Employment Judge Abbott, Ms L Gledhill and Ms E ThompsonMr A Shepherd (instructed by lay representative) for claimantMr N Bidnell-Edwards (instructed by direct access) for respondentDate 29 May 2023
JUDGMENT
ON RECONSIDERATION The unanimous judgment of the Tribunal is that:[1]The substantive part of the Liability Judgment is confirmed, save to add by way of clarification the following wording: “The unanimous judgment of the Tribunal is that:”.[2]The Reasons for the Liability Judgment are varied as follows:a. Paragraph 40.3 shall now read: “On balance, we found that, in his drunken state, Mr G did try to dance with Ms C and, in doing so, touched her bottom inappropriately and made inappropriate comments as to her attractiveness. This conduct was not welcomed or wanted by Ms C and was, we found, of a sexual nature. Ms C rejected Mr G’s advances. We found Ms C’s account of this in paragraphs 45 and 46 of her witness statement and in oral evidence to be credible, albeit a little exaggerated. It was supported, at least in part, by evidence from Miss D and Miss E. Because of his inebriated state, we did not consider Mr G to be a reliable witness as to his actions that evening. The Respondent submitted that we should not believe Ms C’s account because it was not one that she raised contemporaneously in any recorded meetings (where she was instead fixated on the interactions of Mr G and Miss Y, as is evident from reading the covertly-recorded transcripts in the bundle, e.g. that of Ms C’s disciplinary meeting at [381-442]), and only first came to be described at the hearing before EJ Dyal in September 2021. Indeed, it was said that aspects of her conduct in the aftermath of the event undermined her account – we considered and rejected these arguments as part of our overall consideration of the evidence, as detailed in the paragraphs below. We considered that the lack of evidence of the allegations being raised by Ms C earlier does not undermine a finding that the events happened. This was a small employer and Ms C was, as recognised in her appraisals, doing a good job. There is every reason to think that she preferred not to rock the boat. The Respondent also sought to paint the allegations as part of a revenge campaign against Mr G orchestrated by Ms C with Miss D and Miss E, and pointed to the unreliability of the evidence of Ms C, Miss D and Miss E on other matters. Our factual findings in this section reflect that we did reject the evidence of each of those individuals on certain other issues, and we took account of this as part of our overall consideration of the evidence. However, it is well recognized that the fact that a witness had lied about one matter does not necessarily mean that he or she has lied about another. We did not accept the submission that this was part of a revenge campaign – in our judgement, it is unlikely that Miss D and Miss E would have agreed to give false evidence, under oath, in a Tribunal hearing purely for the benefit of Ms C, notwithstanding any bad feeling they have for Mr G as a result of the ways in which their employment with the Respondent ended (Miss D resigned whilst under disciplinary investigation; Miss E was dismissed for misconduct (including a finding by the Respondent that she had pressurized another member of staff to write a false statement) and there was unchallenged evidence from Mr G that Miss E had made malicious and abusive threats towards the Respondent and Mr G soon after her dismissal). Their accounts of the evening in question were also credible on their face: they did not claim they saw and heard everything that happened, but what they did claim to have seen was consistent with Ms C’s account. Overall, we did not consider it likely that Ms C fabricated her account.”b. Paragraph 40.4 shall now read: “Mr G did not try to kiss Msc. C. Although this was included in the List of Issues, it was not supported in any of the Claimant’s evidence. It was submitted by the Respondent that this undermined Ms C’s whole case as to what happened at the Christmas party. We rejected that submission. In our judgement, whilst it demonstrates a propensity for exaggeration, it does not support a finding that Ms C has fabricated her account of events at the Christmas party.” c. Paragraph 42.2 shall now read: “When Ms C spoke to Mr G, she focused on his inappropriate behaviour with Miss Y. We find she did not allege, in terms, that Mr G has sexually harassed / assaulted her (consistent with Mr G’s evidence), but it is more likely than not that she did mention his inappropriate behaviour towards her as part of her wider criticism of Mr G’s conduct at the party. Like Miss I, Mr G did not appreciate the seriousness of what he was being told about his conduct towards Ms C amidst the wider picture of his conduct at the party but was plainly embarrassed by his overall behaviour. In that context, and in particular because Mr G raised concerns about his wife finding out about his affair, Ms C offered him ‘advice’ as to how to conduct an affair (see [497] where she recounted this during her disciplinary meeting). It was submitted by the Respondent that this undermined Ms C’s case as to what happened at the Christmas party. We rejected that submission and see no obvious reason why Ms C having made these comments necessarily undermines her evidence as to what happened at the Christmas party. Mr G went along with Ms C’s proposal that she go round the nursery apologising on Mr G’s behalf for his behaviour at the party. Ms C conceded in oral evidence that this was her idea rather than Mr G’s, contrary to her written evidence. Like Miss I, Mr G considered there was no need to take any further steps in respect of what Ms C had reported to him.”d. Paragraph 50 shall now read: “The meeting took place on 28 September 2020. Present were Miss D, Ms C, Mr H (from N Ltd as investigating officer) and Mr J as note taker. Ms C covertly recorded this meeting. The purpose of the meeting was to discuss a breach of confidentiality by Miss D, in respect of certain Facebook posts and comments made by Miss D with another staff member (at the time of the posts) Miss E and Miss E’s daughter, who was a former parent of the nursery [827-834]. It was the suspicion of the Respondent that these posts were a reference to Mr G and Miss Y’s relationship and that, accordingly, because the posts involved an exparent, this amounted to a breach of confidentiality on Miss D’s part. Miss D denied that the posts were a reference to Mr G and Miss Y at the meeting, and both Miss D and Miss E maintained that position in their oral evidence to the Tribunal. We find that, on the balance of probabilities the posts were a reference to Mr G and Miss Y. Whether they were or not was a topic discussed at the meeting. We rejected Ms C’s evidence that this topic was not raised in the meeting, which is contrary to the written record and to the very nature of the allegations against Miss D. Ms C cannot have failed to appreciate the subject matter of this meeting, and her evidence was coloured by a refusal to accept this basic point simply because Miss D had presented a different explanation for the Facebook posts. This was not credible.”[3]By way of correction under Rule 69, the representation of the Respondent as recorded in the Liability Judgment is amended to read “Mr N Bidnell-Edwards, barrister, instructed by direct access”.
REASONS
[1]This is the unanimous judgment of the Tribunal in respect of the Respondent’s application for reconsideration of the Liability Judgment made in writing on 16 June 2023. The Claimant resists the application and relies on written submissions provided on 22 June 2023.[2]Neither party objected to the application being determined without a hearing, and the Tribunal was satisfied that a hearing is not necessary in the interests of justice. The panel met in chambers on 18 July 2023 to consider the application.[3]As with the Liability Judgment, this Reconsideration Judgment has been prepared in fully anonymised form pending final determination of the Respondent’s application for a permanent anonymity order under Rule 50.
Relevant law
[4]Rule 70 of the Employment Tribunals Rules of Procedure 2013 provides that: “A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again.”[5]The process is as set out in Rule 72. In this instance, the Judge considered that there was reasonable prospect of the original decision being varied or revoked (Rule 72(1)) and therefore the application was referred to the full panel. As noted above, both parties have had the opportunity to, and have, provided written representations. The scope of the application[6]The Respondent invites the Tribunal to:a. vary paragraph 2 of the Liability Judgment to change “The claim for sexual harassment is dismissed as the Tribunal does not have jurisdiction to hear it” to instead read “The claim for sexual harassment is not well-founded and is dismissed”; andb. vary the finding in paragraph 40.3 of the Reasons for the Liability Judgment (“the Reasons”) that Mr G did “try to dance with Ms C and in doing so, touched her bottom inappropriately and made inappropriate comments as to her attractiveness”.[7]The Respondent argues that there are a number of factual matters which do not appear to have been taken into consideration in the Liability Judgment which, once they are taken into account, undermine the original conclusions. The Respondent’s position is that the Tribunal should not have accepted the evidence of Miss D, Miss E and Ms C in respect of the events on the night of 30 November 2019. It is said that the Tribunal did not fully consider the submissions made by the Respondent at the Final Hearing in respect of the credibility of these witnesses. Rather than set out the specific points here, we address them in the discussion below.[8]The Claimant supports the Tribunal’s original findings in this regard.
