Ms A Wilson-Shaw v North of England Commissioning Support Unit: 1302793/2022

EMPLOYMENT TRIBUNALS

Case No 1302793/2022

Between

Ms A Wilson-ShawClaimant

North of England Commissioning Support UnitRespondent

Before

Employment Judge Algazy

Mr D.Panton - Consultant for claimant

Ms H. Ifeka - Counsel for respondent

Date 12 August 2024

JUDGMENT

[1]The claims set out below are not well founded and are dismissed:• Discrimination arising from disability (section 15 Equality Act 2010)

• Victimisation - disability (section 27 Equality Act 2010)

[2]The claims for direct discrimination on grounds of disability and for a failure to make reasonable adjustments are dismissed on withdrawal by the Claimant. Oral reasons having been given, the parties were and are reminded of Rule 62(3) of Schedule 1 of the 2013 Rules regarding written reasons not being produced unless requested and/or subsequently requested in accordance with Rule 62(3). Jacques Algazy K.C. On 12 August 2024

[1]The claims set out below are not well founded and are dismissed:• Discrimination arising from disability (section 15 Equality Act 2010)

• Victimisation - disability (sections 27 & 39 Equality Act 2010)

[2]The claims for direct discrimination on grounds of disability and for a failure to make reasonable adjustments are dismissed on withdrawal by the Claimant.

REASONS

JUDGMENT AND ORAL REASONS WERE HANDED DOWN ON 8 AUGUST 2024 WRITTEN REASONS REQUESTED BY THE CLAIMANT ON 11 AUGUST 2024

CREDIBILITY

[1]INTRODUCTION1.1 The Claimant (“C”) is employed by the Respondent organisation (“R”) as a band 7 consultant. She has been in post since 2nd July 2018. Early conciliation started on 16 February 2022 and ended on 29 March 2022. The claim form was presented on 31 May 2022.

1.2 The Claimant brings a number of disability discrimination claims which are more fully particularised below. The claims before the Tribunal at the outset of the Hearing were for: a) Direct discrimination because of sex or disability, pursuant to sections 13 and 39 of the Equality Act 2010 (“EqA 2010”); b) Discrimination because of something arising in consequence of a disability, pursuant to sections 15 and 39 EqA 2010; c) Failure to make reasonable adjustments, pursuant to sections 20 and 21 EqA 2010; d) Victimisation, pursuant to sections 27 and 39 EqA 2010.

1.3 The claim for direct discrimination was withdrawn on 29 April 2024 as was part of the claim for reasonable adjustments. The balance of the reasonable adjustments claim was withdrawn on 6 August 2024.

1.4 The agreed List of Issues (“LOI”) [57-59], and as communicated in an email from the Respondent’s solicitors to the Tribunal dated 16 September 2022 [544], sets out the following concessions:

• The Respondent (“R”) concedes that C is a disabled person by reason of anxiety and that it had knowledge of the condition from 8 January 2021.

• R also concedes that C is a disabled person by reason of depression and that it had knowledge of the condition from March 2021.

1.5 The Respondent resisted the claims that continued to be pursued but did not rely on any time jurisdiction points that were previously identified in the LOI.

1.6 The Claimant was represented by Mr D Panton (Consultant) and gave evidence on her own behalf. The Respondent was represented by Ms H.Ifeka (Counsel) and called 3 witnesses. They were Sarah Rutter, Band 8C Senior Manager and the claimants line manager, Rachel Helmn, Head of Consultancy – Growth Lead who heard the Claimant’s grievance and Steven Childs, Managing Director who heard the Claimants grievance appeal.

1.7 There was an agreed hearing bundle and a further short additional bundle. References in square brackets are to the hearing bundle unless otherwise specified.

1.8 The Tribunal also made adjustments to assist the Claimant. Regular breaks were built into the Tribunal process that was adopted and additional further breaks were afforded whenever requested.

[2]THE ISSUES2.1 These were initially set out in the agreed LOI dealing with liability only. The Tribunal declined to allow a late application to amend the LOI made on day 1 of the hearing. The Tribunal so ruled having considered the balance of prejudice between not allowing the Claimant to amend and the prejudice to the Respondent with such a very late amendment (9.00 pm the night before) given the chronology set out by the Respondent and in particular the fact that it was made after witness statements had been exchanged.

2.2 References to the issues in these reasons refer to the paragraph numbering in the LOI below: Discrimination arising from Disability (EQA 2010, ss 15 (1) (a) and 39 (2))

[1]Did R treat Claimant unfavourably because of something arising in consequence of C’s disability, namely not being able to perform all of her work-related tasks at the required performance level?

[2]The unfavourable treatment alleged by C is as follows: (a) The decision of R to submit C to a Performance Improvement Plan (“PIP”) on the 24th January 2022

[3]Was any such unfavourable treatment a proportionate means of achieving a legitimate aim, within the meaning of EQA 2010 s15(1) (b)? R contends that the treatment was a proportionate means of achieving a legitimate aim in that the PIP was implemented as an aid to improve C’s performance in her role and to identify the support required. Victimisation (EQA 2010 ss27 and 39

(2)

[4]Did R victimise C by failing to uphold her grievances of February 14th 2022 and her subsequent appeal?

[5]The protected acts relied on by C are her grievance of the 14th February 2022 and her subsequent appeal of the 11th April 2022. 3. THE FACTS3.1 On the evidence presented to the Tribunal, we found the following material facts and such additional facts as are referred to in the Conclusions section of these reasons. We do not in these reasons set out all of the background material and evidence but only such material and salient facts as are required to determine the two remaining extant claims. CREDIBILITY

3.2 The Respondent makes a number of submissions at §§ 62 to 76 of its written submissions regarding the credibility of the Claimant. We broadly accept the strength of those submissions which included, non-exhaustively, references to a number of statements in her evidence to the Tribunal which were shown to be demonstrably inaccurate and/or unsupported by evidence, namely:3.2.1 R’s Performance Management Policy included a requirement that an employee would be referred for Occupational Health (“OH”) assessment prior to being placed on a PIP;

3.2.2 C had had no performance issues prior to the SSP project [Witness statement (“w/s”) at §59].

3.2.3 C had managed a project on her own in or around August 2021;

3.2.4 Excel was not a core skill for a Band 7 consultant, C was not expected to have a high degree of Excel skills, and, in a related point, C’s experience was “vast and appropriate” (her words in crossexamination);

3.2.5 C had worked weekends;

3.2.6 The second OH report had recommended the PIP be lifted.

3.3 Whilst not doubting the sincerity of the evidence given by the Claimant, the Tribunal had serious reservations concerning the reliability of the Claimant as an accurate interpreter of documents and historian of events.

3.4 We refer, in particular, to the significant assertion initially made in her evidence to the Tribunal that the Respondent’s Policies required there to be a referral to Occupational Health before the Performance Improvement Plan was implemented. We find that this was plainly not the case on the evidence and documentation before the Tribunal.

3.5 It is also the case that, contrary to the Claimant’s evidence before the Tribunal, the 2021 OH report did not make a finding that the Claimant was disabled.

3.6 In contrast, we reject the submission advanced on the Claimant’s behalf that “None of the Respondents witness were credible on core areas”. We concluded that each of the witnesses called by the Respondent gave considered and compelling evidence which, we find, was not shaken by detailed and careful cross-examination.

3.7 In consequence we approached the evidence of the Claimant with considerable caution where it was unsupported by contemporaneous documentation. However, the Tribunal considered each material conflict of facts or disputed factual issue on its own merits and did not adopt a blanket approach to the evidence of the parties. THE CLAIMANT’S CONTRACT AND RELEVANT APPLICABLE POLICIES

3.8 In cross-examination, the Claimant was taken to her contract [73-80] and the non-contractual job description [64-68] which she accepted applied to her employment.

3.9 The Respondent operates a Managing Work Performance Policy which sets out the procedure by which a line manager should bring to the employee’s attention performance failures and put in place a short-term plan to improve performance [440]. The procedure includes both an informal and a formal process. The choice of procedure depending on the facts of any particular case.

3.10 The Claimant was line managed by Sarah Rutter (“SR”) as from April/May 2019. THE CLAIMANT’S PERSONAL/HOME ISSUES AND CIRCUMSTANCES

3.11 These issues became known to the Respondent, namely SR, in late 2019 and were explored in some detail during the investigation into the Claimant’s subsequent Grievance on 14 March 2022 [315-322]. It suffices, for the purpose of these reasons, to note that these matters involved a protracted, difficult and distressing divorce and related Court proceedings which took a number of years to resolve.

3.12 Those issues impacted the Claimant’s mental health. They also resulted in a number of absences from work in 2019, 2020 and 2021, principally for reasons described as “Family Stress” in various Return to Work (“RTW”) forms

3.13 After an absence of 31 days from 8 January to 19 February 2021 for “Family stress” as stated in the RTW form initially completed by the Claimant, there was a meeting with SR on 22 February which was noted up and contains the following key matters: SUMMARY OF PREVIOUS ABSENCE (last 12 months): 09 – 11 December 2020, 3 days, Family Stress 16 – 17 April 2020, 2 days, Family Stress KEY DISCUSSION POINTS DURING MEETING: I confirmed with you that you felt well enough to return to work, we discussed a phased return using annual leave as you have 9 days to take by the end of March 2021. The agreed plan is to be worked through later today and confirmed tomorrow. I stressed to you the importance of taking things slowly and allowing yourself to ease back in gradually. I asked you to complete the NHS emotion wellbeing toolkit. by 08 March 2021, following this we will have another meeting to see how you are feeling. Is a stress risk assessment required? Yes, to be progressed this week. Is a referral to OH required? Yes, to be made this week. EMPLOYEES COMMENTS Alison said she feels supported and is happy with the above discussion; she was unsure of how a phased return works but would like to take that option. AGREED ACTION POINTS: I will send you an example of a phased return for you to review and decide how you would like to proceed with yours. Plan to be agreed no later than 4pm 23 February 2021. I asked you to complete the NHS Emotion Wellbeing Toolkit by 08 March 2021, we will then meet to discuss this. A referral to OH would be made to ensure your wellbeing and to see if any further support is available to you. I will be arranging to do a Stress Risk Assessment with you. Due to your sickness absence pattern I informed you that any further absences prior to 16 April 2021 would trigger a formal attendance meeting. Although you have currently hit a trigger point for attendance I informed you that I would not be applying the Attendance Management Policy at this point.

3.14 We pause in the narrative to note that the approach taken by SR in this meeting was, in our judgment, entirely in keeping with the sensitive, light touch and supportive management style that characterised her dealings with the Claimant. That conclusion is based on an overall view of the entirety of the evidence that we heard regarding the relationship between SR and Claimant. We also note the Claimant’s own observations regarding SR at paragraphs 7 and 77 of her witness statement as well as her answers in cross – examination on this topic. THE OH REPORT OF 30 MARCH 2021

3.15 The report includes the following passages: “OH OPINION ….A well validated mental health questionnaire was completed and the results identified depression and anxiety to be mild but her care is being managed by her GP, she has received appropriate counselling and she is managing with her activities of daily living. In my opinion, the reason for Alison's reduction in psychological wellbeing is not clinical, it appears to be purely reactive to the prolonged personal stress that she has endured and this remains ongoing….. MANAGEMENT ADVICE From my assessment today, I consider Alison to be fit to remain in work as the structure and routine is likely to be beneficial to her psychological wellbeing. However, it is likely that Alison will remain vulnerable to stress triggers whilst her personal issues remain ongoing. If operationally feasible, it is therefore advised for Alison to continue to be permitted to remain focused on just one aspect of work until her personal situation has become more manageable. I do not see any clinical barriers to prevent Alison from working her full-time hours and carrying out her duties with this measure in place. A system of open communication and continued supportive management will need to be maintained and fortnightly managerial meetings are advised until Alison has regained her usual psychological resilience. Her symptoms have not been triggered by work and I am unable to identify any other adjustments that would further alleviate Alison's symptoms and support her in work. Due to Alison's ongoing personal issues, future exacerbation in symptoms and associated absences cannot be ruled out completely. However, the long term prognosis for stress is good because a full recovery is expected and once Alison's personal issues have been resolved, then there is no indication that future symptoms and associated absences are likely to re-occur. REVIEW A routine OH review is not required.”

3.16 The Respondent put the following supportive measures in place:3.16.1 An incremental phased return to work [132; 331-332];

3.16.2 Time off to attend therapy on Wednesday afternoons, which was treated as paid ‘working time’ by R [324, 316];

3.16.3 Reduction in the scope of her role from Band 7 to Band 4/5 level from March 2021-December 2022 [SR §16];

3.16.4 Deciding not to invoke the Attendance Management Policy [133];

3.16.5 Regular 121 meetings with C [SR w/s §19];

3.16.6 Coaching with Duncan Harper in Summer 2021 [SR w/s §25 - ‘“The coaching intervention was intended from a perspective of wellbeing, professional development and performance.”]. PERFORMANCE ISSUES PRIOR TO SSP (SST) PROJECT

3.17 It had been the Claimant’s case before the Tribunal that there had not been any performance issues raised with her before the events concerning the SSP project around November 2021. See e.g. §51 of the Claimant’s witness statement: “I think it is important to highlight to the Tribunal that prior to the PIP being imposed that there was no documentary evidence in the bundle that there had been criticisms of my work from those consultancy projects that I worked on.”

3.18 However, the evidence before the Tribunal gainsaid such an assertion. This included the following matters:3.18.1 SR and other line managers had had concerns about the Claimant’s ability to perform at Band 7 level from at least summer 2021:

3.18.2 Adrian Mathews, Programme Lead, Midlands NECS Consultancy, had expressed detailed concerns in an email dated 18 January 2022 [214-215] concerning C’s work between July 2020 and November 2021.

• See e.g.121 review on 16/6/21[170]

• SR’s evidence to Rachel Helmn in the grievance investigation on 21 March 2022 [333 & 337];

3.19 After being taken to the evidence in cross-examination and in answer to the question “Is it still your evidence that your performance on SSP was the only time performance issues were raised by colleagues in 2021?”, the Claimant conceded that that the SSP example was not the only time performance issues had been raised.

3.20 There was also a particular area of concern highlighted in the 121 on 16 June 2021 [165]: “We then discussed Alison’s desire to progress, I said there was a skills gap at present and that we needed to close that for Alison to be able to move forward. One of the biggest gaps presently was Microsoft Excel skills, I said I would send the link for NECS training as there are quite a few short courses that would benefit Alison. As there isn’t a programme identified yet for Alison to move onto when this one finishes at the end of June I suggested she take the opportunity to upskill and make sure she is up to date on all training.” Despite being chased to undertake the training, this had not been completed by February 2022. This included bespoke sessions which were cancelled by the Claimant, who said she chose to prioritise clients needs. However, as the Respondent correctly points out, the Claimant was actually engaged in somewhat limited client work during significant periods of the material time.

3.21 In her evidence to the Tribunal, SR had said that Excel was fundamental to the role the Respondent did with all their clients. It was also required internally for the business. SR considered that the degree of Excel skill needed for a Band 7 role was, as a minimum, an intermediate level of skill. This would be consistent with the Claimant’s contractual documentation.

3.22 In relation to the 121 notes not consistently referencing such concerns, SR told the Tribunal, in evidence which we accept, that her overall preference was to try not to emphasise performance issues in the 121 meetings. This was intended to avoid exacerbating the Claimant’s situation and to alleviate the Claimant’s stress. We also note and accept SR’s evidence that she delayed addressing the Claimant’s performance issues and placing her on a PIP till after Xmas 2021 for like reasons.

3.23 The assertion made in the Claimant’s submissions that the decision to place the Claimant on a PIP was because the Claimant had been removed from the SSP project does not reflect the evidence before the Tribunal. As SR explained, the informal PIP resulted from an accumulation of concerns from around April 2021 onwards. The Claimant’s removal from SSP was part of the piece and not the only reason that an informal PIP was indicated. We accordingly reject the Claimant’s further submission that “Had the Claimant not been removed from the project then the Respondent would not have placed her on a PIP.” REMOVAL FROM SSP- NOVEMBER/DECEMBER 2021

3.24 The background to the events and performance issues leading up to the Claimant’s removal from this project are summarised in an email from Sue Hart (“SH”) , the Engagement lead on SSP, to SR dated 19 December 2021: “Hi Sarah At the point the client raised the issue of Alison's performance with myself, she had been in post approximately one month. After her induction Alison had been given the task of producing a project plan to set out actions and milestones in respect of a national ICS policy deliverable. Alison also had been given the ongoing task of chasing actions against delivery of work which other colleagues were delivering – essentially a project manager function. In terms of roles and time allocation I would estimate a 80:20 split against the two key work areas. Whilst the more operational and lower level task of action chasing was delivered fairly well, despite being asked several times over the previous two weeks period for a copy of the draft project plan Alison said she was still working on bringing it together. Finally Alison shared a draft of the project plan . The client was not happy because:

• Contents did not reflect adequately the steps required

• Formatting and style varied

• Flow was disjointed

• The document was incomplete and in the client view not usable. I reviewed the content myself and would agree that the work was not of the standard expected. The client knew that Alison has some personal issues which were posing a general distraction day to day including last minute time off. Although the client was generally sympathetic to Alison's situation the policy team were under pressure due to workload and vacancies and could ill afford wasted resource and time. I took the lead in the discussion and suggested it may be better for all parties for Alison to be fully withdrawn in the interests of both Alison as she appeared to be struggling, the client and to minimise reputational damage for NECS.” JANUARY/FEBRUARY 2021 AND THE INFORMAL PIP

3.25 The Claimant had been engaged in internal, non-client facing, work after SSP. Performance issues continued however see e.g. feedback received on 14 January 2021 [213].

3.26 The possibility of a PIP was raised by SR at the 121 on 11 January 2021 [210]: With this in mind we discussed putting an informal Performance Improvement Plan (PIP) in place. I said that I would get feedback from programmes over the last six to nine months and from the work that has just been done with Kate.

3.27 SR held a Teams meeting with C on 24 January 2022, during which the PIP template was populated. We prefer SR’s evidence that this was used and shared on screen with C. We can see no reason why a blank document as opposed to the template would have been used as was asserted by the Claimant. See SR w/s at § 49: I prefer to type it in front of the individual so that there are no surprises when an initial draft is provided. We discussed the areas that needed improvement, how success was to be measures and how we could support Alison to get to where she needed to be. The content of our discussion from the meeting can be found in the PIP at pages 230 to 236.

3.28 The completed document was sent to the Claimant on 1/2/22, the date of the PIP commencing which was expanded to 4 months from 3 to allow the Claimant additional time to achieve the objectives. The Claimant responded to SR’s email the same day to confirm that as it was an informal process she had struck through the sentence on the first page that read "If the expected outcomes are not achieved/improvements attained more formal action may be initiated under the relevant procedure" and attached the amended plan [229,237 to 243.] SR sought to explain to the Claimant that the PIP template was an HR document and that the wording was standard for use in an informal monitoring process and that she was unable to remove it.

3.29 On 2/2/22, the Claimant wrote to SR raising concerns about the PIP and the manner of its implementation [244]. SR forwarded this to HR with her comments appended underneath in red [549].

3.30 SR met the Claimant on 8 and 11/2/24 to try and address the issues [561/562]. On 11/2/24, the Claimant was offered an OH referral, which the Claimant did not accept, as well as to pause the PIP pending the referral. Nor were any reasonable adjustments required by the Claimant at that time.

3.31 With reference to the question of previous OH referrals being offered, SR ‘s evidence was that in her 121’s with the Claimant, she used the “shorthand” of “No requirement for additional support”. This encompassed offers of OH referrals as well as counselling, buddying, mentoring, additional 121s and PAM assist (a mental health direct line). THE GRIEVANCE

3.32 This was issued on 14/2/22. As acknowledged, it was prepared with the benefit of legal advice. Three grounds were identified at [290] with particulars set out below [291-297]:

[1]That the decision of my employer to subject me to a Performance Improvement Plan (PIP) on the 24th January 2022, constitutes unlawful discrimination because of my disability and contrary to s13 EQA 2010

[2]Further or in the alternative that the decision to subject me to a PIP was as a consequence of matters arising out of my disability and therefore constitutes unlawful discrimination contrary to s15 EQA 2010

[3]Further or in the alternative that the decision to subject me to a PIP was as a result of my employer failing to make the required reasonable adjustments and therefore is contrary to s20-21 of the EQA 2010. 3.33 On 15.02.2022, HR (Beth Coombes) replied and asked the Claimant how she “would like this resolved” [299]. The Claimant replied the same day asking for the grievance to “be taken forward as either: a formal grievance process, or a referral is made to Occupational Health” [ 298-299]. HR considered that an Occupational Health referral should be completed as the Claimant had raised concerns regarding an anxiety diagnosis and asked SR to make the referral as the Claimant’s line manager [298 - 300]. 3.34 The PIP was paused on 18 February 2022. Beth Coombes wrote to the Claimant on 21 February 2022: “Hi Alison, Your Occupational Health outcome report will outline your anxiety disorder and the reasonable adjustments that should be made to accommodate your condition. As part of this, we will put in place any reasonable adjustments and pending their success this will allow Sarah as your line manager to review the need for a PIP. However, if the occupational health referral states that at this time there are no adjustments needed to allow you to complete your substantive role it may be that the PIP is reinstated sooner. To note, during the time where the adjustments are trialled/ put in place you should have detailed one to ones with Sarah, outlining any health and wellbeing concerns that are causing you stress and could be impacting your performance. You should also ensure you are forthcoming when adjustments are not working for you, so they can be reviewed or a further occupational health referral may be needed. I hope this clarifies the situation.” 3.35 The 2nd OH report is dated 26/2/22 [308-309]. It includes the following points:• The Claimant had been under extreme personal stress which impacted her mental wellbeing.

• The OH assessor concluded “Alison remains fit for her full hours and remit of her job role”.

• If operationally feasible the Respondent could allow the Claimant to have increased comfort breaks… when she feels her anxiety is becoming overwhelming.

• If operationally feasible, lighter duties and extended deadlines were likely to be beneficial.

• A stress risk assessment and access to ‘Able Futures’ was recommended.

• A Disability Checklist had been completed which indicated it likely that the Claimant would be considered to have a disability for the purposes of UK disability discrimination legislation. 3.36 It did not recommend that the PIP be removed and other than a stress risk assessment, the Respondent was not advised to take any additional steps other than those that had previously been put in place for the Claimant as adjustments. 3.37 The evidence of SR to the Tribunal was that she was unaware that the Claimant was disabled until some point in February 2022 after she had read the grievance. “ I didn't know the claimant was disabled up till the point of reading this document. I was not aware that the claimant was disabled as it was always classed as family/home stress….It is not correct to say I knew she was disabled as of 8 January 2022 ….GP notes say family stress and the Claimant reported it as such.” SR was, of course, also aware of the opinion set out in the 2nd OH report. 3.38 The evidence of RH was also that she was unaware that the Claimant was disabled at the time that she was placed on the PIP. 3.39 Following concerns raised by the Claimant , a 3rd OH (follow up referral) was made. The Claimant wanted Occupational Health to address whether her disability affected her performance, and which therefore gave rise to the PIP. In this report [310/311] OH said they could not comment on the PIP being put in place. However, OH observed that personal, and now perceived workplace stressors were adversely impacting on Alison's health condition which had the potential to cause a negative impact on her performance at work. The report also confirmed that Alison remained fit for work and reiterated the previous recommendations for a stress risk assessment to be conducted and a temporary reduction in her workload. 3.40 A grievance meeting took place on 14/3/22 which was held by Rachel Helmn, (“RH”) the appointed Grievance Manager [315-322]. The grievance outcome was communicated to the Claimant at a meeting with RH on 28/3/2022 [339- 342] and confirmed in writing in a letter dated 4/4/2022 [343- 346]. 3.41 The grievance outcome made the following findings:

• The Performance Improvement Plan (PIP) which was implemented on the 24 January 2022 will no longer exist on your file.

• Occupational Health guidance should have been sought by your Manager prior to the implementation of the Performance Improvement Plan (PIP) due your circumstances at that current time.

• Occupational Health confirmed within a report on the 25 February 2022 that you are “Likely" to be covered under the Disability and Equality Act 2010. As we are now informed of this reasonable adjustments can be explored to support you within your role at NECS. It also made a number of recommendations, and in particular the introduction of a support plan:

• A support plan to be implemented detailing support needed for you role such as training, coaching and agreed reasonable adjustments. This document will be a live document which will be discussed and reviewed within your 1:1's with your Manager.

• A Workplace Stress Risk Assessment to be completed as well as Wellbeing Action Plan. Both documents will be live throughout your support plan period and will be reviewed within your 1:1's with your Manager.

• Hourly fortnightly 1:1's to be put in place with your Manager.

• Coaching to be arranged to support you in line with your support plan and other needs.

• At any point an Occupational Health referral may need completing by your Manager if anything changes with your health and wellbeing.

• A facilitated conversation to take place between yourself and Sarah Rutter your line Manager. The facilitated conversation will be completed by myself and I will be focusing on working together moving forward. I confirmed that following the facilitated conversation if you feel it has not provided you with reassurance of support going forward myself and Alex Phillips, HR Business Partner will discuss the next steps. 3.42 The Claimant complains that the specific issues of disability discrimination were not addressed by RH. In her evidence to the Tribunal, RH repeatedly explained that she took the view that she was not legally qualified to arrive at any such assessment. She saw her role as limited to making findings and proposing recommendations to resolve the underlying issues raised by the Claimant so as to find a way forward for all concerned. 3.43 The Claimant exercised her right to appeal and did so the same day [347]. The grounds were that the grievance failed to consider:

• whether the imposition of a PIP was discriminatory;

• whether the Claimant’s health concerns affected her performance to such an extent that it resulted in a PIP being issued;

• whether NECS failed in their statutory duty to make reasonable adjustments prior to subjecting her to a PIP;

• the injury to feelings allegedly suffered by Alison as a consequence of being issued with a PIP; and

• whether the management reporting line which led to Alison being issued with a PIP was appropriate and whether trust and confidence could be restored. 3.44 On 21.04.2022 Stephen Childs (“SC”) made contact with the Claimant to arrange the appeal [349]. A meeting was held on 05.05.2023 [468-473]. SC adjourned to consider the appeal and communicated the appeal outcome by letter dated 9/5/22 [350-353]. 3.45 The appeal was partially upheld and confirmed that SR should have involved OH in advance of the PIP. Other elements of the appeal were also upheld including a change of Line Manager to Duncan Harper. 3.46 SC says this in his w/s at §§18 and 19: “ 18 ….Alison had understood the PIP to be a punitive measure to punish her. This is not the purpose of a PIP. A PIP exists to support improvements in performance where necessary and can be applied to both disabled and non-disabled employees, depending on what is needed. Alison had acknowledged that her performance had deteriorated. Performance levels are critical to organisational success and it is accepted that there are occasions when people need support to maintain good performance levels. It is therefore important that as an organisation we support our employees to address performance concerns as early as possible to ensure that we provide our services to the standard our customers expect. 19. Whilst I acknowledged that there appeared to have been a miscommunication between Alison and Sarah as to the reason for the PIP, I had no concerns with the imposition of it and agreed that it was appropriate for Sarah to suggest implementing support in the form of a PIP in the circumstances. I confirmed in my outcome letter that I did not believe that the implementation of the PIP amounted to unlawful discrimination and therefore this element of Alison's appeal was not upheld.” 3.47 SC confirmed that the stage 2 grievance identified a management oversight to consider Occupational Health advice in the context of C’s performance however that did not constitute discrimination. 3.48 The Claimant issued her claim on 31/05/2022.

[4]THE LAW ACTUAL AND CONSTRUCTIVE KNOWLEDGE OF DISABILITY4.1 A respondent must know three things for actual knowledge, firstly the nature of the impairment; secondly that the impairment has a substantial adverse effect on day-to-day activities; and thirdly it is long-term or likely to be long-term.

4.2 The EHRC Code provides guidance on the issue of knowledge: §6.21 “If an employer's agent or employee … knows, in that capacity, of a worker's disability, the employer will not usually be able to claim that they do not know of the disability.” See also §5.14 and §5.15 of the Code reproduced in the extract from A v Z Ltd

[2019] IRLR 952

below.

4.3 The Supreme Court in A v Z laid down the following guidance at §23, per Lady Hale: “23. In determining whether the employer had requisite knowledge for s 15(2) purposes, the following principles are uncontroversial between the parties in this appeal:

(1) There need only be actual or constructive knowledge as to the disability itself, not the causal link between the disability and its consequent effects which led to the unfavourable treatment, see York City Counsel v Grosset [2018 ] ICR 1492 CA at para 39.

(2) The Respondent need not have constructive knowledge of the complainant's diagnosis to satisfy the requirements of s 15(2); it is, however, for the employer to show that it was unreasonable for it to be expected to know that a person (a) suffered an impediment to his physical or mental health, or (b) that that impairment had a substantial and (c) long-term effect, see Donelien v Liberata UK Ltd (2014)

UKEAT/0297/14

[2014] All ER (D) 253

(Dec) at para 5, per Langstaff P, and also see Pnaiser v NHS England (2016)

UKEAT/0137/15/LA

[2016] IRLR 170

EAT at para 69 per Simler J.

(3) The question of reasonableness is one of fact and evaluation, see

[2018] EWCA Civ 129

[2018] IRLR 535

CA at para [27]; nonetheless, such assessments must be adequately and coherently reasoned and must take into account all relevant factors and not take into account those that are irrelevant.

(4) When assessing the question of constructive knowledge, an employee's representations as to the cause of absence or disability related symptoms can be of importance: (i) because, in asking whether the employee has suffered substantial adverse effect, a reaction to life events may fall short of the definition of disability for EqA purposes (see Herry v Dudley Metropolitan Council [2017 ICR 1610 per His Honour Judge Richardson, citing J v DLA Piper UK LLP

[2010] ICR 1052

, and (ii) because, without knowing the likely cause of a given impairment, “it becomes much more difficult to know whether it may well last for more than 12 months, if it is not [already done so]”, per Langstaff P in Donelien EAT at para 31.

(5) The approach adopted to answering the question thus posed by s 15(2) is to be informed by the Code, which (relevantly) provides as follows: “ 5.14 It is not enough for the employer to show that they did not know that the disabled person had the disability. They must also show that they could not reasonably have been expected to know about it. Employers should consider whether a worker has a disability even where one has not been formally disclosed, as, for example, not all workers who meet the definition of disability may think of themselves as a 'disabled person'. 5.15 An employer must do all they can reasonably be expected to do to find out if a worker has a disability. What is reasonable will depend on the circumstances. This is an objective assessment. When making inquiries about disability, employers should consider issues of dignity and privacy and ensure that personal information is dealt with confidentially.”

(6) It is not incumbent upon an employer to make every enquiry where there is little or no basis for doing so (Ridout v T C Group [1998 IRLR] 628; Alam v Secretary of State for the Department for Work and Pensions

[2010] ICR 665

(7) Reasonableness, for the purposes of s 15(2), must entail a balance between the strictures of making enquiries, the likelihood of such enquiries yielding results and the dignity and privacy of the employee, as recognised by the Code” DISCRIMINATION ARISING FROM DISABILITY- S 15 EQA

4.4 Section 15 of the EqA 2010 provides: “ (1) A person (A) discriminates against a disabled person (B) if (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim. (2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.”

4.5 No comparator is required. Section 15 discrimination requires only that the disabled person shows that they have experienced unfavourable treatment because of something connected with a disability.

4.6 An employer will not be liable for discrimination arising from disability under the EqA unless it knew (or should have known) about the claimant's disability - Section 15(2).

4.7 “Unfavourable treatment” is not defined in the EqA. However, guidance from the Supreme Court emerged in Williams v Trustees of Swansea University Pension and Assurance Scheme and another

[2018] UKSC 65

:4.7.1 Tribunals need to answer two simple questions of fact:

4.7.2 There was little to be gained in trying to differentiate between the broadly analogous concepts of disadvantage and detriment. Similarly, in seeking to distinguish between an objective assessment of the treatment and a blended subjective and objective approach.

4.7.3 Reference to the EHRC Code is helpful, but it could not supplant the statutory provisions. The threshold for demonstrating that treatment was unfavourable was relatively low as the provisions in the code demonstrate.

4.7.4 Particular paragraphs of the EHRC Code that were of assistance included paragraphs 5.7 and 4.9 (from the section dealing with indirect discrimination): §5.7

• What was the relevant treatment?

• Was it unfavourable to the claimant?

• For discrimination arising from disability to occur, a disabled person must have been treated ‘unfavourably’. This means that he or she must have been put at a disadvantage. Often, the disadvantage will be obvious and it will be clear that the treatment has been unfavourable; for example, a person may have been refused a job, denied a work opportunity or dismissed from their employment. But sometimes unfavourable treatment may be less obvious. Even if an employer thinks that they are acting in the best interests of a disabled person, they may still treat that person unfavourably. §4.9

• ‘Disadvantage’ is not defined by the Act. It could include denial of an opportunity or choice, deterrence, rejection or exclusion. The courts have found that ‘detriment’, a similar concept, is something that a reasonable person would complain about – so an unjustified sense of grievance would not qualify. A disadvantage does not have to be quantifiable and the worker does not have to experience actual loss (economic or otherwise). It is enough that the worker can reasonably say that they would have preferred to be treated differently.

4.8 The EAT in Pnaiser v NHS England and another

[2016] IRLR 170

summarised the correct approach to a S.15 EqA 2010 claim at §31: “(a) A tribunal must first identify whether there was unfavourable treatment and by whom: in other words, it must ask whether A treated B unfavourably in the respects relied on by B. No question of comparison arises. (b) The tribunal must determine what caused the impugned treatment, or what was the reason for it. The focus at this stage is on the reason in the mind of A. An examination of the conscious or unconscious thought processes of A is likely to be required, just as it is in a direct discrimination case. Again, just as there may be more than one reason or cause for impugned treatment in a direct discrimination context, so too, there may be more than one reason in a s.15 case. The 'something' that causes the unfavourable treatment need not be the main or sole reason, but must have at least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it. (c) Motives are irrelevant. The focus of this part of the enquiry is on the reason or cause of the impugned treatment and A's motive in acting as he or she did is simply irrelevant: see Nagarajan v London Regional Transport

[1999] IRLR 572

. A discriminatory motive is emphatically not (and never has been) a core consideration before any prima facie case of discrimination arises, contrary to Miss Jeram's submission (for example at paragraph 17 of her skeleton). (d) The tribunal must determine whether the reason/cause (or, if more than one), a reason or cause, is 'something arising in consequence of B's disability'. That expression 'arising in consequence of' could describe a range of causal links. Having regard to the legislative history of s.15 of the Act (described comprehensively by Elisabeth Laing J in Hall), the statutory purpose which appears from the wording of s.15, namely to provide protection in cases where the consequence or effects of a disability lead to unfavourable treatment, and the availability of a justification defence, the causal link between the something that causes unfavourable treatment and the disability may include more than one link. In other words, more than one relevant consequence of the disability may require consideration, and it will be a question of fact assessed robustly in each case whether something can properly be said to arise in consequence of disability. (e) For example, in Land Registry v Houghton

UKEAT/0149/14

[2015] All ER (D) 284

(Feb) a bonus payment was refused by A because B had a warning. The warning was given for absence by a different manager. The absence arose from disability. The tribunal and HHJ Clark in the EAT had no difficulty in concluding that the statutory test was met. However, the more links in the chain there are between the disability and the reason for the impugned treatment, the harder it is likely to be to establish the requisite connection as a matter of fact. (f) This stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator. (g) Miss Jeram argued that 'a subjective approach infects the whole of section 15' by virtue of the requirement of knowledge in s.15(2) so that there must be, as she put it, 'discriminatory motivation' and the alleged discriminator must know that the 'something' that causes the treatment arises in consequence of disability. She relied on paragraphs 26–34 of Weerasinghe as supporting this approach, but in my judgment those paragraphs read properly do not support her submission, and indeed paragraph 34 highlights the difference between the two stages – the 'because of' stage involving A's explanation for the treatment (and conscious or unconscious reasons for it) and the 'something arising in consequence' stage involving consideration of whether (as a matter of fact rather than belief) the 'something' was a consequence of the disability. (h) Moreover, the statutory language of s.15(2) makes clear (as Miss Jeram accepts) that the knowledge required is of the disability only, and does not extend to a requirement of knowledge that the 'something' leading to the unfavourable treatment is a consequence of the disability. Had this been required the statute would have said so. Moreover, the effect of s.15 would be substantially restricted on Miss Jeram's construction, and there would be little or no difference between a direct disability discrimination claim under s.13 and a discrimination arising from disability claim under s.15. (i) As Langstaff P held in Weerasinghe, it does not matter precisely in which order these questions are addressed. Depending on the facts, a tribunal might ask why A treated the claimant in the unfavourable way alleged in order to answer the question whether it was because of 'something arising in consequence of the claimant's disability'. Alternatively, it might ask whether the disability has a particular consequence for a claimant that leads to 'something' that caused the unfavourable treatment.”

4.9 We have already referred to §5.7 of the EHRC Code of Practice on Employment which states that it means that the disabled person ‘must have been put at a disadvantage’.

4.10 The Tribunal also noted §§5.20 and 5.21 of the EHRC Code: “5.20 Employers can often prevent unfavourable treatment which would amount to discrimination arising from disability by taking prompt action to identify and implement reasonable adjustments (see Chapter 6). 5.21 If an employer has failed to make a reasonable adjustment which would have prevented or minimised the unfavourable treatment, it will be very difficult for them to show that the treatment was objectively justified. …" Objective Justification/Legitimate aim/Proportionality

4.11 The test for objective justification is unlike the band of reasonable responses test - Hardy & Hansons plc v Lax

[2005] EWCA Civ 846

[2005] IRLR 726

4.12 The EHRC code provides: §4.28 “The concept of ‘legitimate aim’ is taken from European Union (EU) law and relevant decisions of the Court of Justice of the European Union (CJEU) – formerly the European Court of Justice (ECJ). However, it is not defined by the Act. The aim of the provision, criterion or practice should be legal, should not be discriminatory in itself, and must represent a real, objective consideration. The health, welfare and safety of individuals may qualify as legitimate aims provided that risks are clearly specified and supported by evidence.” §4.29 “Although not defined by the Act, the term ‘proportionate’ is taken from EU Directives and its meaning has been clarified by decisions of the CJEU (formerly the ECJ). EU law views treatment as proportionate if it is an ‘appropriate and necessary’ means of achieving a legitimate aim. But ‘necessary’ does not mean that the provision, criterion or practice is the only possible way of achieving the legitimate aim; it is sufficient that the same aim could not be achieved by less discriminatory means.” §4.30 “Even if the aim is a legitimate one, the means of achieving it must be proportionate. Deciding whether the means used to achieve the legitimate aim are proportionate involves a balancing exercise. An employment tribunal may wish to conduct a proper evaluation of the discriminatory effect of the provision, criterion or practice as against the employer’s reasons for applying it, taking into account all the relevant facts’

4.13 Whilst the burden is on the Respondent to adduce evidence in respect of the legitimate aim it advances, that is subject to this caveat: “It is an error to think that concrete evidence is always necessary to establish justification… Justification may be established in an appropriate case by reasoned and rational judgement. What is impermissible is a justification based simply on subjective impression or stereotyped assumptions.” Per Chief Constable of West Yorkshire Police and anor v Homer

[2009] ICR 223

, EAT

4.14 Hampson v Department of Education and Science

[1989] ICR 179

identifies 3 elements that a Respondent must establish, namely: i. the policy alleged to be discriminatory corresponds to a real need on the part of the employer; ii. that the policy is appropriate with a view to achieving the employer’s objective; and iii. that the policy is ‘necessary’ for this purpose.

4.15 The Respondent who successfully negotiates the “Hampson” test must also objectively justify the legitimate aim and show that the reasons for its imposition are sufficient to overcome any indirectly discriminatory impact. Is the PCP a proportionate means of achieving a legitimate aim?

4.16 In MacCulloch v ICI

[2008] IRLR 846

,the EAT set out the position as follows: ''(1) The burden of proof is on the respondent to establish justification: see Starmer v British Airways

[2005] IRLR 862

at [31]. (2) The classic test was set out in Bilka-Kaufhaus GmbH v Weber Von Hartz (case 170/84)

[1984] IRLR 317

in the context of indirect sex discrimination. The ECJ said that the court or tribunal must be satisfied that the measures must “correspond to a real need … are appropriate with a view to achieving the objectives pursued and are necessary to that end” (paragraph 36). This involves the application of the proportionality principle, which is the language used in reg. 3 itself. It has subsequently been emphasised that the reference to “necessary” means “reasonably necessary”: see Rainey v Greater Glasgow Health Board (HL)

[1987] IRLR 26

per Lord Keith of Kinkel at pp.30–31 (3) The principle of proportionality requires an objective balance to be struck between the discriminatory effect of the measure and the needs of the undertaking. The more serious the disparate adverse impact, the more cogent must be the justification for it: Hardys & Hansons plc v Lax

[2005] IRLR 726

per Pill LJ at paragraphs [19]–[34], Thomas LJ at [54]–[55] and Gage LJ at [60]. (4) It is for the employment tribunal to weigh the reasonable needs of the undertaking against the discriminatory effect of the employer's measure and to make its own assessment of whether the former outweigh the latter. There is no “range of reasonable response” test in this context: Hardys & Hansons plc v Lax

[2005] IRLR 726

, CA.'' Burden of proof

4.17 The Tribunal considered S 136 EqA and the correct approach to the burden of proof as set out in Igen V Wong

[2005] IRLR 258

4.18 With regard to the timeless question of the “reason why”. Underhill J. (as he then was) said this in A Gay v Sophos plc

UKEAT/0452/10/LA

: 27 “It is now very well-established that a tribunal is not obliged to follow the two-stage approach: see Laing v Manchester City Council

[2007] ICR 1519

, at paras. 71-77 (pp. 1532–3) (approved in Madarassy ). If it makes a positive finding that the acts complained of were motivated by other considerations to the exclusion of the proscribed factor, that necessarily means that the burden of proof, even if it had transferred, has been discharged.”

4.19 The then President of the EAT, Simler J. opined in Pnaiser v. NHS England and another

[2016] IRLR 170

: 38 “Although it can be helpful in some cases for tribunals to go through the two stages suggested in Igen v Wong, as the authorities demonstrate, it is not necessarily an error of law not to do so, and in many cases, moving straight to the second stage is sensible"

4.20 Following the guidance given by the EAT in Barton v. Investec Henderson Crossthwaite Securities Ltd

[2003] IRLR 352

, as developed and refined by the Court of Appeal in Igen Ltd v. Wong and others

[2005] IRLR 258

& Madarassy v. Nomura International plc

[2007] IRLR 246

, the burden of proof in a discrimination claim falls into two parts. Stage One

4.21 Firstly, it is for C to prove on the balance of probabilities facts from which a reasonable tribunal could properly conclude, on the assumption that there is no adequate explanation, that R has committed an act of discrimination which is unlawful. (The outcome of the analysis by the tribunal at this stage will usually depend on what inferences it is proper to draw from the primary facts found by the Tribunal.)

4.22 In Royal Mail Group v Efobi

[2021] ICR 1263

, the Supreme Court confirmed that a claimant is still required to prove, on the balance of probabilities, facts from which, in the absence of any other explanation, the Employment Tribunal could infer an act of unlawful discrimination.

4.23 If C does not prove such facts, he/she must fail. Stage Two

4.24 Secondly, where C has proved facts from which it could be inferred that R has treated C less favourably on proscribed grounds, then the burden of proof moves to R.

4.25 It is then for R to prove that it did not commit or, as the case may be, is not to be treated as having committed that act.

4.26 To discharge that burden it is necessary for the R to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the proscribed grounds of which complaint is made.

4.27 That requires a Tribunal to assess not merely whether R has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that the proscribed ground was not any part of the reasons for the treatment in question. If R can do this, the claim fails.

4.28 Since the facts necessary to prove an explanation would normally be in the possession of R, a tribunal would normally expect cogent evidence to discharge that burden of proof.

4.29 If the burden is not discharged, the Tribunal is bound to find that discrimination has taken place.

4.30 As observed by Langstaff J. (EAT President, as he then was) when considering whether “stage one” has been satisfied by a claimant in a discrimination claim: “It has been so well-established as to be trite that the bare facts of a different status and a difference in treatment are insufficient to achieve this; they only indicate a possibility of discrimination”. – Millin v. Capsticks Solicitors LLP - UKEAT-0093/14 and

UKEAT/0094/14

. 4.30 The Tribunal may draw inferences from the fact that there are inconsistencies in the employer’s explanation: “the substance of the explanation should be excluded from consideration when deciding whether the burden of proof should be reversed, but the fact that explanations had been given which were inconsistent could be taken into account” - Veolia Environmental Services UK v Gumbs - EAT 0487/12.

4.31 Unreasonable or unfair conduct is not, by itself, enough to raise an inference of discrimination to shift the burden of proof. If unreasonable conduct occurs alongside other indications that there might be discrimination on racial grounds, that would alter the position, but those indications must relate to the prohibited ground - Commissioner of Police of the Metropolis and anor v Osinaike - EAT 0373/09. VICTIMISATION

4.32 Section 27 of the EqA 2010 provides: “27 Victimisation (1) A person (A) victimises another person (B) if A subjects B to a detriment because– (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act. (2) Each of the following is a protected act– (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other things for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act. (3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith. (4) This section applies only where the person subjected to a detriment is an individual. (5) The reference to contravening this Act includes a reference to committing a breach of an equality clause or rule.”

4.33 Martin v Devonshires Solicitors

UKEAT/86/10

at [22] set out the three elements to a claim for victimisation:

• The protected act: B must perform a protected act, or A must believe that B has or may perform a protected act.

• Detriment: A must subject B to a detriment.

• Causation: A’s reason to subject B to detriment must be wholly or substantially because B performed a protected act, or A believed B did or may perform a protected act.

4.34 There is no need for a comparator in a victimisation claim. The Tribunal has to consider: a) the protected act being relied on; b) the detriment suffered; c) the reason for the detriment; d) any defence; and e) the burden of proof. See Chief Constable of the West Yorkshire Police v Khan

[2001] IRLR 830

4.35 On the facts of this case, we derived considerable assistance from the judgement of Langstaff (P) in A v Chief Constable of West Midlands Police UKEAT0313/14: “21. The context is this. The right to complain of victimisation is designed to protect those who genuinely make complaints. They may not be made in bad faith. The act has to relate to a protected characteristic once such an act is done. The effect of the section is, as it were, to place complainants in a protective bubble. They may not be penalised. The response of the person to whom the complaint is made may not be such as to treat the person adversely. Though the wording of section 27 suggests that “subjecting to a detriment” may be by positive act, Miss Banton submits, and I accept, that it may also arise by an omission to act. But omissions to act must be carefully scrutinised in this regard. The purpose of the victimisation provision is protective. It is not intended to confer a privilege upon the person within the hypothetical bubble I have postulated, for instance by enabling them to require a particular outcome of a grievance or, where there has been a complaint, a particular speed with which that particular complaint will be resolved. It cannot in itself create a duty to act nor an expectation of action where that does not otherwise exist. 22. It follows that in some cases — and I emphasise that the context will be highly significant — a failure to investigate a complaint will not of itself amount to victimisation. Indeed there is a central problem with any careful analysis and application of section 27 to facts broadly such as the present. That is that, where the protected act is a complaint, to suggest that the detriment is not to apply a complaints procedure properly because a complaint has been made, it might be thought, asks a lot and is highly unlikely. The complaints procedure itself is plainly embarked on because there has been a complaint: to then argue that where it has not been embarked on with sufficient care, enthusiasm or speed those defects are also because of the complaint itself would require the more careful of evidential bases.”

[5]CONCLUSIONS S.15 EQA Did the Respondent have actual or constructive knowledge of disability?5.1 The material date for knowledge on the part of the Respondent is 24 January 2022. In this case, the Clamant has sought to interpret the email from the Respondent’s solicitors to the Tribunal dated 16 September 2022 as establishing actual knowledge of disability on the part of the employer on the dates contained therein. Namely anxiety from 8 January 2021 and depression from March 2021 – see paragraph 1.4 above.

5.2 We disagree that that is the correct interpretation, and it is inconsistent with the evidence from the Respondent’s witnesses, which we accept. The email concedes only knowledge of the condition or impairment as from those dates. That is but one of the three elements needed to establish actual knowledge of disability. The Respondent denied actual knowledge and there was no, or no persuasive evidence, to the contrary.

5.3 We go on to consider whether the Respondent should be fixed with constructive knowledge of disability. It is not enough for an employer to show that they did not know that the disabled person had the disability. They must also show that they could not reasonably have been expected to know about it. Reasonableness, for the purposes of s 15(2), must entail a balance between the strictures of making enquiries, the likelihood of such enquiries yielding results and the dignity and privacy of the employee.

5.4 We conclude that the Respondent did not have constructive knowledge of the Claimant’s disability. The consistent reason advanced for the Claimant’s work absences was “family stress”. The 1st OH report, partly reproduced above, specifically opined that “…, the long term prognosis for stress is good because a full recovery is expected and once Alison's personal issues have been resolved, then there is no indication that future symptoms and associated absences are likely to re-occur.”

5.5 We note that it was the Claimant’s evidence that by the time of the PIP being implemented, her episodic home stresses had gone - see e.g. crossexamination on day 2.

5.6 The Clamant regularly declined offers of additional support, which included an OH referral, according to the evidence of SR which we have accepted. Whilst the grievance procedure determined that an OH referral should have been sought prior to the implementation of the PIP, that is different to the question of whether OH input should have been sought on the issue of disability at that or an earlier stage. We do not consider SR’s interactions and investigations fall on the wrong side of reasonableness on this issue so as conclude that the Respondent should have known that the Clamant was disabled. Unfavourable treatment

5.7 That would be enough to determine that the S.15 Claim fails. However, if we are wrong to so conclude, we go on to consider the question of whether the Clamant was subjected to unfavourable treatment by placing her on an informal PIP in all the surrounding circumstances.

5.8 There is no statutory definition of "unfavourable treatment. However, we were assisted by the guidance in the Supreme Court in Williams v Trustees of Swansea University Pension and Assurance Scheme and another

[2018] UKSC 65

as well as the EHRC code at § 5.7 and § 4.9 on the analogous if not identical concept of “detriment”.

5.9 The threshold for unfavourable treatment is relatively low. However , as we were reminded in the Clamant ’s written submissions: “a detriment exists if a reasonable person would or might take the view that the employer's conduct had in all the circumstances been to her detriment; but an unjustified sense of grievance cannot amount to a detriment: see Derbyshire v St Helens MBC

[2007] UKHL 16

;

[2007] ICR 841

, para. 37 per Baroness Hale reciting earlier authorities.”

5.10 We accept the Respondent’s evidence as exemplified in the passage above cited from SC’s w/s that the informal PIP was a supportive and not punitive measure intended to support improvements in performance where necessary. Moreover, the particular circumstances here were that the implementation of the PIP was against the following background:

• Informal not formal stage applied

• Increased period of PIP to 4 months

• Delayed implementation till after Xmas 2021

• The lengthy background steps previously taken by the Respondent.

5.11 Having regard to the Williams guidance, we do not find that the implementation of the informal PIP constituted unfavourable treatment and, for this separate reason, the S.15 claim fails.

5.12 Even if we had determined that the impugned treatment of the Clamant was unfavourable, we would still need to consider:

• whether the Claimant’s inability able to perform all of her work-related tasks at the required performance level was “something arising” from her disability;

• whether that was the reason for the unfavourable treatment;

• Whether the unfavourable treatment was a proportionate means of achieving a legitimate aim – Justification.

5.13 The Tribunal does not need to determine those issues in light of our findings above. However, in deference to the careful arguments advanced by the parties, we set out our conclusion on the issue of justification had the claim otherwise succeeded. JUSTIFICATION

5.14 The Claimant concedes that the Respondent’s stated aims are legitimate. Those aims were:

[1]The PIP was implemented as an aid to improve the Claimant’s performance in her role; and

[2]To identify the support required. The Claimant denies that the PIP was a proportionate means of achieving either or both aims. 5.15 We conclude that the Performance Management Policy and the management of employee performance via the informal PIP route to correspond to a real need on the part of the Respondent. This has regard to the facts that the Respondent delivers consultancy services to the NHS, social care, local authorities, as well as other clients in justice and education [SC §3] and is not publicly funded. The service was formed in 2015 and has to compete with other agencies in the field for business. 5.16 We further conclude that it is appropriate with a view to achieving either or both of the legitimate aims. 5.17 The policy as implemented in the Claimant’s case was no more than necessary to achieving either or both of the legitimate aims. We note in particular:• SR could have chosen to implement a formal PIP, but she chose to implement an informal PIP.

• SR could have chosen to implement the informal PIP for a shorter period but she chose to extend it to four months, to give the Claimant more time to improve.

• SR could have implemented the informal PIP in December 2021 but chose not to so as to avoid disturbing the Claimant over the Christmas period. 5.18 We are not persuaded by the argument that the support plan option introduced after the grievance demonstrates that the informal PIP was not necessary at the material time. As SC explained in his evidence, the support plan was an informal PIP by any other name and the underlying performance issues still remained to be addressed as they did with the PIP. Failure to achieve success on the support plan could lead to more formal action on performance issues just the same. The support plan was a bespoke solution to address, amongst other things, the Claimant’s concerns around the language on the PIP Template, namely "If the expected outcomes are not achieved/improvements attained more formal action may be initiated under the relevant procedure". However, that did not alter the practical reality of what the support plan sought to achieve or the potential long-term consequences for the Claimant if not successful on the support plan. 5.19 We would have found accordingly that the Respondent had justified the application of the Performance Management Policy and the implementation of the informal PIP. VICTIMISATION 5.20 We accept the Respondent’s analysis at §137 of its closing submission based on the EAT authority of A v Chief Constable of West Midlands Police UKEAT0313/14: 137. If the claimant alleges that the detriment is the failure to uphold or investigate her complaint because she has made the complaint, there will be a real difficulty in getting the claim off the ground. A failure to investigate a complaint sufficiently or promptly, because the complaint has been made, will not generally amount to a detriment, absent “the more careful of evidential bases” 5.21 The protected acts here are the grievance and the grievance appeal, albeit that the latter was not formally pleaded as such. 5.22 The detriment alleged is failing to uphold the grievance and the grievance appeal. 5.23 Aside from the fact that both outcomes did uphold parts of the Claimant’s underlying complaints, the Tribunal cannot identify any or any persuasive evidential basis for even satisfying limb 1 of the Igen Test in respect of either claim. 5.24 In respect of the grievance, we reject the submission that RH gave inconsistent explanations for her grievance outcome decision before the Tribunal and at the Appeal meeting as establishing the “something more” as in Veolia Environmental Services UK v Gumbs

UKEAT/0487/12/BA

). The fact that RH pointed to the lack of knowledge of the disability at the material time in the appeal meeting is not mutually inconsistent with her stance on not considering herself qualified to make a legal determination on disability discrimination. Even if it was established that RH’s approach was unreasonable, and we do not conclude that it was, unreasonableness does not equate to discrimination (see Bahl v Law Society [2004]IRLR 799 cited in the Claimant’s submissions) although such conduct might form part of a prima facie case. 5.25 The “careful evidential basis” required by the West Midlands Police case (op cit) is not made out on the evidence before us. The burden doesn’t shift and, in any event, the reason why RH concluded as she did was because it was her independent conclusion on the substance of the complaints unconnected to the protected act and not because of the fact that she had brought the grievance. A matter which we note was acknowledged by the Claimant towards the end of her cross-examination. 5.26 Likewise in respect of the grievance appeal, the following exchange took place in the Claimant’s cross- examination: Q. SC upheld appeal in that he agreed you should have been assessed by OH first ? A. Yes Q. And he also picked up on your reference to injury to feelings + he apologises A. Yes Q. But SC did not find that the PIP was unlawful discrimination and he reached an independent conclusion ? A.Yes Q. Not because you had made a further complaint by the appeal? A. Yes I agree, however again my disabilities and impact were not assessed in coming to his conclusions 5.27 In The Tribunal’s own assessment, regardless of the cross examination referred to, the evidence before us in respect of the appeal certainly does not amount to evidence from which the Tribunal could decide, in the absence of any other explanation, that the Respondent contravened the provision concerned. Moreover, the “careful evidential basis” required by the West Midlands Police case (op cit) is not made out on the evidence before us. The burden does not shift and the reason why SC concluded as he did on the appeal was because it was his independent conclusion on the substance of the appeal unconnected to the protected act and not because of the fact that C had brought the grievance. 5.28 Accordingly, the claims fail and are dismissed. Jacques Algazy K.C. 15 September 2024