Miss J Jallow v East Suffolk & North Essex NHS Foundation Trust: 3207927/2021

EMPLOYMENT TRIBUNALS

Case No 3207927/2021

Between

Miss J JallowClaimant

East Suffolk & North Essex NHS Foundation TrustRespondent

Before

Employment Judge Volkmer

Members

Ms G Forrest

Mr Brown (instructed by Counsel) for respondent

Date 15 July 2024

JUDGMENT

[1]The direct race and religion discrimination complaints at2.4.1 and

2.4.2 of the List of Issues are dismissed on withdrawal.

[2]The complaint of indirect sex discrimination, the direct race and religion discrimination complaints at 2.4.3, 2.4.4 and 2.4.5 of the List of Issues, and the complaint of direct age discrimination were not presented within the applicable time limit. It is not just and equitable to extend the time limit. These complaints are therefore dismissed.

[3]The direct race and religion discrimination complaints at 2.4.6 and 2.4.7 of the List of Issues are not well founded and are dismissed.

[4]The holiday pay claim is not well founded and is dismissed.

REASONS

[1]The Respondent is an NHS Trust which operates a number of hospitals including the Colchester General Hospital where the Claimant worked as a Healthcare Assistant (“HCA”) on the Respiratory Medicine ward from 22 June 2020 until her resignation on 1 September 2021 which took effect on 30 September 2021.

[2]The Tribunal considered a Hearing Bundle of 477 pages, page references in this document are references to the Hearing Bundle. Further documents were provided to the ET during the hearing (without objection from the Claimant):(i) screen shots showing information about the Claimant’s annual leave (1 page); and

(ii) emails between Rey Blanca and E-Rostering dated 25 and 27 October 2021 (2 pages).

[3]The Tribunal heard oral evidence from the Claimant, Emma Davis, Natasha Machell, Rey Blanca, and Holly Warner.

The Background

[4]The Claimant contacted ACAS for the purposes of Early Conciliation on 21 October 2021 and an ACAS Early Conciliation Certificate was issued on 22 October 2021. The claim was issued on 23 December 2021.

[5]By a letter dated 4 October 2022 EJ Housego ordered that there be a Public Preliminary Hearing on 20 January 2023 to determine whether the Claimant’s claims for unfair dismissal and marital discrimination should be struck out. The Claimant had not actually brought a claim of unfair dismissal (although she had referred to being constructively dismissed). The Respondent had complained in its ET3 that the Claimant had failed to provide adequate particulars of her claims. EJ Housego ordered the Claimant to provide further information about the claims for indirect discrimination. By a letter dated 7 October 2022 the Claimant informed the Tribunal that she was not bringing a claim for unfair dismissal but wished to ‘substitute’ a claim for wrongful dismissal. She indicated that she would not be pursuing a claim of discrimination based on marital status but would be bringing an age discrimination claim based on the same facts. By a Judgment dated 24 October 2022 the unfair dismissal and discrimination based on marital status complaints were dismissed upon withdrawal.

[6]The Claimant then sent the Tribunal several e-mails in which she set out details of the claims that she had brought or wanted to bring.

[7]A Preliminary Hearing took place before EJ Crossfill on 3 November 2022 (at which the Claimant was not represented) in which the claims were discussed. EJ Crossfill identified which of the complaints had been included in the Claimant’s ET1 and which had not, and set out a draft list of issues, identifying this.

[8]EJ Crossfill listed a further preliminary hearing in order to deal with any application by the Claimant to amend her claim, finalise the issues, and to consider strike out or a deposit order. The Claimant was ordered to make any amendment application (including the draft amendment) by 6 February 2023.

[9]A further Preliminary Hearing took place on 5 April 2023, at which the Claimant was represented by Mr Mayanja and the Respondent by Mr Brown. The Claimant’s flexible working claim was struck out on the basis that it had no reasonable prospects of success since the Claimant had not made a flexible working request. At that hearing it was indicated that the Claimant wished to amend her claim to include age discrimination, but Mr Mayanja was not able to provide details. EJ Knowles ordered that if the Claimant wished to make an amendment application she must do so in writing by 26 April 2023.

[10]A further Preliminary Hearing took place on 20 October 2023, at which the Claimant was represented by Mr Myanja. It was agreed that the age discrimination complaint should be included. The Claimant sought to reinstate her claim of constructive unfair dismissal, but this was refused on the basis that it had already been dismissed by EJ Russell upon withdrawal. EJ Beyzade records that the parties’ representatives indicated at this hearing that no further amendments were required.

[11]The Tribunal received an email dated 5 April 2024 from Mr Myanja regarding an application to amend the claim, but the email omitted the attachment which contained the application. The Claimant was ordered to submit any application to amend by 9 May 2024. The attachment dated 5 April 2024 was later supplied. This was an application to amend her claim “with inclusion of breach of contract”, which appeared to seek to argue that the Respondent’s alleged misrepresentation as to the Claimant’s length of service was a breach of the implied duty of trust and confidence.

[12]Regional Employment Judge Burgher refused the Claimant’s application to amend by letter dated 10 June 2024.

[13]On 2 May 2024, the Claimant submitted a further application to include automatic unfair dismissal (but without specifying under which statutory provision), saying that it was a re-labelling exercise in relation to paragraphs 1 and 2 of the ET1 referring to constructive dismissal and “deprival of “flexible working options””.

[14]Regional Employment Judge Burgher refused the Claimant’s application to amend of 2 May 2024 by letter dated 7 June 2024.

[15]The Claimant applied on 14 June 2024 for reconsideration of the refusal of both of these amendment applications. The application for reconsideration was refused by Regional Employment Judge Burgher by letter dated 18 June 2024. Amendment application

[16]Having discussed whether there were any preliminary issues to be dealt with at 10am on the first day of the hearing, the Tribunal began its reading time. At 12 noon, the Tribunal reconvened with the parties and the Respondent was due to start cross examination. At 12 noon, the Claimant’s representative sent an amendment application to the Tribunal setting out that the Claimant wished to add the following as allegations of direct race and religion discrimination at paragraph 2.4 of the List of Issues (see below):(i) “failure to apply all other parental policies manager’s duty {Pages 350};

(ii) failure to provide Claimant with Flexible working arrangement forms {Page 350 &351};

(iii) failure to consider the Trust’s work Bank policy;

(iv) falsifications on the leavers form Page {139};

(v) late service of this form {page 149};

(vi) misrepresentation of Claimant’s overall employment service with the NHS in the lead up to strike out and withdraw consent agreed Page {90&91}.”

[17]For reasons given orally, and not repeated here, the Tribunal determined that the balance of prejudice weighed in favour of refusing the majority of the amendment application (primarily because of the late timing of the application which meant that the Respondent was not prepared to cross examine on this and had not had the opportunity to disclose or lead evidence on these matters, therefore putting this hearing at risk). In relation to allegation “(v) late service of the form” (the correct page reference is to page 139), for reasons given orally, and not repeated here, the Tribunal considered the balance of prejudice weighed in favour of permitting the application to amend (primarily because this had been addressed in the Respondent’s witness evidence and was a narrow point which would not put this hearing at risk, as the Claimant would be giving evidence over two days any prejudice in relation to failure to prepare to cross examine could be mitigated by preparation in between the two days). The parties can apply for written reasons within 14 days of this judgment being sent to the parties.

The Issues

[18]The List of Issues was discussed at the Preliminary Hearing before Employment Judge Beyzade on 20 October 2023 and set out in the Case Management Order. The issues at paragraph 2.4 have been amended to reflect the fact that those originally numbered2.4.1 and

2.4.2 in the order of 20 October 2023 were withdrawn at the beginning of this hearing.

[19]The withdrawn allegations were:(1) leave the Claimant to work alone on two night shifts (on 2 and 3 November 2020)? If so, did this lead to the incidents which were the subject of the disciplinary investigation; and

(2) force the Claimant to take annual leave following her return to work on 21 May 2021 to compensate her shorter hours.

[20]The List of Issues has also been updated to include the amendment permitted, so as to add the allegation numbered 2.4.7 in the list below.

[21]The issues which fell to be determined at this hearing are therefore as follows. 1. Indirect Sex Discrimination – s.19 Equality Act 2010

1.1 Was the Claimant’s complaint brought within the statutory time limit set out in sections 123 (1) Equality Act 2010?

1.2 Was there a continuing act?

1.3 If not, is it just and equitable for the time limit to be extended to bring the claim in time?

1.4 If not, is it just and equitable for the time limit to be extended to bring the claim in time?

1.5 Did the Respondent have the following provision, criterion or practice (“PCP”): 1.5.1 requiring Healthcare Assistants to work both day shifts and night shifts

1.6 Did the Respondent apply the PCP to the Claimant and, if so, on what dates?

1.7 Did the Respondent apply the PCP to men or would it have done so?

1.8 Did the PCP put women at a particular disadvantage when compared with men in that the requirement interfered with caring responsibilities?

1.9 Did the PCP put the Claimant at that disadvantage and, if so, on what dates? NB: the Respondent contends that, when the Claimant returned to her Healthcare Assistant role on or around 28 June 2021, she agreed to undertake day shifts for a period of time in order to receive development support and training.

1.10 Was the PCP a proportionate means of achieving a legitimate aim? The Respondent relies on the following aims:1.10.1 the efficient running of a health service;

1.10.2 safe and effectively delivery of healthcare services;

1.10.3 ensuring equal treatment between staff; and

1.10.4 ensuring that training and/or support can be provided to staff members where required. 2. Direct race discrimination and direct religion discrimination

2.1 Were the Claimant’s complaints brought within the statutory time limit set out in sections 123 (1) Equality Act 2010?

2.2 Was there a continuing act?

2.3 If not, is it just and equitable for the time limit to be extended to bring the claim in time?

2.4 Did the Respondent do the following things:2.4.1 leave the claimant to work alone on two night shifts (on 2 and 3 November 2020)? If so, did this lead to the incidents which were the subject of the disciplinary investigation [withdrawn];

2.4.2 force the claimant to take annual leave following her return to work on 21 May 2021 to compensate her shorter hours [withdrawn];

2.4.3 give the Claimant’s colleagues preferential treatment to work night shifts following the Claimant’s return to the ward in summer 2021;

2.4.4 end the practice (flexible working) of permitting the Claimant to work only night shifts after May 2021;

2.4.5 constructively dismiss the Claimant on 1 September 2021 by way any of the matters identified above at (2.4.1) to (2.4.4);

2.4.6 take a decision to recover the overpayment from the Claimant communicated to her by letter on 25 November 2021; and/or

2.4.7 submit the Claimant’s “Leavers Form” (at page 139) late?

2.5 Did the Respondent treat the Claimant less favourably than it treated or would have treated a hypothetical comparator in not materially different circumstances, and if so, was that because of race?

2.6 Did the Respondent treat the Claimant less favourably than it treated or would have treated a hypothetical comparator in not materially different circumstances, and if so, was that because of religion? 3. Direct age discrimination (Equality Act 2010 section 13)

3.1 The Respondent’s position is that any complaint about any act or omission that took place before 24 September 2021 is presented to the Tribunal out of time. The Claimant’s position is that any complaint about any act or omission that took place before 30 December 2021 is presented to the Tribunal out of time. Was the Claimant’s complaint brought within the statutory time limit set out in sections 123 (1) Equality Act 2010?

3.2 Was there a continuing act?

3.3 If not, is it just and equitable for the time limit to be extended to bring the claim in time?

3.4 The Claimant’s age group is 34-36 and they compare their treatment with people in the age group between 45 and 50.

3.5 Did the Respondent do the following things: 3.5.1 Give the Claimant’s colleague (Denise Scholar) preferential treatment to work night shifts following the Claimant’s return to the ward in summer 2021?

3.6 Was that less favourable treatment? The Tribunal will decide whether the Claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the Claimant’s. If there was nobody in the same circumstances as the Claimant, the Tribunal will decide whether they were treated worse than someone else would have been treated. The Claimant says they were treated worse than Denise Scholar.

3.7 If so, was it because of age?

3.8 Did the Respondent’s treatment amount to a detriment?

3.9 Was the treatment a proportionate means of achieving a legitimate aim? The Respondent says that its aims were:3.9.1 the efficient running of a health service;

3.9.2 safe and effectively delivery of healthcare services;

3.9.3 ensuring a range of experience on night shifts at all times;

3.9.4 ensuring that training and/or support can be provided to staff members where required; and

3.9.5 ensuring equal treatment between staff

3.10 The Tribunal will decide in particular:3.10.1 was the treatment an appropriate and reasonably necessary way to achieve those aims;

3.10.2 could something less discriminatory have been done instead;

3.10.3 how should the needs of the Claimant and the Respondent be balanced? 4. Remedy for discrimination

4.1 The Claimant is not seeking any recommendations. She claims compensation only by way of remedy.

4.2 What financial losses has the discrimination caused the Claimant?

4.3 Has the Claimant taken reasonable steps to replace lost earnings, for example by looking for another job?

4.4 If not, for what period of loss should the Claimant be compensated?

4.5 What injury to feelings has the discrimination caused the Claimant and how much compensation should be awarded for that?

4.6 Has the discrimination caused the Claimant personal injury and how much compensation should be awarded for that?

4.7 Is there a chance that the Claimant’s employment would have ended in any event? Should their compensation be reduced as a result?

4.8 Neither party contends that there were any breaches of the ACAS Code of Practice on Disciplinary and Grievance Procedures.

4.9 Should interest be awarded? How much? 5. Holiday Pay/Unlawful Deduction From Wages

5.1 Was the claim for unlawful deductions from wages presented in time, taking into account any established series of deductions (ss.23(2)-(3) Employment Rights Act 1996?

5.2 If not, was it reasonably practicable for the Claimant to present her claim within the statutory time limit?

5.3 If not, by what date would it have been reasonably practicable for the Claimant to present her claim?

5.4 Should time be extended?

5.5 Were the sums for holiday pay claimed “properly payable” to the Claimant under the contract of employment?

5.6 Did the Respondent deduct holiday pay from the Claimant’s wages and, if so, on what date or dates?

5.7 If so, does this amount to an unlawful deduction from wages by the Respondent under section 13 of the Employment Rights Act 1996?

