Mrs J Corporal v East and North Hertfordshire NHS Trust and Others: 3301414/2021 and Others

EMPLOYMENT TRIBUNALS

Case No 3301414/2021

Between

Mrs J CorporalClaimant

East and North Hertfordshire NHS Trust and OthersRespondent

Before

Employment Judge K J Palmer

Members

Ms S Lawrence-Doig and Mr A Hayes

In person for claimant

Miss C Jennings (instructed by Counsel) for respondent

Date 10 January 2023

JUDGMENT

It is the unanimous judgment of this Tribunal that the Claimant’s claims in direct race discrimination and direct religious discrimination against all of the Respondents fail and are dismissed.

REASONS

[1]This matter came before us listed for a 10 day Full Merits Hearing to be conducted by Cloud Video Platform at the Bury St Edmunds Employment Tribunal starting on 31 October 2022. Sadly, only eight and a half days were available to hear the matter. We were able to complete the evidence and retire to deliberate the outcome and to deliver a reserved judgment. The History of the Matter

[2]The Claimant issued variously three claims before this Tribunal. The first under claim number: 3301414/2021 was presented to the Tribunal on 21 February 2021. The second under claim number: 3306597/2021 was presented on 9 May 2021 and the third under claim number: 3306598/2021 was also presented on 9 May 2021. The three claims primarily arise out of the same matters. Each claim came with a significant amount of documentation from the Claimant. The first claim having 39 pages, the second and third claims 27 pages respectively.

[3]The Claimant is unrepresented and the claims are home made. The Claimant accepts she has little or no knowledge of Employment Law.

[4]The claims were considered in two Preliminary Hearings before Employment Judge Laidler on 13 December 2021 and Employment Judge Welch on 1 September 2022. The purpose of those Hearings was to attempt to clarify the nature of the Claimant’s claims in order for there to be a List of Issues in respect of which the Full Merits Hearing could be conducted on.

[5]The Claimant’s first claim was against her employer East and North Hertfordshire NHS Trust, the First Respondent. The second and third claims ranged against those employees at her employer who had been involved in the factual matrix which brought about the Claimant’s claims.

[6]Pursuant to the Preliminary Hearings, the claims were consolidated and listed to be heard together over 10 days between 31 October 2022 and 11 November 2022, by Cloud Video Platform (CVP) at the Bury St Edmunds Employment Tribunal.

[7]However, sadly when listed only eight and a half days were available. It fell to this Tribunal to attempt to deal with the claim in that time. Happily we were able to do so and reserve judgement.

[8]The Tribunal had before it a Bundle running to some 1,444 pages. We had nine witness statements before us, including a lengthy witness statement from the Claimant. The Claimant’s Claims

[9]The Claimant essentially pursues claims of direct discrimination under Section 13 of the Equality Act 2010 (“EqA”) based on the protected characteristic of race and religion or belief. The Claimant was unrepresented throughout the Hearing and the Respondents were represented by Caroline Jennings of Counsel.

[10]The issues before this Tribunal were ultimately distilled in the issues set out in the Case Management Summary pursuant to the Preliminary Hearing before Employment Judge Welch on 1 September 2022. It is on the basis of those issues, subject to the amendment mentioned below, that the case was conducted.

[11]We are bound to say that both in her evidence and more particularly in her submissions, the Claimant departed from those issues and made a number of other allegations which were not part of these proceedings. It is necessary that we confine ourselves to the issues set out in Employment Judge Welch’s Case Management Summary.

[12]We do not propose to repeat verbatim the issues set out as they are happily and clearly set out in that Summary. We will of course deal with each and every one of them in turn in our conclusions.

[13]With respect to those issues, during the course of giving evidence the Claimant seemed confused that her case was only confined to the issues determined in the Preliminary Hearing. She informed the Tribunal that in respect of her claim under s.13 EqA 2010 for direct discrimination on the protected characteristic of direct religion or belief, only that issue listed at paragraph 5e constituted her claim in religious discrimination. The issues numbered 5a, 5b, 5c, 5d, 5f and 5g, she was not seeking to proceed with in respect of her religious discrimination claims. However, 5a – 5g did form part of her race discrimination claim. The Comparators and the Claimant’s Application for Specific Disclosure

[14]At the outset of the Full Merits Hearing there was an issue which needed to be dealt with by way of preliminary Application.

[15]Originally, when there was an attempt to clarify the Claimant’s claims before Employment Judge Laidler, the Claimant indicated that in respect of her direct race discrimination claim, she was seeking to rely on an actual comparator Helen Brittain who was a former Theatre Manager at the First Respondent.

[16]Pursuant to a discussion during the second Case Management Hearing before Employment Judge Welch, the Claimant decided that she wished to change the name of her actual comparators to Les Jones and Emma Fitten who she says pursued grievance complaints against Helen Brittain and another Trust employee.

[17]She also made clear that she also sought to rely on a hypothetical comparator to support her race discrimination claim. With respect to her religion or belief discrimination claim, she sought only to rely on a hypothetical comparator.

[18]Pursuant to this change, the Respondents made it clear that they did not consider that Les Jones and Emma Fitten were appropriate comparators and indicated that they provide documentation to illustrate this.

[19]Employment Judge Welch gave an Order that such documentation be disclosed.

[20]At the outset of this Hearing, the parties had fallen into dispute about the nature of that disclosure. The Respondents say that they would only disclose sufficient documents to enable them to illustrate that the two new comparators were not appropriate comparators. The Claimant argues, we understand, that any and all grievances in respect of which those two comparators were involved, should be disclosed.

[21]No disclosure relating to those new comparators was contained within the Bundle before us.

[22]Miss Jennings, on behalf of the First Respondent, argued that grievances pursued by Les Jones and Emma Fitten were not materially similar to the grievances and subject matter of the Claimant’s claim in that their grievances were different. In respect of the grievance which the Claimant principally relies upon in her claims, there was no counter grievance raised. In this case there was and that necessitated a different method of investigation and process. She said the comparators were not appropriate as their circumstances were materially different. She said citing the overriding objective that were we to make an Order that documentation relating to grievances pursued by those two new comparators be produced, it would take time and these proceedings would inevitably be delayed and there would be some three to five hundred pages added to the Bundle unnecessarily. She says this is particularly so as those pages would be irrelevant. She argued also that it was not proportionate to, at this stage in the proceedings, seek to both delay the process and increase the voluminous level of paperwork before the Tribunal. The Bundle was already nearly fifteen hundred pages. She said that the likelihood would be that the Hearing would go part heard and that in the interests of costs this was prejudicial to the Respondent and would cause enormous further delay when any part heard Hearing is unlikely to be re-listed for another year to eighteen months. She argued that the Claimant was not in any way deprived of pursuing the claims she seeks to pursue by not Ordering the specific discovery she asks for. She says that the Claimant is entitled to rely upon the hypothetical comparator.

[23]She also said that the relevance of these documents was negligible in that all grievances are different, all pursued at different rates and times, quite apart from the argument that these are not appropriate comparators are their circumstances are materially different.

[24]The Claimant argued that she wished to have the further three to five hundred pages added to the Bundle and that an Order should be made for the Respondents to produce them. She said that it would illustrate how grievances pursued by the new comparators had been dealt with differently to her own. In this respect she referred to the grievance against Jherico Ocampo which she said had been turned into a disciplinary against her.

[25]The Tribunal retired to consider the Application.

[26]Generally, in considering such an Application, the Tribunal weighs carefully a number of factors. One of the key factors is the relevance, or likely relevance, of the documents sought.

[27]In this case we are persuaded by Miss Jennings that the new comparators put forward in September of 2022 are not appropriate comparators. Miss Jennings produced copies of interview notes with Helen Brittain, Theatre Manager, and Maria Ferguson in respect of whom grievances were pursued by Les Jones and Emma Fitten. The purpose of this was to illustrate the material difference between those grievances and the Claimant’s grievance. In the case of the Claimant’s grievance against Jherico Ocampo. Mr Ocampo had immediately raised a counter grievance against the Claimant which the Respondents then felt it appropriate to deal with both grievances together by way of an investigation which ultimately morphed into a disciplinary process against the Claimant.

[28]We are persuaded by Ms Jennings that a rather eleventh hour involvement of fresh comparators was in respect of comparators whose circumstances were not materially the same as the Claimant.

[29]Moreover, taking into account the overriding objective set out in the Employment Tribunal Rules of Procedure 2013, we do not consider that it is in the interests of abiding by that overriding objective to cause the First Respondent to track down some three hundred to five hundred pages of documentation relating to grievances which on the face of it appear to bear little or no relevance to the claims the Claimant is pursuing in this case. We do not consider in the circumstances that it would be proportionate to make such an Order. We are largely persuaded by the fact that the Claimant is not in any way deprived of any of her claims by us not making such an Order. She is perfectly entitled to pursue her claims on the basis of a hypothetical comparator which she is doing so in any event. We do not consider any prejudice to the Claimant is therefore likely to accrue from our refusal of this Application.

[30]We therefore do refuse it.

[31]The case therefore proceeded and is on the basis of the issues set out at pages 5 – 8 of Employment Judge Welch’s Case Management Summary of 1 September 2022. This is save as indicated above by way of amendment to the Claimant’s direct religion or belief discrimination claim.

[32]The issues before this Tribunal are as follows. These are from the summary of E J Welch. The Issues 1. Did the Respondents treat the Claimant less favourably by the following?: i. The investigation into the Claimant’s two Grievances (05.09.2018 against Jherico Ocampo and January to April 2019 against Sarah Haines) not being thorough or following policy – by Sue Hunt, Caroline Woodhams and Matthew Price; ii. The failure to invite the Claimant to any Grievance Hearing; iii. The delay of the Grievance Outcomes;a. The Judge tried to understand and asked the Claimant to explain why the delay was said to be on the grounds of her race. There could, it was suggested, be various reasons for the delay.

b. The Claimant’s case is that the Respondents looked down on her and they did not think that she would pursue the matter further and that she would just keep quiet. They assume that she would not have the knowledge of her employment rights because of her race.

c. It was explained to the Claimant that she will need to establish under the burden of proof provisions in the Equality Act 2010 that there were facts from which the Tribunal could conclude that there was less favourable treatment and only in those circumstances will the burden of proof pass to the Respondents to show that the reason for the treatment was nothing to do with race. iv. The Claimant’s two Grievances not being upheld on 4 August 2020 and the outcomes not being based on evidence – by Joanna Barks and Tanya Taylor; v. Denying The Claimant the option to appeal the grievance outcomes; a. It was established at this Hearing that there was an Appeal on 17 August 2020, but the allegation appears to be that the Fifth Respondent told the Claimant that she could not appeal the outcome of the Grievance. The Claimant did and there was ultimately an Appeal. vi. Being subjected to conduct investigations despite no formal complaints being made against the Claimant; vii. Turning one of the Claimant’s Grievances into a Disciplinary Hearing on 28 August 2020; viii. In August / September 2020, Karen Weddell providing an unsigned diary containing defamatory and wrongful statements about the Claimant and otherwise lying about the Claimant and instigating complaint against her; ix. Refusal to reconvene the Disciplinary Hearing to allow the Claimant to rely on evidence to help her case; a. This arose, the Claimant says, after she was provided with the evidence of Karen Weddell’s unsigned diary. She asked for the Hearing to be reconvened but was not granted that. x. In September 2020, the outcome of the Disciplinary Hearing being unfair and predetermined against the Claimant – by Caroline Dilks; xi. The sanction imposed following the disciplinary was too harsh – removal as a Team Leader, denying the Claimant career progression, and did not take into account the Claimant’s exemplary record; xii. The delay of the Appeal process for both the Grievance and the disciplinary outcome; xiii. In January 2021, the outcome of the Grievance Appeals not being upheld – by Natasha Simper; xiv. Delay in providing hearing notes in Grievance and Disciplinary Hearings; xv. Alterations made to meeting notes within Investigation Reports; and xvi. No support being given throughout the processes. 2. Save for the two named comparators that the Claimant relies upon, namely: Len Jones and Emma Fitten, she will in other respects be relying on a hypothetical comparator. ( Amended by the prleiminary decision above ). 3. If so, are there facts from which the Tribunal could conclude that such acts were because of the Claimant’s race? 4. If so, do the Respondents prove a non-discriminatory reason for the acts? 5. Did the Respondents treat the Claimant less favourably by the following? a. Fail to provide support to the Claimant during the Grievance process relating to her Grievance dated 17 March 2019; b. Fail to hold a Grievance Hearing; c. Fail to investigate the grievance thoroughly in accordance with the Respondent’s Policy;

d. Fail to provide an Investigation Report at the time of the Grievance Outcome;

e. Fail to uphold the Grievance;

f. Start an investigation into the Claimant as a result of her Grievance without a complaint having been received; and

g. Delaying dealing with the Claimant’s Grievance. Direct Religion or Belief Discrimination 6. Did the Respondents treat the Claimant less favourably by the following? i. Failing to uphold the Grievance pursuant to the Claimant’s Grievance dated 17 March 2019; a. In this respect the Claimant will rely on a hypothetical comparator. b. Are there facts from which the Tribunal could conclude that such an act was because of the Claimant’s religion or belief? 7. If so, do the Respondents prove a non-discriminatory reason for the act? Jurisdiction 8. Any alleged act before 28 September 2020 is prima facie out of time. Was there a continuing course of conduct bringing the final act within time and / or otherwise is it just and equitable to extend time?

The Issues

[33]Those issues are lifted directly from Employment Judge Welch’s Summary. They have been adjusted to reflect the withdrawal of six acts mentioned above in respect of the Claimant’s direct religion belief discrimination claim.

Findings of Fact

[34]It is important to point out that with nine lengthy witness statements and eight and a half days of hearing time, together with a Bundle running to some 1,500 pages, there was an enormous amount of material before the Tribunal. We therefore have not included all the evidence before us in our findings, only those which are material to the issues to be determined.

[35]This case revolves around two grievances that the Claimant initiated and the way in which those grievances were handled. The Claimant remains employed by the Respondent. The Claimant has worked for the Respondents since July 2005. She is employed as a Band 6 Team Leader specialising in Urology and Gynaecology. The Claimant is a Filipino woman who is also a Catholic.

[36]Her race claim was initially stated to be on the grounds of her colour, but was clarified at the Hearing before Employment Judge Laidler to be based on her nationality as a Filipino. Her religion and belief claim is based upon her religion being Catholic.

[37]The two grievances in question are grievances raised against work colleagues. The principal grievance which has triggered the Claimant’s claims is a grievance she raised against her Line Manager Jherico Ocampo who is also a Filipino. The second Grievance was against another work colleague, Sarah Haines. There were many satellite complaints and secondary grievances which the Claimant pursued arising out of the handling of those two grievances, but essentially the case arises out of these two grievances.

[38]The first grievance was raised by the Claimant on 5 September 2018. It was against Jherico Ocampo, a Filipino man. Jherico Ocampo is the Claimant’s Line Manager. The grievance was sent to Karen Weddell and copied into Jherico Ocampo himself. The document cites two incidents of alleged bullying on 20 and 21 August 2018.

[39]On 10 September 2018, Jherico Ocampo responded by raising a complaint of his own against the Claimant arising out of the two incidents mentioned by the Claimant in her grievance.

[40]In all likelihood, had the Claimant not copied Jherico Ocampo into her Grievance Letter of 5 September 2018, Mr Ocampo would not have raised the complaint against her and her grievance would have been dealt with under the Trust Grievance Policy. However, he did reply raising a complaint against the Claimant. It is this action which triggered a response from the First Respondent which really is the nub of this case and the principal plank of the Claimant’s complaints in this case. The response of Jherico Ocampo said that he wished to raise a grievance against the Claimant arising out of the two incidents. Thus the First Respondent was faced with how to manage two grievances. Essentially, a grievance and a counter grievance arising out of the same incidents.

[41]Karen Weddell the Claimant’s Theatre Manager, met with the Claimant and her Trade Union Representative on 10 October 2018 and explained that as there were two grievances arising out of the same incidents, rather than have separate processes it made sense to deal with both together. This would avoid duplication and would be an attempt to treat both parties fairly. The Tribunal accepts this as a valid course of action in the circumstances. There was also an attempt to deal with the matter informally and to resolve the issues between the two with a facilitated discussion between the Claimant and Jherico Ocampo, but the parties were not interested in this approach.

[42]The First Respondent therefore resolved to pursue a consolidated approach to the grievances.

[43]The Claimant expressed her unhappiness with this course of action in a letter dated 15 October 2018. She also questioned the appropriateness of Karen Weddell and Kelly Cooper (HR support) and questioned their impartiality. This was the first satellite complaint.

[44]The Claimant then on 18 December 2018 raised a fresh grievance against Karen Weddell, essentially on the basis of her being the architect of the consolidated approach. This was dealt with by the then Interim Head of Human Resources Jo Lysenko in a letter dated 28 December 2018. Jo Lysenko left the Respondent having chased the Claimant for a response to an enquiry as to how the Claimant wished to proceed and handed the matter over to Josie Potter. The Claimant confirmed that she wished to proceed formally and in March 2019 Sue Hunt was appointed to investigate the matter.