Discussion
[9]As is recorded in the final sentence of paragraph 40 of the Reasons, the Tribunal carefully considered the various accounts of what happened on the night of 30 November 2019 when making its findings. That included assessing the reliability of those accounts considering all relevant factors such as the inherent plausibility of the accounts, consistency with other evidence, motivation and any other demonstrated propensity to give false evidence.[10]In terms of evidence from those present at the afterparty on 30 November 2019, we heard from:a. Mr G. As recorded in paragraph 40.1 of the Liability Judgment, we rejected Mr G’s evidence that he was not drunk as inconsistent with the evidence of other witnesses, including in particular that of the Respondent’s own witness Miss I. Specifically, Miss I gave oral evidence that at the end of the evening Mr G walked in a drunken manner to the taxis and that he was ushered by some people that it was time to go home. It was also inherently implausible in the light of his admitted openly sexual behaviour with Miss Y in front of everyone at the party. Accordingly, we found at paragraph 40.3 that Mr G was not a reliable witness as to his actions that evening.b. Msc. C. As recorded in paragraph 40.3 of the Liability Judgment, we found Ms C’s account to be credible. That paragraph specifically addresses, and rejects, various arguments that were raised by the Respondent against that evidence. This evidence was the core basis for the Tribunal’s findings. c. Miss I. As noted above, we took account of Miss I’s oral evidence as to Mr G’s inebriation. Miss I denied seeing any inappropriate behaviour from Mr G directed toward Ms C but fairly accepted she was not constantly watching the two of them all evening, so could not definitively say it did not happen.d. Miss D. She gave evidence that she observed Mr G lingering around Ms C trying to get her to dance with him, but did not witness him actually touching her. We found this evidence believable, and it provided some degree of background support for Ms C’s account, albeit of a circumstantial nature since she did not actually see any touching.e. Miss E. She gave evidence that she did see Mr G grope at Ms C’s bottom. We found this evidence believable, and it provided some support for Ms C’s account. The evidence of Ms C[11]The Respondent challenges the credibility of Ms C’s account at paragraph 46 of her witness statement. It argues that, had things happened as described by Ms C, then it would have been seen by others and there would have been gossip in the nursery about what happened between Mr G and Ms C, but there was not – rather all gossip was focused on Mr G and Miss Y.[12]We have reconsidered Ms C’s evidence on this point. It is right to record that we did not accept all of Ms C’s evidence as to what happened on the night of 30 November 2019, in part because of the low likelihood that things happened in precisely the way Ms C described without it being witnessed by others (other than Miss E). However, in our judgement, we considered there to be a degree of exaggeration rather than fabrication. We vary paragraph 40.3 of the Reasons to deal more expressly with this aspect.[13]The Respondent also highlights that the Claimant had pursued in the List of Issues an allegation that Mr G tried to kiss her, but did not maintain this in her evidence. We dealt with the point in paragraph 40.4 of the Reasons. The Respondent argues this shows a propensity to cast false allegations. Again, we considered this to amount to exaggeration rather than fabrication of the entirety of what happened on 30 November 2019. We vary paragraph 40.4 of the Reasons to expressly deal with this argument.[14]Finally, the Respondent points to Ms C’s actions in giving tips to Mr G about how to have an affair on 2 December 2019. We vary paragraph 42.2 of the Reasons to add findings in this regard. The evidence of Miss D and Miss E[15]The Respondent’s application does not challenge the inherent plausibility of the accounts of Miss D and Miss E regarding the events of 30 November 2019. Instead, it invites the Tribunal to make findings as to their evidence in relation to other matters.[16]As regards both Miss D and Miss E, it is said that findings should be made as to what certain Facebook posts referred to, because (it is said by the Respondent) that their evidence on this topic was obviously false and this therefore goes to the overall credibility of their evidence. The Facebook posts are those discussed in paragraph 50 of the Reasons.[17]In the Tribunal’s judgement, we consider it more likely than not that the Facebook posts in question were about Mr G and Miss Y. Miss D and Miss E’s accounts of what these posts were about were inherently implausible. Although we had not made a definitive finding, our doubts as to the veracity of Miss D and Miss E’s evidence on this topic already formed part of our consideration. We now vary paragraph 50 of the Reasons to include this express finding.[18]As regards Miss E, the Respondent further points to the unchallenged evidence from Mr G concerning the circumstances of her dismissal. Paragraph 40.3 of the Reasons does refer to the fact of Miss E’s dismissal, and the Tribunal had regard to the circumstances of the dismissal when making its findings. We vary paragraph 40.3 of the Reasons to deal more expressly with these points. Overall reconsideration of the evidence[19]Having made the additional findings described above and taking account of the arguments made by the Respondent, we reconsidered whether our core findings in the first sentence of paragraph 40.3 of the Reasons (and therefore paragraph 2 of the Liability Judgment) should be varied. We concluded that they should not be.[20]It is well recognized that the fact that a witness had lied about one matter does not necessarily mean that he or she has lied about another (see, e.g., Arnold J (as he then was) in Gorgeous Beauty Ltd v Liu (and others) [2014] EWHC 2952 (Ch) at [31], and more recently Cotter J in Muyepa v Ministry of Defence [2022] EWHC 2648 (KB) at [12]). This is a case in which every one of the five relevant witnesses has given evidence that we disbelieved on some topics, albeit to differing degrees (e.g. Mr G as regards his inebriation; Miss I as regards Ms C having become “difficult to manage”; Ms C on various topics; Miss D and Miss E on the Facebook posts). All of this is factored into our overall assessment of the evidence as to what happened on 30 November 2019. Taking account of all the evidence, we remain of the view that is it more likely than not that, in his drunken state, Mr G did try to dance with Ms C and, in doing so, touched her bottom inappropriately and made inappropriate comments as to her attractiveness.[21]We vary paragraph 40.3 of the Reasons to further expand our discussion of why we made the findings we did. Other matters[22]Two other minor corrections are made and are recorded here for convenience: see paragraphs 1 and 3 of the Judgment above. The first is to clarify that the Liability Judgment was the unanimous judgment of the Tribunal – this was stated in the oral reasons but was accidentally omitted in the written version. The second is to correct an error made in recording how the Respondent’s counsel was instructed, as was highlighted to the Judge by the Respondent on 6 June 2023. Both concern accidental slips and are hereby corrected pursuant to Rule 69.[23]A copy of the revised Liability Judgment is provided with this Reconsideration Judgment.
