Ms J Campbell v London Borough of Waltham Forest and others: 3213180/2020

EMPLOYMENT TRIBUNALS

Case No 3213180/2020

Between

Ms J CampbellClaimant

London Borough of Waltham Forest and othersRespondent

Before

Employment Judge Gardiner

In person for claimant

(1) and (2) Ms J Bann (instructed by solicitor) for respondent

Date 2 October 2023

JUDGMENT

[1]The claim against the Third Respondent is struck out under Rule 37 as having no reasonable prospect of success.

[2]The complaint against the Fourth Respondent based on its alleged liability for acts carried out by the Third Respondent as agent is also struck out as having no reasonable prospect of success.

[3]The complaint against the Fourth Respondent based on its potential liability as the Claimant’s employer is not struck out.

[4]The application that the claim against the Second Respondent should be struck out is refused.

[5]The Second Respondent’s application for an anonymity order is refused.

REASONS

Introduction

[1]Today’s hearing has been listed to consider applications from the Respondents that the cases against the Second, Third and Fourth Respondent should be struck out pursuant to Rule 37 of the Employment Tribunal Rules 2013, or alternatively the subject of a deposit order. In addition, there is an application from the Second Respondent that a restricted reporting order should be made under Rule 50 of the 2013 Rules. The Final Hearing has been listed to take place over three days from 22 to 24 June 2022.

[2]I have been provided with a bundle of relevant documents comprising 393 pages. In addition, I have been sent written submissions in the form of Skeleton Arguments from Ms Bann, solicitor for the First and Second Respondents, from Mr BrochwiczLewinski, counsel for the Third Respondent, and from Mr Campion, counsel for the Fourth Respondent. The Skeleton Arguments have referred to several cases setting out relevant principles in relation to the arguments raised on these applications.

[3]The Claimant is a qualified barrister. From 17 December 2018, she was engaged by London Borough of Waltham Forest, the First Respondent, as a Contracts and Procurement Lawyer. In that role she had the status of a worker but was not an employee of the First Respondent. Since about July 2019, her line manager was Alexandra Jacobs, the Second Respondent. The Claimant was supplied to Waltham Forest by Sellick Partnership Limited, the Third Respondent, who also supplied Ms Jacobs to Waltham Forest. The Claimant was employed by Danbro Employment Umbrella Limited, the Fourth Respondent. The Fourth Respondent’s only day to day involvement with the Claimant was in relation to administering the Claimant’s remuneration and benefits through its umbrella payroll. The Fourth Respondent also employed Ms Jacobs.

[4]The Claimant’s case is that the conduct of Ms Jacobs towards her during the period from August 2019 until her dismissal in July 2020 amounts to direct and indirect race discrimination, harassment and discrimination by way of victimisation. On that basis, if the Claimant is correct, there would be personal liability on behalf of Ms Jacobs, the Second Respondent. The Claimant also alleges that there is liability for Ms Jacobs actions on the part of the First, Third and Fourth Respondents.

[5]Proceedings were issued on 2 November 2020. On 22 December 2020, in its ET3, Waltham Forest accepted that it would be liable for any conduct by Ms Jacobs which was held to amount to unlawful discrimination.

[6]In a document dated 28 May 2021, the Claimant has sought to explain why there should be liability on the part of the Third and Fourth Respondents. So far as the Third Respondent is concerned, the Claimant alleged:a. The Third Respondent is liable under Section 109(2) Equality Act 2010 on the basis that the Second Respondent is an agency worker with the Third Respondent;

b. The Third Respondent is liable under Section 111 on the basis that “the Third Respondent acted together with the First and/or the Second Respondent and/or caused and/or induced (directly or indirectly) and/or instructed the First and/or the Second Respondent to terminate the Claimant’s contract. It is said that the Third Respondent had direct knowledge of the details of the sequence of events said to amount to discrimination and harassment between 6 July 2020 and 15 July 2020; and in particular their detailed knowledge of the email sent by the Claimant to the First Respondent on 12 July 2020”.

c. The Third Respondent is said to have liability under Section 41(1)(d) and 41(3(d) Equality Act 2010, on the basis that as principal, the Third Respondent is liable for the actions of its agent, Ms Jacob.

d. Finally the Third Respondent is said to be liable under Section 55(2)(d) and 55(5)(d) of the Equality Act 2010 as Employment Services Providers.

[7]The Claimant argues that the Fourth Respondent is liable as the employer of the Second Respondent under Section 109(1) EqA 2010, unless it can succeed in relying on the statutory defence. In the alternative, the Claimant argues that the Fourth Respondent is liable under Section 109(2) EqA 2010 for the actions of the Second Respondent as its agent.

[8]The relevant principles to apply where there is an application to strike out a claim at a Preliminary Hearing were recently summarised by the President, Mr Justice Choudhary, in the case of Malik v Birmingham City Council

UKEAT/0027/19

as follows: “30. It is well-established that striking out a claim of discrimination is considered to be a Draconian step which is only to be taken in the clearest of cases: see Anyanwu & Another v South Bank University and South Bank Student Union

[2001] ICR 391

. The applicable principles were summarised more recently by the Court of Appeal in the case of Mechkarov v Citibank N.A

[2016] ICR 1121

, which is referred to in one of the cases before me, HMRC v Mabaso

UKEAT/0143/17

. 31. In Mechkarov , it was said that the proper approach to be taken in a strike out application in a discrimination case is that:(1) only in the clearest case should a discrimination claim be struck out;

(2) where there are core issues of fact that turn to any extent on oral evidence, they should not be decided without hearing oral evidence;

(3) the Claimant's case must ordinarily be taken at its highest;

(4) if the Claimant's case is "conclusively disproved by" or is "totally and inexplicably inconsistent" with undisputed contemporaneous documents, it may be struck out; and

(5) a Tribunal should not conduct an impromptu mini trial of oral evidence to resolve core disputed facts." 32. Of course, that is not to say that these cases mean that there is an absolute bar on the striking out of such claims. In Community Law Clinics Solicitors Ltd & Ors v Methuen

UKEAT/0024/11

, it was stated that in appropriate cases, claims should be struck out and that " the time and resources of the ETs ought not be taken up by having to hear evidence in cases that are bound to fail." 33. A similar point was made in the case of ABN Amro Management Services Ltd & Anor v Hogben

UKEAT/0266/09

, where it was stated that, " If a case has indeed no reasonable prospect of success, it ought to be struck out”. It should not be necessary to add that any decision to strike out needs to be compliant with the principles in Meek v City of Birmingham District Council

[1987] IRLR 250

CA and should adequately explain to the affected party why their claims were or were not struck out.”

[9]The leading case on whether it is appropriate to make a deposit order remains Van Rensberg v Royal Borough of Kingston-Upon-Thames

UKEAT/0095/07

. At paragraph 27, Elias J said as follows: “27. Moreover, the test of little prospect of success in rule 20(1) is plainly not as rigorous as the test that the claim has no reasonable prospect of success found in rule 18(7). It follows that a tribunal has a greater leeway when considering whether or not to order a deposit. Needless to say, it must have a proper basis for doubting the likelihood of the party being able to establish the facts essential to the claim or response.” Conclusions Liability of the Second Respondent

The Law

[10]The First and Second Respondents accept that the Claimant has a legal right to bring a claim against the Second Respondent. The strike out application is not premised on the basis that the claim has no prospect of success. The contention from the First and Second Respondents is that there is no practical or legal advantage in doing so, because the First Respondent has accepted legal liability for the actions of the Second Respondent.

[11]If the Claimant makes good her case in relation to the conduct of the Second Respondent, she will establish that there is personal liability on the part of the Second Respondent. This personal liability remains, notwithstanding that the First Respondent accepts it is liable for the actions of the Second Respondent. There would be joint and several liability on the part of the First and Second Respondents. If statute provides the Claimant with potential recourse against either the First or the Second Respondents or both, then it cannot be the case that pursuing a claim against both parties is unreasonable and/or vexatious conduct. Liability of the Third Respondent (a) Liability in negligence

[12]It is clear from pages 92 and 98 of the bundle, that negligence is the primary basis on which the Claimant argues that the Third Respondent is liable to the Claimant. The same points are made on pages 245, 347 and 348. The Claimant argues that the Third Respondent knew of the manner in which Ms Jacobs was treating her yet failed to address the situation by failing to remove and thereby permitted Ms Jacobs to discriminate against her. As the Claimant puts it: “Sellick is therefore negligent and failed in its duty of care.”

[13]The Tribunal does not have jurisdiction to consider claims brought in negligence. It only has jurisdiction to consider claims to which it has been given specific jurisdiction by statute. Therefore, even if the Third Respondent knew of the Second Respondent’s alleged conduct towards the Claimant and was negligent in failing to stop it, this does not provide the Claimant with a potential cause of action in the Employment Tribunal. Insofar as the Claimant is still advancing a case in negligence (given that no such case is included in the document dated 28 May 2021), that particular complaint is struck out as having no reasonable prospect of (b) Liability as Ms Jacobs’ ‘employer’

[14]At one point, the Claimant had been contending that the Third Respondent was vicariously liable for Ms Jacobs’ conduct; or alternatively had been contending that Ms Jacobs was the Third Respondent’s employee or worker. Those contentions were withdrawn on pages 7 and 9 of the Claimant’s 18 pages of submissions dated 19 March 2021 [348] [350].

[15]The withdrawal of the Claimant’s case against the Third Respondent on the basis that the Third Respondent was Ms Jacobs’ employer was noted in the Preliminary Hearing record (at paragraph 7) [384]. (c) Liability as principal for actions of Ms Jacobs as agent

[16]Section 109(2) of the Equality Act 2010 is worded as follows: Anything done by an agent for a principal, with the authority of the principal, must be treated as also done by the principal.

[17]At the same point the Claimant accepted that the Third Respondent was not Ms Jacobs’ employer, the Claimant also withdrew her claim based on principal and agent under Section 109(2). This was made in clear in paragraphs 38, 44 and 46 of the Claimant’s 18 pages of submissions dated 19 March 2021 [349-350].

[18]Following the Preliminary Hearing before Judge Reid, the Claimant sought to revive her Section 109 claim against the Third Respondent based on principal/agent in her submission dated 28 May 2021 [392]. This was in a document purporting to set out the basis of the Claimant’s case against the Third Respondent as directed by Employment Judge Reid at paragraph 23 of her Case Management Order.

[19]Rule 51 of the Employment Tribunal Rules 2013 is in the following terms: “Where a claimant informs the Tribunal, either in writing or in the course of a hearing, that a claim, or part of it, is withdrawn, the claim, or part, comes to an end, subject to any application that the respondent may make for a costs, preparation time or wasted costs order.”

[20]In Khan v Heyward and Middleton Primary Care Trust

[2007] ICR 24

, the Court of Appeal made it clear that once a claim has been withdrawn, the Tribunal has no power to set aside the withdrawal so as to reactivate the same claim (see in particular paragraph 74). Therefore, the claim against the Third Respondent based on it being liable as principal for the actions of its agent Ms Jacobs cannot be reactivated.

[21]In any event, no sufficient factual basis has been alleged to raise an arguable case that Ms Jacobs was acting as the Third Respondent’s agent when line managing the Claimant in their work for the First Respondent. In Ministry of Defence v Kemeh

[2014] ICR 625

, CA, Elias LJ said this at paragraph 43: “I would respectfully agree that the fact that someone is employed by A would not automatically prevent him from being an agent of B, and I would not discount the possibility that the two relationships can co-exist even in relation to the same transaction. But in my judgment there would, particularly in the latter case, need to be very cogent evidence to show that the duties which an employee was obliged to do as the employee of A were also being performed as an agent of B. It is in general difficult to see why B would either want or need to enter into the agency relationship. That is so whichever concept of agency is employed. There is a complete lack of such cogent evidence here.” (emphasis added)

[22]At the relevant time, Ms Jacobs was employed by the Fourth Respondent and working under the direction of the First Respondent – such that the First Respondent is vicariously liable for her actions. Having been introduced to the First Respondent by the Third Respondent, there is no evidential material advanced by the Claimant for arguing that Ms Jacobs was also acting as agent for the Third Respondent. It is insufficient in law for the Claimant to assert (as she appears to do at [392]) that because she was an Agency worker supplied by the Third Respondent she was thereafter the agent of that entity at all times within the meaning of Section 110(2).

[23]Therefore, notwithstanding the exceptional nature of the strike out jurisdiction in discrimination cases, I would have struck out this claim as disclosing no reasonable even if it had not been withdrawn. (d) Liability for instructing, causing or inducing the First Respondent to discriminate against the Claimant in the termination of the placement

[24]The Claimant speculates that the Third Respondent is liable under Section 111 Equality Act 2010, namely that the Third Respondent instructed, caused or induced the First Respondent to discriminate against the Claimant in the termination of her placement. This contention is inherently implausible. It amounts to saying that the Third Respondent was the real decision maker, deciding which personnel the First Respondent needed and when. There is no evidence whatsoever advanced by the Claimant to support this, beyond the mere assertion that the Third Respondent was the prime mover behind this decision. No motive for such close involvement in the Claimant’s termination has been identified.

[25]To frame the Claimant’s case against the Third Respondent in this way now is inconsistent with the way that the Claimant has previously explained its case against the Third Respondent. In particular it is inconsistent with her reasoning set out in the 65-page document (starting at [75]) dated 1 January 2021, which includes a detailed explanation with supporting evidence for her opposition to the Third Respondent being removed from the proceedings:a. She does not allege that the Third Respondent took part in the decision to dismiss her, whether directly or indirectly;

b. Nor despite copious citation of email correspondence, does the Claimant identify a particular document which she will point to in support of her claim;

c. Rather, in contrast to this aspect of her claim, at paragraph (k) [98] the Claimant alleges that the Third Respondent “failed and/or omitted to remove me from the situation … in failing to act, they have permitted and/or allowed Alexandra Jacobs to discriminate against me directly and/or indirectly and/or harass me for a protracted length of time and which then led to the series of acts and/or final act of my termination. Sellick is therefore Negligent and failed in its duty of care”;

d. Further, at paragraph (l), the Claimant alleges that “Sellick knew or ought to have known Alexandra Jacobs … and/or the Council’s intent to terminate my contract prior to and/or at the date of termination. Nonetheless Sellick failed and/or omitted to intervene and/or protect my position despite their clear knowledge”;

[26]The Claimant attempts to explain why the Third Respondent is liable under Section 111 Equality Act 2010 in the document dated 2 March 2021 which starts at [238]. The potential basis for liability is introduced at paragraph 14 [251] and further explained from paragraph 25 onwards [261]. At [266], the Claimant contends that because the Third Respondent knew of the difficulties in her working relationship with Alexandra Jacobs, they must have acted together with the First Respondent to cause and/or induce and/instruct the termination of the Claimant’s placement. None of the documents to which the Claimant refers support such an evidential leap.

[27]Under the Order made by Judge Reid on 1 April 2021, disclosure was due to take place by 1 September 2021. I was not directed to any further documents arising from disclosure from which the Claimant will argue or infer that the First Respondent instructed, caused or induced the First Respondent to discriminate against the Claimant in the termination of her placement.

[28]Therefore, I consider that this is one of those “clearest cases” identified in the legal authorities referred to above where it would be appropriate to strike out this basis for potential liability on the part of the Third Respondent on the ground that it has no reasonable prospect of success. (e) Liability of employment service provider in the provision of its service

[29]The Claimant alleges that the Third Respondent is liable to the Claimant for providing its services in a discriminatory way. The Claimant explained why this was added at paragraphs 50 and 51 of the document dated 19 March 2021 [355] “At paragraph 7 of the 3rd Respondent’s proposed amended grounds of resistance, they avers and contends that they would fall within sections 55 and 56 of the Equality Act 2010. As it relates to this assertion, the Tribunal will need to make a decision regarding this point, and as such I cannot either accept or deny this assertion. However, as a result of their submission at paragraph 7 … I submit that in addition and/or alternatively, it is contended that the 3rd Respondent would be liable under s55(2)(d) and 55(5)(d) of the Equality Act 2010”. It is therefore a responsive allegation made in response to the contents of the Third Respondent’s proposed amended Response, rather than an allegation initiated by the Claimant.

[30]So far as is material, section 55 of the Equality Act 2010 is worded as follows:(1) A person (an “employment service-provider”) concerned with the provision of an employment service must not discriminate against a person— (a) in the arrangements the service-provider makes for selecting persons to whom to provide, or to whom to offer to provide, the service; (b) as to the terms on which the service-provider offers to provide the service to the person; (c) by not offering to provide the service to the person.

(2) An employment service-provider (A) must not, in relation to the provision of an employment service, discriminate against a person (B)— (a) as to the terms on which A provides the service to B; (b) by not providing the service to B; (c) by terminating the provision of the service to B; (d) by subjecting B to any other detriment. … (5) An employment service-provider (A) must not, in relation to the provision of an employment service, victimise a person (B)— (a) as to the terms on which A provides the service to B; (b) by not providing the service to B; (c) by terminating the provision of the service to B; (d) by subjecting B to any other detriment.

[31]The focus of this statutory section is on actions taken by the service-provider in the provision of its service. This is clear from the statutory definition of “the provision of an employment service” in Section 56 Equality Act 2010. This is wholly different from the way in which a worker supplied by an employment service provider carries out their day-to-day duties under the authority of the end user – here the First Respondent. As correctly stated by the Third Respondent in its Response [336 para 69(c)], the Claimant’s claim relates to matters within the Legal Team at the First Respondent and not to the provision of recruitment services carried out by the Third Respondent. There is no allegation advanced and explained of a discriminatory provision of employment services by the Third Respondent – either in the original claim or in the lengthy document starting at [75] explaining the basis for holding the Third Respondent liable.

[32]Therefore, this complaint is another instance of a “clearest case” where it is appropriate to strike out the complaint out as having no reasonable prospect of (f) Liability under Section 41 Equality Act 2010

[33]The Claimant seeks to argue that the Third Respondent was liable under Section

[41]Equality Act 2010. So far as is relevant, this section is worded as follows: Contract workers (1) A principal must not discriminate against a contract worker— (a) as to the terms on which the principal allows the worker to do the work; (b) by not allowing the worker to do, or to continue to do, the work; (c) in the way the principal affords the worker access, or by not affording the worker access, to opportunities for receiving a benefit, facility or service; (d) by subjecting the worker to any other detriment. … (5) A “principal” is a person who makes work available for an individual who is— (a) employed by another person, and (b) supplied by that other person in furtherance of a contract to which the principal is a party (whether or not that other person is a party to it). (6) “Contract work” is work such as is mentioned in subsection (5). (7) A “contract worker” is an individual supplied to a principal in furtherance of a contract such as is mentioned in subsection (5)(b). 34. In accordance with the definitions in this section, and on the pleaded facts of the present case:a. Both the Claimant and Ms Jacobs are the “contract worker” (in accordance with sub-section (7));

b. The First Respondent is the “principal” to whom the Claimant and Ms Jacobs have been supplied, making the work available to Ms Jacobs and the Claimant as contract worker (in accordance with sub-section (5)); 35. Given this statutory wording, there is no basis in law for the Tribunal to find that the Third Respondent was also acting as principal under Section 41 Equality Act 2010. Such a conclusion would extend the potential liability of the Third Respondent beyond the specific scope set out in Section 55 for employment service providers. 36. Therefore, this final alleged basis for the Third Respondent’s liability does not turn on disputed oral evidence, but on statutory construction. The Claimant’s construction is not reasonably arguable. Therefore, the Claimant has no reasonable prospect of success, and this complaint should also be struck out. 37. My conclusion is that all complaints advanced against the Third Respondent should be struck out under Rule 37 as complaints which have no reasonable prospect of Liability of the Fourth Respondent 38. Throughout the period covered by the Claimant’s allegations, Ms Jacobs was employed by the Fourth Respondent, even though she was working at the First Respondent council. In those circumstances, Section 109(1) Equality Act 2010 applies: “Anything done by a person (A) in the course of A’s employment must be treated as also done by the employer.” 39. The effect of this Section, without more, is that the Fourth Respondent is liable for any discrimination on the part of Ms Jacobs. Section 109(4) provides a limited statutory defence, namely “In proceedings against A’s employer (B) in respect of anything alleged to have been done by A in the course of A’s employment it is a defence for B to show that B took all reasonable steps to prevent A from doing that thin or from doing anything of that description”. 40. In its ET3, the Fourth Respondent does not specifically rely on this statutory defence. All that is said is that it was not aware of the allegations contained in the Claimant’s claim until 30 July 2020, after the date on which the contract had terminated. It states that it did not exercise any supervision, direction or control over the Claimant. That does not amount to a basis for finding that the statutory defence is very likely to be established; such that the Fourth Respondent is very unlikely to be liable for any proven discrimination on the part of Ms Jacobs. 41. In its Skeleton Argument, the Fourth Respondent seeks to argue that in accepting liability for any discrimination on the part of the Second Respondent, the First Respondent “effectively released the Fourth Respondent from responsibility that it would otherwise have had for R2s acts and omissions under Section 109(1) EA 2010” (paragraph 13). This proposition is said to be derived from Duck v Mayeu

[1892] 2 QB 511

(CA). Self-evidently, given its vintage, this case is not an authority as to the implications of a concession as to vicarious liability from one potentially liable party on the liability of a different party under the Equality Act 2010.

[42]I am not persuaded that the decision to continue the case against the Fourth Respondent, being a case that has a proper legal basis, is an unreasonable one. It is legally irrelevant that the award of compensation will not be higher as a result of the continued participation of the Fourth Respondent.

[43]In those circumstances, the claim must remain against the Fourth Respondent. There is no basis for striking it out on the basis that it is a claim with no reasonable prospect of success or of making a deposit order on the basis that there is little reasonable prospect of success.

[44]The alternative basis on which the Claimant seeks to make the Fourth Respondent liable is under Section 109(2) Equality Act 2010, on the basis that the Fourth Respondent is responsible for the actions of the Third Respondent as its agent. No facts are alleged to support such a contention, beyond the Third Respondent’s status as an employment agency and the Fourth Respondent’s status as the Claimant’s employer. As I have found that the claim against the Third Respondent should be struck out as having no reasonable prospect of success, this particular basis of complaint against the Fourth Respondent should also be struck out. It assumes that there is liability on the part of the Third Respondent. Application for an anonymity order under Rule 50

[45]So far as the application made under Rule 50 is concerned, this application has already been considered and determined by Employment Judge Reid at the Preliminary Hearing held on 7 April 2021. Judge Reid was not persuaded it would be appropriate to make an anonymisation order in relation to the Second Respondent’s name, for the Reasons given at paragraphs 13 to 22 of the Preliminary Hearing record [385-386]. There are no new circumstances that makes it appropriate to revisit the conclusion reached by Judge Reid. Conclusion

[46]The parties that remain part of these proceedings should co-operate to ensure that there is an agreed List of Issues in a final form that enables the Tribunal Panel conducting the Final Hearing to fully understand each of the issues to be decided. If this cannot be achieved, then the parties are to refer the matter back to Employment Judge Gardiner as a matter of urgency. If any further directions are sought then an application should also be made on the papers to Employment Judge Gardiner.

[47]The claimant then went and complained about the incident to Stephen Copsey. Mr Copsey did not work in the first respondent’s legal department, but in a different area. We make no further finding of fact, other than to note that this occurred. CDS Print and Design Contract

[48]In November and December 2019 the claimant was working on a particular matter referred to as the CDS Print and Design Contract. She had been allocated the matter in September 2019 and had provided advice to the client. In early November 2019 the claimant escalated some concerns to Ms Jacobs. Ms Jacobs replied by email dated 8 Nov 2019 informing the claimant she would take ‘take it from there’. The claimant acknowledged this but also confirmed she would keep on working on other aspects of this matter.

[49]The claimant has suggested that the matter was taken off her at this point. This was not shown by the documentary evidence that we saw. We were provided with a number of emails relating to this matter which show both the claimant and Ms Jacobs worked on this matter during November and December 2019 and they both continued to correspond with different people involved in the matter.

[50]On 5 December 2019 one client wrote to Ms Jacobs directly, not copying in the claimant, asking for urgent advice about TUPE. Ms Jacobs asked the claimant if she had provided written advice about TUPE. The claimant informed Ms Jacobs she had not. Ms Jacobs then provided written advice to the client the same day. The claimant was not copied in to that advice.

[51]The claimant was invited to a meeting with the client on 11 December 2019. The claimant has suggested that this was surprising as Ms Jacobs had taken over the matter. The emails we have seen make it clear they were both working on the matter at the time and Ms Jacobs had not fully taken over conduct.

[52]The claimant attended the meeting. There had been some difficulties with the matter and a solution was needed. During the meeting the claimant advised that a letter of intent should be used to address the difficulties. After the meeting on 11 December 2019 Ms Jacobs came and asked the claimant how the meeting went. This was in the open plan office. The claimant has alleged that Ms Jacobs stood over her in the open plan office and shouted at her. This was denied by Ms Jacobs.

[53]We did not accept the claimant’s account about what happened after the meeting on 11 December 2023 and we find that Ms Jacobs did not shout at the claimant. The claimant suggested that this incident was overheard by others, being in an open plan office. There was no contemporaneous documentary evidence to support this, such as another employee reporting that Ms Jacobs had been shouting in the office. The only supporting evidence provided by the claimant was by Ms Bryan. She said she had witnessed 2 altercations between Ms Jacobs and the claimant. This evidence was very vague. Ms Bryan just stated it happened between September 2019 and February 2020, rather than being a clear account of an incident in December 2019. We did not consider Ms Bryan’s evidence reliable and attached little weight to it. The other witnesses who gave evidence and who worked in the same office did not witness this incident. We also heard from several witnesses that this allegation was out of character for Ms Jacobs. We accepted this other evidence about how Ms Jacobs tended to act in the office. We found it clear and credible.

[54]We also noted that the claimant accepted that it would be normal and acceptable for a manager to seek an update after a meeting. She says this expressly in her statement, but then goes on to say that the problem was the manner and tone in which it was done. This was a consistent theme throughout the claimant’s evidence. She seemed unable to accept Ms Jacob’s management style so was critical of very trivial differences between what Ms Jacobs did or said and what the claimant felt Ms Jacobs should have done. With regard to this incident, one of the claimant’s complaint was that the discussion was in the open plan office rather than in a private room. However, there was no obvious reason why Ms Jacobs and the claimant needed to go into a private room for a discussion. It was an informal discussion so that Ms Jacob’s could get an update from the claimant on the meeting. We find there is nothing in appropriate about this, given that they were both working on the same matter and Ms Jacob’s was the claimant’s manager.

[55]Ms Jacobs did disagree with the advice the claimant had been given about a letter of intent and she did tell the claimant this. That is not disputed. Ms Jacobs proposed a different course of action. The claimant then sent an email to the clients, copying in Ms Jacob’s, advising of the change of plan.

[56]In relation to this matter, the claimant has complained that Ms Jacobs undermined her. There were 2 emails that the claimant seemed to be suggesting undermined her. One was the email of 5 December 2019 from Ms Jacobs providing TUPE advice to the client. On reading the email, we could not see how that email could be seen as undermining the claimant or critical of her in any way. Ms Jacobs simply provided more detailed advice on relevant area of law which the claimant had not previously provided full advice to the client. Ms Jacobs did not make any reference to the claimant’s advice in her email or contradict what the claimant had said previously. It is entirely appropriate as a professional email from a lawyer to a client providing advice in response to a request.

[57]The second is the email the claimant sent on 11 December 2019 after the meeting. This is an email from the claimant to the client but in this she explains that she has discussed the situation with Ms Jacobs and that the advice on how to proceed is now different. The following day the claimant sent a second email reiterating the change in position, again saying this was decided by Ms Jacobs.

[58]The claimant relied on these in support of her allegation that her work was publicly criticised by Ms Jacobs. We find as a matter of fact that these emails are neither critical or undermining the claimant. It is not reasonable to interpret them in such a way. The emails are all professional and provide legal advice to a client on a matter which was difficult and that needed to be resolved urgently. The claimant and Ms Jacobs were both experienced lawyers and had different opinions on the best way to handle the situation. This is not unusual. As the senior lawyer in the team, so ultimately the person with responsibility, it was appropriate for Ms Jacobs to make a decision on what she thought was best and instruct the claimant to proceed in that manner. This was not critical of the claimant and did not undermine her. It is also not credible to suggest that the reason that Ms Jacobs did this was solely to undermine the claimant. This would be contrary to Ms Jacob’s responsibility to act in her client’s best interest and advise them accordingly.

