Miss O A Ajiga v Hertfordshire Partnership University NHS Foundation Trust and Ms M Hall: 3305865/2022 and 3315009/2022

EMPLOYMENT TRIBUNALS

Case No 3305865/2022, 3315009/2022

Between

Miss O A AJIGAClaimant

Hertfordshire Partnership University NHS Foundation TrustRespondent

Before

Employment Judge George

Members

Mrs A Brosnan

In person for claimant

Date 26 January 2026

JUDGMENT

The complaint of unfair dismissal is struck out.

REASONS

[1]By a letter dated 26 July 2022 the Tribunal gave the claimant an opportunity to make representations or to request a hearing, as to why the complaint of unfair dismissal should not be struck out because it has no reasonable prospect of success.

[2]The claimant has failed to make representations in writing, or has failed to make any sufficient representations, why this should not be done or to request a hearing. The complaint of unfair dismissal is therefore struck out.

[3]The claimant’s remaining claims remains listed for hearing on 1 February 2023. _____________________________ Employment Judge George Date: 27 September 2022

[1]The Claimant’s complaint of harassment related to sex under section 26 (1) of the Equality Act 2010 is not well-founded and is dismissed.

[2]The Claimant’s complaint of sexual harassment under section 26(2) of the Equality Act 2010 is not well-founded and is dismissed.

[3]The Claimant’s complaint of direct race discrimination under section 13 of the Equality Act 2010 is not well-founded and is dismissed.

[4]The Claimant’s complaint of harassment related to race against the First Respondent under section 26 (1) of the Equality Act 2010 is not wellfounded and is dismissed.

[5]The Claimant’s complaint of harassment related to race against the Second Respondent under section 26 (1) of the Equality Act 2010 is well-founded and succeeds. Case No: 3305865/2022 & 3315009/2022 10.7 Judgment with reasons – rule 62 March 2017

Introduction

[6]The Employment Tribunal asked the Second Respondent if she had any questions for the Claimant or any of the witnesses, and the Second Respondent stated that she did not.

[7]The First Respondent has submitted a witness statement for Mr Arnolfo Montano on the previous Friday. The Claimant was asked if she had any objection to the First Respondent relying upon the witness statement. The Claimant stated that how could she have an objection, it would be a travesty Case No: 3305865/2022 & 3315009/2022 10.7 Judgment with reasons – rule 62 March 2017 of justice not to allow the witness statement, but there would be an issue of costs. The Employment Judge explained to the Claimant that the issue of costs would be dealt with at the end of the case, and she could make her application then. Ms Crew explained that the First Respondent didn’t think to ask for Arnolfo Montano for a statement, which is why it was only since Counsel’s involvement that the statement was asked for. Ms Crew said that she thinks there is no prejudice, as there was a statement by Arnolfo Montano in the bundle already.

[8]The Claimant objected to Ms Crew's comments about Arnolfo Montano in the bundle. The Claimant stated that Ms Crew’s said that the statement was identical, but it is not. The Claimant said that she should have been put on notice about the statement, and there are discrepancies in the document.

[9]The Claimant had sent the Employment Tribunal a 92 pdf document on 30 September 2025 as an exhibit to her witness statement. The First & Second Respondents had been copied into the email with the link to the 92 pdf document. The Employment Tribunal asked the Claimant what the status of the 92 pdf document was and whether the pages that made up the document were in the current bundle.

[10]The Claimant then explained that she had sent exhibits in July to the First Respondent. The Claimant admitted that she did not send the First Respondent a list of all those documents, but she did send all her documents to them, and she didn’t know when. Ms Crew stated that exhibit 9 was not in the bundle and that the bundle that the Claimant had said that the bundle did not have her pdf document from page 828 onwards.

[11]The Claimant explained that there are links in the documents and audio and video of 39 minutes and 21 minutes. The Claimant explained that the video showed going into Forest House. The Claimant agreed to speak about the video in evidence so that the Employment Tribunal did not have to view the 39 minutes. Ms Crews agreed that the First Respondent agree to the Claimant talking about the video.

[12]The Claimant said that there were 4 recordings. Some were 2 mins, and some were longer. The Claimant agreed that they would tell us the exact minutes that we are the Employment Tribunal would need to listen to.

[13]Ms Crews stated that the First Respondent did not know the relevance of the recordings and what to listen to.

[14]Ms Crews disclosed an additional email dated April 2022 from the First Respondent. The Claimant had no objection to the email being labelled pages 904-906.

[15]The Claimant asked if she could record the proceedings. The Employment Judge confirmed that she could not. The Claimant then raised the issue of the cases against the First Respondent and the case against the Second Respondent being consolidated. She said that she did not want the consolidation and that it was traumatising for her. She said that she had not been able to sleep, and the reason she didn’t raise it before was that she didn’t know she had the right to separate the cases. The Employment Judge Case No: 3305865/2022 & 3315009/2022 10.7 Judgment with reasons – rule 62 March 2017 asked the Claimant if she understood the consequences of separating the cases. The Claimant said that she was told by Judge Brown that the first case would be heard in the first 3 days and the next case in the next 4 days.

[16]The Employment Judge explained that it doesn’t work like that. The Claimant then withdrew the application to separate the 2 claims. The Employment Judge asked the Claimant if she had any more applications. The Claimant confirmed that she did not. The second Respondent was asked if she had anything she wanted to say. The Second Respondent said she did not. The First Respondent was asked if they had any more applications. Ms Crew stated that the First Respondent requested that Ms Maxime Jones- Ghartouchent give evidence via CVP. The Claimant indicated that she had no objections to evidence via CVP.

[17]The Employment Tribunal took a break to read the documents. On return at 15:20, there was a discussion about the evidential value of the 30 minutes plus recording. The Employment Tribunal requested that Counsel listen and tell the ET whether the recording was contested the next day.

[18]The Claimant explained that there were pages missing from her 92 page pdf. She said that exhibit 8(b) (i)-(iv) were missing (these were emails of the Claimant reporting the alleged sexual assault to Rosalie Guy on 31 January 2022) and screenshots.

[19]The Employment Judge clarified that the Employment Tribunal did not need to see page 827, which had a video recording link, as it is about the space/cubicle which was not in issue. Exhibit 11 [822].

[20]The Claimant said that Mr Thomas had alleged that she left a one2one in his evidence at paragraph 11, and she wanted to issue a claim about it. The Employment Tribunal confirmed that it would deal with the issues in the case the following day, and any application by the Claimant to amend her claim.

[21]On day 2 (Tuesday 7 October 2025), the parties agreed additional days to hear the case, including remedies if that became relevant, as 26-28 January 2026. The parties also agreed to provide written submissions in the event that the evidence was completed by Friday 10 October 2025, if there was no time for oral submissions.

[22]The Claimant made an application for additional disclosure in relation to her history of sexual assault in the UK and her childhood history. The Respondent objected to the admission of such evidence on the basis of relevance. The Employment Judge explained that these matters may be relevant to remedies, but it was unclear what issues in the liability case they were relevant to. Ms Crew stated that in relation to the charge of sexual assault, there was no claim for personal injury, and so it is not relevant if it is not in this workplace, and according to the Tribunal, such a previous complaint brought was unsuccessful. The Claimant began arguing with Ms Crews about her previous claim. The Employment Judge asked the parties to stop arguing. Ms Crew stopped; however, the Claimant did not stop speaking. The Employment Judge requested that the Claimant stop speaking, and if she did not, the Employment Tribunal would adjourn. The Claimant eventually did stop arguing. The Employment Tribunal gave its Case No: 3305865/2022 & 3315009/2022 10.7 Judgment with reasons – rule 62 March 2017 decision and reasons for refusal to admit the documentation at this stage, but if remedies became relevant, then the documents could be added then.

[23]The Employment Tribunal that she had sent her application to amend to the Employment Tribunal. The Employment Tribunal took a break from 10:33- 11:08 to consider the Claimant’s written application to amend. On return, the Employment Tribunal explained to the Claimant the test regarding amendments and the balance of prejudice.

[24]The Employment Tribunal heard arguments from both parties. The First Respondent objected to the application. When the Employment Tribunal asked the Claimant if there were any other applications before we made our decision regarding the amendment application, the Claimant stated that, as far as she was concerned, it was a Caucasian court. The Employment Tribunal explained that the Employment Judge was not Caucasian but black like the Claimant, and whilst the non-legal member was Caucasian, the Employment Judge found this terminology offensive and that it was not acceptable. The Claimant said nothing in response but stated that she had no other applications, but provided the time stamps for the recordings that she wanted the Employment Tribunal to listen to.

[25]The Claimant then pointed out that counsel for the First Respondent, Ms Crew, had left a trolley suitcase in the Employment Tribunal during the break. The Employment Tribunal reminded Ms Crew that this was not acceptable and confirmed that there was nothing in the suitcase and not to do this again.

[26]The Employment Tribunal gave its decision that the Claimant’s amendment was not allowed and provided its reasons orally, which will not be repeated her.

[27]On day 3, (Wednesday 8 October 2025), the Claimant told the Employment Tribunal that she had sent an email at 16:39 on 07/10/25 complaining about the lack of fairness because Counsel left her bag in the Employment Tribunal the previous day. The Employment Tribunal read the email and noted that it also referred to the Claimant complaining that members of the public were laughing at her. The Employment Judge told the Claimant that the Employment Tribunal was not aware of members of the public laughing at her. The Employment Judge spoke to the tribunal room and told the members of the public and all sitting at the back of the room not to laugh, as it was distracting and not appropriate. Employment Judge told the Claimant that the Employment Tribunal was not going to address the issue of the bag again, as the Employment Judge had already addressed it. Ms Crews confirmed that the recording in question was not relevant to the proceedings. During the Claimant’s evidence, she was on occasion talking under her breath in her native language. After the mid-morning break at approximately 11:45, the Claimant complained that she did not feel safe with the member of the public who attended and laughed at her. The Employment Judge told the Claimant that the Employment Tribunal was not aware of anything that would require the Employment Tribunal to ask her to leave. During the Claimant’s evidence, after the mid-morning break, the Claimant made reference to her Particulars of Claim/ further and better particulars. The Claimant was asked what document she was referring to by the Employment Tribunal. The Claimant was told by the Employment Tribunal that she could Case No: 3305865/2022 & 3315009/2022 10.7 Judgment with reasons – rule 62 March 2017 look for the document during the break and address any issues in reexamination. However, when the Claimant was given the opportunity to have a re-examination of herself, she said that she had said all that she wanted to say, save anything in her appeal.

[28]On day 5 (Friday 10 October 2025), the Second Respondent said that she wanted the Employment Tribunal to consider a document which she said had character references. The Employment Judge asked her if she had any copies. The Second Respondent stated that she said that she only had the one copy. The Employment Judge asked if she would let me see the document. On consideration, it was a multiple page document, but the Employment Judge did not read the document. The Employment Judge told the Second Respondent that we may need to call the Claimant back to give evidence if there is something in the document that she may want to comment on. The Second Respondent said that if it causes trouble, she is withdrawing the documents. The Second Respondent took the document and sat down.

[29]On day 5 at 11:49, when the First Respondent called Mr Montano, the Claimant said that she objected as she never gave her consent for Mr Montano to give evidence. The Employment Tribunal checked its record, and counsel was also asked to check her record. The Employment Tribunal and counsel’s written record were consistent with the Claimant having given consent. The Claimant said that she now withdraws her consent as she misunderstood the issue of costs. Both parties were invited to make submissions on the issue of whether the Claimant did give express consent, and if so, whether it was reasonable for the Claimant to be permitted to withdraw consent at this stage in the proceedings. I will not repeat those submissions here. The Claimant requested that the Employment Tribunal listen to the recording of the proceedings in order to determine whether the Claimant gave consent. The Claimant stated that she wanted to hear the recording. The Employment Tribunal did not think that it was possible to hear the recording before the end of the proceedings later that day. The Claimant applied for an adjournment. The Employment Tribunal heard the Claimant's application and the First Respondent’s and the Second Respondent’s objections to the Claimant’s application to postpone. The Employment Tribunal refused the application, and oral reasons were given at the time, which will not be repeated here. However, after the lunchtime adjournment, the Employment Tribunal was able to obtain the recording, and the Employment Tribunal told the parties and refused the Claimant’s request to hear the recording. The Employment Tribunal listened to the recording and transcribed the relevant section. The Claimant’s application to withdraw her consent was refused, and Mr Montano’s witness statement was allowed; oral reasons were provided which will not be repeated here. The Employment Tribunal heard the evidence of Mr Montano, and the Claimant crossexamined the witness.

[30]The Employment Tribunal ran out of time and was not able to hear submissions. The Employment Tribunal had to relist the matter for judgment and possible remedies. Written submissions for all parties were agreed to be provided by 14 October 2025, 16:00, which was proposed by the Claimant. Findings of fact Case No: 3305865/2022 & 3315009/2022 10.7 Judgment with reasons – rule 62 March 2017

Findings of fact

[31]We approached witness statements with a degree of caution. Witness statements are, of course, central; they are important to explaining the surrounding context of the contemporaneous documents. However, the witness statements were written many years after the events in question and they were written through the prism of either advancing or defending the claims or allegations. We reminded ourselves that it is often the case that where evidence is contradictory, it does not necessarily mean that one party has lied, as this can arise from an incorrect recollection of events or interpreting events through a particular perception.

[32]We found the Claimant’s evidence to be unhelpful, irrelevant and did not focus on the issues that the Employment Tribunal had to decide. We consider that, on occasion, this was deliberate evasiveness, but for the most part, it was because of the Claimant’s apparent inability to focus on the issues at hand. For example, the Claimant was focused on CCTV footage that we did not have, she didn’t ask for, and in any event didn’t have any audio in order to assist the Employment Tribunal in deciding if anything happened or didn’t happen. Furthermore, during the proceedings, the Claimant told the Employment Tribunal that she had not consented to the late disclosure of Arnolfo Montano’s witness statement some 4 days earlier, at the start of the proceedings. The Claimant denied consent in the face of the Judge, Employment Tribunal member and counsel for the First Respondent having the same note that the Claimant, whilst not using the word consent, had indeed consented to allowing the First Respondent to rely upon the statement. We considered that this very much diminished the Claimant’s credibility by her conduct. The Employment Tribunal was required to listen to the Employment Tribunal recording of the proceedings to verify that the Claimant did indeed consent to the allowance of Arnolfo Montano’s witness statement.

[33]We found the First Respondent’s witnesses to be mostly witnesses of truth, although we did find that some of the witnesses’ recollections varied from documentation written at the time, which we accepted was due to difficulties in remembering things so far in the past and was not due to dishonesty. We found the Second Respondent to be mostly a witness of truth, although we considered that a self-serving statement was made, which undermined the Second Respondent’s evidence to a certain extent.

[34]Only findings of fact relevant to the issues, and those necessary for the Tribunal to determine, have been referred to in this judgment. It has not been necessary, and neither would it be proportionate, to determine each and every fact in dispute. The Tribunal has not referred to every document it read and/or was taken to in the findings below, but that does not mean it was not considered if it was referenced to in the witness statements/evidence and considered relevant.

[35]The Claimant was employed as an agency worker for PE Global. On 29 November 2022, the Claimant was sent by her agency PE Global (‘the Agency’), to work as a Band 2 Health Care Assistant (HCA) at Forest House, an adolescent and child mental health unit run by the First Respondent. The First Respondent is a University NHS Foundation Trust that provides a wide range of mental, physical and learning disabilities Case No: 3305865/2022 & 3315009/2022 10.7 Judgment with reasons – rule 62 March 2017 healthcare services across Hertfordshire, Buckinghamshire, Norfolk and North Essex. The First Respondent has 4,500 staff, and 500 are bank workers. Maria Gregoriou, Associate Director of People for the First Respondent, gave evidence, which we accept that the staff makeup is 60- 70% ethnic minority.

[36]The Claimant did not give any evidence that she told any of the people that she said discriminated against her on the grounds of race, that she is Nigerian. The Claimant gave evidence that she worked with multiple nationalities and that she did not ask about anyone’s race. We find there was no evidence that the Claimant told Mr Thomas, Ms Govin, Ms Yan or Maxime Jones-Ghartouchent that she was Nigerian before or that any of them knew the Claimant was Nigerian at the relevant time. We heard evidence from Garikayi Teera that in the Respondent’s organisation, 99% of staff recruited in the HCA role were Nigerians. Mr Thomas gave evidence that he was not aware of any Nigerians not being asked to return to work at Lambourn Grove because they were Nigerian, and he wasn’t aware of any complaints of racism made by Nigerians working at Lambourn Grove or of them being allocated to work on 2 wards rather than 1 and being asked to clean up faeces and we accept his evidence. Alleged sexual assault by Arnolfo Montano

[37]On 5 December 2021, the Claimant was working at Victoria Court, which is an inpatient mental health unit for older people, particularly with dementia. Arnolfo Montano, an HCA, was doing his round of observations in Tiger wing and asked the Claimant to come and help. It was not the first time the Claimant had worked at Victoria Court, and it was not the first time that the Claimant had worked on a shift with Arnolfo Montano. [212]

[38]Arnolfo Montano then went into the Tiger wing lounge and sat down around a small table, and the Claimant sat down next to Arnolfo Montano. Both were surrounded by service users in the main lounge. Arnolfo Montano was completing a form which recorded the breathing rate of the patient he had been observing. The Claimant had not seen the form before, and she asked Arnolfo Montano how he arrived at the number that he was recording. Arnolfo Montano explained that he was measuring breathing rate. The Claimant’s evidence was that he said that he was measuring heartbeat, but we do not accept the Claimant’s evidence on this point, because Arnolfo Montano’s evidence was that the heartbeat was measured by the heart rate monitor combined with a blood pressure machine and the Claimant’s email statement to Rosalie Guy on 31 January 2022 supports that, as she states in it “He showed me the blood pressure recordings on the machine alongside the stats and pulse” [197]. The Claimant asked Arnolfo Montano how to do vital signs. Arnolfo Montano demonstrated the respiratory rate by standing up with the Claimant in front of him. He put his hands in front of him in the air, moving them up and down in a pushing down motion to replicate the rising and falling of the chest, telling the Claimant at the same time that you have to check the rate for a full minute. Arnolfo Montano’s evidence was that whilst he was close to the Claimant, he wasn’t conscious that he touched the Claimant in doing this motion with his hands, and he didn’t believe that he touched the Claimant. He said that he wasn’t sure whether his motion was for a full Case No: 3305865/2022 & 3315009/2022 10.7 Judgment with reasons – rule 62 March 2017 minute. We accept Arnolfo Montano’s evidence that he did not touch the Claimant’s breast when making this motion. We consider that Arnolfo Montano would not have been able to do this unconsciously when in a room surrounded by patients. We find that Arnolfo Montano did not touch the Claimant in doing his demonstration. There was nothing sexual about his demonstration towards the Claimant. He was in a public place, with other service users around; there was no reason to touch the Claimant. We find Arnolfo Montano’s evidence consistent and credible.

[39]It was later in the day, and the Claimant confronted Arnolfo Montano to accuse him of touching her breasts. Arnolfo Montano was shocked and said that he was sorry if he really touched her and sorry that he didn’t mean it. He told the Claimant that if you have a concern, you speak to the nurse in charge. The Claimant told another member of staff at Victoria Court so that she could obtain his name, but she did not report it to the nurse in charge.

[40]The Claimant reported the incident to her agency on Sunday 5 December [844]; however, the Claimant was offered a shift at Victoria Court, which was scheduled for Sunday 12 December [847 & 250], the same day. The Claimant's response to the offer of a shift was “well noted” [846], and then on 9 December 2021, when she was reminded of the shift, the Claimant responded to her agency by text “yes please” [847]. The Claimant undertook the shift on 12 December 2021 [250].

[41]The Claimant stated in her text message to the agency on 6 December 2021 [845] that she was not mentally stable to do the shift the following day, but we heard no evidence as to why the Claimant felt mentally unstable and we find that she did not make any reference in the text or anywhere else to the agency that her mental stability preventing her attending the shift the following day because of the alleged sexual assault.

[42]On 30 December 2021, the Claimant returned to work at Victoria Court. At some point, the Claimant sought out Arnolfo Montano and stated to him that he had sexually assaulted her. The Claimant was recording the conversation. Arnolfo Montano was present with another staff member, “RM", who then said to the Claimant, “Arnolfo Montano abused her and now she is pregnant”. The Claimant responded by saying, ‘do you think this is a joke?’ RM then states that it was a serious matter and apologised to the Claimant. We heard these comments on a recording as part of the proceedings. The Claimant’s evidence was that it was Arnolfo Montano who apologised on the recording. But the investigation found that it was RM who apologised. We find that it was RM, not Arnolfo Montano, who we hear apologising on the recording. The Claimant did report the incident to the police on or around 9 December 2021.

[43]The Claimant contacted the First Respondent on 30 January 2021 and was asked to provide a statement of the incident. The Claimant provided a statement to the First Respondent on 31 January 2022 [197]. The Claimant’s statement in January 2022 [197] states in reference to Arnolfo Montano that she had to “shrug his hand off” her breast [197]. Yet in the Claimant’s witness statement, she does not mention this or provide any details of what happened and neither did she mention it in her oral Case No: 3305865/2022 & 3315009/2022 10.7 Judgment with reasons – rule 62 March 2017 evidence. The Claimant also kept referring to Arnolfo Montano, saying, “heartbeat”, “heartbeat” when he was doing the motion in her oral evidence and her statement in January 2022. However, we found the Claimant’s evidence on this not credible, although her January 2022 statement, nearer the time, refers to the heartbeat, and repeated this in her oral evidence; there is no mention of this in her witness statement. Furthermore, there would have been no reason for Arnolfo Montano to have used the term heartbeat. He was not measuring a heartbeat; that was measured by the machine.

[44]The First Respondent undertook an investigation by Rosalie Guy, who produced a report dated 8 February 2022 [207-215]. Arnolfo Montano produced a statement of the incident as part of this investigation at around the same time. The report concluded that “There were no direct witnesses to the incident. Therefore, it is the word of one person against the other that is being considered. However due to the nature of the allegation, there is a need for this to be considered by the first decision making panel.” [213]. We accept Rosalie Guy’s evidence that the matter was not taken forward to a disciplinary, and she concluded that there was not sufficient evidence to conclude that Arnolfo Montano sexually assaulted the Claimant.

[45]We did not find the Claimant’s version of events, as given in evidence, credible or consistent. We find that Claimant believed that she had been touched, but she had not, and that is why she behaved the way that she did. Elliette Gobin’s instructions to mop to the Claimant

[46]The Claimant continued to be sent to various units run by the First Respondent by her agency, and on 27 December 2021, the Claimant was working at Lambourne Grove as a band 3 HCA [250]. Band 3 HCA’s do not require any formal qualifications. The Claimant sometimes worked as a Band 3 HCA, and the Band 3 HCA job description [411-419] explains that a Band 3 is the next step up from a Band 2 and is more experienced than a Band 2. The Band 3 HCA job description states under the heading of “health and safety”, “The post holder has a duty of care to themselves and to others with whom they come into contact in the course of their work as laid down in the Health and Safety at Work Act 1974 and any subsequent amendment or legislation.” [418]

[47]We accept Eliete Gobin’s evidence that HCAs are required to undertake a number of cleaning tasks around the wards in which they work, such as cleaning equipment when it has been used (blood pressure monitor, commodes, chairs, tables, door handles and a hoist in the bath). The Claimant accepted in evidence that she did do some cleaning tasks as an HCA, such as washing up dishes when the dishwasher broke down and in the Claimant’s further and better particulars of claim, the Claimant states that such tasks assist the cleaners [61].

[48]Eliette Gobin was the Nurse in Charge on the ward on 27 December 2021. Ms Govin is from Mauritius and is of African descent, and an extremely Case No: 3305865/2022 & 3315009/2022 10.7 Judgment with reasons – rule 62 March 2017 experienced Band 6 nurse. It was an extremely busy period of time due to staff being off because of the festive period and sickness. On the afternoon of 27 December 2021, there was no manager on duty; Ms Govin was responsible for completing the legionella disease checks. She entered a service user's room and noticed that there was a water spillage on the floor. Ms Govin considered it a health and safety issue and wanted to avoid the service user slipping. After discovering the spillage, the first staff member that Ms Gobin saw was the Claimant returning from her break.

[49]Ms Govin asked the Claimant if she could mop the bathroom area where the water spillage was. As the Nurse in charge, Ms Govin was responsible for delegating tasks to HCAs. The Claimant looked surprised by this request, but Ms Govin explained to her that there was a health and safety risk. The Claimant’s evidence was that she disputed that it was her role to mop up. Ms Govin also asked another member of staff, ‘Ayman’ (who was entering the ward at the time of her conversation with the Claimant), to assist the Claimant with this task, as Ayman was a cleaner and would know where the mop and bucket were located. The Claimant’s evidence was that her role did not include mopping up, and that was the role of the cleaner. The Claimant asserted that she should not be assisting the cleaner with their tasks, as they did not assist her with her tasks.

[50]We find that it was a part of an HCA’s role to carry out cleaning tasks such as mopping floors. The HCA job description for Band 3 states under the heading “clinical responsibility”, “To undertake basic housekeeping tasks such as cleaning, tidying to maintain a suitable environment in line with PEAT standards” [416], and that is the reason why Ms Govin asked the Claimant to mop the floor of the service user's room. We find that there was no evidence that Ms Govin reported the Claimant to Mr Thomas and or “Albert”. Mr Thomas did not provide any evidence on this point. The Claimant did not provide any evidence on the point, and there was no evidence of who “Albert” was. Incident on 5 March 2022

[51]On 5 March 2022, the Claimant was working at Lambourne Grove, which is an inpatient unit providing mental health services for older people, especially people with dementia. The Claimant was working as a Band 3 HCA on the Heather ward. Maxime Jones-Ghartouchent was working as a bank nurse at Lambourne Grove. Maxime Jones-Ghartouchent described herself as English born. Maxime Jones-Ghartouchent arrived at the unit during handover and asked the Claimant what time she was leaving, as Maxime Jones-Ghartouchent did not want to go on break and leave the Claimant by herself. It was Maxime Jones-Ghartouchent’s evidence that this was the first time that she had met the Claimant. The Claimant challenged this in cross-examination; however, the Claimant did not give evidence that she had met Maxime Jones-Ghartouchent before. We accept Maxime Jones-Ghartouchent’s evidence that she had not met the Claimant before 5 March 2022.

[52]Maxime Jones-Ghartouchent said in evidence that after asking the Claimant when she was going on a break, the Claimant replied that Maxime Jones-Ghartouchent should not ask her anything and she would Case No: 3305865/2022 & 3315009/2022 10.7 Judgment with reasons – rule 62 March 2017 decide when she told Maxime Jones-Ghartouchent that she was leaving the shift. Maxime Jones-Ghartouchent explained that Abraham Thomas, who was the nurse in Charge had asked her to have a break at a certain time. The Claimant never challenged this in evidence, and we accept Maxime Jones-Ghartouchent’s evidence on this and find that the Claimant did say these words.

[53]Maxime Jones-Ghartouchent’s evidence was that the Claimant’s response was to tell her to shush. Maxime Jones-Ghartouchent interpreted this to mean that the Claimant was telling her to be quiet and shut up. Maxime Jones-Ghartouchent then went to work on another part of the ward and then saw Limmie Yan, who is also a nurse in charge in the lounge and told her that the Claimant had told her to shut up, as Maxime Jones- Ghartouchent’s evidence was that Limmie Yan was not present when the Claimant told her to shut up.

[54]Later that day, Maxime Jones-Ghartouchent was confronted by the Claimant at the entrance to the unit. Maxime Jones-Ghartouchent's evidence was that the Claimant suggested to her that she go outside the unit with the Claimant for a fight. The Claimant accused Maxime Jones- Ghartouchent of lying and stated that she did not tell Maxime Jones- Ghartouchent to “shut up”.

[55]Following this incident, Maxime Jones-Ghartouchent spoke to Abraham Thomas, as he was the Nurse in Charge, and he told her to write a written statement about the incident. Maxime Jones-Ghartouchent wrote her statement the same day [227] and in it describes the earlier incident as “I explained that Abraham asked me to have break at a certain time and she told me I should be quiet (shut up).” [227]. Maxime Jones-Ghartouchent requested in her email to Abraham Thomas dated 6 March 2021 that the issue be dealt with.

[56]The Claimant’s evidence was that she did not tell Maxime Jones- Ghartouchent to shut up or to ‘shhh’ or shush. The Claimant said there is no word for shush in Yoruba and that she was speaking Yoruba to Maxime Jones-Ghartouchent. She said that she was told by Mr Thomas that it was alleged that she said shut up to both Maxime Jones-Ghartouchent and Limmie Yan at the same time, but that was false.

[57]As Maxime Jones-Ghartouchent had requested that Mr Thomas deal with the threat made by the Claimant, on 6 March 2022, Mr Thomas reported the Maxime Jones-Ghartouchent incident to his senior manager in a Datix document [230-244]. In that Datix, he only refers to Maxime Jones- Ghartouchent as the bank nurse making the complaint and states that the matter should be investigated [235]. Mr Thomas’s evidence was that he understood the complaint to be from Maxime Jones-Ghartouchent. He had nothing to do with any conversation that the Claimant had with Limmie Yan. The Datix report went to Mr Thomas’s manager, Gerry Geoghean, who then contacted the Claimant’s agency. The Claimant learnt of the report of the allegations written by Mr Thomas through her agency.

[58]We prefer Maxime Jones-Ghartouchent’s evidence of the incident over the Claimant’s and find that the Claimant did say shush or words/sounds to Case No: 3305865/2022 & 3315009/2022 10.7 Judgment with reasons – rule 62 March 2017 the effect that meant she was telling Maxime Jones-Ghartouchent to shut up. We find that the Claimant was told by Limmie Yan at a later point that Maxime Jones-Ghartouchent was alleging that the Claimant told her to shut up, and that is why the Claimant confronted Maxime Jones- Ghartouchent at a later point. The Claimant claimed that CCTV would prove that she did not say shut up and the First Respondent did not consider the CCTV. We accept the Claimant’s evidence that the wards do not have CCTV but there is CCTV in the lounge. However, Maxime Jones- Ghartouchent gave evidence that she did ask at the time about CCTV and was told that the CCTV did not have audio. We accept Maxime Jones- Ghartouchent’s evidence on this point and find there was no audio of the Claimant saying shut up/ shush to Maxime Jones-Ghartouchent.

[59]The Claimant did not provide any evidence on her version of whether she did tell Maxime Jones-Ghartouchent that she wanted a fight, although she did challenge Maxime Jones-Ghartouchent’s evidence on the point in cross-examination. However, we prefer Maxime Jones-Ghartouchent’s evidence on the issue of whether the Claimant invited Maxime Jones- Ghartouchent to a fight, although Maxime Jones-Ghartouchent’s evidence referred to the Claimant allegedly saying that she was going to stab Maxime Jones-Ghartouchent, which was not mentioned in her statement written on the day. We would have expected Maxime Jones-Ghartouchent to have mentioned something so serious. Her evidence on the Claimant saying that she wanted to fight Maxime Jones-Ghartouchent was consistent, and that is why we accept her evidence on this point. We find it was not a false allegation. We find that the allegation was made in good faith by Maxime Jones-Ghartouchent because it happened. We find that Mr Thomas made the allegation because Maxime Jones-Ghartouchent required the matter to be investigated, and Mr Thomas needed to escalate it in order for that to happen. We had no evidence that Limmie Yan told the Claimant about the allegation made by Maxime Jones-Ghartouchent that she invited Maxime Jones-Ghartouchent to a fight, and we find she did not.

[60]We find that the Datix document submitted on 6 March 2022 clearly indicates Mr Thomas did not report either incident as a complaint from Limmie Yan but only from Maxime Jones-Ghartouchent and only refers to a bank nurse. Limmie Yan was not working as a bank nurse but as a nurse in charge. There was no allegation made that both Maxime Jones- Ghartouchent and Limmie Yan were told to shut up by the Claimant or an allegation made by Mr Thomas that Limmie Yan alleged that the Claimant threatened to fight Maxime Jones-Ghartouchent off Trust premises or made by Limmie Yan herself to the Claimant. The Claimant did not give any evidence nor ask Maxime Jones-Ghartouchent or Mr Thomas any questions about making an allegation about the Claimant not taking care of service users. We find there was no such allegation.

[61]Following the incident with Maxime Jones-Ghartouchent. Mr Thomas’ evidence was that he was informed by a student nurse that the Claimant had an argument with the student nurse because the Claimant had left the ward 45 mins early without informing the student nurse. The student nurse challenged the Claimant, and the Claimant had an argument with her in front of patients. Mr Thomas and his colleague, Sandra, intervened and requested a verbal apology from the Claimant. Mr Thomas’ evidence was Case No: 3305865/2022 & 3315009/2022 10.7 Judgment with reasons – rule 62 March 2017 that there was an attitude issue from the Claimant with the staff. Some of the staff at Lambourn Grove told Mr Thomas they didn’t want to work with the Claimant. So, in light of these things, Mr Thomas informed his manager, Modern Matron Gerry Geoghean, on 6 March 2021, who would be the one to deal with whether the Claimant should come back on shift at Lambourn Grove. Mr Thomas’ evidence was that he did not, on 6 March 2021, utter any inaudible threatening words to the effect that the Claimant would not be coming back to Lambourn Grove. The Claimant’s evidence was that she heard Mr Thomas make the threat. The Claimant was not scheduled to work at Lambourne Grove on 6 March 2022 but worked at Logandene [250]. However, the Claimant gave evidence that she went to Lambourn Grove to have her timesheet approved, and that is when Mr Thomas made the threat that she would not be coming back. We find that the Claimant did attend Lambourn Grove on 6 March even though it was not her work day; Mr Thomas did not suggest otherwise in his evidence. However, we do not accept that Mr Thomas made the threat as alleged by the Claimant; we accept his evidence that he did not. In any event, the Claimant’s evidence was that Mr Thomas made the threat because she didn’t say thank you when Mr Thomas signed off her worksheet. Claimant shifts at Lambourn Grove are stopped

[62]On 6 March 2022, Sandra Devine, who is a charge nurse who is Irish, emailed Katrina Sous and Gerry Geoghean to tell them that the Claimant was having more and more confrontations with staff, had a bad attitude and lost her temper quickly and complained of the Claimant’s behaviour as unprofessional [222].

[63]Following receipt from Maxime Jones-Ghartouchent of her statement of events on 5 March 2022, Gerry Geoghean emailed Maxime Jones- Ghartouchent on 7 March 2022 to confirm that the Claimant would not have any more shifts at Lambourn Grove [226]. Michaela Holliday was the First Respondent’s temporary staffing manager and dealt with the Claimant’s agency. Ms Holliday’s evidence was that she received an email from Gerry Geoghean telling her about an incident where the Claimant refused to carry out a one to one and where she exhibited threatening behaviour [245]. Michaela Holliday was asked to relay the message to the Claimant’s agency that she was stopped from working any more shifts at Lambourn Grove, as the First Respondent could not have people with an attitude and who were being aggressive. Michaela Holliday’s evidence was that the First Respondent have an agreement with the agency whereby if staff are rude or their behaviour is unacceptable, the First Respondent can let the agency know that they would not like that person to return to work for the First Respondent in that area again, and this is what happened in this case. Michaela Holliday was clear in her evidence that the First Respondent would ensure that they treat all agency staff in the same way, i.e. if their behaviour fell short of the required standard, they would be removed and would be prevented from returning to the same area to reduce any further altercations with other staff.

[64]We acknowledge that the allegations set out in the email were not investigated. We find there was no reason we were made aware of for the complainants not to have not made the complaints in good faith. The Case No: 3305865/2022 & 3315009/2022 10.7 Judgment with reasons – rule 62 March 2017 Claimant was stopped from working at Lambourn Grove because there were complaints that the Claimant was confrontational, amongst other behaviours. We find that she did refuse to complete a 1:1, and she did exhibit threatening behaviour (for the avoidance of doubt) in relation to Maxime Jones-Ghartouchent, and the First Respondent exercised their discretion in their arrangement with the Claimant’s agency to stop her shifts at Lambourn Grove due to the complaints of the Claimant’s behaviour.

[65]We note that the Claimant did not address the allegations that she refused to complete a 1 to 1 and threatening behaviour in her witness statement. However, the Claimant, when cross-examined, did say that Sandra Divine lied in her email because she had once said that the Claimant was working well and that she was good and excellent. We considered Ms Devine’s email and noted that it was not about whether the Claimant completed a one 2 one. We find it was not automatically inconsistent for Ms Devine to have told the Claimant at one point she was good/ excellent and to then convey complaints made by others about the Claimant’s conduct to Gerry Geoghegan. During the proceedings, the Claimant was confrontational and did lose her temper quickly. The Claimant also acknowledged that she was not prevented from working at the First Respondent, she said that she declined to work at Lambourn Grove and that after 5 March, she worked at other places, and she mentioned a unit next to Lister Hospital and Kingfisher, which is in the same compound as Forest House. She came back to work in November 2022 and worked at the First Respondent’s premises until January 2023. The Claimant’s evidence was that she was estopped from work because of hostilities that she experienced from various staff members with whom she worked. We find that the Claimant’s access to work was therefore not removed by the First Respondent. The Claimant was not prevented by the First Respondent from working at other Trust premises and in fact she did work at other Trust premises after 5 March 2022 intermittently until January 2023. Marta Hall’s comment that the Claimant’s hair looked like the coronavirus

[66]The Claimant had not attended Forest House before 29 November 2022. On arriving in the morning of 29 November 2022 and entering the building, the Claimant was met by an employee of the First Respondent called Cassie. Cassie took the Claimant to the nursing station room. At that time, the nursing staff came into the ward for an early morning handover. Marta Hall, who was a team leader at that time, was present at the handover when the Claimant was also there, being given instructions by Cassie. Marta Hall is British and of European descent. Marta Hall gave evidence that she had a mixed-race child. There were a number of other people at the nurses' station room, including a black lady who was standing next to the Claimant. The Claimant had her hair in a Bantu knot hairstyle. Marta Hall was behind the Claimant. On seeing the Claimant, Marta Hall said out aloud “her hair resembles the coronavirus”.

[67]Someone to the left of Marta Hall laughed. A black lady next to the Claimant said did you just compare her hair to coronavirus. The Claimant did not initially hear the comment. The Claimant was engrossed in studying the service user's care plan. However, on hearing the black lady’s Case No: 3305865/2022 & 3315009/2022 10.7 Judgment with reasons – rule 62 March 2017 comment, she then turned to Marta Hall behind her and said are you talking about my hair. Then Marta Hall said I was only joking, and then said she was sorry. The Claimant’s evidence is that she did hear the comment by Marta Hall.

[68]After the meeting, the Claimant sought out Marta Hall, and the Claimant met her in the stairwell. There were people in the stairwell, and Marta Hall asked the Claimant if she would follow her to an office to talk in private. Marta Hall said she said to the Claimant at this point that she was glad that the Claimant wanted to talk to her as she wanted to apologise, and we accept Marta Hall’s evidence on this point. The Claimant refused and said that she wanted to speak about it right there. Marta Hall apologised over and over again and said that it was stupid comments and she did not mean offence. Marta Hall expressed deep remorse in her manner and tried to take the Claimant’s hand, which the Claimant initially refused. Whilst the Claimant later did let Marta Hall take her hand, she did not appear to accept Marta Hall’s apology. The Claimant’s agency rang Marta Hall to get details of the incident. Marta Hall apologised to the Claimant’s agency in the call.

[69]The allegation against Marta Hall that Marta Hall made the comment that compared the Claimant’s hair to the coronavirus was investigated and put forward for a disciplinary. During the investigation process, it also emerged that Marta Hall had made another comment at some point in 2022 about a black woman’s Afro hair by saying ‘What is going on here?’ and by letter dated 16 June 2023 [342], this allegation was added to the investigation.

[70]During the disciplinary investigation meeting, when asked why do you feel it could have been an offensive comment, Marta Hall said, “It's how it's received, isn't it? I mean how I intended it was that I liked her hair like it” [334].

[71]Additional witness statements were taken from Wendy Obikwee [2601], Tinecia Ollivierre [262], and Iona Cook [264], who all confirmed the comment was made.

[72]Marta Hall was invited to attend a disciplinary hearing by letter dated 16 June 2023 [342-344]. At the disciplinary hearing, Marta Hall stated, “ It was innocence. I did not want to harm anybody else. I tried to make a joke and it was in bad taste.”[376]. Marta Hall’s response form accepted that she had made the comment.

[73]The outcome of the disciplinary hearing was that the allegation she had made about a black woman’s Afro hair ‘What is going on here?’ was not upheld. The black lady to whom it was said did not report it and said she was not offended. The First Respondent found that it was not bullying, harassment or discrimination. However, the comment that Marta Hall compared the Claimant’s hair to the coronavirus was upheld and found to be gross misconduct. By letter dated 11 August 2023, Marta Hall was demoted 2 grades from Band 7 to Band 5 nurse and given a final written warning [383-385]. Case No: 3305865/2022 & 3315009/2022 10.7 Judgment with reasons – rule 62 March 2017

[74]In her evidence, Marta Hall confirmed that she had received training on race discrimination. Ms Gregoriou’s evidence was that the First Respondent provides annual training online for its staff. The training provided was wholly approved by NHS England. The 2021 training was in person and detailed. Marta Hall had undergone the equality and diversity and human rights training on 9 May 2022. Ms Gregoriou gave evidence that the training Marta Hall received made a distinction between harassment and discrimination and was interactive. In the time that she had been employed by the First Respondent before 2022, she had 3-5 complaints of racial discrimination. We accept her evidence, and it was not challenged by the Claimant.

[75]The First Respondent has an equal opportunities policy that states that discrimination of any kind is not tolerated [640] and that it will take reasonable steps to prevent any discrimination or harassment of any kind [647]. The disciplinary policy in effect during the incident [600] in Appendix 3 of the policy states, “Obscene or indecent Behaviour – includes offensive behaviour, harassment or bullying, and any breach of the Trust’s Harassment & Bullying Policy.” [633] The Harassment & Bullying Policy explains what constitutes harassment as “Insults, name-calling and offensive language and gestures!” “Inappropriate jokes”, “Ridiculing and undermining behaviour” among other things [449].

[76]Marta Hall’s evidence was that she received training but could not remember the specifics. However, she did agree that the training was an hour and covered discrimination and harassment. She agreed that the training dealt with different types of unacceptable behaviour and the protected characteristics. She accepted in cross-examination that, in light of her training, she should not have made the comment, and inappropriate jokes could amount to harassment. She knew that discrimination was a gross misconduct disciplinary offence and was aware of the First Respondent’s Harassment & Bullying Policy. She accepted that the First Respondent took reasonable steps to train her in discrimination and harassment and provide refresher training in the workplace. She told Mr Teera when he was dealing with her disciplinary process that she meant the comment about the Claimant’s hair as a compliment. But when asked how it was a compliment, she said that she could not explain how it was a compliment, but that she was only commenting on the shape of the Claimant’s hair and that she did not give it too much consideration. There was no reason all why she made the comment. She said it was off the cuff, it had nothing to do with the Claimant’s race, it was to do with the shape of her hair. Marta Hall denied in cross-examination that she laughed at the Claimant when she made the comment. She said that she had seen the style before on the popstar Bjork. She said that she didn’t associate the hairstyle with someone of African background at the time she would know and she did not know that the Claimant was Nigerian. She told the Employment Tribunal that she worked with people from all over the world. She said that she did not tell the Claimant’s agency that the issue was resolved, as that would imply that the Claimant accepted her apology when she knew the Claimant had not.

[77]Marta Hall also gave evidence that her son is mixed race and has afro hair. We accept this piece of evidence. Case No: 3305865/2022 & 3315009/2022 10.7 Judgment with reasons – rule 62 March 2017

[78]The Claimant said that Marta Hall’s comment was a derogatory, discriminatory, defamatory, provocative and racist slur on her pedigree. Following the comments, she was weeping continuously for the rest of the shift and could not show up for the next day's shift. The Claimant gave evidence that the fact that Marta Hall requested the Claimant go to her office made her feel debased. She said that Marta Hall had told her agency that the matter was resolved when it wasn’t.

[79]We find that at no point did Marta Hall deny making the comment about the Claimant’s hair. She acknowledged in evidence that the comment was not one made to herself, but she made the comment knowing that the Claimant was in earshot and there were other people in the room. She admitted that the comment was about the Claimant to the Claimant. We do not accept that Marta Hall did not know her comment was offensive. Whilst said that she was commenting on the shape of the Claimant’s hairstyle, we find that Marta Hall’s experience with afro hair through her son meant that she did know that it was a hairstyle associated with women of African descent, although she said that she did not associate the hairstyle with women of African descent herself. Furthermore, contrary to Marta Hall's saying that she meant the comment as a compliment, we do not accept that Marta Hall ever meant it as a compliment, as she couldn’t explain how it could ever be a compliment to compare someone’s hair to the coronavirus, which is clearly a negative thing.

[80]We find that Marta Hall was provided with detailed training and refresher training in respect of equality and diversity issues dealing with protected characteristics by the First Respondent adequately. Marta Hall knew that she should not harass anyone and had access to and was aware of the Harassment & Bullying Policy and that discrimination could amount to gross misconduct. The First Respondent policies were clear and detailed, as was the training to give Marta Hall the tools to know that she should not make inappropriate jokes. The First Respondent also demonstrated that they took the matter seriously by demoting Marta Hall for her comment about the Claimant’s hair. We find that there was nothing more that the First Respondent could have reasonably done to ensure that Marta Hall did not make inappropriate jokes that could amount to harassment.

[81]We find that although the Claimant said that she heard the comment, she didn’t, as she was engrossed in the care plan. The statements taken in the investigation, especially from Wendy Obikwee, which states that the Claimant didn’t hear [260], and the fact that the Claimant admits in her own evidence that she was engrossed in the service user's care plan at the time supports it. We find that the witnesses to the comment said to Marta Hall that the comment was not okay [260], and the room was tense during the exchange [260], and there was clear shock in the room when the comment was made [264]. Marta Hall did not challenge any of the Claimant’s evidence on the comment but did not accept that it was a racial slur, and we accept that Marta Hall did not intend to be offensive to the Claimant. However, we find that the Claimant was offended by the comment and considered it a racist, defamatory slur, and she did not accept Marta Hall’s apology. We do not accept that the Claimant was further debased when Marta Hall asked her to come to her office to speak Case No: 3305865/2022 & 3315009/2022 10.7 Judgment with reasons – rule 62 March 2017 in private. Neither do we accept that Marta Hall told the Claimant’s agency that the matter was resolved. The Claimant continued to work for the Respondent until 2023, and the Claimant did not present any evidence to suggest she needed to take time off work in respect of the comment. We do not accept the Claimant’s evidence, indeed the Claimant continued to finish her shift after the comment took place. The relevant Law Burden of Proof provisions

The relevant Law

[82]Section 136 of the Equality Act 2010 (‘EQA’) states: “(1) This Section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But sub-Section (2) does not apply if (A) shows that (A) did not contravene the provision. (4) The reference to a contravention of this Act includes a reference to a breach of an equality clause or Rule. (5) This Section does not apply to proceedings for an offence under this Act. (6) A reference to the court includes a reference to – (a) An Employment Tribunal.”

[83]Pre- Equality Act 2010 House of Lords decision of Igen v Wong

[2005] IRLR 258

set out a two-stage test that tribunals must apply when deciding discrimination claims. This two-stage approach was discussed in the Court of Appeal decision of Madarassy v Normura International plc

[2007] EWCA 33

, with guidance being provided by Mummery LJ. Since the Equality Act 2010 (although the burden of proof provisions differ in wording from the test set out in Igen), the Appellant Courts and EAT have repeatedly approved the application of the guidance set out by Mummery LJ in Madrassy. In summary, the first stage is where the burden of proof first lies with the Claimant, who must prove on a balance of probabilities facts from which a Tribunal could conclude, in the absence of any other (non-discriminatory) explanation, that the Respondent had discriminated against him. If the Claimant meets the burden and establishes a prima facie case (which will require the Tribunal to hear evidence from the Claimant and the Respondent, to see what proper inferences may be drawn), then the burden shifts and the Respondent must prove that it did not commit the act disproving the allegations. This will require consideration of the subjective reasons that caused the employer to act as he did. The Respondent will have to show a non-discriminatory reason for the difference in treatment.

[84]Tribunals must be careful, and the burden of proof provisions should not be applied in an overly mechanistic manner: see Khan v The Home Office

[2008] EWCA Civ 578

(per Maurice Kay LJ at paragraph 12). Case No: 3305865/2022 & 3315009/2022 10.7 Judgment with reasons – rule 62 March 2017

[85]The approach laid down by section136 EqA requires careful attention where there is room for doubt as to the facts necessary to establish discrimination, but where the Tribunal is able to make positive findings on the evidence one way or another, the provisions of section136 does not come into the equation: see Martin v Devonshires Solicitors

[2011] ICR 352

(per Underhill J at paragraph 39), approved by the Supreme Court in Hewage v Grampian Health Board

[2012] ICR 1054

(per Lord Hope at paragraph 32).

[86]It is, however, not necessary in every case for the Tribunal to specifically identify a two-stage process. There is nothing wrong in principle in the Tribunal focusing on the issue of the reason why. As the Employment Appeal Tribunal (“EAT”) pointed out in Laing v Manchester City Council

[2006] IRLR 748

“If the tribunal acts on the principle that the burden of proof may have shifted and has considered the explanation put forward by the employer, then there is no prejudice to the employee whatsoever”.

[87]If an Employment Tribunal can make clear positive findings as to an employer’s motivation, we need not revert to the burden of proof at all: Martin v Devonshires Solicitors

[2011] ICR 352

, EAT. Direct discrimination

[88]Section 4 EQA classifies sex and race as protected characteristics.

[89]Section 9(1) EQA 2010 refers to the protected characteristic of race as “(1) Race includes—(a) colour;

(b) nationality;

(c) ethnic or national origins. (2) In relation to the protected characteristic of race— (a) a reference to a person who has a particular protected characteristic is a reference to a person of a particular racial group; (b) a reference to persons who share a protected characteristic is a reference to persons of the same racial group. (3) A racial group is a group of persons defined by reference to race; and a reference to a person's racial group is a reference to a racial group into which the person falls.”

[90]Section 13 EQA 2010 sets out the statutory position in respect of claims for direct discrimination because of race and or sex. “(1) 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. Section 39 (2) applies to employers and states: “An employer (A) must not discriminate against and employee of (A)’s (B)… (d) by subjecting B to any other detriment.” Case No: 3305865/2022 & 3315009/2022 10.7 Judgment with reasons – rule 62 March 2017

[91]Section 41(1) (d) EQA 2010 states “(1) A principal must not discriminate against a contract worker by [….] (d) subjecting the worker to any other detriment”

[92]When determining questions of direct discrimination, there are, in essence, three questions that a Tribunal must consider:(a) Was there less favourable treatment?

(b) The comparator question, and

[93]The test for unfavourable treatment was formulated in the case of Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] UKHL 11

in that case the House of Lords as it was then, said that unfavourable treatment arises where a reasonable worker would or might take the view that they had, as a result of the treatment complained of, been disadvantaged in the circumstances in which they had to work. The House of Lords held that the relevant circumstances must not be materially different between the Claimant and the comparators, so the comparator must be in the same position as the Claimant, save in relation to the protected characteristic.

[94]Lord Hope’s judgment in Shamoon clarifies that a sense of grievance which is not justified will not be sufficient to constitute a detriment.

[95]Section 23 EQA deals with comparators and states that: “There must be no material difference between the circumstances relating to each case.”

[96]The comments of the Court of Appeal in Madarassy v Nomura International plc

[2007] EWCA 33

, albeit a sex discrimination case under the pre Equality Act 2010, Sex Discrimination Act 1975, are still very much applicable to direct discrimination claims. Mummery LJ, giving judgment, says at paragraph 56, “The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.”

[97]It can be appropriate for a Tribunal to consider in a direct discrimination case, first, whether the Claimant received less favourable treatment than the appropriate comparator and then, secondly, whether the less favourable treatment was because of race. However, in some cases, for example, where there is only a hypothetical comparator, these questions cannot be answered without first considering the ‘reason why’ the Claimant was treated as he was. Harassment & Sexual Harassment

[98]Section 26 EQA sets out the circumstances where a person is both harassed related to a protected characteristic (sex and race) and sexual harassment were the very nature of the harassment is of sexual conduct. “(1) A person(a) (A) harasses another

(b) (B) if— Case No: 3305865/2022 & 3315009/2022 10.7 Judgment with reasons – rule 62 March 2017 (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. (2) A also harasses B if— (a) A engages in unwanted conduct of a sexual nature, and (b) the conduct has the purpose or effect referred to in subsection (1)(b). … (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case;

[99]In Richmond Pharmacology v Dhaliwal

[2009] ICR 724

the EAT stressed that the Tribunal should identify the three elements that must be satisfied to find an employer liable for harassment:(a) Did the employer engage in unwanted conduct,

(b) Did the conduct in question have the purpose or effect of violating the employee’s dignity or creating an adverse environment for him/her,

[100]In a case of harassment, a decision of fact must be sensitive to all the circumstances. Context is all-important. Richmond Pharmacology v Dhaliwal confirmed that not every comment that is slanted towards a person’s protected characteristic constitutes a violation of a person’s dignity, etc. Tribunals must not encourage a culture of hypersensitivity by imposing liability on every unfortunate phrase.

[101]Mrs Justice Slade’s comments on how a Tribunal should approach the words “related to the protected characteristic” are helpful in the EAT decision of Bakkali v Greater Manchester (South) t/a Stage Coach Manchester

[2018] IRLR 906

[2018] ICR 1481

(EAT). She says, whilst it is difficult to think of circumstances in which unwanted conduct on grounds of or because of a relevant protected characteristic would not be related to that protected characteristic of a Claimant – “related to” such a characteristic includes a wider category of conduct and as such requires a broader enquiry when making a decision. (See paragraph 31 (Slade J presiding)

[102]Tribunals must not devalue the significance of the meaning of the words used in the statute (i.e., intimidating, hostile, degrading, etc.). They are an important control to prevent trivial acts causing minor upset from being caught in the concept of harassment. Being upset is far from attracting the epithets required to constitute harassment. It is not enough for an individual to feel uncomfortable to be said to have had their dignity violated or the necessary environment created. (Grant v Land Registry

[2011] IRLR 748

[103]In considering the word ‘unwanted’, the EAT have said in Reed and anor v Stedman

[1999] IRLR 299

, EAT that it is essentially the same as ‘unwelcome’ or ‘uninvited’ and refers to conduct that is unwanted by the Claimant. The Case No: 3305865/2022 & 3315009/2022 10.7 Judgment with reasons – rule 62 March 2017 question should be on the whole assessed subjectively, i.e., from the employee’s point of view. Conduct that is regarded as offensive or obviously violates a Claimant’s dignity will automatically be regarded as unwanted.

[104]Considering whether there has been harassment includes both a subjective and an objective element. Underhill J in Pemberton v Inwood

[2018] EWCA Civ 564

summarised the position as follows: ''In order to decide whether any conduct falling within sub-paragraph (1)(a) of section 26 EqA has either of the proscribed effects under sub-paragraph (1)(b), a tribunal must consider both (by reason of sub-section 4(a)) whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) and (by reason of sub-section 4(c)) whether it was reasonable for the conduct to be regarded as having that effect (the objective question). It must also take into account all the other circumstances (subsection 4(b))” Submissions

[105]We ran out of time to hear oral submissions and were provided with written submissions from all the parties, which we considered in coming to our

[106]We found that Elliette Gobin did instruct the Claimant to mop a flooded flat. We conclude that this was not less favourable treatment because it was within the Claimant’s job description to carry out such tasks. The Claimant was only being asked to do what was her job. If we are wrong and the instruction does amount to less favourable treatment, we found in any event that the reason why the Claimant was instructed to mop was because it was within her job description and the Claimant was the first person Ms Gobin saw when she discovered the flood. There was no evidence that Ms Govin reported to Mr Thomas and “Albert”. There were no facts from which we could infer that the reason for Ms Govin asking the Claimant to carry out the task was because she was Nigerian. There was no evidence, and neither was Ms Govin asked if she knew the Claimant was Nigerian. She considered that she was of African descent. In those circumstance the Claimant has not shifted the prima facie burden. We conclude that an appropriate comparator HCA who was not Nigerian would have been treated the same way. The Claimant’s complaint is not wellfounded and is dismissed. Issue 1.2.2 On 5 March 2022 did “Limmie” and Maxime Jones both falsely accused the Claimant of saying shut up to them at work whilst feeding a service user.

[107]We found that the Claimant did say shut up or words or sounds to that effect to Maxime Jones-Ghartouchent. We conclude that it was not a false Case No: 3305865/2022 & 3315009/2022 10.7 Judgment with reasons – rule 62 March 2017 accusation. We also found that Limmie Yan never made the allegation to the Claimant that the Claimant told her to shut up, but that she was told by Maxime Jones-Ghartouchent that the Claimant had to tell Maxime Jones- Ghartouchent to shut up. We found that Mr Thomas reported the complaint that Maxime Jones-Ghartouchent alleged that the Claimant had told her to shut up via his Datix to Gerry Geoghean, which was eventually communicated to the Claimant’s agency. He never mentioned Limmie Yan at all. We found that the allegation was not false. We found that the reason Maxime Jones-Ghartouchent made the allegation was because it was true as far as she was concerned. We found that the reason why Mr Thomas made the allegation was because as the nurse in charge, it was reported to him, and Maxime Jones-Ghartouchent requested that it be investigated, so he escalated it so that an investigation could take place. In any event, there was no evidence that Maxime Jones-Ghartouchent, Mr Thomas or Limmie Yan knew that the Claimant was Nigerian. There were no facts from which we could infer that the reason why the allegation was made was because the Claimant was Nigerian. We conclude that the allegation would have made if a hypothetical HCA comparator who was not Nigerian behaved in the same way as the Claimant. We conclude these are the reasons why Maxime Jones-Ghartouchent made the complaint, and Mr Thomas reported it was not because of the Claimant’s race. The Claimant’s complaint is not well-founded and is dismissed. Issue 1.2.3: On 5 March 2022 did “Limmie”, Maxime Jones and Abraham Thomas all accuse the Claimant of not taking care of service users and threatening to fight Maxime Jones off the Trust premises.

[108]We found that Limmie Yan, Maxime Jones-Ghartouchent and Abraham Thomas did not accuse the Claimant of not taking care of service users, as there was no evidence to support this. We found that both Maxime Jones-Ghartouchent and Abraham Thomas did accuse the Claimant of threatening to fight Maxime Jones-Ghartouchent off the Trust premises. However, we also found that Limmie Yan never made the allegation that the Claimant threatened to fight Maxime Jones-Ghartouchent off the Trust premises.

[109]We found that Mr Thomas reported the complaint that Maxime Jones- Ghartouchent alleged that the Claimant threatened to fight Maxime Jones- Ghartouchent off the Trust premises via his Datix to Gerry Geoghean, which was eventually communicated to the Claimant’s agency. We found that the allegation was not false. We conclude that there was no direct race discrimination because the reason the Maxime Jones-Ghartouchent made the allegation was because it was true as far as she was concerned and the reason why Mr Thomas made the allegation is because as the nurse in charge and it was reported to him and Maxime Jones-Ghartouchent requested it be investigated so he escalated it so that an investigation could take place. It was, after all, a serious matter. In any event, there was no evidence that Maxime Jones-Ghartouchent or Mr Thomas knew that the Claimant was Nigerian. There were no facts from which we could infer that the reason why the allegation was made was because the Claimant was Nigerian. We conclude that the allegation would have made if a hypothetical HCA comparator who was not Nigerian behaved the same as the Claimant. The complaint is not well-founded and is dismissed. Case No: 3305865/2022 & 3315009/2022 10.7 Judgment with reasons – rule 62 March 2017 Issue 1.2.4: On 6 March 2022 did Abraham Thomas utter threatening words to the effect that the Claimant would not be coming back to work there.

[110]We found that Abraham Thomas did not utter threatening words to the effect that the Claimant would not be coming back to work at Lambourn Grove. As we found that the alleged threat did not happen, there can be no direct race discrimination. The Claimant’s complaint is not well-founded and is dismissed. Issue 1.2.5: On 6 March 2022 did the First Respondent stop the Claimant’s shifts and remove her access to work.

[111]We found that the First Respondent did stop the Claimant’s shifts at Lambourn Grove, but that the First Respondent did not remove her access to work as the Claimant continued to work at the First Respondent’s premises until January 2023.

[112]We conclude that the removal of the Claimant’s shifts was less favourable treatment; however, the Claimant did not provide any facts from which we could infer that the reason her shifts were stopped was because of her race. We accepted the First Respondent's reasons for stopping her shifts at Lambourn Grove because her behaviour was deemed unacceptable, because of the complaints about her behaviour which were made in good faith, and the First Respondent has an arrangement with the Claimant’s agency that they can stop shifts if an agency worker’s behaviour is unacceptable. A non-Nigerian HCA would have been treated in the same way; we therefore conclude there has been no direct race discrimination, and the complaint is not well-founded and is dismissed. Harassment Related to Sex /Sexual harassment Issue 2.1.1: Did Arnolfo Montano, on 5 December 2021 at Victoria Court, Stevenage, under the pretext of teaching the Claimant how to do vitals, place his right hand on the Claimant's breast at work.

[113]We found that Arnolfo Montano did not place his right hand on the Claimant’s breast at work. As we found that it did not happen, there can be no unwanted conduct and with no unwanted conduct or sexual conduct, there can be no harassment related to the Claimant’s sex or sexual harassment. In those circumstances, the Claimant’s complaint is not wellfounded and is dismissed. Harassment Related to Race Issue: 3.1.1: On 29 November 2022, did Marta Hall (the Second Respondent) compare the Claimant's hair to COVID-19/ coronavirus?

[114]We found that Marta Hall did make the comment that compared the Claimant’s hair to the coronavirus. Marta Hall accepted that the comment was not made to herself and that she made the comment within earshot of the Claimant. We accepted that the Claimant was offended by the Case No: 3305865/2022 & 3315009/2022 10.7 Judgment with reasons – rule 62 March 2017 comment, although we found she did not hear the comment directly but she was told the comment was made and Marta Hall admitted to her that she made the comment. We found that Marta Hall knew that the comment was offensive and not a compliment, as coronavirus is a negative thing. For these reasons, we conclude that this was unwanted conduct.

[115]Although Marta Hall said that she was commenting on the shape of the Claimant’s hair and it had nothing to do with race, we found that the hairstyle was one associated with women of African descent, although not exclusively women and only African descent. Marta Hall admitted that she worked with people from all over the world, she had a son with afro hair, and we consider the fact that she had experience working with people from all over the world and yet had made comments about 2 women of African origin. We conclude that the comment was related to the Claimant’s race.

[116]We found that the Marta Hall did not intend to offend the Claimant, so we conclude that the comment that compared the Claimant’s hair to the coronavirus did not have the purpose of violating the Claimant’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant.

[117]However, we accepted that the Claimant found the comment derogatory, discriminatory, defamatory, provocative and a racist slur on her pedigree and that the witnesses said that the comment was not okay and there was clear shock in the room when the comment was made. We therefore conclude that the conduct had the effect of violating the Claimant’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant and that it was reasonable for that conduct to have that effect.

[118]We therefore conclude that Marta Hall racially harassed the Claimant. The Claimant’s complaint against the Second Respondent is well-founded.

[119]However, we do not conclude that the complaint is well-founded against the First Respondent. We consider that the First Respondent undertook all the necessary reasonable steps by providing training and refresher training for Marta Hall. The training was thorough, appropriate and sufficiently detailed. The First Respondent had policies and procedures that Marta Hall was aware of and had access to. In those circumstances, the First Respondent took all reasonable steps to prevent the Second Respondent from comparing the Claimant’s hair to the coronavirus. The complaint is therefore not well-founded against the First Respondent and is dismissed. Approved by: