Miss A Thawes v Manpower UK Ltd and NNB Generation Company (HPC) Ltd: 6000718/2023
EMPLOYMENT TRIBUNALS
Case No 6000718/2023
Between
Miss A. ThawesClaimantManpower UK Ltd and NNB Generation Company (HPC) LtdRespondent
Before
Employment Judge G. KingMr N. Brockley - counsel for claimantDate 26 July 2024
JUDGMENT
[1]The Claimant’s claim against the First Respondent is not well founded and is dismissed.[2]The Claimant’s claim against the Second Respondent is not well founded and is dismissed.
REASONS
[1]By a Claim Form dated, the Claimant brought the complaints of victimisation further to s.27 Equality Act 2010.[2]The Tribunal had the benefit of a bundle of 412 pages (including index). Where pages of that bundle referred to in this Judgment they are done so in [square brackets].[3]The Tribunal had a witness statement from the Claimant, Anne-Marie Thawes, and she was cross examined on her evidence. The Tribunal also had a statement from the Claimant’s partner, Alan Wilkinson. His statement was only relevant to issues in relation to remedy and the Claimant’s representative did not call Mr Wilkinson as a witness during the liability hearing. Case No: 6000718/2023 10.8 Reasons – rule 62(3)
hearing.
[4]The Tribunal had witness statements and heard from Abby Smith, Ellie Simpson, and Christine Taylor on behalf of the First Respondent. The Tribunal also had witness statement and heard from Elizabeth (Lizzie) Terrett and Sarah Taylor on behalf of the Second Respondent.[5]Where evidence from witness statement is referred to in this Judgment, it is done so in square brackets with the followed by the number of the paragraph of the witness’s statement, e.g. [AMT 1] for the first paragraph of the Claimant’s statement.
The Issues
[6]The issues in this case were set out the Case Management Order dated 19 October 2023 [ 61]. The Claimant was professionally represented at this case management hearing. The case management order was sent the parties on 23 October 2023 and the parties had 14 days from that date to inform the Tribunal if the list of issues was wrong or incomplete. That date was therefore 6 November 2023. There was no challenge from either party to the list of issues, nor was there any application from the Claimant to amend her case. The list of issues for this Tribunal therefore was the one set out on page 61, namely:
The Issues
[1]Did the Claimant do protected acts as follows:a. Grievance issued on 28 September 2021b. Grievance issued on 27 September 2022c. Grievance issued on 14 February 2023[2]Were any of the allegations false and made in bad faith pursuant to s.27(3) Equality Act 2010? Allegation One[3]Did the First and Second Respondent terminate the Claimant’s assignment on 21 April 2023?[4]By doing so, did the Respondents subject the Claimant to a detriment?[5]If so, was it because the Claimant had done the protected acts? Allegation Two[6]Did the First Respondent fail to provide the Claimant with any assignment work between 21 April 2023 and 19th October 2023?[7]By doing so, did the First Respondent subject the Claimant to a detriment?[8]If so, was it because the Claimant had done the protected acts? 7. On the first day of this hearing, the Claimant confirmed that she was withdrawing the second allegation against the First Respondent. The sole issue for the Tribunal to determine was therefore in relation to the termination of the Claimant’s assignment with the Second Respondent. Case No: 6000718/2023 10.8 Reasons – rule 62(3) 8. It was conceded by both Respondents either prior to or during the course of this hearing that the Claimant’s grievances of 28 September 2021, 27 September 2022, and 14 February 2023 do constitute protected acts as defined by the Equality Act 2010.[9]The Respondents further accept that the ending of the Claimant’s assignment on 21 April 2023 would amount to a detriment.[10]It was agreed that, for ease, the Second Respondent would be referred to during the hearing as “EDF” and this has been continued into this Judgment where necessary.
