Ms J M Ansbro v Marshall Motor Group Ltd and Constellation Automotive Group Ltd: 2411380/2023 and 2400164/2024

EMPLOYMENT TRIBUNALS

Case No 2411380/2023, 2400164/2024

Between

Ms J M AnsbroClaimant

Marshall Motor Group Ltd and Constellation Automotive Group LtdRespondent

Before

Employment Judge Slater

Date 15 January 2026

JUDGMENT

I refuse the application to strike out the complaints of direct sex discrimination and harassment. JUDGMENT having been sent to the parties on 17 September 2024 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:

REASONS

Introduction

[1]These are reasons requested by the claimant for the judgment refusing the respondent’s application to strike out the complaints of direct sex discrimination and harassment. The claimant has also requested written reasons for my refusal to make a deposit order. The refusal of a deposit order is a case management order which was contained in my orders sent to the parties on 17 September 2024, rather than in the judgment refusing the strike out application sent to the parties on the same day. However, to avoid a proliferation of documents, and because the reasons for refusing the strike out and refusing to make a deposit order are closely linked, I include the reasons for refusing to make a deposit order in this document.

[2]I can strike out a complaint if I consider there is no reasonable prospect of success under rule 37 of the Employment Tribunals Rules of Procedure 2013. I can make a deposit order as a condition of continuing with any specific allegation or argument if it has little reasonable prospect of success under rule 39.

[3]Mr Crowe is correct that there is an initial burden on the claimant to prove facts from which the Tribunal could conclude that there is unlawful sex discrimination and that the initial burden extends to every element required to succeed in a complaint, so that includes, in a direct discrimination complaint, that the less favourable treatment is because of sex or, in a complaint of harassment, that the treatment is related to sex and that the treatment had the requisite effect and it was reasonable for it to have that effect.

[4]When a Tribunal at a final hearing decides whether the initial burden of proof passes, it is, except in very rare circumstances, after hearing evidence from the claimant and the respondent. It is on the basis of being able to consider documentary evidence produced during disclosure. Most of the relevant documentary evidence tends to be in the hands of the respondent and not available to the claimant when presenting their claim. The claimant is not expected, and could not reasonably be expected, to set out in their claim form the evidence they may be able to rely on to satisfy the initial burden of proof. It is implicit in the identification of complaints by the claimant as direct sex discrimination that she is saying that the less favourable treatment was because of her sex and, in relation to harassment, that the treatment was related to sex.

[5]Discrimination complaints are very fact sensitive. It is only in the clearest cases of lack of merit that a complaint of discrimination can be struck out as having no reasonable prospect of success at this early stage of proceedings. This is not such a case.

[6]There are some matters of fact which are in dispute and require evidence to be heard, which are relevant to the merits of the claims e.g. whether Mr Mount was promoted or his existing job just given another name; and the circumstances surrounding a male employee coming to present an area of work at a board meeting for which the claimant was responsible.

[7]Evidence relating to the reason for any less favourable treatment or whether acts which could be harassment are related to sex, are likely to be largely in the hands of the respondent. I cannot assume that nothing which emerges in disclosure of documents or the respondent’s evidence will assist the claimant in persuading the Tribunal that the burden of proof has shifted.

[8]The claimant has referred to pay gap data and Mr Crowe has not challenged that this shows a disparity in pay between men and women to the women’s disadvantage. This might be something on which a Tribunal could rely, together with other matters, in deciding whether the burden of proof has shifted.

[9]I disagree with Mr Crowe’s argument that the alleged acts of harassment could not reasonably have the requisite effect on the claimant. It will be for the claimant at the final hearing to give her evidence in relation to the effect on her, but, to take an example, it is not difficult to see how being sidelined in relation to an area of work for which she had responsibility could have this effect.

[10]I cannot, on the material available to me, conclude that the complaints have no reasonable prospect of success or little reasonable prospect of success. I, therefore, refuse the application to strike out the complaints or to make deposit orders.

[1]The claimant was employed by the respondent as its Head of Compliance. She held this role from 2017 until her employment terminated on 8 September 2023.

[2]In 2022 the respondent was acquired by the Constellation Group. The claimant remained an employee of the respondent, although this acquisition required the claimant to sometimes work with employees from other companies within the wider Constellation group.

[3]A key part of the claimant’s role (and the role of the team she managed) was financial compliance. The respondent and its subsidiarises operated finance and finance broker agreements. These activities were regulated by the Financial Conduct Authority (FCA).

[4]The FCA introduced key regulatory changes in 2023. The claimant’s role required her to take steps in ensuring the respondent introduced these changes.

[5]In mid-2023, the clamant was offered assistance from Justin Mount, head of compliance with another Constellation group. Unknown to the claimant, Justin Mount was, at the same time, being positioned into a group compliance role.

[6]The claimant was not provided with an opportunity to apply for the role. Indeed, the respondent says that there was no new role. The new job title and salary increase was merely an extension of Mr Mount’s existing role. There was therefore nothing for the claimant to apply for.

[7]The claimant resigned, soon after being told of the new role/job title, claiming that she had been constrictively dismissed and discriminated against.

The Issues

[8]A list of issues had been set out by the Tribunal following a preliminary hearing on 30 August 2024. We discussed this on day one and made a few changes. The updated list is set out in the Annex. It excludes equal pay complaints (and complaints that the parties now agree are to be dealt with as equal pay complaints) that are to be considered under a separate process.

[9]This hearing was listed as a liability only hearing. We informed the parties at the outset of the hearing that we would include findings relevant to paragraphs 3.3.4 - 3.3.6 in the List of Issues (the ACAS issue).

The Hearing

[10]The parties provided an agreed bundle comprising 2610 pages. Reference to page numbers below are references to this bundle.

[11]The claimant gave evidence over days one and 2. Nicola Javaid (NJ) gave evidence on the morning of day 3. NJ was employed by the respondent as a compliance manager, working in the compliance team that was headed up by the claimant. She left the respondent’s employment in February 2023.

[12]Martin Letza (ML) gave evidence on day 3. ML is the legal director of the Constellation Group. From about March 2023, he became (and remains) the respondent’s Company Secretary.

[13]Justin Mount (JM) gave evidence on the morning of day 4. JM was the head of compliance for Cinch (another company within the Constellation Group) and later became Group Head of Compliance.

[14]Finally, we heard from Jamie Crowther (JC) who was at all relevant times the respondent’s Chief Operating Officer. JC left the respondent’s employment soon after the claimant and now works for a competitor business. Findings of Fact The claimant.

Findings of Fact

[15]The claimant has worked in senior compliance roles in the motor trade sector for about 20 years. In 2017 she joined the respondent as its group head of compliance.

[16]The compliance work that the claimant was responsible for included(1) FCA compliance issues;

(2) data protection compliance;

(3) consumer law;

(4) litigation, particularly arising out of compliance issues including claims made by customers relating to vehicle and finance agreements. The claimant qualified as a barrister in 2013 although has not practised, remaining instead in senior compliance roles in the motor industry.

[17]We have been provided with reviews during the claimant’s time with the respondent that indicate she was well respected within the respondent including at Board level. For example: -• Acts as a role model for others in the business for us to 'raise the bar' on compliance and challenge the status quo Madeleine demonstrates the company values and moreover, influences other to raise company standards beyond current ambitions. She has high standards for herself personally which positively influences other around her. She has done a fantastic job in building relationships within the company, and this has been widely recognised. We need to keep building on Madeleine's growing status as a trusted adviser to the company – I don't think she always appreciates how much influence she has, particularly at Board level.

[18]These extracts are from review documents that are largely undated. We find that they dated back to 2019/2020 – a few years after the claimant started work for the respondent and a few years before the respondent became part of the Constellation Group. They are reviews carried out by the claimant’s line manager at the time - Stephen Jones, the respondent’s group counsel and company secretary.

[19]The claimant was known as a hard-working executive (evidence of Jamie Crowther) who strived to ensure and improve regulatory compliance by the respondent and its subsidiaries. The respondent.

[20]The respondent has dealerships and franchises throughout the UK selling motor cars across many major motor brands. Prior to its acquisition by the Constellation Group in mid-2022, it was a publicly listed company. As a result of the acquisition the respondent became a private limited company and sat within the Constellation Group. We refer to this acquisition and the respondent being brought into the Constellation Group as the “Purchase.”

[21]The Constellation Group (“Group”) was (and is) also a significant business in the motor trade sector and had a range of subsidiaries including British Car Auctions and Cinch. Of the businesses within the Constellation Group, Cinch was engaged in the types of financial transactions that fell within the area regulated by the Financial Conduct Authority (FCA). Other businesses within the Group were not regulated by the FCA. Cinch had a head of compliance called Justin Mount (JM) who had worked at Cinch from November 2020. JM remains employed in the Group as the Group’s head of compliance.

[22]The claimant’s complaint of direct sex discrimination particularly, focusses on the actions of JM as well as Constellation Group’s head of legal (Martin Letza ( ML)). Neither was employed by the respondent at the relevant times. They were employed by other companies in the Group. The respondent accepted, at case management stage in these proceedings, that it was vicariously liable for the acts of ML and JM. Other relevant background.

[23]Witness statements include evidence about events that predate the complaints and issues in this case. In addition to the relevant background findings noted above, below are findings we consider relevant background information: -23.1 The Marshall compliance team was a settled team between 2018 and 2022. That is to say that, following the claimant’s appointment in 2017, the claimant assembled (through recruitment) a compliance department for the respondent. The recruited team worked well together.

23.2 That settled status came to an end in early 2023 when 2 members of the team (a team of 5 plus the claimant) left for jobs elsewhere and the respondent had difficulty finding replacement employees. The employees who left were:

• Nicola Javaid, the respondent’s Group Compliance Manager

• Nicola Hall, senior compliance officer.

23.3 During the first half of 2023, the team was understaffed.

23.4 By the second half of 2022 the FCA had made known that the regulatory requirements for financial product providers and brokers would be changing. A new initiative or standard called Consumer Duty (about which we say more below) was being introduced from 1 August 2023.

