Mrs H Jaleel v Southend University Hospital NHS Foundation Trust: 3201663/2018
EMPLOYMENT TRIBUNALS
Case No 3201663/2018
Between
Mrs H JaleelClaimantSouthend University Hospital NHS Foundation TrustRespondent
Before
Employment Judge Massarella
Members
Mr G. TomeyMr M. WoodDate 21 May 2021
JUDGMENT
[1]the Claimant’s claims of direct race discrimination, harassment related to race and victimisation under the Equality Act 2010 fail and are dismissed; 2. the Claimant’s claim of unfair (constructive) dismissal succeeds.
REASONS
INTRODUCTION
[1]By a claim form presented on 30 July 2018, after an ACAS early conciliation period between 26 June and 11 July 2018, the Claimant, Mrs Henna Jaleel, complained of race discrimination (direct discrimination, harassment related to race and victimisation) and unfair (constructive) dismissal. She was employed by the Respondent, Southend University Hospital NHS Foundation Trust, between 11 December 2002 and 31 July 2018 as a Consultant in Sexual Health Medicine.[2]The Respondent denied that there was any conduct in response to which the Claimant was entitled to resign and treat herself as having been dismissed; it denied discrimination in any form. The Respondent also raised limitation issues.
The Hearing
[3]This hearing was originally listed for five days but, owing to a lack of judicial resources, the Tribunal was unable to sit on the first of those days and the listing was reduced to four days. After discussion with the parties, it was agreed that the hearing would continue, on the understanding that it would probably go part-heard, which it did. The earliest dates that the Tribunal and the parties could reconvene were in October 2019. The parties attended for the first of two days; the Tribunal deliberated in Chambers on the second. Unfortunately, and again because of pressure on judicial resources, there was then a delay in writing up and sending out the judgment, for which the Tribunal apologises.[4]In our initial discussion with the parties it was agreed that the focus of the hearing would be on liability only; evidence and submissions would not be required at this stage on issues of remedy, including on contribution and Polkey.[5]We had an agreed bundle of documents, running to some 750 pages, and a supplementary bundle running to some 300 pages.[6]We heard evidence from the Claimant; she identifies her race as Asian and Pakistani. For the Respondent we heard evidence from Mr Neil Rothnie, Medical Director; Ms Traci Maton, who between 2016 and 2018 was Associate Director of Medicine; Ms Caroline Howard, Clinical Director of Medicine; Ms Sue Bridge, Associate Director of Human Resources; and Ms Fiona Kennedy, Senior HR Business Partner/Deputy Head of HR.
The Issues
[7]The issues for determination were set out in an agreed list of issues, which is included at Appendix A of this Judgment.[8]At the beginning of the hearing, and after discussion with the parties, an additional allegation was added to the list of issues in relation to the decision to readvertise the Claimant’s role as Director of Medical Education (‘DME’) on 31 January 2018, which was an allegation of direct race discrimination; it was numbered as Issue 3(H)(ii). It was agreed that the omission of this issue from the agreed list was an oversight and the Respondent raised no objection to its inclusion.
Findings of Fact
[9]The Claimant commenced employment as a Consultant in Genitourinary Medicine on 11 December 2002. In around 2008 Genitourinary Medicine was renamed Sexual Health Medicine within the Trust.
The law
[10]In addition to her substantive role, she held a number of other management positions at various points between 2005 and the termination of her employment in 2018. These included Departmental Lead (2012 onwards) and Clinical Leadership for writing tenders for services (2013-2014).[11]She was a highly valued member of the Department with a strong track record of excellence. There was no challenge to her evidence that during her time with the Respondent she had no complaints against her from patients or junior colleagues. She received positive feedback at her yearly appraisals, including eight Excellence awards between 2006 and 2012.[12]In December 2012, Mr Neil Rothnie (Breast Surgeon and head of Breast Cancer Services) was appointed Medical Director. Between 2014 and February 2017 the Claimant reported to Clinical Director Dr John Day. ‘SHORE’[13]In 2014 sexual health services in the Southend region were put out to tender. The Claimant was closely involved in the Respondent’s bid, which was successful. In April 2015 the Respondent’s Sexual Health Department started working in collaboration with Essex Partnership Trust (then South Essex Partnership Trust) under a new name: Sexual Health Outreach Reproduction and Education (‘SHORE’). The Director of Medical Education Appointment[14]In January 2015, Professor John Kinnear announced that he was standing down from the role of Director of Medical Education (‘DME’). He invited expressions of interest; the closing date was 30 January 2015. Professor Kinnear, who is white, had held the role for nine years. It had never been advertised during his tenure, although there were three-year break points in his contract, which were not exercised. He told the Claimant that he had never had a separate review in his role as DME, but that a review of the post was carried out as part of his general annual appraisal.[15]The DME post, and the accompanying remuneration, was in addition to the substantive role and salary of a Consultant.[16]Although the Claimant accepts that she was encouraged by Professor Kinnear to apply, she asserts that this was only because two white candidates, Dr Emily Simpson and Dr Lucy Coward, both of whom are white, had been approached to apply but had declined to do so. The only evidence in relation to this was the Claimant’s account of what she inferred from her discussions with Dr Kinnear. This is not an issue in the case and no finding is required, or indeed possible given the scant nature of the evidence.[17]The Claimant was interviewed for, and offered, the role of DME on 19 March 2015. Mr Rothnie was on the panel which appointed her and became her line manager in relation to this role. The Claimant asserts in her statement that his demeanour at the interview, coupled with the fact that there was a short delay in his announcing her appointment, suggested that he was not supportive of her appointment. The Tribunal rejects that evidence. Had Mr Rothnie not considered her suitable for the role, we have no doubt he would not have approved her appointment.[18]The Claimant was paid an additional £8733 per annum in respect of the DME role. The role was a fixed-term appointment for three years, subject to extension following review; it was described as a temporary role with an end date of 31 March 2018; it came with 1 PA responsibility payment (‘PA’ stands for Programmed Activity, which equates to 4 hours per week).[19]Although the Claimant initially had an Associate DME working with her, Dr Simpson, she resigned from the Trust towards the end of 2015. At the time Mr Rothnie did not support the Claimant's suggestion that the post of Associate should be advertised. The Claimant felt that this was a deliberate decision taken by him to disadvantage her. Mr Rothnie explained that he did not appoint an Associate because at the time there was no separate funding for the post, and we accept that evidence. However, he planned to put an Associate in place in due course. He later did so, in circumstances which we set out below. Complaints by Trainees in Medicine[20]Soon after taking up the post of DME the Claimant started to receive reports that some trainees in Medicine were raising concerns about the way that they were treated by Consultants. She understood that they were reporting these matters directly to the School of Medicine and the General Medical Council (‘GMC’), rather than raising them internally.[21]There was an issue before us as to whether these complaints included complaints of race discrimination. In her witness statement the Claimant referred at several points to complaints by trainees of ‘undermining and discrimination’ by Consultants.[22]It was not disputed that the trainees had raised complaints of bullying/harassment, and ‘undermining behaviour’ by Consultants; however, we were not referred to any contemporaneous evidence which suggested that these included complaints of discrimination. In an email of 3 August 2016, the Claimant raised concerns about two particular trainees; there is no mention of race in that email. In response to a question from the Tribunal, the Claimant said that trainees ‘did not talk to me about racial discrimination’. When she attended an investigatory meeting related to these allegations in November 2016 (which we refer to below) she was asked by the investigator whether there was ‘a theme to the concerns’. In her reply she referred only to ‘undermining behaviour’ and ‘bullying and harassment’, not to discrimination or to race.[23]In the course of cross-examination, the Claimant made assertions about the meaning of the term ‘undermining’. At one point she stated that ‘undermining’ was a coded word for race discrimination, but that this might only be understood by nonwhite people. However, in response to questions from the Tribunal she said that undermining was something distinct from discrimination, a separate and subtler thing. The Tribunal notes that in December 2015 the Claimant herself produced a draft proposal on ‘Issues with Undermining in the Trust’. In that draft she made the point that the Respondent already had a policy about discrimination (its 'Staff Dignity and Respect Policy') but that it 'does not cover undermining'. At no point in that document does the Claimant make a link between undermining and race discrimination.[24]In the light of the Claimant's own, somewhat inconsistent, evidence and the views stated in her own draft proposal, the Tribunal finds that undermining was not used by the Claimant or others as a code word for race discrimination, nor was it used interchangeably with it.[25]We find that the trainees did not make complaints of race discrimination. The fact that the Claimant was prepared to say in her statement that they did, but in oral evidence accepted that they did not, cast doubt on the credibility of her evidence on the issue of whether other alleged complaints of discrimination were made, by her or by others. The Claimant’s Illness in 2015[26]Shortly after assuming the role of DME, in late May 2015, the Claimant was diagnosed with breast cancer. On 26 May 2015 she underwent surgery; that surgery was performed by Mr Rothnie. She was off sick for two weeks immediately afterwards, but returned to work on 11 June 2015. She then underwent radiotherapy but continued to work through most of the following period, until the side-effects caused her to take a further period of sickness absence. She returned to work full-time on 8 September 2015. 'Dr K'[27]In June 2016, a complaint was made about a female Asian Consultant - who was not a witness before us and whom we will refer to as ‘Dr K’ - by one of her colleagues, criticising her manner in interacting with others.[28]On 20 July 2016, the School of Medicine had a visit from Health Education England (‘HEE’) and the GMC to assess the training standards in the Directorate of Medicine.[29]Shortly before the meeting Dr K approached the Claimant and complained that she had been bullied and undermined by three Consultant colleagues (two of whom were white, one of whom was BAME). The Claimant advised Dr K to raise her concerns under the Respondent’s policy. The Claimant met Dr K again on 21 July 2016; Dr K said that she did not feel able to make a formal written complaint of bullying and harassment as she was fearful of the consequences.[30]We find that Dr K did not mention race discrimination in either of these two interactions with the Claimant. That is consistent with the Claimant’s later email of 5 August 2016 in which she records only that Dr K had ‘mentioned herself being undermined by’ three colleagues. Protected Act 1: ‘on or about 21 July 2016, the Claimant told the Medical Director, Neil Rothnie And the Chief Operating Officer, Jon Findlay of the complaints received from the School of Medicine about general undermining of trainee doctors by Consultants which the Claimant understood to be race related and demanded that the complaints be investigated’.[31]The Claimant was given confidential feedback about the trainees’ complaints by the Head of School of Medicine and the Postgraduate Dean; she was told the identities of four Consultants against whom the complaints were made. A follow-up visit was scheduled for November 2016. In her witness statement the Claimant again characterised these complaints as being in part race-related; we have already found that they were not.[32]On 21 July 2016, the Claimant sent an email to Mr Rothnie and Mr Findlay, which she contends was the first of her protected acts under the victimisation legislation. It contains the names of the four individuals who she said were the subject of complaints of allegations of 'bullying and harassment’ and ‘nurturing an environment of undermining, bullying and harassment’. There is no mention of race, or of discrimination, in that email. Although in the list of issues it is alleged that she 'demanded that the complaints be investigated', the email contains no such demand and that assertion is not pursued in her witness statement. Issue 3(A): on 21 July [2016] Jon Findlay the Respondent’s Chief Operating Officer informed the Claimant that the two white Consultants would not be investigated (direct race discrimination).[33]The Claimant discussed the email with Mr Findlay on 22 July 2016. He later sent her an email about the same matter (the names of the Consultants against whom allegations were made are omitted): ‘I have spoken to Ian Barton today and although concerns were raised about the four individuals, he thinks that in the final report they will say that two individuals [names omitted] were named by both junior and senior medical staff as displaying bullying and undermining behaviour to the extent that it could potentially impact on patient care’.[34]The Claimant was unhappy that the email referred only to two Consultants, rather than four. We find that Mr Findlay was merely reporting to her what he had been told by HEE; his email was about what he understood HEE was proposing to do, not what he was proposing to do. The Claimant accepted in cross-examination that Mr Findlay had not told her that he had sought, or would seek, to influence the decision in order to exclude two Consultants; there is no evidence that he had done so.[35]Mr Ojo made no reference to this allegation in his closing submissions. We note Mr Gil’s submission that HEE is not a party to proceedings and that, even if HEE had narrowed the scope of its investigation (which it later emerged it had not) the Respondent would not be vicariously liable for its decisions. In any event, we find that there was no detriment to the Claimant personally in relation to this incident: she suffered no disadvantage as a result of this email. Issue 3(B): ‘the Claimant requested that Mr Neil Rothnie should in his capacity as the Medical Director talk to Dr K and ensure that the matter including the previous complaint is properly investigated. This request was dismissed by Mr Neil Rothnie (direct discrimination).[36]On 4 August 2016, Mr Rothnie asked the Claimant to provide further details of her conversation with the School of Medicine. She did so in an email of 5 August 2016. In that email she also relayed the conversation she had had with Dr K, referred to briefly above. The references to Dr K in that email are as follows: 'Dr Barton said that Dr K has spoken in confidence to him and has indicated that she has been a victim of bullying and harassment both by [two Consultant colleagues]. He further added that in view [of] this she is actively looking for a new job elsewhere. … Also on the day of School of Medicine visit, just a few minutes prior to the initial meeting with the School of Medicine Dr K came to see me in the Education Centre. She mentioned about trainees complaining of being bullied by [two Consultants]. She said that trainees have complained that [one of them] has a demeaning attitude towards them and does embarrass them in front of others. She then mentioned herself being undermined by [three colleagues]. I was surprised by Dr K’s revelation of herself being undermined by her colleagues. She looked distressed and tearful. I sympathised with her and advised that if she feels strongly about the situation she should follow the Trust Policy on it.'[37]At no point in this email is there any reference to race discrimination, whether in relation to Dr K, or at all. Nor is there any request for Mr Rothnie to speak to Dr K and ensure that her concerns were being properly investigated. The Claimant maintained that she had been hampered in writing this email by being asked to provide it at short notice. We reject that contention: it is a lengthy email, which is clearly the product of some thought; even if there was pressure of time on her, there is no indication that it led her to omit material information.[38]We accept Mr Rothnie’s evidence that he had been separately made aware of Dr K’s concerns by Mr Mike Salter, Senior Consultant and Clinical Director for Surgery. Mr Salter told him that Dr K was reluctant to take things further; Mr Rothnie asked Mr Salter to ask Dr K whether she would be prepared to put her concerns in writing or to speak with him to go through the issues. Mr Rothnie was told that Dr K did not want to take the matter further or pursue a formal grievance. That is consistent with what Dr K independently told the Claimant and Ms Maton (as set out below). Mr Rothnie was, however, involved in the commissioning of the larger report which we refer to below and which included consideration of Dr K’s allegations. There is no evidence that Mr Rothnie dismissed Dr K’s concerns.[39]We find that this incident did not occur as described. Mediation Involving Dr K[40]What did happen, however, was an attempt at mediation between Dr K and one of the Consultants, which was facilitated by Ms Maton. She held a meeting with the two colleagues on 19 July 2016, then spoke to them both individually by way of feedback and followed this up with letters in mid-August. In those letters Ms Maton set out with care, and in considerable detail, Dr K’s concerns; she also referred to concerns raised by the Consultant about Dr K. Her approach was even-handed and impartial. She proposed a number of alternatives to Dr K: a mediated session between herself and the Consultant; identifying a coach for her to provide support; and further contact with Occupational Health to identify supportive measures. Ms Maton was quite clear that Dr K did not wish to raise a formal grievance and we accept that evidence.[41]On 15 August 2016, Dr K informed Ms Maton at a meeting that she intended to resign. She explained that, although she felt bullied by the Consultant in question at work, she had a friendly relationship with him outside work. Ms Maton’s notes of that meeting record the following: ‘She said that [the Consultant] would be aware of her involvement and she could not forgive herself for making his time miserable … I tried to reason with her but was unsuccessful she was adamant she would do anything to not upset him and that resigning felt her only option … She said that sometimes he looked at her as if she was a worker on the plantation and that she was the slave and he was the master.’[42]In cross-examination, and to the Tribunal’s surprise, Ms Maton declined to accept that the last statement in her notes had a racial connotation. We find that it unarguably does; it indicates that Dr K did consider that race played a part in the Consultant’s treatment of her. This in turn is supportive of the Claimant’s evidence that Dr K expressed to the Claimant that she thought that race was a factor in the treatment and we find that she did. The question for us, however, is whether the Claimant then referred to race in advocating on Dr K’s behalf to other people. We consider that issue further below.[43]On 15 August 2016, Dr K submitted her resignation. Ms Maton suggested that she consider taking a period of sabbatical leave instead; Dr K gave some thought to this but ultimately decided not to do so.[44]Dr K met the Claimant on 21 October 2016. The Claimant’s evidence was that Dr K said that she did not think there was any point in raising a grievance. She suggested that the Respondent was planting patient safety concerns against her. The Claimant says that Dr K made allegations of racism against Mr Rothnie, but that Dr K declined to go on the record in respect of these matters. We heard no direct evidence from Dr K about these matters and we decline to make any findings to that effect. The only evidence is second-hand evidence from the Claimant and, in view of the unreliability of her evidence as to the making of allegations of discrimination, which we have noted above, we do not find that evidence to be convincing. The Investigation into the Trainees’ Complaints[45]On 20 October 2016, an external investigator, Mr Nigel Youngman, was appointed to look into the trainees’ complaints, with terms of reference to investigate undermining by Consultants. The investigation covered allegations against all four of the Consultants (including the two whom the Claimant alleged were going to be improperly omitted) and also allegations made by Dr K against the two Consultants who she considered had bullied and harassed her. The eventual report, completed in January 2017, was lengthy and detailed. It upheld complaints about two specific incidents but concluded that there was no evidence that the Consultants were contributing to a culture which did not promote dignity and respect.[46]There is no reference to allegations of race discrimination in the report. On 10 November 2016 the Claimant had attended an interview with Mr Youngman. There is no record of any mention by her of race in the notes of that meeting, nor any complaint about the ambit of the investigation. Protected Act 2: ‘on or after 21 October 2016 and following the Claimant’s meeting with [Dr K], the Claimant met with the Respondent’s medical director, Mr Neil Rothnie, during which she raised the issue of the treatment of [Dr K] with him’.[47]In her witness statement the Claimant stated that these conversations with Mr Rothnie took place on two occasions: one when they were walking from the education centre toward the main hospital building in October 2016; the other during a one-toone meeting in a Trust meeting room in November 2016. She alleges that on both occasions Mr Rothnie dismissed her request to investigate Dr K’s concerns.[48]In the course of re-examination, the Claimant was asked exactly what she told Mr Rothnie. She replied that she told Mr Rothnie that Dr K had told her that she was being bullied and thought that this was because of the colour of her skin.[49]However, the Claimant went further and stated that Dr K said she was being treated ‘like a slave in her department’. We do not find this part of her evidence at all credible. If Dr K had used that very powerful language to the Claimant, as she had done to Ms Maton, we have no doubt that the Claimant would have included it in her witness statement. She did not. The Claimant accepted that she had not seen the notes of this meeting, which contain the reference to this language, until they were disclosed in the course of these proceedings. We consider it more likely that this was when she first learnt that Dr K had used it. Consequently, we find that she could not have quoted this language to Mr Rothnie when she spoke to him in October 2016.[50]We then went on to consider the likelihood of the Claimant raising issues of race on Dr K’s behalf at all. The Claimant refers in her statement to a comment which Dr K made in the conversation with her on 21 October 2016 that ‘she feels she is treated like this because of her race and because she is a woman but if she talked about this in the Trust, her career will be completely ruined’. The Claimant goes on to record that she asked Dr K if she would repeat what she had said on the record: ‘she said no! She stated that if she did, she feared that she will have difficulties in substantiating or proving the allegations and things will only get worse for her as the perpetrators would further collude to prevent her from getting a job elsewhere especially that they had the support of the Medical Director’.[51]We accept that Dr K may have expressed herself in that way to the Claimant. However, given the Claimant’s account of how forcefully Dr K had expressed her wish not to make a formal allegation of any sort, including of race discrimination, and that she feared the consequences if she did, we find it implausible that the Claimant would have overridden those wishes and raised an allegation of race discrimination to Mr Rothnie on Dr K’s behalf.[52]We find that the Claimant did not make an allegation of race discrimination on Dr K’s behalf to Mr Rothnie during their conversations in October or November 2016. Issue 3(C): ‘at the meeting on or after 21 October 2016 between the Claimant and the Medical Director, he advised the Claimant that there were some patient safety issues against Dr K (harassment/victimisation).[53]According to the Claimant on one of these occasions Mr Rothnie told her that Dr K ‘has her own problems and is leaving because she had some patient safety issues’. Mr Rothnie denies making such a statement or even being aware of any patient safety issues in relation to Dr K. There is no note of Mr Rothnie making a remark of this sort. On this issue at least, we have found his evidence to be more reliable than that of the Claimant and we find that he did not do so. Issue 3(D): ‘in the period from October 2016 to February 2017 the Claimant was given additional tasks over and above that which she would usually be given’ (direct discrimination/harassment/victimisation/constructive dismissal). (i): ‘to prioritise patients on postcode rather than clinical needs’. (ii): to undertake off-site clinics. (iii): an expectation to cover nurses’clinic when nurses are unplanned annual leave. (iv): to undertake contraceptive clinics which are normally run by GPs.[54]It is the Claimant’s case that, in or around mid-November 2016, she began to get what she describes as ‘peculiar directives from the Associate Director, Traci Maton.[55]The Claimant’s evidence in her statement as to these instructions is scant: she gives no specific dates on which she was instructed to act in the way described; she refers to no specific documents containing those instructions. Her evidence is of the most general kind only.[56]With regard to the allegation that Traci Maton instructed her to prioritise patients on a postcode basis, rather than by reference to their clinical needs, Ms Maton was taken in cross-examination to an email of 22 March 2017: it was put to her that she was suggesting in that email the patient should be dealt with by reference to their postcode. Ms Maton responded that she was suggesting that Dr Jaleel should concentrate on patients where the Respondent had secured a contract. We find, on the balance of probabilities, that she asked the Claimant to prioritise patients on a postcode basis and that she did so in order to ensure that the Respondent discharged its contractual obligations. It was not suggested to Ms Maton in cross-examination, nor argued in closing submissions, that that there was anything improper in this and we do not find that there was.[57]With regard to the allegation in respect of the three other matters, Traci Maton accepted that the Claimant was asked to do this work. We accept Ms Maton’s evidence that the provision of these services was in a transitional state: the long-term aim was to move to a service provided in part by Consultants and no longer by sessional GPs, which would be a cost saving to the Respondent. However, there had been a delay in implementing that transition. While it was not strictly within the Claimant’s job description to deliver the services herself, she was one of the individuals who was responsible for delivering the transition: she was the clinical lead in this area. The Respondent was contractually required to deliver the services (as a result of its tender) and, if it failed to do so, it might be fined. We accept Ms Maton’s evidence that she was asking the Claimant for assistance in an attempt to ensure that the services were delivered. That was her motive for acting as she did.[58]The Claimant raised these matters in her grievance and, in her report the investigating officer, Claire Burns concluded as follows: ‘The investigation found that there was a lack of understanding of Sexual Health Consultant job planning, and that managing a Sexual Health Consultant job plan in the same way as a physician’s job plan is not appropriate. The actions taken by [Ms Maton] were in line with the expectations for a physician, however there was not an understanding for the joint working for HIV at Barts, and the need to be available for patients in the clinic but not with a full clinic load. The service has since moved from Medicine to Women’s and Children’s Directorate… You [the Claimant] confirmed at your investigation meeting that you are happy with the new arrangements. … Based on the information available to me I am partially upholding your grievance on this issue. It does not appear that there was any malice in [Ms Maton’s] approach (especially when considering that there was a drive on job planning across the trust at the time), however there does appear to have been a lack of understanding on the uniqueness of Sexual Health Consultant job planning, which, had you been able to meet as requested, may have been resolved quickly and amicably.’[59]We accept that Ms Maton acted as she did because of lack of experience and understanding; that is consistent with the Claimant’s evidence in her statement that, when she discussed these issues with Dr Day ‘he agreed that there is some recent confusion in Traci Maton’s understanding of sexual health working and that he had explained this to her recently’. We further accept that Ms Maton acted with the aim of ensuring service delivery. We reject the Claimant’s later assertion, made in the course of cross-examination, that Ms Maton’s actions were wilful and targeted at her; there is no evidence to substantiate that.[60]Although Ms Maton’s motive for acting as she did is understandable, nonetheless she was asking the Claimant to do work which was outside the remit of her job and this put additional pressure on the Claimant, who already had a demanding role. It was sufficiently adverse treatment to cause the Claimant to raise a grievance, which was partially upheld. The suggestions that the Claimant stand down from the DME role[61]The Claimant stated that, at a regular one-to-one meeting in November 2016, Ms Maton suggested that, if the Claimant was feeling under pressure, she might wish to step down from the position of DME and that there may be someone ready to take up the post in her place. Ms Maton accepted in cross-examination that she may have suggested this. We find that she did.[62]On 6 February 2017, the Claimant had a meeting with Professor Kinnear. She told him about the suggestion that she might wish to stand out from the DME role and the pressure she felt she was under. Professor Kinnear replied: ‘well Lucy [Coward] should be ready by now if you want to give up’.[63]The Claimant took these conversations as an indicator that there was a wish to replace her in the DME role with Dr Coward. The fact that these observations had been made also fuelled her later mistrust of the process which the Respondent initiated in 2018 to re-advertise the DME role. Issue 3(E): ‘on 24 March 2017, Dr Caroline Howard declined to sign the Claimant’s half day professional leave for a regional meeting as Director of Medical Education. The Claimant contends that the refusal to approve the half day leave was intended to frustrate the Claimant for her position in regard to Dr K’s racial discrimination allegation complaint’ (victimisation/harassment/constructive dismissal).[64]In February 2017, Dr Caroline Howard was appointed as interim Clinical Director Medicine, succeeding Dr Day. The Claimant reported to her and she became the person who signed off the Claimant’s job plan.[65]We note that, by the time Dr Howard took up her post, Dr K had already resigned. We accept Dr Howard’s evidence that she knew nothing about the issues which had been raised by or about Dr K.[66]When Dr Howard took up her post she discovered that there were issues with record-keeping throughout Medicine: everything (clinical records, governance issues, incident investigations, leave requests and sickness records) required attention.[67]On 23 March 2017, the Claimant (through Ms Sue Wilkinson, Foundation Programme Coordinator) asked Dr Howard to sign off a request for half a day’s professional leave to attend the Director of Education Managers’ joint meeting on 11 April 2017.[68]On 24 March 2017, Dr Howard replied as follows: ‘I have had issues with the Consultant cover of off-site clinics raised to me by Traci Maton as AD – until I can understand if this leave request will further impact on this, and also check other cover within the specialty, I’m afraid I cannot sign this off Henna. I am happy to discuss if required but I understand at present you and your colleague’s leave requests have had clinical patient impact so this has to be considered prior to me signing any further requests off.’[69]The Claimant accepted in cross-examination that she had cancelled a clinic in in order to attend the proposed meeting. She further accepted that, from Dr Howard’s perspective, she was asking for leave some two and half weeks’ before taking it, which was shorter than the required notice. She agreed that it was proper for Dr Howard to wish to investigate possible clinical impact.[70]We find that there was nothing inappropriate about Dr Howard’s email: she was raising a query in the context of a legitimate general concern she had; she was not definitively refusing the request, rather she was asking for clarification as to what impact it might have on service delivery; moreover, she was offering to have a discussion with the Claimant about the issue. We accept Dr Howard’s evidence that this was only one of a series of similar emails which she wrote to a number of Consultants, some of whom were white and male, because of wider concerns that she had in relation to leave conflicting with service delivery. Issue 3(G): ‘on or about 27 March 2017, Dr Howard emailed the Claimant and confirmed that the Claimant can only attend the regional meeting a study leave provided that the Claimant agrees to pay back the costs of covering her clinic’. (Victimisation/harassment/constructive dismissal). Issue 3(D)(v): paying back the clinical time while on planned leave. (direct discrimination/harassment/victimisation/constructive dismissal).[71]On 27 March 2017, the Claimant replied to Dr Howard stating that she wanted to discuss the matter urgently and suggesting a time. Dr Howard replied, explaining that she could not meet at that time but proposing an alternative. On 27 March 2017 the Claimant wrote to Mr Rothnie complaining about Dr Howard’s decision, copying Dr Howard in.[72]Later the same afternoon Dr Howard replied, copying Mr Rothnie in, taking issue with part of the Claimant account. She said again that she had not declined the request and proposed a meeting with the Claimant. The email included the following passages [original format retained]: ‘as far as I understand it additional paid roles should not result in lost clinical time – the time should be paid back (as often I appreciate that the commitment will fall in clinical hours). … To that end Traci will schedule a meeting with you and I to go through your and your colleague’s job plans to ensure there is absolute transparency and clarity of what you are contracted and paid to do. This will also allow us to make an assessment of capacity for the service which is a process we are completing for all specialties. If you could clarify Henna what you would actually be contracted to be doing on 11 April (half or whole day) from a service provision then we can see what is possible from both a notice point of view and clinical payback time if needed.’[73]The Tribunal notes that Dr Howard referred to pay back time ‘if needed’. We find that this left open the possibility of the Claimant not being required to pay the time back, depending on the outcome of their further discussions at the proposed meeting.[74]Later the same day the Claimant replied to Dr Howard, copying Mr Rothnie in. She explained that the clinic had been cancelled more than six weeks earlier and asserted that she now believed (based on what other DMEs had told her) that, in fact, there was no requirement for her to seek Dr Howard’s approval for the leave. As for paying back time she wrote: ‘if you will ask me to pay the clinical time back, I would like the assurance/evidence that all Consultants across the trust are paying back the clinical time for deanery/regional/other NHS work, otherwise it could be seen as punitive/discriminatory to me.’[75]On 29 March 2017, Dr Howard emailed the Claimant, offering to meet with her and Mr Rothnie her to discuss the matter. She assured the Claimant that she herself paid back clinical time which she used in her other roles. She finished by saying that, because she was about to go on leave herself, she could not meet the Claimant before 11 April 2017. As a gesture of goodwill, she agreed that the Claimant could take the requested leave as long as the clinical time was paid back at a later date.[76]Unfortunately, the planned meeting did not take place because other events intervened, as will be described below. Issue 3(F): ‘on [28] March 2017, the Claimant complained to the Respondent’s Medical Director, Mr Neil Rothnie, about her treatment by Dr Howard and her refusal to approve her attendance at the regional meeting but Neil Rothnie instead supported Dr Howard.’ (Victimisation/harassment/constructive dismissal).[77]On 28 March 2017, Mr Rothnie intervened in the sequence of communications between the Claimant and Dr Howard to provide his observations: ‘We need some clarity around this and I am happy to meet and discuss. … I am not clear whether you took on the PAs for your DME role in addition to your allocated PAs or whether they were substituted for clinical PAs. It would be sensible to design your job plans so that any regular DME commitments are included and, wherever possible, do not clash with clinical activity. Your job plan should include the sessions for DME work and a review is appropriate. … Happy to discuss further but we do need clarity.’ Issue 3(H): ‘on 4 May 2017 Dr Lucy Coward was appointed the Director of Medical Education, while the Claimant was still in post without any advertisement and due process and without any warning to the Claimant that she is being replaced and even when the post was not vacant.’ (Direct discrimination / harassment /victimisation/constructive dismissal).[78]On 28 March 2017, the Claimant collapsed while at work. She suffered a head injury and was taken to A&E, where she was admitted and treated for a suspected stroke. She was later diagnosed with work-related stress. On 31 March 2017 the Claimant’s GP signed her off until 13 April 2017.[79]On 20 April 2017, Mr Rothnie learnt from OH that the Claimant would be away for at least two months. On 2 May 2017 the Claimant was invited to a sickness absence meeting but the next day OH wrote that the Claimant was not fit to attend such a meeting and specified that any communication should only be in writing. There is a psychiatric report from around this time, which summarises the reasons for her work-related stress. There is no reference to race discrimination in that document.[80]The Tribunal accepted Mr Rothnie’s evidence that the Respondent needed someone to take responsibility for Medical Education on a day-to-day basis during the Claimant’s absence, especially in circumstances when it was unclear when she would be returning. There was a requirement to attend meetings, to prepare for HEE visits and to deal with practical matters such as signing cheques etc. This led to the appointment of Dr Lucy Coward as Associate DME.[81]However, we found the timing of that appointment somewhat surprising: it was made on 1 April 2017, only three days after the Claimant started her sick leave and the day after the GP fit note on 31 March 2017, which signed her off for a relatively short period. Mr Rothnie’s evidence was that the Respondent had been seeking to identify funding for some time and that this became all the more urgent in her absence.[82]The Claimant’s pleaded allegation is that Dr Coward had been appointed as Director of Medical Education in her absence. That was incorrect: Dr Coward had been appointed Associate Director of Medical Education. The Claimant accepted that this was not her post; it was a different post. Dr Coward was subsequently made Interim DME when it became clear that the Claimant was going to be absent for some time. The Claimant remained in post and continued to be paid in respect of her DME duties throughout her period of sickness absence and beyond. She was not replaced; arrangements were simply made to cover the DME role. For those reason, this allegation must fail.[83]On 23 May 2017, the Respondent received further advice from OH confirming that contact with the Claimant should only be in writing. Further advice on 14 June 2017 was that ‘clinically she is not yet well enough to engage in discussions in relation to work’. OH proposed to review her in two months’ time at which point they anticipated that she would be able to engage with the Trust. On 14 July 2017 the advice was that ‘clinically it would be detrimental and delay her recovery if contact was made at this stage’. In the circumstances, we find that the Respondent cannot be criticised for not keeping the Claimant updated about arrangements made to cover her DME duties in her absence. Protected Act 3: ‘on 25 August 2017 the Claimant submitted a grievance in relation to various issues including how the Claimant had been treated following her complaint and demanded that the allegations of race discrimination by Dr K be investigated’.[84]Towards the end of her period of sickness absence, on 17 August 2017, the Claimant wrote to Mr Rothnie, explaining that she had been diagnosed with workrelated stress and indicated that she was now in a position to discuss with the organisation the causes of that stress. The short letter referred in general terms to a ‘lack of support’ from senior management in relation to both her substantive role and her role as DME. No further details were provided but the Claimant indicated that she would be pursuing those matters with support from the BMA.[85]By letter dated 24 August 2017, Mr Rothnie acknowledged her letter and correspondence from her BMA representative confirming that she wished her concerns to be addressed to the grievance policy. He invited her to set out the detail of her grievance.[86]The detailed grievance was dated 30 August 2017 (stamped as received by the Respondent’s HR department on 5 September 2017). The complaints were against Ms Maton and Dr Howard. Their main focus was Ms Maton’s requiring the Claimant to do work which did not fall within her role; and Dr Howard’s handling of her leave request in March.[87]There is no reference to discrimination in the grievance; there is no reference to the Claimant’s race being a factor in the matters complained of; there is no mention of the EqA; there is no mention of Dr K and no demand for an investigation. The Management of the Claimant's Grievance[88]Mr Rothnie was designated as case manager on the Claimant’s grievance. There was nothing improper in that: he was not the subject of a complaint at that stage.[89]On 14 September 2017, the Claimant informed the Respondent that she was ready to return to work and set out in an email how she proposed to manage a phased return to work. This was consistent with OH advice that she make her own proposals regarding arrangements for her return to work. On 19 September 2017 Mr James Currell was assigned as her line manager, since Dr Howard was one of the subjects of her grievance. This showed a due regard for an obvious potential conflict. Mr Currell agreed her proposed phased return.[90]The Claimant returned to work on 2 October 2017. She was offered the opportunity to resume the DME role but told Mr Currell that she would not be performing any DME duties until her grievance was resolved.[91]She had a meeting with Mr Rothnie on 16 October 2017, at which there was another discussion about whether the Claimant would resume her DME role. The Claimant gave no undertaking to do so, pending advice from the BMA. They discussed Dr Coward’s role and the Claimant asked Mr Rothnie whether Dr Coward would now step down. He replied that she would not, as she had been appointed to the Associate role, which was different from the Claimant’s. This reinforced the Claimant’s suspicion that it was Mr Rothnie’s long-term aim to replace her in the DME role. It is plain that she felt vulnerable in that role.[92]On 9 November 2017, the Claimant wrote to Ms Clare Panniker, the Respondent’s Chief Executive, drawing her attention to concerns which she felt had been dismissed and alluding to the treatment she had received from Ms Maton and Dr Howard. She said that she had brought these matters to the attention of Mr Rothnie but that no appropriate action had been taken. She concluded by stating that she felt that she was subjected to ‘an abuse of power which has violated my dignity and created an intimidating environment’. Although that language sets out part of the test for discriminatory harassment, there is no reference to race being a factor in the alleged treatment in that letter, nor is there any allegation that she had been replaced as DME by Dr Coward. In any event, the letter was not relied on by the Claimant as a protected act.[93]On 24 November 2017, the Claimant’s BMA representative made the first explicit complaints against Mr Rothnie on the Claimant’s behalf. They consisted of ten individual allegations: ‘a. My appointment as DME, which was undertaken through due diligence and process, was never announced by Mr Neil Rothnie, on behalf of the Trust. b. I was never given a written contract for my role as DME. c. I was never offered a RTW meeting, following my return after my breast cancer treatment to discuss my role as DME and how would I cope in my role as DME following my cancer treatment, radiotherapy and surgery. d. Mr Neil Rothnie did not facilitate my attendance at the Clinical Directors and Additional Directors meeting. e. The initiatives I undertook as DME were not recognised by Mr Rothnie. f. I was not supported by Mr Rothnie to attend regional meetings as DME. g. I provided Mr Rothnie with reports of undermining against named individuals. He did not provide me with any feedback, progress, or action taken on these reports. h. Mr Rothnie colluded with the Clinical Director Medicine and the Additional Director Medicine in undermining me. i. When I was off sick because of “work-related stress”, Dr Lucy Coward was appointed as Associate Director of Medical Education without any advertisement or selection process. Her appointment was announced by Mr Rothnie. j. On my return after six months of sick leave because of “work-related stress”, I was not assigned an interim CD as line manager in place of Dr Caroline Howard.’[94]As will be apparent, there was no allegation of race discrimination in that email.[95]Shortly thereafter, Mr Rothnie was removed as the case manager on the Claimant’s grievance and replaced by Mr James Fisher. Again, that decision showed a due regard to the potential for a conflict of interest. Issue 3(H)(ii)): ‘the decision to readvertise the Claimant’s DME role on 31 January 2018’ (direct race discrimination).[96]On 23 January 2018, Mr Rothnie wrote to the Claimant informing her that the DME post was to be advertised as her tenure would end on 31 March 2018. He wrote: ‘I am writing to inform you that the Trust will be advertising the post shortly to ensure the post is filled from 1 April 2018. I would usually arrange to meet with you to review your performance for the year however I understand that you have not returned to the Director of Medical Education role since her return to work and feel this wouldn’t be appropriate with your outstanding grievance. I would therefore like to take this opportunity to thank you for the work you have done since you were appointed to the post of Director of Medical Education in April 2015 and would welcome an application from you should you wish to reapply for the post.’[97]The Tribunal notes Mr Rothnie’s observation that it would not be appropriate for him to review the Claimant’s performance in the DME role, given that she had an outstanding grievance which included allegations about his management of the DME role. The Tribunal understands why he might have considered it inappropriate for him to conduct that review; it was less clear why it would not have been possible for another senior manager to conduct the review on the Respondent’s behalf.[98]The post was advertised on 31 January 2018. The Claimant was extremely unhappy with the decision to do so. She considered that it was further evidence of a plan by Mr Rothnie to replace her with Dr Coward. She was particularly struck by the fact that Dr Coward had been appointed as Associate while she was on sick leave and in circumstances where Mr Rothnie had previously insisted that there was no funding for an Associate to support her.[99]Nonetheless, albeit reluctantly, she applied for the role; she had been expressly invited to do so by Mr Rothnie himself. The closing date for applications for the DME post was 19 February 2018. The Claimant was invited to an interview on 16 April 2018. The Elaboration of the Claimant’s Grievance[100]On 5 February 2018, Mr Fisher wrote, summarising the grievance: there is no mention of race, nor any mention of Dr K.[101]The Claimant produced a statement for the grievance on 12th February 2018. That document did contain references to her being ‘treated differently’ and mentioned the Equality Act 2010. However, even then the Claimant makes no express reference to race being a factor in the treatment she was complaining about. In any event, this document was not relied on by the Claimant as a protected act for the purposes of her victimisation claim, as Mr Ojo confirmed in the course of the hearing.[102]We accept Mr Rothnie’s evidence that he had not seen this detailed statement before the Claimant attended the interview for the DME post on 16 April 2018 and was not aware that she had made an allegation of differential treatment. There is nothing in the documents before us to suggest that it had been sent to him by that date. Issue 3(I): ‘on 7 March 2018, the Claimant was invited to attend an interview for the post of the Director of Medical Education on 16 April 2018. On the day of the interview and five minutes before it started, the Claimant was notified of the interview panel which included the Medical Director, Neil Rothnie, against whom the Claimant had an outstanding and unresolved grievance. The Claimant objected to Mr Rothnie sitting on the interview panel. The Claimant’s objection was ignored with the director of HR insisting that Mr Rothnie must sit on the panel’ (victimisation/harassment/constructive[103]When the Claimant arrived for her interview for the DME role, and shortly before the interview was about to begin, she was informed that Mr Rothnie was on the panel.[104]Mr Rothnie’s evidence in his statement was that there were two applicants for the role, the Claimant and Dr Coward, both of whom were shortlisted and invited to interview. He stated that no decision had been taken as to who would be appointed; that would be a panel decision.[105]Mr Rothnie accepted that at the point when the Claimant was invited for an interview he was aware that the Claimant had an outstanding grievance against him. He accepted that he had probably seen the email from the Claimant’s BMA representative of 24 November 2017, which set out the Claimant’s allegations against him, or at least had had its substance communicated to him. One of those allegations, of course, related to the appointment of Dr Coward (now the Claimant’s competitor for the substantive role of DME) as Associate DME the previous year.[106]His oral evidence was that the organisation of the interviews for the DME post was conducted by the Postgraduate Medical Education Department and that he was not party to it. He said that he had assumed the candidates would be aware who was going to be on the interview panel; he thought there was nothing inappropriate in his being on the panel.[107]The Tribunal considers that it ought to have been obvious to Mr Rothnie that it was profoundly inappropriate for him to sit on a selection panel in circumstances where one of the candidates had raised a grievance against him personally, which had yet to be resolved. It was all the more inappropriate in circumstances where the majority of the complaints in that grievance related to the very role being recruited for. The inappropriateness was compounded by the fact that one of those allegations expressly related to the only other candidate in the selection process, Dr Coward. There was an obvious conflict of interest.[108]We reject the Respondent’s suggestion that the Claimant ought to have known that Mr Rothnie would be on the panel. The only document referred to which supported this was the Job Description, which stated that the panel would include ‘Medical Director (or representative)’. On any ordinary reading that left open the possibility that Mr Rothnie could be replaced by someone else. There is no reference in the correspondence inviting the Claimant to the interview to Mr Rothnie’s being on the panel.[109]The Claimant made a contemporaneous note of the events of 16 April 2018. We find that her note is accurate and is consistent with her account elsewhere of the events of that day. When she arrived, she was met by Ms Parton, a manager in Medical Education. The Claimant asked her who was on the panel; Ms Parton said that the panel was composed of Mr Bill Irish (Postgraduate Dean), Ms Sue Bridge from HR and Mr Rothnie. The Claimant was shocked by this information.[110]She was shown into the interview room and was told that Mr Rothnie would be chairing the panel. He began to make his introductions, at which point the Claimant interrupted to say that in her view there was a clear conflict of interest because she had raised a grievance against him with regard to the very role for which she was being interviewed. Ms Bridge asked her how long she had known about the composition of the panel. The Claimant explained that she had only just discovered it.[111]The Claimant’s note records the following exchange [original format retained]: ‘Then I addressed to Neil and told him that I am surprised he is sitting in the panel. I am sorry. In a deep and low-pitched voice, leaning forward, Neil asked me, “OK, so you do not want to proceed?” I replied: No, because the panel is biased. I explained again that there is a conflict of interest as I have just mentioned. Neal asked again: “I will ask you again, do you want to proceed?” I said: No. Neal asked me again: “OK so you do not want to proceed”? I found this repeated question very intimidating and overwhelming. However, I replied again, “No, I do not want to proceed unless the panel is changed”. Neil replied, “OK we can’t change the panel at a short notice”.[112]Mr Rothnie was taken to this note by the Tribunal and asked for his comment. He denied that he had been intimidating; he stated that the phrases in quotation marks did not sound like him; he observed that the Claimant’s account as to what he said about the panel not changing ‘does not accord with my memory’.[113]The Tribunal finds, on the balance of probabilities, that Mr Rothnie did question the Claimant repeatedly, and in a challenging manner, as to whether she was refusing to continue with the interview if he remained on the panel.[114]The Claimant’s note then records that Ms Bridge asked her to step outside, while the panel discussed the position. She was kept waiting for around 10 minutes. Ms Bridge then emerged and informed her that the interview would not go ahead on that day, solely because the Claimant had not been forewarned of the presence of Mr Rothnie on the panel. However, as the DME would involve reporting to Mr Rothnie, he would remain on the panel when it reconvened but he would not be the sole decision maker as there would be a representative from HR and another person on the panel. Ms Bridge said that she would consider how they could give the Claimant reassurance about the fairness of the process and would revert to her about this.[115]Ms Bridge accepted in cross-examination that she told the Claimant that Mr Rothnie would remain on the panel, that it would be ‘normal practice’ for him to do so. Again, the Tribunal finds that that was wholly inappropriate in the circumstances. The Claimant had raised a legitimate (indeed obvious) conflict of interest. The only reasonable course of action was to reassure the Claimant that an alternative panel member would be found, as was clearly provided for by the job description referred to above.[116]According to the Claimant’s note, she then left the building. We accept her evidence and reject Ms Bridge’s account in her statement that she (Ms Bridge) went back into the room, agreed with the panel that Mr Rothnie would be replaced by Dr Celia Skinner, Chief Medical Officer, and then went out to inform the Claimant of this before the Claimant left. We consider it implausible that Ms Bridge would have committed to telling the Claimant that Dr Skinner would be on the panel without first consulting the latter as to her willingness, and availability, to do so. We note Mr Rothnie’s oral evidence that they did not have dates or availability to be able to reschedule on the day.[117]Moreover, the Claimant’s account is consistent with the account that she gave at the grievance investigation meeting on 20 April 2018 with Clare Burns, in which she said: ‘Sue Bridge (SB) stated that the interview would not proceed as HJ [the Claimant] was not notified of the panel in advance and hence would be rearranged. HJ would be advised of the new date. SB further advised HJ that NR has to remain on the panel as the line manager of the DME post. When HJ suggested NR could be deputised, SB did not comment on this but replied that she would come back to HJ as to how the bias could be mitigated. HJ said that she has not heard anything from SB to date’.[118]A decision was eventually taken to replace Mr Rothnie with Dr Skinner, but we find that it was taken at a later point and was not communicated to the Claimant on the day of the interview. We consider that the best evidence as to when that decision was communicated to her is the email of 10 May 2018, in which Ms Barton wrote to the Claimant inviting her to a new interview on 25 June 2018 and notifying her that the interview panel would consist of Dr Skinner, Prof Irish and Ms Bridge. By that point the Claimant had already resigned. Issue 3(J): ‘on 20 April 2018 the Claimant attended the grievance meeting whereby she amended her grievance to include further allegation of removing her from the post of the Director of Medical Education and advertising the same to allow a white candidate, Dr Lucy Coward, to take over the post. It was also amended to include the complaint relating to the failure of the Medical Director, Neil Rothnie, to recuse himself from sitting on the interview panel during the interview on 16 April 2018. The requests to amend her grievance were disregarded’ (victimisation/harassment/constructive[119]On 20 April 2018, the Claimant attended a grievance meeting with Ms Clare Burns, in which she raised additional matters relating to the handling of the DME appointment, including Mr Rothnie’s attendance at the interview. We accept Mr Gil’s submission that there is no suggestion in the notes at this meeting that these matters were disregarded; indeed, the grievance report addressed them as does the eventual outcome letter. For these reasons this claim fails. Issue 3(K): ‘on or about 4 May 2018 The Claimant was removed from her post as the Director of Medical Education and Dr Lucy Coward was appointed permanently as a consequence of her being an Asian supporting another Asian colleague and requesting that a complaint of racial abuse and discrimination against white colleagues be investigated (direct discrimination/harassment/victimisation/constructive dismissal).[120]On 1 May 2018, the Claimant resigned, giving three months’ notice. The letter of resignation simply says: ‘I would like to hand in my resignation. My contractual notice period is three months. Therefore, my last day of employment in the Trust would be 31 July 2018. Kindly acknowledge.’[121]Insofar as the Claimant asserts that Dr Coward was appointed to the DME role on 4 May 2018, it is a matter of record that she was not appointed until July 2018.[122]The effective date of termination of the Claimant’s employment was 31 July 2018. The Law Time Limits[123]S.123(1)(a) EqA provides that a claim of discrimination must be brought within three months, starting with the date of the act to which the complaint relates.[124]S.123(3)(a) EqA provides that conduct extending over a period is to be treated as done at the end of the period. The leading authority on this provision is Hendricks v Commissioner of Police of the Metropolis [2003] ICR 530, in which the Court of Appeal held that Tribunals should not take too literal an approach to determining whether there has been conduct extending over a period: the focus should be on the substance of the complaint that the employer was responsible for an ongoing situation or a continuing state of affairs in which an employee was treated in a discriminatory manner.[125]The Tribunal may extend the three-month limitation period for discrimination claims under s.123(1)(b) EqA where it considers it just and equitable to do so. That is a very broad discretion. In exercising that discretion, the Tribunal should have regard to all the relevant circumstances. They will usually include: the reason for the delay; whether the Claimant was aware of her rights to claim and/or of the time limits; whether she acted promptly when she became aware of her rights; the conduct of the employer; the length of the extension sought; the extent to which the cogency of the evidence has been affected by the delay; and the balance of prejudice (Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] ICR 1194).[126]Failure to provide a good excuse for the delay in bringing the relevant claim will not inevitably result in an extension of time being refused (Rathakrishnan v Pizza Express (Restaurants) Ltd [2016] IRLR 278 at para 16). There is no requirement for exceptional circumstances to justify an extension (Pathan v South London Islamic Centre, UKEAT/0312/13/DM at para 17). The Burden of Proof[127]The burden of proof provisions are contained in s.136(1)-(3) EqA:(1) This section applies to any proceedings relating to a contravention of this Act.(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.(3) But subsection (2) does not apply if A shows that A did not contravene the provision.[128]The effect of these provisions was conveniently summarised by Underhill LJ in Base Childrenswear Ltd v Otshudi [2019] EWCA Civ 1648 (at para 18): ’18. It is unnecessary that I reproduce here the entirety of the guidance given by Mummery LJ in Madarassy. He explained the two stages of the process required by the statute as follows:(1) At the first stage the Claimant must prove “a prima facie case”. That does not, as he says at para. 56 of his judgment (p. 878H), mean simply proving “facts from which the Tribunal could conclude that the Respondent 'could have' committed an unlawful act of discrimination”. As he continued (pp. 878-9): “56. … The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a Tribunal 'could conclude' that, on the balance of probabilities, the Respondent had committed an unlawful act of discrimination. 57. 'Could conclude' in section 63A(2) [of the Sex Discrimination Act 1975] must mean that 'a reasonable Tribunal could properly conclude' from all the evidence before it. …”(2) If the Claimant proves a prima facie case the burden shifts to the Respondent to prove that he has not committed an act of unlawful discrimination – para. 58 (p. 879D). As Mummery LJ continues: “He may prove this by an adequate non-discriminatory explanation of the treatment of the complainant. If he does not, the Tribunal must uphold the discrimination claim.” He goes on to explain that it is legitimate to take into account at the first stage all evidence which is potentially relevant to the complaint of discrimination, save only the absence of an adequate explanation.[129]In Hewage v Grampian Health Board [2012] ICR 1054 the Supreme Court held (at para 32) that the burden of proof provisions require careful attention where there is room for doubt as to the facts necessary to establish discrimination, but have nothing to offer where the Tribunal is in a position to make positive findings on the evidence one way or the other. Harassment Related to Race[130]Harassment related to race is defined by s.26 EqA, which provides, so far as relevant: (1) A person (A) harasses another (B) if- (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. … (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect. (5)The relevant protected characteristics are— … race … religion ...[131]The use of the wording ‘unwanted conduct related to a relevant protected characteristic’ was intended to ensure that the definition covered cases where the acts complained of were associated with the prescribed factor as well as those where they were caused by it. It is a broader test than that which applies in a claim of direct discrimination (Unite the Union v Nailard [2018] IRLR 730).[132]The test for whether conduct achieved the requisite degree of seriousness to amount to harassment was considered by the EAT in Richmond Pharmacology v Dhaliwal [2009] IRLR 336 (at para 22): ‘We accept that not every racially slanted adverse comment or conduct may constitute the violation of a person's dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers, and Tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase.’[133]Elias LJ in Land Registry v Grant [2011] ICR 1390 (at para 47) held that sufficient seriousness should be accorded to the terms ‘violation of dignity’ and ‘intimidating, hostile, degrading, humiliating or offensive environment’. ‘Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment.’[134]He further held (at para 13): ‘When assessing the effect of a remark, the context in which it is given is always highly material. Everyday experience tells us that a humorous remark between friends may have a very different effect than exactly the same words spoken vindictively by a hostile speaker. It is not importing intent into the concept of effect to say that intent will generally be relevant to assessing effect. It will also be relevant to deciding whether the response of the alleged victim is reasonable.’ The Relationship Between Harassment and Other Forms of Discrimination[135]S.212(1) EqA provides that the concept of ‘detriment’ does not include conduct that amounts to harassment. Thus, a Claimant cannot succeed in a claim of both harassment and direct discrimination in respect of the same conduct. Nor can a Claimant succeed in a claim of both harassment and victimisation in respect of the same conduct: a finding of victimisation under s.27 EqA necessarily involves a finding of detriment. However, there is nothing in the statutory language to prevent him from advancing claims in respect of the same conduct by reference to these causes of action in the alternative. Direct Discrimination[136]S.13(1) EqA provides: A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.[137]The conventional approach to considering whether there has been direct discrimination is a two-stage approach: considering first whether there has been less favourable treatment by reference to a real or hypothetical comparator; and secondly going on to consider whether that treatment is because of the protected characteristic, here race/religion.[138]More recently, the appellate courts have encouraged Tribunals to address both stages by considering a single question: the ‘reason why’ the employer did the act or acts alleged to be discriminatory. Was it on the prohibited ground or was it for some other reason? This approach does not require the construction of a hypothetical comparator: see, for example, the comments of Underhill J in Martin v Devonshires Solicitors [2011] ICR 352 at para 30.[139]In Reynolds v CLFIS (UK) Ltd [2015] ICR 1010, the Court of Appeal confirmed that a ‘composite approach’ to an allegation of discrimination is unacceptable in principle: the employee who did the act complained of must himself have been motivated by the protected characteristic (para 36).[140]It is an essential element of a direct discrimination claim that the less favourable treatment must give rise to a detriment (s.39(2)(d) EqA). There is a detriment if ‘a reasonable worker would or might take the view that [the treatment was] in all the circumstances to his detriment’: see per Lord Hope of Craighead in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 (at para 35). An unjustified sense of grievance does not fall into that category. Victimisation[141]S.27 EqA provides as follows:(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act. …[142]An employee must identify a specific protected act, or believed protected act, in order to fix the employer with liability, and must show that the employer knew about that specific act, and that the employer subjected her to a detriment because of it (Peninsula Business Services Ltd v Baker [2017] IRLR 394, EAT).[143]In Durrani v London Borough of Ealing UKEAT/0454/2013, Langstaff P was asked to consider was whether it is necessary to use the words ‘race discrimination’ in order for a complaint or grievance to amount to a protected act. He held that it was not, so long as the context made it clear and went on to say this: ‘[…] I would accept that it is not necessary that the complaint referred to race using that very word. But there must be something sufficient about the complaint to show that it is a complaint to which at least potentially the Act applies. As Mr Davies points out, the Tribunal found as a fact that the Claimant did not attribute any treatment (at the time) to the fact that he is British of Pakistani origin. That finding of fact alone means that there is no evidence that an employer, seeking to cause detriment to the Claimant as a result of making the complaint he did, could have been victimising him for a complaint made by reference to, under, or associated with the relevant Act.’ Unfair (constructive) Dismissal[144]The Claimant relies on a breach of the implied term of trust and confidence. Where an employer breaches the implied term of trust and confidence, the breach is inevitably fundamental: Morrow v Safeway Stores plc [2002] IRLR 9.[145]The law of constructive dismissal in a case where the employee relies on a cumulative breach was comprehensively reviewed by the Court of Appeal in London Borough of Waltham Forest v Omilaju [2005] IRLR 35 at para 14 onwards: 14. The following basic propositions of law can be derived from the authorities: 1. The test for constructive dismissal is whether the employer's actions or conduct amounted to a repudiatory breach of the contract of employment: Western Excavating (ECC) Ltd v Sharp [1978] 1 QB 761. 2. It is an implied term of any contract of employment that the employer shall not without reasonable and proper cause conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee: see, for example, Malik v Bank of Credit and Commerce International SA [1998] AC 20, 34H-35D (Lord Nicholls) and 45C-46E (Lord Steyn). I shall refer to this as "the implied term of trust and confidence". 3. Any breach of the implied term of trust and confidence will amount to a repudiation of the contract see, for example, per Browne-Wilkinson J in Woods v WM Car Services (Peterborough) Ltd [1981] ICR 666, 672A. The very essence of the breach of the implied term is that it is calculated or likely to destroy or seriously damage the relationship (emphasis added). 4. The test of whether there has been a breach of the implied term of trust and confidence is objective. As Lord Nicholls said in Malik at page 35C, the conduct relied on as constituting the breach must "impinge on the relationship in the sense that, looked at objectively, it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer" (emphasis added). 5. A relatively minor act may be sufficient to entitle the employee to resign and leave his employment if it is the last straw in a series of incidents. It is well put at para [480] in Harvey on Industrial Relations and Employment Law: "[480] Many of the constructive dismissal cases which arise from the undermining of trust and confidence will involve the employee leaving in response to a course of conduct carried on over a period of time. The particular incident which causes the employee to leave may in itself be insufficient to justify his taking that action, but when viewed against a background of such incidents it may be considered sufficient by the courts to warrant their treating the resignation as a constructive dismissal. It may be the 'last straw' which causes the employee to terminate a deteriorating relationship." 15. The last straw principle has been explained in a number of cases, perhaps most clearly in Lewis v Motorworld Garages Ltd [1986] ICR 157. Neill LJ said (p 167C) that the repudiatory conduct may consist of a series of acts or incidents, some of them perhaps quite trivial, which cumulatively amount to a repudiatory breach of the implied term of trust and confidence. Glidewell LJ said at p 169F: "(3) The breach of this implied obligation of trust and confidence may consist of a series of actions on the part of the employer which cumulatively amount to a breach of the term, though each individual incident may not do so. In particular in such a case the last action of the employer which leads to the employee leaving need not itself be a breach of contract; the question is, does the cumulative series of acts taken together amount to a breach of the implied term? (See Woods v W. M. Car Services (Peterborough) Ltd. [1981] ICR 666.) This is the "last straw" situation." 16. Although the final straw may be relatively insignificant, it must not be utterly trivial: the principle that the law is not concerned with very small things (more elegantly expressed in the maxim "de minimis non curat lex") is of general application.[146]Those principles were further considered by the Court of Appeal in Kaur v Leeds Teaching Hospitals NHS Trust [2018] EWCA Civ 978 at para 55: ‘(1) What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, his or her resignation? (2) Has he or she affirmed the contract since that act? (3) If not, was that act (or omission) by itself a repudiatory breach of contract? (4) If not, was it nevertheless a part (applying the approach explained in Omilaju) of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a (repudiatory) breach of the Malik term? (If it was, there is no need for any separate consideration of a possible previous affirmation, for the reason given at the end of para. 45 above.) (5) Did the employee resign in response (or partly in response) to that breach?’[147]In Sawar v SKF UK Ltd [2010] UKEAT 0355/09 Langstaff J emphasised that the particular context in which the treatment complained of as amounting to a breach of the implied term occurred is important in determining whether or not there has been a breach of that term.[148]In Bournemouth University Higher Education Corporation v Buckland [2010] ICR 908, CA the Court of Appeal held that, when considering whether a breach of the implied term or any other fundamental term has occurred, it is not appropriate to ask whether the employer’s actions lay within the band of reasonable responses available to an employer. That test is confined to considerations of fairness for the purposes of the statutory claim of unfair dismissal and is not apposite to determining whether there has been a constructive dismissal, which is a purely contractual test.[149]The employer's repudiatory breach need only be an effective cause of the resignation; it need not be the only, or even the predominant, cause: Nottinghamshire County Council v Meikle [2005] 1 ICR 1 (at para 29).[150]The employee must not delay his resignation too long, or do anything else which indicates affirmation of the contract: W.E. Cox Toner (International) Ltd. v Crook [1981] ICR 823 (at 828-829). Submissions[151]Both representatives provided written submissions, which the Tribunal took into consideration. They supplemented them with oral submissions. We have had regard to their respective submissions in making findings of fact above and reaching our conclusions below. We mean no disrespect to the representatives by not summarising their arguments in what is already a lengthy judgment. Conclusion: Victimisation[152]The Tribunal concludes that the Claimant did not do a protected act within the meaning of s.27 EqA. 152.1. Protected Act 1: we have already found (para 32) that the email of 21 July 2016 concerning the trainees’ complaints contained no mention of race or discrimination. We accept Mr Gil’s submission that a generalised reference to 'harassment', absent any suggestion that race was a factor in the alleged treatment, should not be taken as an allegation of harassment as it is defined in the EqA. We conclude that, in this context, it was being used simply to mean unwanted treatment, akin to bullying. We have already found that ‘undermining’ is not a coded reference to race discrimination. Moreover, the absence of any reference, explicit or implicit, to race as a factor in this email is consistent with the Claimant's oral evidence to us that the trainees did not, in fact, complain of race discrimination and she did not represent them as having done so on this occasion. We conclude that this was not a protected act. 152.2. Protected Act 2: we have already found (paras 47-52) that the Claimant did not make an allegation of race discrimination to Mr Rothnie on Dr K’s behalf in October or November 2016. There is no evidence to suggest that she raised issues of race at all with Mr Rothnie in relation to Dr K. We conclude that she did not do a protected act in those conversations with Mr Rothnie. 152.3. Protected Act 3: we have already found (para 86) that the grievance of 25 August 2017 did not contain an allegation of discrimination, or of a breach of the Equality Act 2010, nor did it contain references to Dr K. There was no reference to the Claimant’s own race, or that of Dr K, in this document. We conclude that the Claimant did not do a protected act.[153]In the absence of a protected act, the Claimant’s complaints of victimisation must fail. Conclusions: time limits in relation to the complaints of direct race discrimination and harassment related to race[154]The Claimant notified ACAS on 26 June 2018 of her intention to issue proceedings and the EC certificate was issued on 11 July 2018. The ET1 was presented on 30 July 2018. Any act before 27 March 2018 is prima facie out of time.[155]The question of time limits was not addressed by the Claimant specifically in her witness evidence, nor did Mr Ojo deal with it in his written submissions. It was only when he was invited to do so in response to oral submissions made by Mr Gil that he made essentially a single submission: he relied on the Claimant’s period of sickness in 2017 as justification for the delay and argued that it was not reasonable to expect her to issue during that period, especially given that her sickness absence related to her mental health.[156]Mr Gil argued that there was no evidence to suggest that the Claimant could not have issued proceedings in relation to the 2016/2017 matters earlier, even in the light of her sickness absence. He reminded us that the burden in respect of any extension of time rests on the Claimant and suggested that she had not placed any evidence before the Tribunal in support of such an argument. He submitted that only the more recent allegations from 2018 ought to be considered by the Tribunal. The 2016/2017 Allegations of Discrimination[157]All the allegations of discrimination in relation to 2016/2017 are long out of time.[158]No submission was made by Mr Ojo that her claims related to conduct extending over a period and we find that they were not. We conclude that there were breaks in the continuum (or the ‘state of affairs’ to use the language of Hendricks) between the different acts alleged; moreover, the decisions were taken by different individuals; there was no evidence that those individuals were acting other than independently of each other. There are no acts relied on in relation to Dr Coward and Ms Maton after the Claimant commenced sickness absence in March 2017. The allegations against Mr Rothnie prior to 2018 centre on his handling of the Claimant’s concerns about Dr K (who resigned in 2016), the trainee complaints (the report into which was completed in January 2017) and his intervention in the dispute between the Claimant and Dr Coward (also in 2017). We are not satisfied that there is any discernible connection between his handling of those matters and the conduct alleged against him in 2018.[159]We then considered whether it would be just and equitable to extend time in respect of the matters relating to the allegations in relation to 2016/2017. We had regard to the following factors. 159.1. The only explanation provided as to why the Claimant did not issue her proceedings sooner was because she had had a substantial period of sickness absence between March and September 2017. We accept that for the majority of that period at least it would not have been reasonable to expect the Claimant to take action. However, the position changed in around August 2017. At that point she was able to instigate internal grievance proceedings, with the advice and support of the BMA. She returned to work in September 2017 and there was no evidence before us that she was under any disadvantage by reason of her health thereafter. We conclude that from that point onwards the Claimant’s health cannot account for the delay. 159.2. Although it was not expressly argued on her behalf, we had regard to the fact that, from then on, she was pursuing her complaints by way of an internal grievance. That may be a factor, albeit not a determinative one, in favour of the Tribunal’s extending time. 159.3. We find that there is clear prejudice to the Respondent in terms of its ability to deal with these matters relating to 2017 comprehensively: by the time the Claimant issued proceedings in July 2018, the issues relating to 2017 were at least six months old and in many instances well over a year old. It was clear from the fallibility of some of the evidence on both sides that memories had faded in relation to these matters, in particular where there was no documentary record of the event in question. 159.4. Although the Claimant would suffer prejudice by not being able to pursue these matters, she is, for reasons set out below, still able to pursue complaints in relation to the events of 2018, as well as her complaint of unfair (constructive) dismissal. 159.5. We consider that the prejudice to the Respondent outweighs the prejudice to the Claimant.[160]Weighing all these factors in the balance, in particular our conclusions as to the absence of a convincing explanation for the delay in issuing proceedings and the balance of prejudice, we conclude that it is not just and equitable to extend time in relation to the claims about matters in 2016/2017.[161]Mr Gil sensibly took a more forgiving approach in his submissions in relation to the allegations from 2018. There is a strongly arguable connection between the decision to advertise the DME role in January 2018 and the later conduct of the interview in April 2018. We conclude that this did relate to conduct extending over a period and that the earlier allegation is thereby brought within time; alternatively, we find that it is just and equitable to extend time in relation to the January 2018 allegation. There is no identifiable prejudice to the Respondent in time being extended, whereas the Claimant would be significantly prejudiced by not being able to make arguments in respect of the whole recruitment process. Conclusion: the allegations of harassment related to race / direct race discrimination in 2018[162]Turning to the discrimination complaints in respect of which the Tribunal the Tribunal has accepted jurisdiction, a number of them fail on their facts. 162.1. Issue 3(J) - The events did not occur as alleged: Ms Burns did not disregard the matters which the Claimant raised at the grievance meeting with her. 162.2. Issue 3(K) - The events did not occur as alleged: the Claimant was not removed from her post as DME on 4 May 2018 and Dr Coward was not appointed in her place on that date. The Claimant could not be re-appointed to the advertised DME post because, by the time the interviews took place, she had withdrawn her candidacy.[163]The remaining allegations of race discrimination, in respect of which the Tribunal has accepted jurisdiction are as follows. 163.1. Issue 3(H)(ii), direct race discrimination - The decision to re-advertise the Claimant’s DME role on 31 January 2018. 163.2. Issue 3(I), harassment related to race - The conduct of the interview on 16 April 2018. Is there evidence from which the Tribunal could reasonably conclude that the treatment was because of/related to race?[164]With regard to the re-advertising of the DME, the Claimant can plainly point to a difference of treatment and a difference of race as between her and Professor Kinnear: he held the role for some nine years without the role being re-advertised; he is white. Arguably, there was a significant difference in the material circumstances between the two of them: Professor Kinnear continued to perform the role throughout the whole of his tenure, whereas the Claimant had declined to do so since her return from sickness absence. However, we will set that aside for the time being.[165]As for the conduct of the interview on 16 April 2018, the Tribunal has no doubt that the presence of Mr Rothnie on the panel, his behaviour when the Claimant questioned it, his refusal to recuse himself and Ms Bridge’s handling of the Claimant’s objection were all ‘unwanted conduct’: we accept the Claimant’s evidence that she was shocked by these events. As this allegation was advanced as a claim of harassment related to race, there was no requirement on her to point to an actual or hypothetical comparator.[166]The Tribunal went on to consider whether the Claimant had discharged the burden on her to show evidence from which the Tribunal could reasonably conclude that the decision to re-advertise the role was ‘because of’ race; and that Mr Rothnie’s decision not to recuse himself from the interview panel was ‘related to’ race.[167]The only evidence which the Claimant led in her statement was her account of conversations she had had with other BAME colleagues who considered was that there was a culture of race discrimination in the organisation and, specifically, that race might be a factor in Mr Rothnie’s treatment of her and other colleagues. That was opinion evidence which, by its nature is of very limited probative value. Moreover, it was hearsay opinion evidence: we heard no direct evidence from the individuals concerned. We concluded that this evidence was not sufficient to discharge the burden on the Claimant to provide evidence from which we could reasonably conclude that her race played any part in the treatment complained of.[168]As for Mr Ojo’s further submissions (at paragraph 26 of his closing submission), far from pointing us to ‘overwhelming evidence’ that race played a part in the treatment of the Claimant, they did not begin to raise a prima facie case of race discrimination. In the Tribunal’s view they fell into the trap of assuming that pointing to less favourable, or adverse, treatment and a difference of race is in itself sufficient to discharge the burden, which the authorities are clear it is not. We could discern nothing in those submissions which was sufficient to provide the ‘something more’ from which we could reasonably conclude that race was a factor in respect of the two surviving complaints of race discrimination.[169]Those two claims accordingly fail because the Claimant has not discharged the initial burden on her to show that race was a factor in the alleged treatment. Conclusion: Constructive Dismissal Matters Which Formed No Part of a Breach of the Implied Term[170]The Tribunal has rejected a number of the matters which the Claimant relies on as elements of the alleged breach of the implied term of trust and confidence, either because we have found as a matter of fact that they did not occur; alternatively, if they did occur there was reasonable and proper cause for them. 170.1. Issue 3(E), 3(D) and 3(G): there was nothing improper in Dr Howard’s emails in relation to the issue of the Claimant’s request to take leave to attend a regional meeting of DMEs. Throughout the correspondence Dr Howard acted appropriately and professionally: she raised legitimate concerns about ensuring that non-clinical activities did not impact on the delivery of clinical services; her emails were robust but not discourteous; she acted flexibly in agreeing to the leave before she was able properly to explore the issues with the Claimant. The Claimant disagreed with Dr Howard’s approach, as she was entitled to do. Had the Claimant and Dr Howard been able to have the face-to-face discussion which they both intended to have, the Tribunal considers it likely that they would have been able to resolve these issues between them. The Tribunal concludes that Dr Howard had reasonable and proper cause for responding to the Claimant as she did. 170.2. Issue 3(F): as for Mr Rothnie’s intervention in his email of 26 March 2017, we find that this was a measured and reasonable response. It raised legitimate issues and left their resolution for future discussion without expressing a definitive view either way. He did not ‘support’ Dr Howard except insofar as he agreed with the need for further clarity. The Tribunal finds that the incident did not occur as alleged. There was nothing improper in Mr Rothnie’s intervention, which was helpful and conciliatory; he had reasonable and proper cause for acting as he did. 170.3. Issue 3(H): as we have already found, this did not occur as alleged; Dr Coward was not appointed DME while the Claimant was still in post. 170.4. Issue 3(J): we have already found that this did not occur. 170.5. Issue 3(K): we have already found that this did not occur. Moreover, the appointment of Dr Coward to the role of DME post-dated the Claimant’s resignation and cannot have played any part in it. Matters Which Contributed to a Breach of the Implied Term[171]There are two remaining matters relied on by the Claimant in respect of her constructive dismissal claim, which remain to be considered in the context of her contention that there was a breach of the implied term of trust and confidence.[172]With regard to Issue 3(D), we consider that Ms Burns’ conclusion (cited above at para 58) to have been a reasonable conclusion. However, the requests which Ms Maton made of the Claimant were, as Ms Burns found, inappropriate given the Claimant’s role; this leads us to conclude that she did not have ‘reasonable and proper cause’ to impose these duties unilaterally, as she did.[173]Viewed objectively, they put additional pressure on the Claimant, who already had a demanding role; it was sufficiently adverse conduct that the Claimant reasonably elected to raise a grievance in respect of it, which was partially upheld. We do not, however, consider that this, in itself, was conduct likely seriously to damage the relationship of trust and confidence.[174]We take a different view of the Respondent’s conduct in relation to the DME interview (Issue 3(1)). It is clear from the Claimant’s witness statement that the events of 16 April 2018 had a very considerable impact, subjectively, on her trust in the organisation. She wrote in her statement: ‘the turn of event[s] at the interview left me with lost hope’. The Tribunal must, however, consider whether the Respondent’s conduct (effectively, that of Mr Rothnie and Ms Bridge) on that occasion, viewed objectively, was likely seriously to damage the relationship of trust and confidence between employer and employee. We conclude that it was.[175]Mr Rothnie acted improperly in agreeing to sit on the panel. He knew that the fact of the Claimant’s grievance against him gave rise to a potential conflict: it was in part for that reason that he had decided not to conduct a review of the Claimant’s performance in the DME role; it was for that reason that he had been replaced as case manager of the grievance. He knew that much of the substance of the grievance related to his conduct in relation to the DME role; the Claimant had alleged that he had been unsupportive of her in the role. He knew that the Claimant was unhappy with the appointment of Dr Coward as Associate Director of Medical Education and that Dr Coward was the only other candidate for the DME role in April. Against that background, his decision to sit on the DME recruitment panel was, in the Tribunal’s view, perverse.[176]His response to the Claimant’s objection to his presence compounded the matter. When the Claimant suggested that he recuse himself, he challenged her repeatedly and inappropriately. Even after private discussion, Ms Bridge communicated to the Claimant that Mr Rothnie would not recuse himself from the panel. The Tribunal considered that his conduct was wilful.[177]Viewed objectively, his conduct would suggest to a reasonable observer that he was indifferent to the risk of actual or perceived bias in the conduct of an important recruitment exercise, which would affect the Claimant both professionally and financially. Given his seniority in the organisation, and the fact that he was the Claimant’s direct line manager in relation to that very role, this was likely seriously to damage the relationship of trust and confidence between employer and employee. It is fundamental to a sound employment relationship that important matters of recruitment are, and are seen to be, conducted fairly and without the appearance of bias.[178]We asked ourselves whether there was reasonable and proper cause for Mr Rothnie’s conduct. The only explanation advanced for it was that it was important for him to be on the panel because he would be the line manager of the successful candidate. However, we have already found that there was provision within the recruitment material for someone else to sit on the panel in his place. Indeed, that was eventually proposed, albeit after the Claimant’s resignation. There was no reasonable and proper cause for his conduct.[179]As for Ms Bridge’s conduct on the day, whether she agreed or disagreed with the position that she communicated to the Claimant, the fact that a senior HR manager within the Respondent company appeared to be condoning the inappropriate conduct of a recruitment exercise would, in the Tribunal’s view, be likely further to damage a reasonable employee’s trust in the organisation, viewed objectively.[180]We find that the Respondent’s conduct of the interview on 16 April 2018 was, in itself, a breach of the implied term of trust and confidence and it was, accordingly, a repudiatory breach of contract, in response to which the Claimant was entitled to resign and claim constructive dismissal.[181]If we are wrong about that, we conclude that the Respondent’s conduct of the interview, taken together with Ms Maton’s inappropriate imposition of duties on the Claimant in 2016/2017, was likely seriously to damage the relationship of trust and confidence and was a repudiatory breach of contract, in response to which the Claimant was entitled to resign and claim constructive dismissal. The Claimant’s Resignation[182]The letter of resignation is silent as to the reason for her decision. There is nothing particularly unusual in that.[183]The Tribunal concludes that the Claimant, when she resigned, had in mind both of the two matters which we have concluded formed a breach of the implied term. Ms Maton’s conduct had been part of her formal grievance from the outset; she raised the conduct of the interview at the meeting on 20 April 2018. We conclude that the Claimant also had in mind concerns other than these two matters when she resigned, matters which the Tribunal have not upheld. However, it is enough that we are satisfied that the relevant matters formed part of the reason for the resignation; they need not be the sole reason or even the predominant reason. We note that the Claimant was not cross-examined as to the reasons for her resignation. Affirmation[184]The Claimant resigned some two weeks after 16 April 2018. It cannot seriously be suggested that, by this short delay, she affirmed the contract and Mr Gil sensibly did not press the point in his written or oral submissions. The fairness of the dismissal[185]The Respondent has not proved that the Claimant was dismissed for one of the potentially fair reasons within s.98 Employment Rights Act 1996. Accordingly, her claim of unfair (constructive) dismissal succeeds.
Remedy
[186]There will be a remedy hearing to determine what compensation the Claimant is entitled to. The parties shall provide their dates to avoid for a one-day hearing within seven days of this judgment being sent out. If for any reason either party considers that one day is insufficient, it shall explain why in its reply. The Tribunal will then list the hearing and give directions. Employment Judge Massarella Date: 17 February 2020 APPENDIX: AGREED LIST OF ISSUES INTRODUCTION
The hearing
[1]The Claimant brings claims of:a. harassment related to race (s.26 and s.40 Equality Act 2010 ('EqA');b. direct race discrimination (s.13, 39(2)(b), 39(2)(d)) EqA;c. victimisation for doing a protected act contrary to provisions of (s.27, 39(4)(b), 39(4)(d) EqA);d. constructive unfair dismissal (s.95(2) Employment Rights Act 1996 ('ERA')).[2]The Claimant relies on the protected characteristic of race as defined by section 9 of the Equality Act 2010. The Claimant describes her race and ethnicity as Asian, and specifically that she is Pakistani. FACTUAL ISSUES[3]The Claimant relies on the following allegations in respect of each of the above heads of claims:a. On 21 July 2016, Jon Findlay, the Respondent Chief Operating Officer informed the Claimant that the 2 white Consultants would not be investigated. (Direct discrimination).b. The Claimant requested that Mr Neil Rothnie should in his capacity as the Medical Director talk to [Dr K] and ensure that the matter including the previous complaint is properly investigated. This request was dismissed by Mr Neil Rothnie (Direct discrimination).c. At the meeting between on or after 21 October 2016 between the Claimant and the Medical Director, he advised the Claimant that there were some patient safety issues against [Dr K]. (Harassment / Victimisation).d. In the period from October 2016 to February 2017, the Claimant was given additional tasks over and above that which she would usually be given. For example: (Direct discrimination / Harassment I Victimisation / Constructive Dismissal). I. To prioritise patients on post code rather than clinical needs, II. Undertake off-site clinics III. An expectation to cover nurses' clinic when nurses are on planned annual leave, IV. Undertake contraceptive clinics which are normally run by GPs, V. Paying back the clinical time while on planned leave.e. On 24 March 2017, Dr Caroline Howard declined to sign the Claimant's half-day professional leave for a regional meeting as Director of Medical Education. The Claimant contends that the refusal to approve the half day leave was intended to frustrate the Claimant for her position in the [Dr K] racial discrimination allegation complaint. (Victimisation / Harassment / Constructive Dismissal).f. On 27 March 2017, the Claimant complained to the Respondent's Medical Director, Mr Neil Rothnie about her treatment by Dr Howard and her refusal to approve her attendance at the regional meeting but Neil Rothnie instead supported Dr Howard. (Victimisation / Harassment/ Constructive Dismissal).g. On or about 27 March 2017, Dr Howard emailed the Claimant and confirmed that the Claimant can only attend the regional meeting as study leave provided that the Claimant agrees to pay back the costs of covering her clinic. (Victimisation/ Harassment / Constructiveh. On 4 May 2017, Dr Lucy Coward was appointed the Director of Medical Education, whilst the Claimant was still in post and without any advertisement and due process and without any warning to the Claimant that she is being replaced and even when the post was not vacant. (Direct discrimination / Harassment / Victimisation / Constructive Additional issue 3(h)(ii): The Respondent re-advertised the Claimant’s role as Director of Medical Education (‘DME’) on 31 January 2018 (Direct discrimination).i. On 7 March 2018, the Claimant was invited to attend an interview for the post of the Director of Medical Education on 16 April 2018. On the day of the interview and 5 minutes before it started, the Claimant was notified of the interview panel which included the Medical Director, Neil Rothnie against whom the Claimant had an outstanding and unresolved grievance. The Claimant objected to Mr Rothnie sitting on the interview panel. The Claimant's objection was ignored with the Director of HR insisting that Mr Rothnie must sit on the panel. (Victimisation / Harassment / Constructive Dismissal).j. On 20 April 2018, the Claimant attended the grievance meeting whereby she amended her grievance to include further allegation of removing her from the post of the Director of Medical Education and advertising the same to allow a white candidate, Dr Lucy Coward to take over the post. It was also amended to include the complaint relating to the failure of the Medical Director, Neil Rothnie to recuse himself from sitting on the interview Panel during the interview on 16 April 2018. The requests to amend her grievance were disregarded. (Victimisation / Harassment / Constructive Dismissal).k. On or about 4th May 2018, the Claimant was removed from her post as the Director of Medical Education and Dr Lucy Coward was appointed permanently as a consequence of her being an Asian supporting another Asian colleague and requesting that a complaint of racial abuse and discrimination against white colleagues be investigated. (Direct Discrimination / Harassment / Victimisation / Constructive[4]The above allegations are denied by the Respondent. LEGAL ISSUES[5]Out of Time and Continuing Acts a. In respect of those of the Claimant's claims that arose prior to 27 March 2018, the Respondent asserts that those allegations are out of time. I. Do any or all of those matters form part of a course of conduct by the Respondent extending over a period of time such as to render them in time? II. If not, is it just and equitable to extend time in respect of those allegations?[6]Harassment (s.26 EqA)a. Did the Respondent act as alleged at paragraphs 3(c, d, e, f, g, h, I, j, k) above?b. If so, did the Respondent engage in unwanted conduct related to the Claimant's race?c. Did the unwanted conduct have the purpose or effect of violating the Claimant's dignity, and/or did the conduct create an intimidating, hostile, degrading, humiliating, or offensive environment for the Claimant?d. Was it reasonable for the conduct to have that effect?[7]Direct race discrimination (s.13 EqA)a. The Claimant currently relies on Lucy Coward and Prof John Kinnear in support of her s.13 claims. In the alternative she relies upon a hypothetical Comparator who is white British Consultant and of the same experience and qualification as the Claimant.b. The Claimant relies on each of the alleged acts as set out at paragraphs 3(a, b, d, h, k) above.c. In respect of each of the claims of direct discrimination, did the Respondent act as alleged?d. If so, did the Respondent: I. treat the Claimant less favourably than it treated or would have treated her comparators; and if so II. did it do so because of her race?[8]Victimisation (s.27 EgA)a. Did the Claimant do a protected act or did the Respondent believe that the Claimant had done or may do a protected act? The Claimant relies on the following protected acts: I. On or about 21 July 2016, the Claimant informed the Medical Director of the Respondent, Mr Neil Rothnie and the Chief Operating Officer, Jon Findlay of the Complaint received from the School of Medicine about general undermining of trainee doctors by Consultants which the Claimant understood to be race related and demanded that the complaints be investigated. The Respondent denies this alleged protected act. II. On or after 21 October 2016 and following the Claimant's meeting with [Dr K], the Claimant met with the Respondent's Medical Director, Mr Neil Rothnie during which she raised the issue of the treatment of [Dr K] with him. The Respondent denies this alleged protected act. III. On 25 August 2017, the Claimant submitted a grievance in relation to various issues including how the Claimant had been treated following her complaint and demanded that the allegations of racial discrimination by [Dr K] be investigated. The Respondent denies this alleged protected act.b. Did the Respondent act as alleged at paragraphs 3(c, d, e, f, g, h, I, j, k) above?c. If the Respondent did act as alleged at paragraphs 3(c, d, e, f, g, h, I, j. k), above, did it subject the Claimant to a detriment by doing so?d. Did the Respondent subject the Claimant to a detriment because of the protected act?[9]Constructive Unfair Dismissala. Did the Respondent commit a fundamental breach of the Claimant's contract of employment amounting to a repudiation of that contract? The Claimant relies on the acts set out at paragraphs 3(d, e, f, g, h, I, j, k) above as alleged breaches of the implied term of trust and confidence.b. Did the Respondent act reasonably throughout the relevant period by: I. investigating the Claimant's grievances (including that her job plan had been reviewed) (paragraphs 3(d and j)); II. explaining to the Claimant that a request for leave to attend a regional meeting would be considered against the needs of the service and not automatically granted (paragraph 3(e-g)); III. appointing an interim Director of Medical Education as cover (not a replacement) for the Claimant whilst she was on long-term sick leave (paragraph 3(h and k)); IV. following Occupational Health advice not to contact the Claimant (therefore not contacting to discuss the specifics surrounding an appointment of an interim Director of Medical Education) (paragraph 3(h)); and V. offering the Claimant an opportunity to be interviewed on a different day by a panel not including the Medical Director (paragraph 3(i)).c. If so, did the Claimant nevertheless delay in resigning and thereby affirm her contract of employment?d. If the Claimant was constructively dismissed, what was the reason or principal reason for her dismissal and is it a potentially fair reason within section 98(1)(b) and (2) ERA?[10]Remedya. If the Claimant was unfairly dismissed: I. What basic award is she entitled to under s.119 ERA? What compensatory award would be just and equitable in all the circumstances?b. In particular: I. has the Claimant reasonably mitigated her loss? II. should any compensatory award be reduced to take account of the chance that the Claimant would have been dismissed in any event; and III. should any basic and/or compensatory awards be reduced by reason of the Claimant's own conduct?c. What award should be made for non-financial loss in relation to the claims brought under the Equality Act 2010. In particular for: I. personal injury; II. injury to feelings.
The hearing
[1]Following the full merits hearing, which took place on 27 and 28 June, 3 July and 17 October 2019, the Tribunal reserved its judgment. The written judgment and reasons, dated 17 February 2020, were sent to the parties on that date.[2]Having heard from the Claimant and the witnesses for the Respondent, and having considered the documents we were referred to, the Tribunal rejected the Claimant’s claims of race discrimination, but upheld her claim of unfair (constructive) dismissal, in a reasoned judgment which consisted of 186 paragraphs over 35 pages.[3]By letter dated 26 February 2020, the Claimant applied for reconsideration of the Tribunal’s conclusion as to Issue 3(h)(ii) (a claim of direct race discrimination in relation to the readvertising of the DME role) and Issue 3(I) (a claim of harassment related to race in relation to the conduct of the interview for that role). In respect of both claims, the Tribunal decided that the Claimant had not proved facts from which the Tribunal could reasonably conclude that race was a factor in the treatment complained of, and that those claims failed at the first stage of the analysis.[4]The Respondent wrote to the Tribunal providing brief comments, opposing the application.[5]By letter dated 7 March 2020 the Employment Judge ordered that the case be listed for a two-day hearing (dates to follow) at which the Claimant’s reconsideration application would be heard by the full Tribunal. Submissions would be heard from both parties, the Tribunal would then deliberate, give judgment on the application, and proceed directly to hear evidence and submissions as to remedy in respect of those claims it has upheld, whether or not that included the matters which were the subject of the reconsideration application.[6]In the same letter, the Judge ordered that the Respondent send to the Tribunal by 26 March 2020 any further response it wished to make to the Claimant’s reconsideration application. Further case management orders for the preparation of the hearing were made.[7]On 9 March 2020 a notice of hearing was sent to the parties, listing the matter for two days on 14 and 15 May 2020. On 11 March 2020 the Respondent applied for the hearing to be relisted, as its Counsel, who represented it at the liability hearing, was not available on those dates. By letter dated 11 March 2020, the Claimant raised no objection; both parties provided dates to avoid. The Judge granted the postponement application in an Order sent to the parties on 24 April 2020.[8]Unfortunately, by that point, the effects of the Covid-19 pandemic were at their height. No open hearings could be listed before the end of June, and it was unclear when the Tribunal would be in a position to resume such hearings. By July, sufficient progress had been made in developing CVP hearings that there was a realistic prospect of the case being listed. The Judge ordered that a short telephone hearing take place, to discuss with the parties whether the case was suitable for CVP hearing, to relist the hearing, and to give any further directions required.[9]Both parties agreed that the hearing could take place by CVP. In the event, a hybrid hearing took place, with the Tribunal panel sitting together in person, and the parties attending by video.[10]The parties provided a separate reconsideration/remedy bundle. The Tribunal had written submissions from both representatives, which they supplemented orally. The panel deliberated and gave an oral judgment on the first day in relation to the Claimant’s reconsideration application.[11]After the telephone preliminary hearing, and shortly before the reconsideration/remedy hearing the Respondent lodged an application for third-party disclosure and its own reconsideration application. On the second day, the Respondent’s third-party disclosure application was determined, and consideration was given as to how its reconsideration application should be progressed. Those matters are dealt with in a separate Order. As a result of the approach the Tribunal decided to adopt, the remedy hearing was postponed to 4 and 5 February 2021. The Claimant’s reconsideration application: the law to be applied Reconsideration[12]Rules 70 to 73 of the Employment Tribunal’s Rules of Procedure 2013, make provision for the reconsideration of Tribunal Judgments as follows: Principles A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again. Application Except where it is made in the course of a hearing, an application for reconsideration shall be presented in writing (and copied to all the other parties) within 14 days of the date on which the written record, or other written communication, of the original decision was sent to the parties or within 14 days of the date that the written reasons were sent (if later) and shall set out why reconsideration of the original decision is necessary. Process(1) An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal. Otherwise the Tribunal shall send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing. The notice may set out the Judge's provisional views on the application.(2) If the application has not been refused under paragraph (1), the original decision shall be considered at a hearing unless the Employment Judge considers, having regard to any response to the notice provided under paragraph (1), that hearing is not necessary in the interests of justice. If the reconsideration proceeds without a hearing the parties shall be given a reasonable opportunity to make further written representations.[13]In Outasight VB Ltd v Brown UKEAT/0253/14 the EAT held (at [46-48] that the Rule 70 ground for reconsidering Judgments (the interests of justice) did not represent a broadening of discretion from the provisions of Rule 34 contained in the replaced 2004 rules. HHJ Eady QC explained that the previous specified categories under the old rules were only examples of where it would be in the interests of justice to reconsider. The 2014 rules remove the unnecessary specified grounds leaving only what was in truth always the fundamental consideration: the interests of justice. This means that decisions under the old rules remain pertinent under the new rules.[14]The key point is that it must be in the interests of justice to reconsider a Judgment. That means that there must be something about the case that makes it necessary to go back and reconsider, for example a new piece of evidence that could not have been produced at the original hearing or a mistake as to the law. It is not the purpose of the reconsideration provisions to give an unsuccessful party an opportunity to reargue his or her case. If there has been a hearing at which both parties have been in attendance, where all material evidence had been available for consideration, where both parties have had their opportunity to present their evidence and their arguments before a decision was reached and at which no error of law was made, then the interests of justice are that there should be finality in litigation. An unsuccessful litigant in such circumstances, without something more, is not permitted to simply reargue his or her case, to have ‘a second bite at the cherry’ (per Phillips J in Flint v Eastern Electricity Board [1975] IRLR 277).[15]The expression ‘necessary in the interests of justice’ does not give rise to an unfettered discretion to reopen matters. The importance of finality was confirmed by the Court of Appeal in Ministry of Justice v Burton and Anor [2016] EWCA Civ 714 in July 2016 where Elias LJ said that: ‘the discretion to act in the interests of justice is not open-ended; it should be exercised in a principled way, and the earlier case law cannot be ignored. In particular, the courts have emphasised the importance of finality (Flint v Eastern Electricity Board [1975] ICR 395) which militates against the discretion being exercised too readily; and in Lindsay v Ironsides Ray and Vials [1994] ICR 384 Mummery J held that the failure of a party's representative to draw attention to a particular argument will not generally justify granting a review.’[16]In Liddington v 2Gether NHS Foundation Trust EAT/0002/16 the EAT, per Simler P, held at paragraph 34 that: ‘a request for reconsideration is not an opportunity for a party to seek to relitigate matters that have already been litigated, or to reargue matters in a different way or by adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered.’ The Burden of Proof[17]The burden of proof provisions are contained in s.136(1)-(3) EqA:(1) This section applies to any proceedings relating to a contravention of this Act.(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.(3) But subsection (2) does not apply if A shows that A did not contravene the provision.[18]The effect of these provisions was conveniently summarised by Underhill LJ in Base Childrenswear Ltd v Otshudi [2019] EWCA Civ 1648 (at para 18): ’18. It is unnecessary that I reproduce here the entirety of the guidance given by Mummery LJ in Madarassy. He explained the two stages of the process required by the statute as follows:(1) At the first stage the Claimant must prove “a prima facie case”. That does not, as he says at para. 56 of his judgment (p. 878H), mean simply proving “facts from which the Tribunal could conclude that the Respondent 'could have' committed an unlawful act of discrimination”. As he continued (pp. 878-9): “56. … The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a Tribunal 'could conclude' that, on the balance of probabilities, the Respondent had committed an unlawful act of discrimination. 57. 'Could conclude' in section 63A(2) [of the Sex Discrimination Act 1975] must mean that 'a reasonable Tribunal could properly conclude' from all the evidence before it. …”(2) If the Claimant proves a prima facie case the burden shifts to the Respondent to prove that he has not committed an act of unlawful discrimination – para. 58 (p. 879D). As Mummery LJ continues: “He may prove this by an adequate non-discriminatory explanation of the treatment of the complainant. If he does not, the Tribunal must uphold the discrimination claim.” He goes on to explain that it is legitimate to take into account at the first stage all evidence which is potentially relevant to the complaint of discrimination, save only the absence of an adequate explanation.[19]In Hewage v Grampian Health Board [2012] ICR 1054 the Supreme Court held (at para 32) that the burden of proof provisions require careful attention where there is room for doubt as to the facts necessary to establish discrimination, but have nothing to offer where the Tribunal is in a position to make positive findings on the evidence one way or the other. Conclusions: the Claimant’s application for a reconsideration[20]In relation to the first disputed allegation (Issue 3(H)(ii)), the Tribunal concluded (at para 164) that the Claimant could point to a difference of treatment and a difference of race, although an issue remained as to whether she could point to a comparator whose circumstances were materially the same as hers. The Tribunal put that issue to one side, a step which both representatives accepted could only be in the Claimant’s favour at that stage of the analysis, since it removed a potential obstacle in her path.[21]In relation to the second disputed allegation (Issue 3(I)), the Tribunal found that the Claimant was subjected to unwanted conduct, which is the first necessary element of a successful claim of harassment related to race. Selfevidently, the mere existence of conduct that is unwanted does not, in itself, prove that the conduct was tainted by considerations of race.[22]The Tribunal then went on to consider whether the Claimant had discharged the burden, which the authorities are clear falls on her at the first stage, to prove facts from which a reasonable Tribunal could properly conclude, absent an adequate explanation from the Respondent, that there was unlawful discrimination. To use the phrase which appears in the authorities, had she proved the ‘something more’ sufficient to shift the burden to the Respondent, requiring it to provide an adequate non-discriminatory explanation for the treatment, failing which the claim must be upheld?[23]The Tribunal found (at paras 167 and 168) that she had not. For the reasons we gave there, we were not satisfied that she had provided any evidence that race was a factor; alternatively, having regard to the evidence which she did adduce, we concluded that it was not such that a reasonable Tribunal could properly conclude that there was unlawful discrimination.[24]Since the burden of proof did not shift the Respondent, there was no requirement on it to prove an adequate, non-discriminatory reason for the treatment.[25]Mr Ojo criticises that conclusion (at paragraph 7 of the application) on the basis that no express or implied finding was made by the Tribunal as to whether it accepted or rejected the Claimant’s allegation of direct race discrimination/harassment related to race. We reject that criticism: the Tribunal made an express finding that both claims failed, because the Claimant had not discharged the initial burden on her. For the avoidance of doubt, this was not a case where the Tribunal felt able to move directly to the ‘reason why’ question; it was for that reason that we had regard to the burden of proof provisions.[26]The Tribunal accepts Mr Gil’s submission that the real question is whether, having made that finding, it was sustainable. The authorities are clear that the bare facts of a difference in status and a difference in treatment only point to the possibility of discrimination. Those two factors, without more, do not amount to facts from which a Tribunal could conclude that the Respondent had committed an unlawful act of discrimination (Madarassy). It was for that reason that we rejected the matters relied on by Mr Ojo in his written closing submissions at the liability hearing: because they fell into the trap of assuming that that those differences were enough in themselves. The Tribunal agrees with Mr Gill submission that Mr Ojo has fallen into the same trap again in making this reconsideration application.[27]Mr Ojo refers to the fact that the Tribunal heard evidence of other employees whose roles were not readvertised, and submitted that this could amount to the ‘something more’ required to shift the burden of proof. We do not accept that submission. The existence of other potential comparators merely provides further possible evidence (subject to the Tribunal being satisfied that they were in materially the same circumstances) of difference of treatment/difference of race. It does not provide the ‘something more’ required.[28]Mr Ojo then submitted that the Tribunal reversed the burden of proof, arguing that once it had found that the conduct alleged had occurred, it was for the Respondent to show that the reason for it was not as a result of the Claimant’s race, and that it was not for the Claimant to explain the Respondent’s conduct. That is to misunderstand the operation of the burden of proof: the burden only shifts to the Respondent to show that the reason for the treatment was in no sense whatsoever because of the Claimant’s race, if the Claimant has discharged the initial burden, which she had not.[29]Mr Ojo then points to paragraph 161 of the judgment, in a passage dealing with ‘conduct extending over a period’ in the context of limitation, in which the Tribunal found that ‘there is a strongly arguable connection between the decision to advertise the DME role in January 2018 and the later conduct of the interview in April 2018’.[30]All that the Tribunal was finding there was that there was a factual nexus (almost too obvious to be stated) between the advertising of a role and the interview for it. There is nothing in that finding which could be probative of race being a factor in either decision.[31]For these reasons, the application for reconsideration is refused. In the Tribunal’s judgment, there are no good grounds for reopening its conclusions in respect of these two matters, and it is not in the interests of justice to do so. The original decision is confirmed.[1]By a judgment sent to the parties on 22 November 2019, the Tribunal concluded as follows: 1.1. that the Respondent breached the implied term of trust and confidence by its conduct of the interview for the DME position on 16 April 2018; 1.2. alternatively, that the conduct of the interview, taken together with Ms Maton’s inappropriate imposition of duties on the Claimant in 2016/2017, amounted to a breach of the implied term; 1.3. that the Claimant resigned, in part at least, in response to the breach; and 1.4. that she did not affirm the contract between the breach and her resignation; 1.5. accordingly, she was constructively dismissed and, absent any potentially fair reason for the dismissal, it was unfair; 1.6. the Claimant’s claims of direct race discrimination, harassment related to race, and victimisation were not well-founded and were dismissed.[2]By letter dated 26 February 2020, the Claimant made an application for reconsideration of the Tribunal’s rejection of her claims of direct race discrimination and harassment related to race, in relation to the re-advertising of the DME role and the conduct of the interviews for that role. That application was considered at a hearing on 5 and 6 November 2020, which had been listed to deal with the reconsideration application and with remedy. The outcome of the application, which was that the decision to dismiss the Claimant’s claims of race discrimination was confirmed, was given orally at the hearing; the reasons are recorded in a judgment, sent to the parties on 11 November 2020.[3]Shortly before the November hearing, the Respondent lodged an application for third-party disclosure, and an application of its own for reconsideration. The background to those applications is set out in a case management order, sent to the parties on 12 November 2020. The hearing[4]The parties provided us with a bundle of documents, running to some 250 pages. We heard evidence from Ms Katie Palmer (Medical Education Manager), which was relevant to the reconsideration issue only. We heard evidence from the Claimant in relation to both reconsideration and remedy.[5]In its application for reconsideration, which was made some six months outside the time limits provided for in the 2013 Rules, the Respondent submitted that the finding of constructive dismissal because evidence had subsequently emerged that the Claimant had applied to train as a GP in November 2017, and had been accepted onto that training programme before the interview for the DME post, at which the repudiatory breach of contract occurred. In the light of that evidence, the Respondent argued that it was in the interests of justice for the Tribunal to reconsider its decision as to whether the Claimant resigned, in part at least, in response to the repudiatory breach.[6]Between the two preliminary hearings, I considered the Respondent’s application on the papers, and decided to extend time, and permit the reconsideration application to proceed. The Claimant objected in writing, on the basis that she had not had an opportunity to address me on the time limits issue. On my own initiative I decided to reconsider the question of time limits as a preliminary issue at the beginning of the hearing. The representatives agreed that this was a matter for me to decide alone, rather than an issue for the full Tribunal.[7]I heard evidence from Ms Palmer, who was cross-examined by Mr Ojo; both representatives made submissions. I deliberated, and came to the conclusion (recorded below) that time should be extended. The full Tribunal then heard evidence from the Claimant, who was cross-examined by Mr Gil, both on the reason for her resignation, and on remedy issues.[8]At the beginning of the second day, I raised concerns with both representatives as to adequacy of the schedule and counter-schedule of loss: neither had been updated in preparation for this hearing; the Respondent’s calculations were predicated on a hearing in June 2019, the Claimant’s on a hearing in October 2019; the Claimant had wrongly used gross, rather than net, figures in calculating the compensatory award; it was unclear whether the Respondent had used gross or net figures.[9]I asked the parties to seek to agree the core net figures, the figure for pension loss and, if they were not able to do so, to identify the precise basis of any dispute. The Tribunal then heard oral submissions, both on the reconsideration application and on the principles of their approach to remedy. We then broke for around two hours, to allow the parties to seek agreement on the calculation issues. As a result of that process, they helpfully provided the Tribunal with some agreed figures, which are recorded below. Reconsideration of the decision to extend time for the Respondent’s application
The Law
[10]Rules 70 to 73 of the Employment Tribunal’s Rules of Procedure 2013, make provision for the reconsideration of Tribunal Judgments as follows: Principles A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again. Application Except where it is made in the course of a hearing, an application for reconsideration shall be presented in writing (and copied to all the other parties) within 14 days of the date on which the written record, or other written communication, of the original decision was sent to the parties or within 14 days of the date that the written reasons were sent (if later) and shall set out why reconsideration of the original decision is necessary. Process(1) An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal. Otherwise the Tribunal shall send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing. The notice may set out the Judge's provisional views on the application.(2) If the application has not been refused under paragraph (1), the original decision shall be considered at a hearing unless the Employment Judge considers, having regard to any response to the notice provided under paragraph (1), that hearing is not necessary in the interests of justice. If the reconsideration proceeds without a hearing the parties shall be given a reasonable opportunity to make further written representations.[11]There is a general power to extend time in Rule 5: The Tribunal may, on its own initiative or on the application of a party, extend or shorten any time limit specified in these Rules or in any decision, whether or not (in the case of an extension) it has expired.[12]In Outasight VB Ltd v Brown UKEAT/0253/14 the EAT held (at [46-48]) that the Rule 70 ground for reconsidering Judgments (the interests of justice) did not represent a broadening of discretion from the provisions of Rule 34 contained in the replaced 2004 rules. HHJ Eady QC explained that the previous specified categories under the old rules were only examples of where it would be in the interests of justice to reconsider. The 2014 rules remove the unnecessary specified grounds, leaving only what was in truth always the fundamental consideration: the interests of justice. This means that decisions under the old rules remain pertinent under the new rules.[13]The key point is that it must be in the interests of justice to reconsider a judgment. That means that there must be something about the case that makes it necessary to go back and reconsider, for example a new piece of evidence that could not have been produced at the original hearing or a mistake as to the law. It is not the purpose of the reconsideration provisions to give an unsuccessful party an opportunity to reargue his or her case. If there has been a hearing at which both parties have been in attendance, where all material evidence had been available for consideration, where both parties have had their opportunity to present their evidence and their arguments before a decision was reached and at which no error of law was made, then the interests of justice are that there should be finality in litigation. An unsuccessful litigant in such circumstances, without something more, is not permitted to simply reargue his or her case, to have ‘a second bite at the cherry’ (per Phillips J in Flint v Eastern Electricity Board [1975] IRLR 277).[14]The expression ‘necessary in the interests of justice’ does not give rise to an unfettered discretion to reopen matters. The importance of finality was confirmed by the Court of Appeal in Ministry of Justice v Burton and anor [2016] EWCA Civ 714 in July 2016 where Elias LJ said that: ‘the discretion to act in the interests of justice is not open-ended; it should be exercised in a principled way, and the earlier case law cannot be ignored. In particular, the courts have emphasised the importance of finality (Flint v Eastern Electricity Board [1975] ICR 395) which militates against the discretion being exercised too readily; and in Lindsay v Ironsides Ray and Vials [1994] ICR 384 Mummery J held that the failure of a party's representative to draw attention to a particular argument will not generally justify granting a review.’[15]In Liddington v 2Gether NHS Foundation Trust EAT/0002/16 the EAT, per Simler P, held at paragraph 34 that: ‘a request for reconsideration is not an opportunity for a party to seek to relitigate matters that have already been litigated, or to reargue matters in a different way or by adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered.’[16]The test for determining whether fresh evidence is to be admitted is that laid down in Ladd v Marshall [1954] 1WLR 1489. The party seeking to adduce the fresh evidence must show:(1) that the evidence could not have been obtained with reasonable diligence for use at the original hearing,(2) that it is relevant and would probably have had an important influence on the hearing, and(3) that it is apparently credible. Background to the application[17]The Claimant resigned on 1 May 2018, giving three months’ notice. Her last day of employment with the Respondent was 31 July 2018. She commenced GP training (GPST1) on 1 August 2018.[18]On 6 March 2019, the Respondent’s solicitors wrote to the Claimant’s solicitor, asking him to confirm when the Claimant applied for the GPST1 role, and requesting a copy of the application. Mr Ojo replied on 11 March 2019 that his instructions were that the application was made in May 2018, and that the Claimant did not have a copy of the application, as it was done online. That response was challenged by the Respondent, reasserted by Mr Ojo, and accepted by the Respondent.[19]At a preliminary hearing on 20 July 2020, the Respondent asked for further documents relating to mitigation, and an order for further disclosure by 3 August 2020 was made. On 3 August 2020, the Respondent’s solicitor chased disclosure, particularly in relation to the GP training application. The Respondent gave the Claimant until 27 August 2020 to disclose those documents. The Claimant insisted that they were not in her possession. The Respondent became concerned about the veracity of the Claimant’s position, and made its own investigations, which led to an application for specific disclosure on 16 September 2020. On 17 October 2020, the Tribunal ordered the Claimant to set out in her witness statement for the remedy hearing why she did not have documents relating to the application, and what steps she had taken to obtain them. When that statement was produced, the Claimant did not address in any meaningful sense her application for the GP training, save to say that she applied for it in November 2017. On 17 October 2020, the Respondent made an application for third-party disclosure, and for reconsideration of the Tribunal’s decision on liability, in relation to constructive dismissal.[20]On 29 October 2020, the Respondent sought disclosure of documents from Health Education England (‘HEE’), copying in the Claimant, in order that she might consent to the release of the information. Mr Ojo replied to the Respondent and HEE: ‘… we understand that for you to disclose the information requested, you must seek our client’s consent for that disclosure. We however note that Capsticks did not say that Dr Jaleel has given her consent for the information to be disclosed. We therefore hope that you will not equate our being copied into this email as Dr Jaleel’s consent which has to be given by Dr Jaleel herself.’[21]On 30 October 2020, HEE wrote to the Respondent, saying that, without the Claimant’s express consent, or an order from the Employment Tribunal, it could not release the information requested. In the event, the Claimant did not give her consent until the second day of the hearing in November 2020.[22]When disclosure was eventually provided by HEE, it was limited, because as a matter of course, HEE only retained applications for thirteen months (i.e. until December 2018). It did not include the Claimant’s original application form, but did include confirmation of the surrounding circumstances, including the date of her application, and the date on which she was notified by email that it was successful. Decision on extension of time[23]Having reconsidered, on my own initiative, my decision to extend time under Rule 5 for the presentation of the Respondent’s reconsideration application, I confirmed that decision, and permitted the application to proceed.[24]Dealing firstly with whether the new evidence satisfies the Ladd and Marshall test, I was satisfied that it did. It was new evidence: the fact that the Claimant applied for the job on 20 November 2017, not May 2018, as the Respondent was told in the period leading up to the liability hearing, was revealed for the first time in her witness statement on 26 October 2020. It was potentially relevant to the finding of unfair constructive dismissal. It was plainly credible: the evidence the Claimant gave in her witness statement for the remedy hearing aligned with the information provided by Health Education England; it was also consistent with such information as the Respondent was able to discover through its own enquiries.[25]As to whether the existence of the evidence could not reasonably have been known about at the time, I found that the Respondent made appropriate enquiries before the liability hearing as to when the Claimant was offered her new job. It was given a clear answer, which was that the Claimant had applied for the role in May 2018. It queried that answer, but the information was reasserted by the Claimant’s representative. Although the Respondent could have made an application for specific/third-party disclosure at that point, I do not consider that it acted without reasonable diligence in not doing so. A party is not required to go to those lengths, in circumstances where the other party, through its professional representative, has given information which it is entitled to take at face value.[26]The Respondent took the view that the question could be explored further at the remedy hearing, insofar as it went to the Polkey question. The desirability of probing the Claimant’s answer further in relation to liability was only confirmed in the light of the information given by the Claimant in her witness statement. Further, I accept the evidence of Ms Palmer (who was not involved in the preparation for the liability hearing) that knowledge of the timetable for the GP training application process was information which those within the Respondent charged with preparing the case were unlikely to have.[27]In resisting the application, Mr Ojo effectively submitted that the Respondent should have been more sceptical about the information which he provided in his emails of March 2019. That was an unattractive submission.[28]I was not entirely satisfied by the Respondent’s explanation as to why the application could not have been made somewhat earlier. Nonetheless, Rule 5 gives me a broad discretion to extend time, in which delay is only one relevant consideration. I also had regard to the fact that, although the Claimant did consent to the application for third-party disclosure, she did so at the last moment, having previously done nothing to indicate her consent. Mr Ojo’s assertion that the May 2018 date was his error, rather than the Claimant’s responsibility, emerged only on 27 October 2020; that underlined the fact that getting to the bottom of this matter proved a difficult, and evolving, exercise for the Respondent, and went some way to mitigating the delay in making the application.[29]I accepted Mr Gil’s submission that, knowing what we know now, the parties were not on an even footing at the liability hearing: neither the Tribunal nor the Respondent had important information, on the basis of which Mr Gil would undoubtedly have cross-examined the Claimant as to her reason for resignation, and which might have had a material influence on the Tribunal’s findings of fact and conclusions.[30]The circumstances of this application were exceptional in one important respect: precisely the same evidence and submissions were relevant to the issue of remedy, in particular Polkey, as were relevant to the matter which the Respondent sought to be reconsidered. Mr Ojo argued that that was a reason not to permit a reconsideration of the liability issue, because the Respondent could still have a positive outcome of sorts, if it succeeded in its Polkey argument. I took the opposite view: the fact that the Tribunal had already assigned time to deal with this new evidence in the context of the remedy hearing argued in favour of both issues being allowed to proceed: its time would not be unnecessarily taken up, nor would other litigants be inconvenienced. A two-day listing was needed in any event for the remedy hearing: the hearing of a reconsideration application merely required the parties to approach the hearing efficiently, so as to ensure that all issues could be dealt with in the time available.[31]For all these reasons, I considered that the balance of prejudice favoured the Respondent: the prejudice to the Claimant of allowing the application to proceed was confined to the obligation to defend it. If she succeeded, she would retain the finding of constructive dismissal. On the other hand, the prejudice to the Respondent of not allowing the application to proceed was very substantial: there was a risk that a finding of unfair dismissal would stand against it, which the evidence heard at the remedy stage might suggest was unsound. I concluded that it was in the interests of justice for time to be extended, and for the reconsideration application to proceed[32]I observed that none of this went to the question of whether the reconsideration application would succeed. The Respondent faced a high hurdle: if the Tribunal remained satisfied that the repudiatory breach formed some part at least of the Claimant’s reason for resigning, a finding that she had other reasons for resigning would not vitiate that conclusion, although it might have an impact on the compensation to which she was entitled. Decision on the Respondent’s substantive application for reconsideration of the liability judgment The application process[33]GPST1 recruitment is a multistage process, which is carried out by HEE according to a set timeline. The Claimant accepts that the account given by Ms Palmer as to that timeline was correct: the closing date for applications was 30 November 2017; a remote exam took place in January 2018; and she attended a selection centre in February 2018, where she was observed and assessed.[34]An offer of GP training was made to her on 28 February 2018, which she accepted by 2 March 2018. Having an offer of training was not the same as an offer of employment. The guidance to the process expressly stated as follows: ‘Offers of Employment & Pre-Employment Checks The offer and allocation of a Training Programme referred to above is NOT an offer of employment. An employment contract detailing the terms and conditions of employment will be issued by the responsible employing organisation and is made subject to satisfactory preemployment checks. Your offer of employment will include the name of your employer, the start date and length of the period of employment, the location, the hours, the minimum rate of remuneration in the notice period applicable.’[35]Once the initial offer was made, she had a number of options: to accept, to decline or to defer. Having accepted the offer of training, there was nothing to prevent the Claimant withdrawing at a later stage. Although there was no formal mechanism for her to withdraw later on, in practice there would have been nothing to prevent her from doing so. The offer provided her with another option, should there be a further deterioration in her relationship with the Respondent.[36]Once she had accepted an offer of training within a particular region, the Claimant was then asked to indicate her preferred geographical location in terms of the placement. Higher performing applicants were offered a higher preference from the pool of local placements.[37]The Claimant handed in her notice to the Respondent on 1 May 2018, and accepted an She joined as a trainee GP on 1 August 2018. In order to take up that post, she had to give notice to the Respondent on 1 May 2018, which she did.[38]In her new post, the Claimant enjoyed pay protection in respect of her basic salary, but not the additional pay elements, such as the remuneration for the DME role. That pay protection lasts until August 2021. The Claimant’s reasons for making the application[39]The Claimant did not disclose at the liability hearing the fact that she had made the application for GP training in November 2017. Instead, an incorrect case was advanced through her solicitor; she did not correct that incorrect account until November 2020; she then did not consent until the last moment to an order for third-party disclosure. Either the Claimant gave wrong information to Mr Ojo, or Mr Ojo gave the wrong information without first taking proper instructions from the Claimant.[40]That conduct caused us to approach the Claimant’s evidence at the reconsideration/remedy hearing with caution. Although we had regard to this failure, we do not infer from it, as the Respondent invites us to do, that the disclosure of her application for GP training would probably have proved that the Claimant was committed to a new career, and always intended to resign, irrespective of the Respondent’s subsequent conduct.[41]The Tribunal considers that it would be very surprising for any job applicant to do other than express enthusiasm for, and commitment to, a role, for which she is applying. Even if she had done so, it would not be especially probative of her private intentions: whether she was applying because she had already resolved to change career, or because she had concluded that she needed a fallback position. We concluded that testing the Claimant’s evidence that the latter was the case against what we knew, or could find, about the context in which she made the decision, was more likely to lead us to the truth.[42]The Claimant applied for GP training on 20 November 2017. Four days later she made her first explicit complaint about Mr Rothnie, through her BMA representative.[43]In her witness statement, the Claimant explained that she spoke to colleagues, who suggested that complaining about Mr Rothnie might have an adverse effect on her career, and that she ought to consider having a safety net in place. This made her anxious. One of her colleagues was applying for GP training, and suggested that she do the same. She wrote: ‘After careful consideration, I came to the conclusion that I should have an option of at least earning a living as a doctor even if it meant taking a substantial cut in salary, in case things go south for me at the Respondent whilst also looking for other positions, before I am pushed out finally.’[44]Mr Gil put to the Claimant that the reason why she applied for the GP training, was because she was dissatisfied with her current employment for a number of reasons: she had been asked to do work outside her remit; there had been changes to a contract with which she was not happy; she felt that she was unsupported; and she had been told that Dr Coward would not step down as associate DME. He put to the Claimant, and submitted to us, that the Claimant’s explanation did not make sense: why, he asks, would she have disregarded the advice not to raise a grievance against Mr Rothnie?[45]Although she was plainly unhappy about these issues, we consider that there are factors, which point to the Claimant not having made a definitive decision to leave. We consider that it was unlikely that she would have pursued her existing grievances with such persistence, if she were not genuinely seeking to improve her position within the Respondent. We think it even more unlikely that she would have put herself through the inevitable anxiety of raising a grievance against Mr Rothnie, if she had no intention of remaining in employment.[46]We note that in the course of her meeting with Ms Barnes, the Claimant thanked her for changing her reporting structure, and assigning her Directorate to another department (from Medicine to Women and Children), which meant that she would not be reporting to the managers with whom she had had significant disagreements (Ms Maton and Ms Harwood). In our view, that suggests that she was looking towards an improved future within the Trust.[47]Further, we think it highly unlikely that, had she decided definitively to accept the offer of GP training, the Claimant would have reapplied for the DME post, which on any view she must have anticipated would be a taxing process. Mr Gil put to the Claimant that the only reason she did so was so as to increase her salary, which would then be protected in her future role. We reject that suggestion: there was no evidence to support it, and we regarded it as fanciful. In any event, it emerged in cross-examination that the Claimant continued to be paid in relation to the DME role up to the end of her employment with the Respondent.[48]We find that the Claimant did not ignore the advice she had been given by colleagues; on the contrary, she followed it. She pursued the GP training route as a backup, in case her relationship with the Respondent further deteriorated. We are satisfied that she felt vulnerable in her position within the Respondent organisation: she had already raised grievances against colleagues; her perception was that the decision to advertise the DME post undermined her position; and she had made the decision to make further allegations against Mr Rothnie, a very senior figure within the organisation, who had been her line manager in the DME role.[49]Although it is right that she had been accepted by HEE to be allocated to a trust, the Claimant knew that she could withdraw and remain with the Respondent right up until the last minute. The point at which she was unlikely to change her mind was after she had given her notice to the Respondent, because there would then be no guarantee that if she did so, the Respondent would accept the retraction of the resignation. However, she knew that she had some time before she had to make that decision; the deadline was the end of May.[50]We are satisfied that the Claimant’s actions in the period between November 2017 and May 2018 were more consistent with her seeking to restore the employment relationship, than with her having already decided to walk away from it. After careful consideration, we accept the Claimant’s evidence that she had not made a definitive decision to retrain as a GP when she made her application in November 2017, and that she pursued it as a fallback position.[51]We conclude that the conduct of the Respondent in relation to the DME interview was the trigger which prompted the Claimant to commit to the GP training route, because (as we have already found) that conduct, viewed objectively, was likely seriously to damage the relationship of trust and confidence.[52]The fact that the Claimant waited until the end of the month before giving notice does not undermine that conclusion. There was no suggestion that by doing so she waived the breach.[53]Accordingly, we are satisfied that the repudiatory breach formed part of the reason for the Claimant’s resignation, and the Tribunal confirms its judgment that she was constructively unfairly dismissed. Remedy: submissions The Respondent’s submissions[54]Mr Gil’s primary submission was that the Claimant was not entitled to any remedy, as she was not constructively dismissed. That submission falls away in the light of the Tribunal’s confirmation of its original decision.[55]His secondary submission was that, even if the finding of unfair dismissal is maintained, there was a 100% chance that the Claimant would have resigned in any event, because she was dissatisfied working for the Respondent, and had decided to become a GP. He submitted that it was probable that Dr Coward would have been appointed to the DME role. The Claimant should be entitled only to a basic award and an award for loss of statutory rights.[56]Mr Gil’s tertiary position is that the period of loss should be confined to 3 months, with an 80% Polkey reduction. If the Tribunal accepts that submission, he is content for it to use the agreed, full net weekly loss of salary as the core figures (£406.06). He submitted that the Claimant had failed to mitigate her loss by not applying for other Consultant roles.[57]If the Tribunal is minded to award a longer period of loss, Mr Gil argues for a lower net weekly loss of earnings figure (£127), for reasons which are given below. The Claimant’s submissions[58]Mr Ojo invited the Tribunal to find that the new evidence changed nothing: the Claimant made the application for GP training as a fallback position, should she find herself in a position where the current employment became untenable.[59]Further he submitted that, by taking up the GP training, she had acted reasonably in mitigating her loss. There was no evidence that the Claimant would have been appointed to the consultant position, which he invited us to find she had applied for.[60]As for the Polkey issue, Mr Ojo invited us to find that there was a 0% chance that the Claimant would have resigned in any event, had there been no breach of the implied term. He invited the Tribunal to find that the Claimant would have been appointed to the DME role; she had six excellence awards, had performed very well, and was a valuable member of the team. Compensation The Tribunal’s conclusions[61]Having heard evidence from the Claimant, and having read the documents to which we were referred in the remedy bundle, we make the following findings of fact, and draw the following conclusions. The relevant law is set out under each sub-heading. Those figures agreed between the parties on the second day of the hearing are incorporated below. Basic award[62]The Claimant is entitled to a basic award, which the parties agree should be £10,668. Compensatory award[63]S.123 ERA provides that the amount of the compensatory award shall be such as the Tribunal considers just and equitable in all the circumstances, having regard to the loss sustained by the Claimant in consequence of the dismissal, insofar as that loss is attributable to the action taken by the employer. Heads of compensation might include: immediate loss of earnings – i.e. from dismissal to date of hearing when the Tribunal decides on compensation; future loss of earnings, i.e. estimated loss after the hearing; and loss of pension rights.[64]Where the dismissal occurred after 6 April 2018, and before 5 April 2019, the amount of the compensatory award shall not exceed the lower of £83,682 or 52 weeks’ pay (‘the statutory cap’). A week’s pay is calculated according to the rules in ss.221-229 ERA, but without applying the cap in s.227 ERA. The statutory cap is applied after the grossing up calculation has been carried out (Hardie Grant London Ltd v Aspden, UKEAT/0242/11/RN). The Claimant’s net weekly loss[65]The Claimant’s annual salary was composed of a basic salary, with additional elements, relating to such matters as her Clinical Excellence Award and Additional Programmed Activities.[66]The parties agreed that the basic salary element is extinguished, because of the pay protection, to which the Claimant was entitled in her new role. Consequently, the only relevant earnings for the purposes of the compensatory award are the additional salary elements, listed in the schedule and counterschedule.[67]The parties’ agreed figure for the net weekly loss of salary in relation to all of those additional elements was £486.06.[68]At the end of his oral submissions, Mr Gil argued for a much lower figure in respect of the net weekly loss, on the basis that ‘the Claimant would not have been in receipt of any DME uplift and her additional programmed activities, which came out at £2000 gross per month, have been replaced by shift work which comes out at £1000 gross per month’. He argued that the figure the Tribunal should use for any future loss is, therefore, £1000 gross monthly, which produces a net weekly figure of £127. He submitted that this should then carry forward into the calculation of net weekly pension loss.[69]Mr Ojo’s submission was that the full amount of £486.06 should be used for the calculation of past and future loss of earnings.[70]We deal first with Mr Gil submission that the Claimant would not have been appointed to the DME position, had there been no unfairness. Mr Gil submitted that, because the Claimant is asserting that she is entitled to the loss of that salary element, the burden is on her to show that she would have been appointed. However, the Respondent was positively asserting that the Claimant would have resigned in any event, in part because she was unlikely to be reappointed to the DME role.[71]In the circumstances, we conclude that the burden of proof as to who would have been appointed is a shared burden, although we observe that the natural source from which we would expect to hear evidence on this issue would be the Respondent, since it would be making the decision as to which of the two candidates was the more likely to be appointed. No such evidence was led. Nor, indeed, was it put to the Claimant in cross-examination that that Dr Coward was the better candidate, had more relevant experience etc., and was more likely to be appointed.[72]Doing the best we can in the circumstances, we had regard to the fact that both the Claimant and Dr Coward were qualified for the role, and both of them had performed the role; there was no suggestion that either had not performed it well. Accordingly, we estimate that the chance of the Claimant’s being reappointed to the role was 50%.[73]We deal then with Mr Gil submission that, had the Claimant not been appointed to the DME position, that would have had a knock-on effect on other salary elements. We reject that submission: it was unsupported by any evidence; it was not flagged up in the counter schedule of loss; and the point was not put to the Claimant in cross-examination. Consequently, the only reduction we are prepared to make is to the element identified in the counter-schedule as ‘clinical director fees’, in the amount of £5000 which, in a footnote to the counter schedule, the Respondent stated the Claimant would no longer receive, if she was no longer in the DME post.[74]Because the parties had not broken down the calculation of the net weekly earnings of £486.06, the Tribunal was obliged to carry out its own estimate of what the impact of a reduction of 50% on the £5000 element would have on the weekly figure. The total amount of the additional elements (using the figures in the Respondent’s counter schedule) was £63,749.36. Deducting £5000 from that sum produce a figure of £58,749.36, which is 92.16% of the larger figure. Applying that percentage to £486.06 produced a net weekly figure of £447.95, which we then used as the core weekly figure for the calculations below. Past loss of earnings, subject to reductions[75]The effective date of termination was 31 July 2018; the calculation date was 5 February 2021. The period between those two dates is 131.57 weeks.[76]The past loss of earnings, subject to any reductions for mitigation and Polkey, is £58,936.78 Future loss of earnings[77]In her schedule of loss, the Claimant claimed loss of earnings in respect of a period of 3 years from the effective date of termination. That period is 156.57 weeks. Deducting the period of past loss (131.57), gives rise to a period of future loss of 25 weeks. We are not minded to award a longer period, in part because the Claimant has not claimed more in her schedule of loss, and in part because we heard little or no evidence as to what her employment prospects will be after the end of her training.[78]The future loss, by reference to the weekly net loss of £447.95, is £11,198.75, subject to any reductions for mitigation and Polkey. Pension loss[79]The parties’ agreed figure for loss of pension is £5,310.76. That is an annual figure to be applied to the periods of loss found by the Tribunal; it produces a weekly figure of £102.13.[80]Past loss of pension is £13,437.24; future loss is £2,553.25; both are subject to arguments as to reductions. Loss of statutory rights[81]One of the heads of loss for which a Tribunal may award compensation is the value of accrued statutory rights that have been lost: where an employee begins a new job following the termination of their employment, they will need to accrue two years’ continuous service before they will have acquired the right to claim unfair dismissal or a statutory redundancy payment, and may have lost the right to a lengthy statutory notice period if they have been employed for several years.[82]The parties agreed a figure of £350. Total compensatory award, before any reductions 83. £58,936.78 (past loss of earnings) + £11,198.75 (future loss of earnings) + £13,437.24 (past pension loss) + £2,553.25 (future pension loss) + £350 (loss of statutory rights) minus £355 (private fees earned) = £86,121.02. Earnings which have mitigated the Claimant’s losses/sums which reflect any unreasonable failure by her to mitigate[84]It is a fundamental principle that any Claimant will be expected to mitigate the losses she suffers, as a result of an unlawful act, by giving credit, for example for earnings in a new job (mitigation in fact); and that the Tribunal will not make an award to cover losses that could reasonably have been avoided (mitigation in law).[85]In Cooper Contracting Ltd v Lindsey UKEAT/0184/15, Langstaff J reviewed the authorities relating to mitigation. The following principles emerge: 85.1. the burden of proof is on the wrongdoer; a Claimant does not have to prove that she has mitigated loss; it is not a broad assessment on which the burden of proof is neutral; 85.2. what has to be proved is that the Claimant acted unreasonably; she does not have to show that what she did was reasonable; there is a difference between acting reasonably and not acting unreasonably; what is reasonable or unreasonable is a matter of fact. 85.3. It is to be determined, taking into account the views and wishes of the Claimant as one of the circumstances, though it is the Tribunal’s assessment of reasonableness and not the Claimant’s that counts; 85.4. the Tribunal is not to apply too demanding a standard to the victim; after all, she is the victim of a wrong. She is not to be put on trial as if the losses were her fault when the central cause is the act of the wrongdoer; 85.5. in a case in which it may be perfectly reasonable for a Claimant to have taken on a better paid job that fact does not necessarily satisfy the test. It will be important evidence that may assist the Tribunal to conclude that the employee has acted unreasonably, but it is not in itself sufficient.[86]Without evidence adduced by the employer upon which the Tribunal can be satisfied that, on the balance of probabilities, the Claimant has acted unreasonably in failing to mitigate, a claim of failure to mitigate will not succeed; see: Look Ahead Housing and Care Limited v Chetty, UKEAT 0037/14.[87]In addition to the salary in her new role, the Claimant did a small amount of private work, for which she and earned £355 and she gives credit for that. We reject the Respondent’s contention that the Claimant had not provided full disclosure in relation to this: had the Respondent been dissatisfied with the disclosure provided, it could have made it an application for specific disclosure; none was made[88]The Respondent submitted that the Claimant had unreasonably failed to mitigate her losses.[89]The starting-point is that, when the Claimant considered that it might be necessary to find alternative employment, and some time before the termination of her existing employment, she took steps to find work, which guaranteed her the same basic salary for three years; that itself was a reasonable step to take. We have concluded that it was not unreasonable for her to accept this job which guaranteed her the same basic salary for three years, even though it did not guarantee the additional payments. It effectively eliminated the majority of her potential loss.[90]In September 2018, the Claimant’s evidence was that she also applied for the role of Consultant in Sexual Health and HIV Medicine at Chelsea and Westminster Hospital, but was not offered an interview. She accepted that this was the only such role she applied for. The Respondent challenged that evidence, and suggested that, had she applied for the role, she would have received an email confirmation; the Claimant has disclosed no such confirmation.[91]On the balance probabilities, we are satisfied Claimant did apply for the role, but either did not receive an email, or has not been able to locate it. If we are wrong about that, the Respondent sought to persuade us that, had she applied for it, she definitely would have been appointed. The Respondent led no evidence to make good that assertion. Absent any evidence as to such matters as how many applications were received, and what the quality of those applications were, the Tribunal cannot possibly make the finding the Respondent urges upon us.[92]Mr Gil fairly accepted that the exercise of seeking show that an employee has failed to mitigate her loss usually requires the employer to point to a critical mass of job vacancies, to cross-examine the employee to the effect that they were suitable, and to invite the Tribunal to find that she would have been successful in one or other of them, and had acted unreasonably in not applying for them. Mr Gil’s task was made the harder by the fact that the Respondent led no evidence at all of any other jobs, which it contended the Claimant ought to have applied for, and which attracted a higher salary than the GP training role.[93]Moreover, we accept the Claimant’s evidence that she formed the view that, given her age (55), and the fact that she was in one of the highest salary brackets for consultants, her chances of securing a comparable role were poor; organisations are looking to maximise value for money, and would be unlikely to appoint a highly-paid individual, with only a few years left to retirement. Although Mr Gil challenged that in cross-examination (in hypothetical terms), the Respondent led no evidence to support that challenge.[94]The authorities are clear that the burden is on the employer to show that the employee has acted unreasonably in relation to mitigation. The Respondent has not discharged that burden, and the Tribunal declines to apply a reduction to compensation on this basis. Should a Polkey deduction be made to reflect the chance the employment would have ended, had there been no unfairness?[95]The relevant principles of law relating to a Polkey deduction as set out in Software v 2000 Limited v Andrews & Others [2007] IRLR 568 at [54] are, insofar as they are relevant to this case:(1) In assessing compensation the task of the Tribunal is to assess the loss flowing from the dismissal, using its common sense, experience and sense of justice. In the normal case that requires it to assess for how long the employee would have been employed but for the dismissal.(2) If the employer seeks to contend that the employee would or might have ceased to be employed in any event had fair procedures been followed, or alternatively would not have continued in employment indefinitely, it is for him to adduce any relevant evidence on which he wishes to rely. However, the Tribunal must have regard to all the evidence when making that assessment, including any evidence from the employee himself.(3) However, there will be circumstances where the nature of the evidence which the employer wishes to adduce, or on which he seeks to rely, is so unreliable that the Tribunal may take the view that the whole exercise of seeking to reconstruct what might have been is so riddled with uncertainty that no sensible prediction based on that evidence can properly be made.(4) Whether that is the position is a matter of impression and judgment for the Tribunal. But in reaching that decision the Tribunal must direct itself properly. It must recognise that it should have regard to any material and reliable evidence which might assist it in fixing just compensation, even if there are limits to the extent to which it can confidently predict what might have been; and it must appreciate that a degree of uncertainty is an inevitable feature of the exercise. The mere fact that an element of speculation is involved is not a reason for refusing to have regard to the evidence.(5) Having considered the evidence, the Tribunal may determine: (a) That employment would have continued but only for a limited fixed period. The evidence demonstrating that may be wholly unrelated to the circumstances relating to the dismissal itself. (b) That employment would have continued indefinitely.[96]However, this last finding should be reached only where the evidence that it might have been terminated earlier is so scant that it can effectively be ignored.[97]We considered what the chance was that the employment relationship would have continued and, if so, for how long. There was no suggestion by the Respondent that the Claimant would have been dismissed; this is a case where we must try to assess what the chances were that the Claimant would have resigned, had there been no unfairness. This is, by its very nature, a speculative exercise, and we must do the best we can on the evidence that we have heard. We cannot accept either of the percentage figures for which the representatives contended: we consider both of them to be extreme and selfserving.[98]We acknowledge that the Claimant had experienced a period of very considerable dissatisfaction: she had raised grievances against her managers; she had been required to reapply for the DME role. Moreover, she had a ready escape route, in the form of the GP training role, which she had already secured. Clearly there must have been some possibility that she may have resigned.[99]We consider that there are factors, which suggest that the Claimant would not have resigned, had there been no repudiatory breach by the Respondent: she had deep roots in the organisation; she had shown great commitment to it, and consistent ambition to progress within it; leaving the Trust, and giving up her role as a consultant, would involve a substantial cut in salary and a significant change of status.[100]Further, we have already referred to the fact that one of the principal sources of dissatisfaction in the Claimant’s working life within the Respondent had been resolved to her satisfaction: her directorate had been moved to a different department, and she would no longer be reporting to the line managers with whom she was in dispute.[101]On the other hand, we took into account our earlier finding that there was only a 50% chance that the Claimant would have been reappointed to the DME role. We think that is crucial to the Polkey finding. We considered what would have happened had she not been reappointed. She regarded the Respondent’s decision to re-advertise the DME role as wrong. By reapplying for the role, she was effectively giving the Respondent an opportunity to right that wrong. We think it inevitable that, had the Respondent not appointed her, she would have regarded that as at least as serious a breach of trust and confidence as its mishandling of the DME interview. We have concluded that, if a fair and reasonable interview process had been conducted, but the Claimant had not been appointed, she would have resigned in response, and taken up the GP training opportunity. By contrast, had she been reappointed, we consider that it would have restored her faith in the organisation, and she would not have resigned.[102]Having regard to these findings, we estimate the chance that the Claimant would have resigned to be 50%. Consequently, the compensatory award must be reduced by that factor, producing a figure of £43,060.51. Total of the elements set out above 103. £10,668.00 (basic award) + £43,060.51 (compensatory award) = £53,728.51. Grossing up[104]If the combined sum of any basic and compensatory award awarded to the Claimant is greater than the £30,000 provided for in s.401 of the Income Tax (Earnings and Pension) Act 2003, the excess figure will be subject to tax. To avoid the Claimant being disadvantaged, the Tribunal must ‘gross up’ any award it makes over £30,000. This essentially requires adding the sum that is deductible for tax back on to the award, thus cancelling out the tax burden.[105]The correct approach is for the Tribunal to gross up the sum in excess of £30,000 taking into account the employee’s personal allowance and tax banding: Shove v Downs Surgical Plc [1984] 1 All ER 7. Grossing up takes place before the statutory cap on the compensatory award is applied: Hardie Grant London Ltd v Aspden UKEAT/0242/11.[106]Again, in this area, the information provided to us was unsatisfactory. The Claimant had not provided details of her other income (which we understand includes income from property) in the relevant tax year, and thus the full extent to which her existing earnings will take her into the higher tax bands. In closing submissions, the parties invited the Tribunal to take a rough-and-ready approach to the grossing-up exercise, while approaching the exercise in a way which, so far as possible, was favourable to the Respondent, on the basis that the Claimant ought to have produced this information. Mr Gil indicated that he did not object to the Tribunal’s taking the base salary of £97,787, adding the award to it, and dealing with the taxable elements by applying the applicable tax bands. Mr Ojo did not object to that approach. The Tribunal regarded this as a sensible compromise, which was most likely to produce a just result, without the need for further evidence and/or a further hearing, which we considered would be disproportionate in the circumstances, especially having regard to the amount of Tribunal time which has already been allocated to this case.[107]The award will be received in the 2021/22 tax year. The relevant tax bands are: Personal allowance (PA) £12,570 Basic rate (BR) £12,571 - £50,270 Higher rate (HR) £50,271 - £150,000 Additional rate (AR) £150,000 upwards[108]There is an additional consideration, which is that the personal allowance is tapered for earnings between £100,000 and £125,000. For every £2 earned above £100,000 the PA is reduced by £1 which means that the PA will be reduced to zero once the employee earns £125,140. That reduction to zero will apply in these circumstances, given the combined size of the salary and the award.[109]The calculation is as follows:1 PA = 0 BR (20%) on £37,700, leaving £30,160 net HR (40%) on the next £112,300, leaving £67,380 net Note that the HR tax band has effectively been widened because the PA is now zero. The HR tax band now stretches between £37,700 and £150,000 [AR (45%) on anything over £150,000, which does not apply here] The gross salary is £97,787 The first £37,700 of the salary will be taxed at BR (20%) The balance of the salary (£60,087) will be taxed at HR (40%), giving a net figure of £36,052.20 Deduct that net figure from the total net figure referable to the HR band (£67,380); the balance (£31,327.80) is the maximum net amount of any Tribunal award which would be taxed at this rate The total Tribunal award is £53,728.51. The first £30,000 will be tax-free. The taxable balance is £23,728.51. Since that is less than the £31,327.80 maximum, it will fall into the HR tax band, and will be taxed at 40% 1 Based on Example 2, p.37, Employment Tribunal Remedies Handbook 2021, Bath Publishing, tax bands adjusted for 2021/22 rates Consequently £23,728.51 should be grossed up by 40%, producing a figure of £39,547.52 (i.e. £23,728.51 ÷ 0.6)[110]The Respondent shall pay to the Claimant the total sum of £69,547.52 (i.e. £30,000 (tax free) + £39,547.52 (the grossed-up balance of the award)).[111]The statutory cap has no application in this case.