Ms L Ham v Citizens Advice Bureaux (Salford): 2402847/2022 and 2409770/2022
EMPLOYMENT TRIBUNALS
Case No 2402847/2022, 2409770/2022
Between
Ms L HamClaimantCitizens Advice Bureaux (Salford)Respondent
Before
Employment Judge MellorIn person for claimantDate 5 May 2025
JUDGMENT
The complaints of direct age discrimination are not well founded and are dismissed. The complaints of harassment related to age are not well founded and are dismissed. The complaints of victimisation are not well founded and are dismissed. The complaint of unfair dismissal (including because the claimant had done a protected act and under section 98 ERA 1996) is not well founded and is dismissed. The claim for holiday pay (unauthorised deduction from wages) is not well founded and is dismissed. The claim for failure to provide written reasons for the dismissal is not well founded and is dismissed.
REASONS
[1]The claimant brings claims for: direct age discrimination, age related harassment, victimisation, unfair dismissal, unauthorised deduction from wages (holiday pay) and failure to provide written reasons for her dismissal. The unanimous decision of the tribunal is the claims are not well founded and all of them are dismissed.[2]The hearing was an in person hearing with the claimant representing herself and Ms Clayton, counsel, representing the respondent. The hearing had been listed for 5 days commencing in November 2024. On the first day the claimant made an application to vacate the hearing as she did not think 5 days was sufficient. We refused that application because(a) it had been left very late in the day meaning tribunal resources had already been allocated to hear this case(b) when we looked at alternative dates to list an 8 day hearing it would have been early 2026. Applying the overriding objective, the interests of justice the available resources and the importance of the issues to the parties we considered starting the hearing and going part heard (if that was necessary) would be furthering the overriding objective. Vacating to 2026 in our judgment would not. In the end we did need 8 days of evidence, with the remainder of the 10 days for submissions and deliberations.[3]The following are our findings of fact, a lot of which was not in dispute. Where matters were in dispute, we have set out our finding and why we have preferred the evidence of one party over the other. Generally, we did find the respondent witnesses to be more reliable. Their evidence was consistent both internally and with contemporaneous documents. Ms Ham was often not consistent and at times difficult to follow even allowing for the difficulties of representing oneself and being in a stressful environment. Overall, the impression the tribunal had was that Ms Ham read into the content of emails, comments or strategic decisions meanings that were not intended which has clouded the way she perception. Background 2014 to March 2020.
Background
[4]The claimant commenced employment at the respondent on 1/10/14, initially this was a fixed term contract for 11 months. In August 2015 she was issued with another fixed term contract. In 2016 her role became permanent. The only permanent contract of employment in the bundle is signed by the claimant on 3/11/17. This document contains the written terms and conditions of employment. For the purposes of this claim the relevant parts of the contract are:a. Job Title, place of work and duties. You are required to work for Salford Citizens Advice Bureaux as a [sic] Advice Service Manager. Your place of work is at Salford City Bureau or at such other places as the bureau may require. Your duties are set out in your job description attached to this statement. Yor job description does not form part of your contract. Employees are required to be flexible to meet the changing needs of the bureau. You are also required, when requested, to undertake any other duties appropriate to the grade and nature of your job in order to meet the needs of the bureau. This may be on a permanent or temporary basis.b. Notice to Terminate employment One week’s notice for each full year of continuous service up to 12 years. Work during notice period During the period of notice the Bureau may require. That you hold yourself available to carry out such duties, if any, as the Bureau may require. But the Bureau may suspend you from all or any of your duties and impose such restrictions on the carrying out of your duties, your activities. Attendance at the Bureau's premises, contacts with clients, staff, consultants, suppliers, donors and vendors and otherwise as it shall think fit. There is no contractual entitlement to pay in lieu of notice ‘PILON’c. The disciplinary and grievance procedures are non-contractual.[5]It is agreed between the parties there were no work-related issues until 2017. With both the claimant and Gareth Hughes referring to issues in the summer of 2017. An example of this can be seen in the email between the Claimant and Gareth Hughes. On the 28th and 29th of June 2017. On the 28th of June 2017, Gareth Hughes sent all of the staff a message via e-mail noting the following.:a. “Further to some issues that arose yesterday at City, Please note the following.... Finally, and most importantly, Please ensure that if any disputes arise from a misunderstanding of these processes, that they never take place in the General office in earshot of volunteers”.b. In response to that e-mail on the same day, the claimant wrote: “I acknowledge your email's. I have some concerns, especially about; Lee, Please ensure that if any disputes arise from a misunderstanding of these processes that they never take place in the general office in earshot of volunteers. I don't recognize this event or why volunteers and earshot are involved?” [368]c. Mr. Hughes responded. The issues re volunteers are standard message when any issues like this arise, as it's not uncommon for volunteers to get caught in the crossfire and that should be avoided.d. Miss Ham wrote: Why is it supposed that any volunteer got caught in any ‘crossfire’? And really? Really bemused as to what ‘crossfire’ is being referred to. What is the standard message? I spoke to you honestly and I thought in confidence, bemused, concerned and starting to become aggrieved. Gareth......” [367]e. When she didn't get the answer that she liked, Miss Ham wrote: “with the greatest respect. I would just like answers to the questions that I have raised. Pleased. Before Gareth could respond to that email. Miss Hamm sent a second e-mail saying the following: I have a number of concerns. Which mainly stem from my belief that I raise concerns about a colleague who was in distress. And I did this, I thought, in confidence. I believe that I set the scene as to how I became involved in the matter... dot and now the context has taken over from the concerns I raised. I understand that a complaint has been about my conduct? [366][6]This e-mail exchange is an example of the relationship between Mr. Hughes and the claimant in the summer of 2017. By November 2017 A complaint had been made Against the claimant by a colleague of hers, Mick Russell. When the claimant found out about this, she emailed Mr. Hughes on the 6th of November 2017 Saying the following: I am writing to you following the Dignity at Work allegations lodged against me. I refute the allegations in total. However, I am very concerned about how they have arisen and would like the opportunity to respond in full. I also have grievances. At present I feel very aggrieved and quite frankly, shocked.” [370][7]Between the summer of 2017 through to 2020 there were some challenges. There were issues with the space in the city Bureau with additional teams being placed in the same building. Her Co ASM Mick Russell had a period of long-term sickness absence as did the other ASM (who we note was peripatetic). The claimant therefore had an increase in her workload which ultimately resulted in her own health deteriorating and her taking a period of sick leave.[8]On 3 March 2020 the claimant emailed Mr Hughes raising a grievance. In her email she states: “I need to raise a grievance and I should like time to document the issues that I need to raise. I have tried to discuss some things during my appraisal but this was not successful. I am unclear who the decision makers are in the various situations, So in terms of procedure, I do not know if the composition of the meeting is appropriate. Or not. The fundamental issue is that different employees are being treated differently.” [373][9]Mr. Hughes invited the claimant to attend a meeting at 3:00 PM on Tuesday after the 3rd of March to come to Langworthy Cornerstone to discuss the concerns [373]. The claimant replied saying she will work from Cornerstone as directed next Tuesday, but that her grievance will not be completed before Tuesday. On the same day the claimant also said that she could not stay at work until 5:30 as requested because she had a domestic situation and she said. “If this involves disciplinary action, I will face what is involved” [374]. Mr Hughes offered to delay the meeting in his email of 4 March 2020, but the claimant did not reply to that until the morning of the Tuesday 10 March 16:39 which was an hour and 39 minutes after Mr Hughes and Tom Togher had thought the meeting was due to start.[10]The claimant went on sick leave in late March 2020 and returned to work in May 2020.[11]On 23 March 2020 the country went into the first lock down as a response to the Covid-19 Pandemic.[12]During a telephone catch up on 2 April 2020 the claimant explained the issues leading up to her being off sick “she felt all the things had built up due to changes at City, tension with Sharon, being asked to stay for H2C”. She references her concerns in September supervision and appraisal and “nothing being resolved” [383].[13]The claimant and Elaine Kenny had an informal grievance meeting on 27 April 2020. This became informal when Elaine Kenny queried “I think the first point is to work out which process we are using, formal or informal and go from there” and the claimant responded “Happy to follow the informal process as you say things are so different now” [386]. The claimant prepared a table titled “Grievance summary for discussion on Mon 27 April 2020” the issues were identified by the claimant as(1) Ongoing office issues e.g. rubbish bins, reception and ownership, lack of collective responsibility(2) lone working policy(3) staff absences(4) City overcrowding during Hope closure(5) the restructure Oct 19 – Feb 20(6) case checking and(7) tension with Sharon. The claimant did not raise any issues at this time that were related to the Equality Act or her age. [390 – 394].[14]The reason we have felt it necessary to set out this detail of the background is because the claimant, in her written and oral evidence, in her questions to the respondent witnesses and her submissions to the tribunal, said that something changed in 2020. Her case is that the only thing she can link it to is the fact that she reached retirement age (see paragraph 17 of her statement). She turned 65 on 18/7/2019).[15]What is clear to the tribunal is that there was evidence of increasingly difficult relationships between the claimant and Mr Hughes, as well as her other ASM colleagues from 2017, and she was raising grievances and issues with buildings from this point in time. The evidence before us is that the claimant was the one raising issues, not the respondent. Employment Advice Service[16]It is significant that the chronology of this claim largely spans the period of time when the UK was facing the Covid-19 pandemic. That caused significant disruption to working arrangements with people being instructed to work from home where possible. Social distancing created challenges to the management of office space. All of these factors permeate this case.[17]The respondent relies on funding from multiple sources, none of which is secure. Ms Lightup agreed with the tribunal’s description of the income being ‘hand to mouth’. Funding is therefore a continual struggle. Simultaneously recruitment is extremely difficult both in respect of employees and volunteers. Recruitment was particularly hard during the relevant period of this claim. They could not afford to lose the experience and skill set of the claimant.[18]In May 2020 the respondent applied for funding from the National Lottery. This was a Coronavirus Community Support Fund. Although this has been described as funding for employment advice there is nothing in the bundle that suggests it was limited for that purpose. On 1 July 2020 the respondent received notification that they were successful in securing funding in the sum £20,659.[19]The respondent expected there to be an increase in specialist advice sought in respect of employment issues. The tribunal accept this was a genuine expectation and takes judicial notice; given businesses were shut, and the furlough scheme was in operation but under review there was an expectation of an increased number of redundancies, or decisions around home working and furlough that would lead to an increase in employment tribunal claims.[20]The claimant’s initial post with the CAB was as a Development Worker (Employment Advice) [210] and in 2014 the claimant gained a Masters in Industrial Relations and Employment Law. She was an obvious candidate for the provision of employment advice and guidance.[21]It is not entirely clear how the role was allocated to the claimant, or what discussions took place. Certainly, discussions were taking place in early May 2020 and between the Claimant and Elaine Kenny. On 11 May 2020 the claimant emailed Ms Kenny with the following: “If it would help, I would take on employment inquiries which need more exploration. However, at this stage I should like to work under my current employment contract since it is a permanent contract with over five years continuity of service. I have an open mind in respect of your proposals last week, but in all fairness, I would like to see what the structure of the service looks like moving forward post pandemic” [397] .[22]On the same day, Miss Kenny responds “I don't understand what you mean in relation to working under your current contract, so maybe we can discuss this further. All our ASM's are currently answering phone calls a there is no. ASM work to do at the minute, to be honest. The discussion around the employment work was not to treat you differently to the other ASMS, but to incorporate other strengths into an area where we feel your skills would be better suited than on the phones doing generalist work. Going forward, as we talked about, I cannot see any way City Bureau will be returning to its previous Delivery method and as such we need to look at what everyone does once we can return to face to face delivery. The role for the employment was for a six-month period and was to bridge us through this. It would not mean any change to your contract, just an agreed change to duties of six months.” [399].[23]At a return to work meeting on the 14th of May 2020 It would appear that “various discussions have taken place at LH is happy to return to a role where she is taking the lead for employment work until we see what the future holds for our work and the working environment” [402] So from this point in time, the claimant was working from home, mostly dealing with employment cases. Would other staff employment work and she would provide weekly employment advice updates. She still did some volunteer supervision. And she would cover leave for other ASMs.[24]On the 6th of October 2020, Elaine Kenney, after a catch up with discussions with the Claimant, confirmed “that she will carry on employment work and some ASM duties. Remote supervision slash cover if needed. For the year April 21 to March 22, you were happy to do the employment work. We will constantly review...the work and its complexity (really hard to predict with what’s going on) and make changes if we need to. As discussed we are going to pursue the recruitment of another ASM/telephone supervisor to help supervise our telephone work and volunteers. Can you just reply to let me know you are in agreement” [407]. The claimant confirmed in an email that this was a correct summary of what they discussed [408].[25]It is clear at this point in time through to December 2020 that the claimant was still supervising volunteers. She writes an e-mail on the 9th of December 2020 concluding “I am fine with supervising the Tuesday volunteers, all volunteers on any other day. However. If a two tier ASM position exists, whereby the volunteers perceive a more active involvement than they expected from me and them only expecting feedback from Allie and James, I must say that I will follow instructions, but do not feel the situation to be a healthy one” [410].[26]The Claimant remained on the supervision of volunteers Rota see, for example, [412] and in April [416]. There was no removal of volunteers from the claimant. It is right to say that there was a change in days and numbers, but it is also right that this was a very fluid situation, and they sometimes moved days and supervisors (see [434] as an example).[27]At [413] Gareth noted the claimants wish to convene a meeting with the volunteers that she supervises. In his e-mail the 8th of January 2021, Mr. Hughes also says the following. “As we will be in lockdown for the foreseeable future and we will no doubt get more employment inquiries, I am more than happy for you to concentrate on employment work and Ally and James to pick up all the volunteer supervision- It's genuinely not an issue and I was simply trying to keep you involved in this work before you moved fully into the employment field in April, let me know”[28]The claimant relies on this e-mail as an intention by the respondent to move her into a full-time employment advisory role in April 2021. At several points in the hearing she returned to this e-mail as a foundation for her proposition that she did not know what her job was. Given how fluid the situation was we do not find this was confirmation of a full-time employment role.[29]In October 2020, Caroline Ellicott had calls to contact the claimant to tell her that an advice note hadn't been added to the case note system. The claimant responded to Caroline saying that they would be put on tomorrow. Caroline explained “That's good. But we need the notes on as soon as possible. Thanks.” The claimant confirmed what she had done, and saved the notes, but they were in draft [405]. Therefore the respondent raised issues with the claimant’s note keeping in October 2020.[30]Caroline picked up a case of Lesley’s for QAA 5/5/21 [430]. June 15th 2021 supervision meeting[31]On 15/6/21 a mid year supervision took place between Mr Hughes and the claimant. Several things were discussed at this meeting including issues around GDPR and reviewing volunteers' cases. Mr Hughes also raised with the claimant an issue about her not saving case notes to the CRM (client relationship management system). Caroline Ellicott had previously written to the claimant about saving case notes and [430/431, e.g].[32]If a case not is not saved to the CRM, and is left in draft form, then it cannot be accessed by other staff. It is clearly better for other staff to be able to have access to case notes for reviewing, quality assurance and potential for information to be lost unless saved. In order to emphasise the importance of saving onto the system Mr Hughes said “imagine what if something happened to you and what if you were run over by a bus, we would not know what happened to your work”.[33]The claimant says Mr Hughes did not refer to a bus, and he did refer to Trevor (her type 1 diabetic dog).[34]After the supervision the claimant wrote several emails all under the subject line “appraisal and consents should anything happen to me” [448]. She wrote: “Drafts - if you want me to have a case list that is OK. I have a list of closed WQ tasks but some Cl return outside of the WQ. In terms of something happening to me (I have copied Elaine in) - I have provided the passwords to my e-mail to Elaine...I have also spoken to my son – next of kin and Citizens Advice will be given full access to my IT equipment should something happen to me – much of my dialogue in extended enquiries is via e-mail and these would not be deleted until redundant”.[35]On 18 June 2021 in the same exchange she described the supervision as “a somewhat negative experience all round” and “I discussed your concerns in respect of I should anything happen to me with Phil and CA would be provided with access to my IT equipment as stated” [449].[36]By 28 June 2021 the claimant was disputing the content of the supervision notes (which we have not been shown a copy of) and asking how she should proceed “would the process be via an attachment of my recollections detailing my actual understanding of the issues raised in this meeting or via the grievance procedure” [450].[37]Mr Hughes interpreted this as a threat of a grievance. No grievance was raised.[38]We find Mr Hughes did say something along the lines of “imagine what if something happened to you and what if you were run over by a bus, we would not know what happened to your work”. This is a fairly commonly used expression to try and stress the importance of not leaving things unfinished and Mr Hughes said he would use such an expression irrespective of a person's age. When we returned to the part heard hearing the claimant said Mr Hughes resiled from having said anything about the bus, but our notes do not reflect her recollection. We find he made no reference whatsoever to Trevor.[39]Given the purpose and nature of the comment we accept that Mr Hughes would have said the same, or similar, to anyone regardless of their age, if he was trying to impress upon them the importance of keeping records up to date. The claimant, in her initial email exchanges, makes no reference to this being related to age or any reference to being offended. Whilst the tone of her emails does reflect discontent that is not limited to this comment, and it is obvious that she generally feels aggrieved about matters raised by Mr Hughes and only later does she complain about it. Telephone Supervisor Role and recruitment (Allegations 6.1.2 and 6.1.4)[40]On 26 April 2021 all the staff were sent an email attaching an advert for a vacancy for the Telephone and Digital Services Manager [421]. The intention was for this to build the delivery of the telephone service at Hope Library.[41]The respondent struggled to recruit to this role having run two unsuccessful recruitment campaigns.[42]On 17 June 2021 a Zoom ASM meeting was arranged for an update on the recruitment. The exchange of emails is a good example of how the claimant and respondent viewed one another and interacted. The invite email sent on 17/6/21 has the time of meeting as 03:45PM London [457]. The claimant replied after 5 minutes asking “what time is the meeting today – it looks like 03.45 pm London.........is that 15:45 this afternoon?[43]Privately Elaine Kenny says to Gareth Hughes “Omg, what”. He replies “Plot, lost, the”.[44]Any reasonable reader of the invite would know that the time for the meeting would be 15:45 not 3:45 in the morning. There is no sense that she was making a joke in her email. It reads as pedantry by the claimant and was clearly exasperating Mr Hughes and Ms Kenny.[45]The meeting did take place on the afternoon of the 17 June 2021. We do not accept the claimant was told not to apply for the role in this meeting. There had already been two failed campaigns to recruit to this role. They later re-ran the vacancy in August 2021 with an additional £3,000 for the additional work it would include [494]. It was the middle of the pandemic, there were significant difficulties with recruitment, there was no reason to discourage the claimant from applying. The claimant does not say in her statement that she was told not to apply for it (see paras 22 and 28).[46]At the same meeting there were discussions in general about recruitment. It was an agreed fact that the employees at CAB are generally over 40 with most of the staff we were told about in the hearing in the age range 55 to 65. The other ASMs for example were in that age range (Ali was mid 50s and James mid 60s). It is also agreed that there was a discussion around recruitment of younger employees and how that could be improved.[47]Although in the list of issues this discussion was said to have taken place in late August 2021 it must have been at this same meeting in June. That fits with the evidence of the claimant, Mr Hughes and Mr Kenny. Because they were talking about getting in younger people Elaine Kenny did say “I bet Lesley thinks we are all ageist”.[48]We do note that the claimant has repeated this allegation in her statement at (paragraph 28) as having taken place in June and (paragraph 70) in August. We find this was only said once. It is inherently unlikely that it would be said twice (and for the claimant not to comment on that). It is more likely that the claimant has transposed this comment to more than one event.[49]We accept Ms Kenny’s evidence that she apologised for this. Both she and the claimant describe the claimant’s discomfort in that meeting. We found Ms Kenny was credible on this. She had picked up on the claimant’s discomfort and tried to say sorry. We also note in the minutes of the grievance meeting in November that EK later apologised for [545] and again in the grievance meeting 17/12/21 [619]. Ms Ham was not the only person on that Zoom call who was in their mid 60s, so we do not accept that the comment was directed at her because of her age. She is the employment expert amongst the team, and so it was said because of that. It was unconnected to her age; it was related to her employment knowledge.[50]The claimant did not raise an issue about this comment at the time; it was not until her later grievance in November that she mentioned it. We find that is because she accepted Ms Kenny’s apology at the time. August 2021 issues with Esperanza and use of the word “duplicitous”[51]In August 2021 Esperanza was a trainee under the supervision of Ali. She is a Spanish speaker and so occasionally she made errors where there were language difficulties and/or was subject to clients being rude to her due to her accent. These were considered to be minor issues by Mr Hughes.[52]In the morning of 3/8/21 at 09:49am the claimant sent Caroline Ellicott an email asking if she had permission to listen to gateway recordings. Ms Ellicott responds (in summary) by saying she would have to ask Gareth when he returns from leave.[53]The claimant, not satisfied with that, emails Ms Elicott and explains the problem with the information recorded and ultimately, says that she sent a task to Esperanza “re: details recorded which were passed to Ali, and then James was asked if he could check”. The claimant says “I am getting different feedback from James and Ali” so she wanted to listen to the original call” [488].[54]Whilst the claimant is engaging with Ms Ellicott via email she also sent Ali Hunter and James King an email at 10.11 saying “Re: below...........somewhat duplicitous I would say.........not the account I had from James. I have requested consents to hear recordings myself” [483].[55]Both James and Ali appeared to be in agreement about the nature and content of the call and how to address it with Esperanza.[56]Ali emailed Caroline at 10:35 saying “I feel Lesley is taking this too far and has no need to listen to Esperanza’s call as myself and James have done so and agree on what we heard and found”.[57]In response to the claimant’s email on [488] Ms Ellicott tells her that “As Esperanza is supervised by Ali I will speak to Ali about it later in the week...I cannot see any benefit of you listening to this call, Ali informs James she and Hames already have and I’ll get their feedback later in the week” [488].[58]At 16:31 the claimant writes back to Caroline saying, “I feel at the sharp end of this situation and have concerns about duplicitous treatment of ASMs”.[59]The claimant therefore used duplicitous twice both to James and Ali and then to Caroline. Ali and Caroline felt that it was directed at them individually and was offensive.[60]The claimant confirmed in the hearing that she meant what she said and she stood by it. But it was unclear to us whether she did mean duplicitous given it seemed to be directed at three different people. In her statements she said “the situation had given rise to two double contradictory views”. What we are clear about is saying someone was ‘duplicitous’ is negative, far from complimentary and would generally be interpreted as being accused of being two faced. It is also clear from the exchange that Ali was upset by the whole thing, and the Claimant was not prepared to take on board what the other ASMs were saying, or what Ms Elicott was suggesting.[61]This issue was then discussed at a meeting on the 19/8/21. This meeting was arranged to discuss the level of employment work as they were moving to face to face sessions and also undergoing a review with the local authority. Elaine Kenny also wanted to discuss the email chain set out above.[62]Whilst the claimant asked that the two items were dealt with separately, they were dealt with at the same meeting under two separate agenda items.[63]The claimant alleges she was humiliated and degraded in this meeting. In her statements she says that she was, for the duration of the meeting, “shouted at humiliated and degraded by Elaine Kenny supported by Gareth Hughes. I believe that the intent was to make me feel worthless and irrelevant due to my age and usage of language with comments being made that I had deliberately used a word in a way that Ali would not understand. I understood this to by my old-fashioned usage”. We do not find that credible. She did not raise an issue about this until November, and in the notes of the meeting in November this is described as being ‘lambasted’.[64]The claimant has given no evidence about tone, or what was actually said to make her feel humiliated and degraded. She said virtually nothing about the meeting’s first agenda item which was to discuss her role. We thought Ms Kenny’s evidence was credible particularly where she described having to look the word duplicitous up and ask her son what it meant. Ms Kenny described the claimant smirking when she raised this in the meeting. When this was put to the claimant in evidence it was pointed out by Ms Clayton that the claimant had, in giving her evidence, smirked a handful of times. The claimant accepted she did do this. On the balance of probabilities, having had the benefit of watching and listening to both the claimant and Ms Kenny we preferred the evidence of Ms Kenny. She was particularly credible in respect of the apology which is reflected across numerous minutes later on (as part of the grievance). The claimant put to Elaine Kenny that she did not apologise, but we find the claimant is wrong in making this assertion based on the contemporaneous documents which include the claimant noting Elaine Kenny apologising. Review of the Claimant’s Employment Advisor work[65]In or around August 2021 it became apparent there was less employment work than had been expected, but also that the claimant was doing less employment work than her case files suggested.[66]The respondent wanted the claimant to return to face to face work. By this point in time her original place of work (Salford City) had closed. This is the respondent’s busiest bureau, and they needed to offer another location, near to City so that the footfall of client’s could easily be diverted nearby. They settled on Pendleton Gateway (a gateway venue being a building, primarily PFI, from which the local authority and other community based universal services operate from such as GP, library, housing support, pharmacy etc). It was agreed there was no other gateway building near or nearer to City that the respondent could have chosen.[67]A meeting took place on the 9 September 2021 to discuss the claimant’s role and duties. At this stage the claimant was doing 3 days employment advice work and 1 day supervising volunteers. When they met Elaine Kenny told the claimant, having reviewed the situation, there was only enough employment advice work to fill 2 days.[68]After the meeting, on 13 September 2021, Ms Kenny sent the claimant a document titled “Going Forward”. In it she explains the origin of the claimant’s employment duties: “you will remember we met and discussed options and you were happy to deliver the employment work however you wanted to maintain your ASM role and as such you undertook telephone supervision and cover alongside the employment advice” [499]. They set out the reduction in employment work and that “we are looking to explore whether we are able to deliver some employment advice on a 2 day basis leaving the remaining 2 days of your week for your ASM duties. My intention was to explore with you how feasible this was...as requested I have detailed below the scenarios” Ms Kenny then set out 3 scenarios, including a return to ASM only.[69]The claimant set out a written response to these scenarios on 22 September 2021 in a 5 page document. Ms Ham is right when she says she did not refuse any of the options. She does set out her position and raise questions. She notes:a. Apart from a handful of weeks I have never had 4 days of employment work (she sets out the other type of work she was being given)b. She clearly sets out she enjoys working and wishes to continue working “it is the capacity in which I do this that I must reflect on”c. She notes the workforce working practices have changed due to the pandemic and going forward both employees and employers have been able to recognise the change to working practices. I do not feel that this is the case with my employer.d. I have provided both employment advice and ‘generalist advice’ for a considerable length of time and would wish to look at comparators in Salford Citizens advice in both terms of duties and terms of engagement in their totality.[70]Ms Kenny responded to this on 28 September 2021 initially setting out “I am really unclear as to what you are actually saying regarding going forward. I will however, try to answer some of the points raised”. The tribunal was also unclear what the claimant wanted at this point and for months afterwards. Ms Ham repeated on many occasions in submissions and in questions to witnesses the crux or nub of her case was “what was my job, what was my job?”. But it seemed to the tribunal that the respondent bent over backwards to try and explain to her she remained an ASM and they tried desperately to reassure her that had not and would not change. They did engage in lengthy discussions over the course of months in respect of duties, but the claimant did not then, and still does not now, accept that she had a job. We were at a loss to understand this given she was paid a salary in return for work and at no time was she idle.[71]Miss Kenny wrote: “Apologies Leslie, at this point I'm really unclear as to what you were saying. As I have outlined above and in our meetings, two things are happening, Firstly, a response to how we return to advice services which meet all clients needs and digital abilities while still being in a pandemic and secondly. Review of our advice, services and resources, which is being led by our funder. Neither of these are in our control. I have also outlined how it is really difficult to prescribe each appointment that may be booked in as we do not know and it is impossible to predict who will access us for advice and what their needs will be and how we can respond to them. I will take on board your comments and discuss with other senior managers as my real hope was that I could use your experience as an ASM and your understanding of clients at City to help us work through the best model going forward. I have also been really clear that City would not reopen as a drop in until January 2022. I am not at any time proposing a change to your working hours, so I'm not sure what this is in reference to. I feel that our genuine approach of trying to mix ASM and employment advice which I know you enjoy together has not worked in the way that it was intended. I am happy for you to revert back to your substantive role as an ASM at another site, which I feel from your comments in relation to city would be the only option, as you have stated you cannot return to city. I note that you were referencing a comparison to your ASM colleagues. Are you asking to revert to your position as an ASM, pre lockdown but not at city Bureau? To allow me to resolve this, can you explicitly tell me what you feel the role should look like?”[72]Notwithstanding Miss Kenny asking the claimant to explicitly set out what she wanted for her role going forward, in circumstances where the claimant was also complaining that she did not know what her job was, the Claimant did not respond to this invitation. At no time therefore did the claimant set out for the respondent what she understood her job to be, or what she wanted it to be.[73]On the 2nd of November 2021 as a consequence of a conversation that took place Miss Kenny provided the claimant with a job description and specification for an employment advisor role that they would be happy to offer. This role was a dedicated employment and advice role and as such was only 18. hours. On a slightly lower scale because there were no advice service manager responsibilities. In the letter, Miss Kenny says “we propose for this role to take effect from the 1st of January 2022. If you can, have a read through and come back to me by Monday the 15th with your initial thoughts please as I know we are both anxious to have a clear plan for 20/22.”[74]The claimant's response to this on the same day is “I am interested in some elements of the post but unfortunately not an 18 hours a week contract. Various reasons not least being What you're asking for cannot be done in 18 hours a week. Sorry for your efforts” [518].[75]Miss Kenny responds thanking the claimant for her quick response and then says to be honest I'm now out of options of roles. To offer you a summary, we have explored(1) A role involving employment advice and advice appointments to support the clients at City(2) an ASM role between the other two sites Eccles and Walkden(3) A dedicated employment role”. She therefore was going to send through a meeting for Tuesday the 16th of November to discuss the situation [519].[76]The job description for the 18 hours Employment Specialist role can be found [352] in the bundle. This was not the issuing of a new contract. This is not a contract of employment and at no time was the claimant provided with a new contract of employment.[77]On the 4th of November 2021, the claimant emailed Elaine Kenny Asking for a precise agenda for the proposed meeting. She also says: “I must point out that all of the options proposed so far place me in a very compromised circumstance which I have given to you as Deputy CEO in writing. I do not feel that any of my grievances have been addressed, as indeed is the situation with the grievances that I raised in 2020 when I was signed off. I'm not clear why my work is constantly being compared to the MAS work or the MAS contract, other than both roles involve providing advice, as does housing, consumer, immigration, etc. The two areas of advice, MAS and employment are not comparable. To be very honest. Elaine, I am beginning to feel bullied.”[78]The claimant also writes there are employees on time task related fixed term contracts which are being given priority over permanent employees and when it suits, with recruitment happening for younger employees whilst older employees are made to feel ‘redundant’ [ 527].[79]Because the claimant uses the phrase, ‘I'm beginning to feel bullied’ in the context where she also raises issues about her grievances not being addressed. Elaine Kenney forwarded this e-mail to Tom Togher saying: “I take this e-mail to be a grievance against me alleging bullying and would like it to be dealt with as such.”[80]In her claim, the claimant has alleged that this is a grievance and that it amounted to a protected act. In the hearing, the claimant alleged that she did not intend this to be a grievance, that it was not her who raised the grievance, but that it was Elaine Kenny who caused the grievance to be taken.[81]We consider that the tone and content of the e-mail sent on the 4th of November 2021 by the claimant was indeed a grievance. Had the respondent not treated it as such, we have no doubt that the claim would have complained that it was not taken as a grievance. The claimant subsequently writes by e-mail of the 9th of November 2021: “Thank you for the confirmation that the issues that I have raised are being considered under the grievance procedure. I have no problem with my grievances being considered at the informal stage of procedure, However, due to the duration and escalation of my situation, I feel that for me to present the matters in full, the time involved will not be quick.” She therefore did not take issue at the time with it being pursued as a grievance.[82]Because it was pursued as a grievance as being against Elain Kenny, the original meeting that she had anticipated taking place on the 16th of November could no longer take place.[83]Simultaneously, there were two matters that were being explored by Tom Togher. These included a breach of data protection and also a complaint that had been raised that Gareth Hughes had looked at in e-mail. On the 9th of November 2021, Tom wrote to the claimant to assure her. Of two things(a) that the GDPR breach was being dealt with under the disciplinary code but that his impression of the situation was that he would not envisage it leading to any disciplinary action, and also that it could be a fairly brief discussion. And(b) The complaint had already been determined by Gareth as not to uphold the complaint. As such, they would now regard the matter as closed.[84]Therefore, there was no real disciplinary investigation started, and the respondent was at pains to reassure the claimant that neither of these matters were going to be pursued under the disciplinary policy.[85]A grievance meeting took place on the 11th of November 2021. This was attended by Tom Togher the claimant and Caroline Ellicott.[86]Though the claimant said in the hearing before us that there were no further discussions around her role, we find there were. At least part of the issues discussed at the grievance on the 11th of November included the nature of her role and what she perceived as a reduction in her hours. A second meeting was set up for the 18th of November 2021 to continue exploring the grievance in more depth. The respondent did not simply ignore the claimant.[87]On the 19th of November 2021, the claimant raised a formal grievance by email to Gareth Hughes when she was raising an issue about an appointment sheet, whether or not that was used only by her, and suggested that she was working in triplicate whereas her other colleagues were not. Mr. Hughes denied difference in treatment, saying that all staff were required to do the same. This matter was then added to her grievance when it was passed on to Tom Togher on the 22nd of November 2021 [574].[88]Due to the grievances the claimant’s line management was taken over by Caroline Ellicott.[89]A meeting took place on the 25th of November 2021 to deal with the second grievance brought by the claimant regarding Gareth Hughes’ instruction to use an appointment booking system.[90]In respect of the second element of the grievance the panel were able to reach a decision on the 7th of December 2021 finding that the instruction made by Gareth Hughes of the use of an appointment log was reasonable and they could see no evidence that Lesley was being treated any differently from any other case workers responsible for managing their own caseload. So, the decision was not to uphold that grievance.[91]In respect to the first grievance, there were two half days set aside for face to face grievance meetings on the 9th of December and then the 17th of December.[92]On 8 December 2021 the claimant indicated she will appeal the grievances (before she has been given an outcome from the first) but notes “the suggestion that I have is that I place the change to my contractual hours and age discrimination into ACAS since these are really the hub of the difficulties” [592]. Grievance Meeting 17/12/21[93]The claimant was told at this meeting that there was no intention to make anyone redundant, that there is no proposal or desire to reduce ASMs, that the options available to her in terms of roles included “any other ideas LH had to offer” [618]. Hence it is not correct to say there were no other discussions in respect of her job role. Employment Work Queue is disabled.[94]On 20 December 2021 the employment task list, or work queue, was disabled. Mr Hughes sent an email to all staff at 9:00am confirming that any member of staff can deliver generalist advice. The email contains guidelines on the level of advice that can and cannot be provided [621(a)].[95]On the same day at 2:39pm Caroline wrote “Further to Tom’s email about the halting of new employment work being briefly discussed after Friday 18th meeting, I said I said I would share my observations of some of your cases for reasoning as to why we considered it would be helpful to give you some time to follow up with your existing clients” [623].[96]At 15:33 on the 20 December 2021 the Claimant replied to Ms Ellicott including saying “At this stage I don’t wish to continue with Employment work for the reasons that I identified earlier today. There is not enough to complete advice and 4 checking systems re: task, key dates, case notes and diaries”. She ends the email with “Caroline, after 4+ months of punishing events....I really have no desire to take further punishment and attempt to complete the ever increasingly impossible tasks that I am presented with.”[97]On the evidence we have heard and read we consider the disabling of the employment queue was because the respondent understood that the claimant did not want to continue with the employment advice work. They reached that understanding from the claimant’s response to the job roles put to her, comments made in the grievance meetings, and the discussions that took place between her and Caroline (like in her email communication 21 December 2021 “Spoken to Lesley this morning re: the above , as its my last day at work today. Lesley reiterates a wish not to return to employment work” 626]). The claimant herself later describes it has her “decision to vacate employment advice” [652]. MAS training January 2022[98]All advisers who carry out debt advice needed to have completed MAS (Money Advice Service) training. It was a requirement under the funding arrangements.[99]On 23 December 2021 Mr Hughes wrote to the claimant stating the following: “ASM's, advisers and outreach workers are undertaking debt training in response to changes in MASDAP, whilst you were working through your employment caseload I didn't share the info below but this can now be started in the New Year. I have allocated you time in the first week of Jan to start this and will do the same in the second week. Caroline has created a training record specifically to record progress through the debt module. Please follow her instructions on using the template and please add the date completed in each module and after the soft skill and non debt modules. Note that this training will take approximately 3 full days of your time so please try to use the days or hours allocated by me on the rota.” [638][100]On 6 January 2022 Caroline Ellicot suggested a list of priorities with debt training second to last.[101]The claimant raised an issue on 4 January noting that she had been given a link for the training but she had only been allocated 14.5 hours to do it whereas it required 37 hours [637]. In response Mr Hughes said “It has proved to take less time than this, I allocated you half days to begin with as both Ali and James said they found full days difficult and preferred to split across days. I am more than happy to allocate full days on Thursday and Friday to debt training if you would prefer – please let me know” [638].[102]By February the funder abandoned that procurement and extended the existing arrangements meaning the MAS training was no longer required. The Claimant asked on 8 February 2022 that training was provided to all general advisers and ASMs apart from her and asked why. Ms Kenny told her that “all staff have not yet completed the training and given the full allotted time. Circumstances around the funding have changed and priorities for workload too, please can you work on the WQ for Friday and you will be given time for the training in due course” [747]. 6 January 2022 ASM Role[103]Tom Togher confirmed to the claimant that she would be the ASM at Pendleton Gateway, this would involve changing days of service and recruiting volunteers. So initially, before Pendleton Gateway was properly up and running her ASM duties were to be carried out remotely. January 2022 and Grievance Interviews[104]Tom Togher interviewed Elaine Kenny as part of the grievances raised by the claimant. The meeting took 1 hour 40 minutes. At the meeting on the 12 January 2022 Elaine was raising issues that the claimant had “no respect for management” “LH failure to follow reasonable instructions has created this grievance”. Ms Kenny’s companion noted “it is a fundamental principle of terms and conditions of an employment contract to comply with and follow a reasonable instruction by an employer. LH had been uncooperative throughout the notes” [675].[105]The claimant’s claim is that the investigation notes contained derogatory comments. In her statement the claimant says “I was unable to question the content of their interview during the investigation notes which I aver contain erroneous and as such degrading comments about me personally for raising a grievance about age discrimination which are an offence to my dignity” (para 12). However, nothing about these notes was explored with any of the respondent’s witnesses. We cannot see anything in them that amounts to derogatory or discriminatory. We do note that Ms Kenny “feels that LH is bullying her. Sometimes LH reactions to instruction have caused EK to delay in instructing or following up on an instruction. Anticipating a voluminous of challenging response has led to LH having more favourable treatment” [676].[106]The claimant had a short period of sickness absence from 24 January 2022 to 4 February 2022 due to work related stress. A referral to Occupational Health was made prior to this period of absence with the respondent asking about appropriate roles for the claimant.[107]The claimant and the respondent had a very poor working relationship with the claimant feeling she was being challenged all the time. For example the exchange of emails on 10 February 2022:a. The claimant emails Elaine Kenny at 3:11 “Just picked up your email. I have worked through email list and made some phone calls from this list – worked from my car down the road whilst the internet was poor....”b. Ms Kenny responds by saying “If you are struggling with your internet, maybe working in the office may help tomorrow”.c. The claimant’s reply is “If you wish me to attend an office – where? I will need to be in a confidential space by 3.30pm tomorrow and as I understand it EE connections were/are poor across a lot of Gt Manchester. Please evidence that I had done less work than anybody else today or any other day please...........” (see 754 to 755]).[108]At no time was Elaine Kenny suggesting, or even implying, that the claimant had done less work. Her emails referenced everyone being given the same instruction regarding work queues. The reference to coming into the office was simply to address the issue the claimant raised about internet stability. The tribunal reached the conclusion that the claimant often viewed innocuous or innocent emails through a lense of mistrust and disrespect, which coloured her view of all interactions with Gareth Hughes, Elaine Kenny and Caroline Ellicott. Grievance Appeal Outcome Meeting 17/3/22[109]As part of the appeal the claimant was asked to identify what outcome she hoped for. The claimant said she wanted to know “just what is my job and if my substantive position no longer exists....what is the suitable alternative being offered moving forward” [778]. The appeal confirmed there was no proposal to reduce any hours and concluded “your substantive post as ASM for 29 hours a week is available for you”.[110]The respondent (Tom Togher and Sue Lightup) arranged a meeting with the claimant to discuss recommendations made arising from the appeal. Prior to this meeting the claimant wrote to Mr Togher on 11/3/22: “I am when my work day finishes placing my employment situation into ACAS Early Conciliation and I should know the conciliator’s contact details within 2 or working days [sic]. There has been a loss of trust and confidence due to the five plus months of meetings and processes – I am sorry for my inadequacies in communicating adequately in this respect, that said, the loss in trust is now a breakdown in trust. I am sorry, but I have never subscribed to, or have been supportive of degradation in the workplace” [783].[111]This was developed further by the claimant on 15 March 2022 when she wrote: I fear that you misunderstand Monday 14 March 22: Cover was not required on Monday 14 March 22 at Pendleton- it was a walkthrough agreed by yourself; I have placed my situation into ACAS- Age discrimination, harassment and victimisation. Along with session times which lead to breaches of the Working Time Regs re Statutory 20 min breaks during a 6 + hour day. I believe that the terms and conditions - some of the particulars of my contract have been altered and breached - again you can choose to engage in conciliation or Ican lodge the ET. [787] [sic].[112]Mr Togher’s response to this included: “We have not proposed any changes to your contract, duties or working hours. When working from home it is a requirement that you are available for work. The permission to work from home is granted entirely at our discretion and is subject to our operational needs and the need to cover service delivery. As you know staffing and service needs change every day, and we cannot always know when and how staff will be required to cover. Whilst we try to facilitate staff to work flexibly this is not always possible. Last week was a good example of how our staffing resources changed throughout the week”[113]In order to discuss the above and the outcome of the grievance appeal a meeting took place on 17/3/22 between the claimant, Tom Togher and Sue Lightup. At this meeting both Mr Togher and Ms Lightup assured the claimant she had a role, as an ASM and that was not going to change. They agreed the ASM job description was her substantive post. Some core elements would include developing Pendleton Gateway [802]. Mediation was also discussed at this point. The claimant indicated she would like to mediate and both Gareth Hughes and Elaine Kenny were going to meet with Ms Lightup in part to discuss this.[114]On 29 March 2022 the claimant wrote an email in response to the summary of the meeting on 17 March 2022 saying amongst other things: “At this point in time, I can only say that my working environment deteriorates day on day. Citizens Advice Salford, have not engaged with conciliation and the only option I have now to pursue the matter in the Employment Tribunal. With this in mind and the rejection of conciliation I fear that any attempt to engage in mediation will now be fruitless” [802].[115]The claimant on this occasion was invited to make suggestions or direct plans for volunteers to be recruited and how they could be deployed at Pendleton. The claimant declined to offer any suggestions or take the lead on this as she felt she was ‘being set up to fail’.[116]The respondent did not therefore make plans to progress mediation [803]. Section 111A Meeting 7 April 2022[117]In light of the above Sue Lightup wrote to the claimant on 5 April 2022 inviting her to a meeting on 7 April 2022 for a “without prejudice conversation in relation to the current situation”.[118]At the meeting Sue Lightup had a pre prepared script (that had been prepared with the assistance of outside legal and HR support) [817]. Ms Lightup only got part way through reading the script before the claimant left the meeting.[119]The script included a list of concerns related to the claimant’s conduct and behaviour. It included failure to follow rules and procedures in addition to “you frequently question and challenge management instructions, this occurs on a daily basis with numerous challenges which take up substantial management time” and “you have asserted there has been a loss of trust and confidence by you in the management of the Bureau, without any appreciation of the effects that your requirements and approach have on colleagues and/or working environment”. The respondent wanted to put the claimant on notice that if a settlement could not be reached then they would formally investigate these matters.[120]There was no agreement or settlement; the respondent did not get to the point of making a settlement offer. Disciplinary Action[121]Also on 7 April 2022 the claimant was invited to attend a disciplinary investigation meeting (as outlined in an earlier email of 29/3/22) to investigate 4 specific case notes and actions. It is right to say that the dates on which the tasks were incomplete were 11 February, 4 March, 25 February and 24 February.[122]On the face of it there was a delay in raising these issues with the claimant. Mr Togher said in evidence that he had confidence in his management team that they would have ensured these were dealt with at the time. By that he meant that management would have made sure there were no outstanding or urgent matters which would have impacted on the client. We can see other occasions where Caroline Ellicott has written to the claimant to remind her to finish tasks, but due to redaction we cannot tell if they are the same cases as highlighted in this investigation.[123]Mr Togher explained the delay in escalating matters due to him having been on annual leave for 2 weeks. That absence combined with catch up work on return meant there was in effect a delay of 3 weeks on his part.[124]We accept the delay was as a consequence of Mr Togher’s absence, together with the meetings in and around March, the email exchanges with the claimant regarding her job and grievance appeal outcome. There was a lot going on during this period and the delay is connected to that. It was not because these were ‘trumped up charges’ to induce a settlement.[125]We were persuaded by Mr Togher’s evidence that they would have held the section 111A meeting irrespective of these 4 allegations. The claimant by this point had clearly indicated her loss of trust and confidence in the respondent; that was spilling over into the working relationships.[126]The disciplinary investigation was conducted by Elaine Kenny. She concluded there should be no further action.[127]During the investigation meeting the claimant raised other employees who had similar non-compliance issues but they had not been subject to investigation or disciplinary action. Elaine Kenny, as part of her investigation did look into these [853]. Mr Hughes confirmed that he did raise the issues with the relevant employees (Ali Hunter and Mick Russell) he also noted he has changed the task list allocation [854].[128]In her outcome Ms Kenny also explained that she would take on the role of line managing the claimant and also sets out guidance for her role. She says “It is not open for debate or negotiation and sets out what we expect from the ASM role”. She further set out: “We are a small organization, with a limited management structure, but the work that we do is of key importance to Salford and its people. Especially at this time, our services have never been more important and you can be a key part of delivering help to some of the most vulnerable people in our society. I say this because the purpose of what we do can often be lost in dealing with matters such as this. We all have a common purpose and as I say above, I wanted to try and reset the working relationship and move forward from the current situation, if at all possible.” [867].[129]The claimant was sent guidance document dated the 5th of May 2022 [876]. The claimant responded to this document by saying the following.• The document appears to apply to an ASM working at Pendleton Gateway only, which is currently selective to me only.• The document is somewhat nebulous in nature.• I noted, once again, a change in shift start time which has not been agreed with me and is out with of my established contractual hours.• I await a more clearly defined document.[130]On 28 April 2022 the claimant issued her first employment tribunal claim.[131]On 16 May 2022 the claimant had an accident at work. She had a period of absence from 30 May 2022 until 26 June 2022. Although the claimant did put questions to some of the respondent’s witnesses about the lack of duty of care in respect of this accident it does not feature in her claim, on the list of issues, and it seemed to the tribunal her complaints went beyond matters that an employment tribunal has jurisdiction to consider and as such we do not consider it necessary to say anything more about this. 24 May 2022 ASM Meeting[132]A remote meeting took place chaired by Gareth Hughes and attended by Ali Hunter, James Kin, Jeanett Parish (this was her first meeting of this type) and the claimant. An invite to the meeting was sent on May the 12th, 2022. In response to the Zoom meeting invite, the claimant says “should the agenda be attached? I can't see it?”. Mr Hughes confirmed the agenda would follow. One was supplied shortly before the meeting.[133]As part of the discussions the ASMs talked about returning to face to face discussions, but the claimant declined to join in with this element of the meeting saying ‘pass’. Discussions moved on to recruitment, at which the claimant smirked or smiled, but it was perceived by Mr Hughes as rudeness directed towards him. He therefore asked if she wanted to say something.[134]This meeting was described in September 2022 by Mr Hughes as ‘unpleasant’ and Ali Hunter says the claimant was ‘ignorant’. The claimant says this description of her ‘negate to reflect on the whole meeting’ (para 73 of her statement).[135]We accept Mr Hughes’s version of events. It is supported by the contemporaneous documentation. Both Mr Hughes and Ms Hunter felt the need to apologise to Jeanett Parish about it. The claimant by this time did feel the respondent was against her, she had no faith in management, and she had raised several issues with Pendleton. She was dismissive and did smirk at Mr Hughes (something we saw her do in evidence to Ms Clayton and something she accepts she might have done).[136]We do not accept that she was singled out or addressed rudely and aggressively by Mr Hughes. 