Mrs P Olumefun v CareTech Community Services Ltd: 2410906/2023

EMPLOYMENT TRIBUNALS

Case No 2410906/2023

Between

Mrs P OlumefunClaimant

CareTech Community Services LtdRespondent

Before

Employment Judge Kenward

Mr J Olumefun (husband (instructed by Claimant)) for claimant

Date 2 May 2025

REASONS

JUDGMENT and oral reasons having been given at the hearing on 2 May 2025, and written reasons having been requested by the Claimant at the hearing and in writing on 16 May 2025, written reasons are now provided, as set out below. Judgment

[1]The Judgment of the Tribunal was as set out below.(1) The Claimant’s complaint of unauthorised deductions from wages for the period 10 June 2023 to 23 April 2024, contrary to Employment Rights Act 1996 sections 13 and 23, is well-founded and succeeds. The Respondent is ordered to pay the Claimant the agreed sum of £12,967.49.

(2) The Claimant’s complaint of race discrimination contrary to Equality Act 2010 section 13, is not well-founded and is dismissed .

(3) The Claimant’s complaint of victimisation contrary to Equality Act 2010 section 27, is not well-founded and is dismissed. Introduction - 1 -

[2]These proceedings arise out of a developing dispute over the Claimant’s contractual hours as a Support Worker, which culminated in an incident on 9 June 2023 when the Claimant attended to work a shift and there was a disagreement over whether she was due to work the shift which resulted in the Respondent calling the Police. The Tribunal has had to consider whether the treatment of the Claimant on this day amounted to race discrimination through giving her shift to someone else and through calling the Police. The Claimant had made complaints about her treatment in e-mails both before and after 9 June 2023 and the Tribunal has also had to consider whether the way in which she was treated by calling the Police on 9 June 2023 and subsequently pursuing disciplinary proceedings which resulted in a final written warning amounted to unlawfully victimising her for having made these complaints.

[3]The Claimant also claims that, although she was not required to attend work for the period between 10 June 2023 to 23 April 2024, she was contractually entitled to be paid her wages for this period. Proceedings

[4]In order to be able to commence proceedings, on 7 August 2023 the Claimant complied with the requirement to notify ACAS of her prospective Claim for the purposes of early conciliation and an early conciliation certificate was issued on 18 September 2023. The ET1 Form of Claim was received by the Tribunal on 11 October 2023.

[5]At section 8.1 of the ET1 Form of Claim, the Claimant ticked the applicable boxes in respect of bringing complaints as to arrears of pay and other payments. She did not tick the box in respect of bringing a complaint of discrimination or any of the separate boxes to indicate the protected characteristic involved in any discrimination complaint.

[6]At section 8.2 of the ET1 Form of Claim, the Claimant set out the details of her Claim. She did refer to there being a pattern of bullying, harassment and discrimination and stated that this had been “since I indicated my return to work after a period of maternity”. There was no reference to race discrimination.

[7]On 25 October 2023, the Claimant wrote to the Tribunal in the terms set out below. “I would like to request re-labelling of my claim”. “I have described discrimination related to my Maternity, Sex, and Race Discrimination and would like to clarify that my claims include the following although I did not tick the boxes: I was discriminated against on the grounds of:• race

• pregnancy or maternity - 2 -

• Sex”.

[8]No detail of the discrimination complaints was given in this letter.

[9]On 28 November 2023 the Claimant wrote to the Tribunal stating that “I would like to request the attached document be added to my claim”.

[10]The document was a detailed narrative setting out the Claimant’s version of events regarding her treatment from October 2022 when she was due to return from maternity leave until the point when notification was given to ACAS. The document did not set out the discrimination complaints which the Claimant wished to pursue. The only references to discrimination were that:(1) the Claimant referred an e-mail sent to her manager, Lynn Black, after a telephone call on 19 May 2023, with the Claimant stating that the e-mail had indicated “how I felt bullied and discriminated against during her unplanned call to me”: and

(2) a reference to having declined to attend a meeting on 3 July 2023 with the reason being given by the Claimant that this was “due to the nature of previous meetings where I felt bullied, harassed, intimidated and discriminated against”.

[11]The case by this point in time had already been listed for a full hearing on 23 April 2024 with an estimate of two hours which would have been consistent with the proceedings being in respect of a complaint as to unpaid wages only. The Tribunal now responded to the Claimant’s correspondence by converting that hearing to a preliminary hearing on the basis that, at “the preliminary hearing, the Tribunal will seek to clarify the Claimant’s proposed complaints of discrimination” and “will then decide whether any of them require an amendment to the claim”. If it was decided that “an amendment is required, the Tribunal will decide whether or not permission to amend should be granted”. It was further stated that, if “permission is granted, the Tribunal will then clarify and list the issues that the Tribunal will have to decide”.

[12]The preliminary hearing took place before Employment Judge Slater on 23 April 2024. At this hearing, after identifying with the Claimant the complaints that she wished to bring, Employment Judge Slater dealt with an amendment application to include complaints of pregnancy / maternity discrimination, a victimisation complaint and complaints of direct race discrimination and harassment related to race. The Respondent had no objection to an application to amend to include complaints of victimisation which related to events in April 2024 and a complaint of unauthorised deductions after presentation of the Claim up until the date of the preliminary hearing. Although the letter of 25 October 2023 had referred to sex discrimination, the Claimant did not apply to add any complaint of sex discrimination.

[13]Employment Judge Slater refused the Claimant’s application to amend her Claim to include the complaint of pregnancy / maternity discrimination, the complaint of harassment related to race and the complaint of race discrimination relating to events on 20 May 2023. She allowed the amendment application so as to include a victimisation complaint about the - 3 - calling of the Police on 9 June 2023 and the direct race discrimination complaint in relation to events on 9 June 2023 but, in both cases, subject to the time limit issue being considered at the final hearing. As such, she made it plain that there were time limit issues in relation to some of the complaints added by amendment which would need to be considered at the final hearing.

[14]For these purposes, in relation to the complaints of direct race discrimination in relation to events on 9 June 2023, Employment Judge Slater directed that the relevant date of the amendment application for time limit purposes was 28 November 2023. In other words, the amendment application was made approximately 5½ months after the events which were being complained about as amounting to discrimination when the time limit would normally be three months.

[15]In relation to the victimisation complaint about the calling the Police on 9 June 2023, Employment Judge Slater directed that the relevant date of the amendment application for time limit purposes was 23 April 2024 (in other words, the date of the preliminary hearing). Thus, this complaint was effectively being made nearly 11 months after the events which were being complained about as amounting to victimisation (and in respect of which, again, the primary time limit would be three months).

[16]No time limit issue arises in respect of the other complaints of victimisation because the alleged acts of victimisation post-date the ET1 Form of Claim and had occurred shortly before the preliminary hearing on 23 April 2024.

[17]The Case Management Order of Employment Judge Slater accordingly included a List of Issues which set out the live complaints to be determined at a final hearing.

[18]As such, there were two complaints of direct race discrimination, namely:(1) on 9 June 2023, the Respondent giving a shift to someone else when the Claimant had been rostered to work; and

(2) on 9 June 2023, the Claimant being asked to present her right to work.

[19]The Case Management Order described the Claimant as identifying herself as being Black of African ethnic or national origins. The employee who was given the Claimant’s shift has been identified as Liz Orioye, who has been identified as being Black Nigerian. However, in the List of Issues, for the purposes of her complaint of direct race discrimination, the Claimant was not seeking to compare her treatment to that of a specifically identified actual comparator but was comparing her treatment to that of a hypothetical comparator.

[20]There were three complaints of victimisation (contrary to Equality Act 2010 section 27, namely:(1) calling the Police on 9 June 2023; - 4 -

(2) on or around 2 April 2024, starting disciplinary proceedings against the Claimant; and

(3) issuing the Claimant with a final written warning on 12 April 2024.

[21]The List of Issues identified the Claimant’s case as being that the treatment complained about as amounting to victimisation was because of her alleged protected act(s) in making “allegations that could reasonably be understood as being of unlawful discrimination”. For these purposes, the List of Issues identified that the Claimant was relying upon three protected acts, namely having made allegations that could reasonably be understood as being of unlawful discrimination:(1) in an e-mail sent on 19 May 2023 to a manager, Lynn Black;

(2) in an e-mail sent on 9 June 2023 to Trish Cashmore, the Respondent’s HR business partner; and

(3) in a meeting on 14 June 2023 with Trish Cashmore and Lynn Black.

[22]The above complaints of discrimination and victimisation were in addition to the complaint regarding the Respondent having allegedly made unauthorised deductions from the wages due to the Claimant for the period between 10 June 2023 and 23 April 2024.

[23]Following the preliminary hearing on 3 April 2024, the case had been listed for a five-day hearing to commence on 28 April 2025.

[24]The Claimant made a further application to amend her claim, on 17 March 2025, which was refused, with reasons given, by Employment Judge Slater on 4 April 2025, in part on the basis that the application appeared to be repeating the application to amend which had been made and refused at the preliminary hearing on 23 April 2024.

[25]At the start of the final hearing, the Respondent informed the Tribunal that the complaint of unauthorised deductions as to wages was conceded, subject to the outstanding wages either being agreed or assessed by the Tribunal in default of agreement. At the end of the hearing, before Judgment was given, the Tribunal was informed that the parties were in agreement that the sum which the Respondent should be ordered to pay the Claimant was the agreed sum of £12,967.49. Relevant law Time limits in discrimination cases

[26]In relation to discrimination complaints, section 123(1)(a) of the Equality Act 2010 provides that “a complaint … may not be brought after the end” of … “the period of 3 months starting with the date of the act to which the complaint - 5 - relates” or “such other period as the employment Tribunal thinks just and equitable”. Equality Act 2010 section 123(3)(a) provides that “conduct extending over a period is to be treated as done at the end of the period” and section 123(3)(b) provides that “failure to do something is to be treated as occurring when the person in question decided on it”.

