Mrs S ChandaClaimantRoyal Mail Group LtdRespondent
Before
Employment Judge AnstisMr K Khan for claimantMr R Chaudhry (instructed by solicitor) for respondentDate 27 August 2025
JUDGMENT
The respondent’s application to strike out the claim is refused.
REASONS
[1]These written reasons are produced at the request of the respondent.[2]This application was a development by the respondent of an application to strike out the claim submitted by the respondent in writing on 22 July 2025. That application was not pursued at the time but was revisited by Mr Chaudhry on 25 July 2025 following further developments during the hearing.[3]The application was to “… strike out the ET1 based on Rules 37(1)(b) and (e) regarding the manner in which the proceedings have been conducted by KK and C were unreasonable and that is no longer possible to have a fair hearing within the allocated trial window.” KK is Khurram Khan, the claimant’s representative. He describes himself in his witness statement as being “a Communications Workers Union representative currently waiting for elections” and as having “substantial experience in employment law and tribunal procedures spanning over 13 years”. The respondent accepts that he is a CWU representative and the hearing and consideration of this application proceeded on the basis that Mr Khan, while not a trained lawyer, is experienced in employment tribunal proceedings including advocacy at final hearings.[4]The relevant rule is now rule 38(1) of the Employment Tribunal Procedure Rules 2024, which provides: “The tribunal may, on its own initiative or on the application of a party, strike out … a claim … on any of the following grounds …: (b) that the manner in which the proceedings have been conducted by or on behalf of the claimant … has been … unreasonable … (e) that the tribunal considers that it is no longer possible to have a fair hearing in respect of the claim …”[5]Mr Choudhry accepted that in the circumstances he described the tribunal could not strike out the claim simply because of unreasonable conduct of proceedings. The tribunal would also have to find that a fair hearing was no longer possible (which Mr Chaudhry emphasised could mean a fair hearing within the original listing, following Emuemukoro v Croma Vigilant [2022] ICR 327). THE APPLICATION AND OUR FINDINGS
Introduction
[6]Mr Choudhry’s application was founded on five matters that he said amounted to unreasonable conduct of the claim by Mr Khan on the claimant’s behalf. We need to determine whether these occurred and if so whether they amount to unreasonable conduct of proceedings. a. Non-attendance[7]The first matter relied upon by Mr Chaudhry was “the claimant and Mr Khan’s failure to attend the tribunal on the 21.07.25 leading to 2 day delay to the start of the hearing which resulted in the list of issues being during the third day of the hearing”.[8]It is true that neither the claimant nor Mr Khan attended on the first day of the hearing. Mr Khan attributed that to a mistake on his part, although as Mr Chaudhry pointed out the hearing date is correctly recorded on two case management orders arising from two case management hearings that Mr Khan attended. We find that it is unreasonable conduct of a claim to fail to attend the listed date of a final hearing without reasonable excuse, and there is no reasonable excuse in this case. b. Mr Khan’s late disclosure of 499 pages on the fourth day leading to further delays[9]It is correct to say that Mr Khan presented 499 pages of material on the evening of the third day of the hearing, asking for it to be admitted into evidence, and that this led to further delays.[10]As we will come on to, there seemed at times to be suggestions from Mr Khan that he had previously disclosed or attempted to disclose this material, but that is not correct and we find that presenting 499 pages of additional disclosure at the time Mr Khan did is unreasonable conduct of proceedings. We note that this followed 19 pages of additional disclosure on 21 July 2025 (which the respondent did not object to). c. Mr Khan’s submitting case citations which mischaracterised the authorities or were false citations[11]In support of his application to admit the 499 pages of additional disclosure into evidence Mr Khan cited the following authorities and propositions: “• Robertson v Bexley Community Centre [2003] IRLR 434 (EAT) – late evidence may be admitted if relevant and its admission would not prejudice the other party.• United Co-operatives Ltd v Browne [2007] IRLR 526 (EAT) – the overriding objective of dealing with cases justly includes considering all material evidence.• Kwamin v Abbey National plc [2004] UKEAT/0041/04 – where the issues are serious and the evidence is directly relevant, it should be considered even if late.”[12]While these appeared to be important and relevant citations of law, the tribunal on investigation could not find those propositions of law in those cases, and could not find one of the cases referred to. It seemed to the tribunal that these may have been generated by AI.[13]On questioning Mr Khan about this, he accepted that the propositions he cited Robertson and Kwamin for could not be found in those cases, and that Browne did not exist. He denied having used AI but could not explain how these false case citations had come to be in his submission.[14]Whether generated using AI or not, we find that false citations of authority amounts to unreasonable conduct of proceedings. d. The claimant’s false assertions that the respondent’s representative have failed to include all the documents that the claimant wanted to add to the bundle leading to delays[15]During the course of his application in support of the entry of the 499 pages of disclosure into evidence, Mr Khan appeared to suggest that he had either disclosed or attempted to disclose the material (or at least some of it) before but been thwarted by the respondent refusing to accept any documents other than by uploading to its Sharepoint system, which Mr Khan said was unable to accept the full range of material he wished to upload. In other words, that it was the respondent’s rather than the claimant’s fault that he was now making his application.[16]In response to this, Mr Chaudhry produced a series of emails, starting with the respondent’s solicitors providing Mr Khan with a draft bundle and index on 1 April 2025, and chasing him for a response to this proposed bundle on 24 April and 14 May 2025, apparently without any response from Mr Khan. On 16 May 2025 Mr Khan wrote saying “Please send this to me for download bundle and index” which appears to be a request for a link (or new link) to access the bundle and index. That was sent to him. Later that day he says “There are documents missing from your disclosure. Please send me an upload link.” Mr Khan subsequently sent to the respondent by email attachment substantial further documents he wanted to be added to the bundle on 28 May, 24 June (twice), and 27 June 2025. So far as we can tell all of this material was added to the bundle. On 18 July, the Friday before the hearing was due to commence on Monday, Mr Khan wrote to the respondent saying “with due respect, the bundle … sent by you are unagreed”. In fact the bundle presented for this hearing by the respondent contains almost 300 pages under a hearing “claimant’s documents – disclosed after statement exchange – unagreed by respondent”.[17]We have not fully explored the matter, but it appears that the original bundle was 379 pages long, and that this was extended to 667 pages by further disclosure from the claimant. We see that the respondent was willing to accept material submitted other than via its Sharepoint system, and note that the claimant was provided with a draft bundle on 1 April but made no comment on this for around six weeks, following which he sent further material for inclusion in the bundle which has been added but which did not include the 499 pages he now wished to rely on.[18]We accept that Mr Khan attempted to create a misleading impression as to the status of the additional 499 pages and why they were not included in the existing tribunal bundle, and that this amounts to unreasonable conduct of the claim. e. Not informing the tribunal that the amendment application the claimant was making (or one in very similar terms) had previously been refused[19]On the third day of the hearing, in discussion on the list of issues, Mr Khan sought to add what became “The respondent could not move the claimant to another shift without her consent given the terms of the joint statements of 2 March and 13 March 2023.” to the list of issues as an element of unfairness in support of the claimant’s allegation of unfair dismissal. This was originally expressed as being that she could not be moved to another shift due to the terms of the realignment agreement or procedures, as to which Mr Choudhry reserved his position pending sight of the realignment agreement or procedures that Mr Khan had in mind. It later became that the claimant could not be moved to another shift due to the terms of the joint statements, not the realignment agreement or procedures.[20]It was only in the course of discussing this application that one of the tribunal panel members noted that a previous case management order recorded the refusal of a previous application to amend by the claimant, and on further investigation it was found that this application was in very similar (albeit not identical) terms to the one that Mr Khan was now making. The question that he sought to add to the list of issues at that time was “Did the Respondent breach the Claimant’s contract of two joint statements indicating that no one should be forced to move to another shift unless it was voluntary. This was stated in the joint statement of 2nd of March 2023 which reaffirmed the commitments to the Business Recovery Transformation and Growth Agreement, the MTSF Agreement and the IR Framework.” It was made as an application to add a claim of breach of contract, rather than as an element of unfairness, but the brief reasons given for refusing the application did not suggest that it being alleged as a breach of contract was part of the reason for refusal. Mr Chaudry was not at that hearing. Mr Khan was.[21]We note that Mr Khan wrote to the tribunal after that hearing with an “application to challenge refusal of amendment” which sought to criticise the judge’s reasons for refusing his application to amend. That application has not been formally addressed by the tribunal, but Mr Khan was unable to explain in this hearing how such an application (made other than by way of appeal to the EAT) could be within the jurisdiction of the employment tribunal.[22]We find that it was unreasonable conduct of proceedings to make such an application without informing the tribunal of the refusal of the previous application that had been made by the claimant in very similar terms. Deliberate failures?[23]Mr Chaudhry suggested that Mr Khan’s behaviour was “at its highest deliberate”. As set out above, there is reason to believe that some of the behaviour Mr Chaudhry has criticised was (at best) disingenuous, but in an application based on unreasonable conduct of the claim we do not need to go further than finding the behaviour to amount to unreasonable conduct of the claim. Mr Chaudhry accepted that even in a case of deliberate misbehaviour, a strike out application would still require a finding by the tribunal that a fair hearing was no longer possible. A fair hearing?[24]There remains the question of whether a fair hearing was possible, with Mr Chaudhry suggesting that it was not possible within the remaining time allowed, rather than not possible at all.[25]The question of a timetable for the hearing has been one that we have had constantly under review and discussed with the parties, with us indicating that we intended to impose formal limits on the time allowed for cross-examination in order to ensure that the evidence was completed in time. From an early stage it has been Mr Khan’s position that his cross-examination of the respondent’s witnesses could be completed in a day. Mr Chaudhry had originally said that he could complete his cross-examination of the claimant’s witnesses in two and a half days, although by the time we made our decision on this application Mr Khan had indicated that only two of the six witnesses would be attending (that is, Mr Khan and the claimant herself) in which case Mr Chaudhry said he would need a day and a half. By the time of our decision we had three and a half days left of the original listing, so it seemed clear that at least evidence could be completed in that time.[26]Mr Chaudhry was concerned that the tribunal would have limited deliberation time, which is a welcome concern but for obvious reasons we do not consider us being able to reach and deliver a decision within the allocated time to be an essential ingredient of a fair hearing. Mr Choudhry also suggested that a day may not be sufficient for Mr Khan to properly question the respondent’s witnesses, but Mr Khan (who as we have said, is an experienced tribunal advocate) considers that it is, and we consider it sufficient to enable any necessary challenges to the respondent’s evidence to be made by Mr Khan, even if without the elaboration or build up of steps that may make a textbook cross-examination. In any event, we consider it would be obtuse for us to find that Mr Khan needed more time than he said, and on that basis to then determine that a fair trial could not be conducted within the time allowed and strike out the claimant’s claim. In such circumstances even an imperfect crossexamination would surely be preferable and more in the interests of justice than a strike out of the claimant’s claim. Accordingly we refuse to strike out the claimant’s claim. Approved by[1]The claimant was employed by the respondent in the position of Operational Postal Grade at Jubilee Mail Centre in west London.[2]She brings claims of unfair dismissal, direct race discrimination and racial harassment, detriments on account of trade union activities, victimisation and breach of contract arising out of the respondent moving her from the early shift to the late shift, and matters arising during the course of that, including her dismissal, which is said by the respondent to be for “some other substantial reason”. The hearing and a list of issues[3]The hearing of this case did not proceed smoothly. Neither the claimant nor her representative attended on the first day of the hearing: Monday 21 July 2025. We used the day for reading into the case and adjourned to Wednesday 23 July 2025, when we understood her representative would be available.[4]Much of the day on Wednesday 23 July was spend trying to define a list of issues for the hearing. A list of issues had previously been established at a case management hearing on 9 January 2025 but it appeared that that needed further consideration as it seemed to include some claims that were not legally sustainable (such as the claimant’s relevant trade union activity being “taking part in lawful strike action”) or that simply could not succeed (such as alleged victimisation detriments occurring prior to any protected act). The question of protected acts for the victimisation claims appeared particularly difficult, since the claimant had alleged ten protected acts, mostly documents submitted in writing. Some of those documents did not seem to be in the tribunal bundle, and it was difficult to see how others could qualify as protected acts despite some of them apparently being accepted by the respondent as protected acts.[5]A list of issues for the claim was eventually determined by way of an order dated 25 July 2025, and that list is included as the appendix to this judgment. It was something of a cause for concern that during this process the claimant’s representative accepted that the first five previously alleged protected acts either did not exist or could not count as protected acts, and the trade union activities said to be the reason for detriments and the claimant’s dismissal changed from participation in lawful strike action (and undefined in the case of the detriments) to raising a particular grievance.[6]A further cause for concern, as referred to below, is that during the course of the claimant’s witness evidence she made a number of statements which were entirely at odds with some of the claims described in the list of issues. To his credit, Mr Khan readily accepted that in the light of that the claims could not continue, and those claims are struck through in the list of issues in the appendix. We have also indicated with a double-strikethrough alleged protected acts that are no longer relevant as they post-date the only act of victimisation now alleged. We have also added in bold and square brackets numbers to the remaining factual allegations of discrimination or detriment for ease of reference.[7]All of this, and further applications made by the parties along the way, meant that the tribunal did not start to hear evidence until the afternoon of Friday 25 July, which had originally been listed as the fifth day of this eight day listing. In order to ensure the claim could be heard within the time allowed we made an order under rule 45 which both parties were able comfortably to comply with, and evidence concluded by the end of the day on 29 July 2025. Arrangements were then made for the parties’ closing submissions the following day.[8]While written submissions had not been expected from Mr Khan he did provide written submissions on the morning of the final day of the hearing (30 July 2025), as did Mr Chaudhry.[9]Unhappily, it appeared that Mr Khan’s written submissions contained citations of case law that could not be verified by the tribunal or in respect of which the proposition cited did not seem to arise from the case cited. This was not the first time during this hearing that this had happened. Our judgment of 28 July 2025 finds it to be unreasonable behaviour that Mr Khan cited three authorities in support of his application to admit additional disclosure where “the tribunal on investigation could not find those propositions of law in those cases, and could not find one of the cases referred to”.[10]At the point those citations were found to be incorrect, we indicated to Mr Khan that there must be no repetition of this problem and that he should take care in his citation of authority. However, on considering his written submissions we identified three citations of case law that seemed to suffer the same problems we had identified previously.[11]The citations in question were:a. “Under Anya v University of Oxford [2001] ICR 847, discrimination can arise from combination of protected characteristics.”b. “Under Bahl v Law Society [2004] IRLR 799, discrimination often manifests when minority individuals challenge authority.”c. “Under Dhaliwal v Manpower Services Commission [1981] IRLR 156, conduct must be viewed from recipient's perspective.”[12]In common with the previously identified references to case law, none of those propositions are necessarily incorrect (although they may be incomplete), but it appeared to us that none of them arose from the cited cases, and the case at [1981] IRLR 156 is Ojutiku & Oburoni v Manpower Services Commission, not Dhaliwal v Manpower Services Commission.[13]We provided Mr Khan with copies of the relevant case reports and asked him where he found the propositions cited in the cases. We allowed him an adjournment to consider the matter.[14]On his return Mr Khan was completely unable to explain how he had derived those propositions from those cases. Anya and Bahl are both substantial cases, but the judgment in the Manpower Services Commission case is only three pages long. Neither Mr Khan nor the tribunal were able to derive these propositions from these cases. Mr Khan was completely unable to account for how it was that he had derived these propositions other than (as he had said on the previous occasion) internet searches.[15]It is profoundly unsatisfactory that this situation has arisen. Once would be bad enough but we now have a second time after Mr Khan had been given a warning.[16]The practical point that arose following this was identified by Mr Chaudhry. Mr Khan cited multiple authorities in his closing submissions. A sample of them had been found to be inaccurate. Some others appeared to be accurate, but had not been investigated. Given the inaccuracies that had been found it would be reasonable for Mr Chaudhry and possibly the tribunal to attempt to verify the citations before taking them into account. There were a large number of citations – perhaps up to 30. To do so would require an adjournment, possibly with costs consequences.[17]In the event, Mr Khan agreed to Mr Chaudhry’s suggestion that rather than that we continue with closing submissions, but disregarding any reference by Mr Khan to case law.[18]In the course of his closing submissions Mr Chaudhry revisited a costs application he had made but not pursued earlier in the hearing.[19]We had previously thought that there was some possibility we may be able to give an oral judgment later in the day on 30 July 2025, but the discussions about incorrect citation of case law took so long that that was no longer possible. We reserved our decision, convening in chambers on 8 August 2025 for further deliberations.[20]Finally, following the conclusion of the hearing we have received further submissions from Mr Khan. No provision was made for such further submissions and they have not been taken into account.[21]A number of applications were made by the parties during the course of the hearing, which were determined by us in the following written orders or judgments: - Order 21 July 2025 - Order 24 July 2025 - Order 25 July 2025 - Judgment (with reasons) 28 July 2025 (in respect of the respondent’s application to strike out the claimant’s claim) B. FURTHER OBSERVATIONS The claimant’s witness evidence[22]Unfortunately we have at this stage to address what we consider to be significant problems with the witness evidence presented by the claimant.[23]The claimant has presented six witness statements in support of her claim, although only she and Mr Khan actually gave evidence on her behalf. With four witnesses not attending for cross-examination we have taken the view that we should place no weight on their witness statements, particularly given the concerns set out below about how the witness statements may have been drafted.[24]Each witness statement was constructed in a similar manner: not in a conventional narrative form but essentially in the form of a legal argument, with summary references to events, supported by various propositions of law. This was particularly the case with the claimant’s witness statement, which across 17 pages contained something like 18 statutory references and 15 references to case law.[25]This hearing provided a clear example of why that is not the right way to construct a witness statement. It was inevitable that the claimant would be questioned about these legal references, and she was. There was extensive reference in her witness statement to, for instance, “s152 TULR(C)A 1992”. On questioning, not only did the claimant not know what s152 contained, she was unaware of what “TULR(C)A” was or what it stood for. She was similarly unable to provide any indication of what the case law she cited meant or how it was relevant to her claim, still less account for what was an obviously incorrect reference to Meek v City of Birmingham District Council [1987] IRLR 250.[26]The problems were not just confined to the legal references. The claimant’s statement identified as protected acts grievances submitted to one of the respondent’s managers on 27 & 31 January 2023, and said that they could be found in “additional disclosure”. It was established in the discussion about the list of issues that while many others had raised such grievances, the claimant herself had not, and she was completely unable to account for how that reference to grievances came to be in her statement or what she had in mind in saying it.[27]The claimant’s witness statement said: “My formal grievance dated 4 February 2023 explicitly stated that the forced shift change 'will result in a trade union detriment' and that I had 'been subjected to detriments on grounds related to union membership or activities contrary to section 146 TULR(C)A 1992.' I specifically mentioned my 'taking part in industrial action' as protected trade union activity.”[28]It came as something of a surprise, then, when she told Mr Chaudhry in cross examination that she had never taken part in any industrial action.[29]Beyond that, as we have noted before, there were elements of the claimant’s claims as set out in the list of issues that were at odds with her oral evidence. These ranged from points of detail to what had seemed at earlier stages of her claim to be pillars of her claim, such as that her trade union activity was the cause of her dismissal, or that the act of moving her from early to late shift was itself an act of unlawful discrimination.[30]In a similar manner to her witness statement, her grievance of 4 February 2023 was couched in formal legal terms that the claimant found herself completely unable to explain and did not seem to understand.[31]The claimant had cited in the list of issues six comparators in respect of the withdrawal of full sick pay from her. In her oral evidence she accepted that she had no idea of whether full sick pay had or had not been withdrawn from those comparators. She had no idea of the individual circumstances of the comparators and no understanding of the circumstances in which full sick pay had or had not been withdrawn from those individuals. Her position was essentially that she had been told by Mr Khan that those individuals had received full sick pay.[32]While it hardly suggests best practice that the claimant had no idea of the circumstances of the comparators she relied on, we accept that in many circumstances people other than a claimant may have a better view of the comparators than the claimant themselves. The problem is that neither the claimant nor Mr Khan (her only other witness who attended the hearing to give evidence) explained the circumstances of the others who had or had not received full sick pay.[33]Inevitably this led to questions being asked about how the witness statement came to be drafted. The claimant said it was a joint effort between her and Mr Khan. When questioned about it, Mr Khan denied writing the witness statement (or the legal elements of it) preferring to speak of it emerging from multiple rounds of discussion and advice seeking from the claimant. The point was particularly stark on the question of citation of authority and statute law, and the legal propositions that appeared in the claimant’s witness statement and also in her grievance of 4 February 2023. It seemed to us that this was very unlikely to be the claimant’s work, and we could not see how detailed citation of specific case law could be said to have come about of the claimant’s own motion following discussions with Mr Khan. Outside the question of legal argument, we also have, for instance, the references to others receiving or not receiving sick pay as to which the claimant knew nothing, despite it being in her statement.[34]We find that the claimant’s statement is substantially the work of Mr Khan, and is more to be regarded as including what Mr Khan considered convenient or helpful to the claimant’s case than as her own account of events. Indeed, at times (such as the reference to January grievances) it seemed to have more to do with a broader position adopted by Mr Khan on behalf of the CWU to reorganisation within the Jubilee Mail Centre than anything to do with the claimant’s own situation.[35]In her oral evidence the claimant repeated a theme which can be summarised as being that the respondent was within its contractual rights to transfer her from the early shift to the late shift (and that the respondent treated all those it regarded as being temporarily assigned to the early shift equally in this respect) but that she was uniquely disadvantaged in being the only person who made a flexible working request that was not granted. The claimant said that her flexible working request was intended to be for up to six months, to cover the period her in-laws were planning to visit the UK from India.[36]Given that much of her case had seemed to be concerned with health issues preventing her from undertaking the late shift work, it was surprising to hear from her in oral evidence that she was willing at least to contemplate the night shift work once her in-laws had returned to India, as they were obliged to do given the maximum six-month limit on their stay in the UK. That was at odds with the position she had adopted during the events in question, which was essentially that she was never going to work on the late shift (other than an offer of one day a week). For the claimant, as expressed in her oral evidence, the problem was primarily that her flexible working request had not been granted.[37]Following on from that, the claimant’s position was that as she was both the only south Indian or Telugu woman who had requested flexible working, and the only person who had had their flexible working request refused, it followed that the refusal and some of what followed were matters of race and sex discrimination (albeit the sex discrimination claims were withdrawn in their entirety during the hearing).[38]We shall go on to describe our findings in respect of that, but aside from the obvious problems that may arise with such a position there was the problem that this had never been the position adopted by Mr Khan on her behalf in this claim nor did it seem to match with what was on the list of issues. The position of Mr Khan[39]It is clear to us that Mr Khan has had considerable influence over the conduct of this claim and the construction of the claim on behalf of the claimant, so we should say something about his status in this litigation.[40]In his witness statement Mr Khan says “I am a Communications Workers Union representative currently waiting for elections. I represented Mrs Chanda throughout these proceedings and have substantial experience in employment law and tribunal procedures spanning over 13 years.”[41]In cross-examination by Mr Chaudhry, and in answer to questions from the tribunal panel (which post-date our decision on the respondent’s strike out application) Mr Khan said that his status as a “representative currently waiting for elections” arose from what appears to be a somewhat complex process whereby he was dismissed but later reinstated after some lengthy procedure. While describing himself as having “substantial experience in employment law and tribunal procedures”, under questioning from Mr Chaudhry as to his conduct of the claimant’s claim Mr Khan somewhat distanced himself from this on the basis that while he had conducted dozens of claims and preliminary hearings he had only participated in one final hearing.[42]While Mr Khan spoke of himself as a CWU representative and said that he had been nominated by his local branch in respect of employment tribunal claims it was also his position that when representing the claimant he was acting in a personal capacity. We are not in a position to say how the claimant saw things, but it does seem liable to give rise to confusion and misunderstanding if a union representative with special responsibility for employment tribunal claims represents union members, but only in a personal capacity, rather than on behalf of the union.[43]In the light of the problems that arose during the course of the claimant’s evidence Mr Khan was very properly willing to withdraw elements of her claim that could not be sustained, but it was a cause for concern that these had ever been brought at all when, for instance, the claimant readily accepted that her trade union activities were not the reason for her dismissal and also where the gradual withdrawal of claims meant that by the end of the case there remained no claims of sex discrimination.[44]This withdrawal of various elements of the claim left a somewhat puzzling mix of remaining claims that still seemed some distance from the claimant’s practical concerns in this case. For instance, while what seemed to cause the claimant the most concern in her oral evidence was the refusal of her flexible working request, by the end of the hearing that was not mentioned at all in the list of issues.[45]We have made further observations as to the conduct of Mr Khan in our judgment of 28 July 2025, and will need to return to that later in this decision when we consider the question of costs. C. THE FACTS Re-alignment at the Jubilee Mail Centre[46]Immediately prior to the events the claimant complains of she worked on the early shift at the Jubilee Mail Centre, a major mail sorting depot in west London. It is the respondent’s position that she was temporarily assigned to the early shift while her substantive role was on the late shift. The contractual documents we have been referred to say nothing about the claimant’s shift, although it is agreed that she worked on the late shift prior to her move to the early shift in 2021. This is described in the relevant document as being a “temporary change in your part-time hours” with the claimant moving from 17.5 hours a week to 20 hours a week in November 2021. Shifts are not mentioned, although everyone agrees that at this point the claimant moved from the late shift to the early shift.[47]It also seems to be agreed that this was understood to be for an initial six month period (though this is not documented) but nothing changed after six months (which is also not documented).[48]We had at one point thought that it may be the claimant’s case that she could not in those circumstances later be moved from the early shift to the late shift without her consent, but in her evidence the claimant readily accepted that the respondent could move her (and presumably her colleagues) between shifts at will. She accepted she had no contractual entitlement to remain on the early shift. One inhibition on the respondent’s ability to move her and her colleagues may have been trade union agreements, but given decisions made at earlier stages in the claim and by us in the first week of this hearing the claimant was prohibited from arguing that any collective agreements or any other convention agreed with the trade union prevented her move or restricted the respondent from moving her to the late shift.[49]The claimant accepted that the respondent could properly have considered her to be temporarily assigned to the early shift, even if that was not the way she saw things.[50]The intention to move the claimant from the early shift to the late shift appears to have come about as part of a “re-alignment” procedure. Quite what “realignment” meant was never fully explained to us by either side, but it appears to be a process of reconfiguring duties to match the requirements of the respondent’s customers and volume and pattern of mail that needed to be processed. We note that at the time we are considering the respondent was reverting from its configuration during the time of the Covid-19 pandemic (with increasing demand including the critical question of delivering Covid-19 tests) and its longer-term positioning with declining mail volumes and possibly increasing requirement for parcel deliveries. We also understand that the respondent was prioritising its service obligations in respect of first class post (typically dealt with on the late shift) as opposed to second class post (typically dealt with on the early shift). We have seen reference to industrial unrest in relation to this, and possibly industrial action, but this has no direct relationship to the claimant’s claims, and given the claimant’s oral evidence and previous decisions we accept that the respondent was, in principle, entitled to move the claimant and a number of her colleagues from the early shift to the late shift. In the case of the claimant this was first notified to her on 24 January 2023 (to take effect from week commencing 13 February 2023). Resistance to re-alignment, and the claimant’s alleged trade union activity[51]It appears that the CWU mustered resistance to this attempt at “realignment”, with many members, possibly at the instigation of Mr Khan or other union representatives, raising grievances. For the claimant, this took effect as a grievance on 4 February 2023. She said in this grievance: “My manager is forcing me to change my work shift from the “Early shift” (6 AM to 10 AM) to the “Late Shift” (6 PM to 9:30 PM) and will allocate me to a random duty, which has not been agreed with my union and will lessen my legal terms and conditions. This managerial executive action will result in a trade union detriment. I contend that I have been subjected to detriments on grounds related to union membership or activities contrary to section 146 TULR(C)A 1992. If appropriate, I rely on Article 11, of the European Convention on Human Rights (Freedom of assembly and association) to claim that my trade union activities include, but are not limited to, my taking part in industrial action. This trade union detriment will greatly affect my life as I have scheduled my entire life around the current Early Shift. I suffer from hypothyroidism, a hormonal disorder which greatly impacts my health and lifestyle and being forced to move to the Late Shift will force me to sleep late and thus reduce my sleep, consequently damaging my health. I have built my life around these hours and now management is attacking me due to my union membership and participation in industrial action. This was always a permanent contract and I do not agree with this managerial executive action to change my shift.”[52]On questioning from Mr Chaudhry the claimant was completely unable to explain the detail of this grievance or how it had come about. She could not explain the references to TULR(C)A or article 11, and she accepted that she had not in fact participated in any industrial action. In her oral evidence her concern with moving shifts was about not being able to care for her in-laws on their intended visit, not about her health. We see in this the influence of Mr Khan’s drafting. Drafting a grievance on behalf of a member may well be a proper action by a union representative, but in this case it does not appear that the claimant had any real understanding of the argument that Mr Khan had prepared on her behalf.[53]Many other union members submitted grievances earlier in January, but the claimant did not, which may help to explain, if not excuse, the various references in the original list of issues to grievances raised in January.[54]That grievance was said by the claimant to be her relevant trade union activity. The respondent accepted that it was carried out outside working hours, so no question arises as to whether it was carried out at the appropriate time for the purposes of statutory protection.[55]Gurpreet Jagpal, Early Work Area Manager and therefore the claimant’s line manager at the time she raised the grievance, said that she had never seen the grievance. The claimant was in no position to contradict this and did not point to any evidence suggesting that Ms Jagpal knew of the grievance. Therefore allegations9.1 and9.2 must be dismissed at this stage since they cannot have been motivated or caused by a grievance or trade union activity that Ms Jagpal was unaware of.[56]What ultimately became of that grievance or how it was dealt with was not an issue in this case, but there is in the bundle some correspondence from May 2023 from Jagesh Chander, Ms Jagpal’s manager and therefore the claimant’s second line manager, following up on the grievance. The claimant’s request for flexible working[57]The claimant was written to again on 21 February 2023 with a revised date for the new shift arrangements to take effect from a later date: the week commencing 20 March 2023).[58]We were referred to an exchange of WhatsApp messages between the claimant and Mr Chander, with the following on 19 March 2023, the day before the claimant’s new shift arrangements were due to come into force: “SC: Good morning Jags, I would like to come and meet you tomorrow morning, what time is it convenient for you? JC: Happy to meet you – if its about your shift I can’t change anything now – I’ve been battling for the past few months to keep you but it’s out of my hands now. SC I want to stay in early shift Jags, due to some pressing family commitments … My in-laws are coming here and I have to take care of them. They are going to stay til September. Please help me until September Jags.”[59]And on 20 March 2023: “SC: Hi Jags, any updates for me … please let me Jags. Please let me know Jags. JC: Eric [Eric Ashiagbor – the plant manager and Mr Chander’s manager] has granted one week only (this week). You will be on lates next week and need to complete a flexibility form with Olawale [Olawale Banwo - the late shift manager and so Mr Chander’s equivalent for the late shift] when your parents are coming over. There will be no extension beyond this week. SC: So which means I will be coming to early shift this week … am I correct Jags JC: Yes SC: Thank you Jags. Also I will come and meet you. JC: For clarity – it’s one week with me on earlies. I will speak to you tomorrow regarding your flexibility request – this is for you only. All the rest of the team are due on late shift tonight. SC: Ok Jags[60]The respondent has a formal procedure for requesting flexible working. Despite the importance this took on in the claimant’s oral evidence, her witness statement is very brief on the matter. She says: “Despite my requests to care for elderly in-laws visiting from India and due to health conditions Jags Chander denied my request on 20 March 2023, granting only one week instead of the requested six months.”[61]The claimant refers to this denial being on 20 March 2023 and involving the granting of only one week. That would mean she is thinking of the WhatsApp messages we have set out. It seems to us completely unrealistic for the claimant to expect that a flexible working request for six months may be granted simply on an exchange of WhatsApp messages, and there is no mention of the claimant requesting this due to health conditions in her WhatsApp messages nor her later more formal request.[62]The claimant made a formal flexible working request on 21 March 2023, but this is not mentioned in her witness statement. The tribunal bundle has a copy of that application. The reasons for it is said to be “carer of an adult” and she requests a working pattern of 06:00 to 10:00 Tuesday to Saturday, the same as her usual early shift working pattern. She provides no supporting details or information. The date of 21 March 2023 of that request would match the idea that the claimant was to meet Mr Chander the day after 20 March 2023.[63]Neither party give any meaningful description of what happened to that request in their witness statements. The claimant does not refer to it at all and Mr Chander makes only a passing reference to it. Mr Chander elaborated in his oral evidence, saying that he had discussed the flexible working request with the claimant, but found out that the claimant’s in-laws, who she was apparently making the application to care for, were not yet in the United Kingdom. He said that he offered to take the claimant to see Mr Banwo, who by co-incidence was in at the time of the early shift that day, so that she could discuss this with him, given that he was going to be her manager. He says that she refused to see Mr Banwo. Accordingly, while her flexible working request was not subject to any formal decision, it seems simply to have lapsed. This account was not challenged by Mr Khan in cross-examination.[64]Given the lack of any contrary account by the claimant and the lack of any challenge to this in cross-examination, we accept this account given by Mr Chander. We note also that the flexible working requests we have seen from others that were accepted by the respondent seem to be of quite a different nature. All are in respect of current rather than prospective situations, and in general they contain considerably more detail than the claimant’s about the reason for the request and the need for flexible working. In some cases (for instance, Kerrie Sinclair) they are made at quite different times. The flexible working request from Kerrie Sinclair arises in 2025.[65]It is not part of the claimant’s claim that the refusal of her 21 March 2023 flexible working request was unlawful, but it forms important background to her claim. Sick leave and the withdrawal of full sick pay[66]By 28 March 2023 the claimant’s one week extension of work on the early shift had expired and she would have been expected to report for work on the late shift. As we have said, the claimant accepted that the respondent was within its rights under the terms of her contract to move her to the late shift, and given the earlier decisions she is precluded from arguing that collective agreements or other union-related materials prevented this. The respondent was entitled to require her to report for work on the late shift.[67]From this point on the claimant was on sick leave, with her fit notes describing her condition as being “stress at work” and with her GP including the following comment: “please offer morning shift as late shift causing patient anxiety and affecting mental health”.[68]This somewhat unusual form of fit note thus suggested that the claimant was physically able to do either early or late shifts but being required to do the late shift (something we have found the respondent was entitled to do) caused anxiety sufficient to render her unable to work through “stress at work”. Gurpreet Jagpal took up the matter, eventually referring the claimant to occupational health. In a report dated 10 May 2023 the occupational health practitioner said that the claimant was not currently on medication (which seems to be accepted by the claimant as her medication arose later on). The report includes the following: “I asked her if she intended to return to work and she replied she can only go back to work on the morning shift, this is fine for her, but she cannot work in the afternoon, evenings or work any night shifts. She is adamant that there is sufficient work in the business for her to be able to perform employment on the morning shift only. … I suggest based on the above information that this issue will not have a medical conclusion; the situation is based around work shifts and hours and until this is resolved you will probably not see her return to her employment. She is physically well and, in my opinion, following more counselling sessions she should be able to attend to her employment at the end of her current sick note. The situation is now in the hands of business, I suspect that further reviews in occupational health, on this subject, would not be of any value to the business. … The barrier to a return to work in this case seems to be more related to employee workplace concerns rather than a primary medical problem.”[69]Ms Jagpal convened a meeting with the claimant to take place on 15 May 2023, and in a follow up letter said: “I would also like to take this opportunity to remind your that Royal Mail has a Sick Pay Policy in place which outlines a number of requirements of individuals who are absent from work: Entitlement to sick pay is always subject to strict observance of the following conditions: 1. Self- certificates or medical certificates, including ‘fit notes', must be received by the business for all sick absences. 2. The business must be satisfied that an employee's absence is necessary and due to genuine illness. 3. The business reserves the right to refuse sick pay if an absence is due to, or is aggravated by, causes within the employee’s control, or if the employee has neglected instructions given by a Doctor. 4. An absent employee shall remain at their normal home address (other than to receive in-patient treatment) unless they have consent of their line or local personnel manager. 5. Employees who are sick immediately before they are due to go on holiday must confirm to their Line Manager that they are going on holiday on the due date (unless sick absence continues and the employee remains at home). I am unable to satisfy myself that your absence is necessary, a criterion which must be satisfied by Royal Mail. We have relived the stressors and we can deem the absence is no longer necessary. The stressor stating you are only able to work on the early shift and not on your contracted late shift. The occupational report states: 'the barrier to return to work this case seems to be more related to employee workplace concerns rather than a primary medical problem'. After today's meeting you remain absent from work with your latest medical cert stating, 'Stress at work'. Therefore, I am writing to advise you that the Royal Mail element of sick pay will be withheld from 15-05-2023 You will however receive statutory sick pay (where appropriate) providing that you comply with government requirements.”[70]The five numbered points are a citation from the respondent’s sick pay policy. The claimant continued to receive SSP, but the denial of full sick pay forms the basis of her breach of contract claim.[71]Given our findings that Ms Jagpal was unaware of the claimant’s grievance of 4 February 2023 it is, strictly speaking, unnecessary for us to address issues9.1 and9.2 in any further detail, but for the avoidance of doubt we do not accept that Ms Jagpal told the claimant on 15 May “not to rely on Khurram Khan and his is misguiding her at Jubilee Mail Centre”. Mr Khan himself was not present at this meeting, so the only first-hand evidence on this from the claimant’s side was from the claimant herself. We have noted previously that much of her witness statement is in the form of bullet-pointed or summary propositions, without the usual narrative of what happened. On this point she says “May-July 2023: management targets me with threats about union advice and ultimate dismissal”. We prefer the far more specific evidence of Ms Jagpal, who says: “I deny that I told the claimant not to rely on Khurram Khan or listen to his advice as a trade union representative and that following the CWU’s advice could have consequences or that he was misguiding her on … the 15 May … I did not make any of these comments to the claimant.”[72]That is all the more so when she explained in her oral evidence that she herself was a long-standing trade union representative of the union to which the respondent’s managers belonged, so she would not be inclined to belittle or malign advice given by a trade union representative.[73]As for 9.2, it is not disputed that the claimant’s full sick pay was stopped on 16 May 2023, but we have found that this was nothing to do with her relevant trade union activity.[74]Finally in her observations from around this time, Ms Jagpal says “The claimant was unwilling to return to work because she wanted to remain on the Early Shift and not for a medical reason. The matter had to be escalated to the Claimant’s second line manager”. So from this point forward it was Mr Chander who addressed the claimant’s absence.[75]So far we have concluded that detriment [1] (para9.1 of the list of issues) did not occur as a matter of fact. Detriment [2] (para9.2 & 14.2) did occur. We have found as a fact at this stage that it was not caused to any extent by the claimant’s alleged trade union activity, since Ms Jagpal was unaware of the activity in question. It is also alleged as an act of racial harassment, and whether it was an act of racial harassment will need to be considered in our discussion and conclusions. The claimant’s grievance of 19 May 2023[76]The respondent operates a centralised point of contact for grievances, known as the “ERCM Team”.[77]On 19 May 2023 the claimant sent an email to the relevant email address for the ERCM Team, with a copy to Mr Khan. She says, under the subject heading “Grievance and appeal against unjust treatment at Jubilee Mail Centre”: “I am writing to formally register a grievance against the shift manager Jags Chander and urgently appeal against the unjust and unacceptable treatment I have been subjected to at Royal Mail, as well as the unfair application of the sick pay policy. Additionally, I kindly request a thorough review of my shift change situation. Given the gravity of these concerns, I respectfully request the involvement of a senior independent manager outside the plant with the authority to address my grievance appropriately.”[78]She goes on to speak of the “legitimacy of my health issues”, concerns about “the manager’s statement that Royal Mail intends to terminate 20 employees, including myself” (we are not sure what this is a reference to). She says the sick pay policy has not been properly applied to her, asking for “immediate reinstatement of my sick pay”. She says: “I humbly request a comprehensive review of my shift change situation. I am willing to be flexible with my working hours and accommodate the needs of the organization until the 2 pm shift. It is important to consider that this adjustment would allow me to continue contributing to the success of Royal Mail while prioritizing my mental well-being and overall health. I believe that a reasonable solution can be reached through open communication and understanding. In light of the aforementioned concerns, I urge you to assign a senior independent case manager to thoroughly investigate my grievance and provide a fair hearing and resolution. The involvement of a senior independent case manager will help ensure that my grievances are taken seriously and that all relevant factors are considered in a just and unbiased manner.” The 1 June 2023 letter[79]On 1 June 2023 Mr Chander wrote to the claimant saying: “I am sorry that you have been absent from work since 28/03/2023. Further to my previous letters 15/05/2023 I remain concerned regarding your current period of absence, lack of continued contact and failure to consent to a referral to Royal Mail’s Occupational Health Advisors to obtain an assessment of your current condition. I am dissatisfied with the information we have on the prospects of you returning to work. I am now therefore considering terminating your employment because: 1. The business has no reasonable prospect of knowing when you will be fit to return to work, and in what capacity, or 2. The business is not satisfied that you intend to return to your employment with Royal Mail Group in the foreseeable future. As a result, I would like to arrange a meeting with you at 8:00 AM on 06/06/2023 at Shift Manager Office, Jubilee Mail Centre. During the meeting we will be considering the termination of your employment. You will be afforded a full opportunity to put forward any points of mitigation that you consider relevant and appropriate. The documents that we will be referring to in reaching a decision are enclosed for your information. You may be accompanied at the meeting by your trade union representative or a work colleague normally from the same work location.”[80]Although it is said that the meeting will take place on 6 June it actually took place on 7 June 2023.[81]It is the claimant’s position that Mr Chander sending this letter was a detriment on account of her having made her grievance on 4 February 2023 (detriment [3], para 9.4), and that the terms of the letter (in particular the reference to her having failed to consent to an occupational health report) was an act of racial harassment (detriment [11], para 14.3).[82]As regards the first point, it is difficult for us to see what else the respondent could do when faced with this difficult situation. The claimant was refusing to attend the late shift when as we have already found the respondent was entitled to move her to the late shift. Her medical certificates were to the effect that insisting on her returning to the late shift were making her too ill to attend, although there was no other health problem identified in them or the occupational health report that was preventing her from returning to work on the late shift. The respondent had to take some steps to address the matter and that was bound to be something like what the letter of 1 June 2023 indicated. It does not seem accurate to describe this as in issue 9.4 as being “disciplinary action”. The disciplinary procedure was not implemented. If issue 9.4 is that the sending of the letter was improper, we do not accept that, nor do we see that it is anything to do with the claimant’s grievance of 4 February 2023. Issue 14.3 requires consideration as a whole, which we will do in due course.[83]We find as a fact that detriment [3] (para 9.4) was nothing to do with the trade union activity that the claimant relies on. The response to the claimant’s grievance of 19 May 2023[84]It appears that this grievance was referred by the ERCM Team to another manager at the Jubilee Mail Centre, Chris O’Sullivan. His response to the claimant is undated but seems to have been around the time of the claimant’s meeting with Mr Chander. Mr O’Sullivan says: “I acknowledge receipt of your complaint … It would not be appropriate to accept this matter through the Grievance procedure, for the following reasons. Your formal meeting with Jags Chander is to discuss the issues you have raised in your complaint such as your request to remain on the early shift and your sick absence management, if a decision is made to terminate your employment as a result of your final formal meeting you will have the right to appeal, and that appeal will heard by an independent case manager. My understanding is this is your final formal meeting, and should you not attend a decision will be made on your continued employment in your absence, I would advise it is in your best interests to attend this meeting and put these concerns forward so they can be considered when a decision is made. Therefore, I will not be logging your complaint and no further action will be taken under Royal Mail’s Grievance Procedure.”[85]The claimant’s position is that this decision by Mr O’Sullivan was “unfair and not appropriate for the same manager to hear grievance against himself”, and that Mr O’Sullivan did this because of the claimant’s grievance of 4 February 2024 (her alleged trade union activity) (detriment 4, para 9.5). A variation on this: “The respondent’s manager Chris O’Sullivan refusing to hear the grievance of the claimant on the 7th of June 2023” is said to be an act of direct race discrimination, with her comparators being Khurram Khan and Mohammed Abdi (detriment 4, para 11.7).[86]On the question of comparators, Mr O’Sullivan’s evidence shared some of the weaknesses we have previously identified with the claimant’s evidence. While his witness statement said “The cases of Mr K Khan and Mr M Abdi were materially different from the Claimant …” he was unable to explain in what way they were different, nor did he seem to have any idea what had or had not happened for the comparators. Having said that, the claimant only briefly refers to these comparators, simply saying that Mr Khan was allocated an independent case manager and for Mr Abdi his grievance was heard by an independent manager. Notably for the claim of race discrimination the detriment is phrased as being “Chris O’Sullivan refusing to hear the grievance”, so the claimant’s position on this seems to be that Mr O’Sullivan should have heard the grievance himself, not that an independent case manager (a separate individual or group of individuals under the respondent’s procedures) should have been appointed.[87]The first question is whether the grievance is to be considered as a grievance against Mr Chander. While that is how it starts, the respondent’s position was that this was not properly to be understood as a grievance against Mr Chander.[88]Having said “I am writing to formally register a grievance against the shift manager Jags Chander” the claimant goes on to say “and urgently appeal against the unjust and unacceptable treatment I have been subjected to at Royal Mail, as well as the unfair application of the sick pay policy. Additionally, I kindly request a thorough review of my shift change situation.”[89]The application of the sick pay policy was, as we have seen, a decision made by Ms Jagpal, not Mr Chander. The “shift change situation”, resulted from instructions given to the claimant by Mr Cheema, and was not a decision that Mr Chander had made.[90]The claimant goes on to refer to the sick notes from her doctor, presumably in support of the sick pay point she was making (which was Ms Jagpal’s responsibility). She speaks of a “manager’s statement that Royal Mail intends to terminate 20 employees”. She does not say who that manager is, and there is no other reference to this statement in her evidence. Her next point is about the sick pay policy, with her then requesting “a comprehensive review of my shift change situation”. Apart from the first sentence suggesting that in general this was a grievance raised against Mr Chander, we do not see any points that the claimant makes in the grievance about matters that Mr Chander is responsible for. Accordingly we do not agree with the premise of the claimant’s complaint on this point: that it was “not appropriate for the same manager to hear grievance against himself”. There was nothing in the detail of the grievance that was about the actions of Mr Chander.[91]Beyond that, it is hard to disagree with Mr O’Sullivan’s assessment that “your formal meeting with Jags Chander is to discuss the issues you have raised in your complaint”, and the claimant did not disagree with the idea that an independent appeal manager would be (and was) available to hear any appeal. We have also seen nothing in the evidence to link this decision with the claimant’s grievance of 4 February 2023, and reject the idea that this decision was anything to do with the claimant’s trade union activities.[92]On the race discrimination point, in his closing submissions Mr Chaudhry says “[Mr O’Sullivan] denied that C’s race played any part in his decision not to progress the 19.05.23 grievance. [He] did not deal with the comparators grievances nor treat them more favourably than C.”[93]In the case of Mr Khan, a “bullying and harassment case report” appears from p332 onwards in the tribunal bundle. This relates to a grievance raised on 26 April 2023. The report is signed off (many months later) by a “lead plant manager”. This is not what we had understood to be the “independent case manager”, which seems in the respondent to be understood to be a specialised body of employees operating under that title. The page references given by the claimant in her bundle say nothing about Mr Khan being under a disciplinary procedure at the time or what the basis of that disciplinary procedure was.[94]Mr Abdi’s grievance concerns a series of events in 2022. The report is signed off by “people care support”, which sounds more akin to the independent case manager the claimant had in mind. It does appear from the report that there were disciplinary allegations of some kind around that time, but it is not clear what happened to them, how they were resolved, or how they related to the grievance.[95]On the question of trade union detriment, we find that the response from Mr O’Sullivan was nothing to do with the claimant’s alleged trade union activity, nor was the grievance (in substance) against the actions of Mr Chander. The dismissal meeting[96]The claimant had a meeting with Mr Chander on 7 June 2023, following which she was dismissed. The following allegations arise from that: that her dismissal was unfair and an act of direct race discrimination (detriment 9, para 11.8), that Mr Chander not disclosing information on casual hours and permanent regular hours was a trade union detriment and an act of victimisation (with the protected act being the claimant’s grievance of 19 May 2023) (detriment 5, para 9.6 & 18.2 – it is the only remaining act of alleged victimisation) and that Mr Chander’s failure to offer early shift hours to the claimant during the course of the dismissal process was an act of direct race discrimination (detriment 6, para 11.1).[97]Mr Chander, the claimant and Mr Khan were all present at the meeting. Mr Chander introduces it as a “formal non-cooperation meeting”, saying that “the reason we are holding this meeting is your continued absence and at this point I do not believe you have any intention of returning to work on your shift”.[98]Mr Khan questions what is meant by “non-cooperation”. Mr Chander says “for clarity, the non-cooperation is … non-compliance with your employer … Not coming to work or having no intention of working on the duty assigned to you.”[99]Mr Khan says “But your letter says that she has she has not cooperated and not agreed to a referral, but that isn’t the case. She has fully communicated with you all the time.” Mr Chander replies that “The invite letter was a draft, and the reason you are here is because(1) we do not believe that there is a reasonable prospect of knowing when you will be fit to return to work, and in what capacity,(2) we are not satisfied that you intend to return to your employment with Royal Mail Group in the foreseeable future.”[100]Mr Chander works through a timeline of events, which the claimant agrees with but says “this is because of management. You are causing me unnecessary stress and this is not fair”. Mr Chander says “It is my view that there is no reasonable prospect that you will be returning to your role, and therefore I will need to make a decision on your continued employment.”[101]Mr Khan protests, suggesting that the claimant had suggested alternative shift arrangements she could manage. Mr Chander replies that “her duty is now on the late shift”. The claimant asks “what about all the casuals on site? You are still using casuals on the early shift”. Mr Chander replies saying “We had a cyber attack in Royal Mail, which predominantly affected the ability to process international mails. As a result, we have upped our staffing while we support our colleagues at HWDC. We have called staff in to cater for international mails, but when we do not have any, there is not much activity in terms of overtime.”[102]“HWDC” refers to the respondent’s international mail centre near Heathrow. We understand that Jubilee Mail Centre had had to take on international mail work around this time as part of contingency arrangements while HWDC was recovering from a cyber-attack.[103]Mr Khan says “I disagree with what you are saying. There are regular overtime staff attending every day, including favourites and casuals. Can I have a copy of all the overtime or casual sheets since SC has been off, please.” Mr Chander says “I can share that with you”. This is the basis of the complaints about failing to provide this information (detriment 5). Mr Chander accepts that he did say he would share this information but did not follow through on this and did not share it. In his oral evidence to us he said this was because on further consideration he felt it would not be compatible with the GDPR to share information on hours and overtime worked by individuals. As a matter of fact, detriment 5 occurred. Mr Chander did not disclose information on the casual hours and permanent regular hours given to specific sets of individuals. We will consider this separately in terms of whether it is an act of victimisation, but in terms of a trade union activity detriment we accept Mr Chander’s explanation as to why he did not provide this (which was not challenged in crossexamination by Mr Khan) and find that this was nothing to do with the claimant’s alleged trade union activity.[104]We then have the following exchange: “JC But I still need to ask the question, when are you likely to resume to your role on the late shift, and do you have any intention to return? SC No - not late shift – early shift. I came onto this shift through a vacancy, so there is no need to move me. My role is on early shift, not lates. My duty is on the early shift. JC So are you saying that you will not be returning to lates? SC No. I wont be returning. SC My job is early shift, and that is where is should be, I wont be going onto late shift.”[105]Mr Khan objects that the realignment was not agreed with the union. Mr Chander responds that “the realignment is done”, pointing out that the early shift was the worst affected by a decline in mail volumes. He says “Taking back to your scenario on 19th March 2023, where you asked to remain onto the early shift up to September 2023, at that point you said it was to look after your inlaws. After a bit of investigating, we realised that your in-laws were not even here. So I have an issue here with what you are saying.”[106]Mr Khan says “SC is in no position to bring her family here when she is sick. The in-laws have been unable to attend while SC is sick, so they have not arrived.” The claimant’s position in this hearing was somewhat different – that it was her move to the late shift that had prevented her in laws from travelling to the UK, since while on late shift she would not be available to look after them.[107]When the claimant objects that “I have seen staff still here on the early shift who came with me, and have not gone back”, Mr Chander says “There are a handful of staff who have been granted an extension due to personal reasons, and have applied through the flexible working application. All cases have been heard on their own merits.”[108]After further discussion, Mr Chander says: “I need to make a decision. I have to consider what has been said and whether she has any intention of returning to the late shift.” He says “The business has had to make some very difficult decisions, we are losing a lot of money and mail volumes have dropped significantly. The early shift has been tasked with downsizing from 122 staff down to 72, due to mail decline.” The bullying and harassment complaint of 23 June 2023[109]On 23 June 2023 (or 24 June 2023) the claimant submitted a bullying and harassment complaint.[110]In reply to this, Karen Neely, a Customer Service Advisor on the Employee Relations Case Management Team, wrote to the claimant saying “I have made enquiries locally regarding the issues raised in your complaint and based on these enquiries, the ERCM team will not be taking any further action. The reason for this is your complaint relates wholly to the current formal process you are currently under with Jags Chandler and the management of your sick absence. You will have the opportunity to appeal any decision made by Jags and this will be heard by an independent appeal manager allowing you to raise any concerns you have with this formal process that have not been heard already.”[111]The claimant alleges that this action by Karen Neely was an act of direct race discrimination, with Mr Khan and Mr Abdi as her comparators (along with a hypothetical comparator) (detriment 8, para 11.5).[112]This is very much the same kind of complaint made in relation to the decision of Mr O’Sullivan, although it is not suggested that Ms Neely should herself have heard the bullying and harassment complaint. It occurred, and we will need to consider in our discussion and conclusions whether it was an act of direct race discrimination. The claimant’s dismissal[113]Mr Chander’s decision letter is not dated, but he says it was sent on 6 July 2023. It says: “I have now carefully considered all the circumstances of your case and my decision is that I do not believe you have any intention of participating in a meaningful return to work and as such I have made the decision to terminate your employment, you will be dismissed with notice with your last day of service being 29th September 2023 (12 weeks notice) I enclose a report giving details of how I made this decision.”[114]The claimant’s dismissal is said to be unfair and an act of direct race discrimination (detriment 9, para 11.8). The appeal[115]The claimant appealed against the decision to dismiss her. The appeal was heard by Lisa Turley and was unsuccessful. We will address the appeal to the extent necessary in our discussion and conclusions. D. THE LAW Trade union detriment[116]Under s146(1)(b) of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULR(C)A”): “A worker has the right not to be subjected to any detriment … by any act, or any deliberate failure to act, by the employer if the act or failure takes place for the sole or main purpose of … preventing or deterring [her] from taking part in the activities of an independent trade union at an appropriate time, or penalising [her] for doing so …”[117]S148(1) says “on a complaint under section 146 it shall be for the employer to show what was the sole or main purpose for which he acted or failed to act”. In Yewdall v The Secretary of State for Work and Pensions (UKEAT/0071/05) this provision was said to act in a similar manner to the burden of proof in discrimination cases (as to which, see below).[118]What might count as “taking part in the activities of an independent trade union” can be a difficult matter, particularly where (as in this case) the employee in questions holds no particular union office or status (cf Post Office v Union of Post Office Workers [1974] IRLR 22). Direct race discrimination[119]Direct discrimination is addressed in section 13(1) of the Equality Act 2010: “A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic [including race], A treats B less favourably than A treats or would treat others.” Race harassment[120]Harassment is addressed in section 26(1): “A person(a) (A) harasses another(b) (B) if: (a) A engages in unwanted conduct related to a relevant protected characteristic [including race], 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.”[121]Under s26(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.” Victimisation[122]Victimisation is prohibited by s27(1): “A person(a) (A) victimises another person(b) (B) if A subjects B to a detriment because: (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.” The burden of proof in discrimination claims[123]For each of the claimant’s claims of unlawful discrimination (including victimisation) the burden of proof provisions of s136 will apply: "(2) If there are facts from which the … tribunal could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision."[124]The first stage of this is for the tribunal to find that there are facts from which it could decide that there has been unlawful discrimination. This requires more than a “hunch” (Chapman v Simon [1994] IRLR 124), and can involve consideration of any difference in circumstance with comparators (Virgin Active v Hughes [2023] EAT 130). “Something more” than simply a difference in treatment and a difference in a protected characteristic is required (Madarassy v Nomura [2007] IRLR 246).[125]If the burden shifts, the respondent must show that the treatment was “in no sense whatsoever” on the grounds or race, or a protected act etc. (Igen v Wong [2005] EWCA Civ 142.[126]We note, however, the caution expressed by the Supreme Court in Hewage v Grampian Health Board [2012] UKSC 37 at para 32: “it is important not to make too much of the role of the burden of proof provisions. They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or the other.” Unfair dismissal[127]Assuming (as in this case) that the employee qualifies for the right not to be unfairly dismissed, section 98 of the Employment Rights Act 1996 applies: “(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show:(a) the reason (or, if more than one, the principal reason) for the dismissal, and(b) that it is … some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. … (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer): (a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.”[128]A dismissal for “some other substantial reason” can cover a wide variety of matters and scenarios. Concepts of fairness in such a dismissal will often draw from more established reasons for dismissal such as misconduct, capability or redundancy. We will discuss this in more details when considering whether the claimant has been unfairly dismissed. Unlawful deduction from wages[129]The law on unlawful deductions from wages is addressed in section 13 of the Employment Rights Act 1996. While this claim addresses sick pay it does not concern SSP and so can be considered under the unlawful deductions from wages jurisdiction. The essential question is whether the additional sick pay claimed by the claimant was, as a matter of contract law, “properly payable” to her (s13(3)). Costs[130]The tribunal’s jurisdiction to award costs can arise in a number of circumstances. In this case the respondent relies on rule 74(2)(a): “The tribunal must consider making a costs order … where it considers that a party (or that party’s representative has acted … unreasonably in … the way the proceedings, or part of it, have been conducted.”[131]The respondent’s application was essentially founded on the same alleged unreasonable conduct by Mr Khan that we had considered in the context of the respondent’s application to strike out the claim. In our judgment of 28 July 2025 we found that Mr Khan had behaved unreasonably in the conduct of the claimant’s claim in the five ways alleged by the respondent. As such, the threshold for making a costs award under rule 74(2)(a) is met and we must consider making a costs order.[132]Whether to make a costs award in such circumstances is a matter of discretion (Ayoola v St Christopher’s Fellowship UKEAT/0508/13). In Yerrakalva v Barnsley MBC [2011] EWCA Civ 1255 it was said that: “The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had.”[133]If we decide to make a costs award, and if so the amount of any such order we “may have regard to the paying party’s … ability to pay” (rule 82). E. DISCUSSION AND CONCLUSIONS
Introduction
[134]We have referred earlier to the development of the claimant’s case during the hearing and the withdrawal of large parts of it.[135]A problem that affected her case even with the original list of issues but all the more so once the later withdrawals were taken into account was the lack of any logic or analysis as to why any particular detriment was said to be a trade union detriment, a matter of race discrimination or victimisation etc. So far as we can see it has never been the claimant’s case that a particular strand of decisions or particular decisions made by an individual were related to her alleged trade union activities, whereas another particular strand of decisions or particular decisions made by another individual were acts of race discrimination. It is, of course, possible for any detriment to legally have more than one relevant and unlawful cause, but it is not the case that every allegation of trade union detriment is also said to be an act of race discrimination. We have no idea on what basis the claimant made the distinctions between the different elements of her claim. We have no understanding of why, for instance, Mr Chander proceeding with disciplinary action against the claimant is alleged as a trade union activity detriment but had never been said to be an act of direct race discrimination or racial harassment, when the claimant’s dismissal by the same individual is alleged to be an act of race discrimination but (no longer) as having been on the basis of her alleged trade union activity. Why is Mr Chander not disclosing information about casual hours said to be an act of victimisation and trade union detriment, but not race discrimination? We have no idea and have been given no explanation by either the claimant or Mr Khan.[136]Of course, it is not necessary for a claim to have perfect logic, nor does the fact that some claims have not been brought or pursued necessarily weaken those that remain or are pursued. To put it another way, the absence of a claim does not weaken a claim that is brought. It is also possible for things to have more than one cause. However, in a case such as this where there is no direct evidence from the claimant of the cause of the detriments complained of, and where we will have, for a claim to succeed, to draw inferences, it does not assist the claimant’s case that it has the appearance of a range of matters she objects to arbitrarily linked by Mr Khan on her behalf to various protected characteristics or things she has done, without any explanation from either Mr Khan or her as to how she draws the necessary links or has said that a detriment is caused by one thing but not by another. Trade union detriment Was there trade union activity?[137]The first point on the question of trade union detriment is whether the claimant has, in fact, in her grievance of 4 February 2023 carried out a trade union activity (that activity said to be “active support for union disagreements around executive action forcing members onto another shift”). Statute protects the claimant from being “prevented or deterred … from taking part in the activities of an independent trade union … or [being penalised] for doing so”.[138]We have set out the relevant grievance in our fact finding. So far as there is mention of her trade union in it, it is that the change in shift has not been agreed with the union, and she asserts that the change in shift is itself a detriment on account of trade union membership or activity (not a point pursued in this claim). She asserts that her trade union activities “include, but are not limited to, my taking part in industrial action” – although as we have noted, in her oral evidence she denied having taken part in industrial action.[139]In her witness statement the claimant says this was: “… not merely individual complaints, but … explicitly framed as challenges to management's systematic breach of collective bargaining agreements negotiated by the CWU. These grievances directly supported the union's position that Royal Mail was acting in breach of negotiated procedures, making them protected activities …”[140]In this she draws what we consider to be a proper distinction between an “individual complaint” and “directly support[ing] the union’s position … making them protected activities”. She says that the grievance was “explicitly framed” as a “challenge to management’s systematic breach of collective bargaining agreement negotiated by the CWU”. If that was the case then we could see it counting as a trade union activity, but it does not say that. It is true that she says that the change “has not been agreed with my union” but she does not frame it, explicitly or implicitly, as a challenge to a systematic breach of a collective bargaining agreement. Instead, she describes it as itself being a trade union detriment, and goes on to refer to her personal health concerns.[141]In those circumstances, not without some hesitation, we have concluded that this grievance was not a trade union activity. Instead, it was an “individual complaint” about the claimant’s shift move, and that is not protected under s146 TULR(C)A. Were there detriments?[142]The detriments alleged in relation to the allegations of trade union detriment are numbers 1 – 5.[143]In our findings of fact we have found that alleged detriment 1 did not happen (and that in any event Ms Jagpal was unaware of the grievance said to constitute the claimant’s trade union activity). Detriment 2 did occur but was not related in any way to any alleged trade union activity by the claimant. Detriment 3 did occur, but was nothing to do with the claimant’s alleged trade union activity. The grievance referred to in detriment 4 was not in substance a grievance against Mr Chander and Mr O’Sullivan’s response was nothing to do with the claimant’s alleged trade union activity. Detriment 5 occurred but was nothing to do with the claimant’s trade union activity.[144]We should say that although we have made findings of fact in respect of those along the way we do not consider that it makes any difference to our decision if they are considered together. Direct race discrimination[145]The allegations of race discrimination are detriments 4, 6, 7, 8 & 9.[146]Detriment 4 is Mr O’Sullivan refusing to hear the grievance of the claimant on 7 June 2023. This did happen. The question that remains for us is whether the reason why it happened was because of the claimant’s race.[147]The claimant has named two comparators for this, and we have discussed their circumstances in our findings of fact. There is nothing in this from which we could conclude that the claimant’s treatment was a matter of direct race discrimination, and we accept the respondent’s explanation as to why Mr O’Sullivan did not hear the claimant’s grievance.[148]Detriment 6 is Mr Chander failing to offer the claimant early shift hours during the course of the dismissal process.[149]It is correct to say that Mr Chander did not offer the claimant early shift hours during the course of the dismissal process. The question is whether this was an act of race discrimination, which must start with our consideration of the position of the comparators named by the claimant. Both are accepted by the respondent to be of a different race to the claimant.[150]It is not in dispute that at the time the claimant was required to move from early to late shift a number of people remained on the early shift. The respondent’s position, essentially unchallenged by Mr Khan, was that these were people permanently assigned to the early shift who were not moved. The claimant and almost all her colleagues who were considered to be temporarily assigned to the early shift were all moved to lates, subject to a handful who successfully made flexible working requests to delay their move back to late shifts. We have noted previously that the retention of permanent early shift staff on the early shift led to considerable overstaffing on the early shift at the time.[151]Of the claimant’s named comparators, Mr Khan did not dispute the evidence of Mr Chander that Cristina Campos was a part-time permanent early shift worker who remained on the early shift (as that was her permanent shift) and was offered overtime on the basis that she had specialist skills necessary for processing international mail at the time that Jubilee Mail Centre was dealing with international mail following the cyber-attack affecting HWDC. The claimant’s other named comparator for this claim was Meriya Cilan. Neither the claimant nor any of the respondent’s witnesses gave any evidence about Ms Cilan, whether she had remained on early shift or what her circumstances were, so she does not assist our consideration of comparators.[152]There is nothing in this from which we could conclude that the failure by Mr Chander to offer the claimant early shift hours during the course of the dismissal process was a matter of direct race discrimination.[153]Detriment 7 appears to be closely related but is put somewhat differently: “Jags Chander and Lisa Turley during the dismissal and appeal process failing to offer the claimant overtime opportunities and/or failing to allow her to return to the early shift.” We do not think the claimant is talking about overtime opportunities in the late shift, so both of these elements of detriment 7 seem to relate (as does detriment 6) to her not being given work on the early shift.[154]As with detriment 6, this occurred. The claimant was not given any work on the early shift. The question is whether there is anything from which we could conclude that this was an act of unlawful race discrimination.[155]The claimant names three comparators: Harpreet Kaur, Mayuran Thevalingam and Neetu Singh. The respondent accepts that none of these comparators are south Indian or Telugu.[156]Mr Chander’s account of the circumstances of these individuals was not challenged by Mr Khan. Each of the comparators made flexible working requests on being required to revert from the early shift to the late shift. Each were given temporary extensions of time (to either July 2023 or October 2023) on early shift but had eventually to return to lates.[157]Of course, the claimant herself had made a flexible working request, but she declined to pursue it with the relevant manager and in contrast to the others it was based on a prospective need to care for adults not yet in the United Kingdom, as opposed to the others make their application based on their current circumstances. In those circumstances we do not consider they could be considered appropriate comparators for the claimant. There are material differences and there is nothing in their treatment from which we could conclude that the claimant had been subject to direct race discrimination.[158]Detriment 8 is “Karen Neely refusing to have her bullying and harassment complaint heard”. We have found that this occurred. The same comparators are relied upon as with the similar allegation in respect of Mr O’Sullivan’s decision.[159]The claimant’s case on this point ran up against the difficult problem of whether Ms Neely, who so far as we are aware never had any face to face dealings with the claimant, was actually aware that the claimant’s race or ethnic or national origin was south Indian or Telugu. In answer to a question as to whether Ms Neely knew of her race, ethnic or national origin, the claimant said “maybe not”. Mr Khan’s closing submission does not give us any help on the question of how Ms Neely could have known that the claimant was south Indian or Telugu. In his closing submission, Mr Chaudhry says “Ms Neely (‘KN’) would not have known C’s ethnicity and thus her refusal to progress the B&H had nothing to do with race. Moreover, KK has failed to establish that KN knew anything about the comparators.”[160]Unlike in the case of Mr O’Sullivan we do not have any first hand evidence from Ms Neely as to what she did or did not do, but we regarded it as being necessary for the success of the claimant’s race discrimination claim on this point that Ms Neely knew or suspected that the claimant was south Indian or Telugu, and in the absence of any evidence to suggest that this element of the claimant’s claim must be dismissed. In any event, we have already found that the claimant’s circumstances were not comparable to those of the comparators she relied upon.[161]There remains detriment 9, the claimant’s dismissal, which we will address when considering unfair dismissal. Race harassment[162]The allegations of race harassment are alleged detriments 2 and 10.[163]Detriment 2 is the stopping of sick pay, which occurred. The allegation that stopping sick pay was an act of racial harassment was never put by Mr Khan to Ms Jagpal during her evidence and we see nothing to suggest that the removal of full sick pay in any way related to the claimant’s race. The claimant has not suggested any way in which this could be related to her race, and in the section of her witness statement addressing “harassment related to race” and “unwanted conduct creating hostile environment” the removal of full sick pay is not mentioned. We find that the removal of sick pay was not an act of harassment related to race.[164]Detriment 10 has a number of different aspects. It is: “Her line manager Gurpreet Jagpal and shift manager, Jags Chander being rude and bullying during the disciplinary process. They ignored all her problems and kept repeatedly telling her that she was not cooperative and asked to go back to late shift despite health condition which was supported by GP sicknotes and medical records. Jags Chander ignored the alternative shift timings that the claimant put forward any 4 hours between 6 am to 2pm and labelled her as noncooperative. They sent a letter dated 1 June 2023 accusing the claimant with several allegations, all of which were totally false and increased stress levels.”[165]There is nothing in what we have seen and heard during this hearing that suggest to us that Ms Jagpal or Mr Chander were rude and bullying towards the claimant, so if that is the substance of the allegation it must fail. It is true that both were uncompromising in their view that the claimant must return to the late shift, but there is nothing wrong with that in circumstances where the claimant accepted that she could, as a matter of contract, be required to return to the late shift. The medical condition that was “supported by GP sicknotes” was stress at work, apparently caused by a lawful requirement for the claimant to return to the late shift. It is true that the claimant was described in the invitation letter as not co-operating with the respondent’s requirements, but that was explained by Mr Chander as being a mistake and his explanation of that was not challenged by Mr Khan. This is not race harassment. Victimisation[166]The victimisation claim is in respect of detriment 5. We see no basis for considering that this detriment (which occurred) was caused in any way by the claimant’s grievance of 19 May 2023. Unfair dismissal[167]There remains the question of whether the claimant was fairly dismissed, as to which the claimant raises multiple issues said to render the dismissal unfair, some of which have been discussed above but others of which have not.[168]The first question is, of course, whether the respondent has shown that there the claimant was dismissed for some other substantial reason.[169]The reason given at the time by Mr Chander for the claimant’s dismissal was “I do not believe you have any intention of participating in a meaningful return to work”.[170]There is no doubt in our mind that this is the true reason for the claimant’s dismissal, and that it is capable of amounting to some other substantial reason.[171]The particular circumstances of this case are rather unusual – the claimant had been instructed to return to the night shift, which she accepted as a matter of contract the respondent was entitled to do. As previously noted, the list of issues does not suggest that her dismissal was unfair due to this being a breach of some protocol agreed with the trade union. The respondent was entitled to give this instruction to her. At the meeting that Mr Chander had convened, the claimant made it clear that she would not be returning to the late shift (“JC – so you are saying that you will not be returning to lates? SC – No. I won’t be returning … I won’t be going onto late shift.”). The claimant had submitted sick notes on the basis of stress at work, which contained the unusual proviso “please provide early shift only, to avoid evening shifts as causes anxiety and stress”. Occupational health advice had been sought, which came to the common sense conclusion that “this issue will not have a medical conclusion; the situation is based around work shifts and hours and until this is resolved you will probably not see her return to her employment”.[172]So there was no point in adopting a standard capability approach to the matter: awaiting possible treatment or therapy for the claimant in the hope of a return to work would not assist when she was unambiguously refusing to work the late shift, apparently under any circumstances.[173]Likewise this did not seem to fall readily under the kind of “failure to obey a lawful order” matter that may require a disciplinary process. In this difficult situation the respondent was correct to proceed as it did and to consider this as being “some other substantial reason”. The respondent has demonstrated that that was the reason for the claimant’s dismissal, and in fact this as the reason for dismissal had never seriously been disputed by the claimant.[174]But we must now consider fairness generally. Having a fair reason for dismissal does not mean the dismissal is fair.[175]The burden of proof on the question of fairness, once the reason for dismissal has been established, is neutral, but we will consider the matters raised by the claimant as matters of unfairness.[176]First, there is the question of whether this was the correct procedure. As we have identified above, the circumstances were unusual and did not seem to fall easily within any standard procedure. We see nothing wrong in those circumstances with the respondent adopting the procedure it did.[177]It is true to say that the letter summoning the claimant to the meeting contained incorrect allegations, but on being challenged about that Mr Chander made an immediate correction. It has not been suggested by the claimant how this could have affected the fairness of her dismissal.[178]We do not see anything in what the claimant calls the “staying” of her grievance of 23 June 2023 that affected the fairness of her dismissal.[179]There follow a number of different allegations of unfairness to the effect that the claimant could have been retained in whole or in part on the early shift. As we have previously identified, others remained on the early shift and in one case we were told of had their early shift hours increased. It also appears that there were at least notionally two vacancies on the early shift, although the respondent’s evidence that they were significantly overstaffed on that shift was not challenged by the claimant. The final issue of unfairness relied upon by the claimant relates to what has been termed as “seniority”. In common with a number of matters mentioned during the course of this hearing, the practical or legal effect of “seniority” was not explained to us by either party. It seems to refer to a principle that those with longer service got priority for their preferred role, but no-one had suggested that this went as far as transferring people between shifts in circumstances where that shift was already overstaffed. We acknowledge that the claimant had offered to do one late shift a week. It is not clear how that was compatible with what was otherwise her unwillingness to return to the late shift, but we accept the respondent’s position that one late shift was no good to them in circumstances where they were so overstaffed on the early shift. It is not clear on what basis the claimant says that Lisa Turley did not consider the claimant’s willingness to co-operate, nor is it clear how that would have made the claimant’s dismissal unfair.[180]The position in this case is, we find, rather more straightforward than the claimant or Mr Khan considered it to be. The respondent was entitled to instruct the claimant to return to the late shift, but she refused to do so. Mr Chander was correct to conclude “I do not believe you have any intention of participating in a meaningful return to work”, and he reached that conclusion having both discussed the matter with the claimant and having sought advice from occupational health. The matters the claimant relies on in the list of issues do not make her dismissal unfair. Her dismissal in those circumstances was not unfair.
Conclusion
[181]The claimant’s claims are dismissed. F. THE COSTS APPLICATION[182]As we have already explained, at the conclusion of the hearing Mr Chaudhry revisited an earlier costs application he had made but not pursued. It was based on essentially the same behaviour that we had considered in addressing the respondent’s application to strike out the claimant’s claim. We had previously found that behaviour by Mr Khan complained of to be unreasonable conduct of the claim, but had decided not to strike out the claim. Our decision that the behaviour complained of is unreasonable conduct of the claim stands for the purposes of this costs application.[183]Mr Chaudhry’s costs application is, we find, modest in its scope and in the amount claimed. The total amount claimed is four hours work based on an hourly rate of £160. I covers an hour’s preparation, an hour at the hearing and two hours of general work in relation to the claimant’s 499 page additional disclosure.[184]It is clear to us that in these circumstances we should exercise our discretion to award costs. It will be apparent from our decision on the unreasonable conduct that (while there is no need for a direct link between the unreasonable behaviour and costs incurred) Mr Khan’s unreasonable conduct of the claim has caused the respondent considerable cost, indeed we think the costs his unreasonable conduct of the claim has occasioned will be substantially beyond what is claimed. There is, for instance, no mention in the costs schedule of additional costs and delay caused by the false citations of authority by Mr Khan, nor the fact that Mr Khan did not notify us of his previous unsuccessful attempt to make a similar amendment to the claimant’s claim.[185]There is then the question of whether we take the claimant’s means into account. We were told by Mr Khan that she is not working and has not worked since losing her job with the respondent, though we have no evidence of any wider household income. We find that given the amount claimed and the scope of the unreasonable behaviour we should not in these circumstances make any reduction to the amount of costs on account of the claimants means. The respondent is already, we find, substantially under-compensated in the amount sought, and in such circumstances we will make a costs award in the full amount claimed. Although not discussed during the hearing or identified by the parties on consideration it seems that there is an arithmetical error in the costs schedule submitted. 4 x £160 is £640, not £740, so it is £640 that we will award. Approved by