Mrs A Jenkins v National Trust for Places of Historic Interest or Natural Beauty: 2409256/2023
EMPLOYMENT TRIBUNALS
Case No 2409256/2023
Between
Mrs A JenkinsClaimantNational Trust for Places of Historic Interest or Natural BeautyRespondent
Before
Employment Judge Shotter
Members
Mr A ClarkeMs B HillonIn person for claimantMr A McPhail (instructed by counsel) for respondentDate 18 March 2025
JUDGMENT
[1]The claimant is given leave to amend her particulars of claim to include a detriment allegation as set out in para 3.1.3 of the agreed list of issues, to include “The Claimant was given a verbal warning from senior management for allegedly running machines without supervision on 7 June 2023.” 1 of 91[2]The claim form was presented on 14 October 2023 and taking into early happened before 3 April 2023 have not been brought within the statutory limitation period of three months. There was no conduct extending over a period, and it is not just and equitable to extend time. The Tribunal does not have the jurisdiction to consider the complaints alleged to have happened before 3 April 2023 of age discrimination brought under sections 13 and 26 of Equality Act, sex, age, and race discrimination brought under section 26 of the Equality Act 2010 and victimisation brought under section 27 of the Equality Act 2010. The complaints are dismissed.[3]The claimant was not victimised under section 27 of the Equality Act 2010 and the claims of victimisation are dismissed.[4]The claimant’s resignation was not a dismissal under section 95(1) of the Employment Rights Act 1996 as amended, her claim for unfair dismissal brought under section 98 is not well-founded and the dismissal was not unfair under section 103A and is dismissed.[5]The claimant was not subjected to detriments by the respondent done on the ground that she had made a protected disclosure, her claims of detriment brought under section 47B of the Employment Rights Act 1996 as amended are not well-founded and is dismissed.[6]The respondent was not in breach of contract and the claimant’s claim of unfair constructive dismissal is not well founded and is dismissed.[7]The claimant resigned and she was not constructively dismissed. The claimant was not entitled to be paid notice, and her claim for wrongful dismissal (notice pay) is not well-founded and is dismissed.
REASONS
[1]In a claim form received on 14 October 2023 following ACAS Early Conciliation between 3 July and 14 August 2023, the claimant brings complaints of automatic unfair constructive dismissal under section 107A of the Employment Rights Act 1996 as amended (“the ERA”) and detriment under section 43B(b). She brings claims under section 13. 26 and 27 of the Equality Act 2010 (“EQA”) for the protected characteristics of race, age, and sex. Finally, the claimant brings a wrongful dismissal claim for one months’ notice pay. 2 of 91 The final hearing dealing with liability[2]The claimant is a litigant in person supported by members of her family and at times her legal advisor. The claimant explained she can experience “panic attacks.” In accordance with the Equal Treatment Bench Book, we discussed adjustments the claimant would need for a fair hearing to taken place, and as agreed the claimant was offered as many breaks as she wanted whenever she needed them.[3]In an email sent on the 8 October 2024 to the Tribunal the claimant referred to an “imbalance to the hearing” seeking to change the sequence in which witnesses were to be called and leave to amend her witness statement. The claimant also objected to the respondent calling Jenniffer Brooke as a witness to give evidence on the basis that the claimant was put at a “great disadvantage.” Jennifer Brooke had produced her witness statement late and in it referred to the contents of the claimant’s witness statement. The claimant objected to the respondent calling Helen Mathew (whose witness statement had been served in accordance with the case management orders unlike that of Jennifer Brooke) who in the claimant’s view “had nothing to offer.” The claimant also referred to 8 videos which she had disclosed to the respondent late. The claimant made no reference to any problems with disclosure or documents missing in the bundle, Judge Leach’s order or allegations that the respondent was acting in a vexatious manner with the result that the claimant left documents out of the bundle and “which meant that the bundle was not representative of the full picture” in contrast to the claimant’s written closing submissions. The written closing submissions was the first occasion the claimant raised issues with the bundle and disclosure despite having raised several objections about other matters at the outset of the final hearing. .[4]At the final hearing the claimant complained about the length of time she was to give evidence and the number of witnesses the respondent intended to call as “an act to intimate me.” The Tribunal found this complaint had no basis in fact.[5]The claimant sought to introduce into evidence the video evidence which she had not disclosed until a few days before the trial, and it had not been viewed by the respondent, and amend her witness statement.[6]The respondent raised the issue of the claimant’s Particulars of Claim failing to include alleged detriment 3.1.3 set out in the list of issues that Jennifer Brooks had given the claimant a verbal warning. It was clear that alleged detriment 3.1.3 had been included in the original draft list of issues as allegation 3.1.7 without leave to amend being given to include that complaint. It is undisputed the claimant makes no mention of a verbal warning in her Particulars of Claim and the claimant accepted this was the case. In short, it was a new claim and leave was necessary for the claimant to rely on it.[7]Having heard oral arguments from both parties, the Tribunal decided with the overriding objective in mind and in the interests of justice that the claimant’s video evidence, despite late disclosure, would be entered into evidence providing the respondent was given time to view it and ask supplemental questions of its witnesses. The claimant was given leave to amend her witness statement and 3 of 91 include detriment 3.1.3 set out in the list of issues. The Grounds of Complaint was amended to read as follows in respect of the detriments relied on: “The Claimant was given a verbal warning from senior management for allegedly running machines without supervision on 7 June 2023.”[8]The respondent was given leave to submit the written statement of Jennifer Brooks late. The claimant confirmed she intended to rely on the verbal warning given to her by Jennifer Brooks and accepted that the time for hearing evidence will be extended by a short time (30 minutes to 60 minutes) and it was “better” for her to have a witness statement to cross-examine Jennifer Brooks. It was agreed that the parties would ensure the evidence was limited to the claimant’s employment only, including Nicola Stuart’s written evidence which provided a lot of information about her own case, and the final agreed list of issues was key. The claimant indicated what a limited number of paragraphs in Nicola Stuart’s evidence was relevant to her case, that the Tribunal had “not missed anything – covered everything been brilliant thank you.”[9]Turning to the claimant’s objections about Helen Mathews, the Tribunal took the view it was not for the claimant to determine whether Helen Mathews was a relevant witness or not, and the Tribunal did not agree to disallow her written evidence as it was for the respondent to determine who it wanted to call providing he or she addressed the relevant issues which was a matter for the Tribunal to control. The parties understood that witnesses would only be giving evidence relevant to the agreed list of issues. Oral reasons were given for the Tribunal’s decision concerning these case management issues at the final hearing.[10]The claimant did not at any stage throughout the final hearing raise any issue concerning discovery, the incomplete bundle, and there were no complaints that the respondent had acted vexatiously towards her in connection with discovery and/or the preparation of the agreed bundles that included additional documents at the claimant’s request having initially run to 691-pages increased to 698-pages of additional documents produced by the claimant, and a Supplemental Bundle of 75-pages also produced by her. The parties were invited to take the Tribunal to any of the documents in the two bundles relevant to their case. Claimant’s application to introduce the witness statement of Michael O’Sullivan 27 January 2025[11]On the 27 January 2025 the claimant applied to introduce the written evidence of Michael O’Sullivan employed by the respondent between September 2018 until he went off ill from work in January 2020. Michael O’Sullivan makes a number of health and safety allegations concerning the museum and the £10 million redevelopment which included “deep maintenance of a number of machines,” record keeping and culture, alleged favouritism and cliques. Having heard oral submissions from both parties concerning with the claimant’s application, the Tribunal rejected it giving oral judgment and reasons based on irrelevance, balance of prejudice weighing towards the respondent, delay and the overriding 4 of 91 objective given the claimant wanted to call Michale O’Sullivan after all the evidence had been heard. The reasons are not recorded in this Judgment and have not been requested.[12]On the 30 January 2025 during deliberations the claimant emailed the Tribunal with further information, thanking the Tribunal for granting her more time to make oral submissions. The claimant had complained when Mr McPhail went over his allotted time of 30 minutes talking to his written submissions and responding to the claimant’s lengthy written submission. It was explained to the claimant that on occasion the time agreed is overrun in order that the parties can make their submissions in full, and this will also apply to the claimant when she makes her submissions. The claimant was given a one and a half hour break to consider Mr McPhail’s oral submissions having received the respondent’s written submissions beforehand in accordance with earlier case management orders. The claimant then gave her oral submissions which went over the thirty minutes time limit and confirmed at the end that she had made all the submissions she wanted to.[13]Deliberations has taken the panel 5 days in total, which included a day re-reading the evidence, due to the complexity and number of the claimant’s allegations. Evidence[14]The Tribunal heard evidence from the claimant on oath and it took into account her 118-page witness statement. In oral evidence under cross-examination the claimant explained the discrepancies between her Particulars of Claim, written evidence and oral evidence as follows; “We have to remember when I wrote the Particulars of Claim soon after I left the dates were hazy because I was so traumatised…”[15]The Tribunal did not find the claimant to be a credible witness, for example, she alleged that Rex Ashton had “thrown her under the bus” when he “messed up” and she “got the blame” and was issued with a verbal warning because the respondent wanted her out, using Rex Ashton to “spy” on her and “plotting.” The claimant disputed that Rex Ashton and Neil Holden had over 20 years’ experience, maintaining they lacked skills as supported by the video evidence the claimant took, and the reason they carried out maintenance work was because they were men. The claimant on cross-examination admitted she had assisted with maintenance under their guidance despite it not being the claimant’s core role. The claimant’s evidence was contradictory and confusing, unsupported by the video evidence and the covert recording she took.[16]The Tribunal had before it the claimant’s lengthy witness statement which had been corrected and amended by her since exchange. It found the claimant’s written statement confusing at times. In her statement the claimant jumped from allegation to allegation, a number of the dates were acknowledged by her in cross-examination to be incorrect, and descriptions of the allegations merged with new allegations she had not pleaded. 5 of 91[17]The Tribunal is concerned with the notes produced by the claimant and described by her as contemporaneous finding they were not contemporaneous notes, and there was a concern about their veracity. For example, on the 19 September 2022 the claimant had spoken to Clare Brown about the Afro Caribbean comment, and the claimant stated she also spoke with Rosalind Stone about the same matter. However, the notes reflect the comment was not mentioned Rosalind Stone, Clare Brown denies it was mentioned to her and the claimant did not cross-examine witnesses on the Afro Caribbean comment and dates. This is but one example of the Tribunal exploring the evidence, even taking the claimant’s notes at their highest, before concluding there are issues with credibility.[18]The Tribunal took a great deal of time deliberating, including a detailed reading of the claimant’s covert recording of her meeting with Darren Whalen on 8 March 2023, as recorded below in the findings of fact. The claimant made a number of covert recordings, and there is an issue with this as she maintains all but the 8 March 2023 recording were deleted by her. As submitted by Mr MacPhail, the claimant has given a very detailed account of the meeting with Suzanne Kellett on 27 February 2023 allegedly from her memory and yet her Particulars of Claim were incorrect in part. The claimant in oral evidence on cross-examination provided an explanation for the errors in her Particulars of Claim, explaining she was too upset to remember properly at the time and her solicitor had made mistakes. The Tribunal found the claimant gave contradictory evidence concerning her memory and the deletion of covert recordings, particularly a recording she relies on as a protected act. It is not credible the recording was deleted, the inference being that the claimant raised no complaints about unlawful discrimination, had she done so the covert recording would have been disclosed. The Tribunal found the claimant’s conversation with Darren Whalen on 8 March 2023 did not indicate the relationship had broken down, or that she had a terrible PDR meeting on 26 February and meeting with Suzanne Kellett on 27 February 2023. The Tribunal found the claimant was an unreliable witness whose evidence was not straight-forward.[19]The Tribunal found the serious allegation 10.2.10 raised against Rex Ashton did not happen, and it is a fabrication. Given the fact that the claimant was raising issues against Clare Brown at the time, and in oral submissions she described how she was “extremely violated. I was shocked and disgusted by his behaviour” it is incomprehensible that she did not discuss this with any manager and/or raise a grievance and/or email the respondent about the comment, which on any view, was extremely offensive and racist. The claimant had raised a number of issues, and yet she was silent from the 19 April 2023 to the date of resignation, and the claimant has not provided any reason for this. The Tribunal notes that the claimant was aware of the time limits for bringing a race discrimination claim, she had consulted ACAS in late 2022 and was preparing her case for this litigation. To support her allegation according to the claimant at least two other employees had overheard the alleged comment, and it would have been a relatively straightforward matter for the respondent to have conducted a full and objective investigation by questioning possible witness, and yet the claimant remained silent. The Tribunal concluded that the claimant was silent because the words were not said as alleged. This allegation has undermined the claimant’s 6 of 91 credibility, and it is notable that in oral submissions the claimant refereed to “sexual violence” by Rex Ashton’s (without specifying the relevant comment) and the trauma she suffered as a result, another serious allegation with no evidence to support it.[20]On behalf of the claimant the Tribunal heard from the claimant’s daughter, Jasmine Jenkins, whose witness statement contradicted the claimant’s evidence that she was discriminated against on the first day of work as recorded below. Jasmine Jenkins wrote that during the first two weeks of her Mother’s employment the claimant was “excited to work and told me about how lovely the people were.” The first allegation reported to her was the claimant’s manager Clare Brown “making negative comments about her nails” in direct contradiction to the claimant’s evidence. The claimant’s explanation of the numerous discrepancies was that she did not tell her family everything, and yet the claimant confirmed in cross-examination that she had recorded meetings and conversations covertly, in order to discuss them with her husband. Jasmine Jenkins also gave evidence in her written statement that in the first two weeks of employment the claimant reported Clare Brown suspected she was menopausal, which undermines Jasmin Jenkins evidence that the claimant was excited about her employment in the first two weeks and the people were lovely. Jasmine Jenkins does not record the claimant’s alleged response to Clare Brown and the references she made to rudeness, age and illegal comments.[21]Finally, on behalf of the claimant Nicola Steward, who had been employed by the respondent between January 2017 to January 2023, gave oral evidence and provided a witness statement largely about the complaints and grievances she had with the respondent resulting in her resignation, which were not relevant to the issues in this case. Nicola Steward made reference to Mike O’Sullivan; the witness who provide the claimant with the written statement dated 16 February 2025. Nicola Stewart describes how she and the claimant were approached about joining a diversity group, which she was keen to get involved in to “steer change and working practices for the better…I got the impression AJ was being asked because she was brown skinned…nothing was ever overtly expressed to this end…” In oral evidence Nicola Steward confirmed she was not present when Wayne Carter approached the claimant “on a couple of occasions.” Nicola Steward contradicted the claimant’s version of events when Wayne Carter first approached her, and contrary to the claimant’s evidence, visitors were not nearby because Nicola Stewart had taken them into another area and she did not overhear what was being discussed, undermining the claimant’s evidence that Wayne Carter was talking so loudly it was embarrassing for her.[22]On behalf of the respondent the Tribunal heard from Wayne Carter, volunteer and community manager, Darren Whalen, facilities and technical manager, Neil Holden, technical demonstrator, Clare Brown, technical demonstrator manager/line manager of claimant, Julie Whitehouse, technical demonstrator, Rex Ashton, technical demonstrator, Helen Mathew, operations manager/grievance manager, Jennifer Brooke, visitor operations and experience manager, Rosaline Stone, general manager. It has dealt with contradictions in the evidence given and credibility below in the relevant finding of facts, recognising 7 of 91 that memories are fallible over time and cannot always be relied on, looking for contemporaneous evidence in support before concluding on balance that the respondent’s witness evidence was more believable, straightforward and credible than that given by the claimant, who gave inaccurate and less than credible evidence and one more than one occasion, was found to be an inaccurate historian. Agreed issues.[23]The parties agreed the issues as set out below having initially agreed them at case management hearing on the 9 April 2024 which were amended further during the final hearing. 1. PRELIMINARY ISSUESa. Out of time i. Given the date the claim form was presented (14 September 2023) and the dates of early conciliation, any complaint about something that happened before 4 May 2023 may not have been brought in time. ii. Were the discrimination, harassment and victimisation complaints made within the time limits in section 123 of the Equality Act 2010? The Tribunal will decide: 1. Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates? 2. If not, was there conduct extending over a period? 3. If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period? 4. If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide: a. Why were the complaints not made to the Tribunal in time?b. In any event, is it just and equitable in all the circumstances to extend time? 8 of 91 iii. Was the detriment complaint made within the time limit in section 48 of the Employment Rights Act 1996? The Tribunal will decide: 1. Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act complained of? 2. If not, was there a series of similar acts or failures and was the claim made to the Tribunal within three months (plus early conciliation extension) of the last one? 3. If not, was it reasonably practicable for the claim to be made to the Tribunal within the time limit? 4. If it was not reasonably practicable for the claim to be made to the Tribunal within the time limit, was it made within a reasonable period? 8. PROTECTED DISCLOSURES a. Did the Claimant made one or more qualifying disclosures as defined in section 43B of the Employment Rights Act 1996? The Tribunal will decide: i. What did the Claimant say? When? To whom? b. Was there a qualifying disclosure? In particular: i. Did the Claimant disclose information? ii. Did they believe the disclosure of information was made in the public interest? iii. Was that belief reasonable? iv. Did they believe it tended to show that: 1. A criminal offence had been, was being or was likely to be committed; 2. A person had failed, was failing or was likely to fail to comply with any legal obligation; 3. The health and safety of an individual had been, was being or was likely to be endangered; 4. Information tending to show any of these things had been, was being or was likely to be deliberately concealed; 9 of 91 5. Was that belief reasonable?c. The Claimant appears to rely on the following as qualifying disclosures: i. On or around 1 January 2023, the Claimant informing Darren Whalen that there were no work gloves for the team to use when working on machinery. ii. On or around 24 January 2023, the Claimant reporting a “nearmiss” incident which occurred on 18 January 2023 to Clare Brown. iii. On 13 April 2023, the Claimant highlighting the “near miss” incident had not been documented and that it should be formally recorded. iv. Between 25 and 27 April 2023, the Claimant raised concerns to Clare Brown that the team members training her were not operating safe practices. 9. DETRIMENT (SECTION 47B EMPLOYMENT RIGHTS ACT 1996) a. Did the Respondent do the following: i. Clare Brown ignored and avoided the Claimant for the final two months of her employment, delegating management tasks to Rex Ashton. ii. Clare Brown shared the Claimant’s oral disclosures about health and safety around the team. iii. The Claimant was given a verbal warning from senior management for allegedly running machines without supervision on 7 June 2023 b. By doing so, did the Respondent subject the Claimant to detriment? c. If so, was it done on the grounds that the Claimant made a protected disclosure? 10. UNFAIR CONSTRUCTIVE DISMISSAL FOR MAKING A PROTECTED DISCLOSURE (SECTION 103A EMPLOYMENT RIGHTS ACT 1996) a. Was the Claimant dismissed? i. Did the Respondent do the things alleged in paragraphs 1 to 32 of the Claimant’s Particulars of Claim? During the hearing the 10 of 91 claimant clarified that the breaches of contract she relies on are contained in the following paragraphs of the Particulars of Claim: b. Para: 2 menopause c. Para: 3 HSE (“Health and safety”)d. Para: 4 raciale. Para: 5 harassmentf. Para: 7 racialg. Para: 9 racialh. Para: 10 HSE safe practicesi. Para: 11 racialj. Para: 12 HSE glovesk. Para: 13 HSEl. Para: 15 harassmentm. Para: 16 menopausen. Para:17 HSEo. Para: 19 HSE lack of trainingp. Para: 20 HSE - put up with lack of trainingq. Para: 22 HSEr. Para: 23 Harassments. Para: 24 HSE safe practicet. Para: 25 HSE - request for training ignoredu. Para: 26 Racialv. Para; 27 HSE Rosalind Stonew. Para: 28 racialx. Para: 29 racialy. Para: 30 ignored by Clare Brown 11 of 91z. Para: 31 HSE aa. Para: 32 HSE i. Did the conduct breach the implied term of trust and confidence? The Tribunal will need to decide: 1. Whether the Respondent behaved in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the Claimant and the Respondent; and 2. Whether it had reasonable and proper cause for doing so. ii. It is accepted that if it is found that there was a breach of the implied term of trust and confidence that this will be a fundamental breach. iii. Did the Claimant resign in response to the breach? The Tribunal will need to decide whether the breach of contract was a reason for the Claimant’s resignation. iv. Did the Claimant affirm the contract before resigning? The Tribunal will need to decide whether the Claimant’s words or actions showed that they chose to keep the contract alive even after the breach. 11. AUTOMATIC UNFAIR DISMISSAL (PROTECTED DISCLOSURE) a. If the Claimant was found to have been constructively dismissed, was the reason or principal reason for dismissal that the Claimant made a protected disclosure? This will only arise if the conduct that breached the relationship of trust and confidence consisted wholly or mainly of Detriments 1 to 3, as this is the only conduct that is said to have been motivated by the fact that the Claimant made a protected disclosure. b. If so, the Claimant will be regarded as unfairly dismissed. 12. WRONGFUL CONSTRUCTIVE DISMISSAL a. It is common ground that the Claimant was entitled to one month’s notice of termination. If the Claimant was constructively dismissed, damages will be assessed to compensate her for the loss of one month’s notice. 12 of 91 13. DIRECT AGE DISCRIMINATION (SECTION 13 EQUALITY ACT 2010) a. Did the following acts of less favourable treatment take place as alleged by the Claimant: i. Clare Brown telling the Claimant she “grossly overthinks things” and mocking the Claimant by making hand gestures suggesting the Claimant’s complaints are in her mind. ii. Clare Brown saying, “I know what’s wrong with you, you’re iii. Clare Brown asking the Claimant if she has had a blood test to show whether she is perimenopausal or not. iv. Clare Brown telling the Claimant she should go home and tell her husband to take her on holiday. v. Clare Brown telling the Claimant she is perimenopausal during her PDR meeting on or around 6 March 2023 and that is why she finds certain comments inappropriate. vi. Clare Brown assuming the Claimant was menopausal and/or perimenopausal. vii. Clare Brown not taking the Claimant’s complaints seriously and considering the Claimant was oversensitive due to perimenopause and/or the menopause. b. Did the Respondent treat the Claimant less favourably that it treated or would treat the relevant comparator? The Claimant compares herself to a hypothetical comparator. c. If so, was any less favourable treatment because of/on the grounds of the Claimant’s age, contrary to the Equality Act 2010? 14. HARASSMENT RELATED TO SEX (SECTION 26 EQUALITY ACT 2010) a. Was the Claimant subject to unwanted conduct? What is the alleged b. The Claimant appears to rely on the following allegations as instances of unwanted conduct: i. Clare Brown’s actions and comments towards the Claimant in relation to the menopause, including that: 13 of 91 1. Clare Brown telling the Claimant she “grossly overthinks things” and mocking the Claimant by making hand gestures suggesting the Claimant’s complaints are in her mind. 2. Clare Brown saying, “I know what’s wrong with you, you’re 3. Clare Brown asking the Claimant if she has had a blood test to show whether she is perimenopausal or not. 4. Clare Brown telling the Claimant she should go home and tell her husband to take her on holiday. 5. Clare Brown telling the Claimant she is perimenopausal during her PDR meeting on or around 6 March 2023 and that is why she finds certain comments inappropriate. ii. Comments and actions towards the Claimant in relation to her using the Respondent’s machinery: 1. Clare Brown commenting that the Claimant’s nails were “awful”. 2. Clare Brown telling the Claimant that she was “not allowed to ask questions about machines”. 3. Clare Brown telling the Claimant “It wasn’t her job” to solve any issues with the Respondent’s machinery and that “it was left for the men to do”. 4. Clare Brown saying, “you have only been here six months; they have been here 20 years”. 5. Clare Brown’s comments towards the Claimant stating, “you should come to me if you have a problem, not go behind my back”. c. If so, is that conduct related to the Claimant’s sex? 14 of 91 15. HARASSMENT RELATED TO AGE (SECTION 26 EQUALITY ACT 2010) a. Was the Claimant subject to unwanted conduct? What is the alleged b. The Claimant appears to rely on the following allegations as instances of unwanted conduct: i. Clare Brown’s actions and comments towards the Claimant in relation to menopause, including: 1. Clare Brown telling the Claimant she “grossly overthinks things” and mocking the Claimant by making hand gestures suggesting the Claimant’s complaints are in her mind. 2. Clare Brown saying, “I know what’s wrong with you, you’re 3. Clare Brown asking the Claimant if she has had a blood test to show whether she is perimenopausal or not. 4. Clare Brown telling the Claimant she should go home and tell her husband to take her on holiday. 5. Clare Brown telling the Claimant she is perimenopausal during her PDR meeting on or around 6 March 2023 and that is why she finds certain comments inappropriate. c. If so, is that conduct related to the Claimant’s age? 16. HARASSMENT RELATED TO RACE (SECTION 26 EQUALITY ACT 2010) a. Was the Claimant subject to unwanted conduct? What is the alleged b. The Claimant appears to rely on the following allegations as instances of unwanted conduct: i. Wayne Carter repeatedly asking the Claimant to be part of a diversity group at the Respondent. 15 of 91 ii. That the Claimant was singled out to join the diversity group as a person of colour. iii. Rex Ashton saying to the Claimant on 21 August 2022 “wouldn’t it be great for a person like you to help Wayne and he’s doing it for the right reasons”. iv. Wayne Carter telling the Claimant how his neighbour’s son was “beaten up by the local white boys”. v. Wayne Carter asking the Claimant if she knew how he “could get an Afro-Caribbean man to work here, for example”. vi. Rosalind Stone telling the Claimant that Wayne Carter would be mortified if he knew the Claimant was talking about him. vii. Clare Brown saying “you would have hated being in yesterday. Head office have sent photographs in to take pictures of staff, they want images for the publications and want to represent people. They have even asked for a volunteer who doesn’t come anymore in a wheelchair to have their photo taken. They even asked Roger”. viii. In the context of a man commenting how “Indians [are] coming to the country and buying all of the water in Aldi”. Clare Brown saying to the Claimant that this was “more banter than racism” and Julie Whitehouse telling Clare Brown the Claimant “should get over herself”. ix. Clare Brown referring to the fact a group of visitors were French on or around 12 April 2023. x. Rex Ashton saying how “Indian people [wash] themselves with their hands rather than use toilet paper and then eat” and how this is “foul”. xi. How other employees can take fabric from the Respondent for free, but the Claimant must pay for it. c. If so, is that conduct related to the Claimant’s race? 16 of 91 17. VICTIMISATION (SECTION 27 EQUALITY ACT 2010) a. Did the Claimant carry out a protected act? The Claimant relies upon the following: i. Protected Act 1 – Informing the Respondent’s People Services discriminatory behaviour on 27 February 2023. ii. Protected Act 2 – Informing Darren Whelan of the same discriminatory behaviour on 8 March 2023 iii. Protected Act 3 – Informing Rosalind Stone of concerns relating to Clare Brown’s management on 3 May 2023 iv. Protected Act 4 – Raising a grievance on 7 June 2023 regarding discrimination. b. If there was a protected act, did the Respondent carry out any of the treatment set out below because of the act? i. Victimisation 1 - The alleged change in treatment which the Claimant received from Clare Brown. ii. Victimisation 2 - The comments made by Rosalind Stone when the Claimant raised her complaints against Clare Brown, namely: 1. Ms Stone saying, “we’ve been here before haven’t we…with Wayne”. 2. Ms Stone saying she “has never had any reason to discuss Clare’s management style in the past 20 years”. iii. Victimisation 3 - The Claimant allegedly being ignored by Clare Brown, including for example on 24 May 2024. iv. Victimisation 4 - The Claimant allegedly having unfair criticism levied at her in relation to her work, namely that she had been running machines without switching on an extractor fan and without proper training. v. Victimisation 5 - The suggestion by Neil Holden that the Claimant should “put up and shut up with it or leave” on 23 April 2023. vi. Victimisation 6 - The alleged disclosure of the Claimant’s complaints to the wider team. vii. Victimisation 7 - Victimisation by constructive dismissal. 17 of 91 c. Does the treatment list between paragraphs 11.2.1 and 11.2.7 amount to a “detriment”? 18. REMEDY ISSUE, TO BE INCLUDED AS PART OF THE LIABILITY HEARING a. In the event that any of the claims are upheld: i. Absent the relevant unlawful conduct, would the employment relationship have come to an end on 7.06.2023 or in the following weeks/months in any event? ii. If so, should any potential award for financial loss be limited or reduced on that basis? If so, to what extent? iii. Any and all other remedy issues will be determined at a separate remedy hearing.
HEARING
[24]Having considered the oral and written evidence and the written and oral submissions presented by the parties (the Tribunal does not intend to repeat all of the oral submissions, but has attempted to incorporate the points made by the parties within the body of this judgment with reasons), it has made the following findings of the relevant facts resolving the conflicts in the evidence. Facts[25]The respondent is a large conservation charity protecting heritage sites and landscapes, employing thousands of employees throughout the United Kingdom, managing thousands of volunteers with millions of members. It owns and runs Quarry Bank Mill, a heritage site in Cheshire which houses industrial factory cotton making machines in a museum employing “technical demonstrators” to show round visitors and how the machines work. The machines produce fabric sold in the museum shop. Employees can purchase the fabric at cost price and did not have to pay for seconds. Clare Brown managed the technical demonstrators including Rex Ashton and Neil Holden, who had been employed by the respondent for over twenty years working on the machines, including repairing and servicing. Technical demonstrators required training and the process took 18 months to two years to complete.[26]Rosalind Stone has been employed by the respondent for 23 years, and as general manager had overall responsibility for Quarry Bank Mill, approximately 100 staff employed to work in the Mill and some 350 volunteers.[27]The claimant, who has an engineering degree, applied for the position of technical demonstrator role and attended an interview on the 1 July 2022 with Clare Brown, the technical demonstrator manager, and Darren Whalen, facilities and technical manager. The claimant had been out of the workplace for between twenty and twenty-five years (the claimant was not precise and the number of years varied 18 of 91 according to the claimant’s evidence) according to the claimant she interviewed badly and was only offered the job because of the protected characteristic of race. The claimant described herself as a qualified engineer with Indian Pakistani heritage and “a person of colour”. The claimant was not trained to demonstrate the museum machines, she required training on individual machines and could not work on the machines solo until signed off as competent over the eighteenmonth/two year training period.[28]In cross-examination the claimant stated she was selected because of her race, yet in her witness statement the claimant expressed there was a “concern” about the claimant being a “mother and main caregiver at home or perhaps a stereotypical view because I am Indian or Pakistan, that I might not be reliable or committed fully to the role and let I was being unfairly judged.” There was nothing in the interview to suggest Clare Brown and Darren Whalen held any stereotypical views, the claimant was first choice and scored half a mark more than the next person. She was found to be a “breath of fresh air” and well fitted for the public facing role, a “perfect fit” for the museum open to the public. The Tribunal found that the claimant was not selected because of her race or colour, she was selected because Clare Brown and Darren Whalen concluded she was the best person for the job. The claimant’s role was primarily talking to visitors and demonstrating the machines throughout the day, the claimant’s role was not repairing the machines, which was carried out by the more experienced technical demonstrators such as Rex Ashton and Neil Holden who had been repairing and servicing the industrial machines for over twenty years.[29]The claimant was issued with a conditional contract of employment on a 3 month probation. The appendix refers to the non-contractual procedures including grievance procedure which “may be used where an issue has not been resolved informally.” Information was also provided about MYplace, the HR self-service system. The respondent had a number of policies including Whistleblowing and Grievance.[30]The claimant was line managed by Clare Brown, whose line manager was Darren Whalen.[31]As the claimant’s training progress, she was eager to take on a servicing repairing role and was given further training on this as recorded below.[32]The respondent was keen to attract visitors to the museum in addition to National Trust members, and one of the “key values” was “everyone is welcome.”[33]It issued employees and volunteers with a Staff and Volunteer Book that set out the applicable procedures including Staff and Volunteer Discounts making it clear the respondent “want to build a culture that collaborative…inclusive, welcoming and sustainable…and reach new audiences…” Employees and volunteers will receive “full training from your line manager and certain experienced members of the department” and entitled to a twenty percent discount on material. 19 of 91[34]The respondent had a Inclusion and Diversity aim that included the following: “As society becomes more diverse, we need to evolve…We call this work Everyone Welcome…Inclusive Recruitment – We are introducing strength based recruitment for some of our visitor facing roles which moves away from our current process…selecting applicants based on previous experience and education, to criterial based on their suitability for the role.” Under the heading “How we’ll Measure our progress” the respondent explained the four key performance indicators…our focus is on making the National Trust a more inclusive organisation…” that included staff involvement.[35]Wayne Carter, Volunteer and Community manager, was employed by the respondent from May 2022. His role included relaunching a diversity/access group (referred to as the “diversity group”) to consider the spectrum of protected characteristics relating to volunteers, employees, and visitors. Wayne Carter in his role of senior lead, walked around the Mill and interacted with staff including the claimant, talking to them about their work and breaks. He also asked a number of staff if they wanted to join the diversity group and help the respondent achieve its aim to become a more inclusive organisation.[36]The respondent had risk assessments and various health and safety procedures for staff and people visiting and working in the Mill which housed 200-year-old machinery, and provided protective equipment, including gloves. Claimant’s first day at work 11 June 2022 Para 1 Particulars of Claim limb 1 Allegation menopause 11 June 2022[37]On the claimant’s first day at work, 11 June 2022, Clare Brown around showed the claimant around the Mill. The claimant alleges that she informed Clare Brown she had a health issue that may require surgery at short notice. Clare Brown responded, “it was fine to do so” as long as she was told and then allegedly asked the claimant “are you going through the menopause” to which the claimant allegedly responded, “I don’t think you’re legally allowed to ask questions like that.” Clare Brown then allegedly said “You’re probably peri menopausal, how old are you?” to which the claimant allegedly responded, “I don’t think you’re allowed to ask that either, are you?” alleging Clare Brown then spoke about her menopausal symptoms and the difficult relationship she had with her partner. In cross-examination the claimant confirmed Clare Brown had picked the topic of menopause “out of the blue.”[38]Clare Brown’s version is that the claimant shared information about her health, including the fact she had painful periods and that she had been to the doctors asking if she was going through the Menopause, but they told her she was not.[39]The claimant’s version does not follow logically, and the Tribunal concluded that it is not likely Clare Brown would jump to the question “are you going through the 20 of 91 menopause” as a result of the claimant telling her that she had undergone a second surgery. Clare Brown denied it twice in cross-examination when the claimant also put to her the following “I tell you are completely out of line, and it is an illegal comment” and “you asked me about my age, and I told you were extremely rude and that’s illegal too.” This was the first occasion the claimant had brought up this version of events, and the Tribunal preferred Clare Brown’s evidence on cross-examination that the claimant first raised the issue of menopause and there was no discussion about her own menopause. In crossexamination Clare Brown said, “You brought up you thought you were menopausal, and the doctor said you were not.” The claimant’s responded to Clare Brown’s evidence stating, “I felt really stupid at the time.”[40]The Tribunal concluded on the balance of probabilities the claimant disclosed to Clare Brown she and been to the doctor to discuss menopause who confirmed that she was not menopausal. In arriving at this conclusion, the Tribunal took into account the claimant’s exaggerated description, there is no earlier reference to the claimant telling Clare Brown she was “extremely rude”. In direct contrast the claimant describes this allegation in her written grievance, setting out how “I laughed, but very concerned and asked if this was legally something she could talk about. She said that at my age, she had gone through menopause…I felt very uncomfortable about this…I asked her to be discreet. I didn’t want to talk to anyone about it but her. She was extremely understanding and informed me how to report in sick” [the Tribunal’s emphasis].[41]It is undisputed the claimant did issue proceedings claiming alleged discrimination that had taken place on the 11 June 2022, some eleven months previously. The claimant explained to the Tribunal that she did not know about the Equality Act 2010, which it did not find credible given the claimant’s evidence that she had taken advice from ACAS in 2022 and been advised of time limits for discrimination cases, as recorded below. The different version of what she had said twice about Clare Brown’s illegal acts, also undermined the claimant’s credibility, telling her she was extremely rude and yet in the grievance describing Clare Brown as “extremely understanding.” It is also notable that her Particulars of Claim, drafted by the claimant’s solicitor, does not refer to the claimant telling Clare Brown she was “extremely rude” or to Clare Brown being extremely understanding. The Particulars of Claim do refer to the claimant’s concern with the respondent and Clare Brown’s approach to diversity and inclusion “from the outset of her employment” and yet the claimant raised no grievance until the day she resigned against a background of making other complaints and allegedly standing up to Clare Brown. The Tribunal did not take the claimant’s version of events as credible, and it was further supported by the claimant’s less than satisfactory evidence concerning the dates of a number of the allegations set out in the agreed list of issues, and the contradictions. In oral evidence on cross-examination the claimant explained the mistakes and omissions were down to her solicitor. The Tribunal found the claimant was inconsistent in her evidence, and the only time perimenopause was mentioned was in a meeting held in February 2023 with Clare Brown and not on the 11 June 2022, preferring Clare Brown’s more cogent evidence on this issue. 21 of 91 Para 1 of the Particular of Claim. The second limb of the claimant’s complaint relating to Japanese tourists. On one occasion at the beginning of the Claimant's employment, team members made stereotypical comments relating to a group of visitors from Japan and Clare did not step in to highlight this was inappropriate.[42]In the Particulars of Claim there is no date to this allegation and no reference to any individual team member who allegedly made the comment.[43]In her witness statement the claimant recorded that it was on her first day at work, 11 June 2022, and involved Rex Ashton who allegedly said on hearing that a group of Japanese people were visiting that day “you can tell they Japanese because all have huge cameras around their necks.” The claimant has not named the person who made the racist comment and connected it with her protected characteristic; “someone who commented they have slanty eyes…I wondered what they thought of me as a person of colour, I am now very aware that I stood out as different.” The claimant’s evidence that on her first day at work she was aware she stood out as different due to racism, and the claimant’s version of events is contradicted by the evidence of Jasmine Jenkins.[44]Clare Brown gave evidence that at the relevant time the records do not show a Japanese Group visited. The claimant did not cross-examine Rex Ashton on this allegation at the final hearing, and did not raise the matter at the time. The claimant did not raise it with Clare Brown, it was Clare Brown who raised the allegation as she thought the claimant had been confused by a visit of French students.[45]The claimant did not refer to this alleged incident until 15 May 2023 in a meeting with Suzanne Kellett set up to investigate the claimant’s concerns about Clare Brown. Approximately eleven months passed since the alleged event and the 15 May 2023 was the first occasion when the claimant’s complaint was recorded in writing and there is no reference to Rex Ashton or the words he allegedly used, and no reference to the second comment and who made it.[46]Given the issues concerning the claimant’s credibility and the paucity of information provided by the claimant who delayed reporting the racism and/or raising a grievance about it, the Tribunal prefers the evidence given by Clare Brown, concluding that the incident allege by the claimant did not take place, and the claimant was building on a non-existent incident of race discrimination to bolster up her allegations that as “a person of colour I stood out as different.” 22 of 91 Health and Safety Para 3 of Particulars of Claim 19. HARASSMENT RELATED TO SEX (SECTION 26 EQUALITY ACT 2010) THE UNWANTED CONDUCT i. Comments and actions towards the Claimant in relation to her using the Respondent’s machinery: 1. Clare Brown commenting that the Claimant’s nails were “awful”.[47]The claimant’s allegations in Para. 3 of the Particulars of Claim are extensive, and the Tribunal has dealt with the particular allegations relied on by the claimant as recoded under the heading detriment and discrimination in the agreed list of issues. The Tribunal has dealt with them separately. In short, the claimant is complaining about Clare Brown “mocking her nails” and the claimant raising the health and safety issue of gloves. It is notable that in the claimant’s written submissions, which she has expanded upon by bringing in new evidence not previously referred to in pleadings, witnesses’ statements, oral evidence and cross-examination. The claimant’s account randomly changes, embellishing the original complaint. In cross-examination the claimant questioned Clare Brown extensively about her nails, including the colour, length of nails, putting to Clare Brown that she had called them “awful in front of visitors” and comparing nails. Clare Brown denied each of the allegations, and the Tribunal found her evidence credible.[48]In written submissions para 98 the claimant wrote “she began to treat me poorly, from mocking my nails which in cross-examination she told me it was ‘only banter.” The Tribunal has checked their notes and is satisfied Clare Brown made no concessions and did not accept she had treated the claimant in this way, and said it was “only banter.” The claimant’s written submissions underline the claimant’s tendency to exaggerate, misrepresent and twist the evidence to support her claim, bringing further into sharp focus her lack of credibility.[49]The claimant was provided with a private place to pray during Eid. Diversity and inclusion group ALLEGATION11.2.1 AND11.2.2 ii. Wayne Carter repeatedly asking the Claimant to be part of a diversity group at the Respondent. iii. That the Claimant was singled out to join the diversity group as a person of colour. August 2022 23 of 91[50]On or around 1 August 2022 Wayne Carter Wayne Carter, Volunteer and Community Involvement Manager, explained to the claimant that he was setting up a group focusing on diversity and inclusion referred to as the “diversity group” in this Judgment and Reasons. It is undisputed he asked the claimant whether she was interested in joining the focus group.[51]The claimant alleges that during her employment, she was repeatedly asked by to be part of a diversity group Wayne Carter was planning to set up stating “the first time Wayne made this request was on or around 1 August 2022”. The claimant states she made it clear from the outset that she had no interest in being part of the group. The claimant felt Wayne's requests were inappropriate especially as he asked her on the Mill floor in front of visitors. I was shocked.” The claimant described how she as embarrassed and “it felt he was using a sledgehammer to break a vase. He spoke so loud…. I politely declined…he wasn’t taking ‘no’ for an answer…leading me to view him as just another superficial individual presenting himself as a ‘white saviour’ singling me out for his group only because I was an ethnic minority. The claimant alleged she was repeatedly asked.[52]In her witness statement the claimant records that when Wayne Carter spoke about the diversity group “the penny dropped…I was on the Mill floor speaking to a group of individuals, all around me everyone was white, and I was the only brown individual. I was shocked.” The evidence given by Nicola steward was that she was speaking to the group, not the claimant who was having a conversation with Wayne Carter.[53]Nicola Stewart was working at the time and gave evidence to the effect that Wayne Carter approached her and the claimant, visitors came in and Nicola Stewart moved away with the visitors who were out of earshot. Nicola Stewart was not present during all of the conversation between the claimant and Wayne Carter because as soon as visitors came in, she took them away, which left the claimant and Wayne Carter alone, in direct contrast with the claimant’s evidence.[54]In addition. Nicola Stewart confirmed she had also been approached by Wayne Carter and agreed to take part in the diversity group. It must follow that the claimant was not the only person to have been asked and the Tribunal finds other employees were approached. Wayne Carter’s evidence that he asked a number of people at different times was not disputed by the claimant, who confirmed Wayne Carter had told her he had met with several people. Nicola Stewart does not say the approach taken by Wayne Carter was inappropriate and gave evidence on cross-examination “I was more than happy to join the diversity group and I said yes.” The claimant was aware that Nicola Stewart had agreed to join, and that Nicola Stewart’s was not a “person of colour”. Nicola Stewart confirmed this was the only time she was present when the claimant and Wayne Carter discussed the diversity group, and it follows that she had not witnessed the allegations raised by the claimant in these proceedings about being repeatedly asked 24 of 91[55]The claimant’s written evidence is that “Nicola then joined up and Wayne said then that she was joining the group and to think about it. I felt he was very sneaky not to be specific in front of Nicola about race…”[56]Wayne Carter’s written evidence was that this was the only occasion he discussed the claimant joining the diversity group, On cross-examination Wayne Carter was struggling to recall how many times he had asked the claimant given the passage of time, and he does not recall the first visit. The claimant accepts Wayne Carter’s evidence that they had conversations about them getting to know each other. Wayne Carter’s evidence is that after the first meeting, “I don’t believe I received a definitive yes or no answer, and it was almost left open.” The claimant’s evidence is that she “politely declined…he didn’t accept that and told me to think about it…”[57]Drawing on all of the evidence before it, the Tribunal concluded that the claimant has exaggerated her evidence with regards to being invited to take part in the diversity group. It found she was not pressured by Wayne Carter to join, and his recollection of what transpired has been adversely affected by the passage of time and lack of detail in the claimant’s allegations, who was unable to provide any dates for the subsequent two meetings or any detail as to when and how she was repeatedly asked. The Tribunal accepts that there may well have been another conversation between Wayne Carter and the claimant about the diversity group, after the diversity groups first meeting, however it does not accept the claimant was put under any pressure to join, and nor does it accept the claimant’s evidence that she made it clear to Wayne Carter she did not want to join from the first mention of the diversity group.[58]The Tribunal found the claimant had not been singled out to join the diversity group on the basis of colour. The claimant had not made it clear from the outset that she had no interest in being part of the diversity group. Had the claimant genuinely felt Wayne Carter’s requests were inappropriate especially as he asked her on the Mill floor in front of visitors, she would have raised a complaint at the time or soon after. The incident did not take place as alleged by the claimant Para: 5 Particulars of Claim HARASSMENT RELATED TO RACE (SECTION 26) ALLEGATION 11.2.3 iv. Rex Ashton saying to the Claimant on 21 August 2022 “wouldn’t it be great for a person like you to help Wayne and he’s doing it for the right reasons”.[59]This allegation took place 20-days after the claimant had been asked by Wayne Carter to join the diversity group according to the claimant. The claimant’s written evidence is that she did not engage, “I began to feel embarrassed, humiliated and very much degraded by Wayne.” Rex Ashton’s written evidence was that the claimant was upset, and when asked why the claimant said she as offended by 25 of 91 Wayne Carter asking her to take part in the diversity group. The Tribunal found on balance, taking into account the claimant’s evidence, and that of Rex Ashton and Julie Whitehouse, the claimant approached them upset because she had been asked by Wayne Carter to join the diversity group and believed that this was an act of race discrimination. Julie Whitehouse and Rex Ashton attempted to put her mind at ease and Julie Whitehouse told the claimant that Wayne Carter had approached her. In cross-examination whether the diversity group was a good idea, Rex Ashton said it was an “excellent idea” and Wayne Carter had approached the claimant as part of his duties acting “within the remit of his role.” Rex Ashton did not try and persuade the claimant to join the diversity group as alleged and did not use the words set out in the allegation.[60]The Tribunal found the claimant has misinterpreted and misremembered what had been said. The claimant did not complain about Rex Ashton at the time, and she referenced the allegations in the written grievance as follows: “it seemed that other members now knew about the problem and approached me as to why I would not take on the role. I felt as I was singled out as a person of colour by Wayne and no one else was asked to join this group.” The claimant’s grievance incorrectly records that no one else was asked to join the group, the claimant was fully aware that others had been asked to join including Nichola Stewart, who she was friendly with. The claimant’s evidence is not credible.[61]In the claimant’s written grievance the claimant blamed Clare Brown, who “has put me in a position where I have to explain and defend my choices with people, I do not know but I have to work with. “This evidence further undermined the claimant’s case. In her written statement the claimant refers to bringing up Wayne Carter and the diversity group with Kirsten McGregor, a technical demonstrator, and in relation to the conversation with Rex Ashton the claimant wrote “I do not know how the conversation came about,” The claimant also recorded she told Nicola Stuart, Clare Brown and Christine Whitehouse. Para: 7 Particulars of claim HARASSMENT RELATED TO RACE (SECTION 26 EQA) PARA 11.2.4 AND 11.2.5 v. Wayne Carter telling the Claimant how his neighbour’s son was “beaten up by the local white boys”. vi. Wayne Carter asking the Claimant if she knew how he “could get an Afro-Caribbean man to work here, for example”. 21 August 2022 - the “white boys comment.”[62]The claimant’s dates relating to this allegation are inconsistent; the first time Wayne Cater approached her was on or around 1 August, the second “about a week later” and the third “another few days later maybe a week after the second 26 of 91 visit” around the 15 August 2022, when the alleged Afro-Caribbean man comment was made.[63]It is not disputed that Wayne Carter discussed with the claimant an argument which involved two families, his concern for his family and the police. Wayne Carter disputes he used the words “white boys.” The Tribunal prefers Wayne Carter’s explanation, concluding the claimant’s recollection of the story was not credible and her evidence that Wayne Carter was “trying to intimidate and frighten me into his group-that if I didn’t join his group there would be nobody there to help me – that he wouldn’t help me, no matter what” had no basis on reality. In the claimant’s written grievance there was no mention of male Afro Caribbean under the section “Racism” or Wayne Carter’s alleged attempt at intimidating and frightening the claimant. The Tribunal concluded the claimant intentionally twisted Wayne Carter’s words to suit her agenda of being discriminated against on the grounds of her race and this claim. It is notable that in the claimant’s so called “contemporaneous notes” of the 19 September 2022 there is no reference to the “white boys” allegation, further undermining the claimant’s case. The claimant has not taken the Tribunal to any other contemporaneous note showing otherwise, and the Tribunal concluded this allegation did not take place, preferring Wayne Carter’s evidence noting the claimant did not raise this issue at all in her crossexamination.[64]The claimant has not shifted the burden of proof and the Tribunal finds the comment was not made as alleged by Wayne Carter. The Afro-Caribbean comment[65]The claimant’s evidence is that the Wayne Carter asked her if she knew how he could “get an Afro-Caribbean man to work here” and she reported this to the Ally Tslilika, collections and House Manager.[66]The claimant raised a complaint about Wayne Carter asking her to join the diversity group with Clare Brown stating it was inappropriate because she was singled out as a person of colour. Ally Tsilika, the house and collection manager was also approached, and she referred the complaint to Rosalind Stone, who has an informal meeting with the claimant (which was not documented) and a discussion with Wayne Carter. The claimant also queried whether she had been recruited because she was “a person of colour” and was told that the recruitment process was “robust” and not a “Box ticking exercise” as suspected by the claimant. A discussion took place around the respondent’s values and “Everyone’s Welcome.”[67]In the claimant’s notes dated 28 September 2022 under the heading “Wednesday 19 September 2022” the claimant detailed how she raised a complaint about Wayne Carter and the alleged Afro Caribbean comment. In the claimant’s witness statement, she described how this meeting took place on the 3 May 2023 when she met with Rosalind Stone and complained about the Wayne Carter harassing her and using the term Afro-Caribbean. The claimant wrote in her note “I have decided to keep this diary in case another matter arises. I have three months and 1 day from Sunday last, to make a formal complaint through ACAS” [the 27 of 91 Tribunal’s emphasis]. The claimant was aware of the time limits in a discrimination claim on the 19 September 2022 at the latest, less than three months after she started employment in direct contrast to her evidence before this Tribunal, which was that she was not aware of the Equality Act 2010 and time limits. This further undermined the claimant’s credibility.[68]The claimant’s confusion over dates when the racist comment was made, and her reliance on notes that were not cotemporaneous but written later, also undermined her evidence.[69]The Tribunal found from the credible evidence before it, Clare Brown met with the claimant in August 2022 upset by Wayne Carter’s approach described by the claimant as inappropriate “due to her being a person of colour.” The claimant puts the meeting date on 19 September 2022 and her note of the meeting was described as “contemporaneous” by the claimant in cross-examination. The claimant’s entry is confusing. She recorded, “I really do not want to have any involvement with him on his quest to find an Afro-Caribbean to work at the museum”. The claimant did not cross-examine Clare Brown on whether she was told about the Afro Caribbean allegation.[70]Rosalind Stone arranged to meet up with the claimant to discuss her complaint about the diversity group. She did not document this as it was an “informal meeting.” The claimant did not put anything in email or a grievance about the allegations and the respondent did not record any of the complaints in an email. Rosalind Stone denies the claimant told her about the Afro Caribbean allegation in cross-examination and replied; “not in our first meeting.” The claimant did not challenge Rosalind Stone on this. The claimant’s note of her conversation with Rosaline Stone dated 19 September 2022 described Rosalind Stone in the following terms, “Roz was so lovely” and there is no mention of Afro-Caribbean. The Tribunal concludes the claimant did not raise the issue of the Afro Caribbean allegation in August or in or around September 2022, and it was raised much later in 2023. Allegation: para 17 Was the Claimant subject to unwanted conduct? What is the alleged The Claimant appears to rely on the following allegations as instances of unwanted conduct: Rosalind Stone telling the Claimant that Wayne Carter would be mortified if he knew the Claimant was talking about him.[71]After the first meeting with the claimant, Rosalind Stone discussed with Wayne Carter the allegations concerning the diversity group and the claimant being upset about being asked to join, following which she reported back to the claimant on an unknown 28 of 91 date stating he was “mortified have caused upset, it was not his intention and he would respect her request not to speak to her about it again.” The claimant confirmed she was happy with the outcome and did not intend to take the matter any further. Rosalind Stone considered the matter resolved and that was then end of it was far as she was concerned. Nothing happened until the claimant contacted HR approximately 7 months later, when she informed HR that Rosalind Stone had “handled the situation well”. Had the claimant reported the alleged discriminatory comment made by Wayne Carter Rosalind Stone would have taken action, and so the Tribunal found.[72]The Tribunal found Rosalind Stone had not told her Wayne Carter would be mortified if he knew the claimant was talking about him, as alleged by the claimant. The feelings of mortification on the part of Wayne Carter was because he had been told by Rosalind Stone that he had caused the claimant to feel upset when she was asked if she wanted to join the diversity group.[73]The claimant has not shifted the burden of proof and the Tribunal finds she has misconstrued what was said, the comment was not made as alleged by Rosalind Stone.[74]It is uncontroversial Rosalind Stone advised the claimant a number of times she could raise a formal grievance against Wayne Carter and the claimant chose not to do so.[75]The Tribunal accepts the claimant raised a complaint about the Afro Caribbean comment months after the event, in or around April 2023 when the claimant contacted HR. On the 13 April 2023 the claimant made contact with HR about a number of matters, including “a member of the team who approached her about recruiting diversity, which resulted in him saying “How can I hire an Afro-Caribbean man” she had approached Roz Stone who handled the situation well and it was addressed. There was no reference to the claimant telling Clare Brown. The Tribunal concluded that by the time the claimant contacted HR the fabric of the allegation had changed to something more serious, which was the claimant assisting Wayne Carter to recruit an Afro Caribbean male worker. Taking into account the factual matrix the Tribunal found on the balance of probabilities Wayne Carter had not said this, and nor had he asked the claimant to help him recruit as she alleged, and Rosalind Stone had not told the claimant Wayne Carter would be mortified if he knew the claimant was talking about him. Complaints against Clare Brown Para: 9 of the Particulars of Claim vii. Clare Brown saying “you would have hated being in yesterday. Head office have sent photographs in to take pictures of staff, they want images for the publications and 29 of 91 want to represent people. They have even asked for a volunteer who doesn’t come anymore in a wheelchair to have their photo taken. They even asked Roger”.[76]The claimant made no mention in this allegation in her “contemporaneous note” and the claimant in her witness statement at para 429 refers to Clare Brown laughing at her, however there is no mention of this allegation in the written grievance. Taking into account the claimant’s lack of credibility the Tribunal does not accept that Clare Brown had laughed at her when allegedly commenting about the photographs being taken in the claimant’s absence, concluding Clare Brown had not made the comment and nor had she said or inferred the claimant was a complainer as maintained by the 10 HSE safe practices Para:10 Particulars of Claim[77]The claimant’s allegation at para 10 had nothing to do with safe practices, and the Tribunal was presented with no satisfactory evidence from the claimant that these alleged events ever took place and/or she complained about them, for example, being left to do a presentation. The Tribunal attempted to find a reference to these allegations in the claimant’s witness statement and could find none, The only allegation referenced in October 2022 is the claimant’s allegation concerning Clare Brown “snapping” at the claimant in front of visitors “you’ve been here long enough, you should know how to do that by now.” The claimant did not raise it in her written grievance.[78]In cross-examination the claimant confirmed she was asked about extra shifts, this was a “big reason” for her resignation, and the claimant could not show where in her witness statement she had raised the extra shift allegation. The claimant confirmed she did not rely on Clare Brown snapping as a breach of contract. The claimant’s evidence was confused and confusing for the Tribunal.[79]The claimant raised the issue of being left to do a presentation in front of a group of children, there is no reference to it being last minute and no date is given. It is not clear if it was the February 2023 allegation. The claimant did not take the Tribunal to any supporting evidence, and it is notable that she is relying on an allegation that took place months before her resignation.[80]In conclusion, on the balance of probabilities the Tribunal found the allegations set out in Para 10 of the Particulars of Claim did not take place as described by the claimant, who did not complain about them at the time despite consulting with ACAS in September 2022 according to her own evidence. 11 racial Para:11 of the Particulars of Claim 30 of 91 viii. In the context of a man commenting how “Indians [are] coming to the country and buying all of the water in Aldi”. Clare Brown saying to the Claimant that this was “more banter than racism” and Julie Whitehouse telling Clare Brown the Claimant “should get over herself”. November 2022[81]In an email sent to Clare Brown on the 17 November 2022 the claimant asked for “a chat” to discuss “a couple of racial slurs yesterday…” The claimant confirmed in her witness statement she had spoken to Clare Brown and “I said I was okay, but I needed to know what to do.” A discussion took place about what the claimant could do.[82]Following the meeting Clare Brown emailed the claimant on the 17 November 2022 11.63 “I had another thought – you are within your rights to say to visitors ‘I don’t feel comfortable with the turn in conversation, please excuse me I need to get back to my work…you could even swap floors for a while.”[83]The claimant replied at 1.25 on the 17 November 2022 “Thanks Clare, Brilliant. That’s good…That’s extremely reassuring to know.”[84]The exchange of emails reflect that the claimant’s allegation set out in Para 11 of the Particulars of Claim and the harassment allegation at paragraph 11.2.8of the agreed list of issue, have no basis and the burden of proof has not been reversed.[85]Julie Whitehouse was off sick on the date in question having undergone an operation, and there was no meeting between the clamant, Clare Brown and Julie Whitehouse to discuss the racism. The Tribunal finds that there was no “out of the blue” meeting, there was an arranged meeting with Clare Brown, no meeting with Julie Whitehouse about the racism on the 16 or 17 November 2022, and the comments attributed to both were not made. The claimant was happy with the way Clare Brown dealt with the complaint, describing it as “brilliant” and it was not an issue raised in her written grievance. The Tribunal found this allegation is yet a further example of the claimant fabricating evidence. Julie Whitehouse was off sick until the 30 September 2022; it cannot have happened as described by the claimant and so the Tribunal found including the reference to the racism being “more banter than racism” and the alleged comment “Julie told Clare that the Claimant “should just get over herself” were not made. The Claimant appears to rely on the following as qualifying disclosures: 31 of 91 Disclosure 3.3.1: On or around 1 January 2023, the Claimant informing Darren Whalen that there were no work gloves for the team to use when working on machinery. Para: 12 of the Particulars of Claim January 2023[86]On or around the 1 January 2023 the claimant asked Darren Whalen for work gloves for “us to use.” The claimant’s evidence is that Darren Whalen said he did not have any, he would have a look and would order some. The undisputed evidence was that the respondent had always provided work gloves but not heavy-duty gloves and the claimant is not correct when she pleaded that there were no work gloves for the team to use.[87]Darren Whalen does not dispute the claimant asked for gloves, however, he maintained that he had told the claimant to ask Clare Brown to order them. In oral evidence Darren Whalen agreed with the claimant that she had told him the gloves were not suitable. In cross examination of Darren Whalen, he confirmed the claimant was not saying there were no gloves, but the gloves provided were not suitable. This is not how the claimant put her allegation in para.12. There were work gloves for the team to use and the claimant’s request was for another type of glove, heavy duty, and so the Tribunal found.[88]The claimant emailed Clare Brown on the 18 January 2023 “I asked Darren for gloves last week. My hands are so delicate. Ha Ha,” [the Tribunal’s emphasis]. The claimant requested “heavy duty gloves. Darren did not have any but said he would order some for our team.”[89]Clare Brown responded “I will order gloves and masks” on the 19 January 2023 by email. She did not give the claimant’s request a second thought. The Tribunal found as a matter of fact taking into Clare Brown’s mental process, there was no causal link with the claimant making a request for heavy duty gloves and the detriments alleged to have occurred by Clare Brown avoiding her for the last two months of her employment and sharing disclosures about health and safety (see below for the Tribunal’s findings on these allegations.)[90]The claimant brought her own gloves in, which she seemed happy with, having requested the respondent provide heavy duty gloves which it agreed to do and an order was placed. In short, the claimant requested gloves because she had delicate hands and did not have in her mind public interest at the time. The Tribunal notes the tone of the claimant’s email to Clare Brown, in complete contrast to later emails, undermining the claimant’s allegation that she believed Clare Brown was discriminatory. It is undisputed Clare Brown ordered the gloves and the Tribunal finds that this was not an issue for her. 32 of 91 PROTECTED DISCLOSURE 3.3.2 On or around 24 January 2023, the Claimant reporting a “near-miss” incident which occurred on 18 January 2023 to Clare Brown. Para:13 of the Particulars of Claim[91]The Tribunal struggled with understanding this allegation and the claimant’s dates with the alleged near miss occurring on the 18 January 2023 and Rex Ashton allegedly calling her a “silly girl” on the 17 January 2023.[92]The Tribunal finds the allegation refers to an incident on 18 January 2023 when the claimant was working with Julie Whitehouse, who was showing her how to disengage a belt on one of the machines. The belt came off the machine and could only be put back on once the machine was made safe. The claimant put her hand towards the machine when it was switched on, and Julie Whitehouse said “no” to her, turned the line shaft off and isolated it. The claimant had made an operational error during training, and Julie Whitehouse said she had also committed the same error in the past and would ask Rex Ashton to fix the belt, which he did that day in the presence of the claimant and Julie Whitehouse.[93]Julie Whitehouse and Rex Ashton did not consider it a reportable “near miss” and the incident was not reported on the respondent’s IT system “MYplace.”[94]The claimant did not report it as a near miss and did nothing until she spoke some days later to Clare Brown on the 24 January 2023. Clare Brown discussed the matter with Julie Whitehouse who told her the claimant had tried to put her hand in the machine whilst it was still running, to fix the problem. Clare Brown did not take the view it as a near miss and did not report it. Clare Brown’s evidence that the claimant was accessing MYplace where the near miss documents were, and could have completed the form.[95]In her evidence before the Tribunal the claimant confirmed she was experienced in risk management, and it concluded had she genuinely believed it was a near miss and an imminent potential health and safety risk she would have reported it without delay. The claimant was told about the documentation on the respondent’s intranet available for reporting a near miss incident which could be used at any point.[96]The claimant did not record it as a near miss even when she was told that she could record it. The claimant was provided with the necessary information for the process of instant reporting, for example, on 10 March 2023, and she still had not reported it by the time she left her employment in June 2023. It was around this time the claimant was in email correspondence with Clare Brown about the gloves, and yet made no mention of any disclosure or concern for the public (including colleagues) as a result of the 18 January 2023 incident when she was training. 33 of 91[97]On the balance of probabilities, the Tribunal found that the claimant had committed a common training error on the 18 January 2023 when the belt came away from the machine as a result of the claimant pulling it too hard, and it fell off the machine. Julie Whitehouse, who was training the claimant, did not believe it was a near miss. Clare Brown did not believe it was a near miss. Both were more experienced in comparison with the claimant, who was in the first few months of training. It was a personal matter whether an employee considered an incident a real miss or not, and it was a personal responsibility to record it on the respondent’s system if an employee concluded it was. The claimant never recorded it.[98]An email to the claimant and the team was sent by Clare Brown on 10 March 2023 informing the claimant and the team how to report on MYplace applications…if you are unable to leave your floor, please radio me or Darren – we can fill out the form on your behalf. It is the responsibility of you all to report an incident and do it immediately…” The claimant was made aware of how she could report near misses on the respondent’s system, and she knew that the obligation was on her to complete the form and yet she failed to do so. The Tribunal concluded on the evidence before it the claimant did not genuinely believe it was a near miss and in the public interest for her to report it. The ”silly girl” allegation[99]The claimant’s allegation that Rex Ashton called her a "silly girl” was in response to the 18 January 2023 incident with the machinery belt. This was denied by Rex Ashton in cross-examination. The claimant’s evidence was Rex Ashton said loudly “Well, she’s a silly girl, she could have lost her finger. They both giggled.” In oral evidence on cross-examination the claimant stated she had taken a note of the comment, which she had deleted and then reported to Clare Brown. The alleged comment was not documented until the claimant’s written grievance, and on the claimant’s account Rex Ashton was not talking to her. Taking into account the Tribunal’s issues with the claimant’s credibility and her evidence that she had documentary evidence but delete it, the Tribunal preferred the evidence given by Rex Ashton that he had not described the claimant as a “silly girl,” she was in no danger of losing a finger and the incident was not a near miss. Julie Whitehouse was questioned by the claimant about the alleged near miss, and she was not cross-examined about laughing over a silly girl comment. The Tribunal concluded that this incident did not happen as described the claimant and the burden of proof has not shifted. 26 February 2023 personal objectives meeting[100]On the 26 February 2023 the claimant met with Clare Brown to discuss her personal objectives. The claimant spent some of the time raising concerns about several of her colleagues and Clare Brown for not discipling them. Clare Brown was upset; she felt the claimant was undermining her as manager and made notes of the meeting referring to “things really turning bad.” The Tribunal has read the note in detail, which reflects the claimant criticising a number of colleagues about their performance, and Clare Brown trying to set her objectives which the claimant saw as pointless. Clare Brown recorded “I felt totally bamboozled – in all my years as a line manager I have never been spoken to like that – aggressively criticising me and the team…She wanted me to do all her training.” 34 of 91[101]Clare Brown’s witness statement largely reflects the contemporaneous notes she took and the covertly recorded conversation with Darren Whalen, and the Tribunal found her evidence to be more credible in comparison to the evidence given by the[102]The 6 March 2023, the date relied on by the claimant, is wrong. Nothing happened on that date. The claimant has not made an application to amend that date, however, had she made one the Tribunal would gone on to find that the 26 February 2023 was a difficult meeting at which the claimant raised a number of issues about her team and manager, undermining the evidence before this Tribunal, which was that “she loved” her job. During this period the claimant had made a number of threats to colleagues about resigning. It is clear from the contemporaneous evidence the claimant was talking about leaving, and at no stage did she file a written grievance setting out her allegations including the perimenopausal comments allegedly made by Clare Brown a third time on the 26 February 2023, until resignation. It did not make sense to the Tribunal why Clare Brown would have made such a comment at the meeting, given the way she described the claimant’s aggressive criticism of the team and herself in the notes set out within the bundle. This was not an occasion when Clare Brown was trying to assist the claimant, it was an upsetting meeting for both, given the claimant’s criticism and the way she approached her manager. In written evidence Clare Brown stated the claimant had apologised to her later for her behaviour, and this was not disputed by the claimant in cross-examination.[103]By the 26 February 2023 the relationship between the claimant and Clare Brown was breaking down, and on the 27 February the claimant complaint to Suzanne Kellett about Clare Brown. Clare Brown raised a grievance on 13 April 2023 when the relationship further deteriorated after another meeting with the claimant. Para 15 of the Particular of Claim ALLEGATION 3 3. Clare Brown’s comments towards the Claimant stating, “you should come to me if you have a problem, not go behind my back”. Protected Act 12.1.1 Informing the Respondent’s People Services Support Line and/or Suzanne Kellett of Clare Brown’s discriminatory behaviour on 27 February 2023.[104]The claimant contacted Suzanne Kellet on the 27 February 2023 complaining about Clare Brown, having been in contact with the Respondent's People Services support. The Tribunal was not taken to any notes confirming the claimant’s 35 of 91 conversation with People Services Support. The claimant makes no reference in her witness statement of any contact with People Services. Suzanne Kellett wrote down what was said at the 27 February 2023 meeting and the claimant has not disputed the content. Claimant meeting with Suzanne Kellett 27 February 2023[113]VICTIMISATION (SECTION 27 EQUALITY ACT 2010) 113.1 Did the Claimant carry out a protected act? The Claimant relies upon the following: 113.1.1 Protected Act 1 – Informing the Respondent’s People Services Support Line and/or Suzanne Kellett of Clare Brown’s discriminatory behaviour on 27 February 2023. 105. The claimant met with Suzanne Kellett on 27 February 2023 according to the notes in the bundle taken by Suzanne Kellett, who discussed the claimant‘s complaint about Clare Brown following the one to one objective meeting on the 26 February 2023. At this meeting the claimant alleged Clare Brown had made three comments about her being peri-menopausal and “CB…criticised Abby in front of visitors after she made a mistake on one of the floors…” along with a whole raft of other complaints and allegations concerning Clare Brown, colleagues and the respondent generally. 106. The upshot of the meeting is reported in a note taken 1 March 2023 when the claimant was asked by Suzanne Kellett how she wanted her complaint to be resolved and the claimant said, “she just wanted Clare not talk about personal information.” 107. The Tribunal considered the note taken by Suzanne Kellet of the 27 February 2023 meeting in detail, and there is no reference to the words “misogynistic, homophobic (due to her treatment of other members of staff), and sexist” as alleged by the claimant. The claimant was advised she should submit a grievance, and there was no mention of this in her written grievance. Suzanne Kellet’s note supports the evidence of Clare Brown that the claimant was complaining about her colleagues’ performance and abilities. In addition, the claimant raised the “near miss” incident, Clare Brown on three occasions referring to the claimant as peri-menopausal, Clare Brown “does not come of the floor enough to support the team…doesn’t support the training” and there were issues with the conservation of the machines. The claimant complained about the grade progression process, not receiving a “very good” at her appraisal, and Clare Brown criticising her in front of visitors. The Tribunal cannot find any reference in the notes to the claimant complaining Clare Brown had shouted at her as alleged at Para 15 of the Particulars of Claim, concluding the claimant has not raised this complaint with Suzanne Kellett. 108. In the claimant’s witness statement, the claimant referred to the following allegation: “early in my employment” when Clare Brown; “was getting paranoid about people talking about her shouted over my shoulder ‘you should come to me if you have a problem, not go behind my back.’” Clare Brown disputes this allegation. The 36 of 91 claimant’s allegation at para 15 of the Particulars of Claim, if it took place at all, can only have been dated before 27 February 2023 and this brings into question the credibility of the claimant’s evidence. In cross-examination the claimant stated it allegedly happened in November 2022. There is a big difference between “early on in my employment” and November 2022. The claimant’s contradictions in the dates this allegation took place undermines her credibility, considering the lack of cotemporaneous documentary evidence, and the Tribunal finds it did not happen on the balance of probabilities. 109. In conclusion, the Tribunal finds taking into account the more credible evidence of Clare Brown and the notes of Suzanne Kellet, that the claimant had not alleged Clare Brown was “misogynistic, homophobic… and sexist.” There is no hint in any of the documents referred to the Tribunal or in the witness statements, including the claimant’s, that Clare Brown was accused of “homophobia”, and the Tribunal concludes that this is yet a further example of the claimant expanding on her evidence and exaggerating the complaints she allegedly made at the time for effect with a view to strengthening her discrimination complaints. Para:16 of the Particulars of Claim DIRECT AGE DISCRIMINATION (SECTION 13 EQUALITY ACT 2010) AND HARQASSALLEGATION8.1.1 TO 8.1.7 AND HARASSMENT RELATING TO AGE AND SEX (SECTION 26) 8.1.1 Clare Brown telling the Claimant she “grossly overthinks things” and mocking the Claimant by making hand gestures suggesting the Claimant’s complaints are in her mind.8.1.2 Clare Brown saying, “I know what’s wrong with you, you’re8.1.3 Clare Brown asking the Claimant if she has had a blood test to show whether she is perimenopausal or not.8.1.4 Clare Brown telling the Claimant she should go home and tell her husband to take her on holiday.8.1.5 Clare Brown telling the Claimant she is perimenopausal during her PDR meeting on or around 6 March 2023 and that is why she finds certain comments inappropriate.8.1.6 Clare Brown assuming the Claimant was menopausal and/or perimenopausal.8.1.7 Clare Brown not taking the Claimant’s complaints seriously and considering the Claimant was oversensitive due to perimenopause and/or the menopause. 37 of 91 110. The contemporaneous evidence shows the claimant was complaining to Suzanne Kellert about Clare Brown at the meeting on the 27 February 2023 recorded above, which predates when the claimant said the alleged incident took place on 1 March 2023. The claimant’s evidence on the dates was changed to the 8 or 26 February 2023 after the team meeting, and not the 1 March 2023. 111. The claimant’s witness statement confirmed it was 8 February 2023 and not the 1 March 2023, describing how Clare Brown was clapping her hands and bouncing up and down when diagnosing the claimant as perimenopausal. In oral evidence under cross-examination that claimant’s evidence was confused and confusing. 112. Suzanne Kellett’s note of the 27 February 2023 usefully pinpoints that the discussion around peri menopause must have taken place on a date before the 27 February 2023. The notes record the claimant informed her “CB has…made comments 3 times about Abby being peri menopausal. This isn’t something Abby has raised with CB and she feels it isn’t appropriate. CB apparently come to see Abby after she raised concerns about DW – CB told Abby she was over-reacting, perimenopausal and her husband should take her on holiday.” In the notes there is no reference to Clare Brown using hand gestures, asking about a blood test or clapping her hands and bouncing up and down when diagnosing the claimant as peri menopausal. 113. In her written statement and in cross-examination Clare Brown’s evidence was that on a date prior to the claimant making the complaint to Suzanne Kellet on the 27 February 2023, the claimant approached her tearful saying she did not feel herself, and Clare Brown shared how she had felt when peri menopausal. The claimant said she was tired, and Clare Brown suggested “it would be good to take a break.” In oral evidence under cross-examination Clare Brown denied telling the claimant to go and see her doctor.[114]The claimant’s grievance investigation notes are different in a number of respects, the claimant alleging Clare Brown followed her across the floor questioning her about doctor’s appointments. The claimant did not put to Clare Brown in cross-examination that she had asked the claimant if she had a blood test, and the claimant in crossexamination accepted that her comment about the blood test made by her in the grievance “was a lie”. In her grievance the claimant at the end stated, “I am not menopausal…my blood test can confirm that.” This given a further question mark over the claimant’s credibility given the claimant’s admission that there was no blood test.[115]Suzanne Kellett in her notes of the claimant’s grievance presents a different picture from the one described by the claimant and Clare Brown, which suggest both had a different recollection of the discussion. The Tribunal prefers to rely on the notes taken by Suzanne Kellett as to what was said, and Clare Brown’s more credible evidence. Susan Kellett recorded Clare Brown saying, “AJ stated I don’t know if I should be in another team…she [was] emotional which was not like her, and she had cried. Clare Brown responded that she could be perimenopausal because this is how CB felt, this was a suggestion not a statement. AJ has mentioned her husband has talked about taking a holiday many times and was struggling to pin him down to take 38 of 91 time off. CB mentioned that she should tell him you are feeling emotional and tired and need to take a holiday. Against this was a suggestion and not a statement.” Clare Brown accepted in cross examination she said the claimant could be perimenopause because when the claimant was saying she was tearful it reminded her of the time when she was peri menopausal.[116]On the balance of probabilities, the Tribunal is satisfied that Clare Brown was trying to be supportive and helpful towards the claimant, and there is no satisfactory evidence that the claimant told Clare Brown that she did not want her to talk to her in this way, and the claimant’s detailed description of what allegedly took place is not reflected in the evidence. The Tribunal found the claimant’s evidence was exaggerated, and whilst she may genuinely have interpreted the conversation differently to Clare Brown, she embellished it to fit into her view, which was that she was being discriminated against on the grounds of her sex.[117]On the balance of probabilities, the Tribunal found Clare Brown had described her experience of peri menopause to the claimant and had not questioned the claimant about hers. Clare Brown had been told by the claimant, who had offered up the information voluntarily, she was not menopausal on the first day of the claimant’s employment.[118]There is no satisfactory evidence that the claimant was told by Clare Brown she was not taking her complaints seriously due to the claimant being oversensitive as a result of perimenopause or the menopause, and given the claimant’s lack of credibility and the factual matrix as found by the Tribunal, it concludes Clare Brown did not say this to the claimant. The more credible evidence before the Tribunal was that the claimant’s complaints were taken seriously, including the lengthy conversation the claimant had with Darren Whalen which reflects what was going on at the time. The claimant was eager to advance, and she wanted Clare Brown to train her to the next level. The Tribunal found the claimant’s repeat request for Clare Brown to train her undermined the claimant’s allegation that her complaints were ignored by Clare Brown. It raises the question, why would the claimant want to be exclusively trained by a manager who treated her in this way, one who she described in positive terms in the same breath as stating she did not trust her in the discussion with Darren Whalen. It is notable the claimant did not cross-examine Clare Brown on her allegation concerning complaints being ignored. March 2023 Transcript of covert recording 8 March 2023 Darren Whalen and the claimant 9 VICTIMISATION (SECTION 27 EQUALITY ACT 2010)12.1.1 Protected Act 1 – Informing the Respondent’s People Services discriminatory behaviour on 27 February 2023. 39 of 9112.1.2 Protected Act 2 – Informing Darren Whelan of the same discriminatory behaviour on 8 March 2023[119]The claimant covertly recorded a lengthy meeting with Darren Whalen held on the 8 March 2023. She relies what was said at that meeting as a protected act. The meeting ran for over one and half hours as reflected in the timings of the transcript, which was in two separate parts.[120]The claimant knew she was recording the conversation, refers to Julie Whitehouse being “brilliant” when questioning her ability, and Clare Brown “lovely” but could not be trusted, amidst a raft of criticisms about other employees. The meeting took over hour and a half hour, finishing as the Mill was closing. The claimant complained about how the machines were looked after, that she was not proceeding quick enough in her training and wanted Clare Brown to personally train her, accepting that Clare Brown did not have enough time to do so, criticising rotas ad individual team members including their capability, criticising the lack of progress through the different levels of grades. The claimant made it clear she wanted to quickly progress to the same grade as Clare Brown, who was at managerial level. The entire conversation was dominated by the claimant discussing how she felt about her employment and “loved” her job, there was one brief mention relating to Wayne Carter and the Afro-Caribbean comment, and a brief reference to being asked by him to join the diversity group and why she felt upset. The claimant also referred to perimenopause three times and men carrying out jobs on the machines and it had become “a misogynistic workplace.” The Tribunal notes the recording reflects the following was said below. The claimant has added her own interpretation of the start of the meeting “In this recording Darren Whalen…responds to concerns raised…about…Clare Brown, by mentioning he has Indian friends…The recording began at this point due to a similar experience of tokenism with Wayne Carter a few months earlier…The dialogue is between [claimant] and Darren Whalen. Abida was invited to speak with Darren after making several verbal reports about Clare Brown.” The Tribunal notes that the transcript does not include any reference to “Indian friends.”120.1 “AJ [the claimant] I mean, I really do like Clare, and I think generally speaking, she is a good manager. She obviously has created a nice environment…I’ve told you about these personal comments Clare has made which are…completely and inappropriate.120.2 The claimant spoke about asking Clare Brown giving her the opportunity to carry out a machine repair “Just an easy job…I felt so disappointed…there’s not many jobs I really get to do, and I’ve specifically asked…a few times…Can do this? And it’s just left to the men. So I said to somebody. I can’t remember who I said it to, but I feel like it’s become a misogynist. Workplace where the men, OK they’ve been here for 20 years. They get to do it but I know how to do these things…this is a tiny thing in the big thing” [the Tribunal’s emphasis]. In response Darren Whalen assured the claimant “I don’t want just one or two people doing maintenance…it might only at the moment because of experience that at points certain people are doing it but generally I mean most of us have been here 40 of 91 only a year.” There was a discussion about the maintenance programme and the claimant commented about Clare Brown’s refusal to let her carry out repairs on the machines “I mean, it’s not a big deal. But it just felt a little bit unfair.” Darren Whalen responded “It’s not the men doing the work. Neil and Rex are the most experienced…and the most experienced people who we’ve got” to which the claimant said “…they’re brilliant.” Darren Whalen said, “we tap into people experience…I know your previous experience as an engineer and it might be that come a few months when you’ve been here longer and you’ve a bit more experience…that you’re using your experience as well.” The claimant responded, “I appreciate that you know you don’t know what I’m capable of.”120.3 There was a discussion about Clare Brown’s comments which are not set out in any detail by the claimant. The claimant explained “I didn’t feel she was being malicious. I felt she was just being careless…why it led to this point…Rex snapped at me and I just spoke to her. I think it was our first one-month meeting and I spoke to her and I said…I just want to know how to deal with him…is he grumpy ol’ so and so…and I said please don’t talk to him about this and she did…” [the Tribunal’s emphasis.) The claimant complained that Clare Brown told her “bad stuff” about Rex Ashton.120.4 “Then we had an issue with Wayne. Where you know, three times he came to me on the shop floor and spoke to me about diversity and inclusivity.” Darren Whalen responded “yeah.” The claimant continued “I’ve had some quite bad times with the outside world…I applied for the job because I had been through a fortnight or [of] horrendous situations where people were just coming at me racially…just outside people…so to suddenly come to a job where the first thing I’ve been approached about is diversity and inclusivity and I try to…divert his attention and say, look you need to go to schools to get diversity…what qualifies me to know this? To help him employ people…and the third time he says well, Abi, how do you get an Afro Caribbean person to work…I was feeling vulnerable about race…I’m not here to do your diversity thing” [the Tribunal’s emphasis].120.5 The claimant referred to fixing machines and commented “this has been a brilliant day because I fixed that machine.” When asked how she would like the matter to be resolved, the claimant stated the points she had brought up were “really petty…I enjoy my job and I like Clare…but I don’t trust her…the little respect I have for her is diminishing…all these little back biting comments…Clare spends a lot of time telling me she hates Rex…I feel this is a school playground behaviour…I actually think Rex is cool…he spent time helping me learn a lot of things…” [the Tribunal’s emphasis].120.6 The claimant complained about other staff leaving work early when she could be trained in that time “helping me progress.” 