Mr M Kumar v The Princess Alexandra Hospital NHS Trust: 3200254/2024
EMPLOYMENT TRIBUNALS
Case No 3200254/2024
Between
Mr M KumarClaimantThe Princess Alexandra Hospital NHS TrustRespondent
Before
Employment Judge L Townley
Members
Ms HouzerMrs JearyIn person for claimantDate 14 February 2025
REASONS
[1]By claim presented on 30 January 2023, after an ACAS early conciliation period between 1 and 3 August 2023 Mr Mohit Kumar (the Claimant) brought claims for unfair constructive dismissal (s 95(1)(c) of the Employment Rights Act 1996), breach of contract/redundancy payment, and harassment on the grounds of race (section 26 of Equality Act 2010 (EqA)). The Claim is brought against The Princess Alexandra Hospital NHS Trust (the Respondent), a general hospital providing acute diagnostic and outpatient services in Harlow, Essex.[2]The hearing took place at the East London Employment Tribunal between 11 and 14 Feb 2025 before Judge Townley, Ms Houzer and Mrs Jeary. Evidence was heard on 11 and 12 February. The panel took time for deliberation and an oral judgment was delivered on 14 February 2025. The solicitors for the Respondent provided the tribunal with a bundle consisting of 512 documents plus witness statements. The Claimant appeared in person and Mr Smith of Counsel represented the Respondent.[3]At the hearing the Claimant gave evidence on his own behalf. Mr Michael Meredith (Director of Strategy and Estates), Mr Robert Ayers (Deputy Director) and Mr Shahid Sardar (Associate Director) gave evidence for the Respondent. The Claimant and the Respondent’s witnesses gave their evidence under affirmation. Submissions[4]Both parties made helpful oral submissions at the hearing which have been carefully considered by the Tribunal.
Findings of fact
[5]The Claimant commenced employment with the Respondent on 1 March 2018 and his employment terminated on 31 October 2023, the Claimant having given three months’ notice to the Respondent, in accordance with his contract of employment by e-mail dated 1 August 2023, in which he stated his intention to resign with his last day of employment being 31 October 2023.[6]The Claimant worked within the Estates Department of the Respondent. That department was responsible for the upkeep and maintenance of buildings and capital funded builds and critical infrastructure. It is common ground that since around 2018 there were severe under-staffing problems within the Estates Department, which was experiencing difficulties in recruiting and retaining staff. A business case requesting funding for the Department presented in 2023 states that, during the past five years, the Estates’ service had its staffing levels reduced to a point where it was limited to providing first line reactive services only. This was indicated to be down to lack of investment in the estates management structure, failure to recruit substantive staff, and a dependency on contractors, which resulted in a reduction in the workforce by over 50%. This left the department unprepared with no resilience to provide a strategically aligned service.[7]The Claimant’s job title, which he used to sign e-mails and which was used by his colleagues in the Estates Department, was ‘Strategic Head of Estates’. His job was re-evaluated under the NHS ‘Agenda for Change’ (a national process) to ‘General Manager of Estates’. This involved a ‘re-mapping’ and an addition of responsibilities. As a result, the Claimant was moved from a Band 8B to a Band 8C on 20 October 2020. There were only two grades above this in terms of seniority within the Department. Therefore the Claimant occupied a senior management position.[8]There was an out-of-hours ‘on call’ rota in operation within the Estates Department. During December 2022, the Claimant raised issues within his management chain about his being on-call constantly since August 2022. At this time he also asked for an update on his request for other staff to be authorised to be added to the ‘on call’ rota.[9]In February 2023 the Claimant went on annual leave for four weeks to assist his elderly father who was unwell in India. Due to the understaffing of the Estates Department, Simon Hughes continued an ongoing recruitment drive for staff in the Claimant’s absence.[10]During the material time, Simon Hughes was the Associate Director of the Estate’s Department and the Claimant’s Line Manager. Mr Hughes has since left the employment of the Respondent and has not been involved in this tribunal. On 12 April 2023, the Claimant received an e-mail from Simon Hughes in which Mr Hughes gives details of a conversation that he had with the Claimant, the contents of which the Claimant disputes. The email states: ‘I am emailing to summarise our conversation on 03.04.23. I wanted to start by thanking you for approaching me to initiate the conversation and for your openness and honesty in relation to your concerns regarding your ability to fulfil your current role of Head of Estates, I understand that you have been overwhelmed with the role … as a result of the concerns we identified and discussed we talked about options going forward to support your performance at work. In particular, we spoke about changing roles … I explained that this role would likely attract a 8b band/pay. You informed me that you felt you would be better suited to a deputy role and I explained that I would discuss it with Michael [Meredith]. I would like to meet again to follow up on this conversation and propose that we meet on 17.4.23.’[11]The Claimant was not at work on 12 April, but he sent an email to Michael Meredith (Director of Strategy and Estates) raising a formal grievance against Simon Hughes, indicating that Mr Hughes had approached him in the smoking shelter and had informed him that he no longer had a role as Strategic Head of Estates as he was not a qualified engineer.[12]The Claimant was signed-off sick as unfit for work, under a ‘FIT note’, from 19 April to 17 May 2023. In the meantime, Mr Robert (Robbie) Ayers (Deputy Director of Estates) was appointed as ‘investigating officer’ for the Claimant’s grievance of 12 April 2023 (‘Grievance 1’). Robbie Ayers wrote to the Claimant on 19 April 2023 suggesting that he meet with the Claimant on 26 April 2023 (Mr Ayers was not aware that the Claimant was on sick leave at the time). He emailed the Claimant again on 5 May 2023 asking the Claimant to contact him when he returned to work so that they could set up a meeting to discuss the grievance.[13]On the Claimant’s return to work, Robbie Ayers met with the Claimant informally. Mr Ayers also met with Simon Hughes, who disagreed with the Claimant’s account of what had happened between them prior to the Claimant’s lodging of his grievance. Both the Claimant and Simon Hughes indicated that they were amenable to mediation at this stage. A mediation session, chaired by Robbie Ayers, was scheduled to take place on 2 June 2023.[14]On 31 May 2023 the Claimant sent an e-mail to Robbie Ayers stating: ‘this is to confirm cancellation of the mediation meeting in light of additional extremely distressing information which I have received from multiple sources regarding the conduct of the concerned individual. The allegations are so serious that a mediation meeting will not be appropriate under these circumstances. Please can I ask for an independent more formal process to be followed in this case to include thorough investigation by means of interviews of all witnesses as appropriate …’.[15]Around 17 April 2023 when the Claimant was on sick leave, Simon Hughes had sent an email to Sarath Rajan, a member of staff who was line-managed by the Claimant, stating ‘If you let me know in future, I am your line manager so from a reporting perspective I need to know if you are in or not, thanks and hope you feel better soon’ (Bundle p 195). Sarath Rajan made a complaint against Simon Hughes and the Claimant was interviewed as a witness in respect of that complaint. The Claimant said that he had heard that Simon Hughes had been asking other team members to write a derogatory statement against him and Sarath Rajan to build a case so that both would be dismissed.[16]Grievance 1 was then paused to allow for this further more serious allegation (Grievance 2) to be investigated. However the Claimant did not appear to have been told at that time, either in clear terms or at all, that Grievance 1 was being paused to allow for the investigation of Grievance 2. Therefore the Claimant was not able to make any complaint at the time about the pausing of Grievance 1.[17]In the Claimant’s payslip for May 2023, a deduction was made with regard to his on-call payment during the time that he had been on sick leave. The Claimant made a complaint about this and he was paid his on-call payment for May, in full, in his June 2023 salary and this was reflected in his June 2023 payslip.[18]On 23 April 2023, Simon Hughes prepared a business case proposing changes to the Estates Department (Bundle, pp 237-255). The proposal was in draft form and was intended to streamline and improve the operation of the Estates Department in light of the issues that the department faced with recruitment and retention of staff. It suggested the downgrading of two roles: Head of Governance and Governance and Compliance Lead. The head of Governance role did not exist at that time and was likely a mistake on Simon Hughes’ part. The Governance and Compliance Lead role was undertaken by Tracey Burgess whose race is not identified as a ‘BAME’ (Black and Minority Ethnic) and she does not identify as being of Indian heritage.[19]On 18 May 2023 at an electrical safety group meeting, Simon Hughes said that an agency was being brought in to look at staff qualifications across the whole Estates Department. This was because risks had been identified that potentially impacted upon the department’s ability to deliver its outcomes.[20]On 2 June 2023 the Claimant and Michael Meredith had a ‘MS Teams’ call. The Claimant made his own transcript of this call (bundle, pp 214 - 215).[21]On 6 June 2023, the proposed organisational restructure of staff roles in the Estates Department Team (as described at para 18) was accidentally shared by Simon Hughes’ secretary, who pinned it on a notice board in a communal area (bundle, p 229). In the event, Simon Hughes’ proposed restructure of the Estates Department was never implemented and no employees in the department had their roles down-graded.[22]On 6 June 2023, Tracey Burgess e-mailed a calendar invite to a number of staff in the Estates Department about a meeting proposed for 8 June 2023 to consult on the proposed restructuring of the Estates Department Team. In a screenshot of this calendar invite provided by the Claimant contained in the bundle, the Claimant’s name appears to be missing. There were a number of other member of staff besides the Claimant who were not included in that invite. In the event, the meeting was cancelled.[23]On 14 June 2023, the Claimant applied for another job in the Mid Yorkshire Hospitals NHS Trust.[24]On 19 June 2023, the Claimant was informed that Shahid Sardar (Associate Director in the Estates Department) would be appointed as investigating officer for Grievance 2. On 29 June 2023 the Claimant was invited to a grievance meeting by Mr Sardar. There were various meetings between the two regarding Grievance 2 during the course of July 2023.[25]On 1 August 2023, the Claimant tendered his resignation stating the following reasons (Bundle, p 351): ‘You should know that I am resigning in response to a repudiatory breach of contract by my employer and I therefore consider myself constructively dismissed. You rejected my grievance dated 12 April 2023 including further formal grievance dated 21 May 2023 which both sets out the basis on which I believe you have seriously breached my contract … As you have not upheld my grievance, and not kept me informed about its progress and outcome including any reasonable potential delays and relevant timescales, I now consider that my position at the Princess Alexandra Hospital NHS Trust is untenable and my working conditions intolerable, leaving me no option but to resign in response to your breach … As I have previously indicated to you that I continue to work under protest until my grievance was resolved, I do not in any way believe I have affirmed or waived your breach.’[26]The Claimant then went on sick leave for the duration of his three month notice period. On 1 September 2023, Shahid Sardar informed the Claimant that the complaints raised in Grievance 2 had not been upheld. The Claimant immediately lodged an appeal against that finding.[27]On 25 October 2023, Robbie Ayers invited the Claimant to a meeting regarding the resumption of the investigation of Grievance 1. Robbie Ayers having recommenced this investigation on 29 August 2023. A grievance meeting was set for 31 October 2023 (the final day of the Claimant’s employment with the Respondent). In the event, that meeting was stood-down by Mr Ayers, the Claimant not having responded to the invitation to attend. On 12 December 2023, Mr Ayers informed the Claimant in writing that Grievance 1 was not upheld.[28]The Claimant’s employment with the Respondent ended on 31 October 2023. He started his new employment with Mid Yorkshire NHS Foundation Trust in Wakefield on 1 November 2023. The Claimant’s job role with the Respondent still exists in the form that it did when the Claimant was still employed there. It has been undertaken temporarily by a number of employees and was filled on a permanent basis in December 2024. The Law to be applied Constructive unfair dismissal[29]Section 95(1)(c) and section 136(1)(c) of the Employment Rights Act 1996 provide that there is a dismissal where the employee terminates the contract with or without notice in circumstances such that he or she is entitled to terminate it without notice by reason of the employer’s conduct. This form of dismissal is commonly referred to as constructive dismissal. In order to claim constructive dismissal, an employee must establish that there was a fundamental breach of contract on the part of the employer, that the employer’s breach caused the employee to resign, and the employee did not delay too long before resigning, thus affirming the contract and losing the right to claim constructive dismissal.[30]The classic statement on the law in relation to this form of dismissal is expounded in the judgment of Lord Denning in Western Excavating (ECC) Limited v Sharp [1978] ICR 221 where it was stated: ‘If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed’.[31]For a constructive dismissal claim to succeed, the employee must establish a causal link between the employer’s wrongful action and the employee’s resignation (Bunning v GT Bunting and Sons Ltd [2005] EWCA Civ. 104).[32]To claim constructive dismissal, an employee must establish that:(i) The breach was a repudiatory one, entitled the employee to resign; and(ii) The employee resigned because of that breach of contract.[33]The burden of proof rests on the employee to establish each of the above. If they fail at any stage, they will not establish a constructive dismissal and will be held to have resigned. Harassment related to race[34]The Equality Act 2010, insofar as material, provides: (1) A person (A) harasses another (B) if – (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) The conduct has the purpose or effect of – (i) Violating B’s dignity, or (ii) Creating an intimidating, hostile, degrading, humiliating or offensive environment for B ... (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account – (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect. (5) The relevant protected characteristics are – … race …[35]The test for whether conduct achieved the requisite degree of seriousness to amount to harassment was considered (in the context of the formulation of s 3A Race Relations Act 1976) by the EAT in Richmond Pharmacology v Dhaliwal [2009] IRLR 336 per Underhill P. at [22]’: ‘We accept that not every racially slanted adverse comment or conduct may constitute the violation of a person’s dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers, and Tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct on other grounds covered by cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase.’[36]Elias LJ in Land Registry v Grant [2011] ICR 1390 at [47] held that sufficient seriousness should be accorded to the terms ‘violation of dignity’ and ‘intimidating, hostile, degrading, humiliating or offensive environment’.[37]The EAT in Betsi Cadwaladr University Health Board v Hughes [2014] UKEAT/0179/13/JOJ at [12], referring to Elias LJ’s observations in Grant, stated: ‘We wholeheartedly agree. The word “violating” is a strong word. Offending against dignity, hurting it, is insufficient. “Violating” may be a word the strength of which is sometimes overlooked. The same might be said of the words “intimidating” etc. All look for effects which are serious and marked, and not those which are, though real, truly of lesser consequence.’[38]In relation to the burden of proof relevant to claims under the EqA, section 136 provides that: ‘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.’[39]In Mrs A Field v Steve Pye & Co (KL) Limited and others [2022] EAT 68, HHJ James Tayler gave the following guidance relating to the burden of proof in case alleging breaches of the EqA (at paras [36] – [38]): …The revised Barton guidance. As this is the first time that the Barton guidance has been considered by this court, it may be helpful for us to set it out again in the form in which we approve it ... We repeat the warning that the guidance is only that and is not a substitute for the statutory language. Annex(1) Pursuant to section 63A of the 1975 Act, it is for the claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the employer has committed an act of discrimination against the claimant which is unlawful by virtue of Part 2, or which, by virtue of section 41 or section 42 of the 1975 Act, is to be treated as having been committed against the claimant. These are referred to below as “such facts”.(2) If the claimant does not prove such facts he or she will fail.(3) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that “he or she would not have fitted in”.(4) In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal.(5) It is important to note the word “could” in section 63A(2). At this stage the tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them.(6) In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts(7) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 74(2)(b) of the 1975 Act from an evasive or equivocal reply to a questionnaire or any other questions that fall within section 74(2) of the 1975 Act.(8) Likewise, the tribunal must decide whether any provision of any relevant code of practice is relevant and, if so, take it into account in determining such facts pursuant to section 56A(10) of the 1975 Act. This means that inferences may also be drawn from any failure to comply with any relevant code of practice.(9) Where the claimant has proved facts from which conclusions could be drawn that the employer has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the employer.(10) It is then for the employer to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act … In some cases there may be no evidence to suggest the possibility of discrimination, in which case the burden of proof may have nothing to add. However, if there is evidence that discrimination may have occurred it cannot be ignored.’
Conclusions
[40]The evidence and submissions at the final hearing and the oral judgment delivered on 14 February 2025 were confined to this list of issues as enumerated by EJ Park at the preliminary hearing on 14 January 2025, so this judgment cross-refers each allegation to that list of issues for the ease of reference of the parties. Constructive Unfair Dismissal[41]When considering this claim, we first have to decide whether the Claimant was dismissed. We have considered whether the Respondent did the following things as alleged by the Claimant (the ‘Associate Director’ referred to in the list of issues below is Simon Hughes):41.1 Between August and December 2022 pressure the Claimant to be on-call and fail to respond to requests for additional support (issue2.1.1.1 ). We acknowledge that the situation was difficult for the Claimant between August and December 2022 due to the problems caused by the under-staffing of the Estates Department. We accept that the Claimant raised issues about the situation including asking for an update in December 2022 (see Bundle, p 165) and that it had clearly taken a very long time for the Respondent to authorise new members of staff to be placed on the ‘on-call’ rota. However, the Claimant was responsible for drafting the rota and that he was paid for being on call. The Respondent replied to the Claimant’s request of December 2022, stating that a further person had been considered for the rota and had been rejected. While this was not the response the Claimant would have preferred, it is not, in our view, evidence that the Claimant was placed under pressure by the Respondent to be on- call or that the Respondent failed to respond to his requests for additional support.41.2 In February 2023 the Associate Director removed the Claimant’s recruitment responsibilities and used non-standard processes for recruitment instead (issue2.1.1.2 ). While Simon Hughes carried on with the recruitment drive in the Claimant’s absence when he was on annual leave in India this did not represent a removal of the Claimant’s recruitment responsibilities. It is common ground between the parties that the Estates Department was chronically understaffed which was impacting on its service delivery. Therefore we consider that recruitment needed to be ongoing and it is understandable that it was not halted just because the Claimant was on annual leave. The ‘non standard’ processes referred to by the Claimant, namely the use of agency workers, was acknowledged by the Respondent not to be best practice. However it is not an uncommon practice and it has to be viewed in the context of the staffing situation in the Estates Department which was desperate at this time. No evidence was presented to the tribunal by the Claimant to indicate that either that Simon Hughes removed his recruitment responsibilities or that the ongoing use of agency staff usurped the Claimant’s recruitment role.41.3 On 12 April 2023 the Associate Director sent the Claimant an email to say that he would be working on a lower banding without any prior discussion and invited the Claimant to a meeting to discuss this, in effect demoting the Claimant (issue2.1.1.3 ). The email from Simon Hughes (see para 10, above) did not, either expressly or implicitly, indicate that the Claimant would be working at a lower banding. It merely summarised a conversation in which another job was discussed. In any event, there was a clear procedure for the re-banding of jobs under the NHS ‘Agenda for Change’. Following this procedure was the only way, under the Respondent’s policies, that a re-banding of a job could occur. This procedure required that a number of things happen prior to a rebanding, such as a consultation process. It was a lengthy process and a re-banding could not take place on the whim of a line manager. As a senior manager within his department, the Claimant would have been aware of these policies. In any event, the Claimant accepted, when cross-examined, that he remained as a Band 8C until his employment terminated.41.4 Failed to deal with the grievance raised on 12 April 2023 (Grievance 1) in a timely manner in accordance with the Respondent’s procedures (issue2.1.1.4 ). We consider that it took the Respondent a long time to process Grievance 1 and that this was not in accordance with the Respondent’s policies and specified timescales for investigating employee grievances. The Respondent’s communication with the Claimant about the ‘pausing’ of Grievance 1 was also poor at the time that it was paused, albeit that the Respondent later provided an explanation to the Claimant as to why it had paused Grievance 1. In our view, while it would have been preferable for the Respondent to have continued to investigate Grievance 1 either in parallel with, or as an addition to, Grievance 2 (which was about a more serious matter), we do not consider that it was unreasonable on the Respondent’s part to pause Grievance 1 when the Claimant filed his second grievance.41.5 On 17 April 2023 removed the Claimant’s line management responsibilities (issue2.1.1.5 ). In respect of this allegation, the Claimant relied on the email from Simon Hughes to Sarath Rajan (Bundle, p 195, see para 15 above). In our view, this was not a reasonable or proper conclusion for the Claimant to have drawn from the contents of Simon Hughes’ email. The email merely reminded Sarath Rajan that, in the absence of the Claimant (who was his Line Manager), he needed to let Simon Hughes know when he was not at work. While the wording is unfortunate not as clear as it could have been, it cannot be read as indicate that Simon Hughes was removing the Claimant’s line management responsibilities. In any event, any change in job roles and re-mapping of responsibilities could only occur in accordance with the policies and procedures set out in the NHS national ‘Agenda for Change’ document. The Claimant, as a senior manager with line management responsibilities himself, would have been aware and familiar with this process.41.6 Ostracise the Claimant by his team members and the executive team once his line management responsibilities had been removed (issue2.1.1.6 ). We have found that the Claimant’s line management responsibilities were not removed (see para 39.5 above). The only evidence that the Claimant relied upon to suggest that he was ostracised by his team members and the executive team was the apparent exclusion of his name from a calendar invite sent by Tracey Burgess on 6 June 2023 about a meeting proposed for 8 June 2023 to discuss the proposed restructuring of the Estates Department. The only evidence presented to the tribunal about this was a screenshot of the e-mail ‘meeting invite’ (bundle, pp 219 – 220). There were other members of staff within the department whose names were also missed off that meeting invite. Therefore, the omission of the Claimant’s name and the names of other members of staff was more likely than not to have been down to an unfortunate error rather than any attempt to ostracise the Claimant. While this omission may have given the Claimant reason to feel aggrieved, as a senior manager it would have been reasonable to have expected him to raise this as an issue at the time, either with Tracey Burgess or someone higher in the management chain. However, he did not do so. In any event, the meeting in question was cancelled and the proposed restructure of the department that was to be discussed at the meeting did not actually happen.41.7 In May 2023 removed the Claimant’s on-call payments (issue2.1.1.7 ). From the documentary evidence, namely the Claimant’s June payslip and the evidence of Michael Meredith, which was not challenged by the Claimant, it is clear that the non-payment of his on-call payment, reflected in his May 2023 salary when he was on sick leave, was an error. Following the Claimant’s complaint about this, the Respondent paid that payment in the Claimant’s salary for June 2023 as is reflected in his June 2023 payslip.41.8 The Associate Director sought adverse statements from other members of staff about the Claimant, in around June 2023 (issue2.1.1.8 ). While Simon Hughes no longer works for the Respondent and has not been a witness at the tribunal, Shahid Sardar made notes of his meeting with Simon Hughes when investigating the Claimant’s ‘Grievance 2’ (bundle, pp 288 -291). The notes state that Simon Hughes had denied that he had asked employees to write derogatory statements about the Claimant, explaining that the context was that two junior employees (who are named in the notes) had raised concerns, primarily about Sarath Rajan, but had also mentioned the Claimant. Shahid Sardar notes that Simon Hughes informed him that he had told the employees that if they wished for him to take matters any further, they would need to write to him. We prefer this account because it is contemporaneous and there is no reason why Shahid Sardar would have misrepresented the contents of the meeting. It is not uncommon for a manager to request that any concerns or complaints raised by employees verbally are put into writing should they wish to raise a formal grievance. We also heard no evidence from the Claimant in support of this assertion and we accept the account of Shahid Sardar.41.9 Did that breach the implied term of trust and confidence (issues 2.1.2 – 2.2.2.1)? Given our findings above (issues 2.1.1.1 – 2.1.1.8), we do not find that the Respondent behaved in such a way as was calculated or likely to seriously breach the implied term of trust and confidence between the Claimant and the Respondent. While we have noted that ‘Grievance 1’ was not dealt with in accordance with the timescales envisaged in the Respondent’s grievance policy, we consider that any delays that happened were explained by other factors, most particularly the decision to pause Grievance 1 when Grievance 2 was filed by the Claimant. While this was regrettable it was not an action calculated or likely to seriously damage the trust and confidence between the Claimant and the Respondent. The Claimant has failed to establish that there was any repudiatory breach of his contract on the part of the Respondent that would have entitled him to terminate his contract with the Respondent with or without notice. It follows that the Claimant was not dismissed. Given that the Claimant has failed to establish that he was dismissed, it is therefore not necessary to consider the further questions related to the fairness of any dismissal (issues 2.1.2.2; 2.1.3; 2.1.4; 2.2; 2.3, 2.4 and 2.5) and remedy (issues 3.1 – 3.8). Breach of contract/ redundancy pay[42]The Respondent conceded that, if the tribunal finds that the Claimant has successfully made out a claim for constructive dismissal, then the Claimant’s claim for breach of contract would also succeed, provided that the Claimant could establish that he was entitled to a redundancy payment under the terms of his contract (the claimant’s claim was for a contractual payment rather than a statutory redundancy payment), that his job role was redundant, and that he had not received a redundancy payment to which he was entitled under his contract.[43]Given that the Claimant failed to establish that he was dismissed by the Respondent (para 39.9 above), the Claimant’s claim for breach of contract also fails. While it makes no difference to our finding on this issue, we also found as a matter of fact that the Claimant’s job remained and was advertised by the Estates Department after he had resigned. The Claimant’s role still exists in the form that it did when he was employed by the Respondent. It has been undertaken temporarily by a number of employees and was filled on a permanent basis in December 2024. We also made a finding of fact that any proposed restructure of the Estates Department did not go ahead. Harassment related to Race Time Limits (EqA, section 123)[44]The claim form was presented 30 January 2024, after an ACAS early conciliation period between 1 and 3 August 2023. Therefore for the purposes of s 123 of the Equality Act 2010, any complaint about something that happened before 29 July 2024 may not have been brought within time. On the Claimant’s own case, the final alleged act of harassment related to race occurred in June 2024 (issue 5.1.6, list of issues – namely, Simon Hughes seeking adverse statements from other staff about the claimant in or around June 2023). Therefore, on the face of it, all of the Claimant’s allegations of harassment related to race are prima facie out of time. On the Claimant’s case, the only option open to him to potentially extend the time limits under the EqA is to successfully argue that it is just and equitable to extend time under EqA, s 123(1)(b).[45]All of the Claimant’s allegations of harassment related to race were made by way of amendments to his original claim at preliminary hearings before EJ Park in June 2024 and January 2025. On his ET1 claim form, the Claimant had not indicated in the requisite section that his claim was about race. When crossexamined, the Claimant said that he had forgotten to do so. Even if the tribunal were to accept this explanation, which it does not, the Claimant has failed to explain why he delayed raising these allegations for a further six and, in the case of the final two allegations, 12 months, after he had lodged his claim form. Given that the Claimant says that he had ‘forgotten’ to tick the box related to ‘race’ on his claim form, it follows that he had been aware that he could bring such claims in order to have forgotten to tick the requisite box when he submitted his claim form. He has given no explanation as to why he failed to raise these claims at an earlier stage after the submission of his claim given that he was aware of them. Therefore, in all the circumstances, the tribunal does not consider that it is just and equitable to extend time. Therefore the Claimant’s claims of harassment related to race (as set out in of the list of issues, para 5) were brought too late and are out of time.[46]If we are wrong in our conclusions about the EqA time limits, we have gone on to consider the evidence in relation to these claims below.[47]We have considered whether the Respondent did the following things as alleged in the list of issues (all references to the Associate Director in the list of issues below refer to Simon Hughes):47.1 In February 2023 the Associate Director removed the Claimant’s recruitment responsibilities and used non-standard processes for recruitment instead? (issue5.1.1 ). We find for the reasons stated at para 43.2 above (issue 2.1.1.2) that the Claimant’s recruitment responsibilities were not removed.47.2 On 12 April 2023 the Associate Director sent the Claimant [an email] to say he would be working on a lower banding without any prior discussion and invited the Claimant to a meeting to discuss this, in effect demoting the Claimant? (issue5.1.2 ) We find for the reasons stated at para 43.3 above (issue 2.1.1.3) that the email from Simon Hughes cannot be read as either expressly stating or implying that the Claimant would be working at a lower banding.47.3 On 17 April 2023 remove the Claimant’s line management responsibilities? (issue5.1.3 ). We find for the reasons stated at para 43.5 above (issue 2.1.1.5) that the Claimant’s line management responsibilities were not removed.47.4 On 18 May 2023 during an electrical safety group meeting did the Associate Director call into question the qualifications of the Claimant and one other member of the Estate’s team who was also of Indian heritage? (issue5.1.4 ). The Claimant did not refer to this allegation in his witness statement or in his resignation letter (see para 25 above). He did not mention it to Shahid Sardar during the ‘Grievance 2’ process. We therefore have heard no evidence to suggest that the Claimant’s qualifications were called into question at this meeting. We have found (para 19 above) on the evidence before us, that Simon Hughes had explained that an agency was being brought in to look at staff qualifications across the whole Estates Department. This was because risks had been identified that potentially impacted upon the department’s ability to deliver its outcomes. The Respondent was obliged to take steps to deal with those risks in the circumstances and we find that there was good reason to look at the qualifications of staff across the department and that no members of staff were singled out for scrutiny.47.5 On 2 June 2023 the Claimant was intimidated by the Senior Director to cooperate and continue working under the circumstances over a Teams call? The Claimant expressed his dismay in an email and shared the conversation transcript directly with the Director (issue 5/1/5). While we have only seen the Claimant’s own notes of the call, Michael Meredith (Senior Director) indicated in his evidence that he broadly agreed with them. We therefore accept that the Claimant’s notes provide a broadly accurate recollection of what occurred during the call. We find that there is nothing contained in the Claimant’s notes of this meeting (bundle p 214 – 215) to indicate that Michael Meredith was intimidating towards him in any way. The notes indicate that the parties were on an equal footing throughout and that Micheal Meredith was seeking only to find a resolution to a situation where two of the senior members of staff in his department, the Claimant and Simon Hughes, were in conflict. The Claimant had accepted that he previously had a good relationship with Michael Meredith and we find that there was absolutely no reason for him to have been dismayed by the course of that call and there is no evidence that Michael Meredith had conducted himself in any way that could be described as ‘intimidating’. When crossexamined about whether there was anything related to racial harassment contained within his own transcript of that meeting, the Claimant said ‘no’. The Claimant did not cross-examine Michael Meredith about either the contents of, or his manner during, the MS Teams call and it follows that there was no evidence before the tribunal to suggest that Michael Meredith had either been intimidating towards, or had racially harassed (as is conceded by the Claimant in cross-examination), the Claimant during the course of that call.47.6 On 6 June 2023 display publicly a new organisation structure showing that two employees of Indian heritage had their roles downgraded? (issue 5.1.6) We have found that the draft organisational structure suggested the downgrading of two roles: Head of Governance and Governance and Compliance Lead. The head of Governance role did not exist at that time and that this was likely a mistake on Simon Hughes’ part. The Compliance Lead role was undertaken by Tracey Burgess who does not identify or is not identified as either BAME or of Indian heritage. The sharing of the proposed new organisational structure was accidental on the part of Simon Hughes’ secretary. In any event, no restructure of the Estates Department was ever implemented and no employees within that department had their roles down-graded.47.7 Share a consultation document publicly in which all employees whose roles were downgraded were of BAME background, including the Claimant? (issue 5.1.7). As noted in our finding at para 48.6 (issue 5.1.6), the document was shared in error by Simon Hughes’ secretary. No employees, including any who identified as of a BAME background or of Indian Heritage, had their roles downgraded. The Claimant’s role was never downgraded.47.8 (The Associate Director sought adverse statements from other staff about the Claimant, in around June 2023? (issue 5.1.8). For the reasons noted at para 42.8 above (issue 2.1.1.8) we find that this did not occur.[48]We therefore find that the Respondent did not engage in any unwanted conduct as the Claimant alleges in para 48 above (list of issues at 5.1.1 – 5.1.8) or at all. The Claimant has failed to establish any facts from which it could be decided, in the absence of any other explanation, that the Respondent contravened the provisions of the EqA. In other words, there is no evidence to suggest the possibility of harassment related to race on the part of the Respondent and the Tribunal has not found any primary facts from which inferences of a violation of the provisions of the EqA could properly be drawn. In the circumstances, as the claims have failed, the issue of remedy (list of issues, 6.1 – 6.12), therefore, does not fall to be considered .