Ms E Okwuwe v Greater Glasgow Health Board: 8001137/2024 and 8001608/2024

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 8001137/2024, 8001608/2024

Venue Glasgow

Hearing 25, 26, 27, 28 and 29 August; and 1 September 2025

Between

Ms E OkwuweClaimant

Greater Glasgow Health BoardRespondent

Before

Employment Judge A Strain

Mr R Clarke (instructed by Solicitor) for claimant

Mr A Hardman (instructed by Advocate) for respondent

Date 19 October 2025

JUDGMENT

The Judgment of the Employment Tribunal is that: the Claimant’s claims of direct discrimination, victimisation, harassment and unfair constructive dismissal are unsuccessful and are dismissed.

REASONS

[1]The Claimant was represented by Mr Clarke, Solicitor. The Respondent was represented by Mr Hardman, Advocate.

[2]The Claimant asserted four claims detailed in her 2 applications as follows:a. She was subjected to a discriminatory course of conduct in the period from 19 April 2023 to 25 May 2024 which constituted direct discrimination against her on the ground of her race contrary to s.13(1) of the Equality Act 2010 (EA 2010);

b. She was subjected to race related harassment contrary to s.26(1) EA 2010;

c. She was victimised by the Respondent contrary to s.27 EA 2010 ; and

d. She was unfairly constructively dismissed contrary to s.98 of the Employment Rights Act 1996 (ERA).

Issues

[3]Parties had agreed issues to be determined by the Tribunal as set out in the bundle (120 -123). Bundle of Documents

[4]The Parties had lodged a Bundle of Documents with the Tribunal for the purposes of the Hearing. Witnesses

[5]The Tribunal heard evidence from the Claimant, Angela Hamlin (AH), Senior Charge Nurse, Amy Griffin (AG), Staff Nurse, Sarah Cosgrove (SC), Lead Nurse, Barry McCreadie (BM), Nursing Assistant, Graham Crockett (GC), Senior Charge Nurse, and Kirsteen Slavin (KS), Inpatient Clinical Services Manager, for the Respondent. Findings in fact

[6]Having heard the evidence and considered the documentary evidence before it the Tribunal made the following findings in fact.

[7]The Claimant is of Black African race.

[8]The Respondent is a National Health Service Health Board.

[9]The Claimant was employed by the Respondent initially as a Support Services Assistant from 23 August 2021. From 23 May 2022 the Claimant was a Nursing Assistant Band 3 working within Leverndale Hospital, Glasgow.

[10]Leverndale Hospital is a low secure unit within the Respondent’s Forensic Mental Health and Learning Disabilities Directorate.

[11]The Claimant worked with colleagues in a low secure ward (Ward 5) providing care and support for vulnerable individuals with mental health and learning disabilities.

[12]The Claimant’s normal hours of work were 37.5 hours per week. In addition, the Claimant undertook bank work which constituted extra shifts as and when required.

[13]The Respondent’s work force within Leverndale Hospital and in the Ward(s) the Claimant worked is both multicultural and diverse.

[14]The Claimant’s line manager over the period 23 May 2022 until 6 May 2024 was AH. Special Leave

[15]On 18 April 2023 the Claimant’s trade union representative, Josh Henderson (JH), informed AH that the Claimant had criminal charges against her. A meeting to discuss this was arranged for 19 April 2023.

[16]The meeting took place on 19 April 2023 at Leverndale Hospital. Present were the Claimant, AH, Farai Madziva (a Senior Charge Nurse) and JH. The Claimant informed AH that she had been cautioned and charged by the Police with assaulting her 5 year old child.

[17]In light of the nature of the charge and the duties and responsibilities of the Claimant at work the Claimant was placed on special leave with effect from 19 April 2023 to allow further information to be gathered following a social work meeting the Claimant was due to attend on 24 April 2023 to discuss the situation. the decision to place on special leave was made by KS and communicated by AH at the meeting.

[18]The social work meeting was delayed and the Claimant remained on special leave and was requested updates regarding the charge against her, any court proceedings and dealings with social work.

[19]The Respondent has a Special Leave Policy (Pages 147-152). The Claimant was placed on special leave in accordance with this Policy and was paid her normal weekly pay during the period of special leave.

[20]On 20 April 2023 the Respondent’s Nursing Bank was informed by Adrian Leitch (AL), Lead Nurse for low secure services that the Claimant had been placed on special leave and that the Claimant should be removed from bank duties. The Claimant’s access to the Nursing Bank Application (an app) was also removed.

[21]KS instructed HR, following the Claimant’s commencement of special leave on 19 April 2023, to try and find alternative placements for the Claimant.

[22]The Respondent (AH) maintained contact with the Claimant during her absence on special leave and asked that she keep them updated with any developments.

[23]AH contacted the Claimant several times towards the end of April and early May to arrange a meeting to update the Respondent regarding developments with social work in relation to her child, the criminal charge and special leave.

[24]On 10 May 2023 a further meeting took place with KS, AH, JH and the Claimant. The Claimant provided an update to the effect that she had been charged with assault of minor and the meeting with social work that had been planned for 24 April had not taken place. A further meeting had been planned for 10 May and that had also been postponed. The Respondent discussed the Claimant’s potential return to work with her and informed her that any return would be in a non-patient facing role due to the nature of the charge against her.

[25]On 12 May 2023 AH discussed the potential temporary placement of the Claimant within the Respondent’s Laundry facility at Hillington, Glasgow as an alternative to suspension. The temporary placement had been raised by KS. The Claimant was not agreeable to the placement.

[26]The Claimant’s Trade Union Representative JH emailed KS and AH on 12 May 2023 (Page 217) indicating concerns around the shift pattern for the temporary placement and the impact on the arrangements the Claimant had for child care. He wished a shift pattern that more suited her childcare commitments to be considered.

[27]AH spoke with the Claimant on 12 May 2023 and the Claimant indicated the placement in the laundry was not suitable as it was not family friendly due to the shifts and her childcare commitments.

[28]The Respondent endeavoured to accommodate the Claimant’s shift pattern and confirmed the temporary placement in a letter to her of 25 May 2023 (Page 227-228). The decision to confirm the temporary placement was made by KS.

[29]The Respondent wrote by letter of 26 May 2023 and informed the Claimant that a formal investigation would be conducted into the allegations against the Claimant that she had been charged with assault of a minor (Page 229).

[30]The Respondent organised shifts to suit the Claimant’s childcare arrangements and a start date of 1 June 2023 was discussed and agreed with the Claimant and JH.

[31]The Claimant attended the laundry on 1 June 2023. She was given a guided tour and the process explained to her.

[32]The Claimant consulted her GP on 1 June 2023 and was signed off until 29 June 2023.

[33]On 2 June 2023 JH issued an email to KS that the Claimant felt “undervalued, disregarded and treated as unskilled”. She felt that the work in the laundry was “degrading”. JH sought a referral to OH and the decision to place the Claimant at the laundry be reviewed (Page 249).

[34]KS responded by email of 2 June 2023 to JH advising that an OH referral had been made and an alternative work placement was being looked into (Page 249).

[35]AH maintained contact with the Claimant by telephone during her sickness absence. On 4 June 2023 the Claimant informed AH that a court date had been set for 10 July 2023 in respect of the charge against her. AH informed the Claimant that she must keep AH informed through her period of sickness absence.

[36]The Claimant was signed off for a further period of 4 weeks.

[37]On 25 July 2023 AH met with the Claimant, her trade union representative and Elaine Parnell (EP) (Senior Charge Nurse). A summary of matters discussed was produced by AH in an email dated 25 July 2023 to KS (Pages 257-260). An outcome letter was issued dated 25 July 2023 detailing the matters discussed in the meeting (Page 253-255). The Respondent agreed to re-visit the assessment that the Claimant should be excluded from patient facing roles and look at an alternative placement to that of the laundry.

[38]The Respondent revisited the assessment and also considered whether there were any alternative roles. KS contacted HR on a regular basis to explore any alternative roles.

[39]AH wrote to the Claimant by letter of 28 July 2023 informing her that the assessment had been revisited and the decision remained the same that she should not be on patient facing roles given the nature of the charge against her (Page 279-280). This letter also informed her that the role at the laundry continued to be a role for her that suited her child care arrangements. The Respondent would look at available admin roles.

[40]KS contacted HR on a regular basis to find out if there were any other roles (including admin roles) available. There were none during the Claimant’s period of absence.

[41]The Respondent obtained an OH Report on the Claimant dated 16 August 2023 (Pages 282-296).

[42]On 30 August 2023 the Claimant met with AH, EP and JH to discuss her phased return to work. AH wrote a letter of the same date to the Claimant confirming what was discussed at the meeting (Page 297-298). The Respondent agreed to continue to explore alternatives other than working in the laundry for the Claimant.

[43]On 28 September 2023 the Claimant attended a further meeting with AH, Stuart McInnes (SM) (HR Advisor) and JH. AH issued a letter of the same date confirming what was discussed at the meeting (Page 306-307). The Claimant maintained that the laundry role was unsuitable for her and the Respondent agreed to continue to look for alternatives.

[44]The Claimant was absent from work due to stress from 29 September 2023. The Respondent made a further referral to OH to consider whether or not the Claimant was fit to work in the laundry and what further support could be provided to her.

[45]The Respondent obtained an OH Report on the Claimant dated 8 November 2023 (Pages 312-321). This report highlighted the Claimant was finding the work in the laundry too heavy and physically exhausting. It was having an impact on her mental health. An alternative role should be explored.

[46]The Claimant informed the Respondent that the charge against her had been dropped on 16 November 2023. Return to Work

[47]The Claimant met with AH, SM, Helen Downie (Occupational Health Lead Nurse) and her trade union representative on 29 November 2023. AH issued a letter of the same date confirming what was discussed at the meeting (Page 326-327). This meeting confirmed that the Claimant would return to her substantive post on a phased return to work and a further report would be obtained from OH. Following the phased return she would be returned to her post on the nursing bank.

[48]Prior to her return to work in her substantive post the Claimant worked nightshift with a colleague BM on 24-25 December 2023. She shouted and screamed at BM accusing him of not doing his work or helping her. BM was in fact doing the majority of the work on that shift. BM told the Claimant that if she could not speak to him like a normal person then there was no point in having a conversation.

[49]The Claimant kept her distance from BM and other members of staff. BM and the Claimant continued to work 2-3 times per week in close contact on nightshifts.

[50]The Claimant complained about BM to AH by calling AH at home on Christmas Day (25 December 2023) at 6.30am whilst AH was on leave. The complaint was that BM had made her do all the work on that night shift and was not helping. AH told her to report the matter to the nightshift co-ordinator and to call AH at a reasonable time.

[51]Following her return to work AH investigated and did not find there to be any merit in the complaint. Both BM and the Claimant were of the same grade and both worked nightshift together.

[52]AH met with the Claimant and her trade union representative to discuss this informally. The Claimant’s trade union representative told the Claimant that it was not acceptable to contact AH at home at 6.30am on Christmas day. In that meeting the Claimant also complained that BM was getting the majority of nightshifts. AH was not responsible for allocation of nightshifts but ascertained that the Claimant was, in fact, getting the majority of nightshifts.

[53]The Claimant returned to her substantive post on a phased basis with effect from 27 December 2023. The Respondent took steps to support her in her return to work such as making the return to work phased, a further referral to OH, training, supervision and supportive meeting with AH on 28 December 2023 (Pages 328-329).

[54]The Claimant raised ongoing issues with her work colleagues at the supportive meeting with AH on 28 December 2023. AH suggested resolving these by having a meeting with her colleagues but the Claimant refused.

[55]The Claimant generally ignored, refused to interact with, was dismissive and difficult towards her colleagues and AH following her return to work. AH attempted to speak to the Claimant about her behaviour but the Claimant would not engage with her.

[56]The Claimant accused a colleague Sarah Hood of harassing her on 2 March 2023 which she refuted and reported to AH in emails of that date (Pages 330- 331).

[57]AG sent an email of 3 March 2024 to Shannon Philip (her line manager) describing the hostile and rude action of the Claimant that she had observed while working with her (Page332). The Toilet Incident

[58]Staff toilets are provided for staff use at Leverndale Hospital. The staff toilets are located in the staff room outside of the secure wards 5 and 6 and also by the reception area at the entrance. For health and safety reasons all staff are aware of the need to be accountable at all times during a shift. Staff are at risk from vulnerable patients in the Hospital. In the weeks prior to March 2023 a staff member had been found unconscious in the toilet.

[59]On 25 March 2023 the Claimant was using a staff toilet near the Reception area. One of the staff toilets was out of use in the staff room and the other occupied. AG came out of Ward 6 to use the toilet. She observed that one of the staff room toilets was out of use and the other was occupied. She went to the toilet at the reception area. She noted that the toilet was occupied and waited for approximately 10 minutes. Another member of staff was waiting with her (Irene). One of the Claimant’s colleagues (Nikki) came out of Ward 5 and asked where the Claimant was as they had been looking for her. Nick, the receptionist, informed AG that the Claimant had been in the toilet for a long time and he had heard her using her phone. Nick suggested that AG chap the door to check the Claimant was alright. AG chapped the toilet door lightly and said “Just checking you are ok”. The Claimant then opened the door. AG said words to the effect of “you have been in there a long time. Just checking you are ok and people are waiting to use the toilet.” The Claimant responded aggressively saying “How many years!” AG did not respond to this, turned around and walked away. The Claimant followed her and confronted AG aggressively stating “Never do that to me again okay!”. The Claimant then turned around and walked away.

[60]AG reported the incident to her charge nurse on duty and also issued an email of 25 March 2023 to AH (Page 334).

[61]On 25 March 2023 the Claimant emailed AH (copied to KS) alleging bullying and harassment at work in respect of the toilet incident (Page 344-355).

[62]On 28 March 2023 KS emailed the Claimant to inform her that she had asked SC to progress the Claimant’s concerns (Page 343). SC is a Lead Nurse in the Respondent’s Medium Secure Service.

[63]SC emailed the Claimant on the same date to try and meet as soon as possible (Page 342-343).

[64]The Claimant was absent from work due to sickness with effect from 28 March 2023.

[65]The Claimant participated in an early resolution meeting by Microsoft teams on 24 April 2024. SC, Collette Kinloch (HR Advisor) and the Claimant’s trade union representative participated. SC explained this was an early resolution meeting and matters were being dealt with informally.

[66]The Claimant expressed her concerns relating to lack of support from AH and feeling ignored. SC discussed options with the Claimant which included a move to another ward, moving to Rowanbank and raising her concerns formally which would lead to a formal investigation. She did raise vague, generalised allegations of discrimination during the meeting but did not make any specific allegations against any particular member of staff. The meeting concluded on the basis that the Claimant was going to discuss options with her trade union representative and then let SC know how she wished to proceed.

[67]The Claimant sent an email to AH on 24 April 2024 (Page 352).

[68]SC did not hear from the Claimant so she issued an email on 26 April 2024 asking if the Claimant had given any further thought to the discussions and whether there was anything further SC could do to support her (Page 366- 367).

[69]The Claimant sent an email of 28 April 2024 to AH and copied SC which included allegations of bullying and harassment by AH and other staff members (Page 363-364).

[70]SC did not receive any response to her email of 26 April 2023 and issued a further email of 30 April 2023 (Pages 365-366). In that email she indicated the view that remaining in ward 5 was not a viable option for the Claimant.

[71]The Claimant did not respond to SC’s email of 30 April 2023. As a consequence and out of concern for the Claimant SC made the decision to transfer the Claimant to a different ward as a temporary measure and whilst the Claimant consider the options discussed. This was communicated to the Claimant by email of 3 May 2024 (Pages 372-373).

[72]On 3 May 2024 the Claimant’s trade union representative emailed SC with her concerns about the proposed transfer (Page 371-372). Transfer to Rowanbank

[73]On 3 May 2024 SC discussed matters with the Claimant by telephone and communicated their agreement to a move to Rowanbank (a medium secure unit at a different location from Leverndale) on an interim basis. The Claimant explained that she may wish to have mediation with AH and potentially remain in Ward 5 but would consider matters. SC recorded this agreement in an email of the same date to the Claimant and her trade union representative (Pages 370-371).

[74]By email of 6 May 2023 the Claimant communicated to SC that she did not wish mediation or a return to Ward 5 (Page 370).

[75]On 6 May 2023 the Claimant applied for an alternative post within the Respondent as a Trainee Assistant Practitioner (Pages 375-382).

[76]The Claimant commenced working at Rowanbank with GC as her line manager in or around 15 May 2024. Child Protection Concerns

[77]On 27 May 2024 the Claimant went into GC’s office and discussed various matters with him. During the course of that conversation the Claimant said that GC did not understand and that she had to leave her children in the house alone today so that she could come in to pay back time that she owes. GC asked what age her children were and the Claimant responded 8,7 and 4. GC asked who was looking after her children and she responded “I don’t have anyone to look after them.” GC asked her if she had come to work today and left an 8, 7 and a 4 year old in a house by themselves and without an adult? The Claimant responded “yes”. GC advised the Claimant to go home immediately. The Claimant stated that she couldn’t as she needed to work. GC informed the Claimant that her children’s welfare and safety should be her primary concern and that she was authorised to leave work immediately. The Claimant did not appear to understand the gravity of the situation and repeated that she needed to be at work. GC advised her that she could not attend work to the detriment of her children’s welfare and safety. GC informed the Claimant that he was duty bound to report her as her actions were child protection concerns. The Claimant asked GC not to report her and informed him that there was someone living in the top storey flat if need be. GC informed the Claimant that her actions were irresponsible and that she must go home immediately. The Claimant eventually left.

[78]GC reported the matter to SC immediately and recorded this in an email of 27 May 2023 to SC (Pages 418-419).

[79]SC contacted the Respondent’s Public Protection Unit (PP) for advice. She was told to report the matter to the Police and was sent an NOC (Notification of Concern) to complete and return. SC reported to the Police and also submitted the NOC at 12 noon that day (Pages 411-414).

[80]SC telephoned the Claimant on 27 May 2024 and informed her that she had reported the matter to the Police and the Respondent’s PP. The Claimant asserted that GC had misunderstood her but when questioned by SC he accepted that she had told GC she had left her children home alone. SC recorded this conversation in an email to herself of the same date (Page 420).

[81]The Police reported to SC by telephone on 27 May 2024 and informed her that they had attended at the Claimant’s home and spoken to a relative of the Claimant who stated he had been looking after the children in her absence. The Police confirmed they were satisfied and would be taking no further action.

[82]By email of 29 May 2024 the Claimant informed SC and GC that she would not be able to attend work due to the incident of 27 May 2024 and asked that she be granted leave (Page 423).

[83]By email of 9 June 2024 the Claimant intimated her resignation and asserted the reason for her resignation as being “bullying, harassment, victimisation and racial discrimination within my work environment” (Page 432).

[84]On 11 June 2024 SC emailed the Claimant and sought to meet with her to see how the Claimant could be supported to remain at work (Page 434). The Claimant did not respond to this email.

[85]On 14 June 2024 SC emailed the Claimant and her trade union representative to inform then that SC was about to go on leave, that KS would deal with matters in her absence and documented matters discussed and actions taken to date, the offer to try and support the Claimant to remain at work and offered an exit interview (Page 439). The Claimant did not respond to this email.

[86]On 27 June 2024 AH provided a reference for the Claimant’s Job Application she had made on 6 May 2024 (Pages 449-451). AH had discussed and received support on the content of the reference from KS. In trying to be truthful and supportive of the Claimant AH provided responses which were detrimental to the Claimant’s prospects of securing the role applied for.

[87]The Claimant’s employment ended on 7 July 2024.

[88]The Claimant was unsuccessful in her Job Application of 6 May 2924. The relevant law Direct racial discrimination

The relevant law

[89]Direct discrimination occurs where “because of a protected characteristic, A treats B less favourably than A treats or would treat others” (section 13(1), EA 2010).

[90]The less favourable treatment must be because of a protected characteristic. This requires the tribunal to consider the reason why the claimant was treated less favourably: what was the Respondent's conscious or subconscious reason for the treatment?

[91]The tribunal will need to consider the processes which led A to take a particular course of action in respect of B, and to consider whether a protected characteristic played a significant part in the treatment.

[92]If the treatment of B puts them at a clear disadvantage compared with others, then it is more likely that the treatment will be less favourable.

[93]There must be no material difference between the circumstances of B and the comparator (section 23(1), EA 2010).

[94]A constructive dismissal can amount to an act of discrimination - Nottinghamshire County Council v Meikle

[2004] IRLR 703

. Harassment

[95]Section 26(1) of the EA 2010 provides: A person(a) (A) harasses another

(b) (B) if A engages in unwanted conduct related to a relevant protected characteristic which has the purpose or effect of either: (i) Violating B's dignity, or (ii) Creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

[96]Section 26(4) EA 2010 provides: In deciding whether conduct shall be regarded as having the effect referred to the following must be taken into account:(a) The perception of B;

(b) The other circumstances of the case;

[97]The “effect” is judged by both subjective perception and objective reasonableness – Richmond Pharmacology v Dhaliwal

[2009] IRLR 336

. Victimisation

[98]Section 27(1) of the EA 2010 provides: Victimisation occurs where a person(a) (A) subjects another person

(b) (B) to a detriment because either: B has done a protected act. A believes that B has done, or may do, a protected act.

[99]Section 27(2)(a) provides that bringing proceedings under the EA 2010 is a protected act.

[100]Section 27(2)(d) provides that alleging (whether or not expressly) that another person has contravened the EA 2010 is a protected act.

[101]Victimisation may be established where an employee is subjected to a detriment "because" the employee has done (or might do) a protected act.

[102]Victimisation need not be consciously motivated. If A's reason for subjecting B to a detriment was unconscious, it can still constitute victimisation [Nagarajan v London Regional Transport and others

[1999] IRLR 572

[103]A protected act need not be the main or only reason for the treatment; victimisation will occur where it is one of the reasons (paragraph 9.10, EHRC Services Code).

[104]However, the protected act must be more than simply causative of the treatment (in the "but for" sense). It must be a real reason.

[105]Detriment is not defined in the EA 2010. Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] UKHL 11

held that a worker suffers a detriment if a reasonable worker would or might take the view that they have been disadvantaged in the circumstances in which they had to work.

[106]An "unjustified sense of grievance" is not enough [Barclays Bank plc v Kapur (No.2)

[1995] IRLR 87

]. Burden of Proof

[107]A two-stage approach to the burden of proof applies [Royal Mail Group Ltd v Efobi

[2021] UKSC 33

]: Stage 1: can the Claimant show a prima facie case? If no, the claim fails. If yes, the burden shifts to the Respondent. Stage 2: is the Respondent's explanation sufficient to show that it did not discriminate?

[108]The burden will shift where there are facts from which a tribunal could decide, in the absence of any other explanation that a breach has occurred. In that situation a respondent is required to show a non-discriminatory explanation for the primary facts on which the prima facie case is based [Glasgow City Council v Zafar

[1998] IRLR 36

(HL)].

[109]'Dismissal' is defined in s 95(1) ERA 1996 to include ‘constructive dismissal’, which occurs where an employee terminates the contract under which they are employed (with or without notice) in circumstances in which they are entitled to terminate it without notice by reason of the employer's conduct (s 95(1)(c)).

[110]The test of whether an employee is entitled to terminate their contract of employment without notice is a contractual one: has the employer acted in a way amounting to a repudiatory breach of the contract or shown an intention not to be bound by an essential term of the contract: (Western Excavating (ECC) Ltd v Sharp

[1978] ICR 221

[111]Was there a repudiatory breach of the claimant’s contract? If so, was the breach a factor in the claimant’s resignation? If so, did the claimant affirm the breach? Was there a repudiatory breach of contract?

[112]There must be a breach of contract by the employer. The breach must be “a significant breach going to the root of the contract” (Western Excavating). This may be a breach of an express or implied term. The essential terms of a contract would ordinarily include express terms regarding pay, duties and hours and the implied term that the employer will not, without reasonable and proper cause, act in such a way as is calculated or likely to destroy or seriously damage the mutual trust and confidence between the parties (Malik v Bank of Credit and Commerce International Ltd

[1998] AC 20

[113]Other terms may be implied into a contract of employment. For a term to be implied, the following conditions (which may overlap) must be satisfied:(1) it must be reasonable and equitable;

(2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it;

(3) it must be so obvious that ‘it goes without saying’;

(4) it must be capable of clear expression;

(5) it must not contradict any express term of the contract. (B.P. Refinery (Westernpoint) Pty Ltd v Shire of Hastings (1977) 180 C.L.R. 266).

[114]The breach may consist of a one-off act amounting to a repudiatory breach. Alternatively there may be a continuing course of conduct extending over a period and culminating in a “last straw” which considered together amount to a repudiatory breach. The “last straw” need not of itself amount to a breach of contract but it must contribute something to the repudiatory breach. Whilst the last straw must not be entirely innocuous or utterly trivial it does not require of itself to be unreasonable or blameworthy (London Borough of Waltham Forest v Omilaju

[2005] IRLR 35

[115]Whether there is a breach is determined objectively: would a reasonable person in the circumstances have considered that there had been a breach. As regards the implied term of trust and confidence: ''The test does not require a Tribunal to make a factual finding as to what the actual intention of the employer was; the employer's subjective intention is irrelevant. If the employer acts in such a way, considered objectively, that his conduct is likely to destroy or seriously damage the relationship of trust and confidence, then he is taken to have the objective intention spoken of…'' (Leeds Dental Team Ltd v Rose

[2014] IRLR 8

, EAT).

[116]There is no rule of law that a constructive dismissal is necessarily unfair. If it finds there has been a constructive dismissal a Tribunal must also consider whether that dismissal was fair or unfair having regard to section 98(4) of the ERA 1996, which provides - ‘’ (4) Where the employer has fulfilled the requirements of sub-section (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)-(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case’’.

[117]The Tribunal must therefore consider whether the respondent had a potentially fair reason for the breach (Berriman v Delabole Slate

1985 ICR 546

) and whether it was within the range of reasonable responses for an employer to breach the contract for that reason in the circumstances. When making this assessment, the Tribunal must not substitute its own view of what it would have done but consider whether a reasonable employer would have done so, recognising that in many cases there is more than one reasonable response. Submissions

[118]Both Parties lodged written submissions which were spoken to. In essence, the respective Parties submissions were as follows: The Claimant

[119]Mr Clarke submitted that the Claimant had been racially discriminated against, victimised and harassed by reference to each of the incidents specified in the agreed list of issues on pages 121-123.

[120]He also asserted that she had been constructively dismissed and that the alleged acts of discrimination, harassment, and victimisation constituted a course of conduct which breached the implied term of mutual trust and confidence, in response to which breach, at least in part, she gave 4 weeks’ notice of resignation on 10 June 2024.

[121]He addressed the Tribunal on the law, which the Respondent agreed was an accurate statement of the law, in his written submissions.

[122]He invited the Tribunal to prefer the evidence of the Claimant and to find that the proper inference to be drawn from the evidence is that, whether the relevant individuals realised it or not, race/the protected acts had a significant influence on them/their decisions. He submitted that such an inference should be drawn in all the circumstances (and that the burden of proof should shift to the Respondent). He cited 15 examples in his submission which he argued should lead the Tribunal to find an adverse inference.

[123]He addressed the Tribunal on the evidence both orally and in writing before the Tribunal in relation to the specific issues on Pages 121-123.

[124]The hypothetical comparator relied upon was a white employee.

[125]Mr Clarke invited the Tribunal to find that the actions of the Respondent amounted to acts of Direct Discrimination on the grounds of race, Harassment related to her race and Victimisation.

[126]In so far as constructive dismissal was concerned the events of 27 May 2024 constituted a repudiatory breach of contract, the Claimant resigned in response to the breach and did nothing to affirm the contract. In the alternative, there was a repudiatory breach of the implied term of trust and confidence as a result of the way she was treated in the period 19 April 2023 until 27 May 2023. If the last straw (the incident of 27 May 2024) was not in and of itself the last straw then it was part of a course of conduct which amounted to a repudiatory breach.

[127]He made submissions on time bar in respect of the discrimination claims. The Respondent

[128]Mr Hardman submitted that this case was entirely fact driven. He had no disagreement with Mr Clarke on the substantive law but the Claimant’s claims fell on consideration of the facts.

[129]He submitted that:a. There are no facts or inferences to be drawn from the evidence to suggest any conduct which demonstrates or infers that the Claimant was treated differently from any hypothetical colleague in sufficiently similar circumstances to those in this case.

b. Even were the Tribunal to find such facts or inferences, there are no facts or inferences to be drawn from the evidence to suggest that any treatment of the Claimant was on the ground of race.

[130]He addressed the Tribunal on the evidence before it and invited the Tribunal to prefer the evidence of the Respondent’s witnesses. The Claimant’s evidence was unsupported whereas the Respondent’s was overwhelmingly consistent.

[131]He went further to suggest that the Claimant had lied in respect of her evidence that she had not told GC of her leaving her children home alone on 27 May 2024 and that GC had used the term “people like you” referring to the Claimant in her meeting with him on 27 May 2024. This was not referred to in the letter of resignation or in the claims before the Tribunal despite her evidence that she had told Mr Clarke about this statement.

[132]The Respondent’s actions towards the Claimant had been reasonable and justified. There had been no repudiatory breach of the implied term of trust and confidence.

[133]He made submissions on time bar in respect of the discrimination claims.

[134]Mr Hardman invited the Tribunal to dismiss the claims. Observations on the evidence The Claimant

[135]The Tribunal did not find the Claimant’s evidence to be credible or reliable. The Tribunal considered her evidence to be self-serving and contrived.

[136]By way of example the Claimant’s evidence regarding what happened in the incident that has been referred to as the “toilet incident” is clearly contradicted not just be the oral evidence of AG before the Tribunal but also of AG’s email sent immediately following the incident and the emails of the Receptionist, Nicholas Tooth and Ashleigh McKenna dated 25 March 2024 (Pages 333 and 335).

[137]Further, the Claimant’s evidence regarding what was said in the meeting with GC on 27 May 2024 was a moving feast. She stated that GC did not give her the chance to explain, that GC had misunderstood what she had said and that she had not left the children without adult supervision. She conceded in her evidence that she had told GC she had left her children home alone.

[138]The Claimant also admitted to SC later that same day that she had told GC she had left her children home alone.

[139]The Tribunal also consider that her evidence to the effect GC used the term “people like you” was entirely false. The Tribunal agreed with Mr Hardman’s submission that if this remark had been made it would have been at the forefront of a complaint of racial discrimination yet it had not been mentioned until the Claimant gave her evidence.

[140]Furthermore, the Claimant attempted to portray a work place where she was excluded and was treated detrimentally because of her race was a contrivance. It was clear from the consistent evidence of the Respondent’s witnesses that every attempt had been made to include and support the Claimant. The Respondent’s Witnesses

[141]The Tribunal had no hesitation in preferring and accepting the evidence of the Respondent’s witnesses. Angela Hamlyn

[142]It was evident that AH had considerable difficulty in managing the Claimant. Her answers to questions posed were entirely forthright and honest. She clearly had tried to support the Claimant at every turn and was met with hostility and baseless accusations in return.

[143]She was candid about her concerns in providing a reference for the Claimant. This was due to her experiences of the Claimant and her desire to provide a truthful reference for her. She sought advice and support from her line manager KS with regard to responses in the reference. In trying to be truthful and supportive of the Claimant she provided responses which were undoubtedly detrimental to her prospects of securing the role applied for. This was clearly not motivated by any intention to harm the Claimant’s prospects but the reality was that her responses, and in some instances lack of response, was obviously detrimental to her prospects.

[144]There was no suggestion from the evidence that her actions were anything other than objective, professional and non-discriminatory. Kirsteen Slavin

[145]Ms Slavin was an experienced senior manager within the Respondent organisation and detached from the Claimant and AH. Her evidence was professional, clear and concise. She explained thoroughly and clearly the objective rational for placing the Claimant on special leave and the consideration that had been given to finding non-patient facing roles for her.

[146]The Tribunal found her evidence to be credible and reliable. There was no suggestion from the evidence that her actions were anything other than objective, professional and non-discriminatory. Sarah Cosgrove

[147]SC was a lead nurse in an entirely separate part of the Respondent’s organisation. She was detached from AH and the Claimant. She made considerable attempts to resolve the Claimant’s workplace issues and to support her. The Claimant was largely non-responsive to SC’s attempts to resolve issues and support her.

[148]She spoke to the early resolution meeting with the Claimant on 24 April 2024, its purpose, what was discussed, potential outcomes and options. No specific allegations of discrimination were made against specific staff members.

[149]SC explained thoroughly and rationally why it had been necessary to report the Claimant to the police and PP following the incident of 27 May 2024. She had taken advice and was acting in the interests of child protection.

[150]There was no suggestion from the evidence that her actions were anything other than objective, professional and non-discriminatory. Graham Crockett

[151]GC’s evidence was corroborated by his email, issued to SC, shortly after the meeting with the Claimant on 27 May 2024. The Claimant also conceded, eventually, that she had told GC she had left her children at home alone.

[152]The Tribunal accepted GC’s evidence that he had acted out of concern for the Claimant’s children. The Tribunal also accepted his evidence that he did not use the term “people like you” towards the Claimant.

[153]There was no suggestion from the evidence that his actions were anything other than objective, professional and non-discriminatory. Amy Giffen

[154]AG was a Staff Nurse who worked in a different ward from the Claimant. She gave a straightforward explanation of the events of 25 March 2023. Her evidence was corroborated by the email she had sent to AH following the incident and the emails from her colleagues Ashleigh McKenna and Nicholas Tooth on the same date.

[155]She also told the Tribunal of a previous occasion where she had witnessed the Claimant being hostile and rude on 3 March 2024.

[156]The Tribunal found her evidence to be credible and reliable. There was no suggestion from the evidence that her actions were anything other than objective, professional and non-discriminatory. Barry McCreadie

[157]BM’s evidence was confined to the events on nightshift 24-25 December 2023. He had worked that nightshift with the Claimant. She had been angry, shouting and screaming at him and accusing him of not doing his work and not helping her. In BM’s opinion he had been doing the majority of the work on that nightshift. He told the Claimant that if she could not speak to him like a normal person then there was no point in having a conversation.

[158]He did not ignore her or isolate her. She kept her distance. They continued to work 2-3 times per week in close contact on nightshifts.

[159]There was no suggestion from his evidence that his actions were anything other than objective, professional and non-discriminatory.

[160]The Tribunal preferred and accepted BM’s evidence. Decision and Reasons

[161]The Tribunal considered Mr Clarke’s submissions on adverse inference. In this regard he cited 15 reasons why he considered on the evidence the adverse inference should be drawn. He invited the Tribunal to find that after a careful and thorough investigation of the claim, the proper inference to be drawn from the evidence is that, whether the relevant individuals realised it or not, race/the protected acts had a significant influence on them/their decisions. He relied on Nagarajan v London Regional Transport and others

[1999] IRLR 572

in support of this submission.

[162]He submitted that the burden of proof should then shift to the Respondent under section 136 of the EA 2010.

[163]The Tribunal considered the 15 reasons in turn: (1) AH did not provide the Claimant with copies of the relevant policies when placing her on special leave on 19 April 2023.

[164]The Claimant was represented by her trade union at the meeting. The Respondent’s policies are available online. The Tribunal did not see any basis upon which to draw any inference from that fact. (2) KS moved the claimant into the ‘Laundry role’ (and kept her in that role) even though she knew that the claimant found this role “degrading” and that she felt “undervalued, disregarded and treated as unskilled” .

[165]The Tribunal have accepted KS’s evidence that this was the only non-patient facing role and that she was in regular contact with HR regarding finding an alternative role for the Claimant during her special leave. The Tribunal did not see any basis upon which to draw any inference from that fact. (3) KS did not, on the evidence, take any adequate efforts to find the claimant alternative work such as clerical work, which was the claimant’s preference

[166]The Tribunal found that KS had taken all reasonable steps to find the Claimant alternative work by her regular contact with HR. The Tribunal did not see any basis upon which to draw any inference from that fact. (4) KS did not, on the evidence, make any adequate effort/take proper steps to find the claimant alternative work, even though she knew that the work was not suitable for the claimant, and that it was injurious to her health and that these concerns were raised on multiple occasions by the claimant’s union representative.

[167]The Tribunal found that KS had taken all reasonable steps to find the Claimant alternative work by her regular contact with HR. The Tribunal did not see any basis upon which to draw any inference from that fact. (5) KS did not, on the evidence, move the claimant out of the laundry role even though Occupational Health advised that the work in the laundry was not suitable/ injurious.

[168]The Tribunal found that KS had taken all reasonable steps to find the Claimant alternative work by her regular contact with HR. The Tribunal did not see any basis upon which to draw any inference from that fact. (6) KS, and AH failed to heed the complaints made by the claimant in relation to discrimination/harassment or take them seriously/deal with them under the respondent’s Bullying and Harassment Policy.

[169]The complaints relied upon here appear to be those that are referred to as the protected acts and which are referred to below. Those complaints commence on 25 March 2024 with the Claimant’s email to AH and copied to KS. KS took immediate steps by appointing SC to progress the Claimant’s concerns. SC then contacted the Claimant and her trade union representative and arranged to meet. The meeting took place on 24 April 2024. SC explained this was an early resolution meeting and matters were being dealt with informally. Options were discussed with the Claimant which included progressing with a formal investigation. The Claimant did not ask for matters to be progressed formally.

[170]The Tribunal consider that KS and AH took all reasonable steps by appointing SC to deal with the Claimant’s concerns. The Tribunal did not see any basis upon which to draw any inference in the circumstances. (7) Moving the claimant off the ward into the laundry role was not a ‘supportive’ measure. The claimant’s evidence was that she would have preferred to be suspended if no alternative role could be found which was in any event the original recommendation.

[171]The Claimant wished to return to work but could not return to work in a patient facing role. The post in the laundry was discussed with the Claimant and her trade union representative. KS took every reasonable step to find an alternative role for her. In the circumstances the actions of KS were supportive. The Tribunal did not see any basis upon which to draw any (8) KS and AH failed to heed the complaints made by the claimant that she was having problems with her colleagues and had been ostracised.

[172]The Claimant relies on the supportive discussion on 28 December 2023 with AH (Pages 328-329) and also the emails from 2 members of staff (Pages 330- 331) in support of this. In the supportive discussion the Claimant mentions ongoing issues with staff which AH tries to address by suggesting a meeting which the Claimant refuses. AH also invites the Claimant to contact her if she has any ongoing concerns.

[173]The emails on Pages 330 and 331 show that another member of staff believed they had been unfairly accused of harassing the Claimant. These emails do not and cannot be considered to have been complaints by the Claimant.

[174]By seeking to address matters informally the Tribunal consider that AH acted reasonably. The Tribunal did not see any basis upon which to draw any (9) SC transferred the claimant into another ward (without the claimant’s agreement) notwithstanding the fact that it was the claimant who was complaining about discrimination.

[175]The Tribunal found that SC’s decision was made as a consequence and out of concern for the Claimant’s wellbeing as a temporary measure and whilst the Claimant considered the options discussed with her and her trade union representative at an earlier meeting. It was also against the backdrop whereby the Claimant had not responded to emails from SC chasing her on the options discussed and SC’s growing concern for the Claimant.

[176]This prompted an immediate response from the Claimant’s trade union representative and a discussion between SC and the Claimant that led to an agreement that the Claimant transfer to Rowanbank. The Claimant did not in fact transfer to another Ward.

[177]By seeking to address matters in this way the Tribunal consider that SC acted reasonably. The Tribunal did not see any basis upon which to draw any (10) SC failed to properly investigate the claimant’s complaint in relation to the ‘toilet incident’ under the respondent’s Bullying and Harassment Policy.

[178]SC was appointed to progress the Claimant’s concerns. SC contacted the Claimant and her trade union representative and arranged to meet. The meeting took place on 24 April 2024. SC explained this was an early resolution meeting and matters were being dealt with informally. Options were discussed with the Claimant which included progressing with a formal investigation.

[179]SC continued to deal with matters on an informal basis which included the Claimant’s agreed move to Rowanbank.

[180]The Claimant did not ask for matters to be progressed formally.

[181]By seeking to address matters in this way the Tribunal consider that SC acted reasonably. The Tribunal did not see any basis upon which to draw any (11) AH gave a negative reference for the claimant even though she had been made an offer for the position of Trainee Assistant Practitioner.

[182]The Tribunal preferred and accepted AH’s evidence that she genuinely wished to provide the Claimant with as good a reference as possible but that the reference should be accurate. She involved KS in the process and the preparation and content of the reference.

[183]The Tribunal found that the reference provided by AH was honestly and genuinely given. If anything AH answered some of the questions in the reference in such a way as to avoid making critical comments of the Claimant. One such example was the response to the Claimant’s suitability for the post on Page 450. AH had replied “No” however qualified this with an explanation in the box below.

[184]By seeking to address matters in this way the Tribunal consider that AH acted reasonably. The Tribunal did not see any basis upon which to draw any (12) The claimant was sent home by GC and then reported to the police and social services by SC even though the police corroborated the claimant’s version of events.

[185]The Tribunal found that GC informed the Claimant that her children’s welfare and safety should be her primary concern and that she was authorised to leave work immediately. GC advised her that she could not attend work to the detriment of her children’s welfare and safety. GC informed the Claimant that her actions were irresponsible and that she must go home immediately.

[186]GC’s actions were entirely reasonable and justified in the circumstances.

[187]SC was acting on a serious report from GC of a child protection issue. The Claimant had admitted to GC she had left her children home alone. No further investigation was necessary. SC’s actions in reporting the matter to the Police and social services were professional, reasonable and entirely justified.

[188]In any event it was not until after she had done so that the Police informed her that they were satisfied.

[189]The Tribunal did not see any basis upon which to draw any inference in the circumstances. (13) SC did not recall the notification of concern even when she found out from the police that the claimant’s children had not been left alone.

[190]The Tribunal considered that there was no obligation on SC to recall the notification of concern. By that stage it was a matter for the appropriate authorities.

[191]The Tribunal did not see any basis upon which to draw any inference in the circumstances. (14) SC did not speak to the claimant to obtain her version of events following her call with GC, prior to submitting the notification of concern and notifying the police and social services, notwithstanding what potentially could have been ‘catastrophic’ consequences for the claimant as a consequence of these steps.

[192]SC was acting on a serious report from GC of a child protection issue. The Claimant had admitted to GC she had left her children home alone. No further investigation was necessary. SC did not reasonably require to speak to the Claimant before acting. SC’s actions were professional, reasonable and entirely justified.

[193]The Tribunal did not see any basis upon which to draw any inference in the circumstances. (15) GC saying to the claimant “that’s what people like us do”.

[194]The Tribunal found that GC made no such comment. The Tribunal did not see any basis upon which to draw any inference in the circumstances. Direct Race Discrimination

[195]The Tribunal considered the actions set out in the agreed list which were said to be less favourable treatment on the grounds of her race by the Respondent. These acts were contained in Pages 121-122 and were 10 in number.

[196]The Tribunal noted that the Claimant relies upon a hypothetical white comparator. Special Leave(1) The respondent sending the claimant home on 19 April 2023 and placing her on special leave.

(2) The respondent cancelling all of the claimant’s shifts on 20 April 2023 and shutting down the claimant’s access to the ‘bank app’.

(3) The respondent informing the claimant on 12 May 2023 that she could no longer undertake any patient facing roles.

(4) The respondent informing the claimant on 12 May 2023 that she would have to work in the laundry and thereafter requiring the claimant to work in the laundry.

[197]The Tribunal considered and found that the Respondent did do all of the above but that the actions were appropriate and justified in the circumstances where the Claimant had been charged with assaulting a minor. The Respondent acted responsibly in removing the Claimant from patient facing roles. The Claimant worked in an environment where she was dealing with vulnerable adults who had mental health and learning difficulties.

[198]The actions of the Respondent were actions the Respondent would have taken against any employee in a patient facing role who had been charged with a similar offence.

[199]The Respondent’s actions in sourcing a non-patient facing role were entirely justified on the evidence.

[200]The Tribunal considered the actions of the Respondent were not “less favourable treatment” as a comparator in a patient facing role would have been treated the same in the circumstances.

[201]Further and in any event there was no credible evidence to suggest that the actions of the Respondent were in any way because of the Claimant’s race. The Claimant being ostracised (5) The claimant’s work colleagues ostracising the claimant on her return to work on 27 December 2023 and thereafter continuing to do so.

[202]The Tribunal found no credible or reliable evidence to support the vague and generalised assertion that the Claimant was ostracised by her work colleagues following her return to work on 27 December 2023. The Tribunal preferred and accepted the evidence of AH, AG and BM in this regard. By all accounts the Claimant was a difficult individual. AH in particular did her utmost to include and support the Claimant in the workplace. The toilet incident (6) The claimant’s work colleague on 25 March 2024 banging on the toilet cubicle door and demanding “what are you doing in there?”

[203]The Tribunal found that AG had chapped the toilet door lightly and said “Just checking you are ok”. Against the factual matrix found by the Tribunal that the Claimant had been in the toilet for in excess of 10 minutes, was on her phone, had work colleagues waiting to use the toilet, colleagues wondering where she was and the risks to health and safety working in the low secure environment this was an entirely reasonable enquiry by AG.

[204]AG’s actions did not constitute less favourable treatment as these were actions which would have been taken in respect of any comparator. AG’s action were entirely reasonable and appropriate.

[205]Further and in any event there was no credible evidence to suggest that the actions of AG were in any way because of the Claimant’s race. Transfer to another Ward (7) The respondent transferring the claimant to another ward without any proper consultation or notice on 03 May 2024.

[206]The Tribunal found that SC’s decision was made as a consequence and out of concern for the Claimant’s wellbeing as a temporary measure and whilst the Claimant considered the options discussed with her and her trade union representative at an earlier meeting. It was also against the backdrop whereby the Claimant had not responded to emails from SC chasing her on the options discussed and SC’s growing concern for the Claimant.

[207]This prompted an immediate response from the Claimant’s trade union representative and a discussion between SC and the Claimant that led to an agreement that the Claimant transfer to Rowanbank.

[208]The Tribunal considered and found that SC’s actions in communicating the transfer were actions that she would have taken in respect of any comparator. SC’s actions were entirely reasonable and justified.

[209]Further and in any event there was no credible evidence to suggest that the actions of SC were in any way because of the Claimant’s race. GC telling the Claimant to go home and care for her children on 27 May 2024 (8) The claimant’s line manager insisting that the claimant return home on 27 May 2024 to ‘care’ for her children.

[210]The Tribunal found that GC informed the Claimant that her children’s welfare and safety should be her primary concern and that she was authorised to leave work immediately. GC advised her that she could not attend work to the detriment of her children’s welfare and safety. GC informed the Claimant that her actions were irresponsible and that she must go home immediately.

[211]GC’s actions in the circumstances were entirely reasonable and justified. The Tribunal considered that a comparator would have been treated in the same manner. Accordingly there was no less favourable treatment.

[212]Further and in any event there was no credible evidence to suggest that the actions of GC were in any way because of the Claimant’s race. SC reporting the Claimant to the Police and PP (9) The claimant’s line manager (or another unknown employee of the respondent) informing the police and social services on 27 May 2024 that the claimant has left her children at home alone.

[213]The Tribunal found that SC did report the Claimant to the Police and PP. This also involved sending a Notice of Concern which involved social services.

[214]The Tribunal considered that a comparator would have been treated in the same manner. SC was acting on a serious report from GC of a child protection issue. The Claimant had admitted to GC she had left her children home alone. No further investigation was necessary. SC’s actions were professional, reasonable and entirely justified. Accordingly there was no less favourable treatment.

[215]Further and in any event there was no credible evidence to suggest that the actions of SC were in any way because of the Claimant’s race.

[216]The Tribunal found that, objectively considered, there were no facts or inferences to suggest any conduct which demonstrates or infers that the Claimant was treated differently from any comparator. (10) Constructive Dismissal

[217]The Tribunal note that the Parties have agreed that the Tribunal should determine whether the Respondent constructively dismissed the Claimant and, if so, whether this amounted to direct race discrimination.

[218]The Tribunal considered and found that the Claimant was not constructively dismissed as detailed below which findings are referred to and incorporated for the sake of brevity. Harassment related to Race

[219]The Claimant relied upon the same acts (1-10) mentioned above in consideration of the Direct Race Discrimination Claim in her claim of harassment related to race.

[220]The Tribunal has set out its findings with regard to these acts and that the actions of the Respondent were not related to race which are referred to and incorporated for the sake of brevity.

[221]The Respondent at all times acted in a reasonable and professional manner and treated the Claimant as they would have treated any comparator.

[222]The Tribunal note that the Parties have agreed that the Tribunal should determine whether the Respondent constructively dismissed the Claimant and, if so, whether this amounted to harassment related to the Claimant’s race.

[223]The Tribunal considered and found that the Claimant was not constructively dismissed as detailed below which findings are referred to and incorporated for the sake of brevity.

[224]The Claimant’s claims of harassment related to race are unsuccessful. Victimisation

[225]The Claimant appeared to be relying on Section 27(2)(d) which provides that alleging (whether or not expressly) that another person has contravened the EA 2010 is a protected act

[226]The Claimant asserts that the following were protected acts:(1) Protected act 1: email dated 25 March 2024 which the claimant sent to Angela Hamlyn, Adrian Leitch, Kirsteen Slavin and Sue Silva (344- 345).

(2) Protected act 2: Email dated 24 April 2024 which the claimant sent to Angela Hamlyn (352).

(3) Protected act 3: email dated 28 April 2024 which the claimant sent to Angela Hamlyn (363- 364).

(4) Protected act 4: the claimant raising issues relating to the discrimination meted out to her by Angela Hamlyn during the Teams meeting on 24 April 2024 (346 – 351).

[227]The Tribunal considered the content of each of the protected acts. Protected act 1

[228]The email of 25 March 2024 was issued by the Claimant principally in response to the toilet incident. The Claimant uses the terms harassment and bullying, being targeted by staff, being picked on and that she has experienced bullying, harassment, racism and discrimination from both staff and management. Other than the toilet incident itself she provided no detail of specific instances of such conduct.

[229]The Tribunal considered the cases of Fullah v Medical Research Council UKEAT 0586/12, Waters v Commissioner of Police of the Metropolis

[1997] IRLR 589

and the decision of the EAT in Ms M Kokomane v Boots Management Services Ltd

2025 EAT 3

[230]In order for a complaint to be a protected act it must meet the statutory form required by the EA 2010, in other words a complaint about something which, if proven, would be a contravention of the Act. That means a complaint in this case must be about race discrimination: which could be direct race discrimination or race harassment in the circumstances and, in meeting that definition, the protected act must be considered in the factual context in which it was made.

[231]Considering the context, it appeared to the Tribunal that the allegation relied on need not state explicitly that an act of discrimination has occurred. All that is required are that facts should be asserted which are capable in law of amounting to an act of discrimination.

[232]The Tribunal considered the content of the email and the context within which it was made. The Tribunal found that the content and context of the allegation against AG was not capable in law of amounting to an act of discrimination. There was no suggestion on the facts in the email that AG’s actions were motivated by the Claimant’s race.

[233]The remaining allegations were vague and generalised and were not capable in law of amounting to an act of discrimination. Protected act 2

[234]The email dated 24 April 2024 which the Claimant sent to AH on 24 April 2024. This email refers to the Claimant being followed and enquiring if there is a problem that she does not know of.

[235]The Tribunal considered the content of the email and the context within which it was made. The Tribunal found that the content and context of the email regarding the Claimant being allegedly followed was not capable in law of amounting to an act of discrimination. There was no suggestion on the facts in the email of actions being motivated by the Claimant’s race. Protected act 3

[236]The email of 28 April 2024 which the Claimant sent to AH. The email contains a reference at paragraph 6 to the Claimant telling AH about bullying and harassment she had to face working with AH and other staff. It is contained under the heading “Points to Look at For”.

[237]The Tribunal considered the content of the email and the context within which it was made. The Claimant does not make a complaint of discrimination. She makes a vague and generalised reference to alleged bullying and harassment. The Tribunal found that the content and context of the email was not capable in law of amounting to an act of discrimination. There was no suggestion on the facts in the email of actions being motivated by the Claimant’s race. Protected act 4

[238]The Claimant asserts that raising issues relating to the discrimination meted out to her by AH to SC during the Teams meeting on 24 April 2024 were a protected act.

[239]The Tribunal has found that the Claimant did not raise specific complaints of discrimination against AH or any other staff member at that meeting. Given that it has been established that no such complaint ere mad there can be no protected act.

[240]The Claimant then asserts that the Respondent did the following:a. On 3 May 2024 the Respondent transferred the Claimant to another Ward;

b. Constructively dismissed the Claimant on 7 July 2024; and

c. On 27 June 2024 AH provided a negative reference.

[241]The Tribunal is asked to determine that if the Respondent did a to c above then did the Respondent subject the Claimant to a detriment. If so, was it because the Claimant did a protected act.

[242]The Tribunal has already determined that there were no protected acts but for the sake of completeness consider and answer these questions. SC sending email of 3 May 2024 to the Claimant

[243]The Tribunal consider the actions of the Respondent (SC) on 3 May 2024 in communicating the transfer of the Claimant to another Ward were motivated out of concern for the Claimant’s wellbeing not by any of the alleged protected acts. SC had met with the Claimant and had discussed options for the Claimant with her trade union representative. These options included transfer out of Ward 5. The Claimant had failed to respond to SC’s request for her views on the options. The Claimant and her trade union representative both contacted SC on 3 May 2024 and agreed to a transfer to Rowanbank. Further the Claimant confirmed in an email of 6 May 224 that she wanted to move out of Ward 5.

[244]The Tribunal do not consider that the transfer to another Ward, objectively considered, was because of the Claimant having done any of the alleged protected acts. The Tribunal did not find any causal link between the alleged protected acts and the action taken on 3 May 2024. The alleged protected acts were not the real reason for issuing the email of 3 May 2024.

[245]The Claimant did, in fact, agree to a transfer to Rowanbank on 3 May 2024.

[246]Even if there had been a causal link the Tribunal found that objectively considered no reasonable employee would have considered the email communicating the transfer to have been a detriment in the circumstances (Shamoon v Chief Constable of the RUC

[2003] ICR 337

(HL).). Following discussion with SC the Claimant was not in fact transferred to another Ward on 3 May 2024 and agreed to a transfer to Rowanbank on that date.

[247]The Tribunal found that the Claimant was not constructively dismissed as discussed below. AH providing a negative reference

[248]There was no evidence before the Tribunal to suggest that the reference provided by AH on 27 June 2024 was in any way motivated by any of the alleged protected acts.

[249]The Tribunal preferred and accepted AH’s evidence that she genuinely wished to provide the Claimant with as good a reference as possible but that the reference should be accurate. She involved KS in the process and the preparation and content of the reference.

[250]The Tribunal found that the reference provided by AH was honestly and genuinely given. If anything AH answered some of the questions in the reference in such a way as to avoid making critical comments of the Claimant. One such example was the response to the Claimant’s suitability for the post on Page 450. AH had replied “No” however qualified this with an explanation in the box below.

[251]The Tribunal did not find any evidence of a causal link between the alleged protected acts and the contents of the reference.

[252]The Tribunal considered that the reference was negative and was no doubt detrimental to the Claimant’s application for the post.

[253]In conclusion, the Claimant’s claims of victimisation are unsuccessful. Time bar

[254]As the Tribunal found that the discrimination, harassment and victimisation claims were unsuccessful the issue of time bar was academic.

[255]The Claimant relied upon the acts (1 to 9) specified under the heading Constructive Dismissal at Pages 120-121. These were identical in terms to the acts the Tribunal was asked to determine in the Claimant’s Direct Discrimination and Harassment Claims. The Tribunal were being asked to consider whether or not the Respondent did the same acts (1-9) and if so, whether or not the acts constituted a repudiatory breach of the implied term of trust and confidence.

[256]The Tribunal’s findings in respect of whether or not the Respondent did these acts is narrated above in respect of the Direct Discrimination and Harassment Claims and relied upon by the Tribunal in respect of the claim of Constructive Dismissal for the sake of brevity.

[257]The Tribunal is then asked to determine whether or not these acts breached the implied term of trust and confidence. The Tribunal considered each of the acts objectively and answer that question in the negative. As discussed above (in the Claimant’s Direct Discrimination and Harassment Claims) the actions of the Respondent in so far as found to have occurred were entirely justified and reasonable in the circumstances. The Respondent did not behave in a manner that was calculated or likely to destroy or seriously damage trust and confidence.

[258]The Tribunal rejected both the Claimant’s submissions that the events of 27 May 2024 in and of themselves constituted a repudiatory breach and that, in the alternative, the acts from 19 April 2023 to 27 May 2024, taken together, and viewed objectively, amounted to a repudiatory breach of the implied term of trust and confidence.

[259]The Tribunal having found that there was no repudiatory breach of contract by the Respondent find that the claim of constructive dismissal is unsuccessful and is dismissed.