Mrs C Fosu v Newham Health Collaborative CIC Ltd: 3200480/2024

EMPLOYMENT TRIBUNALS

Case No 3200480/2024

Between

Mrs C FosuClaimant

Newham Health Collaborative CIC LtdRespondent

Before

Employment Judge C Lewis

Members

Mrs T Jansen

Mrs B K Saund

In person for claimant

Mrs A Kaur Singh - solicitor for respondent

Date 12 May 2025

REASONS

By a claim presented on 28 February 2024 following a period of ACAS early conciliation from 20 December 2023 to 31 January 2024 the Claimant brought claims for

The Issues

[1]Detriments on the grounds of public interest disclosures. Constructive Unfair Dismissal

[3]For racial discrimination in accordance with s13 of the Equality Act 2010 and

[4]Victimisation in accordance with s27 of the Equality Act 2010. The Issues 1. The issues the Tribunal had to decide are set out at pp93-105 of the bundle – in Employment Judge Overton’s Preliminary Hearing summary from 18 December 2024. A further list of issues appeared at pages 107-111 of the bundle and is described in the index as “final”, however it was agreed that the issues we had to decide were those set out in the Preliminary Hearing summary. 1. The Issues 1. The issues the Tribunal will decide are set out below.

[1]Employment status1.1 Was the claimant an employee of the respondent within the meaning of section 230 of the Employment Rights Act 1996?

1.2 Was the claimant an employee of the respondent within the meaning of section 83 of the Equality Act 2010?

1.3 Was the claimant a worker of the respondent within the meaning of section 230 of the Employment Rights Act 1996?

[2]Time limits2.1 Were the discrimination and victimisation complaints made within the time limit in [section 123 of the Equality Act 2010? The Tribunal will decide:2.1.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates?

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

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

2.1.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:2.1.4.1 Why were the complaints not made to the Tribunal in time?

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

2.2 Was the constructive unfair dismissal complaint made within the time limit in section 111 of the Employment Rights Act 1996? The Tribunal will decide:2.2.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the effective date of termination?

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

2.2.3 If it was not reasonably practicable for the claim to be made to the Tribunal within the time limit, was it made within a reasonable period?

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

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

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

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

[3]Unfair dismissal3.1 Was the claimant dismissed?3.1.1 Did the respondent do the following things:3.1.1.1 Fail to give the claimant any shifts for 5 months through the Lantum platform or with the Roving team, despite the claimant having up-to-date training.

3.1.1.2 Disclose to the claimant in its response to her Subject Access Request false and baseless allegations about the claimant’s work and nursing practice including

3.1.2 Did that breach the implied term of trust and confidence? The Tribunal will need to decide:3.1.2.1 whether the respondent behaved in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the claimant and the respondent; and

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

3.1.3 Was the breach a fundamental one? The Tribunal will need to decide whether the breach was so serious that the claimant was entitled to treat the contract as being at an end.

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

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

(i) reference to the claimant being disruptive,

(ii) reference to accessing patients’ records with someone else’s login details

(iii) making comments about the claimant’s Human Resources file being reviewed with a view to seeing if the claimant could make an in-time Employment Tribunal claim and

(iv) a comment about there being a risk of ‘negative impact based on previous experience’ if the claimant was to work for the Roving team.

3.2 If the claimant was dismissed, what was the reason or principal reason for dismissal - i.e. what was the reason for the breach of contract?

3.3 Was it a potentially fair reason?

3.4 Did the respondent act reasonably or unreasonably in all the circumstances, including the respondent’s size and administrative resources, in treating that reason as a sufficient reason to dismiss the

3.5 The Tribunal’s determination whether the dismissal was fair or unfair must be in accordance with equity and the substantial merits of the case.

[4]Remedy for unfair dismissal4.1 Does the claimant wish to be reinstated to their previous employment?

4.2 Does the claimant wish to be re-engaged to comparable employment or other suitable employment?

4.3 Should the Tribunal order reinstatement? The Tribunal will consider in particular whether reinstatement is practicable and, if the claimant caused or contributed to dismissal, whether it would be just.

4.4 Should the Tribunal order re-engagement? The Tribunal will consider in particular whether re-engagement is practicable and, if the claimant caused or contributed to dismissal, whether it would be just.

4.5 What should the terms of the re-engagement order be?

4.6 If there is a compensatory award, how much should it be? The Tribunal will decide:4.6.1 What financial losses has the dismissal caused the

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

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

4.6.4 Is there a chance that the claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason?

4.6.5 If so, should the claimant’s compensation be reduced? By how much?

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

4.6.7 Did the respondent or the claimant unreasonably fail to comply with it by [specify alleged breach]?

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

4.6.9 If the claimant was unfairly dismissed, did they cause or contribute to dismissal by blameworthy conduct?

4.6.10 If so, would it be just and equitable to reduce the claimant’s compensatory award? By what proportion?

4.6.11 Does the statutory cap of fifty-two weeks’ pay or [£105,707] apply?

4.7 What basic award is payable to the claimant, if any?

4.8 Would it be just and equitable to reduce the basic award because of any conduct of the claimant before the dismissal? If so, to what extent?

[5]Protected disclosure5.1 Did the claimant make one or more qualifying disclosures as defined in section 43B of the Employment Rights Act 1996? The Tribunal will decide:5.1.1 What did the claimant say or write? When? To whom? The claimant says they made disclosures on these occasions:5.1.1.1 17th September 2023: Raised with manager: Kara Gerrie that people with mobility issues were unable to properly participate in clinics and suggested resolution.

5.1.1.2 21st September 2023: Raised with manager: Kara Gerrie that a patient had already been vaccinated with no record on our system or patient's folder at residence. This meant the claimant had been asked to vaccinate patient again.

5.1.1.3 24th September 2023: The claimant received a list of housebound patients with the patient names missing. I raised with the manager: Kara Gerrie that I had no names on the list. The absence of names risked administering medication to the wrong patient.

5.1.2 Did they disclose information?

5.1.3 Did they believe the disclosure of information was made in the public interest?

5.1.4 Was that belief reasonable?

5.1.5 Did they believe it tended to show that: 5.1.5.1 the health or safety of any individual had been, was being or was likely to be endangered;

5.1.6 Was that belief reasonable?

5.2 If the claimant made a qualifying disclosure, it was a protected disclosure because it was made [to the claimant’s employer].

[6]Detriment (Employment Rights Act 1996 section 48)6.1 Did the respondent do the following things:6.1.1 Degrading comments were made about the concerns the claimant raised.6.1.1.1 Kara Gerrie told Fatima Begum and Dr Nabila Din that I may be friends with Leanne Lewis and needed to watched. 17/09/23

6.1.1.2 Kara Gerrie bragged to colleague she had told Leanne Lewis and I where to sit within the clinic as she didn't want us sitting together 17/09/23

6.1.1.3 Kara Gerrie falsely stated I had caused many problems when I previously worked in Roving team. This was during an email exchange with Paula Beare

6.1.1.4 Kara Gerrie stated she was warned to be careful because the last time I worked with the Roving team, had caused severe disruptions to the team. This was in an email exchange

6.1.1.5 Kara Gerrie discussed her plans to report me to NMC (Nursing Midwifery Council) about incorrect documentation on computer software named EMIS during my previous role at NMC the previous year. Dr Nabila Din (clinical lead) and Leanne Lewis (Roving Team Lead) disagreed with this action. This was during a staff meeting. I was not present. It was June 2023. [withdrawn]

6.1.1.6 Kara stated people had raised concerns about me working on the Roving team. This was brought up after the clinic where I pointed out reasonable adjustments needed to be made for patients with mobility issues. I had already left clinic.

6.1.1.7 It was suggested I be given a 4 week trial; Kara Gerrie then countered this suggestion with a 2 week trial as Paula Beare would be back from annual leave by then. This was an email exchange.

6.1.1.8 Kara has stated she had evidence from Surgery Connect (remote listening device connected to telephones) and I had gone AWOL. This was by email

6.1.1.9 Kara continuously complained about my punctuality to others. I always signed in and I never finished late with my lists. I was also received emails from Kara Gerrie late about work which disturbed my sleep. Despite this, I never caused increased taxi time/staff hours.

6.1.1.10 Kara Gerrie falsely states I emailed her to say I would log into patient software and document clinical activity using another nurse's details. This is completely untrue.

6.1.1.11 Kara Gerrie cast doubt on my nursing and communication skills due to patients changing their mind about having the vaccines. She queried my approach despite being a large contributor to the total patients seen in just 6 days. She also referred to historic concerns which do not exist.

6.1.1.12 On 17th September after clinic, there was a discussion in regards to putting in safety netting or additional support for Cecile. I was not present during this discussion and it has never been brought to my attention. This was an email exchange.

6.1.1.13 In trying to get my details registered on the Pinnacle software, Kara alleges I had raised alarm bells. This was in an email.

6.1.1.14 There were also raised concerns about the impact Cecile had previously had on roving team and risk it would happen again. This was Paula Beare in an email.

6.1.1.15 There were also concerns of a risk of negative impact based on previous experience. This was Paula Beare in an email.

