Ms S Henry v St Mungo Community Housing Association: 3206657/2021
EMPLOYMENT TRIBUNALS
Case No 3206657/2021
Between
Ms S HenryClaimantSt Mungo Community Housing AssociationRespondent
Before
Employment Judge Brewer
Members
Ms W Blake-RankenIn person for claimantMr F McCombie (instructed by Counsel) for respondentDate 23 January 2025
JUDGMENT
[1]the claimant’s claim for constructive unfair dismissal fails and is dismissed,[2]the claimant’s claim for direct race discrimination fails and is dismissed,[3]the claimant’s claim for harassment related to race fails and is dismissed,[4]the claimant’s claim for victimisation fails and is dismissed.
REASONS
[1]This case was originally listed to be heard in four days starting on 15 October 2024.[2]At the hearing the claimant represented herself and the respondent was represented by Mr McCombie of Counsel. 1 of 44[3]The Tribunal had an agreed list of issues, a witness statement from the claimant and, on behalf of the respondent witness statements from Maria Dimouli, Iver Morgan and Claire Tuffin. We heard oral evidence from the claimant and the respondent’s witnesses.[4]We had an agreed bundle of documents running to 728 pages, a chronology, and a list of people.[5]Prior to the final hearing, the claimant was identified as a vulnerable person and at a case management hearing shortly before the final hearing an Employment Judge made orders that unless and until giving evidence the respondent’s witnesses and any observers would have their cameras off and, more significantly, that the claimant would draft all of her cross examination questions in advance and those questions were to be put to the witnesses by the Employment Judge presiding at the final hearing.[6]The first morning of the hearing was taken up with Tribunal reading time and the hearing started at 2:00 PM.[7]It is not intended as a criticism of the claimant to say that the questions she had drafted which were to be put on her behalf to the respondent’s witnesses, were often not drafted as straightforward questions which could be asked without further elucidation from the claimant, and therefore there was a significant delay caused by the need on many occasions for me to clarify what exactly the claimant was asking and to find various pages in the bundle. As I say this is not meant by way of criticism of the claimant, she is not experienced in cross examining witnesses and there is no reason why she should have drafted her questions differently without further guidance. Largely for this reason the case went part heard. By the end of the final day, we had concluded with the claimant’s evidence and one of the respondent’s witnesses.[8]In the circumstances we listed the case for a further 3 days, the earliest available dates being in January 2025, and orders were made for the exchange of skeleton arguments/submissions and, given the claimant’s then experience of cross examination, for her to revisit her questions for the respondent’s remaining two witnesses in time for the resumed hearing. Prior to the resumed hearing, detailed written submissions were provided by both parties, and the claimant did indeed revise her cross examination questions which, save for one or two examples, were asked and answered without difficulty. This meant that the evidence of the remaining two witnesses was completed on the morning of the second day of the resumed hearing and submissions were completed by late morning.[9]Judgment was reserved. The Tribunal subsequently deliberated and reached a unanimous judgment which I have set out below with reasons.
Issues
[10]The issues were agreed at a case management hearing before EJ Moor on 17 October 2022 and are set out in the Appendix to this judgment. 2 of 44
Law
[11]We set out below a brief description of the relevant law. Constructive dismissal[12]The claimant claimed that she had been constructively dismissed. She resigned following, she says, a series of acts, faults and omissions by the respondent which, she says, amounted to a breach in the implied term of trust and confidence. The relevant law is as follows.[13]The guidance given for deciding if there has been a breach of the implied term of trust and confidence is set out in Malik v BCCI; Mahmud v BCCI 1997 1 IRLR 462 where Lord Steyn said that an employer shall not: "…without reasonable and proper cause, conduct itself in a manner calculated [or] likely to destroy or seriously damage the relationship of confidence and trust between employer and employee."[14]The burden of proving the absence of reasonable and proper cause lies on the party seeking to rely on such absence — RDF Media Group plc and anor v Clements 2008 IRLR 207, QBD. As in that case, this will usually be the employee.[15]In Hilton v Shiner Ltd — Builders Merchants 2001 IRLR 727, EAT, for example, Mr Recorder Langstaff QC stated in connection with a submission by counsel as to the proper legal test for establishing a breach of the implied term in the context of a case where the employer was alleging that the employee’s misconduct had destroyed trust and confidence: “When Mr Prichard identified the formulation of the trust and confidence term upon which he relied, he described it as being an obligation to avoid conduct which was likely seriously to damage or destroy a mutual trust and confidence between employer and employee. So to formulate it, however, omits the vital words with which Lord Steyn in his speech in Malik v Bank of Credit and Commerce International SA (in compulsory liquidation) (above) qualified the test. The employer must not act without reasonable and proper cause… To take an example, any employer who proposes to suspend or discipline an employee for lack of capability or misconduct is doing an act which is capable of seriously damaging or destroying the relationship of trust and confidence between employer and employee, whatever the result of the disciplinary process. Yet it could never be argued that an employer was in breach of the term of trust and confidence if he had reasonable and proper cause for the suspension, or for taking the disciplinary action.”[16]Section 95(1)(c) of the Employment Rights Act 1996 (ERA) states that there is a dismissal when the employee terminates the contract, with or without notice, in circumstances such that he or she is entitled to terminate it without notice by 3 of 44 reason of the employer’s conduct. That is commonly called constructive dismissal.[17]In the leading case in this area, Western Excavating (ECC) Ltd v Sharp 1978 ICR 221, CA, the Court of Appeal ruled that, for an employer’s conduct to give rise to a constructive dismissal, it must involve a repudiatory breach of contract. As Lord Denning MR put it: ‘If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed’[18]In order to successfully claim constructive dismissal, the employee must establish that: 18.1. there was a fundamental breach of contract on the part of the employer, 18.2. the employer’s breach caused the employee to resign, 18.3. the employee did not delay too long before resigning, thus affirming the contract and losing the right to claim constructive dismissal.[19]We note that a constructive dismissal is not necessarily an unfair one — Savoia v Chiltern Herb Farms Ltd 1982 IRLR 166, CA.[20]A course of conduct can cumulatively amount to a fundamental breach of contract entitling an employee to resign and claim constructive dismissal following a ‘last straw’ incident even though the last straw by itself does not amount to a breach of contract — Lewis v Motorworld Garages Ltd 1986 ICR 157, CA. However, an employee is not justified in leaving employment and claiming constructive dismissal merely because the employer has acted unreasonably. This was confirmed in Bournemouth University Higher Education Corporation v Buckland 2010 ICR 908, CA, where the Court upheld the decision of the EAT that the question of whether the employer’s conduct fell within the range of reasonable responses is not relevant when determining whether there has been a constructive dismissal.[21]There is no need for there to be ‘proximity in time or in nature’ between the last straw and the previous act of the employer — Logan v Customs and Excise Commissioners 2004 ICR 1, CA.[22]In Omilaju v Waltham Forest London Borough Council 2005 ICR 481, CA, the Court of Appeal explained that the act constituting the last straw does not have to be of the same character as the earlier acts, nor need it constitute unreasonable or blameworthy conduct, although in most cases it will do so. But the last straw must contribute, however slightly, to the breach of the implied term of trust and confidence. An entirely innocuous act on the part of the employer cannot be a final straw, even if the employee genuinely, but mistakenly, interprets the act as hurtful and destructive of his or her trust and confidence in the 4 of 44 employer. The test of whether the employee’s trust and confidence has been undermined is objective. And while it is not a prerequisite of a last straw case that the employer’s act should be unreasonable, it will be an unusual case where conduct which is perfectly reasonable and justifiable satisfies the last straw test. In that context, in Chadwick v Sainsbury’s Supermarkets Ltd EAT 0052/18 the EAT rejected a tribunal’s finding that a threat of disciplinary action was ‘an entirely innocuous act’ that could not constitute a last straw.[23]Where the act that tips the employee into resigning is entirely innocuous it will be necessary to consider whether any earlier breach has been affirmed. In Williams v Governing Body of Alderman Davies Church in Wales Primary School EAT 0108/19 a teacher, W, was suspended for an alleged child protection matter. He was also subject to disciplinary proceedings for alleged breach of the school’s data protection policy. He was dissatisfied with the process and resigned after several months, stating that the last straw was learning that a colleague, under investigation for a connected data protection breach, had been instructed not to contact him. The tribunal found that this instruction was reasonable in the circumstances and entirely innocuous. It held that, following Omilaju, this act could not contribute to a breach of the implied duty of trust and confidence and was not a last straw entitling W to treat his employment contract as terminated.[24]On appeal, the EAT held that, where there is conduct by an employer that amounts to a fundamental breach of contract, a constructive dismissal claim can succeed even if there has been more recent conduct by the employer which does not in itself contribute to a breach of the implied term of trust and confidence, but which is what tips the employee into resigning. Crucially, however, the employee must not have affirmed the earlier fundamental breach and must have resigned at least partly in response to it.[25]In terms of causation, that is the reason for the resignation, a tribunal must determine whether the employer’s repudiatory breach was ‘an’ effective cause of the resignation. However, the breach need not be ‘the’ effective cause — Wright v North Ayrshire Council 2014 ICR 77, EAT. As Mr Justice Elias, then President of the EAT, stated in Abbycars (West Horndon) Ltd v Ford EAT 0472/07, “the crucial question is whether the repudiatory breach played a part in the dismissal’, and even if the employee leaves for ‘a whole host of reasons’, he or she can claim constructive dismissal ‘if the repudiatory breach is one of the factors relied upon”[26]Where an employee has mixed reasons for resigning their resignation will constitute a constructive dismissal provided that the repudiatory breach relied on was at least a substantial part of those reasons (see Meikle v Nottinghamshire County Council [2004] EWCA Civ 859, [2005] ICR 1).[27]Thus, where an employee leaves a job as a result of a number of actions by the employer, not all of which amounted to a breach of contract, they can nevertheless claim constructive dismissal provided the resignation is partly in response to a fundamental breach. 5 of 44[28]If the employee waits too long after the employer’s breach of contract before resigning, he or she may be taken to have affirmed the contract resulting in the loss of the right to claim constructive dismissal. In the words of Lord Denning MR in Western Excavating (ECC) Ltd v Sharp 1978 ICR 221, CA, the employee “must make up his mind soon after the conduct of which he complains: for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged”[29]The Court of Appeal in Kaur v Leeds Teaching Hospitals NHS Trust 2019 ICR 1, CA, held that, in last straw cases, if the last straw incident is part of a course of conduct that cumulatively amounts to a breach of the implied term of trust and confidence, it does not matter that the employee had affirmed the contract by continuing to work after previous incidents which formed part of the same course of conduct. The effect of the last straw is to revive the employee’s right to resign.[30]If one party commits a repudiatory breach of the contract, the other party can elect to either affirm the contract and insist on its further performance or accept the repudiation, in which case the contract is at an end. The innocent party must at some stage elect between these two possible courses. If they affirm the contract, even once, they will have waived their right to accept the repudiation.[31]As to any delay in making such a decision, the employee must make up their mind soon after the conduct of which they complain. Tribunals must take a ‘reasonably robust’ approach to waiver; a wronged employee cannot ordinarily expect to continue with the contract for very long without losing the option of termination.[32]An employee’s absence from work during the time he or she was alleged to have affirmed the contract may be a pointer against a genuine affirmation. For example, in Hoch v Thor Atkinson Steel Fabrications Ltd ET Case No.2411086/18 H resigned nearly three weeks after receiving an email accusing him of not doing his job properly, which was the last straw following several incidents of harassment on the grounds of race and sexual orientation. The tribunal found that he could not be said to have affirmed his contract by not resigning earlier as he had been on holiday. That said, affirmation can be implied by prolonged delay and/or if the innocent party calls on the guilty party for further performance of the contract by, for example, claiming sick pay.[33]In relation to whether the contract has been affirmed, or the breach waived by the claimant, the Court of Appeal in Kaur (above) offered guidance to tribunals, listing the questions that it will normally be sufficient to ask in order to decide whether an employee was constructively dismissed: 33.1. what was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, his or her resignation? 33.2. has he or she affirmed the contract since that act? 33.3. if not, was that act (or omission) by itself a repudiatory breach of contract? 6 of 44 33.4. if not, was it nevertheless a part of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a repudiatory breach of trust and confidence? 33.5. did the employee resign in response (or partly in response) to that breach? Direct race discrimination[34]In relation to direct race discrimination, for present purposes the following are the key principles.[35]Under section 13 Equality Act 2010 (EqA), there are two issues:(a) less favourable treatment and(b) the reason for that less favourable treatment. These questions need not be answered strictly sequentially (Shamoon v Chief Constable of the Royal Ulster Constabulary 2003 ICR 337).[36]Given the treatment must be “less favourable” a comparison is required, and a comparator must “be in the same position in all material respects as the victim save only that he, or she, is not a member of the protected class” (Shamoon above).[37]The burden of proof is set out in section 136 EqA. The leading cases on the burden of proof pre-date the Equality Act (Igen Ltd v Wong 2005 EWCA Civ 142 and Madarassy v Nomura international Plc 2007 EWCA Civ 33, [2007] IRLR 246) but in Hewage v Grampian Health Board 2012 the Supreme Court approved the guidance given in Igen and Madarassy.[38]By virtue of section 136, it is for a claimant to prove on the balance of probabilities facts from which the Tribunal could conclude, absent any explanation from the respondent, that the respondent has discriminated against the claimant. If the claimant does that, the burden of proof shifts to the respondent to show it did not discriminate as alleged.[39]In Madarassy the Court of Appeal held that the burden of proof does not shift to the employer simply on the claimant establishing a difference in status (e.g. sex) and a difference in treatment. This merely gives rise to the possibility of discrimination. Something more is needed.[40]Any inference about subconscious motivation has to be based on solid evidence (South Wales Police Authority v Johnson 2014 EWCA Civ 73). Harassment related to race[41]The general definition of harassment set out in S.26(1) applies to all protected characteristics except marriage and civil partnership and pregnancy and maternity. It states that a person(a) (A) harasses another(b) (B) if: 41.1. A engages in unwanted conduct related to a relevant protected characteristic — S.26(1)(a); and 7 of 44 41.2. 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 — S.26(1)(b).[42]There are three essential elements of a harassment claim under S.26(1): 42.1. unwanted conduct, 42.2. that has the proscribed purpose or effect, and 42.3. which relates to a relevant protected characteristic.[43]Mr Justice Underhill, then President of the EAT, expressed the view that it would be a ‘healthy discipline’ for a tribunal in any claim alleging unlawful harassment specifically to address in its reasons each of these three elements — Richmond Pharmacology v Dhaliwal 2009 ICR 724, EAT (a case relating to a claim for racial harassment brought under the Race Relations Act 1976 (RRA)). Nevertheless, he acknowledged that in some cases there will be considerable overlap between the components of the definition — for example, the question whether the conduct complained of was unwanted may overlap with the question whether it created an adverse environment for the employee. An employment tribunal that does not deal with each element separately will not make an error of law for that reason alone — Ukeh v Ministry of Defence EAT 0225/14. Unwanted conduct[44]The Equality and Human Rights Commission’s Code of Practice on Employment (‘the EHRC Employment Code’) notes that unwanted conduct can include ‘a wide range of behaviour, including spoken or written words or abuse, imagery, graffiti, physical gestures, facial expressions, mimicry, jokes, pranks, acts affecting a person’s surroundings or other physical behaviour’ — para 7.7. The conduct may be blatant — (for example, overt bullying) — or more subtle (for example, ignoring or marginalising an employee). An omission or failure to act can constitute unwanted conduct as well as positive actions (see, for example, Marcella and anor v Herbert T Forrest Ltd and anor ET Case No.2408664/09 below and Owens v Euro Quality Coatings Ltd and ors ET Case No.1600238/15, in which an employer’s failure to remove a picture of a swastika for some weeks amounted to unwanted conduct). ’Violating dignity’[45]Perhaps surprisingly, there are few cases examining precisely what is meant by violating a claimant’s dignity. In Richmond Pharmacology v Dhaliwal 2009 ICR 724, EAT, Mr Justice Underhill, then President of the EAT, said: ‘Not every racially slanted adverse comment or conduct may constitute the violation of a person’s dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended’. Mr Justice Langstaff, then President of the EAT, affirmed this view in Betsi Cadwaladr University Health Board v Hughes and ors EAT 0179/13. 8 of 44[46]In that case a senior nurse suffered from Parkinson’s to the extent that she could no longer do clinical work. Her grade and pay were maintained by creating a nonclinical post for her, which initially was a meaningful job but which after about three years had become menial. Her responsibility for training was taken over by someone else without reference to her; she wrote detailed policies but these were not progressed and she was given no clear explanation as to why this was; she had initially been proactive in respect of stock control but was subsequently expected to order what other people asked her to; she was given to think that her system of recording stock was changed; and ultimately her sole role was to manage the stocking of cardboard boxes and on one occasion to clear out a room and move furniture. She was signed off sick with stress and ultimately dismissed.[47]H brought a claim in an employment tribunal, which found that a number of matters, including the circumstances which led to the deterioration in the quality of her role, collectively constituted unwanted conduct that had the effect of violating her dignity and of creating a demeaning environment. However, the EAT held that not every matter, taken individually, justified such a conclusion. In particular, a letter sent to some consultants referring to the deterioration in H’s health, of which they were aware, could not justify a finding that it violated her dignity or created a degrading environment, even if she had found it upsetting. Nor could a referral to occupational health violate her dignity or create a degrading environment. The EAT observed that ‘the word “violating” is a strong word. Offending against dignity, hurting it, is insufficient. “Violating” may be a word the strength of which is sometimes overlooked. The same might be said of the words “intimidating” etc. All look for effects which are serious and marked, and not those which are, though real, truly of lesser consequence’. However, the EAT upheld the tribunal’s conclusion that the Board’s conduct in permitting or causing the deterioration in H’s position, albeit unwitting, clearly violated her dignity. It observed: ‘One only has to think of a grade 6 nursing sister now being asked to look after cardboard boxes to understand how that is justified’. Intimidating, hostile, degrading, humiliating or offensive environment[48]Some of the factors that a tribunal might take into account in deciding whether an adverse environment had been created were noted in Weeks v Newham College of Further Education EAT 0630/11. Mr Justice Langstaff, then President of the EAT, held that a tribunal did not err in finding no harassment, having taken into account the fact that the relevant conduct was not directed at the claimant, that the claimant made no immediate complaint and that the words objected to were used only occasionally. (However, he noted that tribunals should be cautious of placing too much weight on the timing of an objection, given that it may not always be easy for an employee to make an immediate complaint.) Langstaff P also pointed out that the relevant word here is ‘environment’, which means a state of affairs. Such an environment may be created by a one-off incident, but its effects must be of longer duration to come within what is now S.26(1)(b)(ii) EqA.[49]The meaning of the term ‘environment’ was considered in Pemberton v Inwood 2017 ICR 929, EAT, where P, a Church of England priest, was refused a licence 9 of 44 that would allow him to take up a position as a hospital chaplain because he had entered into a same-sex marriage against the Church’s doctrines.[50]The EAT upheld the tribunal’s decision that this was not unlawful discrimination or harassment, because a religious occupational requirement exception applied. But the EAT also noted that the tribunal had apparently failed to engage with the question whether the decision not to grant the licence and its communication created an ‘environment’. P argued that this could be inferred from the tribunal’s findings that the refusal obviously caused him stress, would have been humiliating and degrading for someone in his position, and was a stunning blow. However, the EAT found it hard to see that the tribunal had shown how it found that the requisite environment was thereby created. Purpose[51]A claim brought on the basis that the unwanted conduct had the purpose of violating the employee’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment obviously involves an examination of the perpetrator’s intentions. As the perpetrator is unlikely to admit to having had the necessary purpose, the tribunal hearing the claim is likely to need to draw inferences from the surrounding circumstances. Effect[52]In deciding whether the conduct has the effect referred to in S.26(1)(b) (i.e. of violating a person’s (B) dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B), each of the following must be taken into account: 52.1. the perception of B, 52.2. the other circumstances of the case, and 52.3. whether it is reasonable for the conduct to have that effect — S.26(4).