Miss N Adande v London Borough of Havering and Others: 3200264/2023

EMPLOYMENT TRIBUNALS

Case No 3200264/2023

Between

Miss N AdandeClaimant

(1) London Borough of Havering (2) Tendai Dooley (3) Tara GeereRespondent

Before

Employment Judge S Shore

Members

Ms G Forrest

Mr T Brown

In person for claimant

Mr T Lester (instructed by Counsel) for respondent

Date 20 February 2026

JUDGMENT

The unanimous judgment of the Employment Tribunal is that: - The claimant’s complaints are determined as follows:

[1]Direct race discrimination about the following:1.1 The claim that on 26 July 2022, the claimant’s line manager, Kemi Akosile notified the second respondent about her travel and hotel expenses, and the second respondent put the claimant unnecessarily put the claimant through a stressful process fails. The claim was presented out of time, and the Tribunal does not consider that the claim was part of conduct extending over a period or that it was just and equitable to extend time.

1.2 The claim that on 13 January 2020, the claimant was not appointed to the role of Pathway Coordinator, but a White colleague named Sheralyn Hedges was appointed fails. The claim was presented out of time, and the Tribunal does not consider that the claim was part of conduct extending over a period or that it was just and equitable to extend time.

1.3 The claim that on 16 February 2022, Sean Kelly, a White member of staff, was provided with interview questions and answers for a Pathway Co-Ordinator role, but the claimant was not provided with the questions and answers when she applied of a role in 2020, fails on its merits. The claim was presented out of time, and the Tribunal does not consider that the claim was part of conduct extending over a period or that it was just and equitable to extend time.

1.4 The claim that in around January 2022, the third respondent told the claimant and her team that there was a Pathway Co-ordinator position coming up and that they did not need to apply because they would all become Pathway Co-Ordinators automatically, fails.

1.5 The claim that on 03 October 2022, Kate Dempsey informed the claimant that the second respondent had asked her to update the claimant that the first respondent could not fund her request to study an Open University social work masters’ course fails on its merits. The claim was presented out of time against the second and third respondents and the Tribunal does not consider that the claim was part of conduct extending over a period or that it was just and equitable to extend time.

[2]Harassment related to race about the following: 2.1 The claim that on 03 October 2022, Kate Dempsey informed the claimant that the second respondent had asked her to update the claimant that the first respondent could not fund her request to study an Open University social work masters’ course fails on its merits. The claim was presented out of time against the second and third respondents and the Tribunal does not consider that the claim was part of conduct extending over a period or that it was just and equitable to extend time.

[3]Victimisation about the following:3.1 The protected act relied upon by the claimant is the claimant’s grievance dated 19 October 2022, which the Tribunal finds to be a protected act.

3.2 The claims of detriment relied on by the claimant are determined as follows:3.2.1 The claim that on 22 November 2022, Tara Geere was advised that the claimant could not work in the Cocoon full time. The third respondent did not support the claimant and was questioning of her fails.

3.2.2 The claim that the respondents failed to provide minutes of meetings on 03 November 2022 and 11 January 2023 fails.

3.2.3 The claim that the respondents failed to provide a grievance outcome to the claimant fails.

[4]Disability 4.1 The claimant’s disability (which she relies upon) at the time she presented her claim was depression and insomnia. The Tribunal finds that at the time with which these claims are concerned, the claimant did not show on the balance of probabilities that she was a disabled person as defined by section 6 of the Equality Act 2010. Therefore, all her disability discrimination claims fail.

[5]Protected disclosures (Whistleblowing)5.1 Our determination on the qualifying disclosures relied upon by the claimant are as follows:5.1.1 On 04 February 2022 the claimant had complained by email that as a result of working at The Cocoon she was suffering from health issues. The Tribunal finds that that was not a protected disclosure.

5.1.2 On 24 February 2022 by email the claimant complained about the first respondent not following fair recruitment procedures in respect of Sean Kelly. The Tribunal finds that that was not a protected disclosure.

5.1.3 On 08 April 2022 the claimant also complained to the first respondent’s Occupational Health consultant that as a result of working at The Cocoon she was suffering from health issues. The Tribunal finds that that was not a protected disclosure.

5.1.4 In her grievance dated 19 October 2022 the claimant complained about the working conditions and health and safety within The Cocoon. The Tribunal finds the grievance was a protected disclosure.

5.1.5 The assertion by the claimant concerning her discussion with the third respondent on 17 October 2022 was not a protected disclosure. The assertion that the claimant sent an email summarising the conversation on 19 October 2022 is a duplicate of the previous paragraph. The claimant’s email of 19 October 2022 was her grievance. The error was caused by the claimant initially stating that her grievance was made on 16 October 2022. The claimant’s assertion that she also repeated her concerns during a meeting with the third respondent and the HR manager, Lynette Hart on 03 November 2022 was not a protected disclosure.

5.2 As the Tribunal has found that the claimant made one protected disclosure on 19 October 2022, any detriments that preceded this date cannot be considered and fail.

5.3 Our findings on the detriments alleged (paragraphs 4.1.2 to 4.1.3 inclusive) are:5.3.1 The allegation that the respondents failed to manage to claimant’s grievance fairly because she made a protected disclosure fails.

5.3.2 The allegation that the second respondent required the claimant to work at The Cocoon on 22 November 2022 because she made a protected disclosure fails.

5.3.3 The allegation that on 22 November 2022, the third respondent told the claimant that she was hysterical; questioned why she was traumatised; and stated that she could not understand why the claimant could not work at The Cocoon because she made a protected disclosure fails.

[6]The Tribunal had listed a remedy hearing for 18 September 2024, which was postponed because this Judgment and Reasons had not been promulgated. All the claimant’s claims have been dismissed, so there will be no remedy hearing.

REASONS

[1]These Reasons are written after the parties had made closing submissions at the final hearing, by which time we had seen all the parties’ documents, the Tribunal’s digital file and the Tribunal’s paper file. On the first day of the hearing, we had no access to the Tribunal’s paper file, so were unsighted on some matters until the second day when we attended the East London Hearing Centre in person. This history is, therefore, what the Tribunal knew by the end of the hearing. We would comment that the way that this hearing was prepared by both parties leaves much to be desired and neither party can be said to have complied with the provisions or the spirit of the overriding objective.

[2]The claimant has been employed by the first respondent, a local authority, as a Young Person Advisor, since 14 August 2018. The claimant’s employment was continuing at the date of this hearing. ACAS Early Conciliation started against the first respondent on 02 December 2022 and ended on 10 January 2023. The claimant self-identifies as a Black woman of Nigerian nationality.

[3]The claimant’s claims that we heard are set out in the Judgment above. All claims were denied by all respondents.

[4]ACAS Early Conciliation started and ended against the second respondent, Tendai Dooley, the Head of Service, Children and Young People’s Service (“CYPS”) for the first respondent, on 06 February 2023. Ms Dooley self-identifies as a Black African woman.

[5]ACAS Early Conciliation started and ended against the third respondent, Tara Geere, the Assistant Director, CYPS for the first respondent, on 06 February 2023.

[6]The Claim Form (ET1) [8-19] and a separate document titled “ET1 FORM SECTIN 8.2” (sic) [20-34] in respect of all three respondents was presented on 08 February 2023. Ms Geere self-identifies as a White British woman.

[7]The Tribunal sent the claimant an Acknowledgement of Claim on 10 February 2023 and sent the parties a Notice of Claim on the same date that required the respondents to file a response by 10 March 2023. The Tribunal also sent the parties a Notice of Preliminary Hearing dated 3 March 2023 that set up a preliminary hearing by video on 24 July 2023. The claimant had requested that hearings be held in person in paragraph 2.1 of her Claim Form.

[8]The respondents filed a Response Form (ET3) [35-41] and Grounds of Resistance [42-54] on 10 March 2023. The response was acknowledged on 25 March 2023.

[9]The Tribunal sent the parties a letter dated 11 April 2023 with case management orders from Employment Judge Gordon Walker that converted the preliminary hearing on 24 July 2023 to an in person hearing and required:9.1 The claimant to produce a witness statement by 9 May 2023 that described the effect that her disabilities had on her ability to carry out normal day to day activities (usually called an ‘impact statement’); and

9.2 The claimant to produce any medical evidence she had that she wished to rely on to prove she was a disabled person by 9 May 2023.

[10]On 24 July 2023 a preliminary took place at the East London Hearing Centre before Employment Judge Beyzade, who produced a detailed case management order on 3 August 2023 that was sent to the parties on 8 August 2023 [55-77]. It included the List of Issues that is reproduced below. The parties were instructed that if they thought anything in the Case Summary (which included the List of Issues) was wrong, they had to notify the Tribunal and the other side by 25 August 2023 [58]. Neither side made any representations within the prescribed time limit. We have proceeded with this hearing based on the List of Issues produced by EJ Beyzade.

[11]The first respondent accepted vicarious liability for the alleged acts and omissions of the second and third respondents and would pay any award made against them. The claimant was therefore required to advise the Tribunal and the parties by 31 August 2023 if she wished to continue her complaints against the second and third respondents and, if she did, what specific complaints she was making against each of them.

[12]The case management order records a discussion with the claimant about her potentially applying to amend her claim to include a claim for pregnancy related discrimination [57]. She was given advice about the process and directed to the Presidential Guidance.

[13]The case management order also records a discussion about one of the whistleblowing detriments that the claimant had made relating to an OH report dated December 2022. She was advised that this would require an application to amend by the claimant. The claimant was specifically told that if she did not apply to amend, the final hearing would not deal with this claim or the pregnancy claim.

[14]EJ Beyzade listed the final hearing to be in person and made case management orders that included:14.1 Listing this final hearing for five days:

14.2 Setting a timetable for the final hearing that limited the claimant’s witness statement to 40 pages and the respondents’ witness statements to 20 pages for Kemi Akosile, Tendai Dooley and Tara Geere and 10 pages for a member of the first respondent’s HR team.

14.3 The claimant gave further information about her claims at the preliminary hearing, which were recorded by EJ Beyzade. The claimant was ordered to advise the Tribunal and respondents if any of that further information as recorded in EJ Beyzade’s order was wrong or incomplete by 10 August 2023. She did not seek to amend her further information.

14.4 The respondents being given leave to file an amended response by 21 August 2023. No amended response was filed.

14.5 The claimant providing a Schedule of Loss by 21 August 2023.

14.6 The respondents confirming by 25 August 2023 whether they accepted that the claimant was a disabled person.

14.7 The parties to confirm interest in Judicial Mediation by 25 August 2023.

14.8 The parties to exchange lists of documents by 23 October 2023.

14.9 The parties to request copies of any documents held by another party by 30 October 2023, with copies provided by 6 November 2023.

14.10 The parties to agree a final bundle by 20 November 2023.

14.11 The first respondent to produce a paginated bundle and supply a copy to the other parties by 4 December 2023.

14.12 Witness statements to be exchanged by 15 January 2024.

14.13 The parties to confirm readiness for the final hearing by 15 February 2024.

14.14 The first respondent to produce and try to agree a neutral chronology, a cast list, and a list of key documents by 8 March 2024.

[15]Up to the date of the preliminary hearing on 24 July 2023, it appears from the Tribunal’s digital file that the respondents were represented by the first respondent’s in-house legal department. After the preliminary hearing, it appears from the Tribunal’s digital file that the first respondent outsourced its representation to OneSource Legal Services.

[16]On 17 August 2023, the claimant emailed the Tribunal and copied the respondent’s new representatives with a request to extend time to provide a Schedule of Loss, confirm whether she was pursuing the second and third respondents, and whether she was interested in Judicial Mediation until 20 September 2023. Her reason for the application was illness and an impending surgical procedure.

[17]The claimant sent the Tribunal and the respondent her Schedule of Loss on 21 August 2023. The claimant declined the opportunity of Judicial Medication on 25 August 2023. On 31 August 2023, the claimant wrote to the Tribunal, copying in the respondents’ representative to confirm that she wished to pursue the second respondent, Tendai Dooley personally for:17.1 “Direct race discrimination”;

17.2 “Harassment related to race”;

17.3 “Victimisation”: and

17.4 “Disability discrimination”.

[18]The claimant also confirmed that she wished to pursue the third respondent, Tara Geere personally for:18.1 “Disability discrimination”;

18.2 “PCP reasonable adjustment”;

18.3 “Discrimination arising from disability”; and

18.4 “Harassment related to disability”.

[19]The claimant added that “Respondents 2 and 3 are personally held accountable for victimisation and harassment related to race and disability”.

[20]The claimant’s application for extension of time was granted by Employment Judge Russell on 4 September 2023, by which time the claimant had complied with all the orders that were the subject of her application.

[21]The claimant sent two emails to the Tribunal on 18 October 2023. The first reserved her right to bring a negligence action for personal injury in a civil court. The second indicated that the claimant had started early conciliation against the first respondent and one of its officers who is not involved in this case. We understand that the claimant has subsequently issued proceedings against the first respondent and the named officer under case number 3202314/2023. We have not looked at that file.

[22]On 23 October 2023, the claimant copied the Tribunal into an email timed at 13:18pm to the respondents’ representatives advising that she was ready to exchange lists of documents. The claimant copied the Tribunal into another email timed at 15:46pm on the same date to the respondents’ representatives with a list of documents attached.

[23]On 30 October 2023, the claimant emailed the Tribunal and copied the respondents’ representative. She attached an undated letter to the respondent that:23.1 Stated that she had sent the respondents a list of documents on 23 October;

23.2 Noted that the claimant had not received the respondents’ list; and

23.3 Requested many documents in 10 categories.

[24]On 1 November 2023, the claimant emailed the Tribunal, copying in the respondents’ representatives, with the following attached documents:24.1 “The original ET1”;

24.2 “Its extended version” (which was the document titled “ET1 FORM SECTIN 8.2” that had been submitted with the claimant’s ET1); and

24.3 “The amendment letter pertaining to the pregnancy and occupational health assessment dated 28th December 2022.” (which was a four-page letter dated 31 October 2023 that sought to amend the claimant’s claim by adding a claim of detriment during her pregnancy and/or direct race discrimination for not carrying out a risk assessment on her and an application to amend her claim to “…use the Occupational Health Assessment from 28 December 2022, which provides substantial evidence of further detriment emphasised in my ET1.” The claimant asserted that both matters were referenced in her ET1 and attached document.

[25]The letter stated that, “…these amendments were referenced during the case management hearing held on July 24, 2022, wherein I presented my interest in these specific modifications.” The claimant asked for acknowledgment of receipt and subsequent updates.

[26]On 13 November 2023, the claimant emailed the Tribunal, copying in the respondents’ representatives to complain that the respondents had failed to comply with EJ Beyzade’s case management order to confirm by 25 August 2023 whether they accepted that the claimant met the definition of disability and had also failed to send the claimant a list of documents by 23 October 2023.

[27]The claimant asked the Tribunal to note that the respondents’ failures had impacted on the agreement of documents by 20 November 2023 and the preparation of the final file by 4 December 2023. The claimant submitted that the delays were jeopardising the final hearing and were impacting n the claimant’s mental health. She sought an acknowledgement of the problems and for the Tribunal to issue appropriate orders to rectify the respondents’ breaches.

[28]On 23 November 2023, the respondent proposed an extension of the date for exchange of witness statements to 30 January 2024.

[29]On 24 November, the claimant emailed the Tribunal, copying in the respondent’s representative, with a recap of her email of 13 November 2023 (see above) and notification that the respondent had emailed her on 22 November 2023 denying that the claimant was a disabled person at the relevant time on the grounds that the two impairments contended for had a substantial adverse effect on her ability to carry out normal day to day activities or that, at the time, it was likely to last for more than a year. The respondents also denied knowledge of disability.

[30]The respondents objected to the claimant’s application to amend her claim to include a pregnancy claim as it was out of time.

[31]The claimant pointed out that the respondents’ response was late and sought advice on the implications of the respondents’ non-compliance with Tribunal orders; the steps the claimant may take; and any steps that the Tribunal may take to ensure adherence to orders.

[32]The claimant emailed the Tribunal on 2 December 2023 at 12:53pm requesting specific disclosure of various documents that she said the respondents held.

[33]The claimant emailed the Tribunal again on 2 December 2023 at 15:04pm repeating her complaints about the respondents’ non-compliance with Tribunal orders, specifically:33.1 The respondents had not provided the claimant with a list of documents;

33.2 The claimant had sent the respondent her list;

33.3 The respondents had produced a bundle on 22 November 2023 that included some of her documents but had not consulted with her about the contents of the bundle;

33.4 The respondents had failed to communicate with the claimant about the exchange of lists or the contents of the bundle;

33.5 The bundle produced omitted several documents; and

33.6 Some of the documents had been redacted.

[34]On 16 December 2023, the Tribunal emailed the parties and attached a letter that had been directed by Employment Judge Gordon Walker regarding the claimant’s letters of 1, 13 and 24 November 2023 (including the respondents’ email of 22 November 2023) about the respondents’ failures to comply with case management orders and the claimant’s applications to amend.

[35]EJ Gordon Walker reminded the claimant that the Tribunal cannot provide legal advice and made the following points:35.1 The parties must comply with case management orders;

35.2 If orders are not complied with, the Tribunal may strike out the claim or response; bar or restrict participation in the proceedings; and/or award costs;

35.3 The respondents had complied with the order to confirm their position as to the claimant’s disability status, although it was three months late;

35.4 It was in accordance with the overriding objective to give the respondents a little more time to comply with orders as there was still enough time to vary the orders and be ready for the final hearing; and

35.5 The claimant’s application to amend her claim had been received but could not be determined until the respondent had indicated their position on the application (it may be that EJ Gordon Walker did not see the end of the respondents’ email of 22 November 2023 that opposed the application to amend the claim to include a pregnancy-related matter).

[36]Case management orders were made, and it was suggested that further preliminary hearing may be necessary.

[37]EJ Beyzade’s case management orders were amended so that:37.1 The parties had to send each other lists of documents by 15 December 2023;

37.2 If either party wanted a copy of a document in a list, they had to request it by 22 December 2023, and the copy had to be provided by 29 December 2023;

37.3 The parties were to agree the final bundle by 12 January 2024;

37.4 The respondent was to prepare and send the claimant a copy of the agreed bundle by 26 January 2024;

37.5 Witness statements were to be exchanged on 8 March 2024;

37.6 The parties were to confirm that they were ready for the hearing by 2 April 2024;

37.7 The respondent was to prepare and send to the claimant a chronology, cast list and recommended reading list by 22 March 2024; and

37.8 The claimant and the second and third respondents were to send any comments relating to the three documents to the first respondent by 28 March 2024.

[38]Additionally, EJ Gordon Walker required the respondents to indicate by 15 December 2023 if they objected to the claimant’s application to amend contained in her letter of 31 October 2023 and explain any prejudice that would be caused to them if the application was allowed.

[39]On 12 January 2024, the claimant wrote to the Tribunal about documents that were missing from the respondents’ final hearing file. The letter was placed before Employment Judge Massarella, who caused a letter to be written to the parties on 2 February 2024 instructing them that disputed documents should be placed at the back of the bundle and the final hearing would decide if they were to be admitted. The respondents were ordered to write to the Tribunal by 9 February 2024 to explain why they had made the redactions to the documents in the bundle.

[40]EJ Massarella noted that witness statement exchange had been ordered by EJ Gordon Watson and that the respondents did not appear to have replied to the order to set out their position on the claimant’s application to amend and required them to comply by 9 February 2024.

[41]Meanwhile, the claimant emailed the Tribunal, copying the respondents’ representatives, on 26 January 2024, pointing out further breaches of case management orders:41.1 The respondents had not produced a list of documents by 15 December 2023, as ordered;

41.2 The hearing bundle had been prepared without the claimant’s input; and

41.3 The claimant had not received an electronic copy of the bundle.

[42]The claimant said that the non-compliances had prevented her requesting further documents from the respondents.

[43]The respondents emailed the claimant on 9 February to say that they were ready to exchange witness statements but were awaiting signed copies. On 12 February 2024, the respondents emailed the Tribunal, copying in the claimant, to say that they were ready for the final hearing and had witness statements ready to exchange. They added that if the claimant had additional documents, they would be added to the bundle. In respect of the redactions, the respondents said that “…the only redactions are in relation to names to protect the confidentiality of the individuals whose names are irrelevant to the claims in progress.”

[44]On 12 February 2024, the claimant emailed the Tribunal, copying in the respondents’ representatives. She made the following points:44.1 Key documents had not been disclosed by the respondents;

44.2 Redactions had included redactions of the third respondent’s name and hindered the claimant’s preparation; and

44.3 She wanted a preliminary hearing to resolve outstanding issues.

[45]The claimant continued to send emails to the Tribunal at very frequent intervals making further allegations of non-compliance with case management orders by the respondent. Regrettably, the claimant’s emails tended not to be dealt with before the next one arrived. The Tribunal simply does not have the resources to engage in an almost daily series of emails from one of the parties in a case. It is not proportionate for these Reasons to set out every email between 12 February and the hearing, but the claimant submitted 14 emails. The respondents only emailed in response to the emails sent by the claimant.

[46]Employment Judge Misra KC caused a letter to be written to the parties on 15 March 2024 that made the following points:46.1 The parties should have regard to the overriding objective. The claimant should set out exactly how her preparation has been hindered. The respondent should consider its redaction policy Unreasonable conduct can be punished by costs orders;

46.2 The final hearing remained as listed; and

46.3 If the parties are not able to prepare for the final hearing, they could apply for a one-hour preliminary hearing.

[47]No decision was made on the claimant’s application for a preliminary hearing.

[48]On 4 March 2024, the claimant applied for an extension of time for the exchange of witness statements to 8 March. On 7 March, the claimant asked for permission to supplement her witness statement and chased her request for a preliminary hearing.

[49]On 6 April 2024, the claimant applied for leave to amend her witness statement. On 8 April, she submitted an amended witness statement that was actually a 26- page supplementary statement. The respondents replied on the same date objecting to the new statement being admitted.

[50]Also, on 6 April 2024, the claimant sent another email complaining that the respondents were in breach of paragraph 42 of EJ Beyzade’s case management order, namely, the requirement to agree a final bundle. The claimant attached a document titled “Chronology, List of involved people and key documents in file – Adande v LBH 32002642023.pdf”, which consisted of six pages that listed documents which should have been in the bundle, but were missing, a cast list and the key documents that it was suggested that the Tribunal should read.

[51]The claimant submitted a copy of the version of the bundle that she had received from the respondent, to which she had added the documents that she asserted were missing. This version of the bundle contained 888 pages (including index).

[52]The respondents applied to convert the hearing to a video hearing. The application was granted. The claimant objected but REJ Burgher caused a letter to be written to the parties on 8 April 2024 confirming the hearing would remain listed as a video hearing, but that the claimant could attend the Tribunal offices and use the large screen facility at the East London Hearing Centre.

[53]At 3:05am on 9 April 2024, the claimant sent the Tribunal an email (copied to the respondents) with a PDF titled “Preliminary issues evidence.pdf.” This was a 93- page document that contained Tribunal orders, correspondence between the parties about compliance with Tribunal orders, and correspondence with the Tribunal. The covering email indicated that the PDF was “…the evidence of the preliminary issues I aim to address in our hearing.”

[54]In the event, all the parties turned up in person at 9:30am on the first morning. I had been allocated a day working from home on 9 April 2024. I was not advised that I would be taking on this case until 8:47am on 9 April. My colleagues had been advised that the hearing was by video so did not attend in person on the first day. I did not see the order of REJ Burgher of 8 April until 9:30am on 9 April because I did not have sight of the paper file when I was reading into the case.

[55]We were advised that the claimant had brought in five hard copies of her version of the bundle. The case management order of EJ Beyzade (as amended by EJ Gordon Walker) stated that the respondent was to prepare the bundle. We had not seen the claimant’s emails from Saturday 6 April at this point, as they had not been uploaded onto the digital file. We obtained a copy of the claimant’s bundle of 888 pages via the Tribunals Document Upload Centre (DUC).

[56]The respondents’ version of the bundle on the DUC consisted of 436 pages.

[57]The hearing was scheduled to start at 10:00am. The first three hours of the first day were allocated to the Tribunal to read the documents. The Tribunal met online at the appointed time.

[58]At 10:03am, after the Tribunal discussed the situation online, I asked the Tribunal clerk to send the following email to the parties: “Employment Judge Shore, who is chairing the Tribunal hearing this case, has asked me to write to you both. EJ Shore notes that the case management order of EJ Beyzade dated 3 August 2023 [55-77] tasked the respondent with preparing the final hearing bundle. That bundle was uploaded to the DUC and contains 436 pages. The claimant has also uploaded a bundle that appears to have the respondent’s bundle with several hundred additional pages added. It consists of 888 pages. The Tribunal is currently reading into the case with the intention of starting the hearing proper at 2:00pm today. EJ Shore requires the respondent to advise the Tribunal and the claimant if the larger 888-page bundle is agreed, or whether the claimant will require the leave of the Tribunal to add the additional pages in writing by 11:00am today? The claimant is required to advise the Tribunal why she has added several hundred pages of documents to the bundle by 11:00am today. The claimant is also required to explain to the Tribunal and the respondent in writing by 11:00am today why she has submitted a second witness statement. The parties are asked to join the CVP hearing at 2:00pm.”

[59]We then started our reading pending receipt of responses from the parties. At 11:06am, the respondents’ representative email the Tribunal to advise that they had asked the claimant for a copy of her bundle. They had no idea what was in the claimant’s version, which was not agreed. I arranged for the Tribunal Clerk to provide the respondents’ representative with a copy of the claimant’s 888-page bundle.

[60]At 11:20, the claimant emailed the Tribunal: “Reason creating bundle: Respondent has all my paper bundle evidences since May 2023. I sent the my list of documents on 23.10.23 and upon seeing my lists, respondent confirmed in email that that that have my evidences and will include it in the bundle. Upon receiving their bundle in November 23, 2023, crucial evidences was sent to them. Due to not wanting to be in the same situation of evidence missing, I had to send an electronic copy to respond on 20.03.24. Respondent did not compile this evidences sent to them. They did communicate their readiness for the hearing. They were copied into all my complains about preparation issues for the hearing. Due to not wasting the time or the court. I created a consolidated bundle sent to court and Respondent was copied into my emails. The bundle created by respondent does not include most of the paper bundle and electronic evidences sent to them. Witness statement: I requested fog extension of witness statement on 16.02.24 due to respondent undisclosed evidences which I communicated to the extensively. As specific information relating to people listed or written involve in the proceeding were redacted despite multiple false claims by respondent that this was not the case. Due to not creating the bundle I could refer to evidence in my witness statement originally submitted. I have included most evidences in the preliminary evidence sent to court early this morning.”

[61]The claimant submitted a further email at 11:27am amending some of the typos in the above email.

[62]At 1:19pm, the Tribunal received copies of the claimant’s emails to the Tribunal of 13 and 14 November 2023, which were not in the Tribunal’s digital file.

[63]By 1:00pm, the Tribunal was very confused by what had or had not been done in preparation for the final hearing. We had historical applications from the claimant that did not appear to have been dealt with; two bundles that had a difference of 400 pages between them; an application by the claimant to file an amended witness statement; etc. I asked the Tribunal Clerk to email the parties as follows: “EJ Shore has read most of the documents in the case but was concerned by some of the allegations made by the claimant in her emails to the Tribunal this morning. This has prompted him to look at the Tribunal’s digital file to try and ascertain what has been happening in this case. He has asked me to write to you with the following questions that the Tribunal will expect the parties to provide answers to at 2:00pm this afternoon: 1. There is no record on the Tribunal’s file that the respondent complied with paragraph 24 of EJ Beyzade’s order of 3 August 2023 [page 61 of the bundle] confirming whether it accepts that the claimant was a disabled person because of depression and insomnia at the time that these claims arose. Can the respondent confirm its position and supply a copy of any letter or email sent to the Tribunal in compliance with the order? 2. Did the claimant produce a schedule of loss by 21 August 2023 [paragraph 21 of the order, page 60 of the bundle] as there does not appear to be a copy in either bundle? 3. Why is there no copy of EJ Gordon Walker’s amended case management orders dated 16 December 2023? 4. When did the respondent send the claimant its list of documents [paragraph 25 of the order, page 61] ? 5. When did the claimant send the respondent her list of documents [paragraph 25 of the order, page 61] ? 6. Did the claimant [Note from EJ Shore – this was a typo and should have read ‘respondents’] file an amended ET3/Grounds of Resistance? If it did, why is it not in the bundle? 7. Were the claimant’s applications of 13 and 24 November 2023 ever dealt with either between the parties or by the Tribunal? Are they still outstanding? 8. What was the respondent’s response to the claimant’s email of 26 January 2024 about the documents and bundle? 9. Did the respondent receive the Tribunal’s letter of 2 February 2024 containing the direction of EJ Massarella that any disputed documents were to be placed at the back of the bundle and that the Tribunal at the final hearing would determine whether they would be admitted? 10. In what way was the respondent “fully prepared for the case” on 12 February 2024? 11. Is the claimant’s concern about redaction of documents now resolved? 12. When did the claimant send her first witness statement to the respondent? 13. When did the respondent send its witness statements to the claimant? 14. When did the claimant submit her second witness stamen to the respondent? 15. Did the respondent indicate its readiness for the final hearing by 2 April 2024 as ordered by EJ Gordon Walker? 16. When did the respondent reply to the Tribunal’s email of 5 April 2024 about alleged failures to comply with orders? If it did not respond then, what is its response now?”

[64]We received the respondents’ response (in bold below) at 1:59pm: 1. There is no record on the Tribunal’s file that the respondent complied with paragraph 24 of EJ Beyzade’s order of 3 August 2023 [page 61 of the bundle] confirming whether it accepts that the claimant was a disabled person because of depression and insomnia at the time that these claims arose. Can the respondent confirm its position and supply a copy of any letter or email sent to the Tribunal in compliance with the order? Yes - see email attached - we do not accept that the Claimant had a disability at the relevant time. 2. Did the claimant produce a schedule of loss by 21 August 2023 [paragraph 21 of the order, page 60 of the bundle] as there does not appear to be a copy in either bundle? In her disability impact statement - the Claimant outlines her losses. The Claimant remains in employment, so she outlines loss of injury to feelings. 3. Why is there no copy of EJ Gordon Walker’s amended case management orders dated 16 December 2023? The bundle was completed before the order was sent. 4. When did the respondent send the claimant its list of documents [paragraph 25 of the order, page 61] ? Documents were sent on the 14 July 2023. The Respondent was late with the bundle, which was only finalised on 23 November 2024 - this was due to staff absence due to sickness. 5. When did the claimant send the respondent her list of documents paragraph 25 of the order, page 61] ?The Claimant disclosed health and disability documents on the 06 August. The Claimant wrote several times suggesting that documents were missing. On the 12 February 2024 - the Respondent wrote asking the Claimant to send any other documents she wished to include. The Claimant did not send any until she prepared the new bundle this week. This email is at page 800 of the bundle. 6. Did the claimant file an amended ET3/Grounds of Resistance? If it did, why is it not in the bundle? The Respondent did not file another grounds of resistance. 7. Were the claimant’s applications of 13 and 24 November 2023 ever dealt with either between the parties or by the Tribunal? Are they still outstanding? Yes - the Claimant had the bundle on the 23 November 2023. By the time of the December 2023 - the bundle was prepared. The parties were granted an extension to exchange witness statements on the 08 March - they exchanged witness statement on the 08 March. 8. What was the respondent’s response to the claimant’s email of 26 January 2024 about the documents and bundle? The Respondent wrote to the Claimant on several occasions, including the 12 Feb - that if she sent the document - we would happily add them to the bundle for her. 9. Did the respondent receive the Tribunal’s letter of 2 February 2024 containing the direction of EJ Massarella that any disputed documents were to be placed at the back of the bundle and that the Tribunal at the final hearing would determine whether they would be admitted? Yes - but the Claimant did not send any documents to be added to the bundle. Every document the Claimant sent to the Respondent was put in the bundle. 10. In what way was the respondent “fully prepared for the case” on 12 February 2024? There was confusion as to what the Claimant wanted to do - in one email she suggested that she needed the statements earlier. The original date for exchange was the 08 February 2024 - so the Respondent suggested that it would be happy to exchange on the 08 Feb, instead of the 08 March. The bundle was ready since the 23 Nov - our statements were ready from the 08 February to exchange. 11. Is the claimant’s concern about redaction of documents now resolved? The Respondent has redacted documents excluding names only. This does not impact the Claimant's case whatsoever. 12. When did the claimant send her first witness statement to the respondent? The evening of the 08 Feb - she was a bit late due to compute technicalities. 13. When did the respondent send its witness statements to the claimant?- O8 March at 4 pm as agreed with the Claimant. 14. When did the claimant submit her second witness stamen to the respondent? Last week 15. Did the respondent indicate its readiness for the final hearing by 2 April 2024 as ordered by EJ Gordon Walker? Yes we indicated on the 12 Feb. 20. When did the respondent reply to the Tribunal’s email of 5 April 2024 about alleged failures to comply with orders? If it did not respond then, what is its response now? [No response]

[65]The document referred to in the answer to question 1 was a Word document dated 11 November 2023, that appeared to have originally been an email, which stated the following: “We sincerely apologise for the delay in sending this information. We have received the Claimant's medical notes. We do not accept that the Claimant was a disabled person at the relevant time. We do not accept that either of the Claimant's conditions (mental health impairment or insomnia) at the relevant time impacted her day to day activities in a substantial way and we do not accept that at the relevant time it was likely to last for more than one year. We also don't accept that the Respondent had knowledge of a disability or any likely impact, again, at the relevant time. We do not accept the Claimant's application to amend her claim to include the pregnancy claim. The claim is significantly out of time and we don't see how it is made out.”

[66]We did not receive a response from the claimant.

The law

[67]The law is stated as it was on the date of the hearing.

[68]For the purposes of the whistleblowing detriment claims, the relevant law is contained in sections 43B and 47B of the ERA 1996. 43B Disclosures qualifying for protection. “(1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following—(a) that a criminal offence has been committed, is being committed or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged, or

(f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed. (2) For the purposes of subsection (1), it is immaterial whether the relevant failure occurred, occurs, or would occur in the United Kingdom or elsewhere, and whether the law applying to it is that of the United Kingdom or of any other country or territory. (3) A disclosure of information is not a qualifying disclosure if the person making the disclosure commits an offence by making it. (4) A disclosure of information in respect of which a claim to legal professional privilege (or, in Scotland, to confidentiality as between client and professional legal adviser) could be maintained in legal proceedings is not a qualifying disclosure if it is made by a person to whom the information had been disclosed while obtaining legal advice. (5) In this Part “the relevant failure”, in relation to a qualifying disclosure, means the matter falling within paragraphs (a) to (f) of subsection (1).

[69]The right not to be subjected to detriment short of dismissal on the ground that a worker made a protected disclosure is contained in section 47B of the Employment Rights Act 1996: 47B Protected disclosures.(1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure. (1A) A worker (“W”) has the right not to be subjected to any detriment by any act, or any deliberate failure to act, done— (a)by another worker of W's employer in the course of that other worker's employment, or (b)by an agent of W's employer with the employer's authority, on the ground that W has made a protected disclosure. (1B) Where a worker is subjected to detriment by anything done as mentioned in subsection (1A), that thing is treated as also done by the worker's employer. (1C) For the purposes of subsection (1B), it is immaterial whether the thing is done with the knowledge or approval of the worker's employer. (1D) In proceedings against W's employer in respect of anything alleged to have been done as mentioned in subsection (1A)(a), it is a defence for the employer to show that the employer took all reasonable steps to prevent the other worker— (a)from doing that thing, or (b)from doing anything of that description. (1E) A worker or agent of W's employer is not liable by reason of subsection (1A) for doing something that subjects W to detriment if— (a )the worker or agent does that thing in reliance on a statement by the employer that doing it does not contravene this Act, and (b) it is reasonable for the worker or agent to rely on the statement. But this does not prevent the employer from being liable by reason of subsection (1B).

(2) This section does not apply where— (a)the worker is an employee, and (b)the detriment in question amounts to dismissal (within the meaning of Part X). (3 )For the purposes of this section, and of sections 48 and 49 so far as relating to this section, “ worker ”, “ worker’s contract ”, “ employment ” and “ employer ” have the extended meaning given by section 43K.”

[70]The definition of what constitutes a protected disclosure is contained in section 43B of the Employment Rights Act 1996: Disclosures qualifying for protection. “(1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following—(a) that a criminal offence has been committed, is being committed or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged, or

[71]The relevant time limits for bringing a claim of detriment because a worker made a protected disclosure is contained in section 48(3) to (4A) of the Employment Rights Act 1996: “(3) An employment tribunal shall not consider a complaint under this section unless it is presented—(a) before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them, or

(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months. (4) For the purposes of subsection (3)— (a) where an act extends over a period, the “date of the act” means the last day of that period, and (b) a deliberate failure to act shall be treated as done when it was decided on; and, in the absence of evidence establishing the contrary, an employer…shall be taken to decide on a failure to act when he does an act inconsistent with doing the failed act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the failed act if it was to be done. (4A) Section 207B (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of subsection (3)(a).

[72]The statutory law in discrimination cases is contained within the ERA 1996 and the EqA 2010. We reproduce below sections 13, 26, 27, 123 and 136 of the EqA 2010, which are relevant to the race discrimination claims. 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; and

(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— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect. 27. Victimisation A person (A) victimises another person (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. 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; (c) making an allegation (whether or not express) that A or another person has contravened this Act. Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.

[73]The relevant statutory law relating to the claims of disability discrimination are contained in the following sections of the Equality Act 2010: 6. Disability A person (P) has a disability if—(a) P has a physical or mental impairment, and

(b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities. A reference to a disabled person is a reference to a person who has a disability. 13. Direct discrimination A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. 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— (g) age; (h) disability; (i) gender reassignment; (j) race: (k) religion or belief; (l) sex; (g) sexual orientation. 15. Discrimination arising from disability A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B’s disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim. The section does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability. 20. Adjustments for disabled persons Duty to make adjustments (1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as

a. A. (2) The duty comprises the following three requirements. (3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. (4) The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. (5) The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid. (6) Where the first or third requirement relates to the provision of information, the steps which it is reasonable for A to have to take include steps for ensuring that in the circumstances concerned the information is provided in an accessible format. (7) A person (A) who is subject to a duty to make reasonable adjustments is not (subject to express provision to the contrary) entitled to require a disabled person, in relation to whom A is required to comply with the duty, to pay to any extent A's costs of complying with the duty. (8) A reference in section 21 or 22 or an applicable Schedule to the first, second or third requirement is to be construed in accordance with this section. (9) In relation to the second requirement, a reference in this section or an applicable Schedule to avoiding a substantial disadvantage includes a reference to— (a) removing the physical feature in question, (b) altering it, or

(c) providing a reasonable means of avoiding it. (10) A reference in this section, section 21 or 22, or an applicable Schedule (apart from paragraphs 2 to 4 of Schedule 4) to a physical feature is a reference to— (a) a feature arising from the design or construction of a building, (b) a feature of an approach to exit from or access to a building, (c) a fixture or fitting, or furniture, furnishings, materials, equipment, or other chattels, in or on premises, or

(d) any other physical element or quality. (11) A reference in this section, section 21 or 22 or an applicable Schedule to an auxiliary aid includes a reference to an auxiliary service. (12) A reference in this section or an applicable Schedule to chattels is to be read, in relation to Scotland, as a reference to moveable property. (13) The applicable Schedule is, in relation to the Part of this Act specified in the first column of the Table, the Schedule specified in the second column. 21. Failure to comply with duty (1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments. (2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person. (3) A provision of an applicable Schedule which imposes a duty to comply with the first, second or third requirement applies only for the purpose of establishing whether A has contravened this Act by virtue of subsection (2); a failure to comply is, accordingly, not actionable by virtue of another provision of this Act or otherwise. 26. Prohibited conduct (Harassment) A person (A) harasses another (B) if (d) A engages in unwanted conduct related to a relevant protected characteristic, and

(e) the conduct has the purpose or effect of— (j) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for

b. B. In deciding whether conduct has the effect referred to, each of the following must be taken into account— (c) the perception of B; (d) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect. 27. Victimisation A person (A) victimises another person (B) if A subjects B to a detriment because— (b) B does a protected act, or (b) A believes that B has done, or may do, a protected act. Each of the following is a protected act— (d) bringing proceedings under this Act; (e) giving evidence or information in connection with proceedings under this Act;

(f) doing any other thing for the purposes of or in connection with this Act; (f) making an allegation (whether or not express) that A or another person has contravened this Act. Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.

[74]The following sections of the Equality Act 2010 are common to claims of race discrimination, disability discrimination and victimisation and deal with time limits and the burden of proof in evidence: 123. Time limits(1) Subject to sections 140A and 140B proceedings on a complaint within section 120 may not be brought after the end of— (a)the period of 3 months starting with the date of the act to which the complaint relates, or (b)such other period as the employment tribunal thinks just and equitable.

(2) Proceedings may not be brought in reliance on section 121(1) after the end of— (a)the period of 6 months starting with the date of the act to which the proceedings relate, or (b)such other period as the employment tribunal thinks just and equitable.

(3) For the purposes of this section— (a)conduct extending over a period is to be treated as done at the end of the period; (b)failure to do something is to be treated as occurring when the person in question decided on it.

(4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a)when P does an act inconsistent with doing it, or (b)if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it. 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…

[75]We were referred to precedent cases by Mr Lester in his closing submissions. We considered all the case law that was presented before making our decision. We found Mr Lester’s submissions on the case law related to disability and the test in section 6 of the Equality Act 2010 was an accurate summation of the law, as far as it went, and is reproduced below. The claimant made submissions on the law but did not comment on Mr Lester’s submissions: Disability “In J v DLA Piper UK LLP

UKEAT/0263/09

, the EAT confirmed that, particularly in cases where the mental impairment is disputed, the focus of the tribunal's enquiry should now be on the effect the impairment has on an employee's day-to-day activities. The EAT drew a distinction between symptoms of low mood and anxiety caused by clinical depression and those that derived from a "medicalization of work problems" or "adverse life events". While the former was likely to be a disability, the latter was not. In Herry v Dudley Metropolitan Council

UKEAT/0100/16

and Herry v Dudley Metropolitan Council and Governing Body of Hillcrest School

UKEAT/0101/16

, the claimant was unable to establish disability because the difficulties they were encountering were due to a reaction to difficulties at work rather than a mental impairment. In Tesco Stores Ltd v Tennant UKEAT/01617/19, the EAT confirmed that an impairment must have long-term effect at the time that the alleged acts of discrimination are committed. Therefore, if the claimant's condition has not lasted at least 12 months at the time of the alleged discriminatory act (or, if there is more than one act, at the time of each act), the claimant will not meet the definition of disability unless they can instead show that, at the time of the alleged discriminatory act (or acts), their condition was likely to last 12 months or for the rest of their life. Importantly, in Seccombe v Reed in Partnership Ltd EA-2019-000478, the EAT observed that the long-term requirement relates to the effect of the impairment rather than merely the impairment itself. It is therefore not sufficient that a person has an impairment that is long-term; the impairment must have a substantial adverse effect on day-to-day activities that is long-term. Note however that paragraph 5(1) of Schedule 1 to the EqA 2010 makes allowance for the effect of any corrective treatment in considering the question of ‘substantial adverse effect’; ‘an impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if measures are being taken to treat or correct it, and but for that, it would be likely to have that effect’. ‘Likely’ in this context means ‘could well happen’ (rather than, on the balance of probabilities), per the EqA 2010 Guidance at paragraph C3. Per the Court of Appeal in All Answers Ltd v Mr W

[2021] EWCA Civ 606

, the key question is whether, at the time of the alleged discrimination, the effect of an impairment has lasted or is likely to last at least 12 months. That is to be assessed by reference to the facts and circumstances existing at that date and so, in terms of the long-term effect of the impairment, the tribunal is not entitled to have regard to events occurring subsequently. One authority suggests that a Claimant’s behaviour when before a Tribunal may be taken into account, but warns that the Tribunal must ‘bear in mind that behaviour before a tribunal may not be representative of behaviour generally.’ (EAT in Ekpe v Commissioner of Police for the Metropolis

[2001] IRLR 605

[2001] ICR 1084

, at 1093). However, by contrast, it has also been held that the Tribunal must perform the artificial exercise of considering what the prognosis was likely to have been in light of the information at the time of the act of discrimination; the assessment of the likelihood of the adverse effect lasting for 12 months is to be made as at the date of the alleged discrimination and must not take into account anything only known or occurring after that time: All Answers Ltd v W

[2021] EWCA Civ 606

[2021] IRLR 612

. As such it would seem to be an impermissible approach to take to consider a Claimant’s behaviour at a hearing. It is submitted that the latter approach is likely the correct one, not least given the minefield that would be represented by tribunals attempting to discern likelihood of long-term conditions based on non-expert views taken of the Claimant’s medical presentation at a hearing (not to mention that All Answers Ltd is a Court of Appeal authority versus Ekpe being an EAT decision). Per Harvey on Industrial Relations and Employment Law (2024), ‘Para 2(2) of EqA 2010 Sch 1 provides that if an impairment has had a substantial adverse effect but that effect ceases, the substantial adverse effect is treated as continuing if it is likely that the effect will recur.’ However, again, likelihood of recurrence must be judges on the basis of what was known at the time the discrimination took place; matters thereafter must be disregarded as irrelevant (Richmond Adult Community College v McDougall

[2008] EWCA Civ 4

[2008] ICR 431

.)”

[76]We also found Mr Lester’s submissions on the case law relating to time limits in discrimination cases to be accurate, as far as they went, and reproduce them below: Time Limits “By section 123(1) of the Equality Act 2010, a claim under that Act ‘shall not be brought after the end’ of the time limit, that being at the end of ‘the period of three months starting with the date of the act to which the complaint relates’ (section 123(1), EqA 2010) – though acts occurring more than three months before the claim is brought may still form the basis of the claim if they are part of ‘conduct extended over a period’, and the claim is brought within three months of the end of that period (section 123(3)). The tribunal has the discretion to extend the time limit for a discrimination claim to be presented by such further period as it considers just and equitable (section 123(1)(b), EqA 2010). The Court of Appeal has held in relation to the discretion to grant extensions of time in discrimination claims, that the discretion is wide, that time limits are applied strictly in employment cases and there is no presumption in favour of extending time, and tribunals should not extend time unless the Claimant convinces them that it is just and equitable to do so (Bexley Community Centre (t/a Leisure Link) v Robertson

[2003] EWCA Civ 576

). The emphasis should be on whether the delay has affected the ability of the tribunal to conduct a fair hearing (DPP v Marshall

[1998] IRLR 494

) and the section 33 Limitation Act 1980 factors may be considered by a tribunal in coming to its decision (though they are not directly applicable and tribunals should not adopt a mechanistic approach):(i) The length of and reasons for the delay;

(ii) The extent to which the cogency of the evidence is likely to be affected by the delay;

(iii) The extent to which the party sued had co-operated with any requests for information;

(iv) The promptness with which the claimant acted once they knew of the possibility of taking action;

(v) The steps taken by the claimant to obtain appropriate professional advice once they knew of the possibility of taking action (see Adedeji v University Hospitals Birmingham NHS Foundation Trust

[2021] EWCA Civ 23

). In Kumari v Greater Manchester Mental Health NHS Foundation Trust

[2022] EAT 132

, a tribunal refused to extend time for submission of Ms Kumari's race discrimination claim having weighed in the balance its view that the merits of the claim appeared to be weak. Upholding the tribunal's decision, the EAT found that it was not, in principle, wrong to consider and assess the merits of a proposed claim, and to weigh these in the balance, even if the tribunal was not in a position to say that it was so weak as to have no reasonable prospect of success.”

[77]We found Mr Lester accurately summarised the case law on time limits in whistleblowing cases and reproduce his submissions below: “A claim for detriment under section 47B of the ERA 1996 must be presented ‘before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them’ (section 48(3)(a), ERA 1996). Where an act extends over a period, the date of the act means the last day of that period (section 43(4)(a), ERA 1996). A deliberate failure to act is treated as done when it was decided on. An employer is deemed to have decided on a failure to act when they do an act inconsistent with the failed act or, otherwise, at the end of the period within which they might reasonably have been expected to do the failed act (section 43(4)(b), ERA 1996). A tribunal may only extend time for presenting a claim where it is satisfied either that(a) it was "not reasonably practicable" for the complaint to be presented in time, and even if that was the case,

(b) the claim was nevertheless presented ‘within such further period as the tribunal considers reasonable’. (Section 111(2)(b) ERA 1996; section 48(3)(b) ERA 1996) The burden of proof for establishing that it was not reasonably practicable to present the claim in time is on the claimant. If a tribunal is satisfied that it was not reasonably practicable to present a claim within the time limit, it must then go on to consider whether the claim was presented "within such further period as the tribunal considers reasonable" (section 111(2), ERA 1996). The question is whether the tribunal considers the claim was submitted within a reasonable time after the original time limit expired (University Hospitals Bristol NHS Foundation Trust v Williams

UKEAT/0291/12

). Per the EAT in Cygnet Behavioural Health Ltd v Britton

[2022] EAT 108

, ‘A person who is considering bringing a claim for unfair dismissal is expected to appraise themselves of the time limits that apply; it is their responsibility to do so.’ [53] It is submitted a similar approach should apply in other ERA claims such as those in the instant case.

[78]In her closing submissions, the claimant referred us to:78.1 Land Registry v Grant (CA)

[2011] ICR 1390

at [11];

78.2 Southwark London Borough Council v Afolabi

[2003] EWCA Civ 15

; [2003] ICR;

78.3 Mr C Richman v Knowsley Metropolitan Borough Council (

UKEAT/0047/13/DM

);

78.4 Owusu v London Fire & Civil Defence Authority

[1995] IRLR 575

; and

78.5 Hendricks v Commissioner of Police for the Metropolis Tribunal’s Summary of Law Burden of Proof in Discrimination Cases

[79]The statutory law regarding the burden of proof in discrimination cases is set out in section 136 of the EqA (see above). The law is complex and nuanced. We acknowledge that it is difficult for a claimant to switch the burden of proof because there are few cases where there is clear and incontrovertible evidence that discrimination has taken place. The reality of that situation gave rise to the use of inferences that a Tribunal can draw from the evidence to assist it to make decisions about whether the burden switches or whether discrimination has occurred.

[80]A Tribunal must always be aware of the possibility of unconscious bias in its thinking and in the acts and omissions of respondents. We considered the possibility of unconscious bias in this case.

[81]Igen v Wong is the leading authority in relation to the application of the burden of proof set out in section 136 EqA in relation to discrimination cases. It is not sufficient for a claimant simply to prove facts from which the tribunal could conclude that the Respondent “could have” committed an unlawful act of discrimination. The claimant must prove facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the respondent did commit an unlawful act of discrimination.

[82]It is not sufficient to shift the burden of proof (in relation to a direct discrimination complaint) for a claimant to show only a difference in status and a difference in treatment. These are bare facts which only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the Respondent had committed an unlawful act of discrimination. (Madarassy v Nomura International Plc).

[83]Madarassy also demonstrates that ‘could conclude’ “…must mean that ‘a reasonable tribunal could properly conclude’ from all the evidence before it.” This would include evidence brought by a claimant in support of the allegations of sex discrimination, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint (excluding any explanation for the conduct).

[84]In Artem Limited v Edwins

[2024] EAT 136

this was also emphasised by HHJ Tayler, who stated that in relation to considering whether there was sufficient evidence to shift the burden of proof “an Employment Tribunal should not ignore evidence that suggests discrimination. However, I should also add that it is important that Employment Tribunals do not ignore evidence that suggests there has not been discrimination. What must be ignored at the first stage is any exculpatory explanation for the treatment.”

[85]In Igen, the Court of Appeal, in approving the revised “Barton Guidance”, stated that if the burden of proof has moved to the respondent: “10) It is then for the respondent to prove that it did not commit, or as the case may be, is not to be treated as having committed, that act. 11) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of [the protected characteristic]... 12)That requires a tribunal to assess not merely whether the Respondent has proven an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that [the protected characteristic] was not a ground for the treatment in question.” [paragraph 76 of the Judgment]

[86]In relation to a complaint of discrimination arising from disability, in order to establish facts in a case of discrimination from which the Tribunal could conclude, in the absence of any explanation, that a respondent had contravened the Equality Act 29010, the claimant has the burden of proving(i) that they were treated unfavourably by the employer;

(ii) that the “something” they rely on arose as a consequence of disability. If these elements are established and there are facts from which it could be inferred that the “something” was the reason for the unfavourable treatment, the burden of proof will shift to the respondent (Pnaiser v NHS England

2016 IRLR 170

, EAT).

[87]In relation to a complaint of a failure to make reasonable adjustments, establishing that there is a provision, criterion, or practice (“PCP”) and demonstrating that this caused substantial disadvantage to the claimant, “…are simply questions of fact for the tribunal to decide after hearing all the evidence, with the onus of proof resting throughout on the claimant.” (paragraph 45 of the Judgment in Project Management Institute v Latif

[2007] IRLR 579

, EAT). However, proving the facts is not sufficient to shift the burden of proof to the respondent. Unless there is evidence before the Tribunal of an adjustment which at least on its face appears reasonable and which would mitigate or eliminate the disadvantage, the burden does not shift to the respondent (paragraphs 49 and 53, Latif).

[88]If the burden does shift to the respondent, it must then show why it was not reasonable to make the relevant adjustment and/or the question of whether the proposed adjustment would have removed the disadvantage. Time Limits in Discrimination Cases

[89]The relevant provisions of section 123 of the EqA (see above) are: 89.1. A claim must be brought after the end of a period of three months starting with the date of the act (or omission) to which the complaint relates; or 89.2. Such other period as the employment tribunal thinks just and equitable; 89.3. The period of three months can be extended by the ACA early conciliation process; 89.4. Conduct extending over a period is to be treated as done at the end of the period; 89.5. In the absence of evidence to the contrary, a respondent will be treated as failing to do something when it does an act inconsistent with doing it; or 89.6. If the respondent does no inconsistent act, on the expiry of the period in which the respondent might reasonably have been expected to do it.

[90]“Conduct extending over a period” was considered in the case of Commissioner of Police of the Metropolis v Hendricks

[2002] EWCA Civ 1686

. The Court of Appeal said this: “52. The concepts of policy, rule, practice, scheme or regime in the authorities were given as examples of when an act extends over a period. They should not be treated as a complete and constricting statement of the indicia of “an act extending over a period”. I agree with the observation made by Sedley LJ, in his decision on the paper application for permission to appeal, that the appeal tribunal allowed itself to be side-tracked by focusing on whether a “policy” could be discerned. Instead, the focus should be on the substance of the complaint that the commissioner was responsible for an ongoing situation or a continuing state of affairs in which female ethnic minority officers in the service were treated less favourably. The question is whether that is “an act extending over a period” as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed.”

[91]Conduct extending over a period may relate to more than one different protected characteristic – Worcestershire Health and Care NHS Trust v Allen

[2024] EAT 40

[92]Any act which is found not to be an act of discrimination cannot be part of a continuing act – South Western Ambulance Service NHS Foundation Trust v King

[2020] IRLR 168

, EAT.

[93]Time starts to run in reasonable adjustment cases as set out in section 123(4): the employer is to be taken as deciding not to do something either when it does an act inconsistent with doing it, or if there is no inconsistent act, on the expiry of the period in which it might reasonably have been expected to do it.

[94]In in Fernandes v Department for Work and Pensions EAT [2023] 114, the EAT summarised the position established in the leading cases of Matuszowicz v Kingston Upon Hull City Council

[2009] IRLR 288

and Abertawe Bro Morgannwg University Local Health Board v Morgan

[2018] EWCA Civ 640

as follows at paragraph 16. “The principles set out in the existing authorities amount to the following propositions:a. The duty to make an adjustment, under the statutory scheme, arises as soon as there is a substantial disadvantage to the disabled employee from a PCP (presuming the knowledge requirements are met) and failure to make the adjustment is a breach of the duty once it becomes reasonable for the employer to have to make the adjustment.

b. Where the employer is under a duty to make an adjustment, however, limitation may not begin to run from the date of breach but at a later notional date. As is the case where the employer is under a duty to make an adjustment and omits to do so there will be a notional date where time begins to run whether the same omission continues or not.

c. That notional date will accrue if the employer does an act inconsistent with complying with the duty.

d. If the employer does not act inconsistently with the duty the notional date will accrue at a stage where it would be reasonable for the employee to conclude that the employer will not comply, based on the facts known to the employee.”

[95]The question of when the Tribunal should use its discretion on extending time is set out in Abertawe Bro Morgannwg University Local Health Board v Morgan: “[18] … It is plain from the language used (“such other period as the employment tribunal thinks just and equitable”) that Parliament has chosen to give the employment tribunal the widest possible discretion. Unlike section 33 of the Limitation Act 1980, section 123(1) of the Equality Act does not specify any list of factors to which the tribunal is instructed to have regard, and it would be wrong in the circumstances to put a gloss on the words of the provision or to interpret it as if it contained such a list … [19] …that said, factors which are almost always relevant to consider when exercising any discretion whether to extend time are:(a) the length of, and reasons for, the delay and

(b) whether the delay has prejudiced the respondent (for example, by preventing or inhibiting it from investigating the claim while matters were fresh).” 79. Legatt LJ went on to say [25] “As discussed above, the discretion given by section 123(1) of the Equality Act 2010 to the employment tribunal to decide what it “thinks just and equitable” is clearly intended to be broad and unfettered. There is no justification for reading into the statutory language any requirement that the tribunal must be satisfied that there was a good reason for the delay, let alone that time cannot be extended in the absence of an explanation of the delay from the claimant. The most that can be said is that whether there is any explanation or apparent reason for the delay and the nature of any such reason are relevant matters to which the tribunal ought to have regard.”.

[96]We applied all the above law in making our decision below.

The issues

[97]The Issues in the claim were set out in EJ Beyzade’s case management order ([§58] [68-76]) of 5 August 2023 that was sent to the parties on 8 August 2023 [55-76].

[98]It was agreed that the issues in the case were: 1. Employment status 1.1 The first respondent accepts that the claimant was an employee of the first respondent at all material times. 2. Time limits2.1 Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 03 September 2022 may not have been brought in time.

2.2 Were the discrimination and victimisation complaints made within the time limit in section 123 of the Equality Act 2010?The Tribunal will decide:2.2.1 Was the claim made to the Tribunal within three months(plus early conciliation extension)of the act to which the complaint relates?

2.2.2 If not, was there conduct extending over a period?

2.2.3 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?

2.2.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:2.2.4.1 Why were the complaints not made to the Tribunal in time?

2.2.4.2 In any event, is it just and equitable in all the circumstances to extend time?

2.3 Was the protected disclosure detriments complaint made within the time limit in section 48 of the Employment Rights Act 1996?The Tribunal will decide:2.3.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act complained of?

2.3.2 If not, was there a series of similar acts or failures and was the claim made to the Tribunal within three months (plus early conciliation extension) of the last one?

2.3.3 If not, was it reasonably practicable for the claim to be made to the Tribunal within the time limit?

2.3.4 If it was not reasonably practicable for the claim to be made to the Tribunal within the time limit, was it made within a reasonable period? 3. Protected disclosure

3.1 Did the claimant make one or more qualifying disclosures as defined in section 43B of the Employment Rights Act 1996? The Tribunal will decide:3.1.1 What did the claimant say or write? When? To whom? The claimant says she made disclosures on these occasions:3.1.1.1 On 04 February 2022 the claimant complained by email that as a result of working at the Cocoon she was suffering from health issues;

3.1.1.2 On 24 February 2022 by email the claimant complained about the first respondent not following fair recruitment procedures in respect of Sean Kelly;

3.1.1.3 On 08 April 2022 the claimant also complained to the first respondent’s Occupational Health consultant that as a result of working at the Cocoon she was suffering from health issues;

3.1.1.4 In her grievance dated 19 October 2022 [Note – this date was amended with the consent of the parties from 16 October 2022] the claimant complained about the working conditions and health and safety within the Cocoon building; and

3.1.1.5 She repeated her concerns to the third respondent during conversations with her on 17 October 2022 and she sent an email summarising the conversation on 19 October 2022 (including evidence of other staff complaints). She also repeated her concerns during a meeting with the third respondent and the HR manager, Lynette Hart [Note – the spelling of Lynette was amended from Lynecte with the consent of the parties] on 03 November 2022.

3.1.2 Did she disclose information?

3.1.3 Did she believe the disclosure of information was made in the public interest?

3.1.4 Was that belief reasonable?

3.1.5 Did she believe it tended to show that:3.1.5.1 a person had failed, was failing or was likely to fail to comply with any legal obligation; and/or

3.1.5.2 the health or safety of any individual had been, was being or was likely to be endangered;

3.1.6 Was that belief reasonable?

3.2 If the claimant made a qualifying disclosure; it was a protected disclosure because it was made to the claimant’s employer. 4. Detriment (Employment Rights Act 1996 section 48)

4.1 Did the respondents do the following things:4.1.1 In relation to the claimant’s complaint dated 24 February 2022, although she received a telephone call from the second respondent to take more information about this, the claimant was not sent any notes, there was no follow up call or letter, or outcome.

4.1.2 By failing to manage her grievance fairly including not resolving her grievance within a reasonable time and not treating her grievance seriously (and not providing her with notes relating to her grievance).

4.1.3 On 22 November 2022 the second respondent required the claimant to work at Cocoon and she sent an email to that effect.

4.1.4 On 22 November 2022 the third respondent told the claimant that she was being hysterical and questioned why she was traumatised. She said did not understand why the claimant could not work there.

4.1.5 By failing to provide a risk assessment in relation to the claimant and her role on or around 08 April 2022.

4.2 By doing so, did it subject the claimant to detriment?

4.3 If so, was it done on the ground that she made a protected disclosure? 5. Remedy for Protected Disclosure Detriment

5.1 What financial losses has the detrimental treatment caused the claimant?

5.2 What injury to feelings has the detrimental treatment caused the claimant and how much compensation should be awarded for that?

5.3 Has the detrimental treatment caused the claimant personal injury and how much compensation should be awarded for that?

5.4 Is it just and equitable to award the claimant other compensation?

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

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

5.7 If so, is it just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25%?

5.8 Did the claimant cause or contribute to the detrimental treatment by their own actions and if so, would it be just and equitable to reduce the claimant’s compensation? By what proportion?

5.9 Was the protected disclosure made in good faith?

5.10 If not, is it just and equitable to reduce the claimant’s compensation? By what proportion, up to 25%? 6. Disability 6.1 Did the claimant have a disability as defined in section 6 of the Equality Act 2010 at the time of the events the claim is about? The Tribunal will decide:

6.1.1 Did she have a mental impairment: namely depression and insomnia which she has suffered from since February 2022?

6.1.2 Did it have substantial adverse effect on her ability to carry out day- to-day activities?

6.1.3 If not, did the claimant have medical treatment, including medication, or take other measures to treat or correct the impairment?

6.1.4 Would the impairment have had a substantial adverse effect on her ability to carry out day-to-day activities without treatment or other measures?

6.1.5 Were the effects of the impairment long-term? The Tribunal will decide:6.1.5.1 did they last at least 12 months, or were they likely to last at least 12 months?

6.1.5.2 if not, were they likely to recur? 7. Direct disability discrimination (Equality Act 2010 section 13)

7.1 The claimant’s disability she relies on is a mental impairment: namely depression and insomnia which she has suffered from since February 2022, and she compares herself with a hypothetical non disabled employee of the first respondent.

7.2 Did the respondents do the following things:7.2.1 On 04 February 2022 the second respondent was informed by Kemi Akosile and Daniel Holmes that the claimant became unwell due to the conditions within the Cocoon by email. There was no response sent or any risk assessment provided.

7.2.2 On 22 November 2022 the second respondent required the claimant to work at Cocoon, and she sent an email to that effect.

7.2.3 On 22 November 2022 the third respondent told the claimant that she was being hysterical and questioned why she was traumatised. She said did not understand why the claimant could not work there.

7.3 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 she was treated worse than someone else would have been treated. The claimant has not named anyone in particular who she says was treated better than she was.

7.4 If so, was it because of disability? 8. Discrimination arising from disability (Equality Act 2010 section 15)

8.1 Did the respondents treat the claimant unfavourably by: 8.1.1 The claimant says that the unfavourable treatment was the requirement for the claimant to work at the Cocoon by the second and third respondent.

