Rahman Lowe secure Unfair Dismissal and Victimisation Judgment for University of the Arts London Equality & Diversity Officer

Ms Rahel instructed Zillur Rahman of Rahman Lowe Solicitors and barrister Patrick Tomison of Outer Temple Chambers to bring a claim of failure to make reasonable adjustments, victimisation and unfair dismissal against her previous employer, University of the Arts London (the Respondent).

Background

Prior to her dismissal in October 2021, Nina Rahel held the position of Equality & Diversity Officer for a period of nine years, a job she loved and was committed to.

In August 2020, Ms Rahel was asked to complete a Planning, Review and Appraisal form (“PRA”). The PRA form was used to provide employee feedback on issues of wellbeing, achievements, challenges, work priorities, support and development and would be uploaded to the HR system as required by the PRA policy. In the PRA , Ms Rahel  accused the University of being incapable of a correct response to accusations of racism, giving an example of them offering coaching, rather than counselling, to students and staff, who experienced racism. She also stated that “[m]aybe [her] impairments, [her] age and [her] experience [were] all too much for [the respondent] to manage”.

Ms Rahel’s PRA form was not uploaded to the HR system by her manager, Ms Isabella Chan (Head of Equality, Diversity & Inclusion), as the policy required Ms Rahel heard no further from Ms Chan about this.

In or around December 2020, Ms Rahel’s manager decided to restructure the Equality & Diversity Team. The impact of her proposal had a direct impact on one member of staff, Ms Rahel.

In January 2021, Ms Rahel was given the Consultation Document that stated her role “will be deleted with no immediate suitable alternative employment.” However, the new proposal envisaged new roles of EDI Manager for Staff and Students (the same band as Ms Rahel’s role), EDI Officer and EDI Disability Officer (both a band lower than Ms Rahel’s role). Despite the role of EDI Manager being almost identical to her current role, Ms Rahel was told that the role had not been identified as a suitable alternative role.

Ms Rahel expressed her dissatisfaction with the redundancy process to the Vice Chancellor of the University in April 2021, making complaints of discrimination on the grounds of disability, age and race.

On 1 June 2021, Ms Rahel was signed off work by her GP until 13 July 2021 due to work stress. Therefore, she asked for an alternative means of assessment for the EDI Manager post as a reasonable adjustment. This request was denied by Ms Chan, and Ms Rahel was offered an interview on 16 June 2021 (whilst she was still on sick leave). On 8 June 2021, her line manager advised Ms Rahel that she was referring her to Occupational Health (“OH”) to seek their advice regarding any additional adjustments for the interview.

Ms Rahel responded on 15 June 2021 to confirm that she was not well enough to interview.

Ms Rahel received her OH Report on 25 June 2021. It recommended completion of a stress-risk assessment and confirmed that she was not fit for interview, but that the assessor was confident she would have a reliable attendance and performance in the future.

On 1 July 2021, Ms Rahel received a letter giving her three months’ notice of redundancy, her last day of employment would be 5 October 2021.

On 13 July 2021, Ms Rahel was signed off work again until 13 August 2021. She was later signed off again until 5 October 2021.

Despite repeated requests that the recruitment process be paused until she was well enough to interview, up until the date of her dismissal, Ms Rahel was not afforded the opportunity to interview for the EDI Manager role, or the EDI Officer and EDI Disability Officer roles.

Judgment

Victimisation

Whilst Ms Rahel did not succeed with her claim for disability discrimination, she was successful in her claim victimisation where Employment Judge Klimov found the real reason Ms Rahel was dismissed was because she had raised complaints about discrimination in the PRA document in August 2020. The Tribunal found that as of December 2020 (or possibly earlier), Ms Chan “had decided to dismiss the Claimant for redundancy”.

When considering the events following the PRA document, the Tribunal found that Ms Chan “decided to simply ignore the Claimant’s comments and not bring them to the HR’s attention.”  Employment Judge Klimov stated that “the lack of action on her part to deal with these complaints is very surprising, to say the least, especially from the Head of the EDI function.”

