Jwan AbdullahClaimantUniversity of GlasgowRespondent
Before
Employment Judge M A MacleodDate 26 May 2023
JUDGMENT
The Judgment of the Employment Tribunal is that the claimant’s application to amend her claim is allowed, but excluding her claim of automatically unfair dismissal set out at paragraphs 35 to 38 of her application to amend.
REASONS
[1]The claimant presented a claim to the Employment Tribunal on 13 June 20 2022, in which she complained that she had been subjected to discrimination on the grounds of pregnancy/maternity, and also on the basis of religion or belief.[2]The respondent submitted an ET3 in which they resisted all claims made by the claimant.[3]A Preliminary Hearing took place on 10 August 2022 by telephone conference call before Employment Judge Whitcombe, following which a Note was issued. In that Note, the Employment Judge directed that a Preliminary Hearing be listed on 29 September 2022 by Cloud Video Platform (CVP) to address the following issues: 30(a) The extent to which permission to amend the claim is required; 410 3216/22 Page 2(b) Whether, and if so to what extent, permission to amend the claim should be granted;(c) Whether any of the claims should be dismissed on the basis that they were presented outside the applicable jurisdictional time limits. If it appears to the Employment Judge conducting the hearing that it is not possible to make a fair decision on this issue at a preliminary stage then they may direct that it will instead be a matter for the final hearing.[4]At the Preliminary Hearing on 29 September 2022, the claimant appeared on her own behalf, and the respondent was represented by Ms Whyte, 10 solicitor.[5]Parties made submissions, which supplemented written submissions provided in advance of the Hearing. Their submissions are summarised below. The Tribunal will then address the three preliminary issues and set out a decision thereafter. Claimant’s Submissions[6]The claimant did not agree that she required permission to amend her claim. She said that she had already explained her position with regard to her financial loss and the reasons for her losing her job.[7]She submitted that she had provided a response to the respondent’s request for further clarification on 19 August 2022. Her previous solicitor did not provide all the necessary detail, and accordingly when the respondent requested that further detail, she provided it. She maintained that she had amended nothing but had simply added details, and a new health condition and work situation.[8]Before me, the claimant explained that she was looking for a new solicitor in July 2022, but her home insurance did not provide for legal assistance and therefore she had to make the amendment herself. She understood that in the ET1 she had to give simple details and then add further information later. 410 3216/22 Page 3[9]She said that as an unqualified person representing herself, she did not know legal terminology, and as a result, when she was criticised for not distinguishing between direct and indirect discrimination, she advised that the reason for this was simply that she did not understand what these words meant.[10]The claimant acknowledged that she was due to submit an application to amend on 15 July 2022, but said that prior to that date she emailed the Tribunal and then submitted her amendment on 19 July 2022. She said that when the respondent asked for more detail she supplied it, and added that she had left her current job due to her medical condition, as when she submitted the ET1 she was still working.[11]The claimant then sought to respond to the respondent’s submissions.[12]She said that the claim was presented on 13 June 2022. She had instructed a solicitor privately as she was awaiting confirmation from her home insurance provider that she could have their support in paying for legal 15 advice.[13]When she considered which category of claim to select on the ET1 (which she completed herself), she could not find any category covering emergency leave for dependants, so selected maternity as a category. She could not understand why the respondent was making an issue out of whether or not she had instructed a solicitor.[14]She submitted her ET1 while she was still working but when her health deteriorated, she said she had no choice but to resign.[15]The claimant said that she called a number of legal advisers. She did not receive legal advice from Monaco solicitors.[16]She did not add the new information until the respondent asked her to. There is nothing new in the information, in her opinion, and she merely did what they asked her to do. However, she advised that she would be happy to ignore the amended version and simply tell the Tribunal verbally what happened and how the respondent mistreated her. 410 3216/22 Page 4[17]She submitted that the respondent is trying to exploit her ignorance rather than checking whether the incidents had any effect on her, and has repeatedly alleged that she missed the 3 month deadline. She argued that the respondent put pressure on her and discriminated against her as a young mother. She never knew her rights, and had never worked in this country before. The pressure around young mothers was huge, and they did not respect her.[18]She remains unclear as to what the respondent says are the new claims being made. She reminded me that she is not a solicitor, and asked what was more important, the tick of the box or the setting out of the story. The reason for lodging her claim late was that she had suffered with her health and with financial loss.[19]She said that she did not know what each incident should be called. She could only explain what she has been through. The respondent continued to change her working times without considering how this would affect people with young children. She had been moved to a different work station due to being discriminated against, at which the finish time suited her; however, she was then moved from that work station to another due to an argument with another agent. She told her line manager that she could not work there due to migraines and the late finishing time, but she was instructed to continue doing so. She took the view that with 700 staff it would not be the end of the business if they moved her to another work station, but they wanted to make her life harder because she was commenting on the quality of the work being carried out.[20]Latterly she was not given a stable work station like other staff, but was moved from place to place as the work required.[21]The amendment sets out the background to her times being changed. The respondent simply wanted her to resign, she said.[22]With regard to other complaints, the claimant said that she has no access to HR data. Respondent’s Submission 410 3216/22 Page 5[23]For the respondent, Ms Whyte submitted, in her written submission, that in the original claim, the only claims identified were those of pregnancy/maternity discrimination and discrimination on the grounds of religion or belief.[24]The new claims added by the further specification by the claimant provided on 8 August 2022 were, she submitted:a. Automatic unfair constructive dismissal contrary to section 57A and 104 of the Employment Rights Act 1996, with reference to Regulation 20 of the Maternity and Paternity Leave etc Regulations 1999;b. Direct race discrimination contrary to the Equality Act 2010, andc. Indirect sex discrimination contrary to the Equality Act 2010.[25]Following the PH before Employment Judge Whitcombe, the claimant provided a further document on 24 August 2022, which the respondent understood to be the claimant’s application to amend based on what was said at that PH.[26]Where further particularisation has been provided, the respondent does not object to the additions proposed, but where the claimant seeks to amend her claim, the respondent objects.[27]Ms Whyte submitted that since the claimant did have some form of legal advice prior to the institution of the ET1, she ought to have been aware of the type of claims she could make at that point. The claimant says that Harper Macleod, solicitors, did describe to her the legal background, which must have been prior to the submission of the ET1.[28]She argued that the nature of the amendment sought is not minor, not relabelling, and seeks to introduce new causes of action.[29]She went on to state that the time limits applicable to this application are three months from the date of the unlawful act relied upon, or if more than one, the last in the series, or such other period as the Tribunal considers to be just and equitable. 410 3216/22 Page 6[30]It would not, she submitted, be just and equitable to extend time in this case.[31]The respondent denies, further, that there is any basis for finding that the allegations of discrimination amount to a continuing act.[32]She also argued that it cannot be said that it was not reasonably practicable for the claim to have been presented in time, in relation to the complaint of unfair constructive dismissal.[33]There is no explanation before the Tribunal as to why the claims were presented out of time. There is no new information available to the Tribunal to indicate that she was not aware of the claims prior to the presentation of the ET1. The claimant had the benefit of legal advice before submitting the ET1, and she did not tick the boxes relating to unfair dismissal, sex or race discrimination.[34]The claimant resigned in March 2022. She obtained her Early Conciliation Certificate from ACAS on 7 June 2022. There is no explanation as to why this had been brought separately. The last date upon which the claimant could have brought the claim was 6 July 2022.[35]The claimant, Ms Whyte submitted, has said that she is not a solicitor and is not aware of legal terminology. The claimant’s ignorance, however, does not mean that it was not reasonably practicable to bring the claim in time.[36]So far as the race discrimination claim is concerned, the further particulars set this out at paragraph 37, she said. This means that the claim is more than a year out of time, but it does not provide a basis for saying that the claimant’s treatment was related to her race. The claimant has not given a reason for the delay, and the onus is upon the claimant to provide an explanation as to why the claim was late or why it would be just and equitable to extend time to allow it to proceed.[37]With regard to the indirect sex discrimination claim, the claimant complains that she was required to adopt flexible working patterns. Ms Whyte submitted that the claimant’s employment ended on 22 March 2022, and that the last date for lodging her claim was 12 July 2022. 410 3216/22 Page 7[38]Ms Whyte submitted that the balance of hardship would fall upon the respondent if the claims were allowed to proceed, rather than upon the claimant if they were not. The delay was not caused by an act or omission of the respondent. The final hearing would be significantly extended by the inclusion of the new claims. Given that the Lighthouse laboratory was set up by the respondent to deal with many hundreds of thousands of PCR tests, it is now downsizing and she said it was likely that many of the potential witnesses for this case are no longer employed by the respondent.[39]She also argued that it would not be wrong for the Tribunal to consider the merits of the claim and weigh them in the balance even if it is not possible to find that there is no reasonable prospect of success. The claimant’s new claims are weak and unlikely to succeed. The Tribunal could make an assessment of the merits of those new claims. Claimant’s Response[40]The claimant made a number of comments in reply to the respondent’s submission. She said that she had “no idea” of the time bar provisions, as nobody had told her that there was any such requirement. When she was told about the grievance hearing by the respondent she said that that was the first time she had heard about such things. She said that she thought that she had to await the appeal outcome before she could raise an ACAS certificate. She was told on 29 April 2022 that her appeal had been unsuccessful, and she went to ACAS herself, and then completed her ET1 on her own.[41]With regard to the comment by the respondent that the claimant had had the benefit of legal advice, she said that all she was advised by her former solicitor was to keep it short, to submit the form herself and that her solicitors could not give her advice for free.[42]The claimant then stressed that the reason she had resigned was that she had been mistreated by the respondent, who had given priority to the people who had treated her badly. She holds a PhD, and considered that she should be useful to this country and to the respondent as she had a lot of 410 3216/22 Page 8 knowledge to give. She did not know to mention the discrimination aspects of her case at the outset; she just wanted to tell her story and her feelings, and how this had affected her life. Discussion and Decision[43]The first issue to determine is the extent to which permission to amend is required, and the second, to determine whether or not permission should be granted.[44]In assessing this, it is necessary to summarise the terms of the original claim, and then the application itself.[45]In paragraph 8.2 of the ET1, the claimant set out a number of complaints which she wished to make, pointing to a series of incidents which the claimant identified as having abused, harassed and insulted her.[46]Those were:a. February 2021 – the University decided to forget about a complaint of discrimination by the claimant;b. July 2021 – the claimant was offended by a member of staff, who admitted doing so; and her manager moved her to another work station despite knowing that this would cause huge stress for her in relation to child care;c. Having been contacted by Marie Claire, she moved the claimant to 20 another shift;d. She was accused of working hard to impress managers;e. Sick leave was rejected when her son was diagnosed with shingles, on 15 August 2021;f. September 2021 – hospital appointment leave rejected;g. September to October 2021 – laboratory started changing times, which placed her under huge stress due to child care struggles; 410 3216/22 Page 9h.9 September 2021 – when suffering Covid symptoms, she was told to sit in a car and wait 4 hours for a test result;i. December 2021 – a colleague bullied her by using inappropriate language to her while she was running the work station;j. Manager told her not to point at him;k. The claimant’s grievance and appeal were both rejected;l. The respondent’s recruitment and selection processes were corrupt.[47]It should be noted that it is not entirely clear what the last of these points referred to. However, the Tribunal informed the claimant that further information would be required, and accordingly the claimant was given the opportunity to clarify and particularise her claims.[48]It is also noted that while the claimant states that she presented the claim herself, she did add the name of a solicitor from Harper Macleod LLP as her representative, suggesting that she had the advice and support of that solicitor when drafting her claim. It is now clear that the claimant’s position is that while she had conversations with that solicitor she proceeded to draft and submit the ET1 on her own.[49]The claimant then submitted a document in her email of 19 August 2022 entitled “Further Specification”.[50]Within that document, which ran to 43 paragraphs over 6 pages, the claimant set out a background to her claim, and then included a number of headings relating to claims she wished to make.[51]The document provided considerable detail, including names and dates of the incidents relied upon. The legal claims relied upon were specified very precisely, in that they were defined according to the statutory legal definitions relevant to each claim. It is not clear, and the claimant did not in the Hearing before me make it clear, whether this was drafted by herself or by a solicitor, or perhaps a combination of both. However, the nature of the 410 3216/22 Page 10 document suggests very strongly that legal advice was obtained prior to its submission.[52]The heads of claims identified were as follows.[53]Firstly, the claimant asserted that her dismissal was automatically unfair contrary to section 104 of the Employment Rights Act 1996, namely that she had asserted a statutory right (raising a grievance).[54]Secondly, the claimant asserted that she had been directly discriminated against on the grounds of religion and/or race (the heading is incomplete but the text below completes the sentence). She asserted that she had been subjected to discriminatory remarks about her religion and her decision to abstain from the consumption of alcohol, tobacco and shisha; that she had raised a number of concerns about working hours, her treatment by colleagues and the handling of leave requests. She maintained that had she not been Muslim or of Kurdish ethnicity she would have been moved work stations on request, her complaints would have been taken seriously and action would have been taken against her colleagues. In addition, she would have had her requests for time off granted.[55]She also argued that she was overlooked for promotion and alternative roles in favour of less experienced and qualified colleagues.[56]Thirdly, the claimant asserted that she had been subject to indirect sex discrimination. That was the heading of the relevant section. However, within the body of that section, she referred to direct discrimination, but it is plain that this was a typographical error, since she relied upon section 19 of the 2010 Act, in which indirect discrimination is prohibited.[57]The PCP relied upon was that she had to adopt flexible working patterns and had her hours regularly changed, which placed a female person at a substantial disadvantage compared to males. The wording of the paragraph is slightly confusing. She refers to her ability to accommodate the alternative hours, without specifying what those hours were; and identified the requirement to work alternative hours was a proportionate means of achieving a legitimate aim. At this stage I simply note that the question is 410 3216/22 Page 11 not whether some alternative action would have amounted to a proportionate means of achieving a legitimate aim – that would properly be characterised as a reasonable adjustments claim – but whether the respondent was able to justify the imposition of the PCP objectively.[58]Having delineated the differences between the original claim and the proposed amendment, it is necessary to determine the extent to which that document amounts to an amendment or merely the provision of further particulars.[59]The original claim complained of pregnancy or maternity discrimination, as well as religion or belief discrimination, in the boxes ticked at paragraph 8.1.[60]It appears to me that the claimant misunderstood the meaning of pregnancy or maternity discrimination. She seems to me to be seeking to rely upon her status as a mother, rather than as a person on maternity leave or pregnant, in this matter. In the acts she seeks to complain of in her ET1, she does make reference to her belief that she was treated less favourably because of her status as a mother with young children and child care needs, of which the respondent was aware but took no account. That is part of the substance of the original claim.[61]However, it is appropriate to deal with each of the claims individually.[62]With regard to the claim for automatically unfair dismissal, based on constructive dismissal, the claimant presented her claim to the Tribunal on 13 June 2022, but made no mention therein of having resigned her employment, other than to identify her employment as having come to an end as at 24 March 2022.[63]It is plain that the claimant knew, when she presented her ET1, that she had resigned, but made no mention at all of the matter as part of her complaints.[64]It is necessary for the claimant to seek to amend her claim in order to incorporate a claim for automatically unfair dismissal, since it does not appear in the ET1. 410 3216/22 Page 12[65]It is, in my judgment, a significant new claim. It introduces the need for new evidence in order to focus upon the events leading to, and precipitating, the claimant’s resignation at the point when it happened; and to assist the Tribunal to determine whether or not her resignation arose not only as a result of a repudiatory breach, or repudiatory breaches, of the contract of employment by the respondent, but also because of her having exercised a statutory right, namely raising a grievance.[66]The reason for the timing of the application to amend is quite unclear. The claimant knew that she had resigned when she presented her ET1. By her own admission, she had sought legal advice, and, without disclosing the nature of that advice, had had conversations with a solicitor which, if nothing else, focused upon what she needed to say and do in order to present her claim to the Tribunal. Even if she did not ask her legal adviser for advice about how to present a claim for automatically constructive unfair dismissal, she had the opportunity to do so, and there is no explanation as to why she did not include it within the ET1.[67]I consider the issue of time limits below, in reviewing all of the aspects of the application to amend.[68]The next heading was that of discrimination on the grounds of religion and/or race.[69]In the original claim, the claimant ticked the box marked religion and/or belief, but in the substance of the complaint made no reference either to the religion to which she belonged nor to the specific actions which were directed against her on that ground.[70]Similarly, in the ET1, there was no reference to the claimant’s race nor to her ethnicity, nor did it contain any allegations which could be interpreted as complaints of race discrimination.[71]In my judgment, this is another significant and substantial amendment sought by the claimant. Although the claimant did mark the box suggesting that she wished to make a claim on the grounds of religion and belief, she did nothing more to expand upon or specify that claim in her ET1. The 410 3216/22 Page 13 application to amend here relates to her assertion that she was discriminated against on the basis that she was a Muslim, and to certain lifestyle decisions she had made as a result of her religious belief.[72]There is nothing in the ET1 to indicate that the claimant intended to complain of these matters. The amendment seeks to introduce new allegations of fact which were not previously pled. The only indication was the claimant’s ticking of the box.[73]So far as the allegation of race discrimination is concerned, the claimant has now sought to base her allegation on her Kurdish ethnicity. Not only did she not tick the box relating to race in the ET1, she also made no reference in the specific allegations to her race or to any actions which she regarded as discriminatory on the grounds of race. The allegations in the claim form relate to mistreatment which she attributes to her status as a working mother.[74]Accordingly, this is a significant new set of allegations, and both claims are, in my judgment, new claims not previously foreshadowed in the ET1 in any meaningful way.[75]The events which are referred to by the claimant all took place prior to her presenting the claim, and therefore, as above, it is entirely unclear why she did not include these allegations within the ET1, particularly given that she had access to legal advice.[76]So far as the third heading is concerned, namely indirect sex discrimination, there is no doubt that the ET1 sets out complaints which relate to her treatment as a working mother. Although being a mother is not a protected characteristic under the Equality Act 2010, it is clear, in my view, that the ET1 presents a series of complaints which relate to her difficulties with the hours she was required to work due to child care responsibilities.[77]The claimant’s further specification states that the claimant was required to adopt flexible working patterns at short notice, and that that placed her as a woman at a substantial disadvantage. 410 3216/22 Page 14[78]While there is a slight lack of clarity as to the effect of the disadvantage as pled, it is my judgment that this is simply a clarification of the complaints already made, in an attempt to identify and classify those complaints under section 19 of the 2010 Act. As a result, I regard this aspect of the claimant’s further particulars as a simple re-labelling exercise, and of itself, not an alteration to the pleadings which requires the Tribunal’s permission as an amendment to the claim.[79]The second issue, then, is whether the claimant’s application to amend, encompassing the claim of automatically unfair dismissal and the claims of discrimination on the grounds of religion and race, should be granted.[80]According to the Selkent test, the Tribunal, having considered the different aspects of the amendment as above, must determine whether or not to grant the application, weighing up the potential hardship suffered by each party.[81]In determining this matter, it is important to consider carefully the third issue before this Hearing, namely the time bar implications of the new claims, as well as the issue of hardship.[82]In the case of the claim of automatically unfair dismissal, the appropriate test in respect of time limits is to consider whether it was not reasonably practicable for the claim to have been presented in time, and if not, whether it has been presented within such further time as the Tribunal considers reasonable.[83]In my judgment, it cannot be said, based on the claimant’s submissions and the information available, that it was not reasonably practicable for the unfair dismissal claim to have been pled at the time when the ET1 was presented, and thus within three months of the claimant’s resignation. The unfair dismissal claim is based upon facts which must have been within the claimant’s knowledge at the point when she lodged her Tribunal claim; she had conversations with an expert legal adviser competent in the field of employment law; she is herself a plainly intelligent and articulate person with access to the internet and the information contained therein on websites 410 3216/22 Page 15 concerning Employment Tribunals and the law surrounding the presentation of a claim thereto; and there is no reason advanced by her to explain why she could not have presented the claim in time, other than that she did not understand that it was necessary to set out her full claim within the ET1.[84]Accordingly, it is my view that the claimant has not met the onus upon her to demonstrate that it was not reasonably practicable for her to have presented her unfair dismissal claim in time. In these circumstances, the claimant’s application to amend her claim is refused, insofar as it seeks to introduce a claim of automatically unfair dismissal.[85]In addition, the hardship which falls upon the claimant in being prevented from taking up this claim is less significant than the hardship which would be incurred by the respondent were it to be allowed. Although the claimant would lose the opportunity to make a new claim in addition to her existing complaints, the respondent would be faced with an entirely new claim, focused on the claimant’s resignation and the events which specifically led to that. It is of a different character to the discrimination claims which are already in place, and in my judgment, it is not in the interests of justice to allow her to proceed with this particular claim.[86]So far as the claimant’s attempt to introduce a claim of religious and race discrimination is concerned, a different test must be applied, namely whether the claims have been presented within such a time as the Tribunal considers just and equitable.[87]Although the claimant intimated a claim of religious discrimination in her ET1, she gave no substance to that claim; and her claim of race discrimination is entirely new in the application to amend.[88]Taking into careful consideration the authorities to which the respondent referred me, it is clear that while the test is a less stringent one than that for unfair dismissal, the courts are of the view that time limits are present for a reason and that permitting such an application late may be seen to be the exception rather than the rule. 30 410 3216/22 Page 16[89]The allegations under this heading relate to a period prior to the claimant’s resignation, but unfortunately it is not clear when it is the claimant alleges she was subjected to this treatment. In paragraph 39, the claimant says that she “has been” subjected to discriminatory treatment on the grounds of her religion and of her race; and that she raised a number of concerns 5 “throughout her employment”. She also complains that she was overlooked for promotion and alternative roles in favour of candidates with much less experience.[90]On the other hand, the claimant was only employed by the respondent for a short period of time, from 13 January 2021 until 24 March 2022. Any allegedly unlawful acts must therefore have taken place no earlier than 13 January 2021 on the basis of the amendment. She does suggest that the acts amounted to a series of continuing acts, taking her to the point where she resigned, which did come within the three month time limit, including ACAS early conciliation, for the presentation of the claim. That is a matter on which it is not currently possible to make any determination, and will require to be reserved for the Hearing on the Merits.[91]On balance, I am persuaded, with some hesitation, that the complaints which the claimant is making under these headings are consistent with the complaints set out in the ET1, albeit they are new claims not previously pled, and based on facts not previously alleged. As a result, it seems to me that the balance of hardship is of less clear application to the respondent in this exercise. While the respondent will have to face more specific allegations of unlawful discrimination, the period during which those incidents must have occurred is a relatively short one and therefore the compass of the evidence at any Hearing on the Merits is not likely to be expanded widely. The allegations relate to the same circumstances. I accept that they are not as specific as they might be, and therefore the precise identities of those against whom they are directed are not clearly set out. That can be addressed by ordering the claimant to be more specific both about who acted in this way, and when they did so. 410 3216/22 Page 17[92]The proceedings are at a sufficiently early stage to allow the respondent to carry out a full investigation into these matters. I do not consider that the Hearing is liable to be lengthened by a significant period of time, and in my judgment the claimant would face much greater hardship if she were deprived of the opportunity to advance her claims of discrimination on the grounds of religion and race, than the respondent would if they required to defend themselves against such claims.[93]I do take account of the fact that the claimant had access to legal advice at the time of presenting her ET1, but it is not clear precisely what advice she received about the content which she should include within the ET1.[94]This is a difficult matter to balance, but in the end I have come to the conclusion that the claimant’s application to amend should be granted insofar as seeking to add complaints of religious and race discrimination.[95]Finally, it is my view that the third heading of the further and better particulars does not amount to a new head of claim, and does not require the Tribunal’s permission to amend the claim.[96]Accordingly, it is my judgment that the claimant’s application to amend the claim should be granted, but only in part, and only to the extent set out in paragraphs 1 to 36, and 38 to 43. The factual allegations made in those paragraphs which may be taken to relate to the claimant’s resignation will be treated as background information, and do not form the basis of a valid claim for automatically unfair constructive dismissal. 410 3216/22 Page 18[97]An Order will be issued by the Tribunal to require the claimant to provide more specific information, particularly relating to the identity of the individuals involved and the dates upon which the unlawful acts allegedly occurred, as to the claimant’s claim of religious and race discrimination. Employment Judge: M MacLeod Date of Judgment: 11 October 2022 Entered in register: 14 October 2022 and copied to parties EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4103216/2022 Hearing Held at Glasgow on 17, 18, 19, 20 and 21 April 2023 Employment Judge: M A Macleod Tribunal Member: J Ward Tribunal Member: J Gallacher Jwan Abdullah University of Glasgow Claimant In Person Respondent Represented by Ms D Miller Solicitor[99]The claimant presented her claim to the Employment Tribunal on 13 June 2022.[100]She contacted ACAS on 18 May 2022 to notify them of her intention to submit a claim to the Employment Tribunal. The Early Conciliation Certificate was issued by ACAS on 7 June 2022 (13).[101]This employment represented the claimant’s first work in the UK since she graduated, and she said in evidence that she had no information about “rules and regulations”. In her employment with the respondent, she felt she had to tolerate a certain amount of difficulty but when she decided that she had reached the point where she wanted to act, she spoke to a number of colleagues who, she knew, had taken the respondent to court (understood in this instance to mean the Employment Tribunal). They told her about ACAS and the need to contact them before presenting a claim to the Tribunal. She thought at the time that she needed to await the final outcome of her grievance before lodging a claim with the Tribunal.[102]When she spoke to ACAS on 18 May 2022, the conciliator told her that the first few incidents were time-barred. However, having sought advice from the Strathclyde University Law Clinic shortly before this Hearing, the claimant learned that if there were “serial incidents” that could extend the time limits. She said that when she arrived in the UK she had no knowledge of employment rights, as “there are no employment rights in my country”. She was able to find out about the 3 months time limit from reading on the internet. She believes that the respondent exploited her ignorance, and that nobody told her to go to Human Resources, apart from Mr Alam.[103]When the appeal was concluded, she said she started looking at the internet to find out about time limits, and tried contacting solicitors; however, she could not afford to pay a solicitor to act on her behalf. Submissions[104]Ms Miller presented a lengthy written submission on behalf of the respondent, to which she spoke. The claimant responded verbally to the respondent’s submission.[105]The Tribunal took into account the full submissions of both parties but does not consider it necessary to set them out in any detail at this stage in the Judgment. Reference to submissions will be made below as the Tribunal considers appropriate. The Relevant Law 1 06. Section 1 9 of the Equality Act 201 0 provides: “(1) A person(a) (A) discriminates against another(b) (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's. (2) For the purposes of sub-section (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if - (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,(c) it puts, or would put, B at that disadvantage, and(d) A cannot show it to be a proportionate means of achieving a legitimate aim.”
The Relevant Law
[107]Section 23(1 ) of the 2010 Act provides that “On a comparison of cases for the purposes of section 13, 14 or 19 there must be no material difference between the circumstances relating to each case.”[108]Section 1 3(1 ) of the 2010 Act provides: “A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. ”[109]The Tribunal also had reference to section 26(1) of the 2010 Act: “A person(a) (A) harasses another(b) (B) if - (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of- (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B...”
The Issues
[110]The List of Issues (111) produced by the parties set out the claims which were for determination by the Tribunal. They were largely agreed, though the claimant had sought to add 2 further issues at paragraphs 18 and 19. We deal with all of the proposed Issues in our decision section and therefore it is appropriate to set them out in full at this stage.[111]The Issues for determination by the Tribunal are as follows: Section 19 of the Equality Act 2010 - Indirect Sex Discrimination 1. The claimant claims that the respondent operated the following provisions, criteria or practices (PCPs) and applied those to employees including the claimant:a. refusal of permission to take parental leave, or time off for dependants, or their medical appointments (PCP 1);b. altering the claimant’s start time (PCP 2) (together, the PCPs). 2. The respondent accepted that PCP 2 exists. Does PCP 1 exist? 3. If admitted, or found to exist, in each case, did the PCP apply equally to female and male applicants? 4. If admitted, or found to exist, in each case, what is the scope of the pool for comparison when considering the question of particular disadvantage? 5. If admitted, or found to exist, in each case, did the PCP put women in the pool at a particular disadvantage when compared to men? a. If so, what was that disadvantage? 6. If admitted, or found to exist, in each case, did the PCP put the claimant at that disadvantage? 7. If admitted, or found to exist, in each case, has the respondent justified the PCP by showing it to be a proportionate means of achieving a legitimate aim? 8. Has the claimant established that the PCPs were an ongoing state of affairs on 13 June 2022 (when the claimant amended her claim)? a. If not, are the claimants claims insofar as they relate to the PCPs out of time? (section 120 of Equality Act 2010) b. If the claimant’s claims as they relate to the PCPs are outwith the normal 3 month time limit, is it just and equitable for the Tribunal to exercise its jurisdiction to allow the PCPs to be considered by the Tribunal? Section 13 of the Equality Act 2010 - Direct Race Discrimination 9. Did the respondent treat the claimant less favourably than it would treat others in not materially different circumstances because of the claimant’s race (middle eastern ethnic origin) by subjecting the claimant to the following treatment? a. the alleged refusal to permit the claimant to take time off on 18 August 2021 to attend to her son who was unwell; b. the alleged refusal to permit the claimant to take time off in September 2021 for the claimant to attend an MRI scan;c. the discussion on 3 February 2021 with a colleague referred to as ‘June’ or ‘JS’, about smoking shisha;d. the discussion on 3 February 2021 with a colleague referred to as ‘June’ or ‘JS’, about chips;e. the discussion on 3 February 2021 with a colleague referred to as ‘June’ or ‘JS’, about swimming and wearing a bikini;f. Mr Glassford’s alleged mishandling of the claimant’s complaints about the discussion with JS on 3 February 2021 ;g. the respondent’s alleged failure to appoint the claimant to Workstation Lead;h. the alleged dispute with a colleague referred to as ‘Gentian’ or ‘GX’ in July 2021 (noting that it is unclear what protected characteristic the claimant is relying upon in this complaint);i. the alleged instruction by Mr Alam to attend work with Covid- 19 symptoms on 9 September 2021 ;j. the discussion with Marc Jones in December 2021 whereby he allegedly shouted at the claimant and asked her not to point at him; andk. the respondent’s alleged failure to appoint the claimant to Workstation Lead from February 2021 until February 2022. 10. If so, was the alleged less favourable treatment because of the claimant’s race? 11. Are the claimant’s direct discrimination claims set out at (a) to (j) above out of time? (section 120 of the Equality Act 2010) a. Were these claims lodged within 3 months of the act of discrimination, or last act of discrimination if there is found to be conduct extending over a period of time? b. If not, is it just and equitable for the Tribunal to exercise its discretion to allow the direct race discrimination claims to be considered by the Tribunal? Section 13 of the Equality Act 2010 - Direct Religious Belief Discrimination 12. Did the respondent treat the claimant less favourably than it would treat others in not materially different circumstances because of the claimant’s religious beliefs (Muslim) by subjecting the claimant to the following treatment: a. the discussion on 3 February 2021 with a colleague, referred to as ’June’ or US’, about drinking alcohol; b. the discussion on 3 February 2021 with a colleague referred to as ‘June’ or *JS*,about taking off a jumper; c. the discussion on 3 February 2021 with a colleague referred to as ’June’ or US’, about arranged marriage; and d. the alleged dispute with a colleague referred to as ’Gentian’ or ‘GX’ in July 2021 (noting that it is unclear what protected characteristic the claimant is relying upon in respect of this complaint). 13. If so, was the alleged less favourable treatment because of the claimant’s religious beliefs? 14. Are the claimant’s direct religious belief discrimination claims set out in (a) to (d) above out of time? (section 120 of the Equality Act 2010) a. Were these claims lodged within 3 months of the act of discrimination, or last act of discrimination if there is found to be conducting extending over a period of time? b. If not, is it just and equitable for the Tribunal to exercise its discretion to allow the claims set out at (a) to (d) above to be considered by the Tribunal? Section 26 of the Equality Act 2010 - Harassment 15. Did the respondent engage in unwanted conduct related to the claimant’s race and/or religious beliefs by subjecting her to: a. the alleged conduct at 9(a) to (e), (h), (i) and 12 (a) to (d) above? 16. If so, did the conduct have the purpose or effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant? 17. Are the claimant’s harassment complaints out of time? (section 120 of the Equality Act 2010) a. Were these claims lodged within 3 months of the act of discrimination, or last act of discrimination if there is found to be conduct extending over a period of time? b. If not, is it just and equitable for the Tribunal to exercise its discretion to allow the claims set out at (a) to (d) above to be considered by the Tribunal? Claimant’s Supplementary Issues (not agreed by the Respondent) 18. On 3 December 2021, the claimant was allegedly subject to bullying by a colleague, referred to as ‘ES’, whereby he allegedly used inappropriate language during a dispute with the claimant 19. These issues and unfairness led to a severe stress and anxiety for the claimant as a result she was admitted to hospital while she was at work diagnosed with a heart problem and needed an urgent operation which was done on 19 January 2023 at the Golden Jubilee Hospital, Glasgow. This can be supported with hospital and medical reports.[112]We will deal with the issues as set out above, and determine the relevance of issues 18 and 19, which appear to have been drafted by the claimant and therefore adopt a different form to the others, in the decision section which follows. Discussion and Decision[113]We seek to adopt the approach put forward in the List of Issues. It is important for parties, and perhaps more acutely the claimant, to understand that the Tribunal will only address those claims which are properly before us and have been presented by the claimant. The List of Issues does represent a comprehensive categorisation of the claims before us. The claimant appeared to us to struggle with the concept that the Tribunal is restricted in the matters it may address, based on the claims which are made in writing and presented to us, but we cannot and will not explore matters which are outwith the claims made by her.[114]Before addressing the issues, we wish to make some observations on the evidence which we have heard in this case, and on the witnesses. We consider the respondent’s witnesses before the claimant for simplicity.[115]Lynn Brown was a straightforward witness whose involvement in this matter was largely administrative rather than managerial, and she did not bear responsibility for many of the decisions which were made affecting the claimant.[116]We found Sandy Glassford to be a calm and honest witness, and in the face of particular allegations made by the claimant, to be unperturbed and ready to respond. His evidence was of assistance to the Tribunal and we were prepared to accept it as truthful.[117]Mahmoud Alam emerged from his evidence as an impressive witness. He was prepared to accept criticism where it was justified, but was able to explain his position clearly and articulately. We found his evidence believable and persuasive.[118]Marc Jones’ involvement in this matter was relatively brief, but his evidence about his encounter with the claimant was helpful and clear. It was put to him by the claimant that at the end of his conversation with her, he had told her that he would get back to her, but had never done so; to which he responded that he regretted that, and apologised.[119]Ruth McLaughlin was a very impressive witness, in our view. She had an excellent grasp on the issues in which she was involved, and was able to explain her position and actions very well. We found her to be a patently honest witness whose professionalism was very evident from her dealings with the claimant and the way in which she carried such heavy responsibility in the setting up and development of the Lighthouse Laboratory.[120]The claimant was generally a good witness, who was able to answer questions very fully and explain her position tp the Tribunal. We did not consider that she was seeking in any way to mislead the Tribunal, but we found that her perspective on the events she was describing had been affected by a degree of anger and distress at what she perceived amounted to unfair and at times discriminatory treatment. To some extent, we considered her distress to be justified - the conversation which took place in February 2021 with Ms Sillars was one which she should not have had to put up with, and it was right that the respondent dealt with it swiftly and decisively. However, it was apparent to us that the claimant had a tendency to dwell on perceived slights and injustices rather than to take a broader perspective, so that the fact that others who witnessed that conversation raised it with management before she did, in order to demonstrate support to her.[121]One example of this perspective can be seen in her interpretation of Mr Alam’s comments on the Teams chat in which she raised a number of comments and questions about what she considered to be poor practice or processes. In our view, Mr Alam’s comments were plainly supportive and not critical, but the claimant insisted that she could detect a degree of annoyance and anger in them. This was simply not a fair or accurate interpretation of Mr Alam’s comments, which clearly, in our view, noted the claimant’s observations and sought to ensure that she was able to raise them in the correct place for the benefit of the laboratory as a whole.[122]Our overall conclusion was that while the claimant was not in any way being untruthful in her evidence, we could not entirely rely upon the accuracy of what she was saying. Where her description of an incident was contradicted by another - such as, for example, when she denied that she had engaged in shouting with Eugene or Gentian - we concluded that her evidence was not entirely reliable, and that she was defensive of her own position to the extent that she sought to avoid criticism of her actions at all costs.[123]The claimant is a highly-qualified scientist, of which she is justly proud, but we might observe that that pride perhaps led her to consider her colleagues to have a lower professional standing than hers, which made it impossible for her to understand why another might have been appointed to Workstation Lead ahead of her. In our judgment, this could explain her tendency to return repeatedly to her insistence that others who had worked in a fast-food restaurant or as an air steward could not possibly be seen to be more suitable than her for the position, notwithstanding that the respondent’s clear position was that it was more important that an individual have managerial skills and experience, as well as the ability to build a team and communicate effectively with them, than that they were highly qualified as a scientist.[124]We turn then to the Issues. Section 19 of the Equality Act 2010 - Indirect Sex Discrimination 1. The claimant claims that the respondent operated the following provisions, criteria or practices (PCPs) and applied those to employees including the claimant:a. refusal of permission to take parental leave, or time off for dependants, or their medical appointments (PCP 1);b. altering the claimant’s start time (PCP 2) (together, the PCPs). 2. The respondent accepted that PCP 2 exists. Does PCP 1 exist? 3. If admitted, or found to exist, in each case, did the PCP apply equally to female and male applicants? 4. If admitted, or found to exist, in each case, what is the scope of the pool for comparison when considering the question of particular disadvantage? 5. If admitted, or found to exist, in each case, did the PCP put women in the pool at a particular disadvantage when compared to men? a. If so, what was that disadvantage? 6. If admitted, or found to exist, in each case, did the PCP put the claimant at that disadvantage? 7. If admitted, or found to exist, in each case, has the respondent justified the PCP by showing it to be a proportionate means of achieving a legitimate aim? 8. Has the claimant established that the PCPs were an ongoing state of affairs on 13 June 2022 (when the claimant amended her claim)? a. If not, are the claimant’s claims insofar as they relate to the PCPs out of time? (section 120 of Equality Act 2010) b. If the claimant’s claims as they relate to the PCPs are outwith the normal 3 month time limit, is it just and equitable for the Tribunal to exercise its jurisdiction to allow the PCPs to be considered by the Tribunal?[125]It is necessary, in the first instance, to determine whether or not the respondent applied the PCPs alleged.[126]PCP 1 was the refusal of permission to take parental leave, or time off for dependants, or their medical appointments.[127]It is understood that this refers to 2 particular incidents: firstly, the alleged refusal to allow the claimant to take time off to look after her son with shingles; and secondly, the alleged refusal to allow the claimant to take time off to attend an MRI scan.[128]In neither case does the evidence demonstrate that the claimant was refused permission to take time off. With regard to her son’s illness, it is plain that there was some discussion between herself and her line manager about how long she would need to be detained at home, but at the end of that discussion, it was clearly agreed by the claimant and her line manager that a half day would suffice. The claimant described the arrangement at the time as being “perfect". We found it unaccountable that the claimant would now seek to argue that she was prevented or prohibited from taking time off.[129]Further, however, it is not clear to us that this amounts to a PCP. There was no evidence that if there was a refusal to allow her time off, that that refusal formed some kind of policy or practice which the respondent would apply to others. There is no doubt that the respondents have and operate a policy on taking emergency leave. There is nothing to suggest that this policy was not properly applied. The claimant had access to all policies operated by the respondent but for her own reasons did not read them at the time. There was no provision, criterion or practice to the effect that staff would not be permitted time off to look after an ill child; and in any event, as we have found, there was no refusal in this case anyway.[130]The second issue was that the claimant appeared to suggest that the respondent refused her time off to attend an MRI scan at the hospital. That was plainly incorrect. She was permitted to take the time off, though Mr Alam, in a busy laboratory, thought it appropriate to ask her how long she thought she would be. There is no evidence that Mr Alam would have refused her the time off if she had told him that it would be 3 hours. It was simply, in our view, so that he would have an understanding of whether, and if so roughly when, she would return to duty. As it turned out, when she did return, she was advised by Mr Alam to take a break before resuming her work. There is no PCP here alleged. The claimant appears to be arguing that she was, in fact, treated differently to others, which may explain why she makes this claim as a complaint of direct discrimination as well.[131]PCP 2 was the requirement imposed upon the claimant to alter her start time. This formed part of a general change to try and rationalise the different start times in the different workstations, which were interdependent in order to be supplied with a constant flow of work. This took place on Skerryvore shift with effect from 1 September 2021.[132]The respondent accepts that PCP 2 exists as a PCP.[133]In our judgment, it was applied equally to male and female staff. There is no evidence that either male or female personnel were treated differently in the introduction of the start time change.[134]The pool for comparison, in our view, is simply lab scientists employed to work on the same shift at the claimant.[135]We accept that the PCP would affect women more than men, on the basis that as a group, women take a greater share of the burden of childcare than men.[136]It is necessary then to establish whether or not the claimant was personally disadvantaged by the application of the shift change. Her evidence confirmed that she was never personally required to work later than 2pm on a weekday, and 2.30pm on a Saturday, with the consequence that she was never required to be late to collect her children. As a result, there was no actual disadvantage which accrued to the claimant.[137]That being the case, we have concluded that the claimant’s claim for indirect discrimination on the grounds of sex must fail. She has not demonstrated that PCP 1 was applied to her, nor that PCP 2, having been applied to her, caused her to sustain any personal disadvantage, far less a substantial disadvantage.[138]The remaining issues do not, in our judgment, require to be addressed, following these conclusions.[139]We deal with the time bar points below, taking into account each of the different categories of claim together. Section 13 of the Equality Act 2010 - Direct Race Discrimination 9. Did the respondent treat the claimant less favourably than it would treat others in not materially different circumstances because of the claimant’s race (middle eastern ethnic origin) by subjecting the claimant to the following treatment?a. the alleged refusal to permit the claimant to take time off on 18 August 2021 to attend to her son who was unwell;b. the alleged refusal to permit the claimant to take time off in September 2021 for the claimant to attend an MRI scan;c. the discussion on 3 February 2021 with a colleague referred to as ‘June’ or ‘JS’, about smoking shisha;d. the discussion on 3 February 2021 with a colleague referred to as ‘June’ or US’, about chips;e. the discussion on 3 February 2021 with a colleague referred to as ‘June’ or US’, about swimming and wearing a bikini;f. Mr Glassford’s alleged mishandling of the claimant’s complaints about the discussion with JS on 3 February 2021 ;g. the respondent’s alleged failure to appoint the claimant to Workstation Lead;h. the alleged dispute with a colleague referred to as 'Gentian’ or ‘GX’ in July 2021 (noting that it is unclear what protected characteristic the claimant is relying upon in this complaint);i. the alleged instruction by Mr Alam to attend work with Covid-19 symptoms on 9 September 2021 ;j. the discussion with Marc Jones in December 2021 whereby he allegedly shouted at the claimant and asked her not to point at him; andk. the respondent’s alleged failure to appoint the claimant to Workstation Lead from February 2021 until February 2022. 10. If so, was the alleged less favourable treatment because of the claimant’s race? 11. Are the claimant’s direct discrimination claims set out at (a) to (j) above out of time? (section 120 of the Equality Act 2010) a. Were these claims lodged within 3 months of the act of discrimination, or last act of discrimination if there is found to be conduct extending over a period of time? b. If not, is it just and equitable for the Tribunal to exercise its discretion to allow the direct race discrimination claims to be considered by the Tribunal?[140]It is necessary, in considering the claims made under this heading, to determine whether or not the complaints made by the claimant can be upheld as a matter of fact, based on the evidence heard.[141]As a result, we address each of the complaints in turn.[142]The first allegation is that the respondent refused to permit the claimant to take time off on 18 August 2021 to attend to her son who was unwell.[143]It is important to note that the claimant does not complain that the respondent failed to give her “emergency leave” or another particular type of leave, but that the respondent refused to permit her to take time off (however categorised) on 18 August 2021 .[144]On the evidence, the crucial date was in fact 19 August 2021. The claimant emailed the respondent, including Mr Alam, on 18 August 2021 after the conclusion of her shift that day, at 1548 hours (214) requesting leave to look after her son who was suffering from shingles. There followed an exchange of correspondence (408/9) in which Mr Alam confirmed that the claimant could take a half day off the following day (408), whereupon the claimant replied (409) that “half day is perfect for me .[145]We failed to understand what the claimant was complaining about here. She asked for time off on 19 August 2021; she was granted time off. She agreed the length of time off with Mr Alam.[146]The claimant has simply failed to prove that the respondent refused to permit her to take time off. Indeed, on her own evidence, they agreed to permit her to take time off. That it may not have been as long as she would have liked, or would like retrospectively, is not the issue. She complained that they did not let her take time off to look after her son, and the evidence plainly shows that they did.[147]The next issue related to the claimant’s request for time off in September 2021.[148]The claimant requested time off to attend an MRI scan. Mr Alam asked her to confirm how long she would be away from the workplace, in order to understand the impact upon the work being carried out. There is no evidence that Mr Alam told the claimant how long he expected her to be absent; he took his lead from her response that she thought that 2 hours would be sufficient, including travel time. As it turned out, the claimant returned within or just before the expiry of 2 hours. When she returned, Mr Alam permitted her to have a break before resuming work.[149]The Tribunal considered this to be a routine interaction between an employee and her manager. Mr Alam is entitled to understand the impact upon his work responsibilities of a lab scientist’s absence from the workplace. The request to attend the appointment appears to have been presented by the claimant to Mr Alam relatively close to the date of the appointment, and accordingly it was impossible for cover to be arranged. Since the claimant believed that 2 hours would be sufficient, 2 hours was granted to her. 2 hours was sufficient in the circumstances.[150]There is nothing detrimental to the claimant in the process followed by Mr Alam here. There is no basis for maintaining that he did anything wrong, far less discriminatory. The respondent did not refuse her time to attend the MRI appointment. They allowed her to take that time.[151]The third to sixth issues related to the June Sillars incident. 1 52. There is no doubt that the claimant was approached by Ms Sillars, who spoke to her in terms which were unwelcome and discriminatory, on 3 February 2021 . 2 of her colleagues were deeply uncomfortable when they overheard the conversation, and considered it sufficiently serious as to justify reporting the matter to their line manager, Mr Glassford. The claimant herself submitted an email to Mr Glassford subsequently raising her concerns.[153]Ms Sillars did press the claimant about whether she smoked shisha, made fun of her for referring to “finger chips" as opposed to “chips” and asked intrusive and embarrassing questions of the claimant about the wearing of a bikini on the beach. As a Muslim, the claimant found this conversation profoundly embarrassing and oppressive.[154]The respondent agreed with the claimant’s assessment of the conversation, and Mr Glassford himself was both very unhappy and disapproving of Ms Sillars’ actions and anxious to reassure the claimant that she should not have to put up with such conduct. It appears that the claimant is and remains very unhappy about the respondent’s actions in response to her complaint about this matter. However, the claimant declined to meet with Ms Sillars and stressed that she did not want to get a colleague into trouble.[155]In that context, it seemed to us that the respondent’s actions in reassuring the claimant that they considered her complaint to be entirely justified; in treating it as informal in line with the claimant’s own reluctance to confront a colleague about such a difficult matter; in swiftly obtaining written statements from witnesses in order to understand precisely what had taken place; in meeting with Ms Sillars privately and emphasising that her conversation was entirely inappropriate and was not to be repeated; and in agreeing to the claimant’s request to be moved to a different workstation in order to avoid having to work again with Ms Sillars; all amounted to an eminently reasonable and proportionate response not only to the claimant’s complaint but also to her wish to have the matter dealt with in a moderate and discreet manner. There was nothing in the claimant’s reaction to Mr Glassford’s actions to suggest to them that she was dissatisfied with the outcome which was reached. The claimant appears to wish to raise this old issue again in order to fortify her claims against the respondent before the Tribunal, but in our judgment, it would be unfair to allow the claimant to characterise the respondent’s actions as discriminatory on the grounds of race or religion or belief, or indeed as anything other than supportive, proportionate and consistent with the claimant’s wishes.[156]The Tribunal’s strong impression was that Mr Glassford understood very readily why the claimant felt uncomfortable and humiliated by this conversation, and would have preferred to have taken more formal action upon the complaint, but was restrained from doing so by the claimant’s own wishes. Having been dealt with in a manner consistent with those wishes, as expressed to Mr Glassford, there was no reason for the respondent to taken any further action.[157]We accepted Mr Glassford’s evidence that the claimant did not at any stage request an apology letter from Ms Sillars. Mr Glassford said that Ms Sillars was upset that she had caused the claimant distress and wanted to meet with her in order to apologise in person to her. While the claimant had made clear that she did not wish to meet with Ms Sillars, it is inconceivable that Mr Glassford would have failed to obtain an apology letter from Ms Sillars if the claimant had asked for one. The fact that it was not pursued by Mr Glassford is evidence, in our judgment, that the claimant had not requested an apology letter from Ms Sillars.[158]Accordingly, in our judgment, there is no basis to suggest that the respondent acted in such a way as to treat the claimant less favourably than they would have treated another employee of a different race, or religious belief. We do not consider any criticism of the respondent’s response to this complaint to be justified, nor even fair.[159]The eighth issue relates to the handling of the dispute between the claimant and Gentian.[160]It is not entirely clear what the claimant is complaining about in this matter. In her further and better particulars, (42) she sets out her version of events. She alleges that Gentian repeatedly called her a liar and raised his voice to her. This incident took place in July 2021 when Mr Glassford was the claimant’s line manager. He sought to calm the claimant down and then to meet with her and Gentian in order to find a resolution of the matter. Since that meeting failed to resolve the dispute, he asked the claimant to move to another workstation temporarily, as it was clear to him that they could not (or would not) work together.[161]The claimant expressed very strong negative feelings about the way in which Mr Glassford dealt with this matter. In particular, she persisted in asserting that Mr Glassford had “indirectly” called her a liar. We understood this to mean that since Gentian had called her a liar, the fact that Mr Glassford had not told her that she was not a liar nor told Gentian to withdraw the allegation meant, in the claimant’s view, that he was joining with Gentian in his assertion. We did not find this to be the case at all. However, what we did find convincing was that the claimant became fixated on trying to persuade Mr Glassford that she was in the right and Gentian in the wrong.[162]Mr Glassford’s conclusion was that both the claimant and Gentian were at fault for the manner in which they conducted this interaction, and that both acted very unhelpfully in the meeting in which he had tried to resolve matters between them. Given that they both raised their voices in that meeting and sought to inflame the situation, Mr Glassford’s reaction was to take them at their word and accept that they could not be allowed to work together at the workstation. Gentian having been based on that workstation for longer than the claimant, Mr Glassford took the view that he should ask the claimant to move. She was unhappy with this proposal, but she did move at his request.[163]Our conclusion about this situation was that there was no clear finding made by Mr Glassford that either the claimant or Gentian were primarily to blame for the relationship breaking down, but that both of them had contributed to this situation and had not improved matters when he had sought to bring them together; and that in any event, there is nothing in the claimant’s claim, further and better particulars or evidence which actually states, at any stage, what protected characteristic she relies upon in making this complaint.[164]The claimant appears to be suggesting that the respondent treated her less favourably (presumably than some unnamed comparator) because of a protected characteristic, but at no stage does she say what the protected characteristic is. Given that she has made claims relating to sex, race and religion or belief, one would anticipate that she would be able to identify which of these characteristics she believed was the ground upon which the respondent acted.[165]On the face of it, the claimant’s complaint here is simply that she felt that Mr Glassford treated her less favourably than Gentian, on the basis that he found that she had lied (which he did not), and that he had asked her to move, and not Gentian. We are unable to identify any discriminatory conduct on the part of Mr Glassford in making this decision. It is possible to identify that the claimant is female, and Gentian is male, but beyond that we simply do not know, from the evidence, what the claimant suggests was the reason for any different treatment between them.[166]As a result, we accept the respondent’s submission that the claimant has failed to discharge the burden of proof upon her to show that there was a difference in treatment which created a prima facie finding that the reason for the difference in treatment was race, or sex, or religion or belief. The evidence simply demonstrates that the claimant and Gentian had a disagreement, which continued even though Mr Glassford attempted to resolve it, during which Gentian made some reference to the claimant speaking to him in a manner in which his wife would not speak to him. The claimant did not explain to us why she thought that amounted to discriminatory conduct and in that absence we are unable to conclude that of itself that was a statement which amounted to discrimination on the ground of any particular protected characteristic.[167]In any event, even if the burden of proof had been discharged by the claimant, we would find that the respondent did not act in a discriminatory manner in dealing with the issue. Mr Glassford attempted to find a resolution between two disputing colleagues who were not only refusing to back down from their respective positions, but who were escalating the dispute when he sought to bring a degree of closure to both of them. He did not find that the claimant had lied to Gentian, but treated this as a relationship breakdown rather than a conduct matter and sought to find a solution in that way. He also asked the claimant to move to a different workstation, which she was very reluctant to do, since she drew the inference that she was being punished. We accepted Mr Glassford’s evidence that the reason for moving her rather than him was simply down to Gentian’s longer experience at the particular workstation involved. He was seeking to find a solution to a very acute workplace situation, and we do not consider that he took the decision he took on the basis of the claimant’s race. There is simply no evidence to support such a claim.[168]The ninth issue relates to the alleged instruction by Mr Alam to the claimant to work despite having Covid-19 symptoms in September 2021 .[169]There is no doubt that this was a matter which could have been handled more judiciously by Mr Alam. The claimant did attend work in the morning, and during the course of her shift, left the laboratory. As we understood it, the reason why she left was that she had told her colleagues that there had been a positive test at the school were one of her children was in attendance, and that she was suffering from a runny nose, which she attributed to a possible Covid infection. When she left the laboratory, the respondent became somewhat confused as to whether or not, in these circumstances, the claimant required to self-isolate. Mr Alam readily accepted that he became confused between the UK Government guidance and that of the Scottish Government. 1 70. The claimant alleged that she was forced to wait in her car for 4 hours while the decision was made. She also alleged that she was humiliated and upset by this process.[171]The evidence before us gave a rather different picture. The claimant herself decided to wait in her car in the car park, while not in the laboratory, and there is no evidence at all that she was instructed to go to her car or to wait; and further, she gave evidence herself to the effect that she did not have to wait in her car for 4 hours.[172]What did happen was that the claimant was not sent home, as she appeared to want to be, until much later in the day, and that there were many discussions going on inside the laboratory as to what she should be told to do. There was a delay in obtaining a result from her Covid-19 test (which may be seen as both unfortunate and ironic given the nature of the work being carried out in the laboratory), but the issue seems to be that the claimant was expected to be at work rather than self-isolating.[173]Mr Alam believed that the claimant could be asked to work when she had not had a positive Covid test; when neither or her children had had a positive Covid test; and when the only symptom she was suffering from on the morning when she attended work was a runny nose, which Mr Alam believed was not a Covid symptom. 1 74. The claimant was eventually permitted to go home, and indeed once she had initially left the laboratory, she was not required to return that day.[175]In our judgment, this was a matter which could and should have been handled much better by the respondent, especially in light of their knowledge and expertise in Covid-19, being a Covid-19 testing laboratory. While there may be some mitigation in that the guidelines being issued by the UK and Scottish Governments changed frequently at that time, and also different in sometimes subtle ways, the respondent did not cover itself in glory in this issue. 1 76. However, the claimant has failed to put forward any evidence to the effect that the reason why she was treated in this way was related to her race, or on the grounds of her race. There is no indication that any other individual of a different race would have been treated any differently, and our view was that Mr Alam was not being deliberately difficult here, but simply trying to ensure that he complied with the applicable guidance.[177]It is not clear how the claimant suggests she was being treated less favourably than any other individual on the grounds of race. If it is correct, as we have found, that the respondent’s uncertainty and vacillation was brought about by a lack of clarity as to the guidelines and a concern to ensure that a member of staff should be able to continue to work unless they were genuinely a risk, or at risk, due to Covid-19, then that lack of clarity would have applied no matter what race the employee concerned belonged to.[178]In the evidence, the claimant did not assert at any stage that she was treated less favourably in this matter due to her race.[179]Accordingly, there is no basis for any finding of discrimination in this issue.[180]The tenth issue was that Mr Jones shouted at her and asked her twice not to point at him. We heard evidence from both the claimant and Mr Jones. We preferred the evidence of Mr Jones when he insisted that he had not shouted at the claimant. They were meeting in a place which, of necessity, others could pass through at any moment. As to Mr Jones telling the claimant to stop pointing at him, he accepted that he had done so, or may have done so, simply because she was pointing at him in a manner which he did not think was appropriate. On that point, the claimant insisted that she was not pointing, but was gesturing with her hands, as she does when she speaks.[181]We concluded that Mr Jones was telling the truth about this, and that the claimant was pointing at him, in a manner which he found to be rude, so he asked her to stop. We do not find that this is an unusual thing for a manager to do, particularly when trying to calm an employee down when they are agitated, as the claimant was. Mr Jones insisted that he did not, and would not, shout at anyone, and his evidence was accepted by the Tribunal.[182]Again, however, there is nothing in the evidence which would allow us to conclude that Mr Jones acted as he did on the basis of the claimant’s race. We cannot find any connection whatever between what Mr Jones did and the claimant’s race. There is no basis for this claim, and we do not uphold it.[183]The seventh and eleventh issues related to the respondent’s failure to appoint the claimant to be Workstation Lead.[184]The claimant expressed frustration and incomprehension that she was not appointed to the position of Workstation Lead on any of the occasions on which she applied to the respondent.[185]The respondent observed that this was not a promoted position, but one in which the successful candidate would be paid a responsibility supplement but remain on the same grade as lab scientists. They described it as an unofficial position, though the Tribunal did not find that a helpful description; it was a position which attracted a salary supplement, and plainly involved the accretion of additional responsibilities.[186]The claimant’s frustration was vividly expressed on a number of occasions in the Hearing before us. Essentially, she complained that as an experienced and highly qualified scientist, with a PhD, she should have been appointed above any of the candidates who were competing with her for the posts. She compared herself to individuals whose experience was in retail, or on board a commercial airliner, and considered it self-evident that she would have been the best person for the job on each occasion.[187]The respondent’s position was that the claimant was certainly appointable, and indeed a good candidate, on each occasion, but that there were better candidates whose experience of management, or whose applications, more realistically demonstrated that they would be able to lead a team, and increase its coherence, effectiveness and team spirit.[188]The position was not one in which the scientific or academic qualifications were any different to those for the appointment of a lab scientist. As a result, the respondent considered themselves able to appoint the most suitable candidate from the lab scientists without the need to consider their scientific credentials. Each candidate had experience as a lab scientist, and thus familiarity with the processes being followed. The additional characteristics which the respondent said they were looking for related to the ability to manage people, and find a way to improve how they worked together.[189]The evidence of Mr Glassford, Mr Alam and Ms Brown was consistent in demonstrating that having a PhD was not an advantage to a candidate who wished to move from lab scientist to Workstation Lead. They considered that the claimant’s applications focused too greatly upon the technical and process aspects of the workstation, and too little upon the credentials of the claimant in leading and motivating a team of colleagues.[190]There is no basis, in our judgment, for the assertion that the claimant was not appointed to the position of Workstation Lead for a reason relating to her race. The respondent was able to point to a colleague named Mab Habib who had been appointed to the position of Workstation Lead, of Arabic and Muslim ethnicity, and while this is not of itself determinative of the claimant’s claim, it did contradict the claimant’s own assertion to Mr Alam that no Muslim women had been appointed in this way. 191 . Further, the claimant’s complaint that her PhD meant that she was better qualified than any of her colleagues was contradicted by Mr Alam’s evidence that despite holding a PhD himself he was not appointed initially to the position of Team Leader when he applied. Again, of itself, this is not determinative of the claimant’s claim, but it does indicate that a promoted position within the laboratory did not, on every occasion, require a PhD.[192]Our conclusion was that the claimant’s applications were considered to be good, if not sufficiently focused upon the management requirements of the position, but that others were able to demonstrate a more teamfocused approach. In our judgment, the claimant has not proved that the reason for her non-appointment to the position of Workstation Lead was related to her race.[193]The final, and supplementary, issue on the List of Issues related to the dispute with Eugene. While we accept that this was a matter of importance to the claimant, it should not be included in the List of Issues, as it does not appear in the claimant's claim nor in the further and better particulars.[194]A claimant, whether represented or unrepresented, must give notice of the claims which they wish to make. The fact that the respondent chose, voluntarily, to present evidence on this particular point in order to assist the claimant and the Tribunal does not mean that the Tribunal requires to allow the claim to be expanded, particularly in circumstances where no application to amend the claim has been made.[195]The issue with Eugene therefore arises as a matter which is outwith the List of Issues, and beyond the scope of this Hearing, which is only to deal with the claims which have been made in advance of the Hearing. Section 13 of the Equality Act 2010 - Direct Religious Belief Discrimination 12. Did the respondent treat the claimant less favourably than it would treat others in not materially different circumstances because of the claimant’s religious beliefs (Muslim) by subjecting the claimant to the following treatment:a. the discussion on 3 February 2021 with a colleague, referred to as ‘June’ or US’, about drinking alcohol;b. the discussion on 3 February 2021 with a colleague referred to as 'June’ or ‘JS’, about taking off a jumper;c. the discussion on 3 February 2021 with a colleague referred to as ’June’ or US’, about arranged marriage; andd. the alleged dispute with a colleague referred to as ’Gentian’ or ‘GX’ in July 2021 (noting that it is unclear what protected characteristic the claimant is relying upon in respect of this complaint). 13. If so, was the alleged less favourable treatment because of the claimant’s religious beliefs? 14. Are the claimant’s direct religious belief discrimination claims set out in (a) to (d) above out of time? (section 120 of the Equality Act 2010) a. Were these claims lodged within 3 months of the act of discrimination, or last act of discrimination if there is found to be conducting extending over a period of time? b. If not, is it just and equitable for the Tribunal to exercise its discretion to allow the claims set out at (a) to (d) above to be considered by the Tribunal?[196]Under this heading, the Tribunal requires to consider whether or not the allegations made form the basis of a complaint for discrimination on the grounds of religion or belief. In this case, the claimant relies upon the Muslim religion as her protected characteristic.[197]The claimant is Muslim. With regard to the first three issues under this heading, all related to the conversation with Ms Sillars, we have already found that what Ms Sillars said to her was unquestionably offensive to her as a Muslim, and accepted to be so by the respondent. However, the respondent, as we have found above, dealt with this matter not only in an objective and reasonable manner, they carried out the express wishes of the claimant not to treat the matter formally or to require the two protagonists to meet together to seek to resolve it.[198]Accordingly, we are not of the view that the respondent, who acted appropriately as soon as the matter was reported to them, can be found to have acted unlawfully by way of discrimination on the grounds of religion or belief in this regard.[199]So far as the incident with Gentian was concerned, there was no evidence that the claimant’s treatment by the respondent in this regard was in any way related to, or on the grounds of, her religion or belief. This was a breakdown of relationships between two colleagues, and there is nothing upon which the Tribunal could make any finding to the effect that either Gentian or Mr Glassford acted as they did due to her religion or belief. Mr Glassford plainly demonstrated in his handling of the conversation with Ms Sillars that he was not prepared to tolerate conduct of that nature towards the claimant. In our judgment, his priority was to seek to resolve a dispute between two colleagues working together in the same workstation by asking one of them to move to a different place, and that was what he did. The fact that he asked the claimant to move rather than Gentian related to the latter’s experience at the workstation, not the claimant’s race. Again, the claimant has failed to prove that there was any such connection.[200]In these circumstances, there is no basis for the Tribunal to conclude that she was discriminated against in these matters on the grounds of religion or belief. Section 26 of the Equality Act 2010 - Harassment 15. Did the respondent engage in unwanted conduct related to the claimant’s race and/or religious beliefs by subjecting her to:a. the alleged conduct at 9(a) to (e), (h), (i) and 12 (a) to (d) above? 16. If so, did the conduct have the purpose or effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant? 17. Are the claimant’s harassment complaints out of time? (section 120 of the Equality Act 2010) a. Were these claims lodged within 3 months of the act of discrimination, or last act of discrimination if there is found to be conduct extending over a period of time?b. If not, is it just and equitable for the Tribunal to exercise its discretion to allow the claims set out at (a) to (d) above to be considered by the Tribunal?[201]The respondent’s submission asserts that this claim, of harassment under section 26, was never part of the claimant’s claim, and has never been the subject of a formal application to amend the claim. Ms Miller suggested that it came in during a Preliminary Hearing before Employment Judge Whitcombe, in which he '‘walked’* the claimant through her claims, and thereby a harassment claim was introduced.[202]We were unsure what to make of this submission. The respondent does not appear to have challenged the Tribunal’s summary of the claims, at the time, and it is not open to this Tribunal to revoke what may amount to a case management decision by another Employment Judge. It is plain that the respondent has been able to prepare itself for and defend such claims, and that they essentially arise out of the same facts as are pled in the direct discrimination claim. We have made no decision, and are not asked to make such a decision, as to whether or not the claim should be augmented by such complaints. The matter which comes before us is whether or not the complaints under this heading can be proved by the claimant, subject to the issue of time bar. However, that is, to a large extent, academic at this stage, as the Tribunal has already found that these claims form part of the claimant’s claims. We are of the view that it is too late for this Tribunal to interfere with the process adopted by another Employment Judge earlier in the proceedings.[203]The first example of conduct of which the claimant complains in this context is the alleged refusal to allow the claimant to take time off on 18 August 2021 when her son was unwell. We have already found that this was not an accurate characterisation of what happened on 1 8 (and 1 9 August 2021). There was no refusal to permit her to take time off on 19 August 2021 , and accordingly this complaint cannot be upheld.[204]The second example was the alleged refusal to permit the claimant to take time off in September 2021 to attend an MRI scan. Once again, the evidence has made clear that there was no refusal to allow the claimant to take time off. She was given time off, and was permitted to attend the MRI scan appointment (and did so). This complaint cannot therefore be upheld.[205]The third example of conduct which the claimant categorises as harassment is contained within paragraphs 9(c) to (e) of the List of Issues, in which reference is made to the actions of Ms Sillars in her conversation with the claimant on 3 February 2021 .[206]There is no doubt that the conduct of Ms Sillars, for which the respondent accepted vicarious liability, amounted to discriminatory conduct, and it is not disputed by the respondent that the claimant was subjected to harassment on the grounds of religion or belief, in particular, by the conversation which Ms Sillars had with her. In her submissions, Ms Miller, quite properly, states that ‘The Respondent has never sought to excuse Ms Siller’s behaviour, and does not do so now. The Respondent accepts that Ms Sillar’s behaviour falls within the definition of harassment in the 2010 Act and that they are vicariously liable (subject to issues of time bar below) for the actions of Ms Sillar.”[207]That admission having been made, the only issue in relation to the issues falling under 9(c) to (e) is whether or not they should be excluded on the grounds that they were time barred. We deal with this below.[208]The fourth matter raised under this heading by the claimant is the dispute with Gentian. Once again, it was our finding that there is no basis upon which it can be said that the action taken by the respondent in relation to this matter was in any way related to the claimant’s religion or belief, or her race. She did not prove this in the evidence before us and accordingly we cannot find that she was subjected to harassment on the grounds of race, or religion or belief, on the evidence before us.[209]The fifth matter under this heading relates to the complaint by the claimant that Mr Alam required her to attend work with Covid-19 symptoms on 9 September 2021. We do not consider that Mr Alam’s actions amounted to conduct which had the purpose or effect of violating the claimant's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant. He sought to manage a situation in which he found himself uncertain as to the correct course of action to follow. He tried to discuss matters with the claimant in order to find the best way to proceed, but did not require, as the claimant asserted in her claim, that she should go and sit in her car for 4 hours. He agreed that she could leave the laboratory but, in essence, asked her to remain on site and available, which she did. Whether she was suffering from Covid-19 symptoms in the morning is unclear - she had a runny nose, but her sore throat only emerged later - and therefore we have concluded that rather than creating an intimidating or degrading environment for the claimant, Mr Alam sought to navigate a route between the claimant’s views, the views of her colleagues (with which she sympathised) and the guidance which was to be followed by the laboratory. While, as we have already found, Mr Alam could have handled the matter before, we do not find that his actions had the purpose - he was acting in good faith throughout - or effect of amounting to harassment of the claimant on the grounds of either race or religion or belief. The connection with either of those protected characteristics has not been established at all by the claimant in relation to this matter.[210]Accordingly, we cannot uphold this complaint.[211]The outstanding question which we require to address, then, is whether or not the claims made by the claimant relating to the actions of MsSillars, for which the respondent was vicariously liable, should be allowed to proceed and be considered at this stage on the basis that they are presented out of time.[212]The incident took place on 3 February 2021. The claimant presented her claim to the Tribunal on 13 June 2022. On presentation, the claim itself was more than 13 months out of time. However, the harassment claim was not included within the claims until the Preliminary Hearing of 22 November 2022 before Employment Judge Whitcombe. No mention was made of harassment in the Tribunal’s Judgment of October 2022, on the basis that it had not been raised prior to that. As a result, the introduction of the harassment claims took place approximately 19 months after the date upon which the conversation took place.[213]The issue for determination by the Tribunal at this stage is essentially whether the claim of harassment should be allowed to proceed to a decision on its merits.[214]We are acutely conscious that by allowing this matter, as is common practice, to be reserved as a preliminary issue, it might be thought that the Tribunal has removed from the respondent one argument against time bar, namely that they would be prejudiced in being able to present their defence to a stale claim. However, we treat that matter with some caution, acknowledging that the respondent required to present their defence in this Hearing, and sought to assist the claimant and the Tribunal by doing so, while maintaining that the claims of harassment were time barred.[215]We do consider that the harassment claims are a significant addition to the claims made in this case, and that they were presented well out of time. They were, in fact, only included in the claim after her application for amendment had been allowed without reference to harassment.[216]We consider that the harassment claim represents a significant new claim, albeit based on the same facts as those already pled. However, it is more than a re-labelling of the direct discrimination claim. It requires a different approach in defence by the respondent, and is subject to a different legal test.[217]The reason for the presentation of the claim at such a late stage is entirely unclear. The claimant had, by November 2022, already presented an application to amend her claim, which was relatively full in its terms. She had previously had the benefit of legal advice. There is no reason given by the claimant as to why she had not presented such a claim prior to November 2022, and in particular at the point when she was submitting an application to amend. The claimant is an intelligent and resourceful individual, who has access to the internet, and who by the time she introduced this claim was already experienced in dealing with the Tribunal and its processes.[218]In our judgment, the claimant has not presented any evidence on which we could conclude that it would be just and equitable for her claim of harassment to proceed. It may be that she was not aware that such a claim had been classified as being included within her existing claims; the fact that she did not submit an application to amend at any stage to include it suggests that it was not her intention to do so, particularly when she not incorporate it in her previous amendment application.[219]The relative prejudice to the parties must be considered, though in the context which we have already set out, namely that the evidence in the full Hearing has now been heard from both parties. The claimant may well claim (though she has not) that losing the opportunity to present a claim of harassment in relation to the actions of Ms Sillars means that she loses the opportunity to maintain a successful claim, given the terms of the respondent’s admission that it amounted to harassment and that they were vicariously liable for it. On the other hand, the respondent argues that the prejudice to them is clear: their witnesses have had to address allegations in relation to matters which took place a considerable time ago; that there has been very considerable delay by the claimant in introducing these claims at such a late stage, with no explanation for the delay given; they have been co-operative throughout; that the claimant has delayed very considerably in acting on information of which she was aware before her employment came to an end, without any good reason being advanced for having done so, especially when the opportunity to amend did arise; and the claimant had access, at times, to the advice of an experienced solicitor, but did not act so as to take matters forward until November 2022.[220]We have concluded that it would not be just and equitable to extend the time within which the claims under section 26 have been presented. They have been lodged very late, without any clear or good reason being advanced by the claimant as to why she could not or did not present such claims at a much earlier stage. The claimant had the opportunity to raise a claim of harassment in her ET1 , in her further and better particulars and in her application to amend previously submitted, but failed to do so. It would, in our judgment, be very unfair and prejudicial to the respondent to allow these claims to be considered and determined by this Tribunal after such lengthy and unexplained delays. The greater prejudice would fall on the respondent if the harassment claims were allowed to proceed to 5 determination, than on the claimant if that were refused by the Tribunal, in our judgment.[221]Accordingly, we have decided that the claims made by the claimant under section 26 of the Equality Act 2010 are time-barred, and that it would not be just and equitable to allow them to proceed to determination at this late io stage of the proceedings. Claimant’s Supplementary Issues (not agreed by the Respondent) 18. On 3 December 2021, the claimant was allegedly subject to bullying by a colleague, referred to as ‘ES’, whereby he allegedly used inappropriate language during a dispute with the claimant » - ■- .... '<£ -• *15 19. These issues and unfairness led to a severe stress and anxiety for the 1 claimant as a result she was admitted to hospital while she was at work diagnosed with a heart problem and needed an urgent operation which was done on 1$ January 2023 at the Golden Jubilee Hospital, Glasgow. This can be supported with hospital and medical reports. OT HUI. o 20 222. We agree with the respondent’s submission that these issues (if they amount to issues) were not included within the pleadings, and since the respondent has not had fair notice of these complaints they do not form part of the claims before us. We understand, of course, that the respondent was able to present information to us on this matter, but that 25 does not mean that the claims were validly before the Tribunal; it simply demonstrates that the respondent, acting cautiously and no doubt upon legal advice, decided to ensure that they produced such evidence as they could in order to ensure that their position was protected.[223]Accordingly, we are not prepared to consider these issues as being 30 before the Tribunal at this stage.
Conclusion
[224]For the reasons we have set out above, we have been unable to sustain the claimant’s claims, and therefore they must fail and be dismissed.[225]We recognise that this will come as a disappointment to the claimant, who plainly has a strong belief in the rightness of her position. However, we acknowledge that both parties conducted this Hearing in a helpful and courteous manner, which was of great assistance to the Tribunal. It was obvious to us that the work being carried out at the Lighthouse Laboratory, including the work of the claimant but also of the other witnesses who gave evidence before us, was of great significance at a time of considerable anxiety and distress caused by a global pandemic unprecedented in the lifetimes of all involved. It is work of which they should all be proud. 15