Miss A Newey v Encompass Care Organisation UK: 1401930/2024

EMPLOYMENT TRIBUNALS

Case No 1401930/2024

Between

Miss A NeweyClaimant

Encompass Care Organisation UKRespondent

Before

Employment Judge Rayner

Ms A Rumble - counsel for respondent

Date 26 January 2026

JUDGMENT

[1]Save as set out in the case management order of Employment Judge Rayner of 1 April 2025, the claimant’s application to amend her claim, by the addition of allegations in respect of a failure to make reasonable adjustments contrary to section 20 Equality Act 2010, are refused.

[2]Save as set out in the case management order of Employment Judge Rayner of 1 April 2025 the claimant’s application to amend her claim by the addition of additional claims of discrimination for a reason arising from disability, contrary to section 15 of the Equality Act 2010 are refused.

[3]The claimant’s application to amend her claim by the addition of a claim of indirect discrimination contrary to section 19 of the Equality Act 2010 is refused.

[4]The remainder of the claimant’s claims, as amended, will be heard by an Employment Tribunal sitting at Southampton on the 19,20,21,22 and 23 January 2026. Approved by Case Number: 1401930/2024 EMPLOYMENT TRIBUNALS Claimant: Miss Alison Newey Respondent: Encompass Care Organisation UK Heard at: Bristol (in public, by video) On: 8 July 2025 Before: Employment Judge C H O’Rourke Appearances For the Claimant: Mr P Hall – Claimant’s partner For the Respondent: Ms A Rumble - counsel PRELIMINARY HEARING JUDGMENT

[1]The Claimant was not disabled at the relevant time due to the impairment of Long-Covid.

[2]The Claimant’s claim of discrimination arising from disability is dismissed, upon withdrawal.

[1]The claimant was unfairly dismissed by the respondent. The basic award will be reduced by 10%.

[3]The claimant’s compensatory award will be calculated on the basis that the claimant’s employment with the respondent would have been terminated on 29 September 2024 in any event,

[4]The claim of disability discrimination is dismissed.

REASONS

[1]By a claim form presented on 15 August 2024 the claimant brought a claim of unfair dismissal. By order of Employment Judge Rayner on 1 April 2025, the claimant was given permission to amend her claim to bring a claim of disability discrimination. On 8 July 2025 the tribunal found that the claimant was not disabled by reason of long covid. The respondent admits that the claimant was, at the material times, disabled by reason of epilepsy.

[2]The claimant was employed by the respondent, at the material times, as a Team leader in a Supported Living Home known as 3 Prince of Wales Road (Prince of Wales or 3POW). The claimant had been employed in that position since March 2020 and by the organisation since 6 November 2006. The claimant contends that in March 2024 the respondent altered her duties and suspended her and commenced an investigation into her conduct which she says amounted to a breach of the implied term of trust and confidence. She resigned by letter dated 29th March 2024. She also says that the respondent failed to make reasonable adjustments for her disability of epilepsy.

[3]The respondent denies those allegations; it states that it always behaved appropriately

The issues

[4]The issues were recorded in an order following a Case Management hearing which took place on 8 July 2025.

[5]At the outset of the hearing, we went through the issues with the parties in detail. All the parties agreed that the list of issues was accurate and set out the claims that we must determine. It was agreed that within the liability section of the hearing, the tribunal would deal with questions of whether any remedy to which the claimant is entitled would be reduced because of her contributory fault or to reflect the fact that any dismissal may have occurred in any event (Polkey). Conduct of the Hearing Reasonable Adjustments

[6]The claimant is disabled by reason of epilepsy. The tribunal made a number of adjustments to accommodate that disability during the course of the hearing. It is not necessary to record those adjustments in this judgment although further particularisation can be given if either party applies within 14 days of the date when this judgment is sent to them. To assist the parties, the final day was held by video.

The evidence

[7]We were provided with a bundle of evidence running to 1358 pages. At the outset of the hearing Mr Hall did not proceed with an application for specific disclosure on the basis that the tribunal indicated that it would, if it considered it appropriate, be willing to draw adverse inferences from any failure by the respondent to disclose relevant documents.

[8]We heard evidence from the claimant and Mr Hall and for the respondent we heard froma. Mr Hallett, Operations Manager, who made the decision to suspend the claimant,

b. Ms Garside, Chief Operating officer,

c. Ms Anderson, Operations Director,

[9]All job titles are stated as at the relevant time. Except where stated, references to page numbers below are to the bundle of evidence.

[10]We were also provided with an Excel spreadsheet. We were not taken to the spreadsheet in the course of the evidence or in closing submissions. No witnesses were asked questions about it. We asked Mr Anderson how we could rely on it in those circumstances and his submission was that it is evidence to support the respondent’s assertion that there was a business case for the decisions it was making. We accept that we can consider it on that basis, however we are unwilling to go any further and decide, for example, whether it shows that the claimant was performing any particular types of work at any particular time. Timetable

[11]The timetable which had been set down at the case management hearing on 8 July 2025 was discussed at the outset of the hearing and we explained to the parties the importance of sticking to it. They were able to do so. The Law Approach To Evidence

The Law

[12]In Gestmin SGPS SA v Credit Suisse (UK) Ltd, Leggatt J gave the following helpful guidance Evidence Based on Recollection [16] While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony. One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other people's memories are unreliable and believe our memories to be more faithful than they are. Two common (and related) errors are to suppose:(1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and

(2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate. [17] Underlying both these errors is a faulty model of memory as a mental record which is fixed at the time of experience of an event and then fades (more or less slowly) over time. In fact, psychological research has demonstrated that memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is true even of socalled 'flashbulb' memories, that is memories of experiencing or learning of a particularly shocking or traumatic event. (The very description 'flashbulb' memory is in fact misleading, reflecting as it does the misconception that memory operates like a camera or other device that makes a fixed record of an experience.) External information can intrude into a witness's memory, as can his or her own thoughts and beliefs, and both can cause dramatic changes in recollection. Events can come to be recalled as memories which did not happen at all or which happened to someone else (referred to in the literature as a failure of source memory) … [22] In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. ... Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.

[13]We have approached the evidence in that way, whilst bearing in mind that in an employment context it is likely there are less documents than there would be in a commercial case. The Relevant Law on Unfair dismissal

[14]A termination of the contract by the employee will constitute a dismissal within section 95(1)(c) Employment Rights Act 1996 if he or she is entitled to terminate it without notice, because of the employer's conduct. The Court of Appeal made clear in Western Excavating (ECC) Ltd v Sharp

[1978] IRLR 27

, it is not enough for the employee to leave merely because the employer has acted unreasonably; its conduct must amount to a breach of the contract of employment.

[15]Harvey on Industrial Relations helpfully summarises the law as follows : In order for the employee to be able to claim constructive dismissal, four conditions must be met:(1) There must be a breach of contract by the employer. This may be either an actual breach or an anticipatory breach.

(2) That breach must be sufficiently important to justify the employee resigning, or else it must be the last in a series of incidents which justify his leaving. Possibly a genuine, albeit erroneous, interpretation of the contract by the employer will not be capable of constituting a repudiation in law.

(3) He must leave in response to the breach and not for some other, unconnected reason.

(4) He must not delay too long in terminating the contract in response to the employer's breach, otherwise he may be deemed to have waived the breach and agreed to vary the contract.

[16]In this case the claimant, in respect of the breach of contract, relies upon a breach of the implied term of trust and confidence.

[17]In Malik v Bank of Credit and Commerce International SA

[1997] IRLR 462

, the term (was held to be as follows: “The employer shall not without reasonable and proper cause conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.''

[18]In Agoreyo v Lambeth London Borough Council

[2019] ICR 1572

, the Court of Appeal held: 97 An act of suspension can constitute a breach of the implied term where it, by itself or in combination with other acts or omissions, meets the test imposed by Lord Steyn, that is to say there has been conduct by the employer which:(1) destroys or seriously damages the relationship of trust and confidence; and

(2) is without reasonable and proper cause. 98 There is no test of “necessity”. Mr Allen accepts that as a matter of law but he valiantly sought to defend the approach of Foskett J on the basis that, in the circumstances of this particular case, there would have been no reasonable and proper basis for suspension unless it were necessary to suspend the claimant. I am unable to accept that submission. In my respectful view, Foskett J did fall into error in the ways suggested by Mr Glyn. First, he introduced a test of necessity where the only test is whether there was reasonable and proper cause to suspend an employee. Secondly, the test he formulated at para 21 of his judgment, which he described as setting out the “central issue” in the appeal before him, was confusing and erroneous because it used the formula “and/or”. 99 There can be no doubt that, in some cases, the act of suspension will not be reasonable and so may amount to a breach of contract. The court may consider the wider circumstances beyond the fact and manner of suspension, including events preceding the suspension and the extent to which the suspension was a “knee-jerk” reaction: see Hale LJ in Gogay v Hertfordshire County Council

[2000] IRLR703

, paras 53–58.

[19]In deciding whether the employee resigned in response or partly in response to the breach the question is whether the repudiatory breach played a substantial part in the reasons for resigning (Wright v North Ayrshire Council

[2014] ICR 77

, United First Partners Research v Carreras

[2018] EWCA Civ 323

[20]In circumstances where it is found a decision to dismiss was unfair the tribunal must consider how much compensation to award in accordance with sections 122 and 123 the Employment Rights 1996.

[21]In respect of the basic award, section 122 (2) ERA 1996 provides “Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly”

[22]It is to be noted that the employer may not discover the conduct until after the dismissal, and accordingly it may have had no influence on the decision to dismiss at all (Optikinetics Ltd v Whooley

[1999] ICR 984

[23]In respect of the compensatory award, s123 ERA 1996 provides (1)Subject to the provisions of this section and sections … , the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer. ... (6)Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.

[24]When considering section 123(6), the tribunal must consider whether the conduct was blameworthy, whether it caused or contributed to the claimant’s dismissal and whether, if so, it would be just and equitable to reduce the basic and/or compensatory awards and, if so, by how much.

[25]In Optikinetics Ltd v Whooley, it was held From the various authorities and taking into account the submissions made before us, we think that the following propositions of law emerge:(1) Before making any finding of contribution the applicant must be found guilty of culpable or blameworthy conduct. The enquiry is directed solely to his conduct and not that of the employer or others.

(2) For the purposes of s 123(6) the employee's conduct must be known to the employer at the time of the dismissal (cf. the just and equitable provision under s 123(1)) and have been a cause of the dismissal.

(3) Once blameworthy conduct causing, in whole or in part, the dismissal has been found, the tribunal must reduce the compensatory award by such proportion as it considers just and equitable. It must make a reduction. See Slack, para 31-32, per Woolf LJ, approving the approach of the EAT in Warrilow v Robert Walker Ltd

(1984) IRLR 304

, para 19.

(4) A finding of contribution under s 122(2) does not require a finding that the conduct is causatively linked to the dismissal. It may be first discovered after dismissal cf Devis v Atkins

(1977) 3 All ER 40

(1977) ICR 662

. The wording of s 122(2) grants to the Employment Tribunal a wide discretion as to whether to make any, and if so what reduction in the basic award on the grounds of the applicant's conduct.

(5) After some uncertainty, see Chaplin v H J Rawlinson Ltd

(1991) ICR 553

, it is now clear that different proportionate reductions are permissible in relation to the basic and compensatory awards - see Rao, Slack, and White.

(6) The appellate courts will rarely interfere with the Employment Tribunal's assessment of the percentage reduction for contribution. Hollier v Plysu.

[26]In Nelson v BBC the CA stated “It is necessary, however, to consider what is included in the concept of culpability or blameworthiness in this connection. The concept does not, in my view, necessarily involve any conduct of the complainant amounting to a breach of contract or a tort. It includes, no doubt, conduct of that kind. But it also includes conduct which, while not amounting to a breach of contract or a tort, is nevertheless perverse or foolish, or, if I may use the colloquialism, bloody-minded. It may also included action which, though not meriting any of those more pejorative epithets, is nevertheless unreasonable in all the circumstances. I should not, however, go as far as to say that all unreasonable conduct is necessarily culpable or blameworthy; it must depend on the degree of unreasonableness involved.” The relevant Law on Failure to Make reasonable Adjustments

[27]The following provisions of the Equality Act 2010 are relevant 20 Duty to make adjustments(1) …

(2) The duty comprises the following three requirements.

(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

(4) ... (8) A reference in section 21 or 22 or an applicable Schedule to the first, second or third requirement is to be construed in accordance with this section. … 21 Failure to comply with duty (1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments. (2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person. ... Paragraph 20 of Schedule 8 to the Equality Act 2010 provides (1) A is not subject to a duty to make reasonable adjustments if A does not know, and could not reasonably be expected to know— (a) in the case of an applicant or potential applicant, that an interested disabled person is or may be an applicant for the work in question; (b) in any case referred to in Part 2 of this Schedule, that an interested disabled person has a disability and is likely to be placed at the disadvantage referred to in the first, second or third requirement.

[28]In respect of a provision criterion or practice (PCP) in the case of Ishola v Transport for London

[2020] ICR 1204

the Court of Appeal held “In context, and having regard to the function and purpose of the PCP in the Equality Act 2010, all three words carry the connotation of a state of affairs (whether framed positively or negatively and however informal) indicating how similar cases are generally treated or how a similar case would be treated if it occurred again. It seems to me that 'practice' here connotes some form of continuum in the sense that it is the way in which things generally are or will be done. That does not mean it is necessary for the PCP or 'practice' to have been applied to anyone else in fact. Something may be a practice or done 'in practice' if it carries with it an indication that it will or would be done again in future if a hypothetical similar case arises. Like Kerr J, I consider that although a one-off decision or act can be a practice, it is not necessarily one” (paragraph 38).

[29]As submitted by Mr Anderson, the Court of Appeal in Griffiths v Secretary of State for Work and Pensions

[2016] IRLR 216

considered PCP’s in the context of the application of an entire capability policy, at para 46 it was held by Elias LJ: “There are in my view two assumptions behind the EAT’s reasoning, both of which I respectfully consider to be incorrect. The first is that the relevant PCP was the general policy itself. If that is indeed the correct formulation of the PCP, then the conclusion that the disabled are not disadvantaged by the policy itself is inevitable given the fact that special allowances can be made for them. It may be that this was the PCP relied upon in the Ashton case. But in my view formulating the PCP in that way fails to encapsulate why a sickness absence policy may in certain circumstances adversely affect disabled workers – or at least those whose disability leads to absences from work. Moreover, logically it means that there will be no discrimination even where an employer fails to modify the policy in any particular case. The mere existence of a discretion to modify the policy in the disabled worker’s favour would prevent discrimination arising even though the discretion is not in fact exercised and the failure to exercise it has placed the disabled person at a substantial disadvantage.”

Findings of Fact

[30]Given the length of all parties’ witness statements and the length of the bundle, it would not be in accordance with the overriding objective to attempt to determine every factual dispute between the parties. Our findings of fact are limited to those necessary in order to resolve the issues identified by the parties. Where there is a dispute between the parties which we have not resolved, it is not because we have overlooked it but because we have not considered it necessary to resolve it for the purpose of reaching our conclusion.

[31]In that context, it is perhaps worth noting that the function of an employment tribunal is not to conduct an enquiry into an employer’s business generally or the history of a person’s employment. The tribunal’s function is to resolve the particular claims which have been presented to the tribunal as clarified within the list of issues. It must resolve matters on the evidence which has been presented to it and only on that evidence.

[32]We set out our findings on general matters first, and then move on to specific findings and conclusions by reference to the list of issues. In an attempt to make the judgment more accessible we will, where necessary, set out conclusions at the same time as we set out our findings of fact. General Findings of Fact

[33]The claimant’s employment with the respondent began in about 2006. The claimant’s evidence, which we accept, is that she spent much of that time working at Prince of Wales. She became a team leader in March 2020 and initially was a team leader at Prince of Wales. That property is a supported living at home facility which houses adults with severe learning and other disabilities. The property itself is referred to as a service by the respondent. The adults with learning disabilities are referred to as residents and are tenants of the property. Many, if not all of them, lack capacity within the meaning of the Mental Capacity Act 2005. The property does not belong to the respondent. The respondent provides care for the residents. As a team leader the claimant was the most senior member of staff at the property. When the respondent was able to source a full complement of staff the claimant was supported by senior support workers and support workers. Those matters are not in dispute.

[34]There is no dispute that the claimant is disabled by reason of epilepsy. The respondent was aware of that epilepsy and for most of the claimant’s employment she suffered from nocturnal epilepsy and, as a consequence, did not work night shifts. Up until March 2024, the claimant’s epilepsy was stable and treated by medication. There is no evidence that the claimant ever drew to the respondent’s attention that her epilepsy was aggravated by stress and that stress may cause her to start having seizures during the day time as well as at night time.

[35]The claimant’s contract of employment is dated 1 October 2020 and appears at page 1237. The contract describes the claimant as being a team leader and states that her duties are as set out in the job description. It states that she may be required to undertake such duties from time to time as the respondent may reasonably require (paragraph 4.2).

[36]The job description of a team leader is set out at page 138. That is the document which was applicable to the claimant’s employment. The responsibilities can broadly be summarised as managerial and administrative duties. They do not include the provision of care to the residents.

[37]The claimant’s case is that when she was originally team leader at Prince of Wales (before 2021), she worked for 37.5 hours per week on what she described as a supernumerary duties- by which she meant administrative duties. The respondent uses the same term. Ms Anderson for the respondent was not able to comment on that assertion. It is not in dispute that at some point the claimant became team leader for a second service, Dick o’ the Banks Road, and so was team leader for both services. The claimant’s witness statement says that happened in 2021 and we accept that evidence (it not being challenged). It is accepted by the respondent that during that time, the claimant was working for 37.5 hours on supernumerary duties. 38. 37.5 hours equates to 5 shifts and at times during the course of the hearing the parties used references to “5 shifts” interchangeably with 37.5 hours.

[39]It is not in dispute that in July 2023 the claimant stopped being responsible for the second service and remained team leader only for Prince of Wales. The claimant’s case is that the number of hours that she undertook supernumerary work for did not change. The respondent’s case is that when the claimant became team leader only for Prince of Wales, she worked 18.75 supernumerary hours and 18.75 support hours. There is no suggestion that whether the claimant was working supernumerary hours or support hours there was any change to her rate of pay.

[40]We must resolve that factual dispute since the claimant’s case is that one of the repudiatory breaches of contract that she relies upon is that she was told, in March 2024, that she was to confine her supernumerary activities to 2 days per week (15 hours) with the three other days to be conducted as care shifts.

[41]At page 294 is a Team Leader Supervision Record Form from 9 November 2020. It records “Alison has four-day shifts and is working one support shift. But would be more beneficial to have five day shift to manage current pressures.” It then records that the “action” is “Alison to have five days shifts as required…”.

[42]A risk assessment was carried out during the covid pandemic and at page 316 is a section headed “Update 25/3/2021”. It records “she will not work support shift or provide direct support to the Tenants at present, she will continue to work her supernumerary shifts from 01/04/2021 she will not need to continue with phased return pattern of taking annual leave and working reduced hours…”.

[43]That is the only contemporaneous evidence which we have been referred to which gives any insight into the split of work which the claimant was required to undertake before she took on the team leader role at Dick o’ the Banks Road. The record from 9 November 2020 suggests that the general expectation was for the claimant to do 4 supernumerary (day) shifts (30 hours) and work one support shift (7.5 hours). That was changed, possibly as a reasonable adjustment, during the covid pandemic to allow the claimant to work five supernumerary shifts.

[44]There is no documentation showing that the claimant was ever told that she would return to the pattern of four supernumerary shifts and one support shift. As we have said, it is not in dispute that when the claimant was team leader of both properties she worked 37.5 hours per week on supernumerary duties.

[45]Ms Anderson states that when the claimant started working exclusively at Prince of Wales in July 2023, the claimant was required to work 18.75 support hours. However, she gives no evidence that the claimant was ever told that. She refers to page 1255 which is an email from Luke Stockley, then operations director, to Sarah Cooke, then line manager for the claimant, in which she states: Alison is on the rota for MG Monday to Friday every week, the agreement when she stepped out of 5 DoB was that she would cover half her hours as support, the other half supernumerary. Can you address this please?

[46]There is little evidence that Ms Cooke ever did address the matter with the claimant. It is a somewhat curious feature of this case that we have not heard from Ms Cooke despite the fact that she still works for the respondent (although in a different role, that of a team leader).

[47]The respondent relies upon evidence at page 451 which is a Team Leader Supervision Record Form from 10 January 2024. It records “Alison has found the reduction of supernumerary hours can be a block at times, due to sudden or continuous additional pieces of work requiring to be completed…”. The claimant says that the reduction referred to there was only a temporary one for two shifts and denies that there was ever any change in her hours to working 50% on supernumerary tasks and 50% on care tasks.

[48]The claimant’s evidence, which we accept, is that the provision of direct care services to residents is work which would generally be done at a lower level to that of a team leader. It would be done by support workers. It is by no means unimportant work, but it is not work for which a team leader is generally employed. When Ms Anderson was asked about this point in re-examination she stated that team leaders would perform caring duties “if needed”. When asked why, she stated “because they have a duty of care and if somebody needed to go to the toilet, then you would take them to the toilet”. Whilst we accept that evidence, it is a far cry from an expectation to provide 18.75 hours direct care.

[49]We find that if there had been a radical variation to the claimant’s duties, as contended for by the respondent, so that her duties were changed from her performing wholly supernumerary work to 50% of her time being spent providing care to residents, that would have been recorded in a document which the respondent could have produced to us; or at least, we would have heard from Ms Cooke about the discussions she had had with the claimant. In the absence of such evidence, we prefer the evidence of the claimant and we find that up to March 2024, generally speaking the claimant was carrying out supernumerary work for the respondent without providing significant amounts of care to the residents.

[50]Thus, we find that the expressly agreed working pattern for the claimant, up until March 2024, was that she would work for 4 shifts on supernumerary work and one shift on support duties but that because of the variation agreed during the pandemic, she in fact worked 37.5 hours on supernumerary work. There was no significant variation to that agreement although, we accept, that in some weeks there may have been ad hoc variations.

[51]On 14 February 2024, the respondent’s managing director sent an email to Luke Stockley and Marianne Anderson stating that she wanted a meeting to discuss potential issues bubbling in “Ops”. The email includes the following statements: Luke, I need you to do a full Operations reveiw of each service to create a business portfolio that heat maps the whole lot. I need you to get in to absolutely every area and find out whats lurking in the shadows. I need you to be the absolute oracle of everything ops so that when anything is raised by any department, including your own, that you know exactly what they are talking about and can challenge, confirm, respond and defend as needed. I need you to feed me everything you know, all that i need to know, so that I can do the same in any public arena, to DC, families, CQC, the police, the press....you get my drift. … I know this is a lot, and Luke, I hate to bust out an email like this whilst your on leave but I have to get our house in order, i need us to be futureproof. Ops is everything, without Ops there is nothing driving us, I need it fully MOT'd to make sure its roadworthy. (sic, page 461).

[52]We were told, and accept, that in March 2024, Mr Stockley conducted a review at Prince of Wales. Ms Anderson describes it as a routine review. We find that to be a gloss on the true position. We find that the review was as a result of the letter of 14th February 2024. It was, on the balance of probabilities, likely to be more than a routine review and was a thorough attempt to find out areas for criticism, concern, and non-compliance (as well as positive matters).

[53]The claimant says that on 15 March 2024, Mr Stockley visited the premises and told her that her working practices would be changed. She was to confine her supernumerary activities to 2 days per week (15 hours) and the other three days would be conducted as care shifts. There is no directly contemporaneous evidence in this respect although the claimant refers to her grievance at page 614. The grievance was submitted in May 2024 and, therefore, was after the claimant’s resignation and the claimant had been, in her words, summoned, to a DBS barring referral meeting by Lisa Garside. Our interpretation of it must, therefore, take into account the fact that it is likely that the claimant would have been in a state of unhappiness with the respondent, but it is still largely contemporaneous.

[54]In that grievance, at page 620, the claimant states that she was surprised when several days before she was suspended she was informed by Mr Stockley that her supernumerary role was to be downgraded to 15 hours per week with the rest of her time being spent with care shifts with immediate effect. She says that he cited budgetary reasons.

[55]We accept that version of events. We do so partly because of the grievance and also because it is consistent with the email at page 1255 which we have already referred to and which was written as a consequence of working through budgets. Whether or not Mr Stockley believed that Ms Cooke had fully advised the claimant as to the change in her hours we do not need to decide. However, we conclude that, probably as a result of his review of Prince of Wales, he became aware that the duties which the claimant was performing had not changed and told the claimant that they would be changing with immediate effect.

[56]We accept that a change to doing care work would be a substantial change to the work which the claimant had been doing, namely spending 100% of her time on supernumerary work since 2020/21. The claimant explained to us and we accept that she had worked up to an NVQ level 5 status and care work was below the status which she had reached. We do not find that it was routine for a care leader to be carrying out three shifts of care work a week, not least because the job description makes no reference to such care work.

[57]The respondent highlights the fact that in the claimant’s witness statement, at paragraph 48, the claimant says that at the end of the conversation Mr Stockley said that the matter would be discussed further at a later date. Thus, says the respondent, any decision was not final (and it goes on to argue, therefore, that there could be no repudiatory breach). The fact that the claimant volunteers that Mr Stockley said the matter would be discussed further does not undermine her evidence that on 15 March 2024 she was told that her working practices would be changed from that date. The grievance records that the claimant had been told that the alteration would be with immediate effect and in her evidence the claimant told us that he made it clear that this is what would happen whether the claimant liked it or not. It is clear from the evidence of Ms Anderson that there was no possibility of the claimant being allowed to continue to work 37.5 hours on administrative work. Her witness statement goes to great lengths to explain why she considers that the claimant was already doing 18.75 hours on support work. She details the budgets and her rationale for the fact that the claimant should have been doing 18.75 hours on support shifts since July 2023. It is clear that the respondent’s fixed position was that the claimant was only to do 18.75 hours (or 15 hours) supernumerary work and the rest was to be support or care work. Whatever the reason for Mr Stockley saying the matters would be discussed further it was not, we find, because the respondent might be willing to change its position. The respondent has given no evidence to that effect.

[58]On 19 March 2023 the claimant was suspended. Mr Hallett gave evidence. He stated, in his witness statement, that he was giving evidence as the individual who took the decision to suspend the claimant (witness statement paragraph 2). He explained, and we accept, that in the investigation carried out by Mr Stockley certain matters had raised concern. They were that 20 Easter eggs had been acquired for Prince of Wales, Wi-Fi had been installed in the home and a printer had been installed. He stated that he, Mr Hallett and Ms Anderson were unclear as to the basis upon which those items had been acquired but they reached the conclusion that they appeared to have been acquired in breach of the data protection policy and the donations acceptance and refusal policy. He says that he, Mr Stockley and Ms Anderson agreed that it would be appropriate to suspend the claimant (which is somewhat different to his earlier statement that he was the person who took the decision to suspend, but little turns on that). In answer to questions from the tribunal he confirmed that no minutes existed of the decision when it was decided to suspend the claimant.

[59]Ms Anderson asserted that, in addition to those matters, Mr Stockley had found that an Easter event had been organised at Prince of Wales and an entertainer had been “sought” but no evidence could be found to show that appropriate checks had been made to ensure the entertainer had appropriate insurance, clearance and DBS checks.

[60]We accept that Mr Stockley did find that there were 20 Easter eggs at the home, that Wi-Fi had been installed and a printer had been installed and that an Easter event had been organised, including the invitation of an entertainer.

[61]It was put to Mr Hallett in cross examination that on the 15th and 18 March 2024, the claimant had explained to Mr Stockley her reasoning in respect of those matters. His answer was that he could not comment on that. We find, therefore, that Mr Stockley had not fully explained his findings to Mr Hallett as the person deciding to suspend the claimant (or, deciding to do so with others).

[62]The decision was made to suspend the claimant and a letter was sent by email on 19 March 2024. It stated that whilst suspended, the claimant must not enter any of the respondent’s premises without permission from the managing director, she must not discuss the matter with any other person apart from a trade union or work colleague representative (including, therefore, her partner), she must notify the respondent of any change in her address and that suspension did not indicate guilt in any way. It stated that the suspension related to allegations made against her in relation to serious insubordination and refusal to follow reasonable instructions and she had potentially breached confidentiality in relation to:• Charitable Donation process

• Installation of Wi-Fi

• Printer bought for person we support.

• Visitor on premises without vital checks – DBS – Insurance

[63]When asked what the alleged insubordination was, Ms Anderson stated that it was the failure to follow the relevant policies in circumstances where processes had not been followed before Christmas.

[64]In respect of the specific allegations, it is necessary for us to make some findings of fact. However, we must bear in mind that the claimant was not dismissed for those matters and a disciplinary hearing was never held. We accept that it was not necessary for the respondent to be confident that the allegations were accurate before the claimant could be suspended or those matters could be investigated.

[65]In respect of the charitable donation process, the claimant had sought Easter eggs in order to run an Easter egg hunt for the residents in the garden of Prince of Wales. In cross-examination Ms Anderson accepted that the claimant was following, or at least trying to follow, the correct process in that respect.

[66]In respect of the installation of Wi-Fi, Mr Hallett told us, and we accept, that “the minute we knew the Wi-Fi was in situ, we removed all our devices which might be insecure”. Subsequent investigations revealed that the housing association which owned the property had installed the wi-fi for the property’s lift line and not for general use around the house (see page 498). That was known by 11 April 2024.

[67]In respect of the printer, the claimant told us and we accept, that the printer had initially been purchased in 2020. It was intended for use by the residents and she told us, and the respondent did not challenge, that initially when the printer was purchased the respondent refused to pay for it because they asserted that it was the responsibility of the residents to pay for their own. There are a number of emails in the bundle which show that the respondent was aware of the purchase (see pages 262, 278-280). The printer had been replaced in October 2023 with money coming from the “dilapidations pot” which, it was not disputed, was a fund paid into by the residents (with the knowledge of their financial appointees and/or family) to pay for renewals. The claimant asserts, and we find it must be correct, that at the date of the suspension Mr Stockley was only aware of the fact that a printer was on the premises, he was not aware of anything to do with the October 2023 purchase. Paragraph 36 of Ms Anderson’s statement states: Luke also noted that there was a printer in the room at the top of the building but it was unclear what the purpose of this printer was. Luke explained that the printer was kept upstairs, an area of the home which was accessible to very few of the people supported within the building.

[68]Subsequently it was discovered that when the printer had been renewed in October 2023, the claimant had purchased it from her partner, Mr Hall, in circumstances where he had already purchased it but it was surplus to his requirements. It was still new and in the box but we find that it was ill-advised to spend residents’ money in that way. However, we were not taken to any policy of the respondent that informed the claimant that she should not conduct transactions in that way. It is also the case that the claimant had not completed a best interests analysis at the point when the printer was renewed. We accept that a best interests analysis should have been done at the point when the printer was renewed and a record kept of it. Just because the purchase of a printer was in the residents’ best interests in 2020 does not mean that the renewal of it was in their best interests in 2023. We accept that the claimant can be criticised for not having kept better records in respect of the October 2023 purchase. However, we do not find that the claimant or her partner gained financially from the transaction and we accept, as the claimant asserts, that she managed to obtain the printer for less than she would have had to spend at Currys for the same printer.

[69]In respect of the upcoming visitor to the premises, the person was an entertainer who would play the role of Peter Rabbit. The same person had played the role of the Grinch at the Christmas party. He was a professional entertainer. At the Christmas party the claimant had checked that he had a DBS certificate and insurance. She had not rechecked in advance of the Easter party but a phone call to the business supplying him would, we find, have assuaged any concerns in that respect.

[70]We must consider whether there was reasonable and proper cause to suspend the claimant. In his witness statement, Mr Hallett makes the bald assertions that it was appropriate to suspend the claimant as a safeguard for her to ensure that she did not continue to carry out any work contrary to Encompass policy. He states that Encompass’ usual approach is to suspend in those circumstances. He also says that Ms Newey was to be suspended to ensure the best interests of the residents were protected. However, beyond making those assertions, Mr Hallett does not give any information. He does not state what the risks were to the residents from Ms Newey being able to continue to work. He does not state what the risk to the claimant was, or what policies she was likely to breach.

[71]Analysis of Mr Hallett’s assertions shows that they do not withstand scrutiny. As a matter of fact, the claimant was not in breach of any policies in respect of the donation of the Easter eggs. It would have taken very little effort for the respondent to find that out. But even if there had been a risk that she was in breach of the policy, suspension was not required to alleviate that risk; the claimant could simply have been told not to do any more with charitable donations. The presence of the Wi-Fi presented no risk to anyone in circumstances where Mr Hallett was able to immediately remove all devices which might be insecure. In any event the suspension of the claimant made no difference to that risk. The simple presence of a printer did not suggest any real risk of danger to the residents and it did not suggest that they may be the victim of financial or other mismanagement. Any risk was not so great that it was appropriate to suspend the claimant. At this stage the respondent was not aware that the claimant had failed to carry out a best interests review, but even if it was, the claimant could have been reminded to do so. If the respondent was genuinely concerned about the risk of a visitor being brought onto premises without vital checks, the answer was not to suspend the claimant but to make a phone call to check whether the visitor did have the relevant insurance and DBS checks (or speak to the claimant).

[72]We find that, in fact, the respondent did not carry out any analysis of the risks. Had a proper analysis been carried out it would have been set out in the witness statement of Mr Hallett. Moreover, had a proper analysis been carried out, Mr Hallett would not have been forced to tell us that he could not comment on whether the claimant had explained matters to Mr Stockley on the 15th and 18th March 2024. The suspension of the claimant was simply a knee-jerk reaction to Mr Stockley’s concerns which, in turn, were raised in answer to an instruction for him to carry out a thorough investigation and find out anything lurking in the shadows. We find that knee jerk reaction occurred, in part, because “Encompass’ usual approach is to suspend in these circumstances…” (Witness statement of Mr Hallett paragraph 13). The respondent simply did what it normally did.

[73]Such a knee-jerk reaction is not, however, in keeping with the disciplinary policy which requires that each case must be considered individually (paragraph 4.1) and that consideration should be given to alternatives to suspension.

[74]Further, to the extent that the letter of suspension is accurate in stating that the suspension related to allegations of serious insubordination and potentially breaching confidentiality, the suspension was not based on the correct factual position. None of the allegations made against the claimant could be considered to be serious insubordination and there was no allegation of a breach of confidentiality. Thus, if the letter is to be taken at face value, the respondent took into account irrelevant considerations in deciding to suspend the claimant. We find that there was no reasonable and proper cause to suspend the claimant.

[75]Following her suspension, the claimant was invited to an investigatory meeting which took place on 28 March 2024. The matters set out above were discussed with the claimant but other matters were also discussed, including potential issues with GDPR because of the amount of documentation which was being stored on the premises and the manner of storage.

[76]Ms Anderson accepts that in the meeting the claimant told her that she had recently begun to experience an increase in the frequency of her seizures and the minutes record that the claimant was asked if she was OK to continue and she said that she was but she was not coping very well at the moment.

[77]In fact, the claimant had had a seizure before the meeting and had one after the meeting had concluded. She did not tell the respondent about either. We accept, having considered the claimant’s evidence, that it is more likely than not that those seizures were brought on by stress, including the stress of being suspended and the investigation under the disciplinary process.

[78]On 29 March 2024, the claimant resigned. Her resignation letter runs to 2 pages and refers to failure by the respondent to fully staff the home over the last four years, a lack of direction or support from the respondent, the PR and Marketing criteria and how they impinge upon the people who are supported in their own homes and that the respondent has an endemic institutional misunderstanding as to the concept of supported living accommodation. It is pointed out that the residents hold a tenancy for their own home from a third-party housing provider with care provided by the respondent.

[79]Notwithstanding that she had resigned, the respondent considered it appropriate to follow up (in the words of Ms Anderson) the issues which had been identified, they therefore invited all staff who worked at Prince of Wales to head office on 1 May 2024 and asked them about any concerns they had. Some were relevant to the claimant’s conduct, some were not. Ms Anderson contacted the housing association about the Wi-Fi and the decision was taken to refer the claimant to the Disclosure and Barring Service. Pursuant to that decision, a meeting took place between the claimant and Lisa Garside on 23 April 2024 and the matter was referred to the Disclosure and Barring Service. It was put to Ms Anderson, and she did not deny, that the Disclosure and Barring Service dismissed the referral at the first stage. We accept that it did.

[80]In addition, the respondent referred the matter to the police because they were concerned about the theft of monies. The police investigated these allegations but took no further action.

[81]As part of its case, the respondent asked us to consider whether the claimant would have been dismissed in any event because of a number of matters which were discovered after the claimant had resigned.

[82]The first is the purchase of the replacement printer in 2023 and the failure to carry out a best interests review.

[83]The other allegations are contained in a report to the police by Ms Anderson, the relevant part of which is at pages 753 onwards.

[84]One of the matters complained about is the purchase of a Christmas wrap wreath from Amazon for £132.16. The billing address is the claimant’s address but the delivery address is the care home. Ms Anderson’s comment to the police is that she did not know if that item had been purchased by the claimant using her own money or the residents’ finances. If the purchase had used residents’ finances, the amount spent was excessive. The claimant’s evidence was that she had itemised the purchase of Christmas presents and that this purchase was agreed by the financial trustees of the residents.

[85]The second item in the police report which is relied upon is the purchase of a rabbit hutch valued at £253.95. It is described as an unwanted purchase. There is no record of a best interest decision being carried out. The claimant’s evidence was that she did carry out a best interest assessment, she had made an overall purchase of around £2000 including a sensory swing and panel and the hutch. She told us that social workers had agreed to it.

[86]The next allegation is in relation to a number of items of expenditure (item J on page 754). The claimant maintains records were kept on the Nourish system which, she says, have not been disclosed. The respondent maintains it has disclosed all documents it has.

[87]The claimant was also asked about the provision by her partner of hoodies and the statement by Mr Stockley that he could not find those hoodies when he searched for them. The claimant maintains that they were next to her while she was being interviewed in the investigatory meeting.

[88]A number of other matters were raised in the report to police, not all of which were relied upon before us.

[89]Insufficient evidence was placed before us to enable us to make firm decisions one way or the other as to these allegations. Generally, we find that the claimant was honest and not seeking to take advantage of the residents. That was the case even when she was purchasing items from her partner. We find that he provided them at the cost price to him. We find both the claimant and Mr Hall were motivated by the best interests of the residents as they saw them. We note that the police took no further action against the claimant and the Disclosure and Barring Service took no further action. There was no basis for the respondent forming a view that the claimant was either dishonest or in any other way attempting to benefit herself at the expense of the residents.

[90]Nevertheless, we do find that the respondent was entitled to form a view that the claimant’s record keeping was not as good as it should have been, particularly in circumstances where she was spending at least 4 out of 5 shifts carrying out supernumerary work. We also accept that record keeping is important when dealing with the money of people who lack capacity.

[91]We also find that there was a considerable amount of paperwork relating to records which had been computerised which was being stored in an insecure way at Prince of Wales to the claimant’s knowledge. That was a breach of GDPR. However, the claimant was not a data controller and the respondent’s own policy did not place responsibility on her to deal with those matters. The responsibility was on managers more senior to the claimant (see page 216). The respondent has adduced no evidence to suggest that destruction of the paperwork was delegated to the claimant and we see no reason not to accept the claimant’s evidence that she discussed it with Sarah Cooke and was told that they had more important things to be doing. We do not find the claimant to be particularly culpable in this respect.

[92]A difficulty we face in analysing the evidence in relation to the allegations formed after the claimant’s resignation is that the respondent’s witnesses do not give any clear evidence as to how those allegations would have been dealt with if the claimant had remained employed. The only witness to deal with them is Ms Garside who stated if she was chairing a disciplinary and the evidence was brought to her that may have justified a dismissal on the grounds of gross misconduct (our emphasis). In the same paragraph she goes on to say that she considers that the conduct would have justified a dismissal, but she does not say, with any certainty, that a dismissal would have taken place.

[93]We think it unlikely that the matters we have been referred to would have been regarded as gross misconduct by the respondent. Although the respondent was, undoubtedly, trying to tighten up its procedures, there is little evidence that the claimant’s failures, to the extent that they existed, were deliberate. It seems to us that proper analysis would have led the respondent to conclude that these were more matters of capability than conduct and, to the extent that they were conduct, would probably have been dealt with by way of a warning. We accept that there must be a chance that the respondent would have dismissed the claimant because of these matters but we do not consider that the chance to be particularly high.

[94]However, we do find that it is likely that following Mr Stockley’s meeting with the claimant on 15 March 2024, the respondent would have maintained its position that it was not reasonable for the claimant, as the team leader of a service with six beds, to do supernumerary work for 37.5 hours a week. Having regard to its budgets, it is likely that the respondent would have decided that to the extent necessary the claimant’s contract of employment should be varied so that she was doing no more than 18.75 hours supernumerary work each week. That would have meant that she was required to do the same amount of care work. We think it unlikely that the claimant would have been happy with that change. She would have been likely to resist it but having regard to the budgets and the financial constraints which the respondent was required to operate under, we think that the respondent would have persisted. If the respondent had followed a fair process, it would have been entitled to insist on the changes and, if the claimant had refused, it would have been entitled, following a fair consultation process, to dismiss the claimant on the grounds of “some other substantial reason”. We accept that it was not necessary for that level of supernumerary work to be done at Prince of Wales and that there would be sound business reasons for reducing it. We acknowledge that the claimant’s level of supernumerary work had increased from 4 to 5 shifts a week during the pandemic when the claimant had long covid, however, at an earlier hearing the employment tribunal has determined that the claimant was not disabled by reason of long covid.

[95]There is no evidence before us that the claimant was unable to do care work because of her epilepsy. The claimant gave evidence that she would have been unable to do care work because of her bad back and in her witness statement she stated that she was unable to do the care work because she could not engage in strenuous personal care. She refers to medical records detailing back and joint pain, chest pain, breathing difficulties and other issues since she had been hospitalised with covid (paragraph 42). We do not find that the claimant was unable to do care work because of her epilepsy or that doing care work would have increased her risk of epilepsy. Conclusions by reference to the list of issues

[96]In this section we set out our conclusions by reference to the list of issues, where necessary making further specific findings of fact. Constructive unfair dismissal Downgrading the Claimant's job by way of substantial unagreed changes to her role

[97]The respondent reminds us of the claimant’s case is not that there was a breach of an express term in this respect, but there was a breach of the implied term of trust and confidence.

[98]We accept that on 15 March 2024, the respondent imposed on the claimant such a change to her role that she can properly be described as having been downgraded. It was not part of the claimant’s contract to provide the level of care work that she was required to. Clause 4.2 of the contract does not justify such a change, this was not a requirement to undertake different duties from time to time- it was a substantial and permanent change to her duties. In imposing the changes with immediate effect, the respondent was acting in such a way as to seriously damage the relationship of trust and confidence, there was no proper cause for the respondent acting immediately. Although the respondent may, following a process of consultation, have been able to justify any changes to the contract or dismissal on the grounds of business reorganisation, it had undertaken no consultation with the claimant whatsoever. The claimant was bound to feel, when taken with everything else, that she was being managed out of the business. We find this was a breach of the implied term of trust and confidence. Suspending the Claimant from work without reasonable and proper cause

[99]The respondent reminds us that question is not whether the respondent behaved reasonably or not, but whether the suspension was without reasonable and proper cause. For the reasons we have set out above, we are satisfied that the suspension was without reasonable and proper cause. There was no need for it. It was simply a knee-jerk reaction based on an assumption by Mr Hallett and his colleagues that if allegations are made which need investigating, suspension is appropriate. There was no analysis of whether the circumstances of this particular case warranted suspension.

[100]In those circumstances the respondent, without reasonable and proper cause, conducted itself in a manner likely to seriously damage the relationship of trust and confidence. Subjecting the Claimant to "victimisation and scapegoating" in respect of alleged changes to her job role

[101]The claimant confirmed in cross-examination that her complaint in this respect was that in the investigatory hearing she was asked about the paper records kept at Prince of Wales, in connection with the GDPR regulations.

[102]We do not find that there was anything wrong with the claimant being asked about these matters. She was the team leader and, therefore, the most senior person on site at the property. There were a significant number of documents being stored at the property, potentially in breach of the relevant data protection legislation. Ms Anderson was entitled to ask the claimant about those documents and at such an early stage in the process there is no factual basis for an assertion that the claimant was being either victimised or scapegoated because such questions were being asked.

[103]The behaviour of the respondent was not such as was likely to destroy or seriously damage the relationship of trust and confidence. Subjecting the claimant to “victimisation and scapegoating” regarding its decision to make a referral to the DBS in respect of the claimant’s conduct.

[104]We accept the respondent’s argument that this is an event which occurred after the claimant’s resignation. In those circumstances, it cannot have been a breach which led to the claimant’s resignation. We do not, therefore, consider it further, except to say that the decisions taken by the respondent in this respect do not persuade us (if it is the claimant’s case) that it was acting in bad faith throughout and that, therefore, we should find that the allegations regarding the data protection regulations were acts of victimisation or scapegoating. The matters relied upon as failures to make reasonable adjustments

[105]For the reasons we set out below, we do not find that there was a failure to make reasonable adjustments. Thus there cannot have been a breach of contract in this respect. Did the claimant resign because of the breach?

[106]We have not found this question altogether easy.

[107]The claimant’s letter of resignation makes no reference to the downgrading of her role or the suspension. As set out above, it focuses primarily on a difference in philosophy between the claimant and the respondent. If we had regard to the resignation letter alone, it would be difficult to make a finding that the claimant resigned because of the downgrading of her role or her suspension.

[108]However, we must also take account of the grievance. The grievance does link the resignation to the downgrading of her role and, to some extent, to her suspension. The first page of the grievance suggests that the claimant resigned in order to avoid being subjected to a dismissal which would mean that she was unemployable. However, at page 620, after she has set out the discussion with Mr Stockley about the change to her working roles she states “it was my opinion that I was being systematically moved out of the door and that my time with Encompass was soon to be curtailed. Although I was disappointed after dedicating myself to my work for so long it is something that I thought would be inevitable once TDA took over control of the company”. Thus to the extent that the claimant thought she was to be subjected to dismissal, in part she thought that because of the change of her duties.

[109]In respect of the suspension, at page 623 she refers to the disciplinary process and the fact that she was told not to discuss the matter with family members or anyone else and she was denied access to the emails and other documentary evidence that she would need for her defence. She goes on to state (page 624) that “consequently” she chose to resign to save her future career.

[110]It would be surprising if a person who had been subjected to the downgrading of role which the claimant had and had been suspended without reasonable and proper cause, would not have those matters in mind when she resigned. Whilst we find that the claimant did not resign only for those two reasons, we do find that both reasons were an effective cause of resignation even though they were not the sole effective cause of resignation. The repudiatory breaches did play a part in the dismissal. Did the claimant wait too long before resigning and affirm the contract

[111]The meeting at which the claimant’s role was downgraded was on 15 March 2024. The suspension was on 19 March 2024. The claimant’s resignation was on 29 March 2024.

[112]In those circumstances the claimant did not wait too long or otherwise affirm the contract. In the event that there was a constructive dismissal, or is it otherwise fair within the meaning of section 98(4) of the Act?

[113]The respondent contends that there was a potentially fair reason for the dismissal, namely conduct.

[114]Insofar as the respondent imposed a downgrading of the claimant’s role upon her, that was nothing to do with the claimant’s conduct. She had done nothing to warrant such a downgrade.

[115]Insofar as the respondent suspended the claimant without reasonable and proper cause, although it might be said that the claimant had done things which led to the investigation into her behaviour, they were not the cause of the suspension. We have found that there was no reasonable or proper cause to suspend the claimant. There was no potentially fair reason for it. Reasonable Adjustments Knowledge of Epilepsy

[116]There is, now, no dispute that the respondent had knowledge of the claimant’s epilepsy at the point of her dismissal and the meetings with her. Thus the respondent did know of the epilepsy at the material times. Did the respondent have the following PCPs?,

[117]When we address the question of each PCP, at the same time as considering whether it existed, we will also consider whether it put the claimant at a disadvantage compared to somebody without the claimant’s disability. The disciplinary policy

[118]The respondent urges upon us that a policy cannot be a PCP in itself. It relies upon the decision in Griffiths v Secretary of State for Work and Pensions

[2016] IRLR 216

. That was a decision about whether a sickness absence policy could be a PCP where the sickness absence policy itself provided for adjustments to be made.

[119]Arguing by analogy, Mr Anderson asserts that a disciplinary policy cannot be a PCP because there is a legal obligation to make reasonable adjustments to it. We can find no express terms of the disciplinary policy that the respondent will make reasonable adjustments, but Mr Anderson says that does not matter, because there is a legal obligation to do so. In our judgment Mr Anderson’s argument, though made with great courtesy and skill, is wrong. The fact that there is a legal obligation to make reasonable adjustments to something does not prevent that thing being a PCP. Indeed, there is no duty to make reasonable adjustments unless there is a PCP. Thus, the fact that the respondent might, at some point, make adjustments to its disciplinary policy does not prevent the policy from being a PCP in the first place.

[120]Mr Anderson’s fallback position is that the assertion that a whole policy can amount to a PCP is simply too wide. We disagree. It might be that the respondent could properly have asked for better particularisation, but that does not prevent a disciplinary policy being a provision criterion or practice of the respondent. We find that the application of a disciplinary policy was, in this case, a practice of the respondent. The particular parts of the policy which were applicable were paragraphs 4.1 onwards dealing with suspension and paragraphs 4.8 onwards which refer to conducting investigations and, in particular, interviews as part of that investigation. They create a state of affairs indicating how similar cases are to treated if they occur again.

[121]We find that insofar as the claimant was suspended and was then subjected to an investigation, she was subjected to something which caused her stress. That stress, we accept, made it more likely that the claimant would suffer from epileptic seizures. The claimant did have daytime epileptic seizures before and after the investigatory meeting. We find that it is more likely than not that those seizures were caused by the stress which was caused by the suspension and investigation.

[122]Thus, we find that the PCP of the disciplinary policy did place the claimant at a disadvantage compared to a nondisabled person, since a nondisabled person would not be likely to suffer from an epileptic seizure as a result of stress. The practice of not allowing a companion at a fact-finding meeting

[123]The respondent accepts that this practice existed. We find that the claimant was placed at a disadvantage by it. The claimant says, and we accept, that if she had been able to ask her partner, Mr Hall, to attend the meeting he would have been able to “call her back” and advise her to stop and relax so that she did not have a seizure. We do not consider that the presence of any other companion would have assisted the claimant because it required the specialist knowledge that Mr Hall had as the claimant’s partner for him to be able to perform that role.

[124]The fact that Mr Hall could not attend with the claimant meant it more likely that she would suffer from an epileptic seizure and, therefore, the claimant was placed at a disadvantage compared to a nondisabled person. The practice of changing or varying work without consultation

[125]We do not find that such a practice existed. We accept that on 15 March 2024 a change of working practice was imposed upon claimant without consultation, but we do not find that there was a general practice of doing so. Indeed, in the past when the claimant’s working pattern had changed (favourably for her, as set out above) it had been as a result of a meeting. We have been taken to no evidence of any other changes to work which had been imposed without consultation. The criterion of having to do 22.5 hours care work

[126]We find that when the claimant was required to do 22.5 hours care work each week, that was a practice or criterion of the respondent. It was a permanent arrangement and was a regular arrangement. It is, in concept, no different to a PCP of full-time work.

[127]However, we are not satisfied that such a PCP placed the claimant at a substantial disadvantage compared to somebody without epilepsy. For the reasons we have set out above, we find that the claimant’s epilepsy did not prevent her performing 22.5 hours care work although it may be that other health conditions did. A practice of only addressing actions related to reasonable adjustments during a weekly team meeting with the whole team

[128]We were provided with no sufficient evidence on which we could make any finding that such a practice existed. In 2020, the adjustments to the claimant’s workload were made in the absence of the whole team and the claimant accepted that she could have approached HR or her manager at any time if she had wanted to. We do not find this PCP proved. A practice of not having regular one-to-one supervision within which disability-related adjustments could be raised

[129]We accept that the claimant did not have regular one-to-one supervision meetings. We find that had she done so, the respondent would have been able to place the record of those supervision meetings in the bundle. In the absence of any such records, we accept the claimant’s evidence.

[130]However, we find that such practice did not prevent the claimant raising a need for adjustments to be made if she wanted to. She could have done so separately with her line manager (with whom she appears to have had a good relationship) or directly with HR. The reality of the situation is that until March 2024, the claimant did not want any adjustments to be made to her working pattern and that is why she did not raise them. Thus, we do not find that the PCP placed the claimant at a substantial disadvantage compared to somebody without epilepsy. Did the respondent know, or could it reasonably have been expected to know that the claimant was likely to be placed at the disadvantage?

[131]We repeat that up until March 2024 the claimant’s epilepsy was well controlled by medication and the claimant’s condition was stable. On the claimant’s own case, for a considerable amount of the time she was working for the respondent, it had been stressful because she was short staffed. Those elevated stress levels had not resulted in epileptic seizures.

[132]The claimant started to be placed at a disadvantage by the PCPs when she was told on 15 March 2024 that she would need to start doing care work and when, subsequently, she was told that she would be suspended and investigated. However, at that point, the respondent did not know that the increase in stress was likely to lead to the claimant suffering daytime epileptic seizures. Nor, we find, should the respondent have known that. The claimant did not tell the respondent anything about daytime epileptic seizures until the investigatory meeting. It may have been reasonable for the respondent to make adjustments to the investigatory process thereafter, but the claimant stated that she was okay to continue with the meeting and resigned the next day.

[133]Therefore, in relation to the PCPs which we have found proved and which we have found placed the claimant at a substantial disadvantage, we find that the respondent did not know, nor could it reasonably have been expected to know, that the claimant was likely to be placed at the disadvantage.

[134]It is not, therefore, necessary for us to go on to consider the steps which the claimant suggests should have been taken to avoid the disadvantage. We note, however, that none of the steps listed at paragraph 3.5 of the list of issues would have ameliorated the disadvantage which the claimant suffered as a result of the PCPs which we have found proved. Whether we would have considered it appropriate to depart from the list of issues and craft our own steps which should have been taken is not an exercise which we have needed to consider.

Compensation

[135]We directed at the start of the hearing that as part of the liability section of the hearing we would consider whether any reduction should be made to any award to take account of contributory fault and “Polkey”. We explained to the claimant the principle of “Polkey” and subsequent cases, namely that the tribunal must consider the chances that the relationship would have ended in any event in the absence of the claimant’s unfair dismissal. Basic Award

[136]The closing submissions of Mr Anderson do not specifically distinguish between reductions to the compensatory award and the basic award. We understood him to contend for reductions to both within the heading of his written submissions “Contributory Fault”.

[137]It might be thought that the reference to “Contributory Fault” is something of a misnomer in so far as the basic award is concerned. It is not necessary for any culpable failing of the claimant to have contributed to her dismissal in order for the tribunal to make a reduction to the basic award. As set out above, it is possible (as in this case) that the employer was not even aware of the claimant’s failings at the point of dismissal. Nevertheless, a finding of contribution is the way in which such a reduction is described in Optikinetics.

[138]We find that the claimant’s failures in respect of the purchase of the printer in October 2023 in not completing best interests documentation did amount to culpable or blameworthy conduct and we consider that it is just and equitable to reduce the basic award to reflect that. As we have set out above, we do not consider that the conduct was so culpable that it was likely to have led to the respondent deciding to dismiss the claimant, nevertheless it was blameworthy. We find that the appropriate reduction to the basic award is 10%. Contributory Fault – Compensatory Award

[139]As Mr Anderson submits, only pre-dismissal matters can be taken into account in considering whether the claimant contributed to her dismissal. In his closing submissions he relied upon the claimant's failure to undertake the necessary best interest evaluation in respect of the printer and the fact that the claimant engaged in a financial transaction with her partner in respect of the printer.

[140]Whilst we accept that the failure to complete the best interests documentation was culpable, it did not lead to either the change in the claimant’s duties or the claimant’s suspension. At the time of both the change in duties and the suspension, the respondent was unaware of the events around the printer in October 2023 as set out above.

[141]Thus, the claimant did not contribute to her dismissal by reference to those matters, or at all. Polkey

[142]We accept that we must do our best to ascertain what would have happened in this case, even though much of the evidence is poor.

[143]For the reasons we have set out above, whilst there is a chance that this respondent would have dismissed the claimant for those matters relied upon by it, it is significantly more likely that it would simply have imposed a sanction such as a warning. However, we find that following a proper consultation period, the respondent would have imposed changes on the claimant’s role which the claimant, ultimately, would have found unacceptable. Thus, she would either have resigned or been dismissed in circumstances where the dismissal was fair. We also take account of the fact that there was a clear difference in approach between the claimant and the respondent as set out in the claimant’s letter of resignation.

[144]Looking at all of those matters in the round, considering how long it would have taken to carry out a fair disciplinary process (which would have required meetings with the claimant) and how long it would have taken to carry out a fair consultation process with the claimant in relation to changing her role, taking account of the fact that it is not unlikely that the claimant would have required some reasonable adjustments to the disciplinary or consultation process given her epilepsy, we have concluded that the claimant’s employment with the respondent would have come to an end at a time six months after the letter of resignation on 29 March 2024. The period of six months takes into account that there is a level of uncertainty in our decision as to precisely when the employment relationship would have ended. The claimant may have resigned (or been dismissed) sooner. Alternatively, the respondent may have chosen not to dismiss her but the claimant may have taken longer than six months to find herself in a position where she was able to resign. In reaching the figure of six months, we have taken into account all of those variables and that is the figure which we consider to be just and equitable in all the circumstances. Time

[145]In his closing submissions Mr Anderson accepted that time only becomes an issue if a successful reasonable adjustment claim relates to an adjustment that should have been made prior to 5 March 2024. That is not the case and, therefore, we do not consider the question of time further Overall conclusions

[146]In summary our conclusions are these.

[147]The claim of unfair constructive dismissal succeeds because the claimant resigned as a result of two repudiatory breaches of contract by the respondent, namely that it breached the implied term of trust and confidencea. in imposing changes to the claimant’s job role on 15 March 2024 without any consultation,

b. in suspending the claimant without reasonable and proper cause on 19 March 2024.

[148]The basic award will be reduced by 10% to reflect the failings of the claimant in respect of the purchase of the printer in October 2023 insofar as she did not complete the correct best interests documentation

[149]The compensatory award will be reduced to reflect the fact that the claimant’s employment with the respondent would, in any event, have terminated on 29 September 2024.

[150]The claim of reasonable adjustments fails because although the claimant was placed at a disadvantage by two of the alleged PCPs (by reference to the list of issues, numbers3.2.1 and

3.2.2 ), the respondent did not know, nor could it have been reasonably expected to know that the claimant was likely to be placed at that disadvantage. Concluding Remarks

[151]We pay tribute to the careful and conscientious way that Mr Hall presented the case on behalf of Ms Newey. We were greatly assisted by the way that he did so and the obvious assistance which he provided to Ms Newey throughout the hearing. We are also grateful to Mr Anderson for the scrupulously fair and thorough way he presented the case on behalf of the respondent and for his helpful written submissions.