Employment Judge Meichen, Mr P Wilkinson, Mr N HowardIn person for claimantMs S Garner (instructed by barrister) for respondentDate 18 March 2024
REASONS
[1]We will mention a couple of points by way of introduction.[2]The first point is that the claimant is a disabled person who could find various aspects of the tribunal process challenging. The claimant is disabled (and was at the material time for the purpose of this claim) by the mental health impairments of autism, PTSD, and anxiety / depression. At an earlier hearing an intermediary was appointed to support the claimant throughout this final hearing. The intermediary service produced a detailed and helpful report providing advice and recommendations as to how the claimant could be supported to fully engage in the process.[3]We read the intermediary report in advance of this hearing. At the start of the hearing, we conducted a ground rules hearing and various adjustments wee agreed to enable the claimant to fully participate in the hearing. We implemented the adjustments that had been recommended by the intermediary consent. The intermediary supported the claimant throughout the hearing as intended. We consider that a fair hearing was achieved. Neither party suggested there was any unfairness and the hearing proceeded relatively smoothly.[4]Ms. Garner asked us in closing submissions to bear in mind that she had not cross examined the claimant as thoroughly as she might have done had she not been so conscious of how difficult the claimant was likely to find the process. We have borne that in mind as requested. We would say however that in our view the cross examination of the claimant was more than adequate. The essential parts of the respondent’s case were put effectively, and we do not think the respondent has been disadvantaged in any way by the cross examination.[5]The second point to mention is that there were originally two respondents to this claim. As will be seen the claim is about a job application the claimant made to the respondent, which resulted in a conditional job offer which was ultimately withdrawn. At the time the claimant made the job application to the respondent she was employed by Sandwell Metropolitan Borough Council (“Sandwell”). Sandwell became involved because the respondent approached them for a reference. Shortly after the reference was provided the claimant’s job offer was withdrawn. Sandwell were originally the second respondent to the claim. However, the claimant withdrew her claim against Sandwell and so we have not heard any evidence from them, and they did not play any part in this final hearing.
Issues
[6]The issues in this claim were definitively set out by EJ Camp at the case management hearing on 16 May 2023. Stripping out the allegations against Sandwell, which are no longer relevant, the liability issues for us to determine are as follows (we have maintained the numbering from the original list of issues):[13]Direct disability discrimination (Equality Act 2010 section 13)13.1 It is agreed that the First Respondent withdrew its conditional offer of 14 May 2021.13.2 In addition to the withdrawal of the conditional offer of employment, the claimant relies upon the following treatment:(a) Failing to speak to health professionals(b) Failing to believe that employees get bullied(c) Failing to speak with Gail Powell, social worker(d) Failing to speak to Dr. Thompson the psychiatrist(e) Failing to remain impartial by not accepting two former employer and one Reverend reference and accepting the most current employer's reference(f) Failing to consider why the claimant would receive an incremental pay increase(g) Failing to consider the claimant's character during the interview process(h) Failing to take into account bullying allegations made against her former employer. 13.2A Was that less favourable treatment? The Tribunal will decide whether the claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the claimant's. 13.3. The Claimant will rely on a hypothetical comparator and say that the first respondent formed stereotypical views of her capabilities based on her disclosed disabilities following her initial disclosure and/or her raising the fact she had a social worker on 20 May 2021 and psychiatrist via an email on 18 June 2021. 13.4 If so, was it because of disability?[14]Discrimination arising from disability (Equality Act 2010 section 15)14.1 Did the first respondent treat the claimant unfavourably by: 14.1.1 Withdrawing the conditional offer of employment.14.2 Did the following things arise in consequence of the claimant's disability?(a) Claimant's panic attack during her conversation with Lynda Eyton on 20 May 2021 when the subject of her current employer was raised, at which she raised the issue of suicide and Caroline Flack;(b) The 135 days' absences in her last 2 years with the second respondent to which Lee Bentley referred at page 2 of the second respondent's reference;(c) Claimant's "demotivation" (sic) and the "problems and issues within the work setting and with staff relationship" to which Lee Bentley referred in his telephone call with Lynda Eyton on 29 June 2021.14.3 Was the unfavourable treatment because of any of those things?14.4 Was the treatment a proportionate means of achieving a legitimate aim? The respondent says that its aims were: The respondent's concern that anyone undertaking the role claimant applied for was not capable of working in isolation - which was a crucial part of the job - the nature of the job, dealing with high-ranking staff, there was a need to produce documentation. The role applied for was a monitoring role predominantly working in isolation undertaking various tasks including conducting investigations, research, collecting and collating statistics and writing reports. There would be little interaction with other colleagues and virtually none with members of the public so felt that the aim was to produce documents and, based on the reference provided and the discussion with Sandwell HR, the role the claimant had applied for was not one in which she could undertake the role to the satisfaction of the first respondent.14.5 The Tribunal will decide in particular:14.5.1 was the treatment an appropriate and reasonably necessary way to achieve those aims?14.5.2 could something less discriminatory have been done instead?14.5.3 how should the needs of the claimant and the first respondent be balanced?[15]Victimisation (Equality Act 2010 section 27) 15.1 Did the claimant do a protected act, as follows:(a) On 13 December 2020, Claimant complained to David Stevens, the second respondent 's CEO of "discriminatory conduct";(b) On 8 March 2021, Claimant complained to the second respondent's Surjit Tour of discriminatory treatment. The Claimant also will say that in the alternative, following the conversations with Claimant and Lee Bentley, of the second respondent, the first respondent formed the view that Claimant had or may do a protected act per 27 (1)(b) Equality Act 2010. 16.2 Did the first respondent do the following things: 16.2.1 Withdraw the offer of conditional employment. 16.3 By doing so, did it subject the claimant to detriment? 16.4 If so, was it because the claimant did a protected act? 16.5 Was it because the first respondent believed the claimant had done, or might do, a protected act? Law Direct discrimination 7. Section 13 Equality Act 2010 (“EqA”) provides that: “a person (A) discriminates against another (B) if because of a protected characteristic A treats B less favourably than A treats or would treat others”. Section 23 EqA provides that on a comparison of cases for the purposes of section 13, there must be no material difference between the circumstances relating to each case. 8. It is clear from the wording of s. 13 EqA that the statutory comparator must not share the claimant’s protected characteristic. So the comparator in the context of a direct disability discrimination claim cannot be disabled him or herself. This was made clear by Lord Scott in Shamoon v Chief Constable of the Royal Ulster Constabulary 2003 ICR 337, HL, when he observed: ‘[T]he comparator required for the purpose of the statutory definition of discrimination must be a comparator in the same position in all material respects as the victim save only that he, or she, is not a member of the protected class’. 9. In Nagarajan v London Regional Transport [1999] IRLR 572, the House of Lords held that if the protected characteristic had a ‘significant influence’ on the outcome, discrimination would be made out. The crucial question in every case is, ‘why the complainant received less favourable treatment…Was it on the grounds of [the protected characteristic]? Or was it for some other reason..?’. 10. In Shamoon Lord Nicholls said ‘… employment Tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the Claimant was treated as she was. Was it on the proscribed ground which is the foundation of the application? That will call for an examination of all the facts of the case. Or was it for some other reason? If the latter, the application fails. If the former, there will be usually be no difficulty in deciding whether the treatment, afforded to the Claimant on the proscribed ground, was less favourable than was or would have been afforded to others. The most convenient and appropriate way to tackle the issues arising on any discrimination application must always depend upon the nature of the issues and all the circumstances of the case. There will be cases where it is convenient to decide the less favourable treatment issue first. But, for the reason set out above, when formulating their decisions employment Tribunals may find it helpful to consider whether they should postpone determining the less favourable treatment issue until after they have decided why the treatment was afforded to the Claimant …’. 11. As was confirmed in Martin v Devonshire’s Solicitors [2011] ICR 352 since Shamoon, the recommended approach from the higher courts has generally been to address both stages of the statutory test by considering the single ‘reason why’ question: was the treatment on the proscribed ground, or was it for some other reason? Considering the hypothetical or actual treatment of comparators may be of evidential value in that exercise. Discrimination arising from disability 12. Section 15 EqA states as follows: (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 13. The unfavourable treatment must be shown by the claimant to be "because of something arising in consequence of [her] disability". The tribunal must therefore ask what the reason for the alleged treatment was. If this is not obvious then the tribunal must enquire about mental processes - conscious or subconscious - of the alleged discriminator see R (on the application of El v Governing Body of JFS and The Admissions Appeal Panel of JFS and Ors [2010] IRLR, 136, SC). 14. In Pnaiser v NHS England [2016] IRLR 170 the EAT set out the following guidance:a. A tribunal must first identify whether there was unfavourable treatment and by whom.b. The tribunal must determine the reason for or cause of the impugned treatment. This will require an examination of the conscious or unconscious thought processes of the putative discriminator. 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 amount to an effective reason for or because of it. Motive is irrelevant.c. The focus of this part of the enquiry is on the reason for or cause of the impugned treatment.d. The tribunal must determine whether the reason or cause is something arising in consequence of the claimant’s disability. The causal link between the something that causes the unfavourable treatment, and the disability may include more than one link. The more links in the chain the harder it is likely to be to establish the requisite connection as a matter of fact. This stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator. 15. The ‘because of' enquiry therefore involves two stages: firstly, A's explanation for the treatment (and conscious or unconscious reasons for it) and secondly, whether (as a matter of fact rather than belief) the "something" was a consequence of the disability. It does not matter precisely in which order these questions are addressed.
Law
[16]The employer will escape liability if it is able to objectively justify the unfavourable treatment that has been found to arise in consequence of the disability. The aim pursued by the employer must be legal, it should not be discriminatory in itself and it must represent a real, and objective consideration. As to proportionality, the EHRC Code on Employment notes that the measure adopted by the employer does not have to be the only way of achieving the aim being relied on, but the treatment will not be proportionate if less discriminatory measures could have been taken to achieve the same objective (4.31). Victimisation[17]Section 27 EqA states as follows:(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act[18]In terms of causation the protected act must be more than simply causative of the treatment (in the "but for" sense). It must be a real reason: ”the real reason, the core reason, for the treatment must be identified” (Woods v Pasab Ltd (t/a Jones Pharmacy) [2012] EWCA Civ 1578). Where there is more than one motive in play, all that is needed is that the discriminatory reason should be of sufficient weight (O'Donoghue v Redcar and Cleveland Borough Council [2001] IRLR 615). The burden of proof[19]Section 136 EqA sets out the burden of proof provisions which apply to claims under the EqA. Section 136(2) states: “if there are facts from which the court could decide in the absence of any other explanation that a person (A) contravened the provision concerned the court must hold that the contravention occurred”. Section 136(3) then states: “but subsection (2) does not apply if A shows that A did not contravene the provision”.[20]These provisions enable the employment tribunal to go through a two-stage process in respect of the evidence. The first stage requires the claimant to prove facts from which the tribunal could conclude in the absence of any other explanation that the respondent has committed an unlawful act of discrimination. This is known as the prima facie case.[21]The second stage, which only comes into effect if the claimant has proved those facts, requires the respondent to prove that he did not commit the unlawful act. That approach has been settled since the case of Igen Ltd v Wong [2005] IRLR 258 and it was reaffirmed in Efobi v Royal Mail Group Limited [2019] IRLR 352[22]The Supreme Court has emphasised that it is for the Claimant to prove the prima facie case. In Hewage v Grampian Health Board [2012] IRLR 87 Lord Hope summarised the first stage as follows: "The complainant must prove facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the complainant which is unlawful. So the prima facie case must be proved, and it is for the claimant to discharge that burden”. The claimant must prove facts from which it could be decided not simply that discrimination is a possibility but that it has in fact occurred (see South Wales Police Authority v Johnson [2014] EWCA Civ 73 at paragraph 23).[23]Before the burden can shift there must be something to suggest that the treatment was discriminatory (see B and C v A [2010] IRLR 400). Mere proof that an employer has behaved unreasonably or unfairly would not by itself trigger the transfer of the burden of proof, let alone prove discrimination (see in particular Bahl v The Law Society and others [2004] IRLR 799). Therefore inadequately explained unreasonable conduct and/or a difference in treatment and a difference in status and/or incompetence is not sufficient to infer unlawful discrimination (Quereshi v London Borough of Newham [1991] IRLR 264; Glasgow City Council v Zafar [1998] ICR 120 HL; Igen, Madarassy).[24]It is well established that the burden of proof does not shift to the employer simply on the claimant establishing a difference in status and a difference in treatment. Those facts only indicate the possibility of discrimination. They are not, without something more, sufficient material from which the tribunal could conclude that the respondent had committed an unlawful act of discrimination. This principle is most clearly expressed in the case of Madarassy v Nomura International plc 2007 [IRLR] 246.[25]The issue of what the ‘something more’ is and whether the burden shifts is not subject to hard and fast rules and the answer will vary depending on the nature of the case and the evidence given before the Tribunal. We consider that the following principles are particularly relevant to our determination of the issue in this particular case:a. It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of discrimination. The outcome at this stage of the analysis will usually depend on what inferences it is proper to draw from the primary facts found by the tribunal (see paragraph 4 of Appendix to Judgment of Court of Appeal in Igen v Wong). In some cases, the discrimination will not be a clear intention but merely based on the assumption that “he or she would not have fitted in” (see paragraph 3 of the Appendix to Judgment of Court of Appeal in Igen v Wong).b. It is important to note the word “could” in s 136(2). At this stage the tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them (see paragraph 5 of Appendix to Judgment of Court of Appeal in Igen v Wong).c. The Court of Appeal in Brown v LB Croydon [2007] EWCA Civ 32 in referring to the judgment of the EAT below in that case, quoted the following comments by Elias J as he then was with approval: 25. In other circumstances, where there is no actual comparator, the employee must rely on a hypothetical comparator. Again in some cases it may be relatively plain to a tribunal that the burden switches to the employer. That is likely to occur for example where the employer acts in a way which would be quite atypical for employers. Conversely if the employer acts in a way which would appear perfectly sensible, and does the kind of thing which most employers would do, then the burden is unlikely to transfer. For example if an employer warns an employee for drunkenness at work, and it is not disputed that the employee was drunk, it is not likely in those circumstances in the absence of particular evidence demonstrating otherwise that that would create an inference of less favourable treatment so as to require some explanation for the employer.d. In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts (see paragraph 6 of Appendix to Judgment of Court of Appeal in Igen v Wong). However, the Employment Tribunal is entitled to take into account the fact it disbelieves the employer's explanation (even though the employer's case is primarily relevant at the second stage): Birmingham City Council v Millwood [2012] EqLR 910, EAT. The tribunal may also draw inferences from the fact that there are inconsistencies in the employer’s explanation: Veolia Environmental Services UK v Gumbs [2014] EqLR 364, EAT.e. In Denman v Commission for Equality and Human Rights and ors 2010 EWCA Civ 1279, CA, Lord Justice Sedley made the point that ‘the “more” which is needed to create a claim requiring an answer need not be a great deal. In some instances it will be furnished by non-response, or an evasive or untruthful answer, to a statutory questionnaire. In other instances it may be furnished by the context in which the act has allegedly occurred. The Court of Appeal approved such an approach in Base Childrenswear Ltd v Otshudi 2020 IRLR 118, CA. It was open to the tribunal to take into account when drawing inferences a false explanation given for the treatment complained of and the fact that the explanation given had changed, even though it had been argued that this had been done so as to spare the employee's feelings. Lord Justice Underhill observed: ‘Giving a wholly untruthful response when discrimination is alleged is well-recognised as the type of conduct that may indicate that the allegation is well-founded.’f. An employer’s failure to call evidence from key witnesses may result in adverse inferences being drawn In Efobi v Royal Mail Group Ltd 2021 ICR 1263 the Supreme Court held that tribunals should be free to draw, or decline to draw, inferences in the case before them using common sense. Whether any significance should be attached to the fact that a person had not given evidence depended entirely on the context and particular circumstances. Relevant considerations would include whether the witness was available to give evidence, what evidence the witness could have given, what other evidence there was bearing on the points on which the witness could have given evidence, and the significance of those points in the context of the case as whole.[26]If the burden of proof shifts the last three paragraphs of the Appendix in Igen v Wong should be considered. They state: To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since “no discrimination whatsoever” is compatible with the Burden of Proof Directive. That requires a tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge that burden of proof on the balance of probabilities that sex was not a ground for the treatment in question. Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the tribunal will need to examine carefully the explanations for failure to deal with questionnaire procedure and/or code of practice.[27]If the burden of proof shifts the need for the respondent to set out ‘cogent evidence’ explaining a non-discriminatory reason for its conduct is particularly relevant. In Bennett v Mitac Europe Ltd 2022 IRLR 25 the EAT observed that the requirement for ‘cogent evidence’ does not apply a standard of proof beyond that of the balance of probabilities. Nonetheless, it is the respondent that generally is in a position to provide evidence about the reason for the claimant’s treatment. Much is likely to turn on the evidence of the decision maker. If the respondent chooses not to call the relevant decision maker, it puts itself at considerable risk of an adverse finding should there be sufficient evidence to shift the burden of proof, because it will face substantial difficulty in discharging the burden.[28]However, the fact that a decision maker is not called to give evidence does not necessarily mean that cogent evidence cannot be provided. There may be compelling documentary evidence and there may be a compelling reason why a decision maker was not called, for example a witness could be unwell or have died. But, a party could choose not to call a witness where it is likely that their evidence would be damaging. Much will depend on the particular context of the case. For example, in Bakkali v Greater Manchester Buses (South) Ltd t/a Stage Coach Manchester 2018 ICR 1481, EAT, an employer’s failure to call evidence from a key witness was found not to be fatal to its defence of a discrimination claim.
Findings
[29]The respondent advertised a job vacancy for the position of Housing Strategy and Development Support Officer (“Support Officer”).[30]The claimant applied for the Support Officer role on or around 17 April 2021. On her application form the claimant disclosed that she had a disability. The claimant was not asked for, and did not provide, any details as to what the disability was. The claimant said that she did not have any special requirements for the interview or selection process.[31]The respondent was therefore on notice from the start of the claimant’s application that she was a disabled person, and therefore that she may require reasonable adjustments.[32]In the application form the respondent made a point of mentioning that they consider themselves to be committed to the employment and career development of disabled people.[33]The claimant was shortlisted for interview, and she was interviewed by a recruitment panel comprising of three people - Lynda Eyton, Melissa Green and Anthony Walker.[34]The claimant’s interview took place on 13 May 2021. The claimant was asked a number of questions relevant to the role. The questions and answers were recorded and assessed by the panel.[35]The tribunal heard evidence from one of the interview panel members. This was Lynda Eyton. Lynda Eyton was the Client Relationship Manager in the housing department.[36]In her evidence to the tribunal Lynda Eyton asserted that the claimant had informed the panel at the beginning of the interview that she was awaiting the outcome of an assessment for autism. According to Lynda Eyton she responded by assuring the claimant that any reasonable adjustments she may need would be afforded to her by the council.[37]In her evidence the claimant was adamant that she had not mentioned her autism assessment at the interview. The claimant explained that she felt that doing so would be likely to jeopardise her chances of getting the job, and there was no need to do so given that she had not requested any reasonable adjustments at that juncture.[38]The tribunal prefers the claimant’s evidence. Lynda Eyton’s evidence was not supported by any of the respondent’s notes from the interview and we felt that such an important disclosure would be likely to have been recorded in the notes. We also considered that it would be unlikely for the claimant to disclose something so personal when there was no reason to do so. The claimant performed well at interview but was described by Lynda Eyton as appearing to be very nervous and we felt that if that were the case it would make it even more unlikely that the claimant would volunteer such personal information. Having got to know the claimant a little through the hearing we would say she is not the type of person to reveal personal information unless it was absolutely necessary to do so. Furthermore, we can see the logic in the claimant’s point that she would not want to say anything that might jeopardise her chances of getting the job and we agreed that there was no reason for the claimant to disclose her potential autism when she had made it clear that she did not require any adjustments for the interview process. Finally, we thought it was unlikely that the claimant would disclose that she was going for an autism assessment when she would not know what the results of that assessment may be. The claimant may not have been diagnosed with autism in which case there would be no need to mention it to the respondent at all. We felt that it would not make any sense for the claimant to mention her possible autism diagnosis in these circumstances.[39]We therefore do not accept the suggestion by the respondent that at the time the conditional job offer was made to the claimant they knew about the possibility that the claimant had autism. As we shall explain we find that the respondent only found out that the claimant had autism later on, and in fact it was shortly before the respondent withdrew the conditional job offer.[40]In summary, the duties of the Support Officer were to support the respondent’s housing strategy team and to work with stakeholders and residents to ensure that there was high quality housing to meet the respondent’s residents’ needs and demands.[41]The job advert for the Support Officer role emphasised that it involved working as an integral part of the team and the successful candidate would need to “have the confidence, credibility and interpersonal skills to work with a range of partners”. Similarly, the person specification for the role said that it was essential for the successful candidate to be a team player. The essential qualities required included good written and verbal communication skills and an “ability to communicate effectively with people at all levels” aswell as “negotiating skills”. Similarly it was essential that the successful candidate had “experience of working in partnership with professionals from other disciplines and external agencies and communities”. The job description said that the role involved working in partnership with tenants, residents groups and stakeholders. It referred to the need for the postholder to attend meetings and participate in staff development, appraisals and training.[42]In contrast, in her evidence to the tribunal Lynda Eyton said that the Support Officer role involved the successful candidate working predominantly on their own and in isolation. The tribunal does not accept that evidence. The evidence was not supported by any of the contemporaneous documentation produced around the time of the recruitment - the job advert, the job description, person specification and the interview questions. As we have referred to above those documents instead all emphasise the importance of the successful candidate being able to work successfully as part of a team and being able to communicate well with others. This is not consistent with the suggestion that the role predominantly involved working alone and/or in isolation. None of those documents said anything to indicate that the role would involve the successful candidate working on their own and/or in isolation. None of the interview questions were designed to assess whether candidates were well suited to working on their own and in isolation. The contemporaneous documents show that the Support Officer role involved activities which were not done while working alone or in isolation – negotiating, attending meetings and working in partnership with others for example.[43]During the hearing the tribunal members questioned the respondent’s witnesses about the nature of the role and the working circumstances to see if it really could be said that it involved working alone and/or in isolation. The answers demonstrated that the successful candidate would be expected to work in a busy local authority office and would regularly have interactions with other members of the team of which they were part. We did not see or hear any cogent evidence to support the suggestion that the Support Officer would be required to work predominantly on their own and in isolation. We found it to be a false suggestion and we were concerned about the respondent’s misleading evidence on this point.[44]In her witness statement at paragraph 43 Lynda Eyton repeated that the role would predominantly involve working on one’s own and she referred to the person specification as confirming that. However when we turned to the person specification during the hearing it did not mention that the role involved working on one’s own. It did state that the successful candidate should be able to manage their own workload without supervision, but that is not the same as working on one’s own and/or in isolation. This was a particular part of the respondent’s evidence which we found to be misleading.[45]Following the interviews the panel scored the candidates and then met to compare their scoring and discuss each candidate’s suitability. All members of the panel agreed that the claimant scored the highest and that she should be offered the position, subject to references and other checks being received. Plainly the panel viewed the claimant as a good fit for the role as they offered her the job.[46]On 14 May 2021 Lynda Eyton called the claimant to inform her of the job offer. We do not accept that the claimant informed Lynda Eyton of her pending autism assessment in this conversation either, for the same reasons we have already explained. A letter was sent to the claimant setting out the conditional job offer also dated 14 May. That made it clear that the offer was conditional; i.e. subject to receipt of satisfactory medical clearance and written references as well as documents confirming the essential qualifications required for the post and proof of right to work in the UK. The claimant quickly sent in proof of her right to work and qualifications.