Mrs T Moffat v London Borough of Tower Hamlets: 3204640/2022
EMPLOYMENT TRIBUNALS
Case No 3204640/2022
Between
Mrs T MoffatClaimantLondon Borough of Tower HamletsRespondent
Before
Employment Judge Gardiner
Members
Ms J HenryIn person for claimantMr J Davies (instructed by counsel) for respondentDate 19 June 2024
JUDGMENT
The judgment of the Tribunal is that:- None of the Claimant’s complaints are well founded. They are accordingly dismissed. JUDGMENT was sent to the parties on 25 June 2024. The Claimant has requested written reasons.
REASONS
[1]The Claimant complains about the way she was treated in the course of an administrative role she was performing for the Respondent, the London Borough of Tower Hamlets. The engagement started on 8 March 2021 and ended in July 2022. Proceedings were issued the following month. A case management hearing was held in January 2023.[2]At this Final Hearing, the Claimant has represented herself, although had been legal represented at the case management hearing. The Respondent was represented by Mr Davies of counsel. In summary, the Claimant alleges she has suffered direct race discrimination alternatively harassment; victimisation for doing a protected act; detriment for making a protected disclosure; and that the conclusion of her engagement amounted to automatically unfair dismissal on the ground she had made a protected disclosure. The individual allegations were listed in a list of issues prepared by Mr Davies at the Tribunal’s request, as amended in discussion with the Tribunal at the start of the second day of evidence. That list was agreed by the parties. The issues are set out in bold and italics below in the Conclusion section.[3]The Claimant had requested at the outset of the Final Hearing that two further alleged protected disclosures should be added to the issues that the Tribunal had to decide as well as allegations regarding the treatment she had experienced from one of her colleagues, Amanda Osborne. For reasons given orally, the Tribunal rejected this request. These particular legal complaints were not sufficiently identified in the original claim as was set out in the original Claim Form. It was not in accordance with the overriding objective for these matters to be added by way of amendment. This would have potentially necessitated a postponement to enable further disclosure and further witnesses to be called to give evidence. There was no request for written reasons of the Tribunal’s decision on this point.[4]The Tribunal has heard evidence from the Claimant herself and from Mr Kelvin Malcolm, who was the Claimant’s line manager at the time of the events of which she complains. No other witnesses were called by the Respondent. In particular, they did not call the individuals who (apart from Mr Malcolm) were alleged to have engaged in detrimental treatment. They did not call Mr Williams who was Mr Malcolm’s manager throughout the period with which we are concerned. A witness statement had been exchanged from Michael Darby who conducted the Claimant’s grievance. That potential witness was not called to give evidence. Therefore, we have not considered his witness statement.[5]Reference was made to an agreed bundle of documents comprising 482 pages. Particular pages were referred to in the witness statements. The Tribunal was taken to further documents during the course of cross examination or in closing submissions. Both parties made oral closing submissions. In addition, Mr Davies, Counsel for the Respondent, had prepared a Chronology and Reading List and a Skeleton Argument. These documents were sent to the Tribunal on the first day of the hearing. The Claimant prepared a useful Cast List which she exhibited to her witness statement. Factual findings[6]The Claimant was engaged as an Administrative Officer starting on 8 March 2021. She was described as an agency worker hired by “ITRES/Kelvin Malcolm”. ITRES stands for “In house Temporary Resourcing”. It is a division within the Respondent rather than a separate legal entity. Kelvin Malcolm was the Passenger Services Manager within the Respondent’s Communities Directorate.[7]The Claimant was engaged by the Respondent. Although the Claimant has been described as an agency worker, the initial paperwork was provided to her directly by the Respondent. She received pay each month paid directly by the Respondent. The monthly payslip was headed with the Respondent’s logo. It said that pay advice queries should be directed to the payroll office of the London Borough of Tower Hamlets at its main address. At the end of the tax years 2020/21 and 2021/22, the Claimant received a P60 which described her employer as London Borough of Tower Hamlets.[8]The arrangement operated in this way. The Claimant submitted timesheets for the hours she worked. The assignment schedule recorded that she was to work 36 hours a week. Her hourly rate reflected rates agreed by the National Joint Council for Local Government Services. She was initially paid every four weeks for the hours she had worked in the previous four-week period. She received rolled up holiday pay.[9]Mr Malcolm was responsible for managing the Respondent’s transport service. This provides home to school transport for special needs children and social care, as well as transport for adults going to college or day centres. This service was provided throughout the Borough from two different depots. These were the Blackwall depot in Canning Town and the Toby Lane depot in Mile End.[10]The Claimant was based at the Blackwall depot. She never worked from Toby Lane, although occasionally worked from home. Her role was to carry out general admin duties. She had not been provided with a job description. Part of her role was to liaise with the drivers and the Passenger Assistants for those school transport routes operated from this depot. The two Passenger Assistants who were based at the Blackwall depot were Rizwanaah Boksh and Hasna Begum. Both were of Bengali nationality. The drivers and Passenger Assistants reported to Route Managers. Two Route Managers, based at Blackwall depot, were Sheba Khanom (for part of the time) and Charmaine Lilly-White. Ms Khanom is of Bengali national origin. Another Route Manager, Amanda Osborne, was based at the Toby Lane depot. For a temporary period in September 2021, Rizwanaah Boksh was a temporary Route Manager based at Blackwall. From 1 March 2022, she moved to Toby Lane. A further member of staff who was based at Blackwall for some of the time was Marshall Savage. His role at one point was Temporary Route Manager.[11]Also working with the Claimant on administrative matters were Azeemah Akhtar and Reshma Begum. Both were of Bengali nationality and their first language was Bengali. A further individual working at the Blackwall depot was Fatima Khatun (Contracts and Monitoring Officer), who was also of Bengali nationality.[12]The Claimant’s line manager was Kelvin Malcolm who in turn was line managed by Richard Williams, Business Manager.[13]During the time period with which we are concerned, there was a high level of staff sickness absence and turnover. This at times required staff to cover the roles allocated to others. The Claimant herself was on occasions expected to take on other duties, including at times some of the duties of the Route Manager role.[14]Of the staff based at the Blackwall depot, all apart from the Claimant, Charmaine Lilly-White, and Azeemah Akhtar were fluent Bengali speakers. Ms Akhtar had some Bengali. So did Mr Savage. The Respondent’s staff needed to speak in Bengali if discussing children’s transport arrangements with their parents where Bengali was their first language. Bengali was potentially also the first language of some of the drivers.[15]Because of the position of the Claimant’s desk, near the front door of the office, the Claimant would often be the first member of staff that drivers and passenger assistants would see when they arrived at the office. She developed good working relationships with some of the drivers.[16]The need for passenger transport services was significantly greater in term time than in school holidays. During half term weeks and school holidays, on occasions the Respondent would close either the Blackwall depot or the Toby Lane depot. The decision as to which depot to close would depend on the location of the children and adults that needed to be transported. If they lived closer to one depot than the other, the Respondent would operate all of its passenger transport services out of the particular depot that was closest to their locations.[17]The Claimant’s standard working hours were 9.30am to 5.30pm. At the start of June 2021, some of the staff based at the Blackwall depot were keen to leave the shift earlier than the time when the Claimant was expecting to leave. They persuaded her to leave early on 1 June 2021. The following morning, she received a message from Fatima Khatun at 07:24 which read “Good morning, Tracey apologies for bothering you so early in the morning. Sheba asked [me] to ask you to come in around 8ish so we can all leave early again”. The Claimant’s response was “Morning Fatima – am coming in my normal time at 9.30am. No problem if you all leave earlier than me”.[18]On 3 June 2021, the Claimant tried to show Mr Malcolm the message she had been sent by Fatima Khatun the previous day, which had asked her to come in early so everyone could leave early. Mr Malcolm chose not to read the message. It was evident to the other members of staff that the Claimant had tried to report to Mr Malcolm the hours that her colleagues were choosing to work. On the Claimant’s own account, as set out in her witness statement, from this point onwards she started to be excluded, ostracised, and victimised by Sheba Khanom and Fatima Khatun.[19]During the school summer holidays starting in July 2021, Sheba Khanom and Fatima Khatun were working from home because they needed to provide childcare for their school age children. As a result, they were not in the office and so would not present so as to exclude the Claimant from any discussions about work-related matters.[20]Before the new school term started in September 2021, several Route Managers and other staff were absent on sick leave. As a result, by the start of term, the new routes for that term had not been planned. This caused significant difficulties in getting the children to school in time for the start of their school day. The Claimant and Ms Akhtar covered for these absent colleagues as well as communicating with parents and with the other staff who were providing the transport services. This was a stressful time for the Claimant. The Tribunal accepts the Claimant’s characterisation of the situation as “chaos”.[21]When the Route Managers returned from sick leave, they took back their regular responsibilities. The Claimant was no longer informed of the aspects of their roles that she had been managing in their absence. She was frustrated that she was no longer being provided with this information. This was a source of tension within the team. This was not information she needed to know to carry out her administrative role.[22]During the period from their return until late November 2021, there were occasions when those based at the Blackwall depot would speak to each other in Bengali during the working day. It is likely that these conversations would be about work issues as well as of a social nature. The Tribunal is unable to make any findings about whether these conversations concerned topics that the Claimant needed to know about in the course of her administrative role. Our difficulty making findings on this issue is compounded by the lack of any job description for the Claimant and for those performing the role of Route Manager, as well as the fact that these conversations were taking place in Bengali. The precise topics of these workrelated conversations are wholly unclear. We accept that the Claimant assumed that the details of their conversations did extend to matters that she needed to know about in order to perform her duties. We cannot make any findings as to whether this was a correct assumption. At this stage, none of the staff had been told that they were to speak in English when discussing work issues with their colleagues during working hours. No instruction had been that staff should speak only in English whilst working in the depots.[23]On 24 November 2021, Mr Malcolm sent an agenda for a meeting scheduled to take place in two days’ time. The focus of the meeting was to be on the lack of trust and the fear of conflict that had apparently developed within the team by that point. The agenda prompted the Claimant to send a two-page email to Mr Malcolm and Mr Williams setting out her side of the story in relation to the breakdown in her working relationships with her colleagues. It is evident from this email that there was a very poor working relationship between the members of staff in the team. The Claimant asked if her role could be rebranded as ‘operational support’. This was an attempt to be allocated additional responsibilities. In her email, she accepted that this rebranding would not mean she would be a Route Manager nor would she second guess Route Manager decisions.