23.5 Following her recruitment and for most of her employment, the claimant reported into the respondent’s Company Secretary and Legal counsel, Stephen Jones. The comments on the appraisals noted above are his. Mr Jones left the respondent at the end of February 2023 at which stage the claimant started to report to JC (the respondent’s chief operating officer). From that time Constellation’s Legal Director, Martin Letza (ML) became more involved in the respondent. ML was appointed as the respondent’s company secretary in March 2023.

23.6 2023 was a difficult time for the claimant and her team due to departures of key members of the team and difficulties with a project surrounding Consumer Duty (see below). The claimant did not have the benefit of performance reviews in 2022 or 2023. She had met and exceeded set objectives before then. Data Protection

[24]Following the claimant’s recruitment into the respondent and up to the Purchase, the respondent’s compliance department (“Department”) handled data protection issues. By the end of 2022, the data protection work had been transferred away from the claimant’s department into a central Constellation function. The claimant’s evidence (that we accept) is that she did not dispute the decision to transfer the work as she knew by then that she was about to lose one of her team members – NJ. In fact, in early 2023, she lost 2 members of her team. What was initially support from Constellation ended up being a transfer of one of the areas of work and responsibility to another Constellation group company. We recognise that(1) this is a business decision and

(2) corporate groups will often have central functions. The relevance of the decision to this case is the absence of discussion with or involvement of the claimant in this decision, notwithstanding her seniority and experience. From the evidence we have, the decision was made by ML and Alistair Clegg, Constellation’s head of data protection. Litigation

[25]The Department carried out litigation work. This increased considerably in mid2022 after the respondent’s Head of Legal reduced his working hours and the compliance team was asked to take on vehicle related and other customer disputes.

[26]This was announced internally on 1 July 2022 by the Stephen Jones (the claimant’s line manager) (page 973). His announcement included the following: Our Compliance team has extensive experience (over 20 years) in dealing with these types of consumer complaints and disputes, so you are in safe hands. They will aim to provide a first-class service to help you resolve issues that arise, just as Shaun and Michelle have done for many years.

[27]This change followed discussion and agreement between the claimant and Stephen Jones. It resulted in more work for the Department (particularly the claimant) than anticipated at the time that decision was made.

[28]At the end of 2022 the litigation work being handled by the Department increased significantly with the launch of financial mis selling group claims against the respondent and other businesses in the motor industry.

[29]As we note below, the claimant was told by Constellation’s group head of legal in mid-2023, that the civil litigation cases were being outsourced. Again, there was no prior discussion with the claimant about removing these cases from her. The claimant was informed once that decision had been made.

[30]Consumer Duty

[31]By mid-2022 the FCA made clear that they were updating their consumer protection regime. There was then in place a process called Treating Customers Fairly, which set out duties that FCA regulated businesses owed to their customers. This was to be replaced by a new process called Consumer Duty. Sometimes the claimant and witnesses referred to Consumer Duty as an update to Treating Customers Fairly. Whilst we do not need to know the detail, what we do find is that the change or update was significant. Regulated businesses had a lot to do in the run up to its introduction. We heard evidence from JC that competitor dealerships were struggling with the deadline. Indeed, there was an expectation from some in the industry (including JC) that the FCA would move the deadline.

[32]The FCA required regulated businesses to set out in writing their “Consumer Duty Implementation Plan” by 31 October 2022. The respondent’s board completed and agreed the respondent’s Plan on 31 October 2022 as required.

[33]Businesses were required to identify a Consumer Duty champion. In the respondent’s case, this was JC.

[34]Responsibility for ensuring the implementation of Consumer Duty was given to a committee called Retail Compliance Committee (RCC) and responsibility divided between the various members of RCC. The role of the claimant and the Department was to advise and work with JC and members of the RCC towards compliance, to work at putting in place, all relevant measures, policies and processes. We accept the claimant’s evidence that at the same time, a decision had been made (communicated to the claimant by JC) that there would be no additional resource recruited to lead a project implementing consumer duty. The necessary activities would be handled by members of the RCC with support from the Department.

[35]We refer to the implementation of Consumer Duty as the Project.

[36]There is no dispute that insufficient progress was being made by the RCC on the Project. The RCC was meeting less often following the purchase by Constellation.

[37]By the end of March 2023, the respondent acknowledged that it was necessary to recruit a dedicated individual with expertise in financial regulation, to project manage the Project to full implementation.

[38]Unfortunately, that recruitment process did not go well. An individual who had accepted an offer gave backword a couple of days or so before she started. A replacement was quickly identified but did not last more than a few weeks – stating that he was overwhelmed with the expectations of the post. It was not until June 2023 that a replacement was able to start and soon became a valuable resource.

[39]That replacement was James Bell (JB). JB started work at the respondent on 20 June 2023. He was engaged for a fixed term of 6 months and was dedicated to the Project.

[40]Whilst Constellation is a large group of companies, the respondent was the only business within that group that needed to implement Consumer Duty across its various subsidiary companies. Cinch was the other retail business within Constellation Group whose activities were subject to FCA regulation. Cinch had taken a different approach to regulatory compliance. They engaged a third-party business called ITC. Through this contractual arrangement ITC became the regulated business for FCA purposes. It was ITC, not Cinch that was required to implement the new Treating Customers Fairly regime. Cinch had effectively outsourced this responsibility. Mr Dedman’s involvement

[41]Earlier in 2022, the respondent (or Constellation as recent purchaser of the respondent) instructed a legal expert in FCA regulation called Robert Dedman (RD) to review the respondent’s FCA compliance regime.

[42]There was a dispute between ML’s evidence and the claimant’s evidence as to who proposed the commissioning of a report into the respondent’s FCA compliance activities. We find it was the claimant who had contacted ML at the time of the Purchase (late May 2022) to recommend an independent review, particularly around certain changes that were proposed following the departure of the respondent’s chief executive at the time (Daksh Gupta) ensuring that the right people were given responsible roles for internal monitoring of the respondent’s sales processes as well as other proposed changes. It was an executive within Constellation who identified RD as an ideal person to carry out that review and to note that the review would ideally cover additional areas. (email exchanges at pages 895-903)

[43]We have not seen the report – or any part of it. ML told us that it did not go beyond a draft stage and remained subject to solicitor and client legal privilege. The report (or the last draft) was provided by RD on 9 November 2022. In her statement the claimant notes that she considered it was helpful. In his statement, ML makes one comment about the report, that it identified that the Project had not been progressed by the claimant to where it should have been and that there was a risk that the Project would not be concluded by the required deadline. ML’s comments are intended as a criticism of the claimant. The claimant’s evidence is that the report did not say that. On balance, having regard to the evidence provided, we prefer the claimant’s evidence. We note that the report was dated and delivered just 9 days after the respondent had met the deadline of publishing its Consumer Duty implementation plan; that the obligation to ensure compliance with Consumer Duty was an organisation wide one and that the responsibility for its introduction had been given to the respondent’s Retail Compliance Committee (RCC). Further: -43.1 There is nothing from ML or JC or any other senior executive to the claimant highlighting such criticism.

43.2 As we note above, the respondent did not until the end of March 2023, give approval for the claimant to recruit an FCA compliance expert to assist with implementation of the Project.

[44]The absence of any response from the respondent’s board or senior executives within the group, to alleged criticism of the claimant’s lack of project with the project, is another reason why we prefer the claimant’s evidence over ML’s on this point. Heightening concerns about the progress of the Project

[45]What is clear however is that, in the months that followed the publication of the implementation plan, progress on the Project was not as advanced as it should have been. We have already noted the 2 key departures from the compliance team and the recruitment difficulties that the respondent faced when trying to recruit a project manager with the relevant experience. We have also noted that it was only in March 2023 that the claimant was given permission to recruit an additional resource for the Department to focus on the Project.

[46]JC’s evidence was that the motor retail sector as a whole was struggling to meet the FCA deadline. The respondent was not an outlier. Indeed, his evidence is that he (and others) within the sector were expecting the FCA to move its implementation date.

[47]As noted above, members of the RCC had responsibility for implementing different aspects of the Project. A report dated 31 July 2023 explains as follows (page 2083): - “The Plan signed off by the Board in October 2022 was a high-level Plan that captured the main areas in the business that potentially needed focus and attention to implement Consumer Duty: Product and Services, Compliance Framework, Sales and Operations, Colleagues (HR and Recruitment) and Governance and Control. In November 2022, at a Retail Compliance Committee meeting, these broad areas under the Plan were allocated to various individuals (Responsible Persons) within the business - Products and Services to Richard Jenkins, Compliance Framework to Madeleine Ansbro, Sales and Operations to Richard Jenkins, Colleagues to Jo Moxon and Governance and Control to EXCO.

[48]On 5 July 2023 the claimant was told by JC that he had been introduced to someone who might be able to provide some assistance with the Project. By then JC had been introduced to Justin Mount (JM). JC was told that JM had some time on his hands and was available to help. In turn, JC provided that same message to the claimant.

[49]On 5 July 2023 JM and the claimant exchanged emails. JM wrote “Happy to support where I can. Madeleine I’ll set up a quick intro teams call, be nice to talk to another Compliance person!”

[50]Later on 5 July 2023 JM emailed ML and JC. He did not copy in the claimant. “I’ve had an initial chat to Madeline which was very insightful. We are talking again next week at which point I have suggested we bring some thoughts together on quick wins to alleviate some of the pressure points she is experiencing. From first impressions I think I can help to steady the ship but will likely be asking for some budget to do so in the short term.”

[51]The claimant had been told that JM was a resource that could be useful in carrying out some activities to further the Project. She understood that she could use JM in this way. However, the claimant’s view quickly became that there was nothing that JM could usefully help with and it was better for James Bell (who had by the started his employment with the respondent) and herself to continue focussing on the project. Having reviewed correspondence from and with JM at around this time, we accept the claimant’s evidence (at least as far as July is concerned) that JM did not make any significant contribution to the Project. As we explain below that did change in August 2023.

[52]JM had a very different view to the claimant. Unknown to the claimant, JM was positioning himself – with the approval of senior executives within the Constellation Group - as providing leadership to the Department. JM’s positioning started in midJune 2023. The claimant was oblivious to this. She was providing leadership to the Department. She had been doing so for the previous 5 years. The issue she faced in 2023 was a resourcing issue (members of her team having resigned and not being replaced). Outsourcing of litigation.

[53]Whilst JM did not make any significant contribution to implementing the Project, he did take steps to reduce the workload of the Department by outsourcing litigation cases to an external firm of solicitors.

[54]Cinch was facing similar litigation claims and JM and ML were arranging to outsource the Cinch claims. The claimant had no ability to contribute to this decision even though the cases fell within her remit. She was simply told it was happening. Process leading to Mr Mount’s new job title.

[55]We accept JM’s evidence that he was first asked by James Mullins (Cinch CEO) to provide help to the Department. Senior executives in Constellation Group by then recognised that Marshall needed to complete a lot of work to ensure it was ready for the implementation of Consumer Duty. This was something that the claimant had been saying for some time.

[56]Mr Mount’s evidence is this “I was therefore asked if I was willing/able to provide both general support to ease the stretched capacity levels of Ms Ansbro and the Marshall Compliance Team and specific support and assistance on the Project.”

[57]Whilst the initial concern was the Project and a capacity issue, there was not at this stage in June 2023 or at any stage thereafter an indication within discussions between Constellation executives that this was a short-term arrangement. JM, ML and other involved executives within Constellation, expected JM’s involvement with the Department would be permanent/long term. The claimant was unaware of these plans.

[58]JC introduced the claimant to JM on 5 July 2023 – see above. The claimant was told he was a short-term resource who might be helpful.

[59]In parallel with the introductions to (and discussions with) the claimant, communications were taking place about changes to JM’s role. In fact, these communications were well underway by the date that the claimant was introduced to JM (5 July). We summarise these as follows: -59.1 16 June 2023 – JM contacted ML to ask for a discussion to understand what he knew about Marshall’s compliance function. On the same date, JM was introduced to JC.

59.2 20 June 2023 – even at this early stage, JM put forward a proposal to ML under which he would be given a new, more senior role. The proposal was a promotion to a new role of Group (Constellation) Retail Compliance Director. The organisation chart JM provided with the proposal showed this as a role, sitting above 2 head of compliance positions (1 for Cinch and 1 for Marshall). (pages 1454-1456)

59.3 21 June 2023. ML was receptive to JM’s proposal. Some changes were made to the proposal (but nothing fundamental – page 1463) which was then put to James Mullins.

59.4 30 June 2023. ML reported to JM that he had had a discussion with James Mullins who was happy to take discussions further. JM also told ML that a proposed remuneration package was being sent to James Mullins (1510 - 1513).

59.5 26 July 2023, JM emailed ML (page 1883) seemingly about investigations into the Marshalls’ compliance function. It was headed “9 August paper” and attached 2 PowerPoint slides with a heading of “Marshall compliance arrangements” These slides contained recommendations about the compliance team. None of these had been discussed with the claimant. She had no idea that this was happening and was effectively invisible in the review of her own team. JM said in this email “I think we can confirm me in role first and then progress things a little before we make the other role changes in my proposed structure.” JM also indicated that he would mention to the claimant “that I’m having to do the rounds at various management meetings to garner support in my group role capacity. This should set the scene nicely. I’ll bcc you in, so you know what I do.” No such discussion took place between JM and the claimant, who remained unaware of the proposals being discussed in these internal emails. In this email JM anticipated that he would attend a meeting of directors on 9 August 2023 (a meeting we refer to below). We say this because the email included the following “we can share the determination on that element on the 9th” (we assume “that element” is a reference to JM’s recommendations).

59.6 Discussions continued through August. James Mullins had delegated responsibility for negotiations with JM to ML (although ultimately remained the decision maker).

59.7 Constellation agreed terms with JM in early September 2023. See below.

[60]The claimant became suspicious that “something was off” (para 72 of her statement) at a meeting on 1 August when ML became insistent that the claimant should meet with JM and share information with him about Marshalls and the work that the compliance team was doing. That insistence to meet and share information about Marshalls was not consistent with a limited, short-term arrangement with JM because he had some time on his hands. The claimant’s evidence is that the position had quickly moved from Mr Mount as the “compliance helper” that the claimant could find some work for, to being ordered by ML to meet face to face and provide him with information and documents. As of 1 August, ML had given his approval to a proposal that JM be appointed to a group head of compliance role. His instructions to the claimant were consistent with that position. However, the claimant was still kept in the dark about JM’s intended new group role.

[61]The claimant’s evidence (that we accept) is that she decided not to arrange a face-to-face meeting with JM until her return from holiday in early September by which stage she expected to have been able to catch up with JC – her line manager. She wanted to ask him what was going on.

[62]The claimant and JM did however meet remotely, by Teams on 4 August. That meeting was at 11am. JM had asked for a copy of the report and the claimant replied at 08.50 that morning. The claimant’s evidence about this 4 August meeting is that she cannot remember whether a meeting did take place. We find that there was a

[63]JM’s evidence about this meeting is at para 38 of his statement: “On 4 August Ms Ansbro sent me her draft of the report. We then spoke later that morning and I provided Ms Ansbro with my thoughts and feedback on the report and suggested some builds for her too.” Our findings are as follows: -63.1 The claimant did not send JM a copy of the report. She did send a copy of a different but related document called Compliance Matters. (page 2019)63.1.1 The claimant’s evidence.

63.1.2 That JM did not provide any written follow up.

63.1.3 The inaccuracy of JM’s evidence about what was sent him and the vague descriptions in his evidence of what he did or said that might have been helpful.

63.2 JM did not provide any “thoughts” or “feedback” or “suggested builds.” In reaching this conclusion we have taken account of the following: -

[64]The claimant did however email a copy of the Consumer Duty Report on 8 August 2023 (page 2065). She sent this to JC, ML and 2 other directors. The claimant did not copy JM into this email. However, a few minutes after receiving it, ML copied JM in – but not telling the claimant that it was being sent to JM. (page 2019).

[65]By 14 August 2023, JM started to use a signature that referred to him as “Constellation Group Head of Consumer Compliance” (page 2171). But the claimant did not see that signature until her return from holiday on 4 September 2023.

[66]Up to that stage, there is no evidence of any involvement by any HR Function in considering the creation of – and JM’s appointment to - this new role.

[67]There is no indication that anyone other than JM was going to be considered or appointed to the new Group role.

[68]Written confirmation of JM’s new role was sent by Cinch (the company within the Constellation Group that employed JM) to JM on 8 September 2023. (page 2437). The letter is headed “Notification of Change to Terms and Conditions.” It included the following: - “Your role has changed to Group Head of Retail Consumer Compliance.” It also notified JM of his new salary which amounted to an annual increase of £10,000. It provided 2 lines of reporting, one for Cinch compliance and one for Group compliance related activity. Attendance at meetings – without the claimant’s knowledge.

[69]As noted above, the claimant sent the Consumer Duty report to board members on 8 August, in advance of an intended meeting on 9 August 2023.

[70]Later, on 8 August (1pm) JC emailed the claimant and JM, noted he would not be able to review the report until later and asked for a high-level summary to be drafted that afternoon. The claimant replied to say that she would try but had other FCA drafting obligations that afternoon (page 2135). JC then asked JM whose reply was “Thanks. I’m afraid I’m not close enough to it to help with that level of detail” (a reply that supports our earlier findings about the extent of JM’s contribution to the Project). The claimant then told JC that James Bell would be able to assist.

[71]The claimant was not invited to the meeting on 9 August. It is not clear whether JM attended although as noted earlier, he anticipated attending. If he did attend, the claimant had no idea that he was attending what was effectively a meeting of the respondent’s directors discussing the Consumer Duty report that the claimant had put together.

[72]There was a dispute about whether this (and a later meeting) was a board meeting. ML uses the term “Board meeting” to describe the meeting on 9 August (in his email to respondent’s directors dated 18 August 2023 - page 2220). We also note that a PowerPoint presentation was prepared for this meeting and circulated after the meeting. The email circulating this PowerPoint presentation (and other documents) is at page 2211. The sender of that email (Mark Hemus) writes “All please find attached the Board pack from yesterday’s meeting.”

[73]We have decided that it is not important to the issues in this case to find whether it was a duly constituted meeting board meeting or a meeting attended by the respondent’s company secretary and some/most of its directors.

[74]In this same email of 18 August 2023, ML circulated a note that JM had prepared with “his initial comments.” A second document was provided that external auditors (Grant Thornton) had produced referencing an audit of the respondent’s 64 sales sites.

[75]ML also informed recipients of this email, that JM “will be able to give guidance and practical support to the Marshall leadership team and Madeleine but the work needed will need active engagement and prioritisation by this group and your relevant reports….”

[76]JM had just become absent on annual leave when ML sent this email. The claimant was also by then on annual leave but was in work when the documents were sent by JM to ML (14 August) and, consistent with the ongoing behaviour of the respondent, was not copied in or involved. The claimant’s resignation

[77]The claimant was on annual leave for 2 weeks from 16 August. Her first day back at work was Monday 4 September 2023.

[78]Before returning to work, the claimant received an email from JM dated 1 September 2023 in the following terms: - “Hello, hope you are ok. Have you got some time next week for a catch up? I’m moving into a group role as previously mentioned which I think will give you some support on consumer duty. I’ve a few ideas I want to share. Let me know a clear hours slot.”

[79]The claimant replied on Saturday 2 September: “Hi Justin either Wednesday or Thursday afternoon are best meeting slots for me. Excited to know what this group role is that you are referring to?” There is no dispute that the statement “as previously mentioned” is inaccurate. The claimant had not been told before receipt of this email that JM was being moved into a group role.