18 uly 2022 Grievance[137]On the 18 July 2022 the claimant raised a formal grievance [1019] the claimant set out “I raise a formal grievance in respect of deployment and duties on Mon 18 July 22. I have already set out my issues and will further document”. Although the tribunal was not referred to a document (and Tom Togher chased one, we can see from exchanges of emails and the subsequent meeting notes that she was complaining about James King being ‘placed at Pendleton’ and that was an “active demotion of me and my duties” [1033]. She has variously referred to this as James King ‘taking over her ASM duties” [1032] and demotion by default.[138]Tom Togher sent the claimant an email on 8 August 2022 setting out his understanding of the areas of grievance. He took this from various emails the claimant had sent between 15 July and 5 August [1053][139]A grievance meeting took place on 12 August 2022. The claimant did not take issue with the notes of this meeting in the bundle. In that meeting she complains that she is not treated as an ASM and says there is little respect for her. She felt that James came in on the 18 July 2022 and took over the job she regularly did, placing her in the role of an advisor not an ASM. Mr Togher had a list of pre-prepared questions for the claimant (and others for the grievance investigation). The claimant took objection to this and at one point in the grievance said: “I am going to stop the interview now because unless I've got a copy of the questions, I'm not going to continue with it. I'm sorry, that's demeaning in itself, unless I have a copy of the questions to look at, I'm not going to continue, You've got several pages there, Tom, and I'm just not going to do it.” [1071][140]She was provided with a list of the questions in the meeting, and it carried on. Tom Togher described in his evidence finding the claimant to be hostile. An example of this can be seen in the exchange at [1087] when the claimant gave a very lengthy answer to a question and she repeated information she had previously given (both in this and the earlier grievance). Mr Togher, once the claimant had finished said he was concerned that the claimant may be re-iterating and before he could finish his sentence the claimant said “And that's what you've done all along through these questions. You've asked me this, so this is my answer. So either you want the answer to the question or not [sic]”. Later on when Mr. Togher is trying to clarify her answer the claimant says. No, Tom, you will listen to this because you've asked the question. Its for the tape.”. The tribunal found these notes surprising in terms of the claimant’s behaviour, which appears to be rude and offhand at best, and we therefore accept the description Mr Togher gives of this meeting.[141]When asked “so, how would you describe your working relationship with the senior management team in Citizens Advice Bureau?” The claimant responds. “Absolutely poor. I don't trust them”. She goes on to say, “Do I trust them generally? Well, no. There's one puppeteer in this organization. And that's it.”[142]On 1 September 2022 the claimant emailed with further grievances to be added. She wrote “in light of the current grievance investigation and further considerations in the matter which are all connected issues...my ongoing complaint is for age discrimination and victimisation and I should like to draw your attention to an email exchange on Wed 31 Aug 22 with Elaine Kenny who I have previously identified as a perpetrator of the alleged discrimination and victimisation” [1146].[143]This arose out of the actions taken by Elaine Kenny on 25 August 2022 when the claimant’s car broke down. Elaine Kenny asked Jeanette to remotely supervise Catherine and James. The claimant saw this as Ms Kenny giving preferential treatment to a younger employee because the claimant could also have remotely supervised the advisers.[144]We heard from Ms Kenny that when she said to the claimant she would have advised her to return home, this was to avoid the inconvenience of travelling given her car had broken down. She did not want to put the claimant to that inconvenience or extra cost.[145]As part of the grievance Tom Togher interviewed James King, Marjorie Magezie, Catherine Goodyear, Christian McKie, Elaine Kenny, Gareth Hughes and Ali Hunter.[146]Between the grievance meeting on 12 August 2022 and the subsequent email on 1 September 2022 the claimant’s issues were far wider ranging than simply the treatment of her on the 18 July 2022. She was complaining about the management of her, the deployment of staff, the way she was treated on 18 July and 25 July and how there was a discriminatory motive. She complained that the other ASMs were being treated differently. The tribunal struggled to understand the claimant’s criticism that the grievance only related to the 18 July 2022, when it most obviously did not. Had it been limited to that we would have expected a response to Mr Togher’s email on 8th August, and her responses to the questions in the meeting itself to have made that clear. Meeting 22 September 2022[147]A Zoom meeting took place to discuss drop in sessions and client volume and a potential new way of managing client demand including a limit of client numbers and a call back system.[148]The claimant alleges she was subject to public humiliation at this meeting when Mr Hughes ignored her and then when a colleague tried to allow the claimant ‘in’ to speak Mr Hughes said “her again.....she always has something to say, too much to say”. Mr Hughes also describes this meeting as being difficult, he said that he tried to allow all staff to contribute, but that when he chose another member of staff to speak over her she said he was being discriminatory.[149]Mr Hughes says that two members of staff messaged him about the meeting after it, and one offered to write a statement. We found this contemporaneous record very convincing. Mr Hughes could not have known when he prepared this document that the claimant would bring a claim in respect of this meeting. He did not send her the document, so he would not have known she would have sight of it.[150]Mr Hughes describes at various points in the bundle and his statement how difficult he found working with the claimant, to the point where it has made him quite unwell. We saw evidence of that in the witness box and it was plain to us that he has genuinely been very negatively affected by his experience. It is clear that the meeting on the 22 September 2022 was not a convivial one, but we find that it was the claimant’s conduct that made it difficult, not Mr Hughes. That is why two other members of staff raised a concern about it, and the description of the claimant’s behaviour by Mr Hughes correlates with her behaviour in the grievance meeting and her belief that the respondent was set against her. Missing Laptop[151]On or around 26 September 2022 the claimant and Mr Hughes both believed there was a missing laptop. The claimant felt she was being accused of misappropriating a laptop and Mr Hughes felt he was being accused of planting a laptop to make it appear as though the claimant had misappropriated it. The claimant was not invited to attend any disciplinary meetings about this, nor was Mr Hughes. We were not in a position to resolve who placed which laptop where, nor did we consider it necessary to do so. However, what was very obvious from the exchanges of emails around this topic together with the claimant and Mr Hughes’s witness statement is that the working relationship was exceedingly poor by this point in time. Grievance outcome and dismissal[152]On 6 October 2022 Mr Togher sent the claimant the outcome of the grievance together with the statements taken from staff. The claimant appealed the outcome an hour later.[153]We felt it necessary to set out the conclusion fully: “You have been very direct in what you have said to us, Elaine, Gareth and others about your views of us and the management of you and your role. We feel that it is equally as important for us to be direct with you about where we consider we find ourselves. We have spent a considerable amount of time trying to get to the bottom of things and to understand your position once and for all. We had a two hour meeting with you on 12 August to try and consider the position, a meeting which you said was “demeaning”. At the conclusion of the meeting you stated that you felt that the management of your grievance had been “inadequate” and “wholly irresponsible”. We wholeheartedly disagree with your view. We do not see any reasonable basis for you to sustainably hold that view. Your grievance raised important questions and we needed to fundamentally understand what the issues were so that we could determine a response to them. From our investigations with you our conclusion is clear - you do not like working from PGW and are fundamentally unhappy in doing that role. Our overall and abiding concern is that this arises out of a fundamental mistrust from you towards all aspects of your management by Citizens Advice Bureaux Salford. Having fully considered matters, that mistrust pervades your grievance and the way in which you approach your work and your interactions with management. When we met you stated a wish to be “treated with dignity” as a response to many of the six areas at issue. To be absolutely clear, we have found no evidence that you have not been treated with dignity by colleagues at Citizens Advice Bureaux Salford. However, what we have found (and have experienced ourselves) is your inability to understand anybody else's point of view, other than your own. We have also experienced (as have others) your willingness to express your dissatisfaction and to make often baseless allegations in emotive and accusatory language against colleagues at all levels. A prime example of this is your statement about me personally on 12 August (which reflected a previous comment by you in an email) that you feel I have taken personal satisfaction in recent issues in your private life and that I seemed to find it “funny” that you have been stalked. That statement was completely untrue and made without any basis and appears to have been said to deliberately offend me and to provoke a confrontation. Your approach to interactions Is fundamentally affecting trust in you across a range of colleagues and their ability to work with you. This is not linked to your age, nor to the fact that you have raised concerns regarding age discrimination, nor to the fact that you are currently bringing an age discrimination claim against Citizens Advice Bureaux Salford - issues which you have brought into discussions regarding this grievance. Citizens Advice Bureaux Salford is a charity providing a vital public service, with limited means in a really challenging environment. Our staff and volunteer body are our lifeblood and we need a common ethos. Your apparent resentment of being placed at PGW into the ASM role substantially affects your interactions with senior managers and within the wider ASM team. Through failing to engage and having a negative and disengaged attitude at ASM meetings, you have isolated yourself from the ASM cohort. We are satisfied that as a senior management team we have sought consistently to deal with you appropriately and by seeking to avoid conflict. The effect that your communications have had on Gareth means that he does not feel able, for the sake of his own health, to manage you. Elaine has stated that she considers herself to be in the same position. We believe that we have to therefore be very clear. We consider that your grievance, and the way in which you have positioned it is symptomatic of a working relationship which, as a consequence of your approach to colleagues, is fundamentally and irreconcilably broken. When we met on 12 August I personally took time to try and understand and get to the nub of the issues with you to see if they could be capable of resolution. My attempts to do so were viewed by you with mistrust and further show that a resolution of the situation is not possible in our view.”[154]Mr Togher felt the claimant’s appeal to her grievance should be concluded prior to any discussions being held around the issues raised in the outcome to the grievance in case the appeal panel overturned any of the findings made by him.[155]The grievance appeal meeting took place on 17 October 2022. The outcome of this was provided to the claimant on the 3 November 2022 and dismissed the appeal. As no specific complaints arise in respect of the appeal, we do not feel it necessary to set any further detail.[156]On 14 November 2022 the claimant was sent a letter inviting her to a meeting to consider whether the respondent would continue to employ the claimant or whether they should issue here with a notice of termination. The claimant was not required to work between the 14 November 2022 and the meeting on the 18 November 2022.[157]The claimant emailed on 15 November confirming receipt and her understanding that she was going to be dismissed on the 18 November. She also emailed on the 15 November saying “My attendance has been confirmed for the purpose of a formal dismissal hearing only. Given my suspension I would ask that confirmation is provided by return that my notice will be paid in lieu” [1322].[158]The meeting took place on the 18 November 2022, it was a fairly short meeting. The claimant said she felt like it was ‘the end of the conversation’ and that she could not alter the respondent’s mindset. She said “She had no other comment without the other side” which is something she also said in evidence. She likened it to a divorce, and said she could not repair the relationship on her own”. She said she felt like the decision had been made as long ago as 2021.[159]The records note the claimant “asked for pay in lieu of notice”.[160]The claimant’s dismissal was confirmed by a letter dated 22 November 2022. The reason for the dismissal was given as follows: 1. My decision is that it is appropriate to proceed to terminate your employment with Citizens Advice Bureaux Salford, as nothing that you raised with me on Friday changes my overall view that the working relationship is fundamentally and irretrievably broken down. As Chief Executive | have to look at what is best for the organisation overall and to balance its needs with the effects of any decisions that | make on you. The circumstances that | have had to deal with in relation to your grievances have been truly exceptional. | did not reach the conclusion that | did at the end of the grievance outcome lightly and | accept that my view of the situation and how it has arisen does not accord with your own. 2. It remains clear to me that you consider that issues started with the decisions taken at the end of 2020/2021. I do not agree. This situation is all about your clearly stated wish not to develop the Pendleton Gateway service and the approach that you have taken (for whatever reason) to your role thereafter and how you have managed your interactions with me and others with the organisation, particularly those of us in the senior management team. Those have included a number of hurtful comments, with the consistent thread being that you do not trust us or the decisions that we make. That break down of trust is clearly irretrievable on both sides”[161]The letter of dismissal notes “you asked on Friday that you would be paid in lieu of notice. I am prepared to agree to that request”. The claimant did reply to this letter by email on 24 November 2022 and she did not raise any issue with her PILON.[162]The claimant appealed the decision on 22 November 2022, but she does not take any issue, either procedurally or substantively and she does not allege any specific acts of discrimination arising out of the appeal. The appeal was dismissed on the 12 January 2022.
