O Ruzieva v North Cumbria Integrated Care NHS Foundation Trust: 2403470/2023
EMPLOYMENT TRIBUNALS
Case No 2403470/2023
Between
O RuzievaClaimantNorth Cumbria Integrated Care NHS Foundation TrustRespondent
Before
Employment Judge BattenIn person for claimantA Crammond (instructed by Counsel) for respondentDate 12 December 2024
JUDGMENT
The unanimous judgment of the Tribunal is that the complaints of sex discrimination, race discrimination and religion/belief discrimination are not well-founded and are dismissed. JUDGMENT having been sent to the parties on 18 December 2024 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:
REASONS
[1]By a claim form presented on 16 March 2023, the claimant pursued complaints of race discrimination, religion and belief discrimination and sex discrimination. A response was filed on 27 April 2023. On 12 July 2023 there was a case management preliminary hearing before Employment Judge Porter at which a list of issues was finalised and which appears below, with certain additions which were discussed and agreed with the parties at the beginning of the final hearing.
Evidence
[2]The Tribunal was provided with an agreed bundle, comprising one lever arch file, 856 pages, to which the claimant added 4 additional documents at the final hearing together with extracts from the claimant’s diary which were copied and circulated, being a further 25 pages.[3]The Tribunal was provided with written witness statements from the claimant and her husband, Trevor Perry. The respondent called 7 witnesses to give evidence on its behalf, being: Amanda Dunkley, the respondent’s Assistant Director of People Services; Beth Woodall, who was the claimant’s first line manager and Onboarding and Pastoral Support Assistant at the material time up to December 2022, and thereafter was the Workforce Planning and Projects Lead; Angela Hodgkison, the respondent’s People Support Services Manager; Julie Thompson, Interim Principal Business Partner; Ann Forrest the respondent’s People Promise Manager; David Allen, the Assistant Director of People Support Services and Resolution Manager at the material time; and Dean Oliver, the respondent’s Director of Performance Planning and Strategy. All the witnesses tendered written witness statements and were subject to cross-examination.[4]In addition, on the second hearing day, the Tribunal issued a Witness Order for Jennifer McCall to attend the hearing on Monday 5 August 2024, to give oral evidence, which she did in compliance with the order. The Witness Order was issued because Ms McCall had been referred to regularly in documents and evidence and there was a significant dispute between the parties about what she said and/or did in relation to key events. It appeared to the Tribunal that Ms McCall could assist the Tribunal in resolving a number of conflicts of evidence Ms McCall still works for the respondent and was available to attend, hence the order was made.[5]In addition, the parties prepared an agreed cast list and an agreed chronology which was amended to include an email on 18 November 2022 about childcare. An organogram showing reporting lines and management responsibilities was also provided in the course of the hearing.[6]At the conclusion of the evidence, Counsel for the respondent tendered a written skeleton argument which he addressed on the respondent’s behalf. The claimant had prepared a summary of her case which she read out and expanded upon in oral submissions.
Issues to be determined
[7]At the beginning of the hearing, the Tribunal reviewed the list of issues with the parties. Following slight amendment, the issues to be determined by the Tribunal were agreed to be as follows.
Issues to be determined
[1]Jurisdiction 1.1. Does the Tribunal have jurisdiction to hear claims relating to incidents occurring on or before 16 November 2022 (and noting the below position of R as to the allegations later at the PH) or are they barred because they are out of time? In this regard: 1.1.1. Did any of the acts or omissions complained of occur on or before 16 November 2022? 1.1.2. If so, is there conduct extending over time, the end of which is within time? 1.2. If the acts or omissions is / are out of time, is it just and equitable to extend time to allow C to bring those claims?[2]Harassment related to sex – section 26 Equality Act 2010 (“EqA”) 2.1. Did the respondent do the following alleged things: 2.1.1. Refuse the claimant's request to work from home for emergency childcare; 2.1.2. Fail to reply to the claimant's emails and telephone messages to Beth Woodhall? 2.2 If so, was that unwanted conduct? 2.3 If so, was it related to sex? 2.4 Did the conduct have the purpose of violating the claimant's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant? 2.5 If not, did it have that effect? The Tribunal will take into account the claimant's perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.[3]Direct sex discrimination – section 13 EqA 3.1. What are the facts in relation to the following allegations: 3.1.1. The claimant's unsuccessful application for promotion to the position 3.1.2. The requirement that the claimant make a formal application for flexible working? 3.2. Did the claimant reasonably see the treatment as a detriment? 3.3. Was the Claimant subjected to less favourable treatment? 3.4. If so, has the claimant proven facts from which the Tribunal could conclude that in any of those respects the claimant was treated less favourably than someone in the same material circumstances of a different sex was or 3.4.1. The male candidate the claimant says was recruited to the post in September 2022; 3.4.2. Joshua Lancaster. 3.5. Are the above individuals appropriate comparators for the purposes of a direct sex discrimination claim? 3.6. If so, has the claimant also proven facts from which the Tribunal could conclude that the less favourable treatment was because of sex? 3.7. If so, has the respondent shown that there was no less favourable treatment because of sex?[4]Direct race discrimination – section 13 EqA 4.1. What are the facts in relation to the following allegations: 4.1.1. The claimant's unsuccessful application for promotion to the position 4.1.2. The requirement that the claimant make a formal application for flexible working; 4.1.3. The claimant's unsuccessful application for a Band 4 post in January 2023; 4.1.4. The termination of the claimant's secondment with the International Recruitment team in June 2023? 4.2. Did the claimant reasonably see the treatment as a detriment? 4.3. Was the Claimant subjected to less favourable treatment? 4.4. If so, has the claimant proven facts from which the Tribunal could conclude that in any of those respects the claimant was treated less favourably that someone in the same material circumstances of a different race was or 4.4.1. The male white British candidate the claimant says was recruited to the post of Workforce Planning Officer in September 2022; 4.4.2. Joshua Lancaster and Beth Woodhall (both white British); 4.4.3. The successful candidate in January 2023 Beverley Bennett (white British); 4.4.4. The white British worker who job shared with the claimant and who remained at work in the International recruitment team (Mary Atkinson). 4.5. Are the above individuals appropriate comparators for the purposes of a direct race discrimination claim? 4.6. If so, has the claimant also proven facts from which the Tribunal could conclude that the less favourable treatment was because of race? 4.7. If so, has the respondent shown that there was no less favourable treatment because of race?[5]Direct discrimination because of religion – section 13 EqA 5.1. What are the facts in relation to the following allegations: 5.1.1. The claimant's unsuccessful application for promotion to the position 5.1.2. The requirement that the claimant make a formal application for flexible working; 5.1.3. The claimant's unsuccessful application for a Band 4 post in January 2023? 5.2. Did the claimant reasonably see the treatment as a detriment? 5.3. Was the claimant subjected to less favourable treatment? 5.4. If so, has the claimant proven facts from which the Tribunal could conclude that in any of those respects the claimant was treated less favourably than someone in the same material circumstances of a different religion was or 5.4.1. The male white British and Christian candidate the claimant says was recruited to the post in September 2022; 5.4.2. Joshua Lancaster and Beth Woodhall (both white British and Christian); 5.4.3. The successful candidate in January 2023 Beverley Bennett, a Christian. 5.5. Are the above individuals appropriate comparators for the purposes of a direct discrimination claim on the grounds of religion? 5.6. If so, has the claimant also proven facts from which the Tribunal could conclude that the less favourable treatment was because of religion? 5.7. If so, has the respondent shown that there was no less favourable treatment because of religion?[6]Indirect race discrimination – section 19 EqA 6.1. A "PCP" is a provision, criterion or practice. Did the respondent have the following PCP: 6.1.1. Make the appointment in September 2022 using the requirement of being chatty and sociable? 6.2 If so, did the respondent apply the PCP to the claimant? 6.3 Did the respondent apply any such PCP to persons with whom the claimant does not share the characteristic of race, or would it have done so? 6.4 Did the PCP put persons with whom the claimant shares the characteristic, white/Asian at a particular disadvantage when compared with persons with whom the claimant does not share the characteristic, white British, in that people from a white/Asian ethnic background are quiet and are not chatty or sociable in the workplace? 6.5 If so, did the PCP put the claimant at that disadvantage? 6.6 If so, was the PCP a proportionate means of achieving a legitimate aim? The respondent says that its aims were (and without prejudice to the Respondent’s contention that there was no such PCP applied as alleged):6.6.1 ensuring that the successful candidate to the post of Workforce Planning Officer had the appropriate skills required to carry out the role to the expected standard; and/or6.6.2 the efficient and/or effective management of the Respondent’s workforce;6.6.3 and/or the efficient and/or effective management and/or delivery of the Respondent’s operations / business; and/or6.6.4 ensuring that appropriate persons / staff are appointed to the appropriate posts; and/or6.6.5 ensuring that the Respondent can attract and/or appoint and/or retain suitably skilled employees; and/or6.6.6 to ensure the appointment of the best candidates with the right values and behaviours whilst maintaining safe and effective recruitment activities / selection processes and/or which results in the recruitment of high calibre workforce free from bias and discrimination; 6.7 The Tribunal will decide in particular:6.7.1 Was the PCP an appropriate and reasonably necessary way to achieve those aims?6.7.2 Could something less discriminatory have been done instead?6.7.3 How should the needs of the claimant and the respondent be balanced?[7]Indirect discrimination relating to religion or religious belief – section 19 EqA 7.1. A "PCP" is a provision, criterion or practice. Did the respondent have the following PCP: 7.1.1. Make the appointment in September 2022 using the requirement of being chatty and sociable? 7.2 If so, did the respondent apply the PCP to the claimant? 7.3 If so, did the respondent apply the PCP to persons with whom the claimant does not share the characteristic of being a Muslim or would it have done so? 7.4 Did the PCP put persons with whom the claimant shares the characteristic, being a Muslim, at a particular disadvantage when compared with persons with whom the claimant does not share the characteristic, being Christian, in that people who are Muslim are quiet and not chatty or sociable in the workplace? 7.5 If so, did the PCP put the claimant at that disadvantage? 7.6 If so, was the PCP a proportionate means of achieving a legitimate aim? The respondent says that its aims were (and without prejudice to the Respondent’s contention that there was no such PCP applied as alleged):7.6.1 ensuring that the successful candidate to the post of Workforce Planning Officer had the appropriate skills required to carry out the role to the expected standard; and/or7.6.2 the efficient and/or effective management of the Respondent’s workforce;7.6.3 and/or the efficient and/or effective management and/or delivery of the Respondent’s operations / business; and/or7.6.4 ensuring that appropriate persons / staff are appointed to the appropriate posts; and/or7.6.5 ensuring that the Respondent can attract and/or appoint and/or retain suitably skilled employees; and/or7.6.6 to ensure the appointment of the best candidates with the right values and behaviours whilst maintaining safe and effective recruitment activities / selection processes and/or which results in the recruitment of high calibre workforce free from bias and discrimination; 7.7 The Tribunal will decide in particular:7.7.1 Was the PCP an appropriate and reasonably necessary way to achieve that aim?7.7.2 Could something less discriminatory have been done instead?7.7.3 How should the needs of the claimant and the respondent be balanced?[8]Victimisation – section 27 EqA 8.1. Did the claimant do a protected act as follows: 8.1.1. In or around mid-October 2022 inform Beth Woodhall verbally (later confirmed by email), that she believed she had been discriminated against when she was not appointed to the role of Workforce Planning Officer in September 2022 and that she was being bullied within the meaning of the Equality Act 2010? 8.1.2. In or around the end of November 2022 [or 1 December 2022], send an email to Beth Woodhall raising a grievance and allegations of discrimination, bullying and harassment within the meaning of the Equality Act 2010? 8.1.3. In January 2024 raise a formal grievance and allegations of discrimination, bullying and harassment within the meaning of the Equality Act 2010? 8.2. Did the respondent do the following things: 8.2.1. In November 2022 refuse the claimant's request to work additional hours; 8.2.1.1. If so, is the claimant barred from raising any complaint in relation to this because she is out of time? The claimant did not raise this in her original ET1, it was raised at the Preliminary Hearing on 10 July 2023 and the respondent says it is therefore out of time. 8.2.2. In November 2022 refuse the claimant's request to work one day at home to provide emergency cover for her small child; 8.2.3. Instruct the claimant to make a formal application for flexible working; 8.2.4. Refuse the request for flexible working in full; 8.2.5. Fail to appoint the claimant to the Band 4 post in January 2023; 8.2.6. Terminate the claimant's secondment in June 2023. 8.3. If so, by doing so, did it subject the claimant to a detriment? 8.4. If so, has the claimant proven facts from which the Tribunal could conclude that it was because the claimant did a protected act or because the respondent believed the claimant had done, or might do, a protected act? 8.5. If so, has the respondent shown that there was no contravention of section 27?[9]Remedy 9.1. Should the Tribunal to make a recommendation that the respondent take steps to reduce any adverse effect on the claimant? What should it recommend? 9.2. What financial losses has the discrimination caused the claimant? 9.3. Has the claimant taken reasonable steps to replace lost earnings, for example by looking for another job? 9.4. If not, for what period of loss should the claimant be compensated? 9.5. What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that? 9.6. Has the discrimination caused the claimant personal injury and how much compensation should be awarded for that? 9.7. Is there a chance that the claimant's employment would have ended in any event and/or she would have suffered losses in any event? If so, should their compensation be reduced as a result and to what extent? 9.8. Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply? 9.9. Did the respondent or the claimant unreasonably fail to comply with it by [specify breach]? 9.10. If so, is it just and equitable to increase or decrease any award payable to the claimant? 9.11. By what proportion, up to 25%? 9.12. Should interest be awarded? How much? Findings of fact 8. Ther Tribunal made the following findings of fact on the basis of the evidence before it, taking into account contemporaneous documents where they exist and the conduct of the parties at the time. Where there has been conflict of evidence the Tribunal resolved such on the balance of probabilities. 9. Having made findings of primary fact, the Tribunal considered what inferences it should draw from them for the purpose of making further findings of fact. The Tribunal have not simply considered each particular allegation but have also stood back to look at the totality of the circumstances to consider whether, taken together, they may represent an ongoing regime of discrimination.
Findings of fact
[10]The findings of fact relevant to the issues to be determined are as follows.[11]The claimant was employed by the respondent from 13 January 2016, initially in a Band 3 IT support role, working 30 hours per week. In 2021, the claimant gave birth to a daughter who started nursery from August 2022, whereupon the claimant returned to work.[12]On 8 August 2022, the claimant was seconded to the respondent’s international recruitment team which is part of the HR function of the respondent. The claimant worked under a fixed-term contract of 8 months’ duration (to expire on 8 April 2023) as an International Recruitment Supporter System, working 22 ½ hours per week. The contract appears in the bundle at page 329. The claimant worked on Wednesdays, Thursdays and Fridays each week, and so did not work Monday and Tuesdays.[13]In September 2022, the claimant applied for the post of Workforce Planning Officer at the respondent, which was also at Band 3, and she was shortlisted for interview which took place on 27 September 2022. Later that day, the claimant was told her application had been unsuccessful. Another individual was offered and accepted the position, but it was subsequently discovered that the appointee did not have the right to work in the United Kingdom and the job offer had to be withdrawn. The claimant was not appointed to the vacancy that materialised, because she had not scored well enough at her interview to be appointed.[14]In the period October to December 2022, the Workforce Planning Officer post was re-advertised 3 times and, in that time, the job title was changed to that of ‘Data Administrator’ in an effort to attract applicants. The claimant did not reapply.[15]On 5 October 2022, the claimant received feedback from Jennifer McCall, the Recruiting Manager for the Band 3 post, who had been on the interview panel. Ms McCall told the claimant that the other 2 members of the panel had scored her harshly, hence she had not been given the Band 3 position. Ms McCall also told the claimant that Mandy Annis had been put on the panel at Ms Dunkley’s direction. Jennifer McCall conveyed to the claimant the impression that the panel had been biased and that the respondent’s practices were somehow corrupt. The claimant was given to understand that the respondent’s practice should have been to automatically offer the post to the second graded candidate (the claimant) but that didn’t happen. The claimant was very upset to hear this and formed the view that Ms Dunkley was acting against her. The Tribunal was concerned to find that Ms McCall, who was the head of the interview panel, should think it was appropriate to discuss the panel members and the scoring with the claimant, effectively breaching confidentiality.[16]In fact, the Tribunal found that Ms Annis was put on the interview panel, not because of anything to do with the claimant; rather, her inclusion was so that the respondent might identify any unsuccessful applicants who were nevertheless strong candidates and who might be encouraged to apply for other positions at the respondent. This was because the respondent was constantly seeking to recruit employees.[17]On 2 November 2022, the claimant sent an email to Beth Woodall accusing Ms Dunkley of “unprofessional and vicious behaviour”, The claimant’s email appears in the bundle at page 370. The statement made by the claimant was not substantiated and, as far as the Tribunal could see, was without foundation.[18]The next day, 3 November 2022, Ms Woodall and the claimant had a meeting during which the claimant raised concerns about the costs of childcare, when working in the office. Ms Woodall explained that the claimant would need to secure a formal flexible working agreement in order for things to change and she asked the claimant if she wanted to submit a formal request for flexible working. Later, Ms Woodall sent the claimant a copy of the respondent’s flexible working policy so that the claimant could understand what she needed to do.[19]In evidence, the claimant referred to an excerpt from her diary – see the bundle, at page 371 - which lists the matters which the claimant said were discussed on 3 November 2022. These include “Complaint about Amanda D”. The claimant’s witness statement suggested that she did not actually know who Ms Dunkley was, but that she had been told of Ms Dunkley’s actions by Ms McCall. Nevertheless, based on what she had been told, the claimant described Ms Dunkley’s actions as “interferences”. Curiously, there was no other evidence to suggest that the claimant’s accusation against Ms Dunkley was in fact discussed or progressed on 3 November 2022, despite the seriousness of the claimant’s description in her email. The Tribunal was shown no notes of such an important matter or allegation being addressed, no notes taken or written up or kept by the respondent. Ms Woodall produced her own notes of the meeting, which appear in the bundle at page 613. These record a single suggestion, by the claimant, that Ms Dunkley had directed that staff be in the office between Christmas and the New Year. It was unclear what, if any, procedure was undertaken to investigate this concern. The Tribunal therefore concluded that nothing was done and that this failure to address the concern left the claimant to develop an animus to Ms Dunkley which was apparent from her evidence and submissions to the Tribunal, 2 years later.[20]At the start of the day on 9 November 2022, the claimant acknowledged receipt of the flexible working policy from Ms Woodall and requested to work from home from lunchtime onwards that day. Ms Woodall replied that the claimant must work in the office until her flexible working request was submitted. The claimant replied that she could not complete the application for flexible working via the respondent’s internal online system.[21]At the end of the day on 9 November 2022, the claimant asked for what she had viewed as an informal arrangement, for her to work from home from time to time, to remain in place and that was refused. The Tribunal found that there was no such ‘informal arrangement’ in existence for the claimant to work from home. Instead, what had happened was that the claimant had made a number of ad-hoc requests to work from home, often at very short notice. None of the claimant’s requests had, up until then, been refused and the claimant developed an expectation that she would be able to come and go as she pleased and work wherever she chose, whenever she chose. The respondent’s managers were struggling to deal with the claimant’s requests at short notice and to keep track of where the claimant might be and/or what work she was in fact doing. In those circumstances, the Tribunal considered that it made sense for the respondent to seek to formalise the claimant’s working pattern and whereabouts, by way of a formal arrangement. The respondent’s policy on flexible working provides for such a formal arrangement. In evidence, the respondent produced a table, which appears in the bundle at page 112, which shows that, in a period of 9 weeks, the claimant only attended the office on 3 or possibly 4 days. It was the respondent’s concern about the claimant’s working pattern in that 9-week period which led to a reasonable request for the claimant to complete a formal application.[22]On 11 November 2022, it was Ms Woodall who submitted a flexible working request on the claimant’s behalf. The Tribunal was at a loss to understand why a manger should do so but that is what happened.[23]On 18 November 2022, Ms Woodall emailed the claimant to say that they needed a face-to-face meeting about the flexible working request and that she had not been able to arrange one earlier because of personal issues and also because she had been working at a hospital in West Cumbria. Ms Woodhall asked the claimant for more details about her flexible working request - see the bundle at page 379.[24]The claimant replied in an email at page 378 of the bundle, raising childcare issues. The claimant’s child had apparently been taken out of nursery for a week, and the claimant needed time to sort a new nursery, and so the claimant requested to work from home including on Thursday 24 November 2022, in effect to cover childcare because her husband had work commitments elsewhere. Later that day, 18 November 2022, the claimant supplied further details of her flexible working request which appear in the bundle at page 381. In summary, the claimant’s reasons for wanting to work from home were that it would benefit her mental health, she would be able to spend more time with her 13-month-old daughter and she would save money on travel, so it would benefit the claimant financially.[25]Ms Woodall didn’t reply to the claimant until the next Wednesday, 23 November 2022. In evidence, the claimant has made much of this 5-day delay. However, the Tribunal found that, in reality, it made no difference; there was no prejudice to the claimant by such delay. Wednesday 23 November 2022 was in fact the claimant’s next working day and the claimant confirmed in evidence that she did not log-on or check work emails when she was not at work. Therefore, even if Ms Woodhall had replied sooner, the claimant would not have seen the reply until the Wednesday.[26]In the interim, on 22 November 2022, the claimant was shortlisted and interviewed for a Band 4 position of Project Co-Ordinator.