Mrs S Othman v First Greater Western Ltd: 1401656/2024 and Others
EMPLOYMENT TRIBUNALS
Case No 1401656/2024, 6002241/2023
Between
Mrs S OthmanClaimantFirst Greater Western LtdRespondent
Before
Employment Judge LiveseyIn person for claimantMr England (instructed by counsel) for respondentDate 12 June 2026
JUDGMENT
The Claimant’s claims of discrimination on the grounds of disability, victimisation, unfair dismissal, breach of contract related to notice and unlawful deductions from wages are dismissed.
REASONS
[1]Claims1.1 By a claim that was issued on 5 November 2023, the Claimant brought complaints of discrimination on the grounds of race and/or disability (No. 6002241/2023, now re-numbered as 1401656/2024). The complaint of discrimination on the grounds of race was subsequently withdrawn and dismissed.1.2 By a further Claim Form that was issued on 30 April 2024, the Claimant brought additional complaints of victimisation discrimination on the grounds of disability (No. 1401147/2024).1.3 By a third Claim Form that was issued on 30 April 2025, the Claimant brought further complaints of discrimination on the grounds of disability, victimisation, harassment, unfair dismissal and money claims (notice, holiday and wages) (No. 6015613/2025, re-numbered to 1401679/2025).[2]Evidence2.1 The Claimant gave evidence in support of her case and called Mr Roach, her husband and an employee of the Respondent. Mr Valentine, an Organiser with the TSSA Trade Union was to have given evidence, but his statement was agreed and he was not called.2.2 The Respondent called the following witnesses in the following order; - Mr Hardy, Head of Rosters and Resources; - Mr Winter, Crew Delivery Team Leader; - Ms White, former Head of Employee Relations, now Head of Strategic HR Business Partnering; - Mr Hawker, Head of People Relations and Strategy; - Mr Bailey, Head of Project Operations; - Ms Hancock, Head of Organisational Development and Culture; - Ms Hartley, Head of HS2.2.3 The following documents were received by the Tribunal; - C1; An additional shift pattern form; - R1; A hearing bundle of relevant documents; - R2; A second bundle, including a cast list, reading list, a chronology and the witness statements; - R3; An Agreed Explanation of the Roster System; - R4; Ms Hancock’s handwritten notes of the telephone call 14 November 2024; - R5; The Respondent’s closing submissions.[3]Issues3.1 The parties had agreed a List of Issues which was discussed before Employment Judge Ferguson at the Case Management Preliminary Hearing which she conducted on 7 July 2025. The final, agreed List appeared within the hearing bundle at pages 176-188.3.2 The Claimant’s disability of Chronic Fatigue Syndrome (‘CFS’) was conceded by the Respondent on 9 April 2024 (see paragraph 2.1 of the List of Issues [178]). The complaints of discrimination which were advanced were, in summary, as follows;3.2.1 10 adjustments claims based upon 2 PCPs, with lack of knowledge being run as a defence in respect of some aspects (paragraph 3);3.2.2 6 complaints of discrimination arising from disability (paragraph 4), with justification being run as a defence in respect of some of them, but not knowledge. During the course of the hearing, Mr England conceded that the act of dismissal had arisen from the Claimant’s disability. The justification defence had not been articulated in respect of that detriment in the List and Mr England provided the following additional phrasing in relation to the aim in paragraph 4.4; “….within the need to manage staffing levels, including absences and attendance;3.2.3 23 complaints of harassment (paragraph 5);3.2.4 12 complaints of direct discrimination (paragraph 6);3.2.5 6 acts of victimisation, based upon 3 protected acts, one of which was conceded before the hearing. A second was partly conceded on the first day of the hearing in that Mr England indicated that all but the first email within 8.1.1 were conceded (paragraph 8).3.3 In addition, there was the complaint of unfair dismissal (the Respondent asserted that the dismissal had been on the grounds of capability and/or some other substantial reason), two complaints of wrongful dismissal and a complaint of unlawful deductions from wages relating to holiday pay in the sum of £852.62. Time limit issues also remained ‘live’.3.4 The hearing had been listed in order to determine all matters of liability only (paragraphs 1 to 11 of the List, including the Polkey issue at paragraph 9.4), but we were also to have addressed the question of the ACAS Code within paragraph 13.2.4.3.5 Subject to the points above, at the start of the hearing the parties confirmed that the List of Issues still represented the matters which the Tribunal had to determine at the hearing.[4]Hearing4.1 The case was originally listed for a hearing over six days in February 2025 at a time when the first and second claims had been issued. The hearing in February could not proceed because the parties were not ready and, in April, the Claimant issued her third claim. The case was relisted for 10 days when it came before Employment Judge Ferguson on 7 July 2025.4.2 Reasonable and proportionate case management directions had been agreed both before the Regional Employment Judge at the initial May 2024 hearing and Judge Ferguson at the July 2025 hearing. At that stage, given the consolidation of all three claims, the bundle had grown to one that was to have been limited to 450 pages and the statements were to have been limited to 7,500 words for the Claimant and 28,000 for the Respondent. Judge Ferguson’s draft timetable no doubt reflected those limits in the time allocated for pre-reading.4.3 The parties subsequently asked for extensions to the bundle and the statements. The hearing bundle limit was increased by more than 100% and the Respondent’s witness statements by more than 33% by Employment Judge Roper at a further hearing which he conducted on 16 April. That was a substantial amount of additional reading and the Tribunal noted that the Regional Employment Judge had already warned the parties that the increases were likely to have ‘substantially curtailed’ the time left for cross examination (his email of 28 May).4.4 The Claimant’s statements were substantially in excess of the limits agreed by consent at the July 2025 hearing. Her’s was in excess 10,000 words. She blamed her former solicitors for the error. The Respondent did not invite the Tribunal to take any action in respect of the breach.4.5 All of this meant that the timetable which had been sketched out at the July hearing might have been under some pressure. It was re-visited at the start of the hearing. Following some discussion, the parties remained content with it and, subject to a short additional period for initial reading, the Tribunal accepted and adopted it too.4.6 Little needed to have been done to ensure that the timetable was met and both Mr England and Mr Roach deserved the Tribunal’s thanks for their level of preparation which enabled an efficient use of the allocated time.4.7 Finally, it was worth recording that, having indicated an intention to make closing submissions, the Claimant ultimately decided not to say anything at the conclusion of the hearing. That was her prerogative.[5]Facts5.1 The Tribunal reached the following factual findings on the balance of probabilities. It attempted to restrict its findings to matters which were relevant to a determination of the issues. Page numbers referred to below in square brackets are to pages within the hearing bundle, R1, unless otherwise stated. We made it clear to the parties that we had only read those documents within the hearing bundle which had been referred to us in evidence. General impression of the evidence5.2 Before embarking upon a detailed analysis of the evidence, we should express some general views about the quality of the oral evidence that we heard.5.3 The Claimant was not a good witness. She had to be reminded to answer Mr England’s questions on several occasions. Even when presented with what appeared to have been a reasonable proposition, she would not often accept it. For example, in paragraph 42 (a) of her witness statement, she had alleged that a particular email from Occupational Health (‘OH’) had demonstrated Mr Hardy’s “awful management style”. The email from Dr Gemmell expressly stated that he was not commenting on his management style [325]. She would not accept that that part of her statement might have been framed too forcefully, even in hindsight.5.4 The Claimant appeared to have the view that she had a far better understanding of the Respondent’s duties towards her and her entitlements than it did. She held management in very low regard. Mr Hardy said that, during her time in the department, she had given the impression that she had a better understanding of the job than everyone else had and had had no desire to have matters explained to her.5.5 In contrast, Mr Hardy gave his evidence in a calm and measured fashion. His patience and courtesy during cross examination were particularly admirable in view of his belief that the stress of the management of the Claimant, the interviews which had followed during the various internal processes and the litigation, had raised his stress to such a level such that he had suffered a stroke. He demonstrated that he was an experienced manager with a very good working knowledge of the Crew Delivery Manager’s role.5.6 It was noteworthy that his wife, another of the Respondent’s employees, suffered from the same disability as the Claimant. She too had been unable to continue in her contractual role, had been redeployed and had ultimately left the business because she had been unable to continue in that role too.5.7 Mr Winter was pragmatic. He gave ground when he needed to. Mr Bailey, in particular, impressed us as a compassionate and pragmatic witness who appeared to have gleaned a very good understanding of the Claimant’s case against his own detailed and valuable knowledge of the rostering system. Introduction5.8 The Respondent operates a rail business focussed on providing services within the South West of England and to and from London. It employs approximately 7,000 people.5.9 The Respondent operated under a franchise model until 2020 when it came back under the direct control of the Department for Transport when it became taxpayer funded. The financial constraints upon it had been significant thereafter. It now provides it services under a National Rail contract with the Department and its services are independently audited against KPIs which, if not met, result in financial penalty. KPIs are applied to elements of the Respondent’s catering service too. Efficiencies are constantly being sought.5.10 The Claimant was employed from 22 April 2019, initially as a Stations Dispatcher but, from March 2022, she worked as a Crew Delivery Manager (‘CDM’) and was based at the Respondent’s Swindon premises (her contract was at [204-217]). Her line manager from about September 2022 was Mr Winter, Crew Delivery Team Leader. He reported to Mr Hardy, Head of Rosters and Resources. The Respondent employs approximately 40 CDMs.5.11 CDMs planned the resourcing of train crews to ensure that the right people were positioned in the right places in accordance with the Respondent’s timetables. The Claimant was part of the Resources Team. The Team operated four ‘desks’; High Speed Services (‘HSS’), the London Thames Valley route (‘LTV’), the south coast, Bristol local services and Devon and Cornwall (known collectively as the ‘West’ desk) and ‘Catering’. The Claimant initially supported the HSS desk during her training, but she was subsequently allocated to support the Catering Team which ensured resourcing of all of the catering, Sleeper and Pullman crews.5.12 Once trained up as a CDM in that role, she could not easily have moved to another desk. Mr Hardy stated that it typically took 8 to 12 weeks to train on a new desk and people within the Resources Team could not easily cover shifts across different desks unless previously trained. Few had been.5.13 Given the nature of the Respondent’s services, the Resources Team worked 24/7 on a rolling mixture of shifts over a 7 week pattern (see the ‘Agreed Explanation of Roster System’, R3); earlies (6:30-13:30), days (13:30-21:00) and nights (21:00-6.30). There were planning shifts which were between 8.00 am to 4.00 pm which were considered to have been the easier, less reactive, shifts. The pattern provided for 3 weekends of work and 4 weekends off. On Saturdays that were worked, the thresholds between shifts moved a little and the nightshift was 12 hours (18:30 to 6:30). There was one week of 7 consecutive nightshifts in the pattern. Shifts were between 7 and 12 hours long. Staff could have seen their shifts months in advance to enable them to plan their rest periods and life outside work. There was only one closure day in the year.5.14 Some staff were deemed ‘as required’. That did not mean that they were super-numerary who were merely allocated to cover other’s shifts. Rather, they were part time employees who worked fixed shifts but were bolted onto the busiest periods in order to assist with workload. Their title was, perhaps, a little misleading.5.15 The shifts were stress tested for fatigue, using a fatigue index set by the Rail Standards and Safety Board (‘RSSB’). Although within the maximum tolerance, they were towards the top end. Absences, disruptions and other unlooked for events required the skilful and quick re-allocation of resources from time to time. It was therefore imperative that those who were expected to work, did so in accordance with their expected shift. Mr Hardy described it as a high pressure job. In cross examination, the Claimant accepted that the CDM’s role was stressful, difficult and tiring. Disability and knowledge5.16 The Claimant’s disability, Chronic Fatigue Syndrome (‘CFS’) had been admitted by the Respondent.5.17 Although not then formally diagnosed as CFS, the OH report of 25 May 2023 referred to her “chronic fatigue as having troubled her since her late twenties” [254]. Her symptoms were described in Mr Harrington’s letter of 16 October [335-6] as fatigue, unrefreshing sleep, cognitive dysfunction, characterised as ‘brain fog’ and widespread pain. She told him then that she had hoped that, having been signed off work, her symptoms would have been more manageable, but “unfortunately this has not been the case” [335].5.18 The Claimant said that she had raised the issue of her fatigue with Mr Hardy before March 2023, but accepted not having raised other symptoms (numbness and/or dizziness) before. CFS was not formally diagnosed until November 2023. Meeting 30 June 20225.19 At a time when she was still being trained on the HSS desk in 2022, the Claimant was absent from work as a result of a pay dispute. Once the pay issue was resolved by Ms Clark in HR, she did not return, stating that she was suffering from stress. Mr Hardy had been off for a period of extended leave at the time but, when he returned in June, he arranged a meeting with her.5.20 During that meeting on 30 June, the Claimant alleged that Mr Hardy told her ‘you’re not well’ in light of the fact that she claimed that the pay issue had affected her day-to-day life. She also alleged that he questioned how she could have put work-related stress on her fit note and said ‘it’s not work, it’s you.’5.21 During her evidence, she alleged, for the first time, that she had made notes of the meeting (and other meetings) on her phone. Those notes were never disclosed and she alleged that they had since been deleted. She also stated that Mr Hardy had been unaccompanied at the meeting.5.22 Mr Hardy could not remember having made either of the comments attributed to him. He said that he was ‘horrified’ by the allegations (paragraph 31 of his witness statement). He said that she had been emotional during the meeting and had opened up to him and Ms Clark about the difficulties that she had with her family commitments and feelings of loneliness. He appeared to have a good, detailed recall of the meeting (paragraph 35 of his statement).5.23 We found it difficult to accept that Mr Hardy’s description of the Claimant’s disclosures about the domestic stressors in her life had been made up. We also considered it to have been more likely than not that Ms Clark had been present. It was noteworthy that not all of the comments attributed to Mr Hardy had been repeated in the Claimant’s subsequent June 2023 grievance, despite her alleged phone notes (e.g. ‘it’s not work, it’s you’ [259- 261]). Overall, we preferred the Respondent’s account.5.24 After the meeting, the Claimant did return to work and, because of what she had shared, she was allocated a peer trainer who was also a working mother. She was encouraged to join the WhatsApp group, many members of which were of a similar age to her. Mr Hardy stated that she was not interested in doing so. Move from HSS to Catering5.25 It was clear to the Respondent that the Claimant struggled with the HSS desk, which was acknowledged to have been the hardest of the four. Concerns had been expressed about her performance and knowledge retention and she had said to her peer trainer, Ms Ulyck, that she considered the workload to have been unacceptable. Ms Ulyck informed management that she did not consider that the Claimant had wanted to put sufficient effort in.5.26 For all of those reasons, the Claimant was moved from HSS to the Catering desk, which was widely considered to have been least stressful of the four and it involved fewer 12-hour shifts on nights. Her shift pattern was not changed. Mr Hardy, however, considered that her attendance remained “very erratic and her behaviour towards colleagues could be very abrupt” (paragraph 43 of his statement).5.27 After the move, Mr Hardy stated that there were still issues with her training and her new, experienced peer trainer, Ms Standerwick, raised several issues including her failure to read the necessary terms and conditions for the Catering desk and her unscheduled departure from a shift.5.28 At a subsequent welfare meeting with Mr Hardy and HR on 23 September, the Claimant indicated that she did not have time to read any of the relevant terms and conditions because of her domestic commitments. She alleged that Mr Hardy then said to her that she ‘did not like’ the job, that she was ‘struggling’ with it, that people thought that she was ‘miserable’, ‘never smiled’ and was ‘unapproachable’, that she was ‘a child of the 90s’ and ‘felt too entitled to work because her spouse was a train driver’ and that she had her ‘home life constantly on her mind’.5.29 Mr Hardy denied making most of the comments, although he could not remember the last one (see paragraph 49 of his witness statement). Again, he remembered her having been tearful and saying that she was not used to people being nice to her. The Claimant had accepted that she had been in tears, but had attributed it to his ‘vicious attack’, whilst also saying that he had been ‘calm’ and ‘appeared’ to have been ‘looking after my interests’ (paragraph 27).5.30 Paragraph 27 of the Claimant’s statement suggested that her adverse impression of the meeting had been retrospectively constructed in light of events which occurred 7 months’ later. In cross examination, the Claimant accepted that it was she who had referred to herself as a ‘millennial’, which was a rather different spin on one of the comments alleged against Mr Hardy.5.31 Overall, again, we preferred the Respondent’s account of the meeting.5.32 A meeting took place with Mr Hardy on 24 September in the company of the Claimant’s peer trainer, Ms Standerwick, and Mr Winter. Before that meeting, however, Mr Hardy checked in with her to see if she had improved from the previous day. She complained that he repeated many of the comments that he had made the previous day and that she was exposed to “another scathing attack” (paragraph 5.1.3 of the List of Issues).5.33 Hardy denied that he was aggressive and/or had said the things attributed to him. It was surprising to the Tribunal that, if he really had been so ‘vicious’, it had taken 9 months for her to raise it within her grievance.5.34 At the second meeting later in the day with Ms Standerwick and Mr Winter, the Claimant made further allegations; that Mr Hardy had threatened to have anyone who had criticised him or his management team ‘bounced out of the building so quickly that they would not have known what had hit them’ and that she ‘would not have wanted to have been pulled into room 7’ with him as he would have been ‘banging his hands on the table, shouting’. Further acts of aggression were alleged against him. In cross examination, however, she accepted that the discussions had had nothing to do with her disability.5.35 Mr Hardy said that he did refer to the emails that had passed between her and Ms Standerwick [1037-9]. In evidence, he said that he considered the Claimant’s email had been ‘disgusting’. Knowing that she had fallen out with a previous trainer, he did not want that to happen again. He spoke to them both firmly and reminded them that they were in a workplace, not a playground and had to work together professionally (paragraph 58 of his statement). No threats were made and he did not ‘bark’ at her as had been alleged.5.36 Mr Winter told us that Mr Hardy had never interacted with the Claimant in a manner which he considered threatening (paragraph 53 of his statement). He remembered that Mr Hardy had been firm and that the Claimant had never understood that any physical threat was being made against her. In evidence, he said that a comment about criticism of his management team had been made in respect of ‘anyone’ and it had been directed at both the Claimant and Ms Standerwick, although he was trying to mediate an argument between them at the time. There had been a lot of raised voices and tension.5.37 Mr Hardy willingly conceded that he had raised his voice; he used to run a pub and was used to de-escalating situations. The two women had raised theirs in their argument and he was trying to reassert control.5.38 We concluded that, as the most objective and least directly involved, Mr Winter’s account of this meeting was the most reliable, although it did not depart significantly from Mr Hardy’s own. Sickness absences leading to the meeting of 4 April 20235.39 Between the end of October 2022 and February 2023, the Claimant was off sick for a number of reasons related to a covid infection.5.40 During this period, on or around 8 November 2022, the Claimant alleged that Mr Hardy closed an application that she had made to do an internal apprenticeship. He could not explain the email that she received from the Recruitment Team [219], but he did say that, because she had been off sick at the time and had not been available for a discussion about the application, it could not have been approved. There was a requirement for such a conversation to have taken place in every case to ensure that the apprenticeship was going to have been appropriate for the employee. The application remained open on his laptop and was never closed by him [218]. It was not raised by her upon her return in March 2023 and appeared to have been forgotten about.5.41 Also during this period, in February 2023, the Claimant alleged that a rumour began to circulate regarding her former trainer on the HSS desk, Ms Uhlyk; that she did not think that the Claimant was capable of undertaking the CDM role and that she had not wanted to train her, which had led to her move to the Catering desk. She specifically alleged that Mr Hardy had been guilty of spreading the rumour, which he flatly denied. In answer to the Tribunal’s questions, the Claimant expressly stated that Mr Hardy had told her that he had started the rumour. We found that to have been a rather startling piece of evidence and, in light of Mr Hardy’s flat denial, we rejected the Claimant’s evidence on the point.5.42 An OH report which was obtained in February 2023 advised that the Claimant could have returned to work in March on a phased basis [220-1]. A phased shift pattern was built for her, with no night shifts, as recommended.5.43 The Claimant was due to have returned to her full shift pattern on 14 March. The day before, the 13th, she presented a further fit note from her GP which stated that she was “not to work nights” and was “not to work more than three consecutive days in a calender week” [222-3]. She was off again then with norovirus and subsequently attended a return to work meeting with a line manager, Mr Winter, on 20 March. She then informed him that she was seeking to have her fit note extended but, because it then indicated that she could have worked 3 days/week, which she was expected to have done, those shifts were unchanged and she completed them.5.44 In light of his discussions with the Claimant on 20 March, Mr Winter spoke to Mr Hardy. Mr Hardy met with the Claimant on 22 March and discussed the next steps, including the need for a further OH referral and a meeting in order to discuss long-term plans. He did not then consider that it was going to have been possible to have accommodated her on a three day week in the long term. Others had been covering her missed shifts.5.45 The Claimant alleged that Mr Hardy said to her 22 March that, ‘when it came to redundancies, people like her would have been looked at first’. She also claimed that he tried to ‘force her’ off sick and advised her to apply for benefits. She also alleged that she had asked Ms Kirkpatrick to attend the meeting. Ms Kirkpatrick’s evidence to the grievance investigation was that Mr Hardy had secured her attendance, as he had claimed. The Claimant asserted that she had been coerced to say that.5.46 Mr Hardy denied the comments attributed to him. He said that he told the Claimant that she could have been placed back on sick leave whilst the restrictions recommended by her GP were assessed by OH. He also alerted her to the fact that she might have been moved to nil pay because of the amount of time that she had already had off sick and he provided her with a leaflet related to ‘Health Assured’, which may have assisted her financially. He denied having ‘gloated’ over her plight and said that the conversation was typical of many that he would have had in similar circumstances.5.47 We concluded that the Claimant’s assertion that Ms Kirkpatrick had been somehow ‘coerced’ to give inaccurate evidence about a relatively innocuous issue as to who had caused her to have been at the meeting was unlikely. It was also inconsistent with other documents (for example, the reference to her future intention to invite witnesses to meetings with Mr Hardy that was referred to in September 2023 [322]). Further, in relation to the meeting itself, we noted that not all comments alleged by the Claimant subsequently found their way into grievance (e.g. the comment about benefits). Mr Hardy’s account was preferred.5.48 The Claimant alleged that Mr Hardy ‘hovered around her’ on 29 March checking her work. Again, he denied doing so. He had to find her to deliver an invitation to a welfare meeting and waited a few minutes until the end of her shift in order to do so.5.49 The Respondent then received another fit note with the same restrictions on it [233]; “No night work. Maximum 3 days work per calendar week.”5.50 The welfare meeting with Mr Hardy took place on 3 April. An independent notetaker and an HR representative, Ms Moloney Davies, also attended and the Claimant was accompanied by a trade union representative, Mr Clifford [242-8].5.51 The Claimant had been due to start a week of night shifts, which she clearly could not have done in light of the restrictions on her fit note. Mr Hardy tried to explain that there was therefore a further need for her to have been assessed by OH. The GP’s restrictions were then inconsistent with the advice that the Respondent had most recently received from OH which had supported her phased return to work without those restrictions. The Claimant herself was complaining of dizzy spells, numbness and of being “very fatigued” [244].5.52 Mr Hardy described the Claimant as having been ‘very volatile’ during the meeting, such that it had to be adjourned to enable her to calm down more than once (the notes reflected her ‘shouting’ [247], something which she denied). She was very reluctant to accept that she was going to have been marked as off sick, but Mr Hardy did not consider that the Respondent could accommodate her reduced working pattern and decided that she ought to have been placed on sick leave whilst further advice was taken from OH.5.53 The Claimant emailed Mr Hardy stating that she disagreed with his decision, that he had no grounds for it, but that she would not have been going against her GP’s advice [234]. It was important to note that there was no reference to any alleged disability, discrimination or the Equality Act within the email. She stated that she was still able to work the majority of her shifts.5.54 Mr Hardy disagreed; she could not have worked the week of night shifts that she had coming up and he stated that it was a frequently followed practice in the business that, if employees were not able to work their full hours at the end of a phased return, they were deemed sick. Indeed, it was the practice specified in the Respondent’s Fit Notes – Guidance for Managers [1021]. Sick leave from 4 April 20235.55 The Claimant was scheduled to attend an appointment with OH on 27 April 2023. On the day of the appointment, she was unwell and unable to attend. It was rescheduled to 25 May. The Claimant alleged that Mr Hardy interfered at that point. Having been told by OH that she was sick, he simply notified them that it ought to have been rescheduled [239-240]. She considered that the appointment could have been conducted by telephone or video instead. Mr Hardy said that he consulted HR and was advised that the meeting ought to have been face to face. It was re-scheduled.5.56 The subsequent OH report of 25 May did not say that the Claimant was unfit for her role (classed ‘F1’), but was “F2 - fit for work with restrictions” [254-6]. It advised against her working long and/or night shifts but recommended a further phased return and an “improved shift roster which encompasses a forward marching consecutive day roster – such as 2 earlies, two lates, two nights followed by 3 or 4 rest days”. It was recognised that there was “significant work conflict…which is neither helpful nor desirable and which can substantially muddy the waters.” In the event that the suggested changes could not have been accommodated, it was acknowledged that the situation was likely to have been seen as a “misfit which is certainly going to be long-term.”5.57 Mr Hardy did not consider that OH’s suggested changes were possible within the shift pattern, which contained both long and night shifts. He spoke to the rest of the Claimant’s team about the possibility of it having been amended, but they were not happy. Extra nights would have had to have been shared between them and they would have lost 5 rest days each over a 7 week period (paragraph 94 of his statement). Mr Hardy considered that that would have had an important impact upon morale, fatigue and potential future absences. The shifts were already recognised as being at the top end of acceptable RSSB tolerance levels. Some indicated an intention to leave if their shifts had been changed against their wishes. Alternatively, if overtime had been used to cover the gaps, there would have been additional, significant cost.5.58 Mr Hardy also stated that he had looked into the possibility of hiring another member of staff, but he did not have the budget for it. He would have had to have applied to the Department for Transport and he had spoken to the Finance Director and HR who had told him that he had no chance of securing it given the cost constraints that he already faced since the Respondent was already overspending on wages. Mr Hardy told us that the Respondent does recruit CDMs from time to time, but only to replace those lost. The headcount has been unchanged.5.59 In addition to the OH advice, the Claimant had been experiencing dizzy spells, extreme fatigue and numbness in her hands. Mr Hardy had grave reservations about her returning to the busy, stressful rostering office.5.60 The Claimant clearly did not like what had happened. On 6 May, she wrote to indicate that she would no longer deal with Mr Hardy. She was only prepared to communicate with Mr Winter or at directorate level. Mr Winter conducted a welfare meeting with her Claimant on 19 June [263-8]. She then explained that her CFS symptoms had ‘ramped up’ and she asked to come off the main rolling shift pattern and to have been provided with a personalised, tailored one. With her condition and her childcare responsibilities, she said that she had a “bad work/life balance”. Mr Winter advised her to submit a flexible working request for that purpose. Grievance; Stage One5.61 On 18 June 2023, the Claimant submitted a grievance in which she raised a number of serious allegations against Mr Hardy; that he had made threats of verbal/physical abuse against her on 24 September 2022, that he had threatened her with job loss at the meeting on 22 March 2023 and a number of other complaints [258-274]. The grievance contained no assertion of discrimination, no reference to the Equality Act or disability although, as she said in evidence, she did then consider herself to have been disabled.5.62 The Claimant attended a Stage One grievance meeting chaired by Mr Storton, Fleet Manager London & Thames Valley, on 31 July 2023 with her union representative. Ms Jones in HR supported the process. The matter was investigated and Mr Storton ultimately decided that the grievance ought to have been dismissed, which he confirmed in writing on 14 August [299- 302].5.63 Given the Claimant’s continued inability to fulfil the terms of her contract, Mr Storton recommended that she be considered for redeployment, but he also stated she could not have demanded Mr Hardy’s exclusion from her management as the relevant Head of Department. He further considered that her own conduct and the manner in which she had spoken to colleagues had potentially been inappropriate and he recommended that an investigating officer ought to have been appointed to consider the matter. Flexible working application5.64 As discussed above, the possibility of making a flexible working application was considered at the welfare meeting on 19 June 2023. Two days later, on the 21st, the Claimant submitted a formal application, together with a suggested shift pattern [269].5.65 The example pattern that she proposed worked on a 3 week rolling basis, using a combination of late, early and one night shift, and with some planning shifts. Some of the shifts were very long (over 9 hours), and longer than the Respondent’s standard pattern. The fact that one night shift was included appeared to fly in the face of her GP and OH advice.5.66 In retrospect, Ms White considered that “the flexible working request route was not perhaps the best route” (paragraph 8 of her statement). In her evidence, she was prepared to concede that it had been ‘incorrect’. We did not consider that the process by which an examination of the feasibility of the Claimant’s return to work took place was an important issue. What was more important was the fact that an examination did take place. The Claimant