Miss N Ayub v Northern Care Alliance NHS Foundation Trust: 2412233/2023

EMPLOYMENT TRIBUNALS

Case No 2412233/2023

Between

Miss N AyubClaimant

Northern Care Alliance NHS Foundation TrustRespondent

Before

Employment Judge Eeley

In person for claimant

Mr P Sangha (instructed by counsel) for respondent

Date 25 April 2026

JUDGMENT

[1]The complaint of direct race discrimination is not well-founded and is dismissed.

[2]The complaint of indirect religious discrimination is not well-founded and is dismissed.

[3]The complaint of harassment related to religion is not well-founded and is dismissed.

[4]The complaint of harassment related to race is not well-founded and is dismissed.

[5]The claim of constructive unfair dismissal is not well-founded and is dismissed.

REASONS

[1]By a claim form presented to the Tribunal on 6 December 2023, the claimant pursued various claims against her former employer, the respondent. Some of those claims were contained within the original ET1 claim form, whereas others were added at a later date by way of amendment. The list of issues for determination at the final hearing was at page 121 of the agreed hearing bundle.

[2]The claimant pursues claims of constructive unfair dismissal; harassment related to religion or belief (section 26); indirect discrimination in relation to religion or belief (section 19); and direct race discrimination (section 13). At the start of the hearing the parties agreed that the list of issues at page 121 of the hearing bundle was accurate and complete.

[3]During the course of the final hearing (on the afternoon of day 3) the claimant applied to amend her claim. She applied to amend her claim to add a complaint of harassment related to race (section 26 Equality Act 2010). She alleged that her colleague Karen Nelson had a conversation with her colleague Kainat Yasseen at the home of a service user. During the course of that conversation, it is alleged that Karen said: “But you’re all bloody British anyways aren’t you, you know what I mean?” (lines 7 and 8 at page 368). The claimant alleges that this constitutes harassment related to race pursuant to section 26 of the Equality Act 2010. I heard submissions on behalf of both parties.

[4]I gave my decision and reasons for it orally. In summary, I noted that the case involved covert recordings and transcripts of those recordings. I noted that at the start of the final hearing I took the parties to the list of issues in the hearing bundle and obtained the parties’ agreement that this was the complete list of allegations of discrimination and unfair dismissal that I would have to decide at the end of the hearing. At that stage nobody sought to add to the list of complaints in the list of issues. Just before lunch on day 3 the claimant was part way through cross examining Karen Nelson and I had cause to remind the claimant which parts of the conversation under consideration formed the basis of her legal claims and which did not. The list of issues does not include the “you’re all bloody British” comment. The claimant appeared surprised by this and I again explained the relevance of the list of issues and that she would need to make an application to amend her claim if she intended to ask the Tribunal to find that this particular comment was harassment within the meaning of the Equality Act 2010. After the lunch break the claimant confirmed that she wished to make an amendment to add an allegation of harassment related to race based on the comments set out at lines 7 and 8 on page 368 of the bundle. The claimant is representing herself and suggested that she had not appreciated the significance of the list of issues, that she had not checked the annex to Employment Judge Porter’s case management summary or flagged up that there was a problem with the list of issues. She confirmed that she had received the document at some point in December 2025 (when she says that she was overwhelmed with preparatory steps related to the rest of the case.) She thought that she had mentioned the particular allegation elsewhere in the documentation and thinks that she was perhaps confused between her list of issues and the respondent’s draft list of issues (which were both considered during the previous preliminary hearing before Judge Porter.)

[5]The respondent opposed the application. The respondent suggested that the application was made too late in the proceedings and that there was no real justification for the claimant not including it in her claim at some earlier stage. Respondent’s counsel took me through the documents and the relevant page references. In particular, at page 112 paragraphs 19 and 20 direct the parties to consider the list of issues to check that it accurately records all complaints and issues to be determined at the final hearing and states that they should notify the Tribunal and the other party within 14 days if they identify any problems with the list of issues. Mr Sangha also referred me to the draft list of issues that the claimant had prepared for the preliminary hearing (which was not in the hearing bundle). He indicated that this document only sought to add the “race card” comment to the list of issues. (This comment was attributed to a different colleague Kainat Yaseen.) Paragraph 21 at page 112 of the hearing bundle shows that this was discussed and the claimant decided (at that previous hearing) not to amend to add that to the claim. Rather, she chose to refer to this comment as background/context for the existing claims. I was also directed to consider the claimant’s further and better particulars document (particularly page 49, page 57, and page 59.) I have reviewed those documents and counsel is correct; they do not refer to the proposed amendment to add the “bloody British” comment as an allegation of harassment. The claimant produced three more further particulars documents on a voluntary basis, without directions from the Tribunal (page 90, page 99, and page 93.) These documents had not been submitted as amendments to the claim and they did not include this particular allegation.

[6]It was regrettable that this situation arose so late in the proceedings. In the normal course of events we would conclude the hearing and make a decision in line with the existing list of issues. However, the proposed amendment is significant and I have to apply the guidance from the appellate case law in making a decision on the amendment application. It is a significant amendment in that it adds a further allegation of a different type of harassment. It is important that the amendment application was made very late in the day, part way through the final hearing. The relevant witness has already given her evidence. The amendment relates to an incident which occurred on 3 September 2023 (or thereabouts.) This hearing was taking place in mid-February 2026, some 2 years and 5 months after the comments first came to the claimant’s attention. Appellate case law indicates that I should not refuse the amendment application solely because it has been made at a late stage in the proceedings. Indeed, applications can be made right at the end of proceedings. The claimant did not have a particularly good explanation or reason for not including this allegation in her case before. She says that, as a litigant in person, she had been overwhelmed by preparation of the rest of the case. It could be said that this is something of an afterthought to the main claim (which focused on the uniform issue). However, my main task is to consider the relative hardship and injustice between the parties of granting or refusing the amendment, particularly the practical consequences of any decision.

[7]Mr Sangha effectively conceded that he could not identify any forensic prejudice to the respondent if I were to permit the amendment. The amendment necessitates a relatively limited area of new enquiry as the amendment concerns a very discrete and specific allegation. In particular (and perhaps unusually) the Tribunal and the parties actually have access to the recording of the comment, together with a variety of transcripts of the recording. We also have heard the witness evidence from the relevant witness and she has been asked questions about it. Consequently, I am in a position to make a decision in relation to the allegation based on the evidence that we already have. No new evidence is required. It is preferable to assess the merits of the claim on the evidence rather than to eliminate it from my considerations altogether. It is not an allegation that is entirely without merit, it is reasonably arguable. It is a discrete area of factual and legal enquiry. The amendment application is late but the applicable extension of time limit provisions are those in section 123 of the Equality Act. I would have to consider whether it was just and equitable to extend time to hear any late claim. In any event, the fact that an application is late is not an absolute bar to permitting the amendment.

[8]I have decided to grant the claimant permission to make the amendment. On this occasion I have concluded that the balance of hardship and prejudice favours allowing this very specific, very limited amendment in the case which is being run by a litigant in person, where there is no specific or significant prejudice to the respondent. I am satisfied that both parties can have a fair trial of the issue if the amendment is permitted. However, I have determined the application to amend on its merits with the very specific reasons behind it. Any further applications are not to be encouraged and will be viewed and assessed on their own individual merits. Any further amendment applications will not necessarily be successful.

[9]For the purposes of the final hearing, I received evidence in written and oral format from the following witnesses:(a) Naziya Ayub, the claimant, former Healthcare Assistant Band 3.

(b) Margaret Stainthorpe, claimant’s witness and friend.

(d) Agnes Leopold-James, Assistant Director of Nursing Services in the Children’s Community Nursing Services Team.

(e) Karen Nelson, Healthcare Assistant, Band 4.

(f) Charlotte Bennett, Lead Nurse, Paediatrics.

(g) Lucy Lees, Assistant Director of Nursing.

[10]I also received a written witness statement from Lisa Fern, who was Interim Assistant Director of Nursing Services (Children’s Community Services) at the relevant time. She was unable to attend to give oral evidence due to ill health. The witness statement was signed. I therefore admitted it into evidence as a hearsay statement and gave it such weight as was appropriate in circumstances where the witness had not attended the hearing for cross examination. The claimant objected to this witness statement being included in the papers before me. She maintained that the evidence contained factual inaccuracies and contradictions to the evidence in the hearing bundle. I confirmed that she should draw my attention to those contradictions and inaccuracies in closing submissions and I would take that into account in making my findings of fact.

[11]There was a witness statement for a further witness, Wendy Bacon (former Team Leader for the Children’s Home Ventilation and Complex Needs Team.) A witness order had been issued in relation to Wendy Bacon on or about 10 February 2026. On Friday 13 February 2026, the witness contacted the Tribunal to indicate that she would not be available to give evidence on Monday 23 February (which was the day intended for her to give her witness evidence.) She attached confirmation of flights which indicated that she would be travelling back from holiday on the day in question and would not be able to give evidence as a result. (She was out of the country for the previous week.) She also maintained that she should not have to give evidence for health reasons. As it was clearly not practical for her to give evidence on 23 February, I asked the respondent’s representative how they wished to proceed. Counsel made it clear that oral evidence from the witness was essential, from the respondent’s point of view. Hence, an application was made to add a further hearing date at which the Tribunal could receive Ms. Bacon’s evidence. The claimant is unable to attend the Tribunal outside of school holiday periods. Consequently, the case was re-listed for the next available dates during school holidays at Easter (i.e., 30 and 31 March).

[12]Upon her return to the UK, Ms Bacon renewed her application to revoke the witness order on health grounds. The application was supported by medical evidence. The parties were given an opportunity to make any relevant representations on the issue before I decided the application on paper. I decided to revoke the witness order so that Ms Bacon was no longer required to attend the final hearing to give oral evidence. In such circumstances, I will read her witness evidence and take it into consideration. However, the weight to be given to the evidence will be adjusted to take account of the fact that Ms Bacon’s evidence was not tested in cross examination.

[13]In deciding the case I also had regard to an agreed hearing bundle which contained 1115 pages. (It was added to during the course of the hearing so that it eventually contained 1115 pages following additional disclosure by the respondent.) I read those pages to which I was referred by the parties. In addition, the claimant provided audiovisual clips which she had been given by a service user’s family during the course of the relevant events in the case. There were, in fact, three versions of the transcripts of the recordings within the hearing bundle. However, the claimant maintained that I needed to listen to the recordings for myself as the tone of voice of the speakers was relevant to the issues in dispute and she did not agree that the respondent’s transcript of the recording was an accurate one. I therefore obtained the audiovisual clips in MP4 format and listened to them before the claimant started her evidence. In addition, the respondent provided a draft chronology and cast list. The chronology was subsequently agreed by the claimant. I received closing submissions on behalf of both parties.

Findings of fact

[14]The claimant was employed as a Healthcare Assistant (“HCA”). The claimant describes her ethnicity/racial characteristic as British Pakistani. She is Muslim. In accordance with her faith, she dresses modestly. In the claimant’s case, modest dress means wearing a headscarf and an Islamic dress, a jilbab. This is a dress which covers the body from neck to ankle. The volume of fabric in the dress disguises the shape or outline of the wearer’s figure. This is the way in which the claimant chooses to practise and manifest her faith. She maintained in evidence that this was the best option available to comply with any religious requirement for modest dress. She was asked questions about other alternatives, such as a long top worn with trousers and long sleeves. She maintained that, for her, this did not amount to modest dressing and was not suitable. Whilst others might consider alternative outfits to be sufficiently modest, the claimant maintained that the only appropriate option for her was the headscarf worn with the jilbab. She was prepared to wear long sleeves and roll them up to the elbow when doing clinical work. In answer to direct questions from the Tribunal, she confirmed that trousers of any sort would not be considered modest even if the trousers were baggy or loose fitting. For her, a long skirt or dress was a requirement. The clash between the claimant’s religious observance and the respondent’s dress code is at the heart of the dispute in these proceedings.

[15]The claimant began her employment with the respondent on 8 March 2021. She was employed as a Healthcare Assistant at Band 3 within the Agenda for Change (“AFC”) pay scales. She was initially engaged on a fixed term contract until 7 March 2022. She worked within the Children’s Long Term Ventilation Team (“CLTVT”). The team working for the CLTVT consisted of Healthcare Assistants working at Band 3 and Band. 4. The Healthcare Assistants were engaged in providing direct care to children requiring longterm ventilation. This included managing gastrostomy feeding and performing suctioning procedures. The Healthcare Assistants would work in the community and would care for the patients within their own homes and also in public, such as when they were attending school.

[16]Wendy Bacon was the claimant’s line manager. She was the CLTVT’s lead, managing a community team of 30 staff.

[17]On 15 May 2023, the claimant had a supervision session with her direct line manager Wendy Bacon. There was a written record of the discussion within the hearing bundle. During the course of the conversation, Ms Bacon raised the issue of the claimant’s work uniform. She described that the claimant was wearing long black sleeves under her (work) tunic and that the tunic was unbuttoned and worn over the top of the black top, opened up like a jacket. The claimant was also wearing a gold bangle. Ms Bacon records that she explained to the claimant that she was not dressed as per uniform policy and that she had to be bare below the elbow when carrying out clinical duties. The claimant is recorded as saying that she rolled her sleeves up and, when this was discussed, she said she would take her bangle off. Ms Bacon also explained that the claimant should have her tunic fastened up. The claimant explained that the tunic was too small for her. Ms Bacon explained that they (the respondent) had just ordered her a new larger uniform. The claimant seemed to accept this but explained that it was not ironed. This was her explanation as to why she was not wearing the larger uniform fully and correctly buttoned up. (In the course of her evidence to the Tribunal the claimant accepted that she had received the larger uniform but asserted that she had not ironed it because she had been working 12 shifts back-to-back and had not had opportunity to do any ironing prior to the shift in question.) The record shows Ms Bacon telling the claimant that there was an expectation that she would arrive on shift with the correct uniform and wearing it in the correct manner. The claimant apparently stood up and Ms Bacon records that she noticed that the claimant was wearing a long black dress under her tunic and did not have uniform trousers on. She pointed out to the claimant that she was not in correct uniform. It appears that the claimant asked Ms Bacon if she had a problem with Muslim dress. Ms Bacon says that she explained that she had no problem at all with Muslim dress but, as the claimant’s manager, she had a duty to point out when clinical staff are not in the correct uniform. The claimant is recorded as saying that Ms Bacon should speak to all the staff. Ms Bacon records that she replied that she intended to do this but was only speaking to Miss Ayub because she was physically present in front of Ms Bacon, not wearing the correct uniform. The claimant indicated that she was not happy and Ms Bacon asked her to sit down so that she could explain what was expected of her. The claimant refused to do so, stated she wasn’t happy, and walked out. Ms Bacon asked her not to leave but Ms Ayub ignored her.

[18]Ms Bacon then attached the uniform policy to the notes of the supervision meeting at the request of the Service Lead.

[19]The Trust’s workwear policy was contained within the hearing bundle. Some of the relevant provisions are as follows: “The professional image presented by staff is an important component in the way we are perceived by colleagues, patients and the public. For clinical and nonclinical staff, uniform or a professional image can promote trust and confidence to patients, carers and families. The Trust recognises the right for staff to adhere to religious and cultural observances. We will take a sensitive approach when this affects dress and uniform requirements. However, priority will be given to health and safety, security and infection control considerations. If you feel additional consideration needs to be taken into account on the grounds of religion or culture, you can raise it with your line manager in order for adjustments to be made. This policy follows in full the Department of Health Guidance: uniforms and workwear policies for NHS staff 2010.” Under the heading infection control at section 5.1 the document states: “This policy fully adopts the Department of Health’s “bare below the elbow” policy. All staff working in any clinical area should be bare below the elbow unless PPE prevents this. “Bare below the elbow” means no long sleeves (e.g., jackets) and that shirts are either short sleeved or that shirt sleeves are rolled up to the elbow. This applies to all staff when working in clinical areas, or where patient contact is involved (e.g. wards, theatres and outpatients et cetera). For religious reasons of modesty, and if there are any medical skin conditions which the staff member does not wish to expose, certain adjustments can be made which would not compromise infection control, such as the provision of disposable sleeves and gloves to be used when entering clinical areas, ensuring hand washing is undertaken before and after their use and that they are disposed of after each usage. Wristwatches/wrist jewellery, stoned rings should not be worn in clinical areas.” In a section entitled standards the following standards were set out: “1.8 Workwear clothing and footwear must be interpreted in such a manner so as not to compromise safety and the Trust’s workwear policy. 1.10 Any staff that find it difficult to comply with these guidelines because of religious or cultural issues should bring their concerns to the attention of their line manager as soon as possible. Staff may also bring to the attention of their manager any recommendation made by occupational health regarding workwear (e.g. suitable footwear).”

[20]On 5 June Wendy Bacon sent an email to all team members attaching the respondent’s workwear policy [178]. In the final bullet point on that email she said, “I would also like to remind all staff we have a robust workwear (uniform) policy within the Trust and a copy of the policy can be found on the intranet, but I have also attached a copy for you on this email. Again it is integral all staff maintain correct uniform policy for IPC purposes, for your own protection and also to uphold the professional you are and the trust you represent, random uniform audits will also be taking place over the course of the next few months and staff not in correct uniform will be informed. Finally, I would like to take this opportunity to thank you all for the amazing work you do, all these above measures are there for your safety and for the safety of the individuals we support in the community and therefore it is imperative they are adhered to. Thank you.” A copy of the respondent’s workwear policy was attached to the email. In addition, Ms Nelson gave evidence that her line manager, Wendy Bacon, asked Ms Nelson to let her know if any members of staff were not wearing the correct uniform.

[21]On 16 June 2023 there was a meeting between the claimant and Wendy Bacon where there was a further discussion about uniform. The hearing bundle contained notes of the meeting which indicated that the claimant was present with Wendy Bacon and with Lisa Kendall taking notes. Ms Bacon informed the claimant that she had asked to see her regarding some concerns which had been raised which needed to be discussed with her. There then followed a discussion covering such topics as professional boundaries and communication and respect. The discussion then turned to the issue of the uniform policy. The following exchange between the claimant and Ms Bacon was recorded: “Wendy asked Nazia [sic] why she can’t wear uniform pants. Nazia explained that she must wear dress which is modest. Wendy asked Nazia why she did not consider Trust trousers to be modest as you can’t see legs when wearing them. Nazia that’s a matter of opinion. Wendy explained she would further [sic] into what can be classed as modest dress (Trust) and to ensure we are maintaining workwear policy and infection prevention policies for uniform. Nazia requested an increase in uniforms (4) was only given 3. Wendy explained she can have another tunic no issues and to request this with Jeanette.”

[22]On 29 June 2023, the claimant raised concerns that she was being discriminated against because of modest clothing choices for work. This was recorded in the staff contact sheet. The claimant wrote: “Hi Lisa, I would like to bring to your attention work discrimination as I feel I have been discriminated against by Wendy Bacon on a few occasions because of my modest clothing choices for work. I have worn the same clothes for the past 2 years with no complaints as this was agreed by Nurse Claire Palmer when I first started work. I have had 2 conversations with Wendy over this matter over 2 weeks ago, the work dress code was emailed to all staff by Wendy, but she failed to mention in this that uniform policy should be adjusted for modesty as it is stated in the infection control policy. Secondly, I had a wellbeing meeting last week with Wendy Bacon and straight after she informed me there was an incident and that she had to call someone in to take minutes. This shocked me. I had no notice and had no time for bringing in my own representative.” The action point records that a meeting was arranged on 30 July 2023 at the ICC to follow up on this notification in the staff contact sheet.