41 of 91120.7 The claimant spoke about the incident with the belt on the machine (referred to as the near-miss incident in this case) complaining Julie Whitehouse had “showed me wrongly…I’ve nearly caught my finger which could have been shredded my finger in the machine…I was cross about that and she had a good giggle about it with Rex and Clare…OK maybe I misheard. Maybe I’m being paranoid…” The claimant was told about the near miss form and that it was “the person responsible to complete the form” and Clare Brown would “make sure everyone is fully aware.”120.8 Darren Whalen confirmed a person would not be signed off a machine until “they feel they can do it. You will not get the ability to run it, understand it until you’ve actively start to operate that yourself and run it. And like any historic machine that comes over time. And it really, really does…”120.9 The claimant raised Clare Brown being asked to come to the Mule room when she was presenting to schoolchildren “and she did. She was brilliant. She came over straight away…I said can you stay and watch while I present it to them and she scurried away, she said no…it was like I don’t want to…I’ve taught high school kids plenty…I taught secondary maths…. It’s just unreal, just a lot of pathetic little things that all built up.” The claimant confirmed had Clare Brown offered to send her help “I would have said no…she should have just listened to me…Where was she in such a hurry to go…if she offered someone else that’s not training me.”120.10 The claimant’s objectives meeting with Clare Brown was discussed the claimant stating, “at that point I was about to resign” to which Darren Whalen responded “…so I don’t know your background in terms of previous employment to know how that worked out” and the claimant responded, “No because I have kept it deliberately very vague.” A discussion took place about grades, the claimant stating she was not going to wait 35 years before going up a grade to 9, the same grade as the specialist weaver. Clare Brown’s grade was discussed, and the “huge team” managed by her plus volunteers and duty manager role. The claimant complained Clare Brown was “never on the shop floor” and Darren Whalen went into details about the role, the fact Clare Brown was “always at the end of a radio…I’m also at the end of a radio…there’s a duty manager, there’s senior lead” to which the claimant responded “I don’t know what Clare does on a daily basis” confirming the training she had been given was “excellent…of standard” as described by Darren Whalen.120.11 The claimant stated with reference to training “I appreciate that it does take time and I appreciate that the knowledge is there, it just, I need to eek it out” stating that she picks up things quickly…I’m not saying I want to be let loose on the machines…I’ve asked Clare half a dozen times…I’ve asked her to train me…but she can’t.” Darren Whalen responded, “Clare won’t have enough time to train you” and the claimant responded, “…she’s not got time and I appreciate that.” Darren Whalen asked the claimant is she wanted to become involved in documenting the safe running of the 42 of 91 machines commenting “every machine has it quirks” later on in the transcript.120.12 The claimant referred to Clare Brown “approaching me, and we had that silly conversation which she has not brought up three times. I mean, in the objectives meeting I had to cut her off and say please don’t say I’m perimenopausal again” before moving on to her objection to being set objectives when there was no progression “I just want progression, I want the carrot, where’s that carrot?” Darren Whalen referred to the claimant only being there for 6 months and to look at any roles where she can use her transferrable skills “looking for other opportunities…if you want time to shadow and help, we can help support that.” The claimant confirmed “In this moment of time I’m still learning how to use the machines, and I’m still in the weaving shed, I’ve only just started.” When asked what she wanted the outcome of the conversation to be the claimant said, “I just want Clare to know that…these little comments here and there, after our objectives meeting…I’m being honest because I like her.”120.13 Darren Whalen attempted to get the claimant to explain her issue with Clare Brown and little comments” asking if there was a clash of personality ; “I’m trying to probe because I’m struggling to understand.” The claimant explained Clare Brown would say things like “it’s because you have a mechanical mind…your overthinking things…she doesn’t respect that I know these machines and its you too, you’re overthinking it… complaining she had said “no” when the claimant asked if she could “get rid of broken bits of metal and a pot of oil.”[121]The claimant had a discussion on 8 March 2023 and with Rosalind Stone and HR on 13 April 2023 raising the Wayne Carter’s allegation about an Afro Caribbean man, and she was told to put it in her written grievance. The claimant failed to do so, and her written grievance was silent on this point. Para:17 of the Particulars of claim[122]The claimant’s evidence in her witness statement is that the alleged incident took place on the 26 March 2023 at her professional review (“PDR”) with Clare Brown. The Tribunal was not shown any completed personal development documentation/form or any document where the claimant accused Clare Brown of being “insulting, you’re mocking me” and Clare Brown said she was sorry the claimant felt that way and apologised. There is no record of the PDR, although there are objectives in the bundle. The claimant alleged Clare Brown referred to her as perimenopause a third time, which does not make sense given her complaint she made to Suzanne Kellett on 27 February 2023 alleging Clare Brown had made comments three times about her being peri menopausal. The claimant appears to have her dates of the PDR and what was said at it confused.[123]The Tribunal found Clare Brown and the claimant met on the 29 March 2023 to discuss the claimant’s objectives, training record and risk assessment. The claimant emailed Clare Brown on the 31 March 2023 after the new PDR form, objectives and 43 of 91 information regarding risk assessments had been sent to the claimant and colleagues on 10 March 2023. The claimant set out her objectives including her belief that “we could preserve the machines better with Ally’s help” and the opportunity to investigate a technical fault of the spinning mule.” Clare Brown was surprised by the claimant’s “patronising tone” and was concerned that she was not focusing on her core training and felt the need to develop risk assessments already in place. The claimant had been training for approximately 9-months and was not competent in some of the core areas, yet believe she had the expertise to carry out work on the machines and investigate technical faults. Clare Brown was concerned by this and the claimant’s attitude towards her, and this had no causal connection with age, race or sex, and so the Tribunal found. April 2023 Clare Brown referring to the fact a group of visitors were French on or around 12 April 2023. ALLEGATIONS 9.2.1 (B), (C) AND (D). Comments and actions towards the Claimant in relation to her using the Respondent’s machinery: (b) Clare Brown telling the Claimant that she was “not allowed to ask questions about machines”. (c) Clare Brown telling the Claimant “It wasn’t her job” to solve any issues with the Respondent’s machinery and that “it was left for the men to do” (d) Clare Brown saying, “you have only been here six months; they have been here 20 years”. The reference to the “French Group.” The meeting on 12 April 2023 between Clare Brown and the claimant[124]The relationship difficulties between the claimant and Clare Brown came to a head on the 12 April 2023 at a meeting between Clare Brown and the claimant arguing the point over machinery issues and how she did not accept what Rex Ashton said. The claimant was not happy when it was pointed out that she had only been employed for 6 months and should concentrate on her learning. The Tribunal accepts as credible Clare Brown’s evidence that the claimant criticised Rex Ashton and accused Clare Brown of being malicious and unprofessional. Clare Brown believed the claimant was behaving inappropriately, the care of the machines was adequate, and the service 44 of 91 manual and operational manuals produced by Nicola Stewart useable. Clare Brown was concerned that the claimant, who had yet to complete her training, was disrespectful to experienced team members, undermining individuals including Wayne Carter. Clare Brown was concerned for the team and with the claimant’s attitude towards her management, picking on every word she said and twisting it, manipulating words, and playing people off one against another. In her grievance Clare Brown referred to the claimant’s “verbal aggression…Going forward I find it very difficult to have her on my team. I would like her to apologise but ultimately it would be very difficult to trust her.”[125]The note referred to by the claimant for the 12 April 2023 described the “event” as “Clare accuses me of trying to be too intelligent.” In the body of the note the claimant described how Clare Brown questioned her about the mule and “I said I was very unhappy with the way she spoke with me and ask why she was always contrary to with whatever I suggest…I said that I know she would have been malicious about me…I also said I had never been rude to her, and she is constantly being rude to me and she has to stop.” 22 HSE Para: 22 of the Particulars of Claim[126]The claimant alleges without specifying a date Clare Brown “frequently” shared details of issues she had with the claimant, including her assumption that the claimant was menopausal, with other members of the team, and this was a breach of the implied term of trust and confidence.[127]In the claimant’s oral evidence on cross-examination the claimant confirmed she had personally never witnessed Clare Brown sharing personal information as alleged, and she explained that Clare Brown must have discussed it because employees talked about menstrual and kidney problems. According to the claimant’s own evidence, she had conversations with Neil Holden and Julie Whitehouse, as reflected in emails. The claimant does not say that any person told her Clare Brown had discussed the claimant with them. Julie Whitehouse denied she had made “hand gestures” towards her abdomen which the claimant inferred was a reference to her menopause. The claimant did not challenge Julie Whitehouse on her evidence that she had not made a hand gesture in cross-examination. In her grievance the claimant stated that this happened once.[128]The Tribunal did not find the claimant’s evidence credible, and preferred the evidence given by Clare Brown and Julie Whitehouse, that the claimant bought up her health problems voluntarily, and there was a discussion between the claimant and Julie Whitehouse informing the claimant she wanted to speak to Clare Brown about what they could do to help her if she needed to leave the floor urgently.[129]The claimant does not date when Clare Brown told her she was upsetting the team and people had been there for 20 years and the claimant 6 months. In oral evidence the claimant referred to page 311 in the bundle, a document dated 12 April 2023 diary entry when this was allegedly said. The Tribunal read the handwritten 45 of 91 notes and the transcription, which were completely different concluding the claimant was elaborating her notes to fit in with the case she was presenting. This raised yet a further issue of credibility and the notes cannot be relied on as contemporaneous notes of conversations the claimant had. The claimant has made it clear that they are her contemporaneous notes, when on a common-sense reading, they could not have possibly been contemporaneous, and the Tribunal is concerned that the claimant has prepared notes to support her claims.[130]The Tribunal concluded Clare Brown’s comment has been taken out of context. Clare Brown in her written statement refers to an interaction with the claimant on the 12 April 2023, which was not challenged by the claimant in cross-examination. Clare Brown’s evidence is that the claimant was arguing about cotton breaking and giving her view saying, “she had the mathematical skills which had saved companies thousands of pounds.” Clare Brown told her “as she had only been here for 6 months, she should concentrate of completing her core training” and queried how the claimant’s comment that “even a 3 year old can see it is not right” would make “individuals like Rex and Neil feel who have detailed experience of machines as they have been there for 20 years.” The claimant’s reliance on this as a fundamental breach of contract has no basis, and her evidence has been specifically slanted to suggest there was a breach of contract when there was none.[131]With reference to the alleged acts of harassment the Tribunal found Clare Brown did not tell the claimant that she was not allowed to ask questions about the machines. She did not tell the claimant it was not her job to solve issues with the respondent’s machinery, the claimant was told to concentrate of completing her training. Clare Brown did not tell the claimant that issues with the respondent’s machinery “was left for the men to do.” She however did make it clear that unlike the claimant, Rex Ashton and Neil Holden had been working on the machines for twenty years, which was an undisputed fact that had nothing to do with sex and so the Tribunal found. It is notable the clamant did not cross-examine Clare Brown on the allegations set out above. On the evidence before it, the Tribunal found, as supported by the earlier transcript, the claimant was eager to advance and learn more about the machinery. She was part way through her training and did not possess the same level of expertise as other members of the team ,particularly those who had been servicing the machines for decades. It is a fact that the three male colleagues were the most experienced and the claimant herself had acknowledged to Darren Whalen Rex Ashton and Neil Holden were brilliant” and she was made aware as recorded by her, Darren Whalen wanted the claimant to be developed in the running and repairing of the machinery in the future. HR advice to Clare Brown[132]Clare Brown reported her concerns to HR and indicated she wished to take out a grievance against the claimant for her behaviour. HR’s advice to Clare Brown was that a manager could not raise a grievance about somebody they line managed, and support would be put in place. If the claimant issued a grievance, it would be 46 of 91 investigated, an outcome delivered and “draw a line in the sand…need to be clear with Abi about the contents of her RP and remit of her role."[133]The claimant had a discussion with Darren Whalen on 12 April 2023 complaining about Clare Brown’s “bullying,” explaining that the team were wrong about the temperature and humidity of the Mule machine, and Clare Brown had told the claimant to be careful not to undermine Rex Ashton and Neil Holden who had been working on the machines for twenty years when the claimant had been employed for 6 months, described by the claimant as a “red flag” which signalled Clare Brown was bullying her.[134]Darren Whalen explained the claimant’s primary role was technical demonstrator and she needed to be fully trained on the machines before fixing or troubleshooting them. He suggested the claimant raised a written grievance. The claimant did not raise a grievance, as recorded below, until her resignation, despite raising informal complaints to Suzanne Kellett, Rosalind Stone and Darren Whalen until the claimant was told that if she did not raise a written grievance the respondent would carry out an investigation into her complaints (see below). Para 19 Particulars of claim[135]The claimant had been given a default “good rating” on her PDR form, when the rating as discussed at the PDR meeting with Clare Brown referred to above. The claimant did not include her allegation at paragraph 19 of the Particulars of Claim in her witness statement. .[136]The claimant emailed Darren Whalen on 13 April 2023 at 12.36. She wrote “I’ve just read through MYPlace and I’ve found out in January that I received a default Good PDR result. I have addressed this with Clare, and she’s just sent me a congratulation letter on my new pay scale.” The claimant referred to meeting with Clare Brown on 1 January; “we just chatted over coffee” complaining that “nothing has been documented and we made no clear and concise plan of action for me to develop in my role…in fairness to me I have worked hard to complete the training sheets…spent time to learn about the machines” complaining about “lack of training on offer due to the various restrictions on the schedule (or just because people like to finish work early…).”[137]It is not disputed that the claimant on the 26 February 2023 asked Clare Brown “to do all her training,” which the Tribunal finds surprising given the claimant’s complaints about Clare Brown, her aggressive rudeness and the breakdown in the relationship. It was not mentioned in the meeting on 27 February 2023 with Suzanne Kellett, and nor was it referred to in the claimant’s email to Darren Whalen. In short, the claimant believed she should have been awarded a better mark because she had been described as “brilliant” and learnt quickly.[138]There was not satisfactory evidence before the Tribunal that the claimant had been awarded a default good because of lack of training. There is no evidence that the claimant’s score of “good” had anything to do with health and safety or lack of training. It is a matter of fact that the claimant did not appeal the “good” score. 47 of 91 Protected disclosure 3.3.3: On 13 April 2023, the Claimant highlighting the “near miss” incident had not been documented and that it should be formally recorded.[139]The claimant emailed Clare Brown on the 13 April 223 asking for a link “where I report incidents and near misses. I understand the issue I reported to you in February has still not been reported and I would like it formally recorded.” The claimant had not completed the near miss form, she knew the obligation was on her, the request that it should be formally recorded by Clare Brown was outside the respondent’s procedure and the claimant did not have had public interest in her mind and so found the Tribunal. The claimant’s intention was to cause trouble for Clare Brown, who she did not like, trust or get on with and the feeling was mutual. It is a matter of fact that the claimant had not recorded the near miss by the time she resigned, and in crossexamined asked Darren Whalen if the near miss had been recorded as of the final hearing in the knowledge that she had not recorded it at any stage during her employment and the responsibility was on her and not others, particularly when they did not accept it was a near miss. The Tribunal found the claimant was intentionally confusing the situation to further her claim. Para 20 of the Particulars of claim Victimisation 12.2.5 - The suggestion by Neil Holden that the Claimant should “put up and shut up with it or leave” on 23 April 2023.[140]The claimant pleads that Neil Holden told her to put up with the lack of training and made the comment referred to above. Neil Holden denies making the comment "put up and shut up with it or leave." The claimant did not challenge Neil Holden’s written evidence that he was friends with an ex-colleague called Saleem and discussed him celebrating Ramadan with the claimant, as both were Muslims and he still kept in touch with him. Neil Holden denied he had discussed Saleem in the context of him moving or raising complaints about Clare Brown. The claimant did not dispute Neil Holden wished her a “Happy Eid” in their conversation.[141]The claimant’s oral evidence was that she did not understand the phrase "put up and shut up with it or leave" and had to get an explanation of meaning from her husband. .[142]In oral evidence on cross examination the claimant was taken to her handwritten note which recorded against the date 24 April 2023 the following; “Neil was kind when he spoke with me, he could see things were bad…told me that the only way to survive was to put up with it or just leave like the others,” [the Tribunal’s emphasis] which was a reference to Saleem and Nicola Stewart. The claimant was unable to explain the two versions of events and the differences in the terminology allegedly used by Neil Holden. The claimant confirmed Neil Holden was “kind” and she believed looking out for her by telling her to “get out.” The claimant accepted Neil Holden had spoken about Eid. 48 of 91[143]In the claimant’s email to Rosalind Stone dated 25 April 2023 the claimant complained Neil Holden had told her to “just put up with it or leave” and in her handwritten note “either put up with it or leave like the others.” In another document sent to Suzanne Kellett on 5 June 2023, two days before the claimant resigned, she wrote “When I said I’m not going without a fight follows Roz saying to me that, as others have, if you don’t like something you just put up and shut up or leave…” There was no reference to Neil Holden using this phrase, or to the comment being in response to the claimant’s complaint about lack of training.[144]After her resignation the claimant posted on social media in the public domain a comment that “after almost year-long battle my boss managed to bully enough for me to walk out. GM says well, shut up and put up – or you know the other option. Well done.” The reference to “GM” was to the general manager, Rosalind Stone, not Neil Holden, another technical demonstrator.[145]The Tribunal finds the claimant’s evidence contradictory; she changes the words allegedly said to her, she admitted on cross-examination that Neil Holden was being kind to her when he used the phrase, which made no sense given the claimant was relying on it as a fundamental breach of contract and an act of victimisation. The claimant latter attribute those words to the general manager Rosalind Stone. Taking into account the claimant’s less than credible evidence in this case, the Tribunal concluded the words attributed to Neil Holden were not used, and the claimant has mistakenly recollected the evidence against him. Para: 23 of the Particulars of Claim[146]The claimant’s evidence concerning what transpired on the 23 April 2023 is confusing as she has conflated a number of allegations that do not relate to para 23 of her particulars of Claim. In the claimant’s witness statement, she refers to the 26 April and not the 23 April 2023 “being pestered by Darren to fill in a grievance form.” In short, the claimant’s complaint is being asked to complete a grievance by Darren Whalen about her complaints concerning Clare Brown.[147]The Tribunal found Darren Whalen discussed the claimant’s complaints about Clare Brown on the 19 April 2023, suggested she submitted a written grievance if her concerns had not been resolved informally, “she should use our formal process” and he shared a hard copy of the grievance procedure of 19 April 2023.[148]The claimant emailed Clare Brown on the 26 April 2023 stating “at the end of the working day, Darren came to see me to tell me has not received my complaint. He says he wants to see my submission before the weekend.” The claimant made no mention of Daren Whalen being angry or furious, and the claimant did not crossexamine Darren Whelan on whether he was angry or “furious” as she alleged, changing her description of her complaint. The claimant’s cross examination centred around her evidence that she had not receive the respondent’s grievance procedure. The Tribunal concluded, preferring Darren Whalen’s evidence, that he was trying to 49 of 91 assist the claimant to raise a grievance, and he was not “really cross,” or “angry, furious and really cross” as alleged by the claimant.[149]The Tribunal concluded Darren Whalen was attempting to assist the claimant to raise her grievance about alleged bullying against Clare Brown. It is marked the claimant emailed Clare Brown and not Darren Whalen about raising a grievance against Clare Brown, despite the claimant being in regular communication with Darren Whalen. It is notable the claimant never submitted the grievance until her resignation one month later, despite all the complaints and discussions she had concerning her criticism of Clare Brown’s management, the lack of ability of various members of management and higher level managers urging the claimant to file her written grievance in order that it could be investigated.[150]Taking into account the strands of credible evidence, the Tribunal found on 23 April 2023, Darren Whalen came to see the Claimant at the end of the day to ask if she was pursuing a formal complaint against Clare Brown and if so to have it submitted to him by Saturday. The Claimant’s perception that he seemed really cross had no basis. The claimant’s evidence was not credible and did not fit within a logical factual matrix including Darren Whalen’s attempts to assist the claimant to raise a grievance in order that her complaints could be dealt with. PROTECTED DISCLOSURES - PID 3.3.4 3.3.4 Between 25 and 27 April 2023, the Claimant raised concerns to Clare Brown that the team members training her were not operating safe practices.[151]On the 25 April 2023 the claimant emailed Clare Brown aggressively complaining about risk assessment feedback. The claimant, who was still in the early months of her training, wrote demanding information, “Regarding the Risk Assessment feedback I asked you for a deadline date “plenty of time” isn’t an acceptable deadline date. You can email a copy of the current (2017) RA, then I can respond…I have concerns regarding the machinery which I have raised with you a few times previously. Your sudden rush to file a RA demonstrates a lack of due diligence concerning the welfare of the team. I asked you when I stated in July 2022 if there are RA completed in the machines, particularly because team members training me were not demonstrating safe practiced…I’ve raised my concerns with Darren. I see you feel compelled to push updated copies through, having told everyone to sign outdated ones less than a month ago. Poor practices over a long period of time does not warrant acceptable practices…You should be encouraged to take on responsibility…” Understandably, Clare Brown was unhappy with the content and tone of such an email sent to her by an inexperienced member of staff whom she line managed. 50 of 91[152]On the same day the claimant emailed Rosalind Stone “I’m having a few problems with Clare…I’ve chatted with Darren, and I’ve spoken with People Services,, I feel because you helped me a few months ago with another issue along the same lines…I have been told by…Neil to ‘just either put up with it or leave…I love working at the mill and with things escalating I really am at the point of being bullied into leaving…I appreciate your understanding…”[153]Two days later Clare Brown shared the risk assessments with the claimant and asked her to clarify her statement that “team members training me were not demonstrating safe practices.” The claimant never responded to this. The claimant was asked to provide information and set out the safety breaches, and the claimant failed to do so, underlining the fact that she did not have any public interest in mind and was not prepared to give any detail. Has there been health and safety issues the claimant would have said so, and this was yet another example of the claimant’s habit of fabricating allegations that could have had serious consequences on her colleagues who were training her and allegedly breaching health and safety when doing so.[154]In cross-examination the claimant conceded she had been provided with the risk assessment, maintaining Clare Brown mimicked her “many times” in contrast to the Para.24 of the Particulars of Claim where the reference is to one alleged incident. The Tribunal concluded on the satisfactory evidence e before it that the claimant’s evidence was not credible, it was highly unlikely Clare Brown would laugh at the claimant and mimic her as alleged on the 27 April 2023 given their respective complaints about the other, and Clare Brown’s concerns that the claimant would make up allegations about her behaviour given the current state of play where both were complaining about the other. The Tribunal has also taken into account the claimant’s aggressive and disrespectful tone towards her manager, and the claimant’s less than credible evidence in respect of this claim generally. Clare Brown disputed that she laughed and mimicked the claimant, and the claimant has been unable to show when in the 27 April 2023 she detailed how Clare Brown had laughed and mimicked her. The Tribunal has looked at the relevant email and the chain of emails concluding there is no such reference and the reason for this is that it did not happen.[155]The claimant has raised the issue of her not signing risk assessments. The Tribunal fact the claimant did not sign the risk assessment was immaterial because she could have taken steps to resolve any errors and omissions if there were any. The fact that the claimant did not respond to Clare Brown when she was asking for details about possible health and safety breaches points to there being no health and safety issue. Had there been errors and omission the claimant would have referenced them in an email, and she did not. May 2023 Meeting Rosalind Stone and Claimant 3 May 2023 26 Racial 51 of 91 155.1.1 Protected Act 3 – Informing Rosalind Stone of concerns relating to Clare Brown’s management on 3 May 2023[156]As referenced above, having spoken to HR the claimant emailed Rosalind Stone on the 25 April 2023 at 13.01 “I’m having a few problems with Clare…I’ve been told by one of the team members Neil to ‘just put up with it or leave…” There is no reference to Wayne Carter or the allegation concerning recruiting an Afro-Caribbean man.[157]A meeting took place on the 3 May 2023 at the claimant’s request and Rosalind Stone came in on her day off specifically for that purpose. The claimant’s evidence was that she recorded the meeting and then deleted the recording. In crossexamination the claimant, who had denied initially that she had recorded the 3 May 2023 meeting and had written her statement from memory, later in in crossexamination admitted that she had recorded the meeting, then stated she remembered quite a lot and had a very good memory. The Tribunal is concerned with the claimant’s contradictory evidence concerning her covert recordings and deletion of the 3 May meeting, which she relies on as an act of racism by Rosalind Stone who was allegedly aggressive, the Tribunal concluding the claimant was unreliable in her evidence and the allegations she made had no basis.[158]The claimant disputed Rosalind Stone’s witness statement, maintaining the email sent on 3 May 2023 did not reflect the tone of the meeting, and Rosalind Stone’s conduct in the meeting was “confrontational.” The covert recording would have shown this, and yet it was deleted by the claimant. The Tribunal has inferred the reason for the deletion is that the recording did not assist the claimant in establishing her case of unlawful discrimination, given she had retained the covert recording of her conversation with Darren Whelan less than a month beforehand on 8 March 2023.[159]The claimant confirmed on cross-examination that it was appropriate for Rosalind Stone pressing on with the investigation and “yes, she wanted to resolve” it. In the claimant’s correspondence there is no reference to Rosalind Stone being angry at the outset, as now alleged by her.[160]There are no contemporaneous records of meeting in the bundle. The Tribunal was not taken to the notes by either party and the closest record in time are the investigation notes taken when Suzanne Kellett was asking questions about the claimant’s grievance and Rosalind Stone’s response. The Tribunal preferred Rosalind Stone’s oral and witness evidence to the effect that the claimant raised a lot of issues, jumbling them up, making general criticisms about Clare Brown’s management, the pace of her training, the team not operating sae practices, not accepting the performance review score and Clare Brown referring to a group of visitors as “French.” Rosalind Stone did say that Clare Brown was a long standing member of staff and she had not been made aware of any issues with her 52 of 91 management in the past. Rosalind Stone found it difficult to understand the claimant’s complaints and told her it was up to her to raise a formal grievance.[161]Drawing together all of the satisfactory evidence, the Tribunal found on the balance of probabilities, the meeting between the claimant and Rosalind Stone took place on the 3 May 2023 at which the claimant raised a number of allegations. By this stage the claimant was covertly recording meetings, and the claimant has never given wholly satisfactory evidence concerning the meetings she recorded and those she deleted. The claimant’s evidence was that she recorded meetings to discuss them with her husband, an explanation the Tribunal did not find convincing. As of September 2022, the claimant was aware of the limitation period in discrimination cases, and she was preparing her case and keeping a diary, which she did not disclose in full to the Tribunal. The claimant retained one recording which was disclosed and transcribed, the 8 March 2023 transcript referred to above. The Tribunal has inferred that all of the other meetings covertly recorded by the claimant did not assist her case, and accordingly they were deleted and not disclosed. The claimant also covertly recorded telephone calls after her resignation which the Tribunal is not concerned about. However, covertly recording calls and meetings does give rise to credibility issues, particularly when the claimant is aware that she is being recorded and the other person is not, hence tailoring what she says to any future case in an attempt to support litigation.[162]There is no note of the content of the meeting. In the fact finding, having taken into account the notes taken at the grievance investigation, the only near contemporary documents available do not refer to the claimant making allegations of discrimination in connection with Clare Brown, and the Tribunal prefers the evidence of Rosalind Stone that the claimant made no such allegations at the meeting om the 3 May 2023. The evidence before the Tribunal was to the effect the claimant complained about Clare Brown’s management style, and how Clare had not allowed her to step away from the training programme and learn the machines faster. This version of events is supported by the 8 March 2023 transcript which reflects the claimant’s preoccupation with her training and advancement as opposed to any discrimination. The claimant was convinced because she had an engineering degree she should advance quickly and be trained by Clare Brown to achieve this aim, bearing in mind that she was months into a training which could take between 18 to 24 months on the historic industrial machines. It is notable that nowhere in the contemporaneous documents does the claimant raise any allegations that she had made a protected act and suffered detriment as a result, which is further evidence that she had not, taking into account the claimant was prepared to raise numerous complaints throughout her employment, and aggressively criticise the respondent and Clare Brown in a covertly recorded telephone call after her employment had ended.[163]The Tribunal found there was no satisfactory evidence to support the claimant’s allegation at para. 26 of the Particulars of Claim. The claimant was told she needed to set out her allegations against Clare Brown in a written grievance and if she did not, an internal investigation would take place. The Tribunal did not accept as credible the claimant’s allegation that Rosalind Fallon was exhibiting racism against her, and it found, preferring Rosalind Fallon’s more credible evidence, that she was not “very angry at the outset of the meeting, her legs and arms were crossed, and she 53 of 91 had pursed lips.” The Tribunal found Rosalind Fallon was trying to get the claimant’s issues with various members of her team and line manager resolved and had taken the view that the only way forward was for an investigation to take place and the claimant given an opportunity to clarify her grievance in writing, including allegations going back months.[164]The next reference to the claimant being required to file a written grievance was an email sent on the 4 May 2023 from the claimant to Rosalind Stone “You told me Wayne denied ever using the term “Afro-Caribbean…you…said twice in that meeting that I should file a formal complaint against him.”[165]The Tribunal concluded on the balance of probabilities that the Afro-Caribbean complaint was not made until months after the alleged incident, namely, to HR on 13 April 2023. The claimant did not raise any complaint with Clare Brown or Rosalind Stone, and the fact that she said nothing from August 2022 to April 2023, a period of some 8 months, despite raising other complaints, points to this comment not having been made, and the Tribunal prefers the evidence of Wayne Carter that it was not something he would have said. In the context of Wayne Carter’s brief regarding diversity, the Tribunal found it would not make sense for him to ask the claimant to help him recruit an Afro Caribbean male on the basis of her being of Indian Pakistani origin and on the claimant’s account she had told him she did not want to join the diversity group and complained about him asking her.[166]After the meeting Rosalind Stone sent the claimant an email on 3 May 2023 at 20.22 “I’m just sending a note after our meeting today. As discussed, I’m keen to ensure we follow up on the concerns you’ve raised, and these are properly investigated…” The Tribunal found Rosalind Stone asked the claimant to provide a written grievance by 8 May 2023 if she intended to raise a grievance, and the claimant chose not. The claimant’s allegations about Clare Brown has been an issue for some time, and Rosalind Stone took the view an investigation needed to take place into the claimant’s allegations. Rosalind Stone made it clear to the claimant that if she does not raise a grievance, the respondent would investigate her concerns.[167]As matter transpired the claimant did not raise a written grievance and Suzanne Kellert started investigating in or around 15 May 2023.[168]In cross-examination the claimant alleged she had been pressurised into an investigation because she had been asked to provide a written grievance by the 8 May 2023. The Tribunal found had the respondent not given her the opportunity to raise a grievance, and if she failed to do so, not commenced an investigation into the claimant’s complaints, they would have been criticised because she was raising issues with Clare Brown’s management via Rosalind Stone, Darren Whelan and Suzanne Kellet who all took the claimant seriously, as did HR. The claimant’s allegations against this background make no sense as she was interviewed from the outset by Suzanne Kellet about her complaints, and had the opportunity to set out all of allegations, which she did as recorded by Suzanne Kellet. The allegation undermines the claimant’s lack credibility because she is prepared to criticise managers for proactively attempting to resolve the issues she raised in a timely manner, when the claimant was dragging her feet about filing a formal complaint. In 54 of 91 cross-examination the claimant confirmed she only started writing her grievance on the 10 May which she submitted almost a month later the 7 June 2023. The respondent had a responsibility to move the matter forward.[169]In the issue of whether Rosalind Stone was angry at the outset, the Tribunal preferred Rosalind Stones evidence that she was not. In cross-examination the claimant did not put to Rosalind Stone that she was angry, the claimant described her as “upset with lips pursed” and no reference to her being angry. The Wayne Carter allegation was raised, but as far as Rosalind Stone was concerned, she understood the claimant confirmed it had been dealt well. This accords with the claimant’s email in which she stated, “I feel you helped me a few months ago.”[170]After the meeting the claimant emailed Rosalind Stone on 4 May 2023 headline “Grievance Form” stating “I came to you for advice yesterday so I can fill in the form, ensuring that any allegations that I made are supported correctly…yesterday you raised the incident with Wayne (which happened as soon as I joined the team). You said “we’ve been here before. Involving Wayne. You wanted to use this as a case point against me, that my interpretation may not always be the same as others…You told me Wayne denied ever using the term Afro-Caribbean…you said twice…that I could file a formal complaint a him…he did not take no for an answer, persistently visiting me on the Mill floor. I never felt he was being malicious…Clare…had the choice to support me and to keep discussions between us three, but she chose to tell other team members,…so here I am again…” [the Tribunal’s emphasis].[171]Rosalind Stone responded on 5 May “as we have now spoken and you’ve made me fully aware of your concerns, I feel it’s important to take action to resolve this as soon as possible. I have therefore asked Suzanne to investigate the situation fully now…”[172]The claimant alleges that in or around 7 May 2023, during Ramadan, Darren Whalen had arranged for the claimant to use a quiet room to pray in private in her lunch breaks, and Rex Ashton started talking about Indian people washing themselves with their hands rather than use toilet paper and then eat. He said it was foul. The claimant felt that this comment was targeted at her due to her race, and relies on this allegation as a breach of contract and racial harassment under section 26 of the EQA.[173]It is key that this allegation is one of the few occasions when other people were around when the alleged act of race discrimination took place. The claimant named two witnesses, Kirsten and Jane, and yet they were not called to give evidence in this hearing by the claimant. The claimant’s evidence is that people were “chatting about their shift” and the claimant’s fast, when Rex Ashton out of the blue made the alleged comment and having heard the comment, two people walked out as a result of it. 55 of 91[174]The claimant’s dates for this allegation are contradictory. In her witness statement she states the comment was made during Ramadan when the claimant was fasting and finished on 23 April 2023. The clamant described how the incident took place “toward the end of the month” which must be on 23 April 2023 at the latest. In oral evidence the claimant stated it was towards the 11 and 21 April 2023. The claimant accepted her dates were inconsistent and in cross-examination confirmed it was 19 April 2023, and blamed the incorrect Particulars of Claim on her solicitors and to her being “very unwell” at the time. It is undisputed the claimant did not raise this allegation during her employment.[175]The claimant was unable to explain why she was able to raise other allegations of race discrimination. and yet be silent on this allegation even when she finally came to submit her written grievance. The claimant gave no satisfactory reason why she did not raise it during her employment, including at meetings with Rosalind Stone. The claimant elaborated her closing submissions, varying the allegation to Rex Ashton’s face looking “eerie” when he made the comment, which was new evidence.[176]Rex Ashton denies making the statement maintaining it was a fabrication. During cross-examination the claimant referred to the comment being “deeply offensive” to her, and when it was said she felt embarrassed and ran away. The Tribunal prefers Rex Ashton’s evidence that these words were not used by him, finding the claimant had fabricated this allegation against him. The Tribunal has dealt with this under the heading “Evidence” above.[177]In early May 2023 emails were exchanged concerning the claimant filling her grievance form before a fact-finding meeting arranged for 15 May 2023 in order that Suzanne Kellett could prepare for it. The claimant raised no complaints and offered to bring the form with her to the meeting. The claimant did not do so. The meeting went ahead on the 15 May 2023 and the claimant was provide with notes of the meeting and those taken on the 27 February 2023 meeting. Grievance fact finding meeting 15 May 2023 claimant and Suzanne Kellett[178]On 15 May 2023, the claimant met with Suzanne Kellett who was investigating her grievance.[179]The claimant alleged the respondent was in breach of contract because she was made to pay for fabric and others were not. The claimant’s evidence is that she told Suzanne Keller she was singled out by the respondent by being asked to pay for fabric. The claimant maintained on 30 November 2022 she was required to pay for material, however in April 2023 Neil Holden had let her take whatever she wanted free of charge. 56 of 91[180]The claimant provided no details of any employee who took material that were described as seconds without payment, and produced no evidence that other people had been given material from the shop when it had been sold to her. Nicola Steward in her evidence describes how the respondent produced “fabric which was sold via the QB” [the Tribunal’s emphasis] and made no reference to employees taking fabric without payment.[181]Clare Brown on cross-examination confirmed seconds can be taken free of charge, but from the shelves cost price. The claimant referred to others taking fabric, without naming the individuals and this was denied by Clare Brown. Clare Brown explained that employees can take seconds for free, but employees need to pay for new fabric that is not seconds, referring to another employee who paid for new fabric.[182]The claimant did not put this issue to Neil Holden. Nicola Stewart did not deal with the fabric allegations in her witness evidence.[183]The Tribunal conclude there was no satisfactory evidence that the claimant had been “singled out” as alleged, by being charged for material when other employees had not, preferring Clare Brown’s evidence that material could be purchased from the shop at cost price, and seconds were free. It is notable the claimant wrote to Jennifer Brooke on 8 June 2023 “meters and meters of fabric has been wasted. I offered to buy it all so that NT doesn’t lose too much money…” evidencing that the claimant was aware that fabric was paid for as set out in the Staff and Volunteer Book issued by the respondent at the outset of the claimant’s employment.[184]The claimant’s referred to having a panic attack in paragraph 29 of the Particulars of Claim. It is undisputed that the grievance investigation meeting was adjourned to another day with agreement. June 2023[185]In an email sent on 5 June 2023 the claimant criticised pronouns on people’s badges and Clare Brown expecting the team to train each other. The claimant referred to not going without a fight “…I don’t want to leave, but I don’t want to put up with put team leader as she is. So I have no choice but to file a grievance. Just because in 20 years no one else has filed a formal complaint about Clare doesn’t mean Clare is mindful or respectful of others…” Suzanne Kellett responded by email that she would include the claimant’s clarifications in the notes and arrange further meetings, the “notes will then be passed to Roz Stone who will define the outcome.”[186]Suzanne Kellett as part of her grievance investigation spoke with Clare Brown and other members of the team. The Tribunal has viewed the emails exchanged between the parties concerning the claimant’s grievance, including a number of documents to which it was not taken during evidence, in order to understand the claimant’s claims a bit better. . 57 of 91 DETRIMENT (SECTION 47B EMPLOYMENT RIGHTS ACT 1996) ALLEGATION 4.1.1. 4.1.1 Clare Brown ignored and avoided the Claimant for the final two months of her employment, delegating management tasks to Rex Para:25 of the Particulars of Claim[187]The claimant relies on the respondent ignoring her request for training and Clare Brown ignoring her as a breach of the implied term of trust and confidence. There was no evidence to the effect that Clare Brown ignored the claimant in the last two months of her employment, and the Tribunal repeats its conclusions above. Had there been the issues as alleged by the claimant she would have informed a higher level manager and not another technical demonstrator taking into account the meetings and discussions recorded above when the claimant complained about not being trained quickly enough and wanting to be trained exclusively by Clare Brown, who she knew did not have the time to do so.[188]The claimant does not provide any dates, and the Tribunal has closely looked at any documents supporting the claimant’s allegation set out in detriment 4.1.1 which refers to Clare Brown avoiding the claimant in the last two months to her employment, bearing in mind their relationship had broken down and Clare Brown was concerned with being left alone with the claimant in case a serious complaint was made about her behaviour which had no basis.[189]The claimant emailed Suzanne Kellett on the 5 June 2023 “Can I just take the opportunity to thank you for your support and understanding. I mean also to acknowledge that although Clare has been in the same shifts as me, we have had no interaction in the past 6 plus weeks. She spotted me in the courtyard walking in the opposite direction towards each other but she veered off path to walk behind visitors…Is she avoiding me on advice or because she wants to. It is a bit peculiar. I’m left with no management support…”[190]In an email sent on 6 June 2023 by Clare Brown to Susan Kellett, clarification why she had not seen much of the claimant “recently” from 26 April to 5 May, including days off, “swapping” lunches, busy with meetings and covering the claimant for lunch and “helped her with running to Derby doubler” on 31 May 2023. Clare Brown wrote “I have been advised not to be with Abi on my own, but not to avoid her. I have been to most of the briefings apart from days when I have been to suppliers or at meetings. I am always in my office from 8am, my team know they can come and speak to me at any time. A lot of them will come by and just say hello, Aby has never done that.”[191]Clare Brown provided Suzanne Kellett with her schedule of work “to clarify why I’ve not seen much of Abi recently” setting out in a list dated from 26 April information relating to her schedule including holidays/days off totalling 12, swop with the claimant to cover lunches, meetings, and the claimant’s sickness absence. She wrote, “I have been advised not to be with Abi on my own, but not to void her. I have been to most of the briefings…I’m always in my office from 8am” [the Tribunal’s emphasis]. Clare Brown’s evidence was that she last saw the claimant at 58 of 91 the team meeting on 31 May 2023 when she went to give her lunch cover and helped her with a machine. The claimant worked part-time.[192]Suzanne Kellett responded to the claimant the next day “Clare has not been advised to avoid you and if you require assistance please do contact her via radio, email or phone. On the days she is working she will be at team briefings. If you need anything on the days Clare is not available, please contact Darren or the duty manager and they will be able to support you.” It is notable that when the claimant wrote she had been left with no management support this statement was not entirely correct as recorded in the factual matrix above. A number of managers supported the claimant throughout the period of her employment, and in the meeting of 8 March 2023 Darren Whalen had made it clear to the claimant (as reflected in the transcript) when she complained Clare Brown was “never on the shop floor” the extent on Clare Brown’s duties and the lack of time she had. The Tribunal found claimant’s written evidence on this issue contradictory. She asserts that Clare Brown was present in the morning meetings” and “never in the mill” and made no reference to Clare Brown helping her on the 31 May 2023. The Tribunal found the claimant had a selective memory, and exaggerated her evidence seeing slights when there were none. The claimant was a part time employee, it follows that she would have limited access to Clare Brown and this had been the case even before the claimant’s last two months of employment, and so the Tribunal found.[193]In cross-examination the claimant accepted she had made inappropriate comments to Clare Brown. She had access to other managers such as Darren Whalen, Rosalind Stone, Ally Tsilika, Suzanne Kellett and HR for advice. During this period the claimant was alleging Clare Brown was bullying her to these managers. The Tribunal concluded that Clare Brown was not avoiding the claimant, however their relationship had broken down and this was further complicated by the fact that the claimant was complaining about her but not raising a formal grievance. Clare Brown was wary of dealing with the claimant unless other people were present. The breakdown in the relationship was a real issue, and despite being urged to do so, the claimant failed to raise the written grievance clarifying the bullying allegations which appeared confused when she tried to describe them orally. It is unfortunate this state of affairs was allowed to drag on, and the Tribunal found an option for the respondent may have been to arrange for another manager to take over the management of the claimant bearing in mind Clare Brown wanted to raise a grievance against her and was told by HR that she was unable to do so.[194]The evidence before the Tribunal was that the claimant and Clare Brown were communicating, for example, via email, and the claimant was not being ignored. Clare Brown met with the claimant on 31 May and helped her to run a machine, evidence which was never challenged by the claimant. Clare Brown had assisted the claimant and covered her lunch. There was no satisfactory evidence that Clare Brown ever refused to see the claimant. the Tribunal preferred Clare Brown’s evidence that she had not. In the claimant’s written witness statement there was no mention of the 31 May 2023 when Clare Brown had worked with the claimant, and the claimant did not cross-examine Clare Brown on this. In her witness statement the claimant refers to two occasions when Clare Brown avoided her since “our altercation on 12 April 2022” Both occasions were not dated and appeared to be Clare Brown not responding to 59 of 91 the claimant’s greeting “hello” whilst passing her on stairs, and the other was walking up a hill, swerving to avoid the claimant, missing a couple and tripping over a small dog.[195]There is no contemporaneous evidence within the bundle that the claimant tried to meet Clare Brown and was ignored or avoided. The Tribunal found this did not happen as alleged by the claimant. 5 DETRIMENT (SECTION 47B EMPLOYMENT RIGHTS ACT 1996 4.1.3 The Claimant was given a verbal warning from senior management for allegedly running machines without supervision on 7 June 2023 Formal grievance submitted and meeting with Jennifer Brooke on 7 June 2023.[196]The claimant submitted her formal grievance on the 7 June 2023.[197]The Tribunal notes that the allegation concerning being issued with a verbal warning by Jennifer Brook on the 7 June 2023 relates to the detriment claim only. The claimant has not amended her constructive unfair dismissal allegation to allege the verbal warning was a breach of contract, and there is nothing to suggest in the original Particulars of Claim the claimant had been issued with a verbal warning. Paragraphs 31 and 32 are silent on this point, and there is no suggestion of any warning, which further undermines the claimant’s evidence that she was issued with a verbal warning.[198]On the claimant’s account Jennifer Brook told the claimant to discuss her complaints with Suzanne Kellett, which the claimant did when she sent Suzanne Kellett an email at 18.16 setting out what had been discussed with Jennifer Brook regarding Rex Ashton reporting issues about the way the claimant had worked on the machine. The email confirmed the claimant had apologised for forgetting to “tap a button” and denied “never using the dust extractor.” The claimant wrote “He also claimed I ran the weaving shed looms without being signed off. I agreed with Jen that I was not ready and initially felt uncomfortable since I’m not signed off…my concerns is Rex acting as a stool pigeon for Clare…I feel I have been set up…with 20 years of experience I felt comfortable with him…I do appreciate I should not have run the machines without the training documents being signed…” [the Tribunal’s emphasis]. The claimant made a number of criticisms about Clare Brown’s management and other colleagues including bringing up matters that had already been dealt with, such as reporting the near miss described as follows: “I report incidents, nothing is ever written up, It’s pished tossed away as unimportant.” The claimant did not mention the fact that she had been shown how to record near misses, it was her individual obligation to do so, and she had chosen not to. There was no reference in the claimant’s email, despite the criticisms levied at other members of staff, to Jennifer Brooks issuing her with a formal oral warning. 60 of 91[199]Jennifer Brooke made a contemporaneous written record of out her meeting with the claimant and how it came about. The notes referred to the claimant explaining she had done a lot of training and had made a “one-time mistake.” Jennifer Brooke recorded “I said I appreciated it was a one time mistake and reiterated that she absolutely must use the extractor…I asked Abi why she chose to run the machines when she knew she wasn’t signed off. She said she could have chosen to not run the machines and just speak to visitors. I said she should have raised her concerns with the senior led first thing in the morning. Abi said that she didn’t know how to speak to the senior lead….she spoke about a gate/fence that was a tripping hazard…I explained that she should complete an incident report on the system and she explained that she did not know how to and was unaware of the process…” It is notable that the claimant did not inform Jennifer Brook that the requirement of incident reporting had been raised and explained to her in connection with the near miss allegation raised earlier, and her comment that she was unaware of the process disingenuous, as was much of her evidence before this Tribunal.[200]After the meeting with Jennifer Brook the claimant collected her personal items, and went home early following which she submitted her resignation.[201]The claimant emailed Suzanne Kellett describing her meeting with Jennifer Brook “to discuss the reports Rex has been feeding back to Clare…I confirmed that I forgot to tap the button and I apologised…he also claimed I ran the weaving sheds without being signed off, I greed with Jen I was not ready…my concern is Rex is acting as a stool pigeon for Clare because she wants to avoid me…I feel I have been set up…I do appreciate that I should not have run machines without the training documents being signed…Clare signed me in the weaving shed on Monday. If it was an error she should have told me. I will not be held accountable…Running machines without full training is very common in the Mill.” The claimant complained about Clare Brown’s rota planning, employees working on the floor without full training, “I… I’m told by Clare I ask too many questions I report incidents, nothing is written up, its pished toshed away as unimportant.” and referred to herself as “stupid Abida…If this is how the National Trust behaves spies and lies to edge a person out then good, you succeeded. So it is with great regret I cannot see myself returning to this hateful place. Clare has indeed won another match. She has managed to drive another member of the diverse community out if her mill…I will not be coming in.”[202]The claimant, whilst raising a number of complaints about the respondent, the team and Clare Brown, did not refer to any of the events leading to the allegations in this litigation with the exception of Clare Brown telling the claimant she asked too many question and failing to write up an incident, a reference to the alleged the “near miss” referenced above, which the claimant should have recorded herself and failed to do so if she deemed it a near miss. It was the claimant’s responsibility and not that of other managers who did not consider it a “near miss.”[203]The claimant forwarded the email to Clare Smith HR at 8.26 on the 7 June 2023 stating, “matters have escalated ridiculously, and Clare Brown has managed to make my work life so awful for me, I have decided to resign.” The claimant refers to Clare 61 of 91 Brown only, and not any other allegations, for example, the serious complaint relating to Rex Ashton’s discriminatory comment about toilet habits, and does not even suggest that she was issued with a verbal warning or warning of any sort.[204]The claimant attached a copy of her written grievance. The grievance runs from pages 266 to 275 in the bundle, and makes no mention of the serious allegations of racism by Rex Ashton about toilet habits, Wayne Carter “White boys” comment, the comment by a member of the public about Indians buying all the water in Aldi dismissed by Clare Brown as banter, Wayne Carter referring to a Afro-Caribbean man and asking the claimant to help recruit, and being required to pay for fabric before the Tribunal. The fact the claimant is silent about these allegations further undermines her credibility. The fact the claimant makes no mention in any correspondence after the meeting with Jennifer Brook, and is silent on the issue of been given a verbal warning until a case management hearing, also raises an issue of credibility. It is clear from the documents generated by the claimant immediately before and after her resignation that she did and could complain about individuals, including Clare Brown. In oral evidence the claimant explained that she was too upset over the treatment including the Indian toilet habit comment, to raise it and discuss it. This evidence was also not credible, given the coherence of the claimant’s communications which followed, and the clear indication she gave to the respondent that she was seeking legal advice in September 2022 and when she resigned.[205]On the 9 June 2023 the claimant rang Clare Smith of People Services (HR), and recorded the conversation covertly. The claimant produced a transcript of a recording which has been agreed. The claimant referred to the following “I have barefaced told my line manager she is absolutely racist and no one has come to support me or ask me why I think she is…everyone is covering the line manager…you edge out anyone of diversity…she’s been using this particular team member to spy on me…I’ve forgotten to put on a dust extractor and it’s all entrapment…entrap me to kick me out I am going to kick hell for leather now. I’m gonna screw the pants and I am gonna go to the Guardian and the Daily Mail.” In contrast to the claimant’s evidence that she was too unwell to record her allegations correctly in the Particulars of Claim, it is clear that she was intent on taking legal advice as threatened and litigating. There was no reference in the discussion with People Services that the claimant had been issued with a warning before she resigned.[206]The effective date of termination was 7 June 2023. The claimant, who was aware of the statutory time limits entered into ACAS early conciliation on the 3 July 2023, the certificate is dated 14 August 2023 and the claim form presented on the 14 August 2023. Law[207]The Tribunal has been referred to case law by both partis, references to some of it has been recorded below. The Tribunal does not intend to deal with all the cases it was referred to, including the first instances decisions noted by the claimant which is not binding the Tribunal. 62 of 91 Reasonable belief[208]Under 43B(1) a “ qualifying disclosure ” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following— (a)that a criminal offence has been committed, is being committed or is likely to be committed (b)that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c)that a miscarriage of justice has occurred, is occurring or is likely to occur, (d)that the health or safety of any individual has been, is being or is likely to be endangered, (e)that the environment has been, is being or is likely to be damaged, or (f)that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.[209]The ET must consider subjectively whether the worker actually believed the information tended to show a relevant failure and whether, objectively (in the circumstances of the worker making a disclosure), such a belief was reasonable: see Babula v Waltham Forest College [2007] ICR 1026 per Wall LJ at [81].[210]In relation to the “public interest” provision, the ET should ask whether(a) the worker actually believed the disclosure was in the public interest (the subjective element) and(b) whether it was reasonable for the worker to have this belief (the objective element) (Underhill LJ at [27] of Chesterton Global Limited v Nurmohamed [2018] ICR 731, following Babula). The public interest[211]In Chesterton Underhill LJ said at [37]: “where the disclosure relates to a breach of the worker’s own contract of employment (or some other matter under section 43B(1) where the interest in question is personal in character), there may nevertheless be features of the case that make it reasonable to regard disclosure as being in the public interest as well as in the personal interest of the worker… The question is one to be answered by the tribunal on a consideration of all the circumstances of the particular case, but Mr Laddie’s fourfold classification of relevant factors which I have reproduced at para 34 above may be a useful tool.[212]The relevant factors at [34] of Chesterton are:(a) the numbers in the group whose interests the disclosure served;(b) the nature of the interests affected and the extent to which they are affected(c) the nature of the wrongdoing disclosed; and(d) the identity of the alleged wrongdoer. 63 of 91 Substance of disclosures[213]A protected disclosure must be (in the worker’s reasonable belief) a “disclosure of information”. The question of whether a specific statement is a disclosure of information which tends to show one of the matters set out at section 43B(1)(a) to (f) of the ERA is a matter of evaluative judgment for the Tribunal ([36] in Kilraine v London Borough of Wandsworth [2018] ICR 1850). Even if the worker subjectively believes that to be the case, there is also an objective element to that test.[214]The statute requires that the statement must have “sufficient factual content and specificity” such as is capable of tending to show a relevant failure within the meaning of section 43B(1)(a) to (f) ([35] of Kilraine).[215]This does not mean that statements phrased as allegations cannot constitute a protected disclosure ([30] of Kilraine). In the earlier case of Cavendish Munro Professional Risk Management Limited v Geduld [2010] ICR 325 the EAT had suggested there was a distinction between “information” (falling within the ambit of a qualifying disclosure) and an “allegation” (falling outside the ambit of a qualifying disclosure) ([20] of Cavendish). In Kilraine the Court of Appeal made it clear that “a disclosure of information” and “an allegation” are not mutually exclusive concepts ([33] to [34] of Kilraine). The focus for the Tribunal is whether a particular statement (whether phrased as an allegation or not) meets the statutory definition ([31] of Kilraine).[216]The context of any statement is highly relevant to determining whether (on the facts) that particular statement contains the “sufficient factual context and specificity”. Sales LJ gave the following example at [41] of Kilraine: If, to adapt the example given in para [24] in the Cavendish Munro case, the worker brings his manager down to a particular ward in a hospital, gestures to sharps left lying around and says 'You are not complying with Health and Safety requirements', the statement would derive force from the context in which it was made and taken in combination with that context would constitute a qualifying disclosure.[217]The practical reality is that if the worker subjectively believes that the information s/he discloses does tend to show one of the relevant failures set out at section 43B(1)(a) to (f) of the ERA) and if the statement or disclosure he makes has a sufficient factual content that it is capable of tending to show that listed matter, it is likely that his belief will be a reasonable belief (see [36] of Kilraine). Recipient of protected disclosure[218]A disclosure is a qualifying disclosure within the meaning of Part IVA of the ERA if it is made to the worker’s employer (section 43C). Section 43B(1)(b) 64 of 91[219]The claimant asserts that her disclosures qualified for protection because she had the reasonable belief that they tended to show: 1.1. (43B(1)(b)) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject; and/or 1.2. (43B(1)(d)) that the health and safety of any individual has been, is being or is likely to be endangered.[220]A disclosure is protected under section 43B(1)(b) if the person making the disclosure reasonably believes the disclosure is in the public interest and that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject. The worker’s identification of that legal obligation need not be detailed or precise, but a worker must believe the conduct is unlawful as opposed to simply immoral (also [46] Eiger Securities LLP v Korshunova [2017] ICR 561).[221]The question whether a worker reasonably believes that a relevant failure tends to show a breach of a legal obligation, will depend in part on the level of precision in the worker’s mind as to the nature and source of the legal obligation. The requisite level of precision in the worker’s mind (as to the nature and source of the legal obligation) will depend on the extent to which the failure is an “obvious” breach of a legal obligation Detriment claims (section 47B of the ERA) Causation[222]Under 47B(1), “A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure”.[223]The question is whether the claimant has been subjected to a detriment “done of the ground that the worker has made a protected disclosure.” The authoritative statement of the effect of this causation test is whether the protected disclosure materially influenced (in the sense of being a more than trivial influence) the employer’s treatment of the worker: [45] of Fecitt v NHS Manchester [2012] ICR 372, CA. This contrasts with the test under section 103A of the ERA, which requires that the protected disclosure be the reason, or principal reason, for dismissing the complainant (see again [45] of Fecitt). In Fecitt Elias LJ giving the main speech, Davis and Mummery LJJ concurring, held that the correct test, in relation to a detriment claim, is whether the protected disclosure materially influenced, in the sense of being more than a trivial influence upon, the employer’s treatment of the whistle-blower, as opposed to the test being the one that would apply in the unfair dismissal context, of whether the protected disclosure was the sole or principal reason for the dismissal. See in particular paragraph 45. Further on, the Court of Appeal considered the question of whether such a claim must succeed if the treatment complained of was found to be “related to” the disclosure, or whether it was possible on appropriate facts for the Tribunal to distinguish, for example, between the fact of the disclosure and the manner in which it was made. The Court of Appeal accepted that in an appropriate case such a 65 of 91 distinction should be drawn, although caution was required. This was the context and sense of its remarks at paragraph 51.[224]There is a “less restrictive” causation test for the purposes of a section 47B claim: see e.g. [62(2)] of Timis v Osipov [2019] ICR 655 (this Court of Appeal judgment is referred to below to as Osipov-CA to distinguish it from the EAT judgment also cited below). Constructive dismissal[225]Dismissal under the ERA includes constructive dismissal (section 95(1)(c) of the ERA). It is trite law that the ET must be satisfied that(a) there was a fundamental breach of contract on the part of the employer(b) the employer’s breach caused the employee to resign in the sense that it is a reason for the resignation, even if not the sole or main reasons, and(c) the employee did not delay too long before resigning thus affirming the contract. Section 95(1)(c) of the Employment Rights Act 1996, as amended (“the ERA”) states that there is a dismissal when an employee terminated his or her contract, with or without notice, in circumstances that he or she is entitled to terminate it without notice by reason of the employer’s conduct.[226]The Tribunal’s starting point was the test laid down by the Court of Appeal in Western Excavating (ECC) Ltd –v- Sharp [1978] ICR 221 whether the employer was guilty of conduct which is a repudiatory/significant breach going to the root of the contract. The issues to be decided upon in this respect were: Was there a fundamental breach on the part of the employer? Did the claimant terminate the contract by resigning? Did the claimant prove that the effective cause of her resignation was the respondent’s fundamental breach of contract? In other words, what was the effective cause of the employee’s resignation? Did the claimant delay and therefore act in such a way that is inconsistent with an intention to treat the contract as an end? The Court of Appeal “made it clear that questions of constructive dismissal should be determined according to the terms of the contractual relationship and not in accordance with a test of ‘reasonable conduct by the employer.” The implied term of trust and confidence[227]There is an implied term in every contract of employment to the effect that the employer will not without reasonable and proper cause, conduct itself in a manner likely to destroy, or seriously damage the relationship of confidence and trust between employer and employee. In order to constitute a breach of the implied term it is not necessary for the employee to show that the employer intended any repudiation of the contract: the Tribunal’s function is to look at the employer’s conduct as a whole and determine whether it is such that its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it; or put another way, the vital question is whether the impact of the employer’s conduct on the employee was such that, viewed objectively, the employee could properly conclude that the employers were repudiating the contract. The correct test of repudiatory conduct by an employer is set out in the Court of Appeal judgment in the case of Paul Buckland 66 of 91 V Bournemouth University Higher Education Corporation [2010] EWCA Civ 121, and this is an objective test.[228]The House of Lords in Malik v Bank of Credit; Mahmud v Bank of Credit [1997] UKHL 23, held that the breach occurs when the proscribed conduct takes place. The employee may take the conduct as a repudiatory breach, entitling him to leave without notice. If the employee stays, the extent to which staying would be a waiver of the breach depends on the circumstances. Lord Steyn referred to the implied obligation covering a diversity of situations in which “a balance has to be stuck between an employer’s interests in managing his business as he sees fit, and the employee’s interest in not being unfairly and improperly exploited,” and to the impact of the employer’s conduct being objectively assessed to ascertain whether objectively considered, it is likely to destroy or cause serious damage to the relationship between employer and employee. If it is found to be so, then a breach of the implied obligation may arise.[229]A course of conduct can cumulatively amount to a fundamental breach of contract entitling the employee to resign and claim constructive dismissal: Lewis v Motorworld Garages Limited [1986] ICR 157 CA. Glidewell LJ said at para 169F “The breach of this implied obligation of trust and confidence may consist of a series of actions on the part of the employer which cumulatively amount to a breach of the term, although each individual incident may not do so. In particular, in such a case the last action of the employer which leads to the employee leaving need not itself be a breach of contract; the question is, does the cumulative series of acts taken e together amount to a breach of the implied term?”[230]The employee must leave in response to a breach committed by the employer. This breach may be an actual breach or an anticipatory breach … it is not enough that the employee expects the employer to repudiate the contract and leaves in anticipation.[231]Weston Excavating cited above; The employee “must make up his mind soon after the conduct of which he complains; for if he continues for any length of time without leaving, he will lose his right to treat himself as discharged”. Automatically unfair dismissal (section 103A of the ERA)[232]In a constructive dismissal case, the reason for the dismissal is the reason for which the employer breached the contract of employment: see (on the general principle for the purposes of constructive dismissal) Berriman v Delabole Slate Limited [1985] ICR 546 at [550H] to [551B].[233]The employee’s protected disclosures must be the “reason (or, if more than one) the principal reason” for the conduct which caused the employee to resign (see the wording of section 103A of the ERA).[234]Where the employee lacks two years’ continuous service to claim ordinary unfair dismissal, she will acquire the burden of showing, on the balance of probabilities, that the reason for dismissal was an automatically unfair reason — Smith v Hayle Town 67 of 91 Council 1978 ICR 996, CA The EAT in Ross v Eddie Stobart Ltd EAT 0068/13 confirmed that the same approach applies in whistleblowing claims. Detriment 229. Section 47B gives a worker the right not to be subject to any detriment by any act or any deliberate failure to act by his employer done on the ground that the worker has made a protected disclosure. Section 48(2) provides that on a complaint under certain subsections, including that concerned with detriment on the ground of having made a protected disclosure: “ …. it is for the employer to show the ground on which any act or deliberate failure to act was done.” 230 Section 47(B)(1) claim and the s103A claim concerned the ‘reason why’ question; i.e. what the grounds for any detrimental treatment were and what was the principal reason for the dismissal. Consideration of it requires an analysis of the mental processes, conscious or unconscious, which caused the individual concerned to have acted as they did. 231 Turning to the meaning of “detriment” it is necessary to consider the case of Chief Constable of West Yorkshire Police v Khan [2001] 1 WLR where it was said that the term has been given a wide meaning by the Courts and quoting the case of Ministry of Defence v Jeremiah [1980] QB 87 where it was said that: “a detriment exists if a reasonable worker would or might take the view that the [treatment] was in all the circumstances to his detriment”. 232 Derbyshire & others v St Helen’s Metropolitan Borough Council [2007] ICR 841 where the case of Shamoon v Chief Constable of The Royal Ulster Constabulary [2003] ICR 337 was quoted with approval. In Shamoon, Lord Hope stated as follows: “… the word ‘detriment’ draws this limitation on its broad and ordinary meaning from its context and from the other words with which it is associated… the Court or Tribunal must find that by reason of the act or acts complained of a reasonable worker would or might take the view that he has thereby been disadvantaged in the circumstances in which he had thereafter to work. But once this requirement is satisfied the only other limitation that can be read into the words is that indicated by Brightman LJ as he put it in the Ministry of Defence v Jeremiah [1980] QB 87 one must take all the circumstances into account. This is a test of materiality. Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment? An unjustified sense of grievance cannot amount to ‘detriment’…” Causation 233 Fecitt & Ors v NHS Manchester [2012] ICR 372, was a decision of the Court of Appeal, Elias LJ giving the main speech, Davis and Mummery LJJ concurring. The 68 of 91 Court held that the correct test, in relation to such a detriment claim, is whether the protected disclosure materially influenced, in the sense of being more than a trivial influence upon, the employer’s treatment of the whistle-blower, as opposed to the test being the one that would apply in the unfair dismissal context, of whether the protected disclosure was the sole or principal reason for the dismissal. See in particular paragraph 45. Further on, the Court of Appeal considered the question of whether such a claim must succeed if the treatment complained of was found to be “related to” the disclosure, or whether it was possible on appropriate facts for the Tribunal to distinguish, for example, between the fact of the disclosure and the manner in which it was made. The Court of Appeal accepted that in an appropriate case such a distinction should be drawn, although caution was required. This was the context and sense of its remarks at paragraph 51. 234 The legal test is whether the protected disclosure materially (in the sense of more than trivially) influences the employer’s treatment of the whistleblower? Burden of proof[235]In a claim brought under section 47B of the ERA it is for the employer to show the ground on which any act, or deliberate failure to act, was done — S.48(2). Once all the other necessary elements of a claim have been proved on the balance of probabilities by the claimant — i.e. that there was a protected disclosure, there was a detriment, and the respondent subjected the claimant to that detriment — the burden will shift to the respondent to prove that the employee was not subjected to the detriment on the ground that he had made the protected disclosure. Inferences can be drawn when considering whether there was a sufficient causal link between the making of the protected disclosure and the detriment complained of, as to the real reason for the action on the basis of its principal findings of fact given that it is for the respondent to show the ground on which it acted, or deliberately failed to act. Discrimination 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.[236]An actual or hypothetical comparator is required who does not share the claimant’s protected characteristic and is in not materially different circumstances from him. Para 3.23 of the EHRC Employment Code makes it clear that the circumstances of the claimant and comparator need not be identical in every way, what matter is that the circumstances “which are relevant to the [claimant’s treatment] are the same or nearly the same for the [claimant] and the comparator.”[237]Section 13 EQA requires not just consideration of the comparison (the less favourable treatment) but the reason for that treatment and whether it was because of the relevant proscribed ground. be These two questions can be considered separately and in stages; or they can intertwine: the less favourable treatment issue cannot be resolved without deciding the reason why issue. As was observed by Lord 69 of 91 Nicholls in Shamoon v Chief Constable Royal Ulster Constabulary [2003] UKHL 11 at paragraph 11: “…tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was. Was it on the proscribed ground which is the foundation of the application? That will call for an examination of all the facts of the case. Or was it for some other reason? … If the former, there will … usually be no difficulty in deciding whether the treatment, afforded to the claimant on the proscribed ground, was less favourable then was or would have been afforded to others.”[238]Section 136 of the EqA provides:(1) this section applies to any proceedings relating to the contravention of this Act.(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provisions concerned, the court must hold that the contravention occurred.(3) Subsection (2) does not apply if A shows that A did not contravene the provisions.(4) The reference to a contravention of this Act includes a reference to a breach of an equality clause or rule.”[239]In determining whether the respondent discriminated the guidelines set out in Barton v Investec Henderson Crossthwaite Securities Limited [2003] IRLR 332 and Igen Limited and others v Wong [2005] IRLR 258 apply. The claimant must satisfy the Tribunal that there are primary facts from which inferences of unlawful discrimination can arise and that the Tribunal must find unlawful discrimination unless the employer can prove that he did not commit the act of discrimination. The burden of proof involves the two-stage process identified in Igen. With reference to the respondent’s explanation, the Tribunal must disregard any exculpatory explanation by the respondents and can take into account evidence of an unsatisfactory explanation by the respondent, to support the claimant’s case. Once the claimant has proved primary facts from which inferences of unlawful discrimination can be drawn the burden shifts to the respondent to provide an explanation untainted by sex [or in the present case age], failing which the claim succeeds. 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.(2) A also harasses B if— (a) A engages in unwanted conduct of a sexual nature, and 70 of 91 (b) the conduct has the purpose or effect referred to in subsection (1)(b).(3) A also harasses B if— a) … (b) … (c) …(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.[240]The EHRC Employment Code provides that unwanted conduct can be subtle, and include ‘a wide range of behaviour, including spoken or written words or facial expressions’ para 7.7. Where there is disagreement between the parties, it is important that an Employment Tribunal makes clear findings as to what conduct actually took place.[241]The word ‘unwanted’ is essentially the same as ‘unwelcome’ or ‘uninvited’ confirmed by the EHRC Employment Code at para 7.8. Unwanted conduct means conduct that is unwanted by the employee assessed subjectively.[242]Section 26(4) states that, in determining whether conduct has the proscribed effect, a tribunal must take into account the perception of the claimant, the other circumstances of the case and whether it is reasonable for the conduct to have that effect. There can be cases where the claimant when alleging the acts violated his or her dignity, is oversensitive and it does not necessarily follow that an act of harassment had objectively taken place despite a subjective view that it had. 27 Victimisation 243. .(1) A person (A) victimises another person (B) if A subjects B to a detriment because: 71 of 91 (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.(4) This section applies only where the person subjected to a detriment is an individual.(5) The reference to contravening this Act includes a reference to committing a breach of an equality clause or rule..[244]A claimant seeking to establish that he has been victimised must show two things: first, that he has been subjected to a detriment; and, secondly, that he was subjected to that detriment because of a protected act. Contrary to the claimant’s reliance on a hypothetical comparator there is no need, for the claimant to show that his treatment was less favourable than that which would have been afforded to a comparator who had not done a protected act.[245]The following are ‘protected acts’ for the purpose of S.27(1):• bringing proceedings under the EqA• giving evidence or information in connection with proceedings under the EqA• doing any other thing for the purposes of or in connection with the EqA, and• making an allegation (whether or not express) that A (the alleged victimiser) or another person has contravened the EqA — S.27(2).[246]S.212(1) EqA expressly states that detriment does not include conduct that amounts to harassment. A claim alleging conduct of that nature should generally be pursued by way of a claim under S.26 EqA, although, if there is any doubt, both claims can be brought in the alternative.[247]The EHRC Employment Code contains a summary of treatment that may amount to a ‘detriment’: 72 of 91 ‘Generally, a detriment is anything which the individual concerned might reasonably consider changed their position for the worse or put them at a disadvantage. This could include being rejected for promotion, denied an opportunity to represent the organisation at external events, excluded from opportunities to train, or overlooked in the allocation of discretionary bonuses or performance-related awards… A detriment might also include a threat made to the complainant which they take seriously and it is reasonable for them to take it seriously. There is no need to demonstrate physical or economic consequences. However, an unjustified sense of grievance alone would not be enough to establish detriment’ — paras 9.8 and 9.9.[248]Where it is not obvious that the claimant has suffered a detriment, the situation must be examined from the claimant’s point of view. In Chief Constable of West Yorkshire Police v Khan 2001 ICR 1065, HL, Following Khan, Shamoon v Chief Constable of the Royal Ulster Constabulary 2003 ICR 337, HL, established that a detriment exists if a reasonable worker would or might take the view that the treatment was in all the circumstances to his or her disadvantage. The House of Lords felt that an unjustified sense of grievance could not amount to a detriment but did emphasise that whether a claimant has been disadvantaged is to be viewed subjectively. This was subsequently confirmed by the House of Lords in Derbyshire and ors v St Helens Metropolitan Borough Council and ors (above). Lord Neuberger held that the test is not satisfied merely by the claimant showing that he or she has suffered mental distress: it would have to be objectively reasonable in all the circumstances.[249]In Warburton v Chief Constable of Northamptonshire Police 2022 EAT 42, the EAT it is sufficient that a reasonable worker might take the view that the conduct in question was detrimental. The test of detriment has both subjective and objective elements. The situation must be looked at from the claimant’s point of view, but the claimant’s perception must be ‘reasonable’ in the circumstances. Conclusion: applying the law to the facts Time limits[250]With reference to the first issue, namely time limits, the Tribunal found as follows: As the claim form was presented on 14 October 2023 and taking into early happened before 3 April 2023 have not been brought within the statutory limitation period of three months. There was no conduct extending over a period, and it is not just and equitable to extend time taking into account the balance of prejudice which favours the respondent given the claimant’s less than coherent dates, the unmeritorious claims and the claimant’s less than credible explanation for failing to issue proceedings within the statutory time limits. The claimant explained she was unaware of time limits and her rights under the Equality Act 2010, which was not the case as the claimant knew from late 2022. It was not just and equitable to grant the claimant an extension of time and the claims relied on which allegedly 73 of 91 took place before the 4 May 2023 are dismissed. In the alternative, the Tribunal has considered each complaint (including the out of time ones) to ascertain whether there was a continuous act, and its findings are set out below.[251]The Tribunal agrees with Mr McPhail that as regards the section 48 Employment Rights Act 1996 claims there was no evidence that it was not reasonably practicable for the claimant to issue proceedings for detriment within the statutory time limit. The claimant was unspecific as to when Clare Brown allegedly shared oral disclosures about health and safety around the team took place. The remaining two detriments claim 4.1.1 and 4.1.3 the last being the alleged oral warning on 7 June 2023 were in time. However, as recorded below the claimant has failed to satisfy the Tribunal that the detriments she relied on took place as recorded in the findings of facts. In relation to the three detriment claims relied on the Tribunal concluded there was not a series of similar acts or failures and the claimant had not satisfied it that the alleged acts had taken place at all.[252]With reference to issues2.1 and2.2 the Tribunal found alleged disclosure 2.3.1 and 2.3.3 were not protected disclosures made to the respondent as defined in section 43B of the Employment Rights Act 1996? In particular: 1. The claimant did not disclose information, 2. The claimant did not believe the disclosure of information was made in the public interest. 3. The claimant did not believe it tended to show that: 1. … 2. A person had failed, was failing or was likely to fail to comply with any legal obligation; 3. The health and safety of an individual had been, was being or was likely to be endangered.[253]Turning to the individual qualifying disclosures relied on, namely, or around 1 January 2023, the claimant informing Darren Whalen that there were no work gloves for the team to use when working on machinery, the claimant was aware that there were work gloves available, she wanted heavy duty gloves to protect her delicate hands as explained to Clare Brown in the 18 January 2023 email. In short, it was a simple request for heavy duty gloves which were provided.[254]With reference to the alleged “near miss” occurring on the 18 January 2023 the Tribunal accepts the claimant raised it with Clare Brown on the 24 January 2023 and in doing so she held a genuine belief that it was a near miss which required recording and this was in the public interest. It was objectively reasonable for the 74 of 91 claimant to have this belief - Chesterton Global Limited (above) given the nature of the interests affected and the extent to which they are affected in a public building housing industrial machinery. The Tribunal was satisfied the statement had “sufficient factual content and specificity” such as is capable of tending to show a relevant health and safety failure within the meaning of section 43B(1)(a) to (f) ([35] of Kilraine). Mr McPhail submitted that as the incident arose during the claimant’s training session it is apparent the public would have no interest in the matter. The Tribunal did not agree. It was open to the claimant to believe that the safety of the respondent’s employees when working with large historical machinery was something the pubic would be interested in, and at the time when the claimant referred to the alleged near miss incident she was unclear about the reporting practices and what management considered to be a “near miss” when it came to accidents at work.[255]With reference to disclosure3.3.3, namely, on 13 April 2023, the claimant highlighting the “near miss” incident had not been documented and that it should be formally recorded, the Tribunal found this was not a protected disclosure. As recorded in the findings of facts, the claimant asked for the reporting link for her to use as the “near miss” had not been formally recorded. By this date the claimant was aware the respondent did not consider the incident to amount to a “near miss” and it had been made clear the obligation was on her to report it. The claimant never reported it, undermining her evidence that by 13 April 2023 she believed the near miss was a breach of health and safety and should be recorded when she herself had been made aware and reminded of the reporting policy on a number of occasions by a number of managers. It is notable that at the time she resigned the “near miss” was an allegation she disingenuously raised at the 7 June 2023 meeting with Jennifer Brook as found by the Tribunal when she pretended not to know or understand the incident reporting process and system.[256]Finally, with reference to the final disclosure 2.3.4, namely, between 25 and 27 April 2023, the claimant raised concerns to Clare Brown that the team members training her were not operating safe practices, the Tribunal found the claimant had emailed Clare Brown asking for risk assessments and alleging team members training her were not “demonstrating safe practiced” without giving any particulars. When Clare Brown asked for further information about team members not operating safe practices the claimant never provide it. The Tribunal concluded that a generalised allegation without any specifics whatsoever is not a disclosure of information objectively assessed, and it took the view that the claimant had not subjectively believed her statement tended to show a health and safety failure, had she done so she would have provided the specific instances when the trainers were not operating a safe practice that breached health and safety - Kilraine (above) in which it was held the statute requires that the statement must have “sufficient factual content and specificity” such as is capable of tending to show a relevant failure within the meaning of section 43B(1)(a) to (f).[257]The claimant, who described herself at this liability hearing as being “very familiar” with risk management, was unable to set out coherently the unsafe practices of 75 of 91 her colleagues at the time. The claimant referred to the video evidence allowed into evidence late, and it was played to the Tribunal who concluded the evidence showed two men working together on a machine and sharing knowledge, which is the usual practice in employment when one person may take the lead when explain a technical point to another. This is known as team working and does not denote lack of experience, knowledge or unsafe practices.[258]Given the Tribunal’s finding that the claimant had made one protected disclosure on the 24 January 2023, the Tribunal proceeded to consider the detriments alleged at 3.1.1, 3.1.2 and 3.1.3 satisfied that the recipient of that disclosure was to the employer. DETRIMENT (SECTION 47B EMPLOYMENT RIGHTS ACT 1996)[259]As recorded above in the findings of facts which the Tribunal does not intend to repeat the Tribunal concluded the claimant was not subjected to any detriment, found the claimant had not satisfied it on the balance of probabilities that:259.1 Allegation3.1.1 Clare Brown did not ignore and avoid the claimant for the final two months of her employment, delegating management tasks to Rex Ashton. The Tribunal found this did not happened. Clare Brown and the claimant were in a difficult position. Their relationship had broken down to such an extent that they did not trust each other. The claimant repeatedly complained about Clare Brown’s management skills and Clare Brown was concerned that she would be exposed to unjustified criticisms/allegations if she met with the claimant without someone else being present. The position was untenable, and HR can be criticised for failing to support both manager and employee to a resolution, for example, external mediation and formally affecting a change of manager, for example, taking Clare Brown out of the loop and allocating Darren Whalen on a formal basis as opposed to informally. The claimant referred to Darren Whalen and Rosalind Stone during this period, although she did email Clare Brown on occasion and met with her in May as recorded below.259.2 Allegation3.1.2 Clare Brown did not shared the claimant’s oral disclosures about health and safety around the team. The Tribunal found this did not happen.259.3 Allegation3.1.3 The claimant was not given a verbal warning from senior management for allegedly running machines without supervision on 7 June 2023. The Tribunal found this did not happen. UNFAIR CONSTRUCTIVE DISMISSAL FOR MAKING A PROTECTED DISCLOSURE (SECTION 103A EMPLOYMENT RIGHTS ACT 1996)[260]The claimant was not dismissed and she resigned on 7 June 2023 after a discussion with Jennifer Brooke about mistakes she had made referred to and accepted as “a one-time mistake.”[261]With reference to issue 4.1.1, namely, did the respondent do the things alleged in the claimant’s Particulars of Claim at paragraphs 2, 3, 4, 5, 7, 9, 10, 11, 12, 13, 15, 16, 17, 19, 20, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31 and 32 of the 76 of 91 Particulars of Claim, the Tribunal found that it had not after spending a great deal of time deliberating on the alleged breaches of contract to determine whether there was a fundamental breach, a cumulative breach of contract or no breach. The Tribunal’s findings are set out above, which it does not intend to repeat. In short, it did not accept there was a breach of the implied term of trust and confidence, and when looking at this possibility took into account the alleged discriminatory acts. Had the burden of proof shifted to the claimant (which it did not) and the respondent then failed to satisfy the Tribunal that its actions were not tainted by race, sex or age discrimination, such an act would have amounted to a serious breach of the implied term of trust and confidence despite the claimant not including them in the paragraphs cited above under the heading unfair constructive dismissal.[262]Para: 22 of the Particulars of Claim is one of the many allegations where the claimant has exaggerated her evidence and taken words out of context, elaborating her evidence to fit in with the case she was presenting. Clare Brown in her written statement refers to an interaction with the claimant on the 12 April 2023, which was not challenged by the claimant in cross-examination. Clare Brown’s evidence is that the claimant was arguing about cotton breaking and giving her view saying, “she had the mathematical skills which had saved companies thousands of pounds.” Clare Brown told her “as she had only been here for 6 months, she should concentrate of completing her core training” and queried how the claimant’s comment that “even a 3 year old can see it is not right” would make “individuals like Rex and Neil feel who have detailed experience of machines as they have been there for 20 years.” The claimant’s reliance on this as a fundamental breach of contract has no basis, and her evidence has been specifically slanted to suggest there was a breach of contract when there was none, as found by the Tribunal in its findings of facts above[263]There was one matter the Tribunal considered at great length, which was that Clare Brown ignored the claimant since she had raised concerns about her, as referenced in Particulars of Claim at para. 30 and victimisation under section 27 at 11.2.3, given Clare Brown’s admission that after the meeting on 26 February 2023 “things were turning really bad,” the claimant’s “patronising tone” at the meeting held on 29 March 2023 and the 12 April 2023 “verbal aggression from the claimant” which resulted in Clare Brown being concerned that her words were twisted and manipulated, people were played off against each other. The result of HR advice was Clare Brown should avoid being alone with the claimant, to have someone else with her but at the same time not avoid the claimant. The claimant’s case is that Clare Brown did not say hello to her on one occasion as they passed on the stairs, and on the second and last occasion, avoided her when walking on the street on one occasion. Clare Brown’s evidence was that she was busy and for 12 days on holiday/not working. Given the circumstances, the Tribunal found as set out below under victimisation, the burden of proof had shifted in relation to allegation 11.2.3, and that the respondent and Clare Brown had provided an explanation untainted by discrimination. In carrying out this 77 of 91 exercise the Tribunal notes the unreliability of the claimant’s evidence, and her failure to inform the Tribunal that she had swopped lunch duty with Clare Brown, and Clare Brown had worked on a machine with her on the 31 May 2023.[264]The Tribunal found the respondent had not behaved in a way that was calculated or likely to destroy or seriously damage the trust and confidence between it and the claimant, and there was no breach of the implied term of trust and confidence. In relation to the claimant being ignored by Clare Brown during the last 2 months of her employment, the Tribunal preferred Clare Brown’s evidence that she had not acted in this way. It accepted on the balance of probabilities that Clare Brown had reasonable and proper cause for preferring to see the claimant with another person present because of the aggressive way the claimant behaved towards her. Clare Brown wanted to avoid a situation where the claimant raised allegations when it one person’s word against another.[265]The Tribunal took the view the claimant had an unjustified sense of grievance, imagining slights and conspiracies when there were none, for example, when Jennifer Brook on 7 June 2023 discussed Rex Ashton reporting issues about the way the claimant had worked on the machine. The claimant accepted she had made a mistake, nevertheless she concluded Rex Ashton was “acting as a stool pigeon for Clare…I feel I have been set up…” without any evidence whatsoever. The claimant fabricated grievances that were clearly not the case, for example, “I report incidents, nothing is ever written up, It’s pished tossed away as unimportant” and an oral warning when none had been given. In sort, the claimant resigned because she believed, as a qualified engineer, she was not given the respect and training she deserved, she was not individually being trained by Clare Brown despite numerous requests made by her so that she could be fast tracked to a higher grade and pay. When the claimant realised that she would need to carry out the same training as everyone else, being trained by colleagues who she did not respect, and would not be fast tracked, the claimant resigned with the intention of bringing these proceedings. It is notable that after the meeting with Jennifer Brook the claimant collected her personal items, and went home early following which she submitted her resignation without referring to the non-existent oral warning. AUTOMATIC UNFAIR DISMISSAL (PROTECTED DISCLOSURE)[266]With reference to issue 5.1, the claimant (who had less than 2 years’ service) has not satisfied the burden of proving that the respondent had acted in repudiatory breach, and that the reason or principal reason for the conduct in breach was the alleged protected disclosures: Ross v Eddie Stobart UKEAT/0068/13/RN). The claimant’s relies on detriment 3.1.1, 3.2.2 and 3.1.3 which the Tribunal found as recorded above did not happen. The claimant does not rely on the numerous alleged breaches of contract set out in her constructive unfair dismissal claim, which have also not been made out. Had the Tribunal given the claimant the benefit of the doubt as a litigant in person, and had it taken into account paragraphs 2, 3, 4, 5, 7, 9, 10, 11, 12, 13, 15, 16, 17, 19, 20, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31 and 32 of the Particulars of Claim, the claimant 78 of 91 failed to establish any fundamental or cumulative breach of contract, and it would not have assisted her in shifting the burden of proving the respondent had acted in repudiatory breach for the purpose of section 103A of the ERA..[267]Had the claimant successfully shifted the burden (which she has not) and the Tribunal would have gone on to find the claimant failed on causation. WRONGFUL CONSTRUCTIVE DISMISSAL[268]It is common ground that the Claimant was entitled to one month’s notice of termination. The claimant was not constructively dismissed and this claim fails as she is not entitled to receive contractual notice pay when she resigned without notice. DIRECT AGE DISCRIMINATION (SECTION 13 EQUALITY ACT 2010)[269]With reference to the issue 7, namely, did the following acts of less favourable treatment take place as alleged by the claimant the Tribunal found the claimant has not reversed the burden of proof set out in section 136 of the EQA, and as recorded in the findings of facts, preferring the more credible evidence given by Clare Brown. Mr McPhail submitted the claim as pleaded by the claimant (who has not made any application to amend) relate to one meeting referenced in the Particulars of Claim to have happened on the 1 March 2022 and referred to by the claimant in her witness statement as occurring on the 8 February 2022. The Tribunal agreed. Nevertheless, it has tried to take the claimant’s case at its highest, despite the confusion of dates, given the claimant is a litigant in person, by considering the contemporaneous documentation.[270]On the credible evidence before it, the Tribunal found allegations numbered 7.1.1 to 7.1.7 made by the claimant in relation to Clare Brown, did not take place as follows: 1. Clare Brown did not tell the claimant she “grossly overthinks things” and did not mock the Claimant by making hand gestures suggesting the Claimant’s complaints are in her mind. 2. Clare Brown did not say “I know what’s wrong with you, you’re 3. Clare Brown did not ask the claimant if she has had a blood test to show whether she is perimenopausal or not. It is notable that the claimant, in oral evidence, admitted lying about the blood test and this brings into stark question her allegation that Clare Brown asked her if she had taken one. 79 of 91 4. Clare Brown telling the Claimant she should go home and tell her husband to take her on holiday. As recorded in the findings of facts the proper context needs to be considered, in which Clare Brown and the claimant discussed the claimant being taken away on holiday by her husband, information the claimant had offered up when she met with Clare Brown on a date in February 2023. The Tribunal found the claimant met with Clare Brown complaining of feeling emotional, crying and tired, she had spoken to her husband about going on a holiday but found it difficult to “pin him down.” Clare Brown had a discussion with the claimant and suggested r the claimant “could be” perimenopausal because this was how she had felt. Clare Brown, trying to be kind and supportive, and suggested to the claimant she should tell her husband how she was feeling emotional and needed to take a holiday. As found by the Tribunal, Clare Brown had described her experience of perimenopause and not questioned the claimant about whether she was perimenopause. 5. Clare Brown telling the Claimant she is perimenopausal during her PDR meeting on or around 6 March 2023 and that is why she finds certain comments inappropriate. Clare Brown did not tell the claimant she was perimenopause on or around the 6 March 2023 or at an earlier or later date, see above. 6. Clare Brown did not assume the claimant was menopausal and/or perimenopausal, she describe how she had felt when tearful, emotional and tired, and it could be perimenopause. This comment was made after the claimant had volunteered information earlier that she was menopausal/perimenopause. 7. Clare Brown took the claimant’s complaints seriously and there is no satisfactory evidence she considered the claimant was oversensitive due to perimenopause and/or the menopause when she shared information with Clare Brown about her health on the first day of work. Examples of when Clare Brown took the claimant’s complaints seriously can be found in the findings of facts, including the claimant’s concerns over a racist remark made by a visitor. It is notable that the claimant’s complaints to and about Clare Brown were high-handed and discourteous, contributing to the deteriorating relationship against a background of the claimant persistently requiring Clare Brown to give her special treatment by training her personally.[271]With reference to the issue 7.2, namely, did the respondent treat the claimant less favourably that it treated or would treat the relevant hypothetical comparator, the Tribunal found that it had not having concluded there was no detriment to the 80 of 91[272]The Tribunal did not find Clare Brown’s explanation tainted by age discrimination, and the conversation would have been no different had a woman of a younger age in exactly the same circumstance as the claimant including raising the issue of being menopausal at the first day of work as recorded by the Tribunal above. In short, Clare Brown was trying to be kind and sympathetic to the claimant who was crying, which was out of character, and shared her experience of feeling upset and emotional when she was perimenopausal to make the claimant feel better,[273]Had the claimant established a hypothetical comparator who was younger and in the same circumstances as the claimant on all fours (which she has not) the Tribunal would have gone on to find any was any less favourable treatment was because of/on the grounds of the Claimant’s age, contrary to the Equality Act 2010, but because Clare Brown was feeling sorry for the claimant and trying to make her feel better, taking into account Clare Brown’s mental processes at the time.[274]There is no issue concerning whether the treatment of the claimant was a proportionate means of achieving a legitimate aim and no evidence provided on behalf of the respondent of any legitimate aim.[275]With reference to issue 8.1, namely, was the Claimant subject to unwanted conduct, the Tribunal repeats its findings above in relation to the acts of direct age discrimination repeated as acts of unwanted conduct alleged at para.8.2.1 (a), (b), (c), (d) and (e).[276]With reference to the alleged unwanted conduct relating to the claimant using the respondent’s machinery, the Tribunal found the claimant has not discharged the burden of proof and the allegations set out in 8.2.2(a) to(b) did not take place as alleged. The Tribunal found as follows: 1. Clare Brown did not comment that the Claimant’s nails were “awful”. This did not happen, the Tribunal preferring the more credible evidence of Clare Brown as recorded above having found the claimant was not a credible witness. Mr McPhail submitted the claimant’s account has been inconsistent. Para 3 of the Particulars of claim refer to this happening at the start of her employment in July 2022, in evidence the claimant refers to a day in August and on 11 September 2023. The claimant’s evidence was confused. The Tribunal agreed. 2. Clare Brown did not tell the Claimant that she was “not allowed to ask questions about machines”. The claimant has 81 of 91 provided no date for this allegation, which is potentially outof-time, and taking into account the factual matrix above, the Tribunal did not accept Clare Brown had used these words. In direct contrast the evidence clearly shows the claimant pushing to be trained by Clare Brown personally, and had she told the claimant she could not ask questions about the machines it is surprising the claimant was so eager to be trained by her that she made it an issue. 3. Clare Brown did not tell the Claimant “It wasn’t her job” to solve any issues with the Respondent’s machinery and that “it was left for the men to do”. The Tribunal repeats its findings above. 4. Clare Brown saying, “you have only been here six months; they have been here 20 years”. This comment was said according to the claimant’s witness statement on the 14 February 2023, who was in the early months of her training and eager to take on repairing the machines when she was not trained to do. In direct contrast to the claimant’s evidence she was given the opportunity to carry out maintenance and be trained, evidenced in the recordings she took as a training tool and the covert recording of the meeting with Darren Whalen. It is a matter of fact referenced by Clare Brown, Darren Whalen and the claimant herself that Neil Holden and Rex Ashton had been employed on the machines for over twenty years, the claimant was recorded saying “OK they’ve been here for 20 years. They get to do it but I know how to do these things…this is a tiny thing in a big thing…” 5. Clare Brown did not comment to the claimant “you should come to me if you have a problem, not go behind my back.” The claimant again has been unable to give consistent evidence on this allegation, maintaining in the Particulars of Claim it took place on the 27 February 2023 and in crossexamination the date was in or around November 2022. As submitted by Mr McPhail, the claimant has not made an application to amend. The Tribunal found the claimant’s evidence confusing, it was not credible and it preferred the more straightforward evidence given by Clare Brown for all the reasons set out above dealing with the numerous facts which undermined the claimant’s credibility.[277]With reference to issue 8.3, namely, if so, is that conduct related to the Claimant’s sex, had the claimant proven that she was subjected to the unwanted conduct alleged on the balance of probabilities, which she has not, the Tribunal would 82 of 91 have found they were not related to sex and lacked the purpose and effect required to make out a section 26 claim.[278]With reference to issue 8.4, namely has that conduct had the purpose or effect of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment for the Claimant, the Tribunal found it had not assessed objectively, and had the claimant not been so intent on finding fault with Clare Brown, she would have realised that she was still in the early months of her training and the fact that her male colleagues resolved issues with the machinery was down to their twenty-years’ experience which had nothing to do with their sex. Darren Whalen made the position very clear in the recorded covert telephone call, and the claimant should have realised that it was a fact she was inexperienced when her male colleagues were very experienced and expert on the machines, despite the claimant’s failed attempt to prove otherwise at this liability hearing.[279]With reference to issue 8.5, the Tribunal found for the reasons given, it was not reasonable for the conduct to have had that effect. HARASSMENT RELATED TO AGE (SECTION 26 EQUALITY ACT 2010)[280]With reference to issue 9.2.1(a), (b), (c ), (d) and (e) the Tribunal repeats its conclusion made in relation to the direct age discrimination claim culminating in its finding that the claimant was not subjected to unwanted conduct. It was the claimant who had first raised the issue of menopause and the Tribunal agreed with Mr McPhail’s submission that it is hard to see how, objectively assessed, Clare Brown’s comments as found by the Tribunal above, which are different to the claimant’s allegations when taken in context, breached section 26 of the EQA. Clare Brown was empathetic and kind to the claimant when she spoke about the claimant taking a break and opened up about the experiences she had being emotional when perimenopausal.[281]With reference to the issue, 9.3 and 9.4, namely, if so, is that conduct related to the Claimant’s age, the Tribunal found that it was not. However, it did not accept Mr McPhail’s submission that menopause is something distinct from age, recognising that younger women can go through perimenopause and menopause for a variety of reasons, usually referred to in the terms of “early menopause” because perimenopause and menopause commonly occurs to women of a certain age, although that age frame can be wide. This does not assist the claimant in her argument that the words used were related to her age, taking into account why they were used including the fact that the claimant was the first to raise menopause and Clare Brown’s purpose, which was to be kind and understanding, and not have the purpose or effect of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment for the Claimant, and nor did they have this effect objectively assessed. 83 of 91[282]With reference to issue 9.5, the Tribunal found it was not reasonable for the conduct to have had that effect, taking into account context and the factual matrix. The Tribunal repeats its findings in relation to harassment relating to sex above.[283]With reference to issue 10.1, the Tribunal found the claimant was not subjected to unwanted conduct alleged at 10.2.1, 10.2.2, 10.2.3, 10.2.4, 10.2.5, 10.2.6, 10.2.7, 10.2.8, 10.2.9, 10.2.9 and 10.2.11. Turning to the individual allegations of the alleged conduct relied upon by the claimant, the Tribunal found as follows: 1. Turning to allegation 10.2.1, Wayne Carter did not repeatedly ask the claimant to be part of a diversity group at the respondent. He first asked the claimant in or around 1 August 2022” and the Tribunal found the claimant’s evidence concerning the exchange less than credible. She was “shocked” at being asked to join a diversity group, despite her colleague (and witness in this case) Nicola Steward, responding positively at the time agreeing to join. The claimant described how Wayne Carter was “using a sledgehammer to break a vase” presenting himself as a “white saviour” singling the claimant out because she was an “ethnic minority.” The claimant’s evidence was undermined by that given by Nicola Steward and the Tribunal concluded it could not be relied on, preferring Wayne Carter’s evidence that he approached the claimant in good faith to see if she was interested in joining the group, and the claimant did not make her position clear at the time but left it hanging. The claimant did not make her position clear until she raised a complaint about Wayne Carter, who had approached her when the diversity group had been sent up to see if she was interested. It is notable in the transcript of the covertly recorded meeting held on 8 March 2023 when the claimant knew she was being recorded for this litigation, the claimant referred briefly to Wayne Carter asking her to join the diversity group “three times he came to me on the shop floor and spoke to me about diversity and inclusivity…I’ve had some quite bad times with the outside world…where people were just coming at me racially…so to suddenly come to a job where the first thing I’ve been approached about is diversity and inclusivity…I was feeling vulnerable about race…I’m not here to do your diversity thing.” On the claimant’s own account she was sensitive to diversity issues, and there was no way that Wayne Carter knew the claimant’s feelings about joining a diversity group, and it was only when the claimant made it clear she was not interested Wayne Carter no longer spoke to the claimant to see if she would like to be invited to join. 2. Allegation 10.2.2 The claimant was not singled out to join the diversity group as a person of colour. It is undisputed Wayne Carter approached a number of people to join the diversity group. 84 of 91 3. Allegation 10.2.3 Rex Ashton did not say to the claimant on 21 August 2022 “wouldn’t it be great for a person like you to help Wayne and he’s doing it for the right reasons”. 4. The Tribunal found on balance, taking into account the claimant’s evidence, and that of Rex Ashton and Julie Whitehouse, the claimant because she had been asked by Wayne Carter to join the diversity group and believed that this was an act of race discrimination. Julie Whitehouse and Rex Ashton attempted to put her mind at ease, and Julie Whitehouse told the claimant that Wayne Carter had approached her. In crossexamination Rex Ashton said the diversity group was an “excellent idea” and Wayne Carter had approached the claimant as part of his duties acting “within the remit of his role.” Rex Ashton did not try and persuade the claimant to join the diversity group as alleged and did not use the words set out in the allegation. The claimant did not complain about Rex Ashton at the time, and she referenced the allegations in her written grievance as follows: “it seemed that other members now knew about the problem and approached me as to why I would not take on the role. I felt as I was singled out as a person of colour by Wayne and no one else was asked to join this group.” The claimant’s evidence was not credible, and the Tribunal preferred the evidence given by Rex Ashton as more credible and fitted better in to the factual matrix. 5. Allegation 10.2.4 Wayne Carter did not tell the Claimant how his neighbour’s son was “beaten up by the local white boys” and she has misrecollected the conversation, putting a discriminatory slant on it when there was none. The conversation that took place as set out above, the claimant’s dates are inconsistent as recorded and the conversation took place on the 21 August 2022 without there being any reference to “white boys.” The Claimant’s evidence that Wayne Carter was trying to intimidate and frighten her by discussing his concerns about an argument which involved two families made no sense, and the Tribunal concluded the claimant had exaggerated her evidence for effect to support her race discrimination complaint. Wayne Carter agreed that there was a conversation about a dispute between two families involving the police, dispute and he did not mention “white boys” but disputed that this conversation took place on the 21 August 2022. He shared this information with the claimant because he was concerned about his family and thought he and the claimant got on well. 6. Allegation 10.2.5 Wayne Carter did not ask the Claimant if she knew how he “could get an Afro-Caribbean man to work here.” The Tribunal did not find the claimant’s evidence credible and her confusion over the dates when the alleged racist comment was made, and her reliance on notes that were not cotemporaneous but written later, undermined her evidence as did the lack of any documentation or record in a meeting until 2023. The claimant did not cross-examine Clare Brown on whether she was told about the Afro Caribbean allegation in 2022, which Clare Brown denies. Had this allegation taken place as described by the claimant, who was aware of the 85 of 91 time limits for discrimination complaints, she would have raised it with the respondent nearer the time and failed to do so. The Tribunal does not find the allegation credible, and the claimant’s evidence that she had reported the allegation to various people including Clare Brown and Rosalind Stone was an attempt to circumvent the evidential problems caused by her delay in mentioning the allegation until 2023 when she was preparing her claim, including over a lengthy period of time covertly recording conversations and making notes described by the claimant as contemporaneous when they were not. The claimant has not shifted the burden of proof and the Tribunal finds the comment was not made as alleged by Wayne Carter. 7. Allegation 10.2.6 Rosalind Stone did not tell the claimant that Wayne Carter would be mortified if he knew the claimant was talking about him. The Tribunal preferred Rosalind Stone’s evidence that she told the claimant Wayne Carter was mortified to have caused her upset, it was not his intention and he would respect her request not to speak to her about the diversity group again, which fits coherently in the factual matrix including seven months later when the claimant informed HR that Rosalind Stone had “handled the situation well” and the claimant had confirmed to her she was happy with the outcome. 8. Allegation 10.2.7 Clare Brown did not say “you would have hated being in yesterday. Head office have sent photographs in to take pictures of staff, they want images for the publications and want to represent people. They have even asked for a volunteer who doesn’t come anymore in a wheelchair to have their photo taken. They even asked Roger”. The Tribunal refers to its findings above. 9. Allegation 10.2.9 Clare Brown does not refer to the fact a group of visitors were French on or around 12 April 2023. It was however the respondent’s practice to advice employees and volunteers if there was a group visiting the museum in order that they were prepared. 10. Allegation 10.2.8 In the context of a man commenting how “Indians [are] coming to the country and buying all of the water in Aldi”. Clare Brown did not say to the Claimant that this was “more banter than racism” and Julie Whitehouse did not tell the Claimant “should get over herself”. The more credible evidence given by Clare Brown and Julie Whitehouse is supported by contemporaneous documentation underlining the historically inaccurate evidence given by the claimant. The Tribunal took into account the claimant’s email dated 17 November 2022 and Clare Brown’s email of the same date and the claimant’s response from which is clear Clare Brown was not treating the complaint as “banter” and there is no evidence that she did. Julie Whitehouse was off sick and could not have been at the meeting that took place over this comment on 17 November 2022. 86 of 91 11. The exchange of emails reflect that the claimant’s allegation set out in Para 11 of the Particulars of Claim and the harassment allegation at paragraph 11.2.8 of the agreed list of issue, have no basis and the burden of proof has not been shifted to the respondent. 12. Allegation 10.2.10 Rex Ashton did not say “Indian people [wash] themselves with their hands rather than use toilet paper and then eat” and how this is “foul”. The Tribunal was concerned this was a serious allegation against Rex Ashton, and the claimant compounded the fabrication by her reference in submissions to how she was “extremely violated. I was shocked and disgusted by his behaviour.” 13. Allegation 10.2.11 Employees can take fabric marked as seconds from the Respondent for free, including the claimant. The claimant and other employees must pay for fabric that was not marked down as seconds as required under the respondent’s written policy.. 284. . With reference to the issues 103, 10.4 and 10.5, namely, if so, is that conduct related to the claimant’s race, for the avoidance of doubt the Tribunal found there was no conduct relating to the claimant’s race, and there was no conduct which had the proscribed purpose in section 26.[285]With reference to the issue 11.1, namely, did the claimant carry out the following protected act, the Tribunal found the following: 1. Protected Act 1 – Informing the Respondent’s People Services discriminatory behaviour on 27 February 2023. The Tribunal found that neither were protected acts. The claimant cannot be relied on to provide a credible account of her communication with People Services Support Line, and the account she gave of her conversation with Suzanne Kellett was not credible as found by the Tribunal in its findings of facts, particularly the contradiction in the claimant’s evidence concerning her excellent memory when it came to certain events and lack of memory when it came to the contradictions between her pleaded case and evidence. The Tribunal agreed with Mr McPhail that the claimant’s explanation for very detailed account she provided was her memory is not credible because she would not be able to remember the meeting at that level of detail. The fact that the claimant when asked how she wanted her claim to be resolved confirmed she “just wanted” Clare Brown to “not talk about personal information” and there was no reference to race discrimination or any matter which could amount to discrimination allegations, such as describing Clare 87 of 91 Brown as misogynistic and homophobic in the Particulars of Claim, allegations not dealt with in the claimant’s witness statement. In addition, the claimant in her witness statement alleges she called Clare Brown ageist when this was not pleaded.. 2. Protected Act 2 – Informing Darren Whelan of the same discriminatory behaviour on 8 March 2023. The Tribunal found the claimant has failed to pinpoint where in the covert recording she carried out a protected act. The Tribunal has carefully checked the transcript to see if there was a protected act, and the claimant was given a one and a half hour break to prepare her submissions responding to Mr McPhail’s oral submissions (having had time to read his written submissions) and she was unable to clarify which element was being relied on. It is notable the claimant emailed the Tribunal after oral submissions had finished and during deliberations (without being invited to do so) adding an additional detriment and still being unable to specify the protected act relied on her in the transcript. It is not for the Tribunal to enter into the arena and make the claimant’s case for her, and she has failed to discharge the burden of proof. The Tribunal finds there was no protected act in the conversation with Darren Whelan on 8 March 2023. If the Tribunal is wrong on this point, the claimant would have failed on causation. 3. Protected Act 3 – Informing Rosalind Stone of concerns relating to Clare Brown’s management on 3 May 2023. As set out by the Tribunal in its findings of facts, the claimant did not inform Rosalind Stone of any concerns relating to Clare Brown breaching the Equality Act 2020 and what was said at the 3 May 2023 meeting was not the claimant carrying out a protected act. The Tribunal repeats its observations above about the claimant’s credibility when she asserts she was able to recollect such detail as set out in her witness statement from memory in respect of the 3 May 2023 meeting, and it found her evidence was not believable. 4. Protected Act 4 – raising a grievance on 7 June 2023 regarding discrimination is a protected act, but by this stage the claimant had taken the decision to resign, and shortly afterwards she did resign. The grievance was raised in anticipation of these proceedings.[286]With reference to issue 11.2, namely, if there was a protected act (which for the avoidance of doubt the Tribunal found the grievance only amounted to a protected act sent to the respondent after victimisation allegations 11.2.1 to 11.2.6) did the respondent carry out any of the treatment set out below because of the act, the Tribunal found that it did not. The Tribunal repeats its findings 88 of 91 above in relation to the victimisation allegations 11.2.1 to 11.2.6, and in the alternative, concluding there was no causal link with the alleged victimisation.[287]With reference to alleged Victimisation 7 - Victimisation by constructive dismissal, the Tribunal repeats its findings in relation to the constructive dismissal that the respondent was not in breach of contract.[288]With reference to issue 11.3, namely, does the treatment listed between paragraphs 11.2.1 and 11.2.7 amount to a “detriment” it is notable the claimant did not cross-examine any of the respondent’s witnesses on causation and there was no attempt by her to link the alleged protected act with the alleged acts of victimisation.[289]The claimant’s victimisation claims are dismissed.[290]There is no requirement for the Tribunal to deal with any of the agreed issues on remedy that were to be dealt with at liability stage given the findings above. Had the Tribunal found in the claimant’s favour on any of her claims, it would have concluded the employment relationship would have come to an end when at the effective date of termination, given the employment relationship had deteriorated over time when it became clear to the claimant that had training was not going to be expedited by Clare Brown and she would need to become more experienced in the industrial antique machines before being “let loose” on repairs and maintenance which the claimant believed she was capable of because of her engineering qualification against a background of not having worked in the capacity of an employee for at least twenty years, if not twenty-five depending on the different versions of the claimant’s evidence. It is likely that any award for financial loss would have been limited to the effective date of termination with no potential for any future loss of earnings claim.[291]In conclusion:291.1 The claimant is given leave to amend her particulars of claim to include a detriment allegation as set out in para 3.1.3 of the agreed list of issues, to include “The Claimant was given a verbal warning from senior management for allegedly running machines without supervision on 7 June 2023.”291.2 The claim form was presented on 14 October 2023 and taking into early happened before 3 April 2023 have not been brought within the statutory limitation period of three months. There was no conduct extending over a period, and it is not just and equitable to extend time. The Tribunal does not have the jurisdiction to consider the complaints alleged to have happened before 3 April 2023 of age discrimination brought under sections 13 and 26 of Equality Act, sex, age, and race discrimination brought under section 26 of the Equality Act 2010 and victimisation brought under section 27 of the Equality Act 2010. The complaints are dismissed. 89 of 91 291.3. The claimant was not victimised under section 27 of the Equality Act 2010 and the claims of victimisation are dismissed. 291.4 The claimant’s resignation was not a dismissal under section 95(1) of the Employment Rights Act 1996 as amended, her claim for unfair dismissal brought under section 98 is not well-founded and the dismissal was not unfair under section 103A and is dismissed. 291.5 The claimant was not subjected to detriments by the respondent done on the ground that she had made a protected disclosure, her claims of detriment brought under section 47B of the Employment Rights Act 1996 as amended are not wellfounded and is dismissed. 291.6 The respondent was not in breach of contract and the claimant’s claim of unfair constructive dismissal is not well founded and is dismissed. 291.7 The claimant resigned and she was not constructively dismissed. The claimant was not entitled to be paid notice, and her claim for wrongful dismissal (notice pay) is not well-founded and is dismissed.
HEARING
[1]This is a cost hearing following promulgation of the reserved judgment on liability[2]The Tribunal heard oral evidence from the claimant and considered the documentation set out within a 381-page agreed Costs Hearing Bundle and the claimant’s statement of means dated 26 June 2025, together with written and oral submissions including Skeleton Arguments provided by both parties on the respondent’s cost application made under Rule 74 of the Employment Tribunal Procedure Rules 2024.[3]With reference to the claimant’s evidence the Tribunal accepted submissions made on the part of the respondent to the effect that the claimant remained a less than credible witness when she gave evidence as to means which contradicted the loss of earnings she had set out in the Schedule of Loss, and Mr Keith’s written submissions.[4]The respondent has made an application that the claimant is ordered to pay costs totalling £94,000 excluding VAT. The claimant has taken an exception to this application. The Tribunal has considered oral closing submissions of the parties and the references to case law submitted on behalf of both parties, for which it is grateful as the law relating to costs is clearly set out and not disputed. The Tribunal has reread the Reserved Judgment and Reasons in respect of liability, which forms the basis of its reasoning in respect of the issues raised by this cost application.[5]The grounds relied upon by the respondent are set out in the letter of 15 April 2025, paraphrased as follows; that the claimant had acted vexatiously, abusively, disruptively or otherwise unreasonably in the bringing of the proceedings, or part of it, or the way that the proceedings, or part of it, have been conducted (r74(2)(a)); and/or that the claims, or some of them, had no reasonable prospect of success (r74(2)(b)). In support of its contentions, the Respondent relies on:• dishonesty on the part of the claimant.• lack of prospects; and/or• failure to accept the R’s offer of settlement; and/or• the Claimant’s approach to preparation for the final hearing.[6]It is accepted by the claimant that she had sought legal advice at some stage during this litigation, and this is reflected in the claimant’s response to the respondent’s “Without Prejudice Save as to Costs” emails referred to below when she refers to adding the legal fees incurred to her schedule of loss. The litigation[7]The claimant resigned on the 7 June 2023 and on the 9 June 2023 the claimant rang Clare Smith of People Services (HR) and recorded the conversation covertly threatening to “kick hell for leather now. I’m gonna screw the pants and I am gonna go to the Guardian and the Daily Mail.” The effective date of termination was 7 June 2023. The claimant, who was aware of the statutory time limits entered into ACAS early conciliation on the 3 July 2023, the certificate is dated 14 August 2023 and the claim form presented on the 14 August 2023.[8]Two preliminary hearings took place before the same employment judge on the 3 April and 7 May 2024. A draft List of issues was produced which reflected a number of substantial allegations, including claims which the claimant had fabricated as found by the Tribunal in the Reserved Judgment and Reasons sent to the parties on the 19 March 2025 (“the Reserved Judgment and Reasons”). The hearing was originally listed for 7 days starting on the 7 November 2024. Day 1 was a reading day, day 2 and 3 morning only for the claimant’s and her witnesses’ evidence, day 3 afternoon to day 5 morning (a total of 2 days) cross-examination of the respondent’s 5 or 6 witnesses and a bundle not exceeding 700 pages.[9]As reflected in the Reserved Judgment & Reasons there were a number of interlocutory matters that required resolution at the outset, not least, whether the claimant should be granted leave to amend her claim to include one of the issues set out in the Agreed List of Issues, and the impact on the respondent if leave was granted including witnesses and witness statements. The claimant’s application to amend should have been dealt with earlier, and this together with a discussion about case management generally and finalising the agreed list of issues took time way from the Tribunal reading and then hearing from the claimant until later in day 2, which cannot be attributed exclusively to the claimant’s conduct.[10]The bundle ran to 698-pages with an additional 75-page supplemental bundle and the claimant’s witness statement to 118-pages which included the fabricated allegations the claimant would have known were not true. In the original hearing allocation, the respondent intended to call 5 to 6 witnesses, and at the final hearing 9 witnesses provided witness statements and were cross-examined by the claimant, who was acting in the capacity as a litigant in person. The hearing allocation was not long enough for 9 witnesses to be cross-examined by a litigant in person. The claimant’s health[11]Given the adjustments made under the Equal Treatment Bench Book to ensure a fair hearing for the claimant which was not envisaged when the case was set down for a 7-day hearing, the unresolved preliminary issues and the number of the respondent’s witnesses, the hearing was unlikely to take 7-days which included deliberation over a period of approximately one and a half days to deal with a substantial number of allegations as set out in the final agreed List of Issues. In short, the Tribunal concluded that the extra 3 days allocated for the liability hearing was necessary in a complex case where the claimant cross-examined nine of the respondent’s witnesses, was given breaks as and when required especially when the claimant was upset, was given time to prepare her oral submissions and the uneven paying field between a respondent represented by counsel and the claimant acting in person was levelled as best as possible in the circumstances of this case. The Tribunal did not find the additional 3 days of hearing was exclusively the result of the claimant acting unreasonably when she presented her case at the liability hearing, and whilst the claimant could have given more straightforward answers without trying to avoid questions, and cross-examine without aggression by asking more relevant questions, her actions were that of litigant in person unable to view her claims objectively in the expectation that she would succeed and receive unrealistic damages in excess of half a million pounds.[12]It is notable that in the Schedule of Loss the claimant projected her loss of earnings from her YouTube business to be £23,100 and a total loss of earnings amounting to £131, 737.60 together with damages for post-traumatic stress disorder for which there was no medical evidence. The claimant has produced MED3’s and a psychiatric evaluation dated 11 March 2025 diagnosing the claimant with attention deficit hyperactivity disorder (“ADHD”) which was not before the Tribunal at the liability hearing and nor was there any indication from the claimant that she had suspected ADHD. As adjustments had already been put in place by the Tribunal at the liability hearing, which extended the hearing length, a formal ADHD diagnosis would have made no difference to the outcome. The medical evidence makes no mention of PTSD, and it casts no light on whether the claimant when fabricating allegations in these proceedings, covertly recoding meetings before destroying the evidence when attempting to build up a case against the respondent, could be in some way linked to the ADHD.[13]The medical evidence produced by the claimant in the bundle does not assist her. Taken at its highest, the medical evidence may provide an explanation for the claimant’s behaviour during the liability hearing including when questions required repetition and/or to be rephrased when put to the claimant on cross-examination and when the claimant interjected witnesses giving answers to questions put to them by her, sometimes in an aggressive manner. This case was and has never been about how the claimant behaved at the final hearing, and the Tribunal understands how difficult it can be for a litigant in person to present their case and cross-examine witnesses, especially nine. As recorded in the Reserved Judgment and Reasons, the claimant was found to have fabricated evidence, and she made a number of serious allegations that impacted on those she had worked with at the respondent’s premises. The ADHD diagnosis does not explain this away. Contrary to Mr Keith’s submissions the claimant was not diagnosed with autism.[14]Mr Keith submitted that the Tribunal “recognised the claimant's health to a certain extent” and continued to give evidence about what had transpired during the claimant’s employment when she had a “panic attack” which was not before the Tribunal at the liability hearing, and nor was it relevant given the claimant had not raised any allegations regarding a protected characteristic of panic attacks/ADHD/autism or depression. There was no satisfactory evidence that the claimant was “deeply unwell” either when she fabricated a number of allegations and/or when she gave evidence and conducted the liability hearing, to the contrary, the claimant was able to take part in the litigation in full and throughout she took an active part not only in the preparation but also when making applications, for example, introducing a new witness at the re-convened final hearing, extensive cross-examination of witnesses with the result that the hearing allocation was increased, and emailing the Tribunal with further information after both parties had made oral submissions. It is notable that the Tribunal file runs to 165 documents, a number of which were sent by the claimant in support of her case. The “Without Prejudice” offers of settlement.[15]It is undisputed that the respondent made an offer to settle the claims for £5,500 on the 21 May 2924 and £15,000 on the 9 July 2024. The 9 July 2024 offer is detailed and referred to the large number of allegations brought by the claimant, the lack of merit in the claims and a warning that the respondent will incur costs up to £50,000 and will seek a costs order against the claimant. The claimant rejected the first offer out of hand and did not respond to the second offer other than to inform the respondent that she would be increasing the amounts claimed in the Schedule of Loss and include details of her legal fees. The offer was sent to the claimant at 13.10 and the claimant responded within a period of under 4 hours at 16.46, the inference being that the claimant did not address her mind to any weaknesses in her case or deal with the respondent’s observations about the litigation, which should have chimed with the claimant given the fact that she was aware a number of her allegations had been fabricated.[16]The respondent did not send the claimant any further cost warning letters, and she would have understood her exposure to costs was approximately £50,000 and not the amounts set out in the respondent’s Schedule of Expenses totalling £94,000 which included substantial counsel’s fees and an hourly rate for solicitors/trainee solicitor of £340 for a partner, £220-230 for an associate and £150 for a trainee solicitor for 418.2 hours spent preparing the case for trial, attending trial and advising the respondent. The respondent’s solicitors wrote off £33115 by billing at a reduced rate i.e. a partner’s hourly rate was £665 (substantially greater than the County Court rate). Fabricated allegations and unreasonable behaviour[17]The claimant did not enter into any meaningful dialogue in an attempt to settle her claim, and she chose to take the risk of a costs order being made against her, pressing on making untrue allegations which in the words of Mr McPhail when referring to her colleagues “ in the event that claimant’s s claims against them were upheld, the consequences for them personally were bound to be extremely serious.” The Tribunal agreed. A number of the fabricated complaints were very serious indeed, particularly the offensive comment attributed to Rex Ashton, as reflected in the Reserved Judgment and Reasons in various paragraphs including paragraph 19 referred to by Mr McPhail. The claimant set out fabricated allegations in her pleadings and witness statement, and she continued to make them during oral submissions when the slur against Rex Ashton of “sexual violence” and the claimant being “extremely violated” was left hanging in the public hearing, new allegations raised for the first time by the claimant, who had not cross-examined on this point. At paragraph 22 the Tribunal found the claimant to have been an inaccurate historian as a direct result of her dishonesty. The claimant’s behaviour was vexatious, abusive, disruptive and unreasonable with regards to the fabricated allegations and the way that the proceedings, were conducted by her, and so the Tribunal found. The allegations that needed to be considered at trial.[18]As reflected in the Reserved Judgment and Reasons the Tribunal found the claimant built up her case by relying on evidence intended to mislead the Tribunal (for example, paragraphs 57, 58, 67, 85 and so on). The medical evidence produced at this costs hearing does not assist the claimant in explaining her untrustworthiness, nevertheless there were a number of allegations that required evidence to be explored at a final hearing. The Tribunal has in mind the disclosures relating to health and safety such as the difference between gloves and heavy duty gloves which could have been a misunderstanding, and the disclosure made in relation to the 18 January 2023 near miss incident where there appeared to be a difference of view and the there was a real issue as to causation given Clare Brown had avoided the claimant as found by the Tribunal. It was right and proper that the claimant’s whistleblowing complaints were considered as set out in the list of issues, including the first two alleged detriments and the automatic unfair constructive dismissal for making a protected disclosure. The Tribunal disagrees with Mr Keith’s analysis that the whistleblowing claim was the “main plank” in the claimant’s case. The claimant made a number of serious allegations as set out in the lengthy agreed List of Issues.[19]The Tribunal found the claimant had made one protected disclosure on the 24 January 2023 and on the balance of probabilities found causation had not been made out. It is notable that the relationship between the claimant and Clare Brown had irretrievably broken down, Clare Brown did not want to meet up with the claimant without another person being present and it is not inconceivable that had the evidence before the Tribunal been different, the claimant who was aware she was not being supported by her manager, could have established the way she was treated by Clare Brown amounted to a detriment and it was done on the grounds that the claimant had made a protected disclosure. In short, the evidence could have gone the other way for the respondent, and this was clearly an issue that needed to be explored at the final hearing, including whether Clare Brown and members of the human recourses department behaved in such a way that was calculated or likely to destroy or seriously damage the implied term of trust and confidence. Had the evidence gone in the claimant’s favour (which it did not for a myriad of reasons) and had the Tribunal found Clare Brown’s behaviour breached the implied term, the claims of detriment and constructive unfair dismissal may well have succeeded.[20]Paragraphs 102 and 103 in the Reserved Judgment and Reasons also refers to the undisputed evidence of the deteriorating relationship, and the Tribunal took the view that it was right and proper for this issue to be explored at a liability hearing.[21]The same point applies to Clare Brown mentioning to the claimant how she felt perimenopausal when the words were used by her, and this was an issue to be explored in relation to the section 26 harassment relating to sex claim 8.2.1(a) to (d) and age 9.2.1(b), (c), (d) and (e). It was right and proper that this allegation proceeded to a final hearing whereupon the Tribunal could consider all of the evidence, any credibility issues and taking into account the factual matrix, decide on the balance of probabilities whether Clare Brown’s conduct had the proscribed effect.[22]The claimant undeniably embellished and exaggerated her claims, and the Tribunal recognises that this can be a feature in litigation, especially for litigants in persons who cannot always objectively understand when their claims move from the reality to being fanciful. The claimant’s fabricated claims, as recorded above, can be distinguished from exaggerations and confused interpretations to an intentional fiction designed to advance the litigation and persuade the Tribunal, through a false construct of the evidence, that she was subjected to serious acts of discrimination by individual employees.[23]The Tribunal does not intend to set out all the paragraphs in the Reserved Judgment and Reasons it has relied on as a basis of making this costs order. Mr McPhail has set this information out a number of the paragraphs, but this is not an exhaustive list, for example, the claimant allegedly destroying covert recordings and yet setting out what appeared to be a transcript of the 27 February 2023 Meeting (paragraph 18) allegedly from memory despite the medical reports produced for this costs hearing to the effect that the claimant “mental health challenges” has impacted on memory, ability to read and absorb information” – Report dated 11 Match 2025. The claimant’s means[24]The Tribunal heard evidence from the claimant, which it found to be less than credible. On the face of her evidence, it appears she has minimum income coming in, lives with her son in a Bristol flat, supported by her husband who pays rent and is a joint owner of the matrimonial home in Stockport which has substantial equity in it, sufficient to cover this costs order. In short, the claimant’s evidence is that she no longer lives in the matrimonial home, however, she was unable to explain whether she was estranged from her husband or not. The Tribunal found the claimant’s answers on cross-examination and to questions put to her by the panel, evasive. For example, when asked by Mr McPhail “do you have plans to do fresh work” the claimant answered “I don’t have to answer that. I have no intention of doing anything – not going back to university, YouTube or anything…” Later on, in re-examination the claimant explained that her YouTube business “helped contribute to university costs” and by 2026 she would no longer be supported by her husband, who was a self-employed contractor, and she would be homeless despite having equity in the matrimonial home. When asked by the panel about her husband’s income the claimant denied knowledge of his company describing herself as “just a housewife” and it appears, from the claimant’s oral evidence unsupported by any documentation, that for the last 15-20 years the claimant’s husband has been working as a self-employed contractor continuously save for a period of 6 weeks “a couple of years ago.” The claimant has a share in her husband’s business which yields profits before tax of over £100,000. The claimant’s annual dividend is £15,800.00.[25]The Tribunal is satisfied that on the face of the claimant’s evidence, she is not living in the matrimonial home, she is separated from her husband, the claimant’s husband is an engineer running his own business working as a sub-contractor who can afford to keep two properties going, the claimant is earning some income, although the precise amounts cannot be established. The claimant has paid university fees with a view to training to be a doctor, and it is apparent from the medical report dated 11 March 2025 that she had a number of “Education Related Problems” such as “forgetfulness” and reasonable adjustments were suggested including a short break during examinations.[26]The claimant is a chemical process engineer with an engineering degree who had worked in a refinery during a student placement of 8 weeks and held the position of subject group officer before she took time out to look after her family. Mr McPhail submitted that there was an “apparent mismatch” between the evidence given by the claimant at these costs hearing and what she set out in her schedule of loss, in which she was pursuing losses from her own business pursuits of £131,737. In oral evidence on cross-examination the claimant confirmed had she not joined the respondent and “carried on what I was doing I’d have earned £131K…[a] fair and reasonable estimate based on what I was earning at that time.” The Tribunal took the view that the claimant could therefore earn these amounts in the future.[27]The Tribunal is satisfied that the claimant has the means to meet a costs order, even if she does not sell the matrimonial home and draw equity from the sale price, at some stage in the future it is likely she will have sufficient income based on her own evidence including her share in the consultancy business, the claimant’s own business which generates an ongoing income and could be built up, and possible future employment either in the claimant’s capacity as an engineer or if she requalifies as a doctor, which was the claimant’s aim when she paid fees to Bristol University. Law[28]Rule 74. When a costs order or a preparation time order may or must be made[29](1) The Tribunal may make a costs order or a preparation time order (as appropriate) on its own initiative or on the application of a party or, in respect of a costs order under rule 73(1)(b), a witness who has attended or has been ordered to attend to give oral evidence at a hearing.(2) The Tribunal must consider making a costs order or a preparation time order where it considers that— (a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings, or part of it, or the way that the proceedings, or part of it, have been conducted, (b) any claim, response or reply had no reasonable prospect of success, or (c) … 76. The amount of a costs order[30](1) A costs order may order the paying party to pay—[31](a) the receiving party a specified amount, not exceeding £20,000, in respect of the costs of the receiving party.[32](b) the receiving party the whole or a specified part of the costs of the receiving party, with the amount to be paid being determined—33. i. in England and Wales, by way of detailed assessment carried out either by a county court in accordance with the Civil Procedure Rules 1998, or by the Tribunal applying the same principles.34. ii. in Scotland, by way of taxation carried out either by the auditor of court in accordance with the Act of Sederunt (Taxation of Judicial Expenses Rules) 2019, or by the Tribunal applying the same principles.[35](c) another party or a witness, as appropriate, a specified amount in respect of necessary and reasonably incurred expenses for the purpose of, or in connection with, an individual’s attendance as a witness at a hearing.[36](d) an amount agreed between the paying party and the receiving party in respect of the receiving party’s costs.[37](2) Where the costs order includes an amount in respect of fees charged by a lay representative, for the purposes of the calculation of the order, the hourly rate applicable for the fees of the lay representative must not exceed the rate under rule 77(2) (the amount of a preparation time order).[38](3) A costs order under sub-paragraphs (b) to (d) of paragraph (1) may exceed £20,000. Case law and oral submissions referred to by Mr Keith on behalf of the claimant.[39]In Gee v Shell UK Ltd [2003] IRLR 82, the Court of Appeal reiterated that Orders for costs in Employment Tribunals remain the exception, rather than the rule. In the case of Salinas v Bear Stearns International Holdings Inc [2005] ICR 1117, there was a view that Costs Orders were not made in the vast majority of Tribunal cases because of the high hurdle that had to be overcome for Costs Orders to be made.[40]The claimant was a litigant in person who had taken legal advice. consulted with a firm of solicitors at the commencement of her claim. In AQ Ltd v Holden [2012] IRLR 648, the Employment Appeal Tribunal held that, while the threshold tests remain the same whether a litigant is professionally represented or not, a Tribunal should not judge a litigant in person by the standards of a professional representative.[41]It is accepted that the legal test for an award of costs is the same, whatever the claim. However, the Employment Tribunal in the case of Madu v Loughborough College [2025] EAT 52 noted, in many discrimination claims, there will be features that require specialist consideration when that legal test is applied. In that case, the Employment Appeal Tribunal held that a Tribunal had erred when ordering Mr Madu, who had been unrepresented at the outset of his claim, to pay £20,000 in costs. The Tribunal had not taken account of the difficulties faced by an unrepresented claimant who is trying to determine whether a discrimination claim has no reasonable prospects of success. Mr Keith referred to Saka v Fitzroy Robinson Ltd UKEAT/0241/00. In Saka, the Employment Appeal Tribunal referred to the “very real difficulties which face a Claimant in a discrimination claim noting that a lack of overt evidence may, and often does, make it very difficult for a Claimant to know whether they have real prospects of success until the Respondents explanation for the conduct which is the subject of the claim is given and tested.[42]In Madu, the Employment Appeal Tribunal drew a parallel between cost orders in discrimination claims and the approach of the House of Lords in the case of Anwu v Southbank Students Union [2001] IRLR 305, to the strike out of discrimination claims. The House of Lords held that discrimination claims should not be struck out as an abuse of process for having no reasonable prospects of success, except in the plainest and most obvious cases. It was a matter of public interest that Tribunals should examine the merits and particular facts of discrimination claims. The House of Lords noted that “discrimination cases are generally fact-sensitive, and their proper determination is always vital in our pluralistic society. In this field, perhaps more than any other, the bias in favour of a claim being examined on the merits or demerits of its particular facts is a matter of high public interest.” The Tribunal has revisited this case below and highlighted as above. Case law and oral submissions referred to by Mr McPhail on behalf of the Respondent[43]Capital falls to be taken into account- Sheilds Automotive v Greig UKEATS/0024/10/BI –para 47), a Tribunal may have a regard to the paying party’s ability to pay but is not required to do so, - para 19 and 46, and “assessing a person’s ability to pay involves considering their whole means. Capital is a highly relevant aspect of anyone’s means…a person’s capital will often by represented by property…which are not accessible as cash but that is not to say it should be ignored.”[44]The ET is not limited to considering the current state of affairs but may consider what a party could realistically pay over a reasonable period (Vaughan v London Borough of Lewisham (No 2) [2013] IRLR 713, UKEAT/0533/12/SM, see para 26. In addition, Vaughan held that it was not wrong in principle to make costs order even though no deposit order had been made, or the appellant was not could in her present financial circumstances afford to pay where the Tribunal formed a view, might be able to meet it in due course.[45]Arrowsmith v Nottingham Trent University - UKEAT/477/10 in which the EAT held that while a lie on its own would not necessarily be sufficient to find an award of costs, it was for the Tribunal to examine the context and the nature, gravity and effect of the lie in determining the unreasonableness of the alleged conduct. The Tribunal found that Ms Jenkins, as in the case of Ms Arrowsmith, had made a case “materially dependent on advancing assertions that were untrue…” Daleside Nursing v Mathew UKEAT/0519/08/RN, para 10 -dishonesty is potential unreasonable conduct and it does not necessarily in every case lead to a costs order.[46]Mr G Howman Appellant V The Queen Elizabeth Hospital Kings Lynn - UKEAT/0509/12/JOJ explained the difference between costs assessed on a standard basis and indemnity basis, an issue not before the Tribunal in the case of Mrs Jenkins who has been ordered to pay a contribution to the respondent’s costs. At para. 15 reference was made to it being open to an Employment Tribunal to take into account capital as well as income, and para 16 the EAT questioned whether it was appropriate to make a costs order that may result in the family home being sold which affected Mr Howman and two dependent children. The Tribunal had this in mind when it considered the position of Mrs Jenkins, who was separated from her husband living in rented accommodation with a substantial share in the equity of the former matrimonial home, a four bedroomed semi-detached property in Stockport, conservatively valued at £470,285 with a mortgage of £264, 205. The claimant has no dependent children, and lives with one of her children in rented accommodation based in Bristol. It is possible the capital of £19,000 could be raised through income over a period of time, and if the house is sold the claimant would still be left with a substantial amount of money. The Tribunal was satisfied that the extent of the claimant’s unreasonable conduct was such that it would be appropriate to make an award for costs taking into account the Tribunal’s decision to order the claimant to pay a contribution towards the respondent’s costs that fell far below the original costs estimate of £50,000 and the final costs incurred of £94,000 that does not appear to include VAT.[47]Mr McPhail submitted that the claimant has the benefit of financial assistance from her husband. It is open to the Tribunal to take his means into account -Sud v Ealing UKEAT/0482/11/LA, para 34. In Sud the Tribunal notes that whilst the claimant’s finances were limited there was capital available to her in the form of her home. Ms Sud, unlike Mrs Jenkins, had succeeded on one part of her claim.[48]The Tribunal concluded the Mrs Jenkins should not be ordered to pay costs on a full liability basis given its observations above, and it was not appropriate for it to adopt a “pound-for-pound mechanistic calculation. What they had to do was come to an overall conclusion, having regard to their overall finding of unreasonable conduct in the context of the case.” In the case of Mrs Jenkins, the Tribunal has carried out a similar exercise by taking a broad brush to the factual matrix as found by it in the Reserved Judgment and Reasons and the evidence of means before it today, concluding it was not in the interests of justice for a detailed assessment to take place, thus incurring further costs for both parties. Taking into account the complete picture as touched upon above, the Tribunal was satisfied that the proper exercise of its discretionary power was to order the figure of £19,000 having regard to the claimant’s unreasonable behaviour, the impact of her fabricated allegations on this litigation and her ability to pay.[49]Ms M Kapoor V The Governing Body Of Barnhill Community High School – UKEAT/0352/13/RN – in this case the claimant had put forward false evidence and the EAT held that the Tribunal should have considered all the circumstances of the case, including the procedural history and the extent to which the claimant’s lies had made material impact on its actual findings.” In that case the claimant also had equity in her house and a mortgage. A number of references was made by the EAT to case law, which the Tribunal considered before concluding that Mrs Jenkins’ fabricated evidence was grave and its effect to extend these proceedings by a number of days and the work carried out by the respondent’s lawyers in defending the unmeritorious fabricated claims. In exercising its discretion to order costs in the case of Mrs Jankins, the Tribunal looked at the whole picture as set out in the Reserved Judgment and Reasons before satisfying itself that there had been unreasonable conduct on the part of the claimant, not only in bringing proceedings for unlawful acts of discrimination she was aware had not taken place, but also in the unreasonable manner she conducted the litigation including a total failure to take heed of the respondent’s costs warnings (when she knew a number of her claims had no basis in reality), ignore settlement attempts and run the risk of a substantial costs order if her claims were to fail. As indicated earlier, in assessing the amount of contribution towards costs at £19,000 the Tribunal has used a broad brush, and it is not required to dissect the respondent’s costs to establish what costs were incurred by the acts of unreasonable conduct. This would have been an impossible task given the observations above concerning the whistleblowing claims and concessions made by Clare Brown regarding the breakdown of her relationship with the claimant. For the avoidance of doubt, even taking into account that it was right and proper for some of the claimant’s claims to proceed to a final hearing when looking at the whole picture, there remains the fact that there was unreasonable conduct by the claimant that adversely affected this litigation and resulted in costs being incurred by the respondent, factors resulting in the Tribunal exercising its discretion in favour of the respondent, albeit for a considerable lower figure of costs than that it was seeking. Dowding v The Character Group plc - [2024] EAT153 in which the Tribunal concluded that the claimant’s conduct in refusing a settlement was unreasonable and guidance was given by the EAT on the Tribunal’s power to direct a detailed assessment on an indemnity basis Conclusion referring to the above and applying legal principles[50]The Tribunal’s starting point is that costs do not automatically follow the event and an award for costs does not automatically follow in the event of dishonesty by a party. In arriving at the figure of £19,000 the Tribunal has attempted to take a broad-brush view of the costs and allocate this sum to the additional work carried out by the respondent as a result of the claimant’s unreasonable conduct set out above and in the Reserved Judgment and Reasons. The purpose of the award is compensatory and not punitive; Lodwick v London Borough of Southward [2004] ICR 884 and the judgment of Underhill J in Barnsley Metropolitan borough Council v Yerrakalva [2011] EWCA Civ 1255.[51]With reference to the EAT decision in Mr M Willis V 1) GWB Harthills LLP 2) Miss Hester Russell 3) Mrs Elizabeth Lord - [2025] EAT 79 HHJ Taylor set out at para.5 the application of Rule 74 and 82 of the 2024 Rules by splitting them into three stages dealt with by the Tribunal in the case brought by Mrs Jenkins as follows.[52]Stage 1: is there conduct that could warrant making a costs order (“threshold conduct”). For the reasons set out above, the Tribunal is satisfied that the claimant was guilty of unreasonable conduct that could merit the making of a costs order.[53]Stage 2: if so, should an award of costs be made (“the discretionary decision”) – the Employment Tribunal may have regard to ability to pay at this stage. In the case of Mrs Jenkins the Tribunal had regard to her ability to pay at both stage 2 and 3. At stage 2 HHJ Taylor made reference to the following; “[a] wide range of factors can be relevant, such as the party’s subjective belief in the merits of a complaint or defence, the type of complaint and whether the party had the benefit of legal advice…An Employment Tribunal might conclude where a party is guilty of threshold conduct, and there are no other factors pointing against making a costs order, that a party’s total inability to pay is such that no costs order should be made. In other cases, the Employment Tribunal might decide it is appropriate to make a costs order but take account of the party’s ability to pay in limiting the award when making the Stage 3 quantum decision. “[54]It is clear from the Reserved Judgment and Reasons and the facts set out above, that the claimant was aware several serious allegations were fabricated and had no basis in reality. The claimant was legally represented at the time, and no doubt she had access to legal advice at any stage throughout the proceedings had she chosen to do so. With or without the benefit of legal advice, the claimant was cognisant of the fact that a number of her allegations were fabricated and yet she blithely decided to continue with all of her claims, as recorded in the list of issues, to trial, including on the first day of the hearing making an application to amend to include a complaint concerning an alleged verbal warning when none had been given.[55]The Tribunal did not accept Mr Keith’s suggestion that the claimant was in a similar position to Mr Madu (see Madu above) as she was an unrepresented claimant who had difficulties when trying to determine whether a discrimination claim had a reasonable prospect of success. The claimant is a graduate, and at the time of these proceedings had started another degree course at Bristol University training to be a doctor, and she was fully aware of what allegations could have had a basis in reality, for example, the whistleblowing detriment, and those allegations she had completely fabricated with no thought of how her actions would affect others during a public hearing, for example, Rex Ashton.[56]Mr Keith referred the Tribunal to Saka (above). The Employment Appeal Tribunal referred to the “very real difficulties which face a Claimant in a discrimination claim noting that a lack of overt evidence may, and often does, make it very difficult for a Claimant to know whether they have real prospects of success until the Respondents explanation for the conduct which is the subject of the claim is given and tested” submitting a costs order should on be made “ in a very rare and even an exceptional case.” The Tribunal did not agree, preferring to rely on the terminology used in the statute concluding the claimant was fully aware several of her key claims were fabricated and she had been building up her case with the stated intention of kicking “hell for leather now. I’m gonna screw the pants” of the respondent in the expectation of being awarded over half a million pounds as opposed to the £15,000 she was offered as a commercial settlement having been told in no uncertain terms there were problems with her case, and the respondent was incurring substantial legal costs of over £50,000.[57]Mr Keith referred to the EAT decision in Iyieke v Bearing Point Ltd [2025]. The Tribunal considered all the circumstances of this case including the position when the dust of battle had settled and formed a view that without the benefit of hindsight, the claimant ought to have appreciated that the majority of the discrimination claims had no reasonable prospect of success. She was not in a position to appreciate this in respect of the first two protected disclosures, albeit there were issues with her claims, including her failing to report the near miss. Mr Keith submitted that the claimant, as a litigant in person, was not in a position to make a decision as to whether or not she had a reasonable prospect of success “in the consideration of extremely complicated law and taking into consideration her own significant health issues.” The Tribunal did not agree. The claimant had instructed lawyers and taken legal advice, her health issues at the time were panic attacks which did not prevent the claimant from conducting her case with knowledge and foresight, and as evidenced by the litigation history she was in a position to make a number of applications, argue the point at hearings and object to the way the respondent ran its defence. The problem for the claimant is that that she was fully aware many of her allegations had no factual basis, and as recorded by the Tribunal above, the medical evidence before the Tribunal does not explain this away.[58]Mr Keith submitted, by reference to Anwu and Madu above, that discrimination claims should not be struck out as abuse of process “except in the plainest and most obvious cases… discrimination cases are generally fact-sensitive, and their proper determination is always vital in our pluralistic society. In this field, perhaps more than any other, the bias in favour of a claim being examined on the merits or demerits of its particular facts is a matter of high public interest” and costs order should not be made. Mr Keith argued that claimants may fear “a Tribunal being too readily prepared to award costs in cases in which it is difficult to form a clear view of the merits because, while there appears to be some supporting evidence, the outcome is likely to turn on witness evidence given at the Final Hearing.” On this argument there could never be a costs order made in a discrimination case in the anticipation that claimants would be discouraged from taking action and/or continuing to trial. There may be occasions when this is the case, hence cost warning letters, which were ignored by the claimant, who was not discouraged by the prospect of being ordered to pay costs of £50,000.[59]Costs do not follow the event; however, statute provides that a costs order may be made where there has been unreasonable conduct, and that includes in discrimination cases. The claimant, Mrs Jenkins, acted unreasonably when she issued these proceedings making untrue allegations and continued to advance fabricated claims to the end, including during oral submissions after she had been given a break to think about what she wanted to say. The respondent is a charity who has incurred a substantial amount of costs, and it set out in some detail why the claimant was likely to lose her case, which she did after behaving unreasonable when conducting it including ignoring the cost warning letter when she thanked the respondent for reminding her that costs could be recovered so that her Schedule of Loss could be increased to include the legal costs she had incurred. The claimant was fully aware that both parties were at risk of costs and continued with the litigation, taking that risk when the respondent had no option but to remain a party in the litigation in the knowledge that a number of the claimant’s serious allegations were not true. This is a case where it is just and equitable for the Tribunal to use its discretion and order the claimant to pay costs, who reminded itself that a costs order was not a punishment against the party who had been acting unreasonably.[60]The next stage to be considered is stage 3. Stage 3: what amount of costs should be awarded[61]The Tribunal refers to its findings above on the broad-brush calculation of the £19,000 costs order.[62]HHJ Taylor suggested that at Stage 3 having dealt with stages 1 and 2 the Tribunal should ask itself: if so, what amount of costs should be awarded (“the quantum decision”) and it may also have regard to ability to pay at this stage. As set out above, the Tribunal took into account the claimant’s ability to pay, satisfied that the award of £19,000 can be met by the claimant at some stage in the future, for example, if a loan is taken out against the former matrimonial home or it is sold, and/or if the claimant uses her degree qualification and finds alternative employment and/or builds up her business as she had envisaged when remedy calculations were produced and a substantial loss of earnings claimed.[63]Mr Keith confirmed the claimant was a full-time student who was seeking part-time work at Bristol University, with a “passive YouTube income” and £1000 per month from her husband’s business. This was not the evidence given by the claimant on cross-examination who indicated she had dropped out of university, her husband contract was coming to an end so there would be no further monies, she was borrowing money from her husband and would have to reimburse him, her husband would no longer be able to contribute towards her rent and as recorded above, the claimant had no intention of “doing anything.” The Tribunal found the claimant’s evidence was not credible and it is satisfied that at some time in the future, she will be able to pay the costs order, including the fact that according to Mr Keith, the claimant is “permanently separated” from her husband. The claimant lives in Bristol and is no longer in the former matrimonial home, there are no dependent children, and the house is a capital asset that can be drawn on “even if not immediately or easily realisable”: Shields Automotive Ltd (above). It is not unusual for a former matrimonial home to be sold, and the proceeds distributed when a couple are “permanently separated” and the Tribunal cannot see how the claimant’s husband will be adversely affected given he jointly holds the asset and is entitled to his share of it. It may also be possible for the claimant to agree some form of equity release on the former matrimonial home, and it a matter for her how she proceeds in the future with satisfying the costs order.[64]The Tribunal accepts the claimant has a limited ability to pay at the present moment, but this is likely to change in the future for the reasons already stated: Vaughan v London Borough of Lewisham (No 2) [2013] IRLR 713. The claimant has every reason to be optimistic about her future, especially if she finishes her medical degree and/or builds up her existing business and/or builds on her engineering degree. The fact the claimant will have difficulty paying the whole £19,000 in the immediate future does not require the Tribunal to either make no award of costs or to assess a sum confined to an amount that the party could actually pay: Arrowsmith (above).[65]In conclusion, the Tribunal recognises it is rare for costs orders to be made in this jurisdiction and that it has a wide discretion to award costs where it considers there has been unreasonable conduct at any stage during the proceedings, and where a claim had no reasonable prospect of success from its inception. The Tribunal found the claimant had acted unreasonably and the majority of her claims had no reasonable prospect of success from inception. Accordingly, the claimant is ordered to pay to the respondent a contribution towards its legal costs in the sum of £19,000. Approved by: