Miss H Bibi v CareTech Community Services Ltd: 3304292/2023

EMPLOYMENT TRIBUNALS

Case No 3304292/2023

Between

Miss H BibiClaimant

CareTech Community Services LtdRespondent

Before

Employment Judge Hutchings

In person for claimant

Ms Bewley (instructed by counsel) for respondent

Date 3 May 2024

JUDGMENT

[1]The complaint of direct race discrimination is not well-founded and is dismissed.

[2]The complaint of direct sex discrimination is not well-founded and is dismissed.

[3]The complaint of direct age discrimination is not well-founded and is dismissed.

[4]The complaint of direct religion/belief discrimination is not well-founded and is dismissed.

[5]The complaint of harassment related to race is not well-founded and is dismissed.

[6]The complaint of harassment related to sex is not well-founded and is dismissed. Case No: 3304292/2023

[7]The complaint of harassment related to age is not well-founded and is dismissed.

[8]The complaint of harassment related to religion/belief is not well-founded and is dismissed.

[9]The complaint of victimisation is not well-founded and is dismissed. JUDGMENT having been sent to the parties on 6 June 2024 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:

REASONS

[1]On 15 May 2024 the claimant sent an email to Watford Employment Tribunal administration requesting written reasons for the judgment delivered orally on 3 May 2024, and sent to parties on 6 June 2024. The May email request was referred to Employment Judge Hutchings by Tribunal administration on 4 November 2024. These reasons respond to that request.

[2]The claimant, Miss Hazera Bibi, was employed by the respondent, CareTech Community Services Limited, as an assistant psychologist at The Willows Hospital, from 15 August 2022 until 2 February 2023, when she was dismissed by hospital managers at a probation review meeting. The hospital is a secure unit for men with complex sexual histories, some of whom had been found by the criminal justice system to have committed offences. Summary of the claims

[3]By ET 1 and Particulars of Claim dated 24 April 2023 the claimant brings complaints of direct age, race, religion/belief and sex discrimination and harassment related to age, race, religion/belief and sex about alleged events during her employment. She also brings a claim for victimisation, alleging comments she made about her supervision and probation meetings resulted in her dismissal. The complaints are made against her managers, supervisor, a nurse colleagues and doctors working at the hospital during her employment.

[4]By ET3 and Grounds of resistance dated 6 June 2023 the respondent denies all allegations, submitting that the majority of events alleged by the claimant did not occur at all. For a few of the allegations the respondent accepts that conversations did take place about the subject matter referenced by the claimant, but not in the manner she describes. Early conciliation started on 2 March 2023 and a certificate was issued on 13 April 2023. Evidence and process

[5]The claimant represented herself and gave sworn evidence. She called evidence from Mr Jenner, Ms Griffiths and Mr Jevon, with whom she worked at The Willows. Miss Griffiths did not attend the hearing due to caring responsibilities. While it is usual practice to give less weight to evidence that has not been challenged in questioning, we note that Miss Griffiths also provided a witness statement for the respondent, the contents of which are virtually the same as the statement provided for the claimant. Therefore, we conclude this evidence is not contested.

[6]The respondent was represented by Ms Bewley of counsel and called sworn evidence from 6.1. Mr Ford; 6.2. Dr Ascione; 6.3. Mr Jevon; 6.4. Mr Macianskis; 6.5. Mr Jenner; 6.6. Mr Ntagania; 6.7. Ms Jay; 6.8. Dr McInnes; 6.9. Ms Curtis; and 6.10. Ms Barker;

[7]As the hospital is now closed and several of the employees no longer work for the respondent, and are working for new employers, at the respondent’s request the Tribunal made witness orders for Mr Ford and Mr Jevon to attend at agreed times and adjusted the hearing order to facilitate this. The result was that The claimant’s evidence was interposed to allow these witnesses to give evidence. We make the observation that given the numerous factual allegations made by the claimant, the process of questioning the claimant was lengthy, However, the claimant told us repeatedly that it was very important for her that the Tribunal heard evidence from as many witnesses as possible. The witness orders and adjustment to the hearing order addressed this concern. It also facilitated a break for the claimant in answering questions, given her request for reasonable adjustments (noted below).

[8]The Tribunal considered an initial hearing file of 498 pages. At the start and during the hearing the claimant made several requests were for additional documents to be included in the hearing file. While noting that some of the documents were not relevant, the respondent took the pragmatic view to include the documents as the claimant was not represented. The Tribunal did not include documents about a police investigation concerning an allegation made by the claimant against Miss Jay as we concluded the contents were not relevant. Therefore the final hearing file considered by the Tribunal in deliberation was 530 pages.

[9]The hearing was listed for 7 days during which we heard evidence on liability.

[10]Prior to the hearing the claimant requested adjustments for regular breaks and to be able to leave the hearing room at any time as she says she experiences depression and anxiety induced vomiting. While the claimant did not provide any medical evidence to support these conditions, we considered it fair and just and in the interests of all parties to accommodate these requests. Accordingly, we took regular breaks of 5 to 15 minutes at least every hour, and often more than this. We also took additional breaks when the claimant became upset giving evidence or felt sick. On one occasion the hearing started late and finished early as told us she was unwell with vomiting (but she wanted to proceed subject to being allowed to leave the room). On that morning the Tribunal clerk supported the claimant by checking with her at regular intervals until she confirmed she felt sufficiently well to continue.

[11]We note that these requests were accommodated but there was limited evidence before the Tribunal to support the medical conditions the claimant says she has. Her evidence was limited to a talking therapies discharge letter in December 2023 addressing anxiety; there is no evidence of any conditions during employment. Similarly there was no evidence before the Tribunal to support the claimant’s contention, which arose during her giving evidence (and was not recorded anywhere before the hearing started) that she experiences memory fog and has difficulty recalling events. Notwithstanding the lack of evidence the Tribunal ensured that the cross examination of the claimant was at a slower than usual pace, that she was given additional time to answer every question and we assisted her with locating documents and ensured we identified the relevant part of the agreed list of issues so that she could refer to it before answering Ms Bewley’s questions.

[12]While the claimant told us she had received legal advice from a legal aid discrimination expert prior to the hearing, including support with the contents of her witness statement, she was not represented at the hearing. We ensured that at the outset of the hearing we explained the process of a hearing in the Employment Tribunal, and assisted her throughout the hearing, as recorded in these reasons. We are satisfied that the adjustments and support the claimant received from the Tribunal complies with the overriding objective of the Employment Tribunals (rule 2 of the Employment Tribunals Rules of Procedure 2013) to ensure parties are on an equal footing. There was flexibility in the hearing process (recorded in this decision) to accommodate the claimant’s concerns about her anxiety. We mention these points specifically as in her closing statement claimant asked us in making our decision to take into account that she is a litigant in person. We were mindful that of the fact the claimant is a litigant in person in the Tribunal’s conduct of the hearing. We are satisfied that the adjustment to this hearing have accommodated the claimant’s conditions as explained by her to the Tribunal and have ensured both parties have been able to participate fully in the hearing process and present their evidence. We are satisfied that a just and fair hearing took place for both parties, complying with rule 2 of the Employment Tribunal rules of procedure.

Preliminary matters

[13]The claimant made three applications. Rule 50: anonymity order

[14]First, in an email dated 29 November 2023 the claimant requested an anonymity order for herself, stating she required anonymity because her claim includes claims of sexual harassment and discrimination. The written request had not been addressed by the Tribunal when it was received as no information as to the reasons why she was seeking the order had been provided by the claimant. Therefore, at the start of the hearing we invited her to explain the reasons for the request, allowing her until the following day to of the hearing to do so, before the Tribunal heard any evidence.

[15]The claimant provided further reasons for her request by email, stating a public hearing would cause prejudice to her private and family life as she comes from “a tight knit Muslim, Bengali community and therefore, my name being public can have severe consequences on me and my future, specifically due to the sexual harassment, race and religion discrimination and harassment aspects of my case. The events which occurred as listed in this claim have caused me significant emotional distress and resulted in anxiety and depression. There is a high chance that having my name made public in this case will cause my mental health to deteriorate.”