[27]On 23 November 2022, the claimant emailed Ms Woodall to say that she needed to leave work because her daughter was unwell. The claimant also asked to work from home the next day, Thursday 24 November 2022. Ms Woodall replied on the Wednesday - see the bundle at page 383 – stating that there was no flexible working agreement in place and so the claimant’s hours would need to be worked in the office until her application was determined. This was a repeat of the advice the claimant had been given previously.[28]At 15:56 on 23 November 2022, the claimant replied to Ms Woodall, saying that she had left her no option but to take annual leave the following day - see the bundle at page 387. This was another late request.[29]On 24 November 2022, the claimant again emailed Ms Woodall about taking the 24 and 25 November 2022 as special leave, for the purpose of short-term emergency care for her daughter, who was by then moving nurseries. However, the claimant’s child had by then been out of nursery for 2 weeks. The Tribunal did not consider that the situation amounted to any sort of unforeseen emergency. Nevertheless, and for reasons unexplained, Ms Woodall granted the claimant 2 days’ special leave rather than insisting the claimant take annual leave. The Tribunal was then surprised to learn that the claimant subsequently complained that Ms Woodall had not told her that she had a right to take special leave. The Tribunal found that the claimant suffered no detriment and, in fact, the claimant already knew about her right to take special leave because she had taken it before, for example on 16 September 2022. The Tribunal therefore concluded that the situation was not emergency justifying special leave and that Ms Woodall was, in fact, doing the claimant a favour.[30]On 28 November 2022, the claimant was interviewed for the Project Co-Ordinator and assessed as unsuitable.[31]On 30 November 2022, the claimant met with Ms Woodall to discuss her flexible working request. Ms Woodall maintained that the claimant must work in the office until her flexible working application could be dealt with and approved. The claimant was very unhappy, and she went to her doctor and was signed off work, sick.[32]On 1 December 2022, the claimant emailed Ms Woodall summarising their discussions on 30 November 2022. The email appears in the bundle at page 412. In her email, the claimant suggested that, since 3 November 2022, Ms Woodall had pursued an aggressive approach of insisting that the claimant was present in the office and stated that this approach had caused the claimant to become stressed. Further, the email confirmed that the claimant had advised Ms Woodall, in their meeting, that she would be going off sick after the meeting, and that the reason would be work-related stress due to bullying and harassment. The Tribunal found the claimant’s behaviour to be reprehensible and a reaction to the fact that her request to work from home had been refused.[33]On 2 December 2022, the claimant messaged Ms Woodall to say that her child had Scarlett Fever. A proposed meeting was postponed as a result.[34]On 7 December 2022, the claimant asked Ms Woodall for the postponed meeting to be rescheduled to 15 or 16 December 2022. Therefore, on 15 December 2022, a sickness review meeting took place with the claimant, Ms Thompson and Ms Woodall. It included a referral of the claimant to occupational health, which appears in the bundle at page 421.[35]On 22 December 2022, a further meeting took place between the claimant and Ms Woodall together with a representative from HR, about the claimant’s flexible working request. The respondent’s managers offered to look at re-arranging the claimant’s hours over a 4-day week pending her flexible working application being dealt with, but the claimant was having none of it.[36]The following day, 23 December 2022, the claimant emailed Ms Woodall to complain about the handling of her flexible working request. In the claimant’s email, much is said about her wish to work from home. The claimant states that she did not want flexible working for childcare but gave no other reason. When questioned about this at the hearing, the claimant talked about childcare falling to women rather than men, wanting to spend more time with her daughter and about improving her work/life balance. Her explanation was couched in terms of time spent with the family and there being times when her husband could not look after their child at home because he was away with his work. In those circumstances, the Tribunal concluded, on the balance of probabilities, that the claimant’s wish to work from home was primarily motivated by arrangements for childcare and the cost of such.[37]On 30 December 2022, Ms Woodall reviewed the claimant’s flexible working request and decided to recommend it, in part and for a trial period. She therefore completed a business case proforma to that end.[38]On 1 January 2023, the claimant applied for the post of Onboarding and Pastoral Support Co-Ordinator, a position which was advertised and which, up to then, had been Ms Woodall’s job. The claimant was shortlisted on 4 January 2023.[39]On 3 January 2023, a Kelly Owens was offered the role of Data Administrator, a Band 3 post which had previously been called Workforce Planning Officer.[40]On 9 January 2023, the claimant’s request for flexible working was considered by the People Services senior management team. Page 607 of the bundle shows that the claimant’s application was to work three afternoons per week at home. In effect, this would be for 50% of the claimant’s working time, as the claimant worked three days per week. The senior management team accepted Ms Woodall’s business case and granted the claimant’s request, in part. The following day, the claimant was told by letter that her flexible working request was granted, in part and for a trial period of 3 months. The claimant was approved to work at home for 2 afternoons per week. It was proposed that the claimant would work in the office for a full day, on Wednesdays, and then on Thursday and Friday mornings from 9am to 12.30pm, with Thursday and Friday afternoons working at home from 1pm to 5pm. The grant was for a trial period of 6 weeks under the respondent’s flexible working policy. The relevant part of the policy appears in the bundle at page 281 onwards.[41]The claimant described her position to the Tribunal in terms of an ‘entitlement’ to work from home for 50% of her working time. In fact, the respondent’s policy, on page 291 of the bundle, states that 50% of an employee’s time working from home is the maximum allowable. The Tribunal found no entitlement to such. In any event, the claimant was off work, sick, at this time and so the proposal and trial period were not implemented.[42]On 18 January 2023, the claimant asked Ms Thompson to remove Ms Woodall from the interview panel for the Band 4 Onboarding and Pastoral Support CoOrdinator post and the request was refused.[43]On 19 January 2023, the claimant submitted an appeal against the outcome of her flexible working application.[44]The following day, the claimant was interviewed for the post of Onboarding and Pastoral Support Co-Ordinator. Ms Woodall was on the interview panel because she had been doing the job in the recent past. The interview was conducted faceto-face in the office. The claimant attended despite being signed off work, sick, and despite that she had been unable to attend other events by reason of her ill health.[45]Later that day, the claimant was told by Ms Thompson that she had not got the job, and feedback was offered to the claimant. The person appointed had 7 years’ experience in recruitment.[46]On 23 January 2023, the respondent convened an appeal hearing about the claimant’s flexible working application outcome. The claimant declined to attend, citing ill-health.[47]On 25 January 2023, Ms Thompson provided feedback to the claimant on her failure to be appointed to the Band 4 role.[48]Later that day, the claimant submitted a “formal complaint” by email, about the feedback she received on her unsuccessful interview for the Band 4 post. The claimant argued that the respondent had not given a valid reason for Ms Woodall being on the interview panel. Significantly, the claimant’s email included a statement to the effect that the claimant felt she had no choice but to request a return to her substantive IT post with immediate effect due to what the claimant alleged was “racial discriminatory behaviour”. The claimant did not specify what that allegation meant or to what it referred. The claimant also stated that she had grounds for constructive dismissal but without any particulars of what those grounds were. Nevertheless, the claimant did not resign and claim constructive dismissal. She remained off work, sick.[49]On 2 February 2023, there was a meeting between the claimant, Ms Dunkley and Ms Hodgkinson, under the respondent’s Resolution Policy, to consider the claimant’s complaints and concerns about Ms Woodall from 3 December onwards, and also her complaint about the interview for the Band 4 post. This was the first time that the claimant had met with Ms Dunkley. The meeting records show that matters were discussed in great detail and that the claimant was seeking compensation including for injury to feelings. In the course of the meeting, it became apparent that the claimant’s complaints involved Ms Dunkley because the claimant voiced concerns about Ms Dunkley’s conduct. As a result Ms Hodgkinson decided that it was not appropriate for Ms Dunkley to deal with the claimant’s complaint and that it should be passed to another senior manager to investigate. Eventually, Mr Allen was appointed to handle the matter.