[24]Both Mr Williams and Mr Malcolm responded to her email. Mr Williams apologised for how she was feeling and said that it was a priority to improve the working across the whole team. Mr Malcolm said that if there was any conduct that had particularly directly upset her, she should look up the grievance policy on the intranet.[25]On 26 November 2021, a meeting took place over Teams. In attendance were Ms Akhtar, Ms Bokch, Ms Khatun, Mr Savage and the Claimant as well as Mr Malcolm and Mr Williams. The Claimant raised her concern that Bengali was being spoken between those working in the office when discussing work issues. She said that this excluded her; and that she considered it wrong. Mr Malcolm agreed that it was inappropriate for staff to be speaking to each other in Bengali, telling them to be respectful of everyone else because it could come across as excluding others. This was clearly a memorable part of the meeting. When asked about it in the grievance ten months later, those present could recall that the discussion prompted a fractious exchange between the Claimant and Sheba Khanum.[26]The Claimant chose to follow up on this issue in an email she sent at the end of that day titled “Speaking Bengali in the Office” [88]. The email was sent to Mr Malcolm, Mr Williams and those team members based at the Blackwall depot. In the email she said: “Dear all Just to finish what I wanted to say in the meeting today before I was interrupted. I appreciate that we live in a multi cultural society and embrace everything that comes with it. I recognise it is an asset that we have Bengali speakers in the department but speaking Bengali to one another (between colleagues) when I am the only non-Bengali speaker in the office makes me feel ostracised and is simply rude. I know we spoke about this in the meeting but I did not feel it was properly addressed because I did not have the opportunity to explain in what context Bengali was being spoken. I will make a formal complaint if this happen again.”[27]In late January 2022, during a Teams meeting, Rizwaanah Boksh said that the Claimant had moved the keys to one of the large vehicles used for passenger transport. The Claimant interpreted this comment as an accusation that she had hidden the keys and became upset and angry. We do not accept the Claimant’s evidence that the word “hid” was used by Ms Boksh.[28]At the same meeting, as Mr Malcolm accepted, Ms Osborne made a comment that drivers would tell anyone who listened their sob stories. She was complaining that drivers were raising their concerns with the Claimant rather than with her or the other Route Managers. The Claimant was upset that she was being criticised in this way.[29]On 9 February 2022, the Claimant started to keep a log of incidents to assist her in raising these matters with the Respondent. She had been encouraged to do so, having spoken to her trade union. The dates of the entries in the log spanned the period from 9 February 2022 to 31 May 2022.[30]The Claimant has documented four occasions on 10 February 2022 when she noted that either Sheba Khanom or Rizwaanah Boksh were speaking in Bengali. Two of these four incidents were telephone calls where it is unclear who was on the other end of the phone line. These calls could well have been conversations with parents or other stakeholders for whom Bengali was their first language and their English was limited. The first incident is said to have been a conversation with a driver which took place partly in Bengali and partly in English. It is not clear whether the part of the conversation that took place in Bengali concerned work-related issues and specifically was relevant to the Claimant’s role, rather than the role performed by one of the Route Managers. So far as the final incident on this date was concerned, this was a conversation between Sheba Khanom and Rizwaanah Boksh at 3.59pm, potentially towards the end of the working day. It is unclear whether the topics of conversation discussed had anything to do with work, let alone the Claimant’s work responsibilities.[31]From 13 to 17 February 2022, the Blackwall depot was closed. This was because it was the school half term holiday. The Claimant was encouraged to work from Toby Lane. She chose not to work during this week but was paid for her normal hours in any event.[32]On 21 February 2022, the Claimant wrote a lengthy email to Juli Browne, Supported Employment Manager [132]. The subject of the email was “Being targeted at work”. It raised various matters where the Claimant was dissatisfied with her work. By way of headline summary, it complained that she was being targeted by Route Managers who wished to drive her out of her role. This included a complaint that they were speaking Bengali in the office. She referred to a Teams meeting on 28 January 2022 when she had been unjustly accused by Rizwanaah Boksh of hiding the keys to a vehicle. She said that Rizwanaah Boksh would rudely interrupt her when she was attempting to answer a question by a visitor to the office. She complained about the lack of a job description. She said she had started to keep a log of all incidents as she had been advised to do by her GMB representative. She asked for Ms Browne’s help and guidance. On the same day, she sent a very similar email to Mr Malcolm and Mr Williams [135]. Neither email was expressed to be a grievance.[33]The emails included the following sentences: “Round sheets with the driver, passenger assistants, and vehicle registrations are not being kept up to date by the route managers and the ‘live board’ I created is also not being updated daily. This makes it difficult when I am trying to ascertain information when querying a penalty charge notice or ensure that defect sheets are in order” [132][34]These particular sentences are alleged to be a protected disclosure.[35]Ms Browne responded by offering the Claimant a meeting. During the meeting, Ms Browne suggested that the Claimant could formalise her concerns as a grievance. After the conclusion of the meeting, she sent the Claimant a copy of the grievance policy. She indicated that the next step under the policy was an offer of mediation, which was optional.[36]On 28 February 2022, the Claimant submitted a formal grievance. The details of the grievance were similar to the complaints made in the emails of 21 February 2022. The equivalent passage to that in the earlier email was worded as follows: “Daly [sic] Rota sheets with the driver, passenger assistant and vehicle registrations are not being kept up to date and the ‘live board’ I created is also not being updated daily. This makes it difficult when I am trying to ascertain information when querying a penalty charge notice or ensuring that defect sheets are in order” [143][37]At about 10.30am on 1 March 2022 there was an incident at the Blackwall depot involving the Claimant and Rizwaanah Boksh. Both attempted to collect a set of keys at the same time to give to a driver. The Claimant regarded Rizwaanah Boksh’s conduct as rude and disrespectful. She challenged Rizwaanah Boksh. She subsequently accepted that the way she behaved was “assertive”. This incident was drawn to Mr Malcolm’s attention. As a result of the incident, Rizwaanah Boksh transferred to Toby Lane and did not return to work at the Blackwall depot.[38]At 19:15 on the same day, prompted by this incident, Mr Malcolm wrote a group email to the staff who were based at the Blackwall depot and the Toby Lane depot. These included the Route Managers [148]. He wrote that “the behaviours that continue to be displayed are a real cause for concern. The office environment has become extremely toxic with multiple personality clashes, the reluctance to move on from resolved issues and a lack of emotional intelligence around some of your own behaviours”. He explained that it was the unwillingness to receive constructive criticism that was toxic. He said that attempts at informal resolution had not worked; that HR were now involved; and that disciplinary action may be needed. He asked everyone to act as leaders to deliver a safe and reliable transport service.[39]Around the same time, Azeemah Akhtar also lodged a grievance as is referred to on page 157. The Tribunal has not been given any details about the contents of that grievance or how it was resolved. By March 2022, Ms Akhtar had stopped working at the Blackwall depot.[40]On 7 March 2022, a Teams meeting took place between Juli Browne, Sheba Khanom and Kelvin Malcolm as well as the Claimant [159]. The purpose of the Teams meetings was to try to resolve the breakdown in the relationship between the Claimant and Sheba Khanom. A one page long note of what was discussed in the meeting was included in the bundle although the Claimant did not accept its accuracy. It is unclear whether it was ever sent to her at the time for her comments. There is no indication in the bundle that it was.[41]The Claimant told Ms Khanom during the meeting that she (Mrs Moffat) had raised a grievance against Ms Khanom and was documenting the way that she was being treated. On the Claimant’s own account in her witness statement, this prompted Ms Khanom to completely shut down for the remainder of the meeting.[42]During the meeting, the Claimant complained about the way that Ms Khanom had spoken to her and to other staff members. She said that Ms Khanom was taking tasks from the Claimant and did not like the Claimant interacting with drivers and passenger assistants. She said that Ms Khanom would speak in Bengali to Fatima Khatun and Rizwannah Boksh and it made her feel left out and uncomfortable. Ms Khanom responded that she was unaware that the Claimant felt this way. She apologised if she had upset the Claimant. She claimed that she was only speaking Bengali when translating information. Mr Malcolm requested that Ms Khanom limited her Bengali to translation purposes only, requesting that she collaborated with all staff and ensured that she was not abusing her position.[43]At the end of the meeting, the Claimant said that she was not satisfied that Ms Khanom’s behaviours would change. She confirmed she would raise further concerns if there were no improvements.[44]On 11 March 2022, the Claimant spoke to Mr Malcolm to complain that Hasna Begum, a Passenger Assistant, was spreading stories about her amongst other drivers and passenger assistants. According to the Claimant, she was saying that the Claimant was not who she made out to be, was a bully and was a racist, and was saying this because the Claimant had in November 2021 raised the issue of staff members speaking Bengali in the office. When Mr Malcolm asked the Claimant for the source of this complaint, the Claimant told him it was the driver on Hasna Begum’s bus. Mr Malcolm felt that he could not investigate further.[45]We accept that other staff members were upset with the Claimant by this point. They were unhappy she had complained about the use of Bengali in the office. However, on the evidence before us, we are unable to make any sufficiently clear findings as to exactly what words were said by Hasna Begum. The Claimant never documented her complaint against Hasna Begum at the time nor did she record this incident in her log. There was never any contemporaneous investigation.[46]We note that Sheba Khanom is recorded in the Claimant’s log to have been speaking in Bengali on the telephone on 21 March 2023. The conversation at 12.18 was apparently with Rizwaanah Boksh both in Bengali and English. The Claimant says that the conversation was about rotation for Phoenix. It is not clear what was the subject matter of the Bengali part of the conversation. It is not clear who she was speaking to in the call at 12.34 and whether it was with someone whose English was not sufficiently good for the conversation to have taken place entirely in English.[47]On 29 March 2022, the Claimant received an email from ITRES. It said that it was being sent because her assignment extended beyond March. It said that the processing of timesheets would be taken over by CDL/MATRIX from week commencing 4 April 2022. It also included the following wording: “CDL (Clients Direct Limited) have been made aware that you will be moving from ITRES payroll to CDL payroll, in your role at London Borough of Tower Hamlets Council. We are keen to ensure this transfer goes as smoothly as possible, without any disruption to yourselves and without requiring too much from you. I have therefore condensed some key information into this email, and strongly encourage you to read the content in detail. Clients Direct Limited (CDL) are a payroll-only solution working closely with LB Tower Hamlets Council to provide a payroll service to referred workers. CDL is a sister company to ‘Matrix’ – You will use the Matrix portal to submit timesheets moving forwards … so this means we have direct access to this portal and can resolve queries quickly and efficiently. By transferring across to CDL as a PAYE worker, you will be set up on our payroll for payment and we will be able to issue you with a weekly payslip, and a P45 if you decide to leave your role. You will be transferring to CDL payroll from week commencing 4 April 2022, which means your first timesheet will need to be submitted at the end of that week.”[48]The email went on to indicated that further documents would need to be completed so that the Claimant could be set up with CDL. The documents were a Completed data form, Diversity Data, signed Confidentiality Agreement, a signed Criminal Conviction Declaration and a PAYE Contract. None of those documents have been included in the bundle.[49]The email did not indicate that the Claimant’s engagement with Tower Hamlets would terminate. It did not indicate she would now be in a contractual relationship for her Administrative Assistant role with a different legal entity. Rather the focus of the email was on transferring the payroll service from the Respondent to CDL as a different payroll provider via a new portal called Matrix.[50]On 8 April 2022 the Claimant documented that Sheba Khanom and Reshma Begum were speaking for about 10 minutes in Bengali. It is not clear when this conversation took place, whether it was within the working day or what the conversation was about. Given this lack of clarity, we are unable to find that it was about a topic which concerned the Claimant’s role.[51]For another week from 15 April 2022 the Blackwall depot was closed. This was during the Easter school holidays. We find that this was because of the reduced demand for passenger transport services during this week. The Claimant had the option of working from the Toby Lane depot. She chose not to do so. This time the Claimant was not paid for this week as she had not attended work nor carried out any work.[52]On 19 April 2022, Ms Browne sent all ITRES pool candidates FAQs about the new arrangements with CDL [176]. This would have been sent to the Claimant. The information indicated that the Claimant was now a temporary agency worker with CDL. It said that “overall [in relation to holiday pay] you will not be receiving anything less than you did as an ITRES worker”.[53]On 28 April 2022, Mr Malcolm sent an email to the Claimant, Fatima Khatun and Rizwanaah Bosch stating that the plan had always been to renew their contracts when they expired [180].[54]On 9 May 2022, Mr Malcolm wrote to the Claimant on Tower Hamlets notepaper informing her that her existing contract in the role of Administrative Officer, which was scheduled to end on 9 May 2022, would be extended by a month to 9 June 2022. The letter mentioned that since her arrival the service had developed by taking on three additional school routes and was currently undergoing a service improvement transformation which would include permanent improvement to some vacant posts [195].[55]On the same day, the Claimant emailed Ms Browne asking her if she had other placements available as her placement at Transport Service Unit would be ending on 9 June 2022. She said that she “understood she could not pick and choose but something working alone or a little more kinder would be lovely” [202].[56]On 25 May 2022, there was a further occasion where Ms Khanom was noted in the Claimant’s log to be speaking to Reshma Begum in Bengali for part of a conversation which also concerned the organisation of the Phoenix School holiday club. We are unable to make any factual findings about what exactly was said and whether it related in any way to the role that the Claimant was engaged to perform.[57]On 8 June 2022, Mr Malcolm emailed the Claimant and Reshma Begum. He said that before he went out to ITRES/recruitment to cover the post of Contract Monitoring Officer, this was the last opportunity for either of them to express an interest. He said that it was initially a 3-6 month opportunity and could be done alongside admin duties with an increase in salary [226]. The Claimant responded: “Thank you for asking but I am unable at present”.[58]On the same day, the Claimant attendance a grievance interview meeting conducted by Joanne Woodgates [234].[59]In the subsequent days, there were further emails dealing with the Claimant’s role. Around 9 June 2022, at a point when her administrative role had ended, the Claimant accepted the position as an interim replacement in the role of Contract Monitoring Officer. Fatima Khatun had left this role around 1 June [254]. The Claimant started the role on 13 June 2022. On 14 June 2022, Mr Malcolm recorded in writing that her interim contract in the role of Contract and Monitoring Officer was scheduled to end on 13 July 2022 [250].[60]On 25 June 2022, the Claimant emailed her union representative Kate Jenkins updating her on the current situation at work [254]. She said that she had been excluded from the interview process which took place on 24 June 2022. This had resulted in the permanent role of Contract Monitoring Officer being given to someone else.[61]On 1 July 2022, the Claimant emailed Mr Malcolm and Mr Williams. She stated that her last working day would be 8 July 2022 [286]. She said that she understood that her contract was due to last until Wednesday 13 July 2022 but it made more sense for her to finish that Friday. She wrote this in her email: “I would like to take this opportunity of thanking you both for the opportunity of working at TSU. It has been extremely difficult and challenging working here but I have gained more experience and built great friendships, so thank you both” [286][62]She did not allege that the way she had been treated amounted to race discrimination, detriment for making a protected disclosure, or retaliation for having complained of discrimination.[63]In his response, Mr Williams stated that the Claimant’s help and support had been very valuable. He apologised for the extremely difficult and challenging circumstances and said that he was committed to improving this [288].[64]The Claimant’s engagement ended on Friday 8 July 2022. On 21 July 2022 the Claimant contacted ACAS to request Early Conciliation. On 8 August 2022 she lodged her claim at the Employment Tribunal.[65]On 8 September 2022, the Claimant started a different role working in the Respondent’s Housing team on a fixed term contract.[66]Notwithstanding the end of the engagement, the Respondent continued to progress the Claimant’s grievance by interviewing relevant witnesses including Kelvin Malcolm. An outcome meeting was held on 28 November 2022 and on the 5 December 2022 the Claimant was sent the written outcome to the grievance [352]. The outcome was to dismiss her grievance. The Claimant chose to appeal against the grievance outcome. There was a grievance appeal meeting on 15 February 2023 and an appeal outcome letter was sent to the Claimant on 23 February 2023 [377]. Mr Dan Jones conducted the grievance appeal. He stated by way of appeal outcome that he had asked for a review of the service by getting an independent support to come in and scrutinise the service. Whilst he acknowledged that she was no longer in the service, he hoped that she would engage in the process. He said that he would have liked stronger actions to have been taken by management. LEGAL PRINCIPLES Burden of proof for Equality Act 2010 claims
LEGAL PRINCIPLES
[67]Section 136(2) and (3) of the Equality Act 2010 is worded as follows: (2) If there are facts from which the Court could decide in the absence of any other explanation, that a person (A) contravened the provision concerned, the Court must hold that the contravention occurred; (3) But subsection (2) does not apply if A shows that A did not contravene the provision.[68]Guidance on the burden of proof was given by the Court of Appeal in Igen v Wong [2005] ICR 931. This guidance has subsequently been approved by the Court of Appeal in Madarassay v Nomura International plc [2007] ICR 867 and by the Supreme Court in Hewage v Grampian Health Board [2012] ICR 1054 (at paras 25- 32). In Efobi v Royal Mail Group Limited [2021] ICR at paragraph 26, Lord Leggatt made it clear that Section 136 EqA 2010 had not made any substantive change to the previous law.[69]The burden of proof starts with the Claimant. It is for the Claimant to prove facts from which the Tribunal could infer, in the absence of any other explanation, that the treatment was at least in part the result of his protected characteristic. At the first stage, when considering what inferences can be drawn from the primary facts, the Tribunal must ignore any explanation for those facts given by the Respondents and assume that there is no explanation for them. It can however take into account evidence adduced by the Respondent insofar as it is relevant in deciding whether the burden of proof has moved to the Respondent.[70]The initial burden of proof is on the Claimant. In order for the burden of proof to shift from the Claimant to the Respondent on a particular allegation, it is well established that it is insufficient for the Claimant merely to show a difference in status and detriment treatment (see Madarassay at paragraph 54). In Network Rail Infrastructure v Griffiths-Henry [2006] IRLR 865, Elias J at paragraph 15 said that the mere fact that an unsuccessful candidate was a Black woman and successful candidates were White men would be insufficient to be capable of leading to an inference of discrimination in the absence of a satisfactory non-discriminatory explanation. To shift the burden of proof a claimant must also prove something more. That is, in the present case the Claimant must prove facts from which the Tribunal could infer that there is a connection between the protected characteristics of race and the detrimental treatment, in the absence of a non-discriminatory explanation.[71]If such facts are established, then the burden of proof transfers to the Respondent to establish on the balance of probabilities that the protected characteristic formed no part of the reasoning for the impugned decisions to reject the Claimant’s application. If the Tribunal accepts that the reason given for the treatment is genuine, then unless there is evidence to warrant a finding of unconscious discrimination, such that the Tribunal is really finding that the alleged discriminator has concealed the true reason even from himself, there will be no basis to infer unlawful discrimination at all.[72]In Hewage v Grampian Health Board [2012] ICR 1054, in a passage endorsed by Lord Leggatt in Efobi at paragraph 38, Lord Hope reminded that it was important not to make too much of the role of the burden of proof provisions: “They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or the other” (paragraph 32).[73]The Tribunal has also born in mind the nuanced approach to the burden of proof explained by His Honour Judge James Tayler in Field v Steve Pye & Co [2022] IRLR 948 at paragraphs 33 to 46. At paragraph 46, he said that where a claimant contends that there is evidence that should result in a shift in the burden of proof they should state concisely what that evidence is in closing submissions, particularly where represented. Direct discrimination[74]Section 13 of the Equality Act 2010 is worded as follows: (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.[75]The Claimant identifies her ethnicity as White Other (Maltese heritage). She seeks to compare herself against how she would have been treated had she note been a White Other worker. Such a comparator, whether actual or hypothetical must in all other respects be in a comparable position to the Claimant apart from her White Other ethnicity.[76]As with other strands of discrimination, victimisation or detrimental treatment, the focus is on the mental processes of the person that took the impugned decisions. In a direct discrimination claim, the Tribunal should consider whether that person was influenced consciously or unconsciously to a significant (i.e. a non-trivial) extent by the Claimant’s ethnicity. The decision makers’ motives are irrelevant.[77]Paragraphs 3.4 and 3.5 of the Equality and Human Rights Commission’s Code of Practice on Employment (the EHRC Code) states: “If the employer’s treatment of the worker puts the worker at a clear disadvantage compared to other workers, then it is more likely that the treatment will be less favourable … The worker does not have to experience actual disadvantage (economic or otherwise) for the treatment to be less favourable. It is enough that the worker can reasonably say that they would have preferred not to be treated differently from the way the employer treated – or would have treated another person”.[78]The less favourable treatment needs to be because of the relevant protected characteristic. It does not need to be the sole reason. As was said by Lord Nicholls in Nagarajan v London Regional Transport [1999] ICR 877, at 886E-F: “If racial grounds or protected acts had a significant influence on the outcome, discrimination is made out”. Significant means more than trivial.[79]Unreasonable treatment is not, on its own, a basis for making an inference of unlawful discrimination. An employer does not need to prove that he behaves equally unreasonable to everybody.[80]In JP Morgan Ltd v Chweidan [2012] ICR 268 the Court of Appeal considered whether it was necessary for the Tribunal to carry out a two-stage approach in each case. This is what Elias LJ said at paragraph 5:[81]“In many cases it is not necessary for a tribunal to identify or construct a particular comparator (whether actual or hypothetical) and to ask whether the claimant would have been treated less favourably than that comparator. The tribunal can short circuit that step by focusing on the reason for the treatment”.[82]In D’Silva v NATFHE [2008] IRLR 412, the claimant had sought to argue that the Tribunal had failed to construct the hypothetical comparator correctly before considering how such a hypothetical comparator would have been treated. Underhill J commented (at paragraph 30): “It might reasonably have been hoped that the Frankensteinian figure of the badly-constructed hypothetical comparator would have been clumping his way rather less often into discrimination appeals since the observations of Lord Nicholls in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285 (see in particular paragraph 11 at p.289) and the decision of this tribunal, chaired by Elias J, in Law Society v Bahl [2003] IRLR 640, at paragraphs 103–115 (pp.652–654).”[83]The passages quoted by Underhill J from Shamoon and Bahl emphasise that it is not necessary to construct a hypothetical comparator in order to test whether there is less favourable treatment. It is not possible to state whether the chosen comparator would have been differently treated independently of knowing why the alleged victim was treated in the way in which he or she was. Employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was. Harassment[84]Section 26 of the Equality Act 2010 is worded as follows : (1) A person (A) harasses another (B) ifa. A engages in unwanted conduct related to a relevant protected characteristic, and b. The conduct has the purpose or effect of – i. Violating B’s dignity, or ii. Creating an intimidating, hostile, degrading, humiliating or offensive environment for B …. (4) In deciding whether conduct has the effect referred to in (1)(b), each of the following must be taken into accounta. The perception of B; b. The other circumstances of the case c. Whether it is reasonable for the conduct to have that effect.[85]In relation to a claim for harassment under Section 26, it is open to a Tribunal to find that conduct was unwanted even if a claimant chooses to stay in employment and even if a claimant chooses not to object whether formally or informally (Munchkins Restaurant Ltd v Karmazyn and others EAT 0359/09). The Equality and Human Rights Commission Code states as follows: 7.7. Unwanted conduct covers a range of behaviour, including spoken or written words or imagery, graffiti, physical gestures, facial expressions, mimicry, jokes, pranks, acts affecting a person’s surroundings or other physical behaviour. 7.8 The word ‘unwanted’ means essentially the same as ‘unwelcome’ or ‘uninvited’. ‘Unwanted’ does not meant that express objection has to be made to the conduct before it is deemed to be unwanted. A serious one-off incident can also amount to harassment.[86]When considering whether a comment was “related to” a protected characteristic under Section 26 Equality Act 2010, this covers a wider category of conduct than conduct “because of a protected characteristic” under Section 13 Equality Act 2010. A broader enquiry is required involving a more intense focus on the context of the offending words or behaviour (Bakkali v Greater Manchester Buses (South) Limited t/a Stage Coach Manchester [2018] UKEAT/0176/17).[87]In order to assess the “purpose” of the alleged conduct, the Tribunal must consider the alleged harasser’s motive or intention. When considering the “effect” of the alleged conduct, the Tribunal needs to analyse the three specific factors set out in Section 26(4)(a) to (c). This has both a subjective and an objective aspect. As to the former, the claimant must have felt or perceived his dignity to have been violated or an adverse environment to have been created. As to the latter, if the claimant had experienced those feelings or perceptions, the Tribunal must consider if it was reasonable for him to do so. If a claimant is unreasonably prone to take offence, there will have been no harassment within the meaning of the section (Richmond Pharmacology v Dhaliwal [2009] IRLR 336 at paragraph 15).[88]In assessing whether the conduct met the required threshold by producing the proscribed consequences, Tribunals should not place too much weight on the timing of any objection (Weeks v Newham College of Further Education UKEAT/0630/11). Whether it was reasonable for a claimant to regard treatment as amounting to treatment that violates his dignity or has an intimidating, hostile, degrading, humiliating or offensive environment is a matter for factual assessment of the Tribunal having regard to all the relevant circumstances, including the context (Richmond Pharmacology v Dhaliwal [2009] IRLR 336). In that case the EAT said at paragraph 22: “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 … it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase”.[89]In speaking of the statutory language in Section 26(1), Elias LJ in Land Registry v Grant [2011] ICR 1390 said (at paragraph 47): “Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment”. Victimisation[90]Section 27 of the Equality Act 2010 is worded as follows:(1) A person victimises another person (B) if A subjects B to a detriment because: (a) B does a protected act; or (b) A believes that B has done, or may do, a protected act(2) Each of the following is a protected act- (a) Bringing proceedings under this Act; (b) Giving evidence or information in connection with proceedings under this Act (c) Doing any other thing for the purposes of or in connection with this Act (d) Making an allegation (whether or not express) that A or another person has contravened this Act(3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.[91]Protected acts include bringing proceedings under the Equality Act 2010 (section 27(2)(a)) and making an allegation (whether or not express) that A or another person has contravened the Equality Act 2010 (section 27(2)(d)).[92]In Beneviste v Kingston University [2007] (UKEAT/0393/05) the EAT (HHJ Richardson) discussed at paragraph 29 the minimum requirements for a communication to satisfy the requirements of Section 27(2)(d), by reference to helpful examples: “There is no need for the allegation to refer to the legislation, or to allege a contravention, but the gravamen of the allegation must be such that, if the allegation were proved, the alleged act would be a contravention of the legislation. If a woman says to her employer, "I am aggrieved with you for holding back my research and career development" her statement is not protected. If a woman says to her employer, "I am aggrieved with you for holding back my research and career development because I am a woman" or "because you are favouring the men in the department over the women", her statement would be protected even if there was no reference to the 1975 Act [Sex Discrimination Act 1975] or to a contravention of it.”[93]Merely making reference to a criticism, grievance or complaint without suggesting that the criticism, grievance or complaint was in some sense an allegation of discrimination is insufficient.[94]A detriment will only exist if a reasonable worker would also take the view that the treatment was to his detriment: Ministry of Defence v Jeremiah [1980] ICR 13 at paragraph 31. An unjustified sense of grievance does not amount to a detriment.[95]In order to succeed with a claim of victimisation, there must be a sufficient causal connection between a protected act and the alleged detriment. It is enough if the protected act had a significant influence on the outcome.[96]If the alleged detriment is a failure to investigate a complaint of discrimination or harassment, there must be a causative link between the fact of the employee making the Equality Act complaint and the failure to investigate it. It is insufficient for the protected act to be a “but for” cause. Langstaff J commented as follows at paragraphs 21-23 in A v Chief Constable of West Midlands Police (UKEAT/0313/14/JOJ (21.4.15): “But omissions to act must be carefully scrutinised in this regard. The purpose of the victimisation provision is protective. It is not intended to confer a privilege upon the person within the hypothetical bubble I have postulated, for instance by enabling them to require a particular outcome of a grievance or, where there has been a complaint, a particular speed with which that particular complaint will be resolved. It cannot in itself create a duty to act nor an expectation of action where that does not otherwise exist. It follows that in some cases – and I emphasise that the context will be highly significant – a failure to investigate a complaint will not of itself amount to victimisation. Indeed there is a central problem with any careful analysis and application of section 27 to facts broadly such as the present. That is that, where the protected act is a complaint, to suggest that the detriment is not to apply a complaints procedure properly because a complaint has been made, it might be thought, asks a lot and is highly unlikely. The complaints procedure itself is plainly embarked on because there has been a complaint: to then argue that where it has not been embarked on with sufficient care, enthusiasm or speed those defects are also because of the complaint itself would require the more careful of evidential bases… It might be different in some circumstances. An example might be if the particular nature of the complaint meant that it would not be discussed or dealt with in a way in which other complaints of a different nature would. For instance, if a particular employer found the prospect of dealing with a complaint of sexual harassment embarrassing to the extent that it took no action on such a complaint when otherwise it would have a duty to do so, or there was a well-established expectation that the complaint would be dealt with, it is in my view possible that a Tribunal might conclude that the omission to act, if it caused the victim of the alleged harassment a detriment in terms of the particular effects of her disappointed expectations, could conceivably come within the scope of victimisation.”[97]Iwuchukwu v City Hospitals Sunderland NHS Foundation Trust [2019] IRLR 1022 is an example of a case where a Tribunal found that the failure to investigate the claimant’s grievances was materially influenced by the content of the grievances (which had alleged race discrimination) and was therefore an act of victimisation. This conclusion was upheld by the Court of Appeal.[98]It is open to an employer to allege that the reason for the treatment was not the protected act but some feature of it which could “properly be treated as separable” (Martin v Devonshires Solicitors [2011] ICR 352 (Underhill P)).[99]In order for the burden of proof to shift from a claimant to the respondent, the claimant must establish more than that the claimant has suffered a detriment and has done a protected act. There must be some factual basis for potentially inferring that the protected act has influenced the detrimental treatment. Law on time limits under the Equality Act 2010[100]Section 123 of the Equality Act 2010 is worded as follows:(1) …proceedings on a complaint brought within Section 120 may not be brought after the end of –a. The period of 3 months starting with the date of the act to which the complaint relates; orb. Such other period as the employment tribunal thinks just and equitable(2) ….(3) For the purposes of this section _ a. Conduct extending over a period is to be treated as done at the end of the period; b. Failure to do something is to be treated as occurring when the person in question decided on it.(4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something: a. When P does an act inconsistent with doing it, or b. If P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it[101]Under Section 123 of the Equality Act 2010, proceedings on a complaint may not be brought after the end of the period of three months starting with the date of the act to which the complaint relates. An act “occurs when it is done, not when you acquire knowledge of the means of proving that the act done was discriminatory” (Mensah v Royal College of Midwives [1995] EAT/124/94). The act is complete for the purpose of the time limitation when the decision is taken rather than when it is communicated. Therefore, time does not start from when the employee acquires knowledge of the act or deliberate failure to act (Virdi v Commissioner of Police of the Metropolis) [2007] IRLR 24).[102]Conduct extending over a period is to be treated as done at the end of the period (Section 123(3) Equality Act 2010). There is conduct extending over a period if there is a continuing discriminatory state of affairs as opposed to a succession of unconnected or isolated specific acts. If so, then the three-month time period for bringing a claim only runs from the date on which the state of affairs ends (Metropolitan Police Commissioner v Hendricks [2003] ICR 530). However, if any of the constituent acts is found not to be an act of discrimination, then it cannot be part of a continuing act (South West Ambulance NHS Foundation Trust v King [2020] IRLR 168).[103]The three-month time for bringing Tribunal proceedings is paused during Early Conciliation such that the period starting with the day after Early Conciliation is initiated and ending with the day of the early conciliation certificate does not count (Section 140B(3), Equality Act 2010). If the time limit would have expired during Early Conciliation or within a month of its end, then the time limit is extended so that it expires one month after Early Conciliation ends (Section 140B(4), Equality Act 2010).[104]If the claim has been brought outside the primary limitation period, then the Tribunal has jurisdiction to consider the claim if it was brought within such other period as the Tribunal considers just and equitable. The Tribunal has a wide discretion and the EAT has a limited basis on which it can interfere. This is the proper principle to derive from Robertson v Bexley Community Centre (t/a Leisure Link) [2003] IRLR 434, CA, as explained by HHJ Tayler in Jones v Secretary of State for Health and Social Care EAT 23.1.24 at paragraphs 27-38).[105]Factors which are almost always relevant to an exercise of the discretion are the length of and the reasons for the delay, and whether the delay has prejudiced the Respondent (Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] ICR 1194 at paragraph 19). However: “There is no … requirement that the tribunal must be satisfied that there was a good reason for the delay, let alone that time cannot be extended in the absence of an explanation of the delay from the claimant. The most that can be said is that whether there is any explanation or apparent reason for the delay and the nature of any such reason are relevant matters to which the tribunal ought to have regard” (Abertawe at paragraph 25)[106]It is not necessary for a Tribunal to consider the checklist of factors set out in Section 33 of the Limitation Act 1980, given that that Section is worded differently from Section 123 of the Equality Act 2010, so long as it does not leave a significant factor out of account.[107]It will frequently be fair to hold claimants bound by time limits which they could, had they taken reasonable steps, have discovered. If the delay in issuing proceedings has been caused by the fault of an adviser, this is a potentially relevant factor that potentially excuse a failure to issue proceedings in time, or a delay in issuing proceedings thereafter (Hunwicks v Royal Mail Group plc EAT 0003/07; 20 March 2007 per Underhill J at paragraphs 9 and 13). However, to be a relevant factor, the bad advice must have been the reason for the delay.[108]When balancing the prejudice to each party as a result of granting or refusing to grant an extension of time, the Tribunal may have regard to the following factors:a. The obvious prejudice of having to meet a claim which would otherwise have been defeated by a limitation defence;b. The forensic prejudice which a Respondent may suffer if the limitation period is extended by many months or years, which is caused by such things as fading memories, loss of documents and losing touch with witnesses;c. The prejudice to the claimant in not being awarded a remedy for an otherwise legally sound complaint if the Tribunal holds the complaint to be time barred.[109]If there is no forensic prejudice to the Respondent that is (a) not decisive in favour of an extension and (b), depending on the Tribunal’s assessment of the facts, may well not be relevant at all. It will very much depend on the way in which the Tribunal sees the facts (Miller v Ministry of Justice (UKEAT/0003/15/LA) (15.3.16). Detriment on the ground of protected disclosure[110]A claimant has the right not to be subject to any detriment by any act, or any deliberate failure to act, by the respondent done on the ground that the claimant has made a protected disclosure (Section 47B(1A)(a) Employment Rights Act 1996 (“ERA 1996”)). A protected disclosure is defined in Section 43A as “a qualifying disclosure (as defined by Section 43B) which is made by a worker in accordance with any of sections 43C to 43H”. Qualifying disclosures[111]Section 43B ERA 1996 is in the following terms: (1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following— (a) that a criminal offence has been committed, is being committed or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, (d) that the health or safety of any individual has been, is being or is likely to be endangered, (e) that the environment has been, is being or is likely to be damaged, or (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.[112]Only those disclosures that meet the statutory requirements set out in Section 43B qualify for protection. The starting point is that the disclosure must be a “disclosure of information” made by the worker bringing the claim. That disclosure must have two features. Both are based on the belief of the worker, but that belief must be a reasonable belief.[113]The first is that at the time of making the disclosure the worker reasonably believes the disclosure tends to show a ‘relevant failure’ in one of five specified respects; or deliberate concealment of that failure. The second is that at the time of making the disclosure, the worker reasonably believes the disclosure is made in the public interest. (1) Disclosure of information[114]In Kilraine v London Borough of Wandsworth [2018] ICR 1850 the Court of Appeal rejected the view that allegations could not amount to a disclosure of information. Sales LJ noted that allegations could amount to disclosures of information depending on their content and on the surrounding context. By itself, an allegation made by an NHS employee that “You are not complying with health and safety requirements” would be so devoid of specific factual content that it would not fit within the statutory language – such a statement does not disclose information tending to show health and safety is being endangered. If such a statement was made whilst pointing to sharps lying discarded on the ward floor, then this context would give the disclosure sufficient factual content to amount to a qualifying disclosure.[115]Sales LJ set out the following test for determining whether the information threshold had been met so as to potentially amount to a qualifying disclosure: the disclosure has to have “sufficient factual content and specificity such as is capable of tending to show” one of the five wrongdoings or deliberate concealment of the same. It is a matter “for the evaluative judgment of the tribunal in the light of all the facts of the case” (paras 35-36).[116]Protected disclosures will commonly be made in grievances, particularly where there is no formal whistleblowing policy. However, section 43B does not limit the manner of the disclosure. Verbal disclosures can be qualifying disclosures - although verbal disclosures may be disputed, and a claimant will have to prove that the disclosure was made as alleged. (2) Reasonable belief disclosure tends to show wrongdoing[117]There are two separate requirements here –(a) a genuine belief that the disclosure tends to show a relevant failure in one of the five respects (or deliberate concealment of that wrongdoing); and(b) that belief must be a reasonable belief. Reasonableness involves applying an objective standard to the personal circumstances of the discloser. The reasonableness test might differ depending on whether the discloser was a lay person or an expert. For example, a consultant surgeon would generally be expected to check medical records before it would be reasonable for them to believe their disclosure tended to show medical malpractice. A lay observer may reasonably believe the same disclosed information indicated wrongdoing without first making such checks (Korashi v Abertawe Bro Morgannwg Local Health Board [2012] IRLR 3, EAT). The definition is concerned with what the worker believed at the time when they made the disclosure, not what they may have come to believe later on (Dodd v UK Direct Solutions Limited at paragraph 55 [2022] EAT 44 (18.3.22)).[118]If the disclosure has a sufficient degree of factual content and specificity, then that belief is likely to be regarded as a reasonable belief (Kilraine at paragraph 36). The belief has to be that the information in the disclosure tends to show the required wrongdoing, not just a belief that there is wrongdoing (Soh v Imperial College of Science, Technology and Medicine EAT 0350/14). The disclosure may still be a protected disclosure even if the information does not stand up to scrutiny. A belief may be a reasonable belief even if it is wrong: Babula v Waltham Forest College [2007] ICR 1026.[119]Breach of a legal obligation (Section 43B(1)(b)): Any legal obligation potentially suffices, including breach of an employment contract: Parkins v Sodexo [2002] IRLR 109].[120]Unless the legal obligation is obvious, Tribunals should consider the particular wrong that the claimant alleges they believe has been breached. However, there are no sub-rules requiring that the worker should expressly accuse the employer of acting in breach of a legal obligation, still less identify a particular legal obligation in the disclosure. Such additional requirements go beyond the statutory wording and are inconsistent with the purpose of the legislation. However, what the worker said about the legal obligation, and whether the matter is obvious are relevant evidential matters in deciding what they believed and the reasonableness of what they believed. If the nature of the worker’s concern is stated – e.g. they say that they consider that the report information shows a breach of a legal obligation - “it will be harder to dispute that they held this belief and that the professed belief that the disclosure tended to show the specified matter was reasonable” (Twist DX Limited v Armes and others at paragraph 87).[121]In Kilraine v London Borough of Wandsworth [2018] ICR 1850, the disclosure in issue related to an occasion when the worker had raised a child safeguarding issue and claimed to have received an inadequate response. The ET held that this did not tend to show breach of a legal obligation, and this was upheld in the Court of Appeal. As the Court of Appeal noted, nothing in the Particulars of Claim or the witness statement indicated that the claimant had a particular legal obligation in mind. It was only later that her representative suggested a potential breach of the Children Act 2004 and the Education Act 2002.[122]Endangerment of health and safety (Section 43B(1)(d)): This will typically be disclosures about actions or failures by the worker’s employer but can also extend to the conduct of third parties: Hibbins v Hesters Way Neighbourhood Project [2009] ICR 319. The nature of the health and safety danger needs to be specified, but this can be done in general terms. So in Fincham v HM Prison Service 0925/01 the EAT held that a statement: ‘I feel under constant pressure and stress awaiting the next incident’ was sufficiently detailed to identify the danger to health and safety – it inferred that the claimant’s own health was at risk. Disclosures which in the reasonable belief of the worker tend to show that the health or safety of any individual has been, is being or is likely to be endangered will generally be reasonably believed to be in the public interest (see below). (3) Reasonable belief that disclosure is made in the public interest[123]There must be a reasonable belief on the part of the worker that the disclosure was in the public interest. This requirement has two components – first a subjective belief, at the time, that that the disclosure was in the public interest; and secondly, that the belief was a reasonable one. (a) Genuine belief[124]This component may not be apparent to a litigant in person or even to some professional representatives. As a result, it may be incumbent on a Tribunal to ask a litigant who does not address the issue in their witness statement, whether they believed that they were acting in the public interest. If the answer is yes, then they could be asked for an explanation, which could be the subject of cross-examination as to whether it was a belief only formed at a later stage: see Ibrahim v HCA International plc [2020] IRLR 224 at paragraph 25. (b) Reasonable belief[125]Secondly, that belief must be a reasonable one. What amounts to a reasonable belief that disclosure was in the public interest was considered by the Court of Appeal in Chesterton Global Limited v Nurmohamed [2018] ICR 731. Underhill LJ, giving the leading judgment, refused to define “public interest” in a mechanistic way, based merely on whether it impacted anyone other than the claimant or whether it impacted those beyond the workforce. Rather a Tribunal would need to consider all the circumstances, although the following fourfold classification of relevant factors was potentially a “useful tool”:(a) The numbers in the group whose interests the disclosure served – although numbers by themselves would often be an insufficient basis for establishing public interest.(b) The nature and the extent of the interests affected – the more important the interest and the more serious the effect, the more likely that public interest is engaged.(c) The nature of the wrongdoing – disclosure about deliberate wrongdoing is more likely to be regarded as in the public interest than inadvertent wrongdoing.(d) The identity of the wrongdoer – the larger or more prominent the wrongdoer, the more likely that disclosure would be in the public interest.[126]There may be more than one reasonable view as to whether a particular disclosure was in the public interest. All that matters is that the claimant’s subjective belief was objectively reasonable (Chesterton at paragraphs 28-29). Underhill LJ said that Tribunals should be cautious about concluding that the public interest requirement is satisfied in the context of a private workplace dispute merely from the numbers of others who share the same interest. In practice, the larger the number of individuals affected by a breach of the contract of employment, the more likely it is that other features of the situation will engage the public interest. Protected disclosure detriment[127]The test for “detriment” is the same as in discrimination law. If a reasonable worker might regard the treatment as a detriment, and the claimant genuinely does so, that is sufficient to establish there has been a detriment. There does not necessarily need to be any physical or economic consequences. An unjustified sense of grievance cannot amount to a detriment (Derbyshire v St Helen’s MBC [2007] ICR 841). Causation of detriment[128]In Osipov v Timis [2017] EAT, Simler P summarised the proper approach to inference drawing and the burden of proof when considering causation as follows (at paragraph 115): “(a) the burden of proof lies on a claimant to show that a ground or reason (that is more than trivial) for detrimental treatment to which he or she is subjected is a protected disclosure he or she made. (b) By virtue of s.48(2) ERA 1996, the employer (or other respondent) must be prepared to show why the detrimental treatment was done. If they do not do so inferences may be drawn against them… (c) However, as with inferences drawn in any discrimination case, inferences drawn by tribunals in protected disclosure cases must be justified by the facts as found.”[129]This approach was approved by Choudhury J in Malik v Cenkos Securities Plc [2018] (UKEAT/0100/17/RN) (17.1.18) at paragraph 80(c), relying on the discussion carried out by Underhill J in London Borough of Harrow v Knight [2003] IRLR 140 at paragraphs 19-21. Underhill J expressed the view that section 48(2) is not to be read as deeming the employer to have acted on the ground of the protected disclosure where he does not prove any other reason.[130]As a result, as with discrimination claims, the burden remains on the claimant to prove facts from which an inference can be drawn that the protected disclosure a cause of the detrimental treatment. At that point, the burden shifts to the employer to show the ground on which the detrimental act was done. If a Tribunal rejects the reason advanced by the employer, then it is not bound to accept the reason advanced by the worker, namely that it was on the ground of a protected disclosure: it is open to the Tribunal to find that the real reason for the detriment was a third reason.[131]The Tribunal must consider what, consciously or unconsciously, was the employer’s reason for the detriment. It will need to consider whether to draw an inference from its findings of fact. Causation will be established unless the employer can show that the protected disclosure played no part whatsoever in its acts or omissions: Fecitt v NHS Manchester [2012] ICR 372, CA. The result is that there will be a sufficient causal connection if a protected disclosure was one of several reasons for the detriment, even if it was not the predominant reason. It is enough if it was a material influence, in the sense of being more than a trivial influence. There is no need to consider how a hypothetical or real comparator would have been treated.[132]The fact that an otherwise unexpected event followed rapidly on from an event which might have caused it (such as a protected disclosure) provided some evidence that it might have done so, which could be added to other available evidence (Oxford Said Business School v Heslop EA-2021-000268-VP (EAT 11.11.21)).[133]When considering the employer’s potential liability, the Tribunal must focus on the mental processes of the individual decision maker, in asking whether the employer was materially influenced by a protected disclosure. This will require the decision maker to know of the protected disclosure.[134]There is a potential distinction between the protected disclosure and some feature of it (which can properly be treated as separable). This was addressed by the Court of Appeal in Kong v Gulf International Bank Limited [2022] IRLR 854: “56. […] there may in principle be a distinction between the protected disclosure of information and conduct associated with or consequent on the making of the disclosure. For example, a decision-maker might legitimately distinguish between the protected disclosure itself, and the offensive or abusive manner in which it was made, or the fact that it involved irresponsible conduct such as hacking into the employer's computer system to demonstrate its validity. In a case which depends on identifying, as a matter of fact, the real reason that operated in the mind of a relevant decision-maker in deciding to dismiss (or in relation to other detrimental treatment), common sense and fairness dictate that tribunals should be able to recognise such a distinction and separate out a feature (or features) of the conduct relied on by the decision-maker that is genuinely separate from the making of the protected disclosure itself. […] 57. […] Once the reasons for particular treatment have been identified by the fact-finding tribunal, it must evaluate whether the reasons so identified are separate from the protected disclosure, or whether they are so closely connected with it that a distinction cannot fairly and sensibly be drawn […]. 59. […] In a proper case, even where the conduct of the whistle-blower is found not to be unreasonable, a tribunal may be entitled to conclude that there is a separate feature of the claimant's conduct that is distinct from the protected disclosure and is the real reason for impugned treatment.” Automatic unfair dismissal[135]In order to be able to bring a claim for unfair dismissal whether as here for automatic unfair dismissal for making a protected disclosure, the Claimant must have been employed by the Respondent.[136]In Ready Mix Concrete v Minister of Pensions [1968] 2 QB 497, McKenna J set out the classic definition of what must be present for an individual to have the status of employee. He said: “A contract of service exists if these three conditions are fulfilled.(i) The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master.(ii) He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other’s control in a sufficient degree to make that other master.(iii) The other provisions of the contract are consistent with its being a contract of service.”[137]Section 103A Employment Rights Act 1996 provides: “An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.”[138]If employment status is established, then in order to establish that the dismissal was automatically unfair, there must have been a protected disclosure made by the Claimant; and that must have been the reason or the principal reason for the dismissal. Protected disclosure detriment - Jurisdiction[139]Section 48(3) provides: “An employment tribunal shall not consider a complaint under this section unless it is presented—(a) before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them, or(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.”[140]The period runs from the date of the act or failure to act, not from the date on which the detriment is first suffered or the date on which the employee came to know of the matter of which he is now complaining.[141]A “series of similar acts or failures” [i.e. detriments] is present where there is some link between the acts which makes it just and reasonable for them to be treated as in time and for the claimant to be able to rely on them.[142]So far as the sufficiency of the connection is to be a series of similar acts or failures, the Court of Appeal (Mummery LJ) gave the following guidance in Arthur v London East Railway [2007] ICR 193 at paragraph 35: “It is necessary to look at all the circumstances surrounding the acts. Were they all committed by fellow employees? If not, what connection, if any, was there between the alleged perpetrators? Were their actions organised or concerted in some way? It would also be relevant to inquire why they did what is alleged. I do not find “motive” a helpful departure from the legislative language according to which the determining factor is whether the act was done “on the ground” that the employee had made a protected disclosure. Depending on the facts I would not rule out the possibility of a series of apparently disparate acts being shown to be part of a series or to be similar to one another in a relevant way by reason of them all being on the ground of a protected disclosure.”[143]Each of the acts forming part of the alleged series must in itself be unlawful.[144]Section 48(4)(a) is worded as follows: (4) For the purposes of subsection (3)-a. Where an act extends over a period, the “date of the act” means the last day of that period, andb. A deliberate failure to act shall be treated as done when it was decided on; And in the absence of evidence establishing to the contrary, an employer shall be taken to decide on a failure to act when he does an act inconsistent with doing the failed act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected do the failed act if it was to be done. Extension of primary time limit[145]If the claim was not presented within the applicable three-month time limit for a particular complaint, the Tribunal has the power to extend time in the circumstances set out in Section 48(3)(b).[146]This has two elements. The first is that the claimant must show it was not reasonably practicable to present his claims in time. The burden is on the claimant to persuade the Tribunal of this. If he succeeds in doing this, the Tribunal must be satisfied that the further time period beyond the expiry of the primary limit was itself reasonable.[147]In assessing whether it was “not reasonable practicable” to meet the time limit, the Tribunal must ask whether it was “reasonably feasible” to present the complaint within the relevant time limit (Palmer and Saunders v Southend-on-Sea Borough Council [1984] ICR 372 (CA) at page 385). In that case the Court of Appeal said that the Tribunal will no doubt investigate what was the substantial cause of the employee’s failure to comply with the statutory time limit. This approach was endorsed by Sir Thomas Bingham MR in the later case of London International College v Sen [1993] IRLR 333.[148]If the Tribunal is satisfied that it was not reasonably practicable to present the claim in time, it must then at stage 2 be satisfied that it was presented within a further “reasonable period”. This is not the same as asking whether the claimant acted reasonably; still less is it equivalent to the question whether it would be just and equitable to extend time. Instead, it requires an “objective consideration of the factors causing the delay and what period should reasonably be allowed in those circumstances – having regard, certainly to the strong public interest in claims in this field being brought promptly and against a background where the primary time limit is three months” (Cullinane v Balfour Beatty Engineering Services [2011] (UKEAT/0537/10) (5 April 2011) Underhill P at paragraph 16). Conclusions Jurisdiction Status Was the Claimant an employee for the purposes of Section 230(1) and 103A of the Employment Rights Act 1996 as at July 2022?
Conclusions
[149]There was a discussion at the start of the Final Hearing about whether the issue of employee status was an issue that the Tribunal needed to determine. We noted that there was a complaint of automatic unfair dismissal that needed to be decided on its merits. In order to decide that complaint, we would need to decide whether the Claimant was an employee at the point at which her engagement ended. It is only if she was an employee that such a complaint could succeed.[150]As a result, Mr Davies for the Respondent accepted that this was a jurisdictional issue which we needed to address and decide. He did not seek to argue that the Claimant was a worker rather than an employee throughout the period of her engagement. Rather, during closing submissions, he accepted that she had the status of an employee up until the end of March 2022. Thereafter, the Respondent argued that she was no longer an employee of the Respondent and therefore could not be dismissed by the Respondent.[151]Because the issue of worker status has not been specifically identified, there has been no specific investigation during the course of the evidence as to whether the Claimant had worker status here. Furthermore, this issue was not addressed during Closing Submissions. The Tribunal has proceeded on the concession made by the Respondent that the Claimant was an employee up until the end of March 2022. The issue for us to decide in this case is whether the Claimant’s status changed to an employee engaged by a different legal entity at the point where different payroll arrangements were made at the end of March 2022.[152]Based on our factual findings, we do not accept that the change in the payroll arrangements had the effect of making a change to the legal entity with whom the Claimant had a contractual relationship. The contractual relationship remained with the Respondent. It is clear from the paperwork that Clients Direct Limited was a payroll only provider. Nothing in the paperwork indicates that she was being dismissed from her role with the Respondent and then re-engaged by a new legal entity from the start of April 2022 onwards. Had this been the true legal effect of the arrangements, which presumably applied to many other employees at the same time, there would have been a contracting out situation to which the Transfer of Undertakings (Protection of Employment) Regulations 2006 would have applied. Nowhere in the paperwork before the Tribunal is there any suggestion that this took place.[153]As a result, we conclude that the Claimant was an employee of the Respondent throughout the period in which she was engaged to work for the Respondent. Factual allegations of detriment/less favourable treatment A. Did the Respondent through its employees Ms Rizwannah Boksh and Ms Sheba Khanom talk in Bengali in November 2021 and on the specified dates during 2022;[154]It is certainly the case that on the specific occasions that the Claimant has cited in her Claim Form, both Ms Boksh and Ms Khanom chose to speak in Bengali. However, as set out in our factual findings, where either of those two individuals were speaking Bengali on the telephone, it is unclear whether this was them speaking with a parent or other individual whose English was limited and for whom it was helpful to communicate in Bengali. It was not the Claimant’s role, or that of any other member of staff, to listen in to telephone conversations conducted by others. Furthermore, where there were discussions between Ms Boksh and Ms Khanom in the office which took place in Bengali, we have not been able to make any specific factual findings as to what was said and therefore whether this was on a topic that potentially concerned the role that the Claimant was performing. B. through its employee Ms Rizwanaah Boksh on or around 28 January 2022 accuse the Claimant of hiding a set of keys[155]We have rejected the factual basis on which this allegation is advanced. Ms Boksh did not accuse the Claimant of hiding a set of keys. This is the Claimant’s mistaken recollection of the discussion about the keys having gone missing. C. through its employee Mr Kelvin Malcolm deny the Claimant work between 13 and 17 February 2022[156]The Claimant was not denied work. The depot had closed for half term due to the reduced demand for passenger transport services, as was a regular practice at quieter times. The Claimant had the opportunity to work from Toby Lane. Whilst she chose not to work, she was still paid for this week. D. through its employee Hasna Begum tell other workers that the Claimant was not who she made out to be, was a bully and was racist because she complained about her colleagues speaking in Bengali during the period from 21 February 2022 to 11 March 2022.[157]We have not been able to make any precise factual findings about the words used by Hasna Begum in any complaint that she made about the Claimant. It is clear that there had been a breakdown in the working relationship between the Claimant and certain members of staff at this stage. It was not a point recorded by the Claimant in her log and was not raised by way of written complaint. Because the Claimant did not complain about this in writing, it was never investigated. E. through its employee Mr Kelvin Malcolm deny the Claimant the opportunity to work the week beginning 15 April 2022.[158]The Claimant was not denied work. The depot had closed for a week during the Easter school holidays due to the reduced demand for passenger transport services, as was a regular practice at quieter times. The Claimant had the opportunity to work from Toby Lane. She chose not to work and therefore was not paid for this week. F. through its employee Mr Kelvin Malcolm fail to renew her contract after 13 July[159]The Claimant was engaged under a series of short-term contracts. The last of these was a contract for one month in the role of Contract Monitoring Officer. It started on or around 13 June 2022 and was due to expire on 13 July 2022. It was documented in a letter dated 14 June 2022. Before Mr Malcolm could consider whether to extend this contract further until a permanent appointee started, the Claimant had emailed on 1 July 2022 stating that she would end the role on Friday 8 July 2022. G. through its employee Mr Kelvin Malcolm fail to offer her the Contract Monitoring Officer role?[160]The Claimant was given the opportunity to apply for the permanent position of Contract Monitoring Officer as with other internal potential candidates for this role. Mr Malcolm had emailed both her and Reshma Begum on 8 June 2022 giving her a last opportunity to express an interest in the role. She chose not to do so. It was not within Mr Malcolm’s gift to offer her the permanent role, which needed to be advertised and recruited in line with the Respondent’s standard recruitment procedures. Protected Act Did the Claimant in her grievances of 21 and 28 February 2022:a. give evidence or information in connection with proceedings under the Equality Act 2010?b. do any other thing for the purposes of or in connection with the Equality Act 2010?c. make an allegation (whether or not express) that the Respondent or another person had contravened the Equality Act 2010?[161]We have carefully considered the wording of the email dated 21 February 2022 and the subsequent complaint raised on the grievance form on 28 February 2022. Neither document amounts to a protected act. Neither contains any allegation (whether or not express) that the Respondent or any other person has contravened the Equality Act 2010. Neither contains any other evidence or information to satisfy the statutory requirements to amount to a protected act. Protected Disclosure Did the Claimant in saying in her grievance of 21 and 28 February 2024 that the Respondent was not keeping its round sheets and vehicle registrations up to date:a. disclose information;b. if so did the Claimant believe that that statement tended to show: i. that a criminal offence has been committed, is being committed or is likely to be committed; and/or ii. that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject: and/or iii. that the health or safety of any individual has been, is being or is likely to be endangered,c. if so did the Claimant reasonably believe that;d. if so did the Claimant reasonably believe she was making the disclosure in the public interest?[162]We have carefully considered each of the legal requirements that need to be satisfied for a communication to amount to a qualifying disclosure. We accept that in the paragraph that the Claimant relies upon she was disclosing information with sufficient specificity to amount to a disclosure of information within Section 43B Employment Rights Act 1996. However, we do not find that she genuinely believed when making this disclosure that the information she was disclosing tended to show a breach of a legal obligation, that health and safety was being endangered or that there was a criminal offence being committed. The key to understanding her belief about the disclosure is in the sentence that starts “This makes it difficult …”. She was disclosing a failure by others to comply with what she regarded as a useful method of record keeping, namely to record the names of drivers, passenger assistants and the registration numbers on a single document for each journey. The failure to do this make it more difficult for her to process penalty charge notices or to compile entries on defect sheets. It is telling that the Claimant does not refer to any belief about this disclosure in any contemporaneous documents in her witness statement. When cross examined about this wording she did not indicate that she had a particular belief she was disclosing wrongdoing by using these words. Rather she referred to an earlier communication about the hours that fellow members of staff were working – this was an entirely different point. That earlier communication had been discussed at the start of the hearing. As already indicated, the Tribunal decided that it was not part of the Claimant’s case to allege that this earlier communication was a protected disclosure; and went on to decide that it could not be added by way of amendment. Direct Race Discrimination Did the Respondent treat the Claimant less favourably than it would have treated an employee of Bengali origins because the Claimant’s ethnicity was White Other by doing those acts set out in factual allegations A, B and D above?[163]In relation to A, namely the allegation that Ms Boksh and Ms Khanom were speaking in Bengali, the appropriate comparison that the Claimant must make in raising this direct race discrimination allegation is between how she was treated in this situation and how another non-Bengali speaking employee would have been treated, who was in an equivalent situation. That situation was that there was a significant breakdown in their working relationship, where complaints had been raised about their conduct more generally.[164]Given the limited factual findings we have been able to make about the particular instances when the two members of staff were talking in Bengali, we have not been able to make any factual findings about the subject matter of any of the disputed conversations. It is therefore not clear whether these conversations concerned nonwork-related topics; or whether they concerned work related topics that were specific to their roles as Route Managers which did not need to concern the Claimant. It is therefore not possible for us to find that the subject matter of the conversation was on a point that the Claimant needed to be aware about in order to do her role.[165]We do not consider that the limited facts we have been able to find are sufficient to lead to an inference that the conversations took place in Bengali because of the Claimant’s White Other ethnicity, in the absence of a non-discriminatory explanation. In any event, notwithstanding the lack of evidence from either of the two individuals criticised, we find it is likely that the reason they spoke in Bengali on the telephone was because it was their role to speak to parents or other stakeholders in Bengali where this was their native tongue. It is likely that the two spoke to each other in Bengali as this was more natural in circumstances where there was an absence of clear guidance that they should speak to each other in English at all times. Given that her role was a different one to theirs as Route Managers, there was no particular need for them to speak in English so that she could understand what they were saying. There was no evidence that the execution of her role was made more difficult by the use of Bengali rather than English in their conversations. We have already referred to the difficult working environment given the breakdown in the working relationships.[166]As to B, we have not found that this factual allegation has been proven. Therefore, this cannot amount to direct race discrimination.[167]As to D we have not been able to make any sufficient clear factual findings as to what was said by Ms Begum. Harassment related to race Do the acts set out in allegations A, B and D above relate to the Claimant’s white other identity?[168]We do not find that the instances where these two individuals spoke in Bengali related to the Claimant’s white other identity. It related to the need to communicate to parents and other stakeholders, or was because this was more natural for them as those for whom Bengali was their native tongue, in the absence of clear guidance from the management. If so, did they constitute unwanted conduct?[169]As a result, it is not necessary for us to go on to consider whether this was unwanted conduct. However, we find that it was unwanted, in that the Claimant complained about it on several occasions. She also documented instances in her contemporaneous log. If so, in doing them, did the Respondent have the purpose of or did they have the effect of:a. violating the Claimant's dignity orb. creating an intimidating, hostile, degrading, humiliating or offensive environment, taking into account: i. the Claimant’s perception; ii. the other circumstances of the case; and iii. whether it was reasonable for the conduct to have that effect?[170]This was not done with the purpose of creating a proscribed environment. We do not consider that it had that effect. It is significant that the Claimant had worked alongside Bengali colleagues for several months until early June 2021. She had not complained about her colleagues speaking in Bengali until November 2021 by which point there had already been a significant breakdown in the working relationship. It is very likely that they had been speaking in Bengali throughout the period from March to November 2021. On the Claimant’s own evidence, the breakdown stemmed in significant part from her trying to report that her colleagues were seeking to leave work early in June 2021 at which point she said that she started to be excluded, ostracised and victimised by Sheba Khanon and Fatima Khatun. She has only referenced five specific incidents where Sheba Khanon and Fatima Khatun spoke in Bengali across the entire period of her employment. On a couple of occasions, they are instances where Bengali is being spoken on the telephone, rather than in conversations directly involving the Claimant. The fact that the Claimant has chosen to document those and to complain about them in these proceedings indicates that she is not being reasonable in complaining about every instance that Bengali was spoken. Victimisation Did the Respondent do those things recorded at letters A-G because the Claimant had done the protected act set out above?[171]We have found that there was no protected act – therefore there can be no victimisation. Detriment in Employment Did the Respondent do those things recorded at letters A-G on the ground that the Claimant had made the protected disclosure set out above?[172]We have found that there was no protected disclosure. Therefore there can be no protected disclosure detriment. Automatic Unfair Dismissal Did the Respondent dismiss the Claimant for the reason (or, if more than one, the principal reason) that the Claimant had made the protected disclosure set out above?[173]There cannot be an automatic unfair dismissal on the ground that the Claimant had made a protected disclosure because we have rejected the only alleged protected disclosure. Limitation In relation to any act occurring prior to 22 April 2022, in so far as it is a contravention of the Equality Act 2010, is it:(a) Part of a course of conduct extending over time?(b) If not, would it be just and equitable to extend the time limit?[174]Had we upheld the Claimant’s various allegations of direct race discrimination and harassment related to race, we would have decided that they formed part of a course of conduct extending over time or alternatively that it was just and equitable to extend time to enable these complaints to be determined on their merits. No prejudice has been caused to the Respondent as a result of any delay in bringing these proceedings. In relation to any act occurring prior to 22 April 2022, in so far as it is a contravention of the Employment Rights Act 1996 was it part of a series of similar acts ending within three months of the start of the period of early conciliation: (a) reasonably practicable for the Claimant to have brought her claim within the time limit? (c) if not, in what further period was it reasonably practicable for her to bring her claim?[175]Had we found that there was protected disclosure detriment in the respects alleged by the Claimant, ending with a failure to renew her contract we would have found that this was part of a series of similar acts. The series ended within three months of the date that early conciliation was started.
Conclusions
[1]The Final Hearing of the Claimant’s Employment Tribunal claim was held on 12, 13, 14 and 18 June 2024. An oral judgment was given at the end of that four-day hearing, dismissing all of the Claimant’s complaints. Judgment was sent to the parties on 25 June 2024 confirming the outcome.[2]On 20 June 2024, in advance of receiving that written outcome, the Claimant applied for written reasons and made an application for reconsideration. The application was set out over 39 digital pages.[3]In addition, in an email dated 1 July 2024, the Claimant argued that “the Respondent had purposely deleted evidence which supports my case and damages theirs. I am concerned that this maybe committing the serious crime of perverting the course of justice … I believe that the delaying tactics employed by the Respondent were a deliberate attempt to not give me sufficient time to thoroughly examine the bundle and the deleted pages were a deliberate attempt to mislead the court”. She attached an email from her solicitor, Ms Philippa Roberts, at Pattinson Brewer to her on 23 March 2023 asking her to read through the attached bundle and let her know if it contained all the documents on which we intended to rely at the final hearing.[4]Written reasons were sent to the parties on 12 July 2024. In addition, the Tribunal drew the Claimant’s attention to the wording of Rule 70, which provides that an application for reconsideration can be made within 14 days of the date on which written reasons are sent to the parties. Since then, the Claimant has sent further emails to the Tribunal in support of the reconsideration application.[5]In the Written Reasons, the Tribunal concluded (at paragraph 162) that the Claimant did not make a protected disclosure in her grievance of 21 and 28 February 2022. This was because the Tribunal concluded that she did not have a genuine belief that the information she was disclosing tended to show a breach of a legal obligation, that health and safety was being endangered or that there was a criminal offence being committed.[6]The Claimant is attempting to challenge that conclusion. She argues that two crucial pages were omitted from the bundle of documents. These, she argues, were two pages of her grievance in February 2022. She says that they follow on from page 154 in the bundle of documents. As a result, she contends that the Tribunal did not have the full version of the grievance before it when assessing whether the grievance document amounted to a disclosure. She says that the missing pages “will prove and demonstrate I made a qualifying/protected disclosure”. In addition, she included a screenshot of an email sent to the GMB Union Rep Kate Jenkins on 4 April 2022 “regarding another disclosure I made, if this so helps”. Finally, the Claimant attached a pre-publication version of an article published in the Industrial Law Journal in March 2010, entitled “Combating Corruption through Employment Law and Whistleblower Protection”.[7]Although the Claimant sent further documents to the Tribunal on 22 July 2024, ostensibly in support of the reconsideration application, these emails do not engage with the terms of the Tribunal’s written reasons. They merely include earlier emails between the parties which predate the Final Hearing, and which could have been included in the Final Hearing bundle, or the subject of an application to the Tribunal if they indicate that other pages should be included. Missing pages[8]As was made clear from paragraph 5 of the Written Reasons, the parties indicated that the bundle of documents before the Tribunal was an agreed bundle. At no point during the course of the four-day Final Hearing did the Claimant indicate that it was incomplete or inaccurate in any respect. Her witness statement cross referred to the pages in this bundle, including to her grievance.[9]If the grievance included within the bundle was an inaccurate or incomplete version, it is unclear why this had not been noted by the Claimant when preparing for the hearing. She had been asked by her solicitor as long ago as March 2023 to check the accuracy of the bundle. It is also unclear how and why the Claimant noted that the version was inaccurate between the last day of the hearing (on Tuesday 18 June 2024) and her email requesting reconsideration on 20 June 2024.[10]In any event, the version attached to the Claimant’s reconsideration application is a different version to the version which is included at pages 151-154 of the bundle. This can be seen from the paragraph starting “There is no planning whatsoever …” on page 154, which runs to 10 lines. The equivalent paragraph in the pages sent to the Tribunal in support of this reconsideration application runs to only 7 lines. The latter version entirely omits the sentence starting “Passenger Assistants, who are dealing with very vulnerable children”. As a result, it is not clear whether the version which was submitted to the Respondent on 28 February 2022 (or potentially 1 March 2022) was the version included in the bundle, or the version now being sent to the Tribunal in support of this reconsideration application.[11]Having agreed the contents of the Tribunal bundle for use at the Final Hearing, it is not now open to the Claimant to rely on additional or different documents not before the Tribunal during the hearing. The document which the Claimant now seeks to rely upon was not referred to by either party during the course of the Final Hearing. It has not been tested in cross examination nor did it form the basis of argument at the end of the hearing.[12]Finally, it is not sufficient for the Claimant to refer to a discrepancy in the documents. She must establish that the discrepancy is of such significance that it is “in the interests of justice” for this new document to be admitted given its potential to lead to a different conclusion on the issue of whether she made a protected disclosure. She does not point to any part of the missing pages to support her argument that she made a qualifying disclosure. Email of 4 April 2022[13]So far as the email on 4 April 2022 was concerned, this was not included in the agreed bundle. As set out in the agreed list of issues, the Claimant was not arguing that a communication on 4 April 2022 was a protected disclosure. This document is not relevant to the issues that the Tribunal had to determine. Furthermore, no explanation has been given as to why this document was not included in the bundle that was before the Tribunal during the course of the Final Hearing. Pre-publication article[14]The Claimant does not explain how she has obtained an earlier draft of the published article. That the Claimant is relying on an earlier draft is shown by the proof reading comments apparently made by one of the authors, the different page numbers on the proof copy and the published copy, and fact that the author’s changes have been implemented by the time of publication (see, for instance, the change from “whistle-blowing” to “whistleblowing” in point (8) on page 8 (which is page 59 in the published version). Furthermore, the Claimant does not explain why this article is relevant to her reconsideration request. Nor does she explain how the contents of this article shows that it is necessary in the interests of justice to reconsider the Tribunal’s Judgment. Accordingly, I do not consider that the Claimant’s reference to the article indicate that there are reasonable prospects of the original decision being varied or revoked.
Conclusion
[15]For all these reasons, there is no reasonable prospect of the original decision being varied or revoked.