Ms R Leher v Aspers (Stratford City) Ltd and Others: 3200390/2019
EMPLOYMENT TRIBUNALS
Case No 3200390/2019
Between
Ms R LeherClaimant(1) Aspers (Stratford City) Limited (2) Mrs K Joyce (neé Greenyer) (3) Mr T Greenwood (4) Miss D PenevaRespondent
Before
Employment Judge Moor
Members
Ms P AlfordMrs M LeggMr P Starcevic (instructed by counsel) for claimantDate 22 March 2022
JUDGMENT
It is the unanimous judgment of the Tribunal that:[1]The complaint of unfair dismissal is well-founded.[2]The dismissal was an act of unlawful victimisation.[3]The failure to respond to the request for games table refresher training was direct race and age discrimination.[4]It is just and equitable to extend time for the complaint of direct discrimination in relation to games table refresher training.[5]Save, in respect of one issue failing by majority decision, the remaining claims of direct race or age discrimination fail.[6]The Second Respondent on behalf of the First Respondent, unlawfully victimised the Claimant by: Case Number: 3200390/2019 2a. Failing to investigate her allegation that she had been victimised or harassed after her return to work from 5 November 2018;b. In his approach at the grievance appeal hearing of 28 November 2018 by deliberately discouraging the Claimant from arguing that what had happened to her was discrimination; and by threatening the Claimant in relation to further discrimination complaints.[7]The First Respondent unlawfully victimised the Claimant by requiring her to undertake 6 weeks’ training in the proposed alternative role in the gaming team.[8]The First Respondent, the Third and the Fourth Respondent unlawfully victimised the Claimant by excluding her from discussions about after-work drinks.[9]Except for the claims of unlawful victimisation that have succeeded by majority (see below), the remaining claims of victimisation fail.[10]The claims of unlawful harassment fail (in one respect by majority).[11]The holiday pay claim fails. It is the judgment of the Tribunal by majority that:[12]The dismissal was not an act of direct race or age discrimination.[13]The First Respondent and Third Respondent unlawfully victimised the Claimant by giving her 4 short changeover shifts in December 2018.[14]The First Respondent unlawfully victimised the Claimant by failing to provide her with handover information on 19 and 20 December 2018.[15]The claims of direct race and age discrimination fail in relation to the failure of Mr Greenwood to investigate and his approach at the grievance appeal hearing.[16]The claims of harassment relating to race and age fail in relation to the failure of Mr Greenwood to investigate and his approach at the grievance appeal hearing It is the minority judgment of Ms Alford that:[17]The dismissal was an act of direct race and age discrimination.[18]The claims of direct race and age discrimination succeed in relation to the failure of Mr Greenwood to investigate and his approach at the grievance hearing of 28 November 2018.[19]The claims of harassment relating to race and age succeed in relation to Mr Greenwood’s conduct towards the Claimant during the grievance hearing of 28 November 2018. Case Number: 3200390/2019 3 It is the minority judgment of Mrs Legg that:[20]The Claimant was not unlawfully victimised by:a. the Third Respondent giving her 4 short changeover shifts in December 2018;b. the failure to provide handover information to her on 19 and 20 December 2018.
REASONS
Law
[1]The Claimant resigned from her employment with the First Respondent (‘R1’) in circumstances she claims were direct race and/or age discrimination, victimisation, harassment relating to race and/or age and constructive unfair dismissal. She also makes a claim for outstanding holiday pay.[2]The hearing was originally listed for what became the first week of the national lockdown in March 2020. It was unfortunately postponed for a further 18 months. We thank the parties for undertaking a remote hearing by video. During the hearing different participants encountered the occasional connection difficulty, but we ensured an effective hearing took place by pausing and, if necessary, recapping any evidence missed.
Issues
[3]The claim form was presented on 14 February 2019. At that point the Claimant was still employed. The claim alleged direct age and race discrimination, victimisation and harassment relating to race and age. The Claimant resigned on 11 April 2019, and on 17 June 2019 she submitted an amended claim making additional discrimination and victimisation claims and an unfair constructive dismissal claim including that the dismissal was discrimination (paragraph 100). EJ Burgher allowed the claim to be amended at the Preliminary Hearing on 24 May 2019. The Claimant provided further particulars by order. Both the amended claim form and the amended response form on behalf of all Respondents well set out the issues in the case. EJ Burgher drew up a list of issues appended to his Case Management Order. Mr Starcevic helpfully provided a List of Factual Allegations identifying the claim to which each related. We were also assisted with a chronology, cast list and glossary. The age group relied on is the mid-forties and over.[4]We agreed to deal with liability only at this stage.[5]The holiday pay claim was not particularised. By the end of the hearing, it was established that it related to non-payment in respect of 4 days of booked holiday in the holiday year 2018 ultimately taken as sickness. The Claimant contended that European law allowed these to be carried over. R1 contended that the days claimed were after the 4 weeks’ holiday under Regulation 13 of the Working Time Regulations 1998 (derived from the relevant European Directive) and therefore could not be carried over. It Case Number: 3200390/2019 4 was agreed that holiday accrued but untaken in the holiday year 2019 had been paid.
Findings of Fact
[6]We heard the evidence of the Claimant, the third Respondent, Mr T Greenwood, group HR director, the second Respondent, Mrs K Joyce (neé Greenyer), the fourth Respondent, cash desk supervisor, Miss D Peneva, Miss L Lewis, HR manager, and Miss C Djurisic, gaming customer service manager, seconded to manage the cash desk. We read the documents referred to us in the evidence. In reaching findings of fact we applied the balance of probabilities test by asking ourselves what was more likely to have occurred. We make the following findings of fact.
complaints.
[7]R1 runs a ‘super casino’ at Stratford Westfield Centre. It is open 24 hours a day, 364 days a year. It employs around 560 staff. R1 belongs to the Aspers Group of companies.[8]The Claimant is of mixed black African heritage. At the time she started with R1, she was nearly 41 years of age. She had about 22 years’ experience of working in the gaming industry, including on cash desks and on gaming tables as a dealer at high-end London casinos. She also had managed a betting shop.[9]The Claimant began work on 21 November 2011 for R1 as a cashier on the cash desk. She was initially paid £23,500. This was more than any other cashier because of her greater experience. Thus, from the start of her employment, she was the most experienced cashier on the cash desk. In that sense she was a senior cashier, though this was not a job title.[10]By the time she resigned on 11 April 2019, she was the longest serving cashier. She had seen numerous cash desk colleagues promoted. None of them were black or of mixed black heritage. All of them were younger than her, but two had been promoted in the 40-50 age bracket.[11]During her employment, if a shift changed and there was no supervisor present, and if she was working, the Claimant was given the task of handover to the next shift. She would inform the next shift what the next supervisor needed to know. This was not a formal arrangement. We find it more likely than not that the Claimant was given this task because she was the most experienced cashier on shift when she worked.[12]From time to time the Claimant covered for the supervisor role. She also trained new and junior cashiers.[13]Like many on the cash desk the Claimant volunteered for overtime.[14]The Claimant actively sought out training opportunities. Salary Increase 2012[15]In early 2012, management decided to award gaming and cash desk staff a £1000 salary increase to recognise their contribution to the successful opening of the casino. Case Number: 3200390/2019 5[16]The Claimant was sent a letter in which she was purportedly awarded this increase, but her salary in fact remained the same at £23,500. As far as she is aware, she was the only person this happened to. At the time, there were other black cashiers and others with mixed black heritage and other cashiers of her age group, and she does not think this happened to them.[17]Mr Greenwood gave differing explanations for this salary increase. At paragraph 7 of his statement, he suggested that this increase was to make up some salaries to their market equivalent but not the Claimant’s because she was on the top of the salary band. Whereas in his oral evidence he recalled that the £1000 increase was general and paid to the workforce after a successful opening. He accepted the Claimant was involved in the successful opening and could not explain why she was not awarded the increase. After the Claimant immediately complained and persisted over several months, she was ultimately granted the £1000 salary increase in July 2012. We find this was an increase applied across the board and no reliable explanation has been given for why the Claimant did not receive the increase initially. STEP and PPP Bonuses from 2016[18]In July 2016, R1 introduced a bonus scheme. It had two parts both dependent on appraisal scores, known as Performance Enhancement System (‘PES’) scores (406).[19]First, the STEP programme identified high achievers. If an employee received 3 PES scores of 4 in their last three 6-monthly appraisals, then they would receive a salary increase of £1000.[20]Second, for a Personal Performance Payment (PPP) bonus, the employee’s two previous PES scores had to be at least a 3 and a 4.[21]Mrs Joyce told the Claimant that she was excluded from the STEP incentive because her salary exceeded ‘the bracket allocated’ (425). She says she was told by a manager to tell the Claimant this, though she does not remember by whom. Mrs Joyce accepted in evidence the Claimant’s salary was not in fact above the salary band.[22]On balance, despite the Respondents’ inconsistent explanations, we find the Claimant was not eligible for either the STEP payment or the PPP bonus. This is because she did not receive high enough PES Scores. The Claimant disputed this during her grievance saying she had received 3s and 4s. Miss Lewis checked an excel spreadsheet of historic PES scores and provided the Claimant’s PES scores to Mr Bailey who dealt with the grievance (512). The Claimant has not challenged this summary. We find it likely that she did not gain a PES score of 4 in the years during which she had lateness problems. On balance, therefore, we find the table of her PES scores to be correct. In 2012: 3; 2013: 2; 2013: 3; 2014: 3; 2015: 3; 2016: 2; 2017: 3. Lateness[23]The Claimant accepts that, in the gaming industry, attending work on time is regarded as important. The cash desk (known as the cage) is a restricted Case Number: 3200390/2019 6 area. This means that the cashier finishing a shift cannot leave until the cashier due to replace them arrives. One cashier’s lateness therefore directly impacts upon other colleagues.[24]The employee handbooks from July 2013 and January 2017 state at paragraph 2.9: ‘Employees are individually responsible for ensuring that they arrive at work early enough to enable them to begin their work at the appointed start time…It is accepted that circumstances outside employees’ control can cause lateness, for example if a traffic accident has caused long delays on the roads. However, a high volume of traffic causing delays that is a normal or regular occurrence, or which can reasonably be anticipated, will not be regarded as a valid reason for an employee’s lateness.’ (235) It advised persistent lateness may result in disciplinary action.[25]R1 had a clocking-in system, known as TMS. The nearest clock-in machine for the cashiers was about 30 seconds to a minute away from the booths where they sat to work.[26]We find that R1 followed this practice in relation to lateness: 26.1. a manager would give an employee a negative file note (‘NFN’) for arriving at work late 3 times in 12 months, unless that person was on a final written warning when a NFN might be given for one further incident of lateness; 26.2. if an employee was 1 minute late for work, they would be docked 15 minutes’ pay; 26.3. from September 2018, as set out in the cash desk newsletter, cashiers were asked to arrive in the cash desk 2-3 minutes before the start of their shift. (R1 might wish to consider the inequity of not paying for this early arrival whereas a 1 minute late arrival resulted in docked pay of 15 minutes.)[27]In her statement and her oral evidence, the Claimant accepted that she was persistently late at times and did not have a good record on timekeeping. Her main problem was that she had to drive to work from Kent and heavy traffic and accidents sometimes led her to be late. She could not afford to take the train.[28]Mrs Joyce described her problem with the Claimant’s timekeeping as her arriving ‘just in time’ which led others to follow her example.[29]We set out below what disciplinary action was taken in relation to the Claimant’s lateness: 29.1. None in 2012; 29.2. in June 2013 a formal warning for 6 lates in 6 months (349); 29.3. on 16 November 2013 a NFN for 4 or 5 lates (393); 29.4. no NFNs or warnings in 2014, 2015; Case Number: 3200390/2019 7 29.5. on 10 June 2016 (i.e. 3 years after first warning, following an NFN) a formal warning for lateness (654); 29.6. on 15 December 2016 a NFN for 3 lates (one for 1 minute); 29.7. on 2 May 2017 a first formal warning for lateness (4); 29.8. on 13 December 2017 a final warning for lateness (one for 1 minute); 29.9. on 21 April 2018 a NFN for 1 incident of lateness of 30 minutes (recorded incorrectly by Mrs Joyce as 45 minutes); 29.10. on 20 June 2018 being investigated for lateness but not disciplined for it: one was an asthma attack and one was 1 minute early. 29.11. In total: 3 formal warnings for lateness and 1 final written warning. The Claimant accepted those warnings and promised to do better. Other Staff Disciplinaries[30]The Claimant was not alone in having a record of warnings. We do not have full information for the other cashiers working during the Claimant’s employment but from the limited material before us we do know that: 30.1. In a management handover document, Mr A Buckleton (who was promoted to supervisor in early 2018) was described as follows: ‘struggles with consistent level of customer service, several final warnings in regards to professional behaviour in the past.’ He also had anger management problems that led to conflict management training. 30.2. Miss Peneva (who was promoted to supervisor in May 2018) had a final warning for conduct issued on 21 March 2017 that expired on 20 March 2018. 30.3. Mr B Smith, who was offered promotion to supervisor in early 2018, was said to struggle ‘with organisational skills’. Training Opportunities[31]The Claimant was keen to progress. She made ‘bright spark’ suggestions. During her employment she received 7 positive file notes commending her for good work: 3 in 2017 and 3 in 2018.[32]In October 2015, she was one of two employees selected to work on a VIP cruise, because of her customer service skills and rapport with customers. The marketing department, rather than her own, selected her for this.[33]As part of her ambition, she sought training opportunities and requested these in her appraisals. Miss Lewis agreed that managers would normally select for training those with the potential for promotion. Case Number: 3200390/2019 8 First Aid Training 2015, 2016.[34]The Claimant put her name forward to do first aid training when it became available in 2015 and 2016. Four white cashiers were selected. From Mrs Joyce’s explanation in the covert recording of November 2018, selection for first aid courses appears to have been informal. We accept the Respondents’ evidence that employees were selected for courses quite near to the time of the course to avoid drop-outs and some selection depended upon who was available on that day. Table Games Refresher Training[35]On 19 May 2017 the Claimant emailed Russell Richardson of the gaming team to ask for a refresher training course or a session on the gaming tables so that she could work in the pit when available. In that email she told him of two days when she was off: the clear implication being those days were days she was available for training. She did not receive any reply. We therefore reject the contention at paragraph 24 of the Response form that the Claimant sought paid training.[36]At some point before his resignation in early 2018, Mr B Smith equally requested refresher training on gaming as he had prior experience like the Claimant. This was agreed to by Russell Richardson and the relevant managers. Mr B Smith did this training in his own time and obtained overtime shifts on the gaming tables when available. Mr B Smith is white and was not in his forties or mid-forties but younger when this opportunity was afforded to him.[37]When this difference in treatment came up in the final grievance, Mr Greenwood stated that a table assessment could be offered to the Claimant on the same basis as it had been to Mr Smith. Conflict Management Training 2018[38]Normally only security, supervisors and managers received conflict management training. But towards the end of 2018 some spare places came up. Mr A Buckleton and Mr B Smith were selected. 38.1. Mr A Buckleton had anger management problems and this was the reason he was selected. 38.2. No reason has been given why Mr B Smith was selected. 38.3. No reason has been given for not providing it to the Claimant. Documents[39]About 6 months before May 2018, in the run up to the new data regulations (GDPR), R1 began to weed out documents from personnel files relating to ‘historic personal data’. This process was ongoing. 39.1. Mr Greenwood confirmed R1 kept documents relating to currently employed staff job applications and promotions. Case Number: 3200390/2019 9 39.2. Some recruitment documents found their way onto the Claimant’s personnel file including the two interview notes in the bundle. 39.3. At paragraph 27 of his witness statement, Mr Greenwood stated that when he looked at the grievance, ‘I read the available previous documents and could understand why other people had been promoted or appointed ahead of her, based on their track records and CVs and age did not come into it, and she didn’t give me any reason to think that age or race did come into it.’ … None of this evidence, if it existed, was before us. Mr Greenwood could not say why the documents he said he had read had not been provided in disclosure. 39.4. Miss Lewis’ evidence was that recruitment documents went into a separate ‘recruitment file’. She did not look for the documents of those successful candidates currently employed. No one in HR or R1 has looked at the successful applicants’ files for the purpose of this claim. Miss Lewis could not explain why not. There is therefore no evidence before us to support the assertions in the Response form as to the merits of the successful candidates (e.g. page 165). 39.5. We have not seen any documentary evidence of criteria for posts except on the advertisement in 2013, see later. 39.6. As to disciplinary records, Mr Greenwood’s evidence was that he looked at the records of other cash desk supervisors (paragraph 19). He asserted in his evidence that their records were not so bad. We have not seen this information and note that in relation to Mr A Buckleton and Miss Peneva it is arguably not correct (see above). 39.7. Mr Greenwood accepted that R1 had the PES scores for all internal candidates for the jobs the Claimant applied for. He accepted PES scores would have been a factor in the appointment decision (along with the interview performance). When asked why R1 had not produced comparative PES scores for the Claimant and the successful candidates to help support his contention that race and age were not factors, he stated, ‘We have chosen not to’. Cash Desk Coach/Supervisor Positions[40]Jobs on the cash desk were difficult for R1 to fill because they are regulated and require the job-holder to be licensed. There is also a fair degree of industry-specific knowledge involved. It was therefore usually internal recruits who succeeded in obtaining the cash desk coach/supervisor role.[41]In 2013 a cash desk coach role was created (later called cash desk supervisor). The Claimant applied for this role in 2013, July 2014 and in November 2014. In each case she was not successful. Case Number: 3200390/2019 10 Cash Desk Coach 2013[42]In 2013 there were three cash desk supervisor vacancies. In July 2013 the Claimant applied and was interviewed for this role, but not appointed.[43]Using the information provided by the Claimant, we find that two of the successful candidates for supervisor were white and between 40-50 years of age, the other younger.[44]The criteria set out in the advertisement were: customer service experience and focus, and 12 months’ cash desk room experience, and a PES Score of 3 or 4.[45]At this point, the Claimant had just received a warning for lateness. This was not referred to when she was told she was not successful. We find, however, it likely that it was considered in assessing her application because timekeeping was important in the industry.[46]There were also two count desk coach vacancies. The count desk is situated behind the cash desk. The Claimant was interviewed but not appointed. We do not know who was successful. At one stage however, Ms T Trezelle-Workes was promoted to count room coach. She is described (at 766) as ‘black Caribbean’.[47]The Claimant was not interviewed for the cash desk manager vacancy, which went to a white employee aged between 30-40. Cash Desk Coach July 2014[48]The Claimant applied again for the cash desk coach role in July 2014. She was interviewed on 8 July 2014 but not appointed. Two candidates were selected to be coaches: both white and between 25-35 years of age (361- 366).[49]The Claimant had no NFNs or warnings in 2014. Her PES Score for the previous year, 2013, was a 2, meaning ‘quality of acceptable customer service is inconsistent…’ (390). Her PES Score at the end of 2014 was a 3. We do not know what her mid-year score was. The interviewers will therefore have known that her last annual PES score was a 2. This was below the advertisement requirements for the job in the previous year. The interviewers will not yet have known her 2013 PES annual score.[50]The interview notes dated 8 July 2014 record ‘good interview calm demeanour good answers and examples given. Working practice does not demonstrate readiness for cage role.’[51]Each month each colleague nominates another colleague for a ‘rising star’ award. Managers moderate the nominations and select the ‘rising star of the month’. In early August 2014 the Claimant was awarded the rising star award from nominations in July 2014. Through the rising star award, colleagues pick out those amongst them whom they regard as going places i.e. having potential for promotion. Cash Desk Coach November 2014 Case Number: 3200390/2019 11[52]Four months later the Claimant had another try for promotion to cash desk coach. Again, she was interviewed on 25 November 2014. The interview notes were retained on her personnel file. The interviewers stated she was able to draw on experience to give examples and identified the ability to do more than she did in the cashier role. But both agreed that she needed to put those answers into practice in her daily work and that she had not been able to identify how the coach role would support the manager. She was not appointed.[53]The successful candidate was white European and between 30-40 years of age.[54]In November 2014 the Claimant had no recorded lateness problems in the form of NFNs or warnings. Other Positions[55]The Claimant tried for Guest Relations Supervisor in 2015, but her application was not acknowledged. By the time she sent a reminder email, it was the day the interviews took place. In this role the Claimant would have supervised staff greeting customers at the entrance. It was also lower paid. The successful candidate had been a cash desk supervisor and was white and between 40-50 years of age.[56]The Claimant applied for Compliance Risk Officer/Collator in February 2016 but was unsuccessful after interview.[57]The Claimant applied for but did not get an interview for Learning and Development Officer in August 2016. The Claimant acknowledged she did not have any qualifications for this role (410).[58]The Claimant applied for Group Collator in September 2016 and was advised she was unsuccessful. The Claimant acknowledged she had no experience in surveillance but relied on her lengthy experience in the industry and her ability to learn.[59]The Claimant applied for a trainee surveillance officer post on 12 December 2016 (415). The interview notes show she gave a good interview but did not get the role because the quality of applications was ‘high with other candidates having skills in IT, report writing and communication above her own’ (417).[60]For those other positions, where we have not set it out expressly, we do not know the age group or race of the successful candidate. December 2017 Cash Desk Supervisor Advertisement[61]A position of cash desk supervisor was advertised internally in late 2018. Only one vacancy was advertised.[62]The Claimant thought that Ms A Speiwak would be deciding the appointment. She did not think she stood a chance because this manager did not like her. She therefore did not apply. Case Number: 3200390/2019 12[63]Ms Speiwak resigned. Mr Malik acted-up and made the appointment decisions.[64]Mr B Smith was chosen for the role but on 1 February 2018 he resigned. On the same day Mr A Buckleton, the next best candidate, was offered the post instead. Promotion of Miss Peneva May 2018[65]The staff handbook (both in 2013 and 2017) stated that vacancies would be advertised unless there was a ‘succession management programme’.[66]Mr Malik and Ms Stephens decided in about April 2018 that a further cash desk supervisor was required. They asked Miss Lewis, of HR, if they could appoint from the December 2017 recruitment round. Miss Lewis agreed.[67]During the grievance, R1 at first suggested there were 2 vacancies for the original advertisement, which was not the case. Miss Lewis’ timeline, at page 463, showed this and that the additional supervisor role was only created 2 months later.[68]What we do not accept is that at the time (or indeed now) Miss Lewis genuinely considered that Miss Peneva could be regarded as on a succession management programme. There is no evidence of this. Miss Peneva was third in the list of five candidates and therefore not an obvious candidate for promotion. And, at the time of the interviews, she had final written warning for conduct. She was not in such a programme. We consider this is an excuse Miss Lewis came up with when the Claimant brought a grievance about the breach of policy in the failure to advertise this vacancy. Ultimately, in her oral evidence, Miss Lewis accepted Miss Peneva was not in a succession management programme.[69]Mr Greenwood said in his evidence that a final written warning would preclude someone from appointment. He later said it would be highly unusual to appoint someone with a final written warning depending on the quality of the candidate. Miss Peneva’s warning would have expired in mid- March 2018, she was therefore on a final warning when interviewed and assessed.[70]Miss Peneva was promoted to cash desk supervisor without the appointment being advertised. She is white and was in her forties when she was appointed. The Claimant was very aggrieved about missing out on this opportunity. Despite her decision in December 2017, we accept that she would have applied for this further vacancy, now that she knew Ms Speiwak was not making the decisions. Of course, all potential applicants for this second vacancy were denied the opportunity to apply. Promotions Generally[71]On the cash desk, no black or black mixed heritage cashier has been promoted. By the time of resignation there were around 20 cashiers and 3 supervisors across different shifts over the 24 hours.[72]Two employees in the 40-50 age group were promoted to cash desk Case Number: 3200390/2019 13 coach. The Claimant thought they were in her age group. This is consistent with her record in the evidence. Miss Peneva was also promoted to supervisor when she was in her forties.[73]Overall, we have heard of only 2 black or black mixed heritage employees gaining promotion to supervisory positions out of a staff of 560. Ms T Trezelle-Workes was promoted to count desk supervisor and Mr Bailey to the very senior managerial position of General Manager Gaming.[74]We have seen R1’s diversity figures for September 2018 that 6% of staff are ‘black British’ with a further 7% being in the category ‘ethnicity other’ which may include people of mixed Black African heritage. There were, in 2018, therefore around 39 black British employees, perhaps more depending on the ‘ethnicity other’ category. First Grievance[75]On 22 May 2018 the Claimant raised a grievance with Miss Lewis about a breach of R1’s Equality and Diversity policy giving no details (491).[76]Mr Bailey was appointed to decide the grievance. It was established the grievance was about the appointment of Miss Peneva without advertisement and the lack of bonus. Mr Bailey met with the Claimant on 22 June 2018 and investigated. He spoke to, Mr Malik the acting cash desk manager. Investigated for Lateness[77]On 21 April 2018, Mrs Joyce issued a NFN to the Claimant for being 45 minutes late. She now accepts the facts were that the Claimant had been 30 minutes late. (Mrs Joyce could have started dismissal proceedings because the Claimant was on a final written warning for lateness but did not do so.)[78]On 20 June 2018, the Claimant had a meeting with Mrs Joyce about recent alleged lateness since receiving a final warning. The Claimant accepted she was 30 minutes late on 10 April 2018. She told Mrs Joyce the reason was caring responsibilities for her grandchild. The second allegation of lateness was for arriving at her desk 1 minute late. The Claimant contended she had clocked in 1 minute early. The final incident concerned 16 June 2018. It was established this was an absence for an asthma attack that had been sanctioned by a manager. On 26 June 2018, Mrs Joyce informed the Claimant she would take no further action on these issues.[79]On balance we do not consider that Mrs Joyce investigated these matters because the Claimant had raised a complaint: at least two of them were substantial lateness that required investigation and Mrs Joyce took no further action, even though the Claimant was on final written warning. Letter of Concern about Sickness[80]On 3 July 2018, Mrs Joyce sent the Claimant a letter of concern in relation to her sickness. Case Number: 3200390/2019 14[81]We accept that Mrs Joyce says this was a standard step and not because the Claimant had raised her grievance. Mrs Joyce accepted in the grievance that it should have been removed from the file because one of the absences was sanctioned by a manager and should have been recorded as a voluntary early leave (591). First Grievance Outcome[82]Mr Bailey’s outcome letter (511) of 4 July 2018 informed the Claimant that: 82.1. HR had been consulted and it was reasonable to use candidates from the earlier exercise because it was within a few months. 82.2. He summarised the Claimant’s salary rises and PES scores and established she had not therefore qualified for the STEP or PPP bonus.[83]The Claimant appealed that decision. She objected to Ms Stephens dealing with it and it was passed to Mr Whitmore, Head of Live Table Gaming. The Claimant objected to him because he was junior to Mr Bailey and therefore was not, she argued, in a position to overturn the decision of his superior. This objection was not accepted.[84]On 7 August 2018 Mr Whitmore sent his outcome letter (553). He acknowledged that the Claimant had acted-up as supervisor ad hoc, as had other colleagues. He did not uphold her appeal, coming to the same conclusions as Mr Bailey. Miss Djurisic approach 9 August 2018[85]Miss Djurisic was seconded to manage the cash desk. She heard from Mrs Joyce that the Claimant was arriving just in time or late. She knew that the Claimant was on a final written warning. She wanted to make it clear to the Claimant that she should not be late.[86]Miss Djurisic spoke to the Claimant in the corridor—a place where people would come and go from the cash desk.[87]Miss Djurisic did not threaten the Claimant with dismissal. She said she did not want to lose the Claimant through lateness.[88]The Claimant said to Miss Djurisic that she was arriving on time. Miss Djurisic responded that she was arriving ‘just in time’. We find this is likely what Mrs Joyce had told her, as it was Mrs Joyce’s problem with the Claimant. We note arriving just in time is not arriving late. Miss Djurisic told the Claimant she should arrive 2-5 mins early for her shift. In this regard, on balance, Miss Djurisic may well have said to the Claimant, in an effort to make her point, that she was ‘taking the piss’.[89]In this effort to make her point, Miss Djurisic came across as more than direct but aggressive and the Claimant felt intimidated by her comments.[90]We find, however, on balance that Miss Djurisic did not say you are a Case Number: 3200390/2019 15 ‘grown-ass’ woman. We do so because this is not recorded in the Claimant’s near-contemporary note of the conversation: a note in which she attempted to record what had been said. This was such an unusual comment that we consider the Claimant would have recorded it at this time, especially if she had been offended by it as she contends. We find Miss Djurisic probably said words the gist of which were: you are a grown woman, come in on time. This was again to make the point to the Claimant that she was sufficiently experienced to know that coming in on time was important.[91]We find on balance that, at this stage, Miss Djurisic did not know that the Claimant had complained about discrimination. We accept her evidence and she had not been interviewed. ACAS EC Certificate[92]On 14 August 2018 the Claimant first contacted ACAS Early Conciliation. She was provided with a certificate on 14 September 2018 when it ended.[93]By this point the Claimant had TU representatives at her grievance meetings. She had also used online resources. She said she understood the ACAS EC period was either to reach a settlement or bring a claim. She had access to Trade Union advice but not legal advice. She had spoken to Citizens Advice at a brief advisory session. But she could not afford a lawyer. Incidents at work[94]On 17 August 2018 Mr A Buckleton, now a supervisor, counted the Claimant down as she was reaching her desk. She had a reputation for arriving at work just on time. We find it likely this was why he was counting her into her desk. While it was likely meant as a joke, we accept the Claimant was upset by it.[95]The Claimant observed other cashiers arriving between 1 minute before and 1 minute after their shift started and not being spoken to.[96]The Claimant felt at this time that she was being watched and micromanaged. She contends that supervisors were standing behind her watching what she was doing. She recalls Miss Peneva pulling her up on how she had packaged some £20 notes but when the Claimant asked if she should do it differently Miss Peneva said not to do so and walked away. (The Claimant referred to this incident in a what’s app discussion with a colleague on 20 August 2018). The Respondents’ witnesses pointed out that the cash desk was a small space and that a supervisor would often stand behind the cashiers at the booths. We consider the Claimant may have become sensitive to management at this point because she knew she had made a complaint but that these incidents were not because she had raised a complaint. They were more likely, in our judgment, the approach of a relatively new supervisor, Miss Peneva. 29 August 2018 – 5 November 2018 Off sick[97]On 29 August 2018 the Claimant was signed off work by her GP with Case Number: 3200390/2019 16 stress. This period of sickness lasted until 5 November 2018.[98]On 18 September 2019 in the cash desk newsletter all cashiers were requested to attend 2-5 minutes before the start of their shift. Second Grievance[99]On 5 October 2018, the Claimant then wrote to Mr Greenwood seeking to appeal Mr Whitmore’s decision on the grievance appeal. On 11 October 2018 Mr Greenwood refused to hear an appeal against the appeal because that was not part of the procedure.[100]However, Mr Greenwood noted that the Claimant had raised new matters in her letter to him and he required these to be investigated by Mr R Smith, Group Operating Director (561). This has been referred to as the second grievance. The Claimant provided further details for it on 11 October 2018.[101]In this second grievance the Claimant alleged that: 101.1. she had been victimised, harassed, and bullied since raising her grievance by Mr Malik, Miss Djurisic and Mrs Joyce: she gave detailed examples; 101.2. she was facing ongoing discrimination in promotion; 101.3. R1 was looking to get rid of her; 101.4. she disagreed with the reasons for Miss Peneva’s promotion.[102]The Claimant accepts that Mr Smith listened to her in his investigation and adopted a careful approach. He met with her on 22 October 2018 in a meeting lasting from 3pm to 6.30pm. He interviewed Miss Djurisic on 24 October 2018 about the matters she raised including the allegation that she had used the ‘grown ass woman’ phrase. He interviewed Mrs Joyce on 29 October 2018. Mrs Joyce said she knew a grievance had been made and the cash desk was small and that the cashiers talked but she did not know what the grievance was about. Mr Smith asked her whether she had harassed the Claimant or treated her differently or bullied her or victimised her (592). Mr Smith interviewed Mr Malik on 31 October 2018. He asked, ‘were you aware that Rita felt you had discriminated against her’. He also asked whether Mr Malik had bullied her. Mr Malik said no and that he was disappointed to hear those allegations. (595) Mr Smith stated in the outcome letter that he also spoke to Mr R Richardson the CSM L&D Gaming who explained how Mr B Smith had been trained and that he had not been approached by any other cashiers ‘for a similar situation’.[103]There is no real dispute that the cash desk was small, and discussions happened and that by this stage (end October 2018), in general terms, Mrs Joyce, Miss Djurisic and employees on the cash desk knew that the Claimant had made a discrimination complaint. Second ACAS Certificate 26 October 2018[104]Meanwhile, on 26 October 2018 the Claimant had contacted ACAS Early Case Number: 3200390/2019 17 Conciliation again. A certificate was provided on 16 November 2018, the day after Mr Smith’s outcome letter see below. Return to Work 5 November 2018[105]On 5 November 2018, the Claimant returned to work and had a return to work interview with Miss Djurisic. The Claimant told her that the GP had recommended a phased return, but Miss Djurisic established there was no paperwork to support this and she asked the Claimant to obtain the necessary paperwork from her GP. Once it was forthcoming a phased return was allowed.[106]We find Miss Djurisic has a direct approach to management and this is the approach she adopted here. She was happy that the Claimant was back because the team was short-staffed. She was also relatively distant from the cash desk team.[107]We make the following findings about the Claimant’s return to work: 107.1. On day 1 she likely was ignored by her by her two colleagues and Mrs Joyce merely responded to her greeting. But Mr Buckleton did not ignore her. 107.2. Mrs Joyce did not greet her with any more than an ‘alright’ on day one because of the grievance harassment bullying allegations made. 107.3. Overall the atmosphere was initially uncomfortable for all. The Claimant was also quieter than usual. 107.4. However this frosty atmosphere soon melted, and cash desk workers reverted to relatively friendly communication. We rely on the Claimant’s covert recording of 27 November 2018 as evidence of this. 107.5. On balance therefore we do not agree either that the Claimant was shunned for days nor that she was not speaking to her colleagues. 107.6. Miss Djurisic was a distanced manager, as was her usual approach. Second Grievance Outcome Smith[108]Mr Smith sent the Claimant his detailed outcome letter on 15 November 2018. He rejected the Claimant’s grievance giving reasons for each issue.[109]The Claimant appealed the outcome of the second grievance by letter of 20 November 2018. Mr Greenwood Appeal Meeting 28 November 2018[110]Mr Greenwood was employed by Aspers Group company, but he had authority to hold grievances for R1. He read the documents from Mr Case Number: 3200390/2019 18 Smith’s investigation and his outcome letter.[111]On 28 November 2018 Mr Greenwood held a meeting with the Claimant and her TU representative. Miss Lewis also attended.[112]Mr Greenwood informed the Claimant that he did not consider her discrimination claim was substantiated.[113]Mr Greenwood had noted there were two new complaints in the Claimant’s appeal letter, points 12 and 13, about matters that had occurred since the return to work on 5 November. Mr Greenwood did not investigate these apart from asking the Claimant about them. Point 12 alleged continued harassment, bullying, and unprofessional behaviour on her return to work. When asked about it at the meeting she referred to being ignored by Mrs Joyce and two colleagues on the first day. And Mrs Joyce only saying ‘yeah alright’ in response to her greeting. She told Mr Greenwood that this was very different behaviour than before her grievance where one of her colleagues would hug her and have a pet name for her. He expressed the view it was unsurprising if colleagues were not as friendly towards someone who had made a complaint of discrimination about them. She also told him that Miss Djurisic had demanded written proof of her GP advice on a phased return. He said that this was normal practice.[114]He pointed out what he called ‘the elephant in the room’ that the Claimant was on a final written warning for lateness. He considered that this precluded her promotion. The Claimant said she had never been informed about this in previous job application feedback.[115]On games table training, the Claimant told Mr Greenwood, in response to Mr Smith’s investigation, that she had asked Mr B Smith how he had got the training. She spoke to Mr Whitmore and, on his direction, asked Mr Richardson by email for the same training, but she did not receive a response. Mr Greenwood indicated he would take that away and have a look at it. He did not do so, despite noting to Miss Lewis, in a break, that it was ‘a bit interesting’ (807).[116]Mr Greenwood accused the Claimant of bringing a tribunal claim. There followed an ‘oh yes you did; oh no I didn’t’ exchange between them, until Miss Lewis corrected Mr Greenwood.[117]We find that the Claimant did not agree not to use the ‘discrimination’ word during this meeting. In fact, Mr Greenwood pushed her into not using that word and pressured the TU representative not to do so. When, later in the meeting, the Claimant referred to what had happened as discrimination, Mr Greenwood intervened warning her that she was ‘using the d word’ again. He made it clear that he did not wish to hear any further argument that she had been discriminated against.[118]At the end of the meeting, Mr Greenwood told the Claimant that if she made any further discrimination complaints that were not supported with evidence then the company might take a different approach. The recording transcript records him as saying: ‘please don’t take this as a threat or as a warning, just a bit of advice, you’ve made a number of serious allegations … most if not all of these things I don’t believe are substantiated. If you Case Number: 3200390/2019 19 make those kinds of allegations in the future, they need to be backed up and supported with evidence because, it’s not a threat, but if there’s a belief that an employee has made up allegations against other employees whether they’re colleagues or senior people which, … can cause stress and upset for other people. The company might take a different view and treat what you’ve put in writing in a different way.’ Having considered his oral evidence and the context, we unanimously find, ‘different way’, it was clear that Mr Greenwood was referring to disciplinary action. Although he repeated that his words were not a threat, we find it was plain they were in fact a threat to the Claimant. His aim was to make it clear to the Claimant that she might be disciplined for a discrimination complaint the next time if R1 took the same view that it was not substantiated. This was also his aim during the meeting when he discouraged the use of the ‘d[iscrimination] word’.[119]Overall, having listened to the recording of the meeting, we find that Mr Greenwood was not aggressive but was condescending towards the Claimant.[120]The Claimant made a covert recording of the meeting with Mr Greenwood. During private breaks: 120.1. Mr Greenwood said to Miss Lewis ‘One of the benefits of getting older I keep getting left out I’ve been doing … I’ve been doing this. It’s like Danny La Rue … I’ve been doing pantomime for 500 years!’ He used a whimpering voice in this exchange. Unanimously we do not accept Mr Greenwood’s explanation that he was referring to himself in this exchange. The statement ‘I keep getting left out’ does not make sense if he was referring to himself. He was the HR director and there was no context for him being left out. This was more obviously a reference to the Claimant’s complaint that she had been doing the job for years but kept getting left out of training and promotions. Although this comment was not directed at the Claimant, it clearly showed that Mr Greenwood’s attitude was to mock her complaint of agerelated discrimination. 120.2. Miss Lewis stated privately to Mr Greenwood she thought the complaints malicious and that the Claimant wanted money. Mr Greenwood did not agree with this. 120.3. We agree with the Claimant that Miss Lewis in the meeting was more than a scribe but gave her opinion to Mr Greenwood as can be seen in these private exchanges.[121]Mr Greenwood did not uphold the appeal and confirmed the outcome of the second grievance in a letter of 14 December 2018. It does not appear from his letter that he investigated whether the Claimant had contacted Mr Richardson, but he informed her that ‘for fairness’ she could be offered games table training like Mr Smith (670). He stated, ‘I think it would be sensible for a dealer assessment to be undertaken to evaluate your current performance level and a training plan created accordingly’. He agreed in his oral evidence that this was known as a ‘table assessment’: a test of Case Number: 3200390/2019 20 dealer skills at the gaming table. Further Issues at Work Chebetlova Reprimand[122]Mrs Joyce did sheepishly reprimand Ms Chebetlova for being a minute late. She had changed her approach to reprimanding staff in public because of the Claimant’s complaint. She was awkward in doing so because Ms Chebetlova was not normally late.[123]The Claimant’s phased return ended on about 5 December 2018. Short Changeover Shifts[124]Mrs Joyce gave the Claimant 4 short changeover shifts in the December 2018 rota. This was more than other colleagues. The Claimant would not have expected more than 2 in this month. A short changeover shift means that the next shift is 11 to 12 hours after the end of the first. This gives little time to travel home, rest and return to work. They are disliked by cashiers. 124.1. The majority of the Tribunal (Ms Alford and EJ Moor) have reached the conclusion that this was a subtle way of punishing the Claimant for having complained. They take into account that the allocation of 4 shifts was twice what was normally expected and that these shifts were disliked. They weigh in the balance that Mrs Joyce was plainly upset by the discrimination complaint when asked about it at interview and likely took offence. Although Mrs Joyce gave the Claimant a holiday on her birthday in December, in their view this was because holidays were normally given to workers on their birthday. One of the reasons given to us for this rota was that the Claimant was on a phased return, which was not the case after 5 December. In their judgment, a partly incorrect explanation makes it less reliable and gives rise to the inference that the complaint was the reason for this treatment. 124.2. Mrs Legg considers that this shift allocation was not a deliberate punishment. She weighs more heavily that Mrs Joyce gave the Claimant two days off on her birthday in mid- December when holidays were not normally given in December and considers therefore that the 4 shifts came about because of the difficulty of organising the rota. She also weighs heavily that the covert recording of late November shows that Mrs Joyce was accommodating to the Claimant about training and considers on balance that she was not therefore likely to have punished the Claimant in her allocation of shifts. Handover[125]On 19 and 20 December 2018, the Claimant was not given handover information when a supervisor was not present. It was passed to more junior employees. Case Number: 3200390/2019 21 125.1. The majority of the Tribunal (Ms Alford and EJ Moor) consider, on balance, that this was because of the Claimant’s discrimination complaint. It was a personal complaint against Mrs Joyce at least and colleagues likely knew about by then and understood that Mrs Joyce was upset by it. They consider the weightiest factor here is the prior practice that the Claimant was given the handover information if she was in work. This was because she was the longest-serving and most experienced. It was therefore unusual and undermining of her not to be given this information. This was a change in practice that, to them, was marked and odd. The inference arose therefore that colleagues were subtly leaving her out because she had made a discrimination complaint against one of their own. 125.2. Mrs Legg weighs most heavily the covert recording of late November in which staff appeared to be getting on amicably. She considers that not being provided with the handover information on only two days is insufficient a change from which to draw any inference. Drinks[126]On 19 and 20 December 2018, all the other colleagues working in the cash desk, two cashiers, Miss Peneva and Mrs Joyce, discussed going out for a drink at Las Iguanas. The Claimant was the only one in the room not included. This was not a formally organised works drink, but we all consider it was a drink among work colleagues to which the Claimant would normally have been invited. We all agree it was at the very least insensitive to discuss the arrangements in front of her when she was not invited. We all conclude that this exclusion was because the Claimant had complained of discrimination. While working relationships were relatively amicable, the team did not wish to socialise with someone who had complained of discrimination against Mrs Joyce personally. This was a way to make their displeasure over the complaint felt. Difficult customer[127]On 21 December 2018 the Claimant dealt with a difficult customer at the cash desk. She was used to having to do so. He may well have been abusive by raising his voice and arguing.[128]We accept the evidence of Miss Peneva and Mrs Joyce that they observed this but did not interfere because to do so could have exacerbated the situation and undermined the Claimant in front of the customer. This was their usual practice. Miss Peneva told us, and we accept, that the Claimant was really good at calming down difficult customers, and she did so on this occasion. Miss Peneva kept an eye on the situation to make sure she could see any sign, like eye contact, from the Claimant that she needed help. The Claimant did not give such a sign. It was not until after another customer that the exchange took its toll and the Claimant became upset. She left the cash desk in tears. Mrs Joyce, upon hearing this, went to her, and asked if there was anything she needed. The Claimant asked to go home early and Mrs Joyce agreed. Case Number: 3200390/2019 22[129]We are unanimous that on balance Mrs Joyce and Miss Peneva offered the right level of support here. While in the past Mrs Joyce might have been friendlier towards the Claimant when she went to see her, she nevertheless acted appropriately by going to see her, by asking her what help she wanted and by allowing her to go home. Shredding[130]Miss Peneva directed that the Claimant should do some shredding on 21 December 2021. We considered whether this was another subtle way of punishing the Claimant by giving her a menial task. But, on balance, we all agree that this instruction to shred was not because the Claimant had made a complaint. We take into account the following matters: shredding had to be done within a certain time; there was a fair amount to do; everyone did shredding including managers; and this was just one occasion on which the Claimant was asked to shred. The Claimant objected to being asked to do shredding in her witness statement, but changed this in her oral evidence to objecting to the time when she was asked. The Claimant was not clear in her evidence that they were busy at the time: she said ‘ideally’ we were busy, which was not a memory of being busy. It was not clearly, therefore, an inappropriate time to be instructed to do so. Sickness Absence and Return to Work Discussions[131]From 29 December 2018 the Claimant was off sick from work with stress.[132]On 14 February 2019 the Claimant presented a Tribunal claim for age and race discrimination and victimisation and harassment.[133]On 18 March 2019 she attended an occupational health meeting. On 25 March 2019 she attended a welfare meeting off site with Miss Lewis. By this time R1 was aware of the claim. In the light of the tribunal claim and prior grievance, they discussed the arrangements for the return to work. The Claimant suggested other members of staff be trained on bullying and harassment This was rejected because Miss Lewis considered the grievance closed and no member of staff had been found guilty of such behaviour. She referred to the polices that existed at work in equal opportunities and conduct and the training of managers in mental health.[134]On 2 April 2019, a second welfare meeting was held at short notice because of the expiry of the Claimant’s fit note. The Claimant was accompanied. Miss Lewis confirmed a 12-week phased return. She proposed a return on 11 April and that the Claimant was paid ‘emergency leave’ for the period not covered by a fit note. Two options were discussed: either a return to the original role or a new role on the gaming tables. This latter role would have meant the Claimant did not have to work with those she had complained about.[135]For a return to work at the cash desk, Miss Lewis proposed that the cash desk team would be reminded of the importance of working together professionally. The Claimant would be provided with a buddy who could be a manager in another department. Miss Lewis referred to the lateness issue and the prior warning. She did so to explain that managers would Case Number: 3200390/2019 23 still have to manage lateness.[136]For alternative work at the gaming tables, Miss Lewis proposed that the Claimant would do 6 weeks of training. This was an insult to the Claimant who had a great deal of experience on gaming tables, albeit some 7 years before. She accepts that she would have had to learn the particular approach of R1, but we accept her evidence that this would not have taken anything like 6 weeks. She contends that normal training would start with a table assessment (as Mr Greenwood had proposed in the grievance outcome); or the kind of training Mr B Smith received which took no more than a few hours; or, at the most, the 2 weeks of training that R1 admits would be provided to an experienced croupier starting work with R1.[137]The Claimant wrote to Miss Lewis 5 April 2019. She explained how she felt about the proposed 6 weeks’ training. She told Miss Lewis she considered it to be insulting. She also made the point clearly that it would be treating her differently from both Mr B Smith and a new starter with her experience[138]In Miss Lewis’ reply of 9 April 2019 she refused to adjust the length of the training period. She relied on there being a phased return (but did not explain how the standard 2 weeks for a new starter became 6 weeks even with a phased return) and she tried to distinguish Mr B Smith’s situation.[139]Why, then, did Miss Lewis state that the alternative role would start with 6 weeks of training? In her evidence to us she said if it turned out it was not necessary it could have been reduced. But this is not what she told the Claimant in her reply. Miss Lewis ignored the two plainly comparable situations. As a matter of fact, Mr B Smith could not be distinguished from the Claimant: he too was a current cashier with experience. In the past, the Claimant’s request had also been for unpaid training. As a matter of fact, the new starter with experience, was probably less of a comparator, having no experience with R1 at all. But even if their 2 weeks of training had been applied, a phased return would not have turned it into 6 weeks. We do not accept Miss Lewis’s evidence that she was trying to ensure the training was a success. If this had been the case we consider, on hearing the Claimant’s objections, she would have altered her initial proposal along the lines of her oral evidence to us: starting with Mr Greenwood’s proposal of a table assessment and seeing how the Claimant went. She told Mr Greenwood she thought the complaint malicious. We have concluded, on balance, that Miss Lewis used the training as an obstacle to the Claimant’s return because she thought the Claimant had made a malicious complaint. Resignation On 11 April 2019 the Claimant resigned by letter.[141]We find her reasons for doing so from her letter were: 141.1. she felt the 6 week training course for the table games option was demeaning, belittling, and insulting and was an act of discrimination in itself compared to the treatment of Mr B Smith who had only a few hours of training. It was the equivalent to a new trainee. A new starter only received 2 weeks’ induction. A Case Number: 3200390/2019 24 table assessment test would have been appropriate to determine ability, before imposing 6 weeks’ training; 141.2. she did not consider it was Miss Lewis’ intention to look into the recent issues, by which we find she meant point 12 of her last grievance and her contention that she had been victimised on the cash desk because Miss Lewis had reiterated that the matter was closed; 141.3. she considered there was ‘discriminatory treatment’ from ‘cash desk colleagues’ which had continued and gave her no confidence in returning. This was the treatment she complained about since her grievance that we have set out above; 141.4. no assurance had been given about training the individuals implicated and her request that there be bullying and harassment training within the company had not been acknowledged.[142]In addition, while not referred to expressly in her resignation letter, we unanimously find that the alleged discrimination in promotions was also in the Claimant’s mind when she resigned. We rely on her oral evidence in cross-examination where she referred to the start of her considering that her employment was becoming ‘intolerable’ was when she ‘realised’ she was being discriminated against in promotions and submitted her grievance.[143]We also find that the Claimant very likely had in mind Mr Greenwood’s approach to her grievance given that it was so striking: his threat not to bring further complaints of discrimination and his suppression of the ‘discrimination’ word during the meeting. In her claim form of 14 February she refers to his indirect threat of counter-action if she went to a tribunal and that she found his approach bullying, intimidating, and harassing (paragraph 63). And, at paragraph 93 of her Amended Claim form, she contended that she resigned in response to the conduct set out. We therefore find Mr Greenwood’s conduct at the meeting was also one of the matters that caused her to lose confidence. Holiday[144]All agree the holiday year was the calendar year. The Claimant was paid for her accrued but untaken holiday for 2019. She claims 4 days in respect of 2018 when she had booked holiday but was sick. She agreed in her evidence that she had taken 4 weeks’ paid holiday in 2018 in addition to these four days. Submissions[145]Both representatives gave us succinct and helpful oral submissions. We summarise their main points below.[146]Mr McFarlane, for all Respondents, started at the end and argued that there was no constructive discriminatory dismissal here. His main argument was that nothing had happened after the last incident at work on Case Number: 3200390/2019 25 21 December 2018 which amounted to a breach of contract or last straw. He argued that by continuing to receive pay until early April, that was too much of a delay and was affirmation. The welfare meetings were to achieve a successful return to work while being consistent with the grievance outcomes. The Claimant’s objection to the training offered was inconsistent with her claim in the past that she had not received sufficient training. This was not a last straw.[147]Mr McFarlane acknowledged that Mr Greenwood’s handling of the grievance could be criticised but what he had said in the covert recordings was not directed at the Claimant. His aim was to find a successful way forward. The Claimants TU representative appeared to agree this was not a discrimination case.[148]On the direct discrimination case, the logic of the Claimant’s case on promotion had to be that there was a policy or practice of discrimination and she had not shown that here. The appointment of Miss Peneva was in relation to a job round for which the Claimant had not applied. This decision could not be said to have been to ensure the Claimant failed. He relied on the Claimant’s poor timekeeping as the more obvious explanation for why in the past she had not been successful. He made detailed submissions on why the particular complaints were not race or age related.[149]In relation to victimisation he asked us to weigh heavily the covert recording in November which showed staff relationships were amicable despite the investigation of the grievance. The Claimant was sensitive to matters that arose at work because she had raised a grievance.[150]He argued that much of the claim was out of time and could not be revived by a new ACAS EC certificate. There was no explanation for any delay and during much of the period the Claimant had access to TU advice. The weeding of the personnel files by R1 meant that they were prejudiced in not having available all documents. He acknowledged that the dismissal claim was in time.[151]Mr Starcevic for the Claimant gathered the direct discrimination claim into 4 strands: bonus/incentives; promotions; training; and treatment in lateness and absence.[152]He argued there was a pattern here of failure to succeed although the Claimant was clearly very experienced and long-serving and paid higher to recognise that. She was rejected for promotion even when voted a ‘rising star’. Her lateness had not been referred to as a problem in feedback and anyway others with chequered careers had been promoted. It was remarkable there were no black supervisors in the cash desk. The only similar promotion was that of Ms Trezelle-Workes, which did not fit with the demographics produced. When there was a promotion to someone in authority this was consistently a white, younger person. He reminded us that evidence of race or age discrimination is usually not obvious and it was a question of what inference could be drawn from the facts. He argued the facts here allowed us to draw such an inference of a arguable case which led to the burden of proof being reversed. R1, he contended, could not then show that in this case the decisions made were Case Number: 3200390/2019 26 in no way tainted with race or age. Very often no explanation had been given. R1 had not even provided us with the CVs of the successful candidates.[153]On the time point Mr Starcevic relied on the direct discrimination complaint here being about a ‘state of affairs’ and as such a continuing act. There did not have to be an express policy. It was right for the Claimant to pursue her complaints internally before bringing a claim. From then on R1 could have preserved documents and there were clearly some in existence it had simply chosen not to produce.[154]On victimisation he argued that Mr Greenwood’s approach clearly was to threaten the Claimant. We could rely on his tone, his rubbishing of the Claimant’s genuine complaints. As in St Helens (see below), so here Mr Greenwood had crossed the line from an appropriate expression of his view that the grievance did not succeed to inappropriate pressure and threats. The manner in which the grievance was handled could still amount to a detriment even if the outcome was correct, he referred to Deer (see below).[155]He argued there was a discernible change in attitude towards the Claimant after her grievances which was because of the grievance. This was a closed environment: the team was likely to know.[156]On harassment he repeated, effectively, his submissions and drew our attention in particular to the complaint against Miss Djurisic and Mr Greenwood’s mocking of age.[157]On unfair dismissal he went through the statutory test and argued there were two last straws here: the 6 weeks’ training and the decision not to coach staff on bullying even when the continuing claim had not been investigated. Nor was there any affirmation here: the Claimant with the Respondent was still discussing her options. It was not an affirmation to see what the Respondent could propose post-grievance. Law Unfair Constructive Dismissal
[1]The Claimant makes an application for a reconsideration seeking to vary the Judgment to add a second finding of fact at paragraph 120.1. She seeks an express finding that Mr Greenwood said, during a private break in the meeting of 28 November 2018: ‘Cause I’m 75 years old and I’ve been doing this for 3000 years (whimpering mimicking voice)’. I shall refer to this as the 'second comment'.[2]The Claimant contends this finding of fact should be set out in the Judgment expressly because it is relevant to remedy.[3]The majority of the Tribunal took into account Mr Greenwood's 'mocking of her privately' at this break in the meeting in deciding that the reason he subject her to detriments was that she had made an age-related complaint, see paragraph 238 of the Reasons.[4]The minority member took into account this mocking to decide his conduct was also direct age and race discrimination, see paragraph 239 of the[5]It is not clear from the application whether the Claimant wishes the judgment on direct discrimination and/or harassment to be reconsidered. I shall assume that she does so. Case Number: 3200390/2019 2 Decision on Claimant's Application
Findings of Fact
[6]The Respondent is correct that I must first consider, under Rule 72(1) of the Tribunal Rules 2013, whether there is a reasonable prospect of the Judgment being varied.[7]In its deliberations over 3 days the Tribunal was well aware of both the first and second comments made by Mr Greenwood privately in a break of the 28 November meeting. There was no dispute that they were said. The only factual dispute concerned whether they were about Mr Greenwood or the Claimant. We decided that they were about the Claimant. We referred to the first comment in our findings to explain our reasoning but did not expressly to the second comment. That the second comment was in our minds as we deliberated can be seen on the face of the judgment by reference to 'mocking' in general at paragraph 238 and the use of the plural 'remarks' at paragraph 308.[8]Those comments were part of the evidence that led to the majority deciding that Mr Greenwood's antipathy was about the age-related complaint. But the comments themselves were not the act of victimisation found. It is not therefore necessary for the consideration of remedy to require them to be set out expressly in the findings of fact.[9]The Claimant's application may be for a reconsideration of the direct discrimination and/or the harassment decision on the basis that the second comment was not set out expressly. This application has no reasonable prospect of success. This is because both comments were well in our minds as the full Tribunal deliberated. There is no need for the Tribunal to set out absolutely every matter in its findings of fact, especially where the fact that both comments were made is undisputed. The Tribunal, in its reasoning, referred to 'mockery' in general. There is no reasonable prospect therefore of the judgment being varied.[10]The Claimant's application is therefore dismissed. Employment Judge Moor 25 October 2021 Case Number: 3200390/2019 1 RM EMPLOYMENT TRIBUNALS Claimant: Ms R Leher Respondents:(1) Aspers (Stratford City) Limited(2) Mrs K Joyce (neé Greenyer)(3) Mr T Greenwood(4) Miss D Peneva Heard at: East London Hearing Centre (in public, by video) On: 10 – 13 August 2021 30 August, 1 and 6 September 2021 (in chambers) Before: Employment Judge Moor Members: Ms P Alford Mrs M Legg Representation Claimant: Mr P Starcevic, counsel Respondents: Mr E McFarlane, consultant CORRECTED JUDGMENT It is the unanimous judgment of the Tribunal that:[1]The complaint of unfair dismissal is well-founded.[2]The dismissal was an act of unlawful victimisation.[3]The failure to respond to the request for games table refresher training was direct race and age discrimination.[4]It is just and equitable to extend time for the complaint of direct discrimination in relation to games table refresher training.[5]Save, in respect of one issue failing by majority decision, the remaining claims of direct race or age discrimination fail.[6]The Third Respondent on behalf of the First Respondent, unlawfully victimised the Claimant by: Case Number: 3200390/2019 2a. Failing to investigate her allegation that she had been victimised or harassed after her return to work from 5 November 2018;b. In his approach at the grievance appeal hearing of 28 November 2018 by deliberately discouraging the Claimant from arguing that what had happened to her was discrimination; and by threatening the Claimant in relation to further discrimination
complaints.
[7]The First Respondent unlawfully victimised the Claimant by requiring her to undertake 6 weeks’ training in the proposed alternative role in the gaming team.[8]The Second Respondent, and the Fourth Respondent unlawfully victimised the Claimant by excluding her from discussions about after-work drinks.[9]Except for the claims of unlawful victimisation that have succeeded by majority (see below), the remaining claims of victimisation fail.[10]The claims of unlawful harassment fail (in one respect by majority).[11]The holiday pay claim fails. It is the judgment of the Tribunal by majority that:[12]The dismissal was not an act of direct race or age discrimination.[13]The Second Respondent unlawfully victimised the Claimant by giving her 4 short changeover shifts in December 2018.[14]The First Respondent unlawfully victimised the Claimant by failing to provide her with handover information on 19 and 20 December 2018.[15]The claims of direct race and age discrimination fail in relation to the failure of Mr Greenwood to investigate and his approach at the grievance appeal hearing.[16]The claims of harassment relating to race and age fail in relation to the failure of Mr Greenwood to investigate and his approach at the grievance appeal hearing It is the minority judgment of Ms Alford that:[17]The dismissal was an act of direct race and age discrimination.[18]The claims of direct race and age discrimination succeed in relation to the failure of Mr Greenwood to investigate and his approach at the grievance hearing of 28 November 2018.[19]The claims of harassment relating to race and age succeed in relation to Mr Greenwood’s conduct towards the Claimant during the grievance hearing of 28 November 2018. Case Number: 3200390/2019 3 It is the minority judgment of Mrs Legg that:[20]The Claimant was not unlawfully victimised by:a. the Second Respondent giving her 4 short changeover shifts in December 2018;b. the failure to provide handover information to her on 19 and 20 December 2018.[1]The Claimant resigned from her employment with the First Respondent (‘R1’) in circumstances she claims were direct race and/or age discrimination, victimisation, harassment relating to race and/or age and constructive unfair dismissal. She also makes a claim for outstanding holiday pay.[2]The hearing was originally listed for what became the first week of the national lockdown in March 2020. It was unfortunately postponed for a further 18 months. We thank the parties for undertaking a remote hearing by video. During the hearing different participants encountered the occasional connection difficulty, but we ensured an effective hearing took place by pausing and, if necessary, recapping any evidence missed. Issues[3]The claim form was presented on 14 February 2019. At that point the Claimant was still employed. The claim alleged direct age and race discrimination, victimisation and harassment relating to race and age. The Claimant resigned on 11 April 2019, and on 17 June 2019 she submitted an amended claim making additional discrimination and victimisation claims and an unfair constructive dismissal claim including that the dismissal was discrimination (paragraph 100). EJ Burgher allowed the claim to be amended at the Preliminary Hearing on 24 May 2019. The Claimant provided further particulars by order. Both the amended claim form and the amended response form on behalf of all Respondents well set out the issues in the case. EJ Burgher drew up a list of issues appended to his Case Management Order. Mr Starcevic helpfully provided a List of Factual Allegations identifying the claim to which each related. We were also assisted with a chronology, cast list and glossary. The age group relied on is the mid-forties and over.[4]We agreed to deal with liability only at this stage.[5]The holiday pay claim was not particularised. By the end of the hearing, it was established that it related to non-payment in respect of 4 days of booked holiday in the holiday year 2018 ultimately taken as sickness. The Claimant contended that European law allowed these to be carried over. R1 contended that the days claimed were after the 4 weeks’ holiday under Regulation 13 of the Working Time Regulations 1998 (derived from the relevant European Directive) and therefore could not be carried over. It Case Number: 3200390/2019 4 was agreed that holiday accrued but untaken in the holiday year 2019 had been paid. Findings of Fact[6]We heard the evidence of the Claimant, the third Respondent, Mr T Greenwood, group HR director, the second Respondent, Mrs K Joyce (neé Greenyer), the fourth Respondent, cash desk supervisor, Miss D Peneva, Miss L Lewis, HR manager, and Miss C Djurisic, gaming customer service manager, seconded to manage the cash desk. We read the documents referred to us in the evidence. In reaching findings of fact we applied the balance of probabilities test by asking ourselves what was more likely to have occurred. We make the following findings of fact.[7]R1 runs a ‘super casino’ at Stratford Westfield Centre. It is open 24 hours a day, 364 days a year. It employs around 560 staff. R1 belongs to the Aspers Group of companies.[8]The Claimant is of mixed black African heritage. At the time she started with R1, she was nearly 41 years of age. She had about 22 years’ experience of working in the gaming industry, including on cash desks and on gaming tables as a dealer at high-end London casinos. She also had managed a betting shop.[9]The Claimant began work on 21 November 2011 for R1 as a cashier on the cash desk. She was initially paid £23,500. This was more than any other cashier because of her greater experience. Thus, from the start of her employment, she was the most experienced cashier on the cash desk. In that sense she was a senior cashier, though this was not a job title.[10]By the time she resigned on 11 April 2019, she was the longest serving cashier. She had seen numerous cash desk colleagues promoted. None of them were black or of mixed black heritage. All of them were younger than her, but two had been promoted in the 40-50 age bracket.[11]During her employment, if a shift changed and there was no supervisor present, and if she was working, the Claimant was given the task of handover to the next shift. She would inform the next shift what the next supervisor needed to know. This was not a formal arrangement. We find it more likely than not that the Claimant was given this task because she was the most experienced cashier on shift when she worked.[12]From time to time the Claimant covered for the supervisor role. She also trained new and junior cashiers.[13]Like many on the cash desk the Claimant volunteered for overtime.[14]The Claimant actively sought out training opportunities. Salary Increase 2012[15]In early 2012, management decided to award gaming and cash desk staff a £1000 salary increase to recognise their contribution to the successful opening of the casino. Case Number: 3200390/2019 5[16]The Claimant was sent a letter in which she was purportedly awarded this increase, but her salary in fact remained the same at £23,500. As far as she is aware, she was the only person this happened to. At the time, there were other black cashiers and others with mixed black heritage and other cashiers of her age group, and she does not think this happened to them.[17]Mr Greenwood gave differing explanations for this salary increase. At paragraph 7 of his statement, he suggested that this increase was to make up some salaries to their market equivalent but not the Claimant’s because she was on the top of the salary band. Whereas in his oral evidence he recalled that the £1000 increase was general and paid to the workforce after a successful opening. He accepted the Claimant was involved in the successful opening and could not explain why she was not awarded the increase. After the Claimant immediately complained and persisted over several months, she was ultimately granted the £1000 salary increase in July 2012. We find this was an increase applied across the board and no reliable explanation has been given for why the Claimant did not receive the increase initially. STEP and PPP Bonuses from 2016[18]In July 2016, R1 introduced a bonus scheme. It had two parts both dependent on appraisal scores, known as Performance Enhancement System (‘PES’) scores (406).[19]First, the STEP programme identified high achievers. If an employee received 3 PES scores of 4 in their last three 6-monthly appraisals, then they would receive a salary increase of £1000.[20]Second, for a Personal Performance Payment (PPP) bonus, the employee’s two previous PES scores had to be at least a 3 and a 4.[21]Mrs Joyce told the Claimant that she was excluded from the STEP incentive because her salary exceeded ‘the bracket allocated’ (425). She says she was told by a manager to tell the Claimant this, though she does not remember by whom. Mrs Joyce accepted in evidence the Claimant’s salary was not in fact above the salary band.[22]On balance, despite the Respondents’ inconsistent explanations, we find the Claimant was not eligible for either the STEP payment or the PPP bonus. This is because she did not receive high enough PES Scores. The Claimant disputed this during her grievance saying she had received 3s and 4s. Miss Lewis checked an excel spreadsheet of historic PES scores and provided the Claimant’s PES scores to Mr Bailey who dealt with the grievance (512). The Claimant has not challenged this summary. We find it likely that she did not gain a PES score of 4 in the years during which she had lateness problems. On balance, therefore, we find the table of her PES scores to be correct. In 2012: 3; 2013: 2; 2013: 3; 2014: 3; 2015: 3; 2016: 2; 2017: 3. Lateness[23]The Claimant accepts that, in the gaming industry, attending work on time is regarded as important. The cash desk (known as the cage) is a restricted Case Number: 3200390/2019 6 area. This means that the cashier finishing a shift cannot leave until the cashier due to replace them arrives. One cashier’s lateness therefore directly impacts upon other colleagues.[24]The employee handbooks from July 2013 and January 2017 state at paragraph 2.9: ‘Employees are individually responsible for ensuring that they arrive at work early enough to enable them to begin their work at the appointed start time…It is accepted that circumstances outside employees’ control can cause lateness, for example if a traffic accident has caused long delays on the roads. However, a high volume of traffic causing delays that is a normal or regular occurrence, or which can reasonably be anticipated, will not be regarded as a valid reason for an employee’s lateness.’ (235) It advised persistent lateness may result in disciplinary action.[25]R1 had a clocking-in system, known as TMS. The nearest clock-in machine for the cashiers was about 30 seconds to a minute away from the booths where they sat to work.[26]We find that R1 followed this practice in relation to lateness: 26.1. a manager would give an employee a negative file note (‘NFN’) for arriving at work late 3 times in 12 months, unless that person was on a final written warning when a NFN might be given for one further incident of lateness; 26.2. if an employee was 1 minute late for work, they would be docked 15 minutes’ pay; 26.3. from September 2018, as set out in the cash desk newsletter, cashiers were asked to arrive in the cash desk 2-3 minutes before the start of their shift. (R1 might wish to consider the inequity of not paying for this early arrival whereas a 1 minute late arrival resulted in docked pay of 15 minutes.)[27]In her statement and her oral evidence, the Claimant accepted that she was persistently late at times and did not have a good record on timekeeping. Her main problem was that she had to drive to work from Kent and heavy traffic and accidents sometimes led her to be late. She could not afford to take the train.[28]Mrs Joyce described her problem with the Claimant’s timekeeping as her arriving ‘just in time’ which led others to follow her example.[29]We set out below what disciplinary action was taken in relation to the Claimant’s lateness: 29.1. None in 2012; 29.2. in June 2013 a formal warning for 6 lates in 6 months (349); 29.3. on 16 November 2013 a NFN for 4 or 5 lates (393); 29.4. no NFNs or warnings in 2014, 2015; Case Number: 3200390/2019 7 29.5. on 10 June 2016 (i.e. 3 years after first warning, following an NFN) a formal warning for lateness (654); 29.6. on 15 December 2016 a NFN for 3 lates (one for 1 minute); 29.7. on 2 May 2017 a first formal warning for lateness (4); 29.8. on 13 December 2017 a final warning for lateness (one for 1 minute); 29.9. on 21 April 2018 a NFN for 1 incident of lateness of 30 minutes (recorded incorrectly by Mrs Joyce as 45 minutes); 29.10. on 20 June 2018 being investigated for lateness but not disciplined for it: one was an asthma attack and one was 1 minute early. 29.11. In total: 3 formal warnings for lateness and 1 final written warning. The Claimant accepted those warnings and promised to do better. Other Staff Disciplinaries[30]The Claimant was not alone in having a record of warnings. We do not have full information for the other cashiers working during the Claimant’s employment but from the limited material before us we do know that: 30.1. In a management handover document, Mr A Buckleton (who was promoted to supervisor in early 2018) was described as follows: ‘struggles with consistent level of customer service, several final warnings in regards to professional behaviour in the past.’ He also had anger management problems that led to conflict management training. 30.2. Miss Peneva (who was promoted to supervisor in May 2018) had a final warning for conduct issued on 21 March 2017 that expired on 20 March 2018. 30.3. Mr B Smith, who was offered promotion to supervisor in early 2018, was said to struggle ‘with organisational skills’. Training Opportunities[31]The Claimant was keen to progress. She made ‘bright spark’ suggestions. During her employment she received 7 positive file notes commending her for good work: 3 in 2017 and 3 in 2018.[32]In October 2015, she was one of two employees selected to work on a VIP cruise, because of her customer service skills and rapport with customers. The marketing department, rather than her own, selected her for this.[33]As part of her ambition, she sought training opportunities and requested these in her appraisals. Miss Lewis agreed that managers would normally select for training those with the potential for promotion. Case Number: 3200390/2019 8 First Aid Training 2015, 2016.[34]The Claimant put her name forward to do first aid training when it became available in 2015 and 2016. Four white cashiers were selected. From Mrs Joyce’s explanation in the covert recording of November 2018, selection for first aid courses appears to have been informal. We accept the Respondents’ evidence that employees were selected for courses quite near to the time of the course to avoid drop-outs and some selection depended upon who was available on that day. Table Games Refresher Training[35]On 19 May 2017 the Claimant emailed Russell Richardson of the gaming team to ask for a refresher training course or a session on the gaming tables so that she could work in the pit when available. In that email she told him of two days when she was off: the clear implication being those days were days she was available for training. She did not receive any reply. We therefore reject the contention at paragraph 24 of the Response form that the Claimant sought paid training.[36]At some point before his resignation in early 2018, Mr B Smith equally requested refresher training on gaming as he had prior experience like the Claimant. This was agreed to by Russell Richardson and the relevant managers. Mr B Smith did this training in his own time and obtained overtime shifts on the gaming tables when available. Mr B Smith is white and was not in his forties or mid-forties but younger when this opportunity was afforded to him.[37]When this difference in treatment came up in the final grievance, Mr Greenwood stated that a table assessment could be offered to the Claimant on the same basis as it had been to Mr Smith. Conflict Management Training 2018[38]Normally only security, supervisors and managers received conflict management training. But towards the end of 2018 some spare places came up. Mr A Buckleton and Mr B Smith were selected. 38.1. Mr A Buckleton had anger management problems and this was the reason he was selected. 38.2. No reason has been given why Mr B Smith was selected. 38.3. No reason has been given for not providing it to the Claimant. Documents[39]About 6 months before May 2018, in the run up to the new data regulations (GDPR), R1 began to weed out documents from personnel files relating to ‘historic personal data’. This process was ongoing. 39.1. Mr Greenwood confirmed R1 kept documents relating to currently employed staff job applications and promotions. Case Number: 3200390/2019 9 39.2. Some recruitment documents found their way onto the Claimant’s personnel file including the two interview notes in the bundle. 39.3. At paragraph 27 of his witness statement, Mr Greenwood stated that when he looked at the grievance, ‘I read the available previous documents and could understand why other people had been promoted or appointed ahead of her, based on their track records and CVs and age did not come into it, and she didn’t give me any reason to think that age or race did come into it.’ … None of this evidence, if it existed, was before us. Mr Greenwood could not say why the documents he said he had read had not been provided in disclosure. 39.4. Miss Lewis’ evidence was that recruitment documents went into a separate ‘recruitment file’. She did not look for the documents of those successful candidates currently employed. No one in HR or R1 has looked at the successful applicants’ files for the purpose of this claim. Miss Lewis could not explain why not. There is therefore no evidence before us to support the assertions in the Response form as to the merits of the successful candidates (e.g. page 165). 39.5. We have not seen any documentary evidence of criteria for posts except on the advertisement in 2013, see later. 39.6. As to disciplinary records, Mr Greenwood’s evidence was that he looked at the records of other cash desk supervisors (paragraph 19). He asserted in his evidence that their records were not so bad. We have not seen this information and note that in relation to Mr A Buckleton and Miss Peneva it is arguably not correct (see above). 39.7. Mr Greenwood accepted that R1 had the PES scores for all internal candidates for the jobs the Claimant applied for. He accepted PES scores would have been a factor in the appointment decision (along with the interview performance). When asked why R1 had not produced comparative PES scores for the Claimant and the successful candidates to help support his contention that race and age were not factors, he stated, ‘We have chosen not to’. Cash Desk Coach/Supervisor Positions[40]Jobs on the cash desk were difficult for R1 to fill because they are regulated and require the job-holder to be licensed. There is also a fair degree of industry-specific knowledge involved. It was therefore usually internal recruits who succeeded in obtaining the cash desk coach/supervisor role.[41]In 2013 a cash desk coach role was created (later called cash desk supervisor). The Claimant applied for this role in 2013, July 2014 and in November 2014. In each case she was not successful. Case Number: 3200390/2019 10 Cash Desk Coach 2013[42]In 2013 there were three cash desk supervisor vacancies. In July 2013 the Claimant applied and was interviewed for this role, but not appointed.[43]Using the information provided by the Claimant, we find that two of the successful candidates for supervisor were white and between 40-50 years of age, the other younger.[44]The criteria set out in the advertisement were: customer service experience and focus, and 12 months’ cash desk room experience, and a PES Score of 3 or 4.[45]At this point, the Claimant had just received a warning for lateness. This was not referred to when she was told she was not successful. We find, however, it likely that it was considered in assessing her application because timekeeping was important in the industry.[46]There were also two count desk coach vacancies. The count desk is situated behind the cash desk. The Claimant was interviewed but not appointed. We do not know who was successful. At one stage however, Ms T Trezelle-Workes was promoted to count room coach. She is described (at 766) as ‘black Caribbean’.[47]The Claimant was not interviewed for the cash desk manager vacancy, which went to a white employee aged between 30-40. Cash Desk Coach July 2014[48]The Claimant applied again for the cash desk coach role in July 2014. She was interviewed on 8 July 2014 but not appointed. Two candidates were selected to be coaches: both white and between 25-35 years of age (361- 366).[49]The Claimant had no NFNs or warnings in 2014. Her PES Score for the previous year, 2013, was a 2, meaning ‘quality of acceptable customer service is inconsistent…’ (390). Her PES Score at the end of 2014 was a 3. We do not know what her mid-year score was. The interviewers will therefore have known that her last annual PES score was a 2. This was below the advertisement requirements for the job in the previous year. The interviewers will not yet have known her 2013 PES annual score.[50]The interview notes dated 8 July 2014 record ‘good interview calm demeanour good answers and examples given. Working practice does not demonstrate readiness for cage role.’[51]Each month each colleague nominates another colleague for a ‘rising star’ award. Managers moderate the nominations and select the ‘rising star of the month’. In early August 2014 the Claimant was awarded the rising star award from nominations in July 2014. Through the rising star award, colleagues pick out those amongst them whom they regard as going places i.e. having potential for promotion. Cash Desk Coach November 2014 Case Number: 3200390/2019 11[52]Four months later the Claimant had another try for promotion to cash desk coach. Again, she was interviewed on 25 November 2014. The interview notes were retained on her personnel file. The interviewers stated she was able to draw on experience to give examples and identified the ability to do more than she did in the cashier role. But both agreed that she needed to put those answers into practice in her daily work and that she had not been able to identify how the coach role would support the manager. She was not appointed.[53]The successful candidate was white European and between 30-40 years of age.[54]In November 2014 the Claimant had no recorded lateness problems in the form of NFNs or warnings. Other Positions[55]The Claimant tried for Guest Relations Supervisor in 2015, but her application was not acknowledged. By the time she sent a reminder email, it was the day the interviews took place. In this role the Claimant would have supervised staff greeting customers at the entrance. It was also lower paid. The successful candidate had been a cash desk supervisor and was white and between 40-50 years of age.[56]The Claimant applied for Compliance Risk Officer/Collator in February 2016 but was unsuccessful after interview.[57]The Claimant applied for but did not get an interview for Learning and Development Officer in August 2016. The Claimant acknowledged she did not have any qualifications for this role (410).[58]The Claimant applied for Group Collator in September 2016 and was advised she was unsuccessful. The Claimant acknowledged she had no experience in surveillance but relied on her lengthy experience in the industry and her ability to learn.[59]The Claimant applied for a trainee surveillance officer post on 12 December 2016 (415). The interview notes show she gave a good interview but did not get the role because the quality of applications was ‘high with other candidates having skills in IT, report writing and communication above her own’ (417).[60]For those other positions, where we have not set it out expressly, we do not know the age group or race of the successful candidate. December 2017 Cash Desk Supervisor Advertisement[61]A position of cash desk supervisor was advertised internally in late 2018. Only one vacancy was advertised.[62]The Claimant thought that Ms A Speiwak would be deciding the appointment. She did not think she stood a chance because this manager did not like her. She therefore did not apply. Case Number: 3200390/2019 12[63]Ms Speiwak resigned. Mr Malik acted-up and made the appointment decisions.[64]Mr B Smith was chosen for the role but on 1 February 2018 he resigned. On the same day Mr A Buckleton, the next best candidate, was offered the post instead. Promotion of Miss Peneva May 2018[65]The staff handbook (both in 2013 and 2017) stated that vacancies would be advertised unless there was a ‘succession management programme’.[66]Mr Malik and Ms Stephens decided in about April 2018 that a further cash desk supervisor was required. They asked Miss Lewis, of HR, if they could appoint from the December 2017 recruitment round. Miss Lewis agreed.[67]During the grievance, R1 at first suggested there were 2 vacancies for the original advertisement, which was not the case. Miss Lewis’ timeline, at page 463, showed this and that the additional supervisor role was only created 2 months later.[68]What we do not accept is that at the time (or indeed now) Miss Lewis genuinely considered that Miss Peneva could be regarded as on a succession management programme. There is no evidence of this. Miss Peneva was third in the list of five candidates and therefore not an obvious candidate for promotion. And, at the time of the interviews, she had final written warning for conduct. She was not in such a programme. We consider this is an excuse Miss Lewis came up with when the Claimant brought a grievance about the breach of policy in the failure to advertise this vacancy. Ultimately, in her oral evidence, Miss Lewis accepted Miss Peneva was not in a succession management programme.[69]Mr Greenwood said in his evidence that a final written warning would preclude someone from appointment. He later said it would be highly unusual to appoint someone with a final written warning depending on the quality of the candidate. Miss Peneva’s warning would have expired in mid- March 2018, she was therefore on a final warning when interviewed and assessed.[70]Miss Peneva was promoted to cash desk supervisor without the appointment being advertised. She is white and was in her forties when she was appointed. The Claimant was very aggrieved about missing out on this opportunity. Despite her decision in December 2017, we accept that she would have applied for this further vacancy, now that she knew Ms Speiwak was not making the decisions. Of course, all potential applicants for this second vacancy were denied the opportunity to apply. Promotions Generally[71]On the cash desk, no black or black mixed heritage cashier has been promoted. By the time of resignation there were around 20 cashiers and 3 supervisors across different shifts over the 24 hours.[72]Two employees in the 40-50 age group were promoted to cash desk Case Number: 3200390/2019 13 coach. The Claimant thought they were in her age group. This is consistent with her record in the evidence. Miss Peneva was also promoted to supervisor when she was in her forties.[73]Overall, we have heard of only 2 black or black mixed heritage employees gaining promotion to supervisory positions out of a staff of 560. Ms T Trezelle-Workes was promoted to count desk supervisor and Mr Bailey to the very senior managerial position of General Manager Gaming.[74]We have seen R1’s diversity figures for September 2018 that 6% of staff are ‘black British’ with a further 7% being in the category ‘ethnicity other’ which may include people of mixed Black African heritage. There were, in 2018, therefore around 39 black British employees, perhaps more depending on the ‘ethnicity other’ category. First Grievance[75]On 22 May 2018 the Claimant raised a grievance with Miss Lewis about a breach of R1’s Equality and Diversity policy giving no details (491).[76]Mr Bailey was appointed to decide the grievance. It was established the grievance was about the appointment of Miss Peneva without advertisement and the lack of bonus. Mr Bailey met with the Claimant on 22 June 2018 and investigated. He spoke to, Mr Malik the acting cash desk manager. Investigated for Lateness[77]On 21 April 2018, Mrs Joyce issued a NFN to the Claimant for being 45 minutes late. She now accepts the facts were that the Claimant had been 30 minutes late. (Mrs Joyce could have started dismissal proceedings because the Claimant was on a final written warning for lateness but did not do so.)[78]On 20 June 2018, the Claimant had a meeting with Mrs Joyce about recent alleged lateness since receiving a final warning. The Claimant accepted she was 30 minutes late on 10 April 2018. She told Mrs Joyce the reason was caring responsibilities for her grandchild. The second allegation of lateness was for arriving at her desk 1 minute late. The Claimant contended she had clocked in 1 minute early. The final incident concerned 16 June 2018. It was established this was an absence for an asthma attack that had been sanctioned by a manager. On 26 June 2018, Mrs Joyce informed the Claimant she would take no further action on these issues.[79]On balance we do not consider that Mrs Joyce investigated these matters because the Claimant had raised a complaint: at least two of them were substantial lateness that required investigation and Mrs Joyce took no further action, even though the Claimant was on final written warning. Letter of Concern about Sickness[80]On 3 July 2018, Mrs Joyce sent the Claimant a letter of concern in relation to her sickness. Case Number: 3200390/2019 14[81]We accept that Mrs Joyce says this was a standard step and not because the Claimant had raised her grievance. Mrs Joyce accepted in the grievance that it should have been removed from the file because one of the absences was sanctioned by a manager and should have been recorded as a voluntary early leave (591). First Grievance Outcome[82]Mr Bailey’s outcome letter (511) of 4 July 2018 informed the Claimant that: 82.1. HR had been consulted and it was reasonable to use candidates from the earlier exercise because it was within a few months. 82.2. He summarised the Claimant’s salary rises and PES scores and established she had not therefore qualified for the STEP or PPP bonus.[83]The Claimant appealed that decision. She objected to Ms Stephens dealing with it and it was passed to Mr Whitmore, Head of Live Table Gaming. The Claimant objected to him because he was junior to Mr Bailey and therefore was not, she argued, in a position to overturn the decision of his superior. This objection was not accepted.[84]On 7 August 2018 Mr Whitmore sent his outcome letter (553). He acknowledged that the Claimant had acted-up as supervisor ad hoc, as had other colleagues. He did not uphold her appeal, coming to the same conclusions as Mr Bailey. Miss Djurisic approach 9 August 2018[85]Miss Djurisic was seconded to manage the cash desk. She heard from Mrs Joyce that the Claimant was arriving just in time or late. She knew that the Claimant was on a final written warning. She wanted to make it clear to the Claimant that she should not be late.[86]Miss Djurisic spoke to the Claimant in the corridor—a place where people would come and go from the cash desk.[87]Miss Djurisic did not threaten the Claimant with dismissal. She said she did not want to lose the Claimant through lateness.[88]The Claimant said to Miss Djurisic that she was arriving on time. Miss Djurisic responded that she was arriving ‘just in time’. We find this is likely what Mrs Joyce had told her, as it was Mrs Joyce’s problem with the Claimant. We note arriving just in time is not arriving late. Miss Djurisic told the Claimant she should arrive 2-5 mins early for her shift. In this regard, on balance, Miss Djurisic may well have said to the Claimant, in an effort to make her point, that she was ‘taking the piss’.[89]In this effort to make her point, Miss Djurisic came across as more than direct but aggressive and the Claimant felt intimidated by her comments.[90]We find, however, on balance that Miss Djurisic did not say you are a Case Number: 3200390/2019 15 ‘grown-ass’ woman. We do so because this is not recorded in the Claimant’s near-contemporary note of the conversation: a note in which she attempted to record what had been said. This was such an unusual comment that we consider the Claimant would have recorded it at this time, especially if she had been offended by it as she contends. We find Miss Djurisic probably said words the gist of which were: you are a grown woman, come in on time. This was again to make the point to the Claimant that she was sufficiently experienced to know that coming in on time was important.[91]We find on balance that, at this stage, Miss Djurisic did not know that the Claimant had complained about discrimination. We accept her evidence and she had not been interviewed. ACAS EC Certificate[92]On 14 August 2018 the Claimant first contacted ACAS Early Conciliation. She was provided with a certificate on 14 September 2018 when it ended.[93]By this point the Claimant had TU representatives at her grievance meetings. She had also used online resources. She said she understood the ACAS EC period was either to reach a settlement or bring a claim. She had access to Trade Union advice but not legal advice. She had spoken to Citizens Advice at a brief advisory session. But she could not afford a lawyer. Incidents at work[94]On 17 August 2018 Mr A Buckleton, now a supervisor, counted the Claimant down as she was reaching her desk. She had a reputation for arriving at work just on time. We find it likely this was why he was counting her into her desk. While it was likely meant as a joke, we accept the Claimant was upset by it.[95]The Claimant observed other cashiers arriving between 1 minute before and 1 minute after their shift started and not being spoken to.[96]The Claimant felt at this time that she was being watched and micromanaged. She contends that supervisors were standing behind her watching what she was doing. She recalls Miss Peneva pulling her up on how she had packaged some £20 notes but when the Claimant asked if she should do it differently Miss Peneva said not to do so and walked away. (The Claimant referred to this incident in a what’s app discussion with a colleague on 20 August 2018). The Respondents’ witnesses pointed out that the cash desk was a small space and that a supervisor would often stand behind the cashiers at the booths. We consider the Claimant may have become sensitive to management at this point because she knew she had made a complaint but that these incidents were not because she had raised a complaint. They were more likely, in our judgment, the approach of a relatively new supervisor, Miss Peneva. 29 August 2018 – 5 November 2018 Off sick[97]On 29 August 2018 the Claimant was signed off work by her GP with Case Number: 3200390/2019 16 stress. This period of sickness lasted until 5 November 2018.[98]On 18 September 2019 in the cash desk newsletter all cashiers were requested to attend 2-5 minutes before the start of their shift. Second Grievance[99]On 5 October 2018, the Claimant then wrote to Mr Greenwood seeking to appeal Mr Whitmore’s decision on the grievance appeal. On 11 October 2018 Mr Greenwood refused to hear an appeal against the appeal because that was not part of the procedure.[100]However, Mr Greenwood noted that the Claimant had raised new matters in her letter to him and he required these to be investigated by Mr R Smith, Group Operating Director (561). This has been referred to as the second grievance. The Claimant provided further details for it on 11 October 2018.[101]In this second grievance the Claimant alleged that: 101.1. she had been victimised, harassed, and bullied since raising her grievance by Mr Malik, Miss Djurisic and Mrs Joyce: she gave detailed examples; 101.2. she was facing ongoing discrimination in promotion; 101.3. R1 was looking to get rid of her; 101.4. she disagreed with the reasons for Miss Peneva’s promotion.[102]The Claimant accepts that Mr Smith listened to her in his investigation and adopted a careful approach. He met with her on 22 October 2018 in a meeting lasting from 3pm to 6.30pm. He interviewed Miss Djurisic on 24 October 2018 about the matters she raised including the allegation that she had used the ‘grown ass woman’ phrase. He interviewed Mrs Joyce on 29 October 2018. Mrs Joyce said she knew a grievance had been made and the cash desk was small and that the cashiers talked but she did not know what the grievance was about. Mr Smith asked her whether she had harassed the Claimant or treated her differently or bullied her or victimised her (592). Mr Smith interviewed Mr Malik on 31 October 2018. He asked, ‘were you aware that Rita felt you had discriminated against her’. He also asked whether Mr Malik had bullied her. Mr Malik said no and that he was disappointed to hear those allegations. (595) Mr Smith stated in the outcome letter that he also spoke to Mr R Richardson the CSM L&D Gaming who explained how Mr B Smith had been trained and that he had not been approached by any other cashiers ‘for a similar situation’.[103]There is no real dispute that the cash desk was small, and discussions happened and that by this stage (end October 2018), in general terms, Mrs Joyce, Miss Djurisic and employees on the cash desk knew that the Claimant had made a discrimination complaint. Second ACAS Certificate 26 October 2018[104]Meanwhile, on 26 October 2018 the Claimant had contacted ACAS Early Case Number: 3200390/2019 17 Conciliation again. A certificate was provided on 16 November 2018, the day after Mr Smith’s outcome letter see below. Return to Work 5 November 2018[105]On 5 November 2018, the Claimant returned to work and had a return to work interview with Miss Djurisic. The Claimant told her that the GP had recommended a phased return, but Miss Djurisic established there was no paperwork to support this and she asked the Claimant to obtain the necessary paperwork from her GP. Once it was forthcoming a phased return was allowed.[106]We find Miss Djurisic has a direct approach to management and this is the approach she adopted here. She was happy that the Claimant was back because the team was short-staffed. She was also relatively distant from the cash desk team.[107]We make the following findings about the Claimant’s return to work: 107.1. On day 1 she likely was ignored by her by her two colleagues and Mrs Joyce merely responded to her greeting. But Mr Buckleton did not ignore her. 107.2. Mrs Joyce did not greet her with any more than an ‘alright’ on day one because of the grievance harassment bullying allegations made. 107.3. Overall the atmosphere was initially uncomfortable for all. The Claimant was also quieter than usual. 107.4. However this frosty atmosphere soon melted, and cash desk workers reverted to relatively friendly communication. We rely on the Claimant’s covert recording of 27 November 2018 as evidence of this. 107.5. On balance therefore we do not agree either that the Claimant was shunned for days nor that she was not speaking to her colleagues. 107.6. Miss Djurisic was a distanced manager, as was her usual approach. Second Grievance Outcome Smith[108]Mr Smith sent the Claimant his detailed outcome letter on 15 November 2018. He rejected the Claimant’s grievance giving reasons for each issue.[109]The Claimant appealed the outcome of the second grievance by letter of 20 November 2018. Mr Greenwood Appeal Meeting 28 November 2018[110]Mr Greenwood was employed by Aspers Group company, but he had authority to hold grievances for R1. He read the documents from Mr Case Number: 3200390/2019 18 Smith’s investigation and his outcome letter.[111]On 28 November 2018 Mr Greenwood held a meeting with the Claimant and her TU representative. Miss Lewis also attended.[112]Mr Greenwood informed the Claimant that he did not consider her discrimination claim was substantiated.[113]Mr Greenwood had noted there were two new complaints in the Claimant’s appeal letter, points 12 and 13, about matters that had occurred since the return to work on 5 November. Mr Greenwood did not investigate these apart from asking the Claimant about them. Point 12 alleged continued harassment, bullying, and unprofessional behaviour on her return to work. When asked about it at the meeting she referred to being ignored by Mrs Joyce and two colleagues on the first day. And Mrs Joyce only saying ‘yeah alright’ in response to her greeting. She told Mr Greenwood that this was very different behaviour than before her grievance where one of her colleagues would hug her and have a pet name for her. He expressed the view it was unsurprising if colleagues were not as friendly towards someone who had made a complaint of discrimination about them. She also told him that Miss Djurisic had demanded written proof of her GP advice on a phased return. He said that this was normal practice.[114]He pointed out what he called ‘the elephant in the room’ that the Claimant was on a final written warning for lateness. He considered that this precluded her promotion. The Claimant said she had never been informed about this in previous job application feedback.[115]On games table training, the Claimant told Mr Greenwood, in response to Mr Smith’s investigation, that she had asked Mr B Smith how he had got the training. She spoke to Mr Whitmore and, on his direction, asked Mr Richardson by email for the same training, but she did not receive a response. Mr Greenwood indicated he would take that away and have a look at it. He did not do so, despite noting to Miss Lewis, in a break, that it was ‘a bit interesting’ (807).[116]Mr Greenwood accused the Claimant of bringing a tribunal claim. There followed an ‘oh yes you did; oh no I didn’t’ exchange between them, until Miss Lewis corrected Mr Greenwood.[117]We find that the Claimant did not agree not to use the ‘discrimination’ word during this meeting. In fact, Mr Greenwood pushed her into not using that word and pressured the TU representative not to do so. When, later in the meeting, the Claimant referred to what had happened as discrimination, Mr Greenwood intervened warning her that she was ‘using the d word’ again. He made it clear that he did not wish to hear any further argument that she had been discriminated against.[118]At the end of the meeting, Mr Greenwood told the Claimant that if she made any further discrimination complaints that were not supported with evidence then the company might take a different approach. The recording transcript records him as saying: ‘please don’t take this as a threat or as a warning, just a bit of advice, you’ve made a number of serious allegations … most if not all of these things I don’t believe are substantiated. If you Case Number: 3200390/2019 19 make those kinds of allegations in the future, they need to be backed up and supported with evidence because, it’s not a threat, but if there’s a belief that an employee has made up allegations against other employees whether they’re colleagues or senior people which, … can cause stress and upset for other people. The company might take a different view and treat what you’ve put in writing in a different way.’ Having considered his oral evidence and the context, we unanimously find, ‘different way’, it was clear that Mr Greenwood was referring to disciplinary action. Although he repeated that his words were not a threat, we find it was plain they were in fact a threat to the Claimant. His aim was to make it clear to the Claimant that she might be disciplined for a discrimination complaint the next time if R1 took the same view that it was not substantiated. This was also his aim during the meeting when he discouraged the use of the ‘d[iscrimination] word’.[119]Overall, having listened to the recording of the meeting, we find that Mr Greenwood was not aggressive but was condescending towards the Claimant.[120]The Claimant made a covert recording of the meeting with Mr Greenwood. During private breaks: 120.1. Mr Greenwood said to Miss Lewis ‘One of the benefits of getting older I keep getting left out I’ve been doing … I’ve been doing this. It’s like Danny La Rue … I’ve been doing pantomime for 500 years!’ He used a whimpering voice in this exchange. Unanimously we do not accept Mr Greenwood’s explanation that he was referring to himself in this exchange. The statement ‘I keep getting left out’ does not make sense if he was referring to himself. He was the HR director and there was no context for him being left out. This was more obviously a reference to the Claimant’s complaint that she had been doing the job for years but kept getting left out of training and promotions. Although this comment was not directed at the Claimant, it clearly showed that Mr Greenwood’s attitude was to mock her complaint of agerelated discrimination. 120.2. Miss Lewis stated privately to Mr Greenwood she thought the complaints malicious and that the Claimant wanted money. Mr Greenwood did not agree with this. 120.3. We agree with the Claimant that Miss Lewis in the meeting was more than a scribe but gave her opinion to Mr Greenwood as can be seen in these private exchanges.[121]Mr Greenwood did not uphold the appeal and confirmed the outcome of the second grievance in a letter of 14 December 2018. It does not appear from his letter that he investigated whether the Claimant had contacted Mr Richardson, but he informed her that ‘for fairness’ she could be offered games table training like Mr Smith (670). He stated, ‘I think it would be sensible for a dealer assessment to be undertaken to evaluate your current performance level and a training plan created accordingly’. He agreed in his oral evidence that this was known as a ‘table assessment’: a test of Case Number: 3200390/2019 20 dealer skills at the gaming table. Further Issues at Work Chebetlova Reprimand[122]Mrs Joyce did sheepishly reprimand Ms Chebetlova for being a minute late. She had changed her approach to reprimanding staff in public because of the Claimant’s complaint. She was awkward in doing so because Ms Chebetlova was not normally late.[123]The Claimant’s phased return ended on about 5 December 2018. Short Changeover Shifts[124]Mrs Joyce gave the Claimant 4 short changeover shifts in the December 2018 rota. This was more than other colleagues. The Claimant would not have expected more than 2 in this month. A short changeover shift means that the next shift is 11 to 12 hours after the end of the first. This gives little time to travel home, rest and return to work. They are disliked by cashiers. 124.1. The majority of the Tribunal (Ms Alford and EJ Moor) have reached the conclusion that this was a subtle way of punishing the Claimant for having complained. They take into account that the allocation of 4 shifts was twice what was normally expected and that these shifts were disliked. They weigh in the balance that Mrs Joyce was plainly upset by the discrimination complaint when asked about it at interview and likely took offence. Although Mrs Joyce gave the Claimant a holiday on her birthday in December, in their view this was because holidays were normally given to workers on their birthday. One of the reasons given to us for this rota was that the Claimant was on a phased return, which was not the case after 5 December. In their judgment, a partly incorrect explanation makes it less reliable and gives rise to the inference that the complaint was the reason for this treatment. 124.2. Mrs Legg considers that this shift allocation was not a deliberate punishment. She weighs more heavily that Mrs Joyce gave the Claimant two days off on her birthday in mid- December when holidays were not normally given in December and considers therefore that the 4 shifts came about because of the difficulty of organising the rota. She also weighs heavily that the covert recording of late November shows that Mrs Joyce was accommodating to the Claimant about training and considers on balance that she was not therefore likely to have punished the Claimant in her allocation of shifts. Handover[125]On 19 and 20 December 2018, the Claimant was not given handover information when a supervisor was not present. It was passed to more junior employees. Case Number: 3200390/2019 21 125.1. The majority of the Tribunal (Ms Alford and EJ Moor) consider, on balance, that this was because of the Claimant’s discrimination complaint. It was a personal complaint against Mrs Joyce at least and colleagues likely knew about by then and understood that Mrs Joyce was upset by it. They consider the weightiest factor here is the prior practice that the Claimant was given the handover information if she was in work. This was because she was the longest-serving and most experienced. It was therefore unusual and undermining of her not to be given this information. This was a change in practice that, to them, was marked and odd. The inference arose therefore that colleagues were subtly leaving her out because she had made a discrimination complaint against one of their own. 125.2. Mrs Legg weighs most heavily the covert recording of late November in which staff appeared to be getting on amicably. She considers that not being provided with the handover information on only two days is insufficient a change from which to draw any inference. Drinks[126]On 19 and 20 December 2018, all the other colleagues working in the cash desk, two cashiers, Miss Peneva and Mrs Joyce, discussed going out for a drink at Las Iguanas. The Claimant was the only one in the room not included. This was not a formally organised works drink, but we all consider it was a drink among work colleagues to which the Claimant would normally have been invited. We all agree it was at the very least insensitive to discuss the arrangements in front of her when she was not invited. We all conclude that this exclusion was because the Claimant had complained of discrimination. While working relationships were relatively amicable, the team did not wish to socialise with someone who had complained of discrimination against Mrs Joyce personally. This was a way to make their displeasure over the complaint felt. Difficult customer[127]On 21 December 2018 the Claimant dealt with a difficult customer at the cash desk. She was used to having to do so. He may well have been abusive by raising his voice and arguing.[128]We accept the evidence of Miss Peneva and Mrs Joyce that they observed this but did not interfere because to do so could have exacerbated the situation and undermined the Claimant in front of the customer. This was their usual practice. Miss Peneva told us, and we accept, that the Claimant was really good at calming down difficult customers, and she did so on this occasion. Miss Peneva kept an eye on the situation to make sure she could see any sign, like eye contact, from the Claimant that she needed help. The Claimant did not give such a sign. It was not until after another customer that the exchange took its toll and the Claimant became upset. She left the cash desk in tears. Mrs Joyce, upon hearing this, went to her, and asked if there was anything she needed. The Claimant asked to go home early and Mrs Joyce agreed. Case Number: 3200390/2019 22[129]We are unanimous that on balance Mrs Joyce and Miss Peneva offered the right level of support here. While in the past Mrs Joyce might have been friendlier towards the Claimant when she went to see her, she nevertheless acted appropriately by going to see her, by asking her what help she wanted and by allowing her to go home. Shredding[130]Miss Peneva directed that the Claimant should do some shredding on 21 December 2021. We considered whether this was another subtle way of punishing the Claimant by giving her a menial task. But, on balance, we all agree that this instruction to shred was not because the Claimant had made a complaint. We take into account the following matters: shredding had to be done within a certain time; there was a fair amount to do; everyone did shredding including managers; and this was just one occasion on which the Claimant was asked to shred. The Claimant objected to being asked to do shredding in her witness statement, but changed this in her oral evidence to objecting to the time when she was asked. The Claimant was not clear in her evidence that they were busy at the time: she said ‘ideally’ we were busy, which was not a memory of being busy. It was not clearly, therefore, an inappropriate time to be instructed to do so. Sickness Absence and Return to Work Discussions[131]From 29 December 2018 the Claimant was off sick from work with stress.[132]On 14 February 2019 the Claimant presented a Tribunal claim for age and race discrimination and victimisation and harassment.[133]On 18 March 2019 she attended an occupational health meeting. On 25 March 2019 she attended a welfare meeting off site with Miss Lewis. By this time R1 was aware of the claim. In the light of the tribunal claim and prior grievance, they discussed the arrangements for the return to work. The Claimant suggested other members of staff be trained on bullying and harassment This was rejected because Miss Lewis considered the grievance closed and no member of staff had been found guilty of such behaviour. She referred to the polices that existed at work in equal opportunities and conduct and the training of managers in mental health.[134]On 2 April 2019, a second welfare meeting was held at short notice because of the expiry of the Claimant’s fit note. The Claimant was accompanied. Miss Lewis confirmed a 12-week phased return. She proposed a return on 11 April and that the Claimant was paid ‘emergency leave’ for the period not covered by a fit note. Two options were discussed: either a return to the original role or a new role on the gaming tables. This latter role would have meant the Claimant did not have to work with those she had complained about.[135]For a return to work at the cash desk, Miss Lewis proposed that the cash desk team would be reminded of the importance of working together professionally. The Claimant would be provided with a buddy who could be a manager in another department. Miss Lewis referred to the lateness issue and the prior warning. She did so to explain that managers would Case Number: 3200390/2019 23 still have to manage lateness.[136]For alternative work at the gaming tables, Miss Lewis proposed that the Claimant would do 6 weeks of training. This was an insult to the Claimant who had a great deal of experience on gaming tables, albeit some 7 years before. She accepts that she would have had to learn the particular approach of R1, but we accept her evidence that this would not have taken anything like 6 weeks. She contends that normal training would start with a table assessment (as Mr Greenwood had proposed in the grievance outcome); or the kind of training Mr B Smith received which took no more than a few hours; or, at the most, the 2 weeks of training that R1 admits would be provided to an experienced croupier starting work with R1.[137]The Claimant wrote to Miss Lewis 5 April 2019. She explained how she felt about the proposed 6 weeks’ training. She told Miss Lewis she considered it to be insulting. She also made the point clearly that it would be treating her differently from both Mr B Smith and a new starter with her experience[138]In Miss Lewis’ reply of 9 April 2019 she refused to adjust the length of the training period. She relied on there being a phased return (but did not explain how the standard 2 weeks for a new starter became 6 weeks even with a phased return) and she tried to distinguish Mr B Smith’s situation.[139]Why, then, did Miss Lewis state that the alternative role would start with 6 weeks of training? In her evidence to us she said if it turned out it was not necessary it could have been reduced. But this is not what she told the Claimant in her reply. Miss Lewis ignored the two plainly comparable situations. As a matter of fact, Mr B Smith could not be distinguished from the Claimant: he too was a current cashier with experience. In the past, the Claimant’s request had also been for unpaid training. As a matter of fact, the new starter with experience, was probably less of a comparator, having no experience with R1 at all. But even if their 2 weeks of training had been applied, a phased return would not have turned it into 6 weeks. We do not accept Miss Lewis’s evidence that she was trying to ensure the training was a success. If this had been the case we consider, on hearing the Claimant’s objections, she would have altered her initial proposal along the lines of her oral evidence to us: starting with Mr Greenwood’s proposal of a table assessment and seeing how the Claimant went. She told Mr Greenwood she thought the complaint malicious. We have concluded, on balance, that Miss Lewis used the training as an obstacle to the Claimant’s return because she thought the Claimant had made a malicious complaint. Resignation On 11 April 2019 the Claimant resigned by letter.[141]We find her reasons for doing so from her letter were: 141.1. she felt the 6 week training course for the table games option was demeaning, belittling, and insulting and was an act of discrimination in itself compared to the treatment of Mr B Smith who had only a few hours of training. It was the equivalent to a new trainee. A new starter only received 2 weeks’ induction. A Case Number: 3200390/2019 24 table assessment test would have been appropriate to determine ability, before imposing 6 weeks’ training; 141.2. she did not consider it was Miss Lewis’ intention to look into the recent issues, by which we find she meant point 12 of her last grievance and her contention that she had been victimised on the cash desk because Miss Lewis had reiterated that the matter was closed; 141.3. she considered there was ‘discriminatory treatment’ from ‘cash desk colleagues’ which had continued and gave her no confidence in returning. This was the treatment she complained about since her grievance that we have set out above; 141.4. no assurance had been given about training the individuals implicated and her request that there be bullying and harassment training within the company had not been acknowledged.[142]In addition, while not referred to expressly in her resignation letter, we unanimously find that the alleged discrimination in promotions was also in the Claimant’s mind when she resigned. We rely on her oral evidence in cross-examination where she referred to the start of her considering that her employment was becoming ‘intolerable’ was when she ‘realised’ she was being discriminated against in promotions and submitted her grievance.[143]We also find that the Claimant very likely had in mind Mr Greenwood’s approach to her grievance given that it was so striking: his threat not to bring further complaints of discrimination and his suppression of the ‘discrimination’ word during the meeting. In her claim form of 14 February she refers to his indirect threat of counter-action if she went to a tribunal and that she found his approach bullying, intimidating, and harassing (paragraph 63). And, at paragraph 93 of her Amended Claim form, she contended that she resigned in response to the conduct set out. We therefore find Mr Greenwood’s conduct at the meeting was also one of the matters that caused her to lose confidence. Holiday[144]All agree the holiday year was the calendar year. The Claimant was paid for her accrued but untaken holiday for 2019. She claims 4 days in respect of 2018 when she had booked holiday but was sick. She agreed in her evidence that she had taken 4 weeks’ paid holiday in 2018 in addition to these four days. Submissions[145]Both representatives gave us succinct and helpful oral submissions. We summarise their main points below.[146]Mr McFarlane, for all Respondents, started at the end and argued that there was no constructive discriminatory dismissal here. His main argument was that nothing had happened after the last incident at work on Case Number: 3200390/2019 25 21 December 2018 which amounted to a breach of contract or last straw. He argued that by continuing to receive pay until early April, that was too much of a delay and was affirmation. The welfare meetings were to achieve a successful return to work while being consistent with the grievance outcomes. The Claimant’s objection to the training offered was inconsistent with her claim in the past that she had not received sufficient training. This was not a last straw.[147]Mr McFarlane acknowledged that Mr Greenwood’s handling of the grievance could be criticised but what he had said in the covert recordings was not directed at the Claimant. His aim was to find a successful way forward. The Claimants TU representative appeared to agree this was not a discrimination case.[148]On the direct discrimination case, the logic of the Claimant’s case on promotion had to be that there was a policy or practice of discrimination and she had not shown that here. The appointment of Miss Peneva was in relation to a job round for which the Claimant had not applied. This decision could not be said to have been to ensure the Claimant failed. He relied on the Claimant’s poor timekeeping as the more obvious explanation for why in the past she had not been successful. He made detailed submissions on why the particular complaints were not race or age related.[149]In relation to victimisation he asked us to weigh heavily the covert recording in November which showed staff relationships were amicable despite the investigation of the grievance. The Claimant was sensitive to matters that arose at work because she had raised a grievance.[150]He argued that much of the claim was out of time and could not be revived by a new ACAS EC certificate. There was no explanation for any delay and during much of the period the Claimant had access to TU advice. The weeding of the personnel files by R1 meant that they were prejudiced in not having available all documents. He acknowledged that the dismissal claim was in time.[151]Mr Starcevic for the Claimant gathered the direct discrimination claim into 4 strands: bonus/incentives; promotions; training; and treatment in lateness and absence.[152]He argued there was a pattern here of failure to succeed although the Claimant was clearly very experienced and long-serving and paid higher to recognise that. She was rejected for promotion even when voted a ‘rising star’. Her lateness had not been referred to as a problem in feedback and anyway others with chequered careers had been promoted. It was remarkable there were no black supervisors in the cash desk. The only similar promotion was that of Ms Trezelle-Workes, which did not fit with the demographics produced. When there was a promotion to someone in authority this was consistently a white, younger person. He reminded us that evidence of race or age discrimination is usually not obvious and it was a question of what inference could be drawn from the facts. He argued the facts here allowed us to draw such an inference of a arguable case which led to the burden of proof being reversed. R1, he contended, could not then show that in this case the decisions made were Case Number: 3200390/2019 26 in no way tainted with race or age. Very often no explanation had been given. R1 had not even provided us with the CVs of the successful candidates.[153]On the time point Mr Starcevic relied on the direct discrimination complaint here being about a ‘state of affairs’ and as such a continuing act. There did not have to be an express policy. It was right for the Claimant to pursue her complaints internally before bringing a claim. From then on R1 could have preserved documents and there were clearly some in existence it had simply chosen not to produce.[154]On victimisation he argued that Mr Greenwood’s approach clearly was to threaten the Claimant. We could rely on his tone, his rubbishing of the Claimant’s genuine complaints. As in St Helens (see below), so here Mr Greenwood had crossed the line from an appropriate expression of his view that the grievance did not succeed to inappropriate pressure and threats. The manner in which the grievance was handled could still amount to a detriment even if the outcome was correct, he referred to Deer (see below).[155]He argued there was a discernible change in attitude towards the Claimant after her grievances which was because of the grievance. This was a closed environment: the team was likely to know.[156]On harassment he repeated, effectively, his submissions and drew our attention in particular to the complaint against Miss Djurisic and Mr Greenwood’s mocking of age.[157]On unfair dismissal he went through the statutory test and argued there were two last straws here: the 6 weeks’ training and the decision not to coach staff on bullying even when the continuing claim had not been investigated. Nor was there any affirmation here: the Claimant with the Respondent was still discussing her options. It was not an affirmation to see what the Respondent could propose post-grievance. Law Unfair Constructive Dismissal
[7]The First Respondent unlawfully victimised the Claimant by requiring her to undertake 6 weeks’ training in the proposed alternative role in the gaming team.[8]The First Respondent, Second Respondent, and the Fourth Respondent unlawfully victimised the Claimant by excluding her from discussions about after-work drinks.[9]Except for the claims of unlawful victimisation that have succeeded by majority (see below), the remaining claims of victimisation fail.[10]The claims of unlawful harassment fail (in one respect by majority).[11]The holiday pay claim fails. It is the judgment of the Tribunal by majority that:[12]The dismissal was not an act of direct race or age discrimination.[13]The First Respondent and Second Respondent unlawfully victimised the Claimant by giving her 4 short changeover shifts in December 2018.[14]The First Respondent unlawfully victimised the Claimant by failing to provide her with handover information on 19 and 20 December 2018.[15]The claims of direct race and age discrimination fail in relation to the failure of Mr Greenwood to investigate and his approach at the grievance appeal hearing.[16]The claims of harassment relating to race and age fail in relation to the failure of Mr Greenwood to investigate and his approach at the grievance appeal hearing It is the minority judgment of Ms Alford that:[17]The dismissal was an act of direct race and age discrimination.[18]The claims of direct race and age discrimination succeed in relation to the failure of Mr Greenwood to investigate and his approach at the grievance hearing of 28 November 2018.[19]The claims of harassment relating to race and age succeed in relation to Mr Greenwood’s conduct towards the Claimant during the grievance hearing of 28 November 2018. Case Number: 3200390/2019 3 It is the minority judgment of Mrs Legg that:[20]The Claimant was not unlawfully victimised by:a. the Second Respondent giving her 4 short changeover shifts in December 2018;b. the failure to provide handover information to her on 19 and 20 December 2018.[1]The Claimant resigned from her employment with the First Respondent (‘R1’) in circumstances she claims were direct race and/or age discrimination, victimisation, harassment relating to race and/or age and constructive unfair dismissal. She also makes a claim for outstanding holiday pay.[2]The hearing was originally listed for what became the first week of the national lockdown in March 2020. It was unfortunately postponed for a further 18 months. We thank the parties for undertaking a remote hearing by video. During the hearing different participants encountered the occasional connection difficulty, but we ensured an effective hearing took place by pausing and, if necessary, recapping any evidence missed.
Issues
[3]The claim form was presented on 14 February 2019. At that point the Claimant was still employed. The claim alleged direct age and race discrimination, victimisation and harassment relating to race and age. The Claimant resigned on 11 April 2019, and on 17 June 2019 she submitted an amended claim making additional discrimination and victimisation claims and an unfair constructive dismissal claim including that the dismissal was discrimination (paragraph 100). EJ Burgher allowed the claim to be amended at the Preliminary Hearing on 24 May 2019. The Claimant provided further particulars by order. Both the amended claim form and the amended response form on behalf of all Respondents well set out the issues in the case. EJ Burgher drew up a list of issues appended to his Case Management Order. Mr Starcevic helpfully provided a List of Factual Allegations identifying the claim to which each related. We were also assisted with a chronology, cast list and glossary. The age group relied on is the mid-forties and over.[4]We agreed to deal with liability only at this stage.[5]The holiday pay claim was not particularised. By the end of the hearing, it was established that it related to non-payment in respect of 4 days of booked holiday in the holiday year 2018 ultimately taken as sickness. The Claimant contended that European law allowed these to be carried over. R1 contended that the days claimed were after the 4 weeks’ holiday under Case Number: 3200390/2019 4 Regulation 13 of the Working Time Regulations 1998 (derived from the relevant European Directive) and therefore could not be carried over. It was agreed that holiday accrued but untaken in the holiday year 2019 had been paid.
Findings of Fact
[6]We heard the evidence of the Claimant, the third Respondent, Mr T Greenwood, group HR director, the second Respondent, Mrs K Joyce (neé Greenyer), the fourth Respondent, cash desk supervisor, Miss D Peneva, Miss L Lewis, HR manager, and Miss C Djurisic, gaming customer service manager, seconded to manage the cash desk. We read the documents referred to us in the evidence. In reaching findings of fact we applied the balance of probabilities test by asking ourselves what was more likely to have occurred. We make the following findings of fact.[7]R1 runs a ‘super casino’ at Stratford Westfield Centre. It is open 24 hours a day, 364 days a year. It employs around 560 staff. R1 belongs to the Aspers Group of companies.[8]The Claimant is of mixed black African heritage. At the time she started with R1, she was nearly 41 years of age. She had about 22 years’ experience of working in the gaming industry, including on cash desks and on gaming tables as a dealer at high-end London casinos. She also had managed a betting shop.[9]The Claimant began work on 21 November 2011 for R1 as a cashier on the cash desk. She was initially paid £23,500. This was more than any other cashier because of her greater experience. Thus, from the start of her employment, she was the most experienced cashier on the cash desk. In that sense she was a senior cashier, though this was not a job title.[10]By the time she resigned on 11 April 2019, she was the longest serving cashier. She had seen numerous cash desk colleagues promoted. None of them were black or of mixed black heritage. All of them were younger than her, but two had been promoted in the 40-50 age bracket.[11]During her employment, if a shift changed and there was no supervisor present, and if she was working, the Claimant was given the task of handover to the next shift. She would inform the next shift what the next supervisor needed to know. This was not a formal arrangement. We find it more likely than not that the Claimant was given this task because she was the most experienced cashier on shift when she worked.[12]From time to time the Claimant covered for the supervisor role. She also trained new and junior cashiers.[13]Like many on the cash desk the Claimant volunteered for overtime.[14]The Claimant actively sought out training opportunities. Salary Increase 2012[15]In early 2012, management decided to award gaming and cash desk staff Case Number: 3200390/2019 5 a £1000 salary increase to recognise their contribution to the successful opening of the casino.[16]The Claimant was sent a letter in which she was purportedly awarded this increase, but her salary in fact remained the same at £23,500. As far as she is aware, she was the only person this happened to. At the time, there were other black cashiers and others with mixed black heritage and other cashiers of her age group, and she does not think this happened to them.[17]Mr Greenwood gave differing explanations for this salary increase. At paragraph 7 of his statement, he suggested that this increase was to make up some salaries to their market equivalent but not the Claimant’s because she was on the top of the salary band. Whereas in his oral evidence he recalled that the £1000 increase was general and paid to the workforce after a successful opening. He accepted the Claimant was involved in the successful opening and could not explain why she was not awarded the increase. After the Claimant immediately complained and persisted over several months, she was ultimately granted the £1000 salary increase in July 2012. We find this was an increase applied across the board and no reliable explanation has been given for why the Claimant did not receive the increase initially. STEP and PPP Bonuses from 2016[18]In July 2016, R1 introduced a bonus scheme. It had two parts both dependent on appraisal scores, known as Performance Enhancement System (‘PES’) scores (406).[19]First, the STEP programme identified high achievers. If an employee received 3 PES scores of 4 in their last three 6-monthly appraisals, then they would receive a salary increase of £1000.[20]Second, for a Personal Performance Payment (PPP) bonus, the employee’s two previous PES scores had to be at least a 3 and a 4.[21]Mrs Joyce told the Claimant that she was excluded from the STEP incentive because her salary exceeded ‘the bracket allocated’ (425). She says she was told by a manager to tell the Claimant this, though she does not remember by whom. Mrs Joyce accepted in evidence the Claimant’s salary was not in fact above the salary band.[22]On balance, despite the Respondents’ inconsistent explanations, we find the Claimant was not eligible for either the STEP payment or the PPP bonus. This is because she did not receive high enough PES Scores. The Claimant disputed this during her grievance saying she had received 3s and 4s. Miss Lewis checked an excel spreadsheet of historic PES scores and provided the Claimant’s PES scores to Mr Bailey who dealt with the grievance (512). The Claimant has not challenged this summary. We find it likely that she did not gain a PES score of 4 in the years during which she had lateness problems. On balance, therefore, we find the table of her PES scores to be correct. In 2012: 3; 2013: 2; 2013: 3; 2014: 3; 2015: 3; 2016: 2; 2017: 3. Lateness Case Number: 3200390/2019 6[23]The Claimant accepts that, in the gaming industry, attending work on time is regarded as important. The cash desk (known as the cage) is a restricted area. This means that the cashier finishing a shift cannot leave until the cashier due to replace them arrives. One cashier’s lateness therefore directly impacts upon other colleagues.[24]The employee handbooks from July 2013 and January 2017 state at paragraph 2.9: ‘Employees are individually responsible for ensuring that they arrive at work early enough to enable them to begin their work at the appointed start time…It is accepted that circumstances outside employees’ control can cause lateness, for example if a traffic accident has caused long delays on the roads. However, a high volume of traffic causing delays that is a normal or regular occurrence, or which can reasonably be anticipated, will not be regarded as a valid reason for an employee’s lateness.’ (235) It advised persistent lateness may result in disciplinary action.[25]R1 had a clocking-in system, known as TMS. The nearest clock-in machine for the cashiers was about 30 seconds to a minute away from the booths where they sat to work.[26]We find that R1 followed this practice in relation to lateness: 26.1. a manager would give an employee a negative file note (‘NFN’) for arriving at work late 3 times in 12 months, unless that person was on a final written warning when a NFN might be given for one further incident of lateness; 26.2. if an employee was 1 minute late for work, they would be docked 15 minutes’ pay; 26.3. from September 2018, as set out in the cash desk newsletter, cashiers were asked to arrive in the cash desk 2-3 minutes before the start of their shift. (R1 might wish to consider the inequity of not paying for this early arrival whereas a 1 minute late arrival resulted in docked pay of 15 minutes.)[27]In her statement and her oral evidence, the Claimant accepted that she was persistently late at times and did not have a good record on timekeeping. Her main problem was that she had to drive to work from Kent and heavy traffic and accidents sometimes led her to be late. She could not afford to take the train.[28]Mrs Joyce described her problem with the Claimant’s timekeeping as her arriving ‘just in time’ which led others to follow her example.[29]We set out below what disciplinary action was taken in relation to the Claimant’s lateness: 29.1. None in 2012; 29.2. in June 2013 a formal warning for 6 lates in 6 months (349); 29.3. on 16 November 2013 a NFN for 4 or 5 lates (393); Case Number: 3200390/2019 7 29.4. no NFNs or warnings in 2014, 2015; 29.5. on 10 June 2016 (i.e. 3 years after first warning, following an NFN) a formal warning for lateness (654); 29.6. on 15 December 2016 a NFN for 3 lates (one for 1 minute); 29.7. on 2 May 2017 a first formal warning for lateness (4); 29.8. on 13 December 2017 a final warning for lateness (one for 1 minute); 29.9. on 21 April 2018 a NFN for 1 incident of lateness of 30 minutes (recorded incorrectly by Mrs Joyce as 45 minutes); 29.10. on 20 June 2018 being investigated for lateness but not disciplined for it: one was an asthma attack and one was 1 minute early. 29.11. In total: 3 formal warnings for lateness and 1 final written warning. The Claimant accepted those warnings and promised to do better. Other Staff Disciplinaries[30]The Claimant was not alone in having a record of warnings. We do not have full information for the other cashiers working during the Claimant’s employment but from the limited material before us we do know that: 30.1. In a management handover document, Mr A Buckleton (who was promoted to supervisor in early 2018) was described as follows: ‘struggles with consistent level of customer service, several final warnings in regards to professional behaviour in the past.’ He also had anger management problems that led to conflict management training. 30.2. Miss Peneva (who was promoted to supervisor in May 2018) had a final warning for conduct issued on 21 March 2017 that expired on 20 March 2018. 30.3. Mr B Smith, who was offered promotion to supervisor in early 2018, was said to struggle ‘with organisational skills’. Training Opportunities[31]The Claimant was keen to progress. She made ‘bright spark’ suggestions. During her employment she received 7 positive file notes commending her for good work: 3 in 2017 and 3 in 2018.[32]In October 2015, she was one of two employees selected to work on a VIP cruise, because of her customer service skills and rapport with customers. The marketing department, rather than her own, selected her for this.[33]As part of her ambition, she sought training opportunities and requested these in her appraisals. Miss Lewis agreed that managers would normally Case Number: 3200390/2019 8 select for training those with the potential for promotion. First Aid Training 2015, 2016.[34]The Claimant put her name forward to do first aid training when it became available in 2015 and 2016. Four white cashiers were selected. From Mrs Joyce’s explanation in the covert recording of November 2018, selection for first aid courses appears to have been informal. We accept the Respondents’ evidence that employees were selected for courses quite near to the time of the course to avoid drop-outs and some selection depended upon who was available on that day. Table Games Refresher Training[35]On 19 May 2017 the Claimant emailed Russell Richardson of the gaming team to ask for a refresher training course or a session on the gaming tables so that she could work in the pit when available. In that email she told him of two days when she was off: the clear implication being those days were days she was available for training. She did not receive any reply. We therefore reject the contention at paragraph 24 of the Response form that the Claimant sought paid training.[36]At some point before his resignation in early 2018, Mr B Smith equally requested refresher training on gaming as he had prior experience like the Claimant. This was agreed to by Russell Richardson and the relevant managers. Mr B Smith did this training in his own time and obtained overtime shifts on the gaming tables when available. Mr B Smith is white and was not in his forties or mid-forties but younger when this opportunity was afforded to him.[37]When this difference in treatment came up in the final grievance, Mr Greenwood stated that a table assessment could be offered to the Claimant on the same basis as it had been to Mr Smith. Conflict Management Training 2018[38]Normally only security, supervisors and managers received conflict management training. But towards the end of 2018 some spare places came up. Mr A Buckleton and Mr B Smith were selected. 38.1. Mr A Buckleton had anger management problems and this was the reason he was selected. 38.2. No reason has been given why Mr B Smith was selected. 38.3. No reason has been given for not providing it to the Claimant. Documents[39]About 6 months before May 2018, in the run up to the new data regulations (GDPR), R1 began to weed out documents from personnel files relating to ‘historic personal data’. This process was ongoing. 39.1. Mr Greenwood confirmed R1 kept documents relating to Case Number: 3200390/2019 9 currently employed staff job applications and promotions. 39.2. Some recruitment documents found their way onto the Claimant’s personnel file including the two interview notes in the bundle. 39.3. At paragraph 27 of his witness statement, Mr Greenwood stated that when he looked at the grievance, ‘I read the available previous documents and could understand why other people had been promoted or appointed ahead of her, based on their track records and CVs and age did not come into it, and she didn’t give me any reason to think that age or race did come into it.’ … None of this evidence, if it existed, was before us. Mr Greenwood could not say why the documents he said he had read had not been provided in disclosure. 39.4. Miss Lewis’ evidence was that recruitment documents went into a separate ‘recruitment file’. She did not look for the documents of those successful candidates currently employed. No one in HR or R1 has looked at the successful applicants’ files for the purpose of this claim. Miss Lewis could not explain why not. There is therefore no evidence before us to support the assertions in the Response form as to the merits of the successful candidates (e.g. page 165). 39.5. We have not seen any documentary evidence of criteria for posts except on the advertisement in 2013, see later. 39.6. As to disciplinary records, Mr Greenwood’s evidence was that he looked at the records of other cash desk supervisors (paragraph 19). He asserted in his evidence that their records were not so bad. We have not seen this information and note that in relation to Mr A Buckleton and Miss Peneva it is arguably not correct (see above). 39.7. Mr Greenwood accepted that R1 had the PES scores for all internal candidates for the jobs the Claimant applied for. He accepted PES scores would have been a factor in the appointment decision (along with the interview performance). When asked why R1 had not produced comparative PES scores for the Claimant and the successful candidates to help support his contention that race and age were not factors, he stated, ‘We have chosen not to’. Cash Desk Coach/Supervisor Positions[40]Jobs on the cash desk were difficult for R1 to fill because they are regulated and require the job-holder to be licensed. There is also a fair degree of industry-specific knowledge involved. It was therefore usually internal recruits who succeeded in obtaining the cash desk coach/supervisor role.[41]In 2013 a cash desk coach role was created (later called cash desk supervisor). The Claimant applied for this role in 2013, July 2014 and in Case Number: 3200390/2019 10 November 2014. In each case she was not successful. Cash Desk Coach 2013[42]In 2013 there were three cash desk supervisor vacancies. In July 2013 the Claimant applied and was interviewed for this role, but not appointed.[43]Using the information provided by the Claimant, we find that two of the successful candidates for supervisor were white and between 40-50 years of age, the other younger.[44]The criteria set out in the advertisement were: customer service experience and focus, and 12 months’ cash desk room experience, and a PES Score of 3 or 4.[45]At this point, the Claimant had just received a warning for lateness. This was not referred to when she was told she was not successful. We find, however, it likely that it was considered in assessing her application because timekeeping was important in the industry.[46]There were also two count desk coach vacancies. The count desk is situated behind the cash desk. The Claimant was interviewed but not appointed. We do not know who was successful. At one stage however, Ms T Trezelle-Workes was promoted to count room coach. She is described (at 766) as ‘black Caribbean’.[47]The Claimant was not interviewed for the cash desk manager vacancy, which went to a white employee aged between 30-40. Cash Desk Coach July 2014[48]The Claimant applied again for the cash desk coach role in July 2014. She was interviewed on 8 July 2014 but not appointed. Two candidates were selected to be coaches: both white and between 25-35 years of age (361- 366).[49]The Claimant had no NFNs or warnings in 2014. Her PES Score for the previous year, 2013, was a 2, meaning ‘quality of acceptable customer service is inconsistent…’ (390). Her PES Score at the end of 2014 was a 3. We do not know what her mid-year score was. The interviewers will therefore have known that her last annual PES score was a 2. This was below the advertisement requirements for the job in the previous year. The interviewers will not yet have known her 2013 PES annual score.[50]The interview notes dated 8 July 2014 record ‘good interview calm demeanour good answers and examples given. Working practice does not demonstrate readiness for cage role.’[51]Each month each colleague nominates another colleague for a ‘rising star’ award. Managers moderate the nominations and select the ‘rising star of the month’. In early August 2014 the Claimant was awarded the rising star award from nominations in July 2014. Through the rising star award, colleagues pick out those amongst them whom they regard as going places i.e. having potential for promotion. Case Number: 3200390/2019 11 Cash Desk Coach November 2014[52]Four months later the Claimant had another try for promotion to cash desk coach. Again, she was interviewed on 25 November 2014. The interview notes were retained on her personnel file. The interviewers stated she was able to draw on experience to give examples and identified the ability to do more than she did in the cashier role. But both agreed that she needed to put those answers into practice in her daily work and that she had not been able to identify how the coach role would support the manager. She was not appointed.[53]The successful candidate was white European and between 30-40 years of age.[54]In November 2014 the Claimant had no recorded lateness problems in the form of NFNs or warnings. Other Positions[55]The Claimant tried for Guest Relations Supervisor in 2015, but her application was not acknowledged. By the time she sent a reminder email, it was the day the interviews took place. In this role the Claimant would have supervised staff greeting customers at the entrance. It was also lower paid. The successful candidate had been a cash desk supervisor and was white and between 40-50 years of age.[56]The Claimant applied for Compliance Risk Officer/Collator in February 2016 but was unsuccessful after interview.[57]The Claimant applied for but did not get an interview for Learning and Development Officer in August 2016. The Claimant acknowledged she did not have any qualifications for this role (410).[58]The Claimant applied for Group Collator in September 2016 and was advised she was unsuccessful. The Claimant acknowledged she had no experience in surveillance but relied on her lengthy experience in the industry and her ability to learn.[59]The Claimant applied for a trainee surveillance officer post on 12 December 2016 (415). The interview notes show she gave a good interview but did not get the role because the quality of applications was ‘high with other candidates having skills in IT, report writing and communication above her own’ (417).[60]For those other positions, where we have not set it out expressly, we do not know the age group or race of the successful candidate. December 2017 Cash Desk Supervisor Advertisement[61]A position of cash desk supervisor was advertised internally in late 2018. Only one vacancy was advertised.[62]The Claimant thought that Ms A Speiwak would be deciding the appointment. She did not think she stood a chance because this manager Case Number: 3200390/2019 12 did not like her. She therefore did not apply.[63]Ms Speiwak resigned. Mr Malik acted-up and made the appointment decisions.[64]Mr B Smith was chosen for the role but on 1 February 2018 he resigned. On the same day Mr A Buckleton, the next best candidate, was offered the post instead. Promotion of Miss Peneva May 2018[65]The staff handbook (both in 2013 and 2017) stated that vacancies would be advertised unless there was a ‘succession management programme’.[66]Mr Malik and Ms Stephens decided in about April 2018 that a further cash desk supervisor was required. They asked Miss Lewis, of HR, if they could appoint from the December 2017 recruitment round. Miss Lewis agreed.[67]During the grievance, R1 at first suggested there were 2 vacancies for the original advertisement, which was not the case. Miss Lewis’ timeline, at page 463, showed this and that the additional supervisor role was only created 2 months later.[68]What we do not accept is that at the time (or indeed now) Miss Lewis genuinely considered that Miss Peneva could be regarded as on a succession management programme. There is no evidence of this. Miss Peneva was third in the list of five candidates and therefore not an obvious candidate for promotion. And, at the time of the interviews, she had final written warning for conduct. She was not in such a programme. We consider this is an excuse Miss Lewis came up with when the Claimant brought a grievance about the breach of policy in the failure to advertise this vacancy. Ultimately, in her oral evidence, Miss Lewis accepted Miss Peneva was not in a succession management programme.[69]Mr Greenwood said in his evidence that a final written warning would preclude someone from appointment. He later said it would be highly unusual to appoint someone with a final written warning depending on the quality of the candidate. Miss Peneva’s warning would have expired in mid- March 2018, she was therefore on a final warning when interviewed and assessed.[70]Miss Peneva was promoted to cash desk supervisor without the appointment being advertised. She is white and was in her forties when she was appointed. The Claimant was very aggrieved about missing out on this opportunity. Despite her decision in December 2017, we accept that she would have applied for this further vacancy, now that she knew Ms Speiwak was not making the decisions. Of course, all potential applicants for this second vacancy were denied the opportunity to apply. Promotions Generally[71]On the cash desk, no black or black mixed heritage cashier has been promoted. By the time of resignation there were around 20 cashiers and 3 supervisors across different shifts over the 24 hours. Case Number: 3200390/2019 13[72]Two employees in the 40-50 age group were promoted to cash desk coach. The Claimant thought they were in her age group. This is consistent with her record in the evidence. Miss Peneva was also promoted to supervisor when she was in her forties.[73]Overall, we have heard of only 2 black or black mixed heritage employees gaining promotion to supervisory positions out of a staff of 560. Ms T Trezelle-Workes was promoted to count desk supervisor and Mr Bailey to the very senior managerial position of General Manager Gaming.[74]We have seen R1’s diversity figures for September 2018 that 6% of staff are ‘black British’ with a further 7% being in the category ‘ethnicity other’ which may include people of mixed Black African heritage. There were, in 2018, therefore around 39 black British employees, perhaps more depending on the ‘ethnicity other’ category. First Grievance[75]On 22 May 2018 the Claimant raised a grievance with Miss Lewis about a breach of R1’s Equality and Diversity policy giving no details (491).[76]Mr Bailey was appointed to decide the grievance. It was established the grievance was about the appointment of Miss Peneva without advertisement and the lack of bonus. Mr Bailey met with the Claimant on 22 June 2018 and investigated. He spoke to, Mr Malik the acting cash desk manager. Investigated for Lateness[77]On 21 April 2018, Mrs Joyce issued a NFN to the Claimant for being 45 minutes late. She now accepts the facts were that the Claimant had been 30 minutes late. (Mrs Joyce could have started dismissal proceedings because the Claimant was on a final written warning for lateness but did not do so.)[78]On 20 June 2018, the Claimant had a meeting with Mrs Joyce about recent alleged lateness since receiving a final warning. The Claimant accepted she was 30 minutes late on 10 April 2018. She told Mrs Joyce the reason was caring responsibilities for her grandchild. The second allegation of lateness was for arriving at her desk 1 minute late. The Claimant contended she had clocked in 1 minute early. The final incident concerned 16 June 2018. It was established this was an absence for an asthma attack that had been sanctioned by a manager. On 26 June 2018, Mrs Joyce informed the Claimant she would take no further action on these issues.[79]On balance we do not consider that Mrs Joyce investigated these matters because the Claimant had raised a complaint: at least two of them were substantial lateness that required investigation and Mrs Joyce took no further action, even though the Claimant was on final written warning. Letter of Concern about Sickness[80]On 3 July 2018, Mrs Joyce sent the Claimant a letter of concern in relation to her sickness. Case Number: 3200390/2019 14[81]We accept that Mrs Joyce says this was a standard step and not because the Claimant had raised her grievance. Mrs Joyce accepted in the grievance that it should have been removed from the file because one of the absences was sanctioned by a manager and should have been recorded as a voluntary early leave (591). First Grievance Outcome[82]Mr Bailey’s outcome letter (511) of 4 July 2018 informed the Claimant that: 82.1. HR had been consulted and it was reasonable to use candidates from the earlier exercise because it was within a few months. 82.2. He summarised the Claimant’s salary rises and PES scores and established she had not therefore qualified for the STEP or PPP bonus.[83]The Claimant appealed that decision. She objected to Ms Stephens dealing with it and it was passed to Mr Whitmore, Head of Live Table Gaming. The Claimant objected to him because he was junior to Mr Bailey and therefore was not, she argued, in a position to overturn the decision of his superior. This objection was not accepted.[84]On 7 August 2018 Mr Whitmore sent his outcome letter (553). He acknowledged that the Claimant had acted-up as supervisor ad hoc, as had other colleagues. He did not uphold her appeal, coming to the same conclusions as Mr Bailey. Miss Djurisic approach 9 August 2018[85]Miss Djurisic was seconded to manage the cash desk. She heard from Mrs Joyce that the Claimant was arriving just in time or late. She knew that the Claimant was on a final written warning. She wanted to make it clear to the Claimant that she should not be late.[86]Miss Djurisic spoke to the Claimant in the corridor—a place where people would come and go from the cash desk.[87]Miss Djurisic did not threaten the Claimant with dismissal. She said she did not want to lose the Claimant through lateness.[88]The Claimant said to Miss Djurisic that she was arriving on time. Miss Djurisic responded that she was arriving ‘just in time’. We find this is likely what Mrs Joyce had told her, as it was Mrs Joyce’s problem with the Claimant. We note arriving just in time is not arriving late. Miss Djurisic told the Claimant she should arrive 2-5 mins early for her shift. In this regard, on balance, Miss Djurisic may well have said to the Claimant, in an effort to make her point, that she was ‘taking the piss’.[89]In this effort to make her point, Miss Djurisic came across as more than direct but aggressive and the Claimant felt intimidated by her comments.[90]We find, however, on balance that Miss Djurisic did not say you are a Case Number: 3200390/2019 15 ‘grown-ass’ woman. We do so because this is not recorded in the Claimant’s near-contemporary note of the conversation: a note in which she attempted to record what had been said. This was such an unusual comment that we consider the Claimant would have recorded it at this time, especially if she had been offended by it as she contends. We find Miss Djurisic probably said words the gist of which were: you are a grown woman, come in on time. This was again to make the point to the Claimant that she was sufficiently experienced to know that coming in on time was important.[91]We find on balance that, at this stage, Miss Djurisic did not know that the Claimant had complained about discrimination. We accept her evidence and she had not been interviewed. ACAS EC Certificate[92]On 14 August 2018 the Claimant first contacted ACAS Early Conciliation. She was provided with a certificate on 14 September 2018 when it ended.[93]By this point the Claimant had TU representatives at her grievance meetings. She had also used online resources. She said she understood the ACAS EC period was either to reach a settlement or bring a claim. She had access to Trade Union advice but not legal advice. She had spoken to Citizens Advice at a brief advisory session. But she could not afford a lawyer. Incidents at work[94]On 17 August 2018 Mr A Buckleton, now a supervisor, counted the Claimant down as she was reaching her desk. She had a reputation for arriving at work just on time. We find it likely this was why he was counting her into her desk. While it was likely meant as a joke, we accept the Claimant was upset by it.[95]The Claimant observed other cashiers arriving between 1 minute before and 1 minute after their shift started and not being spoken to.[96]The Claimant felt at this time that she was being watched and micromanaged. She contends that supervisors were standing behind her watching what she was doing. She recalls Miss Peneva pulling her up on how she had packaged some £20 notes but when the Claimant asked if she should do it differently Miss Peneva said not to do so and walked away. (The Claimant referred to this incident in a what’s app discussion with a colleague on 20 August 2018). The Respondents’ witnesses pointed out that the cash desk was a small space and that a supervisor would often stand behind the cashiers at the booths. We consider the Claimant may have become sensitive to management at this point because she knew she had made a complaint but that these incidents were not because she had raised a complaint. They were more likely, in our judgment, the approach of a relatively new supervisor, Miss Peneva. 29 August 2018 – 5 November 2018 Off sick[97]On 29 August 2018 the Claimant was signed off work by her GP with Case Number: 3200390/2019 16 stress. This period of sickness lasted until 5 November 2018.[98]On 18 September 2019 in the cash desk newsletter all cashiers were requested to attend 2-5 minutes before the start of their shift. Second Grievance[99]On 5 October 2018, the Claimant then wrote to Mr Greenwood seeking to appeal Mr Whitmore’s decision on the grievance appeal. On 11 October 2018 Mr Greenwood refused to hear an appeal against the appeal because that was not part of the procedure.[100]However, Mr Greenwood noted that the Claimant had raised new matters in her letter to him and he required these to be investigated by Mr R Smith, Group Operating Director (561). This has been referred to as the second grievance. The Claimant provided further details for it on 11 October 2018.[101]In this second grievance the Claimant alleged that: 101.1. she had been victimised, harassed, and bullied since raising her grievance by Mr Malik, Miss Djurisic and Mrs Joyce: she gave detailed examples; 101.2. she was facing ongoing discrimination in promotion; 101.3. R1 was looking to get rid of her; 101.4. she disagreed with the reasons for Miss Peneva’s promotion.[102]The Claimant accepts that Mr Smith listened to her in his investigation and adopted a careful approach. He met with her on 22 October 2018 in a meeting lasting from 3pm to 6.30pm. He interviewed Miss Djurisic on 24 October 2018 about the matters she raised including the allegation that she had used the ‘grown ass woman’ phrase. He interviewed Mrs Joyce on 29 October 2018. Mrs Joyce said she knew a grievance had been made and the cash desk was small and that the cashiers talked but she did not know what the grievance was about. Mr Smith asked her whether she had harassed the Claimant or treated her differently or bullied her or victimised her (592). Mr Smith interviewed Mr Malik on 31 October 2018. He asked, ‘were you aware that Rita felt you had discriminated against her’. He also asked whether Mr Malik had bullied her. Mr Malik said no and that he was disappointed to hear those allegations. (595) Mr Smith stated in the outcome letter that he also spoke to Mr R Richardson the CSM L&D Gaming who explained how Mr B Smith had been trained and that he had not been approached by any other cashiers ‘for a similar situation’.[103]There is no real dispute that the cash desk was small, and discussions happened and that by this stage (end October 2018), in general terms, Mrs Joyce, Miss Djurisic and employees on the cash desk knew that the Claimant had made a discrimination complaint. Second ACAS Certificate 26 October 2018[104]Meanwhile, on 26 October 2018 the Claimant had contacted ACAS Early Case Number: 3200390/2019 17 Conciliation again. A certificate was provided on 16 November 2018, the day after Mr Smith’s outcome letter see below. Return to Work 5 November 2018[105]On 5 November 2018, the Claimant returned to work and had a return to work interview with Miss Djurisic. The Claimant told her that the GP had recommended a phased return, but Miss Djurisic established there was no paperwork to support this and she asked the Claimant to obtain the necessary paperwork from her GP. Once it was forthcoming a phased return was allowed.[106]We find Miss Djurisic has a direct approach to management and this is the approach she adopted here. She was happy that the Claimant was back because the team was short-staffed. She was also relatively distant from the cash desk team.[107]We make the following findings about the Claimant’s return to work: 107.1. On day 1 she likely was ignored by her by her two colleagues and Mrs Joyce merely responded to her greeting. But Mr Buckleton did not ignore her. 107.2. Mrs Joyce did not greet her with any more than an ‘alright’ on day one because of the grievance harassment bullying allegations made. 107.3. Overall the atmosphere was initially uncomfortable for all. The Claimant was also quieter than usual. 107.4. However this frosty atmosphere soon melted, and cash desk workers reverted to relatively friendly communication. We rely on the Claimant’s covert recording of 27 November 2018 as evidence of this. 107.5. On balance therefore we do not agree either that the Claimant was shunned for days nor that she was not speaking to her colleagues. 107.6. Miss Djurisic was a distanced manager, as was her usual approach. Second Grievance Outcome Smith[108]Mr Smith sent the Claimant his detailed outcome letter on 15 November 2018. He rejected the Claimant’s grievance giving reasons for each issue.[109]The Claimant appealed the outcome of the second grievance by letter of 20 November 2018. Mr Greenwood Appeal Meeting 28 November 2018[110]Mr Greenwood was employed by Aspers Group company, but he had authority to hold grievances for R1. He read the documents from Mr Case Number: 3200390/2019 18 Smith’s investigation and his outcome letter.[111]On 28 November 2018 Mr Greenwood held a meeting with the Claimant and her TU representative. Miss Lewis also attended.[112]Mr Greenwood informed the Claimant that he did not consider her discrimination claim was substantiated.[113]Mr Greenwood had noted there were two new complaints in the Claimant’s appeal letter, points 12 and 13, about matters that had occurred since the return to work on 5 November. Mr Greenwood did not investigate these apart from asking the Claimant about them. Point 12 alleged continued harassment, bullying, and unprofessional behaviour on her return to work. When asked about it at the meeting she referred to being ignored by Mrs Joyce and two colleagues on the first day. And Mrs Joyce only saying ‘yeah alright’ in response to her greeting. She told Mr Greenwood that this was very different behaviour than before her grievance where one of her colleagues would hug her and have a pet name for her. He expressed the view it was unsurprising if colleagues were not as friendly towards someone who had made a complaint of discrimination about them. She also told him that Miss Djurisic had demanded written proof of her GP advice on a phased return. He said that this was normal practice.[114]He pointed out what he called ‘the elephant in the room’ that the Claimant was on a final written warning for lateness. He considered that this precluded her promotion. The Claimant said she had never been informed about this in previous job application feedback.[115]On games table training, the Claimant told Mr Greenwood, in response to Mr Smith’s investigation, that she had asked Mr B Smith how he had got the training. She spoke to Mr Whitmore and, on his direction, asked Mr Richardson by email for the same training, but she did not receive a response. Mr Greenwood indicated he would take that away and have a look at it. He did not do so, despite noting to Miss Lewis, in a break, that it was ‘a bit interesting’ (807).[116]Mr Greenwood accused the Claimant of bringing a tribunal claim. There followed an ‘oh yes you did; oh no I didn’t’ exchange between them, until Miss Lewis corrected Mr Greenwood.[117]We find that the Claimant did not agree not to use the ‘discrimination’ word during this meeting. In fact, Mr Greenwood pushed her into not using that word and pressured the TU representative not to do so. When, later in the meeting, the Claimant referred to what had happened as discrimination, Mr Greenwood intervened warning her that she was ‘using the d word’ again. He made it clear that he did not wish to hear any further argument that she had been discriminated against.[118]At the end of the meeting, Mr Greenwood told the Claimant that if she made any further discrimination complaints that were not supported with evidence then the company might take a different approach. The recording transcript records him as saying: ‘please don’t take this as a threat or as a warning, just a bit of advice, you’ve made a number of serious allegations … most if not all of these things I don’t believe are substantiated. If you Case Number: 3200390/2019 19 make those kinds of allegations in the future, they need to be backed up and supported with evidence because, it’s not a threat, but if there’s a belief that an employee has made up allegations against other employees whether they’re colleagues or senior people which, … can cause stress and upset for other people. The company might take a different view and treat what you’ve put in writing in a different way.’ Having considered his oral evidence and the context, we unanimously find, ‘different way’, it was clear that Mr Greenwood was referring to disciplinary action. Although he repeated that his words were not a threat, we find it was plain they were in fact a threat to the Claimant. His aim was to make it clear to the Claimant that she might be disciplined for a discrimination complaint the next time if R1 took the same view that it was not substantiated. This was also his aim during the meeting when he discouraged the use of the ‘d[iscrimination] word’.[119]Overall, having listened to the recording of the meeting, we find that Mr Greenwood was not aggressive but was condescending towards the Claimant.[120]The Claimant made a covert recording of the meeting with Mr Greenwood. During private breaks: 120.1. Mr Greenwood said to Miss Lewis ‘One of the benefits of getting older I keep getting left out I’ve been doing … I’ve been doing this. It’s like Danny La Rue … I’ve been doing pantomime for 500 years!’ He used a whimpering voice in this exchange. Unanimously we do not accept Mr Greenwood’s explanation that he was referring to himself in this exchange. The statement ‘I keep getting left out’ does not make sense if he was referring to himself. He was the HR director and there was no context for him being left out. This was more obviously a reference to the Claimant’s complaint that she had been doing the job for years but kept getting left out of training and promotions. Although this comment was not directed at the Claimant, it clearly showed that Mr Greenwood’s attitude was to mock her complaint of agerelated discrimination. 120.2. Miss Lewis stated privately to Mr Greenwood she thought the complaints malicious and that the Claimant wanted money. Mr Greenwood did not agree with this. 120.3. We agree with the Claimant that Miss Lewis in the meeting was more than a scribe but gave her opinion to Mr Greenwood as can be seen in these private exchanges.[121]Mr Greenwood did not uphold the appeal and confirmed the outcome of the second grievance in a letter of 14 December 2018. It does not appear from his letter that he investigated whether the Claimant had contacted Mr Richardson, but he informed her that ‘for fairness’ she could be offered games table training like Mr Smith (670). He stated, ‘I think it would be sensible for a dealer assessment to be undertaken to evaluate your current performance level and a training plan created accordingly’. He agreed in his oral evidence that this was known as a ‘table assessment’: a test of Case Number: 3200390/2019 20 dealer skills at the gaming table. Further Issues at Work Chebetlova Reprimand[122]Mrs Joyce did sheepishly reprimand Ms Chebetlova for being a minute late. She had changed her approach to reprimanding staff in public because of the Claimant’s complaint. She was awkward in doing so because Ms Chebetlova was not normally late.[123]The Claimant’s phased return ended on about 5 December 2018. Short Changeover Shifts[124]Mrs Joyce gave the Claimant 4 short changeover shifts in the December 2018 rota. This was more than other colleagues. The Claimant would not have expected more than 2 in this month. A short changeover shift means that the next shift is 11 to 12 hours after the end of the first. This gives little time to travel home, rest and return to work. They are disliked by cashiers. 124.1. The majority of the Tribunal (Ms Alford and EJ Moor) have reached the conclusion that this was a subtle way of punishing the Claimant for having complained. They take into account that the allocation of 4 shifts was twice what was normally expected and that these shifts were disliked. They weigh in the balance that Mrs Joyce was plainly upset by the discrimination complaint when asked about it at interview and likely took offence. Although Mrs Joyce gave the Claimant a holiday on her birthday in December, in their view this was because holidays were normally given to workers on their birthday. One of the reasons given to us for this rota was that the Claimant was on a phased return, which was not the case after 5 December. In their judgment, a partly incorrect explanation makes it less reliable and gives rise to the inference that the complaint was the reason for this treatment. 124.2. Mrs Legg considers that this shift allocation was not a deliberate punishment. She weighs more heavily that Mrs Joyce gave the Claimant two days off on her birthday in mid- December when holidays were not normally given in December and considers therefore that the 4 shifts came about because of the difficulty of organising the rota. She also weighs heavily that the covert recording of late November shows that Mrs Joyce was accommodating to the Claimant about training and considers on balance that she was not therefore likely to have punished the Claimant in her allocation of shifts. Handover[125]On 19 and 20 December 2018, the Claimant was not given handover information when a supervisor was not present. It was passed to more junior employees. Case Number: 3200390/2019 21 125.1. The majority of the Tribunal (Ms Alford and EJ Moor) consider, on balance, that this was because of the Claimant’s discrimination complaint. It was a personal complaint against Mrs Joyce at least and colleagues likely knew about by then and understood that Mrs Joyce was upset by it. They consider the weightiest factor here is the prior practice that the Claimant was given the handover information if she was in work. This was because she was the longest-serving and most experienced. It was therefore unusual and undermining of her not to be given this information. This was a change in practice that, to them, was marked and odd. The inference arose therefore that colleagues were subtly leaving her out because she had made a discrimination complaint against one of their own. 125.2. Mrs Legg weighs most heavily the covert recording of late November in which staff appeared to be getting on amicably. She considers that not being provided with the handover information on only two days is insufficient a change from which to draw any inference. Drinks[126]On 19 and 20 December 2018, all the other colleagues working in the cash desk, two cashiers, Miss Peneva and Mrs Joyce, discussed going out for a drink at Las Iguanas. The Claimant was the only one in the room not included. This was not a formally organised works drink, but we all consider it was a drink among work colleagues to which the Claimant would normally have been invited. We all agree it was at the very least insensitive to discuss the arrangements in front of her when she was not invited. We all conclude that this exclusion was because the Claimant had complained of discrimination. While working relationships were relatively amicable, the team did not wish to socialise with someone who had complained of discrimination against Mrs Joyce personally. This was a way to make their displeasure over the complaint felt. Difficult customer[127]On 21 December 2018 the Claimant dealt with a difficult customer at the cash desk. She was used to having to do so. He may well have been abusive by raising his voice and arguing.[128]We accept the evidence of Miss Peneva and Mrs Joyce that they observed this but did not interfere because to do so could have exacerbated the situation and undermined the Claimant in front of the customer. This was their usual practice. Miss Peneva told us, and we accept, that the Claimant was really good at calming down difficult customers, and she did so on this occasion. Miss Peneva kept an eye on the situation to make sure she could see any sign, like eye contact, from the Claimant that she needed help. The Claimant did not give such a sign. It was not until after another customer that the exchange took its toll and the Claimant became upset. She left the cash desk in tears. Mrs Joyce, upon hearing this, went to her, and asked if there was anything she needed. The Claimant asked to go home early and Mrs Joyce agreed. Case Number: 3200390/2019 22[129]We are unanimous that on balance Mrs Joyce and Miss Peneva offered the right level of support here. While in the past Mrs Joyce might have been friendlier towards the Claimant when she went to see her, she nevertheless acted appropriately by going to see her, by asking her what help she wanted and by allowing her to go home. Shredding[130]Miss Peneva directed that the Claimant should do some shredding on 21 December 2021. We considered whether this was another subtle way of punishing the Claimant by giving her a menial task. But, on balance, we all agree that this instruction to shred was not because the Claimant had made a complaint. We take into account the following matters: shredding had to be done within a certain time; there was a fair amount to do; everyone did shredding including managers; and this was just one occasion on which the Claimant was asked to shred. The Claimant objected to being asked to do shredding in her witness statement, but changed this in her oral evidence to objecting to the time when she was asked. The Claimant was not clear in her evidence that they were busy at the time: she said ‘ideally’ we were busy, which was not a memory of being busy. It was not clearly, therefore, an inappropriate time to be instructed to do so. Sickness Absence and Return to Work Discussions[131]From 29 December 2018 the Claimant was off sick from work with stress.[132]On 14 February 2019 the Claimant presented a Tribunal claim for age and race discrimination and victimisation and harassment.[133]On 18 March 2019 she attended an occupational health meeting. On 25 March 2019 she attended a welfare meeting off site with Miss Lewis. By this time R1 was aware of the claim. In the light of the tribunal claim and prior grievance, they discussed the arrangements for the return to work. The Claimant suggested other members of staff be trained on bullying and harassment This was rejected because Miss Lewis considered the grievance closed and no member of staff had been found guilty of such behaviour. She referred to the polices that existed at work in equal opportunities and conduct and the training of managers in mental health.[134]On 2 April 2019, a second welfare meeting was held at short notice because of the expiry of the Claimant’s fit note. The Claimant was accompanied. Miss Lewis confirmed a 12-week phased return. She proposed a return on 11 April and that the Claimant was paid ‘emergency leave’ for the period not covered by a fit note. Two options were discussed: either a return to the original role or a new role on the gaming tables. This latter role would have meant the Claimant did not have to work with those she had complained about.[135]For a return to work at the cash desk, Miss Lewis proposed that the cash desk team would be reminded of the importance of working together professionally. The Claimant would be provided with a buddy who could be a manager in another department. Miss Lewis referred to the lateness issue and the prior warning. She did so to explain that managers would Case Number: 3200390/2019 23 still have to manage lateness.[136]For alternative work at the gaming tables, Miss Lewis proposed that the Claimant would do 6 weeks of training. This was an insult to the Claimant who had a great deal of experience on gaming tables, albeit some 7 years before. She accepts that she would have had to learn the particular approach of R1, but we accept her evidence that this would not have taken anything like 6 weeks. She contends that normal training would start with a table assessment (as Mr Greenwood had proposed in the grievance outcome); or the kind of training Mr B Smith received which took no more than a few hours; or, at the most, the 2 weeks of training that R1 admits would be provided to an experienced croupier starting work with R1.[137]The Claimant wrote to Miss Lewis 5 April 2019. She explained how she felt about the proposed 6 weeks’ training. She told Miss Lewis she considered it to be insulting. She also made the point clearly that it would be treating her differently from both Mr B Smith and a new starter with her experience[138]In Miss Lewis’ reply of 9 April 2019 she refused to adjust the length of the training period. She relied on there being a phased return (but did not explain how the standard 2 weeks for a new starter became 6 weeks even with a phased return) and she tried to distinguish Mr B Smith’s situation.[139]Why, then, did Miss Lewis state that the alternative role would start with 6 weeks of training? In her evidence to us she said if it turned out it was not necessary it could have been reduced. But this is not what she told the Claimant in her reply. Miss Lewis ignored the two plainly comparable situations. As a matter of fact, Mr B Smith could not be distinguished from the Claimant: he too was a current cashier with experience. In the past, the Claimant’s request had also been for unpaid training. As a matter of fact, the new starter with experience, was probably less of a comparator, having no experience with R1 at all. But even if their 2 weeks of training had been applied, a phased return would not have turned it into 6 weeks. We do not accept Miss Lewis’s evidence that she was trying to ensure the training was a success. If this had been the case we consider, on hearing the Claimant’s objections, she would have altered her initial proposal along the lines of her oral evidence to us: starting with Mr Greenwood’s proposal of a table assessment and seeing how the Claimant went. She told Mr Greenwood she thought the complaint malicious. We have concluded, on balance, that Miss Lewis used the training as an obstacle to the Claimant’s return because she thought the Claimant had made a malicious complaint. Resignation On 11 April 2019 the Claimant resigned by letter.[141]We find her reasons for doing so from her letter were: 141.1. she felt the 6 week training course for the table games option was demeaning, belittling, and insulting and was an act of discrimination in itself compared to the treatment of Mr B Smith who had only a few hours of training. It was the equivalent to a new trainee. A new starter only received 2 weeks’ induction. A Case Number: 3200390/2019 24 table assessment test would have been appropriate to determine ability, before imposing 6 weeks’ training; 141.2. she did not consider it was Miss Lewis’ intention to look into the recent issues, by which we find she meant point 12 of her last grievance and her contention that she had been victimised on the cash desk because Miss Lewis had reiterated that the matter was closed; 141.3. she considered there was ‘discriminatory treatment’ from ‘cash desk colleagues’ which had continued and gave her no confidence in returning. This was the treatment she complained about since her grievance that we have set out above; 141.4. no assurance had been given about training the individuals implicated and her request that there be bullying and harassment training within the company had not been acknowledged.[142]In addition, while not referred to expressly in her resignation letter, we unanimously find that the alleged discrimination in promotions was also in the Claimant’s mind when she resigned. We rely on her oral evidence in cross-examination where she referred to the start of her considering that her employment was becoming ‘intolerable’ was when she ‘realised’ she was being discriminated against in promotions and submitted her grievance.[143]We also find that the Claimant very likely had in mind Mr Greenwood’s approach to her grievance given that it was so striking: his threat not to bring further complaints of discrimination and his suppression of the ‘discrimination’ word during the meeting. In her claim form of 14 February she refers to his indirect threat of counter-action if she went to a tribunal and that she found his approach bullying, intimidating, and harassing (paragraph 63). And, at paragraph 93 of her Amended Claim form, she contended that she resigned in response to the conduct set out. We therefore find Mr Greenwood’s conduct at the meeting was also one of the matters that caused her to lose confidence. Holiday[144]All agree the holiday year was the calendar year. The Claimant was paid for her accrued but untaken holiday for 2019. She claims 4 days in respect of 2018 when she had booked holiday but was sick. She agreed in her evidence that she had taken 4 weeks’ paid holiday in 2018 in addition to these four days. Submissions[145]Both representatives gave us succinct and helpful oral submissions. We summarise their main points below.[146]Mr McFarlane, for all Respondents, started at the end and argued that there was no constructive discriminatory dismissal here. His main argument was that nothing had happened after the last incident at work on Case Number: 3200390/2019 25 21 December 2018 which amounted to a breach of contract or last straw. He argued that by continuing to receive pay until early April, that was too much of a delay and was affirmation. The welfare meetings were to achieve a successful return to work while being consistent with the grievance outcomes. The Claimant’s objection to the training offered was inconsistent with her claim in the past that she had not received sufficient training. This was not a last straw.[147]Mr McFarlane acknowledged that Mr Greenwood’s handling of the grievance could be criticised but what he had said in the covert recordings was not directed at the Claimant. His aim was to find a successful way forward. The Claimants TU representative appeared to agree this was not a discrimination case.[148]On the direct discrimination case, the logic of the Claimant’s case on promotion had to be that there was a policy or practice of discrimination and she had not shown that here. The appointment of Miss Peneva was in relation to a job round for which the Claimant had not applied. This decision could not be said to have been to ensure the Claimant failed. He relied on the Claimant’s poor timekeeping as the more obvious explanation for why in the past she had not been successful. He made detailed submissions on why the particular complaints were not race or age related.[149]In relation to victimisation he asked us to weigh heavily the covert recording in November which showed staff relationships were amicable despite the investigation of the grievance. The Claimant was sensitive to matters that arose at work because she had raised a grievance.[150]He argued that much of the claim was out of time and could not be revived by a new ACAS EC certificate. There was no explanation for any delay and during much of the period the Claimant had access to TU advice. The weeding of the personnel files by R1 meant that they were prejudiced in not having available all documents. He acknowledged that the dismissal claim was in time.[151]Mr Starcevic for the Claimant gathered the direct discrimination claim into 4 strands: bonus/incentives; promotions; training; and treatment in lateness and absence.[152]He argued there was a pattern here of failure to succeed although the Claimant was clearly very experienced and long-serving and paid higher to recognise that. She was rejected for promotion even when voted a ‘rising star’. Her lateness had not been referred to as a problem in feedback and anyway others with chequered careers had been promoted. It was remarkable there were no black supervisors in the cash desk. The only similar promotion was that of Ms Trezelle-Workes, which did not fit with the demographics produced. When there was a promotion to someone in authority this was consistently a white, younger person. He reminded us that evidence of race or age discrimination is usually not obvious and it was a question of what inference could be drawn from the facts. He argued the facts here allowed us to draw such an inference of a arguable case which led to the burden of proof being reversed. R1, he contended, could not then show that in this case the decisions made were Case Number: 3200390/2019 26 in no way tainted with race or age. Very often no explanation had been given. R1 had not even provided us with the CVs of the successful candidates.[153]On the time point Mr Starcevic relied on the direct discrimination complaint here being about a ‘state of affairs’ and as such a continuing act. There did not have to be an express policy. It was right for the Claimant to pursue her complaints internally before bringing a claim. From then on R1 could have preserved documents and there were clearly some in existence it had simply chosen not to produce.[154]On victimisation he argued that Mr Greenwood’s approach clearly was to threaten the Claimant. We could rely on his tone, his rubbishing of the Claimant’s genuine complaints. As in St Helens (see below), so here Mr Greenwood had crossed the line from an appropriate expression of his view that the grievance did not succeed to inappropriate pressure and threats. The manner in which the grievance was handled could still amount to a detriment even if the outcome was correct, he referred to Deer (see below).[155]He argued there was a discernible change in attitude towards the Claimant after her grievances which was because of the grievance. This was a closed environment: the team was likely to know.[156]On harassment he repeated, effectively, his submissions and drew our attention in particular to the complaint against Miss Djurisic and Mr Greenwood’s mocking of age.[157]On unfair dismissal he went through the statutory test and argued there were two last straws here: the 6 weeks’ training and the decision not to coach staff on bullying even when the continuing claim had not been investigated. Nor was there any affirmation here: the Claimant with the Respondent was still discussing her options. It was not an affirmation to see what the Respondent could propose post-grievance. Law Unfair Constructive Dismissal
[1]In total the award is £74,113.65 (that is £61,702.47 after grossing-up. (£8,041.20 plus the tax-free element of £30,000 have not been included in the grossing-up calculation). This total is broken down as follows as between the Respondents as follows:a. The First Respondent must pay to the Claimant a basic award of £6,787.47 (i.e. £5,512.50 plus £1,274.97 for grossing-up).b. The First Respondent must pay to the Claimant loss of overtime plus interest of £2,739.44.c. The First Respondent and the Third Respondent are liable jointly and severally to pay aggravated damages plus interest of £6,855.01 (i.e. £5559.84 plus £1,295.17 for grossing-up).d. All four Respondents are liable jointly and severally to pay an award of financial loss (not including loss of overtime), injury to feelings and interest of £57,731.73 (i.e. £47,890.69 plus £9,841.04 for grossing-up). Case Number: 3200390/2019[2]The calculation of those awards is set out in the Appendix attached.
Issues
[3]Recoupment does not apply, the sum for loss of earnings having been made in respect of the discrimination claims. Employment Judge Moor Dated: 22 March 2022 Case Number: 3200390/2019 APPENDIX 1 CALCULATION Effective Date of Termination 11 April 2019 £ Agreed gross weekly wage: £552.98 Agreed net weekly wage £413.30 Pension contribution 3% gross.a. A. Basic Award: 7 x 1.5 x 525.00 (statutory maximum) 5,512.50b. B. Discrimination: Financial Loss(i) Loss of Overtime from 1.6.17 to 11.4.19 at 1 day per month x 8hrs x 13.00 gross = £104 gross £70.72 net per shift not including 29 August- 5 November 2018 i.e 2 months 12+12+8.5 = 32.5 x 70.72 2,298.40 [No ACAS uplift](ii) Loss of net pay through sickness absence 29.12.18 to 11.4.19 The pay date was the end of the month. Gross Pay received in Jan, Feb, Mar, April = 2450.99 What expected: £552.98 pw gross. Number of weeks = 14.7 Total gross expected 552.98 x 14.7 = £8128.80 Difference 8128.80- 2450.99 = 5677.81 gross Net at 75% (as suggested in Claimant’s skeleton) = 4,258.36 ACAS Uplift 10% 425.84(iii) Loss of Earnings from 11.4.2019 Net loss of earnings 153 x 413.30 = 63 234.90 Gross loss of £500 + £500 + £500/4 to reflect pay rises for 2020, 2021 and 2022 = 1125 Net gross loss pay rises at 75% = 843.75 Total net loss earnings = 64, 078.65 Case Number: 3200390/2019 Less UC and mitigation of (49,793.50) – 1/3 of march projection in schedule (502.21) = 49291.29 Total net loss of earnings = 14,787.36(iv) Loss of employer pension contributions At 3% gross according to method in Claimant’s skeleton Net loss income plus 634 UC = 15,421.36 Grossed up by 125% = 19276.7 3% of gross = lost pension = 578.30 Adjustments to iii and iv: Loss of earnings and pension reduced by 10% 14,787.36 + 578.30 = 15365.66 – (15365.76) 13,829.09 ACAS Uplift on loss of earnings and pension 10% = 1,382.91(v) Loss of statutory rights 500.00 Acas uplift 10% = 50 50.00 Total past loss of earnings adjusted (B) 22,744.60c. C. Future loss of earnings 19.3.22 to 28.3.22 Total gross pay if still employed today 28704 + 1500 = 30204 Net annual = 30204 x 75% 22653 Weekly 435.63 x 1.2 weeks = 522.76 Less 1/3 projected March earnings (502.21) 20.55d. D. Interest on financial loss (i) Loss of overtime from 1.6.17 From midpoint: agreed days = 1751 8% x (1751/365)/2 = 19.189% x 2298.40 441.04 (ii) Loss of adjusted pay while sick From midpoint: agreed days = 1203 8% x (1203/365)/2 = 13.184% 13.184% x [4258.36 + 425.84] = 617.56 (iii) Loss of adjusted earnings and pension from 11.4.18 to 18.3.22 From midpoint: agreed days = 1072 days 8% x (1072/365)/2 = 11.748% x 15212 = 1,787.10 Case Number: 3200390/2019 Total interest on financial loss 2,845.70e. E. Injury to Feelings 18,000.00 ACAS uplift 10% 1,800.00 19,800.00f. F. Aggravated damages 4,000.00 Add in ACAS uplift 10% 400.00 4,400.00g. G. Interest on Injury to Feelings From 1 December 2018 = 1203 days agreed 8% x 1203/365 = 26.36% 26.36% x 19800 = 5,219.28h. H. Interest on aggravated damages from 1 December 2018 26.36% of 4400 = 1,159.84 Total award before grossing up: A+B+C+D+E+F + G + H = 5512.50 + 22,744.60 + 20.55+ 2845.70 + 19800 + 4400 + 5219.28 + 1159.84 = £61,702.47 The awards to which grossing up does not attach are those in italics: The loss of overtime and loss during sickness absence as adjusted plus interest: 2298.40 + 441.04 + 4,258.36 + 425.84 + 617.56 = 8,041.20