8.2 Did the following things arise in consequence of the claimant’s disability: 8.2.1 The claimant’s sickness absence between11 March 2022 until 14 April 2022 and after 22 November 2022-10 January 2023?

8.3 Was the unfavourable treatment because of any of those things?

8.4 Was the treatment a proportionate means of achieving a legitimate aim? The respondents says that their aims were: 8.4.1 the respondents’ representative undertook to provide details of this within the amended Grounds of Resistance (filed pursuant to paragraph 12 of the Case Management Order of 3 August 2023).

8.5 The Tribunal will decide in particular:8.5.1 was the treatment an appropriate and reasonably necessary way to achieve those aims;

8.5.2 could something less discriminatory have been done instead.

8.5.3 how should the needs of the claimant and the respondents be balanced?

8.6 Did the respondents know, or could it reasonably have been expected to know that the claimant had the disability? From what date? 9. Reasonable Adjustments (Equality Act 2010 sections 20 & 21)

9.1 Did the respondents know, or could they reasonably have been expected to know that the claimant had the disability? From what date?

9.2 A “PCP” is a provision, criterion, or practice. Did the respondents have the following PCPs: 9.2.1 The PCP relied upon by the claimant is placing her on the rota to work at the Cocoon which she says placed her at a substantial disadvantage.

9.3 Did the PCPs put the claimant at a substantial disadvantage compared to someone without the claimant’s disability, in that the claimant was not able to work at the Cocoon because of her disability?

9.4 Did the respondents know, or could they reasonably have been expected to know that the claimant was likely to be placed at the disadvantage?

9.5 What steps could have been taken to avoid the disadvantage? The claimant suggests:9.5.1 Not placing her on the rota to work at the Cocoon on 03 November 2022.

9.5.2 Providing a risk assessment in relation to the claimant and her role on 08 April 2022.

9.6 Was it reasonable for the respondents to have to take those steps and when?

9.7 Did the respondents fail to take those steps? 10. Harassment related to disability (Equality Act 2010 section 26)

10.1 Did the respondents do the following things:10.1.1 On 04 February 2022 the second respondent was informed by Kemi Akosile and Daniel Holmes that the claimant became unwell due to the conditions within the Cocoon by email. There was no response sent or any risk assessment provided.

10.1.2 On 22 November 2022 the second respondent required the claimant to work at Cocoon, and she sent an email to that effect.

10.1.3 On 22 November 2022 the third respondent told the claimant that she was being hysterical and questioned why she was traumatised. She said did not understand why the claimant could not work there.

10.2 If so, was that unwanted conduct?

10.3 Did it relate to disability?

10.4 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?

10.5 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. 11. Direct race discrimination (Equality Act 2010 section 13)

11.1 The claimant’s race is Black, and she compares herself with a colleague working in the same role as her. Alternatively, the claimant relies on a hypothetical comparator.

11.2 Did the respondents do the following things:11.2.1 On 26 July 2022 the claimant’s line manager, Kemi Akosile notified the second respondent about her travel and hotel expenses and the second respondent put the claimant unnecessarily put the claimant through a stressful process.

11.2.2 On 13 January 2020 the claimant was not appointed to the role of Pathway Coordinator, but a white colleague named Sheralyn Hedges (who had less experience and skills and did not have the systemic qualification that the claimant had) was appointed.

11.2.3 On 16 February 2022 Sean Kelly, a white member of staff was provided with interview questions and answers for the Pathway CoOrdinator role. The claimant was not provided with the questions and answers and the claimant was not provided with these when she applied in 2020.

11.2.4 In around January 2022 the third respondent told the claimant and her team that there was a Pathway Co-ordinator position coming up and that they did not need to apply because they will all become Pathway Co-Ordinator automatically. This was confirmed in a supervision meeting on 22 February 2022. The claimant was told that a restructuring to enable her to take up the role of Pathway Co-Ordinator would take place in September 2022. This did not happen. Sean Kelly was appointed to the Pathway Co-Ordinator role on around 16 February 2022.

11.2.5 On 03 October 2022 Kate Dempsey informed the claimant that the second respondent asked her to update the claimant that they could not fund her request to study an Open University social work masters’ course. In June 2022 Sheralyn Hedges advised the claimant that the second respondent had been pushing her to apply but she did not want to.

11.3 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 she was treated worse than someone else would have been treated. The claimant says she was treated worse than her colleagues who were white and who are named in the allegations at paragraph 11.2 above. Alternatively, if the Tribunal finds that there was nobody in the same circumstances as the claimant, the claimant will rely on a hypothetical comparator.

11.4 If so, was it because of race? 12. Harassment related to race (Equality Act 2010 section 26)

12.1 Did the respondents do the following things: 2.1.1 On 03 October 2022 Kate Dempsey informed the claimant that the second respondent asked her to update the claimant that they could not fund her request to study an Open University social work masters’ course. In June 2022 Sheralyn Hedges advised the claimant that the second respondent had been pushing her to apply but she did not want to.

12.2 If so, was that unwanted conduct?

12.3 Did it relate to race?

12.4 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?

12.5 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. 13. Victimisation (Equality Act 2010 section 27)

13.1 Did the claimant do a protected act as follows: 13.1.1 The protected act relied upon by the claimant is the claimant’s grievance dated 19 October 2022.

13.2 Did the respondents do the following things:13.2.1 On 22 November 2022 Tara Geere was advised the claimant could not work in the Cocoon full time. She did not support her, and she was questioning her, which exacerbated her trauma.

13.2.2 Failure to provide minutes of meetings on 03 November 2022 and 11 January 2023.

13.2.3 Failure to provide a grievance outcome.

13.3 By doing so, did it subject the claimant to detriment?

13.4 If so, was it because the claimant did a protected act? 14. Remedy for discrimination or victimisation

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

14.2 What financial losses has the discrimination caused the claimant?

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

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

[99]We listed a remedy hearing for Wednesday 18 September 2024 at the end of closing submissions but as the claimant has not succeeded with any of her claims, that date has now been vacated. The Hearing Day 1

The Hearing

[100]The hearing was scheduled to start at 10:00am on the first day with the first three hours being reserved for the Tribunal to read the papers. The papers were delivered late, and we had not finished our reading by 10:00am. We put back the attendance of the parties to 2:00pm. Because the hearing was scheduled to be by video, the Tribunal were all accessing the video stream from home. The respondent’s representative also attended by video. The claimant attended by video link from the Tribunal office. The Tribunal did not have the paper copy of the case file, but we had access to the digital version on the JCM system. Unfortunately, the digital version was not a complete copy of the file.

[101]We started the hearing with the parties at 2:05pm. We introduced ourselves.

[102]The claimant’s case was that she met the definition of disability because of the mental impairments of depression and insomnia. Those were the only two impairments mentioned as potential disabilities in the List of Issues. There had been some discussion of the claimant having the mental impairment of PostTraumatic Stress Disorder (PTSD) at the preliminary hearing before EJ Beyzade, which we shall return to. As the claimant’s case was that she had at least two mental impairments, we took her case at its highest and considered the Employment Tribunal’s Presidential Guidance: Vulnerable parties and witnesses in Employment Tribunal proceedings (22 April 2020) and the Equal Treatment Bench Book on vulnerable people, litigants in person, and mental illness when conducting this hearing.

[103]In the hearing we took frequent breaks and gave the claimant time when she either requested it or when we felt that it was appropriate.

[104]This hearing was conducted before the implementation of the Employment Tribunal Procedure Rules 2024 and any reference to the Rules are to the Employment Tribunals Rules of Procedure 2013.

[105]The claimant was unrepresented. We reminded her that the Tribunal operates on a set of Rules (which were the 2013 edition at the date of the hearing). Rule 2 of the 2013 Rules 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: 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;

(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.

[106]The first matter that the claimant raised was the fact that the hearing had been converted to a video hybrid. In paragraph 12.1 of her ET1, the claimant had stated that she has depression and anxiety which were exacerbated when doing interviews online. She asked for hearings to be in person. She asked for the rest of the hearing to be conducted in person, particularly the witness evidence, as a reasonable adjustment, because she said that video interviews increased her anxiety. Mr Lester had no objection in principle but needed to take instructions and ascertain whether the respondent’s witnesses could attend in person.

[107]The Tribunal could attend the rest of the scheduled hearing in person. We delayed our decision until we had heard more from Mr Lester about his witnesses. He could attend in person.

[108]We discussed the housekeeping aspects of the case with the parties, as it was apparent from the parts of the file that we had seen that there had been several emails from the claimant alleging breaches of case management orders by the respondent.

[109]Mr Lester confirmed that the respondents did not concede that the claimant was a disabled person or that they had actual knowledge of disability or should have known that the claimant was a disabled person. The question of the disabilities relied upon by the claimant was raised by her. We confirmed that EJ Beyzade had decided that the only disabilities relied upon were depression and insomnia. The claimant applied to add PTSD as a disability that she could rely upon in the disability discrimination claims.

[110]The claimant said she had sent a Schedule of Loss to the Tribunal and the respondent on 21 August 2023. Mr Lester said he had not seen a copy. On the second day, when the Tribunal attended in person, we were able to access the Tribunal’s paper file and could see that the claimant sent her Schedule of Loss to the Tribunal and to the respondents’ representatives, OneSource, at 15:44pm on 21 August 2023. We provided Mr Lester with a copy of the Schedule of Loss and covering email on the last day of the hearing.

[111]We then moved on to the bundle of documents. The respondents had produced a bundle of 426 pages. The claimant said she had disclosed her documents in May 2023. The claimant said she had sent an email on 14 July 2023 with a list of the documents she wanted to be added. The claimant said that the respondents’ representative had confirmed that she had all the claimant’s documents in November 2023. The respondent had ignored the emails and had included none of her documents when they sent her the 426-page bundle in November 2023 (there was some dispute as to the precise date, which was between 20 and 23 November 2023, but the exact date was not necessary to enable us to make our decision).

[112]Mr Lester said that he had not gone through all the additional 451 pages but that the respondents’ position was that there were clearly some pages that were not relevant. However, the respondents would not object to the claimant’s bundle of 877 pages (888 pages in total including the index) as it was not proportionate to expend time sorting out the relevant from the irrelevant. We therefore proceeded with the claimant’s version of the bundle. If we refer to any documents from the claimant’s bundle, we will usually put the relevant page numbers from the bundle in square brackets next to the reference. If we refer to any

[113]Mr Lester asked for further time to complete his reading of the additional documents, which we granted.

[114]Mr Lester mentioned that the first respondent may not have outlined its legitimate aim in its ET3. He confirmed that the respondents had not taken the opportunity to file an amended ET3 following the preliminary hearing before EJ Beyzade. We took the view that that Mr Lester could take instructions and include the legitimate aim contended for in his closing submissions, which he did.

[115]The claimant was upset at the way that she felt the respondents had conducted the litigation and that some sanction should be imposed. We advised the parties that a Tribunal would usually only strike a response or a claim out if a fair hearing was no longer possible. Breaches of case management orders can be recognised by granting the ‘innocent’ party time to consider papers that are delivered late, making a partial or total strike out of claim or response, ordering the ‘offending’ party to pay costs or preparation time to the innocent party or reflecting injury to feelings in any compensatory award. At no time during the hearing did any party suggest that a fair hearing was no longer possible.

[116]The claimant indicated that she had applied to add a claim of pregnancy discrimination. We were referred to the letter dated 31 October 2023 that was attached to an email dated 1 November 2023 from the claimant to the Tribunal and the respondent’s current solicitor which was not in the bundle. We were able to obtain a copy from the Tribunal file from our clerk. The letter was an application to amend the claimant’s claim.

[117]We indicated that we would take a break and then consider the applications that the claimant had made and deal with the remaining items on the list of things to do. We broke at 3:00pm and resumed at 3:15pm.

[118]On the resumption, Mr Lester reminded us that the claimant had submitted a second witness statement. He also advised us that the respondents’ position was that the claimant had not sent her documents to it as alleged. The respondent would have added them if they had received them.

[119]The claimant said she had first sent her documents on 23 May 2023 and had done so again on 20 March 2024. As all the documents produced by the claimant were to be admitted and Mr Lester had now seen them all, we found the point to have been resolved and found it disproportionate to spend any more time investigating the matter.

[120]The claimant raised the question of the large number of redactions that had been made to the documents in the respondents’ part of the bundle. Mr Lester accepted that the respondents had been too zealous in the names that had been redacted. We asked him to make enquiries of those instructing him to see if it were possible to obtain an unredacted bundle. He never returned to us with a positive answer. I was remiss in failing to press the point.

[121]We asked the parties if they were able to identify the redacted names of relevant officers of the first respondent. The claimant said some job titles had been left next to redacted names. We did not find that the failure made the hearing unfair or unjust to either party, as it was possible for the parties and witnesses to work out who was being referred to in redacted documents. We had no difficulty with using this method when the evidence started. Second Witness Statement

[122]We then discussed the claimant’s witness statements. She said she had sent her first witness statement on 24 March 2024 and had submitted her second witness statement in the week before this hearing. Mr Lester confirmed the respondents’ objection to the second witness statement. We found that the case management order of EJ Beyzade had been specific about the length of the claimant’s witness statement, which was permitted to be twice as long as the witness statements of the respondents’ main witnesses.

[123]We considered the claimant’s second statement. We found it did not add much to the first statement and was, in many ways, a rehash of the first statement. The claimant said that she had not been able to deal with everything she had wanted to in her first statement because of the problems with disclosure and bundles. We reject that argument. The claimant had the respondents’ bundle. She also had an additional 451 pages of her own. She could have referenced all the documents in her possession and created a single witness statement that came within the 40- page maximum within the prescribed time limit. If we allowed the claimant’s additional statement, then we would have had to give the respondents time to consider it and amend their own statements where appropriate. The application was refused as it was not in furtherance of the overriding objective, as it was not proportionate to allow the amendment; it added time and cost to the proceedings and would not add anything of substance to the claimant’s case. Application to amend – Pregnancy Discrimination

Law

[124]Mr Justice Underhill considered the appropriate conditions for allowing an amendment in Transport and General Workers Union v Safeway Stores Ltd

UKEAT/009/07

. In particular, he referred to the guidance of Mr Justice Mummery in Selkent Bus Company Ltd v Moore

[1996] IRLR 661

where he had set out some guidance. That guidance included the following points: (4) Whenever the discretion to grant an amendment is invoked, the Tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. (5) What are the relevant circumstances? It is impossible and undesirable to attempt to list them exhaustively, but the following are certainly relevant:(a) The nature of the amendment. Applications to amend are of many different kinds, ranging, on the one hand, from the correction of clerical and typing errors, the addition of factual details to existing allegations and the addition or substitution of other labels of facts already pleaded to, on the other hand, the making of entirely new factual allegations which change the basis of the existing claim. The Tribunal has to decide whether the amendment sought is one of a minor matter or is a substantial alteration pleading a new cause of action.

(b) The applicability of time limits. If a new complaint or cause of action is proposed to be added by way of amendment, it is essential for the Tribunal to consider whether the complaint is out of time and, if so, whether the time limit should be extended under the applicable statutory provisions, e.g., in the case of unfair dismissal, Section 67 of the 1978 Act.

(c) The timing and manner of the application. [An application should not be refused solely because there has been a delay in making it. There are no time limits laid down in the Rules for the making of amendments. The amendments may be made at any time – before, at, even after the hearing of the case. Delay in making the application is, however, a discretionary factor. It is relevant to consider why the application was not made earlier and why it is now being made; for example, the discovery of new facts or new information appearing from documents disclosed in discovery. Whenever taking any factors into account, paramount considerations are the relative injustice and hardship involved in refusing or granting an amendment. Questions of delay, as a result of adjournments and additional costs, particularly if they are unlikely to be recovered by the successful party, are relevant in reaching a decision].”.

[125]In the Safeway judgment, Mr Justice Underhill also referred to the judgment of the Court of Appeal in Ali v Office of National Statistics

[2005] IRLR 201

where Lord Justice Waller referred to Mr Justice Mummery’s guidance in Selkent, pointing out that, in some cases, the delay in bringing the amendment where the facts had been known for many months made it unjust to do so. He continued: “There will further be circumstances in which, although a new claim is technically being brought, it is so closely related to the claim already the subject of the originating application, that justice requires the amendment to be allowed, even though it is technically out of time.” As Mummery J emphasised in Selkent: '…the paramount considerations are the relative injustice and hardship involved in refusing or granting an amendment. Questions of delay, as a result of adjournments, and additional costs, particularly if they are unlikely to be recovered by the successful party, are relevant in reaching a decision'.

[126]In Evershed v New Star Asset Management

UKEAT/0249/09

, Underhill J stated that it was 'necessary to consider with some care the areas of factual inquiry raised by the proposed amendment and whether they were already raised in the previous pleading'. He carried out this exercise himself and concluded that the new evidence would be substantially the same as would be given in respect of the original claim, and, accordingly, allowed the amendment. The Court of Appeal approved this approach and agreed that the amendment did not raise 'any materially new factual allegations'. ‘[T]he thrust of the complaints in both is essentially the same'.

[127]In Chandhok v Tirkey

[2015] IRLR 195

, the Langstaff J referred to the importance of the ET1 claim form setting out the essential case for a claimant, as follows: “... The claim, as set out in the ET1, is not something just to set the ball rolling, as an initial document necessary to comply with time limits but which is otherwise free to be augmented by whatever the parties choose to add or subtract merely upon their say so. Instead, it serves not only a useful but a necessary function. It sets out the essential case. It is that to which a Respondent is required to respond. A Respondent is not required to answer a witness statement, nor a document, but the claims made – meaning, under the Rules of Procedure 2013, the claim as set out in the ET1.”

[128]In Abercrombie & Others v Aga Rangemaster Ltd

[2013] EWCA Civ 1148

Lord Justice Underhill pointed out that the Selkent factors are neither intended to be exhaustive nor should they be approached in a tick-box fashion. There is nothing in the Rules or the caselaw to say that an amendment to substitute a new cause of action is impermissible. Further, at paragraphs 48 and 49 of the Abercrombie judgment, Lord Justice Underhill went to say: “Consistently with that way of putting it, the approach of both the EAT and this Court in considering applications to amend which arguably raise new causes of action has been to focus not on questions of formal classification but on the extent to which the new pleading is likely to involve substantially different areas of enquiry than the old: the greater the difference between the factual and legal issues raised by the new claim and by the old, the less likely it is that it will be permitted. It is thus well recognised that in cases where the effect of a proposed amendment is simply to put a different legal label on facts which are already pleaded permission will normally be granted.... We were referred by way of example to my decision in Transport and General Workers Union v Safeway Stores Ltd (

UKEAT/0092/07

), in which the claimants were permitted to add a claim by a trade union for breach of the collective consultation obligations under section 189 of the Trade Union and Labour Relations (Consolidation) Act 1992 to what had been pleaded only as a claim for unfair dismissal by individual employees. (That case in fact probably went beyond "mere re-labelling" – as do others which are indeed more authoritative examples, such as British Printing Corporation (North) Ltd v Kelly (above), where this Court permitted an amendment to substitute a claim for unfair dismissal for a claim initially pleaded as a claim for redundancy payments.) It is hard to conceive a purer example of "mere re-labelling" than the present case. Not only the facts but the legal basis of the claim are identical as between the original pleading and the amendment: the only difference is, as I have already said, the use of the section 34 gateway rather than that under section 23. In my view this factor should have weighed very heavily in favour of permission to amend being granted. As the present case only too clearly illustrates, some areas of employment law can, however regrettably, involve real complication, both procedural and substantial; and even the most wary can on occasion stumble into a legal bear-trap. Where an amendment would enable a party to get out of the trap and enable the real issues between the parties to be determined, I would expect permission only to be refused for weighty reasons – most obviously that the amendment would for some particular reason cause unfair prejudice to the other party. There is no question of that in the present case.”

[129]In Vaughan v Modality Partnership

[2021] IRLR 97

at [24], HHJ Tayler reviewed the authorities on amendment. The following principles were set out by him: 129.1. the fact that an amendment would introduce a complaint which is out of time is a factor to be taken into account in the balancing exercise, but is not decisive [§15]; 129.2. the Selkent factors should not be treated as a checklist, but must be considered in the context of the fundamental consideration: the relative injustice and hardship in refusing or granting an amendment [§16]; 129.3. the Tribunal may need to adopt a more inquisitorial approach when dealing with a litigant in person [§19]; 129.4. that balancing exercise should be underpinned by consideration of the real, practical consequences of allowing or refusing an amendment [§21]; 129.5. It is important to consider the Selkent factors in the context of the balance of justice [§24] - a minor amendment may correct an error that could cause a claimant great prejudice if the amendment were refused because a vital component of a claim would be missing; - an amendment may result in the respondent suffering prejudice because they have to face a cause of action that would have been dismissed as out of time had it been brought as a new claim; - a late amendment may cause prejudice to the respondent because it is more difficult to respond to and results in unnecessary wasted costs. 129.6. where the prejudice of allowing an amendment is additional expense, consideration should generally be given to whether the prejudice can be ameliorated by an award of costs, provided that the other party will be able to meet it [§27]. 129.7. an amendment that would have been avoided had more care been taken when the claim or response was pleaded is an annoyance, unnecessarily taking up limited tribunal time and resulting in additional cost; but while maintenance of discipline in tribunal proceedings and avoiding unnecessary expense are relevant considerations, the key factor remains the balance of justice [§28].

Findings

[130]We followed the jurisprudence set out above when making our decision, Particularly, we considered all the circumstances, the relative prejudice to the parties and the balance of justice. We make the following findings: 130.1. The claimant’s application stated that her reference to “…detriment during my pregnancy was not a new issue but a reclassification of a concern in my original ET1. I believe that the treatment I received is discriminatory, precisely due to my race. I believe a colleague of a different ethnicity would have been more promptly for similar concerns.” 130.2. The claimant went on to describe the “relevant Act” as “during the protected period of my pregnancy from February 4 to March 11 2022, I experienced adverse treatment while working at the Cocoon.” The adverse treatment was the respondent’s failure to carry out a risk assessment into the clamant. We find that the claimant’s claim was one of unfavourable treatment under section 18 of the Equality Act 2010 and direct discrimination because of race under section 13 of the Equality Act 2010. 130.3. The claimant said that these claims were in her claim form [28]. The claimant’s pregnancy had been from February 2022 until late May 2022. We understand how upsetting the miscarriage must have been for the claimant. The claimant had discovered that she was pregnant on 31 March 2022. She submitted that the HSE guidance is that risk assessments should be carried out in respect of women of childbearing age. 130.4. The claims of pregnancy discrimination were not set out by the claimant in her ET1, other than by the references to pregnancy at pages 27-28 of the document appended to the ET1. That passage from the document was headed “Discrimination that led to the breach of my health and safety and it stemmed from Whistleblowing concern due to risk to public health”. We find that heading to be about an entirely different type of claim to that now proposed by the claimant, as was the substance of the paragraphs that followed it. 130.5. It is agreed evidence that the respondents did not know of the claimant’s pregnancy until after her unfortunate miscarriage. The claimant’s case is that the period in which she was subjected to discrimination was 4 February to 11 March 2022. At that time, the claimant did not know that she was pregnant either. 130.6. We find that following O’Neill v Buckinghamshire County Council

EAT/0020/09

, there is no general obligation to carry out a risk assessment on pregnant employees so that a failure to do so does not amount to discrimination per se. We find the claim to be weak. The strength of the claim is a relevant factor that we can take into account. 130.7. In order to proceed with any claim of race discrimination, the claimant has to amend her claim. 130.8. We find that the claimant’s application for amendment was made on 1 November 2023 in respect of matters that happened in February and March 2022. We find that EJ Beyzade gave the claimant clear guidance about the need to apply to amend. 130.9. We find that ACAS Early Conciliation started against the first respondent on 2 December 2022 and ended on 10 January 2023. The claimant presented her claim on 8 February 2023. Any act or omission that happened before 3 September 2022 was outside the primary limitation date. 130.10. We find the claimant’s allegation to be out of time – the time limit set out in section 123 of the Equality Act 2010. 130.11. On the Selkent points, we make the following findings: 130.11.1. We find that this is not a rebadging exercise. 130.11.2. We find that the new discrimination claims were not identified and communicated to the Tribunal and the respondents before the date of the preliminary hearing before EJ Beyzade on 24 July 2023, more than three months before the application was made. 130.11.3. The timing and manner of the application – The application was only effectively made when the application document was filed and served on 1 November 2023. The first respondent had made it clear in its ET3, that it required further information about the claim. EJ Beyzade had made it clear that the claimant had to notify the Tribunal and the respondents if the claims he had listed were incorrect. She did not do so. 130.11.4. For the reasons set out above and below, we find the balance of injustice and hardship supports the respondents’ position. We find it would not be just and equitable to extend time to allow the claims. 130.11.5. The claimant is not represented at this hearing but was represented by a trade union at the time of the events complained of. 130.11.6. The real practical consequences of granting the application would be to allow the claimant to bring a new claim to add to the many claims she has already made. 130.11.7. Following the guidance of HHJ Tayler, we find that the amendment sought is not a minor amendment. Granting the application would not ‘correct an error that could cause a claimant great prejudice if the amendment were refused because a vital component of a claim would be missing’. The amendment would open a new head of claim. 130.11.8. The amendment sought is late and would cause the respondent more cost and to expend more time. It would cost the taxpayer more expense and would mean that this hearing would have to be adjourned. A fair hearing would not be possible in the timescale set by previous case management orders. 130.11.9. The amendment would result in the respondent suffering prejudice because it would have to face a cause of action that would have been dismissed as out of time had it been brought as a new claim. 130.11.10. We find that the prejudice cannot be ameliorated by an award of costs, or other sanction. 130.11.11. We find that this amendment would have been avoided had more care been taken when the claim was pleaded or defined. That is an annoyance, unnecessarily taking up limited tribunal time and resulting in additional cost. However, the key point is the balance of justice and hardship, and we find that the injustice and the hardship is significantly greater on the respondent than the claimant.

[131]The application for amendment was refused. Application to amend – OH Report

[132]The respondents never responded to the claimant’s application to amend to include the claim about the 8 April 2022 OH report and the failure to prepare a risk assessment because of what the report disclosed about the claimant’s health. It was not mentioned by Mr Lester at all.

[133]We applied the same legal tests as for the pregnancy claim above but despite the claim not being mentioned in the claimant’s ET1, we find that the respondents’ lack of any engagement with the claimant’s application means that the balance of prejudice falls in favour of the claimant. The amendment is allowed. Application to amend to include PTSD as a disability

[134]The claimant accepted that she had never made this application in writing and that it had first been made on the first day of this hearing. The claimant had acknowledged that there was no mention of PTSD as a disability in the List of Issues set out by EJ Beyzade and that she had not questioned the omission within the time period stipulated by EJ Beyzade.

[135]The claimant said she had documentary evidence of diagnosis and took us to page 825, which was a Fit Note dated 31 January 2024 that stated that the reason for the claimant not being able to work was “PTSD”. She also took us to fragments of a letter dated 5 July 2023 from UCL Hospitals NHS Foundation Trust for an appointment with an Insomnia Clinic that under a heading “Medical History & Psychiatric History” stated “Depression” and “Posttraumatic stress disorder.”

[136]The claimant said she had been diagnosed with PTSD in July 2023. The last act complained of was on 22 November 2022.

[137]We followed the jurisprudence set out above when making our decision, Particularly, we considered all the circumstances and the balance of justice. We make the following findings: 137.1. The claimant’s application was verbal and was not supported by an impact statement or credible medical evidence. 137.2. The claimant went on to describe the “relevant Act” as “during the protected period of my pregnancy from February 4 to March 11 2022, I experienced adverse treatment while working at the Cocoon.” The adverse treatment was the respondent’s failure to carry out a risk assessment into the clamant. We find that the claimant’s claim was one of unfavourable treatment under section 18 of the Equality Act 2010 and direct discrimination because of race under section 13 of the Equality Act 2010. 137.3. In order to proceed with the claim of race discrimination/pregnancy discrimination, the claimant has to amend her claim. 137.4. We find that the claimant’s application for amendment was made on 9 April 2024 in respect of circumstances known to her in July 2023. 137.5. We find that ACAS Early Conciliation started against the first respondent on 02 December 2022 and ended on 10 January 2023. The claimant presented her claim on 8 February 2023. 137.6. We find that there is a time limit applicable for the amendment. Any claim that happened before 3 September 2022 is potentially out of time. 137.7. On the Selkent points, we make the following findings: 137.7.1. We find that this is not a rebadging exercise. 137.7.2. We find that the new disability was identified at the latest by the date of the preliminary hearing before EJ Beyzade on 24 July 2023, more than eight months before the application was made. The claimant was aware of the UCL Hospitals NHS Foundation Trust letter of 5 July 2023 when she attended the preliminary hearing before EJ Beyzade. 137.7.3. The timing and manner of the application – The application was only made at the final hearing. 137.7.4. For the reasons set out above and below, we find the balance of injustice and hardship supports the respondents’ position. We find it would not be just and equitable to allow the amendment. 137.7.5. The claimant is not represented but was represented by a trade union at the time of the events complained of. 137.7.6. The real practical consequences of granting the application would be to allow the claimant to add a third disability when she already relies on two disabilities. 137.8. Following the guidance of HHJ Tayler, we find that the amendment sought is not a minor amendment. Granting the application would not ‘correct an error that could cause a claimant great prejudice if the amendment were refused because a vital component of a claim would be missing’. 137.9. The amendment sought is late and would cause the respondent more cost and to expend more time. It would cost the taxpayer more expense and may mean that this hearing would have to be adjourned. 137.10. The amendment would result in the respondent suffering prejudice because it would have to face a head of disability that would have been dismissed as out of time had it been brought as part of a new claim. 137.11. We find that the prejudice cannot be ameliorated by an award of costs, or other sanction. 137.12. We find that this amendment would have been avoided had more care been taken when the claim was pleaded or defined. That is an annoyance, unnecessarily taking up limited tribunal time and resulting in additional cost. However, the key point is the balance of justice and hardship, and we find that the injustice and the hardship is greater on the respondent than the claimant.

[138]The application for amendment was refused.

[139]We discussed the next days’ proceedings. It was intended to call the claimant to give evidence. The Tribunal and Mr Lester would join the claimant in person at the East London Hearing Centre. We wanted the respondent’s witnesses to appear in person. We closed the hearing at 5:09pm. Day 2

[140]The hearing started at 10:10am on the second day after Mr Lester had asked for a little more time to consider new documents that concerned hotel authorisations.

[141]The claimant produced the complete version of the UCL Hospitals NHS Foundation Trust letter of 5 July 2023. We advised her that it made no difference to our decision the previous evening but added it to the bundle [878-848].

[142]Mr Lester had made no progress with the question of redacted documents.

[143]Before the claimant gave evidence, we advised her that we had read her witness statement again and that there were matters contained within it that made allegations of institutional racism at the first respondent. The purpose of the Tribunal is not to conduct an holistic investigation into the first respondent. It is to determine the Issues that had been agreed by the parties relating to the claimant’s circumstances.

[144]The claimant handed in a revised witness statement that had the relevant page numbers added to it. Mr Lester asked for 30 minutes to finish reading it, which we granted. We broke at 10:30 and resumed at 11:00am.

[145]Nancy Adande gave evidence on oath. Her evidence in chief was a witness statement of 38 pages. She was cross-examined carefully by Mr Lester. The claimant became upset on several occasions. We gave her as much time as she needed to compose herself before she continued. We took frequent breaks. We took lunch from 12:50pm to 1:50pm. We took a break for ten minutes from 2:55pm to 3:05pm. Cross-examination ended at 5:15pm. The Tribunal had no questions for the claimant. We explained to the claimant that if she had been represented, her representative would have had an opportunity to ask re-examination questions. We asked the claimant if there were any answers to questions that she had given that she wished to amplify or clarify. She did not wish to make any clarifying or amplifying points. We ended the hearing for the day at that point. Day 3

[146]The hearing started at 13:45pm as Mr Lester was not available until that time. He had been required to attend a hearing in the High Court that had significantly overrun. Mr Lester apologised to the claimant and the Tribunal for the delay. We were advised that all respondent witnesses had been asked to attend in person.

[147]Ms Adande said she had points that she wished to amplify and clarify about the answers she had given to questions that were asked of her the previous day. We indicated that she had already been given that opportunity and that her evidence had closed. She could make points in her closing submissions.

[148]An amended witness statement had been produced by the respondents for the first witness, Kemi Akosile. It had some amendments and consisted of 28 paragraphs rather than 33 paragraphs in her original statement. Paragraphs 12 to 17 had been removed from the original statement. These paragraphs dealt with the claimant’s stated wish to do the course that would lead to her becoming a Social Worker. Amendments had been made to paragraphs 18, 23, and 24, which we found to be minor.

[149]Paragraphs 32 and 33 had been expanded to deal with the risk profile of the young adult that the claimant had asked for expenses to attend. We felt that this evidence was helpful to us in determining the Issues before us. The amendments were minor.

[150]Ms Adande became very upset because we allowed the amendments to the witness statement. She said that when she had asked to change her witness statement, the application had been refused. We indicated that if the claimant wished to ask Ms Akosile any questions about either of Ms Akosile’s statements, then she could. She could also make representations at the end of the case about the impact on the witness’ credibility that the change in witness statements may have had. If the claimant was successful, we would take her upset into account when assessing any possible injury to feelings award. We were interested in hearing the best evidence of both sides. We had determined that the claimant’s second statement did not add much to her first. We adjourned at 1:55pm to give Ms Adande time to compose herself. We reconvened at 3:01pm.

[151]On the resumption, Kemi Akosile gave evidence on oath for the respondents. She was the Team Manager of the Transition & Participation Starting Well for the first respondent. She managed a team of six people, including the claimant. Ms Akosile self-identifies as Black British. She was one of the panel of three people who interviewed the claimant for the five Pathway Co-ordinator roles in 2020. The witness relied on her witness statement that she signed at the table that consisted of 28 paragraphs. There were no supplementary questions from Mr Lester.

[152]The claimant cross-examined Ms Akosile until 4:15pm, when we took a break. We restarted at 4:30pm. Cross-examination continued until 5:00pm. There were no questions from the Tribunal. The witness was released with the agreement of the claimant. There were no Tribunal questions, but Mr Lester asked five reexamination questions until 5:15pm, when we closed the hearing for the day. Day 4

[153]We had hoped to start the hearing at 9:30am to make up some of the time we had lost on the previous days. We started the hearing at 9:30am. The third respondent, Tara Geere, was on a video link. Mr Lester explained that he had not been able to speak to Ms Geere the previous day, but she was on the video link and was available to give evidence.

[154]We asked the witness why she was not in attendance in person today. Ms Geere said she had cleared her diary for the second day of the hearing. She was booked to attend national training on the fifth day (the following Tuesday – 16 April). We were mindful of the adjustment that had been granted to the claimant to hear the case in person and decided that we should hear the evidence in person and the only opportunity to do that would be at 10:00am on the fifth scheduled day – 16 April.

[155]Steve Caton, another of the respondent’s witnesses, had also attended by video. The claimant indicated that she would not be able to put her questions to Mr Caton by video. We were mindful of the delays in hearing the case and the increasing possibility that we would go part heard. Ms Adande said she did not want to disadvantage her case by cross-examining over video. She had written notes on which she intended to base her cross-examination questions. Ms Adande thought she had 8 questions for the witness. I suggested that I look at the claimant’s notes and ask the questions on her behalf, as this was a flexible approach that met the overriding objective. The claimant agreed to this, and we gave her time to write out her questions. We adjourned the hearing at 9:54am and reconvened at 10:37am.

[156]Steven Caton gave evidence on affirmation and relied on his witness statement date 27 November 2023 that consisted of 12 paragraphs. Mr Caton is employed by the first respondent as a Senior Investigator and was commissioned by the third respondent, Tara Geere, to investigate the claimant’s grievance that was submitted on 15 November 2022. There were no supplementary questions. I explained to the witness that I would be reading out Ms Adande’s questions. They were her questions to him, not mine. The cross-examination concluded at 10:52am. There were no Tribunal questions or re-examination. The witness was released with the agreement of the claimant.

[157]The next witness for the respondents was Tendai Dooley, the second respondent. She was not available to give evidence until 1:00pm, so we took the opportunity to discuss closing submissions with the parties. We explained to the claimant what closing submissions were and the various ways that she could make them. We emphasised that this was a case where time limits were in play, as was the concept of ‘continuing acts’. We advised the claimant that her closing submissions should cover these points. We asked the parties to exchange closing submissions by 10:00am on the fifth day. Any additions to the submissions following the evidence of Ms Geere could be added in oral submissions. We adjourned the hearing at 11:00am.

[158]We restarted the hearing at 1:00pm, when the third respondent, Tendai Dooley, appeared in person, gave evidence on oath and relied on her witness statement dated that was signed at the witness table and which consisted of 23 paragraphs. Ms Dooley was the Head of Service, Children and Young People Service from May 2017to June 2023. She was no longer employed by the first respondent. She supervised the Service Manager, who supervised the claimant’s Team Manager, Kemi Akosile. Mr Lester asked one supplementary question.

[159]The claimant cross-examined the witness from 1:06pm to 2:35pm, when we took a break. We restarted the hearing at 2:55pm and continued until 3:50pm. Ms Forrest asked one question. Mr Lester asked 2 re-examination questions. The witness was released with the agreement of the claimant at 3:55pm and we closed the hearing for the day, adjourning to 10:00am on Tuesday 16 April 2024.

[160]During Ms Dooley’s evidence, she referred to some emails that were not in the bundle. We asked Mr Lester to make enquiries to determine if the emails could be located and produced. Day 5

[161]The claimant’s written submissions were received by the Tribunal at 10:00am on 16 April 2024.

[162]The hearing started at 10:10am. We apologised to the parties and representatives for the late start. Ms Adande notified us that closing submissions had not been exchanged. She pointed out that this was a commitment and it had not been complied with. She suggested that the respondent’s response should be struck out. We indicated that a strike out would not be appropriate as a fair hearing was still possible.

[163]Mr Lester said he would submit his submissions later. He also advised the Tribunal that the first respondent’s IT department had been unable to locate the emails that Ms Dooley had referred to.

[164]We had a short discussion about the legitimate aim of the respondent as such was relevant to the claims of discrimination arising from disability and reasonable adjustments. We explained how the principle of the legitimate aim worked in practice.

[165]Tara Geere had attended in person and gave evidence on affirmation from 10:13am. Ms Geere is the Assistant Director of Children Services for the first respondent. She relied on a witness statement that was signed and dated at the witness table, and which consisted of 6 paragraphs. The claimant cross-examined the witness until 11.22am, when we took a break. After the resumption at 11:45am, the cross-examination continued until 12:25pm. Ms Forrest asked two questions. There was no re-examination. The witness was released at 12:31pm with the agreement of the claimant.

[166]Mr Lester said he would submit his closing submissions at 12:45pm. We advised the parties that we would begin hearing closing submissions at 2:00pm and that the respondent would go first. The respondent’s submissions were received by the Tribunal at 1:08pm on 16 April 2024.

[167]We read both sets of closing submissions before the hearing recommenced.

[168]We restarted the hearing at 2:02pm and heard from Mr Lester who spoke to his written submissions until 2:50pm. We then heard from Ms Adande, who spoke to her written submissions until 3:30pm. We considered our decision and determined the outcome of the claims. A note was taken of our deliberations and determinations of the claims. For the avoidance of doubt, we confirm that our full decision was made and unanimously agreed on the fifth day of the hearing.

[169]We indicated that we would reserve our decision on liability and took the opportunity to list a remedy hearing for 7 September 2024, which had to be vacated as the reserved Judgment and Reasons had not been promulgated.

[170]As the claimant has not succeeded in any of her claims, a remedy hearing will not be needed. Apology from EJ Shore

[171]It is entirely my responsibility that this Judgment and Reasons has taken so long to prepare. I can only repeat the apologies given to the parties, representatives, and my colleagues in emails sent over the time since the hearing. The simple fact is that I have had a period of over two years in which I have had to deal with the serious illness and/or death of five members of my close family, as well as dealing with issues with my own ill health, whilst fulfilling my responsibilities as a parent, husband, and as an employment judge. I very conscious of the effect that the delay in promulgating this decision can have on the parties and very much regret my failure to complete the decision. I appreciate that I have given dates for completion that have not been kept, but the dates were given with every intention of fulfilling them. Unfortunately, events intervened. Following the last update given to the parties I have had a period of absence due to ill health, which has delayed things again. Findings of Fact Preliminary Comments

Findings of Fact

[172]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, and the claim as set out in the List of Issues.

[173]We are very conscious of the fact that these Reasons refer to the claimant’s loss of her baby in May 2022. We offer our sincere condolences to the claimant on her bereavement, but we must address facts that relate to her pregnancy and bereavement because they are relevant to the Issues in the case.

[174]We were mindful of the possibility of the respondents and witnesses for the respondents had exhibited unconscious bias in relation to the claimant. We were also mindful of the possibility that we may be unconsciously biased and took guidance from the Equal Treatment Bench Book on both possibilities.

[175]We find that it is possible for a person of the same race (using the definition of ‘race’ in section 9 of the Equality Act 2010) as a claimant to discriminate against a claimant on the grounds of race. Brief Chronology and Undisputed Facts

[176]We should record as a preliminary finding that many relevant facts were not disputed, not challenged, or were agreed by the parties. We therefore make the following undisputed findings of fact: 176.1. The claimant graduated from the Open University in July 2018 with a FirstClass degree in Integrative Counselling. The claimant self-identifies as a Black woman of Nigerian nationality. The claimant asserts that she meets the definition of disability in section 6 of the EqA because of insomnia and depression at the times with which her claims are concerned (4 February 2022 to 22 November 2022). 176.2. The claimant was initially employed by the first respondent, a local authority, as a Young Person Advisor (which is a Grade 5 role), from 14 August 2018 to the date of the final hearing. We do not know if her employment continued after the hearing. ACAS Early Conciliation started against the first respondent on 2 December 2022 and ended on 10 January 2023. As a matter of law, any claim based on an incident that occurred before 3 September 2022 could be outside the time limits stipulated by section 123 of the Equality Act 2010 in respect of the second and third respondents. 176.3. ACAS Early Conciliation started and ended against the second respondent, Tendai Dooley, the Head of Service, Children and Young People’s Service (“CYPS”) for the first respondent, on 6 February 2023. 176.4. ACAS Early Conciliation started and ended against the third respondent, Tara Geere, the Assistant Director, CYPS for the first respondent, on 6 February 2023. The Claim Form (ET1) [8-19] and a separate document titled “ET1 FORM SECTIN 8.2” [20-34] in respect of all three respondents was presented on 08 February 2023. 176.5. As a matter of law, any claim based on an incident that occurred before 7 November 2022 could be outside the time limits stipulated by section 123 of the Equality Act 2010 in respect of the second and third respondents. 176.6. As a local authority, the first respondent has statutory responsibility for children and young people who were placed in its care. The first respondent has a Children and Young People Service (“CYPS”). Part of the CYPS was the Leaving Care Service (“LCS”). At times relevant to this claim, the second respondent, Tendai Dooley, was Head of Service at the first respondent’s CYPS. The LCS was part of Ms Dooley’s area of responsibility. It consisted of two teams. 176.7. Ms Dooley supervised the LCS Service Manager, Teresa Milanzi-Papaya. Ms Milanzi-Papaya supervised Kemi Akosile, who was the Manager of one of the LCS teams. Ms Akosile supervised the claimant. 176.8. The first respondent is based at Main Road, Romford, but operates out of other buildings. One of these buildings is The Cocoon, High Street, Romford. Ms Akosile gave unchallenged evidence that The Cocoon is a drop-in space for young adults who have experienced the care system. The Cocoon was described by Ms Akosile as “…like a one stop shop where young people can come and meet housing, benefit experts, pathway coordinators and counsellors.” The centre also provides various recreational activities. 176.9. The Cocoon is open from 9:00am to 5:00pm on Mondays to Fridays and from 10:00am to 4:00pm on Saturdays. It was staffed by two or three staff members, who would be expected to cover two shifts per week and one Saturday per month if a full complement of staff were available. If there were staffing shortages, staff may be expected to cover up to four shifts per week. It was agreed evidence that the claimant worked both at the first respondent’s main offices and at The Cocoon. 176.10. From early in her career with the first respondent, the claimant expressed a wish to move into social work. To do this, she would need a formal qualification, such as a master’s degree in social work. The respondents’ witnesses did not dispute the claimant’s evidence that she wished to become a social worker. The course that would be required for the claimant to be a qualified social worker (a masters’ in Social Work) could be funded by the first respondent or self-funded by the claimant. It was agreed that the claimant could not afford to self-fund her qualification. 176.11. It was agreed that in 2018 or 2019, the claimant, Ms Akosile, Ms Dooley and another member of staff discussed the possibility of the claimant taking a course that would lead to a social work qualification. The outcome was that the claimant did not pursue the option at that time. The reasons why the claimant did not pursue the course are disputed but we do not need to make findings as the facts are not relevant to the claims made. The respondents’ case is that the course had to be self-funded, and the claimant did not have the funds. The claimant’s case is that she was told to wait her turn. 176.12. On 13 January 2020, the claimant was interviewed for one of five Pathway Coordinator roles with the first respondent, which was a Grade 7 role and carried a significantly higher salary than the claimant’s Grade 5 role as a Young Person Advisor. It is agreed that one of the roles was given to Sheralyn Hedges (a White British woman), who the claimant alleges was less qualified than she was. The claimant claims that Ms Hedges was known to Ms Dooley (who was on the interview panel), as Ms Hedges had been Head of Year at the school attended by Ms Dooley’s child. 176.13. Ms Dooley’s unchallenged evidence was that there were fifteen applicants shortlisted and interviewed for the five roles. Her evidence was that the five candidates appointed self-identified as follows (these are the first respondent’s categories): 1 Black or Black British, 2 African, 1 White British/Irish, 1 Asian or Asian British, and 1 Mixed Race White and Black Caribbean. There was some discussion about the ethnicity of the successful candidates. 176.14. The claimant was notified that she had been unsuccessful in the process towards the end of February 2020. We do not have to make findings in respect of disputed facts in this matter, as it is background and not part of the claimant’s claims as set out in the List of Issues. 176.15. The claimant resigned on 23 August 2021 by email [489] with an attached letter, which was not produced. On 10 September 2021, the second respondent emailed the claimant [490] to say that the claimant was a very good practitioner that she would love to see develop with the first respondent. Ms Dooley indicated that she would speak with a colleague the following week to see how “…we infuse the senior YPA position.” She also indicated that they would speak the following week about systemic training, a two-year course that the claimant had started. 176.16. The claimant responded the same day [490-491] to indicate that she would be “…happy to stay as a senior YPA and to have the opportunity to remain in the systemic year 2 which is starting on the 29thSeptemeber.” There is a dispute of evidence between the parties about what was promised to the claimant in the discussions around her resignation. Again, we do not have to make any determination of the facts in dispute because they are not part of the claimant’s claim. It is background. 176.17. The claimant’s evidence is that after her retraction of her resignation in 2021, she was assured of a promotion to Grade 6. She began postgraduate studies towards a qualification that would have put her in a position to get a Grade 7 role. 176.18. The claimant’s evidence (§44 of her witness statement) was that in January 2022, the third respondent announced in a team meeting that current Grade 5 employees, such as herself, were not required to apply for a forthcoming Grade 7 opportunity as a Pathway Co-ordinator. Further, the claimant claimed, the third respondent “…outlined that we [Grade 5 YPAs] would be seamlessly transitioned to Pathway Co-ordinator with an arranged top-up honorarium.” In evidence, the claimant said that she was told that there would be a restructure in September 2022 that would enable her to take up the role of Pathway Co-ordinator at Grade 7. The restructure and appointment did not happen. 176.19. The claimant alleges that the third respondent recommended the Grade 5 YPAs not apply for the role, so she did not apply. This matter is dealt with in the Disputed Facts section below. 176.20. On 4 February 2022, the claimant alleges that she “…encountered deteriorating building conditions, including a leaking roof that emitted a fluid smelling distinctly of urine. In addition, there was a pervasive odour of dead rats, mould on the walls, mites, and flies. These conditions, aside from the leakage, have been a persistent issue since July 2021.” She emailed Ms Akosile on the same date [no copy provided in the bundle]. 176.21. Ms Akosile’s unchallenged evidence ([23] of her witness statement) was that she had received an email from a colleague, Daniale Holmes, on 4 February 2022 that he had seen mites in the office at The Cocoon. Sheralyn Hedges then sent Ms Akosile an email that advised her that the smell was really bad. Ms Akosile forwarded the emails to senior management. The claimant then advised her that she was going to shut The Cocoon. Ms Akosile agreed. 176.22. The second respondent sent an email on 4 February 2022, notifying colleagues that she had “…just received notification that staff have shut the Cocoon for valid reasons, which are set out below.” The matters referred to were; a strong smell of urine from a toilet; a leak from an upstairs office; and presence of mites. The email records that “…one member of staff advised that the smell of urine was so strong it gave her “brain freeze.” This must have been the claimant, as the brain freeze effect was the reaction she said she had. 176.23. The Cocoon was closed for around a week when it reopened and the claimant returned to work there until she signed off as medically unfit to work from 10 March 2022. 176.24. On 16 February 2022, the claimant discovered an email from the first respondent’s Hiring Manager to a candidate for the Pathway Co-ordinator role, Sean Kelly (a White British man), advising him of the interview questions before his interview for the role – this allegation was not disputed by the respondents. He was appointed to the role. The facts of the process are disputed and will be dealt with below. 176.25. The claimant emailed the third respondent on 24 February 2022 [494-495], bringing the email to her attention. The claimant claims that there was no follow up to her complaint. She alleges that the first respondent failed to deal with her grievance fairly, including not resolving her grievance within a reasonable time, and not treating her grievance seriously. The respondents dispute this allegation. It is dealt with below. 176.26. It was agreed that the claimant was absent from work due to ill health from 10 March 2022. Her medical records [342] show that the claimant was initially signed off on 10 March 2022 for a period of 8 days with a diagnosis of Work Related Stress. In the preliminary hearing before EJ Beyzade on 24 July 2023, the claimant is recorded as saying that the first time she reported her anxiety and insomnia to her GP was in March 2022 ([60] [para22]). The claimant also told EJ Beyzade that she accepted that depression and insomnia had not lasted for twelve months at the date of the PH (23 July 2023) ([60] [§23]). The respondents dispute that the claimant met the definition of disability at the times with which these claims are concerned and deny that they had actual or constructive knowledge of 176.27. The claimant saw an Occupational Health Advisor (OHA), Debbie Stewart, on 8 April 2022. A report was produced dated 11 April 2022 [356-357]. 176.28. The claimant returned to work on 14 April 2022 [344]. 176.29. It was confirmed that the claimant was pregnant on 31 March 2022 [343- 344]. The claimant miscarried her baby on 22 May 2022 [346] and had medical complications that were resolved by a surgical intervention on 1 July 2022 [350]. 176.30. On 26 July 2022, the claimant emailed Ms Akosile to request authorisation to incur accommodation expenses for a visit to see two young adults on 1 August 2022. The claimant says that Ms Akosile unnecessarily put the claimant through a stressful process relating to the proposed trip. The circumstances are disputed and are dealt with in the Disputed Facts section below. 176.31. On 3 October 2022, the claimant alleges that Kate Dempsey told her that the second respondent had asked her to tell the claimant that the respondent could not fund a social work masters’ course in June 2022. This is disputed and is dealt with below. 176.32. On 22 November 2022, it is agreed that Ms Akosile asked the claimant her when she could work in The Cocoon. The claimant had not worked there since 11 March 2022. The claimant alleges the second respondent required that the claimant worked at The Cocoon, which was requirement communicated by an email on 22 November 2022. The claimant also complains about the third respondent’s actions on the same day by telling the claimant that she was being hysterical. Both acts were alleged to be acts of acts of disability discrimination. The circumstances of what happened are not agreed and will be dealt with in the Disputed Facts section below. 176.33. The claimant also alleges that the requirement for her to work at the Cocoon by the second and third respondents was an act of discrimination arising from disability. This claim is disputed by the respondents. Her claims that the respondents should have made reasonable adjustments by not placing her on a rota to work at the Cocoon on 3 November 2022 and failing to provide a risk assessment on or around 8 April 2022 is also disputed and dealt with below. 176.34. The events of 22 November 2022 are the last matters that are the subject of the claimant’s claim. Disputed Facts Preliminary Notes

[177]We have not made findings of fact on some of what is alleged by the claimant in her lengthy witness statement because we found that some of the matters referred therein were not relevant to the Issues that we had to determine and, therefore, it was not proportionate to consider them.

[178]The Tribunal must deal with matters in a proportionate way – we must allocate time and resources to a question that is proportionate to its importance or value. This must be done through the lens of the List of Issues, which sets out the claims, and in a way that ensures that we only address matters that are relevant to the issues we must determine.

[179]Given the delay in producing this reserved decision, we will determine all the Issues in the List of Issues, even though some decisions on issues such as time limits, disability, etc. mean that the factual allegations cannot succeed in any event. We will make findings of fact in a slightly different order to the order of the issues set out in the List of Issues. It may be that some findings made in the earlier issues are relevant to later issues. We will deal with the time points last.

[180]When assessing the credibility of witnesses, we applied the guidance in Gestmin SGPS S.A. v Credit Suisse

[2013] EWCA 3560

(Comm) (§§15-22).

[181]We repeat all the agreed facts set out above. Whistleblowing Claims (§3 List of Issues) Protected Disclosures (§3.1 List of Issues)

[182]The claimant contended that the following were protected disclosures (§3.1 List of Issues): 182.1. On 4 February 2022 the claimant complained by email that as a result of working at the Cocoon she was suffering from health issues (the First Disclosure) (§3.1.1.1); 182.2. On 24 February 2022 by email the claimant complained about the first respondent not following fair recruitment procedures in respect of Sean Kelly (the Second Disclosure) (§3.1.1.2); 182.3. On 08 April 2022 the claimant also complained to the first respondent’s Occupational Health consultant that as a result of working at the Cocoon she was suffering from health issues (the Third Disclosure) (§3.1.1.3); 182.4. In her grievance dated 19 October 2022 the claimant complained about the working conditions and health and safety within the Cocoon building (the Fourth Disclosure) (§3.1.1.4); and 182.5. The claimant repeated her concerns to the third respondent during conversations with her on 17 October 2022 and she sent an email summarising the conversation on 19 October 2022 (including evidence of other staff complaints). She also repeated her concerns during a meeting with the third respondent and the HR manager, Lynette Hart on 03 November 2022 (the Fifth Disclosure) (§3.1.1.5). First Disclosure (§3.1.1.1 List of Issues)

[183]The claimant’s email to Ms Akosile dated 4 February 2022 and timed at 11:07am had the Subject: “Impact of Cocoon condition on my health.” The email stated: “I am at the cocoon and I am struggling to cope due to the current repair condition: strong smell coming out of the toilet. The plumber who came in this morning reported the leak to be a drain coming from one of the flat above toilet. I have personal health reaction/trigger to strong urine smell which make me feel sick have brain freeze when inhaled. I am currently unable to use the toilet, eat or drink and I am sitting at the front door entrance area due to inability to breath. I had spoken to Dean about this in the past, but at the time, it was not as bad as this. Please, can I continue my work from the Town Hall as I am feeling very sick and unable to cope.”

[184]We find that the claimant’s complaint was about her personal reaction to the environment at the Cocoon that was unique to her – a “personal health reaction to strong urine smell which make me feel sick have brain freeze when inhaled.” We find that the claimant disclosed information. We find that the claimant did not show that she had a genuine belief that the disclosure was made in the public interest. Second Disclosure (§3.1.1.2 List of Issues)

[185]The claimant’s second disclosure was her email of 24 February 2022 [494-495] to the third respondent, copied to the second respondent and Wendy Whittington, the claimant’s trade union representative. The claimant wrote: “I would like to bring to your attention that last week on the 16th of February 2022, I was in the town hall with other colleagues. Nuala Harrington, Team Manager asked me to print out something for her and whilst I ﬁnished the printing, I helped her to arrange the paperwork. As I was arranging it for her (the front printing) what I came across was a shocking revelation that has aﬀected my wellbeing for various reasons. I found an email she sent to YPA Sean Kelly on the 10th of February 2022 at 15:45 with attachments stating “interview docs” and in the email she had sent him the interview questions and some pointers of how to respond to the answers. The situation aﬀected me for the following reasons: · I am shocked that such malpractice actually happens within the service and it made me feel if I and my other colleagues had applied, we would not have been successful because Sean has been given all the information for his interview and it shows that the hiring manager is extremely bias. I deﬁnitely know that if I had applied and did not get the job it would have aﬀected my conﬁdence and emotional wellbeing, knowing fully well that I worked hard and deserve to get fair interviewing process. It is apparent that he had been earmarked for the role. This means no other applicant stood a chance to get the position. · It also made me query previous recruitment process as well as I asked myself could this have been a context? · Also, I am curious about Nuala and Sean motives and why they will go through such high malpractice to secure a job that we had already been promised by yourself that we do not need to apply because we will automatically transition into post. I am so sorry that this situation has impacted on my trust of the system and I will like to conﬁrm what you promised during the team meeting that current YPAs will not need to apply for their post and they will automatically transition into the Pathway Co-ordinator post. I am mindful that this may create a sense of bullying and scapegoating as I am unsure of how the parties involved will approach/respond to this, hence I had to seek advice from my union given my additional layer of Social GGRRAACCESS and how this may position reactions that may emerge from this. I have copied my union representative Wendy Whittington into this email. Please see the attached evidence of the Malpractice concern. I want to say, I have always loved to work at Havering and despite all obstacles and the complex uniqueness, I have always given my best and I will continue to do so. Thanks again for your great interest in promoting equality within the service.”

[186]The attached evidence referred to in the claimant’s email above was a photograph of part of the email from Nuala Harrington the Sean Kelly dated 10 February 2022, in which she gave him the questions for his forthcoming interview for the Pathway Co-ordinator role. The claimant did not apply for this role.

[187]Whilst we find the conduct of Ms Harrington to be egregious and unprofessional at the very least, that is not what we are required to determine here. We find that the claimant’s email did not disclose information that tended to show that one of the six matters in section 43B(1)(a-f) had been done, was being done, or was likely to be done. The claimant’s witness statement [§47] did not say which of the six subjects for disclosure had been engaged but we note that the claimant, in her closing submissions, contended that it was a failure to comply with a legal obligation, which the claimant said was the first respondent’s Recruitment Policy [727-742]. The claimant’s witness statement did not say what the legal obligation was. We do not find that the first respondent’s Recruitment Policy was a legal obligation, as no evidence was led to suggest that it was. We are unable to make a supposition without evidence.

[188]We also find the claimant’s statement at the end of her email that she had always loved to work at the first respondent to be entirely contradictory to her claims that she had been subjected to discrimination at the first respondent and by the second and third respondents (the former was copied into the email and the latter was the recipient of it) to undermine the credibility of her claims. Third Disclosure (§3.1.1.3 List of Issues)

[189]The claimant’s third disclosure, according to the List of Issues, was a complaint on 8 April 2022 to the first respondent’s Occupational Health consultant that because of working at the Cocoon site, the claimant was suffering from health issues.

[190]The claimant’s witness statement was silent on the alleged disclosure. In the bundle was an OH report dated 8 April 2022 by Debbie Stewart, an Occupational Health Advisor. In a paragraph headed “Current Issues”, Ms Stewart recorded the following: “As you are aware, Nancy has been off work since 11 March 2022 which stress related symptoms which she perceives to be work related. She tells me that staffing levels have been low, her workload has increased and she is feeling overwhelmed at times, then more recently at work in the Cocoon area there was a burst pipe in the toilets and dead rats were found. This triggered events in Nancy’s life and had a significant impact upon her anxiety levels, so much so that she had to leave work. She informs me that she is under the care of her General Practitioner (GP), she is taking over the counter sedation to help her to sleep as she says that it can be several days until she is able to sleep and she is paying for private counselling – which she feels is beneficial. She describes feeling very anxious when she thinks about work and seeing the rats or smelling the very strong, pungent odour.”

[191]We have underlined what must be the alleged disclosure. We find that what the claimant is recorded to have said to the OHA was not made in the public interest. It was made in the claimant’s interest; there was no mention of anyone one else being affected by the circumstances she outlined. We find that the claimant did not show that she had a genuine belief that the disclosure was made in the public interest. Fourth Disclosure (§3.1.1.4 List of Issues)

[192]The claimant’s fourth disclosure was her grievance of 19 October 2022 [645-651] in which the List of Issues records that the claimant “…complained about the working conditions and health and safety within the Cocoon building.” This disclosure arose from a meeting between the claimant and the second and third respondents by Skype on 17 October 2022. The claimant’s witness statement [§91-93] set out what she discussed at the meeting: “91. On October 17, 2022, I had a meeting was via Skype with Respondents 2 and 3, Tendai Dooley and Tara Geere, addressing the concerns I had previously raised through email regarding favouritism rumours, bias, and discrimination within our team. The purpose of this meeting was to directly address the injustices I have experienced, particularly focusing on the bias and discrimination perpetuated by Ms. Dooley towards black employees, including myself, which dates back to January 2020. These practices have profoundly affected my professional and personal well-being.92. During the course of the meeting, Ms. Geere intervened to request Ms. Dooley’s departure, enabling me to articulate my experiences more freely. This intervention facilitated a conducive environment for me to formalize my grievances. Consequently, on October 19, 2022, bolstered by Ms. Geere's support, I compiled and submitted a formal written complaint. Alongside the complaint, I included substantial evidence to support each claim, which comprised documentation of my antidepressant medication and the surgical procedure notes for my retained product. The inclusion of medical evidence was a deliberate attempt to shed light on the severe emotional and psychological distress I have endured as a result of the discrimination, coupled with the apprehension of being disbelieved or marginalised.

93. The necessity to present this evidence was predicated on the need to emphasize the serious implications of my mental health condition, which has been significantly impacted by the ongoing discriminatory practices. The emotional burden of engaging in this process was overwhelming, culminating in profound distress that further underscores the extensive mental and emotional toll the discrimination has exacted on me.”

[193]The claimant’s closing submissions stated that her grievance filed on 19 October 2022 “…formally documented…” the “…detailed discussion…” she had on 17 October. The grievance was set out in an email timed at 12:00am on 19 October [645-651].

[194]It is not necessary or proportionate to produce the whole of the email in these Reasons. We find that it cannot be disputed that the claimant raised issues about her treatment by the first respondent that was a thing for the purpose or in connection with the Equality Act 2010 and that the claimant made express allegations that the first respondent and/or the second respondent had contravened the Equality Act 2010. We therefore find that the claimant’s grievance was a protected act as defined in the Equality Act. Most of the claimant’s grievance was concerned with allegations of racism. We find that to be an allegation of a breach of a legal obligation not to discriminate.

[195]The claimant stated she had been advised by her Trade Union that she met the eligibility for grievance on the following grounds: 195.1. Unfair Treatment; 195.2. Bullying/abuse of power; and 195.3. Discrimination at work.

[196]The claimant made no mention of any health and safety breaches that could be a protected disclosure as part of her grievance. We find that the relevance of the claimant’s allegation that she smelt dead rats in the Cocoon building was in relation to the second respondent’s reaction to raising concerns about Ms Dooley’s reaction to the claimant closing the Cocoon on 4 February 2022, as part of the allegations of racism towards her.

[197]We find that the claimant complained about her working conditions in the Cocoon in her email of 19 October 2022. However, we find that there was no public interest in the claimant’s grievance concerning health and safety, as the claimant’s concerns were about herself. At the time, she did not know she was present, so the disclosure could not have contemplated her unborn child. The Cocoon was used to meet service users. The claimant made no mention of any complaints or effect on any of the other people that used the building. Fifth Disclosure (§3.1.1.5 List of Issues)

[198]The claimant’s fifth disclosure was when she says repeated her concerns during a meeting with the third respondent and the HR Manager, Lynette Hart on 3 November 2022, the details of which were contained in paragraphs 99 to 100 of the claimant’s witness statement. At this meeting, the claimant confirmed that she wished her grievance of 19 October 2022 to be dealt with formally. No minutes of the meeting were produced. The failure to produce minutes of the meeting is part of the claimant’s claim.

[199]The claimant’s witness evidence about what was disclosed at the meeting [§99] was: “On November 3, 2022, a pivotal meeting was held with Respondent 3 Tara Geere and HR Manager Ms. Lynette Hart to deliberate on my grievances concerning discrimination and the distress associated with my past traumas and miscarriage at the Cocoon. During this meeting, I conveyed the significant emotional distress that hinders my ability to complete full shifts at the Cocoon, while still being able to meet clients and attend events there.”

[200]We find that the claimant did not raise any health and concerns at the meeting. We make that finding because the claimant’s witness evidence was silent on the issue and there were no documents that supported the claimant’s assertion.

[201]We have therefore found that the claimant made no disclosures of information, which, in the reasonable belief of the claimant was made in the public interest and which showed one or more of the six matters listed in section 43B(2)(a-f) of the Employment Rights Act 1996.

[202]Normally, that would be the end of the claimant’s whistleblowing detriment claims, but as we indicated above, we will go on to determine whether, if we found all of the disclosures were qualifying for protection. Detriments (§4.1 List of Issues) First Detriment (§4.1.1 List of Issues)

[203]The first detriment alleged was: “4.1.1. In relation to the claimant’s complaint dated 24 February 2022, although she received a telephone call from the second respondent to take more information about this, the claimant was not sent any notes, there was no follow up call or letter, or outcome.”

[204]We find that the claimant’s allegation is misconceived for a number of reasons: 204.1. We repeat our findings of fact above. 204.2. The claimant’s witness evidence [§47] confirmed that on 25 February 2022, the third respondent confirmed that she had appointed the second respondent to conduct an investigation into the matters that the claimant alleged. The claimant’s witness statement [§47] also confirmed that the second respondent contacted the claimant in early March 2022 to take her statement about the matter. We find that the third respondent’s contact with the claimant on 25 February 2022 was a “follow up call”. We also note that the claimant was absent from work due to ill health from 11 March to 16 April 2022 204.3. We find that the second respondent’s call to the claimant to take a statement was a “follow up call”. The claimant’s allegation is factually incorrect and contradicted by her own witness statement. 204.4. We find that it cannot have been a detriment to fail to provide the claimant with a copy of her witness statement. We do not find that a reasonable person would have found the failure to provide a copy of a witness statement negative. We find the claimant’s reaction to be no more than an unjustified sense of grievance. 204.5. We find that the claimant was put to no direct personal detriment by the action of Nuala Harrington sending the email dated 10 February to Sean Kelly, although we repeat that the conduct of Ms Harrigton was egregious. The claimant had not applied for the job. 204.6. We find that the detriment to the claimant would have been her shock and dismay at discovering what Ms Harrington had done. 204.7. We find that it is illustrative of the claimant’s mindset at the time that she stated in her email of 24 February, “…I am mindful that this may create a sense of bullying and scapegoating”, which is predictive of the claim she now makes. 204.8. We find that the claimant did not ask to be advised what would happen to Ms Harrington or to Mr Kelly’s appointment to the Pathway Coordinator role, which had already been finalised. We also find that it would have been a breach of confidentiality for the first respondent to disclose any disciplinary or other matters that arose from the disclosure by the claimant. We find the outcome of the claimant’s grievance of 19 October 2022 ([§3] [690]) to be reasonable: the claimant had no right to be advised of the detail or outcome of the process, other than that it was concluded. 204.9. We find that the claimant knew what the outcome of the investigation was, as she complains about it in her witness statement [§§ 47-48], stating that she knew about Mr Kelly’s “reappointment on her return to work on 11 April 2022.” The claimant complains that the “…investigation and re-interview were executed—within less than two months…”. We find that this was not an unduly quick or rushed timescale. 204.10. We are also mindful of the fact that the claimant did not complain about any of the things in this alleged detriment at the time. 204.11. We find that the clamant has not shown any evidence that the alleged detriments were done as a reaction to her submitting the complaint on 24 February 2022. Second Detriment (§4.1.2 List of Issues)

[205]The second detriment alleged was: “4.1.2. By failing to manage her grievance fairly including not resolving her grievance within a reasonable time and not treating her grievance seriously (and not providing her with notes relating to her grievance).”

[206]Our first finding is that the allegation lacks detail and definition.

[207]The grievance in question was the claimant’s grievance of 19 October 2022 [645- 651]. We find that the claimant was absent from work due to ill health from 22 November 2022 to 11 January 2023 (OH Report 8 April 2022 [603-604]), during which period, the first respondent could not progress the matter with the claimant direct without the clearance from OH, which was not given until 9 January 2023.

[208]The claimant was interviewed by the investigator, Steve Caton, on 11 January 2023 and 20 January 2023. Mr Caton tried to interview the second respondent on 22 March 2023, but was unable to do so until 25 April 2023, because the second respondent was not in work for the first date set, and her representative was not available for the second day set.

[209]We find Mr Caton’s Investigation Report, dated 19 May 2023 [79-135], was a thorough document. The grievance hearing took place on 2 August 2023. It was chaired by Darren Alexander, Assistant Director Housing Demand for the first respondent. The claimant attended with her Trade Union representative and a member of her family who gave support. The claimant produced a set of minutes [675-680]. The first respondent produced its own set of minutes [681-686].

[210]The first respondent’s outcome letter was dated 30 November 2023 [687-692]. Whilst we find that it may have been possible for the first respondent to determine the claimant’s grievance more quickly than it did (particularly the delays between the investigation report and the grievance meeting on 3 August 2023, and then the further delay in producing the outcome letter) the claimant was asked in crossexamination if the delay was reasonable, to which she answered “The delay might have been but the whole situation was painful.”

[211]We therefore find that the claimant’s own oral evidence undermines the factual allegation set out in the List of Issues concerning delay.

[212]We find that the claimant’s allegation that the first respondent did not treat her grievance seriously is not made out on the evidence. The first respondent acted quickly to appoint an investigator, Mr Caton, who produced a thorough report running to 66 pages. He interviewed all the relevant witnesses. The claimant made no complaint that witnesses were not interviewed who should have been.

[213]We find that both sets of minutes of the grievance meeting on 3 August 2023 show that a full and proper enquiry into the allegations was undertaken by Mr Alexander. We find his outcome letter to be a clear summary of his findings. We understand that the claimant did not agree with the findings, but we find that the claimant has shown no evidence from which we could have concluded that the outcome of the process was a detriment to the claimant because she had made a protected disclosure, if one had been made.

[214]The claimant’s request for notes was set out in her ET1, filed on 8 February 2023, after the date that that she had submitted her grievance (19 October 2022). The claimant confirmed in cross-examination that the notes which she was complaining had not been sent to her were: 214.1. Notes of a meeting on 3 November 2022 with the third respondent and Lynette Hart, an HR Manager with the first respondent. The claimant sets out the details of the meeting in her witness statement [§99]. In an email to Ms Hart and the third respondent dated 25 November 2022, the claimant requested a copy of “…any minutes, notes that could be shared from the meeting if possible.” [508] The third respondent replied on 27 November 2022 [509], advising the claimant that she would “…ask Lynette to look into notes from our meeting.” The claimant says she followed up her request in February 2023 but did not produce a copy of any email request. No copy of any minutes of the meeting of 3 November was produced in the bundle. The third respondent’s witness statement was silent on the matter. 214.2. Notes of a meeting on 11 January 2023 between the claimant and Mr Caton to investigate her grievance. The claimant requested minutes of the meeting, and when she was advised that there were no minutes, she asked for notes of the meeting, as Mr Caton said that he “…made notes on your grievance against the various points, which allow me to look at each point in turn.” [376-379]. No minutes or notes of the meeting were produced in the bundle.

[215]We find that the claimant was not provided with any notes or minutes of either meeting. However, we cannot see how that could be a detriment, as the claimant was unable to explain what the detriment was when cross examined: 215.1. After agreeing that the claimant was told that the claimant would get a grievance investigation the claimant was asked what the problem was in relation to the notes of the 3 November 2022 meeting. The claimant replied “Because we discussed not working at The Cocoon. When I asked about the notes then she [the third respondent] said she would check with Lynette.” 215.2. When asked what the detriment was in Mr Caton failing to provide notes of the 11 January meeting, the claimant replied, “In the meeting I told him everything and he said it would be investigated.”

[216]The claimant’s written evidence [§120] was weak on identifying the detriment, stating that the failure “suggest[s] a deliberate oversight possibly to avoid scrutiny of specific actions.”

[217]Had the claimant made protected disclosures, we would have found that these allegations about the failure to produce minutes of meetings were not a detriment and that the clamant had provided no evidence that any detriment was because she had made protected disclosures. Third Detriment (§4.1.3 List of Issues)

[218]The third detriment alleged was: “4.1.3. On 22 November 2022 the second respondent required the claimant to work at Cocoon and she sent an email to that effect.”

[219]We find that the factual basis of this allegation is not supported by the evidence. On 29 October 2022, the claimant emailed her colleagues, copying in her Line Manager, Ms Akosile [657]: “I am sorry due to personal reasons, I am unable to do the shift at the Cocoon this week- Saturday (29.10.22) as initially anticipated. I will notify you of my future availability.”

[220]In cross-examination, the claimant said that she was asked about the rota on 22 October 2022 and said she would try.

[221]On 22 November 2022, the third respondent emailed the Ms Akosile [657] with the following request: “Can you let me know when Nancy will be able to go on the Cocoon Rota please as we need support midweek too from all staff and managers.”

[222]This email must be seen in the context of the claimant’s own evidence that she had been placed on the roster to work at The Cocoon in October 2022 and had not objected to it. She then declined to do the shift on 29 October and advised her Line Manager that she would advise her of her future availability.

[223]Ms Akosile forwarded the second respondent’s email of 22 November to the claimant at 3:20pm on 22 November 2022 [656]. There is no email in the bundle dated 22 November 2022 to the claimant that required the claimant to work at The Cocoon. The claimant’s witness statement [§104] alleges that the claimant was sent an email by Ms Akosile about the claimant working a shift at The Cocoon. Paragraph 129 of the claimant’s witness statement alleges that, “I was instructed to continue working at the Cocoon.”

[224]We find it inconsistent that the claimant appeared to make no complaint about being rostered for a shift on 29 October, but alleges that being asked when she could do a shift at The Cocoon on 22 November isolated her, overlooking other colleagues and was direct targeting. We find that Ms Akosile asking the claimant when she may be ready to undertake a shift, when there was unchallenged evidence from the respondents that the issues that had made the claimant uncomfortable working there had been fixed, was nothing more than a reasonable request.

[225]We prefer the evidence of the second and third respondents and Ms Akosile (specifically paragraph 28 of Ms Akosile’s statement) to that of the claimant on this matter, as we find that the premise of the alleged detriment is factually flawed and inconsistent with the contemporaneous documents. We do not find that an enquiry of the claimant as to whether she would work at the Cocoon to be a detriment. Fourth Detriment (§4.1.4 List of Issues)

[226]The fourth detriment alleged was: “4.1.4. On 22 November 2022 the second respondent told the claimant that she was being hysterical and questioned why she was traumatised. She said did not understand why the claimant could not work there.”

[227]This is a straightforward dispute of evidence. There is a contemporaneous document to assist us with the events alleged. The alleged detriment followed on from Ms Akosile asking the claimant if she was available to work at The Cocoon [§4.1.3 of the List of Issues above]. It was agreed that after her conversation with Ms Akosile, the claimant rang the third respondent. Ms Akosile did not witness the telephone conversation.

[228]In her witness statement, the claimant alleges that in her conversation with the third respondent, Ms Geere “…minimised my concerns, labelling my reaction as ‘hysterical’ and ‘excessive’.” [§107]

[229]Our first finding is that the claimant’s witness statement is different from her claim. Her claim does not mention that the third respondent called the claimant’s reaction ‘excessive’. This is an inconsistency that undermines the claimant’s credibility.

[230]The third respondent did not recall using those words in her witness statement [§4 W/S]. The claimant emailed the third respondent at 11:30pm on 22 November 2022 [664-666]. In a three-page email, the claimant made no reference to the third respondent calling her reaction hysterical or excessive. The claimant set out a list of five things that had “retraumatised” her that day. There is no mention of the third respondent calling the claimant hysterical or excessive as one of those things.

[231]We find that if the claimant had made a protected disclosure, we would not have found that the factual allegation in this detriment had been made out. We find that the third respondent did not say the words alleged. We would also comment that the fifth of the claimant’s list of things that had retraumatised her, she had stated that “I was meant to birth my child this month and in the same month, I am being asked by the alleged perpetrator [the second respondent] to work in the same environment.”. Whilst we have empathy for the claimant’s loss of her baby, we find that it cannot have been reasonable to blame the second respondent for that loss. Fifth Detriment (§4.1.5 List of Issues)

[232]The fifth detriment alleged was: “4.1.5. By failing to provide a risk assessment in relation to the claimant and her role on or around 08 April 2022.” 211. We find this alleged detriment to be entirely misconceived. The claimant had started ill health absence on 8 April 2022. We can see no reason why a reasonable employer would have immediately begun a risk assessment at or around that time. This could not have been a detriment. Disability Discrimination Disabled Status (§6 List of Issues) 212. We find that the claimant has not shown that at the time of the claims made in this case (4 February 2022 to 22 November 2022) she was disabled because of depression and insomnia as defined by section 6 of the Equality Act 2010. 213. We make the finding above because: 213.1. We repeat our findings of agreed facts above, which we repeat in the following paragraph. 213.2. It was agreed that the claimant was absent from work due to ill health from 10 March 2022. Her medical records [342] show that the claimant was initially signed off on 10 March 2022 for a period of 8 days with a diagnosis of Work Related Stress (WRS). In the preliminary hearing before EJ Beyzade on 24 July 2023, the claimant is recorded as saying that the first time she reported her anxiety and insomnia to her GP was in March 2022 ([60] [§22]). The claimant also told EJ Beyzade that she accepted that depression and insomnia had not lasted for twelve months at the date of the PH (23 July 2023) ([60] [§23]). 213.3. We find that WRS is not depression and insomnia. 213.4. We have considered the claimant’s medical evidence [327-359], which included her impact statement dated 2 May 2023 [331-338] and make the following findings concerning the claimant’s impact statement: 213.4.1. The statement starts at a paragraph that carries the number 15. There were no paragraphs numbered 1-14. 213.4.2. The impact statement continues large sections of narrative about the matters alleged by the claimant, rather than focusing of what the effects of depression and insomnia had on her ability to carry out normal day to day activities. 213.4.3. The claimant asserts in her impact statement that she has had depression since “…around March 2022.”. She saw her GP on 18 March 2022, whose note was “Sleep has not been great has been using OTC sleeping tablets.” We find that on 18 March 2022; there was no diagnosis of insomnia by the GP. 213.4.4. The claimant spoke to an OHA, appointed by the first respondent, by telephone on 8 April 2022, who produced a report dated 11 April 2022 [356] that noted that the claimant was taking OTC sedation and that she “…has symptoms suggestive of minimal anxiety and moderate depression.” 213.4.5. The OHA noted that the claimant may experience further anxiety should she see evidence of rats again. It was recommended that the claimant should not return to the Cocoon until the rat infestation had been resolved. 213.4.6. In paragraph 15, the claimant quotes her GP notes from 5 September 2022 [351], which included the note “…tired, tearful, insomnia, sleep problem since July 2022.” The claimant was prescribed sleeping tablets for the first time on this date. The notes record that the “Problem” was “Insomnia (First)” and that the claimant said she had poor sleep since July 2022. We find this date to be inconsistent with the other dates the claimant has given for the onset of insomnia. We find that the claimant was diagnosed with insomnia on 5 September 2022 and that this is the first date on which the claimant had that impairment. 213.4.7. On 27 October 2022, the claimant was prescribed medication for depression. Her GP noted that she was “tearful, looks low in mood, insomnia.” and that the claimant “…has been having some insomnia – recent onset” [352] We find that the claimant was diagnosed with depression on 27 October 2022 and that this is the first date on which the claimant had that impairment. 213.4.8. The claimant says that on 3 November 2022, she told the third respondent and Lynette Hart that “I have been suffering from depression and I had suicidal thoughts …” 213.4.9. The claimant also reports having suicidal thoughts after the events of 22 November 2022. 213.4.10. She consulted her GP by telephone on 25 November 2022 [353], who recorded that the claimant “…was having a bit of a difficult time at work.” The GP also noted that: 213.4.10.1. The claimant had “…not slept well since Wednesday." 213.4.10.2. The prescription of Mirtazapine was to continue. 213.4.10.3. The claimant did not tell the GP that she had been having suicidal thoughts. 213.4.11. We find it implausible that the claimant would not have mentioned having suicidal thoughts to her GP if she had been having such thoughts earlier in the same month. 213.4.12. The claimant spoke to the same OHA who had prepared the pervious report by telephone on 28 December 2022. The OHA prepared a report dated 29 December 2022 [358-359]. The report noted that the claimant “…has experienced a long period of stress that has led to a recognised mental health illness which is receiving appropriate treatment with pharmaceutical and talking therapies.” No estimate of how long the claimant’s symptoms would last, and no indication was given as to whether she met the definition of disability under the Equality Act 2010. 213.4.13. We attach limited weight to the comment about mental health illness because the OHA was a nurse, not a doctor and we therefore have no insight as to whether they were qualified to make a diagnosis. 213.4.14. The claimant produced no further notes from her GP after 30 January 2023 [355]. 213.4.15. The claimant produced a letter from her GP practice dated 7 March 2023 [341], which stated: “Miss Adande has attended consultations with our GP’s in surgery where she received treatment for depression and issued with medication., Promethazine hydrochloride 25mg tablets commenced issue commenced issue on 20th November 2022.” 213.4.16. At paragraph 30 of her impact statement, the claimant says that her “mental health impairment started on the 4th of February 2022.” [335]. This is inconsistent with the GP records and with what the claimant said to EJ Beyzade at the preliminary hearing. 213.4.17. We find that at the date of the claimant’s impact statement, 2 May 2023, she had the impairment of insomnia since 5 September 2022, and the impairment of depression since 22 October 2022. 213.4.18. We find that if the claimant had depression from the date alleged, she would have raised it with her GP, who would have diagnosed it and offered treatment. 213.4.19. We find that the first date that the claimant alleges that she was subjected to disability discrimination was 4 February 2022, which she asserts in her impact statement to be the date her mental health impairment started. 213.4.20. We find that the last date on which the claimant alleges that she was discriminated against because of, or arising from disability was 22 November 2022. 213.4.21. We took into account the record of the claimant’s First Formal Sickness Absence Meeting on 26 April 2023 [577- 579], at which the claimant was represented by her Trade Union Representative. The meeting was held by Ms Akosile, who recorded the following reasons that the claimant had given for her absence: “Nancy stated that she was disappointed that she was put on a Stage 1 sickness absence, because she was of the view that she never should have been on sickness absence. Nancy stated that it was because of work that she went off on sickness. Nancy also reported the following: 1. Nancy stated that she went off sick from work due to the increased caseload and the expectation that she still needed to manage shift at the Cocoon. 2. Nancy advised that there had been an increased volume of work given to her, in addition to her allocated cases and this included meeting the deadline of the cases. 3. Nancy reported the following about the Cocoon: - There is an increase in the requirement of the Cocoon. - Increasingly being asked to cover the Cocoon in the absence of staff members. - There are no breaks whilst you are on shift at the Cocoon, because the Cocoon is to be covered by two members of staff at a time. - It is difficult to do work at the Cocoon due to the nature of how busy it can get, as a result, it impacts on your ability to meet deadlines in your work. - Nancy advised that the dead rats have impacted on her emotional wellbeing.” 213.4.22. We find that the first OHA report had indicated that the claimant could work in the Cocoon if the smell of rats had been dealt with. We have also found that the respondent dealt with the odour issues at The Cocoon within weeks of 4 February 2022. 213.4.23. We do not have to consider what the claimant’s subsequent medical history was. We are required to consider whether, at the time of the alleged discrimination (4 February 2022 to 22 November 2022, the effect of the impairments of depression and insomnia had lasted or were likely to last at least 12 months. We repeat our findings above that the claimant has not shown that she had insomnia to the degree that it could have met the definition of disability until 5 September 2022 and depression until 22 October 2022. 213.4.24. The claimant’s case at its highest is that the impairments started on 4 February 2022. If the last act complained of was on 22 November 2022, then the effects could not have actually lasted 12 months. 213.4.25. We are then left with the task of determining whether the effects were likely to last at least 12 months from 5 September 2022. 213.4.26. We find that even if the claimant’s factual case is correct and she had depression and insomnia from 4 February 2022, the effect of the conditions lasting a further two months to 4 February 2023 was not something that could well happen. 213.4.27. We find that the GP notes show that the claimant’s insomnia was intermittent. We find that claimant’s written evidence was inconsistent with the documentary evidence and her oral evidence was inconsistent with her own written evidence. 213.4.28. Whilst we give weight to the claimant’s evidence in chief, it must be consistent to meet the burden of proof on her. 213.4.29. We find that the claimant’s case is one which echoes the guidance of the EAT in J v DLA Piper UK LLP

UKEAT/0263/09

, in which the EAT confirmed that, particularly in cases where the mental impairment is disputed, the focus of the tribunal's enquiry should now be on the effect the impairment has on an employee's day-to-day activities. The EAT drew a distinction between symptoms of low mood and anxiety caused by clinical depression and those that derived from a "medicalisation of work problems" or "adverse life events". While the former was likely to be a disability, the latter was not. 214. We find that the claimant was medicalising her work problems, which is demonstrated by the content of the documents in the bundle around the times of the matters complained of. The claimant’s claims of disability discrimination therefore fail if she cannot show she was a disabled person at the relevant time. We also find that the respondents did not know and could not have been reasonably expected to know that the claimant was a disabled person at the time with which her claims are concerned. 215. However, as we have indicated above, we will make findings relating to the factual matters alleged in the disability discrimination claims. Direct Disability Discrimination (§7 List of Issues) 4 February 2022 (§7.2.1 List of Issues) 216. This was the allegation that on 04 February 2022, the second respondent was informed by Kemi Akosile and Daniel Holmes that the claimant became unwell due to the conditions within the Cocoon by email and there was no response sent or any risk assessment provided. 217. We repeat our findings of fact about 4 February 2022 made above in respect of the whistleblowing detriment claims. We find the claim itself to be curiously worded in the List of Issues. The claimant’s witness statement [§129] clarifies the matters complained of: “4th February 2022, I became unwell due to the working conditions at the Cocoon. I duly reported this to my employer, yet I received no response, nor was a risk assessment conducted in light of my illness.” 218. We find this claim to be misconceived for the following reasons: 218.1. The claimant did not dispute Ms Akosile’s evidence that she had received a notification from Danile Holmes and Sheralyn Hedges about the conditions at The Cocoon on 4 February 2022. Nor did the claimant dispute Ms Akosile’s evidence that she had received an email from the claimant which informed her that the claimant had brain freeze and the smell was terrible. 218.2. Neither did the claimant dispute that she continued to work from the reception area of the Cocoon until the decision was made to close the premises, whereupon the claimant went to work at the first respondent’s main office. 218.3. The claimant did not go off sick on 4 February and continued to work. 218.4. We find no reason why the first or second respondent should have replied directly to the claimant or ordered a risk assessment for her. The first respondent closed the centre, took remedial action and reopened it when it was deemed safe to do so. 218.5. The claimant had a particular reaction to the conditions at The Cocoon, which led to her taking time off due to ill health. A referral was made to OH and the claimant was never required to work at the Cocoon again. 218.6. The claimant did not identify a comparator for this alleged act of direct discrimination. We cannot find that the actions of the respondents were because of the claimant’s asserted disability. We cannot find that the respondents would not have treated someone without the claimant’s asserted disabilities differently to the claimant. We have not found facts from which we could conclude in the absence of an explanation show that there was a breach of the Equality Act 2010. 218.7. If we had found that the claimant switched the burden of proof, we would have found that the alleged acts or omissions of the respondents were not because of disability. 22 November 2022

(1) (§7.2.2 List of Issues) 219. This is the claim that, on 22 November 2022 the second respondent required the claimant to work at Cocoon, and she sent an email to that effect. 220. We find that this claim is also misconceived for the following reasons: 220.1. Neither the second respondent, nor anyone else required the claimant to work at The Cocoon on 22 November 2022. We repeat our findings above, which can be summarised as follows: 220.1.1. The claimant had initially not objected to working at The Cocoon in October 2022. 220.1.2. The claimant then pulled out of working a rostered shift on 29 October 2022. 220.1.3. The second respondent had done no more than ask Mr Akosile to enquire of the claimant if she was able to work at The Cocoon, which we find reasonable in light of the undisputed facts that: 220.1.3.1. The claimant had not objected to being placed on the roster in October 2022; 220.1.3.2. The claimant had informed colleagues that she could not do her rostered shift at The Cocoon on 29 October 2022 but would advise them about her future availability; and 220.1.3.3. The respondents were entitled to know when or if the claimant might be available to work at the Cocoon, given that the odour issues that the claimant had complained about had been rectified. 220.1.4. When the claimant indicated that she could not, no more was done. 220.1.5. We find that nothing that the respondents did was a detriment. 220.1.6. The claimant did not identify a comparator for this alleged act of direct discrimination. We cannot find that the actions of the respondents were because of the claimant’s asserted disability. We cannot find that the respondents would not have treated someone without the claimant’s asserted disabilities differently to the claimant. We have not found facts from which we could conclude in the absence of an explanation show that there was a breach of the Equality Act 2010. 220.1.7. If we had found that the claimant switched the burden of proof, we would have found that the alleged acts or omissions of the respondents were not because of 22 November 2022

(2) (§7.2.3 List of Issues) 221. This is the allegation that on 22 November 2022, the third respondent told the claimant that she was being hysterical and questioned why she was traumatised. The third respondent said she did not understand why the claimant could not work at The Cocoon. 222. It was not disputed that every member of staff at the claimant’s grade had to work shifts in The Cocoon. It is therefore difficult for the claimant to argue that she was treated less favourably than non-disabled colleagues. 223. We find that taking into account the facts we found above, including the contemporaneous document (the email from the claimant to the third respondent which did not make the allegation she now makes) and the inconsistencies in the pleadings, oral and written evidence of the claimant and the credibility of the evidence of the third respondent, we cannot find that the actions of the respondents were because of the claimant’s asserted disability. We cannot find that the respondents would not have treated someone without the claimant’s asserted disabilities differently to the claimant. We have not found facts from which we could conclude in the absence of an explanation show that there was a breach of the Equality Act 2010. The claimant did not identify a comparator. 224. If we had found that the claimant switched the burden of proof, we would have found that the alleged acts or omissions of the respondents were not because of Discrimination Arising from Disability (§8.1.1 List of Issues) 225. This is the allegation that the unfavourable treatment was the requirement for the claimant to work at The Cocoon by the second and third respondent. The claimant was required to work at the Cocoon (she was off sick from 11 March 2022 until 14 April 2022 and after 22 November 2022-10 January 2023). 226. We find this case to be misconceived. The claim as set out in the List of Issues did not disclose a claim under section 15 of the Equality Act 2010. The claimant only referenced the claim in one sentence of her witness statement [§128]: “The requirement to work in an environment that was harmful to my health amounted to unfavourable treatment. The detriment I suffered was a direct result of my disability, and the working conditions could have been modified to prevent such adverse effects.” 227. The claimant did not identify the ‘something’ that arose from her disability. She appears to have relied on the disability itself. The claimant has misunderstood the requirements of section 15. The claim appears to be an amalgam of reasonable adjustments and direct discrimination. 228. The claimant did not reverse the burden of proof because the claim itself at its highest was not capable of succeeding as a section 15 claim. Failure to make Reasonable Adjustments (§9.2.1 List of Issues) 229. This is the claim that a PCP applied by the respondents that placed the claimant on the rota to work at the Cocoon, which she says placed her at a substantial disadvantage. The claimant says that the respondent should have made a reasonable adjustment by not placing her on the rota to work at the Cocoon on 03 November 2022; and providing a risk assessment in relation to the claimant and her role on or around 08 April 2022 230. We find that this claim is misconceived. We make that finding because: 230.1. We find that the respondent did not apply the PCP alleged. We repeat our findings above that the claimant was not placed on the roster to work at The Cocoon on 3 November 2022 and was not required or asked to work at The Cocoon on 22 November 2022. 230.2. We find that the claimant’s witness statement [§129] did not assist her claim at all because she did not indicate what reasonable adjustments should have been made, or what the disadvantage was to the claimant of the PCP compared to people who did not have the claimant’s disability. 230.3. The claimant’s allegation that the respondents’ failure to provide a risk assessment on 8 April 2022 fails because we cannot see what practical difference it would have made, as the claimant never returned to work at The Cocoon. Harassment Related to Disability (§10.1.1 List of Issues) 231. These are claims of the same three sets of facts relied on in the direct disability discrimination claim and fail for the same factual reasons. In terms of the law, the claimant did not move the burden of proof for the same reasons as we set out above in respect of the direct discrimination claim. Direct Race Discrimination (§11 List of Issues) 26 July 2022 (§ 11.2.1 List of Issues) 232. This is the allegation that on 26 July 2022 the claimant’s line manager, Kemi Akosile notified the second respondent about her travel and hotel expenses, and the second respondent put the claimant unnecessarily put the claimant through a stressful process.

[233]The claimant sets out her case over three pages in her witness statement [§§67- 78]. Ms Akosile deals with the same facts in two short paragraphs of her witness statement [§§32-33].

[234]We find that the claimant wished to visit a young adult who had been placed several hundred miles away from East London. The first respondent’s policy requires staff to seek approval for the cost incurred in long journeys that include overnight accommodation.

[235]The claimant says she applied for authorisation on 26 July 2022 for a visit that she wished to make on 1 August 2022.

[236]We find the claimant’s allegation to effectively be one of delay in approving her to make the trip and incur expenses, which the claimant has made into a claim of direct race discrimination.

[237]The claimant’s own evidence in chief [§70] acknowledges that there were delays in approving travel requests, noting that the second respondent sent an email to “…staff members whose visits were three months overdue, including my own, urging managers to ensure their workers' visits to care leavers were current.”

[238]The claimant states that her visit was ‘routine’, but we prefer Ms Akosile’s evidence [§§32-33] that she had been on holiday when the application had been made for funding by the claimant. The matter had gone to the second respondent, who had decided that the matter needed further consideration. On Ms Akosile’s return from holiday, she advised the second respondent that the visit was low risk and should be authorised. The second respondent authorised the visit immediately.

[239]We find the claimant’s comments about Sheralyn Hughes in connection to this allegation to be misjudged, as she accepted in cross-examination that her application for a similar authorisation was marked ‘HARP’, which indicated that it was high risk. The claimant said her case was high risk but “I did not know. If I had been asked to do this then I would have done so.”

[240]We do not find that, when considering the evidence of the claimant and respondent’s witnesses together with the documents that the claimant’s allegation has any more to it than mere assertion. The emotive way in which the claimant describes this matter is indicative, in our finding, of her being in a mindset where the second respondent could do no right.

[241]We do not find that there are facts from which we could establish in the absence of any explanation from the respondent that the respondents may have breached the Equality Act 2010.

[242]If we had found such facts, then we would have accepted the respondent’s 13 January 2020 (§11.2.2 List of Issues)

[243]This is the allegation that the claimant was not appointed to the role of Pathway Coordinator on 20 January 2020, but a white colleague named Sheralyn Hedges was appointed.

[244]We have found this claim to be out of time and that it is not reasonable to extend time, but we would not have found in favour of the claimant on the claim if it had been in time or if we had exercised our discretion to extend time because: 244.1. Like many of her evidential submissions, this claim is based on a fanciful supposition of facts. In this case it is the claimant’s allegation [§11] that the process was biased because “Intriguingly, Ms. Hedges was known to be the Head of Year for Respondent 2's child at their school, a connection by disclosed by Ms Sheralyn Hedges only after the interview process. This relationship between a panel member and a candidate raises concerns regarding potential biases and the fairness of the selection process. “ 244.2. It was agreed that Ms Hedges identifies as White. 244.3. It was agreed that there were 5 posts available. Although there was a prolonged discussion about the exact ethnicity of the five successful candidates, we find that there was a wide range of ethnicity amongst the candidates. 244.4. The claimant did not complain about her non-selection for more than 2 years. 244.5. The second respondent and Ms Akosile sat on the selection panel with a third manager of the first respondent. 244.6. We found Ms Akosile and the second respondent’s evidence on this matter to be credible in that it was internally consistent, consistent with each other and their oral evidence was consistent with their written evidence and the documents. 244.7. We find that: 244.7.1. Ms Hedges was not less qualified than the claimant. 244.7.2. The second respondent did not know Ms Hedges from the latter’s role at the school attended by her child. 244.7.3. The process run by the first respondent was fair and not tainted by racism. 244.8. We find that this claim bears the hallmarks of being reverse engineered some years after the event by the claimant.

[245]We do not find that there are facts from which we could establish in the absence of any explanation from the respondent that the respondents may have breached the Equality Act 2010.

[246]If we had found such facts, then we would have accepted the respondent’s 16 February 2022 (§11.2.3 List of Issues)

[247]This is the claim that the first respondent’s act of sending Sean Kelly a set of the interview questions and suggested answers for an interview for the role of Pathway Co-ordinator in January 2022, comparing the first respondent’s failure to send the claimant a set of the questions and answers when she was interviewed for the same role in 2020.

[248]We find that this claim is fundamentally flawed. The claimant did not seek to show that any of the candidates in the 2020 selection process had been sent the questions and answers for the interview. Mr Kelly is not a true comparator. The claimant cannot, on her evidence at its highest, show that she was treated less favourably than a hypothetical comparator would have been treated two years earlier. A hypothetical comparator would have been someone who did not share the claimant’s race who applied for the role of Pathway Co-ordinator in January 2020.

[249]This claim was out of time, but we found it just and equitable to extend time (see below). January 2022 and 22 February 2022 (§11.2.4 List of Issues)

[250]This is the claim that the third respondent told the claimant and her team that there was a Pathway Co-ordinator position coming up and that they did not need to apply because they would all become Pathway Co-Ordinator automatically. This was confirmed in a supervision meeting on 22 February 2022.

[251]We find that the claimant has failed to show evidence from which we could conclude in the absence of explanation, that the respondents breached the Equality Act 2010. We make that finding because the claimant’s own claim states that her whole team were given the same message. No evidence was led that the whole of the team shared the claimant’s ethnicity.

[252]The basis of a claim of direct discrimination is that the complainant has been treated less favourably that and actual or hypothetical comparator. In this case, the claimant’s case at its highest does not establish facts from which we could conclude in the absence of explanation that the Equality Act 2010 had been breached.

[253]If we had found such facts, then we would have accepted the respondent’s 3 October 2022 (§11.2.5 List of Issues)

[254]This is the allegation that on 3 October 2022, Kate Dempsey informed the claimant that the second respondent had asked her to update the claimant that the first respondent could not fund her request to study an Open University social work masters’ course. The comparator was Ms Hedges.

[255]We find that the claimant’s evidence in chief [§§81-82] was not consistent with her claim as set out in the List of Issues, which stated that Ms Hedges had told the claimant in June 2022 that she had been pushed to apply for the same course by the second respondent, but had not wanted to do it.

[256]The claimant’s witness statement [§81] stated: “I was informed by Kate Dempsey that funding for my social work study was unavailable due to financial cuts—a claim contradicted by the support Sheralyn Hedges received, including promises of a managerial position post-qualification. This contrast was highlighted again on October 17, 2022, in a discussion with Respondent 3, where it emerged that only white staff were encouraged to apply for Open University courses.”

[257]We find the two versions of events are not different accounts of the same facts, but entirely different allegations. We find that the respondents knew of the claimant’s wish to qualify as a Social Worker from 2019.

[258]We also find that it was agreed evidence that both the claimant and Ms Hedges did the course with the Open University starting in January 2023 [265].

[259]The claimant says that she raised this matter in her discussion with the third respondent on 17 October 2023 that preceded her submission of her grievance on 19 October 2022 [649]. The matter was one of the issues raised by the claimant in her grievance.

[260]We find that the claimant has shown facts from which we could conclude in the absence of explanation that the respondents may have breached the Equality Act 2010. However, we accept the credible evidence that it was a decision of senior managers to refuse funding for all training. This decision was then revoked, and the claimant and Ms Hedges attended the training. We find the respondent’s explanation satisfies the burden on them to show that the reason for the conduct was not discrimination. Harassment Related to Race (§12 List of Issues) 3 October 2022 (§12.1.1 List of Issues)

[261]This claim is based on the same facts as the direct discrimination claim above [(§ 11.2.1 List of Issues). We make the same findings of fact and find that the respondents’’ actions in advising the claimant that funding would not be available for the course she wished to take did not relate to her race. Victimisation (§13 List of Issues)

[262]It was agreed that the claimant’s grievance of 19 October 2022 was a protected act. 22 November 2022 (§13.2.1 List of Issues)

[263]This is the same factual allegation as §§ 4.1.7, 7.2.3, and 10.1.3 of the List of Issues concerning the alleged conversation between the claimant and the third respondent on 22 November 2022 after the claimant had been asked when she might be able to work at The Cocoon.

[264]We have already determined that the factual basis of the claim is incorrect and that the claimant did not switch the burden of proof to the respondent. There is no need to repeat the reason for that finding, which applies to this claim. 3 November and 11 January 2023 (§13.2.2 List of Issues)

[265]This claim was part of the second detriment alleged because of whistleblowing (§4.1.2. List of Issues). We repeat our findings of fact on the matter set out above. We find that the matters alleged were not detriments for the same reasons as set out above. Grievance Outcome (§13.2.3 List of Issues)

[266]This is the alleged failure of the respondents to provide the claimant with a grievance outcome to her grievance of 19 October 2022. We have made findings above about the process, but in relation to this claim, we find that the first respondent did provide the claimant with a grievance outcome in the form of Mr Caton’s report dated 19 May 2023 [78-135]. This claim therefore fails on the facts. Consideration of all the claims in the round

[267]Having made individual findings on each of the claims we looked at the totality of the evidence again and considered whether, if the evidence was taken as a whole, the claimant’s claims could be seen as a pattern of discriminatory behaviour.

[268]Regrettably for the claimant, the claims did not coalesce into a pattern of conduct extending over a period that demonstrated that the claimant had been discriminated against because of disability or race.

[269]As we have indicated, we found that the claimant viewed her history with the respondents with hindsight to create a discrimination claim about matters that she did not complain about at the time, such as the job interview in 2020. The contemporaneous documents simply did not assist the claimant. Time Limits – Discrimination Claims – (§§2.1-2.2 List of Issues)

[270]In making our decisions, we applied the law as set out at length above and considered the closing submissions of the parties, the written evidence, the oral evidence, the documents and the overriding objective.

[271]We make the following findings: 271.1. The claimant’s ET1 was presented on 08 February 2023. 271.2. Any claim against the first respondent that arose before 3 September 2022 is out of time given the dates of ACAS early conciliation unless they are part of conduct extending over a period. 271.3. The following claims of discrimination were presented outside the primary time limit against the first respondent: 271.3.1. Direct disability claim §7.2.1. 271.3.2. Harassment relating to disability claim §10.1.1. 271.3.3. Direct race discrimination claims §11.2.1, §11.2.2, and 11.2.3. 271.4. We find that the claimant had assistance from her trade union throughout the period covered by the discrimination claims that were presented outside the primary limitation period above. 271.5. We find that the direct disability claims at §7.2.1 and harassment related to disability claim at §10.1.1 are pleaded in the alternative and arose on 4 February 2022. We make the following findings about those claims: 271.5.1. For the reasons set out above, we find the claims to be weak, which is a matter we can take into account. 271.5.2. The claimant had trade union advice. 271.5.3. The lengthy documents that the claimant submitted to the Tribunal containing complex arguments about the law and Rules show that she was capable of undertaking legal research on time limits. 271.5.4. The claimant did not assert that she was unaware of the time limits. 271.5.5. There is no other disability related claim between 4 February 2022, which was the first claim, and 22 November 2022, which was the last claim, apart from the claim on 8 April 2022 about a risk assessment. 271.5.6. We find that the claimant has not shown conduct extending over a period. 271.5.7. We do not find it just and equitable to extend time. 271.5.8. We do not find the claimant’s arguments explaining why the claims were presented late are compelling. We have to look at the whole of the period available to the claimant to make the claims and whilst we appreciate that she had periods of illness, she did not submit that she was unable to present her claims earlier than she did because of ill health. 271.5.9. The claims are dismissed. 271.6. We find that the direct disability discrimination claims at §11.2.1 (26 July 2022), §11.2.2 (13 January 2020) and §11.2.3 (16 February 2022) are unconnected in their factual matrixes. 271.7. We repeat all our findings about the direct disability claims at §7.2.1 and harassment related to disability claim at §10.1.1. The three claims are dismissed. 271.8. Any claim against the second and third respondents that arose before 7 November 2022 is out of time given the dates of ACAS early conciliation unless they are part of conduct extending over a period. 271.9. The following claims of discrimination were presented outside the primary time limit against the second and third respondents: 271.9.1. Direct disability claim §7.2.1. 271.9.2. Harassment relating to disability claim §10.1.1. 271.9.3. Direct race discrimination claims §11.2.1, §11.2.2, 11,2,3, and §11.2.5. 271.9.4. Harassment related to race claim §12.1.1. 271.10. We repeat our findings made in respect of the out of time claims made against the first respondent. We apply the same findings to the direct discrimination claim at §11.2.5 (which was in time for the first respondent, but out of time for the second respondent. Time Limits – Whistleblowing Claims – (§§2.3 List of Issues)

[272]We make the following findings: 272.1. The claimant’s ET1 was presented on 08 February 2023. 272.2. Any claim against the first respondent that arose before 3 September 2022 is out of time given the dates of ACAS early conciliation. 272.3. The following claim of detriment because the claimant made a protected disclosure at the following paragraphs of the List of Issues are out of time against the first respondent: 272.3.1. Failing to provide a risk assessment (§4.1.5). 272.4. Any claim against the second and third respondents that arose before 7 November 2022 is out of time given the dates of ACAS early conciliation. 213.1. The following claim of detriment because the claimant made a protected disclosure at the following paragraphs of the List of Issues are out of time against the second and third respondent: 213.1.1. Failing to provide a risk assessment (§4.1.5).214. We applied the more rigid statutory test on time that applies in whistleblowing cases and found that it was reasonably practicable for the claimant to have submitted the claim of failing to provide a risk assessment in April 2022 on time. It was presented nearly 10 months later. We appreciate that the claimant had health issues, but she also had trade union representation and did not suggest that she was medically incapable of submitting the whistleblowing case on time.

215. Claim (§4.1.5) is dismissed as being out of time. Remedy

216. We have not dealt with the issues of remedy at paragraphs 5 and 14 of the List of Issues because we have not found in favour of the claimant in any of her claims. Approved by: