Ms D Hickey v My Space Housing Solutions: 2402550/2020 and 2408762/2020

EMPLOYMENT TRIBUNALS

Case No 2402550/2020, 2408762/2020

Between

Ms D HickeyClaimant

My Space Housing SolutionsRespondent

Before

Employment Judge Sharkett

Ms Stanley (instructed by Counsel) for claimant

Date 6 December 2022

JUDGMENT

[1]The claimant’s claim of discrimination on the protected characteristic of race is dismissed upon withdrawal by the claimant. JUDGMENT

[2]

(a) The claimant has permission to amend her claim and rely on Allegation 16 of the Scott Schedule

(b) BY consent it is agreed that Allegation 17 of the Scott Schedule is not an amendment but rather further detail of facts already pleaded and can be relied upon by the claimant.

REASONS

[1]This Preliminary Hearing was to consider an application by the claimant to amend her claim. The respondent also sought to have claims stuck out on the basis that they were out of time and/or had no reasonable or little prospects of success. At the previous preliminary hearing Employment Judge Feeney had ordered the respondent to make an application in writing if it wished to apply for a strike out/ deposit order. No such application had been made. In respect of the time issue after hearing submissions from both parties, I concluded that this was a matter that would be more appropriately determined at the final hearing given that the claimant relied on a course of conduct in pursuing her claims.

[2]Due to technical difficulties experienced both with accessing the bundles, and with sound issues that arose late in the afternoon of 12 January, it was not possible to conclude the claimant’s application to amend her claim and it has reconvened, part heard, today 5 February 2021. Both parties were given an opportunity to repeat their submissions to ensure that neither party was disadvantaged by the technical difficulties experienced on 12 January 2021. Submissions

[3]It is the respondent’s case that the claimant has introduced four new allegations in her Scott Schedule. The claimant disputes this on the basis that the facts of the same are clearly pleaded in the ET1 and are a matter of relabelling only.

[4]During the course of the hearing on 12 January 2021, the Claimant indicated that she no longer relied on Allegation 19 and withdrew the same. Mr Melia conceded that Allegation 17 which refers to the claimant dismissal, is a matter of relabelling only as the fact of the dismissal is pleaded in the ET1. Consequently the application to amend now relates to only two Allegations, they being Allegation 10 and Allegation 16 Allegation 10

[5]This is an allegation that the claimant regularly (from 28 October 2019 and ongoing), had to take telephone calls from outside the building or alternatively in her car so that she could hear properly. The application sought is to include a claim of a failure to make a reasonable adjustment and discrimination arising from disability.

[6]Ms Stanley submits that the facts of this claim are already pleaded and it is simply a matter a new legal label, not a material amendment.

[7]It is the respondent’s case that this is an entirely new claim that is not pleaded in the ET1. The respondent argues that the reference to this fact is at paragraph 23 of the ET1 in which the claimant refers only to taking the calls in her car for privacy reasons. Allegation 16

[9]This Allegation is that the claimant’s grievance meeting carried on for six hours with only one brief adjournment which had to be asked for by the claimant’s representative. The application is to include a claim of a failure to make a reasonable adjustment, discrimination arising from disability and a claim of harassment. Ms Stanley submits that the facts of this allegation are pleaded and that this is simply a relabelling exercise.

[10]Whilst the respondent accepts that the facts are mentioned in the ET1 Mr Melia submits that they are included only to set out the factual background of what happened.

[11]In respect of both allegations Mr Melia submits that the claimant has been legally represented from the outset and these are not new facts that have arisen since the claimant first submitted her claim. He submits that the respondent will be significantly prejudiced if the Tribunal allow the amendments. In respect of Allegation 10 which dates back to October 2019, Mr Melia submits that the claimant never raised this as a grievance or issue whilst employed, and the respondent would have difficulty obtaining witnesses evidence from the managers involved at that time, five of which are not now employed by the respondent. In respect of Allegation 16, Mr Melia submits that an external contractor carried out the grievance hearing and that this individual may not be willing to give witness evidence. In addition he submits that obtaining this evidence and requiring the individual to attend to give oral evidence would result in significant expense to the respondent.

[12]Mr Melia submits that by comparison the claimant will not be prejudiced if the Tribunal refuse the application to amend her claim to include these two additional Allegations as she has her other claims that she can still pursue.

[13]Ms Stanley submits that the respondent has always been aware of the facts and matters arising out of Allegation 10 and 16 and, that both Allegations if allowed to proceed have good prospects of success. She submits that to refuse the amendment would prejudice the claimant because she would be denied the right to bring her claims.

The Law

[14]In the case of Selkent Bus Company Limited -v- Moore

1996 ICR 836

, the Employment Appeal Tribunal endorsed the key principle that when exercising its discretion in an amendment application, Tribunals must have regard to all the circumstances and in particular, any injustice or hardship which would result from the amendment or refusal to make it.

[15]In that case, Mr Justice Mummery outlined that a Tribunal will need to consider: -(i) The nature of the amendment: is it minor or substantial;

(ii) The applicability of time limits – if a new claim is proposed by way of amendment, whether the new course of action is in time or whether time limits should be extended;

(iii) The timing and manner of the application.

[16]Guidance Note one of the Presidential Guidance on general case management, at paragraph 12 states “if the claimant seeks to bring a new claim, the Tribunal must consider whether the new claim is in time”.

[17]However, at paragraph 11.2 Tribunals are reminded that even if no new facts are pleaded, the Tribunal must balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it.

[18]Before any time limit issues are considered, it is incumbent on the Tribunal to consider the nature of the proposed amendment.

[19]In the case of Abercrombie and Others -v- Aga Range Master Limited

2013 IRLR 953

the Court of Appeal determined that when considering a new allegation amendment, Tribunals should focus on: “not on questions of formal classification but on the extent to which the new pleading is likely to involve substantially different areas of enquiry than the old: the greater the difference between the factual and legal issues raised by the new claim and by the old, the less likely it is that it will be permitted”. Discussion and Conclusion

[20]In respect of both Allegations I have reminded myself that the core test in either allowing or refusing the application is the balance of injustice or hardship between the parties.

[21]Ms Stanley relies on paragraph 23 of the ET1 to show that the facts of Allegation 10 are already pleaded and that this is not a material amendment to the claim. In reaching my conclusion that this is a new claim I have had regard to both paragraphs 22 and 23 of the ET1 to ensure that I have not missed the context in which the fact of the claimant going outside to make calls has been pleaded. Having established that this is a new claim because the ET1 clearly refers to a desire for privacy as the reason for the claimant going outside to take calls, I have regard to the timing and manner of the application, the prospects of success or defence and any practical problems in responding to the new claim should it be allowed.

[22]I do not accept Mr Melia’s submission that as the claimant has other claims to pursue she would not be prejudiced if the application was refused. However, I note that the complaint raised by the claimant in Allegation 10 dates back to October 2019, and her first claim was submitted on 27 March 2020. The claimant then submitted a further claim form on 3 July 2020 in which she raises the facts relating to Allegation 16. The claimant was legally represented when both claims were submitted and both claims relate to the ongoing complaints of the claimant in relation to her treatment and dismissal, which are referenced again in her second claim form. An application to amend the first claim form was not made when the second claim was issued and I have not been told of any reason why that was the case. The application to amend the claim to include this Allegation was not made until November 2020. Mr Melia argues that the respondent would have difficulty obtaining witness evidence in respect of this Allegation because this was not a matter that was raised as part of the claimant’s grievance and the respondent is not aware that it was ever raised as an issue at all. In addition he explained that five of the managers are apparently no longer with the respondent and it would be difficult to identify who it would be able to obtain evidence from. I accept that this poses a practical problem for the respondent who would have difficulty responding to the claim if it is unable to have access to those who managed the claimant at the time. I accept that is unlikely that the respondent would have the ability to obtain relevant witness evidence given the circumstances described by Mr Melia. Having considered the submissions of both parties and considered the circumstances in the round, I find the balance of injustice and hardship in respect of this Allegation falls more heavily on the respondent and for this reason, the application in respect of Allegation 10 is refused.

[23]In respect of Allegation 16 Ms Stanley submits that the facts of the grievance meeting and the duration of the same are pleaded at paragraph 14 of the second ET1. Mr Melia accepts that the second ET1 references the grievance meeting but submits that this just sets out the factual background and is not a fact relied on. I find that whilst it might not be clear from paragraph 14 that the claimant complains of a failure to make a reasonable adjustment, it does clearly set out the fact that the claimant is complaining about the manner in which the hearing was conducted and the distress she experienced because of it. It is also clear that her distress and complaint relates to both the lack of breaks and the references to her disability. These are facts that the respondent has known of since the second claim was issued and I do not accept Mr Melia’s submission that the respondent would be prejudiced if the amendment was allowed because the grievance hearing was conducted by an external consultant. I have not been told that the respondent is unable to contact the external consultant and in the event that the person concerned is unwilling to attend the Tribunal to give witness evidence then the Respondent is at liberty to make the appropriate application to order their attendance. I find that all three of the claims pursued by the claimant arising out of the facts pleaded in paragraph 14 are arguable and that in these circumstances the injustice and hardship to the claimant in refusing the amendment would be far outweighed by any hardship to the respondent in granting it not least of which because the respondent has been aware of the facts since the claim was submitted. The application to amend the claim to include Allegation 16 is allowed.

LAW

[33]In some cases the ground, or the reason, for the treatment complained of is inherent in the act itself. If an owner of premises puts up a sign saying "no blacks admitted", race is, necessarily, the ground on which (or the reason why) a black person is excluded. James v Eastleigh is a case of this kind. There is a superficial complication, in that the rule which was claimed to be unlawful – namely that pensioners were entitled to free entry to the Council's swimming-pools – was not explicitly discriminatory. But it nevertheless necessarily discriminated against men because men and women had different pensionable ages: the rule could entirely accurately have been stated as "free entry for women at 60 and men at 65". The Council was therefore applying a criterion which was of its nature discriminatory: it was, as Lord Goff put it (at p. 772 C-D), "gender based".[5] In cases of this kind what was going on inside the head of the putative discriminator – whether described as his intention, his motive, his reason or his purpose – will be irrelevant. The "ground" of his action being inherent in the act itself, no further inquiry is needed. It follows that, as the majority in James v Eastleigh decided, a respondent who has treated a claimant less favourably on the grounds of his or her sex or race cannot escape liability because he had a benign motive.

[34]But that is not the only kind of case. In other cases – of which Nagarajan is an example - the act complained of is not in itself discriminatory but is rendered so by a discriminatory motivation, i.e. by the "mental processes" (whether conscious or unconscious) which led the putative discriminator to do the act. Establishing what those processes were is not always an easy inquiry, but tribunals are trusted to be able to draw appropriate inferences from the conduct of the putative discriminator and the surrounding circumstances (with the assistance where necessary of the burden of proof provisions). Even in such a case, however, it is important to bear in mind that the subject of the inquiry is the ground of, or reason for, the putative discriminator's action, not his motive: just as much as in the kind of case considered in James v Eastleigh, a benign motive is irrelevant. This is the point being made in the second paragraph of the passage which we have quoted from the speech of Lord Nicholls in Nagarajan (see para. 29 above). The distinctions involved may seem subtle, but they are real, as the example given by Lord Nicholls at the end of that paragraph makes clear. … 37. …although (as Lord Goff points out) the test may be applied equally to both the "criterion" and the "mental processes" type of case, its real value is in the latter: if the discriminator would not have done the act complained of but for the claimant's sex (or race), it does not matter whether you describe the mental process involved as his intention, his motive, his reason, his purpose or anything else – all that matter is that the proscribed factor operated on his mind. This is therefore a useful gloss on the statutory test; but it was propounded in order to make a particular point, and we do not believe that Lord Goff intended for a moment that it should be used as an all-purpose substitute for the statutory language. Indeed if it were, there would plainly be cases in which it was misleading. The fact that a claimant's sex or race is a part of the circumstances in which the treatment complained of occurred, or of the sequence of events leading up to it, does not necessarily mean that it formed part of the ground, or reason, for that treatment. Harassment related to sex or disability 21. Protection against harassment is provided for at s.26 of the Equality Act 2010:(1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. … (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect. A failure in the duty to make reasonable adjustments 22. The relevant statutory provisions, in respect of a failure to make reasonable adjustments complaint are as follows: 20. Duty to make adjustments (1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.

(2) The duty comprises the following three requirements.

(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. ... 21. Failure to comply with duty (1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments. (2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person. Victimisation 23. Protection from victimisation is contained at s.27 of the Equality Act 2010. It provides: (1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act. (2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act. Burden of Proof under the Equality Act 2010 24. We reminded ourselves of the burden of proof in discrimination cases, with reference to section 136 of the Equality Act 2010: (1) This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. 25. Lord Justice Mummery (with which Laws and Maurice Kay LJJ agreed) in Madarassy v Nomura International plc

[2007] ICR 867

, at paragraphs 56-58, provided a summary of the principles that apply when considering the burden of proof in Equality Act Claims: "56. The court in Igen v Wong… expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the tribunal could conclude that the respondent "could have" committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal "could conclude" that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination. 57. "Could… conclude" in section 63A (2) must mean that "a reasonable tribunal could properly conclude" from all the evidence before it. This would include evidence adduced by the complainant in support of the allegations of sex discrimination, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint. Subject only to the statutory "absence of an adequate explanation" at this stage (which I shall discuss later), the tribunal would need to consider all the evidence relevant to the discrimination complaint; for example, evidence as to whether the act complained of occurred at all; evidence as to the actual comparators relied on by the complainant to prove less favourable treatment; evidence as to whether the comparisons being made by the complainant were of like with like as required by section 5(3) of the 1975 Act; and available evidence of the reasons for the differential treatment. 58. The absence of an adequate explanation for differential treatment of the complainant is not, however, relevant to whether there is a prima facie case of discrimination by the respondent. The absence of an adequate explanation only becomes relevant if a prima facie case is proved by the complainant. The consideration of the tribunal then moves to the second stage. The burden is on the respondent to prove that he has not committed an act of unlawful discrimination. He may prove this by an adequate nondiscriminatory explanation of the treatment of the complainant. If he does not, the tribunal must uphold the discrimination claim." (emphasis added) 26. Mummery LJ also explained further how evidence adduced by the employer might be relevant, noting that it could even relate to the reason for any less favourable treatment (paras. 71-72): "71. Section 63A (2) does not expressly or impliedly prevent the tribunal at the first stage from hearing, accepting or drawing inferences from evidence adduced by the respondent disputing and rebutting the complainant's evidence of discrimination. The respondent may adduce evidence at the first stage to show that the acts which are alleged to be discriminatory never happened; or that, if they did, they were not less favourable treatment of the complainant; or that the comparators chosen by the complainant or the situations with which comparisons are made are not truly like the complainant or the situation of the complainant; or that, even if there has been less favourable treatment of the complainant, it was not on the ground of her sex or pregnancy. 72. Such evidence from the respondent could, if accepted by the tribunal, be relevant as showing that, contrary to the complainant's allegations of discrimination, there is nothing in the evidence from which the tribunal could properly infer a prima facie case of discrimination on the proscribed ground…." 27. Lord Justice Mummery also pointed out that it will often be appropriate for the tribunal to go straight to the second stage. An example is where the employer is asserting that whether the burden at the first stage has been discharged or not, he has a non-discriminatory explanation for the alleged discrimination. A claimant is not prejudiced by that approach since it is effectively assumed in his favour that the burden at the first stage has been discharged. 28. To summarise, the claimant must prove, on the balance of probabilities, facts from which a Tribunal could conclude, in the absence of an adequate explanation that the respondent had discriminated against him. If the claimant succeeds in doing this, then the onus will be on the respondent to prove that it did not commit the act. This is known as the shifting burden of proof. Once the claimant has established a prima facie case (which will require the Tribunal to hear evidence from the claimant and the respondent, to see what proper inferences may be drawn), the burden of proof shifts to the respondent to disprove the allegations. This will require consideration of the subjective reasons that caused the employer to act as he did. The respondent will have to show a non-discriminatory reason for the difference in treatment. Detriment on the grounds of a Protected Disclosure 29. The relevant statutory provisions of the Employment Rights Act 1996 in relation to this category of claims brought by the claimant are s.43B, s.47B and s.48 of the Employment Rights Act 1996 (‘ERA’). Section 43B ERA sets out what is meant by a qualifying disclosure: 43B Disclosures qualifying for protection. (1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, [F2 is made in the public interest and ] tends to show one or more of the following— (a) that a criminal offence has been committed, is being committed or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, (d) that the health or safety of any individual has been, is being or is likely to be endangered, (e) that the environment has been, is being or is likely to be damaged, or (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed. 30. Section 47B(1) ERA explains that ‘[a] worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure’. 31. Whilst the burden of proof in such cases is provided for by s.48(2) ERA. 32. In order to bring a claim under section 47B, the worker must have suffered a detriment. It is now well established that the concept of detriment is very broad and must be judged from the viewpoint of the worker (See Jesudason v Alder Hay Children’s NHS Foundation Trust