[53]The test therefore has both subjective and objective elements to it. The subjective part involves the tribunal looking at the effect that the conduct of the alleged harasser (A) has on the complainant (B). The objective part requires the tribunal to ask itself whether it was reasonable for B to claim that A’s conduct had that effect.[54]In Pemberton v Inwood 2018 ICR 1291, CA, Lord Justice Underhill, gave the following guidance: ‘In order to decide whether any conduct falling within subparagraph (1)(a) has either of the proscribed effects under sub-paragraph (1)(b), a tribunal must consider both (by reason of sub-section (4)(a)) whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) and (by reason of sub-section (4)(c)) whether it was reasonable for the conduct to be regarded as having that effect (the objective question). It must also, of course, take into account all the other circumstances – sub-section (4)(b). The relevance of the subjective question is that if the claimant 10 of 44 does not perceive their dignity to have been violated, or an adverse environment created, then the conduct should not be found to have had that effect. The relevance of the objective question is that if it was not reasonable for the conduct to be regarded as violating the claimant's dignity or creating an adverse environment for him or her, then it should not be found to have done so.’ Subjective element[55]The first part of the statutory test set out in S.26(4) involves examining the act from the complainant’s perspective — that is, whether he or she regarded it as violating his or her dignity or creating the proscribed environment (see para 7.18 of the EHRC Employment Code). This is a factual inquiry.[56]Tribunals should bear in mind that different people have different tolerance levels. Conduct that might be shrugged off by one person might be found much more offensive or intimidating by another. Objective element[57]The objective aspect of the test is primarily intended to exclude liability where B is hypersensitive and unreasonably takes offence. As noted by the EAT in Richmond Pharmacology v Dhaliwal 2009 ICR 724, EAT, ‘while it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the… legislation…) it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase’. It continued ‘if, for example, the tribunal believes that the claimant was unreasonably prone to take offence, then, even if she did genuinely feel her dignity to have been violated, there will have been no harassment within the meaning of the section. Whether it was reasonable for a claimant to have felt her dignity to have been violated is quintessentially a matter for the factual assessment of the tribunal. It will be important for it to have regard to all the relevant circumstances, including the context of the conduct in question.’ Related to a relevant protected characteristic[58]In order to constitute unlawful harassment under S.26(1) EqA, the unwanted and offensive conduct must be ‘related to a relevant protected characteristic’. However offensive the conduct, it will not constitute harassment unless it is so related, and a tribunal that fails to engage with this point will err — London Borough of Haringey v O’Brien EAT 0004/16.[59]Whether or not the conduct is related to the characteristic in question is a matter for the appreciation of the tribunal, making a finding of fact drawing on all the evidence before it – Tees Esk and Wear Valleys NHS Foundation Trust v Aslam and anor EAT 0039/19.[60]The words ‘related to’ in S.26(1)(a) have a broad meaning and holding that conduct that cannot be said to be ‘because of’ a particular protected characteristic 11 of 44 may nonetheless be ‘related to’ it — Hartley v Foreign and Commonwealth Office Services 2016 ICR D17, EAT.[61]Where direct reference is made to an employee’s protected characteristic or he or she has been subjected to overtly racist/sexist/homophobic, etc, conduct, the necessary link will usually be clearly established.[62]Where the link between the conduct and the protected characteristic is less obvious, tribunals may need to analyse the precise words used, together with the context, in order to establish whether there is any (negative) association between the two. Victimisation19. Section 27(2) EqA defines 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…”20. It is necessary to do more than make an allegation that amounts to a criticism, grievance or complaint. The allegation has to suggest that “the criticism, grievance or complaint was in some sense an allegation of discrimination or otherwise a contravention of the legislation” (Beneviste v Kingston University, EAT 0393/05).
Findings of fact
[63]We make the following findings of fact (references are to pages in the bundle unless otherwise stated).[64]The claimant was engaged by the respondent, a housing charity, originally on a casual basis and on 29 October 2018 she started employment with them as a Service Administrator in the Volunteer team. The claimant is educated to Masters degree level.[65]The claimant’s contract of employment starts at [90]. The place of work in the contract is the respondent’s address in London but clause 2 of the contract entitles the respondent to change the work location.[66]Clause eight of the contract confirms that the working hours for the claimant are 9:00 AM to 5:30 PM Monday to Friday. 12 of 44[67]The contract of employment contains a “whole agreement” clause [106] which is in the following terms: “This contract supersedes any previous oral or written agreement, promise or representation between you and the Company (and those acting on its behalf) in relation to the matters contained within it. It contains the whole agreement between you and the Company in relation to your employment as at the date of contract, except for any terms implied by law that cannot be excluded by the agreement of the parties.”[68]The claimant’s first appraisal took place on 17 April 2019 [118 – 134]. The appraisal was undertaken by the claimant’s manager at the time, Tamara Grundman.[69]The appraisal includes setting objectives through a personal development plan (PDP). This is at [131 – 132]. Part of this PDP included, under the heading “Confidence with public speaking, facilitating groups and communicating in challenging situations” the following: “Attend the 2 day training & facilitation skills training Shadow volunteer training sessions Start to co-deliver volunteer training Attend the full day conflict management training Seek advice from advisors regarding delivering training confidently Observing/supporting advisor with volunteer issues/concerns familiarising advisor’s steps with incidents and lone working process/ new roles” [131][70]On 3 May 2019 the claimant emailed Ms Grundman about some work concerns she had [135/136]. These concerns were about workload, an increase in what was expected of her in her role, booking of volunteers and handovers.[71]The last concern raised by the claimant was about interactions in the team. She said: “Lastly, there have been some comments made that although at first might be just humour, seem to be actually quite undermining to both mine and Ellie’s roles, this has led to feeling quite undervalued and disregards the valuable experience we have. Whilst I don’t tend to hold on to these things, if in practice this seems to come through at times then its probably not something to overlook. For instance, I don’t think the meetings recently really considered the needs/asks for admin very much and the things above.”[72]We note that there is no reference here to any of the comments or concerns being discriminatory because of race and no suggestion of discrimination at all.[73]In 2019 Ms Robinson became the claimant’s manager. 13 of 44[74]At a meeting on 24 May 2019 [130/140] the claimant confirmed that, amongst other things: “Team: Everything seems fine now with Ellie. Getting on well with others and having lunches with people from other teams.”[75]The claimant alleges that there was a change in her flexible working arrangements and that her request to work from home for two days a month between January and March 2020 (to assist her with study) were refused by Ms Robinson in October/November 2019. The claimant essentially asserts that while managed by Ms Grundman, she was able to work from home when she chose.[76]At a supervision meeting in December 2019, Ms Robinson and the claimant discussed the working from home issue. Ms Robinson then sent the claimant the supervision notes. The claimant commented on them and emailed Ms Robinson. The relevant documents are at [155 – 158]. In Ms Robinson’s email sending the notes to the claimant she says: “One follow up action for me that I wanted to clarify is below, and I have put a brief summary of our WFH conversation in a separate email.” [154][77]The requests to work from home were initially refused by Ms Robinson. She subsequently reconsidered the request relating to January to March 2020 and a compromise of one day per month was agreed by Ms Robinson. We note the claimant’s comments at [157] on this issue where she says: “Rolling back of flexible working from TG to RR. TG was very flexible, positive and worked collaboratively and cooperatively…I quite rarely worked from home, but when I did it was due to a GP or hospital appointment…” [157], and at [158 where she says of the compromise: “SH was thankful for this being reconsidered but unclear as to why this was being offered as a compromise whereas previously it had been offered as part of regular supervision as a point in health and wellbeing and in recognition of how much this can help maintain balance.”[78]However, it is clear from the entire exchange, and we find as a fact, that there was no general flexibility for the claimant to work from home under her previous manager (if there was the claimant has provided no evidence of this). As the claimant herself said, she rarely worked from home.[79]The claimant says that as part of her appraisal on 28 April 2020, there was a change in her personal development plan (PDP) from co-facilitating training to shadowing training. This is what the claimant has consistently referred to as downgrading, but we find as a fact she was not downgraded. 14 of 44[80]The April 2020 appraisal document starts at [176]. The PDP section starts at [192].[81]Under the heading “Continue building confidence with public speaking, training and facilitating groups and communicating in challenging situations” it states: “- Continue with First Aid training delivery. - Pick up suggested presentation from Amy Gibbons in workplace supporter meeting, continuing in workplace supporter role – championing wellbeing and optimising role. - Continue attending Trainers Forum for First Aid best practice. - Peer researcher training/presentation from policy could be picked up again - Have a look at refreshing Skills and Facilitating training in the future where relevant. -Additional training and development opportunities within Mungo’s where possible. -Learning more from the team around volunteer incidents/investigation - exploring possibilities of building some training using previous professional experience, to be potentially useful for employees of Mungo’s”[82]In 2019 the relevant part of the PDP was that the claimant was to “Shadow volunteer training sessions” and to “Start to co-deliver volunteer training”. It is correct that in the 2020 appraisal the same section of the PDP does not refer to co-facilitating training, but it also does not refer to shadowing. In fact, this is covered in a different section headed “RS and Core delivery”. Under this heading the objective is expressed thus: “-Shadowing both RS and Core sessions, and working towards delivery as part of personal development goals including with Beanie in Bristol where possible. -Ensuring there is a progression from shadowing RS, supporting facilitation of RS where helpful, and then progressing onto shadowing Core after has increased training experience. (Bearing in mind that all face to face currently on hold but will continue afterwards)”[83]Thus, the claimant was to both shadow and “work towards delivery” and, importantly “supporting facilitation”. We find that there is no material difference between the training objectives as between the 2019 and 2020 PDPs.[84]In April or May 2020 Ms White became the claimant’s manager.[85]The claimant went on secondment from her role and her last day in the team before the secondment was 17 July 2020. The claimant complains that her last day was ignored, and that she was not given what she refers to as ‘good wishes’ by Ms White or Mr Morgan.[86]The relevant email chain starts at [208] and ends at [199] (because the emails are in reverse date order in the bundle).[87]The relevant exchanges are as follows.[88]At 9.44 am the claimant emailed Ms White to say: 15 of 44 “I am currently catching up from the two days off which I didn’t do yesterday so it’s unlikely I’ll be able to carry out all the main tasks and before our team meeting this morning (is this still going ahead?)”[89]Three minutes later Ms White responded as follows: “Yeah meeting is on today. Could you prioritise the rota please? The inbox has had cover from people in the team whilst you’ve been off and the rota has kindly been covered by Ange but she’s pretty busy.”[90]At 10.21 the claimant replied to Ms White saying: “I will get started on this now. Perhaps it would make sense to be excused from the meeting if this needs to be completed today in the next 40 minutes?”[91]Thus, it was the claimant’s suggestion that she did not attend the meeting.[92]In response, and in the Tribunal’s view, not unreasonably, Ms White replied a few minutes later to say: “Thank you. It’s up to you if you don’t think you’ll have finished the rota in time, but might be nice to join towards the end to say goodbye!”[93]The claimant then replied saying: “I won’t have this completed in 25 minutes no unfortunately – is someone else able to support if I don’t and then I can still come along?”[94]In response, Ms White asked the claimant if she could pause her work, attend the meeting to say goodbye to the Team and then finish work on the rotas afterwards. The claimant’s response was: “I have to have lunch before the inductions continue.”[95]In a final attempt to seek a compromise Ms White emailed the claimant to say: “Suzanne, I’m happy for you to manage your own timetable today. The bottom line is that please can you prioritise the rota, I am happy for you to forego the team meeting if you feel that the time would be spent better working. You’re welcome to join in at the end to say goodbye, or just send a group email afterwards, or however you choose to leave things.” 16 of 44[96]The claimant chose not to attend the meeting at all and at 10.54 am sent the following email to the Team: “Unfortunately, it doesn’t look like there will be an opportunity to say cheerio/send-off for now which is a shame as I have to complete the rota activities instead of attend the team meeting Thanks everyone for your positive messages and best of luck over the next few months should we not be back at TMS to cross paths. Look forward to catching up soon.”[97]The Tribunal finds that this email was misleading. The email suggests that the claimant was given a choice whether to complete her work on the rotas or attend the Team meeting. The issue however was not about the claimant attending the Team meeting per se, it was about attending to say goodbye before she went on secondment, and we find that she could have attended for a few minutes had she wished.[98]Following her three month secondment, the claimant returned to her Service Administrator role in the Volunteer team in November 2020.[99]In preparation for her return, Ms White emailed the claimant on 16 November 2020 as follows: “I hope you’re well and that you’ve had a rewarding and interesting few months? How have you found your time in the research team? It’s great that you’re coming back on the 30th and we look forward to your return – we are currently reviewing guidelines and tasks to hopefully ensure a smooth transition back to the role, and I’ll be setting up a few meetings in your first week for catch ups with members of the team. Would it be useful for us to speak before your return? Alternatively, if you have any questions about what we’ve been up to please just let me know” [228][100]It is apparent from the claimant’s response that despite the passage of several months, she remained aggrieved by what she perceived had happened when she went on secondment. She said in her email in reply: “I didn’t hear from you about my last email on leaving and beginning the secondment, so it would be good to hear from you, where we go from here in terms of how best to work together as that was a bit disjointing.” [227] 17 of 44[101]In reply, Ms White said: “In terms of us working together, I think it would be worthwhile having a conversation with you, myself and Iver to address some of these issues and lay out a couple of expectations so that on the 30th we are able to start anew and move forwards with a positive working relationship. This would be best held in the week before your return. Can you let me know a time that would work well for you? I can check with Anita if she can spare you for an hour to do this.” [226][102]In the Tribunal’s view that as a reasonable and sensible suggestion. However, the claimant rejected this proposal and said in reply: “It is a really busy time in the Research team as we are in the final stages of preparing for the roundtable presentation with the leadership team, so it will be best to catch up on the detail of everything and with Iver and Maria once I’m back in the role.” [225][103]However, Ms White was clear in her response that there would be a meeting about the claimant returning to her role upon her return from secondment, but that the meeting to discuss working relationships should take place before the claimant resumed her role. However, Ms White was prepared to compromise. She thus replied: “Thanks for getting back to me. So no the initial chat on your first day would be with me and Maria, and that’s just to go through the changes in tasks and to talk through some of the new ways of working that we’ve introduced, which Maria is leading on. The conversation with me and Iver prior to you starting will be to address the issue you raised in your first email about your leaving (I am assuming you were referring to your last day and me asking you to prioritise sending the rota emails) and also to discuss how we can support you in your transition back to the role of administrator, as I imagine it will be a bit of an adjustment. I’d still like this meeting to happen prior to your return, but if you’re not able to attend on the suggested date and time of Tuesday at 2pm, we can reschedule for your first day. I’ll send you an invite so we have that in the calendar.” [224][104]The claimant’s response is worthy of note. She said: 18 of 44 “I’m not comfortable with meeting the two or three of you to discuss what was a personal thought I had shared. As a one to one conversation, this is something I would check with someone before sharing it with three other members of the team so I would have appreciated you checking whether I was okay with this first. I’m also not sure why it is being responded to with the formality of myself, you as manager, the head of our team and also shared with Maria, a new manager who I haven’t yet been able to meet just yet. That’s three managers and me so perhaps you can see how this could be construed. I feel a chat to understand why I didn’t receive a reply from you would suffice after four months of not being in the role, as its definitely not something at the forefront of my mind and I’m not sure why this is being responded to now. I’m open to understanding what the aim or intention is if something has been mislaid.” [223][105]It seems to the Tribunal that not unreasonably the respondent, in particular Ms White, wanted to try to clear the air. It was the claimant who said in her first email that “it would be good to hear from you, where we go from here in terms of how best to work together as that was a bit disjointing” and we find that in the circumstances it was entirely reasonable for Ms White to wish to involve her manager, Mr Morgan. It is also surprising that the claimant said that the matter was not in the forefront of her mind when it was effectively the first matter, she referred to in her initial email to Ms White concerning her impending return from secondment.[106]In the end Ms White simply insisted that the meeting with Mr Morgan would go ahead on the claimant’s return to the Team [222]. In the Tribunal’s view this was entirely reasonable.[107]In November 2020 there was a change in the claimant’s line manager from Ms White to Ms Dimouli.[108]Between 18 and 26 January 2021 there was an issue in relation to an email sent by the claimant which resulted in her receiving an informal warning from Ms Dimouli. The matter unfolded as follows: 108.1. On 18 January 2021 a Volunteer completed a Health Risk Assessment form, a requirement of volunteering for the respondent. In the volunteer’s email to the claimant returning the form, the volunteer said the form had “some slightly racially discriminatory overtones” [516]. 108.2. In response the claimant said to the volunteer “Your points…resonate, aspects of which have been frequently echoed in another capacity as part of our BAME network activities in sharing feedback and advice to different areas of the organisation, but unfortunately isn’t always taken forward” 19 of 44 [515]. 108.3. On 27 January 2021 the respondent’s Executive Director of People and Governance, Helen Giles emailed Mr Morgan and others indicating that the concerns expressed by the volunteer about the form were being taken seriously at the highest levels of the respondent [512]. 108.4. On the same day, Ms Giles emailed Mr Morgan about the claimant’s email to the volunteer as follows: “I would draw your attention to the highlighted parts from Suzanne’s emails below. Please can you call me back to discuss.” [511]. (reference to the highlighted part is to the section quoted above at 105.2) 108.5. On the same day Mr Morgan contacted Ms Dimouli as follows. “Subject: FW: Volunteer Feedback on the Health Risk Assessment form Hi , Can you call me re this… I have just seen Suzanne’s response to the email below which are inappropriate and are conversations/views that should not be aired in public. I have Helen waiting for me to call so I suspect that she will want to progress this under conduct.” [510][109]As a result of this concern the clamant was given an informal warning. We find as a fact that the concern originated from Ms Giles and that it was Mr Morgan who determined that an informal warning would be sufficient. Ms Dimouli, who was managing the claimant at the time, delivered the warning. We also find that notwithstanding the respondent’s disciplinary policy stating that there should be a record kept on file of informal warnings, that was not done in this case.[110]In April 2021 the claimant provided feedback for Ms White’s forthcoming appraisal.[111]The claimant’s 2021 appraisal took place on 19 May 2021 [239 et seq]. At no point in the appraisal did the claimant raise any concerns about discriminatory language or conduct either towards her or in general.[112]On 10 June 2021 a Volunteer gave a presentation during volunteer week, an event hosted by the Respondent. In the presentation were two slides which the claimant felt were racist. She provided feedback to Ms Rowe, Volunteer Services Advisor for the South West. Ms Rowe contacted the volunteer who had made the presentation and explained that: 20 of 44 “We did have some feedback though from a participant who shared that the whole presentation was uplifting and very inspiring but there was one specific image (of the angry black man on slide 18) that “seemed to be evoking some loaded historical images and racial stereotypes that can be offensive to people from a BAME background”. They did say they believe it was completely unintentional but asked whether the presentation could be edited to have the image removed before it being circulated?” [272][113]The Tribunal finds that at this point Ms Rowe had not understood that there were two images of concern; the one she refers to (the angry black man slide) and a second image showing the ‘ascent of man’.[114]In the event, the slides were amended by the volunteer and the one slide referred to by Ms Rowe was removed. The slides were circulated, and the claimant complained about the failure to remove the second image. In response Ms Rowe emailed the claimant to say: ‘I am sorry the amendments made were not satisfactory, following our conversation yesterday I have reflected that it should not be on you to go back to [the volunteer] about this, however I have decided that I will not go back to [the volunteer] as I believe it would be too much to ask her to amend again. If you think this is the wrong call please do have a chat to Iver or Maria about it.’[115]On 2 July 2021 a meeting between the claimant and Ms Dimouli took place regarding the feedback she had given as part of Ms White’s appraisal. The claimant’s feedback was critical but in general terms and as much about the respondent as Ms White. The claimant said that when giving the feedback she had given did have a different audience in mind [283]. The claimant was emailed by Maria Fimouli who was undertaking Ms White’s appraisal, and reminded that feedback should be specific with tangible examples.[116]In July 2021 the claimant had a supervision meeting with Ms White. The meeting did not go well. The notes are at [609 – 610]. During the meeting, the claimant complained that: “Haven’t felt good as a team. Stand-ups don’t feel like a safe space – not an environment that feels authentic. Not an environment of trust and confidence. Team culture really not good.”[117]Ms White expressed concern and asked the claimant for “examples of situations that have made her feel uncomfortable or unsafe” and the clamant responded by saying that “she is generally quite a proactive person and has had separate conversations with individuals – don’t want to single people out, it’s mostly just a team culture”. The claimant went on to say “it is team culture – comes through 21 of 44 in insensitive interpersonal communication. Comes through in actions and how people speak about volunteers. No examples, but feels victimised”.[118]The following extracts perhaps best indicate the difficult position the claimant put her manager, Ms White, in: “IW said she wants to help and support with this, does SH understand that it can be hard to bridge the gap/go from a-b without any examples or resolutions SH said she doesn’t want to think of resolutions, that is for others to do. IW explained that if we don’t fully understand what the issues are it is hard for us to do so, and for us to move forwards and for her to feel more positive. SH begun to express that this was an example of her feeling unsafe and the work environment not being comfortable – she expressed that she was not seeing any empathy from IW in this dialogue. IW paused and expressed that she is sorry if that hasn’t come across – she is happy just to listen to issues and not find solution, but as her manager is concerned if SH doesn’t feel comfortable in work setting and naturally wants to take this seriously and support. IW asked if SH would like to talk more about this so that IW could just listen without trying to find resolution SH said no she would not anymore, and is frankly surprised and shocked at IW’s response and lack of empathy.”[119]In short, the claimant raised a generalised but nevertheless potentially serious concern. Ms White wanted to help her by asking for specific examples of the behaviours the claimant was complaining about. The claimant refused to provide these and then accused Ms White of lacking empathy. It is difficult to see how Ms White could have done more in the circumstances and the Tribunal notes that this was far from the first time that the claimant had made generalised complaints without providing any actual examples of what it was she was complaining about.[120]Ms White informed her manager Mr Morgan about the supervision and between 5 August 2021 and 10 September 2021 Mr Morgan contacted the claimant to try to organise a meeting with her about the issues she had raised.[121]The key exchanges on 5 August 2021 were as follows: 121.1. Mr Morgan emailed the claimant to say that he was aware of the concerns raised by her and wanted to meet to discuss them [298]. 121.2. The claimant said she had not raised any “particular serious concerns” (sic). 121.3. Mr Morgan responded to say that given the apparent serious nature of the concerns he wanted to meet with her to discuss them [297]. 22 of 44 121.4. The claimant then claimed that what was said by her in the supervision meeting was confidential and that her confidentiality had been broken [296]. 121.5. Mr Morgan said he would meet with the claimant the following week and sent her a diary appointment for 10 August 2021 [300].[122]Mr Morgan decided that because of the claimant’s concerns she should not be managed by Ms White and he arranged for her management to be undertaken by Ms Dimouli. Ms Dimouli emailed the claimant to confirm this [301]. At no point did the claimant complain about this change or any lack of consultation about it.[123]On 6 August 2021 Mr Morgan asked Ms Dimouli to provide him with any details of the claimant’s concerns in preparation for his meeting with the claimant scheduled for 10 August 2021 304]. She did so [305 et seq].[124]On 9 August 2021 the claimant went off sick.[125]The Tribunal finds that at this point the respondent had been trying it’s hardest to understand what it was that the claimant was actually complaining about but without any success. The claimant deliberately failed to assist the respondent to deal with any of the issues she was raising. She refused to provide details of her concerns or complaints and when pressed became accusatory. She was by any reasonable measure willfully obstructive.[126]The claimant returned from sick leave on 13 August 2021 [315].[127]The claimant had a 1:1 meeting with Ms Dimouli on 13 August 2021. Notes of that meeting are in an email [318].[128]On 20 August 2021 the claimant had a 1:1 meeting with Ms Dimouli and Mr Morgan.[129]On 8 September 2021 the claimant was signed off sick for two weeks. She submitted a sick note on 10 September 2021.[130]Between 10 and 15 September 2021 the claimant was in communication with Joan Scott (HR).[131]Ms Dimouli had taken leave until 13 September 2021. On her return to work on 14 September 2021 she contacted the claimant by email using the claimant’s personal email address [324]. The purpose of Ms Dimouli’s email was to let the claimant know she was available if there was anything she could do to assist the claimant. The claimant did not respond to the email.[132]Ms Dimouli emailed the claimant again, on 20 September 2021, to refer her to Occupational Health [324]. The claimant did not respond to this email.[133]The claimant’s continued absence triggered level 2 of the respondent’s Sickness Absence policy. 23 of 44[134]The claimant has complained about being contacted by Ms Dimouli using her personal email address, but we can find no evidence that she requested to not be contacted using that email address, and it is clear that even if she had, Ms Dimouli was not aware of it.[135]On 20 September 2021 the claimant raised a grievance [332 – 351].[136]The grievance was acknowledged on 22 September 2021 [352]. Ms Tuffin, Director of Quality, Information and Involvement, was appointed to deal with the grievance, and she wrote to the claimant on 24 September 2021 to confirm the procedure that would be followed and to invite the claimant to a grievance meeting on 4 October 2021.[137]The claimant commenced ACAS Early Conciliation which took place between 22 September 2021 and 20 October 2021.[138]On 30 September 2021 the claimant submitted a sick note.[139]On 1 October 2021 the claimant submitted a sick note and on 1 October 2021 Ms Dimouli wrote to the claimant to tell her that her continued absence had triggered level 2 of the respondent’s Sickness Absence policy and to arrange a video meeting [324]. The claimant did not respond to this email.[140]The grievance meeting between Ms Tuffin and the claimant took place on 4 October 2021. At the meeting the claimant told Ms Tuffin that she would be willing to return to work in another team [369]. Ms Tuffin confirmed that there was administrative work available for the claimant to do in the Involvement and Inclusion team [366/367].[141]The claimant’s latest sick note ran out on 7 October 2021, but she failed to return to work. The claimant submitted a further sick note on 11 October 2021.[142]Witness interviews were undertaken by Ms Tuffin between 8 and 15 October 2021.[143]On 11 October 2021 Alice Moore, Involvement and Inclusion Manager, wrote to the claimant to confirm that she would be managing the claimant’s absence given that the claimant had requested that it not be managed by the Volunteer team mangers [375].[144]On 12 October the claimant was sent a copy of the minutes of her meeting with Ms Tuffin on 4 October 2021 [400]. The notes are at [402 – 408].[145]On 13 October 2021 Ms Tuffin offered the claimant a temporary move to another team as part of the efforts to get the claimant back to work.[146]On 18 October 2021 the claimant emailed Ms Tuffin [410/411]. In the email the claimant said: Firstly, thank you for sending the minutes through. I have read these and 24 of 44 added some comments/edits and have also passed these onto Shanice for comment. Please can I ask that she is cc'd into our communications regarding the grievance? Thank you for your email about offers of support and return to work from Alice. I can confirm I have now received communication from Alice, however not for any offer of support just information about the return-towork procedure. My understanding from the meeting was that this would be offered and clarification sought from HR on how the two policies interact. Do you have information on this? Thank you for also looking into returning to another team. Please can you confirm whether this is being offered only during the investigation, if so, how long would this be, or for if it is for a longer period of time? This is important for me to reflect on and consider the impact on my health at this time. Would this be on a part-time or full-time basis? In another email, you mentioned any further information to send you. Please can you remind me of when you need this by and I will send it separately?”[147]On 19 October 2021, Ms Tuffin responded to the claimant by email which appears at [410]. At the hearing the claimant confirmed that this was the last straw which caused the breach of trust and confidence. The text of the email is therefore highly relevant. Ms Tuffin said: “Hi Suzanne That’s not a problem, I can copy Shanice in. Re the two policies, I understand they are separate and do not overlap. I am managing the grievance process and Alice the absence process. I am seeing Alice today and will ask that she regularly calls you in terms of supporting you whilst you are off sick. Re working in the Involvement and Inclusion team – this could be on a part-time or full-time basis and rest of the time would be counted as sickness absence. I would propose this is for a set period, up to 12th November, whilst I complete my investigation, and it could then be reviewed. If this sounds suitable to you, I can ask Alice to contact you with more details. Re providing other information, would the end of this week be feasible? I have completed all my initial interviews and am now reviewing relevant paperwork. Kind regards, Claire” 25 of 44[148]The claimant resigned on 22 October 2021 [414 – 416].[149]The claimant presented her claim on 27 October 2021.
Discussion and conclusions
[150]We turn now to our conclusions on the allegations set out in the list of issues.[151]We shall deal with the allegations under the headings and using the numbering set out in the Appendix, however we shall deal first with the alleged protected acts in respect of the victimisation claims. Protected acts[152]In relation to victimisation, there are four alleged protected acts as follows: 152.1. on 18 January 2021 in a reply to an email about a volunteer complaint about racism, 152.2. in April 2021 by making comments in the 360 degree appraisal feedback to Ms Dimouli about Ms White, 152.3. in an email in about July 2021, after a meeting with Ms Dimouli, where the claimant alleged race discrimination and harassment, 152.4. on 5 August 2021, in the disclosure about safe space where the claimant referred to discriminatory cultures within the team, specifically the new safe spaces strategy.[153]We remind ourselves that to be a protected act where allegations are made, it is necessary for the claimant to do more than make an allegation that amounts to a criticism, grievance or complaint. The allegation has to suggest that “the criticism, grievance or complaint was in some sense an allegation of discrimination or otherwise a contravention of the legislation.”[154]The first protected act relates to this comment in the email: “Your points…resonate, aspects of which have been frequently echoed in another capacity as part of our BAME network activities in sharing feedback and advice to different areas of the organisation, but unfortunately isn’t always taken forward”[155]This was not a protected act. It is no more than a criticism of the respondent for not taking forward advice[156]We find that the remaining protected acts do meet the requirements of section 27(2)(d) of the Equality Act 2010.[157]We now turn to the issues. 26 of 44 Flexible working – constructive dismissal, direct race discrimination, harassment[158]These are two issues around working from home, the first relating to what we might term general flexibility and the second relating to working from home for study.[159]As we have set out above, the contractual position on hours of work which were 9.00 am to 5.30 pm Monday to Friday.[160]There is no evidence of any general arrangement between the claimant and her previous manager Ms Grundman allowing the claimant to work from home.[161]The claimant asked Ms Robinson if she could work from home on Wednesdays twice per month for her university course. As this was a request for working from home starting the following January, and there being no reference to a previous similar arrangement we are satisfied that both requests for working from home (the general flexibility request and the two days per month request) were for wholly new arrangements.[162]As set out in our factual findings there was an initial refusal for the fixed days working from home.[163]The claimant argued that the previous administrator, Ellie Fearn (the comparator relied upon in the direct discrimination claim in respect of issue 1.2 of the list of issues) was always allowed to work from home.[164]In any event, on reconsideration, Ms Robinson offered to allow the claimant to work from home one day per month between January and March 2020. She explained her business rationale for the proposal.[165]In respect of time off for appointments there appears to the Tribunal to have been no change to what had been happening previously.[166]Neither issue 1.1 or 1.2, separately or together amounted to a breach of the implied term.[167]In relation to alleged harassment, the claimant did not give any credible evidence that, and it is impossible to find any evidence that, Ms Robinson’s decisions had the purpose or effect of either having violated the claimant’s dignity or having created an intimidating, hostile, degrading, humiliating or offensive environment for her. She continued to work and did not raise the matter again.[168]In relation direct discrimination and causation (the ‘reason why’), the evidence shows that to the reason for the treatment related to what Ms Robinson perceived to be the needs of the business.[169]There is no direct evidence, and no evidence from which we could infer that she made her decisions because of race.[170]Further, the respondent’s evidence in relation to Ms Fearn, which was unchallenged by the claimant, was that she was allowed to work from home as a 27 of 44 reasonable adjustment and therefore she is not in materially the same circumstances as the claimant.[171]In the circumstances the decision by Ms Robinson was reasonable and untainted by race discrimination.[172]We consider that a hypothetical, white Service Administrator seeking the same arrangements as the claimant would have been subject to the same considerations and decisions as taken in the claimant’s case.[173]For these reasons the claims of harassment and direct discrimination in relation to issues1.1 and1.2 fail and are dismissed. Personal Development – constructive dismissal, direct race discrimination and victimisation)[174]Allegations 1.3 and 1.4 are that in April/May 2020, during the claimant’s appraisal, Ms White and Ms Robinson demoted part of the claimant’s personal development plan by changing it from co- facilitating training to shadowing training.[175]We have made detailed findings about this above and can deal with the matter quite shortly.[176]The claimant is simply wrong. There was no change to her objectives around training. There is a slight change in the wording of the relevant objectives and a move of those objectives to a different section within the appraisal form, but in both years, there were shadowing and facilitating objectives. There was no substantial change, no downgrading, no demotion.[177]For these reasons the claim of direct discrimination in relation to issues 1.3 and 1.4 fails and is dismissed.[178]In relation to victimisation, the claim would fail on its facts however, in any event the issues arose prior to the claimant’s first protected disclosure and so she cannot have been victimised as a matter of law.[179]For these reasons the claim of victimisation in relation to issues 1.3 and 1.4 fails and is dismissed.[180]Finally neither of these allegations separately or together amounted to a breach of trust and confidence. An example of alleged isolation and exclusion – constructive dismissal, direct race discrimination and harassment[181]The first allegation under this heading centres around the claimant’s last day before she went on secondment. She claims the ‘event’ was ignored and she was not given good wishes by Ms White or Mr Morgan.[182]We have set out the entire chain of emails in our findings of fact. Contrary to the claimant’s case, which is essentially that she could not attend the team meeting 28 of 44 to say goodbye to the team, Ms White was clear that the claimant could attend the meeting in its entirety or attend for a short period to say goodbye to the team, Ms White and Mr Morgan. The claimant chose not to attend.[183]The argument from the claimant that she could not attend as she had to finish her work on the rotas as required by Ms White is somewhat undermined by the fact that when she left to go on secondment, she had not in fact completed the rota work, and so not completing a little bit more of it so that she could attend the team meeting for a few minutes would have made little difference.[184]We also agree with the submission by Ms McCombie that the claimant’s final email in the chain to Ms Rowe [201] distorts the truth by claiming that the claimant did not “have the option to attend the team meeting and it was thought best I get in touch with everyone for a farewell by email”. On any reasonable reading of the evidence the claimant clearly was given the option to attend, and she chose not to.[185]Ms White’s actions were reasonable and proportionate in all the circumstances, and what transpired did not amount to a breach of the term of trust and[186]In relation to direct discrimination the evidential comparators identified by the claimant. – Ms Fearn, Ms Robinson, Ms Soper and Ms Grundman– were in very different circumstances.[187]The unchallenged evidence of Ms Tuffin, which we accept, was that the first three were leaving to go on maternity leave and the last was leaving the respondent altogether. The claimant was going on secondment for three months.[188]There is no direct evidence or evidence from which we could infer that what occurred on the claimant’s last day before her secondment amounted to direct race discrimination or harassment related to race.[189]The second allegation is that on her return to her role in November 2020 the claimant contacted her manager to ask to have a conversation over the phone about being ignored and she complains that Ms White escalated this to a meeting with all three managers instead.[190]Pending her return the claimant raised with Ms White what had taken place on her last day before she went on secondment. She stated that “it would be good to hear from you, where we go from here in terms of how best to work together as that was a bit disjointing”.[191]Clearly this was an ongoing concern for the claimant and so it seems to the Tribunal to have been perfectly reasonable, given the concerns expressed by the claimant, to want to deal with this at a more senior level. It is also pertinent to note that Ms White suggested a meeting with her and Mr Morgan, not three managers and no such meeting took place. 29 of 44[192]Ms White’s actions were again reasonable and proportionate in all the circumstances, and what transpired did not amount to a breach of the term of trust and confidence.[193]In relation to this allegation there is no direct evidence or evidence from which we could infer that Ms White’s wish to meet with the claimant and Mr Morgan was because of race or that it amounted to harassment related to race.[194]The final allegation under this heading is that the cclaimant’s concerns about Ms White were dismissed by Mr Morgan and she was told to ignore Ms White’s conduct.[195]The Tribunal was a little unclear about this allegation given the evidence, but in any event we consider that the claimant has somewhat misrepresented her discussion with Mr Morgan. The claimant says that Mr Morgan told her to ignore Ms White’s conduct, but he had complaints from both Ms White and the claimant and we accept his evidence that having spoken to both of them they agreed to draw a line under what had occurred and move on; to start afresh as it were.[196]In the circumstances Mr Morgan’s actions were reasonable. Nothing in the above issues either separately or cumulatively breached the term of trust and[197]In relation to this allegation there is no direct evidence or evidence from which we could infer race discrimination and there is no evidence of harassment. Informal warning – constructive dismissal, harassment related to race and victimisation[198]We have set out above in some detail how the informal warning arose.[199]Essentially, the claimant told a person external to the respondent that the respondent did not take advice on issues related to race discrimination forward.[200]Whether true or not, this had the potential to bring the organisation into disrepute and it is no surprise to the Tribunal that the respondent took this seriously.[201]The claimant has conflated or perhaps confused expressing her views with how and more importantly to whom she expressed them. There is nothing in the evidence suggesting the claimant should not hold or express the view she expressed.[202]There are in fact six allegations concerning this waring and our conclusions on them, based on our findings of fact are as follows: 202.1. in relation to the reason for the informal warning it is not true that the claimant was supporting a volunteer who had complained that the health form was racist. The volunteer had said that based on statistics the form had “some slightly racially discriminatory overtones” following which, and seemingly on behalf of the respondent (the claimant’s email was sent from her work email), the claimant agreed and criticised the respondent, her employer. In the circumstances an informal warning was a measured and proportionate response, 30 of 44 202.2. in relation to not being given notice of what about the meeting at which the informal warning was given, was about, given its informal nature we find that whilst perhaps a ‘heads-up’ might have been better, it is not a requirement to tell an employee the reason for every meeting in advance. 202.3. in relation to challenging the ‘allegation’ for which the warning was given, the claimant did have the opportunity to do that at the meeting, 202.4. in relation to the purported lack of investigation, that begs the question what the claimant thought needed to be investigated. This criticism seems to the Tribunal to arise from the claimant’s confusion between what her views were and how and to whom she expressed them. The evidence of what she did is in her email. No further investigation was required, 202.5. in relation to the non-recording on the warning, given that the result of this was that the claimant did not have an informal warning recorded on her personal file, this does not seem to the Tribunal to be a detriment even though it does appear to be in breach of the letter of the disciplinary policy, 202.6. finally, in relation to the reason for the warning, there is simply no evidence that it was given to prevent or hinder the claimant attempting to support the volunteer with their complaint. There is no evidence in fact that she was attempting to support the volunteer with their complaint, she was merely agreeing with the substance of the complaint.[203]In all the circumstances the giving of the warning and the process followed was reasonable. None of the above issues either separately or cumulatively breached[204]In relation to these allegations there is no direct evidence or evidence from which we could infer harassment related to race or victimisation. Anonymous appraisal feedback – constructive dismissal and victimisation[205]There are five allegations under this heading.[206]The claimant should have given specific feedback on Ms White’s performance but instead she gave general feedback, with no examples.[207]The claimant’s complaint seems to be that this was not anonymised but it was not included in the appraisal and so we cannot accept this criticism of the respondent.[208]There seems to be a complaint that the claimant was asked to discuss her feedback in a follow-up meeting with Ms Dimouli. We cannot see the problem with this. The claimant raised complaints and was asked to discuss them. That seems to be a perfectly reasonable response by the respondent. 31 of 44[209]The claimant complains that when she did discuss the matter with Ms Dimouli she implied that anonymous feedback “was not the appropriate channel”. We consider that Ms Dimouli meant that anonymous feedback was not an appropriate way to air individual concerns of the type raised by the claimant. Whether that is right or wrong, it was clearly Ms Dimouli’s view, and we cannot see this as in any sense detrimental to the claimant.[210]The claimant complains that the way she had given the feedback and/or the content was treated this as a capability issue. In fact, the evidence is that in her meeting with Ms Dimouli, the claimant said that the feedback she had given did have a different audience in mind, that is not Ms White’s appraiser. The claimant was emailed by Maria Fimouli and reminded that feedback should be specific with tangible examples. The Tribunal does not construe that evidence as the respondent making this a capability issue. Ms Fimouli was simply reminding the claimant what feedback was for and how it was best given. That seems reasonable in the circumstances.[211]Lastly the claimant complains that, in contrast, no action was taken with Ms White. The claimant says that some form of learning development, at least, should have occurred and actions to prevent any bullying and harassment as per the policy. But again, the claimant is conflating two entirely different issues. What was said to the claimant was simply about what feedback for an appraisal was for and how it should be given. At this point the claimant had given no specific examples of bullying or harassing behaviour by Ms White. Her comments were all general.[212]We are satisfied that the respondent’s handling of what was by any measure a minor issue was reasonable and proportionate. None of the above issues either separately or cumulatively breached the term of trust and confidence.[213]The reasons for what Ms Dimouli and Ms Fimouli did are clear and there is no evidence from which we decide or could infer victimisation. Images – constructive dismissal, harassment and victimisation[214]We have set out the facts relating to this matter in detail above.[215]The first paragraph under this heading is that the respondent “failed to address 2 racially offensive images in a volunteer presentation during volunteer week”.[216]That begs the question what is meant by ‘failed to address’. The slides belonged to the volunteer, so the respondent had no right to demand their removal, but Ms Rowe did agree to write to the volunteer. She misunderstood that there were two images and in her email to the volunteer she only referred to removing one, which was done. That was an honest mistake.[217]We accept that on finding out that there was a second slide Ms Rowe decided not to go back to the volunteer. We do not see how this is any meaningful sense a detriment to the claimant. 32 of 44[218]The claimant complains that the respondent did not respond to the claimant, but it is unclear why she needed a response. She had made known the problem, it was dealt with in part and then Ms Rowe decided she had gone as far as she could. The claimant was aware of this from her exchange of emails with Ms Rowe on the subject.[219]We do not consider that the claimant suffered any detriment over this issue and for those reasons the claims for harassment and victimisation cannot stand. Furthermore, nothing done in relation to this issue breached the term of trust and Safe Space Concern – constructive dismissal, Harassment related to race, direct race discrimination and victimisation[220]The issues raised under this heading are not in fact about the respondent’s workplace not being a safe space. The issues are: 220.1. that after a supervision meeting at which the claimant raised the safe space issue, Ms White told senior managers about what the claimant had said which is in breach of confidence, 220.2. that Mr Morgan put pressure on the claimant to talk about her concerns, by persistent emails asking the claimant to meet, when she felt unable to do so, and 220.3. that Mr Morgan told the claimant she had raised a serious concern when she says her concern was private.[221]We can deal with these issues fairly succinctly.[222]There is nothing in the supervision notes to suggest that the claimant said that what she was saying was in confidence. The claimant was raising potentially serious concerns (although she never provided any details) and it is not surprising that Ms White felt the need to escalate these to her manager and head of the service. There was simply no breach of confidence.[223]Mr Morgan asked the claimant to meet to discuss her concerns and she refused.[224]The claimant has confused ‘serious’ and ‘private’. Even if her concerns were private that does not mean they were not serious.[225]It seems to the Tribunal that, in our experience, if an employee tells their manager of potentially serious concerns related to work, the reasonable expectation is that the manager will act on those. If an employee does not wish a manager to act, then why raise them? Alternatively, if they are being raised but the employee does not want anything done about them, they should be explicit about that and in this case the claimant was not. 33 of 44[226]The respondent behaved reasonably in all respects in relation to these allegations. The claimant suffered no detriment. None of the above issues either separately or cumulatively breached the term of trust and confidence.[227]In relation to these allegations there is no direct evidence or evidence from which we could infer direct discrimination, harassment related to race or victimisation. Change of Manager – constructive dismissal and victimisation[228]This is the complaint that following a supervision during which the claimant criticised Ms White, the decision was taken to change the claimant’s manager from Ms White to Ms Dimouli with no consultation or explanation, and temporarily to Mr Morgan.[229]There was in fact no change of manager to Mr Morgan, he merely covered for Ms Dimouli when she went on holiday.[230]We have set out the way in which this came about above. In short, we repeat what was in essence the key factual finding which is that Mr Morgan decided that because of the concerns raised by the claimant about Ms White, she should not be managed by Ms White and he arranged for her management to be undertaken by Ms Dimouli. That was done to protect the claimant on the assumption that what she was saying might be true. We do not see how the clamant says this was a detriment in all the circumstances.[231]Ms Dimouli emailed the claimant to confirm the change. At no point did the claimant complain about this change or any lack of consultation about it.[232]There was in our judgment, no requirement for consultation. It was a management decision taken in what was thought to be the best interests of the claimant and for no other reason. As we have said, we do not see how the claimant can claim she suffered any detriment when the person about whom she was complaining was removed from line management of her.[233]This complaint is wholly unmeritorious. The respondent behaved responsibly and reasonably. None of the above issues either separately or cumulatively breached[234]In relation to this allegation there is no direct evidence or evidence from which we could infer direct discrimination, harassment related to race or victimisation. Grievance – constructive dismissal and direct race discrimination)[235]There does not appear to the Tribunal to be an allegation under this heading, merely a statement of fact that a grievance was raised, and the claimant went off sick. Appropriate processes were not followed to facilitate a return to work – constructive dismissal 34 of 44[236]Given that once the claimant raised a grievance, she went off sick and was too unwell to work we cannot understand what the basic criticism of the respondent is in relation to returning to work.[237]However, the respondent did do what was appropriate in the circumstances by offering the claimant the chance to work in another team.[238]It is unusual to suspend people who are the subject of a grievance but in this case if the claimant is arguing that suspending the managers would have facilitated her return to work, we find that surprising given her criticisms which went much wider than just managers and encompassed team culture and dynamics.[239]Finally, in relation to the use of the claimant’s personal email address, we accept the evidence of Ms Dimouli that she had not been told not to use that address and when she was told, she stopped using it.[240]We consider that the respondent has acted reasonably in relation to trying to get the claimant back to work and in communicating with her during her sickness absence. None of the above issues either separately or cumulatively breached Summary conclusion[241]The claimant said that the last straw was Ms Tuffin’s email of 19 October 2021. That, in our judgment cannot be a straw, it is simply a response to the claimant and in the context of a constructive dismissal claim is wholly innocuous. However, she resiled from this under cross-examination and in the end, we remain unclear as to what the last straw was. We do know of course that the claimant started early conciliation on 22 September 2021 and therefore it seems likely that she had considered her position with the respondent by that stage.[242]However, the point is moot because, as we have found, throughout their interactions with the claimant the respondent has bent over backwards to accommodate her and to deal as best they could with the many and various general concerns she raised. It was the claimant who in fact made it difficult for the respondent by consistently refusing to engage with them on the issues she was raising. In short, none of the above issues separately or cumulatively come close to breaching the implied term of trust and confidence.[243]For those reasons the claim for constructive unfair dismissal fails.[244]Finally, as we have indicated, there is no evidence from which we could conclude that there was direct race discrimination or harassment related to race. On the question of inferences, there was no evidence from which we could infer discrimination or harassment, and we are satisfied that the respondent’s explanations for what it did are supported by the contemporaneous evidence and 35 of 44 are wholly untainted by race discrimination and for those reasons the claims of direct race discrimination and harassment related to race fail and are dismissed. Employment Judge Brewer Dated: 23 January 2025 Appendix Agreed list of issues NOTE: after paragraph 1.7 the numbering differs from the numbering in the original case management order as that order contains two 1.7s The Complaints 36 of 44 2. The Claimant is making the following complaints:2.1 Unfair constructive dismissal;2.2 Harassment relating to race;2.3 Direct race discrimination;2.4 Victimisation. The Issues Unfair dismissal
The Complaints
[1]Did the Respondent do the following things: Flexible working (also harassment, direct discrimination)1.1 In about November 2019, following a change in management, the Claimant’s new manager, Ms Robinson, changed her flexible working so that she could no longer work from home (except where hospital appointments were not available at the beginning or end of the working day). This was different treatment to the administrative assistant.1.2 In November the Respondent refused the Claimant’s request to work from home January to March 2020 for 2 days per month to help with completion of her Masters which had been allowed by her former manager. Although this was reconsidered, it was different treatment to the administrative assistant. Personal Development (also direct discrimination, victimisation)1.3 In April/May 2020, during the Claimant’s appraisal, Ms White and Ms Robinson demoted part of the Claimant’s personal development plan by changing it from co- facilitating training to shadowing training.1.4 The Claimant will say this was because of discrimination, including feedback Ms Robinson had requested from the Claimant about diversity and inclusion and because she had previously raised a grievance about workload and role changes. An example of alleged isolation and exclusion,1.5 In about July 2020 the Claimant’s last day was ignored and she was given no good wishes by Ms White and Mr Morgan on the day she was going on secondment.1.6 On return to her role in November 2020 the Claimant contacted her manager to ask to have a conversation over the phone about being ignored and she escalated this to have a meeting with all 3 managers instead.1.7 The Claimant's concerns about Ms White were dismissed by Mr Morgan and she was told to ignore Ms White’s conduct. Informal warning (also harassment, victimisation) 37 of 441.8 In about January 2021 the Claimant sent an email dealing with a volunteer complaint of racism in the recruitment process. The Claimant had supported the volunteer to resolve their complaint of the racist volunteer form. Ms Dimouli gave the Claimant an informal warning for a line in her email.1.9 The Claimant was not given any warning that the meeting was about this.1.10 The Claimant was not given the chance to challenge the allegation that she had broken the Code of Conduct, so there was no investigation.1.11 The warning was not recorded.1.12 The warning was given to hinder the Claimant’s attempt to support the volunteer with their complaint. Anonymous appraisal feedback (also victimisation)1.13 In about April 2021 the Claimant gave anonymous 360 appraisal feedback about negative, degrading treatment she had received from Ms White. The feedback was not anonymised.1.14 She was asked discuss it in a follow-up meeting with Ms Dimouli.1.15 Ms Dimouli implied anonymous feedback was not the appropriate channel. And treated this as a capability issue of the Claimant.1.16 In contrast, no action was taken with Ms White. The Claimant says some form of learning development, at least, should have occurred and actions to prevent any bullying and harassment as per the policy Images (also harassment and victimisation)1.17 In about June 2021 the Respondent failed to address 2 racially offensive images in a volunteer presentation during volunteer week. (An image of a black African man portrayed as aggressive repeated in the presentation; and a historical image depicting supposed evolution of non-white people, or as the Claimant explained racial science.)1.18 After the Claimant had suggested to a more senior manager, Ms Dimouli, that the images were removed, her complaint was passed to the team member involved, Ms Rowe.1.19 Ms Rowe contacted the Claimant but refused to go back to the volunteer to amend the images. She asked the Claimant to do so. She was defensive and dismissive about the Claimant’s suggestion.1.20 After complaint, managers did nothing to address the images or respond to the Claimant. 38 of 44 Safe Space Concern (also Harassment or direct discrimination and victimisation)1.21 At a supervision meeting on 5 August 2021 when the Claimant said she did not consider the team to be a safe space, her manager, Ms I White, responded in a hostile and confrontational way with no support;1.22 After a break at the supervision meeting, Ms I White did not return to it, nor contact her afterwards for the remaining time the Claimant was employed. Senior Management Pressure (also harassment and victimisation)1.23 After the supervision, Ms White told senior managers about what the Claimant had said about the safe space issue. The Claimant says this is in breach of confidence;1.24 Mr Morgan, senior manager, put pressure on the Claimant to talk about her concerns, by persistent emails asking the Claimant to meet, when she felt unable to do so.1.25 Mr Morgan told the Claimant she had raised a serious concern when she will say her concern was private. Change of Manager (also victimisation)1.26 After the supervision on 5th August, the Respondent changed her manager from Ms White to Ms Dimouli with no consultation or explanation, and temporarily to Mr Morgan Grievance (also direct discrimination)1.27 The claimant raised a grievance 20 September 2021 and she was absent from work due to sickness from 5 August 2021 and save for a brief return until she resigned on 22 October 2021. Appropriate processes were not followed to facilitate a return to work;1.28 Ms Dimouli tried to communicate with the Claimant through her personal email account after she had been asked not to do so;1.29 Mr Morgan, Ms White, Ms Dimouli were not suspended during an investigation contrary the Claimant says to the bullying policy and procedure.[2]Did any of those things alone or taken together breach the implied term of trust and confidence? The Tribunal will need to decide:2.1 whether the Respondent behaved in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the parties; and2.2 whether it had reasonable and proper cause for doing so. 39 of 44[3]Did the Claimant resign, at least partly, in response to the breach?[4]Did the Claimant affirm the contract before resigning? The Tribunal will need to decide whether the Claimant’s words or actions showed that she chose to keep the contract alive even after the final act contributing to the breach. 5. [The Respondent will set out here if it alleges that there was a potentially fair reason for dismissal. If so, was that reason a sufficient reason for dismissal and was the dismissal procedurally fair.] Harassment related to race (Equality Act 2010 section 26) NB something cannot be a detriment if it is harassment relating to race. The Claimant puts these claims in the alternative.[6]Did the Respondent do the following things:6.1 Flexible working (paras 1.1-1.26.2 Alleged isolation and exclusion (paras 1.4, 1.5)6.3 Informal Warning (paras 1.7-1.11)6.4 Images (paras 1.13-1.16)6.5 Safe space concern (paras 1.20-1.21)6.6 Senior Management Pressure (para 1.19-1.21) If so, was that unwanted conduct?[8]Did it relate to race?8.1 The Claimant will say managers would not have behaved towards a white member of staff in the same circumstances in the same way.8.2 The Claimant will say a white member of staff raising a concern about culture or images would have been treated more positively and given praise for their insight.[9]Did the conduct have the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant?[10]If not, did it have that effect? The Tribunal will take into account the Claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect. Direct race discrimination (Equality Act 2010 section 13) 40 of 44 The Claimant identifies as person of mixed race.[12]Did the Respondent do the following things:12.1 Flexible working (para 1.1);12.2 Personal development (paras 1.2, 1.3);12.3 Alleged isolation and exclusion (paras 1.5-1.6)12.4 Safe space concern (para 1.17, 1.18);12.5 Grievance (para 1.23-1.25);12.6 Constructively dismissing the Claimant;12.7 Delaying the grievance: the Claimant was told the grievance would be decided on November 2021 but it was decided in January 2022.12.8 Alice Moore contacting the Claimant on behalf of senior management after her employment had ended.[13]Did the Respondent’s treatment amount to a detriment?[14]Was that less favourable treatment?14.1 The Tribunal will decide whether the Claimant was treated worse than someone else was treated in the same circumstances (real comparators). For the flexible working issue the Claimant will rely as a comparator on the administrative assistant, Ms Fern, who was allowed to continue to work from home.14.2 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. The Tribunal may consider ‘evidential comparators’ in considering whether to draw this inference. An evidential comparator is someone not in the same circumstances but similar or analogous circumstances. [Claimant to name any ‘evidential comparators’ here and the reason she says their circumstances help her to draw an inference of race discrimination.]14.2.1 For the personal development issue, the Claimant will rely on Mr Knight, who in a comparable role, received several promotions regardless of discriminatory comments. Or Mr Sheerin, a team member praised highly for their feedback on a race discrimination matter.14.2.2 For the being ignored issue, the Claimant witnessed Ms Fern, Ms Grundman, Ms Robinson and Ms Soper leave the team, receiving a card, dinner/drinks and farewell during final meetings. 41 of 4414.2.3 For the safe space issue, Ms Rowe and Ms Phillips have commented on exclusionary race cultures at work with no repercussions but have instead been seen as humorous. If so, was it because of race.[16]If there was a dismissal, did the acts amounting to direct discrimination materially influence the conduct contributing to the fundamental breach of contract? Victimisation (Equality Act 2010 section 27)[17]Did the Claimant do a ‘protected act’ as follows:17.1 On 18 January 2021 by replying to an email about a volunteer complaint about racism;17.2 In April 2021 making comments in the 360 degree appraisal feedback to Ms Dimouli about Ms White;17.3 In an email in about July 2021, after a meeting with Ms Dimouli, where the Claimant alleged race discrimination and harassment;17.4 On 5 August 2021, the disclosure about safe space. This is because the Claimant referred to discriminatory cultures within the team, specifically the new safe spaces strategy.[18]Did the Respondent do the following things18.1 Personal development (paras 1.2, 1.3);18.2 Informal warning (paras 1.6-1.8);18.3 Anonymous appraisal feedback (paras 1.9-1.12)18.4 Images (paras 1.13- 1.16); 18.4 Safe space concern (paras 1.17-1.18);18.5 Senior management pressure (paras1.19-1.21) 18.7 Change of manager (para 1.22);18.6 Constructively dismissing the Claimant.[19]By doing so, did it subject the Claimant to detriment?[20]If so,20.1 was it because the Claimant did a protected act? or20.2 was it because the Respondent believed the Claimant had done, or might 42 of 44 do, a protected act?[21]If there was a dismissal, did the acts amounting to victimisation materially influence the conduct contributing to the fundamental breach of contract? Time limits[22]Were the harassment, discrimination and victimisation complaints for individual acts/failures (not dismissal) made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:22.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates?22.2 If not, was there conduct extending over a period?22.3 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?22.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:22.4.1 Why were the complaints not made to the Tribunal in time?22.4.2 In any event, is it just and equitable in all the circumstances to extend time?
Remedy
[23]What basic award is payable to the Claimant, if any?[24]Should the Tribunal make a recommendation that the Respondent take steps to reduce any adverse effect on the Claimant? What should it recommend?[25]What financial losses has the discrimination caused the Claimant?[26]Has the Claimant taken reasonable steps to replace lost earnings, for example by looking for another job? If not, for what period of loss should the Claimant be compensated?[27]What injury to feelings has the discrimination caused the Claimant and how much compensation should be awarded for that?[28]Is there a chance that the Claimant’s employment would have ended in any event? Should their compensation be reduced as a result?[29]Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?29.1 Did the Respondent or the Claimant unreasonably fail to comply with it? 43 of 44 29.1 If so, is it just and equitable to increase or decrease any award payable to the Claimant?29.2 By what proportion, up to 25%? Should interest be awarded? How much? 44 of 44