The Issues
[163]The tribunal had an agreed list of issues, given the length of the issues we have attached them as a schedule to this decision. We address each issue in the discussion and conclusion section below. The Law:[164]This case really turns on the facts we have found after hearing and seeing the witness evidence. The below provides the relevant statutory framework for the cases brought by the claimant. We have referenced some case law regarding SOSR dismissals.[165]Equality Act 2010 Section 13 Direct discrimination(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.(2) If the protected characteristic is age, A does not discriminate against B if A can show A's treatment of B to be a proportionate means of achieving a legitimate aim. Section 26 Harassment (1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect. Section 27 Victimisation (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.(3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.[166]Unfair Dismissal Section 98General. (1)In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a)the reason (or, if more than one, the principal reason) for the dismissal, and (b)that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. (4)[F5Where] the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— (a)depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b)shall be determined in accordance with equity and the substantial merits of the case[167]Ezsias v North Glamorgan NHS Trust [2011] IRLR 550. The tribunal found the reason for the dismissal was the fact of the breakdown of the claimant’s relationships at work and not his contribution to that breakdown, therefore the respondent did not dismiss the claimant because of his conduct in causing the relationship breakdown it was not unfair to not invoke the disciplinary procedure.[168]Alexis v Westminster Drug Project [2024] EAT 188 HHJ Shanks concluded that alternatives to dismissal and length of service were not relevant considerations where the relationship had irretrievably broken down.[169]Matthews v CGT IT UK [2024] EAT in what may be considered comparable background (See for example para 75 of the decision and the reason why the tribunal found it was a fair dismissal: the ET accepted that the reason for dismissal was the “irretrievable breakdown of trust and confidence in the working relationship.” The ET explained that they considered this was reasonable “in light of the Claimant’s repeated statements of a lack of trust in the respondent’s processes, HR and the organisation as a whole, his clear position that SE must be penalised in some way for the Claimant to be satisfied and move on and the deadlock parties had reached in trying to find an alternative solution after three months of trying.” (paragraph 136)). Judge Walker sets out the ratio as: “Where a dismissal was due to a breakdown in a working relationship, it was necessary, before deciding whether or not the dismissal was fair, to ascertain whether the employers had taken reasonable steps to try to improve the relationship; to establish that the dismissal was not unfair the employers had to show not only that there had been a breakdown, but that the breakdown was irremediable.” Judge Walker agreed that this does not mean that all reasonable steps must be taken by the employer. Submissions.[170]Ms Clayton provided the tribunal with written submissions which we have considered. Given they have been provided in writing we have not set them out here.[171]Ms Ham made oral submissions. Although they did not reference the issues (and we had often reminded her that was the list of issues we had to decide) her submissions were in summary:a. That she had no issues with her work until 2020; at that point in time she had reached retirement age and so the respondent set about pushing her out.b. Whilst there may be very little overt reference to age, this was a drip drip effect of a respondent who behaved in a way so as to make her surplus to requirements.c. She was being treated differently to the other ASMs and the question has to be why? The answer is her age. She felt like she had been left without a properly defined job, the respondent had tired to reduce her hours and when that was unsuccessful they were handing her duties on an ad hoc basis.d. The nub or crux of the case for the claimant is the lack of job, there was no job as an ASM. She submitted there was no dialogue whatsoever or preparation for Pendleton Gateway. Although her hours were not actually reduced she felt there was a threat they would be.e. The section 111A meeting is evidence that they were trying to put pressure on her, together with the micromanagement by Caroline.f. In respect of the PILON and unauthorised deduction from wages, she said she did not ask for PILON; if she had why would she appeal. Discussion and
Conclusion
[172]We considered that if we found that any of the Equality Act 2010 claims/allegations were made out as that may inform our decision in respect of unfair dismissal We therefore started by looking at the allegations of discrimination, victimisation and harassment. Direct Age Discrimination[173]Mr Hughes did say something along the lines of ‘what if something would happen to you’ we don’t think he mentioned Trevor. This is a fairly commonly used expression to make the point about information sharing. The context of this bus is therefore important, and it was being used to emphasise keeping case records up to date in circumstances where the claimant had been previously reminded of the need to do so.[174]We therefore do not find it would be reasonable for the claimant to perceive this as a detriment/disadvantage. Even if it was a disadvantage, we do not find it to be less favourable because we accepted that Mr Hughes would have said the same, or similar, to a person under age 65 in order to impress upon them the importance of uploading case notes to the CRM.[175]Elaine Kenny did say “I bet Lesley thinks were are all ageist”. We set out the context to this comment above. It was in respect of recruitment against the background of difficulty recruiting and the fact that a lot of staff are aged between 55 and 65. Ms Kenny apologised for making this comment afterwards, she felt she had ‘made a hash’ of it in the meeting.[176]We did not think this could reasonably be viewed as less favourable treatment when viewed objectively. It was a passing comment about Elaine Kenny’s discussion around recruitment not the claimant, Elaine Kenny was in effect challenging herself. But even if we are wrong about that, and it is less favourable, it was clear to us that the reason why Elaine Kenny made this comment was not because of the claimant’s age, but because she had expertise in employment law. We find that comment would have been made to another member of staff who had employment law experience and knowledge irrespective of their age.[177]Having listened to the claimant in evidence, and reading the bundle, the claimant gave us the impression that she felt the respondent employees were conspiring against her; that ‘someone’ (although she never said who) had decided to make her surplus to requirements. She therefore had a tendency to view every act as evidence of that conspiracy, even when objectively viewed they were not. This is one such incident when an innocuous comment has been alleged to be an act of discrimination.[178]This did not happen. At no time were her hours reduced. We were unclear why the list of issues and in her statement the claimant says November to December when in her evidence she said she thought the ‘new contract’ would start on 1 January 2022.[179]There was no new contract, there was no variation of contract and her hours were never reduced. The respondent had been at pains to work around the claimant and what she wanted to do, they met with her several times in particular 17 December 2021 at which point the claimant was assured of her role. It is incredible to suggest that the respondent was varying her contract and reducing her hours whilst simultaneously inviting her to explicitly set out what she saw her job to be. They would not have made that invitation if they were going to, or threaten to, reduce her hours.[180]The employment work queue was disabled, but this was due to the limited amount of work available and the claimant indicating she did not want to do the work. The claimant had not settled on working as an employment adviser over the preceding three months where Elaine Kenny had been trying to agree a role with the claimant. The claimant confirmed she did not want to do the employment work on the same day as the queue was disabled.[181]Any issues that existed at this point in time around the claimant’s role and the decision taken by the respondent in respect of work allocation was unconnected to the claimant’s age.[182]We did not find there was ‘micro-supervision’. The claimant’s claim was that on 21 December 2021 she was subject to unfounded criticism and micro supervision, but she did not take us to any particular document or specify what that was said to be, and there was nothing which we found that would fit this definition. Therefore this allegation fails.[183]The claimant was provided training time (as set out above). She was given some time to do it, albeit she identified that it was not as much as either MAS training suggested, and she says her colleagues were given longer. However, that does not seem to be correct “all staff have not yet completed the training and given the full allotted time” [747]. Further, we accepted the respondent’s evidence in respect of the funding requirements changing and so there was no longer a pressing need to do the training. She therefore was provided training time and this allegation fails. Even if she was not provided it, or as much as her colleagues, this was not less favourable treatment because of her age, rather she was returning to full ASM duties after having done a period of employment specialist advice. Allegation 5.2.7.[184]The claim, as identified in the agreed list of issues, is the “content of emails covering the time period late 2021 to 30 August 2022 comparing the claimant to a younger new service advice manager”. In her statement the claimant references(a) interview notes with Mr Hughes when he was spoken to about her grievance(b) an email from Elaine Kenny on 30/8/22 when the claimant’s car broke down and a follow up email on 31/8/22. There is no evidence that the claimant has referred to in emails covering the c12 months complained about.[185]When interviewed Mr Hughes did say “he had very little contact with JK and AH, whereas LH has sent hundreds of emails in the last few months. GH is very surprised by the basic nature of the queries, and felt this was totally disproportionate to the other JP, who was the least experienced, is beginning to be an independent decision maker in a role relatively new to her [1202]” .[186]This was said in the context of the claimant having raised a grievance during which he was asked “what level of interaction is there within the team of ASMs?” because the respondent was trying to resolve the claimant’s concerns about her role and deployment to Pendlteon Gateway. Mr Hughes tries to explain that there is a large volume of email traffic from Ms Ham, and this is not the same with other ASMs. He explained that he found communicating with the claimant very difficult. He said he dreaded “talking, emailing or any communication with LH as it is not constructive and in any way efficient” and “contact with LH is as remote as possible to protect GH mental health and wellbeing”.[187]Mr Hughes was very clearly negatively affected by his working relationship with the claimant. He was being asked about her role at Pendleton and as an ASM. In those circumstances any comparison he made is because of that line of enquiry by Mr Togher, and because he genuinely found the claimant challenging to line manage. We do not think he was comparing the claimant to a new ‘younger’ member of staff. He also compared her to Mr King who is in his mid 60s. He was simply trying to explain why his working relationship with the claimant was challenging, he would have made those same comments about her had she not been in the age bracket over 65, because it was her behaviour not her age that led him to make the remarks he did.[188]Regarding the emails sent by Ms Kenny after 25/8/22 we could find nothing in this that amounted to less favourable treatment. The claimant appeared to be complaining that Jeanette was asked to remotely supervise Catherine on a day when the claimant’s car broke down, so she was not in the office at the time she planned. She maintained that she was able to remotely supervise, so by passing that role to Jeanette they were ‘perferring’ a younger member of staff.[189]We do not agree that is what happened, we accepted Ms Kenny’s explanation that Jeanette was remotely supervising the volunteers because the claimant had not turned up for the session, due to her car breaking down, and she did not contact any of the senior management. The email chain [1135-1136] show that it was Jeanette who took on the role of supervision in absence of anyone else. Ms Kenny wrote “Catherine and James were supervised remotely by Jeanette” to which the claimant responded “Neither James or Catherine were supervised remotely by Jeanette...............that is most certainly factually incorrect and most offensive” [1136].[190]It was an agreed fact that the claimant did not attend on time, through no fault of her own. It is also agreed that she did not contact either Mr Hughes or Ms Kenny. In those circumstances, it is hardly surprising that another colleague would take on supervision (even if they were unaware the claimant was still doing it remotely). There is nothing ‘offensive’ or less favourable about the actions of the respondent or Jeanette on this day. It is not the preference of a younger member of staff.[191]For reasons set out below, we do not find the dismissal was because of the claimant’s age, or because she raised a grievance about bullying and discrimination. Direct Age Discrimination[192]The claimant has failed to establish facts from which in the absence of any other explanation point to a contravention of the Equality Act having occurred. Where the alleged acts did occur we find there were explanations unconnected with age and any other comparator would have been treated the same. The direct discrimination claim fails. Harassment related to age[193]Mr Hughes’s comment “what if something were to happen to you” was not age related, for the same reasons we have found it was not because of the claimant’s age. Whilst we recognise the tests are not the same and ‘related’ to can be a looser causal connection, here we find that it was not related to age but related to the need to upload case records and is an oftenused expression.[194]Even if it was related to age, and taking into account the claimant’s perception when we have considered the other matters in section 26(4) including the other circumstances of the case and whether it was reasonable for the conduct to have that effect, we find that the comment did not have the proscribed effect. It was in the context of a discussion about the importance of keeping records up to date, it is a fairly well used type of expression and so would not be reasonable for it to have the prescribed effect.[195]We did not find the allegation proven, we did not find the claimant was advised not to apply for the telephone role. This allegation fails.[196]We did not find that Elaine Kenny, supported by Gareth Hughes, humiliated and degraded the claimant. This allegation therefore fails.[197]Elaine Kenny did say “I bet Lesley all thinks we are ageist”. We did not think this could be described as ‘unwanted’ conduct given there were comments about trying to recruit younger staff, and the claimant was an employee who would point out conduct she felt was inappropriate. Elaine Kenny was trying to ‘cut it off at the pass’ rather than offend. We are also satisfied for the reasons set out above that Elaine Kenny apologised and the claimant said there was no need to, which suggests to us that this was a passing comment between colleagues rather than ‘unwanted’ conduct.[198]However, if it is unwanted conduct we concluded this was not related to her age, but related to her expertise in employment law, not least because she was not the only person in their 60s in the conversation.[199]Even if we are wrong about that and it is related to age we do not find it to have the prescribed effect. There is no ‘state of affairs’ and it is not an environment that a reasonable person would have found to be hostile, humiliating, degrading, intimidating, or offensive.[200]The claimant did not say what specifically it was about the interview notes that were derogatory and therefore age-related harassment. She seemed to be more upset about the process, and that the respondent chose to cast the net wider than she wanted. In her statement at paragraph 71 she states “I was unable to question the content of their interview during the investigation notes which I aver contain erroneous and as such degrading comments about me personally for raising a grievance about age discrimination which are an offence to my dignity” but that does not set out what age related harassing comments there were. In evidence she accepted that there was no specific age-related comment. We cannot find any comments that are age related.[201]The interviews were conducted because of the claimant’s grievance. Although at the hearing she said she was only raising a grievance about the 18/7/22 that is just not right, but even on the broader complaint she was not complaining about age discrimination. It was proper therefore that the respondent investigated her complaints and in doing so it is hard to see how the obtaining of statements in pursuit of resolving her grievance can be unwanted conduct.[202]In the circumstances, we have concluded there was no unwanted conduct, and the conduct was not age related, but part of an investigation into her grievance, this allegation fails. Allegation 6.1.6.[203]The claimant’s claim relates to emails that were sent privately between management, that were not intended to be seen by her, but that she received as part of a subject access request. The examples she relies on are:a. “It of course begs the question as to what she is actually going to do next week in return for us paying her if she is refusing to ASM”b. “Perhaps a week's leave might be the option given the seeming lack of employment work to finish and disinclination to complete the debt training or anything else we suggest.”c. “The points make less, and less sense don’t they”[204]The claimant describes these as hurtful and untrue, and vindictive and vitriolic.[205]We can see the argument made by Ms Clayton that these were not sent to the claimant, and it was never intended that she see them therefore it cannot be ‘unwanted conduct’. It is right to say that until a person is aware of comments (or is able to form a ‘perception’ to use the language of s 26(4)) then the conduct cannot be described as unwanted, nor can the mandatory requirements of section 26(4) be applied (see Adam Greasley-Adams v Royal Mail Group Limited EA-2021-SCO-000095) So, any harassment can only be assessed from the point in time the claimant became aware of the comments, but once she is aware, and has a perception that the comments have the prescribed effect, it is ‘unwanted’ conduct. We have therefore proceeded based on these emails being ‘unwanted’ from the point in time she became aware of them.[206]However, there is nothing from which we can conclude this was related to age. The emails were sent at a time when the claimant was engaged with Elaine Kenny and others about the nature of her role; we can see from the exchanges and from the evidence that it was increasingly difficult to understand what the claimant wanted by way of resolution. Indeed, that was still the case before us with the claimant accepting, she did not reply to Elaine Kenny’s offer to set out explicitly what she wanted and still not sure how to answer that question. These emails were related to trying to resolve what was becoming an increasingly difficult situation to manage. The emails do not make reference to her being of retirement age, either explicitly or implicitly. We do not accept that a comment about making less sense has anything to do with age; they did not for example suggest or even hint that age may be the reason for the lack of clarity. Therefore, this allegation fails because the comments are not related to age.[207]Had we needed to go on to consider whether they had the proscribed effect we would have found(a) the claimant’s perception was that they did(b) the context of them being made was in private conversation expressing exasperation about the challenges of managing the claimant in circumstances where they have offered her at least 4 options for her role going forward, against a background of building closures, covid restrictions, funding and recruitment difficulties and the claimant not responding to Elaine Kenny’s invitation to explicitly set out what she wanted and(c) reasonably viewed these comments may be unwanted and not positive, they do not create an environment that meets the proscribed definition.[208]We did not find that Mr Hughes did single the claimant out in the way alleged, therefore this allegation fails.[209]The claimant has not said what in these interviews is said to be harassment; we have not been referred to any particular comment or section of the interviews. In her statement she says “Colleagues were interviewed even when they were not involved in the grievance raised on 18/7/22. The interview questions trawled for ‘dirt’ on me and I was unable to question the content of the statements which in essence were used in my dismissal”[210]The first thing to note is the grievance raised by the claimant was not limited to the 18/7/22. Tom Tougher set out what he understood to be the claimant’s grievance which he had collated from her emails; it went far beyond 18/7/22 and there is no evidence to suggest the claimant said he was wrong in his summary (and so it is hard to see how investigating the grievance could be ‘unwanted’ conduct). It was for those reasons that the ‘scope’ of the grievance went beyond 18/7/22, not because they were seeking to trawl for dirt. They did not conduct the interviews because they were trying to find material they could use to dismiss the claimant due to her age.[211]There is nothing else we have seen, or been taken to, that relates any of this to age. The decision to conduct the interviews was related to the respondent’s understanding of the claimant’s grievance.[212]Therefore, this allegation fails.[213]This allegation fails because We did not find the claimant was publicly humiliated. Victimisation Protected Acts.[214]The first protected act relied on by the claimant is her threatening to raise a grievance during a mid year supervision on 15/6/21. In her statement at paragraph 85 the claimant confirms she raised concerns about Gareth Hughes’ comments at the meeting by email on 23/6/21.That email is at [454] in which she says “Thank you for your notes. Unfortunately, I am unable to agree with your recollection of the meeting and additionally your perception of ‘my understanding’ of the content of the meeting. Please advise how I should proceed in this regard? Would the process be via an attachment of my recollections detailing my actual understanding of the issues raised in this meeting or via the grievance procedure”.[215]The claimant did not set out any other evidence that she relied on beyond this. Mr Hughes forwarded the email to Mr Togher saying “she seems to be threatening a grievance”.[216]This does not meet any of the definitions of section 27(2). It could only be 27(2)(c) or (d) and we do not consider it to meet either of those. The claimant is not doing anything for the purposes of or connection with the Equality Act; she is raising an issue with people’s recollections about a supervision.[217]Nor is there anything in this exchange that amounts to an allegation (whether or not express) that the respondent has contravened the act.[218]The next protected act is the claimant raising a grievance on or around 2 November 2021 with Mr Togher relating to the removal of her ASM and reducing her hours. At the hearing the claimant’s evidence, her questions to the respondent and submissions to us all indicated that she did not raise a grievance, but one was initiated by Elaine Kenny. It was very unclear what the claimant really took issue with as it also seemed that she weas upset by the fact that Elaine Kenny wanted the claimant’s email of 4 November 2022 to treated as a grievance.[219]There is nothing in the email of 4 November 2022 that fits the definition of a protected act. Alleging bullying (or setting out that you are ‘beginning to feel bullied’) is not making an express or implied allegation that the respondent has contravened the act.[220]We did however note that when the claimant met Mr Togher on 11 November 2021 she referenced ‘ageism’ and recruitment of ‘younger’ staff. He summarised her grievance to include “6/ Ageism in the internal recruitment for ASM traineeship” and “2/selected for reduction in hours without comparable treatment with others”. He is also noted as sayging “age related grievances are about hours reduction, comment in the meeting about the role being for a younger person, and the ageist comment” We accepted that these are sufficient implied allegations that there has been contravention of the Equality Act. On the face of it she is raising a grievance about a reduction in hours which is related to her age, and not comparable to her colleagues, therefore she did a protected act on 11/11/21.[221]The third protected act is the bringing of proceedings 28 April 2022; it is accepted this is a protected act.[222]The fourth protected act is the raising of the grievance in July 2018. We do not find this to be a protected act. On 18/7/22 she wrote “I raise a formal grievance in respect of deployment and duties on Mon 18 July 22. I have already set out my issues and will further document” [1019] there is no other document. There is no reference to any matters that could amount to a contravention of the Equality Act in Mr Togher’s summary email of 8 August 2022 [1053]. Detriments[223]In light of the above any alleged detriment which occurred prior to 11 November 2021 cannot be because of a protected act. Therefore allegations 7.2.1, 7.2.2 and 7.2.3, all of which are alleged to have occurred prior to 11 November 2022 are bound to fail.[224]Was the claimant subjected to acts of micro supervision in December 2021? We have already found the claimant has provided no evidence of micro supervision on this date, and so this allegation fails.[225]Was the disciplinary process invoked as an incentive to accept a settlement of her claim? In presenting her claim the claimant focused on the 4 case recordings that were raised; she felt that they were being used to form a case against her whereas other staff had similar issues which were not escalated. She further noted the delay between the case note and them being escalated (around 3 weeks) as being suspicious, from which she drew an inference that they were ‘trumped up’ charges.[226]The claimant also at times did accept that these would have been investigated anyway, so her position was not entirely consistent.[227]In any event, we do not find that the respondent invoked the disciplinary process as an incentive to accept the settlement. The list of concerns that were going to be set out to the claimant, had she stayed at that meeting, included her challenging management and her statement that she had lost trust and confidence in the management. We accepted Mr Togher’s evidence that this meeting would have taken place irrespective of the 4 case recordings. Therefore, the respondent would still have said there were concerns about the claimant because she had made it absolutely clear that she had no trust in the respondent any more. It therefore is not surprising that they wanted to explore the possibility of settling her out of their employment and claim.[228]Despite the claimant repeatedly saying at the tribunal, and in emails at the time, that she was put through the disciplinary process, the respondent only ever conducted an investigation meeting with her about the 4 case recordings. The conclusion of that investigation was for no further action. Had the respondent wanted to create a ‘sham’ or ‘trumped up’ disciplinary case it could have done so, but it did not.[229]We do not find therefore, that the respondent was invoking the disciplinary process as an incentive for the claimant to accept a settlement.[230]The respondent did take issue with the claimant checking/accessing the respondent’s system whilst she was on annual leave or on a non-working day. We do not find that she had any ‘allegations’ made against her, certainly she was never investigated or disciplined for accessing the system.[231]The reason for this being raised was because other staff felt that they were being checked up on and the claimant had been asked not to do it, but she continued to. She was therefore making other staff feel like they were being watched and she was failing to comply with a management instruction. It was unconnected to her doing any protected act.[232]The claimant failed to evidence that she was vilified and ignored when she tried to discuss the limitations of Pendleton Gateway. There were general discussions around the provision of the space at Pendleton Gateway and it is right that the claimant was dissatisfied with the provision. The claimant spent a lot of time questioning the respondent witnesses about the space, number of private offices, ability to store items, agile working and availability of services at Pendleton compared with Walkden and Eccles. It was absolutely plain that the claimant did not feel Pendleton was workable. However, it was all that was available and the claimant accepted that in the hearing. There were no other Gateway buildings in the same area that could have been used. The respondent does not have the luxury of being able to rent other buildings given its limited resources and the nature of the service it offers which are suited to Gateway locations.[233]The respondent witnesses, in particular Mr Togher, explained that the role of an ASM is to negotiate better use of the space. He does it at a higher level with the Local Authority and he needs the ASMs to do it on a local scale. That cannot happen overnight and has taken a long time at other sites. It may well be therefore, that the respondent was fed up with the claimant repeatedly identifying the problems with Pendleton, but not seemingly being part of the solution, in circumstances when there is no alternative. We do not find that she was vilified or ignored at all, and certainly not because she did a protected act.[234]As set out above Gareth Hughes does say the claimant has sent hundreds of emails in the last few months, but we can find nothing in his statement that could be described as isolation and ridicule. He describes the emails from the claimant as combative and being more about general unhappiness than specific issues and we do not find that to be a ridiculing description.[235]The reason for this being said at all is to investigate the claimant’s grievance (which was not a protected act) and so it is in response to that. We do not find it is connected to any protected act. We accepted that Mr Hughes found line managing the claimant extremely challenging to the point it made him unwell. He is simply recounting, in very moderate terms, his experience.[236]In respect of the other exchanges of emails between managers (set out in paragraph 93 of the claimant’s statement) they are:a. 23/2/21 which cannot possibly be because of a protected act. It predates the claimant’s own case that the first protected act was 15/6/21.b. 28/7/21 which pre-dates the protected act as we have found.c. The list of issues also refers to December 21, but the claimant has not set that out in her statement and so has produced no evidence of it.[237]The exchanges above cannot be because she did a protected act because they occurred prior to any protected act being done. What they do demonstrate is a feeling in the respondent’s that the claimant was unable to follow instructions and had little or no confidence in the respondent, which was impacting on the working relationship.[238]We did not find that Mr Hughes singled the claimant out or addressed her in a rude or aggressive way as alleged so this allegation fails.[239]We did not find that the interviews conducted by Tom Tougher were used to trawl for dirt, see above. The reason for the interviews and the scope was the grievance raised by the claimant (which was not a protected act). The scope had been identified by Mr Togher as explained above, and so that was the cause for the interviews. This allegation fails.[240]As above, this allegation fails because we did not find the claimant was publicly humiliated.[241]The list of issues states “whether the claimant was subject to stress and consternation when investigated for the alleged misappropriation of a HP laptop”. We did not feel it necessary to resolve what happened to the lap top, but it was clear to us(a) there was no disciplinary investigation or allegation put to the claimant that she misappropriated the laptop and(b) both the claimant and Mr Hughes found this event to be stressful, confusing and upsetting. Mr Hughes because visibly distressed during the hearing at the point this came up in his evidence. The claimant was worried by his reaction to not wanting to put any more questions to him (at which point the tribunal put the questions as there were not many left).[242]Whatever happened in respect of the laptop, it was a symptom of a fundamental breakdown in the working relationship between the claimant and respondent. It was wholly unconnected to any protected act.[243]For the reasons set out below we did not find the claimant was dismissed because she did a protected act. We find she was dismissed because there had been an irretrievable breakdown in trust and confidence. Equality Act Claims[244]All of the claims brought by the claimant under the Equality Act 2010 fail. The claimant has not produced facts from which we could decide, absent any other explanation, that the respondent had contravened the act. Unfair Dismissal[245]The respondent asserts the reason for the claimant’s dismissal is some other substantial reason of a kind such as to justify the dismissal of the claimant holding the position she held (section 98(2)(b)). That being the irretrievable breakdown in trust and confidence.[246]We accept the evidence and submission of the respondent that they had never experienced anything like this before. There is no evidence before us to suggest the respondent has a habit of dismissing people for some other substantial reason. Our overall assessment of the totality of the evidence we have seen and heard is that both the claimant and the respondent had lost trust in each other.[247]We are alive to, and have considered carefully, the possibility that the respondent is using SOSR as a pretext to conceal the real reason for dismissal. In this case the claimant has alleged the real reason is because of her age; that she was surplus to requirements and the respondent wanted to get rid of her. The claimant has not asserted that it was a pretext for conduct or capability, but we have also considered that as part of our overall analysis.[248]Firstly, we conclude that the reason for the claimant’s dismissal was not because of her age, or her doing any protected act related to allegations of age discrimination. We have reached this conclusion because:a. The respondent needed the claimant, and her skill set. Recruitment to CAB is difficult, and we accepted the evidence of the respondent on this. The respondent had the work to cover, and they wanted to retain the claimant to do it. There is no evidence to conclude that they could have easily filled her vacancy with a younger member of staff or even promote a younger member of staff to her role. In those circumstances it makes no sense that they would want to dismiss her because of her age.b. Most of the respondent’s employees are over 55. The claimant worked alongside James King another ASM who was in his mid 60s and we were told about one employee who was around 69/70. Based on the evidence we were provided, the claimant did not stand out due to her age, we were not provided with any evidence from which we could draw an inference that they did not want her to remain employed due to her age.c. The respondent took time to understand and conclude grievances and appeals. We find they genuinely hoped to resolve the grievances so they could continue working with the claimant. The tribunal’s own experience was that, at times, it was unclear what the claimant sought or was complaining about and we can see the attempts made by the respondent to try and understand the claimant’s concerns. We do not think they would have done so had they simply wanted to dismiss her due to her age.d. The chronology of events does not support a victimisation dismissal. The claimant complains about the treatment of her long before she did a protected act (and before she turned 65). Both the claimant and Mr Hughes identify 2017 as the start of issues. In reality there were not years of excellent employment with no difficulties, which then suddenly changed when she hit 65. There had been one year of permanent employment prior to a decline in relations which became more and more challenging.[249]We have considered whether this is a conduct or capability dressed up but concluded not. Certainly, there is nothing to suggest that the claimant was underperforming to the level that would warrant dismissal. None of the respondent witnesses raised issues with her work to that degree. Whilst there were some issues around recording and uploading case records, it seems to be accepted by the respondent that these did not merit performance management. Had they wanted to use that as a reason to dismiss her why would Elaine Kenny not take that opportunity when asked to investigate the 4 case recordings?[250]Similarly, regarding the conduct of the claimant, there is nothing specific the claimant is said to have done that would be easy to categorise as misconduct and we have not been pointed to any evidence by the claimant that suggests this is a misconduct dismissal in disguise.[251]There is on the other hand a substantial amount of evidence that the working relationship had broken down including but not limited to:a. The claimant herself said she had lost “trust and confidence due to the five plus months of meetings and processes – I am sorry for my inadequacies in communicating adequately in this respect, that said, the loss in trust is now a breakdown in trust.” as early as March 2022.b. The claimant’s line management changed from Gareth Hughes to Caroline Ellicott to Elaine Kenny because Mr Hughes and Ms Ellicott found it so challenging to line manage the claimant. That was not because of performance but her repeatedly questioning and undermining decisions made by her line managers. On our reading of the emails, we accept the claimant question her line managers even when instructions were clear.c. The respondent had on several occasions sought to assuage the claimant’s concern that she had no role. She was told she did and that it was an ASM role. It may have looked different from when she was at City, but it was still the role of an ASM. At this point we note the contract which provides “Employees are required to be flexible to meet the changing needs of the bureau. You are also required, when requested, to undertake any other duties appropriate to the grade and nature of your job in order to meet the needs of the bureau. This may be on a permanent or temporary basis.” Any changes to her role were permissible under the contract. Given the impact of covid and the closure of buildings (City and Hope Library) changes to the way the work was delivered were inevitable. The claimant did not appear to accept that the delivery of the role was a strategic decision made by senior management, she continued to question the decisions and assert she had no role, including repeatedly asking for a job description. That made the working relationship impossible.d. The claimant’s responses to Tom Togher in the grievance made it impossible for the respondent to resolve the issues she was raising.e. The claimant at the meeting on 18/11/22 appears to accept the relationship has broken down; she did not seem to suggest everything was fine or repairable.[252]In terms of attempts to repair the relationship the respondent invited the claimant to name her job role, but she declined. It was going to suggest mediation, but that could not be achieved due to the sequence of events November 2021 the claimant’s grievance including a further grievance 18/11/21, 4 investigation meetings as part of that, outcome meetings of the grievance in January 2022, short periods of absence, grievance appeal, and appeal outcome, protected conversation, disciplinary investigation, an accident at work, a grievance in July 2022 and meetings around that, the issue of the missing lap top, the grievance outcome in October 2022 and appeal hearing in November 2022. Mediation was unrealistic in the circumstances and not offering it was not unreasonable. The claimant herself indicated she would pursue ACAS and so mediation would be ‘fruitless’.[253]We have taken into consideration the size and resources available to the respondent. This is not a big business. There are 36 employees and there were no other sites or roles the claimant could be put into to avoid being line managed by the people the claimant has raised issues about. She could not be moved department or geographic location. The respondent does not have the funds to find an alternative location or role for the claimant. It is a small charitable business with very limited resources.[254]It is clear to us that there was a breakdown in the relationship. The claimant lost trust in the respondent over the period September 2021 to March 2022. In doing so it became impossible for the respondent to manage her because she did not believe the respondent’s actions were genuine and she maintained her stance that she did not have a role and the duties she was being given were beneath the role of an ASM and Pendleton Gateway was not a suitable place to carry out the duties even though the respondent had no other option. The respondent tried over the months of November 2021 through the claimant’s grievances and up to November 2022 to reach a satisfactory position and reassure the claimant she had a role. The respondent therefore tried for over a year to remedy the breakdown, but it was unsuccessful.[255]The respondent did not have the resources available to it to offer any other remedy.[256]In all the circumstances, based on the evidence we have seen and heard, the respondent acted reasonably in treating the breakdown of the relationship as such a kind as to justify dismissal, there were no alternative options open to them, the dismissal was fair.[257]For the sake of completeness, the procedure was reasonable given this was an SOSR dismissal and so there being one meeting was sufficient on the facts of this case. Even if there were any procedural issues, they were rectified on appeal and the claimant confirmed she did not take issue with the appeal process. Failure to Provide Written Reasons for the dismissal[258]The claimant was provided with written reasons for her dismissal when the respondent sent it’s letter dated 22 November 2022 [1335]. It explains the reason for dismissal was the breakdown of trust which was clearly irretrievable on both sides citing both the issues at Pendleton Gateway and the claimant’s feeling that decisions had already been made in 2020/2021. The respondent therefore did explain the reason for its decision to dismiss. In light of our findings the reason given was true.[259]Therefore, this claim fails. Holiday Pay – unauthorised deduction from wages.[260]This claim cannot be brought under the working time regulations because of Regulation 14 which provides that a worker’s holiday entitlement is calculated up to the date of termination. This would therefore have to be brought as unauthorised deduction from wages or breach of contract.[261]We found the claimant did ask for her notice to be paid in lieu therefore she agreed to bring forward her effective date of termination which includes her ability to accrue holiday. Therefore, this claim fails. Conclusion[262]Having considered the factual matrix of the claim, there was an irretrievable breakdown in the working relationship between the claimant and respondent. The claimant herself made that abundantly clear over several months. She had lost trust in the management of the respondent, meaning anything they did to try and manage her resulted in more disputes and grievances. There was no connection to her age, at no time was she surplus to requirements. Her claims are not well founded and are dismissed.[263]Given our findings, we did not consider it necessary to consider issues relating to time limits. R Mellor