[2020] EWCA Civ 73

). There is a detriment if a reasonable employee might consider the relevant treatment to constitute a detriment. The concept is well established in discrimination law and it has the same meaning in whistle-blowing cases. In Derbyshire v St. Helens MBC

[2007] UKHL 16

. At paras 67-68 Lord Neuberger described the position thus: "67. … In that connection, Brightman LJ said in Ministry of Defence v Jeremiah

[1980] ICR 13

at 31A that "a detriment exists if a reasonable worker would or might take the view that the [treatment] was in all the circumstances to his detriment". 68. That observation was cited with apparent approval by Lord Hoffmann in Khan

[2001] ICR 1065

, para 53. More recently it has been cited with approved in your Lordships' House in Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

. At para 35, my noble and learned friend, Lord Hope of Craighead, after referring to the observation and describing the test as being one of "materiality", also said that an "unjustified sense of grievance cannot amount to 'detriment'". In the same case, at para 105, Lord Scott of Foscote, after quoting Brightman LJ's observation, added: "If the victim's opinion that the treatment was to his or her detriment is a reasonable one to hold, that ought, in my opinion, to suffice"." 33. There is a requirement that there is a causal link between the protected disclosure and the detriment in question. Section 47B requires that the act should be "on the ground that" the worker has made the protected disclosure. The leading authority is the decision of the Court of Appeal in Manchester NHS Trust v Fecitt

[2011] EWCA 1190

, where Elias LJ considered the meaning of this phrase: "45. In my judgment, the better view is that section 47B will be infringed if the protected disclosure materially influences (in the sense of being more than a trivial influence) the employer's treatment of the whistle-blower." CLOSING SUBMISSIONS 34. Mr Boyd provide the tribunal with written submissions in the form of a skeleton argument. And the tribunal heard closing submissions form Mr Boyd on behalf of the respondent and form the claimant. Although these are not repeated here, they have all been considered carefully in reaching this decision. FINDINGS OF FACT We make the following findings of fact based on the balance of probability from the evidence we have read, seen, and heard. Where there is reference to certain aspects of the evidence that have assisted us in making our findings of fact this is not indicative that no other evidence has been considered. Our findings were based on all of the evidence and these are merely indicators of some of the evidence considered in order to try to assist the parties understand why we made the findings that we did. We do not make findings in relation to all matters in dispute but only on matters that we consider relevant to deciding on the issues currently before us. GENERAL FINDINGS

FINDINGS OF FACT

[35]The respondent is a Registered Provider of social housing and provides support to vulnerable individuals with support needs. As such the respondent is regulated by the Regulator of Social Housing and are subject to the Regulatory Standards.

[36]When a Registered Provider reaches the threshold of holding 1000 units, it becomes subject to an inspection called an In-Depth Assessment.

[37]Gill Cook approached the claimant in February 2019 with a view to the claimant joining the respondent.

[38]On 27 February 2019, the claimant met with Mr Goodson, Mr Lynch, Mr Qureshi, and Mr O’Rourke to discuss the newly created role of Governance Manager for the respondent. Following this meeting, and having completed some written tasks, the claimant was invited to complete an application form for the role of Governance Manager. The claimant, in this application form, declared that she had a disability, namely that she was deaf. The claimant was sent a draft job description for the role (see p.250).

[39]The claimant completed the application form and sent it to the respondent on 26 March 2019.

[40]On 06 April 2019, the respondent emailed the claimant and explained that the Board of Trustees wanted to appoint the claimant to the role of Governance Manager, but that they would want her to focus solely on the respondent’s business and that she would not be able to complete any work for the claimant’s training company (see claimant’s witness statement, at paragraph 29).

[41]On 24 April 2019, the claimant wrote to the respondent’s Board of Trustees concerning the requirement for the claimant to stop completing work for her training company. The claimant sought to secure agreement with the Board to allow her to take up appointment whilst maintaining a role in her company. She put forward three options for the board to consider (see pp253-254).

[42]On around 28 May 2019, the respondent and the claimant agreed that the claimant would not continue to provide work for her training company. On 14 June 2019, the claimant was sent a letter of appointment (see p.255). The claimant was also provided with a statement of her particulars of employment (see pp.259-265). As part of this contract, and in line with that agreed between the respondent and the claimant, the claimant was subject to restrictive covenants in relation to undertaking other work during her employment (see p.260). The clause read:

[43]The claimant commenced work with the respondent on 29 July 2019.

[44]The respondent did not operate a ‘boys club’. This is an assertion made by the claimant. However, there simply was not the evidence to support such a finding. To the contrary, the claimant was appointed to the role of Governance Manager, and alternative roles considered for her when the role of Governance Manager was being made redundant. These decisions were all adopted in full knowledge of the claimant’s sex. Further, Ms Alston was a member of the Board of Trustees, and there was no evidence of detrimental treatment of her due to sex. To the contrary, Ms Alston played an active role on the Board of Trustees, including meeting with the Regulator (one of the claimant’s allegations was that she was not permitted to meet the Regulator, which she highlighted as support for the ‘boys club’). Amongst other evidence before the tribunal, these matters supported the finding we made in this regard that no such boys club existed in this case.

[45]In advance of starting employment with the respondent, the claimant was invited to meet with the Board of Trustees at the Board Meeting scheduled for 28 June 2019. The claimant was invited to this meeting as an introduction to the company. She would only attend the beginning of that meeting but would not remain for the board meeting discussions.

[46]The claimant raised with Mr Goodson in advance of that meeting whether there was a hearing loop facility in the board room. There was not. The claimant offered to bring, and did bring, her own hearing loop.

[47]On attending the meeting, the claimant set up her hearing loop on the table in the Board Room, and explained to those present that she was deaf, and that the hearing loop was a hearing aid. The claimant provided a humorous example to the group of an occasion where she had left the hearing loop in one room whilst she had left to go to the toilet but was still able to hear the conversation taking place in that other room. The claimant did this jokingly to help build rapport in the room, whilst also demonstrating the range of the equipment. The claimant likely also explained that the equipment was not capable of recording discussions.

[48]The meeting, insofar as the claimant’s attendance is concerned, was lighthearted throughout.

[49]When the time came for the claimant to leave the meeting, and when the claimant was packing away her belongings, Mr McCready made a joke about the claimant’s hearing loop, and more likely than not, referred to it in the terms of a spy pod.

[50]The claimant did not react to this comment in a negative way, and this was her own evidence that she gave under cross-examination.

[51]The claimant did not raise a complaint about this issue at the time. And, even in light of this comment, she then accepted the offer of appointment.

[52]The claimant under cross-examination gave evidence that she went back to her previous employer to ask whether she could remain employed there and that she discussed with a trusted friend whether she should ‘continue to work there or not’, in light of this comment. However, we as a tribunal find that on balance this probably did not happen. The reason why we found this is that the claimant’s witness statement, which is extremely detailed on important matters, is quiet on this specific matter. Paragraph 64 of the claimant’s witness statement appears to be the most logical place where this would have been explained, had this happened. Further, there is no evidence produced in terms of discussions with the claimant’s previous employer, nor with raising this matter with her trusted friend anywhere in the bundle.

[53]Given our findings above, we conclude that at the time of this matter the claimant herself did not perceive this comment as being a detriment, either for the purposes of establishing less favourable treatment or unwanted conduct. And further, it would be unreasonable to consider this as such given the circumstances surrounding the comment. The comment itself was a natural extension to the discussions that were taking place, where the claimant, whether she used the term spy herself or not is irrelevant, described a situation where discussions could be heard without her being in the room. The comment made by Mr McCready was clearly just continuing that theme of discussion that had been led by the claimant.

[54]The tribunal is not satisfied that the claimant has been subject to either less favourable treatment because of her disability, nor unwanted conduct related to her disability that had the effect or purpose of creating those matters set out in section 26 of the Equality Act 2010.

[55]The allegations of direct disability discrimination and harassment related to disability insofar as they relate to Item 1 of the Scott Schedule do not succeed and are dismissed.

[56]As part of the claimant’s role, she was responsible for maintaining a register of interests and gifts and hospitality for board members and staff. As such, the claimant created a ‘Declarations of Interest’ form, to be used by those involved with the respondent.

[57]The form was discussed at the Board Meeting of 15 August 2020.

[58]Mr Melia, at that time, was in the temporary role of Chair of the Board of Trustees. As part of his role, he had to ensure that documents were unambiguous and achieved what they intended to achieve.

[59]The form produced by the claimant was an extensive form, which led Mr Melia to querying why there were so many questions.

[60]Mr Melia often raises queries in Board Meeting where there is a question of clarity. This was his role, and we accept the evidence of the respondent witnesses that this is what he did and had done so on previous occasions where a document required some clarification. His questioning of matters that lacked clarity is consistent with the factual pleading relating to this Item.

[61]The claimant was required to clarify the meaning of the words ‘significant’ and ‘material’. This was because Mr Melia considered that these two terms lacked clarity and needed to be defined.

[62]The claimant updated the form and sent it to members of the Board of Trustees at 13.30 on 29 August 2019 (see p.324). Mr Qureshi at 13.32 on that same day asked Board members to forward their forms to him, and he would forward them to the claimant (p.325). Mr Melia completed the form and sent it to Mr Qureshi as instructed (p.327).

[63]The treatment complained of by the claimant in relation to this matter is that Mr Melia was deliberately obstructive and difficult in complying with her reasonable instruction to make appropriate declarations of interest, and that this was through Mr Melia requiring the claimant to provide definitions of the terms ‘significant’ and ‘material’. And through the tone adopted.

[64]As a matter of principle, this conduct is in no way related to either sex or disability, and as such cannot support a claim of harassment related to either sex or disability. The harassment claims are therefore dismissed.

[65]This tribunal concludes that it would be unreasonable to view this treatment as reaching the level of detriment, for the purpose of establishing less favourable treatment. The two terms in question are open to interpretation. It is difficult to envisage how requesting the claimant to define two central, yet ambiguous terms, in circumstances where it is part of the claimant’s role to ensure an adequate register of interests is maintained, reaches the level of being a detriment. In short, it does not.

[66]However, even if we are wrong on this, the claimant has not established any causal connection with either disability or sex. Interestingly, at paragraph 87 of the claimant’s witness statement she appears to explain that Mr Melia’s conduct was to do with a reluctance to disclose any interests, rather than this being because of sex or disability. And further, at paragraph 88 of the claimant’s witness statement she states that it was due to her having challenged Mr Melia’s use of disrespectful comments that ‘contributed to the reason he treated me unfavourably’. The claimant’s own evidence suggests that the treatment of her were for reasons other than her sex and/or disability.

[67]In these circumstances the claims pertaining to direct disability because of either disability or sex insofar as they relate to Item 2 of the Scott Schedule are not successful and are dismissed.

[68]In the claimant’s job description, as part of the role of Governance Manager the following is included:

[69]It was not the claimant’s role to interview for the position of chair of the Board of Trustees. The claimant’s role was to provide some assistance.

[70]As part of the appointment process, the claimant received the application forms and CV’s of those that applied for the role of chair. She was given the opportunity to make notes on the candidates. Nobody prevented her from presenting those notes.

[71]The claimant emailed (for complete email chain see pp268-273) Mr Qureshi on 12 August 2019 at 08.47:

[72]Mr Qureshi responded at 08.53, stating

[73]To which the claimant responded at 08.59:

[74]The claimant raised no complaint about this.

[75]There was no general practice with respect who made coffees or as to who greeted people on their arrival at the office premises. Although, this would likely be something by Jane Campbell, who was an office administrator. The office made use of a ‘wheel of brews’ for general use, which would be spun, and the person it landed on would make coffees for those in the office.

[76]On the first day of interviewing for the role of Chair, the claimant greeted candidates. And made them a drink. However, on a subsequent day, when Mr Manning attended, this was done by somebody else.

[77]As a matter of principle, this conduct is in no way related to either sex or disability, and as such cannot support a claim of harassment related to either sex or disability. The harassment claims are therefore dismissed.

[78]The claimant has not satisfied the tribunal that this was direct discrimination because of disability or sex. Not being involved in something that was not within her remit simply does not reach the level of being a detriment. There is a real issue with the way that this particular allegation is pleaded. The claimant brings it in terms of being ostracized from her senior management duties. Whereas the reality is that she was not ostracized. The tribunal was not satisfied that the claimant at the time viewed this as a detriment, nor would it be reasonable to do so in those circumstances.

[79]Again, even if we are wrong on this and this was to be considered a detriment, there is no evidence adduced that would satisfy the causal connection to either the claimant’s sex or disability.

[80]The claims of direct disability because of either disability or sex and the claims of harassment related to either sex or disability, insofar as they relate to Item 3 of the Scott Schedule, are not successful and are dismissed.

[81]The claimant took minutes for a senior managers’ meeting on 17 September 2019. On completing the minutes, the claimant emailed a copy of them to Mr Goodson and Gill Cook. A copy of the minutes was contained in the bundle at pages 294- 300.

[82]Mr Qureshi was not present in the meeting of 17 September 2019. However, a copy of the minutes was shared with him.

[83]Mr Goodson did not consider that the minutes accurately reflected the discussion that had taken place. Parts of the discussion, at least from his perspective, were missing from the minutes. Mr Goodson discussed what he perceived as inaccuracies with Mr Qureshi. This was the oral evidence of Mr Qureshi and is more likely than not to have happened given the meeting that then took place with the claimant and the respective roles that Mr Goodson and Mr Qureshi held within the company.

[84]Within the minutes, the claimant recorded the following that related to cash-flow/ the respondent’s financial position:

[85]Mr Qureshi considered this information to be inaccurate information and was concerned that this inaccurate information would be recorded in a document that would remain around for a very long time. Mr Qureshi gave this evidence (see para 67 of his witness statement), and the claimant explained under cross examination that she understood Mr Qureshi’s view to be that the respondent did not have a cash flow problem, but rather an issue in the payment of invoices. The claimant also explained that Mr Qureshi in this meeting was ‘adamant that what I had written down was not correct’.

[86]Mr Qureshi and Mr Goodson invited the claimant into a meeting in the Board Room after having reviewed the minutes. Mr Qureshi questioned the claimant as to the accuracy of the minutes, as he was seeking to ensure that they accurately portrayed the financial position of the company, which he had understood to have been discussed at the meeting.

[87]The discussion concerned the accuracy of the minutes and did not go beyond that. The tribunal was faced with, what was in essence, two conflicting accounts of what was said at this meeting. The claimant brought a case that she was not only interrogated as to the accuracy of the minutes that she produced but that she was also subject to accusations by Mr Goodson and Mr Qureshi of inputting false information in the minutes, spreading gossip and rumours and making threats to the respondent about ‘shopping them to the Regulator’. Whilst Mr Goodson and Mr Qureshi’s evidence were that the only discussion that took place in the meeting of 17 September 2019 concerned the accuracy of the minutes. We reached the finding that we did on the balance of probability. The tribunal on this matter considered the evidence of Mr Goodson and Mr Qureshi to be more reliable. In reaching this position the tribunal took account, amongst other things, of the accuracy of their evidence relative to the written documents compared to that of the claimant, whose evidence was subject to change more frequently. And further, the claimant, when raising several issues in her grievance on 08 December 2019 (see pp.394-396), which is very detailed as to what concerned her, does not raise this event. This led us to concluding that, on balance, Mr Goodson and Mr Qureshi were likely accurate on the content of this discussion.

[88]As a matter of principle, the conduct that makes up item 4 is in no way related to either sex or disability, and as such cannot support a claim of harassment related to either sex or disability. The harassment claims are therefore dismissed. However, even had the claim been presented as a direct discrimination complaint, because of either disability or sex, the allegation still would not have succeeded.

[89]It follows from our findings above that the reason behind Mr Qureshi questioning the claimant about the accuracy of her minutes on or around 17 September 2019 is because he considered the minutes to be inaccurate. And he reached this conclusion based on his knowledge and understanding of the financial position of the respondent and having discussed the minutes with Mr Goodson.

[90]Whether the approach adopted by Mr Qureshi is a good practice or not is not a matter for this tribunal. The tribunal must focus on the allegations that are before it. The tribunal concludes that the treatment that the claimant was subjected to on 17 September 2019 had no causal connection to either sex or disability or a protected disclosure, but rather were for reasons entirely disconnected from these.

[91]The claims brought under item 4 of the Scott Schedule are all dismissed.

[92]From the commencement of the claimant’s employment until the beginning of October 2019, the claimant would meet with Mr Goodson to update him on governance matters.

[93]Mr Goodson was the beneficiary of those meetings. The claimant did not need them, but Mr Goodson found them useful. This was the claimant’s evidence under cross examination.

[94]Mr Goodson did continue to meet with the claimant in October and November 2019. This is clear from the claimant’s witness statement at paragraph 148.

[95]There were occasions where either Mr Goodson or the claimant could not meet on a one-on-one basis. On some of these occasions there would be communication between the two’ However, on occasion there was not.

[96]The claimant throughout this period was attending at monthly Board Meetings, at which Mr Goodson was present, to update the Board of Trustees on governance issues.

[97]In October 2019, the respondent’s Operations Manager left its employ. This role was filled by Mr Goodson, which involved duties in addition to those that he already had. This took up a significant portion of Mr Goodson’s time.

[98]On a factual basis, the claimant has failed to establish that Mr Goodson simply stopped one-to-one meetings from September 2019. Meetings between the two did continue after this date, and therefore on a factual level this allegation does not succeed.

[99]However, putting that to one side. If the case had been brought on the occasional meeting having been cancelled for no reason, then the claim was still bound to fail, for the reasons described below.

[100]It is difficult to perceive how this would be a detriment for the purposes of either a victimisation complaint or detriment on the grounds of having made a protected disclosure. The claimant herself gave evidence that these meetings were for the benefit of Mr Goodson and not her. That by cancelling the meetings ‘he was cutting off his nose to spite his face’. And in circumstances where the claimant was attending Board Meetings and being given the opportunity to raise governance matters internally. In those circumstances, the claimant would not have satisfied the tribunal that this treatment reached the level of a detriment.

[101]In terms of the reasons behind occasional meetings being cancelled, the tribunal accepted the evidence of Mr Goodson on this matter. That meetings tend to be more frequent at the outset of employment whilst an individual settles into their role, but naturally become less frequent. And this was be read against the fact that the claimant herself did not raise any concerns about such meetings being cancelled.

[102]The reason behind some one-to-one meetings being cancelled was because weekly meetings were no longer deemed necessary. And further, Mr Goodson’s time had become stretched having taken on the additional role of Operations Manager. There was no connection to either a protected act for the purposes of a victimisation complaint or to a Public Interest Disclosure for the purposes of a detriment claim.

[103]The claims that relate to item 6 on the Scott schedule are dismissed.

[104]Neither the claimant nor Mr Melia were employed with a view to providing legal advice to the respondent.

[105]On 23 September 2019, there was some discussion at a Board meeting about the application of a 1% rent reduction (see p.307). Mr Melia interpreted the legislation in one way, whilst the claimant disagreed. The note of that discussion was as follows:

[106]The claimant presented by email to Mr Melia (cc’d to Mr Goodson, Mr Qureshi and others) her position with respect the 1% rent reduction (see pp321a321b). Within this email she explains:

[107]Mr Melia presented an email with his interpretation on 24 September 2019 (see pp315-319) and spoke to that document at the Board Meeting on 27 September 2019.

[108]The Board reconvened on 27 September 2019. Having considered the two conflicting pieces of advice, the Board unanimously voted in preference of Mr Melia’s advice. This is recorded at p.310:

[109]The claimant enquired as to the outcome of the 27 September board discussion by email on 11 October 2019 (see p.333). Mr Goodson explained the following:

[110]The claimant replied to this email on 11 October 2019 (see p.334), explaining:

[111]The claimant brings this part of her claim on the basis of having been ‘circumvented to advise the board on legal matters’. However, that is clearly not the case. On a factual level, the claimant was involved in discussing this matter, with her view listened to, albeit ultimately rejected. This is evident in the minutes from 23 September 2019. Furthermore, the claimant was afforded the opportunity (and took it up) to provide her interpretation of the relevant housing regulations to the Board. And she thanked the Board for that opportunity. The claimant has clearly not been circumvented in these circumstances, but actively involved.

[112]Ultimately, the Board were persuaded by the advice of another. Those witnesses questioned on this matter explained that Mr Melia’s advice was clearer in terms of the relevant provisions and persuasive in its interpretation as it applied to the respondent. And having considered the two advices in question, this is a plausible conclusion for each to reach. This allegation appears to be more rooted in disagreeing with the outcome of that decision, rather than being a detriment that gives rise to the claims that are brought on this item.

[113]The claimant has not satisfied the tribunal that, on a factually level, she was circumvented from giving legal advice. But to the contrary, was involved and an active participant. In those circumstances her claims of direct discrimination because of sex or disability, victimisation and unlawful detriment on the ground of making a protected disclosure all fail.

[114]The tribunal was also satisfied that the decision of preferring Mr Melia’s advice had no causative link to sex, disability, a protected act or a protected disclosure.

[115]The claimant was aware of the need to complete quarterly returns of statistical data to the Regulator and was aware of an upcoming deadline. As such, she emailed Mr Qureshi on 15 October 2019 to ensure that this was being completed by the deadline (see p.335). She wrote:

[116]Mr Qureshi responded on that same day with the following:

[117]On 15 October 2019, following the email exchange above, the claimant knocked on the door of the boardroom, where Mr Qureshi and Mr Goodson were sat. The claimant raised the issue of the quarterly return. Mr Qureshi repeated that which was contained in his earlier email, that he had no idea about it.

[118]Mr Qureshi, more likely than not laughed at this point, before he explained that the returns were half done, before showing the claimant the status of the current return on his laptop.

[119]Mr Qureshi considered his actions to be a joke, but the claimant did not.

[120]As a matter of principle, this conduct is in no way related to either sex or disability, and as such cannot support a claim of harassment related to either sex or disability. The harassment claims are therefore dismissed.

[121]Even had this been brought as a direct discrimination claim because of either sex or disability, the claim would still fail based on the evidence before this tribunal. The claimant’s own evidence supports a finding that the treatment that she was subjected to was not because of her sex or disability, but rather because Mr Qureshi considered it appropriate to play a practical joke and that he had played one successfully. This may well be misguided, but it does not support a finding of discriminatory treatment. The claimant has not adduced sufficient evidence to establish facts from which this tribunal could conclude that there was any causal connection between the treatment in question and the either the protected characteristic of sex or disability.

[122]It is on this basis that the claim must fail. Claims insofar as they relate to Item 8 of the Scott Schedule are all dismissed.

[123]Mr Goodson did not make the comment that ‘if I had known she was deaf I would never have hired her’. Put simply, it is implausible that Mr Goodson made this comment given that he was aware that the claimant was deaf at the point of appointment. And was aware of the claimant being deaf at the point of her passing through her probation period. Further, the claimant is relying on the accounts of others, whom she has elected not to call to give evidence. Considering all of this, on balance we find that the comment was not made by Mr Goodson.

[124]Given our finding above, this claim is found not to succeed.

[125]There was no contractual agreement to have the restrictive covenants contained within the claimant’s contract reviewed on the completion of the probationary period. No such agreement was reached between the claimant and the respondent. We make this finding based on the record of the agreement contained in the claimant’s contract. This was not challenged by the claimant as being inaccurate when she received the contract.

[126]The initial decision to include restrictive covenants into the claimant’s contract was down to business reasons. This was accepted by the claimant when she gave her evidence.

[127]On 12 November 2019, the claimant emailed Ms Tye, a Human Resources Manager for the respondent, explaining that her probation period had ended on 29 October 2019 and asking whether the restrictions on working in her business ‘On Point’ could be revisited (see p.350).

[128]Ms Tye responded to the claimant on 22 November 2019, explaining that she had raised the matter of removing the restrictive covenants from her contract with Mr Goodson, and that Mr Goodson had responded by allowing the claimant to deliver training, but not to other housing associations. In other words, Mr Goodson relaxed the position as it related to the restrictive covenants that applied to the claimant.

[129]No other employees of the respondent were permitted to undertake paid work in direct competition with the respondent. The claimant has not adduced sufficient evidence for the tribunal to make any finding to the contrary.

[130]The reason behind this decision of Mr Goodson was to prevent the claimant from making use of information gained through her employment for the respondent and delivering training to any of the respondent’s competitors. This restriction was maintained for a business reason.

[131]Oddly the claimant pleads this in terms of her restrictive covenants not having been redrafted. Whereas the reality is that they were redrafted as from 22 November 2019. They were relaxed to allow the claimant to have a more forwardfacing role in her training company, whilst previously this was precluded. This is redrafting. In that sense, the claimant has failed to establish the primary facts on which she brings this part of her claim, and it must therefore fail.

[132]However, even if we are wrong on our reading of the claim as it is brought, and if this pleading was focussed on the decision to not remove the restrictive covenants in their entirety, then this part of the claim would still fail. And it would fail on both the need to establish detriment and the causal connection, in relation to each of the type of complaint brought.

[133]The claimant does not bring a complaint in these proceedings about the initial restriction against working for her training company. She accepts that there were reasonable business reasons behind this initial decision. Instead, focusses on the position as it continued to exist after the completion of her probation period.

[134]Moving from a strict restriction in terms of outside work permitted, which is for business reasons, to a more relaxed position in terms of training but still precluding work that is for direct competitors, does not reach the level of being a detriment. This decision clearly remains as was the case in the first place, a decision made for commercial reasons. It would be unreasonable to view a relaxing of a restriction, which had been accepted as having been imposed for valid commercial reasons, as reaching the level of detriment

[135]Not only does the claimant fail to establish that this decision not to remove/redraft the restrictive terms is a detriment, but the reason behind that decision has nothing to do with the claimant’s disability or sex or having made a protected act or having made a protected disclosure. The claimant adduced no evidence to support that any such causal link existed

[136]All claims brought in relation to item 11 are therefore dismissed.

[137]The claimant was emailed by Mr Goodson at 12.10 on 12 November 2019, requesting an update on progress for the In-Depth Assessment. He wrote the following:

[138]The claimant replied to this email, on the same day, at 12.14:

[139]On 17 November 2019, the claimant sent an email to board members seeking their papers for the meeting to be submitted by the following Wednesday, which was 21 November 2019.

[140]As a matter of principle, this conduct is in no way related to either sex or disability, and as such cannot support a claim of harassment related to either sex or disability. The harassment claims are therefore dismissed. The tribunal again, did give consideration as to what the position would be had it been brought as a direct discrimination complaint.

[141]This allegation is brought on a detriment that she was asked to complete an extensive report in a three-day turnaround on every single piece of work that she had done since her employment started with the respondent. However, there is no request for a report, nor was this required within 3 days. The claimant having up to 9 days to complete the update. Factually, her claim of harassment (or direct discrimination had it been brought in that way), victimisation and detriment on the grounds of a protected disclosure insofar as it relates to item 12 is not established and fails as a result.

[142]The claimant’s response to the email from Mr Goodson is also quite telling in this case. She replies by stating ‘No problem’. This does not demonstrate that the claimant was perceiving the request made by Mr Goodson as being an act that would amount to a detriment for the purposes of any of these claims.

[143]And taking this one step further, the reason behind the request is accepted by the tribunal as being due to an upcoming In-Depth Assessment in January 2020, which the claimant was aware of since the commencement of her employment. The tribunal, had it been required, would have found that the reason behind this request was due to that impending assessment. The claim would have failed on the lack of any causal connection to either of the protected characteristics on which this claim is brought, any protected act or a protected disclosure.

[144]Meeting with the regulator was not part of the claimant’s contractual role with the respondent. The claimant’s contract simply does not require this, nor was it mentioned in the job description for the role that she occupied. The claimant accepted this under cross examination.

[145]No manager at the equivalent level of the claimant met with the Regulator.

[146]It was only the respondent’s board members or members of its executive team that met with the Regulator. Ms Alston, because of her being on the Board of Trustees, met with the Regulator on at least one occasion. Attendees at meeting with Regulator was always at the request of the Regulator.

[147]The claimant has produced no evidence to support any findings that members outside of board members and/or the executive team met with the Regulator.

[148]It is the case that the claimant was excluded from meetings with the Regulator. However, this was no way because of her sex or disability, or for having done a protected act or on the grounds of having made a protected disclosure. It was because of her status within the company. She was never a member of the Board, nor part of the executive team. This is the sole reason behind her exclusion. The claimant may well consider that she should have been involved in such meetings, but that is not enough to support the claims which she brings before the tribunal.

[149]Angela Furness, a HR consultant with a third party was appointed to hear and determine the claimant’s grievance. A grievance meeting with the claimant took place on 10 March 2020. This meeting started at 10.30am. It was explained at the beginning of that meeting that should the claimant need a break then she needs just ask for one. The claimant accepted under cross examination that as it is recorded in the minutes of that meeting then it ‘must be accurate’ (see p.471). During the meeting it was identified that the claimant’s companion was named in the grievance on numerous occasions and that this may mean that there is a conflict of interest. On this basis this meeting was adjourned at 11.25 (see p.474).

[150]This was the first time that the claimant had met Ms Furness.

[151]The grievance meeting reconvened on 13 March 2020. This meeting started at 10.30. Again, Ms Furness explained at the beginning of the meeting that a break would be arranged if one was requested (see p.475).

[152]The meeting on 13 March 2020 and concluded at around 14.30. This is the clear evidence of Ms Wood on this matter (see para 39 of Ms Wood’s witness statement), was not challenged by the claimant, accepted as possible by the claimant under cross examination and is consistent with the record of when Ms Furness was signed out from the respondent’s premises (see p.469).

[153]On one occasion during the meeting the claimant got upset. This led to a break in the meeting. This break was in the afternoon and lasted about 15 minutes.

[154]It is likely that there was a short break in the morning. This was a short comfort break during which Ms Wood left the room to refresh everybody’s drinks. Ms Wood is clear on this at paragraph 26 of her witness statement. Whilst the claimant explained that she could not say that this did not happen when crossexamined on this point. The claimant did not challenge Ms Wood on this point under cross examination, other than to indicate that she thought there was only a single break. On balance, we make a finding that the claimant’s recollection on this point is less likely to be accurate than that of Ms Wood.

[155]The claimant was offered a further break for lunch but declined it. Paragraph 27 of Ms Wood’s evidence was not challenged on this point.

[156]During the meeting, the claimant did not ask for or require any further breaks.

[157]The claimant has been involved in meetings other than this one that has lasted more than a couple of hours. Neither during nor following these meetings did the claimant raise any issue about the meeting not having breaks every 45 minutes.

[158]The claimant has not established the facts on which she brings this claim. No grievance meeting lasted for 6 hours. The meeting of 13 March 2020 lasted for 4 hours, at most. Further, the tribunal, on balance, found that there were at least 2 breaks with a third offered, with the claimant being afforded the ability to request further breaks where necessary. On a factual basis, these claims fail.

[159]In respect of the claim for a failure by the respondent to make reasonable adjustments, the claimant has failed to establish facts that support a number of the constituent parts of that claim. The tribunal was not satisfied that the respondent had a practice of holding meetings that lasted up to 6 hours whilst only affording a single break. The claimant has failed to adduce evidence that such lengthy meetings put her at a substantial disadvantage for reasons connected to her disability. The claimant has failed to establish either actual or constructive knowledge of that substantial disadvantage. And the claimant has failed to establish that the adjustment contended for would have removed or alleviated the substantial disadvantage in question.

[160]All claims brought under item 16 are therefore dismissed. ITEMS 14, 15, 17 AND 18

[161]There was a peer review that took place between 17 October 2019 and 24 November 2019. This was undertaken by Lica Marchant. This resulted in 34 recommendations. It included a proposed new structure for the respondent. And a proposal that Ms Marchant would be appointed as Consultant Strategic Leader for a period of six months. Her role was to ‘drive change, review organisational structure and to future proof the organisation. These proposals were approved by the Board at the board meeting of 15 January 2020 (see p.419).

[162]The claimant started a period of absence form work through illness, on 13 December 2019.

[163]On 15 January 2020, Ms Marchant brought forward a Business Case Proposal (see pp.416-417). She proposed that the permanent Governance Manager role be made redundant and that this area of the business be outsourced to an external company. Ms Marchant made this proposal on the following basis:a. There is currently a gap in critical provision due to the claimant being absent from work

b. The claimant has made it clear that her desire is not to return to her employment with the respondent

c. An external party, namely Campbell Tickell, had been identified as providing multi-disciplinary management consultancy, including on governance matters

d. Engaging an external company such as Campbell Tickell would be cost neutral in the first year, but would make savings of between £8,000 and £12,000 per year going forward

e. Utilising an external company comes with the added benefit of protection through its professional indemnity insurance

[164]A decision was mas at the board meeting of 15 January 2020, where the Board decided to accept the proposal presented by Ms Marchant. Cheryl Calland was instructed to prepare a letter of redundancy (se p.422). Although the claimant disputes whether any decision was made at this meeting, it is clear through the actions recorded that this was the decision reached in relation to her.

[165]The claimant was sent a letter on 20 January 2020 informing her that her role had been selected for potential redundancy for economic reasons (see p.424).

[166]On 23 January 2020, Mr Manning wrote to the claimant to explain that the redundancy process and the grievance process was being kept separate. And to ensure this, an external company would be appointed to manage the grievance. The company P3PM was appointed to manage the grievance process.