[16]In reaching our decision to refuse the order, we are mindful that under rule 50 of the Employment Tribunal Rules of Procedure 2013 we must “give full weight to the principle of open justice and to the Convention right to freedom of expression” and our obligation to balance this with the claimant’s right to private life under

Article 8(1) of the European Convention

of Human Rights ("ECHR") to determine whether it is in the interests of justice to make the order. The terms of section 1 of the Sexual Offences (Amendment) Act 1992 (as amended) weigh very heavily in this balancing exercise. A rule 50 order in such circumstances might include an order that a hearing that would otherwise be in public be conducted, in whole or in part, in private. The claimant’s allegations of sexual harassment relate to an alleged conversation about a leaflet, not an allegation of physical contact. There is no high profile element to this case and the claimant did not present any evidence to suggest the press would be interested. This is not a claim for disability discrimination and there is very limited medical evidence before this Tribunal as to the distress to the claimant of the allegations she has made. The allegations made by the claimant do not fall within this Act.

[17]Open justice is a fundamental principle, and the general rule is that hearings and judgments are public. Derogation from this principle is wholly exceptional and limited to what is strictly necessary for the proper administration of justice or to achieve its purpose. The burden of establishing a derogation from this principle lies on the person seeking it and this must be done with clear and cogent evidence. The claimant has not satisfied this burden. She has not explained why the allegations about comments she says were made in relation to a leaflet need to be anonymised and how failure to do so will impact her ability to conduct her life in her community.

[18]In balancing the claimant’s EHCR right to a family life with the fundamental EHCR principle of freedom of expression we concluded that to issue an anonymity order on the basis of the lack of evidence from the claimant about the impact of public proceedings on her personal life would have a chilling effect on the fundamental rights to open justice and freedom of expression and would interfere with the proper conduct of this hearing. As explained by Her Honour Judge Eady QC in Ameyaw v PricewaterhouseCoopers Services Ltd

2019 ICR 976

, EAT, any power (such as the discretion to make a privacy order) that allows for the restriction of publicity and the imposition of anonymity stands in contrast to the transparency that would otherwise be required by the principle of open justice. The latter does not simply require that judicial hearings generally must take place in public but also that judgments will generally be publicly available, and that judicial proceedings and decisions can be reported by the media. This is not simply a consequence of the right to a fair trial under Article 6 but is also an aspect of the freedom of expression guaranteed by Article 10.

[19]In this case, following the Employment Appeal Tribunal’s decision in Fallows and ors v News Group Newspapers Ltd

2016 ICR 801

, EAT we have concluded that the claimant has not established with clear and cogent evidence that harm will be done by reporting her identity. Quite simply, the claimant has not provided any evidence that the reporting of the allegations she has made and her evidence will impact her life in her Bengali community.

[20]Second, the claimant also made an application for an anonymity order for Mr Ntagania, a witness for the respondent against who she had made allegations of sexual harassment. The application was refused as Mr Ntagania had not requested anonymity and was present at the hearing to give evidence in open court, and to defend himself. Accordingly, as Mr Ntagania had not raised any objections to giving evidence in a public hearing, we do not consider that it is in the interests of justice to anonymise his evidence. We make the observation that it is highly unusual for someone making serious allegations of sexual harassment, as the claimant did against Mr Ntagania, to seek an anonymity order for the person against whom they are making the complaint. The claimant did so, telling us she was concerned about the impact of her allegations on his career. Notwithstanding that she cannot make request on behalf of someone, we consider this relevant to the credibility, and truth, of the accusations the claimant made against Mr Ntagania. We address this in our findings of fact on credibility below. Rule 37: strike out

[21]Third, the claimant made an application to strike out that part of the response relating to a meeting on 12 January 2023 where she says several events occurred. This included an allegation of hair pulling. The basis of her request to strike out was that she had asked the respondent to identify who was present at that meeting, asserting she could not fully present her case if she did not know who was present.

[22]Rule 37 requires the party seeking strike out to identify one of the following as the basis on which the application is made, and to present evidence to the Tribunal in support:(a) that it is scandalous or vexatious or has no reasonable prospect of success;

(b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious;

(d) that it has not been actively pursued;

(e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out).

[23]Notwithstanding our guidance, the claimant did not identify the basis on which she was seeking strike out of the response, other than the fact the respondent had not provided this information. We do not consider this conduct satisfies the test is rule 37(b). Indeed, the respondent’s position was the same as the claimant’s; it did not have a clear recollection or record of who was present at the meeting. Whether events happened at the meeting in the manner alleged by the claimant or set out by the respondent in its response is properly a matter for examination by the Tribunal in receipt of all the evidence. These reasons for refusing the strike out application were explained orally to the claimant at the hearing. Furthermore, in the context of judgment delivered, we note the following. Her submission when making the application that she was not aware of some of the names was not accurate; she had cited 2 of these 5 people as witnesses she intended to call at the case management hearing in September 2023 and she was aware that a police investigation she had instigated about this meeting (which resulted in no further action due to a lack of evidence) spoke to several people, including people whose names she did not supply. In this regard she was not open and transparent with the Tribunal when making her application.

Findings of fact

[24]Having already outlined the length of employment we turn now to our findings of fact regarding the events about which the claimant complains. Credibility

[25]First we consider the credibility of the witnesses. The claimant referenced experiencing memory fog in written correspondence to the Tribunal and throughout the hearing, including in her closing statement. At no time has she provided any medical evidence to suggest she has difficulties with her memory. Indeed, on occasion she appeared quite lucid in recalling events, although not in a way that aligned with her written statement, or the documentary evidence before the Tribunal. The claimant’s statement is detailed. Often it did not align with the written evidence in the hearing file. The claimant did not seem to be able to answer a question put to her by Ms Bewley or the Tribunal about events without rereading her witness statement. Indeed, on occasions she could not recall which protected characteristic she was relying by reference to her factual complaints, without being referred by the Tribunal to the relevant section in the list of issues. Indeed on several occasions she spoke about the wrong characteristic and had to correct herself once she had consulted the list of issues.

[26]Often the claimant’s oral evidence was inconsistent, not only with her witness statement, but with an oral description she had given of the same event at another time during the hearing. In oral evidence told us she did not complain about specific things during her employment as she was worried about her job but her own contemporaneous notes of meetings (included in the hearing file) suggested she had raised these matters to her employer at the time. Other facts she said she did raise them are not recorded in supervision notes she accepted she wrote. In evidence she told us she was too worried to complain; in closing she told us she complained throughout her employment when something concerned her. Quite simply, the claimant’s evidence was contradictory throughout and did not align with her own contemporaneous documents and her witness statement. Witnesses called by the claimant did not support her own recollection of events.

[27]Repeatedly the claimant told us she was not given feedback about her performance and the probation meeting at which her employment had terminated came as a complete shock. The documents before us paint a different picture; she was given feedback on several occasions and in her oral evidence accepted the feedback was well meaning. The contemporaneous documents record senior and more experienced colleagues commenting on her performance and making constructive suggestions about what the claimant could do to improve. Again, this goes to the claimant’s credibility as a witness. The claimant’s recollection of her employment does not accord with the contemporaneous documents, into which she inputted or received.

[28]The claimant was not a credible witness. She did not seem to know her own case. Even accounting some memory fog and the passage of time, when allegations are as serious as those made by the claimant, the complainant usually displays an acute recollection of what they say happened and then may reference documents to clarify points. This was not the case with the claimant. For the majority of questions she was asked (which were clear and direct) she was unable to recall the events she was being asked about. We make the general finding that, in this regard, there was a lack of credibility in the basis on which she was claiming discrimination. The type of discrimination (race, sex, age, religion) is foremost in the mind of someone who has been, or indeed someone who “feels” they have been, subjected to a discriminatory act. They can articulate this was race discrimination by reference to something that related the events which the claimant says happened because of their race. The claimant could not. Indeed, often she could not recall the type of discrimination she was alleging in relation to specific factual allegations. At times the claimant seemed amused that she could not recall events or her recollection did not reflect the contemporaneous written record.

[29]The claimant did not appear to have a gripe on her own case. We agree with Ms Bewley’s observation in her closing statement that the claimant did not seem to be able to articulate events from memory and she was going off her witness statement and the list of issues which were not consistent. Further, when it was pointed out to her that she had the dates and places incorrect, for example in her allegations about Mr Ntagania, there was no concession from the claimant, she simply changed her version of events. The protected characteristic relied on for some of the alleged events changed during her oral evidence. When Ms Bewley referred the claimant to the list of issues, she “corrected” herself. As to dates, her claim takes a broad brush approach. A limited number of claims reference a particular date, and some of these dates changed during the hearing.

[30]When Ms Bewley pointed out that dates and details in the claim were inaccurate by reference to contemporaneous documents the claimant had received prior to preparation of her witness statement (and therefore memory could not have been a factor as she had the documents to consult when preparing her witness statement), the claimant withdraw the following claims: 30.1. “At the end of October 2022 Emma Jay emailed the Claimant requesting all current and historical risk assessments for patients within the month, despite Emma Jay knowing the Claimant had annual leave and training days during this period, and not knowing the patients well yet.” 30.2. “In maybe mid-November Emma Jay sent an email requesting the Claimant complete the risk assessments”. 30.3. “On a morning in November Emma Jay sent an email to the Claimant requesting she tell her what risk assessments the Claimant had completed. A few minutes later Emma Jay sent another email stating all the ones that had not been completed. Ann-Marie Barker then phoned the Claimant a few minutes later asking the Claimant to respond to Emma’s email.”

[31]By contrast, the respondents’ witnesses’ evidence was consistent when more than one witness was present at the same alleged incident. Their evidence was also consistent to contemporaneous documents. There is no logic to, or evidence to support, the claimant’s suggestion that the respondent’s witnesses had personal reasons (she says) to provide inaccurate details of the events about which she complains. Two witnesses (including one of the claimant’s) were summoned to give evidence. The hospital is no longer open. Several no longer work for the respondent. We found they gave evidence because very serious allegations had been made against them and it was fair and proper that they have the opportunity to respond to the allegations. The witness were keen to assist the Tribunal, but also open in admitting they could not recall specifically whether or not certain things were said. Where they recalled conversations about topics identified by the claimant, but disagreed with the details of what she suggested was said, they offered clear and credible explanations as to why certain conversations took place in the context of the hospital. At times the witnesses became upset when giving evidence that events described by the claimant did not happen at all. Where a witness had been called for both the claimant and respondent, their statements were consistent for each party and aligned with the respondent’s version of events.

[32]For these reasons, where the claimant’s evidence differed from that of the respondent’s witnesses, which it frequently did, we preferred the respondent’s evidence. Factual allegations

[33]We turn now to the factual allegations made by the claimant. It is curious that for several she provides direct quotations of what she alleges was said, but cannot identify with any precision dates. We address the factual allegations broadly in chronological order, but given the spread and lack of specificity of dates put forward by the claimant, on occasion we divert from strict chronology.

[34]The claimant alleges that between August 2022 and January 2023 Ms Jay and Ms Barker would “frequently stare at the Claimant in an intimidating manner in handover meetings, observing the Claimant’s entire body.” The claimant could not tell us what was discussed at these meetings to enable the Tribunal, and the respondent, to focus the timeline. Ms Jay and Ms Barker were consistent and firm in their denial they did so. They told us they were busy conducting and recording the notes to ensure effective staff handovers between shifts.

[35]We found Ms Jay and Ms Barker credible witnesses. Most of the interactions between them and the claimant during this period were meetings where other people were present. The respondent’s witnesses present at meetings during this time were adamant and consistent in confirming they had no recollection of this behaviour. Indeed, the claimant’s own witnesses, Mr Jevon and Mr Jenner, told us they had no recollection of any such behaviour, Mr Jenner commenting that “the claimant was not in any way abused or treated shabbily during her time at The Willows.” It would be extremely odd, farcical even, if senior managers of the hospital who were note takers were both staring at the body of a female colleague while taking notes. Had this been the case, given the particular environment of The Willows, mindful this was a data rich environment where, given the patient type, recording of interactions and behaviour was common practice, a colleague would have noted and raised concerns about this behaviour. They did not. We find because neither Ms Jay or Ms Barker behaved in the way the claimant alleges.

[36]In September 2022 the claimant alleges Ms Jay asked her age and said “you’re not young, are you?” This is an example of a clear recollection by the claimant of the exact words used, but without reference to a date or place they were said. Ms Jay told us she did not ask how old the claimant was as she was already aware at point the claimant’s employment started as she had recorded this as part of the onboarding process. Ms Jay employed the claimant (we have seen the offer letter). We find she did not as this question as she would not have needed to ask or comment on age.

[37]Also in September the claimant alleges that Mr Macianskis raised to Ms Jay the topic of the claimant maybe needing to complete further paperwork documenting recent behaviour from patients to her, and that Ms Jay laughed in response to this request. The claimant was not present at this conversation. Mr Vaidis and Emma Jay are consistent in their denial they had this conversation. It is difficult to understand how the claimant reached this conclusion as she was not a witness to the conversation, and she has offered no evidence to support her allegation this is what happened. We find Ms Jay did not laugh.

[38]Again in September the claimant alleges Ms Manyaya told her that “maybe a patient glared at the[ claimant] because of how the claimant was dressed.” Again the claimant offers no details (date, place of the conversation). Ms Manyaya did not give evidence. Given our assessment of the claimant’s credibility as a witness, we find this did not happen.

[39]In an MDT meeting “sometime in September 2022” the claimant alleges Dr MacInnes (a senior doctor who worked at the hospital at that time) told her not to work alone with one patient but did not say it to any other colleague in the room who were all older than the claimant. Dr McInnes told us about the general patient group at The Willows. All patients have been detained under mental health legislation. They had a history of severe mental health conditions and most had history of serious violence and offending (many offences were of a sexual nature) and some cases had been heard by the Crown Court. Dr McInnes explained that he would caution anyone joining the unit as staff about the patient make up and advise them not to work alone to keep them safe.

[40]We find that he cautioned the claimant in this way for her safety; it was professional, sensible, necessary advice given the patient pool, to ensure colleagues worked in a safe environment. At this time the claimant had no experience of working in this environment. The claimant has not offered any explanation as to why she considers Dr McInnes advised her in this was because of her age or sex or race. She accepted she was the only assistant psychologist and new member of staff at that time. This conversation was sometime in September, so she was within the first weeks of her employment. We find Dr McInnes give her safeguarding advice about working alone as she was new, and in a meeting with colleagues who were more experienced and had been working at The Willows for longer and were already aware of this requirement, hence not needing to be addressed directly. Given the claimant’s role, and the environment in which she was working, it is difficult to understand how she could not be aware of such safeguarding requirements, or understand, given her professional role, that this was the reason the comment was made. This speaks to the respondent’s conclusion that she was not suitable for, or capable of doing, the role for which she was employed.

[41]The claimant alleges that around 15 September 2022 Mr Ntaganira stated that Ms Jay had commented in the claimant’s probation meeting that the claimant was quiet because she was a woman. We have considered the notes of that meeting, which at the hearing the claimant accepted were accurate. It is correct that a comment was made by Ms Jay in feedback in this meeting that the claimant was quiet and that she needed to speak up in ward rounds. This was feedback on the claimant’s performance in ward rounds. However, it does not make sense that the claimant says it was Mr Ntaganira who reported this comment. He was not at the meeting. There is no evidence Ms Jay told Mr Ntaganira about this meeting. To do so would be unprofessional given the meeting was a probation review. Mr Ntaganira says he did not say this to the claimant. He did not have any involvement in the claimant’s career or supervision. It is simply not credible that this conversation took place between a nurse and a senior manager about feedback given in a private probation meeting. While comments were made, we find the suggestion that Miss Jay told Mr Charles Ntaganira completely implausible.

[42]The claimant alleges that at some time before 20 October 2022 Ms Barker told the claimant she needed to be careful with what she wore at work. Ms Barker admitted she spoke to the claimant twice about the need to dress appropriately given the working environment and patient histories. We find she did as she told us, explaining to the claimant that her safety depended on her dressing appropriately. The claimant confirmed she was spoken to in this way and that she was aware of the dress code. We find the reasons for this conversation were safeguarding and that as a manager Ms Jay was required to ensure staff complied with the dress code. The claimant also references a conversation in October 2022 with Ms Jay about her clothing. Miss Jay accepted she spoke to the claimant, particularly about a skirt Miss Bib admits wearing, with a slit.

[43]In evidence the claimant seemed at pains to discuss that the blouse was not gappy or see-through and that while she did wear a skirt with a slit, it was fine. She seems to have missed the point of the dress code. It is irrelevant whether the blouse showed her bra or the slit was inappropriate in her view or not. Managers who were experienced in this particular working environment deemed her clothing inappropriate and in breach of the dress code of which she had been made aware at the start of her employment. We find for these reasons they spoke to her about her clothing.

[44]There is no evidence to support the claimant’s allegation that a patient said “I love you, Hazera” and Ms Manyaya said to her that the patient may have thought that from the way the claimant was sitting. The fact the claimant is so vague with dates and there is no written record of this event in an environment which was so data rich in recording patient behaviour (event the histories of the patients) underlines our finding that this event did not happen.

[45]The respondent accepts that in September or October 2022 a patient put his hand on the top of the claimant’s head and pressed down whilst the claimant was sat down and that Ms Jay and Ms Barker did not intervene. Ms Jay denies the allegation she later told the claimant that it didn’t mean anything and that the claimant was overreacting, telling us that she did not intervene as she had observed interaction and concluded the claimant was dealing with the situation appropriately, so there was no reason to intervene. Based on Ms Jay’s role, experience and our assessment of credibility, we find this was the reason Ms Jay did not intervene. She had concluded that the claimant was doing the job for which she had been employed. The claimant offers no evidence or explanation as to why she says this was to do with her race, sex or age. It was not.

[46]At some time in September / October 2022 the claimant says that a patient was displaying inappropriate sexual behaviour towards her, alleging that “Emma Jay seemed annoyed and very dismissive stating that it was cultural / of the patient’s background to be touchy, and later walked out of the meeting for a cigarette.” MS Jay denies this. Dr McInnes, Mr Falk, Ms Jay and Dr Ashione, and the claimant herself, all explained the importance of records about patient behaviour and confirmed The Willows was a data rich environment. There were daily handover meetings between the day and night teams and notes taken of these. There is no record of this behaviour in the respondent’s notes and it is reasonable to conclude that, given the environment, had a senior manager, usually tasked with the role of taking notes, walked out mid-way through an MDT to have a cigarettes her behaviour would have been referenced by her colleagues in some way and she would have been held to account. There is no evidence of this behaviour. That is because she did not walk out of meeting mid-way through. She may have had a cigarette during a break or at the end of the meeting. That it not the allegation made and is not a matter for this Tribunal.

[47]Between September and January the claimant alleges that on more than one occasion she was invited to meetings held with Dr Macianskis, Dr MacInnes, “and maybe other MDT members” to discuss next steps on patient care. This claim is so lacking in specificity it is difficult for the Tribunal to see what the claimant was complaining about. She was unable to provide specific details at the hearing. Based on our findings about her credibility and knowledge of her case we find she is not clear either. She was required to attend a range of meetings with colleagues as part of her role in the usual course of her employment. It does not follow that she was required at all meetings. She was a new and junior member of staff. It was quite proper for senior doctors to hold meetings without her to discuss patient care.

[48]On 11 October 2022 the claimant admits she played a text joke on Ms Jay. Ms Jay had planned a trip to London. The claimant was not invited. They were recent colleagues, and Ms Jay a manager. There was no reason for the claimant to be invited. She sent a joke text about joining the trip; Ms Jay did not respond. The claimant alleges that Ms Jay rang Mr Jevon saying “your bitch just sent me a message” and she heard this was she was in Mr Jevon’s office when he answered on speaker phone.

[49]Mr Jevon told us banter with Ms Jay was common; sometimes he would greet Ms Jay in the kitchen, saying “I am your bitch today” or “I am the tea bitch”. Mr Jevon acknowledged to the Tribunal that with hindsight the banter was inappropriate. The claimant and Mr Jevon say that Ms Jay used the word “your bitch”. We found Mr Jevon at pains to explain the context of the conversation and the nature of his banter with Ms Jay. We find that, on balance, this word was used by Mr Jevon and Ms Jay generally in their workplace banter at that time and that it is more likely than not that Miss Jay did refer to the claimant as “your bitch” in her call to Mr Jevon, as she was not impressed by a “joke” text from one of her line reports. Ms Jay accepted she did not apologise for not replying to the text as she considered the claimant’s text inappropriate. There is no evidence to suggest that the words related to the claimant’s age, sex or race; they related to the text Ms Jay had received from the claimant.

[50]On 20 October 2022 the claimant alleges Miss Jay said to her “you’re young, you’re pretty, you’re new, you’re a fantasy” in an MDT meeting. We have seen the summary notes of this meeting which we accept Mr Ford made soon thereafter. There is no reference to this being said. Ms Jay and Mr Ford vehemently denied these words were used. Mindful of the hospital’s context, its data rich recording methods, the professional experience and obligations of those working there, on balance we find it is farcical that these comments were made and were not recorded in the notes by Mr Ford. It is notable that the claimant did not complain about such comments being made at the time and continued in her employment until her dismissal without raising it, including in her grievance letter or appeal meeting. We find it is inconceivable this kind of thing would be said and the first time it is mentioned by the claimant was in her claim to the Tribunal. This is because this was not said to her at the time; the words are a fabrication.

[51]At the same meeting the claimant alleges that Mr Ford mentioned that the patients are masturbating to the claimant, but that if they then touched her it could have severe consequences for the patients and he would have to do something about it. Mr Ford told us it was quite possible patients sexual activities were discussed given the The Willows setting and the sexual histories of the patients. Mr Ford was adamant that he did not use that word. Mr Ford’s role required him to discuss the patients sexual behaviours and identify any safeguarding concerns to his staff. This was a professional conversation. Based on our assessment of the claimant as a witness we find she has taken these professional conversation and extrapolated them to something which was not said, inserting language which was not used. The claimant has made some very serious allegations against a senior professional; she did not raise specific complaints at the time or specifically in her grievance or at the appeal meeting. She told us that is because did not complain because the job was difficult to get and she did not want loose it. Notwithstanding she was inconsistent in this explanation, telling us in her closing statement that she complained throughout, we find she did not do so as these allegations are a fabrication. For the same reasons reach the same conclusion about allegations that Mr Ford suggested her clothes were psychodynamic and that she should replace them with clothes from Primark. Ms Jay raised appropriate concerns about the claimant’s clothing.

[52]Also at this meeting Ms Jay raised the point that colleague had referenced that the claimant rolled her eyes (something the Tribunal observed the claimant do several times during the hearing – her reasons for doing so are not a matter for the Tribunal). Ms Jay told us that it was incumbent on her as a manager to raise this with the claimant as a senior colleague had raised it with her. We agree. The claimant has not provided any evidence or explanation as to why she considered Miss Jay’s enquiry about her conduct was related to her age, sex or race.

[53]On 28 October 2022 The claimant alleges that Dr MacInnes said that the patient made lots of eye contact with the claimant during a meeting because he and Mr Macianskis are quite ugly but the claimant is prettier. Dr McInnes referred to the claimant’s allegations as baffling, We agree. The claimant has offered no evidence to corroborate this conversation, which Dr MacInnes vehemently denied. Based or assessment of the claimant as a witness, we find that she has fabricated this conversation. Similarly, she alleges that Dr McInnes spoke to her about drinking in her pub and he did not because of her race. She did not explain why she had linked this allegation to race. Dr MacInnes does not recall the conversation specifically but accepted that it may have been a discussion in a clinical context as to whether it was appropriate for a patient on day release to go to a pub and giving guidance about how much that patient should be allowed to drink. There is no evidence that a clinical discussion took place on this date. We find it did not.

[54]The claimant alleges that at some time in October / November 2022 Mr Ntaganira said the claimant received comments from patients because the claimant is young. We found Mr Ntaganira a very credible witness, an experienced mental health nurse with an unblemished record who was deeply distressed and baffled by the allegations made against him by the claimant. He vehemently denied saying this. There is no written record. Based on our assessment of the claimant’s credibility we find this was not said and is another fabrication. The claimant does not provide an explanation or evidence to link this allegation to her claim of sex discrimination.

[55]The claimant makes several allegations against Mr Ntaganira; while out of chronology we will address now: 55.1. Sometime in December 2022 the claimant says she told Mr Ntaganira about a patient joining a group session she was leading and Mr Ntaganira said commented “when men see women, they envision them naked”. 55.2. On 20 December 2022 she alleges 2022 Mr Ntaganira told her she had a young woman’s face and he would pinch her cheeks, referring, the claimant says, to her “chubby cheeks and baby face”. 55.3. On 18 January 2023 Mr Ntaganira said ‘sorry to touch you’ and then touched the Claimant’s thigh whilst sharing his thoughts on a clinical leaflet she was preparing. 55.4. On an unspecified date and in an unspecified place Mr Ntaganira told the claimant: “If I was to have sex with you I would go all the way, with dates, and make you feel heard, in the same way, if you are doing giving a leaflet to patients then you should go all the way and ask them if they want a debrief too”.

[56]The Tribunal was unable to see Mr Ntaganira while he was giving evidence about these allegations due to an issue with the online camera. We spent some time trying to resolved this, but concluded it was proportionate to continue without the camera as Mr Ntaganira was audibly distressed when the allegations were put to him and we did not want to delay his evidence. Mr Ntaganira categorically denied that he ever did or said the things alleged or anything remotely similar, speaking at length about his respect for women, his daughters and his long professional career as a mental health nurse.

[57]It is telling that the claimant did not report any of this allegations during her employment. She first raised them in her claim form. When it was pointed out to the claimant by Ms Bewley that she was not on duty on some of the days on which she alleged these things happened, she changed the date. She is also confused about where she recalls things happening. The allegations of events in the nurses station the claimant says involved a nurse called Caroline not Mr Ntaganira. Where a person is subject to serious sexual harassment as alleged by the claimant against Mr Ntaganira we find it inconceivable that they would request anonymity for the alleged perpetrator. Based on our assessment of the claimant’s credibility, we find she did so because the events are a complete fabrication, compiled on an ongoing and evolving basis (including during the hearing itself) by the claimant when she was told she had not passed her probation.

[58]In December 2022 the claimant alleges things were said to her by Dr Ascione in a supervision meeting. We find this did not happen. Ms Griffiths, who gave evidence for claimant and respondent, is clear and consistent in her evidence that the supervision handover meeting from her to Dr Ascione took place on 7 December and the things the claimant alleges was not discussed, according with Dr Ascione recollection of the meeting.

[59]The claimant alleges various things happened in a morning handover meeting on 12 January 2023. She alleges Ms Barker was stood starting at her in “an intimidating manner.” It is denied by Ms Barker. We heard from several witnesses who were present at that meeting. No-one recalls any such behaviour. The claimant did not raise any concerns at the time. We find that is because it did not happen.

[60]Mr Macianski admits that he told all female staff to tie their hair up. The claimant alleges he did so while looking at her, and not at others in the meeting whose hair was also not tied up. Her claim is so misconceived as to not make sense. She claims he told everyone. He had to look somewhere. Mr Macianski’s recollection was that he was looking at this colleagues generally in making this safeguarding announcement, and at no one in particular. There is no evidence or explanation from the claimant as to why she considers this announcement this related to her age, sex or race. It is not. The advice was linked to safeguarding all colleagues with long hair. Mindful of working environment at The Willows and the patient histories, we find this is another example of a senior clinician sharing safeguarding advice to protect staff from known patient behaviour.

[61]The claimant alleges that Ms Jay grabbed a chunk of her hair and pulled on it, saying that she had told female staff to tie their hair up so many times, as an example of what patients could do. Ms Jay denies this happened. She told us she referenced the claimant’s hair being down and sought a bobble so that the claimant complied with dress code. There is no contemporaneous evidence Ms Jay did as the claimant alleges. There are no records that any of the other 9 people in this meeting raised concerns about any such behaviour in that meeting. Four have given evidence to this hearing, all confirming it did not happen. Two who did not give evidence were identified by the claimant as her witnesses in September 2023 but she has chosen not to call them. No-one recalls Ms Jay requesting a bobble over the radio. The claimant did not raise concerns at the time. She makes a non-specific reference in her grievance letter and the appeal hearing but does not present details which could have been investigated by the respondent at the time, despite being given the opportunity to do so at both stages. All the evidence before us underlines our finding that this is a fabrication by the claimant.

[62]The claimant makes various allegations about conversations she had with her roommate, Mr Macianskis, about food. Mr Macianskis appeared completely baffled by the allegations. While he admitted they did eat together he gave clear explanations about each occasion and how this was no more than banter about the food or drink each has chosen. The claimant says she experiences disordered eating. She admitted she had not shared this with Mr Macianskis; therefore; this condition does not form part of our assessment of the conversation. Simply, someone cannot be held account in a context of something they did not know or were not told about. The claimant has not provided any evidence or explanation as to why she considers these conversations related to her race, age or sex. Based on our assessment of the claimant’s credibility we find this was no more than roommate banter.

[63]The claimant makes various allegations against her supervisor, Dr Ascione’s behaviour in MDT meetings, all denied by him. Several witnesses were in the MDT meetings about which she complains. All deny that the events descried took place. There is no contemporaneous record of the claimant making complaints about the conduct of these meetings. The claimant’s own supervision notes for January 2023 which she accepted making do not record her being mimicked or any concerns about Dr Ascione’s behaviour. We prefer the written record of the meeting than the claimant’s subsequent recollection.

[64]The claimant alleges that Dr Ascione became very angry with her and behaved in an intimidating manner “which appeared as though he could become physically aggressive, shouting “do you want him [Charles Ntaganira] as your supervisor or do you want me as your supervisor. You go behind my back and the managers back and change it”. She does not explain why she considered the alleged behaviour was something to do with her age, race or religion. We have seen the minutes of this meeting which she admitted she wrote. There is no mention of this incident or these words. She says she mentioned it to Mr Jevon at the time (her own witness) but he had no recollection of her doing so. That is because it did not happen.

[65]The claimant alleges the minutes for the dismissal meeting on 7 February 2023 are “inaccurate, false, omitted information, and appeared to have been rewritten.” She does not provide any details of the inaccuracies or why she considers that they have been rewritten. Indeed, they record in note form conversations which she accepted took place. They also record the decision taken by Mr Ford and Dr Ascione prior to that meeting not to continue with her employment. It is simply implausible that handwritten notes were rewritten. Indeed, taking the claimant’s own case at its highest she does not offer any explanation (other than “a feeling this was discrimination”) as to why this should be so. The claimant was told the reasons for her dismissal related to her ability to carry out the role. She had been given examples of concerns about her ability prior to this meeting. Following her dismissal, the claimant raised a grievance, which was not upheld. While she appealed the outcome she does not raise any allegations about the grievance procedure to this Tribunal.

[66]Many of the complaints before this Tribunal are not referenced at a meeting which took place after her employment specifically to address the concerns during her employment. She was not seeking to be reinstated She wanted compensation. She is told that she should can provide additional info about her complaints after the meeting. We find the record of this meeting accurate.

[67]On 2 March 2023 Ms Curtis conducted an appeal meeting. We have seen the transcript. It is a comprehensive record of the discussion. The transcript speaks for itself. The claimant’s complaints were not ignored; Ms Curtis addressed her concerns in detail. The claimant has not provided any explanation or evidence to the Tribunal as to why she considers the conduct of the appeal was discriminatory and related to her race, age or sex. Nor was she able to do so at the hearing, when asked, telling us her aim in bringing the claim was monetary compensation.

[68]The claimant told us she accepted that Mr Ford and Dr Aschione genuinely believed that her performance was an issue and this is why they decided to dismiss her. She did not agree with their assessment of her performance. By her own admission this was her first role as an Assistant Psychologist; she had much to learn but was not open to the supervision and advice she received from very experienced doctors and hospital managers. She did not agree with the performance assessment of experienced professionals. It may have been the case that she should have got more support, on occasion. That is not a matter for this Tribunal; her claim is not that she should have had more support. We make the observation, however, that she denied receiving feedback during her probation, but the written records show she did receive feedback and that her managers felt she did not listen to it or action it. We agree with that assessment.

[69]We have considered the comparators put forward by the claimant. They are: 69.1. Ann-Marie Barker who was maybe in her 40’s – wearing tops that displayed her cleavage, 69.2. Caroline Manyaya wore a bright dress to work on one occasion, she was maybe in her 50’s 69.3. “Older Male Colleagues” who wore shorts and different coloured trousers – These colleagues were Pete Fisher, Martin Jevon, Vaidas Macianskis 69.4. Vaidas Macianskis – not being told to change his clothing by Ann-Marie Barker when a patient was potentially attracted to him. 69.5. Wendy Hewstone – white female, 50 years – who wore her hair down.

[70]We find none are in materially the same position as the claimant at the time of her complaints. She has not named anyone either in the same role as her or who was new to The Willows and subject to probation. The claimant has fundamentally understood the test for a comparator in materially the same circumstances as her. It is not sufficient to refer to someone of a different age, sex or race; the comparator must be in materially the same circumstances as well. Therefore, the Tribunal must revert to a hypothetical comparator; someone in the same role as the claimant subject to a probation period who was of a different age group, race and sex.

Issues

[71]The list of issues was agreed between the parties following a case management hearing on 28 September 2023. Given the number of factual issues, it is attached as schedule 1 to this judgment, in the same format as agreed between the parties.

[72]Essentially the issues are that a wide range of things happened to the claimant, from intimidating glances to sexual comments and physical abuse during her relatively short period of employment and these alleged actions were done by at least 5 of her colleagues, which included her line manager and the hospital manager, deputy manager, senior Psychologist , supervising Psychologist, an experienced nurse and the Occupational Therapist with whom she shared a room. Her case is that for each of the events she “felt” her colleagues had behaved in an discriminatory way towards her. There was no detail in her claim form, list of issues or her witness statement as to why she felt the behaviour was discriminatory based on each of the protected characteristics she referenced (race, sex, age and religion/belief). When we asked the claimant at the hearing to explain why the alleged behaviour was linked to her race, sex, age, religion or belief she told us she “had a feeling” the alleged actions of her colleagues were discriminatory and things “should have been handled in a different way”. Relevant law Time limits

Relevant law

[73]Section 123 of the Equality Act 2010 (“EqA”) sets the time limits we must apply where a claimant brings a claim for discrimination pursuant to the protection offered by the EqA. Section 123 provides: (1)Subject to section 140B proceedings on a complaint within section 120 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. (2)Proceedings may not be brought in reliance on section 121(1) after the end of— (a)the period of 6 months starting with the date of the act to which the proceedings relate, or (b)such other period as the employment tribunal thinks just and equitable. (3)For the purposes of this section— (a)conduct extending over a period is to be treated as done at the end of the period; (b)failure to do something is to be treated as occurring when the person in question decided on it. (4)In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a)when P does an act inconsistent with doing it, or (b)if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.

[74]The ACAS early conciliation procedure covers discrimination claims. The primary time-limit is within 3 months of the discriminatory action. If the claim is late, the tribunal has a ‘just and equitable’ discretion under s123(1)(b) to extend time. In Hendricks v Commissioner of Police for the Metropolis

[2003] IRLR 96

, the Court of Appeal held that ‘an act extending over a period’ can comprise a ‘continuing state of affairs’ as opposed to a succession of isolated or unconnected acts. There needs to be some kind of link or connection between the actions. Direct race discrimination related to age, sex, race, religion: Equality Act 2010 section 13

[75]Under section 13 EqA direct discrimination is defined as: “(1) A person(a) (A) discriminates against another

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

[76]The protected characteristics are set out in section 4 EqA and includes race, sex and disability. Direct discrimination occurs where the employer treats the employee less favourably because of a protected characteristic.

[77]We consider the following parts of section 13 EqA relevant to this claim: (2)If the protected characteristic is age, A does not discriminate against B if A can show A's treatment of B to be a proportionate means of achieving a legitimate aim. ……. (5)If the protected characteristic is race, less favourable treatment includes segregating B from others. (6)If the protected characteristic is sex— (a)less favourable treatment of a woman includes less favourable treatment of her because she is breast-feeding; . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (8)This section is subject to sections 17(6) and 18(7).

[78]Section 23 of EqA provides for a comparison by reference to circumstances in a direct discrimination complaint. The Tribunal must consider whether the employee was treated less favourably than they would have been treated if they did not have the protected characteristic. One way of testing whether or not the employer would have treated them better if they did not have the protected characteristic is to imagine a “hypothetical comparator”. There is no actual comparator in this case; therefore, the test of hypothetical comparator is applied. The circumstances of a comparator must be the same as those of the claimant, or not materially different: see section 23 of EqA. The circumstances need not be precisely the same, provided they are close enough to enable an effective comparison: Hewage v Grampian Health Board

[2012] UKSC 37

[79]The important thing to note about comparators (whether actual or hypothetical) is that they are a means to an end. The crucial question in every direct discrimination case is: What is the reason why the claimant was treated as she was? Was it because of the protected characteristic? Or was it wholly for other reasons? It is often simpler to go straight to that question without getting bogged down in debates over who the correct hypothetical comparator should be: Shamoon v Royal Ulster Constabulary

[2003] UKHL 11

[80]The Tribunal must consider the “mental processes” of the alleged discriminator: Nagarajan v London Regional Transport

[1999] IRLR 572

. The protected characteristic need not be the only reason for the less favourable treatment. It may not even be the main reason. Provided that the decision in question was significantly (that is, more than trivially) influenced by the protected characteristic, the treatment will be because of that characteristic and discrimination would be made out.

[81]The burden of proof provisions are contained in section 136 of EqA: (2) If there are facts from which the [tribunal] could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the [tribunal] must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene that provision.

[82]Section 136 prescribes two stages to the burden of proof: Stage 1 (primary facts) and Stage 2 (employer’s explanation). At Stage 1, the burden of proof is on the claimant Ayodele v Citylink Ltd & Anor [2017 EWCA Civ 1913. Stage 2 considers the employer’s explanation. Has the employer proved on the balance of probabilities that the treatment was not for the proscribed reason. In a direct discrimination case, the employer only has to prove that the reason for the treatment was not the forbidden reason. There is no need for the employer to show that they acted fairly or reasonably.

[83]The Court of Appeal in Igen Ltd v Wong

[2005] EWCA Civ 142

sets out guidelines on the burden of proof. Therefore, the process a Tribunal must follow is: 83.1. Establish if there are facts from which a Tribunal can determine that an unlawful act of discrimination has taken place; 83.2. If the Tribunal concludes that there are, the burden of proof shifts to the respondent to provide a non-discriminatory explanation for the conduct. Harassment related to age, sex, race, religion: Equality Act 2010 section 26

[84]Section 26 EqA provides: (1)A person(a) (A) harasses another

(b) (B) if— (a)A engages in unwanted conduct related to a relevant protected characteristic, and (b)the conduct has the purpose or effect of— (i)violating B's dignity, or (ii)creating an intimidating, hostile, degrading, humiliating or offensive environment for B. (2)A also harasses B if— (a)A engages in unwanted conduct of a sexual nature, and (b)the conduct has the purpose or effect referred to in subsection (1)(b). (3)A also harasses B if— (a)A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex, (b)the conduct has the purpose or effect referred to in subsection (1)(b), and (c)because of B's rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct. (4)In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a)the perception of B; (b)the other circumstances of the case; (c)whether it is reasonable for the conduct to have that effect. (5)The relevant protected characteristics are—

• age;

• disability;

• gender reassignment;

• race;

• religion or belief;

• sex;

• sexual orientation.

[85]In considering the words “intimidating, hostile, degrading, humiliating or offensive” a Tribunal must be sensitive to the hurt comments may cause but balance so as not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase: Richmond Pharmacology Ltd v. Dhaliwal

[2009] IRLR 336

. Where a claim for harassment is brought on the basis that the unwanted conduct had the effect of creating the relevant adverse environment, section 26 has been interpreted as creating a two-step test for determining whether conduct had such an effect; Pemberton v Inwood

[2018] EWCA Civ 564

. The steps are: 85.1. Did the claimant genuinely perceive the conduct as having that effect? 85.2. In all the circumstances, was that perception reasonable? Victimisation: Equality Act 2010 section

[86]Section 27 EqA provides: (1)A person(a) (A) victimises another person

(b) (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. Analysis & conclusions

[87]It is the finding of this Tribunal that many of the factual allegations made by the claimant are fabrications and did not happen. In analysing whether the complaints of discrimination proceed we direct ourselves that we only need to consider factual allegations we have found took place. Quite simply, if something did not happen as a matter of fact, it cannot be a discriminatory act. Time limits

[88]The Claimant notified ACAS on the 2nd March 2023 and the certificate was issued on the 13th April 2023. Any act or omission which took place before the 3rd December 2022 is potentially out of time, so the Tribunal may not have jurisdiction to consider the complaints.

[89]While we have found that the claimant has been unable to identify with any specificity the dates on which she says many of the events about which she complains took place, some of her complaints do predate 3 December 2022. Therefore, we must consider whether the claimant proved there was conduct extending over a period which is to be treated as done at the end of the period

[90]While the claimant was directed to the list of issues when the Tribunal gave her guidance about preparing a closing statement, mindful she is not represented, the claimant did not address the time point at all. Therefore, mindful of our obligations to ensure parties are on an equal footing we have considered the events the claimant presented to assess whether there was conduct extending over a period.

[91]We conclude there is. The claimant was employed for a short period of time. The events about which she complains relate in the main part to the respondents’ concerns about her ability to do her job and/or behave in a professional manner in the workplace. Over this period the respondent was providing feedback to the claimant on how to improve and advising her about safeguarding and policy matters (such as appropriate dress). The respondent’s behaviour was informing the probation assessment it ultimately conducted. As such we conclude that there is conduct extending over a period which is to be treated as done at the end of the period, that end being the probation meeting at which she was dismissed. In these circumstances, we consider it just and equitable to extend time and allow those parts of the claim which relate to events the claimant alleges took place before 3 December 2022.

[92]While the list of factual claims is lengthy, we emphasis, and direct ourselves again, that we only need to analyse those event where we have found the respondent did the things alleged by the claimant. As a matter of fact we have found that the majority of the factual allegations did not occur at all or in the way alleged by the claimant. Therefore, our analysis is not lengthy as we have upheld few of her factual complains. We address the events we have found did take place below. Complaints of Discrimination Direct discrimination

[93]The claimant identified the following protected characteristics as the basis of her discrimination claims: 93.1. Gender: Female; 93.2. Age: 26-27; 93.3. Religion: Islam; 93.4. Race: Bengali;

[94]Ms Jay and Barker did discuss the appropriateness of the claimant’s clothing with her. The claimant alleges this amounted to age and sex discrimination. We have accepted Ms Barker’s explanation that, as a manager, it was incumbent on her to raise any concerns about the clothing staff wore at work where, in a manager’s view, the clothing did not comply with the dress code, and mindful of the patient histories. The claimant alleges the matter of her clothing was raised with her due to her sex and age. She has not pointed to any facts as to why she reached this conclusion. We have found that in her managerial position it was incumbent on Ms Jay and Ms Barker to raise concerns with colleagues whose clothes did not comply with the dress code. We have found that they would have raised concerns with any colleague who their considered (mindful of their managerial role and experience) did not comply with the code, whatever that colleagues age or sex. Their explanations provide a non-discriminatory reasons for raising concerns about what the claimant was wearing with her (mindful of her admission she did wear a skirt with a slit). Given the sensitive setting and patient histories it was for experienced staff to assess the appropriateness of clothing. That management did not consider her blouse and a skirt the claimant admitted had a slit was not appropriate for this workplace had nothing to do with her age or sex but rather the view of experienced professionals that this was not appropriate attire for this hospital setting. We conclude that anyone in this workplace wearing similar clothing or clothing management were concerned did not comply with the dress policy would have been treated in the same way. Indeed, Ms Barker told us that on many occasions she had raised concerns about clothing with staff members where a colleague was wearing an item which did not comply with the policy. “On the occasions I discussed clothing with her she understood the reasons and that my comments were made to ensure she was safe. I would speak to any colleague about clothing if needed.”

[95]The claimant was not treated less favourably than her a hypothetical colleague in materially the same circumstances as she, because of her age or sex. She was treated fairly to ensure she dressed appropriately in the hospital, not least for her own safety given the patient histories.

[96]We have found that when a patient said I love to the claimant and put his hand on the top of the claimant’s head and pressed down whilst the claimant was sat down Ms Jay and Ms Barker did not intervene. The claimant alleges this amounts to age and sex discrimination. We have found the reasons the managers did not intervene is that they were satisfied that the claimant was handling the situation appropriately. She was an Assistant Psychologist and part of her role was to interact with patients with complex histories. That is what she was doing; her managers were watching her and were satisfied she was handling the situation appropriately. The claimant has not provided any explanation or evidence as to why she considers this approach by her managers amounts to age and sex discrimination. There is no proved facts presented by the claimant on which we can conclude the managers actions were discriminatory. We are satisfied with their explanation that the reason they did not intervene was because they were satisfied that the claimant was in control of the situation. The claimant was not treated less favourably. Had a colleague in materially the same circumstances being handling the situation appropriately, the manager would not have intervened.

[97]We have found that in September 2022 MDT meeting Dr McInnes told the claimant not to work alone with a particular patient. He did not say this to other colleagues attending the meeting. The claimant alleges that the manner in which Dr McInnes handled this meeting amounted to age and sex discrimination. We have found that the reason Dr McInnes addressed the claimant is that she was new to the role, the other colleagues being experienced, and it was incumbent on him to make her aware of the guidance not to work alone with certain patients as a safeguarding matter. The claimant has not provided any explanation or evidence as to why she considers this advice discriminatory. We are satisfied with Dr McInnes explanation. The claimant was not treated less favourably. Dr McInnes would have advised any new staff member in the same way, irrespective of their age or sex.

[98]The claimant was not invited to MDT meetings with Mr Macianski and Dr McInnes as it was not appropriate. She has not provided any explanation as to why not being invited was to do with her age or sex. It was not. She was not invited as the meetings were for senior members of staff to discuss patient histories. It shows a level of immaturity that she expected to attend these types of meeting.

[99]We have found that Ms Jay did you the language alleged (“your bitch just sent me a message”) in her telephone call with Mr Jevon. We have found that this was the way in which Ms Jay and Mr Jevon spoke with each other. We understand why the claimant will have found this offensive; it is offensive language. However, she has not provided any evidence or explanation as to why she considered this related to her age or sex. Given the nature of the language we conclude the burden does pass to the respondent to provide an explanation for this language. They have. Mr Jevon explained the use of this language was commonplace between Ms Jay and he. Mr Jevon acknowledged that, with hindsight, this “banter” was inappropriate. We have weighed this explanation with the offence to the claimant. We conclude that the explanation is genuine; had someone of a different age or sex sent the “joke” text to Ms Jay, Mr Jevon and Ms Jay would have had the same conversation. The claimant was not treated less favourably. She herself had engaged in an unwise joke text which had these consequences, The reason she was spoken about in this way was not because of her age or sex but because she had sent an inappropriate text to a new manager, which had angered that manager.

[100]We have found the claimant did roll her eyes in front of a colleague and Ms Jay addressed this with her when that colleague complained. The claimant has not provided any explanation as to why she says this related to her age or sex. The respondent has explained that management addressed the claimant’s behaviour as a colleague had raised concerns. We are satisfied with this explanation. The claimant was not treated less favourably. Where concerns of this nature are raised by management, it is right and proper that they are raised with the individual employee by management. Management would have treated someone on materially the same circumstances as the claimant in the same when to ensure a professional workplace.

[101]The claimant alleges that Dr McInnes comments about alcohol related to her religion. She does not explain why or present any evidence which led her to this conclusion. We have accepted Dr McInnes explanation that any comments about alcohol would be in the context informing staff about the limitations of patient engagement outside the hospital. The claimant was not treated less favourably. Dr McInnes would have made the same observations to new staff.

[102]The claimant was told to wear her hair in a bobble by her managers. We have found this was a comment made in a meeting where several staff were present, some of whom were note wearing their hair up. This comment was addressed to everyone and, given the workplace setting and the patient histories, was necessary safeguarding guidance. The claimant has not provided an evidence or explanation as to why she considers this treatment discriminatory or related to her age, sex or race. We conclude that in being asked to put her hair in a bobble the claimant was not treated in a discriminatory manner.

[103]The claimant has not provided an explanation or evidence to the Tribunal as to why she considers her conversations with her roommate about their food and drink discrimination. She did not object at the time, she conceded he was not aware she had an eating disorder and we have found she willingly participated in these two-way conversations. The claimant was not treated less favourably. For the factual complaints we have upheld she has not offered the Tribunal any evidence or explanation as to why she considered the behaviour was related to the protected characteristics on which she relies. She did not complain about the behaviour at the time. She has not satisfied her burden to identify “something more” to transfer the burden to the respondent. In any event, we have accepted the respondent’s non-discriminatory reason for the facts about which she complains.

[104]The claimant was dismissed because senior managers and doctors had reviewed her performance over the period of her employment, offered feedback which she did not take on board and ultimately decided The Willows was not the right work environment for her. All the evidence before this Tribunal (feedback emails, notes of meetings) lead us to the conclusion that experienced professionals assessed her performance and concluded her employment could not continue. The decision had nothing to do with the claimant’s age or sex; it was about her professional knowledge, performance and an assessment that this would not change despite the support offered. Quite simply, the claimant did not listen to the advise of her managers and supervisors. She was not treated less favourably. Her managers have satisfied us that they would have taken the same approach with anyone about whom they had similar performance concerns.

[105]For these reasons the complaints of direct discrimination fail. Harassment

[106]The claimant alleges she was harassment on the basis of her age, sex, race, and religion. First we must decide whether the respondent engaged in unwanted conduct. By reference to the list of issues and the facts the claimant alleges amounted to harassment, we have found that the following events did take place in the manner described by the claimant: 106.1. Ms Jay not responding to a message the claimant sent via phone, and commenting to Mr Jevon in a telephone conversation: “your bitch just sent me a message” and did not apologise. 106.2. The claimant being told by her managers that she was not complying with the dress code and conversations raising concerns about the clothes the claimant wore, given the patient histories at The Willows. 106.3. Conversations between the claimant and Mr Macianskis about food when they shared an office. 106.4. The claimant being told in a meeting that she was required to wear her hair in a bobble.

[107]The claimant considers this unwanted conduct. With the exception of the comment Ms Jay made to Mr Jevon, we disagree. Comments from her managers about the clothes she was wearing and the need to wear her hair in a bobble must be considered in the context of the environment in which she was working and the patient histories. The claimant does not seem to have taken this into account. Perhaps this is an element of immaturity or lack of workplace experience. However, she is a qualified psychologist and she had a general awareness of the patient histories and the hospital environment at The Willows before taking the job. Really, her managers should not have been required to give her this advice. It should have been apparent to her from her professional training and the environment in which she had chosen to work. She should have expected to be supervised and should have been responsive to queries and advice about her clothes, the need to wear her hair in a bobble, that her managers required her to interact with the patients and handle their challenges. She seems to have adopted an egg shell skill attitude to feedback, rather than seeking to learn and improve from it. Her interactions about food were nothing more than banter, in which she actively engaged, giving as good as she got. To suggest her conversations with her roommate were unwanted is disingenuous. In any event none of the events were related to her age or sex. They were necessary for the conduct of her role in the environment she had chosen to work.

[108]We consider Ms Jay’s comments to Mr Jevon unwanted conduct. We remind ourselves they were made in the context of the claimant having sent an inappropriate “joke” text to her manager. We do not consider this text funny. Nor did Ms Jay. Ms Jay was not aware the claimant was present when she made the comment to Mr Jevon (she was speaking on the telephone and was not aware this was on speaker). We have found that the nature of the comment in line with ongoing banter between Ms Jay and Mr Jevon. For this reason we do not consider it related to the claimant’s age of sex. It was a consequence of the claimant’s inappropriate text message and the nature of the friendship Ms Jay had with Mr Jevon.

[109]In reaching this decision we are mindful of the guidance of Elias LJ said in Land Registry v Grant

[2011] ICR 1390

at [47] on interpreting the words “intimidating, hostile, degrading, humiliating of offensive environment: “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.”

[110]In our judgment, by engaging in sending an inappropriate text to her manager the claimant had trivialised the working environment, such that when she heard a response (which it was not intended she hear) that she did not like, she has overplayed the consequence to her. Given the circumstances which resulted in Ms Jay’s conversation with Mr Jevon, we do not consider the words used by Ms Jay as having the effect alleged. Actions have consequences and this was the consequence of the claimant sending the inappropriate text. While on balance we conclude that the claimant was genuinely offended by being called a bitch behind her back, in all the circumstances (most notably that the comment was triggered by an inappropriate text she sent), we do not consider her perception reasonable?

[111]For these reasons the complaints of harassment fail. Victimisation

[112]We must consider whether the claimant performed a protected act. The claimant alleges the following were protected acts: 112.1. Raising issues at her probation meeting on the 21st October 2022 about comments made during the October probation meeting; 112.2. Raising issues at her supervision meeting on the 1st December 2022 about the probation meeting on 21st October 2022; 112.3. Raising issues at her supervision meeting on the 17th January 2023 about the 12th January 2023; and 112.4. Submitting a grievance regarding acts of discrimination on 15th February 2023.

[113]The Claimant alleges the following acts of the Respondent were detriments which occurred as a result of these acts: 113.1. Being dismissed 113.2. Her grievance and dismissal appeal being dismissed.

[114]We have found the claimant did not do and say the things she says she said at 1st December 2022 about the probation meeting on 21st October 2022, nor did she raise any concerns about this meeting that day. The reason the claimant was dismissed is clear from the documentary evidence; there were concerns about her ability to carry out her duties from the outset of her employment. It was this and not the fact she raised some concerns at her probation meeting that resulted in her dismissal. We have found her grievance and appeal were properly investigated. Both were dismissed for lack of merit following this investigation and not for the simple reason she brought them. Had this been the case the respondent would not have investigated.

[115]Indeed, in her oral evidence to the Tribunal the claimant acknowledged that while she disagreed with the respondent’s assessment of her performance, these were genuinely held views which informed their decision to dismiss.

[116]The claim made allegations against current and former employees of Caretech. Some of the complaints were particularly serious, making allegations of race discrimination and sexual harassment. We have found that the events about which these complaints are made either did not happen at all or did not happen in the way described by the B. Where events did happen, we have found there are genuine, professional reasons for them. We have found that the claimant has not provided any evidence, other than her feeling, of any race, age, sex or religious discrimination. Her claims are based on the fact she was, understandably, upset by the respondent’s decision not to continue with her employment beyond her probationary period. She was told the reasons for this decision by experienced and professional practitioners at the hospital. Either she did not complain about the events she alleged happened prior to her employment at the time she says they happened.

[117]The only explanation before the Tribunal for her behaviour is that she was upset by the decision, was unable to accept what is clear on the written evidence and records of the conversations of her managers during her employment that she was not suited to the role and was unable to take on board the advice she was been given. This seems to have fuelled an extreme and scattergun action, without basis or merit, of accusing former colleagues of either doing things they did not, or suggesting reasonable and professional behaviour had ulterior motives, which can only be explained by a motivation to accuse them of things they did not do in order to seek financial compensation. We hope that this judgment, found in clear findings of fact and evidence gives those former colleagues who have been subject to untrue allegations resolution.

[118]For these reasons all the claims are dismissed, specifically: 118.1. The complaint of direct race discrimination is not well-founded and is dismissed. 118.2. The complaint of direct sex discrimination is not well-founded and is dismissed. 118.3. The complaint of direct age discrimination is not well-founded and is dismissed. 118.4. The complaint of direct religion/belief discrimination is not well-founded and is dismissed. 118.5. The complaint of harassment related to race is not well-founded and is dismissed. 118.6. The complaint of harassment related to sex is not well-founded and is dismissed.