Mrs G R Vasiliu v Amazon UK Services Ltd: 1300826/2022 and 1302792/2022
EMPLOYMENT TRIBUNALS
Case No 1300826/2022, 1302792/2022
Between
Mrs G R VasiliuClaimantAmazon UK Services LimitedRespondent
Before
Employment Judge FloodIn person for claimantMiss Taunton (instructed by Counsel) for respondentDate 11 June 2024
JUDGMENT
[1]The claimant’s application to amend her claim to add complaints under ss 44 (1A) (a) and (b) and 100 (1) (d) and (e) Employment Rights Act 1996 (‘ERA’) is refused.[2]The claimant’s claim for automatic unfair dismissal on the grounds of having made a protected disclosure under section 103A ERA has little reasonable prospect of success. The claimant is ORDERED to pay a deposit of £50 no later than 21 days from the date this Order is sent as a condition of being permitted to continue to advance this complaint.
REASONS
[1]The claimant was employed by the respondent from 7 May 2021 until 26 or possibly 27 March 2022. She was employed under a fixed term contract dated 7 May 2021 (shown at pages 221-234) working as an FC Associate at the respondent’s BHX1 ad BHX2 distribution centres which was originally due to terminate on 22 January 2022. The claimant says her contract was extended by a verbal agreement in September 2021 (after which she signed a contract in December 2021) and was due to run until January 2023. She alleges that she was dismissed having made protected disclosures in November and December 2021. The respondent alleges that it extended her original contract until March 2022 and it terminated on the expiry of that extension (because of business consideration and staffing needs).[2]The claimant commenced a period of ACAS early conciliation (‘EC’) on 14 December 2021 and EC certificate (reference number R201349/21/07) was issued on 17 December 2021 (page 1). A further EC certificate (reference number R201350/21/95) was issued on 19 January 2022 (page 14). A claim was presented on 17 January 2022 (claim number 1300804/2022) (pages 2-13) which was subsequently dismissed upon withdrawal (page 43). The claimant presented a further claim (claim number 1300826/2022) (‘Claim 1’) on 19 January 2022 (page 15-29). This brought a complaint of disability discrimination and the claimant also ticked the box stating that she wished to bring another type of claim. In the narrative section of that claim form, was included the following: “..in November 2021 06 I developed new covid symptoms and I tested positive for the covid, but my employer invited me to cancel the app and ignore the NHS requests and immediately resume work activities. BECAUSE I refused to comply with his requests, he began to lower myself psychologically, changed my pay status and threaten me not to extend my employment contract.”[3]The claimant commenced a further period of early conciliation on 21 March 2022 and a further EC certificate (reference R134246/22/09) was issued on 1 May 2022. She then presented a claim form (claim number 1302792/2022) (‘Claim 2’) on 31 May 2022 (page 45) which brought complaints of unfair dismissal, disability discrimination and also “another type of claim which the Employment Tribunal can deal with”. This complained that the respondent “fired me because I sued them in court” and that “they invited me to come covid positive at work (In October 2022) and I refused and my employer began his discriminatory path towards me”. Claim 1 and Claim 2 were subsequently consolidated.[4]A preliminary hearing in private for case management was held before Employment Judge Noons on 9 September 2022 at which attempts were made to clarify the complaints. The case management order sent after this hearing (page 99-108) recorded that the claimant brought complaints of:(a) automatic unfair dismissal by reason of whistleblowing or making a protected disclosure,(b) detriment by reason of whistleblowing or making a protected disclosure and(c) disability discrimination. The case summary recorded was that the claimant’s case on the protected disclosure matters were that she was “badly treated by the respondent because she raised with them that they were in breach of the COVID 19 guidelines in relation to self isolation”. The claimant was ordered to provide further information on the detriments she said she was subjected to and he claim for disability discrimination.[5]There was a further preliminary hearing in public before Employment Judge V Jones on 17 March 2023. Strike out applications made by the respondent (to strike out the claimant’s automatic unfair dismissal complaint) and the claimant (to strike out a response) were both dismissed. Judge V Jones also refused an application made by the claimant to amend her claim by adding additional protected disclosures. The respondent’s application to strike out part of the disability discrimination claim (about events before 11/13 December 2022) was considered and ultimately those complaints were dismissed with consent. There was further case management discussion at this hearing and the List of Issues was clarified together with the parties. Judge V Jones recorded in her order (page 144-5): “Some time was therefore spent at the outset of the hearing obtaining further particulars from the Claimant and revising the list of issues accordingly, A final agreed list of issues is attached to this Order”. A four page document headed “REVISED AGREED LIST OF ISSUES” was attached to that order (page 149-152).[6]A further preliminary hearing in private was held before Employment Judge Harding on 4 July 2023 which was intended to make case management orders and list for final hearing. In advance of that hearing on 28 June 2023 the claimant made an application to amend her claim. This included the following: “I wish to make the following amendments to my initial claim to better reflect the relevant aspects of the case and highlight the employer’s violations and irregularities: -Addition of a new claim: Neglect of health and safety obligations during work activities” Judge Harding recorded in her order following this hearing that it was not clear what legal claims the claimant wished to add and there was then a long discussion at the hearing about what claims the claimant wished to add. Having provided the claimant with a copy of section 44 of the ERA during a break the claimant said she wanted to make claims under section 44 (1A) (a) and (b) and also section 100 (1) (d) and (e), acknowledging that neither of those claims was made in the written application. Judge Harding recorded the claim that the claimant wished to make as follows: “8. The claimant puts these claims in the following way. It is the claimant’s case that she refused to attend work, in the alternative took appropriate steps to protect herself or other persons by refusing to attend work, on the following dates; 6 – 16 November 2021, 13 December 2021, 10 and 11 January 2022 and 7 February 2022. It is the claimant’s case that she did this in circumstances of danger which she reasonably believed to be serious and imminent, namely that the respondent was requiring workers who had tested positive for Covid 19 to attend work when they should have been isolating.[9]The detriments which the claimant asserts were done on the grounds that the claimant took these steps are:9.1 Between 7 – 13 November 2021 Christina Petrescu and Iona Mataoanu insisted that the claimant come into work when she was supposed to be isolating.9.2 On 11 December 2021 Ms Petrescu called the claimant into a disciplinary meeting.9.3 Between 13 December 2021 - 9 February 2022 the claimant’s manager Sanvir Khunkun instructed the claimant on several occasions to attend work. Section 100 ERA[10]On 19 March 2022 the claimant’s contract was terminated.” 7. As there was insufficient time to deal with this matter, it was listed for a further preliminary hearing in public which was listed for 4 December 2023. On 17 November 2023, the respondent made an application for a deposit order to be made in relation to the claim of automatic unfair dismissal under section 103A ERA. The hearing due to take place on 4 December 2023 was postponed due to lack of judicial resources and relisted for 12 January 2024. 8. This matter therefore came before me to determine:(1) whether to allow the claimant to amend her claim as above,(2) whether to order the claimant to pay a deposit (not exceeding £1,000) if it seems that her section 100 complaint had little reasonable prospect of success. For the purposes of the hearing, I had before me the following documents: 8.1. Skeleton argument prepared by Miss Taunton on behalf of the respondent;; 8.2. Bundle of Documents for Preliminary Hearing 4 December 2023 (‘Bundle’); 8.3. Bundle of Supplementary Documents (‘Supplemental Bundle’); and 8.4. Bundle of Authorities prove by the respondent (‘Authorities Bundle’). 9. The claimant had not prepared a written witness statement in advance but I permitted her to give oral evidence by answering some questions put to her by the Tribunal. She was also cross examined by Miss Taunton. As it was 3.15 pm by the time evidence and submissions were completed, I decided to adjourn the hearing for a reserved decision to be made. Some brief case management discussions took place which are the subject of a separate case management order. The Issues 10. The issues I had to determine were as follows: 10.1. Whether to permit the claimant to amend her claim to add complaints of under ss 44 (1A) (a) and (b) and 100 (1) (d) and (e) ERA 10.2. Whether to order the claimant to pay a deposit (not exceeding £1,000) if it seemed that her complaint for automatic unfair dismissal on the grounds of having made a protected disclosure had little reasonable prospect of success.
The relevant law
[11]Rule 29 of First Schedule to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (amended and reissued on 22 January 2018) (“the ET Rules”) together with due consideration of the overriding objective in rule 2 of the ET Rules to deal with the case fairly and justly, gives the Tribunal power to amend claims and also to refuse such amendments.[12]The Tribunal’s power to make a deposit orders and the tests be applied to each application are set out in Rule 39 (Deposit Orders) of the ET Rules.[13]The relevant part of Rule 39 states: “Where a tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success it may make an order requiring a party, the paying party, to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument.”[14]In relation to the application to amend, the leading authority is Selkent Bus Co Limited v Moore [1996] ICR 836, EAT: “(4) Whenever a discretion to grant an amendment is invoked the Tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. (5) What are the relevant circumstances? It is impossible and undesirable to attempt to list them exhaustively, but the following are certainly relevant: (a) The Nature of the Amendment Applications to amend are of many different kinds, ranging, on the one hand, from the correction of clerical and typing errors, the additions of factual details to existing allegations and the addition or substitution of other labels for facts already pleaded to on the other hand, the making of entirely new factual allegations which change the basis of the existing claim. The Tribunal have to decide whether the amendment sought is one of the minor matters or is a substantial alteration pleading a new cause of action. (b)The Applicability of Time Limits If a new complaint or cause of action is proposed to be added by way of amendment, it is essential for the Tribunal to consider whether that complaint is out of time and, if so, whether the time limit should be extended under the applicable statutory provisions, e.g. in the case of unfair dismissal section 67 of the Employment Protection (Consolidation) Act 1978. (c) The Timing and The Manner of the Application An application should not be refused solely because there has been a delay in making it. There are no time limits laid down in the Regulations of 1993 for the making of amendments. The amendments may be made at any time – before, at, even after the hearing of the case. Delay making the application is, however, a discretionary factor. It is relevant to consider why the application was not made earlier and why it is now being made: for example, the discovery of new facts or new information appearing from documents disclosed on discovery. Whenever taking factors into account the Parliament considerations are relative injustice and hardship involved in refusing or granting an amendment. The question of delay, as a result of adjournment, and additional costs, particularly if they are unlikely to be recovered by the successful party are relevant in reaching a decision.”[15]I was also referred to the cases of Chaudhry v Cerebus Service Security and Monitoring Services Ltd [2022] EAT 172 and Abercrombie v Aga Rangemaster [2014] ICR 209 which cited Selkent and clarified that n determining the nature of the amendment and whether it amounts to an entirely newcause of action, what matters is the extent to which the factual and legal issues raised by the amendment differ from the existing claim.[16]Miss Taunton also asked the Tribunal to consider the case of MacFarlane v Commissioner of Police of the Metropolis [2023] EAT 111 firstly for authority for the proposition that there is no rule of law that a claim of automatically unfair dismissal under s.103A ERA 1996 is the same cause of action or same type of legal complaint as an existing complaint of unfair dismissal and also that a Tribunal when considering amendment was entitled to take into account what the party applying had themselves said about the claim at a previous hearing.[17]In relation to strike out applications, guidance been given by the House of Lords in the case of case of Anyanwu v South Bank Students’ Union [2001] ICR 391, and the Court of Appeal in Ezsias v North Glamorgan NHS Trust [2007] ICR 1126, and by Lady Smith in the Employment Appeal Tribunal in Balls v Downham Market High School and College [2011] IRLR 217. The former two cases made the point, that in cases of discrimination and whistleblowing respectively, that a strike out on the basis of no reasonable prospect of success should only arise in an exceptional case when central facts are not in dispute. Lady Smith in the Downham Market High School case noted that it was not a question of assessing whether a claim was likely to fail or whether its failure was a possibility but that the claim had no reasonable prospect of success and that the tribunal should assess this from a careful consideration of all the available material. I am required to take the claimant’s pleaded case at its reasonable highest and it is not the role of the judge hearing a preliminary hearing to conduct a mini trial on partial evidence. The test under rule 39 is “less rigorous than under rule 37 and I am not limited to considering whether the claimant meets the threshold of having set out a prima facie case turning on real factual disputes but may go on to form a view as to whether the claimant is likely to be able to make out their case on the facts (Van Rensburg v Royal Borough of Kingstonupon-Thames [2007] All ER (D) 187 (Nov)).[18]I was also referred to the authority of Hemdan v Ishmail [2017] IRLR 228 and the guidance that the purpose of a deposit order is "To identify at an early stage claims with little prospect of success and to discourage the pursuit of those claims by requiring a sum to be paid and by creating a risk of costs, ultimately, if the claim fails.” Further reference was made to Wright v Nipponkoa Insurance [2014] UKEAT/0113/14 namely that "When determining whether to make a deposit order an Employment Tribunal is given a broad discretion. It is not restricted to considering purely legal questions. It is entitled to have regard to the likelihood of the party being able to establish the facts essential to their case.” Conclusions THE AMENDMENT APPLICATION
Conclusions
[19]The claimant’s applications to amend her claim by on 29 June 2023 referred to a wish to add “…a new claim: Neglect of health and safety obligations during work activities”. In the letter making such application the claimant said such amended was justified because the respondent’s actions “reflect a serious breach of health and safety obligations in the workplace by the employer”. She stated that the details she wished to add were present in her ET1 form and that the amendments would not “delay the proceedings or impact the fairness of the procedures” and would assist the Tribunal in making its decision. During the hearing the claimant told the Tribunal that the reason she had only made the application to amend in June/July this year was that the first two preliminary hearings had been focused on defining the case and she understood from those hearings that health and safety at work matters were not within the jurisdiction of the Employment Tribunal. It was only at the third hearing before Judge Harding that the claimant said she realised she had this type of claim when the time was taken to explain these sorts of claims to her. She submitted that there was reference to health and safety matters in her first claim form (at pages 20 and 21) and had consistently complained about health and safety breaches at all the hearings. The claimant acknowledged that before deciding to bring her claim she had tried to seek assistance from various agencies and had spoken more than once to Citizens Advice (who directed her to contact ACAS to start her claim). She acknowledged that there had been a lengthy discussion about her claim at the hearing before Judge V Jones in March 2023 and that she had read the document headed “Revised Agreed List of Issues” attached to the order sent out after that hearing. She submitted that at previous hearings it had not always been clear and that she was suffering from health issues which led her to become anxious and confused during the hearings. The claimant summarised the complaints she wanted to bring by stating that the respondent had put pressure on her and had not respected her period of sickness or respected her isolation period which had an effect on her wellbeing. She submitted that section 44 ERA was there to protect a worker who needed to be absent form their place of work in a situation of serious and imminent danger.[20]The respondent resisted the application to amend firstly because this was a significant amendment to the claim when the Tribunal focused on the substance of the claim not just its legal form. It referred to the Macfarlane case above and suggested that the Tribunal should place weight on the clarifications given by the claimant at two earlier lengthy case management hearings where it was made clear by the claimant what claims were being made (which did not include the claims currently sought). It makes the point that the claims now sought to be added are out of time with the addition of the section 100(1) ERA complaint being sought some 15 months after the effective date of termination of employment and the complaints of detriment under section 44 being even longer out of time. It directs the Tribunal to the provisions of section 48(3) ERA and 112 (2) ERA which provide that complaints must be brought within 3 months unless a claimant can show it is ”not reasonably practicable” for the claims to have been brought in time. It further submits that the claimant has not given any satisfactory explanation why they were not brought in time. The respondent also alleges that the manner of the application (made more than a year after the presentation of claims) and after two lengthy case management hearings were claims were clarified is unreasonable and causes prejudice as the respondent is required to keep responding to a claim on “constantly shifting ground”.[21]In deciding the application I considered the factors identified by Selkent before addressing the balance of prejudice and hardship. I set out the analysis below: Nature of the amendment[22]The amendment requested here is a substantial one. The claim currently before the Tribunal is one of unlawful detriment and unfair dismissal on the grounds of having made a protected disclosure, with the claimant relying on disclosures made to the respondent’s head office in late 2021 about its isolation practices. The detriments relied upon relate to matters that took place at work in relation to her role and the actions of principally her line manager. The amendment relates to an allegation that because she refused to attend work when she had Covid 19, that she was subjected to different detriments by the respondent’s local HR representatives. Although there is cross over in terms of the time periods and types of legal complaint, these are factually distinct claims involving in some cases different individuals. I also take note of the guidance provided in the Macfarlane case above and it is clear that the claimant was given very many opportunities at the three hearings that have already taken place to explain what sort of claim she wanted to bring. Even is she was unaware of the precise legal provisions she wanted to rely on, the facts behind such complaints were not set out as they are now by the claimant either in her claim form or during the first two hearings. In the claim form the reference to health and safety is really an allegation about various breaches by the respondent of its obligations to provide a safe place of work to its employees (which indeed are not claims the Tribunal can determine). Applicability of time limits[23]Clearly were a new claim form to be submitted now on these matters, it would be on its face well out of time. The claimant explains the delay by her lack of understanding of her complaints and these only becoming clear when Judge Harding made reference to section 44 and 100 (1) at the last preliminary hearing in July 2023. Whilst I full appreciate that the claimant is a litigant in person and these are complex complaints, the claimant had been given considerable time and space to explain the claims she wanted to bring and have these clarified and recorded from very early on in the proceedings. The claimant had some advice from Citizen’s Advice and at the very least could have set out the facts behind the claim she now seeks to bring at a much earlier stage. I was not satisfied that the reference to health and safety that was made in the claim form above is sufficient to suggest or indicate that a claim of the nature now sought was what was intended at the time. It is an entirely different and new claim. Timing and manner of the application[24]The application to amend was really only finally clarified at the hearing in July 2023. This is over 18 months after the claim form was originally presented. There were two preliminary hearings already held by this stage at which any applications to amend could have been made (and indeed the claimant had already made applications to amend). The claimant now seeks to add a new type of complaint. I was not satisfied by the claimant’s explanations as to why this was not raised earlier even if not in the precise legal context, by way of a complaint about the facts now sought to be relied upon Balance of prejudice[25]Putting these factors together I concluded that the balance of prejudice and hardship favours refusing the amendment. This is a new and factually distinct complaint raised substantially after the primary limitation period. The respondent will inevitably be significantly prejudiced in addressing the complaint as it now appears to be put as to do so would require additional work that would be burdensome and costly. Additional evidence is likely to be require. The claimant has had ample opportunity to set out what her claim is and make any applications to amend at a much earlier stage in the case. The relative prejudice to the claimant if the application is not granted is proportionally less than the disadvantage to the respondents if it were. She already had significant claims in play which are now getting close to being heard. The effect on these already elongated proceedings would be significant and it would not be in the interests of justice or the overriding objective to expand the claim further.[26]For the above reasons, the claimant’s application to amend is refused. THE /DEPOSIT ORDER APPLICATION[27]The respondent then made an application for a deposit order to be made in respect of the claimant’s complaint that she was automatically unfairly dismissed on the grounds of having made a protected disclosure (section 103A ERA) because it says it has little reasonable prospect of succeeding. It submits that for this claim to succeed the claimant will need to establish that at the time of her dismissal in March 2022, the contract that she was working under had been extended by the respondent until 2023. It submits that the claimant has no real prospect of establishing this because there is no documentary evidence at all to support this position and the text message the claimant relies upon which refers to an extension does not have an end date (see page 248). It submits that it was inherently unlikely that such an extension would ever have been agreed given what it says is the respondent’s policy to restrict its fixed term contract terms to 18 months (relying on an excel workbook drawn from its systems recording its fixed term employees’ “18 Month Date” including the claimant’s being recorded at 16 November 2022 – see page 270). It further submits that the claim is weak given that the claimant’s own manager (against whom the bulk of the detriment complaints are made) in fact extended her contract until 19 March 2022 after the claimant had made her alleged public interest disclosures (see page 268). The respondent contends that its position that the claimant’s contract was extended in January 2022 until March 2022 is in contrast supported by documentary evidence (page 268 and 281-3). It also submits that it has strong evidence supporting the actual reason why the claimant’s contract was not further extended (page 270).[28]The claimant submitted that although she may have been sent e mails regarding a contract extension in January 2022 that she never signed the contract issued at this time. She submits that it was not possible for the respondent to have extended her fixed term contract in January 2022 as she did not provide her consent. She alleged that upon starting work with the respondent she was required to sign a confidentiality agreement (referred to at page 221) and this was also not signed again by her in January 2022 (and thus she cannot have been working under such a contract). The claimant pointed to a number of documents in the Bundle which she says support her position that she was to remain employed until 2023. In particular at page 254 there was a letter sent to her on 26 March 2022 which stated “we expect you to return to work on (DD/MM): 27/03” which she says is after her employment was allegedly ended. She also points to printouts of a timetable that she downloaded from the respondent’s systems before she left employment which indicated that she had shifts allocated in April to October 2022 (pages 256 to 262). She also points out that when she finished her last shift (a night shift starting on the evening of 26 March and finishing the morning of 27 March 2022), she was able to log out and clock out of the systems, so must still have been recorded as an employee.[29]In relation to the application for a deposit order, I have applied the guidance set out in Van Rensburg above. Determining whether a claim has little prospect of success is a less rigorous test than showing it has no reasonable prospect of success. On this basis, I doubt that the claimant will be able to establish the factual and legal matters required of her in relation to this claim. I have listened carefully to what she said and looked at the documents she would rely on referred to above. However I accepted the submission of the respondent that in relation to the confidentiality agreement point, the existing agreement signed at the start of her employment would remain in place irrespective of extensions. No new agreement for confidentiality would ever have been required. The extension letter that was sent to the claimant on 13 Janaury 2022 (which she did not sign) clearly states that all other terms and conditions remain in place (page 268). I am also of the view that the documents the claimant directed me to in terms of calendars had no status as indicator of the contractual position. The e mail sent to the claimant on 26 March was clearly an autogenerated e mail and does not appear to be to shed any light on whether the claimant was to remain employed until 2023. The glaring absence of any documentary evidence which supports that the claimant was offered and signed a contract extension in December 2021 extending her employment until 2023 is significant and is a significant weakness in the claimant’s case. I therefore conclude that her claim that the respondent has unfairly dismissed the claimant on the grounds of having made a protected disclosure has little reasonable prospect of success and therefore it is appropriate for me to order the claimant to pay a deposit not exceeding £1,000 as a condition of being able to continue to advance this claim.[30]I have considered the level of such a deposit and am aware that I must make reasonable enquiries into the ability of the party to pay the deposit and have regard to any such information when deciding the amount of the deposit. The claimant gave evidence about her financial position at the hearing and I was satisfied that the claimant has very little disposable income remaining (if any) after she has paid the outgoings required to support her and her family. She relies on ad hoc support from family members and has no savings.[31]I considered in light of the above, and the submissions made on this at the hearing itself, that the appropriate level of deposit is at the level of £50. The claimant is therefore ORDERED to pay a deposit of £50, if she wishes to pursue this complaint of automatic unfair dismissal on the grounds of having made a protected disclosure (section 103A ERA).
FACTS
[32]Ms. Reeves noted that the claimant wanted an independent investigator, so Gary Norton, site manager passed the investigation on 22 November 2021 to Miss. Sherrie Osborne, Senior HR Business Partner at the respondent’s BHX4 distribution centre to consider the claimant’s complaint following the claimant reescalating the matter (page 687-692). The claimant was unaware that Seattle had not appointed Miss. Osborne.[33]On 28 November 2021 page 456 to 457 the claimant had a meeting via Chime with Sherrie Osborne at Head Office. There was a dispute of evidence as to whether the meeting was recorded; the claimant said that it was. Miss. Osborne said it was not; Amazon’s practice was not to record meetings but a note is kept. The Tribunal on the balance of probabilities preferred the evidence of Miss. Osborne that the chime meeting was not recorded in accordance with the general practice at Amazon.[34]The claimant informed Miss. Osborne she was unhappy that HR had called her and told her she could return but she could not confirm who had told her to come back to work. The claimant described this as a critical issue for the company that HR had called her during her isolation. Miss. Osborne stated that guidance was changing on isolation from the government and she had initially reported she was still unwell and it would cause confusion on coding. The claimant stated that she did not feel safe due to this experience. Miss. Osborne explained that many safety measures had been put in place. The claimant contends that she advised Ms. Osborne that other people were being forced to come into work whilst they had COVID. There was a dispute of evidence about this. Miss. Osborne in her witness statement at paragraph 3.13 stated that at no time during this particular meeting did the claimant tell her that any other associates were required to return to work whilst testing positive for COVID or show her any documentary evidence that this was the case. The Tribunal preferred the evidence of Ms. Osborne taking into account the notes of the meeting at page 456 to 457 that make no mention of the claimant raising a concern that others were being forced to return to work with COVID.[35]Under cross examination, the claimant disputed the respondent’s evidence that she became upset at the meeting. The Tribunal did not accept the claimant’s evidence because as a response to the claimant becoming upset, she was referred to OH and informed about EAP on that date. Further it is noted, and the claimant accepted, that she stated at page 437 that she felt unsafe because of her experience.[36]On 29 November 2021 (page 462) the claimant requested a formal meeting. Miss. Osborne arranged this to take place with Mr. McRae on 13 December 2021. OH Report[37]The OH report dated 4 Dec 2021 (p.463) stated that the claimant was fit for work with short term or temporary adjustments until 5 February 2022. It was noted there were some concerns about the claimant’s psychological well-being and the claimant was advised to contact the mental health practitioner. The OH specialist advised that the claimant be exempted from overtime and to work only her contracted hours of 40 hours for the next 8 weeks to manage fatigue. It was also suggested that her targets be reduced for the next 8 weeks to manage chest pains by allowing her to pace herself. The OH specialist stated that the claimant was unlikely to be covered by the Equality Act. Absence procedure[38]Unauthorised absences occur when an associate does not have a valid reason for an absence. No call and no shows occur when employees do not notify an absence at all. An investigation meeting takes place as a fact-finding meeting and no formal invitation letter is issued and associates were not invited to bring a companion as there is no potential disciplinary outcome. The outcome can be that no further action is taken or that the matter will proceed to a disciplinary hearing for disciplinary action if there is evidence of misconduct.[39]Informal health reviews are triggered when an associate has three different instances of sickness related absence (or over 80 hours for full time employees) of sickness in a six month period. The informal health reviews involve a 1 to 1 informal meeting between the associate and a manager to discuss the reason for the absences and any contributing factors. The manager explores any support needed to ensure the associate can attend work. The outcome may be that no further action will be taken or to proceed to a formal health review meeting. A formal health review meeting takes place with HR in attendance where the number frequency and level of absences are discussed along with reasons for absences, the likelihood of further absence and any reasonable support that can be provided to enable the associate to attend work. The associate receives a formal invitation letter and is entitled to be accompanied by a colleague or trade union representative the outcome may be that no further action will be taken or that Amazon will issue a letter of concern regarding absences. Meeting 11/12 December 2024[40]On the evening of Saturday 11 December 2021, Ms. Petrescu, HR Partner, undertook a review of outstanding meetings. She noted that the claimant was due an informal health review and separately an investigation both of which could be progressed that day. The informal health review was triggered by a period of absence from back pain from 9 October 2021 to 21 October 2021 (see page 395). The claimant had had a formal health review scheduled for the following Monday in relation to a separate absence and the ill health review needed to take place before that so the absence covered by the ill health review could be included in and considered at the formal health review meeting. The separate investigation was in connection with an unauthorised absence on 3rd September 2021 when the claimant reported she could not attend work due to a family emergency but had provided no details (see page 685).[41]Associates are required to provide details at the time of reporting the absence such as the nature of the emergency and to what family member it related. The investigation meeting was to understand the reason for the absence and ascertain whether further action was needed. Miss. Petrescu planned to undertake the investigation meeting with the claimant along with Mr. Demeny (who was assisting HR at that time) and the claimant was invited to attend a meeting at 8:50pm.[42]Upon Miss. Petrescu entering the meeting on 12 December 2021 (see page 475) the claimant started crying stating that she did not want to be investigated without having somebody she trusts next to her, and she had been told by doctors that she is predisposed to heart attacks and needs to calm down. The claimant stated she had been gravely wronged by Amazon and she did not want Miss. Petrescu to participate during the meeting as she had been part of the wrongdoing. Although the claimant did not provide any details Miss. Petrescu apologised to her and assured the claimant, she would support her. There was a formal health review booked for the following Monday and an investigation would occur on Tuesday and that she could be accompanied by another colleague. Miss. Petrescu said there was no formal invitation to a fact-finding meeting and the claimant agreed that the meeting could proceed.[43]At about 2.30 am the claimant attended at the HRAP desk again upset and crying stating that Miss. Petrescu had lied; was trying to trick her; was doing something illegal to her. Miss.Petrescu tried to intervene to understand what had happened, repeating that the claimant would not be investigated until Tuesday and tried to explain to the claimant the different types of meeting. The claimant started screaming that she needed an ambulance and was afraid of Miss. Petrescu and could not be left alone at the HRAP desk without a manager. Miss. Petrescu called first aid and the claimant was taken to a meeting room. The claimant did not wish to engage with HR stating that she was having a meeting with more important people. The claimant’s partner was contacted and waited for the claimant in the car park. The claimant refused to leave until the ambulance arrived. The claimant actually left at 5.05a.m. with her partner. The events are recorded in a contemporaneous email dated 12 December 2021 at page 477.[44]There is a dispute of evidence as to whether Ms Petrescu told the claimant she was at risk or she was going to be investigated for gross misconduct. On the balance of probabilities, the Tribunal found that Miss Petrescu did not say this to the claimant; the purpose of the meeting was simply to understand the reason for the claimant’s unauthorised absence. There was also a dispute of evidence as to whether Miss. Petrescu said to the claimant “don't tell me what regulations I have to follow”. The Tribunal did not find, on the balance of probabilities, that this was said either by Ms. Petrescu and accepted the evidence of Miss. Petrescu. The Tribunal found Miss. Petrescu to be a conscientious professional who remained so throughout the meeting and who had made a contemporaneous note of the discussion at page 476 to 477 after the interaction with the claimant. The note does not contain any of the serious allegations made by the claimant.[45]The claimant also made a very serious allegation against Miss. Petrescu that she had said to the claimant on 11 December 2021 so to mock the claimant every time she walked past staring “you see that you urinated on by piss”. This allegation was not mentioned in a grievance or any complaint by the claimant (complaint dated 12 December 2021 timed at 16.51; see page 480). The claimant was keen to complain and escalate matters of concern; although the claimant complained about Ms. Petrescu in her email to Mr. Norton, the Tribunal noted it is in very general terms. The Tribunal was confident that if Ms. Petrescu had actually said these words to the claimant, the claimant would have complained directly and specifically about it. Furthermore, Miss. Petrescu was a conscientious professional and the Tribunal finds it unlikely that Miss. Petrescu would say anything like this. The Tribunal also refers to its paragraph on credibility below. Claimant’s email 12 December[46]The claimant sent an email to Gary Norton site manager on 12 December 2021 (p. 480). In the email the claimant requested Mr. Norton to intervene and immediately stop abusive actions, psychological harassment and marginalisation of health claims perpetrated against her. The claimant said she had expressed her disagreement to participate in any type of meeting because she was in a sensitive state of high stress as shown by her medical report. She said she had a panic attack when she met Miss. Petrescu; she was put through an investigation meeting although she expressed disagreement. Meeting 13 December 2021[47]On 13 December 2021 (page 482- 491) the claimant met Ms. Osborne and Tim McRae. The claimant was accompanied by Mr. Pirvu. The claimant was invited by Mr. McRae to set out the background of her complaint. The claimant explained that following a second positive COVID test she spoke to the attendance line who told her to come back to work as her isolation had been completed and to get a GP sick note. She had sent the isolation note and the HR team requested a fit note so she was coded no show as opposed to sick. The claimant could not recall who she spoke to, but she was required to attend work despite having an isolation note. The claimant told Ms. Osborne she wanted Amazon to enforce the rules on Health and Safety in the workplace. The claimant enquired why Amazon had not tested others when aware of her COVID and they had an obligation to report to RIDDOR. The claimant said another person had been required to attend work (Page 486) but she could not say the name. She said she had proof they are so scared in this situation and to respect the private rules. The claimant was given an opportunity to set out her concerns. There was a dispute of evidence as to whether the claimant (as she contended) showed the respondent documentary evidence that it was not just her who was being required to work whilst they had COVID. The respondent disputed this.[48]On the balance of probabilities, the Tribunal preferred the evidence of Miss Osborne which was corroborated by Mr McRae that the claimant did not during the grievance hearing show any documents about another individual or give a name of any other person similarly affected by alleged pressure to breach COVID-19 isolation rules. The claimant did allege there was another person in a similar situation to her but did not name them.[49]The claimant stated that she was unwell and Mr. McRae stated that she should go home if unwell and it would be treated as sick leave under the policy.[50]Following this meeting Miss. Osborne undertook an investigation. She was unable to investigate the other individual alleged to have been required to attend work with COVID because the claimant had not provided a name. Miss. Osborne sought to meet with the claimant to provide a response to the grievance on 3 January 2022; 15 or 17 January 2022. The claimant was unable to attend, and the claimant was sent the findings of the grievance via a letter. Welfare Meeting[51]On 14 December 2021 Mr. Sanvir Khunkhun, operations manager, had a welfare meeting with the claimant (page 492) to discuss the occupational health report dated 4 December 2021 (page 463). Adjustments to be made to the claimant’s working practices included an exemption from working overtime for 8 weeks; 2 additional 15 minutes breaks per shift and the ability to take other breaks if needed and a reduction in performance to be taken into account. Mr. Khunkhun informed the claimant that these temporary adjustments would be made and he would inform other managers. The Tribunal accepted that Mr. Khunkhun in accordance with his evidence, did tell other managers about the temporary adjustments in place. The claimant was happy with this support and signed the welfare meeting note on that day. The claimant wished to “to make a small change to the statement that is I get support from Amazon except the HR team because they have caused me further damage by exposing me to a situation of deception and aggravating my state of health” (see page 593). Grievance Outcome Letter[52]The grievance outcome letter dated 17 January 2022 (page 516-517) informed the claimant that she had been provided with the incorrect return to work date by two members of the human resources associate partners team requesting her to return on 10 November instead of 16 November 2021. The letter stated that when reporting a continuation of isolation, the advice to request a fit note and code as sick pay in line with current company process was correct. Miss. Osborne found that the changes in information provided by the claimant’s continued absence may have had an impact on the advice being given by the local HR team and this part of the grievance was upheld.[53]In respect of the claimant's concerns about this issue happening on other occasions making the workplace unsafe, Miss Osborne found that there was no evidence of a widespread issue at the site. Mr. McRae had explained that the COVID pandemic was a complex situation with government guidance changing frequently. Amazon had produced a large number of robust policies working closely with local health authorities to ensure the safety of all working staff at Amazon sites. Miss Osborne found there was no case to answer. Miss. Osborne stated that retraining on current government and Amazon guidance on self isolation for employees would be provided. Further OH report[54]The claimant was referred by the respondent for another occupational health assessment in 25 January 2022 (page 540 to 544). The OH report stated the claimant was temporarily unfit for work and likely to return to work on 30 January 2022 if she tests negative to COVID virus. Further the OH specialist stated he considered the claimant’s symptoms relating to long COVID and depression to be a grey area regarding the disability component of the Equality Act 2010; “good practise would be to consider the requirements potentially under this act with these in my opinion primarily relating to operational capability to accommodate associated ongoing sickness absence in the future”. Process of extending contract[55]Mr. Yates, HR Business Partner gave detailed evidence about the manner in which extensions to contracts are dealt with at Amazon. He is responsible for communicating the extension of contracts which could be up to 2000 contracts in any one period. His evidence, which the Tribunal accepted, was that Amazon take a structured approach in respect of extending contracts of employment. The labour planning team first review the labour plan requirements. Once the number of extensions has been agreed and published in the labour plan, the task then comes to local HR to review the current fixed term contract (FTC) populations for potential extensions or releases. The HR team use a network calibration tool that sorts associates into categories based on a number of factors including productivity performance quality score and attendance. The tool does not have any direct manager input and is generated solely based on system based metrics. Amazon has a maximum tenure for fixed term contracts to be employed capped at 18 months from the date of their last hire date. The Amazon FTC procedure does not extend contracts of associates who were calibrated as an N rated associate in terms of performance to benchmark curve. Once these associates were removed, the labour planning team assesses the headcount requirement against eligible fixed term contract employees. The fixed term contract extension process is driven by labour planning and headcount considerations. Multiple factors feed into the calibration of associate ratings which determine which FTC associates will be extended to fulfil headcount requirements the network calibration tool does not have any direct manager input and is generated solely based on metrics. Extension of the claimant’s fixed term contract[56]There was a significant dispute of evidence as to whether the claimant’s contract was extended to January 2023. The claimant’s evidence is that her contract was extended in December 2021 until January 2023 by her manager Mr. Sanvir Khunkhun. The claimant relied upon a chime message (page 594) which stated “thank you are really good news, I really appreciate that you extend my contract bless you..” To which, Sanvir replies “you're welcome”. The full trail of the chime messages between the claimant and her manager were not disclosed by the claimant. Chime messages automatically delete after a short period of time. Above the message relied upon by the claimant, there is a partial message that states “quote unpaid please”. The full content of the messages between the claimant and her manager have not been disclosed by the claimant and the email relied upon by the claimant did not refer to the period of time the employment contract had been extended to nor whether it actually refers to an employment contract extension. The claimant gave evidence that she had gone into the office on or about 22 December 2021 and been handed a computer by Mr. Khunkhun and actually digitally signed off an extension to her contract to 2023. The respondent disputed this; Mr. Sanvir Khunkhun disputed that he had ever extended the claimant’s contract and Mr. Yates in his evidence had described the process (set out above); Mr. Khunkhun had no authority to extend any employee’s contract; that is the remit of Mr. Yates’s role.[57]On the balance of probabilities, the Tribunal determined that it was unlikely that Mr. Sanvir Khunkhun extended the claimant’s contract until January 2023 or at all and rejected the claimant’s evidence. The respondent’s policy was to provide fixed term workers with a maximum of 18 months contract only after the last extension. To have extended the claimant’s contract to January 2023 would have been in excess of this period. Further the claimant had no copy of the alleged signed contract for the alleged further period until 2023. She had checked her personal yahoo account and the alleged extended contract was not available. The documentary evidence indicated that the claimant received an automated email on dates 13 January page 512; 17 January 2022 page 518 and 21 January 2022 page 539 which indicated that the respondent had proposed that the claimant’s contract be extended until 19 March 2022. The respondent had no record of any contractual extension to 2023 (see page 252 paragraph 1.9.) Mr. Khunkhun has no authority to extend an employee’s contract of employment that is the remit of Mr. Yates’ team.[58]In cross examination of Mr. Yates, the claimant suggested she had not accepted the extension to March 2022 because she did not sign the contract. Mr. Yates accepted that the claimant had not signed it and his department did not check whether an employee had signed the extension usually because there are such a large amount of employees contracts extended at one time. He said usually employees were happy with an extension to a contract and unless they did not want it, they did not contact the respondent. He further noted that the claimant had continued to attend work and provided fit notes to her employer.[59]The Tribunal found on the balance of probabilities that on 13 January 2022 the respondent extended the claimant’s contract to 19 March 2022 (page 512) because the respondent was experiencing an increase in the volume of trade across its business and there was a need to retain fixed term employees. At the time there was a business requirement to extend all fixed term contracts that had not yet reached 18 months service due to an increase in volume. On the balance of probabilities, the Tribunal finds that some fixed workers at the respondent’s BHX1 site were extended to March 2022 due to business need but all terminated by March 2022. The FTC extension process was driven by labour planning and headcount considerations a multiple factors feed into the collaboration of associate ratings which determine which FTC associates will be extended to fulfil headcount requirements. The network calibration tool does not have any direct manager input and is generated solely based on a system based metrics. The contract could not have extended to January 2023 because that would be in breach of the 18 months cut off limit for FTC's. The claimant’s evidence about the contract extension was rejected. Further COVID /sickness absence[60]The claimant had further sickness absence from work. The claimant contracted COVID again in January 2022. By (retrospective) fit note dated 5 January 2022 the claimant was unfit for work for the period 13 December 2021 to 16 January 2022 by reason of a mixed anxiety and depressive disorder (page 511). The claimant had a COVID absence from 18 January 2022 to 28 January 2022 (see page 529). A fit note dated 27 January 2022 for a period 15 January 2022 to 12 February 2022 for mixed anxiety and depressive disorder; page 545. A fit note dated 16 February 2022 for the period 12 February 2022 to 15 March 2022 for mixed anxiety and depressive disorder; page 548. Stress Risk Assessment[61]Mr. Sanvir Khunkhun also undertook a 13 page stress risk assessment (page 613- 625) on either 6 or 7 February 2022. The claimant’s evidence was that she did not see this at the time, but the Tribunal rejected her evidence and found that it had been completed in that period along with a discussion with her manager, noting the comments included in the assessment were on the balance of probabilities likely to have been made by the claimant. The claimant had suggested that she did not want to work through her breaks and wanted to relax. The claimant was actually having 2 additional breaks of 15 minutes following the recommendations of the OH. The claimant said this was theroretical and did not happen in practice. The Tribunal determined that Mr. Khunkhun suggested at page 615 the claimant be given an additional break to support her medication and he also encouraged the claimant to work on an indirect role as part of the rota but the claimant sometimes declined depending on how she felt on the day (see page 616). It was also noted that the claimant was not able to complete the indirect role on 6 February 2022 due to the side effect from medication and it would have increased her stress (see page 617). The claimant did not raise any concerns about bullying or harassment but stated a case was being reviewed by HR (page 620). It is further noted that the claimant stated that there were no workplace relationship conflicts within the team (p.620) Monitoring of performance[62]The respondent monitors employees’ productivity via the ADAPT system which tracks the performance of employees via items processed. When the claimant returned to work in 2022, she raised concerns about idle time. Mr. Khunkhun informed colleagues not to hold “seek to understand meetings” with the claimant about any excess idle time as it made her very anxious.[63]Employees are set targets via the labour planning each week. Rates applied are different within each process i.e. picking, stowing, receiving which have different rates as the processes are slightly different. Employees are measured against the target rate and dependent on their tenure learning curve and are expected to achieve 70 to 100% of that rate. The claimant alleged she was disciplined and received a first written warning for failing to meet productivity targets. There was no documentary evidence of any disciplinary action taken against the claimant to support this nor did the claimant’s manager, Mr. Khunkhun have any knowledge about this. On the balance of probabilities in the absence of any documentary evidence and taking into account that the claimant’s manager had no knowledge about such disciplinary action, the Tribunal determined that the claimant was not so disciplined. Termination of the claimant’s contract[64]The claimant’s contract was due to end on 19 March 2022. The claimant had been absent from work from 12 February 2022 and returned on 17 March 2022. Mr. Khunkhun made 6 attempts to contact her (three calls on two occasions) to discuss her contract but was unable to reach her. The claimant stated that the calls were received under spam so she had not answered. When the claimant returned to work Mr. Khunkhun extended the claimant’s contract to 26 March 2022 to give her one weeks’ notice. Mr. Khunkhun gave the termination letter to the claimant with an end date of 26 March 2022. The claimant was shown as active on the system until after her last shift, the night shift on 26 March 2022, and she would not have been locked out until her last shift ended. She was locked out of AtoZ app once the termination of her contract had been processed. There may well have been a delay between the termination date 26 March 2022 when the claimant could actually access the app due to the requirement that the termination be manually entered on the system. This did not mean that she remained an employee of the respondent after 26 March 2022. Submissions[65]Both parties provided detailed written submissions and were given one hour each to make additional oral submissions. The respondent provided Both parties had also provided the Tribunal with a timeline of COVID rules.[66]The respondent submitted there was a lack of clarity in the claimant’s case, and it had taken some time to clarify precisely her claims. Further that the claimant's witness statement did not address all the factual allegations in the list of issues and had sought to make further allegations which were not included in the list of issues. The claimants witness statement did not deal with the detrimental treatment she alleges from others by reason of her public interest disclosures. During the hearing the claimant cross examined on matters which had not been set out in writing including in her witness statement and she added she had been pulled up by Mr Singh for her productivity. In terms of credibility the respondents submitted that the claimant made allegations without any knowledge or evidence to support them and had made serious allegations of detrimental treatment as a result of public interest disclosures where she accepted the individuals had no knowledge of her public interest disclosures. In so far that the claimant sought to draw an inference that parties knew about her public interest disclosures, the Tribunal was invited to consider all the evidence which contradicted that inference. The respondent relied upon the claimant's own evidence that she treated the process around making a public interest disclosure confidential and she did not tell anybody about her disclosures. The claimant had alleged that her manager Mr Khunkhun had blocked access to her chime video platform as a result of a public interest disclosure. She accepted in cross examination there was no evidence that Mr. Khunkhun was responsible for blocking chime access. In respect of the automatic unfair dismissal claim there was no documentary evidence that the claimant's contract was extended in December 2021 to January 2023. The claimant contended that she had been removed from the critical role list. However, on her own evidence when asked to perform the critical role on 12th December she said she wasn't well enough and also in February she felt too unwell to do it. The claimant further alleged that she had been subject to a written warning on the 9th of February but there was no evidence whatsoever to show that she had any such disciplinary warning. The respondents submitted that the claimant’s evidence was unreliable in a number of respects. In relation to Mr. Pirvu he gave evidence about it matters when he did not have an IT role in the respondent. He was not well placed to inform the tribunal as to how the app functioned. His evidence about the events of the grievance meeting on the 13th of December were inconsistent with Miss Osborne's notes. He alleged that Mr McRae had said the respondent was friendly with authorities but that did not capture what was actually said in the meeting. The respondent invited the Tribunal to treat Mr. Pirvu’s evidence with caution. He had no contemporaneous evidence to support his allegations. In respect of Mr Zoltan Demeny he was not challenged because his evidence was not inconsistent with the respondents witness, Miss. Petrescu (see page 475). Further Mr. Raducana, did not attend the Tribunal to be cross examined so the weight to be attached to his evidence must be limited. In contrast the respondents’ witnesses gave their evidence clearly and in a honest way, answering questions conscientiously. The Tribunal only heard from Miss. Petrescu, Mr Singh and Mr Khunkhun who are current employees about detriment. The claimant did not mention other individuals in her witness statement and in respect of the treatment of detriments, her witness statement was cursory. The claimant’s allegation about being allocated to the pet food area contrary to the Stow board (paragraph 48) was limited to when Mr Khunkhun was present. In the absence of any evidence that Mr. Khunkhun was even aware of the public interest disclosure, there was no room for any inference being drawn against the respondent.[67]The respondents submitted the reality of the case was that there was an inadvertent error due to a misunderstanding of the claimant’s position. Miss. Petrescu stated that she had not seen the previous communications or the isolation note referring to the claimant to stay at home until the 16th of November. If she had she done so she stated she would not have advised the return date when she did. The misunderstanding by this respondent was corrected in a matter of days. The general manager said on the 13 of November that the claimant should continue isolating. Miss Reeves on the 15 of November stated that the claimant should stay at home. The claimant was not satisfied and wished to make a formal complaint. The respondent appointed individuals to review the situation comprehensively and partially upheld her complaint. There was no retaliation against the claimant for raising complaints. To the contrary, the respondent actually extended the claimant’s contract for a further two months to March 2022. The claimant had not provided any evidence of detriment by reason of public interest disclosures or that the individuals even knew about public interest disclosures. In regards to the claimants disability discrimination complaint, it is accepted the claimant was disabled by reason of depression from 13 December 2021. The respondent ensured that two occupational health reports and assessments took place. The claimant attended work following December on very few occasions and attended by her own volition on the 22 of February when signed off work. There was no credible suggestion that she was treated less favourably because of her depression nor was she disadvantaged; there was no evidence of a written warning.[68]In respect of the written contract extension the respondent relied on the oral evidence of Mr. Yates as to how extensions take place. It was submitted that the claimant merely relies on a message at page 593 that her contract was extended but the message had no context. The claimant suggests at page 447 that the respondent has fabricated a document; this was a practise of the claimant; when any document was against her, she alleged it was fabricated by the respondent. The claimant has also misquoted evidence given to the Tribunal including the evidence of Mr Singh at page 9 of the claimant’s submission where she says that Mr. Singh said in evidence that he had the same expectations for the claimant as other non-disabled employees but the respondent says that was in fact not said in evidence. There was no evidence that the claimant was disabled on the 11th and 12th of December. The allegations do not commence until the 13 of December; this is beside the point in respect of indirect discrimination, the claimant has failed to make out her case.[69]The claimant submitted that her contract was extended in December she signed to accept it. The claimant submitted that she had not signed the extension sent to her in January 2022. The claimant relied upon the fact that the timetable page 568 to 708 envisaged that she would be still at work. The extension for two months required her to consent & she did not consent. She already had a contract extending her employment until 2023. She felt she had been cheated. She disputed that Mr. Khunkhun had tried to contact her in March 2022. The claimant made a serious disclosure about COVID and a further complaint was escalated. The claimant submitted she did not receive the notes of the 28th of November so she did not have an opportunity to contest them she does not believe they are accurate at the second meeting on the 13th of December 2021 “I said I wasn't an isolated case and I showed the correspondence I did delete the name of the person”. She asked Mr McRae to make a report about this he'd said there friendly with the authorities. The claimant said she reasonably believed that she made a public interest disclosure in the public interest; she had to make about 30 phone calls or emails with the respondent despite having an isolation note that she shouldn't have to go back to work. The claimant relied on Mr. Pirvu’s evidence who she said was a reliable witness and had been living with her throughout the period and knew what she had gone through. Credibility[70]The Tribunal found the claimant’s evidence to be inconsistent with contemporaneous documentation and that she tended to make allegations in the absence of any evidence. At the commencement of the hearing, the claimant confirmed that the list of issues at page 218 were the agreed list of issues. In the course of cross examination, when it was identified that the claimant had made complaints about Mr. Thomas in her witness statement which had not been relied upon in the list of issues, the claimant said there was a different list of issues; the Tribunal did not accept this. The claimant alleged that her employment contract was extended to January 2023 by her manager; she had no copy of the extension of her contract on either the Amazon or her personal email account where she accepted documents could be sent by Amazon. Her manager had no remit to extend her employment contract and there was a set process for extension of contracts which Mr. Yates explained comprehensively; the claimant’s allegation was not credible. The claimant alleged detrimental treatment by a number of individuals which she did not evidence in her witness statement. Under cross examination, the claimant accepted she had not told any of them about her protected interest disclosures and kept the process confidential. The claimant was unable to explain in cross examination why she said they had treated her by reason of her protected interest disclosures in the manner she alleged. The Tribunal took into account the claimant was a disabled person and litigant in person who’s first language was not English but even taking those matters into account the Tribunal determined that the very serious and specific allegations made against Ms. Petrescu was a significant omission in the contemporaneous documentation. The claimant accepted that as a result of her conversation she was referred to OH and the EAP but contended that she had not got upset at the meeting on 12 December 2021. The claimant’s evidence was not credible.[71]The claimant called Mr. Pirvu who was assisted by a Romanian interpreter. He has an outstanding claim against the respondent. The Tribunal did not find him to be a credible witness. He purported to give evidence about matters not within his expertise such as the working of the IT system of Amazon and appeared to be seeking to argue his own case before the Tribunal rather than assisting the Tribunal to find facts concerning the claimant’s case. His evidence about the meeting on 13 December 2021 with the claimant and Ms. Osborne contradicted the written document of the meeting corroborated also by the oral evidence of Ms. Osborne and Mr. McRae.[72]The claimant also called Mr. Zoltan Demeny. His evidence was unchallenged by the respondent. He did not provide any evidence to corroborate the claimant’s evidence about her alleged poor treatment on 11/12 December 2021 by Ms. Petrescu despite being present for some of the time.[73]For the respondent, Miss. Petrescu was a credible witness who was genuine and proud of her position in the respondent. She was also very articulate in English and the Tribunal found the very serious allegations made by the claimant against Miss. Petrescu to be incredible; first the allegation of stating “you see that you urinated on..by piss” was not something that the Tribunal found Ms. Petrescu would say; she was articulate in English; the words of the allegation did not make sense and Ms. Petrescu was professional and highly unlikely to make such remarks. Further it was suggested that Miss. Petrescu was behaving like this every time she walked past the claimant; the Tribunal was satisfied on the balance of probabilities that Ms. Petrescu would not behave like this. Further the Tribunal rejected the allegations against Ms. Petrescu that she would say the claimant was at risk; going to be investigated for gross misconduct and don’t tell me what regulations I have to follow; the allegations were inconsistent with the professionalism of Miss. Petrescu. Further she informed the Tribunal that the claimant’s allegations against her really knocked her confidence as she was new into the position of three months and she therefore sought to avoid the claimant thereafter which the Tribunal found was genuine and credible.[74]The Tribunal found Mr. Singh, Mr. Khunkhun, Miss. Osborne; Mr. Yates; Mr. McRae and Miss. Reeves to be credible and honest witnesses. The Law Section 47 B protected disclosures(1) only subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure” 103A Protected disclosure/automatic dismissal An employee who is dismissed shall be regarded for the purposes of this part as unfairly dismissed if the reason (or if more than one the principle reason) for the dismissal is that the employee made a protected disclosure. Qualifying disclosures; under section 43B(1) ERA breaks down into five elements see Williams v Brown UKEAT/0044/19 (1) has there been a disclosure of information?(2) Did the claimant believe that the disclosure was made in the public interest?(3) If so was that belief reasonably held?(4) Did the claimant believe that the disclosure tends to show one or more of the matters listed s.43B (1)(a)-(f)?(5) If so, was that belief reasonably held?
The Law
[75]A disclosure must have sufficient factual content and specificity; Kilraine v London Borough of Wandsworth (2018) EWCA Civ 1436. It is crucial for the tribunal to identify the information disclosed by the worker which is said to amount to a qualifying disclosure “this is crucial because section 43B one requires the tribunal to go on to consider whether the claimant's belief about that information fell within the section and if the conclusion is that there was a qualifying disclosure, whether the disclosure of that information was a or the reason for the treatment complained of” see Twist DX v Armes UKEAT/0030/20/JOJ[76]The question of what a worker reasonably believes involves two elements; first whether the worker subjectively believed at the time of the disclosure that the disclosure was in the public interest and second if so whether that belief was objectively reasonable; see Chesterton Global v Nurmohamed (2018) ICR 731. In relation to the public interest the question is whether the worker reasonably believed that making this disclosure was in the public interest as opposed to whether the worker reasonably believed they were talking about a topic which in general terms was in the public interest; Carr v Blomberg LLP 2022 EAT 49.[77]In the case of International Petroleum v Osipov (UKEAT/0229/16), it was held that section 47 B will be infringed if the protected disclosure materially influenced in the sense of being more than a trivial influence the employer's treatment of the whistleblower see Fecitt v NHS Manchester 2012 I RLR 64 an approach that mirrors the approach adopted an unlawful discrimination cases and reinforces the public interest in ensuring that unlawful discrimination considerations are not tolerated and should play no part whatsoever in employers treatment of employees and workers. The words on the ground that were expressly equated with the phrase by reason that in Najagaran v London Regional transport 1999 ICR 877. So the question for a tribunal is whether the protected disclosure was consciously or unconsciously a more than trivial reason or ground in the mind of the putative victimiser for the impugned treatment. In respect of causation in dismissal cases In deciding the reason or principal reason for dismissal the Court of Appeal stated in Abernethy v Mott 1974 ICR 323 at 330 refer to “the set of facts known to the employer, or it may be of beliefs held by him which cause him to dismiss the employee”.[78]Burden of proof Section 47B cases The correct approach to the burden of proof and inference drawn in section 47B of ERA summarised by the EAT in Osipov at paragraph 115 namely(a) the burden of proof lies on a claimant to show that a ground or reason that is more than trivial for detrimental treatment to which he or she is subjected is the protected disclosure he or she made;(b) by virtue of section 48 (2) of ERA 1996 the employer or other respondent must be prepared to show why the detrimental treatment was done. If they do not do so an inference may be drawn against them; see London Borough of Harrow v Knight at paragraph 20;(c) however as with inferences drawn in any discrimination case inferences drawn by tribunals in protective disclosure cases must be justified by the facts as found. in a case where the tribunal can find no evidence to indicate the grounds on which the respondents subjected to the claimant to attachment it is not required to find that the reason was that contended by the claimant or accordingly it does not follow that in such circumstances the claim necessarily succeeds; Ibekwe v Sussex Partnership Foundation Trust EAT/0072/14 applying Kuzel v Roche Products Limited (2008) IRLR 530 2. Where an employee lacks 2 years qualifying service to bring an ordinary unfair dismissal case, the claimant bears the burden of showing on the balance of probabilities that the reason or principal reason for dismissals that she made protected disclosures in a claim under section 103 a of the ERA; see Ross v Eddie Stobart Limited EAT/0068/13 78.1 Disability Section 6 of the Equality Act provides definition of disabilities as follows (1) a person P has a disability if (a) he has a physical or mental impairment and (b) impairment has a substantial a long term adverse effect on P's ability to carry out normal day-to-day activities. Section 212 (1) of the Equality Act provides that substantial means more than minor or trivial schedule one paragraph 1(i) provides that the effect of an impairment is long term if it is lasted for at least 12 months is likely to last for at least 12 months or is likely to last the rest of the life of the person affected. Paragraph 2 (ii) or schedule provides that if an impairment ceases to have a substantial adverse effect it is to be treated as continuing to have that effect if that effect is likely to recur. In that context likely has been determined by the House of Lords as “could well happen” rather than “more likely than not”. (SCA packaging Limited v Boyle 2009 UKHL 37. Paragraph 5 of schedule one provides an impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if measures are being taken to correct it and but for that it would be likely to have that effect.[79]The Tribunal must take into account statutory guidance on the definition of disability (2011) which stresses that it is important to consider the things that a person cannot do or can only do with difficulty (B9). This is not offset by things that the person can do which was confirmed in Aderemei v London & South Eastern Railway Limited 2013 ICR 391. Day-to-day activities are things people do on a regular basis such as shopping reading watching TV getting washed and dressed preparing food walking travelling and social activities this includes work related relates activities such as interacting with colleagues using a computer driving keeping to a timetable C guidance D2/D7)[80]Direct disability discrimination Section 13 of the Equality Act 2010 (“EQA”) defines direct discrimination as less favourable treatment when compared with others because of a protected characteristic. Section 13 (1) of the Equality Act 2010 provides that. “A person (A) discrimination against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others”.[81]It is necessary to establish if the Respondent has treated the Claimant less favourably than it treated or would treat others and the difference in treatment is because of the protected characteristic, namely disability.[82]The Tribunal is to make a comparison with an actual or hypothetical comparator in not materially different circumstances (section 23 EQA 2010). In respect of a hypothetical comparator, it is possible to use the evidence of comparators in materially different circumstances to construct a hypothetical comparator and determine how such a hypothetical individual would be treated. However, a statutory comparator as per s. 23 Equality Act 2010 must be a comparator in the same position in all material respects of the victim save that he, or she, is not a member of the protected class (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285). The Tribunal must decide why the claimant was treated as he was. Nagarajan v London Regional Transport [1999] IRLR 572 identifies this as the “crucial question”.[83]As to whether the alleged less favourable treatment was because of disability the key focus for the tribunal is on the reason why the claimant was treated less favourably and whether it was the disability. This usually requires a consideration of the mental processes, whether conscious or subconscious, of the alleged discriminator. Islington London Borough Council v Ladele [2009] ICR 387 - in relation to discrimination claims, the tribunal has to determine the reason why the claimant was treated as he was and if the tribunal is satisfied that the prohibited ground is one of the reasons for the treatment, that is sufficient to establish discrimination. It need not be the only or even the main reason. It is sufficient that it is significant in the sense of being more than trivial. Direct evidence of discrimination is rare, and tribunals frequently have to infer discrimination from all the material facts. The courts have adopted the two-stage test which is set out in Igen Ltd v Wong [2005] IRLR 285, CA. In some cases it may be appropriate for the tribunal simply to focus on the reason given by the employer and if it is satisfied that this discloses no discrimination, then it need not go through the exercise of considering whether the other evidence, absent the explanation, would have been capable of amounting to a prima facie case under stage one of the Igen test, (Brown v Croydon London Borough Council [2007] ICR 90). Section 136 of the Equality Act 2010 provides that where the tribunal finds facts from which it could conclude that unlawful discrimination has taken place the burden of proof shifts to the respondent to prove that the action was non discriminatory. This operates in two stages first the claimant must prove on the balance of probabilities facts from which the tribunal may infer discrimination has taken place second and only if the claimant does so the respondent must prove on the balance of probabilities that the treatment was in no sense whatsoever because of the protected characteristic of disability. Indirect discrimination Pursuant to section 19 (1) a person A discriminates against another B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s. (2)(a) For the purposes of subsection (1) a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if – (a)A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) it puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim. Provision, criterion or practice[84]For the Claimant to succeed in a claim he must show that there was a “provision criterion or practice” (PCP) which was applied to him. The disadvantage must apply not only to the claimant but also to the group with whom he shares the protected characteristic i.e. Greeks (Gray v Mulberry Co (Design) Ltd [2020] ICR 715. A PCP should be construed widely and the EHRC Code indicates that it can include “one-off” decisions and actions. In the case of Ishola v Transport for London [2020] EWCA Civ 112 Simler LJ stated, ‘In my judgment, however widely and purposively the concept of a PCP is to be interpreted, it does not apply to every act of unfair treatment of a particular employee. That is not the mischief which the concept of indirect discrimination and the duty to make reasonable adjustments are intended to address. ...In context and having regard to the function and purpose of the PCP in the Equality Act 2010, all three words carry the connotation of a state of affairs (whether framed positively or negatively and however informal) indicating how similar cases are generally treated or how a similar case would be treated if it occurred again. It seems to me that “practice” here connotes some form of continuum in the sense that it is the way in which things generally are or will be done. That does not mean it is necessary for the PCP of “practice” to have been applied to anyone else in fact. Something may be a practice or done “in practice” if it carries with it an indication that it will or would be done again in future if a hypothetical similar case arises. Like Kerr J, I consider that although a one-off decision or act can be a practice, it is not necessarily one. ...in the case of a oneoff decision in an individual case where there is nothing to indicate that the decision would apply in future, it seems to me the position is different. It is in that sense that Langstaff J referred to “practice” as having something of an element of repetition about it.’[85]The employer must have actually applied the alleged PCP to the claimant at the material time that is at the time of the alleged disadvantage. The effect of section 19(2)(c) is that the claimant must actually be disadvantaged in the manner alleged that is they have experienced or would experience the disadvantage allegedly caused by the application of the PCP. In a claim for indirect discrimination the burden lies with the claimant to establish the first second and third elements of the test in section 19 (2) only then does it fall to the respondent to justify the PCP see the case of Dziedziak v Future electronics limited UKEAT/0270/11.[86]Thus, the PCP must apply to people who do not share the protected characteristic(s) or an indication that it will in future if a hypothetical case arises. It has to put people who share the same protected characteristic(s) as the claimant at a particular disadvantage.[87]The Tribunal considers the impact on people within a defined pool for comparison.[88]The pool should always contain workers affected by the PCP in question, Essop v Home Office (2017) UKSC 27 and tests the particular discrimination complained of, Grundy V British Airways [2007] EWCA Civ 1020.The PCP must put or would put individuals who possess the same disability as the Claimant at a particular disadvantage when compared with individuals who do not possess the disability; (Booth v Delstar International [2023] EAT 22).[89]Where the proportionality test is engaged, the treatment must be both a way of achieving the legitimate aim and a reasonable necessary means of doing so (Homer v Chief Constable of West Yorkshire [2012] UKSC 15). The reasonable needs of the employer should be balanced against the discriminatory effect of the treatment, and consideration should be given to whether there is an alternative (less discriminatory) way for the employer to achieve their aim. Conclusions Disclosures
Conclusions
[90]The claimant relied upon three alleged disclosures. In respect of the first disclosure, an email dated 11 November 2021 (page 444-5), the Tribunal found that the claimant had disclosed to her employer information that she was being required to attend work whilst testing positively for COVID. In the email dated 11 November 2021 the claimant had stated “on 23 October I developed some COVID symptoms and later I tested positive and I respected the isolation. On November 6th I developed new more aggressive symptoms and immediately contacted NHS119 at 1:35 PM and they sent me for a PCR test immediately and as a result of the conversation I had with them I had to continue my isolation period until November 10 because they told me that the arrival of the results can last up to 72 hours. On the following day 7/11/2021 at 12:17 PM I received the test result with a positive result and later I called 119 NHS from agreements made the previous day. Practically in the telephone conversation they had (14 minutes 36 being confused because the HR staff were exposing the situation differently I asked the NHS for information support) they explained to me that I have to isolate myself for a further period of 10 days because I have developed new symptoms and they invited me to explain to my employer but it is not a continuation of the first period but of a knew. Based on the development of the new symptoms…. The HR staff who constantly told me that for them I am no longer contagious and it is my free choice not to resume work activities as also shown by the e-mail that I have attached them as proof. Now practically I'm in a critical situation because the NHS requires me to respect the law and carry out my isolation because it is contagious and they have advised me to claim the unsafe fact from the HSE (health and safety executive) ACAS. The fact that HR personnel do not respect the workplace safety policy by encouraging the COVID mass contagion because it exposes them to a positive COVID subject is a crime and they had inadvertently pose damage to the company.”The claimant conveyed information (a disclosure) with sufficient factual content and specificity that there was a breach of the COVID regulations; namely the need for the claimant to self-isolate in accordance with the isolation note and she disclosed that she had been given a return to work date which was in conflict with her legal duty to self-isolate. The claimant relied upon the NHS information/advice which had stipulated she needed to self-isolate. In the circumstances, the Tribunal concluded that the claimant relying upon the NHS isolation note and advice received from NHS 111 had a reasonable belief and that such a belief was reasonable that the respondent requiring her to return to work prior to the expiry of the isolation note there was a breach of a legal obligation to comply with COVID rules and that the health or safety of any individual had been was being or was likely to be endangered. The BHX1 site had over one thousand permanent workers on site and about 3,200 FTC on site at its peak during COVID. The claimant stated the work included handling of numerous items. The Tribunal determined that the claimant reasonably believed at the time of sending the email that the disclosure was made in the public interest by reason of the fact that the claimant’s attendance at work whilst she had COVID could impact a significant workforce and have significant impact on any external contacts (family and friends or other members of the public) they may meet and such a belief was objectively reasonable (in accordance with Chesterton Global v Nurmohamed). The Tribunal determined that that the claimant made a qualifying disclosure pursuant to section 43B (1) (b) and this was protected by reason of it being sent to her employer, Jeff Bezos, Chief Officer of the respondent’s business.[91]In respect of the second disclosure namely during a meeting on 28 November 2021 with Sherrie Osborne, the Tribunal found on the balance of probabilities that the claimant did not make a qualifying disclosure. The claimant’s case is that during a meeting with Sherrie Osborne on 28 November 2021 the claimant advised Miss. Osborne that other people were being forced to come into work whilst they had COVID. The Tribunal took into account the evidence of the claimant and Miss. Osborne. In Miss. Osborne’s witness statement (paragraph 3.13) she stated that at no time during this particular meeting did the claimant tell her that any other associates were required to return to work whilst testing positive for COVID or show her any documentary evidence that this was the case. The Tribunal preferred the evidence of Ms. Osborne taking into account the notes of the meeting at page 456 to 457 that make no mention of the claimant raising a concern that others were being forced to return to work with COVID. The claimant stated she did not receive these notes until later so had no time to challenge them, but the claimant had no notes of the meeting herself and the Tribunal found Miss. Osborne to be a credible witness. In the circumstances, the Tribunal determined that the claimant did not make a qualifying disclosure as she alleges. This allegation fails.[92]In respect of the third disclosure, the pleaded allegation is that the claimant showed Miss. Osborne documentary evidence that it was not just she who was being required to work whilst they had COVID and told Ms. Osborne she wanted Amazon to enforce the rules on Health and Safety in the workplace. The Tribunal took into account the claimant’s witness evidence, Mr. Pirvu’s evidence (paragraph 12); and the evidence of Ms. Osborne and Mr. McRae. The Tribunal noted that in the claimant’s witness statement at paragraph 9 the claimant had stated “during the meeting I emphasised the Amazon’s actions posed a direct public health threat and constituted an epidemic crime under UK law including violations of a the Health and Safety at Work Act 1974 Amazon failed to ensure the health and safety of its employees during the pandemic b the control of substances hazardous to health regulations 2002 by allowing employees to work while positive for COVID-19, Amazon breach regulations designed to minimise exposure to hazardous substances see the public health control of disease at 1984 under the Health Protection coronavirus regulations 2020 Amazon's actions contravene laws empowering health authorities to prevent the spread of infectious diseases. I highlighted the case of my colleague Raducanu Florentin who despite NHS guidelines for isolation was encouraged by Amazon to come to work thus potentially endangering other employees. This example underscored that my case was not isolated illustrating a systematic issue with Amazon BHX1 where employees were repeatedly encouraged to disregard health guidelines”. This differed from the pleaded allegation. The Tribunal noted that the claimant was a litigant in person and that English was not her first language.[93]The Tribunal found that the claimant did say in effect at the meeting another colleague was being asked to come into work when they had COVID; she did not actually name the colleague (accepted by the claimant and Mr. Pirvu) nor the Tribunal finds did she show the respondent documentary evidence about this (in accordance with the evidence of Miss. Osborne and Mr. McRae which the Tribunal accepts). The claimant stated she had a Chime instant communication messaging system message confirming this but no evidence was actually provided by the claimant to this effect and she said that she could not tell the name of the person.[94]The Tribunal determined that the information provided by the claimant in the meeting namely that she was not the only person and a colleague was being required to attend work with COVID was only an allegation. The Tribunal takes into account the guidance provided in Kilraine v London Borough of Wandsworth that there should be no rigid dichotomy in respect of “information” and “allegations” because sometimes a statement which can be characterised as an allegation will also constitute information and amount to a qualifying disclosure. However at paragraph 32 of the Court of Appeal’s judgement it refers to “You are not complying with health and safety requirements” and describes it as being so general and devoid of specific factual content that it could not be said to fall within the language of section 43B(1) so as to constitute a qualifying disclosure. The Tribunal found that what the claimant actually said to the respondent at the meeting on the 13 of December fell into this general category and contained no more specific factual content. The Tribunal determines that this was a mere allegation and the claimant did not disclose information to constitute a qualifying disclosure. This allegation Automatic unfair dismissal s.103A[95]The Tribunal having found that the claimant made one public interest disclosure in an email dated 11 November 2021 went on to consider the reason or principal for the dismissal of the claimant and whether it was because the claimant made a protected disclosure.[96]There is no dispute between the parties that when the claimant commenced her employment with the respondent in May 2021 her fixed term contract was due to expire on 22 January 2022 (see page 371 and 373). The Tribunal determined that the claimant’s contract of employment was not extended to January 2023 by her manager Mr. Khunkhun. The Tribunal has set out its findings of facts fully above. In summary, the Tribunal found that it preferred the evidence of the claimant’s manager, Mr. Khunkhun that he did not extend the claimant’s contract taken together with the total lack of evidence of any contractual extension to January 2023 either in the possession of the claimant or the respondent. Further such a contractual extension would be contrary to the respondent’s practice of not extending an employee’s contracts beyond 18 months from their last assignment. In addition, the evidence of Mr. Yates who was responsible for sending out extensions to contracts and how the system generated extensions and the fact that it was not in Mr. Khunkhun’s gift to extend any employee’s contract of employment. The Tribunal found that the message relied upon by the claimant at page 594 did not establish that Mr. Khunkhun had extended the claimant’s contract; the disclosure in respect of this message was incomplete; there was no message trail and there was no context to establish the message was a response to an extension of the claimant’s employment contract.[97]The claimant also relied upon an email from the absence reporting team dated 26 March 2022 stating it expected the claimant to return to work on 27 March 2022 (see page 600) and screenshots from the A to Z app showing the claimant’s shift timetable beyond March 2022. The Tribunal determined that this did not establish that the claimant’s contract was extended beyond March 2022 in the light of the evidence of the respondent that the A to Z app ceases for an employee only after a manual processing of an employee’s termination on the system and there can be a delay between termination and the manual processing.[98]Instead, the Tribunal determined that the claimant’s contract was extended in accordance with the evidence of Mr. Yates namely to 19 March 2022 on 13 January 2022 (see page 512). The extension of the claimant’s contract was part of a blanket set of extensions of all FTC associates at the site who had not hit 18 months tenure. At the time the claimant was absent from work and the claimant was sent the extension via the app and reminded to sign her agreement to the extension on 13,17 and 21 January 2021 (see pages 513,518 and 539).[99]The claimant argued before the Tribunal that the alleged extension in March 2022 was not legal because she had not signed the document to extend her contract. The Tribunal determined that the claimant did not sign the extension because there was no evidence before the Tribunal that the claimant ever did sign the extension. Mr. Yates’ evidence to the Tribunal is that there are blanket extensions to contracts for up to 2000 employees at any given time. The respondent does not check whether employees accept the contracts or sign them but in practice employees rarely reject the extension. The respondent assumes employees are content with the extension even though unsigned unless the employees specifically raise an objection and state they wish to leave the respondent’s employment.[100]Under cross examination, the claimant accepted that she had not raised any objection to the extension of her contract to March 2022. Further the claimant continued to act as if she was an employee of the respondent following 13 January 2022 (the initial expiry date of her contract of employment) when she continued to send in sick notes to the respondent.[101]Significantly the respondent extended the claimant’s contract following her making a protected interest disclosure on 11 November 2021. The Tribunal found that the claimant’s contract was not extended to January 2023 but to March 2022. It was so extended following the claimant making a protected interest disclosure. The reason or principal reason for the claimant’s dismissal was not the fact that the claimant made a protected interest disclosure on 11 November 2021. The claimant’s contract was terminated on 19 March 2022 with one weeks’ notice in accordance with the contractual extension to that date and by expiry of its term. Mr. Khunkhun’s evidence which was accepted by the Tribunal is that the claimant’s contract was due to end on 19 March 2022; on the claimant’s return to work, Mr. Khunkhun extended the contract to 26 March to give the claimant’s one week notice. Detrimental Treatment[102]The claimant made a number of pleaded allegations against individual colleagues she said subjected her to detrimental treatment namely Connor, the transfer line manager; Mr. Emin, Leader Stow; Manjeet Singh; Arun Dees; Sanvir Khunkhun; Ranescu Cornelia Step up Lead Stow; Catalin Marica Step up Lead Stow; and Ms. Petrescu. The Tribunal only heard from the employees presently employed by the respondent namely Mr. Singh, Mr. Khunkhun and Ms. Petrescu. The Tribunal as set out above found all three witnesses credible and honest. In respect of the claimant’s allegations about poor treatment by her managers/leads, the Tribunal did not find this credible. The Tribunal also took into account that following the welfare meeting on 14 December 2021 the claimant in a message at page 593 stated “I will make a small change to your statement that is I get support from Amazon except the HR team because they have caused me further damaged by exposing me to a situation of deception and aggravating my state of health in rest I'm agree with all.” There was no indication here that the claimant believed that the managers/leads were treating her badly. Further in the stress risk assessment dated 6/7 February 2022 at pages 613-624 the claimant was asked about whether there was any bullying or harassment, she stated “no but another case being reviewed with HR” (the Tribunal found that this was not concerning her managers or leads but her grievance about HR) and further whether there were any issues concerning workplace relationship conflicts within the team, to which the claimant, answered “no”. These comments by the claimant indicated up to 6/7 February 2022 that she had no issues with her managers/leads.[103]Furthermore, the claimant did not complain about her detrimental treatment by any of the named individuals to the respondent or her manager, Mr. Khunkhun in the manner she alleges or at all. The Tribunal noted that the claimant was a person who did complain and escalated her concerns where she felt unsatisfied by the respondent’s response. Evidentially it was significant that she had failed to raise her concerns formally and the Tribunal determined (taken together with all the other factual material) that on the balance of probabilities that the alleged detrimental treatment as alleged was unlikely to have occurred.[104]The claimant’s evidence to the Tribunal is that she kept her public interest disclosures confidential, and she engaged confidentially with the grievance process. She did not discuss her protected interest disclosures with her colleagues or managers/leads named as responsible for the alleged detrimental treatment or the fact that she was engaging in the grievance process. The Tribunal found that the claimant could not establish on the balance of probabilities any knowledge of the named individuals as to her public interest disclosures. Mr. Khunkhun, Mr. Singh and Ms. Petrescu gave unchallenged evidence that they were unaware that the claimant made any protected interest disclosures. The Tribunal accepted their evidence as credible.[105]The Tribunal determined that being removed from the critical role list could be seen as a detriment or disadvantage because the work was regarded as being more complex than general stowing duties and could evidence a level of competence necessary for advancement at Amazon. This allegation was directed at Mr. Khunkhun for the periods 20 November 2021 to 11 December 2021 and 11 December 2021 to 26 March 2022. The Tribunal found there was one occasion when the claimant came off the critical role list at her own request. This was consistent with the claimant’s own evidence to the Tribunal there were occasions on which she was asked to perform a critical role but was unable to do so because she didn't feel well. On such example was on 12 of December 2021. Under cross examination the claimant had said this was the only time she was selected and the only time she declined to perform the critical role. However, the stress risk assessment completed by the respondent indicated another occasion when the claimant declined to take the role when selected on 6 February 2022 see page 617. The Tribunal reached the conclusion that the claimant’s evidence was not credible, and she was not removed from the list of people to whom these tasks were available by Mr. Khunkhun; the claimant remained on the list; she determined she did not want to do the work when offered and Mr. Khunkhun did not remove the claimant from the critical role nor was she marginalised in this regard.[106]Further in respect of the claimant’s pleaded allegation was that she was marginalised as a result of making a disclosure for the period of 20 November 2021 to 11 December 2021 by Connor, the transfer line manager; Dzhivelek Emin (login Dzhivel) leader of Stow; Manjeet Singh (F/F line manager); Arun Dees and Sanvir Khunkhun (claimant’s line manager) by sending her to different areas from the area known as the buffer the Tribunal did not find this allegation well founded. The claimant’s pleaded case is that all of the managers sent her to different areas from the area known as the buffer so that she was separated from the rest of the collective and had to work alone. The respondent’s evidence, which was accepted by the Tribunal, is that part of being an FC associate is to be flexible so that an FC associate can be moved about the warehouse where operational requirements demand. The evidence of Mr. Khunkhun and Mr Singh was that employees were moved around different areas to those allocated on the stow board and it was usual to satisfy business work demand. The claimant's witness evidence about the pleaded allegation amounted to Mr. Khunkhun allocating her to the pet food department and not assigning her critical role responsibilities. She did not detail the alleged pleaded detrimental treatment against others. The Tribunal determined that if the claimant was sent to other areas deliberately and made to work away from the rest of the team and working alone; this would amount to a detriment namely a disadvantage. However, the Tribunal concluded on the balance of probabilities that this did not occur. The Tribunal concluded if the claimant was sent to different areas from the area known as the buffer it was likely to be by reason of workflow demand. Further she would not have been separated from team groups; employees are moved in groups and she did not have to work alone.[107]On the balance of probabilities the Tribunal did not find that the claimant was sent deliberately to work alone to different areas from the area allocated on the stow board where was she was separated from the rest of the collective and had to work alone by any of the managers; she was required to work flexibly along with other FC associates; she was likely to have been moved in groups. Further there was no causative link between her protected interest disclosure and any such alleged detrimental treatment because the claimant did not establish on the evidence that any of the named individuals were aware of her public interest disclosures.[108]The claimant’s pleaded allegation is that for the period 11 December 2021 to 26 March 2022 she wanted to apply for the step up lead opportunity and Mr. Khunkhun told her that no you are not able to lead. Mr. Khunkhun disputed this allegation. Mr. Khunkhun’s evidence which the Tribunal found credible denied he had said this, and the Tribunal accepted his evidence that this opportunity was advertised around the site, and it was for the claimant to apply for if she wished to. This was not something which Mr. Khunkhun was responsible for. This allegation[109]The claimant’s pleaded allegation is that from 11 December 2021 to 26 March 2021 Mr. Khunkhun blocked her access to the chime video platform. The claimant clarified this allegation under cross examination that the access to the App was blocked and as her manager Mr. Khunkhun must be responsible for this. The Tribunal rejected the claimant's evidence, preferring the evidence of her manager. Mr Khunkhun did not have the technical ability to deny anyone's access to the chime app and confirmed under cross examination he had no idea how to block someone’s access to chime. This allegation fails.[110]The claimant’s pleaded allegation was that during the period 11 December 2021 to 26 March 2022 she could not participate in a project organised by sight BX5 by the BHX1 site that was to act as critical role and work in Derby for a limited period of time; the claimant's case was that Mr. Khunkhun always said no to this. In his evidence, Mr. Khunkhun stated he had no recollection of this particular opportunity. The Tribunal accepted his evidence that this was outside his role as a manager and if the claimant had wanted to apply to it, she could have done so. This allegation fails.[111]The claimant’s pleaded allegation is that her manager Sanvir Khunkhun did not put her name on the list for the apprenticeship opportunity. Mr. Khunkhun disputed the claimant’s allegation. The Tribunal accepted his evidence, that the respondent advertises all such opportunities in Chime and around the site and that it was not his role to put the claimant forward for such an opportunity nor did he have any authority to decide who should be accepted. This allegation fails.[112]The claimant’s pleaded allegation is that she was mocked by Cristina Petrescu on 11 December 2021 and then every time she walked past, Miss Petrescu stared and whispered “you see that you urinated on by piss”. The Tribunal has dealt with this allegation in detail above and rejects it. The Tribunal repeats that this specific allegation was not mentioned in a grievance or any complaint by the claimant (complaint dated 12 December 2021 timed at 16.51; see page 480). The claimant was keen to complain and escalate matters of concern; although the claimant implicitly complained about Ms. Petrescu in her email to Mr. Norton, the Tribunal noted it is in very general terms. The Tribunal was confident that if Ms. Petrescu had actually said these words to the claimant, the claimant would have complained directly and specifically about it. Furthermore, Miss. Petrescu was a conscientious professional who denied saying these words and the Tribunal finds it unlikely that Miss. Petrescu would say anything like this. This allegation fails.[113]The claimant’s pleaded allegation is that she was mocked by Dzhivelek Emin from 20 November 2021. He scolded her for low productivity told her that she was incapable and that she should be ashamed of wearing her Amazon badge. He told the claimant he must move her because people suffering from cancer at Amazon work more efficiently than the claimant. Initially this happened approximately once every two weeks but it intensified to around once per day from 12 December 2021. On 26 March 2022 Mr. Emin called the claimants to a meeting when he was particularly aggressive towards her. The claimant did not provide any detail in her witness statement about this allegation. Mr. Emin is no longer employed by the respondent and was not called as a witness. Mr Khunkhun’s evidence in response to questions from the Judge, stated that the first time he became aware of the claimant’s complaints about Mr Emin was in the course of the Tribunal proceedings and she had not raised the serious concerns with him at the time. In the context that the claimant was somebody who was willing to make complaints, the Tribunal found it was evidentially significant that she had failed to raise these matters with her manager. The Tribunal also took into account that during the welfare meeting on 14 December 2021 and the risk assessment dated 6/7th of February 2022 the claimant did not raise any of these concerns against her leads or managers. On the balance of probabilities, the Tribunal rejected the claimant’s evidence and found that these matters did not occur. The allegation fails.[114]The claimant’s pleaded allegation was on 11 December 2021 she was involved in an abusive disciplinary meeting with Christina Petrescu. She says Ms. Petrescu wanted to punish her for not turning up to work when she had cavid. At the meeting Ms. Petrescu told the claimant she was at risk and was going to be investigated for gross misconduct. When the claimant tried to tell her that she should follow the disciplinary regulations referring to the fact that she had not had a formal invitation to the meeting was not accompanied Miss Petrescu shouted at her and don't said don't tell me what regulations I have to follow the claimant suffered a panic attack for 30 to 40 minutes during this meeting. The Tribunal has already dealt with this allegation above. The Tribunal repeats that it rejected the claimant’s evidence. On the balance of probabilities, the Tribunal found that Miss Petrescu did not say this to the claimant; the purpose of the meeting was simply to understand the reason for the claimant’s unauthorised absence. There was also a dispute of evidence as to whether Miss. Petrescu said to the claimant “don't tell me what regulations I have to follow”. The Tribunal did not find, on the balance of probabilities, that this was said either by Ms. Petrescu and accepted the evidence of Miss. Petrescu. The Tribunal found Miss. Petrescu to be a conscientious professional who remained so throughout the meeting and who had made a contemporaneous note of the discussion at page 476 to 477 after the interaction with the claimant. The note does not contain any of the serious allegations made by the claimant. This allegation fails. Disability Discrimination[115]There is no dispute that the claimant met the definition of disability within the meaning of section 6 of the Equality Act 2010 from 13 December 2021. The claimant alleges she met the definition on 11 December 2021 but makes no specific discrimination allegations on 11 or 12 December 2021. Pursuant to the overriding objective the Tribunal did not consider that it was necessary to determine this, but the claimant has requested that we do so.[116]The claimant has the burden of establishing that she met the definition set out in section 6 of the Equality Act 2010 at the material time.[117]The claimant referred in her witness statement at paragraph 20 that she was subject to ongoing abusive deceptive and arbitrary discrimination behaviours during the night shift of the 11 and 12 December and stated this treatment culminated in a severe panic attack. “The intense stress of these events precipitated acute anxiety and depression conditions that were medically documented during her subsequent hospitalisation at New cross hospital in Wolverhampton”. The claimant also referred to paragraph 23 of her witness statement to “being hospitalised on the 12th of December and that medical examinations confirmed that she had developed mixed depression and anxiety”. However, The Tribunal also took into account that the OH assessment dated 4 December 2021 page 463 refers to the claimant at page 464 that she needed mental health support since the COVID. OH advised the claimant to contact the respondent’s mental health practitioner. In her evidence when asked to perform the critical role on 12 December the claimant said she was not well enough. The discharge letter from the hospital dated 12 December 2021 page 479 described the claimant as having chest pain and tingling sensation.[118]On the basis of this evidence the Tribunal was not satisfied that the claimant had a mental impairment of depression and/or anxiety on 11 and 12 December 2021. The Tribunal was not satisfied on the limited information that any impairment had a substantial adverse effect on her ability to carry out day-to-day activities or in the absence of medical treatment including medication or take other measures to treat or correct the impairment, any alleged impairment had a substantial adverse effect on her ability to carry out day-to-day activities without the treatment or other measures. There was no evidence before the Tribunal to consider whether the effects of the impairment long term namely last at least 12 months or whether they likely to last at least 12 months; if not were they likely to recur in the sense that it may well happen (see Boyle v SCA Packaging 2009 UKHL 37). In the circumstances the Tribunal concluded that the claimant was disabled from 13 December 2021 and not before. Direct disability discrimination The respondent instructed her to attend work on 17 December 2021 while she was unfit and signed off by her doctor. The claimant says her line manager Sanvir Khunkhun forced her to attend work saying that if she took time off she would have to take it as annual leave.[119]There is a dispute of evidence as to whether Mr Khunkhun behaved in the manner alleged. The Tribunal has already expressed its findings on the credibility of the witnesses; it preferred the evidence of Mr Khunkhun and did not find the allegation made out. The claimant had attended hospital on 12 December 2021 page 479 and the discharge sheet refers to the claimant's condition as “chest pain/tingling sensation”. The claimant was not diagnosed with depression at that appointment. The claimant was actually not signed off work until she obtained a retrospective fit note on 5 January 2022 which signed her off retrospectively for the period 13 December 2021 to 16 January 2022 due to “mixed anxiety and depressive disorder”. The claimant was on sickness absence from 19 December 2021 and returned on 17 January 2022.[120]In the circumstances the claimant’s allegation does not make sense; the claimant had not been actually signed off by her doctor on 17 December 2021 and Mr. Khunkhun could not therefore have required her to attend work contrary to her fit note. The Tribunal did not find this allegation made out on the facts. This allegation fails. The respondent ignored the claimant’s risk assessment carried out on 14 December 2021 by instructing her to return on 17 December.[121]There was no risk assessment carried out on 14 December 2021 as already found by the Tribunal. A welfare chat between the claimant’s manager, Mr. Khunkhun, and the claimant took place see page 492 whilst the claimant was absent from work. The claimant’s OH assessment which had been carried out on 4 December 2021 at page 463 was discussed. The Tribunal found in accordance with his evidence, that Mr. Khunkhun confirmed the adjustments recommended in the OH assessment would be put into place namely the claimant was fit to work with temporary adjustments. The claimant was not instructed by Mr. Khunkhun to return to work on 17 December. The Tribunal does not find this allegation made out on the facts. The allegation fails. The respondent took into account the claimants idle time when she was sick but still attending work between 17 December and 19th of March 2022 inclusive.[122]The claimant was absent from work from 20 December 2021 returning to work on 17 January 2022 (see page 562). The claimant was absent from work due to COVID until 30 January. The claimant then worked 5 further shifts and went absent on sick leave from 7 February until 19 March 2022. During the hearing, the claimant’s manager, Mr. Khunkhun informed the Tribunal he had told his team including managers on other shifts that they should not have any discussions with the claimant about excess idle time. He also stated reassured the claimant that shift leaders were aware of the temporary adjustments in place. The claimant did not express any dissatisfaction with the level of support she was receiving from managers. This is clear from the risk assessment dated 6/7 February 2022 at page 613. The claimant did not address the issue of idle time in her witness statement before the Tribunal. The Tribunal did not find this allegation made out on the facts. The Tribunal contrary to the claimant’s criticisms of her treatment; the respondent took the claimant’s health seriously; ensuring that she was made aware of EAP; referring her promptly to OH; meeting with the claimant to discuss her welfare; conducting a risk assessment and making temporary adjustments. This allegation Indirect disability discrimination Were all FC associates subject to productivity targets requiring them to put away 2000 items per night ? Was this PCP applies to claimant while she was signed off sick by her doctor but still attending work (the claimant says she could not comply with the targets because of her depression)[123]There was a dispute of evidence between the claimant and her manager Mr Khunkhun. Mr Khunkhun informed the Tribunal (and the Tribunal accepted his evidence) that although the respondent did have productivity targets the targets were not 2000 items per night (see his witness statement to paragraph 66; “this would not be possible”). The respondent sets targets through labour planning every week and the targets are different within each process. The Tribunal also notes that in the welfare meeting dated 14 December 2021 the respondent had accepted the Occupational Health recommendations for temporary adjustments to be put in place to take account of the fact that the claimant may not be able to meet her productivity targets (see page 492). The evidence of Mr. Khunkhun was that these were to be followed and he informed other managers/leads.[124]In the circumstances the Tribunal does not find that the respondent applied the pleaded the PCP nor as the claimant alleged whilst the claimant was signed off sick but still working. The claimant was not required by the respondent to attend work whilst she was signed off sick. The PCP substantially disadvantage the claimant in that she was subjected to disciplinary proceedings for not being able to comply with the targets and she received a first written warning on 9 February 2022 for failing to maintain levels of productivity.[125]There was no evidence before the Tribunal that the claimant had received any disciplinary action or a written warning in February 2022. The claimant’s manager, Mr Khunkhun explained he was unaware of any disciplinary action taken against the claimant. The Tribunal finds if the claimant had been subjected to disciplinary action, it is most likely that her manager would have been aware of it. Mr Singh’s evidence to the Tribunal was that under the respondent’s process a written warning would have triggered a meeting with HR and no such meeting occurred. The claimant did not provide any documentary evidence to the Tribunal that she received a first written warning. The Tribunal does not find that the claimant was subject to disciplinary proceedings and therefore not substantially disadvantaged as alleged. She said it was Mr. Singh.[126]In the circumstances the Tribunal dismissed the claim for indirect discrimination.[127]In all the circumstances, all of the claimant's claims are not well founded and are all dismissed.