Ms S Emmanuel v London Borough of Waltham Forest: 3206241/2021

EMPLOYMENT TRIBUNALS

Case No 3206241/2021

Between

Ms S EmmanuelClaimant

London Borough of Waltham ForestRespondent

Before

Employment Judge Martin

In person for claimant

Ms S Long (instructed by Solicitor) for respondent

Date 7 November 2025

JUDGMENT

The claimant’s complaint of disability discrimination is dismissed upon withdrawal. RESERVED JUDGMENT

[1]The Claimant’s claims of direct race discrimination contrary to s.13 of the Equality Act 2010 are not well founded and are dismissed.

REASONS

[1]By a claim form presented on 6 October 2021, after an ACAS early conciliation period between 21 and 29 September 2021. The ET1 contained claims of disability dissemination and race discrimination. The Claimant withdrew the former at a preliminary hearing before EJ Martin in May 2022 and it was dismissed in a judgment sent to the parties on 9 June 2022. The claim before this Tribunal proceeds solely on the grounds of direct race discrimination.

[2]The Tribunal that the benefit of a 1,778-page bundle prepared in advance of the hearing as the main bundle. Pages from this bundle are noted in this Judgment in square brackets, e.g. [1];

[3]The Tribunal was provided with witness statements from Suzanna Emmanuel, the Claimant. For the Respondent, the Tribunal was provided with witness statements from Anna Saunders, Assistant Director; Cathie Kelly, Integrated Commissioning Manager; Laura Power, Commissioning Lead; Michael Cleary, Head of Integrated Commissioning; Helen Sidwell Interim Director for Well Being; Mandy Hudson, Head of Placements, Supply and Quality; and Sunita Sharma, Human Resources Advisor. There was also a Supplementary Statement from Anna Saunders.

[4]Ms Power and Ms Sharma did not give evidence so the Tribunal considered carefully what weight should be given to their unsworn and untested evidence.

[5]References to witness statements are designated as witness initial followed by paragraph number, e.g. [SE 1] for the Claimant’s witness statement, paragraph one. If there is no paragraph number, the page is specified.

The Hearing

[6]This hearing was originally listed as an in-person hearing. It was converted to CVP at short notice owing to a lack of judicial availability to hear in-person cases at London East Employment Tribunal.

[7]The Respondent had delivered hard copies of the bundle to the employment Tribunal, expecting this to be an in-person hearing.

[8]On Day 1 of the hearing, the Claimant did not have access to the electronic bundle. There were problems with sending the file as it was too big. The Respondent’s counsel also explained that there was some additional material covering the Claimant’s contract, supervision notes, leave policy, ACAS, organisational charts with ethnicity. The Claimant also had some pages missing from her electronic bundle. The Respondent’s solicitor made attempts to get this material to the Claimant and the hearing was adjourned until 14:00 to allow for this to happen.

[9]The hearing reconvened at 14:00, by which time the Claimant had received the additional material but not the missing pages, which were 1573 to 1718 and 1736 to 1778. She agreed to go ahead with the hearing, as time was limited and adjourning the case would have led to unacceptable delay. It was agreed that the information from the missing pages, if it needed to be referred to, could be read out by the Judge in order for it to be impartial.

[10]At the start of Day 2 of the hearing, the Claimant had most but not all of the bundle. She was still missing pages 1772-1778. These were documents relating to ethnicity within the Respondent’s organisation. The Respondent’s counsel was able to share these on the screen so the Claimant could see them. The Claimant doubted the veracity of these documents but did have sight of them during the hearing.

[11]The Tribunal was satisfied that it was in the interests of justice to proceed with the hearing as any adjournment would lead to unacceptable delay, and issues regarding the missing pages could be overcome by the Tribunal reading out any relevant parts before any of the witnesses (including the Claimant) answered questions relating to those pages.

[12]The parties were offered the chance to provide written submission, make oral submissions, or both. The Claimant provided written submissions and said everything she wanted to say was contained in that document. The Respondent’s counsel chose to make oral submissions only.

The Issues

[13]The issues for the Tribunal to determine at the final hearing were as follows:

[14]Direct race discrimination (s.13 Equality Act 2010) 1. Did the Respondent do the following things? 1.1. On 2 March 2021, Ms Kelly asked the Claimant: ‘what is on the top of your head?’ 1.2. Ms Kelly refused to give the Claimant an honorarium payment, which the Claimant asked for in mid-April 2021. 1.3. At a probation meeting in early June 2021, Ms Kelly told the Claimant that she had a problem with her attitude and behaviour; she extended her probation by four weeks. This was in breach of the probation policy. 1.4. At the same meeting, Ms Kelly told the Claimant that she would be put on a performance improvement plan (PIP). This was in breach of the probation policy. 1.5. On 22 June 2021, Ms Kelly told the Claimant that she had breached the dress code for not wearing a bra in a Teams meeting on 18 June 2021 (Comparator: Ms Kelly in relation to her showing the Claimant her left breast on Teams). 1.6. On 28 June 2021, Ms Kelly sought feedback on the Claimant from other Integrated Commissioning Managers. 1.7. At a meeting on 28 July 2021, Ms Power told the Claimant that she had missed deadlines and could not handle multiple tasks. 1.8. At a meeting on 29 July 2021, Ms Power extended the Claimant’s probationary period by 12 weeks. This was in breach of the probation policy. 1.9. In subsequent meetings, Ms Power berated and belittled the Claimant, by: 1.9.1. calling her ‘challenging and aggressive’; 1.9.2. accusing her of threatening behaviour; 1.9.3. stating that the Claimant needed ‘spoon-feeding’. 1.10. On 1 September 2021, Ms Power put the Claimant on a PIP; the objectives could not be achieved because they were not SMART. This was in breach of the probation policy. 1.11. After the PIP was put in place, the Claimant’s workload was increased with no support. 1.12. Helen Sidwell, in cahoots with Anna Saunders, instructed Pauline Campbell (Chair REN) to stop assisting or advising the Claimant in around September 2021. 1.13. On or around 22 September 2021 Ms Saunders refused the Claimant’s request to be line managed by Ms Janice Richards. 1.14. By 6 October 2021 Ms Mandy Holland-Martin still had not provided an outcome to the Claimant’s complaint under the Fairness at Work policy. 1.15. The Respondent constructively dismissed the Claimant. 1.16. After the Claimant resigned, Ms Power told the Claimant that she had to leave on 8 October 2021.15. 2. Was that less favourable treatment? 2.1. The Tribunal will decide whether the Claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the Claimant’s. 2.2. If there was nobody in the same circumstances as the Claimant, the Tribunal will decide whether she was treated worse than someone else would have been treated. 2.3. The Claimant says she was treated worse than Sabila Hafejee and Cathie Kelly.

16. 3. If so, was it because of race?

17. 4. Were the individual discrimination complaints made within the time limit in s.123 of the Equality Act 2010? The Tribunal will decide: 4.1. Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates? 4.2. If not, was there conduct extending over a period? 4.3. If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period? 4.4. If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide: 4.4.1. Why were the complaints not made to the Tribunal in time? 4.4.2. In any event, is it just and equitable in all the circumstances to extend time?

18. 5. As for the discriminatory constructive dismissal, time runs for the claim from the date of the acceptance of the repudiatory breach (the resignation), not from the date or dates of the individual discriminatory events.

19. 6. In relation to the claim of discriminatory constructive dismissal, the Tribunal will determine the following questions, having regard to the EAT’s guidance in De Lacey v Wechseln Ltd (t/a The Andrew Hill Salon)

[2021] IRLR 547

. 6.1. Did the alleged acts, set out above, prior to the Claimant’s resignation occur, whether or not they were acts of discrimination? 6.2. If so, did they amount, singly or cumulatively, to a breach of the implied term of trust and confidence? 6.3. If some of those acts were acts of discrimination, and some were not, did the discriminatory matters sufficiently influence the overall repudiatory breach so as to render the constructive dismissal discriminatory? 6.4. If so, did the Claimant resign in response to the breach? 6.5. Before she resigned, did she affirm the contract? Background and Facts

[20]The Tribunal determined and set out the following facts and background. Further detailed findings of fact are recorded in relation to the individual issues before this Tribunal set out in the ‘Deliberation’ section below. The Tribunal has not set out a full chronological history of the Claimant’s employment with the Respondent and has only focused on key dates or events that are relevant to the List of Issues.

[21]The Claimant commenced employment as a Commissioning Support Officer [PO2 grade] with the Respondent on 1 March 2021. Her contract is at [171].

[22]The Claimant had her first meeting with line manager, Cathie Kelly, via Teams on 2 March 2021. At this meeting, the Claimant alleges Ms Kelly made an inappropriate comment about her hairstyle, saying “What’s on top of your head?”. This forms the basis of issue 1.1. The Claimant was also introduced to the Integrated Managers via Teams during early to mid-March [SE 3].

[23]Sabila Hafejee joined the Respondent in the same role and grade as the Claimant [SE 4] at the end of March. Ms Hafejee is of Asian descent. The Claimant applied for a PO4 role (a promotion) around the end of March but was not shortlisted [SE 5]. Around mid-April, the Claimant and Ms Hafejee were asked to manage a SEND contract each [SE 8 – 9]. The Claimant considered that she (and Ms Hafejee) should be paid an honorarium payment for this work, and raised concerns about this [SE 9] [CK 10–12]. This forms the basis of issue 1.2.

[24]There was a meeting between the Claimant and Ms Hafejee and Michael Mr Cleary on 18 May 2021 regarding honorarium and contract management [SE 10–13]. Mr Cleary later expressed concern about the meeting’s purpose and sent an email setting out his concerns to the Claimant, her line manager, Ms Kelly, Ms Hafejee and Ms Saunders. [184]. This lead to a meeting between Ms Kelly and the Claimant and Ms Hafejee on 19 May 2021. The Claimant says Ms Kelly accused the Claimant and Ms Hafejee of “ambushing” Mr Cleary [SE 15].

[25]Around the end of May 2021, the Claimant contacted Debbie Richards (Commissioning Manager) to request some well-being information [SE 16]. The Claimant asked Debbie Richards to keep their conversation confidential and not to discuss this with her managers. Debbie Richards advised that she had to let the information be known that the Claimant had contacted her. Ms Kelly responded by requiring the Claimant to complete a WorkRelated Stress Tool [SE 17; Hearing Bundle, pp. 302–304].

[26]The Claimant’s 12-week probation review was conducted by Ms Kelly on 4 June 2021. A record of this meeting is in the bundle at [189 – 199]. This record is undated, however, it does state that it is the 12-week probation review, and that the Claimant’s employment commenced on 1 March 2021. 12 weeks from that date would have expired on 25 May 2021. It is reasonable that a review would take place within a week or so of this, which fits with the 4 June 2021. the Claimant’s witness evidence is that the meeting took place in “early June” [SE 19] and this is consistent with Ms Kelly’s evidence that this meeting took place on 4 June 2021 [CK 16]. the Tribunal is satisfied that the date of meeting was 4 June 2021.

[27]At this meeting, the Claimant was told by Ms Kelly that she [Ms Kelly] had issues with the Claimant’s attitude and behaviour. Ms Kelly said she would be placing the Claimant on an improvement plan [SE 19] [CK 16] [189 – 199]. The Claimant disputed the plan. This forms the basis for issues 1.3 and 1.4. There was a three-way meeting between the Claimant, Ms Saunders and Ms Kelly on 18 June 2021 to revise the probation review [SE 21] [AS 6] [CK 18] [305].

[28]On 22 June 2021 Ms Kelly alleged the Claimant breached the dress code by not wearing a bra during a Teams meeting [SE 22] [CK 19]. The Claimant disputed this, and this forms the basis for issue 1.5.

[29]Around 23 June 2021, the Claimant’s improvement plan was updated and revised with additional training modules 28 June 2021. A meeting was set up to discuss this, but the Claimant declined the meeting with Ms Saunders [SE 27 – 29] [AS 11].

[30]On 29 June 2021, Ms Kelly sought feedback from other managers about the Claimant’s performance [SE 30] [CK 25] [227]. This forms the basis of issue 1.6. Ms Saunders and REN agreed to change the Claimant’s line manager to Laura Power [AS 12; CK 27], and so Ms Power became the Claimant’s line manager 30 June 2021 [LP 3] [AS 12]. The Claimant disputes that this was done with her consent, but this is not an issue for this Tribunal.

[31]The Claimant was on leave between 15 and 20 July 2021. During this time, Ms Kelly and Kate Delaney, another manager, raised concerns about missed deadlines and poor-quality work [LP 18–19]. On the Claimant’s return to work on 22 July 2021, Ms Power raised performance concerns in a supervision meeting with the Claimant [LP 19] [416 – 420]. The Claimant denied missing deadlines, and this forms the basis of issue 1.7. As a result of discussions between the power and the Claimant, Ms Powell investigated the allegations that the Claimant had missed deadlines and presented findings from her review of performance issues on 28 July 2021 [LP 27] [436–441].

[32]The Claimant had her 20-week probation review on 29 July 2021 [LP 28]. At this review meeting, her probation was extended by 12 weeks [SE 38]. This forms the basis of issue 1.8

[33]The Claimant submitted her first Fairness at Work grievance on 3 August 2021 [SE 39] [523].

[34]The letter confirming the extension of the Claimant’s probation period was not issued until 31 August 2021 [606–609]. A revised improvement plan was issued to the Claimant on 1 September 2021 [610–613]. This forms the basis of allegation 1.10. The Claimant admitted a second Fairness at Work grievance on 8 September 2021 [SE 42] [663–668].

[35]On 20 September 2021, Claimant raised concerns to Ms Saunders about the breakdown of the relationship between the Claimant and Ms Power [846]. The Claimant says that she requested a change in her line manager [SE 44] and this forms the basis of issue 1.13.

[36]A probation progress letter was sent by Ms Power to the Claimant on 23 September 2021 [LP 58] [789–790].

[37]A dismissal bundle was prepared by Ms Power [LP 60] [1417–1435] on or around 1 October 2021. Before the Respondent could take any action in respect of this, the Claimant resigned on 4 October 2021 [SE 46] [1440– 1444].

[38]The Fairness at Work outcome report was sent to the Claimant on 5 November 2021 [SE 47] [1491]. This was outside of the timeframe specified in the policy, and this forms the basis of allegation 1.14.

[39]The Claimant entered early conciliation with ACAS 21 September 2021 and the early conciliation certificate was issued on 29 September 2021. The Claimant submitted her ET1 on 6 October 2021.

The Law

[40]Direct discrimination (s.13 Equality Act)

[41]The Claimant’s claims were brought under s. 13 of the Equality Act 2010: “A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”

[42]The protected characteristic relied upon was that of race.

[43]The comparison that the Tribunal had to make under s. 13 was that which was set out within s. 23 (1): “On a comparison of cases for the purposes of sections 13, 14 or 19, there must be no material difference between the circumstances relating to each case.”

[44]The Tribunal approached the case by applying the test in Igen v Wong

[2005] EWCA Civ 142

to the Equality Act’s provisions concerning the burden of proof, s.136 (2) and (3).

[45]In order to trigger the reversal of the burden, it needed to be shown by the Claimant, either directly or by reasonable inference, that a prohibited factor may or could have been the reason for the treatment alleged. It was not necessary to demonstrate that the only inference which could have been drawn was a discriminatory one (Pnaiser v NHS England

[2016] IRLR 170

). More than a difference in treatment or status and a difference in protected characteristic needed to be shown before the burden would shift. The evidence needed to have been of a different quality, but a Claimant did not need to have to find positive evidence that the treatment had been on the alleged prohibited ground; evidence from which reasonable inferences could be drawn might suffice. Unreasonable treatment of itself was generally of little helpful relevance when considering the test. The treatment ought to have been connected to the protected characteristic. What the Tribunal were looking for was whether there was evidence from which the Tribunal could conclude, either directly or by reasonable inference, that the Claimant had been treated less favourably than others not of his race, religion or disability, because of his race, religion or disability. Unexplained, unreasonable conduct, as in Law Society v Bahl

[2003] IRLR 640

, was not, of itself, enough.

[46]The test within s.136 encouraged the Tribunal to ignore the Respondent’s explanation for any poor treatment until the second stage of the exercise. The Tribunal were permitted to take into account its factual evidence at the first stage, but ignore explanations or evidence as to motive within it (see Madarassy v Nomura International plc

[2007] EWCA Civ 33

and Osoba v Chief Constable of Hertfordshire [2013] EqLR 1072). At that second stage, the Respondent’s task would always have been somewhat dependent upon the strength of the inference that fell to be rebutted (Network Rail v GriffithsHenry

[2006] IRLR 856

, EAT). That was an analytical process, not an evidential one.

[47]In situations where the burden did shift, a Respondent needed to show that the treatment was “in no sense whatsoever” because of the protected characteristic (Igen). The Tribunal needed to find cogent evidence in support of the Respondent’s non-discriminatory explanation for the treatment focussing, as suggested in Bennett v MiTAC Europe Ltd

[2022] IRLR 25

, on the mind of the putative discriminator.

[48]If the Tribunal had made clear findings of fact in relation to what had been allegedly discriminatory conduct, the reverse burden within the Act may have had little practical effect (per Lord Hope in Hewage v Grampian Health Board

[2012] UKSC 37

, at paragraph 32). Similarly, in a case in which the act or treatment was inherently discriminatory, the reverse burden would not apply.

[49]When dealing with a multitude of discrimination allegations, a Tribunal was permitted to go beyond the first stage of the burden of proof test and step back to look at the issue holistically and look at 'the reasons why' something happened (see Fraser v Leicester University

UKEAT/0155/13/DM

). In Shamoon v Royal Ulster Constabulary

[2003] UKHL 11

, the House of Lords considered that, in an appropriate case, it might have been appropriate to consider ‘the reason why’ something happened first, even before addressing the treatment itself.

[50]As to the treatment, the Tribunal had to remember that the legislation did not protect against unfavourable treatment per se but less favourable treatment. Whether the treatment was less favourable was an objective question. Unreasonable treatment could not, of itself, be the basis for an inference of discrimination, but the worse the treatment, particularly if unexplained, the more possible it may have been for such an inference to have been drawn (Law Society v Bahl

[2004] EWCA Civ 1070

[51]The Tribunal reminded itself of Sedley LJ’s well-known judgment in the case of Anya v University of Oxford

[2001] ICR 847

which encouraged reasoned conclusions to be reached from factual findings, unless they had been rendered otiose by those findings. A single finding in respect of credibility did not, it was said, necessarily make other issues otiose. Deliberation

[52]The Tribunal considered each of the issues contained in the agreed List of Issues in turn.

[53]1.1. On 2 March 2021, Ms Kelly asked the Claimant: ‘what is on the top of your head?’

[54]This is factually disputed between the Claimant and Respondent. The FAW investigation states “I do however feel that the comments about SE hair so early on in the relationship were wrong, however worded, and could amount to microagression” [902]. Ms Kelly apologised 24 November 2021 [1497]. This is, however, not the issue for the Tribunal. The issue is, did she say the words “what is on the top of your head?”.

[55]The Tribunal considered both accounts of what transpired during this meeting. Ms Kelly went into a lot of detail about how the Claimant’s hair had looked on the day in question. The Tribunal found her to be a credible witness.

[56]The Tribunal did not accept the Claimant’s evidence on this point. She never raised any concerns with the Respondent about comments from Ms Kelly at the time, and the Tribunal felt this undermined her evidence. As explained later in this Judgment, the Tribunal also found the Claimant’s evidence to be unreliable in other areas, and this raised questions of the reliability of her evidence as a whole.

[57]The FAW evidence supports Ms Kelly [1058] and the Tribunal finds that she has been consistent throughout her recollections of this meeting. Her account was consistent and believable. The Tribunal finds that she did make a comment about the Claimant’s hair. Her intention was to be friendly and polite. The Tribunal is satisfied this was the case. The Tribunal preferred the evidence of Ms Kelly to the Claimant’s evidence, and finds that Ms Kelly did not make the comment “what is on the top of your head?”.

[58]The Tribunal makes a finding of fact that this comment was not said and therefore this cannot be discrimination on the grounds of race. The Claimant’s claim in relation to this issue fails. 59. 1.2. Ms Kelly refused to give the Claimant an honorarium payment, which the Claimant asked for in mid-April 2021.

[60]The Tribunal is satisfied that the Respondent did refuse to give the Claimant an honorarium payment which she had asked for in mid-April 2021. This is an agreed fact. What is in dispute, however, is the Respondent’s reason or reasons for doing this.

[61]The Tribunal accepted the evidence of Mr Cleary and found that the Respondent’s position was that the Claimant and Ms Hafejee had responsibilities for a single contract for an interim period only. The Tribunal accepted that they were supporting, not managing, this contract [MC8]. This was not equivalent to PO4 work, which would involve managing a portfolio of contracts [CK11]. The Tribunal finds that the Respondent’s rationale for not making the payment was that the Respondent was satisfied that the Claimant was not doing a contract manager role and therefore did not qualify for such a payment. This was the consistent opinion of both Ms Kelly [CK10 – 12] and Mr Cleary [MC8].

[62]It is not for the employment Tribunal to decide if the Claimant’s role was equivalent to a manager role. This is a management decision for the Respondent, and the Respondent had discretion to make the decision it did.

[63]There is no evidence on which the Tribunal could reverse the burden of proof, but even if there had been, the Tribunal also considered it important to note that Ms Hafejee, who was doing the same interim additional work as the Claimant, did not get the payment either [200]. Ms Hafejee is of a different ethnicity to the Claimant. The Claimant was therefore not treated differently because of her race or ethnicity.

[64]This issue in the Claimant’s claim is not made out and therefore fails.

[65]1.3. At a probation meeting in early June 2021, Ms Kelly told the Claimant that she had a problem with her attitude and behaviour; she extended her probation by four weeks. This was in breach of the probation policy.

[66]The Tribunal accepts the evidence of Ms Kelly, who came across credible witness in relation to this issue, that she did raise an issue with the Claimant regarding her attitude at work during this probation meeting [CK16].

[67]The Tribunal notes that this meeting was a mid-probation review, as confirmed by [189 – 199]. The raising of concerns is not a breach of the policy and is permitted under the policy [914]. Paragraph 5.4 permits Improvement Action Plans where appropriate.

[68]The Tribunal went on to make a finding that the Claimant probation not extended at this meeting. The penultimate page of the probation assessment [P205] shows that the outcome is “proceed to next page will probation (12 weeks only). This shows that the Claimant probation period was not extended.

[69]The Tribunal is therefore satisfied that the Claimant’s probation was not extended as alleged. This element of the Claimant’s claim therefore fails as the factual allegations are not made out.

[70]1.4. At the same meeting, Ms Kelly told the Claimant that she would be put on a performance improvement plan (PIP). This was in breach of the probation policy.

[71]As noted above, the raising of concerns is not a breach of the policy and is permitted under the policy [914]. Paragraph 5.4 permits Improvement Action Plans where appropriate. The policy states: “A completed Improvement Action Plan is a supportive measure the Council will expect its managers to put in place for their staff on probation to succeed, in order to ensure an objective and consistent management of probation” [151, 914].

[72]The Tribunal is satisfied that an Improvement plan is not a less favourable treatment. This is a mid-probation Improvement Plan, designed to help the Claimant pass her probation.

[73]The Claimant accepted in cross-examination that Performance Improvement Plans were designed to help people improve, but she did not accept that that was the case in relation to the Performance Improvement Plan implemented for her.

[74]On 14 June, the Claimant emailed Ms Saunders [200 – 201] raising concerns about how her probation review [AS 5]. As a result of this, a threeway meeting with the Claimant, Ms Kelly and Ms Saunders was arranged and this took place on 18 June. During that meeting, Ms Kelly shared the 12-week review form on screen [AS 6] and amendments were made to the review form. The content of the Performance Improvement Plan was also discussed, and Ms Saunders believed that the Claimant was happy with what had been agreed [AS 6]. The Claimant’s line manager was also changed to Ms Power.

[75]During cross-examination, the Claimant accepted that there was nothing in the revised Performance Improvement Plan which was too demanding. Her evidence was “I fulfilled it”. It was put to her that there was nothing in the plan beyond her capabilities, which she accepted, but said such a plan “should be to improve someone”. When it was put to her that her case was that the Respondent didn’t want her to improve, she agreed that was the basis of her case in relation to this issue, based on the fact that the improvement plan did not contain ‘SMART’ objectives.

[76]This is in contrast to the contemporaneous documents. On 18 June 2021, the Claimant said in an email [208] to Ms Saunders, copied to Ms Kelly, “Thank you so much for your time today, I too found it really helpful and appreciate all the help and support from the Team”. In cross-examination, she denied this was in relation to the performance plan but said she was commenting on the meeting that had taken place between herself and Ms Campbell in her role as chair of REN. In cross-examination, when specifically asked what it was that the Claimant was saying was helpful, she said it was the meeting with REN.

[77]This REN meeting, however, did not take place until 7 July 2021 [346]. The Claimant, therefore, could not have been referring to this meeting in her email of 18 June [208]. The Tribunal is satisfied that she was commenting on the three-way meeting between herself, Ms Kelly and Ms Saunders which had taken place on the same day, at which the performance improvement plan have been revised. The Tribunal is satisfied that the contemporaneous documents show that the Claimant had no issues with this revised Performance Improvement Plan. The Tribunal found the Claimant’s evidence to be evasive and not credible in relation to this issue.

[78]The Claimant further said in cross-examination that the reason she was put on a Performance Improvement Plan was because she had requested the honorarium payment. Her case is that the honorarium payment was refused due to her race, and therefore the implementation of the Performance Improvement Plan is also an act of race discrimination. The Tribunal is satisfied that there is no evidence to support that the Performance Improvement Plan was linked to the refusal to pay the honorarium payment. The Claimant was picked up in her probation review for raising matter of the honorarium payment with Mr Cleary in a meeting that was supposed to be about application feedback, and therefore the Respondent felt that her raising the honorarium payment issue during that meeting was inappropriate. That is a separate issue from the decision not to pay it.

[79]In any event, the Tribunal has found that the Respondent refusal to pay the honorarium payment was not due to the Claimant race. There is no evidence to suggest that the implementation of a Performance Improvement Plan, which is not a breach of the probation policy in any event, was because of the Claimant race.

[80]The Tribunal further notes that Ms Hafejee was also picked up during her probation review meeting regarding the issue in respect of the honorarium payment and her raising this with Mr Cleary when she should have gone to her line manager about this. It is the same issue that was raised in the Claimant’s probation review. The Tribunal finds that the Respondent was consistent in how it treated both the Claimant and Ms Hafejee in respect of this issue. There is no evidence the Claimant was treated differently, and no evidence that this was due to her race.

[81]The Tribunal further notes that, in any event, the performance improvement plan was “put to one side” by agreement on 13 July 2021 [364].

[82]1.5. On 22 June 2021, Ms Kelly told the Claimant that she had breached the dress code for not wearing a bra in a Teams meeting on 18 June 2021 (Comparator: Ms Kelly in relation to her showing the Claimant her left breast on Teams).

[83]As found above, this factually did happen. Both Ms Kelly’s witness statement and the contemporaneous documents say that the Kelly did this because she was concerned that “service users are vulnerable individuals and can be highly sexualised” [CK 20]. This comment, or one very similar to it, was confirmed by the Claimant when she complained to Ms Saunders about Ms Kelly’s actions [212].

[84]It is agreed by the parties that no action was taken against the Claimant for this alleged breach of the dress code. She therefore cannot have been subjected to less favourable treatment because of the allegation. The Tribunal rejects the argument that making the allegation itself is less favourable treatment. Ms Kelly’s evidence on this point was credible when she said that she wanted to protect the Claimant from possible sexualised behaviour from service users. This is supported by the contemporaneous documents [210 – 212] which show that she gave this reason. There are further consistencies with Ms Kelly’s evidence. Ms Saunders was asked about what the Claimant was wearing and she (the Claimant) said it was a vest top. This is consistent with what Ms Kelly said. The Tribunal makes no finding as to whether or not the Claimant was in breach of any dress code policy, but does accept that Ms Kelly acted to protect the Claimant. This was her motivation for raising an allegation of breach of the dress code.

[85]Even if this was not the case, the Tribunal does not accept that the Claimant was treated any differently to how someone who was of a different race would be treated. The Tribunal accepts the evidence that Ms Kelly would have raised a concern about anyone of any race when she suspected there had been a breach of the dress code, when her motivation was to safeguard them from potential issues with service users. The comment had nothing to do with the Claimant’s race.

[86]In any event, the Claimant comparator for this issue is Ms Kelly herself. On 23 June 2021, the Claimant made a formal complaint against Ms Kelly [215] for Ms Kelly breaching the dress code in relation to a meeting that took place in early April 2021. The Tribunal accepts the evidence of Ms Kelly that there was an investigation and disciplinary process, and some action was taken. No action was taken against the Claimant in relation to any alleged breach of the dress code, so the Tribunal did not need to hear what the outcome was in relation to Ms Kelly. There was, however, some action taken against Ms Kelly but no action taken against the Claimant. The Claimant cannot be said to have been treated less favourably than Ms Kelly.

[87]The Claimant’s complaint against Ms Kelly in relation to a breach of the dress code was only made after Ms Kelly had made that criticism of the Claimant. The incident involving Ms Kelly took place in early April 2021. Both Ms Kelly and the Claimant confirmed in their evidence that they laughed about it at the time and confirmed by the Claimant at [595]. Kelly was not on probation at the time. The Claimant only makes a complaint about this after a complaint has been made about her, which the contemporaneous documents also confirm on 26 August 2021 [595]. The Tribunal is satisfied that the Claimant did not think anything of the incident involving Ms Kelly at the time, and her subsequent reporting of it was clearly retaliatory.

[88]1.6. On 28 June 2021, Ms Kelly sought feedback on the Claimant from other Integrated Commissioning Managers.

[89]The Tribunal is satisfied that Ms Kelly did seek feedback on the Claimant from other Integrated Commissioning Managers. Both Ms Kelly’s witness statement [CK 25] and the contemporaneous email [227] confirm this was done. This was entirely proper and sensible and was part of the Claimant’s ongoing probation. The Tribunal is satisfied that this was not done with intent to harm the Claimant and cannot see how it can be alleged that it can be so.

[90]The Claimant says no feedback sought for Ms Hafejee [SE 30], but the documentary evidence shows that this is not correct. Feedback in relation to Ms Hafejee was sought on 19 July 2021 [1605]. This is because Ms Hafejee’s 20-week review was taking place a few weeks later than the Claimant’s 20-week review, due to the fact that Ms Hafejee started later than the Claimant. The Claimant confirmed in her witness statement that Ms Hafejee started after Claimant [SE 4].

[91]This is not less favourable treatment. It is proper and appropriate that the Respondent would seek feedback of this sort. There is no evidence that this is for some malicious feedback. There was both positive and negative feedback. [226-228; 245-247; 320-323; 315-319; 349-353; 411-415].

[92]The Tribunal is therefore satisfied that this was not less favourable treatment, but even if it was, this treatment was applied equally to Ms Hafejee, who is of a different race to the Claimant. The Tribunal is therefore satisfied that this treatment was not because of the Claimant’s race.

[93]1.7. At a meeting on 28 July 2021, Ms Power told the Claimant that she had missed deadlines and could not handle multiple tasks.

[94]The Tribunal is satisfied that Ms Power did raise this criticism of the Claimant. The Claimant was on leave from 15 to 20 July. Whilst she was away, Ms Power was contacted by Kate Delaney (one of the Integrated Commissioning Managers) who said that the Claimant had not completed a Data Protection Impact Assessment (DPIA) by the deadline of 16 July [LP 18]. Ms Power was further contacted by Ms Kelly, who said the Claimant had not effectively completed a data collection task [LP 18]. Ms Kelly also gave evidence that she had also raised concerns about the notes taken by the Claimant on 12 July 2021 [CK 33] [LP 18]. Ms Power raised these issues with the Claimant in a supervision meeting on to 22 July 2021. The Claimant denied the allegations. A three-way meeting was proposed in order to discuss this, which the Claimant initially agreed to but later declined [423]. Ms Power then sought advice from HR, which is confirmed at [421 – 424], and she also asked for the information provided by Ms Kelly to be put in writing [442 – 447; 448 – 450].

[95]At a meeting on 26 July 2021, the Claimant agreed for Ms Power to look into the issues [436]. The review is in the bundle at [437 – 441]. The Claimant did not agree with the outcome of this review and said she would produce her own timeline.

[96]An email of 17 June from Ms Kelly to the Claimant [1516] shows that the Claimant had been asked to implement a deadline of 22 June. In crossexamination, she was asked if she had provided this email to Ms Power as part of her investigation. The Claimant answered “Yes, I think so”. The investigation by Ms Power, however, shows that it was Ms Kelly who provided this email [442]. An email from the Claimant dated 17 June [1508] shows that she was aware of this deadline. She was asked in crossexamination if she had permitted to send this to Ms Power to assist with the investigation, the Claimant answered “I didn’t intentionally”. Ms Kelly’s email of 23 June (after the deadline had passed) shows that Ms Kelly was chasing the Claimant for the information should be provided.

[97]The Tribunal was also referred to a task that the Claimant had been order to complete in relation to a contract and her involvement with Ms Delaney in relation to this. Ms Delaney had emailed the Claimant on 29 June with a table of tasks hearing what needed to be done and what had not yet been completed [399]. It was again put the Claimant in cross-examination that she did not include this email from Ms Delaney in the information she supplied to Ms Power. The Claimant disagreed with this. The Claimant was then referred to [445] which says that Ms Delaney herself provided this email. The Claimant then accepted that point. The Tribunal once again found her evidence to be contradictory and not credible.

[98]The Tribunal is satisfied that the Claimant only provided Ms Power with emails that did not include reference to deadlines or missed tasks. The Claimant was selective in what she provided. Her answers in crossexamination on this point were evasive, and the Tribunal did not find her evidence that she had in fact completed the tasks and adhered to the deadlines to be credible.

[99]The Tribunal is satisfied that Ms Power considered the evidence of Ms Kelly and Ms Delaney, and email chains that they provided. This was then put to the Claimant. Two managers said the Claimant’s work was not of the required standard, and Ms Power found there was a clear deadline, and the Claimant did not adhere to the deadline. Ms Power further found that Ms Kelly was the one doing all the chasing.

[100]The Tribunal is therefore satisfied that Ms Power was basing her comments regarding missed deadlines on facts supported by documentary evidence. Ms Power had formed the conclusion that the Claimant could not handle multiple tasks based on the comments, again supported with evidence, of Ms Kelly and Ms Delaney. The Tribunal is satisfied that this is ‘the reason why’ such comments were made.

[101]In cross-examination, the Claimant said that Delaney’s criticism was motivated by race. She said that three white managers (Ms Kelly, Ms Power and Ms Delaney) were all looking for things to fault her on in order to make a case to have her dismissed. The Tribunal (as found above) considered the Claimant’s evidence in relation to the deadlines to be unreliable and further found that her assertion that the criticism of her by Ms Kelly, Ms Power and Ms Delaney was motivated by race to be unreliable and unsustainable. There is no evidence to suggest that this is the case and the idea is implausible.

[102]The Tribunal is further satisfied that a person of a different race the Claimant but with the same issues in relation to their performance would have been treated no differently to the Claimant. This aspect of the Claimant’s claim 103. 1.8. At a meeting on 29 July 2021, Ms Power extended the Claimant’s probationary period by 12 weeks. This was in breach of the probation policy.

[104]On 29 July 2021, Ms Power confirmed to the Claimant that the Claimant’s probation would be extended by 12 weeks. This is not a breach of the Probation Policy. The Probation Policy confirms at 6.3.2. “where the employee has not demonstrated the expected standards of performance, but where there is evidence that with further reasonable training and/ or supervision, they can improve to meet the expected standards” [916].

[105]Ms Power sought advice from HR [288 – 292], prior to this. The advice from HR was that the Probation Policy allowed for three outcomes; confirm the employment (ending the probation period), dismiss the employee, or extend probation. Ms Power was clear in her evidence [LP 25] that she thought about dismissing the Claimant, and the Tribunal is satisfied that this is something she would have been entitled to do under the policy.

[106]In cross-examination, the Claimant was asked whether or not she agreed that her probation could legitimately be extended by the Respondent. Her answer was “for exceptional reasons”. She subsequently conceded that the policy does not say “exceptional”, but he said there must be reasons. She went on to say “the circumstances didn’t apply to me”.

[107]The reasons for extending the Claimant’s probation were set out in her 20- week probation review form [490 – 499]. The Tribunal is satisfied that this was a lengthy and comprehensive review.

[108]A meeting was then held on 2 August 2021 between the Claimant and Ms Power. [621 – 628]. During the meeting, the Claimant asked about the reasons for extending her probation. Ms Power explained that these been set out in the 20-week review form, at which point the Claimant said “I stopped reading to be fair” [626]. The Tribunal finds that this is indicative of the Claimant’s non-acceptance of any of the constructive criticism that had been fed back to her.

[109]There was no requirement for there to be anything “exceptional”, as suggested by the Claimant in her cross-examination. The Claimant has either misunderstood her policy or applied her own interpretation to it, which is not one that is supportable.

[110]As per the findings above, the Tribunal is satisfied there were performance issues in relation to the Claimant’s work. This was a justifiable reason for the Respondent to extend her probation period. There is no prima facie evidence that this is discriminatory.

[111]Even if that were the case, for the Claimant’s case to succeed, the correct comparator would be non-black employee who also had a performance issues. The Tribunal is satisfied that the probation period of such a person will also be extended, if they were not dismissed, and as such the Claimant has not been treated less favourably because of her race. 112. 1.9. In subsequent meetings, Ms Power berated and belittled the Claimant, by: 1.9.1. calling her ‘challenging and aggressive’; 1.9.2. accusing her of threatening behaviour; 1.9.3. stating that the Claimant needed ‘spoon-feeding’.

[113]The Tribunal considered when it was that each of the alleged comments had been said, if they had been, and in what context.

[114]The Claimant’s email to Laura on 29 July 2021 [470 – 471] says “During our meeting you stated that you find it ‘challenging’ to discuss performance related concerns with me”. The wording of the Claimant’s own email says that the comment was “challenging” [471] in relation to discussing performance -related concerns. The Tribunal finds that the use of this word is in relation to the discussion, not the Claimant’s behaviour or personality. The Tribunal is satisfied that this was the way in which Ms Power viewed the situation. There is no evidence that the Claimant was ever called “challenging”.

[115]Ms Power sets out her position in response to the Claimant email by a reply dated the same day [472]. Ms Power described how she felt the Claimant “shut down the conversation which makes it hard for us to creatively think around the issue”. This contemporaneous evidence is consistent with her witness statement, where she says that she did not tell the Claimant she personally was “challenging” but did say that the communication between them was “challenging”.

[116]The word “challenging” is also contained in Ms Power’s probation report [497] but the context is “Aside from work deadlines, there are things Suzanna could have done differently to achieve optimal performance on these tasks, but it was challenging to move forward in discussing that due to the focus on proving that tasks had been completed”. The word is used to describe the difficulties in moving forward and is not used as a descriptor of the Claimant personally.

[117]The Tribunal found that, despite Ms Powers evidence not being tested and she was not able to be cross-examined, it was nonetheless consistent with the contemporaneous documents, which include both the email above and the Claimant’s 20-week privation review form [497]. The Tribunal found that her statement was credible on this point and finds that she did not use the word “challenging” to refer to the Claimant personally.

[118]In relation to accusations of threatening behaviour, the Claimant’s case is that she “was labelled threatening and a challenge as many black women are when they are articulate and passionate in what they do and highlight inaccuracies and are passionate within their work” [SE witness statement p10]. The word “threatening” is used in the meeting between the Claimant and Ms Power on 2 August 2021, but it is the Claimant who makes reference to it, saying “I am not a threatening person and I am not intimidating; I am very articulate as you have stated” [640]. The Claimant’s witness evidence did not give other instances when she says the word “threatening” was used by Ms Power.

[119]Ms Power described the meeting on 29 July as “long meeting, and at times quite a difficult one from my point of view” [LP 29]. The Claimant’s email to Ms Power on 29 July 2021 “I must also add that I found it offensive during our conversation where you stated ‘Will I be bringing everything to REN – Race Equality Network as you are my line manager? My contact with REN is to ensure I am being treated fairly and in this instance I am not” [470].

[120]In relation to this conversation, Ms Power’s statement says “Throughout the meeting, the Claimant made references to REN, and it felt like she was using REN like a stick to beat me with. She told me “REN is watching everything that happens here”. The Chair of REN, Pauline Campbell, works for the Respondent as a solicitor, and during the meeting the Claimant told me “the lawyer is going to hear about this”, and “I’m taking this to the lawyer” repeatedly” [LP 29]. Ms Power goes on to say “I had to ask the Claimant who she was referring to when she said ‘the lawyer’ after the third or fourth occasion of her using this term in the above-described manner. The Claimant stated it was Pauline Campbell, who is chair of REN and is a lawyer” [LP 29].

[121]This is consistent with the Fairness at Work grievance report [865 – 906] completed by Ms Hudson. Ms Hudson reports that, as part of her investigation, Ms Power told her “Throughout the meeting she [the Claimant] had referenced the Racial Equality Network and that she would be going immediately to REN with my decision. During the course of the meeting she told me that “REN are watching everything that happens here”. She referred to Pauline Hilton as ‘The Lawyer’ as Pauline is the chairperson of REN”.

[122]The statement of Ms Power is consistent with what she told Ms Hudson during the investigation. The Tribunal found her statement credible on this point and that it was the Claimant who had introduced REN into the conversation.

[123]The Claimant had another supervision meeting with Ms Power on 12 August 2021. In relation to this meeting, Ms Power says “I felt that the Claimant’s behaviour in this meeting was passive aggressive and I felt it was a hostile environment. She had been friendly the day before, but as soon as no-one else in the team was around I felt I was dealing with a different person” [LP 37]. This, again, comes across in the Fairness at Work investigation. There is, however, no evidence that she called the Claimant “threatening” or “hostile” during this meeting.

[124]The next meeting between Ms Power and the Claimant was on due to take place on 18 August, however Ms Power explains at [LP 44]: “My next meeting with the Claimant was due to take place on 18 August. However, I was finding it very stressful to interact with the Claimant and was not feeling prepared. I emailed Anna Saunders and Sunita Sharma on 16 August, expressing my concerns. This email can be found at pages 585 – 588 of the bundle. I met with Daniel Proctor, an HR advisor, on 17 August. He advised me to cancel the meeting and reschedule it when I was feeling better”. The Tribunal finds this to be relevant, as it shows the effect these meetings are having on Ms Power.

[125]The Tribunal accepts that the meeting was rebooked for 25 August, but the Claimant cancelled it on the day, and that difficulties in obtaining a minute taker led to more delays, the Claimant then went on sick leave, and the next meeting took place on her return [LP 45].

[126]The notes for this meeting are at [621 – 628]. These are unhelpfully dated 2 August 2021. At the beginning of this meeting, however, Ms Power refers to the Claimant’s absence, saying “the date there you were off sick from work between 26/08/2021 and 31/08/2021 in which you returned back to work on 01/09/2021” [621]. This meeting cannot, therefore, have taken place on 2 August 2021. The Tribunal is satisfied that the date is incorrect and that these are the notes from the meeting of 2 September 2021.

[127]In this meeting, Ms Power said to the Claimant “I felt that the way you referred to Pauline Campbell (PC) as the lawyer rather than by name and told me that Race Equality Network (REN) is aware of everything that is happening made me feel a bit threatened” [623]. The Tribunal can see how Ms Power would feel this was threatening. The implication is that Ms Campbell is a lawyer in some way ‘acting’ for the Claimant and that REN are watching the conduct of the Claimant line managers with a close and critical eye. Ms Power raised her concerns about this to Ms Saunders and Darren Newman the day after the meeting in an email [474], in which she said “A concern I have upon reflection is that her language use with me is littered with low level threats in relation to REN” and “In my view, she is weaponizing REN which is not helpful and designed I think to intimidate me”. The fact that this was reported in an email at the time and which is entirely consistent with Ms Power’s witness statement leads the Tribunal to conclude that her evidence on this point is credible.

[128]The Claimant’s case is that she did not refer to Ms Campbell as “the lawyer”, or if she did, this is simply because Ms Campbell is a lawyer by occupation.

[129]The Tribunal did not find the Claimant’s evidence persuasive on this point. In an email from the Claimant to Ms Saunders on 28 June 2021 [225] the Claimant said “I have been advised that I should not have any meetings with my managers at this time. I am preparing a referral to the Race Equality Network and will be meeting with Pauline Campbell (Senior Litigation Lawyer) tomorrow morning in order to escalate my concern to Helen Sidwell (Director - Staff Wellbeing)”. The Tribunal finds that there is no need for the Claimant to have specified that Ms Campbell was a Senior Litigation Lawyer in this context. She was referring to Ms Campbell in her capacity as chair of REN and it would have been appropriate, if needed at all, to have stated that as her role, as that was the one that was relevant to the issue. Referring to her as a Senior Litigation Lawyer does, in view of the Tribunal, show that the Claimant was seeking to introduce Ms Campbell’s legal qualification into the process, and to insinuate that she (the Claimant) had some form of, as yet undefined, legal backing. The use of the word “advised” also carries connotations that there is a solicitor-client relationship between the Claimant and Ms Campbell, which was not the case.

[130]The word “hostile” is said by Ms Power in supervision meeting on 20 September 2021 [731]. The Claimant also makes the same accusation of Ms Power immediately afterwards [731]. This was clearly a very tense meeting. The notes of this meeting are at [728 – 736]. It can be seen at [729] that the Claimant interrupts Ms Power at lines 14, 16, and 22.

[131]As detailed below in this judgment, the REN had no role in formal processes, and the Claimant either knew or ought to have known this. The Tribunal is satisfied that she was using references to REN to deflect from or ward off the issues being highlighted with her performance. The Tribunal is satisfied that both the Claimant’s attitude and the Claimant’s inappropriate references to REN during the formal meetings would have come across as threatening to Ms Power. The Tribunal is therefore satisfied that a person of any race with the same attitude as that adopted by the Claimant in the meetings with Ms Power would have been described as threatening or hostile. This was not due to the Claimant’s race. Similarly, a person of any race trying to use references to REN to intimidate would also have been described in the same way. Ms Power’s comments were therefore not due to the Claimant’s race.

[132]In relation to the allegations regarding “spoon-feeding”, there is no evidence in the meeting notes that this phrase was used. Ms Power did use the phrase “It seems you need step by step instructions” in a meeting 8 September 2021 [682]. Ms Power accepted doing this when she was interviewed by Ms Hudson as part of the Fairness at Work grievance investigation, where she said “LP responded, ‘I used the phrase step by step instructions; I would have to review minutes when they come back, bearing in mind I feel bombarded by negative comments which is not the way to address a line manager. But then I was confronted with a lot of questions to that, the approach to the meetings feel hostile to me at times. I tried to demonstrate not all tasks will be linear and end to end, there is the start and there is the finish, this is not the environment we work in” [901].

[133]The Fairness at Work grievance investigation found that the phrase “spoonfeeding” had not been used, and there is no new evidence available to the Tribunal that was not available to Ms Hudson when she did her investigation. The Fairness at Work grievance report said “Whilst SE has interpreted what has been said around the phrase ‘needing to be spoon fed’ there is no evidence of this being used by LP or that was the meaning behind what LP did say” [1242]. It is for the Claimant to prove her case and the Tribunal finds there is no evidence on which it could face a finding that the phrase “spoon-feeding” had been said by Ms Power.

[134]The phrase that was used, in relation to step-by-step instructions, does not have the same pejorative meaning as “spoon-feeding”. Ms Power is describing the situation with the Claimant work as she sees it at the time. This is not less favourable treatment, nor is it because of the Claimant’s race.

[135]For the reasons given above, this issue in the Claimant’s claim fails. 136. 1.10. On 1 September 2021, Ms Power put the Claimant on a PIP; the objectives could not be achieved because they were not SMART. This was in breach of the probation policy.

[137]PIP is at [610]. In reference to ‘SMART’ objectives, the Tribunal understands (and it is not disputed between the parties) that the Claimant is referring to objectives which are Specific, Measurable, Achievable, Relevant, and Time-bound. This is a common method of setting goals within a framework.

[138]The Claimant does not give any examples of what she says in a nonachievable objective. Page 10 of her witness statement simply says “The ‘Improvement Plan’ was not ‘SMART’ objectives therefore unachievable, hence my discussion with my mentor James Thompson (Assistant Director of MASH) who together decided another FAW – Fairness at Work Grievance (page 663-668 of the bundle) should be submitted”.

[139]The Claimant’s complaint under the Fairness at Work grievance policy was partially upheld. The outcome report [865 – 906], which was compiled by Mandy Holland-Martin (now Mandy Hudson) states “Where possible the Improvement Plan should be SMART, this may be difficult to implement as the areas contained are developmental and some are about behaviours however it is recognised that if there are elements which could be SMART then they should be” [903].

[140]While the report comments that this is general good practice, it stops short of saying that this is a breach of the probation policy. The Tribunal is satisfied this is a correct reading of the probation policy. SMART objectives not mentioned in the policy. SMART objectives may be sensible, but it cannot be said that not setting objectives as SMART ones is a breach of the policy. The Tribunal is further satisfied that an objective can still be achieved even if it is not SMART.

[141]The Tribunal finds that the plan is clear and easy to understand. Even if the objectives could have been worded better, there is no evidence that this links to race. The Tribunal is satisfied that anyone who needed a PIP would be likely to have some objectives that were SMART and some that were not. The setting of the objectives would be set by their manager, who would have a wide discretion in relation to this. There is nothing to reverse the burden of proof in relation to this issue and so this issue of the Claimant’s claim fails. 142. 1.11. After the PIP was put in place, the Claimant’s workload was increased with no support.

[143]The parties agree that the Claimant workload was increased, as Ms Power thought the Claimant had a light workload.

[144]Some things were added to the Claimant's workload [LP51] as Power felt that the Claimant had capacity to take on these tasks. Ms Saunders said in cross-examination that the Claimant’s workload was light, which corroborates this evidence. The Claimant had, at this point, worked for the Respondent for around six months, and so the Respondent was entitled to increase her workload. The Claimant has not named anyone who she says she was treated differently to. In the absence of an actual comparator, the Tribunal has considered a hypothetical non-black comparator in the same circumstances as the Claimant. The Tribunal is satisfied that such a person would also have their workload increased, and no there is no difference in treatment.

[145]The Claimant’s claim is also based on the fact that she received no support. The Tribunal is satisfied that this is not the case. She was offered support. She had a mentor (James Thompson, Assistant Director of MASH), who assisted her in putting in another Fairness at Work Grievance [SE page 10]. She was offered the Employee Assistance Helpline.

[146]The Claimant also wanted weekly reviews of her supervision plan, but did not want weekly supervision meetings as she said these were “micromanagement”. It is hard, in this instance, for the Tribunal to understand what the Claimant is saying the Respondent should or should not have done.

[147]Ms Power recorded in an email to the Claimant “You expressed that the way I can support you is by not talking to you. I think it is important that we continue to engage together, to ensure that your needs and the needs of the service are met” [468]. The Tribunal appreciates that this is Ms Power saying what the Claimant said, but it is contemporaneous and was not challenged or suggested to be incorrect by the Claimant. For the Claimant to suggest that ‘support’ could be given by her line manager not talking to her was not reasonable for the Claimant to request nor was it a reasonable stance to adopt.

[148]The Claimant also confirmed in her witness statement [SE page 12] that she was being supported by the Race Equality Network.

[149]The Claimant did not provide evidence of her asking for specific support and this being refused by the Respondent. The Tribunal finds that the Claimant was offered support. Things the Respondent did to assist Claimant include offers of mediation [903]; Ms Power agreed to change the Claimant’s hours of work [1077]; provision of mouse and keyboard as per occupational health [435; 1423].

[150]The Tribunal therefore finds that this aspect of the Claimant’s claim is not made out and her claim in relation to this issue therefore fails. 151. 1.12. Helen Sidwell, in cahoots with Anna Saunders, instructed Pauline Campbell (Chair REN) to stop assisting or advising the Claimant in around September 2021.

[152]The parties agree that Pauline Campbell is a principal lawyer in the council’s legal team. She is also the chair of the REN and is one of the REN members providing the ‘safe spaces’ support. The REN at the time was an informal pilot network operated by the Respondent. REN members were not permitted to attend formal meetings such as probation meetings under the Respondent’s procedures. Those procedures made it clear who was to attend those meetings and at what point in the process staff could bring in a trade union representative or colleague. This is set out in the REN framework at [169].

[153]On 1 August 2021, Ms Campbell sent an email to Mr Sidwell, copying in the Saunders, in relation to the Claimant and the decision to extend the Claimant probation period [487 – 489]. Ms Campbell explained that Claimant had made a reference to REN, and Ms Campbell wanted to seek clarification on this. Ms Campbell also forwarded this email to the Claimant [486].

[154]As a result of this, Ms Saunders said to Ms Sidwell in an email dated 2 August 2021 “I have seen that you have put some time in for a catch up with Pauline and myself tomorrow. As you know I have been very happy to work with REN recently to see if we could informally resolve the issues that a member of staff in our team has expressed she is experiencing. However, there feels to be an overlap between the informal REN process’s and the HR policies and procedures we are following including the probation policy and the FAW policy” [529].

[155]Ms Sidwell replied to say that she would meet with Ms Campbell on her own, because her view was “In this case I understand that there is a feeling that the member of staff is using REN in the formal process of probation rather than to resolve in an informal way any issue between team members or line management” [529].

[156]Ms Sidwell then reported the content of her meeting with Ms Campbell back to Ms Saunders on 3 August 2021. Ms Sidwell understood that Ms Campbell was clear she was not there to be an advisor to the Claimant. Ms Sidwell states in her email “I confirmed HR had advised the extension as we felt it appropriate if the manager did not feel they could confirm in post. Pauline was clear with me that she is not here to be an advisor to Suzanna on formal processes and challenge that but on working relationships/concerns with team/line manger dynamics. I did go through with Pauline some of the managers feedback on Suzanna’s reference to legal advisor and REN” [527]. The Tribunal accept this email as accurate and finds that it reflects the conversation between Ms Sidwell and Ms Campbell. It was, therefore, Ms Cambell who said that she was not there to be an advisor to the Claimant.

[157]During cross-examination, the Claimant said that Ms Campbell had told the Claimant that she could no longer be involved in the Claimant’s probation issues as she was “too legal” and “as a black woman, they [the Respondent] found her threatening”. The Tribunal does not accept this evidence. The Tribunal noted that Ms Campbell declined to be a witness on the Claimant’s behalf, so this evidence cannot be tested. The Tribunal also notes that the Claimant did not include this issue as a complaint in her September Fairness at Work grievance. The Claimant did not raise this at the time (8 September 2021) nor in any of the subsequent FAW documents or meeting. If such comments have been made, the Tribunal finds it implausible that the Claimant would not have raised them sooner. The Tribunal found the Claimant’s evidence on this point be unconvincing.

[158]There is no evidence before the Tribunal that Ms Sidwell gave Ms Campbell any instruction relating to ceasing assisting or advising the Claimant around September 21 or indeed at any other time. Ms Saunders thought there was an overlap between REN and the formal HR process. [HS 9, 10]. The Tribunal’s findings are that the REN involvement with the Claimant seems to have petered out, rather than come to an abrupt stop. The is no cogent evidence to support the assertion that REN involvement suddenly ceased.

[159]The Tribunal is satisfied that Ms Campbell did distance herself from involvement in the processes of the Claimant was going through, because REN is not to be used to for formal processes. Ms Campbell was aware of this and did not want to be seen to be in the role of either legal or trade union representation during formal processes. The Tribunal is satisfied that there were other members of REN that the Claimant could have gone to, aside from Ms Campbell, and so nothing the Respondent did prevented the Claimant from having access to the REN. The REN was, however, only to be used for its proper and appropriate function.

[160]The Tribunal is satisfied that neither Ms Sidwell nor Ms Saunders instructed Ms Campbell to stop advising or assisting the Claimant. The Tribunal is further satisfied that the scope of the REN was clearly set out and could not include involvement in formal processes. This would apply to anyone of any race who sought the assistance of REN. This aspect of the Claimant’s claim 161. 1.13. On or around 22 September 2021 Ms Saunders refused the Claimant’s request to be line managed by Ms Janice Richards.

[162]The Claimant’s witness statement did not specifically address this issue. Her email to Ms Sauders on 20 September [756] states that there has been a breakdown in the relationship with her line manager but does not specifically ask to change managers. There is no mention at all of Ms Richards.

[163]Ms Saunders replied on the same day at 10:55 [775]. Ms Saunders pointed out that the Claimant’s line manager had already been changed from Ms Kelly to Ms Power. Ms Saunders also said that the Claimant’s Fairness at Work grievance “is still being considered and that this will produce recommendation that will need to be acted upon”. The Tribunal finds that Ms Power was, in this message, saying that the recommendation of the Fairness at Work outcome would be something that the Respondent would implement. The Tribunal finds that it was therefore reasonable to wait for the outcome of this report.

[164]Ms Saunders goes on to say in her email that she has asked Ms Power to offer mediation again to try and improve the working relationship, and she urges the Claimant to take up that offer.

[165]The Claimant replied [774] on the same day and asked for confirmation that a change in line management was not an option for her at that time. The Claimant complained of discrimination and stated that she had commenced legal proceedings.

[166]Ms Richards is mentioned in the Claimant’s statement as giving positive feedback, but not as a potential manager. The Claimant accepted in crossexamination that she never mentioned Ms Richards by name in any of the email exchanges. It is difficult to the Tribunal to see how the Claimant can advance the positive case in relation to this issue when she has not provided any evidence that she requested line management from Ms Richards.

[167]The Tribunal finds that it is correct that the Respondent declined to change the Claimant’s line manager from Ms Power to anyone else, but the issue above specifically says the Claimant requested a change to be line managed by Ms Richards, which the Tribunal is satisfied she did not.

[168]In any event, however, any new manager would be the Claimant’s third manager in six months. It is not reasonable for the Claimant to request to changes of manager in such a short space of time.

[169]The Tribunal further finds that Respondent’s rationale for the perfectly reasonable decision not to change the Claimant’s line manager to third manager was that Ms Saunders wanted there to be mediation between Ms Power and the Claimant, and also because she wanted to await the outcome of the Fairness at Work report. The Tribunal is satisfied that any person, of any race, who was in the same situation, would be treated in the same way. The decision not to change the Claimant’s line manager was therefore not an act of race discrimination and this aspect of the Claimant’s claim fails. 170. 1.14. By 6 October 2021 Ms Mandy Holland-Martin still had not provided an outcome to the Claimant’s complaint under the Fairness at Work policy.

[171]The Claimant put in two grievances under the Respondent’s Fairness at Work policy dated 3 August 2021 and 8 September 2021. Ms Hudson was the manager who investigated these grievances and produced the Fairness at Work report.

[172]The report is dated 5 November 2021. It has 46 pages and 34 appendices. It partially upheld two claims. The Claimant had until 22 November 2021 to appeal any of the findings of this report but she chose not to do so.

[173]The explained that her report had been completed by 2 October 2021. It was then with HR to be read. She said this was usual practice. A problem was that Tina Ohagwa, who was an HR adviser, had left the Respondent. She would have been the one to have proof read the report but HR were short-staffed at this point. Ms Hudson gave credible evidence that HR had the report for 3 to 4 weeks, during which time she exchanged various emails with HR, who also tasked with getting the policies attached as appendices to the report. This would normally have been done by HR support, which was the role taken on by Ms Ohagwa but she had left, leading to delays.

[174]Ms Hudson also gave credible evidence that there are other factors that led to the delay. As well as lost HR support, these factors included Ms Hudson’s being on a period of annual leave; Ms Power then being on annual leave; and the effect on deliveries caused by the 2021 fuel crisis. In addition, Ms Hudson explained that the Fairness at Work grievance contained a lot of issues and there were actually two separate Fairness at Work grievances which were combined.

[175]The Fairness at Work report goes into a lot of detail, and the Claimant accepted in cross-examination that she wanted this to be done as she wanted her concerns investigated thoroughly.

[176]The Tribunal is satisfied that Ms Hudson was aware of the timelines that should have been adhered to as per the Fairness at Work Policy [52]. The Tribunal does accept, however, that this was the COVID era, and new ways of working such as conducting investigations entirely remotely were relatively new and untested. Timelines were often breached during this chaotic era.

[177]The Tribunal accepted Ms Hudson’s evidence that she had never met the Claimant’s prior to doing the report. Ms Hudson explained that, having met and interviewed the Claimant via Teams as part of the investigation, she would have been aware that the Claimant was black but would not have known about her Caribbean descent.

[178]The Tribunal is satisfied that there is no evidence that the delay in producing the Fairness at Work report is to do with race. The Tribunal is satisfied that a hypothetical comparator, with same number of issues to be investigated and two separate Fairness at Work procedures being combined would likely have experienced the same delay. 179. 1.15. The Respondent constructively dismissed the Claimant.

[180]The Claimant’s case is that the Respondent’s discriminatory conduct amounted to a fundamental breach of the implied term of mutual trust and confidence. This is the way that her case has been pleaded, and the conduct she relies upon at the allegations that form the issues before the Tribunal as set out above. In her closing written submissions, she sets out that she resigned due to the Respondent’s failure to address her grievance regarding discriminatory treatment. She introduced a ‘final straw’ argument that had not been advanced before and there had been no opportunity for the Respondent to cross examine her on it. The Claimant does not have sufficient qualifying service to rely on a claim of ‘ordinary’ constructive unfair dismissal, so must therefore show that her constructive dismissal was discriminatory.

[181]In De Lacey v Wechseln Ltd t/a Andrew Hill Salon WL 01255930 (2021) the EAT held that a constructive dismissal may be discriminatory if discriminatory conduct materially influenced the repudiatory breach. The Tribunal must assess whether the discriminatory acts sufficiently influenced the overall breach to render the dismissal discriminatory.

[182]Due to the findings of the Tribunal above, the Tribunal is satisfied that there were no breaches of policy so serious as to amount to a fundamental breach of contract.

[183]Her resignation letter on 4 October 2021 [1440] explains the reasons for her resignation. She sites challenges to the quality of her work; a manager who “was an ally to Catherine Kelly and had already formed an opinion of me”; and a “fabricated improvement plan with no SMART objectives extending my probation for a further 3 months” [1440].

[184]The Claimant explained in her resignation letter that she applied for promotion within the first four weeks of commencing her role with the Respondent. She continued to work the Respondent for at least five months after she was not successful in getting this promotion. Not being promoted is not one of the issues that the Claimant has was an act of discrimination and does not appear as part of her claim. The Tribunal is satisfied that there was no fundamental breach of contract when the Claimant did not get her promotion, and even if there was, the Claimant did not resign in response to this. Continuing to work for the Respondent for such a length of time afterwards would have affirmed the contract and a claim for constructive unfair dismissal based on her not obtaining her promotion within her first four weeks with the Respondent would fail.

[185]From the findings above, there was no “fabricated” improvement plan. The Tribunal is satisfied that this is something the Respondent was entitled to implement, and it does not constitute a fundamental breach of contract that would entitle the Claimant to resign. The Tribunal is further satisfied that the Respondent was entitled to extend the Claimant’s probation, and this does not constitute a fundamental breach of contract either. Neither of these things were discriminatory, nor was there any discriminatory conduct on the part of the Respondent that would entitle the Claimant to resign and treat herself as constructively unfairly dismissed.

[186]The Tribunal is further satisfied that having Ms Power as her line manager was not a fundamental breach of the Claimant contract of employment. The Tribunal has made findings above in relation to the Claimant’s request to change her line manager, and there was nothing discriminatory about the Respondent’s conduct in relation to this. The Tribunal accepts that there were difficulties between the Claimant and Ms Power. In the Fairness at Work grievance report, Ms Hudson said “What I can see is that there are two staff members who are finding the relationship of working together difficult. LP wanting to try and engage and progress the extension to probation fairly and thoroughly with a positive perspective and SE reluctant to any form of engagement. SE also appears to reflect negatively on things, even when areas are positive” [903].

[187]Ms Power does refer to the situation being “challenging” but, as per the findings above, this was not in reference to the Claimant herself and is not an act of discrimination. Ms Power was asked by HR to remove some of the references to “challenging” in the meeting notes. This was due to a worry that these could be misinterpreted.

[188]What was challenging was that the Claimant would not accept any criticism, constructive or otherwise. The Claimant refused to engage with management and was not accepting of any of the issues that management were raising with her performance. As per the findings above, the Tribunal is satisfied that there were performance issues with the Claimant’s work.

[189]The Tribunal is satisfied that Ms Power was not “an ally to Catherine Kelly and had already formed an opinion of me” [1440]. Ms Power declined feedback in order to give the Claimant the benefit of a completely fresh start [LP 8 – 9], which is confirmed by the statement of Ms Kelly [CK 28]. The first two meetings were positive, but the relationship deteriorated after that. The Tribunal is satisfied, however, given the findings above, that the conduct of Ms Power was not discriminatory and did not give rise to circumstances where the Claimant was entitled to resign and consider herself constructively unfairly dismissed.

[190]The Claimant’s claim of discriminatory constructive unfair dismissal 191. 1.16. After the Claimant resigned, Ms Power told the Claimant that she had to leave on 8 October 2021.

[192]The Tribunal is satisfied that the Claimant’s notice period was in line with the Respondent’s probation policy. The Claimant offered two weeks’ notice as a courtesy. In cross-examination, she accepted there was an agreement between her and the Respondent for Friday 8 October to be her final day, and she accepted that this was in line with the Respondent policy. Despite her agreement on the above, the Claimant states in cross-examination that this was an act of direct race discrimination.

[193]The Tribunal had regard to the email correspondence between Ms Power and the Claimant in relation to this issue.

[194]On 6 October 2021, Ms Power emailed the Claimant and said “I realise that there has been an oversight on the service’s part in reading your resignation email-my apologies for this. As you are probationary member of staff and in accordance with the terms and conditions of your employment contract, you are required to only provide one week of notice. As your resignation was received on Monday 04/10/21, your last working day, in accordance with the terms of your employment contract is Friday 08/10/21” [1482].

[195]After the Claimant queried this, Ms Power went on to say “As stated below this was an oversight. In your resignation you specified the 17/10/21 as your last date of employment, and that any outstanding annual leave would be taken prior to this date. The date of 17/10/21 was inaccurate as only one week of notice is required. You provided your resignation on Monday 04/10/21 and it was accepted on this date. Therefore your last day will be 08/10/21. The reason for this is that it is in line with the Council’s probation policy and terms and conditions of your employment contract. Employees can agree a last day of service with management following handing in of their notice, this would usually be negotiating use of annual leave within the agreed notice period. Your resignation was accepted by management on Monday 04/10/21 and therefore you can advise whether or not you would like to use your remaining annual leave within your remaining notice period for this week, or be paid the outstanding leave in addition to your final salary. This will be up to Friday 08/10/21” [1480].

[196]The Tribunal is satisfied that Ms Power does not use the words “had to leave”. She specifies the date in accordance with the policy.

[197]This is not less favourable treatment. It is not clear what the Claimant says the Respondent should have done, nor did this come out in her crossexamination. The Claimant’s insistence that, despite there being an agreement and despite this being in line with the Respondent’s policy, that this was an act of direct race discrimination, is not a convincing argument. For her to argue that the Respondent following its own policy constitutes an act of race discrimination is not a coherent or sustainable one, and in the view of the Tribunal, further damages her credibility in relation to her discrimination claim.

[198]The Tribunal is satisfied that this issue in the Claimant’s claim is misconceived. This element of the Claimant’s claim fails.

Conclusion

[199]For the reasons given above, the Claimant’s claims of direct race discrimination contrary to s.13 of the Equality Act 2010 are not well founded and are dismissed. Time Limits

[200]The Claimant’s claims having failed on their merits, it is not necessary for the Tribunal to consider the time limit issued arising from Section 123(3) of the Equality Act 2010 (Fuller V London Borough of Redbridge

[2013] UKEAT 0084

13 1207). Approved by: