The claim for unauthorised deductions from wages is out of time and is dismissed.
REASONS
[1]Upon considering the submissions of the parties, I find that Miss Ilunga's claim for unauthorised deductions from wages relating to her June 2023 pay, due on 30 June 2023, must be dismissed as it has been brought out of time.[2]Section 23(3) of the Employment Rights Act 1996 (ERA 1996) requires that deductions claims must be brought within three months of the date the deduction occurred or termination of employment.[3]Miss Ilunga's effective date of termination was 27 July 2023, after her resignation on 28 June 2023. The alleged unauthorised deductions relate to her June 2023 pay on 30 June 2023.[4]Her claim was presented to the tribunal on 26 October 2023, which was over three months after both the date of the disputed June 2023 pay deductions and her termination date.[5]While the tribunal does have discretion under s.111(2) ERA 1996 to consider a claim out of time if it was not "reasonably practicable" to present it within three months, I do not find the test has been met here.[6]Miss Ilunga explained the delay was due to her following Portico's internal processes to attempt resolving the deductions issue. However, in line with Palmer v Southend on Sea Borough Council [1984] ICR 372, pursuing an internal resolution does not stop the statutory time limit running. The time limit is generally an absolute constraint.[7]Significantly, the fact Miss Ilunga was able to follow and engage with Portico's internal processes demonstrates she was aware of her rights and able to take steps to address the deductions issue. In the circumstances, she ought reasonably to have been able to ascertain Reference number 2305959-2023 the strict time limits for bringing a tribunal claim.[8]Her failure to do so and comply with the three-month limitation period under s.23(3) should not be visited upon the respondent, who was entitled to rely on those statutory time limits being enforced.[9]In the absence of any other justification, I cannot find it was not "reasonably practicable" for this claim to have been brought in time. Miss Ilunga did not act reasonably in allowing the time limit to expire.[10]As such, I have no discretion to permit the unauthorised deductions claim to proceed, as it undisputedly falls outside the strict time limits. The claim is dismissed upon a preliminary basis.[11]This judgment does not impact the remaining claims, which proceed to the final hearing listed for 3-6 June 2025 for consideration of potential time extensions on "just and equitable" grounds. Separate case management orders will follow. Judge M Aspinall Thursday, 30th January 2025 Recording and transcription Where a Tribunal hearing has been recorded you may request a transcript of the recording, for which a charge may be payable. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved, or verified by a judge. More information is available online at: https://www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practice-directions in the joint Presidential Practice Direction on the Recording and Transcription of Hearings and accompanying guidance.[1]The claimant was employed by the respondent as an Event Planner from 21 March 2022 until 27 July 2023. She presented her ET1/Claim Form to the Tribunal on 28 October 2023, having notified ACAS of a potential dispute with the respondent on 14 September 2023 and an Early Conciliation Certificate having been issued on 18 September 2023. In her ET1/Claim Form, the claimant indicated claims for race, disability and sex discrimination, as well as unlawful deduction from wages in respect of two days’ leave which she asserted had not been properly paid to her.[2]The claimant had emailed written notice of her resignation to the respondent on 28 June 2023, in circumstances which she claims was a constructive dismissal amounting to discrimination and/or victimisation and/or harassment. She was placed on garden leave and her effective date of termination was, accordingly, 27 July 2023.
Issues
[3]The case was listed for a Preliminary Hearing for Case Management before EJ Evans on 6 September 2024, at which the issues were clarified and identified. The claimant withdrew her sex discrimination claim and the Tribunal duly issued a Judgment dismissing that claim. A List of Issues was appended to the Record of Preliminary Hearing, sent to the parties on 11 September 2024. The parties subsequently both agreed that this List of Issues accurately recorded the issues which fell to be determined at the Full Merits Hearing.[4]Save in one respect (as a result of rulings made by EJ Aspinall, at a later Preliminary Hearing on 29 January 2025), on the first day of this Full Merits Hearing, with the agreement of the parties, the List of Issues was adopted as the framework of the issues for me to decide. The only change relates to the date of the allegation of victimisation at paragraph 17(d) which, by virtue of EJ Aspinall’s rulings, requires amendment to read 30 June 2023, rather than 31 July 2023. That List of Issues is appended to these Written Reasons. Adjustments to Hearing[5]At the outset of this Hearing, I asked the parties if anyone (party, witness or representative) needed any adjustments to enable better participation in the Hearing. The claimant mentioned that she had emailed the Tribunal a week or two before this Hearing to request a French Interpreter to assist two of her witnesses with their evidence: Ms Fatuma Ngongo (her mother) and Mr Kabenji Mukendi (her partner). I explained that her request for an interpreter had not been addressed by the Tribunal but that I would ascertain whether and, if so, when a French Interpreter might be obtained.[6]As for other adjustments, the claimant explained that, due to her dyslexia, when she was asked questions and/or was taken to documents, she would need adequate time to process what was being asked. She also asked for questions to be kept short and simple. I asked Mr Green (the respondent’s counsel) to bear this in mind and he expressed his willingness and intention to do so. I record here that Mr Green adhered to this, framing questions in simple language and he was careful to give the claimant time to respond and to review any relevant documents. I am grateful to him for the assistance he provided.[7]The claimant also requested more frequent breaks and it was agreed that we would try to schedule in breaks every 45 minutes to one hour, but that the claimant would indicate if/when she needed to take any additional breaks. She also asked to record the proceedings with a recording device, to assist her with processing information, which she could find difficult, in view of her dyslexia. I explained that this would normally be a last resort because, if a participant is permitted to make their own recording of proceedings, the Tribunal then loses any control over that recording which is far from ideal. I indicated to the claimant that I was not definitively ruling out her recording the proceedings but would much prefer her to see if she could find a friend or someone to, for example, join the CVP link to take a note of the proceedings and/or rely on her partner (Mr Mukendi) to take a note of key points. I asked the claimant to let me know if and when she was struggling and, other than a couple of occasions when she asked for a break, no other adjustments were needed. I checked with the claimant about a note-taker (as no-one subsequently joined the CVP link to take a note for her) and she told me that she was managing; and I encouraged her to have pen and paper with her for note-taking during her own evidence. Preliminary Hearing on 29 January 2025[8]At the Preliminary Hearing on 6 September 2024, EJ Evans had directed that any amendment application and certain issues relating to whether the Claimant’s claims had been presented out of time should be determined at a one-day preliminary hearing. This took place on 29 January 2025, with EJ Aspinall making the following decisions:(1) As to amendment, EJ Aspinall allowed the claimant’s application to amend her disability claim to rely on dyslexia (as well as anxiety) as her disability but only to the extent that this fell within the existing agreed List of Issues. No other amendment was sought.(2) The alleged failure to pay the claimant for two days’ leave was found to have occurred on 30 June 2023 (and not, therefore, 31 July 2023, as had been recorded in the List of Issues).(3) That date was, accordingly, found by EJ Aspinall to be the last date of any act of discrimination, harassment or victimisation under the EA 2010; and was also the date of the alleged unlawful deduction from wages.(4) As regards the unlawful deduction from wages claim, that was presented outside of the prescribed time limit (under s.48 of the Employment Rights Act 1996) and the Judge was not persuaded that it had not been reasonably practicable to present it in time. He, therefore, concluded that the Tribunal had no jurisdiction to determine the wages claim and issued a Judgment dismissing it.(5) There was no evidence of any conduct extending over a period (under EA 2010, s.123(3)(a)).(6) The claimant’s ET1/Claim Form, having been presented on 28 October 2023 (with ACAS early conciliation taking place between 14 and 18 September 2023), was presented outside the time limit and, therefore, all of the claimant’s claims were out of time, such that the Tribunal had no jurisdiction to determine them unless it was considered “just and equitable” to extend time.(7) The issue of whether it was “just and equitable” to extend time would fall to be determined at the Full Merits Hearing. Time issues – whether just and equitable to extend time[9]There was discussion with the parties about the ambit of EJ Aspinall’s Decision at the Preliminary Hearing in January 2025 and the above points were agreed as having been decided. The claims remaining for determination all concern complaints under the EA 2010 and EJ Aspinall had already decided that they had all been presented outside the prescribed time limit and that there was no conduct extending over a period. As such, if I was not persuaded that it was just and equitable to extend time to permit some or all of the claimant’s complaints to be determined, those claims would fall to be dismissed and there would be no requirement for any hearing on their merits. The respondent requested me to determine that issue at the outset. The claimant did not object to this proposal and it struck me as sensible as it would save time and expense for the parties, if I decided the issue against the claimant.[10]I, therefore, heard evidence from the claimant, Mr Mukendi and Ms Ngongo on the question of whether it was just and equitable for me to extend time. Counsel for the respondent had indicated that he would have no cross-examination, other than for the claimant, on this issue. As such, whilst Mr Mukendi and Ms Ngongo would otherwise have needed the assistance of a French interpreter to give oral evidence, they spoke sufficient English to be able to confirm their names and addresses and to swear to the truth of their Witness Statements. The claimant was cross-examined by Mr Green and both parties provided written submissions and made oral submissions.[11]I retired to deliberate and delivered my Decision the following morning (Day 2 of the Hearing), giving full oral reasons at that time. I concluded that it was just and equitable to extend time for each complaint of discrimination, harassment and victimisation (the earliest being the complaint concerning the claimant’s proposed move to the Embankment Place site from her existing work location, at More London, which had been conveyed to her in an email dated 22 February 2023, such that her ET1/Claim was presented five months and one week out of time). Accordingly, I decided that the Tribunal had jurisdiction to determine all of the claimant’s complaints and the Full Merits Hearing, therefore, continued. The Evidence and Hearing[12]On behalf of the claimant, statements were provided for the following individuals: i) The claimant herself; ii) Mr Mukendi – the claimant’s partner; iii) Ms Ngongo – the claimant’s mother; iv) Ms Jodie McCalla – an Event Planner, and a colleague of the claimant’s; v) Mr Adam Burrows – an Event Planner, and a colleague of the claimant’s; vi) Mr Vava-Malakani Tampa – a community leader who provided guidance and support to the claimant[13]On behalf of the respondent, statements were provided for the following individuals: i) Ms Paola Roson – Head of Welcome Services UK and the manager to whom the claimant’s line manager (Ludovic Fiscal) reported; ii) Mr Mark van Schalkwijk – People Manager; iii) Ms Carla Hughes – Welcome Services Manager for the North, Scotland and Northern Ireland region; and the disciplinary hearing manager who issued a ‘Letter of Concern’ to the claimant in April 2023.[14]I explained to the parties that I would only read the pages in the bundle which I was referred to in the witness statements, written submissions and during the course of the hearing. I have, therefore, not read every single one of the 374 pages in the Hearing Bundle. I took time to read all the witness statements before starting to hear oral evidence on Day 2 of the Hearing.[15]The claimant had applied in advance of the Hearing, for it to be converted into a hybrid hearing to enable two of her intended witnesses to give their evidence remotely, rather than ‘in person’, via the CVP (video) link. This was not objected to by the respondent; and, in principle, I considered that it was in accordance with the overriding objective, including the interests of justice, to grant the application so long as the two witnesses were able to give their evidence from a quiet place, with access to adequate broadband and to clean copies of the Hearing Bundle and the Statements. To this end, I required them to log onto the CVP link (which was in use, in any event, for the purposes of recording the proceedings) so that Tribunal staff could check their connection and the suitability of the venue from which their evidence would be given.[16]Ms McCalla duly joined the link and demonstrated that her arrangements for giving evidence were suitable. She gave her evidence on Day 3 and was crossexamined by Mr Green, for the respondent. Mr Burrows did not make himself available to give evidence. I was told by the claimant that he was in Belfast and could not take the time off work for the purposes of giving evidence. Mr VavaMalakani Tampa also joined the link (on the morning of Day 3) and swore to the truth of his witness statement. Counsel for the respondent, however, had no questions in cross-examination for him so he was able to leave the CVP link shortly thereafter.[17]Overnight between Days 1 and 2, Tribunal staff had succeeded in finding a French interpreter to assist with the evidence of Mr Mukendi and Ms Ngongo. I record my gratitude to staff for this and to Mr Karim Chebouni, the French language interpreter, for his assistance. He arrived in time for Mr Mukendi and Ms Ngongo to start their evidence at 2pm on Day 2. Mr Green had no questions in cross-examination for Ms Ngongo but did cross-examine Mr Mukendi. Closing submissions[18]I received written submissions from the claimant and from Mr Green for the respondent, ahead of their oral closing submissions on Day 4 of the Hearing. It became apparent that the claimant had used a generative AI tool to assist her in producing her written submissions. These submissions included references to case law which, it transpired, were not always accurate. Indeed, some of the case law references were wholly inaccurate.[19]This matter was quite properly raised with me by Mr Green who objected to the claimant’s submissions, on behalf of the respondent. I canvassed various options with the parties about how best to deal with this issue. It would have taken the respondent’s legal representatives some considerable time to go through the claimant’s written submissions and check every case cited, and to ascertain whether it stood for the legal principle set out in the claimant’s submissions. This would entail delay with my deliberations and increased legal costs being incurred by the respondent. Mr Green indicated that, in those circumstances, he would likely be instructed to make a costs application for those costs on the basis that the claimant had conducted proceedings unreasonably by using an AI tool to generate incorrect references to the law.[20]The claimant decided that she would either prefer to withdraw her written closing submissions or not rely on any of the assertions as to the law in those submissions. I determined that the fairest course of action to both parties was for me to have regard to the claimant’s submissions, insofar as they advanced factual / evidential points, but that I would disregard any legal principles asserted. I also heard oral closing submissions from the claimant and Mr Green. I reserved my decision as we had reached the end of Day 4 by this time. Disclosure – issues raised by claimant[21]Prior the Hearing, the claimant had emailed the respondent making requests for specific disclosure, and applied to the Tribunal for order(s) for specific disclosure and or to require the respondent to confirm the disclosure search parameters and/or the timeline and authority behind the deletion or restriction of email accounts and digital records. The claimant’s application is contained in emails of 30 April, 1 and 13 May 2025, with a substantive response from the respondent’s solicitors dated 30 April 2025. The Tribunal responded to various outstanding issues by letter dated 23 May 2025, including – as regards disclosure – refusing the claimant’s requests regarding specific disclosure on the basis that the application was, at best, “vague”.[22]At the Hearing, the claimant provided a document, “Opening Submission on Disclosure Delays and Adverse Inference” with an associated document headed, “Case Management Orders Delay”. I read these documents by which the claimant presented a chronology of alleged disclosure delays and/or partial disclosure. I explained to the claimant that, if she wished me to consider drawing adverse inferences from any alleged failure to disclose documents (or any delay), she would need to give some thought to questioning one or more of the respondent’s witnesses on this issue. I reminded the claimant that she may need to ask questions on any alleged failure(s) to disclose key documents ahead of her cross-examination of the respondent’s witnesses (on Day 2 of the Hearing). She did not ask any such questions so, prior to closing submissions, I suggested that the claimant may wish to provide me with a list of the documents which were disclosed after the original deadline for disclosure directed by the Tribunal (of 18 March 2025). In the end, with the assistance of Mr Green – whose conduct throughout the Hearing exemplified the parties’ duty of cooperation under the overriding objective – I was provided with a list of 8 documents (totalling 19 pages) which I was told were disclosed on 8 April 2025, some 3 weeks after the original disclosure deadline.[23]As regards the issue of non-disclosure, the claimant explained to me that:(i) her line manager, Ludovic Fiscal, kept one-to-one meeting notes on a Google drive and that these had not been disclosed. On behalf of the respondent, it is accepted that such notes were not disclosed: in the email from its solicitors (of 30 April 2025), it is stated that the one-to-one notes were searched for but nothing was returned, emphasising that neither the claimant nor Mr Fiscal work for the respondent any longer; and their online accounts and laptops were wiped upon termination of their employment.(ii) the respondent had not disclosed CCTV footage of the events on 28 June 2023, leading up to Ms Roson instructing Security to escort the claimant off-site. That is also accepted on behalf of the respondent. In its solicitors’ email of 30 April 2025, the respondent explains that CCTV recordings are automatically deleted after 31 days. The claimant first requested the CCTV footage on 2 August 2023, by which time any footage from 28 June 2023 would already have been deleted.[24]I have no grounds for going behind these explanations from the respondent’s solicitors; and I accept them as the reason for the non-disclosure of the one-toone notes and the CCTV footage.[25]During my fact-finding and in the process of reaching my conclusions on the claimant’s claims, I have considered whether any late disclosure, or any deliberate failure to disclose relevant documents, provided any proper basis for me to draw adverse inferences against the respondent in respect of the claimant’s complaints under the EA 2010. I concluded that there was no sound basis to do so. The claimant did not explore any disclosure issues in her crossexamination of the respondent’s witnesses (despite my guidance that she should do so, if she wished me to reach conclusions adverse to the respondent in respect of alleged disclosure failings); and there were no specific, identified documents which the claimant could point to as being in existence but which had been withheld from disclosure, or disclosed late, and which were clearly adverse to the respondent’s case.
FINDINGS OF FACT
[26]I have considered all the oral evidence and documentary evidence in the hearing bundle, to which I was referred. I have also carefully reviewed the claimant’s submissions about disclosure failures and the parties’ closing submissions, oral and written (with the caveat, in respect of the claimant’s written submissions, as set out earlier in these Reasons). I have considered all the witness statements, including for Mr Burrows and Ms Hughes, neither of whom were called to give oral evidence and whose witness statement evidence was challenged by the respondent and the claimant, respectively. I set out below the facts which I have found to be material to my conclusions. If I do not mention a particular fact in these Reasons, it does not mean that I have not taken it into account. All my findings of fact are made on the balance of probabilities.
Background
[27]The respondent is a business within WSH Limited (“WSH”); a group of different hospitality businesses (which WSH refers to as its ‘brands’), which provide catering, events and reception management solutions to businesses and educational establishments. Some of WSH’s clients will contract with several of its ‘brands’ for the provision of in-house hospitality services.[28]The claimant was employed by the respondent from 22 March 2022 to 27 July 2023 as a Meeting & Event Planner, working full-time on the PricewaterhouseCoopers (“PwC”) client account. The respondent’s hospitality services were provided to PwC across two sites in London, PwC’s headquarters at Embankment Place and its other London site, at More London.[29]The evidence of Mr Mark van Schalkwijk (People Manager), which was not challenged, is that – with bigger client accounts – there is normally on-site client account management and some ‘shared service’ support, such as human resources. Whilst Mr van Schalkwijk was formally employed by Baxterstory Ltd (one of the businesses within the WSH group), he provided HR support in relation to the PwC account, on-site at Embankment Place and More London, supporting all the WSH brand employees on that account. He, therefore, provided HR support in respect of the claimant (and other Portico employees).[30]The claimant’s general duties were to coordinate all events and priority bookings at PwC’s London sites, taking ownership of all aspects of the events and meetings and being the central point of contact. This required the claimant to have a detailed knowledge of all services provided to PwC, including Welcome, Hospitality, Security, Housekeeping, technology (including audiovisual) and Room Services. Her actual role sat within the Welcome Services team. She had access to a desk and computer and much of her work was via email and telephone but there were also ‘in person’ interactions. She had oneto-one catch up meetings with her line manager at regular intervals and also attended regular team meetings.[31]The claimant initially reported to Steph New, the Events Manager. However, she left shortly after the claimant’s probation had been completed. She was only replaced in early October 2022, by Ludovic Fiscal who was then the claimant’s line manager until her employment terminated. The Events Manager role reported into the Head of Welcome Services UK. This role was initially occupied by Jo Newton, who was responsible for hiring the claimant. Ms Newton left shortly thereafter, and was replaced by Ms Paola Roson two or three months later, in the first week of June 2022. Ms Roson remains in her role of Head of Welcome Services UK.[32]Mr Fiscal resigned from his job with the respondent in April 2024, having been put on a performance improvement plan. Ms Roson told me that he left on good terms and that he had never raised any concerns that he had been subjected to race discrimination. He is of black Caribbean heritage. He did not give evidence in this Hearing, even though there are complaints made against him in these proceedings of direct race discrimination and harassment relating to race and disability. Ms Roson explained that she and Mr Fiscal remained on friendly terms and that he told her that he did not wish to be involved since he no longer worked for the respondent. In addition, he was on holiday in Lisbon during the Hearing, as it was his birthday. I accept that explanation at face value since there is nothing to contradict it and it appears to me to be plausible. Training and policies[33]Upon joining the respondent, the claimant completed some induction training. Ms Newton emailed her on 21 March 2022, the day before her first day of work, attaching various policies and training documents, as well as the Terms and Conditions of her Employment (“T&Cs”). The claimant was required to sign various of these attachments. Whilst the T&Cs refer to the disciplinary and grievance procedures (in clause 14), noting that further detail can be found in the Employee Handbook and state, in clause 14, that “You will receive a copy of the Company’s Employee Handbook”, this was not one of the attachments to Ms Newton’s email. The disciplinary and grievance procedures were also not attached. Clause 13 provides that: “If you wish to raise a grievance you must put your complaint in writing to your line manager in the first instance in accordance with our grievance procedure”.[34]The claimant’s evidence, which I accept as it is consistent with the documentary evidence, is that she was not provided with a copy of the Employee Handbook until it was emailed to the claimant by Carla Hughes on 5 April 2023, the day before her disciplinary hearing, which was chaired by Ms Hughes.[35]By Ms Newton’s email of 21 March 2022, the claimant was also sent something called “Diversity and Inclusion training document”. This was not provided to me. Ms Roson and Mr van Schalkwijk both told me – and I accept – that there was online diversity and inclusion training; the content of which has not been explained or otherwise provided to me. Mr van Schalkwijk explained in his evidence that the online training had been replaced more recently with classroom training and that the training offering had improved quite considerably. From this, I infer that the training which existed at the time of the claimant’s employment was a fairly generic online offering covering the basics only.[36]As regards mental ill-health, sickness absence and occupational health support, I heard from Mr Schalkwijk that there were mental health first aiders and private medical insurance for employees, including access to counselling and an Employee Assistance Programme. He explained that there was some online and classroom training for managers to help guide them on how to manage staff with mental ill-health but, again, I have not been provided with any information about its content, nor whether this training was undertaken by the claimant’s line manager, Mr Fiscal. There is nothing in the Employee Handbook about guidance or support in respect of mental ill-health nor about occupational health referrals. From this I infer that there was little, if any, guidance or training for line managers on how to manage employees suffering from mental ill-health. Event Planners & Work location[37]By way of clause 5 of her contract of employment, the claimant could be placed at any locations within the client contract. This meant that the respondent was entitled, as a matter of contract, to place her at either or both of PwC’s sites at Embankment Place and/or More London, subject – as a matter of wellestablished contractual principle – to the implied duty of trust and confidence and/or the duty to exercise any contractual discretion rationally and noncapriciously.[38]The claimant was initially placed at Embankment Place but, at the end of April 2022, she was moved to PwC’s More London site where she remained. This was as a result of an incident with a catering manager which I come back to later in my fact-finding.[39]When the claimant commenced employment, there was another female Event Planner (Ms “KK”) who was of Asian heritage. A black male Event Planner joined the team shortly after the claimant (Mr “E”), as did a white female Event Planner, Katrina Wray (who is one of the claimant’s comparators, in her direct race discrimination claim). Ms Wray was located at the More London site, alongside the claimant, whilst Mr “E” was placed at Embankment Place, along with Ms “KK”. He left during the first month of his employment. The claimant asserts that Mr “E” raised complaints about a toxic work environment at Embankment Place. I accept that this is likely to be accurate since the claimant (and, indeed, others) had also found the working environment there to be tricky.[40]In October 2022, Andrew Burrows transferred from his employment as an Event Planner with WSH in Belfast to London, on the PwC account. He is a white man (and is another of the claimant’s comparators in her direct race discrimination claim). At around this time, Ms “KK” handed in her notice. The claimant’s evidence is that Ms “KK” had submitted grievances but there was no evidence from the parties as to what this was about. It has not been suggested that Ms KK complained about discrimination or other treatment contrary to the Equality Act 2010. Another Event Planner joined the team at Embankment Place; a white woman, Olivia Strainer (also a comparator in relation to the claimant’s direct race discrimination claim).[41]In due course, Mr Burrows also described the working environment at Embankment Place as difficult and there is evidence that Ms Wray also shared this view. Ms Roson’s evidence is consistent with this picture – she describes Embankment Place as having an environment where there was some conflict between the different teams, giving the example of the catering team not always working collaboratively with the Event Planners. She agrees that Embankment Place was considered to be a more challenging working environment, although she herself believed it would have been an exciting and interesting place to work.[42]I find that the Event Planners generally preferred the working environment at More London and that Embankment Place was a more difficult environment in which to work.[43]In February 2023, I note that the respondent recruited a female Events Planner, Jodie McCalla, who is black. She worked at the More London site. In March 2023, another Events Planner joined the respondent, at Embankment Place (Ms “AC”). She is a white woman. It was intended that Ms “AC” would be a “floater” Event planner, moving from site to site as needed, in an ad hoc and flexible pattern, as compared with the others who had more fixed work locations. I find that Ms Roson was responsible for the recruitment of both Ms McCalla and Ms AC.[44]From the above, I find that there was no obvious racial “profile” in respect of the Event Planners placed in Embankment Place, as compared with More London.(i) In More London, there were: the claimant (black African); Jodie McCalla (black Caribbean) and Ms Wray (white British).(ii) In Embankment Place, there were: Ms “KK” (Asian); Mr “E” (black); Mr Burrows (white), Ms Strainer (white) and Ms “AC” (white), although the latter was intended to be a more flexible “floater” resource in the Event Planning team. Claimant’s dyslexia & anxiety and respondent’s knowledge [Issues 10 to 12] Dyslexia[45]The claimant was diagnosed with dyslexia whilst at university in 2013 and I have been provided with a copy of the diagnostic report. The claimant did not provide a copy of this to the respondent (until these proceedings).[46]At the conclusion of the Hearing, Mr Green for the respondent, accepted that the claimant was a disabled person by reason of her dyslexia at the material time, within the meaning of section 6 of the Equality Act 2020 (“EA 2010”). However, the respondent disputes that it knew or could reasonably have been expected to know that she had dyslexia at the material time. The material time is the date of the alleged disability discrimination – namely, February to July[47]In late April 2022, the claimant’s work location was moved from Embankment Place to More London. This was in circumstances where the claimant had experienced a discomforting work interaction with a catering manager employed within the WSH group. He made a comment to the claimant about her poor reading out loud (of an event order). This was in front of other team members, during her probation period and she had to explain that she had dyslexia. The incident was raised with Steph New, the Events Manager (and the claimant’s line manager) and Ms New escalated it to Alice Loose, who was a more senior WSH manager, employed by its Baxterstory brand, on the PwC account. The claimant was told that a meeting would take place to discuss the incident but this never took place. As a result of these events, the claimant was transferred to PwC’s More London site.[48]When asked about this matter during her evidence, Ms Roson denied any knowledge of it, pointing out that she had only started employment with the respondent in June 2022. I accept her evidence in this regard: Ms Roson was responsible for 160 employees across 18 sites and Ms Newton (her predecessor in the role of Head of Welcome Services UK) had left the respondent a couple of months or so before Ms Roson started; therefore, there would have been no handover. Ms New had addressed the issue and the claimant had been transferred to More London several weeks before Ms Roson’s employment started and, as the claimant said in her evidence, there had been no further discussion about the incident with the catering manager (until she mentioned it to Mr Fiscal in February 2023). The claimant does not suggest that she told Ms Roson herself about the facts of the incident, nor about her dyslexia. The claimant did refer to “an unresolved incident that took place with a previous manager” in her email of 16 February 2023, which was copied to Ms Roson. However, there was no reference in this email to the facts of the incident nor to the claimant’s dyslexia.[49]Accordingly, I find that it is more likely than not that – as recalled by Ms Roson – she was not actually told the details about the “unresolved incident”, nor about the claimant’s dyslexia. Whether Ms Roson should be deemed to have constructive knowledge of the claimant’s dyslexia and, if so, at what point in time is addressed in my ‘Conclusions’ below.[50]The following year (2023), the claimant had a period of absence for “workrelated stress” from 23 February 2023 to 16 March 2023 and from 15 to 25 March 2023 (returning to work on Monday 27 March 2023). She was, therefore, off work for 22 working days. This was in connection with being told, on 14 February 2023, that she would be moved back to PwC’s Embankment Place site from More London. When the claimant and Mr Fiscal had discussed this possibility on 10 February 2023, she had told him about how she had come to be transferred away from Embankment Place to More London in April 2022. In that conversation, the claimant referred to her dyslexia. I, therefore, find that Mr Fiscal knew about the claimant’s dyslexia, from 10 February 2023 onwards. I find that Mr Fiscal knew specifically that this affected the claimant’s ability to read out loud but that the claimant did not give him other details about how her dyslexia affected her (including about any need for written materials to be in the same size and/or consistent font). Mental health[51]In February 2023, the claimant emailed her team, including Mr Fiscal and Ms Roson, about a proposal that she should change work location; and she also emailed Mr Fiscal about her concerns in relation to the new uniforms which Event Planners were required to wear.[52]In her two emails about work location on 16 February 2023, she referred to the need for her mental health to be protected and explained her concern that having to move back to Embankment Place might impact negatively on her mental health, asking for support from her management and from HR.[53]In relation to the uniforms issue, she emailed Ms Roson, copied to Mr Fiscal, (on 13 February 2023) stating, “I don’t feel confident to be seen nor speak with clients or other PwC staff, I feel embarrassed to do show-rounds and my anxiety about how others are judging me is making it very difficult to concentrate and stay productive…I really do hope my concerns for my mental health and inability to perform my role effectively at my usual capacity due to this change are considered…”.[54]On 24 February 2023, the claimant emailed Mr Burrows, Ms Strainer and Mr Fiscal stating that she needed time off to look after her health and that she felt she had tried to push through her “burn out phase” but her doctor had ordered her to take time off work. On the same date, she emailed Mr Fiscal explaining that she was not mentally well enough to work due to stress and pressure at work, particularly in relation to the proposal for her and Mr Burrows to swap work sites, with her moving to Embankment Place. She was then away from work on ill-health absence from 23 February until 27 March 2023. Time off work[55]The claimant had visited her GP on 23 February 2023. She reported that she had been having a hard time at work, that her workload was quite heavy and she referred to her father’s multiple strokes and hospitalisation. The GP records in the Bundle only go back to 29 November 2022 but, upon reviewing the summary list of active issues, significant past issues and minor past issues, which go back many years, the first entry in relation to psychological health issues is 23 February 2023.[56]During cross-examination, the claimant said that her symptoms of anxiety had been more long-standing and that the reference to chest pains in June 2020 was, in fact, a reference to symptoms related to stress, although she had not made that link at the time. However, I note that the chest pains are referenced in the medical records as being musculoskeletal.[57]On 23 February 2023, the claimant was signed off work for three weeks for work-related stress; and, on 15 March 2023, her fit note was extended for a further 10 days.[58]In messages between the claimant and Adam Burrows on 26 February 2023, she said that she was feeling “much much better” and that she was “already healing from the trauma”; and, and 3 March 2023, in messages with Ms Wray, she stated that she was feeling “so much more relaxed” and was able to look at things more clearly.[59]The claimant spoke on the phone to Mr Fiscal on 15 March 2023, and messaged him. In her message, she told him that she was “getting there” but was not yet 100% and so had sought an extension to her fit note whilst waiting to start therapy. She asked him whether they could set up a meeting as “it will also help me with my anxiety”. She returned to work on 27 March 2023. The claimant did not have a Return to Work meeting with Mr Fiscal. On 17 April 2023, in her performance review form, the claimant referred to her mental health having been “heavily impacted” by both workload and “the lack of support and hostility I received from management” and stated that she would like more support to improve her relationship with management.[60]On 15 March 2023, the claimant reported to her GP that she believed work was taking steps to reduce the amount of stress she had been under and that the situation with her father had somewhat improved. The claimant re-attended her GP on 26 July 2023, four weeks after her resignation and the day before her employment actually terminated. At that time, the symptoms of stress at work were diagnosed by her GP as a Mixed Anxiety and Depressive Disorder. The claimant reported an unpleasant situation at work whereby she had “handed in notice due to bullying. Says she was publically [sic] humiliated in from [sic] of colleagues. Now on gardening leave. Struggling with mood. Feeling low and anxious. Some anhedonia and poor sleep present”. The GP evidently discussed medication with her, issuing a prescription for Citalopram and signposting her to talking therapy.[61]Thereafter, the claimant attended her GP in connection with her mental health on 10 and 23 October 2023, reporting a worsening of her mood and anxiety symptoms – she had only started to take the Citalopram in late September 2023 as she reported to the GP that she was apprehensive about starting the medication but, in fact, she appeared to be tolerating it well. The claimant was issued with a Fit note on 23 October 2023 and on 8 February 2024 and was assessed for Talking Therapies on 26 March 2024, where she was assessed as having mild symptoms of low mood and severe symptoms of anxiety. She had a course of Cognitive Behavioural Therapy and was discharged in August 2024 as she did not find the CBT helpful. At that time, she was assessed as having moderate symptoms of anxiety. Impact statement[62]The claimant was ordered by EJ Evans (at the PH on 6 September 2024) to produce a Disability Impact Statement which she duly provided. She was specifically asked to answer the question, “How long has the claimant had anxiety?”, to which she answered: “I began experiencing severe anxiety symptoms in early 2023, as documented in my medical records. My first medical consultation for work-related stress occurred on 23rd February 2023. The anxiety persists, and treatment is ongoing as of December 2024”. The claimant was also asked to respond to the question, “Give the dates when the effects of the anxiety started and stopped”, to which she replied, “Effects began in early 2023”. She refers to the impacts of her anxiety, in relation to concentration, communication, decision-making and physical symptoms (such as palpitations, excessive sweating and a tight chest). She describes, in her Impact Statement, how discussions about swapping work sites with Mr Burrows triggered an anxiety attack and led to her being signed off work for stress and anxiety. Occupational health[63]In her evidence, Ms Roson stated that she had discussed a possible occupational health referral for the claimant with both Mr Fiscal and Mr van Schalkwijk but left this for Mr Fiscal to deal with, since he was the claimant’s line manager. In his evidence, Mr van Schalkwijk recalled some discussion about a possible occupational health referral and stated that a referral would often be made, in connection with mental health sickness absence, where the employee had been absent for at least 20 working days. Ms Roson stated in her evidence that it could take up to two months to refer an employee to occupational health. I accept this evidence as it is plausible and consistent with my experience of other cases.[64]In early April 2023, Mr van Schalkwijk became aware of a potential disciplinary issue in respect of the claimant, which led to a ‘Letter of Concern’ being issued. I shall come back to this later in my fact-finding. The claimant had email and telephone contact with him at that time, referencing discrimination and the possibility of submitting a formal grievance. He was also copied into emails in June 2023 about the claimant’s dissatisfaction with new uniform requirements and the way that these were being implemented.[65]Mr van Schalkwijk’s evidence is that it was on receipt of an email on 14 June 2023 – in which the claimant raised concerns about Mr Fiscal’s conduct and again referred to discrimination and harassment and to wishing to make a formal complaint – that he recalls discussions with Mr Fiscal about a possible OH referral for the claimant. The claimant was unaware of any discussion about a possible occupational health referral.[66]On the balance of probabilities, I find that a discussion did take place about a possible occupational health referral for the claimant in mid-June 2023, that there was no concluded decision to make a referral, this was not something that was ever raised with the claimant and an appointment did not take place. Uniform issues – February 2023 [Issue 5(d)][67]A new uniform was introduced by WSH in early 2023. Uniform “fitting” sessions were arranged over one or two days in January 2023 but neither Ms Wray nor the claimant attended these fittings, because they were busy (as noted in a WhatsApp message from Ms Wray to the claimant on 14 February 2023). Both of them had concerns about the way the uniform looked on them and the way it made them feel. In the claimant’s case, she felt the fabric was not breathable and the cut of the shirt was especially unflattering. She felt hot in it and it made her sweat more than usual.[68]At a team meeting on 10 February 2023, the Event Planners raised various concerns about the new uniform.[69]On 13 February 2023, Mr Fiscal sent Ms Wray a WhatsApp message about the fact that it was the “uniform launch” that day and so “everybody” had to wear it from then onwards. A similar message was sent to the claimant, which she referenced in her WhatsApp messages with Ms Wray that day. Ms Wray replied to Mr Fiscal saying she understood that he had to enforce the uniform requirements but she wanted to speak to someone about it, preferably Ms Roson. That discussion happened the next day (14 February 2023), with Mr Fiscal, Ms Roson and Nikki Woods (Account Director for WSH). The claimant was on leave on 14 and 15 February 2023 so could not have attended that meeting.[70]Ms Wray reported back to the claimant about what had been discussed (via WhatsApp). In one of her messages to the claimant on 14 February 2023, Ms Wray told her that management had agreed to:(i) get different trousers that are fitted and feminine(ii) see about a blouse alternative, in place of the shirt(iii) allow them to wear the supervisor address but they would need to send in measurements to get it fitted “to be more suitable” She also told the claimant that management would be speaking to her about it when she returned to work after her leave.[71]On 13 February 2023, the claimant had emailed Ms Roson (copying in Mr Fiscal), raising concerns about the uniform. She pointed out that it made her feel uncomfortable and embarrassed and that the shirt was inappropriate as it caused her to sweat excessively. She also explained that she had not been able to purchase appropriate shoes due to a lack of funds at that time. She said that the uniform changes were making her anxious about how others were judging her and making it difficult to concentrate and stay productive. She asked for her concerns to be considered and said that she looked forward to hearing back from her managers. She did not ask for a meeting or discussion.[72]On 15 February 2023, Mr Fiscal followed up with the claimant, by email, to say that he, Ms Woods and Ms Roson had spoken to Ms Wray the previous day and “there are a few more options available that Kat would be able to describe a little more”. In fact, Ms Wray had already done that via WhatsApp. Mr Fiscal also asked the claimant to pick out the shoes she would like and he would ensure they were ordered for her.[73]The claimant replied to confirm which shoes she wanted and stated: “Ok great! Looking forward to it. I will catch up with Kat when she is back. Thank you so much for the offer Ludo, I really appreciate that” There was no suggestion by the claimant in her email that she wanted or was expecting any further discussion with her managers.[74]In her evidence, the claimant stated that Ms Wray was offered a meeting and was given the option of having her outfit altered, whilst the claimant was not shown the same consideration.[75]I find that Ms Wray did have a meeting with management on 14 February 2023, which she had requested in her text message to Mr Fiscal on 13 February 2023. I find that the claimant did not request a meeting. I find that the claimant had the same opportunity for alterations to her uniform and other options as Ms Wray. The only difference in treatment was that Ms Wray had a discussion with management in a meeting, whilst the claimant’s concerns were dealt with over email. The claimant’s transfer back to Embankment Place [Issues 5(a) & 13 to 15][76]I now deal with some further fact-finding in connection with the proposal in February 2023 for the claimant and Mr Burrows to swap work locations. Mr Burrows’ resignation[77]In January 2023, Mr Burrows gave notice of resignation. In WhatsApp messages in a Group Chat with the claimant and Ms Wray on 3 February 2023, he conveyed that he was struggling with the working environment in London and wished to move back to Belfast. He stated that, “there is a massive amount of “change” (LOL) that really needs to happen throughout these offices” and “I just don’t think I’m the right person for this job or the time is just not right for me. I struggle massively every day I come in”.[78]Having handed in his notice of resignation in January 2023, Mr Burrows had a discussion with Mr Fiscal. This is referred to in the same WhatsApp messages in which he says that: “I told you both a couple of week [sic] ago, a [sic] handed my notice in and Ludo [Mr Fiscal] had advised me to take some time and think about it which I have.”[79]In her evidence to the Tribunal, which I accept as it is not inconsistent with Mr Burrows’ WhatsApp messages, Ms Roson explained that she was aware that Mr Burrows was unhappy and that, from her understanding, this was more about his general situation in London and that he wanted to return to Ireland. She later stated that she knew that Mr Burrows found Embankment Place challenging as compared with the Event Planning team in Belfast which was smaller and less pressured. She explained that Mr Burrows did say that he felt under pressure but that the main reason he said he wanted to leave was to do with his experience of living in London.[80]Mr Burrows discussed his concerns with Mr Fiscal who told him to take some time to think about it. By early February 2023, according to the WhatsApp messages on the Group Chat with the claimant and Ms Wray, Mr Burrows had decided that he still wished to resign. Proposal for the claimant to “swap” with Mr Burrows[81]On 10 February 2023, Mr Fiscal and the claimant had their regular one-to-one meeting. He asked her if she would be willing to “swap with Adam” who was struggling with the work environment at Embankment Place and his mental health. The claimant told Mr Fiscal that, whilst she wished to support Mr Burrows, she was not willing to be placed back into that environment without changes being implemented.[82]During their meeting, the claimant explained to Mr Fiscal the background to her transfer the previous year from Embankment Place to More London; referring to the criticism made by the catering manager of the claimant’s reading skills and to the fact that she is dyslexic. The claimant also reminded Mr Fiscal about her father’s heart condition and significant ill-health and described how this, along with the team’s intense workload, was causing her to feel stressed and anxious.[83]The claimant told Mr Fiscal that, in her view, Mr Burrows’ concerns about Embankment Place were valid and that an alternative solution needed to be found. As stated by the claimant in her later email to Mr Fiscal (on 16 February 2023), they discussed the need to put in place some specific measures to improve the working environment at Embankment Place to ensure that her mental health was protected. From this, I infer that the claimant expressed her concerns about transferring back to Embankment Place but did not rule it out – in other words, she made her agreement to the proposal contingent upon there being further discussion about changes being implemented to improve the working environment at Embankment Place. Mr Fiscal’s description of the claimant as “strong”[84]In her witness statement, and in oral evidence, the claimant stated that when she explained her concerns about the working environment at Embankment Place, Mr Fiscal responded by stating that she was “strong” and would, therefore, be able to manage the various issues there. I accept that Mr Fiscal did say this.[85]The claimant further stated in her evidence that Mr Fiscal’s observation (that she was “strong”) was based on a typical yet harmful stereotype about black women – namely, the expectation that they remain strong in the face of adversity. The claimant has not adduced any other evidence to support her assertion that, by calling her “strong”, Mr Fiscal engaged in racial stereotyping.[86]There is no explanation from Mr Fiscal as to why he described the claimant as “strong”. As I have already noted, he was not called by either party to give evidence; and Ms Roson has explained that he had left the respondent’s employment whilst on a Performance Improvement Plan and he did not wish to be involved in these proceedings (and, indeed, was on holiday in Lisbon during the Hearing). I also note that the claimant’s allegation about racial stereotyping (Mr Fiscal’s description of her as “strong”) was not something that the claimant mentioned in her pleaded case, nor is it referenced as having been mentioned by her in the preliminary hearings in September 2024 and January 2025 and it is not contained in the List of Issues.[87]The description of the claimant as “strong” is also not something that appears in any of the WhatsApp messages I have been taken to by the parties, nor the emails. As such, that comment is not a matter that the claimant raised any concerns or observations about at the time. In answer to questions in crossexamination, the claimant accepted that she did not say at the time that she thought Mr Fiscal’s reference to her being “strong” was connected to race.[88]Accordingly, until the claimant’s witness statement (dated 26 May 2025) was exchanged, neither the respondent nor Mr Fiscal could have known that the claimant would be making this allegation of racial stereotyping on the part of Mr Fiscal. Ms Wray’s views on moving to Embankment Place[89]The claimant’s evidence – which was not contradicted by the respondent nor by any of the emails and messages I have read – was that, in the course of private conversations, Ms Wray revealed to the claimant that she had made clear to Mr Fiscal in a one-to-one meeting that she was not willing to move to Embankment Place; and was then never asked about it again. Ms Wray’s objection to moving to Embankment Place is also not inconsistent with Ms Roson’s evidence; namely, that she understood that Ms Wray’s commute meant that she could not transfer to Embankment Place. I find that Mr Fiscal did speak to Ms Wray about moving Event Planners around, given Mr Burrows’ likely departure and the recruitment of new Event Planners (that is, Ms McCalla and, in due course, Ms “AC”); and I also find that Ms Wray was clear with Mr Fiscal that she would be unhappy about being moved to Embankment Place due to a more difficult commute.[90]I, therefore, find that Ms Wray had told the respondent that she was not willing to move to Embankment Place; Mr Burrows had told the respondent that he was unhappy in London, in particular at Embankment Place, that his mental health had deteriorated and that he would be resigning; and that the claimant told the respondent that she had serious concerns about transferring back to Embankment Place without necessary measures to protect her mental health but she did not refuse outright to be transferred. Messages and emails about proposed changes to work location[91]On 14 February 2023, Mr Burrows messaged the Group Chat to say that Mr Fiscal had just informed him that he would be moving to More London. A few minutes later, at 15:03, Mr Fiscal emailed the Event Planning team stating: “As you are all aware, a few changes are taking place in our team: - Jodie will join us in ML from February 20th, - Adam will start a new journey on March 3rd, - I am actively seeking a replacement for Adam in mid-March. As a result, beginning February 20th, the team allocation will shift somewhat to ensure the same level of event delivery across the EP and ML. To do so, the team repartition is as follows: More London: Kat/ Adam/Jodie (training will be across the 2 sites) Embankment Place: Olivia/Odja”[92]The claimant was on annual leave on 14 and 15 February 2023; and returned to work on 16 February 2023 to find the email from Mr Fiscal (which I have set out above). There had been no further discussion with her about the proposal to transfer her back to Embankment Place.[93]The claimant messaged Ms Wray on WhatsApp on 16 February 2023. She referred to the fact that, whilst she had been on leave, numerous entries to events in Embankment Place had been added to her calendar. In her messages, it is clear that she was unhappy about the fact she has been told to move back to Embankment Place. Ms Wray replied to explain her understanding – namely, that this had not been agreed to and that it had been a plan which was meant to be discussed, it was “not set in stone” and that she was, therefore, shocked when she received the email from Mr Fiscal announcing the work location changes.[94]The claimant responded to Mr Fiscal’s email stating: “Any update on what will be done to ensure I have a safe and productive environment to work in as an event planner at the EP office? I was hoping that the strategy day would give us a chance to smooth out the issues at ML and EP (especially from evens team perspective) but it was understood that EP would have its own way of working and ML has its own too. I worked really hard to create that environment for myself here at ML and although I am very positive and optimistic that things may get better, I need more assurance than words at this point. Just reiterate [sic] that I was only moved to ML because of an unresolved incident that I was never updated on and since seen colleagues from my team continue to struggle with the same issues until they were forced to resign. I hope you can understand my concern. I look forward to hearing and seeing things put in place so that I can continue to operate to the best of my abilities and support my Oneteam at EP.” She copied in the Event planners and Ms Roson.[95]As such, the claimant was still not refusing to be moved to Embankment Place and was indicating her willingness to do so, so long as things were put in place to enable her to be confident that the working environment would be safe and productive.[96]Mr Fiscal replied to say that he valued everyone’s mental health, that the changes were necessary for the success of the Events department, and that he had created an induction plan that “will” be shared with the claimant the following day to welcome her to Embankment Place and to assist her with settling in. I have not been shown a copy of any induction plan (if one ever existed in writing) and the claimant says that none was shared with her or the team and I accept the claimant’s evidence in that regard as, if it existed, it is more likely than not that Ms Roson would have had a copy and would have mentioned this in her evidence and/or it would have been disclosed. 16 February 2023 email & first alleged protected act [Issues 5(g)(i) and 16(a)][97]The claimant responded by email, at the end of the day on 16 February 2023. This was copied to her team, Mr Fiscal and Ms Roson. The claimant relies on this email as her first alleged protected act for the purposes of her victimisation claim.[98]In the email, the claimant asked why she was selected to move to Embankment Place, notwithstanding the concerns she had expressed, including in relation to the incident with the catering manager. The claimant did not say directly, nor imply, that she was being treated differently to the other Event Planners (in particular, Mr Burrows and Ms Wray), nor did she refer to her race. In answer to questions in cross-examination, the claimant accepted that her email did not make any allegation of discrimination. She also accepted that, in her messages at around that time with Ms Wray, she did not mention that she thought that her race was the reason, or part of the reason, for Mr Fiscal’s decision to transfer her back to Embankment Place. The claimant agreed that she would express thoughts to Ms Wray, who was quite a good friend of hers, that she might not share with her managers. She also agreed that she did not have in her mind at the time that her race had played any part in the decision to transfer her back to Embankment Place.[99]The claimant alleges that the complaint in her email of 16 February 2023 was ignored and that this was less favourable treatment because of race, in comparison to Mr Burrows.[100]In her email, the claimant also asked about Mr Fiscal’s induction plan and whether processes would be streamlined across the two PwC sites. Finally, she asked to have an HR contact “to support us in finding an understanding.”[101]The next day, 17 February 2023, Mr Fiscal replied to her email with a ‘Google Meet’ invite link for a half hour meeting. He stated, in the invitation, that he was “adding some time together to talk through our last email conversation”, and he suggested that they could grab a coffee.[102]The claimant replied to say that she would prefer to stick to group conversations and email “regarding things like this” as that would help to reduce her anxiety. She explained that this was “nothing personal at all” and that she hoped that keeping things in writing would avoid misunderstandings, tension or discomfort which could negatively impact “either of our mental health”, saying “I am sure you are also overwhelmed with a lot and I wouldn’t want to make you feel how I am feeling”. The claimant suggested that they could look over Mr Fiscal’s induction proposal in the team ‘catch-up’ and that she was happy to have a coffee with him about anything else.[103]Mr Fiscal forwarded the claimant’s email to Ms Roson who replied to him saying “this is becoming ridiculous”, and stating that the claimant should not be allowed to avoid catch-ups with her line manager. She asked Mr Fiscal to seek advice from someone called Dana (in the absence of Mr van Schalkwijk). I was told that this was a reference to Dana Singer, the respondent’s Head of People. Ms Roson followed up ten minutes or so later with an email to Mr Fiscal stating that she had sent an email to Ms Singer copying him in and he responded to say he had seen it. That email was not put into evidence so it is not clear whether or not advice was sought from Ms Singer nor the substance of any such advice.[104]On the afternoon of 17 February 2023, the claimant says there was a team meeting at the More London site, attended by her, Mr Burrows, Ms Strainer and Mr Fiscal. Ms Wray was on annual leave. The claimant says that there was no clear induction plan nor any reassurance given about measures to be implemented to improve the environment at Embankment Place. The claimant also says that it was agreed that no final decision about work location would be made until Ms Wray returned from her leave on 22 February 2023. I accept the claimant’s evidence in this regard. It seems likely that a team meeting would have taken place as these occurred at regular intervals and, indeed, the claimant mentioned the “team catch up” in her email of 17 February 2023.[105]The claimant says that there was no follow-up meeting or discussion upon Ms Wray’s return to work on 22 February 2023. Instead, that evening (at 18:02), Mr Fiscal emailed a distribution list of over thirty people, mainly WSH employees but including some PwC employees (such as building managers) as well security staff. Firstly, Mr Fiscal introduced Ms McCalla who had started at the More London site that week. He then announced that the claimant and Mr Burrows would be swapping work location (with Mr Burrows moving to More London and the claimant transferring to Embankment Place). He asked everyone to welcome them all aboard. A couple of friendly emails came back from people in the email distribution list.[106]Ms Roson’s evidence is that Mr Fiscal told her that the claimant was willing to swap with Mr Burrows and go back to Embankment Place. I find that Mr Fiscal probably did say something to the effect that the claimant was willing to relocate to Embankment Place since that is consistent with her emails, in which the claimant said she was willing to do so, albeit this was contingent upon measures being implemented to improve the working environment there. Ms Roson accepts she read those emails although her recollection was hazy about precisely when she did so. She, therefore, knew by 22 February 2023 at the latest, that the claimant’s agreement to relocate to Embankment Place was not unconditional nor happily or freely given. 23 February 2023 email & second alleged protected act [Issues 5(g)(ii) and 16(a)][107]The claimant saw Mr Fiscal’s email of 22 February the next morning. She pressed “reply all”, so that her response email was sent to all the same people in the distribution list for Mr Fiscal’s email. She indicated that there had been a “miscommunication” and that a few conversations still needed to take place and that a proper handover proposal was required from Embankment Place management “to ensure we are able to perform our role effectively”. The claimant mentioned that she had raised some “serious valid points” regarding the disruption and negative impact a transfer back to Embankment Place would have on her mental health and she made clear that she expected her management to ensure that her mental health had all the necessary support. She ended the email saying: “I really need things to be properly put in place to support me with better procedures and communication. Once this has been shown to me and put in place I will be more than happy to be at EP! I am sure we can make it work especially if it's done right from the start. Looking forward to hearing back from management about this plan.”[108]I note that, by this email, the claimant was again communicating her conditional willingness to move to Embankment Place, rather than outright refusing to do so.[109]The claimant relies on this email as her second alleged protected act. In crossexamination, the claimant accepted that the overall thrust of her email was to be critical of what had been communicated to the Event Planning team and she accepted that she did not accuse anyone of discrimination. She said that the purpose of her email was to say that she had raised concerns about being in an environment which harmed her mental health and that her concerns about her mental health were not being listened to. She accepted that she was not accusing anyone of doing anything to her which created an intimidating, hostile, degrading, humiliating or offensive environment for her relating to race or disability.[110]Ms Roson replied to the claimant’s email, copying in Mr Fiscal. She stated that an email to the wider distribution group (including several clients and a new employee) was not the “best platform” for raising concerns and the tone of it “was not the most positive or constructive or welcoming”. Ms Roson asked the claimant to speak to Mr Fiscal, not the client team at PwC, about her role or any suggestions or complaint, and pointed out that the email had the potential to damage the respondent’s reputation and put the client contract at risk. Ms Roson offered to have a chat with the claimant.[111]The claimant, however, started a period of long-term sick leave that day, only returning to work on 27 March 2023. When she returned to work, she was not transferred to Embankment Place but continued to work at PwC’s More London site. Mr Burrows encouraged to re-think his resignation [Issue 5(b)][112]In a WhatsApp voice note message from Ms Wray to the claimant on 24 February 2023, she referenced a conversation which she had had with Mr Fiscal that day, stating: “So he's [this being a reference to Mr Fiscal] basically now said that me and Jodie will be in ML, Adam is going to stay with Olivia in EP, and a lot of people have made noise with him apparently now, saying that they don't want him to leave and kind of without saying sorry but kind of saying you know we understand, we've treated you badly. And he said that he and Oliver are pushing back on a lot more now. So Adam's had his chat with Paola. I went for a drink with him after work just so that we could have a proper catch-up. But yeah, so Ludo was basically just saying that he was really trying to make an effort to make sure that everyone in EP made you feel welcome, and he wanted to set up like a coffee morning for you to properly welcome you in, so you’d like properly be introduced to everybody again even though they already know you, or a lot of people know you over there. And I said, well, have you had this conversation with her? Because this just needs to be an open conversation to discuss what's going to happen”[113]From this voice note, it is apparent that there were conversations between Mr Burrows and management by which he understood that he was being encouraged not to leave his employment with the respondent.[114]I note that, after those discussions, Mr Burrows evidently decided to continue working for the respondent in London. He did so until November 2023, at which point he relocated back to Belfast. I find that, when he left his employment with the respondent, he was not put on garden leave and was not escorted off the premises by Security staff.[115]The claimant sent a voice note back to Ms Wray on 24 February 2023 in which she stated: “Like you [Ms Wray] said, we should sit down and have a conversation. He’s avoiding it for whatever his reasons are, and we need to understand why because that would give us clarity on what is being done [….] It doesn't make sense to me. So yeah, and if he's [Mr Fiscal] now saying that Adam and Liv are gonna stay there, then what am I doing? Am I being the floater? Like, what? That doesn't mean. I mean, what does that even mean?”[116]On 3 March 2023, Ms Wray messaged the claimant to tell her that Mr Burrows had decided to stay (that is, he had decided not to resign after all) and she mentioned that another Event planner had been recruited so that they would be a team of six planners. I find that this was a reference to Ms “AC”. Ms Wray also stated that Mr Burrows was still keen to be located at PwC’s More London site.[117]From these messages, I find that the claimant was made aware by Ms Wray on 24 February 2023 of the fact that Mr Burrows would be remaining at Embankment Place for the time being but that he was still hoping to be relocated to the More London site; and I find that the claimant was not told by her managers (nor by Ms Wray) where she would be expected to work on her return from sick leave. Ms Strainer encouraged to re-think her resignation [Issue 5(b)][118]The claimant says in her tribunal claim that, like Mr Burrows, when Ms Strainer handed in her resignation, she was encouraged to re-think it and remain in her employment with the respondent [Issue 5(b)].[119]Neither party has adduced much by way of evidence in relation to Ms Strainer’s departure from her employment with the respondent.[120]In a WhatsApp voice note message on 24 February 2023 from Ms Wray to the claimant, there is a reference to Olivia “who has also said she is going to leave” but there is no further detail other than a vague inference that this was to do with a difficult environment at Embankment Place.[121]The claimant says in her witness statement that Ms Strainer had expressed grievances about workload or the toxic work environment and that she was not placed on garden leave nor subjected to “public removal” (I assume that by “public removal” she means being escorted off the premises by Security staff). Ms Roson says in her statement that Ms Strainer resigned her role in order to relocate to Thailand.[122]On the basis of the voice note from Ms Wray, I find that it is more likely than not that Ms Strainer had also expressed some unhappiness about the working environment at Embankment Place because that was a common theme and so is plausible. However, I accept Ms Roson’s evidence that Ms Strainer’s stated reason for leaving the respondent was that she was going to Thailand. There is no evidence that either Mr Fiscal or Ms Roson spoke to Ms Strainer to try to change her mind. I find that she was not placed on garden leave and that, when she left, she was not escorted off the premises by Security. Jodie McCalla’s departure[123]I also record here my brief findings about Ms McCalla’s departure from the respondent in November 2023. I find that she was unhappy in her role and had raised a complaint about it. I find that she came to perceive that there was racially motivated conduct towards both the claimant and herself. I have no details about any specific conduct towards Ms McCalla and make no findings about that, other than to find that she did raise complaints about race discrimination prior to her employment terminating. By this time, she was on sick leave, so was no longer in the workplace. Ms Roson confirmed that Ms McCalla was not put on garden leave and I also find that she was not escorted off the premises by Security staff; but, of course, she was not actually in the workplace at the point of resignation.[124]It was suggested on behalf of the respondent that Ms McCalla was disgruntled in respect of her employment with it (and its termination) and that her evidence should, accordingly, be disregarded or that less weight should be attached to it.[125]I note here that I found Ms McCalla to be a straightforward witness. She was prepared to accept certain points, even though these might not advance the claimant’s case – for example, she agreed that Ms Roson was upset on 28 June 2023 and that she may well have given her a hug; and she agreed that, whilst she now assumed there was a racial aspect to it, at the time, she was unsure of the reasons for differences she had observed in relation to the way Ms Roson spoke to the claimant and to others at a team meeting on 12 April 2023. I come back to that meeting later in my fact-finding. Disciplinary case & letter of concern – 4 to 6 April 2023 [Issue 17(a)][126]Having been copied into the claimant’s email of 23 February 2023 (which was sent to a large number of recipients, including both WSH and PwC employees), Ms Roson decided that she would need to escalate this to be considered in line with the respondent’s disciplinary procedure. She felt that the claimant’s conduct in emailing her concerns in the way she had, copied to some PwC personnel, was – at the very least – careless and had the potential to damage the client relationship between WSH and PwC.[127]On 15 March 2023, the claimant spoke to Mr Fiscal to update him about her sickness absence and explain that her GP was signing her off until 25 March 2023. In their phone call, Mr Fiscal informed the claimant that a disciplinary investigation might be instigated upon her return to work but this had been escalated above him. This made the claimant feel more anxious.[128]On her return to work on 27 March 2023, there was no mention of any disciplinary investigation but the claimant was asked to attend a ‘catch-up’ with Mr Fiscal on Monday 4 April 2023. She thought this would be a return to work discussion. Instead, she was told that there was to be a disciplinary investigation meeting in connection with her email of 23 February 2023, which had been copied to PwC personnel.[129]On 4 April 2023, the claimant was invited to attend a disciplinary hearing on 6 April 2023, to be chaired by Carla Hughes (Welcome Services Manager, North, Scotland and Northern Ireland). Ms Hughes reported into Ms Roson. The disciplinary invite letter referred to “misconduct” in relation to “inappropriate emails related to client”. The claimant was warned that the outcome of the disciplinary meeting could result in disciplinary action and she was given the right to be accompanied. Ms Hughes enclosed the disciplinary procedure and copies of the claimant’s email of 23 February 2023 and Ms Roson’s reply.[130]About 40 minutes later, the claimant emailed Mr Fiscal (copied to Ms Roson) explaining that her email of 23 February 2023 had been a reply to Mr Fiscal’s email and she did not intentionally copy any clients in. She said: “I do agree however that an investigation should take regarding this situation as I would deeply regret for you/management to have an impression that I would or have done anything out of malice to jeopardize the contract with the client after all of my efforts and contributions to not only work effectively despite very difficult working conditions but have a better connection with the client as a Portico employee.” I find that the claimant had not been accused of acting maliciously.[131]The claimant emailed Ms Hughes on 4 April 2023, following which Ms Hughes emailed her a copy of WSH’s Employee Handbook. On 5 April 2023, the claimant emailed Ms Hughes to ask whether the meeting on 6 April 2023 was an investigation meeting or a disciplinary hearing. Ms Hughes forwarded this to Mr van Schalkwijk to ask for his advice. He replied to say that he had hoped that Mr Fiscal’s conversation with the claimant (presumably, on Monday 4 April 2023) would have clarified matters but he could see that, actually, it had led to some confusion. He explained that, in the disciplinary procedure (paragraph 4), an investigation was not always necessary and that, in this case, the conduct issue (that is, the claimant’s email) was clear and so it was appropriate to go straight into the disciplinary process.[132]The claimant herself emailed Mr van Schalkwijk on 5 April 2023. She explained that she was only sent the Employee Handbook on 5 April 2023 and she did not believe her managers were dealing with the conduct issue fairly as they were “twisting” the events to make it seem like she had acted with malicious intent. She said that she felt she was being treated both unfairly and was being discriminated against. She asked to speak to Mr van Schalkwijk before the hearing. In her witness statement, the claimant references speaking to Mr van Schalkwijk between her return to work on 27 March and 4 April 2023 but there is no mention in her statement of a call between them on 5 or 6 April 2023 and Mr van Schalkwijk does not refer to a call between them at that time in his statement. I, therefore, find there was no call between them immediately before the hearing.[133]The disciplinary hearing went head the next day (6 April 2023). The claimant explained that she had concerns about the proposal for her to move to Embankment Place and that she felt she was not being listened to. She accepted in the hearing that she should not have sent the email to the wide distribution group, including clients, but this had been done in error and was because she had hit “Reply All”.[134]At the end of the hearing, Ms Hughes told the claimant that she would be sent the minutes of the hearing and a letter of concern. After the hearing, Ms Hughes sent the claimant a letter in which she stated that she was concerned about the tone and content of the claimant’s email of 23 February 2023 and so was issuing her with a letter of concern. Ms Hughes stated that, going forwards, she would expect work issues to be raised through the correct channels (i.e. line management, HR or the Portico/WSH senior management team) and that the claimant should review who she had included in emails before sending.[135]After the hearing, the claimant messaged Mr Burrows saying “it went as well as it could go” and “it’s just a letter of concern apparently” but that “I need management to be held accountable Bcos of the nature of the incident and how they failed to prevent it”. She said that she felt that Ms Hughes was a “genuine person”. From this, I find that the claimant was not especially surprised or distressed about getting a ‘letter of concern’ but remained discontented with her managers for not dealing with the work location proposal properly.[136]On 6 April 2023, the claimant also messaged Ms Wray and told her that she was considering making a formal complaint and she felt that she was being subjected to discrimination, bullying and harassment.[137]I note that the ‘letter of concern’ is provided for in the respondent’s disciplinary procedure (paragraph 7) which envisages that such a letter might be issued where there are minor performance concerns and that this would “normally” be after an investigation interview and would mean that the matter would not “normally” proceed to a disciplinary hearing.[138]I find that, here, because no investigation was deemed necessary (which was permissible under the respondent’s procedure), the matter moved straight to a hearing. Nevertheless, a ‘letter of concern’ was an option available to Ms Hughes under the procedure and was the least serious way of addressing performance or conduct concerns. It was not viewed, within the procedure, as disciplinary action (which is separately addressed in paragraph 17 of the procedure).[139]The claimant was not informed of any right of appeal, within the ‘letter of concern’. April 2023 – other relevant events Team meeting on 12 April 2023[140]On 12 April 2023, the Event Planners had a team meeting, attended by Mr Fiscal and Ms Roson. They discussed the size of the team and how the budget was overspent since Mr Burrows had decided to remain in London. As this appeared to imply that someone’s job was at risk, the claimant asked, “Does that mean one of us will have to go?” Ms Roson responded by saying, “Don’t put words in my mouth”. In her evidence, the claimant says that Ms Roson snapped at her. A short while later, Ms Wray asked the same question and the claimant says that Ms Roson’s reaction was calmer and her tone softer.[141]In messages with Mr Burrows later on 12 April 2023, the claimant referred to Ms Roson as a “psycho” and Mr Burrows said that he “didn’t understand the defensiveness. There were just questions being asked.” The claimant referred to the fact that when she asked a question, Ms Roson was defensive and when Ms Wray asked, she answered. In this exchange, Mr Burrows commented on how “forward” the claimant is (saying he loved this).[142]Ms McCalla refers to this team meeting in her witness statement and she was cross-examined about it. She stated that Ms Roson was needlessly combative and intimidating. She felt that this “set the tone for what became an ongoing pattern of disproportionate scrutiny and disrespect towards Black staff”. This tends to suggest that Ms McCalla did not think, at the time, that this was racially motivated and, in cross-examination, she accepted that she was not sure of the reasons for Ms Roson’s attitude at the time but later came to assume it was due to the race of the other peers in the room (who were all white).[143]Given the evidence of the claimant and Ms McCalla and the contemporaneous messages between the claimant and Mr Burrows, I find that Ms Roson was defensive in this meeting and was more combative in her exchange with the claimant than with Ms Wray. I find that the claimant was viewed by Ms Roson as someone who was not shy about coming forward with her opinions (and, indeed, Mr Burrows viewed her in this light too, albeit he found that to be a positive thing).[144]In cross-examination, Ms McCalla stated that Ms Roson was using gestures when speaking to the claimant which she did not use with others. When I asked her what gestures, she said it was racially stereotyped gestures, such as eyerolling, shaking her head, and wagging her finger. Ms McCalla did not include this detail in her witness statement. I find that Ms McCalla has misremembered this. The claimant, who refers to this team meeting in her witness statement, makes no mention at all of any racially stereotypical gestures (whereas she does allege that Ms Roson racially mimicked her on 28 June 2023, as I shall come onto later in my fact-finding). In her messages with Mr Burrows on the day of the team meeting, the claimant makes no reference to any racial mimicking or gestures. I find that it is more likely than not that the claimant and Ms McCalla have since discussed the claimant’s tribunal claim; and Ms McCalla has imported those details into her memory of the team meeting on 12 April 2023. Memory can be fallible and open to being unconsciously constructed in that way. I do not find that Ms McCalla has set out deliberately to give details which she knows to be inaccurate. On the contrary, I find that she thinks this did happen on 12 April 2023.[145]I, therefore, find there was a difference in Ms Roson’s manner and approach towards the claimant on 12 April 2023, as compared with Ms Wray, but the claimant has not proved facts from which I could conclude that race was an effective cause of this[146]On 13 April 2023, Mr Fiscal emailed the team following the team meeting the previous day. He reassured the team that their roles were secure and he expressed the respondent’s gratitude for the amazing work they all do. He emphasised the importance of timekeeping and adhering to contractual working hours. He pointed out that uniforms had now been ordered and if anyone required additional uniform pieces or had any feedback about the uniform’s quality, they should inform him. I note here that the following month, there were emails between the claimant, Ms Roson and others (with Mr Fiscal copied in). The claimant was asking when her uniform would be ordered as it had not yet been provided. It was left that the claimant would see what was in stock that would be suitable and, if not, a Team Leader dress would be ordered for her. Appraisal – 17 April 2023[147]The claimant filled in her performance review form on 17 April 2023. In it, she referred to her “leadership nature” and her ability to “put forward suggestions, be proactive, step in when there are gaps, propose solutions”. She referred to her mental health having been heavily impacted by workload and a lack of support and hostility received from management. She referred to having spoken to HR earlier in the month. She did not mention discrimination, either in express terms or by implication from the wider context. The claimant’s discussion with Mr van Schalkwijk[148]However, on 18 April 2023, the claimant messaged Mr van Schalkwijk to ask for a chat to get some “advice on my options regarding what we last discussed”. The reference to “what we last discussed” was the conversation she had with Mr van Schalkwijk at some point between 27 March and 4 April 2023.[149]A discussion then took place between the claimant and Mr van Schalkwijk which she then referenced in an email to Ms Hughes later that day.[150]The claimant and Mr van Schalkwijk discussed whether it was a good use of her time and energy to appeal against a letter of concern, particularly when she had accepted that her email should not have been copied to clients. They also discussed the claimant’s concerns about her relationship with management and that she felt she was being discriminated against by her managers. She repeated this concern about discrimination in her email to Ms Hughes that day and also stated that the need to “punish” her for the email she had inadvertently copied to client was “inappropriate, manipulative and discriminatory” and that escalating the matter was an act of bullying and discrimination. She stated that she would be going ahead with a grievance.[151]The claimant does not rely on the email or discussion on 18 April 2023 as a protected act; but I find that, from 18 April 2023, the respondent (through Ms Hughes and Mr van Schalkwijk) was aware that the claimant was alleging that she was being subjected to hostile treatment, discrimination and retaliatory behaviour for having raised concerns. Mr van Schalkwijk was first aware of the claimant’s concerns about unfair and discriminatory treatment on 5 April 2023 when she emailed him ahead of her disciplinary hearing but there was little further detail mentioned by her on that occasion.[152]On 20 April 2023, Mr van Schalkwijk sent the claimant a copy of the respondent’s grievance procedure, and reassured her that if she had any questions, she should get in touch and he would be happy to assist. The claimant thanked him in reply. She did not submit a grievance prior to her employment terminating, although she had drafted an email to Mr van Schalkwijk setting out her grievance which she emailed to herself on 13 July 2023, whilst she was on garden leave. It was never sent to the respondent. Dental appointment – 13 to 14 June 2023 [Issue 5(c)][153]On 7 June 2023, Mr Fiscal emailed Mr van Schalkwijk referring to a conversation about the claimant’s lateness since the implementation of the new rota system. He stated that he had asked team members to let him know if they were going to be late, noting that they normally did this. He explained that most of the team had no problems with punctuality but that he had been “keeping track” of the claimant’s lateness. This appeared to be from early May 2023 onwards and he listed five occasions when she was late. He also stated that the claimant mostly communicated if she was going to be late, especially if she knew that he was going to be located at the More London site that day; but that team members had mentioned to him that she was not always punctual. He also noted that, on 5 June 2023, the claimant worked from home without authorisation.[154]In cross-examination by the claimant, Mr van Schalkwijk said that one of the things he was tasked to do when he started in his role was to try to identify if there were patterns underlying any lateness or attendance issues within the team. There is no evidence of any other members of the team being monitored and Mr Fiscal’s email suggests that only the claimant’s lateness was being tracked by him; although the whole team was reminded about timekeeping by Mr Fiscal in his email of 13 April 2023. I find that the claimant’s timekeeping was considered to be problematic, as compared with others in the team, which is why hers was being monitored.[155]On 13 June 2023, the claimant arranged a dental appointment for the following morning at 10:30am, having discussed with the team when the best time was to go. Her shift was due to start at 8:30am. She contacted Mr Fiscal on Google chat and he replied to state that she needed to take a half day off. In her closing submissions, the claimant states that Mr Fiscal’s initial response was off-hand and that he remarked, “you’re always making excuses” and that this echoed the ‘angry black woman’ trope. However, this is not a point that the claimant included in her witness statement, nor does it figure in emails at this time. I find that Mr Fiscal did not make this remark, although I accept that Mr Fiscal reacted with some frustration to the claimant’s appointment and this gave her the impression that he felt that she was making excuses.[156]The claimant was aware that Ms Wray had worked from home on 16 January 2023 so that she could attend a dental appointment that day and there is a WhatsApp message in the bundle confirming this. The claimant felt that Mr Fiscal’s initial response (requiring her to take a half day off in order to attend her appointment) was unfair, in comparison with Ms Wray, and she contacted Mr van Schalkwijk. She did not say to Mr van Schalkwijk that she thought that Mr Fiscal was discriminating against her (racially or otherwise), just that it was unfair.[157]In his witness statement, Mr van Schalkwijk notes that the respondent’s general policy is to ask staff to arrange appointments in a way that is least disruptive to operations and, if that is not possible, the employee may be required to take time off for the appointment. I was taken to the “Balancing Work & Home” policy in the Bundle which stated: “We ask that you always try to make appointments with your doctor, dentist or other medical practitioner outside your normal working hours. If that is not possible, please agree a convenient time with your manager before booking an appointment. Ideally we ask that you do this within two hours of the start or end of your shift.” I note that the claimant had initially booked her appointment two hours after the start of her shift on 14 June 2023, so not quite within the two hours of her start time and that she did not seek to agree a time with Mr Fiscal, contrary to the terms of the policy.[158]In his witness statement, Mr van Schalkwijk does not make any reference to his contact with the claimant about her dental appointment but he did recall that contact during his oral evidence, when questioned by the claimant. He confirmed that he had a call with her; it was brief, she was quite upset as she felt that Ms Wray had been given preferential treatment. Mr van Schalkwijk said in his evidence that he had wanted to understand the context a bit more, particularly how much notice Ms Wray had given in comparison to the claimant. He agreed that he may have commented to the claimant that it seemed unfair, having heard her version. He explained that he then went on to speak to Mr Fiscal and advised him to speak to the claimant.[159]Mr Fiscal then spoke to the claimant which is referenced in an email from her on 13 June 2023 at 17:15. He told her to go to her dental appointment during her lunchbreak and she accordingly rearranged it. However, this meant that the claimant was not permitted to go to the appointment during her paid working time (since lunch breaks are unpaid – see clause 4 of the Statement of Terms and Conditions of Employment). The claimant noted in her email that Ms Wray was permitted to work from home, and attend her dental appointment during her paid working hours. The claimant was not, however, required to take a half day off.[160]Mr Fiscal replied to the claimant’s email the next morning (14 June 2023) at 07:37 to state that each situation is considered individually, and accommodations are made based on various factors such as scheduling, distance and workload and that he always tried to accommodate appointments. He thanked her for rescheduling her appointment, noting that she could attend it without her working hours being impacted. I find that this partly missed the point – namely, that the claimant was required to attend her appointment during her unpaid lunch hour.[161]I have no evidence from either party about how much advance notice Ms Wray gave to Mr Fiscal about her appointment, nor about whether her dental appointment was or was not at lunchtime. Uniform – allegation of hostile behaviour by Mr Fiscal on 14 June 2023 [Issues 5(f) & 8(d)][162]On 14 June 2023 (the date of the claimant’s dental appointment), she attended work. She was informed by the ground-floor receptionist that a building malfunction had locked the facilities room, preventing access to staff uniforms. The receptionist and the claimant were not, therefore, wearing correct uniform.[163]Mr Fiscal was at the More London site that morning. He had emailed the claimant not long before regarding her dental appointment. When he saw the claimant was not wearing the correct uniform, he accused her of flouting uniform rules. This was in front of clients and caused the claimant to feel upset. She phoned her partner, Mr Mukendi, who gave evidence in his statement about her evident distress. The claimant also messaged Ms Wray and Ms McCalla on WhatsApp, just after 9am. In her messages she referred to Mr Fiscal having “just tried to have an argument with me. I had to just walk away and stand in a booth. This is too much. Not even 2 mins in and he just attacked me. I’m sick of this shit.” In one of the messages, Ms Wray referred to the doors in the building not working.[164]Within an hour, the claimant emailed Mr Fiscal and copied in Mr van Schalkwijk, Ms Roson and Ms Woods. In her email, the claimant referred to the malfunction with the lock on the facilities room and her lack of access to her uniform and to the fact the receptionist was also not in uniform. She referred to feeling attacked by Mr Fiscal in front of clients and that she found this unprofessional and humiliating.[165]I find that Mr Fiscal did take the claimant to task for not being in uniform and that this was in front of clients; and I also find that the receptionist was not reprimanded for not wearing uniform. This is supported by the claimant’s contemporaneous email. I further find that Mr Fiscal was not the receptionist’s line manager. She was not in the Event Planning team. The claimant says, and I accept, that the receptionist was white. The respondent has not sought to contradict this. I find that Mr Fiscal was somewhat annoyed with the claimant about her time-keeping and about the dental appointment and the fact that she had involved Mr van Schalkwijk in relation to this. Emails of 14 and 15 June 2023 [Issues 5(g)(iii) & 8(e)][166]In her email of 14 June 2023 (to Mr Fiscal, copied to Mr van Schalkwijk and Ms Roson), the claimant stated that she had been discriminated against and harassed and wished to make a formal complaint. She asked Mr Fiscal to deal with things only in writing until a formal meeting could be arranged, involving HR. This was the first occasion that the claimant had mentioned discrimination or harassment to Mr Fiscal and Ms Roson (although she had referred to discrimination in communications with Mr van Schalkwijk and Ms Hughes in April 2023). The claimant asked Mr van Schalkwijk for his guidance on next steps.[167]Mr van Schalkwijk did not reply to the claimant.[168]She emailed Mr Fiscal (copying in the same recipients) a few hours later, stating that she had managed to get access to the facilities room but there was no suitable sized uniform for her so she was wearing the long-sleeved one which was uncomfortable in the heat. She asked for solutions for the next three days, given the hot weather.[169]The claimant alleges that her complaint was ignored.[170]Mr Fiscal replied on the evening of 14 June 2023 stating that he wanted to address the concerns raised by the claimant. He stated that he wished to assure her that discrimination and harassment have no place in the organisation and he apologised for any distress caused. He encouraged her to share any specific incidents in her formal complaint and he would ensure that it was appropriately addressed. He explained that he understood and would respect her request for space and to communicate with her in writing until a formal meeting could be arranged with HR involvement.[171]In his reply, Mr Fiscal did not take issue with the claimant’s characterisation of the incident that morning (where she had stated that he had verbally attacked her in front of clients for not wearing the correct uniform, when she was unable to access the facilities room due to a malfunction). I, therefore, find that Mr Fiscal broadly accepted that this had happened as described and he was apologising for the claimant’s distress.[172]Mr Fiscal ended the email by stating, in a different sized font: “Odja, please be assured that I want to resolve the uniform issue and address your concerns in a fair and equitable manner. The wardrobe capsule initiative was implemented to accommodate everyone's needs, and I expect to see you in some form of uniform by tomorrow. If you require any other sizes or have any additional requests, please let me know, and I will be happy to assist you. I value your contributions to the team and want to ensure that you feel respected and supported. Let's work together to find a resolution that addresses your concerns. In the meantime, if you have any questions or further suggestions, please don't hesitate to reach out to me.”[173]The claimant alleges that using inconsistent text formatting (by way of a different sized font) meant that the email was disjointed and difficult to read and that this constituted disability-related harassment, relating to her dyslexia.[174]The claimant responded on the morning of 15 June 2023. She said: “It doesn't help to know that most of what you say doesn't come from you. This has a big part to play with how you miss direct your team and make is informed decisions that impact the workflow and service provided to the client through the team. You could have at least changed the text font. This is disingenuous and disheartening”[175]The claimant did not mention her dyslexia or say that the email had been more difficult to read or was disjointed.[176]The email chain, as collated in the bundle, looks to be in the same font and formatting. However, it is agreed that these two paragraphs did look different in the original email and I have been shown a screenshot of the email as seen by the claimant.[177]I find that the font of the two paragraphs replicated above was slightly bigger. I do not find that the formatting of the email was otherwise inconsistent or that the email was disjointed or more difficult to read. I find that the respondent’s management, including Mr Fiscal, did not know that using two different sized fonts would cause any particular difficulties for the claimant by reason of her dyslexia. I further find that this was not the claimant’s concern at the time; but, rather, is something she came to think about later. The screenshot of this email is dated 29 June 2023 at 03:44, in the early hours of the morning, the day after the claimant’s resignation. I infer that the claimant (who still had her work laptop at this time) was seeking to access various materials that were relevant to her employment and its termination and which she might have wanted to rely upon for the formal grievance that she intended to submit to the respondent (a draft of which, dated 13 July 2023, is in the bundle). In her draft email/grievance of 13 July 2023, the claimant did not refer to Mr Fiscal’s evening email of 14 June 2023 nor to inconsistency with the font and/or formatting or to her dyslexia.[178]In her email of 15 June 2023, the claimant went on to state that she had no confidence in Mr Fiscal or management to deal with any complaint and indicated that she would, therefore, like to make a formal complaint to the respondent’s HR team and she asked to be directed to the right person.[179]Mr Fiscal replied, firstly to clarify that he personally wrote his own emails and that the different text font was unintentional and not meant to be misleading. He encouraged her to reach out to Mr van Schalkwijk in connection with her request to make a formal complaint.[180]The claimant did not contact Mr van Schalkwijk on 15 or 16 June 2023 to make a formal complaint (and nor did Mr van Schalkwijk reach out to her); Friday 16 June 2023 was her last day at work before a period of leave, for her wedding. She was off work from 19 to 26 June 2023, she was unwell on 27 June and so returned to work on 28 June 2023, when she resigned. The claimant’s resignation & third alleged protected act – 28 June 2023 [Issues 5(b) & (e), 8(a), (b) & (c), 16(b), 17(b) & (c) and 18][181]On 14 June 2023, the claimant sent a WhatsApp message to a colleague saying that she had intended to hand in her notice that morning but “the girls convinced me to give more time…Then I came in and Ludovic tried to start a big fight with me.” She told her colleague that she would hand in her notice on Friday (that is, 16 June 2023). She did not do so.[182]The claimant emailed the respondent on 28 June 2023, at 13:25 attaching a letter of resignation. In her covering email, she stated that she felt that her time had come to an end. In her letter, she stated that she felt compelled to resign because of the working environment which had been “marred by persistent and blatant instances of discrimination, mistreatment and harassment”; and she explained that despite bringing her concerns to the attention of management, she did not witness any meaningful actions to improve things for her. She also stated that she had “faced further passive aggression and harassment when raising my concerns”; which I find is an allegation of victimisation.[183]The claimant made it clear that she was prepared to work out her notice period, terminating on 27 July 2023, stating: “Despite an unnecessarily difficult relationship with management, I have a great team of colleagues that I would like to support and respect while stepping back from the company. I am willing to cooperate during the transition period to ensure a smooth handover of my responsibilities, should you require my assistance…. […..] I would like to take this opportunity to express my gratitude for the opportunities I have had during my tenure with WSH and Portico. I have had the privilege of working with some talented and dedicated colleagues who helped me cope with the work conditions and kept things light and positive when possible.”[184]I find that the claimant’s letter of resignation was measured in its tone and content, whilst clearly conveying her dissatisfaction with her working environment. The respondent properly concedes that, by this letter, the claimant did a protected act. Discussion with Mr Fiscal[185]Mr Fiscal returned from his lunch break just after the claimant had emailed her resignation letter; and they had a brief discussion. The claimant’s evidence is that it was a neutral and non-confrontational chat. He acknowledged that the working relationship had become strained and he told the claimant to let him know if she needed a reference. He said that he would check the position with regard to any outstanding holiday pay. I accept the claimant’s evidence in this regard, which is not inconsistent with her WhatsApp messages that day to Ms Wray and Ms McCalla.[186]In their discussion, Mr Fiscal did not mention the claimant taking garden leave nor the need for any meeting to discuss her resignation; and neither he, nor anyone else within management, suggested to the claimant that she might want to take some to time to think about her resignation nor did they try to change her mind. Ms Roson’s reaction to the claimant’s resignation[187]Ms Roson stated in her evidence that she did not think there was any benefit to the business in trying to persuade the claimant to re-think her resignation. She said this this was because, in her view, the claimant was unhappy, she had been unprofessional around the issue of moving back to Embankment Place; she had been quite challenging in respect of uniform issues, she had been late to work from time to time and Ms Roson was still worried about the poor judgment shown by the claimant when she copied PwC employees into her email on 23 February 2023 about the proposed changes in work location. I find that these reasons were consciously in Ms Roson’s mind at the time but were only part of Ms Roson’s thought processes. I find that, by this time, Ms Roson also thought the claimant was becoming more difficult to manage and that she found her increasingly challenging, in particular because the claimant was beginning to raise concerns about discrimination (not just in her resignation letter but in her email of 14 June 2023) and had made it clear that she wanted to escalate a formal complaint about discrimination.[188]Ms Roson forwarded the claimant’s resignation email and letter to her manager, Oliver Hiner, the respondent’s Director of Operations. In her email, she said: “Awaiting advice from Mark but I’d put her on garden leave.” Mr Hiner told Ms Roson to take advice from Mr van Schalkwijk and she duly spoke to him on the phone. He agreed with her decision to place the claimant on garden leave.[189]In his witness statement, Mr van Schalkwijk states that the respondent would not normally place relatively junior employees on garden leave but he could understand why Ms Roson thought it was a good idea and he supported her decision. He does not expand on his understanding of why Ms Roson thought it was a good idea to place the claimant on garden leave.[190]In her witness statement, Ms Roson states that the claimant’s email from February 2023 (copied to a wide distribution list, referring to the proposal for the claimant to change work location) still gave her cause for concern – namely, that the claimant “could not be completely relied on, and she had information about VIP events involving high profile clients. I was worried about confidentiality and professionalism.” Ms Roson further says that she was aware that the claimant had just got married and garden leave would give her a month of paid time off and so she did not see it as a bad option or any form of punishment. I do not accept this evidence. Ms Roson did not mention these points in her email the next morning (29 June 2023) at 05:11.[191]Ms Roson did not offer garden leave to the claimant as one possible option, but rather imposed it on the claimant.[192]When Ms Roson was cross-examined about her garden leave decision, it was pointed out (by the claimant) that there had been no further incident after the ‘letter of concern’ of 6 April 2023 which could provide any basis for any continuing concerns about confidentiality or professionalism. In response, Ms Roson mentioned that two PwC staff members (who were building managers at PwC’s More London site) had raised concerns about the claimant’s attitude and approach in “look ahead” meetings. She said that these two individuals had raised their concerns with her informally two or three days before the claimant’s resignation. Ms Roson accepted in her evidence that she had not revealed this conversation to the claimant and had not included this information in her witness statement. Ms Roson did not refer to any concerns having been raised about the claimant by these managers in any of the disclosed emails, including her email to Mr van Schalkwijk and Ms Woods on 29 June 2023 at 5:11am. In that email she states that the claimant “has had several behavioural issues throughout her employment with us” and says that this is the reason for deciding to place her on garden leave. I find that a significant aspect of these “behavioural issues” was that the claimant had raised complaints about discrimination, harassment and retaliation (that is, victimisation) and Ms Roson found this behaviour problematic and challenging.[193]The claimant was not at work and so she would not have been attending any meetings (including any “look ahead” meetings) in the period from 16 June 2023 onwards so it is wholly unclear what might have prompted the two PwC building managers to speak to Ms Roson in the two or three days prior to 28 June 2023. I also find that, in accordance with the claimant’s WhatsApp voice notes to her former colleagues on 3 July 2023, she attended More London on that date to return her laptop. She bumped into the PwC building managers, including those who Ms Roson says had raised concerns about the claimant. Those managers were (as the claimant describes) “really nice and positive” about her.[194]On the balance of probabilities, I find that concerns were not raised with Ms Roson in this way by the PwC building managers and, even if some critical feedback was given about the claimant, this did not feed into Ms Roson’s decision to place the claimant on garden leave. I consider that if the concerns were raised in this fashion and formed part of the rationale for requiring the claimant to go on garden leave, Ms Roson would have mentioned this in emails at the time and certainly would have referenced this in her witness statement.[195]During her cross-examination, Ms Roson also stated that whilst she had not put Mr Burrows, Ms Stainer, Ms McCalla or Mr Fiscal on garden leave, she had put two members of her team on garden leave, a senior team member (in Newcastle) and a junior member of the team (in Reading). She explained that both employees are white. I do not have any other evidence about the circumstances of these two employees and, of course, the claimant could not gainsay this evidence. However, I accept this evidence as far as it goes as it is implausible that Ms Roson would just make this up as it would be easy to check these facts. Whilst I have not accepted some of Ms Roson’s evidence, this is not because I consider that she has sought to deliberately mislead the tribunal.[196]Going back to the events of 28 June 2023, I find that, having sent her resignation by email, the claimant continued with her working day as usual. Late afternoon on 28 June 2023[197]In the late afternoon, at around 5pm, the claimant was at her desk, sitting with Mr Fiscal, when Ms Roson turned up. She had come from Embankment Place to speak with the claimant. She took Mr Fiscal to one side and the claimant went upstairs. She came back downstairs, she was working and had on her headphones and was speaking to Ms McCalla about an event. The claimant observed Ms Roson apparently waiting for her and so the claimant decided to go upstairs again to where Ms McCalla was as she did not want to have a conversation with Ms Roson or Mr Fiscal in the absence of HR (that is, Mr van Schalkwijk). As the claimant was walking away to go upstairs, she heard Ms Roson chuckle.[198]At 17:23, Ms Roson sent the claimant a Google chat message saying that she needed to have a “quick chat” with her and asking if she was coming back to the first floor.[199]Once upstairs, a colleague told the claimant that Ms Roson was looking for her. She went back downstairs and was met by Ms Roson who said she had booked a room. The claimant asked if Mr van Schalkwijk would be there and Ms Roson said he would not. The claimant explained that she would only have a meeting with Ms Roson in the presence of HR. This was consistent with her emails on 14 and 15 June 2023, in which she and Mr Fiscal had agreed that they would keep communications in writing until a meeting had been arranged with HR.[200]In her email the following morning, Ms Roson said that the claimant had told her that she was “only going to speak to HR” and would not speak to Ms Roson. However, in her witness statement, she states that the claimant did say that she would not have a private meeting without HR present (which is consistent with the claimant’s account)[201]I prefer the claimant’s account which is consistent with her WhatsApp voice notes sent to Ms Wray and Ms McCalla later on 28 June 2023 and with the agreement that she had reached with Mr Fiscal about written communications.[202]Even though the claimant told Ms Roson that she would only have a meeting in the presence of HR, Ms Roson kept insisting that they should go to the meeting room. When it was clear that the claimant would not acquiesce, Ms Roson said something to the effect that since the claimant couldn’t be mature about it, she would say what she had to say there.[203]The claimant started to walk away and Ms Roson followed. She told the claimant that she should pack up her things and leave as they were putting her on garden leave. The claimant says she did not know what that was and thought she was being fired. I accept the claimant’s evidence as, again, it is consistent with the WhatsApp voice notes, sent not long afterwards. The claimant replied by saying that she had no idea what Ms Roson was saying, that she did not want to have this discussion without HR being present and she asked to be left alone. It was at this point that Ms Roson started to raise her voice, but not earlier. Again, that is consistent with the claimant’s near-contemporaneous account. The claimant’s recollection in her witness statement that Ms Roson shouted at her earlier, telling her that she was childish is not accurate as the raised voice came a bit later.[204]In her email the following morning, Ms Roson stated that the claimant was shouting at her, saying that she (that is, Ms Roson) “had no right”, was immature, was a bad manager and did not know what she was doing. I accept this part of her account, although not that the claimant was shouting. I find that Ms Roson had questioned the claimant’s maturity and that the claimant, in turn, called Ms Roson immature and unprofessional. I find that, by this time, both of them were using raised voices. I do not think it likely that either was actually shouting. It is my experience that people can often say “shout” when they are referring to raised voices.[205]As the interaction increased in intensity, with both individuals becoming more agitated and vocal, the claimant continued to walk away and Ms Roson followed after her.[206]The claimant’s evidence (which is consistent with her WhatsApp messages later that day) is that she walked back to her desk where Mr Fiscal was sitting and Ms Roson said to her that she would get security to escort her out – that is, without any warning. The claimant says that she was then speaking to Mr Fiscal asking what was going on and he tried to explain garden leave to her and she then silently packed her bags and headed towards the doors where Ms Roson was by then standing with the security guard.[207]Ms Roson’s evidence (which is consistent with her email the following morning) is that she warned the claimant that, if she was not going to cooperate, security would have to be called to escort her out. She says that, because the claimant continued to speak over her and insult her, she called the security manager on duty and he came to escort the claimant out.[208]On this point, I find that both the claimant and Ms Roson were agitated and upset; and they were both being vocal and using raised voices. In her WhatsApp voice notes, the claimant refers to how they were talking over each other and, in her witness statement, she says that she was very upset and triggered by Ms Roson’s behaviour. I find that it was an emotive and confusing interaction and that it is more likely than not that Ms Roson did say to the claimant that, if she did not cooperate, she would get security to escort her out. However, I find that the claimant was not being aggressive, abusive or threatening.[209]The claimant says that when she walked towards the lift area, Ms Roson was standing there with the duty security manager who had arrived by this time. In her tribunal claim and in her witness statement, the claimant states that, at around this point in time, Ms Roson started “rolling her neck and waving her hands in an exaggerated and theatrical manner. These gestures appeared to mimic racial stereotypes of a ghetto Black woman and were deeply humiliating, especially in a public, professional setting.”[210]When this was put to Ms Roson, she denied racially mimicking the claimant; and said that it is normal for her to gesticulate a lot when she speaks, saying that this is something that Italians can do a lot.[211]Again, I am faced with a stark difference in the accounts of the claimant and Ms Roson. I find that Ms Roson did gesticulate with her arms and hands because that is a normal aspect of the way that she communicates – she is expressive (and, indeed, I observed this during the course of her oral evidence). I find that she did not roll her neck or wave her hands to mimic the claimant or to mimic Ms Roson’s perception of a black woman. I consider that, if that is what she was doing and/or if that was the way that the claimant had perceived Ms Roson’s gestures at the time, it is very likely she would have put this detail in her lengthy WhatsApp voice notes and/or in her draft grievance (which she emailed to herself on 13 July 2023); but she did not.[212]The claimant went downstairs with the security manager (Tariq Vasquez). He allowed the claimant to call Ms McCalla who came down to the security desk. The claimant explained to them that she had resigned, with four weeks’ notice, showing them her resignation letter. She wanted to retain her laptop during her notice period, so that she would have access to materials for her complaint to HR. The claimant told them that she did not understand why she was being required to leave when she had given notice to the respondent of her resignation. Mr Vasquez was sufficiently uncertain about the situation that he went back to check with Ms Roson. He returned and told the claimant that Ms Roson had said to him that she had “had enough” of the claimant; that the respondent had sent her an email to inform her about her garden leave; and that Mr Vasquez should retain her laptop and pass. In fact that email had not yet been sent (it was emailed the next morning by Mr Fiscal). The claimant showed Mr Vasquez her emails so that he could see for himself that no email about garden leave had been sent to her. The claimant was permitted to retain her laptop, which she did, handing it back to the respondent on 3 July 2023. Post-resignation events[213]After the claimant had left More London on 28 June 2023, Ms McCalla overheard Ms Roson telling Mr Fiscal that she had been “scared” of the claimant. Mr Fiscal responded saying, “oh come on, you’re not scared”. Ms McCalla’s evidence in her statement was that the security manager informed her that Ms Roson had told him that she feared for her life but declined his offer that he could accompany her to the train station or get her a cab.[214]Ms McCalla states that casting black woman as threatening or dangerous is a harmful racial stereotype. I note that, when she observed that Ms Roson appeared to be upset, Ms McCalla gave her a hug.[215]On 29 June 2023, Ms Roson emailed Mr van Schalkwijk and Ms Woods (because she was also responsible for the PwC account). In her email, she referred to feeling threatened by the claimant and her body language, stating that the claimant was shouting, being insulting and verbally abusive.[216]In this way, I find that Ms Roson did portray the claimant as the “aggressor”.[217]I note that Mr Vasquez (on 1 August 2023) sent the claimant a voice note (in response to her request for CCTV footage). He explained that CCTV footage is deleted every 30 days but he also described his perception of the incident with Ms Roson as “ultimately unfair and unjustice as well”. He, of course, only witnessed the tail end of the events on 28 June 2023 but I find that he formed the impression, from what he saw, that the claimant had been badly treated.[218]Mr Fiscal emailed the claimant on 29 June 2023, the morning after her resignation, to acknowledge her resignation letter. He attached a letter which was dated 28 June 2023 even though it was emailed on 29 June 2023. In that letter, he referred to the claimant being “asked” to take garden leave. He referenced the claimant having accrued 12 days holiday, out of which entitlement she had taken 10 days, leaving her with an entitlement to two days paid holiday. 3 July 2023[219]The claimant attended the More London site on 3 July 2023 to return her work laptop. She spoke to various people and reported back to Ms Wray and Ms McCalla on WhatsApp. She said that everyone had been very nice, which made her feel a little bit better, but they were under the impression that she had “argued” with Ms Roson and “therefore got fired”. The claimant told Ms Wray and Ms McCalla that she had spoken to the PwC building managers (including those who, during her cross-examination, Ms Roson said had raised concerns about the claimant’s behaviour in meetings). According to the claimant, when she told them what had happened (and I find that her account would broadly have been the same, albeit in less detail, as her account in her WhatsApp messages, her draft grievance of 13 July 2023 and her witness statement), they said “this is uncalled for and ridiculous”.[220]I find that Ms Roson did let PwC know that the claimant’s employment had terminated because, as the client, it would need to know this information, particularly as it involved a change of personnel who would be coming and going from its premises. I also find that Ms Roson gave the impression that the claimant’s employment had been terminated in circumstances where the claimant had been argumentative and aggressive. Racial stereotyping – “aggressor”[221]The claimant asserted in her evidence that Ms Roson’s apparent perception and/or depiction to others of the claimant as the “aggressor” was an exercise in racial stereotyping – namely, that black women are argumentative and threatening – and that this was a deliberate distortion of reality by Ms Roson in order to be able cast herself as the victim.[222]Contrary to the allegation regarding Mr Fiscal and his reference to the claimant as “strong”, I am prepared to accept and I take judicial notice of the fact that there is a commonly deployed stereotype, in relation to both black men and women, that conduct which, in others, would be described as, for example, assertive and/or emotional, is assumed to be angry, aggressive, abusive and/or threatening. I also feel able to take judicial notice of the fact that women in general are often stereotyped as being overly emotional or hysterical when, for example, they challenge something. Finally, I accept that the intersection of womanhood and colour may well lead to the stereotyping of a black woman as “angry” or “abusive” or “aggressive” when, in fact, she is simply assertive and standing up for herself.[223]That said, having read the claimant’s witness statement at the outset of the Hearing, I was very careful, before any of the witnesses gave oral evidence, to explain to the claimant that, if she wished to pursue an allegation of racial stereotyping, she needed to put clear questions about that to the relevant witness or witnesses in cross-examination.[224]The claimant did ask Ms Roson numerous questions about the events on 28 June 2023 and about what Ms Roson had conveyed to others about the termination of the claimant’s employment. She put to Ms Roson that she had not, in fact, been aggressive on 28 June (which Ms Roson denied); and she put to her that, when she had raised concerns about things at work during the course of her employment, the claimant was viewed as a threat whilst Mr Burrows was not (which proposition Ms Roson rejected). However, the claimant did not suggest to Ms Roson, during her questioning of her, that Ms Roson viewed her as a threat and/or as the “aggressor” because she was deploying a racial stereotype about black women as “angry” and/or “threatening” and/or “aggressive”.[225]The events on the afternoon of 28 June 2023 were highly charged. Ms Roson and the claimant accused each other of being hostile and of shouting. The claimant acknowledges that they were talking over each other. They were both, as I have found, agitated and upset.[226]It is possible that Ms Roson viewed (and described) the claimant as aggressive because that is how she genuinely perceived her, without consciously or unconsciously acting on a racial stereotype. It is, of course, also possible that Ms Roson viewed the claimant in this way because she was guided, whether consciously or not, by a racial stereotype about black women who, when upset and/or assertive, are viewed as aggressive and threatening.[227]However, in order to advance this aspect of her case, the claimant needed to put this to Ms Roson. I had explained to her the importance of doing so, but she did not put this specific issue to Ms Roson. In those circumstances, whilst I find that the claimant was not actually being aggressive (but was agitated and vocal, as was Ms Roson), I have concluded that it would be wrong to assume against Ms Roson that she was acting on a racial stereotype when she described the claimant as the ‘aggressor’ in her email of 29 June 2023 and gave that impression to others when explaining the claimant’s departure from the respondent. I, therefore, decline to find that, in portraying the claimant as the “aggressor”, Ms Roson was guilty of racially stereotyping her. Holiday pay [Issue 17(d)][228]On 17 August 2023, the claimant emailed the respondent’s payroll support team about possible underpayment of holiday. She said that she believed she was owed a day’s leave for her wedding day which her manager had “refused to grant”.[229]On 31 August 2023, the WSH “Service Desk” emailed the claimant to say that the records indicated that she had accrued 11.83 days and had taken 11 days’ leave, leaving an outstanding balance of 0.83 days which is what she was paid in her final payment.[230]On 6 September 2023, the “Service Desk” sent a further email copied to the claimant confirming that she would be receiving a further day’s holiday pay in September payroll. This email also confirmed that she would not qualify for wedding leave entitlement (for 27 June 2023) as this entitlement only started in August 2023 so it would have to remain as a day’s holiday against her paid leave entitlement. The wording of this email is rather confusing because it refers both to “you” and to “Odja” (the claimant’s first name). Reading it as best I could – without anyone from the Service Desk to explain it – I find that it was staff from the Service Desk who thought there was no entitlement to wedding day leave (until August 2023, which was after the claimant’s employment had ended).[231]I find, therefore, that the claimant was paid 1.83 days’ outstanding holiday entitlement but was not paid an extra day in respect of ‘wedding day leave’.[232]I also find that the WSH “Service Desk” incorrectly informed the claimant that the entitlement to wedding day leave only started in August 2023. In fact, as regards the respondent’s employees (if not the wider WSH group), the ‘Portico Benefits’ leaflet in the Bundle – which the claimant was provided with in March 2022 at the outset of her employment – shows that there was an entitlement to an additional day’s holiday at the relevant time (that is, June 2023). I find that this was an error on the part of the WSH “Service Desk”. In their email of 7 September 2023, it is apparent that someone else had requested that 27 June 2023 be converted into paid wedding entitlement but the “Service Desk” (albeit mistakenly) thought that she did not qualify and so she was not granted this additional day. I find that the employees working on the WSH “Service Desk” communications, whilst aware of the claimant’s name and payroll and holiday details, were not otherwise aware of any of the wider circumstances and, specifically, did not know that the claimant had done a protected act on 28 June THE LAW Direct discrimination
THE LAW
[233]Section 13 of the Equality Act 2010 (“EA 2010”) provides that: “(1) A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others”[234]In respect of each complaint under sections 13(1) and 39(2)(c) and/or (d) of the EA 2010, the tribunal must determine whether the respondent, in respect of the alleged detriments asserted in her claim, discriminated against the claimant by treating her less favourably than it treated or would have treated others “because of” race.[235]In determining whether race was a reason for the acts of direct discrimination relied on by the claimant, the tribunal must consider “what, consciously or unconsciously, was the reason” for the treatment (Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065, per Lord Nicholls, at paragraph 29). If the claimant’s race was a material (i.e. non-trivial) influence or factor in the reason for the treatment, it will be unlawful discrimination (Nagarajan v London Regional Transport [1999] ICR 877) – the claimant’s race need not be the main or the sole reason for the treatment but it must be a real or an effective cause of it.[236]The Tribunal must look into the mental processes of the putative discriminator. The enquiry is necessarily subjective and requires the ET to make findings as to the (conscious or unconscious) motivations (but not necessarily motives) of the relevant decision-maker. It cannot be concluded that an act (or deliberate failure to act) constitutes discrimination (or victimisation) on the basis of someone else’s reasons (CLFIS (UK) Ltd v Reynolds [2015] IRLR 571 (CA)). As summarised by Kerr J in Commissioner of the Police of the Metropolis v Denby (UKEAT/0314/16) at [52]: “The ratio of CLFIS is simple: where the case is not one of inherently discriminatory treatment or of joint decision making by more than one person acting with discriminatory motivation, only a participant in the decision acting with discriminatory motivation is liable; an innocent agent acting without discriminatory motivation is not. Thus, where the innocent agent acts on 'tainted information' (per Underhill LJ at paragraph 34), i.e. 'information supplied, or views expressed, by another employee whose motivation is, or is said to have been, discriminatory', the discrimination is the supplying of the tainted information, not the acting upon it by its innocent recipient.” (emphases added)[237]In considering whether the treatment of the claimant was because of race, the tribunal needs to be satisfied that it was less favourable (because of race) in comparison to an employee in materially similar circumstances who did not have the same protected characteristic as the claimant (per section 23(1) EA 2010).[238]If there is no actual comparator, the comparison required by section 13 EA 2010 is hypothetical – namely, would a person whose circumstances were not materially different (including their performance at work and their conduct, but who was not the same race as the claimant) have been treated in the same way or more favourably than the claimant and, if so, was the impugned treatment of the claimant because of race?[239]The claimant points to the treatment of other event planners (Katrina Wray, Adam Burrows and Olivia Strainer) employed at the same time as the claimant and who (she says) were treated more favourably than her. The question will be whether they are proper comparators or whether their circumstances were not materially similar. Even if the latter is the case, they may be used as evidential comparators whose treatment can help the tribunal to evaluate and elucidate whether the claimant was treated less favourably because of race: Leicester City Council v Parmar [2024] ICR 1115 (EAT), recently upheld by the Court of Appeal, [2025] EWCA Civ 952, at paragraphs 57 to 60. Detriment (discrimination & victimisation)[240]Pursuant to sections 39(2) & (4) EA 2010, an employer must not discriminate against or victimise an employee:a. as to their terms of employmentb. the way the employer affords the employee access, or by not affording them access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service;c. by dismissing the employee;d. by subjecting them to any other detriment.[241]As to what is meant by “detriment” in section 39(4)(d), this must be examined from the perspective of the employee but, per Ministry of Defence v Jeremiah [1980] ICR 13, at paragraph 31, a detriment will only exist if a reasonable worker would also take the view that the treatment was to his detriment; but something may be a detriment even if there are no physical or economic consequences for the claimant.[242]Accordingly, and pursuant to Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 (at paragraphs 34-35 and 104-105), an “unjustified sense of grievance cannot amount to ‘detriment’”. The Shamoon principle was expressly applied to victimisation in Warburton v Chief Constable of Northamptonshire Police [2022] EAT 42, in which the EAT also held, at paragraph 51, that: ‘Although the test is framed by reference to “a reasonable worker”, it is not a wholly objective test. It is enough that such a worker would or might take such a view. This is an important distinction because it means that the answer to the question cannot be found only in the view taken by the employment tribunal itself. The tribunal might be of one view, and be perfectly reasonable in that view, but if a reasonable worker (although not all reasonable workers) might take the view that, in all the circumstances, it was to his detriment, the test is satisfied.’ Victimisation[243]Pursuant to section 27 EA 2010, a respondent victimises a claimant if it subjects them to a detriment because they do a protected act. A complaint of victimisation will also succeed where a respondent has subjected a claimant to a detriment because it believes that they have done, or may do, a protected act. As is apparent from the List of Issues, the claimant does not rely on the latter type of complaint so I have considered only the question of whether she was subjected to any of the alleged detriments because she had done a protected act.[244]Each of the following is defined as a protected act:a. bringing proceedings under EA 2020;b. giving evidence or information in connection with proceedings under EA 2010;c. doing any other thing for the purposes of or in connection with EA 2010;d. making an allegation (whether or not express) that the respondent or another person has contravened EA 2010.[245]The context of the allegation must indicate a relevant complaint under the EA 2010. Accordingly:a. In Beneviste v Kingston University UKEAT/0393/05 Dr Beneviste claimed that she had been victimised because she had raised earlier grievances. However, the EAT upheld a tribunal's decision that the grievances did not amount to protected acts, because they did not complain of treatment on the grounds of sex or race. The EAT observed that: ‘There is no need to for the allegation to refer to the legislation, or to allege a contravention, but the gravamen of the allegation must be such that, if the allegation were proved, the alleged act would be a contravention of the legislation. If a woman says to her employer, "I am aggrieved with you for holding back my research and career development" her statement is not protected. If a woman says to her employer, "I am aggrieved with you for holding back my research and career development because I am a woman" or "because you are favouring the men in the department over the women", her statement would be protected even if there was no reference to the 1975 Act [Sex Discrimination Act 1975] or to a contravention of it.’ The EAT held that merely making a criticism, grievance or complaint without suggesting that it was in some sense an allegation of discrimination or otherwise a contravention of discrimination legislation was not sufficient to amount to a protected act.b. In Durrani v London Borough of Ealing UKEAT/0454/12, the EAT upheld a tribunal's decision that Mr Durrani had not done a protected act. Although he had referred to being "discriminated against" and suffering detriment during his employment, the tribunal found that he had not used the word "discriminated" in any sense other than that he had been unfairly treated generally, not specifically because of race. However, the EAT stressed that each case should be determined on its particular circumstances and its decision should not be taken as a general endorsement that an employee who complains of "discrimination" has not done enough to bring themselves within the scope of section 27 EA 2010.c. In Fullah v Medical Research Council and another UKEAT/0586/12, Mr Fullah was the only black person working in a scientific research unit. He brought an internal complaint of harassment against his manager, alleging that he had been "physically, verbally and psychologically bullied and harassed, discriminated and victimised both directly and indirectly". His grievance was rejected and on appeal he stated that he believed that his manager had subjected him to bullying, harassment, discrimination and victimisation over the course of four years. However, he did not mention race and alleged the manager had treated other employees badly as well. The EAT upheld a tribunal's decision that Mr Fullah had not done a protected act. The tribunal took into account the fact that a year later Mr Fullah made explicit claims of race discrimination, and that he was articulate and well-educated and clearly knew the appropriate language to use for such a claim. The EAT accepted that the word race did not have to appear, but the context had to indicate a relevant complaint, and in Mr Fullah's case, that context was lacking.[246]Giving false evidence or information, or making a false allegation, is not a protected act if the allegation is made in bad faith (section 27(3) EqA). The tribunal must, therefore, be satisfied both that the allegation is false (i.e. not true) and that, in making the allegation, the claimant was acting in bad faith. Here, it is not a part of the respondent’s case that the claimant made a false allegation in bad faith and I see no reason to go behind that. Indeed, I consider it would be potentially unfair to explore that issue, since it was not explored as an issue during the proceedings.[247]The employer must subject the employee to the alleged detriment “because” of the protected act. In other words, the protected act must be a real or effective cause of the detriment (see Chief Constable of West Yorkshire Police v Khan [2001] IRLR 830 (HL)).[248]Where there is more than one reason for the treatment, the discriminatory reason must simply be of “sufficient weight” (O'Donoghue v Redcar and Cleveland Borough Council [2001] EWCA Civ 701 at [26]) or should have had “a significant influence on the outcome” (Nagarajan (above)).[249]Accordingly, as with direct discrimination, it is vital for the tribunal to consider the conscious or unconscious state of mind of the individual who is alleged to be responsible for the detriment (or dismissal): CLFIS (UK) Ltd v Reynolds (which I have referred to above). The protected act relied on by the claimant must be an effective cause of that individual’s treatment of the claimant. Separability – victimisation[250]An employer may have treated an employee in a particular manner in response to a protected act but can say that the reason for the treatment was not the act but some feature of it which could “properly be treated as separable” – see Martin v Devonshires Solicitors [2011] ICR 352, in which Underhill P held: “The question in any claim of victimisation is what was the “reason” that the respondent did the act complained of: if it was, wholly or in substantial part, that the claimant had done a protected act, he is liable for victimisation; and if not, not. In our view there will in principle be cases where an employer has dismissed an employee (or subjected him to some other detriment) in response to the doing of a protected act (say, a complaint of discrimination) but where he can, as a matter of common sense and common justice, say that the reason for the dismissal was not the complaint as such but some feature of it which can properly be treated as separable. The most straightforward example is where the reason relied on is the manner of the complaint. Take the case of an employee who makes, in good faith, a complaint of discrimination but couches it in terms of violent racial abuse of the manager alleged to be responsible; or who accompanies a genuine complaint with threats of violence; or who insists on making it by ringing the managing director at home at 3a.m. In such cases it is neither artificial nor contrary to the policy of the anti-victimisation provisions for the employer to say ‘I am taking action against you not because you have complained of discrimination but because of the way in which you did it’. Indeed it would be extraordinary if those provisions gave employees absolute immunity in respect of anything said or done in the context of a protected complaint.” [22] (emphases added)[251]Albeit a case on whistleblowing detriment, I have found the Court of Appeal Judgment in Kong v Gulf International Bank (UK) Ltd helpful. It holds that the “separability principle” (applied in claims for automatic unfair dismissal by reason of protected disclosures) does not incorporate some objective standard against which conduct had to be assessed to determine whether the separability principle applies in a particular case. Each case, accordingly, turns on its own facts; and the separability principle is not a basis for somehow deeming a respondent’s reason for dismissal (or, indeed, some other detriment) to be anything other than the findings of fact disclose it to be. I consider this elucidation of the “separability principle” to be just as applicable to victimisation claims under the EA 2010. Harassment[252]Pursuant to section 40 EA 2010, an employer must not harass an employee. Section 26 EA 2010 provides: “(1) A person(a) (A) harasses another(b) (B) if – (a) A engages in unwanted conduct related to a relevant 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 [for short we will refer to this as a “proscribed environment”]. … (4) In deciding whether conduct has the purpose or 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.” [emphasis added][253]Section 212 EA 2010 provides, materially: (1) In this Act — … “detriment” does not, subject to subsection (5), include conduct which amounts to harassment. … (5) Where this Act disapplies a prohibition on harassment in relation to a specified protected characteristic, the disapplication does not prevent conduct relating to that characteristic from amounting to a detriment for the purposes of discrimination within section 13 because of that characteristic.[254]The meaning of ‘related to’ in s.26 EA 2010 is distinct from and broader than the ‘because of’ formulation under s.13 EA 2010. It is not, however, to be reduced to a ‘but for…’ test and it is not enough to point to the relevant characteristic as the mere background to the events. As Underhill LJ said in UNITE the Union v Nailard [2019] ICR 28: ‘… The necessary relationship between the conduct complained of and the claimant’s gender was not created simply by the fact that the complaints with which they failed to deal were complaints about sexual harassment — or, in the case of Mr Kavanagh, that part of the situation that led him to decide to transfer the claimant was caused by such harassment.’[255]In considering whether conduct, such as a comment or gesture that is said to amount to harassment, is related to the protected characteristic, the tribunal has to ask itself whether, objectively, the comment or gesture relates to the protected characteristic. The knowledge or perception of the alleged victim’s protected characteristic, on the part of the person said to have made the remark or gesture, is relevant to the question of whether the conduct relates to the protected characteristic but is not in any way conclusive. The tribunal should look at the evidence in the round (per HHJ Richardson in Hartley v Foreign and Commonwealth Office Services UKEAT/0033/15/LA at [23] – [24].)[256]In considering whether the conduct is related to the protected characteristic, the tribunal must focus on the conduct of the individuals concerned and ask whether their conduct is related to the protected characteristic (Nailard, at paragraph 80).[257]In Tees Esk and Wear Valleys NHS Foundation Trust v Aslam [2020] IRLR 495 HHJ Auerbach gave further guidance: ‘[21] Thirdly, although in many cases, the characteristic relied upon will be possessed by the complainant, this is not a necessary ingredient. The conduct must merely be found (properly) to relate to the characteristic itself. The most obvious example would be a case in which explicit language is used, which is intrinsically and overtly related to the characteristic relied upon. Fourthly, 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. [24] However, as the passages in Nailard that we have cited make clear, the broad nature of the ‘related to’ concept means that a finding about what is called the motivation of the individual concerned is not the necessary or only possible route to the conclusion that an individual’s conduct was related to the characteristic in question. Ms Millns confirmed in the course of oral argument that that proposition of law was not in dispute. [25] Nevertheless, there must 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.’ [emphasis added] [See also Wasteney v East London NHS Foundation Trust [2016] ICR 643][258]In Weeks v Newham College of Further Education UKEAT/0630/11/ZT, Langstaff J said this at paragraph 21: ‘An environment is a state of affairs. It may be created by an incident, but the effects are of longer duration. Words spoken must be seen in context; that context includes other words spoken and the general run of affairs within the office or staff-room concerned. We cannot say that the frequency of use of such words is irrelevant.’[259]In Richmond Pharmacology v Dhaliwal [2009] IRLR 336 (at paragraphs 15 and 22), Underhill J (as he was) said: ‘15…A Respondent should not be held liable merely because his conduct has had the effect of producing a proscribed consequence: it should be reasonable that that consequence has occurred. That…creates an objective standard….Whether it was reasonable for a Claimant to have felt her dignity to be 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. One question that may be material is whether it should reasonably have been apparent whether the conduct was, or was not, intended to cause offence (or, more precisely, to produce the proscribed consequences): the same remark may have a very different weight if it was evidently innocently intended than if it was evidently intended to hurt. 22…We accept that 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…’[260]A finding that it is not objectively reasonable to regard the conduct as harassing is fatal to a complaint of harassment. That point may not be crystal clear on the face of section 26 EA 2010 but see the obita dicta of Underhill LJ in Pemberton v Inwood [2018] IRLR 557 at paragraph 88 and the ratio of Ahmed v Cardinal Hume Academies, unreported, UKEAT/0196/18/RN in which Choudhury J (at paragraph 39) held that Pemberton indeed correctly stated the law. Burden of Proof[261]For claims under the EA 2010 (including for direct discrimination, victimisation, harassment and/or failure to make reasonable adjustments), the burden of proof is on the claimant initially under s.136(1) EA 2010 to establish facts from which the tribunal could decide, in the absence of any other explanation, that the respondent has contravened the EA 2010 as is alleged.[262]In the case of direct discrimination, this requires more than that there is a difference in treatment and a difference in protected characteristic (Madarassy v Nomura International plc [2007] ICR 867 at paragraph 56). There must be evidence from which it could be concluded that the protected characteristic was a real or an effective cause of the treatment. The burden then passes to the respondent under s 136(3) to show that the treatment was not discriminatory: Wong v Igen Ltd [2005] ICR 931.[263]This same approach was applied to a claim for victimisation in Greater Manchester Police v Bailey [2017] EWCA Civ 425, in which the Court of Appeal held at [29] that “It is trite law that the burden of proof is not shifted simply by showing that the claimant has suffered a detriment and that he has a protected characteristic or has done a protected act”.[264]I have reminded myself that the fact that someone is treated unreasonably does not mean that it is proper to infer that they have been discriminated against (or, indeed, victimised) (Glasgow City Council v Zafar [1998] ICR 120). However, I also bear in mind that where the evidence shows that the complainant is the only employee who has been subject to unreasonable treatment, the tribunal must “consider carefully and with particular scrutiny” whether discrimination (or, indeed, victimisation) has played a part in the treatment: Kowalewska-Zietek v Lancashire Teaching Hospitals NHS Foundation Trust UKEAT/0269/15/JOJ, per Langstaff J (paragraph 48).[265]Tribunals should not apply the burden of proof provisions formulaically. In appropriate cases, where the tribunal is in a position to make positive findings on the evidence one way or another, the Tribunal may move straight to the question of the reason for the treatment: Hewage v Grampian Health Board [2012] UKSC 37, [2012] ICR 1054, per Lord Hope (at paragraph 32). In all cases, it is important to consider each individual allegation of prohibited conduct separately and not take a blanket approach (Essex County Council v Jarrett UKEAT/0045/15/MC at paragraph 32), but equally the Tribunal must also stand back and consider whether any inference of discrimination (or victimisation etc) should be drawn taking all the evidence in the round: Qureshi v Victoria University of Manchester [2001] ICR 863, per Mummery J (at 874CH and 875CH).[266]In reasonable adjustment cases under s.20(3) EA 2010, at the first stage (under s.136(1) EA 2010), the claimant must prove – on the balance of probabilities, that the respondent had a provision, criterion or practice which put the claimant at a substantial disadvantage and she must then demonstrate that there was an adjustment which a tribunal could conclude was reasonable and which could have eliminated or reduced the disadvantage. It is only at this point that the burden would shift to the respondent to prove that the suggested adjustment was not reasonable and/or would not have eliminated or reduced the disadvantage: Project Management Institute v Latif [2007] IRLR 579. Drawing inferences, unconscious discrimination & stereotyping[267]When considering whether the treatment complained of is because of or related to race (or disability) and/or because of a protected act, the Tribunal may draw an inference that the alleged perpetrator was motivated (consciously or unconsciously) by race or a protected act (Nagarajan v London Regional Transport [1999] ICR 877, at 885E-G).[268]In order to justify such an inference, the Tribunal would need first to make clear findings of primary fact from which it is proper and justified to draw such an inference. As was made clear in Network Rail Infrastructure v Griffiths-Henry [2006] IRLR 865: “If there is a genuine non-discriminatory reason, at least in the absence of clear factors justifying a finding of unconscious discrimination, that is the end of the matter”.[269]Elias J (President) made the following observation in Law Society v Bahl [2003] IRLR 640, at paragraph 127: “If, however, the tribunal accepts that the reason given for the treatment is genuine, then unless there is evidence to warrant a finding of unconscious discrimination, such that the tribunal is really finding that the alleged discriminator has concealed the true reason even from himself, there will be no basis to infer unlawful discrimination at all. Tribunals can in a proper case make a finding of unconscious discrimination, but it is a significant finding for a tribunal to hold that they can read someone’s mind better than the person himself, and they are not entitled to reach that conclusion merely by way of a hunch or speculation, but only where there is clear evidence to warrant it”.[270]I remind myself that particular care is required when deciding what inferences it might be proper to draw when considering whether a claimant has discharged the burden of proving a prima facie case of discrimination or victimisation (under s136(1) EqA). The following guidance was given by the Supreme Court in Royal Mail Group Ltd v Efobi [2021] UKSC 33 (per Lord Leggatt):(1) The claimant has the burden of proving, on the balance of probabilities, those matters which he wishes the tribunal to find as facts from which the inferences could properly be drawn (in the absence of any other explanation) that an unlawful act was committed (at paragraph 30).(2) The Tribunal is not prevented from taking into account evidence adduced by the respondent insofar as it is relevant in deciding whether the burden of proof has moved to the respondent (at paragraph 20).(3) That will include any facts proved by the respondent which would prevent the necessary inference from being drawn (at paragraph 30).(4) However, explanations (as opposed to evidence) must not be taken into account at the first stage, as the statutory language of s136(1) mandates that the Tribunal must ignore any explanation for those facts given the respondent and assume that there is no adequate explanation for them (at paragraph 22).(5) So, the Tribunal must consider what inferences can properly be drawn in the absence of any explanation for the treatment complained of but no adverse inference can be drawn from the fact that the employer has not provided an explanation (at paragraph 40). Stereotyping[271]There may also be cases where the discrimination is unconscious because, although the reasons for the actions are genuinely the ones which the putative discriminator identifies, they do not appreciate that these reasons are in and of themselves discriminatory. This will be the case where assumptions are made based on stereotypical views of people who have the relevant protected characteristic. But it is well-established that, in this type of case, there must be clear evidence to support the inferences that stereotypical assumptions were made. In Stockton on Tees Borough Council v Aylott [2010] ICR 1278, at [49], Mummery LJ stated: “Direct discrimination claims must be decided in accordance with the evidence, not by making use, without requiring evidence, of a verbal formula such as “institutional discrimination” or “stereotyping” on the basis of assumed characteristics. There must be evidence from which the employment tribunal could properly infer that wrong assumptions were being made about that person’s characteristics and that those assumptions were operative in the detrimental treatment.”[272]I brought to the parties’ attention the case of Commerzbank AG v Rajput [2019] ICR 1613 which demonstrates how careful a tribunal must be before proceeding to determine a case based on allegedly stereotypical views. Such an allegation (i.e. that a person was motivated by stereotypes) must have been clearly advanced, with proper notice to a respondent (see paragraphs 81 to 84). It is also vital that a tribunal only proceeds on the basis of proper evidence as regards the alleged stereotype and/or, potentially, on the basis of ‘judicial notice’ but only where this has been properly canvassed with the parties in advance. Inference from not calling a particular witness[273]Tribunals are sometimes asked to draw an adverse inference from the fact that a respondent has not called a particular witness. As Lord Leggatt made clear in Efobi, whilst it is possible to draw one or more adverse inference from the fact that the employer has failed to call the actual decision-makers, the particular circumstances of the case are highly material. In this regard, Lord Leggatt made clear, at paragraph 40, that: “Whether any positive significance should be attached to the fact that a person has not given evidence depends entirely on the context and particular circumstances. Relevant circumstances will naturally include such matters as whether the witness was available to give evidence, what relevant evidence it is reasonable to expect that the witness would have been able to give, what other relevant evidence there was bearing on the point(s) on which the witness could potentially have given evidence, and the significance of those points in the context of the case as a whole.” Disability[274]Pursuant to section 6 EA 2010,(1) A person (P) has a disability if – (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.(2) A reference to a disabled person is a reference to a person who has a disability.(3) In relation to the protected characteristic of disability – (a) a reference to a person who has a particular protected characteristic is a reference to a person who has a particular disability; (b) a reference to persons who share a protected characteristic is a reference to persons who have the same disability.(4) This Act (except Part 12 and section 190) applies in relation to a person who has had a disability as it applies in relation to a person who has the disability; accordingly (except in that Part and that section) – (a) a reference (however expressed) to a person who has a disability includes a reference to a person who has had the disability, and (b) a reference (however expressed) to a person who does not have a disability includes a reference to a person who has not had the disability.(5) A Minister of the Crown may issue guidance about matters to be taken into account in deciding any question for the purposes of subsection (1).(6) Schedule 1 (disability: supplementary provision) has effect.[275]By paragraph 2 of Schedule 1 to EA 2010,(1) the effect of an impairment is long-term if – (a) It has lasted for at least 12 months; (b) It is likely to last for at least 12 months; or (c) It is likely to last for the rest of the life of the person affected.(2) If an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.[276]Under section 6(5) EA 2010, the Government has issued Guidance on matters to be taken into account in determining questions relating to the definitions of disability (2011). Tribunals must take into account provisions in this Guidance insofar as they are or appear to be relevant to any issues: paragraph 12 of Schedule 1 to EA 2010.[277]The Equality and Human Rights Commission has issued an Employment Code of Practice in the exercise of its powers under section 14(1) of the Equality Act 2006, which Tribunals must take into account in any case in which it appears to be relevant.[278]However, as held by HHJ James Tayler in Elliott v Dorset County Council [2021] IRLR 80 (at paragraph 62), if there is any tension between the Guidance and/or the Code of Practice, on the one hand, and the provisions of the EA 2010, on the other, the statute must prevail.[279]The Guidance on the meaning of disability says that the term mental or physical impairment must be given its ordinary meaning. The cause does not have to be established, nor must it be the result of an illness. “The underlying cause of the impairment may be hard to establish. There may be adverse effects which are both physical and mental in nature. Furthermore, effects of the physical nature may stem from an underlying mental impairment, and vice versa”.[280]When determining whether or not a person has a disability, the Northern Ireland Court of Appeal in Veitch v Red Sky Group Limited [2010] NICA 39 at paragraph 19 held: “The presence or absence of medical evidence may be a matter of relevance to be taken into consideration in deciding what weight to put on evidence of claimed difficulties causing alleged disability but its absence does not of itself preclude a finding of fact that a person suffers from an impairment that has a substantial long-term adverse effect.”[281]Section 212(1) EA 2010 defines “substantial” as “more than minor or trivial”. If something is not trivial, then it is substantial: Aderemi v South Eastern Railway [2013] ICR 591. The threshold is thus relatively low and the Tribunal must look at what the claimant cannot do, rather than what he can do: McNichol v Balfour Beatty[282]In Paterson v Commissioner of Police and the Metropolis [2007] ICR 1522 the Employment Appeal Tribunal concluded that “normal day-to-day activities” must be interpreted as including activities relevant to professional life following the European Court of Justice decision in Chacon Navas v Eurest Colectividades SA [2006] IRLR 706.[283]The assessment of whether an impairment has a “long-term” adverse effect on the person’s ability to carry out normal day-to-day activities must be made at the time of the alleged discrimination (so, in this case, in the period February to June 2023): McDougall v Richmond Adult Community College, at paragraph 22 – 25 and 30 – 35; and All Answers Ltd v W and R [2021] EWCA Civ 606, at paragraph 25.[284]Paragraph C4 of the Guidance on the meaning of disability tells me that, in assessing the likelihood of an effect lasting for 12 months, “account should be taken of the circumstances at the time the alleged discrimination took place. Anything which occurs after that time will not be relevant in assessing this likelihood”.[285]Where the issue is whether the requisite effect is “likely” to continue for at least 12 months, the question is whether it “could well happen” or is a “real possibility”. As such, this determination is not on the balance of probabilities (that is, more likely than not): Boyle v SCA Packaging Limited [200] ICR 105.[286]In cases concerning symptoms of anxiety and low mood there is a distinction to be drawn between a mental condition which would constitute an impairment and what is simply a reaction to “adverse life events”: J v DLA Piper UK LLP [2010] ICR 1052, at paragraphs 42 – 43, considered in Herry v Dudley Metropolitan Council [2017] ICR 610, at paragraphs 53 – 56. I have had regard to paragraph 56 of Herry (per Judge Richardson) where he stated as follows: “Although reactions to adverse circumstances are indeed not normally longlived, experience shows that there is a class of case where a reaction to circumstances perceived as adverse can become entrenched; where the person concerned will not give way or compromise over an issue at work, and refuses to return to work, yet in other respects suffers no or little apparent adverse effect on normal day-to-day activities. A doctor may be more likely to refer to the presentation of such an entrenched position as stress than as anxiety or depression. An employment tribunal is not bound to find that there is a mental impairment in such a case. Unhappiness with a decision or a colleague, a tendency to nurse grievances, or a refusal to compromise (if these or similar findings are made by an employment tribunal) are not of themselves mental impairments: they may simply reflect a person's character or personality. Any medical evidence in support of a diagnosis of mental impairment must of course be considered by an employment tribunal with great care; so must any evidence of adverse effect over and above an unwillingness to return to work until an issue is resolved to the employee's satisfaction; but in the end the question whether there is a mental impairment is one for the employment tribunal to assess.” Reasonable adjustments[287]Under section 20 EA 2010, read with Schedule 8, an employer who applies a provision, criterion or practice (‘PCP’) to a disabled person which puts that disabled person at a substantial disadvantage in comparison with persons who are not disabled, is under a duty to take such steps as are reasonable to avoid that disadvantage.[288]A respondent is not subject to a duty to make reasonable adjustments if it does not know, and could not reasonably be expected to know both that the claimant has a disability and that she is likely to be placed at the relevant substantial disadvantage (EA 2010, Sch 8, paragraph 20): Wilcox v Birmingham CAB Services Ltd (UKEAT/02393/10) at paragraph 37.[289]In considering a reasonable adjustments claim, a Tribunal must identify:(a) the PCP applied by or on behalf of an employer, or(b) the physical feature of premises occupied by the employer,(c) the identity of non-disabled comparators (where appropriate) and(d) the nature and extent of the substantial disadvantage suffered by the claimant: Environment Agency v Rowan [2008] ICR 218, EAT at paragraph 27. The Tribunal must also identify how the adjustment sought would alleviate that disadvantage (at paragraphs 55 – 56 of Rowan). However, an adjustment may still be reasonable even if it is unlikely wholly to avoid the substantial disadvantage: Griffiths v Secretary of State for Work and Pensions [2017] ICR 160, at paragraph 29.[290]The nature of the comparison between disabled and non-disabled people is not like that between claimant and comparator in a direct discrimination claim: it is immaterial that a non-disabled person with all the characteristics of the disabled person but for the disability would be treated equally, what matters is whether “the PCP bites harder on the disabled, or a category of them, than it does on the able-bodied” as a result (for example) of the disabled person being more likely to be disadvantaged by the PCP than a non-disabled person: see Griffiths v Secretary of State for Work and Pensions, at paragraph 58.[291]The concept of a PCP does not apply to every act of unfair treatment of a particular employee. A one-off decision can be a practice, but it is not necessarily one; all three words connote a state of affairs indicating how similar cases are generally treated or how a similar case would be treated if it occurred again: Ishola v Transport for London [2020] EWCA Civ 112 at paragraph 38.[292]The duty to make reasonable adjustments may (indeed, frequently does) involve treating disabled people more favourably than those who are not disabled: Redcar and Cleveland Primary Care Trust v Lonsdale [2013] EqLR 791.[293]What is reasonable is a matter for the objective assessment of the Tribunal: Smith v Churchills Stairlifts plc [2006] ICR 524.[294]The Tribunal is not concerned with the processes by which the employer may have reached its decision to make or not to make particular adjustments, nor with the employer’s reasoning: Royal Bank of Scotland v Ashton [2011] ICR 632.[295]Carrying out an assessment or consulting an employee as to what adjustments might be required is not of itself a reasonable adjustment: Rider v Leeds City Council [2013] Eq LR 98 and Tarbuck v Sainsbury’s Supermarkets Ltd [2006] IRLR 664.[296]Although the EA 2010 does not set out a list of factors to be taken into account when determining whether it is reasonable for an employer to take a particular step, the factors previously set out in the Disability Discrimination Act 1995 are matters to which the Tribunal should generally have regard, including but not limited to:a. The extent to which taking the step would prevent the effect in relation to which the duty was imposed;b. The extent to which it was practicable for the employer to take the step;c. The financial and other costs that would be incurred by the employer in taking the step and the extent to which it would disrupt any of its activities;d. The extent of the employer’s financial and other resources;e. The availability to the employer of financial or other assistance in respect of taking the step;f. The nature of the employer’s activities and the size of its undertaking;g. Where the step would be taken in relation to a private household, the extent to which taking it would:(i) disrupt that household or(ii) disturb any person residing there. Knowledge of disability[297]For the purposes of the reasonable adjustments claim, the Tribunal must be satisfied that the respondent had “actual or constructive knowledge” that the claimant was a disabled person: Gallop v Newport County Council [2014] IRLR 211 at paragraph 36, the Court of Appeal clarifying that the “required knowledge” is of “the facts constituting the employee’s disability” as per s6(1) EqA, namely: “(a) a physical or mental impairment, which has (b) a substantial and long-term adverse effect on (c) his ability to carry out normal day-to-day duties”.[298]The Court of Appeal further held that, “provided the employer has actual or constructive knowledge of the facts constituting the employee's disability, the employer does not also need to know that, as a matter of law, the consequence of such facts is that the employee is a ‘disabled person” (also paragraph 36).[299]Constructive knowledge will arise where an employer did not know of the facts constituting the employee’s disability but ought reasonably to have known of them.[300]As stated in the EHRC Code of Practice, “Employers should consider whether a worker has a disability even where one has not been formally disclosed” [5.14], and “must do all they can reasonably be expected to do to find out if a worker has a disability” [5.15]. Whether the employer has acted reasonably “will depend on the circumstances” and “is an objective assessment” [5.15].[301]Where the Tribunal considers that an employer has failed to make enquiries, it must also establish what it might reasonably have been expected to know had it made such an enquiry. In A Ltd v Z [2020] ICR 199, the EAT held that the employer could not have reasonably been expected to know that the claimant was disabled, in circumstances in which the Tribunal found that the claimant would have suppressed information about her mental health problems even if the employer had made reasonable enquiries.[302]Further, the respondent does not need to make every enquiry where there is little or no basis for doing so (Ridout v T C Group [1998] IRLR 628; Alam v Secretary of State for the Department of Work and Pensions [2010] IRLR 283).[303]Where the employee themselves is not aware of the matters constituting their disability, it is unlikely that their employer will be found to have constructive knowledge of the disability. Role of Occupational Health Advice[304]Occupational health advice may play a role in an employer’s knowledge of the employee’s disability, as made clear in the EHRC Code at [5.17]: “If an employer’s agent or employee (such as an occupational health adviser or a HR officer) knows, in that capacity, of a worker’s or applicant’s or potential applicant’s disability, the employer will not usually be able to claim that they do not know of the disability, and that they cannot therefore have subjected a disabled person to discrimination arising from disability.”[305]However, whilst an employer cannot simply “rubber stamp” an occupational health report (as was the case in Gallop (paragraph 43) and should not approach such a report “uncritically”, “great respect must be shown to the views of an Occupational Health doctor”: Donelien v Liberata (UKEAT/0297/14/JOJ) at paragraph 31, approved by the Court of Appeal in [2018] EWCA Civ 129). Constructive dismissal[306]It is well settled that conduct giving rise to a constructive dismissal must involve a fundamental breach of contract by the employer (either of express or implied terms of contract); that the breach must be an effective cause (but not necessarily the sole or main cause) of the employee’s resignation; and the employee must not, by their conduct, have affirmed the contract before resigning.[307]The fundamental breach of contract may consist of a one-off act or a cumulative course of conduct extending over a period, culminating in a “last straw”. The claimant must identify the alleged breach of contract; establish the evidential basis of their claim and satisfy the tribunal that the facts as proven are sufficient in law to amount to a repudiatory (that is, fundamental) breach of contract.[308]The claimant, in her claims, asserts that the discrimination, harassment and victimisation to which she was allegedly subjected constituted a fundamental breach of contract, which was an effective cause of her resignation on 28 June 2023 such that she was constructively dismissed, that dismissal being a further act of discrimination, harassment and/or victimisation.[309]Not every breach of contract is a fundamental breach: the conduct of the employer relied upon must be, “a significant breach going to the root of the contract of employment, or which shows that the employee no longer intends to be bound by one or more of the essential terms of the contract”: Western Excavating (ECC) Ltd v Sharp [1978] QB 761. The assessment of the employer’s intention is an objective one, to be judged from the point of view of a reasonable person in the position of the claimant. The employer’ actual (i.e. subjective) motive or intention is only relevant if that is something which the claimant was aware of or a reasonable person in their position would have been aware of it and it “throws light on the way the alleged repudiatory act would be viewed by such a reasonable person”: Tullett Prebon v BGC Brokers LLP and ors [2011] EWCA Civ 131, at paragraph 24.[310]Discrimination and victimisation against an employee will usually constitute a fundamental breach of contract entitling them to resign and claim constructive dismissal: Nottinghamshire County Council v Meikle [2004] IRLR 703 (where a failure to make reasonable adjustments was a repudiatory breach of contract); and Driscoll v V&P Global Ltd [2021] IRLR 891 (where the EAT confirmed that constructive dismissal can also constitute an act of harassment under section 40 EA 2010).[311]In Kaur v Leeds Teaching Hospital NHS Trust [2019] ICR 1 the Court of Appeal held (at paragraph 55) that, in the case where an employee claims to have been constructively dismissed as a result of a breach of the implied term of trust and confidence, it is sufficient for a tribunal to ask itself the following questions:(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?(3) If not, was that act (or omission) by itself a repudiatory breach of contract?(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 of mutual trust and confidence? (If it was, there is no need for any separate consideration of a possible previous affirmation because the final act revives the employee’s right to resign in response to the prior breach.)(5) Did the employee resign in response (or partly in response) to that breach?[312]In determining whether a course of conduct comprising several acts and/or omissions amounts to a breach of the implied term of trust and confidence, the approach in Omilaju v Waltham Forest LBC [2005] ICR 481 is to be applied: see Kaur (at paragraph 41).[313]The approach in Omilaju is that a breach of the implied obligation of trust and confidence may consist of a series of actions on the part of the employer which cumulatively amount to a breach of the term, though each individual incident may not do so, and the ‘final straw’ may be relatively insignificant, but must not be utterly trivial. Where prior conduct has constituted a repudiatory breach, however, the claim will succeed provided that the employee resigns at least in part in response to that breach, even if their resignation is also partly prompted by a ‘final straw’ which is in itself utterly insignificant (provided always there has been no affirmation of the breach): Williams v The Governing Body of Alderman Davie Church in Wales Primary School (UKEAT/0108/19/LA) (at paragraphs 32 – 34).[314]In De Lacey v Wechseln Ltd (t/a The Andrew Hill Salon) UKEAT/0038/20, it was held that the fact that the last straw was not itself discriminatory did not automatically mean that a constructive dismissal was not discriminatory, so long as the last straw can be linked back to previous discrimination. In reliance on Williams, the EAT noted that it will be a matter of degree whether discriminatory contributing factors render the constructive dismissal discriminatory.[315]If a fundamental breach of contract is established, the next question is whether it was an effective cause of the dismissal (United First Partners Research v Carreras [2018] EWCA Civ 323); and, thereafter, in accordance with ordinary contractual principles, whether the claimant has, by her conduct, affirmed the contract so as to lose her entitlement to resign and claim constructive dismissal (WE Cox Turner (International) Ltd v Crook [1981] ICR 823). However, in the workplace context, an employee will not necessary affirm their contract of employment by remaining in their job and not resigning immediately – it is a matter of fact and degree, on a careful assessment of the evidence (Quigley v University of St Andrews UKEATS/0025/05/RN, at paragraph 37). Time issues[316]I addressed the applicable principles of law in my oral reasons at the time I delivered my Decision and Reasons on the issue of whether it was ‘just and equitable’ to extend time and accordingly do not repeat them here. DISCUSSION AND CONCLUSIONS Disability [Issues 10 to 12] Anxiety
DISCUSSION AND CONCLUSIONS
[317]I have found that the claimant only began to experience symptoms of stress in February 2023. These led to her needing to take time away from work to improve her symptoms. At this point in time, so February to June 2023, these symptoms of stress did not yet constitute a mental impairment and, rather, were more likely than not a response to adverse stressful events in the claimant’s life – her father’s deteriorating ill-health and her increasing dissatisfaction with work and the way she came to perceive her managers and their decision-making.[318]Looking at matter in the period from February to June 2023, there is no sufficient evidence to persuade me that it is more likely than not that the claimant had a mental impairment at that time (which had a long-term, substantial and adverse effect on her ability to carry out normal day-to-day activities).[319]The symptoms of stress experienced by the claimant, however, increased in intensity again on (and after) 14 June 2023, and the events of 28 June 2023 caused a further impact such that, by 26 July 2023, they had developed into a mental impairment which merited a diagnosis of Mixed Anxiety and Depressive Disorder and the prescription of Citalopram by the claimant’s GP. I fully acknowledge that an impairment requires no clinical diagnosis for the purposes of section 6 EA 2010 – nevertheless, there is a difference between reactions to stressors which are within the normal range of what one might expect from adverse life events (including work and the serious ill-health of a parent) and an actual impairment.[320]I conclude that the stress-related symptoms which the claimant started to experience in February 2023, which abated somewhat in April and May 2023 and which then increased again from 14 June 2023 onwards had developed into an impairment a few weeks before the date of her diagnosis.[321]Accordingly, I conclude that the claimant had developed an actual mental impairment (rather than feelings of stress) which began to have a substantial adverse effect on her ability to carry out normal day-to-day activities but only at the end of June 2023, after her resignation. By this time, I accept (as noted by her GP and as detailed in her Disability Impact Statement) that the claimant was struggling with sleep and impaired motivation and concentration (including things like decision-making and other routine tasks), which are all normal dayto-day activities. However, these effects were not yet long-term, in that they had not lasted 12 months and were not – at that time – likely to last at least 12 months, in the sense that this “could well” happen. I recognise that this is a low bar but there must be some evidential basis for concluding that, this early on in the onset of the claimant’s mental impairment, it “could well” be the case that its substantial adverse effects on her ability to carry out normal day-to-day activities would continue on for several more months (to reach the threshold of at least 12 months of adverse effect).[322]I remind myself that I must view the situation as it existed at the material time and not by reference to what actually came to pass (which was indeed, in my judgment, an impairment with the requisite long-term and substantial adverse effects). However, that was not the case, even as at 26 July 2023. At that time, I conclude that – having just got married and having resigned from a job that was a key stressor for her – there was every reason to think that the claimant would be able to recover quite quickly, with the assistance of medication and some counselling.[323]The claimant, therefore, was not a disabled person, as defined in section 6 EA 2010, by reason of her anxiety at the material time (February to June 2023). I conclude that it was not until October 2023 that the substantial adverse effects of her impairment became long-term – although those effects had still not yet lasted 12 months by that time, they were likely to last at least 12 months in the sense that – by then – it “could well happen”. This, of course, is after the material time with which these proceedings are concerned.[324]It follows that the question of the respondent’s knowledge of disability is no longer in issue (that is, whether it knew or ought reasonably to have known that the claimant was disabled by reference to anxiety). Dyslexia[325]The respondent has conceded that the claimant was disabled by reason of dyslexia at the material time but disputes that it knew or ought reasonably to have known this. I have found that the claimant told Mr Fiscal that she was dyslexic on 10 February 2023, that this was a long-standing impairment (going back to before the start of her employment) and that it adversely affected her ability to read out loud which is a normal day-to-day activity.[326]Accordingly, Mr Fiscal had knowledge that the claimant was a disabled person by reason of dyslexia from 10 February 2023 onwards.[327]I have found that Ms Roson was not told that the claimant was dyslexic. She, therefore, did not have actual knowledge that the claimant was disabled by reference to this impairment. There was nothing else to put Ms Roson on notice of the claimant’s dyslexia and the claimant’s time off in February and March 2023 was not for reasons relating to her dyslexia.[328]Accordingly, I conclude that the facts do not demonstrate that Ms Roson knew or ought reasonably to have known of the claimant’s dyslexia and that this amounted to an impairment which had a long-term, substantial and adverse effect on her ability to carry out normal day-to-day activities. She did not have the requisite knowledge of the claimant’s disability by reason of dyslexia. Requirement to move sites to Embankment Place (10 to 23 February 2023) [Issues 5(a) and 13 to 15][329]I have found that the respondent did require the claimant to move sites. The respondent urges me to conclude that, because the claimant never actually transferred to Embankment Place from More London, her complaints should fail at the first hurdle. I disagree. Mr Fiscal clearly informed the claimant, wider staff and PwC personnel that the claimant and Mr Burrows “will switch locations” [my emphasis] by email dated 22 February 2023. That this did not come to pass is because the claimant was then on sick leave, she raised further concerns about the transfer, Mr Burrows was then encouraged to re-think his resignation and the respondent took on a further Event Planner (Ms “AC”). However, by telling the claimant and others that she “will” move to Embankment Place and as this was widely viewed as a difficult work environment, I conclude that this amounted to a detriment for the purposes of the claimant’s direct race discrimination complaint.[330]I would also have concluded that the decision communicated by Mr Fiscal on 22 February 2023 that the claimant and Mr Burrows “will” switch locations reflected a “provision, criterion or practice” applied by the respondent – namely, that it had the right to require its Event Planners, working on the PwC account, to work at either or both of the PwC sites. This is framed in a slightly different way to the one in the List of Issues but the respondent has properly conceded such a PCP in its closing submissions. It is not prejudiced by that slight reframing. However, given my conclusion that the claimant was not disabled by reason of anxiety at this time and given that this allegation of disability discrimination due to an alleged failure to make reasonable adjustments is by reference to the claimant’s anxiety (which was not a disability at that time), rather than her dyslexia, it follows that this complaint cannot succeed and is, accordingly, dismissed.[331]By emailing the claimant and others on 22 February 2023 stating that the claimant “will” switch locations with Mr Burrows, I have concluded that the claimant was subjected to a detriment.[332]By my findings, I accept that Mr Burrows and Ms Wray were not subjected to that detriment. They are both white. I consider that they are both appropriate comparators, in particular Ms Wray. Their material circumstances were not identical but were sufficiently similar for a meaningful comparison to be made, at the very least as evidential comparators, if not as actual comparators. I reject the respondent’s contention that Mr Burrows could not be a suitable comparator because he was initially based in Embankment Place, whilst the claimant and Ms Wray were based at More London. In my judgment, the detriment lies in the respondent’s decision about where these three Event Planners would be located going forwards. They were all Event Planners, their individual situations were all considered by the respondent in deciding where they should be located and they had all expressed some reservations about working at Embankment Place. Accordingly, the claimant was treated less favourably than Ms Wray and Mr Burrows because she was selected to work at Embankment Place.[333]The question then is whether race (the fact that the claimant is black and they are white) was an effective cause of the treatment. Mr Fiscal – the main decision-maker, whose decision was endorsed by Ms Roson – did not give evidence. The emails do not assist sufficiently with the reason why the claimant was selected over Ms Wray and Mr Burrows. As such, this is not a case where I am able to make positive clear findings about the full reasons operating on the mind of Mr Fiscal. I, therefore, find myself assisted by the burden of proof provisions in section 136 EA 2010.[334]Accordingly, the claimant has the initial burden of proving facts from which I could conclude that Mr Fiscal’s decision (endorsed by Ms Roson) – that the claimant should transfer to Embankment Place – was because of race.[335]I have concluded that such facts have not been proved.[336]First, the racial profile of employees whom the respondent decided to locate at the two sites, at various points in time, does not suggest that race was an effective cause of decisions taken about work location. There were white and non-white employees located at both work sites.[337]Second, as a matter of fact (not a matter of explanation from the respondent, which I should not have regard to at the initial stage), the claimant did not reject outright the proposal that she should move to Embankment Place. When she discussed this possibility with Mr Fiscal, she conveyed a conditional willingness to move, whilst Ms Wray was clear that she was unprepared to move (due to her commute). In my judgment, the claimant’s (albeit equivocal) willingness to move was a key factor which points away from race being an effective cause of Mr Fiscal’s decision.[338]Third, the claimant has not otherwise pointed to any facts from which I could properly infer that race was an effective cause of the decision that she should transfer to Embankment Place. She asserts that, at least in part, Mr Fiscal decided that she and Mr Burrows should switch work locations because he viewed her as “strong”, which she says is a harmful racial stereotype in relation to black women (that they will put up with adversity and remain “strong”). I accept that Mr Fiscal viewed the claimant as strong but there is no sufficient evidence from which I could conclude that Mr Fiscal referred to the claimant as “strong” in a racially stereotypical way (nor indeed that, consciously or unconsciously, he understood this to be a racial stereotype, even if it is). I might, in theory, be prepared to accept that someone describing a black woman as “strong” could well be them engaging in racial stereotyping but this would be highly dependent on context and I would require some wider evidence,(i) of it being a racial stereotype, and(ii) that it was used in such a way by Mr Fiscal, both of which were missing in this case. As I have found, the claimant did not consider that Mr Fiscal’s description of her as “strong” was worthy of remark or comment at the time, nor indeed at any time until her witness statement served a few weeks before this Hearing.[339]Even if the burden did move to the respondent to prove that race played no part whatsoever in Mr Fiscal’s decision that the claimant and Mr Burrows should swap work locations, I would conclude that it has done so. The reason for proposing a switch around in work locations was that Ms McCalla (a black woman) was about to join the respondent and, in February 2023, Mr Burrows (a white man) was due to leave his job and had been clear with management that he was unhappy in London and, in particular, Embankment Place. Ms Wray had told the respondent she was not willing to relocate whilst the claimant had said that she had real concerns about moving back to Embankment Place but she did not refuse outright. In those circumstances, I would have found that the respondent had discharged the burden of proving that the reason for Mr Fiscal’s decision (endorsed by Ms Roson) was entirely operational and had nothing to do with race.[340]For what it is worth, I do not accept the respondent’s submission that Mr Fiscal’s own race (he is black Caribbean) makes it less likely that race was an effective factor in the decision-making. Indeed, section 24 EA 2010 tells me that, for the purposes of establishing direct discrimination, it “does not matter” that the alleged discriminator shares the same protected characteristic as the employee claimant.[341]It follows that the claimant was not treated less favourably because of race and her complaint does not succeed. Failing to arrange meeting with the claimant to discuss possible adjustments to her uniform [Issue 5(d)][342]On my findings, Ms Wray (relied on by the claimant as a comparator for this complaint of direct race discrimination) did have a meeting with management on 14 February 2023 and the claimant did not. Furthermore, the claimant did raise concerns (similar to Ms Wray’s) with management. However (and unlike Ms Wray), she did not request a meeting and she was not at work on 14 February 2023. Had she been at work that day, I conclude that she would have attended the meeting along with Ms Wray. Instead, as I have found, the respondent (Mr Fiscal) informed the claimant about the meeting on 15 February 2023 and told her to get a de-brief from Ms Wray about what was discussed and what could be done to ameliorate the uniform issues.[343]As I have also found, the claimant was offered the same opportunities for alterations to her uniform and other options and she expressed her appreciation to Mr Fiscal at the time.[344]The fact that the claimant’s concerns were dealt with over email whilst Ms Wray had a discussion with management in a meeting had nothing to do with race and everything to do with the fact that Ms Wray explicitly asked for a meeting, whilst the claimant did not and that the claimant was not at work on 14 February[345]As such, the claimant was not subjected to a detriment and I am able to make positive, clear findings about the reason why a meeting was not arranged with the claimant to discuss her uniform issues which show that race had nothing to do with this matter.[346]There was no less favourable treatment because of race and this complaint does not succeed. Alleged protected acts – emails of 16 and 23 February 2023[347]The respondent has conceded that the claimant’s email and letter of resignation of 28 June 2023 was a protected act under section 27 EA 2010 but denies that the claimant did protected acts by reference to her emails of 16 and 23 February[348]As I have found, by her email of 16 February 2023, the claimant did not convey – expressly or by implication – that she was being treated differently to other Event Planners, let alone on racial or other grounds. She accepted, in her oral evidence, that she was not alleging any discrimination via this email and I conclude that she was not doing any other thing by refence to the EA 2010.[349]As I have also found, in her email of 23 February 2023, the claimant did not make an allegation (expressly or otherwise) of – for example, discrimination, harassment, victimisation or failure to comply with the duty to make reasonable adjustments and she did not make any reference, even by implication, to any protected characteristics. She accepted, in her oral evidence, that she was not accusing anyone of discrimination or of doing anything to her which created a harassing environment for her relating to race or disability. Whilst the claimant did refer to her mental health and the need for management support in connection with that, she was not disabled by reason of anxiety at this time and this reference is not enough – read against the background context known at that time – to be a reference to disability or the need for reasonable adjustments and I conclude that she was not doing any other thing by refence to the EA 2010.[350]Accordingly, I conclude that the claimant did not do protected acts by reference to these two emails and all complaints of victimisation which rely on these two emails as protected acts cannot therefore succeed. Letter of concern [Issue 17(a)][351]This inevitably means that the first complaint of victimisation (at Issue 17(a) of the List of Issues), by reference to the ‘letter of concern’ issued by Ms Hughes on 6 April 2023, fails at the first hurdle as there was no protected act which predated this incident. The claimant was, accordingly, not victimised by reason of the respondent giving the claimant a ‘letter of concern’.[352]Even if there had been any protected act done by the claimant prior to the ‘letter of concern’ being issued by Ms Hughes, I would have found that the entire reason for Ms Hughes to issue the letter, which is not even a formal disciplinary sanction (although I accept it was still a detriment, but at the lower end of the spectrum), was the claimant’s obvious lack of attention to detail in emailing a wide list of recipients (including client staff members) in connection with her concerns about the decision to transfer her back to Embankment Place; and the tone and content of that email.[353]Accordingly, on either basis, there was no victimisation in relation to the ‘letter of concern’ issued by Ms Hughes and this complaint does not succeed. Ignoring the claimant’s complaints in emails of 16 and 23 February and 14 June 2023 [Issue 5(g)(i) – (iii)][354]As I have found, in response to the claimant’s email of 16 February 2023, Mr Fiscal invited her to a meeting to discuss her concerns (which invitation the claimant declined as she wished to stick to group conversations). Thereafter, there was a team ‘catch-up’ meeting, at which the proposals regarding changes to employees’ work locations was discussed. Consequently, whilst there was no follow-up meeting, as the claimant had believed there would be, I conclude that the respondent did not ignore the claimant’s concerns in her email of 16 February 2023.[355]On my findings, the respondent also did not ignore the claimant’s concerns in her email of 23 February 2023, with Ms Roson replying to offer to have a chat with the claimant.[356]As I have found, on 14 and 15 June 2023, Mr Fiscal encouraged the claimant to provide details of specific incidents via a formal complaint that would then be addressed, and he suggested that she reach out to Mr van Schalkwijk to obtain guidance. She did not follow up on that suggestion because she was then off work for her wedding and thereafter resigned.[357]Accordingly, her complaints in her emails of 16 and 23 February and 14 June 2023 were not ignored by the respondent and the claimant’s complaints of direct race discrimination fail at the first hurdle and so do not succeed. Failure to accommodate dental appointment around 13 to 14 June 2023 by requiring the claimant to take a half day off work [Issue 5(c)][358]As I have found, the claimant did not book her appointment outside of her working hours or within two hours of the beginning or end of her shift (but two hours after the start of her shift) and did not seek to agree a convenient time with Mr Fiscal before booking her appointment, contrary to the Balancing Work & Home policy. Mr Fiscal, therefore, asked her to take a half day off. With Mr van Schalkwijk’s intervention, the claimant was able to attend her appointment in her lunch hour and so was not required to take any time off.[359]The claimant says that she was treated less favourably than Ms Wray. However, she has not proved the necessary facts about the arrangements for Ms Wray’s dental appointment in January 2023. As I have found, Ms Wray was working from home that day and attended her appointment at some point during that day but I do not know whether this was within the two hours of the start or end of her shift or at lunchtime nor whether she had agreed a convenient time with Mr Fiscal for her appointment. Consequently, I do not consider that Ms Wray’s circumstances have been proved sufficiently to enable me to conclude that she is an appropriate comparator under section 23 EA 2010 for the purposes of this allegation of direct race discrimination, although I acknowledge that she could, in theory, still be a useful evidential comparator. That said, the claimant has also not proved sufficient facts for me to use Ms Wray even as a useful evidential comparator.[360]I, therefore, consider that I must ask myself whether the claimant was subjected to less favourable treatment (as compared with a hypothetical comparator) because of race in that she was required to take a half day off for her dental appointment.[361]I accept that being required to take a half day off to attend an appointment is a detriment. However, the claimant’s complaint cannot succeed as she was not required to take a half day off but was asked to take a half day off when she informed Mr Fiscal, without proper notice, that she had booked an appointment at 10:30am the next day, contrary to workplace policy. Had a white employee been in the same situation as the claimant, I conclude they would likely have been met with the same response by Mr Fiscal.[362]In any event, even if the claimant were to be permitted to rely on an alternative complaint – namely, that she was required to take her dental appointment in her unpaid lunchtime – she has not proved facts from which I could properly conclude that race was an effective cause of this treatment. On my findings, the reason for asking the claimant to rearrange her appointment for lunchtime was Mr van Schalkwijk’s intervention and, thereafter, she was asked to go to the dentist at a time that caused least disruption to the respondent’s operations.[363]There are no facts which point towards race being any part of the respondent’s treatment of the claimant and her complaint accordingly fails at the first hurdle and does not succeed. Hostile behaviour from Ludovic Fiscal on 14 June 2023 in relation to the claimant not wearing the correct uniform [Issue 5(f) and Issue 8(d)][364]I have found that Mr Fiscal did reprimand the claimant, in front of others, on the morning of 14 June 2023 about her uniform but did not reprimand the receptionist, who was a white woman. This conduct was unwanted and a detriment.[365]The claimant says that this was either race-related harassment or direct race discrimination; and I have, first, considered whether it amounted to race-related harassment [Issue 8(d)].[366]Given the claimant’s own perception (which I find was a reasonable one), and the wider context in relation to the uniform issues – which had been fairly contentious between the claimant and the respondent, since she had raised concerns about the new uniform in February 2023 – I conclude that Mr Fiscal’s reprimand on 14 June 2023 had a harassing effect, in that his reprimand, whilst a one-off, nevertheless created a humiliating environment for her.[367]I have had regard to the claimant’s own perception: from my findings, she was clearly very upset at the time, as is clear from the fact she took herself off to a “booth”, feeling “attacked”, and phoned her partner and messaged Ms Wray.[368]I have also had regard to the other circumstances of the case – namely, on my findings: the fact that the claimant had previously raised concerns about the uniform, that the issue of uniforms was still being discussed at the Team Meeting on 12 April 2023, that the claimant still did not have a uniform by May 2023, leading to Ms Roson’s email asking her to check the stock of uniforms or to order a Team Leader uniform, and that the uniforms were behind a locked door which could not be opened so not being in uniform on the morning of 14 June 2023 was not the claimant’s fault.[369]Both the claimant’s perception and the other circumstances lead me to conclude that it is reasonable to conclude that Mr Fiscal’s reprimand had the proscribed harassing effect.[370]However, I must ask myself whether the harassing effect caused by Mr Fiscal’s conduct was related to race. There must be something in the factual matrix which can properly lead me to conclude that the conduct was related to race.[371]The only thing the claimant sought to point to as demonstrating that Mr Fiscal’s conduct that day was related to race is that the white receptionist was not taken to task. However, on my findings, Mr Fiscal was not her line manager. He only managed the Event Planners and the receptionist was not in that team. As such, the fact the receptionist was white is not a sufficient basis from which to infer, let alone conclude, that Mr Fiscal’s conduct was race-related.[372]Furthermore, I have found that, by 14 June 2023, Mr Fiscal was somewhat irritated with the claimant about her time-keeping and her dental appointment (indeed, he had emailed her on 14 June 2023, only an hour or so before he reprimanded her about not being in uniform, about the need to ensure that appointments caused minimal impact on the team/operations).[373]From my findings, I conclude that there are no facts from which I could conclude that Mr Fiscal’s conduct related or was because of race.[374]As such, the claimant was not subjected to race-related harassment and this complaint does not succeed.[375]I then consider whether it was less favourable treatment because of race. This complaint also cannot succeed.[376]The claimant was subjected to a detriment (the reprimand by Mr Fiscal).[377]I do not consider that the white receptionist is an appropriate actual comparator within the meaning of section 23 EA 2010, because she is not one of Mr Fiscal’s team[378]But, even if this was less favourable treatment, by reference to the white receptionist or a hypothetical comparator (and/or using the white receptionist as an evidential comparator), the claimant has not proved facts from which I could properly conclude that this was because of race. This is for the same underlying reasons as I have concluded that the conduct was not “related to” race (for the purposes of the race-related harassment claim). In the final analysis, the claimant has pointed to detrimental treatment and she has pointed to a difference in race between her and the receptionist but not the “something more”. Furthermore, the facts I have found demonstrate that the reason for the reprimand was that the claimant was not wearing the correct uniform, and Mr Fiscal was, in the immediate lead up to his reprimand, feeling rather irritated with the claimant in relation to her time-keeping and the events around her dental appointment, all of which points away from race being any part of the reason for Mr Fiscal’s treatment of the claimant.[379]The claimant was, therefore, not treated less favourably because of race and this complaint does not succeed. Ludovic Fiscal subjecting the claimant to disability-related harassment (relating to her dyslexia) by ending her an email on 14 June using inconsistent text formatting with the result that the email was disjointed and difficult for her to read [Issue 8(d)][380]This relates to Mr Fiscal’s email to the claimant in the evening on 14 June 2023, replying to her email in which she raised a complaint about his conduct that morning (that is, the reprimand) and referred to discrimination and harassment.[381]From my findings, Mr Fiscal did use different size fonts, with two paragraphs in slightly bigger font, but the formatting was not otherwise inconsistent and the email was not disjointed or more difficult to read. Furthermore, the claimant had never raised any issue with Mr Fiscal about her dyslexia, other than the fact she had felt humiliated by the catering manager at the Embankment Place site who had criticised her when she was reading out loud. Mr Fiscal had no idea that using slightly different sized fonts would be at all problematic for the claimant, if indeed it was.[382]From my findings, the claimant’s concern was that someone else had drafted some or all of Mr Fiscal’s email and so this was nothing to do with her dyslexia but about whether her line manager was having his emails drafted for him. The claimant’s response (by email) in no way suggested that she felt her dignity had been violated, nor that she perceived that Mr Fiscal’s email created an intimidating, hostile, degrading, humiliating or offensive environment for her.[383]Accordingly, whilst Mr Fiscal’s conduct may have been unwanted, this was because the claimant had concluded that his emails were being drafted by someone else. His conduct in using different sized fonts gets nowhere close to the threshold for harassing conduct; the claimant did not perceive it to be harassment and, given all the circumstances and her own perception at the time, it would not be reasonable for the conduct to be viewed as having the proscribed effect or effects. Finally, on my findings, the use of different sized fonts in the email was not related to disability (here, the claimant’s dyslexia).[384]As such, the claimant was not subjected to disability-related harassment and her complaint does not succeed. Failing to encourage the claimant to re-think her resignation [Issue 5(b)][385]The claimant says that the respondent did not encourage her to re-think her resignation because of race, unlike Mr Burrows.[386]From my findings, the claimant was indeed not encouraged by the respondent to re-think her resignation. As I have also found, when Mr Burrows notified Mr Fiscal that he was resigning (in January 2023), he had further conversations with Mr Fiscal and Ms Roson and was encouraged to change his mind, which he did (for several months at least). He is white. As I have also found, however, Ms Strainer (also white) was not encouraged to re-think her resignation. The comparison with her, therefore, falls away as neither she nor the claimant were invited to revisit their decisions to resign.[387]I accept that Mr Burrows is an appropriate actual comparator within the meaning of section 23 EA 2010 as his circumstances were sufficiently similar to the claimant’s to provide a proper basis to assess the complaint of less favourable treatment. He had expressed dissatisfaction with his work environment (albeit also with his experience of living in London). The claimant had expressed her dissatisfaction with her work environment (albeit in more trenchant terms than Mr Burrows and she had also raised concerns about discrimination and harassment, including in her resignation letter). However, she relies on this complaint only as an allegation of direct race discrimination (not victimisation).[388]I conclude that not being encouraged to re-think one’s resignation as an employee, when it is known that a colleague was invited to rethink their resignation when they were also unhappy at work, is a detriment.[389]The question, then, is whether this was less favourable treatment because of race. From my findings, and by reference to Mr Burrows, this was less favourable treatment.[390]The question then is whether that less favourable treatment was “because of” race, meaning that race was an effective cause of the respondent’s failure to encourage the claimant to re-visit her decision to resign.[391]As regards Ms Roson, I have been able to make clear findings of fact about the reason why she did not encourage the claimant to revisit her decision to resign.[392]Ms Roson’s conscious rationale was that there was no benefit to the respondent in trying to persuade the claimant to re-think her resignation because she genuinely perceived that: i) the claimant had not been very professional in her attitude to moving back to Embankment Place (albeit that Ms Roson did not know the detail of the wider background, unlike Mr Fiscal); ii) the claimant had been quite challenging in relation to the new uniform; iii) the claimant had been late to work from time to time iv) there was still a question mark over the claimant’s poor judgment (in relation to the email of 23 February 2023, which had been sent to many recipients, including PwC employees)[393]However, I have also found that, in addition to the conscious reasons in her mind, Ms Roson was also influenced by the following: she had found the claimant more and more tricky to manage, finding the situation increasingly challenging because the claimant had begun to complain about discrimination, which Ms Roson was aware of; not just via the letter of resignation but also the email of complaint from the claimant on 14 June 2023. Whilst this might well support a finding of victimisation in respect of this matter (noting, of course, that no such complaint has been pursued), it does not provide a proper basis from which to conclude that Ms Roson failed to encourage the claimant to re-think her resignation because of race.[394]Accordingly, in relation to Ms Roson, I have not found it helpful or necessary to go through the formal two-stage examination under section 136 EA 2010 because I am able to make positive and clear findings about the factors operating in the mind of Ms Roson, both consciously and unconsciously. That said, I would have decided in any event that the claimant has not proved facts from which I could have properly concluded that Ms Roson’s failure to encourage her to re-think her resignation was discriminatory because of race. In that regard, I note that Ms Roson also did not encourage Ms Stainer, who is white, to re-think her decision to resign and, furthermore, I also note that Ms Roson hired Ms McCalla, a black woman, into the Event Planning team which tends to point away from a racial animus on the part of Ms Roson.[395]I have not heard evidence from Mr Fiscal so I cannot make any positive clear findings about the full reasons operating on his mind as to why he did not encourage the claimant to change her mind. I, therefore, find myself assisted by the burden of proof provisions in section 136 EA 2010.[396]Accordingly, the claimant has the initial burden of proving facts from which I could conclude that the lack of encouragement of the claimant, by Mr Fiscal or indeed Ms Roson, to re-think her resignation was because of race.[397]I have concluded that such facts have not been proved.[398]In her closing written submissions, the claimant seeks to rely on the fact that Mr Burrows (her comparator) was not disciplined for identical concerns. I do not accept that the claimant has proved that the respondent (and, specifically, Ms Roson and Mr Fiscal) had any concerns about Mr Burrows’ behaviours (so the possibility of issuing a ‘letter of concern’ would not have arisen). The claimant also asserts that Ms Roson’s alleged concerns in respect of the claimant’s behaviours is “belied by her “Excellent” 2022 performance review”. As to that, neither party took me to a 2022 performance review in respect of the claimant; and the only appraisal I was referred to was a partially completed document from 17 April 2023. That document was not completed by management and does not, accordingly, how any rating from the respondent’s perspective, so does not assist in demonstrating that Ms Roson’s reference to issues about the claimant’s behaviour were contradicted by her appraisal. The claimant does not point to any other matters which might suggest that race was a factor.[399]Accordingly, whilst the claimant was treated less favourably than Mr Burrows, the claimant has not discharged the initial burden of demonstrating something more than a difference in treatment and a difference in race – in other words, she has not proved facts from which I could properly conclude that race was an effective cause of the treatment complained of. As such, this complaint does not succeed. Hostile behaviour from Paula Roson to the claimant on 28 June 2023 following receipt of the claimant’s resignation, including(i) demanding an informal meeting,(ii) racially derogatory ‘mimicking’ of the claimant’s behaviour,(iii) placing her on garden leave and(iv) having her escorted from site [Issues 5(e), 8(a), 17(b)][400]The claimant relies on Ms Roson’s conduct on 28 June 2023, as set out in Issues 5(e), 8(a) and 17(b) as race-related harassment, direct race discrimination and/or victimisation.[401]From my findings, I conclude that Ms Roson’s conduct on 28 June 2023 was both(i) unwanted, and(ii) had the effect of creating a hostile environment for the claimant.[402]I have reached this conclusion based on my findings in respect of Ms Roson’s conduct in placing the claimant on garden leave, demanding an informal meeting with her, and then having her escorted from the workplace by security, and viewed against the background context of: an increasingly strained working relationship between the claimant, Ms Roson and Mr Fiscal; a lack of proactive support for the claimant (including the lack of any return to work meeting or occupational health referral and/or the failure to arrange a meeting with HR to enable the claimant’s concerns to be more formally discussed, particularly after 14 June 2023); and the fact that, on 28 June, the claimant had already discussed her resignation with her line manager such that no further meeting with management would have been expected, and certainly not a meeting at the end of the work day, called without any notice and using a colleague to tell the claimant that Ms Roson was looking for her.[403]To be clear, I have found that Ms Roson did not gesticulate in such a way as to amount to racial ‘mimicking’ of the claimant; and, if that was the claimant’s perception at the time (which I conclude, on the balance of probabilities, is unlikely to be the case), it was not reasonable to view Ms Roson’s conduct as having such an effect. Therefore, whilst I conclude that Ms Roson’s other conduct did have the proscribed effect, that conclusion does not encompass the gestures by Ms Roson.[404]In reaching the conclusion that Ms Roson’s conduct (other than the gesticulating) had the effect of creating a hostile environment for the claimant, I have taken into account the claimant’s perception (which evidently was to view Ms Roson’s conduct as hostile), the other circumstances of the case (as detailed in my findings) and whether it is reasonable to view Ms Roson’s conduct as having the proscribed harassing effect (which, on my findings, I conclude is objectively reasonable).[405]As regards Issue 8(a), the question then is whether Ms Roson’s conduct was related to race. Looking at the evidence in the round, there is no feature which could properly lead me to conclude that Ms Roson’s conduct was related to race. Had I found there to be racial mimicking, that would have been a sufficient basis on which to find that Ms Roson’s wider conduct towards the claimant on 28 June 2023 was related to race; but I have found that, on the balance of probabilities, Ms Roson gesticulated with her arms and hands because that is a normal aspect of her own way of communicating and/or expressing herself, not to mimic the claimant or to mimic her perception of a black woman, as alleged by the claimant.[406]Accordingly, the claimant was not subjected to race-related harassment and this complaint does not succeed.[407]Turning then to issues 5(e) and 17(a) (direct race discrimination and victimisation), the question is whether Ms Roson’s hostile conduct in deciding to place the claimant on garden leave, demanding an informal meeting and/or calling security to escort the claimant from the premises was “because of” race and/or because of the claimant’s protected act, done on 28 June 2023 (via the allegations of discrimination, harassment and victimisation made by the claimant in her letter of resignation).[408]I conclude that the three aspects to Ms Roson’s hostile conduct towards the claimant are each inherently connected one with the other, such that they should be viewed overall since the rationale for the garden leave decision informed the demand for an immediate meeting that day which, in turn, influenced the decision to call security (when the claimant refused to have the meeting with Ms Roson without HR in attendance).[409]Having heard evidence from Ms Roson, I am able to make clear, primary findings about her state of mind and the operative causes of her conduct on 28 June 2023 – that is, on my findings, I am able to step back and answer the ‘reason why’ question.[410]For the purposes of the complaint of direct race discrimination (Issue 5(e)), I note that Ms Roson did not require two white employees, Mr Burrows or Ms Stainer, to take garden leave (and so did not demand a meeting with either of them to discuss garden leave) and nor did she require security to escort them off site, yet she also did not take these two steps in relation to Ms McCalla (who is black) (although I note that Ms McCalla had complained about race discrimination and was off work sick at the time of her employment terminating). The situations of Mr Burrows, Ms Stainer and Ms McCalla are too dissimilar for any of them to be appropriate statutory comparators (under section 23 EA 2010) or even useful evidential comparators. I also remind myself that Ms Roson’s evidence is that two white members of the Welcome Team were put on garden leave by her, whilst Mr Fiscal (who is black) was not placed on garden leave or escorted off the premises. The fact that four colleagues (white and black) were not treated in similar manner to the claimant and that two white colleagues (one of whom was not senior) were put on garden leave by Ms Roson does tend to point away from race being an operative cause of her treatment.[411]On the basis of my findings, I have not accepted Ms Roson’s evidence that her decision to place the claimant on garden leave was a concern about confidentiality and professionalism in respect of the claimant and that this was, at least in part, informed by complaints or feedback allegedly made by two PwC building managers. I have also not accepted Ms Roson’s evidence that she took the decision to place the claimant on garden leave because the claimant had just got married and so, having a month of paid time off work, was not a bad option.[412]I have regard to the fact that placing a junior employee such as the claimant on garden leave is unusual (it is not normal policy, as confirmed by Mr van Schalkwijk) and asking security to escort an employee off site is clearly not a routine occurrence, recalling that Mr Vasquez apparently perceived the situation as unfair. This, therefore, demands careful scrutiny.[413]On my findings, the immediate cause of the decision to require the claimant to attend an informal meeting was that Ms Roson had decided to place the claimant on garden leave and wished to convey that to the claimant and, when she took exception to that, the situation deteriorated leading to the intervention of security staff. However, Ms Roson kept insisting on having the meeting even though the claimant had explained (both before 28 June, via email, and on the day, verbally to Ms Roson) that she would only agree to have such a meeting in the presence of HR. Since it was 5pm at this time and the claimant was leaving work anyway, and a meeting could therefore have been arranged, with HR present, the next day (29 July 2023) or even the day after (30 July 2023), there was no proper basis for the urgency, and that cries out for explanation.[414]I am left, then, as regards all three aspects of Ms Roson’s hostile conduct towards the claimant on 28 June 2023, with the underlying reference to “behavioural issues” in Ms Roson’s email at 05:11 on 29 June 2023 and my finding that Ms Roson’s perception of the claimant as an employee with “behavioural issues” was informed by the fact that the claimant had complained in her letter of resignation about discrimination, harassment and victimisation (against the context of her earlier complaints about discrimination and harassment in her email of 14 June 2023).[415]I recall that, although not pursued as a complaint of victimisation, I have found that the failure to encourage the claimant to re-think her resignation is likely to have been influenced by Ms Roson’s view of the claimant as a “problem”, at least in part because she had started to complain about discrimination. This is clear background evidence of victimisation, at the same time as Ms Roson’s unreasonable and hostile conduct on 28 June 2023.[416]I do not lose sight of the fact that another employee who complained about discrimination (Ms McCalla) was not subjected to similar hostile conduct by Ms Roson. However, I conclude that this is explained by the fact that Ms McCalla was on sick leave at the time of the termination of her employment.[417]On the basis of my findings, I conclude that an effective cause of Ms Roson’s hostile conduct on 28 June 2023 was the inclusion by the claimant of allegations of discrimination, harassment and victimisation in her letter of resignation that same day – that is, her protected act.[418]This complaint of victimisation is, therefore, well-founded and it succeeds. Communicating to the client that the claimant’s employment was terminated [Issue 8(b) & 17(b)][419]I have found that Ms Roson did tell staff at PwC (the respondent’s client) that the claimant’s employment had terminated.[420]I conclude that this was neither detrimental treatment nor conduct which had the purpose or effect of creating a harassing environment for the claimant. It was a statement of fact which the client needed to know and Ms Roson was the correct person to communicate this fact. It gets nowhere close the required threshold for a “detriment” or for harassment.[421]In any event, the clear and entire reason for communicating to the client that the claimant’s employment had terminated was that PwC needed to know about resourcing issues and, specifically, about a change in personnel. There is nothing to suggest that this was because of the claimant’s protected act nor for any reason relating to race.[422]These complaints of race-related harassment and victimisation are without foundation and do not succeed. Portraying the claimant as the ‘aggressor’ in relation to the encounter in which the claimant was escorted off site [ Issues 8(b) & 17(c)][423]From my findings, Ms Roson did portray the claimant as the ‘aggressor’ in her email to HR and to Nikki Woods at 05:11 on 29 June 2023 and by telling people that her employment had been terminated in circumstances where the claimant had been argumentative and aggressive. The claimant alleges that this was race-related harassment and/or victimisation.[424]Being portrayed as threatening and abusive is “unwanted conduct”. Against the background context of Ms Roson’s conduct the day before (that is, on 28 June 2023), and having regard to the claimant’s perception, being portrayed as the ‘aggressor’ did create a hostile environment for the claimant at that time (the claimant became aware of Ms Roson portraying her in this way when she attended the More London site on 3 July 2023); and I conclude that it is reasonable to view the conduct as having that effect.[425]The question then is whether Ms Roson’s conduct in portraying the claimant as an aggressor was related to race. As I have found, the claimant did not put this to Ms Roson, nor that portraying her in that way was an exercise in racial stereotyping. I have also found that Ms Roson did not racially “mimic” the claimant on 28 June 2023. I have found that the other differences in treatment asserted by the claimant as compared with white colleagues (Mr Burrows, Ms Wray and Ms Stainer) – both in relation to the complaints in the List of Issues and in respect of background matters like the team meeting on 12 April 2023 – were not racially discriminatory. Other than being told that Ms McCalla had concerns about race discrimination, the claimant has not adduced evidence of the matters underlying these concerns and I have not made any findings that Ms McCalla was subjected to race discrimination, only that she perceived that she was, had complained about that and had left her employment with the respondent. Consequently, the claimant has not proved facts from which I could properly conclude that the unwanted conduct here was related to race. Accordingly, the claimant’s race-related harassment complaint does not succeed.[426]However, I conclude that the claimant’s victimisation complaint is well-founded for the same reasons as I have determined that Ms Roson’s conduct towards the claimant on 28 June 2023 was victimisation. Ms Roson was predisposed against the claimant and portrayed her as the aggressor because she felt the claimant was challenging; but the claimant’s protected act (her resignation letter and its references to discrimination, harassment and victimisation) was an effective cause of Ms Roson’s perception of her.[427]This complaint of victimisation, therefore, succeeds. Failing to pay the claimant two days’ holiday pay (including one day for wedding leave) [Issue 17(d)][428]From my findings, the claimant was paid the 1.83 days of holiday pay owing to her but was not paid for her one day of wedding leave entitlement. However, this was not because of any protected act (there being no evidence that the WSH “Service Desk” staff had any knowledge of the claimant’s protected act), but because they genuinely (albeit mistakenly) believed that the entitlement had only come into existence in August 2023 which was after the claimant’s employment terminated.[429]As such, this complaint of victimisation is not well-founded and it does not succeed.. Constructive dismissal – discrimination and/or harassment and/or victimisation [Issue 18][430]From my findings, at the point of the claimant’s resignation on the morning of 28 June 2023, there had been no act of discrimination, harassment or victimisation. As regards her claim of constructive dismissal, the claimant relies on there having been one or more such incidents but I have found against her in respect of all her complaints under the EA 2010 prior to her resignation on 28 June.[431]Accordingly, the claim of constructive dismissal (amounting to discrimination, harassment and/or victimisation) is without foundation and it does not succeed. Concluding remarks[432]For convenience, I have separated out each incident relied on by the claimant in her claims by reference to the List of Issues and set out my conclusions. However, I have not lost sight of the need to step back and review the overall picture reflected in the evidence I have seen and heard. I have asked myself whether there are facts in the background which may have provided any sufficient evidential basis from which to draw inferences of discrimination, harassment and/or victimisation. Save for certain of the complaints of victimisation (which I have determined are well-founded), I am satisfied that there is no proper basis to conclude that any of the other incidents relied on, whether viewed individually or together and considering the evidence in the round, amount to contraventions of the EA 2010.[433]Given that the claimant has succeeded in her complaints that the respondent victimised her by placing her on garden leave, putting pressure on her to attend an informal meeting and having her escorted off site by security and by portraying her as the ‘aggressor’, the case will now proceed to a remedy hearing. Case management orders will be made to enable the parties to prepare for that hearing. Approved by: