Miss E James v West London Mental Health NHS Trust: 3306791/2018

EMPLOYMENT TRIBUNALS

Case No 3306791/2018

Between

Miss E JamesClaimant

West London Mental Health NHS TrustRespondent

Before

Employment Judge Manley

In person for claimant

Mr S Sudra (instructed by counsel) for respondent

Date 30 November 2021

JUDGMENT

The claimant’s application made on 8 and 14 March to amend the claim is refused. Upon reconsideration, that refusal is confirmed. JUDGMENT having been sent to the parties on 5 November 2019 and reasons having been requested in accordance with Rule 62(3) of the Rules of Procedure 2013, the following reasons are provided:

REASONS

[1]The request to amend the claim to include a claim of disability discrimination is rejected. It is not just and equitable to allow this amendment.

Introduction

[2]The claimant presented a claim form on 26 April 2018. This was a relatively detailed and sophisticated claim form which brought claims of constructive unfair dismissal and sex discrimination. The claimant also put in a supporting statement with a timeline. Although the claimant referred to mental health and psychological issues, these were in the context of what had occurred since she had left the respondent. The matter came before me at a preliminary hearing on 26 June and 9 August 2018. There were two hearings because it was slightly complex to agree the list of issues. At no point during those hearings did the claimant mention a claim for disability discrimination. The issues were finally agreed on 22 August 2018 and a hearing agreed for March 2019. As we got close to the hearing there was a request to postpone that hearing for several reasons and it was postponed by consent.

[3]The tribunal file contains an email dated 14 March 2019 which made an application to amend to include a claim of disability discrimination. It appears that there was also a document dated 8 March 2019, but I am not clear whether that was sent to the tribunal. I have now read that document which is more detailed. In essence, the claimant claims that there was a failure to make reasonable adjustments at a meeting concerning a grievance that she raised with the respondent on 11 August 2017. What she raises is its refusal to allow the grievance to be dealt with by correspondence or with her cousin attending the meeting. The alleged disability is anxiety and depression.

[4]I heard from the claimant and asked her a few relevant questions and Mr Sudra then made his submissions. The respondent objects to the amendments and reminded me that it was only in exceptional circumstances that a just and equitable extension would be agreed to. This is a completely new claim raising new facts not included in the claim form.

[5]The claimant also made submissions. In summary, she said that she had been concentrating on other aspects of her claim; the sex discrimination and then the constructive dismissal. She was prioritising those matters and did not get legal advice until February 2019. She submitted that it was in the interests of justice to extend time to allow this matter to proceed bearing in mind that the respondent deal with people with mental health issues.

The law

[6]An application to amend a claim can be made at any time but consideration must then be given to whether it is an application to add a new cause of action or whether it is a re-labelling for facts already raised. The case of Selkent Bus Co Ltd v Moore

[1996] ICR 836

provides guidance on the approach to be taken when considering applications to amend. In summary, the judge should consider the nature of the amendment; the applicability of any relevant time limits and the timing and manner of the application. Section 123 Equality Act 2010 provides that discrimination claims should be brought within three months unless it is just and equitable to extend time.

[7]An application for reconsideration can be made at the hearing under rule 71 Employment Tribunal Rules of Procedure 2013. Rule 72 provides for the judge to consider the application but may reject it if it has no reasonable prospect of success. Upon reconsideration a decision may be confirmed, varied or revoked.

Conclusions

[8]I gave my conclusions orally to the parties. I went through the timeline as set out above and then gave judgment. I considered the length of the delay which is now very long. The date of the alleged incident of disability discrimination was 11 August 2017 and the application to amend was not made until 14 March 2019. It is now October 2019 and the hearing date is not until May 2020. This is a completely new claim, relying on newly pleaded facts and is, of course, mentioned many months after the threemonth time limit contained in Equality Act 2010. I considered the reasons for the delay and accept that the claimant is a litigant in person and may not have all legal knowledge available to her. However, I balance that with the fact that she provided a detailed and relatively sophisticated claim form and she has had two previous preliminary hearings where this matter was not mentioned at all.

[9]Importantly I considered the question of prejudice to the parties. I accept that allowing the amendment would cause substantial prejudice to the respondent and, although the claimant may not see it in this light, it might also cause some prejudice to her. This is because it may well lead to a delay in the matter being heard. It is not conceded that the claimant was disabled at the material time, and these kinds health conditions frequently lead to the tribunal needing detailed medical evidence. There is a strong likelihood that the matter would be further delayed. The fact that this is a relatively complex area of law that relates solely to the claimant’s concerns about a meeting which was held well over two years ago, means that, balancing the prejudice to both parties, it is not just and equitable to extend time. This is not an exceptional case.

[10]Having given that judgment to the parties I then went on to seek to agree some case management directions for the hearing in May. I then asked the claimant whether she had anything else to raise and she indicated that she was not sure that I had looked at other documents which she had sent to the tribunal. This caused me to look at the file as I was not clear what the claimant was referring to. I asked the claimant whether she wanted me to reconsider the oral judgment I had given earlier, and she said she did. I then asked which documents she was referring to and I did find another letter from the claimant on the file. I was not aware that these were documents which she believed were relevant to this amendment application.

[11]In any event, these were a copy of the claimant’s grievance to the respondent of 5 August 2017 which makes reference to an alleged failure to make reasonable adjustments and a number of medical documents which refer to stress at work and anxiety. I asked the claimant how she believed these documents would influence my decision on the amendment and she accepted that what she was arguing was that this would mean that there was less prejudice to the respondent as it showed that she had raised the questions while she was employed in August 2017. She still argues that she was at a disadvantage because of her impairment and not being able to have the meeting by correspondence or with the assistance of her cousin.

[12]The respondent responded that these documents take us no further except to indicate that there was stress at work which is not sufficient to amount to a disability. It was submitted by the respondent that the document which she presented on 5 August 2017 clearly showed that she should have brought this matter to the tribunal earlier as it makes clear references to the Equality Act and to the alleged disability. Indeed, that document refers to a “proportionate means of achieving a legitimate aim”; to a number of leading cases on disability and so on.

[13]I then returned to the claimant for any final comments. She then referred to yet another document which was not on the tribunal file. I looked at this document and Mr Sudra was shown it. This was a letter from the respondent’s service director dated 9 August 2017 which was a response to the claimant’s email about the meeting on 11 August 2017 and the right to accompaniment to that meeting. I decided to read that document to see if it assisted. Reconsideration

[14]I decided that it was in the interests of justice for me to reconsider the judgment that I had made a little earlier in the hearing in the light of the claimant taking me to these documents which she wished to rely upon. I appreciate that what the claimant was demonstrating was that the respondent had some knowledge about this matter in April 2017, but that is not the same as bringing a claim to this tribunal. Although I have reconsidered the judgment, I confirm the earlier judgment that it is still not just and equitable to extend time. This is for the same reasons as given above, but also because showing that you raised something in 2017 but did not put it on a detailed claim form or raise in a year of litigation does not alter my judgment. It is simply not just and equitable to extend time in these circumstances to allow the claim to proceed. It is not an exceptional case.

The facts

[15]In November 2016 the claimant began a 12 month secondment within the Sports and Leisure Services as a Technical Instructor at Broadmoor. She then attended various training induction sessions between November 2016 and February 2017 as follows:14.1 Teamwork Course, which was a five day course,

14.2 A Security Update Course.

14.3 Clinical Risk Training,

14.4 PSTS Theory Induction Group

14.5 Equality and Diversity

14.6 An Introduction to boundaries

14.7 Recovering Patient Involvement training

14.8 Safeguarding Adults and WRAP training and that was repeated in February.

[16]The respondent has a policy with respect to uniform particularly in relation to the claimant’s post in Sports and Leisure. Part of the Dress Code which we have seen appears at page 279. A short extract from section 9.1 - clothing and it reads: “Clothing must be safe having regard to the activities being carried out at the time and comply with the Health & Safety Regulations to ensure personal safety and that of service users and carers. Clothing that is too tight, too revealing or see through is unacceptable. All clothing must be of a type that promotes dignity and professionalism and is not provocative or could be construed as such.”

[17]The claimant had a number of one-to-one supervision sessions with Ms Isted, who was her direct line manager, with Ms London being Ms Isted’s line manager.

[18]There were supervision sessions in December 2016 and we have seen a note from that at page 399 of the bundle. That makes specific reference to question of the claimant maintaining patient boundaries.

[19]There was a further supervision session in January 2017.

[20]In February 2017 there was an incident on the Woburn Ward involving the claimant. This concerned a patient who was following the claimant around and matters were discussed with the claimant. A note appears about that at page 403.

[21]In March 2017 Ms Isted spoke to the claimant about work concerns involving her. In particular, she was concerned that the claimant was putting herself in a vulnerable position.

[22]At paragraph 27 of Ms Isted’s statement, she talks about a particular incident where the claimant was asked to sit near the alarm bell but did not stay there and mingled with patients instead. These matters were discussed with the claimant.

[23]On 20 March 2017 the claimant says that she met with Mr Vandi, who was responsible, at that point, for the Dover Ward. There are at least two versions of this meeting but no direct contemporaneous note about it. The claimant’s version in that she met with Mr Vandi and that he ogled her, licked his lips and looked at her crotch area. Mr Vandi denies that absolutely. He says there was a very brief meeting on that day which was just to organise a time for them to discuss an incident which had occurred on the Dover Wad. He said the meeting was only a very few seconds, other people were in the room and he did not look at the claimant in any inappropriate way.

[24]The claimant did not mention this at the time. Her version is that she did speak to Ms Isted at some point but that is denied by Ms Isted. The first time there is anything in writing about this alleged incident at all is when the claimant raised it later on 25 August 2017.

[25]The tribunal is not satisfied that such behaviour occurred, particularly because the claimant did not raise it until so much later even though, as we will come to, she raised a considerable number of other concerns. The tribunal accepts Mr Vandi’s evidence and finds there was no inappropriate behaviour by him on that day.

[26]As it happens, the Dover Ward Manager, Mr Robinson, was raising concerns with Ms Isted about the claimant on 25 March. He was particularly concerned about her interaction with a particular patient and said that she had stayed behind speaking to that patient after her shift. Ms Isted asked the claimant not to work on Dover Ward until matters were resolved. At this point, the claimant did allege that she was being bullied but, as stated, she did not mention any alleged inappropriate behaviour by Mr Vandi.

[27]There was then a meeting between Mr Vandi and the claimant on 23 March. This was to discuss a dispute between a couple of patients. Again, the claimant repeats the allegation of inappropriate looking by Mr Vandi. Mr Vandi again disputes any such behaviour. Both of them wrote, when the matter was investigated, to give their versions. The tribunal finds that Mr Vandi did not and would not have behaved in such a way. In particular, the claimant wrote a detailed grievance, which we will come to, in June 2017 which goes through a number of concerns she had and did not mention either of these alleged incidents. There was no such inappropriate behaviour by Mr Vandi.

[28]A bit later in March, around 27th, Ms Isted raised concerns she had about the claimant with her line manager, Ms London. At page 413 Ms London records her as saying this: “Cautiously managing of Elaine James regarding a possible boundary issue with patient CD on Dover Ward. Mandy has had to be very clear with EJ regarding her alleged behaviour when entering Dover Ward after her shift was finished. EJ appears to find it hard to receive feedback from staff. However Mandy is supervising EJ and giving her very clear feedback at this time. This situation is being monitored very clearly.”

[29]There was then a further supervision meeting with the claimant and Ms Isted on 30 March. In that meeting the claimant appears to have mentioned bullying and harassment. Page 414 reads: “Elaine feels that Vandi (Dover) is bullying her as he has stopped her from going to the ward. Elaine feels that he had not really given her a good reason for this.”

[30]In any event, the claimant then did stop going to Dover Ward.

[31]There was then a further incident about which the claimant complains when Ms London had cause to speak to her about inappropriate clothing: this was on 13 April. The claimant was wearing leggings and was with two other colleagues from Sports and Leisure. The claimant’s version is that Ms London was aggressive, that she was verbally abusive and she got her name wrong. Ms London accepts that she called the claimant Emily rather than Elaine in error, but she did decide to speak to her immediately because she was concerned that she was not wearing the uniform, which was tracksuit bottoms. The claimant said that she had none and she was allowed to carry on. The claimant was concerned about the way in which she was spoken to and complained about it later. The tribunal finds that there is nothing untoward about this discussion. Ms London was entitled to speak to the claimant about the clothing she was wearing given the respondent’s firm rules on dress code. We do not find that she was at all aggressive or raised any inappropriate matters with the claimant

[32]Later that same day Ms Isted also discussed inappropriate clothing with the claimant. That is recorded at page 431, an extract reading: “I explained to Elaine that she had been provided with a uniform and should therefore wear it. I also pointed out to Elaine that she had read the Dress Code to which she agreed. Elaine admitted that the leggings were inappropriate but felt I was unfair about her top which was also very tight. Once again, I reinforced that this was not uniform issue and she should only wear what is appropriate.”

[33]Ms Isted instructed the claimant not to attend any wards until she had spoken to Ms London. This was partly because she had received an email from Mr Vandi about difficulties with the claimant attending the Dover Ward on 20 April.

[34]Managers at the respondent were getting concerned about how they could utilise the claimant and there was a meeting between the claimant and Ms London on 21 April when the claimant was put on paid leave. This was partly because they were finding the claimant a little difficult to manage.

[35]The meeting was recorded by Ms London; part of the note reads: “During the meeting Ms London did not feel confident that Ms James understood the serious nature of the concerns raised by her supervisor, nursing staff and colleagues. She demonstrated fixed views and an inability to reflect or consider the concerns of her managers and colleagues. Ms London considers this is a risk in a high security setting. In the meeting Ms London decided it would be safer to stop Ms James secondment in the Sport and Leisure Department due to her inability to value and respond to the views of the staff with whom she worked. Ms James was informed of this decision in the meeting.

[36]Ms London checked with the claimant’s line manager at CAMHS Unit, Ms Dosanjh, whether she would be able to return there if the secondment was brought to an end.

[37]Other matters which occurred in April related to the claimant having a deduction from her pay. This was a little over £200 and was a result of an attachment order sent to the respondent by a court. There was a deduction but then there was also an instruction to cancel that deduction. In May and June the claimant was repaid on two occasions so that she was overpaid a little over £400. It was agreed that £50 per month would be deducted but the claimant was unhappy with this. This was much less than was usually agreed when there had been an overpayment. The claimant was absolutely clear that she was aware that she had been overpaid. Most of this is dealt with in Mr Jones’ witness statement.

[38]At some point, although the tribunal is not sure when this is alleged to have occurred, the claimant met with Mr Jones. The claimant says that he was dismissive; Mr Jones says he was not. The claimant was not satisfied with the explanation about the deduction but it was made. The tribunal can find nothing untoward about anything that happened about this overpayment. It was clear the respondent was entitled to recover money incorrectly sent to the claimant by mistake.

[39]At some point in April or May, Ms Isted copied an email she was sending to the claimant to Ms London which meant Ms London was able to see the claimant’s email address. The claimant says this is a breach of data protection but it seems to the tribunal that it would be no such breach; this is information which the respondent quite properly had and had been provided to it by the claimant.

[40]On 4 May the claimant met with Ms Isted and she was informed that her secondment was to be terminated. A very detailed letter was sent to her which went through all the incidents of concern, some of which are referred to above, and the claimant returned to her CAMHS Medical Secretary post.

[41]The claimant was then on sick leave between 16 June and 1 September and she then had some more leave until she went into CAMHS on 12 September.

[42]In the meantime, she had raised a fairly detailed grievance. This is a sevenpage document and appears at pages 502 to 509 of the bundle. In essence, the claimant complains at length about Ms London and about the termination of her secondment, giving her explanation for some of the matters which had occurred. Nowhere in there does the claimant say anything about any inappropriate behaviour by Mr Vandi with respect to looking at her inappropriately.

[43]The respondent set up a grievance hearing with a panel and the claimant was accompanied by a union representative. A grievance outcome was sent to her which appears at 588 of the bundle. Again, this is a very detailed outcome of her grievance. Part of the conclusion reads as follows: “The panel considered all aspects of your grievance and concluded that whilst there may have been some flaws in the process, the decision to terminate your secondment was based on serious safeguarding concerns. The panel accepted the rationale given by Ms London for the decision to terminate your secondment which was that there was a catalogue of concerns about you that were being raised from both inside and outside the department including very experienced staff and managers in the hospital. These concerns have been brought to your attention. You were given clear guidance and at times even instructions which you failed to take on board or chose to ignore. This showed a lack of awareness of understanding on your part of the importance of relational security and maintaining firm professional boundaries when working in a high secure environment. As a result of this it is the finding of this panel that your grievance is not upheld.”

[44]That was received by the claimant on 14 August and on 25 August, the claimant raised written complaints about Mr Vandi. She said in that document, (page 610), that she wanted it to be dealt with informally. But, in essence, she raised the concerns we referred to earlier about how Mr Vandi had allegedly looked at her.

[45]Towards the end of August there was a sickness absence management meeting with the claimant and Ms Dosanjh, who was by then her line manager, and the claimant expressed that she was unhappy with her role at CAMHS.

[46]In relation to the complaints about Mr Vandi, the respondent initially asked the claimant’s line manager, Ms Dosanjh, to do the investigation but Ms Dosanjh said she was not suitable and then Mr Caider was appointed in October 2017. This led to a delay in the grievance being considered.

[47]In the meantime, the claimant had made a Subject Access Request in early September with replies to that request in November and December 2017. The claimant suggests that she has not received all documents that she should have but the tribunal has no knowledge as to what those documents might be.

[48]We read the witness statement from Mr Miah which provides an explanation for the delay in dealing with the claimant’s Subject Access Request. In summary, it was a very busy time for the respondent and the tribunal is aware these can be very time-consuming requests and there was a severe backlog. So, there was a delay before she received documents under that process.

[49]At a supervision in late 2017 the claimant said that she needed a reference because she had another job. Then there was some discussion about who would be the appropriate person to give such a reference.

[50]The claimant then had further sick leave during January.

[51]On 20 December the claimant sent an email to Ms Young who was in the HR Department. Amongst other things she said, this is at page 738, “As you are aware I wish to leave the Trust and have initiated seeking employment elsewhere.”

[52]It was some time before the grievance outcome was sent to the claimant. There is a detailed document which appears at 733 of the bundle; it is undated but the tribunal understands that it was prepared in December 2017, because we can see emails around it. For reasons the tribunal have not entirely understood, the claimant says that she did not read it until 18 January when she collected it from a post box. She did ask for a meeting with Mr Kamera who had written the document following Mr Caiden’s investigations and he suggested that it would be wise to meet after she had read the letter, which it appears at that point she had not done. We have no evidence whether a meeting occurred or not.

[53]On 1 February the claimant resigned from employment. This was in a short email again to Ms Young. It reads: “Please accept this email as confirmation of my resignation in line with my contract and I have provided notice on 15th January. My last working day will be Friday 9th February 2018 with 13.5 hours of leave remaining. My last physical day in the office will be Tuesday 6th February 2018.”

[54]The tribunal does not know and the respondent is unaware to what the claimant is referring when she mentions having given notice on 15 January. Notice was formally given as indicated on 1 February.

[55]The claimant did follow up that letter with a more detailed letter which appears at 778 and 779 of the bundle, where she complains about some of the matters that appear in this list of issues for the tribunal. She also says, this is at page 779, that the last straw was “The circumvention of Mr Kamera to meet with me to discuss pursuing the matter of my allegation further”.

[56]The claimant’s effective date of termination was 9 February 2018. She approached ACAS on 28 February with the certificate being dated 27 March, and the ET1 was presented on 26 April 2018.

The law

[57]The Equality Act (EQA) claims are brought under section 26 and 27 EQA. The relevant parts of those sections read:- “26 Harassment(1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

(2) A also harasses B if— (a) A engages in unwanted conduct of a sexual nature, and (b) the conduct has the purpose or effect referred to in subsection (1)(b). (3)A also harasses B if— (a) A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex, (b) the conduct has the purpose or effect referred to in subsection (1)(b), and (c) because of B's rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct. (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect. (5) The relevant protected characteristics are—  sex; 27 Victimisation (1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act. (2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.

(3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.

(4) This section applies only where the person subjected to a detriment is an individual.

(5) The reference to contravening this Act includes a reference to committing a breach of an equality clause or rule.

[58]The burden of proof provisions are at s.136 and apply to both those claims as does the time point which is s.123. 123 Time limits(1) Proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable.

(2) Proceedings may not be brought in reliance on section 121(1) after the end of— (a) the period of 6 months starting with the date of the act to which the proceedings relate, or (b) such other period as the employment tribunal thinks just and equitable.

(3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it.

(4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it. 136 Burden of proof (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 subsection (2) does not apply if A shows that A did not contravene the provision. (4) -

(5) -

(6) A reference to the court includes a reference to—

(7) (a)an employment tribunal;

[61]The claimant’s claims for harassment do not require her to identify a comparator. The steps that are required by section 26 EQA are first, for her to show unwanted conduct that is related to sex and that it had the purpose or effect of violating her dignity or creating the environment as described. In assessing this, the tribunal must apply the test as in section 26 (4) which amounts to a subjective and objective test. The ultimate judgment as to whether conduct amounts to unlawful harassment involves an objective assessment by the tribunal of all the facts. The claimant's subjective perception of the conduct in question must also be considered. Having taken account of whether the claimant perceived her dignity to have been violated the objective question is a question of whether it is reasonable for the conduct to be regarded as violating the claimant's dignity or creating an adverse environment for her.

[62]The claimant also brings a claim for victimisation under section 27 EQA. The burden of proof provisions apply here too. The issue for the tribunal is to consider whether there was a protected act as described. Then, we must decide whether the claimant was subjected to the detriment she relies upon and, if she was, whether it was because she had made that protected act.

[63]Section 123 EQA (quoted above) provides that a discrimination claim may not be brought after the end of three months starting with the date of the act to which the complaint relates or such other period as the employment tribunal thinks just and equitable. This provision is very similar to that provided by the previous anti-discrimination legislation. In British Coal Corporation v Keeble

1997 IRLR 336

it was said that the discretion is as wide as that given to the civil courts by section 33 of the Limitation Act 1980. When considering whether it is just and equitable, the tribunal is required to consider the prejudice which each party would suffer as a result of granting or refusing an extension and to have regard to all the other circumstances, in particular the length of and reasons for the delay, the extent to which the cogency of evidence is likely to be affected by delay, the extent to which the party sued has cooperated with any requests for information, the promptness with which the claimant acted once they knew of the facts giving rise to the cause of action and the steps taken by the claimant to obtain appropriate advice once they knew of the possibility of taking action. However, it is said that there is no legal requirement on a tribunal to go through such a list in every case provided of course that no significant factor has been left out of account by the tribunal or judge in exercising its discretion. Robertson v Bexley Community Centre

2003 IRLR 434

reminds tribunals that the discretion to extend time should be exercised as an exception rather than the rule.

[64]The constructive unfair dismissal is covered by section 95 (1) c) Employment Rights Act 1996 (ERA). This provides for these circumstances to amount to a dismissal:- (c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct.

[65]It requires the claimant to show a fundamental breach of their employment contract and an intention by the respondent to be no longer bound by the contract. As in this case, the most common breach relied upon is the implied term of mutual trust and confidence.

[66]In essence, the tribunal’s task is to find any relevant facts and then apply legal tests to them, coming to conclusions on the facts as found. There is no real dispute about the legal principles and they are also summarised in the list of issues.

[67]We had short oral submissions from Mr Sudhra for the respondent; deliberated by considering all the evidence, including the statements of the claimant. We then reached the conclusions and gave oral judgment as follows.

Conclusions

[68]We considered the first issue - the sexual harassment allegation. This reads “Can the claimant show that Mr Vandi engaged in unwanted conduct related to her sex that had the purpose or effect of violating her dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her in that it is alleged he ogled at her, licked his lips and looked at her crotch area in meeting on 20 and 23 March 2017”. It is clear from our findings of fact that the claimant has not shown that that occurred.

[69]The second question is to decide whether the conduct had that effect, was it reasonable taking into account the claimant’s perception and other circumstances for it to have that effect. We do not need to answer that question because the claimant has not shown that the conduct occurred at all.

[70]Turning briefly to the jurisdiction question which is at issue 7 and 8 - the question of whether that claim is made out of time. It is quite clear that that claim relating to this allegation is of course a long way out of time as it occurred, on the claimant’s case, at the latest on 23 March 2017 with the claim form not being presented until April 2018. So, in that case, we can consider whether it is conduct extending over a period. There is no evidence to that effect. Nothing happened with respect to Mr Vandi after that point nor has the claimant given any evidence with respect to it being just and equitable to extend time. So, in essence, even though we have found no conduct by Mr Vandi which meets that test, even if we had found that there was such conduct, the claim would have been out of time. There being no evidence as to why we should grant a just and equitable extension, the claim could not have proceeded because it was out of time. In any event, the conduct did not occur.

[71]Turning then to the victimisation claim, which is issue 3 - Did the claimant carry out a protected act when it is alleged she raised Mr Vandi’s behaviour with her line manager Ms Isted on or around 20 or 21 March 2017”. We have found that the claimant did not raise matters with Ms Isted as she alleges. Therefore, she cannot have carried out that protected act.

[72]Turning to issue 4, “If so, was she subjected to a detriment namely her secondment agreement being terminated in April 2017”. Because she had not done that protected act, as indicated, we do not need to find that issue as she has shown no protected act. Even if she had, the tribunal could not have found that the termination of her secondment was because her having raised that issue with Ms Isted. The tribunal are satisfied that the respondent had good and reasonable reasons for terminating the secondment which she was well aware of having been told of it in a number of meetings. It was clearly set out in the letter she received. She therefore cannot succeed in any victimisation or harassment claims.

[73]In any event the victimisation claim would also have been out of time as the secondment was terminated in April 2017 and the claim form presented in April 2018. For the same reasons the tribunal does not believe this is conduct extending over a period or that there has been any evidence that it was just and equitable to extend time, so, those claims are bound to fail.

[74]We then considered the constructive unfair dismissal at issue 5 - “Did the respondent commit a fundamental breach of contract as set out by the claimant in the letter to the respondent of 9 February 2018. In particular, the claimant complains of the following” and then there are letters(a) to (e) for which our findings are these:- (a) The failure to carry out an investigation into the claimant’s grievance of sexual harassment fairly and in a timely fashion in accordance with the Dignity at Work Policy. The tribunal accepts that there were some delays with respect to this matter. We understand that the Dignity at Work Policy suggests an outcome within 25 working days and this was somewhat longer. On the other hand, the claimant was supposed to raise this matter within three months and she did not do so, but the respondent decided that, given the nature of the complaints, they would look into it. The tribunal is satisfied with the reasons given for the delay in relation to the change in the investigator and our experience is that it often takes longer to investigate these matters than is anticipated. The process was an entirely fair and equitable one including the trade union side being able to review the outcome. There is no breach with respect to the investigation of the claimant’s grievance except a very small technical breach with respect to timings.

(b) relates to the alleged sexual harassment. We have found no such sexual harassment so there can be no breach.

(c) is the alleged incident with Ms London in April of 2017 where it is alleged the claimant was asked about the dress code aggressively and the claimant was humiliated, and later sharing of the claimant’s email address with Ms London. There are two aspects to this. As our findings of fact have made clear, we have no difficulties with the conversation that Ms London had with the claimant about the dress code and we have not found any aggressive behaviour by her. There is no breach of contract there. Similarly, with respect to the email address, this was something the claimant had already shared with the respondent. It had no impact on her whatsoever. At most, it is an unfortunate mistake. It certainly does not amount to a breach of contract.

(d) is the respondent seeking to recover an overpayment of salary at a rate the claimant could not afford and Mr Jones acting in a dismissive manner. We can find no breach here. The respondent was entitled to recover an overpayment the claimant was well aware of, at a level which she should have been able to afford having received money to which she was not entitled as she was well aware. We have not found any dismissive behaviour by Mr Jones and there is no breach there. (e), failing to provide all documents under a Subject Access Request. We have found that although this was slower than is ideal, we cannot find that it had any particular impact on the claimant and we do not accept that that amounted to a breach.

[75]In summary, we have not found any breaches of contract. At most, if there have been some procedural delays, for instance with the sexual harassment grievance and the Subject Access Request compliance, these were a breach of policy rather than a breach of contract. Even if there was a breach of contract, it certainly cannot amount to a fundamental breach. There was no indication of any intention by the respondent to be no longer bound by the contract. Even if there had been such a breach, the tribunal would not have found that that was the reason for the claimant leaving as she had made it clear some months previously that she intended to leave the respondent.

[76]For all these reasons the tribunal has not been able to find a breach of contract, much less a fundamental breach and the claimant’s claim for constructive unfair dismissal must fail and is dismissed.

[77]All claims have not been proved, fail and are dismissed.

Introduction

[1]The claimant’s case for constructive unfair dismissal, sexual harassment and victimisation was heard by an employment tribunal in person and by CVP on 26, 29 and 30 November 2021 in line with the preliminary hearing in August 2018 where a list of issues had been drawn up and orders made.

[2]Oral judgment was given on 30 November and the short judgment sent to the parties on 2 December 2021. It appears the claimant had asked for written reasons later that month but her email was overlooked by the tribunal office and reasons were not provided until after the claimant repeated her request towards the end of 2022. It then took some time for reasons to be provided as the hearing bundle of documents had to be sourced.

[3]The claims were all unsuccessful. The claimant was not in attendance at the hearing and an explanation for how the hearing progressed in her absence is set out in the reasons between paragraphs 2-12.

[4]In the letter where she applies for a reconsideration, she states that the decision was “bias and/or perverse”; that the tribunal was inconsistent in allowing one of two out of time claims to be heard and that there was an “overall perverse conclusion based on the direct evidence”. She goes on to state that the tribunal failed to consider all the evidence about disability discrimination (which was not a matter before the tribunal). She also said only 100 of 800 documents were referred to and that she had requested a postponement and was unable to cross examine the witnesses. She says she was unable to participate and therefore was deprived of the right to a fair hearing. Rules

[5]The relevant employment tribunal rules for this application read as follows: RECONSIDERATION OF JUDGMENTS Principles70. A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again. Application

71. Except where it is made in the course of a hearing, an application for reconsideration shall be presented in writing (and copied to all the other parties) within 14 days of the date on which the written record, or other written communication, of the original decision was sent to the parties or within 14 days of the date that the written reasons were sent (if later) and shall set out why reconsideration of the original decision is necessary. Process 72.—(1) An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal. Otherwise the Tribunal shall send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing. The notice may set out the Judge’s provisional views on the application. (2) If the application has not been refused under paragraph (1), the original decision shall be reconsidered at a hearing unless the Employment Judge considers, having regard to any response to the notice provided under paragraph (1), that a hearing is not necessary in the interests of justice. If the reconsideration proceeds without a hearing the parties shall be given a reasonable opportunity to make further written representations. (3) Where practicable, the consideration under paragraph (1) shall be by the Employment Judge who made the original decision or, as the case may be, chaired the full tribunal which made it; and any reconsideration under paragraph (2) shall be made by the Judge or, as the case may be, the full tribunal which made the original decision. Where that is not practicable, the President, Vice President or a Regional Employment Judge shall appoint another Employment Judge to deal with the application or, in the case of a decision of a full tribunal, shall either direct that the reconsideration be by such members of the original Tribunal as remain available or reconstitute the Tribunal in whole or in part.

[6]In essence, my first task is to consider whether the application has been made in time. Although there have been delays in this case, it appears the claimant did ask for reasons within time and has applied for reconsideration within the 14 days after the reasons were sent to her.

[7]I should then consider whether a reconsideration is in the interests of justice. Where I consider there is no reasonable prospect of the decision being varied or revoked, under Rule 72, the application shall be refused.

Conclusions

[8]The hearing was listed to be heard in person. As stated in the reasons, the claimant had previously asked for a postponement which had been refused. She did not re-apply for a postponement on the first day of the hearing but merely said she could not attend. The respondent’s representative and witnesses were present and the matter was ready for the hearing with an extensive bundle of documents and all witness statements, including that of the claimant. We offered the claimant the chance to attend by CVP but she did not reply nor did she attend.

[9]The reconsideration application does not raise issues which would suggest a reconsideration is in the interests of justice. The hearing was an effective hearing with documentary and oral evidence. The tribunal asked questions of the respondent’s witnesses, in part, at least, based on the claimant’s evidence and what seemed necessary to determine the issues. The tribunal considered that evidence and came to its judgment after careful deliberations.

[10]Nothing more said by the claimant in her letter indicates that it is in the interests of justice to re-open matters. She mentions bias and a perverse conclusion but provides no details of that allegation. She refers to a disability discrimination claim which was not before the tribunal. Whilst it was unfortunate that she did not attend, we did the best we could to ensure her case was put to the respondent’s witnesses. I must refuse this application as there is no reasonable prospect of the judgment being varied or revoked. …………..………………………………...…