[23]On 29 June 2023, the respondent sought advice on the topic of religious or modest clothing choices and the respondent’s uniform policy. The Equality and Inclusion Manager (Stephanie Chadwick) provided some advice on the topic. This was included within the email from Ms Bacon to the claimant on 29 June. The following was set out within the body of that email: “Just to clarify what the advice would be. It is reasonable to ask for the lower part of the headscarf to be tucked into the neckline of the uniform, rather than covering the top of the neckline. This approach leaves the work issued uniform highly visible and is in line with how other NHS organisations approach staff wearing head scarves as clinicians.• Member of staff is expected to dress in line with uniform policy. In this case, that means wearing NCA issued workwear.

• Reasonable adjustments can be made to uniforms to meet religious (or cultural or other) requirements, providing other risks this might bring (e.g. infection control) are considered before agreeing. Based on some of the issues raised by this member of staff, you might want to discuss and hopefully agree the following with them:

a. can wear a long sleeved top under work tunic or work dress to cover arms. This would be on the basis that when “bare below the elbow” clinical work is then required during a shift, the sleeves can be pushed back underneath the uniform and disposable sleeves are available for use. All infection control measures would need to be taken as expected-I know you mentioned a specific handwashing procedure that must still be adhered to. I wouldn’t expect the top itself to be visible anywhere other than sleeves or neck/chest area (probably just sleeves on show if headscarf worn). Would suggest you speak directly to Infection Control team if unclear on guidance about PPE/handwashing etc in this case.

b. Current uniform options are dress with tights or tunic and trousers. If tights do not meet individual needs, do they have a concern with tunic and trousers? If tunic is not considered sufficiently modest, I’d recommend adjustment to dress with trousers. These would be the work issued dress and trousers. I understand that these are indeed “trousers,” rather than close-fitting leggings.”

[24]On 13 July 2023 Lisa Fern met with the claimant to discuss the issues including that of uniform. The contents of the discussion were recorded in the staff contact sheet. “Uniform:-been wearing an Maxi Islamic Dress for 2 years (pulls sleeves up). Agreed by Claire Palmer (B6 now left the service). Doesn’t wear pants at home. Working in clinic few weeks ago, Wendy asked to come up. Feels came out of the blue. Tunic was open as it was tight. Tunics are tight-asked for another size. Wendy said could have 4 but Jeanette (Admin) said 3. Advised needs to change every day. Also had on a bracelet and anklet on which has since been removed. Wendy said she had never seen Naziya in the dress however Naziya advised that she had. Naziya said that she “didn’t see what the problem is.” Wendy didn’t say why she was picking up the uniform issue. Reason for why the uniform was being addressed discussed by myself-recent incident; action plan from the incident; standard reset to all staff. Naziya advised she needed to protect her modesty and didn’t want her body shape/outline to be visible. Naziya said she felt picked on because of what she was wearing. This was brought up at a second meeting. Wendy was “lying to me” as she has seen me in this uniform before. Naziya said that Wendy stated she doesn’t understand why there is a problem wearing pants-doesn’t feel modestly dressed. Claire had seen her and not said anything (had apron on and sleeves rolled up). At 2nd meeting (with Lisa Kendall), Wendy didn’t give any options (reasonable adjustments for uniform); didn’t want to hear about it, doesn’t look for solutions. Feels bullied.” There were further matters recorded including some concerns raised by Kainat, one of the other carers. The claimant felt that Kainat was lying about her. The record of the discussion indicates that there were difficulties between the claimant and Kainat and also Christine. The claimant felt uncomfortable with another individual named Maggie. In the ‘action’ column the claimant is recorded as saying she felt better after discussing the matters with Lisa and did not want formal action regarding the concerns she had raised but she felt unable to trust Wendy. The claimant was to consider mediation with colleagues and Wendy to support the building of trusting relationships. The claimant was due to call or email Lisa after Lisa’s holiday with an update and to let her know what options she would like to try in relation to uniform. Lisa records that she advised that once the uniform has been agreed, Lisa would write to confirm the outcome of the agreement. The audio recordings.

[25]The claimant was made aware of some video recordings that a service user’s family member had taken. These recorded snippets of conversation between Karen Nelson and Kainat Yaseen when they were talking at the service user’s home. The two Healthcare Assistants were unaware that they were being recorded. The family member sent the recordings to the claimant and she had received them by about 3 September 2023. The suggestion is that they were recordings of conversations which took place on the 15 or 22 August 2023. Karen Nelkson was engaged as a Band 4 HCA.

[26]The Tribunal was provided with the audiovisual recordings and viewed/listened to them. In addition, there were three versions of the transcript of the recordings within the Tribunal hearing bundle. The first of these was the claimant’s own transcript of what she could hear on the recording. The second of the transcripts was the transcript taken during the respondent’s grievance investigation process. As set out below, the investigating officer, Charlotte Bennett, decided that she did not want to listen to the recordings for herself in case she misinterpreted what was on them, given that she had already heard the claimant’s allegations. Effectively, her view was that she was unable to listen to the recordings without preconceived ideas of what they would contain or how they should reasonably be interpreted by the listener. Before deciding to get a transcript, she took HR advice to check that what she was doing was acceptable. Upon receiving that advice, she proceeded to get a third party to provide the written transcript. It was that transcript that was used during the course of the grievance investigation and which the relevant witnesses were allowed to examine when being asked questions about what had been said. The third version of the transcript was that which had been compiled by the respondent’s solicitor during the course of these Employment Tribunal proceedings.

[27]It is fair to say that there are differences between all three versions of the transcript. That said, there is a significant degree of overlap and many of the differences can be explained by the presence of background noise and distortion in the recording itself. The third version of the transcript (i.e., that provided by the respondent’s solicitor) is the most comprehensive version but the witnesses were taken to all three versions at various stages during the oral evidence at the Tribunal’s final hearing.

[28]The transcript of the first conversation which was produced for the internal investigation is set out as follows: Person 1- [distorted sound] They’re racist, and I was like well if they are racist they wouldn’t have hired you would they. Person 2-That would be racist, wouldn’t it? Person 1-Yeh Person 2-If they only hired British girls, English girls, white girls, whatever you want to call us. Do you know what I mean? Person 1-Yeh Person 2-But you’re all bloody British anyways aren’t you, do you know what I mean. Person 1-Yes, so it was quite funny, she used to [distorted sound] I’ve never known, I’ve worked in the NHS for 8 years. I’ve never known somebody use the race card. Person 2-I tell you what she did do, she went out for lunch with Naomi, there was something going on. I only brought this up.

[29]This was the conversation which was relevant to the amended claim which included a single allegation of harassment related to race. The respondent’s solicitor’s version of the transcript was slightly fuller. The material section was as follows: KY: They’re racist, and I was like if they were racist they wouldn’t… KN: Well that would be, that would be racist wouldn’t it… if they only hired British girls, English girls, white girls whatever you want to call us, do you know what I mean. KY: Yeah KN: But you’re all bloody British anyway aren’t you, do you know what I mean? KY: Yeah, so it was quite funny like, she uses it a lot and I was like, I’ve never known, and I’ve worked in the NHS for 8 years, I’ve never known somebody use the race card so much as Naziya. KN: That’s it, what she did do, she went out for lunch with Naomi, because there was something going on… [inaudible]… uniform, and I only brought this up…

[30]For completeness, the claimant’s transcript of the same conversation (which was done on 15 March 2024 set out the following: 1. (Kainat Y) look who is a racist I was like if I was racist 2. they bullied behind me wouldn’t they 3. (Karen N) Well that would be racist wouldn’t it if they only 4. hired British girls English girls like us what you wanna call us 5. like us you know what I mean? 6. (Kainat Y) (Laughing) Yeah 7. (Karen N) But your all bloody British anyways aren’t you you 8. know what I mean? 9 (Kainat Y) (Laughing) Yeah 10. (Kainat Y) (laughing) Yeah it was quite funny she was I’ve 11. never known, I’ve worked in the NHS for 8 years, I’ve never 12. known someone to use the race card so much as Naziya 13. Ayub. 14. (Karen N) Because I’ll tell you what she did do she went out 15. for lunch with Naomi because if there was something going 16. on about the uniform I only brought this up.

[31]The transcripts for video number 2 were as follows: Transcript for respondent’s internal procedure: Person 2-It was a waist coat, button it up and that wear leggings or trousers or whatever. So I was saying something like this at K…’s, there was Naomi and another member of staff I can’t remember who it was now and we was talking about uniform and I said we have all got to wear the correct uniform. I said I know Naz isn’t and I said if I see her I will say to her you need to wear the correct uniform because we should, this is what Wendy said. The claimant’s version of a transcript of the same conversation stated: 1. (Karen N) It was a waistcoat instead of putting it up and that 2. you know wear leggings or trousers or whatever anyways, so 3. I was saying something like this at K…..’s there was 4. Naomi and another member of staff but I can’t think who it 5. was now we was talking about uniform. I said we’ve all got to 6. wear correct uniform because we should be able to wear this 7. is what Wendy said. The transcript version provided by the respondent’s solicitor in relation to the same conversation recorded: KN-“was a waistcoat as opposed to proper like you know button it up and that… which you know, just like wear leggings or trousers or whatever… so erm, so anyway so I was saying something like this at K……’s… and we were talking, there was Naomi and there was another member of staff, I can’t remember who it was now, we were talking about uniform. I said we’ve all got to wear the correct uniform. I said, I know Naz isn’t, I said if I see her, I will say to her, you need to wear correct uniform because we should be all wearing it, this is what Wendy said.”

[32]The respondent’s internal transcript for video three stated: Person 2-we did used to wear them T-shirts, staff aren’t supposed to wear them now. I stopped wearing mine I chucked them out, I was wearing mine at night with trousers, but because of this massive inspection we have to be in pristine uniform, so if anybody is not in uniform they’ve got to be told or you got to say that you should wear proper uniform and when I was speaking to Wendy about it, in fact I had gone in to see Wendy about some thing else and Naz phoned up about she was in this meeting with me, so I just said oh, I don’t know, I said something, I told her about this business of altering the bed so she said “Karen every time I speak to her she turns it into an argument and the biggest argument we’ve with her at the” The claimant’s transcript version of this recording was: 1. (Karen N)-We did use to wear T-shirts they said 2. we’re not supposed to wear them now. I stopped 3. wearing mine at night with my bloody trousers but 4. because of this massive inspection we’ve got to be in 5. prestine uniform so if anyones not in uniform 6. they’ve got to be told or you’ve got to say you’ve 7. got to wear proper uniform and when I was 8. speaking to Wendy about it (laughing) in fact I’d 9. gone in to see Wendy about something else and 10. Naz had phoned up whilst she (Wendy) was in 11. this meeting with me and erm, so I just said oh 12. this business about altering the bed so erm so 13. she said Karen every time I speak to her 14. (Naziya) she turns it into an argument. And she 15. said the biggest argument we’ve got with her 16. (Naziya) at the minute. The respondent’s solicitor’s transcript for the same conversation stated: KN-So we did used to wear [inaudible] t shirts and staff are not really supposed to wear them now, I mean I stopped wearing mine [inaudible] because I was wearing mine at night, just like with my bloody trousers, but because of this massive inspection we’ve got to be in pristine like uniform so if anybody is not in uniform, they’ve got to be told, or you’ve got to say that you should be wearing like proper uniform, and when I was speaking to Wendy about it, in fact I’d gone in to see Wendy about something else, and Naz had phoned up while she was in this meeting with me and erm, so I just said oh, I don’t know I’d said something I said oh, and I told her about this business about altering the bed, so erm so she said Karen, she said every time I speak to her, she turns it into an argument, and she said the biggest argument we’ve got with her at

[33]On 25 August 2023 Lisa Fern emailed the Health and Safety Adviser (Tammy Towers) to get some advice regarding the issue of workwear. She described the claimant’s role and what the claimant was wearing whilst at work. She confirmed that advice had been sought from the Equality and Diversity and Inclusion team but that the staff member (i.e., the claimant) was not accepting that her current workwear was not suitable. In the email she explained the discussions that had taken place and the options which had been discussed. Lisa Fern asked Tammy whether there was anything else she could advise on before Lisa contacted the claimant again.

[34]Tammy Towers responded to the request for advice by email dated 29 August 2023. She stated, amongst other things, that from a health and safety perspective, “the main hazards would be slip/trip/fall (e.g. if having to respond to an urgent medical event, moving and handling the patient or equipment, traversing up/down stairs especially with equipment etc); entanglement/clothing getting caught on equipment or fixtures. As you have indicated there may also be infection control issues. With regards to the length of dresses you should speak with the Sewing Room at the Laundry as they will be able to advise on the maximum length of dresses. Also what about the longest length of uniform dress plus scrub type bottoms (in the same colour) as this would reduce the amount of excess material, allow freedom of movement and significantly reduce the body outline.”

[35]On 4 September 2023, the claimant emailed Lisa Fern. The subject matter of the email was “re: Kainat & Karen.” She wrote, “I have concerns regarding the 2 above staff and Wendy B. I would like to meet with you and discuss this. I would also like to show you some evidence of racist remarks being made and religious discrimination and victimisation that I am still suffering. I want to progress and put a grievance in.” Lisa Fern responded with a copy of the grievance policy and offered to meet with the claimant the following week. The claimant responded with availability and confirmed that she would like to try scrubs.

[36]Lisa Fern met the claimant on 7 September 2023. The claimant alleged that Wendy Bacon was discriminating against her due to uniform. Lisa Fern’s written evidence is that she reminded the claimant how the workwear standards came into force and reassured her that she had not been singled out. They discussed reasons why the Islamic dress was not suitable, including the advice that Lisa had sought from the Health and Safety Team. Other options were again proposed for the claimant to try including scrubs, trousers and tunic, dress and tights, or a dress and leggings or uniform trousers/scrub trousers. During the same meeting, the claimant explained that she had been sent the video recordings referred to above and that the video recordings showed other members of staff talking about her (the claimant). Lisa Fern listened to the video recordings and heard the two staff members discussing uniform. She could not, herself, tell who the staff members were at the time. When she discussed the claimant’s concerns about the video recordings, the claimant said that she felt that one member of staff, Karen, looked her up and down when she first started and she raised further issues around Karen in particular. She also said she felt Wendy did not listen to her and she was not happy to attend one-to-ones with Wendy. Lisa Fern listened to what the claimant had to say and discussed mediation as solution to improve/support positive relationships. The claimant declined this. Lisa Fern confirmed that she would discuss this with HR and senior management.

[37]On 11 September 2023, the claimant formally submitted a written grievance. It was a one-page written document in narrative form. It referred to the three video recordings of Karen Nelson and Kainat Yasseen being racist, displaying religious discrimination and bullying towards the claimant. She asserted that her name was mentioned by both women in the videos. She also asserts that Wendy Bacon is part of this as Karen mentioned the conversation with Wendy in the course of the recording. The core allegation (for the purposes of the harassment claim in these proceedings) was that Wendy also said, “why can’t you wear leggings or pants.” The claimant asserted that Karen had also said this exact same thing on the video recording. The claimant pointed out that the infection control policy clearly states that uniform should be adapted for modesty. The claimant says, “I then asked Wendy do you have a problem with Islamic dresses to which she replied to “no not at all.” Wendy then carries on harassing and showing religious discrimination again. The discussion is regarding my Islamic dress that I have worn under my tunic for over 2.5 years and was agreed by nurse Claire who was my in-charge nurse. There is no alternative to an Islamic dress.” The claimant continues to assert that Karen says, on the recording, “why can’t they hire British girls.” To which Kainat is said to reply, “I have worked for the NHS for 8 years, I’ve never known anyone to use the race card as much as Nazia Ayub.” The claimant continues, “Karen then says to Kainat “you’re all bloody British anyways aren’t ya” which would indicate that I Nazia Ayub am not because I wear Islamic dress.” Dignity at work process

[38]On 27 September 2023 there was a Dignity at Work Investigation Meeting with the claimant. It was conducted by Charlotte Bennett. Notes were taken of the meeting [282-287]. In the course of the meeting Charlotte Bennett explained that the notes of the meeting would be typed and sent to the claimant for her to agree, sign and return. Following the meeting a schedule of allegations document would be drafted which would also be sent to the claimant to confirm. This would be used as the terms of reference for the investigation. The claimant gave her account of the interaction with Wendy Bacon when she was challenged about the Islamic dress that she was wearing at work. She explained that she had previously been told that she could wear the Islamic dress by a previous line manager. She explained that she left the meeting with Wendy Bacon feeling upset. There was then a discussion of the three video recordings. The claimant maintained that she was being attacked about something that had already been dealt with. She asserted that Wendy said to her “why can’t you wear pants or leggings.” The claimant said that her response was, “do you not know anything about religion.”

[39]There was also some discussion about how the claimant had obtained the video recordings, as the respondent was concerned about the way they had been made and shared with the claimant. The claimant also asserted that they (i.e., Karen and Kainat) said, “why don’t they hire British.” The claimant maintained that Wendy had seen her wearing the Islamic dress on many occasions and that she (the claimant) was pulling her sleeves up when working. She maintained that it had not been a problem for 2.5 years and was now being raised as an issue for the first time. The claimant asserted that Wendy doesn’t understand religion and has no respect for religion. She asserted that Kainat lied about the claimant to Wendy and tried to get her into trouble. She was asked about her working relationship with her colleagues. She started by saying that she had never had a problem. However, she proceeded to note that Karen looked her up and down when swapping shifts and this was offensive to her. She also asserted that Karen had deliberately kept a nebulizer from her when she was going to school with the patient. She asserted that in Karen’s eyes the claimant was not good enough because she had Islamic dress on. The claimant also complained about things that Kainat had been doing. The claimant continued, “Karen never liked me I don’t know reason. I don’t think she’s a fan of Asian people. I try to be nice to her.” She also said that she did not want to work with Kainat because she had been taking part in discriminating against the claimant. She referred to the ‘race card’ comment that is on the recording. The claimant was asked what resolution she wanted and whether she had been able to access support and “SCARF.”

[40]At the conclusion of the meeting the claimant was told that she would receive the minutes from the meeting and that she should feel free to make tracked changes. Ms Bennett would go away and look at the allegations and create the terms of reference. She explained that once the claimant had received that and agreed the schedule of allegations, the investigation would start and they would meet with the other people mentioned. Ms Bennett would then complete a report for Lucy Lees who would then provide the claimant with an outcome.

[41]The draft schedule of allegations was sent to the claimant by Ms Bennett on 6 October 2023. She explained that the schedule of allegations would form part of the terms of reference. The claimant accepted that she had, in fact, agreed the schedule of allegations for use as part of the grievance procedure. Ms Bennett had confirmed that the claimant had never raised any concerns about the schedule of allegations at the time.

[42]On 14 October Lisa Fern sent a further email, this time to Yasmin Bukhari, requesting further advice on uniform. In her email she indicated that she had ordered three different sizes of scrubs for the claimant since the advice was last sought. The claimant had said all of these were not suitable. She continued, “I’ve never come across this situation before as usually an appropriate option has been found and agreed and therefore would gratefully appreciate any advice you can give me.” It appears that they met to discuss the issue further at some point on 16 October.