[59]We were also provided with other documents including correspondence on this matter between the claimant, Ms Jacobs and others. We could not identify anything within this correspondence is unduly critical of the claimant. As noted, before, this was a difficult matter and Ms Jacobs was the manager providing advice, support and supervision to the claimant.

[60]The claimant then was on leave from 18 December 2019 and Ms Jacobs took over conduct of this matter during her absence. Sensory Services

[61]This was another matter claimant was dealing with around the same time. On 16 January 2020 the client escalated some concerns to Ms Jacobs. Ms Jacobs then raised these concerns with the claimant. We have seen various pieces of correspondence from the time related to this matter.

[62]This matter just forms the background to some allegations made by the claimant. What the claimant alleged is that there was another occasion where Ms Jacob spoke to her about this matter in the office, in front of colleagues, in a public and humiliating manner. The Sensory Services contract, and the problems that had arisen, just provide the context

[63]The claimant described an occasion where she says that Ms Jacobs came to speak to her in the open plan office and asked whether there was a solution to the problems that had arisen with this contract. The claimant again accepted that this would usually be acceptable by a manager. She then goes on to allege that it was the manner Ms Jacobs did this was not acceptable to her and she says Ms Jacobs raised her voice. Again, this was an instance where the claimant has described how Ms Jacobs acted as being ‘different’.

[64]We found the claimant’s account of this alleged incident unclear and vague. No date given and she did not provide any corroborating evidence. As before, we found the evidence of Ms Jacobs and the first respondent’s other witnesses more persuasive. We accepted that evidence that Ms Jacobs did not raise her voice in the office and that had she done so someone would have noticed. Again, we find that it seems more likely that the claimant was not comfortable with Ms Jacob’s management style. We concluded that the claimant generally objected to Ms Jacob managing her in an appropriate way complained if there were trivial differences between what the claimant’s expectations and what Ms Jacobs actually did. Hawskswood Group Contract Termination

[65]In March 2020 the national lockdown commenced and from then the claimant and Ms Jacobs were working remotely.

[66]On 25 March 2022 Ms Jacobs allocated to the claimant a new matter, known as Hawkswood. The claimant sent her legal opinion to the client on 26 March 2020. On the 2 April 2020 the claimant forwarded the advice to Ms Jacobs, Mr Walling and also Kim Travis, the first respondent’s head of litigation. The claimant said in the email “I welcome your inputs in respect of my advice, thanking you in advance”.

[67]Shortly after, on the same day, the claimant wrote to the client and copied in Ms Jacobs, Mr Walling and Ms Travis. At 18.13 Ms Travis wrote to the claimant and said she should not be a party to the correspondence providing advice to the client due to a Chinese wall that was in place. The claimant acknowledged this email.

[68]Ms Jacobs responded to Ms Travis’ email and confirmed that Ms Travis should not be copied into advice. Ms Jacobs then said in her email to the claimant that “It would be better practice on matters where you are unsure about contractual interpretation, that you arrange a discussion with me first before we finalise our advice and indeed issue it to clients”. Ms Jacobs sent a further email to just the claimant and Mr Walling with more detailed comments on the advice that the claimant had provided. Ms Jacobs suggested that the advice could have been “better tailored and covered wider contractual terms”. She gave her views on the issues. She also included in this email a similar comment about discussing contractual interpretation before any advice was sent to the clients.

[69]The claimant’s complaint is about those two emails from Ms Jacobs which she says were critical and undermined her publicly. We have seen the emails and heard from the claimant that she was upset about the perceived criticism, particularly when Ms Travis and Mr Walling were copied in. We can understand that the claimant may have not welcomed the feedback or suggestion she seek assistance from Ms Jacobs that was copied to others. However, we do not accept that these emails can be read as undermining the claimant. The claimant has alleged that this was a premeditated attack. This is at odds with the emails we read. The claimant had expressly said in her email she welcomed input, and Ms Jacobs responded to this. Again, Ms Jacobs was the claimant’s manager and providing appropriate feedback. There was no evidence at all to suggest that there was any ill intent on Ms Jacob’s behalf. Events of July 2020

[70]At this time there were three lawyers in the contracts team who were agency workers. There was another permanent employee, Moshina Saleem, who was on maternity leave. She was due to return in June 2020. On 4 June 2020 Ms Jacobs and Mr Walling met to discuss Ms Saleem’s return to work and the resourcing of the department. They decided that once Ms Saleem returned the department would not need all three agency lawyers. They decided that one of the agency lawyers would need to be let go. We heard from Ms Jacobs that there was an initial discussion at that meeting and Mr Walling and her agreed that Jane Davidson and Shirley James were good at the job and integrated well into the department. They also agreed the claimant had not integrated well. There had also been some complaints from clients and colleagues. We accepted it was likely this discussion took place at that time but we accepted that this was an initial discussion and no definite decision had been made.

[71]At this point it was a few months into the national lock down and the whole department was working remotely. Ms Jacobs explained that there were fortnightly virtual team meetings to allow the whole team to meet and discuss anything necessary. During June 2020 the claimant did not attend all of these meetings, stating she had pressing deadlines.

[72]On 8 July 2020 the claimant sent an email to Ms Jacobs at 13.11 stating she had completed her hours for that week and would not be working on Thursday or Friday because she would not be paid for this. We have already concluded that Mr Walling had agreed with the claimant a working pattern that entailed three days in the office and additional work remotely on Thursday and Friday. Due to the lockdown all work was undertaken remotely, but the underlying agreement that the claimant would be doing some work across the whole week had not changed. There was no agreement that she could only work three days a week.

[73]There followed an exchange of emails between the claimant and Ms Jacobs. We are not going to cite these in full. The key points are that the claimant said to Ms Jacobs she was working 5am-9pm every day and she wanted to condense her work for the first respondent to 3 days per week going forward. Ms Jacobs had asked about the claimant’s workload and what needed to be progressed before the next Monday and the claimant said nothing needed progressing.

[74]On 9 July the claimant sent a further email to Ms Jacobs. The key points of this were: - She intended to commence a condensed 3 day week from 13 July. - She reiterated that she was working 5am-9pm some days. - She was unlikely to attend Monday’s team meeting and this would continue in the future depending on her workload.

[75]In respect of this email, we note again the claimant had not agreed with Mr Walling she could condense her work to just 3 days a week. Neither had she asked him this again at the time. This was a unilateral decision by the claimant.

[76]On 13 July Ms Jacobs sought to arrange a meeting with the claimant. They had been due to have their monthly 1:1 on 21 July 2020 but Ms Jacobs decided to bring it forward. We accepted Ms Jacob’s explanation that this was because she was concerned about the claimant due to the email exchanges the previous week. Ms Jacob’s concerns were very understandable. This was in the middle of lockdown and everyone had been working remotely for several months. Discussions about wellbeing and work were commonplace. The claimant had not been attending team meetings, citing workload, and she had informed Ms Jacobs she was working 16 hour days. A manager trying to speak to an employee was not just understandable but can be seen as a positive thing to do to check on the wellbeing of the employee.

[77]Ms Jacob’s had access to the claimant’s online diary. We have seen the diary for that week. The claimant had blocked out periods of time based on her own workload and time management. She did not have any external commitments such as meetings with clients diarised. At 9am on 13 July Ms Jacob’s sent a meeting invitation for 14 July. We find this was appropriate as it did not clash with any external commitments, only the claimant’s own plans for managing her workload.

[78]The claimant rejected that meeting invitation. The claimant sent Ms Jacobs an email asking about the rearranged supervision and saying she could do 21 July or after. Ms Jacobs responded to explain she had brought it forward as she was concerned about the claimant’s workload and she “would like to see how I can ease the pressure’ so she would re-send for 14 July. The claimant responded to say she was fine with her work and she asked that the 1:1 was on 21 July. At approximately the same time Ms Jacobs sent another invitation for 14 July. The claimant declined this meeting.

[79]At 11.34am that day the claimant sent to Ms Jacobs a relatively lengthy email. She resent it with some amendments at 11.51. We are not going to set out the contents of this email in detail. The gist of the email was to complain about Ms Jacob’s management style and what the claimant perceived of micromanagement. She suggests there are difficulties with their relationship and they should limit their interactions. The claimant ends by asking that the 1:1 is rescheduled on or after 21 July. The claimant did not expressly complain about discrimination or mention race or any other protected characteristic. Neither does she complain about being treated differently to others in any way.

[80]At 11.52 Ms Jacobs had sent another meeting invitation for 20 July 2020. The claimant has said that again this clashed with a commitment. The only commitment we could see in the claimant’s diary for that time was time blocked out to assist her own workload management. There was no commitment such as a client meeting. The claimant declined this invitation from Ms Jacobs.

[81]On 13 July Ms Jacobs was also in contact with Mr Walling. She initially emailed to ask for a catch up the following day. At 7.13pm Ms Jacobs sent an email to Mr Walling advising of difficulties she was having with the claimant. She stated she was at ‘breaking point’. Ms Jacobs referred to some historical matters, such as client complaints. She also informed him of the issues that day with the claimant rejecting the invitations for the 1:1. AJ forwarded the email correspondence with the claimant to Mr Walling.

[82]The following morning at 7.54 the claimant wrote to Mr Walling. She forwarded the emails of 11.34 and 11.51 from the day before. She says she is ‘suffering in silence’ and suggests something else may be going on and that Ms Jacobs is trying to sabotage her. The claimant does not mention discrimination, race or any other protected characteristic in this email. The complaints are quite general in nature.

[83]The claimant has said that as part of this claim that this email was a complaint that should have been investigated. We reviewed fully the contents of this email. While the claimant does complain about Ms Jacobs in the email it is not a formal complaint and there is nothing in the email itself which suggests it should be treated as such. The email is informal in nature. Mr Walling did not directly respond to it that email at any point.

[84]On 14 July 2020 Mr Jacobs tried again to rearrange the 1:1. We accepted Ms Jacob’s evidence that she wanted to meet with the claimant to discuss her workload. The claimant had expressly said to Ms Jacobs she wanted it rearranged back to 21 July 2020 and this is what Ms Jacobs tried to do. Ms Jacobs sent an invitation at 4.42pm. Unfortunately this time the invitation did clash with a client meeting the claimant. This rearranged 1:1 was exactly the same as the original 1:1 that had been cancelled the day before. However, Ms Jacobs accepted that she had not re-checked the Cl’s diary on this occasion. We accept that this was a genuine error by Ms Jacobs as it was reasonable for her to assume that the Cl would still be free at the time of the original time. We find there was no ill intent by Ms Jacobs in sending this meeting request.

[85]The claimant responded at 5.15pm to say there was a clash. The claimant asked if it was on purpose. In this email the claimant expressly says that at any further meetings Mr Walling or Mark Hynes, the first respondent’s Corporate Director of Governance and Law, would need to be present.

[86]Ms Jacobs sent a further invitation by return for 21 July but at a slightly later time. The claimant responded to ask if Mr Walling or Mr Hynes would be there. The claimant wrote again at 6.08pm reiterating that her attendance was subject to either Mr Walling or Mr Hynes being present.

[87]At 6.35pm on 14 July Ms Jacobs forwarded the claimant’s email to Mr Walling stating that ‘this is madness’ and she will call Sellick as she felt it was getting out of hand. We have noted from the documentary evidence that Ms Jacobs and Mr Walling were due to have a 1:1 on 14 July 2020. Neither Mr Walling or Ms Jacobs gave evidence on what happened at that meeting. We have inferred from the documentary evidence and the way that Ms Jacobs asked about contacting Sellick in the email that there was probably a conversation between Ms Jacobs and Mr Walling about the claimant and what may happen next.

[88]The following morning Mr Walling responded telling Ms Jacobs to call Sellick, which she did. During evidence, particularly the cross exam by the claimant, there was discussion about who actually made the decision. We accepted that ultimately it was Mr Walling ‘s decision. He provided the authorisation to Ms Jacobs, though we accept that he made this decision after Ms Jacobs raised concerns with him and there was probably some discussion between them. We accepted that as an agency worker Ms Jacobs did not have authority to make that decision.

[89]Ms Jacobs called the agency and terminated the claimant’s engagement. Ms Jacobs gave the agency one week’s notice.

[90]During the day on 15 July there was some further email correspondence between Ms Jacobs and the claimant. Ms Jacobs set out in email a summary of the difficulties about arranging the 1:1. She did not mention to the claimant directly that a decision had been made to terminate the claimant’s contract.

[91]The claimant responded to Ms Jacobs twice. The second email at 15.31 was resending the same email with some additional amendments. We are not setting out the contents of these emails in full. The gist was to complain about the breakdown in the working relationship from claimant’s point of view. She reiterated she would only meet with Mr Walling and Mr Hynes present. She stated that Ms Jacob’s actions had been vindictive and made general complaints about Ms Jacobs belittling her or being aggressive. She does not complain of discrimination, mention race or any other protected characteristic. There is nothing in these emails where the claimant suggests she is being treated differently or worse than anyone else.

[92]Immediately after this the claimant wrote to Sellick and forwarded some of the emails between her and Ms Jacobs. This essentially just repeated the same complaints that she had made a few days earlier to Ms Jacobs and Mr Walling. The complaints are about Ms Jacobs and her working relationship with Ms Jacobs. Overall the complaints are quite general in nature. The claimant does suggest she has been singled out. However, she does not make any mention of race or any other protected characteristic. She makes no suggestion about what why she feels singled out or why she thinks this was. This email was only sent to Sellick and neither Ms Jacobs or Mr Walling were copied in.

[93]Looking at the claimant’s emails to Ms Jacobs, Mr Walling and Sellick we have concluded that at this point there was a complete breakdown in the working relationship between all the parties. The claimant made it clear in her correspondence she does not want to work with Ms Jacobs and will not do so in the future. She expressly refers to the deterioration in the working relationship.

[94]At some point during the day Ms Jacobs called Sellick to inform them of the decision to terminate the claimant’s engagement. This was confirmed in an email at 3.58pm. The decision had already been made by Mr Walling by the time he sent the email to Ms Jacobs in the morning. Sellick called the claimant around 4pm and informed her that her engagement was being terminated with one week’s notice. This was followed up by email. The claimant acknowledged this and clarified her last day would be 22 July 2020.

[95]The claimant has said she was given no reason for the termination. There is no reason in any of the documented correspondence from Sellick. However, at 4.59pm the claimant sent an email to Mr Hynes and Mr Walling, copying in a number of other senior people at the council including councillors. In this she says: “I am now told that I am no longer required due to funding’. This suggests that she was given a reason. It may not have been the actual reason or a full explanation of the reasons that Mr Walling and Ms Jacobs decided to terminate her engagement. However, we find the claimant was given a reason. This reason was also at least partially true as Mr Walling had decided previously that once Ms Saleem returned from maternity leave the first respondent could not justify having three agency lawyers in the team.

[96]In terms of Ms Jacob’s and Mr Walling’s reasons for the decision to terminate the claimant’s engagement, we accepted their explanations as genuine. There was a combination of factors. There was an intention to reduce the number of agency lawyers due to Ms Saleem returning. There were also long standing issues with the claimant’s performance, such as client complaints. As a result of this she had already been flagged as the agency worker likely to be let go. The trigger to the final decision was sequence of events from 8 July until 15 July. By 15 July 2020 there was a complete breakdown in the working relationship between the claimant and Ms Jacobs and claimant was refusing to engage with Ms Jacobs as her manager. The claimant’s own emails from this period of time also make it clear that she viewed her relationship with Ms Jacobs as having broken down.

[97]As noted above, the claimant sent a lengthy email complaining about the termination of her engagement and her other complaints about Ms Jacobs. In this she expressly suggests that Ms Jacobs acts in a certain way to team members of African descent. She also says that if matters cannot be resolved she will take out a grievance.

[98]On 16 July 2020 the claimant sent a further email to Sellick. In this she says she is seeking legal advice and she has been in contact with ACAS in relation to brining a claim against first respondent. She says this is on the grounds of discrimination.

[99]On 20 July 2020 the claimant sent a formal appeal to the first respondent. This was sent by email to Mark Hynes and Stuart Petrie, the CEO. It was also copied to some other senior employees and a councillor. This is quite lengthy and we will not go through in detail. For the purposes of the issues we are dealing with we just note that the claimant does expressly complain of discrimination on the grounds of race.

[100]Mr Hynes replied to the claimant and informed her that as an agency worker she could not appeal against dismissal and she would not be able to pursue an unfair dismissal claim. He also said there was also no council policy that applied in her situation and the other policies, such as fairness at work, did not apply to agency workers. He does say that he would ask Mr Walling to respond to the issues that the claimant had raised about Ms Jacobs.

[101]Mr Walling also wrote to the claimant on 20 July. He also stated that the claimant had no right to appeal as an agency worker. He set out some more detail about the reason her contract had been terminated. In this correspondence Mr Walling referred to the return of Ms Saleem and its impact on the first respondent’s need for agency lawyers. Mr Walling also referred to the claimant’s unilateral decision to change her working hours in a way that was not acceptable. One point we will also note about this email is that although Mr Walling says that there is no right to appeal for agency staff, he does in effect respond to the claimant’s appeal. He reviews the decision to terminate the claimant’s contract and states that the decision remained the same.

[102]In this email Mr Walling also says that he will review the complaints the claimant made about Ms Jacobs. He says that he will contact the claimant if he needs to speak to the claimant about this. In response the claimant says she has no further information. As far as we are aware Mr Walling did not provide any outcome to any investigation and we were not provided with any evidence that an investigation had taken place. This is not part of the claimant’s case, so we make no further findings in this respect. Miscellaneous findings of fact

[103]These findings of fact are for completeness and relate to some of the claimant’s claims which are not based on specific events as set out in the chronology. Offers of permanent positions to agency staff

[104]During the claimant’s engagement with the first respondent there were 3 agency lawyers in the contracts team. These were the claimant, Shirley James and Jane Davison. Moshina Saleem was on maternity leave and the agency lawyers were partially covering that role. We accepted Mr Walling’s evidence that the agency lawyers were not covering other substantive roles, but were brought in to help manage the department’s work load. There was no expectation that any of them may subsequently be offered permanent employment. We also accepted Mr Walling’s evidence that there was no automatic movement from agency worker to permanent employee. If a permanent vacancy arose that may be offered to an agency lawyer. This may then be accepted by the lawyer, who would then become an employee.

[105]The claimant did not provide any evidence that showed she had expected to be offered a permanent role by the first respondent. On the contrary, it is clear from the evidence that the claimant’s engagement was under review by both her and the council. In part this was due to her desire to continue practicing as a barrister, which may not have been compatible with continuing to work for the first respondent. In Spring 2019 there had also been discussions with Sheila Saunders about the claimant leaving after her annual leave. We were also provided with evidence that showed the claimant was regularly discussing alternative roles with Sellick.

[106]While the claimant worked for the first respondent no permanent roles were advertised in the contracts and procurement team. Shirley James and Jane Davidson continued to work for the first respondent as agency staff. Shirley James has now been offered and accepted a permanent role. This took place many months after the claimant left. Complaints by other staff members.

[107]Throughout these proceedings the claimant said there were other black members of staff within the contracts team who complained about Ms Jacobs and their complaints were not dealt with by the first respondent. Ms Bryan made a complaint about Ms Jacobs. This was not disputed and the first respondent also acknowledged that it took a lot longer than it should have for them to fully deal with the complaint. Ms Bryan had appealed the outcome of her grievance and one of the findings of the appeal outcome was there had been delays.

[108]The claimant’s relationship with Ms Bryan remained poor during 2019. On 6 November 2019 Ms Bryan raised a complaint directly with Mr Walling about the claimant. Ms Bryan also says in this email that she had experienced poor behaviour from other employees but she did not name them then. It is possible Ms Bryan may have been referring to Ms Jacobs, but in November 2019 she did not name her.

[109]The claimant had asserted that Shirley James and Lorraine Clark also made complaints. There was no evidence that Shirley James made any complaint about Ms Jacobs. The claimant relied on some WhatsApp messages with Ms James. These were private conversations between the claimant and Ms James where they share their views. There is no evidence that Shirley James ever complained about Ms Jacobs to the first respondent.

[110]Within the outcome if Ms Bryan’s appeal it is recorded that Ms Clark said she could not work with Ms Jacobs, and that was a reason she gave for leaving. There is no indication though that Ms Clark made a complaint. Within the appeal all that is said is that Ms Clark found Ms Jacobs condescending and she could not work with her. Any complaint was informal and it was made in the context of an agency worker explaining why she was leaving after only a short period of time.

[111]All we can conclude there is some evidence that Mr Walling did not deal with formal complaints promptly and did not necessarily recognize when an informal complaint may have been made. In terms of complaints about Ms Jacobs, the evidence we had indicated there were some employees who found her supportive and good to work with. The evidence from Jade McKenzie-Benjamin was compelling in this respect, as was that of Steven Ruggles. Others did not like her management style. This includes the claimant, Ms Bryan and Ms Clark. Comparators

[112]For some of the claimant’s claims of direct discrimination she has identified specific comparators. For completeness we make the following findings of those named comparators: - Alex Jacobs is white and of Ukrainian/Jewish heritage. She was also engaged via an agency but her role was different as she was the senior lawyer. - Tuba Kara was Turkish. She was also an agency worker but a paralegal, not a qualified lawyer. - Monica Celoric is white. She was also agency staff. No further evidence was given about her role or which team or department she was in. - Ernesto Meskauskaite is white. He is also agency staff but no further evidence was given about his role or which team or department he was in. - Jane Davidson is white. She was engaged in the same role as the claimant and via the agency. - Sheila Teli is Asian and engaged via an agency. No further evidence was given about her role or which team or department she was in. - Shirley James is also black and the evidence we heard indicated she is of a similar heritage to the claimant. She was engaged via the agency in the same role as the claimant. Notice pay

[113]The claimant was given one week’s notice. The claimant has suggested that other agency workers were given more than this. She has cited Shirley James being told she would get longer and suggested other agency staff did get more.

[114]The claimant was not able to provide evidence to substantiate this, it was just an assertion. We note that Ms James’ engagement was not terminated in any event. We heard from Mr Walling, and accepted his evidence on this point, that the normal arrangement with agency staff would be one week’s notice but on occasion there may be practical reasons why longer notice could be given on either side. If longer notice was given it was because of the specific situation.

The Law

[115]The Claims pursued by the claimant are:115.1 Direct race discrimination;

115.2 Harassment on the grounds of race;

115.3 Victimisation. Direct Discrimination – Section 13 Equality Act 2010

[116]Direct discrimination takes place where a person treats the claimant less favourably because of race than that person treats or would treat others. Under s23(1) Equality Act 2010, when a comparison is made, there must be no material difference between the circumstances relating to each case. ‘Race’ includes nationality or national origins.

[117]Decisions are frequently reached for more than one reason. Provided the protected characteristic or, in a victimisation claim, the protected act, had a significant influence on the outcome, discrimination is made out. (Nagarajan v London Regional Transport

[1999] IRLR 572

, HL)

[118]Section 136 of the Equality Act 2010 sets out the burden of proof. Under s136, if there are facts from which a tribunal could decide, in the absence of any other explanation, that a person has contravened the provision concerned, the tribunal must hold that the contravention occurred, unless that person can show that he or she did not contravene the provision.

[119]Accordingly, where a claimant establishes facts from which discrimination could be inferred then the burden of proving that the treatment was in no sense whatsoever unlawful passes to the respondent. Guidelines on the burden of proof were set out by the Court of Appeal in Igen Ltd v Wong

[2005] EWCA Civ 142

;

[2005] IRLR 258

. Once the burden of proof has shifted, it is for the respondents to prove that they did not commit the act of discrimination. 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, since 'no discrimination whatsoever' is compatible with the Burden of Proof Directive. Since the facts necessary to prove an explanation would normally be in the possession of the respondents, a tribunal would normally expect cogent evidence to discharge that burden of proof.

[120]The Court of Appeal in Madarassy v Nomura International plc

[2007] EWCA Civ 33

;

[2007] IRLR 246

, a case brought under the then Sex Discrimination Act 1975, states: ‘The burden of proof does not shift to the employer simply on the claimant establishing a difference in status (eg sex) and a difference in treatment. Those bare facts 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.’

[121]Inferences can only be drawn from established facts and cannot be drawn speculatively or on the basis of a gut reaction or ‘mere intuitive hunch’ (Chapman v Simon

[1994] IRLR 124

) or from ‘thin air’ (Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

). Discrimination also cannot be inferred only from unfair or unreasonable conduct (Glasgow City Council v Zafar

[1998] ICR 120

[122]This means that to succeed with any of his claims for direct discrimination the claimant must first show that he has been treated less favourably than others in the same circumstances. The claimant must also have shown facts from which we can infer that the reason for the less favourable treatment may have been due to the claimant’s race. Only after this does the burden shift to the respondent who must show that there is a different non-discriminatory reason for the treatment, that it is in no way due to the claimant’s race. Harassment – Section 26 Equality Act 2010

[123]Under section 26 Equality Act 2010: (1) a person (A) harasses another (B) if – (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of – (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. … (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account – (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.

[124]With a claim for harassment the claimant must prove on the balance of probabilities that the conduct he has complained of occurred.

[125]The test of whether the conduct amounted to harassment is part objective and part subjective. The Tribunal must take into account the claimant’s subjective perception but it is also required to look at that objectively to see if it was reasonable for the claimant to have considered his dignity to be violated or that it created an intimidating, hostile, degrading, humiliating or offensive environment.

[126]In Grant v HM Land Registry

[2011] EWCA Civ 769

the Court of Appeal said that: “Tribunals must not cheapen the significance of the words “intimidating, hostile, degrading, humiliating or offensive environment”. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment.”

[127]In Richmond Pharmacology v Dhaliwal

[2009] ICR 724

the EAT stated: “Dignity is not necessarily violated by things said or done which are trivial and transitory, particularly if it should have been clear that any offence was unintended. While it is also important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase.”

[128]Whether or not the conduct is related to a protected characteristic is a matter of fact for the Tribunal drawing on all the evidence before it. Victimisation – Section 27 Equality Act 2010

[129]Section 27 of the Equality Act 2010 provides as follows:(1) A person (A) victimises another person (B) if A subjects B to a detriment because – (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.

(2) Each of the following is a protected act – (a) bringing proceedings under this Act; (b) giving evidence or information about 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.

[130]In a victimisation claim there is no need for a comparator. The Act requires the Tribunal to determine whether the claimant had been subject to a detriment because of doing a protected act. As Lord Nicholls said in Chief Constable of the West Yorkshire Police v Khan

[2001] IRLR 830

:- “The primary objective of the victimisation provisions ... is to ensure that persons are not penalised or prejudiced because they have taken steps to exercise their statutory right or are intending to do so.”

[131]The Tribunal has to consider(1) the protected act being relied on;

(2) the detriment suffered;

(3) the reason for the detriment;

(4) any defence; and

(5) the burden of proof.

[132]To benefit from protection under the section the claimant must have done or intended to or be suspected of doing or intending to do one of the four kinds of protected acts set out in the section. The allegation relied on by the claimant must be made in good faith. It is not necessary for the claimant to show that he or she has a particular protected characteristic but the claimant must show that he or she has done a protected act. An act can be protected even if the individual does not expressly make reference to a breach of the Equality Act 2010. However, the facts that are asserted must be capable of being a breach of the Equality Act 2010.

[133]The question then to be asked by the tribunal is whether the claimant has been subjected to a detriment. The protected act must be the reason for the treatment which the claimant complains of, and the detriment must be because of the protected act. There must be a causative link between the protected act and the victimisation and accordingly the claimant must show that the respondent knew or suspected that the protected act had been carried out by the claimant, (South London Healthcare NHS Trust v AlRubeyi EAT0269/09). Once the Tribunal has been able to identify the existence of the protected act and the detriment the Tribunal has to examine the reason for the treatment of the claimant. This requires an examination of the respondent’s state of mind. Guidance can be obtained from the cases of Nagarajan v London Regional Transport

[1999] IRLR 572

and Chief Constable of West Yorkshire Police v Khan

[2001] IRLR 830

, and St Helen’s Metropolitan Borough Council v Derbyshire

[2007] IRLR 540

. In this latter case the House of Lords said there must be a link in the mind of the respondent between the doing of the acts and the less favourable treatment. It is not necessary to examine the motive of the respondent see R (on the application of E) v Governing Body of JFS and Others

[2010] IRLR 136

. In Martin v Devonshires Solicitors EAT0086/10 the EAT said that: “There would in principle be cases where an employer had dismissed an employee in response to a protected act but could say that the reason for dismissal was not the act but some feature of it which could properly be treated as separable.”

[134]What this means is the claimant must first show that he has done something which is a protected act under the Equality Act 2010. Having established a protected act the claimant must show there has been a detriment. The issue for the Tribunal to determine is whether or not there is a causal connection between the act and detriment Time Limits

[135]Employment claims under the EqA 2010 must be brought within three months of the act or omission complained of, or the end of that act if it extends over a period of time, subject to the just and equitable extension (s. 123 EqA 2010).

[136]Guidance on whether conduct should be regarded as extending over a period of time can be found in Commissioner of Police of the Metropolis v Hendricks

[2003] ICR 530

; summarised as follows in South Western Ambulance Service NHS Foundation Trust v King

[2020] IRLR 168

: “Hendricks demonstrates that there are several ways in which conduct might be said to be conduct extending over a period (or, as it is sometimes called, a "continuing act"). One example is where there is a policy, rule or practice in place in accordance with which there are separate acts of discriminatory treatment. Another example given in paragraph 48 of Hendricks is where separate acts of discrimination are linked to one another and are evidence of a continuing discriminatory state of affairs, as opposed to being merely a series of unconnected and isolated acts. In both these examples, the continuing act arises because of the link or connection between otherwise separate acts of discrimination.”

[137]The EAT in King held that where a series of acts is relied upon by a claimant as constituting a “continuing act”, only those acts which are ultimately found to be acts of discrimination can form part of that continuing act.

[138]In order to give rise to liability, the act complained of must be an act of discrimination. Where the complaint is about conduct extending over a period, the claimant will usually rely upon a series of acts over time each of which is connected with the other, either because they are instances of the application of a discriminatory policy, rule or practice or they are evidence of a continuing discriminatory state of affairs. However, if any of those constituent acts is found not to be an act of discrimination, then it cannot be part of the continuing act.

[139]The Tribunal has discretion to extend time if it is just and equitable to do so. The presumption Vicarious liability

[140]Under section 109 of the Equality Act 2010:(1) Anything done by a person (A) in the course of A's employment must be treated as also done by the employer.

(2) Anything done by an agent for a principal, with the authority of the principal, must be treated as also done by the principal.

(3) It does not matter whether that thing is done with the employer's or principal's knowledge or approval.

(4) In proceedings against A's employer (B) in respect of anything alleged to have been done by A in the course of A's employment it is a defence for B to show that B took all reasonable steps to prevent A – (a) from doing that thing, or (b) from doing anything of that description.

[141]Guidance on whether something is done “in the course of employment” can be found in Jones v Tower Boot Co Ltd

[1997] IRLR 168

(CA). It will be a question of fact for the Tribunal to decide.

[142]In this case neither the claimant nor the second respondent were employees of the first respondent. However early in proceedings the first respondent accepted responsibility for any acts or omissions of the second respondent on the basis that the second respondent was the first respondent’s line manager.

[143]The claimant maintained that the fourth respondent should also be liable. It is not impossible for there to be a situation where a person responsible for any act of discrimination to be simultaneously an employee of one principal and an agent of another principal. In the case of Ministry of Defence v Kemeh

[2014] ICR 625

(CA) EJ Elias observed that there needed to be “very cogent evidence” to show the duties being done as an employee of one party were also being done as an agent of another. Discussion and

Conclusions

[144]The claimant made ten specific allegations of conduct that she said was discriminatory, of which two allegations were comprised of two elements. The claimant has argued that all allegations are of harassment on the grounds of race or in the alternative direct discrimination. She has then included claims for vicitmisation in respect of three of those allegations.

[145]We first set out our conclusions in respect of the claims for harassment and direct discrimination, as each of these have been argued in the alternative. Under the Equality Act 2010 if any conduct is found to be harassment it cannot also be direct discrimination, so they are alternative claims.

[146]In respect of each harassment/direct discrimination claim have looked at each factual allegation in turn and considered the following: 146.1. has the claimant proved the relevant facts; if so 146.2. do the facts show that there was unwanted conduct related to race with the proscribed purpose or effect (harassment); if not 146.3. do the facts show that the claimant has been treated less favourably due to race (direct discrimination)

[147]When considering direct discrimination we have considered if the claimant has shown facts from which can infer the reason for that unfavourable treatment is race. If she has the burden of proof shifts so we then consider if the respondents discharged that burden by showing a different non-discriminatory reason. Vanilla comment

[148]As a matter of fact we concluded that Ms Jacobs did not make this comment to the claimant in August 2019 as alleged by the claimant. On the contrary we concluded it was the claimant who used the term.

[149]The claimant did not prove on the balance of probabilities that the unwanted conduct or less favourable treatment occurred as she alleged. On this basis both claims for harassment and direct discrimination fail. Glamour comment

[150]We found that Ms Jacobs did refer in some way to the claimant being glamourous when introducing her to Ms Clark. The claimant objected to this so it was unwanted conduct. This was evidenced by the fact the claimant complained about it almost immediately to Ms Jacobs and to Simon Copsey.

[151]We did not make a specific finding on the exact words used. The reason for this is that we have concluded that it is the effect of either iteration was sufficiently similar. In a business context we have concluded that being described as glamourous is potentially inappropriate. Looked at objectively, it could be taken as undermining or belittling the person being described, making them seem less serious and professional. We accepted that being introduced this way has the potential to be harassment as defined by the EqA.

[152]To succeed with the claim the unwanted conduct must be related to a protected characteristic, in this case race. Whether conduct is related to a protected characteristic is a matter of fact.

[153]We considered whether being referred to as glamourous could be said to be related to race. Having done so we do not find that is the case. There is nothing inherent in being described as glamourous that is related to race. The claimant also did not provide any coherent explanation about why she viewed this comment as being related to her race.

[154]In terms of the context, we also heard from witnesses that the claimant took care of her appearance and dressed well at work. Ms Jacobs had previously complemented the claimant’s dress sense, which the claimant acknowledged. We cannot see how the claimant would understand the comment as having any racial connotation, rather than being a misjudged comment on the claimant’s personal style. Therefore, the claim for harassment fails.

[155]In terms of the direct discrimination claim, we have already concluded that been introduced as glamourous in a professional context can be a detriment. It can be less favourable treatment compared to a more standard professional introduction.

[156]The issue we then had to determine is whether there was any evidence from which we could infer that the reason for that treatment may have been race. The first stage involves identifying an appropriate comparator. The claimant has not identified an actual comparator for this incident. A hypothetical comparator would be a woman who Ms Jacobs worked with who dressed and presented herself at work in a similar way to the claimant but was not black.

[157]In support of all her claims for direct discrimination the claimant drew our attention to what she said were multiple complaints by other black members of staff about Ms Jacobs. We found there had only been one formal complaint against Ms Jacobs, which was by Ms Bryan. There was some evidence that Ms Clark had informally raised concerns about working with Ms Jacobs when she left. There was no evidence that Ms James complained about Ms Jacobs.

[158]We did not accept that complaints by Ms Bryan and Ms Clarke about Ms Jacobs were facts from which we could infer that the ‘glamour’ comment made by Ms Jacobs was due to race. The complaints by Ms Jacobs and Ms Clarke related to being managed by Ms Jacobs and her management style. This is a different type of interaction than the one the claimant is complaining about in this claim, which was a misjudged comment.

[159]We also found that Ms Jacob’s explanation for the comment credible. Ms Jacobs was trying to introduce the claimant in a complementary way. This was not a discriminatory reason. It was a reaction to the fact that the claimant did dress well at work. The comment was a misplaced complement but that error was not due to the claimant’s race. Being spoken in a humiliating public manner on two occasions

[160]The claimant made two allegations of Ms Jacobs speaking to her in a humiliating manner. One was in December and following a meeting about the CDS Print and Design contract. The second was around the end of January 2020 and following a meeting about the Sensory Services contract.

[161]As a matter of fact, we have concluded that these two incidents did not happen as the claimant describes. We did not accept the claimant’s account of these events. We found Ms Jacobs’ evidence more persuasive. This was corroborated by the evidence of other witnesses who confirmed this is not how Ms Jacobs tended to act in the office and they never heard anyone shouting.

[162]The claimant has not proved on the balance of probabilities that the unwanted conduct she complains of happened. Therefore, the harassment claim fails. The direct discrimination claim also fails as she has not shown any less favourable treatment in this respect. Public criticism of her work and legal advice

[163]The claimant made two allegations of Ms Jacobs publicly criticising her work and legal advice. One relates to emails sent in the context of the CDS Print and Design contract. The complaint is based on emails sent in relation the Hawkswood Group contract. We were provided with the emails which the claimant says include this criticism.

[164]We first considered whether these emails amounted to harassment. They were unwanted conduct because the claimant was upset by what she perceived as public criticism. Having reviewed the emails in question we cannot see any basis for concluding any unwanted conduct was related to race. The emails are all about work matters and the provision of legal advice. The harassment claim fails because there is no basis for finding the unwanted conduct was related to any protected characteristic.

[165]In addition, although the claimant was upset by these emails, when looked at objectively we cannot see how they could be viewed as harassment. The emails are all professional in tone from to an employee from their manager. They provide legal advice and appropriate supervision. In evidence the claimant was critical of how Ms Jacobs communicated as a manager. She clearly felt that different language could be used. The differences in language and style the claimant indicated she would have preferred were trivial. For example, the claimant may have preferred that Ms Jacobs did not suggest she sought guidance in the future in an email that was copied into Kim Travis. However, there was nothing untoward in Ms Jacobs having done that.

[166]We then consider direct discrimination. For this claim the claimant did not identify an actual comparator so she relies on a hypothetical comparator. The claimant did not provide any evidence that suggested that Ms Jacobs would have communicated differently in the same situation with a team member of a different race. On the contrary, we heard evidence from other witnesses who were also managed by Ms Jacobs. They all reported that she managed people and communicated in the same way. The claimant’s argument that Ms Jacobs treated her less favourably in this respect is mere assertion. The direct discrimination claim fails. Intentionally disregarding work commitments

[167]As a matter of fact we have concluded this did not happen. Ms Jacobs was trying to rearrange a 1:1 meeting with the claimant. There had already been a meeting arranged but Ms Jacobs wanted to reschedule it so it took place sooner. Ms Jacobs was the claimant’s manager and she was entitled to try and arrange a meeting with the claimant when she had concerns about her wellbeing, which we accepted were genuine.

[168]The claimant asserted she had commitments which clashed with the rearranged meetings and that these were ignored by Ms Jacobs. This was not true. The claimant had merely blocked out time in her diary in order to manage her own time. There were no meetings with clients or other external commitments at any of the times when Ms Jacobs tried to arrange the meeting. The claimant has not proved that Ms Jacobs intentionally disregarded her work commitments. On the contrary, we find that the claimant repeatedly refused her manager’s reasonable requests to attend a meeting.

[169]For completeness, in respect of the harassment claim, given that the claimant subjectively still found this to be unwanted conduct, we find the following: 169.1. There is no evidence on which we could conclude the meeting requests were related to race. 169.2. Looking at this conduct objectively, it does not meet the definition of harassment. The meeting requests were reasonable management instructions made in the context of Ms Jacobs being concerned about the claimant’s work load and working pattern. The claimant reacted to them in an unreasonable way.

[170]We also find that this was not less unfavourable treatment of the claimant. On the contrary, Ms Jacobs was trying to arrange a meeting due to concerns about the claimant’s wellbeing. Often this would be seen as a positive act, trying to provide an employee with support. There is also no evidence that Ms Jacobs would have acted differently with any other employee. The claimant’s claim that she was treated less favourably in this respect and that was due to her race is just an assertion unsupported by any evidence. Not investigating the claimant’s complaint on 14 July to Jeremy Walling

[171]We have found as a matter of fact this email was not a complaint that triggered any automatic obligation on Mr Walling to investigate. It was an informal complaint and there is nothing within the email that indicates the claimant wanted any investigation to be undertaken or that she expected any specific type of response.

[172]Mr Walling did not respond to this email. However, matters escalated rapidly over the next couple of days. Within 24 hours of the claimant sending the email Mr Walling had decided to terminate the claimant’s engagement in any event.

[173]In terms of the claims advanced by the claimant, we accept that the claimant may have found the lack of response unwanted. She may have been upset by this fact. In respect of the harassment claim we have concluded as follows; 173.1. We cannot see how any failure by Mr Walling to respond to the claimant could be viewed as conduct that is related to race. There are no facts to support such a conclusion. 173.2. When looking at the conduct objectively, it does not meet the definition of harassment. The claimant may have wanted a response from Mr Walling. The lack of an immediate response to just a single email is not conduct likely to create the proscribed effect.

[174]In terms of a direct discrimination claim, not responding to this type of email could be less favourable treatment if the claimant could show that Mr Walling would have responded more promptly or differently to a similar email from a non-black staff member.

[175]The claimant argued that there was a pattern of the first respondent, and particularly Mr Walling, not responding to complaints by black staff members about Ms Jacobs. In support of this the claimant relied on complaints that she said were made by other black members of staff that were not dealt with.

[176]In terms of the evidence, it is undisputed that Ms Bryan raised a grievance about Ms Jacobs and Mr Walling did not deal with that promptly. The claimant suggested that there were other complaints by black staff. We found there were no other formal complaints, though Lorraine Clark may have complained informally when she left.

[177]We have considered whether these two complaints show that there is a pattern of Mr Walling not dealing with complaints by black members of staff and, if so, whether we can infer from this whether the reason Mr Walling did respond to the claimant’s email raising complaints because of her race. We have reached the following conclusions.

[178]We do not consider that the delay in dealing with Ms Bryan’s grievance shows any pattern. Although there was a significant delay the circumstances were very different. Ms Bryan was a permanent employee and she raised a grievance that was dealt with under the first respondent’s policies, albeit not as promptly as it should have been. We do not consider that it is possible to conclude from this single instance that there was a pattern of not dealing with complaints.

[179]The situation with Ms Clarke is more similar to the claimant’s in that she was an agency worker who raised concerns when she left. The claimant raised her concerns before her assignment was terminated, but there is a similarity in that the concerns were informal and Mr Walling did not treat them as complaints. However, while this does show a pattern of not responding to informal complaints, we do not consider that we can infer from this that the reason Mr Walling did not respond to the claimant may have been race. The more pertinent shared characteristic of both the claimant and Ms Clarke was they were agency workers. There was no other evidence of facts from which we can infer that the claimant’s and Ms Clarke’s race may have been a factor.

[180]In addition to this, we have already found that matters were developing fast at that time. The following day the claimant’s engagement was terminated. The more obvious reason why Mr Walling did not respond to that email is that there was no need for him to do so, given that the claimant was an agency worker who was not going to work for the respondent any more.

[181]On this basis the direct race discrimination claim fails. Termination

[182]The claimant’s engagement was terminated and the claimant has said this is harassment. While this may be unwanted conduct there is no evidence that it was related to the claimant’s race. We also do not see how it could be viewed that way. We also do not consider that looked at objectively it meets the definition of harassment.

[183]If this claim were to succeed it would need to be one of direct discrimination. For this claim the claimant has named actual comparators: - Alexandra Jacobs; - Tuba Kara; - Monica Celorico; - Ernesto Meskauskaite; - Jane Davidson.

[184]The first four we conclude are not appropriate comparators as their circumstances are not sufficiently similar. Ms Jacobs was an agency worker but in a more senior role. The information we had about the next three was limited but they were not in the same role as the claimant. The only appropriate comparator is Jane Davidson. She was also an agency worker and a contract lawyer in the same team and she is white.

[185]We found as a matter of fact that Ms Jacobs and Mr Walling had a conversation some time before the claimant’s engagement was terminated about reducing the number of agency workers within the contracts team. The claimant was one at risk as was Ms Davidson. In terminating the claimant’s engagement she was treated less favourably than Ms Davidson. The question for us to determine was whether there is evidence from which we can conclude that the claimant was selected due to race.

[186]As clarified in Madarassey, a different in race is not sufficient to shift the burden of proof. There must be something more. In this case we have concluded that there is no such evidence. At the time there were three agency workers who were contract lawyers. The third one was Shirley James, who was the same race as the claimant. While it is true that the claimant was treated less favourably than Ms Davidson it was also true that she was treated less favourably than Ms James. There is no other evidence that the claimant provided from which we could infer that it was the claimant’s race that may have been why her engagement was terminated.

[187]In addition to this, we have also concluded that this is a case where the facts are such that it is clear the respondent’s reasons for terminating the claimant’s engagement were wholly unrelated to race. The documented events of early July 2020 show that there was a rapid deterioration in the working relationship between the claimant and Ms Jacobs. Over the course of just a few days the situation had escalated and reached a point that it was no longer tenable for the claimant and Ms Jacobs to continue working together. This was something the claimant made clear in her own correspondence. The claimant had also unilaterally announced that she would be making changes to her working arrangements.

[188]It is obvious from the evidence we heard that the claimant’s contract because of these events. This was in the context of a decision that had already been made to reduce the number of locum lawyers in the department. These reasons are wholly unrelated to the claimant’s race.

[189]As part of this claim the claimant also said she was not provided with a reason why her engagement was being terminated. As a matter of fact we have found the claimant was given a reason. The claimant’s own email from the day indicate she had been told that there was reduced funding. This may not have been the complete explanation it was still a reason and it was part of the underlying rationale. Mr Walling also provided the claimant with a more comprehensive explanation following her appeal. The claimant’s claims based on a lack of reason fails because the claimant has not proved that the facts on which she relies. One week’s notice

[190]The claimant was given one week’s notice. This is what she was entitled to under her contract. The claimant was an agency worker. Had she been an employee her statutory entitlement would also just have been one week. The claimant’s complaint is that she was not given a longer period of notice. The claimant’s argument was essentially that even though the contractual notice was a week the respondent exercised its discretion and gave other agency workers longer notice. In her case the respondent only gave her the contractual notice and she says this was either harassment or direct discrimination.

[191]Before considering the individual claims, we will set out the relevant factual conclusions on this issue. The claimant asserted that other agency workers were given more notice. We also heard from Mr Walling on this point. We accepted his evidence that the first respondent usually gave agency workers just one week’s notice. However sometimes longer notice would be given. This would depend on the circumstances, such as the needs of the department at the time. There was no general practice to give longer than contractual notice to agency worker and there would need to be some form practical or business reason why the respondent would want to give longer notice.

[192]In terms of the harassment claim, we can see that the claimant was upset by what she perceived to be the sudden termination of her engagement. However, it was a standard management decision to give the clamant notice in line with her contractual entitlement. Looked at objectively we cannot see how this could be viewed as having the proscribed effect without some additional context. There was no such additional context in the claimant’s case.

[193]The claimant also said that giving her just one week’s notice was direct discrimination on the grounds of race. To succeed with this claim she will need to show that she was treated less favourably than any actual or hypothetical comparator. For this claim the claimant named Shirley James and Sheila Teli as comparators.

[194]We do not consider Shirley James would be an appropriate comparator. Ms James was also an agency lawyer in the same role as the claimant. The claimant has said that Ms James was told she would be given more than a week’s notice. The claimant did not prove on the balance of probabilities that Ms James was told this. Further, Ms James shared the same protected characteristic as the claimant and did not have her contract terminated, so she was not actually given longer notice.

[195]We were not provided with sufficient evidence by the claimant to conclude if Sheila Teli’s role or circumstances meant that she could be a comparator. Neither were we provided with evidence that showed she had in fact been given more notice than the claimant

[196]We were also not satisfied that the claimant has shown that a hypothetical nonblack agency worker may have been given longer notice in the same circumstances in any event. The relevant circumstances are not just being an agency worker whose assignment was terminated. The relevant circumstances include the situation which lead to the claimant’s contract being terminated. One of the reasons the first respondent terminated the claimant’s assignment was the breakdown in her working relationship with her line manager, which was mutual. In these circumstances there would be no practical benefit to the respondent to give longer notice.

[197]On this basis both the harassment and direct discrimination claim about the length of notice given fail. Lack of appeal

[198]The claimant was not given a right of appeal against the decision to terminate her assignment. She submitted an appeal nonetheless. Although there was no formal appeal process Mr Walling did in fact acknowledge her appeal and he reviewed the decision. While this may not have been a formal appeal there was in fact some form of appeal process.

[199]The reason why the claimant was not offered a formal appeal was because she was an agency worker rather than an employee of the first respondent. She had no right of appeal under any policy. Neither was there any common practice to allow agency workers to appeal.

[200]The claimant has said the lack of appeal is harassment. This lack of appeal may have been unwanted by the claimant. However, looked at objectively it does not have the proscribed effect. It was a standard management decision in respect to the termination of an engagement of an agency worker. As a matter of fact it was wholly unrelated to the claimant’s race, being solely due to her status as an agency worker.

[201]In terms of a direct discrimination claim, the claimant has cited the same 5 comparators as with the termination of her engagement. An appropriate comparator would be a non-black agency worker whose engagement was terminated and who was then allowed to appeal. The claimant did not provide any evidence of agency workers who had been allowed an appeal. We note that Alexandra Jacobs and Jane Davidson, who are the two comparators we know most about, did not have their contracts terminated. There was no evidence that any other agency workers were able to appeal. We also did not accept that the first respondent would have allowed an appeal for a hypothetical comparator.

[202]We conclude that the claimant has not shown she was treated less favourably by being refused an appeal. She was treated the same as other agency workers. We also note that the first respondent potentially treated her more favourably than other agency workers due to the fact that Mr Walling did respond and review the decision.

[203]On this basis both the harassment and direct discrimination claims fail. Victimisation

[204]The claimant said that she did the following things which were protected acts: a) her email to Ms Jacobs of 13 July 2020 at 11:34 (re-sent at 11:51); b) her email to Jeremy Walling on 14 July 2020 at 07:54; c) her email of 15 July 2020 at 15:31 to Ms Jacobs; d) her email of 15 July 2020 at 15:33 sent to Sellick Partnership (formerly the third respondent and no longer a party to these proceedings); e) her email to the first respondent on 15 July 2020 16:59; f) her email of 16 July 2020 at 11:01 to Sellick Partnership; and g) the contents of her appeal dated 19th July 2020 sent to the first respondent attached in the email dated 20th July 2020.

[205]We found that the first 4 emails make no mention of discrimination, of race or any other protected characteristics. The complaints are quite general in nature. We concluded that there is no way of reading or interpreting these emails them as containing any type of complaint under the Equality Act 2010. They are not protected acts.

[206]The claimant first mentions race in email (e), sent to the first respondent on 15 July 2020 at 16.59. She does not clearly set out any complaints that she has been discriminated against. However, she does include a comment about how other staff have been treated and she notes those other staff members were all of African descent. Our conclusion is this is enough to suggest she was complaining there may have been race discrimination so this is a protected act.

[207]In the email to Sellick of 16 July 2020 (f) the claimant expressly says she has been in contact with ACAS and she will be brining a discrimination claim. This indicates the claimant will be doing something under the Equality Act 2010 so is a protected act.

[208]In her appeal dated 19 July 2020 (g) the claimant expressly complains of discrimination so we find this is a protected act.

[209]The claimant has complained of two detriments that she says is victimisation. The first is the termination of her contract. This decision ws made by Mr Walling early on 15 July 2020. It was then communicated to the claimant by 4pm on the same day by Sellick. We have found that the first protected act was the email the claimant sent to the first respondent at 16.59 on 15 July 2020. This was after the claimant had been notified of the termination of her engagement with the respondent. As it post-dated both the decision to terminate the engagement and the communication of that decision there can be no causal link between the protected act and the termination of the claimant’s contract. Therefore, this victimisation claim fails.

[210]The second detriment is the refusal to allow an appeal. The appeal itself is one of the communications that we have found was a protected act. The appeal was sent by the claimant after the other two emails which we have found were protected acts.

[211]As a matter of fact, the reason the claimant was not granted a right of appeal was the fact she was an agency worker. She had no right of appeal under the first respondent’s policies and no other general right of appeal. Her status as an agency worker was clearly the reason why she had no right of appeal, not the fact that she had done anything that was protected under the Equality Act 2010.

[212]There was no evidence to suggest that the reason the first respondent did not allow an appeal was because the claimant complained of discrimination. On the contrary, we have already concluded that while there was no right of appeal, due to the claimant’s status as an agency worker, Mr Walling did in fact review the decision and respond to her appeal.

[213]We conclude the lack of appeal was not due to any protected act but very simply because of the claimant’s status as an agency worker Time limits

[214]As none of the claimant’s claims succeed, we do not also need to consider the issue of jurisdiction. For completeness we have briefly made the following findings on this issue: 214.1. The ‘vanilla’ incident and ‘glamourous’ incident were individual incidents and not connected to anything else. There is no course of conduct. The last one occurred in December 2019 and the claimant did not start Early Conciliation until September 2020. Claims about these incidents would have been significantly out of time. There was no reason given by the claimant for why it would be just and equitable to extend time in respect of these isolated incidents. We cannot find any reason why it would have been just and equitable to extend time in respect of those claims. 214.2. The complaints about Ms Jacobs shouting and undermining the clamant are sufficiently similar in nature that they could be a course of conduct. The last incident was in April 2020 so these claims would also be out of time. Again, we were not satisfied that it would have been just and equitable to extend time in respect of these claims. 214.3. This means only claims about the events that lead up to the termination of the claimant’s contract and after would be in time. Liability of the Fourth Respondent

[215]As the claimant’s claims did not succeed it was not necessary for us to decide on any liability of the fourth respondent in respect of the actions of the second respondent.

[216]The evidence we heard showed that the fourth respondent’s role as employer of both the claimant and the second respondent was essentially just a formality. It was a practical arrangement put in place purely to facilitate payment for both the claimant and fourth respondent in respect of work they did for the first respondent. On a day to day basis the fourth respondent had no interaction with the second respondent or the claimant or any involvement in the work that either did.

[217]The second respondent did work for the first respondent. She was managed by Mr Walling and she managed others who worked for the first respondent. All the complaints by the claimant about the second respondent related to this working relationship. We conclude that nothing that the claimant said the second respondent did could be viewed as being done in the course of employment with the fourth respondent.

[218]On this basis, had we upheld any of the claimant’s claims about the actions of the second respondent we would not have found the fourth respondent liable.

[1]On 2 November 2020 the claimant brought claims in the Employment Tribunal for race discrimination against the respondents. Initially the claimant included claims against two additional named respondents, Sellick Partnership Limited (third respondent), and Danbro Employment Umbrella Ltd (fourth respondent).

[2]The claimant worked for the first respondent as an agency worker. She was engaged via the fourth respondent. The second respondent was her manager, who was also an agency worker engaged via the fourth respondent. The claims against the third respondent were struck out before the final hearing. The first respondent accepted liability for the actions of the fourth respondent. The claims against the fourth respondent continued because the claimant argued that the fourth respondent was liable for the actions of the second respondent, irrespective of the first respondent’s concession on that issue.

[3]There were four preliminary hearings before the final hearing. The list of issues was finalised after the fourth preliminary hearing held on 21 November 2022. The claimant made 10 allegations of fact which she alternatively argued were incidents of harassment related to race or direct discrimination on the grounds of race. She also made two allegations of victimisation.

[4]The final hearing was listed to last for 8 days. The length of the final hearing had been decided at one of the preliminary hearings. The original listing was shortened to 7 days, with an additional preliminary hearing held the day before. The hearing was held by video on 11, 12, 15, 16, 17, 18 and 19 May 2023. The hearing was adjourned part-heard as not all evidence had been heard by 19 May 2023. It resumed on 20 September 2023. The parties attended on 20, 21, 22 and 25 September 2023. Judgment was given orally on 2 October 2023. At the request of the claimant written reasons were provided.

[5]The claimant was unsuccessful with all of her claims and all of her claims were dismissed. The first and second respondents’ application for costs

[6]On 23 November 2023 the first and second respondents made an application that the Tribunal make a costs order against the claimant on three grounds. They said: 6.1. the claimant had acted vexatiously or unreasonably bringing or continuing with the proceedings; 6.2. the claimant acted unreasonably in the way that she conducted the proceedings; and 6.3. the claimant’s claims had no reasonable prospects of success.

[7]Initially the fourth respondent also made an application for its costs. The fourth respondent withdrew their application before the hearing.

[8]The costs hearing was heard by the same Tribunal panel. The first and second respondents and the claimant attended. The respondents provided a bundle and the claimant provided additional documents, including relating to her financial position. We heard submissions from the respondents and the claimant.

[9]The bundle of documents provided by the respondent included documents relating to preparation of the case and compliance with Tribunal directions. This included lengthy correspondence between the claimant and the other parties, which the respondent said related to the claimant’s conduct of the proceedings. The Law

[10]At the time of the respondents’ application and the hearing the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 still applied. Since the hearing, but before promulgation of this judgment, the Employment Tribunal Procedure Rules 2024 (“the 2024 Rules) have replaced the 2013 Regulations. The wording of the relevant provisions are in effect the same, so the substance of the law has not changed. In this judgment we refer to the 2024 Rules as that is the law that is in place now.

[11]Rule 74 of the 2024 Rules states: “(1) The Tribunal may make a costs order or a preparation time order (as appropriate) on its own initiative or on the application of a party or, in respect of a costs order under rule 73(1)(b), a witness who has attended or has been ordered to attend to give oral evidence at a hearing. (2) The Tribunal must consider making a costs order or a preparation time order where it considers that—(a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings, or part of it, or the way that the proceedings, or part of it, have been conducted,

(b) any claim, response or reply had no reasonable prospect of success, or

(c) a hearing has been postponed or adjourned on the application of a party made less than 7 days before the date on which that hearing begins.”

[12]Under Rule 76 of the 2024 Rules: “(1) A costs order may order the paying party to pay—(a) the receiving party a specified amount, not exceeding £20,000, in respect of the costs of the receiving party;

(b) the receiving party the whole or a specified part of the costs of the receiving party, with the amount to be paid being determined— (i) in England and Wales, by way of detailed assessment carried out either by a county court in accordance with the Civil Procedure Rules 1998, or by the Tribunal applying the same principles; (ii) in Scotland [….];

(d) [….]. (2) [ ….]. (3) A costs order under sub-paragraphs (b) to (d) of paragraph (1) may exceed £20,000.”

[13]The position within the Employment Tribunal is that an order for costs is the exception, rather than the rule (Yerrakalva v Barnsley Metropolitan Borough Council and anor

2012 ICR 420

, CA). The Tribunal can only make an order for costs in specified circumstances.

[14]There are three stages to Tribunal’s decision making process when faced with an application for a costs order. First the Tribunal must decide if one of the conditions allowing for costs to be awarded applies. It then must decide whether or not to exercise its discretion and make an order for costs. Finally, it must decide the amount of the award. (Millan v Capsticks Solicitors LLP & Others

UKEAT/0093/14/RN

[15]The first stage is to decide on whether one of the relevant thresholds within Rule 76 has been met. The caselaw provides the following guidance: 15.1. Unreasonable has its ordinary meaning and is not to be interpreted as something similar to vexatious. 15.2. Vexatious and abusive means “has little or no basis in law (or at least no discernible basis); that whatever the intention of the proceedings may be, its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant; and that it involves an abuse of the process of the court, meaning by that a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process”. (Attorney General v Barker

(2000) 1FLR 759

). 15.3. “Where the Tribunal is considering a costs application at the end of, or after, a trial, it has to decide whether the claims "had" no reasonable prospect of success, judged on the basis of the information that was known or reasonably available at the start, and considering how, at that earlier point, the prospects of success in a trial that was yet to take place would have looked. […]” (Radia v Jefferies International Ltd [2020] 2 WLUK 282).

[16]Having decided the threshold has been met, the Tribunal must exercise its discretion in deciding whether to make an award of costs. When doing this all relevant factors and circumstances should be taken into account: “The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case, and in doing so to identify the conduct, what was unreasonable about it and what effects it had.” (Barnsley Metropolitan Borough Council v Yerrakalva

[2012] ICR 420

)

[17]Whether or not a party represented is a relevant consideration. Justice requires that tribunals do not apply professional standards to lay people, who may be involved in legal proceedings for the only time in their life. The threshold tests may be the same whether a party is represented or not, but the application of those tests should take account of whether a litigant has been professionally represented or not (AQ Limited v Holden

[2012] IRLR 648

[18]Under Rule 82 Employment Tribunal Procedure Rules 2024 the Tribunal “may have regard to the paying party’s.. ability to pay”.

[19]If the means of a paying party in any costs award are to be taken into account, the Tribunal should set out its findings about ability to pay and say what impact this has had on the decision whether to award costs or an amount of costs. (Jilley v Birmingham & Solihull Mental Health NHS Trust

UKEAT/0584/06

). Decision – findings of fact, discussion and conclusions

[20]The structure of our decision on whether the threshold has been met is set out as follows: 20.1. The respondents have sought an order for costs on two grounds that relate to the underlying merits of the claimant’s claims. They have said she acted vexatiously or unreasonably in bringing and/or continuing the proceedings. They have also said that her claims had no reasonable prospects of success. We have first set out our conclusions on those grounds of the respondents’ application. 20.2. We have then set out our conclusions on whether the claimant acted unreasonably in the way she conducted the proceedings. 20.3. We go on to address the exercise of our discretion, if the threshold is met, and the amount. The merits of the claims – vexatious or unreasonable bringing the proceedings and/or no reasonable prospects of success

[21]This part of our decision should be read in conjunction with the Judgment dated 2 October 2023 and written reasons dated 23 February 2024 which contain the Tribunal’s findings of fact and conclusions on the various claims. We do not repeat those findings within this decision.

[22]A claimant will not have acted unreasonably or vexatiously just because their claims do not succeed. Neither will it necessarily be the case that if a claim is unsuccessful that it had no reasonable prospects of success. It is necessary to look at the individual claims and apply the relevant tests.

[23]It is often the case that claimants pursue multiple claims, based on a number of individual allegations of discrimination. The position on whether it was reasonable for the claimant to bring each of those claims may vary. Sometimes it may be the case that each claim needs to be treated separately. On other occasions it may be that there is aspect of the case as a whole that makes it unreasonable for the claimant to have pursued all of their claims.

[24]The trigger for the claimant bringing her claim was the respondent’s decision to terminate her assignment as a locum. The claimant said this was direct discrimination, harassment and victimisation. The claimant also pursued claims about additional allegations relating to events before the termination of her assignment and events related to the termination. Broadly her case was as follows: 24.1. The complaints about events before the termination of her assignment all related to the actions of her manager, the second respondent. 24.2. The claimant said she made a complaint about her manager shortly before her assignment was terminated and this was not investigated. 24.3. Her assignment was terminated and she complained about this decision, that the first respondent did not give her a reason for the termination, the first respondent only gave her one week’s notice and she was not given a right of appeal.

[25]To succeed with any claim for direct discrimination the claimant needed to prove some facts from which we could properly infer that the treatment she said was less favourable may have been due to race. If there was a complete lack of evidence on this, or no possibility of establishing such facts, then all the claims for direct discrimination would be bound to fail. Similarly, to succeed with claims for harassment the conduct must be related to race. Whether the conduct is related to race is a matter of fact, based on the evidence. It would be unreasonable to pursue claims for harassment if there is a complete lack of evidence indicating that the conduct that was complained of related to race.

[26]In the claimant’s case she sought to prove her case by showing that there was a pattern of poor treatment of black lawyers who worked in the same department as her. This rested on two lines of argument. Firstly, she argued that other black lawyers also complained about how the second respondent treated them. She also tried to show that there was a pattern of the first respondent not dealing with complaints raised by black employees. If the claimant had been able to prove that there was such a pattern of conduct by the first and second respondent it may have been sufficient for us to draw inferences of direct discrimination.

[27]Ultimately the claimant was not successful in her attempt to show such a pattern of complaints by other black lawyers or failure to deal with those complaints by the first respondent. However, there was some basis for the claimant making these arguments. Althea Bryan did complain about the second respondent and the first respondent did not deal with Ms Bryan’s complaint promptly. There was some indication that Lorraine Clark may have informally said she could not work with the second respondent, but no evidence she made a complaint.

[28]On this basis we have concluded that it was not wholly unreasonable for the claimant to bring any claims for race discrimination. Neither have we concluded that the claimant’s claims for direct discrimination and harassment could be said to have no reasonable prospects of success as a whole.

[29]We have then looked at each individual claim that the claimant brought and assessed whether it was unreasonable for the claimant to pursue those because they had no reasonable prospects of success.

[30]The individual claims are referred to as in the original written reasons by reference to the underlying factual allegations, which are: 30.1. Vanilla comment; 30.2. Glamour comment; 30.3. Being spoken to in a humiliating and public manner on two occasions; 30.4. Public criticism of work and legal advice; 30.5. Intentionally disregarding the claimant’s work commitments; 30.6. Not investigating the claimant’s complaint to Jeremy Walling; 30.7. Termination of assignment; 30.8. One week’s notice; and 30.9. Lack of appeal. Vanilla comment

[31]This claim was based on a dispute of fact about who said what in a meeting when the claimant and second respondent first worked together. We did not accept the claimant’s account of events and found that it was her who had used this term.

[32]The claimant argued that she had no idea what this phrase referred to and tried to say it had racial connotations. We rejected the claimant’s account of events outright. We concluded that she had made the comment and the emails from the time indicated she understood its meaning in this context.

[33]The alleged incident occurred several months before the next alleged incident. The suggestion that it was related to race was unfounded. We concluded it was probably an attempt to create an incident that could be painted as race related to support the remainder of the claimant’s case, rather than a genuine complaint.

[34]Based on these findings we have concluded that it was unreasonable for the claimant to pursue this claim. Glamour comment

[35]We did not consider it unreasonable for the claimant to pursue this claim or that it had no reasonable prospects of success. It was accepted that the second respondent did make a comment that in some way referred to the claimant as being glamourous. The claimant was also upset about this at the time and raised concerns shortly after with both the second respondent and another employee. We also accepted that commenting about the claimant’s appearance could amount to harassment. The claim failed because we did not accept that it was related to race or that there was any evidence to support a claim that it was direct race discrimination. Being spoken to in a humiliating and public manner on two occasions

[36]These claims were based on two alleged interactions between the claimant and the second respondent. There was no documentary evidence relied on. The case turned on whether we accepted the claimant’s evidence of the alleged incidents or the evidence of the second respondent. The claimant did not prove the incidents occurred as she alleged.

[37]We have not concluded that these claims could be said to have no reasonable prospects of success. There was a dispute about the facts and the claims turned on the witness evidence we heard. It was possible that we could have accepted the claimant’s account of events. Public criticism of work and legal advice

[38]These claims were based on what the claimant said was public criticism by the second respondent in various emails. They related to several different pieces of work and projects. The alleged criticism was public because other individuals were copied into the emails.

[39]On these claims we have concluded it was unreasonable for the claimant to pursue them and they had no reasonable prospects of success. The evidence was all documentary, being the various emails. As these claims were based purely on documentary evidence the success of the claims did not depend on hearing witness evidence. It would be possible to review the documents and consider whether the contents of the emails could be viewed as harassment or detrimental in any other way.

[40]We were provided with all the emails. There was nothing within them that could be viewed as public criticism. They were unremarkable professional emails from a supervisor to a person they managed. Looked at objectively they could not amount to harassment and they were not detrimental in any way.

[41]There was no basis for the claimant to pursue claims she had been publicly criticised based on the emails. These claims had no reasonable prospects of success and it was unreasonable for the claimant to pursue these claims. Intentionally disregarding work commitments

[42]This claim was based on the events in early 2020 when the second respondent sought to arrange a meeting with the claimant. The claimant said that she had commitments in the diary and the second respondent repeatedly tried to arrange a meeting at times that clashed with her commitments.

[43]We concluded as a matter of fact this was not the case. The second respondent sought to arrange a meeting with the claimant, who she managed. The claimant had no prior commitments, she had merely blocked out time in her own diary in order to manage her own time. The second respondent sought to accommodate the claimant’s priorities. This was all apparent from the documentary evidence.

[44]The claimant’s assertions were contrary to the documentary evidence. There was no need to hear any witness evidence to understand what occurred. There was no basis for the claimant suggesting that the attempts by the second respondent to arrange a meeting was either harassment or direct discrimination. This claim had no reasonable prospects of success and it was unreasonable for the claimant to pursue this claim. Not investigating the claimant’s complaint to Jeremy Walling

[45]We did not accept that the claimant’s email to Mr Walling was a complaint that would necessarily trigger an obligation to investigate. However, Mr Walling did not respond to the email.

Conclusion

[46]We have looked at this claim in the context of the narrative the claimant tried to establish that the respondent regularly failed to deal with the complaints of black members of staff as part of her broader direct discrimination claims. In this light we do not accept that the claim had no reasonable prospects of success. It is possible that the claimant may have been able to show that Mr Walling’s failure to respond to her email was less favourable treatment. With other evidence to support her argument about a pattern of behaviour she may have been able to shift the burden of proof. On this basis, we do not find it unreasonable for the claimant to have pursued this claim. Termination of assignment

Background

[47]We concluded it was not unreasonable for the claimant to bring a claim about the termination of her assignment with the first respondent. The termination of an assignment is clearly detrimental and a common trigger for a claim. The claimant’s assignment was terminated following the breakdown in her relationship with her manager, the second respondent.

[48]The claimant challenged the reason for the termination, arguing that it was due to race. As noted above, the claimant tried to show that there was a pattern of poor treatment of other black lawyers in the department by the second respondent. Had she succeeded with this then it is possible the burden of proof may have shifted. The findings of fact we made did not support the claimant’s position. However, we cannot conclude that it was clear the claim had no reasonable prospects of success or it was unreasonable or vexatious for the claimant to pursue this specific claim. One week’s notice and lack of appeal

[49]The claimant was an agency worker. As an agency worker she was only entitled to one week’s notice. She also had no right of appeal because she was an agency worker, not an employee.

[50]We concluded there was no basis for either of these claims. It was selfevident that these decisions were taken due to the claimant’s employment status. The claims were based on a fundamental misunderstanding of the relationship between the claimant and the first respondent and the obligations the first respondent had to agency workers.

[51]A proper appreciation of the claimant’s employment status would have made it clear that these claims had no reasonable prospects of success and, as such, it was unreasonable for the claimant to pursue these claims. Summary of conclusions

[52]We have concluded that the majority of the claims the claimant brought had no reasonable prospects of success and this should have been clear from a proper appreciation of the claimant’s position as an agency worker or the documentary evidence.

[53]There were four claims where the claimant had an arguable case (glamour comment, being spoken to in a humiliating manner, failure to respond to complaint and termination of employment). It was not reasonable for the claimant to pursue the remainder of the claims.

[54]The consequence of this is the threshold for making an award of costs on this ground has been met. Unreasonable conduct in the way the proceedings were conducted

[55]The respondents have said that the claimant’s conduct during the proceedings was unreasonable in respect of the following: 55.1. her conduct when seeking to agree the list of issues; 55.2. her conduct during the disclosure process; and 55.3. her conduct in failing to agree a bundle of documents for use at the hearing.

[56]Some issues that arose during the course of the case were apparent from the records of the various preliminary hearings and other judicial directions that were made. During the liability hearing we were able to directly observe some of the consequences of the claimant’s failure to agree a single bundle. In the bundle prepared for this costs hearing the respondent provided copies of correspondence between the parties that showed other aspects of the disputes between the parties in preparing the case, including the claimant’s conduct.

[57]From these we have made the following findings of some of what occurred and how the claimant conducted proceedings: 57.1. The claim was submitted on 2 November 2020. On 11 December 2020 the Tribunal notified the parties a first preliminary hearing would be held on 1 April 2021. 57.2. On 1 January 2021 the claimant prepared a lengthy document which she said was responding to the various respondents’ cases. This was 65 pages long and included extracts from documents embedded into the text, e.g. emails. At this point no directions had been made by the Tribunal. The case was at an early stage. This document served no practical purpose in advancing the case. 57.3. On 3 February 2021 orders were sent to the parties. The case was listed for a 3 day hearing in June 2022. Standard directions for disclosure, preparation of the bundle and witness statements were made. Disclosure was not due until 24 May 2021, after the preliminary hearing. The parties were directed to agree a schedule of issues and send it to the Tribunal by 29 March 2021. 57.4. On 19 February 2021 the claimant sent a request for documents and a list of questions to the respondents. This request was lengthy and the categories of documents sought were wide ranging. This request pre-dated by several months the deadline for disclosure of documents. 57.5. The first preliminary hearing was held on 1 April 2021. At that hearing the Judge noted that lengthy correspondence already, particularly from the claimant. The list of issues was not decided at that hearing. An open preliminary hearing was held on 4 November 2021 to determine applications to remove the second, third and fourth respondents from the case or strike out the claims against them. 57.6. A third preliminary hearing was held on 4 April 2022. This was to resolve disputes between the parties on case management issues. At this point the list of issues had not been agreed. The claimant had also made further applications for specific disclosure, even though standard disclosure had still not been completed at this point. Directions were made to progress the completion of the list of issues and address the matters raised by the claimant about disclosure. 57.7. The first and second respondent sent the claimant an updated draft list of issues on 21 April 2022, as directed. This was a concise document (5 pages) setting out a summary of the specific factual allegations that formed the basis of the claimant’s various claims. 57.8. The claimant was required to provide her comments by 13 May 2022. Clear directions were given by the Judge at the preliminary hearing about what the claimant should do when responding. On 10 May 2022 the claimant sent the respondents her amended list of issues and amendment application. This was lengthy, running to almost 20 pages seeking to both add information and amend the claim, and included significant unnecessary detail. The list of issues could not be agreed at that point. 57.9. The claimant also continued to seek additional documents from the respondent. On 7 August 2022 the claimant sent a formal request for additional disclosure. Again, this was lengthy running to over 20 pages. It included wide ranging requests for information about documents already disclosed and redactions that had been made, requests for additional documents and also answers to various questions by the claimant. 57.10. There were disputes about redactions that were made to some documents. On 16 September 2022 the first respondent sent the claimant supplemental disclosure and updated original disclosure with the redactions updated. The claimant objected to this as the documents were not fully unredacted. She responded saying: “the claimant does not accept any new disclosure of today. This will be totally ignored and deleted from my system. The hardcopy will be discarded.” She then wrote the following day to say that the hardcopy of documents had been destroyed. 57.11. A further preliminary hearing was held on 21 November 2022 in order to deal with the ongoing disputes about disclosure and other case management. The updated list of issues was also reviewed. Directions were given to progress the preparation of the bundle, including disputes about redactions and the inclusion of additional documents the claimant said were relevant. This required the parties to provide further written submissions so remaining disputes could be determined by a Judge. 57.12. On 20 December 2022 Employment Judge Gardiner sent the parties his decisions and made various other orders. The claimant’s request for disclosure was refused but the first respondent was ordered to remove some, but not all, of the redactions the claimant objected to. 57.13. In January 2023 the first respondent provided a draft bundle to the claimant. There followed lengthy correspondence between the parties about the bundle, both the contents and the format. The claimant would not agree the bundle with the respondents. Her position was there needed to be judicial direction on the format of the bundle and she did not agree that there should be a single bundle. The first respondent explained to the claimant that the issue of the contents of the bundle had already been addressed by Employment Judge Gardiner. They also provided the Presidential Guidance on Case Management and directed the claimant to the relevant parts. 57.14. The claimant continued to dispute the content and format of the bundle. She disagreed with it being in chronological order, as is standard. She also maintained there should be three separate bundles. She insisted that there should be one bundle for the first and second respondent, one for the fourth respondent and one for her. A significant amount of correspondence was generated on this issue, both between the parties and with the Tribunal. Ultimately Employment Judge Gardiner made the following directions dated 7 March 2023: - There must be a single joint bundle. - It must be in a standard format with the documents in chronological order. - If there was any dispute about relevance the document should be included. - If any dispute could not be resolved then a party could produce a short supplementary bundle containing only those documents which the other parties did not agree to include in the main bundle. 57.15. On 17 March 2023 the first respondent sent the other parties an updated paginated bundle. They asked that if any documents were missing they were provided pdf copies so they could be added. This did not resolve matters and the claimant continued to send lengthy correspondence to both the respondents and the Tribunal. The claimant also prepared her own alternative version of the bundle running to over 3000 pages. 57.16. At the final hearing the respondents provided a bundle running to over 5000 pages. The claimant also provided her own bundle of over 3000 pages. In her witness statement, which was lengthy, the claimant referred to documents within her own bundle and also did so during her cross examination of the respondent witnesses. Having to refer to two separate bundles over complicated matters and slowed progress of the hearing.

[58]The above is not a comprehensive account of all that occurred but the key points we were able to ascertain from the evidence provided for the costs hearing. From this we have concluded the following: 58.1. At each stage of the case the claimant acted in a way that overcomplicated the task at hand. She repeatedly sent lengthy correspondence to the respondents and the Tribunal which had to be responded to by the respondents. Often the correspondence, which frequently contained applications, was unclear or repetitive and did little, if anything, to progress the preparation of the case. 58.2. Much of the time the claimant did not act in a cooperative manner in accordance with the Overriding Objective. At most stages she would challenge the respondents rather than try and reach agreement. At times her conduct verged on being obstructive, e.g. when she rejected the respondents’ additional disclosure and destroyed copies of the hard copies that had been sent to her. 58.3. This was particularly notable with the process of preparation of the bundle, with the claimant ultimately seeking to use a completely separate bundle. The preparation of the bundle should be relatively straightforward. All that is required is compiling the documents both parties are relying on into a single file set out in a logical structure, usually chronological. The claimant sought to impose a completely different approach for no discernable reason and refused to cooperate with the respondents. 58.4. These difficulties persisted throughout the progress of the case. Significantly higher levels of judicial intervention were required than would usually be expected on what should be routine aspects of case preparation. There were two additional preliminary hearings in April 2022 and November 2022 to resolve case management issues.

[59]Based on these findings we concluded that the manner in which the claimant conducted the case was unreasonable and of the threshold for making an award of costs on this ground has been met. Exercise of discretion – the decision on whether to make an order for costs

[60]We have concluded that the threshold has been met both in terms of the claims that were pursued and the claimant’s conduct during the case. We have then considered whether or not to exercise our discretion to make an order for costs.

[61]In doing this we have first taken into account that in the Employment Triubnal costs are the exception, rather than the rule. It is not automatic that costs are awarded, even if the threshold has met. In making our decision on whether or not to make an award for costs we have taken into account all the circumstances relevant in this case. The factors we have considered are particularly relevant in this case include the following: 61.1. The impact of the claimant’s conduct. 61.2. The warnings given to the claimant by the respondent and Tribunal during the case. 61.3. The claimant’s status as a litigant in person who is a qualified barrister. 61.4. The claimant’s ability to pay.

[62]One of the key findings we have made above is that the claimant’s conduct in the way she conducted the case was unreasonable. We have set before out at some length what that entailed.

[63]The nature of the claimant’s conduct means that it was inevitable that the respondents would incur additional costs. The claimant frequently sent very lengthy applications that would have to be read carefully and responded to. What should be straightforward tasks, such as agreeing the bundle, became overcomplicated involving excessive correspondence, because the claimant did not act in a cooperative manner. Dealing with all the correspondence and applications would take time, and caused the respondents to incur additional unnecessary costs. There were also multiple preliminary hearings. Had the claimant acted more cooperatively, particularly in relation to agreeing the list of issues and disclosure, at least one of those could have been avoided.

[64]We also concluded that the claimant included claims that had no reasonable prospects of success and it was unreasonable for her to pursue them. This significantly widened the scope of the case and hence the amount of work that had to be undertaken by the respondents. Additional documentary evidence would have to be located and reviewed. The first and second respondents called 8 witnesses in total. Had the case been narrower in scope it is likely that there would be fewer witnesses, and the evidence of the remaining witnesses would have been shorter. In turn the hearing would have been shorter.

[65]The respondents sent the claimant a without prejudice costs warning letter on 11 March 2021. This was early in proceedings and we have not attached great weight to this as a result. However, the respondents did expressly flag up at the time aspects of the claimant’s conduct that was unreasonable. This included the unnecessary document the claimant provided in response to the ET3 and the premature and lengthy request for disclosure.

[66]The respondent did not send any further without prejudice correspondence that we were aware of. However, in open correspondence, when dealing with other case management matters, the respondents did set out that they considered the claimant’s conduct unreasonable. For example, in a lengthy letter to the Tribunal dated 27 May 2022 dealing with the list of issues and amendment application the respondents conclude by noting that they view the claimant’s conduct as unreasonable and that they are incurring costs as a result. Similar points were made in other correspondence during the course of the case.

[67]The claimant was also warned of costs implications of not cooperating by Employment Judge Gardiner in relation to the preparation of the bundle. In his order dated 7 March 2023 he gives a warning to both parties that costs can be awarded if there was a lack of cooperation.

[68]We have concluded that the claimant’s conduct did lead to the respondents incurring additional unnecessary costs in defending the case. The claimant was warned of this from the outset but continued to act in a similar manner. This culminated in the complete breakdown in cooperation over the preparation of the bundle.

[69]We turn now to the claimant’s status, which is slightly unusual. The claimant was a litigant in person, and we acknowledge that fact. However, the claimant is also a qualified barrister and she had worked for the respondent in a legal capacity. During the time she was working for the respondent she was still practicing as a barrister on the days she did not work for the respondent.

[70]The claimant did not practice employment law, and that is acknowledged. However, as a qualified barrister she is not in the same position as most litigants in person. Her status as a qualified barrister is of particular relevance to her conduct during proceedings. She would be expected to be familiar with procedural rules and be able to understand and comply with Judicial directions. She is also expected to understand the Overriding Objective and the requirement on the parties to cooperate.

[71]In terms of the claims themselves, the claimant may not have immediately been familiar with the relevant law, but she could be expected to either research it and gain sufficient understanding or seek advice. She could also be expected to exercise some level of judgment and limit the scope of the claims she pursued to those which were properly arguable.

[72]The warnings given to the claimant about her conduct are of particular relevance in this context. She could be expected to engage with what was being said to her and consider her position and adjust her conduct accordingly. She did not do this and instead she continued to pursue the case in an unreasonable manner.

[73]Finally we turn to the claimant’s means. The claimant provided us with some evidence about her financial position and expanded on this during the hearing. The claimant has not worked as a barrister since her engagement with the respondent ended. She also has not worked in any other capacity. This is due to ill-health, which she provided some evidence of. The claimant explained she did try to start a business but it was not profitable.

[74]The claimant owns a house. The position with the property was not fully clear. In her response to the respondents’ costs application she said she was in the process of selling this due to her financial position, in part because she had to take out various loans. By the time of the costs hearing this situation had changed and she was renting out her house. She also explained she had borrowed money from family members over the years.

[75]The claimant’s current financial position is relatively precarious, with no regular income and a relatively high level of debt. However, we have noted that the claimant has had access to funds from her support network. She does still own her house, albeit that it is mortgaged. She also is a qualified professional who has been able to earn a high income as a barrister in the past. She referred to this regularly throughout the case and it was detailed within her schedule of loss. Although the claimant has not been able to work in recent years there is no evidence suggesting that she will not be able to recommence work as a barrister in the future. The claimant’s current financial position is not entrenched or permanent and one would hope it will improve in the future.

[76]Taking into account the above factors we have decided to exercise our discretion and make an order for costs. Amount of costs order

[77]The respondents have sought an order that the costs to be paid are determined by detailed assessment. The claimant asked that if we decided to make an order that the costs are limited and determined by summary

[78]In support of their position, the respondents provided a schedule of their total costs in defending the claims. Including counsel fees these were £146,167.01.

[79]The award for costs would not be for all those incurred by the respondent. We did not find that it was unreasonable for the claimant to pursue the case as a whole. There were aspects of the claim which it was not unreasonable for the claimant to pursue. These would still need to be defended and the respondent would have incurred costs.

[80]The level of the costs awarded should reflect the additional costs the respondent incurred for the following reasons: 80.1. the work involved in defending the claims which had no reasonable prospects of success, as set out above; and 80.2. the additional costs incurred as a result of the claimant’s unreasonable conduct in the way she pursued the case, as set out above.

[81]We considered whether to order summary assessment, as proposed by the claimant. This would have the advantage of bringing finality to proceedings, which have been ongoing since 2020. This could be of benefit to both parties. However, an award for costs need to compensate the respondents for the additional costs that have been incurred due to the claimant’s unreasonable conduct. We concluded that capping the award at £20,000 would not adequately the respondents, so this approach would not be appropriate.

[82]We reached this conclusion based on the information we had regarding the costs incurred by the respondent. The total costs of the respondents was very high. Counsel fees alone for the final hearing equated to £35,500 and the total fees for the solicitors was £97,958.00. Other than the counsel fees, these were not broken down in any detail. It is likely that a significant proportion would have been incurred in any event had the claim been more limited in scope. Taking into account the extended length of the final hearing, the additional preliminary hearing and the volume of lengthy additional correspondence and applications the respondents had to deal with we concluded that the costs attributable to the claimant’s conduct would substantially exceed the cap of £20,000.

[83]For these reasons we make an order that the claimant pay the respondents’ costs as set out in paragraph 80 above. These will be the subject of a detailed