Miss G H D C Adrade v East London NHS Foundation Trust: 3202447/2019
EMPLOYMENT TRIBUNALS
Case No 3202447/2019
Between
Miss G H D C AdradeClaimantEast London NHS Foundation TrustRespondent
Before
Employment Judge HousegoIn person for claimantDate 9 June 2021
JUDGMENT
[1]The Claimant was employed by the Respondent from 06 September 2016 until 30 June 2019. Accordingly, she has the two years’ qualifying service needed to bring a claim for unfair dismissal.[2]On 30 June 2019 the Claimant was dismissed by reason of redundancy.[3]The existing case management orders remain to be followed, and the case remains listed for hearing 2-5 February 2021 (which may need to be a virtual hearing).
REASONS
Background, purpose of hearing and parties’ positions[1]This hearing is to decide: a) The Claimant’s correct legal status during the period from 6 September 2016 to the end of December 2019. The Claimant alleges she was an employee throughout. The Respondent disputes this. b) If the Claimant was an employee at any point, the date on which her employment started and ended. c) Whether by the date of the Claimant’s dismissal, she had been continuously employed for a period of not less than two years so as to qualify to bring a claim for unfair dismissal and a claim for a redundancy payment. d) Whether the Claimant was dismissed by reason of redundancy at any point.[2]Ms Andrade claims to have sufficient service as an employee to bring a claim for unfair dismissal. She asserts that this was between 06 September 2016 – 31 December 2019. The Respondents do not agree.[3]It is common ground that Ms Andrade worked for the Respondents as part of their bank of people who work as and when needed and available, starting in 2006. She was a healthcare worker. On 06 September 2016 she started working on an NHS funded project with the acronym CQUIN, standing for Commissioning for Quality and Innovation. She says that this was the start of her employment and that she was employed on a fixed term contract, which was continuous with one starting on 09 March 2018, but was never given a paper document. The Respondent says that she remained a bank worker, and signed a new bank agreement when starting that role.[4]There was then a period of employment under a fixed term contract. This commenced on 09 March 2018. It was for 12 months, expiring on 31 March 2019. It was extended by two months and then for a further month to 30 June 2019. It is not in doubt that Ms Andrade was an employee for that period. She started as a Band 4 project manager in the CQUIN team of two (her and Sheena Nixon) then in February 2019 moved to a Brexit project until the end of her fixed term and was then briefly in the estates department after 30 June 2019.[5]Ms Andrade last worked for the Respondent on 05 July 2019. She remained on the bank until 31 December 2019, but was signed off as unfit for work by reason of stress. She says that she remained employed after her fixed term contract ended, as she says she was promised a further 6 months, then reduced to 4 and to a bank arrangement, and relies on her claim that there was a promise of a 6 month term.[6]The Respondent says that Ms Andrade accepts that she was dismissed on 30 June 2019, so that she was not an employee after that, and reverted to being a bank worker.[7]The Respondent says that she was only an employee for the time she was on a fixed term contract, and that for the rest of the time she was a “limb b worker” on an ad hoc bank arrangement, employed by the day, and without continuity of service as there were breaks of more than a week, which they say were not which absences from work in circumstances such that, by arrangement or custom, she was regarded as continuing in the employment of his employer for any purpose1 (which would bridge the gaps if so). Evidence[8]I heard oral evidence from Ms Andrade, and from Sheena Nixon, who was also, from 2018, on a fixed term contract on the CQIUN project, and who was Ms Andrade’s manager, and from Mason Fitzgerald, a senior manager to whom Ms Nixon reported (Director of Performance and Planning). I was given a bundle of documents from the Respondent of 314 pages. Ms Andrade objected that some documents were omitted and sent in her own bundle of 236 pages. Mr Adjie was very helpful in identifying the overlaps and in directing me to redacted copies in the Respondent’s bundle where Ms Andrade referred to documents in her bundle where they contained without prejudice matters. Ms Andrade also sent in copies of her bank statements immediately before the hearing. Sensibly, Mr Adjei took no issue with that late delivery: the point of them was to demonstrate when money arrived in Ms Andrade’s account from the Respondent, Ms Andrade not accepting that there was a complete record of payslips. Submissions[9]I made a full note of the submissions in my typed record of proceedings, and they find their way into my reasons, below.
Findings of fact
[10]Ms Andrade started working for the Respondent in 2006 when an undergraduate student. She enjoyed the work, and carried on after she graduated. She signed a standard bank employee form, and worked under it for 10 years. She worked shifts in a caring capacity in all (or almost all) of the Respondent’s establishments.[11]As a bank worker, Ms Andrade did not have continuity of employment. She was free to accept or reject any shift, and not obliged to make herself available for work for any particular times. She was not an employee save when at work, and she does not say that this gave her any rights as an employee with continuous service (and nor was she continuously employed).[12]The CQUIN project was separately funded by the NHS to the extent of £12.5m a year across the country. Ms Nixon acquired the role of running that project for the Respondent, at Band 8c. She had been an independent contractor at first, but with the change to IR35 rules had become a bank employee in 2017, before also obtaining a fixed term contract in 2018.[13]From 06 September 2016 Ms Andrade became involved in CQUIN as an administrator. She had extensive working knowledge of the Respondent’s places of work, and a degree in a relevant discipline.[14]On 05 August 2016 Ms Nixon emailed Ms Andrade (72): 1 S212(3)(c) Employment Rights Act 1996 “Again, thank you for the conversation yesterday and I’m very much looking forward to working with you. By way of confirmation, please see below: -Your role will be CQUINN project support at a Band 4 -The hourly rate for you is £11.29, which translates into £423.375 per week (37.5 hours). - Your start date will be 6th September at 9.00, Alie St. Ring me when you arrive and I will meet you in the foyer. You’ll be located on the 1st floor in Alie Street. -Further information on CQUINS can be found here: [website address] I recommend you read the CQUIN guidance to give you and overview. I am on leave from today until 22 August. Please liaise with Mohit if you have any urgent queries while I am away, otherwise liaise with me by email or phone [number given] today or from 22nd August onwards. Have a wonderful holiday. Best wishes, Sheena”[15]On 08 September 2016 Ms Andrade signed a new bank worker’s form (74-75). The Respondent was not able to say why one was required, as she had been a bank worker for 10 years. Ms Andrade says that this supports her claim that this role was on a different basis.[16]Ms Andrade submitted timesheets and was paid on the PAYE basis getting standard NHS payslips. These were headed “Bank Admin Grade 4”. The payslips show that Ms Andrade worked almost every week. Where there were gaps in payslips, Ms Andrade was able to show that her bank statements showed money coming from the Respondent that can only have been pay. For about half a year there was a gap in the computer records as the payslips were done manually. The payslip (132) for week 35 in 2017/2018 – to 26 November 2017 – shows Ms Andrade going up to Band 5 and an annual pay (fte) of £21,138, up from £18,087.[17]The payslips do not record an even flow of money. I accept Ms Andrade’s evidence that this reflected an uneven processing of timesheets rather than an uneven flow of working time. Many of her timesheets show her working 45 hours a week, which she says (and I accept) she never did, others only 25 hours. In a week where she worked 30 plus hours some time would not be processed in time for the pay run, only for the next week all the timesheets to be processed in time, plus the one missed from the previous week, hence an apparent variance in working pattern.[18]Ms Andrade worked autonomously: she reported to Ms Nixon and was directed by her, but (by agreement) she worked a day a week at home, and Ms Nixon was content for Ms Andrade to choose which day. Ms Nixon said that Ms Andrade worked 3-4 days a week in total, every week, and had projects to complete.