[43]On 2 November 2023 Ms Bennett conducted a Dignity at Work investigation meeting with Kainat Yaseen and with Karen Nelson. Notes were taken of both meetings. Karen Nelson was asked about conversations with Kainat around the claimant’s uniform. She said that they did talk about uniforms but there were no derogatory comments. There had been issues with the claimant not wearing the uniform. She referred to 12 months. Ms Bennett asked Karen Nelson how she knew about the issues with management. Karen Nelson indicated that Wendy Bacon had told her and had asked her if Naziya is not wearing the uniform to let her (i.e., Wendy) know. Karen stated that she hadn’t reported it to management and that Wendy knew that the claimant didn’t wear the uniform. A transcript of the recording was then shared with Karen Nelson during the course of the meeting. She was given a short period of time to read and familiarise herself with its contents. She was asked whether she could recall the topic of racism being discussed during the conversation, particularly around ‘hiring British workers.’ Her reply was no, absolutely not. She was asked whether she could remember the conversation where there was reference to ‘the race card.’ She could not. She could recall the conversation about uniform but not any of the other issues. She was also asked whether she had ever had any discussions with Wendy Bacon about the claimant’s uniform. She confirmed that she was in the office with Wendy Bacon and the claimant had phoned in. Wendy had indicated to Karen that it was probably something about uniform and had asked Karen to let her know if she saw the claimant not in uniform. Ms Nelson continued, “I think me and Kainat were saying we have other Muslim ladies and they do wear dresses with the leggings and we probably talked about that.” Ms Nelson denied having had any discussions about the claimant’s uniform with any other staff members. She also recounted a time when she and the claimant had a disagreement about an issue with a nebulizer. She also confirmed that she and the claimant did not work together regularly. Rather, there was just the occasional handover between day and night shifts.

[44]During her Tribunal evidence, Karen Nelson maintained that she had not made any derogatory comments about the claimant. Her conversation with Kainat Yaseen did refer to the claimant but this was part of a wider discussion. As part of the conversation, they had spoken about the uniform audit which was taking place to ensure that all staff were wearing uniform which was compliant with the respondent’s workwear policy and health and safety requirements. She was aware that there were many Muslim women working on shifts who were able to wear unform which was compliant with the policy and she was genuinely curious as to why the claimant was not able to wear the same. This was the basis for the discussion. She maintained that there was no animosity towards the claimant in the comments and that they were not said with the intention that the claimant should hear them. She was not aware that the conversation was being recorded. She felt that anything that she said in the conversation she could have said directly to the claimant. She was getting another Muslim employee’s perspective on the issue.

[45]When sked about the “bloody British” comment she made it clear that she was saying that everyone was British. She maintained that she did not mean anything in particular by “bloody.” She was saying that all of the workers were British.

[46]In the notes of the meeting with Kainat Yaseen, when the transcript of the recording was shared with her, her response was to say that she did not really know what she had done. She was asked whether she remembered having a conversation about the uniform. She stated that the claimant wears a big tunic underneath and she thought she wears long sleeves which were dangling as they were supposed to be bare below the elbow. She was asked if there was any conversation about the claimant’s uniform at any time. Kainat is recorded as saying, “I did say I don’t think its uniform what we wear. I said she doesn’t have it zipped up. Its just a cardigan and I mentioned it to Naziya and she said it became too tight. I normally wear tights under my dress or sometimes leggings with socks. Where Naziya wears a full gown underneath and tunic over but not closed or zipped up. Dress she wears is full sleeves. Karen and I are bare beyond the elbows and don’t wear anything underneath.” Kainat was asked whether she could remember the topic of racism being discussed within this conversation, particularly regarding ‘hiring British workers?’ She replied, “When I started it was me Naziya and one other. We were at another patient house just talking and Naziya kept saying Kainat you are being victimised and harassed by these people. You don’t know, there are so many racist here.” She went on to explain when she felt that the claimant had put a patient in danger and Kainat had reported it. She felt that every time she and the claimant had a conversation it turned into an argument. She indicated that the claimant had said that, “Wendy is racist” and that Kainat had said she did not feel that way. The claimant had said, “you will find it out later, I’ve been here 2 years and I know what I’m talking about.” Kainat went on to recount several difficult situations when she was working with the claimant.

[47]On 9 November 2023, the claimant emailed Lisa Fern about uniform. She confirmed that she had decided not to change her uniform to a summer dress and scrub pants because she was uncomfortable with this combination. She also strongly felt that the uniform issue had been instigated by some of her co-workers. She continued, “Therefore, my feelings, thoughts and religious beliefs will not allow me to change my uniform and given the fact that I’ve worn an Islamic dress under my tunic for nearly 3 years and this was agreed by my in-charge Nurse at that time. I will not change my identity to please others who show signs of racism and religious discrimination. Risk assessing my Islamic clothing would highly likely to be a low risk to health and safety. I will not be negotiating on what I wear to work, and I’m not having any more discussions about this.” The action point alongside this entry in the contact sheet indicates that a conversation had taken place with HR about the email and that, given the support offered and reasonable adjustments made, a formal letter would now be sent to the claimant informing her regarding compliance with workwear policy.

[48]That letter seems to have been sent by Lisa Fern to the claimant on 13 November 2023. In that letter Lisa Fern summarised the concerns that the claimant had shared with her during an informal meeting on 13 July. She confirmed that the claimant had alleged that the recent request to comply with appropriate uniform was discriminatory. She recorded that she had confirmed to the claimant that all staff had received email correspondence from Ms Bacon regarding compliance with the workwear policy as an action following a formal investigation earlier that year. Ms Bacon had advised that a uniform audit would be taking place over the following months. Ms Fern advised on 13 July that this action was requested by Ms Fern as part of a formal action plan and not as a direct complaint from anyone in the team. She summarised in the letter that she and the claimant had discussed (on 13 July and 7 September), the reasons why the claimant’s Islamic dress was not suitable and number of supportive options were provided. The letter listed the options available for the claimant, which included, scrubs (to allow a looser fit that doesn’t provide an outline on the body); trousers and tunic (with consideration for a longer tunic top covering past the claimant’s bottom and longer trousers to cover the claimant’s ankles when worn with socks); dress (consideration of the claimant wearing a slightly longer dress that still allowed for unrestricted movement). As the claimant had advised that she felt uncomfortable wearing tights, additional suggestions had been made that the claimant may wish to wear leggings underneath or opt for uniform trousers or scrub trousers with the dress. A number of different sizes of scrubs were ordered along with some dresses for the claimant to try. The claimant had since stated that they were not suitable.

[49]The letter set out the relevant sections of the workwear policy. In particular, it quoted the following, “The trust recognises the right for staff to adhere to religious and cultural observances. We will take a sensitive approach when this affects dress and uniform requirements. However, priority will be given to health and safety, security and infection control considerations.” The letter also informed the claimant that advice had been sought from HR, Health and Safety, Infection Control, and the Equality, Diversity and Inclusion Team. No additional considerations were identified and the reasonable adjustments offered were agreed as appropriate. The letter stated, “As you have been provided with suitable adjustments and alternatives regarding your uniform, please be advised that from 21st November 2023 you will be expected to follow the NCA Workwear Policy by wearing the correct uniform from the reasonable options provided. Failure to follow reasonable management instruction and trust policy could constitute misconduct and therefore lead to disciplinary proceedings. If you require further sets of uniforms, please let me know and I will ask Jeanette Lloyd Team Administrator to order them for you.”

[50]The claimant started a period of sickness absence on 15 November 2023. In the end, she did not return to work before the termination of her employment with the respondent. She remained absent from work thereafter.

[51]On 16 November there was a Dignity at Work investigation meeting with Wendy Bacon. Again, notes were taken of the discussions in that meeting. Wendy Bacon was asked questions about the meeting on 15 May and any discussions that were had about the claimant’s uniform. She was told that the claimant reported that she had worn her Islamic dress under her tunic for 2.5 years and was unsure why the concern was being raised that day. Ms Bacon confirmed that she did raise the issue with the claimant that day. She held a supervision with the claimant and pointed out the way that she presented herself. At this point, Ms Bacon maintained she could only see what the claimant was wearing on top, namely a long black top, gold bangle, tunic worn open and not closed, and a black knitted headscarf worn outside of the tunic. She confirmed this was not the correct uniform and she asked the claimant why she was not wearing the correct uniform. The claimant said that she wore this all the time. When asked why her tunic was open, she said that the uniform was too small. Ms Bacon pointed out that she had been provided with four bigger tunics and asked the claimant why she wasn’t wearing one of them. The claimant maintained it was in the ironing. Ms Bacon explained to the claimant that when coming on shift the expectation is that uniform is ready for the shift and worn correctly. She confirmed again that the claimant should be bare below the elbows. The claimant said that she rolled her sleeves up. When the issue of jewellery was raised, the claimant said, “I take it off don’t I.” The claimant also alleged that she had been wearing that form of uniform for years. Ms Bacon confirmed that she had not seen the claimant in that version of the uniform before but this was probably because she did not work alongside the claimant. Carers often did not come into the office before and after their shifts. As Claire Palmer had left, Ms Bacon could not check with her what had been agreed with the claimant previously and whether Ms Palmer had authorised the claimant’s version of the uniform. Ms Bacon confirmed that she had been tasked by senior management to realign staff uniform following a recent incident involving another staff member. She confirmed that they were aligning what everyone wears on shift. The claimant refused to listen to this and stood up and Ms Bacon said that it was at this stage that she realised the claimant was wearing a long dress. Ms Bacon pointed out that she was not even wearing trousers. The claimant’s response to this was, “so you have a problem with Muslim dress?” Ms Bacon asserted that her response was, “No, I do not have a problem with Muslim dress, however I do have a problem with you not wearing correct uniform when you are on shift.” The claimant said, “I’m not listening to this.’ The claimant walked out. That ended the interaction.

[52]Ms Bacon said that she was upset by the claimant’s accusation, so she went to see Lisa Fern and explained what had happened. Lisa Fern indicated that she would go to speak to the claimant. In the meantime, Ms Bacon wrote up the supervision notes. Ms Bacon indicated that she had said to Lisa Fern, “I don’t know what to do about this.” Ms Bacon noted that they had religious beliefs to consider in line with H & S and IPC. Ms Bacon confirmed that she contacted the Equality Inclusion and Diversity team and spoke to Lisa Chadwick. They sent back suggestions via email. When Ms Bacon shared the email from the EE I & D team with the claimant, she misinterpreted what it said. The claimant said, “I can wear my dress then?” She suggested that she could wear her dress as long as she tucked in her headscarf. At a further meeting Miss Bacon confirmed that the claimant had misunderstood the email. The issue of uniform was then handed on to Lisa Fern.

[53]Later in the conversation Ms Bacon indicated that she had raised noncompliance with uniform requirements with a number of other colleagues, who she named in the conversation. For example, she had challenged people wearing leggings but no trousers, people wearing jewellery, people wearing shellac nails. Ms Bacon confirmed that they looked at scrubs and whether the sewing room could make something for the claimant. They were trying to find something which protected modesty but met the requirements of the uniform policy.

[54]Ms Bacon was asked whether she recalled discussing the claimant’s uniform with Karen Nelson and asking why the claimant was not wearing pants or leggings. Ms Bacon did not recall that conversation. Ms Bacon gave details of concerns raised with Naziya as a result of Kainat’s reports to Abbey Henson. When the issue was raised with the claimant she was defensive and asserted that Kainat didn’t like her. The claimant apparently took the criticism personally and did not want to work alongside Kainat anymore. Ms Bacon was asked to describe her working relationship with the claimant. She thought she had a nice relationship with the claimant, that she could have a laugh with her but that sometimes she could be quite challenging and could come across disrespectfully. However, Ms Bacon had never taken it personally. She said that sometimes she has had to challenge things with the claimant which the claimant did not always take well but they’ve always had a fairly good relationship.

[55]The claimant initiated Early Conciliation with ACAS on 5 December 2023, and the Early Conciliation certificate was issued on 6 December 2023.

[56]The respondent’s Dignity at Work Investigation report was compiled by Charlotte Bennett and was completed on 6 December 2023. It addressed the agreed schedule of allegations and summarised the evidence that had been collated during the investigation meetings with the relevant individuals. The findings (relevant to this Tribunal case) were summarised including:(a) There was a conversation between Karen and Kainat at a service user’s house where they discussed the claimant’s uniform.

(b) Karen recalled Wendy telling her to report it if she saw the claimant not in uniform.

(c) There is no evidence that Karen specifically asked Wendy why the claimant was not wearing leggings or pants. There may have been a discussion about other Muslim ladies wearing dresses with leggings.

(d) There is no evidence in the transcript to suggest that the specific comment “why don’t they hire British workers” was made. The summary sets out the comments that were made about British/English/White girls.

(e) There was a conversation between the claimant and Wendy Bacon about uniform during a supervision session. Wendy highlighted uniform expectations and pointed out that what the claimant was wearing was not in line with uniform expectations. The claimant left the meeting before a conclusion could be reached. The issue was escalated to Lisa Fern to manage.

[57]The recommendations from the investigation included that there should be a formal mediation between the claimant and Wendy, Kainat and also Karen. She recommended that some further work on respectful communication, boundaries and team working would be a positive outcome for the LTVT team. She recommended clear guidance/expectation to families regarding video recording of staff members. Clear guidance/expectations to staff members re the use of mobile phones in patients’ homes. She recommended a more structured uniform audit schedule to be developed within the LTVT as it seems currently to be on an ad hoc basis. She recommended clear guidance on expectations of where sensitive conversations should be held.

[58]The claimant presented her ET1 form to the Tribunal on 6 December 2023.

[59]Although the Dignity at Work/grievance investigation had been done by Charlotte Bennett, it was for Lucy Lees to decide the outcome to the grievance. She sent an outcome letter to the claimant dated 14 December 2023. In the outcome letter she stated her conclusion that there was no case to answer. Despite this it stated that the Investigating Officer (Ms Bennett) had recommended the following management actions:(1) Lisa Fern to meet with the claimant to outline the correct mechanism for families, patients and staff to raise issues regarding staff to ensure that staff do not ask families to gather information in a way that is incongruent to the correct process.

(2) The claimant’s uniform is discussed to ensure that the claimant complies with infection control guidelines and workwear policy with the claimant’s modesty and religious values taken into consideration.

(3) Leadership values are outlined to Ms Bacon to ensure that she practices within the scope of confidentiality when dealing with staff specific issues.

(4) Ms Bacon to feedback the outcome of the investigation relating to the oxygen issue. The claimant was informed of her right to appeal the outcome. She was also reminded of the sources of support, details which had previously been shared with her. I note that Ms Bennett confirmed in her oral evidence to the tribunal that the first recommendation in the outcome letter was not one of her recommendations (see (1) above.) It was not included in her report. Rather, it was something the grievance officer (Ms Lees) had added to the outcome letter.

[60]The claimant apparently submitted her grievance appeal on or about 22 December 2023.

[61]The respondent’s Wellbeing and Attendance Management Policy applied to the claimant. In accordance with that policy, any absence of 28 days or more was classed as a long-term sickness absence. At that stage Long Term Sickness Absence Review meetings should be carried out on a monthly basis.

[62]It was put to Ms Langley that there was an 11-week delay in arranging the first long-term sickness meeting. However, she pointed out that the meeting took place 11 weeks from the first day of absence. It was not 11 weeks late. The policy applied once the absence became long-term (i.e., 28 days or more.) She confirmed that Keeping in Touch conversations are a separate matter and are relevant in cases where there are short term absences. The applicable process was the Attendance Management Policy addressing long term sickness absence. In any event, she maintained that any alleged delay in holding a meeting did not delay the start of the redeployment process, for the reasons which are set out below. Redeployment procedures were activated once the claimant indicated that she wanted to consider redeployment. It was not delayed. Having reviewed all the relevant evidence, I am satisfied that Ms Langley is correct about this. There was no delay in arranging meetings or breach in the applicable policy in this regard. Furthermore, there was no ‘knock-on effect’ on redeployment. The start of redeployment process was not delayed. The only potential delay was in arranging an occupational health report and this was outside the parties’ control.

[63]A Long Term Absence Review meeting took place on 1 February 2024. It was standard practice for this sort of meeting to be conducted face to face and in person rather than remotely. It was conducted by Nadine Langley. The claimant was accompanied by her friend Margaret Stainthorpe. (This was permitted by the respondent as an exception to the policy as Ms Stainthorpe was not a colleague or trade union representative.) The reasons for absence were discussed as were any options to support the claimant back into work. The claimant declined a referral to occupational health as it would overload her. SCARF information was discussed. It was confirmed that the claimant would move to half pay from 14 March and would be on nil pay from 14 July 2024.

[64]An outcome letter was sent out following the meeting (dated 12 February 2024.) A further informal health review was arranged for 1 March 2024. The letter confirmed that further absence could potentially result in progressing to the 1st Formal Attendance Management Meeting, in line with the policy. The claimant was asked to consider the occupational health referral and accessing SCARF resources available within the Trust.

[65]During cross examination, the claimant accepted that her health was not sufficiently recovered for her to be able to return to work at the time she attended this meeting. She also accepted that, whilst the follow-up letter from the meeting warned her that it was possible that her case could be taken to a first formal attendance management meeting, this never actually happened in her case. She was not, in fact, taken through any stages of the formal attendance management procedure (which could result in formal warnings that her attendance needed to improve.)

[66]A further Long Term Absence Review meeting took place on 1 March 2024. It was again conducted by Nadine Langley and the claimant was accompanied by Ms Stainthorpe. A follow up letter was sent out, dated 12 March 2024. The claimant had been provided with medication since the previous meeting. The claimant had been referred for counselling. The claimant was asked if there was anything the respondent could do to facilitate her return to work. She was still considering the issue of an occupational health referral. She raised issues with receipt of benefits due to a potential misreporting of her wage. This was to be looked into. The claimant said there was nothing further the respondent could do to support her at that stage. The next review meeting had been scheduled for 12 April 2024.

[67]The Long Term Absence Review meeting took place on 12 April, as scheduled. An outcome letter was sent out, dated 16 April 2024. The claimant indicated that she did not feel that she would want to return to work within the LTVT team following her previous concerns. There was a discussion about the respondent’s redeployment policy and procedures. The claimant agreed to explore this and agreed to a referral to occupational health. The claimant could not identify any further measures that the respondent could take to support her health at that stage.

[68]The notes of the April meeting and the letter following the April long term absence meeting are the first written evidence that the claimant had decided that she wanted to pursue redeployment and requested it from the respondent. During the Tribunal hearing, the claimant suggested that she had asked for redeployment before this date, at one of the earlier meetings. There is no such request for redeployment in the written records of the earlier meetings. In addition, prior to April the claimant’s health was apparently too poor for her to consider a return to work in any capacity. Given the circumstances, I find as a fact that the claimant only started to request redeployment at the April meeting and not before this point in the chronology. To the extent that she maintains otherwise, I find that she is mistaken in her belief or recollection.

[69]The respondent has a redeployment policy [788-804]. Redeployment can be appropriate for various categories of employees including those where redeployment has been recommended/instructed or mutually agreed as an outcome following a formal process such as grievance, disciplinary or for remedying poor performance or personal relationships. Staff can be placed on a redeployment register of those who are searching for redeployment. As part of that process, the staff member will receive notifications of job vacancies that might be suitable for them. In the claimant’s case, whilst exploring redeployment, the Long Term Sickness Absence Process could continue and the option would also remain for the claimant to consider a return to her substantive role. The policy requires occupational health input if someone wants to be considered for redeployment. Given the claimant’s sickness absence, it was relevant to have occupational health guidance as this might impact upon appropriate next steps. At this point in time there were significant waiting lists for occupational health appointments. The claimant was informed of this by Ms Langley.

[70]The next Long Term Absence Review meeting took place on 23 May 2024. Notes of the meeting were taken and an outcome letter was set out, dated 24 May 2024. By this stage, the claimant was accessing talking therapies and was finding them helpful. She was going out more than previously. An improvement in her health was recorded. She confirmed that she wished to continue with the process of redeployment. Occupational health input was required in order for the redeployment process to be activated properly. The claimant had received an appointment with occupational health on 17 June 2024. There was a discussion about temporary alternative tasks within community nursing to facilitate a return to work. The claimant discussed if working from home was possible as this would not raise uniform issues. She was open to the possibility of work within SSNT, if available. A further informal health review was arranged for 28 June 2024. In the meantime, working from home (but not for CLTVT and CCNT) would be explored. The claimant would be provided with the respondent’s redeployment policy and STAR hub information regarding financial support.

[71]The grievance appeal hearing took place on 30 May 2024. It was apparently conducted by Amaara Khan, Directorate Manager. Ms Khan was not one of the witnesses who gave evidence to the Tribunal.

[72]On 20 June 2024 Wendy Bacon sent an email to a large number of colleagues concerning a Band 4 opportunity. She indicated that there was an opportunity for two Band 4 positions within the team. This was only being sent out internally, to the Band 3 team. She suggested that those interested should fill out the application form. The claimant forwarded the message to Nadine Langley and stated that she was interested in the role as a redeployment opportunity. She asked whether it was within LTVT or CCNT. Ms Langley confirmed the next day that the opportunities were within the CLTVT service.

[73]An occupational health report was produced dated 24 June 2024. This was the result of a telephone consultation on 17 June. The claimant reported stress symptoms and anxiety due to work matters. The claimant had confirmed that she was on medication and getting counselling through Healthy Minds. As her symptoms were substantial, the occupational health clinician recommended that she also have further counselling through the staff counselling service. The claimant had been referred for this. In relation to redeployment the report said: “She indicated a preference for a relocation to a suitable alternative work area because of work matters. The problem therefore appears to be a managerial one and not medical. As she describes problems because of going out because of anxiety she would be helped by working remotely. I have advised that this would likely be dependent on her skill set and the availability of posts. Please discuss this with her and facilitate training if required as a supportive measure.” She confirmed that the claimant was likely, on balance of probabilities, to remain off work until work matters are resolved. She could not provide a return to work date. She continued, “an induction and training as appropriate would be seen as an adjustment to support a return to work. I have suggested she discuss the implications of applying for redeployment with you and HR. I have also suggested that she look at vacancies that are available within the Trust. Please can you support her with this. A formal work stress risk assessment if the above is not organizationally feasible with mediation between the affected parties are alternative options to consider.” In response to management’s questions, she confirmed that the problem here was managerial not medical and the employee had indicated a preference for redeployment.

[74]The grievance appeal outcome letter was sent out, dated 26 June 2024. After describing the various points of appeal and the discussions held, the original grievance decision was upheld. The appeal upheld the original decision that there was no case to answer and that informal action would be taken. The letter also set out a series of ‘lessons learned.’ These included:• Ensuring that comprehensive, appropriate feedback is given in a timely manner, providing assurance that appropriate management action has been taken.

• Ensuring that the process is clear to the colleagues involved. For instance, does the colleague who is raising concerns understand the investigation process and its parameters? In order to continue to support the claimant in seeking solution to her concerns, Ms Khan offered the following recommendations:

• To gain assurance that the recommendations given within the investigation report are in place/in process.

• Continued management of your uniform to be explored and managed locally, with provision for modesty in line with the NCA’s workwear policy.

• Ensure awareness of the NCA’s Workwear policy across the wider team. The letter concluded by drawing the claimant’s attention to the sources of wellbeing support which were available to her, should she wish to use them.

[75]There was a further long term absence review meeting on 28 June. Notes of the meeting were taken and the discussions/outcomes from the meeting were summarised in a letter dated 9 July 2024. The notes of the meeting indicate that the redeployment process was explained to the claimant. The letter records that the claimant declined the option of mediation which had previously been put forward by occupational health as an alternative solution. The claimant confirmed that she wanted to continue with the option of redeployment. In the paragraph addressing redeployment the letter stated: “… in cases where a colleague employee of the Trust cannot continue in their current post and adjustments have been made redeployment should be considered, this should commence parallel with the final stage sickness meeting, or sooner if applicable. Gemma shared that, due to having no foreseeable return to work date, and you have confirmed that you will not be returning to the LTVT that the case may now need to progress to a final hearing. As part of this hearing, an independent panel will review all information and consideration of next steps will be considered including re-deployment. It was highlighted that as per policy, one outcome of the hearing could be termination, however, as you confirmed that you are open to re-deployment this would be considered by the panel and recommended by myself. ….You confirmed that you would be happy to join the redeployment register and we have arranged to meet to complete the aspirational form via MS Teams.” This mirrored the corresponding section in the notes of the meeting.

[76]The action points flowing from the meeting were that any working from home tasks outside CLTVT or CCNT would be identified as a temporary alternative for the claimant. The claimant would be provided with the Trust redeployment process (including timescales), and the aspirational interview form would be completed during a meeting on 5 July 2024. The claimant would be provided with the Managing Stress at Work policy including the stress risk assessment.

[77]The start of the claimant’s redeployment period was 12 July 2024. It was due to end 12 weeks later, on 4 October 2024.

[78]The end of the claimant’s sick pay entitlement was on 13 July.

[79]There was a further long term sickness review meeting on 26 July 2024. Once again, notes of the meeting were taken. The follow-up letter was dated 13 August. The letter confirmed that there were no temporary alternative tasks for the claimant in CCNT and SSNT whilst working from home. There had been a further discussion of the redeployment process during the meeting. The claimant had been added to the redeployment register. There was a requirement for weekly meetings under the redeployment process. It was confirmed that this process should coincide with the final stage of the sickness meetings under the attendance management policy. It confirmed that an independent panel would review all the information as part of this hearing, considering next steps, including redeployment. One possible outcome of the hearing could be termination of employment as per the management and attendance policy.

[80]During this meeting, the claimant disclosed that she had joined a teaching agency and planned to hand in her notice of resignation. They discussed the claimant considering all her options before making a final decision on resignation. The stress risk assessment was offered again. Mediation was discussed again but the claimant did not agree to it. She confirmed that she could not return to her previous team and was happy now that she had joined the agency. The claimant is recorded as explaining that she felt she needed to leave the Trust as she felt that no additional support could be provided. There were further discussions around the issue of work uniform.

[81]As indicated, the claimant tendered her resignation on 26 July via a brief email to Lisa Fern. It gave no explanation for the resignation. It just confirmed that 4 weeks’ notice were to start from 29 July. The claimant resigned when she had been on the redeployment register for only 2 weeks. She had exhausted her sick pay by that stage and was on nil pay.

[82]The claimant’s resignation was accepted via letter dated 29 July 2024, effective from 26 July 2024. With the four week notice period, the claimant’s last day in employment was 25 August 2024. The claimant agreed that the meeting on 26 July could be classed as the respondent’s “stay with us” meeting. In her email of 29 July, the claimant indicated that she was just going to be doing agency work but she would be able to wear what she was comfortable wearing. She said, “This is the only way I can move on because NHS has not supported or negotiated my uniform issues and my grievances. It has been long enough.” Despite this, when asked in cross examination why she had left, the claimant said the uniform issue was not the reason she had left, although it was part of the problem. She asserted that she left because she had not been redeployed, the meetings had been delayed by 11 weeks, an independent panel would decide whether to recommend redeployment, she had not been trained and given an induction, and she had no money and was experiencing financial hardship. She asserted that if the respondent had given her another job, she would not have left.

[83]I am satisfied (and find as a fact) that the claimant had been told by the respondent that a decision about termination of her employment for long term absence would only be taken at the end of the 12-week redeployment period. The claimant would only be dismissed if she could not be redeployed during the redeployment period. The claimant indicated that email correspondence suggested otherwise (page 446) but a fair reading of that email indicates that a panel meeting to decide whether to dismiss the claimant would only be scheduled at the end of the 12-week redeployment period. Consequently, termination would only become a real option if the redeployment period failed to achieve the objective of redeploying the claimant to suitable work. To the extent that the claimant maintained otherwise, she misunderstood what the respondent’s managers were communicating to her and has misunderstood the respondent’s policies. (In any event, the claimant accepted that she had not seen the email that she now relies on before her resignation. It only came to light as part of the Tribunal process.)

[84]The end of the redeployment period would have been 4 October 2024, had the claimant not resigned prior to this.

[85]During her oral evidence, the claimant suggested that the respondent had ignored the occupational health recommendations. However, the above chronology indicates that the option of remote working had been explored, the redeployment process was underway (albeit the claimant had only been on the register for 2 weeks) and the stress risk assessment had been offered. The claimant was asked to explain which bit of the occupational health recommendations was not followed or implemented. She suggested that she should have been given induction training for a new job. However, that cannot be correct. Induction and training for a new job only becomes relevant once a potential new job has been identified for the claimant to move to. The claimant has not suggested that a suitable new job had been identified for her before she tendered her resignation. Nor has she pointed to any vacancies that were available at the relevant time which she should have been offered or asked to consider, either on a temporary basis or on a permanent redeployment basis. This part of the claimant’s evidence was not reliable. She argued that there had been an 11-week delay which had stopped redeployment from happening. However, the chronology does not support that suggestion. Once redeployment was requested, occupational health input was sought (as required by the policy). After the occupational health report was produced, the claimant was put on the redeployment register and the other occupational health recommendations were addressed. I am not satisfied that the respondent delayed the redeployment process by 11 weeks.

[86]The claimant then sought to suggest that the problem was the absence of ‘keeping in touch’ conversations. Cross examination explored what she meant by this given that there had been six long term absence meetings. The claimant asserted that these meetings should not have been conducted in person. Separate chronology of facts regarding the pay grievance

[87]On 13 September 2023, a collective grievance was submitted regarding equal pay for equal work. It was submitted by a number of Band 3 Healthcare Assistants. The comparison was between pay and conditions for Band 3s compared to Band 4s. In short, the Band 3s asserted that they were underpaid and were carrying out equal work with the Band 4s. They maintained that the two groups of healthcare assistants were effectively carrying out the same job role. The Band 3s asserted that their role should be a Band 4 position. They felt that their role had not been properly evaluated as part of the Agenda for Change process. In the course of the grievance the stated comparator for equal pay purposes was, “a male colleague who was working as band 4 on the team.” It is asserted that this person left his position within the team and was replaced by a Band 3 female who was given the same responsibilities and needed the same skills and expertise as her predecessor. The Healthcare Assistants also complained that when a Band 4 leaves employment staff are not given the opportunity to apply for the position. They asserted that over previous years the job had been downgraded from a Band 4 to a Band 3 position. The grievance stated that this appeared to be a way of the Trust saving money and not paying the staff the correct grade for the role and responsibilities. The HCAs requested a meeting to resolve the differences.

[88]The complaint of discrimination was based on the protected characteristic of sex rather than race when it was submitted as a collective grievance.

[89]It appears that, at one point, the majority of HCAs in the CLTVT were employed on Band 4 terms and conditions. At some point in the past there was a downgrading of Healthcare Assistant roles so that several of the Healthcare Assistants were employed at Band 3. This apparently happened when the team was organised and managed by a different Trust (Pennine Care NHS Foundation Trust.) This meant that there were two bandings of HCAs.

[90]On receipt of the pay grievance, Lisa Fern carried out an initial informal review. It appears that a meeting took place on 27 November 2023 and an outcome letter was issued on 13 December 2023. (The claimant confirmed in her oral evidence that she did not attend any meetings that took place in relation to the collective grievance whilst she was off work on sick leave. She also confirmed that the collective grievance was an equal pay grievance and that it did not refer to pay discrimination on racial grounds. Had the claimant been more involved personally in the grievance and the meetings, she felt that she would have argued about race discrimination as well as sex based pay discrimination.)

[91]A number of Band 3s attended the meeting with Lisa Fern, Lisa Tarrant and Tracy Hales, with HR support from Fowzia Hussein. Those who wished to listen to the meeting in full could do so via the MS Teams link. The letter set out 11 action points to follow up from the meeting. These included a review of job descriptions and a meeting with Band 4s to discuss their roles. The Band 3s were told that it would be a lengthy process to review the roles across the service but that the respondent would keep them updated as to progress.

[92]The Band 3 job descriptions required approval and review by an Agenda for Change panel to ensure that they were consistent with national guidelines. As part of this process, Lisa Fern reviewed the Band 3 job descriptions for accuracy and compared them with HCA roles across different locations in Greater Manchester.

[93]At around this time there was a general service review ongoing, which included a review of standard job descriptions. As part of this, the Band 3 job description had been standardised across the whole Trust (not just CLTVT). Lisa Fern drafted an amended Band 3 job description using this ‘standard’ up-to-date Band 3 template. An amended Band 4 job description was also drafted and was viewed by Agnes Leopold-James before it was submitted to HR. She noted that differences between the Band 3 and Band 4 job descriptions should be clearly set out. The Band 4 job descriptions were submitted for job evaluation on 22 April 2024.

[94]An Agenda for Change panel convened on 15 May 2024 to review the job descriptions. The job description was confirmed to be matched to a Band 3 role on 27 June 2024.

[95]On 4 July 2024 Lisa Fern sent an email to the signatories to the collective equal pay grievance (including the claimant). This was a follow-up to the November meeting. She had attended the Agenda for Change panel on 15 May. She confirmed that the role and job description had been agreed and matched at Band 3. She advised that their role and responsibilities would not change but that from that point onwards they would be using the attached approved job description. She confirmed that the Band 4 job description/job role review was going through the same process. She intended to provide an update in regard to that in the near future. She indicated that once both job descriptions had been approved, she intended to meet as an HCA team to discuss the disparity between the two roles to enable them to move forward with clarity on the different roles’ expectations and responsibilities.

[96]Lisa Fern attended the job evaluation panel for the Band 4 job descriptions on 16 July 2024. A final decision on the outcome of the Band 4 job role and job evaluation was not provided at that time.

[97]The informal resolution outcome was set out in a letter dated 18 November 2024, following a meeting which took place on 22 October 2024. (The claimant confirmed that she had not seen this letter at the time that it was produced and sent out to the employees.) The letter confirmed that the respondent was subject to the timelines for Agenda for Change processes. It was also recorded that progress had also been delayed due to the respondent’s corporate restructure and the Band 2/Band 3 piece of work that was happening at the time, which meant that panels were not available to meet as soon as had been anticipated. The letter confirmed that, as the current Band 3 job description had not been job matched via the respondent’s Agenda for Change team, the job description had to be updated onto the new NCA format and sent to Agenda for Change for review and job matching. The letter confirmed that the Band 4 meeting took place on 22 January 2024 to discuss their roles and responsibilities. It also confirmed that the Band 3 job description was sent to the AFC panel on 27 February 2024. Following review, the job description and job role was approved as Band 3 and was consistency-checked to confirm the same. The letter confirmed that, whilst the general clinical tasks will be the same across Bands 3 and 4, there are additional responsibilities for the Band 4s. There will be differences in the role. Fowzia Hussein discussed that the Band 4s had not been doing what they should have been doing but the respondent could not do anything about what had happened historically. Band 4s would need to accept the additional responsibilities and if not then there would be discussions regarding performance management.

[98]In cross examination, the claimant maintained that the respondent had said that they would add additional responsibilities for the Band 4s but this had not happened during the time that she was in the department. The additional tasks had not been added whilst she was there. The respondent maintained that the tasks were already part of the Band 4 role, it was just a matter of enforcement (i.e., making sure that the employees were actually doing all of the tasks that they were supposed to do in accordance with the role description.) The claimant maintained that, to the contrary, a change was proposed. New tasks and responsibilities would be added to the Band 4 role to justify the differential rather than improved enforcement to ensure that the pre-existing requirements of the Band 4 role were performed in practice.

[99]Following the conclusion of the informal resolution stage, the employees confirmed that they wished to move to a first formal stage grievance. They submitted a request to escalate the grievance to a formal stage in November 2024.

[100]On 3 December Ms Leopold-James sent a letter to the staff members who had submitted the collective grievance, acknowledging the formal grounds. She confirmed that a meeting would take place in January 2025 and that the grievance would progress through the Grievance and Dispute Resolution Policy. The meeting was scheduled for 8 January 2025.

[101]Lisa Fern submitted a detailed Management Statement of Case for the formal stage of the grievance. The Management Statement of Case produced by Lisa Fern set out a summary response to the collective formal grievance which was received on 27 November 2024 and which was submitted by named Band 3 HCAs within the CLTVT.

[102]The formal grievance was heard on 18 February 2025. Ms Lepold-James attended as chair. Ms Fern presented the Management Statement of Case in person at the hearing. One of the Band 3s attended on behalf of her colleagues, supported by an RCN representative.

[103]Ms Lepold-James states that, at the hearing, she considered that the initial premise of the grievance was that Band 3 staff felt that they carried out the role in the same way as Band 4 colleagues, with no difference in activities or the level of responsibility. She understood that, on this basis, the Band 3 staff were asking to be paid equally.

[104]As the formal hearing progressed it became apparent that the Band 3s were unhappy with the informal process to review their pay banding. They felt that the correct process had not been followed, in that staff were not given the opportunity to contribute to the job descriptions which were submitted for assessment, or to review the outcome.

[105]The outcome to the collective grievance was set out in the letter from Agnes Leopold-James dated 10 March 2025. In respect of point 1 (that the Band 3s feel that there is a disparity in pay as Band 4s carry out the same duties and that, therefore, the Band 3 role should be reviewed and paid at the same Band 4 level), the letter confirmed that the banding of any job role is done via the Job Banding Panel in line with the NCA Job Banding Policy and Procedure. Ms Leopold-James was, therefore, unable to make a judgment or uphold this part of the grievance as it needed to go through the appropriate process.

[106]In respect of point 2, that the process had not been followed correctly, the employees’ concerns had been that they had not seen the submission or been involved in drafting it prior to it being sent to the panel. The respondent’s managers had explained at the hearing that, in fact, the job description which had been used had actually been the original job description (just on a different template). They submitted that the aggrieved employees had actually discussed this original job description and had previously agreed that the job description being used was a fair reflection of the role. The substance of that document was just transferred to a different template. During the hearing the employees had agreed that this discussion about the job description had taken place. However, they had then discussed and made submissions about not being able to include additional information in the template as it was a generic Band 3 HCA job description. Lisa Fern had confirmed that additional information had been included in the summary of the document submitted, in line with the process. This suggested that there was additional information that should have been agreed prior to submission. The employees also felt that the generic job description was not an accurate reflection of their role and responsibilities as their job role is unique and the invasive clinical skills had not been taken into account and so, in the employees’ opinion, it warranted a Band 4.

[107]Ms Lepold-James stated in the outcome letter that she had not been able to confirm that the correct process had been followed in relation to the job description. Consequently, she upheld this part of the grievance with a recommendation that the employees and their management team should meet to agree the job description which could then be submitted for review by the relevant panel. In essence, she sought to ensure that the Band 3 employees had sufficient input into agreeing the content of the job description before it was submitted for consideration and assessment by the relevant panel. The letter confirmed the employees’ right to appeal against the outcome of the collective grievance.

[108]In short, Ms Leopold-James found that the proper process had been followed, in that an AFC panel had been used in line with the respondent’s Job Banding Policy and procedure. However, she felt that there was a lack of clarity as to whether staff had contributed sufficiently to the job descriptions prior to the panel assessment. The job descriptions should be reviewed again with further input from the Band 3 employees before resubmission to the panel.

[109]Lisa Fern was involved in implementing Ms Leopold-James’ decision and liaised with staff to contribute to their amended job descriptions. The job description and job evaluation questionnaires were resubmitted to the AFC panel for review on 16 September 2025.

[110]The AFC panel was originally due to meet on 15 December to provide their decision in respect of the banding review but this process was delayed and an outcome was expected later.

[111]The process was still ongoing at the time of the final hearing in this Tribunal. It was confirmed, as of 24 February 2026, that the post had been banded or graded at Band 3.

[112]Subsequent correspondence indicated that there had been a procedural flaw which meant that relevant staff in the post should have been invited to attend the panel meeting. They were not invited and so it appears that the panel meeting will have to be redone with the relevant employees invited to attend this time around. They will have the opportunity to comment on their job at the panel meeting and the process will be re-run/redone.

[113]The parties to this Tribunal claim seem to agree that the Band 4s listed as comparators by the claimant are all white British. However, it appears that the Band 3s have a variety of racial and ethnic descriptors, including white British. They are not racially homogenous.

[114]The claimant was cross examined in tribunal on the timing of the submission of her claim regarding race discrimination and pay differentials. The collective grievance was submitted on 13 September 2023 and it was suggested that she could have included this part of her case within her Tribunal claim at that time. The claimant’s position was that she was overwhelmed with other work problems. She had to contend the with the uniform issue and was absent on sick leave. When it was pointed out to her that she was able to manage the grievance and appeal about the uniform issue whilst still off work on sick leave, the claimant said that it was still very difficult for her to do that and that adding the pay grievance to the other matters would have overloaded her at that point in time.

[115]At the tribunal hearing Ms Leopold-James was also cross examined. She confirmed that, according to the applicable job descriptions, Band 3s and Band 4s had the same skills but different responsibilities. In short, a Band 4 HCA should be able to do everything that a Band 3 HCA does but with additional responsibilities. According to the job descriptions, the Band 4s have additional responsibilities, for example, for supervision and recruitment. She went through the documents explaining the additional responsibilities that were part of the Band 4 role but which would not be expected of Band 3s. She did not accept that these additional responsibilities had been added to the Band 4 role at a later date, just that they were additional to the responsibilities contained within the Band 3 job description. She confirmed that it was, in her opinion, more an issue of enforcement. That is to say, these were responsibilities which should always have been carried out by the Band 4s but which they had not always done in practice. Therefore, the pre-existing requirements of the post needed to be better enforced so that the Band 4s were, in practice, doing what they had always been intended to do in line with the paper job description. It was not about adding new responsibilities to the Band 4 role for the first time. She also confirmed that clinically, the Band 3 and Band 4 roles were the same, it was in other areas and levels of responsibility that they differed.

[116]Ms Leopold-James accepted that the pay grievance process as a whole had taken longer than it was supposed to.

[117]The Tribunal had no reason to disbelieve Ms Leopold- James’ evidence about the pay grievance. Where there was a dispute between the parties on the subject, the Tribunal preferred the respondent’s evidence on the issue. The respondent’s witnesses had a more thorough overview of the team as a whole and the jobs within it. They also understood the associated documentation. The claimant clearly understood her own job role and what was expected of her on a daily basis as a Band 3 HCA. However, she was not really in a position to comment on how the job descriptions were applied across the team in practice, particularly in relation to Band 4s. Nor was she really able to comment from experience on whether it was really a question of the respondent enforcing/ensuring performance of pre-existing responsibilities rather than adding additional responsibilities to the Band 4 job role at a later date. The respondent was better placed to provide this information. THE LAW Direct discrimination

THE LAW

[118]Section 13 Equality Act 2010 states (as far as relevant): (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. …. (5) If the protected characteristic is race, less favourable treatment includes segregating B from others.

[119]Section 23 of the Equality Act 2010 provides: (1) On a comparison of cases for the purposes of section 13, 14, 19 or 19A there must be no material difference between the circumstances relating to each case…

[120]In the claimant’s case, a comparator for the purposes of the race discrimination would be someone who is non- British Pakistani. The claimant’s comparators are ‘British White.’

[121]In some cases, it may be appropriate to postpone consideration of whether there has been less favourable treatment than of a comparator and decide the reason for the treatment first. Was it because of the protected characteristic? (Shamoon v Chief Constable of the Royal Ulster Constabulary

2003 ICR 337

, HL; Stockton on Tees Borough Council v Aylott)

[122]The claimant must show that they received the less favourable treatment ‘because of’ the protected characteristic. In Nagarajan v London Regional Transport

1999 ICR 877

, HL Lord Nicholls stated: “a variety of phrases, with different shades of meaning, have been used to explain how the legislation applies in such cases: discrimination requires that racial grounds were a cause, the activating cause, a substantial and effective cause, a substantial reason, an important factor. No one phrase is obviously preferable to all others, although in the application of this legislation legalistic phrases, as well as subtle distinctions, are better avoided so far as possible. If racial grounds… had a significant influence on the outcome, discrimination is made out’.”

[123]The judgment in R (on the application of E) v Governing Body of JFS and the Admissions Appeal Panel of JFS and ors

2010 IRLR 136

, SC summarised the principles that apply in cases of direct discrimination and gave guidance on how to determine the reason for the claimant’s treatment. Lord Phillips emphasised that in deciding what were the ‘grounds’ for discrimination, a court or tribunal is simply required to identify the factual criteria applied by the respondent as the basis for the alleged discrimination. Depending on the form of discrimination at issue, there are two different routes by which to arrive at an answer to this factual inquiry. In some cases, there is no dispute at all about the factual criterion applied by the respondent. It will be obvious why the complainant received the less favourable treatment. If the criterion, or reason, is based on a prohibited ground, direct discrimination will be made out. The decision in such a case is taken on a ground which is inherently discriminatory. The second type of case is one where the reason for the decision or act is not immediately apparent and the act complained of is not inherently discriminatory. The reason for the decision/act may be subjectively discriminatory. In such cases it is necessary to explore the mental processes, conscious or subconscious, of the alleged discriminator to discover what facts operated on his or her mind.

[124]The relevant comparator must not share the claimant’s protected characteristic. There must be no material difference between the circumstances relating to each case. The circumstances of the claimant and the comparator need not be identical in every way. Rather, what matters is that the circumstances which are relevant to the claimant’s treatment are the same or nearly the same for the claimant and the comparator (paragraph 3.23 EHRC Employment Code.) With the exception of the prohibited factor (the protected characteristic) all characteristics of the complainant which are relevant to the way his case was dealt with must be found also in the comparator. They do not have to be precisely the same but they must not be materially different. (Macdonald v Ministry of Defence, Pearce v Governing Body of Mayfield Secondary School

[2003] ICR 937

). Whether the situations are comparable is a matter of fact and degree (Hewage v Grampian Health Board

[2012] ICR 1054

.) Burden of Proof

[125]Section 136 of the Equality Act 2010 provides that, once there are facts from which an employment tribunal could decide that an unlawful act of discrimination has taken place, the burden of proof “shifts” to the respondent to prove any non-discriminatory explanation. The two-stage shifting burden of proof applies to all forms of discrimination under the Equality Act including direct discrimination, harassment, and indirect discrimination. Although similar principles apply, what needs to be proved depends, to a certain extent, on the nature of the legal test set out in the respective statutory sections.

[126]The wording of section 136 of the act should remain the touchstone. The relevant principles to be considered have been established in the key cases: Igen Ltd v Wong

2005 ICR 931

; Laing v Manchester City Council and another ICR 1519; Madarassy v Nomura International Plc

2007 ICR 867

; and Hewage v Grampian Health Board

2012 ICR 1054

[127]The correct approach requires a two-stage analysis. At the first stage the claimant must prove facts from which the tribunal could infer that discrimination has taken place. Only if such facts have been made out on the balance of probabilities is the second stage engaged, whereby the burden then “shifts” to the respondent to prove (on the balance of probabilities) that the treatment in question was “in no sense whatsoever” on the protected ground.

[128]The approved guidance in Barton v Investec Henderson Crosthwaite Securities Ltd

[2003] ICR 1205

(as adjusted) can be summarised as: a) It is for the claimant to prove, on the balance of probabilities, facts from which the employment tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination. If the claimant does not prove such facts, the claim will fail. b) In deciding whether there are such facts it is important to bear in mind that it is unusual to find direct evidence of discrimination. In many cases the discrimination will not be intentional. c) The outcome at this stage will usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. The tribunal does not have to reach a definitive determination that such facts would lead it to conclude that there was discrimination, it merely has to decide what inferences could be drawn. d) In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts. These inferences could include any that it is just and equitable to draw from an evasive or equivocal reply to a request for information. Inferences may also be drawn from any failure to comply with the relevant Code of Practice. e) When there are facts from which inferences could be drawn that the respondent has treated the claimant less favourably on a protected ground, the burden of proof moves to the respondent. It is then for the respondent to prove that it did not commit or, as the case may be, is not to be treated as having committed that act. To discharge that burden, it is necessary for the respondent to prove, on the balance of probabilities, that its treatment of the claimant was in no sense whatsoever on the protected ground. f) Not only must the respondent provide an explanation for the facts proved by the claimant, from which the inferences could be drawn, but that explanation must be adequate to prove, on the balance of probabilities, that the protected characteristic was no part of the reason for the treatment. Since the respondent would generally be in possession of the facts necessary to provide an explanation, the tribunal would normally expect cogent evidence to discharge that burden.

[129]The shifting burden of proof rule only applies to the discriminatory element of any claim. The burden remains on the claimant to prove that the alleged discriminatory treatment actually happened and that the respondent was responsible. The statutory burden of proof provisions only play a role where there is room for doubt as to the facts necessary to establish discrimination. In a case where the tribunal is in a position to make positive findings on the evidence one way or another as to whether the claimant was discriminated against on the alleged protected ground, they have no relevance (Hewage). If a tribunal cannot make a positive finding of fact as to whether or not discrimination has taken place it must apply the shifting burden of proof.

[130]Where it is alleged that the treatment is inherently discriminatory, an employment tribunal is simply required to identify the factual criterion applied by the respondent and there is no need to inquire into the employer’s mental processes. If the reason is clear or the tribunal is able to identify the criteria or reason on the evidence before it, there will be no question of inferring discrimination and thus no need to apply the burden of proof rule. Where the act complained of is not in itself discriminatory and the reason for the less favourable treatment is not immediately apparent, it is necessary to explore the employer’s mental processes (conscious or unconscious) to discover the ground or reason behind the act. In this type of case, the tribunal may well need to have recourse to the shifting burden of proof rules to establish an employer's motivation.

[131]The claimant bears the initial burden of proving a prima facie case of discrimination on the balance of probabilities. The requirement on the claimant is to prove on the balance of probabilities, facts from which, in the absence of any other explanation, the employment tribunal could infer an unlawful act of discrimination. The employer’s explanation (if any) for the alleged discriminatory treatment should be left out of the equation at the first stage. The tribunal must assume that there is no adequate explanation. The tribunal is required to make an assumption at the first stage which may in fact be contrary to reality. In certain circumstances evidence that is material to the question whether or not a prima facie case has been established may also be relevant to the question whether or not the employer has rebutted that prima facie case.

[132]The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, with more, sufficient material from which tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination (see Madarassy).

[133]If the claimant establishes a prima facie case of discrimination the second stage of the burden of proof is reached and the burden of proof shifts onto the respondent. The respondent must at this stage prove, on balance of probabilities that its treatment of the claimant was in no sense whatsoever based on the protected characteristic.

[134]In some instances, it may be appropriate to dispense with the first stage altogether and proceed straight to the second stage (Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

.) The employment tribunal should examine whether or not the issue of less favourable treatment is inextricably linked with the reason why such treatment has been meted out to the claimant. If such a link is apparent, the tribunal might first consider whether or not it can make a positive finding as to the reason, in which case it will not need to apply the shifting burden of proof rule. If the tribunal is unable to make a positive finding and finds itself in the situation of being unable to decide the issue of less favourable treatment without examining the reason, it must examine the reason (i.e. conduct the two stage inquiry) and it should be for the employer to prove that the reason is not discriminatory, failing which the claimant must succeed in the claim.

[135]In a case of harassment under section 26 of the Equality Act the shifting burden of proof in section 136 will still be of use in establishing that the unwanted conduct in question was “related to a relevant protected characteristic” for the purposes of section 26(1)(a). Where the conduct complained of is clearly related to a protected characteristic, then the employment tribunal will not need to revert to the shifting burden of proof rules at all. Where the conduct complained of is ostensibly indiscriminate the shifting burden of proof may be applicable to establish whether or not the reason for the treatment was the protected characteristic. Before the burden can shift to the respondent the claimant will need to establish on the balance of probabilities that she was subjected to the unwanted conduct which had the relevant purpose or effect of violating dignity, creating an intimidating etc environment for her. The claimant may also need to adduce some evidence to suggest that the conduct could be related to the protected characteristic, although she clearly does not need to prove that the conduct is related to the protected characteristic as that would be no different to the normal burden of proof.

[136]In a claim of indirect discrimination, following the case of Dziedziak v Future Electronics Ltd EAT 0271/11 the matters that would have to be established before there could be any reversal of the burden of proof would be, first, that there was a provision, criterion or practice; secondly, that it disadvantaged [those who share the protected characteristic] generally, and thirdly, that what was a disadvantage to the general created a particular disadvantage to the individual claimant. Only then would the employer be required to justify the provision, criterion or practice. It appears that the burden lies on the claimant to establish the first, second and third elements of the statutory definition, only then does it fall to the employer to justify the PCP as a proportionate means of achieving a legit aim. Section 26: harassment

[137]Section 26 states: (1) A person (A) harasses another (B) if- (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) The conduct has the purpose or effect ofi. violating B’ s dignity, or ii. creating an intimidating, hostile, degrading, humiliating or offensive environment for B …. (4) In deciding whether conduct has the effect referred to in subsection (1) (b), each of the following must be taken into account- (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect. 138. ‘Unwanted’ conduct is essentially the same as ‘unwelcome’ or ‘uninvited’ conduct.

[139]Harassment will be unlawful pursuant to section 26 if the unwanted conduct related to a relevant protected characteristic had either the purpose or the effect of violating the complainant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

[140]The harassment has to be “related to” a particular protected characteristic. The tribunal is required to identify the reason for the harassment with a particular focus on the context of the particular case. In Unite v Naillard

[2017] ICR 121

the EAT indicated that section 26 requires the tribunal to focus upon the conduct of the individual(s) concerned and ask whether their conduct is associated with the protected characteristic. In that case it was not enough that an individual had failed to deal with sexual harassment by a third party unless there was something about the individual’s own conduct which was related to sex. The focus will be on the person against whom the allegation of harassment is made and his conduct or inaction. So long as the tribunal focuses on the conduct of the alleged perpetrator himself it will be a matter of fact whether the conduct is related to the protected characteristic. As stated in Tees Esk and Wear Valleys NHS Foundation Trust v Aslam

[2020] IRLR 495

, “there must still … be some feature or features of the factual matrix identified by the tribunal, which properly leads it to the conclusion that the conduct in question is related to the particular characteristic in question, and in the manner alleged by the claim. In every case where it finds that this component of the definition is satisfied the tribunal therefore needs to articulate, distinctly and with sufficient clarity, what feature or features of the evidence or facts found have led to the conclusion that the conduct is related to the characteristic, as alleged. Section 26 does not bite on conduct which, though it may be unwanted and have the proscribed purpose or effect, is not properly found for some identifiable reason also to have been related to the characteristic relied upon, as alleged, no matter how offensive or otherwise inappropriate the tribunal may consider it to be.”

[141]The test as to the effect of the unwanted conduct has both subjective and objective elements to it. The subjective element involves looking at the effect of the conduct on the particular complainant. The objective part requires the tribunal to ask itself whether it was reasonable for the complainant to claim that the conduct had that effect. Whilst the ultimate judgement as to whether conduct amounts to unlawful harassment involves an objective assessment by the tribunal of all the facts, the claimant’s subjective perception of the conduct in question must also be considered. So, whilst the victim must have felt or perceived her dignity to have been violated or an adverse environment to have been created, it is only if it was reasonable for the victim to hold this feeling or perception that the conduct will amount to harassment. Much depends on context. See the guidance Richmond Pharmacology v Dhaliwal

[2009] ICR 724

revisited in Pemberton v Inwood [2018] IRLR where Underhill LJ stated: In order to decide whether any conduct falling within sub-paragraph (1)(a) has either of the proscribed effects under sub-paragraph (1)(b), a tribunal must consider both (by reason of subsection (4)(a)) whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) and (by reason of subsection (4)(c)) whether it was reasonable for the conduct to be regarded as having that effect (the objective question). It must also, of course, take into account all the other circumstances—subsection (4)(b). The relevance of the subjective question is that if the claimant does not perceive their dignity to have been violated, or an adverse environment created, then the conduct should not be found to have had that effect. The relevance of the objective question is that if it was not reasonable for the conduct to be regarded as violating the claimant's dignity or creating an adverse environment for him or her, then it should not be found to have done so.” The context of the conduct and whether it was intended to produce the proscribed consequences are material to the tribunal’s decision as to whether it was reasonable for the conduct to have the effect relied upon. Chawla v Hewlett Packard Ltd

[2015] IRLR 356

.) As stated in Dhaliwal: ‘If, for example, the tribunal believes that the claimant was unreasonably prone to take offence, then, even if she did genuinely feel her dignity to have been violated, there will have been no harassment within the meaning of the section. Whether it was reasonable for a claimant to have felt her dignity to have been violated is quintessentially a matter for the factual assessment of the tribunal. It will be important for it to have regard to all the relevant circumstances, including the context of the conduct in question.

[142]The frequency or repetition of comments may also be relevant: “However, it must be remembered that the word is “environment.” An environment is a state of affairs. It may be created by an incident, but the effects are of longer duration. Words spoken must be seen in context; that context includes other words spoken and the general run of affairs within the office or staff-room concerned. We cannot say that the frequency of use of such words is irrelevant. For example, if the conclusion of the Tribunal here had been that the words were used all the time, in effect, in regular conversation, one would have expected the ultimate conclusion to be very different and to have required the Respondent as employer of the other staff concerned to have given some explanation as to its action or inaction about it.” (per Langstaff J at paragraph 21 in Weeks v Newham College of Further Education,

UKEAT/0630/11/ZT

) Indirect discrimination

[143]Section 19 of the Equality Act 2010 states:(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.