[80]JM replied by email to the claimant on Monday 4 September 2023, telling her that the “role is pretty loose but essentially a Group Compliance oversight one. I’ve already started cracking on to help you. Can we meet sooner? I’ve had a call with your board this morning on consumer Duty and got them aligned to help.” (our emphasis). JM went on to set out what he expected to happen next.

[81]JM’s attendance in the call with the respondent’s board on 4 September 2023 is referred to by the claimant as one of the reasons for her constructive dismissal. She refers to it as a board meeting. Again, there is a dispute about this. We note that it was a meeting (by telephone or Teams) of members of the respondent’s board of directors. As for whether it was a properly constituted board meeting is irrelevant. As JM accepted in his email of 4 September 2023 he attended a call with members of the respondent’s board of directors. This was the first the claimant knew that JM had been in meetings/discussions with members of the respondent’s board about the claimant’s areas of responsibility. Understandably, the claimant was upset to learn of this.

[82]In response to JM’s request for a meeting sooner than the claimant had proposed, the claimant arranged a discussion with JM later that same day (4 September). The claimant took a file note of this discussion. In these proceedings, the respondent has attempted to put forward a position that the claimant’s file note is not accurate. In his witness statement JM states clearly that it is not accurate and provides a summary of what he called a brief discussion. His summary indicates that he informed the claimant about his new role but that there were no questions from the claimant. He gives no indication that he and the claimant discussed the issue; simply that he provided the claimant with some brief information.

[83]We find the claimant’s file note to be accurate. Indeed, following some adept cross examination by the claimant, JM accepted that it is mainly accurate, even though his statement (paragraph 55) states it is not.

[84]The file note is at pages 2323-2325. It was prepared by the claimant from some notes that she took during the discussion and then, later that day, the file note was typed up by the claimant.

[85]We do not set out all the claimant’s file note. We summarise below, relevant points made:85.1 The claimant told JM that she was very upset to hear about his new group role as well as his attendance at the meeting of the respondent’s board. She asked JM how he would feel if that had happened to him and she had attended a Cinch board meeting to discuss his work, instead of him. JM accepted that he too would have been upset.

85.2 JM told the claimant that he was expecting her not to be happy about what had happened. The claimant told JM she was not blaming him personally as he was only acting on orders.

85.3 JM told the claimant that Cinch was really quiet and his job was not taking up all his time. As the claimant did not have enough resource in her team, he was asked to get involved.

85.4 The claimant told JM that not having been invited to the board meeting to discuss Consumer Duty felt “very cloak and dagger.” JM denied that and noted that he does not know the Marshall business and is not in a position to do “any of the doing” He suggested they attend future meetings together.

85.5 JM told the claimant that ML had asked JM to set up the board meeting, that members of the board didn’t know what the situation was with Consumer Duty and they needed to have information “shoved down their throats.”

85.6 The claimant told JM most work streams under Consumer Duty had started and were in progress but the outstanding actions that had not made progress had all been delegated to various board members and were awaiting completion by them.

85.7 The claimant told JM that Consumer Duty was a board led initiative – that is what FCA required – and why the implementation plan was signed off by the board and was led by a board member. It was not a project to be delegated to the Compliance department.

85.8 The claimant asked why, if further updates or information was needed by Constellation, they had not asked the claimant directly?

85.9 The claimant told JM that his appointment to the group role and the board meeting had been handled insensitively and improperly. If JM was to be of any use to the respondent, then he would have to get to know the business. JM told the claimant that he could be an extra pair of eyes, but he is not coming in to carry out the tasks needed to complete the implementation plan as that is for others to do.

85.10 JM told the claimant that Consumer Duty was “behind the curve” and the claimant responded that was a resourcing issue and that it was important to understand why. She provided detail about the project, areas of responsibility and implementation.

[86]Having learned about JM’s promotion and about his attendance in the call with the respondent’s board, the claimant decided to raise her concerns with JC.

[87]The Claimant and JC spoke on 7 September 2023. Again, the claimant took a note of the call (2438). In his witness statement (paragraph 52), JC disputed the accuracy of the note. On being questioned at the hearing, he did not. His oral evidence was at odds with his statement. We find the claimant’s note to be an accurate summary of the call on 7 September 2023. Relevant points are:87.1 The claimant told JC that JM had been promoted to a group role, had been invited to a Marshall’s board meeting to discuss Consumer Duty and that she was upset.

87.2 When JC replied that he did not understand why the claimant was upset, the claimant told him that she should have been given an opportunity to apply for the group role and she should have been invited to attend the meeting; that she felt “totally disrespected.”

87.3 JC then apologised and told the claimant it was not his decision. He told the claimant that JCs promotion does not affect the claimant’s position, that indirectly the claimant would now need to report to JM but, day to day she would retain a reporting line to JC.

87.4 JC told the claimant that Constellation were not very good at communications and “this is how they do things.”

87.5 The claimant expressed concerns about being pushed out. She told JC of a call she had recently with ML when she “sensed something was not quite right.”

87.6 JC said he would speak with ML and JM and either get back to the claimant later the same day or the following day.

[88]On 8 September 2023, the claimant had a telephone meeting with Richard Jenkins, (the respondent’s head of insurance and one of the executives that was working on the implementation of Consumer Duty/the Project). The claimant made a file note of this meeting (page 2438). We accept it as an accurate summary of the

[89]During this meeting the claimant learned that JM had contacted Mr Jenkins. On discussing progress of the project with Mr Jenkins, the claimant learned that JM may have been working on (and reporting to members of the respondent’s board with) an out-of-date Project report/tracker. Mr Jenkins and the claimant discussed JM’s involvement. Mr Jenkins noted that whilst he appreciates that the businesses were all part of one group, he did not understand what was going on, that JM had just “popped up” a few days earlier in a group compliance role. Mr Jenkins also sympathised with the claimant when she told him that she had no idea that JM was being promoted into a group compliance role; had a Group head of finance and insurance role been created, he would have expected to be given a chance to apply for the role.

[90]Also, on 8 September (timed at 09.52) JM emailed the claimant. JM’s signature on the email referred to his new job title “Group Head of Consumer Compliance” with a Constellation (i.e. group) logo rather than Cinch. This was the first time the claimant had received an email from JM with that signature. In the email JM told the claimant that he had “spent some time” with Richard Jenkins. The email then set out JM’s thoughts and questions about aspects of the respondent’s business. JM started the email with “Happy Friday! I’m very much looking forward to 5pm today.” The claimant’s evidence is that JM was “giddy” about his new role.

[91]The claimant gave notice of resignation by email dated Friday 8 September. (page 2443). She noted 2 issues: -91.1 The new group compliance role should have been brought to the claimant’s attention.

91.2 That JM attended a Marshall board meeting on 4 September, addressed and discussed Consumer Duty progress and agreed a way forward. The claimant had not been invited to the meeting and was not notified of it.

[92]In this resignation email that claimant stated that these actions had made her feel excluded and disrespected, that her competence was being questioned, that there was irreparable damage to her reputation and the relationship of trust and confidence was broken.

[93]We accept that the terms of the email accurately record the reasons for the claimant’s resignation. We also accept the claimant’s evidence that she considered that the actions taken by Constellation executives, particularly ML over the previous months, had excluded her as she considered that a “Boys Club” had operated. We accept that in reaching this view the claimant took in to account recent decisions affecting her and the team she managed, together with the removal of the Data protection work. Post resignation

[94]JC called the claimant on 8 September 2023, following receipt of the claimant’s resignation (note at 2439) in which he asked the claimant not to act in haste. The claimant told JC that it was unlikely she would change her mind. JC asked the claimant to contact him on Monday 11 September. He also messaged the claimant on 11 September to ask her to call him. That email was sent to the claimant’s work email account. The claimant did not see it. She had resigned by then and therefore had not logged on to her work email account.

[95]The claimant did not contact JC on 11 September. On 13 September 2023, JC wrote to the claimant (page 2454) to note the lack of contact, that the respondent would need to process the claimant’s resignation and to offer the claimant a right to raise a grievance.

[96]The claimant did not raise a grievance. In her evidence the claimant was critical of the respondent for not providing her with a copy of its grievance policy. She also noted that the person she blamed for the actions that led to her resignation was Martin Letza and as he was a Constellation executive, the respondent’s own grievance policy (and the respondent’s HR team) would have no jurisdiction over him; also, that she considered the decision had been made and could not be reversed. Terms of the Claimant’s contract

[97]The bundle includes the following documents relating to the terms of the claimant’s employment with the respondent.97.1 A contract schedule (page 524)

97.2 A document headed contract of employment between claimant and respondent

[98]Both documents are signed on behalf of the respondent on 5 May 2017 and by the claimant on 15 May 2017 (524-536).

[99]Various clauses in the document headed contract of employment are expressly subject to the contract schedule. For example: “3. Job Title Your job title is [refer to contract schedule]. In addition to your normal duties of employment you may be required to undertake other duties from time to time of comparable responsibility.”

[100]The same format applies to clauses concerning date of commencement of employment; place of work; hours of work; pay; company vehicles.

[101]There is a conflict between some terms of the contract schedule (Schedule), and the document headed contract of employment (“contract document”). We note here particularly101.1 Holiday entitlement. During the first year of employment, the contract document provides for 22 days; yet the Schedule provides for 25 days.

101.2 Notice (entitlement on dismissal). The contract document provides for a weeks’ notice during probationary period; one month’s notice after then and up to 4 years’ employment, thereafter statutory minimum notice rising to 12 weeks’ notice after 12 or more years’ service. The Schedule proves a month’s notice in the first year or employment and 3 months after then.

101.3 The Schedule provides for private healthcare cover; the contract document makes no referenced to it.

[102]We find that the contract document is a generic document that was (and was intended by both parties to be) read together with (and subject to) the Schedule. The Schedule sets out terms specific to the individual employee (in this case the claimant).

[103]In accordance with the terms of the Schedule, the claimant was entitled to receive 3 months’ notice of dismissal. The respondent’s policies and their application

[104]Part way through the hearing the respondent provided the Tribunal with a copy of an “Equality and Diversity Policy and Statement.” The document is dated December 2018, but it has been presented as operational at the relevant time. The following is relevant: -104.1 The following extract: The Company (that is a reference to Marshall – the respondent) provides equal opportunities covering all aspects of employment, from vacancy advertisement, selection for recruitment and training to conditions of service and reasons for termination of employment. This is to ensure that: - The company has access to the widest labour market and secures the best team members for its business. No applicant or colleague receives less favourable treatment and that wherever possible all team members are given help to attain their full potential Colleagues are recruited on the basis of ability to carry out the job and on merit [the respondent] operate a fair and objective system for recruitment and selection which places emphasis on individual skills, abilities and experience. Selection criteria are utilised to assess an individual’s suitability for a role and various selection tools are utilised to ensure that the recruitment process does not unfairly discriminate directly or indirectly. All managers involved with recruitment and selection receive Equality and Diversity training commensurate with their duties. Steps will be taken to ensure that knowledge of vacancies reach a wide range of applicants internally and externally using various means of advertising. All colleagues are supported to achieve their full potential have probation reviews regular one to ones under annual appraisal to assess review and support any needs they may have there are a wide range of colleague benefits available to all colleagues on these are reviewed regularly to ensure accessibility and that any awards are based upon fair criteria

104.2 Under the heading of “responsibilities” the policy requires managers to work in accordance with the policy, Company Values and Code of Ethics (we were not provided with these)

104.3 Under the heading “Benefits of Diversity” equality is noted as a key business priority as it creates a positive company reputation, furthering the respondent’s aim of becoming an “employment destination and enable us to attract and retain a talented workforce.” Statistical information – gender

[105]We have been referred to gender pay gap reports. We note the following from the 2023/4 reporting year (1089-1094) – percentages of women compared to men in posts in different pay bands. The report is for the respondent and not the wider Constellation group.105.1 Women/men in the upper hourly pay quarter – 13.9%/86.1%

105.2 Women/men in the upper middle hourly pay quarter – 20%/80%

105.3 Women/men in the lower middle hourly pay quarter – 43.3%/56/7%

105.4 Women/men in the lower hourly pay quarter – 48.9%/51.1%

[106]We find that the claimant’s role falls within the upper middle hourly pay quarter or upper hourly pay quarter.

[107]ML gave evidence that a good proportion of Constellation’s legal team working under him are women and that a good proportion of the non-executive directors of Constellation plc are women. Conscious that it is a Group role that is central to this dispute, we considered whether there was any indication that the gender split within the respondent might not be representative of the Constellation group as a whole. We found that the evidence provided by Mr Letza was not evidence of that. We were provided with no evidence to indicate that the gender split at Marshall was in some way not representative of the Group as a whole. In giving evidence JC accepted that the workforce majority in the motor trade was male. We also observe that all the executives (within the wider Constellation Group) making decisions about the claimant, her work and her team were male. Why had the Project not been fully implemented by 31 August 2023?

[108]In this hearing the respondent put forward a position that the delays in project completion were the claimant’s failures. At Paragraph 93 of their submissions document, the position is put as follows: “the respondent took the actions it did to support the claimant in reply to her complaints of under capacity, her request for additional resource and to assist with the completion of a project that the claimant and her Team had failed to deliver.” (Our emphasis).

[109]We accept the evidence provided by JC that there were no issues with the claimant’s technical competence. To the extent that there were any outstanding tasks specifically for the compliance team to do (rather than ensuring the completion of tasks by others) the issue was a resourcing one. That is not surprising given: -109.1 The departure of team members as already noted

109.2 The late appointment of the dedicated consumer duty project manager.

[110]The respondent’s board members needed to action the parts of Consumer Duty that they had responsibility for. JC was the Project lead. The respondent knew the claimant was a dedicated and competent compliance lead; knew that members of the compliance team had left in early 2023; had not agreed to the claimant’s request to recruit a dedicated Consumer Duty project manager until 31 March 2023; knew that various tasks that board members had to undertake were outstanding.

[111]We also note(1) that there is no indication in the contemporaneous documents that the claimant was responsible for aspects of the Project that had not been completed by 31 July

(2) that there is no task that the respondent identified in this hearing that the claimant had failed to complete. The criticism is that the claimant failed (in some unspecified way) to deliver the Project on time; a Project for which she was not the lead, and which was a board led one. Facts relevant to the respondent’s breach of contract claim – case number 2400164/24

[112]The respondent’s position that the claimant was in breach of contract by terminating her employment without notice and it caused losses to the respondent. The respondent provides evidence of intra group charges that it says the respondent incurred because of the claimant’s resignation. The bundle includes the following invoices from Cinch to the respondent112.1 An invoice dated 16 November 2023 for an unspecified month for services described as “Cinch compliance personnel” - £11,660 plus VAT (page 2540).

112.2 An invoice dated 13 December 2023 for Cinch personnel recharge for the month of November 2023 - £11660 plus VAT. (2552)

112.3 An invoice dated 14 December 2023 for Cinch compliance personnel recharge for December 2023 - £11660 plus VAT. (2554)

[113]ML’s statement provides the following evidence. “As a result of Ms Ansbro’s resignation with immediate effect Marshall was required to “outsource” Ms Ansbro’s workload. This included Marshall being required to engage and pay for additional resources from the wider Group. Specifically additional time had to be spent by Mr Mount in Marshall and Marshall were charged by Cinch for this time/his employment costs between November 2023 and January 2024. In addition, both myself and a member of my Group legal team were also outsourced to Marshall to deal with the consumer claims and other issues Ms Ansbro would have otherwise dealt with. The employment costs for this were then cross charged to Marshall.”

[114]The evidence to support ML and his legal team group work is an incomplete invoice or recharge calculation at page 2599 which sets out total charges of £62,633; costs that are (according to the incomplete document at 2599) divided between 3 employees identified as ML, IK and JM. There is no indication whether this amount is net of VAT. The document provided appears not to be an invoice, at least not for VAT purposes.

[115]We are unimpressed with the evidence in support of the respondent’s breach of contract claim. These are our reasons: -115.1 There is no breakdown of time incurred.

115.2 The amounts stated in the invoices for the compliance function (£11,660 per month plus VAT) was according to ML’s evidence, for Mr Mounts time. The amounts indicate that Mr Mount was assigned for the whole of his time (or substantially all his time) during the months of October, November and December 2023. This is at odds with the evidence that Mr Mount provided, who told us how the respondent’s compliance staff covered most of the work following the claimant’s departure.

115.3 The respondent’s position is that the work that needed to be covered by employees in the wider group (excluding external costs) was almost £100,000. If that extent of cover was required, then it is an indication of weight and extent of the claimant’s responsibilities and commitment. Whilst we do not doubt the respondent’s responsibilities and commitment, we consider these costs to be exaggerated. According to the employer breach of contract claim in the respondent’s ET3 (at page 38) the amount being claimed by the claimant is far less than this (£8987.50). But the evidence of ML is that the claimant’s departure caused the internal group charges we have referred to above. As for the amount of £8987.50; we do not understand how that amount has been calculated although are mindful that this weas a liability hearing only. Facts relevant to the comparator issue

[116]The claimant has named Mr Mount (JM) as her comparator for the purposes of the 2 direct discrimination complaints that we need to determine. We find as follows:116.1 The claimant and Mr Mount were both employed in head of compliance roles.

116.2 They were both employed by limited companies that sat within the Constellation Group.

116.3 Both had qualifications and experience that were relevant to their roles.

116.4 Both headed up compliance teams of comparable size. The team headed up by the claimant was a little bigger.

116.5 Both had been in their roles for several years; the claimant’s employment with the respondent was a couple of years longer than Mr Mount’s period of employment with Cinch. Submissions

[117]We have taken account of the submissions made by Mr Crowe and by the claimant in making our findings of fact, in considering the relevant law and reaching our conclusions. Relevant Law Time limits

Relevant Law

[118]Section 123 Equality Act 2010 (EQA) provides that complaints may not be brought after the end of 3 months “starting with the date of the act to which the complaint relates” (s123(1)(a) EQA). This is modified by section 140B – providing for early conciliation.

[119]Section 123(1)(b) provides that claims may be considered out of time, provided that the claim is presented within “such other period as the employment tribunal thinks just and equitable.”

[120]Section 123(3)(a) provides that “conduct extending over a period is to be treated as done at the end of that period.” (We refer to this below as a continuing act).

[121]As for the exercise of the power under section 123(1)(b) we note the following passage from paragraph 25 of the judgment of Leggat LJ in Abertawe Bro Morgannwg University Local Health Board v. Morgan

[2018] EWCA Civ 640

the discretion given by section 123(1) of the Equality Act 2010 to the employment tribunal to decide what it “thinks just and equitable” is clearly intended to be broad and unfettered. There is no justification for reading into the statutory language any requirement that the tribunal must be satisfied that there was a good reason for the delay, let alone that time cannot be extended in the absence of an explanation of the delay from the claimant. The most that can be said is that whether there is any explanation or apparent reason for the delay and the nature of any such reason are relevant matters to which the tribunal ought to have regard. Harassment – section 26 Equality Act 2010 (“EQA”)

[122]Section 26 (1) states: “A person (A) harasses another (B) if – (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) The conduct has the purpose or effect of (i) Violating B’s dignity, or (ii) Creating an intimidating, hostile, degrading, humiliating or offensive environment for B

[123]The EAT decision in Richmond Pharmacology Limited v. Dhaliwal

[2009] IRLR 336

emphasised the need for Employment Tribunals when deciding allegations of harassment to look at three steps, namely: -a. Whether the respondent had engaged in unwanted conduct

b. Whether the conduct had the purpose or effect of violating the claimant’s dignity or creating an adverse environment

c. Whether the conduct was on the grounds of the applicable protected characteristic?

[124]Unwanted means unwanted by the claimant, a term that should be largely assessed subjectively (Sanderson Blinds Ltd v. English EAT 0316/10)

[125]To satisfy the definition of harassment, the alleged conduct must be “related to” the claimant’s sex. This is wider than the wording “because of” that appeared in equalities legislation predating the Equality Act 2010. We considered the judgment in the recent EAT decision in Carozzi v. University of Hertfordshire

[2024] EAT 169

, particularly paragraphs 13-17.

[126]As to whether the conduct in question has the effect set out in section 26(1)(b), regard must be had to section 26(4) “In deciding whether conduct has the effect referred to in subsection 1b, each of the following must be taken into account.(a) the perception of B.

(b) the other circumstances of the case.

(c) whether it is reasonable for the conduct to have that effect? Direct Discrimination – section 13 Equality Act 2010 (“EQA”)

[127]Section 13 states: “A person (A) discriminates against another if, because of a protected characteristic, A treats B less favourably7 than A treats or would treat others.”

[128]An important question for us is whether the claimant’s sex was an effective cause of the respondent’s treatment of the claimant. As was made clear in the case of O’Neill v. St Thomas More Roman Catholic School

[1996] IRLR 372

the relevant protected characteristic need not be the only cause of the treatment in question.

[129]We also note the following: -a. the House of Lords in Nagarajan v London Regional Transport

[1999] ICR 877

, HL, held “discrimination may be on racial grounds even if it is not the sole ground for the decision……..If racial grounds or protected acts had a significant influence on the outcome, discrimination is made out.” (judgment of Lord Nicholls)

b. Paragraph 3.11 of the EHRC Employment Code which states that ‘the characteristic needs to be a cause of the less favourable treatment, but does not need to be the only or even the main cause’

[130]Section 13 provides that direct discrimination occurs where an individual is treated “less favourably” than another. It is generally necessary therefore to identify a comparator who does not share the claimant’s protected characteristic, although claimants can rely on a hypothetical comparator (the term “or would treat others” within the wording of section 13 makes this clear).

[131]Section 23(1) EQA requires that there is “no material difference” between the claimant’s position and his/her comparators position. Case law makes clear that the comparator’s circumstances do not have to be the same in all respects; rather they have to be the same (or nearly the same) in those circumstances which are relevant to the claimant’s claim. (see for example the decisions of the House of Lords in Shamoon v. Chief Constable of the Royal Ulster Constabulary

2003 ICR 337

and MacDonald v. MOD; Peace v. Mayfield School

2003 ICR 937

). Burden of Proof

[132]We are required to apply the burden of proof provisions under section 136 EQA when considering complaints raised under the EQA. Section 136 states: This section applies to any proceedings relating to a contravention of this Act. (2) If there are any facts from which a court could decide in the absence of any other explanation, that a person (A) has contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection 2 does not apply if A shows that A did not contravene the provision.”

[133]We have considered the guidance contained in the Court of Appeal’s decision in Wong v. Igen Limited

[2005] EWCA 142

. This case concerned the test as set out in discrimination legislation that pre-dated the EQA, but the guidance provided in there remains relevant. It is the annex to the judgment particularly that provides guidance. (the amended Barton guidance). We note the following particularly from the guidance (recognising that the guidance is now relevant to the application of s136 EQA)a. That it is guidance only and not a substitute for the statutory language

b. It is for the claimant to prove on the balance of probabilities, facts from which the tribunal could conclude, in the absence of adequate explanation, that the respondent has committed an unlawful act of discrimination. If the claimant does not prove such facts, then the claim will fail.

c. It is unusual to find direct evidence of discrimination.

d. It is important to note the use of the word “could” at s136(2) – that, at this stage of analysis, a definitive determination does not have to be made.

e. The Tribunal needs to decide what inferences of secondary facts can be made from the primary facts at this stage, on the assumption there is no adequate explanation for those facts?

f. Where the claimant has proven facts from which the Tribunal could conclude that the respondent has treated claimant less favourably on the grounds of (in this case) the claimant’s race then the respondent must prove that it did not do so. It must prove that the treatment of the claimant was in no sense whatsoever on the grounds of the claimant’s race.

g. The tribunal will need to assess

(1) whether the respondent has provided an explanation for the relevant facts and

(2) that the explanation is adequate to discharge the burden of proof on a balance of probabilities.

h. The facts necessary to discharge the burden of proof would normally be in the possession of the respondent and a tribunal would therefore normally expect cogent evidence to discharge that burden of proof.

[134]We have considered the EAT’s helpful guidance at paragraph 15 of the judgment in Talbot v Costain Oil, Gas & Process Ltd, Costain Group Plc, Costain Ltd

UKEAT/0283/16

: - 15. ……. Proving and finding discrimination is always difficult because it involves making a finding about a person’s state of mind and why he has acted in a certain way towards another, in circumstances where he may not even be conscious of the underlying reason and will in any event be determined to explain his motives or reasons for what he has done in a way which does not involve discrimination. It seems to me that the principles to be derived from the authorities are these:(1) It is very unusual to find direct evidence of discrimination.

(2) Normally the Tribunal’s decision will depend on what inference it is proper to draw from all the relevant surrounding circumstances, which will often include conduct by the alleged discriminator before and after the unfavourable treatment in question.

(3) It is essential that the Tribunal makes findings about any “primary facts” which are in issue so that it can take them into account as part of the relevant circumstances.

(4) The Tribunal’s assessment of the parties and their witnesses when they give evidence forms an important part of the process of inference.

(5) Assessing the evidence of the alleged discriminator when giving an explanation for any treatment involves an assessment not only of credibility but also reliability, and involves testing the evidence by reference to objective facts and documents, possible motives and the overall probabilities; and, where there are a number of allegations of discrimination involving one personality, conclusions about that personality are obviously going to be relevant in relation to all the allegations;

(6) The Tribunal must have regard to the totality of the relevant circumstances and give proper consideration to factors which point towards discrimination in deciding what inference to draw in relation to any particular unfavourable treatment.

(7) If it is necessary to resort to the burden of proof in this context, section 136 of the Equality Act 2010 provides in effect that where it would be proper to draw an inference of discrimination in the absence of “any other explanation” the burden lies on the alleged discriminator to prove there was no discrimination.

[135]This is a case in which, when considering the complaints of direct discrimination particularly, we have considered what inferences can be drawn. In so doing we have been mindful of the instruction of the Court of Appeal in the judgment in Chapman v. Simon

1994 IRLR 124

(para 43) (and referred to in the EAT’s judgment in Qureshi v. Victoria University of Manchester

2001 ICR 863

): - It is of the greatest importance that the primary facts from which such inference is drawn are set out with clarity by the tribunal in its fact-finding role, so that the validity of the inference can be examined. Either the facts justifying such inference exist or they do not, but only the tribunal can say what those facts are. A mere intuitive hunch, for example, that there has been unlawful discrimination is insufficient without facts being found to support that conclusion We note particularly the need for inferences properly drawn to be supported and justified by clear findings of fact. Finally, on the issue of burden of proof, we are also mindful of guidance from case law indicating that something more than less favourable treatment may be required to establish a prima facie case of discrimination; see for example Madarassey v. Nomura International

[2007] ICR 867

(Madarassey), where the following was noted in the judgment: “The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.” Constructive Dismissal

[138]The claimant claims(1) that her resignation amounted to a constructive dismissal and

(2) that this dismissal was unfair under s98 of the Employment Rights Act 1996.

[139]Dismissal for the purposes of s98 includes the circumstances stated at s95(1) (c). “….an employee is dismissed by his employer if………. the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.”

[140]In considering the issue of constructive dismissal, an Employment Tribunal is required to consider the terms of the contractual relationship, whether any contractual term has been breached and, if so, whether the breach amounts to a fundamental breach of the contract (Western Excavating (ECC) Limited v. Sharp [1978] QC 761).

[141]It is an implied term of every employment contract that the employer shall not without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. We refer to this term as “the Implied Term.” It was approved by the House of Lords in Malik v. Bank of Credit and Commerce International SA (in compulsory Liquidation)

[1998] AC 20

(Malik).

[142]In considering the Implied Term, Browne-Wilkinson J in the earlier case of Woods v WM Car Services (Peterborough) Limited

[1981] ICR 666

(Woods) ( referred to in and approved by Malik) said that the tribunal must “look at the employer’s conduct as a whole and determine whether it is such that its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it.”

[143]Woods also made clear that a breach of the Implied Term is, by definition a fundamental breach of the contract of employment.

[144]A course of conduct can cumulatively amount to a fundamental breach of contract entitling an employee to resign and claim constructive dismissal following a “last straw” incident, even though the “last straw” is not, by itself, a breach of contract: Lewis v Motorworld Garages Limited

[1986] ICR 157

CA.

[145]In the judgment of the Court of Appeal in Omilaju v Waltham Forest London Borough Council

[2005] 1 All ER 75

(Omilaju). Dyson LJ stated as follows in relation to the last straw. “A final straw, not in itself a breach of contract, may result in a breach of the implied term of trust and confidence. The quality that the final straw must have is that it should be an act in a series whose cumulative effect is to amount to a breach of the implied term. I do not use the phrase “an act in a series” in a precise or technical sense. The act does not have to be of the same character as the earlier acts. Its essential quality is that, when taken in conjunction with the earlier acts on which the employee relies, it amounts to a breach of the implied term of trust and confidence. It must contribute something to that breach although what it adds may be relatively insignificant.”

[146]We also note Mr Crowe’s reference to Omilaju, to make the point that there is no breach of contract simply because a claimant may subjectively feel that a breach has occurred.

[147]To show a breach of an Implied Term, it is for the employee to prove that the employer acted without reasonable and proper cause and for the Tribunal to consider that question objectively. (RDF Media Group v. Clements

[2008] IRLR 207

at para 103).

[148]Once a repudiatory breach of contract has been established, it is necessary to consider the part it played in the claimant’s decision to resign.

[149]If an Employment Tribunal decides that the termination of a claimant’s employment falls within s95(1) the employer must show the reason for dismissal and that the reason for dismissal was a potentially fair one under s98(1) and (2) ERA. We note here that the respondent does not try to deny that any constructive dismissal was fair.

[150]There is no issue in this case about a long delay between the alleged repudiatory act/last straw and the claimant’s resignation indicating that the claimant affirmed the contract. ACAS Code of Practice

[151]Section 207A (3) Trade Union and Labour Relations (Consolidation) Act 1992 (TULRA) provides as follows: - “If in the case of proceedings to which this section applies it appears to the employment tribunal that:(a) the claim to which the proceedings relate concerns a matter to which a relevant Code of Practice applies

(b) the employee has failed to comply with that Code in relation to that matter

(c) that failure was unreasonable the employment tribunal may if it considers it just and equitable in all the circumstances to reduce any away employee by more than 25%

[152]This provision gives an employment tribunal a broad discretion to reduce (or – under the equivalent provisions at section 207A (2) – increase) awards, based on what it considers to be just and equitable.

[153]A relevant Code of Practice is the ACAS Code of Practice on Disciplinary and Grievance Procedures. We set out below the extract we consider relevant to the issues in this case: - “Let the employer know the nature of the grievance32. If it is not possible to resolve a grievance informally employees should raise the matter formally and without unreasonable delay with a manager who is not the subject of the grievance. This should be done in writing and should set out the nature of the grievance. Hold a meeting with the employee to discuss the grievance.

33. Employers should arrange for a formal meeting to be held without unreasonable delay after a grievance is received

34. Employers employees and their companions should make every effort to attend the meeting. Employees should be allowed to explain their grievance and how they think it should be resolved. Consideration should be given to adjourning the meeting for any investigation that may be necessary.”

[154]At paragraph 77 of the decisions in Sir Benjamin Slade Baronet, v. Melissa Biggs (EA-2019-000687) the EAT (The Honourable Mr Justice Griffiths) provided guidance to employment tribunals when exercising the discretion to provide (in that case) an uplift. It recommended employment tribunals apply a 4-stage test:154.1 Is the case such as to make it just and equitable to award any ACAS uplift?

154.2 If so, what does the Employment Tribunal consider a just and equitable percentage, not exceeding although possibly equalling 25%? (any uplift reflecting all the circumstances including seriousness and/or motivation for the breach)

154.3 Does the uplift overlap or potentially overlap with other general awards such as injury to feelings; and if so, what in the Employment Tribunal’s judgment is the appropriate adjustment, if any, to the percentage of those awards to avoid double counting?

154.4 Applying a final sense check, is the sum of money represented by the application of the percentage uplift arrived at by the Employment Tribunal disproportionate in absolute terms and if so, what further adjustment needs to be made? Conclusions Time Limits

Conclusions

[155]Based on the findings made, no time limit issues arise. Constructive Unfair Dismissal

[156]The claimant says there were 6 things that happened that, when considered individually and collectively, amounted to a breach of the Implied Term. 1. The respondents not giving the claimant the opportunity to apply for the alleged group compliance role to which Mr Mount was appointed in September 2023.

[157]It is not disputed that the respondent did not give the claimant that opportunity. the respondent says that there was no opportunity to provide; that the group compliance role was merely an extension of JM’s role.

[158]We conclude that the role that JM was given was a promotion. It was a group role that did not previously exist. A new job title and new (increased) salary was applied to the role. Under a new structure, the claimant was to have a reporting line in to the new group role.

[159]JM was well aware that the claimant would have wanted the opportunity to apply for a group role. He told the claimant that he knew she would be disappointed to learn of his appointment (Para 85) 2. Not promoting the claimant to the alleged group compliance role to which Mr Mount was appointed in September 2023.

[160]It is not disputed that the claimant was not appointed to the new group compliance role. JM was. 3. Not inviting the claimant to a board meeting of the first respondent on 4

[161]The claimant was not invited to the meeting on 4 September. There was not at any stage any intention to invite the claimant. There was an intention to invite JM, who then attended the meeting.

[162]As for the format of the meeting and whether it was an official meeting of the respondent’s board of directors, we have decided this is irrelevant. See paragraphs 72, 73 and 81. 4.Mr Mount incorrectly and unfairly portraying the claimant in an unjustified bad light by using an out-of-date progress report at that board meeting.

[163]The claimant reached an understanding from what she learned in discussion with Mr Jenkins (see para 89) that JM might have made a presentation to the respondent’s board by using an out-of-date report. However, the evidence on this point was far from clear.

[164]We have not heard evidence that JM incorrectly and unjustifiably portrayed the claimant in a bad light at the meeting on 4 September 2023.

[165]Further, these were not reasons for the claimant’s resignation (see paras 91- 93). It is not necessary therefore for us to reach a conclusion on this allegation. 5. Mr Letza and Mr Crowther leaving Mr Mount to inform the claimant of his alleged promotion.

[166]JM was the person who informed the claimant of his promotion. 6.Mr Mount having a meeting with Richard Jenkins to discuss Consumer Duty progress without notifying or inviting the claimant.

[167]This meeting occurred without the claimant’s knowledge. See our findings at para 89. Did that breach the implied term of trust and confidence? Taking account of the actions or omissions alleged in the previous paragraph, individually and cumulatively, the Tribunal will need to decide: whether the respondent had reasonable and proper cause for those actions or omissions, and if not whether the respondent behaved in a way that when viewed objectively was calculated or likely to destroy or seriously damage the trust and confidence between the claimant and the respondent.

[168]The respondent did not have reasonable and proper cause to promote JM into the group compliance role, without any consideration for the claimant. It unfairly (and without reasonable and proper cause) denied the claimant the opportunity to advance her career.

[169]The claimant had not in any adequate way been involved in discussions to address resourcing of her team and specifically the Project. There was no reason to exclude the claimant from any decision-making process as the respondent did.

[170]As far as the claimant was concerned up to 4 September 2023, JM had been identified as a temporary resource; a resource that was not considered by the claimant as helpful but was nevertheless temporary.

[171]Had JM’s involvement been limited then, whilst the claimant may not have agreed with the decision to appoint JM as a temporary resource to assist in completing Consumer Duty (and may not have regarded his input as adding any value) the need to cover a resourcing issue whilst Consumer Duty project concluded might have been a reasonable and proper cause for JM’s temporary involvement.

[172]However, a temporary resourcing issue, was not a reasonable or proper cause for JM’s permanent promotion to a group role, without any competitive process (and therefore without giving the claimant the opportunity to apply for the position).

[173]The reasonable and proper cause that the respondents identified is at paragraph 53 of Mr Letza’s statement: “In order to avoid any further capacity issues at Marshall it was decided to make Mr Mount’s position permanent.”

[174]We put the respondent’s argument another way - an executive with capacity (because they are not busy enough in their current role) (executive A) can be promoted over an executive who does not have capacity (executive B) because junior members of their team have left the business and there has been a difficulty in filling vacancies. We do not accept that is a reasonable and proper cause for promoting executive A without considering executive B for the promotion.

[175]We find that the respondent’s action of ignoring the claimant, by not providing her the opportunity to apply for the permanent group compliance role, by itself was a fundamental breach of the Implied Term. There is no evidence that the respondent’s actions were calculated to destroy trust and confidence There was not a conscious and calculated thought process on the part of ML and JM to do this. The evidence is that the claimant was irrelevant, ignored, forgotten by the respondent when it (and the wider Constellation group) processed JM’s promotion. Viewed objectively, it was an act that was likely to destroy or seriously damage the trust and confidence that the claimant had in her employer, and it did have that effect. The claimant reasonably regarded it as undermining her position, and as an act of discrimination against her. Had the respondent had any reasonable consideration for the claimant’s position, it would have recognised that the action of promoting JM above the claimant and of not giving the claimant the same opportunity as JM to apply for the group position, was likely to have that effect.

[176]The other reasons for the claimant’s resignation are secondary to this reason. We conclude as follows: -176.1 We are not critical of the decision not to automatically promote the claimant into the group role. It is clear from the evidence in this case that the claimant considers herself to be more experienced and qualified than Mr Mount. That may be the case, but qualities other than qualifications and experience may have been legitimately considered in a recruitment exercise (we do not know because one did not occur). This allegation adds nothing to the claimant’s constructive dismissal complaint.

176.2 The decision to invite JM to the board meeting and not the claimant is consistent with the decision to promote JM. We accept (as did JM in his call with the claimant – para 85) that the claimant was upset by it. It was one of the reasons why the claimant resigned although the decision to promote JM and not give the claimant an opportunity to apply for the promoted position was the main reason why the claimant resigned. Based on our findings of fact, we conclude that the claimant considered (reasonably) that this undermined her position with the respondent’s directors with whom she had worked. Again, the claimant was ignored. We have made a finding that a failure to provide the claimant with an opportunity to apply for the group role was in itself a fundamental breach of the Implied Term. But if we are wrong on this then we find that the act of inviting JM to the respondent’s board meeting and not the claimant was a further act which, when considered with the decision not to give the claimant an opportunity to apply for promotion, amounted to a breach of the Implied Term. The respondent should have recognised that its decision to keep the claimant in the dark about the meeting of 4 September and instead to invite JM to give the board an update on the Project, was likely to damage the claimant’s trust and confidence in the respondent. It undermined the claimant’s position with the respondent board and was also reasonably regarded by the claimant as humiliating.

176.3 Using an out-of-date report and portraying the claimant in a bad light. We have not made any findings that JM portrayed the claimant in a bad light. See conclusions above (para 162-164).

176.4 JM informing the claimant of his promotion. Our conclusion is that the claimant would have been upset about the decision whoever informed her of it. It was the decision rather than way that it was communicated, that caused the fundamental breach.

176.5 JM meeting with Richard Jenkins. Again, this is secondary to (and consistent with) the decision to promote JM into a new group role. Our reasoning and conclusions are the same as those relating to the decision to invite JM to the meeting on 4 September 2023. It was an act that was likely to damage the claimant’s trust and confidence in the respondent, and it did so. Was the breach a fundamental one? The Tribunal will need to decide whether the breach was so serious that the claimant was entitled to treat the contract as being at an end.