[19]From 20 July 2017 - 04 September 2017 Ms Andrade went home to Cape Verde to prepare for her forthcoming nuptials. There is no documentation about how this came about, other than a friendly email from Ms Nixon before she left.[20]The fixed term contract commenced on 09 March 2018. The offer was first dated 14 May 2018 (156-8), at £27,220 a year based on 30 hours a week. This was a second pay rise for Ms Andrade. The contract document originally prepared was dated 02 July 2018 (163). It was a contract at 30 hours a week, but this was increased to 37.5 hours a week, confirmed by Ms Nixon to human resources on 10 July 2018, with effect from 01 June 2018 (159). Before that Ms Andrade had worked fewer hours. She was effectively full time. She had no other employment or work.[21]On 27 November 2018 Ms Andrade raised a grievance against Ms Nixon (MF ws para 9). This apparently related to Ms Andrade’s wish to become a Band 7: the detail is not relevant to the issues I have to decide and they are not set out in the witness statements, other than that Ms Andrade described Ms Nixon as “an abusive manager” in an email of 28 June 2019 to Mr Fitzgerald and others (255). Mr Mason hoped to resolve this by mediation, but the Trust took so long to organise it that Ms Andrade, having agreed to this originally, changed her mind in February 2019.[22]On 11 March 2019 Mr Mason wrote to Ms Andrade (177), referring back to a discussion on14 January 2019 about the ending of the fixed term contract on 31 March 2019, and discussed further on 06 March 2019. The letter records that funding for CQUIN had been halved for the financial year 2019/2020. She was placed on the “at risk” (of redundancy) register. He extended her fixed term contract by two months so that she might seek project work outside CQUIN. He records that he offered a move to a project called “Agile” but that she had declined it, and asked to be funded for a course, “Prince2”.[23]On 27 February 2019 Mr Fitzgerald moved Ms Andrade in a supernumerary role to a short term Brexit project (206). This was in response to a request to do so made by Ms Andrade’s union official. I accept his evidence that he had declined to do so when the grievance was raised (November 2018) because he hoped the relationship between Ms Andrade and Ms Nixon could be repaired, but when Ms Andrade declined to continue with mediation and her union officer requested it he saw no alternative. I do not find that this was motivated by any wish to remove Ms Andrade. I so find on consideration of Mr Mason’s extensive efforts to find Ms Andrade a role so that she did not have to leave on 30 June 2019.[24]On 25 March 2019 Mr Fitzgerald wrote to Ms Andrade again (183-184). He said that he was to reduce the CQUIN lead post by half (Ms Nixon’s role) and to remove Ms Andrade’s post entirely, because of the 50% funding reduction. He noted Ms Andrade’s wish to work in project management, and said that he had obtained funding approval for Prince2 training, as she had asked. Her work on Brexit preparation was continuing, which might continue, depending on national matters. She had priority for suitable alternative roles. Mr Mason was not happy that Ms Andrade had put in for another course (QI coaching) and stated that this had been discussed with him, when it had not: he would not support that.[25]Before the funding was halved Mr Mason put in post someone to undertake the role Ms Andrade had fulfilled before being moved, on a 6 month secondment.[26]The “at risk” priority for job vacancies extends to jobs at the same band as the person was on, or the band below, with ring fenced pay for 3 years. Ms Andrade sought a Band 7 role, but this was outwith the policy. Ms Andrade claimed to be Band 6, but this was only for the very short time she was working with the estates team and expressly as a bank role: a matter of a few days. She was contracted at Band 5.[27]Mr Mason extended Ms Andrade’s contract by a further month, to the end of June 2019, to work in a supernumerary capacity in the estates team, where there might be project work to be undertaken. “Supernumerary” meant that her salary cost came from his budget, not that of the estates team. From 01 July 2019 Ms Andrade was paid at Band 6 rate. Mr Mason said that this was in recognition for the type of work usually done by an Estates Project Manager. An email of 24 June 2019 (250) to Ms Andrade and everyone else involved from the resourcing manager said: “I can confirm that following my discussion with Mason, we agreed that you will be paid at band 6 substantively from 1 June 2019 until 30 June 2019. I completed a change form to reflect this which is being actioned by payroll for this month pay. You will then be set up on the bank from 1 July 2019 as band 6. The bank team is currently processing this and you receive a new assignment number before then.”[28]Ms Andrade found the issue of becoming a bank employee so stressful that she went off sick on 05 July 2019 and did not return.[29]No-one was sure where the date of 31 December 2019 had come from, and I make no finding of fact in regard to it.
Conclusions
[30]The role of working in CQUIN was completely different to the previous work undertaken by Ms Andrade for the Respondent. It was administrative, not caring. Nothing turns on that, per se, but it may account for the signing of the new bank form.[31]Ms Andrade says that the human resources team said they would take time to get a contract to her, and that the bank form was necessary for her to be paid, pending the preparation of the fixed term contract she says she was offered and accepted. It is correct that the human resources department was dreadfully slow in getting a standard form fixed term contract to Ms Andrade in 2018 (as the Respondent accepted and for which it apologised). Ms Andrade had to chase the human resources person (who worked on the same floor of the same building) daily for 150 days until she finally got her fixed term contract of employment. Ms Andrade says this accounts for the absence of a fixed term contract in 2016.[32]However, Ms Andrade’s internal correspondence claiming that she had a fixed term contract before 09 March 2018 does not predate 09 April 2019 (188), and so lacks the weight of anything contemporaneous. In particular she made no request for her fixed term contract at any time between 06 September 2016 and the offering of a fixed term contract in early 2018.[33]Ms Andrade’s witness statement stated: “The post was initially advertised as a six months fix-term contract band 5 post but during my interview with the Director, Mohit Venkataram (Commercial Director and responsible for CQUIN at that time), he has insisted that I start at a band 4 instead, promising that this will be just for the first six months so we both have an idea of how things goes and that if after six months CQUIN contracts were to continued and renewed for another year and we were both happy to continue working with CQUIN then I my contract would also be renewed for the next financial year and then I could start at the advertised band 5.”[34]The difficulty with this is that there was no advertisement produced. Ms Andrade was paid by the hour and worked with timesheets, whereas when on her fixed term contract had a salary. I find that she was told the project was NHS funding dependent and was likely to be for 6 months initially at band 4, but if all went well, it would be continued and at band 5. That was what happened. When funding looked secure there were fixed term contracts for Ms Nixon and for Ms Andrade. Ms Nixon accepted that she was not on a fixed term contract until 09 March 2018. There is no reason why Ms Andrade would be on a fixed term contract and Ms Nixon, to whom she reported, would not be.[35]There is nothing else to suggest that Ms Andrade had a fixed term contract from 06 September 2016. There was discussion about a fixed term contract in 2018, for both Ms Nixon and Ms Andrade. Ms Nixon did not have one before Ms Andrade, and the discussions and letters do not make any reference (as might be expected) to a preceding fixed term contract.[36]Accordingly I find that Ms Andrade was not employed on a fixed term contract before 09 March 2018.[37]Mr Adjei suggests that as there was no fixed term contract and there was a bank arrangement for payment that Ms Andrade must fail to satisfy me that she was an employee before the start of the fixed term contract. That does not follow (as was discussed in the hearing), as although plainly Ms Andrade’s situation changed on 09 March 2018 to becoming a fixed term employee, it does not follow that if she was not, as she claimed, a fixed term employee before 09 March 2018 she had to be a bank employee, although that was what she was signed up as (and recorded as such on her payslips). The documentation is not definitive: it is to the reality of the situation that I must look2. 