Miss M Padam v Leicestershire County Council: 2601309/2018
EMPLOYMENT TRIBUNALS
Case No 2601309/2018
Between
Miss M PadamClaimantLeicestershire County CouncilRespondent
Before
Employment Judge P BrittonDate 5 November 2021
JUDGMENT
[1]The claim based upon disability discrimination is dismissed upon withdrawal.[2]As to the remaining claims, directions are hereinafter set out. Introduction and issues[1]The claim (ET1) was presented to the Tribunal on 12 June 2018. Ms Padam had been assisted in its preparation. I detect that this may have been Mr Blakey. The narrative is fully pleaded. The problem is that it does not label in terms of reliance on the Equality Act 2010 provisions engaged or as to why. This obviously needs rectification which I will address by way of an order for further and better particulars to which I shall come.[2]The second point to make is that the Claimant has now resigned the employment and left working for the Respondent on 31 August 2018. She was going to bring a second claim carrying on matters so to speak on from the current pleaded events scenario and including bringing a claim for constructive unfair dismissal. I pointed out relying of course on the authority of Prakash v Wolverhampton City Council EAT 0140/06 that she doesn’t need to do that. She can simply plead an amended claim to bring in the new matters. For the avoidance of doubt I therefore grant that amendment in the sense of the amended pleading for which I make a direction will be accepted as an amendment.[3]As to the scenario, the Claimant who has long experience as a community support worker primarily in Nottinghamshire, joined the Respondent’s employ on 20 June 2016. She was at that stage in the domiciliary review team but pleads that circa 31 July 2017 she was moved to older adults; something she had not worked in Page 1 of 6 for many years. Thereafter she was not provided with an induction, training or support. Into the equation comes that from circa 12 September 2017 she pleads that in particular her Line Manager Sarah Davies (SD) therefore acted unfairly in raising concerns about her performance and which culminated in the meeting on 1 December 2017 at which the Claimant was told she was being placed under the capability management procedure.[4]What the Claimant pleads is that this series of events constituted unlawful discrimination against her and in particular on the grounds of race. As to that issue the Claimant was born in Uganda. The family left because of the troubles created by Idi Amin. First they went to Kenya and then they came to this country many years ago.[5]From the reference to her qualifications etc it is to me obvious that she has full grasp of the English language both spoken and written. What she pleads is that inter alia for SD to inter alia criticise her performance in terms of poor spelling and grammar is unlawful discrimination against her as a person of East African Indian ethnicity but she doesn’t say why. And I have no idea as to the composition of the team within which she worked or the wider net of Respondent employees and as to whether other employees were placed under the capability process for poor performance during the appropriate period and as to what their race/ethnicity might be.[6]Today Mr Blakey has told me that Leicestershire County Council unlike Leicestershire City Council does not have a proportionate ethnic mix, and that the team the Claimant worked in was predominantly white with only 2 non white persons being employed during the period and only it seems on a temporary basis; but this needs to be put in a structured further particularisation.[7]She then pleads victimisation because of events on 1 December 2017. Cross referencing to the response (ET3), the Claimant accused SD and her colleague Andrea Woodford (AW), who was also managing the performance management, of racism because of what was occurring. SD and AW were sufficiently upset that they then raised a complaint to their Line Manager about the Claimant’s behaviour towards them and including that prior to that meeting the Claimant had been heard making derogatory remarks about them to other employees, including that they were racist and that she was going to use a solicitor. The upshot of all of that is that the Head of Service, Jackie Wright, began to investigate the complaints against the Claimant. On 18 December the latter went off sick never to return, certified with work related stress and anxiety. On the 13 April 2018 she raised a grievance about what had occurred, and thus the Respondent was dealing with a complaint and a counter grievance. It appointed Peter Davis of corporate HR to investigate.[8]Inter alia the Claimant pleads that his occupational health reference, which was inter alia focussing on whether the Claimant was fit to participate in the grievance investigation, constitutes a further example of racism/victimisation. As a judicial observation I note that the cited narrative as to what Mr Davis (PD) was asking OH to provide an opinion on appears to meet best practice.[9]I established today that although an occupational health report did eventually get produced, the Claimant was objecting in terms of the circulation list in relation to the Respondent; I gather that consequently the OH report was not published and thus the Respondent never received it. I gather the PD investigation was never completed but that will become clearer in due course.[10]To bring matters up to date, the Claimant having moved to London and married resigned the employment effective 31 August 2017.She is about to embark on new Page 2 of 6 work having recovered to that extent from her anxiety/depression. It may be that this is currently to be on a lower salary.[11]There had been a claim based upon disability discrimination but that has now been withdrawn and therefore it is dismissed.[12]As to the race discrimination based claims, insofar as the Claimant might seek to argue that the treatment of her caused her to become mentally unwell, that of course would be something that the Tribunal could consider in terms of remedy; but of course medical opinion would be needed on the issue if the Claimant succeeds on liability.[13]But the first fundamental of course is that all of this claim needs to be properly particularised. Second there needs to be time allowed for the filing of the amended claim. I factor in that Mr Blakey has only limited time in which to assist the Claimant and of course she is now in London. Thus I am providing a generous period for the provision of the amended claim. The Claimant has yet to provide a schedule of loss and of course that should now occur: I provide a date for that as well.Finally I will provide a time for the reply to the further and better particulars and the amended claim.[14]At present the Respondent makes application that on the pleaded scenario the Tribunal should consider striking out the claim or aspects of it or the ordering of a deposit on the basis that the claims have either:-(a) No reasonable prospect of success or;(b) only little reasonable prospect of success. 13. I can see that there are clear factual conflicts in this case which would normally require findings of fact by the Tribunal at the main hearing scheduled for October 2019, but on the other hand this is an issue that can be reserved until the claims are clearer in terms of particularisation. Therefore I am parking the issue for the time being. 14. Against that background I am making the following orders for directions. ORDERS Made pursuant to the Employment Tribunal Rules 2013[1]The Claimant will supply and serve a schedule of loss upon the Respondent by Friday 30 November 2018.[2]By the same date the Claimant will present to the Tribunal her amended claim to include the period post the first claim and culminating in her departure from the employment.[3]By Friday 9 November 2018 the Respondent will have served its request for further and better particulars, focussing of course on what heads of the Equality Act are engaged and why. The Claimant will reply to that by the same deadline as otherwise provided namely 30 November 2018.[4]The Respondent will then reply to both the amended claim and the further and better particular replies by Friday 18 January 2019. Page 3 of 6 The discovery process[5]The orders I now give replace those previously given:-5.1 By Friday 8 February 2019 by way of first stage discovery the Respondent will have sent to the Claimant a proposed trial bundle index which will be double spaced.5.2 By Friday 22 February 2019 the Claimant will reply thereto, placing at the appropriate space and by way of brief description any additional document to be in the trial bundle. If she has the document she will send a copy with her additions to the trial bundle index. If she doesn’t have the document but believes that the Respondent has it in its custody or control and that it is relevant and necessary to the issues, she will again that plain and that she requires the Respondent to place the document in the trial bundle.5.3 By not later than Friday 22 March 2019, a single bundle of documents is to be agreed. The Respondent shall have the conduct for the preparation of the bundle for the hearing. The bundle is to be bound, indexed and paginated. The bundle should only include the following documents:• the Claim Form, the Response Form, any amendments to the grounds of complaint or response and case management orders if relevant;• documents which will be referred to by a witness;• documents which will be referred to in cross-examination;• other documents to which the tribunal’s attention will be specifically drawn or which they will be asked to take into consideration. In preparing the bundle the following rules must be observed:• unless there is good reason to do so (e.g. there are different versions of one document in existence and the difference is material to the case or authenticity is disputed) only one copy of each document (including documents in email streams) is to be included in the bundle• the documents in the bundle must follow a logical sequence which should normally either be simple chronological order or chronological order within a number of defined themes e.g. medical reports, grievances etc• correspondence between the Tribunal and the parties, notices of hearing, location maps for the Tribunal and other documents which do not form part of either parties’ case should never be included. Unless an Employment Judge has ordered otherwise, bundles of documents should not be sent to the tribunal in advance of the hearing. Witness statements[6]By not later than Friday 19 April 2019, the parties shall mutually exchange the witness statements of all witnesses on whom they intend to rely on. The witness statements are to be cross-referenced to the bundle and will be the witness’s main evidence. The Tribunal will not normally listen to witnesses or evidence not included in the exchanged statements. The Claimant’s witness statement must include an updated statement of the amount of compensation or damages she is claiming, Page 4 of 6 together with an explanation of how it has been calculated. Witness statements should not routinely include a précis of any document which the Tribunal is to be asked to read. Witnesses may of course refer in their witness statements to passages from the documents which are of particular importance, or to the inferences which they drew from those passages, or to the conclusions that they wish the Tribunal to draw from the document as a whole.[8]Caveat: The Claimant may wish to call reluctant witnesses who may not want to provide witness statements. Obviously if that be the case, the exchange order cannot cover them. The issue of those witnesses can be discussed at the Preliminary Hearing which I am ordering. 7. There will then be an attended Preliminary Hearing at Leicester on Thursday 16 May 2019, starting at 10:00 am currently with a one day time estimate. The provisional agenda will be:-7.1 To discuss the pleadings as they then are.7.2 Deal with any applications that the Respondent may have made and for that matter if there are any, any counter applications.7.3 To discuss the current time estimate and the issue of whether there are witnesses that the Claimant’s wants to call but who are unwilling to attend without for instance a witness summons.7.4 To consider whether any extra days need to be added to the already listed three day hearing before a full Tribunal between 7 and 9 October 2019 at Leicester and whether there needs to be provision for such as reading in. 8. The Claimant has moved to London. It is essential that she immediately informs this Tribunal of the address to which henceforth service upon her by the Tribunal and indeed the Respondent is to be made. Judicial Mediation 90. I raised this with the parties. They must inform the Tribunal as soon as possible if they are both willing to enter into the process. I would only observe that although there may be conflicts in this case, given the Claimant has left the employment and is now living in London and with a new job, that this appears suitable for Judicial Mediation. NOTES(i) The above Order has been fully explained to the parties and all compliance dates stand even if this written record of the Order is not received until after compliance dates have passed.(ii) Failure to comply with an order for disclosure may result on summary conviction in a fine of up to £1,000 being imposed upon a person in default under s.7(4) of the Employment Tribunals Act 1996. Page 5 of 6(iii) The Tribunal may also make a further order (an “unless order”) providing that unless it is complied with, the claim or, as the case may be, the response shall be struck out on the date of non-compliance without further consideration of the proceedings or the need to give notice or hold a preliminary hearing or a hearing.(iv) An order may be varied or revoked upon application by a person affected by the order or by a judge on his/her own initiative. Any further applications should be made on receipt of this Order or as soon as possible. The attention of the parties is drawn to the Presidential Guidance on ‘General Case Management’: https://www.judiciary.gov.uk/wp-content/uploads/2013/08/presidential- guidance-general-case-management-20170406-3.2.pdf(v) The parties are reminded of rule 92: “Where a party sends a communication to the Tribunal (except an application under rule 32) it shall send a copy to all other parties, and state that it has done so (by use of “cc” or otherwise). The Tribunal may order a departure from this rule where it considers it in the interests of justice to do so.” If, when writing to the tribunal, the parties do not comply with this rule, the tribunal may decide not to consider what they have written.[1]The respondent’s application that the claimant’s claims be struck out because they have no reasonable prospect of success is dismissed;[2]The respondent’s alternative application that the claimant should pay deposit(s) as a condition of pursuing her allegations that she was directly discriminated against because of her race, that she was harassed because of her race, that she was victimised and/or that she was constructively unfairly dismissed succeeds. The exact allegations in respect of which the Tribunal orders deposits and the amounts of the deposits and the date by when they must be paid are set out in the separate “Deposit Order”.[3]The Tribunal makes further case management directions of its own motion which are sent under separate cover. Page 1 of 23
REASONS
Conclusions
[1]On 12 June 2018 Ms Panesar presented her claim to the Employment Tribunal. Following a number of hearings and amendments the claim is now identified in a document entitled “Appendix to respondent’s application: agreed list of allegations” (“the appendix”).[2]This document was prepared by the respondent’s counsel on 7 May 2019 and amended on 16 May 2019 to remove a few of the allegations which Ms Panesar was no longer pursuing, or which were identified in error.[3]The allegations fall into the following categories: harassment because of race, direct discrimination because of race and victimisation.[4]There is also an allegation of constructive unfair dismissal which relies on the allegations of harassment, discrimination and victimisation and an allegation that the respondent failed to apply the public-sector equality duty (Equality Act 2010 section 149) when it rearranged the work stream in which Ms Panesar worked resulting in her move to the older adult team, in which Ms Panesar alleges the issues arose.[5]The allegations that the Tribunal will be asked to consider at the final hearing are summarised below. The number in the left-hand column refers to the number of the allegation in the appendix. The missing numbers reflect those allegations that are not being pursued. Cause of action Details of incident relied on On 12 September 2017, Sarah Davis told Ms Panesar in a hostile manner and without eye contact that her spelling and grammar were Harassment and 2 terrible, and they did not make sense. She also direct told Ms Panesar that Ms Panesar did not know discrimination what the role of a community support worker was. Harassment and On 12 September 2017, the respondent 3 direct refused Ms Panesar’s request for mentor. discrimination From 12 September 2017 to 25 October 2017 Ms Davis put her hands up to Ms Panesar Harassment and when Ms Panesar asked for guidance. The 4 direct respondent failed to offer mentoring, adequate discrimination guidance, support or advice or retraining until 25 October 2017. On 29 September 2017 Ms Davis threatened to Harassment and 5 use the formal capability procedure against Ms direct Panesar. discrimination Page 2 of 23 After 29 September 2017 and 23 October 2017 Harassment and 6 meetings, Ms Davis made inaccurate and direct misleading notes. discrimination Harassment and On 16 October 2017 Ms Davis instigated the 7 direct capability procedure. discrimination Harassment and On 23 October 2017 Ms Davis refused Ms 8 direct Panesar’s request for a mentor. discrimination Harassment and From 6 November 2017 Ms Davis ignored Ms 9 direct Panesar when she came into the office. discrimination Harassment and From 6 November 2017 Ms Davis instigated a 10 direct capability procedure. discrimination At the second capability meeting on 20 November 2017, Ms Davis refused Ms Panesar’s request for mentor, made Harassment and 11 allegations about the past, suggested that direct survey results were adverse to Ms Panesar, discrimination and placed Ms Panesar on a formal capability procedure. On the 1 December 2017 Ms Davis raised her Harassment and voice to Ms Panesar and complained about Ms 12 direct Panesar discussing her concerns with discrimination colleagues. On 1 December 2017 Ms Davis and Ms Woodier became angry, and Ms Woodier threatened to complain about Ms Panesar’s[13]Victimisation conduct after Ms Panesar told Ms Davis she wanted to make a complaint of racism by Ms Davis (the protected act) On 15 January 2018 Ms Davis telephone claimant and spoke to her in an abrupt bullying[14]Harassment and harassing way asking a number of questions set out in the appendix On 18 May 2018 Peter Davis refused Ms
The Law
[16]Panesar’s request not to have to deal with Ms Victimisation Woodier. Page 3 of 23 On 18 May 2018 Mr Davis said in an occupational health referral that there are issues that he will “have to pick up” with Ms[17]Panesar; the impact on Ms Panesar’s health; Victimisation and emitting from the occupational health referral that her ill-health was caused by the respondent’s racism. 6. The respondent denies these allegations. 7. On 7 May 2019, the respondent made an application for a deposit order. This was in respect of the allegations of harassment, direct discrimination and constructive unfair dismissal. The application referred to neither victimisation nor to the alleged breach of the public-sector equality duty. However, the respondent has indicated it sought a deposit in respect of those allegations too. 8. The respondent also suggested that the claims could be struck out because they disclosed no reasonable prospect of success. 9. Ms Panesar has agreed to deal with the alleged breach of the public-sector equality duty allegation and the victimisation matters too. Ms Panesar also agreed to deal with the suggestion that the claims have no reasonable prospect of success. I agreed to deal with them too. The tests are similar and the material I would be asked to consider would be the same. 10. The respondent had also made applications to strike out Ms Panesar’s case for other reasons, but the respondent withdrew those applications, so I say no more about them. 11. In very simple terms the respondent says that when one looks at the documents, any suggestion that there was discrimination or harassment because of race, victimisation or a constructive unfair dismissal has an absence of reality and can be struck out or a deposit ordered 12. Ms Panesar says that the documents show only part of the story, oral evidence is necessary to understand the whole picture. A strike out is therefore not proper because I cannot safely conclude that the claims have little reasonable prospect of success. 13. A combination of case management issues and the Covid-19 pandemic have resulted in significant delay in this application being heard. 14. The final hearing is listed for 10 days commencing on 17 May 2021. Given the length of that hearing it seemed to me that, if the grounds are making a deposit order were made out, there would be benefits to making them because it might save a significant amount of Tribunal time if Ms Panesar chose not to proceed with some or all of the allegations, and Ms Panesar would in any case have sufficient time to prepare for the hearing and to pay any deposit so ordered. Neither party suggested that the proximity of the final hearing meant that I should not consider the respondent’s applications. Hearing 15. The hearing was listed for one day. The hearing was a hybrid hearing: Ms Panesar attended by video link and everyone else attended in person. Page 4 of 23 Though Ms Panesar’s connection failed a few times, she was able to reconnect. I am satisfied that nothing impacted adversely on this being a fair hearing. 16. Mr Blakey, solicitor, represented Ms Panesar. Ms Owen, Counsel, represented the respondent. I am grateful to both for their help. Each made submissions and I have taken them into account. 17. I heard oral evidence from Ms Panesar only on the issue of means. I have taken that into account too.[18]The Tribunal had previously ordered that the bundle for the final hearing be used for the purposes of the deposit hearing. Therefore, I had the final hearing bundle which runs to over 1600 pages, and a supplemental bundle prepared by Ms Panesar of about 83 pages. I have only considered those documents to which my attention was drawn during the hearing.[19]Because of the size of the bundle, the number of allegations made and the technical difficulties there was insufficient time for me to deliver an oral judgment in respect of Ms Panesar’s application.[20]I therefore reserved judgment. This is that judgment. The parties agreed that, if the claim were not struck out in its entirety, then I should make directions of my own motion to prepare for the final hearing. Issues[21]The issue for me to determine as follows: 21.1. In respect of each ground of complaint, 21.1.1. Has the respondent shown that Ms Panesar has no reasonable prospect of success? 21.1.2. If so, should I strike out that complaint? 21.2. Alternatively, in respect of each allegation, 21.2.1. Has the respondent shown that the allegation has little reasonable prospect of success? 21.2.2. If so, should I order to pay a deposit as a condition of pursuing the allegation? 21.2.3. If so, how much of that deposit be? Findings of fact The facts so far as relevant to this application and based only on the documents and submissions of the parties[22]I now set out my findings of fact so far as they are relevant to this application.[23]I make it clear that I have not heard oral evidence on the issues from either party, and therefore these facts are based purely on what the documents show and on the submissions each party has made. Clearly, it is at best incomplete, therefore. Page 5 of 23[24]It will be for the Tribunal at the final hearing to determine what has actually happened, and the facts that I set out in this judgment will therefore not be binding on that Tribunal.[25]For the purposes of this claim, Ms Panesar identifies her race is “Kenyan Asian”.[26]The respondent has employed Ms Panesar as a community support worker in a domiciliary team since 20 June 2016. In 2017 the respondent decided to reorganise its teams. Ms Panesar expressed an interest therefore in transferring to the older adult team. That expression succeeded. In the summer of 2017, Ms Panesar was transferred from the domiciliary team to the older adult team. After her transfer Andrea Woodier was her line manager until about September 2017. Afterwards it was Sarah Davis was her line manager. It is not clear, but it seems that there had been a period of previous employment with the respondent, but that was discontinuous with the period of employment therefore the subject matter of this claim. Between that employment and this, she was employed by Nottinghamshire County Council.[27]However, there are some documents available that show some details about Ms Panesar’s performance during that period.[28]For example, a reference request written by her line manager when she last worked for the respondent from December 2012 until April 2014 reported “prompts are occasionally required to pay attention to defects particularly when completing assessments, which will be read by the service user. Spelling is occasionally an issue.”[29]Similarly, another referee who had previously worked with Ms Panesar at last employment with Nottinghamshire County Council noted that “[Ms Panesar] was employed as a community care officer however had not been undertaking these duties for approximately 18 months. At the point of leaving NCC [Ms Panesar] was completing duties associated with a business support role. “… “at the time of leaving [Ms Panesar] was not working in the role for which he had been employed in formal performance monitoring have been initiated. “… “[Ms Panesar] has not been performing the tasks expected of her role for some time and was at the time of submitting her resignation subject performance monitoring procedures.”[30]There are a number of documents created from the start of her employment in the run-up to the first alleged act of discrimination or harassment. These all appear to show that her line manager was gently introducing Ms Panesar to her new work.[31]The documents suggest that similar issues relating to Ms Panesar’s performance in her index period of employment but before the alleged acts Page 6 of 23 of discrimination or harassment or victimisation. For example, in a meeting on 19 April 2017, notes confirm that the following conversation took place, say “discussed assessments, regarding inconsistencies around grammar and RIS not being accurate, to ensure that assessments have been read through “Case notifications need to be acknowledged – [Ms Panesar] to ask IAS floorwalker.”[32]On 4 May 2017 Ms Panesar’s line manager emailed her to say that she had asked a fellow employee to mentor and support her and that this employee had agreed. On the same day but in a separate email Ms Panesar’s line manager expressed particular concerns about delays in Ms Panesar making her case recordings and the consequent time lapses.[33]On 13 June 2017 notes of a meeting between Ms Panesar and her line manager record as follows “[Ms Panesar’s line manager] advised that she has concerns about [Ms Panesar’s] work and the level of inactivity and discuss that we would be working on an informal plan to support [Ms Panesar] to get focused and on track. “… “Advised (Ms Panesar) that practices of the concern in high-risk, advised that this will if this is not sorted there is a potential to lead to formal capability - however we will try and sort together with support when needed.”[34]A casework review dated 13 June 2013 (but given its contents must be 2017) also noted that Ms Panesar was failing to update the case notes in the legal timeframe for doing so. Similarly, on 6 July 2017 Ms Panesar’s then line manager emphasises to her the importance of legalities and defensible decision-making in relation to case notes being added in a timely manner. She went on to advise this had been discussed now on more than one occasion and therefore needed to look at formal procedures if this were not rectified.[35]An email on 6 July 2017 from Ms Panesar’s line manager and Ms Panesar records as follows “This assessment remains incorrect-you have stated in the assessment that he is unsafe around the house but in the RAS you state there are no needs. “I have an email whereby I have advised that you carry out a home visit, but in the assessment refer to a phone review. “Again the case notes have not been updated to state what happened on the visit. “You really do need to take care when submitting these assessments and plans as it appears to look like you are not thinking things through. I am rejecting the assessment again for you to complete accurately and please verify if this was a telephone review or a home visit.” Page 7 of 23[36]I have noted the reorganisation and Ms Panesar’s expression of interest in a new role with the older adults’ team.[37]In her expression of interest, she explained that she had the qualifications of writing assessments, dealing with data protection, assessing capacity and making best interest decisions, and had assessment training during her previous employment with Nottinghamshire County Council.[38]She said that she had read a number of assessments from community support workers and social workers and helped her develop her own assessments of need she said “I feel I am competent and able to assess an individual situation, the home and also able to translate this assessment into a document on our IAS Logic system.”
Findings of Fact
[39]She also said “I have experience of commissioning services for older people and their carers, which includes home care, residential and nursing care placements and direct payments.”[40]In submissions Ms Panesar suggested that the transfer was against her wishes and was forced upon her. The expression of interest form is a significant and lengthy document, signed by Ms Panesar on 3 May 2017, and clearly took a significant amount of time to complete. The documents show no suggestion that the move was against her will or that she did not consent to it.[41]Ms Panesar transferred to the older adult team on 1 August 2017. Ms Woodier became her line manager.
