Ms P Sanson v University of Stirling and Forth Valley Health Board: 4113844/2021
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4113844/2021
Between
Ms Pauline SansonClaimantUniversity of Stirling and Forth Valley Health BoardRespondent
Before
Employment Judge L DohertyMs J McLaughlan (instructed by Solicitor) for respondentMr R Davies (instructed by Solicitor) for respondentDate 28 October 2022
JUDGMENT
[1]The claimant is not an employee or a worker of the first respondent for the purposes of the Equality Act 2013 (the EQA) and the Employment Tribunal does not have jurisdiction to consider the claims under the EQA presented against the first respondents.[2]The Tribunal does not have jurisdiction to consider claims under section 91 of the EQA.
REASONS
[1]The claimant presents claims of direct discrimination under Section 13 of the Equality Act 2013 (the EQA); and harassment under Section 26 of the EQA. There is outstanding application to include a complaint of indirect discrimination (section 19 of the EQA). The claims are directed against the first and second respondents. At a PH for case management purposes, it was determined that there should be a PH to consider jurisdictional issues in connection with the claims brought against the First Respondents.[2]As determined at the PH the issues which this PH was fixed to consider were:(1) Whether the claimant is an employee/worker of the first respondent for the purpose of the EQA claims?(2) Whether the tribunal has jurisdiction to consider claims under Section 91 of the EQA?[3]The claimant appeared on her own behalf; Ms McLaughlin solicitor appeared for the first respondents; and Mr Davies, solicitor, observed the proceedings for the second respondent’s, but took no part other than that in the proceedings.[4]The claimant gave evidence on her own behalf, and evidence was given for the first respondents Ms Lorna Stoppard, Practice Learning Lead for the University of Stirling BSC nursing programme. The parties lodged a joint bundle of documents.[5]There were two preliminary issues which the tribunal dealt with prior to the commencement of evidence. The first related to the claimant’s application to include further documents, one of which comprised a link to a website. Objection was taken to the inclusion of these documents by Ms McLaughlin on the basis of the lack of notice. After discussion, the claimant indicated she could proceed without the documents being included in the bundle.[6]The second issue related to the production by Ms McLaughlin of the case report, Blackwood v Birmingham and Solihull Mental Health NHS Foundation Trust (2016) EWCA 607 (hereinafter referred to as Blackwood). A copy of this case had been sent to the claimant by Ms McLaughlin on the afternoon before the PH. The claimant emailed the Tribunal on the morning of the PH asking the Tribunal to prohibit Ms McLaughlin from referring to this case on the basis that she had had insufficient notice of it, and she required to review it and take advice. She indicated that the production of this case would put her at an unfair advantage.[7]It was explained to the claimant that Ms McLaughlin could not be prevented from relying on a case report which was relevant to the issues before the tribunal in her legal argument. The claimant was asked if she wanted time to obtain legal advice on her position, having received a copy of this case from Ms McLaughlin. The claimant indicated that she did wish to take advice, but she did not wish the hearing to be postponed for that purpose, and that she wished to go ahead. The hearing therefore went ahead, on the basis that Ms McLaughlin would be allowed to refer to Blackwood. Findings in Fact[8]The respondents are a university engaged in the provision of education, including the provision of vocational degree courses. One of the courses provided by the university is a Bachelor of Science (BSC) in Nursing, which is the three year ordinary degree. This course has a 50% practical, and a 50% academic content. The degree enables students to achieve an academic award and eligibility to register as a nurse with the NMC. The degree course is validated by the NMC, who require 2,310 practical hours of work to be conducted by the student to allow registration with the NMC on completion of the course.[9]The practical hours are conducted by way of placements with a Practical Learning Provider (PLP), Forth Valley Health Board, the second respondents, and comprise 50% of the course.[10]Placements are allocated to students by the first respondents from a pool of Placements available to them.[11]Students undertake Placements for training and education purposes. They are assigned Mentors by the second respondents, who oversee the students Placements and have responsibility for signing off the student as having satisfactorily completed the placement. The first respondents have no involvement in the Placements other than assigning the student to the Placement. They are not involved in directing the student in their conduct of the work they do on the Placement; no service is rendered to the first respondent by the student in their conduct of the Placement. In the event an issue arises with the student at the Placement, then the first respondents put in place an action plan for the student, which can involve an extension of the Placement.[12]In the BSC Nursing course the first respondents can consider a students fitness to practice on the basis of proven professional behaviour, a breach of the NMC code, breach of confidentiality, or other serious issues.[13]The first respondents can decide to exclude a student form the BCS course.[14]Students who successfully apply to the first respondents to study the BSC nursing are made an offer of a place to study at the University, which they require to accept that if they wish to undertake the degree course.[15]Students are not paid by the first respondents but receive a bursary from the Scottish government (SASS). Students do not provide services to first respondents as part of their academic study.[16]The first respondents can refer a student to occupational health. They will consider doing so if they are asked by the student for such a referral, or if they consider issues with student’s health and well-being is such that it would justify such a referral.[17]The claimant received an offer to study the BSC nursing (Mental Health) in April 2016, which she accepted.[18]The claimant commenced study with the first respondents for the BSC nursing in 2016. As part of her degree course, she required to undertake Placements with Forth Valley, the second respondents. The final Placement which the claimant was assigned to was in Clackmannanshire Community Health Centre (CCHC). The claimant commenced this Placement in September 2021. She was assigned two mentors, Eve Graham, and Lorna Gibb both of whom were staff nurses employed by the second respondents. The claimant considered that she was discriminated against by her mentors.[19]The claimant was not directed or supervised in the conduct of any service she provided in the course of that Placement by employees of the first respondent.[20]The claimant’s placement with CCHC was extended after discussion with her Tutor from the first respondents.[21]The claimant was asked to attend a Fitness to Practice hearing 25 April 2022 by the first respondents. A panel considered a number of allegations in relation to the claimants conduct and behaviour. The first respondents concluded that the claimant’s behaviour fell short of what could be reasonably expected of the student nurse and that her fitness to practice was impaired by reason of her misconduct. As a result of this the claimant was withdrawn from the BSC course. The claimant at that stage was nearing the completion of her degree course.[22]The claimant acted as a volunteer for a couple of days in a nurse training programme run by the first respondents.[23]At one stage the claimant was offered payment (and in fact paid) by a Health Board for some work which she was unable to undertake. Note on evidence[24]Albeit the claimant had a very strong sense of grievance about the manner in which she has been treated by the first respondents, there was not a great deal of material dispute on a number of relevant matters which the tribunal had to reach a conclusion upon. The fact that the claimant had accepted an offer to study with the first respondent; the type of degree she undertook; the fact that she was ultimately excluded from this degree by the first respondents; and the fact that she carried out Placements with the second respondents as part of her degree; and the fact that she was not paid by the first respondents, were not an issue. Although the claimant disputed that she learned anything, or that the purposes of the placements where for learning and education, suggesting rather that they were to provide free labour, she accepted that she did undertake Placements with the second respondents.[25]It was the claimant’s position that she carried out a significant workload during the course of placements, and she suggested that the extent of this was such that the NHS relied upon the services provided by student nurses provided by the first respondents effectively in order to keep functioning. The claimant’s suggestion to Mr Stoppard in cross examination was that the first respondent was engaged, corruptly, in supplying an unpaid labour force to the NHS. The tribunal found Mr Stoppard’s denial of this unsubstantiated suggestion on the part of the claimant, credible. In any event, what this proposition suggested was that if the claimant was supplying a service, that service was not being supplied to the first respondents, but rather to the learning Placement provider.[26]The Tribunal also found credible Ms Stoppard’s evidence that the first respondents had no involvement in the Placements, other than allocation, or putting in place an action plan which could involve an extension the Placement, if that was required.[27]Mr Stoppard’s evidence to the effect that it was only the claimant’s mentors who could sign off of a placement was challenged by the claimant, who suggested that this could be done by a university tutor. Given the context in which the placements took place, and the balance of the degree, which led to registration with the NMC and was contingent on a practical element of study be undertaken by the student, the tribunal was persuaded that Ms Stoppard’s evidence on this was to be accepted. Submissions[28]Both parties made oral submissions. Claimant’s submissions[29]The claimant submitted that the first respondents were letting students leave classes early and rushing students through their degree course in order to provide a robotic labour force for the NHS. She submitted that the first respondents ‘weeded out’ whistle-blowers or those with disabilities in order to achieve this aim. Action plans put in place by the first respondents were not intended to enhance performance but were again aimed at achieving a labour force for the NHS. She submitted that the first respondents work with the NHS to provide this labour force.[30]The claimant submitted that she was treated as an employee and was subjected to the same types of poor behaviour that employees were subjected to.[31]The claimant also refers to the pass mark of 40%, required by the first respondents which she submitted again demonstrated that the first respondents were looking to push students through the degree and provide a labour force.[32]The claimant submitted that the first and second respondents worked together in a partnership. Respondents’ submissions[33]Ms McLaughlin took the tribunal to what she submitted were the relevant statutory provisions. She submitted that the claimant was not an employee in terms of the Employment Rights Act 1996 (the ERA) and nor did she fall within the definition of those who are covered by Section 83 (2) of the EQA.[34]Ms McLaughlin submitted that the claim has to fall within Part 5 of the EQA, which deals with Work in order for the Tribunal to have jurisdiction. She referred the Tribunal to with Section 55 of the EQA which deals with employment service providers and section 56 (5) and (6) of the EQA dealing with exclusions. She also referred to the implications of Blackwood in the interpretation of these sections.[35]Lastly Ms McLaughlin referred to section 91 of the EQA, submitting that the Tribunal does not have jurisdiction to consider a claim under section 91, which is under part 6 of the EQA, pointing out that the claimant could pursue a claim under section 91 in the Civil Courts. Consideration Is the claimant an Employee/Worker in terms of the EQA?
Consideration
[36]The first matter which the Tribunal considered was the first question for determination at this PH. That was: whether the claimant is an employee/worker of the first respondent for the purpose of the EQA claims?[37]The relevance of this question is that it goes to the Tribunals jurisdiction to consider the claims brough against the first respondent under the EQA.[38]In terms of Section 120 (1) of the EQA the Tribunal has a statutory jurisdiction to consider a complaint relating to a contravention Part 5 (section 39 to 83) of the EQA.[39]Section 13 and 26 under which the claims are brought, (and potentially section 19) of the EQA all define discrimination on the grounds of a protected characteristic. That conduct is rendered unlawful by virtue of sections 39 and 40 of the EQA.[40]Section 39 (2) provides: “(2) An employer(a) (A) must not discriminate against an employee of A's (B)— (a) as to B's terms of employment;(b) in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service;(c) by dismissing B;(d) by subjecting B to any other detriment. (3) An employer (A) must not victimise a person (B)— (a) in the arrangements A makes for deciding to whom to offer employment; (b) as to the terms on which A offers B employment; (c) by not offering B employment.”[41]Section 40 provides; “An employer(a) (A) must not, in relation to employment by A, harass a person (B)— (a) who is an employee of A's;(b) who has applied to A for employment.”[42]There is no separate definition of employee or worker under the EQA. The Tribunal therefore considered if the claimant’s relationship with the first respondents fell within the definition of ‘Employment’ under Section 83 (2) of the EQA, which is the question identified for consideration at this PH. This definition is broader than the definition of Employee under the Employment Rights Act 1996 (the ERA).[43]Section 83 (2) provides “(2) “Employment” means—(a) employment under a contract of employment, a contract of apprenticeship or a contract personally to do work;(b) Crown employment;(c) employment as a relevant member of the House of Commons staff;(d) employment as a relevant member of the House of Lords staff.”[44]There was no dispute that as part of her course the claimant required to undertake practical Placements, provided by the second respondents, which were allocated to her by the first respondents.[45]The Claimant submitted that the first and second respondents were working in partnership together and the Tribunal considered the nature of the relationship between the claimant and the first respondents in light of the factual conclusion that the claimant undertook Placements with the second respondents in the course of her studies with the first respondents. The Tribunal considered whether it rendered the relationship between the claimant and the first respondent one of employment.[46]Ms McLaughlin referred the Tribunal to the Blackwood case which she submitted supported the position that there was no jurisdiction conferred on the Tribunal to consider claims against the first respondents by virtue of the fact that the claimant is alleging discrimination in the course of her Placement with a Placement provider. She submitted that the facts in that case were similar to this claim, and the claim against the University in Blackwood had been withdrawn; she submitted it was apparent from the judgment in that case that that was the correct approach.[47]The Tribunal agree that Blackwood is of some assistance in LJ Underhill’s judgment makes clear that if the clam against a university is about access to a placement then it can only be brought in the Civil courts under Section 91 of the EQA. If the claim is about discrimination which is said to have occurred during a work placement then it typically, with some exceptions which are not pled here, is brought against the placement provider under Section 55 of the EQA . It was recognised by LJ Underhill that a student who wishes to pursue a claim about both discrimination in the course of a work placement and and about discrimination in her or his access to a work Placement may need to pursue those claims in different forums.[48]Further, in answer to the question which this PH was fixed to consider, the Tribunal concluded that the fact that the claimant undertook Placements which were arranged by the first respondents with the second respondents, was not capable of rendering the relationship between the claimant and the first respondent one of employment as defined under Section 83 (2) of the EQA. The claimant did not render service personally to the first respondents while on Placement or elsewhere, was not paid by them, and there was no mutuality of obligations between the claimant and the first respondents; there was no control of direction of the claimant’s service while on Placement by the first respondents.[49]In reaching this conclusion the Tribunal had regard to the claimant’s evidence that she acted as a volunteer in a nurse training programme for a couple of days, and that at one stage she had been offered payment (and in fact paid) by a Health Board for some work which she was unable to undertake. These were not factors capable of interfering with the Tribunals conclusion on this point.[50]The Tribunal was satisfied that the claimant was not engaged by the first respondents under a contract of employment, apprenticeship or a contract to personally do work.[51]In order for the tribunal to have jurisdiction to consider a claim under Section 13, 26 or 19 of the EQA, other than in cases of applicants for employment, and some other defined categories, there has to be a relationship of ‘Employment’ as defined in Section 83. There was no such relationship in this case and the Tribunal does not have jurisdiction to consider these claims against the first respondent. Does the Tribunal Have jurisdiction to consider a claim under Section 91 of the EQA?[52]That then takes the Tribunal to the question of whether it has jurisdiction to consider a claim under Section 91 of the EQA?[53]That question is simply answered. Section 91, which prohibits discrimination by a university; a designated institution; or a college of further education is out with the scope of Part 5 of the EQA.[54]Part 5 of the EQA runs from sections 39 to 83 and therefore a complaint brought under Section 91 is out with the jurisdiction of the Employment Tribunal. That is not to say that claimant wishing to make a complaint under section 91 is without remedy, but such a complaint and would have to be directed to the Civil Courts. Further Procedure[55]A PH will now be fixed to consider further case management arising from correspondence between the claimant and the second respondent and any other issue the Tribunal considers necessary.[56]Ms Graham and Ms Gibb tried to explain to the claimant the rationale for doing the shifts in ward 2. Ms Gibb referred to the claimant possibly applying for care home jobs and that it had been a significant time since she (the claimant) had dispensed medication. Ms Gibb explained to us that as a community placement they (Ms Graham and Ms Gibb) were unable to offer this opportunity.[57]The claimant expressed a concern about how she might be treated in ward 2, making reference to “bullying” towards students. Ms Graham encouraged the claimant to try one shift, and to revert to her and Ms Gibb if any difficulties arose. At the end of the meeting on 11 November 2021 Ms Graham understood that the claimant was willing to undertake the three shifts. However, on 12 November 2021 the claimant emailed Ms Graham (901) stating – “Just wanted to update you, I am waiting on confirmation from Uni, RCN and NMC regarding the shifts. If I am told I don’t need to complete them as those skills have been demonstrated and signed off I won’t attend the ward shifts…. If you could please write your position and expectations re ward 2 in a email and if the decline of the shifts will result in a fail or any other penalty that would be great.”[58]Ms Graham told us that she felt “threatened” by the claimant’s email. She did not respond but instead forwarded it to Ms Young on 12 November 2021 (900-901). Ms Young in turn forwarded it to Ms McIntosh (also on 12 November 2021- 900) suggesting a meeting on 15 November 2021.[59]Both Ms Graham and Ms Gibb prepared a written statement (933-938 in the case of Ms Graham and 939-942 in the case of Ms Gibb) after the meeting on 15 November 2021 to which we refer below. Both of these statements referred to the meeting on 11 November 2021. Given that these statements were prepared while the events of 11 November 2021 would have been reasonably fresh in the minds of Ms Graham and Ms Gibb, we found them persuasive that events had occurred as Ms Graham and Ms Gibb described.[60]Ms Graham’s recollection of the discussion with the claimant on 11 November 2021 was also supported by an email which she (Ms Graham) sent to Ms McIntosh on 15 November 2021 (902-903). In this email Ms Graham stated as follows – “….We did make it clear that the visits to the wards were about consolidating the learning that she has done here. We had noticed that she did not seem familiar with some of the commonly used medications (which happens sometimes with other students, and we would respond in exactly the same way). I have asked her again to see her folder, but she did not bring this today. She has said that she plans to bring it tomorrow. I have not as yet seen her folder at all. She did bring it in once, but it was on a day that I did not have time to have a look. She has been photocopying bits, and pulling other bits out for signing. She has not dispensed medications sine her placement in wards 4/5 which would have been 2019 and we acknowledge and support the fact she will have some gaps in knowledge as she has told us that other placements had broken down in the past. I have given her a lot of reassurance that our requests have been purely to support her and that we need to be satisfied that she is continuing to demonstrate skills before being signed off. It seemed natural following the study that she has done to have the opportunity for her to then dispense these medications, given that there is such a gap of time since she has done this and to familiarise herself with them again (and the doses that we might use in older adults with physical frailty, ward 2 is a dementia ward, and so would be a good environment to do this). I was more concerned about her response to this with myself and my colleague. When we were trying to discuss with her around older adult doses for medications (in a supportive way), she came back saying “I have looked it up and you are wrong, I am right”. I am obviously concerned that she is perceiving any support and advice as criticism, which of course, we do not want. When I first raised with her the option of going to the ward (which was suggested also as a good plan by the PEF Michelle Young), she became angry and upset and stated “this is the university trying to mess with my head” “I’ve been waiting on this happening”. She went away, and came back saying that she felt calmer. However, at this point stated “I don’t believe you that my knowledge is any less than any other student at my stage” “I’m standing my ground and I’m not going to the wards where people could be unkind to me”. Our aims were very clear of going to the Ward 2, it would allow her to dispense medications after a gap in time prior to qualifying, and demonstrate continued competence here (as we do not have the opportunity to do this in the community). Also, it would allow her to dispense medications in an older adult setting to consolidate the learning that she has been doing here and on her study days.” “Sent home early”[61]The claimant alleged that she was not allowed to finish work at 5pm but was sent home early. She said of Ms Graham and Ms Gibb “They wanted me to go because they brought cake, which I refused, and gossiped”. The claimant raised the matter of finishing at 5pm in her email to Ms Gibb of 12 November 2021 (888) where she said – “Quick question. Would it be possible to stay at placement until 5pm everyday to maximise learning opportunities?”[62]Ms Gibb replied on the same date (888) – “your working hours are 9-5pm, we have been giving you the opportunity to leave 15 mins early from placement as we wanted to give you the chance to get something to eat and to change uniform before your bank shift at 5pm.”[63]The claimant disputed that she needed time to have something to eat but accepted that she had to change out of her uniform before starting work in the vaccination clinic at 5pm. Our view of this was that the claimant was not “sent home early” as she alleged in her email to Ms McIntosh earlier on 12 November 2021 (889) but rather she was allowed to finish before 5pm to enable her to start her shift in the vaccination clinic on time. Meeting on 15 November 2021[64]There was an exchange of emails between the claimant and Ms McIntosh on 11/12 November 2021 (889-892). It was apparent from Ms McIntosh’s email to the claimant of 12 November 2021 that this covered –• The claimant’s requirement to have two matters relating to maternity signed off in her OAR.• The three shifts in ward 2 which the claimant had been asked to work.• The claimant’s request for a meeting.[65]Having received the claimant’s email of 12 November 2021 (901 – see paragraph 57 above), Ms Graham emailed Ms Young on the same date (900) – “I have received a further email (below) from Pauline Sanson our student. I have already replied to one this morning outlining our reasons for asking her to work in ward 2 for a couple of shifts. She has contacted union, university and NMC. I do not feel comfortable continuing with this email correspondence with her and hoping that you can advise.”[66]Following emails between Ms Young and Ms McIntosh on 12 and 15 November 2021 (899-900) a meeting was arranged for 4pm on 15 November 2021. In attendance were Ms McIntosh, Ms Young, Ms Graham, Ms Gibb and the claimant (Ms McIntosh and Ms Young participating remotely via Microsoft Teams).[67]The claimant’s account of this meeting was reflected in the following answers she gave under cross-examination – “It was not explained to me why I needed to practice administration of medication on a ward. Maybe generally but not specifically.” “I was not rude to Eve. She did not go off sick because of that. She had other problems in her life.” “Any grown woman would not go off sick due to one 1 hour meeting. I don’t cause misery to people. I’m the victim.” “Eve was not drinking at work. She said she drank at weekends. I did not raise the issue of drinking at work. I would know if she was drunk in that office.” “I don’t know if Eve was genuinely upset at the meeting. She seemed to be bullying me and snarling at me.”[68]Ms McIntosh’s evidence about the meeting on 15 November 2021 included the following – “Pauline showed a lack of respect and awareness of her impact on others at the meeting. Her descriptions were clearly upsetting to others. She spoke over people and did not allow them to contribute.” “Eve looked very surprised at things being said by Pauline, for example being pressured into giving personal information about her family. And the mention of drinking – Eve was shocked. Also when Pauline referred to racism due to her Canadian accent, Eve looked shocked and upset. She rubbed her hands across her face. She tried to respond but could not get her words out.”[69]Ms Graham’s evidence about the meeting on 15 November 2021 was given largely by reference to the written statement she had prepared after the meeting (933-938) and the separate statement she prepared to answer the allegations made by the claimant in her referral to the NMC (1180-1182). These included the following – “Pauline’s behaviour was appalling towards me. She randomly brought up a comment that I had said alongside everyone else in my office joking about wanting to drink wine on a stressful day (office banter which of course was in humour, and Pauline had laughed with us about at the time). She stated in the meeting “I mean, I’m not suggesting that Eve drinks alcohol at work but….she joked about it”. Her tirade of abuse continued throughout the meeting….” “The meeting felt like a barrage of personal attacks on me with unfounded allegations and comments taken out of context in an attempt to slander me. She was not willing to listen to all opinions, there was no professionalism or courtesy, she spoke over everyone….”[70]Ms Gibb’s evidence about the meeting on 15 November 2021 was also given by reference to the written statement she had prepared after the meeting (939-942) which included – “During the Teams meeting with University and PEF….I was disgusted at her behaviour which quickly deteriorated into a personal attack on C/N Graham. After 30 years in nursing and having been a mentor and sign off mentor to many students I have never witnessed such an aggressive and personal attack….”[71]Ms Gibb also told us that it was the claimant who made reference to drink, and drinking at work. She (Ms Gibb) said that the claimant had made the comment “I’m not saying she drinks at work but….”. Ms Gibb did not recall Ms Graham bringing this up first.[72]Ms Young had prepared a statement (914-916) about the meeting on 15 November 2021. She told us that she had done this a couple of days after the meeting. Her reasons for doing so were(a) it had been a “distressing event to witness” and(b) she thought there might be repercussions and wanted to write it up shortly after the event.[73]Ms Young’s statement contained a narrative of the discussion at the meeting, covering –• The claimant’s concerns about going to ward 2 and the explanation she was given as to the rationale for this request, and why this was a reasonable request.• The claimant’s reference to Ms Graham and Ms Gibb being critical of her homework, and the response from Ms Graham and Ms Gibb that their feedback was given to support further learning in relation to the placement client group.• The claimant’s statement that Ms Graham “had corrected her pronunciation of drug names, as these were incorrect(ly) said due to her accent and anxiety” and Ms Graham’s apology “for any perceived criticism”.• The claimant’s statement that “bullying and harassment are endemic in the wards” and Ms Graham’s response that she would ensure the claimant only worked with one mentor who would oversee the experience.• The claimant’s description of an incident saying “I’m not suggesting you (Eve) were drinking on duty, but….”, and Ms Graham appearing “shocked”.• Ms Graham appearing distressed as the meeting progressed, and stating to the claimant that her wish was only to support the claimant during her sign-off placement.[74]Ms Young denied that she had said the claimant had wasted an hour of everyone’s time. Our view of this was something might have been said near the end of the meeting which reflected frustration on the part of the other attendees that they had repeatedly told the claimant what was expected of her. We were not however persuaded that Ms Young had referred to the claimant wasting everyone’s time.[75]We found Ms Young’s statement to be a fair and balanced account of the matters discussed at the meeting on 15 November 2021. She did not focus on the claimant’s behaviour at the meeting but was sufficiently concerned about how Ms Graham had been impacted that she (Ms Young) telephoned Ms Graham the following day. Ms Graham broke down during this call. Ms Young referred to Ms Graham being “genuinely upset” at some of the comments made by the claimant.[76]Shortly after the meeting on 15 November 2021 ended Ms McIntosh sent an email to the claimant and other attendees (917) setting out the purpose and intended outcome of the three shifts – “The purpose of the three shifts in the identified ward will be an opportunity for Pauline to:• Practice medication administration with a population of people that are similar to that of her current placement.• Gain confidence in the recognition and administration of medication used for this population. The outcome of this learning opportunity is:• That Pauline completes the three shifts and gains experience of the application of medication knowledge through the practical experience of medication administration.” Events following meeting on 15 November 2021[77]On 16 November 2021 the claimant completed an online training module “Medication Awareness for Nurses Working in Mental Health”. She received a certificate confirming this (918). She emailed this to Ms McIntosh and Ms Graham on the same date (921). Ms Graham did not respond to this email. When the claimant asked Ms Graham if she had received the emailed certificate, Ms Graham replied briefly “Yep”.[78]In relation to this Ms Graham said that she was not feeling good on 16 November 2021. She felt threatened by the claimant both personally and professionally. She said that she did not feel comfortable being around the claimant at that point.[79]On 17 November 2021 Ms Gibb emailed Ms S McConachie, Clinical Nurse Manager (and as such Ms Graham’s and Ms Gibb’s line manager) (924). Ms Gibb’s email included the following – “I know you are aware of the current situation with the team and wondered if there was any advise (sic) yet? The atmosphere in the team is strained and everyone feeling very uncomfortable. I suggested that she work in the single office but she declined and has stated she is happy in the main office. Eve has a GP appointment this morning and I am waiting to hear from her.”[80]The outcome of Ms Graham’s GP appointment was that she was issued with a Fit Note and commenced a period of medically certified absence due to stress. Ms Graham attributed this to anxiety caused by the claimant.[81]In the written statement she prepared after the meeting on 15 November 2021 (933-938) Ms Graham described the claimant’s behaviour since the meeting on 11 November 2021 and concluded – “….Her behaviour towards me has been unacceptable, unprofessional and shows a disregard for the impact her actions have on others. She seems unwilling to receive constructive feedback. The ability for her behaviour to change like this so rapidly towards us concerns me….We had been nothing but nice and supportive to her and have taken her as we found her (as we do with all students) and I am not willing to be on the receiving end of her bullying and coercive behaviour any longer, or for her behaviour to continue to impact on me or my team. She has made numerous allegations and comments against me which have been professionally and personally slanderous and as such, I would not feel able to sign her onto the nursing register.”[82]Ms Gibb expressed similar sentiments in her written statement (939-942). She concluded – “Her lack of professional integrity, her bullying and coercive behaviour is a concern. She shows an inability or unwillingness to recognise her own limitations and accept or seek support without becoming defensive. She shows an inability to work collaboratively during discussions and is unable to allow others to speak. I am not prepared to work with her, I have never said that about any student or member of staff despite having worked with a range of difficult situations and people over the years.”[83]Two consequences for the claimant resulted from the meeting on 15 November 2021 and its immediate aftermath. Ms McIntosh decided to make a FTP referral. She also decided to cancel the claimant’s placement. Ms McIntosh emailed the claimant at 11.30am on 19 November 2021 (944-945) to advise her of the cancellation of the placement – “Unfortunately, due to the impact of the meeting on Monday and the subsequent absence of your sign-off mentor, your current placement cannot continue….”[84]The claimant initiated Early Conciliation by contacting ACAS at 7.39pm on 19 November 2021, naming the parties against whom she wished to claim as the University (946-947) and the respondent (958-959). It was apparent from the respective timings of Ms McIntosh’s email to the claimant and the claimant’s notification to ACAS that the decision to cancel the placement was taken before the University and the respondent became aware of the claimant’s intention to bring a Tribunal claim. FTP process[85]The claimant’s ET1 claim form was submitted on 30 December 2021. It follows that, unless added by amendment, anything which occurred after that date cannot form part of the claims before us. The claimant’s amendment dated 4 May 2022 contained the following paragraphs – “I feel as the victim of discrimination, to avoid any accountability of discriminatory attitudes and behaviour to me, that both NHS staff and equally Stirling University (equally) created a false narrative that I caused them stress to end my placement with Eve’s absence and then refer me to FTP. Furthermore Gwenne McIntosh who was my tutor at Stirling University also supported and enforced this false narrative by making the FTP referral with agreement and support of both NHS and Stirling University staff.”[86]It was clear from the evidence of Ms Graham, Ms Gibb, Ms McIntosh and Ms Young that the claimant behaved badly at the meeting on 15 November 2021. Ms Graham and Ms Gibb used emotive language to describe this – see paragraphs 69 and 70 above. Ms McIntosh’s language was more restrained – see paragraph 68 above – but her references to showing “a lack of respect and awareness of her impact on others” and being “clearly upsetting to others” were indicative of bad behaviour on the claimant’s part. Ms Young’s recollection of the meeting was, as we said at paragraph 75 above, a “fair and balanced” account, but she also confirmed that the claimant had caused Ms Graham to be “genuinely upset”. There was no “false narrative”.[87]That senior personnel within the respondent were involved in discussions about the claimant’s behaviour was confirmed in an email Ms Robertson sent to Ms McIntosh on 2 December 2021 (968-969) – “Can I just clarify that I acknowledge the discussions I had around this individual’s behaviour and the impact that this had on the team, however I was not involved in the actual decision making to remove this person. I was asked to find an alternative placement which I have supported.” However, as recorded above (see paragraph 83), we found that the decisions to cancel the claimant’s placement and make the FTP referral were made by Ms McIntosh (and were therefore decisions of the University and not the respondent).[88]Ms Robertson told us that, following contact from Ms Young on 16 November 2021 expressing concern for Ms Graham’s wellbeing following the meeting on 15 November 2021, a meeting to discuss continuation of the placement took place on 18 November 2021. However, if Ms Robertson as the respondent’s Head of Mental Health Nursing was not involved in the “actual decision making”, we believed that this to be confirmatory of our view that the final decision was made by Ms McIntosh. Indeed Ms Robertson’s evidence to us included the statement that – “The decision to end the current placement was taken by the University of Stirling.”[89]Ms Robertson identified an alternative placement for the claimant. This would have been at Livilands Mental Health Resource Centre. This did not proceed due to the FTP process. In an email to Ms Robertson dated 21 December 2021 (989) Dr A Shepherd, Head of Health Sciences within the University’s Faculty of Health Sciences and Sport, stated – “I don’t imagine the FTP investigation will start now till after Christmas and the student is aware that no further placement can commence until the outcome of the panel is decided.”[90]Provision for the FTP process is made in the University’s Faculty of Health Sciences and Sport – Fitness to Practice Policy and Procedure (Students) 2020. Ms McIntosh’s referral was made on 1 December 2021 (1168-1174) and was screened by Mrs JA Scott, Associate Dean for Learning and Teaching. Mrs Scott decided(a) that there was a case to answer,(b) that the matter would be referred for investigation and(c) to impose a temporary suspension order on the claimant. She confirmed these matters in her letter to the claimant of 8 December 2021 (973-974).[91]The claimant thereafter made a referral to the NMC in respect of Ms Graham, Ms Gibb and Ms McIntosh (1230-1235).[92]Mr I Gallagher, Lecturer in the University’s Faculty of Health Sciences and Sport, was appointed to conduct an investigation. In the course of this investigation Ms Graham and Ms Gibb provided the statements referred to above (although we understood these were prepared principally to answer the claimant’s allegations in the NMC referrals). Mr Gallagher conducted interviews with Ms Graham, Ms Gibb, Ms McIntosh, Ms Young and the claimant. Mr Gallagher then produced an Investigation Report dated 12 April 2022 (1045-1174). His recommendation was referral to a FTP Panel.[93]The FTP Panel was chaired by Mrs M Fairley-Murdoch, Senior Lecturer and FTP Lead at the University. The FTP hearing took place on 25 April 2022. The allegations were expressed in these terms – “That you, a student nurse, whilst enrolled on the BSc Nursing (Mental Health) programme, failed to demonstrate the standards of practice expected in relation to the following: 1. Failed to establish effective working relationships with placement mentors/assessors and professional colleagues on various occasions over the course of your study 2. Caused emotional distress to placement mentors/assessors and professional colleagues on various occasions over the course of your study 3. Has made vexatious Fitness to Practice referrals to the NMC against professional colleagues 4. Has exhibited unprofessional conduct during each of your final placements, and meetings held to support you, which has led to a failure to meet the requirements for final sign off 5. Has an inability to accept feedback in a constructive manner and respond appropriately to this on various occasions over the course of your study and, in light of the above, your fitness to practice as a student nurse is impaired by reason of your misconduct.”[94]The FTP Panel found all of the allegations to be proved. Their decision was communicated to the claimant by Mrs Fairley-Murdoch’s letter of 3 May 2022 (1183). The Panel’s decision was to recommend the claimant’s withdrawal from the BSc Nursing programme.[95]There was no evidence before us which suggested that, beyond the participation of three of its employees in providing witness statements, the respondent had been involved in or had influenced(a) Mr Gallagher’s decision to recommend the claimant’s referral to a FTP Panel and(b) the decision of that Panel. Other matters[96]We touch here on a number of other matters which came up in the course of evidence. The claimant did not identify a comparator for the purpose of her direct discrimination claim. However, she referred to a Nigerian student undertaking the same course of study who had been removed and detained by immigration authorities, and subsequently convicted of an offence. The claimant said that this student had been supported to complete her course whereas she (the claimant) had been kicked out.[97]Section 23 EqA (Comparison by reference to circumstances) provides – (1) 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….”[98]While the claimant may have perceived injustice in her removal from her degree course when the Nigerian student was not removed, our view was that the circumstances of the Nigerian student were materially different from those of the claimant. The claimant was not removed and detained by immigration authorities and subsequently convicted. We heard no evidence to suggest that the Nigerian student was referred to a FTP Panel. The Nigerian student would not have been an appropriate comparator for the purpose of the claimant’s direct discrimination claim.[99]The claimant alleged that her Canadian accent had been “mocked” by Ms Graham and Ms Gibb. She said that they “would correct my accent and laugh about it”. Ms Graham denied this and said that she “never mimicked the claimant’s accent”. She (Ms Graham) said that she did not think the claimant had a strong accent. The point was not put to Ms Gibb. The claimant provided no details of specific occasions when her Canadian accent was allegedly mocked. Our view of this was that the claimant’s accent was neither corrected nor mocked. It was the claimant who reacted negatively to having her pronunciation of certain medications corrected, and it was she (the claimant) who attributed this to her Canadian accent.[100]The claimant alleged that there had been repeated criticism by Ms Graham of her academic level including her past degree from the University of Alberta. According to the claimant Ms Graham “did not like it that I had this previous degree”. Ms Graham’s evidence was that she had never criticised the claimant’s academic level, and that she “did not make sarcastic comments about her degree from the University of Alberta. That’s not something I would do.” We did not understand the claimant to make a similar allegation against Ms Gibb, but the point was put to her and she stated “I have no recollection of ever judging the claimant’s academic achievement. It’s highly unlikely I did that.”[101]The claimant’s past academic record was not relevant to her student nurse placement and it seemed to us improbable that it would have been criticised at all, let alone repeatedly, by Ms Graham. We found Ms Graham’s denial more credible than the claimant’s assertion on this point.[102]The claimant alleged that her access to the office photocopier had been restricted. She referred to her email to Ms Graham of 26 October 2021 (584) requesting copies of a document. The claimant said “They made me wait till the next day while they sat there eating cakes and discussing people”.[103]Ms Graham said that the claimant had access to the photocopier, but rarely asked for items to be printed. She (the claimant) had not been denied access to the photocopier. Ms Graham referred to an occasion when the claimant had asked a colleague to print off something she (the claimant) had already emailed, so there was no need to print it. Our view of this was(a) we were not persuaded that the claimant had been denied access to the office photocopier and(b) if the claimant’s access to the photocopier had been restricted, it was because the proposed use was thought unnecessary and had nothing to do with her nationality.[104]The claimant alleged that she had been excluded by being discouraged from contributing to a retirement party for the administrative assistant. Ms Gibb’s evidence was that she did not consider there was any need for the claimant to contribute – she was on a short placement and it was not normal for students to contribute, as they tended to have limited finances. We did not find any connection between the claimant being discouraged from contributing and her Canadian nationality.[105]Towards the end of the claimant’s evidence in chief, I noted that she had not referred to many of the documents in the joint bundle (the bulk of which, according to Mr Davies, had been provided by the claimant). We adjourned the hearing for 20 minutes to allow the claimant to identify those documents which she considered to be most relevant to her case.[106]When the hearing resumed the claimant referred us to around 20 documents. Some, such as the claimant’s OAR and the email of 26 October 2021, we have mentioned above. Others, such as the claimant’s academic record while enrolled as a student at the University of Alberta (89-92) and an email exchange with her union representative on 3 December 2021 (971-972) were not obviously relevant to the claims she brought. Comments on the
Evidence
[107]It is not the function of the Tribunal to record every piece of evidence presented to it and we have not attempted to do so. We have sought to focus on those parts of the evidence which we considered to have the closest bearing on the issues we had to decide.[108]Our brief observations about the witnesses (apart from the claimant) are as follows –(a) Ms Graham - a good witness who answered questions put to her in a straightforward way. She was clearly offended by some of the questions put to her by the claimant, but not without cause.(b) Ms Gibb – took responsibility only for her own actions, but we had no real criticism of her as a witness.(c) Ms Young – our comments are similar to those for Ms Gibb.(d) Ms Robertson – gave her evidence with an air of authority commensurate with her seniority. We sensed a degree of caution perhaps reflective of the fact that she had been a witness in the previous case brought by the claimant against the respondent.(e) Mr Watt – our comments are similar to those for Ms Gibb. He added little to the claimant’s case.(f) Dr Aflleck – a truthful witness but his evidence was not really helpful to us in relation to the issues we had to decide.(g) Ms McIntosh – a good witness who took ownership for her own decisions. We found all of these witnesses to be credible. Where their evidence was in conflict with that of the claimant, we found that the evidence of these witnesses was to be preferred, for the reasons given in the next paragraph.[109]The claimant was a less satisfactory witness. She gave her evidence through the prism of her negative perception of her experience as a student at the University in general and the respondent’s witnesses in particular. She appeared to regard those witnesses (and Ms McIntosh) as conspiring against her when that was simply not supported by the evidence we heard. She demonstrated hostility towards Ms Graham, Ms Gibb, Ms McIntosh and Ms Robertson when questioning them.[110]We also had some concerns about the claimant’s behaviour during the hearing. She was inclined from time to time to interrupt or speak over the witness. She was discourteous to Mr Davies during her cross-examination of Ms Graham on the fourth day of the hearing, referring to him as “this little man” when he objected to her line of questioning. We took a short break at this point and, in fairness to the claimant, she apologised when the hearing resumed.[111]At the start of the fourth day of the hearing, the claimant expressed a concern about being “shut down” during her cross-examination of Ms Graham on the third day. I explained to the claimant that while she was entitled to test the credibility of the respondent’s witnesses, the general thrust of her questions should be focussed on the issues which the Tribunal had to decide. My interventions up to that point had been intended to keep the claimant within the bounds of relevancy.[112]The claimant also expressed a concern about the observers in the hearing room. She referred to what she had perceived as interactions between Ms Graham and an observer, and also to being distracted by an observer looking at her phone. I explained that it was a public hearing which observers were entitled to attend. While I had not seen any interaction between Ms Graham and an observer, I stressed that such interactions must not occur, and that parties/witnesses should not be distracted.[113]We took short breaks at regular intervals during the hearing, particularly between witnesses. We believed that it was consistent with the Tribunal’s overriding objective, to deal with cases fairly and justly, to do so. Submisssions[114]Both the claimant and Mr Davies provided us with written submissions. It was agreed that we would hear oral submissions from Mr Davies first, and matters proceeded in that way after a break following conclusion of the evidence. Respondent[115]Mr Davies, under reference to Chandhok v Tirkey UKEAT/0190/14, stressed the primacy of the claimant’s pled case. She had not offered to prove the essential elements to discharge the burden of proof on her so as to make out a potentially successful discrimination claim.[116]Mr Davies argued that the claimant had failed to make out a prima facie case in that –(a) For many of her allegations, it was unclear that they took place at all.(b) For her direct discrimination claim, she had not proved that the alleged less favourable treatment was because of her Canadian accent.(c) For her harassment claim, she had not proved that the alleged unwanted conduct was related to her nationality.[117]Mr Davies submitted that, if we found sufficient evidence had been given to make out potentially competent claims, the evidence clearly showed that discrimination did not occur. This was because –(a) For the direct discrimination allegations, nationality was not the reason.(b) What happened did not amount to harassment under the EqA.[118]Mr Davies contended that the claimant’s only allegation which had a pled connection to the protected characteristic of nationality, and therefore gave fair notice of a potentially successful claim, was that in respect of her Canadian accent. In relation to this, Mr Davies set out his position in these terms –• The claimant’s case was that this was separate from having her pronunciation corrected, which she appeared to accept was legitimate.• The claimant failed in her evidence-in-chief to explain how correction of accent was factually distinct from correction of pronunciation.• The claimant did not have anything other than a mild accent, so it seemed unlikely that it would require correction at all.• The respondent’s witnesses credibly denied that the claimant’s accent was corrected.• The Tribunal should find that the claimant’s accent as a distinct element was not corrected.• Even if the Tribunal found that the claimant’s accent (as distinct from pronunciation or somehow as an aspect of pronunciation) was corrected, this did not amount to harassment under section 26 EqA because –(1) There was a student/mentor relationship in place, and it was reasonable for a student nurse to be corrected on important matters such as pronunciation of medications by her mentors.(2) The clinical safety requirement to have the names of medications pronounced correctly. Mr Davies submitted that the claimant’s evidence that the correction was done in a hostile way was not credible.[119]Mr Davies argued, in respect of correction of accent as direct discrimination, the claimant had not given notice of a competent claim because –(1) There was no reference to a comparator.(2) There was no pled basis on which the claimant said that the reason for any difference in treatment was her nationality.[120]Mr Davies contended that the claimant’s accent was mild, which made it less likely that it would require correction, and the evidence did not show that her accent was corrected. Even if the Tribunal were to find that the claimant’s accent was corrected, there was no evidence to suggest that this was less favourable treatment on the grounds of her nationality. The evidence of the respondent’s witnesses was clear – correction of pronunciation of names of medications would be done for any student of any nationality. It was a patient safety issue.[121]Mr Davies argued that the claimant had not made out a prima facie case that her removal from her placement and her degree course was on the grounds of her nationality. In any event, these were decisions of the University, not the respondent.[122]Mr Davies made a series of submissions about particular aspects of the claimant’s pled case which we will not rehearse here as they are addressed in our discussion below.[123]In his oral submissions, Mr Davies criticised the credibility of the claimant’s evidence under reference to two matters –(a) Her evidence that her student’s comments on the interim review form (587) were not true indicated that either (i) she had lied when she wrote those comments or (ii) she had lied to the Tribunal when she said those comments were not accurate.(b) The question of who first raised the issue of drinking at work during the meeting on 15 November 2021. The claimant’s denial that she had done so was not credible. That this had been raised by the claimant was confirmed in the evidence of all of the other attendees at the meeting and also in Ms Young’s notes made shortly after the meeting. Claimant[124]Addressing the credibility issues raised by Mr Davies, the claimant said –(a) She admitted that she lied in her student’s comments on the interim review form. It was “a bit of sucking up to get through the placement. It would have been weird to write negative comments.”(b) Ms Graham had wanted to make her (the claimant) look bad and to cover up her own bad behaviour. She (Ms Graham) was capable of saying that the claimant would accuse her of drinking, but it was not possible to drink in the small shared office. The claimant would have reported it if Ms Graham had been drinking and driving. It was another form of exclusion – don’t mention drinking at work in front of the claimant.[125]The claimant argued that it made no difference whether her Canadian accent was mild or strong. Ms Graham and Ms Gibb were trying to focus on it. Even after the claimant played her recording, it remained an issue. The claimant argued that this was the reason behind her being excluded to another room, continuing to have her accent corrected and being told to do the three extra shifts.[126]Referring to the evidence of Ms Robertson about finding an alternative placement at Livilands, the claimant argued that no such placement had existed. Ms Robertson had no intention of sending her there. It was a case of those involved “covering each other’s tracks”.[127]The claimant then spoke at some length about her anxiety and how this affected her. Mr Davies complained that this amounted to fresh evidence rather than submission.
Applicable law
[128]In terms of section 4 EqA, race is a protected characteristic.[129]Section 9 EqA (Race) provides – (1) Race includes – (a) colour; (b) nationality; (c) ethnic or national origins….[130]Section 13 EqA (Direct discrimination) provides –(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.(2) ….(3) ….(4) ….(5) If the protected characteristic is race, less favourable treatment includes segregating B from others….[131]Section 26 EqA (Harassment) provides –(1) A person (A) harasses another (B) if – (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of – (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.(2) ….(3) ….(4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account – (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect….[132]In relation to direct discrimination, in Madarassy v Nomura International plc [2007] EWCA Civ 33 the Court of Appeal (per Mummery LJ at paragraph 56) said – “….The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.”[133]In his written submissions Mr Davies captured this neatly in these terms – “For direct discrimination the Claimant has to prove:• some kind of treatment• less favourable than a comparator• “something more” which supports the argument that it was because of race”[134]Mr Davies provided a similar analysis in relation to harassment – “For harassment, the Claimant has to prove:• unwanted conduct• related to race• purpose or effect of violating dignity or creating an unpleasant atmosphere”
Discussion
[135]We reminded ourselves of the agreed issues and repeat them here for ease of reference –(1) Whether the claimant was directly discriminated against on the grounds of her Canadian nationality.(2) Whether the claimant was harassed, the relevant protected characteristic being her Canadian nationality.[136]We considered that, to address the issues as thus expressed, we had to break them down into a number of constituent parts, much as Mr Davies had done as set out in paragraphs 133 and 134 above. We approached this by looking at each “kind of treatment” and “unwanted conduct” alleged by the claimant, working from her “ET1 Further details” (52-59) which it had been agreed should be treated as the definitive statement of her claims (disregarding the references to indirect discrimination – see paragraph 3(b) above). Correction of Canadian accent[137]The claimant has a discernible, but not strong, Canadian accent. Ms Graham and Ms Gibb believed that she was Canadian. This was based partly on the claimant’s accent and partly on their conversations with the claimant from which her having lived in Canada for a significant portion of her life became apparent.[138]The claimant’s pronunciation of certain medications was incorrect. This was highlighted in Ms Graham’s evidence when she spelt out “Venlafaxine” and the claimant’s mispronunciation of it (see paragraph 26 above). It was the responsibility of Ms Graham and Ms Gibb as the claimant’s mentors to correct this. It was properly considered by them to be an issue of patient safety.[139]While the claimant may have perceived that her accent was being corrected, we accepted the evidence of Ms Graham and Ms Gibb that it was the claimant’s pronunciation of the medications, and not her accent, which was incorrect and needed to be corrected. We were satisfied that Ms Graham and Ms Gibb had corrected mispronunciation by students in the past, regardless of nationality. We found this had nothing to do with the claimant being perceived to be Canadian and/or her speaking with a Canadian accent.[140]In relation to the claim of direct discrimination, we noted Mr Davies’ argument that the claimant had not referred to a comparator in her claim as pled. While that was true in the literal sense, it was apparent from questions put to Ms Graham and Ms Gibb during examination-in-chief that the respondent understood the claimant to be asserting a difference in treatment compared with other students. In his written submissions Mr Davies said “A hypothetical comparator could be someone of a different nationality, with an accent, whose accent was not corrected when pronouncing names of medication”.[141]Our view of this was that it was not fatal to the claim of direct discrimination that the claimant had not stated expressly that she was relying on a hypothetical comparator. We considered that it was implicit in the claimant’s case as pled that she was asserting that a student nurse who did not have a Canadian accent would have been treated differently, ie more favourably, than she was. We agreed with Mr Davies’ description of the hypothetical comparator.[142]We identified two problems for the claimant in her direct discrimination claim based on her Canadian accent. The first was that the treatment was not correction of her Canadian accent, but correction of her mispronunciation. The second was that the treatment was not because of a protected characteristic, but rather because mispronunciation of medication was a patient safety issue. This meant that the direct discrimination claim relating to the claimant’s Canadian accent could not succeed.[143]Turning to harassment, the unwanted conduct was the correction of the claimant’s mispronunciation of medications. We found that this was not related to race, ie the claimant’s perceived Canadian nationality. It was related to patient safety. Accordingly, the harassment claim fell at the first hurdle – in terms of section 26(1)(a) EqA, the unwanted conduct was not related to a relevant protected characteristic.[144]Having so found, we did not require to consider whether the unwanted conduct had the proscribed purpose or effect in terms of section 26(1)(b) EqA, and section 26(4) EqA was not engaged. The harassment claim relating to the claimant’s Canadian accent did not succeed. Criticism of the claimant’s academic level[145]The claimant’s position was that this had occurred and was direct discrimination. Mr Davies invited us to find that it did not happen. We were with Mr Davies on this – see paragraphs 100 and 101 above. On that basis we found no discrimination here. Ending placement and expulsion from nursing degree[146]The claimant asserted that these were acts of direct discrimination. Mr Davies argued that the claimant had not made out a prima facie case that this treatment was on the grounds of her nationality. Our view of this was that the claimant’s treatment – having her placement cancelled and being withdrawn for her degree course - was at the hands of the University and not the respondent (see paragraphs 83 and 94/95 above). It could not form the basis of a discrimination claim against the respondent. Interim review[147]The complaints made by the claimant in her pled case were that Ms Graham was refusing to sign off her skills “as a control method” and was “dangling this like a carrot as she continued to taunt and bully me over my accent”. The evidence did not support these assertions – see paragraph 40 above. Ms Graham told us (in relation to the interim review) “I felt at that point we could support [the claimant] with the gaps in her knowledge and move forward to passing”. We believed this to be true. We found that the unfavourable treatment alleged here by the claimant simply did not occur, and there was therefore no discrimination. Ms Gibb’s offer of help[148]This related to Ms Gibb’s email to the claimant of 12 November 2021 (888). Our findings in relation to this are set out at paragraph 30 above. It was a genuine offer of help by Ms Gibb.[149]The claimant has sought to characterise this email as harassment and direct discrimination. In relation to direct discrimination, and assuming the hypothetical comparator to be as identified by Mr Davies – see paragraph 140 above, we found that the claimant was not treated less favourably. The same language in an email by Ms Gibb to the comparator in the same circumstances would equally have been a genuine offer of help. It was in no sense treatment of the claimant because of her Canadian nationality. This was not direct discrimination.[150]In relation to harassment, even if Ms Gibb’s email was perceived by the claimant as unwanted conduct –(a) We did not believe it could be said to relate to the claimant’s Canadian nationality per section 26(1)(a) EqA. It related to the claimant’s difficulty with the pronunciation of certain medications and the potential impact on patient safety.(b) It was not reasonable for the conduct to have the proscribed effect, per section 26(4)(c) EqA. We regarded that conclusion as inevitable given our finding that it was a genuine offer of help. There was no harassment here. Claimant’s email of 12 November 2021[151]The claimant’s assertion in her pled case (in which she erroneously refers to this email being dated 13 November 2021) was that she “did not receive a clear answer and was told it would be discussed at the meeting which it never was” and that this was direct discrimination. The claimant’s assertion that the matters raised in her email of 12 November 2021 (901) were not discussed at the meeting held on 15 November 2021 was contradicted by the email Ms McIntosh sent shortly after the meeting ended (917). This provided the “clear answer” the claimant alleged she had not received and confirmed that matters were discussed at the meeting.[152]We found nothing here which amounted to less favourable treatment than a hypothetical comparator, and nothing upon which the treatment could be said to be because of the claimant’s Canadian nationality. A comparator who was thought to require practical experience of medication administration would have been treated in the same way. The reason for the treatment was to allow the claimant to gain that experience and was unrelated to her Canadian nationality. There was no discrimination. Cancellation of insight visit[153]Our findings about this are at paragraph 47 above. We accepted Ms Graham’s evidence that she cancelled one insight visit organised by the claimant because the claimant had arranged to visit the wrong team. That treatment of the claimant had nothing to do with her Canadian nationality, and was not discriminatory. Snarling[154]Our finding (at paragraph 33 above) that Ms Graham did not snarl at the claimant was sufficient to deal with this point. The alleged treatment did not occur.[155]We would add that the claimant appeared to use the word “snarl” quite frequently. It seemed to us that when someone told the claimant something which she did not like, she tended to accuse them of snarling at her. She used the word as a form of retaliation. Being made to sit in another office[156]We have made our findings about this under “Isolation” above. Our view of the evidence is set out at paragraph 52 above. The claimant was not, as she has alleged, made to sit in another office alone for most of her shifts. She was asked to go to another office for valid reasons of confidentiality and/or privacy. This had nothing to do with her Canadian nationality. We found no discrimination here. Fridays/Being overloaded with work/Being “grilled”[157]It is convenient to deal with these three points together because we did the same in our findings in fact – see above under “Workload”.[158]It was clear from the evidence that the claimant was given Friday as a study day. It appeared that there might have been some past variation in practice in terms of giving students a study day. That did not however mean that there was anything wrong with the claimant being given Friday as a study day.[159]We did not find that the claimant was given an excessive workload. We accepted the evidence of Ms Graham that the claimant chose to do more work than she was asked to do – see paragraph 22 above. Similarly, we did not find that the claimant had been “grilled” by Ms Graham and Ms Gibb – see paragraph 25 above.[160]In short, we found that the treatment said by the claimant to be discriminatory did not occur (in the cases of being overloaded with work and being “grilled”). Being given Friday as a study day was unrelated to the claimant’s Canadian nationality and was not discriminatory.[161]The claimant also alleged that being overloaded with work and being “grilled” was unwanted conduct in terms of section 26 EqA (Harassment). Our finding that the alleged unwanted conduct did not occur was sufficient to dispose of this point. We would add that these matters were unrelated to the claimant’s Canadian nationality. Ms Graham saying “Yep”[162]We have recorded our findings in fact about this at paragraphs 77-78 above. Ms Graham’s reasons for her brief response to the claimant were that she was not feeling good at the time, and felt threatened by the claimant personally and professionally. We found this to be credible evidence which demonstrated that the treatment complained of by the claimant had nothing to do with the claimant’s nationality, and was not discriminatory. Meeting on 15 November 2021[163]The claimant made two points here –(1) She said that once she proved she was competent in medications, and her mentors had no reason to fail her, she was told that it was not about her competency in medications but her attitude towards learning.(2) She referred to being accused by Ms Young of wasting an hour of everyone’s time at the end of the meeting.[164]In relation to point (1), we found it concerning that the claimant believed that she had “proved she was competent in medications”. This seemed to us to indicate that she had missed the point of being asked to do the three ward shifts. Ms McIntosh’s email of 15 November 2021 (917) could not have been clearer – it was about gaining practical experience of the application of medication knowledge. The claimant said on a number of occasions that she had a “humble” attitude to learning. Her assertion that she had proved her competence in medications demonstrated exactly the opposite.[165]We found there was no less favourable treatment of the claimant compared with a hypothetical comparator. Any student nurse thought to need practical experience of the application of medication knowledge would have been treated in the same way. There was no connection between the treatment and the claimant’s Canadian nationality.[166]There was also no harassment here. If receiving an explanation of why being asked to do the three ward shifts was reasonable amounted to unwanted conduct, then(a) it was not related to the claimant’s nationality but rather to the need for her to demonstrate competence in the application of her medication knowledge, which in turn related to patient safety and(b) it was not reasonable for the conduct to have that effect. There was a valid reason for the claimant being asked to the three ward shifts, as described by Ms McIntosh in her email of 15 November 2021 (917).[167]In relation to point (2), our finding that we were not persuaded that Ms Young had accused the claimant of wasting an hour of everyone’s time (see paragraph 74 above) effectively dealt with this. It was neither direct discrimination nor harassment. False narrative[168]The claimant’s allegation was that the respondent’s staff and the University created a “false narrative” that she caused them stress to end her placement and then refer her to FTP. We found no substance in this. We found that the evidence demonstrated that the claimant did behave badly at the meeting on 15 November 2021 and that her behaviour resulted in Ms Graham being absent from work following a diagnosis of stress. Further and in any event, ending the claimant’s placement was a decision of the University, not the respondent.
Disposal
[169]For the reasons set out above, we decided that the claimant’s claims of direct race discrimination and harassment did not succeed and required to be dismissed.