Ms G Grubic-Andvari v Refugee Therapy Centre: 3306690/2019

EMPLOYMENT TRIBUNALS

Case No 3306690/2019

Between

Ms G Grubic-AndvariClaimant

Refugee Therapy Centre RECORD OF A PRELIMINARY HEARINGRespondent

Before

Employment Judge Skehan

In person for claimant

Ms Bann (instructed by solicitor) for respondent

Date 17 November 2020

JUDGMENT

[1]The claimant’s claim for discrimination contrary to Section 15 of the Equality Act 2010 relating to discrimination arising from disability is struck out under the provisions of rule 37 of the Employment Tribunal Rules on the basis that the employment tribunal considers it has no reasonable prospect of success

[2]The claimant’s claim for discrimination contrary to sections 20 and 21 of the Equality Act 2010 relating to the duty to make reasonable adjustments is struck out under the provisions of Rule 37 of the Employment Tribunal Rules on the basis that the employment tribunal considers it has no reasonable prospect of success.

[3]The claimant’s claim for harassment on the grounds of disability contrary to section 26 of the Equality Act 2010 is struck out in accordance with provisions of Rule 37 of the Employment Tribunal Rules on the basis that the employment tribunal considers it has no reasonable prospect of success.

[4]The claimant’s claim for direct race discrimination contrary to section 13 of the Equality Act 2010 relating to the process of and decision to promote Ms Davanlou to ‘mentoring coordinator’ or bestow the title of mentoring coordinator upon Ms Davanlou in August 2017 is struck out as the employment tribunal does not have jurisdiction to hear it because it has been brought to the attention of the employment tribunal outside the statutory limitation period contained within section 123(1)(b), Equality Act 2010. The tribunal does not consider it just and equitable to extend the limitation period. 1 of 6

[5]The claimant’s claim for harassment on the grounds of race contrary to section 26 of the Equality Act 2010 is dismissed upon withdrawal by the claimant.

[6]For the avoidance of doubt, the remainder of the claimant’s claims are unaffected by the above orders and proceed.

REASONS

Section 15 of the Equality Act 2010 relating to discrimination arising from disability and sections 20 and 21 of the Equality Act 2010 relating to the duty to make reasonable adjustments

[1]At the outset of the hearing the claimant told me that her claim under section 15 of the Equality Act was as follows:(i) the following things arose in consequence of the claimant’s disability: the claimant suffered from short memory, fatigue, anxiety, nervousness, mental and palpitations. This information had not been provided to the respondent prior to this hearing.

(ii) She was treated unfavourably in that, as set out within the previous list of issues dated 22/11/2019:

a. between September and December 2017 tasks were added to the claimant’s workload, in particular the claimant was asked to manage to email addresses; and

b. the claimant was subject to excessive and public criticism, relating to hoovering duties; and a complaint relating to a client file.

[2]The claimant clarified that her claim for reasonable adjustments was that:(i) the respondent applied a provision criteria or practice (PCP) of:

a. allocating work;

b. requiring employees to cover the workload of ex-employees without additional support, subsequent remuneration time off in lieu.

(ii) The claimant says that she suffered the substantial disadvantage of an excessive workload, increases to her anxiety nervousness mental confusion and potential for error.

[7]The claimant was a disabled person at the relevant time in accordance with the statutory provisions contained at section 6 of the Equality Act 2010. The claimant’s disability is ‘thyroid problems/Graves’ Disease’ that was during the relevant time wholly controlled by medication to the extent that the claimant did not during the relevant period of her employment with the respondent suffer any symptoms connected to her disability. 3. The respondent applied for an order to strike out the claimant’s claims as set out above on the basis that: 2 of 6(i) the claimant’s stated symptoms could not be said to arise in consequence of the claimant’s disability (S15).

(ii) As the claimant suffered no symptoms relating to her disability she could not be said to be placed at a substantial disadvantage to persons who are not disabled (S20/21) by the PCPs. 4. The Employment Tribunal heard submissions from both parties. It is noted that a strikeout of discrimination claims should only be ordered in the clearest case. Where a core issue of fact turns to any extent on oral evidence, it should not be decided without hearing that oral evidence. In this case however the claimant, taking her evidence at its highest, cannot identify that ‘something’ arising from her disability. In determining the issue of disability, I have found that the symptoms complained by the claimant of are not symptoms of the claimant’s disability. It follows that the claimant, taking her evidence at its highest is unable to identify any disadvantage she suffered compared to persons who were not disabled by the application of any provision criteria or practice by the respondent. 5. In the circumstances I consider that the claimant’s claims under section 15 and under section 20/ 21 of the Equality Act 2010 are misconceived with no reasonable prospect of success and for that reason these claims are struck out. Section 26 harassment relating to race. 6. The claimant confirmed that she wished to withdraw her section 26 harassment claim relating to race. Section 26 harassment relating to disability 7. The claimant clarified her claim for harassment relating to disability. The conduct complained of was the emails sent by Ms Davanlou to the claimant on 8 and 09/05/2018.

[8]The claimant explained that Ms Davanlou was asked to help the claimant, with phone answering duties on Wednesdays but Ms Davanlou, when she put the notes together, tried to change things to avoid helping the claimant. In particular Ms Davanlou, wrote in the email of 8th of May 2018 ’Action: [Ms Davanlou] is to answer all telephone calls on Wednesdays (provided she is not busy doing a task equally important) as and when instructed by [the claimant].’ The claimant told me that this was harassment on the grounds of her disability because Ms Davanlou was under a positive obligation to help her.

[9]Within the email of 09/05/2018, the allegation of harassment related only to the comment by Ms Davanlou ‘ I suggest this to be looked at in the next staff meeting. Meanwhile I will answer calls when I can, as before’. The claimant explained that the allegation of harassment related to the lack of real assistance offered by Ms Davanlou. 3 of 6

[10]The respondent submitted that there was no factual link between the above conduct allegations and the claimant’s disability and that the claimant’s claim had no reasonable prospect of success and should be struck out.

[11]I carefully considered the representations made by both parties. Bearing in mind my findings in relation to disability and the fact that the claimant had no symptoms of her disability during the course of her employment, taking the claimant’s claim as at its absolute highest, I am unable to identify any link between the above allegations being an expressed reluctance by Ms Davanlou to assist the claimant with answering phones on a Wednesday and the claimant’s disability. It is noted that a strikeout of discrimination claims should only be ordered in the clearest case. Where a core issue of fact turns to any extent on oral evidence, it should not be decided without hearing that oral evidence. I have taken the claimant’s evidence at its highest and conclude that there is no core issue of fact reliant upon oral evidence. In the circumstances I conclude that the claimant’s claim for harassment arising from these two emails have no reasonable prospect of success and is struck out. Direct discrimination on the grounds of race

[12]That the previous case management meeting the claimant’s claim for less favourable treatment on the grounds of race was stated as:(i) the process of and decision to promote Ms Davanlou to ‘mentoring coordinator’ in August 2017

(ii) the initiation of the investigation into the complaints by the client LS , the investigation process itself and the conclusion of the investigation on 24/10/2018

(iii) the criticism of the claimant of the way the claimant brought her signature in Farsi and/or recording such criticism of LS in the claimant’s record of the investigation

[13]The Employment Tribunal considered only allegation(i) above relating to the promotion of Ms Davanlou. The respondent submitted that: (i) this allegation was a stand-alone allegation and not part of any continuing act or series of events;

(ii) the Employment Tribunal did not have jurisdiction to consider this claim as it was outside the statutory limitation period and it was not just and equitable to extend time in the circumstances. The decision relating to Ms Davanlou was made in August 2017, the claimant commenced ACAS early conciliation on 04/12/2017 and proceedings were issued on 26/02/2019.

[14]The claimant explained that this direct discrimination allegation further. She told me that:(i) there was no application form, but she applied for and was not appointed to the promotion given to Ms Davanlou. The claimant was given no explanation as to why she was not successful

(ii) Ms Davanlou was recommended by a referee due to her Iranian nationality. The claimant says that she was not chosen because she was not Iranian 4 of 6

(iii) The claimant was referred to her covert recording transcripts relating to a conversation with ‘Robin’ which occurred on 30/05/2018 where the claimant says in relation to Ms Davanlou role of mentoring coordinator that: C: ‘…. The first promotion was not, you know… It was not like the job was advertised, or people could apply, or… She was just given this… Was I came back from lunch……… C: It was just decided by Nerma which in itself seems pretty unlawful, but that’s another story… R:… But just to respond to that, [Ms Davanlou] is not being promoted and hasn’t been promoted… C: Well … She is mentoring coordinator…. That is the title which is different to the one that I have, so therefore R: but she looks after the mentoring in the same way that you look after therapy. Aside from the title, the work she does is very similar. C: there is no such thing as ‘aside from the title’ the title is the title. R: But it’s not a new role, she is not moved into a different job….

(iv) The claimant confirmed that her allegation was that Ms Davanlou’s job title had been expanded, whereas hers had not. The claimant accepted that there was no promotion of Ms Davanlou. The fact that there was no benefits attached to the job title was not the point for the claimant. Ms Davanlou was given a job title that referred to a fraction of her actual job on no fair basis.

[15]The claimant told me that she did not bring these allegations to the attention of the Employment Tribunal earlier because it was only after her employment ended when she queried the promotion she wasn’t provided with any information and that was discriminatory.

[16]The tribunal has the discretion to extend the time limit for a discrimination claim to be presented by such further period as it considers just and equitable (section 123(1)(b), Equality Act 2010).

[17]I considered the submissions of both parties carefully. The starting point is that the claimant complains about a decision made in August 2017 that was not brought to the attention of the Employment Tribunal until February 2019 and the claim is considerably outside the initial statutory limitation period:(i) It can be seen from the claimant’s own covert transcripts that the claimant considered the allegation to be ‘unlawful’ in May 2018. The length of the delay in bringing this matter to the tribunal is in excess of one year.

(ii) The claimant was unable to provide any reasonable explanation for the delay to the tribunal.

(iii) I am concerned that the delay in bringing this matter to the attention of the Employment Tribunal will have had a serious detrimental impact on the memories of relevant witnesses and the cogency of the evidence available to the tribunal. The allegation, as is explained by the claimant during the course of the hearing, is different from that set out at the previous preliminary hearing, and according to the 5 of 6 respondent’s representative, is different to the respondent’s understanding of the allegations prior to today. This further adds to the burden upon the respondent of taking further instructions in relation to a matter that arose in 2017 that has not been properly particularised until September 2020.

(iv) The information relating to this allegation was available to the claimant from August 2017 in that she was aware of the change within her colleague’s job title. I am concerned that the claimant did not take any action, even in May 2018, when it was clear that she was aware of ‘unlawfulness’ demonstrated by her covert recordings. The claimant exhibited no promptness of action even at this late stage.

(v) This is clearly a stand-alone allegation not linked to any course of conduct or continuing event.

[18]Taking the entirety of the available evidence into account I conclude that this matter is substantially out of time and it is not just and equitable in accordance with the provisions of section 123(1)(b), of the Equality Act 2010 to extend time in these circumstances.

[19]The remainder of the claimant’s direct discrimination on the grounds of race claim and other claims not mentioned above are unaffected by this order and proceed.

The law

[20]In Igen Ltd v Wong the Court of Appeal approved the guidance given in Barton v Investec Securities Ltd

[2003] IRLR 332

concerning the burden of proof in discrimination cases which is that: ''(1) Pursuant to s 63A of the SDA 1975, it is for the claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Part II or which by virtue of s 41 or s 42 of the SDA 1975 is to be treated as having been committed against the claimant. These are referred to below as “such facts”. (2) If the claimant does not prove such facts he or she will fail…. (9) Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the respondent. (10) It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act. (11) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since “no discrimination whatsoever” is compatible with the Burden of Proof Directive.”

[21]The facts relating to the direct discrimination claim were largely undisputed. The relevant facts are as follows: 21.1. a client of the respondent made a complaint in May 2018. This complaint concerned the claimant informing the client that children could not be self referred to the respondent and instead a referral was needed from social services or a GP. However the client had been informed by Dr Alayarian that this was not the case; 21.2. the original letter of complaint has been lost and has not been located by either party; 21.3. the then CEO of the respondent, Mr Snook, met with the claimant on 30 May 2018 to discuss the complaint with her. This meeting was covertly recorded by the claimant; 21.4. Mr Snook wrote to the client on 5 June 2018 stating that the respondent would “investigate all aspects of our processes, procedures, responsiveness to enquiries in the conduct in this instance...” 21.5. Mr Snook resigned on 1 June 2018 and before he left he did not take any further actions in relation to the complaint; 21.6. Mr Snook did not inform the trustees about the complaint and no further action was taken by the respondent until the client raised the issue with her therapist at the respondent who raised it with the manager who then notified the trustees; 21.7. at a board meeting on 18 October 2018 it was decided that Dr GolbaniNazif would handle the complaint; 21.8. Dr Golbani-Nazif met with the client on 24 October 2018 and a note of the meeting was made by her; 21.9. the note of the meeting was given to the claimant by Dr Golbani-Nazif shortly after it took place; 21.10. The meeting notes made by Dr Golbani-Nazif included, amongst other statements, “[the client ] believes that [the claimant’s ] behaviour has been dismissive, highly disrespectful, undermining. [The claimant’s] signature in Farsi written spaciously is interpreted as undignified and off putting”; 21.11. a written response to the client complaint was sent to the client on or around 25 October 2018. No party could identify an exact date on which the response was sent; 21.12. regrettably the respondent’s response to the client was not provided by either party. By the time of submissions Ms Bann had obtained a copy for herself and she read it out. The claimant did not dispute that any of what was read out was not included in the letter. The relevant part was “Some confusion among newly joined staff at the time”. In the claimant’s witness statement she said that that letter had contained the following phrase “confusion amongst the newly joined administration staff.” The claimant found the phrase as she used it in her witness statement to be deeply offensive as she considered that it indicated that she had done something wrong;

[22]To the extent that any of the following facts are disputed we make the following findings of fact: 22.1. the respondent did not blame the claimant in anyway or at anytime for any of the events or actions identified by the complaining client. To the contrary the respondent identified that there was a failure of communication as to the correct process at levels above the claimant and that the claimant had only said what she had been instructed to do so. This was not disputed by the claimant but even if it had been the claimant did not identify any adverse treatment she had suffered and the tribunal accepted Dr Alayarian’s evidence that this was the case. She identified where the miscommunication within the respondent staff had arisen (which was not at the claimant’s level) and how the respondent had taken steps to ensure that the correct procedure was known by staff; 22.2. the handling of the client complaint was reasonable in all the circumstances. The respondent sent a holding letter to the client and Mr Snook spoke to the claimant about the matter. Unfortunately an investigation was not pursued promptly as a result of the departure of Mr Snook. When the respondent’s attention was drawn to the complaint by the client in October 2018 the respondent appointed an individual (Dr Golbani-Nazif) who had no knowledge of the claimant and therefore could fairly be said to be independent. Dr Golbani-Nazif carried out a reasonable and fair investigation into the complaint by meeting with the client and recording the client’s complaints, a letter of apology was issued to the client which stated that there was “some confusion among newly joined staff at the time.”; 22.3. the claimant found the apology given to the client to be extremely offensive to her. Further, the client complaint itself and the apology seems to have caused her great distress. The tribunal finds that the letter of apology from the respondent was a reasonable response to a complaint: it acknowledged that the respondent and not the claimant had made an error and made an apology. This is a sensible and pragmatic response which almost all organisations would adopt. The claimant took great offence at the apology and instead appears to have desired that the respondent denied any errors and refuted that there were any grounds for any complaint whatsoever. The tribunal finds that this would be an unreasonable way to respond to complaints by an organisation. Complaints by members of the public in all professions and all situations are very common these days and one of the easiest ways of dealing with the complaint is to apologise. The phrase the “customer is always right” is one that many organisations adopt in relation to complaints. Comparators

[23]The tribunal has proceeded on the basis that the comparator is Ms Davenlou and/or a hypothetical comparator who does not share the protected characteristic of not being of Iranian origin. It is noted that Ms Davenlou is of Iranian origin. Less favourable treatment

[24]The tribunal finds that there has not been any less favourable treatment of the claimant in relation to the four points identified in the grounds of claim:

[25]There was no evidence that any complaint had been made against Ms Davnenlou and that she had been treated differently to the claimant.

[26]Using a hypothetical comparator the tribunal does not accept that a hypothetical comparator would have been treated differently in any way to the claimant for the following reasons: 26.1. in relation to the initiation of the investigation into the client’s complaint, the tribunal finds that the respondent initiating an investigation into a client complaint is reasonable, sensible and entirely untainted by race discrimination; 26.2. as above the tribunal finds that the investigation was conducted reasonably and it was fair. The tribunal finds that the conduct of the investigation was entirely untainted by race discrimination. The claimant did not agree with how the investigation was carried out: she wanted to have a meeting as part of the investigation and her side of the story be taken. She considers that this would have been parity of treatment. However it is not disputed that Mr Snook met with the claimant in June 2018 and the tribunal finds that the issues the client complained about could be investigated with little input from the claimant. The claimant seems to consider that she should have been permitted to give her side of the story as if it were a disciplinary investigation or a precursor to that. However this forgets the fact that this was a client complaint about the respondent that resulted in no criticism of the claimant whatsoever, she was not investigated, no conduct issues were raised and no disciplinary was mooted; 26.3. the tribunal recognises that there was a delay in the investigation of a number of months but finds that this arose because of the poor communication from Mr Snook and that there was no connection whatsoever between the claimant’s race and the delay; 26.4. the tribunal finds that the conclusion of the investigation by 24 October 2018 is not tainted by discrimination on the grounds of race in anyway whatsoever. The respondent issued an apology: it did not criticise the claimant and it did not name the claimant. This was a reasonable and sensible way of trying to placate a client and prevent escalation of the complaint. The tribunal recognises that there was some potential dispute about whether the response to the complaint referred to newly appointed or newly appointed administrative staff. The claimant put forward the latter. However the tribunal has decided that it was the former this is because even though we did not have the letter before us Ms Bann read out the letter during the course of submissions. Ms Bann is a solicitor and she owes professional obligations to the tribunal. Therefore given that no party provided us with a copy of the letter we prefer to rely on the words that Ms Bann read out. In any event we consider that little turns on which formulation of the words was used because the claimant was still not identified and neither was she criticised. For completeness we record that we recognise that the legal issue we must consider is not whether the respondent’s actions were reasonable rather it is whether or not they had any connection whatsoever with the claimant’s race. 26.5. We find that the 4th alleged act of direct discrimination, namely the criticisms of the claimant’s signature by the client in the meeting notes of Dr Golbani-Nazif, is misconceived. This is because the tribunal finds that the note taken by Dr Golbani-Nazif records what the client said and the criticism of the claimant’s signature was made by the client and not by the respondent. Judge Bartlett put this point to the claimant during submissions and she accepted it and stated that her issue was that the client’s complaint about her signature had been recorded in the minutes. The tribunal rejects the assertion that this could be an act of discrimination on the grounds of race. The meeting notes were simply to record what the client said they do not represent a criticism by the respondent of the claimant. It is absurd to suggest that the note should have been edited to exclude statements from the client which may have offended the claimant.

[27]For all of these reasons we find that the claims of direct discrimination on the grounds of race must fail. S27 EqA victimisation during employment Protected Acts

[28]The tribunal finds that the claimant’s email of 15 December 2017 was not a protected act. It makes reference to “preferential treatment” but there is no mention of discrimination or race. Therefore it cannot be a protected act.

[29]The tribunal finds that the transcript of the meeting between the claimant and Mr Snook of 25 May 2018 records that the claimant says she has suffered discrimination and therefore this is a protected act.

[30]The tribunal finds that the claimant’s email complaint of 31 October 2018 states that “the centre has shown scant regard for the Equality Act” and this is a protected act.

[31]The tribunal finds that the claimant’s email complaint of 5 November 2018 refers to racial harassment and racial prejudice and is a protected act. Was the claimant subject to a detriment as a result of doing the protected act(s). The alleged detriment is deciding to make the claimant redundant with effect from 14 December 2018 and notifying her of that on 31 October 2018.

[32]The tribunal finds that there is no connection whatsoever between the three protected acts and the decision to make the claimant redundant and notification of that decision.

[33]The tribunal finds that the centre at which the claimant worked was closed in December 2018 and it has remained closed since that date. The claimant refused to accept that the centre was closed for the following reasons: 33.1. therapists due to their professional obligations have to continue sessions with clients and therefore the claimant believed that only she was affected by the redundancy; 33.2. she was copied into an email chain with the therapists and Dr Alayarian who attempted to set up a meeting in January 2019. This meeting did not take place but there were efforts to arrange another meeting. However the claimant did not know if there was another meeting; 33.3. a letter from a former trustee Lennox Thomas set out that previously Dr Alayarian had tried to close the centre to avoid difficulties with the staff.

[34]The minutes of the trustee meeting on 18 October 2018 set out a discussion on the future of the respondent and the ongoing problems. These included but were not limited to difficulty between staff groups, intense and ongoing tension between the staff members and trustees, more staff were needed and those staff such as the CEO found the management of staff impossible, retention of staff and the low number of applicants or no applicants for jobs that are advertised and a shortage of trustee members.

[35]Mr Snook’s letter to the trustees dated June 2018 summarised the main drivers for his resignation including: 35.1. continued infighting and hostility amongst members of staff and aversion to team working; 35.2. the departure of the newly recruited financial controller following his concerns about past financial accounting practices; 35.3. strained relationships amongst the board; 35.4. his perception of a greater need for investment in strengthening clinical management and day-to-day operations.

[36]The claimant accepted in her evidence that other employees were given notice of redundancy and made redundant at the same time as her. She also accepted that some of the therapists were self-employed and we find that some of the therapists were volunteers. The tribunal finds that the fact that some therapists may have continued to see clients due to their professional duties does not prevent there having been a genuine redundancy situation in relation to the centre.

[37]The Tribunal finds that there is considerable overlap between the concerns identified by Mr Snook in June 2018 and the reasons identified for the closure of the centre in October 2018. The tribunal recognises that there is some reference to staff problems however this is an overarching theme at all levels within the organisation and there is no discernible linked to the claimant in particular or the protected acts. This evidence establishes that the reasons for the redundancy were substantial, long term and independent of the claimant.

[38]The tribunal therefore finds that the claimant’s redundancy was made for genuine reasons unrelated to the claimant or the protected acts. Therefore the claimant’s claim to have suffered victimisation during employment must fail. S27 EqA victimisation post employment Protected Acts

[39]The findings set out above in relation to protected acts are repeated here. In addition the claimant relies on the submission of her ET1 as a protected act The tribunal accepts that that is a protected act. Was the claimant subject to a detriment as a result of doing any or all of the protected acts. The detriment relied on is Dr Alayarian approaching the claimant’s partner and three common friends to seek to resolve the proceedings when she had been expressly told not to do so through the respondent solicitor.

[40]The respondent accepted that in an email of 27 August 2019 the claimant wrote to the respondent’s solicitor and asked her to tell her client to refrain from discussing a confidential matter. Therefore it is this date that is taken as the date after which the detriment is alleged to have taken place.

[41]It was not disputed that Dr Alayarian contacted the claimant’s husband several times in 2019 including on 15 June 2019. The tribunal accepts the transcript of the text messages provided by the claimant which sets out that Dr Alayarian texted to the claimant’s husband “at the moment, I am mourning the loss of a close friend, but I have to sort out the centre’s problem and get over it. I just wish we could have a conversation, if you like, to sort out the problems, as much as we can. If you don’t wish, please let me know. I would accept it.”

[42]The Tribunal finds the following: 42.1. the record of the text messages show that the claimant’s husband and Dr Alayarian went on to attempt to meet up on 19 June 2019 but were unable to do so because Dr Alayarian was in hospital. On 15 July 2019 Dr Alayarian asked to meet up with the claimant’s husband and on the 23rd he declined stating that it would be better if the claimant was contacted directly or via ACAS because he did not have a comprehensive knowledge of the ongoing issues. This was accepted by Dr Alayarian on 25 July 2019. 42.2. A review of the timeframe establishes that all of the contact between Dr Alayarian and the claimant’s husband took place prior to 27 August 2019.

[43]Therefore these acts cannot fall within the scope of the claimant’s allegation and this part of the claim must fail. For completeness we record that there was no evidence before us that there had been any communication about the proceedings prior to the submission of the ET1 and therefore only this protected act could possibly have any connection to the detriment alleged by the claimant.

[44]In relation to Dr Alayarian approaching three common friends Mr Rahmani, Mr Jalali and Mr Ariyan, the tribunal makes the following findings: 44.1. it was not disputed that these three individuals did approach the claimant’s husband to try to seek resolution of the dispute between the claimant and the respondent; 44.2. as background we note that these three individuals had been friends with the claimant’s husband for approximately 30 to 25 years. They met up regularly as part of a friendship group which discussed politics and related matters; 44.3. the three individuals spoke frankly and forcefully with the claimant’s husband about their unfavourable opinion about the claimant pursuing employment tribunal proceedings against the centre and their belief that this would reflect unfavourably on the claimant’s husband who like them was, as they stated a well-known, political activist; 44.4. the three individuals’ views were expressed very forcefully and they used emotive language. However the tribunal finds that this type of language and the force of it was the sort used by those individuals, the claimant’s husband and their friendship group in their regular meet ups about political and related issues. The language they used was common to them and in the context of their discussions the impact of it on the claimant’s husband and in turn the claimant would have been limited due to their familiarity with it; 44.5. there are substantial links between the respondent and the part of the Iranian diaspora in which the claimant’s husband and the three friends lived. Mr Rahmani’s wife was a trustee of the centre from April 2019, he stated that he had been asked for a donation to the centre and that he had given donations on several occasions. Dr Alayarian had connections to these individuals through the Iranian community and she herself was of Armenian descent who had been an Iranian national; 44.6. the three individuals felt protective of the respondent and the work that it did; 44.7. all three individuals denied being informed about the Employment Tribunal claim by Dr Alayarian. This was contrary to the evidence of Mr Andvari who stated that they had all told home that Aida had told them about the claim. The tribunal prefers the evidence of the 3 individuals and Dr Alayarian. Having seen Mr Rahmani, Mr Ariyan and Mr Jalali give evidence the tribunal accepted the statement in Dr Alayarian’s statement that these were “intelligent, independent thinking, intellectual Middle Eastern men” over whom she did not have power. The Tribunal fnds that Dr Alayarian did not approach Mr Rahmani, Mr Ariyan and/or Mr Jalali to seek to resolve proceedings at any time.

[45]Taking all of the evidence into account the tribunal finds that the claimant has not established to the standard of proof that the alleged detriment occurred and her claim of post employment victimisation fails. Constructive dismissal

[46]As the tribunal has found that the claimant has not suffered discrimination and has not been victimised the claimant cannot establish that there was a fundamental breach of a term of the contract of employment which entitled her to resign. Therefore the claimant’s claim for constructive unfair dismissal fails.

Background

[1]A substantive hearing took place between 9 and 13 November 2020. In a decision promulgated on 1 December 2021 all the claimant’s claims were dismissed except in relation to unlawful deductions from wages and holiday pay. The claimant had alleged that he she suffered race discrimination and related claims stemming from the respondent’s handling of a client complaint.

[2]Prior to the substantive hearing a number of preliminary hearings took place on 22 November 2019 and 2 September 2020.

[3]On 18 December 2020 the respondent made an application for costs.

[4]On 26 December 2020 the claimant objected to the respondent’s directions.

[5]The costs correspondence was sent to me on 8 January 2021 and I signed directions on 11 January 2021. Unfortunately these directions were not actioned and directions were finally sent to the parties around the end of March/start of April 2021.

[6]The claimant submitted a detailed written response to the costs application dated 9 April 2021 and several brief emails.

[7]Both parties stated that they wished for the application to be decided on the papers.

[8]In the circumstances the tribunal considered that it was in the interests of overriding objective to determine the application on the papers. The Tribunal Rules relating to costs

[9]The Employment Tribunal’s Rules of Procedure 2013 as subsequently amended up to 8 October 2020 at rules 74 to 78 set out the principles and processes that must be applied in relation to costs orders.

[10]Paragraph 77 sets out “A party may apply for a costs order or a preparation time order at any stage up to 28 days after the date on which the judgement finally determine the proceedings in respect of that party were sent to the parties.”

[11]Paragraph 76 sets out: When a costs order or a preparation time order may or shall be made 76.—(1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that— (a)a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or (b)any claim or response had no reasonable prospect of success. (2) A Tribunal may also make such an order where a party has been in breach of any order or practice direction or where a hearing has been postponed or adjourned on the application of a party. Costs awards are exceptional.

[13]The tribunal has a discretion as to whether or not to make a costs award.

[14]The claimant’s responses did not provide any information about her financial situation.

[15]We note that the respondent made an application for strike out which was refused in a preliminary hearing on 4 September 2020 on the basis that taking the claimant’s claim at its highest it could not be said to have no prospects of success. We consider that though this case is marginal it cannot be said that the case had no prospects of success.

[16]We find that the claimant was unreasonable in bringing the proceedings and pursuing the claims to a final hearing:16.1 the claimant’s claims arose from the way a client complaint had been dealt with. The difficulty with the claimant’s claims in this respect was that no detrimental action could reasonably be said to have been taken against the claimant. The claimant was not criticised. The claimant’s conduct was not investigated. The respondent at all times said that the issue lied within a different level in the organisation to the claimant. The claimant’s complaint was focused on what the respondent communicated to the client which itself was a standard apology. The claimant’s claims had no reasonable prospect of success;

16.2 the claimant made a number of other claims including relating to the redundancy. The redundancy arose from the closure of the respondent’s centre and in light of the claimant’s role pursuing a claim that her dismissal was related to other reasons was unreasonable;

16.3 the claimant also claimed unpaid holiday and unlawful deductions from wages. Well in advance of the substantive hearing the respondent twice sent a cheque to the claimant and she sent the cheques back. She has also refused to accept the payment made by the respondent pursuant to the tribunal’s order of these sums. These issues could have been resolved without a hearing and the respondent attempted to do so. Pursuing part of this claim to a hearing was completely unnecessary and unreasonable. The other claims related to comments by other individuals which were connected to the dispute;

16.4 the respondent repeatedly stated the claims had no merit. An objective assessment of the claim would have shown the claimant that it had very limited prospects of success. The claimant’s singlemindedness in pursuing the claim to the final hearing was unreasonable conduct.

[17]The award may have been higher if there had been a costs warning however one was not given. We recognise the respondent’s reasons for not giving a costs warning were said to be associated with the claimant’s anxiety and allegations of bullying. However, it was open to the respondent to give a cost’s warning. Their reasons for not doing are not particularly strong.

[18]In conclusion we have decided to make a costs award in the amount of, £1,000.

[1]The Claimant’s application dated 28 October 2021 for reconsideration of the Employment Tribunal’s judgement making a costs award in the respondent’s favour is refused.

[2]In a sequence of emails on 28 October 2021 the claimant made an application for reconsideration of the Employment Tribunal’s judgement awarding costs in the respondent’s favour which was sent to the claimant on 15 October 2021.

[3]These emails contained a substantial number of documents.

[4]The Tribunal has given due consideration to rule 72 of the Employment Tribunal Rules of Procedure. The Tribunal has reviewed the application and considers that this is an attempt to re-argue the case which was heard between 9 and 13 November 2020. No issues were raised in the application Case No: 3306690/2019 that could give rise to a reasonable prospect of the original decision being varied or revoked. I have therefore decided that there is no reasonable prospect of the original decision being varied or revoked. For these reasons the application is refused.