Case No 8001626/2024Venue GlasgowHearing 14, 17, 18, and 19 March (with Written Submissions on 26 March) 2025
Between
Ms A TullisClaimantIndigo Pipelines LtdRespondent
Before
Employment Judge R MackayMr N MacDougall, Advocate for respondentDate 20 May 2025
JUDGMENT
[1]The claimant’s claim for breach of contract fails and is dismissed.[2]The claimant’s claim of victimisation, contrary to Section 27 of the Equality Act 2010 (“the Equality Act”) fails and is dismissed.
REASONS
[1]The claimant was employed by Paisley Secretarial Services Ltd (trading as Allstaff). She was supplied by the agency to provide services to the respondent with effect from 14 March 2024. At that time, she remained an employee of the agency and it was accepted that was a contract worker of the respondent under Section 41 of the Equality Act.[2]The issues to be addressed at the hearing were agreed at a case management preliminary hearing which took place on 26 November 2024. At that time, the claimant withdrew certain of her claims such that two complaints remained.[3]The first is a claim for breach of contract. The claimant’s position is that she was offered and accepted (orally) a contract of employment with the respondent. Her position is that the respondent subsequently reneged on that contract by seeking to impose a lower salary.[4]The second claim brought by the claimant is one of victimisation on the grounds of the claimant’s race. She relies on colour; her father is African American, and her mother white British. The protected acts relied upon by the claimant are as follows:a. A conversation on 29 August 2024 with a colleague, Lindsay Kinsman, communicating the claimant’s “suspicion” that she had been subjected to unlawful race discrimination. She later amended her claim to include a similar conversation on 15 August 2024.b. A conversation on 29 August 2024 with Joanne Thompson, Head of HR. The claimant accepted that she made no explicit allegation or complaint of race discrimination and that she hoped to deal with matters “delicately” by simply asking about the reasons for her treatment.c. A conversation on 30 August 2024 with Amy Critchley, HR Adviser, alleging that the termination of the claimant’s engagement had entailed race discrimination.[5]It was alleged that the claimant’s line manager, Evelyn Scott, took the decision to dismiss the claimant along with Ms Thompson and the respondent’s CEO, Terry Dugdale. The claimant’s position was that all would have been aware that she had alleged race discrimination by way of the two alleged protected acts and that one or both were a significant cause of the detrimental treatment.[6]In relation to the third alleged protected act, the claimant accepted that it came after notice of termination so was not logically part of the reason for it. She did, however, allege other detriments. Further particulars of these were ordered.[7]The other detriments relied upon were:a. Character assassination and degradation. The first part of this concerns three aspects of the pleadings in the respondent’s ET3. The other part relates to the claimant having been characterised as thinking she was “worth more” than others by Ms Scott on a call on 30 August 2024 and Mr Dugdale in an email of 4 September 2024.b. Ostracization - the claimant’s position is that despite a previously good working relationship with Ms Kinsman, efforts to contact her following her dismissal were ignored by Ms Kinsman.[8]In advance of the hearing, parties agreed a joint bundle of documents extending to over 500 pages. The majority of these were not referred to in evidence. Moreover, the numbering of certain of the documents was illegible, leading to inconvenience both to the claimant and the tribunal. Mr MacDougall agreed to convey the dissatisfaction of the tribunal to the respondent’s solicitors, who collated the bundle.[9]Certain of the documents were transcripts prepared by the claimant of conversations she had with employees of the respondent which she (or in one case it was suggested her friend) had recorded without their knowledge or permission. With one exception, the tribunal did not listen to the recordings. One was played at the claimant's request to allow the tribunal to hear the tone of the conversation.[10]For the claimant, the tribunal heard evidence from the claimant herself, her partner (fiancé), her mother and a friend. The respondent led evidence from the five individuals referred to in the summary of issues set out above. Observations on the Evidence[11]A number of conflicts in evidence arose during the course of the hearing. Those which are material to the issues to be determined are identified and resolved in the Findings in Fact section which follows. In her approach to these, the claimant had a tendency to suggest that witnesses were giving false testimony and were fabricating documents. She suggested a conspiracy against her involving a range of employees up to the CEO.[12]The tribunal did not accept those more extreme allegations. In most cases, differences in evidence can be explained by different recollections or different perceptions. One example relates to the role performed by Ms Kinsman. The claimant suggested that it was false that she was a team leader - a term used by some of the respondent’s witnesses. Whilst it is correct to say that she did not have that job title, it is also correct that she was the most senior and experienced member of the team who was responsible for training and supervision of others including the claimant.[13]Similarly, in instances where the respondent’s witnesses had prepared notes of meetings, summarising what was said, any omissions from those, when compared to transcripts of calls prepared by the claimant, were presented by her as evidence of dishonesty as opposed to the witnesses simply noting key points from the meetings in a way never intended to be verbatim.[14]The respondent’s witnesses were generally credible and reliable. Those in HR, and CEO had very limited dealings with the claimant, or knowledge of her. She was seen as a temporary agency worker who could be released at any time. The suggestion that they were involved in a conspiracy against her is unconvincing. The evidence of Ms Kinsman is persuasive given that she worked closely with the claimant and was viewed by the claimant as a friend. Less reliance could be placed on the claimant’s witnesses in some respects. Each of them was asked to give evidence of the detail of work carried out by the claimant and the content of work telephone calls which took place. In most respects, it appeared to the tribunal that their evidence came from what the claimant told them.[15]In relation to the claimant’s mother the suggestion was that she was listening to the claimant’s work calls through a separate open personal line between her and the claimant. The tribunal found it somewhat implausible that such an arrangement could provide reliable evidence. In relation to the claimant’s partner, who was said to be in the same room as the claimant during certain work calls, he quite candidly stated in response to several questions that he could not be clear what was said, by whom, or when. The claimant’s friend gave more detailed accounts of what was said to have taken place on calls while she was in the same room as the claimant. She did not however take notes and gave evidence that she would “do her own thing” while the claimant was working. Findings in Fact[16]The respondent is a national independent network operator in the utility sector, providing gas and electricity to customers across the UK. It has approximately 40 employees.[17]The claimant was engaged through the Allstaff agency to provide services to the respondent with effect from 14 March 2024. She was employed by the agency and supplied to the respondent under a contract with the agency. She had the job title of administrator. She was paid at the rate of the then national minimum wage.[18]Her role initially involved inputting data onto a computer system. In time, she was trained by Ms Kinsman to carry out some more skilled tasks falling under the respondent’s asset engagement officer role. At that time, the team comprised Ms Kinsman and Ms Laura Collier. Ms Kinsman was the more experienced and was responsible for training the claimant. The line manager of the team was Ms Scott.[19]The claimant’s position was that by the time she left the respondent, she was providing broadly the same tasks as Ms Kinsman and was operating at the same level. The tribunal did not accept that evidence. The clear evidence of all of the respondent’s witnesses was that Ms Kinsman had skills and experience well beyond those of the claimant. That is to be expected in circumstances where she had been employed for a number of years in an industry in which the claimant had no previous experience. Moreover, the claimant herself accepted that there were aspects of the role in which she had yet to be trained, and attempts to persuade Ms Kinsman in cross examination that she worked on matters of comparable complexity were easily rebutted by Ms Kinsman.[20]The other asset engagement officer worked principally on a different part of the administrative process, but in terms of experience, was closer to the claimant, having been engaged in the same way as the claimant through the same agency before being offered a permanent position.[21]The claimant performed well in her role to the extent that in early May 2024, Ms Scott spoke to the claimant about the possibility of a permanent contract. She contacted the agency on 10 May to enquire what fee would be payable to the agency under the terms of business in the event that the respondent employed the claimant directly. The enquiry, and the calculation of the fee, was based on the role having a salary of £28,000. In an e-mail dated 19 May 2023 from the respondent to the agency, the role was said to be in the salary range of £25,000 to £28,000.[22]On 19 June 2024, following 12 weeks of engagement as an agency worker, the agency sought details of the remuneration of comparable employees as part of its obligations to ensure comparable remuneration for the claimant at that period of service. The respondent completed a form detailing £27,000 as the relevant figure.[23]Further discussions took place between the claimant and Ms Scott about a permanent position from May onwards.[24]In discussing a potential role, the claimant had said that she would accept £32,000 as a minimum. Ms Scott said that she would need approval from HR. In terms of the job title, this was to be asset engagement officer.[25]There was a conflict in the evidence between the two about what happened thereafter. The claimant's position is as follows: She met with Ms Scott on 27 June 2024 and was offered the role at a salary of £32,000. She was disappointed as she had hoped for more and asked for time to consider. She accepted the offer verbally on 8 July 2024 and was expecting a written contract to follow. On 9 August 2024 the salary offered was reduced to £27,500. In subsequent discussions with Ms Scott, there was no movement from the figure of £27,500.[26]Ms Scott's position is as follows: She sought approval to recruit the claimant at a salary of £32,000 but this was rejected and the salary she was able to offer was £27,500. She encouraged the claimant to consider the offer at that level and come back to her. If accepted, a written contract would follow.[27]The tribunal was satisfied that, whatever was actually said, the claimant was left with a clear understanding that she had been offered a salary of £32,000. Much of what happened subsequently flowed from the claimant’s dissatisfaction that the offer was then reduced to £27,000. In the transcript of a Teams call between the claimant and Ms Scott on 30 August 2024 Ms Scott appears to accept that she did make such an offer but that she was told by HR that it was beyond her budget. Ms Scott also accepted in cross examination that she may have done so. The tribunal was not satisfied, however, that the claimant verbally accepted an offer at £32,000, or indeed that the offer was sufficiently clear for her to do so. The claimant understood at the time that a written document would be required in order to constitute a contract. It was only some weeks later, after she researched the legal position, that she became aware of the possibility of a verbal contract.[28]No written contract was ever issued, and the claimant remained in the employment of the agency at the national minimum wage rate. She did not chase up a contract and did not raise a complaint or grievance about the matter at the time. The language of subsequent discussions which took place (narrated later in these Findings in Fact) also point to there being an ongoing discussion or negotiation.[29]Around this time, new technology and systems were introduced resulting in the time required to perform the asset engagement officer tasks being significantly reduced.[30]A meeting took place between the claimant and Ms Scott on 15 August 2024. The claimant was unhappy about the way she had been spoken to by a colleague in a different department. The colleague had said words to the effect that £30,000 was an insignificant sum of money. The claimant was aggrieved by this in the context of the reduction in the salary offered to her. HR became involved which resulted in the meeting of the claimant’s team and follow up discussions with the colleague concerned.[31]A meeting of all of the respondent’s workers took place on 29 August 2024 (described as a Town Hall). The purpose of the meeting was for the CEO to provide staff with a business update. As part of that, the CEO was critical of another company which he said had told its staff one thing before doing another. He was seeking to provide a contrast between that culture and the culture of the respondent. The claimant was upset by this as she felt that the reduction in her salary offer was a similar issue to that disavowed by the CEO.[32]Following the Town Hall, the claimant called Ms Kinsman. Unbeknownst to Ms Kinsman the call, or at least part of it, was recorded. It constitutes the first protected act relied upon by the claimant.[33]A conflict arose between the claimant and Ms Kinsman about what was said on the call. The claimant’s evidence is that she made allegations of race discrimination. The allegations centred around comments made by Ms Scott right from the start of her employment about her appearance and her hair and which she felt where related to her race and were inappropriate. They also included what the claimant described as micro-aggressions by another member of staff, including being described as “articulate” which she considered patronising towards her as a woman of colour and “passionate” which she felt was based on a stereotype used against people of colour.[34]Ms Kinsman's evidence was that no references to these or any other allegations of race discrimination were made.[35]It was accepted by both that a discussion took place about the claimant’s grievance related to the salary issue, the fact that she was unhappy that the salary offered had been reduced, and about what was said at the Town Hall. It is also accepted that the claimant was encouraged by Ms Kinsman to go directly to HR with her issue and to try to negotiate an increased salary.[36]The tribunal accepted Ms Kinsman's evidence on the content of the meeting as it relates to race. She was clear that had any allegations of race discrimination been made she would have remembered them. Moreover, the transcript of the call prepared by the claimant does not make any reference to race discrimination. It accords with Ms Kinsman's account. Furthermore, as noted below, when the claimant did approach HR there was no reference to race discrimination at that meeting. Had that been the basis of the claimant’s concerns, or the basis for her going to HR in the first place, it would be surprising if they were not mentioned. Although it is not necessary for the tribunal to determine whether the racial comments were made for the purposes of this decision, it is relevant to note that they were not referred to at any other time. It is notable too, that the claimant’s partner, on being questioned about whether the claimant had mentioned experiencing inappropriate racial comments, was unable to recall.[37]As noted above, the claimant amended her claim to suggest that a conversation similar to the one she alleged took place on 29 August 2024 also took place on 15 August 2024. Her evidence was that the same allegations of race discrimination were made at that meeting as she said were made at the later meeting. Ms Kinsman’s position was that she did not recall a conversation on that date and if a conversation did take place, there was no reference to race or allegations of race discrimination. The call as is related to the claimant's complaint about her offer of employment took place on 29 August 2024. Prompted by the Town Hall. Again, the tribunal accepted the account of Ms Kinsman. It was clear from her evidence and the evidence of the claimant herself that she had become friendly with and was supportive of the claimant, as illustrated by her advice to approach HR about the salary issue. The suggestion that she would wilfully ignore, or forget, serious allegations of race discrimination is unconvincing.[38]Ms Kinsman did not at any time suggest to anyone else in the respondent that the claimant had made allegations of discrimination based on her race or otherwise, whether arising from meetings on 15 or 29 August or otherwise.[39]Later on 29 August 2024, the claimant emailed Ms Scott to say that following the Town Hall, she wanted to give a heads up that she was going to have a one-on-one call with Ms Thompson (Head of HR) to discuss how she was feeling. Ms Scott replied to ask if there was a reason why the claimant felt she would like to speak to Ms Thompson and not her.[40]The claimant replied in the following terms: “My reasoning is just because (while I completely appreciate everything you've done to have my back and argue my case in the background) some of the things that have been said by [the CEO] and the team today make me feel like there are certain things I need to say directly in defence of myself. My frustration isn't with you, it's with the company, and specific business practices that [the CEO] himself referred to as “disgusting”. I'm happy to come to you with all my problems and frustrations, but in situations like this where you've done all you can and I still feel like I'm being ground down to dirt - isn't that precisely when I should be having a direct conversation with HR?” What's your take on it?”[41]Ms Scott was not pleased that the claimant had chosen to go above her head. She did not respond to the email.[42]The claimant had a Teams meeting with Ms Thompson in the afternoon of 29 August 2024. The conversation centred around the salary discussions over the permanent role and that Ms Scott had originally communicated a salary of £32,000, later reducing it to £27,500. She referred to the comments of the CEO at the Town Hall. The claimant compared herself to Ms Kinsman who she understood was on a higher salary but was performing the same role. She contrasted her position with that of Ms Collier, the third asset engagement officer, who she felt was performing a lesser role.[43]Ms Thompson advised the claimant that Ms Scott was not authorised to agree or approve a higher salary than that approved by her and that the market rate for the role was £27,500. She distinguished the role of Ms Kinsman with reference to her higher levels of business and industry experience, responsibility and technical ability. The claimant asked if they could compromise on a salary of £30,000. Ms Thompson confirmed that was not possible.[44]The meeting with Ms Thompson is the second protected act relied upon by the claimant. She accepts that she did not mention race or make any allegation of race discrimination during the meeting. That is also the position of Ms Thompson and there is nothing in the evidence to suggest otherwise.[45]Following the meeting, the claimant wrote to Ms Scott in the following terms: “[Ms Thompson] and I had a really good chat, I'm so glad we clarified what's been misunderstood. [Ms Thompson] was under the impression that I'm doing the same work as [Ms Collier] and not [Ms Kinsman]. She expressed that she didn't know I was brought on to help [Ms Thompson] with her workload, she thought I was working directly with [Ms Collier] on the things she handles, which is a different job description and pay level. Now that it's been cleared up, I think there's hope that we may find at least a temporary solution until the exact job descriptions and differences can be clarified 100%. Thank you for bearing with me through this process, I knew something wasn't being fully understood, I'm just glad we've now figured out what it was!”[46]Ms Thompson spoke to Ms Scott following the meeting with the claimant. A discussion took place regarding the salary expectations and how the misalignment had occurred. The position of Ms Scott was that the claimant was not offered a contract, and discussions never moved past negotiation.[47]The conversation moved on to discuss the structure of the team and the requirements of the business. Ms Scott advised that the workload in the team had started to decline due to the implementation of efficiencies and new initiatives such as the introduction of a new calculator resulting in tasks being transferred to various other teams. They discussed whether in light of these changes, the claimant’s temporary role was still required. They agreed at that meeting that it was not, and that Ms Scott should speak to the claimant about this.[48]A Teams call took place between Ms Scott and the claimant the following day (Friday 30 August). At the request of the claimant, the tribunal listened to her recording of the call. Ms Scott had complained that the claimant behaved unprofessionally during the meeting and had used an aggressive tone. The claimant disputed this. Although it is not strictly relevant to the issues to be determined, from the perspective of the tribunal, the claimant was clearly aggrieved at what was being said to her and did use a raised voice. She also repeatedly interrupted and spoke over Ms Scott. Miss Scott also interrupted the claimant although to a lesser degree given that the majority of the conversation came from the claimant’s side.[49]In terms of the content of the meeting, Ms Scott advised the claimant that there was no longer a need for a permanent position and that her agency appointment was being brought to an end. The claimant challenged the analysis that there was a reduced need for work and questioned what had happened in the previous three days. She questioned whether her having gone to HR was the reason for the change in position. The discussion also took place around the background to the role offered and whether a verbal contract was in place, and whether the claimant was performing the same role as Ms Kinsman. Little or no agreement was reached on the call. It concluded with an offer from Ms Scott for the claimant to have a notice period of a few weeks before leaving. She was asked to speak to Ms Thompson on the morning of the following Monday if she wished to take up that option. Otherwise, the intention of Ms Scott, and the understanding of the claimant, was that her engagement was being terminated that day.[50]Certain comments were made on the call about the claimant seeing herself as being “worth more”. This is one of the detriments relied upon by the claimant. The tribunal was satisfied that the reference was to the role being performed, in the sense that the claimant (wrongly in the view of the respondent) performed the same function, to the same level, as Ms Kinsman.[51]Following the call, the claimant sent a Teams message to Ms Kinsman asking her to call back. She responded to say that she was busy with her son but would call later. The claimant sent to further message later that afternoon to the effect that she would not bother her with a call after hours and referring to having been “let go”.[52]At around 4:30 that same day, the claimant called Ms Thompson but was unable to get through. She spoke instead to Ms Thompson's direct report in HR, Ms Critchley. This call is relied upon by the claimant as her third protected act. Again, it was covertly recorded.[53]The claimant opened the call by referring to what she described as contract negotiations which had been ongoing for several months. She narrated her account of the change to the salary figures discussed. She went on to describe how she felt she was not receiving equal pay when compared against Ms Kinsman. She highlighted the fact that there was no difference in sex, but stated that “as a woman of colour” she felt like she was being told that she should not speak up and she should simply get on with her job. She described not being willing to roll over and take less money for the same job as being the definition of discrimination.[54]Ms Critchley’s had no knowledge of the background issues and principally played a listening role. She confirmed that she would need to investigate the issues and this we need to start on Monday given the lateness of the day. She advised the claimant that she did not need to log on first thing on the Monday and that she would get back to her. Her evidence was that she was concerned by the “woman of colour” comment.[55]Ms Critchley reported the call to Ms Thompson. The matter was taken out of her hands and was dealt with by Ms Thompson.[56]The following Monday, the claimant did not log on to her work computer. At approximately 10:00 am her access was removed by IT on the instruction of Ms Thompson. Her position was that the claimant’s agency contract had been terminated with immediate effect, and that by not confirming that she wished to take up Ms Scott’s offer of working a few weeks’ notice, the arrangement was at an end. She stated in her evidence that with the benefit of hindsight it would have been preferable to check with the claimant.[57]By e-mail later that morning from the claimant to Ms Thompson, the claimant raised a formal grievance. She referred to what she described as the “gross mishandling of [her] contract offer”. She described herself as having been “victimised for defending herself against illegal business practices after being verbally offered a contract that was accepted and therefore complete…”. She copied the CEO, Mr Dugdale and sent him a direct message on LinkedIn. She did not refer to her race or race discrimination in these communications.[58]Mr Dugdale had a telephone conversation with the claimant on 2 September 2024. The conversation was again recorded by the claimant without permission. The claimant did not mention race, or alleged race discrimination during the call. She questioned whether it was still possible to agree a contract by meeting in the middle at £30,000. Mr Dugdale responded to the claimant by letter dated 4 September 2024, effectively rebutting her allegations.[59]In the letter, Mr Dugdale noted that in response to a question as to what the claimant saw as a reasonable outcome, the claimant would consider a role at £30,000 as she felt she was “worth more”. He also referred to her as having been open and clear that she was keen to continue working with the respondent. The comment about being worth more is one of the detriments relied upon by the claimant.[60]The claimant sent Ms Kinsman a further message on 2 September but did not receive a response. Miss Scott had instructed Ms Kinsman not to do so as she did not want her to become involved. Ms Kinsman was not told of the content of the call with Ms Critchley.[61]A further exchange took place between the claimant and Mr Dugdale on 5 September 2024 being the last contact between the parties. Relevant Law Breach of Contract
Relevant Law
[62]A contract is defined at para 2.7 of the Scottish Law Commission: Report on Review of Contract Law: Formation, Interpretation, Remedies for Breach, and Penalty Clauses (Scot Law Com No 252) (March 2018) as: "…an agreement between parties which they intend to have legal effect, which contains all the essentials of the kind of contract they are seeking to conclude, and which is sufficiently certain in its content to be legally enforceable."[63]A contract can arise from a verbal offer and acceptance. Parties may, however, agree that such a contract will not be binding until there is a written agreement (WS Karoulias SA v Drambuie Liqueur Co Ltd (No 2) 2005 SLT 813).[64]There must accordingly be:(i) “agreement on essential terms”;(ii) an intention to create legal relations; and(iii) certainty of terms (para 4.6 of the Report).[65]In general, the essential terms are: the parties to the agreement, the subjectmatter of the contract, and the payment or the mechanism for payment arrangements. In Avintair Ltd v Ryder Airline Services Ltd 1994 SC 270, where one party had provided services without agreement having been reached on remuneration, the Inner House of the Court of Session held that there was an enforceable contract and an implied term that a reasonable sum be paid. The court stated there was a distinction between a case where the alleged contract had yet to be performed and the case where services had been rendered.[66]There must be an intention by the parties to create a legally binding arrangement. Where no such intention can be attributed to the parties, there is no contract. The courts or tribunals should take an objective approach in deciding whether the parties intended to enter into a contract (Donald McArthy Trading Pte Ltd v Ireland Alloys Ltd [2020] 11 WLUK 471). At para 4.1.2, the SLC Report provides: "The intention to create legal relations is objectively determined and does not depend on the existence of an actual intention of the parties (although an express declaration of non-intention to create legal relations can be effective)."[67]Morgan Utilities Ltd v Scottish Water Solutions Ltd [2011] CSOH 112 provides a summary on the approach to be adopted in deciding whether there was an intention to enter into a contract. This involves: 68.a. Deciding whether the parties have manifested an intention to be immediately bound "there and then".b. Adopting an objective approach to intention and ask "what would reasonable and honest [people] in the position of the parties and having their shared knowledge of the surrounding circumstances have understood by the discussion which they had or the communications which passed between them.c. Considering events as they unfolded to take an objective view of the position at the time the agreement was concluded, and also look at the parties' behaviour after the agreement.d. Adopting an entirely neutral approach in deciding whether the parties intended to enter into a contract.[69]Uncertainty of terms can arise when the words used in the contract are too vague in meaning, the agreement is incurably incomplete or parts of the agreement are mutually contradictory (McBryde, The Law of Contract in Scotland, para 5.23). Victimisation[70]Section 27 of the Equality Act sets out the circumstances in which victimisation may occur:(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.(3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith…[71]Allegations of a contravention of the Equality Act must be sufficiently clear in order to amount to a protected act. The EAT held in Beneviste v Kingston University UKEAT/0393/05 that merely making a criticism, grievance or complaint without suggesting that it was in some sense an allegation of discrimination or otherwise a contravention of discrimination legislation was not sufficient to amount to a protected act.[72]A similar conclusion was reached in Durrani v London Borough of Ealing UKEAT/0454/12 where the claimant referred to being "discriminated against" and suffering detriment during his employment. The EAT accepted the finding that he had not used the word "discriminated" in any sense other than that he had been unfairly treated generally, not specifically because of race.[73]Where an allegation is found not to be explicit, a tribunal is required to assess the evidence including whether the employee may be the type of person likely to express themselves cautiously (Chalmers v Airpoint Ltd UKEATS/0013/19).[74]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). However, the protected act must be more than simply causative of the treatment (in the "but for" sense)(Chief Constable of Greater Manchester Police v Bailey [2017] EWCA Civ 425).[75]In considering causation, it is also necessary for the tribunal to establish that person A knew about the protected act in question (Peninsula Business Services Ltd v Baker UKEAT/0241/16).[76]The test for detriment in victimisation is: "Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment?" (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337).[77]The Court of Appeal in Heath v Commissioner of Police for the Metropolis [2005] IRLR 270 made it clear that tribunal discrimination proceedings are judicial proceedings for the purposes of judicial proceedings immunity this means that anything said or done in judicial proceedings, including in pleadings, cannot amount to victimisation (or discrimination more generally). Submissions[78]Following the conclusion of the evidence, there was insufficient time for the tribunal to hear submissions. Parties were asked to prepare written submissions within seven days. To assist the claimant, Mr MacDougall helpfully provided her with a summary of the relevant law as it relates to the claims brought. The tribunal is grateful to parties for the care they have taken in preparing their submissions and has considered them in reaching its decision. Although unrepresented, it is clear from the claimant’s submissions and from her approach to the hearing itself that she has developed a clear and detailed understanding of the relevant legal principles.[79]In order to determine whether a breach of contract has occurred, it is necessary to establish whether a contract was entered into. It is accepted that there was no written contract. The question for the tribunal was whether the discussions between the claimant and Ms Scott on behalf of the respondent were sufficient to give rise to a verbal contract.[80]It is accepted that discussions took place over a salary for a role. As set out above, the tribunal is satisfied that Ms Scott made an offer to the claimant at a salary of £32,000. It may be that she did not have authority to do so, and that is the position of the respondent’s head of HR, but the claimant was entitled to treat the offer as being authorised. As noted above, however, the tribunal was not satisfied that the claimant accepted that offer. Following receipt of the offer, the claimant anticipated receiving a written contract and believed at the time that written document would be required in order to constitute a contract. That was also the view of Ms Scott. Much of the language used by the claimant and her witnesses in the context of the lower salary referred to an offer having been reduced, rather than a contract having been breached. Even as late as the claimant’s email of 2 September 2024, she is still referring to mishandling of her contract “offer”. In her conversation with Ms Critchley, she referred to contract “negotiations” having gone on for several months. These do not point to there having been a concluded bargain.[81]The absence of written terms also feeds into the question as to whether the offer made was sufficiently detailed to give rise to agreement on essential terms or certainty as to what those terms were. Aside from salary, and the job title, there was a distinct lack of certainty or agreement. In an employment contract the detail of terms is typically set out in a written document, or evidenced by custom and practice. In this case, the only component of the contract negotiated was salary. There was no agreement on any other terms of the relationship. Even in relation to the role itself, the claimant’s email to Ms Scott on 20 August point to there being a need to agree exact job descriptions and the need to clarify “differences”, Highlighting the lack of certainty at that time.[82]Even if there had been agreement on salary, therefore, there was no agreement on other essential terms so as to give rise to an employment contract. It is notable too, that following what the claimant described as an agreement, her position did not change in terms of employing entity or salary. It is not possible, therefore, to look to a period of performance to Infer that agreement had been reached or to determine what that agreement was.[83]Considering also the intention of the parties, given that both saw the introduction of a written document as being essential, it cannot be said that they had the intention to be bound there and then. It is notable too that had the claimant believed a binding contract was in place, she did not question her continuing status as an agency worker.[84]For those reasons, the tribunal concluded that no contract employment was formed. The claim for breach of contract must, therefore, fail. Victimisation[85]The first stage in deciding this claim requires an assessment as to whether the claimant has done a protected act. If there is no protected act, the claim cannot succeed. The tribunal considered each of the three protected acts relied upon by the claimant in turn. In each case, she is relying on section 27(2)(d), that is to say that she made allegations of contraventions of the Equality Act.[86]In relation to the first, the conversation or conversations with Ms Kinsman, The tribunal is not satisfied that a conversation capable of amounting to a protected act took place on 15 August 2024. As set out in the Findings in Fact it accepted the evidence of Ms Kinsman that no conversation took place on that date at which there was any discussion of the claimant having made an allegation of any contravention of the Equality Act.[87]It is accepted the claimant had a conversation with Ms Kinsman on 29 August 2024 during which she complained about various things. The question for the tribunal is whether the issues she raised could amount to a protected act, recognising that an allegation need not be express. A sharp conflict of evidence arose between the claimant and Ms Kinsman. If the claimant was right, and had disclosed range of behaviours which she characterised as amounting to race discrimination, she would clearly satisfy the test. For the reasons set out above, however, the tribunal preferred the evidence of Ms Kinsman. Whilst the claimant did express dissatisfaction about the way in which her contract negotiations had taken place, she did not allude either expressly or indirectly to race having been a factor. In this regard, it is relevant to consider he guidance of the EAT in Beneviste and Durrani. The complaint being made by the claimant focused on what she saw as the unfairness offering a contract at a particular salary and then reducing the offer. She did not even (unlike in Durrani) use the word discrimination, far less relate anything to her race. Looking at the wider context there was no evidence of any issues relating to race or anything connected to the claimant’s race which might allow an inference to be drawn[88]The tribunal considered whether the claimant was someone who might be likely to express herself cautiously. The opposite is true. During her short period of engagement as an agency worker, she showed herself willing to raise complaints and grievances to the highest level. Moreover, as noted, she is willing to make serious allegations of dishonesty and conspiracy in the context of these proceedings.[89]The claim as it relates to the first protected act therefore fails at the first stage.[90]In relation to the second protected act alleged, the conversation with Ms Thompson on 29 August 2024, the tribunal again considered whether this met this statutory definition. As noted above, the claimant conceded that she did not make any reference to race or discrimination during the call. Her position was that having made reference to a differential in the pay offered to her and the salary of Ms Kinsman, it was sufficiently clear that she was making an allegation of a breach of the Equality Act.[91]Absent an express reference to race, it is difficult to envisage how it could reasonably be taken from the claimant’s complaint that she was alluding to a claim that the differential was due to race. The primary focus of the complaint was what the claimant saw as the unfairness in reducing the salary offered. Her secondary point was an attempt to justify the higher salary with reference to her colleague, and the roles performed by them both. She did so in a way which suggested a general sense of unfairness, and in an attempt to continue her salary negotiations, as opposed to making an allegation of a breach of the Equality Act. Her reference to Ms Kinsman and Ms Collier was intended to support her argument that she was doing a similar role to one rather than the other with a view to clearing up what she saw as a misunderstanding. Again, looking at the wider context, no references to race or race discrimination had been made which might have caused Ms Thompson to conclude that the claimant was making an allegation of race discrimination.[92]A further difficulty with the claimant’s argument is the content of the e-mail exchanges between her and Ms Scott on the same day. She describes having had pretty good chat, having cleared up the misunderstanding and looks forward to agreeing a future working relationship. Those comments sit uncomfortably with the suggestion that the meeting in fact constituted (or should be interpreted as) an allegation against Ms Scott of race discrimination.[93]The claims it relates to the second protected act, therefore, also fails at the first stage.[94]The tribunal went on to consider the third alleged protected act, the claimant’s conversation with Ms Critchley on 30 August 2024. The focus of this call was different. The claimant expressly referred to discrimination. She described not receiving equal pay when compared with Ms Kinsman and made reference to being a woman of colour in this context. Considering the authorities referred to above, the tribunal was satisfied that the comments made by the claimant were sufficiently clear as to amount to an allegation of a breach of the Equality Act. Ms Critchley herself was concerned by the comments and clearly saw the reference to the claimant's being a woman of colour as a serious matter which required to be investigated. The conversation therefore amounts to a protected act.[95]In relation to this protected act, therefore, the tribunal went on to consider whether any of the detriments relied upon by the claimant were carried out because the claimant had done the act.[96]Two of them predated the protected act and can therefore be excluded. These are the dismissal itself, and the comments attributed to Ms Scott on her call with claimant on 30 August 2024.[97]Those which post date the protected act are:(i) the alleged ostracization by Ms Kinsman;(ii) the comment by Mr Dugdale in his letter of 4 September 2024 and(iii) three aspects of the respondent’s pleadings to which the claimant takes exception.[98]In relation to the first, the alleged ostracization, the claimant was clear in her evidence that this was directed towards Ms Kinsman alone. Although the claimant referred to a failure by Ms Kinsman to respond to messages on 30 August 2024 and 2 September 2024, it is only the failure on 2 September 2024 that is relevant as the earlier request predated the third protected act (the call with Ms Critchley having come later).[99]The evidence was clear that Ms Kinsman was told not to respond. That was her reason for doing so, and there was no evidence to suggest that she had been made aware of the protected act or the content of the call. Whilst ignoring a call from a colleague who has lost their job might well be a detriment, the lack of knowledge of Ms Kinsman means that there is no causal link between the act and the detriment. This claim, accordingly, fails.[100]Turning to the comment in Mr Dugdale's letter, the questions are whether it amounts to a detriment, and if so, whether it was made because the claimant did the protected act. Dealing with the first question, the tribunal considered the test set out in Shamoon. The context of the comment is that the claimant was arguing that, as she saw it, the role she was performing was worth more than the salary being offered. The negative connotation, which the claimant suggests, is that a comment was being made about her personal worth as opposed to the value of the role. Whilst on one view many would not see that distinction, it is clear that from the perspective of the claimant she personally found the comment objectionable and that was a perspective which a reasonable person might have (even if many would not). It is, therefore, a detriment.[101]Turning to the question of causation, the tribunal considered what the reason for making the comment was, and whether consciously or unconsciously it was the protected act. In making the comment, Mr Dugdale is purporting to summarise what the claimant had said in seeking to negotiate higher salary for a role. The claimant’s position was that she was being offered the same role as Ms Kinsman and should therefore be paid at a similar level. Mr Dugdale is, therefore, commenting on those negotiations and there is nothing to indicate that his phraseology was in any way influenced by the protected act. This point is reinforced when considering that a similar comment was made by Ms Scott before the protected act, and was being repeated by Mr Dugdale in the context of a grievance investigation in which he relied on the evidence of Ms Scott, in this case mirrored her wording. There being no causal link between the protected act and the detriment, this claim, accordingly, fails.[102]The final element of the victimisation claim relates to three aspects of the respondent’s pleadings before this tribunal. Two of these relate to the claimant’s experience and the level of training required compared to others. The third is a pleading of making allegations in bad faith. Other than pointing to her further particulars of claim and confirming that these were the detriments, no other evidence was led on this part of the claim. To the extent that they are still live before the tribunal, however, and without considering even the question of detriment, it is clear that this part of the claim falls clearly under judicial proceedings immunity. As such, it is not competent for the claimant to pursue this aspect of the claim, and it must necessarily fail.[103]For these reasons each of the claims fail and are dismissed. _