[27]In Commissioner of Police of the Metropolis v Hendricks

[2003] ICR 530

, CA, the Court of Appeal gave guidance as to considering whether allegations of discrimination amounted to an act extending over a period (so that any time limit would run from the end of that period) set out below. “The concepts of policy, rule, practice, scheme or regime in the authorities were given as examples of when an act extends over a period. They should not be treated as a complete and constricting statement of the indicia of “an act extending over a period”. I agree with the observation made by Sedley LJ, in his decision on the paper application for permission to appeal, that the appeal tribunal allowed itself to be side-tracked by focusing on whether a “policy” could be discerned. Instead, the focus should be on the substance of the complaint that the commissioner was responsible for an ongoing situation or a continuing state of affairs in which female ethnic minority officers in the service were treated less favourably. The question is whether that is “an act extending over a period” as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed” (Mummery LJ at paragraph 52).

[28]In De Lacey v Wechseln Limited

[2021] IRLR 547

, EAT, it was held that a “last straw” constructive dismissal might amount to unlawful discrimination if some of the matters relied on, though not the last straw itself, were acts of discrimination. Where there is a range of matters that, taken together, amount to a constructive dismissal, some of which matters consist of discrimination and some of which do not, the question is whether the discriminatory matters sufficiently influenced the overall repudiatory breach so as to render the constructive dismissal discriminatory. In other words, it is a matter of degree whether discriminatory contributing factors render the constructive dismissal discriminatory. There could be cases in which the constructive dismissal was discriminatory, even though the last straw was not. A discrimination Claim arising out of a constructive dismissal might be timeous even if the discriminatory events were out of time. The Employment Appeal Tribunal explained that this was because time would run from the date of the dismissal, as set out below. “Second, in my judgment, it is clear that, in a discriminatory constructive dismissal, time runs for the claim from the date of the acceptance of the repudiatory breach, not from the date or dates of the discriminatory events, if earlier …. It follows that a discrimination claim arising out of a constructive dismissal may be in time even if the discriminatory events that render the dismissal discriminatory are themselves out of time. It follows in turn that the fact that the incidents in allegations 7 i and 11 v were out of time for the - 6 - purposes of a free-standing discrimination claim, or for a "discriminatory course of conduct" claim, does not mean that they should be disregarded for the purposes of a discriminatory constructive dismissal claim”.

[29]In Bexley Community Centre v Robertson

[2003] IRLR 434

, CA, the Court of Appeal provided the guidance set out below. “It is also of importance to note that the time limits are exercised strictly in employment and industrial cases. When tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse. A tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time. So, the exercise of discretion is the exception rather than the rule” (Auld LJ at paragraph 25).

[30]In relation to the above guidance, in Chief Constable of Lincolnshire v Caston

[2010] IRLR 327

, CA, Sedley LJ gave the further guidance set out below. “In particular, there is no principle of law which dictates how generously or sparingly the power to enlarge time is to be exercised …. and Auld LJ is not to be read as having said in Robertson that it either had or should. He was drawing attention to the fact that limitation is not at large: there are statutory time limits which will shut out an otherwise valid claim unless the claimant can displace them Thus, the burden of proof is on a Claimant to satisfy the Tribunal that any complaint was either made within the applicable time limit for doing so, or that it would be just and equitable to extend time” (paragraph 31).

[31]In Abertawe Bro Morgannwg University Local Health Board v Morgan

[2018] ICR 1194

, CA, the Court of Appeal dealt with the argument that, in the absence of an explanation from the Claimant as to the reasons for not bringing a Claim in time and an evidential basis for that explanation, the Employment Tribunal could not properly conclude that it was just and equitable to extend time. The argument was rejected, as set out below. “I cannot accept that argument. As discussed above, the discretion given by section 123(1) of the Equality Act 2010 to the employment tribunal to decide what it ‘thinks just and equitable’ is clearly intended to be broad and unfettered. There is no justification for reading into the statutory language any requirement that the tribunal must be satisfied that there was a good reason for the delay, let alone that time cannot be extended in the absence of an explanation of the delay from the claimant. The most that can be said is that whether there is any explanation or apparent reason for the delay and the nature of any such reason are relevant matters to which the tribunal ought to have regard” (paragraph 25).

[32]In British Coal Corporation v Keeble

[1997] IRLR 336

, the Employment Appeal Tribunal suggested that the factors listed in Limitation Act 1980 section 33 might serve as a checklist of potentially relevant factors to take - 7 - account in considering whether to exercise the discretion to extend time in discrimination cases, with the position as to the applicability of Limitation Act 1980 section 33 being summarised below. “That section provides a broad discretion for the Court to extend the limitation period of three years in cases of personal injury and death. It requires the court to consider the prejudice which each party would suffer as the result of the decision to be made and also to have regard to all the circumstances of the case and in particular, inter alia, to –(a) the length of and reasons for the delay;

(b) the extent to which the cogency of the evidence is likely to be affected by the delay;

(d) the promptness with which the plaintiff acted once he or she knew of the facts giving rise to the cause of action.

(e) the steps taken by the plaintiff to obtain appropriate professional advice once he or she knew of the possibility of taking action”.

[33]The prejudice which a Respondent will suffer from facing a claim which would otherwise be time barred is “customarily” relevant in such cases (see DCA v Jones

[2007] IRLR 128

, paragraph 44).

[34]In Adedeji v University Hospitals Birmingham NHS Foundation Trust

[2021] EWCA Civ 23

, [2021] ICR D5, Underhill LJ indicated concern that Tribunals had tended to use the factors relevant in dealing with any discretion to extend time in personal injury cases, as set out in Limitation Act 1980 section 33 as a checklist and advised that they should not do so. He went on to give the guidance set out below. ''The best approach for a tribunal in considering the exercise of the discretion under section 123(1)(b) is to assess all the factors in the particular case which it considers relevant to whether it is just and equitable to extend time, including in particular (as Holland J notes) “the length of, and the reasons for, the delay”. If it checks those factors against the list in Keeble, well and good; but I would not recommend taking it as the framework for its thinking.

[35]The fact that a Claimant has awaited the outcome of his or her employer’s internal procedures before making a Claim is just one matter to be taken into account by an Employment Tribunal in considering whether to extend the time limit for making a Claim (see Apelogun-Gabriels v London Borough of Lambeth

[2002] ICR 713

, CA). Burden of proof in discrimination cases

[36]Equality Act 2010 section 136 provides for a shifting burden of proof, as set out below. - 8 - “(2) If there are facts from which the court could decide in the absence of any other explanation that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision”.

[37]Guidance on the burden of proof was given by the Court of Appeal in Igen v Wong

[2005] ICR 931

. This guidance has subsequently been approved by the Court of Appeal in Madarassy v Nomura International plc

[2007] ICR 867

, and by the Supreme Court in Hewage v Grampian Health Board

[2012] ICR 1054

(at paragraphs 25-32). In Efobi v Royal Mail Group Limited

[2021] ICR 1263

, at paragraph 26, Lord Leggatt made it clear that Equality Act 2010 section 136 had not made any substantive change to the previous law.

[38]The burden of proof starts with the Claimant. It is for the Claimant to prove facts from which the Tribunal could infer, in the absence of any other explanation, that the treatment was at least in part the result of the Claimant’s relevant protected characteristic. At the first stage, when considering what inferences can be drawn from the primary facts, the Tribunal must ignore any explanation for those facts given by the Respondent and assume that there is no explanation for them. It can, however, take into account evidence adduced by the Respondent insofar as it is relevant in deciding whether the burden of proof has moved to the Respondent. If such facts are established, then the burden of proof transfers to the Respondent to establish on the balance of probabilities that the protected characteristic formed no part of the reasoning for the impugned decisions or treatment.

[39]The mere fact that the Claimant is treated unreasonably does not suffice to justify an inference of unlawful discrimination to satisfy the first stage of the shifting burden of proof. It may be that the employer has treated the Claimant unreasonably. That is a frequent occurrence quite irrespective of the race or age or other protected characteristics of the employee and will not, by itself, be enough to shift the burden of proof (see Bahl v The Law Society

[2004] IRLR 799

, and Zafar v Glasgow City Council

[1998] IRLR 36

[40]In Madarassy v Nomura International plc

[2007] ICR 867

, the Court of Appeal emphasised that there must be something more than simply a difference in protected characteristic and a difference in treatment for the burden of proof to shift to the Respondent. Mummery LJ gave the guidance set out below. “The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination”.

[41]Madarassy v Nomura International plc [2007] was approved by the Supreme Court in Hewage v Grampian Health Board

[2012] ICR 1054

, where Lord Hope stated that it was important not to make too much of the role of the burden of proof provisions as set out below. - 9 - “They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or the other” (paragraph 32).

[42]In Network Rail Infrastructure v Griffiths-Henry

[2006] IRLR 865

, Elias J said (at paragraph 15) that the mere fact that an unsuccessful candidate was a black woman and successful candidates were white men would be insufficient to be capable of leading to an inference of discrimination in the absence of a satisfactory non-discriminatory explanation. To shift the burden of proof, a Claimant must also prove something more. That is, the Claimant must prove facts from which the Tribunal could infer that there is a connection between the protected characteristics and the detrimental treatment, in the absence of a non-discriminatory explanation.

[43]It is not necessary in every case for a Tribunal to go through the two-stage procedure. In some cases it may be appropriate for the Tribunal simply to focus on the reason given by the employer and if it is satisfied that this discloses no discrimination, then it need not go through the exercise of considering whether the other evidence, absent the explanation, would have been capable of amounting to a prima facie case under stage one of the shifting burden of proof (see Brown v Croydon LBC

[2007] IRLR 259

, CA, at paragraphs 28 to 39).

[44]However, in Anya v University of Oxford

[2001] ICR 847

, CA, the Court of Appeal pointed out (in a case dealing with race discrimination) that very little direct discrimination is today overt or even deliberate so that what the relevant authorities “tell tribunals and courts to look for, in order to give effect to the legislation, are indicators from a time before or after the particular decision which may demonstrate that an ostensibly fair-minded decision was, or equally was not, affected by racial bias”. Direct discrimination

[45]Equality Act 2010 section 13 provides that a “person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others”.

[46]Thus, direct discrimination takes place where a Claimant is treated less favourably, because of the relevant protected characteristic, than the employer treats or would treat others. This can involve comparing the treatment of a Claimant with that received by an actual comparator, or comparing the Claimant’s treatment with that which would have been received by a hypothetical comparator.

[47]Section 23(1) of the Equality Act 2010 provides that on a comparison for the purpose of establishing direct discrimination there must be “no material difference between the circumstances relating to each case”. In the case of Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

, HL, Lord Scott explained that this means that “the comparator required for the - 10 - purpose of the statutory definition of discrimination must be a comparator in the same position in all material respects as the victim save only that he, or she, is not a member of the protected class”.

[48]It is not a requirement that the situations have to be precisely the same. The existence of a different decision maker does not prevent the comparison being a valid one (see Olalekan v Serco Limited

[2019] IRLR 314

[49]In Virgin Active Limited v Hughes

[2024] IRLR 4

, EAT, His Honour Judge Tayler the Employment Appeal Tribunal gave guidance as to the use of comparators (paragraph 61 and 62) as set out below. “61. In many direct discrimination claims the claimant does not rely on a comparison between his treatment and that of another person. The claimant relies on other types of evidence from which it is contended that an inference of discrimination should be drawn, the comparison being with how the claimant would have been treated had he had some other protected characteristic. 62. In other cases, the claimant compares his treatment with that of one or more other people. There are two ways in which such a comparison may be relevant. If there are no material differences between the circumstances of the claimant and the person with whom the comparison is made (the person is usually referred to as an actual comparator), this provides significant evidence that there could have been discrimination. However, because there must be no material difference in circumstances between a claimant and a comparator for the purpose of section 23 EQA it is rare that a claimant can point to an actual comparator. The second situation in which a comparison with the treatment of another person may provide evidence of discrimination is where the circumstances are similar, but not sufficiently alike for the person to be an actual comparator. The treatment of such a person may provide evidence that supports the drawing of an inference of discrimination, sometimes by helping to consider how a hypothetical person whose circumstances did not materially differ to those of the claimant would have been treated (generally referred to as a hypothetical comparator). Evidence of the treatment of a person whose circumstances materially differ to those of the claimant is inherently less persuasive than that of a person whose circumstances do not materially differ to those of the claimant”.

[50]In JP Morgan Limited v Chweidan

[2012] ICR 268

, Elias LJ gave the guidance (at paragraph 5) set out below. “In many cases it is not necessary for a tribunal to identify or construct a particular comparator (whether actual or hypothetical) and to ask whether the claimant would have been treated less favourably than that comparator. The tribunal can short circuit that step by focusing on the reason for the treatment”.

[51]In every case the Tribunal has to determine the reason for the Claimant having been treated as he or she was. In Nagarajan v London Regional Transport

[1999] IRLR 572

, Lord Nicholls observed that “this is the crucial - 11 - question”. He also observed that in most cases this will call for some consideration of the mental processes (conscious or subconscious) of the alleged discriminator.

[52]In Gould v St John’s Downshire Hill

[2021] ICR 1

, EAT, Linden J made it clear that the Tribunal must consider the reason for the actions of the alleged discriminator, as set out below. “The question whether an alleged discriminator acted “because of” a protected characteristic is a question as to their reasons for acting as they did. It has therefore been coined the “reason why” question and the test is subjective… For the tort of direct discrimination to have been committed, it is sufficient that the protected characteristic had a “significant influence” on the decision to act in the manner complained of. It need not be the sole ground for the decision… [and] the influence of the protected characteristic may be conscious or subconscious”.

[53]If the Tribunal is satisfied that the prohibited ground is one of the reasons for the treatment, that is sufficient to establish discrimination. It need not be the only or even the main reason. It is sufficient that it is significant in the sense of being more than trivial (see Nagarajan v London Regional Transport [1999] and Igen v Wong

[2005] ICR 931

, CA). Victimisation (Equality Act 2010 section 27)

[54]Equality Act 2010 section 27(1) and (2) is in the terms set out below. “(1) A person(a) (A) victimises another person

(b) (B) if A subjects B to a detriment because — (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act. (2) Each of the following is a protected act — (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act;

(d) making an allegation (whether or not express) that A or another person has contravened this Act”.

[55]Where it is contended that the protected act consisted of communication which fell within Equality Act 2010 section 27(2)(d), the asserted facts in the communication must be capable of amounting to a breach of the Equality Act 2010 Act and must be sufficiently clear. It is apparent from the parenthesis used in Equality Act 2010 section 27(2)(d) that there is no requirement to make an express allegation of discrimination, but it must be apparent from the context. This was clear from the guidance given by Langstaff P in Durrani v London Borough of Ealing [2013]

UKEAT/0454/12

as set out below: “I would accept that it is not necessary that the complaint referred to race using that very word. But there must be something sufficient about the - 12 - complaint to show that it is a complaint to which at least potentially the Act applies. As Mr Davies points out, the Tribunal found as a fact that the Claimant did not attribute any treatment (at the time) to the fact that he is British of Pakistani origin. That finding of fact alone means that there is no evidence that an employer, seeking to cause detriment to the Claimant as a result of making the complaint he did, could have been victimising him for a complaint made by reference to, under, or associated with the relevant Act.”

[56]In Beneviste v Kingston University [2006]

UKEAT/0393/05

(at paragraph 29), HHJ Richardson made it clear that merely making a complaint, criticism or grievance, without suggesting that the complaint, criticism or grievance was alleging discrimination is not a protected act.

[57]Something amounts to a detriment for the purposes of Equality Act 2010 section 27 if the treatment is of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to her detriment (see Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

, HL, paragraphs 31 to 37). It is an objective test with the focus on the perception of the reasonable worker in all the circumstances of the case. Detriment is, accordingly, treatment which a reasonable worker would or might regard as being to their disadvantage. It is not necessary for the Claimant to demonstrate some physical or economic consequence.

[58]The provisions in Equality Act 2010 section 27 in respect of victimisation do not require any form of comparison. If it is shown that a protected act has taken place and the Claimant has been subjected to a detriment, the issue is essentially that of the “reason why”. In other words, the protected act must be an effective and substantial cause of the treatment, it does not need to be the principal cause. The Tribunal is concerned with establishing what the real (conscious or subconscious motivation) reason or reasons for the treatment were.

[59]In determining whether a detriment was because of a protected act, it is important that the protected act is identified with precision and that the relationship between the detriment and that act specifically is examined (see JJ Food Service Limited v Mohamud [2016]

UKEAT/0310/15

). Unlawful deductions from wages

[60]Employment Rights Act 1996 section 13(1) provides that an employer shall not make a deduction from wages of a worker employed by the employer unless the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker's contract or the worker has previously signified in writing his agreement or consent to the making of the deduction. An employee has a right to complain to an Employment Tribunal of an unauthorised deduction from wages pursuant to Employment Rights Act ERA 1996 section 23. Evidence - 13 -

[61]In terms of documentary evidence, the Tribunal was provided with a Bundle of 494 pages.

[62]In terms of witness evidence, the Tribunal had a Bundle of Statements of Evidence. In addition to the Claimant’s Statement, this included an Addendum to the Claimant’s Statement dated 2 April 2025 and an updated Addendum to her Statement dated 3 April 2025. A further Supplemental Statement was sent to the Tribunal by the Claimant on the first day of the hearing itself and was admitted on the basis that there was no objection from the Respondent. The Bundle of Statements of Evidence also contained the Statements of Evidence of seven witnesses relied upon by the Respondent.

[63]The Tribunal heard oral evidence from all of the witnesses who had provided a Statement of Evidence.

[64]During the course of the cross-examination of Lynn Black, an application was made on behalf of the Claimant for disclosure of any e-mail in which Lynn Black had directly contacted a member of staff regarding their right to work status. This was as a result of Lynn Black having stated in her evidence that there would have been multiple times when she had contacted members of staff regarding such an issue although she could not remember specific examples between March and June 2023. In the end, the Claimant’s request was narrowed on the basis that it would be sufficient for Lynn Black to produce some examples of such communications, which she did so over the course of a lunch adjournment, although the examples provided all related to communications to members of staff regarding DBS and right to work issues in 2024 and 2025.

[65]At the beginning of the third day of the hearing, when Lynn Black was still in the middle of her evidence, the Respondent disclosed a further document which was essentially a summary of communications with the Claimant which Lynn Black had been requested to provide as part of the initial investigation into the events of 9 June 2023. This document had been listed as being appendix 2 to the investigation report. However, a different document appeared in the sequence of appendices (at least in the Tribunal bundle) and it was explained that there had been an oversight in not disclosing this document (which appeared to extend to not having included it as one of the appendices at the time of the investigation report). The document was disclosed as a result of the oversight being appreciated and in accordance with the Respondent’s ongoing duty of disclosure. On behalf of the Claimant, objections were made to the document being admitted in evidence before the Tribunal. The Tribunal decided that the document should be admitted in evidence. In doing so, oral reasons for admitting the document in evidence were given at the time.

[66]The Tribunal was satisfied that the document was clearly a relevant document. It was a summary which was produced by Lynn Black at the time of the investigation and was close to being a contemporaneous document. The Claimant contended that it was a document which contained Lynn Black’s - 14 - subjective and retrospective views. If correct, in itself, this potentially caused the document to be of some significance in that it potentially provided a window to the mindset of Lynn Black at the time of the events in question or shortly afterwards. Clearly, if any subjective views were open to criticism, then those were criticisms which could be made by the Claimant, either in crossexamination or in any closing submissions. The Respondent had, very fairly, acknowledged that there was potential prejudice to a party where a document is produced late. However, the Tribunal was not satisfied that there was any meaningful prejudice or adverse impact on the fairness of the hearing. On behalf the Claimant it had been accepted, again very fairly, that no extra time was needed to deal with document and that it could be dealt with in cross examination. Clearly it was also open to the Claimant to address the issue, in the course of any later submissions, as to the weight and significance to be attached to the document and whether it had any adverse impact upon the credibility of the witness who had produced the document. It was suggested on behalf the Claimant that it was not a document which she had had an opportunity to respond to at the time of the investigation. In the oral reasons which were given it was made clear that this point could also be made, either by reference to the documentation or by seeking to recall the Claimant. However, this point did not appear to be in dispute in that the oversight in not disclosing the document had arisen from the document being missed out from the documents appended to the report.

[67]In the circumstances, having regard to the document’s potential relevance and significance, and with the Tribunal not being satisfied that there was any meaningful prejudice or adverse impact upon the fairness of the hearing, the Tribunal allowed the document to be admitted in evidence. Having given this decision and our oral reasons, we were asked to note the Claimant’s concerns in terms of the document not having been disclosed until during the hearing, the Claimant never having been shown the document and not having been invited to respond to it at the time, and the assertion that it contained subjective opinion, together with the submission that limited weight should be attached to the document.

[68]Ultimately, little meaningful reference was made to the content of the document during the course of the evidence, other than it being put to Lynn Black, by way of cross-examination, that it contained her personal opinions. She explained that the document had been produced in response to a request by Andrea Fisher, the investigating officer, for an overview of what led up to incident on 9 June 2023, as a result of which Lynn Black had constructed a chronology through looking back at the e-mails which had been sent and received. In the end, we attached no weight to the content of the document and did not rely upon it for the purposes of our findings of fact.

[69]In terms of the Tribunal’s impression as to the credibility of the witnesses, this was a case where the various witnesses were in the position of seeking to recall events from nearly two years previously. This meant that it was not always possible to establish clearly what had happened. Over the course of - 15 - the hearing, various inconsistencies and mistakes were identified. However, the Tribunal generally found the evidence of the Respondent’s witnesses to be factually orientated and reliable. They were willing to make concessions which may not have assisted the Respondent’s case whereas the Claimant’s evidence often seemed to be driven by the needs of her case and the case theory being put forward. Both the Claimant’s written evidence and her oral evidence contained a lot of commentary which she was seeking to apply retrospectively to events. When clear questions were put to her based on the versions of events of the Respondent’s witnesses, the Tribunal found that the Claimant often struggled to provide a clear version of events by way of an answer, or else deflected questions by providing a response which simply did not answer the question.

[70]The Tribunal considered the possibility that the Respondent’s witnesses may have colluded or conspired to give a false impression of the Claimant whether as a result of bias or misplaced loyalty to the Respondent, but ultimately concluded that these were honest witnesses seeking to assist the Tribunal and that it was significantly more likely than not that the picture which emerged from their evidence was the correct picture. As a result, save where otherwise indicated, the Tribunal generally preferred the evidence of the Respondent’s witnesses to that of the Claimant. Findings of fact

[71]On 4 June 2020, the Claimant commenced employment with the Respondent as a Support Worker contracted to work 37.5 hours per week. At this point in time, the Claimant had a residence permit with a right to work which was valid until 5 October 2022. The Claimant had also been issued with a DBS certificate, with the relevant checks having been completed, with these checks due to be repeated after a three-year period, which would have expired on 28 May 2023.

[72]The Claimant commenced maternity leave on 4 October 2021.

[73]On 19 January 2023, the Claimant met with Lisa Jones, Deputy Manager, to discuss return to work arrangements. Lisa Jones agreed to the Claimant’s request to reduce her hours from 37.5 hours to 24 hours per week, working Friday and Saturday waking night shifts. This was subject to the Claimant submitting a flexible working request and its authorisation by Andrea Fisher. It was also agreed that the Claimant would complete a phased return to work, by spending a few hours shadowing on 3, 10, 17 and 24 February 2023, and 3 March 2023, before returning to full duties on the 17 March 2024.

[74]Accordingly, the Claimant submitted a flexible working request by which she was effectively seeking to have her contractual hours reduced to 24 hours per week on the basis that these hours would be worked through “Friday and Saturday night shifts with the possibility of changing to flexible days in the future”. - 16 -

[75]This seems to have been agreed, although the only documentation in the Bundle giving effect to these changes was a Staff Changes Form which seems to have been signed by the Claimant and a manager on 19 January 2023, but which simply stated that her new contracted hours amounted to 24 hours per week without stipulating that these were to be worked by way of Friday and Saturday night shifts. However, it seems clear that it was understood that the Claimant was now contracted to work 24 hours per week on the basis of working Friday and Saturday night shifts.

[76]It is to be noted that, in relation to the work shadowing which was arranged, there was a subsequent dispute as to whether the Claimant had been correctly paid. In the course of subsequent e-mail communications with Michelle Bolton over this issue, the Claimant was provided with a copy of the grievance policy on the basis that this was the procedure to use if she wished to raise a matter formally.

[77]On Monday 17 April 2023, the Claimant e-mailed Michelle Bolton, Service Manager, informing her that her circumstances had changed as her husband had moved into a different role and shift pattern, so that the Claimant would now be needed most weekends to look after her children. As such, she confirmed her forthcoming availability by giving six dates in the period up to 6 May 2023. This included a number of dates which were not Fridays or Saturdays. It did not include the next Friday and Saturday.

[78]The following day, the Claimant e-mailed Michelle Bolton and confirmed that “I am not available for work this week on Friday and Saturday”.

[79]The response of Michelle Bolton was that this would be recorded as an unauthorised absence as the Claimant was contracted to work 24 hours per week. Michelle Bolton stated that as “per my previous e-mail, if your availability is limited and you are only able to tell us what you are free to work, we would be looking to change to a bank contract”.

[80]The Claimant’s reply indicated her disagreement on the basis that “this is an emergency childcare need due to my change of circumstance”.

[81]The response of Michelle Bolton was to the effect that this could not be approved as an annual leave request as an annual leave request needed to be made with four weeks’ notice “as per policy” so that the absence would be treated as unauthorised as the Claimant was unable to fulfil her contractual hours. She offered to meet the Claimant to discuss moving onto a bank contract due to her change in circumstances.

[82]The Claimant e-mailed back on 19 April 2023. She stated that she was aware of annual leave having been granted to members of staff with less than four weeks’ notice “and this cannot be refuted if this is escalate(d) to court”. She suggested that the decision of Michelle Bolton “may consequently result in a litigation process on the organisation on the grounds of unfair treatment”. She requested that the decision be reviewed. - 17 -

[83]At this point, Lynn Black, Locality Manager, became involved. She had commenced working for the Respondent the previous month. Her e-mail adopted a conciliatory tone by way of apologising for the Claimant “feeling disgruntled” but made it clear that “we cannot offer ad hoc shifts to an employee who has a flexible 24hr waking night contract”, so that the Respondent would need to review this and suggested a meeting for these purposes.

[84]The Respondent did show some flexibility in that Anna Holden, Team Leader, e-mailed the Claimant on 23 April 2023, stating that the rota had been changed to cover the shift which the Claimant could not do on Friday 28 April and that she been allocated a shift on Monday 24 April which was one of the shifts which she had said that she could do. However, the Claimant replied stating that she was no longer available for that shift on a Monday as there had been changes since the last time that she had provided dates of availability so that she now needed to care for her children on that date. She stated that she was intending that the “days off will serve as an emergency annual leave myself”. She noted that she was due to meet Lynn Black which would hopefully provide clarity moving forward.

[85]In the meantime, Anna Holden had also e-mailed the Claimant on 22 April 2023 informing her that she would need to bring in information to update her DBS as it was “due for running out”. The Claimant’s position was that she would put it on her “to do list at some point” as “the current DBS remains valid” and in the meantime “I need to get my annual leave sorted out”. Anna Holden clearly found this response to be unsatisfactory and made it clear that the Respondent’s position was that the Claimant’s DBS checks needed to be updated by 28 May 2023 and if this was not updated in time there was a possibility of the Claimant not having any shifts offered or being suspended “due to staff having to have an up to date DBS in place to work in the care sector”. The Claimant replied stating that “I am subscribed to the DBS update service I should be able to update it personally when it’s due”. The e-mail exchange caused Anna Holden to e-mail Lynn Black, Michelle Bolton and Lisa Jones stating that “I do not agree with Peace(‘s) response to her DBS I think she is very rude and her response was inconsiderate as we are only trying to help her (to) prevent her from the possibility of having her shifts suspended”. She commented “(h)ow rude to talk to team leaders and management as we are here to support her”.

[86]The proposed meeting with Lynn Black subsequently took place by telephone on 25 April 2023, when Lynn Black agreed to authorise three weeks of emergency leave, and one week of unpaid leave. On 3 May 2023, Lynn Black e-mailed the Claimant to confirm the matters which had been discussed. The position was that the Claimant had informed Lynn Black that she would be returning on 20 May 2023 when her childcare arrangements had settled down. Lynn Black had agreed to treat the four weeks prior to this date as three weeks of paid leave and one week of unpaid leave. However, Lynn Black noted that the Claimant was effectively stating that her availability after this - 18 - date would be ad hoc and made the point that this would amount to a “sessional contract as you would not be committing to the same hours each week”. Lynn Black was happy to accommodate this by putting the Claimant on a sessional contract.

[87]The Claimant’s reply took issue with any suggestion that she was not fulfilling her contract. This was on the basis that the documentation regarding her flexible working terms amounted to her having “accepted a Friday and Saturday night shift in the interim and I indicated this was subject to change”. However, in so far as the Claimant’s flexible working request referred to the possibility of “changing to flexible days in the future”, this would clearly have been subject to needing to be agreed in future rather than the Claimant’s shift pattern simply being subject to change at her own volition. The Claimant asked to see a copy of the terms which would apply to a sessional contract.

[88]Lynn Black’s reply provided the information applicable to a bank contract. Her reply also suggested that the position was that the Claimant was now seeking to change the flexible working arrangements which had been agreed and, if necessary, those arrangements could be reviewed on her return to work, and a new agreement reached.

[89]The Claimant replied on 16 May 2023 making it clear that she did not want to move to a sessional / bank contract in that she wanted to remain on her contract “for the time being”. She also asked that her annual leave be extended to cover further dates when she would be unavailable in the period up to 1 July 2023 which was when she anticipated having more stable childcare arrangements in place.

[90]The reply of Lynn Black suggested that annual leave could be discussed on the Claimant’s return to work and asked the Claimant to “let me know when you are returning to work”.

[91]As Lynn Black did not receive a response to this e-mail, she subsequently made arrangements to cover the next shift which the Claimant was due to work, which was Saturday 20 May 2023, by giving the shift to someone else. This would appear to have involved a misunderstanding as the Claimant had not said that she was not available for 20 May 2023. However, the Claimant had not replied to the e-mail sent on 16 May 2023 specifically asking her to confirm when she was returning to work.

[92]Lynn Black subsequently called the Claimant on 19 May 2023 to discuss her return to work. In this conversation, she understood the Claimant to be suggesting that she would “let us know each week her availability for shifts, to then fulﬁl her 24 hour contract”. Lynn Black made it clear that this amounted to a sessional contract and under the Claimant’s present contract she could not dictate what shifts she would be doing. Lynn Black confirmed that the shift which the Claimant had been due to be working on 20 May 2023 (which was at the address of service users in Windemere Road) had now been covered. - 19 - Lynn Black offered the Claimant a shift in another service for that day, which the Claimant refused.

[93]The Tribunal is satisfied that, as a result of the Claimant being aggrieved about the situation, the conversation became heated, and as it became more and more heated, the point was probably reached where the Claimant was shouting at Lynn Black. As a result, Lynn Black made the decision to end the call as the situation was getting out of hand.

[94]Following the call the Claimant sent an e-mail to Lynn Black complaining about the way in which Lynn Black had conducted the telephone call. One of the issues to be determined in the case is whether this e-mail amounted to a protected act for the purposes of the Claimant’s victimisation complaints under section 27 of the Equality Act 2010. The wording of the e-mail was as set out below. “You made some comments to me during your unplanned call to me today which are not consistent with the contract I accepted with caretech 3 years ago. You insisted that I move my shift to another house without giving me any reason for this sudden change. You abruptly ended the call while we were still speaking, which I believe is disrespectful, unprofessional and unacceptable. You were indicating that you tell me what to do and I cannot tell you otherwise which I feel is condescending. I don't see this as an appropriate treatment of your staff and colleague. I will be speaking with my union about this and would appreciate if you can inform me in advance about future meetings so I can request the presence of my union rep. In the meantime, can you kindly confirm that I will be resuming my shift at Windermere house tomorrow as initially agreed. Kindly reserve your correspondence with me by email for now and do not call me directly except it is an emergency. Thank you”.

[95]The e-mail had been sent by the Claimant at 15.54 pm on Friday 19 May 2023. Lynn Black does not seem to have replied to the query in respect of the Claimant working her shift at Windermere House. However, the Tribunal is satisfied that it had been made clear in the telephone call that the Claimant was no longer on the rota to work that shift at Windermere House, and she had refused the offer of a shift at a different location.

[96]On Monday 22 May 2023, Lynn Black conﬁrmed that Anna Holden should send some dates to the Claimant to attend work. The dates provided by Anna Holden included 25-28 May, 30-31 May and 9-10 June. On this basis, a rota was sent to the Claimant on 22 May 2023. The Claimant replied taking issue with the rota as some of the dates were the dates in respect of which she had already requested annual leave so as to sort out childcare and so was unavailable. She also noted that the dates included weekdays and sought confirmation that the Respondent was now suggesting that her shift included - 20 - weekdays. However, she confirmed that she would be available on six dates in June and for Friday and Saturday shifts from 1 July 2023.

[97]The Claimant did not subsequently attend to work for the shifts for which she had been put on the rota for 25-28 May 2023. However, there does not appear to have been a reply from Anna Holden regarding the issues which the Claimant had raised with the rota.

[98]The Claimant subsequently e-mailed Anna Holden on Tuesday 30 May 2023 confirming her availability for the forthcoming Friday and Saturday (2 and 3 June 2023) although these were not dates which she had been due to work on the rota which Anna Holden had provided. The Claimant’s e-mail also gave the other dates in June 2023 when she stated that she would be available.

[99]This resulted in Lynn Black e-mailing the Claimant, on the same day, stating that the shifts were covered and that she had been sent a rota which she had not fulfilled so that she was currently absent without authorisation. Lynn Black stated that she would arrange a video meeting to discuss the matter.

[100]The Claimant replied (half an hour later) suggesting that she was being treated in a way which was not consistent with her contract and stated that “I assure you this may end up with a litigation against the organisation should my contract not be upheld with recourse to due diligence and fair treatment”.

[101]At this point, Trish Cashmore of HR became involved and sent an e-mail on 31 May 2023 which was clearly seeking to find a resolution to the impasse which had developed. She suggested that the position was that because the Claimant’s circumstances had changed in that she could not work all of the fixed Fridays and Saturdays which she had agreed, she was now being “placed on the rota in the same way as your colleagues”. Thus, she explained that the “shifts are being offered in line with your contract but you are not available to work them”. She indicated that she was “happy to look at options to resolve this” which she suggested might be that the Claimant(1) “remain on your current agreement - 24 hours working Friday and Saturday night”, or

(2) put in a request for a new flexible working agreement which would be “considered in line with the policy and may or may not be agreed to but we would look with you to find a solution”, or

(3) moved to a bank contract which “would enable you to have the flexibility to choose the shifts that you work”.

[102]The Claimant replied and summarised the position of being one in which she was able to work three weekends out of five weekends in June and was requesting annual leave or unpaid authorised absence for the two weekends when she could not work.

[103]Trish Cashmore replied asking the Claimant to confirm that she could work the agreed Friday and Saturday shifts from 1 July 2023 so that it was a question of finding a short-term resolution for June.

[104]The Claimant confirmed this in an e-mail sent two minutes later. Trish Cashmore subsequently e-mailed Lynn Black and Michelle Bolton suggesting - 21 - that it was a matter of looking to resolve the short-term issue amicably, but for these purposes “we can’t allow her to use all of her annual leave but can agree to some” and “then see if there are shifts that she can do for June”.

[105]On the face of it, this ought to have been capable of resolution; for example, allowing annual leave for one of weekends and unpaid leave or some other kind of leave for the other weekend.

[106]At 10.18 am on 31 May 2023, Trish Cashmore e-mailed the Claimant stating that if “you can leave it with us and we can review and see how to resolve this”. The e-mail ended by stating that “I will update you again later”. Crucially, Trish Cashmore does not appear to have done so and did not get back to the Claimant to update her as to the position.

[107]In the meantime, Lynn Black and Anna Holden proceeded on the basis that, as there had not been further communication from the Claimant regarding any resolution as to the shifts that she would be working in June, it would be necessary to make alternative arrangements to cover the shifts that had been put on the rota as being due to be worked by the Claimant for 9 and 10 June 2023. Again, this was clearly a misunderstanding on the part of the Respondent. The Claimant had said that she was available to work on 9 June 2023. However, the Claimant was replaced on the rota for 9 June 2023 by Liz Orioye, who is Black Nigerian. The Claimant was later to complain that this amounted to race discrimination.

[108]On any view, the situation continued to be poorly managed. In the absence of having heard further from Trish Cashmore, the Claimant e-mailed Trish Cashmore by way of a chasing e-mail on Tuesday, 6 June 2023 pointing out that she had not heard further from Trish Cashmore following the previous correspondence. There does not seem to have been a reply to this e-mail. This e-mail had also been copied to Lynn Black and Michelle Bolton.

[109]On 9 June 2023 at 9.33 am, Lynn Black e-mailed Trish Cashmore (only) by way of replying to the Claimant’s e-mail from 6 June 2023. In her e-mail she stated that she thought that the Claimant’s right to work had expired and asked as to checking this. She stated that she thought that the Claimant would need to bring in her documents. The Claimant’s has also subsequently complained that being asked to present her right to work documents on 9 June 2023 also amounted to direct race discrimination on the grounds of race.

[110]The Tribunal accepted that concerns arising from a CQC inspection elsewhere in the Respondent’s business had uncovered a systemic problem which had led to a review of whether right to work documentation was in place for employees across the business. This applied to all employees in that the Respondent had been conducting an exercise of making sure that up-to-date right to work documentation was on file for each employee. Failure to make sure that the Respondent had checked right to work documentation was a serious issue for the Respondent in that, in addition to adverse insurance implications, the potential legal ramifications included possible ﬁnes up to - 22 - £20,000 per breach (at that time), and a potential trigger of a whole business review from the Home Office which might have resulted in the Respondent losing its licence to sponsor visa applications which would have had serious recruitment consequences. In the Claimant’s case, the right to work documentation on file had expired and she was one of many who were asked to provide updated right to work documentation. It was a legal requirement that the Respondent make sure that the Claimant had up-to-date right to work documentation. This was not confirmed by the records which it held for the Claimant at this point in time.

[111]At 15:45 pm on the 9 June 2023, the Claimant followed up her e-mail of 6 June 2023 by e-mailing Trish Cashmore stating that she was planning to be at work that day as initially mentioned and “would appreciate that this is conﬁrmed”. At that point, Trish Cashmore did not reply to the e-mail, which had been sent near to close of business on a Friday. As such, no such confirmation was provided to the Claimant. However, the e-mail had been copied to Lynn Black and she sent an e-mail to the Claimant at 15.49 pm stating that the Claimant needed “to bring in your right to work docs as DBS has expired”. Obviously, this was not specific as to when the Claimant needed to bring in such documents. However, following an e-mail which had referred to the Claimant planning to be at work “today” and which had sought confirmation as to the position, the e-mail from Lynn Black was ambiguous and could easily have been misinterpreted.

[112]However, at approximately the same point in time, the Claimant spoke on the telephone to Honey Abiola who was a Support Worker on the day shift. The Claimant had asked whether she was on duty either that night or the next night and it had been confirmed to the Claimant that the Claimant was not on duty for either shift.

[113]Lynn Black sent a further e-mail to the Claimant at 16:04 pm telling her to send the documentation to Nikki Smith, Resourcing Business Partner. This was because HR handled the veriﬁcation / ﬁling process. Simply producing the documentation was not, in itself, sufficient, in that it needed to be checked and verified. The Claimant sent a copy of her right to work documentation to Nikki Smith and then e-mailed Lynn Black at 16.27 pm confirming that she had done this and stating that “I have attached an official copy of the rota that indicates my shift this weekend” and “I will be at work as planned”.

[114]This was a little disingenuous, as the rota was not the up-to-date rota, and the Claimant would have known this from the fact that the telephone call to Honey Abiola had effectively established that she was not due to be on shift anymore.

[115]However, the situation was made worse by the fact that Lynn Black did not respond. She gave the reason as being that she was aware that the Claimant was now dealing with HR directly and was unaware of any arrangements between the Claimant and HR. However, she had also spoken with Lisa Jones about the scenario of the Claimant coming in regardless of the rota being updated and had said that she would need to be asked to leave and the - 23 - situation clariﬁed on Monday. She had also told Megan Duffy a Deputy Manager, who was the ﬁrst line on-call manager that weekend, that the Claimant had previously been on the rota for that weekend but had now been removed and she did not expect the Claimant to attend work that evening. The fact of both conversations demonstrate that Lynn Black was clear that the Claimant was no longer working that shift, but it was a clear failing on her part not to be clear in telling the Claimant this when she received e-mails from the Claimant at 15.45 pm and 16.27 pm.

[116]The upshot was that the Claimant duly attended work. She must have known that it was likely that she was not supposed to be attending work, but she clearly disagreed with the position which had been reached regarding this and so was not inclined to accept such a position. She had every right to be aggrieved by the fact that it had not been properly communicated to her.

[117]The evidence gathered as a result of the subsequent investigation included a statement from Honey Abiola, the Support Worker who had been on the day shift and was there when the Claimant arrived. She confirmed that she again told the Claimant that she was not on duty. The Claimant suggested that she had already chatted with managers which would have given the impression that she was not accepting what she had been told by Honey Abiola. As a result, Honey Abiola telephoned Megan Duffy.

[118]Megan Duffy provided a statement on 12 June 2023 for the subsequent investigation which set out the events which then occurred. This was partly corroborated by the statement obtained from Liz Orioye, who was turning up for the night shift. The Tribunal found the evidence of Megan Duffy to be compelling and persuasive. The effect of her evidence was that when she was called on the telephone, she could hear that there was an argument going on with raised voices over who should complete the shift. She told the Claimant that the Claimant was not required to complete the shift as she was not on the rota. This resulted in an argument with the Claimant who insisted that she was on the rota. Megan Duffy told the Claimant that she should remain on shift until she had sought clarification. This resulted in her telephoning Lisa Jones, who was off duty. She informed Megan Duffy that the Claimant should not be working and also that her DBS documentation was out of date. Lisa Jones advised that she had contacted Lynn Black who stated the same and that the Claimant should be asked to leave the shift on the basis that, if she refused, the Police should be contacted.

[119]Accordingly, 15 minutes after her earlier call, Megan Duffy spoke to the Claimant on the telephone and confirmed the instruction to leave the shift. She asked the Claimant to do so on several occasions, but the Claimant refused. Megan Duffy accepted that she did not have full oversight of ongoing issues but that these would need to be discussed on a Monday with senior management and HR and, in the meantime, the Claimant needed to leave the shift. In the course of disputing this instruction, the Claimant was raising her voice to the extent that Megan Duffy was concerned at the disturbance that - 24 - was being caused in the home of a service user. The Claimant insisted that she wanted the request to leave put in writing and Megan Duffy duly e-mailed confirmation of the instruction at 21.16 pm. She contacted the service again at 21.47 pm and the Claimant was still on site and made it clear that she would not be leaving. Megan Duffy made it clear that, if the Claimant did not leave, she would have to contact the Police. The Claimant responded to the effect that that was fine.

[120]Megan Duffy then contacted the second on-call, who was Andrea Fisher, who agreed that the Police would need to be contacted .

[121]Megan Duffy contacted the Police at 21.55 pm and set out the circumstances over the telephone. The Police duly attended, and at 22.21 pm contacted Megan Duffy to say that she would need to attend the premises and ask the Claimant to leave in person which Megan Duffy did. By this time the Claimant’s husband had attended the incident with their young children in the car and the Claimant left with them. In addition to the fact that the Claimant was obviously both angry and upset about the incident, the Tribunal can readily accept that this would have been an incident which would have caused distress to those children.

[122]Following the incident, at 23.54 pm on 9 June 2023 the Claimant e-mailed Megan Duffy, copied to Trish Cashmore and others, regarding the circumstances in which she had been required to leave Windermere House. She relies upon this email as a further protected act the purposes of Equality Act 2010 section 27. It was in the terms set out below. “The police were called to Windermere House today for the purpose of removing me from work despite me clearly stating on phone to you that I have been scheduled to work today and copied you on the e-mail showing my latest correspondence regarding this. I left Windermere house in other to prevent the breach of peace and not because you had the facts or legality to prevent me from work. 1. I contacted Trish earlier this week and earlier today for update on our previous correspondence but Lynn replied today requesting for my right to work. My right to work was very much in date and has been forwarded to Nikki as requested by Lynn this afternoon. 2. Lynn referred to my DBS which she says was out of date however, I still have a valid DBS as indicated on my DBS update service until sometime in 2024. This you are aware is legal and permitted for work as I am not changing employment and if this need reassessing or reappyling for it still does not discredit or prevent my ability to work today. 3. I forwarded a copy of the rota for the month of June to Lynn that clearly shows me working this weekend but you chose to state and act otherwise. 4. You mentioned to me that Lynn advised you that I was not available for work throughout the month of June however, this is false and a deliberate attempt to mislead the team and use her position to manipulate the facts and - 25 - as I have never in any of my correspondence with Lynn said this and I clearly stated this to Trish in an e-mail that Lynn was also copied. 5. This is clearly an administrative matter but you chose to act high handedly. This is a shame on the organisation and a clear picture of how you value your staff and colleague. There was ample time to resolve this during my correspondence with Lynn this afternoon if there had been a clear response after I sent the document she requested, besides I do not see why the matter of documentation was only brought up after I indicated my intention to be at work as scheduled today. At this point I believe you may have breached my contract, ignored the code of Ethics, and violated my employment rights and I hope this can be fairly (adjudicated) should this matter get to court. Thank you”.

[123]Following the incident on 9 June 2023, it was agreed to schedule a meeting with the Claimant in relation to the issue of her return to work. The meeting took place on 14 June 2023 with Lynn Black and Trish Cashmore in attendance with the Claimant. The invitation to the meeting had described it as being a meeting to “discuss your shifts and make sure that we all understand what those shifts are”. Trish Cashmore took a note of the meeting, but it was not verbatim. The circumstances which had given rise to the issues regarding the Claimant’s availability, and which had resulted in the Respondent rearranging shifts, were discussed at some length. At one point, after Lynn Black had set out her analysis of the position, the Claimant is recorded as having stated that “(y)ou are bullying me”. The meeting was not particularly productive to the extent that, when the Claimant complained, legitimately enough, that if it was being suggested that she had not provided confirmation of her availability then no one had “ever come back to me about it”, Lynn Black unhelpfully suggested that “we’re going round in circles”. According to the note, this prompted the Claimant to complain that “(y)ou’re not listening to me” and “(t)hat’s a bully”.

[124]The Claimant’s case is that the note was incomplete and had a further or verbatim note of the meeting been in existence, then this would have evidenced the Claimant raising matters so as to give rise to a protected act. However, her assertion to this effect was in very general terms so that the Tribunal was not presented with clear evidence as to what was said, which was not in the note, which amounted to a protected act. Against this, the evidence of Trish Cashmore and Lynn Black was clear that this was not a meeting in which anything was said which they would have understood as amounting to a protected act. The Tribunal concluded, on the balance of probability, that if anything had been said in the course of the meeting that amounted to a protected act, such as an allegation of discrimination, then it would have been recorded given the significance that making such an allegation would have had, having regard to the fact that it was a senior HR professional recording the meeting who had clearly made a point of recording other matters of significance such as the allegation of bullying, and had - 26 - specifically indicated in the note of the meeting where there was a part of the meeting which had not been noted which was when she herself had been speaking.

[125]The Claimant did refer to the meeting of 14 June 2023 in the statement which she later provided for the purposes of the investigation. In this statement, she was suggesting that she had understood that she would resume working shifts from 1 July 2023. The statement does suggest that she requested “to know about the investigation into the matter that happened on the 9th of June 2023 that I have complained about but … Trish mentioned to me that this was a separate matter and will be investigated accordingly”. This would appear to be referring to the Claimant’s e-mail sent on 9 June 2023 after the incident itself.

[126]Developments after the incident on 9 June 2024 were, in many respects, equally unsatisfactory. The entirely understandable decision had been made to conduct an investigation into the Claimant’s conduct on 9 June 2023. Whatever the rights or wrongs of the situation, she had created a disturbance in the home of a service user and refused multiple instructions to leave the premises to the extent that the Police had had to be called. Notwithstanding the considerable mitigation, it did amount to gross insubordination.

[127]The initial view taken by Deanna Whittle, who was the Respondent’s Performance Director North (Adult Services), was that the allegations possibly justified suspension. However, it seems that a decision to this effect was not made at the time. Instead, it seems to have been decided that a decision as to suspension would be taken once the investigator, Andrea Fisher, had “gathered some more of the facts”. The first investigation meeting then took place with the Claimant on 29 June 2023 following which, as the meeting needed to be reconvened, the Claimant was told not to attend any of the Respondent’s sites “until such a time that we are able to conclude this factfinding meeting unless you are advised otherwise as part of this process”.

[128]The Claimant was never advised otherwise or had confirmed to her that she was formally suspended, and effectively this morphed into a situation where the instruction not to attend the workplace remained in place until the investigation was concluded, which was after a period of many months, culminating in the Claimant’s invitation to a disciplinary hearing on 2 April 2024 because there was a disciplinary case to answer. Shortly prior to this, the disciplinary papers had been sent to Ben Martin, Locality Manager, who was due to be conducting the disciplinary hearing, and he had advised that, from his initial perusal of the documentation, whilst he was happy to proceed to a disciplinary hearing, “I don’t think she has been treated particularly well and looking at what occurred I cannot see how it is gross misconduct, which it would normally have needed to be in order to justify suspension”.

[129]Whilst it is true that there are some initial delays in proceeding with the investigation as a result of the Claimant’s reluctance to attend investigation - 27 - meetings, most of the subsequent delay appeared to be through the administrative failings of the Respondent.

[130]Thus, it was those delays which resulted in the Claimant only being informed on 2 April 2024 that there would be a disciplinary hearing which then took place on 12 April 2024 and resulted in the disciplinary sanction of a final written warning. Ultimately, Ben Martin was persuaded that the allegation amounted to potential gross misconduct on the basis of it involving gross insubordination but was persuaded that the circumstances gave rise to mitigation so that a more lenient approach was adopted by way of disciplinary sanction than might otherwise have been the case. Delay in bringing proceedings

[131]Following the investigatory meeting on 29 June 2023, in an e-mail sent to Andrea Fisher on the same day, the Claimant had concluded with a paragraph in the terms set out below. “I hope to be in contact with you soon following any advice I get from my solicitors and union as this may be an issue for an independent adjudicator, the employment court or relevant body to resolve in order to rule out any bias, discrimination or prejudice”.

[132]On the face of it, by the end of June 2023, the Claimant was considering seeking assistance and advice in relation to bringing legal proceedings complaining of discrimination. An e-mail sent to Trish Cashmore on 31 July 2023 simply made reference to discrimination on the basis that this “will be proven if this gets to court”.

[133]Notwithstanding legal proceedings complaining of discrimination having been intimated at an early stage, the ET1 Form of Claim which was filed on 11 October 2023 only ticked the boxes in respect of being owed arrears of pay and other payments.

[134]This was consistent with the Claimant’s e-mail sent on 5 August 2023 to the Respondent which stated that “I’ve now directed my representatives to forward all correspondence to process my unpaid wages through the employment Tribunal”. It was also consistent with the statement which the Claimant provided to Andrea Fisher which did not refer to discrimination but described the steps taken by the Claimant in relation to taking legal proceedings in the terms set out below. “I have since been in contact with Acas and my union about this and have followed this up with an application to the employment Tribunal to resolve the issue of the non payment of my wages from the 1st of July till date and an additional compensation for the impact this has had on my family”.

[135]The application to amend the Claim to include the specific complaints of direct race discrimination arising out of the Claimant’s treatment on 9 June 2023 was not made until 28 November 2023 and the application to amend the Claim - 28 - to include the specific complaint of victimisation arising out of the Claimant’s treatment on 9 June 2023 was not made until 23 April 2020. Conclusions Time Limits

[136]The complaints of victimisation relating to the instigation of disciplinary proceedings and the issuing of the final written warning are in time.

[137]The Respondent contends that all of the complaints of direct discrimination and the complaint of victimisation in relation to 9 June 2023 have been brought outside of the three-month time limit and therefore, prima facie, the Tribunal does not have jurisdiction to determine those complaints. Additionally, the Respondent contends that it would not be just and equitable in all the circumstances to extend time for those complaints.

[138]In respect of the direct discrimination complaints, two allegations of unfavourable treatment are made. On the basis of our findings of fact, the Tribunal concluded that they were both, distinct, one-off acts which were said to have occurred on 9 June 2023. Thus, the Tribunal was not satisfied that the acts complained of formed part of discriminatory and / or victimising conduct extending over a period. As such, it did not become appropriate to treat the time limit as having run from a later date than the date of the specific acts in issue.

[139]Allowing for the extension of time in respect of ACAS conciliation, the last day to present these complaints was 20 October 2023. The application to amend was made on 28 November 2023. Given that the complaints of direct race discrimination were in relation to events on 9 June 2023, the amendment application was made approximately 5½ months after the events which were being complained about as amounting to discrimination when the primary time limit (subject to any extension for early conciliation) would normally be three months.

[140]In relation to the victimisation complaint about the calling the Police on 9 June 2023, it is to be noted that the relevant date of the amendment application of the time limit purposes was 23 April 2024 (in other words, the date of the preliminary hearing). Thus, this complaint was effectively being made nearly 11 months after the events which were being complained about as amounting to victimisation (and in respect of which, again, the primary time limit would be three months).

[141]Although both the Case Management Orders and the annexed List of Issues identified the issue of time limits in terms of whether any complaint was in time and, if not, whether or not it would be just and equitable to extend time, the Claimant’s Statement of Evidence did not directly deal with the circumstances involved in any delay in complaining of direct race discrimination and victimisation or any circumstances relevant to extending any applicable time limit. - 29 -

[142]In answer to questions from the Tribunal, the Claimant sought to explain any delay by suggesting that she had been hoping to resolve matters outside of any formal legal proceedings and / or she had been following the internal procedures of the Respondent. She also suggested that she had needed clarification as to how to go about complaining about discrimination which was only obtained once ACAS had referred her to the Citizens Advice Bureau. She further suggested that she had been struggling with mental stress caused, in particular, by the involvement of her children who had been present outside Windermere House on 9 June 2023.

[143]These various explanations amounted to a retrospective attempt to p explain the delay in raising the specific complaints of discrimination and victimisation concerned. The explanations were rather less than satisfactory, in that the Claimant had been threatening litigation in correspondence at various points in time, including referring to getting advice from her union and solicitor at the end of June 2023. Further, on the face of it, the Claimant appeared to have had had had no difficulty in making the complaints which she had made in completing the ET1 Form of Claim on 11 October 2023. She would also appear to have been assisted at various stages by her husband who had, for example, attended the investigatory meeting with her on 9 June 2023. The fact that the Respondent’s own investigatory process had dragged on into 2024 had not prevented the Claimant from filing the ET1 Form of Claim within the time limit or making the later application to add the specific complaints of direct race discrimination. Further, the Tribunal was satisfied that this was not a case where it could seriously be said that any steps taken by the Respondent had had the effect of frustrating the issue of proceedings.

[144]Although the Claimant’s Statement of Evidence referred to Respondent’s actions having a severe negative impact on her mental and physical wellbeing, any medical evidence was very limited. The index to the Bundle referred to the inclusion of the Claimant’s GP records for the period between August 2022 and February 2024 but the only entries included in the medical records were in respect of ear wax in August 2022 and hypertension / raised blood pressure in January and February 2024. Notwithstanding any issues in respect of her mental and physical well-being, the documentation in the Bundle shows that the Claimant was able to engage in fairly detailed correspondence with the Respondent regarding disputed issues relating to her employment in the period between June and October 2023 in addition to being able to complete the ET1 Form of Claim on 11 October 2023. The correspondence also made various references to the Claimant’s union from which it appeared that she had access to the assistance of her union. On her own case, it also appears that she was willing and would have been able to work.

[145]Having identified the extent of the delay, as set out above, the Tribunal concluded that, properly analysed, as above, there was no real explanation for the delay. The Claimant had been raising issues of discrimination and suggesting that she was seeking advice from her union and solicitors by late - 30 - June 2023. Indeed, given that, on her case, the Claimant had been aware of facts giving rise to the relevant causes of action at the time of her purported protected acts, it could not be said that the Claimant had acted promptly once she knew of the facts giving rise to those causes of action.

[146]In terms of the extent to which the cogency of the evidence was likely to be affected by the delay, this was a case where a number of the witnesses were hampered by having to recall events from nearly two years previously. As such, there was undoubted prejudice to the Respondent. The Tribunal also recognised that any extension of a time limit would potentially have the effect of depriving the Respondent of a statutory defence, notwithstanding the fact that this might be viewed as a litigation windfall.

[147]Further, whilst there was considerable merit to the Claimant’s argument that she has not been well treated by the Respondent, the Tribunal has ultimately found, having considered the merits of the complaints themselves, that her complaints of race discrimination and victimisation were not meritorious.

[148]In all of the circumstances, the Tribunal was not persuaded that it would be just and equitable to extend time in relation to those complaints which had been made outside of the time limit. Direct race discrimination

[149]As stated, notwithstanding the decision arrived at as to the complaints of direct race discrimination being outside the jurisdiction of the Employment Tribunal by reason of being out of time, for the state of completeness, the Tribunal considered the merits of the complaints.

[150]The Claimant has complained that being asked to present her right to work documents on 9 June 2023 amounted to direct race discrimination on the grounds of race.

[151]The Tribunal was not satisfied that the Claimant had proven facts from which the Tribunal could conclude that asking her to produce her right to work documentation involved treating her less favourably than someone in the same material circumstances of a different race would have been treated.

[152]Indeed, the Tribunal was not satisfied that this amounted to a detriment. It was a legal requirement that the Respondent make sure that the Claimant had up-to-date right to work documentation. This was not confirmed by the records which it held for the Claimant at this point in time. The fact that the Claimant required to have proof of the right to work was known throughout her employment. It was plainly the case that the evidence then on file in respect of this had expired during her maternity absence. The Tribunal accepted that it was inevitable and necessary that the Claimant would be asked to provide updated evidence. The request was not, therefore, detrimental. Indeed, under cross-examination the Claimant accepted that there was a duty upon the employer to ensure these details were up to date. - 31 -

[153]Given the nature of the legal requirement involved, the Tribunal was satisfied that, had the same situation arisen in relation to a hypothetical comparator of a different race whose circumstances were otherwise the same as the Claimant’s, then such a request would also have been made. In this regard, the Tribunal was assisted by documentary evidence in the Bundle which made it clear that employees across the Respondent’s organisation, who did not have the Claimant’s protected characteristic of race (and obviously would not have been in the same circumstances as the Claimant), were being chased to produce right to work documentation.

[154]Had the Tribunal been satisfied that the burden of proof had passed to the Respondent, then we would have been satisfied that the explanation provided for the Claimant’s treatment in requesting confirmation of her right to work was not that of her race. The proof of the right to work which the Respondent had on file had expired. It was a legal obligation to ensure compliance. Moreover, concerns had recently arisen from a CQC inspection elsewhere in the Respondent’s organisation which had uncovered a systemic problem which had led to a review of right to work documentation across the business which affected all of the Respondent’s workers and was not related to the Claimant’s race. The Tribunal was satisfied that a hypothetical comparator in the same circumstances as the Claimant but of a different race would have been treated no differently.

[155]The Claimant’s other complaint of direct race discrimination was that of replacing her on the rota for 9 June 2023. The Claimant was replaced on the rota for 9 June 2023 by Liz Orioye. The evidence of the Respondent had drawn the Tribunal’s attention to the fact that Liz Orioye is Black Nigerian. It needs to be recognised that the complaint is not one of having been treated less favourably than Liz Orioye. As such, the protected characteristics of the person who replaced the Claimant are not really relevant. In any event, there is nothing to suggest that Liz Orioye was a valid comparator given that, in order to be valid comparator, this would have involved there being no material difference between her circumstances and that of the Claimant (other than as to race).

[156]In the circumstances, the complaint is that the Claimant was treated less favourably than a relevant hypothetical comparator would have been treated. The Tribunal accepts that the Claimant was treated poorly by the Respondent. However, this is not sufficient on its own to establish race discrimination. The issue is whether she was poorly treated on the grounds of her race. For these purposes, the initial burden of proof is on the Claimant to prove facts from which the Tribunal could conclude that she was treated less favourably than someone in the same material circumstances of a different race would have been treated. The Tribunal was not satisfied that the Claimant had proved such facts from which we could conclude that the treatment in removing the shift from her for 9 June 2023 was linked to her race. - 32 -

[157]The Tribunal did consider whether the fact of the Claimant having been asked to produce her right to work documents on 9 June 2023 caused there to be facts from which the Tribunal could infer that the treatment was, at least in part, the result of the Claimant’s relevant protected characteristic of race. Obviously, the communication of this request was, in itself, a separate complaint of race discrimination. However, in considering that complaint, the Tribunal was similarly not satisfied that the Claimant had satisfied the initial burden of showing facts from which the Tribunal could infer that the treatment was because of race. As such, and having regard to the same reasons as relied upon by the Tribunal in considering that complaint at the initial stage of the burden of proof, the Tribunal was not satisfied that the fact of the Claimant having been requested to confirm her right to work provided a basis upon which the Tribunal could infer, in the absence of any other explanation for the treatment in question, that the treatment in replacing the Claimant on the rota was at least in part the result of the Claimant’s relevant protected characteristic of race.

[158]Having arrived at this conclusion, for the state of completeness, the Tribunal went on to consider the explanation for the treatment in question in replacing the Claimant on the rota. The Tribunal considered that the situation which arose was as a result of poor communication giving rise to confusion and poor management as well as the Claimant being perceived as a difficult employee, which had caused her relationship with operational managers to have deteriorated. The Tribunal was not satisfied that it was because of the Claimant’s race. Ultimately, the Tribunal concluded that a white employee in the same situation would have been treated no differently. Victimisation

[159]The first alleged protected act relied upon by the Claimant is that of the e-mail sent to Lynn Black on 19 May 2023. The e-mail was prompted by a telephone conversation with Lynn Black on the same date. Following the call, the Claimant sent the e-mail to Lynn Black complaining about the way in which Lynn Black had conducted the telephone call which she described as disrespectful, unprofessional and unacceptable. She said that she would be discussing the matter with her trade union and would wish to have a union representative present in any future meetings and wanted future communication to take place by e-mail unless it was an emergency. She also sought confirmation that “I will be resuming my shift at Windemere House tomorrow as initially agreed”. Other than the steps set out above, the e-mail was not seeking further action on the part of the Respondent. Indeed, the reference to the Claimant discussing the matter with her union representative suggested that the Claimant had not herself decided as to any next steps or how to proceed with the matter. Thus, it was not a formal complaint. Nor was it a complaint about discrimination.

[160]The Tribunal was satisfied that the e-mail makes no reference to discrimination or breaches of the Equality Act 2010 Act. It was a generalised - 33 - complaint precisely of the kind identified in Beneviste v Kingston University [2006]. The Tribunal was satisfied that the various complaints made in the email regarding the Claimant’s alleged treatment by Lynn Black did not amount to making an allegation that Lynn Black or the Respondent had contravened the Equality Act 2010.

[161]The Claimant’s first complaint of victimisation is that calling the Police amounted to victimising her for having sent the e-mail to Lynn Black on 19 May 2023. The Tribunal has already concluded that the e-mail did not amount to a protected act, so the complaint fails on that basis. In any event, the decision was ultimately made by Megan Duffy who based her decision on the factual circumstances of which she was aware at the time of making the call with the primary reason being that of the Claimant’s refusal to leave the premises of a service user when instructed to do so in circumstances where this was causing a disturbance. It was not because the Claimant had made an earlier complaint to Lynn Black. The Claimant’s case that this amounted to victimisation is inconsistent with the fact that the Police were called after several warnings, as a last resort. Had this been an act of victimisation, the Respondent would hardly have given the Claimant several chances to avoid the Police being called.

[162]Following the incident on 9 June 2023, at 23.54 pm on 9 June 2023, the Claimant e-mailed Megan Duffy, copied to Trish Cashmore and others, regarding the circumstances in which she had been required to leave Windermere House. She relies upon this as a further protected act the purposes of Equality Act 2010 section 27. She made it plain that she had left “in order to prevent the breach of peace not because you had the facts or legality to prevent me from work”. There then followed a number of paragraphs setting out her position that her documentation was in date, that she had forwarded a rota showing that she was due to work that weekend and that the advice apparently given by Lynn Black to the effect that she was unavailable work amounted to a deliberate attempt to mislead. She concluded by stating that “I believe you may have breached the contract, ignored the code of Ethics and violated my employment rights and I hope this can be fairly adjudicated should this matter get to court”.

[163]The Tribunal considered that the context of the e-mail was clear. It arose from the events on the night shift that day. The final paragraph of the e-mail which asserts breaches of contract and violation of employment rights is necessarily informed by the first paragraph of the document where the Claimant says that she left to avoid a breach of the peace and not because the Respondent had the “legality” to prevent her from attending work. It is clear from the evidence of the exchanges that night that the Claimant’s asserted objection was that she believed that the Respondent had their facts wrong. To that point it had not been suggested that any such decisions had been made because of race.

[164]Again, this second alleged protected act makes no allegation of discrimination. Whilst the e-mail referred to “violated employment rights”, that - 34 - is not a reference to the Equality Act 2010. Further, the context of this e-mail again shows that it was in the form of a generalised complaint and not an allegation of discrimination. The Tribunal was not satisfied that this amounted to a protected act. The Claimant was clearly complaining about her treatment with some just cause. However, she could not be said to be making an allegation (whether or not express) that the Respondent had contravened the Equality Act 2010. In other words, making a complaint without suggesting that the complaint was, in some sense, an allegation of discrimination does not amount to doing a protected act.

[165]The Claimant further complains that the matters raised by her in the meeting with Lynn Black and Trish Cashmore on 14 June 2023 amounted to a protected act. Again, the Tribunal was not satisfied that anything which was recorded in the note of the meeting could be said to have involved the Claimant raising matters so as to amount to a protected act. Complaining of being bullied is not, on its own, without more, a protected act. According to the note, the allegation of bullying was first made at a point in time when Lynn Black was setting out her version of events with regard to the issues in respect of the rota. The second occasion when the allegation of bullying was made, it was as a label being applied by the Claimant to the alleged conduct of Lynn Black in “not listening to me”. There is nothing in the recorded allegations of bullying to suggest that this was an allegation of treating the Claimant less favourably on the grounds of race or in some other way which contravened the Equality Act 2010.

[166]In so far as it was the Claimant’s case that she had said something in the meeting which was not recorded but which gave rise to a protected act, the Tribunal was not presented with clear evidence as to what was said, which was not in the note, which amounted to a protected act. Moreover, any such assertion was contrary to the evidence of Lynn Black and Trish Cashmore, which the Tribunal preferred, for the reasons set out in the findings of fact above.

[167]However, for the sake of completeness, had the Tribunal found that the acts relied upon as protected acts, had been protected acts, then we would not have been satisfied that the Claimant was victimised because of those communications through disciplinary proceedings been commenced against her on 2 April 2024 or through the final written warning which she received on 12 April 2024.

[168]The Tribunal also accepted the point made by the Respondent to the effect that, in so far as the Claimant appeared to advance a case that the disciplinary and appeal processes were flawed precisely because they did not consider the very complaints which the Claimant relied upon as protected acts, this was inconsistent with her victimisation case to the effect that she was subjected to detrimental treatment because of her protected acts.

[169]The reason for the Claimant’s treatment was that of the conduct which justified taking disciplinary proceedings and imposing a disciplinary sanction. The - 35 - conclusions of the investigation report were well-founded and, based on those conclusions, there was a disciplinary case to be answered which justified taking disciplinary procedures. The Tribunal was satisfied that the decision maker at the disciplinary hearing approached the case in an open-minded and impartial way, as demonstrated by the fact that he communicated his initial impression that the alleged conduct did not amount to gross misconduct and then, having satisfied himself, at the end of the process, that the Claimant’s conduct came within the scope of gross misconduct, nevertheless imposed a more lenient sentence than he might have done. Had he been seeking to victimise the Claimant, then it is more likely that he would have taken the opportunity to dismiss the Claimant. Outcome

[170]It follows that the outcome is that the Tribunal must dismiss the complaints of direct discrimination and victimisation but the Claimant’s complaint of unauthorised deductions from wages for the period 10 June 2023 to 23 April 2024 succeeds and the Respondent is ordered to pay the Claimant the agreed sum of £12,967.49. Approved by

[1]The Claimant’s complaint of unauthorised deductions from wages for the period 10 June 2023 to 23 April 2024, contrary to Employment Rights Act 1996 sections 13 and 23, is well-founded and succeeds. The Respondent is ordered to pay the Claimant the agreed sum of £12,967.49.

[2]The Claimant’s complaint of race discrimination contrary to Equality Act 2010 section 13, is not well-founded and is dismissed.

[3]The Claimant’s complaint of victimisation contrary to Equality Act 2010 section 27, is not well-founded and is dismissed. Approved by