2 Autoclenz Ltd v Belcher & Ors [2011] UKSC 41, para 35 “the relative bargaining power of the parties must be taken into account in deciding whether the terms of any written agreement in truth represent what was agreed and the true agreement will often have to be gleaned from all the circumstances of the case, of which the written agreement is only a part. This may be described as a purposive approach to the problem. If so, I am content with that description.”[38]Bank workers are employees for the day, usually, or the week. It is the absence of mutuality of obligation and the breaks in employment that preclude them acquiring 2 years’ service.[39]The CQUIN contract was not, however, like bank work where people are booked by the shift, or maybe by the week. This was a long-term project, initially of six months with the hope and expectation that it would continue after that, as it did. No one other than Ms Andrade and Ms Nixon worked on the CQUIN project. It was Ms Andrade’s job to work on the various projects that CQUIN funded, along with Ms Nixon, and no-one else. They did more and more work until they got fixed term contracts of employment, and in Ms Andrade’s case at a higher band.[40]A bank worker can accept or reject the offer of a shift. Ms Andrade had an ongoing series of projects to undertake. No-one else was available to do that work. Ms Nixon had work enough of her own. There was the expectation of 6 months’ work, and then a continuation of that long-term pattern of work. Ms Andrade’s job was as Ms Nixon’s sole assistant in the CQUIN project work. Her emails had a job title – “CQUIN Support Lead” (eg 154). She was integrated into the organisation. She had her own direct dial telephone number, stated on her emails. This was the job of an employee.[41]It is not impossible to be long term bank staff, just as one can be long term agency staff3 but the difference between agency staff and Ms Andrade is that the relationship was solely the Respondent and Ms Andrade.[42]Mr Adjei laid stress on an asserted lack of mutuality of obligation, and on breaks in service exceeding one week, which would prevent continuity building up.[43]The work of Ms Andrade and Ms Nixon was fairly intense: Ms Nixon firmly agreed with this assessment. Ms Andrade worked every week on it, unless on holiday. She says that she took no sick leave, and the Respondent is not able to gainsay that. (So that there is no record of any sick pay is not a point indicating that there was not an employment relationship.)[44]If Ms Andrade had ceased to come to work, then this would not have been acceptable to the Respondent. If the Respondent had arbitrarily said to Ms Andrade that she was being replaced in her role, she would justifiably been unhappy about that. There was a mutual expectation to the extent of obligation which goes to the root of the relationship. There is no possibility that Ms Andrade was in business on her own account as a contractor, and Ms Nixon had needed to cease being so for IR35 reasons. There is the necessary mutuality of obligation.[45]Mr Adjei points to a 6 week gap (20 July 2017 - 04 September 2017) when Ms Andrade went home to Cape Verde to prepare for her forthcoming nuptials as evidence of a break in continuity, and to other holidays of over a week. Mr Adjei says that Ms Andrade told the Respondent that was what she was doing, and did not ask permission. There is no documentation either way 3 As in James v London Borough of Greenwich [2008] EWCA Civ 35 about how it was arranged or communicated. Ms Nixon was supportive of Ms Andrade doing this. Ms Nixon sent her off with an email headed (151) “Have a lovely August!” and with a supportive message. At the time they worked collaboratively together. It was not said that Ms Nixon would have needed Mr Fitzgerald’s permission to grant Ms Andrade time off. Ms Andrade was paid by the hour worked and not by the month, so there was no cost to the Respondent in Ms Nixon agreeing to that absence. It was discussed and agreed between them. It was not a unilateral decision by Ms Andrade. (Ms Andrade said in her submissions that there had been a similar absence during her fixed term employment: this was not anywhere in the evidence and I do not take account of that assertion.)[46]Given that Ms Andrade was involved in ongoing project work there was the clear expectation on both sides that she would return and finish the project on which she was engaged (or return to start a new one) every time there was an absence (and she did so).[47]Accordingly I find that there was mutuality of obligation to provide and to undertake work, at a fixed rate of hourly pay, and with continuity covering any breaks because of the effect of S212 of the Employment Rights Act 1996. Ms Andrade was an employee, not a daily bank worker, from 06 September 2016 until her fixed term employment commenced, and then until the end of that (extended) fixed term contract of employment on 30 June 2019.[48]I have concluded that Ms Andrade’s employment did not continue after 30 June 2019, and that was because her employment ended by reason of redundancy. It was always made clear that the estates role would be as a bank employee. It may be that in time that would have been seen in the same way as I decide the post 06 September “bank” employment was continuous employment, but that is not possible in a 5 day period.[49]Ms Andrade’s substantive post had been removed because of 50% reduction in funding for the post for which she had been employed: the fixed term of her contract had ended, and the secondment was to a short term post. Someone seconded has either to be returned to the original post or found another role, and neither was possible. I accept that the “at risk” policy does not extend to higher roles: Ms Andrade has no good claim that it was unfair not to promote her on the expiry of her fixed term contract (and Mr Mason did arrange for her to be raised to a band 6 level in estates department from 01 July 2019).[50]I am not required to decide whether the redundancy was fair or unfair, but my findings of fact as to the way this occurred may be relevant to that decision in due course: 50.1. The fixed term contract ended on 30 June 2019, by reason of redundancy. 50.2. Ms Andrade was substantively employed as a Band 5 in the CQUIN team of 2, with Ms Nixon her line manager (at Band 8c). 50.3. The funding for the CQIN team was reduced by 50% for the 2019/2020 financial year. 50.4. Ms Nixon’s role in CQIN was halved and she was given half a role in another area to make up a full role. 50.5. Ms Nixon was a higher band than Ms Andrade, so that it was logical for her to be retained. 50.6. There was no work for Ms Andrade to do in the CQIN department (which was reduced to ½ a person). 50.7. The “at risk” priority for roles was for the same Band (5) or one below. 50.8. Mr Mason obtained approval for training requested by Ms Andrade shortly before her employment ended. 50.9. Mr Mason arranged for Ms Andrade to work as a Band 6 Project Manager in the estates department on a bank basis as supernumerary in the hope that she might find long term work there.[51]The parties are reminded that there are directions made at a case management hearing on 09 March 2020, sent to the parties on 24 April 2020 and amended by letter of 14 May 2020. If either party considers that any direction needs to be varied (including as to the length of the hearing) application should be made (by email, copying in the other side).[52]That participation by the Respondent may include cross examination of the Claimant as to the extent of her loss and the making of submissions as to remedy to be awarded.” 5. I make the following Case Management Orders: 5.1. No later than 4 weeks before the hearing the Claimant is to send a detailed witness statement with supporting documents to the Tribunal, and copied to the Respondent (for information only). 5.2. No later than 4 weeks before the hearing the Claimant is also to serve on the Respondent a detailed schedule of loss, with full calculations shown. 5.3. She is at the same time to send copies of all the documents on which she relies to establish her loss. 5.4. All these documents must be sent electronically, and not in paper form. 5.5. No later than 2 weeks before the hearing the Respondent may send a counter schedule of loss and supporting documentation (again electronically and by email) to the Claimant and to the Tribunal. 6. The Employment Tribunal conducting the hearing will make any other directions required on the day of the hearing. 7. The parties are put on notice that the hearing is likely to be held virtually.
The evidence
[53]At this point Ms Stewart’s line manager expressed concern about losing a valuable secondee and that Ms Nixon had not followed the respondent’s recruitment procedure. In light of this Ms Nixon took advice from HR, withdrew the offer to Ms Stewart and took steps to arrange a formal internal advertising and recruitment process.[54]Ms Nixon clearly told the claimant about the band 7 vacancy and this role as her email of 24 September 2018 to the claimant [Hearing Bundle p892] shows the claimant assisting in advertising the role and the claimant was copied into an email that contained an advert for the post on 25 September 2018 [HB684-685]. In addition, the claimant’s email to Ms Nixon and Mr Fitzgerald of 23 October 2018 [HB497] recognised that she was informed of the role and had been asked to assist in processing the paperwork. This contrasted with the claimant’s grievance where she says was not fully informed or correctly informed of the vacancy [HB825].[55]The post was then advertised on the respondent’s intranet for a week [HB461] and the claimant had access to this so additionally should have been aware of it.[56]The claimant did not apply for band 7 role and following the recruitment process, Ms Stewart was appointed. She commenced her new role on 10 October 2018.[57]When the CCQUIN role was advertised to staff, and there was a shortlisting and interview process which involved 2 independent recruiters in addition to Ms Nixon. These were the Lead Nurse for Tower Hamlets (a black male), and a patient representative (an Asian female). There were 2 applicants for the position, and both were interviewed. Ms Stewart was unanimously determined the most suitable candidate and was appointed.[58]Ms Stewart was sufficiently experienced because she had previously led CQUINs. This was stated in her cv [HB912] and her grievance interview [HB1020]. Ms Stewart was not a friend of Ms Nixon or the other 2 recruiters. This was denied by Ms Nixon and there was no evidence presented to support the claimant’s contention in this regard, which was mere speculation. The claimant’s complaints of adverse treatment and/or bullying[59]On 22 October 2018 the claimant telephoned Ms Nixon to express concerns regarding the CQUIN band 7 appointment. The claimant contended that when she expressed her concerns to Ms Nixon regarding the band 7 role, Ms Nixon replied: “It is what it is and if you are not happy you should find another job”. Ms Nixon denies saying this and states that she told the claimant that if she was unhappy and wanted to leave, then she would support her to find another role. As this allegation was raised some time after the events in question, we do not regard Ms Nixon’s vague recollection of the conversation as suspicious. The claimant was more unclear, which for someone ascribing discriminatory conduct to that conversation is less credible. We prefer Ms Nixon’s evidence in this regard as, where there is a straightforward conflict of evidence, we regard the evidence of Ms Nixon’s as being more credible and reliable. The claimant had originally said that the allegation at 21.1(a) occurred in November 2018, but she changed this in cross-examination. In the claimant’s grievance investigatory interview of 2 April 2019, the claimant attributed Ms Nixon’s comment of “it is what it is and if you are not happy you should find another job” as arising in a return-to-work interview on 7 November 2018.[60]The claimant followed this conversation by email on 23 October 2018. In summary the claimant considered that she was suitable for the role and that Ms Nixon should have encouraged her to apply. Ms Nixon said in evidence that whilst the claimant had project management experience, this was at two band levels below the vacancy. Ms Nixon said, which we accept, the claimant’s role was primarily administrative, and that the claimant did not have detailed experience in the clinical aspect of this role. The list of issues referred to the claimant as otherwise not having the opportunity to apply for the role; however, as the role was advertised and as the claimant knew of the vacancy, this part of the claimant’s allegation is inaccurate and misleading. The claimant acknowledged in her email of 23 October 2018 [HB497] that she had been told about the vacancy and she had been asked to assist in preparing paperwork for the role. Ms Nixon contended that the claimant was upset that Ms Nixon did not actively encourage her to apply for the band 7 post. We assessed that the claimant was demanding and self-serving, it would be very easy for Ms Nixon to display some frustration about the claimant’s behaviour at this time. However, Ms Nixon was patient and supportive and resolved to discuss this in detail at their next one-to-one meeting. Ms Nixon denied saying the words that the claimant attributes to her. Even if she did say these words (which we do not accept that she did say), Ms Nixon’s alleged blunt response does not easily read as discriminatory language. It appears to be more attributable to an intemperate response to some perceived winging about not being top of the list. However, we do not need to make such a determination because the claimant had not made an allegation of discrimination or had not mention discrimination of any kind at this stage.[61]On 23 October 2018 the claimant’s GP signed her off work until 6 November 2018 with work related stress. On 7 November 2018 the claimant met Ms Nixon for a return-to-work meeting [HB501]. The claimant told Ms Nixon that she would like to take more of a lead in CQUIN work, this was accepted by Ms Nixon and a plan of work was agreed on 12 November 2018. By way of example Ms Nixon encouraged the claimant to go to the flu CQUIN meeting to improve her project management skills; however, the claimant criticised Ms Nixon (and also claimed victimisation) when, unknown to Ms Nixon, one of the meetings clashed with a Springboard meeting. The claimant accepted in evidence that this incident was a one-off occurrence.[62]The claimant was signed off by her GP again with work-related stress between 13 and 27 November 2018.[63]On 27 November 2018 the claimant lodged a grievance against Ms Nixon. The claimant complained about: her non-application for the CQUIN band 7; the manner in which her work tasks were organised; flexible working issues and her caring responsibilities; and the effect that this was having on her health. The claimant also complained about her lack of Prince 2 training.[64]On 27 November 2018 the claimant emailed Mr Fitzgerald regarding her return to work [HB512]. She stated: I am writing to request your permitting to partially abstain from work in the meantime while my grievance notification is being considered, as I do not feel that going back to work under the same conditions will be helpful and/or productive to either of the parts.[65]Mr Fitzgerald replied the same day [HB512] stating; In line with the grievance policy, normal working arrangements should continue as much as possible, so I can’t agree to your request at this stage. I will review this with Shefa tomorrow and get back to you if this changes.[66]Mr Fitzgerald discussed this with Ms Begom of HR the next day and advised the claimant that she should attend her work base at the respondent’s headquarters [HB511].[67]Upon the claimant’s return to work on 28 November 2018 she was asked by Ms Nixon to assist in data collection for an audit, which was the type of work that the claimant would normal have undertaken, copying data from printouts to an online form. Because of a looming deadline, the work was the focus of the CQUIN team, with Ms Nixon and Ms Steward engaged in completing the return. There was no alternative work for the claimant at this time and she was merely asked by Ms Nixon to help with work that was normally part of her role; and this was work that Ms Nixon and Ms Steward were also undertaking. There was a deadline for the department but not for the claimant and because the claimant had just returned from sick-leave Ms Nixon instructed the claimant merely to do what she felt she could manage.[68]At the end of the day, the claimant complained to Mr Fitzgerald about the volume of work and the short deadline [HB522]. Mr Fitzgerald replied to the claimant’s email the next morning asking if she was available to discuss her email. The claimant was out of the office for the next 2 working days so they met on 4 December 2018 to discuss the email and the grievance. At this meeting the claimant agreed that HR would undertake a fact-finding investigation in respect of the CQUIN band 7 job and she agreed to mediation in respect of her relationship with Ms Nixon.[69]The claimant contended that Ms Nixon said to her in January 2019 that “we have decided you are not going to work with City & Hackney team anymore”. In crossexamination the claimant said that the comment was made at a meeting on 12 November 2018 and not in January 2019. This was a meeting that the claimant previously said that she had been excluded from [HB833]. Ms Nixon explained the business rationale for this decision convincingly and her decision had nothing to do with the claimant’s having raised allegations of discrimination. Ms Nixon was merely informing the claimant at a work meeting that Ms Stewart was going to take over the work with City and Hackney Trust. There were strong objective reasons for redistributing this work as Ms Stewart’s clinical expertise and knowledge was greater than the claimant’s and Ms Stewart had a more recent relationship with the City and Hackney clinical team.[70]During February 2019, the claimant contended that Ms Nixon spoke to her harshly saying “you should have booked the meeting room, I don’t have the time to walk around looking for meeting rooms with you, you know. Go and find a room and them come and tell me”. Ms Nixon accepted that she spoke sharply to the claimant on one occasion when their usual meeting room was occupied so that their daily 15-minute meeting was disrupted. Ms Nixon denied that she raised her voice or shouted at the claimant, which we accept. We accept Ms Nixon’s explanation that it was a busy day, she (i.e. Ms Nixon) had deadlines and she had been accustomed to the meeting room being free for the daily briefing. Ms Nixon was frustrated with the claimant (and accords with our impression of the claimant’s difficult attitude over the course of the hearing). The claimant’s grievance identified 3 individuals she said witnessed Ms Nixon shout at her but when interviewed they did not corroborate the claimant’s version of events. These are the type of exchanges that happen regularly in workplaces throughout the country. If Ms Nixon’s response was intemperate, which it may well have been, then this was a trivial incident. We accept Ms Nixon explanation why she was frustrated and cannot see how this could be connected to a protected act.[71]The claimant frequently arrived at work late, this was usually between a few minutes and up to 20 minutes. This was not disputed by the claimant and Ms Nixon said in evidence that she did not take issue with the claimant’s lateness as she expected the claimant to make up this time.[72]On or around 11 January 2019, the claimant attended a mentoring meeting with the respondent’s Chief Executive, Ms Navina Evans. According to the claimant’s account, she used this meeting as an opportunity to raise her complaints about Ms Nixon and others. According to Ms Begom, Ms Evans was not willing to speak about these matters in what was supposed to be a 30-minute mentoring meeting particularly as the claimant had raised these complaints in a grievance. The claimant alleged that Ms Begom and Ms Evans refused to reply to emails about her working relationships and health, yet she was not able to take us to the emails that she said Ms Evan and Ms Begom refused to reply to. The Claimant’s dismissal[73]Employment Judge Housego made the following findings of fact following the preliminary hearing of 14 October 2020. Judge Housego referred to various pages of the hearing bundle prepared for the preliminary Hearing which we do not quote to avoid possible confusion. We have reviewed Judge Housego’s findings of fact, which we adopt.73.1 On 11 March 2019 Mr Fitzgerald wrote to the claimant, referring back to a discussion on 14 January 2019 about the ending of the fixed term contract on 31 March 2019, and discussed further on 6 March 2019. The letter records that funding for CQUIN had been halved for the financial year 2019/2020. She was placed on the “at risk” (of redundancy) register. He extended her fixed term contract by 2 months so that she might seek project work outside CQUIN whilst still in the respondent’s employment.73.2 On 27 February 2019 Mr Fitzgerald moved the claimant into a supernumerary role on a short-term Brexit project. This was in response to a request to do so made by the claimant’s trade union representative. Judge Housego accepted Mr Fitzgerald’s evidence that he had declined to do so when the claimant’s grievance was raised (in November 2018) because he hoped the relationship between the claimant and Ms Nixon could be repaired, but when the claimant declined to continue with mediation, and her union officer requested it, he saw no alternative. Judge Housego specifically did not find that this was motivated by any wish to remove the claimant. He said that he made this finding of fact on consideration of Mr Fitzgerald's extensive efforts to find the claimant a role so that she did not have to leave on 30 June 2019.73.3 On 25 March 2019 Mr Fitzgerald wrote to the claimant again. He said that he going to reduce the CQUIN lead post by half (Ms Nixon's role) and to remove the claimant’s role entirely, because of the 50% funding reduction. He noted the claimant’s wish to work in project management, and he said that he had obtained funding approval for the Prince2 training she had requested. The claimant’s work on Brexit preparations was continuing, and might continue further, depending on national matters. The claimant had priority for suitable alternative roles.73.4 Before the funding was halved Mr Fitzgerald had approved in post someone who could undertake the role the claimant had fulfilled before being moved on a 6-month secondment. This was Ms Stewart.73.5 The “at risk” priority for job vacancies extended to jobs at the same band as the person was on, or the band below, with ring-fenced pay for 3 years. The claimant sought a band 7 role, but this was outside the policy. The claimant claimed to be band 6, but this was only for the very short time she was working with the estates team, expressly in a bank role; a matter of a few days. The claimant was contracted at band 5.73.6 Mr Fitzgerald extended the claimant’s contract by a further month, to the end of June 2019, to work in a supernumerary capacity in the Estates team where there might be project work to be undertaken. “Supernumerary” meant that the claimant’s salary costs came from his budget, not that of the Estates team. From 1 July 2019 the claimant was paid at band 6 rate. Mr Mason said this was in recognition for the type of work usually done by an Estates Project Manager. An email of 24 June 2019 to the claimant and everyone else involved from the resourcing manager said: I can confirm that following my discussion with Mason, we agreed that you would be paid at band 6 substantively from 1 June 2019 until 30 June 2019. I completed a change form to reflect this which is being action by payroll for this month pay. You will then be set up on the bank from 1 July 2019 as band 6. The bank team is currently processing this and you will receive a new assignment number before then.[74]Following the hearing of 14 October 2020, Judge Housego determined that the claimant was engaged on the CQUIN project as an employee and indeed she had been an employee of the respondent from 6 September 2016. He determined that the claimant’s employment did not continue after 30 June 2019, because her employment ended by reason of redundancy. Judge Housego went on to determine that the claimant's substantive post had been removed because of a 50% reduction in funding for the post for which she had been employed. The claimant’s fixed term contract had ended and her commitment to the Estates role was a short-term post as a bank employee. Judge Housego specifically determined that claimant had no good claim that it was unfair not to promote her on the expiry of her fixed term contract to the higher role in the estates team as the “at risk” policy did not provide for this. So far as the fairness or unfairness of the claimant’s redundancy dismissal is concerned Judge Housego made the following findings:74.1 The claimant’s fixed term contract ended on 30 June 2019 by reason of redundancy.74.2 The claimant was employed as a band 5 in the CQUIN team of 2, with Ms Nixon as her line manager (at band 8c).74.3 The funding for the CQUIN team was reduced by 50% for the 2019-2020 financial year.74.4 Ms Nixon's role in CQUIN was halved then she was given half a roll in another area to make up a full roll.74.5 Ms Nixon was a higher band than the claimant, so it was logical for her to be retained.74.6 There was no work for the claimant to do in the CQIN department (which was reduced to half-a-person).74.7 The “at risk” priority for roles was for the same band [and the claimant was employed at band 5] or one below.74.8 Mr Fitzgerald obtained approval for training requested by the claimant shortly before her employment ended.74.9 Mr Mason arranged for the claimant to work as a band 6 Project Manager in the estates department on a bank basis as supernumerary in the hope that she might find long term work there. Our determination[75]Notwithstanding we dealt with our findings of fact in chronological order, so far as determining the claimant’s claims for clarity our written reasons shall address these in the sequence set out in the list of issues, save that we deal with the out of time issues at the end. Unfair dismissal[76]As stated above, we reviewed the determination of the Preliminary Hearing [HB78- 87] and adopted the findings of Judge Housego as these were substantially in accordance with the evidence we heard.[77]Judge Housego determined that the claimant was an employee of the respondent from 6 September 2016 until 30 June 2019. So, the claimant had a little under 2 years 10 months continuous service. As this exceeds the continuous employment qualification period of 2-years pursuant to s108(1) ERA the claimant acquired the right to bring a claim of unfair dismissal.[78]The claimant was dismissed by reason of redundancy. This is a potentially fair reason under s98(2)(c) ERA. The dismissal took effect from 30 June 2019.[79]Following our findings of fact above and the earlier findings of the Preliminary Hearing, the focus is now whether the respondent took reasonable steps to consider suitable alternative employment for the claimant.[80]Mr Fitzgerald and/or the respondent undertook the following:a. He placed the claimant on the at risk register so that the claimant was given priority to apply for suitable alternative roles in March 2019 [HB624]. Ms Fiona Otoo, Redeployment and Careers Advisor thereafter provided the claimant with assistance from 6 March 2019 and sent the claimant possible alternative roles [HB595-596].b. He extended the claimant’s contract of employment initially by 2 months to give her extra time to find an alternative role [HB624].c. He met with the claimant on 6 March 2019, 21 March 2019 and 7 May 2019. Part of the purpose of these meetings was to consider any proposals from the claimant for alternative roles and to provide assistance [HB624-62, 644-645, 756, 762-763].d. He contacted members of the IT department on 8 May 2019 to see if they had any suitable vacancies [HB761].e. He spoke to Mr John Hill, Director of Estates, which led to a shadowing opportunity for the claimant, which his department paid for.f. He extended the claimant’s fixed term contract by a further month until 30 June 2019 so that the claimant could take up the shadowing opportunity in Estates [HB765, 766],g. Provided outplacement support by means of ½-day of 1:1 interview support in June 2019[HB956-954].[81]Consequently, we determine that the procedure adopted was fair in accordance with s98(4) ERA and in particular the respondent’s dismissal of the claimant was within the band of reasonable responses. Redundancy payment[82]Following the Preliminary Hearing, the respondent paid the claimant redundancy payments totalling £6,080.20 (£5,666.84 on 27 January 2021 and £1,013.36 on 28 January 2021). The claimant has not disputed the quantification of this amount and she was unable to confirm or deny whether this was the correct sum. As we have not been provided with a redundancy pay calculation, we accept that this is the redundancy payment that was due. We note that this sum is considerably in excess of the statutory redundancy calculation and the amount paid represents 1 months’ salary per year of service. Direct race discrimination[83]The claimant’s complaint that Ms Nixon refused to set aside time for training is set out in issue 12 above. We make no findings of fact in respect of this aspect of this allegation as it was difficult to ascertain from the claimant precisely what training she referred to. This lack of precision, and then clarification, was a common feature of the claimant’s complaints. The claimant was not able to identify the statutory and training that she missed. The respondent’s Learning and Development Policy refers to statutory and mandatory training (as distinct from induction and other training) without clearly defining this. The Policy set out that the respondent should undertake a formal Trust-wide review in a Statutory and Mandatory Training Needs Analyses every 2 years. However, this does not indicate a requirement for such an assessment for the claimant’s role. The claimant was not engaged in a clinical, nursing or therapeutic role so we do not see how she was part of the specific staff group or target staff group referred to at various places in the Policy. It is a problem, seemingly created by the respondent that they have a plethora of policies, and this one in particular, is difficult to understand and determine the relevance to this case.[84]In evidence, the claimant broadened this complaint to comprise of training generally, from 2016. The claimant was not able to identify a comparator who was not Black African, so we applied a hypothetical comparator. The claimant’s lack of identifying training courses or training area deficiencies undermined the veracity of this complaint as did the inability of the claimant to identify someone in broadly similar circumstances who had sufficient training provided. Indeed, within CQUIN, neither Ms Nixon nor Ms Stewart had undertaken any mandatory and statutory training. The claimant has not proved any facts from which we could conclude, in the absence of an adequate explanation, that Ms Nixon has committed direct race discrimination.[85]Nevertheless, Ms Nixon’s evidence was that the claimant was given appropriate training and support to undertake the CQUIN work, which we accept. We find no trace of any training deficiency being raised as an issue prior to the claimant’s wider grievance of November 2018. Indeed, prior to October 2018 the relationship between Ms Nixon and the claimant appears to have been supportive and appropriate. It is not conceivable that Ms Nixon would have discriminated against the claimant on the grounds of her race with the provision of certain training yet support other training and mentoring for her. Therefore, this allegation is rejected.[86]The reason that the respondent did not issue the claimant with a contract of employment between 6 September 2016 and 9 March 2018 was because the respondent did not consider her to be an employee during this period. This allegation at 12.2 of the list of issues covers the period the claimant commenced work at CQUIN as an administrator until she was given a fixed term contract. Whereas, the claimant’s employment status was determined at the Preliminary Hearing, there was nothing in Judge Housego’s finds of fact or in his determination to suggest that the respondent was motivated by the claimant’s race to deny her an employment contract between the above dates. The claimant presented no cogent evidence to suggested that the respondent’s belief or motivation about her non-employment status was other than a wrong, but genuinely held, belief.[87]There was some substance to the respondent’s case at the Preliminary Hearing. When the claimant commenced work with CQUIN she signed a new bank workers form and she thereafter submitted timesheets headed Bank Admin Grade 4. Ms Nixon was in a similar position. She was also engaged through the bank and as a result she was also not issued with a contract of employment either. The claimant did not include this complaint with her allegations of discrimination for her initial grievance and was not able to explain fully the basis upon which she subsequently contended this dispute to be on the grounds of her race.[88]Ms Stewart is not an appropriate comparator under s23(1) EqA because there was no dispute that Ms Steward was an employee of the respondent, unlike the claimant and Ms Nixon. The burden of proof has not shifted because we can ascertain no facts that suggest the failure to issue the claimant with the employment contract was less favourable treatment because she was Black African.[89]Allegation 12.3 is not born out by the facts of this case. C was absent from 24 October 2018 until 6 November 2018. Ms Nixon said she held a return-to-work interview on 7 November 2018, and she signed the record of the return-to-work meeting on that day. The claimant signed the return-to-work interview record on 12 November 2018. We reject the claimant’s contention when presented with the signed return-to-work interview record she said in cross-examination that this was not a return-to-work interview. As the factual matrix underpinning this allegation are patiently wrong, the allegation is not sustainable and is dismissed. Direct sex discrimination[90]Allegation 15 is directed against Mr Fitzgerald. The claimant compares herself with Mr Gopal Waddon, a Band 8a Trust-wide Planning & Performance Manager.[91]This allegation should be assessed against the numerous training and mentoring opportunities provided to the claimant as set out by Ms Nixon in her grievance response [see HB867, 893-895].[92]Mr Fitzgerald initially declined Prince2 training for the claimant because he and Ms Nixon believed that the Prince2 training was outdated and not of use in CQUIN work. Indeed, Mr Fitzgerald had previously never used his budget to fund anyone in his teams to undertake Prince2 training. The claimant was offered the opportunity to do Agile training instead [HB529-527, 624] as he regarded this training as more appropriate to the role and methods used in the CQUIN team. Mr Fitzgerald set this out in his email of 12 March 2019 to the claimant [HB622]. The claimant refused Agile training and Mr Fitzgerald subsequently accepted funding Prince2 training for the claimant to assist her in finding work elsewhere. So the claimant was not, in fact, denied Prince2 training and Mr Fitzgerald provided a credible non-discriminatory explanation for a delayed funding of this training which we accept.[93]In any event, Mr Fitzgerald contended that he had made enquiries for the hearing that revealed that Mr Waddon had not undertaken Prince2 training. The claimant was not able to provide any evidence contradicting this, so we accept this evidence, such as it is.[94]The claimant did not really explain what she meant by mentoring on how to ask for advice within the company, so we took this to be general mentoring. The claimant’s mentoring experience was quite extensive and included mentoring from Ms Tanya Carter, the Director of HR [see HB544, 558, 585, 775, 895].[95]So far as Mr Waddon’s mentoring, he merely had a couple of mentoring sessions with Mr Mohit Venkataram (Mr Fitzgerald’s predecessor) but this was on Mr Waddon’s own initiative [HB1057]. Mr Waddon had already been promoted to a Band 8a before being line managed by Mr Fitzgerald so this aspect of the comparative exercise cannot be made out.[96]It follows then that there is no factual basis for the claimant’s allegation of sex discrimination against Mr Fitzgerald, so this allegation of sex discrimination is dismissed. Direct disability discrimination[97]We accept the respondent’s submission that there was no cogent evidence that Ms Nixon or any other respondent official constantly challenged the claimant’s flexible working arrangements. We make no findings of fact in this regard.[98]The claimant was vexed because she requested 2-days working from home and only 1-day per week was approved. The claimant said that she tried to concentrate her daughter’s school and other appointments on this day, despite this being a contractual working day. This represents the claimant’s fundamental disregard of the working from home arrangements. The claimant regarded this flexibility as providing her the opportunity to be paid for undertaking parental activities and responsibilities and fitting work around this. This was not the arrangement agreed with the respondent. Ms Nixon reported ringing the claimant during time when she should have been working at home with work-related queries. The claimant confirmed that she was engaged in non-work activities, so we understand why Ms Nixon was frustrated with the claimant’s behaviour. Ms Nixon had valid concerns about the claimant’s working from home, but these had nothing to with claimant’s daughter’s disability, this was because the claimant was not working at home when she should have been working at home.[99]The claimant provided no specific examples to support this allegation. Indeed, there is no record of complaint until her grievance of November 2018 [HB627] and the only examples of Ms Nixon’s alleged transgression were incidents where the claimant absented herself from work without Ms Nixon knowledge or the respondent’s permission. The claimant said at the hearing that she preferred to re-structure her work pattern on her working from home day, but she provided no information as to how she would monitor her time or co-ordinate with colleagues.[100]It is in such context that Ms Nixon admitted in the grievance process that she had referred to working from home as a privilege (although she accepted that she should not have said this). Ms Nixon had valid concerns about the claimant working from home [HB872, 898] and her lack of HR support over this matter was notable. As there is no factual basis to support this allegation of direct disability this allegation is dismissed. Victimisation[101]The claimant identifies 2 protected acts. The first appears to relate to a telephone conversation with Ms Nixon on 22 October 2018. The claimant complained about Ms Stewart’s CQUIN band 7 appointment. However, the claimant did not raise any allegation of discrimination during this conversation. We make this determination because where the evidence of Ms Nixon conflicts with that of the claimant we do not believe the claimant’s account as Ms Nixon is the more credible and reliable witness. Furthermore, the claimant wrote a fairly lengthy email to Ms Nixon the following morning and, whilst this email raises concerns about her nonappointment, she does not refer to any possible discrimination. It is not credible that the claimant would complain to her line manager about discrimination on 22 October 2018 and not mention this in a follow up email on the same subject of the Recent Band 7 CQUIN Post the following morning.[102]In addition, there is no mention of this protected act in the claimant’s Claim Form and details of complaint; nor in her chronology of events that the claimant provided to her trade union representative [HB587]; nor in her grievance interview (particularly when she made her claims of victimisation [HB858]). This is because this was not the protected act as alleged or at all.[103]The respondent does not dispute that the claimant’s grievance of 27 November 2018 amounts to a protected act under s27(2) EqA. Although there was no express allegation of discrimination in the claimant’s initial grievance, she criticises Ms Nixon in respect equality and diversity issues and also in respect of her flexible working relations.[104]Ms Nixon said that she did not see the claimant’s grievance until after the claimant made an explicit complaint of race discrimination on 1 March 2019. Ms Nixon said that she was aware that the claimant had raised a grievance in respect of her contended failure to encourage her to apply for the CQUIN band 7 vacancy, but she was not aware of any complaint of discrimination against her. The grievance was the subject of mediation. However, it was only after 19 March 2019, that Ms Nixon received the claimant written complaints [HB636-637], and that was when Ms Nixon became aware that the claimant had accused her of race discrimination. Ms Nixon’s statement deals with her shock on this discovery as she believed that she had a trusting and close relationship with the claimant and that the small team worked effectively. Her explanation at the hearing of her shock and upset of such late discovery was convincing. It is also consistent with the contemporary correspondence contained within the hearing bundle between all of the protagonists. Ms Nixon’s account of her late discovery of the claimant’s full allegations is also consistent her late reaction in composing a detailed response to the claimant’s allegations [HB889-901].[105]The contention that Ms Nixon did not know about the claimant’s discrimination complaint is also consistent with the evidence of Ms Begom from HR and that of Mr Fitzgerald, in particular. Mr Fitzgerald appeared professional throughout this episode. He said that he did not discuss the claimant’s complaint in any detail with Ms Nixon other than to make her aware of the grievance about the band 7 job and that the claimant’s grievance appeared not-to-serious and resolvable up to 1 March 2019, hence the rather meandering mediation. In contrast, the claimant was not able to show that Ms Nixon was made aware of the claimant’s protected act at any time before 19 March 2019.[106]Consequently, we determine that all of the claimant’s allegations of victimisation against Ms Nixon that either predate 19 March 2019 or are said to be continuous acts that started before 19 March 2019 (i.e. the date she found out that the claimant had raised complaints of discrimination) must fail. Although we have made some findings of fact in respect of some of these allegations, the following complaints of victimisation explicitly directed against Ms Nixon during this timeframe are dismissed as they cannot meet the required causal link: issue 21(1)(a), 21(1)(b), 21(1)(c), 21(1)(d), 21(1)(e), 21(1)(f), 21(1)(g), 21(5), 21(6), 21(7), 21(8), 21(9), 21(10), 21(12), 21(13), 21(15)1, 21(16)2 and 21(17). As the claimant confirmed that the following complaints were directed against Ms Nixon, we similarly dismiss complaints 21(2)(a) to 21(2)(i), 21(3), 21(4), 20(20)3.[107]We note by way of observation, that the claimant in her desire to discredit Ms Nixon undermined her case of victimisation. She said in cross-examination that “everyone” found dealing with Ms Nixon difficult and Ms Nixon had made a member of staff cry and other members of staff had complained about her behaviour. This was not put to Ms Nixon nor did the claimant adduce any emails or other corroborative contemporaneous supporting evidence. If the claimant’s assertion is correct, then her purported mistreatment by Ms Nixon could not be attributed to the protected acts but to Ms Nixon’s interpersonal relations and her contended abrasive approach. 1 We note that this was the basis of a complaint of direct sex discrimination against Mr Fitzgerald and we have considered that allegation separately. 2 We note that this was also a complaint of direct race discrimination and we have given a separate determination in respect of that. 3 Ibid.[108]The causation issue is also relevant to the claimant’s allegation at 21(22), which is also addressed as an allegation of direct race discrimination. Given that the alleged detriments occurred between 2 years 1½ months and 8½ months before the relevant protected act, we determine that there can be no possible validity in this allegation.[109]Again allegation 11(26) concern’s Ms Stewart’s appointment so on the claimant’s own case, the protected acts post-date the alleged detriment. Accordingly, this claim of claim must fail.[110]Allegation 21(11) was directed towards Ms Nixon, but this did not indicate a timespan that the conduct complained of occurred. There was a consensus between all the key witnesses that CQUIN was a busy environment with multiple projects undertaken. We were not able to detect any particularly busy episodes. The claimant gave no specific instances to support this allegation so we could not make any findings of fact in this regard. Ms Nixon contended that she gave the claimant sufficient time to complete all assigned tasks and following her absence in October and November 2018 she met with the claimant for around 15 minutes each day to undertake her workload review. Ms Nixon said that on a number of occasions, she would pick up work not completed by the claimant to ensure that deadlines were met, and this was evidence by the data audit for the cardiometabolic project at the end of November 2018. As we find Ms Nixon a reliable witness and as we have doubt about the claimant’s credibility, we believe Ms Nixon’s version of events in contrast to that of the claimant. Under the circumstances we do not find that there is less favourable treatment, and we dismiss this complaint of victimisation.[111]In respect of allegation 21.14, we make finding of fact set out above. Mr Fitzgerald responded to the claimant’s email promptly and appropriately. He then met with the claimant on her first morning back in the office. Ms Begom was copied into the emails and so she did not respond directly to the claimant as she considered Mr Fitzgerald was dealing with the matter. Mr Fitzgerald’s response to the claimant’s email and Ms Begom’s lack of response was appropriate in the circumstances. There is no veracity in this complaint, so it is dismissed.[112]As set out in our finds of fact, the claimant has never identified the email Ms Begom and Ms Evans refused to reply to in allegation 21(18). This was not put to Ms Begom in cross-examination and there were no such emails in the hearing bundle. As we cannot see what Ms Begom and Ms Evan’s are supposed to have done wrong in respect of the emails, we dismiss these complaints of victimisation. In respect of the second tranche of the allegation, it was wholly appropriate for Ms Evan’s to decline to discuss the claimant’s grievance in the mentoring meeting as that would be a substantial breach of the grievance process and unjust to other parties. Ms Evans was correct in refusing to be drawn into this dispute. Accordingly, the claimant was not treated less favourably, and this claim is dismissed.[113]The allegation against Mr Fitzgerald at 21(19) flows from the allegation at 21(14). The claimant requested temporary redeployment on 27 November 2018. At this point, the claimant had raised allegations in a written grievance but significantly she did not make allegations of bullying and harassment against Ms Nixon and nor were there any specific allegations of discrimination against her. Mr. Fitzgerald said that his rationale for not moving the claimant in November 2018 was that he hoped that her relationship with Ms Nixon could be repaired. He took advice from HR and he followed the grievance policy which speaks of about seeking to preserve working relations in the first instance. When the claimant returned to work on 29 November 2018 she complained about the workload she had been given but she did not ask to be moved. Mr Fitzgerald met with the claimant, the met with Ms Nixon and suggested mediation. The claimant responded positively (by email on 5 December 2018), she accepted some mediation and expressed her gratitude to both Mr Fitzgerald and Ms Begom.[114]This allegation represents the claimant’s reimagining of the events that occurred at this time. Mr Fitzgerald made a reasonable and considered management decision based on the HR advice, the concerns the claimant had raised in November 2018 and the Grievance Policy. The claimant did not raise this complaint in her grievance process because, at that time, she accepted Mr Fitzgerald’s proportionate response. We are not persuaded that Mr Fitzgerald’s failure to intervene amounted to less favourable treatment. However, if it did, then his decision was clear, reasoned and not attributable to victimisation.[115]It is relevant that the claimant’s trade union representative made claims of bullying and harassment in an email of 14 February 2019 [HB591], following which Mr Fitzgerald redeployed the claimant. This was a reasonable response to the escalation in the severity of the matters that the claimant was complaining about.[116]Our findings of fact and our determination in respect of unfair dismissal detail the respondent’s efforts in respect of suitable alternative employment, i.e., allegation 21(23). These steps were primarily undertaken by Mr Fitzgerald but also involved Ms Otoo, HR, an IT representative and Mr Hill. The respondent’s action was extensive in the circumstances so the claimant’s allegation that the respondent failed to support her in her search for suitable alternative employment is vacuous in the circumstances and is consequently dismissed.[117]The claimant raised her initial grievance on 27 November 2018 and the grievance outcome was delivered on 5 July 2019. A delay of over 7 months is frankly unacceptable. Notwithstanding the grievance procedure did not have express time limits there was a commitment within the procedure that states the respondent “will aim to resolve all grievances in as timely a manner as possible, bearing in mind genuine operational time factors”. An employee has a reasonable expectation that her complaint will be investigated and determined in a timely manner. It is the respondent’s obligation to apply their procedure properly and over 7 months to determine a grievance in this case is not timely. The respondent did not provide any information in respect of difficulties in “operational time factors” either at the hearing or to the claimant throughout this process (which was discourteous to their employee).[118]We note that the claimant agreed to mediation on 5 December 2018. However, the claimant made clear that she expected the respondent to investigate her complaint of the CQUIN band 7 recruitment exercise, which the respondent failed to progress. Ms Begom gave evidence in respect of the delays in coordinating mediators, rooms and accommodating Ms Nixon’s work commitments before and after Christmas. The explanation for the delays appears genuine; however, insufficient. When clear and decisive action was required to press on with the claimant’s grievance, lethargy prevailed. That this appears to be the prevalent culture within the NHS does not make this sluggish approach justifiable. Understandably, the claimant’s trade union representative confirmed in mid-February 2019 that the claimant no longer wanted to pursue mediation. The claimant then provided further information which escalated this dispute, and it took a further 4 months to investigate and determine this mater. The claimant was not kept sufficiently updated. The respondent’s counsel submits that that overall, this was not an unreasonable time frame. We disagree. Decisive management was lacking when this was required in the progress of the claimant’s grievance. That said, the claimant was not able to identify any factor or individual that might benefit from this torpid response. The respondent’s tardiness was based on ineptitude and a lack of senior oversight and was likely to be a source of complaint and ensuing criticism of the respondent. Under the circumstances we find no link or causation between allegation 21(24) and the claimant’s protected act.[119]The respondent should draw little comfort from our finding of non-discrimination in respect of this allegation as if it is minded to make any further application in respect of these proceedings it should desist; as we re-emphasise the delay in dealing with the claimant’s grievance was unacceptable and if the respondent’s had resolved the claimant’s formal complaint promptly then matters might not have progressed to these proceedings.[120]Allegation 21(25) resolved around another seemingly trivial exchange. Neither the claimant nor Mr Fitzgerald were entirely clear about what was precisely said because this exchange occurred some time ago. The claimant took offence to Mr Fitzgerald’s contended utterance: she said Mr Fitzgerald said that she could apply for any job at the Trust “even a director’s post if you want” or words to that effect. This was purportedly said in a mocking voice. The comment arose in a meeting on 21 March 2019. Mr Fitzgerald denied the alleged sarcasm, he said his comment was made to convey to the claimant that she was free to apply for any position beyond the terms of the Management of Staff Affected by Change Policy. He said the claimant took no offence at the time because his comment was innocuous, and the claimant made no complaint during the grievance process either. We note Mr Fitzgerald’s apparent professionalism and the extensive support that he gave to the claimant throughout this period. We also note that Mr Fitzgerald was a measured and credible witness, so if there was a dispute in the evidence between the claimant and Mr Fitzgerald then we prefer the evidence of Mr Fitzgerald as, for the reasons we state above, we regard his evidence as more reliable. We make no finding of fact in respect of this he said, she said allegation because of the imprecise nature of the exchange and the lack of a corroborative account. This allegation is therefore dismissed.[121]At the Preliminary Hearing, Judge Housego determined that the claimant was dismissed by reason of redundancy. This determination accords with the evidence presented at this hearing and confirmed in our findings of fact. Therefore, the complaint of victimisation at 219260 and 21(27) fail also. Unlawful deduction of wages[122]As the claimant’s employment ended on 30 June 2019, her entitlement to wages ended at that date. The claimant has not explained the basis of her claim for her normal salary for July 2019 to December 2019 other than alleging Mr Fitzgerald offered her an extended contract in the Estates department, which was disputed by Mr Fitzgerald.[123]There is no separate claim for breach of contract in respect of this money. The claimant cannot establish a right to be paid wages under s13(3) ERA after her termination date on the basis that she thinks she ought to have been given a further 6-months work. Therefore, we dismiss this claim also. Time limits/limitations issue[124]Issue 2 identifies any claim occurring before 30 May 2019 as being potentially out of time. Discriminatory conduct extending over a period of time is to be treated as done at the end of that period: s123((3)(a) EqA. As we make no findings of discrimination against the respondent there can be no continuous acts.[125]The time limits for a failure to do something runs from when the discriminator decides not to do it: s123(3)(b) EqA. If there is no evidence about when the discriminator failed to do something, then the time limit should run from when she or he does an act inconsistent with the alleged omission or upon a period in which she or he might reasonably have been expected to do it: s123)4) EqA.[126]So in respect of the allegations of direct race discrimination:a. allegation 12(1) appears to be out of time by approximately 2 years 2½ months beyond the 3 month statutory time limit of s123(1)(a) EqA (this running from 6 months after the claimant started work, which we determine would have been a reasonable period for relevant training that might otherwise have been applicable for the claimant to have been completed).b. For allegation 12(2) we expect a contract of employment to be issued within 2 months of the employee starting work, so this claim is 2 years 6½ months out of time.c. Allegation 12(3) is 6 months out of time.[127]In respect of the allegation of direct sex discrimination: a. allegation 15 is 3 months out of time.[128]For the allegations of direct disability discrimination: a. As the complaint at issue 19 is against Ms Nixon it cannot proceed past 27 February 2019, which was after the last day that Ms Nixon and the claimant worked together but when the claimant was redeployed [see HB568, 589, 848], so this claim is more than 3 months outside the 3 months statutory time limit.;[129]For the allegations of victimisation:a. allegation 22(1)(a) is 6 months out of time.b. allegation 22(1)(b) is between 6 months to 3 months out of time.c. allegation 22(1)(c) is 4½ months out of time.d. allegation 22(1)(d) is 4 months out of time.e. allegation 22(1)(e) is 3 months out of time.f. allegation 22(1)(f) is between 6 months to 3 months out of time.g. allegation 22(1)(g) is between 4 months and 3 months out of time.h. allegation 22(2)(a) to (i) are between 9 to 3 months out of time.i. allegation 22(3) is 6 months out of time.j. allegation 22(4) is 6 months to 3 months out of time.k. allegation 22(5) is 6 months to 3 months out of time.l. allegation 22(6) is 6 months to 3 months out of time.m. allegation 22(7) is 4 months out of time.n. allegation 22(8) is 4 months to 3 months out of time.o. allegation 22(9) is 6 months to 3 months out of time.p. allegation 22(10) is 6 months to 3 months out of time.q. allegation 22(11) is 6 months to 3 months out of time.r. allegation 22(12) is 4 months to 3 months out of time.s. allegation 22(13) is 6 months out of time.t. allegation 22(14) is 6 months out of time.u. allegation 22(15) is 2 years 2½ months out of time.v. allegation 22(16) is 6 months to 3 months out of time.w. allegation 22(17) is 6 months out of time.x. allegation 22(18) is 4 months out of time.y. allegation 22(19) is 6 months out of time.z. allegation 22(20) is 6 months out of time. aa. allegation 22(22) is 2 years 6½ months out of time. bb. allegation 22(25) is 2 months out of time. cc. allegation 22(26) is 6 months out of time. For the avoidance of doubt we assess the victimisation claims 21(23), 21(24) and 21(27) as being in time.[130]There is no presumption that Tribunal’s should extend time, the claimant must persuade the Tribunal that it is just and equitable to do so: Robertson v Bexley Community Centre, [2003] IRLR 434. Furthermore, the remedy of Employment Tribunal proceedings is considered to be sufficiently well known that ignorance of such recourse will not normally be accepted as an excuse for non-compliance with any time limit (see Read in Partnership Ltd v Fraine UKAEAT/0520/10, John Lewis Partnership v Charmaine UKEAT/0079/11 and Walls Meat Co Ltd v Khan [1979] ICR 52. The statutory time limits should be sufficient for the claimant to investigate her options promptly and issue proceedings within the necessary 3-month period.[131]The claimant said that she was not aware of the statutory time limits and that she was stressed at the appropriate times. We note that the claimant has not adduced any medical evidence of cognitive impairment or incapacity and we see that the claimant was able to work during the course to this dispute. The claimant was able to comply with the unfair dismissal, redundancy payment and the wages claim time limits. We are not satisfied that it is just and equitable to extend any statutory time limits under s123(1)(b) EqA. If there were any merit in respect of the claimant’s claims of discrimination, we would not allow these to claimants to proceed to remedy. Summary[132]We reject the claims of unfair dismissal, redundancy payment and the claim for wages shortfall. We also reject the claimant’s claims in respect of race, sex and disability discrimination and victimisation. Proceedings are now dismissed.