Findings of Fact
[11]The Claimant was employed as a data controller by the First Respondent from 25 November 2019 to the termination of her assignment on 21st April 2023. She was placed with EDF based at EDF Hinkley Point C.[12]The Claimant commenced a role as a document controller. She was based at the Second Respondent’s offices at Hinkley Point in Somerset (known as HPC). After March 2020, her role involved working exclusively from home.[13]The team she started in had approximately ten people. That team dealt with contracts relating to specific buildings within the HPC construction site. The Claimant was given further responsibilities, including issuing document packages to the Office for Nuclear Regulation.[14]The Claimant’s initial team manager was Joanne Prosser. She moved to another department and was replaced by Russell Williams. Laura Coles was made the document controller and was her direct line manager.[15]Raised a grievance about her line manager, Laura Coles, on 28 September 2021 [100 – 104]. This related to ongoing issue she had with Laura Coles. The Tribunal did not need to make any findings in relation to the substance of this grievance, suffice to say that it was made and, as conceded by the Respondents and as noted above, did constitute a protected act for the purposes of the Equality Act 2010.[16]After the Claimant’s first grievance on 28 September 2021, she was moved to another team. There were seven members in that team and Russell Williams became the Claimant’s direct line manager. There was a grievance meeting held between the Claimant and Abby Smith, who was employed by the First Respondent as an EDF Service Delivery Lead. The subject of the Claimant grievances and the outcome did not form part of the list of issues and the Tribunal did not need to make findings in respect of the Claimant’s grievance. An outcome was provided to the Claimant by email, from Abby Smith, on 18th every 2022 [155 – 166]. The Claimant did not fully accept the outcome [169 – 170].[17]On return from sick leave in 2021, the Claimant was moved to another department to cover a member of staff who had been on maternity leave. Case No: 6000718/2023 10.8 Reasons – rule 62(3) Russell Williams remained the Claimant’s direct line manager, and this was confirmed to her on 21 October 2021 [110].[18]The Claimant was off work due to sickness from 3 March 2022 until 1 June 2022 [180]. She was admitted to Taunton and Western General Hospital on 26 March 2022 via A&E with chest pains and nausea and vomiting. She was discharged on the same day but admitted onto the Acute Medical Unit in Musgrove Hospital on 5 April 2022, again with chest pains. She was discharged on 22 April 2022.[19]The Claimant made a second grievance on 27 September 2022 [195]. It included a complaint in relation to race discrimination and, as conceded by the Respondents, amounted to a protected act.[20]A hearing in relation to the second grievance took place on 21 October 2022 [196 – 212]. Again, the Tribunal did not need to make findings in relation to the content of that grievance, is not part of the List of Issues. As well as the allegations of race discrimination, the Claimant raised the subject of her working relationship with Russell Williams.[21]An outcome to the Claimant second grievance was sent to her on 20 December 2022 [231 – 241]. On the same date, the Claimant’s received an email from the First Respondent confirming that her assignment would be extended until 31 December 2023 [250].[22]The Claimant was off work due to sickness from 3 January 2023 to 10 February 2023. She attended a return-to-work meeting on 10th every 2023 and straight after this meeting she sent an email requesting some proposed adjustments which she wanted the Respondents to put in place [276]. She followed this up on 14 February 2023 with a further email and attached grievance letter [277 – 280][23]on 16th every 2023 the Claimant sent an email to Ellie Simpson, regarding a right of appeal in relation to her second grievance. The Claimant did not receive a reply and so sent a chaser email on 7 March 2023. Ellie Simpson replied and confirmed that the Claimant had no further right of appeal [328 – 329].[24]The Claimant attended a grievance hearing in relation to her first grievance on 1 March 2023. The meeting was chaired by Christine Taylor. Following this meeting, on 2 March 2023, Christine Taylor asked for the Claimant permission to request a medical report from her GP. The Claimant returned the consent form on 10 March 2023 [292 – 295].[25]On 14 April 2023, the Claimant was sent a meeting request by Russell Williams. Mr Williams said the purpose of the meeting was to look at the Claimant workload and any issues. The Claimant explained to Chelsea Lindsay, from the First Respondent, that she required an additional person present at the meeting or else she would not be able to attend. Ms Lindsay told the Claimant that if the Claimant was unable to attend the meeting, then the First Respondent would support the Claimant in finding alternative assignment. The Claimant declined the meeting invitation [296 – 298]. Case No: 6000718/2023 10.8 Reasons – rule 62(3)[26]On 21 April 2023, the Second Respondent terminated the Claimant’s assignment. The Claimant was informed about this by phone call from Ms Lindsay and by letter which was sent by email [299 – 200]. This ended the Claimant’s assignment with the Second Respondent. The Claimant did not proceed with her third grievance as she saw no reason to, being no longer working for the Second Respondent [307]. The Law Victimisation
The Law
[27]Section 27 of the Equality Act 2010 prohibits victimisation. S. 27 Victimisation(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a)B does a protected act, or (b)A believes that B has done, or may do, a protected act.(2) Each of the following is a protected act— (a)bringing proceedings under this Act; (b)giving evidence or information in connection with proceedings under this Act; (c)doing any other thing for the purposes of or in connection with this Act; (d)making an allegation (whether or not express) that A or another person has contravened this Act.(3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.(4) This section applies only where the person subjected to a detriment is an individual.(5) The reference to contravening this Act includes a reference to committing a breach of an equality clause or rule.[28]The Claimant does not need to show a comparator, but she must prove that she did a protected act and that she was subjected to a detriment because she had done that protected act. As with direct discrimination, it is not necessary for the Claimant to show conscious motivation, it is sufficient that the protected characteristic or protected act had a significant influence on the outcome (Nagarajan v London Regional Transport [2000] 1 AC 502, as confirmed by Warburton v Chief Constable of Northamptonshire Police [2002] EAT 42).[29]In considering the burden of proof, the Tribunal referred to s.136 Equality Act 2010 and the guidance set out in the case of Igen Ltd v Wong [2005] IRLR 258, CA as approved in Madarassy v Nomura International Plc [2007] Case No: 6000718/2023 10.8 Reasons – rule 62(3) IRLR 246, CA. This guidance reminds the Tribunal that it is for the Claimant to prove facts from which the Tribunal could conclude, in the absence of adequate explanation, that the employer has committed an act of unlawful discrimination. The outcome at this stage of the analysis will usually depend upon what inferences it is proper to draw from the primary facts found by the Tribunal. Where the Claimant has proved such facts, the burden of proof moves and it is necessary for the employer to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the prohibited ground.[30]In considering whether the burden of proof has shifted, the Tribunal should not adopt an overly mechanistic approach but rather consider whether discrimination can properly and fairly be inferred from the evidence, Laing v Manchester City Council [2006] IRLR 748. A Tribunal will be setting an impermissibly high hurdle, however, if it asks if discrimination is the only inference which could be drawn from the facts, Pnaiser v NHS England and Coventry City Council [2016] IRLR 170, EAT. Deliberation[31]Following the List of Issues and the concessions made as noted above, the first question the Tribunal needed to consider was therefore “who made the decision to terminate the Claimant’s assignment?”.[32]The second question was “was the Claimant’s assignment terminated because the Claimant had done the protected acts?”.[33]The correct legal test, as per Warburton v Chief Constable of Northamptonshire Police [2002] EAT 42, is whether the protected act had a significant influence on the outcome. The Tribunal is therefore required to make a determination on what was in the mind of the decision maker or decision makers at the time the decision was made.[34]First, it is necessary for the Tribunal to determine who made the decision to terminate the Claimant’s assignment. During the Claimant’s evidence - and the Tribunal found the Claimant to be overall and honest and credible witness - the Claimant candidly and frankly said that she did not know what discussions had passed between the first and Second Respondents, as she was not privy to those discussions.[35]The First Respondent’s case is that it was not involved in the decisionmaking process at all, and the decision was taken solely by the Second Respondent. The Second Respondent agrees with this position, and the evidence of Sarah Taylor is that she alone took the decision to terminate the Claimant’s assignment.[36]Taking the Claimant’s case at its highest, her case is that she does not know if there was collusion between the First and Second Respondents in relation to the decision to terminate her assignment. The Tribunal has been invited to infer that this collusion existed due to the close nature of the relationship between the two Respondents and the amount of correspondence between them on the subject of the Claimant’s grievances. Case No: 6000718/2023 10.8 Reasons – rule 62(3)[37]The Tribunal considered the email correspondence between the first and Second Respondents in relation to the Claimant’s grievances in particular the various emails between [251] and [276]. There is nothing in these emails to suggest that the First Respondent is having any influence on the Second Respondent, or vice versa. The amount of email correspondence is not excessive, especially considering this is a relationship where the Claimant was employed by the First Respondent but was doing work for the Second Respondent. The emails raise appropriate questions and appropriate answers are given. There is nothing in the communication between the First Respondent and the Second Respondent that would suggest to the Tribunal that the First Respondent was involved in the decision to terminate the Claimant’s assignment.[38]The Tribunal was also invited to look at the fact that the outcome letter of the second grievance was shared with the Second Respondent. This is requested by Lizzie Terrett by email [258]. The email from Lizzie Terrett was sent at 17:16 on 20 December 2022. This is one minute after the second grievance outcome letter had been sent to the Claimant [231]. The request from Lizzie Terrett [258] states: “are you able to share the outcome letter with me, as I would like to speak to Russell tomorrow and make sure I am clear with the wording being used to ensure no errors when communicating”.[39]The Tribunal was satisfied that this is entirely reasonable request. The Second Respondent would need to know what the grievance outcome letter said, as it would potentially affect the working arrangements between the Second Respondent and the Claimant. It was briefly suggested that the Second Respondent saw the outcome letter before it had been sent to the Claimant, but it is clear from the email chain that both the request from the Second Respondent to see the outcome letter, and the sending of the outcome letter to the Second Respondent, occur after it was sent the Claimant. The Tribunal was satisfied that this is an entirely normal and reasonable arrangement, and nothing here suggest that there is any collusion between the First Respondent and the Second Respondent in relation to the decision to terminate the Claimant’s assignment.[40]The Respondents’ evidence on this point was clear and concise. Both Abbie Smith and Ellie Simpson, giving evidence on behalf of First Respondent, said that they were not involved in the decision to terminate the Claimant’s assignment and believed that EDF made the decision, although they did not know who in EDF made that decision. Their evidence on this point was credible and was accepted by the Tribunal. Christine Taylor, also giving evidence on behalf the First Respondent, was able to go further, and she said in her evidence that Sarah Taylor, at EDF, made the decision to terminate the Claimant’s assignment. Her evidence on this point was also credible and believable.[41]The Tribunal further found that Lizzie Terrett and Sarah Taylor were both convincing and credible witnesses. Lizzie Terrett’s evidence was that she was not involved in the decision-making process and it was solely Sarah Case No: 6000718/2023 10.8 Reasons – rule 62(3) Taylor who took the decision. Sarah Taylor’s evidence entirely agrees with her on this point, and Sarah Taylor confirmed that she and she alone took the decision to terminate the Claimant’s assignment.[42]The Tribunal has considered the Claimant’s case, that collusion can be inferred from the actions of the First and Second Respondents, and contrasted this to the corroborative and supporting evidence of all the Respondent’s witnesses. The Tribunal accepted the Respondent’s evidence and is satisfied that the decision to terminate the Claimant’s assignment was made by Sarah Taylor and her alone.[43]The Claimant’s claim against the First Respondent therefore fails, as the First Respondent did not terminate the Claimant’s assignment.[44]Having identified that Sarah Taylor was the one who terminated the Claimant’s assignment, the Tribunal must consider the reason or reasons why she did this.[45]In relation to the third protected act, which is the grievance of 14 February 2023, the Tribunal has looked at the timeline of events which led up to this.[46]On 10 February 2023, the Claimant sent an email to Chelsey Lindsay and Abbie Smith, employees of the First Respondent, entitled “request for reasonable adjustments (equality act 2010)” [276]. Importantly, this was sent to the First Respondent only, as is completely understandable, as the First Respondent was the Claimant’s employer. In this email, the Claimant requests reasonable adjustments to her working arrangements of: provide an intermediary between myself and Russell Williams or alternatively a nominated third party be included on any calls between myself and Russell Williams, and this individual has no prior knowledge of my grievances with regard to team meetings, can a nominated third party be in attendance? That I’m not required to have my video switched on during team meetings[47]On 13 February 23, Abbie Smith replied to the Claimant’s request [309], and, in short, refused the things the Claimant has asked for, with the partial exception that she was not required have a camera on during every meeting but on occasion as may be requested. During her evidence, Abbie Smith said that these adjustments would have been “run by” someone at EDF. She said this would have been by phone call but she could not recall who with. She did confirm that she primarily liaised with Lizzie Terrett and the Tribunal found that this “run by” of the requests would have been to Lizzie Terrett.[48]The Tribunal found it important to note that at this point, there was no grievance. It is also important that the requests related to the Claimant’s ongoing relationship with her line manager, Russell Williams, and also her participation more broadly in team meetings. Case No: 6000718/2023 10.8 Reasons – rule 62(3)[49]On 14 February 2023, the Claimant then submitted a grievance (the third grievance) to the First Respondent in relation to failure to make these requested adjustments. This third grievance was investigated by Christine Taylor.[50]The Tribunal accept that Lizzie Terrett was not aware of the existence of the third grievance until an email from Christine Taylor on 15 March 2023 [290]. This email, from Christine Taylor to Lizzie Terrett, explains that Christine Taylor is investigating a grievance raised by the Claimant. She does not detail what the grievance is. Christine Taylor asks two questions of Lizzie Terrett which are: “AMT has requested as a reasonable adjustment that an intermediary be there on each meeting/call that takes place with RW, can we have your thoughts?” And: “would you consider moving AMT in order that she has a new manager?”[51]It is not obvious from Christine Taylor’s email what the substance of the third grievance is and how these two questions relate to the third grievance. The Tribunal accepted that Lizzie Terrett could not have known what the substance of the third grievance was from this email.[52]In her evidence to the Tribunal, Lizzie Terrett said that she had not seen the third grievance and did not know what is contained, and therefore was unaware that it would constitute a protected act.[53]There is no mention in this email [290] of disability or health, and as set out above, the requests seem to relate entirely to the Claimant’s relationship with her line manager, Russell Williams. It is worth noting at this point that s.20 of the Equality Act concerns a duty to make adjustments, and this duty is only applicable to disabled persons. The Tribunal accept that the Claimant had raised the issue of health and disability in her third grievance, but the email of Christine Taylor to Lizzie Terrett on 15 March does not mention that. Reasonable adjustments under the Equality Act are not available to someone in relation to claims of bullying and harassment. The Tribunal found it would be entirely reasonable for Lizzie Terrett to conclude that the Claimant’s third grievance was in relation to her ongoing relationship with Russell Williams. It was therefore reasonable of Lizzie Terrett to conclude that these requests were adjustments to her working arrangement, not reasonable adjustments engaging the Equality Act as per s.20.[54]The Tribunal accepted that this was not in fact what the Claimant was arguing, but the details of those arguments at this point were only known between the Claimant and the First Respondent. The Tribunal was satisfied that Lizzie Terrett had no knowledge that the third grievance would form a protected act. Case No: 6000718/2023 10.8 Reasons – rule 62(3)[55]This is important as the information that Sarah Taylor had was given to her by way of discussions with Lizzie Terrett. If Lizzie Terrett did not know about the third protected act, then it is not possible that Sarah Taylor could have known about the third protected act. The Tribunal therefore finds that the third protected act cannot have formed any part of the decision-making process of Sarah Taylor.[56]The Tribunal then looked at grievance one and grievance two. The Tribunal found it was significant that the Claimant’s assignment was extended in November 2022 [250], which was after the first and second protected acts (grievance one and grievance two). The Claimant’s explanation of this is that it was a deliberate act designed, as she put it: “the plan was to make my working life unbearable so I would leave. I think they would think this was a much easier way.”[57]On this point, the Tribunal does not find the Claimant’s evidence to be credible. The Respondents’ actions show, in the view of the Tribunal, that the Respondents genuinely did want to continue working with the Claimant. This is borne out further by the fact that more support was offered to the Claimant in January 2023 [251].[58]The Second Respondent’s case is that the Claimants this assignment was terminated due to: not engaging in team meetings not engaging a one-to-one meeting set up with line manager not fulfilling reasonable request by line manager to attend engaging meetings[59]These are the reasons stated in the termination letter [299].[60]The Tribunal has examined this in some detail. The first point is that the Claimant did not engage in team meetings. Her evidence is that she did; she was always prepared, and she had notes in relation to her meetings. This may have been the case prior to the second grievance, but it is clear from the documentary evidence that the Claimant did not participate in team meetings during the investigation of the second grievance. This was because the First Respondent told her she did not need to. On conclusion of that investigation, however, the evidence of Lizzie Terrett is that she expected the Claimants to revert to “business as usual”. This is confirmed in the email exchange at [254] and [252], and also at [317] and [318]. This would involve attending team meetings.[61]The Tribunal looked previously, and do so again, that the instructions from the First Respondent from 13 February, where the Claimant was told that she did need to participate in meetings [309]. The Claimant’s evidence is that she “understood” that the arrangement where she did not have to participate continued, but there is nothing in evidence before the Tribunal that suggests this is so. Case No: 6000718/2023 10.8 Reasons – rule 62(3)[62]The Tribunal found that the Claimant’s non-engagement in team meetings continued into March and beyond.[63]The second ground the Second Respondent relies on is that the Claimant was refusing to engage in one to one meetings with her manager. The Claimants evidence is that this is completely wrong. She points to the fact that she refused one meeting. The Tribunal however, notes that the meeting that was declined was a recurring meeting. It was to happen every fortnight at the same time. The Claimant declined the series of meetings. The Tribunal therefore finds that the Claimant did therefore decline multiple meetings with her line manager, even though the majority of these were future meetings.[64]The Claimant was also unable to give a satisfactory answer as to what would have happened if another meeting on the same terms had been proposed. She said she was waiting for the reasonable adjustments to begin. The Tribunal’s view was these adjustments would never have begun. It is clear that these were declined on two occasions, and, although the Tribunal did not need to make a finding on this point, the Tribunal was satisfied that the arrangements being proposed by the Claimant were unlikely to be reasonable in any event. The Tribunal was of the view that it is unlikely that any business could function with a worker refusing to engage in meetings with her line manager without the presence of an intermediary. This is simply not a reasonable adjustment and therefore the Tribunal was satisfied it would not have been granted. The Claimant’s refusal to engage in one-to-one meetings without this in place therefore must necessarily mean that she was refusing to engage in all future meetings with her line manager.[65]It therefore follows, that requests to engage in such meetings were reasonable management instructions from the Second Respondent. The Claimant was refusing to comply with these requests, and this makes out the third ground relied on by the Second Respondent for terminating the assignment.[66]The question for the Tribunal is therefore what had a significant influence on the outcome of the decision to terminate the assignment? Was it the Claimant’s grievances of 28 September 2021 and 27 September 2022? Or was it the concerns about how the Claimant could be managed and the Claimant not fulfilling the requirements of her role that have been brought to Sarah Taylor’s attention from 10 February 2023 and during March and April 2023?[67]The evidence of Sarah Taylor was that she believed that grievance one and grievance two had been dealt with and closed down. Sarah Taylor was a credible witness, and the Tribunal accepted her evidence on this point. The Tribunal was satisfied that the first and second protected acts, i.e. grievance one and grievance two, did not influence Sarah Taylor’s decision-making process when she decided to terminate the Claimants assignment with the Second Respondent. The things that had a significant influence on her decision were the reasons as set out in the termination letter [299] and as discussed above, and the Tribunal found these were genuine reasons. Case No: 6000718/2023 10.8 Reasons – rule 62(3)[68]The Claimant’s claim against the Second Respondent therefore also fails.