Miss R Smith v Senior UK Ltd (T/a Senior Aerospace Thermal Engineering): 3304177/2024
EMPLOYMENT TRIBUNALS
Case No 3304177/2024
Between
Miss R SmithClaimantSenior UK Ltd (T/a Senior Aerospace Thermal Engineering)Respondent
Before
Employment Judge GrahamSelf representing Respondent: Ms C Urquhart (instructed by Counsel) for claimantDate 23 February 2026
JUDGMENT
[1]The complaints of harassment related to sex, automatic unfair dismissal, victimisation, and direct religious discrimination, as well as for notice pay, all fail and are dismissed in full.
REASONS
[1]ACAS Early conciliation took place in this matter between 16 January 2024 and 27 February 2024. The ET1 was filed on 19 April 2024 in which the Claimant complained of discrimination, victimisation and automatic unfair dismissal. At this time the Claimant was represented by a solicitor. The Respondent’s ET3 was filed on 18 June 2024 denying the claim.[2]The issues to be decided were clarified and agreed before Employment Judge Palmer at a preliminary hearing on 10 December 2024. The Claimant was represented by a solicitor at that time who agreed those issues on her behalf. The complaints were identified as automatic unfair dismissal due to whistleblowing; harassment related to sex; victimisation; and direct religious[3]We were provided with a hearing bundle of 260 pages, and witness statements from the Claimant, and Mark Pilborough and Jon Rowland of the Respondent. The Claimant produced further documents late including a supplementary witness statement; an audio recording from 29 June 2023, which was transcribed, to the extent possible, by the Tribunal; a statement dated 13 December 2023 that the Claimant had produced for the purpose of the disciplinary hearing on 18 December 2023; a longer version of the appeal outcome letter from January 2024 which was already in the bundle; and various photographs of the Claimant and her colleagues.[4]The Respondent concedes that the Claimant has made a protected act but not a protected disclosure. The Claimant’s allegations relate to a number of the Respondent’s employees, however it chose not to call three potential witnesses, both Simon Brown and Louise Willmore remain employed by the Respondent as supervisors, and Sue Rolls was previously employed in an HR role but left the Respondent up to 24 months earlier.[5]The Claimant is now a litigant in person. Whereas English is not the Claimant’s first language, her English is very good, and she has previously experienced issues with her mental health. We take all of this into consideration.[6]Due to the Claimant’s behaviour at the start of the hearing (described below) I performed a welfare check and asked the Claimant if she had taken any medication which may have impacted her understanding of the proceedings, and she confirmed that she had not.[7]Notwithstanding the above, Tribunal has approached the Claimant’s evidence with considerable caution. A number of factors materially undermine both the reliability and the credibility of her evidence.[8]Firstly, many of the matters now relied upon as constituting harassment were not raised contemporaneously. In several instances, the Claimant did not complain about the alleged conduct until many months later — and in some cases up to twelve months after the events said to have occurred.[9]In addition, there are a number of matters the Claimant did not raise at all during her employment even though she had the opportunity to do so and was asked repeatedly by HR to discuss her concerns.[10]The Tribunal considers the delay in complaining, and in some cases, the failure to complain, to be a significant factor. It is difficult to reconcile with the Claimant’s assertion that the incidents caused her significant distress at the time and suggests that the allegations have been reconstructed with the benefit of hindsight rather than arising from genuine contemporaneous concern.[11]Secondly, the Claimant’s witness statement did not address all the incidents she seeks to complain about. The omission of significant allegations from her written evidence, without explanation, combined with then introducing significant issues to the claim part way through the hearing. further undermines the consistency and reliability of her account.[12]Thirdly, the Claimant described experiencing harassment and victimisation beyond human imagination. The Tribunal considered that the degree of emotional impact described was markedly disproportionate to the nature and gravity of the incidents alleged, and that this tendency to overstate weakened the credibility of her account. The Claimant repeatedly asserted that she had been the victim of a sexual assault, however it became clear that there was no physical act relied upon – the Claimant was referring to things said to her.[13]The Claimant’s case also changed considerably during the hearing. Within the list of issues it was recorded the Claimant alleged that the dismissal was due to whistleblowing and because of her grievance about harassment, and due to her religion. During the hearing the Claimant sought to distance herself from the agreed list of issues and her own ET1, although I confirmed the draft version in her possession had not been filed with the Tribunal although it was similar to the one in the bundle which her solicitor had filed on her behalf.[14]The Claimant argued at various times her dismissal was also because she witnessed an American colleague having a medical crisis in the car park and she says she challenged the first aider about their response. This was a brand-new matter. The Claimant also said it was because she either knew or assumed that Ms Willmore was spiking the drinks of foreign workers. This was another new matter. Despite the seriousness of this alleged incident, the Claimant did not immediately complain about it at the time, and this seriously undermines the credibility of her account. Additionally, the Claimant claimed the dismissal was because the Respondent lost a contract because of a presentation she delivered in front of a client. This was also a new matter.[15]Leaving aside that these new matters did not make a great deal of sense, they were also not within the original claim nor the agreed list of issues, and were not raised during her employment either. It was a common feature of this hearing that the Claimant rotated the reasons she said she was dismissed, often forgetting some of the complaints she had brought and frequently changing her mind as to why she says she was dismissed.[16]The Tribunal also formed an adverse view of the Claimant’s evidence from her manner of giving testimony. In her oral evidence the Claimant disagreed with almost everything put to her by Ms Urquhart, the Respondent’s counsel, even when they appeared in writing, including things the Claimant had either said or authored herself. The Claimant frequently failed to respond directly to the questions put to her. Instead, she gave lengthy, discursive and narrative answers which were often deflective. On a number of occasions, she was evasive when challenged on inconsistencies or gaps in her evidence. This approach materially impaired the Tribunal’s ability to rely on her oral evidence.[17]By way of example, the Claimant was questioned in detail about some of the alleged harassment which she had not raised at the material time, nor had she mentioned them in a grievance interview on 12 September 2023. The Claimant’s answers ranged from she wasn’t given the opportunity to do so, and when it was pointed out that she had complained that the grievance meeting was 4 hours 15 minutes long, the Claimant changed position to state she either could not recall what she raised, or that she had raised the issues but they did not appear in the minutes which she also claimed not to have received. This manner of answering questions was repeated throughout the Claimant’s oral evidence and it made it incredibly difficult for us to make findings of fact as both the nature of the claim, and the Claimant’s evidence, changed from minute to minute.[18]A further feature of concern was the Claimant’s willingness to advance highly serious and inflammatory allegations against others which were wholly unsubstantiated and, in many instances, irrelevant to the issues before the Tribunal. By way of example this included assertions that Louise Willmore had previously strangled someone in the workplace, and that she had spiked the drinks of foreign workers. None of these allegations formed part of the pleaded case, no corroborative evidence was presented, they appear not to have been reported at the time, and they appeared calculated to discredit individuals rather than to assist the Tribunal in resolving the matters in dispute.[19]The Claimant also made a series of allegations which the Tribunal found inherently implausible. These included allegations that her former solicitor had been “bought off” by or conspired with the Respondent; that someone (or impliedly the Respondent) had hacked her mobile telephone and computer; that the Respondent had somehow turned members of the local community against her and silenced her; and the Respondent’s CEO had exerted his tremendous influence in the town and blocked her from accessing her GP medical records. No evidence was provided to substantiate any of these assertions. The Tribunal regarded them as fanciful and illustrative of a broader tendency by the Claimant to make extreme and speculative allegations without a proper evidential basis. The ease at which the Claimant was able to make such serious allegations without evidence, caused us to seriously question whether what the Claimant was telling us was the truth.[20]We observed for ourselves that the Claimant claimed not to have received documents from the Respondent irrespective of the manner they were sent to her, be that by post, email, or hand delivery. This appeared to us to be wholly unlikely. Within the hearing the Claimant sent additional late disclosure and then claimed that she had not seen some of it when clearly it had come from her. The Claimant suggested that she had been hacked and these documents had been provided to the Tribunal (or the Respondent) by a hacker which we found to be highly implausible and we do not accept her evidence. The bundle contained photographs of members of staff which were not relevant to the claim or issues, and the Claimant denied providing them although clearly she had done so by taking them off of Facebook profiles, and some of the photographs of her colleagues appeared to have been taken by the Claimant in the street.[21]Taking all these matters together — the significant delay and failure to raise. complaints, the omission of allegations from her witness statement, the exaggeration of her emotional response, the evasive and unresponsive nature of her cross-examination evidence, the introduction of irrelevant, improbable and inflammatory allegations — the Tribunal concludes that the Claimant was not a reliable or credible witness. Where her evidence is unsupported by contemporaneous documents or independent testimony, the Tribunal does not accept it.[22]The Tribunal has noted that the EAT in Mayanja v City of Bradford Metropolitan District Council [2025] EAT 160 cautioned tribunals against making an overarching assessment of credibility that is then relied upon in all further assessments [paragraphs 38 and 39]. However, this case is unfortunately one of those very rare cases where the Claimant’s account has been repeatedly so implausible and so inconsistent, that it renders her evidence unreliable generally. We have very little confidence in the veracity of the Claimant’s account.[23]Within the ET1 the Claimant ticked the box for notice pay. She was previously directed to provided amended pleadings dealing with that complaint. The Claimant did not do so. The potential claim was raised by the Respondent in these proceedings, the Claimant said she was still claiming notice pay, but she did not put the complaint to any of the witnesses, and she did not deal with it in her witness statement either. We cannot make findings on a complaint which has not been pursued - we therefore dismissed it. Conduct on 30 January 2026[24]The judgment was due to be handed down on 9 December 2025 however that was postponed due to the absence of one panel member. This was rescheduled for 30 January 2026 at 2pm. This was confirmed to the parties in writing. The Claimant nevertheless arrived at the Tribunal before 10am and said she wanted to see the judge there and then. The Claimant was told this was not possible and she left the building, returning at 2pm.[25]During the oral decision the Claimant sought to interrupt me, and I asked her not to do so. During that hearing, at the end of the findings of fact, but before the conclusions and decision, at 3:01pm the Claimant got up and said she was leaving, and that she had heard enough and was going home to her children. I encouraged the Claimant to stay, but she declined.[26]In a letter dated 13 February 2026 to the Tribunal, the Claimant has alleged that I had said to her that she was not a Muslim and that she was unable to prove her religion. This is untrue. The Tribunal’s finding, which the Claimant would have heard in open court, was that the Respondent did not know that the Claimant was Muslim at the material time. No-one has disputed the Claimant’s religion. This was a scandalous allegation to make towards the Tribunal. List of Issues 1. Jurisdiction - EQA claims1.1 Were the Claimant’s discrimination complaints presented within the time limits set out in section 123 of the EQA? The Tribunal will decide:1.2 Was the Claimant made to the Tribunal within three month (plus early conciliation extension) of the acts complained of?1.3 In relation to any complaints which are out of time, do they form part of a continuing act extending over a period of time?1.4 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?1.5 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:(i) Why the complaints were not made to the Tribunal in time;(ii) In any event, whether it could be just and equitable in all the circumstances to extend time. 2. Automatic unfair dismissal – Section 103A of the Employment Rights Act 1996.2.1 Was there a disclosure of information?2.2 The Claimant relies on the disclosures of information submitted to the Respondent in her formal grievance letter dated 26 July 2023, pertaining to her complaint about sexual harassment and bullying that she was allegedly subjected to by Simon Brown, NB, and Louise Willmore.2.3 The Claimant further relies on the disclosure of information submitted to SB about health and safety concerns in the form of Whatsapp messages on 29 June 2023, being a series of messages to Mr Brown after leaving work to explain that she did not believe Thermal Engineering was a safe environment for work in as she had not been given training to work with a stroke survivor and there was no risk assessment to sustain the safety of the colleague.2.4 Were these disclosures of information, or were they allegations?2.5 In the Claimant’s reasonable belief, did the information disclosed tend to show one of the following:2.5.1 That a person has failed, is failing, or is likely to fail to comply with any legal obligation to which he is subject (section 43B(i)(b) ERA 1996); [the Claimant contends that the Respondent breached its legal obligations pursuant to section 39(4)(d) of the Equality Act 2010 (EA 2010) and section 2(1) of the Health and Safety At Work Act 1974 (“HSWA 1974”) or2.5.2 That the health or safety of an individual has been, is being or is likely to be endangered (section 43B(1)(d) ERA 1996)?2.5.3 If so, did the Claimant reasonably believe that the disclosures were made in the public interest?2.6 If so, to whom did the Claimant make the alleged qualifying disclosures? [It is accepted that the matters referred to at 2.2 and 2.3 above, were made to her employer pursuant to section 43C ERA 1996]2.7 Was the Claimant dismissed? It is accepted that she was dismissed.2.8 If so, was the sole or principal reason for the Claimant’s dismissal that she had made a protected disclosure? 3. Victimisation - Section 27(2) Equality Act 20103.1 What is /are the alleged protected act(s) relied upon by the Claimant ?3.2 The Claimant relies on her grievance dated 26 July 2023?3.3 Does this/do these amount to a protected act for the purposes of section 27(2)(d) EQA 2010?3.4 Was the Claimant subject to a detriment? The Claimant relies on her dismissal.3.5 If so, was the Claimant dismissed because she had done the protected act(s) set out in paragraph 3.2? 4. Harassment – Section 26 of the EQA4.1 The Claimant alleges that she was subjected to harassment related to the protected characteristic of sex. The Claimant relies on the following alleged conduct set out in paragraphs4.2 to 4.10. 4.2 On 29 September 2022, the Claimant asked Mr Brown (Line supervisor) if he would like anything from Morocco as she was going on holiday. To which he responded “bring me women, I love playing with them”. The Claimant replied saying she could not do that. Mr Brown then said, “maybe you instead then”.4.3 On or about 29 October 2022 the Claimant attended leaving drinks for a colleague in which Mr Brown was also in attendance. Mr Brown said to the Claimant “I am meeting women on the internet for sex as I have needs, but you are special”.4.4 On 1 November 2022, Louise Willsmore (acting supervisor and event coordinator with the longest period of service within the company), asked the Claimant if she had spent the night with Mr Brown. Ms Willmore went on to say that Mr Brown had shown her pictures of himself wearing a mask whilst nude and she went on to tell the Claimant how big his private part is and that they are best friends.4.5 On 5 April 2023 the Claimant complained to the Respondent’s HR official at the time, Sue Rolls. The complaint pertained to Simon Brown, Louise Willmore and Mark Dearman (metallic operator) who made inappropriate unprofessional and intimidating remarks towards the Claimant. Sue Rolls failed to provide any advice regarding procedures or policies that the Claimant could rely on. Instead, Sue Rolls advised the Claimant to talk to an “imaginary husband” to help her through the harassment she is subjected to.4.6 On 10 April 2023 the Claimant was struggling with a task so she waited for Mr Brown to finish his meeting to he could help her. Once Mr Brown had finished his meeting he approached the Claimant’s desk at around 3.45 pm and she demonstrated the issues she was struggling with. Mr Brown then responded with “I should spank you hard on your butt”.4.7 On 12 May 2023, during the Claimant’s lunchbreak, she asked if her colleagues wanted any food from McDonalds. Mr Brown approached the Claimant and said “I would like you to bring me women, as my testosterone levels are so high, and my needs must be met”. Mr Brown then went on disclose that he meets women on specific websites for sex and he had one night stands with some of their colleagues. The Claimant then said comes from a different culture, and her parents had been married for 65 years, so she believes in love and sincere relationships, she then proceeded to walk away.4.8 On 30 May 2023 the Claimant was suffering from a bad cold and resorted to having to wear a safety mask while performing a task, which made breathing very difficult. The Claimant then told Mr Brown that she was feeling unwell and asked if she could go home. Mr Brown then told the Claimant to fill in the sickness absence form and “fuck off”. The Claimant then burst into tears as she walked past Ms Willmore who was laughing at her.4.9 On 14 June 2023 the Claimant had a meeting with Mr Lee Brand (stream manager). Mr Brown was also present at the meeting. During the meeting Mr Brown made a comment that she is rubbish and not as good as may believe.4.10 The Claimant was dismissed and she relies on this as an act of harassment.4.11 Did the conduct set out at paragraph 4.2 to 4.10 occur?4.12 If so, did that conduct amount to unwanted conduct relating to the Claimant’s protected characteristic of sex?4.13 If so, did the acts above have the purpose or effect of:4.13.1 Violating the Claimant’s dignity? Or4.13.2 Creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant?4.14 In deciding whether the conduct had the relevant purpose or effect, account should be taken of:4.14.1 The Claimant’s perception.4.14.2 The other circumstances of the case.4.14.3 Whether or not it was reasonable for the conduct to have that effect. 5. Direct discrimination on grounds of religious belief, section 13 of the Equality Act 2010.5.1 What is the Claimant’s protected characteristic? She relies on the fact that she is a Muslim which is a protected characteristic under section 10 of the Equality Act.5.2 Did the following acts take place?5.3 The Claimant contends that her dismissal was an act of direct5.4 If so, were they acts of less favourable treatment towards the Claimant, when compared with a real or hypothetical comparator?5.5 If so, was the alleged less favourable treatment because of the Claimant’s protected characteristic? or does the Respondent have a non-discriminatory reason for any less favourable treatment.5.6 Who is the Claimant’s comparator?5.7 The Claimant relies on the following comparators - Aleska, Lipingren, and Pawanpreet Reyatt who are non Muslims who frequently use company machinery and company materials to manufacture products that were not work related but they were not dismissed for it. 6. Remedy 6.1 If any of the claims are upheld:a. Would it be just and equitable to award the Claimant any compensation?b. Is the Claimant entitled to an award for injury to feelings and, if so, what level?c. Is the Claimant entitled to any other award for financial loss?d. Is the Claimant entitled to a recommendation?e. Is the Claimant entitled to a declaration?
Findings of fact
[27]From the information and evidence before the Tribunal it made the following findings of fact. We made our findings of fact on the balance of probabilities taking into account all of the evidence, both documentary and oral, which was admitted at the hearing. We do not set out in this judgment all the evidence which we heard but only our principal findings of fact, those necessary to enable us to reach conclusions on the issues to be decided.[28]Where it was necessary to resolve conflicting factual accounts, we have done so by making a judgment about the credibility or otherwise of the witnesses we have heard based upon their overall consistency and the consistency of accounts given on different occasions when set against any contemporaneous documents. We have not referred to every document we read or were directed or taken to in the findings below, but that does not mean they were not considered.[29]The Respondent is a manufacturing business. The work is divided between a soft function where fabric materials are utilised, and also a metallic division which is where the Claimant worked. The products made in that division are produced on behalf of various clients including those in the aerospace industry. The Claimant was employed as a Metallic Operator from 6 June 2022 until 22 December 2023, although the Claimant had worked for the Respondent many years earlier. The Claimant is of Moroccan national origins and she tells us she is of the Muslim religion.[30]Samantha Ginger, the Respondent’s HRBP held a code of conduct training session on 26 April 2023 during which the Claimant said it did not reflect what was happening on the shop floor and she said that trust and respect was not happening and there was bullying. The Claimant was asked to stay behind after the session with a colleague so that her concerns could be discussed however she was reluctant to say what had happened or who had done it other than she had been called a gold digger, but she would not say who said it. Ms Ginger met with the Claimant on 2 May and 16 May 2023 to again try to discuss these concerns with her however on both occasions the Claimant provided little detail and said she wished to remain anonymous but said that there was a gang of people at work and she provided four names.[31]On 29 June 2023 the Claimant was asked to sit next to a colleague who had returned to work after previously having had a stroke which we understand had left her non-verbal. The Respondent had made adjustments for the member of staff and provided a white board for her to use to communicate with colleagues. The Claimant refused to work alongside her and walked out of work.[32]Simon Brown (one of the team leaders) telephoned the Claimant and left her a voicemail to ascertain her whereabouts. The voicemail also captured a subsequent conversation between Mr Brown and Ms Ginger from HR in which he expressed frustration with the Claimant’s behaviour by walking out, and Ms Ginger was recorded as saying words to the effect that the Claimant was a bloody pain in the arse.[33]Mr Brown also messaged the Claimant to ask if she would be returning the next day to which she replied: “Hello Simon, no need to apologise, I know how busy you’re!! Firstly I have shared my concerns with Tina, before making my decision to walk out her response was no another bench available for me!!!!!!!! I’m totally disappointed as there’s no risk assessment being done, nor the staff being told how to respond, if situations escalate with (Mrs L). I have no training in Healthcare for her condition full stop.”[34]In a separate exchange on the same date the Claimant said: “Dear Simon, That’s correct. I walked out this morning, simply as I didn’t receive any training in order to work with the stroke Survivor. In any work environment you expect to be given informations how to deal with cases like that, and more importantly you’re constant feedback about my work performance, as according to you, everything I touch it’s wrong. That’s your statement after I left again. Finally, I don’t believe the thermal engineering is safe environment to work at. Despite all the efforts to self problems amicably, especially by talking to HR, as some of the advice is caused me more confusion! As conclusion of all the above, I am self certified not fit for work.”[35]The Claimant relies upon these two messages as protected disclosures.[36]The Claimant went on sick leave before commencing a period of annual leave and she then returned to work on 4 September 2023. In the meantime, on 26 July 2023 the Claimant sent an email which the Respondent concedes was a protected act, and which the Claimant says was a protected disclosure which the Respondent disputes.[37]In her email the Claimant said she was suffering from stress and anxiety, she had been bullied, and there was no one present in HR for her to engage with. The Claimant relies upon the following three paragraphs as a protected disclosure: “Although I have raised my concerns about health and safety in order to perform my work safely, none of my concerns were taken seriously, as my role not in Healthcare, nor trying to deal with stroke survivor. As you may aware of the importance of planning a safe work for employee employees by employers, particularly risk management and not to put anyone at high risk. Therefore, it is important for Mr Lee (VSM) and Mr Simon Brown (team leader) to follow the guidelines for taking a complaint more seriously and taking the necessary steps to help. There is, of course, a darker side to this phenomenon, to silent people, with high control of intimidation. It come to my attention it’s a cultural behaviour is hugely impacting on individuals from different backgrounds.”[38]Mark Pilborough (Operations Director) who would later go on to dismiss the Claimant, did not have sight of the Claimant’s email of 26 July 2023 until these proceedings.[39]The Respondent wrote to the Claimant on 31 August 2023 inviting her to attend a meeting with Mr Pilborough, and Ms Ginger, in order to discuss her concerns. The Claimant was asked not to attend work, and she was notified of her right to be accompanied at the meeting which was due to take place on 6 September.[40]Instead, the Claimant attended work on 4 September and claimed not to have received the letter. This was a consistent theme with the Claimant alleging that she had not received letters and emails from the Respondent which we found to be unreliable. The Respondent resorted to hand delivering correspondence to the Claimant because of this.[41]Upon arriving at work on 4 September, the Claimant was met by Mr Pilborough who handed her the invitation letter which he explained to her and she was sent home from work on full pay. The meeting took place on 12 September 2023.[42]The day before the meeting the Claimant emailed the Respondent in which she said she could not understand the importance of the meeting in the first place, she said she had concerns why she was chosen to work with a stroke survivor, and she said it was a deliberate plan to trouble her. The Claimant said the Respondent had failed to deal with her complaint, the advice she had been given was unrealistic, and she said Mr Brown made sexual jokes which were unwanted and not funny.[43]The Claimant attended the meeting on 12 September unaccompanied and when offered the opportunity to bring a colleague she rejected this as she said all the employees were spies on the side of the employer. The Claimant would not answer questions about the messages she had been sending to Mr Brown, and she repeated that she walked out of work on 29 June 2023 as she had not received training to work with a stroke survivor and she did not believe that it was a safe work environment.[44]The Claimant discussed the feedback about her work, and she said that Mr Brown called her rubbish, she was not as good as she believed, and she was trash. The Claimant later complained that another supervisor criticised her work and said it could cause an airplane to crash.[45]The Claimant said that in October 2022 Mr Brown talked about having very high testosterone and said that his performance in bed was very good, and when she discussed going to Morocco, she asked him if he wanted her to bring to bring anything back and he said to bring her back women. The Claimant said it made her feel like he saw every woman as an object, however the notes also record that the Claimant said if Mr Brown had asked her out for a meal as a genuine man she would have accepted. The Claimant also said when she wanted to go home early as she was sick Mr Brown filled out for a form for her and said she should get the fuck out of here. Mr Pilborough said he would investigate it and that no one should be spoken to in that manner.[46]The Claimant said the gold digger comment was made about her by Mark Dearman when she was complimented on the shopfloor by a client but she could not remember when it happened. The Claimant repeated she thought people were watching her social media and spying on her.[47]The Claimant repeated her allegations that there was a gang at work which included Ms Willmore, and she referred to the length of time certain members of staff had worked there. The Claimant said that Ms Willmore had strangled someone at work on the shop floor, however she had not witnessed it. The Claimant also accused Ms Willmore of spying on her with others.[48]The Claimant said she went to speak to Sue Rolls in HR to discuss her concerns however Ms Rolls said it must be hard being a single woman and that she should talk to an imaginary husband in her head because that is what she does. There was discussion about potentially moving the Claimant to the soft division however she resisted that suggestion.[49]The Claimant’s interview lasted for four and a quarter hours and the notes of the meeting, whilst not verbatim, demonstrate a thorough discussion with the Claimant about her concerns. The Claimant says that she tried to raise matters occurring at work related social events, specifically comments made by Mr Brown to her, however she says Mr Pilborough told her he could not consider matters outside of work. Mr Pilborough says he does not recall that however it is something he would normally say about things allegedly occurring offsite.[50]We have been referred to the grievance outcome letter of 29 September 2023. This was a particularly thorough investigation. Mr Brown was interviewed, and he denied the allegations against him save that he admitted telling the Claimant she could sign a form and then fuck off once she had signed it, and they had spoken afterwards and soothed it over. Mr Brown also admitted telling the Claimant words to the effect that she was not as good as she believed with respect to her work.[51]Ms Willmore was also interviewed and denied all the allegations about her. It was clear that the Claimant and Ms Willmore were not friends as Ms Willmore said she blocked her on social media and she felt that the Claimant did not like the fact she was getting training, and they had not seen eye to eye previously.[52]Ms Rolls from was also interviewed and confirmed that she had spoken to the Claimant following her return to work on 4 April 2023 and recommended having a conversation with an imaginary person in her head, but she denied saying an imaginary husband.[53]Mark Dearman could not be interviewed as he left the Respondent on 27 July 2023 before the Claimant’s email which triggered the meeting.[54]In a decision letter dated 29 September the Claimant was informed that her complaint about Mr Brown telling her “if you just want to sign that and you can fuck off” was upheld as he admitted stating those words as another word for leave, and whereas swearing was not appropriate at work there was no malicious intent.[55]The complaint that Mr Dearman called the Claimant a gold digger was not upheld as he could not be interviewed and Mr Brown denied that the Claimant raised it with him.[56]Whereas the Claimant had alleged that Ms Willmore told her she had grabbed someone by the neck, this was rejected as she denied it and there was no supporting evidence, moreover the Claimant had not even witnessed it.[57]The complaint about Ms Rolls telling the Claimant to have a conversation with an imaginary husband was rejected as she denied saying husband but had tried to be supportive by saying she should talk to people outside of work or if it helps and imaginary person, and it was found that there was no malicious intent.[58]The complaint that in October 2022 Mr Brown commented to the Claimant he had very high testosterone, his performance in bed was very good, and he asked her bring him back women from Morrocco, was rejected as there was no evidence or witnesses to support the allegation.[59]Mr Pilborough also rejected a complaint that staff had told the Claimant she would make a great couple with Mr Brown and could share bills, and it was noted that in the meeting of 12 September she had said if he had asked her out on a date as a genuine man she would have accepted. It was recorded that there were no witnesses or dates to support the complaint so it could not be upheld.[60]The Claimant had complained about being asked to sit next to someone who had experienced a stroke, saying she should have received training and felt traumatised. Mr Pilborough confirmed the Claimant was not required to work directly with them, only to work in the soft division as per her contract, and he said the colleague had been risk-assessed and cleared by their GP and occupational health, and he said she could have raised concerns instead of walking out. The Claimant was also advised that refusing to work with a disabled colleague could amount to disability[61]Mr Pilborough partially upheld the complaint that Mr Brown told the Claimant that she was not as good as she believed with respect to her performance at work, but he rejected that she had been described his rubbish or trash. It was acknowledged how this would have made the Claimant feel, but it was not said with malicious intent, but nevertheless Mr Brown would be spoken to about his choice of language.[62]It was recorded that Mr Kinsella had raised performance concerns with the Claimant and team leaders were entitled to discuss her performance with her given the parts they make in the metallic division are critical to the aerospace industry and must meet certain specifications. The complaint was rejected.[63]The complaints about spying, lack of confidentiality, and a broken tool were also investigated but rejected. The Claimant was notified of her right to appeal the outcome, but she did not do so. The Claimant disputes ever receiving the outcome or the notes of the meeting, however Mr Pilborough says that he handed the outcome and minutes to the Claimant in person. We accept the evidence of Mr Pilborough, he has been an honest and candid witness throughout, the Claimant has a propensity to deny receiving documents whichever way they are given to her, we have found her evidence to be unreliable and more over at no point after it did she ever chase up the decision, which suggest to us she knew the outcome. Moreover, during the disciplinary appeal process on 23 January 2024, the Claimant’s union representative appeared to acknowledge the Claimant had the outcome of the grievance.[64]Following the grievance meeting on 12 September, Mr Pilborough instructed the Claimant not to speak to Mr Brown or Ms Willmore and advised her that a new supervisor would shortly start work. The Claimant was still managed by Mr Bland, and there were a number of other supervisors, including Tina in the Soft division and also Daniel Kinsella.[65]We have been referred to an internal statement produced by the Claimant’s manager Mr Bland dated 2 October 2023. Within the statement he confirms that on 28 September 2023 he observed the Claimant had a metallic piece of work or trophy on her desk. The Claimant had written on it. We understand from the Claimant’s evidence she had written on it “love moi” and her name and “nice to have you back” which she says was feedback she received from colleagues upon her return to work.[66]Mr Bland spoke to two of the Claimant’s colleagues to ask if they had seen her making the item to which they confirmed that they had seen her making something. Ms Willmore was also spoken to and confirmed she saw the Claimant taking metal from a scrap bin where she was working.[67]Mr Bland then spoke to the Claimant about it to which she said she had made herself a trophy when she came back to work from sick. Mr Bland said he would have to take the trophy away and he explained to the Claimant no-one should be making parts in work time or using company material or equipment. The Claimant was resistant and took it to a bench and attempted to clean the writing from it and then squashed it before handing it over.[68]The Respondent’s Code of Conduct addresses standards behaviour and it provides a list of non-exhaustive examples of conduct that would normally be subject to the disciplinary procedure, and these include abuse, misuse on neglect of company property or facilities, and also persistent use of company facilities and equipment for personal reasons during work time. Examples are provided of gross misconduct which would entitle the Respondent to summarily dismiss and these include theft, fraud, deliberate damage or misuse of property, and conduct likely to bring the company into disrepute.[69]Mr Pilborough’s oral evidence to us, which we have accepted, is that the use of company equipment is taken very seriously because the machines are set up to certain specifications, and the spot welder used to make the trophy was designated to one aviation customer for their specific parts so should not be used to weld other material, and if those parts were not welded adequately it could cause a serious safety issue and give the Respondent a bad name.[70]An investigation was conducted by Adam Smeeton who spoke to the three witnesses, two of whom confirmed they had not seen the Claimant making the item but had seen it on her desk and writing on it. Ms Willmore repeated she had seen the Claimant taking metal from scrap and making the item.[71]The Claimant was given the opportunity to give her version of events at a meeting on 29 November 2023. The Claimant confirmed that she made a trophy using metal from the scrap bin, she had done this in company time as she did not have enough work to do and there was no one to ask for more work. The Claimant said she could not ask Mr Brown due to past issues, and she said two other employees helped to make the trophy. Ms Willmore was re-interviewed and was asked if she had seen anybody helping the Claimant make the item to which she said no one was helping her. The two colleagues were spoken to, both denied helping her although one accepted she helped bend something but didn’t know what the Claimant was making.[72]On 13 November 2023 Mr Smeeton concluded that the Claimant had breached the disciplinary policy by way of committing theft which was unauthorised use of company material; misuse of company property by using the spot welder which was unapproved for the job, and could have caused loss to the Respondent; and unauthorised creation of a part during company time, which was deemed theft of company time.[73]The Claimant was notified as a case to answer and on 4 December 2023 and that she would be invited to a disciplinary hearing. On 14 December the Claimant provided a personal statement in which she referred to the item repeatedly as a trophy, and whereas she now says she was using the Respondent’s own language, she also stated “as I am creative and very sustainable believer, didn’t see any wrong doing of making heart trophy, as symbol of love, kindness and compassion, sending a lovely message to all my colleagues – some of them even complimented and contributed by recommending the right tools to use.” Whereas the Claimant in the Tribunal hearing argued the item was a tool holder for use at work, at the material time the Claimant did not use that description at all, instead referring to it repeatedly as a trophy. The Claimant she that “after completing the trophy I placed it on my desk and used it for keeping some of the cutting equipment.”[74]The Claimant complained there was a lack of supervision and she was not told who she should approach for work for an hour and a half on that day. The Claimant said she was scared and nervous after having returned to work after experiencing bullying, and she alleged that Ms Willmore encouraged her brother to sabotage her work to make her quit her role. The Claimant also alleged a lack of knowledge of the code of conduct and said that others should be investigated as well.[75]The disciplinary hearing on 18 December 2023 was chaired by Mr Pilborough with the Claimant represented by trade union official Satwinder Bachu, and it considered allegations of misuse of company materials. The Claimant said she was told not to approach certain managers, she panicked, and decided to make “something nice” but there was no intention to steal believing the materials were being discarded, and that colleagues did not stop her. Mr Pilborough noted the materials were sold and using them for a trophy was not a business purpose. The Claimant cited menopause symptoms and confusion, insisting the code of conduct did not expressly forbid such use. The Claimant’s union representative described the incident as an honest mistake.[76]The Claimant was summarily dismissed by letter dated 22 December 2023 on the basis that she had committed gross misconduct by taking material belonging to the company without prior agreement; using the material to manufacture a trophy for herself in work time; and using plant equipment designated for aerospace products for non-aerospace application. The Claimant was notified of her right to appeal.[77]The Respondent accepts that the Claimant is Muslim, but it disputes that Mr Pilborough knew that she was at the time of the decision to dismiss. The Claimant was asked about this in her evidence and her replies were evasive and deflective. The Claimant said that the Respondent knew she was Muslim as she filled in a new starter questionnaire. We were not given sight of this, moreover Mr Pilborough performs a senior role in the Respondent and he does not get involved in checking questionnaires when people join.[78]The Claimant then referenced a breakfast meeting near the start of her employment where she says she mentioned to Mr Rowland, the CEO, that the food had not been suitable as a bacon roll had been provided. Mr Rowland has no recollection of the conversation, however he did not dismiss the Claimant, it was Mr Pilborough and the Claimant did not advance he was at the meeting.[79]The Claimant was asked a number of times how Mr Pilborough would have known she was Muslim. The Claimant repeated he knew that she was Muslim as she is from Morrocco which is a Muslim country. The Claimant was asked whether she told Mr Pilborough that she was from Morrocco or whether she specifically told him that she was Muslim, however she suggested that everyone at work knew she was Muslim. The Tribunal observes that assumptions based on national origin cannot establish knowledge of religion, and we are not persuaded that Mr Pilborough knew of the Claimant’s religion at the time of dismissal.[80]The Claimant was asked about her three comparators whom she alleged had used work material and equipment to make items without being disciplined. The Claimant said that they were non-Muslim but could not corroborate that other than by saying one of them was married to an English man. We simply observe that being married to someone English does not prevent someone from being Muslim. We do not have sufficient evidence before us to find whether any of them have a religion, or what it might be.[81]Mr Pilborough’s evidence was that the three individuals relied upon by the Claimant were not in a comparable situation as they had asked permission to make tool holders during a 5S programme to improve housekeeping, and permission was given for them to do so. The evidence of Mr Pilborough was that the Claimant had not sought permission and she had produced a trophy personal item not a work tool holder. We noted that throughout the internal disciplinary proceedings the Claimant had referenced the item as a trophy produced to demonstrate love, albeit she said she had used it to put tools on. It was only by the time of these tribunal proceedings that the Claimant insisted that it was a tool holder and not a trophy, contrary to what she had been telling the Respondent previously.[82]We find that the correct comparator would be someone not Muslim who had made a trophy without permission using work materials and equipment in work time but who was not dismissed. The comparators relied upon are not true comparators as they were not in a materially similar situation to that of the Claimant having obtained permission to make a tool holder whereas the Claimant made a trophy without permission.[83]The Claimant filed an appeal in which she cited her clean disciplinary record, she alleged her dismissal was retaliation for complaining about sexual harassment; and she argued the handbook did not forbid using materials. The Claimant said the trophy was a goodwill gesture; she said she had shown remorse, and the penalty was too harsh. The appeal took place on 23 January 2024, chaired by the CEO Mr Rowland with the Claimant again represented by Satwinder Bhachu, and she was allowed her to fully present her case.[84]The Claimant denied theft and referred to sexual harassment and bullying but she accepted that her complaints had been investigated but said she was unaware she could appeal. The Claimant argued the code of conduct did not mention recycled materials to which Mr Rowland replied it did not need to. The Claimant admitted making the item in work time with work materials without seeking permission, and claimed others had done similar, and said the trophy was to boost morale. The Claimant repeated her earlier comments that there was no supervisor to ask which Mr Rowland agreed to look into.[85]On 24 January 2024 the Claimant was informed that appeal had been dismissed and the basis that her conduct constituted gross misconduct. Mr Rowland advised the Claimant she had been aware how to appeal the grievance outcome from September 2023, and the Claimant was aware there were other managers she could have communicated with on the floor on the date she manufactured the trophy. Submissions[86]The Respondent says that the Claimant’s evidence was confused, inconsistent, and at times implausible, including serious but unsupported allegations (including drink‑spiking). It says that many allegations now relied on were not raised during employment or the grievance process, despite ample opportunity to do so. The Respondent invites us to exercise caution in preferring the Claimant’s evidence and in drawing adverse inferences from the non‑attendance of certain witnesses, relying on Royal Mail Group Ltd v Efobi [2021] UKSC 33.[87]With respect to the time limits, the Respondent accepts that the dismissal and notice pay claims are in time, however it says that the sex‑related harassment allegations (issues 4.2–4.9) occurred between September 2022 – June 2023 and are out of time. The Respondent opposes any continuing act arguments relying on Hendricks v Metropolitan Police Commissioner [2003] IRLR 96; Aziz v FDA [2010] EWCA Civ 304 and Lyfar v Brighton and Sussex University Hospitals Trust [2006] EWCA Civ1548.[88]The Respondent also it opposes any just and equitable extension due to a lack of explanation for delay; prejudice due to inability to investigate matters not raised contemporaneously; the Claimant had union support (from August 2023) and solicitors (from January 2024)., and it relies upon Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640.[89]As regards the sex related harassment complaints, the Respondent says there are three different elements to the statutory test and a tribunal should specifically consider: What is the unwanted conduct? What was its purpose or effect? And was that conduct related to the claimant’s protected characteristic? If the tribunal concludes that there was unwanted conduct related to a protected characteristic, which has the purpose of violating the claimant’s dignity, or of creating the prohibited environment, the conduct would, as a matter of law, constitute harassment.[90]As to what is meant by purpose the Respondent says that this is equated with intent. The Respondent says that purpose and effect must be considered separately, and as regards effect the Respondent reminds us there is both a subjective element and also an objective element and we should ask if it was reasonable for the conduct to have violated dignity or creating the proscribed environment. We are further reminded that trivial acts that cause minor upset should not be included in the concept of harassment. Further, the Respondent says that an actual dismissal is capable of amounting to an act of harassment.[91]The Respondent refers us to Richmond Pharmacology v Dhaliwal [2009] IRLR 336; Pemberton v Inwood [2018] EWCA Civ 564; Grant v HM Land Registry [2011] EWCA Civ 769; and Urso v Department for Work and Pensions UKEAT/0045/16.[92]The Respondent says that much of the alleged conduct did not occur; it did not relate to the protected characteristic of sex; it did not have the required purpose or effect; and several incidents were raised very late or only in the ET1; they were not raised at all during grievance discussions; and the allegations against Mr Brown about her performance or leaving work are accepted as rude or brusque in part, but are said to be work‑related management conduct, not sex‑related; and the allegations against Ms Willmore (including drink‑spiking) are implausible and unsupported. The Respondent accepts that a dismissal can amount to unwanted conduct, but here it denies it was related to sex.[93]With respect to automatic unfair dismissal for whistleblowing, the Respondent reminds us that there must be a disclosure of information; the worker must believe it was made in the public interest; that belief must be reasonably held; the worker must believe that the disclosure shows one of the matters within s. 43B(1)(a)-(f) Employment Rights Act 1996; and that belief must also be reasonably held. The Respondent says that the Tribunal may take into account the context in which the statement was made, and the source of the legal obligation should be identified and capable of verification. The worker does not have to explicitly state that they reasonably believe that it tends to show one of the matters in s43B(1) ERA, or identify which legal obligation is said to have been breached, but this is one of the factors that the Tribunal can take into account when assessing whether a disclosure of information has been made.[94]Where an employee does not have sufficient service under s108(1) ERA to bring a claim of ‘ordinary’ unfair dismissal (currently two years), the burden of proving that the reason for dismissal is an automatically unfair one is on the employee. Further if the Tribunal rejects the employer’s reason for the dismissal it is not bound to accept the reason put forward by the employee.[95]The Respondent denies that the Claimant made a protected disclosure, and it says that the communications were vague, self-focussed and not sufficiently specific, and did not convey information tending to show any of those matters relied upon. The Respondent says that the Claimant was seeking to justify walking out of work rather than making a disclosure in the public interest. The Respondent also argues that even if these were protected disclosures, the Claimant has failed to show that they were the sole or principal reason for dismissal, and rather the Claimant’s dismissal was for gross misconduct arising out of her unauthorised use of work time and materials. The Respondent reminds us that the Claimant made a decorative trophy during work time using work materials without permission; this was described by the Claimant herself as a symbol of love, not a tool; the disciplinary and appeal processes were conducted by different managers; and whereas the sanction of dismissal may have been harsh, this is irrelevant to the question of whether the dismissal was due to whistleblowing.[96]The Respondent referred us to Williams v Michelle Brown AM UKEAT/0044/19/00; Cavendish Professional Risks Management Limited v Geduld [2010] ICR 325; Kilraine v LB Wandsworth [2018] EWCA Civ 146; Blackbay Ventures Ltd t/a Chemistree v Gahir UKEAT/0449/12; Twist DX Ltd v Armes UKEAT/0300/20; Babula v Waltham Forest College [2007] ICR 1026, CA; Simpson v Cantor Fitzgerald Europe [2020] ICR 236; Smith v Hayle Town Council [1978] I.C.R. 996; Ross v Eddie Stobart (UKEAT/0068/13/RN) and Kuzel v Roche Products Ltd [2008] I.C.R. 799.[97]With respect to victimisation, the Respondent accepts the grievance email of 26 July 2023 was a protected act and that dismissal is a detriment, however it denies causation. The Respondent notes that there was a five month gap and during the intervening period it had discovered the Claimant’s gross misconduct, and there was no evidential link between the Claimant’s grievance and her dismissal for gross misconduct.[98]The Respondent referred us to St Helens Borough Council v Derbyshire and others [2007] IRLR 540.[99]With respect to direct religious discrimination, the Respondent says that there is no evidence decision‑makers knew of her religion; there is no evidence of appropriate comparators; the comparators relied upon made permitted work tools, not personal items; and the Claimant’s dismissal was entirely unrelated to religion.[100]With respect to notice pay, the Respondent says the claim was not particularised despite the Tribunal’s order, but if the dismissal is upheld no notice pay would be payable as the Claimant was dismissed for gross misconduct.[101]The Claimant responded to the Respondent’s submissions by email and stated: “I have received the Respondent's closing submissions yesterday and to be out of doubt as the information on paragraph 34 in reference to me having access to legal advice from August 2023 it’s not true statement in respondent submission claim. I can correct the respondent counsel as that’s not correct as I have attached below the evidence that I was having any legal advice until the March 2023, after attempt to negotiate with respondent. I can confirm I joined the unions in September 2023 after my grievance on the 12th September2023.”[102]The Claimant included a copy of a client care email from a trainee solicitor at Premier Solicitors dated 12 March 2024, as well as a copy of an email from her trade union attempting to make contact on 22 February 2024. Law Direct discrimination
Law
[103]Section 13(1) Equality Act 2010, together with section 10 of that Act, provide that direct discrimination takes place where an employer treats an employee less favourably because of religion or belief than it treats (or would treat) others. Under s. 23(1), when a comparison is made there must be no material difference between the circumstances relating to each case. A comparison may be made with an actual comparator, or with how a hypothetical comparator would have been treated.[104]Given that a tribunal may take into account a wide range of factors including circumstantial evidence, there may be cases where there is someone who, whilst materially different to a claimant, may be of assistance as an evidential comparator. They may, depending upon the circumstances and in conjunction with other material, justify a tribunal drawing an inference that a claimant was treated less favourably than he or she would have been treated.[105]Section 39 of that Act provides that an employer must not discriminate against its employee by dismissing them or subjecting them to any other detriment.[106]It is often appropriate to first consider whether a claimant has in fact received less favourable treatment than an appropriate comparator, and then consider whether this less favourable treatment was because of the protected characteristic. In some cases, particularly if there is only a hypothetical comparator relied upon, it may be appropriate to first consider the reason why the claimant was treated as they were – Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285 [8].[107]The reason for decisions or treatment can often be for more than one reason. Provided that the protected characteristic had a significant influence on the outcome, then discrimination will be made out – per Lord Nicholls in Nagarajan v London Regional Transport [1999] IRLR 572. The Tribunal may need to consider the mental processes of the alleged discriminator, and whereas this is often referred to as motivation, it is not to be confused with motive as this is not a relevant consideration. It is possible for an employer to discriminate unlawfully even with a benign motive – Amnesty International v Ahmed UKEAT/0447/08.[108]Very little discrimination today is overt or deliberate, and those accused of discrimination are usually unlikely to accept that they have done so, and possibly will be unlikely to recognise it in themselves. In cases of direct discrimination (or victimisation), an examination of the “reason why” someone was treated as they were should not be reduced to a simple “but for” question. It is therefore not appropriate to ask but for the protected characteristic would the Claimant have been treated better? Rather we must conduct a more rigorous inquiry into the mental processes of the Respondent to establish the underlying core reason for the treatment. This might be easier in cases where there is an overt or obvious reason for the treatment, however in other cases are more detailed analysis of the facts will be necessary. As per Sedley LJ in Anya v University of Oxford and another [2001] ICR 847: “Very little direct discrimination is today overt or even deliberate. What King and Qureshi tell tribunals and courts to look for, in order to give effect to the legislation, are indicators from a time before or after the particular decision which may demonstrate that an ostensibly fair−minded decision was, or equally was not, affected by racial bias.” [11].[109]In Earl Shilton Town Council v Miller [2023] IRLR 532 the court provided guidance on the approach to the reason why analysis in discrimination claims. Here HHJ Tayler noted that when considering whether treatment was due to a protected characteristic the tribunal spends much of its time considering the mental processes of the alleged discriminator in order to ascertain the reason why someone was treated as they were. However, the court held that there are at least two types of cases where it is unnecessary to consider the mental processes of the alleged discriminator, the first is where the reason was obvious, and the second is where a criterion is used which corresponds exactly with the protected characteristic. The court also concluded that a “good” motive will not prevent discrimination from having occurred, and this is of course consistent in Ahmed to which we have already referred.[110]In Chattopadhyay v Headmaster of Holloway School [1981] IRLR 487 the court noted the special nature of discrimination proceedings and that the person complaining of discrimination may face great difficulties when it comes to proof. The court held that where it may be appropriate to take into account evidence of hostility before and after the event (or act complained of) where it is logically probative of a relevant fact.[111]The term “detriment” should be given its broad ordinary meaning, and a detriment will exist if a ‘a detriment exists if a reasonable worker would or might take the view that the [treatment] was in all the circumstances to his detriment – per Brightman LJ in Ministry of Defence v Jeremiah [1980] QB 87. Victimisation[112]Section 39 Equality Act 2010 also provides that an employer must not victimise the employee by dismissing them or subjecting them to any other detriment.[113]Section 27 provides:(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 in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.(3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.(4) This section applies only where the person subjected to a detriment is an individual.(5) The reference to contravening this Act includes a reference to committing a breach of an equality clause or rule.[114]When assessing whether a Claimant has been victimised it is appropriate for a Tribunal to ask:(i) did the alleged victimisation arise in any of the prohibited circumstances covered by the Equality Act 2010?(ii) if so, did the employer subject the Claimant to a detriment? and(iii) if so, was the Claimant subjected to that detriment because of having done a protected act, or because the employer believed that the Claimant had done, or might do, a protected act?[115]The employee must be subjected to a detriment, which has been decided to mean being placed at a disadvantage. In Jeremiah it was held that detriment is established if the treatment complained of is of a kind that a reasonable worker would or might take the view that in all the circumstances it was to their detriment.[116]The detriment relied upon by a Claimant must be linked to the protected act. The test is whether the protected act was an effective cause of the treatment - Nagarajan v London Regional Transport [1999] IRLR 572.[117]In St Helens Borough Council v Derbyshire and others [2007] IRLR 540, the court stated the reason for the treatment should be assessed by asking why the respondent acted as it did, and whether the treatment was “because” of a protected act. It is not necessary for the protected act to be the sole or principal reason for the treatment – paragraph 9.10 of the EHRC Employment Statutory Code of Practice (2011). Harassment[118]Sex is a protected characteristic under section 11 Equality Act 2010. Section 40 provides that an employer must not harass an employee. Section 26 provides that a person(a) (A) harasses another(b) (B) if it engages in unwanted conduct related to a relevant protected characteristic, and 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. In deciding whether conduct has the effect referred to into account must be taken of the perception of B; the other circumstances of the case; and whether it is reasonable for the conduct to have that effect. This analysis is not required where the conduct had the purpose of violating B’s dignity or creating the proscribed environment.[119]In Weeks v Newham College of Further Education UKEAT/0630/11 it was held that a tribunal must be sensitive to all the circumstances; the fact that unwanted conduct was not itself directed at the Claimant is a relevant consideration but it does not prevent that conduct being harassment.[120]As to whether the conduct had the requisite effect, there are both subjective considerations – the Claimant’s perception of the impact on them – but also objective considerations including whether it was reasonable for it to have the effect on the particular claimant, the purpose of the remark, and all the surrounding context . The tribunal should specifically consider: what is the unwanted conduct? What was its purpose or effect? And was that conduct related to the claimant’s protected characteristic? - Richmond Pharmacology Ltd v Dhaliwal [2009] IRLR 336. Here it was also held that purpose is to be equated with intent.[121]Conduct which is trivial or transitory is unlikely to be sufficient.[122]When considering the matter of the effect on a claimant, the court in Pemberton v Inwood [2018] EWCA Civ 564 held: “In order to decide whether any conduct falling within sub-paragraph (1) (a) has either of the proscribed effects under sub-paragraph (1) (b), a tribunal must consider both (by reason of sub-section (4)(a)) whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) and (by reason of sub-section (4) (c)) whether it was reasonable for the conduct to be regarded as having that effect (the objective question). It must also, of course, take into account all the other circumstances – sub-section (4)(b). The relevance of the subjective question is that if the claimant does not perceive their dignity to have been violated, or an adverse environment created, then the conduct should not be found to have had that effect. The relevance of the objective question is that if it was not reasonable for the conduct to be regarded as violating the claimant's dignity or creating an adverse environment for him or her, then (even if the claimant did feel that her dignity was violated or an adverse environment created) it should not be found to have done so.” [88][123]In HM Land Registry v Grant [2011] EWCA Civ 769 it was held: “Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment.” [47][124]An actual dismissal, as opposed to a constructive dismissal, is capable of amounting to an instance of harassment: Urso v Department for Work and Pensions UKEAT/0045/16 [64-70].[125]Section 212 of the Act provides that a detriment does not include harassment. Accordingly, it is not possible for impugned treatment to amount to both direct discrimination (or victimisation) and harassment at the same time. Burden of proof[126]Section 136 of the Equality Act 2010 provides that if there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. However this does not apply if A shows that A did not contravene the provision.[127]The burden of proof provisions require careful attention where there is room for doubt as to the facts necessary to establish discrimination, but have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or another - Hewage v Grampian Health Board [2012] IRLR 870.[128]Guidance on the application of the burden of proof in discrimination complaints was provided in Igen Ltd v Wong [2005] IRLR 258: “(11) 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. (12) That requires a tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that [the protected characteristic] was not a ground for the treatment in question. (13) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to discharge that burden of proof....”[129]It is not sufficient for a claimant to merely to prove facts from which the tribunal could conclude that the Respondent “could have” committed an unlawful act of discrimination. Rather a claimant must establish a prima facie case of discrimination. As was held in Madarassy v Nomura International Plc [2007] ICR 867: “The bare facts of a difference in status and a difference in treatment 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.” [56][130]The court in Madarassy indicated that at the first stage the tribunal would need to consider all the evidence relevant to the discrimination complaint such as evidence as to whether the act complained of occurred at all; evidence as to the actual comparators relied on by the complainant to prove less favourable treatment; evidence as to whether the comparisons being made by the complainant were of like with like; and available evidence of the reasons for the differential treatment. The absence of an adequate explanation for differential treatment of the complainant is not relevant to whether there is a prima facie case of discrimination by the Respondent. The absence of an adequate explanation only becomes relevant if a prima facie case is proved by the complainant.[131]At the first stage the tribunal should take into account all of the relevant evidence from both sides and usually disregard any explanation provided the Respondent. The consideration of the tribunal then moves to the second stage whereby the burden is on the Respondent to prove that it has not committed an act of unlawful discrimination. The Respondent may prove this by an adequate non-discriminatory explanation of the treatment of the complainant. If it does not, the tribunal must uphold the discrimination claim.[132]As regards the “something more” needed to shift the burden of proof onto a Respondent, this will depend upon the facts of each case but it may include evidence of stereotyping, statistical evidence, lack of transparency or inadequate disclosure, or inconsistent explanations. However, mere unreasonable treatment by an employer “casts no light whatsoever” as to the question of whether an employee has been treated unfavourably - Strathclyde Regional Council v Zafar [1998] IRLR 36. This has also been followed by the Employment Appeal Tribunal in Law Society and others v Bahl [2003] IRLR 640 where it was held that mere unreasonableness is not enough as it tells us nothing about the grounds for acting in that way.[133]In Laing v Manchester City Council and others [2006] IRLR 748 the EAT provided helpful guidance on the application of the burden of proof, and in particular the potential for a tribunal to move direct to the second stage where the evidence suggests that the employer had discriminated against the claimant: “75. The focus of the tribunal’s analysis must at all times be the question whether or not they can properly and fairly infer race discrimination. If they are satisfied that the reason given by the employer is a genuine one and does not disclose either conscious or unconscious racial discrimination, then that is the end of the matter. It is not improper for a tribunal to say, in effect, “there is a nice question as to whether or not the burden has shifted, but we are satisfied here that, even if it has, the employer has given a fully adequate explanation as to why he behaved as he did and it has nothing to do with race”.76. Whilst, as we have emphasised, it will usually be desirable for a tribunal to go through the two stages suggested in Igen, it is not necessarily an error of law to fail to do so. There is no purpose in compelling tribunals in every case to go through each stage. They are not answering an examination question, and nor should the purpose of the law be to set hurdles designed to trip them up. The reason for the two-stage approach is that there may be circumstances where it would be to the detriment of the employee if there were a prima facie case and no burden was placed on the employer, because they may be imposing a burden on the employee which he cannot fairly be expected to have discharged and which should evidentially have shifted to the employer. But where the tribunal has effectively acted at least on the assumption that the burden may have shifted, and has considered the explanation put forward by the employer, then there is no prejudice to the employee whatsoever.77. Indeed, it is important to emphasise that it is not the employee who will be disadvantaged if the tribunal focuses only on the second stage. Rather the risk is to an employer who may be found not to have discharged a burden which the tribunal ought not to have placed on him in the first place. That is something which tribunals will have to bear in mind if they miss out the first stage. Moreover, if the employer’s evidence strongly suggests that he was in fact discriminating on grounds of race, that evidence could surely be relied on by the tribunal to reach a finding of discrimination even if the prima facie case had not been established. The tribunal cannot ignore damning evidence from the employer as to the explanation for his conduct simply because the employee has not raised a sufficiently strong case at the first stage. That would be to let form rule over substance.” Notice pay[134]Sections 86–91 of the Employment Rights Act 1996 provide for minimum periods of notice which comprise one week’s notice after one month’s service; one week’s notice per complete year of service thereafter; up to a maximum of 12 weeks. Where a contract provides for a longer period of notice, then that is the notice period which applies. Where an employee is in repudiatory breach of contract (for example by committing gross misconduct) the employer is entitled to dismiss summarily and they lose their entitlement to paid notice – Laws v London Chronicle (Indicator Newspapers Ltd) [1959] 2 All ER 285. Protected disclosures / whistleblowing[135]The Employment Rights Act 1996 provides: S. 43B(1) Disclosures qualifying for protection. (1) In this Part a “ qualifying disclosure ” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following— (a) … (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c) … (d) that the health or safety of any individual has been, is being or is likely to be endangered, (e) … (f) … (5) In this Part “the relevant failure”, in relation to a qualifying disclosure, means the matter falling within paragraphs (a) to (f) of subsection (1). … 43C Disclosure to employer or other responsible person. (1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure — (a) to his employer, …[136]A qualifying disclosure becomes a protected disclosure when it is made to the worker’s employer or in accordance with the requirements made to external bodies or the press under s.43C-H.[137]In Williams v Michelle Brown AM UKEAT0044/19/00, HHJ Auerbach set out the test for identifying whether a qualifying disclosure has been made: “It is worth restating, as the authorities have done many times, that this definition breaks down into a number of elements. First, there must be a disclosure of information. Secondly, the worker must believe that the disclosure is made in the public interest. Thirdly, if the worker does hold such a belief, it must be reasonably held. Fourthly, the worker must believe that the disclosure tends to show one or more of the matters listed in subparagraphs (a) to (f). Fifthly, if the worker does hold such a belief, it must be reasonably held. Unless all five conditions are satisfied there will be not be a qualifying disclosure. In a given case any one or more of them may be in dispute, but in every case, it is a good idea for the Tribunal to work through all five. That is for two reasons. First, it will identify to the reader unambiguously which, if any, of the five conditions are accepted as having been fulfilled in the given case, and which of them are in dispute. Secondly, it may assist the Tribunal to ensure, and to demonstrate, that it has not confused or elided any of the elements, by addressing each in turn, setting out in turn out its reasoning and conclusions in relation to those which are in dispute.” [9 and 10][138]There must be a disclosure of information. In Cavendish Munro Professional Risks Management Ltd v Geduld [2010] ICR 325, the EAT held that to be protected, a disclosure must involve giving information and must contain facts, and not simply voice a concern or raise an allegation: "The ordinary meaning of giving "information" is conveying facts. In the course of the hearing before us, a hypothetical was advanced regarding communicating information about the state of a hospital. Communicating "information" would be "The wards have not been cleaned for the past two weeks. Yesterday, sharps were left lying around". Contrasted with that would be a statement that "You are not complying with Health and Safety requirements". In our view this would be an allegation not information." [24][139]However, in Kilraine v London Borough of Wandsworth [2018] ICR 1850 the Court of Appeal held that: “…the concept of “information” as used in section 43B(1) is capable of covering statements which might also be characterised as allegations. Langstaff J made the same point in the judgment below [2016] IRLR 422, para 30, set out above, and I would respectfully endorse what he says there. Section 43B(1) should not be glossed to introduce into it a rigid dichotomy between “information” on the one hand and “allegations” on the other. … On the other hand, although sometimes a statement which can be characterised as an allegation will also constitute “information” and amount to a qualifying disclosure within section 43B(1) , not every statement involving an allegation will do so. Whether a particular allegation amounts to a qualifying disclosure under section 43B(1) will depend on whether it falls within the language used in that provision.” [30 and 31]. … “The question in each case in relation to section 43B(1) (as it stood prior to amendment in 2013) is whether a particular statement or disclosure is a “disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the [matters set out in paragraphs (a) to (f)]”. Grammatically, the word “information” has to be read with the qualifying phrase, “which tends to show [etc]” (as, for example, in the present case, information which tends to show “that a person has failed or is likely to fail to comply with any legal obligation to which he is subject”). In order for a statement or disclosure to be a qualifying disclosure according to this language, it has to have a sufficient factual content and specificity such as is capable of tending to show one of the matters listed in subsection (1). The statements in the solicitors’ letter in the Cavendish Munro case did not meet that standard. Whether an identified statement or disclosure in any particular case does meet that standard will be a matter for evaluative judgment by a tribunal in the light of all the facts of the case. It is a question which is likely to be closely aligned with the other requirement set out in section 43B(1), namely that the worker making the disclosure should have the reasonable belief that the information he discloses does tend to show one of the listed matters. As explained by Underhill LJ in Chesterton Global Ltd v Nurmohamed [2018] ICR 731 , para 8, this has both a subjective and an objective element. If the worker subjectively believes that the information he discloses does tend to show one of the listed matters and the statement or disclosure he makes has a sufficient factual content and specificity such that it is capable of tending to show that listed matter, it is likely that his belief will be a reasonable belief.” [35 and 36]. … “It is true that whether a particular disclosure satisfies the test in section 43B(1) should be assessed in the light of the particular context in which it is made. If, to adapt the example given in the Cavendish Munro case [2010] ICR 325, para 24, the worker brings his manager down to a particular ward in a hospital, gestures to sharps left lying around and says “You are not complying with health and safety requirements”, the statement would derive force from the context in which it was made and taken in combination with that context would constitute a qualifying disclosure. The oral statement then would plainly be made with reference to the factual matters being indicated by the worker at the time that it was made. If such a disclosure was to be relied upon for the purposes of a whistleblowing claim under the protected disclosures regime in Part IVA of the 1996 Act, the meaning of the statement to be derived from its context should be explained in the claim form and in the evidence of the claimant so that it is clear on what basis the worker alleges that he has a claim under that regime. The employer would then have a fair opportunity to dispute the context relied upon, or whether the oral statement could really be said to incorporate by reference any part of the factual background in this manner” [41].[140]As is clear from the decision in Kilraine (above) at [36] and [41] a Tribunal is entitled to take into account the context in which the statement was made and to consider it in light of all the facts.[141]A communication asking for information or making an inquiry is unlikely of itself to be constitute conveying information.[142]It is possible for several communications together to cumulatively amount to a qualifying disclosure even where each communication is not a qualifying disclosure on its own - Simpson v Cantor Fitzgerald Europe [2020] ICR 236. Here the Court of Appeal agreed with the approach of the EAT in Norbrook Laboratories (GB) Ltd v Shaw UKEAT/0150/13 where it was held that three emails taken together amounted to a qualifying disclosure even where the last email did not have the same recipients as the first two, as the former emails had been embedded in the final email. It will be a question of fact for the tribunal to decide whether two or more communications read together may be aggregated to constitute a qualifying disclosure on a cumulative basis.[143]As regards the Claimant’s belief about the information disclosed, the question is whether the Claimant believed at the time of the alleged disclosure that the disclosed information tended to show one or more of the matters specified in section 43B(1). Beliefs the Claimant has come to hold after the alleged disclosure are irrelevant. Whether at the time of the alleged disclosure the Claimant held the belief that the information tended to show one or more of the matters specified in s.43B(1) and, if so, which of those matters, is a subjective question to be decided on the evidence as to the Claimant’s beliefs. It is important for a tribunal to identify which of the specified matters are relevant, as this will affect the reasonableness question.[144]Account should be taken of the worker’s individual circumstances and the focus is on the worker making the disclosure and not on a hypothetical reasonable worker. Workers with a professional or inside knowledge may be held to a higher standard than lay persons in terms of what it is reasonable for them to believe.[145]Whereas the test for reasonable belief is a low threshold, it must still be based upon some evidence. Unfounded suspicions, rumours and uncorroborated allegations are insufficient to establish reasonable belief.[146]The belief must be as to what the information tends to show, which is a lower hurdle than having to believe that it does show one or more of the specified matters. There is no rule that there must be a reference in the disclosure to a specific legal obligation or a statement of the relevant obligations nor is there a requirement that an implied reference to legal obligations must be obvious. However, the fact that the disclosure itself does not need to contain an express or even an obvious implied reference to a legal obligation does not dilute the requirement that the Claimant must prove that he had in mind a legal obligation of sufficient specificity at the time he made the disclosure - Twist DX and others v Armes and others UKEAT/0030/20.[147]In Darnton v University of Surrey [2003] IRLR 133 it was held by HHJ Serota that: “In our opinion, it is essential to keep the words of the statute firmly in mind; a qualifying disclosure is defined, as we have noted on a number of occasions, as meaning any disclosure of information which in the reasonable belief of the worker making the disclosure tends to show a relevant failure. It is not helpful if these simple words become encrusted with a great deal of authority…” [28] and “We agree with the learned authors that, for there to be a qualifying disclosure, it must have been reasonable for the worker to believe that the factual basis of what was disclosed was true and that it tends to show a relevant failure, even if the worker was wrong, but reasonably mistaken.” [32].[148]The issue of reasonable belief was considered by the EAT in Korashi v Abertawe Bro Morgannwg University Local Health Board [2012] IRLR 4 where the following example was provided by way of illustration: “To take a simple example: a healthy young man who is taken into hospital for an orthopaedic athletic injury should not die on the operating table. A whistleblower who says that that tends to show a breach of duty is required to demonstrate that such belief is reasonable. On the other hand, a surgeon who knows the risk of such procedure and possibly the results of metaanalysis of such procedure is in a good position to evaluate whether there has been such a breach. While it might be reasonable for our lay observer to believe that such death from a simple procedure was the product of a breach of duty, an experienced surgeon might take an entirely different view of what was reasonable given what further information he or she knows about what happened at the table. So in our judgment what is reasonable in s.43B involves of course an objective standard – that is the whole point of the use of the adjective reasonable – and its application to the personal circumstances of the discloser. It works both ways. Our lay observer must expect to be tested on the reasonableness of his belief that some surgical procedure has gone wrong is a breach of duty. Our consultant surgeon is entitled to respect for his view, knowing what he does from his experience and training, but is expected to look at all the material including the records before making such a disclosure. To bring this back to our own case, many whistleblowers are insiders. That means that they are so much more informed about the goings-on of the organisation of which they make complaint than outsiders, and that that insight entitles their views to respect. Since the test is their 'reasonable' belief, that belief must be subject to what a person in their position would reasonably believe to be wrong-doing.” [62][149]When considering the question of the Claimant’s reasonable belief, it must be remembered that motive is not the same as belief - Ibrahim v HCA International Limited [2020] IRLR 224. However, whilst a worker must have a genuine (and reasonable) belief that the disclosure is in the public interest, that does not have to be his or her predominant motive in making it.[150]As regards the public interest, the Court of Appeal in Chesterton Global Ltd v Nurmohamed [2017] EWCA Civ 979, identified the following principles: i. There is a subjective element - the Tribunal must ask, did the worker believe, at the time he was making it, that the making of the disclosure was in the public interest? ii. There is then an objective element - was that belief reasonable? That exercise requires that the Tribunal recognise that there may be more than one reasonable view as to whether a particular disclosure was in the public interest. iii. The necessary belief is simply that the disclosure is in the public interest. The particular reasons why the worker believes that to be so are not of the essence. As per Underhill LJ: “That means that a disclosure does not cease to qualify simply because the worker seeks, as not uncommonly happens, to justify it after the event by reference to specific matters which the tribunal finds were not in his head at the time he made it. Of course, if he cannot give credible reasons for why he thought at the time that the disclosure was in the public interest, that may cast doubt on whether he really thought so at all; but the significance is evidential not substantive. Likewise, in principle a tribunal might find that the particular reasons why the worker believed the disclosure to be in the public interest did not reasonably justify his belief, but nevertheless find it to have been reasonable for different reasons which he had not articulated to himself at the time: all that matters is that his (subjective) belief was (objectively) reasonable.” [29] iv. The reference to public interest involves a distinction between disclosures which serve only the private or personal interest of the worker making the disclosure, and those that serve a wider interest. v. It is still possible that the disclosure of a breach of the Claimant’s own contract may satisfy the public interest test, if a sufficiently large number of other employees share the same interest. In such a case it will be necessary to consider the nature of the wrongdoing and the interests affected, and also the identity of the alleged wrongdoer. These are also referred to as the four factors in Chesterton.[151]It is not for the Tribunal to determine if the disclosure was in the public interest. Rather the question is: i. whether the worker considered the disclosure to be in the public interest; ii. whether the worker believed the disclosure served that interest; and iii. whether that belief was reasonably held. Breach of a legal obligation[152]As regards legal obligation, in Boulding v Land Securities Trillium (Media Services) Ltd (2006) UKEAT/0023/06 HHJ McMullen QC held the following: “The legal principles appear to us to be as follow. The approach in ALM v Bladon is one to be followed in whistle-blowing cases. That is, there is a certain generosity in the construction of the statute and in the treatment of the facts. Whistle-blowing is a form of discrimination claim (see Lucas v Chichester UKEAT/0713/04). As to any of the alleged failures, the burden of the proof is upon the Claimant to establish upon the balance of probabilities any of the following:(a) there was in fact and as a matter of law, a legal obligation (or other relevant obligation) on the employer (or other relevant person) in each of the circumstances relied on.(b) the information disclosed tends to show that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject. “Likely” is concisely summarised in the headnote to Kraus v Penna pIc [2004] IRLR 260, EAT Cox J and members: “In this respect 'likely/ requires more than a possibility or risk that the employer (or other person) might fail to comply with a relevant obligation. The information disclosed should, in the reasonable belief of the worker at the time it is disclosed, tend to show that it is probable, or more probable than not that the employer (or other person) will fail to comply with the relevant legal obligation. If the Claimant's belief is limited to the possibility or risk of a breach of relevant legislation, this would not meet the statutory test of likely to fail to comply.”” [24 and 25].[153]As held in Blackbay Ventures Ltd t/a Chemistree v Gahir [2014] ICR 747 (below), if a breach of a legal obligation is relied on, except in obvious cases, the source of that legal obligation should be identified and be capable of verification by reference to, for example, statute or regulations. [98][154]In Eiger Securities LLP v Korshunova [2017] ICR 561, Slade J held: “In order to fall within ERA s.43B(1)(b)… the ET should have identified the source of the legal obligations to which the claimant believed Mr Ashton or the respondent were subject and how they had failed to comply with it. The identification of the obligation does not have to be detailed or precise but it must be more than a belief that certain actions are wrong. Actions may be considered to be wrong because they are immoral, undesirable or in breach of guidance without being in breach of a legal obligation… The decision of the ET as to the nature of the legal obligation the claimant believed to have been breached is a necessary precursor to the decision as to the reasonableness of the claimant’s belief that a legal obligation has not been complied with” [46 and 47].[155]Accordingly, whilst the identification of the legal obligation does not need to be precise or detailed, it has to be more than a belief that what was being done was wrong.[156]As above, the person making the disclosure does not have to explicitly state that they reasonably believe that it tends to show one of the matters in s. 43B(1) ERA, or identify which legal obligation is said to have been breached, but this is one of the factors which the Tribunal can take into account when assessing whether a disclosure of information has been made – Twist DX Ltd [47-48] following Babula v Waltham Forest College [2007] ICR 1026, CA. Endangerment of health and safety[157]As regards endangerment of health and safety, the term “health and safety” is a generally well understood phrase and it will usually be clear whether the subject matter of a disclosure could fall within its scope. It was confirmed in the case of Hibbins v Hesters Way Neighbourhood Project [2009] ICR 319, that the health and safety matter does not necessarily have to fall under the direct control of the employer in order for protection to apply.[158]A disclosure of this nature will require sufficient detail of the perceived risk to health and safety. In Fincham v HM Prison Service EAT 0925/01 the worker was subjected to a campaign of racial harassment and informed the employer that “I feel under constant pressure and stress awaiting the next incident.” The Employment Appeal Tribunal concluded that this was sufficient to amount to a qualifying disclosure: “We found it impossible to see how a statement that says in terms “I am under pressure and stress” is anything other than a statement that her health and safety is being or at least is likely to be endangered. It seems to us, therefore, that it is not a matter which can take its gloss from the particular context in which the statement is made. It may well be that it was relatively minor matter drawn to the attention of the employers in the course of a much more significant letter. We know not. But nonetheless it does seem to us that this was a disclosure tending to show that her own health and safety was likely to endangered...” [30] Automatic unfair dismissal[159]Section 103A of the Employment Rights Act 1996 provides: “An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason or, if more than one, the principal reason for the dismissal is that the employee made a protected disclosure.”[160]The Tribunal will need to ask whether the protected disclosure was the sole or principal reason for dismissal. As set out above, the statutory question is what motivated a particular decision maker to act as they did – Kong v Gulf International Bank (UK) Ltd (Protect (the Whistleblowing Charity) intervening) [2022] IRLR 854.[161]The reason or principal reason for the dismissal means the employer’s reason. This can be the reason of the dismissing officer, but it may be necessary to look beyond that decision. In Royal Mail v Jhuti [2019] UKSC 55 (at paragraph 60), the Supreme Court held that where the reason for dismissal is hidden from the decision maker behind an invented reason, it is for the Tribunal to look behind the invention rather than to allow it to infect its decision, and provided the invented reason belongs to a person placed in the hierarchy of responsibility above the employee, there is no difficultly attributing that person’s state of mind to the employer, rather than that of the decision maker.[162]As regards the burden of proof, where an employee does not have sufficient service under s. 108(1) Employment rights Act 1996 to bring a claim of ordinary unfair dismissal, the burden of proving that the reason for dismissal is an automatically unfair one is on the employee – Smith v Hayle Town Council [1978] ICR 996 at [1002F] and [1003E] (this was a trade union case), and also Ross v Eddie Stobart UKEAT/0068/13/RN (this was a whistleblowing case).[163]In Kuzel v Roche Products Limited [2008] ICR 799, the Court held: “The tribunal must then decide what was the reason or principal reason for the dismissal of the claimant on the basis that it was for the employer to show what the reason was. If the employer does not show to the satisfaction of the tribunal that the reason was what he asserted it was, it is open to the tribunal to find that the reason was what the employee asserted it was. But it is not correct to say, either as a matter of law or logic, that the tribunal must find that, if the reason was not that asserted by the employer, then it must have been for the reason asserted by the employee. That may often be the outcome in practice, but it is not necessarily so. As it is a matter of fact, the identification of the reason or principal reason turns on direct evidence and permissible inferences from it. It may be open to the tribunal to find that, on a consideration of all the evidence in the particular case, the true reason for dismissal was not that advanced by either side. In brief, an employer may fail in its case of fair dismissal for an admissible reason, but that does not mean that the employer fails in disputing the case advanced by the employee on the basis of an automatically unfair dismissal on the basis of a different reason.” [59 and 60][164]A case of whistleblowing dismissal is not made out simply by a “coincidence of timing” between the making of disclosures and the termination of employment - Parsons v Airplus International Ltd [2017] UKEAT/0111/17 [43]. Time limits – discrimination complaints[165]Section 123 Equality Act 2010 provides that proceedings on a complaint may not be brought after the end of(a) the period of 3 months starting with the date of the act to which the complaint relates, or(b) such other period as the employment tribunal thinks just and equitable. Section 123(3) provides that conduct extending over a period is to be treated as done at the end of the period.[166]The normal time limit must be adjusted to take into account the early conciliation process and any extensions provided for in section 140B. Continuing act[167]In Hendricks v Metropolitan Police Commissioner [2002] IRLR 96, the Court of Appeal stated that the test to determine whether a complaint was part of an act extending over a period was whether there was an ongoing situation or a continuing state of affairs in which the claimant was treated less favourably. In Hale v Brighton and Sussex University Hospitals NHS Trust UKEAT/0342/17 it was found that the respondent’s decision to instigate disciplinary proceedings against the claimant created a state of affairs that continued until the conclusion of the disciplinary process.[168]When determining if there was a continuing state of affairs the tribunal will consider what the acts were, the context and who was involved. A tribunal may decide that some acts form part of a continuing act, while others remain unconnected - Lyfar v Brighton and Sussex University Hospitals Trust [2006] EWCA Civ 1548. One factor, which may be relevant (but which is not conclusive) is to consider whether the same people are involved in the different incidents complained of - Aziz v FDA [2010] EWCA Civ 304. Extension of time on a just and equitable basis[169]It is for the claimant to show that it would be just and equitable to extend time - Bexley Community Centre (t/a Leisure Link) v Robertson [2003] EWCA Civ 576.[170]The court in British Coal Corporation v Keeble [1997] IRLR 36 provided guidance to tribunals when considering whether to exercise its discretion to extend time on this just and equitable basis. This will include consideration of the length of and reasons for the delay, but might include the extent to which the cogency of the evidence is likely to be affected by the delay; the extent to which the party sued had co-operated with any requests for information; the promptness with which the claimant acted once they knew of the possibility of taking action; and the steps taken by the claimant to obtain appropriate professional advice once they knew of the possibility of taking action.[171]In Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640, the court noted that Parliament had chosen to give the Employment Tribunal the widest possible discretion, and the Equality Act 2010 does not specify any list of factors to which the Employment Tribunal is instructed to have regard, nevertheless some factors are almost always relevant to consider and these are the length and reasons for the delay and also whether the delay has prejudiced the Respondent for example from preventing it from investigating the complaint whilst the matters were fresh.[172]The court in Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 23 has confirmed that the correct approach is for the tribunal to assess all the factors in the particular case which it considers relevant to whether it is just and equitable to extend time. The court advised against using a mechanistic approach and using the examples in Keeble as some sort of checklist.[173]As was observed in Jones v Secretary of State for Health and Social Care [2024] EWCA Civ 1568: “Strictly speaking, section 123 EQA does not set out a primary time limit that may be extended but a time limit of three months or "such other period as the employment tribunal thinks just and equitable". Where the Employment Tribunal decides that a period other than three months is just and equitable that is the time limit. Nonetheless, the use of the term "primary time limit" for the three months period (with an extension for ACAS early conciliation where appropriate) is a useful shorthand.” Time limits – automatic unfair dismissal[174]The Employment Rights Act 1996 provides: S. 111 Complaints to employment tribunal(1) A complaint may be presented to an employment tribunal against an employer by any person that he was unfairly dismissed by the employer.(2) Subject to the following provisions of this section, an employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal — (a) before the end of the period of three months beginning with the effective date of termination, or (b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months. Drawing inferences[175]The court in Royal Mail Group Ltd v Efobi [2021] UKSC 33 provided guidance on the matter of drawing inferences where a party does not call a potential witness to give evidence. Here it was held: “So far as possible, tribunals should be free to draw, or to decline to draw, inferences from the facts of the case before them using their common sense without the need to consult law books when doing so. Whether any positive significance should be attached to the fact that a person has not given evidence depends entirely on the context and particular circumstances. Relevant considerations will naturally include such matters as whether the witness was available to give evidence, what relevant evidence it is reasonable to expect that the witness would have been able to give, what other relevant evidence there was bearing on the point(s) on which the witness could potentially have given relevant evidence, and the significance of those points in the context of the case as a whole. All these matters are inter-related and how these and any other relevant considerations should be assessed cannot be encapsulated in a set of legal rules.” [41] Conclusions and decision[176]We will now deal with each of the allegations in turn, starting with the sex related harassment complaints. Issue 4.2 - On 29 September 2022 SB responded “bring me women, I love playing with them” and “maybe you instead then”.[177]We do not find that Mr Brown made the comment alleged. The Claimant did not raise this complaint at the time, and the first time it was raised was 12 months later in the grievance interview. The Claimant alleges that she was harassed or victimised beyond human imagination, however this is at odds with her not raising at the time. Mr Brown was asked about the allegation and denied it, but we note he admitted two other matters, namely that he told her she could fuck off (intend to mean leave work early), and also that she was not as good at her job as she thought she was. This suggested to us that Mr Brown was prepared to be honest about conduct for which he might be criticised.[178]We have also taken into consideration that in the grievance notes, the fact it was a lengthy and wide ranging discussion where these comments could have been raised, and the Claimant said she would have gone out for a meal with him had he asked her, and again this appeared to be an unusual thing to have said had the Claimant genuinely felt harassed as she now explains. The Claimant now denies she said that in the meeting and she now denies receiving the notes or being told the grievance outcome however we have found she received the outcome and notes and never challenged them.[179]As to the comments themselves, Mr Brown was not called to give evidence before us, and whereas we could draw a negative inference from his absence that perhaps his evidence would not have assisted the Respondent, we do not do so. The reason is because of the overwhelming issues with the Claimant’s credibility which meant that we did not accept her oral evidence on this.[180]As we are not persuaded that Mr Brown made the comments alleged we therefore find that there was no unwanted conduct in this instance; the Claimant has not established a prima facie case, the burden of proof did not shift to the Respondent; and we dismiss the allegation. Issue 4.3 - on or about 21 October 2022 the Claimant attended leaving drinks where Mr Brown said to the Claimant “I am meeting women on the internet for sex as I have needs, but you are special”.[181]The Claimant says that this was said when she bought him a Guinness at someone’s leaving drinks. This is not something which the Claimant raised at the time. The Claimant now alleges that she raised it in the 12 September 2023 grievance hearing, some 11 months later, however Mr Pilborough denies this but he acknowledges had it been raised he would have said he could not deal with it if it occurred offsite. We do not find that the Claimant raised it in the meeting as it there is no mention of it in the notes which whilst not verbatim, are full and thorough.[182]As regards the comments themselves, we are not satisfied that Mr Brown made the comments. He was denied the opportunity to respond to them as the Claimant never raised it at the material time. Had the Claimant felt as harassed and offended as she now alleges, she would have raised it at the material time as she had no difficulty raising other serious matters. The first occasion the Respondent had knowledge of this was in these proceedings. As above, we have found the Claimant’s evidence to be unreliable, prone to exaggeration and invention, and we do not have confidence in the truth of what she says. We do not draw an inference from the decision of the Respondent not to call Mr Brown as a witness. As we find Mr Brown did not make the comments there was no unwanted conduct; the Claimant has not established a prima facie case, the burden of proof did not shift to the Respondent; and we dismiss the allegation. Issue 4.4 - on 1 November 2022, Louise Willmore asked the Claimant if she had spent the night with Mr Brown and discussed his private parts.[183]The Claimant was asked in the hearing whether she mentioned this allegation in the September 2023 grievance meeting. The Claimant’s answers were evasive, she avoided answering it and instead kept repeating that she had told Sue Rolls in HR about it previously. The Claimant was asked a number of times by Ms Urquhart, and then by me, whether she raised it in the September meeting, and each time she failed to give a direct answer.[184]Having listened to the Claimant’s evasive answers, we find that the Claimant did not raise this matter at the time, nor did she mention it in the grievance meeting which would have been the opportune time to have done so. The Claimant did make serious allegations about Ms Willmore, yet the Claimant did not mention this at the same time. We have already found that the Claimant had the notes and the outcome and did not challenge either at the time, and as such we find the Claimant did not raise this complaint during her employment.[185]The Claimant has demonstrated a significant level of hostility towards Ms Willmore, it is clear that they did not get on as both claimed to have blocked the other on social media. Within her witness statement and in her oral evidence, the Claimant made the extraordinary allegation that Ms Willmore spiked the drink of a colleague named Sandip. At first the Claimant suggested Ms Willmore had moved Sandip’s cup because of the smell of her tea, and afterwards she put it back and Sandip then fell ill later that day and was shaking, fragile, tired and dizzy, following which the Claimant concluded that Ms Willmore spiked the drink. This later developed to the Claimant saying she had witnessed her spiking the drink, and she then said she had been spiking the drinks of foreign workers with substances which had altered their minds. We noted that the Claimant was asked in the hearing if she called 999 about it but she did not answer that question either. This was an intrinsically implausible allegation with absolutely no corroboration and suggested to us she was prone to invention.[186]The Respondent did not call Ms Willmore as a witness although she remained employed. We do not draw a negative inference from the decision not to do so because of those overwhelming issues as to the Claimant’s credibility which meant that we found her evidence to be unreliable. Had the comments been made as alleged, and had the Claimant experienced the feelings she has now described, she would have raised it at the time as she complained about a number of other serious matters. We do not find that the comment was made, and as such there was no unwanted conduct, and the burden of proof did not shift to the Respondent. We dismiss this complaint. Issue 4.5 - on 5 April 2023 after the Claimant complained to Sue Rolls in HR, she failed to provide any advice and advised the Claimant to talk to an “imaginary husband” to help her through the harassment she is subjected to.[187]The Claimant did not raise this at the material time but waited until the September 2023 meeting to do so, after which it was investigated, and Ms Rolls admitted making the comment save for the reference to the husband, she claims to have said an imaginary friend. The Respondent did not call Ms Rolls as a witness as she left its employment up to two years ago. We do not draw a negative inference from that.[188]We have the competing accounts of the Claimant and Ms Rolls. We have found the Claimant to be an unreliable witness on the one hand, prone to exaggeration and invention, whereas the account of Ms Rolls appears candid and plausible. We prefer the account of Mr Rolls and do not find that she made the comment about an imaginary husband. We find that Ms Rolls said an imaginary person. We would therefore dismiss the complaint on that basis alone as the factual premise of the allegation has not been made out. However, we go further and note that whereas the comment was a clumsy attempt to help and to show sympathy, the suggestion to speak to an imaginary person had absolutely nothing to do with the Claimant’s sex, and we would also have dismissed the complaint on that basis in any event. The Claimant has failed to set up a prima facie case, the burden of proof has not shifted to the Respondent, and we dismiss the complaint. Issue 4.6 - on 10 April 2023 the Claimant demonstrated the issues she was struggling with to which Mr Brown responded with “I should spank you hard on your butt”.[189]The Claimant did not complain about this at the material time, nor in the grievance meeting which would have been the opportune time to have done so. As we have repeatedly found above, the Claimant alleges she suffered harassment or victimisation beyond human imagination, and she made a number of complaints about a number of people but failed to mention this one. We do not find that the comment was made by Mr Brown, we repeat our earlier finding that we do not draw a negative inference by not calling him to give evidence as the Claimant’s own evidence has been unreliable and we do not accept our account with respect to this allegation. We therefore find the comment was not made and there was no unwanted conduct, the burden of proof has not shifted to the Respondent to dismiss Issue 4.7 - on 12 May 2023, during the Claimant’s lunchbreak, Mr Brown approached the Claimant and said “I would like you to bring me women, as my testosterone levels are so high, and my needs must be met” and then on disclosed that he meets women on specific websites for sex and he had one night stands with some of their colleagues.[190]The Claimant did not complain about this at the material time. The Claimant was asked if she complained about this in the September grievance meeting and again her replies were evasive as she said Mr Pilborough had no interest in dealing with it. We find that the Claimant did not raise this matter at the time nor in the grievance meeting which would have been the opportune time to have done so even though she raised a similar alleged matter from September 2022.[191]As to the comments themselves, we have repeatedly found above, the Claimant alleges she suffered harassment or victimisation beyond human imagination, and she made a number of complaints about a number of people but failed to mention this one. Had the comment being made to the Claimant as alleged, and had it had the impact upon her which she now alleges, we find she would have raised it at the material time and at the very latest during the September grievance meeting. The Claimant did not do so, and we do not find that the comment was made by Mr Brown, and we repeat our earlier finding that we do not draw a negative inference by not calling him to give evidence as the Claimant’s own evidence has been unreliable and we do not accept her account with respect to this allegation. We therefore find the comment was not made and there was no unwanted conduct, the burden of proof has not shifted to the Respondent and dismiss Issue 4.8 – on 30 May 2023 the Claimant told Mr Brown that she was feeling unwell and asked if she could go home to which he told the Claimant to fill in the sickness absence form and “fuck off.”[192]The Claimant raised the complaint during the September 2023 grievance meeting, and it was investigated and Mr Brown accepted saying it and that he meant she could go home as she was unwell, but they had spoken afterwards and smoothed it over. We find that this was unwanted conduct as it was a rude and unprofessional way to speak to a colleague, not least by someone more senior than the Claimant.[193]However, we do not find that it related to sex, and the Claimant had considerable difficulty explaining to us in the hearing why she said it was, save that it was rude and belittling and did not take her feelings into consideration. That may be so, but for a harassment complaint it is the conduct itself which must relate to the protected characteristic of sex, and there is no such connection or relationship to her sex in this incident. The trigger for making the comment was the Claimant’s request to go home, it was nothing to do with her sex. We therefore dismiss the complaint. Issue 4.9 - On 14 June 2023 during a meeting Mr Brown made a comment that the Claimant is rubbish and not as good as she may believe.[194]This complaint was raised with the Respondent during the September 2023 meeting, and Mr Brown was spoken to and admitted giving feedback about the Claimant’s performance in which he said she was not as good at her job as she believed she was. Mr Brown denied saying that she was rubbish. The Respondent accepts that that might be a rather brusque way of giving feedback and we agree, and it would have been difficult for the Claimant to hear performance feedback given to her in that way. We therefore find that this was unwanted conduct. We do not make a finding that Mr Brown told the Claimant that she was rubbish because he denied it and we have found him to have given honest evidence in the grievance interview, but moreover during our hearing the Claimant told us Mr Brown told her that her work was trash - she did not tell us that he called her trash.[195]As we have indicated already, it is the conduct which must relate to the protected characteristic of sex, and the Claimant again had difficulty explaining to us why she said this related to sex. The claimant told us it was said deliberately to her as a woman because he does not speak like that to other male colleagues. That is a different type of complaint to it is not one which the Claimant has brought, and it had not been pursued as an allegation of direct discrimination. We find it had an absolutely no relationship at all to the Claimant’s sex, the trigger for the comment was Mr Brown’s view of the Claimant’s work not her sex, and we therefore dismiss Issue 4.10 - The Claimant’s dismissal.[196]It is not disputed that the Claimant was dismissed nor that this was unwanted conduct. As we have indicated already, it’s the conduct which must relate to the protected characteristic, however we find it had an absolutely no relationship at all to the Claimant’s sex. The reason for the treatment was due to the Respondent determining that the Claimant had committed gross misconduct by using work materials and equipment in work time without permission. There was no link to the Claimant’s sex. It is therefore unnecessary for us to go to examine whether this had the purpose or the effect of violating the Claimant’s dignity or creating the proscribed environment. We dismiss the complaint.[197]All of the complaints of harassment related to sex therefore fail and are dismissed in full. Protected disclosures / automatic unfair dismissal[198]This complaint is in two parts. The Claimant relies upon two WhatsApp messages from 29 June 2023 and separately an email from her of 26 July 2023. Starting with the WhatsApp messages, two or more communications may be read together and aggregated to constitute a qualifying disclosure on a cumulative basis. We find that there was a disclosure of some but a limited amount of information in the Claimant’s WhatsApp messages. The Claimant is saying that she had not received training to work with someone who had a stroke; a risk assessment had not been completed; and staff had not been told how to respond if the situation escalated with that person. The rest of the message was not a disclosure of information, it was just an expression of dissatisfaction or concern which suffered from a lack of specificity. We observe that the Claimant never explained these health and safety concerns, and moreover her views appeared to the Tribunal to be based upon prejudice towards those who had experienced a stroke.[199]As to whether the Claimant had a reasonable belief that this tended to show either a breach of a legal obligation or a risk to health and safety, the Claimant did not explain at the time, nor does she explain now the legal obligation which had been breached, and in such a case we find that the Claimant did not have a reasonable belief that it tended to show a breach of a legal obligation.[200]As regards risk to health and safety, the Claimant’s messages were sent in order to explain her absence, they were not sent with the dominant purpose of raising concerns, but nevertheless it does not have to be the only reason for making the disclosure. As to whether the Claimant’s belief that it tended to show a risk to health and safety was a reasonable one, we find that plainly it was not. The Claimant and her colleagues did not need training to enable them to sit next to someone who had a stroke; this individual was non-verbal but had had a white board to use for communication; the Claimant was only asked to sit next to her, not to partner with her, and she could not have reasonably believed that there was any risk to her or anyone else’s health and safety in these circumstances.[201]The Claimant’s evidence that her life was in danger was wholly unsupported and inconsistent with the evidence which further damaged her credibility in this matter. The WhatsApp messages were therefore not disclosures qualifying for protection and we also record for completeness that any belief that the Claimant had that this was a disclosure in the public interest was not a reasonable one as the disclosure concerned only her own situation, this was a private employer, and the nature of the alleged wrong doing was simply an alleged lack of training at work. It was not reasonable for the Claimant to believe that this was a disclosure in the public interest.[202]As regards the email of 26 July 2023, the three paragraphs relied upon suffer from a lack of any specificity at all and it consists of very general allegations and opinions, there is no information disclosed in those passages. The disclosure fails at the first hurdle due to the lack of information being disclosed, and we do not need to go to consider the remainder of the legal test as to what she believed it tended to show. We further record that even if this was a protected disclosure, Mr Pilborough did not have sight of it and therefore it could not in any event played a part in his decision to dismiss the Claimant.[203]We therefore find that none of the communications relied upon were disclosures qualifying for protection, and the Claimant’s complaint of automatic unfair dismissal fails and is dismissed. For the sake of completeness we record that the Claimant’s dismissal was because the Respondent determined that she had committed gross misconduct. Victimisation[204]The Respondent concedes that the Claimant’s email of 26 July 2023 was a protected act. It is clear, and the Respondent concedes, that the Claimant’s dismissal was a detriment. We therefore look at the matter of causation or the reason why the Claimant was dismissed, and we ask whether the dismissal was due to the Claimant’s protected act.[205]We have found Mr Pilborough to be an honest and reliable witness. He did not recall seeing the email until these proceedings and it is not referenced anywhere within his notes. Mr Pilborough provided full and detailed reasons for dismissing the Claimant at the time, and his evidence has remained consistent throughout. It was clear to us that Mr Pilborough genuinely believed that the Claimant had committed the misconduct alleged, he confirmed the materials had been used as well as the equipment and it was done in work time.[206]We were particularly persuaded by Mr Pilborough’s oral evidence which went into far greater detail than his witness statement, explaining in simple but understandable terms, why the Claimant using work equipment on personal items was taken as seriously as it was – the spot welder was set up specifically to work on goods for a client, misusing the equipment could have impacted the quality of the items produced for that client, thus damaging the client relationship.[207]We believed Mr Pilborough when he told us these were the reasons, and the only reasons for the Claimant’s dismissal. The Claimant’s grievance had nothing whatsoever to do with that decision. We therefore dismiss the complaint of victimisation as the reason for dismissal was solely due to the Claimant’s conduct, not her due to her protected act. Direct Religious discrimination[208]The Claimant’s dismissal is alleged to be an act of direct discrimination on grounds of religion or belief, in other words less favourable treatment of her as a Muslim.[209]The Tribunal reminded itself of the two-stage approach to the burden of proof set out in Igen Ltd v Wong [2005] ICR 931. It is for the Claimant first to establish facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the Respondent treated her less favourably because of her religion. The Claimant has not established a prima facie case of less favourable treatment because of religion – Mr Pilborough did not know the Claimant’s religion, we do not know the religion of the three comparators, and in any event they were in materially different situations to the Claimant (as they sought and were granted permission to make tool holders), and moreover there were no facts from which we could conclude that a non-Muslim hypothetical comparator would have been treated any differently. The burden of proof has not shifted to the Respondent.[210]Even if the burden had shifted, we have gone on to ask the question what was the reason for the Claimant’s dismissal? It was clear, as we have indicated above, that the reason for the Claimant’s dismissal was because Mr Pilborough had a genuine belief that the Claimant had breached the Respondent’s conduct policy and committed gross misconduct. The reason for the Claimant’s dismissal had nothing whatsoever to do with her religion. We determine that a person, not of the Claimant’s religion, who carried out the same act, would also have been dismissed. We therefore dismiss the complaint. Time[211]All of the complaints have been dismissed therefore it is not necessary for us to address the issue of time to any degree. In her oral evidence the Claimant told us she had joined trade union in August 2023 and had instructed a solicitor in January 2024 and she sought to blame Sue Rolls in HR for blocking her and not giving her direction as to how to pursue a claim. In her oral closing submissions the Claimant changed the date she joined the union to September 2023 and said she did not see the solicitor until March 2024.[212]We record that all of the complaints of harassment, save for the Claimant’s dismissal, were lodged out of time. They did not form part of a continuing act and it would not have been just and equitable to have extended time for them. The complaint of victimisation, automatic unfair dismissal, and direct discrimination were brought in time, as was the claim for notice pay which was not advanced. Approved by: