Mrs J Sharpe v Department for Work and Pensions and Ms A Walker: 6001793/2024
EMPLOYMENT TRIBUNALS
Case No 6001793/2024
Between
Mrs J SharpeClaimantDepartment for Work and Pensions and Ms A WalkerRespondent
Before
Employment Judge BrewerIn person for claimantMr J Jolliffe (instructed by Counsel) for respondentDate 24 June 2026
JUDGMENT
The unanimous judgment of the Tribunal is as follows,[1]The claimant’s claim for direct age discrimination fails and is dismissed.[2]The claimant’s claim for indirect sex discrimination fails and is dismissed.[3]The claimant’s claim for harassment related to age fails and is dismissed.[4]The claimant’s claim for part-time worker detriment fails and is dismissed.
REASONS
[1]This case came before us for a final hearing over three days. The claimant represented herself and the respondents were represented by Mr Jolliffe of Counsel.[2]The parties agreed a list of issues and a bundle of relevant documents running to 201 pages. 1 of 26[3]We had written witness statements and heard live evidence from the claimant, Mr Lee Sharpe, the claimant’s husband, and for the respondent, from Ms Deborah Woodcock, Head of Strategic Relationships and Ms Adele Walker, currently Strategic Lead in the Jobs and Careers Service Programme but during the period that this claim relates to she was a Grade 6 Service Leader in the Leicestershire, Cambridgeshire and Rutland district, a role she started in in September 2023.[4]We completed the evidence and heard submissions in the afternoon of day two. The Tribunal deliberated and we delivered our judgment on day three. This written judgment and reasons is the definitive judgment in this case.
Issues
[5]The agreed issues are set out in the Appendix below.
Law
[6]We set out here a brief description of the relevant law. Discrimination claims – general burden of proof[7]Section 136, Equality Act 2010 (EqA) sets out the burden of proof in the following terms: “136 Burden of proof(1) This section applies to any proceedings relating to a contravention of this Act.(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.(3) But subsection (2) does not apply if A shows that A did not contravene the provision…”[8]In this context ‘A’ is a reference to the respondents. Time limits[9]The relevant parts of section 123 of the EqA is in the following terms: “123 Time limits (1) Subject to section 140B proceedings on a complaint within section 120 may not be brought after the end of— 2 of 26 (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (c) failure to do something is to be treated as occurring when the person in question decided on it…”[10]The time limit in respect of the claim under the PTW Regulations is as follows, “Complaints to employment tribunals etc. 8.—(1) Subject to regulation 7(5), a worker may present a complaint to an employment tribunal that his employer has infringed a right conferred on him by regulation 5 or 7(2). (2) Subject to paragraph (3), an employment tribunal shall not consider a complaint under this regulation unless it is presented before the end of the period of three months (or, in a case to which regulation 13 applies, six months) beginning with the date of the less favourable treatment or detriment to which the complaint relates or, where an act or failure to act is part of a series of similar acts or failures comprising the less favourable treatment or detriment, the last of them. (2A) Regulation 8A (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of paragraph (2). (3) A tribunal may consider any such complaint which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so…”[11]Regulation 8A extends time for early conciliation.[12]Given the dates of the incidents complained of, the conciliation period and the time limit in s.123 EqA, the complaint relating to the 3 October 2023 decision may be out of time. The questions for the Tribunal to decide are, 12.1. whether the claim was made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates, 12.2. if not, was there conduct extending over a period, 3 of 26 12.3. if so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?[13]If not, were the claims made within a further period that the Tribunal thinks is just and equitable? Conduct extending over a period[14]The leading case on this issue is Commissioner of Police of the Metropolis v Hendricks 2003 ICR 530, CA, in which the Court of Appeal made it clear that it is not appropriate for employment tribunals to take too literal an approach to the question of what amounts to ‘continuing acts’ by focusing on whether the concepts of ‘policy, rule, scheme, regime or practice’ fit the facts of the particular case. Those concepts are merely examples of when an act extends over a period and should not be treated as a complete and constricting statement of the indicia of ‘an act extending over a period’.[15]The question is whether there was an act extending over a period, as distinct from a succession of unconnected or isolated specific acts for which time would begin to run from the date when each specific act was committed. Just and equitable extension[16]In Robertson v Bexley Community Centre t/a Leisure Link 2003 IRLR 434, CA, the Court of Appeal stated that when employment tribunals consider exercising the discretion under what is now s.123(1)(b) EqA, ‘there is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse. A tribunal cannot hear a claim unless the claimant convinces it that it is just and equitable to extend time. So, the exercise of discretion is the exception rather than the rule.’[17]However, this does not mean that exceptional circumstances are required before the time limit can be extended on just and equitable grounds. The law does not require this but simply requires that an extension of time should be just and equitable — Pathan v South London Islamic Centre EAT 0312/13.[18]A Tribunal considering whether it is just and equitable to extend time is liable to err if it focuses solely on whether the claimant ought to have submitted his or her claim in time. Tribunals must weigh up the relative prejudice that extending time would cause to the respondent on the one hand and to the claimant on the other.[19]In exercising their discretion to allow out-of-time claims to proceed, tribunals may also have regard to the checklist contained in s.33 of the Limitation Act 1980 (as modified by the EAT in British Coal Corporation v Keeble and ors 1997 IRLR 336, EAT). S.33 deals with the exercise of discretion in civil courts in personal injury cases and requires the court to consider the prejudice that each party would suffer as a result of the decision reached and to have regard to all the circumstances of the case — in particular, 19.1. the length of, and reasons for, the delay, 4 of 26 19.2. the extent to which the cogency of the evidence is likely to be affected by the delay, 19.3. the extent to which the party sued has cooperated with any requests for information, 19.4. the promptness with which the plaintiff acted once he or she knew of the facts giving rise to the cause of action; and the steps taken by the claimant to obtain appropriate advice once he or she knew of the possibility of taking action. Direct age discrimination[20]In relation to direct discrimination, for present purposes the following are the key principles.[21]Under s.13 EqA, there are two issues:(a) less favourable treatment and(b) the reason for that less favourable treatment. These questions need not be answered strictly sequentially (Shamoon v Chief Constable of the Royal Ulster Constabulary 2003 ICR 337).[22]Given the treatment must be “less favourable” a comparison is required, and a comparator must “be in the same position in all material respects as the victim save only that he, or she, is not a member of the protected class” (Shamoon above).[23]The burden of proof is set out in s.136 EqA (see above). The leading cases on the burden of proof pre-date the Equality Act (Igen Ltd v Wong 2005 EWCA Civ 142 and Madarassy v Nomura international Plc 2007 EWCA Civ 33, [2007] IRLR 246) but in Hewage v Grampian Health Board 2012 the Supreme Court approved the guidance given in Igen and Madarassy.[24]In Madarassy the Court of Appeal held that the burden of proof does not shift to the employer simply on the claimant establishing a difference in status (e.g. sex) and a difference in treatment. This merely gives rise to the possibility of discrimination. Something more is needed. Any inference about subconscious motivation has to be based on solid evidence (South Wales Police Authority v Johnson 2014 EWCA Civ 73). Indirect sex discrimination[25]S.19(1) EqA states that indirect discrimination occurs when a person(a) (A) applies to another(b) (B) a provision, criterion or practice (PCP) that is discriminatory in relation to a relevant protected characteristic of B’s. A PCP has this effect if the following four criteria are met: 25.1. A applies, or would apply, the PCP to persons with whom B does not share the relevant protected characteristic (s.19(2)(a)) 5 of 26 25.2. the PCP puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share the characteristic (s.19(2)(b)) 25.3. the PCP puts, or would put, B at that disadvantage (s.19(2)(c)), and 25.4. A cannot show that the PCP is a proportionate means of achieving a legitimate aim (s.19(2)(d)). Burden of proof – indirect discrimination[26]The relationship between the four elements of an indirect discrimination claim set out above and s.136 EqA was considered by the EAT in Dziedziak v Future Electronics Ltd EAT 0271/11. There, Mr Justice Langstaff essentially held that burden lies with the claimant to establish the first, second and third elements of the statutory definition of indirect discrimination. Only then does it fall to the employer to justify the PCP as a proportionate means of achieving a legitimate aim[27]Each element of the claim carries with it a substantial body of case law which we shall refer to, if necessary, below. Pool for comparison[28]The pool for comparison is another matter,[29]The pool for comparison must be drawn up in accordance with S.23(1) EqA, which states that ‘on a comparison of cases for the purposes of [s.19] there must be no material difference between the circumstances relating to each case’. In short, the overarching requirement is that proof of discrimination — both direct and indirect — requires a comparison of people in the same relevant circumstances.[30]Although there are some conflicting authorities, we prefer the position set out in Fulton and ors v Strathclyde Regional Council EAT 0949/83 which is that, at least in terms of PCPs applied internally, the pool is limited to current employees. This case is somewhat of a hybrid because some issues involve external recruitment. But the key point of this indirect sex discrimination claim is that the claimant argues that she was prevented from being slotted into two roles through internal moves, rather than external recruitment, and therefore we find that the pool for comparison is those who, at the relevant time, worked for the respondent at Grade 7. Particular disadvantage[31]The claimant must show that the PCP applied by the employer both puts (or would put) persons with whom the claimant shares the relevant protected characteristic at a particular disadvantage and puts (or would put) her at that disadvantage.[32]The concept overlaps substantially with ‘detriment’, and in Shamoon (above) the House of Lords held that the test was whether ‘a reasonable worker would or might 6 of 26 take the view that he had… been disadvantaged in the circumstances in which he had thereafter to work’. Individual disadvantage[33]In Ryan v South Western Ambulance Service NHS Trust 2021 ICR 555, EAT, the EAT made clear that group disadvantage and individual disadvantage must be considered in the proper order. The correct approach is first to identify the relevant group disadvantage and then to consider whether the claimant suffered that disadvantage. In the present case, this order of proceedings had not been respected, which led the employment tribunal into error. The individual disadvantage was identified during case management but not the group disadvantage. Then, when the group disadvantage was formulated later in proceedings, it was defined differently from the individual disadvantage.[34]Under s.19(2) EqA the claimant must prove that the PCP puts (or would put) him or her at ‘that disadvantage’, i.e. the same disadvantage as those others who share the relevant protected characteristic. Harassment related to age[35]The general definition of harassment set out in s.26(1) EqA states that a person(a) (A) harasses another(b) (B) if, 35.1. A engages in unwanted conduct related to a relevant protected characteristic — s.26(1)(a), and 35.2. 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 — s.26(1)(b).[36]There are three essential elements of a harassment claim under s.26(1): 36.1. unwanted conduct, 36.2. that has the proscribed purpose or effect, and 36.3. which relates to a relevant protected characteristic.[37]Mr Justice Underhill, then President of the EAT, expressed the view that it would be a ‘healthy discipline’ for a tribunal in any claim alleging unlawful harassment specifically to address in its reasons each of these three elements — Richmond Pharmacology v Dhaliwal 2009 ICR 724, EAT. Unwanted conduct[38]The Equality and Human Rights Commission’s Code of Practice on Employment (‘the EHRC Employment Code’) notes that unwanted conduct can include ‘a wide range of behaviour, including spoken or written words or abuse, imagery, graffiti, 7 of 26 physical gestures, facial expressions, mimicry, jokes, pranks, acts affecting a person’s surroundings or other physical behaviour’ — para 7.7.[39]Where there is disagreement between the parties, it is important that an employment tribunal makes clear findings as to what conduct actually took place, such as what words were used. In Cam v Matrix Service Development and Training Ltd EAT 0302/12 an employment tribunal had erred by failing to find whether or not the alleged harasser had used the expression ‘white trash’, given that he denied doing so.[40]The word ‘unwanted’ is essentially the same as ‘unwelcome’ or ‘uninvited’ (EHRC Employment Code para 7.8). The EAT in Thomas Sanderson Blinds Ltd v English EAT 0316/10 pointed out that unwanted conduct means conduct that is unwanted by the employee. The necessary implication is that whether conduct is ‘unwanted’ should largely be assessed subjectively, i.e. from the employee’s point of view.[41]The employee does not have to be present when the words/actions occur.[42]Conduct that is clearly not objected to will not be ‘unwanted’ even if most people would find the conduct in question unacceptable to the extent that it could be regarded as inherently unwanted. However, the fact that the conduct has been going on for a long time with no apparent objection does not necessarily mean that the claimant accepts or condones it. Violating dignity[43]In Richmond Pharmacology v Dhaliwal 2009 ICR 724, EAT, Mr Justice Underhill, then President of the EAT, said: ‘Not every racially slanted adverse comment or conduct may constitute the violation of a person’s dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended’. Mr Justice Langstaff, then President of the EAT, affirmed this view in Betsi Cadwaladr University Health Board v Hughes and ors EAT 0179/13. Intimidating, hostile, degrading, humiliating or offensive environment[44]Some of the factors that a tribunal might take into account in deciding whether an adverse environment had been created were noted in Weeks v Newham College of Further Education EAT 0630/11, these include the fact that the relevant conduct was not directed at the claimant, that the claimant made no immediate complaint and that the words objected to were used only occasionally. The relevant word is ‘environment’, which means a state of affairs. Such an environment may be created by a one-off incident, but its effects must be of longer duration to come within s.26(1)(b)(ii) EqA. Purpose[45]A claim brought on the basis that the unwanted conduct had the purpose of violating the employee’s dignity or creating an intimidating, hostile, degrading, 8 of 26 humiliating or offensive environment obviously involves an examination of the perpetrator’s intentions. As the perpetrator is unlikely to admit to having had the necessary purpose, the tribunal hearing the claim is likely to need to draw inferences from the surrounding circumstances. Effect[46]In deciding whether the conduct has the effect referred to in s.26(1)(b) (i.e. of violating a person’s (B) dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B), each of the following must be taken into account, 46.1. the perception of B, 46.2. the other circumstances of the case, and 46.3. whether it is reasonable for the conduct to have that effect — s.26(4).[47]The test therefore has both subjective and objective elements to it. The subjective part involves the tribunal looking at the effect that the conduct of the alleged harasser (A) has on the complainant (B). The objective part requires the tribunal to ask itself whether it was reasonable for B to claim that A’s conduct had that effect.[48]In Pemberton v Inwood 2018 ICR 1291, CA, Lord Justice Underhill, gave the following guidance: ‘In order to decide whether any conduct falling within sub-paragraph (1)(a) has either of the proscribed effects under sub-paragraph (1)(b), a tribunal must consider both (by reason of sub-section (4)(a)) whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) and (by reason of sub-section (4)(c)) whether it was reasonable for the conduct to be regarded as having that effect (the objective question). It must also, of course, take into account all the other circumstances – sub-section (4)(b). The relevance of the subjective question is that if the claimant does not perceive their dignity to have been violated, or an adverse environment created, then the conduct should not be found to have had that effect. The relevance of the objective question is that if it was not reasonable for the conduct to be regarded as violating the claimant's dignity or creating an adverse environment for him or her, then it should not be found to have done so.’ Related to a relevant protected characteristic[49]In order to constitute unlawful harassment under s.26(1) EqA, the unwanted and offensive conduct must be ‘related to a relevant protected characteristic’. However offensive the conduct, it will not constitute harassment unless it is so related, and a tribunal that fails to engage with this point will err — London Borough of Haringey v O’Brien EAT 0004/16. 9 of 26[50]Whether or not the conduct is related to the characteristic in question is a matter for the appreciation of the tribunal, making a finding of fact drawing on all the evidence before it – Tees Esk and Wear Valleys NHS Foundation Trust v Aslam and anor EAT 0039/19.[51]The words ‘related to’ in s.26(1)(a) have a broad meaning and holding that conduct that cannot be said to be ‘because of’ a particular protected characteristic may nonetheless be ‘related to’ it — Hartley v Foreign and Commonwealth Office Services 2016 ICR D17, EAT. Part-time worker detriment[52]The core right conferred by the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (the PTW Regulations) is the right for part-time workers not to be treated by their employer less favourably than the employer treats comparable full-time workers, either: 52.1. as regards the terms of their employment contract — Regulation 5(1)(a), or 52.2. by being subjected to any other detriment by any act, or deliberate failure to act, of the employer — Regulation 5(1)(b), where the reason for the treatment is that the worker is a part-time worker, and the treatment is not justified on objective grounds — Regulation 5(2). 52.3. In Hendrickson Europe Ltd v Pipe EAT 0272/02 the EAT held that an employment tribunal considering whether a breach of Regulation 5 has occurred must answer the following four key questions: 52.3.1. what is the treatment complained of? 52.3.2. is that treatment less favourable? 52.3.3. is that less favourable treatment on the ground that the worker is part time? 52.3.4. if so, is the less favourable treatment justified?[53]The right under Regulation 5 is the right to be treated no less favourably than a ‘comparable full-time worker’.[54]Even if a part-time worker can demonstrate that he or she has been treated less favourably than a comparable full-time worker under Regulation 5(1) of the PTW Regulations, his or her claim will not succeed unless the treatment was ‘on the ground that [he or she] is a part-time worker’ — Regulation 5(2)(a). A finding as to the reason for the treatment should only be made once the tribunal has decided that the worker has been treated less favourably under Regulation 5(1) — Calder v Secretary of State for Work and Pensions EAT 0512/08. It is for the employer to 10 of 26 identify the ground for the less favourable treatment or detriment — Regulation 8(6).[55]We refer to other relevant case law below.
Findings of fact
[56]We make the following findings of fact (references are to pages in the bundle).[57]The claimant is employed by the first respondent, the Department for Work and Pensions. She has been continuously employed since 7 October 1991. At the relevant time she had around 32 years continuous service. She was promoted to Grade 7 in 2013.[58]The claimant had originally worked full time as a Grade 7 in the Employment & Partnership role (E&P). The E&P role covered a whole district and involved overseeing approximately 85 staff who interact with the job centres’ partners, providers, local authorities and local employers. We accept Ms Walker’s evidence that the role was a significant relationship-management role and involved a lot of horizon scanning in terms of understanding the businesses that were coming into the area and establishing what the first respondent could do to match job centre customers to businesses across the region.[59]In February 2022, the claimant requested partial retirement necessitated by caring responsibilities for her disabled mother-in-law and her husband, who suffered a stroke in October 2022 that left him partially blind.[60]That request was granted and in August 2022 the claimant moved to part-time working - 3 days per week. She also took ‘partial retirement’ which means she is in receipt of some pension benefits, one result of which is that without giving that up, she is not able to increase her hours.[61]Between August 2022 and February 2023, the claimant continued in her E&P role working the reduced hours. Her evidence was that her deputy, Sharon Turner (ST), Senior Executive Officer, the grade below the claimant’s, did part of the claimant’s role when the claimant was not present. She indicated this was limited to dealing with emails and essentially administrative tasks.[62]The respondent operates a job share policy [193 et seq.] and the material part for our purposes is as follows, “The vast majority of posts should be considered as suitable for job share. Where a vacancy holder considers that the role would not suit a job sharing arrangement, they must explain this in a business case which they should submit to the relevant senior manager for approval as part of the vacancy filling process. 11 of 26 Applications It is recommended that employees who want to apply for job sharing posts, but currently do not have a job share partner, find a partner before applying so they can apply together. Your Line Manager, HRBP or other local Network Groups may be able to help you search for other people looking for a job share partner. When applying as job sharing partners the employees must agree in advance how they will job share e.g. how to split working hours or the communication/handover process, so that this can be explained to the selection panel at the interview stage. Job sharing applicants should complete separate application forms, CVs, Personal Statement etc as stated in the vacancy advert. However, applicants should make it clear that they are applying as job sharers and give the name of their partner. This should be done in writing (normally by email) by contacting the named person in the vacancy advert who will be responsible for passing this information to selection panel members. Where it is not possible to find a job share partner before applying, candidates should contact the vacancy holder to check if there is any flexibility around applying for a post without a job share partner…”[63]At the hearing the claimant said that during this period she was job sharing with ST, but we find this was not the case. We accept the respondent’s evidence that a job-sharing arrangement occurs where two people do one job. As the claimant was a Grade 7, ST could not undertake any part of the claimant’s role as a job sharer. She could and did ‘act up’ into the role for certain tasks, but we stress, even on the claimant’s best case, she never suggested that at the times she was not in work, ST undertook the entire duties of the claimant’s Grade 7 role.[64]In February 2023 the claimant moved from her E&P role into a new role referred for or ease as the IWP role. The focus of that role was to support employed people looking to progress into more advanced roles within an organisation, rather than supporting people who are trying to find entry-level employment. The IWP role was a new one that the first respondent was testing. A key difference between the E&P and IWP roles was that the E&P role oversaw approximately 85 people, whereas there were no similar teams in the IWP role. The claimant was line managed by Mr Brendon Downie in this role.[65]Following the claimant’s move, ST acted up as a Grade 7 undertaking the E&P role on a full-time basis.[66]In September 2023 Adele Walker, the second respondent, started work as a Grade 6 Service Leader. She undertook a two-week handover with Jane Cooper, who had line managed the claimant in her E&P role.[67]In early October 2023, the claimant sent a message on Microsoft Teams to the second respondent. [103]. In that message, the claimant said that she had previously asked Jane Cooper if she could return to the E&P role that she had done until February 2023. The claimant said that Ms Cooper had asked the 12 of 26 claimant to undertake the IWP role but that she had always had some reservations about transferring into the role, that she was unhappy in the role and wanted to return to the E&P role that she had been doing previously. In fact, the claimant’s message says expressly: “Jane said it would be doing her a favour if I took it and if I didn't like it we could have a conversation regarding coming back to my role. I would like that offer to be honoured and consideration to be given to reposting me into my role as E&P lead…”[68]Although we did not hear from Ms Cooper, there is an email from her dated 22 March 2024 to the claimant’s then line manager Mr Downie, no doubt consequent upon him making enquiries about what was said to the claimant about the IWP role. In that email Ms Cooper says, “When Jean Sharpe took up post as IWP lead I made it clear to her that should the post end, she would be found a suitable G7 post to return to I did not tell her she could come back to her role on E and P for LNR. This was a key role that I needed to fill which I did.”[69]We have no reason to doubt this evidence.[70]The second respondent discussed the claimant’s request with Deborah Woodcock, her manager. For what are described as operational reasons, it was identified that the E&P role was full time. Those reasons are set out at paragraph 18 of the second respondent’s witness statement, and we do not need to repeat them here. We do note that although the claimant described one or two of the matters as transitory, she did not effectively challenge the view that the role was full time.[71]On 3 October 2023 the second respondent emailed the claimant refusing her request to return to the E&P role. In that response she said as follows: “The role would not be suitable to job share…”[72]This caused some difficulty and may indeed be the genesis of this entire case. There was much discussion during the evidence about what the second respondent meant by this comment, and it was also apparent to the Tribunal that the claimant consistently, and in our view incorrectly conflated a requirement that the E&P role be full time with a requirement that it be done by one person on a fulltime basis.[73]Having heard all of the evidence we find that in fact what the second respondent was referring to in the comment above, was the fact that as the E&P team had no Grade 7, the claimant could not simply return on her 3 days a week to undertake the role as, unlike when she had undertaken the role previously, operational changes meant that a full time Grade 7 presence was necessary. As Ms Turner remained an SEO grade, she could not job share the Grade 7 E&P role.[74]We wonder whether, had the second respondent been clearer, much of what followed could have been avoided. That said, it was open to the claimant to 13 of 26 challenge the second respondent if she believed that she was being excluded from the role because of her part time/caring status. She could, for example have raised a grievance where her concerns may well have been addressed, but she never did.[75]We also wonder why the claimant’s then line manager, Mr Downie, was not more proactive in supporting the claimant given he knew she was not happy in the IWP role. He could have requested a so-called ‘managed move’ for the claimant but failed to do so.[76]On 4 October 2023 the second respondent and the claimant had a call during which the decision not to allow her to return to her old role and the rationale behind it were discussed.[77]On 4 October 2023 the claimant emailed the second respondent challenging her decision [99].[78]At no point did the claimant say that she could work full time or that she had found someone to job share the E&P role with her.[79]On 4 December 2023 the claimant contacted the second respondent about a Grade 7 Operational Role (‘the Operational role’) that had been vacated when the post-holder moved to a different region.[80]We accept the unchallenged evidence of the second respondent that the Operational role covered 12 sites (Boston, Louth, Newark, Skegness, Sleaford, Lincoln, Spalding, Stamford, Gainsborough, Grantham, Mansfield and Retford) and involved overseeing nearly 300 employees and approximately 18,000 job centre customers and that the individual who took that role would generally always be at one of those job centres and would need to be a recognisable managerial face for everyone involved at each of those sites. It involved a lot of travel between job centres as the post-holder would need to attend each of those 12 sites frequently.[81]We also accept the second respondent’s evidence, also unchallenged, that had the claimant suggested doing this as part of a job share, and there was someone that she could share the job with, then this would have been considered. However, the respondents were clear that there were no other Grade 7s in the geographic area who the claimant would have been able to share the job with. It would have required there to be another Grade 7 on part-time hours who would have wanted to share the job with the claimant, and there were no Grade 7s at that time who fitted that description.[82]Therefore, the claimant was not able to undertake the Operational role because of her inability to work full-time and that a job share arrangement was not feasible.[83]In December 2023 the E&P role, which was being temporarily filled by ST, and the Operational role were advertised as part of the ‘G7 Recruitment Campaign’. The claimant did not apply for either role.[84]On 13 December 2023 Shola Olawole was informed of his successful application and offered a choice of roles. 14 of 26[85]In late December 2023 Mr Olawole accepted the E&P role. The Operational role was offered to the next best candidate, but the offer was rejected. That led to the role being offered to the person who was in effect first reserve, Sharon Turner who accepted the role.[86]The claimant’s date of birth is 4 June 1963.[87]Mr Olawole’s date of birth is 15 June 1965.[88]Ms Turner’s date of birth is 23 March 1966.[89]In evidence the claimant conceded that the ages of her and her comparators was very similar.[90]The claimant commenced early conciliation on 14 February 2024. She received her early conciliation certificate on 25 March 2024.[91]The claimant presented her claim form on 17 April 2024.[92]Any claim arising prior to 15 November 2024 is, prima facie, out of time.
Discussion and conclusions
[93]We turn then to our conclusions on the matters we have been asked to determine. Time limits – 3 October 2023 issue[94]There are three matters about which the claimant complains. The first of those is that on 3 October 2023, the respondents refused to redeploy the claimant back into the E&P role.[95]That claim is out of time.[96]We have considered whether it forms part of an act continuing over a period.[97]The remaining complaints concern the failure to appoint the claimant to the Operational role in December 2023 and the appointment of Mr Olawole to the E&P role on 9 January 2024.[98]These three issues are distinct. They were decisions taken at different times, in different circumstances involving the decisions of people not accused of discrimination by the claimant, for example Ms Woodcock. We accept that the indirect discrimination claim does not require a conscious decision to discriminate but nevertheless, the way the claimant has put that claim strongly suggests she believes there was a discriminatory motivation for the PCP.[99]The clamant gave no evidence as to why she delayed bringing this claim nor why it would be just and equitable to extend time. She did not refer to this at all in her submissions. 15 of 26[100]We have considered this and conclude that given she has complaints in time and given the absence of any reason to extend time, the balance lies in favour of the respondents, the 3 October 2023 complaint is out of time, and we do not have jurisdiction to hear it. Direct age discrimination[101]Given the above finding, there are two allegations of direct age discrimination. These are that, 101.1. in December 2023, the respondents failed to consider the claimant for a Grade 7 Senior Leader operation role, and 101.2. on 9 January 2024, the respondents appointed Shola Olawole (a fulltime younger worker) to the E&P Role.[102]We can deal with the second of these complaints quite shortly. The claimant did not apply for the advertised E&P role and so inevitably was not appointed. In that context it is difficult to understand how the claimant says the appointment of another person to that role, whatever their age, was less favourable treatment of her. It was not.[103]We would add that in her evidence the claimant conceded that the ages of her and Mr Olawole are almost identical. Mr Olawole is just 2 years younger than the claimant, so, yes, he is a “younger worker” but both he and the claimant were, at the relevant time respectively 58 and 60 years old.[104]Even if a direct discrimination claim could get off the ground, there is no direct evidence or any evidence from which we could infer age discrimination.[105]In our judgment this claim was misconceived, fails and is dismissed.[106]As to the Operational role, the respondents’ evidence is set out above from paragraph 80. Much of that was unchallenged or not effectively challenged and we have accepted it.[107]We deal with this role in more detail in the PTW section below, but in short, and for the reasons set out below, we consider that the claimant was in fact considered for the Operational role, she just was not appointed to it. For that reason alone, the claim fails and is dismissed.[108]If we read the allegation as a failure to appoint, we are clear that on the evidence, the reason the claimant was not appointed was entirely unrelated to age. The reason was that the position was full time, she was unable to work full time and there was no Grade 7 resource with whom she could job share.[109]We would also point out that the successful candidate was just less than 3 years younger than the claimant and we would not infer age discrimination from that fact alone. 16 of 26[110]For those reasons this claim also fails and is dismissed. Indirect sex discrimination[111]Looking at the list of issues, the parties have set out the PCP, the particular group disadvantage and that the claimant “was placed at a particular disadvantage because she had caring responsibilities for her husband and mother in law”.[112]What the list of issues does not say is when the claimant says she was placed at the particular disadvantage.[113]Having said that, in our judgment this does not require further consideration because it is plain that the respondent did not have the PCP of a “requirement to work full-time to be considered / appointed to the E&P Role and other Grade 7 positions”.[114]We consider that the drafting of this PCP evidences the claimant’s confusion between a role being full time and the requirement for it to be undertaken by one person on a full-time basis.[115]There is no evidence that there was ever a requirement to work full time. We accept that in the second respondent’s email of 3 October 2023 she wrote that the role would not be suitable to job share, but we have accepted the explanation that, in context, this comment related to the circumstances that pertained at the time – lack of Grade 7 resource for job sharing - making job sharing impossible.[116]But even if the second respondent was simply stating that the E&P role was not suitable for job sharing per se, that is not evidence that the first respondent had the PCP contended for. Indeed, the evidence runs exactly counter to that. There is a specific job share policy which says, in terms, “It is normally possible to share any job. It is usually done by dividing the total number of hours that need to be worked in a number of ways, and with both partners doing the same type of work… The vast majority of posts should be considered as suitable for job share. Where a vacancy holder considers that the role would not suit a job sharing arrangement, they must explain this in a business case which they should submit to the relevant senior manager for approval as part of the vacancy filling process…” [194/195][117]For that reason, the claim for indirect sex discrimination fails and is dismissed. Harassment related to age[118]We note that there are three questions to address in relation to this claim as follows, 17 of 26 118.1. what was the unwanted conduct, 118.2. did it have the proscribed purpose or effect, and 118.3. did it relate to age? The unwanted conduct[119]The unwanted conduct was, 119.1. that on 3 October 2023, the respondents refused to redeploy the claimant back into the E&P Role 119.2. that on 9 January 2024, the respondents appointed Mr Olawole to the E&P Role, and 119.3. that in December 2023, the respondents failed to consider the claimant for a Grade 7 Senior Leader operation role.[120]These are the same issues as we dealt with in relation to the claim for direct age discrimination above and we repeat here the findings and conclusions we made about these allegations there. The proscribed effect[121]As to the proscribed effect, the only evidence in the claimant’s witness statement about this relates only to the announcement on the appointment of Mr Olawole. The claimant says at paragraphs 5.1, 5.2 and 5.3 of her statement, “5.1 On 9 January 2024, I discovered via a WhatsApp message from Sharon Turner that she and Mr. Shola Olawole had been formally appointed to these roles. The Second Respondent had circulated an official announcement email to the wider district, intentionally omitting me from the distribution list. 5.2 Discovering the erasure of my role through junior colleagues, without prior consultation or a professional courtesy discussion, caused me immense humiliation, distress, and professional isolation. 5.3 As a direct consequence of this treatment, I suffered a severe mental health crisis and was signed off work with clinical anxiety and depression from 10 January 2024 to 7 February 2024…”[122]With respect to the claimant, this is not evidence that she was harassed by the appointment of Mr Olawole. It is at best evidence that she was upset by the way she discovered the appointment and that is not one of the complaints in the agreed list of issues.[123]Beyond that there is no evidence that the matters which the claimant says amounted to harassment related to age caused the proscribed effect. 18 of 26 Related to age[124]Nothing about the refusal to redeploy the claimant back into the E&P Role, the consequent appointment of Mr Olawole to that role or the failure to consider the claimant for the Operational role was related to age.[125]We reiterate that the claimant did not apply for the role to which Mr Olawole was appointed, so it is difficult to see how that could amount to unwanted conduct in the context of a harassment claim. Further, given their similar ages there is no basis for finding that this appointment had anything to do with age.[126]The E&P and Operational roles were not available to the claimant because she only worked part time, and no job-sharing arrangements were possible for the reasons we have discussed above. Her reason for working part time was not age related. She chose to work part time in order to take care of her mother-in-law and her husband.[127]In our judgment this claim was also misconceived. The claimant may not have been happy with not being redeployed into the E&P role and not being given the Operational role but given the factual matrix in which these decisions were made, her reasons for alleging these decisions amounted to age related harassment entirely escape us.[128]For those reasons this claim also fails and is dismissed. PTW detriment[129]Finally, we turn to the claim under regulation 5 of the PTW regulations. As we have set out in the section on the law, there are four questions to consider, 129.1.1. what is the treatment complained of? 129.1.2. is that treatment less favourable? 129.1.3. is that less favourable treatment on the ground that the worker is part time? 129.1.4. if so, is the less favourable treatment justified? The treatment complained of[130]The same complaints are raised here as raised in the direct discrimination and harassment claims above and we do not need to repeat our findings about those matters here. Was that treatment less favourable[131]Regulation 5(1)(b), says that a worker can be treated less favourably by being subjected to any other detriment by any act, or deliberate failure to act, of the 19 of 26 employer. The reference to ‘any other’ is to include detriments not related to the terms of employment. In this context detriment means less favourable treatment.[132]So, to put it in terms which make sense of the list of issues, the questions here are, 132.1. was the refusal to redeploy the claimant back into the E&P role on 3 October 2023 less favourable treatment, (we do note that this claim is out of time for the reasons set out above, but we have made findings about it under this head of claim as this was, in our judgment, the claim most likely to succeed), 132.2. was the appointment of Mr Olawole to the E&P Role on 9 January 2024 less favourable treatment, 132.3. was the failure to consider the claimant for the Operational role in December 2023 less favourable treatment.[133]Given that this claim is about less favourable treatment, a comparator is required. Comparators must be comparable full-time workers, that is that at the time when the treatment that is alleged to be less favourable to the part-time worker takes place, 133.1. both workers are employed by the same employer under the same type of contract, 133.2. both workers are engaged in the same or broadly similar work, having regard, where relevant, to whether they have a similar level of qualification, skills and experience, and 133.3. the full-time worker works or is based at the same establishment as the part-time worker.[134]The claimant relies on Mr Olawole and Ms Turner as comparators. We pause to note that there is no ability to rely on hypothetical comparators under the PTW Regulations (see Carl v University of Sheffield 2009 ICR 1286, EAT).[135]In Clayson and ors v Ministry of Justice and anor 2024 EAT 99 the EAT stressed that the comparison between a full-time and a part-time worker must be made at the time when the treatment that is alleged to be less favourable takes place.[136]Turning then to the core question here - was the treatment less favourable - we find as follows.[137]The refusal to redeploy the claimant back into the E&P Role on 3 October 2023 was not less favourable treatment compared to either of the comparators, because Ms Turner was never appointed to the E&P role and Mr Olawole was appointed several months later. Thus, on 3 October 2023 there was no less favourable 20 of 26 treatment of the claimant compared to either of her comparators within the meaning of the PTW Regulations.[138]The appointment of Mr Olawole to the E&P Role on 9 January 2024 was not less favourable treatment because he was appointed through open competition for the role and the claimant had not applied for the role through that process, was not part of that process and could not be appointed through it.[139]The failure to consider the claimant for the Operational role in December 2023 could not be less favourable treatment for two reasons. First, in December 2023 Ms Turner, who eventually took on the role, was not part of any consideration for this role in December 2023. Her appointment only occurred following the application process referred to above and following the successful candidate refusing the role. Second, and more significantly, the claimant was considered for the role.[140]In the claimant’s witness statement, she says, “4.14 The Respondents reference an enquiry I made in December 2023 regarding a Lincolnshire Operational Role [Para 16]. This was an act of urgency to escape a role that was actively causing isolation from peers and inclusion in the district. The exact words of the Second Respondent via a Team's call were: "You don't have the necessary operational experience for me to consider you for that role…”[141]In her witness statement, the second respondent says about this, “I therefore told the Claimant that she could not be considered for this full-time job whilst not being able to work full-time hours. Once again, this had nothing to do with the Claimant’s age and/or sex…”[142]We appreciate that both statements use the wording “consider” and “considered”, but it is clear that the wording adopted by both is imprecise and potentially misleading. It is self-evident that in order for the second respondent to conclude that the claimant could not be “considered for” the Operational role, she had in fact considered whether the claimant could do/be appointed to that role in the circumstances at that time, and thus the claimant was clearly “considered for” the role. She just was not offered it or appointed to it or slotted into it.[143]For those reasons this claim also fails and is dismissed, and we do not need to go on to consider the remaining PTW questions.[144]In summary, all of the claimant’s claims fail and are dismissed.