6.1.1.16 Kara Gerrie falsely claimed I had previously been disruptive to the team. This was in an email exchange.

6.1.1.17 Concerns were raised I was disruptive. This was by email. Names were redacted.

6.1.1.18 Kara Gerrie laughed and gloated to Leanne Lewis she was getting rid of me I wasn’t coming back. She said this repeatedly while laughing. This was before I was removed.

6.1.1.19 Paula Beare stated it would be a mistake if I was allowed back on the Roving ream. This was an email exchange.

6.1.2 27th September 2023: Was the claimant removed by Kara Gerrie from her full-time bank role and asked her not to return?

6.1.3 Were shifts that had been pencilled in for the claimant from October 2023 to January 2024 cancelled either by Kara Gerrie or Paula Beare. Was the Claimant banned from the Roving Team? Which meant no access to further opportunities on the Roving Team.

6.1.4 The claimant’s hours were reduced.

6.1.5 The respondent did not engage in reaching a resolution. 6.1.5.1 The respondent did not properly deal with the claimant’s grievance.

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

6.3 If so, was it done on the ground that they made a protected disclosure?

[7]Remedy for Protected Disclosure Detriment7.1 What financial losses has the detrimental treatment caused the

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

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

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

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

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

7.7 Did the ACAS Code of Practice on Disciplinary and Grievance

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

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

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

7.11 Was the protected disclosure made in good faith?

7.12 If not, is it just and equitable to reduce the claimant’s compensation? By what proportion, up to 25%?

[8]Direct race discrimination (Equality Act 2010 section 13)8.1 Did the respondent do the following things:8.1.1 Kara Gerrie told Fatima Begum and Dr Nabila Din that I may be friends with Leanne Lewis and needed to watched. 17/09/23;

8.1.2 Kara Gerrie bragged to colleague she had told Leanne Lewis and I where to sit within the clinic as she didn't want us sitting together 17/09/23;

8.1.3 Kara Gerrie falsely stated I had caused many problems when I previously worked in Roving team. This was during an email exchange with Paula Beare;

8.1.4 Kara Gerrie stated she was warned to be careful because the last time I worked with the Roving team, had caused severe disruptions to the team. This was in an email

8.1.5 Kara Gerrie discussed her plans to report me to NMC (Nursing Midwifery Council) about incorrect documentation on computer software named EMIS during my previous role at NMC the previous year. Dr Nabila Din (clinical lead) and Leanne Lewis (Roving Team Lead) disagreed with this action. This was during a staff meeting. I was not present. It was June 2023; [withdrawn]

8.1.6 Kara stated people had raised concerns about me working on the Roving team. This was brought up after the clinic where I pointed out reasonable adjustments needed to be made for patients with mobility issues. I had already left clinic;

8.1.7 It was suggested I be given a 4 week trial; Kara Gerrie then countered this suggestion with a 2 week trial as Paula Beare would be back from annual leave by then. This was an email exchange;

8.1.8 Kara has stated she had evidence from Surgery Connect (remote listening device connected to telephones) and I had gone AWOL. This was by email;

8.1.9 Kara continuously complained about my punctuality to others. I always signed in and I never finished late with my lists. I was also received emails from Kara Gerrie late about work which disturbed my sleep. Despite this, I never caused increased taxi time/staff hours;

8.1.10 Kara Gerrie falsely states I emailed her to say I would log into patient software and document clinical activity using another nurse's details. This is completely untrue;

8.1.11 Kara Gerrie cast doubt on my nursing and communication skills due to patients changing their mind about having the vaccines. She queried my approach despite being a large contributor to the total patients seen in just 6 days. She also referred to historic concerns which do not exist;

8.1.12 On 17th September after clinic, there was a discussion in regards to putting in safety netting or additional support for Cecile. I was not present during this discussion and it has never been brought to my attention. This was an email exchange;

8.1.13 In trying to get my details registered on the Pinnacle software, Kara alleges I had raised alarm bells. This was in an email;

8.1.14 There were also raised concerns about the impact Cecile had previously had on roving team and risk it would happen again. This was Paula Beare in an email;

8.1.15 There were also concerns of a risk of negative impact based on previous experience. This was Paula Beare in an email;

8.1.16 Kara Gerrie falsely claimed I had previously been disruptive to the team. This was in an email exchange;

8.1.17 Concerns were raised I was disruptive. This was by email. Names were redacted;

8.1.18 Kara Gerrie laughed and gloated to Leanne Lewis she was getting rid of me I wasn’t coming back. She said this repeatedly while laughing. This was before I was removed;

8.1.19 Paula Beare stated it would be a mistake if I was allowed back on the Roving ream. This was an email

8.1.20 27th September 2023: Was the claimant removed by Kara Gerrie from her full-time bank role and asked her not to return? The claimant was replaced with a Caucasian nurse Ana Gomes, occupying the same role the claimant formerly occupied;

8.1.21 Were shifts that had been pencilled in for the claimant from October 2023 to January 2024 cancelled either by Kara Gerrie or Paula Beare. Was the Claimant banned from the Roving Team? Which meant no access to further opportunities on the Roving team;

8.1.22 The claimant’s hours were reduced;

8.1.23 The respondent did not engage in reaching a resolution;

8.1.24 The respondent did not properly deal with the claimant’s grievance.

8.2 Was that less favourable treatment? The Tribunal will decide whether the claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the claimant’s. If there was nobody in the same circumstances as the claimant, the Tribunal will decide whether they were treated worse than someone else would have been treated. The claimant says they were treated worse than a Caucasian nurse fulfilling the same role.

8.3 If so, was it because of race?

[9]Victimisation (Equality Act 2010 section 27)9.1 Did the claimant do a protected act as follows: 9.1.1 Brought proceedings under the Equality Act 2020?

9.2 Did the respondent believe that the claimant had done or might do a protected act?

9.3 Did the respondent do the following things: 9.3.1 Not give the claimant the same number of shifts as would have been given had she not done the protected act

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

9.5 If so, was it because the claimant did a protected act?

9.6 Was it because the respondent believed the claimant had done, or might do, a protected act?

[10]Remedy for discrimination or victimisation10.1 Should the Tribunal make a recommendation that the respondent take steps to reduce any adverse effect on the claimant? What should it recommend?

10.2 What financial losses has the discrimination caused the claimant?

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

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

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

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

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

10.8 Did the ACAS Code of Practice on Disciplinary and Grievance

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

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

10.11 By what proportion, up to 25%?

10.12 Should interest be awarded? How much?

[11]Remedy11.1 Did the ACAS Code of Practice on Disciplinary and Grievance

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

11.3 Is it just and equitable to increase or decrease any award payable to the claimant?

11.4 By what proportion, up to 25%?

Evidence

[1]We were provided with a bundle of documents for the final hearing and a supplementary bundle which was added to during the course of the hearing by addition of a number of screenshots provided by the Claimant – on 26 27 march and 12 further screenshots on 28 March 2025. A copy of a Bank Membership agreement signed by Claimant on 12 April 2023. A bundle of dates and location of Claimant‘s shifts with times and hourly rate of pay. Unredacted versions of documents in the Claimant’s DSAR were provided by the Respondent during the course of the hearing and added to the end of the bundle.

[2]We had written witness statements from the Claimant, Ms Kara Gerrie, Paula Beare, and Leanne Lewis each of whom attended and gave evidence.

[3]On day 4 of the hearing the Respondent applied to re-amend its grounds of response. That application was refused for the reasons given orally at the hearing.

[4]During the course of the Tribunal’s deliberations in chambers we were informed by our clerk that Ms Gerrie had sent an email to the tribunal. We asked our clerk to forward the email to the Respondent’s representative and ask her to let Ms Gerrie know that we would not be able to look at that email.

Findings of fact

[5]We made the following findings of fact as far as they were relevant to the issues we had to decide.

[6]From 22 February 2021 to 31 March 2021 the Claimant worked as an agency worker via Lavender agency. From 1 April 2021 to 31 August 2022, the Claimant worked as bank staff via the Lantum app.

[7]From 1st of September 2022 the Claimant was employed on a fixed term contract due finish on 31 August 2023. The contract provided for a probationary period, fixed salary, normal hours additional hours no extra pay holiday pay and holidays arranged by request such as sick pay company pension and notice provisions as well as applying disciplinary rules including the power to suspend and payment subject to duction of tax and National Insurance with pay slips issued.

[8]The Claimant resigned from the fixed term contract on the 27th of February 2023 giving 4 weeks’ notice which she worked.

[9]In March 2023 during her notice period, the Claimant was invited by Leanne Lewis to come back and help with the autumn vaccination campaign. The Claimant was asked to register with NHC Bank for that purpose she applied to the Bank operated by the respondent and was accepted as a bank worker. The Claimant’s bank membership registration start date was confirmed in email on 27th of March 2023 [p 171]. Her bank worker contract stated that the hours would be confirmed on accepting each temporary assignment. The bank worker agreement also stated that there is no obligation to offer or accept work; work is described as temporary and ad hoc; pay was determined by the assignment and include rolled up holiday pay; termination was at will save for requiring 24 hours’ notice if an assignment had commenced. The contract stated that the grievance and disciplinary provisions did not apply. The Claimant was to pay her own tax and National Insurance.