[177]Yes. A breach of the Implied Term is, by definition, a fundamental breach of contract (Woods). Was the fundamental breach of contract a reason for the claimant’s resignation.

[178]Yes. See the terms of the claimant’s resignation letter and our findings at para 93. Did the claimant affirm the contract before resigning, by her conduct? The Tribunal will need to decide whether the claimant’s words or actions showed that they chose to keep the contract alive even after the breach.

[179]This point is not argued (and not arguable). The claimant discovered JM’s appointment on 4 September 2023 and had resigned within the week. Her conduct in the interim period made clear that she had not affirmed the contract. Fairness

[180]The respondent accepts that if the claimant was constructively dismissed, that dismissal was unfair. Wrongful Dismissal

[181]Having made a finding that the claimant was constructively dismissed, the remaining issue under this heading is the length of the claimant’s notice period.

[182]The claimant was contractually entitled to 3 months’ notice of termination of her employment, not one month as the respondent has asserted. See our findings at paras 97- 103. Harassment related to sex. Did the respondent do the following alleged things: 1. Not inviting the claimant to a board meeting of the first respondent on 4 2. Mr Mount incorrectly and unfairly portraying the claimant in an unjustified bad light by using an out-of-date progress report at that board meeting. 3. Mr Letza and Mr Crowther leaving Mr Mount to inform the claimant of his promotion. 4. Mr Mount having a meeting with Richard Jenkins to discuss Consumer Duty progress without notifying or inviting the claimant. If so, was that unwanted conduct? Was it related to sex? Did the conduct have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant? If not, did it have that effect? The Tribunal will take into account the claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.

[183]The alleged things 1,3 and 4 above happened. None of these things was wanted by the claimant. However, the conduct complained of was not related to the claimant’s sex. It was related to (and followed) the decision to promote JM to a group compliance role. Those things would have happened whether or not there had been discrimination in the process of promoting JM to the group compliance role (see below).

[184]For this reason, the harassment complaints fail.

[185]We also note that the things complained of were consequences of the discriminatory act as found below and may be relevant when considering remedy, whether and (if so) to what extent the claimant’s feelings were injured. Direct Sex Discrimination What are the facts in relation to the following allegations: 1. The respondent not giving the claimant the opportunity to apply for the group compliance role to which Mr Mount was appointed in September 2023. 2. Not promoting the claimant to the group compliance role to which Mr Mount was appointed in September 2023.

[186]See our conclusions above under the heading constructive dismissal. Through their acts, JM, ML and, to some extent, James Mullins (who had the final say on JM’s new employment terms) denied the claimant the opportunity to apply for the group compliance role. Did the claimant reasonably see the treatment as a detriment?

[187]To the extent that the claimant considered it detrimental not to have been automatically slotted into the group role without a competitive process, that was unreasonable on the part of the claimant. She was not a “shoe in.”

[188]It was however reasonable for the claimant to have seen the treatment of not affording her a chance though a competitive process of being appointed into a group compliance role, as a detriment. If so, has the claimant proven facts from which the Tribunal could conclude that in any of those respects the claimant was treated less favourably than a man in the same material circumstances was or would have been treated? The claimant says she was treated worse than Mr Mount. The claimant relies, in the alternative, on a hypothetical comparison.

[189]We accept the claimant’s position that JM is an appropriate comparator in relation to the complaint that the respondent did not give the claimant the opportunity to apply for the group compliance role. JM was given that opportunity and appointed. Having regard to the requirements of section 23 Equality Act 2010, we conclude that, other than the difference of sex, there is no material difference between the claimant’s circumstances and JM’s

[190]The claimant was treated less favourably than Mr Mount. Mr Mount was provided with the opportunity of being appointed to the group role. The claimant was not. If so, has the claimant also proven facts from which the Tribunal could conclude that the less favourable treatment was because of sex?

[191]We are mindful of the judgment in Madarassey, that a difference in sex is not in itself sufficient material from which a Tribunal could conclude there had been discrimination.

[192]There is no direct evidence that Mr Mount was given the opportunity to be appointed into the group role because he was a man. There is no direct evidence that the claimant was not given the opportunity to apply for the role because she was a woman.

[193]We have therefore considered carefully whether we should draw inferences from the facts as found by us, having regard to the authorities and guidance noted above. The following are relevant findings of fact: -193.1 That the group compliance role was a new position into which JM was appointed.

193.2 The new group compliance role was a permanent promotion.

193.3 JM was no more qualified or experienced in compliance matters than the claimant. Indeed, from the evidence provided, it is the claimant with more relevant qualifications and experience.

193.4 That only 13.9% of roles in the respondent’s upper pay quarter are held by women and only 20% of the upper middle roles are held by women. These statistics indicate fewer opportunities for women to progress to senior positions than men, particularly taking in to account the fairly even gender split in more junior roles.

193.5 That the respondent did not until day 3 of this hearing, provide an Equality and Diversity policy. Having regard to this (and our finding that JM was appointed to a promoted position) the respondent failed to comply with its policy. It did not provide equal opportunities covering recruitment into the new group compliance role. Contrary to the terms of the policy (para 104 above) it did not recruit JM on the basis of ability to carry out the job and merit; it did not operate a fair and objective system for selection with emphasis on individual skills, abilities and experience; it did not take steps to ensure that knowledge of vacancies reached a wide range of applicants internally.

193.6 That the evidence of respondent witnesses was lacking in a number of material respects. We were particularly unimpressed by: -193.6.1 The conflict between the statements and the oral evidence in relation to the telephone meetings of 4 and 7 September 2025 (JM and JC).

193.6.2 ML’s evidence to support the employer’s contract claim.

193.6.3 The evidence about the meetings noted above not being board meetings (primarily ML’s evidence).

193.7 The failure to involve the claimant in decisions affecting her role and her team. In addition to the appointment of JM to the group role, we note our findings about the litigation work and the data protection work. We contrast this with the extensive discussions and consultation with JM about the changes.

[194]None of these facts, by itself would have been sufficient for us to draw inferences from which we could conclude that the less favourable treatment was because of the claimant’s sex. However, when considering these facts in total, together with the difference in treatment between claimant and comparator, we conclude that discrimination could have occurred and that that we must look to the respondent for its explanation. If so, has the respondent shown that there was no less favourable treatment because of sex?

[195]The respondent’s explanation is that JM was given a new job title and a higher salary but there was no new vacant position created and therefore no open recruitment process. JM’s existing role was expanded. He was not appointed to a new vacant position.

[196]We have made a finding of fact that the group role to which JM was appointed was a new position and based on that finding, we reject the respondent’s explanation. But we have given this further thought and add the following to our conclusion:196.1 Had JM’s group role been a temporary elevation, for example pending completion of the Project, that would have given more credibility to the respondent’s explanation. But it was not. It was a permanent appointment to a new group role.

196.2 The fact that (initially at least) JM continued as head of the Cinch compliance team did not mean that he and only he could be appointed to the new role. If that were so, then a tactic (of expanding a male employee’s existing role, with new job title and salary and ignoring a comparable female employee) could amount to an easy and divisive way to avoid equality of opportunity in internal recruitment.

196.3 Had the claimant been given an opportunity to apply for the new permanent group role and been successful she could have continued to head up the Marshall compliance team.

[197]As we have rejected the respondent’s explanation, we make a finding of direct discrimination.

[198]We recognise that we concluded, in our judgment on the constructive dismissal complaint, that there was no conscious calculation on the part of ML and JM to destroy the relationship between claimant and respondent. In so far as we need to consider further the direct discrimination complaint beyond our decision to reject the respondent’s explanation, we accept the claimant’s submission that there was unconscious bias at work. This conclusion is supported by the facts from which we have drawn inferences. Employer Contract claim

[199]The claimant was constructively dismissed. She did not breach the contract of employment by resigning without giving notice. ACAS CODE

[200]Our conclusion is that the claimant did not comply with the ACAS Code of Practice.

[201]The claimant told the respondent what her grievance was (verbally in telephone calls on 4 and 7 September 2023 and in the terms of her resignation letter of 8 September 2023). Having regard to the terms of the Code, we conclude that when the claimant aired her complaints/grievances in the telephone calls she did so informally. The respondent then provided the claimant with the opportunity to raise her grievance formally through its grievance policy. The claimant ignored that invitation.

[202]The respondent (and the wider group) is a large organisation. The holding company is a public limited company with non-executive directors. Whilst we did not receive detail of the respondent’s (and Constellations) wider structure we are also sure that there were plenty of executive directors within the group who had not been involved in the relevant processes and decisions relevant to the claimant’s grievance who could have been appointed to consider and reach decisions on the claimant’s grievance.

[203]We do not accept the claimant’s explanations for not pursing the grievance: -203.1 There was nothing to stop the claimant raising a grievance just before or at the same time as her resignation. That would still have provided an opportunity to resolve the dispute internally.

203.2 As for the explanation that the respondent had not provided the claimant with a copy of the grievance policy, we note that the claimant was a senior executive with the respondent and manager of people. Had the claimant any doubt about what the policy and procedure required her to do, she could (and should) have asked for a copy.

203.3 The claimant’s criticism about not being provided with a copy of the grievance policy is not consistent with her criticism about the respondent’s policy having no jurisdiction over Constellation executives. If she needed to be informed about the terms of the policy, then she cannot have known whether the terms covered group structure. As it was the date of the grievance policy predated the purchase by Constellation.

203.4 It is not uncommon for an employer to modify its grievance procedure to take account of individual circumstances such as the seniority of the aggrieved employee and the involvement of employees within a wider group structure.

203.5 There is no evidence to indicate that the respondent would not have provided a fair grievance process.

[204]We have decided that it is just and equitable to apply a percentage reduction in accordance with section 207(A) TULRA. As for the percentage to be applied, we have decided that should be an issue for consideration at the remedy hearing. In reaching this decision we have had regard to the 4-stage test set out in Biggs. It seems to us that application of that test requires a decision on percentage deduction to be made at the same time as making decisions about the types and amounts of awards. Approved by