Ms Y Niazi v Hill Group Services Ltd: 3314919/2020

EMPLOYMENT TRIBUNALS

Case No 3314919/2020

Between

Ms Y NiaziClaimant

Hill Group Services LtdRespondent

Before

Employment Judge Andrew Clarke QC

In person for claimant

Ms Charlotte Goodman (instructed by Counsel) for respondent

Date 3 February 2025

JUDGMENT

The claim for unfair dismissal is dismissed for want of jurisdiction. The claimant lacks the required two years’ continuous service required to bring such a claim.

REASONS

Introduction

[1]There is no dispute that the claimant was employed by the respondent from 24 September 2018 until her dismissal with effect from 28 August 2020. Claims including those for race discrimination arising out of her employment are to be heard over five days in 2022 following and in accordance with detailed directions given by Employment Judge Bedeau.

[2]The claimant also brought a claim for unfair dismissal. However, if her employment began on 24 September 2018, she lacks the necessary two years of continuous employment in order to bring such a claim.

[3]She maintains that the period of her employment by the respondent began some time prior to 28 August 2018 so that she would have the required period of continuous service. This preliminary hearing was established by orders given on 20 June 2021 in order to consider whether the unfair dismissal claim should be struck out for want of jurisdiction.

[4]I have heard evidence from the claimant herself and from the respondent’s head of human resources, Clare Smithson. Both sides also produced a number of helpful documents at the hearing.

[5]From the evidence I have seen and relying particularly on the contemporaneous documents I am satisfied of the following facts.

[6]On 19 July 2018 the claimant commenced full time work at the respondent. She did so via an agency. That agency gave her the particular assignment which she did not understand to have any particular duration.

[7]The agency paid her and was responsible for her tax and National Insurance. She was sent a booking form every week which identified the hours of work for which she should attend the respondent’s premises and instructed her as to the kind of clothes she should wear in order to appear a smart temporary worker assigned by their agency and also instructed her as to the making of claims, on a weekly basis, in order that she should be paid.

[8]Shortly after beginning her engagement with the respondent, she learnt from another worker that the respondent was looking to find someone to do the work she was then undertaking on a permanent and employed basis. In due course she discussed this with her manager. However, during the currency of those discussions, in August 2018 into September of that year, she remained engaged by the agency.

[9]On 8 September 2018 a completed application form was submitted to the respondent containing details of the claimant’s application for a job doing, in effect, the work that she was currently doing as an agency worker.

[10]It is unclear whether that form was filled in by the claimant herself or by her manager on her behalf having spoken to her. The version which I have seen is unsigned. It seems to me likely that her manager had made clear to her his support for her candidacy and he may have gone so far as to say that the job was hers, subject to his obtaining necessary approvals to appoint her.

[11]On 10 and 11 September 2018 the claimant’s manager sought approvals to appoint, first from a director and then from the CEO, in order to engage the claimant as an employee of the respondent. Such approvals were given.

[12]On 13 September 2018 a detailed offer letter, accompanied by terms of employment, was sent by the respondent to the claimant.

[13]On 16 September 2018 the claimant signed a contract of employment and submitted the signature page to the respondent by email.

[14]Sometime thereafter the claimant was sent a P45 by the agency which she submitted to the respondent.

[15]On 24 September 2018 the claimant commenced employment with the respondent, albeit doing the work that she had previously done up to that date when assigned to that work by the agency.

[16]That start date also appears in an invoice from the agency to the respondent for a fee payable to the agency in respect of the engagement of a temporary worker previously supplied by the agency. Although I have not seen the document, I have no doubt that the contract between the agency and the respondent relating to the engagement of the claimant would have contained provisions dealing with what might happen if the respondent chose to engage the claimant as its employee. As the claimant accepted, such terms are routinely found in such contracts.

[17]Towards the end of October 2018, the claimant received her first payslip (and her first payment) from the respondent. She was paid by the respondent for the period from 24 September to the end of that month as well as for the whole of October.

The Law

[18]The law relating to this matter is relatively straightforward. S.94 of the Employment Rights Act 1996 (“the 1996 Act”) gives the right to an employee not to be unfairly dismissed by his, or her, employer. S.230(1) of the 1996 Act defines “employee” as “an individual who has entered into or works under… a contract of employment.”

[19]S.211(1)(a) of the 1996 Act provides that an employee’s period of continuous employment for the purposes of any provision within the Act is (subject to a provision which is irrelevant for present purposes) a period which “begins with the day on which the employee starts work…”.

[20]It is not in dispute here that in order to bring a claim for unfair dismissal an employee needs to have a period of two years’ continuous employment.

[21]Ms Goodman on behalf of the respondent reminded me of a number of authorities relating to the interpretation of s.211(1)(a) of the 1996 Act. In particular she reminded me of what was said in General of the Salvation Army v Dewsbury

[1984] ICR 498

. The EAT held that the reference to a period of continuous employment beginning with the day on which the employee starts work was a reference to the beginning of the employee’s employment under the relevant contract of employment. It did not refer to the day on which the employee first turned up physically to start work, although that might well be the same date. She also referred me to what was said by Judge Auerbach in the EAT in O’Sullivan v DSM Demolition Ltd (

UKEAT/0257/19/VP

). In that case the Employment Tribunal had to consider the claim of an individual who did casual work prior to being put on the payroll. The case re-emphasised the point made in the Salvation Army case to the effect that it is not the beginning of work which is being referred to but the beginning of work under the relevant contract of employment.

[22]The key question here is when did the claimant cease to be engaged by the agency and become employed by the respondent. There is no dispute that she started as an employee of the agency. It is clear that the agency paid her, was responsible for her tax and National Insurance and exercised that degree of control over her that one would expect from an agency supplying a contract worker. She contends that this relationship changed when she had agreed to become an employee of the respondent. However, I do not think that she became an employee of the respondent until 24 September 2018.

[23]That she had indicated a willingness to become an employee of the respondent is not material. The fact that there was an agreement made prior to 24 September that she would enter into a contract of employment effective from that date is immaterial. She did not become an employee (and did not work for the respondent as such) until that date. Up until then she was working for the agency.

[24]Even if her manager told her that the job was hers, subject to approvals, she did not cease to be the agency’s employee from the moment her manager made that statement. That would be so even if what they said to each other amounted to an agreement that she would be employed by the respondent subject to his getting consent to employ her. I am satisfied that, properly understood, all their discussions were subject to the agreement of a contract of employment. That did not take place until later (see above).

[25]In any event, I am not persuaded that there was any such informal and nonbinding agreement made prior to 28 August 2018. The claimant says that there was, but the contemporaneous documents do not support this in my view and given the fallibility of human memories, I prefer to focus on the contemporaneous documents. These suggest that any such informal agreement must have taken place slightly prior to the manager seeking approval to a point on 10 September 2018.

[26]Furthermore, I do not consider that she began to work for the respondent under a contract of employment from the date she signed and returned the contract, namely 16 September. It was an agreement which she worked under only from 24 September. Yet even if I am wrong on that matter, this would not assist her because she would still lack two years’ continuous service if the key date was 16 September.

[27]For those reasons the claim for unfair dismissal cannot proceed further and is dismissed. However, I emphasise that the remaining claims dealt with by the orders of Employment Judge Bedeau do remain to be dealt with at the hearing which he provided for.

[28]At the conclusion of the hearing the claimant asked to extend the date in paragraph 4.2 of the orders made by Employment Judge Bedeau, that is the order relating to her commenting on what documents ought to be included in the bundle. Given the time before the hearing (many months) and the fact that the bundle itself is not to be produced until April 2022 I here record that I extended time under Order 4.2 to 4pm 17 December 2021.

[1]This is a claim brought by a former employee of the Respondent. The Claimant alleged race discrimination during her employment, and in connection with the dismissal. She also alleged victimisation. The Claims & Issues

[2]At a preliminary hearing on 18 August 2021, the Claimant withdrew all and any claims based on the protected characteristic of religion or belief. 1 of 50

[3]The unfair dismissal complaint was struck out by judgment sent to parties on 5 November 2021. (A reconsideration judgment with reasons was supplied to the parties on Day 1 of the hearing.)

[4]At the outset of this final hearing, the Claimant withdrew claims for notice pay and holiday pay, and acknowledged that they would be dismissed on withdrawal.

[5]The remaining complaints, as per the list of issues drawn up on 18 August 2021 were as listed below. Both parties confirmed that they believed the list was still correct. Direct discrimination because of race7.1 Did the respondent treat the claimant less favourably because of race, namely being Asian, in that:7.1.1 Ms Phillips micromanaged the claimant;

7.1.2 Ms Phillips sent to the claimant and offensive email knowing that the claimant was working from home following an injury to her ankle on 9 July 2020;

7.1.3 On 30 July 2020, Mr Simon Ginsburg, Sales Manager, purportedly dismissed because of poor performance and that she could not return to her place of work in Harrow;

7.1.4 Giving a Sales Executive position to a white female with less experience and either no or limited knowledge of the respondent’s procedures;

7.1.5 Not discussing plans with the claimant for her removal from the Harrow site;

7.1.6 Not conducting an adequate and/or proper investigation into the claimant’s grievance;

7.1.7 Not providing the claimant with adequate reasons supported by documentary evidence, for the grievance decision/outcome;

7.1.8 Not dealing adequately and properly with the claimant’s appeal against her dismissal;

7.1.9 failing to provide adequate reasons for the appeal outcome; and

7.1.10 Dismissing the claimant.

7.2 Has the claimant identified an appropriate comparator/s? If not, what are the characteristics of the hypothetical comparator/s relied upon? In not allowing the claimant to continue in her role as a Sales Executive, she will compare her treatment with the white female who, with less experience and knowledge of the respondent’s procedures, was offered a Sales Executive position.

7.3 In relation to the other alleged discriminatory acts, the claimant will rely on a hypothetical comparator, namely a Sales Executive not of the claimant’s race but in all material respects the circumstances are similar.

7.4 If so, has the claimant proved primary facts from which the tribunal could properly and fairly conclude that the difference in treatment is because of the protected characteristic? 2 of 50

7.5 If so, what is the respondent’s explanation? Does it prove a non-discriminatory reason for any proven treatment? The respondent’s case is that the claimant’s performance was an issue which it attempted to address but the claimant failed to achieve the required standards. It had not discriminated against her because of her race or race.

7.6 What is the proper measure of loss flowing from the said acts of discrimination? Victimisation

7.7 Ms Thompson, solicitor on behalf of the respondent, agreed that this claim arises from matters pleaded by the claimant.

7.8 Had the claimant made a protected act by lodging a grievance against Ms Phillips? It is her case that in the grievance she alleged that she had been racially discriminated against by Ms Phillips who wanted her out of the company.

7.9 Were any detriments suffered significantly influenced by the protected act?

7.10 It is the claimant’s case that the lodging of her grievance led to an inadequate investigation and outcome, as well as an inadequate dismissal appeal procedure and outcome. … Time limit 7.14 Whether some of the alleged acts of discrimination are out of time or form a course of conduct? If out of time, whether time should be extended on just and equitable grounds?

[6]In terms of paragraph 7.8, the Respondent accepted in its amended Grounds of Resistance that the grievance was a protected act, and Ms Goodman confirmed that in the hearing.

[7]In terms of paragraph 7.1.2, we sought clarification of which email was being referred to. There was7.1 one at [Bundle 314] timed at 09:34;

7.2 one at [Bundle 137] timed at 11.32;

7.3 one at [Bundle 255] which was duplicate of the last one, but also had a reply from the Claimant;

7.4 one at [Bundle 257] which was duplicate of the 09:34 one (with the Claimant’s reply on [Bundle 256]);

7.5 [Bundle 313] was another duplicate of the 11.32am item.

[8]There were other emails from Sharon Phillips on different dates, and emails from other people on 9 July 2020. We asked the Claimant to clarify exactly which item 3 of 50 she was referring to in her witness statement for the assertion “She sent me an email saying you might as well be off sick. That was very inconsiderate of her and I felt undervalued”. The Claimant was not immediately able to supply the information, so we asked her to look overnight and tell us on Day 2.

[9]The Claimant confirmed that (as the Respondent had anticipated) the person referred to in paragraph 7.1.4 of the list of issues was Megan Blackwood.

[10]During oral evidence, on Day 2, the Claimant stated that paragraph 7.1.2 in the list of issues (and the extract in her witness statement) should be treated as a reference to [Bundle 311], which was an email Ms Phillips sent to the Claimant on 11 July 2020 at 10.10am. The Hearing and the Evidence

[11]We had a bundle of 515 pages. Some additional pages were added and given page numbers during the hearing.

[12]On the Claimant’s side, there were two witnesses: herself and Bina Solanki. Each of them had produced witness statements and gave oral evidence on oath, including answering questions from the other side and the panel.

[13]For the reasons that we gave at the time, we refused the Claimant’s application that we consider a witness statement from Lee Smith and/or hear oral evidence from Lee Smith.

[14]For the reasons that we gave at the time, we granted the Claimant’s application that we take into account the written statement of Ms Fiza Ilyas, even though she was not attending to give evidence on oath and answer questions. As we said at the time, we have given the document such weight as we see fit in those circumstances.

[15]On the Respondent’s side there were four witnesses: Simon Ginsburg; Sharon Phillips; Clare Smithson; Neil Williams. Each of them had produced a written witness statement and each gave oral evidence on oath, including answering questions from the other side and the panel.

[16]During the hearing, a dispute about the authenticity of certain documents (and, in particular, whether the Claimant had signed appraisal documents - as implied by the items in the bundle - arose). We made some disclosure orders, and, on Day 4, we had a discussion with the parties about what we had received. These discussions delayed submissions. We therefore informed the parties that we were reserving our decision, and we released them. The panel deliberated for the remainder of the day, and we made all our decisions that day. 4 of 50

[17]EJ Quill apologises for the length of time that it has taken to send out this document, setting out what we decided on Day 4 of the hearing (7 November 2024). The Law Equality Act 2010 (“EQA”)

[18]The burden of proof provisions are codified in s136 EQA and s136 is applicable to all of the contraventions of the Equality Act which are alleged in these proceedings.(1) This section applies to any proceedings relating to a contravention of this Act.

(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.

(3) But subsection (2) does not apply if A shows that A did not contravene the provision.

[19]It is a two stage approach.19.1 At the first stage, the Tribunal considers whether the Tribunal has found facts - having assessed the totality of the evidence presented by either side and drawn any appropriate factual inferences from that evidence - from which the Tribunal could potentially conclude - in the absence of an adequate explanation - that a contravention has occurred. At this first stage it is not sufficient for the claimant to simply prove that the alleged treatment did occur. There has to be some evidential basis from which the Tribunal could reasonably infer that there was a contravention of the act. The Tribunal can and should look at all the relevant facts and circumstances when considering this part of the burden of proof test.

19.2 If the claimant succeeds at the first stage then that means the burden of proof is shifted to the respondent and the claim is to be upheld unless the respondent proves the contravention did not occur.

[20]In Efobi v Royal Mail

[2021] UKSC 33

, the Supreme Court made clear that the changes to the wording of the burden of proof provision in EQA compared to the wording in earlier legislation do not represent a change in the law. Thus when assessing the evidence in a case and considering the burden of proof provisions, the Tribunal can have regard to the guidance given by the Court of Appeal in, for example, Igen v Wong

[2005] EWCA Civ 142

and Madarassy v Nomura International

[2007] EWCA Civ 33

[21]The burden of proof does not shift simply because, for example, the claimant proves that there was a difference in treatment (in comparison to someone whose 5 of 50 relevant protected characteristics were different) and/or that there was a detriment and/or that there was a protected act. Those things only indicate the possibility of discrimination or victimisation. They are not sufficient in themselves to shift the burden of proof; something more is needed.

[22]It does not necessarily have to be a great deal more and it could in an appropriate case be a non-response from a respondent or an evasive or untruthful answer from an important witness.

[23]As per Essex County Council v Jarrett

[2015] UKEAT 0045/15

/0411, where there are multiple allegations, the Tribunal has to consider each allegation separately when determining whether the burden of proof is shifted in relation to each one. That does not mean that we must ignore the rest of the evidence when considering one particular allegation. It just means that we assess separately, for each allegation, whether the burden of proof shifts or not, taking into account all of the facts which we have found. Time Limits for EQA complaints

[24]In EQA, time limits are covered in s123, which states (in part): (1) Subject to sections 140A and 140B proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it

[25]In applying Section 123(3)(a) of EA 2010, the tribunal must have regard to the guidance in Commissioner of Police of the Metropolis v Hendricks (

[2002] EWCA Civ 1686

;

[2003] ICR 530

); Lyfar v Brighton and Hove University Hospitals Trust

[2006] EWCA Civ 1548

. Applying that guidance, the Court of Appeal has noted that in considering whether separate incidents form part of an act extending over a period, one relevant but not conclusive factor is whether the same or different individuals were involved in those incidents: Aziz v FDA

2010 EWCA Civ 304

. The 6 of 50 tribunal must consider all relevant circumstances and decide whether there was an act extending over a period or else there was a succession of unconnected or isolated specific acts. If it is the latter, time runs from the date when each specific act was committed.

[26]In considering whether it is just and equitable to extend time the Tribunal should have regard to the fact that the time limits are relatively short. That being said, time limits are there for a reason and the default position is to enforce them unless there is a good reason to extend. That does not meant that the lack of a good reason for presenting the claim in time is fatal. On the contrary, the lack of a good reason for presenting the claim in time is just one of the factors which a tribunal can take into account, and it might possibly be outweighed by other factors.

[27]The Tribunal has a broad discretion to extend time when there is a good reason for so doing. Parliament has chosen to give the Employment Tribunal the widest possible discretion. Unlike, say, the Limitation Act 1980, s 123(1) of the Equality Act does not specify any list of factors to which the tribunal is instructed to have regard, and it is wrong to interpret it as if it contains such a list. A tribunal can consider the list of factors specified in s 33(3) of the Limitation Act 1980, but if it does so, should only treat those as a guide, and not as something which restricts its discretion. Definition of Direct Discrimination – section 13 EQA

[28]Direct discrimination is defined in s.13 EQA. (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

[29]There are two questions: whether the respondent has treated the claimant less favourably than it treated others (“the less favourable treatment question”) and whether the respondent has done so because of the protected characteristic (“the reason why question”).

[30]For the less favourable treatment question, the comparison between the treatment of the claimant and the treatment of others can potentially require decisions to be made about whether another person is an actual comparator and/or the circumstances and attributes of a hypothetical comparator.

[31]When considering the “reason why question” for the treatment we have found to have occurred, we must analyse both the conscious and sub-conscious mental processes and motivations of the decision makers which led to the respondent’s various acts, omissions and decisions.

[32]Recent EAT cases have re-emphasised the importance of actually adhering to the two stage approach set out in section 136. We have taken note of the comments 7 of 50 in Field v Steve Pye and Co (KL) Limited and ors

[2022] EAT 68

and of the fact that several subsequent EAT decisions have cited those comments with approval. Victimisation – section 27 EQA

[33]Victimisation definition is in s.27 EQA.(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.

(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.

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

[34]There is an infringement if a claimant is subjected to a detriment and the claimant was subjected to that detriment because of a protected act. The alleged victimiser’s improper motivation could be conscious or it could be unconscious.

[35]A person is subjected to a detriment if they are placed at a disadvantage; there is no need for the claimant to prove that their treatment was less favourable than a comparator’s treatment.

[36]For the Claimant to succeed in a claim of victimisation, we must be satisfied (having taken into account the burden of proof provisions) that the claimant was subjected to the detriment because she did a protected act or because the employer believed that she had done or might do a protected act.

[37]Where there is a detriment and a protected act, then those two things alone are not sufficient for the claimant to succeed. The Tribunal has to consider the reason for the treatment and decide what consciously or otherwise motivated the respondent. That requires identification of which decision makers made the relevant decisions as well as consideration of their mental processes.

[38]The claimant does not have to demonstrate that the protected act was the only reason for the detriment. Furthermore, if the employer has more than one reason for subjecting the Claimant to the detriment, then the claimant does not have to establish that the protected act was the principal reason. The victimisation complaint will succeed if the protected act had a significant influence on the 8 of 50 decision making. An influence can be significant even if it was not of huge importance to the decision maker. A significant influence is one which is more than trivial.

[39]A victimisation complaint might fail where the reason for the detriment was not a protected act itself but something else which (while being in some way connected to the protected act) could properly be treated as separate. See Martin v Devonshires Solicitors

[2010] UKEAT 0086/10

[40]S136 applies and so the initial burden is on the claimant to demonstrate that there are facts from which the Tribunal might conclude that the detriment was because of the protected act.

Findings of Fact

[41]The Respondent builds and sells houses in London and South East England.

[42]The Claimant was employed by the Respondent as a Sales Executive from 24 September 2018 until 28 August 2020, when she was dismissed. Immediately prior to the commencement of employment, the Claimant worked for the Respondent as an agency worker from 19 July 2018 until 24 September 2018.

[43]The Claimant worked at one of Respondent's sites, Echo One. In her role she was required to secure the sale of new homes; to complete sales paperwork; to work within the Respondent's Health and Safety regulations; and to ensure that reports to Head Office were delivered accurately.

[44]Simon Ginsburg was her line manager. As part of his role, he managed a number of new home development sites, including teams of sales executives and external sales agents. He had over 20 years' experience in the industry.

[45]Mr Ginsburg worked with the Claimant at the Echo One site when she was an agency worker. He interviewed her and it was his recommendation that the Respondent should employ the Claimant on a permanent basis. Based on her work during her agency period, he believed that she would perform well in her permanent role.

[46]The Claimant’s contract is at [Bundle 66]. An “Equal Opportunities Form” is at [Bundle 74] as completed by the Claimant. It was the Respondent’s practice to request new employees to complete this type of form (a blank is at [Bundle 191]), and we will discuss the statistical information [Bundle 191 to 194] which the Respondent provided to the hearing in due course.

[47]Echo One was a small sales office in Harrow. 9 of 5047.1 At most, there were two sales staff. As discussed below, the Claimant was told at the dismissal meeting that the Respondent had decided to have just one person there.

47.2 Bina Solanki was working there when the Claimant joined. Ms Solanki worked for the Respondent from around March to November 2018.

47.3 In around June 2019, Ms Fiza Ilyas began working at Echo One, and was still working there by the date on which the Claimant was dismissed.

47.4 For part of the time, between Ms Solanki leaving and Ms Ilyas joining, an employee named Adam worked at Echo One alongside the Claimant.

[48]During the Claimant’s probation period, Mr Ginsburg met the Claimant on 29 October 2018 and sent an email to report what he had said in the meeting [Bundle 75]. He said that it was “disappointing” that she had had sick leave and compassionate leave. He said there were tasks that had not been carried out.

[49]There was a “mystery shopper” at Echo One in November 2018, and Mr Ginsburg was not satisfied with the outcome.

[50]On 21 December 2018, Mr Ginsburg decided that the Claimant had not passed the probation period (scheduled to last 3 months) and that probation would be extended [Bundle 79]. In a form signed by the Claimant, he wrote: The employee’s probation period is to be extended to (date): 23/03/18 The performance improvement required in the period is: - Sales activity has been slow on this site and whilst not a fault of Yasmin’s, she is aware of the need to help turn this around - We have discussed the fact that the JV partner need to review the site in Q1 of 2019 and this includes pricing as well as marketing and staffing and for this reason it was agreed that we would extend the probation period until we have clarity on the situation

[51]On 12 March 2019, the Claimant passed probation. In a form signed by the Claimant, Mr Ginsburg wrote [Bundle 80]: Whilst Yasmin’s initial probation period was extended by a further 3 months, she has demonstrated her abilities and improved in her performance above expectations. Whilst there are still areas to work on, Yasmin is a credit to the team and I am pleased she has shown such commitment and willingness in the last few months.

[52]In summary then, as of December 2018, it was not poor performance by the Claimant specifically that was the reason for extending probation, but rather poor performance of the site. In any event, as of March 2019, Mr Ginsburg was satisfied with the Claimant’s performance. 10 of 50

[53]He was still satisfied with it as of the performance review, around 13 May 2019, where he wrote: Yasmin has proven herself to be a very valuable member of the team at Echo One since joining us. She has had a changeover of staff alongside her which has made things a bit difficult and I recognise this however she has worked extremely hard, sometimes coming in on days off in order to close sales which shows her commitment. She does need to manage her time better as she sometime struggles to fulfil her responsibilities in a normal working day and is something we will work on. Keep up the good work Yasmin and hopefully we can get Echo One to continue selling at its current rate in order to make up for lost time!

[54]Although it is disputed, we find that, in November 2019, he also made the manager comments in the mid-year review documents shown in the bundle between pages 96 and 100 (and duplicated several times). We discuss our reasons for this finding in more detail below.

[55]In January 2020, Mr Ginsburg sent an email to the Claimant and Ms Ilyas that made some criticisms of their performance, and gave specific details. The email was sent to one email address only “Hello From Echo1”. This was a joint email inbox to which Ms Ilyas and the Claimant each had access. The Respondent also supplied them with email addresses in their own names.

[56]Mr Ginsburg’s tendency was to use this email address when he was seeking to address site performance, regardless of whether he thought the issue was mainly the responsibility of just one of Ms Ilyas / the Claimant. He also sometimes used that address when communicating something specifically to one of them.56.1 So an email to “Hello From Echo1” might start with a salutation “Fiza / Yasmin” (as on [Bundle 103]), or just “Yasmin” (as on [Bundle 110]), or have no salutation at all (as on [Bundle 104]).

56.2 We are satisfied that, during employment, it was clear to the Claimant that, if Mr Ginsburg did not specifically start the email with “Fiza”, then the email was intended for her, the Claimant’s, attention (as well as Fiza’s, unless he specifically started the email with “Yasmin”).

56.3 Mr Ginsburg did sometimes write to the individual email addresses as well. However, we do not accept that the Claimant genuinely believed that only emails sent to her individual address were potentially commenting on things that she, the Claimant, needed to do.

[57]On 14 January 2020, sent an email to the Claimant and Ms Ilyas. It contained some criticisms and action points. Some points expressly referred to the Claimant; some named both of them; and some did not name either of them, but, in context, 11 of 50 were points for both of them to take note of. The email stated that Mr Ginsburg had set objectives for both of them, and concluded: Reduce the new tasks to 0 by COB (post meeting follow up – just 2 remain now live) Reduce the 757 overdue tasks by making a minimum of 35 calls per person per day They only had 3 new visitors last week and footfall is very low. If they are not dealing with customers and have only 5 sales to progress to exchange they need to spend 90% of their time working the database to find new interest. We will continue to review these matters on a weekly basis.

[58]The Claimant sent an update to Mr Ginsburg on 27 January, referring to having met him that morning. She sent it from her own email address, and copied in “Hello From Echo1”. Mr Ginsburg forwarded it to his line manager, Tony Woodman, Sales Director, and Mr Woodman and Mr Ginsburg exchanged comments about Echo One, and the staff there. Mr Woodman wrote: Please keep the pressure on as my gut feel still is the sales team are not 100% all over everything You keep have to keep asking them to do Contact Builder, and that by now should be a given for any sales person

[59]The Respondent calls its customer database and software “Contact Builder”.59.1 When a potential customer registers by phone or email or, when they have visited one of its sites, the Respondent uploads their details onto Contact Builder.

59.2 Follow up "tasks" are assigned for that customer such as a reminder to contact them after their visit to see if they have any further questions or would like to come for a second visit or make an offer.

59.3 “Re-trawling” is jargon the Respondent uses to refer this follow up process.

59.4 We are satisfied that managers, including Mr Ginsburg and Mr Woodman and Sharon Phillips regarded effective use of Contact Builder, and of “retrawling” in particular, as being of very high importance to their efforts to achieve sales.

[60]On 17 February 2020, Mr Ginsburg sent an email [Bundle 110]. It commenced: Yet again I have to have another conversation with you to criticise when I know you are trying hard to get a deal done but the below is not acceptable and this is the absolute final warning. 12 of 50 If you are not able to carry out basic requirements like keeping the database up to date when you have no more than 4 visitors a week I am afraid we are going to have to review things more seriously. I cannot keep defending this as it just suggests to me the reason we are losing so many opportunities is because we are not staying in touch with customers. Please can you give me some reasons why the below were no done?

[61]The email then went on to make specific comments/questions about specific properties and customers. It included one comment (in red): “Not on Contact Builder – Why not? He has made a bloody offer!!! NOT ACCEPTABLE”.

[62]The email was sent only to Hello From Echo1. However, we are sure that it was intended for the Claimant specifically, and that the Claimant knew that. In terms of any issues about privacy and confidentiality, it might be thought that this is an email which might have been more sensibly sent to the Claimant’s individual address, rather than the joint inbox. However, it is not plausible, and we reject, any argument that the Claimant did not realise that these specific comments were criticising her individual performance, rather than being general remarks about Echo One’s performance.

[63]At the time, the Claimant did not write back, either to supply any explanations, or to state that the issues were Ms Ilyas’s fault not hers, or at all.

[64]In March 2020, the Covid pandemic became a serious issue in the UK, and the first government “lockdowns” were announced.

[65]Clare Smithson was, at all relevant times, employed by the Respondent as Group Head of HR. In April 2020, Mr Ginsburg received a video about vaccines / Coronavirus. It was sent by the Claimant and he sought Ms Smithson’s advice on 14 April. On 16 April, he wrote to the Claimant, copying in Ms Smithson [Bundle 117]: Further to the video you sent me on WhatsApp this week, please can I remind you that work phones are intended for work use only. Any inappropriate use of your work mobile is not acceptable and you should not do it again, even if by accident.

[66]The Claimant apologised, and stated that it had been sent (by accident and) from her personal phone. Mr Ginsburg replied stating that it had been sent to his work phone [Bundle 329].

[67]On 20 April 2020, the Claimant was placed on furlough leave because of Covid. All the Respondent's offices closed. We have not seen any formal documentation about the arrangements / agreement. We accept the Claimant’s account of the period, namely: I was also on holiday through [March] 2020. 13 of 50 [In] April 2020, I had to cut my holiday short by a few days as my colleague Fiza Ilyas was put on furlough and I had to cut my holiday short and go back to work and manage the development working from home. At the end of April, I was put on furlough and handed the site over to Thurisa who was a new employee for the respondent. I met Thurisa on site at Echo One and handed over to her before going off on furlough for approximately 6 weeks.

[68]In due course, Ms Ilyas came off furlough, and resumed working at Echo One, while the Claimant remained on furlough.

[69]The Claimant’s reference to “Thurisa” is to Thurisa “Terri” Reddy who had started working at Fish island Village (“FIV”) by the time the Claimant came back off furlough. We do not know the date on which Ms Reddy went to FIV and on which Ms Ilyas returned to Echo One from furlough. The Respondent has not satisfied us that it proactively engaged with the Claimant and asked her if she preferred to be on furlough, or preferred to be back working at Echo One. The Claimant has not satisfied us that she sought to persuade the Respondent to bring her back off furlough any earlier than it did.

[70]At 05.56 on Friday 19 June 2020, Mr Ginsburg emailed the Claimant [Bundle 119], stating: Are you able to return to work this weekend as I would need you to go to Fish island on Saturday and Sunday and then be based at Echo One next week (working for both sites) as Fiza is on annual leave? Please can you come back to me by midday.

[71]At 10.20, the Claimant replied to say: Thanks for your email, as discussed I am able to return to work, but I assumed I would be given a bit more notice to return, the thing is that I have committed myself to doing some charity work with Age UK while I’ve been on furlough since April and I agreed to support them until further notice with the arrangement of giving them at least one week notice if my work circumstances changed, I have spoken to them this morning and they understand that I need to return to work but have asked me to support them until the end of this month or at least until 26th June. I have told them that I will have to discuss with my manager to see how we can accommodate. Is there any chance I can return to work on 27th June, this will give them a bit of time to find a replacement for me.

[72]Mr Ginsburg said “no” to this request, and asked the Claimant to confirm that she would attend the Respondent’s site, Fish Island Village, the following day.

[73]Following a telephone call, he agreed the Claimant did not have to work the very next day, the Saturday. He emailed the Claimant with instructions for the Sunday 14 of 50 [Bundle 120]. He copied in Sharon Phillips, who was a Senior Sales Executive at the Fish Island Village site (FIV). He also copied in Ms Ilyas and some others. The email stated: As discussed, we are pleased you are returning to work on Sunday 21st June 2020 – please can you go to Fish Island Village for the day so you can be briefed by Sharon on Covid procedures and the scheme you will need to be retrawling on for the next couple of weeks. Sharon’s number is XXXXXXXXXX – parking is free around the development on Sunday’s – please ensure you are there for 9.45am. From Monday, please base yourself at Echo One as Fiza will be on leave and I have left it with Fiza to arrange a handover with you this weekend. You will need to focus on the following: 1. Fish Island Village retrawling – I don’t expect you to discuss the scheme in detail but make at least 40 calls a day to the database and any hot leads you get please pass on to Sharon and Teri on the [hello@fishislandvillage] email address 2. You will also need to retrawl Echo One on a daily basis making the same number of calls as a minimum – Rebecca our new Sales Director reviews this with us on a weekly basis and everyone is making a large number of calls to book appointments in 3. You will need to progress the sales Fiza has at Echo One (53, 78, 97, 116) and copy in Erika and myself to updates 4. There is a new weekly report which Fiza will need to discuss with you to complete next Sunday 28th June 5. Viewings are by appointment only and limited to one per hour under new Covid procedures – have you watched the training videos sent to all staff? If not you need to do this asap. [website address] 6. Fiza – the attached needs to be reviewed and completed for Yasmin’s situation – please can you both do this by tomorrow and send back to me? 7. Fiza – are there any viewings booked for next week? 8. Fiza – you need to show Yasmin how the virtual tours work – please confirm when this is done. Any questions please ask!

[74]In other words, the Claimant’s duties on Sunday 21 June were at FIV. From Monday 22 June, she was to be at Echo One. That week, she was to carry out the normal tasks that needed to be done at Echo One. Additionally, she was, as per paragraphs 1 and 2 of the email, she was to “retrawl” Contact Builder, and to do so for each of FIV and Echo One. 15 of 50

[75]Within the 40 calls (for each site, so 80 in total), there would typically be several very short ones. This might be to leave a voicemail where there was no answer, to mark that the customer wished to be removed from the database, or that the phone number was wrong, or out of date. Others would be more lengthy. The Respondent’s intention was that the person making the call would be friendly and enthusiastic, and seek to persuade the customer to book a viewing.

[76]At 10.44am on Friday 26 June, Ms Phillips emailed Mr Ginsburg [Bundle 122]. Attached to the email were some screenshots. The accusation made in the email was that the Claimant was not actually performing all the calls. Rather, in some cases, she was making a change so that the Respondent’s staff would, in the future, get a reminder to try to contact the customer, but without the Claimant having done so. Ms Phillips suggested: At least 15 people on today’s re trawl list are from edited customers whose date has been forwarded, the person not contacted. I did over 20 calls yesterday and left 40 for Echo One. I kept watch and made notes, 25 people disappeared from the list in a 45 minute slot which is impossible to do. The last 15 people went over another 45 mins. She probably called a few but definitely not all as I made a list of some of the names.

[77]Two days later, Sunday 28 June 2020, Ms Phillips and the Claimant exchanged emails [Bundle 128-127].77.1 At 17:04, the Claimant stated: it's been a crazy week at Echo One so Ive not been able to do as much as I would of liked. But as of tomorrow will be able to put full energy in as Fiza returns to work.

77.2 At 17:18, Ms Phillips acknowledged and thanked the Claimant.

77.3 At 17:26, the Claimant wrote: Apologies for not really doing as much as I could of done this week, earlier this week I had to end up editing some tasks for future, but will be able to get on top of it this week.

[78]The Claimant relies on the latter email to demonstrate that there had been no intention of misleading anyone, or of shirking the work and leaving it for someone else to do. She suggests that, when she sent this at 17:26, no-one had told her that it had already been spotted that she was doing this “editing” on Contact Builder.

[79]Mr Ginsburg did speak to her about the issue Ms Phillips raised in her 26 June email. His email at 18:07 on Sunday 28 June stated: Please do a handover to Fiza tomorrow at Echo One and then as discussed go to Fish Island from Thursday to work alongside Sharon and Teri. 16 of 50 We have spoken about your supposed retrawling which has not been done and you have been moving dates along on contact builder with no attempt to call clients which is not acceptable. I am going to need to review this in more detail but you have to report to Sharon on a daily basis as this is being closely monitored.

[80]Our finding, on balance of probabilities, is that Mr Ginsburg had spoken to the Claimant about the matter before she sent her 17:26 email that day. Our finding is that that is why she offered “apologies” and said she would do more the following week than she had done that week. However, in any event, at the time he spoke to her, and the time he sent his email, it was Mr Ginsburg’s opinion that the Claimant had (i) not been carrying out the FIV work which he had instructed her to do, and which Ms Phillips had identified for her and (iii) was making changes to Contact Builder to disguise the fact that she had not done the work.

[81]The Claimant did work for FIV from Thursday 2 July 2020 to Saturday 4 July 2020. Ms Phillips expected her to return to the FIV site the following Thursday (9 July 2020) [Bundle 132]. Ms Phillips’ expectation was that the Claimant would work on site at FIV some of the time and from home some of the time. For days when she was on-site at FIV, Ms Phillips had told the Claimant that her working hours were 10.00- 17.30 with an hour for lunch.

[82]The Claimant did not wish to work permanently at FIV. There were no detailed discussions about it, but the Claimant’s assumptions were that having just one person at Echo One was a temporary Covid measure, and she would return there in due course. Likewise, her opinion was that FIV was only temporarily shortstaffed, and when that situation changed, she would be released from the obligation to work there. It was a much longer commute for her than to Echo One.

[83]On 2 July 2020, Mr Ginsburg authorised the hiring of Megan Blackwood, via a temp agency, to work at FIV. It was envisaged that she might be taken on as an employee in due course. That did in fact happen. As per paragraph 10 of Ms Phillips’ witness statement, the Respondent does not dispute that the description “white British” could be applied to Ms Blackwood. It does dispute that she lacked appropriate experience.

[84]On Friday 3 July, at 12:35, Ms Phillips emailed the Claimant to say that it did not appear that the Claimant had done any work on Contact Builder (at least for FIV contacts) so far that day.

[85]On Monday 6 July, Mr Ginsburg asked Ms Phillips if the Claimant was at the FIV site. Ms Phillips’ replied to state that the Claimant was not on site that day, and also to ask if the Claimant was doing Echo One work in the mornings, because - according to Ms Phillips – she did not seem to start on FIV work until the afternoon. Following this exchange, at 13:08, Mr Ginsburg instructed the Claimant to attend 17 of 50 the FIV site every working day until further notice. That is, she was not to work from home, and she was not to work at Echo One: [Bundle 133].

[86]On the morning of Thursday 9 July 2020 (at around 9.29am UK time), the Claimant wrote to Mr Ginsburg to say that she would work from home because she had a sprained ankle. The Claimant also wrote to Hello@FIV at 9.25am with the same information. Ms Phillips replied at 9.34am to say that the Claimant would have to attend FIV the following week because, on the Thursday and Friday, Ms Phillips and her colleague (Teri) would both be away from the office. The Claimant stated that she provide that cover [Bundle 256].

[87]Mr Ginsburg emailed a reply to the Claimant (at 10.13am UK time) to say he would need a doctor’s note [Bundle 135]. He also emailed Ms Phillips to say she should keep an eye on it, forwarding the email from the Claimant [Bundle 134].

[88]At 11.32am, Ms Phillips emailed the Claimant stating that it appeared that the Claimant had not yet started on Contact Builder, and asking when she would do so. In the afternoon, the Claimant replied: the tasks had come down from 73 to 20, and the Claimant said she would complete those and update Ms Phillips. Later they had come down to 10 [Bundle 253].

[89]At 14:10 on Friday 10 July [Bundle 312], Ms Phillips emailed the Claimant (copying in Mr Ginsburg) to state: Hello Yasmin I hope your ankle has improved. Would you please work from the Marketing Suite at FIV this weekend. I will let you into the car park on Saturday and you will be able to park on the outside road on Sunday. Thanks and see you tomorrow.

[90]At 17:40, the Claimant replied [Bundle 311] to state: Good evening Ladies, Hope you're well, Just dropping you a line to let you know that I've completed 40 CB tasks today. I will continue to work from home for now with my swollen ankle, I hope it gets better soon, will keep you updated. Have a great weekend.

[91]This was after Ms Phillips had left for the day. At 10:10 on Saturday 11 July, Ms Phillips wrote to the Claimant, copying in Mr Ginsburg as follows. “CB” refers to Contact Builder: Thank you for doing CB yesterday. 18 of 50 I sent you an email yesterday saying that I needed you in the office this weekend as there is so much work to do. I would have preferred that you came back to me from that email and within working hours so I know you were turning up or not. While contact builder for FIV is only taking you a few hours a day, there are other things that need doing here. Are you also doing CB at Echo One and if so, how long is that taking you? Can you please let me know how many hours you can work on FIV bits today and if you will be able to come into work tomorrow. If you can't get here then maybe you need to go off sick?

[92]Later the same day, at 12:01, Mr Ginsburg wrote: “Yasmin please call me back ASAP and chan (sic) your voicemail today!”

[93]On Sunday 12 July, Ms Phillips wrote to the Claimant: I hope your ankle is getting better. Thanks for what you did yesterday. I noticed this morning that there wasn’t a lot of re-trawling only a couple of hours worth, have you finished it yet? Can you please let me know when it is done? Thanks

[94]The Claimant replied stating that she had done about 40 tasks so far that day, and would update Ms Phillips later. Later, at 16:45 [Bundle 308], the Claimant sent a breakdown of the work she had done between Monday 6 and Sunday 12 July 2020 (with Tuesday and Wednesday being non-working days).

[95]Meanwhile, Mr Ginsburg and Ms Phillips exchanged emails:95.1 At 14:39, Ms Phillips, in response to a query from Mr Ginsburg, wrote: While she started at about 10am, there was only a couple of hours worth of work and looking at what is left, that will take her an hour. She actually sent an email to a spam registration. Shows she isn’t reading what the notes say. There is no way I would have her working here. Sorry but she is lazy, not proactive and I feel she is taking the pee with the “sprained ankle”. Have you seen a doctors note? She can’t just decide that she is “working from home”. Will let you know when she comes back and says she has finished.

95.2 At 14:45 [Bundle 139], Ms Phillips forwarded an email from the Claimant to Mr Ginsburg with comments which made plain that Ms Phillips’s opinion was that the Claimant had not done much work in comparison to the time that she had had to do it in.

95.3 Mr Ginsburg asked to be kept updated, and said he was going to speak to Ms Smithson the following day.

[96]The following day, 13 July at 12:45, Ms Phillips emailed to ask if the Claimant was working on Contact Builder [Bundle 309]. The Claimant emailed at 17:46 to say 19 of 50 that contact builder was now up to date, barring 4 items which – for the reasons she explained – she had left for the FIV team to do

[97]On 13 July, at around 3pm, Mr Ginsburg emailed the Claimant to ask if she was able to drive [Bundle 143, and 310]. This was probably after he had spoken to Ms Smithson.

[98]The Claimant replied at 17:27 to say she had a doctor’s appointment the next day and would confirm whether she could drive after that. At 18:20 [Bundle 142], he wrote: Thank you – I really need you go to Fish this week on Thursday as we are incredibly short staffed and need you there.

[99]On that following day,14 July 2020, Mr Ginsburg chased for news. He asked the Claimant] what time her appointment was [Bundle 145]. The Claimant did not reply until the day after that, 15 July. She said she would be signed off for 2 weeks and would forward the note. The note was dated 15 July 2020 [Bundle 147]. The Claimant was signed off, and it was not suggested that she could work with adjustments. The reason given was “sprain of ankle”.

[100]On 24 July 2020, Mr Ginsburg emailed Ms Smithson with subject line “Yasmin” [Bundle 148]. The email stated: As discussed I want to terminate Yasmin's contract when she returns from sick leave - her sick note ends 29th July and she is therefore due to return on 30th. Her start date is 24th September so I need to ensure this is done asap and plan to do it on 30th July with a month notice ending 30th August.

[101]Both the fact that no surname is mentioned, and the words “as discussed” show that Mr Ginsburg had spoken to Ms Smithson previously. We are satisfied that they spoke on 13 July. There was a lot of correspondence between Mr Ginsburg and Ms Phillips about the Claimant, and he told Ms Phillips that he was going to speak to Ms Smithson on 13 July, and we are sure he did so.

[102]It is less certain whether that was the only discussion they had (about the Claimant) after the end of furlough and prior to the 24 July email. If it was the only discussion, then that implies that, on 13 July, Mr Ginsburg told Ms Smithson that he had already decided to dismiss the Claimant.

[103]We think it more likely that there was at least one more discussion after 13 July and before the 24 July email. This is because Ms Smithson’s reply, on 26 July 2020, was: On what basis are you letting her go and can you evidence it? Happy to discuss tomorrow 20 of 50

[104]It seems to us that she would have asked those questions sooner, if she had been told as early as 13 July that Mr Ginsburg intended to dismiss the Claimant.

[105]Rather, as per paragraph 40 of Mr Ginsburg statement, there was a further conversation on 24 July 2020, after Mr Ginsburg had seen the Claimant’s GP Fit Note, and was aware it was terminating on 29 July 2020. In the oral conversation, he stated that he wished to terminate the Claimant’s employment straight away on her return from sickness absence, and he was referencing that conversation in the email.

[106]They spoke again after Ms Smithson’s email. On 27 July, the Claimant emailed Mr Ginsburg about returning to work. She stated that her ankle had been fractured (as well as sprained) and she could not drive long distances. Mr Ginsburg replied to say that he wanted to meet up on the Claimant’s return to work, and invited her to suggest a location for “Thursday” (so, for 30 July 2020), and said that, if there was no suitable location, they could meet by video. [Bundle 151].

[107]The following day, the Claimant suggested two possible locations, and Mr Ginsburg chose one of them; it was a branch of a coffee shop chain, Costa.

[108]They met at that location, and Mr Ginsburg informed the Claimant that her employment was terminated.

[109]Later that day, at 18:19, Mr Ginsburg emailed Ms Smithson to confirm that he had dismissed the Claimant [Bundle 152]. On reading the email, Ms Smithson was satisfied that it was consistent with what she and Mr Ginsburg had discussed in their conversations prior to his meeting with the Claimant.

[110]The Claimant was supplied with a letter bearing the date 30 July 2020 [Bundle 153]. It matched the termination details which has been supplied to her orally, which were that her last day of employment would be 28 August 2020, and she would be paid up to that date, but she was not required to attend work between 30 July and the termination date. The letter also informed her that she had 7 days to appeal, by writing to Neil Williams, Group Finance Director.

[111]The Claimant received the termination letter on around 5 August 2020; the following day she wrote to the Respondent (to Ms Smithson, coped to Mr Williams) to acknowledge receipt of the letter, express and intention to appeal, and to request a written explanation of how her performance was allegedly inadequate. The letter made no comments about Echo One or future staffing levels.

[112]On 7 August 2020 [Bundle 280], Ms Smithson replied by forwarding to the Claimant the email which she, Ms Smithson, had received from Mr Ginsburg after the termination meeting. That note included Mr Ginsburg’s reference to having told the Claimant that Echo One would be a single person site. Ms Smithson also 21 of 50 appended an extract from the Claimant’s mid-year review, in November 2019 in which, on the Respondent’s case, Mr Ginsburg had written: I think Yasmin still has a lot to do on delivering the H&S processes and needs to review the requirements in terms of monthly office checks etc.

[113]On 12 August 2020, the Claimant appealed within the 7 day time period. Her grounds of appeal is [Bundle 157 to 162] and the covering email is [Bundle 331].

[114]The appeal included the following comments.114.1 In relation to the mid-year review: As far as the above appraisal from November 11th 2019 is concerned, no meeting took place with my manager, the form was emailed to me to complete and return via email, please find attached proof of this I the attached documents pages 5-14 (attached- Appeal Docs 1) I was just asked to make my comments, self-score and email back. I did not hear anything after that, and I did not sign the appraisal form from November 2019 as I expected I would get an email back with my managers scores and comments, but that did not happen. As you can see pages 1-4 (attachedAppraisal Docs 1) I have completed my H&S monthly checks on site on a monthly basis as expected from me so there is no reason that should be used as reason to terminate me , besides that I would consider this appraisal from Nov 19 as null and void as I did not have this meeting with my line manager and nothing was discussed, basically no appraisal took place.

114.2 In relation to Echo One staffing levels, and availability of work generally, she wrote: Echo One has been selling well at which is great, and somehow there has been a decision made to make it a lone worker site and apparently there is nowhere for me to go in the immediate future. I was told last year that I would be going to Harrow One which has recently launched and is being managed by JLL, so my question is why could I have not been placed there? My other question is why was I not put back on the furlough scheme? Would a company that I have given my sweat and blood for, disregard me just like that and take away my livelihood? Only to find out that a new sales negotiator has been appointed, which again shows discrimination. Why is a company going to terminate a member of staff who has been loyal for 2 continuous years by telling them there is nowhere for them to go then take on a new sales negotiator and create a role for them. I am hurt and disappointed to say the least. I feel victimised and unfairly treated. The company talks about diversity and equality, yet 80% of its staff are white and the company employs 0.75% from my background, and I can confirm that the new sales negotiator is from a white background. So, it seems ethnic diversity is just a fancy word that sounds good but really has very little meaning in this case. I was asked to come back from furlough and started work on 21st June 2020, I was asked if I could temporarily help another site (Fish Island - Hackney) with retrawling leads whilst one of the staff was off sick. This development was 17 -20 miles away 22 of 50 from my home but to help the company I agreed to return to work and help them out with their retrawling. I was told this was a temporary thing and I would be returning to my site (Echo One) If for any reason the business decided that they feel a lone worker can manage the development on their own at Echo One then I’d like to know when this was decided, and if a role was being made redundant then why wasn’t there a redundancy procedure followed. Why was I terminated under false pretences?

114.3 In relation to her duties at FIV, she wrote (and we accept that this is an accurate reflection of what she believed had initially been discussed and agreed with Ms Phillips): I worked with Sharon Philips who is a senior sales negotiator and Terri Reddy who is quite new to the company and is based at Fish Island with Sharon on a full-time basis. I was initially asked to work 2 days on site and 3 days from home whilst helping the team at Fish Island, although this development was quite far for me I was happy to help out and agreed to do the long drive which usually took me over an hour in the morning and about 1 hour and 20 mins to drive home. I was only to help the team with their retrawling and not get involved in the sales side of things.

114.4 Over the next 3 paragraphs immediately following the one quoted above, the Claimant made various comments and criticisms of the way she was treated by Ms Phillips. In those paragraphs, she made no express (and, we find, no implied) suggestion that any of the treatment was because of race. The remarks included: I am not used to being micro managed by a colleague AND she claims to be too busy to do her job, yet she has time to sit there and question my work AND Sharon continued to question everything I did which was very disturbing as she had no right to do that AND I have never worked with Sharon Phillips before and I would not wish to work with her again AND … she thinks she has the right to bully people and treat them like her slaves. She is very good at delegating tasks but I have not seen her do anything but give orders. I understand her title is Senior Sales Executive and if anything, she should be setting an example not playing Cruella Deville. When I’ve been in the office she has literally 23 of 50 been sitting there while Terri has her head down and is probably doing a large majority of the daily tasks AND she boasts about her personal equation with Greg Hill and people have the perception that if she wants something, she runs to Greg Hill AND In the 2 years I have been with Hill I have heard of about 3 to 4 cases whereby people have been terminated or have left because they cannot work with her. AND I believe this kind of treatment goes against the company’s harassment and bullying policy in the workplace as this experience has left me feeling threatened, humiliated and harassed and left me demotivated and undermined and created an intimidating work environment for me. I felt Sharon misuses her power and position by persistently criticising others, AND I can only imagine what she’d say about me if she can badmouth someone she has not even met who is essentially the head of Sales and Marketing and essentially her boss, what would she say about a person like me.

114.5 She summarised the letter by stating: My termination was unfair, not only because the reasons given for my termination were invalid, unchecked and out of date for even a disciplinary never mind termination. but also, because proper company procedures were not followed to end my employment. For example, no one from HR was present at the meeting, and the 3 stages of the disciplinary procedure were not followed according to company policy. I was not given an opportunity to defend my stand until now, which is after I have been terminated and not during my employment, again unfair. I honestly see this as an unfair dismissal and discrimination. I have been discriminated against and have not been treated equally to other staff because of the way I was terminated, and partly because I believe that Sharon Phillips had a part to play in my dismissal. Which again proves that I have been unfairly treated and discriminated against, this again goes against duty of care as well the company social responsibility policy. In my case I believe that the company have failed to follow their own equal opportunities and diversity policy and management have not taken the responsibility to make sure the policy was implemented with the following strategies that have been put in place: i) fair and just disciplinary, grievance and disputes procedures 24 of 50 ii) valuing employees as individuals whose differences are accepted, respected, understood and utilised to contribute to the overall company goals. iii) safeguarding an employee’s dignity by ensuring their workplace environment is not threatening, offensive or intimidating. I have spoken with ACAS and they have advised me that this is a strong case for unfair dismissal and discrimination, but have advised that I first reach out to Hill to try to resolve it amicably before considering the next steps with Employment Tribunal. … But unfortunately, this sure is a big step backwards in the effort to promote, grow and practice diversity in the workplace at Hill.

[115]Within the body of the document, at the end of the three paragraphs which commented specifically on Ms Phillips, the Claimant wrote: I feel she has a role to play in my termination and I am formally raising a grievance and would like this matter investigated.

[116]Ms Smithson and Mr Williams state, and we accept that, they noted that the letter was a grievance, as well as an appeal against dismissal. They decided that the matters were interlinked and so that a single investigation and outcome process should be used for both. Mr Williams asked Ms Smithson to investigate.

[117]On 19 August 2020, Ms Smithson spoke to Ms Phillips and made notes of her answers [Bundle 163].

[118]By email, Ms Smithson sought Mr Ginsburg’s responses to the points in the Claimant’s 12 August letter, and received an email response on 28 August 2020 [Bundle 165]. Apart from other responses, and comments on the Claimant’s performance, his email included the following. (In paragraph 11, he wrote “not” but it is clear that this was a typo and he was referring to a file note): 6. Yasmin did not complete the H&S forms as required on a regular basis but this is not the reason for our decision on her employment on its own 7. I did Yasmin’s appraisal by phone and only sent the form as a follow up to complete but we either met in person or did on phone 8. I have told Yasmin on numerous occasions it is unacceptable to progress a sale without taking a reservation fee as she had done 9. Yasmin was never told she would be going to Harrow One that is completely untrue and we never discussed that even being an option 10. Yasmin comments a new sales negotiator has been taken on – again this is untrue as Fiza is working on her own at Echo One 11. Sharon’s file [note] show Yasmin did not carry out the duties expected of her at FIV 25 of 50 12. Given this was her only priority, it should be easy for someone to make 40 phone calls a day but we saw that Yasmin was simply manipulating the database to move contact dates along rather than making phone calls – when she was challenged on this she admitted it was true she had done it

[119]On 1 September 2020, at 8.51am, Ms Smithson sent an email to Mr Williams summarising the investigation to date, and her recommendations. [Bundle 169 to 171].

[120]Later on 1 September 2020, Ms Smithson interviewed Ms Reddy. [Bundle 174]. On 2 September 2020, Ms Smithson emailed Mr Williams to report what Ms Reddy had said. [Bundle 168].

[121]The evidence available does not show Ms Smithson directly asking Ms Phillips or Mr Ginsburg to respond to any questions about discrimination. The note of the 1 September 2020 discussion with Ms Reddy (dated 9 September 2020) shows that Ms Reddy was asked some questions, and had not seen anything that she regarded as discrimination, either to the Claimant or to herself.

[122]Ms Smithson’s recommendations to Mr Williams included: 2. Discrimination – not treated equally and allegations that Sharon Phillips had a part to play in her dismissal. I think you can say here that the decision to let her go was Simon’s alone in consultation with HR and the Group Sales & Marketing Director. However, you did ask me as Group Head of HR to carry out an investigation into the grievance around the allegations made against Sharon Phillips. … [summarises various fact finding points] … I do not believe that this amounts to harassment & bullying or discrimination. Sharon was simply requesting from Yasmin why she hadn’t started working on the database until the afternoon. Yasmin responded to one of the emails and did not raise an issue with it at the time. I believe there is no case to answer and no further investigation is required on this matter.

[123]Neil Williams, Group Finance Director, sent a letter dated 8 September 2020 [Bundle 172]. Under the 4 headings in the letter, the decisions were:123.1 The dismissal decision was upheld.

123.2 The allegations of bullying and harassment against Ms Phillips were rejected

123.3 The dismissal decision was made by Mr Ginsburg, not Ms Phillips, and the company had diversity and inclusion policies.

123.4 The Claimant’s holiday entitlement would be checked again, and anything owing would be paid (but that the holiday entitlement would be calculated on the basis that instructions to use some leave during April and May had been issued). 26 of 50

[124]The summary stated: In conclusion, we have taken the allegations made in your appeal letter very seriously and have conducted relevant investigations and sought evidence from persons relevant to your employment and termination. My decision is that, other than any holiday that may be owing to you as a result of working bank holidays, your appeal is not upheld and therefore we are not in a position to offer you any compensation. Statistical Information provided by the Respondent [Bundle 192-194]

[125]We accept that the Respondent has made a good faith attempt to extract data from its HR software (itrent) and to lay it out on [Bundle 192-194].

[126]The Equal Opportunities Form contained 16 possible boxes to tick. The boxes were grouped under 5 headings: White (3 boxes); Mixed (4 boxes); Black or Black British (3 boxes); Asian or Asian British (4 boxes); Chinese or Other Ethnic Group (2 boxes).

[127]The data set out on [Bundle 194] is not as clear as it could have been, because it uses the name from the individual boxes, but without a precursor to show which of the groups that box came from. For example, [Bundle 194] makes it appear that the Respondent was using a category “British” and a category “Indian”. But the actual boxes that had been ticked were, respectively, “White – British” and “Asian or Asian British – Indian”.

[128]So, overall, the Respondent’s data asserted that of its 731 employees, based on the boxes ticked on the form:128.1 20 had not supplied data (about 2.73%).

128.2 About 79.62% were “White – British”, 2.6% “White – Irish” and 2.87% “White – any other White background”. So about 85% combined.

128.3 About 1.64% were “Asian or Asian British – Indian”, and 0.96% were “Asian or Asian British – Pakistani”, none were “Asian or Asian British – Bangladeshi” and 0.68% were “Asian or Asian British – any other Asian background”. So about 3.3% combined. It was 24 employees out of 731.

128.4 The box “Mixed – White and Asian” appears to have been ticked by 13 employees (1.78%).

128.5 The remaining employees (about 7.2%) had ticked one of the other boxes.

128.6 All these figures are from July 2022, so about two years after the Claimant’s dismissal. 27 of 50

[129]For the period 2019 to 2022, 36 employees were dismissed with less than two years’ continuous employment: 26 (so 72%) were in the category “White – British”. So slightly less than the percentage of the overall workforce.

[130]Some additional information about the other 10 dismissed employee is included on [Bundle 192; 194]. We accept it to be accurate. One of those 10 appears to have ticked the box “Asian or Asian British – Indian”, and none of the others appear to have ticked any of the 4 boxes under the heading ““Asian or Asian British”. So that is about 2.8% of the dismissed employees. That is higher than the percentage (1.64%) of the overall workforce who had ticked “Asian or Asian British – Indian”, but it also meant that the aggregate of the grouping ““Asian or Asian British” was 2.8% of dismissed employees compared to 3.3% of the overall workforce.

[131]Of the 10 dismissed employees for whom we have the specific dismissal reason (that is, those who had not ticked “White – British”), three were for failed probation, and the remainder, including the person who had ticked “Asian or Asian British – Indian” were dismissed for “performance”.

[132]Shakira was dismissed in October 2018 and so is not included as one of the 10. Stephen is not included, partly because the Respondent says he was not dismissed, but also because this termination was in June 2018.

[133]This data, in combination with Ms Solanki’s evidence, does not cause us to infer that the Respondent had a hiring policy that was intended to deliberately discriminate against any particular racial group.

[134]This data does not, in itself, show anything that is statistically surprising or unusual about the racial groups of those dismissed by Respondent – before reaching two years employment - in the three year period ending 31 July 2022.

[135]As we said during the hearing, the contents of the pages ought to have formed part of witness evidence, or, at the very least, come with a clearer explanation of the methodology used. If statistical evidence was going to be used at all, then there are some notable gaps. The pages do not include details of which managers took each decision to dismiss, or of whether a disciplinary procedure was followed, for example.

[136]Thus we do not place a lot of weight on these pages when assessing the Respondent’s positive case for seeking to establish that race had nothing whatsoever to do with any of its decisions. However, we accept that it accurately gives evidence about the dismissals of people with under 2 years’ employment. Grievance Policy / Disciplinary Policy

[137]The grievance policy [Bundle 178-179] dated November 2014 was signed off by Mr Williams on behalf of the Respondent. 28 of 50

[138]It includes: Upon receipt of a grievance, the employee will be invited to a hearing and they will be informed of their right to be accompanied. The grievance hearing will normally be chaired by a director or appropriate manager. HR or an alternative note-taker should also attend.

[139]The policy states that investigation will be done before the meeting. However, we do not think that precludes investigation after the meeting too, because the outcome is supposed to be supplied within 5 days after the meeting, rather than at the meeting. Having commented on the outcome letter, the policy adds: If the grievance is not satisfactorily resolved at this stage, the employee has the right to appeal within five working days from receipt of the written confirmation. To exercise this right, the employee should notify in writing the director or manager who chaired the first stage hearing of the grounds of the appeal. Upon receipt of an appeal, the employee will be invited to attend an appeal hearing and will be informed of their right to be accompanied and call witnesses. The appeal should be heard by a director who has not been involved in the first stage hearing. Prior to the hearing, the director will make such investigations as considered appropriate. The director will advise the employee of the outcome within five working days of the hearing. If it is not practicable to respond within this timescale, the employee will be advised of the reasons for the delay and when a response can be expected. The decision will be confirmed to the employee in writing as soon as possible after the meeting. If the appeal fails, there is no further right of appeal.

[140]The disciplinary policy, dated 2016, is also signed off by Mr Williams [Bundle 180]. The introduction makes clear that it does not only apply to misconduct. It also applies to dealing with absence levels and performance. The policy does not apply to employees during the probation period, but it does thereafter. In other words, the policy does not state that it only applies after two years’ continuous employment. The policy includes the following extracts: The procedure is designed to establish the facts quickly and to deal consistently with disciplinary issues. No disciplinary action will be taken until the matter has been fully investigated. Investigations will be carried out without unreasonable delay. AND Where disciplinary action is considered appropriate, at every stage employees will be invited, in writing, to attend a disciplinary meeting, giving them sufficient time to prepare. The letter will detail the alleged unsatisfactory conduct, performance, attendance or breach of the employment contract. At every stage employees will have the opportunity to state their case and be represented, if they wish, at hearings by a fellow employee or be accompanied by a 29 of 50 Union Official/ Representative. Union involvement at a disciplinary meeting does not amount to union recognition on any other matters. Employees will be given a reasonable opportunity to call relevant witnesses to a disciplinary meeting. An employee has the right to appeal against any disciplinary penalty.

[141]Ms Smithson gave evidence, and we accept her comments were truthful and accurate, that the Respondent does not always follow the disciplinary procedure when the employee (has passed probation but) has been employed for under two years. However, she did not have any specific details of how often it did, or did not follow the policy. Dispute about safety checks

[142]Nothing turns on this, in our opinion.

[143]The Claimant’s position is that documents such as those between [Bundle 217 to 220] show that she (and Ms Ilyas) were complying with the requirements to do safety checks and make a written record of having done so.

[144]The Respondent’s position is that the documents do not show that. On the contrary, the Respondent argues, the documents show that the documentation was only being produced every 6 months, rather than every month.

[145]However, Mr Ginsburg expressly stated in his 28 August 2020 email that this had not been the reason for the Claimant’s dismissal. It seems to have been Ms Smithson who introduced this matter in her email to the Claimant of 7 August 2020 (though, on the Respondent’s case, she was accurately quoting comments that Mr Ginsburg had written in November 2019).

[146]Our finding is that it made no difference to Mr Ginsburg’s dismissal decision whether or not the Claimant (and Ms Ilyas) had been producing the safety check document once every 6 months, or once every year. It is not a point that he had in mind, in July 2020, when he decided to dismiss the Claimant. Dispute over appraisal documents

[147]Our decision is that the arguments about appraisal documents is relevant more to credibility than to any substantive issues.147.1 If this were an unfair dismissal case, and we needed to analyse what (if any) specific warnings the employee had been given about the need to improve performance, then – for that reason – we might need to fully resolve (and decide on balance of probabilities) which versions of the appraisal documents the Claimant received, and when. 30 of 50

147.2 However, this is not an unfair dismissal case. If Mr Ginsburg was telling the Tribunal that he dismissed the Claimant for poor performance, and the contemporaneous evidence all showed that he had given her nothing but praise, then that would be relevant – not because it might be unfair to dismiss someone who had been lulled into thinking everything was going well – but because that might be an inconsistency which might call for an explanation. In fact, however, far from the documents in the bundle showing that he had given her nothing but praise, the documents in the bundle include several communications from Mr Ginsburg to the Claimant which contain criticisms. We do not ignore the fact that the documents in the bundle have been selected, in part, precisely because they demonstrate criticisms. However, that does not change the fact that the contemporaneous emails sent to the Claimant (which she clearly did receive, as she accepts) are consistent with the manager’s comments on the appraisal forms (which she denies seeing at the time).

147.3 If it were hypothetically true that Mr Ginsburg, or anyone else, had, because of this litigation, fabricated documents to purport to show contemporaneous criticisms (in appraisals) that had not been made at the time, then that would be a very serious matter indeed. To say the least, it would be something that we would have to take into account when assessing the credibility of any part of their other evidence.

147.4 If it were hypothetically true that Mr Ginsburg, or anyone else, had forged the Claimant’s signature on any document, not because of this litigation, but for some other hypothetical reason, that would certainly have the potential to affect their credibility, in itself; but the fact that they denied such conduct under oath would seriously undermine their credibility.

[148]On the last day of the hearing, we received electronic copies of various emails with attachments.148.1 One was Tony Woodman to Mr Ginsburg and others on 26 May 2019. The word document attachment relating to the Claimant fully matches [Bundle 201 to 206]. We are fully satisfied that this evidence eliminates the possibility of [Bundle 201 to 206] being a recent fabrication.

148.2 Another was Mr Ginsburg to Mr Woodman on 14 November 2019. The word document attachment relating to the Claimant matches [Bundle 212 to 216], save for lacking Mr Woodman’s signature. The lack of that signature is the opposite of surprising. We are fully satisfied that, as of 14 November 2019, there was a document in existence that (purported) to include the Claimant’s signature (and Mr Ginsburg’s comments), and it was sent to Mr Woodman for him to add his signature. [Bundle 212 to 216] is not a recent fabrication. 31 of 50

148.3 There is then an email from Mr Woodman dated 23 November 2019, which attaches the version matching [Bundle 212 to 216]; that is, with his signature added.

148.4 In itself, the attachments to these emails would not necessarily eliminate the possibility of the Claimant’s signature having being forged (that is, an electronic copy of her signature having been added by someone else, and without her knowledge or consent) prior to their being sent to Mr Woodman. However, the Claimant has not persuaded us that Mr Ginsburg added her signature without her knowledge or consent. On balance of probabilities, it is more likely that the Claimant added her signature, and has forgotten, than that Mr Ginsburg added her signature. It is clear to us that Mr Ginsburg was content to make criticism of the Claimant’s performance in written documents. It is also clear to us that he wanted to give information to the Claimant that she needed to improve. (It is also our assessment that he genuinely did want her to improve, but, whether that proposition is true or not does not change the fact that he was content to tell her that she needed to improve.) Mr Ginsburg had no plausible reason for pretending to Mr Woodman that the Claimant had seen his comments (when really she had not) instead of actually sending the comments to the Claimant at the time. We find that he did so. Bina Solanki’s evidence

[149]Ms Solanki’s resignation letter, dated 29 October 2018 [Bundle 184], addressed to Mr Ginsburg included: I wish both you and Hill Residential every good fortune and I would like to thank you for having me as part of your team. If there is anything I can do to help with the transition, please let me know.

[150]We note the contents of the document which purports to note what was said by Ms Solanki in her Exit Interview. [Bundle 184 to 187]. We accept Ms Solanki’s account that no draft was sent to her to invite her to suggest any corrections or omissions, and we accept her account that she had not seen the document at all prior to seeing it in the bundle for this hearing.

[151]The document records that Ms Solanki made various criticisms of the Respondent and of Mr Ginsburg. This (together with Ms Solanki’s witness evidence) is sufficient to outweigh any implication in the resignation letter that Ms Solanki had been entirely happy during her employment.

[152]The document does not record any allegations of discrimination, and does not record any concerns by Ms Solanki that the Respondent had a policy of(i) dismissing people because of race

(ii) dismissing people to avoid their acquiring two years’ continuous service or

(iii) a combination of both. 32 of 50

[153]We reject Ms Solanki’s suggestion that the genuine Exit Interview document might have been manipulated, and be different to the one that appears in the hearing bundle. Since she never saw the original, she has no basis for that suggestion.

[154]We agree with Ms Solanki’s suggestion that, since she never had the chance to comment on the notes at the time, the fact that any particular subject matter is not included in the notes is not strong evidence that she did not raise that subject matter in the interview.

[155]We take into account that the Respondent has not called the author of the note to give evidence. We draw no adverse inference from that.155.1 Ms Solanki’s witness statement included (our emphasis added): I resigned from my position at Hill Group because I believed my line manager Simon Ginsburg to be a non-supportive manager (working us long hours, up to 12 hours a day) constant pressure to hit sales targets, targets changing without notice, last minute reports, continuous pressure and micromanagement. This was a very big part of the reason I left Hill, as it was affecting my health, all of these facts have been documented as when I was leaving the group, I requested an “exit interview!” with HR, so please refer to my exit interview this to verify.

155.2 It also included: A key reason I left was Hill Group is that they have a reputation for getting rid of people just before they complete 2 years of employment. I have heard of terminations taking place in public places, and without Hill following any of their own policies or procedures. I did not feel protected to be working for a company who were known to get rid of BAME staff at the drop of a hat. I am a highly qualified professional and was not used to this kind of working environment and always felt as if I was treading on egg shells as I had no support system as an employee of the group. The HR team are there for names sake. They do not support you; they were there to make excuses for the management mistakes. I personally noticed that SG would not keep people of colour as soon as the 2 years of employment was approaching, his management style was to take them to a coffee shop or “offsite” and their employment was terminated.(Stephen/ Shakira/ Adam to name a few) unfairly dismissed or discriminated against, Hill group practice a favouritism culture, after hearing about these terminations and experiencing unfair treatment myself, I finally decided that I did not feel that this was a company that I could respect or work in for longevity.

155.3 In terms of the first extract quoted, the Respondent had no reason to call the author of the Exit Interview notes. What is in the notes is consistent with what Ms Solanki refers to in that extract. 33 of 50

155.4 In terms of the second extract quoted, the Respondent had no reason to call the author of the Exit Interview notes. Ms Solanki did not claim, in her written statement, to have mentioned those matters in the Exit Interview.

[156]On balance of probabilities, during her Exit Interview, Ms Solanki did not refer to those matters mentioned in the second extract quoted in the preceding paragraph.156.1 It is not inherently implausible that an interviewer might be willing to write down some comments (on management style, commission, workload etc) but be unwilling to formally record allegations of race discrimination. (There was no specific evidence that the author was unwilling to write down evidence of discrimination; we are simply acknowledging that the mere fact alone that several criticisms are written down does not, in itself, prove that some other criticisms were omitted, either accidentally or on purpose.)

156.2 However, in the witness statement dated 20 July 2022 (so about 3.5 years after the interview), Ms Solanki did specifically say that certain things were mentioned in her Exit Interview, and would appear in the notes.

156.3 The fact that she did not make the same assertion, in her 20 July 2022 statement, about raising discrimination or dismissal concerns in the Exit Interview is some evidence that she did not (as of July 2022) believe that she had done so.

156.4 Significantly, Adam had not been dismissed by 16 November 2018 (the date of Ms Solanki’s Exit Interview). This part, at least, of her recollection is clearly wrong. That is:

(i) firstly Adam’s dismissal cannot have been part of her reason for leaving and

(ii) secondly Adam’s dismissal cannot have, by October or November 2018, been a contributory factor to any belief that she might have formed about the Respondent or Mr Ginsburg (whether about race discrimination, or at all).

156.5 During cross-examination, Ms Solanki did not assert that she said anything about Adam’s dismissal at the Exit Interview. She did assert that she mentioned Stephen’s and Shakira’s.

156.6 While we have not formed the opinion that Ms Solanki deliberately lied to us (in November 2024) about the contents of her Exit Interview (which took place 6 years earlier), we are satisfied that her recollection of what she said is insufficiently reliable to overcome the facts that (i) on the face of it, the Exit Interview notes are fairly full and detailed (including a “PS” section) and they omit any reference to concerns about race discrimination, or a practice of dismissing people shortly before they acquire two years’ service and (ii) her July 2022 written statement did not claim that she raised these things in the Exit Interview and

(iii) her July 2022 statement said that her opinion that there was a discriminatory practice (as per the extract above) claimed that, before she had 34 of 50 resigned, she had formed this opinion, and that Adam’s dismissal was one of the things which contributed to that opinion.

[157]For Stephen, Ms Solanki’s account is that she was at FIV on the day of his termination. She says Stephen told her that Mr Ginsburg had told him that if he did not resign then he would be sacked; she did not claim to have witnessed Mr Ginsburg say this. She accepted that for Shakira she did not know her dates of employment. She accepted that she believed that the dates of employment given by the Respondent for Stephen and Adam were correct.

[158]Ms Solanki’s evidence does not persuade us even that it was true that the Respondent had a reputation “for getting rid of people just before they complete 2 years of employment”. Her professed belief that the Respondent did have such a reputation does not provide any reliable evidence that the Respondent did, in fact, have a practice of “getting rid of people just before they complete 2 years of employment”.158.1 We asked her about why she said the Respondent had this reputation. She said that during her employment, she formed the opinion that the Respondent had a high turnover of staff. Even if (for the sake of discussion) the Respondent did have a high turnover of staff, it does not follow that the people who left were dismissed by the Respondent. Also, this assertion implies that it was an opinion that she had formed herself, which is different from her learning that the Respondent had “a reputation”.

158.2 We are not satisfied that she has any particular knowledge of the reasons for the departures of Stephen, Shakira or Adam. On the contrary, we are satisfied that she does not have first hand knowledge.

158.3 Her opinion that the examples of Stephen’s or Shakira’s departures supported a belief that the Respondent had a practice of dismissing people just before the two year mark is fatally undermined by

(i) her acceptance that Stephen was there for around 4 or 5 months and

(ii) that she did not know Shakira’s start date.

158.4 Her opinion that the example of Adam’s departure supported a belief that the Respondent had a practice of dismissing people just before the two year mark is fatally undermined by the fact that she claimed to have formed this opinion before her resignation, but Adam was not dismissed until more than a year later, in November 2019.

158.5 She was asked why (even assuming it was true that the Respondent liked to get rid of people just before the two year mark) she had formed the opinion that this was because of race. She referred to her time at FIV and stated that the Respondent only had two white employees there, that she was aware of (one being Ms Phillips, and the other referred to as “Rosie”). It was that fact that almost all the employees were (to use the phrase in her witness statement) 35 of 50 “people of colour” that led her to the opinion that the (alleged) practice of getting rid of people just before two years was because of race. Fiza Ilyas’s evidence

[159]The Respondent introduced an email exchange between Ms Ilyas and Mr Ginsburg from March 2023. This was long after they had both ceased working for the Respondent. As discussed in the exchange, Mr Ginsburg had left first, and Ms Ilyas gave him details of her departure.

[160]It is not our opinion that Ms Ilyas’s written statement cannot possibly be true, because the email exchange conclusively disproves the contents. However, the email exchange shows Ms Ilyas contacting Mr Ginsburg spontaneously, and, after he replied to her first email, she sent a second email which ended: Anyway glad to hear back from you. Keep in touch!

[161]Ms Ilyas’s non-attendance meant that the Respondent did not have the opportunity to cross-examine her about whether what she said in her written statement was consistent with this email exchange, or her interactions with Mr Ginsburg generally.

[162]However, we did hear oral evidence from Mr Ginsburg that he thought his working relationship with Ms Ilyas had been fine, and that she had not complained about him, as far as he knew. The Claimant also had the opportunity to ask Ms Smithson about any complaints made by Ms Ilyas during her employment.

[163]In the circumstances, we give the contents of Ms Ilyas’s written statement little weight. Stephen, Shakira, and Adam

[164]Stephen, Shakira, and Adam are the same three people mentioned by each of Ms Ilyas and Ms Solanki in their witness statements.

[165]They are the same three people whose information is set out on [Bundle 192]. Although not shown clearly by the information in the “ethnic origin” column, the Respondent does not dispute that – in the words used in Ms Solanki’s statement – the descriptions “people of colour” or “BAME staff” could be used to refer to respective racial groups which included each of them.

[166]Mr Ginsburg denies that Stephen was dismissed. His account is that, as stated on [Bundle 192], the termination reason was resignation. The Claimant has no reliable evidence to contradict this, and we accept it. In any event, even if – contrary to our finding – he was actually dismissed (including by being told ‘if you do not resign, we will sack you’), he was employed less than 6 months, and his 36 of 50 termination lends no weight to the theory that the Respondent was in the habit of dismissing people shortly before they had been employed for two years.

[167]The Respondent has provided evidence of Shakira’s absences, and we accept that those dates are correct. She was absent for around 15.25 days (6 separate periods) in 18 months’ employment. We accept Mr Ginsburg’s account that the conscious reason for her dismissal was that he thought that the frequency of her absences was too high.

[168]Adam worked at Echo One after Ms Solanki left, and before Ms Ilyas joined. The Claimant has criticised his performance, both in the contemporaneous documents, and in her witness evidence at this hearing. She asserts: He worked with me at Echo One for just over six months, we did not have a great working relationship whilst he worked with me and although I tried to accommodate him as much as I could, he was just not delivering as a team member and that put further pressure on me to give more to the job and to my employer, and so whilst I worked with Adam, I was automatically put under pressure to work longer hours to make up for Adams lack of performance. This reflected in my performance. In the six months that [Adam] worked with me he signed up 3 sales and I signed approximately 25 sales. This is mentioned in my May 2019 appraisal where my line manager appreciated my efforts for working in a difficult environment and achieving so much. Adam, was not very good with people so he ended up taking charge of progressing the sales and did not allow me to get involved, so to keep the peace I moved back so that he could feel like he was contributing in some form if not with sales, then with the progressing of the sales. In March 2019 when Adam took some annual leave and I was left to take over from him on the sales progression I found that he was struggling to keep u with progressing things along as quickly as he should be, I was concerned and spoke to Simon Ginsburg about my concerns, this was not the first time I had spoken to Simon Ginsburg about my concerns about working with Adam Dar as I felt he was not contributing the time or the commitment to the job and in turn it was putting more pressure on me to make up for the lack of performance from my colleague Adam, which was beginning to burn me out. I told my line manager I needed a team player and that I felt like I was working alone and not as part of a team and things couldn’t go on like this. In May 2019, Simon Ginsburg clearly realised that Adam and I were unable to work together so he then made a decision to move Adam back to his previous development and move another member of staff to work alongside me at Echo One, this is when Fiza Ilyas started working with me at Echo One.

[169]Mr Ginsburg’s recollection is that Adam was coming to the end of his contract (he cannot recall the date) and there were discussions. Mr Ginsburg did not think that Adam’s performance was adequate, and he left. We accept that the Respondent’s records are accurate, and that Adam left around 18 October 2019. Regardless of whether it was a non-renewal of a fixed term contract, or a decision that an 37 of 50 extended probation period had not been passed, or neither of those, it was Mr Ginsburg’s decision (on behalf of the employer) that the employment relationship would come to an end. In other words, this was a “dismissal”. The period of employment was significantly less than two years (slightly less than 18 months). The Claimant’s own opinion about Adam’s performance is entirely consistent with Mr Ginsburg’s explanation of the conscious reason for the dismissal, and we accept that poor performance was Mr Ginsburg’s conscious reason. Analysis and conclusions

[170]There are 10 separate alleged acts/omissions that are said to be direct race discrimination in paragraph 7.1 of the list of issues. In terms of the Claimant’s race, that is referred to as “being Asian” in the list of issues.

[171]As per paragraph 7.2, there is a suggested actual comparator for the dismissal allegation (paragraph 7.1.10) and the Claimant also relies on hypothetical comparators.

[172]As per paragraph 7.4, we must consider the requirements of section 136. 7.1.1 Ms Phillips micromanaged the claimant;

[173]This factual allegation is quite vague and non-specific. We do not agree with the suggestion that Ms Phillips’s actions should be characterised as “micromanaging” the Claimant. In relation to the FIV site, and especially when the Claimant was working from home, the Claimant had been given a specific task to do, namely “retrawling” on Contact Builder. Ms Phillips’s correspondence with the Claimant was largely via email. She sought updates from the Claimant, and wrote emails suggesting that she, Ms Phillips, had checked if the Claimant had started work on the task yet that day, and that the Claimant did not appear to have done so. The timings of (some of) the emails are set out in the findings of fact and none of the requests for information seem excessive or unreasonable in the circumstances.

[174]The burden of proof does not shift. There are no facts from which we could reasonably infer that Ms Phillips was motivated (even partially, or even unconsciously) by the Claimant’s race, or that a hypothetical comparator would have been treated differently.

[175]This allegation fails. 7.1.2 Ms Phillips sent to the claimant [an] offensive email knowing that the claimant was working from home following an injury to her ankle on 9 July 2020;

[176]Our judgment is that none of the emails which Ms Phillips sent to the Claimant on 9 July 2020 match the description “offensive”. 38 of 50

[177]In evidence, the Claimant stated that she had in mind the email of 11 July 2020 [Bundle 311] quoted in the findings of fact, the last paragraph of which read: Can you please let me know how many hours you can work on FIV bits today and if you will be able to come into work tomorrow. If you can't get here then maybe you need to go off sick?

[178]The Claimant’s argument is that the last sentence was offensive.

[179]The context was set out in the findings of fact: the previous day (Friday 10 July), Ms Phillips had emailed the Claimant at 14:10 to see if the Claimant would come to FIV for the weekend (Saturday and Sunday 11 and 12 July). Three and a half hours later, at 17:40, the Claimant replied to say that she would be working from home “for now”.

[180]The allegedly offensive email was sent early the following day, after the Claimant had not arrived on site. Amongst other things, it asked if the Claimant would attend FIV the following day, the Sunday.

[181]There was a question mark at the end of the allegedly offensive sentence, and the email was copied to Mr Ginsburg.

[182]Ms Phillips regarded the issue of whether an employee - who has an illness or injury which prevents them attending the office - must be regarded as being on sick leave (and therefore doing no duties), or else can/should be allowed to work from home for normal pay, as being a managerial decision. Her opinion was that it was something that the Claimant could not unilaterally decide.

[183]The burden of proof does not shift. There are no facts from which we could reasonably infer that Ms Phillips was motivated (even partially, or even unconsciously) by the Claimant’s race, or that a hypothetical comparator would have been treated differently.

[184]This allegation fails.

[185]We will deal with paragraph 7.1.3 in the list of issues alongside paragraph 7.1.10. 7.1.4 Giving a Sales Executive position to a white female with less experience and either no or limited knowledge of the respondent’s procedures;

[186]The appointment of Megan Blackwood was not the Respondent treating the Claimant less favourably than it treated Ms Blackwood. As of 2 July 2020, when the appointment of Ms Blackwood (as agency worker) was authorised, the Claimant already had a job working for the Respondent. 39 of 50

[187]The Claimant had been brought back from furlough(i) to work at Echo One while Ms Ilyas was on leave and

(ii) to work at FIV temporarily. The Claimant did not wish to work at FIV permanently.

[188]As we will discuss when addressing paragraphs 7.1.3 and 7.1.10, we are satisfied that the reason the Claimant was dismissed was not “redundancy”. That is, she was not dismissed because the Respondent was overstaffed (overall) and it is not true that appointing Ms Blackwood led to the Respondent becoming overstaffed.

[189]Rather, at FIV, they were short-staffed which led to both things: the Claimant being asked to work their temporarily; Megan Blackwood being recruited to work there. On the evidence, we are entirely satisfied that the fact that the Respondent now had Ms Blackwood available to work at FIV was, not in any way, the motivation for the decision to dismiss the Claimant.

[190]In terms of any argument that, if the Claimant was displaced from Echo One (because the Respondent decided to reduce from 2 employees to 1 employee at that site, and decided that Ms Ilyas would be the person retained there), then, in that case, the Respondent ought to have considered alternative work for her, there are a few points to make:190.1 We are not dealing with an unfair dismissal case.

190.2 There is no evidence that there was any plan by the Respondent to appoint someone to FIV (at the start of July) so that it could inform the Claimant (at the end of July) that there were no vacancies at FIV. We are satisfied that that is not the case, and that recruitment plans for FIV were entirely separate from the later decision (made some time between 13 July and 24 July) to dismiss the Claimant.

190.3 The Claimant pointed out in her appeal letter that, if there was no work immediately available for her, then the Respondent could have returned her to furlough. We agree, and will comment on that proposition when discussing dismissal. But the point undermines the alleged connection between the appointment of Ms Blackwood and the Claimant’s dismissal. The Respondent had no reason to appoint Ms Blackwood (or anyone else) to enable it to dismiss the Claimant, and the appointment of Ms Blackwood (or anyone else) would not have prevented the Claimant remaining as an employee (either on furlough, or otherwise).

190.4 Even if we are wrong about that, and there was a plan to fill vacancies at FIV in order to be able to tell the Claimant that she was surplus to requirements at Echo One, and there was no alternative work available, then the mere fact alone that the person recruited was white would not imply that the decision to dismiss the Claimant was race discrimination. It would be the thought processes of those who came up with the hypothetical plan which would have to be 40 of 50 examined. However, as mentioned, this is hypothetical, because there was no such plan.

[191]There are no facts from which we could reasonably conclude that the Respondent replaced the Claimant with a white employee, or that Ms Blackwood was appointed because she was white, or that the Claimant’s race played any part in the decision to appoint Ms Blackwood.

[192]This allegation fails. 7.1.5 Not discussing plans with the claimant for her removal from the Harrow site;

[193]It is factually correct that the Claimant was called to a meeting on 30 July 2020 (her first day back from sickness) without being told that she was to be dismissed in the meeting, or even that potential dismissal would be discussed.

[194]We are satisfied that Mr Ginsburg’s reason for dismissing the Claimant was not “redundancy”. He did not dismiss the Claimant because he had decided keep one of Ms Ilyas and the Claimant at Echo One, and to dismiss the other one, and to have Echo One as a one person site.

[195]It is accurate that a plan to convert Echo One to a one person site was one of the things mentioned by Mr Ginsburg in the meeting in Costa, and that it was mentioned in the context of being one of the factors that led to the decision to dismiss the Claimant. However, that was not the real reason. As set out in the dismissal letter (and as we will discuss when addressing paragraphs 7.1.3 and 7.1.10 below), the real reason was Mr Ginsburg’s perception of the Claimant’s performance and, in particular, his perception of her performance of the work he and Ms Phillips had instructed her to do in connection with FIV.

[196]The contemporaneous documents (including the appeal letter) make reference to the Claimant’s and Ms Ilyas’s separate periods of furlough. As we said in the findings of fact, we have no specific evidence of when or why it was decided that Ms Ilyas would come back off furlough and work at Echo One (replacing Ms Reddy, it seems, who went to FIV), while the Claimant remained on furlough for longer. That decision is not (directly, at least) one of the acts/omissions that are complained of. However, when the Claimant was asked to come off furlough (at very short notice, it has to be said) she asked to remain on it for another week. At the time (and in this litigation), the Claimant did not complain about Ms Ilyas returning to work at Echo One while she, the Claimant, remained on furlough. Potentially there was no consultation about that, but we do not know, because neither side provided specific evidence. The contemporaneous documents show that the Claimant was aware of what was happening at Echo One while she was on furlough; she was not, for example, under the mistaken impression that she and Ms Ilyas were both on furlough for the entire period from April until around 19 June. 41 of 50

[197]However, even assuming that there was no consultation with the Claimant about Ms Ilyas being asked to come off furlough (to replace Ms Reddy at Echo One), we are satisfied that, at the time that particular decision was made, no plan to dismiss the Claimant had been formulated and no plan to permanently (even after the end of the pandemic) reduce Echo One to one employee had been made.

[198]This allegation fails because there was, in effect, nothing to consult the Claimant about in terms of any reorganisation, because she was not dismissed because of a redundancy.

[199]In terms of being dismissed, allegedly with insufficient warning and/or without discussion of alternatives, we discuss dismissal below.

[200]Paragraphs 7.1.6 to 7.1.9 are about events which occurred after the dismissal. They are also alleged to be victimisation as well as discrimination. We will discuss the dismissal first. 7.1.3 On 30 July 2020, Mr Simon Ginsburg, Sales Manager, purportedly dismissed because of poor performance and that she could not return to her place of work in Harrow; 7.1.10 Dismissing the claimant

[201]Our decision is that the events during the Claimant’s probation are not relevant in terms of Mr Ginsburg’s dismissal reason in 2020, save that, in a very general way, those events form part of the evidence that the Respondent did take performance issues very seriously, and that (as shown by the mystery shopper feedback) there were certain standards of performance which the Respondent sought to maintain, and sought to make clear to its staff that it was proactively monitoring.

[202]Our decision is that the arguments about appraisal documents is relevant more to credibility than to any substantive issues. We are satisfied that Mr Ginsburg had made the Claimant aware – in forceful and unambiguous language – about what (in his genuine opinion) were areas in which the Claimant needed to improve. We do not have to rely on what is said the in appraisal documents for that conclusion, because contemporaneous emails make the point too. However, in any event, we are satisfied that the Claimant did receive the manager’s comments in the appraisals, including the November 2019 mid-year review.

[203]Both the comments which Mr Ginsburg wrote directly to the Claimant and the discussions which Mr Ginsburg had with Mr Woodman demonstrate clearly that(i) the Respondent placed high importance on Contact Builder and

(ii) was potentially willing to take action against employees who did not diligently carry out the Contact Builder tasks and

(iii) that the Claimant was perceived as not carrying out these tasks as well as the Respondent wanted her to. 42 of 50

[204]Mr Ginsburg did not instigate the formal disciplinary procedure. That includes prior to sending the 17 February 2020 email which included the phrase “this is the absolute final warning”. In context, that did not mean that the next step was that he would tell her that she was dismissed (if there was no improvement). The next paragraph mentioned that, if there was no improvement, “I am afraid we are going to have to review things more seriously”. The implication of the 17 February 2020 email was that he was contemplating instigating the formal disciplinary procedure, rather than that he believed that they had already been through it, and reached the stage of his issuing a formal (final) warning as per that policy.

[205]For completeness, had the Respondent been purporting to treat that email as a formal warning, then the Disciplinary Procedure gave the Claimant a right to appeal against it; however, it is plain to us that the email was not intended to comply with the formal part of the Disciplinary Procedure. That email, as well as others sent earlier, certainly did comply with the part of the procedure which stated: Minor deﬁciencies of conduct or performance will be dealt with, in the ﬁrst instance, by the Company during an informal discussion. The Company will suggest what remedial action is required on the employee’s part and/or offer further assistance or training in order to carry through the necessary improvements.

[206]The fact that the Respondent did not comply with the Disciplinary Procedure is only relevant to the race discrimination allegation to the extent that it is one of the factual matters that we take into account when deciding if the burden of proof shifts. Unlike in an unfair dismissal case, we are not directly concerned with the reasonableness or unreasonableness of the failure to comply with the requirements of the procedure. However, the more unreasonable the failure then, potentially, the higher the likelihood that an employment tribunal might conclude that the treatment cries out for an explanation.

[207]The statistical information on page 192 provides no details of whether the disciplinary process was followed for the 36 dismissals mentioned on the page.207.1 That being said, 13 were for failing probation, so there are only 23 remaining dismissals which are (potentially) relevant to the point. One of those might be redundancy (to which the Disciplinary Procedure would not apply) and two others have no reason stated.

207.2 All 10 of the 36 dismissals where “White – British” had not been recorded on the monitoring form were of people who had less than 2 years employment; since 3 of those were for failing to pass probation, there were 7 of those to which, in principle, the disciplinary procedure should have applied.

207.3 All of the 36 dismissals for which data has been provided were of people with less than two years’ service [Bundle 194]. 43 of 50

207.4 We neither have any data at all about those dismissed after having achieved 2 years (including whether the Disciplinary Procedure was followed) nor any data about to whom the Disciplinary Procedure was applied if they had under two years’ employment.

207.5 Our assessment is that the statistical data in the bundle lends no positive weight to the argument that the Claimant was treated less favourably, because of race, in connection with the decision to dismiss. It also lends no positive weight to the Respondent’s argument that the decision to follow no formal Disciplinary Procedure was purely because the Claimant had under two years’ employment, and for no other reason.

[208]On the facts, we are satisfied that Mr Ginsburg genuinely believed that the Claimant was not pulling her weight in connection with the FIV work. On a point that was connected, but important in its own right, he also genuinely believed that the Claimant had manipulated Contact Builder, to set forward reminders, to make it appear that she had actually cleared the day’s action points properly (by attempting to contact the potential customer) when, in reality, she had not, and was leaving it for someone else to do in future.

[209]On the facts, while the Claimant was on furlough, he was not planning to dismiss her in July 2020. It is purely speculation as to what might have happened but for the pandemic, and the lockdowns, and furlough. Had the Claimant remained working at Echo One, alongside Ms Ilyas, normally during April to July, there is no way of knowing whether matters would have transpired such that either(i) Mr Ginsburg instigated a formal disciplinary procedure, leading to dismissal or

(ii) Mr Ginsburg dismissed without following any disciplinary procedure. It is certainly possible - based on the 17 February 2020 email and earlier comments made by him to the Claimant – that a dismissal on the grounds of alleged poor performance might have taken place before (or shortly after) the Claimant had been employed for 2 years. However, it is also possible that there would have been no dismissal. As we say, it is pure speculation.

[210]However, the actual facts are that the Claimant did not remain working normally at Echo One throughout 2020. She had a period of furlough, and she was brought off it and, after a week of covering Echo One, was required to assist at FIV. There is no major factual dispute about what she was told she had to do. The Claimant purports to draw a distinction between what Mr Ginsburg told her (which, in effect, she accepts were instructions from her employer which it was lawfully entitled to give to her) and what Ms Phillips told her to do (which, in effect, the Claimant regards as inappropriate interference in her work by someone with no formal line management responsibilities for the Claimant). Mr Ginsburg genuinely did believe that the Claimant was not carrying out his instructions to do the FIV work. His belief was partially based on information received from Ms Phillips and partially on his own interactions with the Claimant. 44 of 50

[211]The emails he sent to the Claimant at the time, before her sickness absence formally commenced, show that he was becoming frustrated at what he perceived as the Claimant’s slowness to reply to him about various points, but most notably the issue of whether she could travel to FIV and, if not, whether she had medical evidence of that.

[212]Mr Ginsburg took advice from HR. It is clear that both Mr Ginsburg and Ms Smithson were alert to the fact that the Claimant’s two year anniversary of the start of employment was in September 2020. That is, it would arrive less than two months after the expiry of the sick note. Our decision is that Mr Ginsburg was independently aware of the fact that if the Claimant reached the two year point she would have unfair dismissal rights; in any event, it was a feature of the discussions that he had with Ms Smithson.

[213]Mr Ginsburg decided that he wanted to dismiss the Claimant and he wanted to do it without the Claimant reaching two years’ service. Ms Smithson supported him in those decisions, and advised him that he could take those actions on behalf of the employer.

[214]He was aware that he had the option to put the Claimant back on furlough. He did not wish to do that, because he wished to terminate her employment, before the two year point, rather than deal with (alleged) poor performance later.

[215]We do not think that he first formed the opinion that he would reduce the staffing levels at Echo One to one person (permanently, even after end of pandemic) and second formed the opinion that he would – therefore – dismiss the Claimant and retain Ms Ilyas. Rather, we think that he first decided that he would dismiss the Claimant (because of his opinion of her performance, as described above) and later either(i) decided to tell the Claimant that part of the reason was because Echo One did not need two people to soften the below and/or

(ii) decided that, after dismissing the Claimant, he would not recruit, or relocate, an employee to replace her at Echo One.

[216]There are no facts from which we could reasonably decide that these decisions amounted to less favourable treatment of the Claimant because of race.216.1 There are no actual comparators; that is, we do not have details of anyone of a different racial group whose circumstances were the same as the Claimant’s and who either

(i) was not dismissed or

(ii) was dismissed, but only after the Disciplinary Procedure was followed or

(iii) having had around one years and ten months employment, was not dismissed quickly, but only after formal hearings, warnings, etc.

216.2 The facts do not persuade us that there is anything which calls out for an explanation or suggests that a hypothetical comparator of a different race would have been treated differently in the same circumstances. It is true that the 45 of 50 Claimant did, indeed, have under two years’ service and true that some employers factor that in when deciding whether to dismiss without following the proper procedure in their own policies.

[217]If we had decided that the burden of proof had shifted, then these complaints would still fail. We are entirely satisfied by the Respondent’s explanation of why it dismissed the Claimant, and that the dismissal decisions were not motivated, even partially, and even unconsciously, by race (“being Asian” as identified in the list of issues).

[218]It may or may not have been unfair and unreasonable for Mr Ginsburg to be suspicious of the Claimant’s explanations. However, we are satisfied that Mr Ginsburg(i) did believe that the number of Contact Builders tasks she was completing was lower than it should have been and

(ii) did believe that the Claimant had concealed the fact that she was simply amending dates on the Claimant rather than doing the work, and unconvinced by her accounts of why the work she was doing was adequate. His email to her on 28 June 2020 makes that clear, and the correspondence which ensued after the Claimant first mentioned her sprained ankle did not improve his opinion of her work output.

[219]The allegation that the dismissal was race discrimination fails. 7.1.6 Not conducting an adequate and/or proper investigation into the claimant’s grievance; 7.1.7 Not providing the claimant with adequate reasons supported by documentary evidence, for the grievance decision/outcome; 7.1.8 Not dealing adequately and properly with the claimant’s appeal against her dismissal; 7.1.9 failing to provide adequate reasons for the appeal outcome;

[220]These are alleged to be acts/omissions which were direct race discrimination. In addition, paragraph 7.10 of the list of issues effectively establishes that these are the same alleged to be acts/omissions which are relied upon for the victimisation claim.

[221]Different legal questions arise from the respective discrimination and victimisation arguments. However, in terms of whether it is true that what the Respondent did was not adequate, we make the following points.221.1 The Respondent failed to follow the Disciplinary Procedure.

221.2 Ms Smithson and Mr Williams both knew what the Disciplinary Procedure said. 46 of 50

221.3 They knew that Mr Ginsburg had not invited the Claimant, in writing, to any formal meeting, or told her about the right to be accompanied, or told her, in advance of the meeting, what evidence was to be relied upon.

221.4 They knew she had no documented formal warnings prior to the dismissal.

221.5 They knew the Procedure implied that there would be a hearing for an appeal, not just a decision on the papers.

221.6 The Respondent failed to follow the Grievance Procedure.

221.7 Ms Smithson and Mr Williams both knew what the Grievance Procedure said.

221.8 They knew that the outcome of a grievance was supposed to be issued after a meeting with the employee, and that there was supposed to be a right of appeal. Neither of these requirements were followed in the Claimant’s case.

[222]The issue for us, however, is not whether it was unfair or unreasonable to act in this way. The issue is not whether this breached the Claimant’s contractual rights, or was contrary to her legitimate expectations. The issue is not whether there was a breach of an ACAS code (though that might be important for remedy, if liability was established). The issue is whether - based on all the facts, including the failure to follow the Respondent’s own procedures – the burden of proof shifts.

[223]We do not think that there was anything improper or suspicious about Mr Williams’ decision to ask Ms Smithson to carry out an investigation on his behalf. We accept that he did ask her to do so.223.1 As far as the dismissal appeal specifically is concerned, it certainly was poor practice that Ms Smithson, who had given advice to Mr Ginsburg that he could proceed with the dismissal, was then the person who investigated.

223.2 Technically, the complaint about Ms Phillips was a separate matter to the dismissal. However, on the Respondent’s own case (and as stated in the evidence of Ms Smithson and Mr Williams) the Respondent regarded it as interlinked. Therefore, it was also poor practice that Ms Smithson, who had given advice to Mr Ginsburg that he could proceed with the dismissal, was then the person who investigated the complaint about Ms Phillips’s conduct (that, in the grievance, the Claimant had alleged was connected to the dismissal).

[224]Mr Williams received responses (conveyed to him by Ms Smithson) about what each of Mr Ginsburg and Ms Phillips had to say about the Claimant’s allegations (and also that Ms Reddy said she had not seen discrimination, and did think that the Claimant had made alterations to Contact Builder without contacting the customer). From an objective point of view, there had not been an “independent” 47 of 50 investigation, but we do accept that Mr Williams was a pair of fresh eyes, and that he considered all of the material available to him.224.1 Based on the material available to him, it was not suspicious that he agreed that Mr Ginsburg had made the Claimant aware of historic performance issues. This panel has reached the same conclusion.

224.2 Based on the material available to him, it was not suspicious that he did not regard Ms Phillips’ reminders/enquiries to the Claimant about Contact Builder as being improper. Ms Phillips did have a genuine reason for wanting to know if the work was done, and had given an explanation of why it appeared to her that the work was not being done in the mornings.

224.3 Mr Williams response to the Claimant’s allegations of discrimination tended to brush off what she said, and he simply referred to – what he said was – the Respondent’s commitment to avoiding discrimination. That being said, the Claimant’s 12 August 2020 document made the bare assertion of discrimination, without giving an explanation of why she said the conduct in question was because of, or related to, race. Mr Williams can be criticised for not calling a meeting and giving the Claimant the opportunity to explain in more detail what basis (if any) she had for asserting that any of the treatment was connected to race (or any other protected characteristic). However, in the absence of such a meeting, there was not really much else for him to say in the response than to issue a bare denial (which from his point of view, was supported by the recommendation from HR, which said the allegations had been investigated and there was no case to answer).

[225]No actual comparator for these allegations has been shown. We heard no evidence about other dismissal appeals or grievances, and still less did we hear any specific examples of other people - who had appealed or raised grievance in circumstances which were not materially different to the Claimant’s – who had been granted a hearing, or a more detailed investigation or outcome letter.

[226]There are no facts from which we could reasonably conclude the investigation or outcome would have been different for a hypothetical comparator of a different race.226.1 It might have been “unfair” that Ms Smithson was reporting back to Mr Williams on the dismissal, but the very fact that she had been involved prior to the Claimant’s being informed about the dismissal on 30 July was relevant to how much (further) investigation Ms Smithson was likely to think was required on seeing the employee’s appeal. We do not think that the Claimant’s race was a factor in her decisions about what investigation was needed, or that it was something which influenced Mr Williams decision that the investigation had been adequate and that he would base his outcome letter on it. 48 of 50

226.2 Objectively, there were not many facts to investigate regarding Ms Phillips’s conduct. She and the Claimant met very few times, and, in any event, the complaint related to what Ms Phillips wrote in emails, not what she said face to face. It does not seem to us that more investigation was required, but, more relevantly, we are satisfied that Ms Smithson’s and Mr Williams’ opinions that the investigation was sufficient would not have been different for a hypothetical comparator of a different race.

226.3 The outcome letter addressed the main points of the Claimant’s appeal and grievance. Comments that Ms Phillips had claimed to be on good terms with a director, or that she did not expect the new sales and marketing director to play much of a role at FIV had nothing to do with the Claimant’s appeal or grievance and did not require a specific response. The Claimant’s claims that her work was adequate and/or that poor performance had not been raised previously were addressed (albeit not by agreeing with the Claimant) and the Claimant’s generalised assertions of discrimination were met with a generalised denial.

[227]The direct discrimination claims fail.

[228]In terms of the 12 August 2020 document being a protected act, the Respondent concedes that it was.

[229]Our comments about whether the investigation or explanations were adequate are the same for the victimisation complaints as for the direct discrimination complaints.

[230]For the appeal, there are no facts from which we conclude that the burden of proof should shift. The Respondent (through Mr Ginsburg and Ms Smithson) had decided that the Claimant would be dismissed, with notice, such that the notice would expire before the Claimant acquired two years’ employment. There are no facts from which we could conclude that the Respondent (through Mr Williams and Ms Smithson) would have taken a different approach to the appeal if, within the appeal, the Claimant had omitted any accusations of discrimination or harassment or breach of the Respondent’s diversity and equal opportunities policy. Likewise there are no facts from which we could conclude that the approach would have been different if the Claimant had not (by implication) stated an intention to bring an employment tribunal claim alleging that the Respondent had contravened the Equality Act.

[231]For the grievance, it does not seem that the Claimant directly alleged that Ms Phillips had harassed or discriminated because of race; the allegation seemed to be that she treated everybody badly. So that is one reason the burden of proof does not shift for that. However, in any event, we are entirely satisfied that the Respondent would not have dealt with the allegations about Ms Phillips any differently if the 12 August 2020 document had not included any of the information 49 of 50 which made it a protected act (the references to statistics, the use of the word “discrimination”, etc). The Claimant was an ex-employee, dismissed by Mr Ginsburg partly as a result of information received from Ms Phillips. However, the Respondent could read what Ms Phillips had written in the emails to the Claimant, and would not have upheld the grievance, or invited the Claimant to a meeting to discuss, or had a more detailed investigation or sent a more detailed outcome letter, even if the Claimant had simply alleged improper conduct, with no suggestion of breach of Equality Act.

[232]The victimisation claims fail. Outcome and next steps

[233]Since none of the complaints have been successful, it will not be necessary to arrange a remedy hearing.