Mrs E Shweihdi v Liverpool University Hospitals NHS Foundation Trust and Mr D Eccleston: 2410971/2023 and 2413746/2023
EMPLOYMENT TRIBUNALS
Case No 2410971/2023, 2413746/2023
Between
Mrs E ShweihdiClaimantLiverpool University Hospitals NHS Foundation Trust and Mr D EcclestonRespondent
Before
Employment Judge Johnson
Members
Ms H PriceMr R CunninghamMr S Lewinski (instructed by counsel) for claimantDate 8 May 2026
JUDGMENT
The judgment of the Tribunal is that:(1) The claimant’s complaint of less favourable treatment as a fixed-term employee contrary to section 3 of the Fixed Term is not well founded which means that it is unsuccessful.(2) The following complaints of being subjected to detriment by the first respondent for making a protected disclosure are well-founded and succeed:a. Allegation 9.1.2 in relation to the claimant being excluded from the candidate reserve list for the Trainee Biomedical Scientist (Generic) role later in 2023 but not in relation to the initial interview on 14 August 2023 when she came third and only two posts were available at that time.(3) The remaining complaints of being subjected to detriment for making a protected disclosure are not well-founded and are dismissed.(4) The complaints of victimisation are not well-founded and are dismissed.(5) The following complaints of harassment related to sex by the second respondent are well-founded and succeed: a. Allegation 16.1.2 (texts and messages sent between 27 July 2022 and December 2022); and,b. Allegation 16.1.6 (On 7 August 2023, to the extent that the second respondent embraced and kissed the claimant without her consent)(6) The remaining complaints of harassment related to sex are not well-founded and are unsuccessful.(7) The alternative complaint of harassment relating to unwanted conduct of a sexual nature is not well founded and is unsuccessful.(8) The claimant’s complaint of direct sex discrimination contrary to section 13 Equality Act 2010 is not well-founded and is unsuccessful.(9) The first respondent failed to demonstrate that it took reasonable steps to prevent the harassment of the claimant by the second respondent on grounds of sex and consequently its defence under section 109 Equality 2010 fails and it is liable for the successful complaints of harassment in (5) above, which took place in the course of the second respondent’s employment with the first respondent.(10) The case will now proceed to a remedy hearing listed for 2 days to determine the quantification of loss in the claimant’s successful complaints.
REASONS
[1]These proceedings arise for the claimant’s time working for the first respondent as a Laboratory Support Technician Associate Practitioner and which began on 4 June 2018. She remains employed by the first respondent but is currently on a period of sabbatical.[2]Several issues arose concerning her ongoing fixed term contract of employment and how it was funded. Additionally, she sustained an injury to her foot following an accident at work. While it is understood that this resulted in a personal injury claim being brought in the civil courts and which is not directly relevant to this case, the claimant then made a series of disclosures. She believes she suffered detriments consequently.[3]In addition to these matters, a further issue arose and this involved her relationship with the second respondent manager. She believed that she suffered a series of unwanted acts between 2022 and 2023, which amounted to sexual harassment. It is understood that the first respondent investigated and ultimately dismissed the second respondent for reasons of misconduct connected with these allegations.[4]The claimant presented her first claim (2410971/2023) on 15 October 2023 against the first respondent following a period of early conciliation and brought complaints of unlawful deduction from wages, breaches of the Fixed Term Workers (Prevention from Less Favourable Treatment) Regulations 2002 and detriments arising from the making of protected disclosures (whistleblowing), as well as victimisation under Section 27 Equality Act 2010 (EQA).[5]The respondent presented a response resisting the claim on 1 December 2023.[6]The claimant then presented her second claim (2413746/2023) on 31 December 2023 following a further period of early conciliation and this time against the second respondent as an individual. She brought complaints of sexual harassment under section 26 EQA and direct discrimination under section 13 EQA.[7]The second respondent presented a response resisting the claim on 13 February 2024.[8]Judge Allen considered that the two claims should be considered together on 19 January 2024. Judge Benson considered the case at a preliminary hearing case management on 5 March 2024 and identified the claims. The final hearing date was listed based upon the initial 8 day period that began from 14 July 2025.
Issues
[9]The list issues were lengthy and considered allegations relating to the first respondent and allegations relating to only the second respondent. The list was only agreed a week or so before the final hearing which meant that counsel had to review the list during the few days before the final hearing began. On day 1 of the hearing, the following summary identifies the issues under consideration: a) Less favourable treatment of fixed term employee (section 3 The Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (FTER)) – 4 alleged instances of less favourable treatment. b) Detriments of the grounds of protected disclosures (section 47B Employment Rights Act 1996 (ERA)) – 4 alleged disclosures and 10 alleged detriments. c) Victimisation (section 27 Equality Act 2010 (EQA)) – 4 alleged protected acts and 2 detriments but referring to more than 20 instances of this treatment. d) Harassment related to sex (section 26 Equality Act 2010) – around 50 alleged acts on unwanted treatment against the second respondent. (and arguing first respondent liable under section 109 EQA 2010) e) Direct sex discrimination (section 13 Equality Act 2010) – around 50 alleged acts of less favourable treatment on grounds of sex against the second respondent. (and arguing first respondent liable under section 109 EQA 2010). Note – time limits are asserted applying the relevant statutory provisions under regulation FTER 2002, section 48 ERA 1996 and section 123 EQA 2010.[10]Mr Lewinski addressed the Tribunal regarding the list of issues in relation to the section 43B ERA 1996 and section 27 EQA 2010 on Day 1 and at the beginning of Day 2 and being able to rely upon detriments in the alternative, relation to both complaints. Mr Menon objected and Mr Rushton raised no concerns given that the second respondent was not directly affected by this matter. The claimant presented her evidence based on the revised list of issues.[11]Consequently, the issues which the Tribunal has been asked to consider remain the same, save that the asserted detriments applied both to the whistleblowing and victimisation complaints. This did not have a material impact upon the time required for the deliberation of the case and it was in the interests of justice to allow this application made by the claimant. Evidence used[12]The claimant gave evidence on Day 2, 3, 4 & 5. Her evidence took longer than anticipated as she gave long answers and had to be reminded to answer the question. We accepted that to some extent, this was simply a reflection of how she collected her thoughts. We were also aware that English was not her first language, even though she could be very articulate. Moreover, we recognised that the nature of the subject matter in some of the complaints, meant that she found the process of giving and listening evidence in those matters to be quite upsetting.[13]Mr Menon finished his cross examination of the claimant on behalf of the first respondent, by Day 4 at around 11.30am. Mr Ruston then continued with cross examination on behalf of the second respondent until 11:09am on Day 7. There were additional breaks required because of the claimant’s difficulties and this combined with the initial delay arising from the preliminary matters discussed on Day 1 and Day 2, meant that insufficient time was available to conclude the case. It was therefore necessary to postpone the hearing on a part heard basis from this point and to relist it for a further period with the respondents’ cases being heard during several more days.[14]The first respondent (all evidence given during the second part of the hearing) as follows: a) Geoffrey Birkinshaw (Laboratory Manager within Non-Automated Clinical Chemistry since 30 November 2020 and claimant’s line manager for personnel matters). Note: unfortunately, although potentially available during the first part of the hearing in July 2025, by the time the second part resumed in November, Mr Birkinshaw had become unwell. Mr Menon confirmed that he was unlikely to be fit to attend the hearing. Consequently, the Tribunal was left with his signed witness statement and while of some evidential value, it was limited by the failure of Mr Birkinshaw to attend and give oral evidence under oath. b) Anna Milan (claimant’s line manager and consultant clinical scientist) – the claimant’s line manager. Note: Mrs Milan gave her evidence on day 2 and 3 of the second part of the hearing (effectively days 10 and 11 overall), with Miss Mulhaney being interposed on day 3. c) Ruth Pruden (Clinical Chemistry Service Manager since July 2020 and former line manager of claimant), on day 4 of the second hearing from 12:05pm, (day 12 overall). d) Dr Andrew Hughes (Section Supervisor of Non-Automation in Biochemistry) - on day 4 of the second hearing from 10:25am, (day 12 overall). e) Amanda Mulhaney (Assistant Associate Director of Nursing for Gastroenterology) – the first grievance investigating manager on day 11 (interposed during Ms Milan’s evidence). Note: Miss Mulhaney was only able to attend on day 3 of the second part of the hearing (day 11 overall) and gave her evidence in the morning being ‘interposed’ during Mrs Milan’s lengthy cross examination. f) Luke Byrne (Assistant Divisional Director of Nursing: Sexual Health and HIV since February 2022 and investigating manager of complaints raised by claimant from 11 October 2023) – gave evidence from 11:40am until 13:40pm, on day 5, (day 13 overall). g) Yvonne Malkin (HR Business Partner with first respondent since 2022) – gave evidence on day 4 of the final hearing at 15:35pm and continued until 11:35am on day 5, (days 12 and 13 overall).[15]The second respondent did not call any witnesses and consequently, only David Eccleston (former Head of Modernising Scientific Careers at LCL for the first respondent). Unfortunately, Mr Eccleston was unable to afford the continued support of his solicitor and counsel beyond the first part of the final hearing in July and was unrepresented when he gave his evidence in November 2025. He gave his evidence from 2:05pm on day 5 and continued until 4pm on day 6, (days 13 and 14 overall).[16]Documents could be found in 3 lever arch files plus a supplemental file of some 1,624 pages including the proceedings, (claim form, response and grounds of resistance and Tribunal case management orders), contractual documents, policies and procedures and numerous items of correspondence relating to the issues.[17]Additional documents provided by the claimant were contained in a separate folder of 215 pages. It contained disputed documents and was named ‘The Residual Bundle’.
Findings of fact
[18]The parties should note that the Tribunal’s findings of fact do not seek to deal with every point where the parties disagree, simply what is relevant to the issues which the Tribunal is being asked to consider. If the discussion of an incident or point is not referred to within these findings, it does not mean that it has not been considered by the Tribunal, simply that it is not relevant to the issues and the findings that we are required to make.[19]In terms of the findings that we make, the Tribunal has reached its decision on what it considers to be on balance of probabilities the most likely way/reason in which an incident arose. The first respondent[20]The first respondent (‘The Trust’), is a large hospital Trust based at several sites within Liverpool. It has a large laboratory service supporting the hospital and related health activities and which is called Liverpool Clinical Laboratories (LCL). It is understood that LCL employees are in the main, employed by the Trust and at the relevant time, LCL was understood to employ around 550 staff. The second respondent[21]The second respondent David Eccleston was until his dismissal, the Head of Modernising Scientific Careers at LCL for the Trust and had occupied this role since 2013. He was a long serving NHS employee with service in various hospitals across the Merseyside area over many years. The claimant and her job role[22]The claimant was a graduate in biochemistry and applied for a role with LCL in 2018 which was a post that had recently been created. It was funded by a research body specialising in a rare genetic condition known as Alkaptonuria, (AKU for short). The National Alkaptonuria Centre (known as NAC) provided funding to the Trust, and some these resources were allocated to LCL so they could carry out testing/laboratory work supporting the AKU research.[23]The Tribunal accepted that internal discussions had taken place between LCL managers including Anna Milan (claimant’s line manager and consultant clinical scientist) regarding allocation of these AKU resources and the implications upon staffing. The result was a decision to fund a fixed term Band 4 Support Technician role for a period of 36 months with the potential for a further extension of up to 2 years. This meant that the role would be guaranteed on a fixed term basis for 3 years, but which with extensions the contract could run for a period of 5 years in total.[24]We accepted that while the NAC did not dictate who within the Trust would be allocated to AKU work, any jobs allocated by the Trust to support AKU would be expected to exclusively support those activities. In an email sent on 24 January 2018 by Ms Milan to management colleagues, she explained that the existing Blood Science staff would be unable to deal with the AKU work by way of secondment and/or additional duties. This meant that a new fixed term post would need to be created. In effect it would be a post ring fenced to work solely on that relating to the ‘client’, the NAC.[25]The role was advertised as a Band 4 Support Technician, 37.5 hours per week and fixed term for 36 months. It described the successful applicant joining the Alkaptonuria Research Group and being involved in supporting assay development within that field. The claimant was interviewed and appointed to the role.[26]The claimant commenced work on 4 June 2018. The Trust’s offer letter dated 11 May 2018 described the claimant as an Associate Practitioner and with the fixed term contract being confirmed as 36 months. The Trust had used the generic job description for Band 4 Lab Support Technicians and within its key responsibilities it included reference to rotating between different parts of the lab and the possibility of being required to work out of hours. The contract of employment described the job description as being guidance as to what the claimant’s role was. We accepted that this meant it was not a prescriptive part of the contract and might vary in detail should a particular role require it.[27]The claimant worked with two colleagues Trina Giokas and Matthew Hurst (Band 4 Associate Practitioners on permanent contracts). They worked a five year programme completing a HCPC portfolio and which began in 2019 and completed in late 2024. It was devised for those working in biochemistry with degrees in non-related subjects or without degree qualifications. They were provided with day release from work, 1 day each week so that they could attend training and were allowed rotation on automated and non-automated testing equipment.[28]The claimant held a relevant biochemistry degree and only worked on the non-automated processes. We understood this to be a more skilled activity than working on automated processes. The claimant was dedicated to work for AKU during her 37.5 hours working week. She was not required to complete HCPC portfolios. However, if she wished to complete these portfolios as part of her career development, she could have done so outside normal working hours and would not have been prevented by management from doing so.[29]We accepted that the claimant’s training appeared unstructured, but we did accept she attended seminars, webinars, and was funded to complete an MSc. We reminded ourselves however, that this was a ring fenced post dedicated to AKU research, whereas Giokas and Hurst were in training posts which were structured to allow them to achieve competencies which the claimant already had, but which they did not.[30]The Tribunal acknowledged that during the material time, Covid 2020-2022 would have had a serious impact not only for the Trust and its patients, but also its staff. The claimant developed Covid during this period and ongoing symptoms which she believed amounted to long Covid. She did suffer periods of sickness absence relating to this virus. Progression of the fixed term contract and the accident at work[31]The claimant’s contract was renewed in April 2021, June 2021, April 2022 and August 2022. It expired on 31 July 2023. She completed 5 years of continuous service. Ms Milan emailed her manager Milad Khadir on 7 July 2021 and expressed concern about the claimant being in a state of uncertainty due to her fixed term contract status. Indeed, she informed him that she was concerned about losing the claimant to another employer.[32]The claimant’s ongoing post Covid symptoms caused her to find full time working more challenging. She made a flexible working request on 1 April 2021 to reduce her hours to a 0.8 fraction, (of a 1.0 full time contract). The Trust accepted the request which would be limited for 1 year. However, it continued beyond 31 March 2022. From October 2022, the claimant requested restoration to full time hours. We accepted that there was some confusion regarding this request and Ms Milan gave credible evidence that Kellie Malone who was new to the management team responsible for LCL had not appreciated that the claimant had been originally contracted to work a 1.0 full time contract dedicated to the AKU work for the NAC. Ms Milan intervened in December 2022 and informed Ms Malone that the claimant could have her hours returned to 1.0.[33]The claimant was not expected to work overtime as part of the AKU contract. However, she was permitted to access the NHS Bank to volunteer for other Band 4 work that she was competent to do. We did not find that this caused the claimant any obvious tax disadvantages compared with colleagues and she would have been taxed in the normal way, based upon her total income each tax year.[34]On 22 June 2022, the claimant sustained an injury to her left foot when she was mixing formic acid and mixing it with methanol using a pipette. Unfortunately, some of the acid splashed onto her foot causing burns and which required medical treatment. She brought a personal injury claim against the Trust and on 18 March 2025, Deputy District Judge Edwards in the Liverpool County Court heard this civil claim. In a transcript of the judgment, which was included within the bundle, they determined that liability be assessed at 100%. An award of £8,000 was determined in respect of pain suffering and loss of amenity based upon the Judicial College Guidelines and with special damages having been previously agreed by the parties. Grievance 1 (3 October 2022) (pp618-625)[35]The claimant was unhappy with how colleagues had dealt with her accident at work and the way in which the accident was reported. She said that she felt unsupported and not trusted by managers when she suffered ill health absences. This grievance was very clear in the way it described her concerns about health and safety management relating to her accident. However, there was minimal reference to protected characteristics within the EQA 2010. In a sentence she made a brief reference to the role her ethnicity and gender may have played in her treatment but failed to make any specific complaint concerning how either or both characteristics were relevant and why it affected how she had been treated.[36]Amanda Mulhaney was eventually appointed as the investigating manager for the grievance process, but this did not take place until 23 January 2023. She was identified as being a suitable manager because she worked for the Trust but outside of the LCL structure.[37]The claimant did prepare a statement dated 12 December 2023 which became her second grievance dated 17 January 2023 and is referred to below.[38]The Tribunal found Ms Mulhaney’s evidence to be uncertain and involved many answers where she placed a reliance upon HR advice, she did not know or she could not recall. However, upon reflection and having considered the available witness and documentary evidence as well as the time that had elapsed since these events took place, we found her evidence to be credible.[39]The investigation process was lengthy and as is often the case, took far longer to complete than would normally be expected. However, we accepted that the claimant had to be interviewed, followed by the interview of several witnesses. With diary clashes between Ms Mulhaney and the interviewees and the added difficulties arising from annual leave and sickness absences, the investigation ran from February to May 2023. However, the actual grievance outcome was sent by letter to the claimant on 10 August 2023.[40]The claimant’s grievance was partly upheld in relation to her health and safety concerns, determining that a review of First Aid boxes should take place, that management had delayed completing internal and RIDDOR accident reports, that there was poor line management with the claimant’s supervision being split between Ms Milan and Geoffrey Burkinshaw and that training was required relating to management of sickness absence. Grievance 2 (17 January 2023) (pp672-680)[41]The claimant submitted a second grievance on 17 January 2023, but attaching the statement referred to above dated 12 December 2023. Essentially, it related to Andrew Daivson and focused upon a statement that he had given during the internal investigation into the claimant’s accident at work in June 2022. It referred to health and safety failures regarding accident reporting but was related to grievance 1 rather than being a new and different complaint. No reference was made to the role the claimant’s protected characteristics may have played in relation to this complaint.[42]Ms Mulhaney referred to this second or supplemental grievance in her witness evidence. On balance, while evidence was limited concerning this matter, we accepted that this grievance was dealt with as part of her investigation of grievance 1, given the subject matter involved and the relationship between the two complaints. Grievance 3 (13 March 2023) (pp754-758)[43]This complaint was brought because the claimant had concerns regarding a redeployment meeting which had taken place. It was rambling and unfocused, but this also appeared to arise from some confusion on the part of management relating to the ending/reduction of AKU funding and how this affected the claimant’s fixed term contract and employment status.[44]There was also an issue regarding an alleged failure to reinstate the claimant to full time working in late 2022. The claimant referred in her covering email enclosing the grievance to an ‘underlying discriminatory theme’ but failed to be more specific concerning the role of protected characteristics and what acts of discrimination had taken place.[45]Rachel Pruden responded to the claimant on 14 March 2023, which on this occasion was helpfully done without delay. She said that she needed to speak with Yvonne Malkin from HR and Kellie Malone regarding the NAC/AKU funding.[46]Ms Pruden identified from speaking with Ms Malone that the NAC funding had reached a stage where the funding for work being carried out by the Trust at LCL was being reduced. This was because the need for the LCL laboratory services was becoming more limited. This meant that AKU dedicated work in LCL where the claimant worked, would reduce from 5 days per week to 2 days per week. This would naturally impact upon the claimant’s fixed term contract which had been renewed several times but remained focused upon AKU work.[47]There was an agreement reached with Ms Malkin that the claimant should be moved to a permanent role as a Band 4 grade within the Chemistry department of LCL. This eventually took place on 1 August 2023 when the fixed term contract (which ran for 3 years plus 2 extended years), finally expired.[48]The Tribunal found that the evidence was unclear concerning the process used by management regarding this grievance. However, in practical terms and on balance, we accepted that they dealt with the claimant’s primary concern about her fixed term status, even if this did take several months to resolve. As mentioned above, the claimant progressed from her existing fixed term contract to a permanent Band 4 role on 1 August 2023. Grievance 4 (5 June 2023) (pp820-828)[49]This complaint was raised by the claimant because of her concerns regarding the Trust’s ‘ESR records’, which were understood to be personnel records for employees. The claimant was concerned that they had not been updated to identify a restoration of her full time contractual hours. No reference was made to any legal or health and safety failure nor in relation to the claimant’s protected characteristics.[50]Ms Malkin met with James Dawson the Trust’s Associate Director of People on 29 June 2023, and he in turn met with the claimant. Ms Malkin then updated the Mr Dawson on 16 August 2023 because the claimant had proceeded to ACAS and begun early conciliation. Reference was also made by her to the recently declared allegations of sex harassment against the second respondent Mr Eccleston. Allegations following the making of these four grievances[51]In early 2023, the claimant was identified as coming to the end of her 5 year (as extended), fixed term contract with the Trust. Ms Malkin arranged a meeting with the claimant on 8 February 2023 and in the invitation letter Ms Milan said: ‘Further to our brief conversation and as we are all aware, your fixed term contract is due for renewal on 31st March 2023 and we would like to discuss the options, in a face-to-face meeting on 8th February 2023. This letter is to give you the required weeks’ notice for the meeting. The meeting will be attended by Geoffrey Birkinshaw (Line Manager), Yvonne Malkin (HR advisor) and myself (Clinical Lead for NAC analytical facility) and you are invited to bring along a union representative or a colleague/friend’. The meeting concludes with a paragraph confirming details of the venue and the time of the appointment, (p723).[52]At the meeting on 8 February 2023, Ms Milan, Mr Burkinshaw, the claimant’s union representative and the claimant were present. An email sent on 8 February 2023 by Ms Milan to the claimant confirmed what had been said during the meeting. There was a recognition that the fixed term contract was coming to an end and the claimant was offered a redeployment opportunity of a secondment limited to 5 ½ months. The claimant was only given 48 hours to consider this proposal, and it was explained that if she did not accept this offer, her fixed term contract would run its term until the end of March 2023, when it would terminate.[53]The Tribunal accepted that this scenario was not an attempt by the Trust or its managers to threaten the claimant’s job security. It was actually an attempt to offer the claimant an alternative role so that her employment with the Trust could continue. The circumstances were such that the existing post had limited time remaining, and the claimant was provided with an alternative role on a first refusal basis before it was about to be put out for general advertisement.[54]The Trust had devised a Generic Trainee Band 5 post during 2023, and they were advertised during the summer of that year. The claimant applied for one of these posts and she attended an interview on 14 August 2023. The Trust’s documentary evidence was limited and did not include copies of interview score sheets or relevant letters which could have been redacted in relation to the other candidate’s names.[55]However, we accepted that although the funding for this post had initially been intended to support 5 posts during this interview ‘round’, by the time of the interviews in August 2023, only 2 posts were funded and available. There were at least 4 candidates for the posts and may have been more. But we accepted it involved a competitive interview process involving a panel of 5 and one of the members was Mr Eccleston, the second respondent. The claimant performed sufficiently well to be scored as the third best candidate, but with only 2 posts available, she was retained as ‘first reserve’ should one of the successful candidates not proceed or more funding became available subsequently. This was confirmed in an email sent by Ms Malkin to Christine Harper on 1 November 2023, (p997).[56]The reason for Ms Harper asking this question was because funding for one further Trainee post had become available and there was a series of emails between her and Ms Malkin. However, James Dawson, the Deputy Head of HR appeared to become involved. The email exchange concluded two weeks later on 15 November 2023, (p1151-2): [Ms Harper to Ms Malkin at 09:10], ‘I’ve had a further update from Andrew [Bamber]. He has been in talks with James Dawson and has asked me to refer you to him. ‘I hope this makes sense’. [Ms Malkin to James Dawson at 9:25], ‘Hi James, this is in relation to Ella and the trainee BMS role ‘When Chris [Harper] has spoken to Andrew after my conversation with her he has just referred us both back to you! ‘Let me know if you need anything further.’[57]The claimant did not get offered this role despite additional funding being available and her being first reserve. The Tribunal was surprised Mr Dawson not called by Trust as a witness and did not explain why this situation arose. However, despite additional funding becoming available and discussions taking place on 1 November 2023 about informing the claimant, we accepted that she was not offered this job The allegations involving the second respondent – Mr Eccleston[58]We now turn to the involvement of the second respondent, Mr Eccleston. During 2019, Ms Milan had suggested to the claimant that she might want to speak with Mr Eccleston in his role as Head of Modernising Scientific Careers at LCL. This was because he could help with the completing a HCPC portfolio, which was outside of the job description for her fixed term AKU supporting role.[59]The claimant eventually approached Mr Eccleston in January 2022, seeking his assistance. Having considered the available evidence, we found Mr Eccleston to be supportive and the claimant and him had a good rapport. He could be frank about how management worked and how the claimant could advance her career with the first respondent Trust.[60]He did ask for her private mobile phone number, and he met with her on many occasions. This was on an informal mentoring basis within the Trust’s Royal Liverpool Hospital site in places such as cafes. We accepted that the claimant was not uncomfortable with these meetings. She was unhappy in her role and wanted to progress. Mr Eccleston was a good sounding board and was available to discuss work related matters.[61]Unfortunately, over time, a series of text and WhatsApp messages began to be exchanged, but primarily coming from Mr Eccleston. They seemed to begin from 27 July 2022 and while initially they amounted to friendly communications, they escalated to point where they became inappropriate and went beyond the mentor/mentee relationship.[62]While it is not necessary to consider every single message within the bundle or every single allegation, they form a significant part of the claimant’s allegations of harassment. It is therefore necessary to consider a number of them within the reasons to this judgment.[63]Allegation (a) was a text message sent by Mr Eccleston on 27 July 2022 and stated, ‘Hi Ella, thanks for texting. When I lost my contacts yours was one of the numbers I thought hell I’ve lost that. I’m ok at my friends farm in Wales with my brother. home shortly. Missed you. i’m in tomorrow. U ok’. While we found this first allegation to involve a somewhat overly friendly message, we considered it not to be inappropriate. It was a response to the claimant’s previous friendly message.[64]However, we considered that the next allegation (b), involved a message sent on 12 August 2022 and which escalated things by stating, ‘Hi Ella…You getting ready for your holiday, I will miss you or shouldn’t I say that’. In itself, the first part of the message is innocuous, but it is the second part with the words ‘…shouldn’t I say that’, which gives the impression of some sort of desire on Mr Eccleston’s part. A reasonable manager supporting a more junior member of staff would know that to be the case and we concluded that Mr Eccleston was communicating to the claimant an interest in her that went beyond a normal working relationship between colleagues.[65]A similar message construction was used in allegation (d) on 22 August 2022 when Mr Eccleston stated in a text, ‘Ok, Lovely to see you. Your dress wasn’t to tight (sic)x I won’t say anymore because I will get into trouble.’ We acknowledged Mr Eccleston’s evidence that the reference to a tight dress was an ‘in joke’ between them regarding a colleague whom they believed tended to wear clothes that were too tight. However, the reference of getting into trouble was another flirtatious comment about how he viewed the claimant physically.[66]Allegations (e), (f), (g), (h), (i), (j) continued a theme of Mr Eccleston’s attraction towards the claimant in varying ways, some which were more inappropriate than others. It is not necessary to repeat them all. However, matters escalated further when a series of texts or messages relating to baths was raised.[67]A message was sent by Mr Eccleston to the claimant on 20 September 2022 which included the sentence, ‘Try a hot bath to take the aches away, if I’m allowed to say that’. Like allegation (d), it is the second half of this sentence which was unfortunate and which transformed a throwaway comment into something more flirtatious, especially when considered in the context of the previous comments.[68]There is no need to dwell upon allegation (l), but on 23 September 2022, allegation (m), Mr Eccleston messaged the claimant to say, ‘can still picture being in a bath with you x’. This confirmed what was on Mr Eccleston’s mind three days earlier when he first referred to baths was visualising being in the bath with the claimant, hence the questioning if whether he could suggest that or not. The Tribunal concluded that Mr Eccleston was ‘chatting up’ the claimant.[69]This did not cease and the next day (24 September 2022), Mr Eccleston stated in another message to the claimant, ‘I would do the gentlemanly thing and offer to keep you warm in the bath as you have a cold x’, (allegation (n)).[70]Allegation (o) involved a further message stating that the claimant ‘looked great’, but it was the second allegation (p) sent later the same day, (26 September 2022) and which said, ‘Good. Still happy to warm u up x’. We considered that this was an ongoing referral to the bath proposal made several days earlier. None of the claimant’s replies to these messages could be encouraging Mr Eccleston to continue down this line of thinking.[71]Allegations (q), (r), (s), (t) & (u) between 26 September and 4 October 2022 continued to refer to Mr Eccleston missing the claimant. On 5 October 2022 (allegation (v)) however, in two messages to the claimant he said, ‘Hi Ella, don’t feel you have to come in on Friday because of me, you deserve your day off. I will just let my imagination go until I see you x’, and ‘My imagination will still run away from me.’ These messages were clearly suggested Mr Eccleston’s mind expressing thoughts about the claimant and him involving intimacy and fantasies. The claimant tried to reply with humour by replying ‘hahahahaha’ and deflecting Mr Eccleston onto a story about driving an automatic car.[72]In allegations (w), (x), (y), (z), (aa), (bb), (cc), (dd) from 10 October 2022 to 17 November 2022, there were a series of messages which individually were in isolation very friendly, but made reference to missing the claimant and in the context of the overall series of the messages, gave the impression of Mr Eccleston demanding the claimant’s attention and wanting to be with her. On 28 November 2022, he did state in allegation (ee), ‘I would suggest taking you for a coffee this week but get the feeling you don’t want to be alone with me x’. This might have revealed a degree of insight and reflection upon Mr Eccleston, but the next message sent the same day stated, ‘Ok missed talking to you, even if I may say the wrong things at times x’ and ‘Not even hot baths, I could get shot for what I think x’. Unquestionably, this was highly inappropriate and continued with what had become a bath related obsession on Mr Eccleston’s part, (allegation (ff)).[73]There were further very forward messages between 29 November 2022 and 18 February 2023 (allegations (gg) to (jj)), with a return to the bath references in allegation (kk) where he stated in a WhatsApp on 20 February 2023, ‘So I will cross off the chat in a hot bath and find a room’. In a variety of messages and recordings on 20 February 2023 and then on 3 and 7 August 2023 (allegations (ll), (mm), (nn) and (oo)), further inappropriate messages were sent by him, and it is not necessary to consider them in detail.[74]There were a series of allegation in 6.1.3 to 16.1.7 between late November 2022 which involve things said or done during meetings and which we will consider in the discussion section below. Not all are accepted because of the limited supported evidence and/or the context in which they took place. However, we accepted that immediately before the claimant’s interview on 7 August 2023, Mr Eccleston hugged and winked at the claimant, though he did not kiss her as alleged.[75]It was important to consider Mr Eccleston’s evidence which he gave in cross examination to Mr Lewinski. Inevitably, he was unable to deny that those allegations taken from messages and recordings occurred and they were difficult to dispute. He did, however, focus upon their context and what was being shared between the claimant and him. Our conclusion, however, was that he did not give credible evidence as to why he said what he did. Indeed, he gave curious interpretations of what was meant by his messages and that he was simply being ‘friendly’ and ‘innocuous’ in a way that he would be with anyone he supported.[76]A particular example of this was his explanation given regarding the ‘bath’ references. He said that this was a reference to rugby slang ‘go and have a bath’ and did not suggest anything intimate. It was an explanation that he repeated many times in cross examination. The panel agreed with Mr Lewinski that there is a sporting reference ‘to have an early bath’ when someone is substituted or given a red card. What Mr Eccleston was saying was something different and more suggestive and did not form part of any commonly used rugby or other team sport saying.