[10]On 13 June 2023 Kara Gerrie joins NHC as Head of Clinical Operations and Service Development, she received a handover from Helen Page.

[11]On 2 August 2023 the Claimant joined the Out of hours team (Enhanced Accessibility) for work in evenings and at weekends [174] 24/7/. The 2 August 2023 Shift records show the Claimant worked a shift at Church Road 18:30 to 20:00 at £35 p hour. Also in August 2023 the Claimant was approached by Leanne Lewis to rejoin Roving Team for the Autumn campaign 2023. The campaign was supposed to last 4 weeks but the Claimant was led to believed there was an expectation that it might in fact be extended. We find that the vaccination campaign in fact lasted to the end of January 2024. The Claimant was offered work on the Roving team via the bank and subject to the terms of the Bank agreement. There was no fixed duration or set number of hours agreed. The Claimant expected she would be offered the equivalent of full time hours and was expecting to be available six days a week 8:30 to 5:30. Between the 17th of September and the 27th of September 2023 the Claimant worked 54.50 hours over 10 days. The Claimant was not offered anymore shifts on the roving team after 27 September.

[12]On 15 September 2023 Kara Gerrie emails the Claimant in relation to the Roving Team’s autumn campaign thanking her “for supporting us on Monday – looking forward to meeting you then”. On 17 September 2023 the Claimant undertook her first bank shift on Roving Team as part of the Autum 2023 vaccination campaign. During the clinic the Claimant raised with her manager, Kara Gerrie, that people with mobility issues were unable to properly participate in the clinic due to the lack of a proper queuing system and suggested a resolution. This is relied on as the Claimant’s first protected disclosure.

[13]On 19 September 2023 Kara Gerrie met with Dr Din and Nurse clinician Fareda Gul after the static clinic. Dr Din and Fareda Gul informed Ms Gerrie about concerns they had in respect of the Claimant arising from her previous period of working for the Respondent. Dr Din informed Kara Gerrie that it had previously been decided that the Claimant would not be allowed to return to the Roving Team. Dr Din and Fareda Gul expressed concerns about the impact on working relationships within the team of having the Claimant return.

[14]Dr Din informed Kara Gerrie that it had previously been agreed that the Claimant was not to return to the roving team, Ms Gerrie then found herself in a position of having agreed to her return as a bank worker not knowing about the previous decision and considered it prudent to wait for her Iine manger Paula Bearer to return from leave before deciding what to do. Leanne Lewis suggested a four-week trial. Kara Gerrie said there was not a reason not to offer the Claimant more shifts and suggested two weeks which would allow time to discuss with Ms Beare on her return: she confirmed this in an email to Paula Beare. There was a discussion in respect of putting “safety netting” in place. We are satisfied that this was in the context of the concerns raised by Dr Din and Fareda Gul.

[15]Ms Gerrie was concerned that Leanne Lewis had recommended the Claimant for work on the roving team despite having been part of the team when the Claimant had worked there previously and issues had arisen and had not mentioned those to her.

[16]On the 21st of September 2023 the Claimant emailed Ms Gerrie and Leanne Lewis in respect of an incident that had occurred [page 179] when she had attended a care home on the Thursday that week to be told that the GP had already attended earlier in the week on the Monday, to give the flu jab but unfortunately this had not been documented on Pinnacle [an electronic records system], or anywhere in the resident’s folder. The Claimant relies on this as her second protected also made to Kara Gerrie: she informed Kara Gerrie that a patient she had on her list for vaccination had already been vaccinated but that there was no record of this on the system or in patient’s folder at the residence.

[17]We are satisfied there was one incident on the 21st of September 2023 [see page 282 and Ms Gerrie's witness statement paragraph 3], when the Claimant arrived at 9:30 instead of 8:30 a.m. The Claimant accepted she was late on 21 September 2023, arriving at 9:30 instead of 8:30; she said this was because the e-mail informing her of her booking gave her the wrong time and that the other delay was in reviewing her list. Ms Gerrie referred to this one incident, we did not find that she continuously complained that the Claimant was late.

[18]On 24 September 2023 the Claimant raised with Kara Gerrie that she had received a list of housebound patients’ names with names missing [C’s email 23 Sept 2023 at 21:45 p 508; KG’s response at 00:20 24 September 2023 [507]. On 24 September 2023 Leanne Lewis replies to Kara Gerrie at 09:37 pointing out that nurses must have patient names – without names mistakes will happen –and this is unsafe practice [ p506].

[19]On 27 September 2023 the Claimant received an email from Kara Gerrie informing her that, following discussions with Paula Beare, she will not be allocated any more shifts on Roving Team [183].

[20]On 3 October 2023 Leanne Lewis (who was, and remains, an employee of the Respondent) put in a grievance about her treatment [185-186]. Extracts from interviews in relation to Leanne Lewis’s grievance were disclosed to the Claimant as a result of a data subject access request (DSAR).

[21]On 5 October 2023 the Claimant emailed Kara Gerrie, cc Dr Din and Paula Beare, asking for the grounds on which the decision not to offer her anymore shifts on Roving Team was based [188]. Paula Beare responded to the Claimant on 6 October 2023 informing her that the Respondent “has no obligation to provide work to a bank worker”, “the fact that you had previously left your employment with the Roving Team was a factor in making the decision not to offer you further shifts” [189].

[22]On 16 October 2023 the Claimant sent an email to the Respondent’s HR department asking why her shifts were cancelled and she was banned from Roving Team. On 9 November 2023 the Claimant met with Paul Brown and was told that as she is a bank worker the Respondent can cancel shifts if required [192-193]. The Claimant asked who was involved in the decision and was told it was Kara Gerrie with the involvement of Paula Beare. The Claimant asked for the reason and was told “The fit in the team. We don’t want to go down the performance route”.

[23]On 17 November 2023 the Claimant submitted a “grievance” [298-299]. On 4 December 2023 she received a response from HR “Re: Outcome of your concerns raised” [221-222] addressing the Claimant’s complaints raised in her “grievance”. On 18 December 2023 Paula Beare emailed the Claimant following up from the letter from HR/Paul Brown (a reference to the 4 December 2023 letter) offering to have a phone call about the Claimant’s shifts on the staff bank [227]. On 20 December Paul Brown had a conversation with the Claimant about the reasons for not offering her any more shifts on Roving Team; he then sent an email to HR with his draft response to the Claimant following their conversation.

[24]On 20 November 2023 Kara Gerrie sent an email to Paula Beare answering a number of questions she had been asked by Ms Beare, this included the following account by Kara Gerrie of a meeting she had with members of the clinic team on 19 September 2023: Nabila is Dr Din and Fareda is Fareda Gul. This is taken from the unredacted version at p582 of the same email p 308.

[25]Detriment 10 also relies on the 20 November email at p 305 –the unredacted version of which was at 578-579

[26]On 8 December 2023 Kara Gerrie was interviewed as part of the respondent’s investigation into Ms Lewis’s grievance. Parts of those notes were also disclosed to the Clamant in redacted form in response to her DSAR. Ms Gerrie's account of what Dr Din had said about that given the 8th of December 2023 is at page 210 as follows: “ I was told I needed to be careful because the last time Cecile worked with roving team, she had caused severe disruptions to the team and she was responsible for some of the errors that had happened. I was informed I would be making a mistake if I allowed her back on roving team” “I told Dr Din I hadn't seen any evidence at that point in time that I wasn't able to give [the Claimant] the shifts however we would watch and see how it goes [page 210 ] Ms Gerrie made reference to two incidents 21 raising a concern over the taxi driver she felt was asking too many confidential questions 2 documentation and names, what was included on paperwork schedules” [relied on as PID] “Yes Doctor Din said to me she was worried and concerned and I said we will watch and see what happened. It wasn’t about questioning [Leanne Lewis’s] capability and not about where she should sit or not” AP [the investigating officer] clarified that LL recommended [the Claimant] and Dr Din raised the concern. KG answered, “Doctor Din, Nuzhat and Fareda raised concerns and said she shouldn't be given bank shifts” LL suggested 4 week trial -KG suggested 2 weeks until PB returned and had already raised it with Paul Brown who though it a good idea – so [the Claimant] was given 2 weeks. When Paula came back [she] said [the Claimant] was not to work with Roving team.”

[27]We did not hear from Doctor Din or Fareda Gul or the care coordinator Nuzhat Begum.

[28]The Claimant’s case is that Ms Gerrie is not telling the truth and that those individuals did not have these concerns about her. We have seen the notes of the meetings and interviews [210] quoted above] and the unredacted emails, disclosed to the Claimant in redacted form. We accept that Ms Gerrie is being honest when she says she these concerns were raised by Dr Din and Ms Gul and that she had not been aware of any past concerns which is why she wanted to wait to speak to Paula Beare.

[29]On 20 December 2023 the Claimant contacted ACAS.

[30]On 2 Jan 2024 Kara Gerrie was redeployed as Head of Service Delivery. On 8 April 2024 Paula Beare was placed on notice of possible redundancy and on 6 May 2024 Mrs Gerrie was made redundant.

[31]The Claimant continued to be offered bank work on the EA rota until 28 May 2024. From 28 May 2024 onwards no shifts were offered to the Claimant despite her making herself available and repeated requests.

[32]On 3 July 2024 the Claimant made a Data Subject Access Request (DSAR) and on 8 October 2025 the Claimant received the SAR response containing redacted documents. Having read the content of the redacted documents the Claimant notified the Respondent that she was resigning from the Bank.

[33]The content of a number of the DSAR documents disclosures were relied on by the Claimant as detriments, the Claimant had received redacted versions, we were provided with unredacted versions of the relevant documents. We have considered the unredacted versions which we have found provide a more accurate view of the context and meaning of the content.

[34]Having heard from the Claimant we have found that the description mischaracterises what the Claimant had intended when she suggested asking another nurse to document for her, (see Kara Gerrie witness statement para 14). The description was repeated in the 19 January 2024 email from Paula Beare to Paul Brown. We accept that the Claimant was suggesting that the other nurse act as a scribe rather than that she log in as another nurse or ask another nurse to record something she had not either done herself or witnessed. This predates the disclosure relied on as the first protected disclosure PD1; we also find from the documents that this description originates from Dr Din, unredacted document at 586. cast doubt on nursing skills and communication style

[35]Leanne Lewis, gave evidence that despite her confirming to Kara Gerrie that at house visits people often refuse a vaccination for a number of reasons, Kara Gerrie continued to question the Claimant’s approach and communication style. Ms Gerrie told us that she had queried the number of declined vaccinations because she had to report the unused vaccine, (vials opened but not all used or returned unused) and she was not sure what was a normal amount. It seemed to her that the Claimant had quite a high number of patients who had signed up for or agreed to vaccination but then changed their minds and refused the vaccine at the point of her visit. We accept that Ms Gerrie queried the Claimant’s communication style and accept Ms Lewis’s evidence that she considered that this was also by implication casting doubt on the Claimant’s nursing skills. Ms Lewis was the Respondent’s own witness. We have however accepted Ms Gerrie’s explanation for querying the number of refusals. KG Laughing and gloating

[36]In her evidence to the tribunal Ms Lewis did not make any reference to Ms Gerrie “laughing and gloating” that she was getting rid of the Claimant. We do not find that Ms Gerrie was laughing and gloating about the Claimant. It was not disputed that it was decided the Claimant would not be allowed back on roving team, however we have found the decision was taken by Paula Beare and there is no evidence to suggest Ms Gerrie claimed it was her decision. Allegation Paula Beare stating it would be a mistake if the Claimant was allowed back on the Roving Team

[37]This complaint also arises from the DSAR disclosure [210] being taken from Kara Gerrie‘s interview as part of Leanne Lewis’s grievance in which Kara Gerrie confirmed that “[I] was informed I would be making a mistake if I allowed her back on roving team”. We find it was Dr Din who informed Kara Gerrie it would be a mistake. In her interview Ms Gerrie also stated that, “When Paula [Beare] came back [she] said Cecile was not to work with Roving Team”. Paula Beare was not at the meeting and did not say it would be a mistake to allow the Claimant back on the Roving Team. Not offering the Claimant more shifts on Roving Team

[38]Ms Beare confirmed that she was only aware of what she had been told by Ms Page about the previous situation, she was not aware of any on the details of the Claimant’s past employment until the 6th of October after the decision had been made not to offer her any more shifts. She made the decision not to offer her on the roving team because of what she had been told by Helen Page. As the Claimant was a member of bank staff the Respondent did not have to provide the Claimant with any shifts on the roving team and could choose not to do so.

[39]When asked about the concerns conveyed by Helen Page, Ms Beare told us that they were in respect of concerns about the effect on the team and the impact on working relationships, as a result of events which had taken place when the Claimant had been employed [on a fixed term contract]. Helen Page had referred to an altercation between the members of the team which had involved the Claimant and had damaged the team working relationship.

[40]We have accepted that those were the genuine reasons in Ms Beare’s mind at the time. We find this is consistent with Ms Gerrie being told by Dr Din that it had been previously agreed that the Claimant would not return to the roving team. Not giving the Claimant the same number of shifts as would have been given had she not done the protected act [victimisation]

[41]Although the Claimant had not been offered any more shifts on the Roving Team she had been carrying out shifts on the Enhanced Access team between October 2023 and 28 May 2025.

[42]Ms Beare confirmed that she was in charge of the rota team which was responsible for allocating work to bank staff. She told us however that she did not know about the Claimant bringing these proceedings before she left the Respondent in April 2024. We have accepted that evidence.

[43]The Claimant told us, and we accept her evidence, that from when the notice of hearing for the preliminary hearing was sent in May 2024 she did not receive any more shifts on the EA team until October 2024, shortly before the next preliminary hearing. This is supported by the work records in the bundle. The Claimant was very surprised to be contacted in October about applying for shifts and believed this was not a genuine approach but was in connection with these proceedings, she had by then included her victimisation claim. Her last shift on the EA rota was on the 28th of May 2024, this had been booked in advance. The form to book shifts were released in advance and bookings applied for and then confirmed, there was some time lag between the booking and the actual shift.

[44]A notice of preliminary hearing was sent to the parties by the tribunal on the 22nd of May 2024. The notice was sent to the Respondent’s address at 1st Floor, Vicarage Lane. We were told by Ms Beare that in the usual course of things it would have been picked up by the office manager who sat in an open plan office with the rota team. Ms Beare told us that there was a fair allocation policy followed by the rota team which meant that if someone had applied for shifts they would have received at least some shifts in a period of five months, even if that covered included the summer months which were less busy in terms of vaccination rollout or other programmes. She would have expected a bank staff member who applied for EA shifts regularly in the period May to October to have received some confirmed shifts. She could not think of an explanation for why the Claimant had not received any EA shifts in that time if she had been applying for them.

[45]The Claimant provided us with screenshots to confirm that she had regularly applied for shifts during this period. The respondent has not explained why the Claimant did not receive any shifts from the 28th of May 2024.

[46]The Claimant was contacted by the Respondent about applying for bank shifts in October 2024 but was not in fact offered any shifts; her bank enrolment had expired due to the time elapsed since her last shift and she was told she would have to wait a further six months to re-enrol. The Claimant did not pursue what she felt was a disingenuous offer in respect of bank shifts, by October she was focussing on obtaining alternative full time employment. The Claimant told us that she was very surprised to be contacted in October about applying for shifts and believed this was not a genuine approach but was in connection with these proceedings.

Law

[47]There was no dispute as to the relevant law.

[48]Section 230(1) of the Employment Rights Act 1996 defines “employee” as an individual who entered into or works under a contract of employment. Sub-section (2) defines “Contract of Employment” as a contract of service or apprenticeship, whether expressed or implied, and whether oral or in writing.

[49]Section 230(3) provides that a worker means an individual who has entered into or works under (or, where the employment has ceased, worked under) –(a) a contract of employment; or

(b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual

[50]Under section 230(5)(b) the term “employment” in relation to a worker means employment under his contract.

[51]Under section 83(2) of the Equality Act 2010, “employment” is defined as: “… employment under a contract of employment, a contract of apprenticeship or a contract personally to do work” Employee

[52]There is extensive case law on the question of who is an employee. In Ready-Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance

[1968] 2 QB 497

it was said that a contract of employment exists if these three conditions are fulfilled: 1.1. The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service of his master. 1.2. He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other’s control in a sufficient degree to make that other master. 1.3. The other provisions of the contract are consistent with it being a contract of service.

[53]The Tribunal is not bound by the label the parties attach to their relationship (although it carries some weight). See for example: Autoclenz v Belcher

[2011] UKSC 41

, a case which considered the significance of the terms of a written agreement;

[54]In Market Investigations Ltd v Minister of Social Security

[1969] 2 QB 173

it was said that the fundamental test for determining whether a person was performing a contract of service or for services is whether the person engaged to perform those services was doing so as a person in business on his own account. The irreducible minimum

[55]In Carmichael v National Power plc

2000 IRLR 43

the House of Lords confirmed that there is an “irreducible minimum” of mutual obligation necessary to create a contract of employment. Mutuality of obligation is said to be the obligation of the putative employer to provide work and the obligation of the putative employee to accept it. Unless there is mutuality of obligation and a sufficient degree of control, there cannot be a contract of employment.

[56]In Stephenson v Delphi Diesel Systems Ltd

[2003] ICR 471

, the Employment Appeal Tribunal stated that the significance of mutuality is that it determines whether there is a contract in existence at all. The significance of control is that it determines whether, if there is a contract in place, it can properly be classified as a contract of employment rather than some other kind of contract.

[57]If the “irreducible minimum” is established, the other considerations include the degree of control which the employer exercises over the individual, how the parties have labelled or characterised their relationship, the treatment of tax and national insurance, and any other matters that form part of the working relationship; all of which are relevant but not, in themselves, conclusive. Protected disclosure

[58]Section 43A of the Employment Rights Act 1996 provides that a protected disclosure is a qualifying disclosure which is made by a worker in accordance with any sections of 43C to 43H.

[59]Section 43B provides that a qualifying disclosure means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following:(a) that a criminal offence has been committed, is being committed or is likely to be committed

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

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

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

(f) that information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed.

[60]In determining whether an employee has made a qualifying disclosure, the Tribunal must decide whether or not the employee believes that the information he is disclosing meets the criterion set in one or more of the subsections of section 43B(1) and, secondly, decide objectively, whether or not that belief is reasonable; see: Babula v Waltham Forest College

[2007] IRLR 346

CA. Accordingly, provided a whistleblower’s subjective belief that a criminal offence has been committed is held by the Tribunal to be objectively reasonable, neither the fact that the belief turns out to be wrong, nor the fact that the information which the Claimant believed to be true does not in law amount to a criminal offence [or breach of a legal obligation] is sufficient, of itself, to render the belief unreasonable and thus deprive the whistleblower of the protection afforded by the statute.

[61]Section 43C provides, amongst other things, that a qualifying disclosure is made if the worker makes the disclosure to his employer.

[62]In Cavendish Munro Professional Risks Management Ltd v Geduld

[2010] IRLR 38

the Employment Appeal Tribunal held that a protected disclosure must be a disclosure of information and not merely an allegation. The ordinary meaning of giving information is conveying facts. In Kilraine v London Borough of Wandsworth

[2018] IRLR 846

, the Court of Appeal held that the concept of “information” used in section 43B(1) is capable of covering statements which might also be characterised as allegations and that there is no rigid dichotomy between the two. Whether an identified statement or disclosure in any particular case does not meet the standard of being “information” is a matter of evaluative judgment by the Tribunal in light of all the facts.

[63]Section 48 provides that such a Tribunal shall not consider such a complaint unless it is presented to the Tribunal before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates, or within such further period as the Tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.

[64]Section 47B provides that a worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure. Section 48 provides that a Tribunal shall not consider such a complaint unless it is presented before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them or within such further period as the Tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to have been presented before the end of that period of three months.

[65]Section 48(2) provides that on such a complaint it is for the employer to show the ground on which any act, or deliberate failure to act, was done. In London Borough of Harrow v Knight

[2003] IRLR 140

the Employment Appeal Tribunal stated that the ground on which an employer acted in victimisation cases requires an analysis of the mental processes (conscious or unconscious) which cause him to act. Merely to show that “but for” the disclosure the act or omission would not have occurred is not enough. In Fecitt v NHS Manchester

[2011] IRLR 111

the Employment Appeal Tribunal held that once less favourable treatment amounting to a detriment has been shown to have occurred following a protected act, the employer has to show the ground on which any act or any deliberate failure to act was done and that the protected act played no more than a trivial part in the application of the detriment. The employer is required to prove on the balance of probabilities that the treatment was in no sense whatever on the ground of the protected act.

[66]In Fecitt v NHS Manchester

[2012] ICR 372

, the Court of Appeal held that the test of whether an employee has been subjected to a detriment on the ground that he had made a protected disclosure is satisfied if, “the protected disclosure materially influences (in the sense of being more than a trivial influence) the employer's treatment of the whistleblower” Direct race discrimination Direct discrimination

[67]Section 39 of the Equality Act 2010 provides that an employer must not discriminate against an employee of his by, amongst other things, subjecting him to a detriment.

[68]Section 13 of the Equality Act 2010 sets out the legal test for direct discrimination. A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic (race in this case), A treats B less favourably than A treats or would treat others. Causation

[69]The House of Lords has considered the test to be applied when determining whether a person discriminated “because of” a protected characteristic. In some cases the reason for the treatment is inherent in the Act itself: see James v Eastleigh Borough Council

[1990] IRLR 572

. The council’s motive, which had been benign, was besides the point. In that case the council had applied a criterion, though on the face of it gender neutral in that it allowed pensioners free entry, was inherently discriminatory because it required men to pay for swimming pool entry between the ages of 60 and 65 whereas women could enter the swimming pool free of charge. Sex discrimination was thus made out. In cases of this kind what was going on in the head of the putative discriminator – whether described as his intention, his motive, his reason or his purpose, will be irrelevant.

[70]If the act is not inherently discriminatory, the Tribunal must look for the operative or effective cause. This requires consideration of why the alleged discriminator acted as he did. Although his motive will be irrelevant, the Tribunal must consider what consciously or unconsciously was his reason? This is a subjective test and is a question of fact. See Nagarajan v London Regional Transport 1999 1 AC 502. See also the judgment of the Employment Appeal Tribunal in Amnesty International v Ahmed

[2009] IRLR 884

. Burden of proof

[71]Section 136 of the Equality Act 2010 sets out the burden of proof that applies in discrimination cases. Subsection (2) provides that if there are facts from which the Tribunal could decide, in the absence of any other explanation, that person (A) has contravened the provisions concerned, the Tribunal must hold that the contravention occurred. However, subsection (2) does not apply if A shows that A did not contravene the provision.

[72]It has been said that the Tribunal must consider a two stage process. However, Tribunals should not divide hearings into two parts to correspond to those stages. Tribunals will wish to hear all the evidence before deciding whether the requirements at the first stage are satisfied and, if so, whether the Respondent has discharged the onus that has shifted; see Igen Ltd v Wong and Others CA

[2005] IRLR 258

[73]At the first stage, the Tribunal has to make findings of primary fact. It is for the Claimant to prove on the balance of probabilities facts from which the Tribunal could conclude, in the absence of any other explanation, that the Respondent has committed an act of discrimination. At this stage of the analysis, the outcome will usually depend on what inferences it is proper to draw from the primary facts found by the Tribunal. It is important for Tribunals to bear in mind in deciding whether the Claimant has proved such facts that it is unusual to find direct evidence of discrimination. Few employers would be prepared to admit such discrimination and in some cases the discrimination will not be an intention but merely an assumption.

[74]At the first stage, the Tribunal must assume that there is no adequate explanation for those facts. At this first stage, it is appropriate to make findings based on the evidence from both the Claimant and the Respondent, save for any evidence that would constitute evidence of an adequate explanation for the treatment by the Respondent.

[75]However, the burden of proof does not shift to the employer simply on the Claimant establishing a difference in status and a difference in treatment. Those bare facts only indicate a possibility of discrimination. “Could conclude” must mean that a reasonable Tribunal could properly conclude from all the evidence before it; see Madarassy v Nomura International

[2007] IRLR 246

. As stated in Madarassy, “the bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a Tribunal could conclude that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination”.

[76]If the Claimant does not prove such facts, his or her claim will fail. If, on the other hand, the Claimant does prove on the balance of probabilities facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the Respondent has committed the act of discrimination, unless the Respondent is able to prove on the balance of probabilities that the treatment of the Claimant was in no sense whatsoever because of his or her protected characteristic, then the Claimant will succeed. That explanation must be adequate, which as the courts have frequently had cause to say does not mean that it should be reasonable or sensible but simply that it must be sufficient to satisfy the tribunal that the reason had nothing to do with the protected characteristic in question: see Glasgow City Council v Zafar

[1998] ICR 120

and Bahl v The Law Society

[2004] IRLR 799

[77]In Laing v Manchester City Council

[2006] ICR 1519

, the EAT stated, among other things, that: “No doubt in most cases it will be sensible for a Tribunal formally to analyse a case by reference to two stages. But it is not obligatory on them formally to go through each step in each case… An example where it might be sensible for a Tribunal to go straight to the second stage is where the employee is seeking to compare his treatment with a hypothetical employee. In such cases the question whether there is such a comparator – whether there is a prima facie case – is in practice often inextricably linked to the issue of what is the explanation for the treatment, as Lord Nicholls pointed out in Shamoon …. it must surely not be inappropriate for a Tribunal in such cases to go straight to the second stage. … The focus of the Tribunal’s analysis must at all times be the question of whether or not they can properly infer race discrimination. If they are satisfied that the reason given by the employer is genuine one and does not disclose either conscious or unconscious racial discrimination, then that is the end of the matter. It is not improper for a Tribunal to say, in effect, “there is a nice question as to whether or not the burden has shifted, but we are satisfied here that, even if it has, the employer has given a fully adequate explanation as to why he behaved as he did and it has nothing to do with race”’

[78]In the case of London Borough of Islington v Ladele

[2009] IRLR 154

at para 40, the EAT gave further guidance on the question of comparison and the application of the burden of proof extracted from the relevant authorities as follows:(1) In every case the tribunal has to determine the reason why the claimant was treated as he was. As Lord Nicholls put it in Nagarajan v London Regional Transport

[1999] IRLR 572

, 575 - ‘this is the crucial question’. He also observed that in most cases this will call for some consideration of the mental processes (conscious or subconscious) of the alleged discriminator.

(2) If the tribunal is satisfied that the prohibited ground is one of the reasons for the treatment, that is sufficient to establish discrimination. It need not be the only or even the main reason. It is sufficient that it is significant in the sense of being more than trivial …

(3) As the courts have regularly recognised, direct evidence of discrimination is rare and tribunals frequently have to infer discrimination from all the material facts. The courts have adopted the two-stage test which reflects the requirements of the section 136 of the Equality Act 2010. These are set out in Igen. That case sets out guidelines in considerable detail, touching on numerous peripheral issues. Whilst accurate, the formulation there adopted perhaps suggests that the exercise is more complex than it really is. The essential guidelines can be simply stated and in truth do no more than reflect the common sense way in which courts would naturally approach an issue of proof of this nature. The first stage places a burden on the claimant to establish a prima facie case of discrimination: ‘Where the applicant has proved facts from which inferences could be drawn that the employer has treated the applicant less favourably on the prohibited ground, then the burden of proof moves to the employer.’ If the claimant proves such facts then the second stage is engaged. At that stage the burden shifts to the employer who can only discharge the burden by proving on the balance of probabilities that the treatment was not on the prohibited ground. If he fails to establish that, the tribunal must find that there is discrimination.

(4) The explanation for the less favourable treatment does not have to be a reasonable one; it may be that the employee has treated the claimant unreasonably. That is a frequent occurrence quite irrespective of the race, sex, religion or sexual orientation of the employee. So the mere fact that the claimant is treated unreasonably does not suffice to justify an inference of unlawful discrimination to satisfy stage one. As Lord Browne-Wilkinson pointed out in Zafar v Glasgow City Council

[1997] IRLR 229

: ‘it cannot be inferred, let alone presumed, only from the fact that an employer has acted unreasonably towards one employee that he would have acted reasonably if he had been dealing with another in the same circumstances.’ Of course, in the circumstances of a particular case unreasonable treatment may be evidence of discrimination such as to engage stage two and call for an explanation: see the judgment of Peter Gibson LJ in Bahl v Law Society

[2004] IRLR 799

, paragraphs 100, 101 and if the employer fails to provide a non-discriminatory explanation for the unreasonable treatment, then the inference of discrimination must be drawn. As Peter Gibson LJ pointed out, the inference is then drawn not from the unreasonable treatment itself - or at least not simply from that fact - but from the failure to provide a nondiscriminatory explanation for it. But if the employer shows that the reason for the less favourable treatment has nothing to do with the prohibited ground, that discharges the burden at the second stage, however unreasonable the treatment.

(5) It is not necessary in every case for a tribunal to go through the two-stage procedure. In some cases it may be appropriate for the tribunal simply to focus on the reason given by the employer and if it is satisfied that this discloses no discrimination, then it need not go through the exercise of considering whether the other evidence, absent the explanation, would have been capable of amounting to a prima facie case under stage one of the Igen test … The employee is not prejudiced by that approach because in effect the tribunal is acting on the assumption that even if the first hurdle has been crossed by the employee, the case fails because the employer has provided a convincing non-discriminatory explanation for the less favourable treatment.

(6) It is incumbent on a tribunal which seeks to infer (or indeed to decline to infer) discrimination from the surrounding facts to set out in some detail what these relevant factors are: see the observations of Sedley LJ in Anya v University of Oxford

[2001] IRLR 377

…

(7) As we have said, it is implicit in the concept of discrimination that the claimant is treated differently than the statutory comparator is or would be treated. The proper approach to the evidence of how comparators may be used was succinctly summarised by Lord Hoffmann in … Ahsan … a case of direct race discrimination by the Labour Party. Lord Hoffmann summarised the position as follows (paragraphs 36-37): The discrimination … is defined … as treating someone on racial grounds “less favourably than he treats or would treat other persons”. The meaning of these apparently simple words was considered by the House in Shamoon … Nothing has been said in this appeal to cast any doubt upon the principles there stated by the House, but the case produced five lengthy speeches and it may be useful to summarise: (1) The test for discrimination involves a comparison between the treatment of the complainant and another person (the “statutory comparator”) actual or hypothetical, who is not of the same sex or racial group, as the case may be. (2) The comparison requires that whether the statutory comparator is actual or hypothetical, the relevant circumstances in either case should be (or be assumed to be), the same as, or not materially different from, those of the complainant … (3) The treatment of a person who does not qualify as a statutory comparator (because the circumstances are in some material respect different) may nevertheless be evidence from which a tribunal may infer how a hypothetical statutory comparator would have been treated … This is an ordinary question of relevance, which depends upon the degree of the similarity of the circumstances of the person in question (the “evidential comparator”) to those of the complainant and all the other evidence in the case. 37. It is probably uncommon to find a real person who qualifies … as a statutory comparator. … At any rate, the question of whether the differences between the circumstances of the complainant and those of the putative statutory comparator are “materially different” is often likely to be disputed. In most cases, however, it will be unnecessary for the tribunal to resolve this dispute because it should be able, by treating the putative comparator as an evidential comparator, and having due regard to the alleged differences in circumstances and other evidence, to form a view on how the employer would have treated a hypothetical person who was a true statutory comparator. If the tribunal is able to conclude that the respondent would have treated such a person more favourably on racial grounds, it would be well advised to avoid deciding whether any actual person was a statutory comparator.’ ” Conclusions Issue 1 Employment status

Conclusions

[79]We are satisfied that during the period relevant to these claims the Claimant was a worker and not an employee; she signed the bank membership agreement on the 12th of April 2023. She was not an employee for the purposes of the Employment Rights Act 1996 section 230 or for the Extension of Jurisdiction Order and therefore we cannot consider a wrongful dismissal claim. She was however a worker required to do work personally, this was accepted by the Respondent. The Respondent conceded that she was an employee for the purposes of s 83 and 41(7) of the Equality act 2010. We find that the Claimant is covered by the worker definition in section 47 B of the Employment Rights Act 1996 in respect of public interest disclosures and falls within the definition of employee in section 83 (2) (a) of the Equality Act 2010. Issue 2 Time limits - Equality Act 2010 s 123

[80]We find that the Claimant’s complaints in respect of events from September 2023 onwards amount to a continuing act under the Equality Act 2010. The Claimant was informed on 27 September 2023 that she would not be offered any more shifts on roving team. She queried this and pursued sought an explanation through October and lodged a grievance in November 2023, the response to her “grievance” or “raising of concerns” was received on 20 December 2023, the Claimant contacted Acas the same day. The Acas early conciliation certificate was issued on 31 January 2024 and the claim was presented on 28 February 2024. The Claimant also complains, by way of an amendment to her original claim, of detriments which only became known to her on the receipt of the DSAR materials and of an ongoing failure/refusal to offer her work which is relied on as victimisation. We have found the acts complained of are in time as being part of a series of acts, if we had found otherwise we would have extended time on the basis that it would be just and equitable to do so. The Claimant promptly sought to obtain an explanation from the respondent and was allowed to amend her claim in response to information which only subsequently came to her attention. Employment Rights Act 1996 s 48

[81]The first protected disclosure identified at 5.1.1.1 of the list of issues dates from the 17th of September 2023 – the last act relied on as a detriment was the failure to deal properly with the Claimant’s grievance – the response to which was given on 20 December 2023. We find those complaints are also in time. Issue 3 – unfair dismissal

[82]We have not found that the Claimant was an employee within the meaning of s230 of the Employment Rights Act 1996, we therefore do not have jurisdiction to consider her claim of constructive unfair dismissal. Issue 4 remedy for unfair dismissal

[83]This is not applicable due to our finding above. Issue 5 Protected disclosures

[84]The Claimant relied on 3 protected disclosures: Protected disclosure 1

[85]It was not disputed that the Claimant raised the issue orally. Ms Gerrie refers to this at paragraph 33 of her witness statement: she acknowledges that on the 18th of September the Claimant raised concerns about the long patient queues and that Ms Gerrie as a result spoke with the patients and arranged a ticketing system to manage the queue.

[86]The Claimant does not state that she specifically raised or referred to the queuing system as being a health and safety issue; she told us orally that she raised the concern in reference to people with mobility issues having to move from chair to chair and for instance leaving their mobility scooter. She thought it was obvious that the issue was a health and safety issue. We accept the Claimant reasonably believed the way the queue had been allowed to form or progress was an issue of health and safety for those with mobility issues, however we do not find that she pointed out the specific danger.

[87]We note that in her claim form the disclosure is described as a failure to make reasonable adjustments not as a risk to health and safety, the Claimant refers to this in the following terms, ‘the reasonable adjustment is not made once I highlighted I was singled out as a nuisance.’

[88]We accept that at the time she made the disclosure it was the Claimant’s reasonably held belief that it was also a risk to the patient’s health and safety and that she thought this was implicit in her disclosure. We are not satisfied that it was a protected disclosure in relation to health and safety, no information relating to the risk to health and safety was provided. We considered whether there was also a reasonable belief that there was a failure to comply a legal duty to make reasonable adjustments. While we find that while no specific reference to a failure to make reasonable adjustments was made at the time we are satisfied that the information provided did amount to information to that effect, it specifically referred to the detrimental impact on patients with mobility issues. Disclosure 2 5.1.1.2 21st September 2023 Raised with manager, Kara Gerrie, that a patient had already been vaccinated with no record on our system or patient's folder at residence. This meant the Claimant had been asked to vaccinate patient again.

[89]On the 21st of September 2023 the Claimant emailed Ms Gerrie and Leanne Lewis in respect of an incident that had occurred [see page 179] when she had attended a care home on the Thursday that week to be told that the GP had already attended earlier in the week on the Monday, to give the flu jab but unfortunately this had not been documented on Pinnacle [an electronic records system], or anywhere in the residents folder.

[90]We find this was raised as a patient safety issue. The respondent accepted that the issue was one of patient safety and we are satisfied that was what was in the Claimant's mind when she raised this with Ms Gerrie and Leanne Lewis. We find that this was a protected disclosure. Disclosure 3 5.1.1.3 On 24th September 2023 The Claimant received a list of housebound patients with the patient names missing. I raised with the manager: Kara Gerrie that I had no names on the list. The absence of names risked administering medication to the wrong patient.

[91]On 24th of September 2023 there were a number of emails between the Claimant and Ms Gerrie about the absence of patient names from her patient list. The Respondent accepted that the Claimant provided information about failures by the Respondent and raised patient safety in those emails and accepted that those were protected disclosures. We find that this was a correct concession and that they were protected disclosures.

[92]The question then for us is whether the Claimant was subjected to a detriment as a result of any of these disclosures. Detriments relied on

[93]The same detriments are set out in the list of issues as whistleblowing detriments and direct discrimination. The Claimant confirmed to us that she was not making an allegation of race discrimination against either Dr Din or Fareda Gul.

[94]We are satisfied that Ms Gerrie did not hold any grudge or ill will towards the Claimant for having pointed out the difficulty with the queue. Having heard from Ms Gerrie in evidence we find that the protected disclosures did not have any influence on Ms Gerrie in her subsequent treatment of the Claimant.

[95]We also went on to consider later whether the Claimant’s raising of this concern had a cumulative impact and contributed to creating the view in Ms Gerrie’s mind or of the Respondent that the Claimant was a troublemaker. We find Ms Gerrie acted on the Claimant’s concerns about the queue straight away and gave no more thought to the matter. We note that this was not mentioned by Ms Gerrie when she was later asked about incidents with the Claimant in Leanne Lewis’s grievance [see 2 ‘incidences’ referred to at 210].

[96]We considered whether the protected disclosures, or any of them had any impact on Ms Gerrie’s attitude towards the Claimant and have concluded that they did not. We do not find that she considered the Claimant to be a trouble maker as a result of the disclosures. We are satisfied that the protected disclosures did not have any bearing on Ms Gerrie’s attitude to the Claimant. We went on to consider the same allegations as a complaint of race discrimination (see below).

[97]Some but not necessarily all of the allegations are clearly capable of amounting to a detriment, however In light of our findings we have not separately considered whether each complaint amounted to a detriment. 6.1.1.1 and 8.1.1 On 17th September 2023, Kara Gerrie told Fatima Begum and Dr Nabila Din that the Claimant may be friends with Leanne Lewis and they needed to watched?

[98]We have found that this was not said by Kara Gerrie. We are satisfied on the evidence that this had nothing to do with the disclosure from the 17/18th of September relied on by the Claimant– it was said by Dr Din and Fareda Gul to Kara Gerrie, we are satisfied that they were not aware of any thing the Claimant said on 17/18 September 2023 when they raised this. 6.1.1.2 and 8.1.2 Kara Gerrie bragged to colleague she had told Leanne Lewis and the Claimant where to sit within the clinic as she didn’t want us sitting together

[99]We do not find this made out on the facts. We do not find that Kara Gerrie bragged to a colleague about this. We are satisfied that this had nothing to do with the Claimant’s protected disclosures, nor do we find that the decision not to sit them together was because of or influenced by the Claimant’s or Leanne Lewis’ race. We find that the reason why Ms Gerrie had not wanted them to sit together was Ms Gerrie was concerned that Leanne Lewis had recommended the Claimant for work on the roving team despite having been part of the team when the Claimant had worked there previously when issues had arisen and had not mentioned those issues to her and that the other members of the team had told her that it had been agreed the Claimant should not work for the team again. 6.1.1.3 and 8.1.3 Kara Gerrie falsely stated the Claimant had caused many problems when she previously worked in roving team – in an email exchange with Paula Beare [DSAR] 6.1.1.4 and 8.1.4 KG stated she was warned to be careful because the last time the Claimant worked with the Roving team she had caused severe disruptions to the team. This was in an email exchange.

[100]These allegations are both related to the e-mail dated 20th of November 2023 from Ms Gerrie to Paula Beare disclosed to the Claimant as a result of her data subject access request. We were taken to the redacted version which is the version sent to the Claimant and the unredacted version. Ms Gerrie's account of the meeting on 19th of September 2023 is at page 306 and unredacted at 579 is [at 3-4 and 6]. We found that Ms Gerrie is recounting to Paula Beare what had been reported to her by Doctor Nabil Din and Fareda Gul whose initials have been redacted from the version sent to the Claimant in response to her DSAR.

[101]Having heard from Ms Gerrie we accept that the matters she set out there were raised with her and that she had not made up the allegations. She was not employed by the Respondent at the time of the incidents reported by Dr Din and Fareda Gul and did not know before 19 September about the specific difficulties in the team. Her response set out in the e-mail is consistent with her not knowing the history, which we also find is consistent with her suggestion of waiting for Ms Beare to return from leave to raise it with her, and in the meantime putting in what was described as ‘safety netting’ i.e additional support. Having carefully considered Ms Gerrie’s evidence we are satisfied that these measures were put in place in response to the concerns raised by Doctor Din and not in response to any protected disclosures or because of the Claimant’s race. 6.1.5 PID claim withdrawn during cross examination – the Claimant accepted it predates the protected disclosures 8.1.5 race discrimination Kara Gerrie discussed her plans to report me to NMC (Nursing Midwifery Council) about incorrect documentation on computer software named EMIS during my previous role at NMC the previous year. Dr Nabila Din (clinical lead) and Leanne Lewis (Roving Team Lead) disagreed with this action. This was during a staff meeting. I was not present. It was June 2023

[102]We have accepted Ms Gerrie’s evidence that she was not planning to refer the Claimant to the NMC. It is not disputed that that no such referral was made. We find that in response to Dr Din and Fareda Gul informing Ms Gerrie about the serious concerns discovered after the Claimant had left her fixed term contract Ms Gerrie asked whether a reference to NMC had been considered. This was later reported to the Claimant by Leanne Lewis. We are satisfied Ms Gerrie did not appreciate at the time that this was the same nurse who was subsequently engaged as a bank worker; she had not met the Claimant and in the interim the Claimant had married and changed her name. Having carefully weighed the evidence on this matter we accept this was raised as a query only and was a reflection on the nature and potential seriousness of the errors which came to light and not because of, nor materially influenced, by the Claimant’s race. 6.1.1.6 and 8.1.6 Kara stated people had raise concerns about me working on the Roving team. This was brought up after the clinic where I pointed out reasonable adjustments needed to be made for patients with mobility issues. I had already left the clinic.

[103]We find the allegation of ‘historic concerns that do not exist’ to be vague, we are satisfied however that there were historic concerns raised by Dr Din, Nuzhat Begum and Fareda Gul; these concerns were not raised by Ms Gerrie. We find they were raised by team members who had previously worked with the Claimant and were genuine concerns based on incidents that had occurred when the Claimant had previously worked with the team. 6.1.1.7 and 8.1.7 It was suggested C be given a 4 week trial; KG countered this suggestion with a 2 week trial as PB would be back from annual leave by then, this was in an email exchange

[104]This refers to a meeting held after the clinic between Kara Gerrie, Dr Din, Leanne Lewis and Fareda Gul on 19th of September 2023, [see notes are at page 282 and 308]. The discussion was about the Claimant’s previous work history. Leanne Lewis suggested a four-week trial. Kara Gerrie suggested two weeks which would allow time to discuss with Ms Beare on her return: she confirmed this in an email to Paula Beare. We are satisfied that the reason for this suggestion was because Dr Din had informed Kara Gerrie that it had previously been agreed that the Claimant was not to return to the roving team, Ms Gerrie then found herself in a position of having agreed to her return as a bank worker not knowing about the previous decision and considered it prudent to wait for her Iine manger Paula Bearer to return from leave before deciding what to do next.

[105]We have not found that Ms Gerrie was influenced in any way by either the Claimant’s protected disclosures or her race in making this suggestion. issue 6.1.1.8 and 8.1.8

[106]This comment does not relate to the Claimant – It became clear that this related to someone else once reference was made to the unredacted document (re: Duad). 6.1.1.9 and 8.1.9 Kara continuously complained about my punctuality to others. I always signed in and I never finished late with my lists. I was also received emails from Kara Gerrie late about work which disturbed my sleep. Despite this, I never caused increased taxi time/staff hours

[107]The allegation of continuously complaining about the Claimant’s lateness is not made out. 6.1. 1.10 and 8.1.10 Kara Gerrie falsely states I emailed her to say I would log into patient software and document clinical activity using another nurse's details. This is completely untrue. 6.1.1.13 and 8.1.13 In trying to get my details registered on the Pinnacle software, Kara alleges I had raised alarm bells. This was in an email;

[108]These two allegations also taken from the content of the 20th November 2023 e-mail disclosed in the data subject access request. The email quotes the Claimant’s e-mail see page 305 in relation to the 16th of September 2023 following the induction day training and also Paula Beare’s email 19th of January 2024 which states, “ from our perspective the concerns are noted, in particular that she said she would log in and document clinical activity using another nurses details” [572]. It is also reference to an account of the decision about the Claimant at page 210 of Ms Gerrie's interview in Ms Lewis’s grievance.

[109]We are satisfied this concern arose before the Claimant started her assignment and predates the protected disclosures. The Claimant confirmed in her evidence [witness statement paragraph 14] that she was not suggesting she would use another nurse’s login, rather she was saying that she would ask another nurse to document for her that the Claimant had administered a vaccine. We find Ms Gerrie has misunderstood what the Claimant suggested. We find, however, that the Claimant’s email is open to the interpretation given to it be Ms Gerrie and that the concern was also raised by Dr Din. The reference to alarm bells was in the context of the Claimant’s suggestion. We find that both were concerned for a genuine reason which was not because of, or materially influenced by, the Claimant’s race and the same concern would have been raised had a White or Asian nurse had made the same suggestion in the same terms. 6.1.1.11 and 8.1.11 Kara Gerrie cast doubt on my nursing and communication skills due to patients changing their mind about having the vaccines. She queried my approach despite being a large contributor to the total patients seen in just 6 days. She also referred to historic concerns which do not exist.

[110]Ms Gerrie addressed this at paragraph 16 to 21 of her witness statement and in the e-mail on the 19th of September 23 [page 306] explaining the reasons given for refusing further shifts. Ms Gerrie discussed the patient vaccine refusals with Ms Lewis and Dr Din; she was new and did not know whether the level of refusals, patients changing their minds about having the vaccine, was normal and she had to report usage to NHS England when the vaccines were partially used, that is a vial of vaccine was started but not all of the vaccine was used up. Ms Lewis gave evidence that Ms Gerrie questioned the Claimant’s refusal rate and implicitly her communication skills. The Respondent called Ms Lewis as their witness and they are bound by her evidence. We accept Ms Gerrie queried whether there was something about the Claimant’s communication or approach which led to, what happened to her to be high, number of refusals, we have accepted Ms Gerrie’s evidence as to why she queried the amount of unused vaccine we have found that she would have queried this in the same way had the Claimant been white or Asian and this was not because of her race.

[111]In respect of the historic concerns we are satisfied that there were historic concerns raised by Dr Din, Nuzhat Begum and Fareda Gul. 6.1.1.12 and 8.1.12 On 17th September after clinic, there was a discussion in regards to putting in safety netting or additional support for Cecile. I was not present during this discussion and it has never been brought to my attention. This was an email 6.1.1.14 and 8.1.14 There were also raised concerns about the impact Cecile had previously had on roving team and risk it would happen again. This was Paula Beare in an email; 6.1.1.15 and 8.1.15 There were also concerns of a risk of negative impact based on previous experience. This was Paula Beare in an email; 6.1.1.16 and 8.1.16 Kara Gerrie falsely claimed I had previously been disruptive to the team. This was in an email exchange; 6.1.1.17 and 8.1.17 Concerns were raised I was disruptive. This was by email. Names were redacted;

[112]These complaints are all based on the e-mail of 20 November 2023 from Kara Gerrie to Ms Beare we have set out our findings as to the context of this discussion above. We have found that Ms Gerrie was reporting concerns raised to her by Dr Din and Fareda Gul. We have not found that these concerns were influenced by the Claimant’s protected disclosures or her race. 6.1.1.18 and 8.1.18 Kara Gerrie laughed and gloated to Leanne Lewis she was getting rid of me I wasn’t coming back. She said this repeatedly while laughing. This was before I was removed;

[113]We are satisfied there was no evidence to support the contention that Ms Gerrie was laughing and gloating about the Claimant, or that she said was getting rid of her. It was not disputed that it was decided the Claimant would not be allowed back on roving team however we have found the decision was taken by Paula Beare and there is no evidence to suggest Ms Gerrie claimed it was her decision. 6.1.1.19 and 8.1.19 Paula Beare stated it would be a mistake if I was allowed back on the Roving ream. This was an email exchange; [see 561-562 and unredacted 585] .

[114]We accept that Ms Beare did think it was a mistake to allow the Claimant back on to the Roving Team however we are satisfied this was not because of her protected disclosures or her race. We find that it was because of the issues that had been conveyed to her by Helen Page and have accepted that those were the genuine reasons in Ms Beare’s mind at the time. 6.1.1.20 and 8.1.20 27th September 2023: Was the claimant removed by Kara Gerrie from her full-time bank role and asked her not to return? The claimant was replaced with a Caucasian nurse Ana Gomes, occupying the same role the claimant formerly occupied; 6.1.1.21 and 8.1.21 Were shifts that had been pencilled in for the claimant from October 2023 to January 2024 cancelled either by Kara Gerrie or Paula Beare. Was the Claimant banned from the Roving Team? Which meant no access to further opportunities on the Roving team; 6.1.1.22 and 8.1.22 The claimant’s hours were reduced;

[115]The Respondent does not accept that the Claimant had a full time role. We find that the Claimant was engaged as a bank worker and that under the terms of the bank agreement there was no obligation on the Respondent to provide her with full time work or work for the duration of the vaccination campaign. However we find that but for the concerns that had been raised it is likely she would have continued to be offered work of the duration of the campaign. We have accepted Ms Bear’s evidence and are satisfied that the reason for not offering her further work on the roving team was because of those concerns and not because of the Claimant’s race or as a result of her protected disclosures. 6.1.5 and 8.1.23 The respondent did not engage in reaching a resolution; 6.1.5.1 and 8.1.24 The respondent did not properly deal with the claimant’s grievance.

[116]Whilst the Respondent did not conduct a full grievance investigation they did carry out inquiries into the Claimant’s complaint or “concerns” and respond by email and by meeting with her and calling to discuss her concerns. The grievance the Claimant presented on the 17th of November is at page 298 and there's a response at page 221 on the 4th of December 2023. We find that as a member of bank staff the Claimant was not entitled to the benefit of the full grievance process.. We find the grievance was dealt with in the way that it was by the Respondent because the Claimant was bank staff and not an employee; it had nothing to do with her race or the fact that she had made protected disclosures. Issue 7 – remedy for PID

[117]As a result of our findings and conclusions set out above the issue of remedy for protected disclosure detriments does not arise. Victimisation Protected act relied on is the bringing of these proceedings – issues 9.1.1 Issues 9.3.1 Not give the Claimant the same number of shifts as would have been given had she not done the protected act 9.4 By doing so, did it subject the Claimant to detriment? 9.5 If so, was it because the Claimant did a protected act? 9.6 Was it because the respondent believed the Claimant had done, or might do, a protected act?

[118]We are satisfied that this complaint properly encompasses the failure to offer the Claimant any EA shifts from 28 May 2024.We have found that the burden of proof has shifted in respect of the complaint of victimisation, failing to offer shifts. There has not been any explanation put forward by the Respondent to explain the failure to offer the Claimant a single shift after 28 May 2024. We have taken into account Ms Beare’s evidence that the office manager, who sat in an open plan office with the rota team, would have received the notice of preliminary hearing and that the fair allocation policy should have meant that the Claimant would have been offered at least some shifts between May and October 2024. We find it is a reasonable inference for us to draw that the proceedings became known about in the office aby the end of May 2024 and that the Claimant was not offered any shifts as a result. We also find that the Respondent has not provided any explanation for its failure to provide any shifts and had failed to discharge the burden of proof in respect of the claim for victimisation. Remedy for victimisation

[119]We went on to deal with the remedy for that victimisation claim. We considered the Claimant’s schedule of loss and the Claimant clarified her earnings in the relevant period. We are satisfied that she has fully mitigated her losses, and has not shown any financial loss arising from May to October 2024 and onwards. We therefore made not award for financial loss.

[120]When considering the award for injury to feelings we took into account that much of the Claimant’s evidence in relation to the injury to her feelings related to the detriments relied on as acts of direct race discrimination and/or whistleblowing detriment for having made public interest disclosures. We reminded ourselves that we have not found in the Claimant’s favour in respect of those claims and we have had to assess the injury which flowed from the act of victimisation as opposed to any of the other matters the Claimant relied on. We consider that the sum of £8,000.00 for injury to feelings properly reflects the injury to the Claimant’s feelings as a result of the act of victimisation.

[121]We have also awarded interest on that sum under the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996, in the sum of £613.70.

[122]The respondent shall pay the Claimant the following sums:1.1 Compensation for injury to feelings in the sum of £8,000.00;

1.2 Interest on compensation for injury to feelings calculated in accordance with the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996, in the sum of £613.70. Approved by:

Conclusions

[1]The unanimous decision of the tribunal is that the claims for:1.1 Constructive unfair dismissal under s 94 of the Employment Rights Act 1996;

1.2 Detriments for having made public interest disclosure under s 47B of the Employment Rights Act 1996; and

1.3 Direct race discrimination contrary to s 13 of the Equality Act 2010 are not well founded and are dismissed.

[2]The claim for victimisation is well-founded in respect of the failure to offer the Claimant shifts from 28 May 2024 onwards and that claim succeeds. REMEDY 1. The respondent shall pay the Claimant the following sums:1.1 Compensation for injury to feelings in the sum of £8,000.00; Case Number: 3200480/2024