at the whole picture of what has happened, claims which legally had no merit were unreasonably pursued. In reasoned correspondence the respondent pointed this out to the claimant’s legal representative. The claimant’s witness statement did not address how the burden of proof was transferred to the respondent and some allegations were either not made out, or, there was no detriment identified.

[36]The threshold having been met, the Tribunal is prepared to exercise its discretion in making a costs award. Pursuing egregious and misleading allegations is unreasonable conduct.

[37]The respondent only seeks its costs in respect of Mr Lawrence’s brief fee and refreshers. The respondent does not claim its costs in preparing for the final hearing and as per its application, tacitly accepted there was at least one element of the claimant’s claim which required the evidence to be heard and determined; notwithstanding the claimant was unsuccessful.

[38]In light of that application/concession the Tribunal has taken the view that of the (eventual) four day final hearing, that only one hearing day (and so one day’s refresher) would have been saved, had the claimant withdrawn her unmeritorious claims.

[39]The Tribunal considered the claimant’s ability to pay any costs which were awarded. The claimant’s evidence was unsatisfactory. The claimant did not refer to her orphaned niece for who she said she paid school fees in her schedule of loss dated 3/8/2023 (page 77).

[40]It is not accepted that she receives £938 in benefits per month, that her rent is also £938 per month and that she then lives off hand-outs from her family. Furthermore, as a qualified nurse who resigned from her role in November 2022 (she was therefore not dismissed and had no conditions placed upon her registration); that she has not been able to source some income, including bank shifts. The claimant said she had been in touch with colleagues who had left the respondent and she had 30 years’ experience. She earned £40,500 pa. That is notwithstanding the claimant’s age (60 at the time of her resignation, with her state retirement age being 67). The Tribunal finds that there was nothing to prevent the claimant from working and earning a salary after her employment ended and certainly once time had moved on after her resignation.

[41]The Tribunal was however prepared to accept that the claimant does not have any savings.

[42]The Tribunal did not accept the claimant’s evidence regarding her income and outgoings. It also took into account the availability of work for a qualified nurse, which the claimant does not appear to have explored. The Tribunal is therefore prepared to order the claimant to pay one day’s refresher fee in respect of Mr Lawrence’s fee and Orders her to pay to the respondent the sum of £900. 19 April 2024

Findings of fact

[43]On the 22/9/2022 the claimant was suspended from work for comments she had made ‘via online platforms’ (page 144).

[44]The background to the suspension is that on 8/3/2022 the claimant had given an interview regarding a book she had written - Sex and Sexuality Strictly for African Parents.

[45]The interview was publicly broadcasted on a Christian YouTube channel. Around the time the claimant requested a reduction in her hours, a colleague who wished to remain anonymous, received a notification which caused them to view the video of the claimant promoting her book (the video may have been on Instagram rather than YouTube). The colleague reported the same to Ms Godden. The fact the YouTube channel was a Christian video channel was immaterial; it was the vehicle which the claimant chose to promote her book and upon which she made her comments which concerned the respondent.

[46]Ms Godden’s initial concern was that the claimant had been doing activities whilst she was absent from work due to sickness. That issue fell away, however it was then replaced by a concern at the content of the interview; namely the claimant’s comments.

[47]Ms Godden reported this to Mr Tizora and he decided to look into the matter.

[48]Mr Tizora viewed videos on Instagram and YouTube. He was concerned that the claimant introduced herself as a rapid response nurse and by comments she made regarding physical chastisement of children, including her own daughter. Mr Tizora was concerned that the claimant may have breached the NMC Professional Code of Conduct and had brought the respondent into disrepute. In short, there were safeguarding concerns in respect of the claimant’s comments on the videos.

[49]Mr Tizora spoke to the respondent’s Safeguarding Lead for North Kent (NO). NO said that she would make an external safeguarding referral. Mr Tizora also consulted with the Designated Safeguarding Officer/Head of Safeguarding and a HR Advisor.

[50]Mr Tizora took the decision to suspend the claimant; his justification was that he needed to be confident that there was no risk to the respondent’s service users.

[51]On the 22/9/2022 Mr Tizora informed the claimant during a telephone conversation that she was suspended and confirmed the same in writing the same day (page 144).

[52]Insofar as the claimant takes issue with the time lapse between the YouTube interview she gave on 8/3/2022 and the respondent’s decision to suspend her on the 22/9/2022; there is a simple explanation. The video did not come to the respondent’s attention until September 2022. As soon as it did come to the respondent’s attention, it took action promptly.

[53]The claimant accuses the respondent of anonymously following her social media activity which was all to do with her personal life; notwithstanding that, the posts were public not private (witness statement paragraph 29). Clearly if the respondent had been monitoring the claimant, assuming the YouTube video was posted shortly after it was recorded on the 8/3/2022, then the video would have come to its attention much earlier. The fact that it did not come to the respondent’s attention until September 2022 indicates that the situation unfolded as per the respondent’s account.

[54]As a result of the contractual change in hours on the 16/9/2022 to take effect from the 1/11/2022, Ms Godden caused electronic paperwork to be sent to the claimant on the 27/10/2022 (page 178).

[55]Ms Godden said once she became aware the claimant had been suspended, that she spoke to HR to confirm whether she would be suspended on the new or previous hours. HR advised that the reduction in hours should take effect from 1/11/2022 as per the contractual variation. That generated the paperwork to send to the claimant (page 182).

[56]The claimant responded on the 2/11/2022 to say that she did not get the ‘employment change’ before her suspension, instead she received the email of ‘what I already know about’ (page 183). The claimant purported to decline the contractual change as she was on suspension.

[57]Clearly, the contractual change was now disadvantageous to the claimant as from 1/11/2022, whilst suspended from work, she would only be paid for 22 hours, not 37.5.

[58]The contract had already been formally amended on the 16/9/2022. This was not a proposal put to the claimant for her to accept or reject. It was a further paper trail confirming the agreement reached on the 16/9/2022. 3.1.6 and 5.1.4

[59]The claimant was given an explanation for the suspension. She was told in writing on the 22/9/2022 that the reason for the suspension was that ‘concerns have been raised regarding comments that you have made via online platforms’ (page 144).

[60]The claimant was not provided with further details of this allegation until she was contacted by the Head of the Business Unit, Mr Tizora’s line manager on 26/10/2022.

[61]There was a good reason not to provide the claimant with more detailed information; which was that the evidence could be tampered with. There is an example of this. On the 15/11/2022 the respondent’s Head of Safeguarding said that the relationship manager at the NMC had tried to watch the video a second time and it had been taken down. This post-dated the detail being provided to the claimant.

[62]The penultimate allegation in this section related to the delay in the investigation generally. The allegation is no more specific than that.

[63]Factually, the chronology is the video was drawn to the respondent’s attention in September 2022. Mr Tizora suspended the claimant on the 22/9/2022 after taking some initial advice. On 29/9/2022 the Safeguarding Lead for North Kent (NO) contacted Mr Tizora and informed him Kent children’s LADO (Local Area Designation Officer) said the referral did not meet their criteria as the claimant did not work with children.

[64]There was then some confusion over this advice and it was queried by NO and the Designated Safeguarding Officer/Head of Safeguarding (as the experts in safeguarding). The referral was then made on the 30/9/2022. Mr Tizora had a period of annual leave between 13/10/2022 and 30/10/2022. Terms of reference for the investigation were finalised on the 20/10/2022 and passed to the investigator (Manager for Administrative Services and Transformation Lead), who had been appointed on the 17/10/2022 (page 164). In the interim, the LADO referral and a referral to the equivalent for adults had both advised the concerns should be dealt with internally. The investigation meeting with the claimant took place on the 3/11/2022 (page 214).

[65]Mr Tizora returned from leave on the 31/10/2022 and saw that the respondent had had confirmation from the local authority that the matter could be dealt with internally. Mr Tizora realised that as the claimant had been suspended because of safeguarding issues and taking into account the view of the local authority that there were no such concerns; he began to review the suspension. It was only at 13.19 on the 15/11/2022 that the Head of Safeguarding confirmed that the NMC relationship manager felt that the matter could be dealt with locally (internally) (page 184). The email was not copied to Mr Tizora; it therefore must have been forwarded to him.

[66]Mr Tizora correctly decided that the claimant could return to work, notwithstanding that the investigation was not complete. It was not however the case that the claimant could simply return to her substantive role. Mr Tizora had to identify an alternative non-patient facing role.

[67]On the 15/11/2022 Mr Tizora called the claimant to discuss her return to work and he followed this up with an email at 18.09 (page 206). This does not demonstrate unreasonable delay by the respondent. Mr Tizora acted promptly once he received confirmation from the NMC.

[68]The Tribunal is satisfied that there was no general delay in the investigation. The Tribunal has seen many investigations which have been unnecessarily protracted and this was not one of them. The claimant may not have been aware of what was going on behind the scenes. Once however, she received an explanation via the disclosure of documents and following the exchange of witness statements, she would have been able to see what actions the respondent was taking and should have appreciated that there was no general delay.

[69]The claimant criticised the respondent for acting too quickly (when she asked for her hours to be reduced) and yet she seeks to criticise it for a delay in respect of the suspension, when there was no such delay. 3.1.8 and 5.1.5

[70]The final allegation and the ‘last straw’ is Mr Tizora’s email of 15/11/2022 regarding the claimant’s return to work on 21/11/2022. This followed on chronologically from the previous issue when Mr Tizora decided he could lift the suspension as it had been deemed there was no safeguarding issue (although other concerns remained). Mr Tizora took the view that the claimant could not return to her substantive role for two reasons. Firstly, that in view of the outstanding investigation, that she could not return to a patientfacing role and secondly, that there were unresolved issues with the claimant’s team, (Mr Tizora said that prior to the claimant’s suspension, there were issues which HR was looking into).

[71]Mr Tizora called the claimant on the 15/11/2022 to explain this to her. There was a brief discussion and the claimant said that she did not want to talk to Mr Tizora and asked him to email her. He did so (page 206). Mr Tizora explained that the return to work was to a non-patient facing role from 21/11/2022 and that she would not return to her existing team, but to a rapid response role in Gravesend ‘until such a time when a final decision has been made following the outcome of the investigation’. He also confirmed that travel expenses would be paid.

[72]For some reason, the claimant misunderstood that this was a temporary placement and in her evidence insisted that it was a permanent change.

[73]The claimant objected to this and after an exchange of emails between her and Mr Tizora, she resigned on the 19/11/2022. She did not give Mr Tizora the opportunity to address her concerns, when he indirectly asked for more time on the 18/11/2022 (‘I will provide a more detailed response in writing next week on issues you have raised…’) (page 204).

[74]There was nothing wrong with Mr Tizora lifting the suspension. Indeed, the claimant said that she was prevented from working overtime during her suspension and if she returned to work, potentially she could then work overtime.

[75]The main issue seemed to be the location she would return to. The claimant stated that her usual commute to work was a 12 minute drive; whereas the commute to Gravesend, via a motorway would take her more like 50-60 minutes. The claimant’s substantive post involved driving to visit patients in their homes. In 2022 the claimant had exceeded the mileage limit at which HMRC would allow her to be reimbursed at 45p per mile. That limit is 10,000 miles. The claimant’s temporary role did not involve driving during the shift, but rather a commute at the start and end of the shift. The claimant did not appear to have an issue with driving in her substantive role.

[76]The claimant did not give Mr Tizora the opportunity to discuss the role with her. In evidence, Mr Tizora said that the role would not involve attendance at the site every day, that it could be done remotely and that the respondent would provide equipment. As a non-patient facing role, the triaging aspect of the role would be done remotely, via telephone. Harassment related to religion 5.1.2 and 5.1.3 77. 5.1.2 The allegations of harassment related to religion were allowed by amendment on the 19/2/2024. The first was in relation to a comment made by the safeguarding lead NO on the 29/9/2022 (page 176). NO said in a referral to the safeguarding team at North Kent that: ‘The reason for this referral is because of [the claimant’s] status as a registered nurse, it is believed that she is indirectly promoting violence against children whilst using Christian ways as a cover up’.

[78]The referral went onto state that if the parents of African children followed the advice in the interview, it will adversely affect those children (the advice being physical chastisement). The claimant has not taken issue with the reference to ‘African parents’, however, she cannot as her book (which was the subject of the video interview) was titled – ‘Sex and Sexuality Strictly for African Parents’. All that NO was doing in the referral was referencing the concerns the respondent had, about the advice the claimant was giving to parents of African children.

[79]NO never intended that the claimant would see this comment. This was a disclosure by her to the safeguarding team. It is not a comment which is related to the claimant. The comment was made in the context of the perception that the claimant was using her belief (Christianity) to justify her views (promoting violence against children). This was not a finding against the claimant; it was subject to an investigation and once the agencies (the local authority and the NMC) took a view that (in the words of the NMC relationship manager) the claimant’s ‘intent was good but execution was poor’, the matter was dropped and later the same day the suspension was lifted (page 184). 80. 5.1.3 The allegation is that on the 27/10/2022 the respondent invited the claimant to an investigation meeting on the basis of the claimant’s comments to the religious online programme (page 212).

[81]The claim is not made out. The suspension letter does not mention the ‘religious online programme’. The letter states the reason for the investigation is: ‘On 16th September 2022, concerns were identified regarding an interview that was posted on YouTube on 8th March 2022 whereby you appear to provide unsafe, incorrect advice in the capacity of a registered Nurse and the comments made also raise concerns of a safeguarding nature.’ Direct discrimination6.1.1 and

6.1.2

[82]The allegation of direct discrimination is the suspension (6.1.2) and the dismissal (6.1.1); notwithstanding that no comparator is identified.

[83]The suspension was due to safeguarding concerns. As soon as the local authority and the NMC decided that the concerns were not within their remit Mr Tizora took immediate steps to lift the suspension. The immediate lifting of the suspension demonstrates that the reason was the safeguarding concerns. It was not because of the claimant’s race.

[84]The claimant was not dismissed by the respondent. She resigned. If it can be inferred that the reason the claimant resigned was due to direct race discrimination, then this has not been identified. If it could further be inferred that the matters set out at 3.1.1 to 3.1.8 are allegations of direct discrimination being less favourable treatment because of the claimant’s race, she has not identified a comparator. Breach of contract/wages

[85]The claimant’s contract was varied as per her request on the 16/9/2022 and the variation took effect on that date.

The Law

[86]Mr Lawrence set out the legal principles as follows: Constructive Unfair Dismissal 1. An employer breaches the implied term of mutual trust and confidence (‘the Malik term’) if it, without reasonable and proper cause, conducts itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee (see Malik v BCCI

[1997] ICR 606

, HL). A breach of the Malik term by the employer entitles the employee to terminate the employment contract for the purposes of section 95 ERA 1996 unless the employee affirms the contract after the breach. If the employee waits too long after the employer’s breach of contract before resigning, he or she may be taken to have affirmed the contract. 2. The first requirement for establishing a breach of the implied term is that there was no ‘reasonable and proper cause’ for the conduct in question. The second requirement is that the conduct must have been calculated or likely to seriously damage or destroy trust and confidence. A breach of the fundamental term will not occur simply because the employee subjectively feels that such a breach has occurred, no matter how genuinely that view is held. The legal test entails looking at the circumstances objectively i.e., from the perspective of a reasonable person in the claimant’s position (see Tullett Prebon v BGC Brokers LP and ors

[2011] IRLR 420

, CA). 3. An employee will be regarded as having accepted the employer’s repudiation only if his or her resignation has been caused by the breach of contract in issue. Where there are mixed motives, a tribunal must determine whether the employer’s repudiatory breach was an effective cause of the resignation. However, the breach need not be ‘the’ effective cause (see Wright v North Ayrshire Council

[2014] ICR 77

, EAT). 4. A claimant can be constructively dismissed on the basis of the ‘last straw’ principle if the whole of the respondent's approach caused him or her to resign, consisting in a series of acts which, taken together, amount to a breach of the implied term. The last action of the employer which leads to the employee leaving need not itself amount to a breach of the implied term but must be capable of contributing to the breach. 5. In Kaur v Leeds Teaching Hospital NHS Trust

[2018] EWCA Civ 978

, the Court of Appeal provided guidance on cases of constructive dismissal which was described by the EAT in Williams v Alderman Davies Church in Wales Primary School

UKEAT/0108/19/LA

as a ‘helpful decision tree’ for Tribunals:(1) What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, his or her resignation?

(2) Has he or she affirmed the contract since that act? (If so, the claim fails)

(3) If not, was that act (or omission) by itself a repudiatory breach of contract? (If so, go to (5))

(4) If not, was it nevertheless a part of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a repudiatory breach of the implied term? (If it was go to (5), there being no need for any separate consideration of a possible previous affirmation)

(5) Did the employee resign in response (or partly in response) to that breach? 6. Williams establishes that the claim for constructive dismissal fails if the employee is found to have affirmed the contract after the last straw. If the employee is found to have affirmed the contract before the last straw, then the claim for constructive dismissal can still succeed if the following two conditions are met: 1) The last straw is capable of contributing to the breach/is not entirely innocuous; and 2) The conduct of the employer which took place before the affirmation amounted to a breach of the implied term, cumulatively or individually. Victimisation 7. Victimisation claims are subject to the shifting burden of proof set out in s.136 EqA. That provides that the initial burden is on the Claimant to prove the facts from which the Tribunal could decide in the absence of any explanation, that the Respondent has contravened a provision of the Act. The burden would then pass to the Respondent to prove that discrimination did not occur. The facts which the Claimant has to prove as part of his or her prima facie case include that the alleged victimiser had knowledge of any protected act. That means that the detriment cannot be because of a protected act in circumstances where there is no evidence that the person who allegedly inflicted the detriment knew about the protected act. In the absence of clear circumstances from which such knowledge can be inferred, a claim for victimisation will inevitably fail (see Scott v London Borough of Hillingdon

[2001] EWCA 2005

CA). 8. It is not enough for the claimant to show that the alleged victimiser knew that the claimant had made a complaint of some nature. The claimant must show that the alleged victimiser knew that the complaint was an allegation of discrimination or otherwise a contravention of the legislation (see South London Healthcare NHS Trust v Dr Al-Rubeyi

UKEAT/0269/09

/ at [26]-[28]). 9. Something will amount to a detriment where a reasonable person would or might take the view that the act or omission in question gives rise to some disadvantage which need not necessarily involve some physical or economic consequence (Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] UKHL 11

). Direct Race Discrimination 10. In determining every claim of direct discrimination, the Tribunal has to determine the reason why the claimant was treated as he was. In most cases this will call for some consideration of the mental processes (conscious or subconscious) of the alleged discriminator. Section 13(1) EqA provides as follows: 13 Direct discrimination (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. Harassment 11. Section 26 EqA provides as follows: 26 Harassment (1) A person (A) harasses another (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. … (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; (c) whether it is reasonable for the conduct to have that effect. ‘Related to’ 12. Section 26(1)(a) EqA requires that the conduct in question be related to a relevant protected characteristic. In Tees Esk v Islam

UKEAT/0039/19/JOJ

at [21], HHJ Auerbach held that whether or not the conduct is related to the characteristic in question, is a matter for the appreciation of the Tribunal, making a finding of fact drawing on all the evidence before it and its other findings of fact. The fact, if fact it be, in the given case that the complainant considers that the conduct related to that characteristic is not determinative. The judgment continues with the following caveat: “Nevertheless, there must be still, in any given case, be some feature or features of the factual matrix identified by the Tribunal, which properly leads it to the conclusion that the conduct in question is related to the particular characteristic in question, and in the manner alleged by the claim. In every case where it finds that this component of the definition is satisfied, the Tribunal therefore needs to articulate, distinctly and with sufficient clarity, what feature or features of the evidence or facts found, have led it to the conclusion that the conduct is related to the characteristic, as alleged. Section 26 does not bite on conduct which, though it may be unwanted and have the proscribed purpose or effect, is not properly found for some identifiable reason also to have been related to the characteristic relied upon, as alleged, no matter how offensive or otherwise inappropriate the Tribunal may consider it to be.” [25] 13. The reason for the unwanted conduct is highly relevant to the question whether it is ‘related to’ the protected characteristic in question, though a finding about the motivation of the individual concerned is not the only possible route to an affirmative answer to that question. For example, in Kelly v Covance Laboratories Ltd

[2016] IRLR 338

, the EAT considered that an instruction to the claimant not to speak in her native tongue was not related to her race or national origins because the reason for the employer’s instruction was not race. ‘Effect’ 14. The EAT in Richmond Pharmacology v Dhaliwal

[2009] ICR 724

, EAT, gave some guidance as to how the ‘effect’ test of s.26(1)(b) EqA should be applied. It noted that the claimant must actually have felt, or perceived, his or her dignity to have been violated or an adverse environment to have been created (the ‘subjective’ test). If the claimant has experienced those feelings or perceptions, the tribunal should then consider whether it was reasonable for the claimant to feel that way (the ‘objective’ test). If the tribunal finds that there was no such effect, then that will be an end to the matter. 15. The objective aspect of the test is primarily intended to exclude liability where B is hypersensitive and unreasonably takes offence. As noted by the EAT in Dhaliwal: “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… legislation…) it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase…If, for example, the tribunal believes that the claimant was unreasonably prone to take offence, then, even if she did genuinely feel her dignity to have been violated, there will have been no harassment within the meaning of the section. Whether it was reasonable for a claimant to have felt her dignity to have been violated is quintessentially a matter for the factual assessment of the tribunal. It will be important for it to have regard to all the relevant circumstances, including the context of the conduct in question.” (emphasis added) 16. Where the effect complained of in relation to the conduct is the violating the complainant's person's dignity, there can be no harassment if the complainant is not aware of the conduct (see Greasley-Adams v Royal Mail Group Ltd

[2023] EAT 86

[87]S.136 EQA provides:(1) This section applies to any proceedings relating to a contravention of this Act.

(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that that the contravention occurred.

(3) But subsection (2) does not apply if A shows that A did not contravene the provision. … (6) A reference to the court includes a reference to- (a) an employment tribunal;… 88. Conclusions Victimisation – the protected act

Conclusions

[89]The claimant’s email of the 22/1/2021 was not a protected act. It did not come within s.27(2) EQA. It certainly is not: bringing proceedings under the EQA (s.27(2)(a)); giving evidence or information in connection with proceedings under the EQA (s.27(2)(b)); or doing any other thing for the purposes of or in connection with the EQA (s.27(2)(c))).

[90]It is also not making an allegation (whether or not express) that A (in this case Ms Budgen) or another person has contravened the EQA (s.27(2)(d)). There is no allegation. There is a reference to ‘inequalities in the workplace’ and there then follows a complaint about a medication error. The last sentence in the penultimate paragraph; the claimant says that she does not wish to be labelled as the ‘angry black women in the work place’. It is reasonable to infer that the claimant’s reference to herself relates to the complaint which she is raising (that she does not wish to be perceived as a trouble-maker in respect of the complaint she has raised) and nothing else.

[91]If the Tribunal is wrong in respect of the protected act, it does not accept that the matters set out in 3.1 were detriments. Furthermore, it does not accept that the claimant was subjected to the matters raised in 3.1 by Ms Budgen (person A). Even if the claim could be stretched to be interpreted as person A being Ms Godden and in the alternative Mr Tizora, there is no link between the email sent on 22/1/2021 and the detriments relied upon by the claimant, between 19/7/2022 and 15/11/2022. Furthermore, the claimant has not transferred the burden of proof.

[92]The changes to the rota did not only impact upon the claimant, at least one other member of staff was affected by the change. Not only is it difficult to see in those circumstances how the change to the rota can be related to the claimant’s race, or be a detriment as a result of her having done a protected act; the claimant has not provided any evidence-in-chief as to how this was related to her race or linked to any protected act. The claimant has not transferred the burden of proof.

[93]Furthermore, there is no breach of contract. The claimant was not contractually entitled to work alternative weekends. The respondent’s action was designed to ensure it was delivering the service it was contractually to provide to its service users. The claimant was asked to cover a shift and she objected. She was then given options which she did not take up. Even when the claimant did not attend work; the respondent did not take any action, disciplinary or otherwise against her.

[94]Mr Tizora did speak to the claimant regarding the remit of the CQC inspection and said that the CQC would not be interested in the claimant’s issue with the rota. If the claimant misunderstood that, it is not the fault of Mr Tizora.

[95]There was no breach of contract in informing the claimant that the CQC would not be interested in her issue with the rota. The claimant has not suggested how it was related to her race, or was a detriment as a result of her having done a protected act. She has not transferred the burden of proof under the EQA.

[96]The claimant proposed a variation to her contract, which the respondent accepted. There was nothing more to this allegation. There was no breach of contract; there was an agreed variation to the claimant’s contract. It is impossible to see what was detrimental about agreeing to the claimant’s proposal. It can only have been to her advantage that something she asked for (to enable her to take care of personal issues) was agreed to by Ms Godden. This allegation was fundamentally flawed. 3.1.4 and 5.1.1.

[97]The claimant was justifiably suspended due to safeguarding concerns shortly after the video came to the respondent’s attention. The claimant was not instantly suspended and Mr Tizora quite rightly took a short period of time to initially review the evidence and to seek advice. As a result of that he took the decision to suspend the claimant. The fact the video did not come to the respondent’s immediate attention after it had been posted, indicates that the respondent was not monitoring the claimant.

[98]The claimant did not advance in her evidence-in-chief how the decision to suspend her was related to her race or religion or that it was a detriment as a result of her having done a protected act. The claimant did not transfer the burden of proof. The respondent’s non-discriminatory explanation (the reason why it did what it did) was that it had safeguarding concerns and that it would have suspended any employee, whatever their race or religion, in the circumstances. That explanation is accepted.

[99]It was not a breach of contract to suspend the claimant. The decision to suspend was reasonable and justified in the circumstances.

[100]The allegation is simply not made out. The respondent did not ‘try’ to get the claimant to ‘sign a new contract reducing her hours while she was suspended’. The contract had been varied on the 16/9/2022 and this was simply further paperwork confirming the variation. 3.1.6 and 5.1.4

[101]The claimant was given an explanation for her suspension. It is correct to say that she was not given further details until 26/10/2022; however, she was informed in the suspension letter of the 22/9/2022 the reason for the suspension (page 144). The claimant did not transfer the burden of proof and there was no breach of contract.

[102]There was no general delay in the investigation. The respondent acted reasonably and promptly during the process. Additionally, as soon as Mr Tizora realised the safeguarding concerns had fallen away, he took steps to lift the suspension and to return the claimant to work. The claimant did not transfer the burden of proof and there was no breach of contract. 3.1.8 and 5.1.5

[103]Being informed that the suspension was lifted and the claimant could return to work, was not a detriment. The claimant has complained that various aspects of the suspension were detrimental and so lifting the suspension removed those detriments. Harassment on the grounds of religion 5.1.2 and 5.1.3 104. 5.1.2 The comment by the Safeguarding Lead may well have been unwanted by the claimant once she became aware of it. By this time however, she was aware that the respondent had dropped the safeguarding issue and had lifted the suspension.

[105]The claimant’s written submissions made the point that the comment was intrinsically linked to her religion. The claimant’s video interview was posted on a Christan YouTube channel and therefore that was the context of the video containing her comments.

[106]Providing the comment in context, certainly did not have the purpose or effect of violating the claimant’s dignity. The Tribunal took into account the authorities and in particular that ‘violating’ is a strong word and the other components of s.26 EQA look for effects which are serious and marked, and not those which are, though real, truly of lesser consequence (Betsi Cadwaladr University Health Board v Hughes). This comment does not cross the threshold of contravening the proscribed elements of s.26.

[107]Furthermore, the claimant, other than making the assertion that this was harassment related to her religion, has not addressed the burden of proof to show how this comment in the factual context in which it was made, had the purpose or effect of: creating an intimidating, hostile, degrading, humiliating or offensive environment for her.

[108]Certainly, the claimant was not aware of the ‘environment’ whilst she was in the respondent’s employ and it is therefore difficult to understand how she could retrospectively find this offensive. There was no ‘environment’ by the time the claimant became aware of the comment. It is perfectly understandable that the claimant was disgruntled by the statement; however that is far removed from it being unlawful harassment contrary to the EQA.109. 5.1.3 The allegation is not made out. The respondent did not refer to the ‘religious online programme’ in the invitation of the 27/10/2022. Direct discrimination on the grounds of race

110. 6.1.2 The suspension was demonstrably due to other reasons and was not because of the claimant’s race. The respondent had legitimate safeguarding concerns, which it needed to investigate. The claimant did not transfer the burden of proof.

111. 6.1.1 In respect of the dismissal, even if it is assumed the comparator is a hypothetical comparator, either the allegation is simply not made out (3.1.3, 3.1.4, 3.1.5, 3.1.6 and 3.1.7) or there is a perfectly acceptable nondiscriminatory explanation. The reason why the respondent changed the rota in July 2022 was due to staffing requirements in respect of service delivery. The amended rota did not only affect the claimant. Mr Tizora spoke to the claimant about the CQC inspection in August 2022 to remind her that the CQC would not be interested in an internal matter and that she should raise it internally in accordance with the respondent’s policies. Finally, Mr Tizora was entitled to lift the claimant’s suspension once the agencies had confirmed the concerns could be dealt with internally. The fact the return to work was conditional was not because of the claimant’s race. The claimant did not transfer the burden of proof. Breach of contract/wages

[112]There was no breach of contract. The claimant’s contract was varied at her request on the 16/9/2022. There was no shortfall of wages in November 2022.

[113]For those reasons, the claimant’s claims fail, are not well-founded and are dismissed. 10 May 2024