[77]It is also important to consider what the claimant was saying at the time in her replies to Mr Eccleston as she did send many messages to him as well. It is not necessary to repeat the messages here, but we do not find that she sent anything that might encourage Mr Eccleston’s behaviour and leave him feeling that she was seeking intimacy with him. She did not ‘call out’ his behaviour until after the August 2023 interviews but did on occasion say that there should be no hugs between them. We concluded that this was sufficient warning that he should not be tactile with the claimant when they met. In any event, as a manager, Mr Eccleston should have known the difference between appropriate and inappropriate behaviour without expecting the more junior recipient to tell him when he had overstepped the mark.[78]We also recognised that the claimant described Mr Eccleston as being kind and genuine about her injury. However, she also said ‘I tried to engage with him…that was a price to pay for the portfolio.’ Additionally, she said in evidence, ‘I want him to be part of presence at work because of my portfolio.’ Defending her replies to the messages, she said, ‘my behaviour is no different in the messages [I was a] person pretending because he knows I want the portfolio. I was humiliated.’ This meant that she believed she needed to indulge Mr Eccleston because she wanted a Trainee opportunity and flattering his ego to some extent would allow him to use influence to secure the Trainee role.[79]The Tribunal concluded that Mr Eccleston did genuinely want to help the claimant. But he did not consider there was anything wrong flirting and making suggestive comments to the claimant in a way that left her feeling that she was being ‘chatted up’. As will be discussed below, his comments in allegation 16.1.5 where he appears to scoff at HR when they asked to speak with him about a previous complaint, represented a lack of self awareness and vanity regarding his status within the Trust. He did appear to have some autonomy within LCL and the Trust more widely as a very experienced NHS manager. He had clearly not reflected upon his behaviour in relation to an earlier complaint that arose during Covid and to which this allegation relates. Whether or not it was as serious as the allegations in this case, having been made aware of such a complaint, a reasonable person would have questioned whether they were acting in a way that might be misunderstood or which might upset someone.[80]The claimant did discuss Mr Eccleston in a WhatsApp message with a friend who was anonymised but described as a ‘Senior LCL Colleague’ during the period of 9 August 2022 to 11 August 2022. Copies of the WhatsApp messages could be found in the bundles at pages 604 to 609. The friend had obviously been informed of the claimant’s issue regarding Mr Eccleston. The friend’s tone was light-hearted and lots of emojis were used within the messages indicating a great deal of hilarity regarding what was said.[81]On 9 August 2022, the claimant said ‘…I am just worried about this trainee thing. I just want it to work and he [Mr Eccleston] is making me feel [grimacing emoji used] really?’ It appeared to relate to the claimant’s concerns regarding the Trainee roles and Mr Eccleston being a member of the panel. The claimant described her concerns and Mr Eccleston looking at her. The claimant’s friend was recorded as taking the matter less seriously and made a few humorous comments about responding in kind to him. The claimant said ‘…if I upset him now which I am close to I might need to worry then.’ She added that he texts her every day and that he ‘…is creeping me out now.’ Her friend told the claimant not to reply and if challenged state she is too busy to message. The claimant kept responding about how she would reply contrary to her friend’s suggestion and how she would talk about things like mowing the lawn or meeting with friends.[82]These exchanges continued on 11 August 2022, and that Mr Eccleston was asking to meet up. Her friend suggested that the claimant always mention her husband, that Mr Eccleston’s approaches were cultural inappropriate for her in conversation and suggested that the claimant was overthinking this matter. However, significantly the claimant messaged saying the following, ‘…I started to feel a sinking feeling in my heart that I couldn’t sleep last night…I didn’t have the courage to say anything. I felt way beyond uncomfortable. He is definitely sees me in a sextual (sic). I don’t like that.’[83]As we have discussed already in these findings above, the claimant and Mr Eccleston remained in contact by message and meeting from time to time. The claimant felt unsupported by her line management and was keen to be appointed to one of the Trainee Biomedical Scientist (Generic) roles which Mr Eccleston was involved with.[84]She engaged with James Dawson in HR regarding her initial grievances in June 2023 and in her email to him dated 16 August 2023 recalled him reassuring her that her grievances, personal injury claim and ACAS early conciliation would not prejudice her application for the Trainee role. She secured a permanent appointment for her existing role on 1 August 2023 but was unsuccessful at interview for the Trainee role a few days later.[85]In this email to James Dawson, she opened by stating that it was sent in the attempt to allow the first respondent to consider her claim and to explore ‘…all amicable options that could avert the need for further escalation’, p851-2). However, she also referred to Mr Eccleston (she uses the term ‘the senior colleague’). She suggested that he had been responsible for ‘me to secure the trainee position in exchange for sex…’ and argued that she suffered trauma in December 2022 and was only able to report the incident to her GP and a close friend, but could not share the incident with her lawyer, union rep or family. Based upon the evidence available, we were not persuaded that this was actually the case. Indeed, the claimant remained capable of asserting her position raising grievances, bringing a personal injury claim and engaging with ACAS.[86]Following the interview in August 2023, where the claimant was not appointed to one of the two available Trainee roles, she claimant eventually confronted Mr Eccleston about his behaviour. It is helpful to refer to the entirety of her email sent to him on Sunday 20 August 2023 at 9:57am, which said: ‘Dear David, ‘You have crossed the line so many times in your text messages. What you said to me in person on 2nd Dec 2022 overstepped all of your previous innuendo. I asked to stop being inappropriate in Feb 2023. I have had to undergo treatment for the shock and distress that your inappropriate conduct has caused me. ‘I am pleased to have not been successful in my recent interview. You made your intentions and expectations explicit in December. You went ahead and hugged me before the interview, winked at me during the interview and sent me yet another inappropriate text message after the interview. ‘I will not be exploited by you anymore under the false premise of mentorship and support for HCPC registration. You are well aware of how many grievances I’ve had to file against various seniors. You knew how isolated and distressed I have been throughout the past year. Regardless of my personal circumstances during this time and the outcome of my interview, you continue to try and take advantage of me by proposing more meetings about my portfolio and the next round of trainee positions. I will not tolerate such predatory behaviour. You have compromised my safety, well being and dignity at my work place. Your sexual advances, verbal, written or physical were never welcome. The only difference is that I am no longer petrified by your seniority. As my grievances are being upheld and pending any commencement of my employment tribunal, I will report any further harassment from you directly to the police. For the avoidance of doubt, you are asked to leave me alone. Any communication will be the subject of internal grievance and subsequent legal proceedings’, p853).[87]While Mr Eccleston had engaged in inappropriate communications with the claimant, we were not persuaded that during his time in 2022 and 2023, he was engaging with her in the transactional way that she suggested, i.e. Trainee job in return for sex. These comments in the email sent to Mr Dawson on 16 August 2023 amounted to hyperbole and were unnecessary given that in any event, Mr Eccleston had clearly behaved inappropriately in relation to his messages to the claimant.[88]In considering these allegations, the Tribunal recognised that interactions of this nature can be complicated and not simply a case of a malevolent harasser and a victim who is deprived of any agency. The claimant wanted to engage with Mr Eccleston as she believed he could ensure that she secured a role that she was interested in but confirmed that at times she enjoyed his company. She was undoubtedly unhappy with his inappropriate behaviour but despite receiving good advice from a senior female colleague and being able to bring several grievances about several staff, she failed to make any attempt to complain about Mr Eccleston until it became clear he could not secure the role she so wanted.[89]The implication was that the claimant made a choice concerning when she decided to ‘call out’ the behaviour and did so in a forthright and eloquent way in her email sent to Mr Eccleston on 20 August 2023. We did not accept that it arose from a feeling of security arising from her progression to a permanent post, which happened before the interview at the beginning of August 2023. On balance, our finding is that it was her lack of success at the interview on 14 August 2023 which emboldened the claimant and her letter expressly referred to a feeling of liberation arising from not getting a role she associated with Mr Eccleston. The reality was however, that Mr Eccleston was only part of the decision-making body for the role and far less influence than the claimant attributed to him.[90]Nonetheless, regardless of the claimant’s delay in complaining about Mr Eccleston, no person seeking the support of a colleague (whether more senior or not), should have to receive the prolonged series of messages in the style sent by him. Mr Eccleston as a senior and long serving manager, should have had the decency, respect and good sense to know when he was crossing a line. He only has himself to blame for the events which followed, and which ended his lengthy NHS career not far from his likely retirement date.[91]To conclude, on 31 August 2023, Craig Evans informed Mr Eccleston that the claimant had made allegations of a serious nature involving sexual misconduct and that he would be suspended while an investigation took place, (pp1061-2).[92]An investigation by Luke Byrne (who at the time was the Assistant Director of Nursing: Sexual Health & HIV) took place. It is not necessary to consider this investigation in detail, but it resulted in a disciplinary hearing to consider serious and inappropriate behaviour allegations against Mr Eccleston. The allegations were considered proven and treated as gross misconduct resulting in him being summarily dismissed, despite his imminent retirement date. No appeal against dismissal was made by Mr Eccleston.[93]The claimant complained to Merseyside Police about Mr Eccleston’s behaviour. This resulted in a decision of no further action being given on 8 February 2024, (p1024).[94]In the meantime, the claimant offered her resignation on 16 January 2024. However, following a meeting with Rebecca Heath of HR and Ms Pruden, she withdrew her resignation and requested career break which was granted and began on or around 19 February 2024. A two year break was agreed in order that the claimant could focus upon full time postgraduate studies. It is understood that the claimant remains employed by the Trust, (pp1014 to 1018). Law The Fixed Term Employment (Protection from Less Favourable Treatment) Regulations 2002 (FTE Regulations)[95]The FTE Regulations provide that fixed-term employees are not to be subjected to less favourable treatment than similar employees in relation to their terms and conditions of employment unless this can be objectively justified (reg 3(3)(b)).[96]This includes a right not to be treated less favourably in relation to service qualifications, training opportunities and the opportunity to secure permanent employment with the employer (reg 3(2)). In determining whether a fixed-term employee has been treated less favourably, comparison must be made with a comparable permanent employee.[97]According to Slade J in Manchester College v Cocliff UKEAT/00 the correct sequence in which to apply these rules is:(a) were the claimant and comparator engaged on the same or broadly similar work?(b) was the less favourable treatment on the ground that the claimant was a fixed-term employee?(c) if the answer to (2) is 'yes', was the treatment justified on objective grounds?[98]In Department for Work and Pensions v Webley [2004] EWCA Civ 1745 an employee on a succession of fixed-term contracts was refused further engagement at 50 weeks in compliance with the employer's policy; lacking the year for unfair dismissal she tried to claim 'detriment' under the Regulations (on the basis that this would not have happened to a permanent employee). Aware that a decision in her favour could have had the effect of attacking the very existence of fixed-term employment, the Court of Appeal held that being put on to a fixed-term contract which then expires cannot in itself be 'less favourable treatment'. Whistleblowing Legislation[99]The law relating to the protection of whistleblowing in the context of employment legislation is primarily found within the Employment Rights Act 1996 (1996 c 18), at Part IV (and within Part X in relation to unfair dismissal complaints involving protected disclosures). Section 43B - Disclosures qualifying for protection[100]Section 43B(1) provides that disclosure is protected where there is(i) a disclosure of information,(ii) which, in the reasonable belief of the worker making the disclosure,(iii) is made in the public interest and(iv) tends to show one or more of the following— (a) that a criminal offence has been committed, is being committed or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, (d) that the health or safety of any individual has been, is being or is likely to be endangered, (e) that the environment has been, is being or is likely to be damaged, or (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed.[101]When considering whether a disclosure is protected, it is immaterial whether the relevant failure(i) occurred,(ii) occurs or(iii) would occur in the United Kingdom or elsewhere, and(iv) whether the law applying to it is that of the United Kingdom or of any other country or territory.[102]A disclosure of information is not a qualifying disclosure if the person making the disclosure commits an offence by making it.[103]A disclosure of information in respect of which a claim to legal professional privilege could be maintained in legal proceedings is not a qualifying disclosure if it is made by a person to whom the information had been disclosed in the course of obtaining legal advice.[104]Section 43C(1) explains that a disclosure is made to an employer or other responsible person where the worker discloses it:(a) to his employer, or(b) where the worker reasonably believes that the relevant failure relates solely or mainly to— (i) the conduct of a person other than his employer, or (ii) any other matter for which a person other than his employer has legal responsibility, to that other person. Section 47B - Detriments[105]A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.[106]This includes any act or deliberate failure to act by another worker of the worker's employer in the course of that other worker's employment, orby an agent of W's employer with the employer's authority, on the ground that W has made a protected disclosure.[107]In this case, the detriment will be treated as also done by the worker's employer and it is immaterial whether the thing is done with the knowledge or approval of the worker's employer. However, it is a defence for the employer to show that the employer took all reasonable steps to prevent the other worker:(a) from doing that thing, or(b) from doing anything of that description.[108]This section applies to employees and workers. However, where the complaint concerns an employee and the detriment amounts to a dismissal, the employee’s complaint must be brought under section 103A and not section 47B. Equality Act 2010 (EQA 2010) Direct discrimination (section 13 EQA 2010)[109]Section 13 of the Equality Act 2010 (EQA) provides a direct discrimination is less favourable treatment because of a protected characteristic. Age which is the characteristic that is relied upon by the claimant is a protected characteristic under the EQA. The claim of direct discrimination assumes a comparison between the treatment of different individuals. However, when making such a comparison under section 23 of the EQA, there must be no material difference between the circumstances relating to each case.[110]Simply establishing less favourable treatment is not enough to make out a complaint of direct discrimination. The case of Madarassy v Nomura International plc 2007 IRLR 246 reminds Tribunals that the complaint must provide sufficient evidence which would allow the Tribunal to conclude in the absence of an adequate explanation, that the respondent has committed the unlawful act of discrimination.[111]The case of Shamoon v Chief Constable of the Royal Ulster Constabulary 2003 ICR 337 provided that if the disadvantage is to amount to a detriment, a broad and ordinary meaning should be used. The Tribunal must find that by reason of the acts complained of a reasonable worker would or might take the view that they were being disadvantaged.[112]An unjustified sense of grievance cannot amount to a detriment as provided by the case of Barclays Bank plc v Kapoor (No. 2) 1995 IRLR 87. Harassment (section 26 EQA 2010)[113]Section 26(1) of the EQA provides that a person A harasses another (Person B) and engages in unwanted conduct relating to a relevant protected characteristic and Person A’s conduct has the purpose or effect of violating Person B’s dignity or creating an intimidating hostile degrading humiliating or offensive environment for Person B. Victimisation (section 27 EQA 2010)[114]Section 27 of the EQA provides that Person A victimises another (Person B) if A subjects B to detriment because: a) B does a protected act, or b) A believes that B has done, or may do, a protected act.[115]Things that can amount to a protected act are: a) Bringing proceedings under the EQA b) Giving evidence or information in connection with proceedings under the EQA c) Doing any other thing for the purposes of or in connection with the EQA d) Making an allegation (whether or not expressly) that A or another person has contravened the EQA. Burden of proof (section 136 EQA 2010)[116]Section 136 EQA 2010 sets out the burden of proof test in relation to all forms of discrimination that can be asserted. The employee must show a prima facie case of discrimination on grounds of their protected discrimination.[117]At that point the burden shifts to the respondent to show that the alleged treatment was not on the grounds of the asserted protected characteristic. Failing which, the Tribunal is entitled to conclude that the treatment was due to the protected characteristic relied upon by the employee.[118]This was considered in the case of Madarassy v Nomura international plc (above). In order for the burden to shift a claimant must establish more than bare facts of a difference of status and a difference in treatment. Time limits (section 123 EQA 2010)[119]Section 123(1) of the EQA provides that a complaint may not be brought after the end of(a) the period of 3 months starting with the date of the act to which the complaint relates, or(b) such other period as the Tribunal thinks just and equitable.[120]Under section 123(3) conduct extending over a period is to be treated as done at the end of the period; and failure to do something is to be treated as occurring when the person in question decided on it. Liability of employers and principals (section 109 EQA 2010)[121]Section 109 provides that anything done by a person in the course of their employment must be treated as also done by the employer and that it does not matter whether that thing is done with the employer's or principal's knowledge or approval. However, in respect of anything alleged to have been done by a person in the course of their employment it is a defence for their employer to show that they took all reasonable steps to prevent the employee:(a) from doing that thing, or(b) from doing anything of that description. Course of Employment[122]A key question under section 109(1) is whether such behaviour had been 'in the course of employment' such that the employer would be liable. The application of the phrase is a question of fact for each Tribunal to resolve, and this gives a wide discretion to Employment Tribunals to reach a decision that is seen as in accordance with justice and equity.[123]In relation to things taking place away from the workplace, the EAT has interpreted the authorities as requiring a consideration as to whether there is a sufficient 'nexus or connection with work' (Forbes v LHR Airport Ltd [2019] IRLR 890, EAT; AB v Grafters Group Ltd [2025] EAT 126). Reasonable steps[124]Liability may be avoided by showing that the employer has taken reasonable steps to prevent the behaviour with the burden of proof is on the employer. An employer can establish the 'reasonable steps' defence by showing either that they attempted to prevent the particular act of discrimination or that they attempted to prevent that kind of act in general.[125]It may also be the case that the onus is discharged if there are no practical steps which the employer can take (Balgobin and Francis v London Borough of Tower Hamlets [1987] IRLR 4), although in practice it may be anticipated that such circumstances will be rare. It is, however, a question of fact in every case whether the employer has taken such steps as were reasonably practicable to prevent the discrimination (cf Enterprise Glass Co Ltd v Miles [1990] ICR 787, EAT), where the giving of an oral warning was insufficient to establish the defence). For instance, it is no defence to assert that you once sent the personnel office a memo prohibiting discrimination, if you know (or should have known) that in practice the office disregards it.[126]Proper training in the elements of discrimination law for those in supervisory positions might be seen as necessary in order to show the appropriate standard. Much might depend on the size and resource of the employer in such circumstances.[127]In Canniffe v East Riding of Yorkshire Council [2000] IRLR 555, the EAT held that a tribunal should identify what steps the respondent had taken to prevent discrimination or harassment and then consider whether there were any further steps which it could have taken which were reasonably practicable.[128]Whether the steps that could have been taken would be likely to be effective is relevant to assessing whether they were reasonably practicable or, in the alternative, disproportionate to the result likely to be achieved (Croft v Royal Mail Group plc [2003] IRLR 592).[129]However, if the steps would have been reasonable ones to take then the employer is not exculpated simply because if it had taken them they would not have prevented the particular discrimination or harassment occurring (such as the very serious criminal behaviour in Canniffe). The EAT applied these principles derived from Canniffe and Croft in Allay Ltd v Gehlen [2021] IRLR 348, EAT, to uphold the Employment Tribunal's decision that antiharassment training given some 20 to 30 months previously had become stale and needed to be refreshed because managers had failed to do anything about racist remarks made by employees of which they were aware. The ineffectiveness that this demonstrated of the measures taken by the employer justified the tribunal's conclusion that the employer had not taken adequate steps. Counsel’s submissions on the
Law
[130]Mr Menon in his submissions reminded the Tribunal of the application of section 212(1) EQA which is the ‘General interpretation section’. He noted the definition relating to ‘detriment’ does not cover conduct that amounts to harassment and that it and direct discrimination are mutually exclusive.[131]Mr Lewinski in his submissions referred to the following cases: a) Fecitt v NHS Manchester [2012] IRLR 64 b) Serco Ltd v Dahou [2017] IRLR 81 c) Barton v Investec Securities Ltd [2003] IRLR 332 d) Efobi v Royal Mail Group Ltd [2021] IRLR 811 SC e) Nagarajan v London Regional Transport [1999] IRLR 572 f) Chief Constable of West Yorkshire Police v Khan [2001] IRLR 830 Discussion Fixed Term Worker Regulations
Discussion
[132]The claimant was a fixed term employee from 2018 until 2023 when she became a permanent employee. Therefore, she qualifies as a fixed term employee during this five year period. Allegation 2.1.1[133]Allegation 2.1.1 involved the claimant arguing that the Trust did not give her permanent employment in June 2022. This was roughly 4 years since the claimant began her employment and her fixed term contract with the Trust. It had been extended and it appeared to be brought as a regulation 3(1)(b) less favourable treatment complaint under regulation 7, rather than as breach of regulation 8 of the FTWR. The claimant was subject to her fixed term contract that was initially given for 3 years. However, with the subsequent extensions she worked a period of 5 years. She was allowed to progress to a permanent contract upon the end of this AKU contract after 31 July 2023.[134]This complaint involved a single allegation that she was not given permanent employment in June 2022. It was not presented until more than 3 months after this single allegation and where the first reference to ACAS early conciliation was 9 June 2023. The claimant was unhappy with the progression of her contract from 2022 and was comparing herself with other Band 4 colleagues. We did not hear any evidence supporting an argument that this complaint was presented in time. Consequently, this allegation was presented out of time contrary to regulation 7 of the FTWR. Allegation 2.1.2[135]Allegation 2.1.2 involved the claimant arguing that she was denied opportunities for lab rotation from June 2018. The Tribunal accepted that this allegation effectively continued throughout her fixed term contract in the sense that she believed this less favourable treatment existed and consequently, we accepted that it had been presented in time.[136]We have already discussed in the findings of fact that the claimant was limited to the work allocation in the AKU assay and from Band 4 lab rotation because her contract had been commenced to support the NAC work into the AKU condition. She was always employed by the Trust within the LCL and was never employed by NAC. She did not identify any other employees restricted to a client or project assay in this way who were not so limited. She was never prevented from starting her Band 4 training portfolio. Instead, it was not required because it was not part of her Band 4 AKU role. However, she was not prevented from obtaining this experience outside of her AKU work and Ms Milan had referred the claimant in 2019 to Mr Eccleston, whom she eventually approached in 2022. Allegation 2.1.3[137]Allegation 2.1.3 was that the claimant had been prevented from accessing HCPC portfolio support and development opportunities unlike Trina Giokas and Matthew Hurst. We accepted that this was an allegation which continued through the claimant’s fixed term employment and was therefore presented in time.[138]The comparators were Band 4 but employed on an apprenticeship programme for those without qualifying degrees. It was understood that they were permanent employees. They were required to complete portfolios and had access to overtime work.[139]The AKU Band 4 contract did not offer overtime work, but the claimant was not denied the opportunity to apply for suitable Band 4 work using the NHS Bank and it is understood that she did so. The claimant did not provide sufficient evidence to explain a tax disadvantage arising from this arrangement and the Tribunal finds that the claimant’s income would have been subject to income tax in the same way as every other Trust employee based upon annual salary and tax codes. Allegation 2.1.4[140]Allegation 2.1.4 was that the claimant received reduced wages because of sickness absence thresholds being met. The Tribunal did not understand how this allegation related to the claimant’s fixed term status. We accepted that she was employed under NHS Agenda for Change terms and would have been entitled to the annual leave entitlement commensurate with her role and service. Any reduction from full pay to half pay would have arisen from the claimant’s sickness absences (and her sickness absence was significant for 2022/3 and 2023/4 for example). This was not a well-founded allegation. FTWR allegations generally[141]The claimant relied upon two permanent employees, Ms Giokas and Mr Hurst as comparators and as described above. Even for those allegations relating to possible less favourable treatment, such as rotation and portfolios, we did not accept that they could be genuine comparators under the FTWR. This was because the claimant should have compared herself with permanent Band 4 employees engaged in ‘client specific’ work such as the AKU work and who did not have the restrictions placed upon them that she was subject to. The comparators were materially different in that they occupied training roles which required a different range of activities from the claimant.[142]The claimant’s less favourable treatment was not because of her fixed term status, but because of her AKU work which gave rise to a fixed term contract. This is an important difference because it was not the fixed term status that caused the alleged detriments.[143]However, in any event, the Tribunal accepted that the Trust advanced a legitimate aim under section 5.3 of the list of issues which required them to operate in a financially responsible manner protecting the public purse. There had to be a budget for the work in question after all and this involved term limited funding from the NAC for AKU research. It was managed proportionately in that the claimant was required to work in a way which served the needs of the AKU project. The fundamentals of the Band 4 post remained in place in terms of pay, sick leave and annual leave and the claimant was not denied the opportunity to explore portfolios etc’ outside of her normal work.[144]This was not a well-founded case of less favourable treatment arising from the claimant’s fixed term work from 2018 until 2023. She of course became a permanent employee from August 2023. Whistleblowing – detriments arising from the making of protected disclosures (Part IVA ERA 1996) Protected disclosures (section 43B ERA 1996) (Allegation 8)[145]The Trust (this complaint relates to the first respondent), accepted that the first grievance dated 3 October 2022 amounted to a protected disclosure on section 43B(1)(d) grounds relating to a disclosure of health and safety concerns. The grievance complies with the requirements of section 43B and amounts to a protected act.[146]The claimant of course relies upon the second grievance (17 January 20230, the third grievance (13 March 2023) and the fourth grievance (5 June 2023) and argues that they too are protected by section 43B. The Trust disputes this.[147]In many ways it does not matter that this dispute arises given that it is accepted there is a valid protected disclosure (the first grievance), and the earliest disclosure for the purposes of identifying the cause of any detriments claimed under section 47B. In any event, the Tribunal considered the three remaining grievances and the application of section 43B. After all, there are differences between the information and subjects identified within them and this could influence causation behind the alleged detriments.[148]However, in terms of the second grievance, we concluded that it was effectively a disclosure relating to additional information arising from protected disclosure 1. It is not a separate protected disclosure because it does not amount to a new disclosure of information.[149]The third and fourth grievances were not considered to be protected disclosures because neither identified any grounds under section 43B(1) ERA 1996 either overtly or implicitly from the contents of each grievance submitted.[150]Consequently, only the first disclosure is deemed to be a protected act within the meaning of section 43B ERA 1996. Detriments (section 47B ERA 1996) Allegation 9.1.1[151]Allegation 9.1.1 involved the claimant arguing that the Trust threatened her job security and forced her into redeployment in February or March 2023.[152]At the beginning of 2023, the Trust were aware of the reduction in laboratory work from AKU and the impact that this would have upon the claimant’s AKU dedicated fixed term contract. There was an offer of redeployment with the short notice offer of a secondment for 5 ½ months as described in the findings of fact above. However, there was no obligation to accept this offer, the claimant would remain in her fixed term role if she did not accept it, but with time running out on that fixed term appointment, it was possible that her contract would soon end. This was not a detriment on the part of the employer and nor was it connected with the protected disclosure. If anything, the Trust sought to ensure that the claimant remained in work and at that point in time, they informed her of the options then available. Allegation 9.1.2[153]Allegation 9.1.2 stated that the claimant’s candidacy for the Trainee Biomedical scientist (Generic) role was rejected on 14 August 2023 following her interview and then she was excluded from the candidate reserve list.[154]We accepted that following the interview the claimant was not rejected for the role but came third during a competitive interview. With funding being available for only two Trainees in August 2023, she was first reserve and this was subsequently confirmed in the email discussion between Ms Malkin and Ms Harper on 1 November 2023. Consequently, we cannot accept that the claimant was rejected for the role in August 2023.[155]In November 2023, further funding became available and the claimant was clearly being discussed within the emails at the time between Ms Malkin and others concerning the offer of this third available post to her as first reserve. No mention was made of a further competitive interview being required. However, Mr Dawson’s name is mentioned, and reference is made to his wish to have a conversation with colleagues about this matter. He was of course aware of the claimant’s grievances having engaged with her in August 2023 and her allegations relating to Mr Eccleston.[156]It would have been reasonable to expect the Trust to have provided documentary evidence relating to the interviews, the November discussions and witness evidence from Mr Dawson as a senior HR manager, or at least from a colleague. Instead, surprisingly little evidence has been provided by the Trust relating to Trainee recruitment exercise and the additional funding. Significantly however, the claimant was not offered the third available Trainee role which would ordinarily have been available to the first reserve candidate before anyone else.[157]While we reminded ourselves that our consideration of detriments being on the ground that a worker made a protected disclosure is not a ‘but for’ test, the employer should still demonstrate that the protected disclosure (in this case grievance 1), did not materially influence the failure to offer the claimant this role.[158]The claimant had been ill since 4 September 2023, offered her resignation in early 2024 and it was then agreed instead that she could have a leave of absence from work. It was also noted that while the first grievance was raised in October 2022, it had only been determined by Ms Mulhaney in August 2023. The claimant was also considering an appeal which meant that it remained a live issue.[159]Mr Menon disputed this allegation on behalf of the Trust but was unable to explain satisfactorily why they had failed to provide rebuttal evidence such as interview records or evidence relating to Mr Dawson’s role.[160]Mr Lewinski in contrast submitted that at the interview, one of the successful Trainee candidates had been a newly hired inexperienced graduate, argued that the interview panellists were not called to give evidence and that when the further funding became available, it was strange how no explanation was available concerning why the claimant was not offered the Trainee post as first reserve.[161]While we did not expect evidence from the panellists, the absence of interview score sheets supported by the evidence of the panel chair was a surprising omission. But our greater concern was the way in which the claimant fell out of contention without explanation for the third available Trainee job. She believed that she was perceived as a troublemaker. There may have been other reasons such as her long term ill health or the funding being delayed, but they were not advanced as arguments by the Trust.[162]Given that the claimant’s first grievance remained recently resolved, it was generally known amongst those involved with the Trainee process and the likely appeal, on balance of probabilities we concluded that this alleged detriment was materially influenced by that protected disclosure in the sense that it was more than a trivial influence. Consequently, allegation 9.1.2 is well founded and succeeds. Allegation 9.1.3[163]Allegation 9.1.3 was a more wide-ranging list of allegations which related to the removal of benefits and the earlier fixed term worker complaint. It is not necessary to repeat these allegations in detail, other than to say the following: Allegation 9.1.3(a) – the claimant’s fixed term role did not include job rotation and so it not being provided cannot be a whistleblowing detriment. It was simply something not being offered because it was not part of the job. The claimant was not prevented from applying for jobs where rotation might be available. Allegtation 9.1.3(b) – the claimant was not deprived from the opportunity to complete HCPC portfolios, but it was not part of her fixed term job. This cannot be a whistleblowing detriment. The claimant was not prevented from exploring opportunities where this would be part of a job. Allegation 9.1.3(c) – the claimant’s fixed term role did not include the opportunity to work overtime, but she was allowed to work overtime using the NHS Bank. This was not a whistleblowing detriment. Again, the alleged detriment was not part of the claimant’s job, but she could seek overtime by other means. Allegation 9.1.3(d) – this allegation relating to a failure to implement occupational health risk assessments was withdrawn by the claimant and need not be considered. Allegation 9.1.3(e) – this allegation involved the rejection and delay in the restoration of full-time hours following the claimant’s phased return to work without justification of the delayed recommencement date or providing any back dating pay from the original date requested. This had some relation to grievance 3 and it appeared that this dispute arose from the claimant’s return from sickness absence in late 2022. There was some confusion about this matter and once Ms Pruden became aware of the claimant’s concerns, she sought to resolve this matter. However, the problem in our view related to changes in NAC funding for the claimant’s work which was being reduced in the LCL work area. Our conclusion that there was no evidence to persuade us that the difficulties identified by the claimant were not materially influenced by the claimant’s disclosures. Allegation 9.1.3(f) – this allegation involved an unreasonable delay or a failure to address grievances brought on 3 October 2022 (first grievance), 17 January 2023 (second grievance), 13 March 2023 (third grievance), 5 June 2023 (fourth grievance) and 16 August 2023 (fifth grievance). Having considered the evidence in relation to this case there was some delay in progressing grievances, especially Ms Mulvaney’s investigations relating to grievances 1 and 2. However, while these grievances did take longer than the 14 days (to a stage one hearing) and 7 days (to the sending of an outcome letter), would be expected by the Trust’s Grievance Procedure, (p276 and pp280-282), this was not entirely surprising. Grievances often involve complex and lengthy complaints and require investigation involving many witnesses. Once working patterns, sickness absence and annual leave have been taken into account (both for witnesses and investigating manager), many months can pass. Moreover, the investigating manager is invariably already working in a very busy role with limited relief from those duties being allowed upon appointment to the investigation role. This was clearly an issue for Ms Mulvaney Our conclusion is that any delay while present and no doubt frustrating to the claimant was a consequence of the complexity of the allegations made and any delay was not materially influenced by the disclosures made. Managers did engage with the claimant and Ms Mulvaney in relation to grievance 1 and 2 clearly needed to spend considerable time investigating this case and there were reasons for the delay. In contrast, Ms Pruden in relation to grievance 3 responded quickly. Grievance 4 was considered quickly in June 2023 and grievance 5 was mixed up with the claimant disclosing to Mr Dawson her completion of ACAS early conciliation stages before presenting a Tribunal claim. However, where she referred to allegation being made against Mr Eccleston, these matters were picked up by Mr Dawson, and he engaged with the claimant during this time. Ultimately, while some delays did take place, we did not conclude that the periods involved were unreasonable and were materially affected by the disclosures, and particularly the confirmed protected disclosure.[164]In relation to the whistleblowing complaint, the Tribunal accepts that the claimant was the victim of detriments arising from the making of a protected disclosure in relation to 9.1.2, whereas the detriment allegations within 9.1.1 and 9.1.3 are unsuccessful. Victimisation (section 27 EQA 2010)[165]This complaint bears some resemblance to the whistleblowing complaint, especially in relation to the protected acts relied upon as like the asserted protected disclosures, reference is made in allegation 12 to grievances 1, 2, 3 & 4. Protected acts (Allegation 12)[166]The question of protected disclosures requires some consideration because the grounds relied upon under section 27(2) are the bringing of EQA proceedings, giving evidence or information in relation to such proceedings, doing any other thing for the purposes or in connection with the EQA or making an allegation (whether or not express) that a person has contravened the EQA.