Relevant law
[24]Section 27(3) EqA excludes from the scope of ‘protected act’ false evidence or information, or false allegations, made in bad faith.[25]The EHRC Employment Code summarises what might amount to a detriment (paras 9.8 and 9.9): “‘Detriment’ in the context of victimisation is not defined by the Act and could take many forms. Generally, a detriment is anything which the individual concerned might reasonably consider changed their position for the worse or put them at a disadvantage. This could include being rejected for promotion, denied an opportunity to represent the organisation at external events, excluded from opportunities to train, or overlooked in the allocation of discretionary bonuses or performance-related awards. A detriment might also include a threat made to the complainant which they take seriously and it is reasonable for them to take it seriously. There is no need to demonstrate physical or economic consequences. However, an unjustified sense of grievance alone would not be enough to establish detriment.” 26. ‘Because of’ can fairly be equated to ‘by reason that’ or ‘on grounds of’ (Amnesty International v Ahmed [2009] ICR 1450, EAT). The essential question in determining the reason for a claimant’s treatment is: what, consciously or subconsciously, motivated the employer to subject the claimant to the detriment? The protected act must be one of the reasons but need not be the only reason. Time limits (EqA claims)[27]Section 123(1) EqA provides, insofar as relevant, that a complaint under the Act may not be brought after the end of: “(a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable.”[28]Under section 123(3), conduct extending over a period is treated as done at the end of the period, and a failure to do something is to be treated as occurring when the person in question decided on it.[29]In considering whether to allow an extension of time under the ‘just and equitable’ test, the Tribunal has a wide discretion but there is no presumption that the discretion should be exercised. A Tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time, so the exercise of the discretion is the exception rather than the rule (Bexley Community Centre v Robertson [2003] EWCA Civ 576). In other words, the burden of persuasion is on a claimant.[30]The Court of Appeal in Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 23, explained that the best approach for a tribunal in considering the exercise of the discretion is to assess all the factors in the particular case which it considers relevant to whether it is just and equitable to extend time, including in particular the length of, and the reasons for, the delay. The judgment also quoted from an earlier Court of Appeal judgment, Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640, which emphasised at paragraph 19 that factors which are almost always relevant to consider when exercising any discretion whether to extend time are:(a) the length of, and reasons for, the delay and(b) whether the delay has prejudiced the respondent (for example, by preventing or inhibiting it from investigating the claim while matters were fresh).
Findings of fact
[31]The relevant facts are, we find, as follows. Where it has been necessary for the Tribunal to resolve any conflict of evidence, we indicate how we have done so at the relevant point. References to “[xx]” are to page numbers in the Bundle of Documents. Only findings of fact relevant to the issues, and those necessary for us to determine, have been referred to in this judgment. We have not referred to every document that the Tribunal read and/or was taken to in the findings below, but that does not mean such documents were not considered if referred to in the evidence and/or in the course of the hearing.[32]On 9 January 2017, Ms C commenced her employment with the Respondent [97]. At the relevant times for this claim, she was employed as a Nursery Nurse at a nursery operated by the Respondent as franchisee of N Ltd.[33]On 1 December 2018, Ms C won the Respondent’s Employee of the Year Award for 2018 [664].[34]On 6 December 2018 a meeting took place involving Ms C, Miss I, and two managers from N Ltd to discuss, informally, the Claimant’s conduct. The notes of that meeting were signed by Ms C [665]. The notes record Ms C being congratulated on her recent Award, but also make reference to an incident the previous week in which Ms C had got things “off her chest”. The notes also record Ms C being told “that if this happens again then there is obviously a problem with [her] and not the other people so to please be more aware and speak up as soon as anything happens or when she is not happy with anything and we can deal with it”.[35]Ms C did not accept this meeting ever happened, and denied signing the notes, but we preferred Miss I’s evidence on this point and find the notes are an accurate record of a meeting that actually took place. We did not consider it likely that the Respondent would have gone to the trouble of fabricating this document, which has little if any direct relevance to the issues in this case, and there is no reliable evidence to indicate it was fabricated. We were taken to a transcript of a call between Ms C and Miss I on 24 April 2019 (covertly recorded by Ms C) which Ms C relied upon as evidence that Miss I couldn’t have been at the meeting on this date as she was on annual leave. However, on fully considering that transcript [320- 329], it was evident to the Tribunal that there was some confusion in the conversation regarding two different meetings, and ultimately Miss I is clear that she was not on annual leave on 6 December 2018. In the Tribunal’s judgement, the most likely explanation is that Ms C had simply forgotten this informal meeting happened and that she had signed the notes.[36]On 6 March 2019 Ms C raised in a room meeting concerns over another, more junior, staff member not doing her share of work. The staff member was upset by this and made a complaint. There followed a disciplinary investigation into this incident, which commenced on 12 March 2019 and involved the Respondent’s solicitors, the ultimate result of which was that no formal action was taken against Ms C, but a letter was sent to her on 18 April 2019 setting out the Respondent’s expectations in respect of her conduct going forward. That letter [241-242] included the following statements:36.1 “It is evident from the documentation enclosed [which comprised interview notes and emails from various members of staff] that your colleagues have raised concerns about the manner in which you speak to them and your attitude in the room however, we can see that there has been a marked improvement in your conduct over the last two weeks. We have therefore taken the decision not to pursue this matter via a formal disciplinary process however, do feel it appropriate to provide you with this formal letter setting out our expectations moving forward.”36.2 “The nursery code of conduct must be adhered to at all times including that “you must cooperate fully with your colleagues and with management and to ensure the maintenance of acceptable standards of politeness” and we therefore expect the improvement in your conduct to continue.”36.3 “Please note that failure to maintain the improvement in your conduct and attitude could result in formal disciplinary action being taken, at a later date.”[37]Notably Ms C had accepted in the course of the investigation that she can come across to colleagues as rude at time, stating in interview that “I try not be rude but if I’m rude I rude [sic]” [161]. The effect of this process on Ms C was two-fold:37.1 At the beginning of the process, she immediately went off work sick with stress and anxiety [168, 671-676], returning on 1 April 2019; and37.2 By the end of the process, she had lost faith in the Respondent and felt that management no longer wanted her working there. Thereafter, Ms C began to regularly covertly record meetings she had with management.[38]On 31 May 2019 there was an incident in which a confidential email relating to Ms C was left open on an unlocked computer terminal in the nursery. No further action was taken by the Respondent in relation to this incident.[39]On 17 September and 11 December 2019, following appraisal reviews of Ms C’s performance and conduct, she received salary increases, with the effect that her salary increased from £17,500 to £21,000 in the space of 4 months [864-865]. We rejected Miss I’s evidence that Ms C’s conduct had deteriorated and that she had become “difficult to manage” by late 2019, which is inconsistent with these appraisal outcomes. 40. 30 November 2019 was the date on which the nursery’s Christmas party took place. The party began at a restaurant, where drinks were available to the attendees with their food. From around 10.30pm the party then transferred, by taxis, to a cocktail bar, where further drinks were available at a table reserved for the party and from the bar. Having carefully considered the various different accounts of what happened that night from the witnesses, we made the following findings.40.1 Mr G was drunk, to the extent that he displayed significantly disinhibited behaviour. He spent much of the evening dancing in an openly sexual manner with a younger member of staff, Miss Y, with whom he was (unbeknownst to the majority of the staff, including Ms C) already having an extramarital affair. The activities of Mr G and Miss Y that evening subsequently became the subject of much gossip in the nursery. We did not accept Mr G’s evidence that “the occasion got to him” but that he was not drunk, which was not consistent with the other evidence, including that of the Respondent’s own witness Miss I. On balance, we consider it was the alcohol that got to him.40.2 Mr G tried to pour alcohol into the mouths of members of staff, including Ms C and another male staff member. Whilst this was inappropriate behaviour from a manager to his staff, we found that there was no sexual element to this act. It was not specifically directed to Ms C or even only to female staff – Mr G was indiscriminate in this regard.40.3 On balance, we found that, in his drunken state, Mr G did try to dance with Ms C and, in doing so, touched her bottom inappropriately and made inappropriate comments as to her attractiveness. This conduct was not welcomed or wanted by Ms C and was, we found, of a sexual nature. Ms C rejected Mr G’s advances. We found Ms C’s account of this in paragraphs 45 and 46 of her witness statement and in oral evidence to be credible, albeit a little exaggerated. It was supported, at least in part, by evidence from Miss D and Miss E. Because of his inebriated state, we