[47]The claimant asked if her pay could be matched to her current salary at Sandwell. This request was approved on 23 May 2021 by Jenny Lewington. Jenny Lewington was the Service Manager of Housing Strategy and Policy and she was Lynda Eyton’s manager. She had ultimate responsibility for the department in which the claimant was expecting to work as Support Officer.[48]On 20 May 2021 the claimant filled in a pre-employment health assessment form that she had been asked to complete. In that form the claimant said that she suffered from anxiety and depression, but it did not affect her ability to carry out her work. The claimant also said that she had experienced bullying at work previously which had impacted on her mental health. She said that she was currently taking an antidepressant and was awaiting a final autism diagnostic appointment. It is accepted on behalf of the respondent that as a result of receiving this form they had organisational knowledge of the claimant’s disabling conditions of anxiety and depression. The disclosure of these conditions along with the possible diagnosis of autism did not result in the respondent discussing any possible adjustments or support with the claimant.[49]The claimant provided details of referees. A request for references was sent out by the respondent’s HR department. Two references were received from Birmingham City Council. These related to work the claimant had undertaken between 2017 and 2019.[50]Lynda Eyton was concerned that neither of the two references were from the claimant’s current employer, Sandwell. She took advice from HR who advised her that the claimant should provide a reference from her current employer. On 20 May 2021 Lynda Eyton wrote to the claimant asking for a reference from Sandwell, or alternatively provide reasons why not. In response the claimant said she would be happy to discuss the matter and said she would give Lynda Eyton a call.[51]The claimant spoke to Lynda Eyton on 20 May 2021. The claimant told Lynda Eyton that she would rather not request a reference from Sandwell as she had had problems with them. She suggested instead that the respondent speak with her social worker. The claimant provided the name and contact details of her social worker who she said could explain the problems that she had had with Sandwell. The claimant revealed that she had a grievance against Sandwell.[52]In her statement for the tribunal Lynda Eyton said that she had understood that the claimant was talking about a grievance concerning safeguarding issues. This was incorrect and we do not know how Lynda Eyton apparently formed this impression. The claimant’s grievance against Sandwell concerned allegations of bullying and we think it is likely she communicated that to Lynda Eyton during the telephone call.[53]We find that during the call the claimant was nervous. The claimant obviously had issues with Sandwell, and she was concerned that her offer of employment with the respondent may be at risk as a result of them. We do not think that during the call the claimant was having a panic attack or referring to suicidal thoughts. Although the claimant was concerned there was no reason at this juncture for her to feel panic or despair - she was still on track to take up the offer of employment with the respondent. Had the claimant had a panic attack or expressed suicidal thoughts we think Lynda Eyton would have reported what had happened. We would also note that the claimant was made more confident by the fact that she understood that Lynda Eyton would speak to her social worker. This had the effect of putting the claimant at ease and makes it less likely that she had a panic attack or talked about suicide.[54]Following the conversation Lynda Eyton did not in fact attempt to speak to or contact the claimant’s social worker.[55]On 26 May 2021 the respondent’s Occupational Health Department (“OH”) provided medical clearance for the claimant as a new starter. This clearance was provided to the respondent’s HR department. We think it was likely to have been forwarded to the department the claimant was going to be working for, including Jenny Lewington. This is because it obviously contained information that would be relevant to the claimant’s prospective employment which her team should know about.[56]The clearance stated that the claimant had declared that she was waiting for her autism assessment. It said that the claimant was fit to work with support. A meeting was recommended to take place between management and the claimant to discuss any specific support that would be required such as “clear communication and instructions specifically with regard to the claimant’s duties”.[57]Despite the OH recommendation no meeting ever took place to discuss the support that the claimant might require.[58]We find that the respondent’s failure to take action in response to the OH advice that the claimant would need support and a meeting should be arranged to discuss that is at odds with the impression the respondent tried to create in their evidence, that they are an employer who encourages disabled applicants and offers them support when required. We recognise that the claimant had not actually started work at this point but nevertheless she had accepted a conditional offer of employment and at the very least we would have expected the respondent to acknowledge the report, reassure the claimant support would be offered and perhaps discuss arrangements for how and when a meeting would take place.[59]Following her telephone conversation with the claimant on 20 May 2021 Lynda Eyton took further advice from HR and the position remained that a reference was required from the claimant’s current employer, Sandwell.[60]On 26 May 2021 Lynda Eyton telephoned the claimant and explained that the respondent still needed a reference from her current employer, Sandwell. Again the claimant said she would rather not have a reference provided by Sandwell. Lynda Eyton said that this would be required. The claimant then provided the name Surjit Tour as a referee. Mr. Tour was the Director of Law and Governance at Sandwell. The respondent requested a reference from him.[61]A reference was received from Sandwell on 4 June 2021. There are a number of oddities about the reference that was obtained from Sandwell:a. Although Surjit Tour had been named as the claimant’s referee and the reference was requested from him and the document was said to have been authored by him the body of the reference makes it clear that the reference was in fact written by a Senior HR Business Partner.b. The reference describes the claimant’s “overall performance” as “positive”. However, the two final questions were as follows. Firstly “Have you any cause for concern about the candidate’s performance or professional judgement?”. The answer to that question was “Yes”. Secondly “Would you re-employ the candidate?”. The answer to that question was “No”. The form asks for details of these answers. The details provided were that the claimant “has received positive feedback on her work”. This did not make sense. The detail that had been provided was positive, yet the answers given were negative.c. It is not possible to understand from reading the reference why the author felt that there was a concern about the claimant’s performance or why it was said that the claimant would not be reemployed. Furthermore the answers to those questions appear to be at odds with the assessment of the claimant’s performance overall as positive and the details provided that the claimant had received positive feedback on her work.[62]Lynda Eyton attempted to contact Surjit Tour on a number of occasions following receipt of the reference to obtain clarification. It proved to be difficult to get in contact with Mr. Tour or obtain any kind of response from him.[63]On 18 June 2021 the claimant sent an email to Lynda Eyton and others from OH and HR. In her email the claimant said that her psychiatrist had advised her to contact the respondent without delay as she had now been formally diagnosed with autism. Obviously as a result of this email Lynda Eyton knew about the claimant’s autism diagnosis and we consider it is more likely than not that Jenny Lewington was made aware of it too. It was clearly significant information about a prospective employee coming into her department and through her email the claimant plainly intended to make the relevant people aware.[64]The information that the claimant had been diagnosed with autism did not prompt any sort of response from respondent. The respondent did not even acknowledge the claimant’s email. This appears strange to us because it was significant information and at the very least one would have expected to see an acknowledgement and perhaps an assurance to the claimant that adjustments and support could be explored. The email anticipates that there could be contact between the claimant’s psychiatrist and the respondent, presumably to discuss possible support or adjustments, but the respondent never explored that possibility.[65]We find that the failure to acknowledge the claimant’s diagnosis of autism or to take any action in relation to it is at odds with the impression which the respondent has tried to convey to us, i.e. that they are an employer who is positive about employing disabled people. It is also at odds with the evidence which we were given the fact that the respondent would seek to offer support and adjustments to disabled candidates. In our view the respondent’s lack of response instead suggested a negative attitude to candidates with disabilities who may need support and adjustments.[66]In her email of 18 June 2021 the claimant reiterated her concerns about the difficulties she had been having with Sandwell. The claimant went on to say that the support she had received from her church family had been immense and that her pastor had composed a reference for her. She attached the reference to the email.[67]The reference from the claimant’s pastor includes a number of positive observations about the claimant’s capabilities and also describes the situation with Sandwell and her ongoing grievance. The pastor asked the respondent not to allow the complexity of the situation with Sandwell to work to the claimant’s detriment. The pastor also commented on the claimant’s autism assessment and suggested that the claimant had a high degree of insight into understanding how she could adapt.[68]The respondent did not acknowledge the reference from the pastor either. The respondent did not explore how the claimant might adapt in light of her autism diagnosis. The lack of any response to the important issues raised in the claimant’s email and the reference from the pastor strengthened our impression that the respondent’s reaction to the claimant’s diagnosis of autism was negative.[69]In the tribunal’s view a truly supportive prospective employer would have at the very least acknowledged the email and reassured the claimant that appropriate support and adjustment would be offered. The silence and inaction on the part of the respondent suggests in the tribunal’s view that the respondent’s response to the diagnosis of autism was negative.[70]Our concern in this respect was heightened by some evidence that was given by Lynda Eyton in her witness statement at paragraph 60. Lynda Eyton asserted that none of the claimant’s disabilities were known to her at the time the decision was made to withdraw the claimant’s conditional job offer. This is plainly incorrect because Lynda Eyton was copied in by claimant to her email of 18 June in which she confirmed that she had been formally diagnosed with autism. Once again, the tribunal felt that in an important respect Lynda’s evidence was misleading. We acknowledge that in her statement Lynda Eyton went on to discuss the claimant’s autism diagnosis but nevertheless she accepted in her evidence that the assertion at the start of paragraph 60 of her witness statement was wrong.[71]On 20 June 2021 Surjit Tour wrote back to Lynda Eyton who had been chasing him for clarification about the reference provided for the claimant. Mr. Tour said that due to a number of pressing matters he would not have time to arrange a meeting with Lynda Eyton. Instead he said Lee Bentley from Sandwell’s HR team would pick the matter up.[72]Lynda Eyton then chased Lee Bentley for a call to obtain clarification about the claimant’s reference. Once again this was not straightforward, and Lynda Eyton had to try on numerous occasions to get into contact with Mr. Bentley.[73]On 29 June 2021 Lynda Eyton spoke to Lee Bentley about the reference and the claimant’s performance. Lynda Eyton did not question how Mr. Bentley could comment on the claimant’s performance given that the claimant had never worked in the HR Department, and she had never worked with Mr. Bentley.[74]The fact that Lynda Eyton received information from Mr. Bentley is a particular concern to the claimant because she says that although she had never worked with or even met Mr. Bentley, he was one of the people in the HR department who had been dealing with her grievance and she regarded the grievance as being badly handled to the extent that she alleged Mr. Bentley was part of the bullying that she experienced Sandwell.[75]Lynda Eyton made notes of her conversation with Mr. Bentley. The conversation was short. Mr. Bentley confirmed that the reference contained the correct responses but said he was very limited in what information he could share concerning the claimant. There was not much said by Mr. Bentley that could be said to be negative about the claimant. The claimant was described as intelligent and having worked well in the team that she had initially joined. The claimant had then applied for a position in a different team and that role did not seem to have suited her. The claimant had become demotivated and there were issues with relationships and the work location. However Mr. Bentley said that if the claimant was in a job that suited her she would be engaged and motivated and there would be no problems.[76]Curiously, in her evidence Lynda Eyton asserted that Mr. Bentley had been positive about the claimant. When pressed that there must have been something negative said because it led to the withdrawal of the claimant’s job offer Lynda Eyton referred to the fact that Mr. Bentley had described the claimant as a people person.[77]The tribunal finds it difficult to accept that describing somebody as a people person can be interpreted as a negative comment. This is particularly true considering that the role the claimant was being considered for was one which the respondent’s own documents emphasised required the successful candidate to be a team player and a good communicator with interpersonal skills. The tribunal would take the view that somebody who is described as a people person would be much more likely to have interpersonal skills and be a good communicator and team player than somebody who was not a people person. Being a team player, negotiating and communicating necessarily involves working with other people. The fact that the claimant was described as a people person would make it more likely that she would have the essential qualities which the respondent was looking for in a Support Officer which included interpersonal skills, the “ability to communicate effectively with people at all levels” and negotiating skills.[78]Following her discussion with Lee Bentley Lynda Eyton talked with Melissa Green (a member of the original interview panel) and also Jenny Lewington. Jenny Lewington was not a member of the panel who had made the offer of employment to the claimant and Lynda Eyton did not speak to the third member of that panel, Anthony Walker.[79]This was a clear breach of the respondent’s own policy guidelines. Ultimately the claimant was told that her job offer was withdrawn because of an unsatisfactory reference. The relevant policy guidelines state that in the event of an unsatisfactory reference the panel need to discuss any concerns and the panel must make a decision as to what to do. That is not what happened in this case. The policy guidelines are clear that “a final decision cannot be made until the full panel have met to discuss withdrawing the offer of appointment”. Those policy guidelines were breached in this case, and we do not consider that we received any cogent or adequate explanation why there was a breach at such a critical juncture.[80]The policy guidelines also suggest that it may be necessary to hold another interview with the candidate to discuss the concerns raised. This was not mandatory but given that the reference obtained from Sandwell was anomalous and in light of the unusual circumstances especially concerning the claimant’s apparently negative relationship with Sandwell it appears obvious to the tribunal that this was a case in which a further interview to discuss the situation would have been the appropriate way forward. The claimant did not have any opportunity to answer the concerns which arose from the reference provided by Sandwell and in particular she did not have any opportunity to discuss the concern that she was a people person who was not suited to working on her own.[81]At the time the significant decision was made to withdraw the claimant’s job offer Lynda Eyton (and it appears Jenny Lewington) did not take any advice at all from HR. Lynda Eyton simply informed HR of the decision which had been made. This was striking because in her evidence to us Lynda Eyton emphasised that she had followed HR advice and the relevant policy at all times. This was untrue as at the most significant stage – when the decision was taken to withdraw the claimant’s job offer – no HR advice was followed, and the respondent acted in breach of its own policy guidelines.[82]Our concerns about this process were heightened because in oral evidence to us Lynda Eyton explained that the decision to withdraw the claimant’s conditional job offer was made by Jenny Lewington. Not only was it not a joint decision of the panel, it was a decision that was taken solely by Jenny Lewington who was not even a member of the panel.[83]We did not consider that the fact that Jenny Lewington alone had taken the decision to withdraw the offer of employment had been properly explained in Lynda Eyton’s witness statement.[84]Lynda Eyton’s evidence about who the decision maker was led us to question why the respondent had not called Jenny Lewington as a witness. She was the sole decision maker in respect of the crucial decision that was under scrutiny in this tribunal as it was alleged to be discriminatory.[85]We raised this with Ms. Garner in closing submissions. In an effort to be fair and transparent we explained that we may be minded to draw an adverse inference against the respondent for the failure to call Jenny Lewington as a witness. In response Ms. Garner made two key points:a. Firstly she said that although Jenny Lewington had been the decision maker, she had acted upon a recommendation made by Lynda Eyton. The tribunal does not consider that this amounts to an adequate explanation for not calling Jenny Lewington. As is well known in discrimination cases the crucial analysis has to be on the thought processes, knowledge and mindset of the decision-maker. It is perfectly conceivable that a recommendation was made by Lynda Eyton, but also that Jenny Lewington took the decision for her own, separate, reasons.b. The second point raised by Ms. Garner was that the respondent had been conscious of the need not to call too many witnesses in light of the claimant’s disability and how this affected her. The tribunal was not impressed with that explanation either. There has never been any suggestion as far as we are aware that the number of witnesses should be limited as a reasonable adjustment for the claimant. In fact when this trial was originally listed with two respondents it was listed with a longer time estimate and with many more witnesses and no concerns were raised. Jenny Lewington was clearly and obviously the key witness. Frankly she was the most important witness for the respondent to call. We fail to understand how the respondent cannot have appreciated that when they have been professionally legally represented throughout.[86]We concluded that there was no good reason why the respondent had not called Jenny Lewington.[87]Lynda Eyton explained in her evidence that in her discussions with Melissa Green and Jenny Lewington she relayed her conversation with Mr. Bentley and the decision to withdraw the claimant’s job offer was then made by Jenny Lewington. The justification for that decision, as explained by Lynda Eyton in her evidence to us, was as follows. Because the post predominantly involved working on one’s own and Mr. Bentley had described the claimant as a people person the view was that the claimant would struggle to adapt to working in a solitary environment and therefore she was not suitable for the role.[88]As the claimant has, we think correctly, pointed out this meant that the withdrawal of job offer was not really done on the basis of an unsatisfactory reference but on the basis that the respondent no longer believed that the claimant had the appropriate skills to do the job. As we understood it Lynda Eyton accepted this point in her evidence and this was what led Ms. Garner to explain in her submissions at paragraph 70 that the claimant was believed to “not be a good fit” for the role, and this was what led to the job offer being withdrawn. It was further submitted by Ms Garner (at paragraph 19) that based on the reference and the discussion with Mr Bentley the view was taken that the claimant could not undertake the Support Officer role to the respondent’s satisfaction. These seem to us to be appropriate expressions of the respondent’s case.[89]In our view this was a bizarre turn of events. The respondent had already assessed the claimant to have the necessary skills to do the job through its own recruitment and interview process. The respondent was now apparently interpreting what would usually be seen as a positive comment that the claimant was a people person to mean that the claimant did not in fact have the necessary skills to undertake the role.[90]The tribunal would agree with the claimant that this was a clear breach of one of the key tenets of the respondent’s own recruitment policy which states that recruitment and selection decisions should be carried out based on objective criteria which do not disadvantage any of the characteristics protected by law. What the respondent did was to replace its own objective analysis of the claimant’s skills and capabilities - by which the respondent found that the claimant was capable of doing the job and the best candidate - with a subjective assessment (informed by one individual from another organisation who had not even worked with the claimant) to the effect she did not in fact have the suitable skillset to carry out the role.[91]On 29 June 2021 Lynda Eyton wrote to the claimant withdrawing the conditional offer of employment. The email noted that the offer had been conditional on receipt of satisfactory references. It said that having obtained references the respondent had concluded that it would not be possible to offer the claimant the position as Support Officer. No further detail was given. The email did not say a reference was unsatisfactory and not did it explain the view that the respondent now believed that the claimant was not the right fit for the job.[92]On 30 June 2021 the claimant wrote back to Lynda Eyton. She said she was disappointed. She asked for feedback on why the offer had been withdrawn, and for a copy of the references.[93]Lynda Eyton wrote back to the claimant on 1 July 2021. She said that the reference that had been received was not satisfactory. She did not explain anything about the discussion that she had had with Mr. Bentley which had led to the withdrawal of the job offer. She said that the claimant would need to contact the referee directly to obtain a copy of the reference. The referee was Mr. Tour but it was Mr. Bentley who Lynda Eyton says had provided the information which had led to the job offer being withdrawn. Lynda Eyton did not mention anything about the view relied upon now that the claimant was a people person and therefore not the right fit for the role.[94]On 2 July Lynda Eyton confirmed to the claimant that the unsatisfactory reference had come from Sandwell but she did not provide the claimant with the feedback she had requested on why the offer had been withdrawn because she did not explain anything about the conversation with Mr. Bentley, solitary working, being a people person and not being a good fit. She also did not explain that in fact the information that led to the claimant’s job offer being withdrawn had not come from her referee but from Mr. Bentley. We felt this all suggested a lack of transparency and a failure to be straightforward. Conclusions Direct disability discrimination – withdrawal of job offer
Conclusions
[95]We first consider the key allegation concerning the respondent’s withdrawal of its conditional offer of employment made on 14 May 2021. It is agreed that this offer was withdrawn on 29 June 2021.[96]The claimant relied upon a hypothetical comparator. We consider that the claimant established a strong prima facie case that she was treated less favourably than a hypothetical comparator because of disability. These are our reasons: i. We found that a significant element of the respondent’s explanation for withdrawing the offer was false. We refer to our finding that we do not accept that the Support Officer role was one which predominantly required working alone and in isolation. The respondent’s own documents showed the Support Officer role required an ability to work as part of a team and not an ability to work in isolation. None of the documents or the evidence we heard supported the theory that when they recruited into the role the respondent was really looking for someone who could work in isolation rather than with other people. The working arrangements did not suggest that this was a role which would entail working in isolation. The respondent’s case that this was a crucial part of the job was not supported by any of the contemporaneous documentation or our interpretation of the evidence we heard. There was no reference to working in isolation or alone in the advert, job description, person specification or interview questions. The contents of those documents did not support the assertion that a crucial part of the job was about working in isolation. On the contrary there was an emphasis on working as part of a team, working in partnership with others, being a team player, being a good communicator, interpersonal skills, attending meetings and negotiating. ii. Other aspects of the respondent’s explanations for withdrawing the job offer have been inconsistent, misleading and/or lacking in transparency. Prior to the oral evidence it was not made clear that the decision had been taken solely by Jenny Lewington. Instead in her witness statement Lynda Eyton had referred to “our decision” (paragraph 50). In her witness statement Lynda Eyton falsely asserted that the person specification confirmed that the Support Officer role predominantly involved working on one’s own and that she had not known of the claimant’s disabilities at the time the job offer was withdrawn. She also falsely said that she had followed the respondent’s procedures and taken HR advice throughout. More fundamentally, this case was not simply about an unsatisfactory reference. The reference provided was anomalous and the respondent took its decision based on a belief that the claimant was not the right fit for the role. The justification asserted for that was that the claimant had been described as a people person. That description did not come from the claimant’s referee and it was not part of the reference provided. It came instead from a telephone call with Mr. Bentley. This has not always been made clear. Certainly it was not made clear contemporaneously when the claimant requested feedback on why her job offer had been withdrawn. iii. The lack of any truly negative observations by Lee Bentley in his conversation with Lynda Eyton. The claimant was described as a people person. The respondent suggested this was interpreted negatively to mean the claimant was not suitable for the role and therefore the job offer was withdrawn. Yet, a people person would be likely to be a team player and a good communicator with negotiating skills which is what the respondent was looking for. We consider that being described as a people person was not a negative comment and it did not suggest that the claimant was not suitable for the Support Officer role. iv. The respondent’s case boiled down to a subjective and highly questionable belief about the claimant not being a good fit for the Support Officer role. These words are almost direct quotes from paragraph 3 from the Appendix to Igen v Wong. v. The context in which the treatment occurred. The claimant had already been assessed by the respondent through its carefully organised interview and recruitment process as being the strongest candidate and a suitable person for the job. The respondent did not give the claimant any opportunity to respond to the suggestion that she was a people person and this made her unsuitable for the role. vi. The decision was subjective and not based on evidence. It is unclear how Mr. Bentley assessed the claimant to be a people person considering he had never worked with her. In making the decision Jenny Lewington ignored the objective evidence, obtained through the respondent’s own recruitment and interview process, that the claimant was the best candidate for the job and instead reached a view apparently premised on a generalised and subjective assumption that the claimant was not a good fit for the role. vii. The respondent’s failure to call as a witness the relevant decision maker who was Jenny Lewington. The tribunal received no adequate explanation from the respondent as to why Jenny Lewington was not called as a witness. It was obvious that Jenny Lewington was the key witness for this case. viii. The chronology of events. The respondent only withdrew the job offer after it found out about the nature of the claimant’s disability and in particular it was shortly after they found out about the claimant’s diagnosis of autism. ix. The respondent failed to follow its own policy. The policy stipulated that in the event of an unsatisfactory reference the panel should meet again and decide what to do. This did not happen. The panel did not meet again and the decision was taken by Jenny Lewington who was not even a member of the panel. Furthermore, the policy said that recruitment decisions should be based on objective criteria. The claimant’s job offer was withdrawn because of a subjective feeling that she would not be a good fit for the role. x. The respondent behaved atypically. It judged the claimant to be a suitable candidate through its organised and transparent recruitment process but then withdrew its offer based on a subjective and questionable belief that the claimant was not a good fit for the role. The respondent thereby deprived itself of the most suitable candidate for the role, as assessed by its own procedures which had been designed specifically to identify the most suitable candidate. xi. The respondent purported to be an employer who was positive about employing disabled people, yet its actions did not support that. When the claimant disclosed the nature of her disabilities in particular her diagnosis of autism and the fact she may need support the respondent did not engage with her and in our view this suggested a negative reaction. xii. It appeared clear to us that the claimant, quite properly, premised her case primarily on inferences and unconscious bias. As expressed in Igen v Wong: ‘few employers would be prepared to admit discrimination….even to themselves’. We found on our analysis of the relevant facts, summarised above, that the claimant had established by inference Jenny Lewington acted on a form of bias that she would not be a good fit and that had arisen because she disclosed the extent of her disability and in particular her diagnosis of autism which she had communicated to the respondent only 11 days before the withdrawal of the job offer.[97]Based on the above, we found that the claimant had established a strong prima facie case. Certainly in the circumstances we have summarised above the respondent’s treatment of the claimant seemed to us to call out for an explanation. The burden therefore shifted to the respondent to prove that there was no discrimination.[98]The respondent has not discharged that burden. We have received no evidence from Jenny Lewington to put forward a non-discriminatory explanation for her decision to withdraw the job offer. As we have already mentioned there was no good reason for Jenny Lewington not to give evidence and it was obvious she was the key witness. There was no documentary evidence available to explain the decision taken by Jenny Lewington. The evidence from Lynda Eyton was of limited value. As the Judgment of Underhill LJ in the decision of the Court of Appeal in CLFIS (UK) Ltd v Reynolds [2015] IRLR 562 makes clear in the case of a sole decision maker it is his or her state of mind not the state of mind of those providing information to the decision maker which is material. As we have explained we found a crucial part of the explanation provided by the respondent – that the Support Officer role predominantly entailed working alone and in isolation – to be false. And there were other aspects of the respondent’s explanation which we found to be misleading, inconsistent and/or lacking in transparency. Accordingly the respondent has failed to provide cogent evidence and failed to discharge the burden of proof which is upon it.[99]We concluded that in reality the respondent had withdrawn the job offer in consequence of the claimant’s disclosures about her disability, and in particular her diagnosis of autism. We rejected the wholly implausible suggestion that the job offer had been withdrawn because the claimant had been described as a people person. Rather, the respondent had formed a type of bias about the claimant based on her disability and in particular her diagnosis of autism. This was the belief that the claimant would not be a good fit for the role. This was the reason why the job offer was withdrawn by Jenny Lewington. A hypothetical comparator who was not disabled but who was in otherwise in materially the same circumstances would not have had the job offer withdrawn. The claimant was therefore treated less favourably because of her disability and she succeeds in this part of her claim. Direct disability discrimination – other complaints[100]In addition to the withdrawal of the conditional offer of employment, the claimant relied upon the following treatment. We follow each allegation with our analysis.(a) Failing to speak to health professionals. The only health professional who the claimant brought to the respondent’s attention was her psychiatrist, Dr Thompson. It is correct that there was a failure to speak to Dr Thompson. The claimant did not establish a prima facie case. A comparator, had they raised the fact that were under the care of a psychiatrist, would have been treated no differently than the claimant was in this respect. The claimant was not treated less favourably. There was no basis for a suggestion that the reason why the respondent did not contact Dr Thompson was the claimant’s disability. Lynda Eyton did not contact the claimant’s psychiatrist because she did not believe it was necessary for her to do so. She would have taken the same approach in relation to a prospective employee who was not disabled.(b) Failing to believe that employees get bullied. The claimant did not adduce sufficient evidence that the respondent generally or any particular individual held this belief. We find they did not. There was no evidence of less favourable treatment and no evidence that the reason for any difference in treatment was disability. In our view the respondent would have taken the same approach with a nondisabled prospective employee who had made a complaint of bullying by their previous employer.(c) Failing to speak with Gail Powell, social worker. It is correct that the claimant’s social worker Gail Powell was not contacted by the respondent after the claimant had asked them to. The claimant did not establish a prima facie case. A comparator, had they raised the fact that they had a social worker, would have been treated no differently than the claimant was. The claimant was not treated less favourably. There was no basis for any suggestion that the reason why the respondent did not contact Gail Powell was the claimant’s disability. Lynda Eyton did not contact the claimant’s social worker because she did not believe it was necessary for her to do so. She would have taken the same approach in relation to a prospective employee who was not disabled.(d) Failing to speak to Dr. Thompson the psychiatrist. This is a duplication of point (a) above, and our analysis set out above in relation to that point is repeated.(e) Failing to remain impartial by not accepting two former employer and one Reverend reference and accepting the most current employer's reference. The treatment complained of here is accepting Sandwell’s reference in preference to those provided by Birmingham City Council and the claimant’s Reverend. It is factually correct that the respondent did that. However, the claimant did not establish a prima facie case. A comparator would have been treated no differently than the claimant was. The claimant was not treated less favourably. There was no basis for a suggestion that the reason why the respondent sought and accepted Sandwell’s reference was the claimant’s disability. The reason was that the respondent’s practice was to seek and rely upon a reference from the prospective employee’s current employer. The same approach would have been taken in relation to a prospective employee who was not disabled. (i) Failing to consider why the claimant would receive an incremental pay increase. Little to no evidence was led on this point. There was no evidence of less favourable treatment and no evidence that the reason for any difference in treatment was disability. In our view the respondent would have taken the same approach with a non-disabled prospective employee. (j) Failing to consider the claimant's character during the interview process. Little to no evidence was led on this point. There was no evidence of less favourable treatment and no evidence that the reason for any difference in treatment was disability. In our view the respondent would have taken the same approach with a non-disabled prospective employee. (k) Failing to take into account bullying allegations made against her former employer. We found that the claimant did raise that her grievance against Sandwell concerned allegations of bullying. It appears to us that the respondent did not really take those into account when it was assessing what to do about the reference and Mr. Bentley’s conversation with Lynda Eyton. But, there was no evidence of less favourable treatment and no evidence that the reason for any difference in treatment was disability. In our view the respondent would have taken the same approach with a non-disabled prospective employee who had referred to a grievance about bullying.[101]For the reasons set out above we find that the claimant was not treated less favourably in relation to her other complaints of direct disability discrimination and the reason for her treatment was not disability. The other complaints of direct disability discrimination must therefore fail. Discrimination arising from disability[102]It was admitted that the respondent treated the claimant unfavourably by withdrawing the conditional offer of employment.[103]The claimant relies on the following things arising in consequence of her disabilities. We follow each thing with our analysis of whether it actually happened and, if so, whether it arose in consequence of the claimant’s (d) Claimant's panic attack during her conversation with Lynda Eyton on 20 May 2021 when the subject of her current employer was raised, at which she raised the issue of suicide and Caroline Flack. We found that the claimant did not have a panic attack and she did not express suicidal thoughts during her conversation with Lynda Eyton on 20 May 2021. We found it was more likely that the claimant was trying to put her best foot forward in this conversation and although nervous she did not go to the extreme of having a panic attack or expressing suicidal thoughts. We refer to our findings above. (e) The 135 days' absence in her last 2 years with the second respondent to which Lee Bentley referred at page 2 of the second respondent's reference. It is correct that the claimant’s 135 days' absence in her last 2 years of employment was referred to in the written reference from Sandwell. The claimant did not establish that this absence arose from her disability. We could accept in general terms that disabilities can cause absence, particularly anxiety and depression which the claimant had. However the claimant did not establish that this particular absence arose in consequence of disability. (f) Claimant's "demotivation" and the "problems and issues within the work setting and with staff relationship" to which Lee Bentley referred in his telephone call with Lynda Eyton on 29 June 2021. It is factually correct that these statements were made. The context was that Mr. Bentley was describing the situation when the claimant moved to a role which she didn’t like. According to Mr. Bentley the claimant became demotivated and this caused the problems identified. Mr. Bentley went on to say that if the claimant was in a role which suited her there would be no problems. There is an absence of any evidence suggesting that these issues arose in consequence of the claimant’s disability. It is certainly conceivable that conditions like depression could cause demotivation and problems with relationships but there was insufficient evidence that this was the case in relation to the claimant. It appeared to us to be equally conceivable that the claimant was simply demotivated as she didn’t like the job and this is why the situation improved when she moved jobs. Similarly the apparent problems with relationships could also have arisen for other reasons – such as the claimant’s complaint that she was being bullied. We found that it had not been established that the issues reported by Mr. Bentley arose in consequence of[104]In any event we found that the unfavourable treatment was not because of any of the things identified by the claimant. We refer to the findings we made above. We found that the job offer was withdrawn in consequence of the claimant’s disclosures about her disability, and in particular her diagnosis of autism. The respondent had formed a biased view about the claimant based on this and this is what led to the belief that the claimant would not be a good fit for the role.[105]It was not established that a consequence of the claimant’s disability was a reduction in her ability to do the job. Rather it was our view that a biased assumption had been made about the claimant’s ability to be a good fit for the role and that was based on disability. This was therefore a case of direct disability discrimination rather than discrimination arising from disability. We therefore find that the claim of discrimination arising from disability fails.[106]For completeness we should mention that the respondent reworded the legitimate aim relied upon to make it clearer. The reworded legitimate aim relied upon was as follows: Anyone undertaking the role claimant applied for had to be capable of working in isolation - a crucial part of the job. The nature of the job [included] dealing with high-ranking staff [and] there was a need to produce documentation. The role was a monitoring role predominantly working in isolation undertaking various tasks including conducting investigations, research, collecting and collating statistics and writing reports. [The role involved] little interaction with other colleagues and virtually none with members of the public [requiring the post holder] to produce documents.[107]This legitimate aim places a heavy emphasis on the Support Officer role involving working “in isolation”. We have found that the role did not in reality involve predominantly working in isolation for the reasons we have already explained. We would therefore find that aim relied upon was not legitimate because it was premised on the false assertion that the Support Officer role predominantly involved working alone and in isolation.[108]We would also find that the respondent did not act proportionately. In particular the respondent could have discussed with the claimant the concern that she was a people person and that made her unsuitable for the role. As the respondent’s own policy envisages the appropriate way to do that would have been to hold a further interview with the claimant and the recruitment panel. The respondent could then have made an informed and transparent decision as to what to do next. Clearly in our view this was something less discriminatory than simply withdrawing the job offer and not properly explaining why. It was not in our view appropriate or reasonably necessary for the respondent to simply withdraw the offer. The needs of the claimant had not been taken into account or balanced with the respondent’s needs. Victimisation[109]It was admitted that the respondent withdrew the job offer and this was a detriment.[110]The alleged protected acts were as follows: - (c) On 13 December 2020, the claimant complained to David Stevens, Sandwell's CEO of "discriminatory conduct". (d) On 8 March 2021, the claimant complained to Surjit Tour of discriminatory treatment.[111]There was a letter to Mr. Tour from the claimant in the bundle dated 8 March 2021. In this letter the claimant makes allegations of discrimination and victimisation. This was a protected act. However there is no evidence it was ever brought to the attention of the respondent. We find the respondent was not aware of it.[112]There was insufficient evidence for us to find that the claimant also did a protected act when complaining to Sandwell’s CEO on 13 December 2020. In any event there was no evidence that the claimant’s complaint to Mr. Stevens was brought to the attention of the respondent and we find the respondent was not aware of it.[113]We therefore find that the respondent could not have withdrawn the job offer because of the alleged protected acts because they were unaware of them.[114]In the alternative, the claimant alleged that following the conversations with the claimant and Lee Bentley, the respondent formed the view that the claimant had done or may do a protected act. The claimant did not substantiate this allegation. There was insufficient evidence that the respondent had formed such a view. We find that they did not.[115]We therefore find that the respondent could not have withdrawn the job offer because of the view that the claimant had done or may do a protected act because they did not form that view.[116]In any event we refer to the findings we have already made as to why the claimant’s job offer was withdrawn. The decision had nothing to do with any alleged protected act or any belief that the claimant had done, or might do, a protected act. Instead it was done because of the biased view taken about the claimant based on her disability and in particular her diagnosis of autism.[117]For these reasons the victimisation claim must fail. Next steps[118]There may now need to be a remedy hearing and we shall issue an order about that separately.