[167]In what is a lengthy first grievance on 3 October 2022, there is very little information concerning possible EQA matters. What is there, can be found within section 4.2 (p623 of the bundle). This section says, ‘In my experience, whether on the ground of ethnicity or gender, the systemic undermining and ridicule that I have endure since my illness…’ That is all there is which relates to protected characteristics and there is nothing further that either expressly or implicitly suggests that sex or race is a relevant consideration.[168]Mr Menon described the claimant’s reference to EQA related matters was ‘solitary and perfunctory throw-away comments not followed up or repeated since, making a tentative suggestion of race/sex discrimination…so insignificant as not being capable of being a protected act.’ In contrast, Mr Lewinski asserted it provided sufficient information to amount to a protected act.[169]It is correct that the claimant is female and is North African in terms of her race. Ms Mulhaney who investigated this grievance did not deal with this matter in her statement, but under cross examination said, ‘I didn’t’ think it had any relevance [to the grievance].’ She failed to make reference to the question of discrimination within her grievance decision in August 2023.[170]The Tribunal did consider that a diligent investigating manager would have interrogated the claimant regarding this matter to understand why she had included the brief sentence regarding sex and race. However, on balance we accept that Ms Mulhaney felt it did not relate to the actual substance of the grievance being brought. In this instance, it was a fair conclusion for her to reach. There simply was no obvious underlying allegation or implication of any of the asserted treatment being related to matters covered by the EQA. Indeed, it is telling that despite the claimant’s sentence in section 4.2 of her grievance not being considered in the Mulhaney decision, the claimant did not seek to pursue a response concerning this matter in relation to the second, third or fourth grievances.[171]Accordingly, we determined that in relation to victimisation, the claimant had failed to identify disclosures or complaints that could amount to protected acts under section 27 EQA 2010. There is of course the fifth grievance from August 2023 which relates to the second respondent Mr Eccleston’s conduct, but this was not asserted as a protected act under section 27, featuring only as an alleged whistleblowing detriment in relation to 9.1.3(f).[172]This means that without an effective protected act, the claimant is unable to pursue her complaint of detriments as victimisation under section 27. These related to the duration and delay of the grievances being considered and numerous allegations that the claimant was humiliated and undermined by emails. However, insofar as they relate to victimisation, it is not necessary nor proportionate to consider them further following our decision regarding the protected acts. Harassment related to sex (section 26 EQA 2010) Time limits[173]The Tribunal noted that the first early conciliation certificate was presented to ACAS on 9 June 2023, and this means that any allegation that took place before 10 March 2023 is out of time under section 123 EQA 2010.[174]We accepted that the claimant first approached Mr Eccleston in January 2022, but in terms of alleged messages and recordings from meetings, these began on 27 July 2022 (16.1.1(a)) and ended on 7 August 2023 (16.1.1(oo)), making 41 separate allegations. There was a gap between the allegations from 20 February 2023 until August 2023 but we accepted that this involved an ongoing arrangement where a work relationship continued relating to career development between Mr Eccleston and the claimant. She could and would still expect to receive messages during this period.[175]We were concerned that the claimant could bring a complaint earlier than she did relating to the complaint of harassment considering the duration of the alleged treatment. We noted her awareness of unwanted behaviour in her messaging with a friend regarding her concerns and her capacity to bring several grievances between October 2022 and June 2023.[176]However, we accepted that these allegations amounted to continuing acts which only concluded with the final August 2023 allegations which took place after ACAS had been notified of the first complaint.[177]Insofar as the second complaint is concerned, the claimant contacted ACAS on 22 December 2023, which meant that any act which took place before 23 September 2023 would be out of time. However, considering the numerous ongoing issues relating to grievances, including the fifth grievance relating to harassment and the lengthy absence beginning in September 2023, we considered that it would be just and equitable to extend time. The allegations of harassment[178]The Tribunal accepted that the 41 allegations of inappropriate or sexualised conduct by Mr Eccleston towards the claimant within allegation 16.1.2(a) to (oo) happened as alleged. These constituted texts, messages or conversations in meetings which the claimant had covertly recorded and where a transcript had been provided within the bundle. They began on 27 July 2022 and ended on 7 August 2023.[179]There were numerous allegations here and it is not proportionate to go through each one in turn. However, in summary we would say that each allegation amounted to unwanted conduct on the part of the claimant. This was because from August 2022, the claimant was exchanging messages regarding the Mr Eccleston’s behaviour with her colleague as discussed above. She was clearly concerned about obtaining a Trainee post from the exchange of messages that took place, but there was no doubt she did not welcome the nature of the contact from Mr Eccleston. She may have continued engaging with Mr Eccleston until after the outcome of the initial Trainee interviews during the summer of 2023, but the messaging from the claimant sought to ‘manage’ him rather than suggest that she found his comments welcoming.[180]The allegations were of varying levels of poor behaviour on the part of Mr Eccleston. As discussed in the findings of fact, even where seemingly innocuous messages were sent, adding the words (for example), ‘I will miss you or shouldn’t I say that’ (16.1.2((b)) or ‘Try a hot bath to take the aches away, if I’m allowed to say that’ (16.1.2(k), Mr Eccleston managed to transform it into something more suggestive. This of course escalated to the comments about visualising the claimant in the bath or offering to share the bath with her, (16.1.2(m), (n) and (ff)). As we already said, we consider that Mr Eccleston was chatting up the claimant and when she failed to respond positively, he did not get the message and stop. Instead continued and even at times escalated the tone of the message being sent.[181]Mr Eccleston denied that the conduct had the purpose of violating the claimant’s dignity and/or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant. He believed that he was simply being ‘friendly’ and ‘innocuous’ as he would be with anyone he supported. There was of course the valiant but unconvincing defence by Mr Eccleston regarding the ‘bath’ references. As we explained above, Mr Eccleston’s argument that it was a sporting reference was not credible.[182]We were not sure whether Mr Eccleston genuinely believed that his behaviour was appropriate and his messaging was part of being a supportive manager, (which in many ways we accept he was). It may be that this is something which is normal and acceptable behaviour for him. However, we reviewed the logical and objective effect of these messages in 16.1.2. Having done so, we accepted that these messages when considered in terms of their number and the prolonged period during which they took place, violated the claimant’s dignity. No employee should expect to receive inappropriate messages which were suggestive and which were clearly ‘fishing’ to see if the claimant would react positively to what a reasonable person would conclude were sexual advances.[183]We considered the argument that it is common for one colleague attracted to another in the workplace might make a flirtatious comment or two. However, a reasonable person would conclude that when the reaction is not enthusiastic, the sender should reflect and recognise the comment is not wanted. Most people do not want to call out poor behaviour, especially if they receive it from a manager and where there is an unequal balance of power. The duty is therefore all the greater for the manager to calibrate their comments appropriately. Mr Eccleston may have been infatuated, but he was old enough and could have reasonably been expected to moderate his language once he could see the polite way in which the claimant responded to his suggestive messages.[184]In our view, the claimant was capable of ‘calling out’ the behaviour of Mr Eccleston and eventually did so on 20 August 2023 after she came third in the first of the Trainee interviews. Bearing in mind her comments with her friend about Mr Eccleston the previous summer, we concluded that she felt Mr Eccleston’s foolish behaviour was something that should be tolerated (though never welcomed) in order that she could obtain his assistance in securing the Trainee role. She was no doubt angry when she was not appointed and realised he had not been as useful as she believed he would be when she exchanged messages with her friend in August 2022. But none of this seeming acquiescence serves to undermine our finding that the messages in 16.1.2 were unwanted and had the effect of violating the claimant’s dignity. Mr Eccleston should have known better, and it is disappointing that a man of his experience failed to adjust his behaviour once his initial flirtatious messages ‘fell on deaf ears’.[185]The claimant was experienced and sufficiently able to challenge forcefully when she wanted to. She has demonstrated that despite her anxieties, she is assertive and raises grievances when she feels it is necessary to do so. She was not retiring or lacking confidence in the workplace. But any impact of the delay in calling out Mr Eccleston’s behaviour is something which will be considered in relation to any injury to feelings award concerning the successful Equality Act 2010 complaints. The claimant may of course wish to provide at the remedy hearing more evidence of her anxieties about the power imbalance between Mr Eccleston and how this added to the anguish she felt and how this affected her confidence in making a complaint about him.[186]There were also several other allegations. Allegation 16.1.3 related to a recording of a conversation where the claimant argued that Mr Eccleston persuaded the claimant not to present her second grievance in November 2022 by suggesting management would react badly and said, ‘who do you think you are?’ However, the Tribunal found that Mr Eccleston was simply giving the claimant his opinion of how this grievance might be received by management and how he believed management might view it. It did not involve him giving his (our emphasis), view about the claimant in relation to this grievance. This was not a prima facie case of harassment.[187]The claimant may have considered this allegation to be related to sex and amounted to unwanted behaviour. However, we were unable to accept that this was the case. It was purely advice being given and not in an intimidating way. In this instance, it was not something relating to sex. It simply did not have the purpose or effect of violating the claimant’s dignity nor creating an intimidating etc’ environment for her. This allegation of harassment cannot succeed.[188]Allegation 16.1.4 asserted that on 2 December 2022 the claimant said during a face to face meeting, Mr Eccleston told her that she need not worry about progressing to Band 5 because ‘I want to make love to you’. This complaint was supported by a transcript of a covert recording taken by the claimant which she took immediately following these words being said by Mr Eccleston.[189]The Tribunal considered the conversation that was recorded by the claimant, and which of course did not include these words. However, on balance considering the tone of what was said within the transcript from both claimant and Mr Eccleston, we were unable to accept that the conversation would have remained as measured as it appeared from what actually had been recorded. It was also something that was not consistent with the other inappropriate comments that he made and tended towards innuendo rather than direct propositions such as ‘I want to make love to you’. Consequently, we concluded that this unwanted treatment did not happen based upon the balance of probabilities having considered the available evidence.[190]Allegation 16.1.5 involved a complaint that Mr Eccleston referred to an earlier accusation of sexual harassment but that he had simply told HR to ‘fuck off’. The Tribunal accepted that this comment was made and that Mr Eccleston was referring to an earlier complaint made by another female member of staff and dating from 2020. However, we concluded from the context of the conversation that he was responding to the claimant’s unhappiness with managers and how awful she felt they could be. Mr Eccleston agreed and used his recollection as a means of attacking HR, but also with a view to boasting how gained the upper hand over them. There was a certain level of vanity in how he talked about his experience of work and this was an example of Mr Eccleston trying to impress the claimant.[191]This was another allegation where Mr Eccleston was not subjecting the claimant to conduct related to sex and it was not something that was unwanted. It did not have the purpose or effect of violating the claimant’s dignity etc’. We did consider whether this was an instance of a predatory manager seeking to emphasise a power imbalance between them so as to intimidate or deter the claimant from making any complaints about his conduct. However, from the context of the evidence, we determined that he was unwisely boasting to the claimant about a previous complaint with the intention of impressing her. While this allegation did not happen in the way the claimant alleged, it did indicate to the Tribunal that the Trust were aware of Mr Eccleston’s capacity for inappropriate behaviour or at least that his behaviours could attract complaints. This is relevant to liability under section 109 EQA 2010, considered below.