Dr M Connolly v The Chancellor, Masters and Scholars of The University of Cambridge and Dr J Whitelock: 3305018/2022 and 3302471/2023
EMPLOYMENT TRIBUNALS
Case No 3305018/2022, 3302471/2023
Between
Dr M ConnollyClaimant(1) The Chancellor, Masters and Scholars of The University of Cambridge (2) Dr J. WhitelockRespondent
Before
Employment Judge HutchingsDate 22 October 2024
JUDGMENT
[1]The complaint of direct age discrimination is not well-founded and is dismissed. 3305018/2022, 3302471/2023[2]The complaint of indirect age discrimination is not well-founded and is dismissed.[3]The complaint of being subjected to detriment for making a protected disclosure is not well-founded and is dismissed.[1]The complaint of direct age discrimination is not well-founded and is dismissed.[2]The complaint of indirect age discrimination is not well-founded and is dismissed.[3]The complaint of being subjected to detriment for making a protected disclosure is not well-founded and is dismissed.
REASONS
[1]On 7 November 2024 the Respondents’ representative sent an email to Watford Employment Tribunal administration requesting written reasons for the judgment delivered orally on 22 October 2024, and sent to parties on 6 December 2024. The November email request was referred to Employment Judge Hutchings by tribunal administration on 6 December 2024. These reasons respond to that request.[2]The First Respondent is a public collegiate teaching and research university based in Cambridge. The Second Respondent is the Associate Director, Head of Special Collections at the Cambridge University Library. The Claimant was a post-doctoral Research Fellow employed by the First Respondent from 1 October 2014 to 30 June 2020; from July 2018 until her resignation in September 2021 (effective 18 January 2022) she held the position of Research Fellow in the Faculty of Asian and Middle Eastern Studies (“FAMES”).[3]By ET 1 claim forms and Grounds of Claim dated 22 April 2022 and 10 March 2023 the Claimant presented the following claims to the tribunal pursuant to the Equality Act 2010 (“EqA”) and the Employment Rights Act 1996 (“ERA”); details of the claim are also set out in the claimant’s further and better particulars of claim dated 29 July 2022: 3.1. direct age discrimination, (s.13 EqA): that in conducting an internal investigation into plagiarism and bullying Rs treated C less favourably because of her age; 3.2. indirect age discrimination, (s.19 EqA): that Rs had a practice of protecting more senior staff members against false claims; and 3.3. detriments arising from Protected Disclosures (s. 47B ERA): that C experienced detrimental treatment as a result of communications expressing concerns about a criminal offence and a failure to investigate the plagiarism claims.[4]By ET3 response form, Grounds of Resistance dated 17 June 2022 and amended Grounds of Resistance dated 23 February 2023 the Respondents contest the claims. They assert that the comparator named by the Claimant, Dr Wagner, was not in materially the same circumstances as Claimant at the time of the acts about which she complains and there is no evidence the Respondents would have treated a hypothetical comparator differently to manner in which the Claimant was treated. The Respondents assert that the Claimant did not have a practice of protecting more senior staff and, in any event, seniority is not synonymous with age, meaning the indirect age discrimination claim is misconceived. The Respondents do not accept the emails and meeting relied upon by the Claimant raised concerns in the public interest about a criminal offence or a failure to investigate the plagiarism allegations.[5]Parties commenced early conciliation with ACAS on 9 February 2022 and a certificate was issued on 22 March 2022. Evidence[6]We considered a hearing file of 2,126 pages which the parties introduced in evidence. At the start of the hearing Ms Duane provided an opening summary note to the tribunal and the Claimant. Dr Takahashi and Ms Duane submitted closing statements to the tribunal.[7]During the hearing we admitted the following documents, which we considered relevant to the issues in dispute: 7.1. 11 pages of reduced hours paperwork; and 7.2. An English translation of health documents submitted by the Claimant in the hearing file. Witnesses[8]Other than day 1, the Claimant represented herself (with support from Dr Takahashi (lay representative)) and gave sworn evidence.[9]The Respondents were represented by Ms Duane of counsel, who called sworn evidence from: 9.1. Alison Pearn, Senior Research Associate and Associate Director of Charles Darwin Correspondence project; 9.2. Orietta da Rold, Professor of Medieval Literature and Manuscript Studies, fellow of St John’s College, Academic Director of Cambridge University Library Institute; 9.3. Kusam Leal, HR advisor; 9.4. Jill Whitelock, Associate Director, Head of Special Collections, Cambridge University Library; 9.5. Katharine Ellis - 1684 Professor of Music; 9.6. Sinead Healy, Senior Research Governance and Ethics Co-ordinator; 9.7. Rhys Morgan, Head of Policy, Governance and Integrity; and 9.8. Alan Blackwell – Professor of Interdisciplinary design within Department of Computer science. Preliminary observations of the Tribunal[10]First, we makes a general finding about the credibility of witnesses. The Claimant was keen to assist the tribunal. However, her evidence focused on an allegation of direct age discrimination founded on the misconception that Dr Wagner was a suitable comparator for the purposes of this complaint. Essentially the Claimant’s evidence was that she was treated less favourably by the Respondents than Dr Wagner when the Respondents investigated complaints she made about Dr Wagner to the First Respondent.[11]As the Claimant’s representative on day 1 of the hearing, Mr Ramjii, conceded, Dr Wagner is not a comparator for a discrimination claim under the EqA as she was not in materially the same circumstances as the Claimant at the time of the matters about which she complains to the tribunal; Dr Wagner was the respondent to the Claimant’s complaints to The First Respondent.[12]In this regard the claim that Dr Wagner was a comparator is misconceived. Given this concession, and the fact that we agree that Dr Wagner is not a comparator (the Claimant is complaining about Dr Wagner, who she alleges plagiarised her work; their circumstances are quite different, the tribunal considered the complaint of direct age discrimination by reference to a hypothetical comparator only as the claim using Dr Wagner fails at the outset given the very different and distinctive circumstances of the Claimant and Dr Wagner.[13]Notwithstanding that we explained to the Claimant repeatedly throughout the hearing that we did not consider Dr Wagner a comparator for the purposes of her age discrimination claim (something which could have been addressed at the case management stage of the proceedings, not least as the Claimant was legally represented) in her oral evidence and closing statement the Claimant continued to advance evidence to support a complaint that she was treated less favourably than Dr Wagner. The focus on a evidently misconceived comparator was unfortunate at best, partly as the Claimant was represented from the outset of her claim. It is also concerning that the Claimant told us she did not have the opportunity to read the ET1s and Particulars of Claim before they were submitted to the tribunal.[14]In bringing this claim, the Claimant has conflated seniority to mean the same as age and this is entrenched in her age discrimination claim. We consider this perspective misconceived; the Claimant does not present any evidence to support her conclusion that seniority reflects an older age group in the University. Indeed, Professor Blackwell explained, and we accept, this is not the case; it is a fact that senior staff can be, and are given there are many examples of them being, younger than more junior staff. The Claimant’s attempt to argue that an older age equates with a higher level of seniority is also misconceived.[15]We found the Respondents’ witnesses keen to assist the tribunal. Their evidence was consistent with their written statements, the contemporaneous documentary records and written communications before us and with each other. Often in answering questions they supported their recollections by referring the tribunal to documents. Where witnesses were giving evidence about the same events, their recollections aligned. All parties were transparent when they could not recall exact details.[16]In assessing the evidence, the tribunal is mindful that it is 3-4 years since some of the events occurred and considers it is the passage of time that may have impaired the ability of all parties to recollect.
Findings of fact
[17]On 7 July 2020 the Claimant submitted a written complaint raising two concerns (the “Complaint Letter”): 17.1. an allegation of plagiarism against Dr Wagner, a more senior Fellow at FAMES (the “Plagiarism Complaint”); and 17.2. an allegation of bullying and harassment against Dr Wagner (the “Dignity at Work Complaint”).[18]We have considered the complaints and find that: 18.1. The Plagiarism Complaint focuses on 2 issues directly related to the Claimant’s interactions with Dr Wagner, namely allegations that: 18.1.1. Dr Wagner had stolen an idea the Claimant had shared in a reading group at which Dr Wagner was present and included this in a pre-print article Dr Wagner had written without crediting the Claimant; and; 18.1.2. Dr Wagner planned to use the Claimant’s translation of a text, and notes relating to the idea, as the basis for an article she and Dr Mohamed Ahmed were due to co-author, without crediting the Claimant. 18.2. The Dignity at Work Complaint records the Claimant’s concerns about Dr Wagner’s behaviour towards the Claimant, particularly at a dinner both attended, alleging this amounted to bullying and harassment.[19]The Claimant suggests she sent the Complaint Letter in the public interest. We disagree. Except for a sentence at the end of the letter which states “I hope that in raising these matters with you, no other students will be subjected to the same treatment by Dr Wagner” the contents of the Complaint Letter focus on the Claimant’s concerns about her direct and personal experience of Dr Wagner’s alleged behaviour. She does not reference specific concerns involving any other students or staff; we find the Complaint Letter is an expression of her personal concerns, not a wider concern in the public interest.[20]The Claimant told us she did not raise any concerns about a criminal offence in the Complaint letter as when writing it she was “not thinking about the complaint in legal terms” or whether the facts she was complained about constituted “a criminal or legal offence”. Based on her evidence that she “had only recently learnt of these distinctions… these are very recent things”, and that it was Mr Jackson who indicated to the tribunal on day 2 of the hearing the offence she had in mind was fraud, we find the reference to concerns about a criminal offence was a labelling exercise at a later date in preparation of a claim. In this regard the exercise was misguided in any event as plagiarism of an idea or written work is not a criminal offence. On balance, we find it is not credible that, objectively, the Claimant had a reasonable belief in her mind that a criminal offence has been committed, is being committed or is likely to be committed by The First Respondent when she wrote the letter.[21]Furthermore, the Claimant could not have had concerns about a failure to investigate an allegation of plagiarism at this stage as, by chronology alone, the Complaint Letter must predate any investigation. The Respondents could not investigate until they knew of the complaint. The Complaint Letter was the very start of a process as it set out the Claimant’s concerns about Dr Wagner’s conduct.[22]The Respondents moved the process for investigating the complaints from FAMES to Cambridge University Library (“CUL”). The Claimant says that she did not want it moved from FAMES and considered this demonstrative of The First Respondent not taking the complaint seriously. Specifically, the Claimant told us she considered that if the investigation was conducted by CUL, colleagues and students in FAMES would not know the outcome if the complaint was upheld. Ms Leal explained to the Claimant the reason for the move at the time this decision was taken; that Dr Wagner did not have an employment contract with FAMES save for an affiliated lectureship (Professor Adolphson having confirmed separately that Dr Wagner was only affiliated with FAMES) and therefore had the investigation continued in FAMES, if any of the allegations were upheld, FAMES would not be able to take disciplinary action against Dr Wagner.[23]We note that the Claimant told us that she was not seeking a disciplinary outcome. The internal consequences of any proven allegations are a matter for the First Respondent, not the Claimant. For appropriate action to be taken against Dr Wagner on any finding that was upheld in respect of the complaints made by the Claimant, we find that it was necessary for the investigation to be conducted in a forum where there was an employment relationship. Accordingly, we find that this was the only reason Dr Morgan made the decision to move the investigation from FAMES to CUL was the fact that Dr Wagner’s employment relationship, and therefore the ability to take action against Dr Wagner, sat with CUL. Ms Leal’s evidence that she explained this reasoning to the Claimant in March 2021 is not contested. There is no evidence that in transferring the investigation the First Respondent was taking the allegations less seriously. Indeed, we find the reverse was the case. The move demonstrates that the First Respondent was taking the allegations very seriously indeed by ensuring from the outset that it had jurisdiction to implement appropriate sanctions against Dr Wagner in respect of any proven allegations.[24]Different policies applied to the respective complaints: 24.1. the Misconduct in Research Policy to the Plagiarism Complaint; and 24.2. the Dignity at Work Policy to the Dignity at Work Complaint.[25]In a July 2020 meeting Ms Leal explained to the Claimant that the Plagiarism Complaint would need to be dealt with under the First Respondent’s Misconduct Policy, whilst the allegations of bullying would need to be dealt with under the First Respondent’s Dignity at Work Policy. The First Respondent’s Dignity at Work Policy clause 5.1.9 states that it may be appropriate for there to be either parallel or sequential investigations to avoid duplication or conflicting decisions. Parties agree that Ms Leal gave the Claimant the option; the Claimant elected for sequentially, she says on the basis Ms Leal told her the plagiarism investigation would take 3-6 months. Ms Leal denies saying this, telling the tribunal: “No, I did not, my recollection as per my checklist for informal meetings was to go through key points of policy and then I said [to C] “you have had the choices what do you want to do” to make sure staff make the decision”.[26]Ms Leal told us the meeting was informal, and not minuted, in line with her usual practice of allowing the complainant the space to discuss the process openly. Ms Leal was adamant she would only have spoken about the Dignity at Work process, telling us she “had no knowledge or experience of a plagiarism process” and that she “would have tried to manage the claimant’s expectation that dignity at work processes can take a long time”.[27]At the time Ms Leal was an HR advisor. Her evidence that she had no experience of a plagiarism process is credible. Plagiarism investigations were not within her job remit or expertise. This supports her evidence that she would not have put a timeline on a process of which she had no experience. At no time in lengthy emails exchanges with the First Respondent, including many complaints about how long the process was taking, did the Claimant state she had been told the misconduct process would be completed in 3 to 6 months. She does not refer to being given this (or any) timeline in her claim documents or witness statement. Had she being given this expectation, given the number of emails from the Claimant to the Respondents, and the detail in these emails, about the time the misconduct process was taking, we would have expected this conversation with Ms Leal to have been referenced. Based on the fact that at no time during the process does the Claimant reference that she has been given a 3 to 6 month timeline for the plagiarism investigation, and the fact that Ms Leal did not have experience of a process investigating plagiarism, we find that Ms Leal did not suggest to the Claimant that the misconduct process would take 3 to 6 months.[28]In September 2020 the Claimant was informed that Dr Whitelock (the Second Respondent) was appointed the responsible person (“RP”) with ultimate responsibility for the outcome in both investigations; oversight by a RP was required by both policies.[29]In a letter date 23 November 2020 Dr Morgan told the Claimant that the reason the investigations needed to be separated is because the “University is required by its funders to have a Misconduct in Research process that is separate from its HR processes and that this is standard across the sector.” There is no evidence that separating the bullying and plagiarism complaints reduced the impact of these complaints. We find that this was a perception in the mind of the Claimant, not supported by the genuine and valid reasons for the separation, namely that the First Respondent’s existing policies had separate processes for the distinct subject matter of the Complaint Letter. There is no evidence the separation was influenced by the seniority or age of the parties involved. The evidence before us is that the First Respondent was following internal processes, set out in written policies, application of the policies determined only by the subject matter of the complaints the Claimant raised.[30]We make our subsequent findings of fact chronologically, first by reference to the Plagiarism Complaint and then by reference to the Dignity at Work complaint. Plagiarism Complaint[31]The first stage in this process is to establish a two-person committee to carry out a preliminary investigation, as mandated by the Misconduct Policy, and produce a report for consideration by the Second Respondent as RP who would then decide whether a full investigation was required.[32]In September 2020 Dr Pearn and Professor da Rold were appointed as this preliminary committee. The Claimant’s assertion that the investigation committee “chose” to appoint Professor da Rold is nonsensical; it suggests that Professor da Rold appointed herself. The investigation committee could not and did not appoint itself. In any event, the Claimant’s concerns that Professor da Rold had a conflict of interest were misconceived. The policy allows the respondent to the complaint (in this case Dr Wagner) to comment on committee make up. The policy at that time did not afford the complainant the same input. Having been told Professor da Rold was proposed, Dr Wagner flagged they were members of the same college. The Respondents followed due process in considering this, noted they did not interact beyond polite greetings, and fairly concluded there was no conflict of interest. Approaching Dr Wagner for comments had nothing to do with Dr Wagner’s seniority or age or the Claimant’s age; the Respondents were following the Misconduct Policy guidance. We find that it was appropriate for Professor da Rold to be appointed to the investigation committee.[33]The Respondents also considered Dr Rand for the committee. The Claimant alleges that by rejecting Dr Rand from the committee (Dr Rand being someone the Claimant considered had relevant expertise to determine whether the allegation of plagiarism was well founded) was a move taken to protect Dr Wagner as the more senior fellow. Again the allegation is misconceived on the facts. It was not the committee appointing its membership, it the RP, who initially considered Dr Rand only subsequently to conclude he was not suitable as his relationship with Dr Wagner presented a conflict of interest. In reaching this conclusion, Dr Whitelock was guided by the wording of the misconduct policy at the preliminary investigation stage, which states: “The Head of the institution may replace either or both of the members of the Committee of Inquiry if the respondent is able to show reasonable grounds in writing that either or both members are not appropriate or are likely to be biased.”[34]When Dr Rand was proposed to Dr Wagner she informed the Respondents that Dr Rand was a friend and had been her house guest when he first moved to Cambridge. Appropriately the RP made an objective decision in line with policy that Dr Rand should not be on the committee due to a personal friendship with Dr Wagner, thereby ensuring integrity in the makeup of the committee. In no way did the decision protect Dr Wagner. Indeed, it protected the Claimant by ensuring the committee did not include a friend of Dr Wagner. The Claimant was not invited to respond to panel composition as the policy did not provide this guidance and for no other reason. Based on the fact that the Respondents were following the wording of the Misconduct Policy, we find that the decision not to appoint Dr Rand had nothing to do with Dr Wagner’s seniority or age or the Claimant’s seniority.[35]On 11 November 2020 Dr Wagner submitted her written response to the preliminary committee.[36]The Claimant complains that the preliminary committee did not engage an expert. It was not required to do so. The First Respondent’s Misconduct Policy at the preliminary stage states that the Preliminary Committee should have “experience in the relevant field” which is a much lesser standard than at the next, formal stage which requires that “members must possess the necessary expertise to examine the evidence”. The Claimant’s view is that appointing a committee who could not read Hebrew/Arabic script was a failing in the selection of the committee as this skill requires specialist expertise. The Complaint Letter and supporting documents did not contain Hebrew/Arabic script. Dr Pearn and Professor da Rold were both academics, familiar with concerns about plagiarism, and both had research experience in the field of medieval scripts. Neither can read Hebrew/Arabic script. However, at the preliminary investigation stage, the committee to which they were appointed, the Misconduct Policy did not require them to be experts. In appointing academics to the committee that could not read Hebrew/Arabic script, the Respondents were complying with the requirements of the Misconduct Policy.[37]The Misconduct Policy makes it clear that the preliminary stage is a initial assessment of the evidence presented by both parties; it is the beginning of the process. Other than one script, (for which a translation was provided), none of the documentation was in Hebrew/Arabic script. Indeed the subject matter of the allegation was an idea, not a script. Dr Pearn and Professor da Rold had academic and research experience of medieval scripts, a relevant field. Their appointment by the Respondents to the Preliminary Committee complied with the requirements of the Misconduct Policy. The Respondents did not appoint to or engage an expert at the preliminary stage as the policy did not require one. When, at the next stage of the process the Misconduct Policy mandated that an expert was required, the Respondents sought relevant expertise. The appointments were policy guided; there is no evidence they related to the Dr Wagner’s age or seniority or the Claimant’s age.[38]The Claimant complains that the First Respondent withheld evidence by redacting the bullying and harassment complaints from the Complaint Letter before it was sent to the preliminary committee for the plagiarism investigation. We have considered the full and redacted versions of the letter. We agree it is the references to the allegations of bullying and harassment which are redacted. Dr Morgan and Dr Healy told us this was common practice and there were many examples of complaints with several elements, governed by different policies, where a similar approach had been taken to keep the distinct allegations separate as they fell within separate policies; this practice was explained to the Clamant when she objected in November 2020. There is no evidence the redactions in the Complaint Letter were made because of Dr Wagner’s age or seniority or the Claimant’s age.[39]The Claimant says she sent her 10 November 2020 email to Dr Whitelock, Dr Healy and Ms Leal in the public interest, concerned about a possible criminal offence. We have considered this email. It details the Claimant’s concerns her Complaint Letter was redacted before being shared with the preliminary committee. There is an oblique reference to future students but there is nothing in the letter can be interpreted as an expression of concern that the First Respondent is somehow involved in a criminal offence or that it will not investigate the allegations of plagiarism. There are no concerns raised about specific colleagues or students. We find the purpose of this email was personal; to ensure the preliminary committee received a full version of the Complaint Letter.[40]On 13 November 2020 the Claimant emailed Professor Young expressing her concerns about the First Respondent’s ability to handle case fairly; she does not suggest there has been a failure to investigate her concerns nor refer to any concerns about a criminal offence. The email complains about the evidential process; there is no reference to concerns about other students and no public interest element to this email. The Claimant’s email of 24 November 2020 to Dr Morgan is written in a similar vein; she expresses concerns about redactions in Complaint Letter, the fact she has not seen Dr Wagner’s evidence and complains about comments Dr Morgan has made in previous correspondence. There is no expression of a concern about a criminal offence nor a failure to investigate the plagiarism allegations. It is a focused email expressing how the Claimant felt the process was disadvantaging her. In no way is the email framed in the context of specific concerns about the treatment of other students. The Claimant emails Dr Morgan again on 3 December 2020; again she expresses her personal view of the process and raises concerns that she considers she is being treated differently to Dr Wagner. Quite simply there is no reference to specific concerns she has about others in this email. We find to suggest now that these emails were sent in the public interest disingenuous.[41]The First Respondent took on board the Claimant’s concerns and when the Claimant expressed her firm view that the preliminary committee required the context of the other allegations to inform its investigation, the First Respondent acknowledge her concerns and removed the redactions. The preliminary committee received an unredacted version of the Complaint Letter on 18 December 2020, before it send its preliminary report to Dr Whitelock. Indeed, during cross examination the Claimant conceded that this alleged act was intended to focus the committee on the Misconduct Complaint and not the Dignity at Work Complaint as the processes had to be separated due to separate policies for each. There is no evidence the redactions in the Complaint Letter were made because of Dr Wagner’s age or seniority or the Claimant’s age.[42]The Claimant alleges that on 4 December 2020 she attended a teams meeting with Dr Morgan at which Dr Morgan told her the First Respondent had a practice of “protecting more senior staff against false claims”. Dr Morgan denies saying this, telling us: “I do not recall that exchange but this is so far away from the University’s policy and my own understanding of what my job is and I don’t think I could have used those words and it is not a reflection [of University practice]. The University does have to protect staff in many ways but we have a very clear policy of investigating concerns so we do right by our staff so we ensure that research put out into the world from the University of Cambridge is trustworthy and has integrity.”[43]It is curious given how fastidious the Claimant was in raising her concerns about things said and done during this time in her many emails to the Respondents that she does not mention this alleged statement by Dr Morgan. The first time it is referenced by the Claimant is in the April 2022 ET1. The Claimant references this meeting in her witness statement but does not mention Dr Morgan saying this or anything similar. Given her silence about this, until the claim was submitted, and the fact she told us the claim was send to the tribunal by her lawyer at that time, without her having had the opportunity to read it, we prefer Dr Morgans recollection that he spoke in this meeting about the need to do right by staff in these circumstances and did not suggest in any way the First Respondent had a practice of protecting more senior staff.[44]The Claimant says in this meeting she expressed concerns for other students. The only record of this meeting is in the Claimant’s further and better particulars of claim. The Claimant’s evidence is a short paragraph in her witness statement. Neither records that she expressed specific concerns about other students. We find she did not make comments at this meeting in the public interest. It was, as Dr Morgan recalls, a discussion focused on the Claimant’s concerns with the plagiarism investigation and her views about how it should be conducted differently.[45]The Claimant was interviewed by the preliminary committee on 11 January 2021. She alleges that Professor da Rold had an aggressive manner when she asked the Claimant questions about future students’ work being plagiarised. Dr Healy recalls the meeting being tense, but does not recall Professor da Rold’s questions having an aggressive tone. Dr Adolphson, who attended the meeting to support the Claimant, recorded in subsequent correspondence concerns about a question regarding future students. However, he did not intervene during the meeting to express any concerns about the line or manner of questioning and the Claimant has not called Dr Adolphson to provide the tribunal with his recollections of the meeting, and Professor da Rold’s manner. Explaining she was not aware of Dr Adolphson’s views on her questions until she received the evidence for this hearing, Professor da Rold told us: “I don’t remember what I asked, I asked a colleague [to recall]. Dr C was absolutely certain [Professor da Rold asked a question about future students]. As a director of studies I was assessing the risk to other students. The purpose of the question was to assess risk to other students.”[46]This meeting was minuted in manuscript note form and not recorded. Parties could not agree on the contents of the written record, so the minutes were not finalised until June 2021, before which the Second Respondent received two versions with the disputed sections highlighted.[47]We find it credible that a question about future students was asked by Professor da Rold; a reference to “future” is recorded in the manuscript notes and the Claimant refers to concerns about future students in her Complaint Letter, which the committee had read prior to the meeting.[48]During the many email exchanges to finalise the minutes, the Claimant does not raise concerns about the manner of Professor da Rold’s questioning, only the type of questions (non-specified questions in the 6 March is an example) and content of the written record. The Claimant’s focus at the time is inclusion of the word “future” in the final version of the minutes. Had she been concerned about an aggressive manner, on balance, given that she was robust in expressing her concerns about the process throughout, we find that she would have raised this concern at the time, or at some point during the process, particularly given the length of time it took to try and agree the minutes of the meeting. Taking account of the fact she did not to so, that Dr Healy did not consider Professor da Rold’s manner aggressive, that Dr Adolphson did not raise concerns about Professor da Rold’s manner at the time and Professor da Rold’s evidence to the tribunal about the duty of care she has to students in her role as a director of studies we find that the meeting was tense for all, but Professor da Rold was not aggressive to the Claimant or to anyone or in any way during the meeting.[49]On 6 March 2021 the Claimant emailed Dr Morgan. We have considered this email. The Claimant is expressing concerns about the contents of the January meeting minutes, specifically the question about future students. The Claimant suggests that the First Respondent is facilitating plagiarism and bullying by senior staff of junior staff and students. Again, the Claimant does not provide specific examples of other staff or students she is concerned about. We find that this reference is limited to her own experience with Dr Wagner. The email is clear on its face that the concern being raised by the Claimant is that she is not happy with how the First Respondent is investigating her Plagiarism Complaint. She did not refer in the letter, nor has she presented to the tribunal evidence that she had knowledge at that time that other colleagues or students who had submitted plagiarism complaints were not having them investigated. To suggest in the complaint before the tribunal that the communications were sent at that time to raise concerns she had for other colleagues and students is simply not credible. By her own admission in evidence to the tribunal, the Claimant had in mind that she was subject to a wrong (plagiarism of her work by a colleague) and she was concerned the First Respondent was not investigating it fairly in her view.[50]The preliminary committee finalised its report in June 2021, the Claimant receiving a copy on 21 June. The Claimant and Dr Wagner were given an opportunity to provide their comments on the report before a decision was made by the RP. Having considered the preliminary report, in August 2021 Dr Whitelock asked the preliminary committee to interview Professor Khan and Dr Outhwaite, given their experience of dating medieval documents. The preliminary committee collated the responses, which were reviewed by Dr Whitelock as part of the next stage of the process.[51]On 9 September 2021 the Claimant emailed Dr Morgan telling him that one of her main motivations in bringing the Plagiarism Complaint was that “it be ‘on record’ so that if future students or post docs experience similar treatment from Dr Wagner, and it they choose to raise the issue with HR or the Research Office, their complaints cannot be so easily dismissed”. While the Claimant is referring to other students she does not raise concerns about specific students nor refer to a criminal offence or failure to investigate. Rather she told us her motivation was to ensure the outcome was recorded. This email was not sent in the public interest; it spoke only to her complaint and the outcome she was seeking.[52]In a further email to Dr Morgan on 24 September 2021 the Claimant chases for an outcome to the preliminary investigation. Again, she does not express concerns about others. It is nonsensical to suggest that there is a failure to investigate as investigation is ongoing. There is no concern raised about a criminal offence. A 4 October 2021 email to Dr Morgan again raises previous concerns about moving the case from FAMES to CUL. There is no reference to a failure to investigate or criminal offence; the email is personal to her complaint and no reference to other students is made.[53]It is noteworthy the Claimant does not refer to the emails after 24 November 2020 as part of a whistleblowing complaint in her original claim form. Having considered the content of the emails we have concluded they were not emails expressing concern for others and it is nonsensical to suggest that were expressing a failure to investigate as the emails were raising the Claimant’s concerns about the ongoing investigation which was actually taking place.[54]Therefore, we find that it is not credible the Claimant considered that she was blowing the whistle with these communications when sending them. Regretfully, this is a case where correspondence was added in a second claim (cojoined with the first) which resulted in misrepresenting correspondence in this way to support the claim and not, in our judgment, an accurate reflection of what the Claimant was thinking at the time of writing these communications. Had the Claimant genuinely thought she had blown the whistle with these emails, she would have included them in the April 2022 claim, or provided an explanation as to why she did not[55]Prior to Dr Whitelock making a final decision, she sought input from Professor Khan and Dr Outhwaite, satisfying the requirement in the Misconduct Policy to seek expert input. Dr Healy sent the information from Professor Khan and Dr Outhwaite to the Claimant and Dr Wagner, who both had the opportunity to respond, in the manner they wished, without restriction by 25 October 2021. Both did; both were told their respective responses (C 13 October 2021, Dr Wagner 28 October 2021) would not be exchanged with the other. They were treated equally. Indeed, in sharing the documents with the Claimant, the RP went beyond the guidance in the Misconduct Policy which only requires the final report (collating all relevant information, which we find includes the input from Professor Khan and Dr Outhwaite) to be shared with the respondent to the allegations for comment (Dr Wagner). The Policy states: The respondent(s) will be provided with a copy of the report to comment in writing on the report and its findings within 28 days."[56]The Claimant alleges that this amounts to Dr Wagner being allowed by the Respondents to change her position and submit further evidence (class-marks for the Mosseri catalogue referred to by Dr Wagner, the “Mosseri Evidence”). It does not. The Second Respondent was following the policy; indeed the RP went beyond the requirements of the Misconduct Policy in directing Dr Healy to share the information received from Professor Khan and Dr Outhwaite with the Claimant, inviting both for their comments.[57]The documents evidence that Dr Wagner’s headline defence remained the same; that she was independently qualified to carry out the work. She submitted additional evidence to support this when invited to respond to the expert’s views. The Respondents were complying with due process; Dr Wagner was subject to very serious allegations and, guilty or not, she was entitled to defend herself. It is difficult to see why the Claimant would object to this. Her allegations were clear from the outset. She did not need to change her position. She was given the same opportunity as Dr Wagner to respond to the expert’s contributions. She did.[58]Yet she is objecting to the RP following due process and giving Dr Wagner the opportunity to defend herself; indeed going beyond the requirements of the Policy to give the Claimant the right to reply to the evidence also. It was quite right and proper that the RP gave both parties the right of reply to expert evidence in the case. The same process would be followed in any court and tribunal proceeding.[59]Professor Jim Aitken was appointed as an independent expert on 8 October 2021; his report was delayed. In any event, the RP had sought views from individuals with “the appropriate qualifications and experience in the relevant field” in seeking input from Professor Khan and Dr Outhwaite thereby satisfying the requirements of the Misconduct Policy at the formal investigation stage. We find that the RP was guided only by the policy (indeed going beyond it’s guidance for the benefit of the Claimant) only; there is no evidence that the decisions to invite comments were determined by Dr Wagner’s or the Claimant’s age. They could not be; the Claimant was given the same opportunity to respond as Dr Wagner.[60]On 23 November 2021 Dr Whitelock shared her initial outcome with the Claimant and Dr Wagner. On 25 November 2021 the Claimant submitted a grievance to the Vice Chancellor about the handling of the Plagiarism Complaint. Professor Blackwell conducted the investigation into this grievance, which he did not uphold. On 13 September 2022, having received Professor Aitkin’s report on 8 July 2022, Dr Whitelock overturned her original decision and concluded that there was a prima facie case to answer in respect of the first plagiarism allegation.[61]The Claimant alleges Dr Whitelock did not provide her with the Mosseri Evidence until 16 December 2021. This is correct; this was consistent with the approach taken by Dr Whitelock not to exchange the Claimant and Dr Wagner’s responses with the other without their consent. Indeed, when on 20 January 2022 the Claimant was asked for permission to share Section A of her response with Dr Wagner as she had raised new allegation, the Claimant declined. Dr Whitlock’s approach, seeking approval before sharing the October responses was consistent, However, in this example we find that the Claimant did not respond as she expected to be treated. There is no evidence that the way Dr Whitelock approached the responses was guided by Dr Wagner;s seniority or age or the Claimant’s age.[62]While the process was lengthy, with a draft final report upholding the complaint in July 2024, we find that the Respondents did follow the policy guidance on when to appoint an expert. It is the Claimant who misread and misapplied the policy, taking the view it required an expert to be appointed by the preliminary committee, something which the policy does not require. The facts show that Dr Wagner was not protected by anyone involved in the process; for the reasons stated above, we find the treatment of the Claimant and Dr Wagner during the process was informed only by the wording Misconduct Policy. The decision taken which allowed Dr Wagner input where the Claimant was not consulted (for example on the members of the preliminary committee) was in line with the Misconduct Policy at that time. Two experts were consulted by Dr Whitelock before she made her final decision, in line with the policy. When expert evidence was received the Claimant and Dr Wagner were treated equally by the Second Respondent; both were invited to comment. Dr Wagner’s need to do so was greater given the allegations she was facing. Due process had to be followed and it was. The process was slow for everyone involved for the reasons stated.[63]There is no evidence that the approach taken by the Respondents was influenced by Dr Wagner’s seniority or age of the Claimant’s age. Dignity at Work Complaint[64]On 14 July 2021 the investigation into the Dignity at Work Complaint started. The Claimant alleges that there were excessive delays in starting this process, given she submitted her Complaint Letter on 7 July 2020. It did take a year and a week from receipt of the Complaint Letter to start this process. We find the primary reason it did not start until this time was the Claimant’s election that the 2 investigations take place sequentially. We have found the Claimant was not told by Ms Leal this first investigation would take 3 to 6 months. At no time before the start of the Dignity at Work Investigation does the Claimant express concerns about this choice, or ask to change this, or ask that the Dignity at Work Investigation is started, given the length of time the plagiarism investigation is taking. We find her concerns about the process were added as part of the tribunal claim and not something she was focused on at the time.[65]This misconduct investigation process concluded, initially, with the preliminary committee’s 21 June 2021 report. The second investigation followed, as agreed, a few weeks later.[66]Without question the plagiarism investigation was slow. Both parties are accountable for this. The Respondents in taking several weeks to finalise the preliminary committee, due to conflict concerns raised by Dr Wagner, and then several months to finalise the report, slowed the correspondence evidences, by lengthy and frequent concerns raised by the Claimant when the process did not accord with how she felt it should be addressed (even when the First Respondent was following to the letter its policies to which the Claimant had access). Indeed, we find that concerns the Claimant raised during this time relied on what she felt the Misconduct Policy should have said, not what it did in fact say. These exchanges, generated by the Claimant, certainly slowed the process. Therefore, we find that both parties were responsible for the process taking as long as it did.[67]On 31 January 2022 the First Respondent received an external investigation into the Dignity at Work Complaint it had commissioned from B3Sixty. Dr Whitelock discussed this report with the Claimant on 4 April 2022.[68]In her 6 May 2022 report, having interviewed Dr Lundberg (who was witness to Dr Wagner’s comment) at the Claimant’s request, Dr Whitelock did not uphold the complaint. Dr Whitelock told us in not upholding the complaint, she did not explicitly accept the comment was banter explaining that she agrees the comment was poorly phased statement. In reaching her decision Dr Whitelock told us she was guided by the wording of the Dignity at Work Policy, specifically the requirement to look at whether the incident had the effect of (objectively) violating other people’s dignity. Dr Whitelock told is she weighed how the Claimant said she felt, Dr Lundberg’s statement and Dr Wagner’s explanation by reference to the policy wording, concluding that what the Claimant had said she felt at the time did not, in Dr Whitelock’s assessment, match the threshold the definition required, having taken guidance on the definition. While Dr Whitelock did not reach the conclusion the Claimant wanted, we find that it is simply not the case that she did not take the decision seriously. Quite the opposite in fact; Dr Whitelock’s evidence to the tribunal made it clear to us that the decision weighed heavily on her mind, telling us she was “grateful for an appeal …grateful that this [her decision] could be checked on appeal.” There is no evidence before us that Dr Whitelock’s decision related to Dr Wagner’s seniority or age, or to the Claimant’s age.[69]On 16 May 2022 the Claimant submitted an appeal to the Dignity at Work outcome. The appeal was chaired by Professor Ellis. Unanimously on 11 August 2022 the panel of three did not uphold the appeal. In her witness statement and oral evidence Professor Ellis shared with the tribunal a very detailed explanation of the panel’s analysis of the evidence regarding the comment, telling us that they had to navigate 3 versions of the comment: “…..the fact there were 3 versions convinced the committee [the comment] did happen. We had to work out the likely motivations. As a committee we viewed Dr Wagner as a unreliable witness and we found ourself giving credence to Dr Lundman’s testimony as he did not take offence and did not provide a ropost. So while we considered Dr Wagner unreliable, Dr Lundberg also said he sensed no malice and balancing against Dr Lundberg’s recollection with C and Dr Wagner’s evidence was the reason the committee reached the decision it did. Although the committee took very seriously Dr Connolly’s distress in weighing up the evidence we still had to judge the incident against the register of seriousness in the Dignity at Work Policy and while we had a great deal of sympathy for Dr C which is why we wrote what we wrote and we could tether the comments to the policy.”[70]Professor Ellis’ explanation to the tribunal was clear, eloquent and entirely consistent with the panel’s report. Without question, the panel applied its mind to the evidence by reference to the policy. The reasons for not upholding the appeal were reasoned and thoughtful. There is no evidence before us that the panel’s decision related to Dr Wagner’s seniority or age, or to the Claimant’s age.[71]The Claimant complains that the Respondents did not take seriously or uphold her grievance. By the chronology of her claims (April 2022 and March 2023) this cannot be the grievance conducted by Professor Blackwell into the plagiarism investigation as she was not informed of the outcome until 3 July 2023, when Professor Blackwell issued his final report, after the Claimant had submitted both claims. At the hearing the Claimant confirmed this claim related to the failure to uphold the Dignity at Work Complaint, the facts for which we have addressed above.[72]The Claimant alleges that her health and wellbeing were damaged as a result of this process. The evidence before the tribunal is she suffered a medical episode during this time. We have seen from the translated documentary evidence submitted to the tribunal by the Claimant that the doctors assessing her were aware of the situation with the complaint. However the medical record shows the doctor concluded the cause of the medical episode was “unclear”. We prefer the official medical record that the cause of the medical episode was unclear and find that this evidence does not support the Claimant’s assertion that the process damaged her health and wellbeing.[73]At this time the Claimant elected to reduce her working hours, she says to deal with this matter and as a result she suffered a loss in salary. We have seen the paperwork confirming she did reduce her hours effective 1 November 2020. However, mindful that the Claimant was legally represented in submitting her claim and at the start of this hearing, we note that the Claimant has not provided supporting evidence (such as medical evidence) that this was necessary and a result of her bringing the complaint.[74]The Claimant left the First Respondent’s employment as a result of the investigations. She claims she did so due to the mishandling of the investigation and the fact she was made to feel the wrongdoer. Based of the parts of the process about which the Claimant has complained to the tribunal, we have found that the Respondents followed policy in the handling of the investigation. The correspondence of all involved in the processes on the part of the Respondents is professional and courteous. We have found that Professor da Rold was not aggressive in the January 2021 meeting. To the extent that the Claimant felt the wrongdoer, this is her perception likely based on the fact that, even though the process followed accorded with the First Respondents policies at this time, it did not follow the path wanted by the Claimant, as her emails make clear. Issues[75]The issues considered by the tribunal are set out in the Case Management Order of Employment Judge Tynan dated 26 January 2023 and sent to the parties on 16 February 2023; this was revised slightly by the parties between the case management hearing and the final hearing, and final version is set out below. At the hearing parties clarified parts of this list, for example the criminal offence on which the Claimant relies in her public interest disclosure claim. The additional information is addressed by the tribunal in our findings of fact and conclusions.a. A. Jurisdiction 1. Claim form 1 was presented on 22 April 2022. Acas Early Conciliation commenced on 9 February 2022 and the Early Conciliation Certificate was provided on 22 March 2022. Accordingly, any act or omission that took place before 8 November 2021 is potentially out of time. Claim form 2 was presented on 10 March 2023 a continuing act of the first claim. Acas Early Conciliation commenced on 8 February 2023 and the Early Conciliation Certificate was provided on 10 February 2023.1.1 Given the date the claim form was presented and the dates of early conciliation, some complaints may not have been presented in time.1.2 Were the discrimination complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:1.2.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates?1.2.2 If not, was there conduct extending over a period?1.2.3 If so, was the claim made to the tribunal within three months (plus early conciliation extension) of the end of that period?1.2.4 If not, were the claims made within a further period that the tribunal thinks is just and equitable? The tribunal will decide:1.2.4.1 Why were the complaints not made to the tribunal in time?1.2.4.2 In any event, is it just and equitable in all the circumstances to extend time? Discrimination claims 2. Which, if any, of the Claimant’s complaints are prima facie out of time, having regard to ss. 123(1)(a) and 123(3) Equality Act 2010 (“EqA”) (discrimination) and the ACAS Early Conciliation provisions in s 140B EqA? 3. Can the Claimant show that there was conduct extending over a period which is to be treated as done at the end of that period? 4. In respect of those complaints that are prima facie out of time, does the tribunal nevertheless have jurisdiction to determine them, on the basis that they were presented within such other period that the tribunal considers to be just and equitable (pursuant to s.123(1)(b) EqA)? Whistleblower detriment claims 5. Does any or do all of the Alleged Detriments below (to the extent that they are found to be detriments) amount to part of a series of similar acts or failures within the meaning of s48 ERA? 6. If not, were any of C’s complaints brought outside the relevant time limit specified in s48 ERA? 7. If not, should the tribunal extend the time limit for a reasonable period because it is satisfied that it was not reasonably practicable for the complaint to have been presented in time?b. B. Direct discrimination because of Age 8. Did the First Respondent subject the Claimant to the following treatment? i) From 7 July 2020 to 23 September 2020: Failing to take complaint seriously removing from FAMES to CUL ii) From September to November 2020: investigation committee protecting Dr Wagner by i) rejecting Dr Rand from the investigation committee; and (ii) choosing Dr da Rold to be on the investigation committee iii) 29 July 2020 - separating bullying and plagiarism complaint reducing the impact iv) From 7 July 2020 to 14 July 2021: Excessive delays in starting the Dignity at Work investigation v) September 2020 – June 2021: Respondent did not engage an expert as part of the plagiarism preliminary committee vi) Around October / November 2021: allowing Dr Wagner to change her position and submit further information vii)(i) the Respondent withholding evidence between 7 July 2020 and 18 December 2020; and(ii) Dr Whitelock not providing the Claimant with Dr Wagner’s evidence provided by Dr Wagner in October / November 2021 at any point prior to March 2023 viii) 11 August 2022: Failure to uphold Claimants Dignity at Work complaint and subsequent appeal ix) 11 January 2021: aggressive way Dr da Rold asked questions about future students’ work being plagiarised x) 6 May 2022: Dr Whitelock accepted Dr Wagner’s suggestion that it was banter and there was no malicious intent. 9. Has the First Respondent treated the Claimant less favourably than it treated or would have treated the comparators? The Claimant relies on a hypothetical comparator. 10. Was such less favourable treatment because of age? 11. If so, can the First Respondent show that the treatment complained of was a proportionate means of achieving a legitimate aim? The First Respondent reserves its position in this regard. C Indirect age discrimination 12. Did the First Respondent apply a provision, criterion or practice (“PCP”) to the Claimant? Claimant relies upon the following PCP:- a) Practice of protecting more senior staff members against false claims 13. If yes, did the First Respondent apply, or would it apply the alleged PCP to persons with whom the Claimant does not share her age? 14. If yes, does the alleged PCP put or would it put persons with whom the Claimant shares her age at a particular disadvantage when compared with persons whom are older and more senior? 15. If yes, did the application of the PCP put the Claimant at that disadvantage? The Claimant relies upon: i. Unfair and unwarranted treatment during the investigation. ii. Damage to health and wellbeing. iii. Loss of salary due to the fact that the Claimant had to reduce her hours in order to deal with this matter. iv. Loss of career at the University and the loss of trust and confidence in the mishandling of the investigation and the fact that the Claimant was made to feel as the wrongdoer. v. Failure to fully investigate the plagiarism and thus protecting Dr Wagner. vi. The Claimant was subjected to an aggressive, unprofessional approach by the plagiarism Investigation Committee (preliminary investigation). vii. Failing to follow their own Policy and procedure in regard to appointing the relevant expert for the final committee. 16. If yes, can the First Respondent show that the PCP is a proportionate means of achieving a legitimate aim? The First Respondent reserves its position in this regard. D Public Interest Disclosure (ss47B) 17. Did the Claimant make any protected disclosures? A) Criminal offence relied upon: concealment and dishonesty B) Legal obligation relied upon: failure to investigate allegation of plagiarism 18. C relies on the following disclosures: i. On 7 July 2020 formal grievance to Head of School of Arts and Humanities Prof. Chris Young and Prof. Mickey Adolphson [ET1 7]. (43B(1)(a) (b) and (f) of ERA). ii. 10/11/2020 – email to Dr Whitlock, Sinead and Kusam [FBP 7.2/7.3] ( 43B(1)(a) (b) and (f) of ERA). iii. 13/11/2020 – email to Prof Young [FBP 7.2/7.3] (43B(1)(a) (b) and (f) of ERA). iv. 04/12/2020 – meeting with Dr Morgan & Ms Frampton [FBP 7.2/7.3] (43B(1)(a) (b) and (f) of ERA). v. 24/11/2020 – email to Dr Morgan [FBP 7.2/7.3] (43B(1)(a) (b) and (f) of ERA). vi. 03/12/2020 – email to Dr Morgan [FBP 7.2/7.3] (43B(1)(a) (b) and (f) of ERA). vii. 06/03/2021 – email to Dr Morgan [FBP 7.2/7.3] (43B(1)(a) (b) and (f) of ERA). viii. 09/09/2021 – email to Dr Morgan [FBP 7.2/7.3] (43B(1)(a) (b) and (f) of ERA). ix. 24/09/2021 – email to Dr Morgan [FBP 7.2/7.3] (43B(1)(a) (b) and (f) of ERA). x. 04/10/2021 – email to Dr Morgan [FBP 7.2/7.3] (43B(1)(a) (b) and (f) of ERA). 19. What acts/deliberate failures to act and detriments does the Claimant allege? Claimant relies on the following acts/detriments (Para 78 ET1]: i. Damage to health and wellbeing ii. Unfair and unwarranted treatment during the investigation. iii. Loss of salary due to the fact that Claimant had to reduce her hours in order to deal with this matter. iv. Loss of career at the University, the loss of trust and confidence in the investigation due to the mishandling of the investigation, and the fact that Claimant was made to feel as if she was the wrongdoer. v. Failing to take seriously and uphold Claimant’s grievance. 20. Were the acts/deliberate failures done on the ground of the disclosures? 21. Are the alleged detriments at 3(i), 3(iii) and 3(iv) detriments in law? E Remedy 22. If any of the Claimant’s complaints are well founded, what compensation is he/she entitled to receive in respect of: (a) Compensation for unlawful discrimination, including any award for injury to feelings. (b) What, if any, declaration should be made by the tribunal? (c) What, if any, recommendation should be made by the tribunal?
Relevant law
[76]We set out below the law and legal tests relevant to the tribunal’s determination of this claim. Time Limits[77]Section 123 EqA applies to the claim of age discrimination and 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. Direct age discrimination (s.13 EqA 2010)[78]Section 13 EqA provides: (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. (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. (3)If the protected characteristic is disability, and B is not a disabled person, A does not discriminate against B only because A treats or would treat disabled persons more favourably than A treats B. (4)If the protected characteristic is marriage and civil partnership, this section applies to a contravention of Part 5 (work) only if the treatment is because it is B who is married or a civil partner. (5)If the protected characteristic is race, less favourable treatment includes segregating B from others. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (8)This section is subject to sections 17(6) and 18(7).[79]The burden of proof in a claim of direct discrimination is a 2 stage test. First, having identified a comparator of a different age in the same or similar circumstances as a claimant who has been treated differently to the claimant, a claimant must provide some evidence to the tribunal addressing the crucial question: was the behaviour complained about on the grounds of age. It is not sufficient for a Claimant to identify a difference in age and a difference in treatment. A claimant must provide some evidence to the tribunal linking the treatment to the protected characteristic of age.[80]If a claimant does so, only then does the burden shift to respondent to show that, on the balance of probabilities, the treatment is not because of age. It is important to note that the burden of proof does not shift to the respondent simply because of difference in age of persons in materially same circumstances (the claimant and named or hypothetical comparator). A tribunal needs some fact / evidence (in addition to age) from which it could conclude the reason for the treatment was age. The test only applies where a tribunal has upheld the alleged treatment as a finding of fact; that is the tribunal agrees that the claimant’s description of the treatment is accurate. If the facts as found by the tribunal having heard all the evidence differ the facts as described in the claimant’s complaint, the tribunal does not have to consider age as, quite simply, the tribunal has found the behaviour did not take place as alleged, or at all.[81]Any named comparator must be in the same or similar circumstances as the claimant at the time of the events complained about. Indirect discrimination (s.19 EqA)[82]Section 19 EqA provides: (1)A person(a) (A) discriminates against another(b) (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's. (2)For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if— (a)A applies, or would apply, it to persons with whom B does not share the characteristic, (b)it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c)it puts, or would put, B at that disadvantage, and (d)A cannot show it to be a proportionate means of achieving a legitimate aim. (3)The relevant protected characteristics are— age; disability; gender reassignment; marriage and civil partnership; race; religion or belief; sex; sexual orientation.[83]First, a claimant must establish as a matter of fact that a practice existed within a respondent’s organisation and, second, that a respondent applied the practice to individuals not in the claimant’s age group. A claimant must also establish that a group disadvantage exists before a claimant’s personal disadvantage and there is a corresponding link between the two.[84]If as a finding of fact a tribunal determines that the practice did not exist, then the tribunal does not need to consider the issue of age as, quote simply, if there was no practice as described by a claimant as a matter of fact, there cannot be indirect discrimination. Protected disclosure (s.43B ERA 1996)[85]Section 43B ERA provides (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)that a criminal offence has been committed, is being committed or is likely to be committed, (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)that a miscarriage of justice has occurred, is occurring or is likely to occur, (d)that the health or safety of any individual has been, is being or is likely to be endangered, (e)that the environment has been, is being or is likely to be damaged, or (f)that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed. (2)For the purposes of subsection (1), it is immaterial whether the relevant failure occurred, occurs or would occur in the United Kingdom or elsewhere, and whether the law applying to it is that of the United Kingdom or of any other country or territory. (3)A disclosure of information is not a qualifying disclosure if the person making the disclosure commits an offence by making it. (4)A disclosure of information in respect of which a claim to legal professional privilege (or, in Scotland, to confidentiality as between client and professional legal adviser) could be maintained in legal proceedings is not a qualifying disclosure if it is made by a person to whom the information had been disclosed in the course of obtaining legal advice. (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).[86]A claimant must show they possessed a reasonable belief that the disclosure tends to show the failure they complain about (by reference to the relevant subsection of section 43B(1)) and a reasonable belief that the disclosure was in the public interest. A key determining factor for a tribunal is to consider the wording of the communication and decide, on balance, whether the communication serves the private or personal interests of the worker, or wider public interest, considering all the circumstances.[87]The reasonable belief of a claimant at the time they make the communication is relevant; reasonable belief is primarily an objective. The tribunal applies the reasonable belief of an objective person in the particular subjective circumstances of the claimant. Essentially the reasonable belief of an objective person making the actual complaints made by this claimant. Detriment (s.47B ERA 1996)[88]Section 47B ERA provides: (1)A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure. (1A)A worker (“W”) has the right not to be subjected to any detriment by any act, or any deliberate failure to act, done— (a)by another worker of W's employer in the course of that other worker's employment, or (b)by an agent of W's employer with the employer's authority, on the ground that W has made a protected disclosure. (1B)Where a worker is subjected to detriment by anything done as mentioned in subsection (1A), that thing is treated as also done by the worker's employer. (1C)For the purposes of subsection (1B), it is immaterial whether the thing is done with the knowledge or approval of the worker's employer. (1D)In proceedings against W's employer in respect of anything alleged to have been done as mentioned in subsection (1A)(a), it is a defence for the employer to show that the employer took all reasonable steps to prevent the other worker— (a)from doing that thing, or (b)from doing anything of that description. (1E)A worker or agent of W's employer is not liable by reason of subsection (1A) for doing something that subjects W to detriment if— (a)the worker or agent does that thing in reliance on a statement by the employer that doing it does not contravene this Act, and (b)it is reasonable for the worker or agent to rely on the statement. But this does not prevent the employer from being liable by reason of subsection (1B). (2) . . . This section does not apply where— (a)the worker is an employee, and (b)the detriment in question amounts to dismissal (within the meaning of Part X). (3)For the purposes of this section, and of sections 48 and 49 so far as relating to this section, “ worker ”, “ worker’s contract ”, “ employment ” and “ employer ” have the extended meaning given by section 43K.[89]If a claimant establishes, on the balance of probabilities, that the disclosure was a protected disclosure, then the tribunal must consider whether the protected disclosure caused or was the reason for the detriment (provided that a claimant has established the detriment as a matter of fact), The the relevant test is whether the act or omission was materially influenced by the protected disclosure (in the sense that it had more than a trivial influence). Analysis & conclusions Direct age discrimination[90]Based on our discussions with the parties on the morning of the first day of the hearing (recorded above) and our findings of fact, we conclude that the Claimant’s pleaded claim (by reference to both the ET1 claim forms and attached documents and the claimant’s further and better particulars of claim) is misconceived in 2 key ways.[91]First, the Claimant conflates age and seniority. She complains, by reference to Dr Wagner, that Dr Wagner was treated more favourably because she was more senior and older. Age and seniority are separate and distinct. The focus of Claimant’s allegations is that the First Respondent treated junior staff less favourably than senior staff and therefore as Dr Wagner was both older and more senior that the claimant the First Respondent favoured Dr Wagner over the claimant in the investigation into the Claimant’s complaints about Dr Wagner . Yet, the Claimant accepted (as have the tribunal for the reasons stated in our findings of fact) Professor Blackwell’s evidence that senior staff can, and often are, younger than junior staff (who would thereby be older than colleagues holding a more senior position). A formulation that age and seniority are synonymous is fundamentally flawed as a matter of fact and is not a claim of age discrimination (seniority does not mean someone is older than those they are more senior than). The protected characteristic of age in the Equality Act 2010 is numerical age. It does not relate to seniority. The Claimant’s formulation of her claim is not within the jurisdiction of the tribunal. She has not proved that age and seniority are synonymous. Indeed, she accepted Professor Blackwell’s evidence that this is often not the case.[92]The claimant’s formulation of her age discrimination complaint is unfortunate, given the length of time and resources this case has required for all parties, particularly as the claimant had legal representation at the outset of her claim and at the start of this hearing.[93]Second, and the most fundamental flaw in Claimant’s claim is that she names Dr Wagner as a comparator in her complaint of age discrimination. On no interpretation, and taking the Claimant’s case at its highest, is Dr Wagner a comparator. Quite simply, Dr Wagner was not in materially the same or similar circumstances as the Claimant at the time of the allegations about which she complains. Dr Wagner was the respondent to the Claimant’s complaints to the First Respondent. Had an older colleague made similar complaints to the First Respondent about Dr Wagner and that older colleague been treated in the investigation process in a manner different to the way the Claiamnt was treated then that older colleague would have been an actual comparator for the purposes of this claim. However, that older colleague does not exist.[94]Despite the fact the Claimant was legally advised in the preparation of her claim, the Claimant’s case in her claim documents, witness statement and in large parts of her oral evidence focuses on allegations that she was treated differently to how Dr Wagner was treated. A claim with a comparator who is in materially different circumstances than the Claimant has little prospect of success. Indeed, the Claimant’s representative for the hearing, Mr Ramji, acknowledged on the first day of the hearing that Dr Wagner could not be a comparator due to her circumstances being very different from the Claimant at the time of the events about which the Claimant complains (the Claimant making allegations of plagiarism against the Dr Wagner).[95]These formulations of the claim (age synonymous with seniority and Dr Wagner as the key comparator) are curious given that the Claimant was legally represented throughout this process until day 3 of the final hearing when her solicitor came off the record without explanation. In this regard it seems the advice that Claimant received has failed her.[96]The issues with Dr Wagner as a comparator for this reason was explained to the Claimant by the tribunal repeatedly during the hearing, mindful of our obligations under Rule 2 of the Employment Tribunal Rules of Procedure 2013 and the fact that the Claimant unexpectedly found herself without legal representation. That said, the Claimant continued to advance a claim, including in her closing statement, that she had been discriminated by reference to Dr Wagner. For the reasons stated, that is not a claim the tribunal can consider or determine.[97]In any event, we have found that when the Claimant was treated differently to Dr Wagner, the treatment was guided by the First respondent’s policies which provided that a respondent to allegations is treated in a different way to the complainant in some parts of the process. We have found that had the Claimant been the same age as Dr Wagner, the Claimant would have been treated in the same way as she was in this case.[98]As Dr Wagner is not a comparator, we must consider a hypothetical comparator: someone of a different age who made the same or similar complaints to the First Respondent about Dr Wagner.[99]The evidential basis of the Claimant’s age discrimination claim with a hypothetical comparator is scant. The Claimant’s claim documents (ET1s, attached documents and further and better particulars of claim) do not put forward any examples of how the Claimant says a hypothetical comparator (of a different age making a claim of plagiarism against an older and more senior colleague) was treated differently. This may be because the Claimant’s focus in her direct discrimination claim was the misconceived comparison to Dr Wagner. That said, if there is not evidence before the tribunal for the, the tribunal cannot determine that a hypothetical comparator of a different age would have been treated differently to the Claimant had that comparator made an allegation of plagiarism.[100]We have found the following treatment about which the Claimant complains did take place, as a matter of fact, as described by the Claimant in her claim documents and evidence: 100.1. Redacting the Complaint Letter; 100.2. Not engaging an expert as part of the preliminary investigation into plagiarism; 100.3. Allowing Dr Wagner to submit further information; 100.4. Dr Whitelock not providing C with Dr Wagner’s Messori Evidence until March 2022; 100.5. Not upholding the Dignity at Work complaint and subsequent appeal; and 100.6. Accepting Dr Wagner’s explanation of the dinner comment[101]We have found that the Claimant has not identified any fact (in addition to age) or tangible evidence from which we can conclude the reason for this treatment was age and a hypothetical comparator of a different age making a complaint of plagiarism would have been treated differently than the Respondents treated the Claimant. Therefore, the Claimant has failed to identify the “something more” than age to explain why she considers her treatment was less favourable to a hypothetical comparator. For these reasons, we must conclude that the Claimant has not shifted the burden to Respondents to show a non-discriminatory reason for any treatment.[102]While the burden does not shift to the Respondent, and mindful this is not necessary as a matter of law, for completeness (mindful the Claimant unexpectedly found herself without representation on day 3 of the hearing), we note (to assist the Claimant’s understanding of the outcome) that in considering the evidence we have found that Respondents have provided explanations in no way related to age for the actions they took involving the Claimant during the investigations into her complaints. These explanations were shared with the Claimant or (in the case of written policies) should have been apparent to the Claimant when the decisions were made.[103]The explanations are as follows. 103.1. The Complaint Letter was redacted as two different policies and processes applied to the complaints therein and it was common practice to separate contents where more than one type of allegation was included in a complaint. It was explained to C the reasons for the redaction; in any event, the preliminary committee received a full version before making any decisions. 103.2. The Misconduct Policy did not require an expert to be engaged as part of the preliminary investigation into plagiarism. 103.3. Both parties were allowed to respond to the views expressed by Professor Adolphson and Dr Outhwaite which is why Dr Wagner to submitted further information to support her defence (which did not change in substance) that she was capable of producing the work herself. 103.4. Dr Whitelock did not providing C with Dr Wagner’s Messori Evidence until March 2022, having previously explained that any submissions of either party in response to Professor Adolphson and Dr Outhwaite’s views would not be exchanged. 103.5. Dr Whitelock and Professor Ellis (on appeal) provided reasoned explanations (to C at the time of their decisions and to the tribunal at the hearing) for not upholding the Dignity at Work complaint and subsequent appeal, by reference to the wording and threshold set by the First Respondent’s Dignity at Work Policy, which included why they had accepted Dr Wagner’s explanation of the dinner comment. In this regard they fulfilled their role with integrity by applying the threshold set by the First Respondent’s policy, Dr Whitelock finding this assessment particularly difficult.[104]As to the other allegations on which the Claimant relies in her direct discrimination claim, we have found that, as a matter of fact, the First Respondent did not treat Claimant as she alleges.[105]We have found that moving the complaint from FAMES to CUL was the First Respondent taking the complaints more seriously not less.[106]The seriousness with which Respondents took the complaint was illustrated by not appointing Dr Rand to the preliminary committee, given he was a personal friend of Dr Wagne. We have found Dr Rand was not appointed in line with policy to ensure there was no conflict of interest, a move that was taken to protect the Claimant from a perceived lack of objectivity on the investigation committee.[107]We have found that Professor da Rold was a member of the same college as Dr Wagner and nothing more; her appointment to the preliminary committee was entirely appropriate.[108]We have found that the plagiarism and bullying complaints were separated at the election of the Claimant when Ms Leal gave her the choice. The reason for doing so was different policies applied to each; there is no evidence before us that this decision was intended to, or did, reduce the impact of either investigation.[109]As to the length of the process, the Claimant conceded in cross examination that the length of the process had nothing to do with age. We have stated our findings on the reasons for the length of the process above.[110]There is no evidence before us that a hypothetical comparator (of a different age who made a plagiarism complaint) would have been treated differently from how the Respondents treated the Claimant. There is no evidence that the way the Claimant was treated was because of her age. The Respondents were following the wording and guidance in two policies; this amounted to due process. Those parts of the process about which the Claimant complains were not lacking in the way C alleges, nor were any of the decisions taken by the Respondents informed by the Claimant’s age. The claim of direct age discrimination fails. Indirect discrimination (s.19 EqA)[111]We have found, as a matter of fact, that the First Respondent did not have a practice of protecting more senior staff members against false claims. The Claimant based this alleged practice on something a comment she says Dr Morgan made in a teams meeting with her on 4 December 2020. The Claimant’s witness evidence of this meeting does not address this statement. Dr Morgan denied making the statement and, for the reasons stated above we preferred his evidence that he did not make this comment.[112]The Claimant has not presented any other evidence to support her assertion this was a practice the First Respondent employed; her claim this practice existed relies solely on a statement she alleges Dr Morgan made, which we have found was not the case. The claim of indirect discrimination must fail as the Claimant has not established that the First Respondent had the practice she alleges.[113]In reaching this conclusion we had in mind the case of(1) Mr A Chandhok(2) Mrs P Chandhok v Ms P Tirkey: UKEAT/0190/14/KN which we referenced several times during the hearing, and the EATs guidance the claim the tribunal must consider is the claim set out in claim document(s) (in this case the allegation about a statement allegedly made by Dr Morgan) and not any advancement of that claim during the course of the hearing. The alleged statement by Dr Morgan is the only factual allegation the Claimant relies on in her claim forms.[114]As we have found Dr Morgan did not say this we must conclude that the First Respondent did not have the practice alleged. Therefore, we do not need to consider the factual allegations of how Claimant says she was disadvantaged as the complaint of indirect discrimination fails because the Respondents did not have the practice alleged. Whistleblowing claim[115]The Claimant relies on 10 alleged protected disclosures and the following 2 grounds: 115.1. that she had in mind that a criminal offence has been committed, is being committed or is likely to be committed (clarified by Mr Jackson on day 2 of the hearing to be the offence of fraud under the Theft Act 1968) that “Dr Wagner was passing off C’s work without any citation and this was or could be an infringement of the UK’s Copyright laws” [sic]; and 115.2. that the Respondents failed, is failing or is likely to fail to comply with any legal obligation “to investigate the plagiarism fully or even to take it seriously”[116]For all of the communications put forward by the Claimant as protected disclosures, we have found (for the reasons stated above) that the Claimant was expressing her personal concerns about how the process was being handled or impacting her.[117]Save for the Complaint Letter, in each communication the Claimant was complaining about a stage in the process and why she considered there were failings. We have found the Claimant is not disclosing information in these communications; none contain specific information of concerns she has about colleagues or students. There are no references to colleagues or students who she considers at risk of a criminal offence committed by Respondents nor an example of a colleague or student whose allegations of plagiarism have not been investigated. Indeed there are no references to any students or colleagues who have made allegations of plagiarism.[118]We have found the communications, including the Complaint letter, overwhelmingly focused to the Claimant’s experience of the process she instigated with the Complaint Letter. Objectively the Claimant did not raise these concerns in the public interest; rather we have found, having closely examined the content of each communication, the Claimant was raising personal frustrations with each stage of the process. While some of the communications reference, usually in a closing sentence, concerns that other or future students are not treated in the same way, in our judgment, on balance, the wording the Claimant uses does meet the threshold to establish they were protected disclosures with specific concerns about colleagues and other students in mind.[119]Objectively, given the content of these communications, it is simply not feasible that the Claimant had in mind a criminal offence when she wrote the emails or met with Dr Morgan on 4 December 2020. We conclude that this was likely a label added as part of the claim; indeed, when the Claimant’s solicitor was asked by the Respondent to identify the criminal offence on day 1 of the hearing, he was unable to do so; on day 2 he referred to the offence being a (non-specific) offence under the Theft Act 1968. It is non sensical the Claimant was concerned the Respondents were failing to investigate, not least as all but the Complaint Letter express concerns about the ongoing investigation process. In this regard the this aspect of the claim does not make sense.[120]On the evidence before us, we conclude that the concern the Claimant had in mind when writing the letter was that she felt plagiarism was being facilitated by the First Respondent, which is not a criminal offence and not a matter for this tribunal. The Claimant’s own oral evidence is that she did not have in mind a criminal offence, just that something was wrong.[121]During her evidence the Claimant told us that her concern when writing the emails and during the meeting on 4 December 2020 (the communications on which she relies) was to ensure other students were not subject to the same treatment by Dr Wagner as she alleged in her complaint to the First Respondent. Her evidence was clear the concern was plagiarism. This does not align with her case in the April 2022 Grounds of Complaint that she had in mind a criminal offence under copyright laws nor Mr Jackson’s suggestion the criminal offence relied on was fraud under the Theft Act 1968. This part of the claim is also misconceived; UK copyright laws do not fail within criminal law or jurisdiction. In making these observations we note that, with the exception of 1 month in June 2024, the Claimant had legal representative throughout these proceedings; it is reasonable to for a tribunal to expect advisors to have knowledge of the law of England and Wales; it seems the Claimant’s did not.[122]Indeed, considering the Claimant’s evidence as to what was in her mind when she wrote the emails and the fact she told us that she did not have the opportunity to read the claim forms before they were sent to the tribunal, we conclude that the reference to a criminal offence has been added by her legal advisors at some point in the process, it seems without her consent.[123]As the Claimant’s representation at the hearing, Mr Ramjii, became ill after day 1 of the hearing and did not return and her solicitor, Mr Jackson, informed the tribunal in writing on day of the hearing he was no longer representing the claimant we are mindful that the Claimant found herself without legal representative at the hearing. When a party represents themselves it is incumbent on the tribunal at all times until judgment is delivered to be mindful of Rule 2 of the Employment Tribunals Rules of Procedure 2013 and ensure parties are on an equal footing.[124]Accordingly, during deliberations, when it became apparent that the claim did not reflect what the Claimant was telling us, we considered whether it was in the interests of justice to invite both parties views on an amendment to the claim as follows: that the plagiarism was not a criminal offence and the basis of the public interest disclosure was a legal obligation to prevent plagiarism. The communications relied on raise concerns about plagiarism. However, we decided such an approach was not in the interests of justice for the following reasons: 124.1. It simply does not make sense (as indeed Mr Jackson commented on day 2) that the Claimant’s concerns t that time were that the Respondent failed to investigate as parties agree and the Claiamnt own evidence is clear that there was an investigation. The Claimants complaint is that it was not investigated in the manner she wanted. Indeed, it rather begs the question why, given Mr Jackson’s comment, as her representative he did not make an application at the start of the hearing to amend the claim in these terms. He did not, nor did her previous legal representative. Nor did the Claimant, having had sight of the claim forms raise this. All continued with a claim (an alleged failure to investigate) which simply does not make factual sense when much of the evidence disclosed relates to an investigation. 124.2. Had an amendment been allowed by the tribunal (which was unlikely in any event give the practical prejudice to the Respondents at this late stage applying the guidance in the cases of Selkent Bus Co v Moore [1996] IRLR 661 and Vaughan v Modality Partnership [2021] IRLR 97) we conclude the judgment would be the same. That is because we have found that the communications relied upon by the Claimant were not made in the public interest and not protected disclosures as they are overwhelmingly about concerns the Claimant had with a process which was personal to the Claimant.[125]As we have found the communications relied on by the Claimant are not protected disclosures, we do not need to consider whether there is a causative link to the alleged detriments advanced by the Claimant. We note that we have found that, in any event, some of the alleged detriments did not take place as presented by the Claimant. Furthermore, leaving aside our conclusion the communications are not protected disclosures, the Claimant has not provided any evidence to establish how the communications have caused the treatment she alleges. For these reasons the whistleblowing claim must fail. Time Limits[126]For the complaints in the April 2022 claim form, any claims prior to 8 November 2021 are out of time. The Claimant did have the benefit of legal advice; however, for the reasons stated that advice failed the Claimant: Dr Wagner is not a comparator; there was no criminal offence as a matter of law; and there was an investigation into the Claimant’s complaints alleging plagiarism. Yet, the claim form and accompanying documents drafted the Claimant told us by her legal advisors are on the basis that Dr Wagner is a comparator for the direct age discrimination claim, that plagiarism was a criminal offence and that there was no investigation into her complaints. These aspects of the claim are either totally misconceived or factually incorrect. By her own admissions the Claimant told us that the claim forms were sent to the tribunal without her having read them. This is unfortunate at best.[127]The Claimant told us that the plagiarism investigation continued until September 2024. We have seen the draft July 2024 report which the Claimant included in the hearing files, and which upholds the allegations of plagiarism against Dr Wagner. Given the Claimant did not get a final conclusion to the process to which many of her claims relate until the weeks before the final hearing and indeed over 2 years from the submission of her first claim to the tribunal, we conclude it is just and equitable to extend the time for C to bring her claims of age discrimination. For this reason we have considered them.[128]As to the whistleblowing claim, we consider the complaints made part of a continuing act relating to a process started by the Claimant’s Complaint Letter in July 2020 and concluded with the First Respondent’s July 2024 report. Therefore the last of the detriments complained of (albeit not factually found) that the Claimant lost her career as a result, is in time as the process concluded at this point.[129]This was a case where many of the complaints were misconceived from the outset, despite the Claimant having legal advice. That is unfortunate for all parties involved who have expended time and resource to reach this point.[130]For these reasons it is the unanimous decision of this Employment Tribunal that: 130.1. The complaint of direct age discrimination is not well-founded and is dismissed. 130.2. The complaint of indirect age discrimination is not well-founded and is dismissed. 130.3. The complaint of being subjected to detriment for making a protected disclosure is not well-founded and is dismissed.