[45]On 9 April 2019, Sue Hunt who is a Senior Matron, wrote to the Claimant explaining that the consolidated approach, that is dealing with both grievances together by way of an investigation and a subsequent report would be adopted. The intention was for Sue Hunt to interview the Claimant, Mr Ocampo and other relevant parties and produce a Report. This would then be handed to another individual who would make a decision based on that Report as to how best to proceed. Sue Hunt was to be assisted by Caroline Woodhams of HR.

[46]She attempted to arrange an Investigation Interview with the Claimant, but this proved difficult largely due to the Claimant not accessing emails on nonworking days and not being prepared to attend any meetings on nonworking days. This is not a criticism of the Claimant, merely a statement of fact. This hampered both the process adopted in respect of the Jherico Ocampo Grievance and the second Grievance against Sarah Haines. Much of the delay in processing both grievances was due to the Claimant’s reluctance to attend meetings for these and other reasons. Other reasons included the non-availability of her Union Representative and her insistence on receiving a “formal” written invitation to meetings rather than merely an email.

[47]The Claimant wrote seeking to add a further issue into the process relating to her rostering and her flexible working arrangements.

[48]Ultimately, a meeting did go ahead with Sue Hunt on 28 May 2019 as part of the investigatory process dealing with the Claimant’s Grievance and Jherico Ocampo’s counter grievance.

[49]A similar investigation meeting with Jherico Ocampo took place on 1 May 2019. It was at this meeting that Mr Ocampo raised and added a further complaint against the Claimant in respect of an incident where she left an Operating Theatre on 26 March 2019. There had been an incident and an altercation between the Claimant and two Consultants during a procedure being carried out in Theatre. The Claimant left the Operating Theatre at the time. The complaint at the time was raised to Karen Weddell Theatre Nurse.

[50]In light of this additional complaint raised by Mr Ocampo as to the Claimant’s conduct in leaving Theatre during a procedure, Caroline Woodhams sought advice from Josie Potts Head of HR and it was decided to include this incident into Sue Hunt’s investigatory process which was already operating as a consolidated process because of the two grievances in play. This necessitated a change in the terms of reference for Sue Hunt’s investigation. This was then raised with the Claimant as part of the content of the Investigation Meeting on 28 May 2019.

[51]The First Respondents accept that procedurally they could have managed this process rather better. They accept that they did not share or discuss the new terms of reference with the Claimant at the time they added in the new allegation raised by Mr Ocampo on 1 May 2019. The original terms of reference were sent to the Claimant on 28 March 2019 when Sue Hunt was appointed.

[52]The First Respondents accept that in hindsight the Claimant should have been informed of the change in terms of reference and the addition of the incident of 26 March 2019. They accept that essentially the Claimant was somewhat ambushed at the investigatory meeting on 29 May 2019 in respect of the additional incident.

[53]Matters had been complicated by changes of personnel, including the fact that Ms Lysenko left, a change of the Commissioning Officer for the Claimant’s original Grievance against Jherico Ocampo, the fact that the Claimant raised tributary grievances against those originally slated to deal with her grievance against Jherico Ocampo and that as a result they were removed from the process, the length of time the matter took and the fact that the Claimant’s other grievance against Sarah Haines arising out of another incident concerning the Claimant’s religious objection to abortion procedures and the protocol surrounding such an objection, was also running in parallel.

[54]It is unfortunate that the Claimant was somewhat ambushed in that at the time of the meeting on 28 May 2019, she did not know that the incident on 26 March 2019 was to be included.

[55]We do consider it sensible and appropriate, however, for the First Respondent to have adopted the consolidated approach in light of the proliferation of different meetings and different personnel needed to be found to conduct each grievance separately. This would not have been helpful to the Claimant or Mr Ocampo and in our view would have been highly undesirable. We consider the First Respondent’s action in trying to bring all the relevant areas and complaints together in one investigation was eminently sensible and in the interests of all parties.

[56]It is a shame that they did not keep the Claimant better informed, however, yet we see nothing sinister in this failure and no evidence to suggest that the failure was anything other than just a procedural failure caused by a myriad of difficulties which we have already cited. Ultimately, the investigation itself was conducted entirely fairly and was very thorough in terms of the Report and subsequent proceedings which sprang from the Report.

[57]The other grievance, the subject matter of her complaint before this Tribunal was raised by the Claimant on 17 March 2019. This involved an incident concerning the Claimant’s religious objection to being present at an abortion procedure.

[58]The Claimant’s other grievance the subject matter of her complaint before this Tribunal, was raised by her on 17 March 2019. Matthew Price was appointed to pursue an investigation. He was appointed in May 2019. He investigated the grievance against Sarah Haines which revolved around three incidents. We heard evidence not disputed by the Claimant that a great many attempts were made to invite the Claimant to a Grievance Hearing. She refused for a variety of reasons, including the non-availability of her Union Representative, the fact that the meeting had been scheduled for a non-working day, the fact that she had training (which could easily have been rescheduled) and the fact that she had not received a “formal” invitation. Initially the Tribunal had difficulty understanding this last refusal, but it would appear the Claimant was seeking a more formally written letter rather than an invitation by email.

[59]This process ran in parallel with the first Grievance (consolidated) against Jherico Ocampo. It was then in the period from July to September 2019 that Jeremy Morrison, Interim Employee Relations Manager, intervened and sought the pausing of both grievances and any satellite grievance investigations in an attempt to promote a conciliated approach to dealing with all of the Claimant’s issues.

[60]In June 2019, the Claimant informed Sue Hunt that she had dispensed with the services of her Trade Union Representative Brigid-Ann Lord and that she was raising complaint against Sue Hunt and seeking her removal from the process. She also raised complaints about Caroline Woodhams.

[61]Mr Morrison sought to pause both grievances and accordingly instructed both Sue Hunt and Matthew Price to pause their investigations.

[62]Mr Morrison reasonably felt that in light of the myriad of tributory grievances arising out of the two grievance investigations it might be wise to take a step back and try to take a fresh perspective and deal with the whole proliferation in a conciliated way. After some interaction with the Claimant it appeared a meeting had been agreed to further this approach. This was due to take place on 18 September 2019. The day before on 17 September 2019, the Claimant wrote to Jeremy Morrison indicating that she was not prepared to attend as she had not received a formal written invitation and was not happy that the meeting was going to be informal. This essentially scotched any attempts being pursued by Mr Morrison at resolving the various matters then in play.

[63]The pause was lifted. Ms Hunt then completed her Report in December 2019.

[64]After trying on may occasions to engage with the Claimant and arrange a Grievance Meeting after consultation with Mr Morrison, Mr Price proceeded to put together a Grievance Report without holding a meeting with the Claimant. We heard evidence not disputed by the Claimant that the First Respondent could quite properly have simply dropped the grievance investigation being pursued by Mr Price due to the Claimant’s failure to engage. This would have been possible under the Trust’s Grievance Policy at 12.3.5. This was something the Claimant suggested the Trust could and should have done in her evidence. However, they did not and Mr Price duly interviewed Sarah Haines and two other relevant witnesses before producing a Report which did not uphold the Claimant’s allegations against Sarah Haines. As part of the documents included in that process was a diary entry which Karen Weddell introduced as a contemporaneous note as to events on 26 March 2019. The note is a record of discussions she had immediatley after the incident with those involved. We see no ulterior or sinister motive or purpose in the existence of this note or the contents of it.

[65]In the winter and new year of 2020, the world was largely brought to a halt by the Covid pandemic and the NHS was plunged into a crisis the like of which had not been seen in living memory. All HR processes were paused in February 2020. Jeremy Morrison then left the Trust.

[66]Joanna Barks, Deputy Divisional Director of Nursing for Planned Care, became involved in July 2020 when that pause had been lifted. Covid, however, was still very much of an issue and would remain so for another year.

[67]She became the Commissioning Manager for the Claimant’s first Grievance (consolidated with the JO Grievance) pursuant to the Report from Sue Hunt. The two previous Commissioning Managers had sadly left. These were Caroline Kaswauree and Mr Palmer Winstanley. They were General Manager of Theatres and Divisional Director of Surgery respectively.

[68]Joanna Barks based on the Investigation Report of Sue Hunt, reviewed that Report and made a decision about the Claimant’s Grievance against Jherico Ocampo and whether the Investigation Report revealed sufficient issues about the Claimant’s behaviour that merited disciplinary action against the Claimant. She decided not to uphold the Claimant’s Grievance and decided that disciplinary action against the Claimant was justified.

[69]Joanna Barks had never met the Claimant and had no knowledge of her. We heard evidence that she did not know who the Claimant was and the nature of her race or religion. She arranged to meet the Claimant on 3 August 2020 and at that meeting handed her, her own Decision Letter based on Sue Hunts report and the Grievance Outcome letter pursuant to the Matthew Price investigation. That Grievance Outcome letter was penned by Tanya Taylor. She had produced the outcome based on the Investigation Report produced by Matthew Price. This included an outcome of the Claimant’s Grievance complaint against Sarah Haines and the added complaint by the Claimant regarding flexible working.

[70]The Claimant then ultimately was subject to a detailed Disciplinary Hearing arising out of Joanna Barks’ decision pursuant to the Sue Hunt Report which lasted over a period of days and was conducted by Caroline Dilks. There were three allegations which emerged to be dealt with against the Claimant, all of which arose out of Sue Hunts Investigatory Report. These were:70.1 That the Claimant failed to obey the reasonable Management request to perform last offices on a deceased patient with the support of a Retrieval Nurse and a Band 5 Nurse;

70.2 The Claimant had failed to keep her knowledge and skills up to date in line with NMC Code of Practice enabling her to perform last offices on 26 March 2019; and

70.3 The Claimant had walked out of Theatre during a patient procedure leaving a patient actively bleeding on the operating table on 26 March 2019.

[71]Caroline Dilks was assisted by HR in the shape of Urire Imoyin-Omene who was an Employee Relations Manager. The Claimant was supplied with a copy of the Sue Hunt Report. Jherico Ocampo and the two Consultants involved in Theatre on 26 March 2019, Sangeeta Sawant and Radhika Padmagirison were called to give evidence at that Hearing.

[72]The Disciplinary Hearing took place over two days on 18 September and 22 September 2020. The Claimant was accompanied by a Trade Union Representative Paul Schroeder.

[73]Pursuant to the Disciplinary Hearing which took place over two days, Caroline Dilks made a finding and concluded that the Claimant’s actions in not performing ‘last offices’ when requested by her Line Manager and in leaving the operating theatre whilst a patient was actively bleeding, constituted an act of gross misconduct in that they amounted to negligence which could result in serious loss, damage or injury and a serious breach of professional code of conduct; specifically the NMC Code of Conduct which contains the professional standards that Registered Nurses must uphold. In particular, under the NMC Code of Conduct Nurses are expected to act in the best interests of people receiving care at all times.

[74]As set out in her findings, Ms Dilks considered that in normal circumstances the allegations would pass the threshold for dismissal. However, she took into account mitigating factors including the length of time it had taken to convene the Disciplinary Hearing following the incidents, the Claimant’s length of service and her previously exemplary disciplinary record. In taking these mitigating factors into account, Ms Dilks decided to issue the Claimant with a final written warning extant for 18 months applied retrospectively. That means that the final written warning would only remain in place for three months pursuant to her outcome letter. Despite the Claimant’s claims she was not removed as Team Leader as a result of the disciplinary process. That is not correct. She was not taken out of her band 6 post and removed from Gynaecology as a result of the disciplainry process as she suggests. Nurses were required to work on rotation as a result of the pandemic. This was uncconected to the disciplinary process or any sanction arising out of it.

[75]The Claimant subsequently appealed against that disciplinary outcome and was in part successful in doing so. A Disciplinary Appeal Hearing took place on 12 July 2021 Chaired by Mel Gunston(Deputy Chief Nurse). After conducting the Disciplinary Appeal Mel Gunston determined that she did not regard the Claimant’s conduct on 26 March as serious enough to amount to gross misconduct. She also found that the failure to perform last offices on 21 August 2020 was not serious enough to amount to gross misconduct. The final written warning was revoked. Whilst Ms Gunston disagreed with the findings of Ms Dilks, additional complaints raised in the Appeal that the decisions reached by Caroline Dilks were motivated by race and / or religion were not upheld by Ms Gunston and found no substance in allegations raised in that respect.

[76]The Claimant also appealed against the outcome of the grievance against Sarah Haines and this Appeal was heard by Natasha Simper. The Appeal took place on 8 December 2020 and on 15 December 2020. That Appeal Outcome was sent to the Claimant on 27 January 2021. There was some delay, some of this was because Ms Simper was awaiting a final statement which the Claimant indicated she wished to raise and there were further delays for Ms Simper in seeking advice from HR.

[77]The Claimant’s Appeal was not upheld, but in the Appeal Outcome Ms Simper did acknowledge that there were a number of failings in the process; in particular in the time lines and the communication between the parties. She also concluded that it would and perhaps should have been the case that due to the Claimant’s failure to engage the grievance should not have been pursued and could have been dropped under the Grievance Policy at 12.3.5. She made various recommendations.

[78]She did, however, find that none of the failings were in her view anything to do with the Claimant’s race or religion or in any way connected with them.

[79]There was also a Grievance Appeal against that part of the Investigation Report and the subsequent finding relying upon that Report of Joanna Barks where she essentially dismissed the Claimant’s original grievance against Jherico Ocampo.

[80]Initially the Claimant was informed that she could not appeal against that aspect of the Investigation Report, which had at its heart the consolidated procedure and the ultimate recommendation that the Claimant be the subject of disciplinary proceedings.

[81]She was told that any Appeal would have to be against a finding pursuant to the subsequent Disciplinary Hearing at which Ms Barks recommended pursuant to her review of the Investigation Report of Sue Hunt.

[82]The First Respondents say that had they have allowed an appeal at that stage they would have enlisted an unusual set of circumstances as there would have been two parallel processes within HR, one under the heading of ‘Disciplinary’ and one under the heading of ‘an Appeal’, with Managers making findings on the same matters of fact. The Tribunal is rather inclined to agree with that. The proliferation of hearings arising out of the same set of facts is always to be discouraged. We do not see anything sinister in the decision not to allow the Claimant to appeal against the finding of Sue Hunt / Joanna Barks which was in effect a refusal of the Claimant’s Grievance against Jherico Ocampo.

[83]Ultimately, some considerable time later in October 2021, the Respondents did allow a Grievance Appeal Hearing and Outcome purely on the Jherico Ocampo Grievance in October 2021. This amounts to a significant delay, but we regard it as not sinister in any way, merely a confusion of how best to deal with the process.

[84]What is clear is that there was an enormous proliferation of grievances, further grievances, complaints and appeals arising out of the Trust’s decision, all of which arose out of the two grievances originally pursued by the Claimant. The final outcome was that the Claimant was unsuccessful in her Grievance against Jherico Ocampo, and unsuccessful in her Grievance against Sarah Haines and was subjected to a disciplinary sanction pursuant to the disciplinary proceedings conducted by Caroline Dilks. However, that final written warning issued pursuant to those disciplinary proceedings was revoked on Appeal by Ms Gunston.

[85]The Claimant remains employed and continues to work at the Trust.

[86]We are bound to say that even on the basis of the considerable attempts by Judges Laidler and Welch to distil and understand the nature of the Claimant’s claims, her claims and arguments that she was subject to direct race and direct religion or belief discrimination were something of a moving feast. Many of the issues identified in Judge Welch’s Summary are not clear as to precisely what the act the Claimant says she is relying upon in respect of her direct discrimination claims. She also sought to introduce throughout this process other claims which we did not allow and seemed confused that she had to confine herself to the issues as set down. As a result, it would have been very easy for the matter to become extremely confused. To avoid this we are confining ourselves to the issues (as amended above) set out by Employment Judge Welch. We do, however, need to make one or two findings of fact so as to be able to draw conclusions in respect of one or two of those specific issues.

[87]The Claimant argues that there were deliberate alterations or fabrications made to meeting notes within Investigation Reports, that appears at 1(xv) of the issues in Judge Welch’s Summary. That is largely unspecific but we were able to determine during the course of the Hearing that the Claimant’s only complaint in this respect appears to relate to errors in the wording used by Sue Hunt in her Investigation Report which Joanna Barks relied upon in making findings. These findings resulted in disciplinary proceedings. In evidence Ms Hunt accepted that there were errors in the Reports, although that these were minor. There was the superfluous use of the word ‘again’ when describing the Claimant having left the Theatre in respect of the incident of 26 March 2020 and in repeating the nature of the surgery that took place at the time the Claimant left the Theatre, there were some misstatement of the evidence of one of the Consultant Surgeons who was interviewed. Neither of these errors was material. Ms Hunt actively apologised for them during the giving of her evidence. We regard them as minor and immaterial. However, in any event they were brought to the attention of Ms Dilks at the outset of the Disciplinary Hearing and she would have known about them prior to arriving at her decision. The Claimant also argues that there was delay in providing hearing notes in grievance and disciplinary hearings. Jilst her complaint is not clear we have heard no evidence to suggest that there was unreasonable delay. Where minutes existed they were provided either as a matter of course or promptly upon request.

[88]In evidence the Claimant also confirmed that in respect of this issue of complaint, she was also referring to the Sarah Haines Grievance Appeal Hearing notes. The note taker at the Appeal Hearing was Ms Williams. The Claimant argued that the notes were inaccurate and were not captured as she would have wanted. She was given the opportunity to add anything she wished to the Hearing minutes. Ms Williams at the time explained that the notes provided were the notes taken and she had only edited them to correct typographical errors.

[89]With respect to both this complaint by the Claimant and that relating to the errors in Ms Hunt’s Report, we cannot find any evidence to suggest that alterations had been made to meeting notes within those Reports or that there was any deliberate tampering of such Report or notes, as was constantly referred to by the Claimant throughout these proceedings.

[90]There was a great deal of material before the Tribunal and the proliferation of Reports, Appeals and notes were in the main impressively compiled by those involved. We can find no fault or suggestion that there was any manipulation in the way in which the Claimant suggests.

[91]The Claimant also argues that she was not supported throughout the processes. It is difficult to understand what she meant by that, but during her cross examination the Claimant’s complaint in this regard appears to be what she argues was a failure to consistently signpost her to employee support (the Employee Assistance Programme). As pointed out by Counsel in her submissions and referred to in evidence, particularly from Mr Price, some letters in respect of the processes that were undertaken contained such signposting and reference to the Employee Assistance Programme whereas others did not. However, it is clear that the Claimant was aware of the Employee Assistance Programme as it is contained within the investigation’s procedure. The Claimant was aware of this as she used it to criticise the Respondents various processes. We do not see anything material in the failure to attach a signpost to every letter sent to the Claimant.

[92]One of the issues relied upon at 1(ix) was also confusing. This is referred to as a refusal to reconvene the Disciplinary Hearing to allow the Claimant to rely on evidence to help her case. In Judge Welch’s Summary, a subparagraph seeks to explain this by saying that this arose, the Claimant says, after she was provided with the evidence of Karen Weddell’s unsigned diary. She asked for the Hearing to be reconvened but was not granted that. It emerged during the Hearing that that was not in fact what the Claimant was arguing as being an act of discrimination. It appears, under cross examination, that the Claimant wished to argue that she was provided with an email showing Karen Weddell asking the Consultants for their versions of events on 26 March 2019. The Disciplinary Hearing on 18 September 2020, started and the Claimant requested an adjournment to consider emails sent to her that day. We have seen these emails in the Bundle and they are minor and immaterial. She seems to be saying that it was an act of discrimination not to allow her to have an adjournment to consider those emails. They were very short and Ms Dilks confirmed that she would take them into account before reaching her decision. We can see no disadvantage to the Claimant in Ms Dilks taking this course of action. Moreover, the Disciplinary Hearing was held over until 22 September 2020 as there was insufficient time to deal with it on the 18th and the Claimant had ample time to consider those emails between 18 and 22 September 2020. The Claimant’s Claims in Direct Race and Direct Religious Discrimination

[93]Throughout this process commencing with the two Grievance procedures, the first against Jherico Ocampo and the second against Sarah Haines, the Claimant has continuously produced a plethora of documentation at every stage of the processes; including the subsequent disciplinary process and throughout all the Appeals and tributary and satellite grievances she has raised. Throughout the vast majority of those complaints, the Claimant did not mention her race or religion as being the reason why she says she is being mistreated. She argues that the treatment of her is not fair, is unjust, is without proper evidence and uses on occasion the word “recrimination”. She does not, however, mention that any of the treatment of which she complains is on the grounds of race or religion until September 2020, some two and a half years after the first grievance was raised and some eighteen months after the second grievance was raised when she writes an extremely lengthy 19 page letter of issues she wishes to be considered in the disciplinary process being conducted by Caroline Dilks. At that time she raises issues that she thinks her mistreatment is on the grounds of, or because of, her race or colour. She subsequently confirmed that she believed the treatment was on the grounds of, or because of, her nationality when in the first Preliminary Hearing before Employment Judge Laidler.

[94]She launches a series of grievances in February 2021 against all individuals who had been involved in the various processes to date, at which she alleges race and discriminatory treatment on the grounds of race and religion. This once again is very late in the process. When questioned about this when she was giving evidence, the Claimant’s evidence was not clear as to when she first felt that the alleged mistreatment of her throughout the various processes was because of race and / or religion. She said that initially she felt she was just being unfairly treated, but after she had been handed the outcome of the investigatory Report by Joanna Barks and the outcome of the Sarah Haines Grievance on 3 August 2020, she then had an inkling that the various issues of which she was complaining were on the grounds of race and / or religion. It was on the back of this that she subsequently launched grievances against the eight Respondents now included in these proceedings in a lengthy letter of 17 February 2021. Throughout this whole Tribunal, the Claimant never seemed clear about precisely what she was arguing in terms of her race claims. She said that there had been a conspiracy against her and used the phrase “they were cooking up something against me”. Despite questioning her about this, it was difficult to be clear about precisely what she saw the conspiracy as being. She said the conspiracy was to get rid of her, but of course no decision was taken ultimately to dismiss her and even the final written warning with which she was issued was ultimately removed and the disciplinary finding downgraded. It is difficult to be clear about precisely what the nature of the discrimination is the Claimant says she suffered, but it is impossible not to draw the conclusion that arguing that the mistreatment of her was on the basis of race and / or religion, is something of an afterthought. She had raised hundreds of pages of complaint before September 2020 with no mention of race or religion being in any way connected with the treatment she was complaining of.

[95]Her principal and overarching argument repeated continually throughout these proceedings, was that she felt aggrieved that the First Respondents had turned her Grievance against Jherico Ocampo against her and that her Grievance had morphed into disciplinary proceedings. This appeared to be the driving force behind these proceedings. She was very irked and upset that Jherico Ocampo’s counter grievance was treated as such and that ultimately his version of events was believed over hers. That appears to be the nub of her argument here and the foundation of all her claims, albeit that she has expanded that unhappiness to include all aspects of procedures handled by the First Respondent. Jherico Ocampo is also Filipino and it is difficult to see how the Claimant’s claims of different treatment in respect of his word being preferred over hers would be on the grounds of race.

[96]The Claimant is clearly very aggrieved about the treatment that she says she has received. The First Respondent accepts, as do many of those who gave evidence in front of us amongst the eight other Respondents, that for a variety of reasons the process could have been handled better. Recommendations were made by those sitting on Appeals from some of these processes and most of those relate to failures of the Trust and those managing the processes in procedural terms. There is no doubt that there were some failures. However, the Tribunal is bound to say that we consider that in the main we regard those who conducted the investigation, the disciplinary proceedings, the Grievance against Jherico Ocampo and the Grievance against Sarah Haines and the various Appeals that followed, to have acted entirely properly and fairly. There were delays and there was some confusion, but we cannot be critical of those processes above pointing out that there were some deficiencies due to difficulties which the Claimant herself made in delaying all of those processes and the difficulties the Trust faced in finding individuals to manage those process when the Claimant sought to argue that many of those put forward to deal with those complaints should be excluded on the grounds of alleged impartiality. The Trust is a busy hospital employing a hugely diverse workforce of which we understand some 70% of the nursing staff is non-white. Those involved in these procedures were extraordinarily busy throughout the period of time taken up by these processes and experienced having to cope with the Covid pandemic at the same time.

The Law

[97]In this case the Claimant pursues claims of direct race and direct religious belief discrimination. These claims are based on Section 13 of the Equality Act 2010 (“EqA”).

[98]S.13 EqA provides, Direct Discrimination (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

[99]The protected characteristics relied upon here are race and religion or belief.

[100]Direct discrimination therefore occurs where A treats B less favourably than A treats or would treat the appropriate hypothetical comparator during the course of B’s employment and such treatment is on the grounds of B’s protected characteristic.

[101]It is also further necessary for B to have suffered some identifiable disadvantage. A Tribunal may conclude that a comparator was or would have been more favourably treated but it must consider whether the difference in treatment was due to the protected characteristic. The Tribunal has considered the leading cases in this respect and we are grateful to Ms Jennings for her submissions in drawing them to our attention. We have considered:  Nagarajan v London Regional Transport

[1999] ICR877

;  Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] IRLR285

; and  Madarassy v Nomura International Plc

[2007] IRLR246

[102]The principles from these authorities are often put as a two stage test. Was there less favourable treatment and what was the reason, or the reason why? The question is why the Claimant was treated as she was.

[103]The Madarassy case tells us that the bare facts of a difference in status and a difference in treatment only indicate the possibility of discrimination. They are not without more sufficient material from which a Tribunal could conclude that on the balance of probabilities the Respondent has committed an unlawful act of discrimination.

[104]The burden of proof is on the Claimant to initially prove facts which could establish that an act of discrimination occurred. It is only once this has been satisfied that the burden shifts to the employer. Once the burden has passed to the Respondent, it is on them to show that a contravention did not occur. This is a statutory stage two tests set out under s.136 EqA 2010.

[105]We have considered the Authorities of:  Barton v Investec Henderson Crosthwaite Securities Limited

[2003] IRLR332

; and  Igen Limited & Ors. v Wong

[2005] EWCA Civ 142

[106]Igen v Wong tells us how to apply the burden of proof two stage tests.

[107]If the burden does shift, it is for the employer to show a non-discriminatory reason for the treatment in question. It is not required to show that the treatment was reasonable or fair. This proposition is supported by:  London Borough of Islington v Ladele

[2009] IRLR154

. Submissions

[108]We had written submissions before us from Ms Jennings and Ms Jennings spoke briefly to those submissions. Ms Jennings asked us to accept that this was an unhappy case and that the Claimant genuinely felt aggrieved. She alights upon the fact that she can only believe that the reason for the treatment about which she feels aggrieved must be race or nationality. She points out to us that eight employees of the First Respondents were joined in as Respondents to these proceedings and that that is upsetting for all of those Respondents, albeit that it is accepted that the Claimant feels aggrieved. She said the case is encapsulated in the documentation. The Claimant, throughout the processes, argues that her treatment is unfair and unjust, not only as an afterthought that she raised the issue that it is because of her race and in one respect because of her religion. She says that the Tribunal may legitimately criticise the Respondents for the procedures and some of the delays, but none of those failings were because of race or religion. She refers us to her written submissions and says the Tribunal must have evidence before it that an act was done because of race. There may be elements where the Respondents could have done things better and they have held their hands up in that regard. She says that in many instances on cross examination, the arguments that acts were done because of race were not put to the witnesses, nor was it put to them that the justification for the conduct was not genuine. She says nowhere in the evidence was there anything that would draw the Tribunal to conclude that race was the reason for the treatment. She reminds us that Jherico Ocampo, the principal object of the Claimant’s complaints, is also Filipino and that the First Respondents have an extremely diverse workforce with 70% of staff being non-white British. She said there is no evidence anywhere to suggest that being a Filipino had anything to do with the treatment of the Claimant. She points out that Ms Barks had no idea who the Claimant was prior to arriving at her decision to accept Sue Hunt’s recommendation to move the matter forward to a Disciplinary Hearing. She had seen the Claimant’s name, but that of itself did not alert her to the fact that the Claimant was Filipino. Matthew Price had no knowledge of her, Sue Hunt did not know the Claimant and had no interaction with her. Caroline Dilks did not know her until the Disciplinary Hearing, the same can be said of Natasha Simper.

[109]We then heard extremely lengthy submissions from the Claimant who thanked us for the opportunity to present her case and for the way in which we had assisted her. She explained that she knew nothing about the Law, but she asked us to consider what was fair and just. We are bound to say that her submissions ranged well beyond the claims set out in these proceedings and the issues crystallised in the two Preliminary Hearings. She made various additional allegations that Filipinos were held back from promotion, but these are not part of her claim. We were still not entirely clear as to the precise nature of her thinking that all eight individuals were involved in a conspiracy against her. She said those involved in the processes were handpicked. She said they had little or no training. She reminded us that she had had no support throughout the processes. She said that both Jherico Ocampo and Sarah Haines’ version of events had been preferred over hers. She said that there had been a deliberate process to build a case against her pursuant to the inclusion of the incident on 26 March 2020. She said there was a “cooked up case” against her. She said there was a deliberate attempt to oppress her through the disciplinary in the hope that she might leave. She said that Karen Weddell was against her and that the evidence that Karen Weddell gave was crucial against her. She said that the disciplinary process had a predetermined outcome.

[110]She said that the light bulb moment when she realised that it was all due to her race was when the Grievance was converted to a Disciplinary Hearing. She said the delays were all part of the discrimination against her and that her life was put on hold during the extended period. She said “If you fight back against the Trust you end up like me” She said they had all ganged up against her.

[111]Ms Jennings intervened and argued that much of what was said, or that some of what was said, in the Claimant’s submissions was entirely fresh and had not been put to any of the Respondent’s witnesses. The Tribunal accepted this and assured Ms Jennings that they would confine themselves to the issues. That is what we propose to do.

Conclusions

[112]Taking into account the findings of fact we have made; we reached the following conclusions on the issues set out in Employment Judge Welch’s Summary. Issue 1(i) The Investigation into claims that two Grievances against Jherico Ocampo and Sarah Haines were not thorough or were not following policy by: Sue Hunt, Caroline Woodhams and Matthew Price.

[113]With respect to the Grievance against Jherico Ocampo, by copying in Mr Ocampo the Claimant inadvertently set in train a chain of events which has led to the nub of her claim. Mr Ocampo was aggrieved by the allegations against him and lodged a counter Grievance arising out of the same set of circumstances. The First Respondent, entirely reasonably in our view, considered that it was appropriate and sensible to consolidate those Grievances and deal with them together as they arose out of the same set of circumstances. There was delay and it was unfortunate that Jo Lysenko left as this contributed to the delay with the matter being taken over by Josie Potts. The investigation that followed was not an investigation limited to the Claimant’s Grievance against Jherico Ocampo, but a general management investigation into the events. The Claimant was, however, aware that the consolidated approach was going to take place by March 2019, albeit she was unhappy about that. The First Respondent perhaps could have handled matters better pursuant to the adding of the further incident raised by Jherico Ocampo when he was interviewed as part of the investigatory process on 1 May 2019. The terms of reference were adjusted to include this incident as part of the investigatory process and the Claimant first knew about it when she was interviewed on 28 May 2019. It would perhaps have been more appropriate to inform her of this in advance. However, we do not consider this to amount to less favourable treatment. The process was a complicated one and the Claimant had made it clear that she was going to rail against the process at every stage throughout. Had she been informed of the change of terms of reference, we do not consider that it would have affected matters at all and may even have caused further delay as she may well have further complained in great detail and refused to attend the Hearing on 28 May 2020. That is of course speculation, but we cannot find that the handling of the Jherico Ocampo Grievance, the subsequent Investigation Report of Sarah Hunt, the findings of Joanna Barks and the subsequent disciplinary process, amounted to less favourable treatment. Even if it had, there is not a scintilla of evidence to suggest that it was in any way connected to the Claimant’s nationality or race. We are bound to add that we consider that the First Respondent did everything it could to deal properly with the Claimant’s complaints. There were failings, but we see no evidence of a conspiracy involving Karen Weddell, Kelly Cooper, Sue Hunt, Joanna Barks and Caroline Dilks. We heard evidence from all eight of the Respondents and there was no evidence at all of collusion between them.

[114]With respect to the Sarah Haines Grievance, we consider that the Respondents went further than was necessary. Mr Price did the very best he could in the circumstances in light of the Claimant’s failure to engage with him. The Respondents could have simply dismissed the Claimant’s Grievance under the Policy, but did not do that and took the time, trouble and effort to deal with it on the basis of the written Grievance and the other evidence before them. Mr Price performed manfully and produced a Report upon which Ms Taylor made findings. We consider that the process was thorough and although departing perhaps slightly from the Policy, did not amount to less favourable treatment. The Respondents were doing all they could to give the Claimant a Hearing and a definitive outcome.

[115]We would also comment that there is no evidence whatsoever to suggest that any of the actions conducted by those involved in the Sarah Haines Grievance were in any way connected with the Claimant’s race. As with the Jherico Ocampo investigation, the individuals involved were not familiar with the Claimant in any way. We believe they did the very best they could in difficult circumstances.

[116]We have already commented upon the Claimant’s use of actual comparators and have used the hypothetical comparator in arriving at our conclusions. Issue 1(ii): The failure to invite the Claimant to any Grievance Hearing.

[117]This Claim relates to the allegation that the Claimant was not invited to a formal Grievance Hearing in respect of the Jherico Ocampo Grievance. The reasons for that are clear in that it was entirely logical to consolidate the two Grievances arising out of the same incidents and investigate them collectively. This does not amount to less favourable treatment. Even if it did, there is no evidence whatsoever to support any assertion that the reason that this course of action was followed was because of the Claimant’s race or nationality. For the avoidance of doubt and we have already stipulated we do not consider that this course of action was an error in approach. We consider it was logical and sensible. Both those pursuing the Grievance were Filipino and it was logical to hear from them both and make a decision based on the evidence. The First Respondents did that.

[118]As for the Sarah Haines Grievance, it is simply not true that there was a failure to invite the Claimant to a Grievance Hearing. It is not clear from the issues whether the Claimant is actually pursuing a claim on this basis. For the avoidance of doubt, however, the Claimant was invited to an Investigation Meeting on five occasions and refused to attend. The Claimant in her own evidence said that she accepted that the Respondents in those circumstances would have been entitled to dismiss her Grievance under the Grievance Policy on the basis that she failed to engage. Issue 1(iii): The delay of the Grievance outcomes.

[119]There certainly were delays in the management of the Jherico Ocampo Grievance and the outcome which was wrapped up in the Sue Hunt Report and the findings of Joanna Barks. In our findings of fact, however, we have already given the Tribunal’s view that we do not consider that these delays were all of the First Respondent’s making. The Claimant was as much, if not more, responsible for the delays than the First Respondent. The fact is that for a combination of reasons, particularly the Claimant’s reluctance to attend Hearings and to engage, there were considerable delays. Delays were also caused by the Respondents attempting to pursue a conciliatory approach and resolve matters. That is laudable.

[120]We do not consider that the delays amounted to less favourable treatment. Even if we had drawn that conclusion, we do not see any evidence to support the suggestion that the Claimant would have been treated any differently had she been a non-Filipino in the same material circumstances. Issue 1(iv): The Claimant’s two Grievances not being upheld on 4 August 2020 and the outcomes not being based on evidence by Joanna Barks and Tanya Taylor – Race discrimination.

[121]We are persuaded by Ms Jennings. The Claimant does not agree with the two Grievance outcomes, but that does not mean they were not based on evidence. The conclusions were based on a plethora of evidence that was before the parties who arrived at the conclusions relating to those Grievances.

[122]The Claimant’s Grievance against Jherico Ocampo was not upheld, that was contained in the findings of Joanna Barks pursuant to the Sue Hunt Report. Ms Barks accepted Jherico Ocampo’s version of events over the Claimant’s. Mr Ocampo is also Filipino. Ms Barks did not know the Claimant and had not met her before 3 August 2020 and she did not know she was Filipino.

[123]There was some confusion in the Claimant’s evidence and she seemed to resile from the fact that she was arguing that the conclusion reached by Joanna Barks was less favourable treatment on the grounds of her race. It is difficult to be clear what the Claimant was alleging as she oscillated between arguing that everything she was unhappy about was on the basis of her race and that it was a conspiracy between those involved to “cook up a case” against her.

[124]Save to say we do not consider that the failure to uphold the Grievance against Jherico Ocampo was less favourable treatment. In any event, there is no evidence whatsoever that it was on the grounds of race. Mr Ocampo himself was Filipino and the process conducted was very detailed, there is not a shred of evidence to suggest that the decision was in any way based upon the Claimant’s race.

[125]The Claimant’s Grievance against Sarah Haines was not upheld. Based on Mr Price’s Report, Tanya Taylor found no evidence to support the Claimant’s allegations of bullying and harassment by Sarah Haines.

[126]There is nothing to persuade us that the finding in respect of this Grievance was less favourable treatment and in any event there is no evidence to support the suggestion that it was because that any finding was because of the Claimant’s race or nationality. Issue 1(v): Denying the Claimant the option to Appeal the Grievance outcome.

[127]It has been established that the Grievance against Jherico Ocampo encapsulated within the findings of Joanna Barks, was ultimately the subject of an Appeal; albeit some considerable time later towards the end of 2021. It appears that the Claimant’s case is based on the refusal at the time in or around August 2020 to allow an Appeal, albeit that one was allowed subsequently. In light of the evidence before us, it is the Tribunal’s conclusion that it probably would have been sensible for the Respondents to adhere to the principle that in the circumstances of the consolidated process, it would not have been appropriate for one part of the Investigatory Report to be separated out and subject to an Appeal. The Report had recommended disciplinary proceedings which went ahead and an Appeal could have been pursued against the disciplinary outcome, as indeed it was. A decision to allow an appeal in respect of one aspect of that finding of Joanna Barks, it being the Jherico Ocampo Grievance, in the Tribunal’s conclusion rather over complicated the matter. We therefore do not find that this refusal at the time amounts to less favourable treatment. In any event, an Appeal was finally conducted in October 2021. The Claimant was not disadvantaged and once again the First Respondent bent over backwards to give her due process. In any event, there is no suggestion in any evidence that would lead us to believe that any of these decisions were based on the Claimant’s race, or were in any way connected with the

[128]With respect to the Sarah Haines Grievance, there was an Appeal; this was not upheld. There was no denial of such an opportunity. Issue 1(vi) (vii): Being subjected to conduct investigations despite no formal complaint being made against the Claimant; and Turning one of the Claimant’s Grievances into a Disciplinary Hearing on 28 August 2020.

[129]This is based on the Claimant’s unhappiness that her Grievance against Jherico Ocampo was turned into a disciplinary matter, ultimately against her. As the Tribunal have indicated, we considered that it was sensible and appropriate, in light of a counter grievance having been raised by Mr Ocampo, to deal with matters collectively and we cannot and do not criticise the Respondent’s processes in this respect. Save for perhaps in one regard, that is that they might have better communicated with the Claimant throughout the process as to the adding in of the further complaint raised by Mr Ocampo pursuant to his investigatory meeting on 1 May 2019. The same can be said of the change in terms of reference. However, we do not believe it would have made any difference and we do not consider that the Claimant was in any way disadvantaged by this minor failure. We do not consider this to have amounted to less favourable treatment.

[130]The Claimant also, in this issue, argues that no formal complaint was made against her. This is simply not true. Jherico Ocampo raised a formal Grievance against her once she had copied him into her Grievance. This was a formal complaint. Issue 1(viii): In August / September 2020, Karen Weddell provided an unsigned diary containing defamatory and wrongful statements about the Claimant and otherwise lying about the Claimant and instigating complaints against her.

[131]This is the diary entry which Karen Weddell introduced as a contemporaneous note as to events on 26 March 2019 as part of the Sarah Haines investigation. It was an appendices to the Investigation Report. We heard evidence from Ms Weddell. We entirely accept her evidence that the note is merely a record of discussions she had immediately after the incident. There is nothing to persuade us in any evidence before us that it was anything other than a summary as to what she had been told on the day having spoken to various people involved. There is nothing to support the assertion that the statements were wrongful and that Karen Weddell was untruthful in the recording of this contemporaneous note. To suggest that somehow this instigated the complaint against the Claimant is wrong and without foundation. For the avoidance of doubt, there is nothing to suggest that Ms Weddell would have recorded matters differently were the Claimant not Filipino. Issue 1(ix): Refusal to reconvene the Disciplinary Hearing to allow the Claimant to rely on evidence to help her case.

[132]As explained above, we now know that this relates to an allegation that there was a failure to allow an adjournment of the process to allow the Claimant to consider emails sent to her on the morning of the Disciplinary Hearing. We do not consider that this amounted to less favourable treatment. Caroline Dilks said that she would take those emails into account and in any event, the Claimant had ample time to consider them between 18 and 22 September 2020. Issue 1(x): In September 2020, the outcome of the Disciplinary Hearing being unfair and predetermined against the Claimant – by Caroline Dilks.

[133]There is no evidence to suggest in any way that the outcome of the Disciplinary Hearing, being the upholding of the allegations of misconduct against the Claimant, was unfair or premeditated. It is difficult to understand how the Claimant proposes to make out such an allegation. Yes the outcome went against her, but the matter was clearly carefully considered. The Hearing spanned two days, during which the Claimant was given every opportunity to present her case and ask questions of all witnesses involved. The process was elaborate and detailed. No outcome was provided on the day. Following the second Hearing date Ms Dilks considered the matter and reached her conclusions. She drafted a very detailed six page outcome letter explaining her reasoning. That reasoning was clear. The Tribunal concludes that there is no merit in this aspect of the Claimant’s claim at all. There is no evidence to support the suggestion and clearly no evidence that the outcome was in any way connected with the Claimant’s race or nationality. Issue 1(xi): The sanction imposed following the disciplinary was too harsh – removal as a Team Leader, denying the Claimant career progression, and did not take into account the Claimant’s exemplary record.

[134]The Tribunal concludes this is simply not supported by the evidence. In fact the evidence suggests otherwise. The disciplinary sanction was a final written warning and nothing else. We heard evidence that Ms Dilks considered the incident on 26 March to be sufficient to dismiss the Claimant, however, she chose not to because she thought both the delay and the Claimant’s previous record were sufficient mitigating circumstances. We accept Ms Dilks’ evidence in this respect. She was entirely clear. There is no evidence to suggest that race or nationality played any part in her decision making process or the sanction imposed. It is factually incorrect to suggest that the Claimant was removed as a Team Leader following the outcome of her disciplinary process. The Claimant gave evidence that around October 2020, she was essentially taken out of her Band 6 post and not allowed to work in gynaecology. This is also incorrect. In 2020 during the pandemic, the way Theatres were structured at the Lister hospital was altered and two Theatre sites were created. This resulted in all Theatre Nurses working on rotation between Robotics, Urology, Gynaecology and Main Theatre. The rotations were for three month periods and the Claimant was treated no differently to any other Band 6 Nurses. We accept the evidence that was put before us that this was not in any way related to the Claimant’s disciplinary process and was not in any way related to the Issue 1(xii): The delay of the Appeal process for both the Grievance and the disciplinary outcome.

[135]As is pointed by Ms Jennings in her submissions, the Claimant does not complain about the outcome of the Disciplinary Appeal. She does complain about delay in dealing with it. There certainly were delays, but these were mainly due to the Claimant as we have already outlined above. In this instance the Claimant was invited to six Appeal Hearings and only one of those was cancelled by the Respondent. It emerged during this process that the Claimant felt that by raising the fact of her own delays, there was implied criticism of her. The Tribunal must make clear that this is not the case. There is no criticism of the Claimant for cancelling numerous appointments, but the fact is, by doing so she largely contributed to the delay of those appeal processes. That is simply a fact. Therefore there cannot be any less favourable treatment because of that delay, albeit that a small part of it falls at the feet of the Respondent. In any event, there is no evidence to support any assertion that any delay was in any way connected to the Claimant’s race or nationality. Issue 1(xiii): In January 2021, the outcome of the Grievance Appeals not being upheld by Natasha Simper.

[136]The Tribunal has already dealt with this above under 1(v). This contradicts 1(v) in that there clearly was a Grievance Appeal and it was heard by Natasha Simper. There is no evidence before us to suggest that this outcome amounted to less favourable treatment because of her race or nationality. Ms Simper arrived at her decision following a lengthy Hearing, having listened to the Claimant present her case in great detail. The outcome letter deals with all of the Claimant’s sixteen appeal points. There is nothing to suggest in any evidence that the Tribunal has heard that the decision taken by Ms Simper was anything other than fairly and justly arrived at, or that it was in any way connected with the Claimant’s race or nationality. Ms Simper did feel strongly that there had been failings in the management of her Grievance and was forthcoming about this making some recommendations. There is no substance therefore to this aspect of the Claimant’s claim. Issue 1(xiv): Delay in providing hearing notes in Grievance and Disciplinary Hearings.

[137]It is difficult to see what the Claimant is complaining about here. It appears, and we are guided and helped by Ms Jennings’ submissions, that as there were no formal Grievance Hearings the Claimant must be referring to the minutes of her investigation meeting during the Jherico Ocampo management investigation, the Appeal Hearing minutes from the Sarah Haines Grievance and the Disciplinary Hearing minutes.

[138]The Claimant was given the minutes of her investigation meeting during the Jherico Ocampo management investigation. Pursuant to the Sarah Haines Grievance Appeal, the Claimant requested the minutes and these were sent to her. They were sent to her promptly and without undue delay, albeit that Ms Simper was on annual leave for a week.

[139]As to the Disciplinary Hearing minutes, these were provided timeously and without undue delay. There was therefore no delay which the Tribunal can find which could amount to less favourable treatment. In any event, the management of the process of providing these notes could not have been in any way connected to the Claimant’s race or nationality. Issue 1(xv): Alterations made to meeting notes within Investigation Reports.

[140]The Tribunal has already made findings in its Findings of Fact about this. There were some minor discrepancies in the Sue Hunt Report, a fact which Sue Hunt admitted and these were brought to the attention of Caroline Dilks prior to her arriving at her decision. It appears to be that the Claimant is suggesting that there was some fabrication or manipulation of the wording in the Sue Hunt Report to show her in the worst possible light and that that in some way influenced the outcome. There is no evidence to support that at all. There is also no evidence to support that the minor errors admitted to by Sue Hunt, both earlier and at this Hearing, were perpetrated maliciously and that the errors were in any way connected with the Issue 1(xvi): No support being given throughout the processes.

[141]As set out in our Findings of Fact, we do not consider that the Claimant was in any way disadvantaged by the fact that certain of the letters sent to her did not signpost the Employee Assistance Programme. As a matter of fact, the Claimant knew about this and could have availed herself of it. She suffered no disadvantage by virtue of the fact that some of the letters had not signposted this. This cannot amount to less favourable treatment. She suffered no disadvantage. In any event, the fact that some of the letters did not include the signpost is not in any way connected to the Claimant’s race or nationality. Issue 5(a): Fail to provide support to the Claimant during the Grievance process relating to her Grievance dated 17 March 2019.

[142]The Tribunal has already dealt with this. We do not consider that the failure to attach a signpost in respect of every letter sent to the Claimant to the Employee Assistance Programme deprived the Claimant of the use of that support. She was well aware of it and did not suffer any disadvantage or less favourable treatment. Issue 5(b): Fail to hold a Grievance Meeting.

[143]This is largely dealt with above at 1(ii). Save to say this is dismissed. The Claimant was invited on a number of occasions to a Grievance Meeting in respect of her Sarah Haines Grievance. In respect of the Jherico Ocampo Grievance this is dealt with in detail above. Issue 5(c): Fail to investigate the grievance thoroughly in accordance with the Respondent’s Policy.

[144]This is dealt with above. There is no evidence to support this and it is dismissed. Issue 5(d): Fail to provide an Investigation Report at the time of the Grievance Outcome.

[145]We heard evidence from Ms Taylor, the reason she did not provide the Sarah Haines Investigation Report along with the Grievance Outcome was because she was not asked to. Ms Potts as Head of HR was clear in her evidence that HR would not in general, as a matter of course, provide Grievance Investigation Reports to the person who had raised the Grievance. Only the outcome. She explained this was because it may inflame matters that they would be trying to resolve. The Claimant considers this approach to be unfair. The Tribunal does not agree. We understand why such reports are not generally provided. It is not a matter of Policy and we do not think that the failure to provide the Report amounts to less favourable treatment. In any event, the failure to provide it is not in any way related to the Claimant’s race or nationality. Issue 5(e): Failure to uphold the Claimant’s Grievance.

[146]The Claimant argues that the failure to uphold the Grievance is an act of race discrimination. There is no evidence to support this. The Grievance was not upheld, but a proper process was followed. The Respondent could have dismissed the Claimant’s Grievance but chose not to. The outcome was properly considered and there is nothing to suggest that it was in any way connected to the Claimant’s race or nationality. The decision was based on the contents of the Investigation Report produced by Mr Price and there is no suggestion and no evidence before the Tribunal that Ms Taylor arrived at her decision on any other basis. Issue 5(f) (g): Start an investigation into the Claimant as a result of her Grievance without a complaint having been received; and Delaying dealing with the Claimant’s Grievance.

[147]The Tribunal considers that it has dealt with these above. These fall into the earlier complaints. However, for the avoidance of doubt, we consider that these must relate to the Jherico Ocampo Grievance in the case of 5(f) and both Grievances in the case of 5(g). This had been dealt with adequately above. There is no evidence to support these allegations. Whilst there were delays, we consider the process followed was entirely sensible and appropriate. In any event, there is no evidence to support any suggestion that the process followed or the delays were in any way connected to the Claimant’s race or nationality. DIRECT RELIGION or BELIEF DISCRIMINATION Issue 5(e): Failure to uphold the Claimant’s Grievance.

[148]This relates to the Sarah Haines Grievance and is the only issue upon which the Claimant relies in support of her claim for direct religion or belief discrimination. The Claimant’s Grievance against Sarah Haines was not upheld. After careful consideration pursuant to Mr Price’s Report, Ms Taylor did not find any evidence of bullying and harassment by Sarah Haines as alleged by the Claimant.

[149]The incident in question, which included an altercation with Sarah Haines and formed part of the Claimant’s Grievance, revolved around arranging cover for a conscientious objection that the Claimant wished to pursue in respect of an abortion procedure. Sarah Haines disagreed with the Claimant about what she was responsible for preparing before the operation took place. The Claimant is Catholic and entirely properly and appropriately raised an objection to being involved in a procedure including abortion. That was never a matter of dispute. The Claimant’s religion had no bearing upon the Grievance Investigation and its outcome. Ms Taylor is also Roman Catholic. It is clear that the outcome of the Grievance against Sarah Haines was not in any way connected with the Claimant’s religion. The decision was based on the contents of the Investigation Report. There is no less favourable treatment. There is no suggestion or evidence to support the suggestion that the decision was reached and the decision was in any way connected with the Claimant’s religion.

[150]There was also an issue before us as to jurisdiction which was in the list of issues which formed part of E J Welch’s summary. We heard very briefly from Ms Jennings on this at the very end of her submissions and heard no evidence from the Claimant. As we have conducted an 8 day hearing and heard all the evidence and made detailed findings we do not propose to deal in detail with this save to say that where any of the claims are out of time we exercise our discretion to extend time in that we consider it just and equitable to do so. We consider that the Respondents who by now have gone through the process of defending the Claimants claims to have suffered no prejudice by this decision at this juncture in the proceedings. We consider it appropriate that the Claimant has had her claims aired and dealt with. We have dealt with them and they have no merit.

[151]For the reasons outlined above, the Claimant’s various claims have no merit and are dismissed.