[167]The claimant attended a first redundancy meeting on 05 February 2020. This meeting was chaired by Mr Manning. In this meeting the claimant explained that she would not be returning to work for the respondent. Notes (these start at p.429, but see p.430), that were not challenged as inaccurate by the claimant at the time, record:

[168]On 14 February 2020, Ms Calland sent the claimant alternative roles available with the respondent (see pp.436-437). Further alternative roles were sent to the claimant, including on 25 February 2020 (see p.449).

[169]A second redundancy consultation meeting was held on 04 March 2020. The claimant is recorded as explaining that:

[170]On 13 March 2020, the claimant reiterated to the respondent, during her grievance meeting that she no longer wished to continue working for the respondent.

[171]The claimant was sent a letter dated 02 April 2020, which confirmed thrat her role was being made redundant and that as a result her employment was being terminated. It explained that:

[172]The role of Governance Manager does not exist within the respondent currently. This role has never been replaced.

[173]The tribunal was satisfied that the reason behind the claimant’s role of Governance Manager being put at risk of redundancy, being made redundant and the decision to terminate the claimant’s contract by reason of redundancy were for reasons associated with cost savings that could be made by engaging an external consultancy firm. And this was in circumstances where the claimant had made it clear to the respondent that she was not intending on returning to work. The claimant has not adduced any evidence that would support that she was subject to any of these actions for reasons connected to her sex or disability, or for having done a protected act, or that her having made a protected disclosure materially influenced (for the detriment claims), or was the principal reason (with respect the automatic unfair dismissal complaint) for these decisions.

[174]These claims must therefore all fail.

CONCLUSION

[175]This was a case where the tribunal needed to constantly remind itself of what the allegations were in this case, and to ensure that is did not stray into matters that went beyond the pleaded case. For example, there was evidence of certain things being said in this case whereby one party considered it a joke, but it appeared to cause some distress to the recipient (namely the claimant). However, the tribunal was tasked with determining the legal claims that were before it. And its focus had to be on those matters. Whether the tribunal agreed with some of the actions or not (which no comment is passed, and nothing should be read into that) was only considered where it was relevant.

[176]The tribunal did adopt a less formal approach to the pleadings, in particular where an allegation was brought as harassment without a claim of direct discrimination in the alternative, where the allegation appeared to fit better as a claim of direct discrimination. This was to ensure that none of the allegations brought by the claimant were dismissed simply by virtue of the claimant not knowing the correct label to place on an allegation. This appeared to be the fairest approach the tribunal could adopt.

[177]For the avoidance of any doubt, all claims in this case fail and are dismissed.

INTRODUCTION

[1]Liability in these proceedings were determined by the same tribunal that considered this costs application, with judgment being made on 06 December 2022 and sent to the parties on 08 December 2022. The decision was that the claims in their entirety failed and were dismissed. In total there were some 17 live allegations at the final hearing (see schedule of allegations appended to the back of the original judgment), which spanned across a number of different legal complaints: direct sex discrimination, direct disability discrimination, harassment related to sex, harassment related to disability, a failure in the respondent’s duty to make reasonable adjustments, victimisation, being subjected to a detriment on the grounds of having made a protected disclosure and of automatic unfair dismissal for making protected disclosures.

[2]The respondent made an application for costs by letter dated 04 January 2023.

[3]By letter dated 17 January 2023, the tribunal wrote to the parties. This was to give the claimant the opportunity to respond to the application and to seek her views as to whether she was content for the application to be dealt with on the papers. A response was required by 24 January 2023.

[4]Although there is no copy on the tribunal file, we can only presume that the claimant responded to this letter to inform the tribunal that she was content for the application to be determined on the papers, as the respondent emailed the tribunal on 30 May 2023 to present written submissions in support of its application along two statements of costs, whilst explaining that these had been provided following the claimant having confirmed that was content for the application to be considered on the papers. No email from the claimant to the contrary was received.

[5]The claimant, by letter dated 11 July 2023, was directed to submit her response to the application by 14 July 2023. And it was explained to the claimant in that letter that if she wanted the tribunal to take into account her financial means and ability to pay when determining the application then she would need to produce any supporting evidence on which she relies on by that same date. This letter also confirmed that the application would be determined on the papers.

[6]It appears that Employment Judge Butler had directed the above letter to be sent to the claimant on 19 June 2023, but that it was not actioned until 11 July 2023, which did give the claimant very little time to comply.

[7]On 17 July 2023, the respondent wrote into tribunal to inform it that they had not been copied into any submissions made by the claimant and requested the application to proceed.

[8]The claimant emailed the tribunal on 18 July 2023, apologising for the delay in responding to the letter of 11 July 2023, but explaining that she would need more time. She explained that she had not checked her emails at the time, and that she would need more time as a litigant in person.

[9]Although the respondent objected to an extension of time (email of 18 July 2023), EJ Butler decided to extend time for the claimant to present her submissions to the tribunal to 11 August 2023.

[10]The respondent emailed the tribunal on 15 August 2023. This explained that they again had not received copy of any submissions made by the claimant.

[11]The tribunal had not received any submissions by the claimant at the date that this application was being determined. Nor has the tribunal had any further communication by the claimant to explain why there have been delays or seeking a further extension. COSTS APPLICATION

[12]The application for costs was brought on two grounds: that the claims had no reasonable prospects of success and on the unreasonable conduct of the claimant.

[13]In respect of the claims having no reasonable prospects of success, this was advanced broadly in the following ways (although the submissions made are broken down into the specific allegations):a. That the claimant’s own evidence would not support the allegations made.

b. That the claimant failed to adduce any evidence of a causal link to a protected characteristic in the allegations of discrimination

c. When looked at sensibly and in the round, the claimant should have known that the claims brought were bound to fail.

[14]In terms of unreasonable conduct, the respondent advances this in the following ways:a. That it was unreasonable conduct to pursue complaints that were manifestly doomed to fail.

b. The claimant’s approach toward settlement. This was despite having legal representation for almost two years. That there were two costs warnings (09 May 2022 and 09 August 2022). And that despite explaining on what basis the respondent considered the claims brought to have no reasonable prospects of success, the claimant rejected to offers off settlement made. RESPONSE TO APPLICATION

[15]The tribunal received no response from the claimant. There are no submissions made by the claimant in respect of the costs application before the tribunal at the time that this decision was made. THE RULES

[16]The power to award costs by the Employment Tribunal is contained within the Employment Tribunals Rules of Procedure Regulations 2013. Rule 76 specifically deals with the grounds for which a costs order can be made. Rule 78 deals with the ‘amount’ of a costs order and Rule 84 deals with the ‘ability’ of the paying party to pay a costs order.

[17]Under Rule 76 (1) "a Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that – (a) a party (or that party's representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted”.

[18]Under Rule 78(1) “a costs order may –(a) order the paying party to pay the receiving party a specified amount, not exceeding £20,000, in respect of the costs of the receiving party;

(b) order the paying party to pay the receiving party the whole or a specified part of the costs of the receiving party, with the amount to be paid being determined, in England and Wales, by way of detailed assessment carried out either by a county court in accordance with the Civil Procedure Rules 1998, or by an Employment Judge applying the same principles …"

[19]Under Rule 84, in deciding whether to make a costs, preparation time, or wasted costs order, and if so in what amount, the Tribunal may have regard to the paying party’s (or, where a wasted costs order is made, the representative’s) ability to pay. RELEVANT PRINCINPLES

[20]In terms of general principles that we have reminded myself of in advance of considering this application, these include:a. costs are the exception, not the rule;

b. costs are designed to compensate the receiving party for costs unreasonably incurred, not to punish the paying party for bringing an unreasonable case, or for conducting it unreasonably.

c. we should follow a 3-stage process: first, we should decide whether the threshold in Rule 76 had been crossed. Secondly, we should then consider as an exercise of discretion whether that conduct merited a costs order; it was not automatic that because we had the power, we should exercise it. Thirdly, if we decided to make a costs order, we should consider the appropriate amount of costs incurred by the respondent in defending the unreasonable claims.

[21]There is no principle that a claimant knows or should know that a claim has no reasonable prospects of success. However, where a party does or should know then this may well be a factor taken into account by the tribunal.

[22]The tribunal should not disregard questions of causation. However, when considering whether the tribunal needs to apply a strict causal test when considering unreasonable conduct and the amount of costs to be awarded, Mummery LJ in McPherson v BNP Paribas (London Branch)

[2004] EWCA Civ 569

stated: “40. The principle of relevance means that the tribunal must have regard to the nature, gravity and effect of the unreasonable conduct as factors relevant to the exercise of the discretion, but that is not the same as repairing [the receiving party] to prove that specific unreasonable conduct by [the paying party] caused particular costs to be incurred.

[23]In Kopel v Safeway Stores [2003] IRLR, the EAT explained that unreasonably refusing an offer of settlement can give rise to a finding of unreasonable conduct for the purposes of costs.

[24]Mr Boyd referred the tribunal to the case of Power v Panasonic (UK) Ltd

UKEAT/0439/04/RN

, identifying that a tribunal may consider a party to have acted unreasonably where an offer of what could be obtained at tribunal was made, the offer rejected and a costs warning has been given.

[25]With regard to the paying party's ability to pay, Rule 84 allows the tribunal to have regard to the paying party's ability to pay, but it does not have to, see Jilley v Birmingham and Solihull Mental Health NHS Trust and Single Homeless Project v Abu

UKEAT/0519/12

[26]Lord Justice Mummery had set out the general principle to follow at this third stage, in his judgement in Yerrakelva v Barnsley MBC

[2012] ICR 420

, at paragraph 41: ‘The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had. The main thrust of the passages cited above from McPherson’s case was to reject as erroneous the submission to the court that, in deciding whether to make a costs order, the employment Tribunal had to determine whether or not there was a precise causal link between the unreasonable conduct in question and the specific costs being claimed.’

[27]Last but not least, discretion must be exercised so as to give effect to the overriding objective (rule 2) to deal with cases justly and fairly, having regard to:(a) ensuring that the parties are on an equal footing;

(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;

(d) avoiding delay, so far as compatible with proper consideration of the issues; and

(e) saving expense. ANALYSIS AND CONCLUSIONS Did the claims have no reasonable prospects of success?

[28]Given our findings in the liability judgment, we are satisfied that the claims brought by the claimant had no reasonable prospects of success. We agree with the submissions made by Mr Boyd that the claimant ought to have known that the claims in their entirety were bound to fail, particularly given the evidence she gave herself.

[29]Turning to each in turn, to amplify some of the tribunal’s reasoning, but whilst maintaining a proportionate approach to the tribunal’s reasoning:a. Item 1: comments about the claimant’s hearing loop. This allegation on the face of it, at least as a bare allegation did appear to have some prospects of success. However, given the circumstances around this comment and the actions of the claimant after it of which the claimant knew at the time. And that the comment followed on naturally from the claimant’s own observations at that meeting, this claim had no reasonable prospects of succeeding.

b. Item 2: the Declarations of Interest Form. A claim brought based on Mr Melia seeking clarification of two ambiguous terms, when that was part of his role and which the claimant then followed through on, as being a detriment had no reasonable prospects of success. And this was compounded by no evidence presented by the claimant from which the tribunal could conclude a that there was some link to either sex or disability.

c. Item 3: no involvement in Chair interview. Given that this did not form part of the claimant’s role, this allegation had no reasonable prospects of success. And this was compounded by no evidence presented by the claimant from which the tribunal could conclude a that there was some link to either sex or disability.

d. Item 4: the issue concerning inaccurate minutes. The claimant produced no evidence to support any findings from which the tribunal could conclude a that there was some link to either sex or disability or a protected disclosure. This allegation therefore had no reasonable prospects of success.

e. Item 5: Frequency of meetings. The claimant’s own evidence was that Mr Goodson continued to meet the claimant during October and November 2019. And therefore this allegation had no reasonable prospects of success.

f. Item 6: circumvented from giving advice. The claimant’s own evidence did not support that she had been circumvented from giving advice. In fact, she provided advice and was given further opportunity to produce more to be considered. This claim therefore is found to have no reasonable prospects of success.

g. Item 7: ‘the prank’. . The claimant produced no evidence to support any findings from which the tribunal could conclude a that there was some link to either sex or disability or a protected disclosure. This allegation therefore had no reasonable prospects of success.

h. Item 9: Comment from Mr Goodson that ‘if I had known she was deaf I would never have hired her’. The claimant identified a third party who witnessed this matter and chose not to call such important evidence. This was part of the reasoning of the tribunal in finding that this did not happen. This claim therefore is found to have no reasonable prospects of success.

i. Item 10: Not amending the claimant’s restrictive e covenants. The claimant accepted in evidence that the restrictive covenants were inserted for business reasons. And agreed to them. There was no review mechanism in the claimant’s contract. The claimant brought no evidence to support that other employees were allowed to undertake paid work. This allegation therefore had no reasonable prospects of success.

j. Item 12: Mr Goodson requesting a progress update within 3 days. The claimant’s own evidence did not support this specific allegation. The claimant understood the context of seeking an update, namely an upcoming In-Depth Assessment. And this was compounded by no evidence presented by the claimant from which the tribunal could conclude a that there was some link to either sex or disability, any protected act or a protected disclosure.

k. Item 13: not being allowed to meet the regulator. Given that the claimant understood that it was not part of her role to meet with the regulator, this claim is found to have had no reasonable prospects of success. And further, no evidence was adduced that any such exclusion was because of her sex or disability, or for having done a protected act or on the grounds of having made a protected disclosure.

l. Item 16: No breaks during a meeting. The evidence supported that this was simply not accurate. this claim is found to have had no reasonable prospects of success.

m. Items 14,15, 17 and 18: redundancy situation. There was no evidence adduced by the evidence that supported a finding other than that this was a genuine redundancy situation. These allegations therefore had no reasonable prospects of success. Unreasonable conduct. Has the claimant conducted the proceedings unreasonably?

[30]Given the above, the claimant’s decision to pursue claims that had no reasonable prospects for success is also found to be unreasonable conduct. Especially in circumstances where the respondent was given two costs warnings, which identified the inherent weaknesses in the claimant’s allegations and made offers of settlement.

[31]In those circumstances, the tribunal does consider that it was an unreasonable refusal to settle the claim, which also amounts to unreasonable conduct. Discretion as to making a costs order

[32]The next question we ask ourselves, having found that there are grounds for making a costs order, is whether to making one is appropriate in this case. We consider that it would be appropriate to make a costs award in this case for the following reasons:a. Although costs are the exception rather than the rule, this is one of those exceptional cases where a costs order is appropriate.

b. The claimant had access to professional legal advice for a large proportion of the proceedings. The claimant was represented when her claim form was presented on 27 March 2020, and continued to be represented until 16 March 2022, when her professional representatives came off record.

c. The claimant was put on notice early on in the process that the respondent would be applying for costs if she continued to pursue the claims. This was first on 09 May 2022. And secondly on 09 August 2022.

d. The claimant has not made any submissions as to why the tribunal should not use its discretion to award costs.

e. It cannot be in the interests of justice to permit a claimant to bring and maintain a claim that they should know is not well-founded. And the claimant should have known when she had all the evidence before her (or in discussion with her representatives), or when in receipt of the costs warning letters. Ability to pay

[33]The claimant has submitted no evidence relating to her financial means and/or income and outgoings. The claimant was given the opportunity to do so. In these circumstances the tribunal has not taken into account the claimant’s means in either its decision to use its discretion to award costs or in the amount to be awarded. What amount of costs should the claimant be ordered to pay?

[34]The tribunal again reminded itself that the purpose of an award for costs is to compensate the party in whose favour the costs award is made, and not to punish the party ordered to pay the costs.

[35]As far as the ability to pay is concerned, for the reasons outlined above, the claimant has not produced any evidence in this respect and therefore cannot be taken into account.

[36]The tribunal was presented with the respondent’s current schedule of costs. This was in two parts. The first related to costs save for preparation for the costs hearing. This ran to a total of £128,047.80. In respect of preparing for the costs hearing itself, the figure stands at £2,274.

[37]Although the tribunal appreciates that the claim involved multiple allegations of discrimination, and across different guises of discrimination, involved a multiple day hearing, and involved 9 witnesses for the respondent, the total figure does appear rather a large figure in the circumstances of this case.

[38]When considering whether to refer this matter for a detailed assessment or to undertake a summary assessment, we have concluded that it would be appropriate to exercise our discretion for summary assessment. This is a claim that commenced in March 2020, and would not be fully resolved until at least 4 years after that date (although we anticipate it would take much longer). This allows the parties to bring these proceedings to an end. Further, we consider that a summary assessment would be in accordance with the overriding objective in saving costs to both parties, in avoiding any further delay and in saving time.

[39]In these circumstances, and although we do consider the costs schedule to be somewhat excessive for a claim of this nature, we assess that the claimant should be ordered to pay £20,000 as a contribution to the respondent’s costs. This is a proportionate sum to the complexity and importance of the issues being determined.