(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if- (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) It puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) It puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim. …

[144]The law of indirect discrimination attempts to level the playing field by subjecting to scrutiny requirements which look neutral on their face but in reality work to the comparative disadvantage of people with a particular protected characteristic (Baroness Hale Chief Constable of West Yorkshire Police and another V Homer

2012 ICR 704

SC).

[145]All four conditions in section 19 (2) must be met before a successful claim for indirect discrimination can be established. That is to say, there must be a PCP which the employer applies or would apply to employees who do not share the protected characteristic of the claimant; that PCP must put people who share the claimant’s protected characteristic at a particular disadvantage when compared with those who do not share that characteristic; the claimant must experience that particular disadvantage; and the employer must be unable to show that the PCP is justified as a proportionate means of achieving a legitimate aim.

[146]The key element in indirect discrimination is the causal link between the PCP and the particular disadvantage suffered by the group and the individual. “Sometimes, perhaps usually, the reason [why the PCP results in the disadvantage] will be obvious: women are on average shorter than men, so a tall minimum height requirement will disadvantage women whereas a short maximum will disadvantage men. But sometimes it will not be obvious: there is no generally accepted explanation for why women have on average achieved lower grades as chess players than men, but a requirement to hold a high chess grade will put them at a disadvantage… Indirect discrimination assumes equality of treatment- the PCP is applied indiscriminately to all- but aims to achieve a level playing field, where people sharing a particular protected characteristic are not subjected to requirements which many of them cannot meet but which cannot be shown to be justified. The prohibition of indirect discrimination thus aims to achieve equality of results in the absence of such justification. It is dealing with hidden barriers which are not easy to anticipate or to spot.” (Essop and ors v Home Office (UK Border Agency) and another

2017 ICR 640

, per Baroness Hale) Implying a ‘reason why’ question into section 19 would undermine the protection afforded by that provision and could result in the continuation of discrimination.

[147]As explained in Essop the salient features of indirect discrimination are:(1) There is no express requirement for an explanation of the reasons why a particular PCP puts one group at a disadvantage when compared with others.

(2) While direct discrimination expressly requires a causal link between the less favourable treatment and a protected characteristic, indirect discrimination does not. Instead, it requires a causal link between the PCP and the particular disadvantage suffered by the group and the individual.

(3) The reasons why one group may find it harder to comply with the PCP than others are many and various. The reason for the disadvantage need not be unlawful in itself or be under the control of the employer or provider (although sometimes it will be). Both the PCP and the reason for the disadvantage are “but for” causes of the disadvantage: removing one or the other would solve the problem.

(4) There is no requirement that the PCP in question put every member of the group sharing the particular protected characteristic at a disadvantage.

(5) It is commonplace for the disparate impact or particular disadvantage, to be established on the basis of statistical evidence.

(6) It is always open to a respondent to show that its PCP is justified. Accordingly, there is no need to prove the reason why the PCP in question puts or would put the effective group at a particular disadvantage. What is required is correspondence between the disadvantage suffered by the group and the disadvantage suffered by the individual.

[148]The first step in an indirect discrimination claim is the identification of the PCP. The EHRC Employment Code 2011 confirms that the term “provision, criterion or practice” is capable of covering a wide range of conduct, noting: “the phrase… Is not defined by the Act but it should be construed widely so as to include, for example, any formal or informal policies, rules, practices, arrangements, criteria, conditions, pre-requisites, qualifications or provisions” (paragraph 4.5). It also states that a provision criterion or practice may include decisions to do something in the future- such as a policy or criterion that has not yet been applied- as well as a ‘one-off’ or discretionary decision.

[149]Case law has indicated that the concept of a “practice” suggests some degree of repetition. “It is, if it relates to a procedure, something that is applicable to others than the person suffering the disability… Indeed if that were not the case, it would be difficult to see where the disadvantage comes in, because disadvantage has to be by reference to a comparator, and the comparator must be someone to whom either in reality or in theory the alleged practice would also apply….A one-off application of the respondent’s disciplinary process cannot in these circumstances reasonably be regarded as a practice; there would have to be evidence of some more general repetition, in most cases at least.” (per HHJ Langstaff (President) Nottingham City Transport Ltd V Harvey EAT 0032/12). Further “…it is hard to see how an individual dismissal could, of itself, be a policy or a criterion (although it may certainly result from either). As for whether it could be a practice, I would approach this term in the same way as did the EAT in Harvey; that is, as suggesting some degree of repetition. An individual dismissal might certainly result from the application of a particular practice but it is hard to see how it could be a practice as such.” (per HHJ Eady QC in H Fox (father of G Fox, deceased) v British Airways plc EAT 0315/14 ).

[150]Although case law indicates that a one-off decision to dismiss will not amount to a practice within the meaning of section 19, this should be distinguished from a situation where an employer establishes for the first time a practice that it would repeat in the future. In Pendleton v Derbyshire County Council

2016 IRLR 580

the EAT concluded that a policy was capable of including a practice and the existence of highly unusual circumstances does not prevent an employer’s response from representing the operation of a practice or policy. The EAT held that there is a difference between an isolated failure to follow a policy and a decision that flows from the application, however rare, of a practice or policy. While an employer may not have had to apply the policy or practice previously the tribunal was entitled to conclude from the evidence that this is how it would respond should the circumstances arise again.

[151]In order for a PCP to emerge from evidence of what happened on a single occasion there must either be direct evidence that what happened was indicative of a practice of more general application, or some evidence from which the existence of such a practice can be inferred. (Gan Menachem Hendon Ltd v De Groen

2019 ICR 1023

. Likewise in Ishola v Transport for London

2020 ICR 1204

the Court of Appeal rejected the argument that all one-off decisions constitute a practice. The Court of Appeal accepted that the words “provision, criterion or practice” will not be narrowly construed or unjustifiably limited in their application. To test whether the PCP is discriminatory or not it must be capable of being applied to others because the comparison of disadvantage caused by it has to be made by reference to a comparator to whom the alleged PCP would also apply. However widely and purposefully purposively the concept of a PCP is to be interpreted, it does not apply to every act of unfair treatment of a particular employee. The words “provision, criterion or practice” all carry the connotation of a state of affairs indicating how similar cases are generally treated or how a similar case would be treated if it occurred again. Although a one-off decision or act can be a practice it is not necessarily one.

[152]A PCP need not impose an absolute bar on the employee in order to be caught by section 19.

[153]It is important that the claimant identifies the PCP with precision. A PCP must not be exclusive to a group sharing a protected characteristic. There is no statutory requirement that a PCP actually apply to members of the comparative group because it allows for the creation of a hypothetical comparator.

[154]It is a requirement that the PCP puts or would put people who share the claimant’s protected characteristic at a particular disadvantage when compared with people who do not have that characteristic. The Act also requires that it puts or would put the claimant herself at that disadvantage. Once it is clear that there is a provision, criterion or practice which puts or would put people sharing the claimant’s characteristic at a particular disadvantage the next stage is to consider a comparison between workers with the protected characteristic and those without it. The circumstances of the two groups must be sufficiently similar for a comparison to be made and there must be no material differences in circumstances.

[155]The pool for comparison generally consists of the group which is (or would be) affected (either positively or negatively) by the PCP in question. It may sometimes be necessary to carry out a formal comparison between the groups using statistical evidence but this is not always needed. Statistical analysis is not the only method of establishing a particular disadvantage or a disparate impact. Claimants may rely on evidence from expert and other witnesses and tribunals may take “judicial notice” of certain matters that are well known such as the adverse impact caused to women by refusal to allow part-time working. If there is no relevant statistical evidence the experience of those who belong to group sharing protected characteristics is important material for a tribunal to consider. Such individuals may be able to provide compelling evidence of disadvantage even if there are no statistics. A tribunal should then evaluate such evidence in the usual way, reaching conclusions as to its reliability and making appropriate findings of fact.

[156]Dobson v North Cumbria Integrated Care NHS Foundation Trust

2021 IRLR 729

dealt with issues of ‘judicial notice’ and identified a number of principles:a. There are two broad categories of matters of which judicial notice may be taken: facts that are so notorious or so well established to the knowledge of the court or the tribunal that they may be accepted without further enquiry; and other matters that may be noticed after inquiry, such as referring to works of reference or other reliable and acceptable sources.

b. The court or tribunal must take judicial notice of matters directed by statute and of matters that have been so noticed by the wellestablished practice or precedents of the courts.

c. The tribunal has a discretion and may or may not take judicial notice of a relevant matter and may require it to be proved in evidence.

d. The party seeking judicial notice of a fact has the burden of convincing a judge that the matter is one capable of being accepted without further inquiry.

[157]The EHRC code states that “disadvantage” is to be construed as “something that a reasonable person would complain about so an unjustified sense of grievance would not qualify. A disadvantage does not have to be quantifiable and the worker does not have to experience actual loss (economic or otherwise). It is enough that the worker can reasonably say that they would have preferred to be treated differently” paragraph 4.9.

[158]It is not enough for a claimant to show that a PCP has placed those sharing his or her characteristic at a disadvantage: the disadvantage must be a “particular” disadvantage. Particular disadvantage does not refer to serious, obviously particularly significant cases of inequality but instead denotes that it is particularly persons of a given protected characteristic who are at a disadvantage because of the practice in issue.

[159]Indirect discrimination is still unlawful even where the discriminatory effect of the PCP is unintentional unless the respondent establishes the objective justification defence.

[160]When considering an employer’s objective justification defence, the ‘legitimate aim’ must be identified. The aim pursued should be legal, should not be discriminatory in itself and must represent a real, objective consideration. The objective of the measure in question must correspond to a real need and the means used must be appropriate with a view to achieving the objective and be necessary to that end. (Bilka-Kaufhaus GmBH v Weber von Hartz

[1986] IRLR 317

[161]The question as to whether an aim is “legitimate” is a question of fact for the tribunal. The categories are not closed, although cost saving on its own cannot amount to a legitimate aim (Woodcock v Cumbria Primary Care Trust

2012 ICR 1126

[162]Once the legitimate aim has been identified and established it is for the respondent to show that the means used to achieve it were proportionate. Treatment is proportionate if it is an ‘appropriate and necessary’ means of achieving a legitimate aim. A three- stage test is applicable to determine whether criteria are proportionate to the aim to be achieved. First, is the objective sufficiently important to justify limiting a fundamental right? Secondly, is the measure rationally connected to the objective? Thirdly, are the means chosen no more than is necessary to accomplish the objective? (R(Elias) v Secretary of State for Defence

[2006] IRLR 934

[163]Determining proportionality involves a balancing exercise. An employment tribunal may wish to conduct a proper evaluation of the discriminatory effect of the treatment as against the employer’s reasons for acting in this way, taking account of all relevant factors (EHRC Code paragraph 4.30). The measure adopted by the employer does not have to be the only possible way of achieving the legitimate aim, but the treatment will not be proportionate if less discriminatory measures could have been taken to achieve the same objective (see EHRC Code (para 4.31). It will be relevant for the tribunal to consider whether or not any lesser measure might have served the aim.

[164]It is necessary to weigh the need against the seriousness of the detriment to the disadvantaged person. It is not sufficient that the respondent could reasonably consider the means chosen as suitable for achieving the aim. To be proportionate a measure has to be both an appropriate means of achieving the legitimate aim and (reasonably) necessary in order to do so (Homer v Chief constable of West Yorkshire Police Authority

[2012] IRLR 601

.) Protected characteristic: religion

[165]The claimant relies upon the protected characteristic of religion or belief for part of her Tribunal claim. Section 10 Equality Act 2010 provides:(1) Religion means any religion and a reference to religion includes a reference to lack of religion.

(2) Belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief.

(3) In relation to the protected characteristic of religion or belief- (a) A reference to a person who has a particular protected characteristic is a reference to a person of a particular religion or belief; (b) A reference to persons who share a protected characteristic is a reference to persons who are of the same religion or belief.

[166]Islam is, of course, recognised as a religion (see, inter alia, the EHRC Code).

[167]Paragraph 2.56 of the EHRC Code states: ‘Religious belief’ goes beyond beliefs about and adherence to a religion or its central articles of faith and may vary from person to person within the same religion. Paragraph 2.60 makes clear that the right to hold a particular religion or belief is an absolute right under

article 9 of the ECHR

, whilst manifestation of that religion or belief is a qualified right which may, in certain circumstances, be limited. It may need to be balanced against other Convention rights, for example. Manifestation of a religion of belief can include following a certain dress code (paragraph 2.61 EHRC Code). There may not always be a clear line between holding a religion or belief and the manifestation of that religion or belief. Placing limitations on a person’s right to manifest their religion or belief may amount to unlawful discrimination; this would usually amount to indirect discrimination (also paragraph 2.61.) The ACAS Guide to religion or belief also indicates that ‘what makes up religious belief or practice may vary among people in that religion.’ In interpreting ‘religious belief,’ tribunals will not normally seek to distinguish between beliefs that are mandatory as part of a religion and those that are based on or derived from cultural practices and tradition within a particular religious creed.

[168]Tribunals should not impose too high a hurdle when it comes to the need for proof of actual adherence, particularly in cases based on the assertion of religious beliefs. In R (Williamson and ors) v Secretary of State for Education and Employment 2005 2 AC 246, a case concerned with the interpretation of

Article 9 ECHR

Lord Nicholls observed: ‘When the genuineness of a claimant’s professed belief is an issue in the proceedings, the court will enquire into and decide this issue as a question of fact. This is a limited enquiry. The court is concerned to ensure an assertion of religious belief is made in good faith… But, emphatically, it is not for the court to embark on an enquiry into the asserted belief and judge its “validity” by some objective standard such as the source material upon which the claimant founds his belief or the orthodox teaching of the religion in question or the extent to which the claimant’s belief conforms to or differs from the views of others professing the same religion. Freedom of religion protects the subjective belief of an individual.’

[169]Eweida and ors v United Kingdom

2013 IRLR 231

, ECtHR, made clear that in order to constitute a manifestation of a belief within the meaning of Article 9, the act of manifestation has to be intimately connected to the relevant religion or belief. However, there is no requirement for an applicant to establish that he or she has acted in fulfilment of a duty mandated by the religion or belief system in question. In the Eweida case, Article 9 was held to have been engaged, and the freedom to manifest religious belief infringed, when a devout Christian was not permitted to wear a cross visibly in her workplace. This was so even though it was not a stipulation of the Christian faith that crosses be worn. Even where Article 9 is engaged, interference in a person’s right to manifest his or her religion or belief is potentially justifiable in accordance with Article 9(2). This provides that restrictions on the right to manifest thought, conscience or religion are permissible so long as they ‘are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.’

[170]One particular difficulty that arises in the context of indirect religious discrimination stems from the fact that individuals within a particular religion often manifest their religious beliefs in different ways. It seems clear that the religious belief in question need not be shared by adherents of the religion as a whole but how many others must share the relevant belief in order for the claimant to establish group disadvantage? The Court of Appeal has held that solitary disadvantage is not sufficient: Eweida v British Airways plc

2010 ICR 890

, CA,. In that case it was held that an employer’s policy prohibiting the wearing of jewellery did not indirectly discriminate against a devout Christian whose wish to wear a silver cross on open view at work was denied by the policy, because there was no evidence that the policy put Christians at a particular disadvantage. The Court of Appeal identified a range of views as to how large a cohort it might be necessary to identify in order to establish indirect discrimination, without deciding which view was correct. However, the Court of Appeal’s decision must now be viewed in light of the subsequent ruling of the European Court of Human Rights (ECtHR) in the same case ( Eweida and ors v United Kingdom

2013 IRLR 231

, ECtHR.) That Court held that the rejection of the claimant’s complaint of indirect discrimination by the UK domestic courts breached

Article 9(1) of the European Convention on Human Rights

. In particular, it held that the right to freedom of thought and religion enshrined in Article 9 encompassed the right to manifest one’s religion or belief where the act of manifestation had a sufficiently close and direct nexus with the underlying belief. In so concluding, the Court stated: ‘In order to count as a “manifestation” within the meaning of Article 9, the act in question must be intimately linked to the religion or belief. An example would be an act of worship or devotion which forms part of the practice of a religion or belief in a generally recognised form. However, the manifestation of religion or belief is not limited to such acts; the existence of a sufficiently close and direct nexus between the act and the underlying belief must be determined on the facts of each case. In particular, there is no requirement on the applicant to establish that he or she acted in fulfilment of a duty mandated by the religion in question.’

[171]However, the Court of Appeal later confirmed in Gray v Mulberry Co (Design) Ltd

2020 ICR 715

, CA, that the group disadvantage requirement cannot simply be ignored in a section 19 claim. Unfair dismissal

[172]Employees with qualifying service have a right not to be unfairly dismissed. Section 95 Employment Rights Act 1996 deals with the concept of dismissal. A dismissal includes where (section 95(1)(c): “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.”

[173]An employee alleging constructive dismissal must show that the employer committed a serious or repudiatory breach of contract (serious enough to justify the employee resigning), that she resigned in response to that breach (not for some other unconnected reason), that she did not delay too long or acquiesce in relation to the breach or affirm the contract notwithstanding the breach.

[174]The employee is only entitled to treat herself as constructively dismissed if the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract. The fundamental (or repudiatory) breach of contract may be based on an express or an implied term of the contract of employment.

[175]One of the central implied terms of any contract of employment is the ‘implied term of mutual trust and confidence.’ This is the implied term that the parties will not, without reasonable and proper cause, conduct themselves in a manner which is calculated or likely to destroy or seriously damage the relationship of mutual trust and confidence between employer and employee (see Malik and Mahmud v Bank of Credit and Commerce International SA

[1997] ICR 606

). Any breach of the implied term of mutual trust and confidence will be considered to be a fundamental breach of contract given the central and fundamental nature of this implied term to the existence of the contract of employment.

[176]As stated in Woods v WM Car Services (Peterborough)

[1981] ICR 666

: “To constitute a breach of this implied term, it is not necessary to show that the employer intended any repudiation of the contract: the tribunal’s function is to look at the employer’s conduct as a whole and determine whether it is such that its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it.”

[177]Reasonableness of the respondent’s actions may be evidence as to whether there is a fundamental breach (and a constructive dismissal) but the test nevertheless remains contractual (Lewis v Motorworld Garages Ltd

[1985] IRLR 465

, also Western Excavating (ECC) Ltd v Sharp

[1978] ICR 221

). It is not enough for the employee to leave merely because the employer has acted unreasonably; its conduct must amount to a breach of the contract of employment.

[178]Where it is alleged that an employee resigned in response to a ‘last straw’ event London Borough of Waltham Forrest v Omilaju

[2005] IRLR 35

reminds us (per Dyson LJ): “14 The following basic propositions of law can be derived from the authorities: 1. The test for constructive dismissal is whether the employer’s actions or conduct amounted to a repudiatory breach of the contract of employment. 2. It is an implied term of any contract of employment 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 mutual trust and confidence between employer and employee: see, for example, Malik v Bank of Credit and Commerce International … 3. Any breach of the implied term of mutual trust and confidence will amount to a repudiation of the contract…The very essence of the breach of the implied term is that it is calculated or likely to destroy or seriously damage the relationship. 4. The test of whether there has been a breach of the implied term of mutual trust and confidence is objective. As Lord Nicholls said in Mahmud at page 610H, the conduct relied on as constituting the breach must ‘impinge on the relationship in the sense that, looked at objectively, it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer.’ 5. A relatively minor act may be sufficient to entitle the employee to resign and leave his employment if it is the last straw in a series of incidents. It is well put at para [480] in Harvey on Industrial Relations and Employment Law: ‘Many of the constructive dismissal cases which arise from the undermining of trust and confidence will involve the employee leaving in response to a course of conduct carried on over a period of time. The particular incident which causes the employee to leave may in itself be insufficient to justify his taking that action, but when viewed against a background of such incidents it may be considered sufficient by the courts to warrant their treating the resignation as a constructive dismissal. It may be the “last straw” which causes the employee to terminate a deteriorating relationship.” … 15. The last straw principle has been explained in a number of cases, perhaps most clearly in Lewis v Motorworld Garages Ltd

[1986] ICR 157

. Neill LJ said (p167C) that the repudiatory conduct may consist of a series of acts or incidents, some of them perhaps quite trivial, which cumulatively amount to a repudiatory breach of the implied term of trust and confidence. Glidewell LJ said at p169F: ‘(3) The breach of this implied obligation of trust and confidence may consist of a series of actions on the part of the employer which cumulatively amount to a breach of the term, though each individual incident may not do so. In particular, in such a case the last action of the employer which leads to the employee leaving need not itself be a breach of contract; the question is, does the cumulative series of acts taken together amount to a breach of the implied term?...This is the “last straw” situation. 16. Although the final straw may be relatively insignificant, it must not be utterly trivial: the principle that the law is not concerned with very small things (more elegantly expressed in the maxim “de minimis non curat lex”) is of general application. … 19. ….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. 20. I see no need to characterise the final straw as “unreasonable” or “blameworthy” conduct. It may be true that an act which is the last in a series of acts which, taken together, amounts to a breach of the implied term of trust and confidence will usually be unreasonable and, perhaps, even blameworthy. But, viewed in isolation, the final straw may not always be unreasonable, still less blameworthy. Nor do I see any reason why it should be. The only question is whether the final straw is the last in a series of acts or incidents which cumulatively amount to a repudiation of the contract by the employer. The last straw must contribute, however slightly, to the breach of the implied term of trust and confidence. Some unreasonable behaviour may be so unrelated to the obligation of trust and confidence that it lacks the essential quality to which I have referred. 21. If the final straw is not capable of contributing to a series of earlier acts which cumulatively amount to a breach of the implied term of trust and confidence, there is no need to examine the earlier history to see whether the alleged final straw does in fact have that effect. Suppose that an employer has committed a series of acts which amount to a breach of the implied term of trust and confidence, but the employee does not resign his employment. Instead, he soldiers on and affirms the contract. He cannot subsequently rely on these acts to justify a constructive dismissal unless he can point to a later act which enables him to do so. If the later act on which he seeks to rely is entirely innocuous, it is not necessary to examine the earlier conduct in order to determine that the later act does not permit the employee to invoke the final straw principle.''

[179]When resigning and claiming to have been constructively dismissed, an employee who is a victim of a continuing cumulative breach of the implied term of trust and confidence is entitled to rely on the totality of the employer’s acts, notwithstanding a prior affirmation, provided the later act forms part of the series (Kaur v Leeds Teaching Hospitals NHS Trust

[2019] ICR 1

[180]If the employer does commit a fundamental or repudiatory breach of contract, the employee must resign in response to that breach. The breach of contract need not be the sole cause of the resignation but it must be an effective cause of the resignation.

[181]The employee must not affirm the contract, whether by prolonged delay before resigning or, by implication, by an equivocal election or by conduct that is consistent only with the continued existence of the contract.

[182]Where there is a constructive dismissal which is not for an automatically unfair reason (such as a protected disclosure), the dismissal may nevertheless be found to be a fair dismissal if the respondent can show that the reason for dismissal was one of the potentially fair reasons permitted by the Employment Rights Act 1996. In the context of a constructive dismissal, the Tribunal will be concerned with the reason, or principal reason, for the fundamental breach of contract. If a potentially fair reason for dismissal is established, then the Tribunal will go on to consider whether the dismissal was fair, applying the range of reasonable responses test to both the substance of the dismissal and the procedure adopted by the respondent. The Tribunal will consider whether, applying the test of fairness in section 98(4), the respondent acted reasonably in all the circumstances in treating that reason as sufficient reason to dismiss the claimant. The respondent in this case did not seek to argue that there was a fair reason for any dismissal, rather that there was no constructive dismissal in the first place.

CONCLUSIONS

[183]Taking account of the findings of fact and the applicable law, the claimant’s claims have been determined as set out in the following paragraphs. Harassment On or around 3 September 2023, Karen Nelson made the following comment to Kainat Yaseen: “Why can’t she wear pants or leggings.”

[184]I have re-listened to the audio recordings and compared them with the three versions of a transcript for each recording/conversation. On doing so, I am satisfied that the most accurate transcriptions of all three of the recordings/conversations are the transcripts prepared by the respondent’s solicitors, Hill Dickinson.

[185]Nowhere within the recordings or the accurate transcription does Ms Nelson say, “why can’t she wear pants or leggings.” The closest phrase is “just wear leggings or trousers or whatever.” That sentence may or may not have been uttered in reference to the claimant. That is not clear from the rest of the recording or the context of the conversation. Later on, in the same conversation, the claimant is referred to by name, and it is asserted that the claimant is not wearing the correct uniform (and that if Karen sees her, she will have to say to her that she needs to wear correct uniform because all of them should, and Wendy said so).

[186]The claimant has not proved the facts on which this complaint of harassment is based. The factual allegation is not proven. This complaint of harassment could, therefore, fail for that reason alone. It is for the claimant to prove the factual basis of her complaint of harassment.

[187]I have nonetheless gone on to consider what the evidence shows that Ms Nelson actually said. Taking the accurate record of what Karen Nelson did say during the conversation, this may well have amounted to ‘unwanted conduct’ from the claimant’s point of view as she did not welcome being talked about in her absence and in the home of a service user. I am prepared to accept that what was said met the requirement for ‘unwanted conduct’ in section 26 of the Equality Act.

[188]Viewed in its proper context, the discussion about wearing leggings or trousers in relation to unform requirements and the claimant is conduct which related to religion. This is because the claimant chose not to wear leggings or trousers as a manifestation of her religious belief. She made this choice in order to comply with the religious requirement of modesty as she interpreted it. Whilst not all Muslim women would have viewed wearing trousers or leggings as a breach of religion-based modesty requirements, this claimant did view it as such. It is not for the Tribunal to assess whether Islam forbids its female adherents from wearing trousers or leggings. It seems to be accepted, on the basis of the evidence presented, that many Muslims believe that there is a requirement to dress modestly, that interpretations of modesty vary (there is no single accepted definition), and that one interpretation of modesty which is shared by some Muslims is the requirement not to wear trousers or leggings as they are considered to show too much of the outline of the body. Furthermore, the comments were made by Ms Nelson in the context of a conversation with another female Muslim colleague and seem to have been part of a discussion where she was trying to understand what she (Ms Nelson) perceived as non-compliance with the respondent’s workwear policy.

[189]The real difficulty with the claimant’s case is whether the unwanted conduct had the necessary purpose or effect as set out in section 26(1)(b). I remind myself that section 26 requires me to consider not just the claimant’s own subjective perception and feelings, but also the other circumstances of the case. This includes whether it was reasonable for the conduct to have the proscribed effect (section 26(4)).

[190]I have concluded that the conduct did not have the proscribed purpose. The reality is that the participants in the conversation did not know that they were being recorded or that anyone would tell the claimant what they had been saying. They did not expect their comments to get back to the claimant. In such circumstances they cannot possibly have intended the comments to violate the claimant’s dignity or create the relevant proscribed environment for her. The comments did not have the necessary proscribed purpose.

[191]I have also concluded that the comments which were actually said did not have the proscribed effect either. There are a number of reasons for this. First, the context of the comment is a conversation about Healthcare Assistants’ adherence to the respondent’s workwear policy. It is a statement that all HCAs need to wear correct uniform and that those who do not will have this raised with them directly. The claimant is referred to as someone in breach of the policy and that Karen will follow her manager’s instructions and raise this with the claimant to get her to comply with the uniform policy. The comments were, prima facie, legitimate comments for Karen to make in the context of a conversation about uniform requirements and what the line manager in question had said was required of the HCAs.

[192]There is nothing intrinsically offensive about the language used. It is a statement of Karen’s observations. A suggestion that employees should/could wear trousers or leggings “or whatever” is innocuous. It cannot objectively be seen as violating her dignity. It is just a one-off comment referring to the uniform policy. It is not a threat of disciplinary action; it is not directed at the claimant. It is not said with hostility. At most, there is a lack of understanding as to why the claimant wears the clothes that she does and why she does not wear clothing which other Muslim female colleagues wear and apparently consider to be sufficiently modest.

[193]When giving evidence to the Tribunal, the claimant indicated that she found the mere mention of the words ‘pants’ and ‘leggings’ offensive if said alongside her name. She ‘took offence to that.’ She was either unable or unwilling to see that using the words in relation to her might be legitimate or necessary if there is a discussion about uniform requirements. She effectively wished to make this a forbidden topic of conversation in relation to the claimant (i.e. that trousers, leggings or pants, should not be discussed in relation to the claimant.) This argument might have had slightly more force if there was evidence to suggest that Ms Nelson would or could have had any idea that referring to these items of clothing in relation to the claimant would be found to be offensive and she nevertheless proceeded to do so. In such circumstances she would be deliberately ignoring the claimant’s feelings and preferences. However, there is no evidence of this. I am not persuaded that Ms Nelson could reasonably have been expected to know that the claimant would view her comments as offensive, intimidating, hostile, degrading etc. There is no evidence to suggest that she knowingly or recklessly made the comments understanding that they could be seen as having that effect on the claimant. She was entirely unaware that the comments would be received by the claimant as they were, or that they would be construed as offensive or as harassment.

[194]The reality is that the claimant was upset to find out that she had been talked about in her absence. Whilst it is regrettable that she was referred to and that this was reported to her, it would be overstating the legal position to suggest that colleagues are forbidden from talking about other colleagues in their absence (irrespective of the subject matter or context) without running the risk of being found to have harassed the said colleagues. That would be to put employees and employers in an impossible position, a virtual straitjacket. In order for this comment to have the proscribed effect, there needs to be something about the comment itself or the context of the conversation which makes it into harassment. The mere fact that the claimant is referred to in her absence is not sufficient.

[195]I am satisfied that the claimant was unhappy to find that she had been mentioned at all during the conversation. The very fact that a service user’s sibling had recorded the conversation made her subjectively uncomfortable that she was being discussed in homes where she also worked. She would have been upset by this whatever the subject matter of the conversation or the nature of the comments made. However, it was not reasonable of the claimant to find that the fact that she was being spoken was a violation of her dignity or that it created the proscribed environment.

[196]The claimant’s real concern was that she was not being given her own way in relation to the uniform requirements. She was angry that she was not being allowed to wear the Islamic dress and that her practice had been challenged by management. She has elided that context with the actual content of the comments on the recording in order to say that she has been harassed. I am not persuaded that she genuinely and subjectively found the comments on the recording created an intimidating hostile, degrading, humiliating (etc) environment for her. Her outrage appeared somewhat artificial when challenged in cross examination. At best, she has wholly misconstrued what has been said by her colleagues.

[197]More importantly, even if this was her genuine subjective perception (s26 (4)(a)), it was not reasonable for the comments to have the proscribed effect taking into account all the surrounding circumstances (s26(4)(c)). In particular, whether the claimant agreed with it or not, the respondent had reviewed levels of compliance with its uniform requirements in light of an incident involving another member of staff. (This was entirely unrelated to the claimant). The respondent was entitled to do this even though the claimant objected to uniform issues being raised or discussed. It was entitled to have a workwear policy and take steps to assess whether it was being adequately complied with. Furthermore, the context of the evidence shows that many people within the organisation (both Ms Nelson and managers) were genuinely trying to understand the claimant’s clothing choices, the reasons for them, and whether they complied with the workwear policy. These were genuine questions and a genuine attempt to understand what could be done to balance the potentially competing interests of the claimant and the respondent organisation.

[198]Furthermore, this is a one-off or isolated comment. I am not satisfied that such an isolated comment could create the necessary proscribed environment for her. As confirmed in Weeks v Newham College of Further Education an environment is a state of affairs. The frequency of use of the words is not irrelevant. In short, if this is something said repeatedly it has a greater prospect of creating a particular state of affairs or environment for the employee. On the other hand, if it is said only once, it may be unlikely to have such an effect or influence on the claimant’s environment.

[199]The claimant talked about the tone of the comments and referred to laughter on the recording. Having listened to the recordings again, I am satisfied that there is nothing about the tone of the conversation or any laughter to suggest that the claimant was being mocked or laughed at. Nor is the tone aggressive or offensive. It is conversational. The tone of the recordings does not assist the claimant in showing that the comments had the proscribed effect upon her within the meaning of section 26.

[200]In light of the above, I have concluded that the claimant’s specific factual allegation has not been proved. The comment that she alleged was not, in fact, made. Further, the comments on the recording which came closest to matching the claimant’s allegation, did not meet the test for harassment related to religion. They did not have the necessary proscribed purpose or effect. Consequently, this complaint of harassment fails and is dismissed. “But you’re all bloody British any ways aren’t you, you know what I mean.”

[201]The recording and the solicitor’s transcript demonstrate that the alleged comment was actually made (albeit with inconsequential differences in transcription.) The factual allegation is proved.

[202]The comment is clearly related to race as it refers to people being White, English, and British.

[203]Having reviewed all the available evidence I am again satisfied that the claimant has wholly misconstrued what she has heard. The comment, particularly when viewed in context, cannot reasonably or objectively said to violate the claimant’s dignity or create a hostile degrading, humiliating or offensive environment for her. Both on the face of it and when viewed in context, the comment is intended to be inclusive rather than exclusive or exclusionary. It is designed and intended to show commonalities between all the Healthcare Assistants whether they are White British, Asian British, Pakistani British or some other ethnicity. The comment is made in the context of asserting that it would be racist (and therefore wrong) to only hire employees possessing a particular national or ethnic characteristic (i.e., White, British, English.) The comment that they are “all bloody British” is intended to show that everyone, no matter their colour or ethnic origin, is considered to be equal and the ‘same’ from an employment point of view and all equally “British” (i.e., race or colour should be, and is, irrelevant to hiring and employment decisions.) Despite it being explored in detail with the claimant in her evidence, she was unable to explain satisfactorily how this could be said to be exclusionary, discriminatory, or racist. The claimant, however, maintained that the comment’s meaning was, in fact, the opposite of its objective meaning.

[204]As the claimant struggled to justify her conclusion that the comment was exclusionary rather inclusive, she highlighted the use of the word ‘bloody’ and suggested that this word made the comment into an act of harassment. This was explored in the witnesses’ oral evidence to the Tribunal.

[205]I accept that on occasion when asked about her comment, Ms Nelson omitted the word ‘bloody’ from her answer. I am not satisfied that she did this because she realised that what she had said was offensive or racist. Rather, she had been recorded using a word which is often not used in ‘polite conversation.’ Ms Nelson appeared to be a little embarrassed about this, particularly when the claimant proceeded to emphasise this choice of language during her questions to Ms Nelson.

[206]I am not satisfied that the inclusion of the word ‘bloody’ meant that the comment had the necessary proscribed purpose or effect, either subjectively or objectively. The claimant maintained that she had never heard the word used before and did not know what it meant at the time. If this is true, the word cannot have been found to be offensive as it will not have been understood. In any event, the word is in common usage and has a variety of meanings. When viewed in the context of the sentence I am satisfied that its only relevant meaning is to provide emphasis. It is a way of emphasising the fact that they are all considered British (and equal) by the speaker. Taken in context, it is not offensive and is not properly characterised as swearing. Even if the claimant found it offensive, it was not reasonable for it to have the effect on the claimant that is required for a successful section 26 claim. It was not objectively reasonable for the comment to create the proscribed environment for the claimant.

[207]In light of the above, this comment does not constitute harassment related to race and this complaint of harassment also fails and is dismissed. Direct discrimination

[208]The treatment relied upon is that the claimant was paid at Band 3 rates. This is accepted. She was employed on Band 3 terms and conditions and paid accordingly.

[209]The comparators for the purposes of the direct discrimination claim are: K Nelson, J McBrine, K Cropper, K Gregory, and Melanie Roberts. All of the comparators are White British and are paid at Band 4 level. They are engaged as Band 4 employees on Band 4 terms and conditions.

[210]The claimant was clearly less favourably treated than her comparators in relation to pay.

[211]However, I have to consider whether the comparators are legitimate comparators taking into account section 23 of the Equality Act. Are there material differences between the claimant’s circumstances and those of the comparators, other than the difference of race? Is it an appropriate comparison?

[212]I have concluded that there were material differences between the claimant’s circumstances and those of her comparators. In particular, they were employed on different contracts to the claimant. They had applied for Band 4 roles and the claimant had not. They were employed at different pay grades as a result. Whilst the clinical aspects of the claimant’s job role were effectively the same as the comparators’, the comparators had other, additional responsibilities. For example, they had supervisory responsibilities. This is not an Equal Pay claim pursued under Chapter 3 (section 64-71) of the Equality Act 2010. The Tribunal is not tasked with considering whether the work of the Band 4 employees was ‘like work’ or ‘work of equal value’ to the claimant’s when the protected characteristic relied upon is race rather than sex.

[213]There is no evidence to suggest a link between pay and race in this case. Pay is based on the banding system under “Agenda for Change.” The collective pay grievance was an equal pay (sex) claim. The signatories to that grievance (Band 3s) included a number of different ethnicities. Some were white British and paid in the same way as the claimant. This would tend to show that the racial characteristics of the Band 3s are not an influence on the level of pay for Band 3s. Each band is paid at the correct rate for their contractual role following the Agenda for Change scheme.

[214]In addition, aside from a difference in race and a difference in treatment, I am unable to identify the ‘something more’ which would shift the burden of proof to the respondent at the second stage (see Madarassy).

[215]In any event, if I am wrong about that and the burden of proof does shift to the respondent, I am satisfied that they have discharged it. On balance of probabilities, the reason for the pay is nothing whatsoever to do with race:a. The claimant was employed on a Band 3 contract from the beginning. She was not downgraded from Band 4.

b. The job descriptions differ for the Band 4s as compared to the Band 3s. Whilst the clinical roles may be similar, the Band 4s have additional tasks and responsibilities that the Band 3s do not. It was not a question of adding new tasks and responsibilities to Band 4 that were not there previously, rather it was a question of ensuring that individual employees were actually doing all the tasks required under their contract (i.e. a question of enforcement of pre-existing differentials rather than the addition of tasks to create a differential.)

c. The claimant has never applied for a Band 4 role. If she had, she might have been successful. If appointed to a Band 4 role, there is no evidence to suggest that she would not have been paid at a Band 4 level. Likewise, a white British person applying for Band 3 would be (and in fact was) paid at the Band 3 level.

d. There was a historical explanation that some Band 4 roles were downgraded to Band 3 in the past when run by a different organisation. There is nothing in the evidence to suggest that roles were selected for downgrading based on the racial characteristic of the incumbents. The claimant was not herself downgraded from Band 4 to Band 3- she had never been employed at Band 4. Nor was evidence given that suggested that jobs done by non-white British employees were selected to be downgraded to Band 3.

e. The respondent has taken the collective grievance through an informal and a formal stage. It has carried out job matching processes and taken the job descriptions to Agenda for Change panels. The evidence derived from the process indicates that the Band 3 job description has been correctly matched at Band 3 and it is the Band 4 role which may not be. A procedural issue has been identified which suggests that the process needs to be redone to ensure that employees have adequate input into the review of the job description before it goes to the review panel. The process will then go back to an Agenda for Change panel. However, it is clear that the respondent has taken the process seriously. There is no suggestion at any stage of the grievance that there is any element of race discrimination involved in the grading of the two different roles.

[216]In light of the above, the claimant’s claim of direct race discrimination fails and is dismissed. I am not satisfied that she was paid less because of race. Rather the determinative factor was the Banding of the role, the terms and conditions of the role and the responsibilities attached to the role. These were the terms and conditions for the job that she applied for and was appointed to. Indirect discrimination

[217]The PCP relied upon is the requirement that staff adhere to and wear uniform that is compliant with the respondent’s workwear policy. The PCP is not in dispute. The PCP was applied to staff who did not share the claimant’s Muslim faith, as well as those that did. The policy, in particular, applied to all Healthcare Assistants working in the CLTVT.

[218]The claimant asserts that the disadvantage is that those of the Muslim faith are not able to adhere to its requirement of modesty given the workwear policy.

[219]The respondent asserts that there is no group disadvantage. The respondent says that the Islamic dress or jilbab is not the only way to achieve modesty, rather that it is just seen (by the claimant) as the best way of doing it. Therefore, a PCP which prevents the wearing of the jilbab would not entail group disadvantage.

[220]I disagree with the respondent’s contention about group disadvantage. First, the claimant was saying that, in her view, other forms of dress (apart from the Islamic dress/jilbab) did not meet the Islamic requirement for modesty. She was not just saying that the dress was the best way to show modesty. Rather, she was saying that any alternatives were not sufficiently modest to be religiously compliant as far as she was concerned. In her view, the Islamic dress was the only adequate way to dress modestly at work. It was the way she manifested her faith. Hence, she was asked about the fit of trousers and whether baggy or loose-fitting trousers would be sufficiently modest. She asserted that only a long skirt or dress would be sufficiently modest as the shape of her legs would be visible in any form of trousers (however indistinctly.) This may well be at the stricter end of the spectrum of modest dressing but the adherents of a given religion may express or manifest that adherence in a variety of different ways. Some Muslims may agree with the claimant that only a long dress or skirt can be deemed modest, whereas others would see loose fitting trousers under a kneelength dress as adequately maintaining modesty. The case law in relation to religion and belief in the Equality Act suggests that it is not for the Tribunal to decide on the correct interpretation of the tenets of any given faith. The Tribunal is not in a position to say that the claimant’s interpretation of the modesty requirement is incorrect or too restrictive to count as a manifestation of the faith. The respondent’s own evidence is that when it sought advice on the subject, it was told that there is no one universally recognised definition or description of modest dress in Islam.

[221]I take this observation as the backdrop to the application of the section 19 test to the facts of this case.

[222]The requirement to wear uniform which is compliant with the respondent’s workwear policy puts the claimant at an individual disadvantage in that it means that she is unable to adhere to the requirements of her Muslim faith (as she understand them) whilst complying with the respondent’s policy. Individual disadvantage is established.

[223]The group disadvantage question is: does the PCP put the group of Muslim HCAs in the CLTVT Team at substantively the same disadvantage (or would it do so.) That group of Muslim employees is unlikely to be homogenous in its interpretation of Islam. The suggestion from the evidence that I have seen, is that different Muslim employees may adapt the policy in different ways in order to comply with the requirement of modest dressing as they themselves interpret it. Thus, some Muslim colleagues may wear tights or leggings under a dress. Alternatively, they may wear a longer tunic covering the bottom and part of the thighs, with loose trousers underneath it. But if some of the cohort of Muslim employees interpret modesty in the same way as the claimant (at the stricter end of the spectrum) they too would struggle to comply with the PCP whilst adhering to the requirements of the Muslim faith, as they understand and interpret them. As stated in Essop there is no requirement that the PCP in question put every member of the group sharing the particular protected characteristic at a disadvantage. Also, a PCP need not impose an absolute bar on the employee in order to be caught by section 19. (I am charged with looking for ‘disadvantage.’) As the EHRC Code states, a disadvantage does not have to be quantifiable and the worker does not have to experience actual loss (economic or otherwise). It is enough that the worker can reasonably say that they would have preferred to be treated differently”

[224]Taking into account the range of different approaches to manifesting modest dress in Islam (and the inability of the Tribunal to say that there is one ‘correct’ way of doing this), I am satisfied that the PCP in question put or would put Muslim HCAs in the CLTVT at the particular disadvantage of being unable to adhere to the requirements of their Muslim faith. That is the same disadvantage as that suffered by the claimant. It may not be a complete bar to them manifesting their faith but it is making it more difficult for them to manifest the modesty requirement of their faith in a way which they consider (or would consider) meets the requirements of Islam. This particular disadvantage would not be experienced by non-Muslim employees when complying with the requirements of the workwear policy.

[225]The respondent’s submissions addressed whether the PCP could be said to erode the claimant’s Muslim identity and pointed to the fact that the obvious manifestation of faith through clothing was the wearing of the hijab, which the claimant was free to do. Nevertheless, just because the claimant’s Muslim identity is likely to be obvious through wearing of the hijab, this does not mean that the restriction on the wearing of the Muslim dress was of no material significance and did not put her and the group at a particular disadvantage in relation to adhering to the requirements of her faith. The failure to establish one particular disadvantage does not demonstrate the absence of another, different, particular disadvantage.

[226]The central question in the claimant’s indirect discrimination complaint is actually the question of the legitimate aim defence. Two legitimate aims are cited. The second of these is particularly relevant: the requirement to comply with health and safety and infection control regulations. Whilst the infection control aspect of the aims could be addressed by the claimant rolling up her sleeves to be ‘bare below the elbow’ when carrying out clinical procedures (and wearing disposable PPE when appropriate) the wider health and safety issues remained a concern.

[227]Given the nature of the claimant’s job and the locations where it was undertaken, I am satisfied that the claimant needed to be able to react quickly and move quickly, potentially up and down stairs and between furniture and other obstacles. She needed adequate freedom of movement without encumbrance The Islamic dress (even when worn just above the ankles as the claimant suggested) comprised a significant amount of fabric around the wearer’s legs. Indeed, this extra fabric was necessary or desirable to provide the relevant degree of modesty and hide the outline of the legs. I am satisfied that this extra fabric would amount to an impediment to speed and safety of movement. It would be an encumbrance. Whilst it might well be possible to do the job wearing the garment without tripping up or getting caught on equipment/furniture, the dress materially and appreciably increased the risks of the wearer suffering a slip, trip or fall whilst at work. It increases the risk of their clothing becoming caught on furniture or other objects. An accident might not be inevitable, but the dress still presented a significant health and safety risk. As a responsible employer, the respondent needed to balance the health and safety risks of allowing the jilbab against the impact on the claimant’s ability to manifest her faith.

[228]Preventing the claimant from wearing an Islamic dress clearly furthered this legitimate aim. The Tribunal then has to consider proportionality.

[229]It is clearly apparent from the evidence in this case that the respondent did not move directly from identifying the health and safety risk, to telling the claimant that she could not wear the jilbab. The respondent sought advice to check whether alternatives might be considered compliant with the requirements of Islam and to check whether there was one universally accepted version of modest dressing. The respondent repeatedly sought to balance the respondent’s aims against the needs and concerns of the claimant to see if a workable compromise could be found. Hence the claimant was consulted and offered various options. Different options were provided for her to try. Different sizes of garment were ordered in order to make trousers looser fitting. A bespoke solution from the sewing room was considered.

[230]The respondent tried to ‘meet the claimant halfway’ but the claimant maintained her stance that only the Islamic dress was acceptable. In effect, the respondent tried to offer more proportionate solutions by trying to find an alternative garment which would meet the needs of both the claimant and the respondent. The only solution which would satisfy the claimant would be if the respondent essentially gave up on insisting on workwear which carried only an acceptable level of health and safety risk in the workplace (from the respondent’s perspective). I am not persuaded that section 19 of the Equality Act requires the respondent to capitulate in this fashion.

[231]The claimant suggests that her previous line manager had accepted her wearing the jilbab and that she had, in effect, worn it for 2 ½ years without criticism by the respondent. However, the evidence also shows that, whatever the respondent’s previous approach to enforcement of the workwear policy, an incident involving a different employee had triggered a review of its approach. It was entitled, as a reasonable and conscientious employer, to keep the application of its policies under review in light of experience. If an incident occurred which caused the respondent to wonder whether its policies were doing what was required, then it was not precluded from reviewing the position and reinforcing adherence to the policy if this is what experience showed was necessary. The claimant also asserted that Ms Bacon must have seen her wearing the long dress and had not commented on it before the events in question. However, as noted above, the documentary record suggests that it was only when the claimant stood up from behind the desk that the dress was noticed. Furthermore, Ms Bacon did not see the claimant every day that she was at work as the claimant did not have to come into the office at the beginning or end of shifts. So, it is possible that the jilbab went unnoticed prior to the events in question. Even if Ms Bacon can be criticised for not noticing or commenting on the dress before this, her failure to note it did not preclude her from acting on the respondent’s instructions to review and reinforce adherence to uniform requirements. It certainly did not preclude the respondent from taking steps to enforce compliance with its workwear policy in light of its recent experiences with other employees.

[232]In short, I am satisfied that the respondent’s workwear requirements were a proportionate means of achieving its legitimate aim. I am unable to identify a measure which would achieve the aim and which would be a lesser interference with the claimant’s right to manifest her religious beliefs through modest dress. This is particularly so because the claimant was not working on the respondent’s premises. She worked in the service users’ homes and schools. This increased the variables which were outside the respondent’s control. The respondent could not control the work environment so as to reduce the health and safety risks via other means (e.g., removing trip hazards or the requirement to go up and down stairs or ensuring adequate clearance distance around obstacles.) It is also relevant to note that it was important for the respondent to minimize the risk of accidents in the patients’ interests as well as in the best interests of its employees. If an HCA was injured or incapacitated, this might leave the service user without adequate care.

[233]This alone would be sufficient for the respondent to establish a legitimate aim defence to the section 19 claim.

[234]The respondent also relied on the legitimate aim of ‘the requirement to adhere to the Northern Care Alliance Workwear Policy.” The principles underpinning the policy are set out in the policy document and include maintaining a professional image to promote trust and confidence. It is arguable that there comes a point that an individual’s attire departs so markedly from ‘standard uniform’ that it ceases to be recognizable as uniform. It may be matter of debate whether wearing a tunic (often unbuttoned) over the top of a long dress, provides the relevant indication of clinical professionalism or denotes that the wearer is a professional care worker. This legitimate aim may not have been sufficient to justify the indirect discrimination on its own, but it certainly adds to the weight of evidence to establish that the respondent’s actions in this case were a proportionate means of achieving a legitimate aim. The workwear policy also explicitly acknowledges the need to reduce the likelihood of injury to patients and staff, support infection control, convey a professional and efficient image and give confidence to patients, carers and families as well as complying with professional codes of conduct for all staff [683]. In short there is a degree of overlap between the two legitimate aims.

[235]In light of the foregoing, I am satisfied that the respondent has established that its actions were a proportionate means of achieving its legitimate aims. In light of that, the claim of indirect discrimination fails and is dismissed. Unfair constructive dismissal

[236]The matters relied upon by the claimant as amounting to a fundamental breach of contract by the respondent were set out at paragraph 3.2 of the list of issues. I address them in the paragraphs which follow.

[237]It is not in dispute that the respondent required the claimant to adhere to and wear a uniform which was compliant with its workwear policy. However, I am not satisfied that this was a breach of the implied term of mutual trust and confidence. The respondent had reasonable and proper cause for its workwear requirements (as set out in the policy itself), not least health and safety requirements and principles of professionalism and patient trust in the care giver. It was a requirement of the claimant’s clinical role to comply with the policy as she was providing care to vulnerable patients. Furthermore, I have already determined that the application of the workwear policy to the claimant was not, in all the relevant circumstances, discriminatory or in breach of the Equality Act. Consequently, this matter does not assist the claimant in establishing a repudiatory breach of contract for the purposes of the constructive dismissal claim.

[238]The claimant asserts that the respondent sought to force her to return to work in a role which she could not perform because of the uniform issue and the problems this had caused her in the workplace.

[239]As set out above, the uniform issue did not mean that she could not perform her job role. She was offered alternative uniform options to protect modesty and comply with the policy. The respondent went as far as could reasonably be expected in adjusting the workwear requirements to adapt to the claimant’s manifestation of her religion. The indirect discrimination claim has been dismissed for the reasons set out above.

[240]The claimant was not, in fact, forced to return to the role. The claimant was offered the option of seeking redeployment to a role where she felt able to work. She spent only two weeks on the redeployment register before tendering her resignation. The claimant did not wait to see if a suitable alternative job role with the respondent would become available so that she could return to work without the problems of her existing post. The respondent also sought to look for temporary work for the claimant to do in the meantime. The claimant was asking to work from home when she was employed to do care work. It is hardly surprising that no such remote work was found for her. The claimant also expressed that she would find it difficult to trust other people and that there were difficulties in working with others. Again, this put restrictions on the ways that the claimant could come back to work. These restrictions were not imposed by the respondent. The respondent held a number of sickness absence review meetings with the claimant and discussed what further support it could offer the claimant. She was referred to occupational health for further assistance. She was able to access counseling and talking therapies. She was told that she could do a stress risk assessment once suitable work had been identified for her to return to. The claimant was offered mediation as a way to resolve the problems preventing a return to work. She refused that offer of mediation. The respondent also ensured that the claimant’s grievance was addressed appropriately. She was able to take it through the stages and appeal the outcome.

[241]I am not satisfied that the respondent sought to force the claimant to return to work in a role which she could not perform because of the uniform issue and the problems this had caused her in the workplace. The claimant has not established this.

[242]Further, the respondent’s actions in this regard cannot be said to amount to a breach of the implied term of mutual trust and confidence. The respondent acted with reasonable and proper cause to try and resolve the problems to the satisfaction of all and to get the claimant back to work in a way with which she was comfortable.

[243]As set out above, I do not accept that the claimant was harassed in the workplace. This cannot form part of the conduct amounting to a fundamental breach of contract by the respondent.

[244]The claimant says that the respondent failed to operate the redeployment policy in a reasonable way. However, the evidence shows that the redeployment policy was operated in the way that it was designed to operate. The claimant was offered the opportunity to seek redeployment and the process was explained to her. She was not forced to ask for redeployment.

[245]Once the claimant asked for redeployment, she had to be seen by Occupational Health so that any relevant occupational health guidance could be followed by the respondent. The claimant went through the aspirational interview form and had input into the sorts of job she was looking for. The claimant was put on the redeployment register. The redeployment period was due to last twelve weeks. The claimant resigned at the two-week stage. It could be said that she did not wait to see if the redeployment process would bear fruit. She did not give it a fair opportunity to resolve the difficulties that she faced.

[246]Whilst it was possible that the claimant’s employment would be terminated at the end of the redeployment period (twelve weeks) pursuant to the attendance policy, it was made clear to her that the respondent would seek to recommend redeployment rather than termination, if it was possible. There was no imminent prospect of termination at the time the claimant resigned. I find that the respondent acted reasonably and responsibly in explaining the way that the redeployment period would operate in parallel/alongside the attendance management policy. The respondent would have been criticised had it not made clear that it might consider dismissal if a return to work or redeployment had not been achieved within a reasonable timeframe. It was not required to wait forever before deciding that employment had to be terminated. In such circumstances it had to explain the potential outcomes to the claimant so that she was properly informed and not taken by surprise should the worst happen. She had to make a fully informed choice to go on to the redeployment register. This cannot be said to be part of a breach of the implied term of mutual trust and confidence.

[247]The claimant asserted that there was an 11-week delay which disadvantaged her. This is not accepted. If there was a delay in starting the long-term sickness absence process it did not, on the facts of this case, delay the start of the redeployment process. The claimant did not ask for or suggest that she wanted to consider redeployment until the April meeting. If she felt that redeployment could and should have been done earlier, she could have asked for it at the earlier meetings in February and March. She did not. Blame for that cannot reasonably be laid at the respondent’s door.

[248]If delay were the issue, it is unclear why, once the claimant was actually placed on the redeployment register, she did not wait for more than two weeks to see if she could return to work via redeployment. In the circumstances, her resignation was somewhat precipitate. The timing of her resignation is odd on the facts as found. It would tend to suggest that she had decided to seek work elsewhere because she was dissatisfied with the outcome of the grievance in relation to uniform. The operation of the redeployment process is, in that sense, something of a red herring.

[249]Finally, the claimant asserts that the respondent failed to follow the occupational health recommendations. I do not accept that there was a failure to follow the recommendations set out in the report. One recommendation was to work from home. This was explored by the respondent but nothing suitable was available in line with the claimant’s search parameters. Given the care work that the claimant was engaged to perform it is perhaps not surprising that working from home was not a realistic prospect.

[250]Occupational health recommended redeployment. The respondent attempted to do this in line with the recommendation. The claimant did not wait to see if this would work before she resigned.

[251]Mediation was recommended but rejected by the claimant. In any event, mediation would be with those staff that she had previously worked with. Given that the claimant did not want to work in her previous team and decided she could not return to the CLTVT/wanted redeployment, the recommendation of mediation could not be followed up. It was not necessary to mediate between the claimant and individuals that she was no longer going to work with. This does not contribute to a fundamental breach of contract or a breach of the implied term of mutual trust and confidence.

[252]Likewise, a stress risk assessment would have to be done by assessing risk in the role to which the claimant would be returning. As the respondent had been unable to find a job for the claimant to return to, it was not possible to carry out a stress risk assessment before the claimant resigned.

[253]The respondent did not fail to follow occupational health recommendations.

[254]In light of the above, I find that there was no breach of the implied term of mutual trust and confidence and no other repudiatory breach of contract by the respondent. This is the case whether one looks at the events separately or cumulatively. There is nothing on which the claimant can rely to show that she resigned in response to a breach of contract such that she was constructively dismissed. The unfair constructive dismissal claim therefore fails and is dismissed.

[255]For completeness, I state that I would not have concluded that the claimant affirmed the contract/waived the breach by continuing with the grievance procedure or redeployment process. She was waiting to see if an alternative to resignation became available. However, I do find that she did not resign in response to any breach of contract by the respondent. She clearly wanted to wear her Islamic dress at work and so looked for a job where this would not be a problem. Once she found this, she resigned and left the respondent’s organisation.

[256]In light of the above, the claimant’s unfair dismissal claim fails and is dismissed.

[257]Given that none of the claimant’s claims have been successful on their merits, it has not proved necessary to address the issue of limitation in order to decide whether the claims were presented outside the time limit and/or whether it would be just and equitable to extend time to allow the claims to proceed. Approved by: