Ms A AnnamallayClaimantBarclays Bank plcRespondent
Before
Employment Judge Goodrich
Members
Mr G TomeyMrs G EverettMr Bruce Gardiner (instructed by Counsel) for claimantMr Will Dobson (instructed by Counsel) for respondentDate 20 August 2018
JUDGMENT
[1]The complaint of sex discrimination was not presented in time and it is not just and equitable to extend time and is dismissed.[2]The complaint of race discrimination complaint succeeds, to the extent further set out below. Accordingly, unless the parties are able to resolve remedy themselves, the case is listed for a Preliminary Hearing (closed) for 2 hours on Friday 8 September 2017, at East London Tribunal Service, 2nd Floor, Anchorage House, 2 Clove Crescent, London E14 2BE.
REASONS
Conclusions
[1]The background to this hearing and judgment is as follows.[2]The Claimant presented her ET1 claim form on 1 June 2016. Prior to that she had obtained, as required, an ACAS early conciliation certificate covering the period from 5 April to 5 May 2016. She gave her dates of employment as being on 10 April 2013 and continuing.[3]The Claimant has brought a claim of race discrimination and provided particulars of claim. At the time of her claim form being presented she was represented by an organisation called Paul Doran Law, who drafted her claim form.[4]The Respondent entered a response denying the Claimant’s claims. At the time of drafting the response they provided a very brief response only, giving an explanation that there was an ongoing internal grievance. They asked for and were granted a temporary stay of the proceedings in order for the grievance processes to be concluded.[5]On 28 September 2016 there was a Preliminary Hearing before Employment Judge Warren. In the course of that Preliminary Hearing there was a clarification of the issues, with eight allegations of race discrimination harassment being recorded; together with a number of Case Management Orders. One of the Case Management Orders was the Claimant to provide further and better particulars of the claim; and giving leave for the Respondent to provide amended grounds of resistance.[6]Shortly after the Preliminary Hearing before Judge Warren the Claimant changed representation, instructing Mr Bruce Gardiner, counsel, on a direct access basis. He made an application to amend the list of issues and there was a further Preliminary Hearing on 18 December 2016 before Employment Judge Lewis.[7]The Preliminary Hearing before Judge Lewis was spent mainly considering an application by Claimant to further amend her claim. Parts of the application to amend were not opposed by the Respondent and parts were opposed. Judge Lewis allowed in part the application to amend. She, however, refused the application to amend insofar as they referred to incidents that occurred after the issuing of the first Employment Tribunal claim. She did not, however, make any comments to the effect that any such allegations could not be considered as part of the evidential background, or credibility of the parties.[8]There was a further application to amend by the Claimant, contained in an application dated 24 January 2017, which was allowed by Regional Employment Judge Taylor and Employment Judge Prichard, having been opposed by the Respondent.[9]In the course of these Case Management Orders leave was given to the parties to provide amended grounds of claim and amended grounds of resistance.[10]By the time that the case arrived at the hearing before this Tribunal, therefore, the documents we were asked to read included the Claimant’s re-amended particulars of claim; and the Respondent’s second re-amended grounds of resistance.[11]Helpfully, by the time that the case had got to this hearing, there was an agreed final list of issues for the Tribunal to determine. A copy of this list is attached to the Tribunal’s judgment.[12]At the outset of this hearing there was an application by Mr Gardiner, on the Claimant’s behalf, for further disclosure of documents. This was resisted by Mr Dobson, on behalf of the Respondent.[13]The Tribunal gave the representatives a preliminary indication on our views about the application. Helpfully, this preliminary indication was accepted by both representatives.[14]Thereafter, the representatives reached agreement between themselves as to adding further documents to the trial bundles provided for the Tribunal during the course of this Hearing.[15]We wish to record that both parties were well represented; and both representatives assisted the Tribunal in meeting its overall objective by co-operating with each other about the management of the trial.[16]Although the case had been listed for six days and the parties were notified that they should contact the Tribunal if that would be insufficient, the parties timetable provided by the representatives allowed insufficient time for the Tribunal to deliberate on and deliver its judgment. The closing submissions were only completed by the afternoon of the six days allocated for the case. This has led to the Tribunal needing to meet “in chambers” (in private) to deliberate on our decision; and led to a delay in providing the judgment.
The Relevant Law
[17]In respect of a direct race discrimination claim, the Tribunal is concerned with less favourable treatment contrary to section 13 Equality Act 2010 (“EqA”) when read with section 39.[18]In respect of sex discrimination harassment and race discrimination harassment the Tribunal is concerned with section 26 EqA when read with section 39.[19]In respect of race discrimination victimisation the Tribunal is concerned with section 27 EqA when read with section 39.[20]In respect of all three of the above types of race discrimination claim it is recognised that it is unusual for there to be clear, overt evidence of race discrimination; and that the Tribunal should expect to have to consider matters in accordance with section 136 EqA as to when and how the burden of proof may shift to the Respondent and what the Respondent must prove if it does. Guidance has been given as to how the burden of proof provisions should be interpreted in the case of Igen Ltd v Wong and other cases [2005] IRLR 258 (CA) and in numerous other subsequent cases. The Tribunal has read and adopts the guidelines set out in Wong. These guidelines are usefully considered through a staged process.[21]At the first stage the Tribunal needs to make findings of fact and determine, in respect of direct race discrimination, whether those show in respect of the Claimant and a real or hypothetical comparator, less favourable treatment and a difference in race. In respect of race discrimination harassment reference is made to unwanted conduct related to a relevant protected characteristic. In respect of race discrimination victimisation the burden of proof rests upon the Claimant to prove the performance of one or more of the “protected acts”, defined at section 27 EqA; and the receipt thereafter of some less favourable treatment than a person (real or hypothetical) who had not performed the protected act(s).[22]If the Tribunal is satisfied that there has been less favourable, or unwanted, or detrimental treatment (depending on the relevant statutory provisions) the Tribunal directs itself in accordance with section 136 EqA and asks, in respect of each item of less favourable treatment which has been proved, whether the Claimant has proved facts from which the Tribunal could reasonably conclude, in the absence of an adequate explanation, that the less favourable treatment was on the prohibited ground. Findings of fact which affect whether the Tribunal could so conclude will vary from case to case. Relevant examples include prior or subsequent acts of discrimination; failure to comply with guidance given in the Equality and Human Rights Commissions Code of Practice on Employment; some unexplained adverse or hostile conduct towards the Claimant revealed in the facts found by the Tribunal; inconsistent or evasive oral or documentary evidence from the employer. Unreasonable treatment on the part of an employer is not necessarily a matter from which the Tribunal will ultimately conclude that there was unlawful race discrimination, merely because the person adversely affected by it is a particular race, but it might be a matter from which an inference could be drawn.[23]If the Tribunal could reasonably conclude, absent a non discriminatory explanation, that there was unlawful race discrimination, we move to the Respondent’s explanation for the treatment. In the absence of an adequate explanation, the Tribunal will uphold the complaint that there has been race discrimination. The Tribunal looks to the employer to see whether it provides and proves a credible, non discriminatory explanation or reason for the difference in treatment. In the absence of such an explanation which the Tribunal accepts as proven on the balance of probabilities, the Tribunal will infer or presume that the less favourable treatment occurred on the prohibited ground.
The Relevant Law
[24]Tribunals have often been encouraged to consider the question why the Claimant was treated as he or she was. Was the treatment on the prohibited ground?[25]Section 123 EqA sets out the statutory time limits for bringing a claim. The primary time limit, within which the Claimant must be presented in order to found the Tribunal’s jurisdiction, is three months from the date of the act(s) about which complaint is made, but this is subject to various qualifications. Section 123(3) EqA provides that any act extending over a period shall be treated as done at the end of that period. Case law has explained this further. Such an act may be something done in pursuance of a policy or practice, however informal, or a series of linked or connected acts. It cannot be a few isolated instances spread over time or a single act with continuing consequences (as, for example, a decision in respect of pay rates/non promotion). Section 123(3)(b) provides that a failure to do something is treated as occurring when the person in question decided on it. In the absence of evidence establishing the contrary, it is to be treated as done when the person does an act inconsistent with doing the omitted act or when the reasonable time for doing the omitted act expires. Beyond this, section 123(2)(b) provides that a Tribunal may consider a complaint which is out of time if it is, in all the circumstances, just and equitable to do so. This is a wide discretion which must be judicially exercised. The Tribunal will bear in mind that limitation periods ought not without good reason be disobeyed. The issue of prejudice is very important: how “old” is the claim, have memories faded or become less reliable, are witnesses unavailable, have documents disappeared? Is it unfair to either party to proceed? What explanation is given for delay? Have internal proceedings kept matters alive in the interim? Has the Respondent in any way misled the Claimant or been responsible for the delay? No list can be exhaustive, and we must bear in mind all relevant factors.[26]Beyond this the time limit may be affected by the early conciliation requirement set out in section 18A Employment Tribunals Act 1996 and supporting regulations.
The Evidence
[27]On behalf of the Claimant the Tribunal heard evidence from the Claimant herself.[28]On behalf of the Respondent the Tribunal heard evidence from:28.1 Ms Farmer, Heard of Sales Support for the Essex North London region for the Respondent.28.2 Mr McDonald, currently Head of Service and Performance, East and South East region, for the Respondent.28.3 Mr Aldred, currently Industry Director, Business and Professional Services Teams for the Respondent.28.4 Mr Falkingham, at the relevant times Head of Corporate Business Banking for Essex for the Respondent.28.5 Ms Balster, Business Manager for the Respondent.28.6 Ms Maynard, Relationship Support Manager for the Respondent.28.7 Ms White, Relationship Support Manager for the Respondent in the Respondent’s Chelmsford office.28.8 Ms Faulkner, Business Development Manager for the Respondent in their Chelmsford office.28.9 Ms McWee, Relationship Support Manager for the Respondent in the Respondent’s Chelmsford office.[29]In addition the Tribunal considered the documents to which we were referred in two lever arch files of documents (not including a bundle of pleadings) which, as referred to above, were supplemented during the course of this hearing.
Findings of Fact
[30]We set out below the findings of fact we consider relevant and necessary to decide the issues we are required to decide. We do not seek to record each detail provided to us nor to make findings on every detail on which the parties disagreed. We have however considered all the evidence provided to us and we have borne it all in mind.[31]The Claimant, Ms Adeshree Annamallay, commenced employment with the Respondent, Barclays Bank Plc, on 15 August 2005. She has been continuously employed by the Respondent since that date and remains, at the time of this hearing, an employee of the Respondent.[32]The Claimant describes her origins as Indian South African.[33]Between August 2005 to September 2006 the Claimant worked for the Respondent in Clacton-On-Sea, Essex, working in a call centre and servicing customers accounts and providing different products to the customers.[34]From September 2006 to February 2008 the Claimant worked for the Respondent in Canary Wharf, London, in a Business Support Role in corporate banking.[35]From February 2008 until July 2009 the Claimant worked again in Canary Wharf, as a Corporate Credit Analyst in Property Finance.[36]Between July 2009 and October 2011 the Claimant worked once more in Canary Wharf, in a role with internal audit.[37]From October 2011 to March 2013 the Claimant worked for the Respondent in Ipswich, Suffolk in retailing banking as a Personal Banker.[38]So far as the Tribunal was made aware the Claimant had no significant problems either in how she did her work or with her colleagues up to the time which she worked for the Respondent in their Chelmsford branch (other than some comments made about her by a former colleague, Mr Jooste, who worked with the Claimant at the Respondent’s Ipswich branch, to which we refer later in these findings of fact).[39]The Claimant has worked for the Respondent in their Chelmsford branch from April 2013 as a Relationship Support Manager.[40]The Claimant secured her position in Chelmsford branch after an interview. Two of the people that interviewed her were Ms Farmer and Falkingham, who were managers at the Chelmsford branch.[41]The Claimant described her role as a Relationship Support Manager as forming part of the team which did day-to-day servicing of customers. Their customers consisted mainly of people involved in running local businesses. The relationship support managers helped support a relationship support director, carried out credit risk analysis, annual reviews, went out to visit customers, considered lending requests and generally supported the customers with their queries and needs.[42]The relationship director to whom the Claimant initially provided support was Mr Dean Coppen until either February or April 2016; and after that, she was responsible for assisting two relationship directors, Mr Andy Vickers and Mr Andy Barker.[43]The line manager for the Claimant and other relationships support managers at the Respondent’s Chelmsford office was Ms Joanne Farmer. Ms Farmer had been in that position from 2003.[44]Ms Farmer’s line manager was Mr Jason Falkingham. His line manager was Ms Jane Galvin. Latterly, during 2015 and 2016, Ms Farmer reported to Mr McDonald although both Mr Falkingham and Mr McDonald had oversight of her work performance.[45]Whilst working at the Chelmsford office the Claimant has been the only South African national working in an otherwise white British team.[46]A number of the Claimant’s new women colleagues had worked together for many years, were friends and formed a close knit, sociable team. When cross-examined Ms Farmer accepted that there was a clique of the ex Barclays Laindon office (also described as the Basildon office) was a clique and forceful, forming a tight knit social group.[47]The Respondent had a method of working that put relationship support managers into pairs, described as “buddies”. The “buddy” was expected to cover his or her colleague’s work, if something urgent arose whilst their buddy was away on a break, or holidays, or sickness absence, or other short term absence.[48]The above findings of fact are by way of background and are, so far as the Tribunal was made aware, matters on which there was no dispute between the parties.[49]In dispute between the parties is whether the Claimant was made to feel unwelcome in the Chelmsford office from the outset of her employment there as was her evidence; or whether she was welcome from the outset and any difficulties she subsequently had were of her own making, as was the evidence of witnesses of the Respondent.[50]The Tribunal finds that the Claimant did feel unwelcome with at least some of the team, particularly all or most of the close knit ex Basildon team members to whom we have referred, from the outset of the time that she worked in the Chelmsford office. We so find because:50.1 This was the Claimant’s own evidence, it appeared plausible and we had no doubts that she was genuine in feeling this.50.2 Her evidence had some support from evidence to which we refer further below, in which Ms Farmer described some team members as being “very hostile” towards her (although it was not clear to the Tribunal whether this was meant as being from the outset of the Claimant’s move to the Chelmsford office, or later on).50.3 Following an informal complaint by the Claimant, a considerable time later (to which we refer later in our findings of fact) Mr McDonald carried out anonymous interviews with members of the Chelmsford team. A number of those interviewed described the Chelmsford team as containing cliques.50.4 Further than that, one of those interviewed referred the Claimant having “had it difficult”; another to Ms Farmer having “favourites” Mr Falkingham being too close to Ms Farmer and protecting her; there being personality clashes between the Claimant and others which should have been nipped in the bud but was not; and “the Claimant never got on with anyone”. Mr McDonald interviewed 13 relationship support managers, where the Claimant was not referred to by name; and three relationship directors, where (we understand although it was not made clear to the Tribunal) she was referred to by name.
The Evidence
[51]Ms Jackie Faulkner, Ms Joanne Maynard, Ms Nicola McWee, Ms Elise Balster and Ms Tracy White had all worked together at the Respondent’s Laindon office before working together at their Chelmsford office and were a close knit group. Assessment of witness credibility[52]This is a case where there are extensive disputes between the parties as to what has occurred. The disputes of fact have not been easy for the Tribunal to make findings of fact on. Many are one person’s word against another and some go back seven years before the commencement of the proceedings. We also have in mind that although a witness may be inaccurate or lacking credibility on one matter, they may be accurate on another.[53]On the whole the Tribunal found the Claimant’s evidence to be reasonably plausible and convincing. We did not doubt that she was genuine in her evidence. This was also supported by a number of the Respondent’s witnesses who accepted when cross-examined that they had no reason to doubt the Claimant’s honesty. That is not to say that we accept all the Claimant’s evidence. We consider that there were parts of her recollections that were inaccurate, or confused; and she may have misjudged or misinterpreted some of the actions that she has complained about.[54]The Tribunal’s overall sense of the evidence provided from the Respondent was that the Tribunal was not being presented with the full story. There was a substantial amount of evidence of witnesses of the Respondent that gave the Tribunal the impression of needing to be prised out of the witnesses through cross-examination. Some of the Respondent’s witnesses were reasonably convincing and impressive, some considerably less so. Our overall impression, as stated above, was of the full truth being hidden from us. We give a few examples below such as:54.1 Mr McDonald carried out a confidential survey or employees working in the Chelmsford branch following the Claimant making complaints to him about her treatment. A number of those questioned referred to cliques within Chelmsford office, their references to Mr Falkingham and Ms Farmer being too close to each other, there were a number of references to the Claimant having personality clashes and one of those questioned stating that she did not get on with anyone. No specific references to this issue were made in the Respondent’s witness statements, even although Mr McDonald was conducting the investigation and was one of the Respondent’s witnesses.54.2 Although Ms Farmer accepted that she had referred to the Claimant being South African and direct on one occasion, she denied having done so on other occasions. She was unconvincing on this and the documentation to which we were referred showed that, nearer the time, she appeared to accept that she had done so more than once.54.3 Only in cross-examination did it emerge that some of the Claimant’s colleagues disapproved of her and Mr Brinn having lunches together frequently. Some considered that their relationship might be more than a professional business relationship. Yet none of this was referred to in the Respondent’s witness statements, even although it was one of the specific allegations being made by the Claimant.54.4 Mr Falkingham’s evidence appeared at times to be evasive. There were many occasions when asked what appeared to be difficult questions when he either did not answer them or paused for a long time before answering the question. His explanation of why he decided to telephone Mr Jooste, who was of South African origins, to ask about the Claimant’s culture and adapting to being British was extremely unconvincing (which we explore further below when considering the specific allegation).54.5 The policy to which we were referred about Barclays values and dealing with race discrimination seriously was sharply at variance with how in practice Mr Falkingham, Mr McDonald and Mr Aldred dealt with the Claimant’s complaints about Ms Farmer frequently referring to her South African origins and being direct; and an allegation she made about a colleague telling people not to have lunch with her because she was foreign. There was a conflict between their witness statements extolling the equal opportunities training they had and written policies with the manner in which the Claimant’s complaints were dealt with in practice. Allegations under section A of the list of issues- The treatment received by the Claimant from the Essex team (i) Teasing about coarse jokes and potential relationships Allegation A(1)- Nipple Tassels/Willy Warmer comments made at a relationship support managers lunch in December 2013, Olio, Italian restaurant
Findings of Fact
[55]In dispute between the parties is whether members of the Chelmsford office made teasing comments to the Claimant of a sexual nature.[56]The parties agreed that there was a Christmas lunch in December 2013. They also agreed that Mr Ruston, who worked at Chelmsford office, was given a nipple tassel as a present in a “Secret Santa” present exchange. Mr Ruston had complained of nipple soreness after a long run.[57]In dispute is whether, at the Christmas lunch Ms Faulkner shouted across to the Claimant “Adeshree do you know what a nipple tassel is?”; and Ms Balster joined in general laughter and said “its just gone over Adeshree’s head”; and Ms Faulkner then asked “Adeshree do you know what is a “willy warmer”?”[58]This is one of the more difficult issues to resolve, with the Claimant’s allegation about it only being made some years after the alleged event. On the balance of probabilities we find that the remarks were not said at the Christmas event. The Claimant, when cross-examined, was confident that the “Secret Santa” present exchange had taken place on the morning of the Christmas lunch. She was inaccurate in this as documents produced during the hearing showed that the present exchange was about two weeks after the Christmas lunch. We find that the Claimant was inaccurate in her recollection. It is possible that some such comments might have been made around when the Secret Santa exchange took place, we find however that they did not make any such remarks (if they occurred) did not take place at the Christmas meal. Allegation A(i)(2) – teasing about potential relationship with colleague Christian Smith and accessing her computer to find details of such a relationship[59]The parties agreed that Mr Smith had been a member of the Chelmsford office and had come back to attend a leaving party, which took place around March 2014. The parties also agreed that Mr Smith and the Claimant were dancing together at the party.[60]The parties dispute whether Ms McWee and Ms Balster were teasing the Claimant about her doing so, calling her naïve about Mr Smith fancying her and being obvious that he did. Ms Balster denied that she looked at the Claimant’s computer to find details of such a relationship.[61]On the balance of probabilities, the Tribunal finds that Ms Balster did so but that Ms McWee did not, at least on the following day- the Claimant’s evidence being that both teased her the following day and that there was teasing from several colleagues during the following months. It was unlikely, as Ms McWee worked part time and her days of work did not include the following day that she would have done so the next day.[62]On the balance of probabilities we find the Claimant’s evidence the more convincing as regards Ms Balster and her colleagues on this issue including because:62.1 It is consistent with the evidence produced by Ms Maynard when crossexamined that various members of the team disapproved of Mr Brinn and the Claimant frequently having lunch together. It is plausible that there would be likely to be a similar interest in the Claimant, a married woman, dancing with a man at a party.62.2 Various witnesses of the Respondent accepted that there was a certain amount of teasing banter that took place in the office.62.3 The Claimant’s evidence about Ms Balster accessing the Claimant’s computer and seeing a message about Mr Smith the next day or so appeared to be convincing. Her explanation was that she was giving him information about where to stay in the States (USA) where he was about to go on holiday. The Claimant and Ms Balster were what were described as “buddies” and responsible for covering each others work when one or the other was absent and it is plausible that they would look at each other’s emails from time to time.[63]The Claimant felt upset by being teased by her colleagues in this and other respects referred to below, feeling that she was being made the butt of their humour. Allegation A(i)3 – lewd gestures and jokes[64]Did a number of the Claimant’s colleagues, Ms Faulkner, McWee, Balster and White, in the course of sharing jokes, tease the Claimant about not knowing about oral sex and the jokes about this going over her head?[65]The Claimant is vague about when she says this happened stating that it was at some point in 2014. She did not specify when at the time and made no such complaint during the grievance process is she subsequently took out. The allegation first emerged, so far as we were made aware, in the course of further particulars given in this litigation, a long time after when the event was said to take place.[66]In this context the Tribunal does not consider we are able to make a finding of fact with any confidence one way or the other as to whether this happened. If pushed to make a finding the Tribunal would say that the Claimant has not positively satisfied the Tribunal that the remarks were made. Allegation A (i) (4) – repeatedly suggesting that a particular customer fancied the Claimant[67]Here there is a flat contradiction between the two parties’ versions. The Claimant’s evidence was that this occurred on about five occasions in 2014 and 2015.[68]On the balance of probabilities the Tribunal finds that one or two comments probably were made in jest, as part of office banter, but that it was not done frequently and not something that the individuals concerned would have been likely to have remembered when questioned about it a long while after the events. Allegation A(i)(5) – suggesting that Dean Coppen fancied the Claimant[69]This is an allegation that, around the end of January 2015, after the Claimant’s relationship director at that time, Mr Coppen, had given the Claimant a lift when visiting a client, the Claimant felt dizzy as it had been a warm day; and told Ms Balster that when asking her if she was okay. The Claimant says that Ms Balster then said “Adeshree, Dean made his car warm so he can get you to take your clothes off for him”; and Ms McWee overheard the comment and both started laughing at the Claimant.[70]Again, on the balance of probabilities, the Tribunal find that this remark was made and was consistent with office banter that took place from time to time. The individuals concerned were probably unaware that the Claimant was taking such remarks in anything other than light hearted vein. Allegation A (ii) – teasing about the Claimant lunches[71]The Claimant says that from about May 2013 until about September 2015, Ms McWee would pick on the Claimant going to lunch with friends, criticising her choice of lunch, venue, criticised her for going to an Indian restaurant for curry so that she smells of curry and made the office stink; and criticised her choice of Nandos asking why she went there given that the food was so horrible.[72]On balance of probabilities we find that, whilst Ms McWee might have occasionally made a light hearted comment about the Claimant going to Nandos so often, we find that she did not criticise her for having curries or criticised her choice of Nandos. When meeting with Mr McDonald in January 2016 the Claimant complained about being teased about things such as a dress, who she went to lunch with and messages on her phone; but did not complaint about being criticised for what she ate. Ms McWee appeared to the Tribunal to be convincing in her evidence that she and her children went to Nandos themselves. Ms McWee’s evidence that was unaware that Nandos has South African origins was also plausible and convincing, as there appeared to be no obvious reason why she would know this. Allegation A (iii) – referring to the Claimant as ‘Princess’[73]The Claimant says that these comments started in about 2014 and continued until the start of her sick leave; that it happened regularly in the ordinary course of typical office conversations; and gives particular examples of Ms Farmer introducing her to customers at the 2014 Christmas party as “princess”; and one unknown member of staff placing a “princess” sticker on her computer in 2014.[74]The parties agree that Mr Lutterloch, one of the Claimant’s colleagues, did from time to time call the Claimant “princess”. The Claimant accepted when cross-examined that she got on well with Mr Lutterloch and once he had explained that it was meant as a compliment and he admired her, she did not object to him calling her “princess”.[75]Ms Farmer also agreed in her evidence that, at a Christmas party in December 2014, when the Claimant was talking to a client, she (Ms Farmer) made a comment to the client about the Claimant being referred to as “princess” in the office.[76]The parties dispute whether the expression was used frequently and by many people in the office; whether the Claimant was upset about it; and whether an anonymous individual typed and put a laminated sticker on her work computer in 2014.[77]We find that more people and on more occasions than the Respondent’s witnesses accept did refer to the Claimant as “princess”. Ms Farmer’s evidence that it was only Mr Lutterloch that was did so was unconvincing as she referred to it being the Claimant’s nickname in the office, when speaking with the client at the Christmas party. Mr Falkingham referred to having heard several people call the Claimant “princess” in paragraph 35 of his witness statement; although he was more guarded as to who these people were when he was cross-examined.[78]We also find, on balance of probabilities, that there was a sticker placed on the Claimant’s computer. We do not believe that this was something made up by the Claimant or that she was mistaken on this.[79]The Tribunal does not find, however, that the Claimant asked the individuals at the time not to call her princess at the time. We find that what took place was that they heard Mr Lutterloch calling the Claimant princess; the Claimant seeming to be happy with him doing so and assuming that she was happy with it as an occasional nickname. If the Claimant did ask team members not to call her princess, we find that she would have done so infrequently and without any great conviction so as for the individuals concerned to realise that they were upsetting her. If she had been regularly taunted about this against her wishes we consider it likely that she would have mentioned it in her meeting with Mr McDonald to whom she complained about being teased about her dress, who she went to lunch with and messages on the telephone. Allegation A (iv) - suggesting that the Claimant had a fake designer bag[80]The Claimant and relevant witnesses for the Respondent agreed that some of the women returned from holidays with handbags. Some had been to Turkey on holiday and bought non designer handbags. The Claimant had been on holiday in Thailand and had bought a new designer handbag.[81]The parties dispute whether the women teased the Claimant about her handbag and joked that it was a fake designer handbag and that the Claimant then produced a receipt to prove it was genuine.[82]On the balance of probabilities we find that some of the remarks were probably made in what was intended to be a light hearted manner about the Claimant returning with a designer handbag. That is consistent with the Claimant’s nickname of “princess” and consistent with a perception amongst some of the Claimant’s colleagues that she came from a privileged South African background. Allegation A (v) – lack of support with organising Macmillan fund raising event[83]The Tribunal finds that the disputes about this issue are ones of perception more than of substance, with both the Claimant’s and the Respondent’s perceptions having validity.[84]The Respondent organised Macmillan fund raising event in 2014, with coffee, cakes and refreshments being provided. In this year in question it was the Claimant’s turn to organise the event.[85]The Claimant accepts that various individuals, including Ms Faulkner, baked cakes for the event.[86]The event was a success with a record amount of money being raised during this year that the Claimant organised it.[87]The Claimant felt that she received insufficient support, particularly from Ms Farmer. Ms Farmer accepts that with the office being short of staff that day she may have asked the Claimant to undertake a task for a customer whilst the Claimant was preoccupied with organising the event.[88]Although we accept that the Claimant genuinely felt that she was unsupported, we find that there was no deliberate intention not to support her. The Claimant agreed that Ms Faulkner and Ms McWee baked cakes for the event and the Tribunal does not believe that Ms Farmer would have wanted a charitable fund raising event to be anything other than successful. Allegation A (vi) – reading the Claimant’s phone messages without her consent[89]This is an allegation that Ms Balster, who sat next to the Claimant and was her “buddy” read messages for the Claimant on an occasion in September 2015.[90]On the balance of probabilities we find that Ms Balster did do so on this occasion. We so find including because:90.1 It was a complaint made by the Claimant to Mr McDonald relatively contemporaneously. It does not appear to us to be something that the Claimant would make up.90.2 Equally, if it did take place, it would be something that Ms Balster might be embarrassed about and reluctant to agree that she did.90.3 It is close in time to a text message exchange between the Claimant and Mr Brinn in which they were exchanging text messages about Jo (Maynard) and Nikki (McWee) not liking the two of them going out to lunch together and “whatsapping” together. Colleagues were showing an interest in their relationship and gossiping about it so looking at a text of the Claimant’s would have been consistent with that sort of curiosity.90.4 Ms Balster had the opportunity to do so as she sat on a desk next door to the Claimant and was her “buddy”. Allegation A(vii) – comment made to Adam Brinn about lunching with the Claimant[91]This is a dispute as to whether, in about September 2015, Ms McWee told Mr Brinn that he should not go to lunch with the Claimant, or trust her, because she was foreign.[92]In the bundle of documents produced for the Tribunal, there was an exchange of text messages between the Claimant and Mr Brinn about there being gossip about their relationship with each other.[93]Although not referred to in the Respondent’s witness statements, as referred to above, Ms Maynard, when cross-examined, did say that there were concerns in the office about Mr Brinn and the Claimant having a relationship went beyond a professional relationship; and being concerned as Mr Brinn’s partner was pregnant and the Claimant was married. There was, therefore, disapproval that their friendship might be going beyond professional boundaries. It is also consistent with the previous allegation in that there was a text message (to which the Tribunal was referred in the bundles of documents) between Mr Brinn and the Claimant referring to Elise (Balster) seeing emails in the Claimant’s inbox.[94]The Tribunal finds that these remarks were made. Allegation A(viii) – criticism about the Claimant’s phone usage[95]There is no great dispute as to the facts about this allegation. The Respondent witnesses accepted that they did criticism the Claimant’s when her private telephone went off in the office. Their explanation was that it was noisy and disturbing to them whilst at work.[96]The Claimant’s evidence was that she was no different to her colleagues and would also have their telephones “ping”, but they would not be criticised in a similar manner.[97]On the balance of probabilities we find that it is likely that individuals other than the Claimant would also be asked to switch off their telephones or make them less noisy. It appears to us likely that the noise would have been distracting in an office and the Claimant would not have been singled out in this respect, although it may have been her perception that she was. Allegations in section B of the list of issues- Treatment from Joanne Farmer and Jason Falkingham as line managers Allegation B(i)- Joanne Farmer observing team members ganging up on the Claimant but taking no action to ensure that other team members treated her with respect[98]As referred to above Ms Farmer had worked for a number of years with the individuals that had transferred from the Respondent’s Laindon office to Chelmsford and had close relationships with them. The Tribunal considers, and finds, that it is likely that Ms Farmer was aware of the views of the Chelmsford office about the Claimant; and was aware of the culture of the office. Ms Farmer was, for example, as referred to above, aware of the Claimant having a nickname of “princess”; and she worked predominantly at the Chelmsford office and next to, or close by those she was managing in an open plan office.[99]The Tribunal finds that Ms Farmer was aware of at least some of the matters to which we have referred above (to the extent we find them to have occurred) even although she may not have physically witnessed them herself. We found Ms Farmer unconvincing at times as a witness and reluctant to give the Tribunal a full story, as referred to in our findings earlier above. Ms Farmer also referred, in an interview she had with Mr Aldred to which we refer later in our findings of fact, to some people being very hostile to the Claimant.[100]Other than for a short period when the Claimant was placed on an action plan (to which we refer below) Ms Farmer’s desk was some distance away from the Claimant’s and we accept that Ms Farmer may not have personally witnessed some of the teasing that was taking place.[101]Mr Farmer did, however, reprimand Ms Balster on one occasion when she felt that Ms Balster behaved aggressively towards the Claimant. This occurred during the time that the Claimant was placed on an action plan (to which we refer later below); and Ms Farmer was sitting beside the Claimant about two days a week in order to monitor the action plan. Allegation A (ii) – being told that she is “South African, a direct person and needed to change her approach” by Joanne Farmer at most of her one to ones from April 2013 to August 2015[102]The Tribunal finds that this was a regular comment, or criticism, made by Ms Farmer towards the Claimant. We so find because:102.1 In notes made by the Claimant of her interview with Mr Falkingham on 27 August and 1 September 2015, which was a relatively contemporaneous record, the Claimant referred to Ms Farmer telling her that on 5 August 2015 she was told by Joanne Farmer that she had spoken to Jason Falkingham and HR and decided to put her on an action plan rather than PEP because she was South African and a direct person.102.2 She complained of being told continuously by Ms Farmer that she was South African, a direct person and needed to change her approach.102.3 Likewise, in a complaint she made to Mr McDonald, she complained to Mr McDonald that Ms Farmer frequently referred to her as being South African and direct and complained that she did not see her being South African as a problem and felt that it was the only team where it would be perceived as a problem.102.4 In Ms Farmer’s witness statement she was insistent that she only made such a reference once in a one to one meeting.102.5 This part of Ms Farmer’s evidence was unconvincing. For example, in her contemporaneous response to the Claimant’s complaint Ms Farmer wrote “Adeshree (the Claimant) talks about comments I have made in relation to direct communications style and South Africa which is true”. The fact that she refers to comments in the plural suggests that she was agreeing with the Claimant’s allegation and did not, at that time, consider her behaviour to be in this respect to be problematic.102.6 In cross-examination she backtracked from her witness statement when challenged on what she had written at the time but said that she could only remember one occasion.102.7 In notes of a conversation between Ms Farmer and the Respondent’s Human Resources Advisers, to which Mr Falkingham was copied, a reference was made to Ms Farmer stating “she is from South Africa and her tone of voice can sound harsh”.[103]The Tribunal finds that Ms Farmer realised some while after the events that her frequent references to the Claimant being South African and direct might be considered racially offensive and has sought to downplay them. This is consistent with our findings of fact above and also with other instances in Ms Farmer’s evidence when the Tribunal considered that she was giving an incomplete or misleading picture in her evidence. Referring to the Claimant as being South African and direct was an assumption on her part, as she accepted when cross examined that she did not have any South African friends; and gave no explanation for why she considered that being direct was a characteristic of South Africans in general, or a non white South African of Asian origins in particular. Allegation B (iii) – being told by Joanne Farmer on 16 July 2015 she would be placed on a Performance Improvement Plan due to her allegedly direct approach as a result of her nationality and refusing subsequently to provide her with a sufficient explanation or supporting evidence to justify such a step Allegation B (iv) – being placed on an “action plan” on 5 August 2015 by Joanne Farmer and Jason Falkingham due to her allegedly direct approach as a result of her nationality[104]It is agreed by Ms Farmer that she did tell the Claimant on 16 July 2015 that she would be placed on a Performance Improvement Plan; and that she was placed on an “action plan” on 5 August 2015 by her, having consulted with Mr Falkingham first.[105]The Respondent’s Performance Improvement Plan is an informal capability procedure of the Respondent- if the employee concerned does not complete the Performance Improvement Plan to the satisfaction of the manager, formal disciplinary proceedings on capability grounds would be likely to commence.[106]An action plan is a more informal process where an employee has their performance actively monitored. It does not form part of informal or formal capability procedures.[107]Ms Farmer’s explanation for telling the Claimant that she would be put on a Performance Improvement Plan then subsequently putting her on an action plan was that it was a combination of negative feedback she had received from Mr Coppen, comments from clients and a recent poor “click tools” survey response (being a form of customer survey). She denied telling the Claimant on 5 August that it was because she was South African and direct although, as found above, we find that she did tell the Claimant this when giving her explanation for putting the Claimant on an action plan. We so find because:107.1 Part the explanation putting the Claimant on an action plan was because of Mr Coppen, the Relationship Director that the Claimant was responsible for supporting at that time. Mr Coppen did not appear as a witness at the Tribunal although he remains an employee of the Respondent, we were informed. So far as the Tribunal is aware no explanation was given for him not being called as a witness for the Respondent.107.2 Although the Claimant send an email to Ms Farmer asking for further details of the criticisms being made of her, Ms Farmer did not respond to it.107.3 The Claimant gave Mr Falkingham detailed comments about Mr Coppen’s criticisms in about a 60 page document. Mr Falkingham, like Ms Farmer, did not respond to the Claimant’s written document.107.4 When cross-examined about the specific criticisms and the “click tool” survey Ms Farmer was unable to give any satisfactory evidence to support her explanation.107.5 In the performance appraisal in which she referred to placing the Claimant on a Performance Improvement Plan, Ms Farmer referred to the Claimant being a “direct individual” and needing to spend more time reflecting before taking action. Allegation B (v) – being told by Jason Falkingham at informal meetings on 27 August 2015 and 1 September 2015 that he agreed with Joanne Farmer’s criticisms and she should change her approach and adopt a “chameleon style” given her allegedly direct approach concerning her nationality Allegation B (vi) – Jason Falkingham ignored the Claimant’s complaint made in September 2015 about Elise Balster accessing her phone to read her personal messages Allegation C (i) - Jason Falkingham failed to address the Claimant’s complaint about Joanne Farmer’s discriminatory remarks adequately at the informal meetings on 27 August 2015 and 1 September 2015[108]Mr Falkingham had concerns about the Claimant’s work, particularly her relationship with Mr Coppen, the relationship director she was supporting at that time.[109]Mr Falkingham’s explanation for these concerns were that they were based mainly on Mr Coppen making complaints to him about the Claimant, partly from Ms Farmer doing so and partly from his observation of the two of them starting to bicker together.[110]Mr Falkingham and the Claimant had meetings on 27 August and 1 September 2015. They disagree about who called the first meeting although for our purposes this does not matter.[111]The Claimant complains that Mr Falkingham indicated to her through his body language and attitude in their meeting on 27 August that he was not taking her seriously, a complaint Mr Falkingham denies. The Tribunal finds that the Claimant’s interpretation of the meeting is correct. This is borne out by Mr Falkingham’s evidence generally being very unimpressive (as indicated above) and particularly so in these elements of his crossexamination. Mr Falkingham’s notes of the meeting concentrated on his reasons for holding the meeting, while giving very little reference to the complaints the Claimant was making. For example, when the Claimant sent, as they had agreed, her notes of the meeting by email to Mr Falkingham she included a number of serious complaints about Ms Farmer, the treatment she had received in the team in which she worked, about Ms Balster; and provided to the meeting 60 pages of documents she had prepared showing, she said, that she was being caused a lot of extra work by mistakes made by Mr Coppen. All these were ignored by Mr Falkingham, his explanation being that they were not relevant and a distraction. This was a surprising response from someone who claimed in his witness statement to have had training on equal opportunities and is at variance with the Respondent’s own policies.[112]Amongst the notes of the meetings on 27 August and 1 September recorded by Mr Falkingham were:112.1 Concerns Mr Falkingham had about the working relationship between her and Mr Coppen and that these were affecting client relationships and that she was currently on an action plan to help her improve client satisfaction.112.2 He recorded the Claimant complaining that others disliked her and were picking on her, complaining about cliques, people verbally attacking her and being told that she was too direct the clients.112.3 Mr Falkingham responding that he saw no evidence of difficulties in the team and that the external profile of the team was very positive and the employee opinion survey results constantly strong.112.4 Agreeing steps that should be taken by the Claimant to help with her work.112.5 Agreeing that the Claimant would write her own notes of the meeting.[113]On 2 September 2015 the Claimant sent an email to Mr Falkingham with her record of the meeting. Amongst the points made in her minutes of the meeting were the following:113.1 Complaining that at her one to one meeting on 5 August 2015 Joanne Farmer had told her “I have spoken to Jason Falkingham and HR and it was decided to put you on an action plan rather than PEP because you are South African a direct person and it is something the bank can address quick and easy”.113.2 Complaining that Joanne Farmer was ignoring the issues she raised with her, continuously defending Dean Coppen and continuously telling her “Adeshree you are South African a direct person and you need to change your approach”.113.3 Stating further down “I feel being South African and direct is not a problem at all”.113.4 Ms Farmer referring to her as a “trouble maker”.113.5 Complaining that Elise Balster was looking at messages of hers on her personal mobile that she had left on her desk.113.6 Various other points in the Claimant’s notes of the meeting that were similar to those of Mr Falkingham.[114]Amongst the action points noted by Mr Falkingham in his notes of the meeting and by the Claimant in her notes was a reference by Mr Falkingham to her style with different clients to suit the circumstances e.g. to be more of a “chameleon”. Mr Falkingham’s explanation for this was that it had nothing to do with the Claimant and her South African nationality but was merely for her to adapt her style according to the clients she was supporting.[115]The Tribunal does not accept this explanation. In his handwritten notes of the meeting Mr Falkingham’s notes record “African direct – gave my view – chameleon”.[116]Additionally, on his own initiative, Mr Falkingham telephoned a former colleague of the Claimant, called Mr Jooste, who had worked with her when she previously worked in the Respondent’s Ipswich retail bank.[117]Mr Jooste was not the Claimant’s line manager, nor someone line managed by Mr Falkingham. He is, however, of South African origins although, not so far as we are aware, of Asian South African origins.[118]Mr Falkingham’s explanation for why he spoke with Mr Jooste to discuss the Claimant and her approach was particularly unconvincing and, frankly, the Tribunal does not believe that he was being honest in this aspect of his evidence. His replies were evasive, punctuated by long pauses and contradictory. He disputed at first that he knew Mr Jooste was South African, did not refer to his conversation with Mr Jooste in his witness statement and made no reference to what Mr Aldred recorded, in an investigation of a grievance subsequently brought by the Claimant, of his discussions with Mr Jooste.[119]Mr Aldred recorded Mr Falkingham as explaining that Mr Jooste also had a South African background; that Mr Jooste had said that there had been challenges in the Claimant’s previous role in Ipswich; and Mr Jooste said “he has adapted to British culture and she hasn’t”.[120]We do not accept Mr Falkingham’s explanation for contacting Mr Jooste. The true explanation, we find, was, as is the Claimant’s case, that he was doing so to lend support for Ms Farmer’s assertion that the Claimant was “South African and direct” as part of her justification for putting the Claimant onto a Performance Improvement Plan, subsequently changed to an action plan.[121]This is consistent with Mr Falkingham ignoring the Claimant’s complaints about Ms Farmer, Ms Balster and her team mates, and ignoring the Claimant’s criticisms of Mr Coppen; whereas he accepted Mr Coppen’s criticisms of the Claimant.[122]Nor does the Tribunal believe that Mr Falkingham was unaware, as he asserted in his evidence, that the Claimant’s complaint about Ms Farmer’s constant references to her being South African when she (the Claimant) did not feel that being South African should be a problem, was a complaint of race discrimination. If he was unaware that the Claimant was making a complaint of race discrimination we do not understand why he should chose to contact a South African about the Claimant, rather then one of the Claimant’s previous line managers.[123]Also of note is that the Respondent’s employee relations (Human Resources) advisors sent a copy of notes they made of a conversation Ms Farmer had with them in which they refer to Ms Farmer stating “she is from South Africa and her tone of voice can sound harsh”. Mr Falkingham did not challenge Ms Farmer about this.[124]Evidence of Mr Falkingham having some hostility towards the Claimant can be shown by Mr Aldred, in a subsequent investigation of the Claimant’s grievance, referring to Ms Farmer telling him that Ms Farmer had said that she was told by Mr Falkingham “the honeymoon is over and relationship directors are finding AA (the Claimant) challenging”.[125]Mr Falkingham’s ignoring of the Claimant’s concerns is at variance with policies to which the Tribunal was referred. One such policy is a policy promoting respect, diversity and performance in the workplace, described as “The Barclays Way”. This includes a statement that Barclays does: “welcome and foster diversity within our workplace”; and “take a zero tolerance approach to bullying and harassment”. Allegation B (vii) – Joanne Farmer attempted from 4 January 2016 onwards to overburden the Claimant’s already excessive workload, by allocating her additional work on the secondment of a colleague, despite other colleagues having a lesser workload[126]As referred to earlier above, the Respondent had a system where work relationships support managers would divided into pairs where one was the “buddy” of the other. The buddy was expected to cover the others work when they were away, on holidays or other short term absences from work.[127]Up to the incident in question the Claimant, so far as the Tribunal was made aware, had covered her buddy, Ms Balster, when Ms Balster was away. She had on a previous occasion covered a one month secondment.[128]Ms Balster obtained a six months secondment, learning of this in December 2015.[129]Ms Farmer informed the Claimant that she would be covering Ms Balster’s work while she was on the six months secondment.[130]The Claimant told Ms Balster that she did not have the capacity to do this and she refused to do so.[131]Ms Farmer, in turn, was upset with the Claimant’s refusal. She told the Claimant that she would inform Ms Galvin (a more senior officer) and HR of this and asked her to rethink the decision as it went against the “Barclays values”. On 4 January 2016 there was an exchange of emails between the two of them following their meeting that day which ended with Ms Farmer stating to the Claimant in an email “would you like to speak to me or just keep sending emails?” She accepted, when cross-examined, that her response was rude.[132]The Claimant, by email dated 6 January 2016, made a complaint about the issue to Mr McDonald, a more senior manager (the Tribunal is unsure whether at that stage Mr McDonald was sharing Ms Farmer’s management with Mr Falkingham or whether he was Mr Falkingham’s manager).[133]By email dated 7 January Ms Farmer apologised to the Claimant for the manner in which she had approached the issue; and expressed the hope that her (Ms Farmer’s) suggestion that they remove the more demanding clients would alleviate those concerns.[134]The issue was resolved by other members of the team also taking on some of Ms Balster’s work. Allegation B (viii) – Joanne Farmer refused her request made on 7 April 2016 for a half day’s holiday, and instead insisted that she take full days holiday Allegation B (ix) – Joanne Farmer on 8 April 2016 refused her request to leave work at 3.00pm in circumstances where she had been working until 8.30pm the previous evening[135]On 7 April 2016 the Claimant sent an email to Ms Farmer to request half a day’s leave on 28 April 2016.[136]In dispute is whether Ms Farmer refused her request, explaining that the bank’s policy had changed about having a half day’s leave (as was the Claimant’s evidence); or whether she did not refuse and the Claimant herself changed her request from a half day to a full day’s leave request.[137]The Claimant clearly understood that her request was being refused, as it forms part of an interview she had with Mr Aldred as part of Mr Aldred investigating a grievance the Claimant subsequently took. This records that she had been told that she could not take half a day’s holiday anymore as Joanne Farmer had said that the policy had changed and her request was declined.[138]As part of an investigation of this complaint, Mr Falkingham’s personal assistant, Jo Wiseman, recorded that the Claimant had requested half a day’s holiday which she had discussed with Jo Farmer and that Adeshree (the Claimant) then approached Jo (Farmer) and that they had a conversation during which Adeshree advised that she wanted the whole day rather than half a day; and Jo Farmer stated she could have either; and that Adeshree then said she only wanted the half day which was what was booked for her but then cancelled. There appears therefore to be a contradiction between the two email messages. On the balance of probabilities we find that the request was refused, although Ms Farmer may have had a misunderstanding about the Respondent’s policy at that time.[139]The Claimant, on 8 April 2016, sent Ms Farmer an email asking for flexi time – to leave the office at 3.00pm rather than her normal finishing time of 5.00pm. She referred to having left the office at 8.30pm the previous evening. The Respondent has a flexi time policy.[140]Ms Farmer did not reply to the email. Her explanation is that she was in one to one meetings and that when, in the afternoon, she looked into the Claimant’s office, the Claimant had left. In contrast, the Claimant said that she had not left and worked until 5.00pm because she had not been given permission.[141]This is another finding that is not particularly easy to make. On the balance of probabilities we find that Ms Farmer was unaware of the request until late and that when she looked into to see the Claimant, either the Claimant had left, or was not at her desk at that point. The Claimant’s request was made at short notice and it appears likely that if Ms Farmer was in meetings, or involved in other tasks she may not have read the Claimant’s request until too late. Allegation C (ii) – Gary McDonald failed to addressed the Claimant’s complaint against Joanne Farmer adequately at the investigation meeting on 12 January 2016 and in the outcome meeting on 18 February 2016[142]Mr McDonald had been copied with the Claimant’s complaint about having to take over Ms Balster’s work whilst Ms Balster was on a six month secondment. Ms Galvin was another recipient and the manager of Mr McDonald. They, together with a human resources business partner, decided that Mr McDonald should meet with the Claimant to discuss her complaint and find out whether she wanted to lodge a formal grievance.[143]Mr McDonald met the Claimant on 12 January 2016 and they had a long discussion of concerns or complaints raised by the Claimant.[144]Mr McDonald took notes of the meeting and sent them to the Claimant. The Claimant returned the notes with some additional notes of her record of the meeting.[145]Amongst the concerns or complaints made by the Claimant were the following:145.1 She did not feel that she had been made to feel welcome by some relationship support managers from the start of the time she worked at the Chelmsford office. She felt that she had been picked on by older staff members, who had either downplayed her ideas or teased her about things such as her dress, who she goes to lunch with or messages on her phone; and that she continued to feel uncomfortable with the team as, she said, had others.145.2 She felt that Jo (Farmer) continually talked about two recurring issues – the fact that she is South African and had a direct communication style.145.3 Amongst the additional points made by the Claimant which she returned to Mr McDonald was an allegation that another member of staff had told her that they had been told not to trust and go to lunch with her because she is foreign and that they should stay away from her.[146]Mr McDonald telephoned the Respondent’s employment relations department. Amongst their notes of the telephone conversation are the following:146.1 A reference to the Claimant being “South African and of Indian descent”.146.2 She had alleged that a member of staff told another colleague that she could not be trusted because she is foreign.146.3 She had also received feedback about being direct and alleges that it was said that this was due to her ethnicity.146.4 The concerns Adeshree (the Claimant) has in relation to her colleague included alleged comments related to her nationality/ethnicity.[147]In Mr McDonald’s note of a conversation he had had with the Claimant on 20 January 2016 Mr McDonald referred to the Claimant feeling that this was the only team in which her national origin would be questioned.[148]In cross-examination Mr McDonald disputed that he realised at the time that the Claimant’s complaints included a complaint of race discrimination.[149]The Tribunal does not believe Mr McDonald on this point. He was hesitant and indeed evasive when cross-examined on this issue and his evidence was at variance with his witness statement giving details of equal opportunities training he had received, his seniority with the Respondent; his evidence that he had considered other grievances; and the Respondent’s policies to which we have referred, which also refer to race discrimination being treated as a matter of disciplinary action. More likely, we find, was that he was seeking to turn a blind eye to what he clearly understood at the time might well be a complaint of race discrimination. The notes made by the Human Resources advisor’s discussion with Mr McDonald, referred to at paragraph 143 above, suggests that Mr McDonald was aware that the Claimant was complaining of race discrimination. It also appears reasonably obvious that the Claimant putting in bold type that a member of the team had told her that they (the team she worked in had been told not to trust and go to lunch with her because she is foreign was a complaint about discriminatory treatment because of her foreign nationality).[150]Mr McDonald’s subsequent dealing with the Claimant’s grievance also persuades us that he was turning a blind eye to what were serious allegations being made by the Claimant.[151]Mr McDonald sent a questionnaire to the relationship support managers the Claimant worked with. These asked a number of questions about the leadership of Jason Falkingham and Joanne Farmer; and whether there were any poor behaviour on display such as bullying and whether anyone might feel that they were victimised. He did not in that questionnaire refer to the Claimant by name, his explanation being that he wished to get a feel for the atmosphere in the team rather than highlighting the Claimant’s specifically.[152]He also asked questions of others within the team including relationship directors. The responses were anonymous, although some of the people responding were identified by name to the Tribunal.[153]Amongst the responses made to Mr McDonald were the following:153.1 Mr Lutterloch in his reply stated that they were cliques within the team; that Adeshree (the Claimant) could have had more support from Jo (Farmer) and from her buddy (Elise Balster) and “she has had it difficult”. He also stated that she did not help herself as her approach was hands off and ‘that is not my job’. Overall he stated there was good atmosphere and he had not seen any bullying.153.2 Ms Tracy White stated that there were cliques within the team, that she had not seen any bullying but that passions could run high which could come across as aggressive.153.3 Another relationship support manager stated that there was a clique of the ex Basildon RSMs which is forceful and that the whole team likes a gossip; and that there was an issue of Ms Farmer behaving unprofessionally by shouting things down the office rather than speaking to people quietly.153.4 Another relationship support manager stated that Jo (Farmer) had favourites and if they went out socially they would get on better, which she felt was unprofessional and the Jo Farmer was prone to losing her temper. The individual concerned also stated that Jason (Falkingham) was too close to Jo Farmer and protected her; and that when she had raised an issue about Jo Farmer with Jason Falkingham this was ignored.153.5 Another relationship support manager referred to the Claimant not being treated differently from anyone else but that there were personality clashes which needed to have been nipped in the bud and needed senior leadership feedback.153.6 Another relationship support manager questioned whether Jo Farmer and Jason Falkingham were too close to provide a challenge to each other.153.7 Ma Jackie Faulkner referred to the Claimant being the only member of the team “not playing ball” whereas there was a strong team who worked and socialised together well.153.8 A Relationship Support Manager, Mr Ruston, referred to the Claimant being offered assistance but not accepting it; and that there were personality clashes and she never got on with anyone.153.9 Ms Balster also referred to Ms Farmer tending to shout across the room and stated that she did not think that the secondment was handled in the right way for the wider team and that the Claimant should have been consulted rather than having assume that her reaction would be positive.153.10 Mr Coppen’s response was that the Claimant did not make life easy for herself, was welcomed well but did not react positively.153.11 A number of those interviews spoke warmly and positively about the leadership, of Ms Farmer in particular.[154]Mr McDonald received a response from Ms Farmer as to his notes of his meetings with the Claimant. Amongst her responses, as referred to earlier above, was in response to the Claimant’s complaint of having been referred to as being South African and direct. Her response included the typed statement “Adsheree talks about comments I have made in relation to direct communications style and South African which is true”; and then went on to explain this. Of note, as referred to earlier in this judgment, is her reference to comments (plural) as opposed to her evidence the comment was only made on one occasion.[155]Mr McDonald met with the Claimant on 18 February 2016 to give her the outcome of his grievance investigation. He notified her that having interviewed the team and collated feedback, Jo Farmer was to undertake a meeting to cover the culture, atmosphere and collective standards for the team to improve morale and achieve consistency. He set out a number of bullet points as to the way forward.[156]Mr McDonald accepted when cross-examine that he had not explored with any of the team their comments about issues such as the Claimant having personality clashes or having found it difficult. Nor did he explore the allegation about being told that the team had been told not to go out to lunch with her because she is foreign. Nor did he explore with Ms Farmer the allegation of frequent references to her South African nationality. In short, Mr McDonald’s evidence was unimpressive and gave the impression that he knew of the Claimant making a reference to being racially discriminated against and was unwilling to investigate it. Grievance investigation by Mr Aldred[157]Although Mr Dobson submitted that no findings of fact should be made about Mr Aldred’s grievance investigation we disagree. So far as we consider them of evidential value in deciding the issues we are required to decide, we consider them relevant. Indeed, so must the Respondent, as they called Mr Aldred as a witness to the hearing, produced documents in the bundle supplied by him and must, therefore, have anticipated that his evidence would be considered relevant.[158]The Claimant was unhappy about Mr McDonald’s investigation of the Claimant’s grievance and submitted a formal written grievance.[159]The Claimant’s letter was headed “discrimination in the workplace and been treated unfairly”. She stated that she wished to raise a formal grievance against her line manager Joanne Farmer on the basis of being discriminated due to her national background. She stated that Ms Farmer kept saying “Adeshree you are South African and a direct person you need to change your approach, she never wants to help nor support me from the time I started within the Essex team”. The Claimant also made a complaint about having spoken to Jason Falkingham about the discrimination and that he told her that she needed to adopt “the chameleon style”.[160]The Claimant complained that she had raised an informal complaint and that the issue was just ignored (she was complaining about Mr McDonald’s investigation). She went on to state that she felt that she was not taken seriously so had not choice but to use an external solicitor to help support her. She expressed the hope that an independent person would be appointed to investigate the complaint.[161]Mr Aldred was appointed to investigate the complaint. His position was described as being industry director, business and professional services teams. He is experienced in investigating grievances, has received training in the Respondent’s disciplinary, capability and grievance procedures, taken refresher training; and has also taken a course in subconscious bias.[162]In order to investigate the grievance Mr Aldred met the Claimant on 23 June 2016.[163]Mr Aldred spoke with Mr McDonald, Mr Falkingham and Ms Farmer. We have made some references to their responses in our findings of fact, such as Mr Falkingham’s explanation for having contacted and spoken with Mr Jooste.[164]Mr Aldred did not uphold the Claimant’s grievance. The Tribunal was unimpressed with Mr Aldred’s evidence; and the impression created to the Tribunal was of his relying on the responses given by Messrs Farmer, Falkingham and McDonald rather than carrying out any independent investigation of his own. He rejected the allegation of bullying without investigating the comments of any of the individuals who had responded to Mr McDonald survey in ways that might have been seen as warning signs. He accepted Ms Farmer assertion that she had only raised the issue of the Claimant being South African and direct only once. He did not give an explanation as to why he preferred what Ms Farmer had said rather than the Claimant. He accepted Mr Falkingham’s assurance that it was not evident to him that the alleged discrimination was a concern to her. He gave no opinion as to whether Ms Farmer’s reference to the Claimant being South African and direct (which she did accept that she made on one occasion) was in itself racially discriminatory. Evidence as to time limits[165]The Claimant’s explanation for bringing her claim when she did, rather than at an earlier time was as follows:165.1 She had been a loyal Barclays employee for many years and wanted to make a success of her role as she had each of her previous ones.165.2 She wanted to get on well with her colleagues and Joanne Farmer and hoped matters would improve if she became more established in the team.165.3 She did not wished to be labelled as a trouble maker particularly as Joanne had labelled her as one after she had raised issues about her working relationship with Dean Coppen.165.4 She felt that the behaviour she was experiencing from her colleagues was intensifying and make her feel more stressed; and that being placed on a performance improvement plan, subsequently changed to an action plan was unfounded and caused her to join a union for the first time.165.5 She had attempted to resolve the issues with Jason Falkingham then made an informal complaint about the mishandling of cover arrangements for Elise Balster’s secondment.165.6 Her key complaint of discrimination was completely ignored and she was accused of failing to have co-operated in her attitude to cover the work.165.7 Once she had received Mr McDonald’s outcome she decided to adopt a twin track approach of raising a formal grievance but also issuing proceedings. The Claimant was referring to her meeting with Mr McDonald on 18 February 2016.165.8 The Claimant contacted a solicitor in 2016. Although she does not remember the exact date she did so, her evidence suggests that it would have been around the time that Mr McDonald gave the Claimant her grievance outcome. He relied on the solicitor as to Employment Tribunal time limits to “guide her along”. Closing Submissions[166]Both representatives gave lengthy and helpful typed submissions, to which they expanded orally. They gave submissions as to the relevant law, the facts they invited the Tribunal to find and went point by point through the individual allegations.[167]Whilst the Tribunal was reading the respective typed submissions, we gave the representatives an opportunity to read the other representative’s submissions. The Tribunal encouraged the representatives to concentrate on commenting on the other representatives submissions, rather than repeating their typed submissions.[168]We do not set out the submissions in detail although we have borne them in mind.
Conclusions
[169]We have considered our conclusions on the allegations before considering whether they amount to acts extending over a period; and if, or the extent to which, we consider that they are out of time, whether time limits should be extended. The issue of whether the claims would otherwise be successful is relevant to considering the respective prejudice that would be caused to the parties if time limits were to be extended or not to be extended. Prejudice, as referred to in the summary of the relevant law above, is one of a number of factors to be considered when considering whether it would be just and equitable to extend time limits. Whether the burden of proof passes to the Respondent[170]We have considered whether the Claimant has proved on the balance of probabilities facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the Respondent has committed an act of discrimination against the Claimant which is unlawful.[171]Although the burden of proof does not shift to the Respondent in respect of each of the allegations, considering the evidence we have heard as a whole, we consider that the Claimant has proved facts so as to cause the burden of proof to shift. We so find including because:171.1 Other than a vague reference from Mr Jooste to Mr Falkingham about the Claimant having had challenges at her previous role in Ipswich, the Claimant had worked for the Respondent for many years in a number of different offices without apparent problems. At the very least, she had nothing like problems in the previous offices of the Respondent where she had worked that she experienced in the Chelmsford office. This is not a case, as is sometimes an Employment Tribunal’s experience, of an employee starting with a new employer and having difficulties with a wide range of different people from near the outset of their employment.171.2 From the survey conducted by Mr McDonald some support was given to the Claimant’s complaint that she was not made to feel welcome at the Chelmsford office. There could, of course be a wide range of reasons why this might be the case, but it calls for a further explanation as to whether it might be connected with the Claimant’s race and nationality.171.3 The Claimant was the only non white member of a team coming into a workplace which various individuals described in the survey conducted by Mr McDonald as being “cliquish” and which Ms Farmer accepted was cliquish.171.4 There was a surprising divergence between the strong policies of the Respondent on issues such as dealing with bullying and harassment and taking discriminatory behaviour seriously. As set out in the Tribunal’s findings of fact above, the Claimant’s complaints of such discrimination were at best dealt with thoroughly inadequately or at worst ignored.171.5 As referred to earlier above, the Tribunal had concerns about parts of the Respondent’s evidence, particularly the sense that we were not provided with a full and accurate account by some of the witnesses for the Respondent and some of the Respondent’s witnesses appearing to the Tribunal to be at times evasive when giving their evidence.171.6 We have found Ms Farmer to have made frequent references to the Claimant being South African and direct. As she stated in evidence that she has no South African friends this gives the appearance of being an assumption on her part, perhaps a stereotypical assumption.171.7 The Tribunal rejected Mr Falkingham’s explanation for why he contacted a South African former colleague of the Claimant to enquire about her adaption about British culture and recorded Mr Jooste response when Mr Falkingham was being interviewed by Mr Aldred.171.8 As set out below, the Tribunal has concluded that the Claimant did, in respect of some of the allegations she has made, suffer sex discrimination, and race discrimination. Individual Allegations
Conclusions
[172]The Tribunal sets out below our conclusions as to the individual allegations of the Claimant. ALLEGATIONS A- The treatment received by the Claimant from the Essex team ( all of which are allegations of racial harassment, sex discrimination harassment and direct race discrimination) Allegations A- (i) (1) – (5) Teasing about coarse jokes and potential relationships Allegation A (i) nipple tassel/willie warmer comments[173]The first allegation (nipple tassel/willy warmer comments) we found not to have taken place, at least at the Christmas meal in question.[174]This allegation fails. Allegation A (i) (2)- teasing about potential relationship with Mr Smith and accessing her computer to find details of such a relationship[175]The allegation concerning Mr Smith was, by contrast, found by the Tribunal to have taken place; and the Claimant to have had her computer accessed to find details of such a relationship.[176]The Tribunal finds and concludes that the treatment in question was not because of the Claimant’s race. It was part of office banter taking place and white employees would also engage in time to time in banter about personal relationships.[177]The Tribunal has considered, next, whether the complaint succeeds (subject to considerations about time limits – as stated above we consider time limits at the end of these conclusions).[178]The conduct in question was unwanted conduct. The Claimant was upset about the comments and did not want Ms Balster to access her computer to look for possible details of Mr Smith being attracted to the Claimant.[179]The conduct concerned was related to the Claimant’s sex. The Claimant was being teased about a male colleague being sexually attracted to her as a woman.[180]The Tribunal does not consider that the behaviour concerned was done with the purpose of violating the Claimant’s dignity or creating an adverse environment for her. It was part of office banter. The Tribunal does conclude, however, that it had that effect. We accepted the Claimant’s evidence that it did.[181]Was it reasonable for the conduct to have that effect having in mind the Claimant’s perception and the other circumstances of the case? We find and conclude that it was. On its own, it appears a relatively trivial incident. Taken in context, however, it formed part of the office environment in which the Claimant was teased and felt uncomfortable. She did not fit in to what was a tight knit team, many of whom had worked together for many years and were forceful. Allegation (i)(3) – Lewd gestures and jokes[182]As referred to in our findings of fact the Tribunal did not consider itself able to make a finding of fact with any confidence one way or the other. This claim, therefore, fails. Allegation A (i) (4) - repeatedly suggesting that a particular customer fancied the Claimant Allegation A (1) (5) – suggesting that Dean Coppen fancied the Claimant[183]The Tribunal does not consider that these suggestions were related to or because of the Claimant’s race. We have concluded that in that office environment, it was the kind of office banter that might from time to time be made, whatever the individual’s racial origins. We have referred in our findings of fact to office banter amongst several of the employees, of whom only the Claimant was white. Jokes of this kind of nature could have been made against any of the team, whatever their racial origins.[184]The allegation succeeds as a sex discrimination harassment claim for similar reasons as for the allegation concerning Mr Smith. It was unwanted from the Claimant’s point of view. It was related to the Claimant’s sex in being a suggestion that the male customer in question was sexually attracted to the Claimant as a woman. In the context of the Claimant being teased, being uncomfortable about the teasing and being married, it was reasonable for her to consider it to have had the effect of violating her dignity or creating an adverse environment for her. This complaint succeeds.[185]Likewise, for similar reasons, we have concluded that the allegation concerning Mr Coppen also succeeds as a sex discrimination harassment complaint, although fails as a race discrimination complaint. It was banter of a sexual nature that Mr Coppen fancied the Claimant and wanted her to take her clothes off. Allegation A (ii) - teasing about the Claimant’s lunches (allegation of race discrimination harassment and direct race discrimination)[186]In the Tribunal’s findings of fact above the Tribunal found that Ms McWee did not criticise the Claimant for having curries or going to Nandos, although she occasionally made a light-hearted comment about going to Nandos so often. We found that Ms McWee was unaware of Nandos South African origins. The remarks were not related to, or because of her racial origins. This complaint fails. Allegation A(iii) – referring to the Claimant as ‘princess’ (allegation of race discrimination harassment and direct race discrimination)[187]The Tribunal’s findings of fact above were, in summary, that the Claimant was referred to as “princess” by Mr Lutterloch and some other colleagues; and that Ms Farmer made a comment to a client of the Respondent, in the Claimant’s presence, at a Christmas party in December 2014 that she was referred to as “princess” in the office.[188]The Claimant did not object to Mr Lutterloch calling the Claimant princess. His comments were not unwanted comments.[189]The Tribunal is not convinced that references made by others in the office to the Claimant as princess were unwanted on her part. Even if they were the Tribunal does not consider it reasonable for it to have had the necessary effect of creating an adverse environment for her. As the Claimant was content for Mr Lutterloch to refer to her as princess and did not make colleagues aware that she was unhappy with them giving her such a nickname, we do not consider it reasonable for it to have had an adverse effect. Nor could such remarks, in this context, reasonably be perceived as a detriment, as required in a direct race discrimination claim.[190]So far as Ms Farmer’s comment to a client of the Respondent is concerned, this is of a different nature.[191]The comment in front of a client was unwanted conduct. It was a private nickname given to her by a colleague and used occasionally at work amongst work colleagues.[192]Was it related to the Claimant’s race? We consider that it was. It came from a perception that the Claimant came from a privileged South African background.[193]We do not consider that Ms Farmer’s comment had the purpose of violating the Claimant’s dignity or creating an adverse environment. It was thoughtless on her part. We do consider, however, that it had that effect. It felt disrespectful to her and that her manager was taking part in teasing her. It was unprofessional on the part of Ms Farmer.[194]Likewise, putting a sticker on the Claimant’s computer of “princess” was disrespectful and another form of teasing. It was making a general statement for anyone walking around the office to see.[195]To this extent, therefore, the Claimant’s allegations succeed (the reference by Ms Farmer to a client at a work party and the sticker that was placed on the Claimant’s computer). Allegation A (iv)- suggesting that the Claimant had a fake designer handbag[196]The conduct in question was unwanted.[197]The Tribunal concludes that the remarks were not related to the Claimant’s race. The context was of the women concerned discussing their holiday purchases and comparing handbags they had bought. There may have been an element of jealousy involved, but we do not consider that it was related to the Claimant’s race. The race discrimination complaint for this allegation fails. Allegation A (v) – lack of support with organising MacMillan fundraising event (race discrimination harassment and direct race discrimination claim)[198]This complaint fails because of the findings of fact we have made. Although the Claimant had a perception of being unsupported, this was not found to have been the case in the Tribunal’s findings of fact. The event was a success and colleagues of the Claimant, such as Ms Faulkner and Ms McWee baked cakes for the event; and Ms Farmer wanted it to be a success and was pleased that it had been.[199]As regards the race discrimination harassment complaint, therefore, the Claimant did not have a reasonable perception of being subject to an intimidating etc environment.[200]As regards direct race discrimination, the Tribunal does not consider that the Claimant suffered a detriment. The event was a success and colleagues such as Ms Faulkner and Ms McWee helped make the event a success.[201]This complaint, therefore, fails. Allegation A (vi) - Reading the Claimant’s phone messages without the Claimant’s consent (race discrimination harassment and direct race discrimination claims) Allegation A (vii) Comment made to Adam Brinn about lunching with the Claimant (race discrimination harassment and direct race discrimination claims)[202]These complaints also fail because of the findings of fact made by the Tribunal.[203]Although the conduct was unwanted, it was unrelated to the Claimant’s race. The individuals concerned disapproved of the behaviour both of the Claimant and of Mr Brinn. Mr Brinn was white. The Claimant’s race was not any part of the reason why these actions were done, but because there was some disapproval from colleagues of both the individuals about them because (in the opinion of those concerned) they were having a relationship that might be going beyond a professional relationship when both were either married or living with a partner. Allegation A(viii) – criticism about Claimant’s phone usage (allegation of race discrimination harassment and direct race discrimination)[204]These allegations also fail because of the findings of fact we have made. We found that it was likely that other individuals would be asked to switch off their telephones or make them less noisy; and that the Claimant was not singled out in this respect. Issues at section B of the list of issues – treatment from Joanne Farmer and Jason Falkingham as line managers- allegations of racial harassment and direct race discrimination Allegation B (i) – Joanne Farmer observing team members ganging up on the Claimant but taking no action to ensure that other team members treated her with respect (race discrimination harassment and direct race discrimination claims)[205]Amongst the Tribunal’s findings of fact on this issue were the following:-205.1 Ms Farmer was aware that some people working with the Claimant were very hostile to her (as recorded in her interview with Mr Aldred).205.2 This assessment of Ms Farmer’s was consistent with comments made in responses to the questionnaires sent by Mr MacDonald to members of the Chelmsford team who made a number of references to the Claimant and also referred to matters such as personality clashes.205.3 Ms Farmer did intervene when she observed Ms Balster behaving towards the Claimant in an overly aggressive manner.205.4 Nonetheless, as Ms Farmer’s interview with Mr Aldred, when she described some people as being very hostile to the Claimant was around June 2016, she had not succeeded in preventing such hostility.205.5 Although Ms Farmer probably did not witness the incidents referred to in section A of the list of issues, she was aware of how the team perceived the Claimant.205.6 Ms Farmer herself contributed to the Claimant’s difficulties at the workplace. She had an assumption about the Claimant being too direct because she was South African. She, tactlessly, told a client, in front of the Claimant, about her office nickname of “princess”.[206]Ms Farmer, therefore, was aware of hostility towards the Claimant from members of the team she managed and failed to take action, or effective action, to prevent this. Why was this?[207]The Tribunal has concluded that a factor in Ms Farmer’s failure to take effective action was related to the Claimant’s race, not an intention to racially discriminate but more an issue of the Claimant being different and not fitting in to the prevailing culture within the office. Having hostility from colleagues towards her created the hostile effect referred to in section 26(b)(ii) of the EqA.[208]Whether, therefore, we consider our conclusions on the basis of the reversal of the burden of proof and Ms Farmer failing to convince the Tribunal that the treatment was in no sense whatsoever on the ground of race; or on the question of why the treatment occurred, the complaint succeeds.[209]This complaint of the Claimant, therefore, succeeds. Issue B(ii) – being told that she is “South African, a direct person and needed to change her approach” by Joanne Farmer most of her one-to-ones from April 2013 to August 2015 (claims of race discrimination harassment and direct race discrimination)[210]As recorded in the Tribunal’s findings of fact Ms Farmer did this.[211]The behaviour was clearly unwanted and led to the Claimant taking out a grievance on the issue.[212]Referring to the Claimant as South African, a direct person and needed to change her approach was an assumption on Ms Farmer’s part, perhaps a stereotypical assumption. Ms Farmer had no South African friends and was unable to give any satisfactory explanation for why she thought that the Claimant’s manner might be direct because she was South African.[213]Ms Farmer’s reference to the Claimant being South African and direct was also part of her explanation for putting the Claimant initially on a performance improvement plan then modified to an action plan.[214]The Tribunal does not consider that Ms Farmer’s remarks were done with the purpose of either violating the Claimant’s dignity or creating an adverse environment for her. We consider, however, that it had that effect. It upset the Claimant and led to her taking out a grievance against Ms Farmer. It was also reasonable for it to have had that effect. It was how, in part, Ms Farmer explained putting the Claimant on to a performance improvement plan, then action plan. The Claimant, with justification, felt that her being South African should not be perceived as a problem by her manager.[215]This complaint of the Claimant succeeds as a race discrimination harassment complaint.[216]Although we have not analysed the complaint as a direct race discrimination complaint we would have upheld the complaint as a direct race discrimination complaint for similar reasons as those set out above. Issue B(iii) – being told by Joanne Farmer on 16 July 2015 she would be placed on a performance improvement plan due to her allegedly direct approach as a result of her nationality, and refusing subsequently to provide her with a sufficient explanation or with supporting evidence to justify such a step (claims of race discrimination harassment and direct race discrimination) Issue B(iv) – being placed on an “action plan” on 5 August 2015 by Joanne Farmer and Jason Falkingham due to her allegedly direct approach as a result of her nationality[217]Amongst the Tribunal findings of fact on these issues were the following:-217.1 Part of the justification for the performance improvement plan, subsequently action plan, was because of criticisms from Mr Coppen, who was not called by the Respondent as a witness, although he could have been.217.2 Neither Ms Farmer nor Mr Faulkingham were able to give a satisfactory explanation for their criticisms of the Claimant’s work when cross-examined on the issues.217.3 Neither did they respond to the Claimant’s challenges made at the time to these criticisms.217.4 Contrary to Ms Farmer’s evidence she did, when telling the Claimant that she would be putting her on a performance improvement plan, explain that she needed to change her South African direct approach when dealing with customers.[218]The Tribunal has considered this complaint as a race discrimination harassment complaint.[219]The treatment concerned was clearly unwanted and the Claimant complained about it.[220]The conduct was related to the Claimant’s race in that it was part of the justification for putting her onto the plans that her approach was South African and direct.[221]As with the issue B(ii) above, we consider that the behaviours from Ms Farmer and Mr Faulkingham were not done with the purpose of violating the Claimant’s dignity or having the adverse environment referred to in section 26 EqA; they did, however, have that effect. They formed part of the Claimant’s complaints and grievances considered by Mr McDonald and Mr Aldred.[222]Was it reasonable to have that effect? In the context of what occurred the Tribunal has concluded that it was reasonable for it to have had that effect.[223]Part of Mr Dobson’s closing submissions were to dispute that telling the Claimant that she should be put on a performance improvement plan could not be a detriment as the plan was never implemented. We do not agree- the Tribunal considers that it was adverse treatment as referred to in section 26(1)(b) EqA and was detrimental treatment. Being informed that she was being placed on a performance improvement plan was the first step, albeit informal, in capability disciplinary action. It was worrying and upsetting for the Claimant and she felt that it was unjustified. Being placed on an action plan was less obviously a detriment; however, it was action being taken to address her managers view that she was under-performing in her job; and the explanation, in part, was on the basis that she was South African and direct. Nor did the Respondent demonstrate in their evidence that the Claimant was in fact under-performing. Issue B(v) – being told by Jason Falkingham at informal meetings on 27 August 2015 and 1 September 2015 that he agreed with Joanne Farmer’s criticisms and she should change her approach and adopt a “Chameleon style” given her allegedly direct approach as a result of her nationality (claims of race discrimination harassment, direct race discrimination and race discrimination victimisation) Issue B(vi) – Jason Falkingham ignored the Claimant’s complaint made in September 2015 about Elise Balster accessing her phone to read her personal messages (claims of race discrimination harassment, direct race discrimination and race discrimination victimisation) Issue C(i) – Jason Falkingham failed to address the Claimant’s complaint about Joanne Farmer’s discriminatory remarks adequately at the informal meetings on 27 August 2015 and 1 September 2015 (allegation of race discrimination harassment, direct race discrimination and race discrimination victimisation)[224]The Tribunal’s findings of fact show that Mr Falkingham’s approach to the Claimant’s complaints was to support and justify Ms Farmer’s criticisms of the Claimant; not to deal with or adjudicate on the Claimant’s complaints that she had been racially discriminated; nor to act on the Claimant’s complaint that Ms Balster accessed her private telephone to read her personal messages.[225]So far as Mr Falkingham referring to the Claimant needing to adopt a “Chameleon style”, the Tribunal did not find Mr Faulkingham to be aware that this had any specifically South African connotations. To that extent the Claimant’s complaint is unsuccessful.[226]Nonetheless, Mr Falkingham agreed with Ms Farmer’s view of the Claimant having a direct approach perhaps because of being South African. As referred to in the Tribunal’s findings of fact, he telephoned Mr Jooste, as another South African who had previously worked with the Claimant in another office, to enquire about South Africans; and used what Mr Jooste told him as part of his explanation for his treatment of the Claimant when he was interviewed by Mr Aldred.[227]The Tribunal has concluded that all three complaints succeed as race discrimination harassment complaints including because:-227.1 The treatment, in all three respects, was unwanted.227.2 Mr Falkingham agreed with Ms Farmer’s assessment of the Claimant being South African and direct.227.3 Because Mr Falkingham agreed with Ms Farmer’s view he did not address her complaints of race discrimination against her by Ms Farmer.227.4 We accept Mr Dobson’s submission about the Claimant’s complaint against Ms Balster not forming a major part of her complaints. We do not, accept, that Mr Falkingham’s failure to address it was purely an oversight. We consider, having listened to his evidence as a whole, that it was part of Mr Faulkingham seeking to support Ms Farmer and having also an unfavourable opinion of the Claimant, as shown by remarks he made as to the Claimant’s “honeymoon” being over. We consider that, probably unconsciously, his opinion of the Claimant was motivated in part by his perception of her South African characteristics.227.5 As referred to in the Tribunal’s findings of fact, Mr Falkingham, despite the Respondent having good policies, was not complying with them and, instead seeking to support a view of Ms Farmer’s that the Claimant’s communication style was South African and direct.227.6 The Claimant was upset about the treatment and complained about it to more senior management. The treatment concerned was motivated by an unwillingness to consider the possibility that the Claimant was being racially discriminated against and led to the Claimant feeling, understandably and appropriately, that her complaints were not being treated seriously.[228]These allegations succeed. Mr Faulkingham was dismissive of the Claimant’s complaints.[229]As the complaints succeed as race discrimination harassment complaints, it is unnecessary to consider whether they succeed as direct race discrimination and race discrimination victimisation complaints. Issue B(vii) – Joanne Farmer attempted from 4 January 2016 onwards to overburden the Claimant’s already excessive workload, by allocating her additional work on the secondment of a colleague, despite other colleagues having a lesser workload Issue B(viii) – Joanne Farmer refused her request made on 7 April 2016 for a half day’s holiday, and instead insisted that she take a full day’s holiday Issue B(xi) – Joanne Farmer on 8 April 2016 refused her request to leave work at 3pm in circumstances where she had been working until 8:30pm the previous evening. (all the above are claims of race discrimination harassment and direct race discrimination)[230]The Tribunal’s findings of fact include that:-230.1 The incident involving Ms Balster having her work allocated to the Claimant was handled poorly, as Ms Farmer herself accepted when cross-examined; and Ms Balster also felt that it had been badly handled when replying to the survey conducted by Mr McDonald.230.2 The issues concerning the Claimant’s holiday request were not handled particularly well either.230.3 As regards Ms Balster’s secondment and the Claimant being allocated her work, Ms Farmer dealt with the issue swiftly, by clarifying to the Claimant that the reallocation of work was for three weeks only. In fact, following the Claimant’s complaint about the issue Ms Balster’s work was reallocated to other team members.[231]The Tribunal accepts, whether the burden of proof passes to the Respondent or not on these issues, that they were not related to or because of the Claimant’s race because:-231.1 So far as Ms Balster is concerned, Ms Farmer’s quick steps to rectify the issue are indicative of a manager recognising readily that she had been at fault in how she handled the matter, rather than any deliberate attempt to treat the Claimant unfavourably.231.2 Team members were expected to cover their colleagues on short-term absences. Although Ms Farmer did not initially make clear to the Claimant that her cover was intended to be for a period of a few weeks only, not the full six months secondment, this was her intention. The Claimant was being treated no differently to any other team member.231.3 Although Ms Farmer’s email complaining about the Claimant’s frequent emails to her was abrupt, we do not consider this to be because of the Claimant’s race, as her considered response was helpful in resolving the problem.[232]The Tribunal accepts Ms Farmer’s explanation that her dealing with the Claimant’s half day holiday request was a misunderstanding of the Respondent’s procedures, rather than unfavourable treatment related to or because of the Claimant’s racial origins.[233]These complaints, therefore, fail. Issue C(ii) – Gary McDonald failed to address the Claimant’s complaint against Joanne Farmer adequately at the investigation meeting with the Claimant on 12 January 2016 and in the outcome meeting on 18 February 2016 (allegations of race discrimination harassment, direct race discrimination and race discrimination victimisation)[234]Amongst the Tribunal’s findings of fact on this issue were that Mr McDonald, contrary to his evidence, did understand the Claimant to be making a complaint of race discrimination; made a decision not to explore these complaints, contrary to guidance given in the Respondent’s policies; and failed to carry out a proper investigation of the Claimant’s complaints of race discrimination.[235]The Tribunal has concluded that this allegation succeeds as a complaint of race discrimination harassment including because:-235.1 Mr McDonald’s failure to investigate the Claimant’s complaints of race discrimination was unwanted and the Claimant appealed against his grievance outcome.235.2 His failures were related to the Claimant’s race. Part of her complaints involved complaints about unfavourable treatment due to her South African origins.235.3 It had the effect, although we do not consider the purpose, of creating an adverse environment for the Claimant. She felt that justified complaints on her part were not being considered.235.4 It was reasonable for the Claimant to consider the conduct to be having that adverse effect. The Respondent has good equal opportunities policies. The Claimant was entitled to believe that her complaint would be properly and fairly investigated. The Claimant had been able to work in various offices of the Respondent without the kinds of difficulties she experienced at the Chelmsford office; and entitled to expect the kinds of difficulties she was complaining about would be considered rigorously.[236]This complaint therefore succeeds. Conclusions- Time limits issues[237]Whether or not the complaints set out above succeed depends on whether the Tribunal has jurisdiction to consider them. These, in turn, depend on whether the complaints amount to an act extending over a period and if so until when; whether all or some of the complaints are out of time; and whether, if out of time, time limits should be extended.[238]The issues set out in section A of the finalised list of issues involve the treatment received by the Claimant from the Essex team colleagues of hers, except that Ms Farmer also referred to the Claimant as “princess” to a client of the Respondent at the social event organised by the Respondent.[239]The last of the complaints under section A of the list of issues that the Tribunal has upheld is the one involving Mr Coppen which occurred around January 2015. The Tribunal accepts that the teasing experience by the Claimant from the team she worked in was something that occurred at times up to this incident and probably beyond. The last of the allegations is, however, around January 2015 and do not consider them to have been an act extending over a period beyond January 2015.[240]The Claimant carried out her early conciliation notification on 5 April 2016 and was issued with an Early Conciliation Certificate on 5 May 2016. She issued her Employment Tribunal claim within a month of the issue of her certificate, namely o 1 June 2016.[241]The parties’ representative’s submissions were that the cut off date under the early conciliation rules had the effect of extending time limits to acts of alleged discrimination occurring from 1 February 2016 onwards.[242]The Tribunal’s view is that time limits were extended through the early conciliation procedures to 6 January 2016, three months before the early conciliation notification. In practice, it makes little difference whichever of the two it is as the only event that appears to straddle these two dates was the investigation meeting between the Claimant and Mr McDonald on 12 January 2016.[243]Does the Tribunal consider it just and equitable to extend time limits for the claims the Tribunal has upheld in section A of the list of issues? The Tribunal finds and concludes that it would not be just and equitable to do so including because:-243.1 Out starting position is that statutory time limits are meant to be obeyed.243.2 The delay is a lengthy one, with the last of the allegations being about one year before the time limit.243.3 The evidence is affected by the delay because the Tribunal is dealing with words used and there was no contemporaneous documentation concerning them because the Claimant did not complain about most of these issues at or near the time concerned.243.4 The Claimant did not complain about most of them in the complaints she made to Mr Falkingham, Mr McDonald or Mr Aldred.243.5 The Tribunal considers that there is prejudice to one part or the other depending on which decision we make. If refusing to extend time the Claimant loses what would otherwise be successful claims. Nonetheless, she derives some benefit from our decisions as they demonstrate discriminatory attitudes on the Respondent’s part. She has also succeeded on other aspects of her claim which are either in time or time limits are extended by the Tribunal (as we explore below).243.6 So far as the Respondent is concerned we accept that they have some prejudice in the evidence they have been able to provide having less cogency because of the delay in the Respondent first becoming aware of the issues and they have been less well able to defend these claims.[244]The Tribunal has, next, considered the issue set out in section B, namely the treatment towards the Claimant from Joanne Farmer and Jason Falkingham.[245]Complaints B(i)-(vi) have succeeded, whereas (vii) to (xi) have failed. The successful complaints concern treatment from the two managers concerned from about April 2013 to about September 2015. They amount to acts extending over a period at least until the time that Mr Falkingham ought reasonably to have dealt with the concerns and complaints raised by the Claimant at her meetings with him on 27 August and 1 September 2015.[246]Arguably, the complaints amount to an act extending over a period beyond this date. Ms Farmer did not apologise to the Claimant over her comments about her being South African and direct and using this as part of her justification for telling the Claimant that she would be put on a performance improvement plan and subsequently putting her on an action plan. Mr Falkingham never addressed the Claimant’s complaints. Ms Farmer and Mr Falkingham’s comments to Mr Aldred were indicative of a discriminatory attitude towards the Claimant. They were responsible for an ongoing state of affairs, the wording referred to in the Hendricks case.[247]If the complaints are out of time the Tribunal extends time limits:-247.1 As referred to above our starting point is that statutory time limits are meant to be obeyed.247.2 If out of time, they are a few months out of time and less out of time than the matters referred to under the list of issues in section A.247.3 The Claimant’s reasons for not bringing her claim earlier included having been a loyal Barclays employee for many years, wanting to make a success of her role, wanting to get on well with her colleagues and Ms Farmer and not to be labelled a trouble-maker. These are all valid reasons for not wishing to bring proceedings. Bringing complaints against one’s colleagues and managers is stressful and it is readily understandable that the Claimant would be hesitant in doing so.247.4 The Respondent was at fault in the delays in the sense that some of the complaints the Claimant was making to Mr Falkingham and Mr McDonald (and subsequently Mr Aldred) under the Respondent’s procedures for complaints and grievances were not acted upon. The Claimant’s complaints about race discrimination were ignored. Her complaint about Ms Balster was ignored.247.5 The Claimant attempted to deal with these complaints internally. This is a strong point in the Claimant’s favour. Successive governments have wanted Employment Tribunal procedures to come only after the parties have attempted to resolve disputes without litigation.247.6 So far as prejudice is concerned the prejudice to the Claimant if we refuse to extend time limits outweighs that to the Respondent if we extend time limits.247.7 If refusing to extend time limits the Claimant would lose what would otherwise be successful claims.247.8 On the Respondent’s part the issues concerned are well documented, the Respondent’s witnesses were able to give evidence and we do not consider that the cogency of evidence was greatly affected.247.9 If the Respondent’s defence to these claims of race discrimination is wellfounded (as to some extent we found them to have been) they would ultimately succeed in resisting the complaints.[248]The Tribunal has next considered the issues in section C of the list of issues.[249]The first of these issues involves Mr Falkingham’s failure to address the Claimant’s complaint about Joanne Farmer’s discriminatory remarks adequately at the informal meetings on 27 August and 1 September 2015.[250]For similar reasons as those given for extending time limits under section B of the list of issues we extend the time limits on this complaint. The second issue involves Mr McDonald.[251]The Tribunal considers this issue to be an act extending over a period until Mr McDonald notified the Claimant of the outcome of her grievance at the outcome meeting on 18 February 2016. This complaint is in time. Remedy hearing[252]As the Claimant has succeeded in part in her case a remedy hearing will be required unless the parties are able to settle remedy themselves.[253]The parties’ representatives indicated that remedy issues might be complex and that a Preliminary Hearing would be helpful if the Claimant were to be successful in her case.[254]The case is listed, therefore, for a Preliminary Hearing (closed) for two hours on Friday 8 September 2017 in order to consider the remedy issues and make, if required, Case Management Orders. If the parties consider that a Preliminary Hearing is not required, they may contact the Tribunal with an application to vacate the date, giving details of the case management preparations they have made; and the length of time needed for the remedy hearing (including time for the Tribunal to deliberate and deliver judgment). The parties may also wish to consider, as the Claimant has issued a new claim, whether the cases would be suitable for an application to be made for judicial mediation. If so it would be helpful if a joint application were to be made to the Tribunal; and, if not, the parties representatives have made sure that they have taken their client’s instructions on judicial mediation before the Preliminary Hearing that has been listed to consider remedy. REMEDY JUDGMENT The judgment and orders of the Tribunal is that:-[1]The Respondent to pay the Claimant’s costs to be assessed on a standard basis to be taxed if not agreed.[2]By way of remedy the Respondent is ordered to pay the sums further set out below.[1]The background to this remedy hearing is as follows.[2]The Claimant, Ms Annamallay, brought proceedings in the Employment Tribunal against her employer, Barclays Bank PLC. She brought claims for sex and race discrimination.[3]The Tribunal conducted a liability hearing in April and May 2017. The judgment of the Tribunal was that:3.1 The complaint of sex discrimination was not presented in time and it is not just and equitable to extend time and is dismissed.3.2 The complaint of race discrimination succeeds, to the extent further set out below.[4]Additionally, the Tribunal conducted a reconsideration hearing in February 2018, reconsidering some aspects of its judgment; and varying or revoking the previous judgment to the extent set out in the reconsideration hearing judgment.[5]The Claimant has also issued new proceedings against the Respondent, which are listed for hearing in October 2018.[6]Judicial mediation took place earlier this year. It was unsuccessful. There was also some delay in the listing of this remedy hearing because of expert medical evidence the parties needed to obtain. Preliminary Hearings have been conducted both concerning the remedy hearing for these proceedings; and case management for the subsequent proceedings listed for hearing in October 2018.[7]The Claimant prepared a schedule of loss for this remedy hearing with a number of components, the total sum being claimed amounting to £483,545.46.[8]The Respondent prepared a counter schedule of loss amounting to £104,736.12.[9]Both parties were well represented. Both provided helpful skeleton arguments for the remedy hearing. A key area of dispute between the parties was as to causation for the Claimant’s psychiatric and gynaecological conditions. Expert witnesses were required for both these aspects of her claim.[10]The issues to determined at this remedy hearing were summarised by Ms Genn, counsel for the Respondent, in her skeleton argument for the Tribunal, as being as follows:10.1 Whether, and to what extent the psychiatric condition identified by the experts has been caused or contributed to by the unlawful conduct found by the Employment Tribunal?10.2 Whether and to what extent the psychiatric condition identified by the experts has been caused or contributed to by the pre-existing and ongoing/recurrence of the Claimant’s endometriosis?10.3 Whether the Claimant has been caused chronic pelvic pain as a result of the conduct found by the Employment Tribunal?10.4 Whether the Claimant’s chronic pelvic pain is a consequence of her preexisting and ongoing/recurring endometriosis?10.5 What should she recover by way of damages for injury to feelings?10.6 What should she recover in respect of general damages for personal injury?10.7 What if any apportionment should there be?10.8 To what extent has the Claimant mitigated her loss?[11]The order of witnesses was tailored to the availability of the Claimant’s gynaecological expert witness, Mr Morris. He was only available on the first day of the hearing. He was followed by Mr Barton-Smith, the Respondent’s gynaecological expert witness, before the Claimant gave evidence.[12]On the second morning of the hearing, Ms Genn made an application for Mr Barton-Smith to produce handwritten notes of his interview with the Claimant (no such notes having previously been disclosed, although handwritten notes of Mr Morris were in the bundle of documents and on which he gave oral evidence).[13]Ms Genn’s application was opposed by Mr Gardiner. His submissions included that he had only received notification of such an application being made this morning, he had not yet read the document and his client would be prejudiced by the document being introduced after Mr Morris had given his evidence, been released and was unavailable.[14]Ms Genn disputed that the Claimant would be prejudiced, although she accepted that perhaps the application should have been made earlier. Mr Gardiner was used to dealing with rough notes.[15]The Tribunal considered whether the document was relevant; whether it was necessary for the fair trial of the case for it to be disclosed; and the Tribunal’s overriding objective.[16]The Tribunal refused the application including because:16.1 As the Tribunal had not seen the document in question it was difficult to be clear whether it was relevant or not. It appeared to the Tribunal that it might be relevant, if shedding further light on Mr Barton-Smith medical reports.16.2 The Tribunal was not convinced that the handwritten notes were necessary for a fair trail of the case. The Tribunal already had Mr BartonSmith’s reports and he was about to give evidence and be questioned on those reports.16.3 There appeared no good reason why the handwritten notes could not have been disclosed at an earlier stage if the Respondent wished to introduce them. Mr Morris’s notes formed part of the documents and the time for the Respondent to produce Mr Barton-Smith’s notes was before the end of Mr Morris’s evidence and before he became unavailable.16.4 The Tribunal accepted Mr Gardiner’s submissions about the balance of prejudice.[17]In the course of her typed closing submissions Mr Genn stated: “Given the Claimant’s responses during cross examination the tribunal has left itself without the means to weigh her reliability. It should therefore review its decision on the admissibility of Mr Barton-Smith’s manuscript notes and admit them.” The judge informed the parties of the decision in the case of Serco v Wells UKEAT/2016/0330/15. Mr Gardiner objected to Ms Genn’s application. He submitted that there was no new feature of the case; that he had not had the opportunity to question Mr Barton-Smith; and that reconsideration would delay things.[18]In the case of Serco v Wells it was held that the expression “in the interests of justice” in Rule 29 of the Employment Tribunal Rules of Procedure should be so interpreted; and variation or revocation of an order or decision will be necessary in the interests of justice where there has been a material change of circumstances since the order was made or where the order has been based on either a misstatement and there may be occasions, in which is unwise to attempt to define but these will be rare and out of the ordinary.[19]The Tribunal rejects Ms Genn’s application made on behalf of the Respondent. There was no material change of circumstances since the Tribunal’s decision. In any case, in view of the Tribunal’s findings of fact as to the part of Mr Barton-Smith’s evidence in question, the Respondent’s application is unnecessary- the Tribunal accepted his evidence on the point without recourse to whatever handwritten notes he made at the time.[20]Mr Gardiner informed the Tribunal that the Respondent had not provided all the necessary documents to deal with her bonus claim. The Claimant’s schedule of loss also included a claim for salary increases. Helpfully, the parties’ representatives reached the following agreement between themselves, as follows.[21]By agreement with the parties the issues of the bonus the Claimant says she should have received, or would receive, for the period from 2014 – 2019; and the salary increases the Claimant says that she should have received, or would receive, from 2014 – 2019 is deferred to be resolved as part of the Claimant’s proceedings for case number 3200541/2017.[22]Part of the Claimant’s closing submissions were submissions as to costs. In the course of her closing submissions, Ms Genn informed the Tribunal that the parties had agreed an order in the following terms: “The Respondent to pay the Claimant’s costs to be assessed on a standard basis to be taxed if not agreed.”[23]For all sums claimed that were agreed between the parties, the Tribunal adopts their agreement. The issues the Tribunal has needed to decide, after removing the issues on which the parties either were agreed, or which they agreed to defer, are as described in the schedule and counter schedule of loss; and the skeleton argument presented by the representatives at the outset of this hearing; and are as follows:23.1 Injury to feelings was claimed at near the top of the band of the updated Vento guidelines, at £40,000. The counter-schedule figure was near the top of the middle band, £25,000 being conceded.23.2 Psychiatric damage was claimed as being in the moderately severe band of the Judicial College guidelines of between £16,720-£48,080. £15,000 was conceded in the counter-schedule.23.3 Exacerbation of chronic physical pain was claimed under the heading of moderate other pain disorders, at the rate of £18,480-£33,750. No sum was accepted in the counter-schedule.23.4 The Claimant’s case was that there should be no apportionment of her award. The Respondent’s case was that the Respondent’s wrongdoing and psychiatric consequences attributable to that constituted no more than 20%; and that the Claimant’s endometriosis and her “ovarian accident” in June 2016 were the dominant cause.23.5 The Claimant claimed £5,000 for aggravated damages; the Respondent’s case was that no separate award should be made.23.6 Additional travel costs were claimed at £4005.04; £1627.50 was conceded (subject to their case that only 20% should be awarded because of apportionment).23.7 Loss of earnings for most of the period between 3 June 2016 and 28 June 2018 (the exact dates being specified) was claimed at the sum of £15,743.63. £11,094.98 was conceded, the difference between them being that the Claimant had received 50 days holiday pay amounting to £4,648.65.23.8 Interest was claimed on the award for injury to feelings and PSLA at the rate of 8% from the mid point between April 2013 to June 2016 (November 2014) to the date of this hearing. The Respondent accepted the figure of 8%, although the period claimed was not agreed- the Respondent did not, however, give an alternative proposal as to what period they proposed.23.9 A claim was made for future medical treatment. This comprised £5,000.00- £6,000.00 ovary stimulation; endometriosis operation £9,5000.00- £30,000.00; £2,400.00-£3,600.00; £960.00-£2,160.00 CBT; pain management and psychosexual therapy £3,000.00 and £6,400.00- £8,000.00. These were mainly disputed by the Respondent.23.10 The Claimant claimed future loss of earnings for 15 months. The Respondent accepted future loss of earnings for 12 months.23.11 Handicap on the labour market was claimed for three years at £22,399 amounting to £67,197.00, pursuant to the Smith v Manchester case. The Respondent disputed that any such award should be made.23.12 An uplift of award was claimed pursuant to section 207A TULCRA, for unreasonable failure to comply with the ACAS Code of Practice on Grievance Procedures. In the Respondent’s counter-schedule 15% was conceded. In the closing submissions the Respondent’s primary case was that no uplift should be made and fallback position that no more than 15% should be awarded. The Relevant Law[24]Section 124(2)(b) Equality Act 2010 (“EqA”) provides that a Tribunal may order the Respondent to pay compensation to the Claimant.[25]Section 124(6) EqA provides that the amount of compensation which may be awarded under subsection 2(b) corresponds to the amount which could be awarded by the County Court or the Sherriff under section 119.[26]The general principle in assessing compensation is that, as far as possible, complainants should be placed in the same position as they would have been in but for the unlawful act. The burden of proof is on the Claimant to establish the cause or connection between any loss that he/she relies on and the Respondent’s wrongdoing; and the compensation to be awarded overall must be just and appropriate, paying attention to the size of the overall award. Injury to Feelings[27]Guidance was given in the case of Vento v Chief Constable of West Yorkshire Police (2) [2003] IRLR 102 CA as to the three bands of compensation to be awarded for injury to feelings.[28]The top band should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race. The middle band should be for less serious cases, which do not merit an award in the highest band.[29]Awards of the lowest band are appropriate for less serious cases, such as where the act of discrimination is an isolated or one off occurrence.[30]The levels of compensation to be awarded for injury to feelings have been adjusted from time to time with inflation.[31]The parties agreed that the applicable figures were those set out in the presidential guidance issued on 7 September 2017, where the Vento bands were revised as being:31.1 The lower band should be £800 - £8,400.31.2 The middle band should be from £8,400 - £25,200.31.3 The upper band should be between the figures of £25,200 - £42,000. Aggravated Damages[32]Aggravated damages are compensatory, not to be awarded in order to punish the Respondent for their conduct. They are an aspect of injury to feelings. Whether a Tribunal makes a single award for injury to feelings, reflecting any aggravating features, or splits out aggravated damages as a separate head should be a matter of form rather than substance.[33]Guidance has been given in a number of cases, including Commissioner of Police of the Metropolis v Shaw [2012] IRLR 291 EAT that the circumstances attracting an award of aggravated damages fall into three categories namely:33.1 The manner in which the wrong was committed. The phrase “high handed, malicious, insulting or oppressive” gives a good general idea of a kind of behaviour which may justify an award, but should not be treated as an exhaustive definition.33.2 By motive. Discriminatory conduct which is evidently based on prejudice or animosity for which is spiteful or vindictiveness or intended to wound is, as a matter of common sense and common experience, likely to cause more distress than the same acts would cause if evidently done without such a motive – say, as a result of ignorance or insensitivity.33.3 By subsequent conduct. For example, where a case is conducted at trial in an unnecessarily offensive manner, or a serious complaint is not taken seriously, or there has been a failure to apologise. Psychiatric Injury[34]In the case of Sheriff v Klyne Tugs (Lowestoft) LCD [1999] IRLR 481 CA it was held that an Employment Tribunal has jurisdiction to award compensation by way of damages for personal injury, including both physical and psychiatric injury, caused by the statutory tort of unlawful discrimination.[35]The Judicial College publishes guidelines on quantum to be awarded. The parties agreed that the 14th addition of these guidelines were the ones to which the Tribunal should refer.[36]The factors cited in the guidelines as factors to be taken into account when valuing claims of psychiatric damage included:36.1 The injured persons ability to cope with life, education and work;36.2 The effect on the injured persons relationships with family, friends and those with whom he/she comes into contact;36.3 The extent to which treatment would be successful;36.4 Future vulnerability;36.5 Prognosis;36.6 Whether medical help has been sought;36.7 (The next subparagraph relates to sexual and physical abuse which is not relevant in this case).[37]The guidelines classified as moderately severe cases with significant problems associated with the first four factors above but the prognosis will be more optimistic than for severe psychiatric damage (where the prognosis will be very poor). While there are awards which support both extremes of this bracket, the majority are somewhere near the middle of the bracket. Cases of work related stress resulting in a permanent or long standing disability preventing a return to comparable employment would appear to come within this category.[38]The guidelines referred to moderate psychiatric damage as being while there may have been the sort of problems associated with the first four factors above there will have been marked improvement by trial and the prognosis will be good. Chronic Pain[39]As regards chronic pain Chapter 8 of the Judicial College Guidelines set out the factors to be taken into account in valuing the claims for pain disorders namely:39.1 The degree of pain experienced;39.2 The overall impact of the symptoms (which may include fatigue, associated impairments of cognitive function, muscle weakness, headaches etc and taking account of any fluctuation in symptoms) on mobility, ability to function in daily life and the need for care/assistance;39.3 The effect of the condition on the injured person’s ability to work;39.4 The need to take medication to control symptoms of pain and the effect of such medication on the person’s ability to function in normal daily life;39.5 The extent to which treatment has been undertaken and its effect (or its predicted effect in respect of future treatment);39.6 Whether the condition is limited to one anatomical site or is widespread;39.7 The presence of any separately identifiable psychiatric disorder and its impact on the perception of pain;39.8 The age of the Claimant;39.9 Prognosis.[40]Moderate pain (the category the Claimant was asserting) is described as having at the top end of the bracket cases where symptoms are ongoing, albeit of a lesser degree then severe and the impact on ability to work/function in daily life is less marked. At the bottom end are cases where full, or near complete recovery has been made (or is anticipated) after symptoms have persisted for a number of years. Cases involving significant symptoms but where the Claimant was vulnerable to the development of a pain disorder within a few years (or ‘acceleration’ cases) will also fall in this bracket. Interest on Discrimination Awards[41]The Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 make provision for interest on such awards.[42]Interest on awards for injury to feelings and for pain suffering and loss of amenity runs from the mid point of the period over which the discrimination has occurred. Interest at the relevant times runs at 8% per annum. Apportionment[43]Guidance on the issue of apportionment of awards was given in the case of BAE Systems (Operations) Ltd v Konczak [2017] IRLR 893 CA.[44]In the Konczak case it was held that the Tribunal should try to identify a rational basis on which the harm suffered can be apportioned between a part caused by the employer is wrong and a part which is not so caused. The exercise concerned not with the divisibility of the causative contribution but with the divisibility of the harm. The question is whether the Tribunal can identify, however broadly, a particular part of the suffering which is due to the wrong; not whether it can assess the degree to which the wrong caused the harm.[45]That distinction is easier to apply in the case of a physical injury. It is less easy in the case of a psychiatric injury, but such harm may well be divisible. It may, for example, be possible to conclude that a pre-existing illness, for which the employer is not responsible, has been materially aggravated by the wrong (in terms of severity of symptoms and/or duration), and to award compensation reflecting the extent of that aggravation. Even in a case where the Claimant tipped over from being under stress to being ill, the Tribunal should seek to find a rational basis for distinguishing between a part of the illness that is due to the employer’s wrong and a part that is due to other causes; but whether that is possible will depend on the facts and the evidence, if there is no such basis, the injury will be truly indivisible, and principle requires that the Claimant is compensated for the whole of the injury (although if the Claimant has a vulnerable personality, a discount may be required on that basis). Smith v Manchester Awards[46]In Smith v Manchester Corporation [1974] 70 KIR1 the plaintiff’s award of damages was increased for future loss of earning capacity. The Court explained that this sum was to compensate the plaintiff from the fact that, if she became unemployed, she would find it more difficult than uninjured persons to obtain employment.[47]A plaintiff’s loss of earning capacity arises where as a result of injury his/her chances in the future of getting in the labour market work (or workers well paid as before the accident) have been diminished by the injury.[48]The first question to consider is whether there was a real or substantial risk that the Claimant would lose their current job before the end of their working life. If the answer to that question is yes, the starting point should be the amount which a plaintiff is earning at the time of the trial and an estimate of the length of the rest of their working life. Consideration should be given to how great the risk is that the plaintiff will lose their present job at sometime before the end of their working life; when it may materialise – remembering that they may lose a job and be thrown on the labour market more than once. The next stage is to consider how far they will be handicapped by their disability if thrown on the labour market – that is what would be their chances of getting a job, and an equally well paid job. All sorts of variable factors will, or may, be relevant in particular cases – for example, a plaintiff’s age; their skills; the nature of their disability; whether capable of one type of work, or whether they are, or could become, capable of others; whether they are tied to working in a particular area; the general employment situation in their trade or area, or both. The court will have to make the usual discounts for the immediate receipt of a lump sum and the general chances of life. In practice such awards usually range between six months and two years earnings. Uplift of Awards[49]Section 207A Trade Union and Labour Relations (Consolidation Act) 1992 provides that awards of compensation may be adjusted because of failure to comply with a relevant code.[50]Section 207A(2) provides that: “If, in the case of proceedings to which this section applies, it appears to the Employment Tribunal that –(a) the claim to which the proceedings relate concerns a matter to which a relevant Code of Practice applies;(b) the employer has failed to comply with that Code in relation to that matter, and(c) that failure was unreasonable, the employment tribunal may, if it considers it just and equitable in the circumstances to do so, increase any away it makes to the employee by not more than 25%.” The Evidence[51]On behalf of the Claimant the Tribunal heard evidence from:51.1 Mr Morris, Consultant Obstetrician and Gynaecologist expert witness.51.2 Dr Dhar, Consultant Forensic Psychiatrist and Barrister (non practising) and psychiatric expert witness.51.3 The Claimant herself.[52]On behalf of the Respondent the Tribunal heard evidence from:52.1 Mr Barton-Smith Consultant Gynaecological Surgeon and Endometriosis Specialist Expert witness.52.2 Dr Turner, Consultant Psychiatrist with specialist involvement in field Trauma and Adversity expert witness.[53]In addition the parties’ original intention was for the Tribunal to hear evidence from Mr Moore and Ms Jeffries. However, as referred to above, the evidence with which they were dealing has been “parked” for the Claimant’s second claim.[54]In addition the Tribunal considered the documents to which it was referred in two lever arch bundles of documents comprising over 900 pages. Findings of Fact[55]This is the third hearing the Tribunal has convened in order to determine various aspects of the Claimant’s claims (as opposed to Preliminary Hearings dealing mainly with case management matters).[56]The first of these full merits hearings, conducted in April and May 2017, we refer to as “The Liability Hearing”, or “The Liability Judgment”.[57]The second of these, in February 2018, we referred to as “The Reconsideration Hearing” or “The Reconsideration Judgment”.[58]This hearing has been in order to determine remedy.[59]This judgment needs to be read in conjunction with The Tribunal’s Liability Judgment; and The Tribunal’s Reconsideration Judgment. We do not repeat, for example, findings of fact made in those previous hearings, although we make references to that judgment from time to time.[60]Nor does the Tribunal seek to record every detail provided to us in the extensive documentation provided to us in the remedy hearing, or details elicited through extensive evidence from the witnesses. We have, however, considered all the evidence provided to us and we have borne it all in mind.[61]Helpfully, included in the bundle of documents was a summary of the judgment findings setting out which of the Claimant’s allegations of race and sex discrimination were upheld. We attach this, for ease of reference, to this judgment.[62]A key issue for this Tribunal was the issue of causation. The expert evidence provided by four witnesses was directed at this issue.[63]This is not a case where the expert witnesses have taken completely opposite stances to each other, although there are important differences between their evidence.[64]There was a large degree of agreement between the gynaecological experts as to the Claimant’s physical symptoms. In so far as both gynaecological experts gave opinions as to the causes of those physical symptoms they were in disagreement.[65]There was a considerable measure of agreement between the psychiatric experts. Both Dr Dhar and Dr Turner agreed that the Claimant’s psychiatric ill health from 2016 onwards was contributed to by her gynaecological issues; and both agreed that it was contributed to by the discrimination to which she was subjected by the Respondent. Where they disagreed was as to which was predominant.[66]We have, therefore, considered the quality of all of the evidence of all the witnesses before us at this remedy hearing.[67]In the case of the Claimant this Tribunal has, of course, already heard extensively from the Claimant at the liability hearing. At paragraph 53 of the liability judgment we set out our assessment of the Claimant’s evidence. In summary, we found the Claimant’s evidence to be reasonably plausible and convincing; albeit with some qualifications, as given in paragraph 53 of The Liability Judgment.[68]The Tribunal has in mind that it is now over a year since the Tribunal heard evidence from the Claimant at the liability judgment. Since then she has continued to be off work sick because of continued physical and mental ill health. The psychiatric experts agree that the prolongation of litigation is having an adverse effect on the Claimant’s mental health; and that her mental health is likely to improve, together with her prospects of successfully returning to work, when her litigation against the Respondent has been completed.[69]Taking these factors together, although our assessment of the Claimant’s evidence did not differ greatly from that given at paragraph 53 of The Liability Judgment, her evidence for this remedy hearing appeared slightly less reliable. In the context, of her prolonged absence from work and prolonged mental illness, this was not surprising to the Tribunal. She appeared, in particular, to have underplayed some of the evidence presented to the Tribunal of references in her medical records to the extent which she was complaining of symptoms from endometriosis between 2013 and 2016, as opposed to complaining about her treatment at work.[70]As regards the quality of expert evidence, there were aspects of the evidence of each where we prefer one over the other, as is our job to do. We were impressed, however, with the expertise and quality of evidence given by all the expert witnesses. Some had more specialist expertise in some areas than the other. For example, Mr Barton-Smith’s expertise in endometriosis was particularly impressive, whereas Mr Morris described endometriosis as being a specialist interest of his, rather than a specialism. Mr Morris had a longer period of qualification than Mr Barton-Smith as a doctor. Ms Genn made a more “head on” attack on the impartiality of Mr Morris and Dr Dhar; Mr Gardiner’s approach was more subtle. The Tribunal accepts that the experts were all doing their best to assist the court, although in some respects there were differences in their opinions. Gynaecological History[71]The Claimant suffered symptoms of endometriosis in 2008. This caused her severe pain.[72]In January 2009 the Claimant had a major operation to treat her endometriosis. This operation was successful in that her symptoms of pain were much reduced at the time. She was able to return to work quickly.[73]In 2009 the Claimant was recommended to have a hysterectomy to treat her endometriosis. They were advised that if they wanted to have a child this would be the best time to try for it.[74]After about two months of trying to have a child they sought further advice. They discovered that the Claimant’s husband’s sperm count was found to be azoospermiatic.[75]In 2011 the Claimant had IVF treatment which was unsuccessful. The Claimant explained that she abandoned IVF at that time because of her condition; and that doctors advised her to think about adoption.[76]Although the Claimant’s endometriosis was under control in the years between having the operation and starting work at the Respondent’s Chelmsford office 2013, she was not entirely symptom free. For example, the Claimant’s GP notes refer to her wanting to try acupuncture for endometriosis in November 2012.[77]The Tribunal was taken to references in medical notes to the Claimant experiencing pain during sexual intercourse and suffering from vaginismus.[78]There was a dispute between the gynaecological experts as to when the Claimant suffered pelvic pain, Mr Morris stating that it started and continued following the recurrence in 2009; and Mr Barton-Smith stating that there was no evidence to suggest she had a recurrence of pain until symptoms developing from April 2013 leading to her admission in June 2016.[79]There are also a number of references in medical notes to the Claimant being anxious about having speculum internal investigations, to the extent of declining to have them; and also being too tense to have smear tests and certain injections.[80]We prefer Mr Morris’s evidence as to when the Claimant first experienced pelvic pain, as there were references in letters from Ms Matthews, Consultant Gynaecologist, in May and November 2009, referring to the Claimant having “had problems with pelvic pain recently”; and to the Claimant being “crippled with pain once again from her endometriosis”.[81]Both Mr Morris and Mr Barton-Smith agreed in their joint report that chronic pelvic pain is a possible symptom of endometriosis and that chronic pain, and in particular pelvic pain, can be caused by psychological problems. In view of this response and having heard the evidence of the two gynaecological experts, the Tribunal prefers to view the pelvic pain experienced by the Claimant as part of the picture of her endometriosis, rather than an entirely separate condition in its own right. In either case, however, the issue for the Tribunal is whether, or the extent to which, the discrimination the Tribunal upheld was responsible for aggravating the physical pain she would otherwise have experienced.[82]The dates of the Claimant’s GP visits were blocked out and in most cases indecipherable to the Tribunal in the copies of records provided to the Tribunal, although the representatives did clarify a few of the dates recorded.[83]In dispute between the parties is whether the Claimant was suffering significant symptoms from endometriosis between 2013 and 2016 (when she had an ovarian cyst, to which we will refer later); whether, in her interview with Mr Barton-Smith for his expert report, he failed to ask her specific questions about pain she experienced between 2013 and 2016; and whether, as the Claimant says and Mr Barton-Smith disputes, he failed to ask the Claimant specific questions about endometriosis.[84]Our findings of fact on these disputes are as follows.[85]In 2012 the Claimant had a trial for acupuncture treatment to help her endometriosis. She found this helpful and, shortly after she started work in the Respondent’s Chelmsford office, she was able to have acupuncture treatment under the NHS as a place near to work. She found this helpful in managing her symptoms.[86]As regards the dispute as to what Mr Barton-Smith asked the Claimant we accept that, during the course of a one and a half hour interview, Mr Barton-Smith asked the Claimant general questions about the pain that she was suffering from. We accept that he did ask her questions about pain during sexual intercourse, bowel movement, urination and period pain. We do not doubt that Mr Barton-Smith was conscientious, and that he is experienced in providing medical reports and we do not doubt the evidence he gave that he did ask such questions. To the extent that what there were inconsistencies between what the Claimant said to Mr Morris and Mr Barton-Smith, we have taken these inconsistencies into account in our assessment of the reliability of the Claimant’s evidence.[87]In her interview with Mr Morris, the Claimant referred to sexual problems arising from her endometriosis, causing her and her husband to gradually stop having sex from 2013 onwards due to severe pelvic pain which she has continued to experience from then. The Claimant also reported to Dr Morris that she had endometriosis symptoms five to twelve months into work, that she felt harassed at work, and he noticed that when she cried the paid worsened.[88]The Claimant’s explanation for not having spoken to her GP between 2013 and 2016 about harassment at work or about endometriosis to any great extent was that she did not have confidence that they would be able to help. This was not entirely convincing to the Tribunal.[89]Nevertheless, the gynaecological experts agree that the Claimant continued to have endometriosis in the years following her operation in 2009, even although the symptoms were less apparent (according to Mr Morris); or more or less symptom free (according to Mr Barton-Smith).[90]The Claimant was working without any significant sickness absence between 2013 and 2016. The Tribunal also finds that she was not reporting endometriosis symptoms because she was relatively symptom free at the time.[91]The Tribunal accepts that the Claimant’s evidence at this hearing and The Liability Hearing that she was deeply upset at the unlawful discrimination she was experiencing from the Respondent at the Chelmsford office between 2013 and 2016. This was evidence that she gave during the liability hearing, as well as at this hearing and was convincing. It must have been and we accept was extremely upsetting for the Claimant to be experiencing bullying and harassment and discriminatory behaviour from her colleagues and managers that were mishandled in the ways to which we have referred in The Liability Judgment. Her feelings of upset over the discrimination she experienced from the Respondent persisted, therefore, for some years before the onset of the Claimant becoming mentally ill.[92]It should also be borne in mind that the Claimant had a lot of stresses in her life during this period as well as the discriminatory treatment. Having the knowledge of a life long condition of endometriosis, which can be managed but not cured, not having been able to conceive at times when she wanted to start a family; together with having sexual problems caused by her endometriosis were all stressful for her.[93]In 2016 the Claimant was planning to have fertility treatment. She and her husband went to South Africa in March 2016 to search for a suitable IVF clinic for treatment. Their plan was to return to South Africa in December 2016 for a month.[94]In June 2016 events took place which led the Claimant and her husband to postpone their attempts to start a family.[95]On 3 June 2016 the Claimant felt such sharp stabbing pains in her stomach as to need hospital admission.[96]The cause of the Claimant’s sharp pain transpired to be a haemorrhagic cyst. Here was a dispute between Mr Morris and Mr Barton-Smith as to whether the cyst developed from about April 2016 (Mr Barton-Smith’s opinion); or that there was no evidence before June 2016 that this was occurring (Mr Morris’s opinion). It is unnecessary for the Tribunal to make a finding on this dispute, as both the experts agree that the Claimant’s ongoing endometriosis became severely symptomatic in 2016; and their differing opinions on this point makes no difference to the Tribunal’s findings on causation.[97]The Claimant was treated at hospital with a combination of antibiotics, painkiller and non-steroidal drugs. The Claimant discharged herself from hospital on 5 June 2016.[98]The Claimant was readmitted to hospital from 7 – 9 June due to pain, clots and heavy vaginal bleeding.[99]The Claimant returned to work after an absence of about a week and remained at work until going off work sick on 23 September 2016. The Claimant has remained off work sick from that date onwards. The initial fitness certificates from her GP practice gave the reasons for her absence from work as being “endometriosis, anxiety, harassment at work”; and “endometriosis, emotional distress”.[100]The Claimant was prescribed with monthly injections.[101]The Claimant anticipates having further surgery for her endometriosis. Both Mr Morris and Mr Barton-Smith agree about the treatment involved and the prognosis. They summarised their advice as follows. Their expert opinion was that the Claimant will need to undergo major treatment for the endometriosis including a full diagnostic trans-vaginal scan or MRI, assessment of ovarian reserve under the care of an endometriosis expert with full discussion to allow the patient to be a reasonable patient so that she has all the information possible to come to a decision about her future care.[102]Mr Barton-Smith’s opinion (with which, so far as the Tribunal is aware Mr Morris did not disagree) was that the evidence was that the surgical excision of endometriosis by an expert and carried out approximately gave an 80% chance of significant pain reduction at one year post surgery and that medical management may also play a role as an adjuvant therapy, or even a stand alone therapy if the surgical risks were not accepted by the Claimant. They advised that the Claimant would likely benefit from the input of other specialists as appropriate, which may involve pain specialists, physical therapists and psychological specialists.[103]The experts advice that there is an 80% chance that the Claimant would have pain reduction at one year; however, there would be a 10 – 50% chance of recurrence over the next three to five years. Their advice was that, from the fertility perspective, there is an approximately 29% chance of spontaneous conception following surgery and an approximate 29% chance of IVF success with no surgery. Because the Claimant’s husband has azoospermia would be reliant on IVF to achieve a successful pregnancy.[104]The advice as to the costs of the operation is approximately £9,500; however, if the Claimant had complications and required bowel resection, the price could rise to approximately £30,000.[105]Both experts agreed that it would be reasonable to allow the Claimant back to work within two months. They also agreed that, if the Claimant decided on surgery and suffered a major complication then the period of time can be extended from two months to four months. Psychiatric illness[106]As referred to above the Claimant has been off work sick since 23 September 2016. The Tribunal was not made aware of the up to date fitness notes certificates given reasons for his sickness absence, other than the ones to which we have referred to above.[107]Dr Dhar and Dr Turner agree, however, that the Claimant has had a recognised psychiatric disorder with an onset in June 2016. They agree that the reasonable range of diagnosis include adjustment disorder with mixed anxiety and depressed mood (DSM – 5), major depression with prominent anxiety (DSM – 5) and mixed anxiety and depressive disorder (ICD – 10). They agree that there is a substantial overlap between these diagnoses; and that the onset of psychiatric disorder was in June 2016.[108]The Claimant was referred for psychology therapy and had eight sessions of cognitive behavioural therapy from Ms Jacqui Farrants from August to November 2016.[109]Ms Farrants’s notes of the Claimant’s sessions with her made references both to work place issues; to health issues (endometriosis, painful sex, fear or injections; and to IVF issues and adoption considerations.[110]By session 6 the Claimant was referring to feeling stronger and confident about returning to work in a new team; although by session 7 she was referring to her endometriosis being painful and dehabilitating, together with anxiety following contact with her employer.[111]By session 8, on 28 November 2016, Ms Farrants referred to the Claimant losing confidence socially. Ms Farrants also referred to the Claimant prioritising her needs, wishing to end psychological therapy sessions at present and make time to work with physical health specialist to deal with pain, the mobility and surgery. She referred to the Claimant arranging to see a psychiatrist for mediation to help with pain in preparation for surgery and injections.[112]The Claimant was assessed in December 2016 by Dr Grant, a consultant psychiatrist.[113]Dr Grant prepared a report in which the Claimant’s account of the treatment she had received at work between August 2015 and going off work sick. Dr Grant’s report refers predominantly to the Claimant’s description of her treatment at work; and relatively little on her endometriosis condition or desire for a family. She commenced the Claimant on sertraline, a form of antidepressants, and also explained to the Claimant that she would need CBT in due course and would be reviewed again in December.[114]In December Dr Grant described the Claimant as feeling very low, made reference to operations needed for endometriosis; and advised that there had been no change in her mental state since last seeing her. She reviewed her in January 2017, by which time the Claimant was taking sertraline. Dr Grant continued to treat the Claimant during the course of 2017 and the Claimant continues to experience mental illness.[115]So far as the Claimant’s prognosis for mental illness is concerned Dr Dhar and Dr Turner agreed to a certain extent.[116]Both agreed that the Claimant should be treated with medication, psychological treatment and with a rehabilitative focus. They advised that she should be encouraged to look for a small part-time volunteer role, gradually increasing as she gains confidence again. They agree that she should be provided with 16 – 20 psychologist sessions, including behavioural activation and that it might be helpful to include some elements of interpersonal psychotherapy.[117]There was a disagreement between Dr Dhar and Dr Turner as to whether or not the Claimant would also benefit from what Dr Dhar described as some more meaningful day time activity and would support through a day therapy programme. Dr Dhar recommended group therapy sessions to help the Claimant with isolation and trust the issues following harassment and discrimination. Dr Turner disagreed; he did not consider that day therapy or group therapy would be required.[118]Both Dr Turner and Dr Dhar considered that the Claimant is more vulnerable to psychiatric ill health than before the events that gave rise to her current mental illness. Dr Turner estimated future risk as being about 10%; Dr Dhar has been 50%.[119]Both Dr Dhar and Dr Turner agreed that the Claimant should be able to return to her employment with the Respondent, provided that it was to a different team.[120]Dr Turner considered that, assuming that litigation runs to spring 2019, her psychiatric disorder would be likely to recover by mid 2019 she should be fit to return to full-time paid employment from mid 2019. Dr Dhar considered that once the litigation is over she will be able to complete her recovery and return to full-time paid employment after an initial phased return. Causation of the Claimant’s psychiatric illness[121]The key dispute between the parties is whether the Claimant’s psychiatric illness has been caused by the unlawful discrimination she experienced from the Respondent, as is her case; or whether it is largely caused by a multi factorial combination of prior anxiety symptoms, prior endometriosis and prior problems with vaginismus and infertility, as is the Respondent’s case, based on Dr Turner’s evidence with some supporting opinion from Mr Barton-Smith, to the extent that Mr Barton-Smith gave an opinion on this issue, rather than deferring to the opinions of the psychiatric experts.[122]As regards prior anxiety symptoms, both Dr Turner and Dr Dhar agree that the onset of psychiatric disorder was in June 2016. Dr Turner accepts that she had no diagnosable psychiatric illness before that date, although the two of them disagree as to whether there was some prior vulnerability demonstrated by prior anxieties.[123]On the dispute as to prior anxiety, the Tribunal preferred to a greater extent Dr Dhar’s evidence. The Claimant was cross-examined on the number of issues in the years leading up to and after her onset of mental illness on matters such as having a fear of injections, speculum examination and an occasion relatively recently when she had a check up for possible tuberculosis following her sister having been previously in receipt of such a diagnosis. As regards earlier anxiety issues Dr Turner referred in his report to events during the Claimant’s childhood, such as the death of her father when she was young and her mother’s style of parenting. The Tribunal preferred Dr Dhar’s evidence on this point- it appeared to us to be the more plausible that these were events to which the Claimant’s responses appeared to be in line with what would be expected in the circumstances and were one off descriptions based on short GP consultations, rather than symptomatic of generalised anxiety disorder.[124]When giving his first expert report Dr Turner advised as to whether the proven acts of racial harassment from April 2013 to February 2016 were the cause of her condition, or whether those acts contributed to or exacerbated it at all. He advised at that point that but for the endometriosis she would probably not have developed her psychiatric disorder when she did; and that similarly, but for the stress arising from the proven harassment, she would probably have experienced marked distress with the return of endometriosis symptoms but she would probably have derived support from her work and probably not had developed a formal psychiatric disorder. He concluded, overall, that probably both aspects were of equal significance, about 50% each.[125]Subsequently, in Dr Turner’s joint report he changed his opinion to being that more important to the fact as in June 2016 was the physical condition and that stress at work was probably a secondary but still substantial contributory factory. He explained this change in his opinion as being the result of having read the expert gynaecology evidence and that he had underestimated the impact and severity of the endometriosis – both the effect of the acute episode and the impact of her ongoing condition.[126]Dr Dhar, on the other hand, had the opinion that although the acute episode of endometriosis did contribute to the psychiatric ill health both the Claimant’s account and treating clinicians involved in the assessment in treatment of the Claimant’s psychiatric disorder from 2016 have repeatedly attributed it to work related issues. He also referred to the gynaecological opinion supporting the possibility that the pelvic pain itself can be caused by psychological problems. His opinion was that the acts of harassment and discrimination were of more importance than the acute episode of endometriosis, namely the haemorrhagic cyst experienced by the Claimant.[127]When asked during cross-examination as to what percentages Dr Turner would now ascribed to each cause, he declined to give an opinion, stating that he would rather give a range of figures (but did not give any range that he might have had in mind).[128]The Claimant’s case was that the Claimant’s injury was indivisible and that no deduction should be made. The interrelationship, it was submitted on behalf of the Claimant, between the Respondent’s conduct, the psychiatric consequences, the impact of her psychiatric illness on her perception of physical pain, and that additional physical pain on her psychiatric illness was too complex for the injury to be divisible. The Respondent submitted that the Claimant could not establish on the medical evidence that she can attribute more than a modest proportion (20%) of her future losses to the Respondent’s conduct.[129]Can we, the Tribunal, identify, however broadly the particular part of the suffering which is due to the Respondent’s wrong? The Tribunal considers that we can do this.[131]The Claimant’s expert psychiatric witness, Dr Dhar, agreed with Dr Turner’s view that the causes of the Claimant’s psychiatric ill health were multifactorial. We accepted that the Claimant’s endometriosis and haemorrhagic cyst were a causative factor of her psychiatric illness, although he considered the Respondent’s discriminatory treatment towards the Claimant as being the predominant cause. The Tribunal accepts that the respective experts did not give precise percentages as to causation, although Dr Turner did in his first report. Both agreed that the harm in question (the Claimant psychiatric illness) was caused both by the Respondent’s discrimination and by other factors and the Tribunal considers, in these circumstances, that it is appropriate to divide the two.[132]The Tribunal considers that 50% of the Claimant’s psychiatric illness was caused by the Respondent’s unlawful discrimination; and 50% by the other causative factors to which the experts have referred. We so find because:132.1 The Claimant coped with the condition of endometriosis for many years with minimal time off work and managing her symptoms.132.2 The Claimant was also, undoubtedly, had stresses caused by other associated problems on her endometriosis, such as sexual difficulties.132.3 Although the Claimant has had the disappointment of not being able to conceive to date, she remains optimistic that she will be able to do so in future. The medical evidence confirms that she has a realistic prospect of being able to have a child, although this is far from certain (we set out earlier above their estimates as to the percentage chances).132.4 The Claimant returned to work promptly, after the absence of about a week, following her hospital visits and treatment for her unexpected haemorrhagic cyst in June 2016. She remained at work for over two months before going off work sick. The cyst was not therefore, at least, an immediate cause of her sickness absence in September.132.5 Equally, although distressed at the Respondent’s discriminatory treatment over a period of years from 2013 to 2016, she remained at work with minimal sickness absence.132.6 When the Claimant first went off work sick in September 2016 her sickness certificates gave endometriosis, anxiety and work harassment as the causes of her sickness absence. This, we find, was an accurate reflection of the causes that tipped her into psychiatric illness. Both were equally present.132.7 In the Claimant’s treatment for her psychiatric illness, from Ms Farrants and Dr Grant, the Claimant refers both to the problems associated with the harassment she suffered at work and to other factors, particularly endometriosis. We have in mind that we need to consider the Claimant’s own self descriptions with care. We have given our assessment of the quality of her evidence both at the liability hearing and this remedy hearing. As stated above, the Tribunal finds that the Claimant has underplayed the effect of her endometriosis on her psychiatric ill health, although we have accepted that it was an equal factor.[133]For all elements of the Claimant’s claim for which 50% needs to be deducted because of the Tribunal’s decision on apportionment, the Tribunal expects the parties to do this. Psychiatric illness-pain Suffering and Loss of Amenity (“PSLA”)[134]Here the difference between the two parties was that the Claimant placed her award in the moderately severe bracket, from £16,720 to £48,080; whereas the Respondent placed it at the moderate level of between £5,130 - £16,720; placing the correct figure as £15,000 (to which, according to their case, there should be an 80% reduction for causation). The Tribunal has considered the factors set out in Chapter 4 of 14th edition of the Judicial College Guidelines provided to us. We derived less assistance from the cases to which we have referred, although we have considered them.[136]The Tribunal awards £30,000 under this heading (reduced by 50% because of our findings upon causation- as with other elements of her personal injury claim) because:136.1 There are significant problems associated with factors (i) to (iv) on psychiatric damage generally. They have had a substantial effect on her ability to cope with life, and work. She has become more socially isolated (as described in Dr Dhar’s report). She has been off work with sickness absence. It has had effects on her relationship with family and friends. So far as the extent to which treatment would be successful, the Claimant’s psychiatric illness, by the date of this hearing, had persisted since September 2016 so that to date the treatment has been unsuccessful in that her mental illness has persisted. Both experts agreed that she is more vulnerable to future psychiatric illness, although the Tribunal will place the vulnerability as slightly closer to Dr Turner’s assessment of 10%, rather than 50% given by Dr Dhar. She has had expert advice on the best treatment she needs to recover from mental illness, we expect her to follow the advice given and, helped by the award being made by the Tribunal, she should have the funds to get the treatment advised. There have not been marked improvements in the Claimant’s psychiatric illness by the date of this remedy hearing, although the longer term prognosis is reasonably hopeful. We place the vulnerability at 25%.136.2 The Judicial College Guidance advices that majority of moderately severe awards are somewhere near the middle of the bracket and that is where we place it. Whether to make an award for exacerbation of physical symptoms[137]The Tribunal was provided with considerable amount of evidence, in the gynaecological expert reports, the psychiatric expert reports and the cross-examination of the witnesses as to whether, or the extent of which, the Respondent’s discrimination was responsible for aggravating the underlying pain the Claimant would otherwise have experienced from her recurring endometriosis, which became severely symptomatic in 2016. We were provided with a number of medical papers on which the different experts placed varying degrees of reliance.[138]The Tribunal makes an award for exacerbation of the Claimant’s physical injury for the following reasons.[139]The Tribunal finds that the Claimant’s psychiatric illness, to which, as above, we apportioned as above did aggravate the underlying pain to some extent. The joint expert psychiatric report contained a statement that the Claimant’s psychiatric symptoms “were probably impacting on her perception of pain”. Dr Turner stated, when examined in chief, that he accepted that someone depressed can affect their perception of pain and that is well recognised. Both gynaecological experts agreed that chronic pelvic pain is a possible symptom of endometriosis and that chronic pain, and in particular pelvic pain, can be caused by psychological problems. Dr Dhar and Dr Turner agreed in their joint expert report that the Claimant’s psychiatric symptoms were probably impacting on her perception of pain. The Tribunal also has in mind that the Claimant was able to work, with minimal time off work, in spite of endometriosis that had been present for many years, until September 2016; and had returned to work promptly after the occurrence of a haemorrhagic cyst to which we referred in our findings of fact. Her sickness absence in September 2016, which has transpired to be a long term and continuing absence, was triggered in part to her endometriosis, according to the contemporaneous medical certificate produced.[140]Having found that the discrimination committed by the Respondent did aggravate the underlying pain from her physical injuries, the Tribunal has considered to what level of award it would be appropriate to make. We have been referred to chapter 8 of the Judicial College guidelines, the Claimant placing the aggravation of her physical injury in 8(b)(ii), namely the band from £18,480 to £33,750. The relationship between the Claimant’s increased experience of chronic pain due to her psychiatric condition, the aftermath of the Claimant’s cyst, her ongoing condition of endometriosis is a complex interrelationship and difficult to differentiate. Different considerations arise from those of the psychiatric injury. As regards psychiatric injury, the Claimant went from not having a psychiatric disorder to having one. As regards physical injury, the Claimant already had endometriosis before she started working at the workplace in which she suffered discrimination; and was not symptom free, although she managed her symptoms well. We have also preferred the analysis of the Claimant’s chronic pelvic pain as forming part of the overall picture of the Claimant’s endometriosis, rather than being a discrete disorder. Having all these factors in mind, we place the exacerbation as falling below the starting point of the moderate bracket referred to in the Judicial Guidelines.[141]We consider it appropriate to award £10,000 for physical injury, from which, as with the psychiatric injury, there should be a reduction of 50%. Aggravated damages claim[142]The parties dispute whether an award should be made for aggravated damages in addition to an injury to feelings award. The Tribunal also to have in mind that, if minded to make such an award, we need to avoid double counting with the injury to feelings award made by us.[143]In the circumstances of this case, the Tribunal considers that it is appropriate to make an award. There was a refusal on the part of two senior managers (Mr Falkingham and Mr McDonald) to whom the Claimant complained to recognise that her complaints included complaints of race discrimination, in spite of their organisation having good policies designed to deal with discrimination, such as those described as “The Barclays Way” to which we referred in The Liability Judgment. To use an expression, this added insult to injury. She not only experienced unlawful discrimination from her colleagues and manager, but the more senior managers to whom she complained refused to recognise that she was making complaints of discrimination. Additionally, no apology has been made to the Claimant, who remains an employee of the Respondent and will need, when returning to work, to be able to work in an environment in which she does not experience further unlawful discrimination.[144]The Tribunal considers an award of £2500 to be appropriate, slightly less than that sought on behalf of the Claimant. Injury to feelings claim[145]The Tribunal makes an award for the acts of discrimination that were successful, not those for which the Tribunal would have upheld if they had not been out of time. We accept Ms Genn’s submissions that it would be inappropriate to make an award for complaints that the Tribunal held that it did not have jurisdiction.[146]The representatives disagree as to the level of award to be made. The Claimant seeks £40,000; the Respondent allows for £25,000.[147]The Tribunal awards £30,000. We find this sum to be appropriate including for the following reasons.[148]The discrimination was prolonged, lasting for about three years. Her manager failed to protect the Claimant from some of her colleagues’ discriminatory treatment and committed acts of discrimination herself. The Claimant experienced hostility and discrimination from some of her colleagues for years. The Claimant’s attempts to resolve her complaints internally were made worse by further acts of discrimination being committed towards her. There were numerous complaints of discrimination that were upheld- the Tribunal is not dealing with isolated, or a few incidents, or a short time span. There were acts of discriminatory harassment.[149]The Tribunal places the award above the lowest point of the top band, although towards the lower end, having in mind that we are making a separate award for aggravated damages. Additional travel costs to date[150]The Claimant did not produce much evidence to substantiate the past travel costs she has undertaken, claiming £4005.24. The Respondent has accepted (subject to apportionment) £1627.50, stating that they have removed costs of gynaecological appointments, consultation fees, and travel to the ET for the trial. In the absence of having a more specific understanding of what all the travel was for and justification for the specific elements claimed, the Tribunal prefers the Respondent’s figure of £1627.50; and we award this sum (subject, as in other appropriate instances, to the 50% apportionment we have found in our findings above). Loss of basic earnings to date[151]The difference between the two parties’ figures is, we understand, that the Claimant has received 50 days holiday pay, paid at full pay. We understand that the Claimant’s contractual sick pay has been exhausted, so that the Claimant would otherwise have been on nil pay.[152]The Tribunal accepts the Respondent’s submissions on this issue. If the Claimant had been at work, she would have received, we understand, the figure set out by the Respondent, so this is what she has lost. Additionally, the Tribunal bears in mind that caselaw on sickness and holiday pay indicates that an employee cannot claim back holiday pay indefinitely for past sickness absence, so that if the Claimant does not use her holiday pay, she may risk losing it altogether beyond a cut off date. Interest[153]The period of time, the dates from which, and until which, and the rate at which interest is awarded are governed by the Employment Tribunal (Interest on awards in discrimination cases) 1996. The Tribunal adopts the relevant provisions.[154]Interest on the award for injury to feelings and pain suffering and loss of amenity runs from the midpoint of the period for which the discrimination has occurred, namely between April 2013 and 1 June 2016, as submitted on behalf of the Claimant. The Respondent agreed in principle with interest being awarded and did not, so far as the Tribunal is aware, propose different dates for calculation of this sum. We accept, therefore, the Claimant’s figure of 28.67%.[155]So far as financial losses are concerned, the Tribunal is unclear as to whether, with some of the calculations for financial loss having been deferred to the Claimant’s next claim listed for hearing in October, whether we are in a position to make such an award at present. The closing submissions, for which we were time limited, did not address this point.[156]The Tribunal invites the parties, therefore, to agree the sum for interest on loss of earnings if it is appropriate to do so at this stage; or defer the issue, if it needs to be deferred. Costs of medical treatment[157]There are a number of elements to this claim. As with other aspects of the Claimant’s claims, where the parties are agreed we adopt their agreement and only make findings on areas in dispute between the parties.[158]The Tribunal makes no award for the sums claimed for ovary stimulation and for the endometriosis operation that is envisaged for her. We are not satisfied that absent the discrimination the Claimant would not have needed such treatment. We are not satisfied that, in order to become pregnant the Claimant would not have been recommended to have ovary stimulation in any event. Although the Tribunal has accepted that the Claimant’s pain from endometriosis has been exacerbated to some extent by the discrimination committed by the Respondent, we consider it more likely than not that she would have needed an operation in any event. Nor, so far as we are aware from the medical reports to which our attention was drawn, were opinions given that the discrimination suffered by the Claimant is a causative factor in needing these future treatments.[159]There was a claim in the schedule of loss for £3000 for future medical treatment, broken down to £1500 for seeing a pain specialist for treatment and £1500 for psychosexual therapy. These sums were based on a recommendation in Dr Morris’s medical report, although not followed up in the joint report of him and Dr Barton-Smith. Little was provided on these claims in the skeleton arguments or closing submissions of the representatives and they are relatively incidental sums in the many elements of the schedule and counter schedules of loss. It is not easy to make decision on these elements. For similar reasons to those given above, the Tribunal finds that it is more likely than not that these would have been needed absent the Respondent’s discrimination towards the Claimant.[160]In paragraph 10 of the joint psychiatric report, the experts agreed that the Claimant should be provided with 16-20 psychology sessions, which we understand to be further CBT sessions at a cost of £150-£180 per session. In Dr Dhar’s report, however, he recommended 12-18 CBT sessions, giving the cost as being about £80-120 per session. Ms Genn, on the other hand, stated in her skeleton arguments and closing submissions that it did not appear to have been included in the joint statement (although our understanding (as above) is that it was. Neither expert, so far as we are aware, was asked questions on this point. With some hesitation, therefore, the Tribunal finds as follows. The Claimant appears to have found the CBT sessions she had with Ms Farrants to be helpful and we consider that, in view of the joint recommendation would benefit from the further treatment. We accept 18 future sessions, the mid point of what was recommended and at £165 each, again the mid point of the figure given.[161]The Tribunal accepts the Claimant’s claim for a day and group therapy programme accepting the mid point in the range of costs envisaged between £6400 and £8000. We accept Dr Dhar’s evidence that this would be of benefit to her in helping with isolation and trust issues. Ms Farrants also referred to the Claimant being socially isolated. The Tribunal is satisfied that this would support the Claimant’s rehabilitation towards being able to return to work for the Respondent as, we were informed, is the aim of both parties. We award the mid point between these sums, namely £7200. Handicap on the labour market- “Smith v Manchester award”[162]The Claimant’s case on this was that a lump sum should be awarded because of the Claimant’s increased vulnerability to suffer psychiatric injury in the future and how much of her working life she potentially has left.[163]The Respondent’s case by contrast is that no award should be made, as there are continuing efforts to create a post for her so that she can continue to work for them, her earning capacity has not been impaired and her vulnerability to future psychiatric injury does not result in an inability to continue in employment, notwithstanding some possible impact on her ability to work from time to time.[164]The Tribunal is satisfied that it would be appropriate to make an award, having in mind the guidance given in the Smith v Manchester case, as explained in the case of Billett v Ministry of Defence (2015) EWCA Civ 773. The Claimant is relatively young, with many years of potential career ahead. We are pleased to understand that the Respondent is committed to have the Claimant return to work following her lengthy sickness absence; and we bear this in mind in the level of award we make. Until, however, the Claimant is back at work, in a position that has been offered and accepted by her, the Claimant’s return to work is less than certain. The Claimant’s greater vulnerability to future mental illness, be it at the level advised by Dr Dhar, or that by Dr Turner, places a greater risk of losing her job in future, as well as other uncertainties in retaining a job with a particular employer generally. We place that vulnerability at some point between the two experts’ respective figures of 10% and 50% increase. We consider, therefore, that there is a “real risk” that the Claimant could lose her job and be thrown onto the labour market at a time not of her choosing, either through a return to work not having been accomplished successfully, or at some point in the future. We also consider that her greater vulnerability to mental illness creates some degree of handicap in finding and retaining future employment, although we also recognise that she is an intelligent, able individual. We note that, in practice, awards range between six months and two years earnings. We would place the award at the lower end of this range and award six months. Whether to make an increase of award pursuant to section 207A TULR(C)A[165]The submissions on behalf of the Claimant were that an award of 25% would be appropriate, for failure to comply with the ACAS Code of Conduct on Grievance Procedures. He referred to the Tribunal’s findings that Mr Aldred relied on the responses given by Messrs Farmer, Falkingham and McDonald, rather than carrying out an independent investigation of his own. He pointed to the deficiencies in the grievance process identified by the Tribunal in paragraph 164 of its judgment, submitting that it effectively rendered that process worthless and the deficiencies had not been cured to any extent on appeal.[166]The submissions on behalf of the Respondent were that there primary submission was that there should be no uplift or, if the Tribunal was against them, the uplift should be no more than 15%. No analysis was given in opposition to the submissions of Mr Gardiner on behalf of the Claimant.[167]The Tribunal considers that there was a failure to comply with the Code. It is true that there were meetings and written outcomes to the Claimant’s grievances and appeal. We accept, however, Mr Gardiner’s submissions to the effect that compliance with the code was a matter of form rather than substance. There was a refusal to grasp that the Claimant was making complaints of race discrimination and the manner in which Mr McDonald dealt with the Claimant’s grievance was discriminatory.[168]We consider that it would be appropriate to make an increase of award and make an increase of fifteen percent to the award. Grossing up[169]We leave it to the parties representatives to do the necessary mathematical calculations, including the fifty percent deductions that flow from our decision on apportionment and whatever grossing up may be required. Closing submissions[170]Both parties’ representatives gave written skeleton arguments at the outset of the remedy hearing and Ms Genn, additionally, gave written arguments as part of her closing submissions. Both gave oral closing submissions.[171]We have given the submissions close attention and make various references to them above. We do not, however, set them out in detail here.
Conclusions
[172]For the reasons set out in our findings of fact, we make the awards set out above by way of remedy. Next steps[173]The Tribunal expects the parties to agree the figures for compensation that follow from this judgment, so as for it to be unnecessary for another hearing to be needed. If a further hearing is needed an application can be made to the Tribunal.[174]We are also conscious that the Claimant’s second proceedings against the Respondent are listed in October. We hope that, in the light of this judgment, renewed efforts can be made to settle this case and, if the parties consider that judicial mediation might be a helpful way of achieving this, a joint application may be made.[175]The judge will assume also, unless informed to the contrary by the parties, that the case management orders for the second case are in place; and there is no need for any further case management or further Preliminary Hearing required.