Facts

[22]The Claimant is a single mother with three children. She identifies as a black Muslim. Before joining the Respondent as an HCA, the Claimant lived in Yorkshire, where many of her family members live. She then relocated to Colchester in June 2020. At the time of relocating to Colchester, the Claimant had family assistance with childcare there. The Claimant had previously worked as an HCA in Yorkshire.

[23]The Claimant’s account was that she was told at interview stage that she would be able to work night shifts only. However, the Tribunal preferred the Respondent’s account. The Tribunal finds that at the Claimant’s interview for the role of HCA a standard paragraph was read saying “you will be expected to work a range of long days and nights. A small number of wards also offer early and late shifts. All staff must be able to work range of shifts to ensure clinical areas are staffed safely and fairness to all staff. Please confirm you able to work these.” (page 135). There was no agreement at this stage regarding a shift pattern which allowed the Claimant to work exclusively on night shifts. This finding is based on the email at page 135 which sets out the standard practice for the Respondent, as well as on the basis that, in fact, the Claimant worked day shifts following her appointment. If she had an agreement at interview stage to only work night shifts she would have raised this at that time.

[24]The Claimant was offered the HCA role in May 2020 and began working at the Respondent on 22 June 2020. The Claimant was required to undertake a six month probationary period. The Claimant’s contract set out that: “34. The Trust’s annual leave year runs from 1st April – 31st March. If your employment commenced or terminates part way through the annual leave year, your entitlement to annual leave during that year will be assessed on a pro rata basis.” (page 93).

[25]The Claimant began working on the Layer Marney Ward, which is a respiratory ward at the Respondent’s Colchester General Hospital. The ward is staffed 24 hours a day, seven days a week by nurses and HCAs. The HCAs are rostered to work a combination of long day shifts and long night shifts. The shifts are 12 hours long and run from 7:30 AM to 7:30 PM (day shift) and from 7:30 PM to 7:30 AM (night shift). A half hour handover was expected. The rosters were allocated 12 weeks in advance. If individual members of staff would swap shifts, the roster would update on the system to show the shifts actually worked after the swap.

[26]The long shifts ensured that the ward was covered 24 hours per day, seven days per week. The Tribunal finds, based on Ms Davis and Mr Blanca’s evidence, that the Respondent required HCAs to work a mixture of shifts for a number of reasons:(i) certain other members of clinical staff only worked during the day, such as physiotherapists, specialist nurses and consultants, whereas at night there was a single doctor covering numerous wards;

(ii) management interaction, training and team days took place on day shifts (this could also be seen in the rotas in the Hearing Bundle);

(iii) patients would tend to sleep during night shifts so there were significantly fewer opportunities for interactions and HCAs would not undertake the usual range of support activities during the night as they would during the day, such as personal care, patient observation, nutrition, and encouraging mobilisation;

(iv) fewer staff worked at night, and patients could deteriorate quickly, so it was important that there was a good mixture of skills and that the HCAs working at night were proficient to deal with this; and

(v) to ensure fairness between staff.

[27]Ms Davis, a nurse, was the Ward Sister on the Layer Marney Ward when the Claimant started working there. She was the Ward Manager. When the Claimant first started work and was allocated to the ward, she explained to Ms Davis that she was a single mother with three young children and that she had a preference for night shifts. Ms Davis said that she did not do the roster herself but that she would pass on the Claimant’s preference to Elsa Nunes (Deputy Ward Sister) who was responsible for the roster, who would try to accommodate preferences. However she made clear to the Claimant that this was not guaranteed. This finding is based on the evidence of Ms Davis. The Claimant’s account is largely consistent with this, the Tribunal consider that if the Claimant had been guaranteed to work only nights she would have raised concerns before her suspension when rostered to work day shifts.

[28]The Claimant worked long day shifts on 29 June 2020, 30 June 2020, 2 July 2020, 10 July 2020, 19 July 2020, 22 August 2020 and 26 September 2020 (pages 339 to 341). Whilst the Claimant initially denied this when taken to the rosters in cross examination, she later stated that she had worked these shifts. At this time, immediately after her relocation, her children were not at school, and her sister-in-law was able to provide some childcare. The Tribunal also note that the latter three dates were on weekends.

[29]In early November 2020 two allegations were made against the Claimant, that she had roughly handled a patient which may have resulted in bruising and that she had told another patient to “shut up”. On 6 November 2020 the Claimant was suspended on full pay pending a disciplinary investigation and the matter was also referred to the police by a patient’s family. At the point the Claimant was suspended, she had not yet completed her probationary period with the Respondent.

[30]The investigation was concluded in April 2021, with a decision that no formal disciplinary action should be taken. The Claimant’s suspension was lifted, but the Claimant was initially returned to a non-patient facing role due to the ongoing police investigation. This was a role as a receptionist in the CardioRespiratory Department. In addition, because it was found that the Claimant had told a patient to “shut up” (albeit a difficult patient who themselves had a record of being verbally aggressive), it was determined that there should be a “supportive measure” for the Claimant in this regard. These matters were communicated to the Claimant in a meeting on 30 April 2021. In the letter confirming the arrangements for the Claimant to return to work, it stated that: “also was identified that you did not take any annual leave from last year which is 181.92 hours and this will need to be carried over to this year’s entitlement of 262.5 hours. It was agreed that you will take annual leave from 3 May to 19 May inclusive returning to work on 20 May 2021 and Emma Davis is in the process to [sic] populate the days booked in the system.” (page 127)

[31]As had been agreed, the Claimant took annual leave from 3 May to 19 May 2021 inclusive. On 20 May 2021 the Claimant returned to her temporary redeployment. During this time the Claimant was working 9:30 to 14:30, whilst being paid full pay including night enhancements.

[32]Since the police had not made a charging decision, the Respondent decided to return the Claimant to clinical duties. The Claimant returned to her clinical duties in her HCA role on 28 June 2021. In the letter informing the Claimant of this, it stated: “Ward sister Emma Davis will be discussing a stage [sic] return to work, which will include refresher training and the completion of various training modules such as Safeguarding. This will mean that you will need to return to work on day shifts initially. You have been out of the role for a significant period of time and you have not yet completed your probation… As you have not been in the workplace due to your suspension, the extension period of three months will commence when you return to work. This will allow you time to complete your refresher training and HCA training.” (page 136)

[33]The Claimant requested to work the same hours that she had worked in a reception role in the Cardio-Respiratory Department and the Respondent was able to temporarily adjust her working hours to 9:30 to 14:30 between 28 June and 9 July 2021 whilst she undertook the refresher training because her attendance at work was not included in the HCA staff on shift doing clinical duties (i.e. she was supernumerary) (page 288). The Claimant was aware that this was a temporary measure. The Claimant remained on full pay including enhancements.

[34]On her return to the Layer Marney Ward, the Claimant discussed her preference for working night shifts with Ms Davis. Ms Davis informed the Claimant that there was no formal flexible working arrangement in place. At the time of the discussion, Ms Davis did not have a printed version of the Respondent’s flexible working request form but stated that she would print it out for the Claimant. The form was also available to the Claimant at any time on the Respondent’s internet, which she could access during her shifts on the Respondent’s computer systems. She did not access it in this manner or follow up with Ms Davis or Mr Blanca (or indeed anyone, including HR) for a printed copy of the form.

[35]Ms Davis did not follow up with the Claimant to provide her with the relevant form. In July 2021 Ms Davies left the ward to take up a different role and Rey Blanca was appointed as the Ward Manager for Layer Marney Ward from 19 July 2021.

[36]The Claimant took further annual leave on 12 and 13 July 2021, and following this she took four weeks of annual leave from 16 July 2021 to visit family in Gambia with her children. (pages 129, 387, screenshot of annual leave). Around this time the Claimant stated that her family members who lived in Colchester “turned [their] back on her”, saying they could no longer help. On the Claimant’s return from her holiday to Gambia, this left the Claimant without any childcare in the Colchester area.

[37]The Claimant returned to work on a night shift on 20 August 2021 (page 298). During this shift she had a conversation with Mr Blanca during which she told him that she was struggling with childcare issues, had no support at home and could not work a mixture of night and day shifts. She said that her family lived several hours away in Yorkshire and wanted her to move there so that she could be better supported. The Claimant asked Mr Blanca what he would do if he was in her situation and he responded that his family would come first. Mr Blanca explained to the Claimant that she could not work exclusively night shifts, although her preference for night shifts could be taken into account there would be odd day shifts that she would need to work.

[38]During this conversation, Mr Blanca discussed options with her regarding her shifts. They discussed reduced shifts of 9 to 14.30 but Mr Blanca said that this was not possible as the remainder of the shift could not be filled with bank or agency staff. He suggested that there were certain roles which might be more suitable in terms of shift patterns such as HCA roles in relation to outpatients which tended to require staff to work shorter day shifts. He also discussed the option to work bank shifts which gave the Claimant greater flexibility. These findings about the events on 20 August 2021 are based on Mr Blanca’s evidence, which the Tribunal found to be consistent and credible. During this discussion, flexible working requests were also discussed as one of the options. This finding is based on the Claimant’s and Mr Blanca’s evidence.

[39]The reference to “bank” shifts, was a reference to a third party organisation called NHS Professionals Ltd. It was open to existing members of staff to enable them to apply to do additional shifts on a flexible basis, or it was also possible to be solely engaged by NHS Professionals Ltd. The arrangement through NHS Professionals Ltd is similar to agency working and is a flexible arrangement, with individuals able to pick which shifts and how many shifts they wish to work, dependent on shift vacancies. The Respondent would use “bank” staff to cover shifts where they were short of employees to cover the shifts. Any person with the right qualifications and skills could apply to be a bank worker, it was not a requirement that the individual was an employee of the Respondent. The Respondent could not engage or transfer the Claimant to be a bank worker, she was required to apply separately to NHS Professionals Ltd as it was a third party company.

[40]Due to the Claimant’s childcare issues on the following day, Mr Blanca authorised short notice annual leave for that day, 21 August 2021. The Claimant phoned in sick on 22 August 2021.

[41]In a further discussion between the Claimant and Mr Blanca on 23 August 2021 the Claimant informed Mr Blanca that she was looking for a job up north so that she could be closer to her family. She did not say that she wished to pursue any of the other options which had been discussed, such as a flexible working request or “bank” application. Mr Blanca explained to the Claimant that if she did resign she would need to work her four weeks’ notice. However he said that she had enough annual leave to take that during her notice if she wanted to leave and could not work the notice period due to her childcare issues. Later on 23 August 2021 the Claimant sent Mr Blanca a message on Facebook saying “Hi Rey I will take the four weeks annual leave and I will hand in my notice. Thank [sic]” (page 168).

[42]Mr Blanca initially approved five days’ annual leave until 29 August 2021. There were discussions between the Claimant and Mr Blanca, who spoke to another colleague about being a referee for the Claimant. On 28 August 2021, the Claimant wrote Mr Blanca another message saying “hi Rey, I will take my four weeks annual leave starting from Monday. I’m still struggling for childminder I will hand in my notice are you in on Monday” (page 168).

[43]There were discussions via Facebook message about how the Claimant could resign. She asked if she had to bring a letter to the office, and Mr Blanca said that she could scan it and email it to him. The Claimant did so on 1 September 2021, by way of a handwritten note which simply stated “I’m here by giving my notice from 30 August 2021. Name: Jainaba Jallow” followed by a signature (page 138). This document was also torn. Mr Blanca felt that it was too informal and sent the Claimant a message saying “can you please type it zeinab put a heading and kind regards or something I cant [sic] send this to HR and matron, this is too informal, this even has a tear on the lower left hand side” (page 168). He went on to say the Claimant could Google a sample of how to make a notice and edit it. Mr Blanca did not suggest to the Claimant what the contents of her letter should be, merely that it should be more formal. The Claimant looked on Google and created a handwritten resignation letter in a longer format, which referred to learning a great deal and collaborating with colleagues and making other positive comments about her time with the Respondent (page 137).

[44]The Claimant moved back to Yorkshire a short time after this.

[45]Mr Blanca was not aware of the need for him to complete a “leaver form” in relation to the Claimant. On 25 October 2021 Mr Blanca became aware that the Claimant was still appearing on the roster, and wrote an email to the rostering department asking for her to be removed (see additional disclosure document). He received an email in response saying that there was no leaver form on the system and as such the Claimant would still appear on the roster and presumably be paid. At this point Mr Blanca tried to complete the relevant form but had some IT problems submitting it. The form was submitted on 2 November 2021 (page 140). There was a section on the form which required Mr Blanca to answer “Does the employee wish to join the Bank?” (page 139). Since Mr Blanca had not heard back from the Claimant as to whether she wished to pursue any of the options he discussed with her, he selected “no” to this question. He could not submit the form without selecting an answer of either yes or no. This did not have the effect of preventing the Claimant from applying to be on Bank, she could have done so in any case.

[46]Mr Blanca also messaged to the Claimant saying “you might be paid more this month rather than the enhancement that you had last september [sic] as your last day was 30th September will be recollected” (page 147).

[47]The Claimant was indeed paid in error for October 2021. By letter dated 25 November 2021, the Respondent wrote to the Claimant requesting repayment of the overpaid salary in the sum of £1,359.55 (page 149). The Respondent did not have a written policy in relation to overpayments to employees at that time. However its practice was to recover overpayments in all but very exceptional circumstances (death or bankruptcy) because the Respondent took the view that it was public money and it had a duty to manage public finances responsibly.

[48]Where a payment plan was agreed with the Respondent, employees could pay sums over a six-month period. However due to lack of engagement from the Claimant after attempts to contact her, as is their usual practice, the Respondent passed the debt to a debt collection agency. The Claimant agreed a repayment plan with the debt collection agency following a County Court Judgement and bailiff enforcement.

The Law

[49]This is a claim alleging discrimination on the grounds of a protected characteristic under the provisions of the Equality Act 2010 (the “EqA”). The Claimant complains that the Respondent has contravened a provision of part 5 (work) of the EqA. The Claimant alleges direct race, age and religion discrimination and indirect sex discrimination.

