Mrs R Khanam v University College Birmingham: 320001/2024

EMPLOYMENT TRIBUNALS

Case No 320001/2024

Between

Mrs R KhanamClaimant

University College Birmingham Heard: East London Tribunal Hearing Centre (remotely by video)Respondent

Before

Employment Judge S Shore

In person for claimant

Mr B Frew (instructed by Counsel) for respondent

Date 24 July 2025

JUDGMENT

The unanimous decision of the Tribunal is that: Direct discrimination because of sex (section 13 Equality Act 2010)

[1]The claimant’s claim that on 23 November 2023, Paul Massiah told the claimant that her employment was not sustainable due to her childcare commitments fails.

[2]The claimant’s claim that she was dismissed by the respondent because of the protected characteristic of sex fails. Harassment related to sex (section 26(1) Equality Act 2010)

[3]The claimant’s claim that on 23 November 2023, Paul Massiah told the claimant that her employment was not sustainable due to her childcare commitments fails. Harassment related to race (s.26(1) Equality Act 2010)

[4]The claimant’s claim that on or around 6 November 2023, Sangeeta Ram made fun of the claimant’s accent or mispronunciation of the name of one of her English 1 of 20 colleagues and commented that “these people pronounce this name that way: fails.

[5]The claimant’s claim that she was dismissed by the respondent because of the protected characteristic of race fails. Breach of contract (Notice pay) (Article 3 The Employment Tribunals Extension of Jurisdiction (England & Wales) Order 1994)

[6]The claimant’s claim of breach of contract fails.

[7]The Tribunal does not need to go on to consider remedy because we have dismissed all the claimant’s claims.

REASONS

[1]The claimant began her employment with the respondent on 23 October 2023 as a Lecturer in the respondent’s Business School. The claimant’s case, as set out in paragraph 5.1 of her ET1 (Page [4] of the hearing bundle), is that she was dismissed on 28 November 2023. In the narrative section of her ET1 (paragraph 8.2 of her ET1 [7]), the claimant stated that the respondent forced her to resign from her role and did not allow her to return to work after 28 November 2023.

[2]The Case Summary contained in the Record of Preliminary Hearing prepared by EJ Othen following a preliminary hearing on 29 April 2024 recorded that the claimant agreed that her EDT was 18 January 2024.

[3]The respondent’s case has always been that the claimant resigned on 11 December 2023 and her employment ended on 18 January 2024.

[4]The claimant alleges that she was subjected to harassment and direct discrimination (pleaded in the alternative) because of sex in a conversation with a colleague, Paul Massiah, on 23 November 2023. The claimant alleges that she was subjected to harassment related to race by a colleague, Sangeeta Ram, on or about 6 November 2023.

[5]The claimant also alleges that she was not paid the correct amount of notice pay on termination of employment. This is a claim for breach of contract under The Employment Tribunals Extension of Jurisdiction (England & Wales) Order 1994.

[6]The claimant’s ET1 indicated a claim of unfair dismissal.

[7]The claimant alleges that her resignation was a constructive dismissal that was an act of direct sex discrimination.

[8]Early conciliation began on 11 December 2023 and ended on 21 December 2023. The claimant submitted her claim on 1 January 2024. 2 of 20

[9]On 23 February 2024, the Tribunal accepted the claimant’s claim and sent the parties a Notice of Claim and a Notice of a preliminary hearing to he held on 29 April 2024. The Tribunal also sent the claimant a Notice of Strike Out Warning because she did not have two years’ continuous service with the respondent as required by section 108 of the Employment Rights Act 1996. The claimant was given until 6 March 2024 to give reasons in writing why her claim should not be struck out.

[10]The respondent filed its response on 20 March 2024.

[11]At the first preliminary hearing before EJ Othen on 29 April 2024, the claimant said she had submitted a second ET1 on 19 April 2024. The claimant told EJ Othen that she had issued a second claim because there was a word limit on the claim form that had not allowed her to set out her original claim in full. EJ Othen suggested to the claimant that she could withdraw the second claim and make an application to amend the first claim. The claimant was advised to look at the leading case on applications to amend: Selkent Bus Company Limited v Moore

[1996] ICR 186

and Guidance Note 1 of the Presidential Guidance on Case Management.

[12]The claimant had not provided an acceptable reason why her unfair dismissal claim should not be struck out within the given timeframe and her claim of unfair dismissal was struck out by EJ Othen in a Judgment dated 3 May 2024. That strike out is the subject of an ongoing appeal to the EAT by the claimant.

[13]EJ Othen set out a List of Issues (questions that the final hearing would have to determine) that only included the claim of harassment related to race that we have heard and a claim for notice pay. EJ Othen also set up a second preliminary hearing.

[14]The second preliminary hearing was held on 18 July 2024 before EJ Park, who produced a Case and Hearing Summary dated 22 July 2024 [31-43]. The Record notes that the claimant had sent the second ET1 to the East London Employment Tribunal by email. This is not a method of submitting a claim that is accepted. EJ Park explained to the claimant that her second claim had not been accepted or started. However, it could be treated as an application to amend the first claim.

[15]The second claim included the allegation of sex discrimination that is before us. The claimant argued that her dismissal was automatically unfair because of a health and safety reason, which does not require a claimant to have two years’ service.

[16]After the hearing, EJ Park re-read the claimant’s second ET1 and saw reference to matters that could be allegations of disability discrimination. The case management order included orders for the claimant to provide further information about her claims and gave leave for the respondent to provide an amended response.

[17]The claimant was told that the issues in the case did not include a claim for automatic unfair dismissal and that she would have to make an application to amend her claim to proceed with an automatic unfair dismissal claim. 3 of 20

[18]EJ Park listed the complaints as the four claims that are before us. Paragraph 28 of EJ Park’s order [39] stated that if a party thought the List of Issues was wrong or incomplete, they must write to the Tribunal and the other side by 8 August 2024. If they did not write within the prescribed period, the List would be treated as final unless the Tribunal decided otherwise. Neither party made any application to amend the List before 8 August 2024 or after that date.

[19]EJ Park made the following case management orders (we have only set out the most relevant orders): 20.1. Listing the final hearing for 25-28 February 2025 in person; 20.2. Setting a Timetable for the final hearing; 20.3. Requiring the claimant to apply to amend her claim if she wished to make a claim of automatic unfair dismissal “as soon as possible”; 20.4. Requiring the claimant to make an application to amend if she wished to claim disability discrimination “as soon as possible”; 20.5. Giving the respondent leave to file an amended response by 15 August 2024; 20.6. Requiring the parties to write to the Tribunal and each other if either thought that the List of Issues was wrong or incomplete; and 20.7. Advising the parties that all witnesses at the final hearing (including the claimant) required a witness statement and that these should be exchanged by 12 December 2024.

[21]The claimant did not make an application to amend her claim to include automatic unfair dismissal or disability discrimination.

[22]The claimant sent a bundle of documents to the Tribunal on 27 January 2025. This was not the bundle prepared by the respondent.

[23]The respondent requested a witness order in respect of Paul Massiah on 11 February 2025. The request was not actioned by the Tribunal. Mr Frew renewed the application on the first morning of the hearing. We will return to the application below.

[24]The parties produced a hearing bundle that consisted of 193 pages. If we refer to pages in the bundle, the page number(s) will be in square brackets (e.g. [43]).

[25]We were provided with the witness statement of the claimant, dated 24 February 2025, that consisted of 19 paragraphs over four pages.

[26]On 24 February 2025, the Tribunal notified the parties that, due to lack of judicial resource, the final hearing was converted to a remote video hearing. They were also advised that only one non-legal member was available, but the parties could object to a panel of two and ask for the Employment Judge to deal with the case sitting alone. 4 of 20

[27]We were provided with witness statements from the respondent’s witnesses: 27.1. Elaine Limond, who was Vice-dean of the respondent’s Business School at the time with which this claim is concerned. Her witness statement consisted of 14 paragraphs over 4 pages. 27.2. Joanne Oguzie, who was Executive Director of Human Resources for the respondent at the time with which this claim is concerned. Her witness statement dated 31 January 2025 consisted of 19 paragraphs over 4 pages; and 27.3. Garrett Edwards, who was Senior Lecturer in International Partnerships in the respondent’s Business School. Hs witness statement consisted of18 paragraphs over 3 pages.

[28]As explained below, we heard from Colin Hanson-New for the respondent, as he was only identified during the hearing as a potentially relevant witness in the claimant’s witness statement.

Issues

[29]The List of Issues agreed by the parties at the preliminary hearing on 18 July 2024 are as follows: 1. Direct sex discrimination (Equality Act 2010 section 13)1.1 Did the respondent do the following things: 1.1.1 On 23 November 2023 Mr Paul Massiah told the claimant that her employment was not sustainable due to her childcare commitments.

1.2 Was that less favourable treatment? The Tribunal will decide whether the claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the claimant’s. If there was nobody in the same circumstances as the claimant, the Tribunal will decide whether they were treated worse than someone else would have been treated. The claimant has not named anyone in particular who they say was treated better than they were.

1.3 If so, was it because of sex? 2. Harassment related to sex (Equality Act 2010 section 26) 5 of 20

2.1 Did the respondent do the following things: 2.1.1 On 23 November 2023 Mr Paul Massiah told the claimant that her employment was not sustainable due to her childcare commitments.

2.2 If so, was that unwanted conduct?

2.3 Did it relate to sex?

2.4 Did the conduct have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant?

2.5 If not, did it have that effect? The Tribunal will take into account the claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect. 3. Harassment related to race (Equality Act 2010 section 26)

3.1 Did the respondent do the following things: 3.1.1 On or around 6 November 2023, Sangeeta Ram made fun of the claimant’s accent or mispronunciation of the name of one of her English colleagues and commented that “these people pronounce this name that way”.

3.2 If so, was that unwanted conduct?

3.3 Did it relate to race?

3.4 Did the conduct have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant?

3.5 If not, did it have that effect? The Tribunal will take into account the claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect. 4. Discriminatory dismissal

4.1 Was the claimant dismissed by the respondent or did she resign?

4.2 If the respondent dismissed the claimant, Was that less favourable 6 of 20 treatment? The Tribunal will decide whether the claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the claimant’s. If there was nobody in the same circumstances as the claimant, the Tribunal will decide whether they were treated worse than someone else would have been treated. The claimant has not named anyone in particular who they say was treated better than they were.

4.3 If so, was it because of sex?

4.4 Alternatively, did the respondent do the following things:4.4.1 subject the claimant to direct sex discrimination or harassment related to sex as set out above;

4.4.2 subject the claimant to harassment related to race as set out above.

4.5 Did that breach the implied term of trust and confidence? The Tribunal will need to decide:4.5.1 whether the respondent behaved in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the claimant and the respondent; and

4.5.2 whether it had reasonable and proper cause for doing so.

4.6 Did the claimant resign in response to the breach? The Tribunal will need to decide whether the breach of contract was a reason for the claimant’s resignation.

4.7 Did the claimant affirm the contract before resigning? The Tribunal will need to decide whether the claimant’s words or actions showed that they chose to keep the contract alive even after the breach.

4.8 If the claimant was dismissed, what was the reason for the breach of contract? So was the dismissal direct discrimination on the grounds of sex and/or race? 5. Remedy for discrimination or victimisation 7 of 20

5.1 Should the Tribunal make a recommendation that the respondent take steps to reduce any adverse effect on the claimant? What should it recommend?

5.2 What financial losses has the discrimination caused the claimant?

5.3 Has the claimant taken reasonable steps to replace lost earnings, for example by looking for another job?

5.4 If not, for what period of loss should the claimant be compensated?

5.5 What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that?

5.6 Has the discrimination caused the claimant personal injury and how much compensation should be awarded for that?

5.7 Is there a chance that the claimant’s employment would have ended in any event? Should their compensation be reduced as a result?

5.8 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?

5.9 Did the respondent or the claimant unreasonably fail to comply with it?

5.10 If so is it just and equitable to increase or decrease any award payable to the claimant?

5.11 By what proportion, up to 25%?

5.12 Should interest be awarded? How much? 6. Breach of contract/Notice pay

6.1 What was the claimant’s notice period? The claimant alleges this was three months.

6.2 Did the respondent dismiss the claimant?

6.3 If not, did the claimant resign?

6.4 Did the claimant inform the respondent that she wanted her employment to terminate, and her notice expire on 18 January 2024? If so, was this request accepted by the respondent such that it varied the claimant’s contractual notice entitlement? 8 of 20

6.5 Was the claimant paid in full for that notice period?

[30]As we did not find in favour of the claimant on any of her claims, we do not need to determine remedy.

Law

[31]The statutory law relating to the claimant’s claims of discrimination is contained in the Equality Act 2010 (EqA). The relevant sections of the EqA were sections 13 (direct discrimination); 26 (harassment), and 136 (burden of proof). The relevant provisions are set out here: 13. Direct discrimination 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. If the protected characteristic is disability, and B is not a disabled person, A does not discriminate against B only because A treats or would treat disabled persons more favourably than A treats B. The relevant protected characteristics are— (a) age; (b) disability;

(d) race

(e) religion or belief;

(f) sex;

(g) sexual orientation. 26. Prohibited conduct (Harassment) A person (A) harasses another (B) if (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. In deciding whether conduct has the effect referred to, each of the following must be taken into account— 9 of 20 (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect. 136. Burden of proof (1) This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision. (4) The reference to a contravention of this Act includes a reference to a breach of an equality clause or rule. (5) This section does not apply to proceedings for an offence under this Act. (6) A reference to the court includes a reference to— (a) an employment tribunal…

[32]The relevant statutory law for the breach of contract (notice pay) claim is Articles 3 and 7 of the 1994 Order: Extension of jurisdiction 3. Proceedings may be brought before an employment tribunal in respect of a claim of an employee for the recovery of damages or any other sum (other than a claim for damages, or for a sum due, in respect of personal injuries) if—(a) the claim is one to which section 131(2) of the 1978 Act applies and which a court in England and Wales would under the law for the time being in force have jurisdiction to hear and determine;

(b) the claim is not one to which article 5 applies; and

(c) the claim arises or is outstanding on the termination of the employee’s employment. Housekeeping and Hearing Day One 10 of 20

[33]We started the hearing at 10:00am on the first day. We had started our reading of the bundle and witness statements but still had at least 90 minutes of reading to do.

[34]The claimant was representing herself, as she had done throughout these proceedings. We began by taking he views of the parties on the Tribunal sitting with two members. Neither the claimant nor Mr Frew had any objection to our continuing with two members.

[35]As the claimant is unrepresented, I reminded her that the Tribunal operates on a set of Rules (I have set out the link to those Rules below). Rule 3 sets out the overriding objective of the Tribunal Rules (their main purpose), which is to deal with cases justly and fairly. It is reproduced here: Overriding objective 3.—(1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly.

(2) 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.

(3) The Tribunal must seek to give effect to the overriding objective when it— (a) exercises any power under these Rules, or (b) interprets any rule or practice direction.

(4) The parties and their representatives must— (a) assist the Tribunal to further the overriding objective, and (b) co-operate generally with each other and with the Tribunal.

[36]There had been mention of the claimant being hearing impaired. She confirmed that she could hear us with the use of hearing aids and asked for people to speak slowly as a reasonable adjustment.

[37]Mr Frew confirmed that he wished to renew the application for a Witness Order in respect of Paul Massiah. The claimant had not been sent a copy of the original 11 of 20 application, but there is no requirement to send a coy to the other party when applying for a Witness Order.

[38]Mr Frew’s submissions were: 38.1. Mr Massiah was a former employee of the respondent against whom the claimant made one factual allegation that was the basis of her claims of direct discrimination because of sex and harassment related to sex; 38.2. Mr Massiah no longer worked for the respondent; 38.3. The respondent had contacted Mr Massiah and had taken a witness statement from him. The statement had been sent to the Tribunal and the claimant; 38.4. Mr Massiah was the only person present with the claimant when the alleged act happened; 38.5. After taking Mr Massaih’s witness statement, he had not replied to any further contact from the respondent; and 38.6. It was in the interests of justice and in furtherance of the overriding objective to grant the application.

[39]The claimant had no objection to the application and commented that she thought Mr Massiah should attend.

[40]Mr Frew suggested that we might begin the hearing proper at 10:00am on the second morning because the claimant’s witness statement, which had only been served on the respondent on 24 February, had made allegations about three current staff members of the respondent: 40.1. Pooja Kochhar in paragraph 13 of the claimant’s witness statement; 40.2. Beverley Compaoré in paragraph 17 of the claimant’s witness statement; and 40.3. Someone identified as “Mr Peter” in paragraph 3 of the claimant’s witness statement.

[41]Mr Frew requested the delayed start to enable the respondent to speak to the three employees and determine whether it wished to call them as witnesses.

[42]We took a break to consider the application and the matters raised by Mr Frew from 10:25am to 10:40am.

[43]On the resumption, we granted the application for a Witness Order and arranged for the Tribunal to send the Witness Order to Mr Massiah by post and email compelling him to attend at 10:00am on the third morning. He did not attend. The respondent made no application to adjourn to facilitate his attendance, so we continued without him. 12 of 20

[44]We confirmed that we would start the evidence on the second morning and would break after we had dealt with the remaining case management matters.

[45]We ordered that if the respondent wished to call additional witnesses, their witness statements and an application should be sent to the claimant and the Tribunal by 9:30am on the second morning.

[46]We advised the parties that the Tribunal would not sit after 2:30pm on the third day. In fact, we would not sit after 1:45pm. Day 2

[47]The respondent submitted an application to call the three additional witnesses listed above before 9:30am on the second morning with copies of their witness statements. A copy of the application was sent to the claimant. The respondent had identified the witness referred to as “Mr Peter” by the claimant as Colin Hanson-New.

[48]The hearing started at 10:00am with the respondent’s application, which was opposed by the claimant on the grounds that the witness statements had been produced late.

[49]We allowed the application on the following grounds: 49.1. We considered that the witnesses would assist the Tribunal and parties to achieve a just and fair hearing; 49.2. The claimant had not named any of the witness in her ET1 or at either of the preliminary hearings. Her assertions that she had were not corroborated by the documents; 49.3. We found that the respondent should be allowed to defend itself against new allegations of fact because the Tribunal could make inferences from their evidence; 49.4. The claimant had only submitted her witness statement on the day before the final hearing was due to start. Her excuse that she did not realise she needed a witness statement was not credible; and 49.5. The witnesses were direct witnesses of fact to the allegations made by the claimant.

[50]The claimant gave evidence on affirmation (as did all the witnesses) and relied on her witness statement. She began her evidence at 10:24am. We took a break between 10:30 and 11:40am. The claimant finished her evidence at 12:40pm and we decided to take lunch.

[51]Prior to lunch and after lunch we spoke to the claimant about cross-examination. We made it clear to the claimant that if she did not challenge a witness on a fact that she disagreed with, we would be likely to find that the evidence was unchallenged and credible. 13 of 20

[52]On the resumption at 1:40pm, we heard evidence from Garrett Edwards, who relied on his witness statement. The claimant cross-examined Mr Garrett until 1:59pm. Mrs McLaughlin asked the witness one question. There was no cross-examination. The witness was released at 2:01pm.

[53]Pooja Kochhar gave evidence from 2:05pm and relied on her witness statement dated 25 February 2025 which consisted of 5 paragraphs on one page. The witness has been employed as a Senior Lecturer in the respondent’s Business School since 2022.

[54]The claimant cross-examined Mrs Kochhar until 2:14pm, when she was released.

[55]Colin Hanson-New gave evidence from 2:14pm and was cross-examined until 2:18pm, when he was released.

[56]Joanne Oguzie gave evidence from 2:20pm and was asked one supplementary question by Mr Frew. She was cross-examined until 2:30pm. Mr Frew asked the witness one re-examination question. The witness was released at 2:35pm.

[57]We took a break from 2:35pm to 2:45pm. On the resumption, Elaine Limond gave evidence. Mr Frew asked her one supplementary question until 2:48pm and the claimant cross-examined the witness from 2:48pm to 2:51pm. The witness was released.

[58]We ended the day’s hearing at 2:55pm after we had spoken to the parties about closing submissions, which we intended to hear at the start of the third day. We asked the parties to submit and exchange closing submissions by 9:30am the following morning. The respondent complied with the order. The claimant submitted her submissions at 10:02am.

[59]We started the hearing at 10:06am. At that time, we had not received the claimant’s closing submissions. Mr Frew confirmed that Mr Massiah had not attended, and the respondent did not intend to call him or seek a postponement to enable his attendance.

[60]The claimant said she had sent her closing submissions ten minutes earlier, so we took a break to read them (we had already read Mr Frew’s submissions) and restarted the hearing at 10:20am.

[61]Mr Frew spoke to his submissions for just under ten minutes. The claimant spoke to her submissions for just under five minutes. We closed the hearing at 10:35am and began to make our decision. We asked the parties to be ready to hear the Judgment and Reasons the following day. Day 4

[62]We started the hearing at 2:00pm on the fourth day. We delivered or oral Judgment and Reasons that dismissed all the claimant’s claims. Neither party asked for written reasons.

[63]The written Judgment dated 28 February 2025 was sent to the parties on 4 March 2025. The claimant applied for a reconsideration of the Judgment and written 14 of 20 reasons on 14 March 2025. I can only apologise for the delay in supplying these reasons and the reconsideration. The delay has been caused by personal circumstances and my ongoing family duties, health issues, and my duties as an employment Judge.

[64]In respect of the claimant’s request for reconsideration of our decision, I find that she has not raised any matters in her application that raise relevant issues that could affect our findings in her case. The facts we found pointed us to the decision we made that the claimant took on a job in Birmingham whilst living in Tower Hamlets. She could not find accommodation in Birmingham and continued to commute daily from her home to her place of work after a brief initial period in hotel and Airbnb accommodation. She resigned her employment. We found that none of the things she said were examples breaches of the duty of trust and confidence were made out factually, so I find that that reconsideration has no reasonable prospect of success.

Findings of fact

[65]All findings of fact were made on the balance of probabilities. If a matter was in dispute, we will set out the reasons why we decided to prefer one party’s evidence over the other. If there was no dispute over a matter, we will either record that with the finding or make no comment as to the reason that a particular finding was made. We have not dealt with every single matter that was raised in evidence or the documents. We have only dealt with matters that we found relevant to the issues we have had to determine. No application was made by either side to adjourn this hearing to complete disclosure or obtain more documents or call additional evidence, so we have dealt with the case based on the documents produced to us, the witness evidence produced, the oral evidence, and the claim as set out in the List of Issues.

[66]We should record as a preliminary finding that some relevant facts were not disputed, not challenged, or were agreed by the parties. We will identify such facts in our findings below.

[67]The claimant is a woman of Bangladeshi nationality and ethnicity. Those are the protected characteristics upon which she relies in her claims of sex and race discrimination. This is undisputed. At all times during this case, the claimant has resided in Tower Hamlets, East London. This was agreed by the claimant in crossexamination. The claimant is married and has a child who was four years old at the time with which this case is concerned. The claimant lives with her husband and child.

[68]The respondent is a university based in Birmingham.

[69]The claimant was interviewed for a post as a Lecturer at the respondent in April or May 2023 – the precise date is not important. The claimant was offered the role but had to give four weeks’ notice to her previous employer. This evidence was not disputed. It was envisaged that the claimant would start work with the respondent in July 2023 in time for the new term that was due to start in September 2023. This evidence was agreed by the claimant. 15 of 20

[70]It was not disputed that the claimant was given a contract of employment dated 29 June 2023 [70-82] that the claimant signed on 20 July 2023 [82]. The relevant clauses of the contract were: 70.1. The claimant was due to start work on 23 October 2023, subject to DBS clearance; 70.2. The claimant was contracted to work 37 hours per week; 70.3. The claimant’s place of work was the respondent’s premises at Summer Row, Birmingham; 70.4. The claimant’s appointment was subject to a probationary period of 12 months during (Clause 21.1) which the respondent could terminate the claimant’s employment by giving one week’s notice. We find the claimant’s evidence in paragraph 1 of her witness statement that she was entitled to three months’ notice to terminate her employment to be incorrect; 70.5. The claimant was required to give three months’ notice to terminate her employment.

[71]It was always the claimant’s intention that she and her family would relocate to Birmingham. At the time that she was offered the job with the respondent, it was her intention to start a PhD course at Birmingham University in September 2024. This evidence was agreed between the parties. It appears at paragraph 2 of the claimant’s witness statement.

[72]We are not concerned with the claimant’s difficulties in seeking accommodation in Birmingham as we find it not to be relevant for her claim. The undisputable fact is that the claimant was never able to relocate to Birmingham. That is all that needs to be said on the matter.

[73]After an initial period of 9 days when the claimant stayed in hotels and Airbnb accommodation, she undertook a daily commute from Tower Hamlets to the Birmingham and back. We have no doubt that this would have put a heavy strain on the claimant and her family life. She said as much in evidence.

[74]We find that the evidence of Elaine Limond about the claimant’s lateness for sessions was more likely to be true than the claimant’s evidence that she was only ever late for a session once. Ms Limond’s oral evidence in answer to a supplementary question was that she had looked at the respondent’s records of the claimant entering the building and had found four instances of lateness prior to 23 November 2023. Three of the instances had been where the claimant had arrived during a scheduled session and one instance had been after the claimant’s first session had ended. We prefer Ms Limond’s evidence because we found her to be a more credible witness than the claimant on the matter. The claimant’s evidence was inconsistent; Ms Limond’s was not.

[75]The claimant alleges that on or around 6 November 2023, she was subjected to harassment related to her race by a colleague, Sangeeta Ram. The List of Issues sets the allegation as follows: 16 of 20 “On or around 6 November 2023, Sangeeta Ram made fun of the claimant’s accent or mispronunciation of the name of one of her English colleagues and commented that “these people pronounce this name that way”.”

[76]In paragraph 5 of her witness statement, the claimant alleged: “On 6/11/22, I was looking for Garret [Edwards] as I had to cover his session during his Hong Kong block visit. So, I asked where Gareth was. The Senior Lecturer, Puja [Kochhar] asked who is Grath, I showed her Garret’s desk that time Ms Sangeeta was working on her desk and reply Grath, yes this is how these people pronounce it, I was so embarrassed at the time…when Mr Garret back to his desk I requested him to write his name for me.”

[77]The claimant’s allegation made to the respondent included an allegation that Ms Ram had laughed and either corrected or mimicked her “in an accent”.

[78]Mrs Kochhar was called to give evidence on the matter as she had been named as a witness to the incident for the first time in the claimant’s witness statement. In paragraph 5 of her statement, she stated: “At no time did I witness or hear any exchange relating to Garrett Edward’s name being pronounced incorrectly. I do not recall being in the room when the Claimant asked where Gareth was. I also do not recall asking the Claimant who she was referring to when she referred to “Gareth”; I simply do not remember this conversation ever taking place. I have never heard anyone mimic the Claimant's accent, nor make a comment about her accent (including Sangeeta Ram). This is something that I would take very seriously, and would have taken some action, if it had taken place.”

[79]We find that the claimant said in cross-examination that Ms Ram neither laughed at her nor mimicked her.

[80]We find the claimant’s factual allegations to be inconsistent across time and therefore they do not meet the standard of proof required. We make that finding because of: 80.1. The claimant’s evidence throughout was frequently inconsistent and lacking in credibility; 80.2. Our finding that Mrs Kochhar was a credible witness and more likely to have given an accurate account; and 80.3. The claimant’s statement that she went back to Mr Edwards when he returned to his desk on or about 6 November 2023. His unchallenged evidence was that he was away in Hong Kong between 2 November 2023 and 16 November 2023.

[81]We find on the balance of probabilities that Ms Ram did not do the acts complained of in the List of Issues on or about 6 November 2023. 17 of 20

[82]The claimant agreed that she was late for work on 23 November 2023 by 10 minutes. It was agreed that on 23 November 2023, Paul Massiah, Head of School, spoke to the claimant about her lateness.

[83]The claimant alleges that the conversation she had with Mr Messiah on 23 November was an act of direct discrimination because of her sex and of harassment related to her sex. The issues identified in respect of the two claims rely on the same facts. “On 23 November 2023 Mr Paul Massiah told the claimant that her employment was not sustainable due to her childcare commitments.”

[84]In paragraph 8 of her witness statement, the claimant alleged that Mr Massiah met her “with a lot of anger.” She alleges that Mr Massiah told her that because she commuted from London, she was “not sustainable for the role”. The claimant added that Mr Massiah “continued deliberately blame my child (sic) (you are not sustainable for the role as you have four years child) (sic) I was not in your interview so, I don’t know anything about you. If I know all (sic) I might not take you for the role.”

[85]We found the claimant’s evidence on this allegation to be internally inconsistent between the written evidence, the allegation, and her oral evidence and inconsistent with the likelihood of what happened. We make that finding because: 85.1. Whilst we can give Mr Massiah’s statement little weight, it makes more logical sense than the claimant’s evidence. 85.2. We have found that on 23 November 2023, the claimant was late for work for the fifth time since stating work exactly a month earlier; 85.3. We take judicial notice that Universities are sensitive to matters such as Lecturers not attending lectures on time because of complaints that can be raised by students who have paid thousands of pounds for courses; 85.4. We find that any manager in Mr Massiah’s position would be concerned by the claimant’s frequent lateness; 85.5. We find that Mr Massiah was unlikely to have approached the claimant on 23 November for that occurrence of lateness alone. His evidence was that he was aware of previous instances; 85.6. We find that it was perfectly legitimate for Mr Massiah to speak to the claimant about her late attendance. In fact, we would have been surprised if he hadn’t; 85.7. We find that it unlikely that Mr Massiah told the claimant that her having a four-year-old child made her employment unsustainable; 85.8. We note that the claimant alleges that in her follow-up meeting with Mr Messiah on 27 November 2023, he told her that she was not sustainable for the role because she was travelling from London. The 18 of 20 claimant then comments “So I am not sustainable for the role as the mother of a 4-year-old child”. It is the claimant that connects her status as a mother to her difficulties in attending work on time.

[86]We find that on the balance of probabilities, Mr Massiah did not do the act complained of by the claimant in the List of Issues on 23 November 2023.

[87]The claimant met with Mr Messiah again on 27 November 2023. The claimant asserts that Mr Massiah dismissed her on that date in her ET1 and in paragraph 10 of her statement. We find that the clamant agreed that she was not dismissed on 27 November 2023 in the preliminary hearing with EJ Outen, so her repeated assertion that contradicts that undermines her credibility.

[88]It is indisputable that the claimant never attended work again after 27 November 2023. She agreed in answer to questions that she never visited her GP and never obtained a MED3 certificate to certify her absence due to ill health.

[89]The claimant asserted that she undertook some work from home between 28 November and 7 December but did no work after that date.

[90]We find that Mr Massiah did not dismiss the claimant on 27 November on our findings above. We find that Mr Massiah did not offer the claimant home working and work marking in place of her role as a Lecturer. There is no evidence that such an offer was made other than the claimant’s assertions, which we find to be vague, inconsistent, and not supported by any documents.

[91]We find Ms Oguzie’s evidence of what happened between 27 November 2023 and 22 January 2024 to be credible because the claimant did not challenge it.

[92]We find that the exchange of emails between Mr Oguzie and the claimant in December 2023 to be instructive and a reliable record of what happened. We find that the claimant did not help herself in the correspondence with Ms Oguzie because she never confirmed whether she was on ill-health absence or just refusing to work. We find that had the respondent wished to, it could probably have instigated disciplinary proceedings against the claimant for either unauthorised absence or failure to comply with its absence policy.

[93]We find no evidence that the respondent was forcing the claimant to resign. The claimant stopped attending work on 27 November 2023. We find no fault lies with the respondent for that failure. The clamant had a wish to change her contract so she could work form home making or doing other paperwork. We find that there was no agreement or compunction on the respondent to provide that work.

[94]We find that the claimant attended the respondent’s premises on 7 December and spoke to Ms Oguzie. We find that the claimant requested unpaid leave on 8 December 2023 until she relocated [100]. We find that Ms Oguzie agreed to the claimant’s request but out an end date to the agreement of 8 January 2024 [102].

[95]We find that the claimant resigned and was not dismissed. We make that finding because: 19 of 20 95.1. We find that the respondent did none of the acts that the claimant says were, taken together, that could be found to be conduct by the respondent that was calculated or likely to destroy or seriously damage the trust and confidence between the claimant and the respondent without reasonable and proper cause for doing so. Put simply, the claimant did not show that she had good cause to resign. 95.2. We find that the claimant wrote to Ms Oguzie on 11 December 2023 [148] stating: “I have not said I didn’t want to work beyond 22/12/2023. You forced me to that date. I sent an email this morning and clearly mentioned until 18/01/2024 I would like to continue working … So, please don’t force me to accept your word or what I have not said to you”. 95.3. We find the above to be a confirmation of resignation on 18 January 2024. 95.4. We find that the above quote is evidence that the claimant gave notice of termination, which defeats her claim for notice pay.

Summary

[96]As we have not found in favour on any of the claimant’s claims, we do not need to list a remedy hearing.