did not consider Mr G to be a reliable witness as to his actions that evening. The Respondent submitted that we should not believe Ms C’s account because it was not one that she raised contemporaneously in any recorded meetings (where she was instead fixated on the interactions of Mr G and Miss Y, as is evident from reading the covertly-recorded transcripts in the bundle, e.g. that of Ms C’s disciplinary meeting at [381-442]), and only first came to be described at the hearing before EJ Dyal in September 2021. Indeed, it was said that aspects of her conduct in the aftermath of the event undermined her account – we considered and rejected these arguments as part of our overall consideration of the evidence, as detailed in the paragraphs below. We considered that the lack of evidence of the allegations being raised by Ms C earlier does not undermine a finding that the events happened. This was a small employer and Ms C was, as recognised in her appraisals, doing a good job. There is every reason to think that she preferred not to rock the boat. The Respondent also sought to paint the allegations as part of a revenge campaign against Mr G orchestrated by Ms C with Miss D and Miss E, and pointed to the unreliability of the evidence of Ms C, Miss D and Miss E on other matters. Our factual findings in this section reflect that we did reject the evidence of each of those individuals on certain other issues, and we took account of this as part of our overall consideration of the evidence. However, it is well recognized that the fact that a witness had lied about one matter does not necessarily mean that he or she has lied about another. We did not accept the submission that this was part of a revenge campaign – in our judgement, it is unlikely that Miss D and Miss E would have agreed to give false evidence, under oath, in a Tribunal hearing purely for the benefit of Ms C, notwithstanding any bad feeling they have for Mr G as a result of the ways in which their employment with the Respondent ended (Miss D resigned whilst under disciplinary investigation; Miss E was dismissed for misconduct (including a finding by the Respondent that she had pressurized another member of staff to write a false statement) and there was unchallenged evidence from Mr G that Miss E had made malicious and abusive threats towards the Respondent and Mr G soon after her dismissal). Their accounts of the evening in question were also credible on their face: they did not claim they saw and heard everything that happened, but what they did claim to have seen was consistent with Ms C’s account. Overall, we did not consider it likely that Ms C fabricated her account.40.4 Mr G did not try to kiss Ms C. Although this was included in the List of Issues, it was not supported in any of the Claimant’s evidence. It was submitted by the Respondent that this undermined Ms C’s whole case as to what happened at the Christmas party. We rejected that submission. In our judgement, whilst it demonstrates a propensity for exaggeration, it does not support a finding that Ms C has fabricated her account of events at the Christmas party.[41]On leaving the club at around 02.00am, there was an incident between Mr G and the bouncers which ended with Mr G being on the floor. How he came to be there is irrelevant to the issues in this claim. After this, as she tried to help Mr G, Ms C’s arm was roughly grabbed by Mr G in an aggressive manner. We found Ms C’s account of the grabbing (which was supported by the evidence of Miss E) to be credible and likely, and, because of his inebriated state, we did not consider Mr G to be a reliable witness as to his actions. However, in our judgement, inappropriately aggressive as it was, this was not conduct of a sexual nature. Further, in her oral evidence, Ms C disavowed that this incident was motivated by her having rejected Mr G’s advances earlier in the evening, and we accepted that to be correct.[42]On 2 December 2019, conversations took place between, first, Ms C and Miss I and, second, Ms C and Mr G.42.1 We found that, as part of an account of Mr G’s drunken behaviour at the party given in the round, including Mr G’s conduct with Miss Y, Ms C did mention to Miss I that he had been sexually inappropriate and aggressive towards her. To that extent, we preferred Ms C’s evidence over Miss I’s. However, Miss I did not appreciate the seriousness of what she was being told about Mr G’s conduct towards Ms C amidst the wider picture of Mr G’s conduct at the party, and therefore advised Ms C that she should raise her issues directly with Mr G and considered no further action was necessary on her part. This, we consider, is why Miss I does not recall Mr G’s conduct specifically towards Ms C being part of the conversation.42.2 When Ms C spoke to Mr G, she focused on his inappropriate behaviour with Miss Y. We find she did not allege, in terms, that Mr G has sexually harassed / assaulted her (consistent with Mr G’s evidence), but it is more likely than not that she did mention his inappropriate behaviour towards her as part of her wider criticism of Mr G’s conduct at the party. Like Miss I, Mr G did not appreciate the seriousness of what he was being told about his conduct towards Ms C amidst the wider picture of his conduct at the party but was plainly embarrassed by his overall behaviour. In that context, and in particular because Mr G raised concerns about his wife finding out about his affair, Ms C offered him ‘advice’ as to how to conduct an affair (see [497] where she recounted this during her disciplinary meeting). It was submitted by the Respondent that this undermined Ms C’s case as to what happened at the Christmas party. We rejected that submission and see no obvious reason why Ms C having made these comments necessarily undermines her evidence as to what happened at the Christmas party. Mr G went along with Ms C’s proposal that she go round the nursery apologising on Mr G’s behalf for his behaviour at the party. Ms C conceded in oral evidence that this was her idea rather than Mr G’s, contrary to her written evidence. Like Miss I, Mr G considered there was no need to take any further steps in respect of what Ms C had reported to him.42.3 We find Ms C did not have any reasonable belief that either Miss I or Mr G would further pursue what she had reported. Ms C’s own written evidence was to the effect that she understood Miss I to be “avoiding any responsibility and duty of care as my manager” (paragraph 59 of her witness statement), and it was inherently unlikely that Mr G would investigate himself. Further, neither Miss I nor Mr G gave any sign in the period that followed that they were investigating what Ms C had told them, either at a general level or specifically as regards Mr G’s conduct towards Ms C. As far as they were concerned, the matter was closed.[43]On 11 December 2019, Ms C had an appraisal. We have already mentioned at paragraph 39 above the pay rise that followed the appraisal meeting. The meeting was relied upon by the Respondent as undermining her account of being sexually harassed, because the notes record her wellbeing as “happy, fine” [701] and records Ms C offering thanks to, among others, Mr G for “support and patience with me” [703]. We rejected that argument. The oral evidence from both Ms C and Miss I was that an appraisal was a meeting to focus on the Claimant’s work performance and not a forum to discuss other concerns, so it is not inconsistent with our findings as to what happened on 30 November 2019 that Ms C made these comments in an appraisal focusing on her work.[44]In January 2020, Ms C returned from holiday in her home country with gifts for the nursery. We found that Ms C did not buy gifts specifically for Mr G, as was suggested in the Respondent’s evidence, but rather for the broader staff. Further, we did not consider that this gesture undermines our findings as to what happened at the Christmas party.[45]On 16 January 2020 there was an incident in which a confidential document relating to Ms C’s previous complaint regarding breach of confidentiality was left hanging out of a shelf behind Miss I’s desk in the nursery office. Ms C made a complaint regarding this [711]. Some remedial steps were taken by the Respondent, but no disciplinary further action was taken by the Respondent against Miss I [714].[46]On 27 January 2020, Ms C agreed to babysit for Mr G. His child was a “key child” of Ms C at the nursery and they had a strong bond. It was not unusual (but by no means an obligation) for nursery staff to agree to babysit for their “key children” outside of the scope of their work for the Respondent. Such arrangements were typically made directly between the member of staff and the parents of the child; however, this particular arrangement was facilitated by Miss I rather than directly between Ms C and Mr G. It was submitted by the Respondent that this agreement to babysit undermined Ms C’s case as to what happened at the Christmas party. We rejected that submission. The babysitting engagement did not require any direct interaction between Ms C and Mr G as regards arrangements, which were all done through Miss I as an intermediary. There was no objective reason for Ms C to fear going to Mr G’s home to babysit, not least as there were expected to be other adults present as is clear from the WhatsApp messages between Mr G and Miss I and between Miss I and Ms C from that day [715-717]. Ms C agreed to babysit because of her close relationship with the child – this does not undermine our findings as to what happened at the Christmas party.[47]At the end of March 2020, Ms C was furloughed [722]. We found that this decision to furlough (and to keep Ms C on furlough up until her dismissal) was in no way influenced by anything that had happened at the Christmas party or because she had reported Mr G’s conduct at the party to Miss I or to Mr G, but was a decision made based on business need. We had no reason to doubt the evidence of Mr G, Miss I and Mr J in this respect, which was essentially unchallenged in cross-examination. Ms C seemed to suggest in her oral evidence that she should have been brought back from furlough earlier, but that is inconsistent with an email she sent on 27 May 2020 [723] in which she specifically asks to stay furloughed until October 2020 and a further email she sent on 1 July 2020 [725] indicating she would have childcare issues if required to return to work. We therefore rejected that point.[48]In September 2020, Ms C agreed to accompany a colleague, Miss D, at a disciplinary hearing. Prior to doing so, she agreed the terms of a confidentiality agreement and recorded in emails to Miss I on 22 and 23 September 2020 that she understood she was not allowed to discuss the meeting with anyone else [344-346]. The agreement records that:48.1 “any information regarding the meeting taking place is not permitted to be discussed in any form with any other employee, relative or person known to you”; and48.2 “If this agreement is breached, then disciplinary action will be taken against you which could result in your dismissal from the company”.[49]The agreement also makes reference to the need to “fully respect the confidentiality policy that we have in place”. The policy that was in place at the relevant time is at [119-120]. There was a dispute as to whether Ms C was aware of this policy at the time, but since it is concerned primarily with protecting information relating to the children and their families, it is of no direct relevance to the case. However, Ms C can reasonably be expected to be aware of the confidentiality provision in her contract of employment [104], which provides as follows: “You will not at any time either during your employment or afterwards, to the detriment or prejudice of the Company or the Company's customers, use or divulge to any person, firm or company, except in the proper course of your duties during your employment by the Company, any confidential information identifying or relating to the Company, details of which are not in the public domain, or such confidential information or trade secrets relating to the business of any customer of the Company which have come to your knowledge during your employment.”[50]The meeting took place on 28 September 2020. Present were Miss D, Ms C, Mr H (from N Ltd as investigating officer) and Mr J as note taker. Ms C covertly recorded this meeting. The purpose of the meeting was to discuss a breach of confidentiality by Miss D, in respect of certain Facebook posts and comments made by Miss D with another staff member (at the time of the posts) Miss E and Miss E’s daughter, who was a former parent of the nursery [827-834]. It was the suspicion of the Respondent that these posts were a reference to Mr G and Miss Y’s relationship and that, accordingly, because the posts involved an ex-parent, this amounted to a breach of confidentiality on Miss D’s part. Miss D denied that the posts were a reference to Mr G and Miss Y at the meeting, and both Miss D and Miss E maintained that position in their oral evidence to the Tribunal. We find that, on the balance of probabilities the posts were a reference to Mr G and Miss Y. Whether they were or not was a topic discussed at the meeting. We rejected Ms C’s evidence that this topic was not raised in the meeting, which is contrary to the written record and to the very nature of the allegations against Miss D. Ms C cannot have failed to appreciate the subject matter of this meeting, and her evidence was coloured by a refusal to accept this basic point simply because Miss D had presented a different explanation for the Facebook posts. This was not credible.[51]On Sunday 4 October 2020, there was a telephone call between Ms C and a colleague, Miss Z. Miss Z subsequently reported to the Respondent that, in this call, Ms C had referred to the meeting with Miss D that she had attended and mentioned that it had been about Mr G and Miss Y. It was alleged on the part of Ms C that Miss Z’s account must have been fabricated because the meeting with Miss D was not about Mr G and Miss Y, and that therefore she must have been pressurised into making this statement as a pretext for the Respondent to take action against Ms C. We have already rejected the premise of this allegation – the meeting with Miss D was concerned with Mr G and Miss Y as the suspected subjects of the Facebook posts. Further, there is no evidence whatsoever to support a finding that Miss Z was pressurised into making this statement by anyone. We found it was not procured in that way.[52]The Respondent considered that the allegation made by Miss Z was sufficient to merit a disciplinary investigation into breach of confidentiality by Ms C. On 12 October 2020, Ms C was invited to a disciplinary meeting. The invite letter [357] identified the subject as “alleged breach of the confidentiality agreement which was sent to you via email on 22/09/2020”, a copy of which was attached [364-366], so it was objectively clear that it concerned Ms C’s role as a companion for Miss D. The letter also attached handwritten notes of Miss Z’s account as provided to Mr H with the notes taken by Mr J [358-363]. Ms C was subsequently provided, at her request, with a typed version of these notes [369-371] so it was objectively clear what was being alleged against Ms C. The letter also gave Ms C notice of her right to be accompanied at the hearing, and that formal action may follow, which (as she confirmed in oral evidence) Ms C understood could mean dismissal.[53]The disciplinary meeting took place on 20 October 2020. Ms C was accompanied by a colleague, Miss X. Ms C covertly recorded this meeting. The meeting lasted for more than 2 hours. Mr H set out the allegations and Ms C was given a fair opportunity to address them. However, she was fixated on communicating her view that the meeting with Miss D was not concerned with Mr G and Miss Y and therefore that Miss Z’s account must be false. However, as we have found, Mr G and Miss Y’s relationship was indeed a topic of that meeting, as the Claimant cannot have failed to appreciate. It is not necessary for the purposes of determining the issues in this case to examine further what Ms C said about Mr G and Miss Y’s relationship during the disciplinary meeting. The key point is that Ms C advanced a position that Miss Z’s account was false and, in fact, it was Miss Z who had raised the topic of Mr G and Miss Y in the telephone call on 4 October 2020, and that Ms C had not told Miss Z anything about the meeting with Miss D.[54]Presented with these two competing accounts, Mr H considered the evidence and concluded that Miss Z’s account was to be preferred. He therefore found that the allegation of breach of confidentiality by Ms C was made out. He presented these findings to the Respondent’s management (i.e., Mr G, Miss I and Mr J), who collectively decided that the breach was sufficiently serious to merit summary dismissal. The Respondent’s policies class a serious breach of confidentiality as an act of gross misconduct [149], and the confidentiality agreement Ms C agreed to in respect of the meeting with Miss D specifically refers to the possibility of dismissal if the agreement is breached [346]. We find that the dismissal was not in any sense influenced by anything that had happened at the Christmas party or because she had reported Mr G’s conduct at the party to Miss I or Mr G. Anything that had happened between Mr G and Ms C at the party was long forgotten as far as the Respondent’s management were concerned and was out of mind by this time.[55]Ms C was dismissed with effect from 6 November 2020. The dismissal letter [518] recorded this and offered a right of appeal to Ms W (Early Years Quality Manager at N Ltd).[56]Ms C did avail herself of her right to appeal, which she did so in writing as she claimed to have been advised by her doctor not to attend any face-toface meetings with representatives of Monkey Puzzle [536-537]. She alleged as follows: “Your reasons for dismissing me are vague at best. You say I have breached your confidentiality policy/agreement, terms you throw around constantly at any vulnerable employees you want to harass in order to cover up flouting Ofsted rules and indiscretions by members of the management. The meeting held by [Mr H] on the 22nd October 2020 was a farce. [He] failed to produce any evidence proving I had breached confidentiality policy/agreement. He simply insinuated that because another member of staff told me [certain things about Mr G and Miss Y’s relationship], that I was in some way breaking confidentiality by simply being told this (now proven to be true) information. It was made very clear to me that [Mr H] had no basis for the alleged breach. Later he presented me with his hastily typed out version of the minutes of the meeting which omitted every critical point of consequence made by me and included only the lies he wanted to include in order to further his and [Mr G]’s agenda (my dismissal). [Mr H]’s minutes therefore bore little if any resemblance to what actually transpired in the meeting, the notes for which I have recorded in detail. [Mr H] offered me a ‘without prejudice’ settlement in the hope that I would just ‘shut up and go away’. I can assure you this will not happen. As furlough was scheduled to be discontinued at the beginning of November, I find the timing of this meeting highly suspect. It is clear to me that [Mr G] and [N Ltd] were engineering my dismissal to coincide with the end of the furlough scheme as they knew perfectly well that I had been told about [Mr G]’s inability to control his sexual desires towards young vulnerable members of staff, and were systematically firing any practitioners that knew about his indiscretions which I have personally experienced, as witnessed. I am basing my appeal on information you have failed to disclose. You have yet to reveal how I have breached [N Ltd]’s confidentiality rules. The ‘evidence’ you have provided for the basis for my dismissal is so non-specific and vague, it borders on non-existent. Please stipulate exactly how I have breached your confidentiality policy and prove to me that my dismissal was fair.”[57]However, despite having a covert recording of the meeting, Ms C did not raise any specific criticisms of the accuracy of the formal notes. She also did not raise an allegation that she had herself been a victim of sexual harassment by Mr G.[58]Without the benefit of being able to discuss with Ms C, Ms W did what she could do with the appeal, which was to re-examine the materials before her. She also interviewed Mr J and Miss X (as the only other attendees of the disciplinary meeting other than Ms C and Mr H) to get their views as to the conduct of the disciplinary meeting. Neither raised any material criticisms [584-587]. Ms W decided to uphold the decision to dismiss, confirmation of which was sent to Ms C on 18 November 2020 [591-592]. There was no evidence to suggest that Ms W was in any way influenced by Mr G or other members on the Respondent’s management in coming to her decision on the appeal, and we found she was not so influenced.[59]Ms C engaged in ACAS Early Conciliation between 19 and 26 November 2020, and presented her claim to the Tribunal on 26 November 2020. Conclusions Unfair dismissal Issue 2.1: What was the reason or principal reason for dismissal?
Conclusions
[60]The burden falls on the Respondent to show a potentially fair reason for dismissal. We were satisfied that the Respondent has discharged its burden of showing that the reason for dismissal was a breach of confidentiality by Ms C, i.e., she was dismissed for misconduct. No credible alternative reason was advanced, and we rejected on the facts the suggestion that the reason for dismissal was anything to do with events at the Xmas party or Ms C’s reports to Miss I and Mr G thereafter.[61]Accordingly, the Tribunal found that the Respondent dismissed Ms C for a potentially fair reason falling within section 98(2) ERA. Issue 2.2: Did the Respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the Claimant?[62]We first applied the three-step test in Burchell as explained above (which covers sub-issues2.2.1 and2.2.2 ).[63]We were satisfied that the Respondent had a genuine belief that the Claimant had committed misconduct and had reasonable grounds for that belief. Mr H had the account of Miss Z which was, on its face, credible. He found that account to be more believable than Ms C’s, which was a conclusion reasonably open to him.[64]We were also satisfied that there had been a reasonable investigation. Mr H had spoken to both people involved in the conversation in which the alleged breach had taken place (i.e., Miss Z and Ms C) and weighed up their evidence. He had himself been present at the meeting with Miss D so was already aware of the subject matter of that meeting and, in any event, the formal notes of that meeting were available.[65]Stepping back, we were satisfied that the Respondent otherwise acted in a procedurally fair manner, looking at the overall process (sub-issue 2.2.3). The Respondent could have been a little more specific in the disciplinary invite letter as to the alleged breach (tying the strands together rather than just identifying that it concerned the meeting with Miss D and providing Ms C with Miss Z’s account) but, as is evident in the transcript of the meeting recording, the allegation was made clear to Ms C in the disciplinary meeting itself and she had ample opportunity to address it. Moreover, the Respondent appointed an objectively independent person (Mr H, from N Ltd, rather than a member of the Respondent’s management) to investigate and make findings, which was appropriate to do given the size and resources of the Respondent. Other procedural safeguards such as the right of accompaniment and right to appeal were available to Ms C, and she availed herself of those.[66]We were satisfied that dismissal was within the range of reasonable responses for the Respondent (sub-issue 2.2.4). This is because the confidentiality agreement alleged to have been breached by Ms C specifically mentioned dismissal as a possibility for breach. This was an agreement considered by Ms C a very short time before the alleged breach. Whilst other employers may have been more lenient in the circumstances, we cannot conclude that no employer could reasonably have dismissed in these circumstances.[67]Overall, applying the test in section 98(4) ERA, in our judgement the Respondent did act reasonably in all the circumstances in treating Ms C’s conduct as a sufficient reason to dismiss her. Conclusion on unfair dismissal[68]In view of the above findings, the Tribunal concluded that the claim for unfair dismissal was not well-founded and shall be dismissed. Issue 3 (remedy) therefore did not arise to be determined. Sexual harassment (s.26 EqA) Issue 4.1: Did the Respondent do the following things: 4.1.1. On 30 November 2019 at the work Christmas party: Mr G tried to dance with the Claimant, grabbed her rear, tried to kiss her, tried to pour alcohol on her chest and told the Claimant she was very attractive and kept doing so after she told him to stop. The Claimant rejected his advances. Issue 4.2: If so, was that unwanted conduct? Issue 4.3: Was the unwanted conduct of a sexual nature?[69]We found on the facts that, on 30 November 2019 at the work Christmas party:69.1 Mr G did, in an inebriated state, try to dance with Ms C, touched her rear and told her she was attractive. All of this was unwanted conduct of a sexual nature. Ms C rejected his advances. See paragraph Error! Reference source not found. above.69.2 Mr G did attempt to pour alcohol into the Claimant’s mouth, but that was not unwanted conduct of a sexual nature. See paragraph 40.2 above.69.3 Mr G did not try to kiss Ms C. See paragraph Error! Reference source not found. above. Issue 4.4: Did the conduct have the purpose or effect of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant?[70]The conduct to be considered here is that identified in paragraph 69.1 above, i.e., that conduct we have found, in fact, happened and was unwanted conduct of a sexual nature.[71]Considering all of the evidence, we found that Mr G did not have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for Ms C, in his inebriated state. However, on balance, we were satisfied that the conduct had the effect of violating the claimant’s dignity. Ms C certainly perceived herself as having had her dignity violated, as evidenced by the conversations she had with Miss I and Mr G on 2 December 2019. It is reasonable for Mr G’s conduct to have had that effect: this is in particular because of the nature of the imbalanced power relationship between Mr G, as owner of the Respondent, and Ms C as an employee, but also the circumstances of the conduct happening at what was meant to be a celebratory work event.[72]That is not the end of the matter, as we must come back to consider time limits (issue 1), which we shall do after addressing the other allegations. Issue 4.1: Did the Respondent do the following things: 4.1.2. After the party, outside, Mr G was drunk and fighting with security people. The Claimant was asked by colleagues to go over and tell him to go home. He grabbed the Claimant on her left arm and squeezed it and said this is because you didn’t give me any attention tonight. 4.1.3. Furloughed the Claimant (whilst recruiting new staff). 4.1.4. Persuaded Miss Z to make a false allegation that the Claimant had breached the confidentiality of a disciplinary hearing she attended as companion for Miss D. 4.1.5 Dismissed the Claimant. Issue 4.5.: Did the Respondent treat the Claimant less favourably because the Claimant rejected the conduct [under allegation 4.1.1]?[73]We found on the facts that:73.1 After the Christmas party, Mr G did grab Ms C’s arm, but this was not because Ms C had rejected his earlier conduct and nor was it conduct of a sexual nature. See paragraph 41 above.73.2 Ms C was furloughed and kept on furlough up to her dismissal. However, this was in no way influenced by anything that had happened at the Christmas party but rather was a decision made based on business need. See paragraph 47 above.73.3 Miss Z was not persuaded to make a false allegation by the Respondent. See paragraph 51 above.73.4 Ms C was dismissed. However, this was in no way influenced by anything that had happened at the Christmas party but rather was because of Ms C’s conduct. See paragraph 54 above.[74]Accordingly, none of these allegations amount to unfavourable treatments because Ms C rejected Mr G’s conduct on 30 November 2019. All fail on the facts. Issue 1: Time limits[75]We now return to the question of time limits.[76]None of the acts that we have found fall under section 26 EqA occurred within 3 months prior to the claim being made (even taking account of extension for early conciliation). They all occurred on 30 November 2019 and the claim was not brought until 26 November 2020, nearly 9 months after the primary time limit. There were no continuing acts running into the primary period either, on our findings.[77]The question therefore is whether it is just and equitable in all the circumstances to extend time. If not, the Tribunal does not have jurisdiction to determine Ms C’s claim under section 26 EqA.[78]As noted earlier, the burden of persuasion in this respect is on the Claimant. The exercise of the discretion is the exception rather than the rule. As explained in Morgan, there are two factors which are almost always relevant when considering the exercise of any discretion whether to extend time:(1) the length of, and reasons for, the delay; and(2) whether the delay has prejudiced the respondent (for example, by preventing or inhibiting it from investigating the claim while matters were fresh). Adedeji confirms that the Tribunal can assess all the factors in the case that it considers relevant, including these.[79]We were not satisfied that the burden of persuasion has been discharged by Ms C in this case. Ms C gave no real explanation for why the allegations were not pursued earlier. We have accepted that they were mentioned, as part of a wider account of Mr G’s behaviour, to Miss I and to Mr G on 2 December 2019. However, nothing that Miss I or Mr G said or did that day could have led Ms C to reasonably believe that they were going to do anything about it, and nor did they understand they needed to do anything about it. They regarded the matter as closed. We did not accept Ms C’s evidence that she believed that the matters were being investigated, which was inconsistent with her own account of Miss I and Mr G’s reactions.[80]Nevertheless, Ms C stayed silent on these matters over the course of many months, not raising them during her disciplinary process, nor even (at least as regards herself as a victim) in her appeal. The allegations first surfaced in the ET1 in non-specific terms and were only specified at the case management hearing in September 2021. By that time, the balance of prejudice was firmly against Ms C, as the Respondent had been denied the opportunity to gather evidence to rebut the allegations closer in time to when the alleged events occurred, when recollections may have been clearer. In other words, the Respondent was put at a disadvantage at the Final Hearing in terms of the evidence it could make available to the Tribunal.[81]We take account of the fact that victims of such conduct do not always find it easy to raise and pursue their allegations promptly, and that the COVID pandemic took Ms C out of the work environment a few months after the incident in question. However, the delay in this case is very considerable, is inadequately explained and, as explained above, causes real prejudice to the Respondent. Ms C did not give us any proper basis to be persuaded that it is just and equitable to extend time in all the circumstances of this case. We were not so persuaded. Conclusion on sexual harassment[82]In view of the above findings, the Tribunal concluded that it does not have jurisdiction to determine the claim for sexual harassment, which shall therefore be dismissed on that basis. Victimisation (s.27 EqA)[83]We can deal with this claim relatively shortly in view of the conclusions above.[84]Allegations 4.1.3 to 4.1.5 are relied upon as the things done to Ms C under this head of claim (sub-issue 5.2). We found on the facts that:84.1 Ms C was furloughed and kept on furlough up to her dismissal. However, this was in no way influenced by anything that had happened at the Christmas party or because she had reported Mr G’s conduct at the party to Miss I or Mr G but rather was a decision made based on business need. See paragraph 47 above.84.2 Miss Z was not persuaded to make a false allegation by the Respondent. See paragraph 51 above.84.3 Ms C was dismissed. However, this was in no way influenced by anything that had happened at the Christmas party because she had reported Mr G’s conduct at the party to Miss I or Mr G but rather was because of Ms C’s conduct. See paragraph 54 above.[85]It is therefore not necessary to decide whether these things were ‘detriments’ or whether either or both of Ms C’s reports to Miss I and to Mr G on 2 December 2019 meet the definition of a ‘protected act’. There is simply no causal link, on the facts, between the things done and the reports made. Nor was there any suggestion that the things were done because the Respondent feared Ms C might do a ‘protected act’ - anything that had happened between Mr G and Ms C at the party was long forgotten as far as the Respondent’s management were concerned and was out of their mind by this time of these things happening. Conclusion on victimisation[86]In view of the above findings, the Tribunal concluded that the claim for victimisation was not well-founded and shall be dismissed.[87]In view of the dismissal of both EqA claims, issue 6 (remedy) therefore did not arise to be determined.
Conclusions
[1]By its Judgment sent to the parties on 5 June 2023 (subsequently confirmed, with some variation to the Reasons, on reconsideration) the Tribunal found in favour of the Respondent in respect of all of the Claimant’s complaints.[2]The Respondent applied for a costs order against the Claimant under Rule 76 and/or a wasted costs order against her representative, Mr Shepherd, under Rule 80. It contends that the Claimant (or Mr Shepherd, as appropriate):a. Pursued her claim of victimisation without belief in causation;b. Pursued her claim of unfair dismissal based on an unreasonable interpretation; andc. Conducted the proceedings unreasonably in failing to negotiate, or otherwise negotiating unreasonably, including i) not accepting a reasonable offer, or making reasonable counter offers; ii) breaching the Without Prejudice Rule, and iii) unnecessarily copying in communications to the Tribunal.[3]The Respondent requested that the application be determined on paper and, in its response, the Claimant did not resist that. We are satisfied it is appropriate to determine the application on paper, and have done so based on the written submissions of the parties.
The law
[4]Rule 76(1) provides (insofar as relevant): A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that —(a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or(b) any claim or response had no reasonable prospect of success […][5]In other words, there is a three-stage process. First, we must ask ourselves whether the conduct falls within rule 76(1); if so, we must go on to determine whether it is appropriate to exercise our discretion in favour of awarding costs against the Claimant; and if so, we must quantify the order.[6]Rule 80 provides:(1) A Tribunal may make a wasted costs order against a representative in favour of any party (“the receiving party”) where that party has incurred costs— (a) as a result of any improper, unreasonable or negligent act or omission on the part of the representative; or (b) which, in the light of any such act or omission occurring after they were incurred, the Tribunal considers it unreasonable to expect the receiving party to pay. Costs so incurred are described as “wasted costs”.(2) “Representative” means a party’s legal or other representative or any employee of such representative, but it does not include a representative who is not acting in pursuit of profit with regard to the proceedings. A person acting on a contingency or conditional fee arrangement is considered to be acting in pursuit of profit.(3) A wasted costs order may be made in favour of a party whether or not that party is legally represented and may also be made in favour of a representative’s own client. A wasted costs order may not be made against a representative where that representative is representing a party in his or her capacity as an employee of that party.[7]Again, this is essentially a three-stage process. First, has there been conduct within rule 80(1); if so, we must go on to determine whether it is appropriate to exercise our discretion in favour of making a wasted costs order; and if so, we must quantify the order. There is a separate question arising here, being whether Mr Shepherd is a “representative” as defined in Rule 80(2). Discussion Stage 1: Conduct engaging Rule 76(1) and/or Rule 80(1)?
Discussion
[8]We deal with each of the Respondent’s points in turn.[9]First, whether the Claimant pursued the victimisation claim without belief in causation. The victimisation claim failed because we found on the facts that there was no causal link between the alleged detriments and the alleged protected acts. The alleged detriments relied upon for the victimisation claim were(1) the Claimant being furloughed,(2) Miss Z being persuaded to make a false allegation against the Claimant, and(3) the Claimant’s dismissal.[10]It is quite right to say that the first two points were barely pursued at the Final Hearing. The evidence of Mr G, Miss I and Mr J that furlough was a decision made based on business need was essentially unchallenged in crossexamination, and it was not put to any of the Respondent’s witnesses that Miss Z had been persuaded to make a false allegation. As regards the third point, it was Ms C’s evidence that there was some link between the events at the Xmas party / her reports to Miss I and Mr G on 2 December 2019 and her dismissal. We did not accept that evidence but it was not, in our judgement, an unreasonable belief on the part of Ms C.[11]Overall, we do not consider that the victimisation claim had no reasonable prospects of success, nor do we consider it was (in respect of the dismissal) unreasonably pursued. The Claimant, however, ought to have realised that the allegations in respect of furlough and Miss Z were without support, had she gone about matters sensibly.[12]Second, whether the Claimant pursued the unfair dismissal claim based on an unreasonable interpretation. The Respondent points to our finding in paragraph 53 of the Judgment that the Claimant “cannot have failed to appreciate” that Mr G and Miss Y’s relationship was a topic of the meeting she attended with Miss D. The Respondent says that this demonstrates the Claimant therefore either knowingly pursued a case on a false basis, or otherwise acted unreasonably in wilfully misunderstanding the allegations against her.[13]It is fair to say that the Claimant’s evidence around the dismissal was somewhat confusing. We do agree that it was not reasonable for the Claimant to seek to portray that Mr G and Miss Y’s relationship was not a topic of the meeting she attended with Miss D (as is reflected in our findings in the Judgment). It was also not reasonable to maintain that she did not understand the allegations against her, which were clearly set out. However, the real core of the unfair dismissal claim was the question of whether the Respondent could fairly conclude that Claimant did breach confidentiality in a conversation with Miss Z. The Claimant’s consistent position was that she did not breach confidentiality. If better advised, the Claimant may have appreciated that the hurdle was a high one to succeed, because she would have to show that no reasonable employer could have concluded that she did breach confidentiality. However, we do not think the claim had no reasonable prospects of success. We do though accept that, in the ways identified above, some arguments forming part of the claim were unreasonable pursued.[14]Third, not accepting reasonable offers or making reasonable counter-offers. It is submitted that, when considering these offers, the Claimant did not meaningfully engage, and did not ever adequately factor in the difficulties in respect of prospects for all of her claims. However, it is evident from the correspondence that the Respondent was not either genuinely entertaining the prospect of the Claimant succeeding in any of her allegations, and the offers were pitched at a level that reflected no more than the costs the Respondent would have to incur to defend the claims. We do not regard the Claimant (or her representative’s) conduct in these negotiations as meeting the requirements of Rule 76(1) or 80(1).[15]Fourth, breaching the without prejudice rule. The Respondent has provided evidence that shows the Claimant and her representative submitting without prejudice materials to the Tribunal after being warned not to (and having had the rule explained to them). We accept this was unreasonable in the conduct of the proceedings and both Rule 76(1) and 80(1) are met.[16]Fifth, unnecessarily copying the Tribunal on routine correspondence. In this regard, it is not unusual for parties who are unfamiliar with the Tribunal process to find it difficult to draw the line between when the Tribunal should be copied and when not. We did not see anything that we would class as being unreasonable in this case.[17]In conclusion then at the first stage, the following meet the requirements of Rule 76(1) and/or Rule 80(1):a. Pursuit of the allegations in respect of furlough and Miss Z as part of the victimisation claim (but not the pursuit of the victimisation claim as a whole).b. Pursuit of the assertions that(i) Mr G and Miss Y’s relationship was not a topic discussed at the meeting with Miss D and(ii) the Claimant did not understand the allegations being made against her under the unfair dismissal claim (but not the pursuit of the unfair dismissal claim as a whole).c. Breaches of the without prejudice rule by copying such materials to the Tribunal. Stage 2: discretion[18]In deciding whether to exercise our discretion, we acknowledge that the making of costs orders in the Employment Tribunal is an exception rather than the rule (Yerrakalva v Barnsley Metropolitan Borough Council and anor [2012] ICR 420, CA). As set out by Mummery LJ in his judgment in Yerrakalva, the vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had.[19]We have identified the unreasonable conduct under stage 1. We next consider the effects.[20]In respect of the pursuit of the allegations in respect of furlough and Miss Z as part of the victimisation claim, the Respondent says that, had these points not been pursued, it would not have been required to call evidence in respect of furlough, or to cross-examine more broadly in respect of the victimisation complaints. However, in our judgement, this did not materially affect the conduct of the case. There was very little evidence on furlough. It is possible that the cross-examination of the claimant could have been shorter, but it is unlikely that a great deal of Tribunal time could have been saved.[21]In respect of the pursuit of the assertions that Mr G and Miss Y’s relationship was not a topic discussed at the meeting with Miss D and that the Claimant did not understand the allegations being made against her under the unfair dismissal claim, again we accept that this led to the cross-examination of the Claimant being lengthened. However, we do not agree that this likely added two days to the final hearing, as asserted by the Respondent (albeit in the context of saying that the victimisation and unfair dismissal claims were without reasonable prospects in their entirety – a submission we have rejected). Some time may have been saved had the points not been taken (including in counsel’s preparation for cross-examination), but in our judgement this was unlikely to be material in the overall context.[22]In respect of the breach of the without prejudice rule, there was no real effect on the final hearing, as the without prejudice material did not come to the attention of the Tribunal panel.[23]Overall, we regard the effects of the Claimant’s unreasonable conduct to be very limited. We also consider the following factors to be relevant to the exercise of discretion in this case:a. Mr Shepherd is not legally trained, so a limited degree of leeway should be afforded to him and to the Claimant in respect of understanding of legal principles and processes.b. The nature of the correspondence, including letters sent by the Respondent’s representatives, only served to inflame relations rather than encourage co-operation.c. Notwithstanding the limited unreasonable behaviours identified, this was a case where there were considerable factual disputes that needed to be resolved – the behaviours did not impair the ability of the Tribunal to do so fairly and justly.[24]Accordingly, in our judgement weighing the factors identified above, it would not be just to exercise our discretion to make an order under either Rule 76 or Rule 80 in this case. We decline to do so, and therefore refuse the Respondent’s application.
Discussion
[1]The claimant’s application for reconsideration was made late, though a request for an extension of time was made in time. I am satisfied that it is in the interests of justice for the application to be determined on its merits and therefore extend time.[2]The first stage in dealing with a reconsideration request requires an Employment Judge (specifically, where practicable, the Judge who chaired the Tribunal panel) to consider whether or not there is reasonable prospect of the original decision being varied or revoked. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked, Rule 72 of the Employment Tribunals Rules of Procedure requires that the application be refused. Only if otherwise does the application proceed to be considered by the full Tribunal panel.[3]I have considered the application and consider there is no reasonable prospect of the original decision being varied or revoked. This is for the following reasons.[4]The application first seeks to challenge the Tribunal’s factual finding that “there is no evidence whatsoever to support a finding that Miss Z was pressurized into making this statement by anyone. We found it was not procured in that way.” (Judgment, paragraph 51) The application does not, however, point to any evidence that was before the Tribunal that undermines this finding. It presents arguments based on circumstances that the Tribunal already considered.[5]The application then seeks to elide the discussions at the two disciplinary meetings (that of Miss D and that of Ms C). However, having carefully considered the points raised, I see no reasonable prospect of the factual findings at paragraphs 52-54 of the Judgment, which underlie the decision on unfair dismissal at paragraphs 60-68 of the Judgment, being varied. Dealing with the key themes:a. The application suggests that the audio recording of the Miss D meeting makes evident that Mr G and Miss Y had not in fact been discussed at that meeting. However, the Tribunal found that was not the case, based on a detailed consideration of the transcript together with the official notes taken of the meeting which assist in filling inaudible gaps. Indeed, paragraph (i) of the application concedes this, when it refers to the discussion of the two interpretations of the Facebook posts - one of those interpretations being that they were a reference to Miss Y and her relationship with Mr G.b. The allegation around the dismissal being linked to the Facebook posts is not coherent – it has always been the case that the stated reason for dismissal was that the claimant discussed Miss D’s disciplinary meeting (at which the Facebook posts were undoubtedly discussed, as were their two possible interpretations) with Miss Z, as the Tribunal ultimately found was the true reason.c. The Tribunal rejected, based on the evidence, the suggestion that the allegations were not made clear to the claimant during the disciplinary process, and nothing is presented in the application that can reasonably be thought to change that view.d. As to the point made in paragraph (l) of the application, Judgment paragraph 54 includes a finding that the decision was made collectively.[6]Looking at the application in its totality, it appears to be an attempt to re-run points that were already made at the Final Hearing, were considered by the Tribunal, and are already addressed in the Judgment.[7]For the above reasons the claimant’s application is refused.[8]This judgment has been produced in anonymized form pending resolution of the Respondent’s application for a permanent anonymity order under Rule 50.