Mrs J Mahal (Nee Buttar) v The Commissioner of Police of the Metropolis: 3203100/2019 and Others

EMPLOYMENT TRIBUNALS

Case No 3203100/2019

Between

Mrs J Mahal (Nee Buttar)Claimant

The Commissioner of Police of the MetropolisRespondent

Before

Employment Judge John Crosfill

Members

Mrs M Legg

Mr M Rowe

Ms K Annand (instructed by Counsel Respondent: Mr P Martin of Counsel) for claimant

Date 6 May 2025

JUDGMENT

[1]By consent the Claimant’s claims brought Part II of the Employment Rights Act 1996 succeed the sum awarded and the relevant declaration shall be included in a remedy judgment in due course. 2. 27 and 39 of the Equality Act 2010 by Joanna Wood repeatedly asking the The Claimant’s claim that she was unlawfully victimised contrary to Section Claimant to ‘walk the floor’ succeeds.

[3]The reasons below record which of the Claimant’s claims and or which claims identifying individuals were withdrawn by the Claimant. Those claims are dismissed upon withdrawal.

[4]All further claims of victimisation, direct race discrimination, Harassment and the claims that there was a failure to make reasonable adjustments are dismissed.

REASONS

[1]The Claimant was at the time that she issued her claims engaged as a Communications Supervisor working for the Metropolitan Police Service at its Command and Control Centre at Bow (‘Bow CC’), East London. The Claimant has complained of her treatment at the hands of the Respondent during a period starting from around February 2017 to March 2022. The Claimant has presented separate claims. Claims 3200032/2019 & 3200466/2019 dealt with the earlier complaints which included events up to early February 2019. Those two claims were listed for a final hearing that took place over 5 days in January 2022. The judgment of the Tribunal was that the Claimant succeeded in three claims alleging a failure to make reasonable adjustments and in one claim of victimisation. A large number of other claims were dismissed. A remedy hearing is awaited. This judgment deals with the remaining four claims.

[2]After contacting ACAS for the purposes of obtaining an early conciliation certificate on 20 December 2019 the Claimant presented case No: 3203100/2019 on 22 December 2019. The Claimant contacted ACAS on 29 November 2020 and obtained a further Early Conciliation certificate on 30 November 2020. She presented case No: 3220171/2020 on 30 November 2020. Relying on the same ACAS certificate the Claimant presented her fifth claim on 7 April 2021.

[3]The Claimant’s claims are for victimisation, harassment (related to disability and race), direct discrimination because of race, discrimination because of something arising in consequence of disability, and that there had been failures to make reasonable adjustments. The claims were set out in two schedules. During the hearing some claims were withdrawn. The Hearing/Procedural Matters

[4]The Respondent had not admitted that the Claimant’s various impairments amounted to disabilities for the purposes of Section 6 of the Equality Act 2010. That issue was resolved in the Claimant’s favour by a decision of EJ Hallen dated 25 November 2019. He found that the Claimant had the following impairments that amounted to disabilities: 4.1. Endometriosis, and 4.2. Osteoarthritis; and 4.3. Hypertension; and 4.4. Stress and anxiety.

[5]There had been a final hearing listed for 5 days commencing 24 March 2020 that had been intended as a final hearing for the first three claims. Due to the Covid19 pandemic that hearing was postponed. There were further preliminary hearings on 4 May 2020 and 27 July 2020 where there was discussion about whether the Claimant’s third claim should be consolidated and heard with her first two claims. The Claimant issued her fourth claim and a decision was taken by REJ Taylor to consolidate all four claims. That decision was taken without hearing from the parties. The Claimant then issued her fifth claim. At a preliminary hearing that was held on 1 December 2021 EJ Lewis decided that the first two claims would be heard first and listed the remaining three claims for a hearing before the same tribunal if it was reasonably practicable to do so. She clarified the issues in the first two claims and made directions for the clarification of the issues in the three remaining claims.

[6]The final hearing in respect of the third to fifth claims was listed for 15 days commencing 4 July 2023.

[7]There were further case management hearings that dealt with an application by the Claimant to amend the claims and for the parties to agree a list of issues. The final case management hearing took place on 23 May 2023. At that hearing the list of issues had been distilled into a 17 page document but that still required some minor clarifications following the Claimant’s application to amend her claim.

[8]It had not been practical to assemble the original tribunal. The Employment Judge was part of the Tribunal who heard the first two claims. The non-legal members were allocated to the third to fifth claims. The parties attended on the first day of the hearing and the tribunal dealt with some outstanding issues including making a witness order to secure the attendance of Mr (formerly Chief Inspector) Brown. The tribunal then indicated that Time had been allocated at the outset of the hearing commencing 4 July 2023 for the Tribunal to read the witness statements and bundle of documents. In our discussions with the parties we expressed a view that it appeared somewhat disproportionate to conduct a 15 day hearing in circumstances where the Claimant remained employed by the Respondent and it was not obvious that she would obtain any financial remedy other than an injury to feelings award. Furthermore she had succeeded in parts of her first two claims and was therefore entitled to a remedy which might already mean that she would receive an injury to feelings award. In short it appeared that the issue was not whether the Claimant would be awarded some money, but how much.

[9]The parties agreed to mediate and the tribunal was able to organise that for 6 July 2023 before a different Employment Judge. It is sufficient to say that that mediation did not resolve matters between the parties. The tribunal used this time to complete its reading.

[10]Unfortunately Counsel then instructed by the Respondent (not Mr Martin) fell ill. He informed the tribunal in the early hours of 7 July 2023 that he would be unable to attend. We initially hoped that he would make a sufficient recovery by 11 July 2023 but that proved optimistic. We postponed the hearing and relisted it on the first available dates. The tribunal would record that both the Claimant and Ms Anand were very gracious in dealing with these unfortunate circumstances despite the huge waste of resources it entailed.

[11]The same tribunal who had started the hearing on 4 July 2023 was assembled to start the hearing on 11 January 2024. We allowed ourselves some time to refresh our memories before hearing evidence. The main bundle of documents ran to 3549 pages with a supplementary bundle of 281 pages. The were two schedules of issues which had been agreed by the parties as the issues we needed to determine. The first which was 29 pages long set out 37 factual incidents which were said to give rise to claims of discrimination, harassment or victimisation. A further schedule set out 13 claims that there had been a failure to make reasonable adjustments.

[12]We heard from: 12.1. The Claimant who had made a statement running to 89 pages gave evidence on her own behalf starting her evidence after lunch. Her evidence was spread over three days; and 12.2. Acting Chief Inspector Fyfe, who was one of two Duty Officers for ‘Team A’ at the Bow CC at the point when the claims we are considering arose through to 21 September 2021 when he moved to a different role. In order to accommodate his availability we then heard from: 12.3. Pavel Alam, the Claimant’s trade union representative from the PCS Union his evidence included what the Claimant had told him as well as his direct evidence of attending meetings to support the Claimant. We then heard from: 12.4. Mr Patrick Brown, who before his retirement in April 2022 had been a Chief Inspector at ‘Metgrip – MO12’ based at the Respondent’s Headquarters at Lambeth. For a period of time he managed Inspector Fyfe and was the Claimant’s second line manager. Whilst Mr Brown asked that he was referred to during the hearing as Pat Brown or Mr Brown we have referred to him below by his title held at the time as that is how he has been described in the documents. 12.5. We then heard from Liza Wingrove; she has worked at the MetCC since November 2006. She is a Supervisor and Deputy Duty Officer based at Bow. She had worked with the Claimant for some time. She would only have line management responsibility for the Claimant and other Supervisors when the substantive duty officer was on leave. The difficulties in the Claimant’s relationship with Lisa Wingrove featured in the first two claims brought by the Claimant. We then heard from: 12.6. Superintendent Gary Warby. He joined Met CC in February 2019 he had strategic responsibility for service delivery for first contact and despatch across the three contact centres situated at Lambeth, Hendon and Bow. He remained in that role until September 2021. 12.7. Sham Patel was a Supervisor and Deputy Duty Officer at MetCC. It is the Respondent’s case that he, together with Shabbir Alli took over from Inspector Fyfe, the line management of the Claimant during the Covid19 pandemic. 12.8. Shabbir Alli was the other Supervisor and Deputy Duty Officer who the Respondent says took over line management from Inspector Fyfe at the outset of the Covid19 pandemic.

[13]Superintendent Kier Newman worked within MetCC he held a number of roles most of which concerned issues of people management/human resources. He had a previous career as an HR Consultant. His statement dealt with the process of promotion and in particular a selection exercise for a Band C role that the Claimant applied for. He heard her appeal against the refusal to allow her to progress to the interview stage of that process. The Claimant indicated that she did not challenge any part of Kier Newman’s statement and on that basis the Tribunal have proceeded on the basis that we can accept what he has said. He was not called to give evidence.

[14]The Respondent had asked Deputy Assistant Commissioner Matthew Horne to prepare a witness statement. He had been asked by the Claimant to look into issues set out in a grievance described as Grievance Aug 2019. At the time he was part of the ‘Gold Group’ set up in response to the Covid Pandemic and had particular responsibility for considering issues affecting Black and Asian persons. His statement did not respond to any claim brought by the Claimant. He simply records his brief interaction with the Claimant around her grievance. He did not give evidence before us.

[15]Both before and during the hearing Ms Anand, on instructions from the Claimant, refined and reduced the claims. We record the claims that have been withdrawn below when dealing with each claim raised in the list of issues.

[16]The Claimant had brought a claim for unlawful deduction from wages. These claims related to premium payments in 2019 following what we understand to have been a change in policy. The Respondent conceded this claim and we have entered judgment in respect of that claim by consent.

[17]We had asked both advocates to indicate during their questioning the issues to which their questions related and both obliged. The long list of issues and the length of the Claimant’s statement explains why her evidence took several days. Mr Edwards worked methodically through each of the issues. Ms Annand did the same when she cross examined the witnesses. Both Counsel also structured their written submissions on an issue by issue basis which was very helpful. Counsel made fairly brief oral submissions to supplement their written submissions.

[18]We shall not set out or try to summarise the submissions of Counsel. The parts we considered important are reflected in our decisions, discussions and conclusions below. We would like to record how grateful we were to receive tightly focussed submissions.

[19]During the hearing we asked the parties if they wanted to address us on the law. Both Counsel indicated that they were confident that the self-direction on the law set out by the tribunal that heard the first two claims was adequate and they were content that we should use that as our direction in this case. Our general findings of fact

[20]In this section we make findings of fact based on the evidence presented to us. The Claimant has included a great deal of material in her witness statement including where she refers to reports into the Metropolitan Police Services by Baroness Casey and the views of Baroness Doreen Lawrence. She says that the MPS is institutionally racist and corrupt. The Claimant may or may not be correct in her views. It is not our function to conduct a public enquiry into the practices of the Metropolitan Police. The issues for us are those set out in the list of issues. We accept that evidence of events that do not directly concern the Claimant might be important when looking at whether there is material from which the Tribunal might draw inferences. What is unnecessary is for the Tribunal to make findings of fact that go any wider than matters that have any bearing on the claims before us. Mr Edwards indicated at the outset of the hearing that he did not intend to cross examine the Claimant on the parts of her statement that he said did not go directly to the issues before us.

[21]The approach we take below is to work through the allegations making findings of fact under headings that approximately reflect the list of issues. The danger with adopting this approach is it risks giving the impression that our findings are compartmentalised and focus only on one issue at a time. That was not our approach in our deliberations. We are alive to the fact that an incident that appears innocuous in isolation may take on a different character when viewed against a broader canvas. So whilst we have set out our conclusions in respect of individual actions our findings on each matter reflect our view of the evidence as a whole.

[22]We were conscious that the Claimant’s third to fifth claims are a continuation of her first and second claims. In her first and second claims the Tribunal found facts which are binding upon this tribunal. In the Claimant’s favour there are findings that she was victimised and that there were failures to make adjustments. In the Respondent’s favour the first tribunal made findings that the Claimant was prone to hyperbole and to an extent exaggeration. We have had regard to those findings (and all others) when making the decisions below. Such matters are not determinative of any issue in the present claims but are matters that we might take into account where appropriate in assessing the accuracy of the Claimant’s evidence.

[23]It is unnecessary for us to set out any further background than is included in the judgment in the first and second claims. Any third party may be assisted by reviewing that judgment to understand the work done at the MetCC and the difficulties that had occurred in the workplace prior to the events giving rise to these claims. Allegation 1 – The Appointment of Joanna Wood as the Claimant’s Line Manager.

[24]The Claimant’s case was that the appointment of Joanna Wood to manage her was an act of victimisation by Chief Inspector Brown. That is not unimportant as it is therefore Inspector Brown’s mental process that falls to be examined. The Respondent had not called Joanna Wood. We do not know why Joanna Wood wanted to be the Duty Officer for Team 5. Given the way the case has been put by the Claimant that is unimportant.

[25]As recorded in the judgment in the first two claims the Claimant had sent an email to a DS Cook in February 2017 where she said she was aware that numerous complaints had been made about Joanna Wood of bullying, intimidation and overbearing line management. She went on to suggest that that conduct was linked to the race of those who felt targeted [Judgment paragraph 94]. Joanna Wood had learned of what the Claimant was saying by September 2017 and made a complaint [Judgment paragraph 96]. The complaint process then dragged on for some considerable time. It took over a year. Stephen Arnold, a union representative, played an unusually prominent role in drafting the proposed terms of an investigation into the Claimant’s conduct [see paragraphs 97-101]. Inspector Andrew Inglis was instructed to commence an investigation. He interviewed Joanna Wood on 1 November 2018. She is recorded as complaining that the Claimant portrayed her as a racist bully. On 13 November 2018 Inspector Andrew Inglis drafted a ‘Notice of Investigation’ [see Judgment paragraph 106]. The tribunal concluded that that act amounted to unlawful victimisation contrary to Section 27 of the Equality Act 2010. The reasons for that decision are set out in paragraphs 287 to 296 of the Judgment. Those reasons include the fact that the Respondent had conceded that the Claimant’s e-mail of February 2017 was a protected act. That implicitly includes an admission that the Claimant was not acting in bad faith. It does however seem to the Tribunal that the complaint made by Joanna Wood was raising the question of bad faith. On 22 February 2019 the Notice of Investigation was withdrawn. The reasons for the withdrawal were that it was considered that the issue of whether the Claimant had misconducted herself was a matter for the PCS Union for whom she was a representative at the time [Judgment paragraphs 115 and 116].

[26]In her submissions Ms Anand asks us to accept that Joanna Wood and her trade union representative were angry about the decision to withdraw the Notice of Investigation. She also urges us to find that the Claimant did not make any allegations herself about Joanna Wood but merely relayed them. Dealing with that latter point we would accept that on a literal reading of the Claimant’s e-mail of February 2017 she relays what she says were the concerns of others. That said the Claimant does implicitly criticise Joanna Wood her e-mail carries the strong implication that she believes that the concerns she is alluding to are well founded. It is unsurprising that Joanna Wood believed that the Claimant was saying that she was a racist and a bully. Indeed on her own evidence that is what the Claimant does believe. It appears that Joanna Wood raised the possibility of bringing tribunal proceedings naming the Claimant. We have not heard from Joanna Wood. We would accept that on the evidence before us it is probable that Joanna Wood was extremely upset both at what had been said about her by the Claimant and by the fact that it had taken over a year for the process of dealing with her complaint to have been concluded by being abandoned.

[27]On 7 April 2019 Joanna Wood sent an e-mail to Team 5 cc’d to Inspector Douglas Fyfe informing the team that she was moving to that team and would start working on 17 April 2019. She said: ‘The move to Team 5 was at my request, I’ve worked with many of you before and am looking forward to joining you in just over a week’s time’.

[28]The potential for conflict between the Claimant and Joanna Wood was recognised by Gordon Ifil the independent person investigating the Claimant’s grievance. He suggested on 23 April 2019 that measures were put in place to ensure that the relationship did not deteriorate (further). The Tribunal agrees with Ms Annand that the potential for conflict if Joanna Wood were to manage the Claimant was not so much foreseeable as inevitable. That proved to be the case very quickly.

[29]The Claimant had worked with Joanna Wood for a single shift when, on 29 April 2019 she sent her an e-mail copied to Inspector Fyfe, Chief Inspector Brown and others. Her e-mail raises a series of complaints. She complained about a reallocation of her duties by Faz Aziz. She complained about a colleague who had been offered overtime. She complained that she had asked for shadowing opportunities to the post of Deputy Duty Officer and had been told to ask Mr Inglis or ‘ask Jo’. She referred to ‘a culture of preferential treatment, favouritism, and cronyism’. Joanna Wood’s reply to the Claimant is cold in tone and she expressly states in her e-mail that she has chosen to be concise. She dealt with the specific complaints raised by the Claimant giving an explanation to her. She suggests that the issue of shadowing could be best raised at a 1-2-1 meeting that she expected to have with the Claimant. The Claimant agreed in cross examination that Joanna Wood was having 1-2-1s with all team members. In relation to the broad suggestion that there had been preferential treatment, favouritism and cronyism Joanna Woods says that she trusted that the Claimant had details of what she suggested had happened and referred her to the formal processes for resolving such complaints. We considered that the response of Joanna Wood is somewhat strained, but it is professional.

[30]We need to make findings about how Joanna Wood came to be posted to Team 5. She said in her e-mail that it was ‘at her request’. The Claimant contacted Chief Inspector Brown and asked who had taken the decision to move Joanna Wood to team 5. It was agreed that this would be discussed at a meeting that had already been organised and took place on 7 May 2019.

[31]There were no formal notes of the meeting that took place on 7 May 2019 but Chief Inspector Brown wrote to the Claimant on 25 May 2019 and purported to summarise the discussions. We are satisfied that that letter is a broadly accurate account of the discussions. We reach that conclusion because neither the Claimant, nor her trade union representative, responded with any corrections at the time. The meeting was attended by Chief Inspector Brown, Inspector Inglis, the Claimant and Pavel Alam. Pavel Alam in his witness statement gave an account of the meeting which is broadly in line with the letter sent to the Claimant by Chief Inspector Brown.

[32]In relation to the posting of Joanna Wood as the Duty Officer to team 5 Chief Inspector Brown said at the meeting and in his letter that that that had been his decision. He then set out in his letter a short history of the reasons that the Notice of Investigation had been withdrawn. He says in his letter that Joanna Wood had been informed of the outcome of the process and had said she was happy to work with the Claimant. He then records that there was a discussion about moving the Claimant and records that a compromise was reached that the Claimant would change her line management from Joanna Wood to Inspector Fyfe. The letter, of itself, does not give any explanation of how Chief Inspector Brown came to be the decision maker for Joanna Wood’s move.

[33]In his witness statement and oral evidence Chief Inspector Brown gave a more extensive explanation. We find nothing inconsistent between that explanation and Chief Inspector Brown saying that the decision on the move was his. He said that there was a vacancy for a Duty Officer for Team 5. In his witness statement he referred to what he said when he had been interviewed as part of an investigation into a grievance brought by the Claimant. He said that Joanna Wood had been ‘posted to my leave line through local resource planning’. What we have taken from this and his oral evidence is that where there is a vacancy it is posted internally and applications invited. An initial decision to appoint somebody to a post was taken by ‘resource planning’. Chief Inspector Brown said that he was expected to approve any appointment. In that sense, his letter to the Claimant of 25 May 2019 is correct. However, in his witness statement and in his oral evidence he went on to say that in the absence of any misconduct proceedings or other good reason he would ‘not have been in a position to decline’ the appointment. We accept his evidence that it is generally the function of ‘resource planning’ to nominate individuals for vacant posts. We would further accept that if that was the process followed then the receiving line manager would have to have a strong reason to veto any nomination. Had Chief Inspector Brown decided that Joanna Wood should not manage the Claimant then, in order to accommodate her at Bow, he would have had to move another Duty Officer. However, we would accept that, notwithstanding the usual process involving the resource planning team it was within Inspector Brown’s powers to move people around. This is what he did for the Claimant when she objected to working under the line management of Joanna Wood.

[34]The Claimant’s case is that Chief Inspector Brown appointed Joanna Wood as the Claimant’s line manager as an act of victimisation. There was no evidence that Chief Inspector Brown had approached Joanna Wood to encourage her to apply to manage Team 5.

[35]It is necessary for us to make findings as to the extent of Chief Inspector Brown’s knowledge about the matters the Claimant relies upon as protected acts. To some extent this was a matter of common ground. In his letter to the Claimant of 25 May 2019 Chief Inspector Brown refers to ‘other issues dating back some time’. He accepted that the was referring to the first two claims that the Claimant had brought. He also accepted that he knew that the Claimant had brought grievances. His evidence was that he did not know the details of any of the claims or grievances at the time that he is said to have appointed Joanna Wood as the Claimant’s line manager. Whilst accepting Chief Inspector Brown’s account that he was unaware of the specifics of the tribunal claims or grievances we find that he knew that the tribunal claims included allegations of discrimination. Accordingly he was aware of Protected Acts 4 and 5 before Joanna Wood took up her post as the Claimant’s line manager.

[36]In assessing whether Chief Inspector Brown was aware of the Claimant’s actions in February 2017 when she relayed concerns about Joanna Wood discriminating against and bullying people (Protected Act 1) we are primarily assisted by the letter written by Chief Inspector Brown on 25 May 2019. In that letter Chief Inspector Brown deals with the issue of the Claimant’s complaints about the recent appointment of Joanna Woods as her line manager. He sets out a history of the disciplinary investigation. There is no hint in the letter that this is the first he has heard of the matter and it would be surprising if it was. The matter had dragged on for some time. We find that he was aware that the Claimant had raised or supported a suggestion that Joanna Wood engaged in race discrimination. Furthermore we find that he was aware that the Claimant had brought a grievance complaining that the matter had been investigated. That is relied upon as protected Act Number 3.

[37]In respect of Protected Act number 2 we find that Chief Inspector Brown managed Inspector Inglis. We draw on the findings of fact in the first decision. There had been a considerable history of managerial dealings with the Claimant. There had been significant conflict between the Claimant and others. It would have been very surprising if no knowledge of these issues had been passed to Chief Inspector Brown. We find that it is more likely than not that Chief Inspector Brown was aware that the Claimant’s grievance of 11 August 2018 concerned her disabilities and the allocation of a parking space. We would accept that he did not have any detailed knowledge of every aspect of the Claimant’s extensive grievances.

[38]It follows that we accept that Chief Inspector Brown had at least some knowledge of Protected Acts 1 to 5 at the time that he accepted Joanna Wood taking up the position of Duty Officer for Team 5.

[39]In order to inform our conclusions reached below on the reasons for Chief Inspector Brown’s decision to accept Joanna Wood as a Duty Officer it is necessary to revisit the meeting of 7 May 2019. We note that the letter of 25 May 2019 includes towards the end the phrase ‘I was pleased and optimistic that we had achieved a way forward, which I believe was a shared feeling’. The suggestion implicit in that being that the meeting had been positive and productive. That was Chief Inspector Brown’s evidence before us. It was not substantially contradicted by the Claimant or Pav Alam. Reviewing the letter it is clear that in response to the Claimant raising her concerns about working under Joanna Wood a solution is proposed by Chief Inspector Brown. That proposal appears to have been welcomed.

[40]The next matter that is dealt with in Chief Inspector Brown’s letter is the altercation that took place between the Claimant and Ronnie Jones on 3 February 2019. In the first decision the tribunal made findings of fact for itself about what occurred on that occasion. Chief Inspector Brown recorded that the matter had been investigated and that there was insufficient evidence to support the Claimant’s complaint. In the light of the first Tribunal’s findings that is not surprising. What is instructive is that Chief Inspector Brown makes suggestions to the Claimant about how to deal with any further allegations. He suggests that she report such matters without delay. We find that that was sensible advice. He further suggests that such matters can benefit from mediation. Again that is sensible and constructive. He records that the Claimant declined to mediate and very sensibly warned her that it risked perpetuating a ‘difficult floor environment’.

[41]Overall we find that Chief Inspector Brown approached the meeting of 7 May 2019 focused on problem solving and finding a way forward. The discussions that took place achieved a solution for the difficulties between Joanna Wood and the Claimant. Taking the positive steps to offer the Claimant a way forward is not consistent with the suggestion that Chief Inspector Brown bore any animus towards the Claimant. We return to this below when analysing the complaints. Allegation 2 – Inspector Fyfe’s comments during a telephone call

[42]The Claimant says in her witness statement that she was told by Amanda Moffit -Jackson that Inspector Fyfe had talked about her to an unknown member of the Senior Management team and made derogatory comments about her. She does not claim to have heard these comments herself. The Claimant relies upon the contents of an e-mail said to have been sent to her by Amanda Moffit-Jackson on 3 April 2019 together with a record of an interview conducted by Sophie Venosi in the context of investigating the Claimant’s grievances about this. Inspector Fyfe denies that any such telephone call took place.

[43]We have concerns about the weight that can be placed on the evidence emanating from Amanda Moffit-Jackson. Ms Annand suggests in her submissions that there is no reason to believe that Amanda Moffitt-Jackson was not relaying what she heard. We do not agree. When interviewed by Sophie Venosi, Amanda Moffitt Jackson is recorded as saying that she did not speak to Inspector Fyfe because of problems she had had with him in the past. Where relaying information about a conversation where only one side is being heard, there is a real risk of a person jumping to conclusions about what the conversation is really about and the context of any discussion. We are further concerned about the e-mail apparently sent by Amanda Moffitt Jackson. The e-mail sets out what is said to be one side of a conversation with Inspector Fyfe saying, ‘no I do not know her’ and then ‘Jugdeep, oh yes I do know her, its just the way you pronounced her name’. We pause there to say that there is nothing which could possibly justify any offence being taken at what is attributed to Inspector Fyfe thus far. He is then said to have said ‘mention her name to Mr Brown and watch his face drop’. Finally it is said that, after laughing, Inspector Fyfe said ‘she’s probably stomping around downstairs’. The email ends with Amanda Moffit-Jackson saying: ‘I just thought that she should be made aware’. There is no response from the Claimant to put matters into context. Had Amanda Mofitt-Jackson given evidence her reasons for referring to the Claimant in the third rather than second person could have been explored.

[44]The Claimant’s schedule of allegations includes the criticism that Inspector Fyfe was in some way responsible for the Claimant’s name being mispronounced. That is simply not supported by the evidence. Amanda Mofitt-Jackson’s account was that it was the person on the other end of the call that mispronounced the Claimant’s name. In her schedule of allegations Claimant expands this account into an allegation of ‘making jokes, slurs and derogatory comments’. Even if the Tribunal was to accept Amanda Mofitt-Jackson’s accounts in total it is a significant stretch to describe what was overheard in those terms. At worst Inspector Fyfe is alleged to have said that Chief Inspector Brown’s face drops when he hears the Claimant’s name and that she was said to be ‘stomping around. This would be unkind and unprofessional but falls short of the Claimant’s description.

[45]Inspector Fyfe does not say that Amanda Mofitt-Jackson would not have been able to overhear a telephone call but he denies completely that he made jokes slurs or made offensive comments about the Claimant.

[46]We have come to the conclusion that Amanda Mofitt-Jackson probably did overhear Inspector Fyfe on the telephone on 3 April 2019. We would accept that she would have overheard him saying words similar to ‘who’ and then ‘Jugdeep yes I know her it was the way you pronounced her name’. We do not regard that in itself as being in any way offensive, rude or in any way inappropriate on the part of Inspector Fyfe. It is a finding that is consistent with his account and that of Amanda Mofitt-Jackson. The suggestion is that at some point after that exchange Inspector Fyfe laughed. In Amanda Mofitt-Jackson’s e-mail dated 3 April 2019 she does not say that Inspector Fyfe laughed at the fact that a third party had mispronounced the Claimant’s name. She suggests that he laughs after the ‘see his face drop’ remark. She does not suggest that Inspector Fyfe laughed at the mispronunciation of the Claimant’s name in her interview with Sophie Venosi. This is an instance where the Claimant is putting the worst possible gloss on what has been reported to her without any proper evidential foundation for the allegation she has made.

[47]Having regard to the totality of the evidence we are not satisfied that Inspector Fyfe used the phrase ‘mention her name to Mr Brown and watch his face drop’ or that the Claimant was ‘stomping around’. Inspector Fyfe denies this and the Claimant is only able to rely on the hearsay evidence of Amanda Mofitt-Jackson which, whilst we take it into account, it is in our view is less reliable that it might have been due to the fact that she reports the fact that she will not speak to Inspector Fyfe. Her e-mail to the Claimant has some of the hallmarks of a document generated to support a position rather than an entirely neutral factual account.

[48]Inspector Fyfe points out in his witness statement that the Claimant did not raise this incident at the time nor did she mention it in the meeting with Chief Inspector Brown a month later despite the topics at that meeting including raising complaints about a hate campaign. From this we conclude that the incident has taken on more significance later than it did at the time. Allegation 3 – not organising duty officer shadowing – After 3 February 2019

[49]An allegation that the Claimant was not offered shadowing opportunities, were dealt with in the first Tribunal decision (see paragraphs 129 – 131) for the primary findings of fact and paragraphs 319 -321 for our conclusions that there was no discrimination by Ronnie Jones. The Claimant’s claim that withholding these opportunities was discriminatory was dismissed. However, in the present claim the allegation is aimed at Joanna Wood, Inspector Inglis, Stuart Walker, Liza Wingrove, Ronnie Jones, Patrick Brown and Inspector Fyfe. In her witness statement the Claimant does not give any evidence that supports her claim that Ronnie Jones or Inspector Inglis had any further involvement in shadowing opportunities. In her witness statement the Claimant raises this issue by reference to her to her communicating with Joanna Wood on 17 April 2019.

[50]We find that the Claimant is correct that after some limited shadowing opportunities afforded to the Claimant by Ronnie Jones in February 2019 there were no further opportunities offered until the Claimant specifically raised this as an issue with Inspector Fyfe in September 2019. However we need to examine which of the individuals named by the Claimant might bear any responsibility for this.

[51]We have set out above our findings concerning when Joanna Wood briefly line managed the Claimant. The Claimant did raise the possibility of shadowing with Joanna Wood. Joanna Wood responded suggesting that they discuss that at their 1-2-1 meeting. Because the Claimant changed line managers that never happened. Once Joanna Wood was removed as the Claimant’s line manager we do not find that she had any further responsibility for the Claimant’s career progression. Indeed that was the whole point of the change.

[52]Lisa Wingrove was an Acting Duty Manager. She says that as such she was not responsible for arranging shadowing opportunities. Whilst we would accept that this was not her responsibility per se she could have organised shadowing and put it in place had she chosen to be proactive. If Ronnie Jones was able to do it then so could she. That said there was no evidence that the Claimant had ever approached Lisa Wingrove and asked her for assistance. Certainly the Claimant does not say that she asked Lisa Wingrove and that she refused.

[53]The position of Stuart Walker is the same. There is no evidence that he was asked or realised that the Claimant was seeking out shadowing opportunities. The Claimant says nothing about him in this respect in her witness statement.

[54]We have set out an account of the one meeting that the Claimant had with CI Brown elsewhere. We have found that that was a positive meeting during which CI Brown positively encouraged the Claimant to undertake shadowing activities. He passed that information on to Inspector Fyfe. He did not work locally and it was not realistic to expect him to take local staffing decisions as to the capacity for shadowing opportunities. He delegated that both to the Claimant herself and to Inspector Fyfe.

[55]It is correct that despite the fact that he ought reasonably to have been aware of the fact that the Claimant wanted shadowing opportunities he did not arrange them. The expectation of CI Brown was that as part of the PDR process there would be a formal record of the steps to assist the Claimant in her career progression. Inspector Fyfe never completed a formal PDR. That is not to say that he did not assist the Claimant. He did organise for the Claimant to work in fist dispatch and encouraged her to do so. She thanked him for his assistance in that respect. Once the Claimant expressly raised shadowing with him he told the Claimant what she needed to do to organise it. He expected a degree of proactivity from her. Thereafter some shadowing was arranged. The Claimant says it was insufficient. We accept that it was not straightforward to offer shadowing opportunities. It is the Claimant’s own evidence that MetCC was badly understaffed. Shadowing as the name suggests required doubling up. We find that the opportunities were limited. That conclusion is the same as was reached by the first tribunal. Allegation 4 – being required to supply supporting information for an application as a Deputy Duty Officer.

[56]The MetCC has a practice of appointing existing members of staff to the post of Deputy Duty Officer. Duty Officers were responsible for managing an entire team. In their absence their roles were covered by Deputy Duty Officers. In that role they would assume some, but not all the responsibilities of a Duty Officer. The policy that was in place at the times that concern us was that people were appointed to the position of Deputy Duty Officer for 12 months. This mean that there was an annual recruitment competition.

[57]The recruitment process for the role of Deputy Duty Officer was somewhat complex. The roles were posted. This was usually in the form of an email notifying staff that they might apply. A candidate who wished to apply needed to complete an application form that follows a now familiar competency based assessment. Candidates were expected to provide evidence based examples of how they meet each criteria.

[58]Candidates were encouraged and indeed expected to discuss their interest in applying with the Duty Officer who was their line manager. Once the application was completed there was a requirement that they submit it to their line manager for their comments. Those comments include stating whether the application is ‘supported’. The line managers comments are then forwarded to the managers manager (in all cases we are concerned with CI Brown). That manager would add their comments and again say whether the application was supported or not.

[59]Regardless of whether the application is supported or not the application is then placed before a panel who will allocate a score to each of the competency categories. Observers are present at those panel meetings from the recognised representatives. That score given by the panel will determine whether the candidate would be interviewed. There is a right to appeal any rejection at that stage.

[60]We considered the use of competency based assessment to be entirely in line with modern practice. It was not immediately clear to us what the purpose was of having the line managers and their managers comments on the application where the actual scoring was done by a panel. As it was initially explained to us the panel scoring did not take into account the opinion of the managers. We did not hear from any panel member and cannot assess the extent to which the comments of a line manager might influence the score given by the panel.

[61]The recruitment process set out above has been the subject of negotiations between the MPS and the recognised representatives of the staff and police officers.

[62]On 8 April 2019 the Claimant and the other supervisors for Team 5 were sent an email by her then Duty Officer Joanne Wood which informed them of an exercise where expressions of interest were sought for the role of Deputy Duty Officer. They were reminded that the forms needed to be sent to both line managers and asked to get the applications in in a timely manner.

[63]The Claimant had been told by Joanne Wood that as she had only recently been appointed as her line manager it would be inappropriate for her to assess the application. The Claimant, unsurprisingly, makes no complaint about that.

[64]A matter that the Claimant has relied upon is the treatment of her colleague Nadia Anwar both in the recruitment round for a Deputy Duty Officer role in May 2019 and then for a substantive Duty Officer role in September 2019. In the recruitment round in May 2019 Nadia Anwar like the Claimant was line managed by Joanne Wood who had only just been appointed. Joanne Wood had decided that she was unable to provide comments about the application and asked Stuart Walker to provide comments. The Claimant says, and we would accept, that because Stuart Walker was himself a candidate for the role he had a conflict of interest in providing comments on another candidate’s application. His comments were accepted by both Joanne Wood and CI Brown. Nadia Anwar complained about this unfairness and was ultimately offered an appointment as a Deputy Duty Officer. It appears that she then declined to take up the role as it required working with Joanne Wood if she stayed on the team and changing her roster if she moved teams.

[65]The Claimant further relied upon the treatment of Nadia Anwar in a further round of recruitment to the substantive post of Duty Officer. In that round Joanne Wood did comment on her suitability and was very negative indeed. The Claimant says that this is an instance of race discrimination. The difficulty we have is that we have no way of assessing whether that assertion by the Claimant is correct. It is true that Joanne Wood is a white woman and Nadia Anwar is not (we are not sure of her race or nationality). We have what are by any standards very negative comments on Nadia Anwar’s skills. There is also within those comments clear resentment by Joanne Woods that Nadia Anwar had challenged the obviously improper decision to allow Stuart Walker to comment on her competencies. If this had been a claim brought by Nadia Anwar then we would have expected the Respondent to provide an explanation for the negative comments. That would normally have included calling Joanne Wood to give evidence. But this is not Nadia Anwar’s claim. As such we are left with the fact that a non-white employee was criticised in part without any understanding of what was a reasonable objection to her application being reviewed by another candidate. That is as much as we can take from this evidence. We simply do not know whether the criticisms made by Joanne Wood are justified.

[66]The Claimant also suggests that CI Brown’s comments on Nadia Anwar’s application form support her claims. We have reviewed those comments. CI Brown undertook his own assessment of the examples given by Nadia Anwar. He is very complementary about one. Suggests the second is sufficient but says that the final competency of ‘Resource Management’ was an example of positive work but says that it reflected a high performing Band D example rather than the band C post which was the subject of the application. We consider his comments on the review to be moderate in tone and are well reasoned. He then goes on to say that he had had regard to the comments by Joanne Wood. He acknowledges that Nadia Anwar is not likely to accept them but says that they could not be ignored. He suggests that one element of the criticism of Joanna Wood is fair in that the application was made late and without prior discussion. He also says that he agrees with Joanna Wood that the application was made weaker because Nadia Anwar did not take up the post of Deputy Duty Officer when it was offered. He ultimately did not support the application but reminded Nadia Anwar that her application would be reviewed independently. He made some constructive comments about career progression. Having heard from CI Brown who was asked questions about his assessment we accept his evidence that he did his best to give a fair and balanced view on Nadia Anwar’s application.

[67]The application form referred candidates to guidance that would assist them with understanding what was required of a good application and explained the meaning of each competency – the MPS Performance Framework. We were also provided with a slightly later version of the guidance that was given to managers about a recruitment process for Duty Officers. We are satisfied that there was similar guidance given for the earlier recruitment process. That sets out the steps that we have referred to above. Claimant sent her application form to Inspector Andrew Inglis (her former Duty Officer) on 27 April 2019. She copied that e-mail to CI Brown. Within her e-mail she said she had concerns because: ‘there has already been unfairness and advantage given to other candidates in the live process’.

[68]The form completed by the Claimant had, under each competency, a box marked ‘Verifiers’. The Claimant had left that blank. We find that what was required in that section of the form is details of any person who might verify the veracity of the competency examples referred to. We were provided with an application form completed by Nadia Anwar for a further application round in September 2019. We see that she had completed the ‘verifier’ box by including the names of individuals who could comment on her examples.

[69]Upon receipt of the Claimant’s form Inspector Inglis sent the Claimant an e-mail. He said: ‘I have reviewed your application briefly. Can you please re submit as you have not shown who your verifiers are for the evidence that you are submitting in your application, for the role of deputy duty officer’. It is that request that the Claimant says was an act of direct race discrimination and victimisation.

[70]In fact the Claimant responded to Inspector Inglis and did supply additional documents. She did not allude to any unfairness at the time. She sent a new version of her form where she completed the ‘Verifiers’ sections giving the names of those who could verify her examples. When she was interviewed by Sophia Venosi the Assessor asked to investigate a grievance she brought in August 2019 the Claimant describes her complaint as being that ‘she was told that she needed evidence to support her application’. The Claimant has quite simply misunderstood or perhaps misrepresented what Inspector Inglis has asked for. He had not asked her for evidence. He had asked her to complete the box labelled ‘verifiers’.

[71]In her witness statement the Claimant sets out the basis of the concerns that she said she had about the process (and referred to in her e-mail of 27 April 2019). She says that she later discovered that not everybody was asked to supply supporting paperwork. We find that she was not asked to supply supporting paperwork. We find that the Claimant has misinterpreted Inspector Inglis’s request. The fact that not everybody was asked to provide more that what they submitted tells us very little. We do not know how those other people had completed the ‘verifiers’ section of the form. What we do know is that the Claimant had left it blank when first submitted.

[72]Whilst we return to it below in our discussions and conclusions we are extremely surprised that the Claimant brought a grievance where she referred to Inspector Inglis’s request for her to complete her application in full. It shows a remarkable lack of perspective to regard this as a disadvantage.

[73]The Claimant has suggested as part of this complaint that Inspector Inglis allocated two white staff members Liza Wingrove and Stuart Walker two shifts to complete their application form and gave them coaching. Within the guidance for managers there is a section that sets out an expectation that candidates would meet with their line manager and discuss their application and their suitability. On 8 April 2019 the Claimant was copied into an e-mail that suggested that those people interested in the Deputy Duty Officer role should speak with their line manager. In the circumstances it would be unsurprising if Liza Wingrove and Stuart Walker had met with Inspector Inglis. The Claimant goes on to say that Liza Wingrove and Stuart Walker were given ‘more than 1-2 shifts to complete their application forms’. She does not say anything about this specifically in her witness statement. She does not give any source of her knowledge. It would not be in the least bit surprising that, if they had asked, these two individuals were given some time to complete their applications. The Claimant was later given time to compose her grounds of appeal. We note the findings of the first tribunal about the Claimant’s tendency to put a gloss on the evidence. We accept her evidence that these two individuals were given time to complete their applications. We do not accept that they were given 36 to 48 working hours to complete a very short application form. There is no evidence that the Claimant asked for and was refused time to complete her application form. The Claimant’s evidence that Inspector Inglis mentored these two individuals is also very weak. She says that she observed him discussing their applications. We would accept that. In the information to candidates there is a suggestion that candidates should discuss their applications with their line manager.

[74]One feature of the recruitment process was that existing Deputy Duty Officers were permitted to apply to renew their roles. The role of Deputy Duty Officer would entail management responsibilities at a greater level than those of the Claimant’s role as a Supervisor. The competencies used in the assessment process asked for examples f the sort of management responsibility that a Duty Officer would ordinarily be exposed to. The effect of this was, we find, that the existing Deputy Duty Officers were likely to have more relevant experience that they could draw on to support their applications for a renewal of their posts.

[75]Inspector Inglis completed the first line managers comments on the form. His comments include a reference to the verifiers. He says that he had contacted them and that they had ‘confirmed the work’. We find that this was the purpose of his request that the Claimant complete the form. He then says that the Claimant had not worked on the First Contact Floor for some time. He said that he had ‘tasked [the Claimant] with arranging the training’ to allow her to work on the FC floor but noted that had not been completed. He says ‘the evidence shows potential’ but says it could have been stronger if the examples had focussed on the main role. One section of the form completed by Inspector Inglis asks about whether the Claimant had one year’s experience of both Dispatch and First Contact. He indicated that the Claimant had not. The form makes it clear that that lack of experience was not a bar to the application proceeding to the panel.

[76]CI Brown’s comments on the form are more full. He noted the lack of FC experience. He then addressed the evidence given by the Claimant in respect of each competency. He starts by saying that he thought that examples would be stronger where they related directly to MetCC management. He then expresses a view that the examples given are not strong. We consider that the reasons he has given are well explained and sit comfortably with the guidance that is given about what might be a strong example. He says that he does not support the application. He went on to say that he had given feedback to the Claimant and organised for Inspector Fyfe to agree shadowing opportunities and FC experience. The document is signed 7 May 2019 which is the day the Claimant met with CI Brown. Allegation 5- not being appointed to the role of Deputy Duty Officer

[77]The Claimant was informed that she had been unsuccessful in her application on 14 May 2019. The e-mail informing the Claimant of that decision was sent by Michael Wright. He gives some feedback in his e-mail. The primary reason that was given is that she had not met what she agrees was an essential criteria for the role namely that she did not have 1 year of experience working in the First Contact team. She agrees that she did not. The secondary reason was a particularly low score for the Claimant’s example of ‘Organisational Influence’. Guidance for what was required to demonstrate this competence is set out in the MPS Performance Management Framework. In her example the Claimant had said that she had witnessed a lot of unfairness at work. She then gave an example being what she said was the misuse of parking permits suggesting that their use was restricted to particular cliques. She also referred to managers not completing their full working hours. She then said that what she had done about this was to report the matter to the Senior Leadership Team. The feedback that the Claimant was given was that this was a particularly weak example. It was said that reporting suspected wrongdoing was something that every staff member would be expected to do. The feedback continues: ‘The applicant, who is a supervisor cites no evidence of taking any other action, for example challenging colleagues, having difficult conversations, showing strong leadership, leading by example and showing personal resilience. No evidence of positive outcomes is cited. This lack of detail makes the example a weak one that is below the standard required’.

[78]Having considered the MPS Performance Management Framework and the suggestions within it as to what might demonstrate this competence we find that the assessment provided to the Claimant for this example is unremarkable. The only positive from the example is the fact that the Claimant spoke up against perceived wrongdoing. It is by any reasonable standards a weak example to have given.

[79]We find that the Claimant had no prospect of being appointed to the Deputy Duty Officer role. She knew that she needed First Contact experience to satisfy an essential criteria of the role. She knew that she did not have that experience. Despite this the Claimant decided to appeal against the decision not to allow her application to proceed to the next stage.

[80]In her witness statement the Claimant has said on several occasions that Ronnie Jones was appointed to the position of Deputy Duty Officer despite the fact that he had not ‘passed’ the application process. This had been raised before the first tribunal who made findings of fact about this issue. The Tribunal had accepted the evidence of Ronnie Jones that he was not a Deputy Duty Officer at the material times referred to by the Claimant but was Communications Supervisor who was on occasions asked to ‘act up’ to cover the role of Deputy Duty Officer when nobody else was available. We are bound by those findings. As the Claimant appears to accept Ronnie Jones had been a Deputy Duty Officer and had subsequently been asked to act up on occasions. In contrast the Claimant had never undertaken this role. Allegation 7 – being given only 90 minutes to draft an appeal

[81]We take this allegation out of turn because it represents the end of the recruitment process. The Claimant had complained that she had ‘only’ been given 90 minutes (of paid time) to draft her letter of appear against the decision to not progress her Deputy Duty Officer application. She had said that that decision was an act of victimisation and was also harassment related both to race and disability. She said that Shabbir Alli and Inspector Fyfe were responsible. During the hearing the Claimant withdrew this allegation.

[82]We are not surprised that this allegation was withdrawn. The Claimant submitted her appeal by e-mail on 19 May 2019. She apologises for any errors but says that she had ‘only’ been given 1hr 30 mins to complete it. Her e-mail covering e-mail continues by making reference to general allegations of unfairness and discrimination. What the Claimant does not do is say who have only given her 1 hour and 30 minutes to complete her appeal or how long she had asked for. She does not do so in her witness statement. There really was no proper basis for this allegation of victimisation and it is difficult to see how any claim of harassment could have been sustained given the paucity of the evidence.

[83]The Claimant had responded to Michael Wright’s e-mail informing her that her application would not be progressed by asking for a full breakdown of her scores and the identity of the panel members and the union representatives present. That information was provided. The panel members were Micheal Wright and Martin Capon. The Police Federation had sent a representative but Steve Arnold, the Claimant’s former Trade Union Representative with whom she had a very difficult relationship was not. The Claimant’s scores reflected the feedback she was given she has a 4 and a 3 on two competencies but a 2 for Operational Influence. She had a very low score for the essential criteria.

[84]The Claimant’s appeal document is three pages long. It made no attempt to address the strength of her application. She does say that she has not been given opportunities to work in First Contact. Much of the rest is a general complaint about matters she considers improper or unfair.

[85]Superintendent Warby acknowledged the Claimant’s appeal. He wrote to her and set out the available grounds of appeal from the relevant policy. He continued as follows: I have read your email with your attached appeal together with your application. Your appeal contains references to many issues. I respectfully suggest that many of these are not directly related to your application but are perhaps giving context to your situation. Whilst these are important I need to consider the facts pertaining to your application in line with the grounds of appeal detailed above. I note from your email that you feel you have not had sufficient time to put the appeal together. In light of this, and that I need to better understand the specific points of your appeal for this process, I would offer you the opportunity to review and re-submit. In order to do this I am happy to approve 4-6 hours of a shift to do this and would recommend taking advice from the PCS on the composition.

[86]We find that this was a generous attempt to direct the Claimant to the obvious purposes of the appeal which were to examine whether the panel had reached an improper conclusion in not progressing her application. He very fairly allowed her additional time to do that. The Claimant responded declining Superintendent Warby’s request. Like much of her correspondence she made wide ranging criticisms of the MPS. She said: Unfortunately Metcc SLT have a serious problem with women of colour and have a cloudy understanding of what women empowerment looks like in 2019, the days of suffragettes are over. Metcc SLT have also failed to acknowledge and understand what institutional racism is within Metcc 2019, the kind Baroness Doreen Lawrence confirmed still exists in Feb 2019 this year to the Home Select Committee.

[87]In drawing attention to the Claimant’s tendency to litter her correspondence (and her witness statement) with wide allegations of institutional discrimination we do not seek to criticise her. She is entitled to hold and express those views. The difficulty is that the issue for Superintendent Warby was not some institutional problem but whether the assessment of the Claimant in the recruitment process was fair. He could not possibly investigate the Claimant’s entire experiences at MetCC to answer that question.

[88]The Claimant having declined the opportunity to refine her grounds of appeal Superintendent Warby proceeded to deal with the appeal. He dismissed the appeal. He told the Claimant that in reaching his conclusion he had looked at 6 other applications to ensure that the approach had been thorough. He explained why in his view the panel were correct in giving a low score for the example where the claimant had reported wrongdoing. He then went on to say: ‘However, I do believe the OCU can do more to develop all staff particularly BME females, and disabled or adjusted duty staff. I will be discussing this at SLT & would like to see a working group set up to explore this and make recommendations on how we can improve. This is not a token gesture to appease but a genuine effort to ensure all staff feel valued and supported in our processes. In relation to your personal development I support the view detailed by Cl Brown that a development plan incorporating shadowing duty officer shifts and FC experience should be agreed at the earliest opportunity between yourself, and lnsp Fyfe.’

[89]This is not a decision that the Claimant says is unlawful. We find that Superintendent Warby had undertaken a thorough review of the decision of the panel despite the lack of assistance given by the Claimant on the issues that he needed to address. He took the time to review additional applications which is to his credit. His analysis of the Claimant’s weakest example is consistent with the approach of everybody else and, had it been our role to do so, would have accorded with our own view of the example.

[90]The Claimant continues to discuss her career progression with Inspector Fyfe. After a meeting on or around 25 June 2019 Inspector Fyfe sent the Claimant an e-mail. He said that he was attaching the information that he had provided the other individuals in Team 1 who had told him that they were applying for the Deputy Duty Officer role. The material that was attached included the MPS Performance Framework but also some very useful materials giving tips on how examples could be best aimed at demonstrating the required core competencies. The Claimant has complained about other individuals being assisted with their applications. We find that had the Claimant approached Inspector Fyfe prior to submitting her application he would have sent her the same materials as he sent others. In her witness statement the Claimant says that ‘this only happened as I had gone to him complaining about being treated differently…..he had no interest in my career progression’. We do not accept that criticism is warranted. The materials sent were useful and sending them was very clearly designed to assist the Claimant. Allegation 6 - Refusing the Claimant time off for Counselling

[91]The Respondent provides as a benefit to its officers and employees access to a counselling service. Given the nature of the work undertaken by the Police Service it is unsurprising that this service is oversubscribed and there is a waiting list. In 2018 the Claimant had sought to access the service and attended an initial appointment on 8 November 2018. She sought counselling to deal with matters that had arisen in her private life which are alluded to in the first tribunal decision. She was assessed as suitable but was warned that there was a long waiting list. Her request for counselling was approved by Inspector Inglis. The Claimant makes no complaint about that. On 9 April 2019 the Claimant was sent an invitation to attend counselling appointments. Initially 5 (out of a total of 6) sessions in were booked all at 11am starting from 12 April 2019. The appointment letter was accompanied by a ‘client contract’. That document makes it clear that the ‘client’ is expected to attend on the dates and times given as demand for the service is high. 24 hours’ notice of any cancellation was required.

[92]Inspector Fyfe told us, and we accept, that when appointments are first offered the provider would normally be flexible if these fell within working hours and would endeavour to accommodate any changes. The Claimant did not ask for any changes at the time.

[93]It is important to note that the allegation that refusing the Claimant time off for these appointments is directed only at Inspector Fyfe. He tells us, and we accept that he had only taken over line management responsibility for the Claimant on 7 May 2019. The Claimant makes no complaint about the appointments that fell prior to that date.

[94]The Claimant’s first appointment was on 12 April 2019 at 11 am. She was rostered to work a night shift over 11/12 April and was due to finish at 6:30am. She sent an e-mail to Paul O’Donnell a Duties Supervisor – Posting on 9 April 2019 asking for her duties to be amended. Her request was accommodated by allowing her to finish her shift at 00:30 but she was required to utilise her TOIL allowance. The Claimant sent an e-mail on 17 April 2019 asking that the time she had spent attending the appointment, she said 4 hours, should be given back as TOIL as she had attended the appointment on a ‘rest day’. She received a response from Selda Emin, a Resource Planner informing her that she had checked with her manager and that the Claimant could not claim back time spent attending a medical appointment on a rest day. The Claimant asked the Counselling service to intervene on her behalf. She indicated that it was difficult for her to attend an appointment ‘with 2-3 hours sleep’. That was somewhat misleading as her request to leave her shift early had readily been granted. The issue was whether in effect she should be paid for the time she had taken off. She was told by the counselling service that the decision was on at her managers discretion. We note that during this correspondence the Claimant continues to suggest that she had been expected to attend an appointment with just 2-3 hours sleep. That is simply not the case. The need to allow the Claimant the time off to sleep had never been contentious. On 30 April 2019 the Claimant sent a copy of the e-mail chain of correspondence to Gordon Ifil She says: ‘I was informed that I would need to complete a 12 hour night shift and then attend a MPS counselling session at 11:00….and that would be within my own time and basically my problem’. The Claimant went on to describe this as a ‘malicious agenda’. We find that the Claimant’s e-mail misrepresents the real issue (that the time off was allowed but was unpaid) and suggests that her managers are insisting that she completed her night shift.

[95]One of the Claimant’s appointments was cancelled by the provider as it had been booked on a bank holiday. We find that that must have been the second appointment on 19 April 2019 which was Good Friday. The Claimant was told that that would be added back on at the end. There two were further appointments scheduled to take place on 26 April and 3 May 2019. The Claimant’s roster shows that she was not working on 25 and 26 April 2019 nor on 2 and 3 May 2019. The Claimant does not say whether any of these appointments were cancelled but there is no evidence that there was any act or omission by the Respondent that caused the Claimant not to attend. The circumstances that the Claimant refers to in relation to 12 April 2019 (being on a night shift before the appointment) did not arise in respect of those dates.

[96]The Claimant continued to press the issue of being paid for attending the appointment on 12 April 2019. She sent Carl Doherty an e-mail on 8 May 2019. She asked whether she was expected to take annual leave or use TOIL in order to take her appointments. She copied in Gordon Ifil who was dealing with her grievances and Human resources. She referred to the general policy which says that medical appointments should be taken outside of working hours where possible. She then set out the policy on Disability Related Leave. That policy provides for discretionary time off to support staff with disabilities. It suggests that disability leave might be taken to attend counselling or therapeutic treatment. Carl Docherty responded. He told the Claimant that he had spoken with ‘OH’ who had suggested that appointments could be moved. He pointed out the fact that the appointment the Claimant had wanted to attend was outside her working hours ‘albeit after a night duty’. He told the Claimant that ‘disability related leave’ was discretionary and was a decision for local management. He declined to show the Claimant as ‘on duty’ when she had attended the counselling session.

[97]Having not obtained agreement to being paid for attending the counselling session from Carl Docherty the Claimant then sent Inspector Fyfe an e-mail where she asked that the time she had been permitted to take off work prior to the appointment on 12 April 2019 was paid as ‘disability leave’. There was no immediate response by Inspector Fyfe in relation to that request.

[98]The Claimant had been given a counselling appointment for 10 May 2019. The roster we were provided with shows that the Claimant was not working on 9, 10 or 11 May 2019. The Claimant says in her witness statement that her attendance at that appointment was ‘not supported’ by Inspector Fyfe. She says that she was ‘working night shifts with minimal sleep, on medication and suffering from fatigue’ (para 75). The Claimant made no complaint at the time about anything Inspector Fyfe said or did about that particular appointment. We are satisfied that the roster we were provided with is correct. The Claimant did not have to work a night shift before her appointment on 10 May 2019. The Claimant sent a number of e-mails on 8 May 2019 dealing with her complaints about the appointment on 12 April 2019. In none of those e-mails does the Claimant allude to any difficulties attending an appointment on 10 May 2019.

[99]A possible explanation for the Claimant not mentioning difficulties with an appointment on 10 May 2019 is found in an e-mail she sent at 07:37 on 8 May 2019 to Carl Docherty where she says: ‘I have had to cancel these appointments for now’. Whatever the explanation we are satisfied that the Claimant did not ask Inspector Fyfe for any accommodation in relation to an appointment on 10 May 2019 and it follows that any suggestion that Inspector Fyfe refused to let her have the time off to attend that appointment is incorrect.

[100]The Claimant’s ET1 in claim no: 3203100/2019 does not assist in clarifying her claims. At paragraph 24 she says: ‘Whilst the Claimant's new line manager, Inspector Fyfe, was initially supportive in relation to the Claimant's ill health and disabilities, after a while the Claimant felt that he started to treat her differently and refuse her disability leave for counselling and medical appointments’. The list of issues says that the relevant refusals were on 8 and 16 May 2019. These can only be references to an appointment that the Claimant was to attend on 17 May 2019.

[101]The appointment was at 11am on 17 May 2019. The Claimant sent Inspector Fyfe an e-mail on 8 May 2019. She told him of the appointment and said: ‘There is no way I can attend [the] appointment in between 12 hour shifts and nights in current health’. She said: ‘can I be shown as working as normal 0630 – 1830 and OH appointment between 10-1300hrs’. Inspector Fyfe responded promptly by e-mail. He said that he had looked at the roster and seen that the Claimant would finish work at 18:30 on 16 May 2019 and would then start work at 18:30 on 17 May 2019. He said that that gave the Claimant the opportunity to attend her appointment at 11am on 17 May 2019. We accept that Inspector Fyfe’s understanding of the roster arrangements was factually correct. The appointment fell in a 24 hour period during which the Claimant was not rostered to work. We understand the Claimant to say that this was the first ‘refusal’.

[102]We find that it is incorrect to categorise what Inspector Fyfe said as a refusal to permit the Claimant to attend her appointment. What he did refuse was the Claimant’s request to change her shifts so that she was on a day shift on the day of the appointment together with her proposal that she be allowed paid time off during that shift to attend her appointment.

[103]The Claimant continued to press for changes to her shift pattern. On 13 May 2019 she sent a further e-mail to Inspector Fyfe suggesting that if he would not accommodate her request she would cancel the appointment. In his response to this in an e-mail sent on 16 May 2019 Inspector Fyfe again refused the Claimant’s request. He said that in his view the Claimant had followed the policy of ensuring that medical appointments were taken outside rostered hours. He repeated his message that the Claimant was not expected to work the night before her appointment and not until 18:30 on the day of the appointment.

[104]Inspector Fyfe told us, and we accept, that the Respondent’s policy was that staff should try to arrange medical appointments, including dental, occupational health and opticians appointments outside of normal or rostered hours. He had quoted that policy in his correspondence with the Claimant.

[105]Having considered the evidence as a whole we have come to the following conclusions. We find that the Claimant was not refused time off to attend the counselling appointment on 17 May 2019. What she was refused was a change to her rostered shifts. What she was requesting would have the effect of her taking time out of a paid shift to attend her appointment. We find that the Claimant could have attended the appointment on 17 May 2019 without any undue difficulty. She sought to persuade us that the emotional impact of a counselling session made it difficult for her to attend a nightshift several hours later. We do not accept that. Her own proposal was that she returned to work straight after the appointment. We conclude that the Claimant’s issue in respect of the appointment on 17 May 2019 was not that she was unable to attend that appointment but that she wanted to be paid whilst she did so.

[106]The Claimant sent inspector Fyfe a further e-mail on 18 May 2019. She took issue with a suggestion that had been made by Inspector Fyfe that she had some responsibility for the timing of her appointments and that she could have arranged them around her roster. Inspector Fyfe sent an e-mail to the counselling service and asked about their policy on rescheduling appointments around rostered duties. His e-mail is in very neutral terms. We find that he was genuinely attempting to find out the degree of flexibility available to the Claimant around her appointments. He received a response from the clinical lead of the service in the following terms: ‘We do have some flexibility if the person informed us of their shift pattern before counselling is started so that we can offer appointments around their timetables. Due to the fact that we offer a six session counselling block, all appointments are send out before the counselling starts, and the idea is for clients to come to inform us of any clashes with work or domestic arrangements, without this, once counselling starts, we do not change appointments.’

[107]We find that the response that Inspector Fyfe would have and did lead him to believe that if, at the outset, the Claimant had indicated to the counselling service that the dates offered to her clashed with her work commitments then there was scope for the appointments to be moved at that stage. When she gave evidence the Claimant accepted that she was aware of her roster at the time she accepted the appointments that were offered to her.

[108]On 19 May 2019 the Claimant sent an email to the clinical lead of the counselling service. In her response the clinical lead does not deal with the issue of changing appointments at the outset but says that her service is ‘being dragged into…a management issue’. We do not think that reading the e-mail objectively, the clinical lead said anything that contradicted what the Claimant was later told by Inspector Fyfe. The clinical lead did repeat the suggestion that once the 6 sessions had started they could not be changed. She did not say what might have been arranged prior to the sessions starting.

[109]Inspector Fyfe set out the results of his investigations to the Claimant in an e-mail sent on 24 May 2019. He told her that she could not be paid for attending an ‘OH’ appointment in her non rostered time. He told her that there had been flexibility that would have allowed the Claimant to vary any appointments offered to her at the outset of the counselling program. We find that his e-mail is a fair reflection of what Inspector Fyfe had been told.

[110]On 3 June 2019, sent a further e-mail to the Clinical lead and copied in Inspector Fyfe. She asserted that she had been told that the appointments could not be changed. She said that that was ‘very different’ to what she had been told by her managers. The Claimant referred to the issue of whether she needed to give credit for the 6 hours she had not worked before her first counselling appointment on 12 April 2019. The Claimant copied in Superintendent Joseph.

[111]On 3 June 2019 Inspector Fyfe instructed Paul O’Donnell that the Claimant’s absence between 00:30 and 6:30 on 12 April 2019 was to be treated as disability leave. The Claimant suggests that this decision was taken purely because she had copied Superintendent Joseph into her e-mail. Any such finding would require to be based on an inference as there is no direct evidence. Inspector Fyfe had no direct recollection but believed that he had granted disability leave. There is insufficient evidence for us to draw the conclusion that it was Superintendent Joseph who instructed Inspector Fyfe to do so.

[112]The Claimant in her witness statement describes Inspector Fyfe’s stance as going ‘above and beyond to sabotage my counselling program causing psychological and declining health through his bullying, gaslighting by playing with my weaker mental being’. We find that this language is disproportionate when we have regard to the stance actually taken by Inspector Fyfe and our findings above.

[113]It follows from our findings that the Claimant was not prevented from attending any appointment by inspector Fyfe or anybody else. Her need to take time off before the appointment on 12 April was accommodated albeit with a dispute about whether she would be paid for the time off. She was not refused time off to attend the appointment on 17 May 2019. We find that given that she had proposed that she attended work that day and went to the appointment during the day there was no medical or other reason why she could not have attended without any change to the shift pattern. Allegation 8 - Joanna Wood questioning the Claimant about ‘walking the floor’

[114]We find that the expression ‘walking the floor’ when used in the context of a supervisor at Met CC refers to moving about the floor observing the actions of a team and offering any advice or dealing with any difficulties.

[115]The Claimant says, and we accept, that on 9 August 2019 she was working alongside Joanna Wood. She says that on ‘two or three’ occasions Joanna Wood approached her and asked why she was not walking around the floor. She says that Joanna Wood was ‘intimidating’ and ‘aggressive’. She does not describe the actions of Joanna Wood that would support that language. The Claimant says that she was suffering with a flare up of her arthritis and taking painkillers. She says that Joanna Wood was aware that she was on recuperative duties and had an ergonomic chair.

[116]The Respondent has not called Joanna Wood to give evidence. The list of issues which has been agreed for some time clearly identifies Joanna Woods as a person said to have acted unlawfully. There is no real explanation for the failure of the Respondent to call Joanna Woods to give evidence. Whilst elsewhere we have found that the Claimant has a propensity to exaggerate that does not mean that we should reject her uncontradicted account of these events. We do however treat her descriptive words with some caution. We accept the Claimant’s account that Joanna Wood asked her on two occasions why she was not ‘walking the floor’. We have found that it was two occasions because that is what the Claimant said in an e-mail sent the following day and referred to below when dealing with allegation 10. We would accept that that would reasonably have been perceived by the Claimant as unjustified micromanagement. We would not accept that being reminded even on three occasions to ‘walk the floor’ would have been intimidating or aggressive in any physical sense.

[117]We accept the Claimant’s evidence that she was suffering from a flare up of her arthritis. However, she does not say that she explained to Joanna Wood that this was the case or that this was a reason why she was not ‘walking the floor’. The Claimant says that walking the floor was neither usual nor necessary. On the other hand there was evidence that Joanna Wood was an exacting manager not only towards the Claimant but towards others. The Claimant refers to this extensively in her witness statement (paragraph 63 in particular).

[118]We accept that the Claimant was annoyed at her usual practices being called into question particularly given the difficulties between her and Joanna Wood. This was exactly the sort of conflict predicted by Gordon Ifil. Allegation 9 – Joanna Woods accusing the Claimant of leaving her shift early.

[119]This allegation concerns the same nightshift that gave rise to the events relied upon in Allegation 8. At 05:50 on 9 August 2019 Joanna Wood sent the Claimant an email copying in Inspector Fyfe in the following terms: It was noted that you had logged off and left the FC floor by 0215hrs this morning, your shift was rostered until 0230hrs. Whilst you may well have been completing another task in the building prior to leaving it is professional courtesy to speak to the Duty Officer first rather than just logging off and leaving your operational post prior to the end of your rostered shift. Please ensure you do this in future.

[120]The Claimant does not dispute that she left the operational floor before the end of her shift. She says that she had logged on slightly early. She says that she had gone to the changing room to remove a back brace and to take medication. We accept that account. However, the fact that the Claimant had logged in early did not mean that Joanna Wood would have anticipated that she would leave early. The Claimant does not say that Joanna Wood was aware that she had arrived early. She was a supervisor and would have been expected to remain in post until the shift ended. Joanna Wood’s e-mail acknowledges the fact that the Claimant might have been working elsewhere in the building. She is careful not to criticise the Claimant just because she had logged off early. What she does say is that it would have been courteous if she had let Joanna Wood know.

[121]We recognise that this allegation needs to be seen against the events of the night shift and against the background of the poor relationship between the Claimant and Joanna Wood. We find that even taking this into account it is difficult to see how objectively Joanna Wood’s e-mail was anything other than a proper managerial step. The Claimant had left her post early without telling her manager why. Joanna Wood’s e-mail is factually accurate and we find that it was entirely unsurprising that it was sent. The evidence of the Claimant is that Joanna Wood was an exacting manager with the whole team. Allegation 10 – Inspector Fyfe criticising the Claimant

[122]This allegation flows from the allegation above. The Claimant responded to Joanna Wood. She copied in Chief Inspector Brown, Douglas Fyfe and Alli Shabir. The Claimant did not give the explanation for logging off early that she gave us. She did not apologise for the discourtesy of not letting Joanna Wood know where she was going. Instead she says that she has noticed supervisors leaving early and says that she has told senior managers about this. She suggests that Joanna Wood’s e-mail is ‘tit for tat’. She tells Joanna Wood that she will be minimising her communications. She referred to Joanna Wood speaking to her twice the night before about her ‘working practices’. We assume that is the ‘walking the floor’ issue we have dealt with above. She described Joanna Wood as ‘highly intimidating and aggressive’. She does not set out the factual basis which might support that language either in her e-mail or in her evidence before us. She ends by telling Chief Inspector Brown ‘I will not be putting up with further acts of bullying intimidation and aggressive tones’. If Joanna Wood had ben intimidating, then the Claimant was certainly not intimidated. Her response is combative and substantially less measured than the e-mail sent by Joanna Wood.

[123]Chief Inspector Brown responded to the Claimant on 12 August 2019. We find that his email was entirely appropriate. He said: ‘The message sent to you by Joanna Wood, your duty officer for the shift in question was clear, concise and polite. It did not accuse you of leaving the building early and fully considered you may have been completing another task at work, it is a simple and reasonable expectation for the future from the duty officer that you inform her if you are vacating your post early’. We would accept that the e-mail read as a whole would tell the Claimant that Chief Inspector Brown thought she was being unreasonable. We are not surprised. The Claimant’s response to Joanna Wood might well have been regarded as unreasonable. Whatever the state of their relationship it remained the case that on the night of 9/10 August Joanna Wood was in charge and she was entitled to point out that the Claimant’s behaviour was not what was expected. Chief Inspector Brown indicated, as he had done in his letter of 25 May 2019, that he thought that the Claimant and Joanna Wood would benefit from mediation (which the Claimant had declined). He repeated his advice that complaints would need to be evidenced and specific details given if they were to be investigated. He arranged for Inspector Fyfe to meet with the Claimant on his return from leave.

[124]The Claimant’s response was to e-mail Chief Inspector Brown and to tell him not to send her any more e-mails on this matter. She said ‘your reply is once again full of bias’ that it had caused her ‘further stress and flare up of conditions’. She told him that she had submitted a grievance ‘regarding your e-mail and other matters’.

[125]On 18 August 2019 the Claimant submitted a grievance in which she complained about her treatment. Her initial focus was on her treatment by CI Brown and we find was an immediate response to him suggesting that Joanna Wood’s e-mail to her had not been inappropriate. The Claimant’s grievance makes allegations of discrimination and is ‘protected act 7’

[126]The Claimant met with Inspector Fyfe on 20 August 2019. The Claimant in her witness statement says only that ‘He also appeared to criticise me regarding the incident on 9 August with Joanna’. The Claimant’s statement does not explain exactly what it was that Inspector Fyfe said that was critical of her. There were no contemporaneous notes of the meeting between Inspector Fyfe and the Claimant nor would we have expected there to have been. What Inspector Fyfe did was to send the Claimant an e-mail on 20 August summarising the discussions. The Claimant then responded adding further comments to what was written.

[127]The parts of the e-mail exchange that deal with the events of 9/10 August 2019 show that Inspector Fyfe asked the Claimant ‘if she had any details in relation to the unfairness’. Inspector Fyfe records that the Claimant said that she wanted to leave this to the grievance process. The Claimant does not contradict this statement when she added some comments. We there is nothing in Mr Fyfe’s notes of the meeting where he criticises the Claimant about not letting Joanna Wood know she was leaving early. The notes do show that he suggested to the Claimant that if she had observed others leaving early she may not be privy to the reasons for that – he gave one example. We find that he was pointing out to the Claimant that when she pointed to others who she had observed leaving early, she was making assumptions about whether that had been sanctioned in advance and/or the reasons for this. We are not surprised that Inspector Fyfe made this point. The Claimant was making assumptions about why others might be leaving early. It is consistent with the totality of the evidence that the Claimant would assume wrongdoing without any proper evidential basis.

[128]We do not find that Inspector Fyfe was criticising the Claimant. As such the factual basis for this allegation falls away. What is clear is that he was trying to deescalate the situation as best he could. In common with Chief Inspector Brown he raised the prospect of mediation but the Claimant told him that she would not engage.

[129]As we have said above the Claimant had brought a grievance in August 2019 naming CI Brown as one of the people she complained about. When she was interviewed by Sophia Venosi on 30 January 2020 she referred to CI Brown as ‘a bully’. She suggested that he had only moved her from Joanne Wood’s team because her trade union representative had forced the issue. She then said that he had supported Joanne Wood against her. We find that this must be a reference to this incident.

[130]CI Brown was not interviewed on a face to face basis by Sophia Venosi because her investigation was interrupted by the Covid Pandemic. Instead Sophia Venosi sent CI Brown questions to which he responded. He was not asked any questions about this particular incident. As a whole his responses to the questions were measured and gave an explanation for the positions he took in the meeting of 7 May 2019 and in the two recruitment exercises that had taken place in 2019. However, in summing up his position at the end of his response he said: ‘The individual has rightly challenged perceived unfairness, but the allegations made contain details that are factually incorrect and I do not accept them. I further more directly challenge and refute the unsubstantiated claim that is inferred that my actions amount to racist bias or bullying, and consider that repeated unsubstantiated claims against me alleging these most serious of issues amount to the bullying of myself and a lack of respect and courtesy for myself and the organisation’(emphasis added)

[131]The passage above that we have quoted above from CI Brown starts in measured terms. Then he sets out that he regards the attacks on himself as bullying by the Claimant. We readily accept that false allegations of racism or bullying can be very hurtful. The Claimant has made numerous allegations of discriminatory conduct within this case and within her correspondence. We do not consider CI Brown’s reaction to the criticism of himself as being of any great evidential value in respect of any discrimination claim but it is a matter of some importance in a victimisation allegation. We note that CI Brown was aware of the fact the Claimant intended to bring a grievance against him from August 2019. A slightly different concern arises from the passage we have underlined. Not only does CI Brown consider the Claimant’s complaints disrespectful to himself, he also feels they show disrespect to the organisation. We find that this demonstrates a common feature of institutions which is that when those institutions are challenged there is a tendency to close ranks and rally to the defence of the organisation. We find that that was CI Brown’s instinctive reaction and that is why he mentions it. Allegation 11 – showing the Claimant as only being available for dispatch

[132]This allegation was withdrawn by the Claimant on 16 January 2024 during the hearing. We refer to it briefly as the findings we make support conclusions elsewhere that the Claimant’s perception frequently leads her to allege that ordinary events have a sinister character. Here she had maintained that the fact that she was recorded on a ‘restriction sheet’ as working only in dispatch and not in first contact despite having been originally trained to work on both floors was a contravention of Section 15, Section 26 (relating to disability) and Section 27 of the Equality Act. She identified Inspector Inglis and Chief Inspector Brown as the persons responsible.

[133]The Claimant had not worked on the First Contact (‘FC’) floor since around 2017. She had raised the issue of working on the FC floor by early 2019. When her application made in April 2019 for appointment as a deputy duty officer was not progressed she escalated that issue. This was a matter discussed with Inspector Fyfe at his meeting with the Claimant on 20 August 2019. He said: ‘FC Supervisor development you confirmed you were happy and able to complete all the Supervisor roles in the FC although you were still a little nervous on the compliance desk, this will come with time. I advised you that you will need to ensure you are getting posted up to the FC floor to keep the skills and knowledge up going forward and you agreed’. It is clear that whether she had been posted as only available in dispatch or not she had done some work on the FC floor prior to that meeting.

[134]The Claimant sent an e-mail to ‘FC Postings’ on 27 August 2019 asking that she be considered for postings on that floor. She copied in Inspector Fyfe who had encouraged her to make herself available. She received a response which reads: ‘I believe you are shown on our restriction sheet to only be posted in despatch. If this is incorrect I will remove you from it and post you in both FC and despatch’.

[135]The Claimant has assumed that there must be some sinister reason why she had, for years, been asked only to work in dispatch. She asked Mr Fyfe for an explanation. He had no idea why she might have been shown as only available for posting to dispatch. This was rapidly corrected. There is simply no proper evidential basis for suggesting that Chief Inspector Brown or Inspector Inglis had placed a restriction on which floor the Claimant worked on in order, as she suggests, to stifle her prospects of promotion. In her witness statement the Claimant says: ‘I believe that Ronnie Jones, Inspector Inglis, Mags Mead and Chief Inspector Brown were those who decided to put me on a restriction list. They had set me up to fail, they had planned, plotted, and misused their positions of power to sabotage my career denying me equal opportunities’. The allegation was quite properly abandoned. What is surprising is that it was made in the first place. Allegations 12 and 13 – 7 September 2019 declining a request for disability leave and advising the Claimant that she could work from Lambeth and the discussion in the meeting on 14 September 2019. Reasonable Adjustments claims 4 and 5

[136]On 18 August 2019 Sham Patel sent an e-mail to all supervisors at MetCC at Bow. He informed them that a date had been agreed for a temporary closure of the Bow centre. The centre was to close between 0700 on 22 September 2019 and would re-open at 0700 on 26 September 2019. The supervisors were informed that all the First Contact operators and 40% of the dispatch operators would be expected to work from Hendon, 60% of the dispatch operators would be expected to work from Lambeth. An indication was given that there would be an attempt to accommodate the preferences of all staff members. The Claimant was copied into a further e-mail on 20 August 2019 and was asked to indicate her preference for working at Hendon or Lambeth during the closure.

[137]On 20 August 2019 the Claimant sent an e-mail in which she said that she was working at Hendon on 23 and 24 September on the day shift and on 25 September 2019 on the night shift. She requested a parking space on those dates.

[138]On 28 August 2019 Tracey Watts sent an e-mail to all affected staff saying that a number of enquiries had been received about parking at the alternative centres during the closure at Bow. She informed the staff that there was no commuter parking at Lambeth with the exception of blue badge holders and that at Hendon there was no weekday peak parking with the exception of blue badge holders but that there was a limited availability for off peak parking.

[139]The Claimant had a physiotherapy appointment that was booked for 0845 on 24 September 2019. She had a further appointment at 1530 on 23 September 2019. On 7 September 2019 the Claimant sent Inspector Fyfe an e-mail informing him of these appointments. She requested that she was permitted disability leave i.e. paid time off during the hours she was rostered to work to enable her to attend the appointment on 24 September 2019. She proposed that she do some admin work at Bow on 23 September 2019 so she could attend her further appointment on that day. She suggested that the night shift that she was due to work on 25 September 2029 might be difficult for her.

[140]Inspector Fyfe responded to the Claimant’s e-mail on the same day. He proposed that the Claimant worked at Lambeth. He said that with ‘shift slides’ she could attend her appointments on both 23 and 24 September 2019. He went on to address a point made by the Claimant that she might feel unwell after her physiotherapy appointment. His position was that that would have to be dealt with if it arose.

[141]The Claimant responded suggesting that it would be difficult for her to travel to Lambeth on a train. She asked if her request for disability leave was being declined and included a passage from the relevant policy that suggested that disability leave may be used to take time off for physiotherapy appointments.

[142]Inspector Fyfe says, and we accept, that where a person such as the Claimant was on ‘recuperative duties’ they were paid their full ordinary salary despite the fact that they may not be working their full contractual hours. He told us that it was the Respondent’s expectation that where possible medical appointments would either be taken outside working hours or would be taken in the hours that were not being worked due to working reduced hours as recouperation. It accords with common sense that a person who was already being paid, and not expected to work, would not be granted disability leave if any medical appointments could be attended without granting a further tranche of paid time off. Inspector Fyfe responded to the Claimant’s further e-mail asking about disability leave and said that as the appointments could be met during the ‘recuperative hours’ he did not think it appropriate to grant disability leave. He offered to have a face to face meeting with the Claimant on 13 September 2019 to discuss the issue. The Claimant responded by asking how she was expected to travel to Lambeth as she had been told that there was no parking there. Without waiting for a response the Claimant forwarded the e-mail chain to Superintendent Gary Warby.

[143]The Claimant had a meeting with Inspector Fyfe on 14 September 2019. There is considerable common ground between the Claimant’s account of what was discussed at that meeting and what Inspector Fyfe says about it. Inspector Fyfe sent the Claimant an e-mail on 17 September 2019 in which he set out his summary of what was discussed. The Claimant responded to that e-mail putting in some additional comments. There is one significant point of contention which concerns the issue of whether Inspector Fyfe accused the Claimant of being ‘agitated and loud’.

[144]It is common ground that during the meeting of 14 September 2019 Inspector Fyfe maintained his position that the Claimant would not be granted disability leave to attend her appointment(s). He explained the expectation that where hours had been reduced a person was expected to use those hours to attend any medical appointments. He pointed out that the Claimant had known of her appointments for some time before she asked for adjustments to her shift pattern on 7 September 2019. He told us, and we accept, that this was late in the day to facilitate changes.

[145]Inspector Fyfe told the Claimant, and it was his evidence before us, that it would not be possible to allocate her to doing Admin work at Bow. He said, and we accept that there was two reasons for this. Firstly he did not accept that the Claimant had sufficient administrative work to do to occupy her time. He knew that she had recently been given time to complete administrative work. However the more important reason was that he understood that the work that was being undertaken at Bow required disconnection of the utilities. He thought it was impossible for the Claimant to work at that site during the works. In her evidence the Claimant was reluctant to accept this. Indeed when interviewed by Sophia Venosi on 30 January 2020 as part of the grievance investigation the Claimant asserted that Inspector Fyfe had lied about this. The Claimant had no evidential basis for her rejection of the explanation she was given. She was simply suspicious of it.

[146]In response to the issue raised by the Claimant about parking at Lambeth he told the Claimant that there was an arrangement with a local hotel where parking was available or a reduced cost. He said that others had taken up this option.

[147]The conversation then turned to parking at Hendon. Inspector Fyfe was aware that daytime peak parking was unavailable other than for blue badge holders. It was in that context that he asked the Claimant whether she had a blue badge. In inspector Fyfe’s e-mail to the Claimant he records that he asked the Claimant whether she had a blue badge. It is in that e-mail that he says that the Claimant became agitated and loud. In her response the Claimant says, ‘there is a clear difference between loud and upset’. It is clear to the Tribunal from the exchange of e-mails that the question about whether the Claimant had a blue badge was not well received. Inspector Fyfe records her as asking him whether he wanted her to go and see the Chief Medical Officer to prove she was disabled. It is clear that there was a discussion about the statutory definition of disability. It is also clear that the Claimant referred to her Occupational Health referrals which had said that she was ‘likely’ to be disabled for the purposes of the Equality Act 2010. We find that Inspector Fyfe suggested that this was not determinative and repeated the caveat which was included on those forms that the test of whether a person is disabled is not a medical but a legal question. We find it likely that during this discussion Inspector Fyfe referred to his own medical conditions. In his e-mail to the Claimant Inspector Fyfe records that the Claimant told him he was ignorant regarding the Equality Act 2010. The Claimant does not deny that in her response.

[148]Doing the best that we can and having regard to the evidence as a whole we have come to the conclusion that Inspector Fyfe raised the question of whether the Claimant had a blue badge entirely appropriately. If the Claimant had a blue badge then there were more opportunities for parking her car. We find that the Claimant took unjustified offence to this and this led to a discussion of what is necessary to meet the statutory definition of disability. The Claimant assumed that she was being challenged on whether she had a disability. This led to a discussion of what was required to meet the statutory test of disability. We find that the Claimant got increasingly upset and used robust language such as telling Inspector Fyfe that he was ‘ignorant regarding the Equality Act’. He could quite reasonably have regarded that as being agitated and loud. What is harder to gauge from the evidence is whether Inspector Fyfe did anything improper. We are satisfied that it was entirely reasonable for the issue of whether the Claimant had a blue badge to be raised. It was also inevitable for the issue of disability to come up. The Claimant had after all asked for disability leave. Discussing that was one purpose of the meeting.

[149]The highest the Claimant puts the matter in her witness statement was that Inspector Fyfe ‘appeared to question my disabilities’. We would agree with the Claimant that the issue of whether the Claimant met the statutory definition of disability was discussed. However, there is no suggestion that Inspector Fyfe suggested that the Claimant did not have any symptoms that she claimed. In other words he did not question her veracity. At the highest he is recorded as saying that the question of whether such symptoms amount to a disability is a legal test. He is of course correct in that assertion.

[150]We find that this was a challenging conversation to have with the Claimant. In the first tribunal decision the tribunal upheld her complaints about being allocated a parking space. It was held that the Respondent ought to have known that the Claimant was disabled. We find that the Claimant was particularly sensitive about this issue at least in part due to the time it had taken for the Respondent to address this issue. When Inspector Fyfe attempted to discuss the issue of parking at Hendon this led to a discussion that became heated as the Claimant unleashed her frustration. We find that Inspector Fyfe tried to deal with the issues before him but got drawn in to a debate that he had started or intended to become involved in.

[151]Two further matters were raised in the meeting. The Claimant was told that ‘duties’ (those responsible for the roster) had decided that all operatives travelling to Hendon would be allocated an hour of travel time within their shift. The Claimant acknowledged that this would assist her. Finally Inspector Fyfe addressed the Claimant’s concern that she might feel unwell after her physiotherapy appointment. He told her that if that was the case she should inform the duty officer and go home.

[152]The Claimant did not take up Inspector Fyfe’s offer that she work from Lambeth. In her oral evidence she says that this would have been a long drive. It is just over 10 miles. She suggested that she would have travelled through the Blackwall tunnel from her home in East London. That is one route to Lambeth but it is not the shortest. A journey to Lambeth was shorter in distance than a journey to Hendon. The Claimant attended her physiotherapy appointment in the Isle of Dogs on 24 September 2019 and then travelled to Hendon. She says that she was tired by the journey and took the next day off sick. We accept her evidence in respect of that. We find that she would have had a far lighter day of travelling if she had taken up the offer that she worked at Lambeth. Allegation 14 and 15 – Not supporting the Claimant’s Application for a Band C Duty Officer post and Chief Inspector Brown advising Chief Inspector Wright that he did not

[153]On 24 September 2019 the Respondent advertised vacancy for three Band C Duty Officer roles. The roles were available on a part or full time basis. The email notifying staff of the vacancies was sent by Alex Elkomaty a MetCC Academy Lead. In his e-mail he have a contact number and encouraged anybody to contact him if they required ‘advice/help/guidance with their application’. Guidance was given to both potential candidate and Managers about how the recruitment process would be handled. The advice to candidates included a suggestion that candidates should met up with their line manager to discuss their suitability. They were told that the application process would be evidence led and that they were expected to provide evidence of their suitability. They were told that the evidence would be stronger if it detailed any relevant supervising experience or any previous deputising experience in the Met CC Duty Officer role. There was helpful guidance as to how the required evidence might best be presented. A deadline was provided for any application to be provided to a line manager of 15 October 2019. The line manager was expected to complete a section of the form giving their view of suitability. The form was then to be passed to the second line manager for their view of suitability before the assessment process was conducted by an assessment panel. As an alternative the form could be submitted directly to the Second Line Manager. The PCS Union and Police Federation were invited to attend that panel meeting. That would be followed by invitations to interview for shortlisted candidates. There was a process of appeal against a decision not to be offered an interview.

[154]We were told, and accept that this method of selecting candidates for promotion was one agreed with the employee representatives. We find that the use of key competencies and evidence based selection is intended to, and ought to, ensure that the selection process is based on merit. The information given to the candidates is useful and comprehensive.

[155]The Claimant had been unsuccessful in her application for a Deputy Duty Officer role. We have set out our findings in respect of that above. She was unsuccessful principally because she had not met one of the essential criteria which was for recent First Contact experience. The role that was advertised in September 2019 was for the substantive post of duty officer. This would have been a significant promotion for the Claimant. We have set out above that Inspector Fyfe had sent the Claimant materials designed to assist her to give better examples of her ability to meet the required competencies.

[156]The Claimant completed an application form and sent it to Inspector Fyfe on 15 October 2019, the deadline for the receipt of applications. She had not taken up the suggestion that she should discuss her application with Inspector Fyfe before it was submitted. In her e-mail the Claimant said that she had attached some evidence along with her application form in case Inspector Fyfe was unaware of ‘some of my experiences, qualifications and impending awards ceremony invitation’. She asked that her form was not submitted to Chief Inspector Brown because she had raised a grievance about his involvement with the Deputy Duty Officer process. She included the following as a final sentence in her e-mail: ‘I would also like to take this opportunity in personally thanking you for encouraging me and giving me the opportunity to progress in First contact when previously it had ben a shambles’. We find that the Claimant recognised that, as he had promised to do, Inspector Fyfe had played a part in ensuring the Claimant was exposed to working on the First Contact floor. The Claimant attached to her email evidence of her work and training as a trade union representative.

[157]When she completed her application form in two out of the three competencies the Claimant has used examples from her time as a Trade Union representative for the PCS Union. In the first one, ‘Operational Effectiveness’ she used exactly the same example as she had for her application for the Deputy Duty Officer role in April 2019. The panel had given her a score of 4 for this example. To demonstrate the competency of Organisational Influence - she described how she had assisted and mentored a colleague whom she had line managed.

[158]Inspector Fyfe added his comments to the form. He commented on the fact that the Claimant had submitted her form on the last day without any prior opportunity to discuss it with him. He then set out some positive aspects of the Claimant’s career including her recent re-skiing on the FC floor and her election as a union representative in the past. He then referred to the fact that when he had discussed the application with the Claimant he had asked her if she had taken on board the feedback from the previous exercise. He says that the Claimant had said that she had not as she did not agree with it. We find that the Claimant had given that indication as it was consistent with the stance she took when appealing the decision. He sets out the guidance to applicants which had suggested that stronger examples would relate to Supervisor or Deputy Duty Officer work in the MetCC. Whilst he acknowledged that examples drawn from work as a PCS representative provided evidence of working at a senior level he said, ‘they don't in my opinion have the strength, breadth and depth to them in relation to the role she is applying for Band C Duty Officer’. In relation to the example of the Claimant mentoring a colleague he said that it demonstrated ‘good MPS values’ but ‘The level of support and guidance given to the staff member is in my opinion what I would have expected of a good Band D Supervisor on my team’. He did not

[159]Inspector Fyfe said in his witness statement, and we accept, that he reviewed four applications for the role of duty officer. All four were from candidates who were non white. He supported the applications of two, these were Shabbir Ali and Sham Patel. The other candidate whose application was not supported was a non-white male.

[160]The Claimant’s application form was then passed to CI Brown despite the fact that she had asked that he not be shown her application. The evidence given by Inspector Fyfe is that there was simply no latitude for departing from the procedure that had been agreed with the Police Federation and PCS union. Both he and CI Brown said that whilst the managers comments were included on a form the marking of the examples was undertaken independently by the Panel. We accept that was the case but there remains the possibility that the panel would be influenced by the managers comments.

[161]CI Brown reviewed the evidence provided by the Claimant on the application form. He commented that the Claimant had supplied additional documents h=but he disregarded them as the process required the competencies to be demonstrated within the form (and subject to a word limit). We find that in doing that he was following the application process strictly. He commented on the fact that the Claimant had re-used an example from the previous application round when she had been unsuccessful. He suggests that the Claimant had not taken feedback on board. He agreed with Inspector Fyfe’s analysis of the example given by the Colleague of mentoring a colleague. He too says that this was ‘good work’ but did not demonstrate the ‘depth and breadth’ required of a Band C Duty Officer. In relation to the Claimant’s example used to demonstrate ‘Resource Management’ despite the fact that this did not relate to work as a MetCC manager he said that the examples had ‘positive indicators’, ‘shows high quality’ and was of a suitable standard. He concluded by saying: ‘I do note that Jugdeep has recently developed her skillset with FC experience following a development plan with her line manager. At this time there has not been experienced gained shadowing a duty officer as previously discussed, and the· line manager did not have opportunity to discuss the application before it was submitted as this was not mentioned to him in advance. Overall, taking into account the evidence present, the commentary from Jugdeep and the line manager I do not assess that Jugdeep Is ready for this process. The evidence base In my opinion is not sufficient and in terms of experience the shadowing opportunities in the duty officer role should be taken and utilised as part of a development plan with the line manager. Clearly, this report will be subject to an independent assessment by the panel but at this time it is not supported by line management.’

[162]The Claimant was told that her application was not being supported by her managers and immediately took exception to this. On 3 November 2019 she sent an e-mail to Michael Wright and others including Commander David Jackson. One point that she took in her e-mail is that she considers that because she has a degree in criminology any decision not to promote her is ‘questionable’. We do not agree with the Claimant’s assessment. The roles that the Claimant had applied for were managerial roles. What was required of those positions was demonstrable managerial skills. Whilst it is of course to her credit that the Claimant has a degree but having a degree does not offer any evidence of managerial skills whatsoever. The Claimant goes on to suggest that CI Brown had taken an ‘instant dislike to her’ and was victimising her because she had raised a grievance against him. This e-mail is Protected Act 8. The Claimant’s grievance was passed on to Superintendent Newman who was leading the process. He responded to the Claimant assuring her that her application would be assessed by an independent panel. It is clear that what he means by ‘independent’ is independent of the Claimant’s line management. He told the Claimant that competition for these roles was intense as there were 40 applications for just 3 roles. He informed her that if she was unsuccessful she could appeal. On the same day the Claimant completed a further Notice of Concern (a grievance) where she made further allegations particularly against CI Brown where she alleges that his assessment of her application was discrimination, harassment and victimisation – this is Protected act 9

[163]The assessment of the panel was that the Claimant was given a score of 2 for each of the competencies. The Claimant takes particular exception to having been assessed at this level for her example of mentoring a colleague. The accusation she levels at the MPS in her witness statement is that the MPS do not have any regard for compassionate management. Again we feel the Claimant is rather misunderstanding the assessment process. Both Inspector Fyfe and CI Brown both said in their comments that the Claimant’s example demonstrated good work. The question was whether it was an example that had sufficient depth to justify a significant promotion. For ourselves we would have reached the same conclusion as both line managers and the panel.

[164]The Claimant appealed the decision not to progress her application. Her grounds of appeal do not fucus on the assessment of her examples by the panel but suggest that her failure to progress was the fault of Inspector Fyfe and CI Brown. The appeal was unsuccessful. Superintendent Newman set out the reasons for dismissing the appealing a letter sent on 3 January 2020. Within those he said: ‘I can confirm that there was no cross marking during the paper sift and all applications were anonymised. The (lack of) support of line management that you refer to in your appeal had no adverse impact on marking on your application - as your form was assessed based on the evidence only and not the comments. I would refer you back to your feedback, which was provided under the core competencies that you evidenced in your application.’

[165]The Tribunal accept that the process that was followed was that described by Superintendent Newman. We did consider it odd that the process makes it mandatory for at least one line manager to comment on the form but then those comments were not used in the assessment process. However, that did appear to be the process that was followed. It is explicable in part by the fact that the Line Managers are required to certify matters that might otherwise disqualify a candidate (such as disciplinary proceedings). From the feedback given to the Claimant in the first exercise we are satisfied that the panel do carry out their own independent assessment. Sub allegation 14(b) – Inspector Fyfe saying he was unaware of requests for shadowing opportunities

[166]This is the first of two claims that are in addition to the complaint about the fact that the Claimant’s application was not supported by her managers. Both relate to a meeting between the Claimant and Inspector Fyfe that took place on 21 October 2019. The purpose of this meeting was to discuss the Claimant’s application for the substantive Duty Officer role. It took place after the deadline for submitting the application but before Inspector Fyfe added his comments to the application form (her refers to the meeting in those comments).

[167]There were no minutes taken of the meeting of 21 October 2019 nor would we have expected an informal feedback session to have been formally recorded. There is however some references to what had been discussed in Inspector Fyfe’s comments on the Claimant’s application form and in subsequent e-mail correspondence between the Claimant and Inspector Fyfe. It is clear from that correspondence that the opportunity for shadowing had been discussed.

[168]The Claimant was plainly aggrieved at being told that her application for the role of duty officer was not supported. That much is evident from the complaint she raised even before her application was assessed by the panel. We find that the meeting between the Claimant and Inspector Fyfe was a difficult one. The Claimant did not accept that there were any deficiencies in her application but Inspector Fyfe disagreed. It appears that the goodwill expressed by the Claimant in her covering e-mail where she thanked Inspector Fyfe for his assistance in her career development had evaporated when she was informed he would not be supporting her application.

[169]After the meeting the Claimant sent Inspector Fyfe an e-mail with the subject line ‘Acting duty officer shadowing opportunities’. That attached an earlier e-mail she had sent Joanne Wood and others on 28 April 2019 when she had raised the issue of shadowing opportunities. She suggested in her e-mail to Inspector Fyfe that he ought to have known of this request from his handover from Joanne Wood. She said: ‘I have been ignored every time I have tried to seek opportunities’.

[170]Inspector Fyfe responded to the Claimant the following day. He refers to this issue being discussed in the meeting. He said: ‘this is self-development which you need to take personal responsibility for and drive at no time have you approached me in person or via e-mail asking for this’. He then went on to say: ‘Now that you have asked me personally please review WFM and identify a couple of dates in the future when we have enough staff to take you out of FC or Despatch and that myself and Joanna Wood are in work to enable it to happen’.

[171]The way that the Claimant puts this complaint is best understood from her witness statement (paragraph 108). She says that she raised the issue of shadowing opportunities in the meeting on 21 October 2019. There does not appear to be any dispute about that and we accept that she did. She says that Inspector Fyfe said that ‘he was not aware of any requests’. Again that is entirely consistent with what Inspector Fyfe says in his e-mail of 22 October 2019 and we accept that he said the same during the meeting. The Claimant does not say that she ever approached Inspector Fyfe and specifically asked him to organise shadowing opportunities and that he declined. What she says is that he ought to have been aware of her wish to undertake those opportunities from his handover from Joanne Wood and from the fact that he was copied in to the letter of CI Brown after the meeting of 9 May 2019 when her career progression was discussed.

[172]The following passage of CI Brown’s letter is important. He said: ‘I explained that I supported you gaining the requisite experience in FC without delay and that planned exposure to the duty officer role, along with service delivery manager roles are reasonable and would fit with a personal development plan. The provision of the postings would be subject to operational capacity but they would be supported. I advised that I would pass this to lnsp Fyfe, however It Is critical that on your one to one with your line manager that you articulate your expectations for development, and likewise lnsp Fyfe will articulate his expectations for your development and serve objectives accordingly. This would be recorded on your open PDR and there should be no ambiguity- to be clear though there is ongoing and sustained support for you to develop….. I did make mention that you would need to manage your expectations of line managers who do have a number of responsibilities and competing demands.’

[173]We find that CI Brown had envisaged that the Claimant and Inspector Fyfe would proactively discuss her career development when they held 1-2-1 meetings and that the outcomes would be formally recorded in her PDR (Professional Development Review). There clearly were discussions and those resulted in arrangements being made for the Claimant to be posted to First Contact to gain experience. However, those discussions were not formally recorded. Inspector Fyfe never completed a PDR for the Claimant.

[174]We find that whilst Inspector Fyfe was aware that the Claimant sought support with her career development he had focussed on providing her opportunities in First Contact. The Claimant had not specifically raised shadowing opportunities with him and he did not do anything about that proactively. Sub allegation 14(c) – Inspector Fyfe telling the Claimant ‘she could be her own worst enemy’ and that she was ‘not good enough’

[175]The comments that underly this allegation are said to have been made in the meeting of 21 October 2019. Inspector Fyfe denies the specific language. However he does not deny the sentiment behind both comments. He had in his comments on her application commented upon the fact that the Claimant had said that as she did not agree with the feedback from her application as a deputy duty officer she had not adopted it. We find that that comes close to telling the Claimant she could be her own worst enemy. Inspector Fyfe denies using the phrase ‘not good enough’ however that is most certainly the thrust of his feedback on the Claimant’s application. A sentiment that later CI Brown and the panel agreed. The application form was adjudged not to be ‘good enough’ to secure the promotion.

[176]We do not think it necessary to go further than to say that we accept that Inspector Fyfe, when giving feedback to the Claimant, did convey the sentiment of the two phrases that the Claimant has relied upon. We return to the reasons for that below. Allegation 16-The Claimant being told she was unsuccessful in the Duty Officer application process

[177]The Claimant has withdrawn this allegation. Had this allegation remained an issue we would have concluded that the reason that the Claimant was unsuccessful was that her application was judged to be if an insufficient standard in a marking process that disregarded any comments by line managers. As such had the Claims not been withdrawn they would have failed. Allegation 17 – Hostile and intrusive questioning of the Claimant by Inspector Fyfe.

[178]The Claimant’s grievance(s) presented on 18 August 2019 were being investigated by Sophia Venosi. She had been invited to attend an interview on 30 January 2020. On 13 December 2019 she sent an e-mail to Inspector Fyfe and Alli Shabbir asking that she be ‘shown’ as being in a meeting with Sophia Venosi on 30 January 2020 between 09:00 and 15:00. She said that she was working as normal at Bow on all other times.

[179]Inspector Fyfe responded by e-mail on the same day. He said that the Claimant had not explained what the meeting was for and why it was likely to take a full tour of duty to complete it. He asked the Claimant to provide further information so he could review the request. The Claimant responded promptly informing Inspector Fyfe that the meeting concerned her grievance and pointing out correctly that the 6 hours she had asked for was not a whole shift. Inspector Fyfe asked the Claimant to clarify that she would be working at Bow before and after the meeting. Once the Claimant responded and clarified that that was the case Inspector Fyfe agreed to the Claimant’s proposal.

[180]The Claimant does not complain of the content of the e-mails. She says that Inspector Fyfe questioned her ‘in the corridor’ about the nature of the meeting and the amount of time she would be out of the office having assumed she would be away for the whole shift.

[181]Inspector Fyfe denies that he has ever behaved in a ‘hostile’ manner towards the Claimant.

[182]The Claimant’s account of Inspector Fyfe asking her about the purposes and timing of the meeting in a corridor does not sit comfortably with the fact that he asks those question by e-mail. When the Claimant responds she does not suggest that Inspector Fyfe had already asked her that. Given that she has no hesitation about raising complaints we cannot accept that he had done so. That leaves the possibility that he did so after she answered his e-mail questions. That would also be unusual. He had already been given that information. The questions that were asked by e-mail mirror exactly what the Claimant says was discussed orally. The Claimant wrote a long detailed complaint about Inspector Fyfe on 20 December 2019 only days after the incident she says occurred in the corridor. She sent that complaint to the Bow Centre Manager Andy Dunn. This is protected act 11. She attaches the e-mail correspondence we have summarised above. She complains about Inspector Fyfe ‘zooming into confidential items I do not wish to discuss with him’. She makes no reference at all to any further oral meeting. In her witness statement she says that ‘Andy Dunn did nothing, he was just bidding time as he was retiring soon’. In fact Andy Dunn wrote back to the Claimant and explained why he was not the appropriate person to investigate her complaints.

[183]The Claimant completed her ET1 on 22 December 2019 9 days after the events of 13 December 2019. This is protected act 10. In reference to this incident the Claimant describes Inspector Fyfe as: ‘misreading and questioning the Claimant's request to attend grievance investigation meetings’. We find that misreading can only be a reference to the fact that Inspector Fyfe’s e-mails show that he misunderstood how much time the Claimant was asking for. The Claimant says nothing about any hostility.

[184]When the Claimant first asked to be shown as attending a meeting she did not explain the purpose. 6 hours is a lengthy time for attending a meeting within Central London. We consider that being asked for more information was inevitable. We accept that the Claimant explained in her first e-mail that she was going to attend work either side of the meeting.

[185]In assessing whether what the Claimant says happened in the corridor is correct we have had regard to the entirety of her relationship with Inspector Fyfe. By December 2019 we would accept that relationship was strained. We find that Inspector Fyfe knew that the Claimant had raised a grievance about him. That does give rise to the possibility of hostility. Against that, Claimant does not say what it was about the questions she was asked orally that was ‘hostile and intrusive’. If the Claimant suggests that being asked for the purpose of the meeting was intrusive then we cannot agree. She was taking 6 hours out of a working day. The Claimant puts the label ‘hostile’ on the questioning without any explanation. We do not find that there is sufficient evidence from that bald statement for us to be able to accept her description. The Claimant accepts in her witness statement that the e-mail exchanges that she had with Inspector Fyfe could not be regarded as ‘hostile’. Given the Claimant’s propensity to see ordinary events as sinister we cannot place a great deal of weight in this instance on her subjective feelings about what might have been said.

[186]The Claimant has not shown that it is probable that there was any corridor discussion. We think that she has got that wrong. Insofar as the e-mails reflect the discussion that did take place we do not accept that they are hostile or intrusive. If follows that we are not satisfied that the Claimant has established the factual basis for this allegation. The Covid Pandemic

[187]Allegation 17 was the final allegation raised in the Claimant’s third claim. The Claimant’s fourth and fifth claims all arise against the background of the Covid pandemic.

[188]On 7 March 2020 the Claimant sent an email to Sham Patel. In that e-mail she complains about the way Joanne Wood has treated her. That is protected act 12. It does not appear that any action was taken on this at the time.

[189]On 11 March 2020 the Claimant sent an e-mail to CI Andy Dunn in which she reiterated her complaints about Joanne Wood. This is protected act 13. She asked him to keep the complaint confidential. He responded saying very sensibly that he would not be able to take any action if he maintained complete confidentiality and asked the Claimant if she would consent to him discussing the complaints with senior management. The Claimant then sought a meeting. CI Andy Dunn declined to meet with the Claimant explaining that he would not be the appropriate person to deal with her grievances against CI Brown and Joanne Wood. He repeated his request for the Claimant’s consent to allow him to discuss the complaints with others. It seems that there was no further action at that time.

[190]The Claimant’s first two employment tribunal claims were listed for a final hearing commencing on 24 March 2020. The Claimant wrote to Inspector Fyfe asking that her attendance at the Tribunal be shown as her being on duty. In a response sent on 15 March 2020 Inspector Fyfe responded saying that having taken advice from HR the Claimant was not entitled to be treated on duty during the Tribunal hearing. The Claimant responded by saying ‘The below is not correct advice. I have attended Employment Tribunals before’. We refer to this because it is a further instance of the Claimant contesting every issue that does not correspond with her own wishes. We find it most unusual that she would believe that her employer should pay her to bring proceedings against the organisation.

[191]What is usually referred to as the first national lockdown was announced on 23 March 2020. The Claimant was told by her GP that due to her health the should be ‘shielding’. Her need to do so at that stage was accepted by the Respondent.

[192]Inspector Fyfe also has health conditions. He too was advised that he should be shielding and remain at home. The same was true of Joanne Wood.

[193]The work of the MetCC had to continue. Any employee without a medical reason not to was required to attend work. The core role of those working in First Contact or in Dispatch could not be done by staff working from home. That work required the technology and equipment only found in the premises of the MetCC.

[194]Superintendent Warby tells us and we accept that in response to the pandemic the MPS set up a Pan London Command Structure for the Pandemic with localised structures in place for each business group. For Met CC Supt Kier Newman was Gold and Cl Chris Clarke was Silver. They oversaw all the policies, operational instructions, Health & Safety, PPE and staff, with PCS & Police Federation engagement. Allegation 18 – being excluded from meetings for shielding staff organised by Tracy Mostyn.

[195]In order to support staff members who were shielding Tracy Mostyn, a Staff Engagement and Wellbeing Manager decided to conduct teams meetings for staff shielding at home. We did not hear from Tracy Mostyn. What we do have from her is a response to a question she was asked during a further grievance investigation. We also had evidence from the Claimant, Inspector Fyfe and Shabbir Alli all of whom comment about this.

[196]There is no dispute that the Claimant was never invited to join the teams meetings set up by Tracy Mostyn. The Claimant believes that she was singled out for this treatment because of her various protected acts. In her witness statement the Claimant says that all Duty Officers, including Inspector Fyfe, were asked for a list of staff who were shielding. She says that he did not include her on that list. We find that the Claimant has inferred that she was not included on a list because she was not contacted. Whilst that is a possible inference it is not the only possible explanation.

[197]Tracey Mostyn sets out an explanation of events when she is asked to respond to the Claimant’s grievance. We note that at the time the Claimant was not complaining about Tracy Moystn herself. It is necessary to quote extensively from that explanation: When the initial lockdown occurred, vast numbers of staff were either sent home, contacted or left the work floor at their request. It was somewhat chaotic. I suggested that we get in contact with staff - in particular those staff whose own line manager may also be shielding as of course their hierarchal chain would have been broken temporarily in those early first days. The list I received was over 200 staff. I started ringing each one - only managing to speak to approx. 15-20 a day -this was clearly not going to get through them all efficiently. Those I did speak to, I offered to keep in touch via email or asked whether they were happy to continue contact through their line manager. As these were early days and we were not sure how long this would last, many decided just to maintain line manager contact and only I collected a small % of those I contacted email data. After I believe two weeks as things began to settle - I sent communications out to all Duty Officers to advise them as it was clear I was not going to be able to speak to all the staff on the list, and by that time many I was calling, had already been in touch with their line managers or an alternative manager so it was somewhat duplication. So my communication changed to offering the Duty Officers and supervisors, to pass on my details and the opportunity to be added to a contact list for both emails and online meetings to keep in touch. I think I must have received a handful more but really just a handful. By the end I think I had collected 54 out of the 270 that I think ended up either shielding or working remotely. I think looking back through the chaos, the likelihood of every manager or supervisor being aware of this "service" for the want of a better word, is perhaps very low and therefore the chance that staff did not get offered the chance to join the Zoom or receive emails was therefore high. I also had a handful join who did indeed join through word of mouth through their colleagues it was rather ad-hoc. I am disappointed to hear that someone who was shielding and wanted contact didn't get the opportunity. However to say it was chaos is an understatement and we had nothing set up that could have prepared us for this. I do feel responsible in part as clearly some breakdown has happened and now we have at least one member of staff who feels undervalued, or disadvantaged by not having access.’

[198]The first Zoom chat organised by Tracy Moystn did take place on 29 April as she says. On 30 April 2019 Tracy Moystn sent out an e-mail with an update to shielding staff members. This was later was sent to her by a colleague Mark Robertson. One of the matters discussed in that email relates to premium payments. A decision had been taken to maintain premium payments for shielding staff members. The Claimant had been told about that by a colleague as early as 7 May 2020 (when she made a claim for payment). The Claimant does not tell us when she first became aware of these Zoom meetings. Allegation 19 – Failing to keep in touch with the Claimant between March 2020 and September 2020

[199]The Claimant says that there was a failure to keep in touch with her between March and September. She says that this was victimisation by Inspector Fyfe and Tracy Mostyn. The allegation against Tracy Mostyn appears to be limited to the facts of Allegation 18. It is therefore the allegation against Inspector Fyfe that we shall focus on. The allegation was also levelled against Shabbir Alli but that was withdrawn. In fact as we set out below Shabbir Alli did contact the Claimant on a reasonably regular basis.

[200]The Claimant says in her witness statement: ‘I received no correspondence or contact from Inspector Fyfe, as my line manager, save for an email on 25 August 2020 regarding arrangements for a welfare officer’. A point the tribunal raised during the hearing is not unimportant. The Claimant criticises Inspector Fyfe for not contacting her. However, at no stage during the period she complains of did the Claimant make any attempt to contact Inspector Fyfe. She had his email address and she could have telephoned him. She did not.

[201]Inspector Fyfe was shielding. He told us and we accept that it was decided that he should undertake project work for the business change team from home and that he would delegate his day to day responsibilities for managing staff to Shabbir Alli and Sham Patel the two Deputy Duty Officers. He remained available to those two officers to assist them if necessary.

[202]The Claimant criticises inspector Fyfe for not following the sickness absence policy. Rather unrealistically in our view given that there were some 200 officers shielding the Claimant suggests that despite the lockdown somebody ought to have visited her home to check on her welfare by standing in the street. We consider this unjustified. The Respondent was not treating those people shielding as if they were on sick leave. They were not. They were shielding. The Claimant may have been unwell but she was treated as though she was shielding.

[203]The Respondent has provided a contact log of contact and attempted contact with the Claimant in this period. The Claimant has reported sick on 16 March 2020. She was telephoned the next day by Inspector Fyfe.

[204]The Claimant says that Shabbir Alli told her that Inspector Fyfe did not want to talk to her and that he had instructed Shabbir Alli to deal with her. Shabbir Alli denies that he said that Inspector Fyfe did not want to talk to the Claimant. We find that he did explain that he had been asked to deal with the Claimant on behalf of Inspector Fyfe.

[205]The contact log shows that Shabbir Alli contacted or attempted to contact the Claimant on a number of occasions. He spoke to her in April 2020 and there was reasonably frequent e-mail correspondence.

[206]The Claimant contacted Shabbir Alli about premium payments on 7 May 2020. The Claimant had included this as a free standing aspect of her claim. She had said that her claim for premium payments was ‘ignored’. The email correspondence between the Claimant and Shabbir makes it quite clear that he submitted the claim for payment to Inspector Fyfe for approval in the early hours of 8 May 2020. Inspector Fyfe was unable to process the payment from home and e-mailed Shabbir Alli asking him to do so on 12 May 2020. Shabbir Alli then told the Claimant that it had been approved but the cut off for payroll had been 8 May 2020 and that she would be paid in due course. The Claimant’s request was not ‘ignored’ and the Claimant knew it had not been before she issued her claim.

[207]Shabbir Alli contacted the Claimant twice by e-mail in June 2020. On 8 July 2020 he sent her a long update about the fact that the Government advice about shielding was about to change from 1 August 2020. The Claimant responded on 9 July 2020 with a further claim for premium payments and raising a concern that she had not been referred for an occupational health assessment. On 15 July 2020 Shabbir Alli contacted the Claimant asking for details for the OH assessment. He then completed the referral as requested.

[208]On 20 July 2020 Inspector Fyfe was contacted by Sophia Venosi who told him that the Claimant was concerned about the level of contact. She asked whether a Welfare Officer could be appointed. Inspector Fyfe suggested that Shabbir Alli took on that role. He said: ‘As Shabbir Alli is the only person who has been able to make contact with Jugdeep it makes sense for him to be her welfare officer going forward’. Inspector Fyfe has a record within the contact log of the fact that he attempted to telephone the Claimant on 17 July 2020. He says that the Claimant did not pick up. The Claimant says that she received no missed calls or messages. The evidence is thin either way but the fact that Inspector Fyfe was able to contribute to the Contact Log persuades us that it is probable that he did attempt to call the Claimant. That is supported by his reference to Shabbir Alli as being the only one able to make contact. That suggests that others had tried unsuccessfully.

[209]There was a lot of correspondence in the bundle about efforts to appoint a welfare officer to assist the Claimant. The Claimant declined to have Shabbir Alli as a welfare Officer. He then made a number of other suggestions to assist the Claimant. The Claimant said that she did not want anybody that worked within MetCC as a welfare officer. Those discussions continued into August 2020.

[210]On 12 August 2020 Shabbir Alli sent the Claimant an e-mail informing her that steps were being taken to get people who had been shielding back to work. The Claimant said that she was very concerned by that and outlined 11 points on the telephone. On 14 August 2020 she followed that up with an e-mail setting out 25 separate concerns. These included allegations of disability discrimination and this was Protected Act 14.

[211]On 18 August 2020 the Claimant was notified by Sophia Venosi that her grievances were not upheld. She was informed of her right to appeal and she exercised that right. No claims arise from the grievance process although the Claimant has repeatedly expressed her views that the grievance process was not fit for purpose.

[212]The Claimant submitted a further grievance on 31 August 2020. This is protected act 14. The grievance includes complaints about how she perceived she had been treated whilst shielding and the instruction that she return to work. The Claimant suggests that ‘I did not have any contact for months’ and says that she could have been dead or in hospital. Our review of the contact that there was shows that that is a considerable exaggeration.

[213]Inspector Fyfe has said that he attempted to telephone the Claimant on 25 August to discuss a welfare officer. The Claimant accepts that he e-mailed her on that day. We find that it is likely that he did try and contact her to discuss this. Allegation 20 – Liza Wingrove taking CCTV images of the Claimant

[214]This refers to an incident that is dealt with by the first tribunal. It concerns an occasion where Lisa Wingrove took screen shots of the CCTV at Bow. The Claimant only learned that she had done so when she saw a chronology prepared by Lisa Wingrove in connection with the first two claims. The allegation was originally levelled against 5 people as both harassment related to disability and victimisation. The Claimant withdrew her claims against everybody except Lisa Wingrove.

[215]The first Tribunal made the following findings:51. On 24 July 2018 the Claimant had come to work and completed 4 hours of overtime on what would otherwise have been a day off work. Liza Wingrove asked her if she had parked using the team parking pass which the Claimant had. This was not a date that the Claimant had been allowed to use the team parking pass. Liza Wingrove downloaded CCTV to show that the Claimant had, in her view, misused the team parking pass but she did not take any action in respect of this.

52. The poor working relationship between the Claimant and Liza Wingrove is evidenced by the fact that Liza Wingrove kept a log of her interactions with the Claimant. That shows a high level of suspicion of the Claimant and her motives. In turn the Claimant unjustifiably suggests that this is a log of her ‘criminal activities’. We find that there was a great deal of mistrust between these two employees. It is not necessary for us to go any further than that in order to resolve the issues we need to decide.

[216]There is no dispute about the fact that Lisa Wingrove did make still screen shots from CCTV. The context is set out in the first Tribunal decision. Allegation 21- Not being notified of vacancies for the Deputy Duty Officer roles – 12 August 2020

[217]As we have indicated above Deputy Duty Officers were appointed on a 12 month fixed term basis. We find that the Claimant must have been aware of that in general terms.

[218]On 16 July 2020 an e-mail was circulated concerning the Deputy Duty Officer recruitment process by Amanda Antoine. She said: ‘May I request that you reinforce the need for Duty Officers to ensure they contact those staff that are shielding and make them aware of the Deputy Duty Officer process that launched on Monday’.

[219]Inspector Fyfe said during a subsequent grievance process, and we accept, that he had delegated the task of circulating information about the recruitment process to Shabbir Alli. Shabbir Alli has accepted that he failed to circulate information about the process to all those shielding at home. In an email to Inspector Fyfe who had asked him about it he said: I don't believe I informed EO Jugdeep Mahal or any other supervisors that were off at the time about Deputy Duty Officers Process. To be frank I had a lot going on at work at the time due to COVID and also trying to manage numerous staff that were in self-isolation, as well dealing with the normal day to day issues on team. I had sent other emails to Jugdeep to keep her updated with certain topics, but I must have completely forgotten to send this specific email to Jugdeep and any other supervisors at the time that may have been interested in applying for the role. Allegation 22 – Requiring the Claimant to return to work on 10 September 2020 Reasonable Adjustment claim 6 and 7

[220]There are two aspects to this complaint. The first is that the Claimant objected to being asked to return from shielding to work at Bow. The second is that the Claimant says that there was no BAME risk assessment done before she was required to return.

[221]As we have set out above from July 2020 Shabir Alli had been keeping the Claimant informed about changes to the Government guidance. The Claimant was clearly very concerned about a return to work and as we have recorded above set out a list of 25 concerns that she had about returning. Her position was that she ought to be permitted to work from home. She does not dispute that that would not be possible for her existing role as a Supervisor to be carried out remotely.

[222]We shall not attempt to summarise the Claimant’s e-mail where she sets out in 25 paragraphs her complaints about how she had been treated such shielding and towards the bottom of that list her desire to be given a role where she might work from home and her concerns about being asked to return to the office. It is important to record that no direct response was sent to the Claimant dealing on a point by point basis with the 25 points she put in her e-mail. Shabbir Alli says that he sent a copy to Mr Dunn, the Centre Manager. Assuming that to be right there was no formal response. Mr Dunn would have been in a good position to provide assurances of the steps taken to make Bow Covid secure. We agree with the assessment made by Duane Baird in his grievance outcome report ‘it was reasonable for Jugdeep to expect a more thorough response’. We would say however that many concerns were addressed although not to the Claimant’s satisfaction in a fragmented manner.

[223]In March 2020 GPs had been asked by central Government to identify patients who were ‘clinically vulnerable’ and advise those patients to shield. The Claimant was one such patient. Moving towards 1 August 2020 the Government advice changed. The advice was that other than very limited categories of clinically vulnerable people it was safe for employees to return to a covid secure workplace.

[224]The Claimant had been referred for a specific Covid OH Assessment. That took place on 29 July 2020. The report usefully sets out the assessment of the Claimant’s particular vulnerability and the situation prevailing at the time. It says: As you are aware, Mrs Mahal has been shielding for Covid 19 due to underlying medical conditions after receiving the letter from her GP. She also reports some perceived work related stressors as Impacting on her wellbeing. I can confirm that Mrs Mahal Is In the clinically vulnerable group for COVID-19 and their risk category is A [lower risk] and this is based on the Covid vulnerability risk assessment carried out today The current Met policy continues for now, that all vulnerable groups should work from home and not visit Met workplaces. After 1 August, all vulnerable groups should continue to do so until further notice. The Mel: is working through a sensible risk-based approach that can support those who cannot fully do their role from home back Into the workplace, which will be communicated when finalised. For further Information please visit the Intranet COVID-19 pages

[225]It was the Claimant’s case that the Black Police Officers Association had recommended that in the case of any ethnic minority groups a ‘BAME’ risk assessment should be undertaken. The Claimant says that the assessment undertaken by the Respondent’s HR provider did not fulfil this requirement. In 2023, for the purposes of these proceedings, Inspector Fyfe asked the OH provider whether separate assessments both as to health and to ethnicity were considered necessary. The response came from Angela Mafukeni the Clinical Operations and Governance Lead of Optima Health. She confirmed that the risk assessments that were given took account of all personal vulnerability factors including ethnicity. We find that that accords with common sense. An assessment based only on health or only on ethnicity is a poor assessment of risk. An approach tailored to an individual and taking into account both their health conditions together with their ethnicity seems to us a far more robust approach.

[226]The Claimant’s claims arising from the instruction that she return to working from the office originally included claims brought under sections 15 and 26 of the Equality Act 2010. She withdrew those claims during the hearing. What remains is a suggestion is that Shabir Alli, Inspector Fyfe and CI Marcel Baker and Commander Jackson (the latter two forming part of ‘Silver Command during the pandemic) victimised the Claimant.

[227]We would accept that the Claimant was very uncomfortable with the idea of returning to work. We take judicial notice of the levels of fear the pandemic generated. We are sympathetic to the Claimant’s desire to stay away from the workplace. We find that the instruction to return to work was given in respect of all individuals who had been shielding who could not undertake their existing role from home and who were not exceptionally clinically vulnerable. As such, without pre-empting our findings about the reason why the Claimant was instructed to return to work the Claimant was by no means the only person required to do so. When he was interviewed during the investigation into the Claimant’s grievance Marcel Baker explained that at the peak there were sone 259 members of staff at MetCC that were shielding. With the exception of 26 people who had been determined to be ‘exceptionally clinically vulnerable’ by their General Practitioner all members of staff had been required to return to the workplace.

[228]When interviewed Marcel Baker said that he had never met or corresponded with the Claimant. He said that decisions about who would or would not be asked to return to work were taken based on the medical information available. Allegation 23 – The Claimant being told that she could not use the writing room as a workspace.

[229]When the Claimant returned to work on 10 September 2020 she learned that another staff member Peter Griffiths had been allocated the whole of a room known as the reading room as a workspace. She says that this is victimisation and harassment. She holds Inspector Fyfe and Marcel Baker responsible.

[230]We find that the Peter Griffiths had been allocated the reading room as a workspace before the Claimant had arrived. He was not particularly vulnerable to Covid but he lived with people who were clinically vulnerable. He was placed in the writing room for that reason. When the Claimant started to work in that room this was the explanation that she was given and she was asked to move.

[231]The Respondent had undertaken a Covid Risk assessment for working at Bow. The steps that had been taken to separate workspaces included an instruction that only every second ‘pod’ was to be used as a workplace. We were shown the plan of the floor that was drawn up. We find that the arrangements in place meant that the staff members were working in excess of 2M apart. The Claimant says in her ET1 that this meant working in ‘close proximity to other staff. We find that it did not. The Claimant complains that she observed staff members breaching social distancing requirements in the kitchen and other communal areas. We accept that there may have been some staff members who did not obey the rules. Nonetheless the management had put those rules in place and we find expected them to be obeyed.

[232]Allegation 24 was withdrawn. It was a suggestion that Inspector Fyfe had been smirking when he told the Claimant that her criminal complaint against Lisa Wingrove was not going to be progressed. It is difficult to see why the Claimant believed that taking stills from a workplace CCTV system would justify a criminal complaint. Allegation 25 – Sarah Hartwell referring to the Claimant’s shielding as ‘being on holiday’

[233]This allegation also refers to the Claimant’s first day back at work on 10 September 2020 having been shielding. The Respondent has not admitted that this phrase was used but they have not called Sarah Hartwell to give evidence.

[234]In her ET1 the Claimant describes this incident as follows: ‘the Claimant had spent most of the morning being subject to hostility from many colleagues, with some making sarcastic comments about the Claimant ‘being on holiday’ when she was shielding’. We note that the reference to ‘some’ has been reduced to a single individual. However, the ET1 was presented to the Tribunal in November 2020 shortly after the events in question. She has been consistent about the use of this phrase.

[235]We have expressed concerns about the Claimant’s propensity to exaggerate and in some cases be very inaccurate that does not mean that we should necessarily dismiss her account of this event. Putting the matter in context whilst some people were required to work throughout the pandemic those who were clinically vulnerable were not. That could early lead to division and resentment.

[236]In his written submissions Mr Martin says that we should not accept that Sarah Hartwell used this phrase. He points out, quite correctly, that the Claimant has send numerous documents and e-mails in which she set out her complaints. He says that fact that the Claimant had said nothing about this until she presented her claim should lead us to reject her evidence. There is some force in that submission. We note in particular that the Claimant was interviewed by Duane Baird who was a Grievance assessor on 17 October 2020. In that interview the Claimant refers to events at work on 10 September 2020 but makes no mention of any comment by Sarah Hartwell.

[237]We note that other than the general context the Claimant does not give any context at all around this remark. In her statement she just says that she was subjected to hostility from many colleagues. There is very little detail.

[238]We have come to the conclusion that balancing the matters we have identified we are not satisfied that it is ‘likely’ as in more likely than not that the Claimant has accurately reported what was said by Sarah Hartwell. We accept that it is a possibility but in law that is insufficient.

[239]The Claimant became unwell. Her husband called an ambulance and she was taken to hospital. There does not appear to have been any significant medical issue and the Claimant was discharged. We find it probable that with her concerns she had become progressively more anxious.

[240]The Claimant has been very critical of the Respondent for failing to keep in touch with her after this event. In fact she was contacted by text in the evening by Shabbir Alli. The Claimant in her grievance interview has tried to suggest that this was simply a personal message. It plainly was not and it is difficult to understand why the Claimant puts such a gloss on this.

[241]Allegation 26 was withdrawn. It was a suggestion that Inspector Fyfe had banged on the door of the ambulance and ‘insisted’ that the Claimant was accompanied by a staff member. Had this allegation not been withdrawn we would have found that Inspector Fyfe was showing proper managerial concern for the Claimant. We are surprised that the Claimant was unable to see that but we accept that she is not.

[242]Allegations 27- 29 were withdrawn and we do not need to set out the underlying facts as they do not assist with the claims that we must decide. Allegation 30 – requiring the Claimant to ‘work the floor’

[243]The Claimant had advanced this as allegations under Sections 15 and 26 of the Equality Act but withdrew those claims. What remains is a claim of victimisation. The alleged perpetrators are said to be Inspector Fyfe, Shabbir Alli, Sham Patel, Michelle Littlejohn, Liza Wingrove, Joanna Wood, and ‘any other Deputy Duty Officers’ CI Marcel Baker and Commander Jackson. The time span is said to range from 10 September to 4 November 2020. That appears to be every day that the Claimant worked until she was once again began shielding at home.

[244]As we understand the Claimant’s case from her witness statement and from Ms Anand’s submissions the Complaint that the Claimant is making is not a complaint about some specific instruction but it is about having to work on the floor as a Supervisor in circumstances where she says there was a risk of her contracting Covid. In her witness statement she said ‘[I] was required to work the floor with lots of staff ignoring the health and safety arrangements. I felt that I was placed at risk, as no risk assessment had been completed on my return to work. I did not feel safe. I was suffering severe fatigue and was taking 4 different types of prescribed medications’. As we have set out above the OH assessment for the Claimant was a part of the process of carrying out a risk assessment. Whilst the Claimant refers to her health and ‘severe fatigue’ she had just returned to work having been assessed as fit to do so. If she had ben unfit to work she could have taken sick leave. We find that the Claimant was very concerned about Covid and very unhappy about being asked to return to the workplace. This appears to be the essence of this complaint which appears to substantially overlap with Allegation 22.

[245]We have already made findings above about the steps taken at the Bow centre to reduce the risk of Covid infection. The workspaces separated. There was the provision of hand sanitiser. Instructions were given on maintaining social distancing. We have accepted that there would be some occasions where some staff would not strictly follow the rules. In an e-mail to Sham Patel sent on 4 November 2020 the Claimant describes the behaviour of some staff members. We would accept her description. She says: ‘On the last set of shifts I noticed that chairs were moved around in the canteen where people were sitting 5-6 on one table even though we are supposed to be practicing social distancing. Also when working on pods staff are visiting other pods and the 2 metre distance is not maintained which is worrying for those that are clinically vulnerable such as myself’.

[246]We were provided with an email from Inspector Fyfe to Joanne Wood where she had asked for additional covid screens to separate staff working on the pods. In his email Inspector Fyfe refers to two inspections where the Bow Centre had been held to be non-compliant. He referred to the staff rest area. He informed Joanne Wood that after the issue had come to light changes to the layout of the rest area had been introduced. We find that the Respondent was actively taking steps to address concerns as and when they were raised.

[247]The evidence from Superintendent Warby, which we accept, was that the arrangements made by MetCC had been approved by the Health and Safety Executive.

[248]In her witness statement Lisa Wingrove analyses that the Claimant was asked to do in this period. We accept her evidence. She says that between 10 September and 4 November 2020 the Claimant was only at work on 8 occasions. She says that: 248.1. On 10 September, and 18 October 2020 the Claimant was asked to carry out administrative duties. As such she could have limited her interactions with any other staff members and had breaks when she chose without needing to be relieved. 248.2. On the remaining 5 days the Claimant was undertaking her role as a supervisor in Dispatch.

[249]We are unsure whether when the Claimant says she was required to ‘work the floor’ she is saying only that she was required to work on the Dispatch floor or whether she is referring to moving around and observing staff members. The Claimant refers to having to ‘work the floor’ on 19 October 2020 at paragraph 239 of her witness statement. We have dealt with the Claimant’s objection to Joanne Wood asking her to walk around the floor above. On that occasion the Claimant was working in First Contact. She said that it was not a necessary part of her role. Lisa Wingrove says that it is not necessary to work the floor (by which we understand her to mean walk around the floor) in dispatch. It appears that both the Claimant and Lisa Wingrove accept that walking around the floor is not a necessary part of working in dispatch. Allegation 31 – subjecting the Claimant to hostile and angry looks and relieving her last for breaks

[250]These allegations are said to be harassment related to disability and victimisation. Five individuals are said to be responsible these are Lisa Wingrove, Joanna Wood, Inspector Fyfe, Ronnie Jones and Hayley Geldart. To substantiate this allegation the Claimant needs to establish that these individuals did subject her to hostile and angry looks or were the persons who failed to timeously relieve her when she was due a break. We have started with the Claimant’s 89 page witness statement as the first source of her evidence. We shall deal with each of the named individuals in turn.

[251]In her witness statement at paragraph 251 the Claimant refers to an e-mail she sent Sham Patel on 4 November 2020 within which she complained of hostility from Liza Wingrove. She said: ‘I saw Liza Wingrove on the ground floor again this morning while she was with her friend Hayley Geldart (on breaks together), she again gave me dirty looks, was whispering and stopped talking when I walked into kitchen area. It does not feel like her hostility Is going to stop which is worrying as she is a deputy duty officer’.

[252]There was clearly a very difficult relationship between the Claimant and Liza Wingrove at this time. This is unsurprising as the Claimant had taken steps to have Liza investigated for criminal conduct. Liza Wingrove brought a formal grievance about what she said was the Claimant’s conduct during the period which this allegation relates to. That grievance includes the following summary of her position: I have been the victim of numerous false and malicious allegations by EO Jugdeep MAHAL @MetCC Bow over the last 2 years but more recently these incidents have escalated over recent months where she has isolated me and singled me out on our team by making malicious allegations, to the point where I now feel it amounts to bullying and harassment within the workplace. I have documented all of these actions on a timeline and can provide it if required. Whilst many of the allegations appear trivial on the face of it it is the fact that this has been sustained and calculated behaviour by EO MAHAL over a long period of time that is now causing me distress. I perceive her actions to be wilful and intended to cause me distress and upset. I have previously attempted mediation on 2 separate occasions which have proven to be unsuccessful and her behaviour has continued, to a point whereby it is causing me extreme stress and anxiety. EO MAHAL has named me in an upcoming ET and I feel this is the impetus for her increased targeting of me, almost goading me to retaliate so this can go against me and strengthen her case.’

[253]It is evident that when she was interviewed as a part of the grievance process Liza Wingrove complained that when she had taken a break with two colleagues who were her friends the Claimant had questioned the propriety of this. She referred to an incident on 4 November 2020 Liza Wingrove’s account was put to the Claimant in an interview that was conducted on 22 June 2021. The Claimant had seen the questions in advance and had taken legal advice. Liza Wingrove had complained that the Claimant had been sitting in the foyer when she and Hayley Geldart went into the kitchen on a break. She says that the Claimant then followed her into the kitchen in an attempt to intimidate her. The Claimant’s response was that she had gone into the kitchen to eat and to take medication. She says she had stood at the door because of social distancing guidelines. She did not mention Liza Wingrove giving her dirty looks.

[254]The Claimant did not dispute in her interview on 22 June 2021 that she had questioned the propriety of Lisa Wingrove taking breaks. She has raised the same issues in other correspondence. She has consistently questioned Lisa Wingrove’s integrity. We find that Lisa Wingrove’s account of 4 November 2020 is more likely to be correct than the Claimant’s account. Given the rank hostility between these two individuals it seems to us that it was unnecessarily provocative for the Claimant to have followed Lisa Wingrove as we find she did. We accept that Lisa Wingrove and Hayley Geldart probably stopped talking. It is clear that Lisa Wingrove felt uncomfortable. We accept Lisa Wingrove’s evidence that she did not give the Claimant any ‘dirty looks’ at that time or any other during this period.

[255]We then turn to what the Claimant says about Joanne Wood. On 20 October 2020 the Claimant sent an e-mail to Sham Patel. She said: ‘I just saw JW when going to toilet again and she looked very angry’. This appears to be the only interaction the Claimant has referred to during this period. That was the extent of Ms Anand’s submissions. The Claimant had attached a further e-mail where she had raised an issue about hostility from Joanne Wood in March 2020. That has not been the subject of a specific complaint by the Claimant and, other than to accept Ms Anand’s submission that this appears not to have been followed up, we do not need to make any further findings about it.

[256]In assessing the evidence we again need to take account on the tendency of the Claimant to put a gloss on ordinary events. We accept that the Claimant had complained that Joanne Wood ‘looked very angry’. It is quite clear from the evidence and from our other findings that Joanne Wood disliked the Claimant. What we need to ask ourselves is whether there was any act or omission by Joanne Wood on this occasion. It is not suggested that she said or did anything. All that is said is that she ‘looked angry’. We find that there is insufficient context and evidence for us to conclude that there was any conduct by Joanne Wood capable of forming a complaint.

[257]The Claimant does make various complaints about Inspector Fyfe’s conduct between 10 September 2020 and 4 November 2020 but she does not say in her witness statement that he ever subjected her to hostile looks nor does he suggest that he was responsible for failing to relieve her when she needed breaks. We do not understand why the Claimant has named Inspector Fyfe in relation to these allegations.

[258]The Claimant has named Ronnie Jones as a person responsible for these matters. Nowhere in her witness statement or as far as we can see elsewhere does she set out any interaction she had with Ronnie Jones during this period. Ronnie Jone’s witness statement for the first tribunal proceedings says that he left the Bow centre in the summer of 2019.

[259]The Claimant has referred to Hayley Geldart in relation to the events of 4 November 2020. She has said that Hayley Geldart was present with Lisa Wingrove in the Kitchen. She does not suggest that Hayley Geldart said or did anything. We do not find that merely being present is a sufficient basis for this allegation.

[260]The Claimant has given no detail at all about who she says failed to relieve her so she could take breaks. She has talked about Lisa Wingrove and others taking breaks together. It appears that they did. However, in order to establish the conduct complained of the Claimant would have had to have given us some specific details. She has not identified who was responsible (other than in broad terms) or the occasion or occasions when this was said to have happened. We find that the Claimant has failed to establish the factual basis for this complaint. The Claimant’s second shielding

[261]The Claimant attended a further Occupational health appointment on 3 November 2020. The purposes of this appointment were to address the period of sickness absence that the Claimant had taken between 10 September and 4 October 2020 and to have a further Covid assessment.

[262]On 4 November 2020 the Government published fresh guidance and recommended that people who were Clinically Extremely Vulnerable should not attend their workplace. The Claimant sent an e-mail to Sham Patel and informed him that her trade Union had advised her that she should commence shielding on 6 November 2020. The Claimant described herself as ‘clinically vulnerable’ and said the OH professional had agreed with her. She indicated a willingness to work from home. She referred to the fact that some staff working on the 101 service had been able to work from home.

[263]The Claimant’s e-mail to Sham Patel suggests that she has been told by OH that she falls into the category of persons that the Government had recommended stay at home. We make no findings about what the Claimant was told on the day but the Occupational Health Report that was provided on 8 December 2020 (the delay being because the advisor had been unwell. The report refers to the Claimant having been taken by ambulance to hospital on 10 September 2020 with suspected cardiac symptoms and records that none were found. It then sets out that the subsequent absence was contributed to by the fact that the Claimant had discovered a breast lump which turned out not to be cancer but had contributed to anxiety.

[264]The OH report advised the MPS that in the view of the OH professional the Claimant was fit for (some) work. What was noted was that the Claimant was experiencing stress due to her grievance and ‘management issues’. The following recommendations were made: 264.1. That a stress risk assessment was caried out; and 264.2. That the Claimant work only day shifts due to side effects of medication for anxiety; and 264.3. ‘if operationally feasible’ a recommendation for agile working from home and office to manage the anxiety. 264.4. A phased return over a 4 week period.

[265]There is a separate Covid risk assessment where the Claimant was assessed as Lower Risk Category A. That assessment did not mean that according to the Government guidance the Claimant ought to be shielding at home. We make no finding about whether the Claimant knew this at the time she sent her email to Sham Patel but she ought to have recognised this when she saw the OH report.

[266]Inspector Fyfe had followed up the Occupational Health report on 7 December 2020. He had been told that it had been sent to the Claimant’s work e-mail and he recognised that the Claimant would not have access to it. The Claimant learned that he had made enquiries about the report. She sent him an email informing him that she did not consent to the report being released to him. Inspector Fyfe responded explaining the steps he had taken and why. He informed the Claimant that Sham Patel was off sick and that she could discuss the OH Report with him on her return.

[267]The consequences of Sham Patel’s absence from work were that the Claimant remained at home despite the fact that the Occupational Health advice was that she could attend work subject to the recommendations we have set out above.

[268]During this same period, on 30 November 2020 the Claimant presented her fourth tribunal claim. This is protected act 16. Allegation 32 - Sham Patel advising the Claimant that there were no available laptops and agile working was not a possibility Reasonable adjustments claim 11

[269]On 30 December 2020 Sham Patel sent an email to the Claimant. He asked the Claimant whether she has any letter from a Health Professional informing her that she needed to shield. He explained that in the absence of such a letter she would be required to come back to work at Bow. He said: ‘We have others currently at work who are deemed at higher risk than yourself who are not shielding as there is no requirement. The OCU has been deemed COVID Secure and we will try and make reason adjustments for you when at work. We will also incorporate your additional OH referral and have you not working nights whilst you are on medication. Currently due to no Laptops available to the OCU working at home (agile working) is not an option.’

[270]Whilst the e-mail was sent by Sham Patel we find that the decisions that it conveyed were not taken by him. They were taken at the level of Gold and Silver command of the Covid taskforce.

[271]The Claimant responded to Sham Patel on the same day. It is sufficient to say that she was resistant to returning to the Bow Centre and wanted to adopt ‘agile working’. It would appear from the trust of her full e-mail that she did not interpret that phrase as requiring any office based work. Sham Patel forwarded the Claimant’s e-mail to Inspector Fyfe who in torn sent it to Superintendent Warby. They held a meeting on 31 December 2020 to discuss the issue. After the meeting Inspector Warby sent an e-mail to CI Clarke MetCC Silver Command and Superintendent Newman of Gold Command. He said: “here is an ongoing and rather complex HR issue involving Jugdeep Mahal. I have just held a meeting with her line managers Doug Fyfe & Sham Patel. Email below gives an insight to the situation. Essentially Jugdeep is unofficially shielding at home whilst we consider [options] and liaise with the PCS. The situation has not been helped by the OHA going sick before the OH assessment could be sent & a subsequent period of sick by Sham as a result of a positive test. An easy solution to the current situation would be to allow Jugdeep to work from home. However, my understanding is that we do not have any laptops spare and we have a number of extremely clinically vulnerable (ECV) at home already who are on the waiting list for one. As it stands Jugdeep whilst vulnerable is not ECV. Please confirm the OCU position on availability of laptops, waiting lists for them and views if Jugdeep was given a laptop.

[272]CI Clarke responded to Superintendent Warby on 4 January 2021. Superintendent Newman responded on 6 January 2021. It is sufficient that we quote form Superintendent Newman’s e-mail. He said: 272.1. ‘Over 95% of all Met CC jobs require staff / officers to attend work and be at Bow, Hendon or Lambeth for the role. The OCU technology for telephony 999/101 and Despatch Radio means that home working is not an option. As a Supervisor the role involves being in Met CC to review CADs / CHS for risk, deployments and also Supervise staff and look after staff welfare etc.’ 272.2. ‘staff who are Extremely Clinically Vulnerable and OH assessed / agreed as such should not presently be in the workplace. (This is a small number of staff who have significant health concerns, fully documented via OH). There are approx. 30 ECV staff / officers who the OCU has worked hard to try to give meaningful work to. There is a shortage of laptops, which means a good number are doing helpful but not essential work’ 272.3. There is a global shortage of laptops. At present despite numerous Business Cases over the last 6 months, no more laptops are forthcoming, and if they were the laptops should be prior. This is escalated to NPCC level without resolution at this time.’ 272.4. ‘It is my understanding that of the approx. 250 Vulnerable staff that returned to the workplace following Government Advice on 1st September there are only two staff that are vulnerable and not attending the workplace - for extended periods - to perform their role, when the information indicates that they should be at work, performing it.’ 272.5. ‘Met CC is an OCU already understrength (excluding Covid). The OCU and public need as many key worker staff, performing critical roles in work, doing their core duties. FC and Despatch are short and backfilled by overtime every day. Each day a Supervisor, such as Jugdeep, is not in the workplace we have to backfill with OT - effectively paying 2 people to do one person's role’ 272.6. I am not in the Line Management chain here but there are limited 'meaningful other' roles to do within the OCU, as this is explored and we are having difficulty managing this for our most / extremely vulnerable staff. The wider OCU 'precedent set' consider should also be considered here as 'finding work at home for someone, who (based on the information given to me) is assessed as able to be in the workplace' for one, may open a pandoras box of requests for others to home work that is unsustainable, and arguably a good number of these cases may be more deserving than Jugdeep's’.

[273]Where Superintendent Newman’s responses include statements of fact we accept them. Essentially there was very useful meaningful work that could be undertaken from home. There was a global shortage of laptops and MetCC did not have enough even to cover the Exceptionally Clinically Vulnerable members of staff who were shielding on that basis. Allegation 34 – Advising the Claimant that she would be treated like any other member of staff. Reasonable adjustment claims 12 and 13

[274]On 8 January 2021 the Claimant sent in a fit note signed by her GP on 7 January. Her GP had said that she was fit for work. Indicated that she needed workplace adaptions and said; ‘Patient is able to manage her symptoms better working at home which she has been doing’. The Claimant had not been working from home. When the Claimant forwarded this e-mail to Sham Patel she misrepresented what her GP had said. She said that he had recorded that she was not fit to work other than from home. He did not. He said she was better able to manage her symptoms working from home.

[275]Inspector Warby was informed of the Claimant’s correspondence. He took the decision that as the Claimant was not exceptionally clinically vulnerable she should not be prioritised for home working or for a laptop. He decided that she should be given the option of returning to work on the basis recommended by the OH advisor but without home working; or returning to her GP to clarify whether it was the GPs position, as the Claimant had said it was, that she was not well enough to do any work at the office in which case she would be put on sick leave; or the Claimant could provide further medical evidence to establish that she should be treated as Clinically Exceptionally Vulnerable. He set out those decisions in an e-mail to Sham Patel. It is notable that in a private e-mail which the Claimant would not have ordinarily seen he said: ‘I must emphasise I recognise the stress that Jugdeep is under and understand her concerns. I would ask that we doublecheck we are doing all we can to support her. However, we cannot go outside of the policies set and treat her differently to many of our vulnerable staff’. We find that this expresses a degree of empathy for the Claimant. It considerably undermines any suggestion that there was any personal animosity in the decision making process. That passage can be contrasted with one of the final passages in the Claimant’s witness statement where she says: ‘It is my firm belief that my management as a gang wanted to push me into a very dark corner and consider suicide through their actions just like they did to others and succeeded’. We have regard to the evidence as a whole. We have made some findings about matters that could and should have been done better. We have made findings that there was retaliation against the Claimant by Joanne Wood and Inspector Inglis (although noting he acted on instructions which he later questioned). Even having regard to the success of the Claimant in these matters we consider this statement by the Claimant to be hyperbolic and unjustified.

[276]Superintendent Warby met with Sham Patel on 18 January 2021. Sham Patel then sent the Claimant an e-mail on 19 January 2021. It is that e-mail that forms the subject of this allegation. Sham Patel said: ‘Having considered the latest update with regards to yourself, the OCUs position remains that you shall be treated the same as any other member of staff and that we follow the guidelines set by the MPS Command Team & our HR policies. Your Fit Note does not state that you are clinically extremely vulnerable (CEV) and therefore does not automatically qualify you to stay at home’.

[277]Sham Patel went on to explain the shortages of laptops and that those staff who were Extremely Clinically Vulnerable were being prioritised. He then set out the options that Superintendent Warby had identified.

[278]The Claimant did not return to work nor did she obtain evidence that she fell into the category of Clinically Exceptionally Vulnerable and a debate ensured as to whether in those circumstances the Claimant should be regarded as off sick. We do not need to make any findings about that aspect of the process.

[279]The Claimant had been allocated a welfare officer by this stage. He was a senior and experienced individual, Simon Tee the LDSS Central Support Operational Support Manager. He attended a case conference with the Claimant, Sarah Waller an HR Case manager and Sham Patel on 25 February 2021. The formal decision that was taken following that meeting was that the Claimant needed to be recorded as being off sick.

[280]What that meeting did was to open a dialog between Simon Tee and Superintendent Warby. In short Simon Tee made a proposal that he obtain a laptop and offered the Claimant work she could usefully do. Superintendent Warby needed to get the proposal signed off by Deputy Assistant Commissioner Jane Connors. When he asked for her permission it is clear from the terms of his e-mail that he was concerned about the apparent unfairness of allowing the Claimant to work from home when over 250 other clinically vulnerable people had not been afforded the same accommodation. Nevertheless as a matter of pragmatism he made the proposal and it was endorsed by the Jane Connors. Allegation 37 – Telling the Claimant that she would not be recognised in the SO15 Commendation process

[281]The Claimant was on duty on the night of the Finsbury Park Mosque attack. She says and we accept that she played an important role in ensuring that sufficient resources to deal with that incident were dispatched.

[282]On 17 November 2017 the Claimant was sent a letter that letter said that ‘Your actions have been deemed worthy of recognition, and you will be invited to either an Assistant Commissioner's Commendation ceremony, Borough Commander's Commendation ceremony or a formal ceremony of thanks. It is anticipated that these ceremonies will take place in 2018’. Whilst the Claimant could quite reasonably expect that she would be invited to a ceremony the letter does appear to refer to several different groups. The opening passage refers to invitations being sent on that day to one group of people. The later passage that we have quoted appears to refer to a separate process.

[283]On 11 August 2019 the Claimant decided to follow this up. She sent an e-mail to Commander David Jackson. He did not respond but she was sent a response from Ann Brannan who said that she knew that commendations were taking longer than expected she suggested that the Claimant followed this up with the Met Grip Chief in the first instance. She followed this up and discovered that the responsibility lay with Assistant Commissioner Ball. She made contact with her office and was told on 19 August 2019 that there had been a delay in ceremonies being arranged. When she further followed that up with Acting Detective Inspector Kuar who had responded on behalf of AC Ball she asked what the difference was between a recognition and a commendation. ADI Kuar told her that a recognition was simply a ‘thank you’. He said that it was proposed that that would take the form of a ‘challenge coin’ but that the proposal had not been signed off by the commissioners office. He also said that nobody from MetCC was on the list for a commendation. Looking back at the letter of 17 November 2017 we find that it does not specify what form any recognition might take.

[284]The Claimant followed this up once again on 28 September 2021 when she contacted the office of AC Ball. She was contacted by Inspector Drew who had been asked to look into the issue. On 16 December 2021 Inspector Drew told the Claimant that he and another officer had assembled a rewards and recognition team ‘to progress yours and other awards from that time’. The suggestion was made that it would be the new year before matters were completer. The Claimant followed this up in February 2022. Mark Drew said that he would make some enquiries and revert to her.

[285]The Claimant attended a teams meeting on 17 February 2022 with CI Deane. He had been appointed as Lead for Reward and Recognition. He told the Claimant that he would look in to what had happened. He then e-mailed the Claimant on 9 March 2022 he said that he had no record of anybody from MetCC who had been nominated for an award. He indicated that the process that would have been followed was undertaken by the SO15 Senior Investigating Officers and that they would not have known of the significant contribution by MetCC officers. The Claimant responded sending a copy of the letter she had received in 2017 and a Quality Service Report which had been completed at the time. We were not shown any response but the Claimant has not received any reward or recognition. The law to be applied

[286]As we have said above neither advocate raised any issue in respect of the law we need to apply. Both agreed that the self-direction included in the first tribunal decision contained an accurate summary of the law. With that agreement reached the second tribunal familiarised itself with that self-direction. We shall not just cut and paste that direction into this decision. It is already too long. We ask that any third party read that self-direction as if it were contained herein.

[287]We are conscious that it is not sufficient for us to demonstrate a knowledge of the legal principles. We need to apply them and to demonstrate that we have had the applicable law in mind when we reached our conclusions. Agreeing the relevant legal principals was as much for our benefit as it was for the parties and we have endeavoured to apply those principles in our discussions and conclusions below.

[288]Missing from the decision of the first tribunal is any reference to claims brought through Section 26 and 40 of the Equality Act 2010 – harassment. The law we applied in respect of those claims was as follows:

[289]A claim for harassment under the Equality Act 2010 is made under section 26 and 39. The material parts of Section 26 reads as follows: 26 Harassment(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.

(2) ….

(3) ….

(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— age; disability; gender reassignment; race; religion or belief; sex; sexual orientation.

[290]The question of whether unwanted treatment ‘relates to’ a protected characteristic is to be tested applying the statutory language without any gloss Timothy James Consulting Ltd v Wilton

UKEAT/0082/14/DXA

. In Bakkali v Greater Manchester Buses (South) Ltd

[2018] IRLR 906

, EAT Slade J held that the revised definition of harassment in the Equality Act 2010 enlarged the definition. She said: ‘In my judgment the change in the wording of the statutory prohibition of harassment from 'unwanted conduct on grounds of race …' in the Race Relations Act 1976 s 3A to 'unwanted conduct related to a relevant protected characteristic' affects the test to be applied. Paragraph 7.9 of the Code of Practice on the Equality Act 2010 encapsulates the change. Conduct can be 'related to' a relevant characteristic even if it is not 'because of' that characteristic. It is difficult to think of circumstances in which unwanted conduct on grounds of or because of a relevant protected characteristic would not be related to that protected characteristic of a claimant. However, 'related to' such a characteristic includes a wider category of conduct. A decision on whether conduct is related to such a characteristic requires a broader enquiry. In my judgment the change in the statutory ingredients of harassment requires a more intense focus on the context of the offending words or behaviour. As Mr Ciumei QC submitted 'the mental processes' of the alleged harasser will be relevant to the question of whether the conduct complained of was related to a protected characteristic of the Claimant.’

[291]The need for a tribunal to take a rigorous approach to the question of whether conduct related to a protected characteristic was recently emphasised in Tees, Esk and Wear Valleys NHS Foundation Trust v Aslam

[2020] IRLR 495

, EAT where the EAT said: ‘The broad nature of the 'related to' concept means that a finding about what is called the motivation of the individual concerned is not the necessary or only possible route to the conclusion that an individual's conduct was related to the characteristic in question. Nevertheless, there must be still, in any given case, be some feature or features of the factual matrix identified by the tribunal which properly leads it to the conclusion that the conduct in question is related to the particular characteristic in question, and in the manner alleged by the claim. In every case where it finds that this component of the definition is satisfied, the tribunal therefore needs to articulate, distinctly and with sufficient clarity, what feature or features of the evidence or facts found, have led it to the conclusion that the conduct is related to the characteristic, as alleged. Section 26 does not bite on conduct which, though it may be unwanted and have the proscribed purpose or effect, is not properly found for some identifiable reason also to have been related to the characteristic relied upon, as alleged, no matter how offensive or otherwise inappropriate the tribunal may consider it to be.’

[292]The Statutory Code of Practice at paragraph 7.18 says the following about when conduct should be taken as having the effect of creating the circumstances proscribed by Sub-section 26(1)(b): 7.18 In deciding whether conduct had that effect, each of the following must be taken into account: a) The perception of the worker; that is, did they regard it as violating their dignity or creating an intimidating (etc) environment for them. This part of the test is a subjective question and depends on how the worker regards the treatment. b) The other circumstances of the case; circumstances that may be relevant and therefore need to be taken into account can include the personal circumstances of the worker experiencing the conduct; for example, the worker’s health, including mental health; mental capacity; cultural norms; or previous experience of harassment; and also the environment in which the conduct takes place. c) Whether it is reasonable for the conduct to have that effect; this is an objective test. A tribunal is unlikely to find unwanted conduct has the effect, for example, of offending a worker if the tribunal considers the worker to be hypersensitive and that another person subjected to the same conduct would not have been offended.

[293]In Pemberton v Inwood

[2018] IRLR 542

Underhill LJ explained the effect of Sub-section 26(4) as follows [para 88]: ‘In order to decide whether any conduct falling within sub-paragraph (1)(a) has either of the proscribed effects under sub-paragraph (1)(b), a tribunal must consider both (by reason of sub-section (4)(a)) whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) and (by reason of sub-section (4)(c)) whether it was reasonable for the conduct to be regarded as3 having that effect (the objective question). It must also, of course, take into account all the other circumstances – subsection (4)(b). The relevance of the subjective question is that if the claimant does not perceive their dignity to have been violated, or an adverse environment created, then the conduct should not be found to have had that effect. The relevance of the objective question is that if it was not reasonable for the conduct to be regarded as violating the claimant's dignity or creating an adverse environment for him or her, then it should not be found to have done so.’

[294]In Richmond Pharmacology v Dhaliwal

[2009] IRLR 336

, which dealt with the legislation in place prior to the Equality Act 2010 there is a reminder of the need to take a realistic view of conduct said to be harassment. At paragraph 22 Underhill P (as he was) said: ‘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. Discussions and conclusions

[295]Within this section we deal with each factual allegation in turn and the claims said to arise from those facts. At times it has been necessary for us to make further findings of fact particularly in respect of issues such as the reasons for any treatment and whether making an adjustment would have been reasonable.

[296]We shall start with some observations about our approach to the burden of proof. In its self-direction as to the law the first tribunal did not have the benefit of Field v Steve Pye and Co (KL) Ltd and ors

2022 EAT 68

which had not been decided at the date of the hearing. That case suggests that a tribunal should exercise some caution if it is minded to move directly to the issue of the respondent’s explanation for any treatment. Quite clearly what was said by HHJ Tayler could not have been intended to suggest that it is never open to a tribunal to take the step of asking whether it is in a position to make clear positive findings about the reasons for any treatment as such an approach has the endorsement of the Supreme Court in Hewage v Grampian Health Board

[2012] ICR 1054

. What we take from Field v Steve Pye is that the dangers of taking the step permitted by Hewage include the possibility of a failure to analyse evidence that could support an inference of discrimination. We have born that in mind.

[297]When we have dealt with the question of whether the burden of proof passed to the Respondent we needed to have regard not only to the totality of the evidence in the present cases but also to the findings of fact made by the first tribunal. This included the findings that supported the claims that succeeded. We do not consider it follows that because the Claimant succeeded in a single claim of victimisation and three claims concerning a failure to make reasonable adjustments it follows that the burden of proof would necessarily shift in respect of other claims. That said the fact that the Claimant has established that the Respondent has failed to prevent unlawful conduct in the past does provide evidence that we need to take into account when asking whether the burden of proof has passed.

[298]The Claimant says in her witness statement ‘I agree with Baroness Casey, the Mayor of London (our employer) and Baroness Doreen Lawrence that the MPS is institutionally racist and corrupt’. She referred to and relied upon public comments and findings by those three individuals. We needed to consider the approach we should take in respect of that evidence. We consider that there is a difference between mere public comment and a report provided after research. The latter carries greater weight. A report about the culture within an institution or a conclusion that that institution has ‘institutional racism/sexism’ is not direct evidence that any individual complaint of racism or sexism is made out. Having said that we accept that it is right that we have regard to the report of Baroness Casey and the comments of Baroness Lawrence and The London Mayor. We consider that the proper approach is to weigh those matters in the balance in deciding whether the burden of proof passes to the Respondent. We consider that a report produced after research should carry more weight than public comment no matter how authoritative the commentator. Protected Acts

[299]There was no dispute between the parties that the Claimant has done a series of acts which were protected acts for the purposes of Section 27 of the Equality Act 2010. Whether something qualifies as a protected act is a mixed question of fact and law. We are satisfied that the concession made by the Respondent that each of the protected acts relied upon by the Claimant qualifies for protection is well made.

[300]The way the Claimant puts her victimisation claims is to say that in every case the factual allegations of poor treatment are ‘because of’ all of the protected acts that precede the act complained of. In other words the Claimant puts her case on a very large number of alternative basis.

[301]We have extracted the list of protected acts from the list of issues. 301.1. Email in Marcel Reyes-Cortez grievance investigation dated February 2017 (race); 301.2. Grievance dated 11 August 2018 (disability, race and sex discrimination); 301.3. Grievance dated 17 December 2018 (race and sex discrimination); 301.4. ET Case No: 320032/2019 (disability); 301.5. ET Case No: 3200466/2019 (disability); 301.6. Appeal against Deputy Duty Officer application rejection dated 19 May 2019 (race and sex discrimination); 301.7. Grievance of 18 August 2019 (race, sex and disability discrimination) 301.8. Complaint to David Jackson and other senior management dated 3 November 2019 (disability, race and sex discrimination) 301.9. Grievance dated 17 November 2019 (disability, race and sex) 301.10. ET Case No: 3203100/2019 301.11. Email to Chief Inspector Andy Dunn dated 20 December 2019 301.12. Email to Sham Patel dated 7 March 8 January 2020 (disability) 301.13. Complaint to Chief Inspector Andy Dunn, dated 11 March 2020 (disability) 301.14. Complaint to Shabbir Alli, dated 14 August 2020 (disability discrimination) 301.15. Formal grievance dated 31 August 2020 (disability, race and sex discrimination) 301.16. ET Case No: 3220171/2020 Allegation 1 – The Appointment of Joanna Wood as the Claimant’s Line Manager.

[302]This claim is brought under Sections 27 and 30 of the Equality Act 2010. We would accept that the appointment of Joanna Wood as the Claimant’s line manager amounts to a detriment for the purposes of Section 39(4)(d) of the Equality Act. Whilst it is not in every case that an employee could reasonably complain that they will be managed by a manager with whom they have had a disagreement there is more to this in the present case. It was the complaint of Joanna Wood that had led to an investigation being commenced against the Claimant that has been held to be unlawful. Joanna Wood had indicated that she would being tribunal proceedings against the Claimant. In our findings of fact we have accepted that the potential for conflict was significant. The threshold for what might amount to a detriment is not a high hurdle and takes into account the subjective objection of the Claimant. We find that the Claimant’s objections to being managed by Joanna Wood were reasonable.

[303]We have found above that CI Brown was aware at least of the broad nature of the protected acts identified as protected acts 1-5 by the Claimant. As set out above he did not suggest otherwise in his oral evidence at least.

[304]We have set out above our findings about the ‘appointment’. We have found that the resourcing planning team were responsible for posting the vacancy at Bow and for putting Joanna Wood forward for that role when she applied. The role of CI Brown was to formally accept that recommendation. In that sense he appointed her to the role. Taking into account the entirety of the evidence we are satisfied that CI Brown did not encourage or approach Joanna Wood about the role. His role was limited to accepting her transfer.

[305]The issue that is contentious is the reason for that treatment. We find that the Claimant has established facts from which in the absence of an explanation from the Respondent we could infer that the decision of CI Brown was an act of victimisation. The most important findings of primary fact that support this conclusion are: 305.1. That there had been a long period of conflict between the Claimant and her managers that had been the background to protected Acts 1-5. 305.2. We have drawn an inference that Joanna Wood was angry at the failure to progress a disciplinary case against the Claimant. As such it is at least possible that she would be motivated to take up a post as the Claimant’s manager in order to ‘get even’. 305.3. The surprising nature of the decision where it ought to have been very clear to CI Brown that there was a strong possibility of conflict; and 305.4. The fact that Inspector Andrew Inglis an officer in the same chain of command had victimised the Claimant (See the outcome of the First Tribunal); and 305.5. When CI Brown was interviewed as part of the Claimant’s grievance process he made it clear that he resented her allegations both against him and against the MPS (see below) 305.6. We also place some weight on the Baroness Casey Report and the other materials relied upon by the Claimant that suggest that the Metropolitan Police Service as a whole failed to deal with racism and sexism.

[306]The Respondent’s explanation for this treatment was given by CI Brown himself. We have accepted his role in the decision making was limited to approving the transfer. He says that he did not believe that he could veto the transfer unless there was some good reason (such as a misconduct investigation) to do so. By necessary implication he says that the fact that the Claimant had done protected acts formed no part of his reasons.

[307]We need to examine all the evidence at this stage. That includes the matters we have taken into account when deciding if the burden of proof has passed as well as the explanation given by CI Brown.

[308]In assessing the evidence we considered that some considerable weight should be placed on the approach CI Brown took when he first met the Claimant on 7 May 2019. The first and most obvious point is that CI Brown made arrangements immediately to separate the Claimant from Joanna Wood. It is right that that involved moving the Claimant rather than Joanna Wood but we find that the Claimant welcomed this as a suggestion. We accept CI Brown’s evidence that to move Joanna Wood would have involved moving another Duty Officer when the Claimant could be accommodated without difficulty. Moving the Claimant so readily is not consistent with the suggestion that part of the motivation of approving Joanna Wood’s transfer was that the Claimant had done protected acts. CI Brown could have told the Claimant that she could not pick and choose her managers but he did not.

[309]We have made further findings about CI Brown’s approach to the meeting on 7 May 2019. We have found that he made sensible and constructive suggestions about how the Claimant should act if she had further complaints. He also recommended mediation between the Claimant and Joanna Wood although he did not insist upon it. He also took steps to deal with the Claimant’s concerns that she had not been given shadowing opportunities. He made recommendations that the Claimant should be assisted in her career progression. He took steps to draw those instructions to the attention of Inspector Fyfe who would take over as the Claimant’s line manager. Stepping back the contents and tone of CI Brown’s letter of 25 May 2019 are constructive and in many respects accommodate the Claimant. Again this is inconsistent with the suggestion that he had been motivated by protected acts.

[310]A matter that we considered important when evaluating CI Brown’s explanation for his approval of Joanna Wood’s appointment came sometime later. Above we have recorded that CI Brown’s response to the Claimant complaining about his involvement in her application for a Duty Officer Role was to suggest that she had shown a lack of respect both to him and the organisation. Whilst we would not consider it surprising that CI Brown took offence at the Claimant suggesting that he had discriminated against her we not that he also takes offence on behalf of the institution. That would support a finding that he was prone to assuming that the institution was in the right. It would lend support to the suggestion that he would push back against those who criticised the institution. The existence of a culture of this nature was the subject of comment in the Casey report.

[311]We need to have regard to the entirety of the evidence. We are satisfied that CI Brown’s explanation makes sense. Once a person had applied for and was allocated a role it is logical that there would have to be some good reason not to approve the transfer.

[312]Whilst we have noted that CI Brown resented the attacks made by the Claimant against both him and the institution it does not necessarily follow that he would act on that resentment and retaliate against the Claimant.

[313]Our findings in respect of the approach of CI Brown at the meeting of 7 May 2019 are that he was very much the peacemaker and sought constructive solutions to a difficult situation. Ultimately when we weigh those matters against the totality of the evidence we are satisfied that the reason that CI Brown accepted the transfer of Joanna Wood had nothing whatsoever to do with the protected acts 1-5 of which he was aware but was simply that he did not consider that he had any reasonable basis for saying no. We find he gave no thought at all at the time to the impact on the Claimant. Allegation 2 – Inspector Fyfe’s comments during a telephone call

[314]This allegation was directed towards conduct of Inspector Fyfe and was said to amount to harassment related to race contrary to sections 26 and 40 of the Equality Act 2010 and/or victimisation contrary to sections 27 and 39 of the Equality Act 2010.

[315]In our findings of fact we have not accepted that Inspector Fyfe discussed the Claimant using an ‘unpleasant tone’. We were not satisfied that he used the phrase ‘you should see his face drop when you mention her name’ referring to CI Brown. We were not satisfied that Inspector Fyfe referred to the Claimant ‘stomping around’. Having decided that the Claimant has not established the facts that this allegation depended on we need go no further. We must dismiss both claims as the Claimant has failed to establish the necessary underlying facts. Allegation 3 – Failing to arrange Shadowing

[316]These claims are put as acts of victimisation contrary to Sections 27 and 39 of the Equality Act 2010. As we have outlined in our findings of fact the claims make allegations against 7 people. In our findings of fact we have reached conclusions about the involvement of each of the people named. That leads us to the following conclusions.

[317]The Claimant raised the issues of Ronnie Jones failing to provide shadowing opportunities before the first tribunal. The Tribunal set out its findings about that at paragraphs 129 -131. The conclusions reached by the tribunal in respect of this allegation are at paragraphs 319 to 321. The claim did not succeed. The Claimant has not identified any interaction she had with Ronnie Jones that arose after the 13 February 2019 the date of her last complaint before the first tribunal. There is no basis for us to conclude that there was any further failure by Ronnie Jones to organise shadowing. Ronnie Jones did in fact offer the Claimant shadowing opportunities. We find that there was no act or omission by Ronnie Jones of which the Claimant could reasonably complain about.

[318]Joanna Wood was only briefly responsible for line managing the Claimant. She proposed discussing career progression at a 1-2-1 that did not take place because it was agreed that she would no longer line manager the Claimant. Thereafter we have found it was not her direct responsibility to arrange shadowing. The Claimant never made any request for shadowing opportunities after the change of line management. In those circumstances the Claimant could have had no reasonable expectation that Joanne Wood would arrange shadowing. We do not think that there was any omission by Joanne Wood in this respect that the Claimant could reasonably complain of.

[319]We have accepted that both Lisa Wingrove and Stuart Walker could if they had wanted to arranged shadowing. However the Claimant has not shown that she ever raised the issue with either of these two Deputy Duty Judges. In those circumstances we find that she could have had no reasonable expectation that they would organise shadowing of their own volition.

[320]CI Brown has some managerial responsibility for the Claimant’s career development. However he was her second line manager and was removed from the day to day allocation of duties. We find that the Claimant could not have reasonably expected him to allocate her specific shifts that involved shadowing. What he did do when he met with the Claimant on 7 May 2019 was to encourage her career progression and to inform Inspector Fyfe that he needed to discuss the Claimant’s training needs with her. We find that the Claimant could not have reasonably expected him to do more. We note that when he gave the Claimant feedback in respect of her applications for promotion he continued to encourage her career progression.

[321]The self-direction on the law that we have reminded ourselves of shows that in order to provide a foundation for a claim of victimisation there must be some treatment that a worker might reasonably regard as being to their disadvantage. The test that is applied must view that question from the Claimant’s perspective. Whilst we would readily accept, as did the First Tribunal and as we do ourselves below, the Claimant could consider it to her disadvantage that she was not given shadowing opportunities. But we think that is true only of those persons which she could reasonably expect to assist her with this. We have reached the conclusion that the Claimant could not have reasonably expected the individuals she has named above to do any more than they did. As such we find that the Claimant has not established that these individuals subjected her to this detriment. Her claims naming them must fail for that reason.

[322]The position in respect of Inspector Fyfe is different. He did have line management responsibility for the Claimant and he was specifically asked to assist the Claimant wither career development by CI Brown. There were some aspects of this task that he failed to do. It was in our view a significant failure not to complete the Claimant’s formal PDR. The importance of this is that there would have been a clear record of who was expected to do what. It is also the case that Inspector Fyfe did not arrange any duty officer shadowing up to the point when the Claimant applied for the Duty Officer role and he told her that would not be supported.

[323]Against the failures of Inspector Fyfe to organise Duty Officer shadowing is the fact that he went to some efforts to assist the Claimant to be allocated shifts in First Dispatch. It is easy to understand why that was prioritised. It was the absence of First Contact experience that had been the major factor in the Claimant’s application for the role of Deputy Duty Officer being progressed.

[324]It follows that we are satisfied that the Claimant has established firstly that she did protected acts (protected acts 1 to 7 predate this failure) and that she suffered a disadvantage that she could reasonably regard as a detriment.

[325]We are further satisfied that Inspector Fyfe has knowledge of the fact that the Claimant had done protected acts. The letter from CI Brown when he first took over line management of the Claimant and the reasons why he did would have given him sufficient information such that if he did not have full knowledge of the detail of the Claimant’s various complaints he knew that she had complained of discrimination. We find that he was aware that there were tribunal complaints.

[326]It is necessary for us to turn to the reason for the treatment. We will in this instance assess whether the Claimant has proven facts from which we could infer that the reason for the treatment was because of one or more of the protected acts. We find that the Claimant has proven sufficient primary facts that we could draw that inference. The key facts are;

[327]The most important findings of primary fact that support this conclusion are: 327.1. That there had been a long period of conflict between the Claimant and her managers that had been the background to protected Acts 1-5. Inspector Fyfe would have recognised that he was taking over line management of the Claimant against the background of that history of conflict; and 327.2. The fact that Inspector Fyfe failed to do as he had been instructed to do by CI Brown and formally record the training expectations in a PDR. 327.3. The fact that Inspector Andrew Inglis an officer in the same chain of command had victimised the Claimant (See the outcome of the First Tribunal); and 327.4. We also place some weight on the Baroness Casey Report and the other materials relied upon by the Claimant that suggest that the Metropolitan Police Service as a whole failed to deal with racism and sexism.

[328]We have rejected the factual basis for Allegation 2 and we do not accept that Inspector Fyfe was being derogatory about the Claimant. We are also entitled at this stage to have regard to the fact that Inspector Fyfe did assist the Claimant to the extent that she even thanked him for his efforts in organising shifts in First Contact. However, we consider that the evidence as a whole is perhaps just sufficient that we could draw an inference of victimisation at this stage.

[329]We then look at what Inspector Fyfe says. He denies that the protected acts played any part in his omission. We have made findings of fact about his response when he was challenged by the Claimant for not organising shadowing. He said that he was not aware any request had been made. We find that what he meant by that is that the Claimant had not directly asked him to organise any shadowing opportunities before that time. The Claimant does not suggest that she did.

[330]We find that the whole explanation for Inspector Fyfe’s omission is that he focussed on opportunities in First Dispatch and did not turn his mind to shadowing as that had not been specifically raised by the Claimant. We would accept that if he had taken a more considered view of the instructions of CI Brown he ought to have recognised that he needed to do something about this. We accept that he did not recognise this. We find that the protected acts were not any part of the reasons for the omission. Allegation 4 – Asking the Claimant for additional information

[331]This allegation is made against Inspector Inglis and is brought both as a claim both under section 13 of the Equality Act 2010 as race discrimination and as a claim under Section 27.

[332]Properly understood there are not just two claims. The factual allegation includes three independent elements.(1) asking for additional information

(2) giving Lisa Wingrove and Stuart Walker additional time to complete their applications and

(3) offering them support.

[333]Dealing with the first factual element we draw on our findings of fact. Inspector Inglis asked the Claimant to resubmit her application form because she had not completed the sections requiring ‘verifiers’. The Claimant has incorrectly though that that required further evidence. It does not. We find that it is essentially a request for the identity of a referee who can confirm that the examples used for each competency are true. We find that asking the Claimant to complete her application properly is not something the Claimant could reasonably regard as a disadvantage. If she actually subjectively believed that it was then that belief flows from a misunderstanding of what she was being asked to do. Both a claim under Section 13 and a claim under Section 27 (when read with Section 39) require the Claimant to show that she has suffered a detriment. We have set out elsewhere what that entails. We are not satisfied that the Claimant has shown that there was anything she could reasonably complain of in asking for a properly completed form.

[334]In respect of the other two factual elements of the claim we have accepted that Lisa Wingrove ad Stuart Walker were given some time to complete their applications we have also accepted that they were given some guidance by Inspector Inglis. We shall accept for the purposes of this allegation that the Claimant was not given quite as much time. She did not discuss her application with Inspector Inglis.

[335]We accept that the Claimant could reasonably consider it a detriment that she was not given as much time to complete her application as her comparators. We shall assume in the Claimant’s favour that she could see not receiving the same advice as her comparators was a disadvantage.

[336]We consider it significant that the Claimant did not take up the suggestion that she should discuss her application with any line manager. There is no suggestion that the Claimant asked Inspector Inglis for time to complete her application forms. As such there are material differences between her and Lisa Wingrove and Stuart Walker in that respect. We also infer that Lisa Wingrove and Stuart Walker discussed their applications with Inspector Inglis. The Claimant did not. Again this is a material distinction.

[337]There was a finding against Inspector Inglis by the first tribunal that he victimised the Claimant. That tribunal found that he essentially did so on instructions that he later questioned. None the less we find that is sufficient by itself to require the Respondent to explain the treatment said to be victimisation.

[338]We do not accept that an adverse finding of victimisation automatically means that the burden of proof should pass in respect of a claim of race discrimination but, as we must turn to the Respondent’s explanation, it is somewhat academic.

[339]We did not hear from Inspector Inglis. However, we have some contemporaneous documentation where he deals with the Claimant’s application. As set out above his request that the Claimant complete the application form in full was a positive benefit to her. We find that this is a case where despite the fact that we have not heard from Inspector Inglis the reasons for the difference in treatment speak for themselves. In reaching this conclusion we have had particular regard to the fact that, on our findings, there were material differences between the Claimant and her comparators.

[340]We find that the reason that Lisa Wingrove and Stuart Walker were given the time they were to complete their applications is because they asked Inspector Inglis for that time. The Claimant did not. We reach a similar conclusion about ‘mentoring’. We infer that Lisa Wingrove and Stuart Walker took up the suggestion that they speak to their line manager about their applications. The Claimant did not. We find that that was the sole reason for the treatment. Neither the protected acts nor the Claimant’s race played any part whatsoever in the reasons for the treatment. Allegation 5 – Rejecting the Claimant for the role of Deputy Duty Officer.

[341]There are two aspects to this allegation which is brought as a claim both for direct race discrimination and as a claim for victimisation. The first is a complaint that the Claimant did not get the job. The Second is a complaint that Ronnie Jones was appointed as a deputy duty officer. The claims are levelled against Inspector Inglis and CI Brown and also against CI Wright and CI Capon who assessed the Claimant’s application when they sat on the panel.

[342]We accept that the Claimant was disappointed when she was told that her application for a position as a Deputy Duty Officer was not being progressed. As such we are satisfied that she has established a detriment.

[343]We would further accept that the Claimant could reasonably regard the more favourable treatment of Ronnie Jones as being a detriment. As we have set out in our findings of fact the Claimant is incorrect to suggest that he was appointed as a third Deputy Duty Officer. He was not. However he was asked to act up as a Deputy Duty Officer. As Ms Annand forcefully suggests in her submissions there is little transparency behind this process. She draws support from the Hotton report which suggested that transparency and clarity should be adopted where any individual is asked to act up.

[344]We are satisfied that the decision not to progress the Claimant’s application was one taken by the panel composed of CIs Wright and Capon. The application process is one that has been agreed with the Police Federation and PCS Union who observe panel proceedings. We are satisfied that the panel score the examples that are given with no regard to the comments of the first and second line managers. As such the complains against Inspector Inglis and CI Brown in respect of these decisions cannot succeed. Had it been necessary to do so we would have found that their comments on the Claimant’s application were nothing whatsoever to do with race of any protected acts. Their comments are objectively justified are reasonably balanced and we find reflect their genuinely held views of the application.

[345]We do not consider it necessary for us to set out the evidence that might go towards shifting the burden of proof we do not consider this an allegation where there is any uncertainty about the reasons for the treatment. We are entirely satisfied that the reason why the Claimant was not appointed was that firstly she did not have any first contact experience. Secondly she used one particularly weak example on her application form. We find that these reasons resulted in a score that meant that she was not invited to interview. We find that the reasons had nothing whatsoever to do with race or the fact that the Claimant had done protected acts.

[346]We then turn to the fact that Ronnie Jones was asked to act up as a Deputy Duty Officer. We would agree with the Claimant that there is a lack of transparency. She says and we accept that Ronnie Jones was not expected to go through any process. The Claimant is not quite right that he was appointed as a ‘third Duty Officer’ but his ad hoc acting up had much the same effect. The Claimant was not afforded that opportunity.

[347]There was no evidence that anybody named by the Claimant had been part of the decision making process. What is apparent from the decision of the first Tribunal and from the Claimants evidence was that he had been acting up in this role from around 2017.

[348]It is material that Ronnie Jones had been appointed as a Duty Officer prior to being asked to Act up on occasions. The Claimant had not. We find that having been appointed as a Duty Officer Ronnie Jones would inevitably have gained experience in carrying out the role.

[349]Addressing the claim brought under Section 13 of the Equality Act 2010 we conclude that the Claimant has established a disadvantage. She was not afforded the opportunity of acting up. The question is whether her race played a part in that. Despite the fact that we have not heard any evidence from any relevant decision maker we find that we are able to make a positive finding about the reason for this disparity in treatment. We consider the answer obvious and there is nothing to be gained from grappling with the burden of proof. We assume that the Respondent needs to show the reason for the treatment. We find that the Reason that Ronnie Jones was asked to act up as a Deputy Duty Officer was that he had experience in the role. We find that that difference fully explains the disparity in treatment between him and the Claimant. Her race played no part whatsoever in the reasons for the treatment.

[350]We reach the same conclusion in respect of the claim of victimisation. Again we assume that the burden passed to the Respondent. The whole reason for the treatment is that set out above. Allegation 6 - Refusing the Claimant time off for Counselling

[351]The Claimant says that the conduct of Inspector Fyfe amounted to harassment related to disability contrary to sections 26 and 40 of the Equality Act 2010 and/or victimisation contrary to sections 27 and 39 of the Equality Act 2010. The same facts are relied upon as a failure to make reasonable adjustments contrary to sections 20, 21 and 39 of the Equality Act 2010.

[352]As we have set out in our findings of fact above Inspector Fyfe did not refuse to let the Claimant have time off to attend a counselling appointment on 17 May 2019. What he did on 8 and 16 May was to refuse the Claimant’s request to change her shift pattern so that the appointment would fall in the middle of a working day which would ensure that the Claimant was paid for it.

[353]In her submissions Ms Anand refers to the appointment on 12 April 2019 She says, ‘it is not to a disabled persons benefit to offer them counselling unless they can actually attend it without having to use up 6 hours of TOIL to do so’. The Claimant did not put her case that way in the list of issues. His focus was only on the conduct of Inspector Fyfe. His only involvement with the appointment on 12 April 2019 was to agree that the time the Claimant took off work to facilitate her attendance at the counselling appointment was paid as disability leave. The list of issues does not include any suggestion that the initial stance that the Claimant’s absence from work would be taken out of her TOIL allowance gave rise to a claim under sections 26 or 27 of the Equality Act 2010. If it had done the Respondent would have needed to call other witnesses. We shall not deal with the claims on any other basis than set out in the list of issues. We do not understand Ms Anand to ask us to do otherwise.

[354]We shall deal with each claim advanced by the Claimant arising from these facts in turn. Allegation 6 - Harassment

[355]We accept that there was an unwanted refusal by Inspector Fyfe on 8 and 16 May 2019 of the Claimant’s proposal that she change her shifts in order that her appointment on 17 May 2019 fell within working hours.

[356]The next question we shall deal with is whether that refusal ‘related to disability’. The Respondent says that it does not. Reliance is placed on the fact that the Claimant did not explain her request by express reference to her disabilities. We find that this puts the ‘related to’ question too high. We consider that if there was a connection between any of the Claimant’s disabilities and the need for a counselling appointment that would provide a sufficient factual basis for concluding that the refusal ‘related to’ disability.

[357]The Claimant does not spell out this connection in terms but it is implicit in her case. The Claimant has established that she has stress and anxiety at a level that amounts to a disability – see the Judgment of EJ Hallen. She had been accepted on the counselling program specifically to address issues that had arisen in her personal life. From the correspondence written by the Claimant at the time and from her evidence before us we are prepared to accept that the counselling program would assist the Claimant manage her disability of stress and anxiety. That conclusion accords with common sense. We are therefore satisfied that the ‘refusal’ to accommodate her preferred shift pattern that would have allowed her to attend the appointment in working hours did relate to disability.

[358]If we had accepted the Claimant’s case that Inspector Fyfe had gone ‘above and beyond to sabotage my counselling program causing psychological and declining health through his bullying, gaslighting by playing with my weaker mental being’. We would have been compelled to find that the treatment complained of related to disability. We have not made such a finding. Below, when dealing with the same allegation put as a victimisation claim we make a finding about the reason for the treatment. We shall not repeat that analysis here. It is sufficient to say that Inspector Fyfe was in no sense whatsoever motivated by disability. Accordingly we reject any suggestion that the conduct related to disability because of any deliberate attempt to damage the Claimant’s health.

[359]We turn to the question of whether the unwanted conduct had the purpose of either violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. This turns on the motivation of Inspector Fyfe. Drawing on our conclusions in relation to the victimisation claim we are satisfied that Inspector Fyfe did not purposefully set out to violate the Claimant’s dignity or create an intimidating, hostile, degrading, humiliating or offensive environment. We shall proceed on the basis that the Respondent has the burden of proof in this regard. We have accepted elsewhere in this decision that the Claimant has proven facts from which victimisation or discrimination might be inferred. We repeat that analysis here. We take those matters fully into account when assessing the explanation given by Inspector Fyfe.

[360]Inspector Fyfe’s explanation in his evidence before us was exactly the same as in his e-mails to the Claimant at the time. He says, and we accept, that the Respondent’s policy as to medical appointments is that they should be taken in none working time if possible. The Claimant’s appointment fell into non-working time. She had asked for a change in shift so it fell within working time. Inspector Fyfe says that he refused that request because it was inconsistent with the policy that he and the Claimant were expected to follow. We find that a compelling explanation. We reject entirely the suggestion that this stance was a deliberate attempt to harm the Claimant’s health. The Claimant’s suggestion that it was more difficult for her to attend an appointment on a day when she had finished work the evening before and was not expected to start work again until the evening after the appointment simply does not stand up to any scrutiny. She could have had a long nights sleep before attending the appointment. If necessary she could have rested for the afternoon before returning to work in the evening. Her own request was to take the appointment during working hours is in conflict with her suggestion that the counselling appointment might be upsetting and make it difficult to work or sleep afterwards. Having regard to the totality of the evidence we are satisfied that Inspector Fyfe has proven that he did not have the purpose of creating the proscribed environment.

[361]We then must turn to the question of whether the conduct of Inspector Fyfe had the proscribed effect. We have no hesitation in accepting that the Claimant was upset and annoyed at Inspector Fyfe’s decision. We are in a position to make a finding about what aspect of the decision it was that upset the Claimant. We draw on the findings of the first tribunal and in particular those findings that deal with the question of premium payments. In addition we draw on our own findings about the dispute that arose when an accommodation was made to allow the Claimant to attend her counselling appointment on 12 April 2019. The request to leave early made by the Claimant was readily granted. The dispute concerned whether the time that the Claimant was not working should be paid or from any TOIL accumulated by the Claimant. The Claimant believes that the Respondent ought to bear the cost of her attending the counselling appointments. We find that that was her motivation in asking that her shift on 17 May 2019 be altered so she would be taking her appointment during working hours. Not only do we not accept that the Claimant was disadvantaged by the impact on her health by being expected to attend her appointment between shifts we find that the Claimant knew that that was not a disadvantage. The disadvantage was that the Claimant would have to attend the appointment without being paid to do so. That is what she was upset about.

[362]We have set out above a finding that the Claimant was annoyed and upset at Inspector Fyfe’s refusal to grant her request. Drawing on all the evidence and the conclusions of the first tribunal we would accept that the Claimant perceived Inspector Fyfe’s decision to be hostile and offensive. We take that into account as we must according to Section 26(4)(a).

[363]We then turn to the question of whether it was reasonable for what Inspector Fyfe did to have that effect on the Claimant. We find that it was not. We consider it surprising that the Claimant would regard being expected to attend counselling appointments in her own time as being onerous. The Claimant was aware of the policy that stated that she should attend appointments in her own time where possible. It is an entirely reasonable policy. We have rejected the Claimant’s suggestion that it was difficult for her to attend the appointment between two shifts. We find that is something she has come to rely upon simply to justify her position. We find that a reasonable employee would not have regarded Inspector Fyfe’s decision as having the effect of creating the proscribed environment. A reasonable employee would have recognised that he was following the standard policy. We are supported in this conclusion by our conclusions in the reasonable adjustment claim.

[364]Taking a realistic view of the conduct set against the entire factual background, as Dhaliwal suggests we must, we have concluded that Inspector Fyfe’s two decisions did not have the effect referred to in Section 26(1)(b). It follows that allegation must fail. Allegation 6 - Victimisation

[365]Essentially for the reasons set out above we have some considerable reservations about whether the Claimant has shown that by not getting her way in this matter she could reasonably consider that she has been subjected to a detriment. However we need not decide that issue.

[366]We find ourselves in a position to make clear findings of fact about Inspector Fyfe’s motivation for his conduct. We acknowledge the burden of proof and accept that if we move directly to assessing the reasons for the treatment we must have regard to any material that would support an inference that the treatment was motivated by any of the protected acts.

[367]We accept Inspector Fyfe’s explanation as to why he acted as he did. The explanation was in essence that he was following the policy that indicated that appointments should be taken in a staff members own time where possible. What the Claimant was asking for inconsistent with that. We find that Inspector Fyfe did not accept the Claimant’s suggestion that her shift pattern made attending the appointment she had been given difficult. We find it didn’t. The Claimant simply wanted to be paid for attending the appointment. Inspector Fyfe regarded that as contrary to the Respondent’s established policy. That is a reason that had nothing whatsoever to do with any of the Claimant’s protected acts. For this reason the claim cannot succeed. Allegation 6 - Reasonable Adjustment claim 1

[368]The Claimant relies upon the facts supporting Allegation 6 to say that there has been a failure by the Respondent to make reasonable adjustments. As originally formulated the ‘PCP’ relied upon by the Claimant was said to be a requirement to take medical appointments in ‘personal time’. That appeared to refer only to the appointment the Claimant had on 17 May 2019. In an addition to the list of issues, which it is not suggested by the Respondent goes outside the pleaded case, the Claimant relies also on a PCP said to be a requirement to use TOIL or annual leave to facilitate appointments. That appears to relate to the appointment on 12 April 2019.The adjustments contended for are allowing the Claimant to attend the appointment during duty time and allowing her to take disability leave to facilitate her attendance.

[369]The Respondent did have a policy of requiring staff to take medical appointments outside their rostered hours. However the policy is not set out in absolute terms. The requirement is expressed as ‘where possible’. As such the policy clearly envisages that there might be exceptions. Nevertheless we would accept that a such a policy does amount to a PCP of ordinarily expecting staff to take appointments in their own time.

[370]The second PCP is somewhat different it suggests that the Respondent had a policy or practice in circumstances such as arose for the Claimant on 12 April 2019 where attendance at a medical appointment outside working hours requires some time off. In those circumstances the time off would either be ‘repaid’ from TOIL or taken as annual leave. We have reminded ourselves of what is said in Nottingham City Transport v Harvey referred to in the self-direction of the first tribunal. What is necessary is an ‘element of repetition’. We would have thought that the circumstances that arose on 12 April 2019 would not arise very often, but we think that they would not be unique. The Claimant had difficulties attending a counselling session hours after she was expected to complete a night shift. That was why she asked for, and was granted, time off work in order that she could get some sleep before the appointment. A need to leave work early to attend an appointment is not such a rare prospect. We are satisfied that where a staff member took time off in these circumstances their time off would generally be categorised as ‘leave’. That was the approach of Paul O’Donnell to the Claimant’s request for the time off. We find that he would have taken the same approach in any similar circumstances. There is in our view the necessary ‘element of repetition’.

[371]We then turn to the question of whether the first PCP placed persons sharing the Claimant’s disabilities at a substantial disadvantage. That exercise requires a comparison to be undertaken. In terms of the ‘cost’ assuming that persons with the Claimant’s disabilities have the same number of appointments as those without both groups would suffer exactly the same disadvantage. However, the assumption made is almost certainly incorrect. Whilst we had no direct evidence we are prepared to take judicial notice of the fact that people with the Claimant’s disabilities are more likely to require medical appointments. It would follow that more of their free time would be taken up with attending medical appointments than persons without a disability.

[372]We reach the same conclusion in respect of the second PCP. The need to take time off to facilitate attending appointments is likely to be more common for people with the Claimant’s disabilities than those without a disability.

[373]The issues that remain are whether the adjustments contended for by the Claimant were reasonable ones for the Respondent to take. We have had regard to the extract from the Statutory Code of Practice referred to in the self-direction in the first tribunal decision.

[374]The first adjustment (to PCP1) suggested by the Claimant is that she should have been allowed to attend appointments during her working hours. We consider that somewhat artificial as it suggests that the Claimant was prevented from taking appointments that fell within her working hours. In fact the appointments all fell outside working hours. She asked for a shift change on 17 May 2019 to move an appointment from non-working time into her rostered time.

[375]We have found that there was nothing at all in the Claimant’s argument that it was better for her health to take the appointment mid-shift as opposed to on a rest day. We find that the disadvantage for the Claimant of attending an appointment in her non-working time was that she would not be paid for attending the counselling session and would use up her free time. We accept that the adjustment contended for would completely irradicate that disadvantage.

[376]In assessing whether the adjustment contended for is reasonable we have to have regard to all the circumstances. We considered the following matters to be of importance: 376.1. The Respondent makes available to its staff at its expense a counselling service and does not distinguish between needs that arise because of issues in the workplace and those which arise because of other life events. 376.2. As we have set out above the Respondent’s policy that directed staff to take medical appointments in non-rostered hours is not couched in absolute terms. The requirement is to take such appointments when possible. What was expected was that an employee was asked to take reasonable steps to book appointments that would not clash with work commitments. 376.3. The Respondent’s policies made special provision for ‘disability leave’. Where there was a need to take time off work to attend any appointment designed to assist with a disability there was special provision for how that leave would be treated. It was not treated as sick leave utilising the allowance that usually applied. The availability of disability leave did not override the ordinary requirement that appointments should be made where possible within working hours. What the policy does is say that if it is necessary to take time off within working hours that might be treated as disability leave. It follows that the question of disability leave did arise in relation to the appointment of 12 April 2019 because it was recognised that the Claimant needed time off her rostered hours to enable her to attend. It did not come into play on 17 May 2019 because she did not. 376.4. The work undertaken by MetCC at the Bow Police Station is a vital public service that deals with emergencies and its efficiency might make the difference between life or death. The rostering arrangements are relatively complex and are undertaken well in advance. The Claimant’s role was an important one, she was a supervisor. Shifts were generally 12 hours long divided into day shifts or night shifts. If the Claimant was released from her duties in order to attend a counselling appointment either her work would need to be covered by others or the service would be understaffed. The Claimant says this in her witness statement (para 65) which only emphasised the difficulties of releasing staff from agreed shifts: ‘MetCC is understaffed, under resourced and have never had enough staff to answer 999/101 calls hence the daily requests from management for overtime takers. The MPS were placed under special measures precisely for this reason for 999/101 calls, by the HMICFRS and deemed a failure’. 376.5. We find that it would be difficult to find a supervisor to cover just 3 hours in the middle of the day. We accept that with staff members released for some hours of their shifts the service would not grind to a standstill. The Claimant had been released from shifts on many other occasions – see the first decision for a description of her working reduced hours. That said the service was under pressure. The fact that it had accommodated time off during working hours does not mean that this did not place some strain on the service. We would accept an argument made by the Claimant that there was no compelling evidence why the ‘shift slide’ she proposed could not have been organised with somebody else asked to cover the night shift she had been expected to start on 17 April 2019. However that would still have required her to have been released from her duties for 3 hours. 376.6. Releasing the Claimant for 3 hours on a working day (and paying her) would come at a cost to the Respondent. In assessing the reasonableness of expecting the Respondent to bear this cost we consider it artificial to focus only on the cost of making this adjustment just for the Claimant. Any disabled person with a need to attend medical appointments would be exposed to the same PCP and would be expected to attend medical appointments in their own time. They would suffer the same disadvantage as the Claimant. That time would be unpaid and it would eat into their free time. If an accommodation were made for the Claimant then the Respondent would be expected to make a similar adjustment for other disabled employees. In an organisation as vast as the Metropolitan Police Service that is likely to be a significant cost.

[377]We would categorise the disadvantage to the Claimant of abiding by the PCP to be minor. It did not interfere with her ability to access the counselling service. She simply had to do so in her own time. Balancing that against the disadvantages to the Respondent we are satisfied that the cost (across the organisation) together with the disruption caused to the service of a staff member being absent mid-shift outweigh any disadvantage to the Claimant and mean that the adjustment contended for is not one which this tribunal consider it reasonable for the Respondent to have to take.

[378]The second adjustment that the Claimant contends for is that she should not be required to use TOIL or annual leave in order to facilitate attendance at an appointment. As we say above this was the initial stance taken when the Claimant asked for time off so she could sleep before her appointment on 12 April 2019.

[379]The short answer to this claim is that whilst the Claimant was told that if she wanted to take time off work in the early hours of 12 April 2019 she would need to take it as TOIL or annual leave when she asked if this could instead be treated as disability leave her request was granted and she was paid for the time she had taken off.

[380]The Claimant’s complaint appears to be that she was not immediately granted disability leave as soon as she asked for the time off. Factually that is correct. We note from the disability leave policy that there is a requirement that ‘It is for a fixed period or periods of time that is/are known in advance. Except in cases of real urgency, you must seek permission from your line manager for disability-related leave prior to taking that leave’. The Claimant did not ask for disability leave in advance. She did not do so until 8 May 2019. Her request was granted in retrospect despite this requirement.

[381]What we are left with is the question of whether the policy of having to specifically ask for disability leave is one that ought to be adjusted. Whilst that is not quite how the Claimant put her case, given that she was paid for the time she took off, it seems to us it is the only way her claim might succeed. The adjustment would have to be one that waived the requirement to make a request and granted disability leave automatically. The disadvantage to the Claimant if this adjustment is not adopted is that she would have to make a request to take the time off as disability leave. We regard this as a very minor disadvantage.

[382]We find that there are compelling business reasons for offering disability leave in these circumstances as a discretionary rather than automatic benefit. Whether it is appropriate to grant such leave will depend on the facts of each case. Factors such as the ability of the staff member to schedule a more convenient appointment, the nature of the medical appointment to be attended together with the nature of the disability, the amount of time off that is requested and whether it is a one off or regular request. There may be other factors that would arise in other cases. The whole question of whether paid time off should be granted to facilitate a medical appointment is a fact specific exercise. The Claimant’s case is a paradigm example of that. Had her appointment on 12 April 2019 been at 4pm instead of 11am it may not have been reasonable to grant her any paid leave at all. For the same reason it was unnecessary to grant disability leave for the appointment on 17 May 2019 as it was unnecessary as the Claimant could attend her appointment without taking any time off work.

[383]In assessing the reasonableness of the adjustment we have also had regard to the issues of inconvenience and cost that we have set out in respect of PCP1. These are of equal weight here.

[384]We have reached the conclusion that, by having a discretionary policy that permits ‘disability leave’ which provides paid leave where necessary to facilitate attendance at appointments within or outside working hours the Respondent has made all adjustments that are reasonably necessary to address the disadvantages for the Claimant. It is not reasonable to expect the Respondent to adopt a more generous policy. Allegation 8 - Joanna Wood questioning the Claimant about ‘walking the floor’

[385]This allegation was originally said to give rise to claims of discrimination because of something arising in consequence of disability contrary to sections 15 and 39 of the Equality Act 2010, Harassment related to disability contrary to sections 26 and 40 and victimisation contrary to Sections 27 and 39. The ‘arising in consequence’ claim under Section 15 was withdrawn by the Claimant and is dismissed for that reason.

[386]In our findings of fact set out above we have accepted that Joanna Wood asked the Claimant on two occasions why she was not ‘walking the floor’. Our factual conclusion is that that could reasonably be seen as micromanagement. We shall turn to the issue of whether that was unlawful addressing each of the remaining claims in turn. Allegation 8 – Harassment

[387]It follows from our findings that the micromanagement of the Claimant by Joanna Wood was reasonably regarded by the Claimant as unwanted conduct. The question of whether that unwanted conduct related to disability is in this case inextricably bound up with the question of whether the fact that the Claimant had any disability formed any part of the reasons for the treatment complained of. If it did then clearly the conduct would relate to disability and furthermore it is likely to have the purpose of creating the proscribed environment. Conversely, if Joanna Wood did not have the Claimant’s disabilities in mind then we cannot see how asking a supervisor to ‘walk the floor’ can be said to relate to disability. Had the Claimant raised her disabilities as an objection the first time the instruction was given then that would be different but she does not say that she did.

[388]We did not hear from Joanna Wood. Insofar as there are any explanations about her reasons for her actions we are only in a position to make a finding about those reasons where we are able to draw inferences from our findings of fact in relation to the surrounding circumstances.

[389]Below we set out our reasons for finding that the Claimant has proven facts sufficient that the Respondent must assume the burden of proving the reason for Joanna Woods conduct in relation to the victimisation claim (which we have upheld). It does not follow from that conclusion that the burden passes for this claim. The fact that a person engages in victimisation does not necessarily support the suggestion that they might engage in unlawful discrimination. It is necessary to carry out an entirely separate exercise of asking whether the Claimant has proven facts from which we could, in the absence of an explanation from the Respondent find that Joanna Wood’s actions in micromanaging the Claimant were related to disability.

[390]We note that when the Claimant raised issues of Joanna Wood’s conduct when acting as a union representative for ‘Marcel’ she reported allegations of differences of treatment concerning race [see paragraph 94 of the first Tribunal decision]. Joanna Wood was not said within the first tribunal proceedings to have been responsible for any unlawful act arising out of disability.

[391]The Claimant sets out her reasons for her concern at being asked to work with Joanna Wood at paragraph 19 of her witness statement. The first thing she refers to at sub paragraph (a) is an incident in 2012 where she refers to the suicide of a staff member. She says ‘it was common knowledge that Joanna Wood did not support the staff member in her declining health. This was an example of a matter where Mr Martin suggested that the Respondent had simply not come equipped to deal with such wide ranging allegations. We have considered what findings of fact we could make from the Claimant’s reference to this matter. In the first decision the Tribunal notes the Claimant’s propensity to exaggerate. We have reached similar conclusions in respect of some aspects of her evidence. We do not consider that there is any sufficient material within these passages of the Claimant’s statement for us to make any findings of primary fact that would provide any support for drawing an inference that Joanna Woods treatment of the Claimant was related to disability. Even assuming that the Claimant’s assertion that Joanna Wood did not support a suicidal employee has some substance there could be any number of explanations for that, some good, some bad but which were not evidence of a propensity to discriminate where disability is concerned.

[392]Sub-paragraphs 19(b) to (g) of the Claimant’s witness statement refer to victimisation and make suggestions that Joanna Wood targeted what she has referred to (we would not use the phrase) BAME members of staff. There is no reference to ill treatment of those with disabilities. We are in no position to make any findings of fact about the allegations that the Claimant makes in these paragraphs. There is no detail whatsoever that would allow us to do so.

[393]Whilst the Claimant makes numerous complaints about Joanna Wood in her witness statement none of which expressly suggest any propensity to discriminate against disabled persons. Where there are allegations concerning third parties they are in the main very generalised. There is an exception to that where the Claimant refers to one specific example, that of Nadia Anwar who had applied for a Deputy Duty Officer’s position. The managers assessment by Joanna Wood is very unfavourable. It is written in trenchant terms. Hoverer the Claimant attributes that to racism. We have insufficient evidence one way or the other to reach a conclusion about that. We would accept that the terms in which the assessment is given call for an explanation but we are not required to reach a conclusion within these proceedings about the reason for that treatment.

[394]The Claimant has suggested that a reason for connecting the instruction of Joanna Wood to her disabilities is her lack of mobility. We would accept that if the Claimant was unable to get up and move around that and that might provide the necessary link that the treatment related to disability. The difficulty for the Claimant with this argument is found in the decision of the first Tribunal. In November 2018 there had been a recommendation made by the Respondent’s OH provider that the Claimant be permitted microbreaks allowing her to move away from her pod. She succeed in her claim that there was a failure to put this recommendation into practice. The evidence was that getting up from her chair in a pod was good for the Claimant. We are not persuaded that the Claimant was unable to get up and ‘walk the floor’. Indeed that was something that had been recommended as an adjustment. We note that that was not something that the Claimant suggests she raised with Joanna Wood.

[395]The Claimant says that Joanna Wood was aware that she was on recuperative duties. We can accept that. However that does not lead to a conclusion that Joanna Wood had any idea that walking the floor would pose any problems. It would not have done. She was quite capable of getting up and moving around.

[396]The Claimant in her witness statement makes reference to the IOPC Hotton report and the Baroness Casey report. We have read these. The Hotton report, which makes grim reading, does refer to examples of disability discrimination/harassment by serving police officers in group chats. The evidence on which the interim Casey report was based was included in the supplementary bundle. There is no reference to disability discrimination within that report. The Claimant has provided us with the Inclusion and Diversity Strategy 2017 – 2021. That report includes statistics from a staff survey that suggest that disabled staff members felt generally less well treated than non-disabled staff members. The differences for the various measures range between 7 and 17%. Statistically significant but not overwhelming. To sum up that evidence we would say that there is evidence of a level of discrimination in relation to disability within the MPS.

[397]At paragraph 19(h) of her statement the Claimant refers to a statement made by Jennifer Steel in support of a grievance brought by the Claimant she makes a very generalised allegation saying that she ‘felt harassed and discriminated against due to her race and age’. The author of the email did not give evidence before us. We could not test whether what she ‘felt’ had any factual basis. In any event the allegations concern race and age and even if true would carry less weight than had they concerned disability.

[398]We accept that our finding below that the Respondent has failed to prove that the Claimant’s protected acts were not a reason for the micromanagement of the Claimant by Joanna Wood provides evidence that would suggest that Joanna Wood could and did behave unlawfully. That provides some evidence which gives rise to the possibility of other discriminatory conduct.

[399]The Claimant can also point to the fact that there have been other instances within the same workplace where the first Tribunal has upheld complaints of disability discrimination although not relating to the actions of Joanna Wood. That too gives rise to the possibility of discrimination.

[400]Standing back and looking at the evidence as a whole we need to ask ourselves whether the Claimant has proven facts from which we could infer that Joanna Wood’s conduct related to disability. Above we have identified some evidence that gives rise to a possibility. We must look at any accumulation of possibilities and ask whether together we could infer that the treatment related to disability. We find that the evidence as a whole excluding any explanation, would not be sufficient that we could properly draw such an inference.

[401]It follows that this claim must fail. We do not need to go into the question of whether such micromanagement had the purpose of effect proscribed by Section 26. Allegation 8 – Victimisation

[402]We have found that Joanna Woods approached the Claimant on two occasions asking her to walk the floor and that this amounted to micromanagement which the Claimant could reasonably consider unnecessary. The test for what amount to detriment sets a fairly low bar. Whilst not all instances of micromanagement might amount to a detriment we find that repeated instructions of this nature are capable, and in this case do amount to a detriment.

[403]We need to look at the reason for the treatment. We remind ourselves that victimisation will be made out if any protected act played any material part in the reasons for the conduct.

[404]We need to ask whether the Claimant has proven facts from which we could infer discrimination. We do not find it necessary to deal with all the evidence. To deal with this particular allegation. It is sufficient to say that Joanna Wood was plainly aware of Protected Act 1 – which was the Claimant relaying complaints that Joanna Wood had discriminated against staff because of race. That had led Joanna Wood to bring a grievance. The fist Tribunal decision sets out the process of that grievance and the efforts made by Joanna Wood to progress it. We have found above that Joanna Wood was not happy that the grievance outcome was that the issue would be left to the Claimant’s (former) trade union. We have accepted that Joanna Wood had said that she was prepared to work with the Claimant. That does not in our view mean that there is no possibility of any residual animosity.

[405]Whilst we must have regard to all the evidence we find that those basic facts set out above are sufficient that in the absence of any explanation from the Respondent we could properly infer that the micromanagement of the Claimant was an act of victimisation. In reaching that conclusion we have considered the Claimant’s evidence that Joanna Wood was demanding and micromanaged other employees. That may well have been the case but it does not mean that she could not have allowed her views of the Claimant’s first protected Act to influence her decision to do so on this occasion.

[406]Joanna Wood was not called to give evidence. No explanation for this has been given. We do not need to draw inferences from that. It is sufficient that we say that the Respondent would need to show that the protected act 1 formed no part of Joanna Wood’s reasons for deciding to micromanage the Claimant. We accept that there is evidence that that was just her style but in our view that is insufficient to discharge the burden that of showing that the treatment was in no sense whatsoever because of the protected act. The Respondent might have discharged that burden had it called Joanna Wood to give evidence but that is speculative.

[407]This claim therefore succeeds. Allegations 9 and 10 – events flowing from Joanna Wood’s e-mail of 9 August 2019.

[408]The allegations levelled at Joanna Wood (allegation 9) is that her e-mail of 9 August 2019 amounted to harassment contrary to Sections 26 and 40 of the Equality Act and/or victimisation contrary to Sections 27 and 39 of that act. The allegations made against Inspector Fyfe (allegation 10) are brought under the same two sections. We shall deal with each in turn but make some general points before we do so.

[409]In our findings of fact above we have set out the e-mail that was sent by Joanna Wood. We have found that the facts set out in that email were correct. The Claimant had left her pod early. The fact that she had arrived early did not mean that she was entitled to leave early. She had not told Joanna Woods that she was leaving or what she was doing. We find that there was a high level of animosity between the Claimant and Joanna Wood. Some of Joanna Wood’s animosity we have found above was unlawful. However, Joanna Wood’s role meant that she had some managerial responsibilities on 9 August 2019. On the Claimant’s own case she did something that could have caused any manager to question her about her reasons for leaving early and not informing them when she did so.

[410]The way the Claimant puts her case is to say that the e-mail ‘accuses her of leaving her shift early’. Joanna Woods did not do that she was very careful to acknowledge that the Claimant might have been at work elsewhere in the building. The Claimant’s response is very aggressive but in our view on this occasion understandable given that we have found that Joanna Wood had micromanaged her during the shift and that that was victimisation. That might explain the Claimant’s subjective response but the question for us is that whether in that context any reasonable objection could be made to Joanna Wood’s email. We have come to the conclusion that given the factual circumstances that the Claimant accepts her response to the email was objectively unreasonable. The email was entirely innocuous and simply reminded the Claimant of her responsibilities in modest terms. Allegation 9 – as a claim of harassment related to disability

[411]We would accept that receiving the e-mail was unwanted. The Claimant had an awful relationship with Joanna Wood and did not want to be managed by her.

[412]In her comprehensive written submissions Ms Anand deals thoroughly with why she says that this allegation is one of victimisation. The question of how this same allegation amounts to harassment related to disability is not addressed in any detail. There is nothing in the email that overtly relates to disability. We would accept that if the reasons for sending the e-mail were themselves concerned with disability in some way then that would suffice. The Claimant says in her witness statement that she had left her pod early in order to take medication and get changed as she was wearing a back support. Those issues clearly relate to her disabilities. However, that explanation was not known to Joanna Wood. We do not think that necessarily matters and shall proceed on the basis that the unwanted conduct did relate to disability.

[413]We must consider whether the purpose of sending that e-mail was to subject the Claimant to the proscribed environment. We shall assume that the Respondent bears the burden of proof on this point. Despite the fact that we have not heard from Joanna Wood we are entirely satisfied that the purpose of this email was not to create the proscribed environment. Our reasons for that are straightforward. We find that despite the animosity between Joanna Wood and the Claimant she could never have imagined that an email written in the terms that it was could have been capable of violating the Claimant’s dignity or creating a hostile degrading, humiliating or offensive environment for her. Given the terms of the email it is highly unlikely that it was written with that purpose. We find that it was not.

[414]We turn then to whether the email had the proscribed effect. As we have set out in our self-direction above it can only be treated as having that effect if it is reasonable for the Claimant to subjectively regard it as doing so. We find that no reasonable recipient in receipt of that email, even one with the knowledge of the animosity and unlawful victimisation set out above would have treated this email as having the effect described in Section 26(1)(b) of the Equality Act 2010. Allegation 9 – as a claim of victimisation

[415]For a claim of victimisation to succeed there must be a detriment. We remind ourselves that what is or is not a detriment must be seen from the perspective of the Claimant the objective element requires that perspective to be reasonable – see Shamoon v Chief Constable of the Royal Ulster Constabulary

2003 ICR 337

, HL and a recent application of that in Warburton v Chief Constable of Northamptonshire Police

2022 EAT 42

. We would accept that subjectively the Claimant regarded Joanna Wood’s e-mail as offensive and humiliating. The question is whether she might reasonably form that view.

[416]We have come to the conclusion that the Claimant could not reasonably have regarded the e-mail from Joanna Wood as a detriment. The terms of the e-mail raise a perfectly understandable concern about undisputed facts. The tone is entirely reasonable and the Claimant is expressly given the benefit of the doubt in respect of why she might have left her station early. In those circumstances we do not find that there was a detriment. It follows that the claim must fail.

[417]If we are wrong about that then for the same reasons as we have set out in respect of the victimisation claim arising from Allegation 8 we would have found that the burden of proof shifted to the Respondent to show the reason for the treatment. There would appear to be a perfectly good explanation for the e-mail that is implicit in its terms. Furthermore the Claimant’s own evidence is that Joanna Wood was an exacting manager. As such the e-mail is what might have been expected in the circumstances. Against that there is the evidence which has caused the burden of proof to shift. If we are wrong about the question of the email being a detriment we accept that in the absence of any evidence from Joanna Wood the claim would have succeeded. Allegation 10

[418]This allegations two allegations are levelled at Inspector Fyfe. The factual basis relied upon by the Claimant is that Inspector Fyfe criticised her. We have made findings of fact above about what occurred during the meeting between Inspector Fyfe and the Claimant. We have not accepted the Claimant’s account that she was criticised by Inspector Fyfe. It the light of that both the harassment and victimisation claim fail. There was no unwanted conduct as described by the Claimant nor a detriment. Allegation 12- Refusing the Claimant disability leave.

[419]The Claimant says that the decisions conveyed to her by Inspector Fyfe that she would not be given disability leave to attend a medical appointment on 24 September 2024. She says that this amounted to both Harassment related to disability and to Victimisation. She says that both Inspector Fyfe and Superintendent Warby are responsible.

[420]The Claimant corresponded with Superintendent Warby about this matter but we find that he played no part in the decisions that were taken. Those were taken exclusively by inspector Fyfe. The claims against Superintendent Warby cannot therefore succeed. Allegation 12 – as Harassment

[421]We would accept that the decision made by Inspector Fyfe to refuse her request for disability leave was unwanted. She did not want to work at Lambeth as she regarded the journey as difficult. We would further accept that the decision made by Inspector Fyfe related to disability. What was under discussion was the extent to which the Claimant’s medical appointments needed to be accommodated. Those appointments arose from her disabilities.

[422]We then need to ask whether the decisions made by Inspector Fyfe were for the purpose of creating the proscribed environment set out in Section 26 of the Equality Act 2010. We find that this was not Inspector Fyfe’s purpose. Very far from it. He was endeavouring to agree a solution that was consistent with the Respondent’s policies. In particular the policy that suggested that medical appointments should be taken in the staff members own time or where, as here the contractual hours were shortened due to ‘recoupment’, during those hours.

[423]Having rejected any suggestion that Inspector Fyfe acted with the purpose of creating the proscribed environment was turn to the question of whether his actions had that effect. We would accept that the Claimant subjectively perceived Inspector Fyfe’s decision as hostile.

[424]We have made findings of fact that show that the decision of Inspector Fyfe was taken in accordance with the Respondent’s policy. It is objectively entirely reasonable for the Respondent to expect staff members to take medical appointments within periods of recoupment or their free time. We have found that there was a total closure of the Bow Centre for IT works. It was reasonable for Inspector Fyfe to expect the Claimant to attend another centre. He identified Lambeth and explained how the Claimant would be able to obtain parking.

[425]Asking ourselves the question posed by Sub-Section 26(4)(c)of the Equality Act 2010 we have come to the conclusion that the conduct of Inspector Fyfe in this regard could not reasonably crate the proscribed environment. Accordingly the conduct must be held not to have that effect. Allegation 12 – Victimisation

[426]We would accept that the Claimant could reasonably consider Inspector Fyfe’s decision to be a disadvantage although consistent with our finding above one very much at the minor end of the scale.

[427]For the reasons given elsewhere we shall assume that the burden falls on the Respondent to show that the protected acts played no part in this decision. We find ourselves in a position to make positive findings as to the reason for the treatment. In doing so we have not lost sight of the matters that cause the burden of proof to shift. However, we find that the reason for the treatment is quite clear. Inspector Fyfe was following the policy that required employees to take appointments in recoupment hours or their own time wherever possible. Inspector Fyfe, rightly in our view, formed the view that if the Claimant worked at Lambeth she could attend her appointment with little difficulty in her recoupment hours. She did not require disability leave to do so. That reason had nothing to do with any protected act. Allegation 13 – Events arising from the meeting of 14 September 2019

[428]On 14 September 2019 the Claimant and Inspector Fyfe met to discuss the decisions forming allegation 12. Those decisions were as the Claimant says reiterated. Inspector Fyfe maintained his position. There are two further aspects to this allegation which are separate claims. The first is a suggestion that Inspector Fyfe ‘questioned the Claimant’s disabilities’ and secondly that he accused the Claimant of being agitated and loud. Those three aspects of this allegation are brought both as claims of Harassment and of Victimisation. There are therefore 6 claims in all.

[429]We can deal with the ‘reiteration claim very swiftly. We adopt the reasons we have given in addressing allegation 12. We find that the reasons Inspector Fyfe had for his decision was nothing to do with any protected act. The decisions made by Inspector Fyfe could not reasonably have the effect of creating the proscribed environment. We have had regard to our findings about what occurred in the meeting of 14 September 2014 when reaching those conclusions.

[430]The list of issues refers to a complaint that the Claimant was not permitted to do administrative work at Bow. She was not. The Bow centre was completely closed. We return to that when assessing the reasonable adjustments claim. Being told correctly that something is not possible cannot be a detriment and cannot reasonably be regarded as harassment.

[431]The remaining parts of this allegation concern what was said at the meeting on 14 September 2019. We have accepted that this became an uncomfortable meeting. We have accepted that the Claimant’s disabilities were discussed. We have not accepted the Claimant’s account that Inspector Fyfe ‘questioned her disabilities’ in the sense that he disputed that she had symptoms.

[432]Addressing the claim as one of victimisation we find ourselves in a position of being able to make clear findings of fact about the reason the Claimant’s disabilities were discussed. They were discussed because they were central to the meeting and the Claimant’s request for accommodation. The reason that the issue of a blue badge was raised is that it was relevant to whether the Claimant would be automatically given a parking space at Hendon. Insofar as Inspector Fyfe suggested that the Claimant had become agitated and loud it was because she was. Referring to a line manager as ignorant’ is a paradigm example of that conduct. We find that Inspector Fyfe did remark on her behaviour but his reason was to attempt to calm her. None of these reasons has anything whatsoever to do with the fact that the Claimant did any protected act.

[433]We then assess whether the same matters amount to Harassment. We would accept that the Claimant regarded Inspector Fyfe’s discussions about disability to be unwanted. She was annoyed by his reference to a Blue badge. We have found that this was a ‘difficult conversation’. It was always going to be difficult because the Claimant did not agree with the proposals made by Inspector Fyfe. We accept that subjectively the Claimant would have perceived the conversation as hostile or even offensive.

[434]We find that it was not Inspector Fyfe’s purpose to offend the Claimant in any way. He did not have the purpose of creating the proscribed environment. He simply wished to discuss the Claimant’s requests and that led inevitably to a discussion about disability.

[435]We then turn to the question of whether what Inspector Fyfe said in that meeting could reasonably be regarded as harassment. We would accept that discussing disability is difficult and that offence can be caused quite easily. We would accept that Inspector Fyfe became drawn into a conversation and the meeting became unpleasant. It is quite a finely balanced question as to whether the Claimant might have reasonably believed the conversation was hostile or offensive. Such issues need to be judged having regard to the Claimant’s own subjective beliefs. We have come to the conclusion that objectively Inspector Fyfe, perhaps just, stayed on the right side of the line. What he said, in the context that he said it, could not reasonably be regarded as creating the proscribed environment. Reasonable Adjustment claims 4 and 5

[436]These allegations are essentially the same. They concern the same events as allegations 12 and 13. Four PCPs are identified that are said to give rise to a substantial disadvantage for persons with the Claimant’s disabilities. These are: 436.1. A requirement to adhere to a set attendance expectation 436.2. A requirement to attend medical appointments in personal time 436.3. A requirement to work at Lambeth when the Bow Centre closed; and 436.4. A requirement to use public transport to travel to Lambeth.

[437]In relation to the first PCP we accept that the Respondent had a practice of requiring staff members to work their rostered shifts. In respect of the second this reflects the policy that we have discussed above and in our findings of fact.

[438]The third PCP identified is less obvious. The proposal that the Claimant work at Lambeth was made when she asked for her medical appointment to be accommodated. There was no requirement that the Claimant worked at Lambeth. She did not actually agree to do so. We do not consider that the Claimant has established that this PCP applied to her as such. We think that the PCP is better formulated as being a requirement to work elsewhere when Bow was closed. That PCP was applied to her.

[439]The Claimant was not required by the Respondent to use public transport to travel to Lambeth. Well before the Claimant needed to travel she was informed of how she could obtain parking near the centre.

[440]We need to ask whether the two PCPs we have identified that were applied to the Claimant placed had at a substantial disadvantage compared to people without her disabilities. The Claimant says that she would be placed in physical discomfort.

[441]We would accept that when Bow was closed the Claimant would face a longer journey to work. She would find this more tiring because of her disabilities. A feature of the first PCP and of our reformulated PCP3 is that the staff were required to work at other centres when Bow was closed. As such we would accept that PCP1 and PCP 3 did place her at a substantial disadvantage. We would further accept that being required to make medical appointments in her own time was something that would affect disabled persons more frequently than persons without a disability. The disadvantage that had was that free time rather than work time was used to attend appointments.

[442]The next issue is whether the adjustments contended for by the Claimant were ones which it was reasonable to have expected the Respondent to make. We have reviewed our legal self-direction and in particular the guidance given in the Statutory Code of Practice.

[443]The first adjustment contended for is that the Claimant be granted disability leave. This would have meant that she was released from her duties entirely. We accept that if the Respondent had granted disability leave for the days that the Claimant had appointments then she would not have suffered any disadvantage.

[444]In assessing the reasonableness of the adjustment we ned to look at the extent of the disadvantage to the Claimant. If the Claimant had adopted the proposal made by Inspector Fyfe she could have attended the appointments she had in her ‘recoup hours’ that way she would be paid for them and she would not use any of her free time. She could have driven to Lambeth where there was parking. We find that this proposal too would have alleviated all disadvantage to the Claimant with the exception of a longer journey time. The Claimant had elected to travel to Hendon which is a significantly longer journey.

[445]An obvious disadvantage of granting disability leave for a full shift was that the Claimant would not be available for work. The Respondent runs a vital public Service and the Claimant agrees that it is understaffed.

[446]Taking into account all the circumstances and the proposal made by Inspector Fyfe we do not think it was reasonable to expect the Respondent to grant disability leave.

[447]The next adjustment proposed is allowing the Claimant to take appointments during duty time. If by that the Claimant means during her ordinary contractual hours then she was permitted to do that. It was proposed that she attended her appointment in the 4 hours of ‘recoupment time’. Allowing the Claimant to take time off the hours she was meant to be working is exactly the same as granting her disability leave and for the reasons we give above we do not consider it a reasonable adjustment.

[448]Finally the Claimant proposes that it would have been reasonable for her to have worked at Bow. We accept the evidence of the Respondent that the Bow Centre was closed for the purpose of installing IT equipment. It was anticipated that there would be disruption to the utilities and no computers would be available for use by the Claimant. The Claimant does not accept this but had no evidence to explain why. We find that this adjustment would not have been reasonable. Allegation 15 – Advising CI Wright that the Claimant’s application for a role of Duty Officer was not supported

[449]This is an allegation of victimisation that is made against CI Brown alone.

[450]Whilst we have found that it made no difference to the question of the Claimant’s application progressing we would accept that the Claimant could be disappointed that her application was not supported by CI Brown.

[451]We have already said in respect of earlier instances that the Claimant has proven facts from which victimisation might be inferred. At this point the Claimant had brought a grievance naming CI Brown and suggesting he had acted unlawfully. That needs to be added to the matters we have already identified. We find that the burden shifts to the Respondent and it is for CI Brown to satisfy us that his reasons for not supporting the Claimant’s application were nothing whatsoever to do with her protected acts.

[452]CI Brown says that his comments on the Claimant’s form and his decision that her application was not supported reflect his genuine assessment of her application. His assessment is supported by the later assessment of the panel. It also accords with our own assessment of the strength of the Claimant’s application measured against the MPS Framework. We find that CI Brown’s assessment is objectively fair. The issue is whether that assessment was tainted in any way by the protected acts. We note than in the assessment there are some positives noted. There is encouragement given for future applications.

[453]We have come to the conclusion that the fact that the Claimant had done protected acts played no part in CI Brown’s assessment and his decision not to Allegation 17 – Hostile and intrusive questioning by Inspector Fyfe

[454]The Claimant says that questioning by Inspector Fyfe on 13 December 2019 was hostile and intrusive. In our findings of fact we have rejected the Claimant’s account of any conversation in a corridor. We find it did not happen. The e-mail correspondence on this issue is in no sense hostile and intrusive. It does convey a minor misunderstanding by Inspector but that is far short of what the Claimant has claimed. It would not amount to a detriment. Accordingly the Claimant has not established the factual basis for this claim. Allegation 18 - Being Excluded from Tracy Mostyn’s staff Wellbeing scheme/meetings

[455]The Claimant brings claims of Victimisation and Harassment. Her claims are directed towards Inspector Fyfe, Shabbir Ali, CI Brown and Commander Jackson.

[456]There was no dispute that the Claimant was not included in the program commenced by Tracy Mostyn. We accept that amounted to a detriment. One matter that the Claimant missed out on was learning that she was entitled to premium payments whilst shielding. There was only a short delay in her learning about this but sufficient to regard this as a detriment.

[457]There was no evidence at all that CI Brown and Commander Jackson knew anything about whether the Claimant had been contacted by Tracy Mostyn. We do not think that the Claimant could have any reasonable expectation that they would get personally involved.

[458]We shall turn to the question of why the Claimant was not contacted. We have set out above the explanation that was given by Tracy Mostyn. For the purposes of the victimisation claim we shall consider whether the Claimant has proven facts that might shift the burden of proof in respect of the actions of Tracy Mostyn. The Claimant does not say she ever met Tracy Mostyn. She simply assumes that she must know of her protected acts. The Claimant has not produced any evidence of this other than her subjective belief that there is a collective move to treat her badly. There is no evidence that Tracy Mostyn knew anything about the Claimant. There is in our view no basis for finding that Tracy Mostyn victimised the Claimant or that for the purposes of a harassment claim she acted with the purpose of creating the proscribed environment.

[459]The Claimant speculates that her name was not given to Tracy Mostyn by we assume Inspector Fyfe or Shabbir Alli. The Claimant says, and we accept that Inspector Fyfe alerted another individual to the existence of the scheme. There is no evidence for any suggestion that the Claimant’s name was deliberately withheld.

[460]We accept the explanation given by Tracy Mostyn. She was faced with a difficult task of contacting around 250 individuals who were shielding. She explains why she did not ever manage to complete that task. We find that that explanation fully explains why the Claimant was not contacted.

[461]We find that the reasons for the treatment complained of were those explained by Tracy Mostyn and had nothing to do with any protected act. The Claim of victimisation therefore fail as against all of the named individuals.

[462]Looking at the same allegation as an allegation of harassment we would accept that there has been unwanted conduct. We will assume in the Claimant’s favour that she perceived this as harassment. That leaves the question of whether being left out of a wellbeing group is something that in all the surrounding circumstances a reasonable person would regard as creating the proscribed environment. We consider that no reasonable person looking at the matter from the Claimant’s viewpoint would have regarded this omission as having the effect of creating the proscribed environment. It follows that the harassment claim fails in respect of each maned individual. Allegation 19 – Failing to keep in touch with the Claimant during her shielding period

[463]This is said to be victimisation. Claim was originally brought against three individuals Shabbir Alli, Inspector Fyfe and Tracy Mostyn We understand the inclusion of Tracy Mostyn related only to Allegation 18 which we have dismissed. The claim against Shabbir Alli has been withdrawn. We assume that is in the light of the evidence of the number of times that he did contact the Claimant. That leaves Inspector Fyfe. We have set out our findings about how often he personally contacted the Claimant above. There were only a few occasions. As such one aspect of the factual basis has been made out. Inspector Fyfe did not contact the Claimant on a regular basis whilst she was shielding. We have recorded above that the Claimant did not contact Inspector Fyfe either. She could have done so if she had wanted to. That does call into the question the issue of whether this was a detriment. We shall not deal with this allegation on that basis and shall assume that the Claimant would have welcomed contact.

[464]This is a matter where wherever the burden of proof lies we are able to go straight to the reasons for the treatment. The reasons are that Inspector Fyfe was shielding and was doing project work. He delegated his role as Duty Officer to Shabbir Alli and Sham Patel. They dealt with staffing matters on his behalf. That did not simply apply to the Claimant it applied to all staff. Those reasons have nothing to do with the fact that the Claimant did any protected acts. Accordingly the victimisation claim must fail. Allegation 20- Taking CCTV images of the Claimant

[465]Whilst the Claimant refers in the list of issues to this as a complaint that arose in 2020 that is when she learned of the fact that Lisa Wingrove had taken stills from CCTV footage and not when the action actually took place. The claim was originally levelled against Inspector Inglis, CI Brown, Inspector Young and Commander Jackson as well as Lisa Wingrove. Claims against those other individuals have been withdrawn. It is difficult to see how they might ever have been made out on the evidence.

[466]The claims are victimisation and harassment related to disability. We shall deal with each claim. Victimisation

[467]We are satisfied that being investigated and that investigation taking the form of making stills from CCTV is something that might reasonably be considered a disadvantage.

[468]The actions of Lisa Wingrove in making the CCTV stills are recorded by the First Tribunal – see paragraphs 51 and 52. The relevant date was 24 July 2018. There is only one protected act that predate the event. An e-mail sent in 2017. There is no evidence at all that Lisa Wingrove knew about that at the time. She does not say that she did and the Claimant has not given any evidence that would suggest that Lisa Wingrove knew about Protected Act 1. On that basis the claim could not succeed.

[469]If we have made any error about this then we are entirely satisfied that the only reason for the treatment was that given by Lisa Wingrove. She suspected that the Claimant was misusing a team parking ticket. She obtained the CCTV stills for the purpose of demonstrating that. We find that those were her only reasons for this particular action. It follows that even if Lisa Wingrove had known of protected act 1 the claim would fail in any event. Harassment

[470]We accept that being investigated via CCTV footage being watched and stills taken was unwanted conduct. We further accept that as the Claimant wished to use the team parking pass because she had disabilities that made it difficult for her to use public transport the conduct did relate to disability.

[471]We adopt the finding that we have made above as to the reason or purpose of the actions of Lisa Wingrove. They were to investigate the misuse of a pass. We find that the purpose was not to create the proscribed environment.

[472]We accept that the Claimant would view this as hostile. The surrounding circumstances include the fact that Lisa Wingrove loathed the Claimant (and vice versa). The issue is whether she could reasonably regard Lisa Wingrove’s actions as having the proscribed effect.

[473]We consider the whole purpose of CCTV in the workplace is to facilitate the investigation of wrongdoing either by employees or third parties. Where there is a reasonable basis for suspecting wrongdoing a reasonable employee would recognise that and would not regard viewing or preserving the CCTV images as harassment. We find that objectively there was a reasonable basis to believe that the Claimant was using the team parking pass improperly. She was using it to do overtime. In the circumstances we have concluded that whilst the Claimant might be reasonably displeased about being investigated she could not reasonably regard that as creating the proscribed environment. To do so would be to ‘cheapen the words used in the statute’. Allegation 21- Not being notified about Deputy Duty Officer vacancies

[474]There is no dispute that the Claimant was not told of a competition for Deputy Duty Officer roles until the deadline for applications had passed. This was a shocking omission and one which the Claimant can rightly feel very angry about. She had been pushing for promotion for some time and this omission pushed back her chances for a full year for this role.

[475]The Claimant says that this was an act of victimisation by Shabbir Alli and Inspector Fyfe.

[476]We have no hesitation concluding that the burden of showing that this was not an act of victimisation falls on the Respondent. The omission itself would be sufficient to shift the burden but we have regard to all evidence in concluding that the Claimant has established facts from which we could infer victimisation.

[477]The explanation we have from Inspector Fyfe is that he delegated the job of disseminating news of the vacancies to Shabbir Alli. The explanation given by Shabbir Alli is that he overlooked sending the information to all those who were shielding. If that is correct and the information was not sent out to a whole group of people then that would substantially undermine the suggestion that the Claimant was targeted. Much depends on whether we accept Shabbir Alli’s evidence on that point. We found Shabbir Alli to be a straightforward witness. He was prepared to accept fault in relation to this matter before it became an issue in the proceedings.

[478]We have concluded that we accept the Inspector Fyfe that he delegated this task. As such we do not consider that he is responsible for this omission. We accept the evidence of Shabbir Alli that he did not send notification of the vacancies to those who were shielding. We accept that this was something he simply overlooked. We take the view that this was very poor but we accept the evidence that it was a mistake rather than conduct targeted at the Claimant. The explanation we have accepted has nothing whatsoever to do with any protected act. Allegation 22 – Requiring the Claimant to return to work – without a BAME risk assessment

[479]Our findings of fact about this show that the Claimant is wrong to think that her ethnicity was not taken into account when the Respondent’s OH team caried out a Covid risk assessment. That finding is fatal to the reasonable adjustment claim (which in any event would have faced difficulties). It is also fatal to the parts of the victimisation claim that rely on there being no risk assessment.

[480]The balance of the complaint complains that the decision to ask the Claimant to come back to work was victimisation by Inspector Fyfe and Shabbir Alli.

[481]We accept that the Claimant reasonably viewed coming back to work in an office as a detriment. Many people were very scared at this time and the Claimant did have a heightened vulnerability to Covid.

[482]In our findings above we have found that the decisions about a return to work were being taken at a senior level within MetCC. Those in charge were attempting to follow government guidance. That guidance distinguished between those who were clinically vulnerable and those who were clinically exceptionally vulnerable. A decision was taken to bring all those who were not clinically exceptionally vulnerable back to the office. The Claimant was not believed to be in that category and had produced no evidence since to say she ever was.

[483]There is no reason to refer to the burden of proof. We are satisfied that neither Shabbir Alli nor Inspector Fyfe did anything other than convey decisions. We have no evidence that those individuals who did make the decisions knew or cared about any protected act. We shall assume that they did. However, we are satisfied that the reason that the Claimant was instructed to return to work was that the OH report that had been obtained did not suggest she was Clinically Exceptionally vulnerable and on that basis she was required to return to the office. That reason applied to around 250 other people and had nothing whatsoever to do with any protected act. Allegation 25 – ‘being on holiday’

[484]The Claimant has not proven that the facts underlying this allegation are made out. We are not satisfied that Sarah Hartwell used this phrase. As such the claim cannot succeed. Allegation 30 – being asked to ‘work the floor’

[485]As we have indicated above this allegation overlaps considerably if not completely with allegation 22. The substance of the Claimant’s complaint is being made to work in an office that she did not feel was covid secure. We accept those fears were not unjustified. The Claim is one of victimisation and it is levelled against a long list of individuals. For the Claim to succeed we would have to find that the reason for the treatment was the Claimant’s protected acts. As we have said above some 250 people in the same position as the Claimant were instructed to come in to work.

[486]For the same reasons as we have set out in respect of allegation 22 we find that the reason for the treatment had nothing to do with protected acts. The reason was that the Claimant was not believed to be Clinically Exceptionally vulnerable. Reasonable Adjustment Claim 7 being asked to return to work

[487]Part of this claim relies on the assertion that no BAME risk assessment was undertaken. That is incorrect. The Claimant’s OH assessment included factors of ethnicity.

[488]The PCP that the Claimant relies upon is being asked to return to the office. We accept that that was the policy that was applied to the Claimant. We would further accept that the Claimant was placed at a substantial disadvantage in comparison to those without a disability. The Claimant’s disabilities increased her vulnerability to Covid. In addition her anxiety increased her concerns about this.

[489]The reasonable adjustment contended for was allowing the Claimant to work from home.

[490]We have set out above that there was no possibility of the Claimant doing her existing work from home. She was in broadly the same position as 250 other people across MetCC. Her occupational health assessment suggested that she was fit for work subject to Covid security. That was in line with the prevailing government guidance. If the Respondent had been persuaded by the Claimant’s arguments there was a real risk that the other clinically vulnerable people would ask for similar accommodation.

[491]We accept that there was an acute shortage of laptops at this time. We also accept that within MetCC there was a shortage of useful work that could be done from home. We find that in the circumstances it was not reasonable to make the adjustment contended for by the Claimant. Reasonable Adjustment 8 – use of the reading room

[492]The Claimant identifies PCPs of working in the office or main room in the office. We accept that those were applied to the Claimant from on 10 September 2020.

[493]The Claimant says that working in those rooms put her at a substantial disadvantage. We have accepted above that working in the office at all put the Claimant under a substantial disadvantage in comparison to persons who were not disabled – many of whom would have no special vulnerability to covid.

[494]We have dealt with the suggestion that allowing the Claimant to work from home would be a reasonable adjustment. We find that it was not.

[495]The next adjustment contended for is that the Claimant was allowed to work in a separate office. We do not accept that working in a separate office would put the Claimant in any better position than working at one of the pods that had been very sensibly set up for social distancing. That is what the Claimant was directed to do. The Claimant has not identified any separate office where she might have worked. We have come to the conclusion that the Respondent had done all that it could reasonably do to make the workplace Covid secure. The fact that another employee with very similar needs to the Claimant had already been allocated a space does not change that. We are entitled to have regard to the resources available once a resource is allocated to an employee there is less to go around for everybody else. That is factored in to our decision that it was not reasonable to allocate the Claimant a particular space. Reasonable Adjustment 9 – requiring the Claimant to work the floor.

[496]This is essentially just a repeat of the two allegations above. We do not thin that it was reasonable to expect the Respondent to permit the Claimant to work from home for the reasons already given. Nor was it reasonable to put in place an adjustment that the Claimant was not working in the main office. The building was reasonably secure. The Respondent had taken all the steps it could reasonably have been expected to do. Allegation 31 – hostile and angry looks

[497]In our findings of fact set out above we have found that the Claimant has not proven on the balance of probabilities that the treatment she relies upon actually occurred. This is fatal to these claims whether put as Harassment related to disability of as claims of victimisation. Allegation 32 – Advising the Claimants that there were no laptops for agile working

[498]In our findings of fact set out above we have set out why Sham Patel informed the Claimant of this. He did so relying on what he had been told by Superintendent Warby. It was not entirely correct to say that there were no laptops available. There were a few but those people who were Clinically Extremely Vulnerable were being prioritised. There were no laptops allocated or generally available for somebody in the Claimant’s position.

[499]The Claim is brought as one of victimisation. We would accept that not being allowed to work at home with a laptop was a detriment. The issue is then the reason for the treatment.

[500]The reason for the treatment is straightforward and the reasons do not relate only to the Claimant. A decision had been made to prioritise the Clinically Extremely Vulnerable and there were insufficient laptops and work even for those individuals. This meant that it was believed that there was no MetCC work that could usefully be done.

[501]The Claimant has suggested that if people had looked outside MetCC then there was work that might be done. Ultimately she was right that there were some roles like the one she was ultimately offered as an exception. However, there was a justified concern that if one of the 250 people in the same position was accommodated and the others were not that would be unfair.

[502]The reasons for the Claimant’s treatment were not personal to her. They had nothing whatsoever to do with any protected act. Allegation 34 – telling the Claimant she would be treated the same as any other staff member

[503]There is no dispute about the wording of Sham Patel’s e-mail of 19 January. The Claimant says that the terms of that e-mail amount to Victimisation and Harassment related to disability.

[504]We would accept that from the Claimant’s perspective being told that she was going to be treated the same as any other staff member is a detriment. The Claimant read that as meaning that she would be treated the same as a person without her disabilities. The e-mail is poorly worded. We find that what it actually says is that the Claimant would be treated the same as any other person who is Clinically Vulnerable but not Clinically Exceptionally Vulnerable. The e-mail went on to explain that. It explained that those in the Clinically Exceptionally Vulnerable category were being prioritised. The Claimant was told that the reasonable adjustments recommended by OH would be implemented save for working at home on a laptop on occasions.

[505]The Claimant quite rightly in our view saw that the Respondent’s policy meant that people with disabilities who could not work in the office but who were not CEV were not being given adjustments whereas those who were CEV who may or may not be disabled were allowed to work at home. She understandably saw this as one group being prioritised over another. She is correct. The CEV people were prioritised.

[506]For these reasons we agree with the Claimant that she was subjected to a detriment and unwanted treatment.

[507]We shall start with the Harassment claim. We would accept that for the Claimant being told that she was not being prioritised was something she subjectively considered was hostile and offensive.

[508]We turn to the question of whether it was reasonable for the conduct complained of to have the effect of creating the proscribed environment. A reasonable employee would have regard not only to their own circumstances but also to the circumstances of others. The Claimant was being told that all the available resources of roles and laptops were being prioritised on those who were CEV. That is in no sense offensive to disabled people in general or the Claimant in particular. The Claimant had not been told that she could do no work in the office. The suggestion of OH was that she spend some time working from home. The suggestion from her GP is that her symptoms were better managed from home. However, he believed that the Claimant was already working from home. The Claimant ought to have understood the reason for the Respondent’s decisions as they were fully explained to her.

[509]When we have regard to all the circumstances we have come to the conclusion that the Claimant could not reasonably regard the stance taken by the Respondents as having the effect of creating the proscribed environment.

[510]In respect of the Victimisation claim we shall move directly to the reason for the treatment. The reasons are those set out in the e-mail to the Claimant. She was not CEV and that group were being prioritised for the few available laptops and roles that might usefully be done from home. Those reasons are nothing whatsoever to do with the fact that the Claimant had done any protected act. Because of that the claim cannot succeed. Reasonable Adjustment Claims 11, 12 and 13

[511]These claims overlap so substantially that we shall deal with them together.

[512]The PCP relied upon is the requirement to work from the office and the reasonable adjustment contended for is allowing the Claimant to work from home. The three instances that gave rise to the claims are just examples of the Claimant being subjected to the PCP.

[513]We have accepted in relation to the Claimant’s work during September to 4 November 2020 that she was placed at a substantial disadvantage compared to people without a disability. The reason for this is that people without a disability are less likely to be clinically vulnerable to covid or to be anxious. By January the Claimant’s anxiety appears to have been a much greater factor in her inability to attend the office.

[514]We consider that the objection taken by the Claimant to the decision to prioritise the CEV group has some real force in the context of a claim that it is reasonable to make reasonable adjustments. By January it should have been reasonably clear to the Respondent that the Claimant would struggle if she attended the office. This was predominantly because of her anxiety. The Covid pandemic did not suspend the requirements to make reasonable adjustments. If there was no laptop or work available for a person who was CEV then that person would not be treated as being on sick leave but would be paid. The Claimant was told that if she could not work in the office she needed to take sick leave. There was a clear disparity of treatment between those unable to come in to work because they needed an adjustment for disabilities and those who were CEV who could not come in to work for that reason.

[515]We think that the Respondent’s stance failed to recognise that for reasons of other disabilities the Claimant faced the same practical disadvantage as those who were CEV. We do not think that it was reasonable for the Respondent to draw the distinction that they did.

[516]That is not to say that the Respondent could have or should have immediately provided the Claimant with a laptop and work to do. There was an acute shortage of both. We find that it would have been reasonable to have treated the Claimant the same as those who were CEV. That would, in effect, mean that she joined the others on a waiting list for a laptop and a role. We find that if the Claimant had had to wait in line along with the others then it would have been some months before she was provided with work.

[517]In fact ultimately the Claimant did not have to wait in line. A role was identified and a laptop secured as a special concession to her. We find that, mor by luck than judgment, the Respondent made what was a reasonable adjustment within a reasonable time. It was simply unrealistic to expect the Respondent to do any more than it managed to do. We should say that had the Respondent not made an exception for the Claimant we would have found this claim made out. Allegation 37 the lack of a commendation/recognition

[518]This is a further instance where we can understand why the Claimant has become distrustful of the Respondent. She was given a clear indication that she would receive some recognition for her efforts on the night of the incident at the Finsbury Park Mosque but despite years of chasing this up she was ultimately told that she was not on any list for an award of any sort. Quite obviously she could regard this as a detriment. She has named AC Ball and Commander Jackson as being responsible.

[519]There is no direct evidence that either of these two individuals took the Claimant off any list or took any steps at all to ensure she did not get an award. The Claimant’s case relies upon inviting us to draw an inference of their involvement because they were ultimately responsible. We are not in a position from the correspondence we have seen to draw any inference that they took any steps to thwart the Claimant’s award. Clearly something went wrong somewhere but we do not know who was responsible. Without understanding that we are left with what might be victimisation or what might be a bureaucratic bungle. The later correspondence does suggest that those dealing with the awards at a later stage had no knowledge of anybody nominated at MetCC.

[520]We find that in this instance the facts that we have found proven above in relation to this specific allegation or indeed in general are insufficient for us to infer that the reason for the treatment was victimisation. The Claimant has not discharged the initial burden of proof in this particular respect. That is a fortunate conclusion for the Respondent because there really was no explanation forthcoming to explain the treatment. However it follows that the Claimant has failed to establish this claim. An apology

[521]The Tribunal concluded its deliberations and reduced its reasons to note form on the last day of the hearing shown above. It has taken me, the Employment judge, many months to find the time to complete the task of writing up these reasons. Whilst I have tried to inform the parties of progress I have indicated a few false dawns.

[522]I do understand how anxious the parties must have been. I am very sorry that they have had to wait. I am particularly sorry that this is the second judgment that the Claimant has had to wait for.