Conclusions
[43]There was a meeting on 2 August 2017 between them. There are notes of that meeting in the bundle. I note that Ms Panesar has not signed those notes of the meeting. The notes record as follows “[Ms Panesar] is anxious about the cases she recently completed with review, Ms Woodier offered to sit with her and review the cases should her previous manager raise any further concerns. “Ms Woodier asked if there is any particular support and training [claimant] feels she needs in addition to the skills, knowledge and experience she has gained in the review team.”[44]In the meeting Ms Panesar disclosed she had no experience of completing mental capacity assessments. She was referred to the training and advised to send an email out to her colleagues so she could observe visits where mental capacity assessments were being undertaken.[45]The notes also recorded that Ms Panesar was told to identify any unfamiliar areas to discuss those with Ms Woodier.[46]Finally, Ms Panesar said that she was unsure what was needed in respect of a self-funding residential care case that she had to deal with. The notes disclose that Ms Woodier went on to give her advice about that.[47]On 29 August 2017 Ms Woodier emailed Ms Panesar and asked her to print off the assessments so they can go through them together and she can Page 8 of 23 “help and guide you :-)”.[48]On 30 August 2017 Ms Woodier recorded that she had told Ms Panesar that she felt Ms Panesar needed support with her assessment as they were not of the expected and acceptable standard.[49]The chronology has now reached the point at which Ms Panesar says that the respondent subjected her to direct discrimination or harassment. I turn therefore to each allegation and what the documents surrounding that allegation appear to show.[50]Allegation 2 relate to events 12 September 2017. There are notes of a oneto-one meeting between her and Ms Davis on this date. The notes are signed by Ms Panesar without Ms Panesar having made any amendment to them.[51]The notes show that Ms Davis continued to encourage Ms Panesar to undertake shadowing and emphasised that it is important that she had shadowing opportunities.[52]Ms Davis also went through Ms Panesar’s assessments that needed amending. The wording suggests that it was more than two assessments but the only two were actually reviewed in the meeting. Ms Davis provided Ms Panesar with 4 examples of assessments completed by members of the team to enable Ms Panesar to create her own template. They talked about the information that was important to gather on the assessments and additional information made assessment quite tricky to read and was often unnecessary. The notes also say “[Ms Panesar] feels she has settled into the team very well, she is aware that everyone is busy and sometimes does not like some other people. I said that [Ms Panesar] can come and ask me or [Ms Woodier] questions if she’s not sure or email us if we are not around.” Allegation 3 also relates to the same meeting.[54]She says that the respondent refused her a mentor. However, the notes of the meeting provide no evidence of Ms Panesar requested a mentor.[55]However, it is quite apparent that she was offered support and guidance. Ms Panesar says that other members of staff were assigned mentors. Notes from the investigation into Ms Panesar’s grievance confirms that it is true that mentors were assigned to 2 members of staff but not of a third member of staff. During the course of the grievance Ms Woodier explained that they would not normally give a mentor to someone with Ms Panesar’s experience. In any case Ms Woodier had told her that she got the support of the team and she could ask anyone for help.[56]In relation to the 2 members of staff who did have a mentor, the investigation showed they were both new to that type of work.[57]In relation to the member of staff who did not have a mentor she, like Ms Panesar, had already got previous relevant experience. It is important to remember that Ms Panesar’s own expression of interest suggested she had previous relevant experience. It seems therefore that this third member of Page 9 of 23 staff and Ms Panesar are in the same material situation and were treated the same.[58]The documents disclose no link between what happened and her race.[59]Allegation 4 relates to a period between 12 September and 25 October 2017 when Ms Panesar says Ms Davis refused to mentor her or provide any training or support. I have referred to notes from the meeting of the 12 September 2017 between Ms Davis and Ms Panesar. Those notes do not appear to support what Ms Panesar says. Furthermore, on 20 September 2017 Ms Davis emailed Ms Panesar as follows “I have printed the first section of the assessment and made notes (put in your office draw) – the layout is great however there are a lot of spelling and grammar errors and some parts don’t seem to make sense. (I haven’t looked at the rest of the assessments please can you recheck it all before sending it back through to me) I thought we agreed in supervision you would send one at a time through?”[60]Whilst the email clearly points to a number of difficulties, the positive reference to the layout clearly intended to provide her with encouragement.[61]On the 21 September 2017 Ms Panesar brought into work some samosas and cake and informed her colleagues that they should help themselves. Ms Davis replied “lovely, thanks …”.[62]This email appears to contradict entirely what Ms Panesar says was the atmosphere in the office.[63]On 25 September 2017 Ms Davis emailed Ms Panesar as follows “how you getting on with your assessments-if you have amended the carers assessment we discussed do send it back to me today, I am off the have a chance to look at it, let’s arrange supervision for Friday this week.”[64]From far from suggesting a hostile approach to Ms Panesar it seems to me this email suggest that Ms Davis is genuinely trying to provide some support.[65]On 25 September 2017 Ms Woodier emailed her colleagues about Ms Panesar. She noted that Ms Panesar had been subject of racial discrimination was working with another local authority and was anxious about a current position. She said she had taken HR advice to ensure that the respondent proceeded in a supportive way. In the email she expressed concern that Ms Panesar to be moved to a more fast-paced and intensive team where “she simply can’t cope with the role and its demands”.[66]There is nothing in the documents that suggests her race played any material part in what happened. The only reference to race is in the email of 25 September 2017. However, the context shows that, far from seeing it as nuisance, there was a recognition of the impact of previous discrimination and a need to provide support. Page 10 of 23[67]On 29 September 2019 Ms Woodier noted that Ms Davis had picked up supervision with Ms Panesar and that as of that date they were starting informal capability proceedings.[68]In allegation 5, Ms Panesar alleges that she was threatened with a formal capability procedure on 29 September 2017 by Ms Davis. There are notes of that meeting which Ms Panesar signed and does not appear to have corrected. These notes record as follows “I said to [Ms Panesar] that we wanted to support her to work at the level of the other CSW’s in our team and that this is why we have given the time to offer regular support/supervision and guidance. I informed [her] that me and [Ms Woodier] had discussed her performance over the last 8 weeks and we were concerned that she was not working at the level expected of someone who had already worked in review for 1.5 years, I told [Ms Panesar] that we expected her to come to the team and hit the ground running and because she had not told us she was struggling all that there were elements of the job that she had not done before we expected to be more competent than she has proved to be. “… “I said that we want to support whatever way we can and both I and Ms Woodier have talked through her workload with her along with the team which are more than happy to do. I said to [Ms Panesar] that she must ask for help when she needs it rather than doing nothing as she will not manage her cases appropriately,…”[69]There are also emails in the bundle that confirm that Ms Panesar had training booked for her.[70]Having seen the documents showing Ms Panesar’s performance up until this point in having seen what was discussed in the meeting it is difficult to see how the suggestion of the formal capability procedure could be anything other than a reasonable response. Certainly, there is nothing in the documents that connects it to her race.[71]Allegation 6 is that the notes on 29 September 2017 and 23 October 2017 were inaccurate. In due course she signed those notes. Even now there is no detail as to what way they are inaccurate. When she presented her grievance later, she alleged they were wrong, but she did not set out what was wrong with them. There is little evidence that they are inaccurate based of the documents that she signed and even less evidence that any error is connected to her race.[72]In allegation 7 Ms Panesar complains about the instigation of the capability process on 16 October 2017 by Ms Davis.[73]This was instigated in an email of that date from Ms Davis to Ms Panesar. The following points stand out 73.1. one of Ms Panesar’s assessments of a service user was rejected because she had not used the heading templates that they had discussed previously. Ms Davis noted that this had been sent back to her now three times. Page 11 of 23 73.2. One of the assessments was rejected because it had no headings at all in it and that she had failed to follow the template that she had been emailed and had printed for her as guidance. 73.3. One assessment was rejected for the third time because Ms Panesar had decided to use headings different from those which she should have used. 73.4. One assessment was rejected because it contained no headings and at all.[74]Ms Davis then wrote “it’s really important to be consistent in your assessments as this where you will ensure that you include the right information. “The expectation of every community support worker in the team is that they will take three new cases per week, as you been unable to progress the cases you currently have appropriately, we feel unable to allocate any further work to you at this time. “We would now like you to keep a diary of what work/tasks you are undertaking on a daily basis, this way both myself and Ms Woodier can see what you are working on and if there are any areas that you need further support. Is there any further training you think you need in order to carry out the CSW role? Please can you confirm that you are attending the IIS training as I have rebooked you onto. “… “As part of supervision myself and Ms Woodier would like to meet with you next week to look at evoking the informal capability procedure. I’ve attached a copy of the employee capability guidance.… “We will look at examples of your work and give you the opportunity to explain the reasons as to why there is a shortfall along with giving your views expressed are why your work is not met the required standard. We will look at the improvements which need to be made and this may include specific targets. We will discuss what support is available to you such as development activities, work shadowing and mentoring. If there are any other factors which are impacting for example personal/domestic issues you have the opportunity to discuss them and we can look at ways the organisation can support you.”[75]Shortly after this meeting Ms Davis booked Ms Panesar onto a training course entitled “Moving and Handling for People with Dementia”.[76]Based on the documents alone and the history they disclose up until this point it is difficult to see that it was improper to consider instigating the capability process. The documents show support, a conscious decision not to burden a struggling employee with more work and a continued provision of training. It is difficult to see any evidence that it was this driven by race.[77]In allegation 8 Ms Panesar alleges that Ms Davis refused her request for a mentor on 23 October 2017. There are notes of that meeting in which the following exchanges recorded Page 12 of 23 “Sarah asked [claimant] if there was anything we could do to support her further [Ms Panesar] said there was not.”[78]The notes appear to have been signed by Ms Panesar on 31 October 2017. Therefore, based on the documents it appears that not only did the respondent raised the possibility of support, but Ms Panesar declined it. The notes suggest that Ms Panesar had the opportunity to request a mentor but did not take it. In any case a note written by Ms Woodier on about 20 October 2017 suggest that she had arranged one-to-one support between Ms Panesar and another member of staff and had emphasised to her that the whole team would support when asked.[79]Allegation 9 is that after 6 November 2017 Ms Davis ignored Ms Panesar when she came into the office.[80]There was an informal capability meeting on that day between Ms Panesar and Ms Davis.[81]Surely before that meeting on 2 November 2017 Ms Davis and Ms Panesar had an email exchange. In summary this email exchange showed that Ms Panesar had incorrectly completed the records of one of the respondent service users.[82]The respondent made notes of the meeting on 6 November 2017. Ms Panesar signed those notes as being accurate. The minutes of the meeting show that Ms Davis went through the improvement plan with Ms Panesar and each section looking at the areas of concern, what needed to be achieved, how it would be achieved, and who was responsible for doing that with the associated timescales. In particular the following exchanges appear to have taken place “I talked about [Ms Panesar] becoming upset this morning [she] said that she did not understand an email I had sent her last week about transfer summaries, I said the email explaining what I wanted her to do and that having it on email was good for her to look back and see what exactly I had said. [Ms Panesar] said that she understood now. I said to [her] that I was aware she had gone to a colleague following receive an email and discussed how she was unhappy with the way I was managing her, this isn’t appropriate or professional for her to discuss me your Ms Woodier with colleagues and it also puts colleagues a difficult situation. I said to [her] if she feels this way she should have spoken with Ms Woodier or [our] manager. Seeking support from colleagues is important but knowing what is appropriate to discuss with them and what isn’t it equally as important. “I asked [Ms Panesar] if there [is] anything else we can do to support you or guide you to enable you to improve your performance. [Ms Panesar] said that she would “shout up” if you need anything.… “I have advised that [Ms Panesar] contact the well-being service and have emailed her the contact information.”[83]The documents do not suggest anything improper occurred. There is no evidence from which one can connect events to her race.[84]Allegation 10 is that Ms Davis instigated a capability procedure on 6 November 2017. Whether or not the procedure was instigated on 6 Page 13 of 23 November 2017, there was certainly an informal capability meeting. I have set details out about this above. The notes that meeting record specifically that Ms Panesar still had issues with recording case notes in a timely manner, undertaking visits without making case notes saying there will be a visit, being unable to meet the allocation of three cases per week which was expected of her, not completing assessments in agreed timescales, having to have assessments returned to her because they missed important information, having 2 cases returned to her because they did not have complete transfer summaries, having a support plan returned because it was missing relevant information, and failing to provide an update in relation to a case on one occasion. As I noted above Ms Panesar signed these notes as being correct.[85]The documents suggest capability is clearly an issue and that the respondent’s actions appear reasonable. There is no documentary evidence that suggests race played any part in what happened.[86]Allegation 11 is that at the second capability meeting on 20 November 2017, Sarah Davis refuse Ms Panesar’s request for mentor, made allegations about the past, suggested that “survey results were adverse to [Ms Panesar]” [sic.], and placed Ms Panesar on a formal capability procedure.[87]There are notes of a meeting on 20 November 2017. At these notes are not signed by Ms Panesar as being accurate though they were sent to her on 22 November 2017 by email. Ms Panesar did not come back to the respondent to suggest there is any issue with the notes.[88]The notes disclose that there was a discussion about Ms Panesar needing a lumbar support and that Ms Davis would order one for her.[89]More significantly there was a discussion on which Ms Davis said that Ms Panesar appear to be struggling with many of the same issues that she had had in her previous employment such as progression of cases, recording details in a timely or appropriate manner, not completing assessments within set timescales, with missing out information and using poor grammar and spelling, amongst other things. There is also a discussion about whether or not there is going to be a formal capability procedure. In that part of the discussion Ms Panesar said “I feel like you want to push me out” and that she did not know that a formal process would begin at the meeting that day.[90]The notes also record the following “[Ms Panesar] said that when she started we knew that she didn’t have experience in respite, I advised that DG (CSW) had spent time with [Ms Panesar] going through the respite process on a 1:1 basis on the only case [Ms Panesar] and had way respite was required, [Ms Panesar] said that ‘DG went through it too quick and she didn’t get a chance to make notes’ I said ‘I would arrange for a worker to go through respite again with her as I was aware she had a case again that she was working on’.” Page 14 of 23[91]The notes from 29 November 2017 report that a member of staff had overheard Ms Panesar saying that she was engaging a solicitor and she had never been happy to work for the respondent.[92]On 29 November 2017 Ms Woodier expressed in an email the view that “we should address this latest behaviour as it is disruptive and not in the supportive honest and fair culture we have in our team”.[93]On 1 December 2017, a member of staff reported that Ms Panesar was making “unfair claims of racial discrimination against myself and [Ms Davis] to members of the team, he also stated that Anne just confided concerns around Ms Panesar’s mental health and that Ms Panesar states the team are discriminating against her and that she was possibly having conversations with vulnerable service users along these lines.”[94]The documents suggest that other members of staff reported similar things.[95]It is obvious that no one employed in Ms Panesar’s position should have conversations about issues in their workplace with vulnerable service users. Whether it is true or not is not relevant for me to determine. However, it clearly would be something of concern to any employer in the respondent’s situation since it could at best lead to reputational damage or, at worst, lead to harm to the individual vulnerable service user unable to cope with the comments being made.[96]There is nothing to suggest that these allegations were made in bad faith. There is nothing to suggest the Council’s response was anything other than proper. There is nothing to suggest the claimant’s race itself played any part in what happened.[97]Allegation 12 is that on the 1 December 2017 Ms Davis raised her voice to Ms Panesar and complained about Ms Panesar discussing her concerns with colleagues. This can be taken with allegation 13, that on 1 December 2017 Ms Davis and Ms Woodier became angry, and Ms Woodier threatened to complain about Ms Panesar’s conduct after Ms Panesar told Ms Davis she wanted to make a complaint of racism (the protected act).[98]The documents show a meeting had taken place that day between Ms Davis, Ms Woodier and Ms Panesar. The notes are set out in an email of 3 December 2017 which it appears was not sent to Ms Panesar. At the meeting it appears that Ms Panesar said she was going to put in a grievance against both Ms Davis and Ms Woodier. The notes also suggest that Ms Woodier asked Ms Panesar expressly “what can we do that we are not already doing to support you? The team work very hard as do me and [Ms Davis] and it is very disappointing that unless we know what the problems are we cannot address them. We would do anything to help and support any team member and I’ve worked hard to build a team culture which is based on trust and mutual respect and you could not have come to a more supportive team and I’m not prepared to let this change as a result of your disappointing behaviour.” Page 15 of 23 This suggestion of support is strikingly similar to previous offers of support. What is said by Ms Woodier also appears to be backed up by the many documents that precede this meeting. There is nothing in the documents that suggest any evidential link to Ms Panesar’s race.[99]However, the meeting notes also show that Ms Panesar did not say on what grounds she was going to raise a grievance. There appears to have been no mention of discrimination or harassment of any kind at the meeting. There is nothing in the documents that provide an evidential link between an allegation of discrimination or harassment and what happened.[100]In allegation 14, Ms Panesar says that on 15 January 2018 Ms Davis telephoned Ms Panesar and spoke to her in an abrupt bullying and harassing way asking a number of questions.[101]There is no document of any meeting or discussion 14 January 2018, but there is an email from 15 January 2018 written by Ms Davis. In that email Ms Davis recalls that she had phoned Ms Panesar that morning.[102]In the conversation Ms Davis recorded that Ms Panesar had said that the respondent would “be hearing from a solicitor”.[103]Ms Davis had noted that a service user had reported to the respondent that he had been told by Ms Panesar that she was leaving the respondent’s employment and would not be visiting again. In reply to that Ms Panesar said that she would neither admit nor deny anything.[104]The tenor of the email accords with the previous documents and suggestions from the start of December that Ms Panesar was already considering legal action. However, the discussion proceeded, there is nothing in the documents that provides any link to Ms Panesar’s race.[105]In allegation 16 Ms Panesar alleges that on 18 May 2018 Peter Davis refused Ms Panesar’s request not to have to deal with Ms Woodier. Furthermore, in allegations 17 Ms Panesar alleges that on 18 May 2018 Mr Davis subjected her to the following detriments because of a protected act 105.1. He said in relation to an occupational health referral that there are issues that he will “have to pick up” with Ms Panesar; 105.2. The impact on Ms Panesar’s health; and 105.3. Omitting from the occupational health referral that her ill-health was caused by the respondent’s racism.[106]Mr Davis wrote a letter to Ms Panesar on 18 May 2018. It is correct that he refused Ms Panesar’s request not to have to deal with Ms Woodier. He refused it because Ms Panesar had not before expressed concerns or issues with Ms Woodier and he believed that she was in the best position to support her and to manage the HR processes. There is nothing in the documentary evidence that suggests that this decision was in anyway motivated by the fact that Ms Panesar had made allegations of discrimination or harassment. Page 16 of 23[107]As the occupational health report, it is agreed that he said there are issues he would have to pick up with Ms Panesar. For my part I struggle to see how that amounts to a detriment. As for the impacts on her health, there is at the moment no evidence of ill health, or that it was caused by the respondent. Assuming there is ill health and that, somehow, it can be shown the respondent caused it, there is nothing that suggests it caused it because she had done a protected act.[108]It is correct that he omitted any reference to “ill-health being caused by the respondent’s racism”. I struggle to see how this is a detriment in any case. There is no evidence that suggests that he omitted it because she had complained about racism. Ms Panesar’s means[109]Ms Panesar has savings of £9,000. She has no stocks or shares. She has a flat which she estimates is worth approximately £160,000. There is a mortgage on the property. Although she does not know the outstanding balance, should be surprised if the mortgage were greater than or equal to the flat’s value. She does not live there. Instead, she lives in a house with her family that she does not own. The flat is not producing an income at this time. She works as a shop manager and has a net income of £1,521 per calendar month. She confirmed in re-examination that after payment of household expenses such as food, taxes, clothing and so forth. She is left with a surplus of £400-£500 per calendar month. Other than the mortgage, she has no debts.
Law
[110]The Tribunal’s rules (so far as relevant) provide as follows: “2. The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable— “(a) ensuring that the parties are on an equal footing; “(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues; “(c) avoiding unnecessary formality and seeking flexibility in the proceedings; “(d) avoiding delay, so far as compatible with proper consideration of the issues; and “(e) saving expense. “A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal. “… “Striking out Page 17 of 23 “37.—(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim … on any of the following grounds— “(a) that it is scandalous or vexatious or has no reasonable prospect of success; 2… “(2) A claim … may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing. “… “Deposit orders “39.—(1) Where at a preliminary hearing (under rule 53) the Tribunal considers that any specific allegation or argument in a claim … has little reasonable prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument. “(2) The Tribunal shall make reasonable enquiries into the paying party’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit. “…”[111]In Anyanwu and anor v South Bank Student Union and anor [2001] ICR 391 UKHL, the House of Lords highlighted the importance of not striking out discrimination claims (except in the most obvious cases) because they are generally fact-sensitive and require full examination to make a proper determination.[112]In Balls v Downham Market High School and College [2011] IRLR 217 EAT, Lady Smith said that where strike-out is sought or contemplated on the ground that the claim has no reasonable prospect of success, the Tribunal must first consider whether, on a careful consideration of all the available material, it can properly conclude that the claim has no reasonable prospect of success. She emphasised the test is not whether the claim is likely to fail; nor is it a question of asking whether it is possible that the claim will fail. She said it is not a test that can be satisfied by considering what is put forward by the respondent either in the ET3 or in submissions and deciding whether their written or oral assertions regarding disputed matters are likely to be established as facts: It is a high test. She directed the Tribunal consider not only the material specifically relied on by parties but to the Tribunal’s own file. There may be correspondence or other documentation which contains material that is relevant to the issue of whether it can be concluded that the claim has no reasonable prospect of success or which assists in determining whether it is fair to strike out the claim. If there was relevant material on file and it was not referred to by the parties, the Judge ought to draw their attention to it so that they could make submissions regarding it. Page 18 of 23[113]The Tribunal should not conduct a mini-trial. The Tribunal must also bear in mind that the reasons for actions, the context of a discrimination claim, is a factual issue for determination. In Mecharov v Citibank NA [2016] ICR 1121 EAT Mitting J emphasised that it was crucial when considering whether to strike out that the Tribunal takes the claimant’s case at its highest. If the case is conclusively disproved by, or is totally and inexplicably inconsistent with, undisputed contemporaneous documents, then it might be appropriate to strike it out. But whenever there are core issues of fact that turn to any extent on oral evidence, these should not be decided without an oral hearing.[114]The Tribunal can however strike out a discrimination claim with factual disputes where it is entirely satisfied that there is no reasonable prospect of the facts necessary to find liability being established, provided they are keenly aware of the danger of reaching such a conclusion in circumstances where the full evidence has not been explored: Ahir v British Airways plc [2017] EWCA Civ 1392 CA.[115]The purpose of a deposit order to identify at an early stage claims with little prospect of success and to discourage their pursuit with a risk of costs if the claim failed. I must be satisfied that there is a proper basis for doubting the likelihood of the party being able to establish essential facts, while avoiding a mini-trial of the facts. Any deposit must be proportionate and not set at a level that the party could not afford. I have to be careful not to restrict access to justice. I should not make an order that cannot be realistically complied with: H v Ismail aors [2017] ICR 486 EAT.[116]The test for a deposit order is not the same as that for a strike out. It can relate to both factual and legal matters: WJ Spring v First Capital East Ltd EAT 0567/11.[117]In Adams v Kingdom Services Group Ltd EAT 0235/18 the Employment Appeal Tribunal held that an Employment Tribunal must give reasons for setting the deposit at a particular amount. The requirement to give reasons for ‘making’ the deposit order under rule 39(3) includes a requirement to give reasons not only for making the order at all but also for the particular amount to be paid.[118]The £1,000 limit is per allegation so that the total deposit can exceed £1,000 where the order covers more than one allegation. However if doing this the Tribunal should stand back and consider the overall proportionality of the order: Wright v Nipponkoa Insurance (Europe) Ltd EAT 0113/14 EAT.[119]In relation to claims under the Equality Act 2010, the claimant needs to prove facts from which the Tribunal could properly conclude, absent explanation, that the respondent discriminated against, harassed or victimised the claimant. In Madarassy v Nomura International plc [2007] IRLR 246 CA the Court of Appeal confirmed that the burden of proof did not shift to a respondent simply by a claimant establishing the facts of a difference in status and a difference in the treatment of her. Those facts only indicated a possibility of discrimination and would not, without more, enable a Tribunal to conclude on the balance of probabilities that the respondent had committed an unlawful act of discrimination. Page 19 of 23
Conclusions
[120]The first question is whether or not the claims for direct discrimination, harassment, victimisation, or constructive unfair dismissal have no reasonable prospect of success?[121]The documents present a strong case for the respondent for the following[122]In addition, I have considered the following 122.1. In relation to the allegation 17, there is a real concern that the detriments complained of are not really detriments and, even if they are, the apparent circumstances suggest no realistic link to any protected act. 122.2. The claimant was unable to explain in submissions in a way I found satisfactory how the public sector equality duty was relevant. The Tribunal has no jurisdiction in relation to that duty though it seems it could form part of the background to a relevant case (see for example G v Head Teacher and Governors of St Gregory’s Catholic Science college [2011] EWHC 1452 QBD). The main issue though was I can see no real way on how any possible breach when deciding to re-organise the respondent’s services impacted on Ms Panesar. There is no claim of indirect discrimination, she clearly filled in an expression of interest and that must have been done voluntarily, and there is no obvious way any alleged failure actually impacted on her contract of employment. 122.3. Ms Panesar’s complaints that she was criticised over her spelling and grammar are founded on the fact that she is Kenyan Page 20 of 23 Asian and therefore will not speak English to the same standard as someone who was born in the United Kingdom. As a claim of direct discrimination, it means that for Ms Panesar to succeed, the Tribunal must conclude that she was criticised about her spelling and grammar because she is Kenyan Asian whereas anyone else who made the same spelling and grammar errors but who was not Kenyan Asian would not have been pulled upon it. Given that the spelling and grammar area errors are in the context of social services files and clear expression is important, Ms Panesar’s case seems unlikely. Likewise, it seems highly unlikely that they would harass her because she is Kenyan Asian. 122.4. As things stand it seems that Ms Panesar’s case is no more than what she considers to be adverse things happened to her and she has a particular protected characteristic or can point to an alleged protected act. That alone is not going to be enough to reverse the burden of proof. 122.5. Even if the burden is moved, the long history disclosed in the documents suggest strongly there is a clear alternative explanation for what happened that is not connected to her race or any protected act.[123]However, as the case law emphasises the documents do not tell the whole story. The oral evidence about what happened, and in particular Ms Panesar’s oral evidence, are an important component in an Equality Act 2010 claim. Context is everything. It is only having heard the evidence from the alleged perpetrators that one can consider why they acted as they did or, in the case of direct discrimination particularly, if they would have done the same with someone who was in materially the same situation but did not share Ms Panesar’s race.[124]Bearing in mind the guidance in the previously decided cases (which I have set out above), I do not believe that I can safely conclude that the claims under the Equality Act 2010 have no reasonable prospect of success. The oral evidence in this case is of significant importance. Conscious of the danger of reaching a decision on the case when I have not heard the full evidence, I cannot be entirely satisfied that Ms Panesar’s claims under the Equality Act 2010 have no reasonable prospect of success.[125]As for the claim of constructive unfair dismissal, I remind myself that the test as to whether there has been a breach is an objective one. I believe the claim is weaker than those under the Equality Act 2010. However, after careful consideration I am not going to strike it out. The factual issues that arise under the constructive unfair dismissal claim are almost – if not entirely – identical to those of the rise and Equality Act 2010 claims. Striking it out would not reduce the factual enquiries the Tribunal has to make into the facts of the case. To allow the constructive unfair dismissal claim to proceed therefore is not going to have a significant impact on the time required to hear and determine the case or the resources the respondent would have to commit to any trial. I consider it artificial to consider the Equality Act 2010 claims but not the unfair dismissal claim. Page 21 of 23[126]I am sceptical about the public sector equality duty claim. However once the Tribunal has heard the evidence and full legal argument, it can then properly consider if liability arises. Considering it does not have any significant impact on the resources required from the Tribunal or respondent. Striking out that part would also be artificial in the circumstances and not further the overriding objective.[127]The second question is whether or not the claims under the Equality Act 2010 have little reasonable prospect of success. After careful consideration, I have concluded that the claims for direct discrimination, harassment and victimisation have little reasonable prospect of success.[128]Taking into the above observations when I was considering whether there was no reasonable prospect of success, I believe that they show that there is little reasonable prospect of success. The history of similar performance issues from even before Ms Panesar’s first allegation and the documented offers of help stand in stark contrast to the picture she seeks to paint. There is significant material in support, and it seems unlikely it was all made for show. Indeed, some of the documents Ms Panesar assented to by signing them to confirm her approval. There seems little prospect her oral evidence will overcome difficulties with the long history demonstrated by the documentary evidence[129]Because I am satisfied that the claims have little reasonable prospect of success, I must go on to decide whether or not I should exercise my discretion to make an order that she pay deposit as a condition of pursuing the allegations. I believe that I should make an order that she pay deposit in respect of the allegations. The Tribunal should mark that it considers the claims have little reasonable prospect of success and encourage the claimant to consider her case carefully and consider if she should either withdraw her claim or some parts of it or pay the deposit and continue. That is likely to further the overriding objective by focusing her mind on the issues that she faces so the claim proceeds accordingly.[130]In particular the allegations that fall in the Equality Act 2010 that I believe the deposit should relate to are 130.1. In respect of direct discrimination because of race, the allegation that any of the alleged conduct occurred because of her race; 130.2. In respect of harassment because of race, the allegation at any of the alleged conduct occurred because of her race; 130.3. In respect of victimisation the allegation at any of the alleged conduct occurred because of a protected act. 130.4. In relation to allegation 17, that the alleged detriments are in fact detriments.[131]I have structured it that way because that is the crux of any discrimination, harassment or victimisation claim and focuses on a key weakness.[132]In relation to the constructive unfair dismissal claim I believe the deposit should relate to the allegation that the has been a fundamental breach of the implied term of trust and confidence in her contract of employment. That Page 22 of 23 again is the key part of any constructive unfair dismissal claim and is where the deposit order is most aptly focused.[133]As to the amounts, I have ordered small deposits for each relevant allegation under the Equality Act 2010 so that Ms Panesar can pick and choose if she wishes. I have ordered a large single deposit in respect of the constructive unfair dismissal because that covers a whole range of facts, I consider it particularly weak and because if it continued alone it would require the same resources.[134]As to the amounts they are set out in the deposit order. In short, the Equality Act 2010 claims attract £100 deposit per allegation and the constructive unfair dismissal claim attracts £1,000 for the claim.[135]If she wishes to pursue all allegations, then the total sum of the deposits will be £3,500. Given her savings and surplus income, and the purpose of a deposit order is to encourage a party to think carefully about the merits of their case, the number of allegations and considering the Tribunal time and resources the respondent would have to commit to a hearing, I am satisfied that the total is proportionate and reasonable.[136]I have considered if this sum would impact on her ability to access justice. She did not give any evidence on this. there is no evidence to suggest this would be the case. Such evidence as I do have shows that, even if she paid the whole deposit, she would have left £5,500 savings, plus an income of £400-£500 per month, plus an undisclosed equity in her property.