[192]Allegation 16.1.6 related to the meeting with Mr Eccleston immediately before the claimant’s interview for the Trainee role. She described him embracing her, kissing her without consent and then winking at her. The Tribunal noted that in her email to Mr Dawson on 16 August 2023 complaining about Mr Eccleston, she only referred to being hugged and winked at. She made the same comment to Mr Eccleston on 20 August 2023 when she accused him of harassment. Mr Eccleston accepted that a hug took place and on balance we concluded a hug and a wink occurred, but no kiss.[193]Regardless of the absence of a kiss, the hug and the wink happened as alleged and amounted to conduct relating to the claimant’s sex and Mr Eccleston’s continued attraction towards her. This was unwanted conduct and we accepted that whether it was Mr Eccleston’s purpose or not, objectively it had the effect of violating the claimant’s dignity and something that she found offensive, especially when considering it as a whole with the earlier unwanted behaviour relating to allegation 16.1.2 above. This allegation therefore succeeds.[194]Finally, allegation 16.1.7 on 20 August 2023 related to the claimant’s email sent to Mr Eccleston accusing him of harassment. She described him ignoring her email which we accepted was the case. While we acknowledged that a failure to act could potentially amount to harassment, we did not accept that this was the case with this allegation. Mr Eccleston would undoubtably been shocked to receive this email even though the claimant had reasonable grounds for sending it. But his failure to act was in itself unrelated to the claimant’s sex and nor could it be construed as having the purpose or be considered as objectively having the effect of creating an intimidating etc’ environment or violating the claimant’s dignity. This allegation is not an act of harassment.[195]In relation to the allegations of harassment contrary to section 26 EQA 2010 our decision is that the numerous allegations relating to messaging within allegation 16.1.2 and 16.1.6 are well founded and succeed. However, the other allegations 16.1.3, 16.1.4, 16.1.5 and 16.1.7 are not well founded and are unsuccessful.[196]There was of course allegation 20 in the alternative, which was conduct of a sexual nature within the meaning of section 26(2) EQA 2010. Given the successful harassment on grounds of sex complaint, it is not necessary to consider this allegation in detail. We did not accept that those allegations which were unsuccessful in the harassment on grounds of sex (16.1.3 to 5 and 16.1.7), happened as alleged or were unwanted conduct on section 26(2) grounds. We did question whether allegation 16.1.5 fell within section 26(2), but from the context of the discussion, which was Mr Eccleston boasting how he dealt with management speaking to him about an earlier complaint and he was confident enough to tell them to ‘fuck off’. On balance this did not meet section 26(2). However, the messages in 16.1.2 contained messages which all involved Mr Eccleston being motivated by the claimant’s sex and it need not be of a sexual nature. Direct discrimination (section 13 EQA 2010) (allegation 21)[197]The claimant relied upon the allegations of unwanted conduct within allegation 16 relating as being in the alternative less favourable treatment under section 13 EQA 2010. In the direct discrimination complaint, the claimant compared herself with a hypothetical male comparator.[198]Mr Lewinski on behalf of the claimant argued that she was treated less favourably by Mr Eccleston in comparison with how he would have treated a hypothetical male comparator, because he would not have harassed a male in the same way. Mr Menon on behalf of the Trust argued that allegations under section 13 (direct discrimination) and section 26 (harassment) are mutually exclusive and a finding of harassment cannot also amount to section 13 less favourable treatment. This was where he referred to sections 39 and 212 of the EQA 2010 and noted that (in section 212), detriment as a definition does not include conduct that amounts to harassment.[199]He also referred to section 39(2) of the EQA 2010 which explained that in relation to discrimination, claims may be brought in the workplace in relation to various situations such as the terms of employment, opportunities for promotion, dismissal and ‘any other detriment’. Referring to section 18.124 of IDS Brief Employment Law Handbooks, he submitted that claims brought under the last limb would clearly be based on detriment and therefore could not also form a harassment claim. We agreed that “the words ‘any other’ would seem to imply that a claim brought on the basis of dismissal, for example, would be based on a particular kind of detriment. If so, a direct discrimination claim and a harassment claim could not both be upheld in respect of the same dismissal”. Consequently, the successful complaints of harassment under allegation 16.1.2 and 16.1.6 cannot amount to direct discrimination. Unfortunately, by the time of the final hearing, Mr Eccleston was not represented, and he did not address us on this part of the list of issues.[200]We did consider the question of direct discrimination in relation to the unsuccessful harassment allegations 16.1.3 to 5 and 16.1.7: a) In terms of allegation 16.1.3 (the comment about management thinking ‘who do you think you are’ relating to the claimant bringing a grievance), we were unable to accept that Mr Eccleston would not have treated a hypothetical male in the same way. It was after all about his view about how a grievance would be received and the claimant was unable to provide convincing evidence that it was motivated by some sort of ruse or modus operandi on the part of Mr Eccleston relating to sex. We concluded this was more about his ego and impressing a mentee than the sex of the claimant. b) Section 6.1.4 (the ‘I want to make love to you comment’) we found did not happen as alleged. c) Section 6.1.5 (referring to the earlier sexual harassment allegation from another), would have been said to a male given the boastful way in which it was done and it was about Mr Eccleston’s ego rather than less favourable treatment on grounds of sex. d) Finally, section 6.1.7 would not work as an allegation of direct discrimination because it assumes Mr Eccleston ignoring an allegation of predatory behaviours of grounds of sex. However, even if these circumstances had arisen, we considered that the same reaction to a male comparator would have happened as it was a failure to react to a serious allegation.[201]Therefore, in relation to direct sex discrimination, we were unable to identify any successful allegations, but the claimant does of course have a successful complaint of harassment against Mr Eccleston and the direct discrimination complaint was presented very much in the alternative. The question of the first respondent’s liability in relation to the successful harassment complaints found against the second respondent (section 109 EQA 2010). Liability of employers and principals (section 109 EQA 2010)[202]As explained above section 109 provides that anything done by a person in the course of their employment must be treated as also done by the employer and that it does not matter whether that thing is done with the employer's knowledge or approval. However, it is a defence for the employer to show that they took all reasonable steps to prevent the employee from doing what they have been found to have done or anything of that description.[203]Mr Lewinski argued that the Trust is vicariously liable for the actions of Mr Eccleston. He asserted that his dealings with the claimant arose from the course of his employment as it primarily focused upon her career development and Ms Milan had previously encouraged the claimant to engage with him for this purpose.[204]Mr Menon disagreed on behalf of the Trust. He relied upon the reasonable steps defence under section 109(4). While a previous complaint had been made against Mr Eccleston several years previously, Mr Menon submitted that the Trust was unable to take the matter further because the complainant did not want to proceed and their evidence was uncorroborated.[205]Moreover, he said that the claimant’s decision not to share concerns with the Trust until August 2023 meant that they could not know what was happening, but when they were informed, they acted swiftly and took action against Mr Eccleston.[206]We did not hear meaningful submissions from Mr Eccleston concerning this matter, but do not criticise him for failing to do so, given his unrepresented status by the time of the latter part of the liability hearings.[207]Firstly, we agree with Mr Lewinski that the successful harassment complaint relates to matters that happened during the course of Mr Eccleston’s employment. While there were informal discussions taking place, the meetings and discussions were prompted by and continued because of the claimant’s clear aim of seeking career advice and feeling unhappy with her line managers at the time. Ms Milan had effectively recognised Mr Eccleston’s role as a mentor and referred the claimant to his role early on during her employment.[208]It is true that the Trust were hampered from dealing with Mr Eccleston because the claimant decided not to complain until after she failed to secure one of the two Trainee roles and when she raised a grievance with Mr Dawson on 16 August 2023. However, the swift way the Trust reacted demonstrated previous concerns regarding Mr Eccleston being reignited and on balance we concluded from the facts that this was motivated by the complaint made several years previously and which was withdrawn.[209]We considered Ms Malkin’s evidence regarding this matter, and which related to a previous complaint in 2020, (before Ms Malkin was employed by the Trust). A copy of emails sent by the complainant on 28 January 2020 to Ian Robinson who was a manager at LCL and who escalated the matter to HR was included within the bundle, (pp1190-1). The anonymous complainant was a trainee and referred to inappropriate behaviour from Mr Eccleston over 3 years. Details were provided and referred to being hugged and kissed in private and general unwanted behaviour included exchanging mobile numbers and messaging outside of working hours. This was similar to the behaviour complained about by Ms Eccleston.[210]Ms Malkin acknowledged that the anonymous complainant did not take matters further but suggests that the reason for not taking any further action in relation to Mr Eccleston was the pressures arising from the onset of the Covid pandemic in 2020 and Mr Eccleston shielding because he was considered to be at high risk from the virus. Mr Eccleston suggests that he was approached in relation to this incident in his interactions with the claimant in allegation 16.1.5 of the claimant’s list of issues. We therefore accepted on balance that this discussion with the claimant took place. Moreover, we accepted on balance that management would have made some attempt to engage with Mr Eccleston about the earlier complaint at around the time it was made and would have been concerned regardless of whether the complaint had been withdrawn.[211]The Trust is a large employer that has policies and procedures and significant HR resources dealing with dignity in the workplace and matters relating to discrimination and harassment. It is accepted that Covid will have placed a huge burden on the Trust and Mr Eccleston’s absence would have caused difficulties with any inquiry into his activities. However, the way in which the Trust reacted in response to the claimant’s complaint demonstrated to us that they were aware of Mr Eccleston having a reputation to some degree of behaving inappropriately from the earlier complaint. The 2020 complaint not being pursued by the then complainant would have made a formal disciplinary process unlikely. However, the Trust as a large employer would have been expected to review and potentially offer retraining to Mr Eccleston with a view to protecting him as well as ensuring he understood appropriate behaviour. His view of what happened during his discussion with the claimant suggested that he had not shown any insight into these earlier events. The Trust failed to satisfy us that it had taken reasonable steps to prevent the behaviour from having taken place and even where complaints are withdrawn, the subject of that complaint can still be involved in remedial processes to ensure misunderstandings in the workplace do not arise. The Trust failed to demonstrate a successful defence under section 109 and consequently we determined that they are liable for the findings of harassment on grounds of sex made against Mr Eccleston.
Conclusion
[212]Accordingly, the claimant has succeeded on the followed basis: a) The claimant’s first grievance dated 3 October 2022 in allegation 8.1.2 of the list of issues is a protected disclosure under section 43B ERA 1996. b) The claimant was subject to a detriment contrary to section 47B ERA 1996 by reason of the protected disclosure in (a) above, in relation to allegation 9.1.2 but restricted to her being excluded from the Trainee Biomedical Scientist (Generic) role candidate reserve lists later in 2023. c) The claimant was subject to harassment on grounds of sex by the second respondent in relation to allegation 16.1.2 and 16.1.6 of the list of issues, contrary to section 26 EQA 2010. d) The first respondent is liable for the successful harassment complaint found against the second respondent because it failed to successfully rely upon the statutory defence under section 109 EQA 2010. e) All other complaints alleged within the list of issues are not well founded and do not succeed.[213]These successful complaints will now proceed to a remedy hearing listed for 2 days and notice of which will sent to them separately in due course. ____