Miss V Abbas v ISS Facility Services Ltd: 8001678/2024 and 8002189/2024

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 8001678/2024, 8002189/2024

Venue Glasgow

Hearing 13, 14, 15 and 16 May 2025

Between

Miss V AbbasClaimant

ISS Facility Services LimitedRespondent

Before

Employment Judge M Whitcombe

Date 11 June 2025

JUDGMENT

The judgment of the Tribunal is as follows.(1) By consent, this hearing was confined to issues of liability only.

(2) The complaint of constructive unfair dismissal is not well-founded.

(3) The allegations of victimisation contrary to section 27 of the Equality Act 2010 are not well-founded.

(4) The allegations of direct race discrimination contrary to section 13 of the Equality Act 2010 are not well-founded.

(5) Therefore, all of the complaints contained in both of the claim forms are dismissed.

REASONS

[1]Both sides preferred a reserved judgment and written reasons to an oral judgment. I would like to record my thanks to the claimant and to the respondent’s legal team for the helpful and constructive way in which this case was litigated. The drafting, updating and agreement of key lists and summaries will have involved much work on both sides. Mr Arnold was also scrupulously careful to ensure that the claimant had a summary of his suggested key legal principles before she prepared her own submissions. That ensured fairness and efficiency and was exactly what the overriding objective required.

[2]The respondent is part of the ISS group and provides facilities management services. The claimant was formerly employed by the respondent as a security officer from 29 January 2019 (working her first shift on 14 February 2019) until her resignation on 4 weeks’ notice on 13 October 2024. That resignation took effect on 12 November 2024. The claimant normally worked night shifts at the premises of Virgin Media O2 (“VMO2”) at Tannochside Park, Uddingston. The claimant’s last shift was on 22 May 2024, after which she was certified unfit to work for the rest of her employment including the notice period.

Issues

[3]The parties had agreed a list of issues for determination. It evolved slightly during the hearing. Some of the original allegations were abandoned, limited or refocussed. Very helpfully, the respondent updated the list of issues to reflect those changes. Equally helpfully, the claimant took time to confirm that the updated list of issues fully and accurately reflected her case. The final version of the list of issues is attached to these reasons as an appendix.

[4]In brief summary, the issues included the following.a. Five potential jurisdictional issues.

b. A complaint of unfair constructive dismissal based on the individual or cumulative effect on the implied term of trust and confidence of 21 factual allegations, potentially raising 5 additional constructive dismissal issues.

c. A complaint of victimisation contrary to section 27 of the Equality Act 2010. It is common ground that the bringing of claim number 8000146/2023 (heard between 16 and 19 October 2023 with judgment received by the respondent on 11 December 2023) was a protected act as defined by section 27(2)(d) EqA 2010. The claimant relies on 16 factual allegations as detriments to which she was allegedly subjected because of that protected act.

d. A complaint of direct race discrimination contrary to section 13 of the Equality Act 2010, based on 10 factual allegations. The claimant alleges that each of them amounted to less favourable treatment because of her Asian ethnicity.

e. The respondent also argued that some of the allegations fell within what is known as the rule in Henderson v Henderson in England and Wales, which is also an aspect of the wider doctrine of res judicata in Scotland. The argument is that some of the allegations could and should have been brought in the proceedings issued on 2 April 2023 with case number 8000146/2023. Liability split from remedy

[5]This hearing was confined to issues of liability only. That order was made by consent at the start of the hearing, in circumstances where the claimant had made very late disclosure of a report from a consultant forensic psychiatrist on which she wished to rely for the purposes of her arguments on remedy. Four problems arose. The first was the lateness of that evidence. The second was the need for proper management of expert evidence in accordance with the principles in De Keyser v Wilson

[2001] IRLR 324

, EAT. The third was the fact that the respondent might well wish to obtain its own similar evidence. The fourth was that it would be difficult for any expert witness to consider the correct allegations and their causative impact before it was known which, if any, the Tribunal found to be established on the facts and also a breach of the Equality Act 2010.

Evidence

[6]All the oral evidence was given on oath or affirmation and the witnesses were cross-examined. Witness statements were not used and evidence in chief was entirely oral. I heard from the following witnesses in the following order:a. Miss Vaneeza Abbas, the claimant;

b. Mr Jonathon Williams, the respondent’s Regional Security Manager;

c. Ms Gwen MacKenzie, now the respondent’s Head of Security but at the relevant time Key Account Manager Infrastructure, who heard the claimant’s grievance on 27 April 2022;

d. Mr Derek Dunn, the respondent’s Security Supervisor at the VMO2 Tannochside site.

e. Mr John Atherton, the respondent’s Regional Technical Operations Manager for sites including VMO2 Tannochside, with responsibility for engineering services.

f. Mr Mark Wills, the respondent’s Head of Security and Retail for VMO2 sites, including Tannochside.

[7]The claimant was not a credible witness. Cross-examination revealed that her evidence regarding the cause of certain events was sometimes no more than speculation, unsupported by the objective facts or reasonable inferences drawn from those facts. One example concerned the way in which intruder alarms had allegedly been activated, another was the suggestion that a fire alarm had been activated deliberately by two of the respondent’s employees. The claimant’s evidence regarding the accident and injury allegedly suffered in the course of her duties was fundamentally contradicted by high quality CCTV evidence. Her evidence in chief at this hearing was also inconsistent in important respects with the account that she had given when the respondent investigated the accident. The claimant made no concessions when shown that CCTV evidence and continued to insist that an accident had occurred and that it had occurred in a particular way, despite obviously contradictory video recordings. While the claimant’s oral evidence was certainly firm and given with conviction, I must record that I did not feel able to trust it. Several of her allegations were made on the basis of little more than conviction alone.

[8]In contrast, I found all the respondent’s witnesses to be cogent, persuasive and credible. I did not detect any hint of exaggeration, inconsistency or rehearsal. The essential features of their oral evidence were not contradicted by any written material, and they did not contradict themselves or each other either. I therefore preferred the evidence of the respondent’s witnesses to that of the claimant where they conflicted. It was simply much more believable.

[9]I was also provided with a joint file of relevant documents running to 1288 pages. By no means all those pages were referred to in evidence. A small number of documents were added during the hearing.

[10]The parties also produced a statement of agreed facts.

Relevant facts

[11]This judgment is based on the following facts. The starting point was a helpful statement of agreed facts. As the hearing proceeded, it became clear that other facts were either agreed or undisputed. Where facts were disputed, I made my findings on the balance of probabilities, in other words the “more likely than not” basis applicable to almost all civil litigation. If I found that a fact was more likely to be true than untrue, then for the purposes of this judgment it was deemed to be true. The converse also applied. Working arrangements

[12]The claimant was permanently assigned to work at VMO2’s Tannochside site, which is attended as necessary by VMO2 engineers and contractors. The respondent’s security supervisor at that location is Derek Dunn, who has worked there for around 20 years. The security team are managed by a regional security manager who looks after a portfolio of sites, aims to attend site monthly and is available by email and phone. Jonathon Williams was the regional manager from June 2021 until about June 2024, after which Tim Atkinson took over as regional manager.

[13]There are two permanent security officers including the claimant. There are also three relief officers who could either be employees of the respondent or agency workers. The security team work alone for 12 hour shifts and see each other only at changeover time, typically 0600 and 1800. The claimant usually worked night shifts.

[14]All officers are required to complete entries in the Daily Occurrence Book. Entries should include an initial integrity check, alarm sets/unsets and omissions, alarm activations, patrols completed, security management visits and calls, engineer, contractor and cleaning attendance at site, lone working check calls, all occurrences and incidents and testing of fire doors and forced doors.

[15]The respondent operates a 24-hour, national, company-wide Security Operations Centre in Stoke and Bath Road Security Control Centre and helpdesk. The latter is available 24 hours a day and has specific responsibility for VMO2 sites. The Bath Road Security Control Centre employees can monitor the CCTV at site and are responsible for ad hoc welfare check calls, out of hours communications and escalations.

[16]A cleaner employed by a different company in the ISS Group attends site for 2 hours, 3-5 times a week. The start time could vary but the cleaner would usually work in the evenings and generally started work at around 1800. The final cleaner working on site before the claimant commenced sick leave in 2024 would arrive at various times between 1800 and 2100 in April and May 2024. 24 June 2019, “does not want to get wet” remark made by Derek Dunn

[17]In an email of 24 June 2019 Derek Dunn said to Jamie Morrall (then the regional manager) “Vaneesa asked me this morning if it would be possible for ISS Security to provide a large umbrella as she does not like getting wet while doing the external patrol.” There is no dispute that those words were used. There is also no dispute that the claimant had indeed requested an umbrella, as she accepted in cross-examination. There was no evidence that any other employee had ever made a similar request, so I am not able to make any findings as to how they were treated. Mr Dunn used the additional words, “as she does not like getting wet…” because he thought that was the reason why anyone would want to use an umbrella. Further, he was correct so far as the claimant was concerned. The claimant accepted in crossexamination that she had asked for an umbrella because she did not like getting wet while she did external patrols, so Mr Dunn’s assumption was accurate too.

[18]I do not share the claimant’s view, expressed in the attachment to the claim form, that those words were “disgraceful” or that they amounted to an insult in that context. On the contrary, I find that they were innocuous words which fairly summarised the position. Lack of support from Mr Williams, Ms McKenzie and Mr Atherton in and after March 2022, disbelieving the claimant and accepting Mr Shah’s account of the incident

[19]Findings of fact on these matters have already been made by the Employment Tribunal in case number 8000146/2023. Neither side sought to challenge them at this hearing. The claimant reported an incident in which she was allegedly sexually harassed by her colleague Mr Shah at shift changeover on 27 March 2022. The allegation was that Mr Shah had held his private parts and showed the claimant through his trousers.

[20]The involvement and reaction of managers was as follows. I will begin with Mr Williams. The claimant sent an email of complaint at 22:43 later the same evening, giving her account of what had happened. Mr Williams had not been at work or on duty that Sunday night but had checked his emails one final time before going to bed. Mr Williams responded to the claimant at 23:36 saying that he was sorry that the claimant had had an experience at work which had made her feel distressed. He went on to state that he hoped she felt secure and safe. He said that there was no need for her to venture outside the building for the remainder of her shift. He also signposted the availability of further support from the Bath Road control team if required during the rest of the shift and gave their number. Finally, Mr Williams arranged to speak to the claimant at the start of her shift the following day but also gave his own phone number in case the claimant wished to call him “tomorrow anytime”. The next day Mr Williams spoke to the claimant as promised and followed up with an email thanking her for speaking to him, undertaking to escalate the issue and to arrange for the claimant to speak to a female ISS colleague about the matter in the near future. He undertook to keep in touch by email and to update the claimant when a Teams meeting could be arranged. Mr Williams also spoke to the central scheduling team and arranged for Mr Shah not to work at the site at times which might lead to interactions with the claimant.

[21]The claimant accepted in cross-examination that both of Mr Williams’ emails were supportive. She nevertheless argued that they were just emails, and that it was not obvious from them that Mr Williams took her allegation seriously. I do not share that view. I find that by his actions as well as his words Mr Williams demonstrated genuine, appropriate and meaningful support for the claimant and that he took her allegation seriously.

[22]The first stage of the grievance process was chaired by Ms MacKenzie on 27 April 2022. The notes erroneously describe it as a “grievance appeal”. Those notes reveal that Ms Mackenzie asked relevant questions to establish what had happened from the claimant’s perspective. She undertook to speak to Mr Shah and to review CCTV. The claimant accepted in cross-examination that nothing was unsupportive about any of that, and accepted that Ms MacKenzie was following procedures, but did not think that Ms MacKenzie was taking the grievance seriously. Mr Shah strongly denied the claimant’s allegation. I have viewed the same CCTV footage of the incident that Ms MacKenzie saw. It is inconclusive and neither supports nor undermines the claimant’s allegation of inappropriate behaviour by Mr Shah. Ms MacKenzie did not uphold the claimant’s grievance because she felt that there was insufficient evidence to do so, but she did suggest mediation between the claimant and Mr Shah as a way of repairing working relationships. Her reasoning is set out in detail in a letter dated 20 May 2022. The claimant accepted in cross-examination that the offer of mediation was a supportive measure.

[23]In case number 8000146/2023 the Employment Tribunal upheld the claimant’s allegation of sexual harassment but made no finding that Ms MacKenzie had acted in bad faith. I find that Ms MacKenzie reached a conclusion based on the weight of the evidence as she honestly saw it. The claimant disagrees with Ms MacKenzie’s conclusion and so did an Employment Tribunal in another case, but that does not mean that Ms MacKenzie failed to support the claimant or rejected the allegation for any reason other than her genuine view of the evidence. I do not accept that a failure to uphold the allegation against Mr Shah amounted to a lack of support in all the circumstances, since a decision maker must make an independent assessment of the evidence. I find that Ms MacKenzie was supportive, within the parameters of her role as grievance decision maker.

[24]The second (appeal) stage of the grievance process was chaired by Mr Atherton on 10 August 2022. He watched the relevant CCTV footage in the presence of the claimant. Once again, the claimant’s position was not upheld, but that was because of a view Mr Atherton took of the evidence in good faith. Mr Atherton took steps to ensure that Mr Shah would not work at the Tannochside site in the future. The claimant accepted that that was a supportive measure. Once again, I do not accept that a failure to uphold the allegation against Mr Shah amounted to a lack of support in all the circumstances, since a decision maker must make an independent assessment of the evidence. Overall, I reject the claimant’s suggestion that Mr Atherton failed to offer the claimant appropriate support in his capacity as the grievance appeal decision maker.

[25]When the claimant cross-examined the respondent’s witnesses, she was keen to establish that they had not “represented” her at the previous ET hearing. That is certainly true, but if by that the claimant means to imply that a failure to do so amounts to a lack of support, then I reject that submission. It was simply not the role of any of the respondent’s staff to act as the claimant’s representative in a Tribunal claim brought against the respondent, and the failure to do so does not amount to a failure to offer proper support in that context. Failure to provide VMO2 Broadband benefits September 2023 to May 2024

[26]It was common ground that benefits were provided by the client, VMO2, to the respondent’s staff assigned permanently to the VMO2 contract. The claimant fell into that category. The benefits consisted of a discount of around £15 per month on broadband supply and a mobile phone discount which depended on the model purchased. To access those benefits the employee would require a personal VMO2 email address. Although the security team used a shared VMO2 email address for work matters, that did not count. Only the client, VMO2, could set up the necessary email address. The documents available at this hearing revealed the respondent’s Mr Williams requesting an account for the claimant on 30 August 2023 and confirming to the claimant that he had done so. The VMO2 property team reported on 5 September 2023 that they were having technical difficulties setting up the account. Mr Williams chased the matter on 21 September 2023, confirmed that to the claimant, and also the reasons for the delay. The claimant accepted in cross-examination that Mr Williams was trying to get her an email address so that she could take advantage of VMO2 benefits. The claimant chased Mr Williams on 28 December 2023, and he replied within 15 minutes confirming that he had chased the client again. By early January 2024 the client had requested an email address for the claimant and Mr Williams confirmed the position to the claimant on 10 January 2024. There appear to have been some further technical difficulties. The claimant chased Mr Williams on 7 May 2024, and VMO2 reset the password for the account on 20 May 2024.

[27]I find that the respondent did everything that it reasonably could to progress matters with the client VMO2 for the benefit of the claimant. The delays were on VMO2’s side and appear to have been caused to at least some extent by technical difficulties during a data migration following a merger. Failure to modify tasks (5 November 2023 to 23 May 2024)

[28]The crux of the claimant’s allegation is that the respondent failed to modify her work tasks to accommodate her high blood pressure, anxiety and foot pain between the above dates. The claimant had returned to work on 5 November 2023 following an absence with high blood pressure which had begun on 21 October 2023.

[29]The claimant had not requested any alteration of her duties on account of high blood pressure in her return to work interview. In cross-examination, she was initially unable to suggest any tasks which could and should have been modified, saying that it was the responsibility of managers. None had been specified in the list of issues. Ultimately, the claimant suggested that her watery eyes meant that she could not see clearly, so that her patrolling and reporting tasks should have been changed. That is not a position supported by medical evidence and it was not a suggestion she had made to her employers at any point during her employment. The claimant had only said that her watery eyes made it difficult for her to complete online training modules.

[30]Significantly, when the claimant reported dizziness and shortness of breath on 25 January 2024 and asked for cover, Mr Williams not only replied within about 90 minutes confirming that the shift would be covered, but he also said, “Would you like ISS to refer you to our occupational health partner to see if they can provide you with any support?” Mr Williams repeated that offer on 26 January 2024. I find that if the claimant really had required any modification of her duties then she would have accepted that invitation and would have allowed occupational health to explore her health problems and the appropriate adjustments or other response. The claimant did not take up that opportunity, so in the absence of medical evidence on the point I find that there was no need for any alteration of her duties because of high blood pressure, anxiety or foot pain. In any event, the claimant accepted in crossexamination that her foot pain followed the alleged ankle injury on 22 May 2024. The claimant was absent from work following that alleged injury and did not return prior to the effective date of termination, so there was no scope for the respondent to adjust her duties for foot pain even if it had been necessary and appropriate. Prohibited use of ladies’ toilets by Derek Dunn

[31]The claimant alleges that during the period December 2023 to 23 May 2024 Derek Dunn used the ladies’ toilets leaving mess on the toilet seat, to the claimant’s detriment. In evidence, the claimant explained that the mess consisted of urine and unknown black stains. It was common ground that the female toilet and the accessible toilet were the same thing. Despite several reminders about the importance of putting her case, the claimant failed to suggest to Mr Dunn that he had used the female/accessible toilet at all between the above dates. Mr Dunn denies using that toilet during the relevant period and that denial is consistent with the fact that the male toilets are closer to the reception workstation and in good condition. A key was required to open the female/accessible toilet whereas there was no lock on the male toilet. There would be no need for Mr Dunn to enter the accessible/female toilet, except as part of his security duties. He had no reason to use that toilet.

[32]I also note that the claimant made no formal complaint about the use of that toilet during the relevant period. That would be surprising if it had been used and left in a mess, given that that claimant had previously made an email complaint about it prior to the hearing of case number 8000146/2023, and that it was one of the issues on which she succeeded in that case.

[33]I find that the claimant has failed to prove this allegation on the balance of probabilities. I accept Mr Dunn’s evidence in preference to that of the claimant and find that Mr Dunn did not use and leave the toilet in a mess as alleged. Failure by Derek Dunn to talk directly to the claimant when in a group of people from 11 December 2023

[34]The allegation is framed in rather general terms, with no specific dates or context. The claimant’s oral evidence was similarly vague. It is also problematic that the claimant did not cross-examine Mr Dunn on this point, failing to put to him that he had ever failed to talk directly to her when in a group of people. I had reminded the claimant of the need to do so, if that was to be her submission at the end of the hearing.

[35]In those circumstances, and given the comments already made above regarding the relative credibility of the witnesses, I find that Mr Dunn’s evidence is likely to be correct. The only occasion on which he can remember being present in a group which included the claimant in the relevant period was when new CCTV was being installed. Mr Dunn cannot specifically remember the claimant having been there, though it is possible that she might have been present at shift changeover time. Mr Dunn also accepted that it was possible that he had been present at the same time as the claimant and the cleaner, at around handover time.

[36]On either scenario, there is no reason to think that the claimant needed to be involved in a conversation regarding CCTV installation, or a conversation between Mr Dunn and the cleaner. If the claimant was present, and if Mr Dunn failed to speak directly to her, then I find that there was no reason for him to have done so.

[37]I find that the claimant’s evidence is so vague and lacking in detail that she has failed to prove this allegation on the balance of probabilities. If she was ever present when Mr Dunn was talking to someone else, then it was not a “group” conversation from which she was excluded. She was merely present while Mr Dunn was quite permissibly speaking to other people. Derek Dunn ignoring the claimant’s presence

[38]The allegation is that following the previous judgment in case number 8000146/2023 Mr Dunn ignored the claimant’s presence at shift changeover time. The allegation is otherwise fairly unspecific, lacking any dates or additional context.

[39]Mr Dunn firmly denied the allegation, and the claimant accepted in crossexamination that they would sometimes chat at handover about the weather, films and family. Mr Dunn said that he would also briefly inform the claimant of any faults and whether any engineers were due to attend that night. That is entirely plausible because it would have been necessary for operational reasons, so I accept his evidence.

[40]I find that the claimant has failed to prove this allegation on the balance of probabilities. Failure by Mr Williams to talk directly to the claimant when in a group of people from December 2023, and Mr Williams ignoring the claimant’s presence from 11 December 2023

[41]I accept Mr Williams’ evidence, based on his travel records, that he did not visit the site when the claimant was working between 11 December 2023 and the claimant’s last working shift on 22 May 2024. He did visit on 4 occasions within that period, but for a variety of reasons the claimant was not working on those dates. The Daily Occurrence books also support the respondent’s case that the claimant was not on site when Mr Williams visited. The claimant did not put these aspects of her case to Mr Williams in cross-examination. I had reminded her of the need to do so. I also refer back to the findings set out above regarding the relative credibility of the witnesses. For all those reasons, I find that the claimant has failed to prove these allegations on the balance of probabilities. The deliberate activation of intruder alarms by Jonathan Williams and/or Derek Dunn 200-400 times per shift in the period January 2024 to 23 May

[42]I find that there was no way of triggering the alarms remotely, and that they could only be triggered by someone who was physically present on site. That was the clear and firm evidence of the respondent’s witnesses, who have knowledge of the technical aspects of the system. The claimant had no objective basis for her assertion to the contrary. Against that background it is significant that:a. Mr Dunn was only on site at the same time as the claimant at handover time.

b. Mr Williams had not been on site at the same time as the claimant at all in the relevant period (see above).

c. The claimant did not report seeing Mr Dunn or Mr Williams on the cameras at unusual times.

[43]The claimant had not recorded the alleged activations in the occurrence book, which suggests that they did not happen. I find it inconceivable that the claimant would have failed to do so if there really had been 200-400 activations per shift on any occasion, let alone on multiple occasions. If there really had been so many activations of intruder alarms, then it would also have been a matter of legitimate concern to VMO2, as the claimant would have appreciated. While the claimant said in cross-examination that she had been told not to log those occurrences she did not put that to any of the respondent’s witnesses and I do not find it plausible.

[44]I find it impossible to accept that the claimant’s evidence as to the number of activations per shift was accurate. If there had been that many false activations, then the effectiveness of the system as a means of detecting intruders would be seriously undermined. That would surely have generated formal reports and urgent maintenance, as well as discussions with VMO2.

[45]However, the claimant’s case was developed in the following way, which was arguably inconsistent with the list of issues. She suggested that Mr Dunn and/or Mr Williams had altered the fields of detection, such that accidental activations would become more likely, perhaps as a result of wind. That does not appear to be the same allegation at all, but it is in any event firmly contradicted by the respondent’s technical evidence, which I accept. That evidence was that there had not been any expansion in the external detectors’ fields of detection, that they had always run from the edge of the building to the boundaries of the site, and that it was impossible for security staff to move the detection lines because they did not have the necessary log in credentials to do so.

[46]The claimant has failed to satisfy me that either Mr Dunn or Mr Williams did anything to cause 200-400 alarm activations per shift, or to make that more likely as a result of wind or other natural causes. Failure by Derek Dunn and/or Jonathon Williams to reply to a fire alarm report on or about 11 March 2024

[47]The claimant’s short email to Jonathon Williams and John Atherton at 02:48 on 11 March 2024 reporting a fire alarm activation was an entirely appropriate email to send, but it did not require a reply. It was sent for information and begins, “Just to let you know…”. I find that the failure to reply to that email put the claimant at no disadvantage. A reasonable person in an equivalent position would not consider that it would or might put them at a disadvantage.

[48]There is an additional reason why Mr Dunn was blameless: the claimant’s email was not sent to him so there was nothing for him to reply to.

[49]The facts of this allegation are undisputed, but I find that it did not amount to detrimental treatment of the claimant. Deliberate activation of the fire alarm on 11 March 2024 by Derek Dunn and/or Jonathon Williams

[50]The fire alarm was caused by a refrigerant gas leak from a computer room air conditioning unit. That was established by an engineer within a few hours and recorded in the Daily Occurrence Book by the claimant. The claimant accepted in cross-examination that the alarm had been activated by smoke or vapour from the air conditioning unit. The claimant’s case then appeared to develop, such that she alleged that Derek Dunn and/or Jonathan Williams had either caused that leak or had interfered with other equipment such that it would activate a fire alarm. There is no evidence whatsoever that Derek Dunn or Jonathon Williams had deliberately sabotaged or interfered with that unit when present on site to cause a fire alarm much later during the claimant’s shift. It is simply the claimant’s assertion.

[51]I find that the claimant has failed to prove on the balance of probabilities that the activation of the fire alarm was caused in any way by Derek Dunn and/or Jonathon Williams. In May 2024 when the claimant reported a problem with the doors unlocking over the weekend, Derek Dunn telling the claimant that it was a system fault

[52]The facts are not in dispute, but I am unable to see how a reasonable person in the claimant’s position could regard that communication as something which would or might put them at a disadvantage. I did not hear any evidence to suggest that the problem was anything other than a system fault, so Mr Dunn was probably right to say that. In May 2024, when the claimant reported up to 400 intruder alarm activations on a windy day, Mr Dunn saying “it will keep you awake”.

[53]Mr Dunn denied saying that, and I prefer his evidence to that of the claimant. I find that he is more likely to be correct and refer to my observations above regarding the relative credibility of the witnesses.

[54]Even if the remark had been made, I find it difficult to see that it mocked the claimant’s medical conditions, as she suggested. At worst, it was a lighthearted remark based on the humorous assertion that the claimant might otherwise have been sleeping, which no one seriously thought or suggested.

[55]The claimant has failed to establish the facts of this allegation on the balance of probabilities and I find that it would not have amounted to a detriment even if it had occurred as alleged. Failure by Derek Dunn and/or Jonathan Williams to provide PPE in April and May 2024

[56]Mr Dunn had no responsibility for ordering uniform or PPE, but he would pass requests to Mr Williams who did. Neither of those witnesses could recall the claimant asking for an umbrella in April or May 2024, and I accept their evidence on that point. I find that the only request for an umbrella had been much earlier in 2019. The claimant appeared to accept that in crossexamination. It is therefore irrelevant to the allegation set out in the list of issues.

[57]In any event, it would be stretching a point too far to regard an umbrella as personal protective equipment. It is difficult to argue that the purpose of an umbrella is to protect the user from injury. The rainy weather in the Greater Glasgow area is well-known but it is not usually a cause of personal injury.

[58]The claimant did however request new safety footwear and a uniform by email saying, “all I need is a jacket and shoes”. The position regarding footwear was not straightforward, and the respondent was unable to supply a like for like replacement because it was not standard issue footwear. There was some email discussion of appropriate alternatives, but it is clear to me that Mr Williams was trying to find a solution so that the claimant could be provided with new safety footwear that met her requirements.

[59]The claimant asked for a new jacket, but it was not clear to Mr Williams whether that meant a hi-vis outdoor jacket, so he sought clarification. The claimant had not replied on that point before her sick leave began.

[60]Overall, I find that the respondent was in the process of providing the PPE or uniform that the claimant had requested by the time her sick leave commenced. There had not been such delay that it could properly be regarded as a failure to provide PPE, as alleged. The claimant has failed to prove the facts of this allegation on the balance of probabilities. Failure by Jonathon Williams to take seriously the claimant’s reports of unlocking doors and intruder alarm activations, asking her to report matters to her supervisor

[61]If this had occurred, then I see nothing wrong with Mr Williams saying that it was a matter properly reported to the claimant’s immediate supervisor. These were operational matters, which the supervisor could escalate if appropriate.

[62]In any event, Mr Williams did not recall the claimant making any such reports to him, and I find on the balance of probabilities that no such reports were made. If the alleged events had been happening then the claimant should have made appropriate entries in the Daily Occurrence Book and should also have raised the lock issues with the Property Helpdesk so that an engineer could attend. No such action was taken and given my general concerns about the claimant’s credibility I find that she has failed to establish the facts of this allegation on the balance of probabilities. A requirement in May 2024 to carry out external patrols despite stress and anxiety

[63]External patrols are carried out in daylight, which effectively means that they are carried out by the site supervisor on dayshift in winter, and that the claimant would only be required to carry them out on nightshift once the evenings had become light enough to allow that.

[64]The claimant had carried out patrols in the summer of 2023 without raising stress or anxiety as a problem. In mid-May 2024 Mr Dunn informed those on the night shift that they should conduct external patrols again, and the claimant carried them out until the date of her alleged accident. The claimant raised no objection in 2024. She did not mention stress or anxiety as a reason why she should not have been patrolling in the interview about her accident on 12 June 2024.

[65]While it was true that the claimant was asked in May 2024 to carry out external patrols, the gist of the allegation is that she should not have been asked to do so because she was suffering from stress and anxiety. I find that in May 2024 the respondent had no reason to think that external patrols should be avoided for those or any other reasons. Further, I find that there were no medical reasons why the claimant could not have carried out external patrols. That has not been established by any medical evidence. I find that the claimant has failed to prove this allegation on the balance of probabilities. The alleged accident on 22 May 2024

[66]The claimant alleged that she was involved in an accident which caused her to suffer personal injury while carrying out an external patrol at 1808 on 22 May 2024. In her evidence in chief the claimant said that she “couldn’t see” because it was raining heavily and that she “tripped [her] right foot”.

[67]Inconsistently, the claimant had told the internal investigation that she had “slipped”, which is an entirely different mechanism of injury. The incident report completed by the claimant said, “I slipped and twisted my right leg because of heavy rain and poor visibility, got shooting pain, took pain killers and notified Control room and helpdesk.” The ISS site engineer checked the suspected area of the incident and confirmed that there was no broken ground or oil spillage in the area. There is also external lighting in the area, when lighting is required. In a Teams meeting about the incident on 12 June 2024 the claimant repeatedly referred to a “slip”, but not to a “trip”. I find that she has been inconsistent about a fundamental feature of the mechanism of the accident. She also said that it was “dark because of rain” at the time and “I couldn’t see because of heavy rain I slipped and twisted my right ankle”.

[68]I have seen the video several times, and I find that the respondent’s submissions are correct. The video is of good quality. It shows that there was only light rain, and certainly not heavy rain as the claimant suggested. There was a good level of light, as would be expected at 1808 in the third week of May 2024. I take judicial notice of the fact that the sun does not set in Glasgow for more than 3 further hours at that time of year. I do not accept that the claimant could have been unable to see, as she had suggested. Even more importantly, the claimant simply did not trip or slip. A trip or slip seemed so obviously absent from the video that I asked the claimant to say when the video showed her tripping by saying “trip” at the relevant moment. She identified one point, but all that happened at that moment was that the claimant briefly stopped walking, flexed her right foot slightly in the way that someone might if it was numb or stiff, and then continued walking in same manner as she had prior to stopping. The claimant did not limp or have any other obvious difficulty after the alleged accident and her speed and gait were unchanged.

[69]Regrettably, I must find in those circumstances that the claimant’s evidence that she tripped, or slipped, is false. It is not a matter on which I think that she could have been honestly mistaken. Her evidence about the weather and the light was also incorrect. The claimant insisted that the video showed her tripping when it simply did not. This caused serious damage to the claimant’s credibility. Derek Dunn asking the claimant “how did you manage to slip”

[70]The allegation is that in relation to her alleged accident, Derek Dunn said to the claimant “how did you manage to slip”, while laughing.

[71]I find that Mr Dunn did not laugh when making the comment. He firmly denied doing so, and I have already set out my observations on the relative credibility of the witnesses. I prefer his evidence on that key point. I also note that in the meeting held to discuss the slip the claimant did not allege that Mr Dunn had laughed at her. While in her grievance the claimant took issue with the way in which Mr Dunn had asked the question and called him a “bully”, she did not allege that he had laughed. The claimant has not satisfied me on the balance of probabilities that Mr Dunn laughed.

[72]I also find that saying “how did you manage to slip” is a perfectly normal thing to say after learning that someone claimed to have slipped and does not carry any objectively negative or pejorative connotation. It is not a remark that a reasonable person would consider would or might put them at a disadvantage. Any concerned colleague might say something along those lines, and a supervisor has a responsibility to ensure that accidents are properly recorded and investigated. I do not accept the claimant’s argument that it was detrimental to say that without first asking the claimant if she had hurt herself, nor do I think that there was anything inappropriate or otherwise detrimental about the phraseology.

[73]In summary, I find that Mr Dunn did not laugh and that in the absence of that feature the words used were not inappropriate or otherwise detrimental. Ignoring the claimant’s mental health in relation to the slip incident

[74]The claimant did not mention any impact on her mental health following the incident. She did not mention mental health issues at the meeting called to discuss the incident, nor did any of her fit notes refer to mental health problems. All the fit notes from 11 June 2024 to 8 October 2024 referred only to “foot pain”. In those circumstances I find that the respondent cannot be said to have “ignored” mental health issues. No evidence of any such mental health issues had been brought to the respondent’s attention, if they existed at all. Failure to pay statutory sick pay due on 3 October 2024

[75]The facts of this allegation are undisputed, but I accept the respondent’s explanation for the failure. It is established by emails sent at the time. Erroneously, Mr Williams sent the claimant’s most recent fit note to the “FortnightlyQueries” email address rather than the “FortnightlySubmission” email address. That caused a delay in payment, and the matter was corrected in the next available pay round. I accept that it was an entirely innocent mistake on Mr Williams’ part based on a misunderstanding of the correct email address to use. Mr Wills saying on 4 October 2024 that he could not believe that Mr Dunn would do certain things, and failing to take the claimant’s grievance seriously

[76]This allegation concerns a remark made by Mr Wills at the grievance hearing. In the agreed transcript, Mr Wills says that Mr Dunn was “a very polite individual and a very quiet individual” which painted a “different picture” to the claimant’s evidence in support of her grievance. Clearly, Mr Wills was referring to his own experience of Mr Dunn in that passage. However, Mr Wills also asked the claimant four times to provide him with copies of all of her past grievances, including any complaints about Mr Dunn, for further investigation. That is because the claimant said that she had “written many many times over the years” and that she had raised many grievances which had been ignored. However, the claimant did not comply with Mr Wills’ request for copies of the grievances, despite undertaking to do so at the meeting. Mr Wills’ request for evidence nevertheless demonstrated that he was taking the grievance seriously.

[77]It is relevant to note that the claimant had not formally lodged a grievance in accordance with the respondent’s procedures, but rather the process had been triggered by the claimant’s commencement of ACAS Early Conciliation. That suggests a willingness on the respondent’s part to take the grievance seriously, because it was not obliged to do that under its own procedures. It chose to proceed as if the claimant had lodged a grievance.

[78]In those circumstances, I find that although Mr Wills did say that he had found Mr Dunn to be a “very polite individual and a very quiet individual”, he did not have a made-up mind as to the merits of the claimant’s allegations and he was seeking further relevant information. The claimant accepted in crossexamination that Mr Wills wished to establish the nature of the grievance, to explore the claimant’s complaints and to check when grievances had been raised about each of them. I therefore find that a reasonable person in the claimant’s position would not regard the comments as ones which would or might put them at a disadvantage. Legal principles – constructive dismissal

[79]It is for the claimant to satisfy the Tribunal that she was constructively dismissed for the purposes of s.95(1)(c) of the Employment Rights Act 1996. Otherwise, the legal effect is that her employment terminated by a resignation which is not to be treated as a dismissal.

[80]The claimant must prove that the respondent was in repudiatory breach of her contract of employment. That entails proving a “significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract” (Western Excavating (ECC) Ltd v Sharp

[1978] ICR 221

, CA). The Court of Appeal expressly rejected the argument that the predecessor provisions of s.95(1)(c) ERA 1996 introduced a concept of reasonable behaviour into the contract of employment. An employee is not able to resign and claim constructive dismissal merely because their employer has behaved unreasonably. The implied term of trust and confidence

[81]The claimant relies on a breach of the implied term of trust and confidence. It is uncontroversial that the following fundamental term is implied into every contract of employment.

[82]It is a fundamental breach of contract for either party, without reasonable and proper cause, to conduct itself in a manner ‘calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee’ (Courtaulds Northern Textiles Ltd v Andrew

[1979] IRLR 84

, EAT, Malik v BCCI

[1997] ICR 606

, HL).

[83]If the claimant establishes a repudiatory breach of contract then she must also demonstrate that the breach caused her to resign and that she did not delay too long before resigning, thereby affirming the contract and losing the right to claim constructive dismissal.

[84]Where there is more than one reason for an employee’s resignation then it is not necessary for the employee to prove that the repudiatory breach of contract was the sole, predominant, principal, major or main cause of the resignation. The crucial question is whether the repudiatory breach “played a part in the resignation” (Wright v North Ayrshire Council

[2014] ICR 77

, EAT). The repudiatory breach need only be one of the factors relied on when resigning. Seriousness of breach of contract

[85]A breach of the implied term of trust and confidence is necessarily fundamental (Morrow v Safeway Stores plc

[2002] IRLR 9

, EAT) – it is a “fundamental term”. Breaches of other contractual terms may or may not be of the required seriousness. It is essentially a question of fact and degree whether the breach reached the level described in Western Excavating (above). The test of whether there was a repudiatory breach of contract is objective, and it neither depends on the subjective intentions of the employer (Leeds Dental Team Ltd v Rose

[2014] ICR 94

, EAT) nor on the subjective perception of the employee. Legal principles – discrimination and victimisation

[86]Section 39(2)(d) and 4(d) of the Equality Act 2010 together provide that an employer must not discriminate against or victimise an employee in various ways including by subjecting them to ‘any other detriment’. Direct Discrimination

[87]Section 13 of the Equality Act 2010 defines direct discrimination as follows: a person(a) (A) discriminates against another

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

[88]By virtue of section 23(1) of the Equality Act 2010 when carrying out that comparison there must be “no material difference” between the circumstances relating to each case.

[89]In Shamoon v Chief Constable of the RUC

[2003] UKHL 11

at paragraphs 8 and 11 Lord Nicholls encouraged Employment Tribunals to concentrate on the “reason why” question when considering a complaint of direct discrimination. That is often less complicated than identifying a comparator whose circumstances are materially the same and almost invariably the answer to it will determine the claim. Lord Nicholls framed the questions as “why did the alleged discriminator act as he did? What, consciously or unconsciously, was the [alleged discriminator’s reason?”. That is a question of fact.

[90]It is an elementary feature of direct discrimination law that discrimination may be subconscious as well as conscious (Kohli v Department for International Trade

[2023] EAT 82

and Shamoon, above). Victimisation

[91]Section 27 of the Equality Act 2010 provides as follows: Victimisation(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.

(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.

(3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.

(4) This section applies only where the person subjected to a detriment is an individual.

(5) The reference to contravening this Act includes a reference to committing a breach of an equality clause or rule. Detriment

[92]The concept of “detriment”, whether for the purpose of section 27 (above) or section 39(2)(d) and 4(d) of the Equality Act 2010, is not defined in the Act but is for practical purposes set out in Shamoon v Chief Constable of the RUC

[2003] UKHL 11

. The key test is whether the treatment was of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to their detriment. It is not necessary to demonstrate some physical or economic consequence. In one sense the test is not wholly objective because it is enough that a reasonable worker might take that view, even if the Tribunal takes another view (Warburton v Chief Constable of Northamptonshire

[2022] EAT 42

). However, it is equally clear that an unjustified sense of grievance will not suffice because the hypothetical worker is taken to be a reasonable worker. Causation

[93]Both for the purposes of direct discrimination and also victimisation the test of causation is whether the protected characteristic or protected act was a “significant influence” on the employer’s decision-making. A “significant influence” is one that is more than trivial (Igen Ltd v Wong

[2005] ICR 931

, CA, Villalba v Merrill Lynch and Co Inc

[2007] ICR 469

, EAT). It does not have to be the primary cause of the treatment complained of. Burden of proof

[94]The burden of proof in proceedings relating to a contravention of the Equality Act 2010 is governed by section 136 of that Act. The correct approach is set out in section 136(2) and (3). References to “the court” are defined so as to include an employment tribunal. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision.

[95]The Court of Appeal has repeatedly stressed that judicial guidance on the burden of proof is no more than guidance and that it is no substitute for the statutory language.

[96]I have taken into account the well-known guidance given by the Court of Appeal in Igen Ltd v Wong

[2005] ICR 931

(sometimes referred to as “the revised Barton guidance”), which although concerned with predecessor legislation remains good law. It was approved by the Supreme Court in Hewage v Grampian Health Board

[2012] ICR 1054

. Ayodele v Citylink Ltd

[2018] ICR 748

, CA confirmed that differences in the wording of the Equality Act 2010 have not changed the test or undermined the guidance in Igen Ltd v Wong.

[97]First, the claimant must prove certain essential facts and to that extent faces an initial burden of proof. The claimant must establish a “prima facie” or, in plainer English, a “first appearances” case of discrimination which needs to be answered. If the inference of discrimination could be drawn at the first stage of the enquiry then it must be drawn at the first stage of the enquiry, because at that stage the lack of an alternative explanation is assumed. The consequence is that the claimant will necessarily succeed unless the respondent can discharge the burden of proof at the second stage.

[98]However, if the claimant fails to prove a “prima facie” or “first appearances” case in the first place then there is nothing for the respondent to address and nothing for the tribunal to assess. See Ayodele at paragraphs 92-93 and Hewage at paragraph 25.

[99]At the first stage of the test, when determining whether the burden of proof has shifted to the Respondent, the question for the tribunal is not whether, on the basis of the facts found, it would determine that there has been discrimination, but rather whether it could properly do so.

[100]The following principles can be derived from Igen Ltd v Wong (above), Laing v Manchester City Council

[2006] ICR 1519

EAT, Madarassy v Nomura International plc

[2007] ICR 867

, CA and Ayodele v Citylink Ltd (above), which reviewed and analysed many other authorities.a. At the first stage a tribunal should consider all the evidence, from whatever source it has come. It is not confined to the evidence adduced by the claimant and it may also properly take into account evidence adduced by the respondent when deciding whether the claimant has established a prima facie case of discrimination. A respondent may, for example, adduce evidence that the allegedly discriminatory acts did not occur at all, or that they did not amount to less favourable treatment, in which case the tribunal is entitled to have regard to that evidence.

b. There is a vital distinction between “facts” or evidence and the respondent’s “explanation”. While there is a relationship between facts and explanation, they are not to be confused. It is only the respondent’s explanation which cannot be considered at the first stage of the analysis. The respondent’s explanation becomes relevant if and when the burden of proof passes to the respondent.

c. It is insufficient to pass the burden of proof to the respondent for the claimant to prove no more than the relevant protected characteristic and a difference in treatment. That would only indicate the possibility of discrimination and a mere possibility is not enough. Something more is required. See paragraphs 54 to 56 of the judgment of Mummery LJ in Madarassy.

[101]However, it is not always necessary to adopt a rigid two stage approach. It is not necessarily an error of law for a tribunal to move straight to the second stage of its task under section 136 of the Equality Act 2010 (see for example Pnaiser v NHS England

[2016] IRLR 170

EAT at paragraph 38) but it must then proceed on the assumption that the first stage has been satisfied. The claimant will not be disadvantaged by that approach since it effectively assumes in their favour that the first stage has been satisfied. The risk is to a respondent which then fails to discharge a burden which ought not to have been on it in the first place (see Laing v Manchester City Council

[2006] ICR 1519

EAT at paragraphs 71 to 77, approved by the Court of Appeal in Madarassy). Tribunals must remember that if and when they decide to proceed straight to the second stage.

[102]It may also be appropriate to proceed straight to the second stage when the claimant compares their treatment to that of a hypothetical comparator. Sometimes the reason for the treatment, and the question whether there is a prima facie or “first appearances” case of discrimination, will inevitably be intertwined with the question whether the claimant was treated less favourably than a comparator, especially a hypothetical comparator. In cases of that sort the decision on the “reason why” issue will also provide the answer on the “less favourable treatment” issue (see Lord Nicholls in Shamoon v Chief Constable of the RUC

[2003] ICR 337

at paragraphs 7 to 12 and Elias LJ in Laing v Manchester City Council

[2006] ICR 1519

EAT at paragraph 74).

[103]In a similar vein, the Supreme Court in Hewage (above) observed that it was important not to make too much of the role of the burden of proof provisions. They required careful attention where there was room for doubt as to the facts necessary to establish discrimination but they have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or the other. Time limits

[104]I will set out the governing provision, which is section 123 of the Equality Act 2010. Time limits(1) Subject to section 140B proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable.

(2) Proceedings may not be brought in reliance on section 121(1) after the end of— (a) the period of 6 months starting with the date of the act to which the proceedings relate, or (b) such other period as the employment tribunal thinks just and equitable.

(3) For the purposes of this section— (a)conduct extending over a period is to be treated as done at the end of the period; (b)failure to do something is to be treated as occurring when the person in question decided on it.

(4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.

[105]The claimant did not put forward any case or give any evidence as to why it might be just and equitable to hear any of her complaints out of time, if they were ultimately found to be out of time, though it was a point on the list of issues. It also became irrelevant given my other findings. In those circumstances I will not set out any of the considerable volume of case law on that test.

[106]The claimant did not make any submission to the effect that any of the allegations should be regarded as part of one act extending over a period for the purposes of section 123(3)(a) of the Equality Act 2010, though it was a point on the list of issues. It also became irrelevant given my other findings. In those circumstances I will not set out any of the case law on the circumstances in which allegations should be regarded as single acts with continuing consequences, single acts extending over a period, or a series of separate acts. Res judicata and similar principles

[107]There are some differences of terminology between Scotland and England and Wales in this area but the principles are substantially the same. The doctrine usually referred to as “the rule in Henderson v Henderson [1843] 3 Hare 100 PC” in England and Wales is part of the wider doctrine of res judicata in Scotland (British Airways plc v Boyce

[2001] IRLR 157

, Court of Session).

[108]Save for special circumstances, a party is required to bring forward their whole case when a matter becomes the subject of litigation in and adjudication by a court or Tribunal of competent jurisdiction. Therefore, in the absence of special circumstances, a court or tribunal will not permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of the original claim, but which was omitted. The “res judicata” principle therefore applies not only to points on which the court was actually required to give a judgment, but also to every point which properly belonged to the subject of that litigation and which the parties, exercising reasonable diligence, might have brought forward at the time. This is all part of the public interest in the finality of legal proceedings (Johnson v Gore Wood & Co

[2002] 2 AC 1

). Submissions

[109]The respondent’s submissions were made almost entirely in writing, with only very brief oral submissions to respond to a couple of points made by the claimant and to correct a misunderstanding of mine. The respondent’s written submissions were given to the claimant in good time for her to read them before making her own, and the respondent had by then already supplied a separate summary of the applicable legal principles which the claimant did not dispute.

[110]The claimant’s submissions were entirely oral and quite concise. They did not cover all of the points in the list of issues, despite reminders of the need to use that and the respondent’s written submissions as a guide to what she might wish to say. The claimant submitted in broad terms that she had been badly treated and that it had led her to bring a complaint of constructive dismissal, but she did not put forward any reasons why I should find that the protected characteristic of race or the protected act of bringing the previous proceedings were any part of the reason for the treatment she complained of. The claimant simply said that it was her “point of view” that she had been discriminated against because of race and victimised. Reasoning and conclusions

[111]This section of my reasons will need to be read with the list of issues. I will refer to the issues as they were numbered in the final version of that list. For brevity, I will avoid setting out each issue in full since the list of issues appears as an appendix to this judgment. Jurisdictional time issues (issues 1-3)

[112]Any complaint made in the first claim form predating 5 May 2024 is out of time, subject to the possible effect of an act extending over a period or a just and equitable extension of time. That is because ACAS early conciliation was commenced on 4 August 2024. The claim was received by the Tribunal on 13 October 2024, within a month of the date on which early conciliation ended (15 September 2024).

[113]There is no dispute that the complaint of constructive dismissal was presented within time, given the date of the claimant’s resignation. The complaint was presented to the Tribunal at the beginning of the notice period and prior to the effective date of termination.

[114]The claimant gave no evidence of reasons why it might be just and equitable to hear a complaint out of time. Therefore, even if I overlooked the lack of submissions to that effect and proactively considered the point as one arising from the list of issues, it would fail because the claimant had not given me any reason to exercise the admittedly wide discretion in her favour. She had not explained why it was not possible for her to present complaints of discrimination or victimisation earlier, or why it would be just and equitable to hear them late.

[115]I would have considered whether any of the successful allegations could form part of one act extending over a period if it might make any difference to questions of jurisdiction, but only allegations which succeed on their merits can be part of such an act. I have set out below the reasons why all of the allegations of victimisation or direct race discrimination failed on their merits anyway. Res judicata (in the wider sense analogous to the rule in Henderson v Henderson - issues 4 and 5)

[116]By the end of the case I did not understand the respondent to argue any longer that allegation 16(b) was res judicata in the strict sense of an allegation already brought and decided between the same parties by a court of competent jurisdiction. The issue in relation to allegations 16(a) and 16(b) was simply the potential application of the wider rule, known in England and Wales as the rule in Henderson v Henderson.

[117]I accept the respondent’s submissions. Allegation of direct race discrimination 16(a) dates from 24 June 2019 and allegation 16(b) dates from March 2022. Both allegations could and reasonably should have been brought in the previous proceedings in case number 8000146/2023 which was commenced on 2 April 2023. They properly belonged to the scope of that litigation. The claimant has not given any reasons why they could not have been part of it with reasonable diligence, or why it would not have been appropriate to do so. I find that there are no special circumstances which would justify a departure from the normal rule of public policy that complaints which should have been brought in previous litigation between the same parties cannot be litigated now. Allegations 16(a) and (b) are therefore “res judicata” in the wider sense of the concept as applied in Scotland (i.e. the equivalent of the rule in Henderson v Henderson in England and Wales). Constructive dismissal (issues 6 to 12)

[118]Allegation 7(a) was withdrawn during the hearing.

[119]The facts of allegation 7(b) were not established on the balance of probabilities. Further, the respondent had reasonable and proper cause for the actions it took in connection with the provision of VMO2 benefits and, assessed objectively, the claimant’s failure to obtain them prior to her resignation was neither calculated nor likely to destroy or cause serious damage to the relationship of trust and confidence between employer and employee.

[120]The facts of allegation 7(c) were not established on the balance of probabilities. The respondent also had reasonable and proper cause for failing to take the suggested action, because it had no evidence or knowledge of the alleged medical issues. Objectively, the respondent’s action was neither calculated nor likely to destroy or cause serious damage to the relationship of trust and confidence.

[121]The facts of allegation 7(d) were not established on the balance of probabilities. I find that it did not happen.

[122]Mostly, allegations 7(e) and 7(f), with their many sub-divisions, were not established on the balance of probabilities, and I refer to my findings of fact above. To the extent that the facts were established, I find that there was reasonable and proper cause for the conduct criticised in allegation 7(e)(i) in the absence of laughter, and also 7(e)(ii), 7(e)(iv), 7(e)(v), 7(e)(vi), 7(f)(iii) and 7(f)(iv). Further, assessed objectively, I find that those allegations were neither calculated nor likely to destroy or cause serious damage to the relationship of trust and confidence.

[123]The essential facts of allegations 7(g), 7(h), 7(i) and 7(j) were not established on the balance of probabilities. The respondent had reasonable and proper cause for what it did, and what it had failed to do, in relation to requests for uniform and PPE. Once again, in relation to the facts established I find no sufficiently serious actual, intended or likely impact on the relationship of trust and confidence, assessed objectively. Allegation 7(k) regarding SSP was attributable to a genuine mistake and was corrected at the first opportunity. In those circumstances I find that it was neither calculated nor likely to destroy or cause serious damage to the relationship of trust and confidence. It was unfortunate, but no more than that. Allegations 7(l), (m) and (n) can conveniently be taken together because it is important to consider the whole picture. I have found that the claimant’s allegation was taken seriously, and that is the context in which the comments about Mr Dunn were made by Mr Wills. I find that Mr Wills had reasonable and proper cause to share his own experience of Mr Dunn provided that he kept an open mind and investigated the allegation properly, which he did. Viewed objectively, I find that these matters were neither calculated nor likely to destroy or cause serious damage to the relationship of trust and confidence. The issue was treated seriously by the respondent, but the investigation stalled mainly because the claimant failed to engage and to send copies of the documents she had undertaken to send.

[124]I have, of course, also considered the cumulative effect of the allegations, but on the facts as found above the cumulative effect fell well short of the required level of “serious damage” or “destruction” of the relationship of trust and confidence between employer and employee. They were neither calculated nor likely to have that effect, assessed cumulatively and objectively.

[125]I find that there was no breach of the implied term of trust and confidence and therefore no repudiatory breach of contract. In those circumstances, issues 8 to 12 do not arise, though I would add that allegation 7(n) cannot have amounted to a “final straw” for the purposes of a breach of contract because the facts of the allegation were not established on the balance of probabilities. Victimisation (s.27 EqA 2010, issues 13-15)

[126]The respondent concedes, quite properly, that the bringing of claim number 8000146/2023 was a protected act.

[127]Allegation 13(a) was withdrawn and dismissed during the hearing. The remaining allegations 13(b) to 13(i) inclusive mirror factual allegations in the constructive dismissal complaint.

[128]The facts of allegation 13(b) were not established on the balance of probabilities.

[129]Allegation 13(c)(i) was not established in so far as it alleges laughter on the part of Mr Dunn. The remaining facts were established, but I have found that they were not detrimental to the claimant. I also find that they were in no sense whatsoever caused by the protected act. They were caused by Mr Dunn’s genuine curiosity as to how the claimant had slipped. The facts of allegations 13(c)(ii) and (iii) were not established on the balance of probabilities, and even if 13(c)(ii) had been made out I would have found that the reason for the claimant’s treatment was simply the fact that the conversation did not concern her, and in no sense whatsoever the protected act. Allegation 13(c)(iv) is established on the facts, but I have found that it was not detrimental to the claimant. Further, I find that the lack of reply was simply because there was no reason to reply, and that the protected act had nothing at all to do with it. A hypothetical comparator who had not done the protected act would have been treated in the same way. Allegations 13(c)(v) and 13(c)(vi) were not detrimental to the claimant, and I refer to my findings above. Additionally, allegation 13(c)(vi) was not established on the facts anyway.

[130]The facts of allegations 13(d)(i) and (ii) were not established on the balance of probabilities. Allegations 13(d)(iii) and (iv) were not detrimental. In any event, I find that they were in no sense whatsoever caused by the fact that the claimant had done the protected act. No facts were proved from which I could conclude, in the absence of an alternative satisfactory explanation, that the reason for the treatment was the doing of a protected act. I am quite satisfied that the reason for the treatment in 13(d)(iii) was simply that the claimant’s “for information” email required no reply, and that the reason for asking the claimant to report an issue to her supervisor in 13(d)(iv) was because that advice represented the correct approach.

[131]The facts of allegations 13(e) and 13(f) were not established on the balance of probabilities.

[132]Allegation 13(g) has not been established on the balance of probabilities, because I have found that the efforts made by the respondent and the time taken could not properly be regarded as a “failure to provide” equipment or uniform, except in the most technical sense. Alternatively, if the facts are treated as established as a matter of technicality, then I find that the situation was not detrimental to the claimant once the background is correctly understood. The respondent was doing its best to supply equipment that would meet the claimant’s needs, and the situation was not entirely straightforward. Certain queries and suggestions were outstanding at the date when the claimant resigned. A reasonable person in the claimant’s position would not think that the time taken to progress matters up to that point would or might place them at a disadvantage. Additionally, I am satisfied that someone who made the same or equivalent requests for uniform and/or PPE, but who had not done a protected act, would have been treated in the same way. There were no facts proved from which I could have concluded, in the absence of an alternative explanation, that the protected act was any part of the reason for the claimant’s treatment.

[133]Allegation 13(h) is established on the facts and did put the claimant at a disadvantage until the matter was corrected. It therefore meets the test of detriment. However, I am entirely satisfied that the reason for that detrimental treatment was a simple and genuine mistake regarding an email address. The protected act played no part whatsoever.

[134]The factual essence of allegation 13(i) has not been established on the balance of probabilities and I have found that no modification of tasks was actually required. Even if it had been, the explanation for the claimant’s treatment was the fact that the respondent had no knowledge of the claimant’s alleged health problems or the need to modify any of the claimant’s tasks. I am satisfied that the protected act played no part at all.

[135]I have dealt with issue 14 in the course of setting out the reasons above. Direct race discrimination (s.13 EqA 2010, issues 16-18)

[136]Allegation 16(a) was not detrimental. Further, the reason why Mr Dunn used those words was because they were true, and not the claimant’s race. The claimant did not prove any facts from which I could conclude, in the absence of a lawful explanation, that the reason for Mr Dunn’s choice of phrase was in any way race.

[137]Allegation 16(b) is not established on the facts, in that I did not find “unsupportive” conduct. Even if it had been, I am satisfied that the reason for the approach taken by the respondent’s managers had nothing to do with race. The essence of the claimant’s argument was that Mr Shah’s account had been preferred and that she had been left unsupported because of her Asian ethnic origin. However, it was an agreed fact that Mr Shah has the same ethnic origin. It is difficult in that context to see why ethnic origin should have been any part of the reason to prefer once person’s evidence to that of the other. No facts were proved from which I could have concluded, in the absence of a satisfactory explanation, that race was any part of the reason for the claimant’s treatment.

[138]The facts of allegation 16(c) were not established on the balance of probabilities. Even if they had been, no facts were proved from which I could have found, in the absence of a satisfactory explanation, that race was a reason for that treatment.

[139]Allegation 16(d)(i) was withdrawn and dismissed during the hearing. Allegation 16(d)(ii) fails because the allegations of ignoring the claimant in groups were not established on the facts, because there was nothing detrimental about the failure to reply to the fire alarm report and because it was entirely in order (and not detrimental) to ask the claimant to raise the door unlocking issue with her supervisor. In any event, no facts were proved from which I could have found, in the absence of a satisfactory explanation, that race was a reason for that treatment. The claimant’s suggestion that the respondent thought that Asian women were very rude and uneducated is unsupported by any other evidence. As for allegation 16(d)(iii), I find that Mr Wills’ decision to share his own experience of Mr Dunn was not detrimental when seen in context. The more general allegation that he was unsupportive of the claimant or that he did not take her grievance seriously is not established on the facts. In any event, there were no facts proved from which I could conclude, in the absence of another explanation, that race was a significant cause of that treatment.

[140]The facts of allegation 16(e) were not established on the balance of probabilities. Even if they had been, the claimant had not proved any facts sufficient to pass the burden of disproving race discrimination to the respondent.

[141]Allegation 16(f) is not established in so far as it alleges laughter on the part of Mr Dunn. Otherwise, it was not detrimental to the claimant. Further, no facts were proved from which I could have concluded, in the absence of another explanation, that race was a significant cause of that treatment.

[142]My conclusion on allegation 16(g) is already set out in relation to allegation 16(d)(iii).

[143]Issues 17 and 18 have been dealt with in the course of setting out the reasons above. Overall conclusion

[144]For the above reasons, the complaints of constructive dismissal, victimisation and direct race discrimination are not well founded. Therefore, they must all be dismissed. Employment Judge M Whitcombe Date of Judgment 11 June 2025 EMPLOYMENT TRIBUNALS (SCOTLAND) CASE No. 8001678/2024 MISS V ABBAS (Claimant) And ISS FACILITY SERVICES LTD (Respondent 1) Respondent’s updated draft list of issues following the PH on 26 February 2025 and Claimant letter of 4 March 2025 and FH Jurisdictional Issues

Relevant facts

[1]Are any of the claims prima facie out of time on the basis that they occurred more than three months before the Claimant contacted Acas on 4 20 August 2024 (5 May 2024) in respect of the victimisation claim and 15 December 2024 (16 September 2024) in respect of the race discrimination claim?

[2]If so, can the Claimant establish that the acts extend over a period of time as required by s. 123(3)(a) The Equality Act 2010? 25 3. Alternatively, should the Tribunal exercise its discretion to extend time on the basis that it would be just and equitable to do so?

[4]Is allegation 16(b) res judicata in that the Respondent’s response to the Claimant’s complaint in March 2022 was considered and determined as part of case 8000146/2023?

[5]Is allegation 16a and 16b an abuse of process because they ought to have been brought as part of case number 8000146/2023 because there is a restriction on Claimants litigating claims which should have been brought in earlier proceedings (British Airways plc v Boyce

[2001] IRLR 157

) Claim and allegation Respondent’s response Jurisdictional issues Constructive unfair dismissal

[6]Was there a repudiatory breach of the Claimant’s contract of employment?

[7]In particular, did the Respondent breach - the implied duty of mutual trust and confidence by reference to the following: 7(a) Withdrawn 7(b) Not providing access to b. This benefit is provided by the client not the Respondent and None requires a client e mail address which the client provides. There were VMO2 mobile phone and delays in obtaining these which were not in the Respondent’s control, broadband benefits which were the Respondent can demonstrate chasing the client for the Claimant’s access and that others (i.e. Robert Nowakowski) were affected in the provided to others (September same way as the Claimant. 2023 – May 2024) 7(c) Failing to modify the Claimant’s c. The Respondent was aware the Claimant had high blood pressure, None anxiety and foot pain, that the former were long term and all three tasks to accommodate the caused some absences from work but does not acknowlege that any Claimant’s high blood pressure, tasks required modification to enable to the Claimant to work or that the lack of modification resulted in the Claimant’s resignation. anxiety and foot pain (between return to work date of 5 The Claimant was offered an occupational health referral ‘to see if they can provide you with any support’ on 25 January 2024 following November 2023 after the tribunal the Claimant’s absence because of dizziness and shortness of breath hearing and the Claimant’s which elicited no response from the Claimant despite being reiterated the following day. sickness absence of 23 May 2024) (the Claimant has not The Claimant did not have foot pain until 22 May 2024 and was then off sick and unfit to work until her resignation. specified the tasks or This was not raised until September 2024. modifications) 7(d) The supervisor, Derek d.This is categorically denied by Mr Dunn, who says that he only None entered the toilet labelled for female and disabled users during his Dunn, using the ladies’ toilet patrols to check the cleanliness (which was historically a specific again (between from December concern for the Claimant who is the primary user of the facility), that the taps were off and checking for water leaks. 2023 and the Claimant’s sickness absence of 23 May The Claimant made no complaint about this until 4 October 2024. 2024) and leaving mess on the toilet seat 7(e) The behaviour of Derek Dunn, This is denied. None Supervisor, changing towards her after 11 December 2023 including; 7(e)(i) Asking her ‘how did you i) Mr Dunn denies laughing but fully accepts he asked the Claimant how she had slipped because it was not dark or icy and he knows the manage to slip?’ on 23 route well. He is certain he did not use the words ‘how did you May 2024, whilst manage’ which did not feature in the Claimant’s account on 4 October 2024 either. ‘How did you slip?’ is an entirely appropriate question that laughing, after the enables understanding, to accurately report what has happened and Claimant’s slip in the shows that Mr Dunn was interested. If he had not asked, he could have been accused of not caring or being disinterested in preventing grounds of VMO2 other similar incidents. ii) Mr Dunn denies this allegation and asserts that there were rarely 7(e)(ii) Not talking to the groups of people present on site at the time of the handovers between Claimant directly himself and the Claimant. Although he cannot remember any specifics there are of course times that Mr Dunn may need t soak to others i.e. the cleaner, about matters that are not relevant to and do not involve group of people the Claimant. 7(e)(iii) Ignoring the Claimant’s iii) Mr Dunn asserts he always spoke to the Claimant directly, never ignored her and that their relationship has always been a purely presence during shift professional one that has never involved small talk or discussions changeover, 4-5 shifts about their personal lives and therefore handovers have always been brief and entirely work related. especially following a night shift as the per week security officer wants to go home as soon as possible to sleep. 7(e)(iv) Failing to reply to the iv). During the handover Mr Dunn and the Claimant had a brief Claimant’s report in conversation about why she had not silenced the fire panel alarm but the main fire alarm was not discussed, and the Claimant left Mr Dunn to find out about the activation from the Daily Occurrence Book. Mr alarm activation Dunn was not copied into the Claimant’s e mail about the activation so there was nothing for him to reply to and the Claimant could not have been expecting a reply from him. 7(e)(v) In May 2024, telling the v) it is denied the Claimant ever reported a problem ‘with the doors Claimant, when she unlocking over the weekend’. This would be a Priority 1 matter which is the highest available priority category and something the Claimant, reported a problem with as an experienced officer would have reported to the Control Centre doors unlocking over the who would have arranged urgent repairs. weekend, that it was a There was a ‘system fault’ recorded by the Claimant at 04:00 on 7 system fault May 2024 which had potentially been caused by the contractors who had been working on the power distribution units between 21:50 and 02:32. This was the only time in May 2024 that an error was recorded but 7th was not a weekend and it categorically did not cause the doors to unlock. 7(e)(vi) In May 2024, saying ‘it vi) Mr Dunn denies ever saying to the Claimant ‘it will keep you awake’ about any alarms ringing or beeping. will keep you awake’ when Claimant reported the intruder alarms activating up to 400 times per day on a windy day. 7(f) The behaviour of Jonathon This is denied. None Williams, Regional Manager, changing towards her after 11 December 2023 including; 7(f)(i) Not talking to the i) Mr Williams did not visit the site whilst the Claimant was working between 11 December 2023 and the Claimant’s last working shift of 22 May 2024 so this simply cannot be correct. Mr Williams had whenever he was in a planned to see the Claimant during her shift on 12 March 2024, but she was absent due to high blood pressure. 7(f)(ii) Ignoring the Claimant’s ii) This is generally denied but also cannot have happened for the presence when he reasons set out above. attended site once or twice a month 7(f)(iii) Failing to reply to the iii) The Claimant reported the incident to Mr Williams and others at 02:48 on 11 March 2024 and began her e mail ‘Just to let you know’. Mr Williams would have been sleeping at the time and there is March 2024 about a fire nothing to indicate the Claimant was anticipating a reply. Mr Williams received additional reports on the morning of 11 March 2024 from the National Control room who had been contemporaneously involved. The Claimant reported by e mail that she was unwell due to high blood pressure and said she had requested that the control room cover her shift for 11 March. Mr Williams replied that he hoped she was better for the following shift as he would be attending site with Mark Wills and Laura Ballantyne (People and Culture). He may have spoken to her in person about the activation on that date but she remained unwell. This was not mentioned in the October 2024 grievance hearing. 7(f)(iv) In May 2024, not taking iv Mr Williams’ evidence is that the Claimant did not report any the Claimant seriously concerns about doors unlocking or intruder alarms to him and if she had he would have told the Claimant to report this immediately to the when she attempted to Control Centre. report concerns about It would not have been remiss of him to also tell the Claimant to make the unlocking doors and sure to report such matters to the site-based supervisor who would be intruder alarms and able to look into them himself, discuss them with the engineering team and also make a report to the Control Centre. matters to her This was not mentioned in the October 2024 grievance hearing. 7(g) Deliberate activation of g. Neither Jonathaon Williams or Derek Dunn have the ability to None activate the intruder detection system (IDS) system remotely so could (200 – 400) intruder alarms per not deliberately activate the alarms unless on site.The alarm is shift by Jonathan Williams and sensitve and does sound regularly with the movement of trees and animals outside the premises requiring a check and 10 second reset Derek Dunn between January by the officer on shift, but the Respondent does not accept the 2024 and 23 May 2024 regularity increased between January and May 2024 and refutes entirely that this happened between 200 and 400 times a shift. The maximum would be 30 times on a very windy day and would be the same for whichever officer was working. This was not mentioned in the October 2024 grievance hearing. 7(h) Deliberate activation of h. Neither were on site at the time and the fire alarm cannot be h.This claim is 55 days out of activated remotely. This specific alarm was triggered by a refrigerant time given the early the fire alarm by Jonathon gas leak from a Computer Room Air Conditioning (CRAC) unit. The conciliation notification date Claimant had logged and reported a panel fault at 00:07 and later of 4 August 2024. recorded that she had observed smoke near the unit. She logged the Williams and Derek Dunn on 11 attendance of the engineer at 01:40, the doors being opened to allow in fresh air and clear the smoke and the alarms being reset at 03:35. March 2024 The alarm sounded because of a genuine incident and essentially did it’s job. This was not mentioned in the October 2024 grievance hearing. 7(i) Mr Dunn and Mr Williams failing i. Mr Dunn has no responsibility for ordering uniform and the only The umbrella claim is request made to him re these items was for an umbrella in mid-2019 - an abuse of process as it to provide the Claimant with PPE which was declined by Jamie Morrall. should have been raised of an umbrella, boots, and a high in 2023 and Mr Williams was never asked to provide an umbrella. - over 5 years out of time visibility jacket in April/May 2024 On 7 May 2024 the Claimant requested that the Respondent provide None re boots or hi-vis jacket her with a new pair of safety shoes identical to the ones provided by the previous manager. Mr Williams explained to the Claimant on 14 May 2024 that the shoes she had been provided with previously were not standard issue and needed to be, he was limited in the amount he was able to spend, and he would look at what was available. On 22 May 2024 Mr Williams provided a link with a number of options for Ms Abbas to choose from. The Claimant replied to other matters which were discussed in that e mail but did not respond about the safety shoes. The Claimant did not tell Mr Williams that she needed a jacket until 20 May 2024 at 20:04 and he told her by e mail on 22 May 2024, ‘I can order a jacket from the catalogue – is it a hi vis outdoor jacket you want?’ The Claimant did not reply to this e mail. 7(j) In May 2024, requiring the j. In mid-May 2024 the Claimant was told that she and her colleagues None (permanent and relief officers) should pick up the external patrols Claimant to undertake the again which had been pased in the dark winter months as it was light external patrols despite her enough to do so at 6pm. The Claimant did not tell the supervisor this would cause her any difficulties and neither did the Claimant raise this stress and anxiety, which the with the regional manager. Claimant asserts that the The Claimant had continued to fulfil patrols in the summers of 2022 Respondent was aware of since and 2023 (i.e. after the incident with Mr Shah on 27 March 2022), the requirement to conduct this task did not feature in her 2022 grievance her sickness absence in June or the tribunal hearing and the Respondent was therefore not on any notice in the summer of 2024 that this task would cause her any difficulties. 7(k) Failure to pay SSP on 3 October It is accepted that a mistake was made with the processing of the None Claimant’s SSP which should have been paid on 13 October 2024 and this was a genuine human error which was contributed to because Tim Atkinson, who had taken over the management of the site, was unexpectedly sick during and following a period of annual leave, and Jonathon Williams was covering both portfolios. Additionally, there had been changes in the payroll teams which had caused some disruption across the company to the usual service levels and that teams’ ability to ‘catch’ mistakes such as sending submissions to the incorrect payroll e mail address. There was clearly no intention by management to pay the Claimant incorrectly because she had been reminded on 9 September 2024 that her Fit Note was expiring. The Claimant was copied into e mail correspondence requesting the payroll team investigate and resolve the error thus there was transparency and about what had gone wrong and when the payment would be received. 7(l) Mark Wills saying that he could Mr Wills denies saying he did not believe Mr Dunn and Mr Williams None would do the things alleged but he ‘support others’ in the meeting to not believe that Derek Dunn or an extent. Jonathon Williams would do the Mr Wills, knew the Claimant to be incorrect when she said Mr Williams things which the Claimant had ‘told her no’ when she asked for boots because he had seen the e alleged in the Claimant’s mail trail which contradicts this assertion, and he explained this to Claimant which she did not accept. grievance of hearing on 4 October 2024 Mr Wills also said that he did not understand how Mr Dunn asking how she had slipped was evidence of bullying 7(m) On 4 October 2024, Despite there not being a written grievance, the Respondent arranged None a hearing with a senior manager, People and Culture manager and a Mark Wills failing to take the notetaker and engaged with the Claimant to try to understand her Claimant’s grievance seriously complaints. The Respondent could not be expected to revisit matters from ‘6 years ago’ 2019 and that related to the previous manager who left in 2021 or that had been adjudicated already by a tribunal. The Respondent gave the Claimant time to provide more information and documents, and the Claimant chose instead to resign. No outcome was sent because the Respondent was awaiting the Claimant’s further details. 7(n) Concluding in the ‘last As above None straw’ of failing to take the Claimants grievance seriously.

[8]Did the Claimant waive any of the To be decided by the Tribunal alleged breaches and, by her words or actions, keep the contract alive?

[9]Did the Claimant accept any of the To be decided by the Tribunal alleged breaches?

[10]If so, did the Claimant resign in response To be decided by the Tribunal to any of the alleged breaches?

[11]Was the last straw sufficient to form part To be decided by the Tribunal of the overall alleged poor treatment, such that the Claimant is permitted to rely on the earlier alleged treatment?

[12]In the event that there was a constructive To be decided by the Tribunal dismissal, was it otherwise fair within the meaning of s.98(4) of the Employment Rights Act 1996? Victimisation (sex) The Claimant brought a successful sex discrimination claim (8000146/2023) which was heard between 16 and 19 October 2023, the judgment was received on 11 December 2023. The Respondent concedes that this is a protected act pursuant to s27(2)(d) EqA 2010.

[13]Did the Respondent subject the Claimant to the following acts or omissions: 13(a) Withdrawn & dismissed 13(b) The supervisor, Derek As per 7d The judgment was not received until 11 December Dunn, using the ladies’ toilet 2023 so any alleged use from again (between from December 5 November – 10 December 2024 cannot have been 2023 and the Claimant’s because of the judgment. sickness absence of 23 May 2024) and leaving mess on the toilet seat almost 4 – 5 shifts during the Claimant’s shift set; 13(c) The behaviour of Derek As per 7e None Dunn, Supervisor, changing towards her after 11 December 2023 including; 13(c)(i) Asking her ‘how did you manage to slip?’ on 23 May 2024, whilst laughing, after the Claimant’s slip in the grounds of VMO2 13(c)(ii) Not talking to the 13(c)(iii) Ignoring the Claimant’s presence during shift changeover, 4-5 shifts per week 13(c)(iv) Failing to reply to the 13(c)(v) In May 2024, telling the Claimant, when she reported a problem with doors unlocking over the weekend, that it was a system fault 13(c)(vi) In May 2024, saying ‘it will keep you awake’ when Claimant reported the intruder alarms activating up to 400 times per day on a windy day. 13(d) The behaviour of As per 7f None Jonathon Williams, Regional Manager, changing towards her after 11 December 2023 including; 13(d)(i) Not talking to the 13(d)(ii) Ignoring the Claimant’s presence when he attended site once or twice a month 13(d)(iii) Failing to reply to the 13(d)(iv) In May 2024, not taking the Claimant seriously when she attempted to report concerns about the unlocking doors and intruder alarms and matters to her 13(e) Deliberate activation of As per 7g None (200 – 400) intruder alarms per shift by Jonathan Williams and Derek Dunn between January 2024 and 23 May 2024 13(f) Deliberate activation of As per 7h As per 7 h the fire alarm by Jonathon Williams and Derek Dunn on 11 March 2024 13(g) Mr Dunn and Mr As per 7i As per 7i Williams failing to provide the Claimant with PPE of an umbrella, boots, and a high visibility jacket in April/May 2024 13(h) Failure to pay SSP on 3 As per 7k None October 2024 13(i) Failing to modify the As per 7c None Claimant’s tasks to accommodate the Claimant’s high blood pressure, anxiety and foot pain (between return to work date of 5 November 2023 after the tribunal hearing and the Claimant’s sickness absence of 23 May 2024) (the Claimant has not specified the tasks or modifications)

[14]Were they detriments? To be decided by the Tribunal

[15]Were they done because of the To be decided by the Tribunal protected act? Direct discrimination (race)

[16]Did the Respondent do the following: a. When questioned following receipt of the December 2024 claim, Mr R avers: 16(a) On 24 June 2019 the Dunn did not remember writing these words. However, in the previous - this an abuse of process bundle there was indeed an e mail from Mr Dunn to Jamie Morrall as it ought to have been supervisor Mr Dunn wrote the dated 24 June 2019 which says ‘Good afternoon Jamie. Vaneesa raised in 2023, was not words ‘she does not want to get asked me this morning if it would be possible for ISS Security to included until 21 provide a large umbrella as she does not like getting wet while doing December 2024 and wet’ in an e mail the external patrol. Many Thanks Derek’ - and has little or no reasonable prospect of The Respondent considers it possible that Mr Dunn was transcribing success. the words used by the Claimant to him and avers that it cannot - This claim is 5 years out possibly be said that the words are ‘disgraceful’ or related to or of time, the cogency of because the Claimant is Asian. evidence is clearly impacted and the Respondent prejudiced by the passage of time 16(b) In and after March 2022, As per 7a. The Respondent avers this is - res judicata Mr Williams, Ms McKenzie, and The Respondent’s position is that if the Claimant had been of a - an abuse of process Mr Atherton different race her treatment would have been identical. - ove 904 days (2 years 5.5 months) out of time were unsupportive of the Claimant when she alleged she was assaulted by a colleague. They disbelieved her and accepted Mr Shah’s account; 16(c) After December 2023 As per 7d but clearly unrelated to race. 116 days out of time. Claimant had not worked the supervisor, Mr Dunn, using since 23 May 2024. the ladies/accessible toilet again and leaving mess on the toilet seat almost 4 – 5 shifts during the Claimant’s shift set; 16(d) Management and This is denied supervisors refusing to engage with the Claimant and ignoring her (which the Claimant believes shows the Respondent believed Asian woman were very rude and uneducated) specifically; See 7e. Mr Dunn did not ignore or refuse to engage with the Claimant 116 days out of time. 16(d)(i) Withdrawn & dismissed They dscussed her slip. 16(d)(ii) Jonathon Williams not As per 7f At least 116 days out of time talking to the Claimant directly whenever he was in a group of people, ignoring the Claimant’s presence when he attended site once or twice a month, failing to reply to the alarm activation and in May 2024, not taking the Claimant seriously when she attempted to report concerns about the unlocking doors and intruder alarms and matters to her 16(d)(iii) Mark Wills on 4 October 2024 during the As per 7l and m None grievance. 16(e) Ignoring the claimant’s There was nothing in the fit notes or interactions with the Claimant to 115 days out of time suggest the Claimant’s mental health was impacted by the slip. mental health in relation to the slip incident on 22 May 2024; 16(f) Mr Dunn asking her As per 7e. 116 days out of time ‘how did you manage to slip?’ on 23 May 2024, whilst laughing, after the Claimant’s slip in the grounds of VMO2; 16(g) Mr Wills saying that he As per 7l None could not believe that Mr Dunn would do the things which the claimant alleged in the Claimant’s grievance hearing on 4 October 2024; and 16(h) On 4 October 2024, Mr As per 7m None Wills failing to take the claimant’s grievance seriously and support the Claimant.

[17]Were those acts less favourable To be decided by the Tribunal See above The Respondent says that a hypothetical comparator of a different treatment than a hypothetical comparator race would have received the same treatment. would have been treated?

[18]If so, was the treatment because of race, To be decided by the Tribunal See above The Respondent says that race played not part in the treatement of the Claimant being Asian? the Claimant.

Remedy

[19]If the Claimant is successful in any of her To be decided by the Tribunal claims, what compensation is she entitled to for:a. Basic award;

b. Compensatory award; and/or

c. Consequential financial loss;

d. Injury to feelings

e. Interest?