had the benefit of a formal route of appeal under the flexible working process, which she used, which she would not have done if there was simply a meeting to discuss potential changes as reasonable adjustments in a more amorphous way.5.67 A meeting was convened to discuss her flexible working application with Mr Winter on 10 July. The Claimant was accompanied by her trade union representative [270-4]. She explained that her working pattern did not give her a good work/life balance, that her health had been poor since having covid in 2022 and she needed more rest days to recover as a result of fatigue. Mr Winter agreed to consider the Claimant’s request.5.68 On 24 July, having done so, he wrote to her to indicate that her proposed work pattern could not have been accommodated. He did, however, propose two alternatives which might have been [284]. Over a rolling 4 week period, option 2 included 5 early shifts, 8 days, 3 nights and 3 planning shifts, a total of 19 shifts totalling an average of 37 hrs/ week. It was noteworthy that the proposed Saturday night shift was 3 hours short of the normal 12 hour shift pattern but even that option would have required some additional cover.5.69 Mr Hardy and HR (Ms Rogers) had provided their views on the proposed shifts but, ultimately, Mr Winter was left to make the decision.5.70 The Claimant rejected those proposals on 27 July [282-3]. She said that she preferred option 2 “but with some further amendments”. Her counterproposal, however, was for 17 shifts including no early shifts, 5 days, 3 nights and 9 planning shifts. None of her nights were to have been worked on Thursday, Friday or Saturday.5.71 The Tribunal did not consider that the counterproposal could fairly have been described as an ‘amendment’ to option 2. It was a wholesale redrawing of it, which was significantly biased towards planning shifts between 9 am and 6 pm. Only 7 shifts were left unchanged from the ‘option 2’ proposal. Three night shifts remained, contrary to the advice of her GP and OH.5.72 Mr Winter considered that far too many gaps remained and that the only option left would have been to recruit someone else to cover them. He was particularly concerned that none of the night shifts which were offered were on Thursdays, Fridays or Saturdays, the busiest times. Mr Hardy described those shifts as ‘business critical’ because engineering works upset the timetables, because of the need for more catering staff on Saturdays and because of the desire amongst the work force to take leave and/or have time off. The Claimant subsequently asserted that nobody had explained to her that the business had regarded those shifts are so important. It appeared to have been widely understood that that was the case. Mr Bailey, for example, said in evidence that ‘anyone who worked in the department would know that those three days were key’. We ultimately concluded that the Claimant’s evidence on that issue was disingenuous. We noted that she had not pushed back against the assertion when it was subsequently made in meetings (for example, on 16 November 2023 [351]).5.73 The Claimant’s alternative pattern was rejected on 4 August on the basis of an inability to reorganise the remaining staff patterns around hers, the insufficient shifts (as opposed to planning) that were proposed within her pattern and the additional costs that would have been incurred [296-7].5.74 The Claimant appealed against the outcome on 17 August [303-4]. She supplied a further draft shift pattern in support which also contained no weekend nights and 60% were the easiest daytime planning shifts over core hours, which did not quite map onto the Respondent’s scheduled shifts (9:00 am to 6:00 pm as against 8:00 am to 4:00 pm). She attended a meeting on 5 October with Mr Berryman, Head of Network Delivery and Performance Improvement. Mr Berryman had been a Train Service Controller and had worked in the Control Room on rosters himself in the past. Mr Winter was interviewed as part of his examination of the appeal. He dismissed the Claimant’s appeal by letter dated 17 October 2023 [337- 8].5.75 It was important to note that, in all of the Claimant’s proposals, she wished to continue working her full time hours, with the same pay, which included her Flexibility Allowance of 30% [206]. That remained her position throughout (see, in particular, her comments in February 2024 [436] and [444]).5.76 In summary, drawing from all of the evidence that we received, we considered that the flexible working application was rejected for the following reasons; - Pattern; the Claimant’s original proposal did not accord with the Respondent’s shift patterns (a 3 week rolling pattern, as against a 7 week one [269]). The Respondent’s counter-proposal was even an amendment to it (4 weeks [284]); - Weekend night work; one of the main sticking points was the Claimant’s desire to have avoided Thursday, Friday and Saturday night shifts, the Respondent’s busiest, ‘business critical’ period. The Claimant’s last proposal was for now some weekend work, but no nights [283]; - Gaps; gaps in the Claimant’s proposals would have had to have been filled by others and/or at cost. Given the stress assessment of the pattern as it stood and the views expressed by colleagues, if they have been asked to sacrifice more rest days or pick up more night shifts, the threshold would have been breached and staff may have been lost, as Mr Hardy had said in his statement (paragraphs 95-6) and Mr Bailey in oral evidence. The gaps would therefore have had to have been filled by new recruits and/or by overtime. Funding constraints made that impossible. The two ‘as required’ part-time employees (Ms StuartKelso and Ms Whatley) were not thought to have been trained on the Catering desk and, whilst Mr Winter accepted that they could have notionally been used to cover some of the gaps created by the Claimant’s proposals, their time was already filled; - OH advice; the Claimant’s proposals appeared to go against the Respondent’s own OH advice and, more specifically, her fit notes. That would have left it in an invidious position if, for example, she had suffered a further decline and/or breakdown whilst working shifts which were contra-indicated. Grievance; appeals at Stages Two and Three5.77 The Claimant appealed the Stage One grievance outcome on 23 August 2023. A Stage Two hearing was chaired by Mr Davies, Head of Driver Training, on 22 September 2023 [315-323], supported by Ms Brady in HR. Mr Davies rejected the appeal by letter dated 13 October [330-4].5.78 The Claimant then submitted a Stage Three grievance on 19 October and Mr Bailey, Head of Project Operations, chaired that meeting on 20 November. He was supported by Ms Langsbury from HR [352-7].5.79 Mr Bailey, who had previously been a Regional Driver Manager with a lot of operational knowledge and understanding of rostering, dismissed the appeal by letter dated 31 January 2024 [428-435]. In his witness statement, he went to great lengths to explain why the various alternatives to the Claimant’s normal shifts were either unworkable or too costly (paragraph 24 to 33). In evidence, he said that the term lengths and the night work would have not passed the stress testing. The Claimant’s reduced number of night shifts, in particular, was crucial. Night work, he said ‘was when the magic happened’. He also spent time to consider the Claimant’s proposals with Mr Hardy and Mr Winter.5.80 Nevertheless, in recognition of the fact that the flexible working application had not been strictly necessary, an award of back pay was made in compensation [435].5.81 In evidence, he was clear in his view that, if he had considered that the decisions around her shifts and potential adjustments to them had been wrong, he could have made recommendations to have had then reversed. Process Review and late 20235.82 In September 2023 and in light the continuing concerns that the Claimant was raising about the handling of her absence, her flexible working application and grievance, an Employee Relations Manager, Ms Beech, was appointed to review the processes. Having done so, she presented her findings to the Claimant in a letter on 29 September; she found that none of the processes and the manner in which the decisions and/or recommendations had been reached had been flawed [326-7].5.83 On 31 October, Mr Winter invited the Claimant to a further welfare meeting [339]. The invitation letter indicated that a number of options were to have been discussed, including redeployment.5.84 That meeting took place on 16 November [344-351] and Mr Winter found it “very difficult” (paragraph 57 of his witness statement). The Claimant was not prepared to talk about redeployment. She merely directed Mr Winter to return her to her role [348]; “you need to facilitate me back and Martin Hardy will have to swallow a hard pill”. The Tribunal considered that she was stubborn, argumentative, accusatorial and challenging during the meeting. It was unpleasant. So unpleasant, in fact, that Mr Winter discussed his further involvement in her case with HR and Mr Bailey, having consulted his GP about his own health. Mr Bailey took over. Mr Bailey gave evidence as to the extent to which Mr Winter’s involvement in the case had affected his mental health.5.85 In late December 2023 and into January 2024, the Claimant continued to send a significant amount of correspondence to a range of people. In particular, she contacted a number of people within the payroll department and, on one occasion, she contacted the control room. Many of her communications were blunt and rude ([371], [373-390] and [392-403]).5.86 On 9 January, Ms White, Head of Employee Relations, stepped in to indicate that she would act as the formal point of contact going forward, with Mr Hawker taking over from Mr Bailey in respect of her welfare [415].5.87 Mr Hawker’s initial introduction to her went unanswered [420-1] but, eventually, she did make contact and a welfare meeting took place on 6 February in the company of her union representative, Mr Valentine and her husband [436-448]. Mr Hawker knew little of the detailed background and took the meeting as an opportunity to allow the Claimant to describe her position in her own words. She discussed her disabilities, her grievances, concerns and her adverse views of Mr Hardy and Mr Winter. Mr Hawker gained permission to see her OH reports. He described her behaviour during the meeting as having been “animated, agitated, loud and frustrated.”5.88 Mr Hawker then obtained evidence from the grievance process, discussed the issues with Mr Winter and explored the possibility of the adjustments that the Claimant had raised with him. Ms White was clear in her evidence that Mr Hawker had had the power to review and revisit the issues around her shift patterns if he had considered that the wrong decisions had been made. Having reviewed the position, however, he was ‘aligned with the decision’ (paragraph 20 of his statement).5.89 The Claimant then began to question Mr Hawker’s motives. When he attempted to set up a further meeting, she raised questions about what he had been doing before she was prepared to agree [828-831]. Although he attempted to assuage her concerns [824-5], the Claimant took the decision that his role as her welfare manager was a ‘conflict of interest’ because he was “determined to illegitimately go down the redeployment tunnel”. She informed him that he was “no longer [to] have any say in how my case moves forward” [527]. A further meeting did not take place. Potential redeployment and subsequent dismissal5.90 A further OH report on 15 December 2023 reiterated the advice given in May [361-370], including continued advice against night shift work [366]; “Long shifts will be more fatiguing to her than someone who is ‘well’ and shifting her body clock around a night shift will be disruptive and cause greater fatigue”.5.91 Rather ominously perhaps, it also included the following; “Sarah has been fighting her situation for many months-hence the decision to submit an ET1. Once such action has occurred it is all too easy to become consumed with the fight and this creates embitterment towards the employer. It is often very difficult to come back from such a situation.”5.92 The following month, Ms White tried to start to explore the possibility of getting the Claimant back into some role, albeit on a temporary basis, as she was then on zero pay. A customer facing role at Reading was initially mooted. It was not offered. It was raised as something that could have been discussed and explored [409]. The Claimant, however, considered it to have been wholly inappropriate and accused Ms White of not understanding the law [406]. She also had the following to say in respect of Mr Hardy and Mr Winter; “If Martin Hardy and Stephen Winter are too cowardice to face me after all of their unlawful behaviour and understand they are 100% to blame for how they have managed the relationship with me, it is solely their responsibility to fix it. Until the tribunal determines their fate, I would expect them to work day and night, rolling out the red carpet for me to ensure I am treated lawfully and correctly in a job I thrive in.” Instead, she made another attempt at having her CDM shifts changed, but in a non-specific way and without reference to any night work [449]. Whilst she said then that was “not adverse [sic] to considering re-deployment”, that had not been her stance before, nor was it her stance subsequently.5.93 In or around February 2024, her access to the Genius and Integrale rostering systems were removed [455-6]. Access was normally blocked automatically after non-use of 28 days. For reasons which were not explained in detail, the automatic shut-off was overridden in the Claimant’s case but, by February 2024, she had then been off work for nearly a year. She also had her access to ACMS blocked (a system which showed all staff personal details). As she was not in work, she did not need access and the Respondent did not consider it to have been appropriate for access to a raft of personal information to have been left open. She still had access to her work email account and Sharepoint.5.94 A further OH appointment was booked on 5 April 2024 following the Claimant’s representative’s indication that she had been unfit to attend a further meeting. Ms White was concerned that the appointment had been some time away and she asked OH whether an earlier appointment could have been found. On 12 March, Ms White was informed by OH that the Claimant could not attend 5 April appointment. Another date had to be found [502].5.95 That OH review produced a report from Dr Gemmell dated 11 April which broadly accorded with previous reports, although there was acceptance of some deterioration in her overall condition [513-5]. Dr Gemmell ended [515]; “I genuinely feel occupational health has no current role to play in this case.”5.96 Following a further review of the Claimant’s position by an independent manager, Mr Ogilvie-White [531-4], the Respondent’s Senior Safety Manager in July 2024, another attempt at redeployment was made. Ms Hancock told us that such reviews were ‘rare’. Again, Ms White was clear in her evidence that Mr Ogilvie-White had had the power to revisit and change the decision in respect of the Claimant’s flexible working outcome if he had considered that it had been wrong.5.97 Mr Barber, Regional On-Train Manager, supported by Ms Hancock, Head of Organisational Development and Culture, were appointed to manage the redeployment process, with Ms Morgan, Regional Station Manager, appointed as the Claimant’s new contact and welfare manager. Redeployment was being considered under the Respondent’s Long Term Sickness Policy, part of the Managing for Attendance Policy (‘MFA’) ([928] and [984-6]). The mechanics of the main part of the MFA Policy related to persistent short-term absences.5.98 The Claimant was informed of Mr Barber’s and Ms Hancock’s roles on 2 August [544]. In a robust reply, she stated that, “in the eyes of the law, at this moment in time [this] is not seen as a redeployment case unfortunately”. She wanted to have been returned to her substantive post with reasonable adjustments. She said that she was not going to have been “bullied and threatened into redeployment prematurely” and that, until she got what she wanted “my case will be on hold” [543].5.99 The Respondent asserted this “continued a pattern that had been ongoing since at least October 2023, namely, the Claimant’s consistent refusal to discuss the potential for redeployment…. believing that she should instead be returned to her Crew Delivery Manager role, despite the Respondent having considered on multiple occasions by multiple different managers that this was not feasible” (paragraph 35 of the response to the Third Claim [153]). We too considered that the Claimant’s approach had been one of implacable intransigence and entitlement.5.100 Ms Hancock emailed the Claimant on 9 August and held the Respondent’s line in relation to redeployment [543]. Not getting what she wanted and in order to ‘take herself out of a toxic situation’, the Claimant then indicated that she would not “therefore be contactable via email/post until I am fit and ready” [551]. She stated then that her disability and mental health were “at the worst it’s ever been”. All of her dealings at that point had been via her personal work email address.5.101 Following a further period of sickness absence covered by a fit note (which then indicated that the Claimant was unfit for any sort or work, irrespective of restrictions [552]), on 15 October 2024, Ms Hancock tried again to invite her to a meeting on 1 November to “progress [her] return to work” and “to discuss redeployment in line with .. policies and procedures” [557-8].5.102 Once a further fit note had been received, the meeting was rescheduled to 13 November by an email dated 25 October 2024 which would have been after the end of her new fit note on 10 November [556].5.103 Ms Hancock stated that she did not receive an out of office reply or bounce back to her email of 25 October. She had received one to the 15 October email (which had said that the email box was not being monitored) but, within a few hours, Ms Morgan received an email forwarded from the Claimant, via her husband, in which she gave permission for him to conduct communications on her behalf [554-5]. Eight minutes later, he forwarded a leave request from her [575-6]. The coincidence of those two emails following so closely the request email of 15 October led the Tribunal to have grave misgivings about the Claimant’s assertion that she did not see the invitation.5.104 It was important to note that, at other times when the Claimant’s out of office response had been used, she had continued to read and send emails ([488] and [494-501]).5.105 A chasing letter about the 13 November letter was emailed and also posted to her in similar terms on 8 November [559-561]. She was reminded of her right of representation and was warned that one of the outcomes could have been her dismissal [561].5.106 The letter was received late because the Claimant had moved house and it had to be redirected. The address used was that listed on the Respondent’s HR People Data System (‘PDS’). Mr Winter had been advised of her new address but would not have been able to access PDS to amend it. The Claimant had access and could have amended it herself. Indeed, The Respondent’s systems showed that she did access PDS on three occasions in late October, but did not update her address [794-5]. She had specifically requested that the other system in broader use, ACMS, ought not to have been amended with her new address [1046A]. She had been aware of previous problems with letters going astray from her old address, but had not taken steps to rectify it (see, further, [294]). The Claimant had not provided any other means of contact, for example, a mobile phone, landline number or alternative email address.5.107 The Claimant asserted in evidence that Ms Hancock had deliberately used the wrong address so that the letter would have gone astray. We considered that the evidence, taken as a whole, rather suggested that it had been the Claimant who had done all that she could to have avoided being contacted (see, also, [508], [545-6] and [851]).5.108 As stated above, Mr Roach had forwarded the Claimant’s request for annual leave between 11 November and 31 December 2024 [575-6]. That request was ultimately granted on 6 November, with the exception of 13 November. That date was refused because of the scheduled meeting which was expressly referred to [570-2]. Mr Roach responded and stated that the Claimant had a sick note which indicated that she was “unfit to attend any work related meetings or activities until further notice” [571]. No note had been supplied to suggest that she could not have attended, nor had he indicated that they had previously been unaware of the scheduled meeting on 13 November, which was due to have taken place after the end of her then current fit note. Mr Roach was reminded that 13 November remained unapproved as a leave date and he was referred to Ms Hancock’s separate communication about the date [570]. In reply, he stated that he was “flabbergasted” by the response and that his wife would not have been attending because her ill-health would ‘always have superseded’ it [569- 570].5.109 By 13 November, therefore, the Respondent understood that the Claimant had received an invitation to the meeting (by email, letter or both), that Mr Roach was aware that one had been scheduled, that she was not covered by any fit note and that her request for leave had not been granted on that day because of the meeting. The tracking of the letter was checked, but was not available [591]. She did not attend. The meeting nevertheless went ahead [562-5].5.110 Mr Barber and Ms Hancock were in a difficult position; they had not been given permission to see the Claimant’s fit notes and/or access her OH records. They knew, as Ms Hancock put it, that she was ‘not well’, but they did not know what ‘not well’ meant. From Ms Hancock’s dealings with her and from Mr Ogilvie-White’s review [531-4], what they knew was; - That Mr Ogilvie-White had seen the entire OH file, the flexible working application and appeal documentation, the grievance documents and Mr Hawker’s review [531]; - That he agreed with the decisions that had been made by those 6 managers in relation to the “feasibility and reasonableness of the particular adjustments you have requested” [531]; - That the Claimant had been off sick since 4 April 2023 with an unknown condition (the words ‘chronic fatigue syndrome’ had been redacted from Mr Ogilvie-White’s letter in accordance with the Claimant’s wishes) [532-3]; - That Mr Ogilvie-White had recommended redeployment [533] but that she had not wished to discuss it [531]. If that position continued, he indicated that the “health capability process will be triggered” [533].5.111 Mr Barber and Ms Hancock looked at redeployment opportunities nevertheless and the vacancy lists were considered, despite her not having shown any interest in them previously. At that point, none were considered to have been suitable. Many involved the type of shiftwork that she asserted that she could not have done. As a consequence of all of the above, Mr Barber therefore determined that there was no option other than the termination of her employment on the grounds of ill-health.5.112 The Claimant asserted that the Respondent ought to have obtained up-todate OH advice before taking such a decision. In cross-examination, she accepted that her condition had deteriorated over the relevant period and that her fit notes, from August, had indicated that she was unfit for any work, not just work with restrictions. We noted the numerous attempts that had been made to obtain her consent for disclosure of her OH file without success (see [399], [406], [541] and 543]) and that she had not given Mr Barber and Ms Hancock consent for them to access her OH records or her fit notes (paragraph 5 of Ms Hancock’s statement). No change in her health condition had been notified to them.5.113 The following day (14 November), having received the letter of 8 November, Mr Roach said that he spoke to Ms Hancock over the phone and encouraged her to ‘disregard’ the previous day’s meeting because of his wife’s continuing illness. He asserted that she had agreed. She denied that during her evidence and her notes, R4, reflected no such concession. We considered that it would have been most unlikely for her to have agreed to ‘disregard’ a hearing at which a manager had taken a decision to dismiss without reference to him.5.114 Mr Barber wrote to the Claimant on 29 November confirming the decision to dismiss [578-586]. Because it was an ill health severance situation, the Claimant was entitled to certain payments which needed to be confirmed and approved. That was explained to her. Following their approval on 8 January, she was informed that the dismissal date was 31 January 2025 [634-5]. She was paid 3 months in lieu of notice in the sum of £9,170 and her outstanding holiday entitlement for the rest of 2025 (£3,515.70).5.115 At the point of her dismissal, neither Mr Barber nor Ms Hancock had seen the Claimant’s grievance or her first claim. They did not know what complaints had been raised. Ms Hancock stated that she had not seen any of the emails referred to within paragraph 8.2.3 of the List of Issues. She was not expressly challenged on those points in cross examination (paragraph 44 of her statement).5.116 The letter was not acknowledged and, in response to an email from Ms Hancock on 29 November, Mr Roach advised that Mr Barber’s letter was not to have been opened and destroyed. He confirmed in evidence that he had directed the postman to return the letter (paragraph 23 of his statement). In evidence, the Claimant stated that it had inappropriate to have sent such a letter as she had been on annual leave. She asserted that it ought not to have been sent until January, when her leave had ended. We noted that she had received the letter of 8 November during her leave which had been opened. The Claimant had been off for over a year, whether on sickness absence or leave, her decision to decline a letter from her employer following what she had then known had been an important meeting, was a surprising decision.5.117 Mr Roach asked for a meeting to discuss the Claimant’s position and pay, which was arranged for 16 January 2025. He said that he considered it to have been a rescheduled welfare meeting on 13 November (paragraph 38 of his witness statement). That belief was tested in cross-examination. We considered that that belief lacked foundation.5.118 Mr Slimmon, Head of People Services, met with Mr Roach on 16 January and provided him with another copy of the dismissal letter of 29 November.5.119 A fit note covering the period between 8 November 2024 and 2 February 2025 was not provided to the Respondent until mid-January 2025 [729]. Pay issues5.120 Running alongside the redeployment issue, there was a pay issue which Mr Roach pursued on his wife’s behalf, initially with Ms Hancock. He sent a significant number of emails and messages and, between 13 and 20 December, she received 10. He also messaged Ms Marshall in the payroll department on numerous occasions and Ms Hancock found his overall approach to have been ‘verging on harassment’ (paragraph 50 of her witness statement and see [636-642], [645] and [647-652]).5.121 At the point of the Claimant’s dismissal, there was an error in the ill health severance calculation. Ms Hancock, who did not normally handle such things, accepted that she had mistakenly left out some of the Claimant’s annual leave [634-5] then, in a revised calculation, other omissions were made [668]. Ms Hancock’s responses from the Claimant in relation to the issue had been threatening; Ms Hancock was told that she was to have been ‘cross-examined by her barrister in court’ and that her ‘defence’ was to have been ‘torn apart’ [714]. The Claimant stood by her assertions in evidence; she said that she still believed Ms Hancock’s mistake had been deliberate and had amounted to fraud.5.122 The matter was subsequently corrected [654], [657], [667-670]. Final severance details were sent on 31 January [694-5 & 717] and the Claimant accepted in evidence that that letter had contained correct payment details. We did not consider that Ms Hancock’s mistake had been deliberate and/or an attempt to perpetrate a fraud. In our judgment, that was a gross misinterpretation of an error.5.123 The Claimant told the Tribunal in evidence that her wages and/or notice pay claims concerned 2 days of annual leave that were not paid at the end of her employment. She accepted, however, that her holiday pay for the full year of 2025 was paid upon dismissal, even though she had not been entitled to it in contractual terms. At the point of her dismissal, she had only worked a fraction of the year. She nevertheless claimed that the calculation had been wrong. Appeal and grievance5.124 The Claimant, through Mr Roach, appealed against her dismissal on 22 January 2025 [701-710]. She also raised a grievance against Ms Hancock and Mr Barber in which she sought to have them disciplined and dismissed [699-700]. She said that her appeal “will form my grievance as it sets out all of the points I’d like to raise” [699].5.125 Given the overlap, the Respondent indicated that the matters were to have been dealt with together. The Grievance Policy specifically indicated that grievances about disciplinary action ought to have been raised by way of an appeal under the Disciplinary Procedure [1007-1016, at 1014]. In cross examination, the Claimant accepted that her appeal and grievance raised the same points, but she still felt that different processes ought to have been used.5.126 The Claimant then requested a referral to OH before she would attend any appeal meeting. Since she had indicated that she was fit to attend such a meeting, no referral was made at that point.5.127 Before the appeal hearing, Ms Hartley, Head of Network Strategy and HS2 who was allocated to deal with it, considered all of the available paperwork. The Claimant was then invited to a meeting on 12 February [742-3] at which Ms Hartley went through the lengthy grounds of appeal and related grievance issues. She said that the Claimant was “very emotional and angry”. A further meeting took place on 25 February when the process which had commenced on 12th was continued [754-5]. Ms Hartley said that meeting was even more heated.5.128 Ms Hartley then set about undertaking further work; she spoke to 10 members of staff who had been involved in the issues up to that point (those people identified in paragraph 25 (c) of her statement) and she reviewed all of the meeting minutes, letters and other relevant documents. The Claimant was offered a referral to OH, which she would not engage with.5.129 Having considered all matters, Ms Hartley wrote to the Claimant on 23 May. In her lengthy letter over 24 pages, all of her points were rejected for the reasons set out within it, as explained in paragraph 27 of her statement [855-878]. Comparators5.130 Evidence was heard about the 4 alleged non-disabled comparators referred to by the Claimant for the purposes of her direct discrimination claim (paragraph 17 (a) of the Claimant’s statement and paragraph 112 and following of Mr Hardy’s);5.130.1 Ryan Southam; The Claimant alleged that Mr Southam was paid a full CDM salary ‘without working the actual job’. He was moved into the role of Crew Delivery Manager Operations Interface and only worked core business hours. If that was true, it seemed to the Tribunal that it might have been regarded as a redeployment, which the Claimant had opposed to. Mr Hardy, who we considered had had a much better understanding of the nature of Mr Southam’s role, told us that he had temporarily carried out alternative duties as a development opportunity to assist in his application for the position of Team Leader, but that he still undertook desk rostering work, working night shifts and weekends, whilst also developing training packages. No extra cost was incurred;5.130.2 Jackie Uhlyk; It was alleged that Ms Uhlyk was permitted to avoid all 7 night shifts, which had to be covered by others at a cost to the business. Mr Hardy accepted that, as a result of her undergoing a significant operation in January 2024 and, due to symptoms leading up to it, she was temporarily allowed to not work night shifts. That had been against her own wishes and she returned to that work as soon as she was able. She still worked her contractual hours. An end point to her condition following a hysterectomy was anticipated and ultimately achieved. She had a phased return to work, returned to her core shifts and was promoted to another role thereafter. In evidence, the Claimant could not challenge the Respondent’s proposition; that she worked nights, that she swapped some shifts with a colleague and reciprocated, that she had no extra rest days;5.130.3 Alison Herbert; The Claimant claimed that Ms Herbert had been accommodated by Mr Hardy at a larger cost than £22,000, plus a 30% allowance, because she predominantly worked Monday to Friday between 8:00 am and 4:00 pm on planning work, leaving her other shifts uncovered. She was alleged to have worked 3 night shifts on average out of 7. The arrangement was long-term following her maternity leave in 2021. Mr Hardy told the Tribunal that, as a result of very delicate, sudden and serious domestic situation which had involved the police and social services, she was moved off the main shift pattern. Others within the Team covered her shifts. However, she was trained across all 4 desks and was used wherever cover was needed. She also worked three nights a week over a long weekend, when demand was highest. She still worked shifts which mapped onto the base rota’s start and finish times and did her three nights. Apart from the reason for the changes, the Claimant largely accepted the other aspects of Mr Hardy’s propositions. Mr Hardy was tested in cross-examination by Mr Roach on those issues and he stood firm. There had been no additional costs incurred by the changes in Ms Herbert’s case and it had started at a time, pre-Covid, when the worst of the financial constraints had not applied. She has been out of the main shift pattern for 5 years but her restrictions are coming to an end;5.130.4 Ellie Ware; According to the Claimant, Ms Ware was removed from her normal shift pattern and deemed ‘as required’ staff. She was trained up at a cost of £47,000 Mr Hardy agreed that, for a short period, Ms Ware was temporarily accommodated on shifts to allow her to adjust to new medication. She only missed one week of night shifts over a 12 week period. The Claimant did not challenge Mr England’s propositions in that regard. She was simply not aware.5.131 At the very end of cross examination, the Claimant was asked whether she still retained some of the Respondent’s property (a mobile telephone, a security pass and a travel pass). She confirmed that she did. She had understood that she was going to have been granted a travel pass after the end of her employment. In evidence, she said that she would only return the items if the travel pass was granted to her. Her approach to that issue reflected much of her evidence in other respects; it was badly misjudged.
Introduction
[6]Relevant legal principles and conclusions6.1 The issues in this case were considered in line with the List of Issues [176- 188] and the paragraph references below related to the paragraph numbers within it. Jurisdiction (time); relevant legal test6.2 Under section 123 of the Equality Act 2010, a complaint of discrimination may not have been brought after the end of the period of three months starting with the date of the act to which the complaint related (s. 123 (1)(a)). For the purposes of interpreting the section, conduct extending over a period was to have been treated as done at the end of the period (s. 123 (3)(a)) and the provision covered the maintenance of a continuing policy or state of affairs, as well as a continuing course of discriminatory conduct.6.3 It was generally regarded that there were 3 types of claim that fell to be analysed through the prism of s. 123;(i) Claims involving one off acts of discrimination, in which, even if there had been continuing effects, time started to run at the date of the act itself (as in Moore Stephens LLP and others-v-Parr UKEAT/0238/20/OO, a claim about the continuing consequences of a one-off act);(ii) Claims involving a discriminatory rule or policy which caused certain decisions to have been made from time to time. In such a case, there was generally a sufficient link between the decisions to have enabled them to have been joined as a course of conduct (e.g. Barclays Bank-vKapur [1991] IRLR 136);(iii) A series of discriminatory acts. It was not always easy to discern the line between a continuing policy and a discriminatory act which caused continuing effects. In Hendricks-v-Metropolitan Police Commissioner [2002] EWCA Civ 1686, the Court of Appeal established that the correct test was whether the acts complained of were linked such that there was evidence of a continuing discriminatory state of affairs. One relevant feature was whether or not the acts were said to have been perpetrated by the same person (Aziz-v-FDA [2010] EWCA Civ 304 and CLFIS (UK) Ltd-v-Reynolds [2015] IRLR 562 (CA)), although the issue was not necessarily conclusive (paragraph 50 (7) of E-v-X, L and Z UKEAT/0079/20). It was important to bear in mind that the conduct needed to have been discriminatory over the relevant period. Acts linked as having occurred against the same ‘factual setting’ would not necessarily have met the test (Allen-v-Worcestershire Health and Care NHS Trust [2024] EAT 40).6.4 In a claim under s.20, time started to run for the purposes of s.123 of the Act from the date upon which an employee should reasonably have expected an employer to have made the adjustments contended for (Matuszowicz-v-Kingston upon Hull City Council [2005] IRLR 288, Abertawe Bro Morgannwg University Local Health Board-v-Morgan [2018] EWCA 640 and Fernandes-v-DWP [2023] EAT 114), which may not have been the same date as the date upon which the duty to make the adjustments first arose. There were two questions; when the employer ought to have made them and when the employee ought to have considered that they ought to have been made. A failure to make reasonable adjustments was usually more readily recognisable as an omission, not an act according to Matuszowicz. Limitation did not run from the inception of the provision, criterion or practice but, rather, from the date upon which a respondent took a decision not to adjust it (Morgan). The focus was then to have been upon s. 123 (4) (Kerr-v-Fife Council UKEATS/022/20). Time does not start to run, however, in a case in which a respondent agreed to keep the question of adjustments open and/or under review (Job Centre Plus-v-Jamil UKEAT/0097/13).6.5 Should complaints have been brought outside the three month period, it was nevertheless possible for a claimant to pursue them if the tribunal considered that it was just and equitable to extend time (s. 123 (1)(b)). There was no presumption in favour of an extension. The onus remained on a claimant to prove that it was just and equitable to extend time and, if she advanced no case in support of an extension, she would not have been entitled to one (Rathakrishnan-v-Pizza Express [2016] ICR 23 and Moray Hamilton-v-Fife Council UKEATS/0006/20/SS). The Tribunal’s discretion was wide and there was no rule of law that extensions were only to have been granted in an exceptional case (Robertson-v-Bexley College [2003] EWCA Civ 576, Caston-v-Chief Constable of Lincolnshire Police [2009] EWCA Civ 1298 and Jones-v-Secretary of State for Health and Social Care [2024] EAT 2).6.6 Time limits were not just targets, they were ‘limits’ and were generally enforced strictly. A good reason for an extension generally had to be demonstrated, albeit that the absence of one would not necessarily have been determinative. A tribunal was not bound to refuse an extension in the absence of an explanation having been provided for the delay, but such an absence was undoubtedly a relevant consideration (ABMU-v-Morgan [2018] IRLR 1050 (CA), Concentrix CVG Ltd-v-Obi [2022] EAT 149 and Owen-vNetwork Rail [2023] EAT 106). Nevertheless, there must have been some material upon which a tribunal could have exercised its discretion in a claimant’s favour (Habinteg Housing Association-v-Holleron EAT 0274/14 and Edomobi-v-La Retraite RC Girls School EAT 0180/16, per Laing J); “In neither case, in my judgment, is there material on which the ET can exercise its discretion to extend time. If there is no explanation for the delay, it is hard to see how the supposedly strong merits of a claim can rescue a Claimant from the consequences of any delay.”6.7 Tribunals had been encouraged to consider the factors listed within s. 33 of the Limitation Act 1980 (the Keeble factors), although it was not necessary to use the section as a framework for the approach (Adedeji-v-University Hospital Birmingham NHS Foundation Trust [2021] EWCA Civ 23 and Oluwafunto Dada-v-The Scottish Ministers [2026] EAT 13); “The best approach for a tribunal in considering the exercise of the discretion under section 123(1)(b) is to assess all the factors which it considers relevant to the question of whether it is just and equitable to extend time, including, in particular, the length of, and the reasons for, the delay in presenting the claim”.6.8 We considered the length of and reasons for the delay, the extent to which the Claimant had sought professional help and the extent to which information, which she said that had needed, was not known by her until much later and the degree to which the Respondent should have been blamed for any late disclosure in that respect. We also had to consider whether the Claimant had delayed once she knew all of the relevant information. It was thought that the touchstone, however, was the issue of prejudice; whether and to what extent the delay has caused prejudice to either side. Although certainly relevant, it was by means a determining factor (see Laing J in Miller-v-Ministry of Justice UKEAT/0003/15 at paragraph 13). Jurisdiction (time); discussion and conclusions6.9 Mr England did not approach this aspect of the case by forensically analysing when each allegation had been brought forward through each of the three claims.6.10 It seemed to the Tribunal that the only real problem for the Claimant concerned the following single acts which were said to have occurred before 30 May 2023 (more than three months before the first claim, plus any ACAS extension) and were therefore out of time on their face; paragraphs 4.1.1,5.1.1 to 5.1.11 (and therefore all of 6.1.1, save the last one relating to 5.1.12). They had all occurred before the commencement of the Claimant’s long term sickness absence in April 2023 and all related to Mr Hardy. There was then a significant gap of 9 months between the act described in paragraphs 5.1.11 and that in 5.1.12.6.11 Those events were out of time. They could not be said to have been part of a continuing course of conduct given the gap and the fact that different perpetrators were said to have been involved. They were not part of a continuing discriminatory rule or policy, nor were they part of a series of similar acts which continued up to and beyond 30 May 2023.6.12 Ought the Claimant to have been granted an extension of time in order to have pursued them? There was nothing within her witness statement which explained her delay. Indeed, in paragraph 35, it was suggested that those matters had been included by way of background only. We noted that, when she had issued a grievance about Mr Hardy’s alleged conduct in June 2023, the first time that the complaints were raised, she had had union representation and support. The grievance itself did not contain express allegations of discrimination and/or breach of the Equality Act.6.13 The alleged comments which sat at the heart of the complaints were brief, momentary interactions which were not all clearly remembered by those who gave evidence about them, even by those who gave evidence that we considered to have been the most reliable in the circumstances. Mr Hardy was right when he told us that they had occurred a long time ago. Even the Claimant’s grievance did not map onto the allegations which were pursued within the claim (see, for example, paragraph 5.23 above).6.14 The Claimant had stated in her evidence that she had received solicitors’ advice at or around the time of the first claim had been issued. There was no suggestion that her disability had prevented her from issuing the claim sooner. She was, of course, pursuing all sorts of internal processes at the same time.6.15 The Tribunal determined that it was not just and equitable for time to have been extended for those matters (paragraphs 4.1.1, 5.1.1 to 5.1.11, and therefore all of 6.1.1, save the last one relating to 5.1.12). Limitation periods existed for a reason and the Claimant had not demonstrated that there was any reason not to have issued a claim in time in respect of those matters. Irrespective of the Tribunal’s factual findings, those matters were dismissed. Reasonable adjustments; relevant legal test6.16 We bore in mind the guidance in the case of Environment Agency-v-Rowan [2008] IRLR 20 and others in relation to the correct manner that we should have approached ss. 20 and 21.6.17 First, we had to identify whether and to what extent the Respondent had applied provisions, criteria and/or practices (the ‘PCPs’). Those words were to have been given their ordinary English meaning. They did not equate to ‘act’ or ‘decision’. In this case, there was not much argument about that issue.6.18 In relation to the second limb of the test, it had to be remembered that a claimant needed to demonstrate that she was caused a substantial disadvantage when compared with those not disabled. It was not sufficient that the disadvantage was merely some disadvantage when viewed generally. It needed to have been one which was substantial when viewed in comparison with persons who were not disabled, which was an objective question (Copal Castings-v-Hinton [2005] UKEAT 0903/04 and Sheikholeslami-v-University of Edinburgh [2018] 1090, EAT).6.19 Further, in terms of the adjustments themselves, it was necessary for them to have been both reasonable and to have operated so as to have avoided the disadvantage. There did not have to have been a certainty that the disadvantage would have been removed or alleviated by the adjustment. A real prospect that it would have had that effect would have been sufficient (Romec-v-Rudham UKEAT/0067/07 and Leeds Teaching Hospital NHS Trust-v-Foster [2011] EqLR 1075). If there was no real prospect of an adjustment, however apparently reasonable, making a difference, a respondent would not have acted in breach of the section by failing to implement it (Hindmarch-v-North-East Ambulance NHS Foundation Trust [2025] EAT 87).6.20 It can have been reasonable for an employer to have made an adjustment even if a claimant did not suggest it. That underlined the importance for an employer to consult and make appropriate enquiries and assessments.6.21 We have referred to the statutory Code of Practice and, specifically, paragraph 6 relating to the duty under ss. 20 and 21. ‘Reasonable’ in this context meant just that; practical and/or realistic, not just possible. Reasonable adjustments; discussion and conclusions6.22 The PCPs in paragraph 3.2 were largely admitted by the Respondent. The only aspect which was not was the second limb of 3.2.2. In reality, 3.2.2 seemed to add little as a PCP. Any employee in any role clearly had to be fit for that role. The other question was whether the proposed adjustments were advanced as adjustments to3.2.1 or 3.2.2. It appeared to have been the former.6.23 The Respondent accepted that the Claimant had been caused a substantial disadvantage in relation to 3.2.1 (3.3). It did not accept any substantial disadvantage in relation to the second limb of3.2.2 (see 3.5 and paragraph 82 of R5). Without knowing what alternative work was envisaged, it was difficult to understand how the Claimant advanced that point in isolation.6.24 At the heart of this case was the Claimant’s claim that her CDM role was capable of having been adjusted to have enabled her to have continued in it. That case found its voice through the adjustments advanced in paragraph 3.6. Before coming to them individually, in general terms the Tribunal had found that a significant number of managers had considered whether it was possible to have accommodated the Claimant, with her restrictions, in the CDM role; Mr Hardy initially (his view having been crystalised on 3 April 2023), Mr Winter through the flexible working application, Mr Berryman through the flexible working appeal, Mr Storton, Mr Davies and Mr Bailey through the three stages of the grievance, Mr Hawker in early 2024 when he reviewed the Claimant’s position and had the power to change it and Mr Ogilvie-White when he undertook his review in July 2024. Whilst it is right to say that Mr Barber and Ms Hancock did not specifically address the issue at the point of dismissal (believing that others had done so comprehensively before them), Ms Hartley did when she considered the dismissal appeal and grievance. They had all reached the same conclusion for broadly similar reasons. The following factors simply did not work in combination (see, in particular, paragraphs 24 to 33 of Mr Bailey’s statement);6.24.1 The Claimant’s OH and GP restrictions; an initial period off sick had not enabled the Claimant to better manage her symptoms [335]. When she returned to work with restrictions, OH had advised against night shifts or long shifts ([254], [361-370] and [513-5]). Her GP had been rather more prescriptive; she was not to have worked nights or more than three consecutive days in the calendar week [222-3]. That position never improved. In fact, it deteriorated, with her having been deemed wholly unfit from October 2024 ([551], [552], [729] and others). The Claimant had proposed a night shift and long shifts in her initial flexible working application, she had discussed doing 2 nights “at a push” in the meeting in which the application was discussed [271] and 3 nights in her ‘amended’ option 2 [283]. Whilst the Respondent’s option 2 proposal had contained 3 as well, it was a balance between its business needs and the Claimant’s medical restrictions. We wondered how, in reality, that was workable as it really workable in the long term when such shifts had been contraindicated by the medical evidence. Given the medical advice, we were surprised that any had been contemplated;6.24.2 The nature of the work; there was much compelling evidence that the CDMs’ work was fast paced, intense and stressful, as summarised in paragraph 74 of the Respondent’s Closing Submissions, R5;6.24.3 The pressure on cost; the Respondent was not in a position to hire additional cover and/or to cover the gaps left by the Claimant with overtime;6.24.4 Pressure on others; the Claimant’s colleagues had covered some of her shifts in the short-term during her initial phased return. They were not prepared to have done so in the long term, nor was the Respondent able or willing to force them to do so given, first, that some had indicated an intention to resign if that happened and, secondly, that the shifts were already at the top end of the RSSB stress assessment scale. The alternatives that were proposed by the Claimant during the flexible working process would have continued to put pressure on others as a result of the gaps that were left ([269] and [283]). In particular, the lack of weekend night work, over what known to have been the business critical period, would have had the greatest impact. The bias towards the easier planning shifts during core hours would have had a knock-on effect on others too; there would have been less respite for them. The part-time, ‘as required’ staff already had work allocated to them and were not immediately deployable to the Catering desk;6.24.5 An alternative, tailor-made shift pattern for the Claimant would have sat outside the rest of the desk’s rosters and would have required infilling as above.6.25 As to the adjustments contended for in paragraph3.6.1 to 3.6.7, they all concerned amendments and/or departures from the Respondent’s shift patterns and the PCP in 3.2.1 in one way or another; 3.6.1 This adjustment would not have alleviated or removed the substantial disadvantage in the long term. The Respondent was not averse to a phased return to work. The Claimant had had one before. But she was not seeking a temporary phased return in the traditional sense (gradual, reduced hours, leading to full service). She wanted a permanent adjustment to her rosters which was unworkable for the reasons set out above;3.6.2 See 3.6.1 above;3.6.3 Although the Claimant’s statement and/or other evidence did not refer to it in terms, this appeared to have been the counterproposal that she made with her flexible working appeal [305]. That proposal was not put to any of the Respondent’s witnesses but, as with her ‘amended’ version of option 2, it lacked night work on Thursdays, Fridays or Saturdays and 60% of the shifts were planning. Mr Berryman considered it to have been unworkable in the same way that others had considered her other proposals to have been. It did not appear to have accounted for the GP/OH advice;3.6.4 It was not clear what ‘more equally’ meant. To the extent that it meant something different from the proposals that the Claimant had made during the flexible working process, that was never explained. If her request was for her to have had equal amount of rest time and shift time, she would have needed to have worked reduced hours, which she had not wished to do, or significantly compressed hours, which would have been outside the medical advice;3.6.5 All of the witnesses stated that CDMs took their breaks when they could, during lulls in the work and between calls. It was not going to have been possible or practical for concrete breaks to have been scheduled into work which was reactive, fluid and demand driven;3.6.6 The nature of any ‘alternative duties’ was not specified or explained. The extent to which other duties existed for CDMs outside of the work that they fulfilled on rostering and planning was never described and/or explored in the evidence. The Tribunal did not even know if they existed, subject to what has been said below about ‘comparators’;3.6.7 This did not seem to have been an adjustment to the PCP in 3.2.1. It appeared to have been a proposed adjustment to the MFA Policy. The extent to which a ‘trial’ may have differed from a phased return was not clear. To that extent, see 3.6.1 and 3.6.2 above. In any event, what was the Respondent to have ‘trialled’? It could not have put the Claimant onto her old shifts in light of the OH and GP advice and restrictions. She did not accept the options put to her by Mr Winter during the flexible working process and the Respondent could not accept her counterproposals for the reasons set out above;3.6.8 It was somewhat surprising to have found that proposed adjustment amongst those within the List of Issues given the Claimant’s intransigent opposition to the notion of redeployment. Needless to say, in our judgment, the Respondent had tried very hard to explore redeployment opportunities. One matter which the Claimant did explore in cross-examination with the Respondent’s witnesses was the possibility of her having been trained for other desks. In a nutshell, the Respondent’s case was that she was already on the least stressful desk. She had been moved from HSS because she had not had a happy time, following feedback from Ms Uhlyk. Even on the Catering desk, there were clearly still problems (Mr Hardy’s references to Ms Standerwick’s evidence);3.6.9 This was not an adjustment to any of the PCPs advanced in the case. It was, perhaps, relevant to the complaint of unfair dismissal and/or the question of justification under s. 15. The Claimant had not been willing to share such information with those who made the decision to dismiss in any event;3.6.10 See 3.6.9 above.6.26 Finally, it was important to note that it was not the Claimant’s case that she ought to have been allowed back on part-time hours on an ongoing basis, as was so often the case in claims of this sort. The Claimant wanted to work her full time hours and all of her proposals reflected that. She did not want to have been financially worse off [444].6.27 As stated above, none of the adjustments specifically identified within paragraph 3.6 appeared to have been adjustments to the second PCP (3.2.2). Was it really to have been argued that the Claimant ought to have allowed to attend work unfit? That was never her case. It seemed that what she was trying to say was that, with the restrictions recommended by her GP and/or OH, her role ought to have been amended, which was really the thrust of her case in relation to other PCP (3.2.1).6.28 The position of the ‘comparators’ was relevant here. For the reasons explained below, they were not comparators in the traditional sense in respect of the complaints under s. 13. Rather, they were advanced as comparison examples of how others had allegedly had adjustments made for them, thereby demonstrating how the adjustments contended for by the Claimant could have been made.6.29 Having considered the position of each of the four individuals, the Tribunal did not consider that they illustrated that the Respondent was capable of having made the adjustments contended for in the Claimant’s case; Mr Southam continued to undertake desk rostering work, night shifts and weekend work. No additional costs were incurred in the extra work which he took on as a development opportunity. Ms Uhlyk’s adjustments were temporary and had probably arisen from a disability. Ms Ware’s had been short-term as well.6.30 It was only Ms Herbert’s issues which had required accommodation over a longer period. She was, perhaps, the closest to the Claimant in the sense that she came off the main roster for a period, but she had far greater flexibility as she had been trained across all four desks and she still worked three nights over a long weekend. Although her accommodations were provided for longer than had been anticipated initially, her domestic situation was fluid and some endpoint at some stage was always expected. It has subsequently been achieved.6.31 For all of the reasons stated above, therefore, the Respondent did not fail to make reasonable adjustments in this case as alleged. Discrimination arising from disability; relevant legal test6.32 When considering a complaint under s. 15 of the Act, we had to consider whether the employee had been ‘treated unfavourably because of something arising in consequence of her disability’. There needed to have been, first, ‘something’ which arose in consequence of the disability, which was an objective question and, secondly, unfavourable treatment which was suffered because of that ‘something’ (Basildon and Thurrock NHS-vWeerasinghe UKEAT/0397/14). That second question was subjective, in the sense that it required us to examine the employer’s mind in order to establish whether the treatment had been by reason of its attitude or reaction to the ‘something’ (Dunn-v-Secretary of State for Justice [2019] IRLR 298, CA). Although an employer must have had knowledge (actual or imputed) of the disability, there was no requirement for it to have been aware that the relevant ‘something’ had arisen from the disability (City of York-v-Grosset 2018] IRLR 746, CA). Knowledge of the disability was not in issue here (see paragraph 4.6 of the List of Issues).6.33 Although there needed to have been some causal connection between the ‘something’ and the disability, it only needed to have been loose and there might have been several links in the causative chain (Hall-v-Chief Constable of West Yorkshire Police UKEAT/0057/15 and iForce Ltd-v-Wood UKEAT/0167/18/DA). It need not have been the only reason for the treatment; it must have been a significant cause, in the sense of ‘more than trivial’ (Pnaiser-v-NHS England [2016] IRLR 170 and Bodis-v-Lindfield Christian Care Home Ltd [2024] EAT 65), but the statutory wording (‘in consequence’) imported a looser test than ‘caused by’ (Sheikholeslami-vUniversity of Edinburgh UKEATS/0014/17 and Scott-v-Kenton Schools Academy Trust UKEAT/0031/19/DA).6.34 In IPC Media-v-Millar [2013] IRLR 707, the EAT stressed the need to focus upon the mind of the putative discriminator. Whether conscious or unconscious, the motive for the unfavourable treatment claim needed to have been “something arising in consequence of” the employee's disability.6.35 No comparator was needed. ‘Unfavourable’ treatment did not equate to ‘less favourable treatment’ or ‘detriment’. It had to be measured objectively and it required a tribunal to consider whether a claimant had been subjected to something that was adverse rather than something that was beneficial. The test was not met simply because a claimant thought that the treatment could have been more advantageous (Williams-v-Trustees of Swansea University Pension and Assurance Scheme [2019] ICR 230, SC).6.36 As with other claims under the Equality Act, we approached this part of the case by applying the test in Igen-v-Wong [2005] EWCA Civ 142 to the provisions concerning the burden of proof, s. 136 (2) and (3). In order to trigger the reversal of the burden, it needed to be shown by the Claimant, either directly or by reasonable inference, that a prohibited factor may or could have been the reason for the treatment alleged. More than a difference in treatment or status and a difference in protected characteristic needed to be shown before the burden would shift. The evidence needed to have been of a different quality, but a claimant did not need to have to find positive evidence that the treatment had been on the alleged prohibited ground; evidence from which reasonable inferences could be drawn might have sufficed. Unreasonable treatment of itself was generally of little helpful relevance when considering the test. The treatment ought to have been connected to the protected characteristic, although unexplained, unreasonable conduct could be sufficient to shift the burden in some cases (as in Law Society-v-Bahl [2003] IRLR 640]).6.37 If the Claimant was able to demonstrate the essential elements of the test within s. 15 (1)(a), the Respondent had a defence if it could have shown that the treatment was “a proportionate means of achieving a legitimate aim”. (s. 15 (1)(b)).6.38 Proportionality in that context meant ‘reasonably necessary and appropriate’ and the issue required us to objectively balance the measure that was taken against the needs of a respondent based upon an analysis of its working practices and wider business considerations (Pill LJ in Hensman-v-MoD UKEAT/0067/14/DM, at paragraphs 42-3). Just because a different, less discriminatory measure might have been adopted which may have achieved the same aim, did not necessarily render it impossible to justify the step that was taken, but it was factor to have been considered (see The EHRC Employment Code, Homer-v-West Yorkshire Police [2012] IRLR 601 at paragraph 25 and Kapenova-v-Department of Health [2014] ICR 884, EAT). The test was not as loose, however, as the range of reasonable responses test (Scott-v-Kenton Academy Schools UKEAT/0031/19/DA, paragraph 58).6.39 Although many of the cases on justification arose under s.19, different considerations applied because a tribunal was then examining the rationale for a PCP and its application to a group, rather than a single, unfavourable act (Stott-v-Ralli [2022] IRLR 126).6.40 The following key principles were set out by Lady Hale in Homer v Chief Constable of West Yorkshire Police [2012] IRLR 601 [22-24]: (i) To be proportionate, a measure had to have been both an appropriate means of achieving a legitimate aim and (reasonably) necessary in order to have done so; (ii) If the measure went further than was (reasonably) necessary to achieve the aim, it will have been disproportionate; (iii) An assessment of justification included a comparison of the impact of the act upon the claimant as against the importance of the aim to the employer.6.41 In doing so, the Supreme Court expressly applied the judgment of the Court of Appeal in Hardys & Hansons plc-v-Lax [2005] IRLR 726. It was made clear in that case too that the latitude given to an employer when considering the objective justification defence was not akin to the band of reasonable responses test in an unfair dismissal claim.6.42 The main principles of the objective justification test were usefully summarised by HHJ Eady QC (as she then was) in City of Oxford Bus Services Ltd t/a Oxford Bus Company v Harvey [2018] (UKEAT/0171/18) in the context of a claim under s. 19, which we also considered.6.43 In a case of long term sickness absence and a consequential dismissal, an employer was generally required to produce evidence of the impact of the Claimant’s continued absence upon its undertaking in order to justify dismissal. Sometimes, depending upon the role of the employee and the size and nature of the business, that might have been obvious. Sometimes, it might not and specific evidence would have been needed (O’Brien-vBolton St Catherine’s Academy [2017] ICR 737 and Gray-v-University of Portsmouth [2021] 6 WLUK 702). Discrimination arising from disability; discussion and conclusions6.44 The Tribunal reached the following conclusions on the six allegations; - Paragraph 4.1.1; This allegation was out of time (see paragraph 6.15 above). Even if we wrong on that issue, the Tribunal accepted that the Claimant was ‘forced’ to go on sick leave on 3 April only in the sense that it was against her will and, whilst that was both objectively adverse to her and had arisen from her disability, the decision was justified. At the end of the Claimant’s phased return to work following a significant period of absence, Mr Hardy was suddenly faced with fit notes that indicated that she ought not to have worked nights or more than three consecutive days in a week ([222-3] and [233]). The Claimant herself was complaining of dizzy spells, numbness and of being “very fatigued” [244]. The picture appeared inconsistent with the OH position which had most recently supported her phased return to work. The Claimant had night shifts coming up and, in accordance with the Respondent’s usual approach, she was considered to have been unfit for the work that she was contracted to do (see paragraph 5.54 above). That was, at least initially, a short-term decision, pending a further OH report. The decision accorded with the legitimate aim identified within paragraph 4.4 of the List and, as an initial short-term measure, was a reasonable, sensible and proportionate means of ensuring the Claimant’s health and safety against the continued need to run the rostering service as designed; - Paragraphs 4.1.2, 4.1.4 and 4.1.5; These paragraphs were capable of having been taken together because they encapsulated the Respondent’s approach to the Claimant once it had obtained the further OH opinion in May 2023. Whilst the matter complained of in paragraph 4.1.2 was objectively disadvantageous, the Tribunal could not accept that the Respondent’s encouragement for the Claimant to have made a flexible working application (4.1.4) and its subsequent attempts to redeploy her had been (4.1.5). As stated in paragraph 5.66 above, there were positive advantages for her application to have been considered under the structure provided by the flexible working process (4.1.4). Also, considering her inability to continue in the CDM shift pattern, redeployment ought to have been considered as a positive and potentially employment saving step (4.1.5). As to 4.1.2 (and 4.1.4 and 4.1.5 in any event), the Tribunal considered that the Respondent’s approach to the situation had been justified. Its primary legitimate aim was the management of operational efficiency of its rostering service through the application of the shift pattern which organised the complicated, fast paced, stressful work between the four desks. The Tribunal could well understand how it would not have been feasible for the patterns to have been changed for one individual, secondly, how it would not have been manageable for the Claimant to have worked the shifts which she had proposed (both in terms of cost and the knock-on effect to her colleagues) and, thirdly, how it would have been safe for her to have worked in excess of the hours and/or days recommended by her GP and/or OH. Ultimately, the Claimant did not advance any practical solution which would have allowed her return to work as a CDM. The alternative shift patterns that she had proposed ([269], [283] and [305]) did not work. Significant numbers of senior managers agreed. No other alternatives were conceived as means of having achieved the Respondent’s legitimate aims; - Paragraph 4.1.3; The Claimant did not explain this part of her claim. It was not covered in her witness statement and was not invited to discuss it in cross examination. There was, accordingly, no evidence of such a detriment having been experienced; - Paragraph 4.1.6; The Respondent accepted that the Claimant’s dismissal had been a detriment which had arisen from the Claimant’s disability. The focus, again, was on justification. To that extent, much of what has been said in respect of paragraphs 4.1.2, 4.1.4 and 4.1.5 above applied equally here. At the point of the Claimant’s dismissal, her GP’s advice had changed and she was deemed incapable of undertaking any work at that point. She had then been off work since April 2023, 20 months. There was no prospect in her returning to work and, given the budgetary constraints on the Respondent’s headcount, she could not simply have been left ‘on the books’. There was management time and cost associated with her retention and she remained entitled to paid annual leave. Since she would not engage in any discussion around redeployment, the Respondent asked the rhetorical question; what else could it have done? The Claimant’s answer to that question, both in evidence and through the documents, was repeatedly for her to have been returned to her substantive role with adjustments. For the reasons set out in detail above and elsewhere, that was not practically feasible, safe or desirable. The additional aim that was added to paragraph 4.4 was, in our judgment, legitimate but it probably was not a necessary addition to the paragraph. What was already within 4.4 was enough to have justified the ultimate decision to dismiss as the only feasible and/or proportionate step that was possible by December 2024 (see the case of O’Brien above).6.45 Mr England invited a Chagger finding. In other words, he invited the Tribunal to find that, to the extent to which the Claimant’s dismissal would have occurred in any event under the principal in Polkey (paragraph 13.2.3), any equivalent act of discrimination would have to have been approached in the same way in accordance with the principle in Abbey National-v-Chagger [2009] IRLR 86 (see paragraph 101 to 103 of R5). To that extent, see paragraph 6.89 below. Harassment; relevant legal test6.46 Not only did the conduct have to have been ‘unwanted’ in order to have qualified under s. 26, but it also had to have been ‘related to’ a protected characteristic, which was a broader test than the ‘because of’ or the ‘on the grounds of’ tests in other parts of the Act (EHRC Code paragraph 7.9 and Bakkali-v-Greater Manchester Buses [2018] UKEAT/0176/17). In Tees Esk Wear Valleys NHS Foundation Trust-v-Aslam [2020] IRLR 495, the EAT pointed out that there had to have been “some feature or features of the factual matrix identified by the Tribunal, which properly [led] it to the conclusion that the conduct in question [was] related to the particular characteristic in question..”. In Carozzi-v-University of Hertfordshire [2024] EAT 169, it was said that the term “related to” was designed to have a relatively broad meaning and that s. 26 was “designed to be pragmatic, balancing the interests of employees against those of their employer and colleagues who may be accused of harassment.”. A person obviously had to have known of the conduct in order to have been able to complain of harassment; Greasley-v-Royal Mail [2023] EAT 86.6.47 As to causation, we reminded ourselves of the test set out in the case of Pemberton-v-Inwood [2018] EWCA Civ 564. In order to decide whether any conduct falling within sub-paragraph (1) (a) had either of the prescribed effects under sub-paragraph (1) (b), a tribunal had to consider both whether the victim perceived the conduct as having had the relevant effect (the subjective question) and (by reason of sub-section (4) (c)) whether it was reasonable for the conduct to have been regarded as having that effect (the objective question). A tribunal also had to take into account all of the other circumstances (s. 26 (4)(b)). The relevance of the subjective question was that, if the Claimant had not perceived the conduct to have had the relevant effect, then the conduct should not be found to have had that effect. The relevance of the objective question was that, if it was not reasonable for the conduct to have been regarded as having had that effect, then it should not be found to have done so.6.48 It was important to remember that the words in the statute imported treatment of a particularly bad nature. The case of Carozzi, above, was of assistance again; “Employers and employees can be expected to take greater care in how they speak and behave at work than they might in their social life. While it is in no-one’s interest that colleagues should constantly be walking on egg-shells, it is also important that proper protection is provided against violation of dignity at work.” Employees were expected to have at least some degree of robustness. It was said in Grant-v-HM Land Registry [2011] IRLR 748, CA that “Tribunals must not cheapen the significance of these words. They are important to prevent less trivial acts causing minor upset being caught by the concept of harassment.” See, also, similar dicta from the EAT in Betsi Cadwaladr Health Board-v-Hughes UKEAT/0179/13/JOJ. Harassment; discussion and conclusions6.49 The complaints within paragraphs 5.1.1 to 5.1.11 had been dealt with above; those allegations were out of time and it was not just and equitable to extend time. We considered them against the s. 26 test in any event.6.50 Further and in any event; 5.1.1 The Claimant’s account of this meeting had been rejected (see paragraph 5.23 above). Further and in any event, given that the Claimant did not regard herself as disabled at that point and did not have her diagnosis of CFS until approximately 16 months later, it was difficult to understand how that allegation, and those which followed in late 2022 in the first half of 2023 had been ‘related to’ disability;5.1.2 See 5.1.1 and paragraphs 5.28 to 5.31 above;5.1.3 See 5.1.1, 5.1.2 and paragraphs 5.33 to 5.34 above;5.1.4 The Tribunal had accepted Mr Winter’s description of this meeting (paragraph 5.38 above), which had not described specific comments aimed at the Claimant, nor had it contained evidence of treatment which had been disability related. The Claimant had accepted in cross examination that the meeting had had nothing to do with her disability;5.1.5 That allegation had not been accepted as a matter of fact (see paragraph 5.40 above);5.1.6 The Claimant had not been in the department in January 2022, no particular act was identified and nothing of that sort had been raised in her grievance. In evidence, the Claimant referred to the only incident having been on 24 September 2022, which was outside the issue as it had been framed and that was dealt with above;5.1.7 That allegation had not been accepted as a matter of fact (see paragraph 5.41 above);5.1.8 That allegation had not been accepted as a matter of fact (see paragraphs 5.45 to 5.47 above). It was also previously raised as one related to race in the first claim [17];5.1.9 As in 5.1.8 above;5.1.10 As set out in paragraph 5.48 above, the Tribunal accepted that Mr Hardy had waited for the end of her shift to give her a letter. He had not been there to check her work. It was not clear how this conduct was said to have ‘related to’ any disability;5.1.11 In addition to the comments in 5.1.10 above, it was not clear how the handing of a letter to an employee and the holding of a quick ‘chat’ could have been objectively described as harassment;5.1.12 It was clear that the Claimant had received a number of emails which had sought her engagement on the issue of redeployment. It was also clear that she had regarded them as having been harassing and that the reason for them had broadly related to her disability in the sense that the Respondent considered that redeployment was necessary because of her inability to continue work as a CDM. The difficulty for the Claimant here, however, was the second Pemberton question; in the circumstances which prevailed at the time, any objective view on the invitations to discuss and engage with redeployment would have been positive, not negative, and a long way from the notion of harassment. These were simple employer/employee interactions in an attempt to secure a return to work. There was nothing within them or their tone which could properly be defined as having amounted to harassment;5.1.13 There was no significant delay. The request was made on 15 October [575-6] and the response was provided on 6 November [572]. The reason why it had taken ‘longer than anticipated’ had been the need to check the Claimant’s entitlement and how it was to have been recorded, which was not obviously ‘related to’ the Claimant’s disability;5.1.14 The failure to approve 13 November as a leave date was not an act of harassment. A meeting had already been scheduled for that date (on 25 October [557]) before the Claimant had asked for leave on 6 November. The 13 November had been chosen because it fell after the expiry of her last fit note. As in 5.1.12 above, these were simple transactional matters predominantly designed to consider redeployment opportunities, at least initially. Again, in context, the failure to approve leave on 13 November ought not to have been regarded objectively as an act of harassment;5.1.15 The Claimant’s assertion that the letter of 8 November was sent to the wrong address deliberately was rejected (see paragraph 5.107 above). The fact that it was sent during a period of annual leave did not mean that it was an act of harassment. Correspondence is frequently sent to employees during periods of holiday in our experience. The letter concerned a meeting which was due to have taken place other than during her holiday. No objective view of the allegation could result in it having been deemed an act of harassment;5.1.16 The Tribunal was uneasy about the reference to the meeting on 13 November as a ‘Welfare Meeting’ ([557-8] and [559-561]). The process which led to the Claimant’s dismissal has been considered below, but the question here was whether that label could have constituted harassment. The Claimant claims that she did not know of the letter until after the meeting (see the case Greasley above) and, although was still possible for her to have been harassed by an alleged misdescription after the meeting, the assertion was somewhat tenuous. More fundamentally, the entire process was aimed at securing some form of redeployment opportunity for her and, as long as the consequences of a failure to do so had been set out for her, the labels to the emails or the letter were immaterial. That potential consequence was clearly set out on 8 November [561]. Further, the language of the Respondent’s Policy on long term sickness was couched in terms of ‘welfare’ (see, in particular [984- 6]). It was otherwise non-specific as how to couch a meeting in which dismissal might have been one consequence. Again, looked at objectively, this was not an act of harassment;5.1.17 These ‘process’ arguments fell to be dealt with in the same way as 5.1.16. The nature of the ‘paperwork’ which Mr Barber was supposed to have completed was not identified by the Claimant (5.1.17.1) (see paragraph 55 of R5). Mr Barber was denied the opportunity to see any of the OH material at that time by the Claimant (5.1.17.2); requests of 9 August [543-4] and 15 and 25 October and 8 November went unheeded. The final allegation (5.1.17.3) was simply a repetition of 5.1.16;5.1.18 The Claimant was not present on 13 November and cannot claim to have been harassed by the events in her absence. The Claimant’s husband (and she) had adequate warning of it on 25 October, 6 and 8 November. The failure to have seen and/or received those communications timeously that was capable of having been laid at the Respondent’s door (see paragraphs 5.103 to 5.107 above);5.1.19 On 15 October, Mr Roach indicated that he had his wife’s permission to communicate on her behalf ([554-5] and [576]). He did not then ask for her not to have been sent letters during periods of annual leave. He subsequently asserted that a letter was not going to have been received and/or opened because it had been sent whilst she was on leave, but that was not the same point (see paragraph 5.116 above). Tribunals frequently see allegations of harassment arising out of contact made with employees during periods of sick leave. On this occasion, the Claimant’s complaint concerned a period of annual leave which had not then been covered by a fit note. It concerned a meeting which was scheduled to have taken place when she was not off sick nor on leave. It was not an act of harassment;5.1.20 The act of dismissal could not, objectively, have constituted an act of harassment in the circumstances. There was force to Mr England’s submission that, if that were the case, all long-term disability dismissals would be capable of being defined in the same way (paragraph 58, R5). The act of dismissal did, however, find its voice in other complaints which the Tribunal had to address;5.1.21 The ‘inconsistencies’ were arithmetical errors which were corrected. The errors were not related to her disability nor could they objectively have been regarded as having amounted to prohibited treatment under s. 26;5.1.22 The Claimant had repeatedly ignored requests for the Respondent to gain access to relevant OH documentation before her dismissal. She then declined the offer of a further referral that was made during Ms Hartley’s consideration of her appeal (see paragraph 5.128 above). Even if proved, the act could not have been properly characterised as a breach of s. 26;5.1.23 The Respondent’s Grievance Policy specifically permitted it to have approached the grievance and appeal in that manner. It was logical and appropriate to have done so [1014]. The Claimant accepted in cross examination that the points that she had raised were, essentially, the same. That was what the correspondence had indicated in any event [599].6.51 Accordingly, the Claimant did not suffer the harassment alleged. Direct Discrimination; relevant legal test6.52 Some of the Claimant’s claims were brought under s. 13 of the Equality Act 2010. The comparison that we had to make was that which was set out within s. 23 (1). Again, we approached the case in accordance with paragraph 6.36 above. That was an analytical process, not an evidential one. Under s. 13, what we were looking for was whether there was evidence from which we could have concluded, either directly or by reasonable inference, that the Claimant had been treated less favourably than others not of her disability, because of her disability.6.53 The test within s. 136 encouraged us to ignore the Respondent’s explanation for any poor treatment until the second stage of the exercise. We were permitted to take into account its factual evidence at the first stage, but ignore explanations or evidence as to motive within it (see Madarassy-v-Nomura International plc [2007] EWCA Civ 33 and Osoba-vChief Constable of Hertfordshire [2013] EqLR 1072). At that second stage, the Respondent’s task would always have been somewhat dependent upon the strength of the inference that fell to be rebutted (Network Rail-v-GriffithsHenry [2006] IRLR 856, EAT). If the burden did shift, a respondent needed to show that the treatment was “in no sense whatsoever” because of the protected characteristic (Igen). We needed to find cogent evidence in support of the Respondent’s non-discriminatory explanation for the treatment focussing, as suggested in Bennett-v-MiTAC Europe Ltd [2022] IRLR 25, on the mind of the putative discriminator.6.54 If we had made clear findings of fact in relation to what had been allegedly discriminatory conduct, the reverse burden within the Act may have had little practical effect (per Lord Hope in Hewage-v-Grampian Health Board [2012] UKSC 37, at paragraph 32). Similarly, in a case in which the act or treatment was inherently discriminatory, the reverse burden would not have applied.6.55 When dealing with a multitude of discrimination allegations, a tribunal was permitted to go beyond the first stage of the burden of proof test and step back to look at the issue holistically and look at 'the reasons why' something happened (see Fraser-v-Leicester University UKEAT/0155/13/DM). In Shamoon-v-Royal Ulster Constabulary [2003] UKHL 11, the House of Lords considered that, in an appropriate case, it might have been appropriate to consider ‘the reason why’ something happened first, in other words, before addressing the treatment itself.6.56 As to the treatment itself, we always had to remember that the legislation did not protect against unfavourable treatment per se but less favourable treatment. Whether the treatment was less favourable was an objective question. Unreasonable treatment could not, of itself, found an inference of discrimination, but the worse the treatment, particularly if unexplained, the more possible it may have been for such an inference to have been drawn (Law Society-v-Bahl [2004] EWCA Civ 1070). Direct discrimination; discussion and conclusions6.57 The Claimant relied upon the first 12 allegations of harassment as allegations of direct discrimination in the alternative (paragraph 6.1.1). The first 11 of those were dismissed as having been out of time and/or on the basis of factual findings already made (see paragraphs 6.49 and 6.50 above). Those that were proved factually were 5.1.4 (partially) and 5.1.11. In neither of those instances did the Claimant demonstrate that the treatment had occurred in circumstances where, had she not been disabled, it would not have been. For example, in 5.1.11, we had no reason to consider that Mr Hardy would not have provided another non-disabled employee with a letter in the same manner in respect of the meeting to discuss returning to work on a phased basis.6.58 In relation to paragraph 5.1.12, the Claimant alleged that she was harassed by Mr Hawker and Ms White in the first half of 2024 in respect of redeployment, which she did not want. Whilst it might not have been harassment under s. 26 (see paragraph 6.50 above) could it have been direct discrimination in the alternative?6.59 The first problem was the question of the nature of the treatment; the Tribunal did not find that an attempt to discuss redeployment was less favourable treatment when looked at objectively in context. It was the one thing that may have saved her from dismissal at that stage. Secondly, there was no evidence that the attempt to redeploy had been on the grounds of the Claimant’s disability within the meaning of s. 13. Had she been unable to fulfil her contractual duties for reasons other than her disability (childcare responsibilities, for example), we had no reason to believe that she would have been treated any differently.6.60 The Claimant’s comparators did not assist here (paragraph 6.5). None of them had been in the same or similar positions. Ms Herbert may have been the closest, but there was no evidence about the extent to which redeployment options had been considered with her. But her position was not sufficiently similar in any event; she remained able to work under the team’s base shift pattern across all four desks and for three nights each weekend, including weekends. Although not temporary, the arrangements were known to have been finite (see paragraphs 5.130.3 and 6.30 above).6.61 The complaints of direct discrimination were dismissed. Victimisation; relevant legal test6.62 The Respondent disputed that the Claimant had performed some of the protected acts alleged;8.1.1 and the first email within 8.1.2.6.63 The wording of the legislation did not require the allegation to have been expressly made, as was recognised by the Court of Appeal in Waters v Commissioner of the Police for the Metropolis [1997] IRLR 589 at [86] (concerning a victimisation claim brought under the old Sex Discrimination Act 1975): “The allegation relied on need not state explicitly that an act of discrimination has occurred – that is clear from the words in brackets in s 4(1)(d). All that is required is that the allegation relied on should have asserted facts capable of amounting in law to an act of discrimination by an employer…” That approach was more recently confirmed in Kokomane-v-Boots Management Services Ltd [2025] EAT 38 when it was stressed that the context of the allegation or complaint had to be considered to have been able to understand whether it was to have been read as one to which the Act applied. A Tribunal ought to have asked itself what the Respondent would have understood the complaint to mean from the information provided by the Claimant as part of her complaint.6.64 The test of causation under s. 27 was similar to that under s. 13 in that it required us to consider whether the Claimant had been victimised ‘because’ she had done a protected act, but we were not to have applied the ‘but for’ test (Chief Constable of Greater Manchester Constabulary-v-Bailey [2017] EWCA Civ 425); the act had to have been an effective cause of the detriment, but it did not have to have been the principal cause. The most recent formulation of the test, in Warburton-v-Chief Constable of Northamptonshire Police [2022] EAT 42, stressed the need to focus upon the ‘reason why’ question and consider whether the protected act had been, at the very least, a significant influence on the detriment. It had to have been the act itself that caused the treatment complained of, not issues surrounding it.6.65 In order to succeed under s. 27, a claimant needed to have shown two things; that she was subjected to a detriment and, secondly, that it was because of the protected acts. We applied the ‘shifting’ burden of proof s. 136 to that test as well. Victimisation; discussion and conclusions6.66 The first of the protected acts, the Claimant’s grievance of 18 June 2023 (8.1.1) [258-261], had focused upon Mr Hardy’s alleged ‘verbal and physical threats’, but not as allegations of discrimination. Whilst it was true that she had included reference to the people who were later identified as comparators for the purposes of her s. 13 complaint, they were not referred to in that context within the grievance itself. She said that they had been treated more favourably, but did not explain why. The Claimant did not consider herself to have been disabled at the time and her CFS had not been diagnosed. In context and in the absence of references to any protected characteristic, any allegation of discrimination or the Act, the grievance was not a protected act.6.67 In relation to paragraphs8.1.2 and 8.1.3, the only protected act not conceded was the Claimant first email of 4 April 2023 [234]. The Tribunal did not consider that that had been a protected act either; there was no assertion of disability, discrimination and/or breach of any legal requirement, or reference to the Equality Act. It pre-dated the grievance and was at least 6 months before even she had received her diagnosis and recognised that she was disabled.6.68 As to the alleged detriments; - 8.2.1; This allegation was addressed in multiple manifestations above. The Tribunal did not accept that the Respondent had ‘ignored’ recommendations made by OH. To the contrary, it spent a great deal of time trying to conceive a way of accommodating them in its shift pattern. Those attempts found their focus in the flexible working application which started to be considered before any of the protected acts were committed. Its rejection was not because of the protected acts that followed; - 8.2.2; The first alleged ‘interference’ was said to have occurred in or about April 2023 (paragraph 5.55 above), but that was before any protected act had taken place. The second occurred a year later (paragraph 5.94 above) and could not properly have been described in that way. It caused no material detriment since it was an attempt to secure an earlier appointment than one which took place just 6 days after that which had been originally scheduled. It was not caused by the protected acts, nor was it suggested to have been to Ms White when she gave evidence; - 8.2.3; The Tribunal was satisfied that staff access to the Intergrale and Genius systems was normally deactivated automatically after non-use for 28 days. Her access continued for nearly a year (see paragraph 5.93 above). Her continued access was not necessary or appropriate. In the case of ACMS, it was also not appropriate as it contained significant amounts of personal data. Not only was the Tribunal satisfied that the loss of access had nothing to do with any protected act, but it wondered how the Claimant was caused a detriment since she did not need the systems whilst off sick. Her access to her work email address and the Sharepoint site continued; - 8.2.4; As with 8.2.1 above, the attempts to redeploy the Claimant were allegations raised under a number of different sections of the Act. They were not caused by the fact that she had committed protected acts. They were caused by the fact that she was not considered capable of continuing to work as a CDM because of the restrictions placed upon that work by her GP and OH and their incompatibility with the shift pattern operated on the rostering desks; - 8.2.5; There was no evidence that Mr Barber or Ms Hancock knew about the protected acts that had been conceded. Ms Hancock gave clear evidence that the Claimant’s emails of 13 July 2023 and 8 January 2024 and the details of the first claim were unknown to her at the point of dismissal. In any event, the Tribunal was satisfied that the Claimant was not dismissed because she had made protected acts, but because she was considered unable to have continued to work as a CDM and because she would not engage with the redeployment process; - 8.2.6; The Tribunal refers to the findings made in paragraph 6.50 above. For the avoidance of doubt, to the extent that any of those allegations were based upon facts which were approved, none of them were caused by the fact that the Claimant had committed the protected acts which were conceded. The driving force behind most of them was the desire to Claimant to engage with the redeployment process. Unfair dismissal; relevant legal test6.69 We reminded ourselves of the guidance in cases such as Spencer-vParagon Wallpapers [1977] ICR 301, Lynock-v-Cereal Packaging [1988] ICR 670, recently reconsidered in BS-v-Dundee City Council [2013] CSIH 91 in which the Scottish Court of Session indicated that three important matters needed to have been considered when examining issues of fairness arising from decisions to dismiss as a result of long-term illness; first, the question of whether the employer could have been expected to have waited any longer for the employee to have returned to work. Secondly, whether there had been adequate consultation with her and what, in terms of further information, that consultation had produced. Thirdly, whether reasonable steps had been taken to discover the employee's medical condition and likely prognosis.6.70 In O’Brien-v-Bolton St Catherine’s Academy [2017] ICR 737, CA, in a complaint under s. 15 of the Equality Act, it was suggested that, where the unfavourable treatment complained of was dismissal (such as for long-term sickness absence consequent on disability), the test of reasonableness in an unfair dismissal claim and the proportionality assessment under s. 15 would generally have led to the same result. Subsequent authorities have confirmed that, while it may be both undesirable and unlikely for the two statutory tests to yield a different result in a case of dismissal for longterm sickness absence, it remained possible for them to do so.6.71 In terms of the sanction of dismissal, we were not permitted to impose our own view of the appropriate sanction. Rather, we had to ask whether it fell somewhere within the band of responses available to a reasonable employer in the circumstances (Foley-v-Post Office, HSBC-v-Madden [2000] ICR 1283 and Graham-v-Secretary of State for Work and Pensions [2012] EWCA Civ 903). A tribunal had to consider, by the objective standards of the hypothetical reasonable employer, rather than by reference to its own subjective views, whether the employer had acted within a band or range of reasonable responses.6.72 Section 98 (4)(b) of the Act required us to approach the question in relation to sanction “in accordance with equity and the substantial merits of the case”. A Tribunal was entitled to find that a sanction was outside the band of reasonable responses without being accused of having taken the decision again; the “band is not infinitely wide” (Newbound-v-Thames Water [2015] EWCA Civ 677). The test was not the same as that of perversity.6.73 Procedural fairness was a central element to any assessment of the application of s. 98 (4), both under the employers’ internal processes and the ACAS Code. The tribunal’s task was to assess the fairness of the disciplinary process as a whole and where procedural deficiencies occurred at an early stage, the tribunal had to examine the subsequent events, particularly the procedural fairness and thoroughness of any appeal hearing and the open-mindedness of the decision-maker.6.74 One of the particular features of this case was Respondent’s argument that, if there had been defects in the original dismissal procedure, they had been remedied by a thorough appeal. It was not always the case that an employer had to undertake a full rehearing to achieve such a result (see Whitbread and Co plc-v-Mills [1988] ICR 776, the EAT, but then Taylor-vOCS Group Ltd [2006] ICR 1602, CA). There were many examples of cases where an appeal had ‘cured’ earlier defects in the procedure. Similarly, an unfair appeal may have rendered an otherwise fair procedure unfair (see, most recently, Milrine-v-DHL Services Ltd [2026] EAT 31).6.75 If the process adopted by the Respondent was flawed, the decision in Polkey-v-AE Dayton Services [1988] ICR 142 required a tribunal to consider the possibility that the employee would still have been dismissed even if a fair procedure had been adopted and to reduce compensation to reflect the percentage chance of that possibility. Alternatively, a tribunal might have concluded that a fair of procedure would have delayed the dismissal, in which case compensation could have been tailored to reflect the likely delay. A tribunal had to consider whether a fair procedure would have made a difference, but also what that difference might have been, if any (Singh-vGlass Express Midlands Ltd UKEAT/0071/18/DM).6.76 It was for the employer to adduce relevant evidence on the issue, although a tribunal should have regarded any relevant evidence when making the assessment. A degree of uncertainty was inevitable, but there may have been circumstances when the nature of the evidence was such as to have made a prediction so unreliable that it was unsafe to attempt to reconstruct what might have happened had a fair procedure been used. However, a tribunal should not been reluctant to undertake an examination of a Polkey issue simply because it involved some degree of speculation (Software 2000 Ltd.-v-Andrews [2007] ICR 825 and Contract Bottling Ltd-v-Cave [2014] UKEAT/0100/14). See, further, paragraph 73 of the decision in S Palv-Accenture (UK) Ltd [2026] EAT 12, in which Langstaff J’s judgment in Hillv-Governing Body of Great Tey Primary School UKEAT/0237/12/SM was cited. Unfair dismissal; discussion and conclusions6.77 As was so often the case in claims of this sort, the complaint of unfair dismissal almost appeared to have been tacked onto the discrimination elements in the List of Issues as an extra claim whereas, in reality, it was the one which gave the Tribunal most cause for thought.6.78 The Claimant’s initial dismissal occurred in circumstances which were not satisfactory. Part of the fault for that lay with the Respondent and part with the Claimant herself.6.79 We did not criticise the Respondent for the manner in which it had attempted to notify the Claimant of the meeting of 13 November. Even when sick, an employee had to be contactable, even if through third party. The Respondent reasonably believed that she was at least accessing her work email address and she had not amended her address for post on its PDS system. She was not otherwise reachable by phone, personal email or otherwise. Her husband, who had been approved to conduct correspondence on her behalf at that stage, had clearly understood that a meeting had been scheduled for 13 November.6.80 That said, the invitation to the initial meeting on 1 November gave no hint that it might have ended in her dismissal [557-8]. The next invitation to the rescheduled meeting was in the same terms [557]. Both were set up with the desire to ‘progress her return to work’ and to ‘discuss redeployment’ through a ‘welfare meeting’. It was the letter of 8 November which sought to change the complexion of the meeting [559-561]; although it was still described as a ‘welfare meeting’, one of the potential outcomes was said to have been termination [561] and, as stated above, ‘welfare’ was the language of the relevant part of the MFA Policy ([928] and [984-6]).6.81 The Tribunal could well understand why the Respondent had wanted to set up a meeting at which termination was to have been considered at that stage, but it went about its task in a somewhat confusing way. In the normal course of events, we may well have been of the view that the Claimant’s dismissal at the meeting on 13 November had been unfair. However, two things stood in the Respondent’s favour.6.82 First, any confusion which might have been created by the correspondence was not caused to the Claimant because she did not receive it as a result of her own actions. The failure to raise that point with her in cross examination was surprising (it was the Tribunal which raised it with her). Secondly and more fundamentally, the appeal that was conducted by Ms Hartley was comprehensive and thorough; it took place over two days, the Claimant engaged with it, extensive interviews were undertaken and all of the relevant documentation was reviewed. It was, in our judgment, a thorough and comprehensive re-appraisal of the Claimant’s position which remedied any unfairness leading up to it.6.83 The Claimant criticised the appeal in two respects only; first, she asserted that there was a ‘volte face’ in respect of a further OH report (paragraph 86 of her statement) and, secondly, that her grievance was dealt with at the same time.6.84 In respect of the medical position and the third requirement in the Dundee City Council case referred to in paragraph 6.69 above, it had to be remembered that Mr Barber and Ms Hancock had been denied access to the Claimant’s OH records, reports and fit notes (e.g. [399] [406-7] and [543] and, when documents were disclosed to particular individuals, access to them was restricted (e.g. [541]). They were not even allowed to know why she was ill (see paragraph 5.110 above). What could they have done in the circumstances?6.85 When it came to Ms Hartley, although the Claimant’s request for an OH referral in relation to her attendance at an appeal was not thought to have been necessary (paragraph 5.126 above), a referral was subsequently offered, but ignored by her (paragraph 5.128 above).6.86 As to the second criticism of the appeal, even with the grievance and the appeal considered together, the Claimant did not allege that aspects of either were omitted. The Claimant was not, for example, alleging that the appeal process ought to have been suspended pending the resolution of the grievance. We did not consider that that would have benefited her (see paragraph 5.125 above, in particular).6.87 Accordingly, the process which led to the Claimant’s dismissal was, ultimately fair. No breach of the ACAS Code had been identified either. Dismissal, as a sanction, fell within the band of responses available to a reasonable employer at the point which had been reached in December 2024.6.88 Even if we had been wrong in our assessment of the original decision to dismiss or the appeal, we considered that it was still a high percentage chance that the Claimant would have been dismissed in any event. She had accepted that in cross examination that, if anything, the only change in her condition towards the end of 2024 had been that it had got worse (see [551]). Her fit notes reflected that. She was not therefore capable of having returned to her CDM role. Since she would not engage in the redeployment process, it appeared that dismissal was inevitable.6.89 Similarly, following Abbey National-v-Chagger [2010] ICR 397, CA, the Tribunal was satisfied that, if any discrimination was proved in relation to the dismissal, there was a high likelihood that a non-discriminatory course would have led to the same outcome.6.90 The Tribunal did not need to reach a definitive conclusion on the precise percentage likelihood under Polkey and Chagger in view of its findings in other respects. Wrongful dismissal and unlawful deductions from wages6.91 The List of Issues raised two distinct claims of breach of contract in paragraph 10.1. In respect of paragraph 10.1.1, the Claimant established no express or implied term in relation to the alleged requirement to determine her capability. Even if a breach could have been demonstrated, it was difficult to understand the nature of the claim and/or remedy that might have been pursued. It was not explained.6.92 The complaint in paragraph 10.1.2 was, of course, an ordinary wrongful dismissal claim. The Claimant’s contract of employment entitled her to 3 months’ notice (paragraph 13.1 [210]) and she was not asserting that the payment that she ultimately received upon termination did not properly reflect that period (£11,920.94 [717]).6.93 Rather, her claim was explained during her evidence on the basis that two days of holiday pay had been omitted from the termination calculation (£5,667.28 for 31 days [717]). The problem was that she had no contractual or statutory entitlement to that money. The Respondent’s holiday year ran from January to December and she had only accrued a fraction of her annual entitlement for 2025 upon her dismissal. The rest was paid ex gratia. She could not, therefore, enforce a payment for an additional two days even if the calculation was two days short. Employment Judge Livesey Date_12 June 2026 _________