[50]On 16 February 2023, the claimant started early conciliation via ACAS.[51]On 20 February 2023, the claimant was asked to consent to an occupational health referral. She replied saying there was no point, and that she did not want to attend an appeal hearing whilst off work, sick, with stress.[52]On 23 February 2023, Mr Allen appointed Ms Forrest to investigate the claimant’s grievance. The claimant was interviewed on 8 March 2023.[53]On 9 March 2023, the Early Conciliation certificate was issued by ACAS and, on 16 March 2023, the claimant presented her claim to the Tribunal.[54]On 28 March 2023, Ms Woodall was interviewed for the grievance investigation along with Ms Thompson and, on 29 March 2023, Ms McCall was interviewed for the grievance investigation.[55]On 3 April 2023, the claimant emailed Ms Forrest with a list of concerns that she wanted to be investigated and, on 6 April 2023, Ms Dunkley was interviewed for the grievance investigation.[56]On 8 April 2023, the claimant’s secondment to the respondent’s international recruitment team ended after 8 months. The claimant had at all times been aware of the fixed term of her secondment. However, the secondment also came to an end because the NHS England funding ceased. In any event, the claimant was off work sick at the time, and she had expressed a very clear wish to returned to the IT department, having declared that she did not wish to continue working in people services. The claimant’s secondment therefore came to an end without objection or challenge from the claimant.[57]The claimant’s secondment had been under a job-share arrangement with a Mary Atkinson. Ms Atkinson remined employed in the international recruitment team, on a week-to-week basis because there was a significant backlog of work that had not been completed within the fixed term contract period. The backlog largely arose because of the claimant’s absence from work, sick.[58]On 21 April 2023, the grievance investigation report was submitted to Mr Allen, who met with the claimant on 24 May to discuss her grievance. The claimant raised additional issues, as a result of which Mr Allen asked Ms Forrest to interview Ms Mannis and Mr Lancaster. They were duly interviewed on 1 June 2023.[59]On 4 June 2023, the respondent advertised for an International Recruitment Support Assistant which was the job that the claimant had been doing on secondment to the international recruitment team, and it was again advertised on a fixed term contract or a secondment, for 15 hours per week. This was because the respondent had lately secured new funding for the post but only for a reduced amount of time per week. Ms Atkinson, who had previously job-shared with the claimant, applied and was appointed. The claimant did not apply.[60]On 8 June 2023, an addendum to the grievance investigation report was sent to Mr Allen and, on 9 June 2023, the claimant was told of the grievance outcome in writing. Mr Allen relied on the investigation conducted by Ms Forrest and thereby found no evidence of discrimination. The Tribunal was concerned that the claimant’s complaints may not in fact have been probed effectively by Mr Allen, particularly as, by this time, the claimant’s claim had been presented to the Tribunal and the respondent had already presented its response. The respondent knew that the Tribunal proceedings were up and running.[61]On 15 June 2023, the claimant appealed the grievance outcome and, on 20 July 2023, Mr Oliver heard the grievance appeal. On 22 July 2023, the grievance outcome was issued, turning down the claimant’s appeal.[62]On 1 October 2023, the claimant returned to work. This was at a point where the claimant was about to exhaust her sick pay entitlement entirely, and go onto nil pay.[63]On 23 November 2023, the claimant resigned giving a week’s notice because she had found a job elsewhere. Her last day of employment with the respondent, taking account of her notice period, was 30 November 2023.
The applicable law
[64]A concise statement of the applicable law is as follows. Discrimination[65]The complaints of sex, race and/or religious discrimination were brought under the Equality Act 2010 (“EqA”). Race is a relevant protected characteristic as set out in section 9 EqA. Religion or belief is a relevant protected characteristic as set out in section 10 EqA. Sex is a relevant protected characteristic as set out in section 11 EqA.[66]Section 39(2) EqA prohibits discrimination by an employer against an employee by subjecting her to a detriment. By section 109(1) EqA an employer is liable for the actions of its employees in the course of employment.[67]The EqA provides for a shifting burden of proof. Section 136(2) and (3) so far as is material provides as follows: (2) If there are facts from which the Court could decide in the absence of any other explanation that a person (A) contravened the provision concerned, the Court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision.[68]Consequently, it is for a claimant to establish facts from which the Tribunal can reasonably conclude that there has been a contravention of the EqA. If the claimant establishes those facts, the burden shifts to the respondent to show that there has been no contravention by, for example, identifying a different reason for the treatment.[69]In Hewage v Grampian Health Board [2012] IRLR 870 the Supreme Court approved guidance previously given by the Court of Appeal on how the burden of proof provision should apply. That guidance appears in Igen Limited v Wong [2005] ICR 931 and was supplemented in Madarassy v Nomura International plc [2007] ICR 867. Although the concept of the shifting burden of proof involves a two-stage process, that analysis should only be conducted once the Tribunal has heard all the evidence, including any explanation offered by the employer for the treatment in question. However, if in practice the Tribunal is able to make a firm finding as to the reason why a decision or action was taken, the burden of proof provision is unlikely to be material. Direct discrimination[70]Section 13 EqA provides that a person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. The relevant protected characteristics include race, religion and sex.[71]Section 23 EqA provides that on a comparison for the purposes of establishing less favourable treatment between B and others in a direct discrimination claim, there must be no material difference between the circumstances of B and of the comparator(s).[72]The effect of section 23 EqA as a whole is to ensure that any comparison made must be between situations which are genuinely comparable. The case law, however, makes it clear that it is not necessary for a claimant to have an actual comparator to succeed. The comparison can be with a hypothetical person not of the claimant’s race/religion/sex. In analysing whether an act or decision is tainted by discrimination, an Employment Tribunal may avoid disputes about the appropriate comparator by concentrating primarily on why the claimant was treated as she was, known as the “reason why” approach, in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11. Addressing the “reason why” involves consideration of the mental processes (whether conscious or subconscious) of the alleged discriminator, and it may be possible for the Tribunal to make a finding as to the reason why a person acted as he or she did without the need to concern itself with constructing a hypothetical comparator. If the protected characteristic (in this case, race, religion or sex) had any material influence on the decision, the treatment is “because of” that characteristic.[73]Very little direct discrimination is overt or even deliberate. In Anya v University of Oxford [2001] IRLR 377 CA guidance was given that Tribunals shall look for indicators from a time before or after the particular act which may demonstrate that an ostensibly fair-minded decision was or was not tainted by bias, in Anya racial bias. Discriminatory factors will, in general, emerge not from the act in question but from the surrounding circumstances and the previous history. Indirect discrimination[74]Section 19 EqA, so far as material, provides:(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a protected characteristic of B’s.(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if – (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) it puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim.[75]Section 23 EqA provides that on a comparison for the purposes of establishing less favourable treatment between B and others in an indirect discrimination claim, there must be no material difference between the circumstances of B’s case and those of the comparator(s). Harassment[76]Section 26 EqA provides that:(1) A person (A) harasses another (B) if- (a) A engages in unwanted conduct related to the 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(2) A also harasses B if- (a) A engages in unwanted behaviour of a sexual nature, and (b) the conduct has the purpose or effect referred to in subsection (1) (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.[77]The concept of harassment under the previous equality legislation was the subject of judicial interpretation and guidance by Mr. Justice Underhill in Richmond Pharmacology and Dhaliwal [2009] IRLR 336. The Tribunal has applied that guidance, namely: “There are three elements of liability(i) whether the employer engaged in unwanted conduct;(ii) whether the conduct either had (a) the purpose or (b) the effect of either violating the claimant's dignity or creating an adverse environment for her; and(iii) whether the conduct was on the grounds of the claimant's [protected characteristic].” Victimisation[78]Section 27 EqA provides that a person(a) (A) victimises another person(b) (B) if A subjects B to a detriment because:a. B does a protected act; orb. A believes B has done or may do a protected act.[79]A protected act includes making an allegation (whether or not express) that A or another person has contravened the Act.[80]In Martin v Devonshires Solicitors UKEAT/0086/10 Mr. Justice Underhill analysed the previous similar provisions as follows: “The question in any claim of victimisation is what was the “reason” that the respondent did the act complained of: If it was, wholly or in substantial part, that the claimant had done a protected act, he is liable for victimisation; and if not, not. In our view there will in principle be cases where an employer has dismissed an employee (or subjected him to some other detriment) in response to the doing of a protected act (say, a complaint of discrimination) but where he can, as a matter of common sense and common justice, say that the reason for the dismissal was not the complaint as such but some feature of it which can properly be treated as separable. The most straightforward example is where the reason relied on is the manner of the complaint.”[81]A claim of victimisation does not require any comparison. Answering the question of the ‘reason why’ involves consideration of the mental processes (whether conscious or subconscious) of the alleged discriminator to see whether the protected act had any material influence on the detrimental treatment; see for example Amnesty International v Ahmed [2009] IRLR 884. Time limits[82]The time limit for complaints of unlawful discrimination is found in section 123 EqA, which provides that such complaints may not be brought after the end of: -(a) the period of three months starting with the date of the act to which the complaint relates, or(b) such other period as the Employment Tribunal thinks just and equitable.[83]Conduct extending over a period of time is to be treated as done at the end of that period and a failure to do something is to be treated as occurring when the person in question decided on it, or does an act inconsistent with doing it, or on the expiry of the period in which that person might reasonably have been expected to do it. A continuing course of conduct might amount to an act extending over a period, in which case time runs from the last act in question.[84]In Robertson –v- Bexley Community Centre (T/A Leisure Link) [2003] IRLR 434 the Court of Appeal considered the application of the “just and equitable” extension and the extent of the discretion and concluded that the Employment Tribunal has a “wide ambit”. ACAS code of practice[85]The ACAS Code of Practice on Disciplinary and Grievance Procedures contains guidance on the procedures to be undertaken by employers in relation for example to conduct or performance. Although compliance with the ACAS Code is not a statutory requirement, a failure to follow the Code should be taken into account by a Tribunal when determining compensation which can be increased or reduced by up to 25% in a successful discrimination case.[86]In the course of submissions, the Tribunal was referred to a number of cases by the parties, as follows: Owen & Briggs v James [1982] IRLR 502 Bilka-Kaufhaus GmbH v Weber Von Hartz C:170/84 [1984] IRLR317 Rainey v Greater Glasgow Health Board [1987] IRLR 26 Jones v University of Manchester [1993] IRLR 218 Nagarajan v Agnew [1994] IRLR 61 Insitu Cleaning Co Limited v Heads [1995] IRLR 4 Nagarajan v London Regional Transport [1999] IRLR 572 Khan v Chief Constable of West Yorkshire [2001] UKHL 48 O’Donoghue v Redcar and Cleveland BC [2001] EWCA Civ 701 Scott v London Borough of Hillingdon [2001] EWCA Civ 2005 Chief Constable of West Yorkshire v Vento [2001] IRLR 124 Allonby v Accrington and Rossendale College [2001] IRLR 364 Hardys & Hansons plc v Lax [2005] IRLR 726 British Airways v Starmer [2005] IRLR 862 Watt v Ahsan [2008] IRLR 243 MacCulloch v ICI [2008] IRLR 846 South London Healthcare NHS Trust v Al-Rubeyi [2009] UKEAT/0269/09 Nazir and another v Asim [2010] ICR 1225 Central Manchester University Hospitals NHS FT v Browne [2011] UKEAT/0294/11 Homer v Chief Constable of West Yorkshire Police [2012] ICR 704 Seldon v Clarkson, Wright and Jakes [2012] IRLR 590 Lockwood v DWP [2013] IRLR 941 GMB Union v Henderson [2015] IRLR 451 Thompson v Central London Bus Company [2016] IRLR 9 Edomobi v La Retraite RC Girls School [2016] UKEAT/0180/16 Harrod v Chief Constable of West Midlands Police [2017] IRLR 539 Essop and others v The Home Office and others [ 2017] IRLR 558 United First Parcels Research v Carreras [2018] EWCA Civ 323 Pemberton v Inwood [2018] EWCA Civ 564 Bakkali v Greater Manchester Buses (South) Limited t/as Stage Coach Manchester [2018] IRLR 906 McNeil v HMRC [2019] IRLR 915 South Western Ambulance Service NHS FT v King [2019] UKEAT/0056/19 Adedeji v University Hospitals Birmingham NHS FT [2021] EWCA Civ 23[87]The Tribunal took these cases as guidance but not in substitution for the statutory provisions
Conclusions
[88]The Tribunal has applied its relevant findings of fact and the applicable law to reach the following conclusions. Harassment related to sex[89]In respect of this complaint the Tribunal first considered the 2 factual allegations relied upon. Allegation 2.1.1 in the list of issues is not particularised – a refusal of the claimant’s request to work from home for emergency childcare. From discussions with the claimant at the hearing, the Tribunal understood that the allegation was about the claimant’s request to take leave on 24 November 2022 – see paragraphs 24 and 25 above. The claimant had already booked 25 November 2022 off. The request for leave on 24 November 2022 was in fact made on 18 November 2022, so it was made a week in advance. In those circumstances, the Tribunal did not find the claimant’s request to be for an emergency, in the sense that emergencies are not known in advance; emergencies arise at the last minute. The claimant’s request was initially refused by Ms Woodall and the claimant was refused working from home. Ms Woodhall replied to the claimant on 23 November 2022, which was the next working day (for the claimant) after 18 November 2022. Ms Woodall said to the claimant, as she had previously, that the claimant needed to work in the office until her flexible working application was dealt with. In any event the claimant was granted special leave for the 24 November 2022 and so the Tribunal considered that the allegation that the claimant was refused a request to work from home for emergency childcare is not well founded.[90]Allegation 2.1.2 in the list of issues is that the respondent failed to reply to the claimant’s emails and telephone messages to Beth Woodhall. The Tribunal understood this to be about the same events as covered by allegation 2.1.1. The claimant’s complaint was in essence that Ms Woodall took 5 days, from 18 to 23 November 2022 to reply to her. In fact, 18 November 2022 was a Friday. The claimant emailed Ms Woodall that day at 3:37pm, at a time when the claimant knew that Ms Woodall was already having to deal with a family emergency and so was probably distracted and unlikely to be attending to work emails, if she was still working at all by then. The 19 and 20 November 2022 was a weekend. The claimant did not work on Mondays or Tuesdays, and she confirmed in evidence that she did not log-on to check work emails when she was not working. The claimant’s next working day was therefore Wednesday 23 November 2022. Ms Woodall did in fact reply to the claimant that day and so the allegation of a failure to reply is misconceived. Given that the claimant would not log-on or check her work emails if she was not working, it follows that, even if Ms Woodall had replied sooner within the 5 days, the claimant would not have picked up Ms Woodhall’s message until Wednesday 23 November 2022. In those circumstances, the Tribunal found no conduct upon which to base a complaint of harassment - any such conduct complained of did not amount to unwanted conduct; Ms Woodhall did reply to the claimant, who was granted leave. In any event, nothing as alleged amounted to unlawful harassment and did not relate to the claimant’s sex. Direct sex discrimination[91]This complaint is based on 2 factual allegations. The first is about the claimant’s unsuccessful application for the Band 3 post of Workforce Planning Officer in September 2022 – see paragraphs 13 and 14 above.[92]The claimant was interviewed on 27 September 2022, and she was told that day that her application was unsuccessful. Another individual was offered and accepted the post. The Tribunal found as a fact that the claimant was not appointed to the vacancy because she had not scored well enough to be appointed. The claimant’s communications and conversations with Ms McCall about the recruitment process did not help the claimant to understand why she had not been appointed – see paragraph 15. Ms McCall’s ‘feedback’ was of considerable concern to the Tribunal. It was apparent that the claimant and Ms McCall had conversed via social media messaging and the Tribunal noted the reluctance of both the claimant and Ms McCall to disclose any relevant messages to the Tribunal. Quite possibly this was because Ms McCall had overstepped her remit in speaking with the claimant as she did. In those circumstances, the Tribunal drew an inference that there was something to hide, perhaps something unprofessional or in breach of confidentiality, about such communications.[93]Whatever Ms McCall said had set the claimant off thinking that there was something untoward about the recruitment exercise. In the absence of evidence to refute such, the Tribunal considered that Ms McCall was at best bedevilling matters. Ms McCall was the appointed recruiting manager for the Band 3 post, and she was on the interview panel. The Tribunal was concerned to hear that Ms McCall had told the claimant that it was the other 2 members of the interview panel who had scored the claimant harshly, and that was why the claimant was not appointed. Ms McCall’s motive for disclosing such sensitive information was unclear. Ms McCall also told the claimant that Mandy Annis was on the interview panel at Ms Dunkley’s direction, thereby conveying to the claimant the impression that the panel was somehow “biased”. This was the word the claimant used to explain her view of the recruitment process. On a balance of probabilities, the Tribunal considered that this description, of bias, arose because of something Ms McCall had said to the claimant and the view stuck - later on, in respect of other interviews, the claimant used the same word.[94]Further, the Tribunal found that Ms McCall suggested to the claimant that the respondent’s practice was to automatically offer a vacancy to the second placed candidate, where an appointee was unable to take up a post. This was simply not correct and, naturally, when the claimant was not appointed, she became upset because she could not understand why she had not been given the post, and she felt badly treated. The claimant was adamant that she had seen emails and communications from Ms McCall to this effect, whilst Ms McCall claimed not to recall anything about their communications. In any event, neither the claimant nor Ms McCall have been willing or able to assist the Tribunal by providing copies of the messages in question. Ultimately, the Tribunal preferred the evidence of the claimant on this aspect to that of Ms McCall, there being no other reasonable explanation for how the claimant would know confidential details of the recruitment process or have any idea that a second placed candidate might be automatically offered a post.[95]The second factual allegation for the direct sex discrimination complaint was the respondent’s requirement that the claimant make a formal application for flexible working. This arose out of a meeting between Ms Woodall and the claimant on 3 November 2022 – see paragraph 18 above – and against a background of the claimant working from home on a regular but ad-hoc basis, often with late or lastminute requests which had been acceded to – see also paragraph 21. At the meeting, the claimant raised concerns about the cost of full-time childcare for working in the office. Ms Woodall reasonably suggested that a formal flexible working agreement should be sought and asked the claimant if she wanted to apply. Ms Woodhall then supplied the claimant with the respondent’s flexible working policy, for reference. It was also made clear to the claimant that no informal arrangement was in place and that, pending her application being approved, the claimant needed to work in the office, in accordance with the terms of her contract of employment.[96]The claimant had received the respondent’s policy by 9 November 2022. Despite the claimant having been reminded of the requirement to work to contract, in the office, nevertheless on 9 November 2002, the claimant once again asked to work from home. Ms Woodall once again had to remind the claimant that she was required to work in the office until her flexible working request had been submitted and dealt with. As the Tribunal has found, there was no existing agreement or arrangement in place for the claimant to work from home. Rather, what had been happening was that the claimant would make ad-hoc requests to work from home. These were occurring on a regular basis, often at short notice. None of the claimant’s requests had previously been refused but the respondent’s managers were struggling to manage the situation, and to know where the claimant was and what she was doing. The Tribunal considered that it made sense for the respondent to want to formalise the claimant’s working pattern and establish her whereabouts at any given time. This was not a detriment to the claimant.[97]In light of the above, the Tribunal found that the claimant had not suffered any form of less-favourable treatment in terms of her unsuccessful application for promotion nor in the requirement to make a formal application for flexible working. The claimant pointed to 2 comparators, details of which are set out in paragraph 3.4 of the list of issues but the Tribunal found neither to be valid comparators. In evidence, it transpired that the “male” candidate referred to at 3.4.1, which the claimant says was recruited to the post in September 2022 was not in fact a male candidate, but a black woman and therefore not a valid comparator for direct sex discrimination. At 3.4.2 of the list of issues, the claimant names Joshua Lancaster who had been promoted to Band 6 from Band 5. The claimant accepted under cross-examination that he was not in the same circumstances as her. Neither of the comparators had made a flexible working request and the claimant did not rely on a hypothetical comparator for such. As a result, the Tribunal concluded that the complaint of direct sex discrimination was not well founded. Direct race discrimination[98]This complaint relies in part on the same facts as pleaded for direct sex discrimination. In respect of the claimant’s unsuccessful application for the Band 3 post of Workforce Planning Officer in September 2022 the Tribunal has found that the claimant was not appointed to the vacancy because she had not scored well enough to be appointed – see paragraph 92 above. The Tribunal has also found that the requirement that the claimant make a formal application for flexible working was reasonable and within the respondent’s flexible working policy. In addition, there was no evidence that either matter had anything to do with the claimant’s race.[99]In respect of the claimant’s unsuccessful application for a Band 4 post in January 2023, this is dealt with in paragraphs 44-45 above. The Tribunal found that, on 20 January 2023, the claimant was interviewed for the post of Onboarding and Pastoral Support Co-Ordinator. Ms Woodall was on the interview panel because she had been doing the job and, in fact, she was the only person at the respondent who knew what the job entailed. The claimant had objected to Ms Woodhall’s involvement, unsuccessfully. The interview was conducted face-to-face in the office, and shortly afterwards the claimant was told by Ms Thompson that she had not got the job. She was offered and provided with feedback. The claimant then presented a grievance email about the feedback she had received, accusing Ms Thompson and Ms Woodall of racial discriminatory behaviour towards her. However, there was no evidence provided to the respondent, or to the Tribunal, to substantiate that serious allegation. At the hearing, the claimant brought no evidence to show how her failure to be appointed, in preference to a candidate with significantly more recruitment experience, was somehow an act of race discrimination, save that the successful candidate was white British and the claimant is not. In any event, the Tribunal considered that race had nothing to do with the reason why the claimant did not get the Band 4 post.[100]Lastly, in respect of the termination of the claimant’s secondment with the International Recruitment team in June 2023, the claimant had been on secondment for 8 months, expiring in April 2023. She had known this from the outset. The claimant was off work, sick, from 30 November 2022, until beyond the expiry of the secondment. During that time, the claimant had made it clear, in numerous emails and communications to the respondent, that she would not return to work unless or until she was allowed to work from home and/or her flexible working request was granted in full and without conditions. In addition, the claimant expressed a wish to return to her substantive IT post, on several occasions, and the claimant had made it clear that she did not wish to work with the respondent in the People Services section. Indeed, on at least 2 occasions, the claimant had demanded an immediate return to IT. Hence, when the secondment ended, the claimant effectively returned to IT as was her wish, albeit that she remained off work, sick. Her substantive post in IT was another Band 3 post. The claimant did not complain, at the time, about the end of her secondment nor about the return to IT and raised no issue of race discrimination.[101]What then happened was that, 2 months later, the respondent secured further funding to continue the post into which the claimant had previously been seconded. The resulting vacancy was advertised but, unsurprisingly, the claimant did not apply. In those circumstances, the Tribunal was unable to identify any detriment to the claimant; there was no loss of money in her return to the IT department and no other aspect was in any way detrimental to the claimant. What happened was by operation of the secondment contract and the effluxion of time. The complaint of direct race discrimination is not therefore founded on any detriment.[102]Dealing with the comparators for direct race discrimination, as set out in section 4.4 of the list of issues, the first 2, points 4.4.1 and 4.4.2, are to an extent already dealt with above at paragraph 97. A black woman was in fact appointed to the post of Workforce Planning Officer. There was no evidence that either Ms Woodall or Mr Lancaster had any formal or informal arrangement for flexible working. At best, the Tribunal heard that, on odd occasions, Ms Woodall had asked to work from home and, on occasions, that had been granted ad-hoc but nothing like the extent the claimant relied upon. There was no evidence of what Mr Lancaster had asked for and been granted in terms of flexible working, if anything at all; the claimant simply relied upon a ‘belief’ that he had some arrangement in place. In any event, neither Ms Woodall or Mr Lancaster were in the same circumstances as the claimant; they were on higher grades and doing very different jobs. The Tribunal also noted that the claimant’s case here was riddled with confusion. At one point, in evidence, the claimant said the issue was about Ms Woodhall and/or Mr Lancaster having been promoted when she was not, albeit that this is nowhere pleaded as the claimant’s case. The Tribunal therefore found that neither comparator was in the same circumstances as the claimant, or in any equivalent circumstances.[103]The Tribunal has addressed the features of item 4.4.3, at paragraph 99 above, in that the successful candidate, Beverley Bennett, had significantly more recruitment experience than the claimant.[104]At 4.4.4, the white British worker who job shared with the claimant and who remained at work in the International Recruitment team was Mary Atkinson, who had job-shared the seconded post with the claimant. The Tribunal found that the claimant’s secondment ended on 8 April 2023, at the same time as Ms Atkinson’s secondment ended. However, Ms Atkinson was kept on, working on a week-toweek basis under a temporary arrangement, principally because there was a significant backlog of work due to the claimant’s sickness absence. At the time, the claimant remained off work, sick, having expressed a wish to return to the IT team in any event. The claimant had been very clear that she did not wish to continue working in People Services – see paragraph 100 above. In those circumstances no issue of discrimination arises; the claimant suffered no detrimental treatment. Direct discrimination because of religion[105]This complaint also relies upon 3 acts which are also relied upon for the complaints of direct sex or race discrimination. The Tribunal has already, in each case found non-discriminatory reasons for the treatment complained of and that such treatment did not amount to detriment. The claimant did not bring any evidence to show a causal link to her religion although she made a number of assumptions about other individuals’ religions for comparison purposes; for example, the claimant contended that because an individual looked “white” they would be British, and so would also be Christian. The Tribunal rejected those sweeping suggestions partly because life, and people’s ethnicity/religion is not that simple. In any event, there was nothing in the evidence to suggest that any of the treatment complained of under this head was because religion. Indirect discrimination claims[106]The claimant pursued complaints of indirect race discrimination and indirect religion and belief discrimination. In the list of issues, these 2 complaints depend upon the claimant showing that the Band 3 post criteria, in September 2022, included the requirement of being chatty and sociable. However, the Tribunal found there was no such criteria in the recruitment process for the post in question and no evidence of it. In essence, the claimant’s evidence was that, because she was Uzbek and a Muslim, she would be perceived as not being chatty and sociable. In fact, the claimant made a statement, in her evidence to the Tribunal, that “Uzbek people are not chatty and sociable”. There was nothing to support such a contention and, in those circumstances, the Tribunal declined to make such a sweeping finding about a whole race or nationality. The Tribunal also noted that, despite the claimant’s contention, her application for the various posts in issue included statements to the effect that she had “excellent communication skills”, was “fluent in several languages” and that she “undertakes translation work for individuals”. The Tribunal considered that such statements belied any suggestion that the claimant might be perceived as not being chatty and sociable. Without a PCP, the indirect discrimination claims must fail. Victimisation[107]The Tribunal first considered the protected acts relied upon in the list of issues at section 8.1. As to 8.1.1, the Tribunal found that there was no such email sent by the claimant to Ms Woodall, in mid-October 2022, and no evidence of a verbal conversation between them at the time. There was nothing in the claimant’s diary, even though her evidence was that she was apparently making notes of the respondent’s treatment of her. The nearest piece of evidence was an email from the claimant to Ms Woodall, on 2 November 2022, which appears in the bundle at page 370. The email is about Ms Dunkley’s conduct, and makes an allegation that such conduct was “unprofessional and vicious behaviour”, without any substantiation – see paragraph 17 above. There is no overt reference to discrimination or to the Equality Act 2010, and the email was sent at a time when the claimant had not even met Ms Dunkley, although she may have passed her in the corridor. In those circumstances the Tribunal could not find that there was a protected act in mid- October or even early November 2022.[108]The protected act contended for at 8.1.2 of the list of issues, is an email of 1 December 2022 which appears at page 412 in the bundle. This amounts to the claimant clarifying her position after a meeting with Beth Woodall on 30 November 2022 in respect of the flexible working issue. The claimant advises Ms Woodall she is going to go off sick because Ms Woodall was not supporting her. There is a reference in that email to bullying and harassment but there are no particulars of what that means or to what it refers and no mention of discrimination, or of the Equality Act 2010. In evidence, the claimant herself was unable to expand or explain how this was a protected act. In those circumstances the Tribunal could not find that the claimant’s email of 1 December 2022 constituted a protected act.[109]Lastly, item 8.1.3 is the claimant’s formal grievance raised on 25 January 2023 which appears in the bundle at page 495. The respondent accepted that this grievance amounts to a protected act. That being the case, the only act of detriment contended for, and which occurred after 25 January 2023, is item 8.2.6, the termination of the claimant’s secondment, said to be in June 2023 but in fact on 8 April 2023. However, the Tribunal has made findings about that event – see paragraphs 100 and 101 above – and has concluded that it was not a detriment. In any event, the claimant did not object to it, nor did she appeal it. Rather, the evidence showed that the claimant had requested that it happen earlier, and some months before. In those circumstances, the Tribunal found no evidence that the claimant was victimised for her grievance, as a protected act and, in fact, no evidence that the claimant herself thought so at the time. Time points[110]Although not strictly necessary, the Tribunal dealt with the time points raised as follows. Early conciliation started on 16 February 2023. This means that the primary limitation period of three months goes back to 17 November 2022. In that event, only the Band 3 post recruitment in September 2022 is potentially out of time. The Tribunal found that such recruitment was not discriminatory. In any event, the claimant had no explanation for her failure to bring proceedings earlier, within 3 months of that allegation, which would have required the claimant to commence early conciliation by a date in early December 2022. The Tribunal was told that the claimant has a background in trade union workplace representation which suggests that she should be aware of time limits and/or be aware of sources of advice on such. In respect of the particular allegation about the Band 3 post recruitment, the Tribunal also noted that the claimant did not complain about events at the time. Instead, the focus of her complaint, at the time, was Ms Dunkley, quite possibly following her communications with Ms McCall. The Tribunal considered such to be regrettable and certainly unhelpful to the claimant.[111]In light of all the Tribunal’s findings and conclusions, all the complaints are not wellfounded and are dismissed.