Ms C Blackley v Create and Prosper Financial Services Ltd: 8000550/2023

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 8000550/2023

Venue Edinburgh

Hearing 20,21,22,23 May 2024

Between

Ms C BlackleyClaimant

Create and Prosper Financial Services LtdRespondent

Before

Employment Judge S Cowen

Date 24 July 2024

JUDGMENT

[1]The Claimant’s claim for unpaid wages under s.13 Employment Rights Act 1996 was dismissed upon withdrawal.

[2]The Claimant’s claims for Race discrimination, harassment and victimisation are dismissed.

REASONS

[3]The parties agreed a bundle of productions for use at the hearing. The Claimant added two additional pages during the hearing and requested that the Tribunal should listen to a covert recording of a phone call on 13 October 2023 between the Claimant and Mr Hodgson. The Respondent withdrew their objection and the Tribunal listened to the four minute recording during the Claimant’s evidence in chief.

[4]The time available to hear the case was reduced from five days to four days, due to a lack of a full panel for a final day. We were able to complete all the evidence and submissions as well as deliberate within the four days. Our judgment was reserved due to the time constraint upon us.

[5]Evidence was heard from the Claimant, Mr Hodgson Managing Director, Mr Dempsey Operations Manager and Ms McNicoll Customer Service Team Leader.

[6]The claim for failure to pay outstanding accrued holiday pay at the time of termination was dismissed upon withdrawal.

[7]The List of Issues was set out in the case management order dated 10 January 2024 as follows:- Direct Discrimination on grounds of race (s.13 EqA)a. Claimant was not asked to join an office WhatsApp group upon starting employment with the respondent, or at any later date.

b. Claimant was denied the opportunity to transfer to a role in the Technical Team in or around August 2023, when a colleague retired leaving a vacancy.

c. Throughout her employment the Claimant received less support from her manager, Ms McNicholl that was given to Ms Smith.

d. Claimant was told by Mr Hodgson around August 2022 that she would need to purchase study materials herself and then claim back the costs from the Respondent.

e. Claimant was not invited to meetings for the introduction or promotion of new client services or platforms.

f. Claimant not given adequate support to allow her to cover her department when colleagues went on holiday in May 2023.

g. Claimant was dismissed two working days after failing in a professional exam at her first attempt.

h. Claimant told by Mr Hodgson, Ms McNicholl and an individual named John early in her service that there was no intention or desire on the Respondent’s part for the Claimant to progress by gaining qualifications and moving from the Client Care team to an advisory role in the Technical Team.

i. In August 2022 and December 2022, on each occasion at an office party, Mr Hodgson told the Claimant that she had been hired in order to ‘tick a diversity box’. Harassment with reference to race (s.26 EQA) a. The manner of the dismissal at the meeting on 29 August 2023. The Claimant was given no notice of the Respondent’s intention to end her employment. b. Claimant’s LinkedIn page was repeatedly viewed by various people from the Respondent, including Mr Howarth and Ms McNicholl following her dismissal. Victimisation in relation to race (s.27 EqA) Claimant relies on statements she made in two review meetings with Ms McNicholl in January/February 2023 and again in July 2023. She asserts the following acts of victimisation as a result; a. The manner of the dismissal (as above), b. The P45 was erroneously completed with the wrote final date of service as September 2023 rather than 29 August 2023. c. Claimant was not reimbursed for an exam fee she paid on 26 August 2023 d. The Respondent’s repeated viewing of Claimant’s LinkedIn page e. On 13 October 2023, Mr Hodgson told Claimant that he would not give her a favourable reference in relation to a job she had applied for following her dismissal. Findings of Fact 6. Having considered all the evidence, we find the following facts on a balance of probabilities. 7. The parties will note that not all the matters that they told us about are recorded in our findings of fact. That is because we have limited them to points that are relevant to the legal issues.

Findings of Fact

[8]The Claimant identifies as a Black American and sets out her claim as being on grounds of both colour and nationality. She was employed as a Client Services Administrator (‘CSA’) by the Respondent from the 4 July 2022. At interview for the CSA role, she was told of two other vacancies at the time; One was a ‘Paraplanner’, which required qualifications that the Claimant did not hold. The other was a ‘Graduate Paraplanner’ role which would allow the Claimant to gain the relevant qualifications and experience as she worked, but attracted a lower starting salary to that of a CSA. The Claimant therefore declined to be considered for the Graduate Paraplanner role. During this discussion Mr Hodgson, Managing Director, told the Claimant that if she were to pass the relevant exams she might be able to move to an Independent Financial Advisor (IFA) job in the future, if a suitable vacancy arose. However, this was not, as the Claimant thought, a promise of a future position or promotion. This was Mr Hodgson’s way of trying to encourage those in his company to progress their careers.

[9]The Claimant indicated at her interview that she would like to engage in the Financial Servies Regulator exams, as she had a wish to become an IFA. When she discussed this at her interview, she was led to believe that the company would pay for the exam and the learning materials in order to progress her career. She believed this to include any resit fees. However, the email which was sent to her by Mr Dempsey, Operations Manager, as well as her contract of employment, were silent on the issue of resit fees, but they did commit to paying for entry to exams and the relevant materials.

[10]The Claimant did not require any professional qualifications in order to carry out the CSA role. In order to move to a Paraplanner role the Claimant would be required to pass at least the RO1 exam and possibly another in a set of six exams required to be a Paraplanner.

[11]In contrast, a few weeks after the Claimant was employed, Emma Smith was employed as a Graduate Paraplanner. She was required to sit the relevant exams as part of her role. Mr Hodgson and Mr Dempsey decided that Ms Smith should sit with the Customer Service team as part of her initial training, before moving to the ‘tech’ team to join the other Paraplanners, including Mrs Wilson, who was due to retire late in 2022. Mr Hodgson wanted Emma Smith to learn how the company worked and the role of a CSA, in order to understand the different roles in the company before gaining experience working with Mrs Wilson, before her departure.

[12]The Claimant’s CSA role involved general office administration work such as sorting out the post, greeting visitors, registering new clients and preparation of paperwork for client meetings by the advisers. It required knowledge of various providers’ platforms in order to upload and download relevant information.

[13]Shortly after the Claimant started work she became aware of a WhatsApp group which included everyone in the company. This had been started during the Covid 19 pandemic, in order that staff could remain in touch with each other whilst working from home. By July 2022, when the Claimant started work, it was used for social comments and arrangements e.g. birthday greetings. It was not used for official work communication, but remained a way in which colleagues interacted. The Tribunal found that Mr Dempsey was the administrator of the group. The Claimant did ask to be added to the group, but Mr Dempsey failed to add the Claimant. Ms Smith, who also asked to join the group, was added.

[14]Initially the Claimant was seen by Mr Dempsey and Ms McNicol, Customer Service Team Leader, to be enthusiastic about her role. Mr Dempsey provided an initial induction, giving information about how the office worked. Ms McNicol was the Claimant’s line manager and responsible for training her how to carry out the CSA role. Ms Mc Nicoll had experience in the role, but no formal training in line management, nor in how to train others to carry out a task. Ms McNicol showed the Claimant how to complete a task, provided her with access to the providers’ training materials and then monitored the Claimant’s work. Ms McNicol sat next to the Claimant and was therefore able to literally oversee her work on a daily basis. This became a source of irritation to the Claimant, who later saw Ms McNicol’s interventions as unhelpful and micromanaging.

[15]Throughout her employment, the Claimant had a WhatsApp message group with Ms McNicol. This included friendly messages and encouragement by Ms McNicol. This was in contrast to the later emails which Ms McNicol sent to Mr Dempsey suggesting that the Claimant’s performance was not adequate.

[16]The Claimant believed that she and Ms Smith were employed in the same role of CSA. The Claimant was not told that Ms Smith was in fact a Graduate Paraplanner and therefore not permanently positioned in the CSA team. The Claimant was told that both she and Ms Smith would be completing their exams at the same time and this reinforced the Claimant’s erroneous view that they were both CSA team members. The Claimant was in fact more interested in obtaining knowledge of Pensions and Pension Sharing Orders. It was her goal to work with IFAs with regard to pension sharing.

[17]In August 2022 there was an event to celebrate the end of the financial year. All the staff were invited and the Claimant attended. Both Mr Hodgson and the Claimant drank alcohol. The Claimant alleged that Mr Hodgson said to her that she was hired to “tick a diversity box”. The Claimant understood this to be a reference to her race. She did not complain to Mr Hodgson, nor did she mention it to Ms McNicol when they discussed the evening. The Claimant said initially that she believed that a colleague, Elliott Guthrie, was present when the comment was made, but subsequently said that it was when the Claimant spoke about this incident in the office. Mr Guthrie denied that he was present on either occasion. We found that there were no facts to support the Claimant’s versions of events.

[18]Initially the Claimant worked well, but by November 2022, Ms McNicol had some concerns about her work and the fact that the Claimant did not appear to be picking up how to carry out the work and was not gaining in competency.

[19]The Claimant had a number of review meetings with her line manager Ms McNicoll and also with Mr Dempsey. The first was in November 2022 where the Claimant was told that she had promise and a good grasp of the work. This was followed by a further meeting in April 2023 where the Claimant was told that improvement in her work was required. At no point did Ms McNicol or Mr Dempsey provide the Claimant with any written feedback. Nor did they give her any written record of the improvement they wanted to see in her aptitude or work.

[20]At a review meeting with Mr Dempsey in November 2022 the Claimant agreed to commence studying for the RO1 exam, although she wanted to complete the RO4 exam first. A deadline of April/May 2023 to undertake the exam was agreed between them.

[21]The Claimant spotted a few days later that Ms Smith was given the company bank card by Mr Dempsey in order to purchase her exam credit and learning materials. Soon after, the Claimant asked Mr Dempsey if she too could use the card to buy her exam materials and credit. Mr Dempsey allowed the Claimant to do this and the transaction occurred on 30 November 2022. It is not accepted that Mr Hodgson told the Claimant in August 2022 that she should buy her own training materials and then ask for the money to be returned to her.

[22]In December 2022 there was a Christmas party which involved a trip to a bar. The Claimant dressed with fairy lights in her hair. She attracted attention from other customers in the bar due to the way she was dressed. Whilst her colleagues were dancing, a number of women spoke to the Claimant and asked to have photographs taken with her. The Claimant said that Mr Hodgson approached her and asked if she was “also a lesbian as that would tick two boxes”. Mr Hodgson denied that this happened. The Claimant did not complain about it, or mention it to Ms McNicol in her WhatsApp messages the next day.

[23]During her employment the Claimant noticed that when providers came to the office to train staff in how to use new internet platforms, the Claimant was not invited to attend this training. This was because, as the most junior member of the CSA staff, the Claimant was left to answer the phones whilst others were absent.

[24]In February 2023 the Claimant decided that she was not prepared and ready to sit the exam due to having a second job. She did not tell Mr Dempsey this.

[25]Ms McNicholl discussed with Mr Dempsey over email on 27 April 2023 the fact that the Claimant did not seem to be completing tasks and needed to be closely managed, saying that she had discussed many issues with the Claimant. However, the Claimant was not told that this was a concern to her manager as when Ms McNicholl spoke to her, she indicated that all was going well.

[26]Although the Respondent had no formal performance management programme, the evidence shows that in May 2023 the Claimant was effectively placed on a type of performance management plan. However, she was not provided with either the objectives, nor the potential outcomes in a written format. Ms McNicol and Mr Dempsey spoke to the Claimant about her work on 11 May, and about what they wanted her to improve. The Claimant did not understand or register what was being asked of her, but instead took on board the fact that she was being pushed to complete the RO1 exams. During this meeting Mr Dempsey asked Ms McNicholl to step outside and he spoke to the Claimant privately to ask if she was aware of the issues about her performance which had been raised by Ms McNicholl. The Claimant denied that she was aware of these. Mr Dempsey told the Claimant they would have a follow up meeting in August.

[27]By this time, both Mr Dempsey and Ms McNicholl had identified that the Claimant was not performing well and was not continuing to show the same levels of interest and enthusiasm in her role as she had done initially. The Claimant believed she was seen as bothersome and that other tasks were taken away from her, to leave her with only basic tasks. Mr Dempsey and Ms McNicholl saw this as necessary due to the Claimant’s lack of acumen.

[28]In May 2023 both Ms McNicol and the Senior CSA Yvonne Easton took holiday at the same time. The Claimant was therefore the only remaining member of the CSA team in the office. She was not given any specific instruction on how to access the voicemail system, but the necessary passwords were available on the intranet system. Ms Smith was not aware of the passwords to access the voicemail either. The Claimant struggled to respond to all calls and return calls when clients left messages.

[29]In June 2023 on WhatsApp the Claimant indicated to Ms McNicholl that she felt that she was misled when she joined the company, as she thought there would be job progression and there was not. Ms McNicholl continued to encourage the Claimant to do the RO1 exam and to commit to her work in order to progress and to obtain pay rises. She did not indicate to the Claimant that her work was not satisfactory.

[30]Around Jume 2023 Mr Hodgson became aware that the Claimant was not performing as well as he had hoped, as she was not picking up the role and was making repeated errors. This was what he was told by Ms McNicholl. He left the supervision and encouragement of the Claimant to Mr Dempsey and Ms McNicholl.

[31]In July 2023 the Claimant and Ms Smith were left to run the department once again when Ms McNicholl went on holiday. Emails show that Ms McNicholl left instructions.

[32]Also in July 2023, the Respondent advertised for a further CSA role. By mid July the Respondent had applicants for the job. A new employee was recruited to start work on 4 September 2023.

[33]On 14 August 2023, Mr Dempsey asked for a follow up meeting with the Claimant, after their meeting in May. Ms McNicholl arranged the meeting and wrote to Mr Dempsey indicating her view that the Claimant no longer wanted to be in the job and that this was reflected in her performance. She listed a number of points which she said were failings on the part of the Claimant and described that the Claimant “doesn’t pull her weight with other team tasks”. She referred to the Claimant having told staff that she was looking for other work.

[34]This was discussed in a meeting with, Mr Dempsey, Ms McNicholl, Mr Hodgson and Ms Easton. Mr Hodgson heard that the Claimant was not performing well and that her work was having to be checked by others. They indicated to Mr Hodgson that they believed they had reached the end of the line. He considered that there was a unanimous decision that the Claimant had to be dismissed.

[35]On 15 August 2023, the Claimant met again with Mr Dempsey and Ms McNicholl to discuss her progress. The Claimant saw this meeting as the company badgering her to take her exams and show commitment and included an offer of support from Mr Dempsey if she needed it. The Respondent saw the meeting providing feedback to the Claimant and highlighting her failings. The Respondent felt that the Claimant was not open to this feedback and attempted to blame others. The parties agree that Mr Dempsey said to the Claimant that it felt as though the relationship was broken.

[36]Following on from this meeting, an email from Ms McNicholl records what she believed was discussed. She ends the email by saying that even though there are performance issues, she believes the Claimant is good with clients and fits in quite well with the team.

[37]On 16 August the Claimant booked her exam to be taken on 25 August. Ms McNicoll continued to send the Claimant supportive WhatsApp messages encouraging her to do well. The Claimant was told on the day of the exam that she had failed. She told Ms McNicholl of this immediately. Once again Ms McNicholl sent supportive responses to her messages.

[38]From the point of the meeting on 15 August, Mr Hodgson had taken HR advice on process and had made the decision to dismiss the Claimant. The Respondent had no formal policy for managing the performance of unregulated staff such as CSA.

[39]On 28 August Mr Dempsey put together an email to Mr Hodgson which contained his own views of the meeting on 15 August and those which had been contained in Ms McNicholl’s email.

[40]On 29 August 2023 the Claimant was called into a meeting around 4.30 pm with Mr Hodgson without any formal notice of the meeting or reason for it. She was not warned that it could result in her dismissal, nor told she could bring a colleague or TU representative.

[41]At the meeting Mr Hodgson offered the Claimant a cup of tea and told her that she was being dismissed. He offered her a box which was in the corner of the room, that she could use to collect her personal belongings. Mr Hodgson then accompanied the Claimant whilst she collected her belongings and left. No formal letter of dismissal, or written reasons for dismissal were provided to the Claimant.

[42]On 13 October Mr Hodgson emailed the Claimant and asked her to call him. She did so and recorded the part of the conversation. Mr Hodgson explained that he had 2 reference requests for the Claimant and that he wanted to be clear with her that due to the fact that she had not entered into a settlement agreement he would be providing a reference which was not merely factual as to dates and position held, but would also refer to the fact that the Claimant had been dismissed for performance issues. The Tribunal accepted that Mr Hodgon’s tone was not threatening, but that the intimation of his point was that the Respondent was prepared to go beyond the compulsory information on a reference and to say something negative about the Claimant. This was intimidating and upsetting to the Claimant.

[43]At the time of this conversation the Respondent was aware that the Claimant was potentially intending to bring a claim to the Tribunal, but had not yet issued her ET1. The Law Direct Discrimination

The Law

[44]Section 13 of the Equality Act 2010 provides that ‘A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others’.

[45]Under section 23(1), where a comparison is made, there must be no material difference between the circumstances relating to each case. It is possible to compare with an actual or hypothetical comparator.

[46]In order to find discrimination has occurred, there must be some evidential basis on which we can infer that the Claimant’s protected characteristic is the cause of the less favourable treatment. We can take into account a number of factors including an examination of circumstantial evidence.

[47]We must consider whether the fact that the Claimant had the relevant protected characteristic had a significant (or more than trivial) influence on the mind of the decision maker. The influence can be conscious or unconscious. It need not be the main or sole reason, but must have a significant (i.e. not trivial) influence and so amount to an effective reason for the cause of the treatment.

[48]The burden of proof in discrimination cases is set out in 136 Equality Act: s.136 “ (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”

[49]The approach to be adopted in applying section 136 is as laid down in Igen Ltd v Wong; Chamberlin Solicitors v Emokpae; Brunel University v Webster

[2005] EWCA Civ 142

[2005] ICR 931

(largely endorsing the principles set out in Barton v Investec Securities Ltd

[2003] ICR 1205

EAT) and approved by the Supreme Court in Efobi v Royal Mail Group Ltd

[2021] UKSC 33

. In short, to the extent that the ET is satisfied (on a balance of probabilities) that the claimant has established facts from which it could, in the absence of an adequate explanation, conclude that the respondent had committed an act of unlawful discrimination (having regard to all the evidence, and drawing such inferences as are legitimate from its primary findings of fact at that preliminary stage), it will be for the respondent to prove (again, on the balance of probabilities) that the treatment was in no sense whatsoever because of the relevant protected characteristic. In discharging this burden, a respondent would normally be expected to adduce cogent evidence that the relevant protected characteristic was not the reason for the treatment in question.

[50]In considering whether the claimant has established a prima facie case of discrimination, an ET must have regard to all the evidence, not just that adduced by the claimant (Efobi).

[51]In the case of Reynolds v CLFIS (UK) Limited

[2015] EWCA Civ 439

the Court of Appeal considered whether, for the purposes of establishing whether direct discrimination has taken place, a tribunal should consider the mental processes of those employees who have significantly influenced the alleged discriminatory outcome, or only those of the actual decision-maker. Harassment

[52]Section 26 of the Equality Act provides: “(1) A person(a) (A) harasses another

(b) (B) if –

a. A engages in unwanted conduct related to a relevant protected characteristic, and

b. The conduct has the purpose or effect of – i. Violating B’s dignity, or ii. Creating an intimidating, hostile, degrading, humiliating or offensive environment for B. (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. “

[53]In order to determine whether the conduct is related to the protected characteristic, it is necessary to consider the mental processes of the alleged harasser (Henderson v General & Municipal Boilermakers Union

[2016] EWCA Civ 1049

). This may be conscious or unconscious: as stated by Underhill LJ in Unite the Union v Nailard

[2018] EWCA Civ 1203

: “it will of course be liable if the mental processes of the individual decisiontaker(s) are found (with the assistance of section 136 if necessary) to have been significantly influenced, consciously or unconsciously, by the relevant protected characteristic.”

[54]As set out in the EHRC Code, “unwanted conduct” can include “a wide range of behaviour” (at paragraph 7.7) and it is not necessary for the employee to expressly state that they object to the conduct (at paragraph 7.8).

[55]A single incident can be sufficient provided it is sufficiently serious (Bracebridge Engineering Ltd v Darby

(1990) IRLR 3

[56]When looking at the effect of harassment, this involves a subjective and objective test. The subjective test is to assess the effect that the conduct had on the complainant, and the objective test is to assess whether it was reasonable for the conduct to have that effect (Pemberton v Inwood

2018 ICR 1291

, CA). The conduct complained about must however “reach a degree of seriousness” in order to constitute harassment, so as not to “trivialise the language of the statute” (GMB v Henderson

[2015] IRLR 451

, at 99.4).

[57]In relation to the subjective element, different individuals may react differently to certain conduct and that should be taken into account. However, as set out in Richmond Pharmacology v Dhaliwal

2009 ICR 724

by Mr Justice Underhill: “if, for example, the tribunal believes that the claimant was unreasonably prone to take offence, then, even if she did genuinely feel her dignity to have been violated, there will have been no harassment within the meaning of the section. Whether it was reasonable for a claimant to have felt her dignity to have been violated is quintessentially a matter for the factual assessment of the tribunal. It will be important for it to have regard to all the relevant circumstances, including the context of the conduct in question.” Victimisation

[58]Section 27 of the Equality Act provides: “(1) A person(a) (A) victimises another person

(b) (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; and d) Making an allegation (whether or not express) that A or another person has contravened this Act. “

[59]The detriment will not be due to a protected act if the person who put the individual to the detriment did not know about the protected act (Essex County Council v Jarrett EAT 0045/15, and Deer v Walford and anor EAT 0283/10 where awareness of “some sort of legal case” was insufficient to establish knowledge).

[60]For victimisation to occur, the detriment must be because of the protected act. It does not need to be solely because of the protected act to amount to victimisation, but it does need to have a significant influence (Nagarajan v London Regional Transport

1999 ICR 877

, HL). This means an influence which is “more than trivial” (Igen Ltd v Wong, above.).

[61]The motivation does not need to be conscious (Nagarajan, above). It is possible for a dismissal or detriment to be in response to a protected act but nevertheless not amount to victimisation if the reason for the treatment is not the complaint itself but a separable feature of it such as the way in which the complaint was made (Martin v Devonshires Solicitors

[2011] ICR 352

[62]The focus should be on the motivation of the person who submitted the individual to the detriment. If a third party provided “tainted information” to influence the decision maker, that would need to be raised as a separate allegation, otherwise an innocent party could find themselves liable for an act for which they were personally innocent (Reynolds v CLFIS (UK) Ltd and ors

2015 ICR 1010

, CA).

[64]However, the Tribunal received no evidence that suggested a connection between the actions of the Respondent and the Claimant’s race. The Tribunal concluded that there was no basis to infer that the reason for the lack of inclusion of the Claimant was her race. This allegation is dismissed. 65. b. Claimant was denied the opportunity to transfer to a role in the Technical Team in or around August 2023, when a colleague retired leaving a vacancy. The Tribunal viewed there to have been a fundamental misunderstanding by the Claimant as to the nature of her job with the Respondent. The Claimant’s job was not the same as that of Emma Smith. The Tribunal accepts that the Claimant would not have known that they were on separate tracks, as Ms Smith was initially doing the same job as the Claimant. However, Ms Smith was always destined to move to the Technical Department as this was part of the Respondent’s succession planning when another member of the department retired.

[66]The Claimant was not aware of it at the time, but Ms Smith was taken on as a graduate paraplanner and not as a CSA. They were not therefore materially the same and hence Ms Smith is not an appropriate comparator. The Tribunal found that there was no evidence of less favourable treatment by the Claimant, as she was in the CSA role. This allegation is dismissed. 67. c. The Claimant received less support than Ms Smith by her manager Ms McNicholl, throughout the Claimant’s employment. The Tribunal saw no evidence of what support was given to Ms Smith and therefore cannot say that Ms Smith was given more or different support to the Claimant.

[68]Ms McNicholl did supervise and train the Claimant. Ms McNicholl said that the Claimant had started well in her role, but that by November 2022 she was not as keen and was not picking up the work.

[69]The Tribunal saw no contemporaneous notes by Ms McNicholl of any review with the Claimant and no personnel notes were in the bundle. There was also no evidence that a written copy of anything which was agreed with the Claimant about her performance was ever provided to her.

[70]The evidence which the Tribunal heard suggested that Ms McNicholl had no management training and no formal training on how to be an effective trainer. Ms McNicholl’s evidence was that she did what she thought was best and repeated instructions to the Claimant and checked her work. The Claimant considered this to be overbearing, although such a position is contrary to the allegation being made.

[71]The Tribunal found that Ms McNicholl was giving the Claimant support and encouragement. This was not less favourable treatment than was being provided to any other member of staff, as far as we can tell from the evidence. On that basis there was no discrimination. 72. d. The Claimant was told around August 2022 by Mr Hodgson that she would need to purchase study materials herself and claim the cost back, in contrast to the advice to Ms Smith.

[73]The evidence before the Tribunal, contained within the Claimant’s contract, indicated that the Respondent would pay for the study materials. The email which the Claimant received also supports this assertion. The Claimant accepted that in November 2022 she was given the Company credit card and allowed to purchase the materials. This was within 2 days of Ms Smith purchasing her materials.

[74]The Tribunal have no evidence to corroborate the allegation that Mr Hodgson told the Claimant that she would have to make the purchase and then reclaim the money. As that was not in fact how the purchase transpired, nor what was anticipated in the company documents. The Tribunal therefore concluded that this comment was not made and this allegation is dismissed. 75. e.The Claimant was not invited to meetings for the introduction or promotion of new client services or platforms. In particular the Claimant relied on not being taken to the meeting with Aegon. There is no evidence to suggest that the Claimant was invited to the meeting. The Tribunal found that this would amount to less favourable treatment in comparison to Ms Easton and Ms Smith, with regard to various providers, as they were allowed to go to the meetings. Ms Smith was taken to these meetings due to her role as a graduate paraplanner and therefore cannot be compared to the Claimant.

[76]The reason given by the Respondent for this action, was that someone had to cover the phones whilst the more senior people went to the meeting.

[77]The Tribunal can find no evidence to infer that the reason why the Claimant was not invited to such meetings was her race. There is nothing which suggests a link between the decision to ask her to cover the phones and her race. This does not therefore amount to discrimination and the allegation is dismissed. 78. f. Not being given adequate support to allow her to cover the department when colleagues were on holiday in May 2022. In particular the Claimant asserted that she was not provided with the password for the voicemail system. The Tribunal were taken to emails which showed that Ms McNicholl and Mr Dempsey told the Claimant that the password was available on the shared drive. Ms McNicholl did not consider that the Claimant was in fact left in charge of the office at this time, although she accepted that there was no-one else there.

[79]The Claimant’s own evidence was that Ms Smith was not provided with the passwords either. The Claimant relied on Ms Easton as the comparator, whom she believed to have been given the password when she was left in the office. The Tribunal did not see any evidence of Ms Easton having been given the information.

[80]The Tribunal therefore concluded that this allegation could not be upheld on a factual basis. 81. g. The Claimant’s dismissal two days after she failed a professional exam. The Claimant compared herself to Ms Smith who was allowed to keep working although she had failed the exam on multiple occasions.

[82]The Tribunal noted that the evidence showed that in May various problems with the Claimant’s work were highlighted. She was told that she would be reviewed in August.

[83]On 15 August a review was conducted which was negative in tone. The Claimant agreed that she had been approached by recruitment agencies to move on, but that she had not looked into these offers. After the meeting, Mr Dempsey, Ms McNicholl and Mr Hodgson concluded that the Claimant was to be dismissed. However, on 16 August the Claimant applied to do her exam. The Respondent therefore did not action the decision to dismiss, so the Claimant could sit the exam. On 28 August Mr Dempsey’s email indicated that the dismissal of the Claimant was inevitable as he considered the relationship to be broken. Ms McNicholl was more supportive of the Claimant, saying that whilst there were performance issues, the Claimant had fitted in well.

[84]The Tribunal concluded from this evidence that the Claimant’s dismissal was related to her work performance which had been an ongoing issue for some months. The decision to dismiss the Claimant was taken on 15 August and was therefore before she sat the exam. It therefore could not be related to the fact that she failed the exam. The fact that she failed did not alter the decision. Nor did any of this evidence link the dismissal in any way to the Claimant’s race. Nothing in this evidence could be said to infer that the dismissal was due to race. The decision was connected to poor performance over a long period. This allegation is dismissed. 85. h. The Claimant was told early in her employment that there was no intention to progress her by gaining qualifications. The Claimant compared herself to Ms Smith whom she said had been encouraged to progress. We have already outlined that this was due to Ms Smith having the position of graduate paraplanner.

[86]There is no evidence to support the Claimant’s contention that her replacement was encouraged to progress to a role in the Technical team. The Tribunal therefore cannot find as a fact that this allegation occurred. There is no evidence that Mr Hodgson, Ms McNicholl or Mr Dempsey said that she would not progress. 87. i. In August 2022 and December 2022 at an office party Mr Hodgson told the Claimant that she ‘ticked a diversity box’. In August 2022 there was party to celebrate the end of the financial year. The Claimant said that Mr Hodgson made this comment at the party. However, the Claimant’s evidence on this incident has not been consistent, as she referred to the comment as ‘a diversity hire’ and as ‘tick a diversity box’. She also said that it had been said twice and that Mr Guthrie was present to hear it being said. She changed this evidence to it having been said once and that Mr Guthrie was in the office when she spoke about it. The Tribunal noted that all parties had been drinking alcohol at the time. We also noted that the Claimant did not complain to Ms McNicholl on WhatsApp when they discussed the party. Mr Hodgson’s evidence was that he did not say it at all.

[88]The only independent potential witness of the event, Mr Gurthrie told the Tribunal that he was not present and did not therefore hear such a remark, or the Claimant complain about it at a later date.

[89]The Tribunal were not satisfied that there was any evidence to support the Claimant’s version of events that this was said and that the Claimant’s own evidence was inconsistent about the incident. We therefore concluded that there was insufficient evidence to find this allegation.

[90]In relation to the allegation that the same ‘tick a diversity box’ statement was made by Mr Hodgson in December 2022, the Tribunal found that there was also a change in the Claimant’s evidence about this. The Claimant told the Tribunal that at a Christmas party, the Claimant had put fairy lights in her hair and that other women had wanted to have a photo taken with her. Mr Hodgson had then said to her that “ didn’t know you were a lesbian as well, that’s two boxes”, or words to that effect. This was denied by Mr Hodgson.

[91]The documentary evidence showed that the Claimant discussed the event with Ms McNicholl on Whatsapp shortly after, but she did not mention this comment or complain that she was upset by it. The first time the Claimant mentioned this event was at the preliminary hearing.

[92]We therefore concluded that there was insufficient evidence to support this allegation and we dismiss this allegation. Harassment

[93]The manner of the dismissal on 29 August 2023, as the Claimant was given no notice of the meeting and was escorted to her car with a box of her possessions. The Tribunal noted that there was no invitation in writing to the meeting, nor was there any suggestion or warning that a potential outcome of the meeting would be dismissal. This is not a statutory requirement, but the ACAS Guide on Discipline at Work suggests that before any disciplinary meeting, a letter should be sent to the employee notifying them of the nature of the complaint and giving them the right to be accompanied and told if dismissal is a potential outcome.

[94]The evidence showed that Ms McNicholl was being friendly and supportive towards the Claimant in their private messages, but that the content of her emails to her managers was very critical of the Claimant. In her evidence she noted that she ought to have been more professional in her WhatsApp messages to the Claimant. The Claimant therefore took no hint of a dismissal from the words of Ms McNicholl.

[95]There was agreement between the parties that following the end of the meeting, the Claimant was allowed to gather her belongings into a box and that she was escorted to the car park.

[96]The Tribunal concluded that the lack of notice of the meeting, the lack of indication that she was underperforming and the fact that the Claimant was escorted to her car were both examples of unwanted conduct.

[97]There was however, no evidence before the Tribunal on the effect on the Claimant of having no notice of the meeting. The Claimant said nothing more than the fact that no notice had been given. There was likewise no evidence to support the idea that this had been a considered step by the Respondent with the purpose of intimidating the Claimant. The Tribunal therefore could not conclude that it had either the purpose or the effect of harassment (as defined in s.26 Equality Act).

[98]The conduct of being escorted to her car, whilst not designed by Mr Dempsey to humiliate or intimidate had the effect of doing so. The Tribunal accept that Mr Dempsey did give the Claimant the option of waiting until other staff had left, but this does not detract from the effect that this action had on the Claimant. She was humiliated and intimidated by this action. The Tribunal accept that was a reasonable response by the Claimant to the situation.

[99]However, the Tribunal were unable to conclude that this action was connected to the Claimant’s race. There was no suggestion that Mr Dempsey had been prompted to act this way by the Claimant’s race. Indeed his evidence satisfied the Tribunal that he would have done the same thing to a white, Scottish employee (or any other hypothetical employee). This allegation therefore fails.

[100]Repeatedly monitoring the Claimant’s LinkedIn page after her dismissal.The Respondent admitted that they did watch the Claimant’s LinkedIn profile after her dismissal. This included action by the Respondent’s HR adviser. The Tribunal was satisfied this amounted to unwanted conduct by the Respondent. Whilst there was no evidence to support any suggestion that there was a purpose of intimidation, the Claimant’s evidence that it had this effect was accepted by the Tribunal.

[101]The Respondent’s explanation of this behaviour was that the Claimant was a potentially disgruntled ex- employee and they were aware that she had posted negative comments about her previous employer and were concerned she may do the same of them.

[102]The Tribunal considered whether the evidence showed or inferred any link to the Claimant’s race by these actions. We could find nothing which suggested that the reason for the Respondent’s actions were related to race. This allegation is dismissed. Victimisation

[103]Protected Acts The Claimant relied on statements made in review meetings with Ms McNicholl in;a. January/February 2023

b. July 2023

[104]These points were not put to Ms McNicholl or Mr Dempsey in evidence. The Claimant did not suggest to them that she had complained of discrimination under the Equality Act 2010 during those meetings. Nor did the Claimant put to Mr Hodgson in her questions to him that he had been present and said he would investigate.

[105]The Tribunal was not shown any documentary evidence in relation to these meetings. There were no notes or minutes. Therefore there is nothing to corroborate the Claimant’s assertion that this was said.

[106]The Tribunal did not consider, on the balance of the evidence that any protected act as defined by s.27 Equality Act had occurred. Hence these claims must fail.