Unfair dismissal

Employment Judge Klimov also found in favour of Ms Rahel that she had been unfairly dismissed. He found that the University failed to show that the true reason for Ms Rahel’s dismissal was redundancy or restructure, and rather extraordinarily stated that, “if the Tribunal had examined the case on the premise that the reason for the dismissal was redundancy and/or restructuring, it would still have found that the dismissal was unfair because the decision to dismiss the claimant was pre-determined.”

He further stated that there was “no material difference between the Claimant’s role and the EDI Manager Band 5 role” and that the restructure was “used as a means of dismissing the Claimant by eliminating her job and making it virtually impossible for her to secure a job in the new structure.”

He gave the opinion that Ms Rahel’s line manager’s evidence consisted of “illogical, contradictory and self-service statements and answers.” The Tribunal made a number of highly critical comments about the University which you can find at the bottom of this article.

Zillur Rahman, who represented Ms Rahel, said:

“I am truly delighted for Nina. She showed enormous courage in challenging what she considered was unfair and discriminatory right from the beginning. What is an aggravating feature in this case is that Nina worked within the EDI department, whose purpose is to combat discrimination at the University”.

Ms Rahel said:

“I finally feel vindicated. This ruling and the victimisation I faced demonstrates how so called ‘leaders’ at UAL don’t understand how to apply real EDI in practice. UAL as an institution acted unfairly and in breach of the Equality Act 2010; there should be a clear-out, from the top to the bottom of all those who were involved in unfairly dismissing and victimising me”.

The Tribunal was highly critical of the University

The Judge made a number of highly critical comments about Ms Chan and the HR Director, Zoe Hack as listed below (the square brackets below refer to the relevant paragraph numbers in the Judgment):

• Ms Chan stated in evidence that when she received the PRA form, she told Ms Rahel to change it to reflect the “actual” discussion. This was rejected by the Tribunal who said that Ms Chan did not make any such request and “she decided to simply ignore the comments” [para 20];
• As early as December, possibly earlier, Ms Chan decided she did not want Ms Rahel to be part of the new structure [21];
• Ms Chan was unable to provide a satisfactory answer as to why Ms Rahel was not slotted into the new Garde 5 role and that there was “no material difference between both roles” [40];
• That Ms Hack (HR Director) misled the appeal committee on two occasions [72 and 75];
• That Ms Chan’s evidence was “unconvincing” and in general, “the evidence she gave was less than satisfactory, and in many respects contradictory and self-serving. It was full of logical contradictions, which were laid bare in her cross-examination” [165];
• Ms Chan made a “plainly untrue” statement in her witness statement [167];
• Ms Chan’s evidence about how she went about the redundancy exercise was “confused and contradictory” [168];
• Ms Chan’s “evidence about the rationale for not extending the interview deadline was equally defining any logic… Instead, IC [Isabella Chan] put the claimant under all kinds of pressure to attend the interview before she was even fit to return to work.” [172];
• That, “Moreover, neither IC nor ZH [Zoe Hack] were able to provide a credible explanation about the respondent, on the one hand telling the claimant that the roles were “ringfenced” for her, and on the other hand – pressing ahead with the recruitment process and not showing much (if any) flexibility to accommodate the claimant” [174];
• The Tribunal rejected Ms Chan’s evidence that there “were pressing business needs to fill in the roles” [175];
• The Tribunal found: “There were many more similar illogical, contradictory, and self-service statements and answers in the IC’s evidence to this Tribunal. In short, we found her evidence unreliable and prefer the claimant’s evidence, whom we found a credible and helpful witness” [176];
• That the “…the decision to dismiss the claimant was pre-determined and the respondent was simply going through the motions to see the claimant out” [188];
• “All that, in our view, is more than enough of the evidence from which we could conclude, in the absence of any other explanation from the respondent, that the claimant’s protected acts were the reason for the treatment by IC” [212];
• “As we have found when dealing with the unfair dismissal complaint, the IC’s actions were clearly unfair and unreasonable, and even heavy-handed. You would not expect such actions towards someone you have “wonderful” relationship with and want to remain in your team” [221].

– Friday 11 July 2024