BACKGROUND
[1]The Claimant was represented by Mr G Blakey who describes himself as a retired solicitor. The Respondent was represented by Miss N Owen of Counsel.[2]At the commencement of the hearing, both parties made applications which are summarised below.[3]Mr Blakey applied for an adjournment of the hearing on the basis it should be heard in person. He referred to the Presidential Guidance which he claimed provides that discrimination cases should default to in person hearings. He argued that it was necessary to be able to cross-examine witnesses in person to test the veracity of their evidence and allowing the hearing to take place by video, albeit a hybrid hearing, marked a radical departure from the procedure adopted by the Courts and Tribunals for a long time. The Employment Judge said he was unaware that the Presidential Guidance required discrimination hearings to default to attended hearings. Mr Blakey was asked to specifically refer to the Presidential Guidance he was relying on in his application. In the event, it transpired that he was relying, not on any Presidential Guidance, but on the road map produced by the President. The Employment Judge pointed out that this clearly states the reference to discrimination cases being heard in person applies only to cases not yet listed and that this case had been listed for some time. Mr Blakey replied that if the Tribunal decided to continue with the hearing appropriate advice would have to be given to the Claimant regarding a review. He said this was “all about switching for the Tribunal’s convenience alone”.[4]Miss Owen, having taken instructions, then confirmed that four of the Respondent’s witnesses would attend the hearing in person. The two who could not attend in person included one who no longer worked for the Respondent and both of them preferred to shield for health reasons.[5]Mr Blakey then continued his application by asking for a review of Employment Judge Camp’s order dated 5 May 2021 in which the Claimant’s previous application for an adjournment was refused. He said there were serious disclosure failures by the Respondent and an audit trail of the Claimant’s work for the Respondent had not been disclosed and this would show her productivity was satisfactory. He also cited an outstanding application to the EAT for an extension of time for filing grounds of appeal in relation to Employment Judge Adkinson’s decision to make a deposit order against the Claimant on 4 December 2020. He said the hearing would be affected by the Deposit Order as it would mean there was inequality of arms between the parties as the Claimant had paid the deposit of £3500 and now had insufficient money to instruct Counsel.[6]Miss Owen in reply pointed out that the Claimant should have made any application for disclosure to the Employment Tribunal, some audit trail documents had been disclosed, the appeal to the EAT did not affect the issues in the case and this was the first time that the Claimant not having enough money for Counsel or professional witnesses had been raised. In response to that argument, Mr Blakey said there had been no application for disclosure because he had been very ill several times during the last year.[7]Having considered the representations of the parties, and having noted that they were advised on 11 May 2021 that this would be a Video Hearing, the application was refused on the grounds that the interests of justice would not be served by a further delay.[8]Miss Owen then made an application to strike out the claims on the grounds that the Claimant had not complied with the Tribunal’s orders in relation to witness statements. This is based on the fact that the Claimant, who has made many allegations against the Respondent, submitted a witness statement which was less than two pages of A4 in length. Miss Owen argued that this was totally inadequate for claims of this nature and did not contain all the evidence which the Claimant would seek to rely on. In such circumstances, the Respondent had not been able to prepare its case. In response, Mr Blakey said the matter had been long drawn out by the Respondent and the Claimant had suffered serious psychological damage. Further, due to the Deposit Order, she could not afford a psychiatric report. He submitted it was very clear what information the Claimant was relying on and there could be no dispute about that. The evidence provided was a full account of her claims. There was no proposition of law that the evidence in the claim cannot be relied on and it had been incorporated by reference to her witness statement. He submitted that if the hearing could not proceed, it should be adjourned as the Claimant would be denied an opportunity to present her case.[9]The Tribunal considered the witness statement which, by no stretch of the imagination, came close to containing all of the evidence upon which she would seek to rely. Mr Blakey’s submission that all other “evidence” was incorporated by reference did not really stand up. The Employment Judge noted, for example, that the witness statement at one point referred to one other document which in turn referred to another document which might be assumed to render following the evidence very difficult. The Claimant’s witness statement should have incorporated all of her evidence without the Tribunal or the Respondent having to drill down to make sense of it.[10]Having said that, the Tribunal was conscious of the fact that this case was now very old and it was in neither party’s interests to extend it further. In addition, it was in the Interest of Justice to allow the Claimant to present her case. Accordingly, we decided it was not appropriate to strike out the claims and the hearing should continue.
The Claims
[11]The Claimant presented her claim to the Employment Tribunal on 12 June 2018 after a period of early conciliation. She brings claims of constructive unfair dismissal, direct race discrimination, harassment and victimisation. The constructive unfair dismissal claim relies on an alleged breach by the Respondent of the implied term of trust and confidence in the Claimant’s Contract of Employment illustrated by the various allegations of discrimination, harassment and victimisation and also the Respondent’s alleged failure to apply the public sector equality duty when it restructured its workstreams resulting in the Claimant moving from the Domiciliary Review Team to the Older Adults Team.[12]The specific events relied upon by the Claimant in support of her claims are set out in a document entitled “Appendix to Respondents Application: Agreed List of Allegations” (the appendix) which was prepared on behalf of the Claimant on 7 May 2019 and amended on 16 May 2019. The appendix is annexed to this Judgment. The Respondent denies all of the allegations.[14]On 4 December 2020, Employment Judge Adkinson considered an application by the Respondent to strike out the claims on the grounds that they had no reasonable prospects of success under Rule 37 of the Employment Tribunals (Constitution and Rules and Procedures) Regulations 2013 (The Rules) or that a Deposit Order should be made on the ground that the claims had little prospect of success pursuant to Rule 39. Employment Judge Adkinson held that a Deposit Order should be made in the sum of £100 for each allegation of direct race discrimination, harassment and victimisation and £1000 in respect of the constructive unfair dismissal claim. The total of the Deposit Order was £3500 which the Claimant duly paid.
The Issues
[15]The issues, as we see them, are as follows: i. Direct discrimination because of race – section 13 EQA. Did the Respondent subject the Claimant to the treatment set out in the appendix? ii. Was that treatment “less favourable treatment” ie did the Respondent treat the Claimant as alleged less favourably than it treated or would have treated others (comparators) in not materially different circumstances? iii. If so, was this because of the Claimant’s race? iv. Harassment related to race – section 26 EQA. Did the Respondent engage in the conduct set out in the appendix? v. If so, was that conduct unwanted? vi. If so, did it relate to the protected characteristic of race? vii. Did the conduct have the purpose or (taking into account the Claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect) the effect of violating the Claimant’s dignity or creating an intimidating/hostile degrading, humiliating or offensive environment for the Claimant? viii. Victimisation – section 27 EQA. Did the Claimant do a protected act? ix. Did the Respondent subject the Claimant to any detriments as a result of that protected act? x. If so, was this because the Claimant did a protected act and/or because the Respondent believed the Claimant had done, or might do, a protected act? xi. If so, was the dismissal fair or unfair in accordance with section 98(4) ERA and, in particular, did the Respondent in all respects act within the socalled band of reasonable responses? xii. The Claimant alleges she resigned because of the Respondent’s conduct. Was the Claimant dismissed ie did the matters set out in the appendix amount to a fundamental breach of the Contract of Employment and did the Respondent bridge the so-called trust and confidence term and(a) did it without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously to damage the relationship and trust and confidence between it and the Claimant?(b) if so, did the Claimant affirm the Contract of Employment before resigning?(c) if not, did the Claimant resign in response to the Respondent’s conduct? xiii. The conduct the Claimant relies on as breaching the trust and confidence term is those matters set out in the appendix. xiv. If the Claimant was dismissed: what was the principal reason for dismissal and was it a potentially fair one in accordance with section 98(1) and (2) of the ERA and, if so, was the dismissal fair or unfair in accordance with section 98(4) ERA and, in particular, did the Respondent in all respects act within the so-called band of reasonable responses? The Law[16]Section 94(1) ERA provides that an employee has the right not to be unfairly dismissed by his employer.[17]Section 95(1)(c) ERA provides that an employee is dismissed by his employer if the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employers conduct.[18]Section 98 ERA provides: - “(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show—(a) the reason (or, if more than one, the principal reason) for the dismissal, and(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. (2) A reason falls within this subsection if it— (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) relates to the conduct of the employee(c) is that the employee was redundant, or(d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment. (3) …………… (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case”.[19]Section 13 EQA provides: “(1) A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others”.[20]Section 4 EQA provides: “that race is a protected characteristic”.[21]Section 26 EQA provides: “(1) A person(a) (A) harasses another(b) (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. (2) ……… (3) ……… (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”.[22]Section 27 EQA provides: “(1) A person(a) (A) victimises another person(b) (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act. (2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act;(c) doing any other thing for the purposes of or in connection with this Act;(d) making an allegation (whether or not express) that A or another person has contravened this Act. (3) ……. (4) …….. (5) The reference to contravening this Act includes a reference to committing a breach of an equality clause or rule”.[23]Section 149 EQA provides: “(1) A public authority must, in the exercise of its functions, have due regard to the need to—(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it. (2) ….. (3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to— (a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic; (b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it; (c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low. (4) ….. (5) Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to— (a) tackle prejudice, and (b) promote understanding. (6) Compliance with the duties in this section may involve treating some persons more favourably than others; but that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act”. The Evidence[24]There was an agreed bundle of documents of well over 1000 pages including the Claimant’s additional bundle of documents. References to page numbers in this Judgment are to page numbers in the bundle.[25]We heard evidence from the Claimant and for the Respondent, from Mr Peter Davis who worked for the Respondent 11 January 2016 to 23 December 2020 in the position of Assistant Director (Care Pathway/West); Ms Sarah Davis who worked as a Service Manager for the Older Adults Team within the Respondent from 2017 to January 2021; Ms Nicolette Groves-Hunter, Team Manager of the Respondent’s Domiciliary Review Team; Ms Andrea Woodier, Team Manager of the Respondent’s Older Adults Team; and Ms Jackie Wright, the Respondent’s Head of Service.[26]All witnesses produced witness statements and were cross-examined. The
Hearing
[27]This was an unusual case since the Claimant had failed to submit a witness statement containing all of her evidence and it was left to Mr Blakey to carry out an examination-in-chief. On at least 8 occasions, the Employment Judge had to point out to him that he was asking leading questions. His questions of the Claimant, but also of the Respondent’s witnesses, were extremely long such that the witness and the Tribunal lost track of the question completely before it could be answered. He was told by the Employment Judge that his questions should be put more concisely but this was a hint he failed to take and continued as before.[28]But what was more unusual were the events of 26 May 2021. During the cross examination of Ms Parker-Cole, the Employment Judge noticed that the Claimant was not present. When he enquired about her whereabouts, Mr Blakey said she was dealing with another matter and would attend later. By way of background, one of the allegations against the Claimant was that she had told some of the Respondent’s service users that she had suffered racism and discrimination by the Respondent. The Claimant then attended the hearing at noon and handed to Mr Blakey a signed witness statement, not previously disclosed, by one of the service users, who we shall refer to as Mrs T, which denied she had been spoken to about such matters by the Claimant. Mr Blakey wanted this statement to be admitted into evidence saying it proved Miss Parker-Cole was lying. He said Mrs T was prepared to come to the Tribunal to give evidence. When it was pointed out to him that this statement should have been disclosed before, he said it had been in the Claimant’s possession since 13 April 2021, but it seems Mrs T had only signed it on 25 May when the Claimant went to see her.[29]There was then a discussion between the parties and the Employment Judge. Miss Owen pointed out that the Claimant had not been cross-examined on this allegation against her, but Mr Blakey insisted it was highly relevant and should be admitted. He said it had only now been referred to by the Respondent in their evidence. Miss Owen noted that this was incorrect and referred to page B495 in the bundle which was an email raising the Respondent’s concerns on 4 December 2017 and which had been in the bundle for a full year.[30]After further discussions, Miss Owen agreed to the admission of the witness statement into evidence saying that the Tribunal could make of it what it wished. However, its subsequently transpired that the Claimant had visited Mrs T that morning to get the statement signed and that the statement had purportedly been read out to Mrs T, who did not read it herself before signing, when she was alone. Further evidence was given that Mrs T is a 70-year-old woman with short term memory loss, a physical impairment and alcohol dependency. Her daughter, who provides care for her with the support of the Respondents, made a serious complaint about the actions of the Claimant to the Respondent as a result of which a safeguarding inquiry would have to be held. Mrs T’s daughter made clear that Mrs T would not attend the Tribunal to give evidence and made allegations of grooming against the Claimant.[31]Mr Blakey wished the Claimant to be recalled to give rebuttal evidence in respect of the allegation of comments made to service users made against her. The Employment Judge indicated he was not prepared to interrupt the Respondent’s evidence to hear further evidence from the Claimant and if Mr Blakey wished to recall her, he could make an application at the close of the Respondent’s evidence. In the event, despite the parties being asked by the Employment Judge whether there were any further applications, Mr Blakey indicated he did not propose to recall the Claimant.[32]When the Respondent’s evidence began, Mr Blakey asked for another table to be brought into the Tribunal room so that the Claimant could sit next to him. The Employment Judge indicated that this would not be possible because the Tribunal’s Risk Assessment meant that social distancing had to be maintained during the hearing. He advised Mr Blakey that, if he should require time to take instructions from the Claimant, brief adjournments would be granted to allow him to do so. No such applications were made.[33]There is one further incident involving Mr Blakey which is worthy of note. During his cross-examination of Ms Wright, the Respondent’s last witness, he seemingly became unimpressed with her answer to a question and decided to make an audible snoring noise. This is not the kind of conduct the Tribunal expects of a legal representative.[34]As far as the Claimant’s evidence is concerned, the Tribunal did not find it to be credible. Whenever she was referred to a document or conversation regarding the many supervisions she had and which did not assist her case, she said she could not remember them. She also said she could not remember undertaking some training which was clearly noted in the Respondent’s records. This seemed to happen whenever the document or conversation did not assist her case and the Employment Judge’s notes show that this lack of memory arose on no less than 40 separate occasions. In most cases, the Claimant said that her lack of competency was due to race discrimination without any explanation as to why this was the case. Indeed, the only reference to an actual comparator was that a white member of the team was given a mentor and the Claimant was refused one. The Respondent justified this on the basis that the white employee referred to had no previous experience of the kind of work undertaken in the Older Adults Team. The Claimant’s lack of memory was also questionable in so far as many of the supervisory meetings were noted in writing by the Respondent and, where notes of the meetings were sent to her, in all but one case she countersigned and returned them.[35]By contrast, the Respondent’s actions in relation to the Claimant’s work were meticulously noted providing a thorough record of their attempts to assist the Claimant in presenting her work to the required standard.[36]The evidence of the Respondent’s witnesses was given in each case in a straightforward manner without hesitation. Our sense of that evidence was that the Respondent had made serious and prolonged attempts to encourage the Claimant to improve her standard of work. Without exception, we found the evidence of the Respondent’s witnesses to be truthfully given.[37]For these reasons, whenever there was a dispute on the evidence, we preferred the evidence of the Respondent’s witnesses.[38]For completeness sake, the Claimant also produced a witness statement of Jatinder Purwahar, a CBT and Integrative Psychotherapist and a friend of the Claimant. This consisted of references to Ms Purwahar’s own experiences and opinions. She did not attend to give evidence and the Tribunal attached no weight to the statement. Findings of Fact[39]In relation to the issues, we find the following facts: i. The Claimant commenced employment with the Respondent as a Community Support Worker in the Domiciliary Review Team on 1 June 2016. Her previous employment had been with Nottinghamshire County Council and, before that, with the Respondent where her performance seemed to be satisfactory although “prompts are occasionally required to pay attention to detail, particularly when completing assessments which will be read by the service user, spelling is occasionally an issue” (B13). References were taken up from Nottinghamshire County Council, one of which only referred to her voluntary work and this included comments that “Manjeet was employed as a Community Care Officer however had not been undertaking these duties for approximately 18 months. At the point of leaving NCC Manjeet was completing duties associated with a business support role” and “at the time of leaving NCC Manjeet was not working in the role for which she had been employed and formal performance monitoring had been initiated” (B23). Further there were comments that “Manjeet has not been performing the tasks expected of her role for some time and was at the time of submitting her resignation subject to performance monitoring procedures” and “unfortunately I am unable to recommend Manjeet for this and any post”. It was further noted that “there have been significant and long standing issues raised in regards Manjeet’s behaviour towards her colleagues and myself” and “at the time of leaving NCC Manjeet was subjected to disciplinary proceedings and had also received a year’s final written warning in relation to attendance” (B24). This reference was not received until 15 August 2016, but the Respondent seems to have confirmed the Claimant’s appointment notwithstanding this poor reference and after receiving a character reference on 3 October 2016. The Claimant advised Ms Groves-Hunter that she had been a victim of racism, bullying and defamation of character at Nottinghamshire County Council and had instructed a solicitor to pursue her case in this regard. ii. Ms Groves-Hunter took over line management of the Claimant from Ms Parker-Cole on 1 April 2017 and Ms Parker-Cole told her she should carefully monitor the Claimant in respect of the completion of her assessments. Further, she said the Claimant was slow on the Respondent’s IAS system, the accuracy of her reports had been questioned, her output was low, and she had had some absences from work. iii. Ms Groves-Hunter noted concerns with the Claimant’s performance very shortly after she took over her line management. On 19 April 2017 she held a supervision meeting with the Claimant (B78-81) and the Claimant was asked to send all of her assessments to Ms Groves-Hunter for her to check. iv. By 4 May 2017, Ms Groves-Hunter emailed the Claimant detailing particular concerns in relation to delays in her recording of cases as a result of which she was not allocated any more cases to enable her to catch up. v. In around May or June 2017, Ms Groves-Hunter was told by another team member that the Claimant had told a service user that Ms GrovesHunter was a “tyrant”. vi. Throughout the early part of 2017, there were plans and implementations by the Respondent to restructure some of their teams. Team members who were affected, which included the Claimant, were required to indicate three choices of teams they would be prepared to work in if they had to leave the Domiciliary Review Team. The Claimant only applied for a role in the Domiciliary Review Team. In completing the skills matrix and expression of interest form for the purposes of the restructure, the Claimant noted her experience which included (page B86) “whilst working as a Community Support Worker I have read a number of assessments from Community Support Workers and Social Workers and this has helped me in my role to develop my own assessments of need. I feel I am competent and able to assess an individual’s situation in the home and also able to translate this assessment into a document on our IAS Logic system. This system contains all records of clients we have been involved with for support or services and it’s for the use of our staff and health colleagues. I have used framework to help clients gain access to appropriate services and also to note conversations or documents relating to a particular client. I have had training on the system and am aware of the need for confidentiality. I feel these skills are transferable and usable within any environment” (our emphasis). Further, she said “my interpersonal skills and communications with others are first class and I can deal with most people and any situation whether planned or thinking on my feet” and “with my supervisory skills I can put into practice my experience and contribute to team work or work on my own initiative” (B87). vii. On 30 May 2017, the Claimant was informed she would be transferred to the Older Adults Team as part of the restructure. The selection process did not identify the Claimant as having the correct skills to continue in the Domiciliary Review Team and the ranking system employed by the Respondent identified her as being at the bottom of the list. The Claimant was notified of her move to the Older Adults Team and accepted this transfer on 5 June 2017. She asked for and was given feedback in relation to her selection. viii. At this point, the Claimant was having regular supervision meetings with Ms Groves-Hunter and, at the meeting on 13 June 2017, the Claimant was told of continuing concerns about her performance and told that an informal performance plan would be put in place to support her. The supervision notes are at page B126 and the email sending them to the Claimant is at page B132. ix. As part of her supervision of the Claimant, Ms Groves-Hunter emailed her in relation to one service user to advise that the assessment remained incorrect, the Claimant had stated the service user was unsafe around the house but that there are no needs; she had not carried out a home visit or, at least, in the assessment only referred to a telephone review; she had not updated case notes to say what happened when she visited the service user; and that the assessment was once more being rejected for the Claimant to complete it accurately and verify whether she had reviewed the service user by telephone or during a home visit (B145). Additionally, there is a July 2017 audit of the Claimant’s cases (B146-147) showing significant issues with 10 of the Claimant’s assessments. x. The Older Adults Team was managed jointly by Ms Davis and Ms Woodier. Ms Woodier initially took on line management of the Claimant but, when a serious safeguarding issue arose with Police involvement, Ms Davis took over the Claimant’s line management. Initially, the Claimant was allocated non-urgent straightforward cases so she could settle into the work of the Older Adults Team. This comprised 10 cases to begin, with a view to increasing them to around the normal case load for team members to around 20 cases. On 12 September 2017, Ms Davis held her first supervision with the Claimant to work through her cases and this is recorded in the one-to-one meeting record at pages B228- 231. The Claimant signed these notes on 12 September 2017. Ms Davis went through the Claimant’s assessments, one of which needed to be amended. Ms Davis gave the Claimant four examples of the assessments completed by other members of the team to assist her. The other assessments were returned to the Claimant’s “basket” for her to amend (B232). The Claimant emailed Ms Davis on 13 September 2017 saying “Thank you. Please note I am going through my assessments once I done (sic) the relevant amendments I will resend them to you”. There is no credible evidence that, as alleged by the Claimant, Ms Davis was hostile towards her, failed to make eye contact with her, said that her spelling and grammar were terrible and did not make sense or that she said that the Claimant did not know what the role of a Community Support Worker was. xi. Following the supervision on 12 September 2017, the Claimant’s work continued to give cause for concern and both Ms Woodier and Ms Davis rejected assessments. Further, a training session arranged, principally for the Claimant’s benefit, within the Older Adults Team was not attended by the Claimant who chose instead to go on a shadowing visit with another team member. For the avoidance of doubt, we do not find that the Claimant requested a mentor in the meeting on 12 September nor between that date and 25 October 2017 did Ms Davis put her hand up in a manner indicating she had no time to speak to the Claimant. xii. There was a further supervision with Ms Davis and the Claimant on 29 September 2017. When she arrived in the office for the supervision, Ms Davis found the Claimant clearly upset and being comforted by other team members. She had a private conversation with the Claimant who said she thought she was going to be dismissed because of the emails she had been receiving about her work. Ms Davis reassured the Claimant that this was not the case and all she and Ms Woodier were trying to do was support her in order to improve the level of work which was required. Ms Davis suggested that, since the Claimant was upset, the supervision could be postponed, but the Claimant said she wished to continue. In the supervision meeting, Ms Davis advised the Claimant that her performance had caused concerns and that the intention was to support her. Ms Davis pointed out to the Claimant that she had failed to deal with some cases for the 8 weeks during which she had been in the Older Adults Team. Ms Davis did tell the Claimant that if there was no improvement in the following 2 weeks, she would be looking at starting an informal capability procedure. The notes of the meeting are at pages B268-272. They were sent to the Claimant who signed and returned them on 4 October 2017. The reference to a formal capability procedure on page B269 we accept is a typographical error. This view is supported by the fact that the informal capability procedure was subsequently instituted. Ms Davis’s notes were accurate and not at all misleading illustrated by the fact that the Claimant signed and returned them without amendment. During the meeting on 29 September, Ms Davis spent a long time going through the Claimant’s assessments with a view to supporting her and assisting her to improve. xiii. Following the meeting on 29 September, the Claimant’s work continued to give cause for concern. She continued to be supported by both Ms Davis and Ms Woodier, but her assessments continued to be rejected. She was booked on to a training session and given templates to assist her in her work. In an email on 16 October 2017 (B335), Ms Davis set out a number of issues with her assessments noting issues with them (apart from two which were authorised) including noting that one assessment had been sent back to the Claimant on 3 occasions. In that email, Ms Davis indicated that she would be invoking the informal capability procedure and attached a copy of the Respondent’s employee capability guidance to the email. A meeting was arranged for 23 October 2017. The Respondent’s Capability Policy and Procedure Employee Guidance (pages B337-B342) was sent to the Claimant by Ms Davis on 16 October 2017 (page B335). It provides that its purpose “is to provide a supportive framework to assist employees, when a shortfall in performance has been identified. The aim is to support employees in being able to improve, reach and maintain the standard of performance which is expected in their area of work”. Further, the Guidance tells employees how they will know if there are problems with their work by advising, “Your Line Manager should discuss any issues regarding your performance with you, as they arise. This is a key part of a manager’s role and should form part of their normal day to day management of people. If a pattern of unsatisfactory performance arises the manager will invoke the first part of the Capability Procedure, however this will not be done without discussing the situation with you first”. We find, based on the Respondent’s witness evidence and the supporting documentary evidence, that Ms Davis ticked every box in her management of the Claimant’s poor performance and in invoking the informal procedure. xiv. On 16 October 2017, the Claimant asked if she could have a mentor. This is noted in Ms Davis’s email to Ms Woodier (B364). Ms Davis and Ms Woodier discussed the request but decided it would not be necessary because the Claimant was already receiving one-to-one mentoring from Ms Davis 3 to 4 days each week. Further, other team members were also assisting the Claimant as necessary. The Claimant had not been given any more cases to allow her to finish the assessments which had been rejected and it was therefore proposed to give her more cases since she had far fewer than other team members. xv. Ms Davis met with the Claimant on 23 October 2017 and the notes of the meeting are at B370. This was the commencement of the informal capability procedure during which the Claimant confirmed there were no personal or other reasons why she was underperforming and said there was nothing further Ms Davis or Ms Woodier could do to support her. She was booked on to IAS Training/Safeguarding, Carers Assessment and Care and Support Assessment for the third time and was asked to email Ms Davis and Ms Woodier at the end of each day detailing what work she had completed. A performance improvement plan was discussed and signed by Ms Davis and the Claimant (B372-374). xvi. Following the meeting on 23 October, Ms Davis continued to support the Claimant whose work did not improve. She was available to the Claimant whenever the Claimant asked for help and continued to monitor her assessments. She did not ignore the Claimant when she came into the office nor did either Ms Davis or Ms Woodier overwhelm the Claimant with emails. Those sent were constructive and designed to support the Claimant. xvii. Ms Davis held an informal capability review meeting with the Claimant on 6 November 2017. They discussed each of the Claimant’s cases and it became clear to Ms Davis that the Claimant was still not making sufficient progress on her cases and was making many errors. The notes of this meeting are at B435 to 437. These notes were sent to the Claimant who signed and returned them without amendment (B441). During the meeting, Ms Davis mentioned to the Claimant that she had been told by another member of the team that the Claimant said she was unhappy with the way she was being managed by Ms Davis. Ms Davis explained that the Claimant could speak to other people within the team and mentioned Ms Woodier and their own Line Manager, Ms Wright. xviii. The Claimant’s performance did not improve. She was emailed by Ms Davis and Ms Woodier regularly in respect of her cases in an effort to support her. xix. On 20 November 2017, Ms Davis held an informal capability review with the Claimant as part of the performance plan they had agreed (B449- 451). Ms Davis advised the Claimant that the same issues kept arising with her assessments and she gave some examples with details of her concerns. The Claimant had been advised that she could be accompanied to the meeting but attended alone. Ms Davis advised the Claimant that the formal capability procedure would now be invoked. A copy of the notes was sent to the Claimant and by letter sent on 21 November 2017 the Claimant was formally advised that the formal capability policy would be invoked (B453). The Claimant did not ask for a mentor at the meeting on 20 November. xx. On 1 December 2017 Ms Woodier and Ms Davis became aware from other colleagues that the Claimant was alleging they were discriminating against her by reason of her race and she had also been discussing this with service users. The Claimant had also made reference to instructing a solicitor. The Claimant’s performance continued to be a cause for concern and she was regularly and constructively supported by Ms Davis in relation to her assessments. xxi. On the same day there was a team meeting of the Older Adults Team and Ms Davis spoke privately with the Claimant afterwards to advise her that if she had any issues, she should use the correct channels to raise them. Ms Woodier also attended the meeting and both she and Ms Davis conducted the meeting in a calm manner with no raised voices. Ms Davis contacted the Respondent’s HR service for advice. But on the same date, the Claimant spoke to another team member stating that Ms Davis and Ms Woodier were trying to get rid of her. xxii. At the informal meeting on 1 December 2017, the Claimant said she would be lodging a grievance against Ms Davis and Ms Woodier but did not say it was on the ground of race discrimination and gave no further detail. xxiii. The Claimant’s work continued to be of poor standard and Ms Davis noted all of her failings in an email to the Claimant (B561-562). Details of the issues can be found at B549-553. xxiv. On 18 December 2017 the Claimant commenced a period of sickness absence and did not return to work. On 10 January 2018 Ms Davis visited one of the Claimant’s service users who said the Claimant had told them she was leaving the Respondent and would not be visiting her again. xxv. On 15 January 2018, Ms Davis called the Claimant to see how she was because her fitness for work certificate had run out on 11 January. The Claimant said she had obtained another certificate and that Ms Davis would be hearing from her solicitor. Ms Davis raised the issue of the service user who had said the Claimant told her she would not be visiting again to which the Claimant replied that she would not admit to anything or deny anything. This was a calm conversation and Ms Davis did not raise her voice. xxvi. Meetings were arranged for the Claimant to see Ms Wright and Ms Davis in relation to the Claimant’s issues and her absence. On 5 February 2018 the Claimant sent an email to both of them saying she was unable to attend the meetings. xxvii. The Claimant submitted a grievance against Ms Davis on 20 February 2018 alleging bullying and discrimination. The Respondent carried out a detailed investigation into the Claimant’s grievance which was not upheld. The Claimant did not appeal the outcome. xxviii. On 13 April 2018 the Claimant submitted a second grievance and on or around 17 May an Occupational Health referral was made. Thereafter various attempts were made in June and July 2018 to seek the Claimant’s consent to the release of the Occupational Health report which was not received by the Respondent until March 2020 within these proceedings. xxix. On 31 July 2018, the Claimant resigned giving one month’s notice and her last day of employment was 31 August 2018. Submissions[40]We received substantial submissions and replies thereto from the parties. We do not rehearse them again here, subject to what is said in the following paragraph, but we fully considered them in our deliberations.[41]The Claimant submitted that the Respondent’s capability procedure precluded her from raising a grievance in relation to the instigation of capability procedures. We admit to not understanding the relevance of this submission. Mr Blakey made much of it but, since the Claimant’s allegations are of race discrimination, we do not consider she was precluded from raising a grievance on this basis at any point during her employment. We saw no merit in this submission.[42]Mr Blakey also produced as part of his submissions extracts from the Technical Guidance on the Public Sector Equality Duty of the Equality and Human Rights Commission (TGPSED) and claims that the Respondent had paid no regard to this. Conclusions[43]In this case, the Claimant makes 15 allegations of race discrimination to include direct discrimination, harassment and victimisation. She also relies on each of these allegations to support her claim of constructive unfair dismissal as she claims they amounted to a fundamental breach of the implied term of trust and confidence.[44]The Respondent has raised an issue in relation to time limits. For the record, we do consider that the allegations made by the Claimant could amount to a continuing act. However, in this case, the real issue is whether the allegations have any foundation in the facts found by the Tribunal.[45]We did not find the Claimant to be a credible witness. We have already stated why. Her allegations, broadly speaking, are that the conduct of Ms Davis in particular, amounted to bullying and Ms Davis behaved this way because of the Claimant’s Kenyan Asian race.[46]Section 136(2) EQA provides that if there are facts from which the Court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the Court must hold that the contravention occurred. Section 136(3) EQA provides that subsection (2) does not apply if A shows that A did not contravene the provision.[47]In Igen Ltd v Wong [2005] EWCA Civ 142, the Court of Appeal held that if a Claimant does not prove on the balance of probabilities, facts from which the Tribunal could conclude, in the absence of an adequate explanation that the Respondent has committed an act of discrimination against the Claimant, the Claimant’s claim will fail. Further, in Madarassy v Nomura International Plc [2007] EWCA Civ 33, the Court of Appeal approved the decision in Igen and interpreted the words “could conclude” as meaning that “a reasonable Tribunal could properly conclude” from all the evidence before it.[48]In the unanimous view of the Tribunal, because of her lack of credibility, the Claimant has failed to meet the burden of proof upon her such that it falls to the Respondent to give an adequate explanation of the treatment complained of. Even had we believed the Claimant’s evidence, and taking it at its highest, she presented us with no evidence to support her assumption that her treatment was because of her race. Assumptions with no corroborating evidence are not enough.[49]In considering the documentary evidence before us, it is clear that the Claimant was performing poorly and not up to the expected standard, not only in the Respondent’s Older Adults Team, but also in the Domicillary Review Team and in her previous post at Nottinghamshire County Council. The criticisms of her work were uniform, material and relevant. She simply did not complete her work in a timely manner and when she did it was not up to the expected standard due to glaring mistakes, omissions and poor spelling and grammar. Further, she herself when completing the skills matrix as part of the restructure said that her skills would be easily transferable to other environments. The Respondent could, therefore, rightly assume that the Claimant could “hit the ground running” and work to a reasonable standard from the start.[50]What is more, the Claimant now complains of events she says happened during meetings when she actually signed and returned the notes of some of those meetings without amendment. At no point did she complain about bullying until she lodged her grievance. Alleging some years later that notes of these meetings were misleading or in some way inaccurate does not assist the Claimant now.[51]The oral and documentary evidence produced by the Respondent clearly establishes beyond any doubt that the Claimant’s performance was poor. We found the evidence of the Respondent’s witnesses to be reliable, in no small part due to the documents produced by the Respondent which contained copious notes of meetings and what was discussed in them and included actual evidence of the Claimant’s substandard work in producing her assessments. The Claimant denies that her work was not completed in a timely fashion, that she did not improve when supported by her Managers and says her treatment was due to her race. In the light of the evidence before us, that proposition cannot be sustained. There is no evidence that the Claimant was treated less favourably because of her race. Indeed, we cannot find that she was treated less favourably at all. The Respondent was entirely justified in commenting upon the standard of her work and it is clear that her Managers and others went to considerable lengths to help and support her. Her claim of direct race discrimination must, therefore, fail.[52]It follows from the above discussion that the claims of harassment and victimisation must also fail. In relation to harassment, far from violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her, the Respondent, through the efforts of Ms Davis and Ms Woodier, promoted a supportive environment and gave helpful and constructive advice to the Claimant who was performing poorly in her role. We are mindful of section 26(4)(a)-(c) EqA in relation to considering the Claimant’s perception, the other circumstances of the case and whether it is reasonable for the alleged conduct of the Respondent to have that effect. In each case, we find nothing in the facts to assist the Claimant. Indeed, we have difficulty in accepting that she could reasonably have perceived there to have been any harassment on the grounds of her race. Even were we to accept, which we do not, that the performance management of the Claimant did result in her perceiving it to amount to harassment, it is not reasonable, given our findings of fact, for her to conclude the Respondent’s actions in supporting her amounted to harassment.[53]Similarly, in relation to victimisation, whilst the Claimant’s grievance was a protected act, she has completely failed to establish that she suffered any detriment as a consequence. Initiating a performance review and/or plan for a poorly performing employee does not amount to a detriment if the action of the employer is reasoned, justified and without malice. The Claimant’s performance was poor. She has a history of poor performance in this and her previous employment. She was under performance review in both cases and, it seems, alleged race discrimination in both. We have concluded there was no race discrimination by the Respondent, no harassment and the claim of victimisation has no merit. Being put through performance or capability procedures as a result of genuinely poor performance cannot amount to a detriment. The Claimant alleges that the failure in the Occupational Health referral to mention her ill health was caused by racism at work amounted to victimisation. The Tribunal considers this to be illustrative of some of the quite unrealistic arguments before us. To suggest that any employer would admit to racism is somewhat fanciful and we have, in any event, found there was no race discrimination. The referral was in respect of the alleged illness causing her absence from work and not in respect of the alleged cause.[54]In relation to the claim of constructive unfair dismissal, the Claimant relies on all of the matters referred to in the appendix as conduct of the Respondent entitling her to resign for the purposes of section 95(1) ERA. In Western Excavating (ECC) ltd v Sharp [1978] ICR 221, the Court of Appeal, per Lord Denning MR, said that in order for the employee to succeed in such a claim, the employer must be “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 term of the contract of employment to be relied on may be express or implied. In this case, the Claimant alleges a fundamental breach of the implied term of trust and confidence which is implied into every contract of employment. If such a term is breached by an employer, it will inevitably be fundamental (Morrow v Safeway Stores plc [2002] IRLR 9, EAT).[55]What the Tribunal must first consider is whether there has been a fundamental breach of the implied term. Considering our findings of fact above, we conclude that, not only has there been no fundamental breach of the implied term, but there has no been no breach of any kind, not even a trivial one. In this case, we repeat that the Claimant was performing poorly and the Respondent acted in accordance with its procedures in attempting to help her to improve. Of the matters set out in the appendix and numbered 1-15 upon which the Claimant relies, we have found they did not happen. Of those numbered 16 and 17, they cannot amount to fundamental breaches. They were reasoned decisions taken by Mr Davis at a time when the Claimant was on sickness absence. The failure to admit to racism in the occupational health referral is not a breach of the implied term when the employer does not accept it took place. Accordingly, we find the Claimant resigned of her own volition and that resignation was not as a consequence of any fundamental breach of the implied term of trust and confidence by the Respondent.[56]For completeness, we refer to Mr Blakey’s arguments in relation to section 149 EqA and the TGPSED. He submitted there were compelling arguments that these had been breached. Unfortunately, he was not clear in arguing how they were relevant to the Claimant’s case or how the Respondent had fallen foul of them. This was similar to his argument that there should have been a provision allowing the Claimant to raise a grievance against being put on a performance plan in relation to which the Tribunal could not see how it was relevant to the issues. Submissions must be founded on the evidence and in this case, they were not developed in such a way as we could see their relevance to the issues before us.[57]For the above reasons, we find all of the claims must be dismissed.[58]As mentioned above, a deposit order in the total sum of £3,500 was made by Employment Judge Adkinson as a condition of the Claimant being able to continue with her claims. This order was made on the basis that the Judge considered that the claims had little reasonable prospect of success. EJ Adkinson noted that he had limited documentary evidence before him but heard sufficient evidence at the preliminary hearing to be able to conclude the claims had little reasonable prospect of success. The Claimant paid the deposit.[59]This Tribunal has had the benefit of both oral and documentary evidence. We found the Claimant’s evidence to be unreliable and the documentary evidence totally supportive of the Respondent’s evidence. Rule 39(5) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 provides: (5) If the Tribunal at any stage following the making of a deposit order decides the specific allegation or argument against the paying party for substantially the reasons given in the deposit order –(a) the paying party shall be treated as having acted unreasonably in pursuing that specific allegation or argument for the purpose of Rule 76, unless the contrary is shown; and(b) the deposit shall be paid to the other party ….[60]There was no argument before us that the Claimant had not acted unreasonably in the light of the deposit order; indeed, such an argument would in our view have been doomed to failure given our findings of fact. The making of a deposit order is a clear indication to a party that their case has little reasonable prospect of success and they should consider their position before proceeding with it. It also sends a message to that party that, if the deposit is paid, it may be lost.[61]Accordingly, in accordance with Rule 39(5)(b), we order the deposit paid by the Claimant to be paid to the Respondent.[1]At a Preliminary Hearing before Employment Judge Adkinson on 4 December 2020, a Deposit Order was made against the Claimant in terms that if she wished to pursue all of her allegations, the total sum of the deposits to be paid was £3,500. The Claimant appealed against that Order but the Employment Appeal Tribunal dismissed the Appeal because it was made out of time.[2]The substantive hearing was held over 10 days in 2021 and this Tribunal dismissed all of the claims. Reserved Judgment was sent to the parties on 10 November 2021.[3]The Respondent submitted a costs application within the time limit set out in Rule 77 on 8 December 2021. By an Order sent to the parties on 14 December 2021, the parties were required to prepare for a Costs Hearing on a date to be fixed. Included in the Orders was a requirement that the Claimant submit a response to the application by 1 February 2022.[4]The Costs Hearing was subsequently listed for 5 May 2022. The Claimant had not complied with the Order to respond to the costs application. Instead, Mr Blakey, on behalf of the Claimant, made a number of applications of which no prior notice had been given to the Respondent or the Tribunal including an application for the return of the Claimant’s deposit and for the Claimant’s costs in respect of this litigation. Those applications were refused.[5]It was apparent at the hearing on 5 May 2022 that much further information was required from the Claimant as to her means, assets and outgoings. Further orders were made in this regard.[6]The Costs Hearing was listed again for 25 July 2022 but, once more no orders had been complied with as the Claimant was ill. The hearing was postponed until 24 November 2022 when the Claimant was still ill and further information was still required. The Claimant was required by Order to provide further information and the parties were asked whether they wished there to be another Costs Hearing or whether the Tribunal should make its decision based on the papers submitted to them. The parties agreed that the issue should be decided on the papers.[7]On 6 February 2023 Mr Blakey submitted further applications along with the information required by the Tribunal. These were described as a “cross application” for the return of the deposit of £3,500 paid by the Claimant together with criticisms of the initial Deposit Order and why she maintains it should not have been made, criticisms of the Respondent’s conduct during the litigation, criticisms of the Tribunal in the substantive hearing and its Judgment, further allegations against the Respondent in respect of the issues in the substantive hearing and a proposal to make a late appeal to the Employment Appeal Tribunal.[8]The Employment Judge replied to these applications and comments made on behalf of the Claimant by pointing out that the Employment Tribunal is not an Appellate Court and any issues as set out should have been the subject of an Appeal, in time, to the Employment Appeal Tribunal. It was accordingly made clear that these applications made by Mr Blakey would not be considered by the Tribunal in determining the Respondent’s application for costs. THE RULES[9]Rule 76 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 provides: 1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that – a) A party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way the proceedings (or part) have been conducted; or b) Any claim or response has no reasonable prospect of success or c) …… 2) A Tribunal may also make such an order where a party has been in breach of any order or any practice direction or where a hearing has been postponed or adjourned on the application of a party.”[10]Rule 78 provides: “1) A costs order may – a) Order the paying party to pay the receiving party a specified amount, not exceeding £20,000, in respect of the costs of the receiving party.” THE RESPONDENTS APPLICATION[11]The Respondent’s application for costs runs to 24 pages. Briefly, the application contains a number of allegations relating to the unreasonable conduct of the Claimant including: i) Repeated failure to comply with the Tribunal’s orders; ii) Repeatedly requesting adjournments and postponements without good cause; iii) Producing a witness statement of just two pages which had a direct bearing on the length of the hearing and caused additional costs to be incurred by the Respondent; iv) Seeking to bring in to evidence a witness statement made by one of the Respondent’s service users during the hearing itself; v) Mr Blakey snorting aloud towards one of the Respondent’s witness while she was giving evidence; vi) Mr Blakey continuing to ask leading questions of the Claimant notwithstanding being warned about such conduct by the Employment Judge; vii) Bringing or pursuing unmeritorious claims as clearly indicated by the making of the Deposit Order by Employment Judge Adkinson. THE CLAIMANT’S RESPONSE TO THE APPLICATION FOR COSTS[12]The Claimant’s response to the application was eventually submitted by Mr Blakey on 6 February 2023. As noted above, it mainly comprised an application for the return of the deposit in the sum of £3,500 and criticised the Respondent, Employment Judge Adkinson and this Tribunal. It set out potential points of Appeal which are in any event well out of time and did not address in any detail the points of the Respondent’s application. THE CONDUCT OF THE CLAIMANT[13]Our starting point is the Judgment of Employment Judge Adkinson at the hearing on 4 December 2020. Judge Adkinson noted from the documents before him that the Claimant had performed poorly in her role with the Respondent and, before that, in a similar role for Nottinghamshire County Council in which she was subject to performance monitoring procedures. The Judge further noted that it was quite apparent that the Claimant had been offered support and guidance by the Respondent and there was considerable detail to support this finding. Judge Adkinson also noted that there was evidence that a member of staff of the Respondent reported that the Claimant was making unfair claims of racial discrimination against her and her Line Manager to other members of the team and was possibly having conversations with vulnerable service users along the same lines.[14]Judge Adkinson concluded that the documentary evidence before him presented a strong case for the Respondent because the documentary trail showed a history of the same sort of issues in relation to the Claimant’s ability to do her role to a satisfactory standard from her employment with Nottinghamshire County Council continuing to her employment with the Respondent. That documentary trail also showed that the Respondent provided training and offered support and showed no evidence “that even suggests that anything that happened was because of her race or because she did a protected act”.[15]At paragraph 112.4 of his Judgment, Judge Adkinson said, “As things stand it seems that Miss Panesar’s case is no more than what she considers to be adverse things happening to her and she has a particular protected characteristic or can point to an alleged protected act. That alone is not going to be enough to reverse the burden of proof”. Further, at paragraph 112.5 the Judge said, “Even if the burden is moved, the long history disclosed in the documents suggests strongly there is a clear alterative explanation for what happened that is not connected to her race or any protected act”. The Judge then confirmed he was satisfied that the claims had little reasonable prospect of success and made a Deposit Order.[16]We further note that, prior to that Preliminary Hearing, the Respondent sent to the Claimant a without prejudice save as to costs letter giving her the opportunity to withdraw her claims without an application for costs being made against her if she did withdraw them at that stage. Despite this, and despite Employment Judge Adkinson’s conclusion that her claims had little reasonable prospect of success, the Claimant paid the deposit of £3,500 and continued to pursue those claims.[17]Following on from this, the Claimant then attended the first day of the hearing with a totally inadequate witness statement of less than two pages. Mr Blakey argued that a long witness statement was not necessary because the one provided made reference to all of the relevant facts. As recorded in the Judgment, however, in many instances the documents referred to in the statement in turn referred to other documents which would have made reliance on the witness statement totally impractical. The Tribunal allowed the Claimant to give evidence in chief purely in the interests of justice and this took several days during which time Mr Blakey had to be told on several occasions not to ask leading questions of the Claimant.[18]As recorded in the Judgment, the Tribunal found the Claimant’s evidence throughout to be totally unreliable. It was noted that on 40 occasions she could not remember incidents or events particularly when the documentary evidence did not support her claim. In particular, she sought to challenge written records of meetings saying they were inaccurate when at the time she had signed them and returned them to her Line Manager agreeing with them.[19]But arguably the most concerning aspect of the Claimant’s approach to this case, and in which Mr Blakey was clearly complicit, was the incident involving the Respondent’s service user who we referred to as “Mrs T”. A witness statement was signed by this vulnerable lady on the day on which the Employment Judge noticed the Claimant was not attending her own hearing and Mr Blakey said she was attending to another matter and would arrive later. We do not repeat here what is recorded in the Judgment apart from to note that this witness statement, which had apparently been drafted several weeks before the hearing, was not disclosed to the Respondent or the Tribunal in accordance with the Tribunal’s Orders, and because of Mrs T’s vulnerability it is highly unlikely she had any idea what she was signing. This was conduct which was so deeply concerning to the Respondent’s witnesses and Mrs T’s daughter, her carer, that a safe-guarding investigation had to be held.[20]It is not for the Tribunal to determine on what basis the Claimant chose to continue with her claims in circumstances where she had already been told they had little reasonable prospect of success. Orders of the Tribunal were not complied with but adding the incident with Mrs T into the equation, the Tribunal can only conclude that the Claimant’s conduct and pursuit of her claims was unreasonable and, in relation to Mrs T, abusive.
Issues
[21]As the Tribunal concluded, in relation to the burden of proof, the Claimant completely failed to show any facts from which we could potentially conclude that she had been the victim of race discrimination at the hands of the Respondent and its witnesses. This was noted in no uncertain terms by Employment Judge Adkinson at the previous Preliminary Hearing. Before us, her claim did not come close to navigating that first hurdle.
Findings of fact
[22]As mentioned above, we cannot speculate as to the Claimant’s motive in continuing with her claims. It may have been that this motivation fell within the scope of the Judgment in Benyon v Scadden [1999] IRLR 700 where Lindsay J said, “A party who, despite having had an apparently conclusive opposition to his case made plain to him, persists with the case down to the hearing in the “Micawberish” hope that something might turn up and yet does not even take such steps open to him to see whether anything is likely to turn up, runs a risk, when nothing does turn up, that he will be regarded as having been at least unreasonable in the conduct of his litigation”.[23]In the case before us, absolutely nothing changed between the Preliminary Hearing before Judge Adkinson and the substantive hearing before this Tribunal. THE CONDUCT OF MR BLAKEY
The Evidence
[24]In their application for costs at paragraph 12, the Respondent cites “Harvey, PI (1044) in setting out factors that might induce a Tribunal to award costs. These include excessive prolixity and time wasting, unduly lengthy cross-examination of witnesses, calling unnecessary witnesses and making outrageous and unsubstantiated allegations. Mr Blakey began the hearing by making an application for a postponement on the basis that the hearing was by video. He wrongly referred to the President’s Road Map for the future of video and attended hearings as being Presidential Guidance. He complained about the arrangement of the furniture in the Court Room. He complained about not being able to look witnesses in the eye when cross-examining them. Although representing the Claimant throughout these proceedings, he did try to argue that he did not represent her at one of the hearings relating to costs. He had failed to comply with Orders of the Tribunal and was clearly complicit as he had full knowledge in the issues surrounding Mrs T. His cross-examination of witnesses usually began with a recap of his own experience in Local Government and proceeded with questions which were so long that both the witness and the Tribunal completely lost track of the question. But towards the end of the hearing, whilst cross-examining one of the Respondent’s witnesses, he made a snoring sound seemingly because he did not like the answer to his question. This was frankly the most outrageous conduct and was disrespectful to the Respondent’s witness and the Tribunal.[25]In the Tribunal’s view, both the conduct of the Claimant and Mr Blakey was in the main unreasonable and on occasion abusive. RULE 39(5)[26]Rule 39(5) provides; “If a Tribunal at any stage following the making of the Deposit Order decides the specific allegations or arguments against the paying party for substantially the reasons given in the Deposit Order –(a) The paying party shall be treated as having acted unreasonably I pursing that specific allegation or argument for the purpose of Rule 76, unless the contrary is shown;(b) The Deposit shall be paid to the other party……”
The Hearing
[27]In this case the Tribunal found her evidence to lack credibility. In his Deposit Order, Employment Judge Adkinson said at paragraph 8, “The documentary evidence strongly suggests that the Respondent’s employees did not act or omit to act as they did because of the Claimant’s race or because she did a protected act. Rather they suggest a long standing history of poor performance existing before the Claimant’s first allegation of discrimination or harassment”. He continued at paragraph 9, “Thus. the Claimant’s case turns on her oral evidence being able to demonstrate that the documents either wrongly record what happened or do not reflect the real situation and that in fact the Respondent was motivated (at least in part) by her race or by her doing a protected act. There seems little prospect her oral evidence will overcome difficulties with the long history demonstrated by the documentary evidence”. At paragraph 10, EJ Adkinson struggled to see how the alleged detriments claimed by the Claimant were actually detriments in the first place.[28]It is abundantly clear that the Tribunal, having heard the Claimant’s oral evidence, entirely endorsed the reasons for the making of the Deposit Order. We found there was absolutely no evidence of race discrimination, harassment or victimisation nor was there any evidence of a fundamental breach of any implied or express term in the Claimant’s contract of employment. Thus, the very reasons for making a Deposit Order were entirely borne out in the substantive hearing and the fact that the Claimant pursued her claims was unreasonable. THE CLAIMANT’S MEANS[29]In exercising their discretion to make a costs order, a Tribunal may take into account the Claimant’s means. It took a considerable amount of time to obtain all the information ordered to be given. The Claimant is currently on sick leave as a result of her as yet undiagnosed illness. That apart, she owns a one bedroom flat near Birmingham City Centre with equity worth around £70,000 and the rental income is approximately double the monthly mortgage repayments of around £290. She did not give any evidence of savings despite having told Employment Judge Adkinson that she had around £9,000 in savings at the end of 2020. This amount would have been reduced by £3,500 in respect of the deposit he ordered and which she chose to pay.[30]Before this Tribunal she also introduced a new debt as a result of being the victim of a fraud some time ago. She gave no evidence on the amount outstanding in respect of which monthly payments of £350.00 are made to Stepchange. She offered no explanation as to amounts she has received from N Satpal or J Padam. As of 16 December 2022, she had a credit balance of £1,774.12 in her current account. As of this date she was also giving her husband pocket money of £140.00 per month. She also continues to pay monthly gym membership. She lives with her husband and his family members in London.[31]In the light of the financial information given by the Claimant, we consider she has sufficient assets to satisfy a Costs Order in the sum claimed by the Respondent. THE AMOUNT OF THE COSTS ORDER[32]The Respondent was put to significant costs in resisting the claims which were unreasonably brought and continued by the Claimant. Ms N Owen of Counsel was instructed to represent the Respondent and her fees alone approach £30,000. These fees have not been challenged nor, in our view, would such a challenge have a reasonable prospect of success. They were entirely reasonable given the work involved by Ms Owen.[33]The Respondent has sensibly restricted their costs application to £20,000 to avoid formal assessment in the Civil Courts. We consider those costs to be reasonable in all the circumstances and particularly given the unreasonable conduct of the Claimant. We are unanimously of the view that £20,000 should be ordered to be paid by the Claimant. The deposit paid by the Claimant of £3,500 has already been to the Respondent under Rule 39(6) and credit must be given for that payment. This leaves a balance of £16,500 to be paid by the Claimant.