[50]The protected characteristics relied upon are age, race, religion and sex, as set out in sections 4 and 5 (Age); 9 (Race); 10 (Religion or belief); 11 (Sex) of the EqA. Direct Discrimination

[51]As for the claim for direct discrimination, under section 13(1) of the EqA a person(a) (A) discriminates against another

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

[52]As set out in Ayodele v Citylink Ltd & Anor

[2017] EWCA Civ 1913

, the following three issues may arise in respect of any specific complaint of discrimination: “(1) Did the alleged act occur at all? (2) If it did occur, did it amount to less favourable treatment of the claimant when compared with others? (3) If there was less favourable treatment, what was the reason for it? In particular, was that reason discriminatory? Accordingly, there may be cases in which the tribunal never has to address question (3), because it is not satisfied that it has been proved on the evidence that the alleged act took place at all; or it may not be satisfied that there was less favourable treatment.”

[53]Direct discrimination is based on comparative treatment. It must be established that the Claimant was treated “less favourably” than someone else, who will be either an actual person or a hypothetical person. Either way, a comparator must be in materially the same circumstances (see section 23(1) EqA which provides: “on a comparison of cases for the purposes of section 13, 14 or 19 there must be no material difference between the circumstances relating to each case”).

[54]The provisions relating to the burden of proof are to be found in section 136 of the EqA, which provides that if there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. However this does not apply if A shows that A did not contravene the provision. A reference to the court includes a reference to an employment tribunal.

[55]Efobi v Royal Mail Group Ltd

2021 ICR 1263

, SC, the Claimant is required to prove, on the balance of probabilities, facts from which, in the absence of any other explanation, the employment tribunal could infer an unlawful act of discrimination.

[56]Igen v Wong

[2005] EWCA Civ 142

remains the leading authority in relation to the application of the burden of proof set out in section 136 EqA in relation to discrimination cases. It was not sufficient for the Claimant simply to prove facts from which the tribunal could conclude that the Respondent “could have” committed an unlawful act of discrimination. It is clear that the Claimant must prove facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the Respondent did commit an unlawful act of discrimination it can. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination.

[57]It is not sufficient to shift the burden of proof for a Claimant to show only a difference in status and a difference in treatment. These are bare facts which only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the Respondent had committed an unlawful act of discrimination. (Madarassy v Nomura International Plc

[2007] EWCA Civ 33

[58]HHJ Tayler considered the interrelationship between the use of comparators and the shifting burden of proof in Virgin Active v Hughes

[2023] EAT 130

: “61. In many direct discrimination claims the claimant does not rely on a comparison between his treatment and that of another person. The claimant relies on other types of evidence from which it is contended that an inference of discrimination should be drawn, the comparison being with how the claimant would have been treated had he had some other protected characteristic.

[62]In other cases, the claimant compares his treatment with that of one or more other people. There are two ways in which such a comparison may be relevant. If there are no material differences between the circumstances of the claimant and the person with whom the comparison is made (the person is usually referred to as an actual comparator), this provides significant evidence that there could have been discrimination. However, because there must be no material difference in circumstances between a claimant and a comparator for the purpose of section 23 EQA it is rare that a claimant can point to an actual comparator. The second situation in which a comparison with the treatment of another person may provide evidence of discrimination is where the circumstances are similar, but not sufficiently alike for the person to be an actual comparator. The treatment of such a person may provide evidence that supports the drawing of an inference of discrimination, sometimes by helping to consider how a hypothetical person whose circumstances did not materially differ to those of the claimant would have been treated (generally referred to as a hypothetical comparator). Evidence of the treatment of a person whose circumstances materially differ to those of the claimant is inherently less persuasive than that of a person whose circumstances do not materially differ to those of the claimant. …

[67]If anything more is required to shift the burden of proof when there is an actual comparator it will be less than would be the case if a claimant compares his treatment with a person whose circumstances are similar, but materially different, so that there is not an actual comparator.” 59. HHJ Tayler also summarised the law in Leicester City Council v Mrs B Parmar:

[2024] EAT 85

and commented that “comparing the treatment of a claimant with that of another person is a subtle business. The analysis is highly context specific.”. 60. Where the claimant has proven facts from which conclusions may be drawn that the respondent has treated the claimant less favourably on the ground of the protected characteristic then the burden of proof has moved to the respondent. It is then for the respondent to prove that it did not commit, or as the case may be, is not to be treated as having committed, that act. To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of the protected characteristic. That requires the Tribunal to assess not merely whether the Respondent has proven an explanation, but that it is adequate to discharge the burden of proof on the balance of probabilities that the protected characteristic was not a ground for the treatment in question. 61. Even if the Claimant is treated less favourably than an appropriate comparator, it must have been “because” of the protected characteristic. This requires the Tribunal to determine the reason why the Claimant was treated less favourably. This is not to say that the comparator issue is a threshold to be crossed before “the reason why” is addressed. This sequential analysis can give rise to problems because sometimes the less favourable treatment issue cannot be resolved without, at the same time, deciding the reason why issue. The two issues are intertwined: Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] UKHL 11

. 62. Discrimination is only made out if the protected characteristic had a “significant influence on the outcome”: Nagarajan v London Regional Transport [1999] 4 All E.R. 65. Nagarajan also set out that subconscious intention was sufficient in relation to direct discrimination, it did not need to be a conscious motivation. In a case related to the protected characteristic of disability, it was found that the disability itself must be the reason for the treatment, not something related to a disability (Cordell v Foreign and Commonwealth Office [2012] I.C.R. 280). 63. In every case the Tribunal has to determine the reason why the Claimant was treated as they were. The relevant question is to look at the mental processes of the person said to be discriminating (Advance Security UK Ltd v Musa [2008]

UKEAT/0611/07

). 64. The case of B v A

UKEAT/0450/06/RN

, made clear that in finding the “reason why” it was not a “but for” test. In that case, the breakdown of the relationship was the reason for the unfavourable treatment, this was inconsistent with a finding that the reason for the treatment was the Claimant’s sex. Indirect Discrimination 65. As for the claim for indirect discrimination, under section 19(1) of the EqA a person(a) (A) discriminates against another

(b) (B) if A applies to B a provision criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s. A provision criterion or practice is discriminatory in these circumstances if A applies, or would apply, it to persons with whom B does not share the characteristic; it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it; it puts, or would put, B at that disadvantage; and A cannot show it to be a proportionate means of achieving a legitimate aim. 66. The Equality and Human Rights Commission Code sets out that, in order to be a “legimate aim”, the aim should be “legal, should not be discriminatory in itself, and must represent a real, objective consideration.” (paragraph 4.28). 67. Seldon v Clarkson Wright and Jakes (A Partnership)

2012 ICR 716

, SC noted that aims had to be relevant to the particular employment in question, see paragraph 61 “Once an aim has been identified, it has still to be asked whether it is legitimate in the particular circumstances of the employment concerned. For example, improving the recruitment of young people, in order to achieve a balanced and diverse workforce, is in principle a legitimate aim. But if there is in fact no problem in recruiting the young and the problem is in retaining the older and more experienced workers then it may not be a legitimate aim for the business concerned. Avoiding the need for performance management may be a legitimate aim, but if in fact the business already has sophisticated performance management measures in place, it may not be legitimate to avoid them for only one section of the workforce.”

[68]The aim must be(i) appropriate to the employer’s objectives; and

(ii) reasonably necessary to achieve the relevant objectives (Chief Constable of West Yorkshire Police and anor v Homer

2012 ICR 704

, SC). “Reasonably necessary” is a stricter test than the “range of reasonable responses” test, the Tribunal must make its own judgement within the context of the relevant considerations involved.

[69]In considering justification, what is required is "an objective balance between the discriminatory effect of the condition and the reasonable needs of the party who applies the condition” (Allonby v Accrington & Rossendale College

[2001] EWCA Civ 529

[70]In NSL Ltd v Zaluski

2024 EAT 86

, HHJ Auerbach summarises the authorities as follows: “76. However, the following particular points emerging repeatedly from the authorities (I cite only some examples) also need to be kept in mind. Firstly, the PCP must be "appropriate" to the aim or aims found to have been legitimately relied upon, which means that it must be rationally connected to that aim or aims, in the sense of being logically capable of furthering them (see, for example, Homer at [20] and [22]).

[77]Secondly, the respondent does not have to show that the application of the PCP or PCPs was necessary to the achievement of the aim, in the sense of there being no alternative way to do so. Rather, the question is whether it is reasonably necessary: Hardys & Hansons plc v Lax at [28]. However, the balancing exercise may therefore include consideration of whether there were reasonable alternatives to the imposition of a discriminatory PCP: Homer at [24]. Further, in the proportionality or balancing exercise, the impact of the PCP on the affected group must be weighed against the importance of the employer's need. The more serious the disparate impact, the more cogent the justification must be: Hardys & Hansons plc v Lax at [19]; Homer at [20] and [24].” 71. An employer, in showing objective justification, does not have to demonstrate that there was no route other than the discriminatory practice by which the legitimate aim could have been achieved. However, the availability of a less discriminatory but equally effective measure will undermine the argument that a particular measure was proportionate (Hardy and Hansons plc v Lax

2005 ICR 1565

, CA). Time Limits in relation to discrimination complaints 72. In relation to time limits, section 120 of the EqA confers jurisdiction on claims to employment tribunals, and section 123(1) of the EqA provides that the proceedings on a complaint within section 120 may not be brought after the end of –(a) the period of three months starting with the date of the act to which the complaint relates, or

(b) such other period as the employment tribunal thinks just and equitable. 73. The primary limitation period has been amended by the ERA, section 207A. The effect of section 207A is that there is an extension to the primary limitation period so that there is at least a month between the date of the issue of the EC certificate and the deadline for a claim. Holiday pay 74. The Claimant also claims in respect of deductions from wages which she alleges were not authorised and were therefore unlawful deductions from her wages contrary to section 13 of the Employment Rights Act 1996 which sets out the following. (1) An employer shall not make a deduction from wages of a worker employed by him unless— (a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker's contract, or (b) the worker has previously signified in writing his agreement or consent to the making of the deduction. 75. Section 27(1) of the Employment Rights Act 1996 defines “wages” as “any sums payable to the worker in connection with his employment”, including “any fee, bonus, commission, holiday pay or other emolument referable to the employment”. By virtue of S.27(5), payments or benefits in kind are not to be treated as wages. 76. Section 23(2) of ERA sets out that “Subject to subsection (4), an [employment tribunal] shall not consider a complaint under this section unless it is presented before the end of the period of three months beginning with (a)in the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction was made”. 77. Section 23(4) of ERA sets out that “Where the [employment tribunal] is satisfied that it was not reasonably practicable for a complaint under this section to be presented before the end of the relevant period of three months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable.”

[78]As with the discrimination claims, the primary limitation period has been amended by the ERA, section 207A. The effect of section 207A is that there is an extension to the primary limitation period so that there is at least a month between the date of the issue of the EC certificate and the deadline for a claim. Discussion and Conclusions Indirect Sex Discrimination

Discussion and Conclusions

[79]The Respondent accepted that it had a PCP requiring HCAs to work both day shifts and night shifts. This PCP was applied to the Claimant from 22 June 2020 to 5 November 2020 and from 28 June 2021 to 30 September 2021. The Respondent applied this PCP to men.

[80]The Respondent accepted that there is a female childcare disparity, and that the PCP therefore put women at a particular disadvantage when compared with men. The Respondent did not seek to argue that the Claimant was not put to individual disadvantage.

[81]The Respondent’s position was instead that the PCP was a proportionate means of achieving its legitimate aims, namely:(i) the efficient running of a health service;

(ii) safe and effective delivery of healthcare services;

(iii) ensuring equal treatment between staff; and

(iv) ensuring that training and/or support can be provided to staff members where required.

[82]The Tribunal considered that the aims put forward by the Respondent were not discriminatory, real, objective considerations (based on the evidence of Mr Blanca and Ms Davis, and to some extent accepted by the Claimant in cross examination). They are legitimate aims. The ward required 24 hour cover, seven days per week, with appropriate numbers of appropriately skilled staff to ensure the safe and effective delivery of healthcare services to patients on the ward. Handovers for day shifts took place at 7am, management support took place during day shifts, training was provided during the day (including late afternoon, for example manual handling went on until 4.30pm). All staff were required to attend Team Days (which went on until 5.30), which involved interaction with healthcare professionals who did not work night shifts. Undertaking day shifts enabled HCAs to ensure their skill set was maintained, since various duties were not undertaken at night when patients were sleeping.

[83]An employer’s defence of justification in claims of indirect discrimination requires an objective balance to be struck between the discriminatory effect of the PCP and the reasonable needs of the employer that applies it. In performing this balancing exercise, the Tribunal must take into account the needs of the Respondent, but also the discriminatory effect on women. The Tribunal does not have before it any evidence of the number or proportions of women adversely affected, since group disadvantage is conceded. The particular hardship suffered by the Claimant is taken into account in that, from August 2021, she was not able to access childcare in order to undertake day shifts. In circumstances where group disadvantage is conceded and no evidence is adduced on the point, it is unclear from the evidence before the Tribunal whether this is a difficulty which is typical for women as a group. The Tribunal proceeds on the assumption that it is. Nevertheless, for the reasons mentioned above, the Tribunal considers that the PCP is an appropriate means of achieving the aims identified.

[84]Further, for the same reasons, the Tribunal considered that the PCP is reasonably necessary to achieve the aims, in particular the safe and effective delivery of healthcare services (which are required 24 hours a day, seven days a week) and ensuring that training and/or support can be provided to staff members where required. In considering whether the PCP is reasonably necessary, the Tribunal takes into account that the Respondent accommodated personal preferences (such as the Claimant’s preference for night shifts) to the extent possible within its service requirements but still required HCAs to work occasional days where it was required for service needs and to ensure training/skills were kept up to date. Further, the Respondent considered formal flexible working requests when they were made (although none was made by the Claimant).

[85]No less discriminatory but equally effective measure has been put forward by the Claimant to achieve the aims of the Respondent. Instead, her submission seems to be that an exception should have been made for her.

[86]Taking all of this into account, the Tribunal finds that the PCP is objectively justified and the complaint of indirect sex discrimination is not well founded. Direct race discrimination and direct religion discrimination Allegation 2.4.3 – giving the Claimant’s colleagues preferential treatment to work night shifts following the Claimant’s return to the ward in summer 2021

[87]The Claimant relies on a hypothetical comparator in relation to this allegation. The Tribunal had before it the redacted rosters for the Layer Marney Ward for the relevant period 28 June 2021 to 28 August 2021 (pages 284 to 317). In cross examination, the Claimant accepted that the rosters show HCAs working a range of different night and day shifts. The Claimant was not able to identify to the Tribunal any evidence within these rosters showing preferential treatment of any other colleague.

[88]The only reference to an individual was to Diane Schoolar (it is unclear why she is named as an actual comparator in relation to substantively the same allegation made as an age discrimination complaint). The Tribunal considered in any case that Ms Schoolar was not an appropriate actual comparator because her circumstances were materially different. This was because she had had a significant amount of sickness absence and there was Occupational Health advice recommending that she worked night shifts and/or underwent phased returns and reduced hours doing non-clinical shifts to transition back into work. Nevertheless it was clear from the rosters the Tribunal was taken to that Ms Schoolar was also allocated a mixture of night shifts and day shifts. This was accepted in cross examination by the Claimant.

[89]In the absence of an actual comparator, the Tribunal must consider how a hypothetical comparator would be a white HCA and/or an HCA who is not a Muslim. This person would have childcare responsibilities causing them difficulties with working long day shifts.

[90]The process of determining how a hypothetical comparator would have circumstances. In this case all of the other HCA rosters the Tribunal was taken to showed all other HCAs undertaking a mixture of night shifts and day shifts. There were no HCAs who could be seen on the rota doing exclusively night shifts. Whilst Ms Schoolar was not an actual comparator, she was an evidential comparator, and despite the fact that she had an Occupational Health recommendation that she should be working night shifts, she was also shown on the rota as working both long day shifts and night shifts. As such the Tribunal inferred that a hypothetical comparator would have been allocated both night and day shifts.

[91]As such the Claimant has failed to establish less favourable treatment. Her Allegation 2.4.4 – ending the practice (flexible working) of permitting the Claimant to work only night shifts after May 2021

[92]The Tribunal’s factual findings are that the Claimant was working a mixture of long day shifts and night shifts before her suspension in November 2020. Her preference for night shifts was taken into account insofar as possible and so the majority of her shifts were night shifts. Nevertheless, factually she was not working exclusively night shifts before her suspension.

[93]Since there was no prior practice of permitting the Claimant to work only on night shifts, this allegation is not factually upheld. Allegation 2.4.5 - constructively dismiss the Claimant on 1 September 2021 by way any of the matters identified above at (2.4.1) to (2.4.4)

[94]The Claimant has withdrawn allegations 2.4.1 and 2.4.2. The Tribunal has found allegations 2.4.3 and 2.4.4 not to be factually made out.

[95]Even outside of those allegations, whilst it is true that Ms Davis or Mr Blanca could have printed the flexible working form and assisted the Claimant with completing it, not doing so does not go to the heart of the employment relationship. The Claimant did not pursue this option actively, did not follow up with Ms Davies regarding the form or ask for specific help with the flexible working application process.

[96]The Tribunal considers that the key event in August 2021 was Claimant’s family in Colchester withdrawing their childcare assistance. As highlighted by the Claimant in her conversations with Mr Blanca, this gave rise to the Claimant wishing to move back to Yorkshire so that she would have the assistance of her family there.

[97]Mr Blanca discussed various options with the Claimant, such as applying for a Bank position, none of which were pursued by the Claimant. Much was made in submissions/cross examination of the comment made by Mr Blanca that he would put family first. However this was in the context of the Claimant asking him for his personal opinion and is by no means the basis for a constructive dismissal.

[98]The Tribunal considers that there are no facts before it constituting a fundamental breach of the implied term of mutual trust and confidence.

[99]The Claimant’s resignation letter, even if copied from a Google template, was written by hand, so giving the Claimant ample opportunity to amend it. It did not give any indication that the Claimant considered herself to be constructively dismissed, nor did any of her Facebook message interactions with Mr Blanca. The Tribunal finds that the Claimant resigned because she wanted to be near family who could offer her childcare assistance, rather than the actions of the Respondent.

[100]As such the Claimant has failed to factually establish her complaint. Allegation 2.4.6 - take a decision to recover the overpayment from the Claimant communicated to her by letter on 25 November 2021

[101]This allegation is factually made out.

[102]The Tribunal finds that the Respondent had a practice of recovering overpayments in all but very exceptional circumstances (death or bankruptcy) because the Respondent took the view that it was public money and it had a duty to manage public finances responsibly.

[103]Ms Warner stated in cross-examination that “For overpayments, regardless of who they are paid to, they are recovered.”. The Tribunal found this to be credible, and finds this to have been the Respondent’s approach.

[104]In the absence of an actual comparator, the Tribunal must consider how a hypothetical comparator would be a white former employee and/or a former employee who is not a Muslim, who has been overpaid by reason of an error made by the Respondent.

[105]The process of determining how a hypothetical comparator would have circumstances. In this case the Respondent has a very strict policy on overpayments, with very few exceptions. As such the Tribunal inferred that a hypothetical comparator would have been treated in the same way in that the overpayments would have been recovered.

[106]As such the Claimant has failed to establish less favourable treatment. Her Allegation 2.4.7 - submit the Claimant’s “Leavers Form” (at page 139) late

[107]This allegation is factually made out. The Leavers Form was submitted late, on 2 November 2021.

[108]In the absence of a actual comparator, the Tribunal must consider how a hypothetical comparator would be a white employee and/or an employee who is not a Muslim who resigned in the same factual circumstances.

[109]The process of determining how a hypothetical comparator would have circumstances. The Tribunal finds that Mr Blanca was new to his role and was not aware of the need to submit the form, until he emailed the rostering team. Therefore the Tribunal considers that a hypothetical comparator would have been treated in the same way.

[110]As such the Claimant has failed to establish less favourable treatment. Her Direct Age Discrimination

[111]The Claimant alleges that the Respondent gave the Claimant’s colleague (Diane Scholar) preferential treatment to work night shifts following the Claimant’s return to the ward in summer 2021.

[112]The Tribunal considered in any case that Ms Schoolar was not an appropriate actual comparator because her circumstances were materially different. This was because she had had a significant amount of sickness absence and there was Occupational Health advice recommending that she worked night shifts and/or underwent phased returns and reduced hours nonclinical shifts to transition back into work. Nevertheless it was clear from the rosters the Tribunal was taken to that Ms Schoolar was also allocated a mixture of night shifts and day shifts. This was accepted in cross examination by the Claimant.

[113]In the absence of an actual comparator, the Tribunal must consider how a hypothetical comparator would be an HCA in the age group between 45 and 50. This person would have childcare responsibilities causing them difficulties with working long day shifts.

[114]The process of determining how a hypothetical comparator would have circumstances. In this case all of the other HCA rosters the Tribunal was taken to showed all of the HCAs undertaking a mixture of night shifts and day shifts. No HCAs were undertaking exclusively night shifts. Whilst Ms Schoolar was not an actual comparator, she was an evidential comparator, and despite the fact that she had an Occupational Health recommendation that she should be working night shifts, she was also shown on the rota as working both long day shifts and night shifts. As such the Tribunal inferred that a hypothetical comparator would have been allocated both night and day shifts.

[115]As such the Claimant has failed to establish less favourable treatment. Her complaint of age discrimination is not well founded. Shifting burden of proof

[116]The Tribunal considered whether the burden of proof had shifted pursuant to section 136 separately for each of the above allegations. However, the conclusions and reasons reached were the same in each case, so rather than repeating the Tribunal’s conclusions, they are set out here in relation to all of the allegations. The Tribunal notes that the case law sets out that a mere difference in treatment is not sufficient to shift the burden of proof in every case. Here it is not even established that there is a difference in treatment, which is relevant to the factors to be taken into account when considering whether the burden of proof has shifted.

[117]The Claimant submitted that the following facts meant that the burden of proof should be shifted pursuant to section 136 EqA:(i) the failure by the Respondent to document the Claimant’s flexible work request and availability of other policies including application bank scheme which constituted a breach of the implied duty of trust and confidence) as well as the manager’s duties, the Claimant’s submission referred to pages 350-351 s2.2;

(ii) the Respondent did not disclose Ms Scholar’s application to the bank scheme or explain how it was granted, the Claimant’s submission referred to page 218;

(iii) Mr Blanca’s personal advice of ‘I would put my family first if I was in your shoes’ in resignation consultations without giving other options was a breach of trust and confidence giving rise to constructive dismissal.

(iv) the Claimant’s disciplinary records were duly recorded but all three managers failed to document the Claimant’s request for flexible working under sections 99-100 of the Employee Rights Act 1996.

[118]In relation to points (i) and (iv) above, it is clear that the Claimant did not make a formal flexible working request. This was acknowledged by her. The Tribunal finds, based on witness evidence, that the Claimant had informal discussions with Ms Davis (see above at paragraph 34) and with Mr Blanca (see above at paragraph 38). The Tribunal found the Respondent’s explanation entirely credible and reasonable that this sort of informal discussion would not normally be documented (e.g. by way of meeting minutes). This is in contrast to a formal disciplinary procedure, which would normally be documented. The Tribunal did not consider this to be unusual or unreasonable. It was not appropriate to draw an inference of discrimination from this.

[119]The Tribunal does not agree that there was any call to “document the availability of other policies”. The Claimant was aware that policies were on the Respondent’s intranet and could be accessed in that manner at work. Mr Blanca discussed a number of options with the Claimant which he considered appropriate. The Claimant did not approach HR or her trade union for advice. This matter was not referred to in the Claimant’s ET1 or in the List of Issues. The Claimant sought to include it by way of an amendment application which was submitted at 12 noon on the first day of the hearing, and its inclusion refused. It was then raised again in submissions where it is referred to as a breach of trust and confidence. It was not appropriate to draw an inference of discrimination from this.

[120]In relation to Ms Schoolar’s bank application, the Respondent is not the relevant employer in relation to “bank”, but rather this is run by a third party company. The Claimant did not make any third party disclosure application for this document. It was not appropriate to draw an inference of discrimination from the absence of this document/information.

[121]It is not disputed between the parties that, when the Claimant told Mr Blanca she was considering moving to Yorkshire to have better support for her young family, and then asked Mr Blanca what he would do in her situation. Mr Blanca responded that he would put his family first (see paragraph 37). This is not a fact which was included in the Claimant’s ET1, the List of Issues, amendment application, nor in the Claimant’s witness statement. The first suggestion that this was an act constituting a breach of the implied duty of trust and confidence was in cross examination and the Claimant’s closing submissions. This comment was not initiated by Mr Blanca, and the Tribunal do not consider that it is something from which discrimination could be inferred.

[122]The Tribunal considered that there were no facts from which it could infer that discrimination might have taken place in order to shift the burden of proof. Those matters put forward by the Claimant in submissions were not sufficient to do so whether taken individually or together.

[123]Even if the Claimant had succeeded in shifting the burden of proof, the Tribunal considered that the Respondent had discharged the burden of showing the absence of discrimination, as set out in its findings above. In particular by demonstrating that no evidential comparators were treated more favourably than the Claimant. Holiday pay

[124]The Claimant’s case was based on the letter at page 127 which referred to “this year’s entitlement of 262.5 hours”. The Claimant accepted that the Respondent’s annual leave year ran from 1 April to 31 March. This letter had been written on 12 May 2021. The Tribunal considers that this reference was to the whole entitlement for the period 1 April 2021 to 31 March 2022. The Claimant was not able to counter this point in cross examination. It is the natural reading of the letter.

[125]The Claimant’s employment ended on 30 September 2021. As such, pursuant to clause 34 of the contract (page 93), since her employment had terminated partway through the annual leave year, the entitlement would be pro-rated. Subsequent to the letter of 12 May 2021, an additional amount was added in relation to the Jubilee bank holiday. A full entitlement including the additional bank holiday would have been the increased amount of 270 hours of holiday. Since the Claimant worked half of the annual leave year, she was entitled to 135 hours of holiday. This was added to the holiday which had been carried over from the previous leave year.

[126]The Tribunal finds that the additional documents submitted by the Respondent, consisting of screen shots showing information about the Claimant’s annual leave, is accurate. The Claimant did not dispute the periods of leave it showed her as having taken. As such the Claimant had taken more holiday than she was in fact entitled to.

[127]The Claimant’s holiday pay complaint is not well founded. Jurisdiction

[128]Since there is more than a month between the issue of the Claimant’s ACAS certificate (on 22 October 2021) and the presentation of the claim (23 December 2021) any events which occurred before 24 September 2021 are outside of the primary time limit of three months.

[129]This means that the complaint of indirect sex discrimination, direct race and religion discrimination complaints 2.4.3, 2.4.4 and 2.4.5, and the complaint of direct age discrimination are outside of the primary time limit. Since these were not factually upheld, it cannot be said that there was a continuing act of discrimination.

[130]The remaining discrimination allegations took place after 24 September 2021. The Claimant’s last pay date was 24 September 2021 (as set out in the pay slip at page 386), on which date a payment in lieu of accrued but untaken leave should have been made, so the holiday pay claim is within the primary time limit.

[131]No reason for the delay in presenting the claim was put forward by the Claimant. The onus is on a Claimant to persuade a Tribunal that there is some good reason why it would be just and equitable to extend time in the given case.

[132]In this case, having heard all the evidence, it is also appropriate to take into account the merits of the complaints, which were all not well founded.

[133]Taking into account the lack of explanation for the delay and lack merits, Tribunal finds that would not be just and equitable to extend time in relation to any of these complaints.