Ms J Pitts v The Driver and Vehicle Standards Agency: 1403814/2023

EMPLOYMENT TRIBUNALS

Case No 1403814/2023

Between

Ms J PittsClaimant

The Driver and Vehicle Standards AgencyRespondent

Before

Employment Judge Midgley

Mr Adam Griffiths (instructed by Counsel) for claimant

Mr Julian Allsop (instructed by Counsel) for respondent

Date 28 February 2025

JUDGMENT

[1]The claim that the respondent failed to make reasonable adjustments is not well founded and is dismissed.

REASONS

[1]By a claim form presented on 23 June 2023, the claimant brought claims of disability discrimination, victimisation, unauthorised deduction of wages, and unpaid annual leave. By a response presented on 24 August 2023, the respondent resisted the claims.

[2]The claimant withdrew all but the disability discrimination claim prior to the hearing. Those claims that were withdrawn have been dismissed by a separate Judgment dated 3 May 2024.

[3]The claimant relies upon the mental impairment created by her condition of acute anxiety for the purposes of this claim. The respondent admitted that the impairment was a disability at the material time of 17 January 2023 to 26 June 2023 and that it knew of the disability throughout that period, but disputed that it knew or ought reasonably to have known of the substantial disadvantage caused by any provision, criterion or practice because of that disability. Procedure, Hearing and Evidence

[4]The Tribunal was presented with an agreed bundle of 531 pages, a reading list of 83 pages of documents, and a helpful opening skeleton prepared by Mr Allsop.

[5]We were also presented with witness statements totalling 35 pages from the following: 5.1. For the claimant, from herself only. 5.2. For the respondent from: 5.2.1. Miss Sian Cooper, the Respondent’s Head of Business Change and Improvement in the People Directorate. 5.2.2. Miss Jayne Stone, the Respondent’s Head of People Partnering, Change and Improvement. 5.2.3. Mrs Paula Pitcher, the Respondent’s Director of People

[6]We heard evidence from each of the witnesses.

[7]Mr Griffiths provided a skeleton argument on the morning of the third day of the hearing, which we read, and he and Mr Allsop expanded on their written arguments. We are grateful to them for the manner in which they conducted the hearing, and their helpful written and oral submissions, all of which were of assistance to us.

[8]Reasonable Adjustments: We made the following reasonable adjustments to prevent any exacerbation of the claimant’s anxiety which might be caused by seeing the respondent’s witnesses or attendees and which could preclude her effective participating in the proceedings: 8.1. The claimant and respondent attended the Family and Civil Justice Centre at set and staggered times each morning; 8.2. The claimant and respondent used conference rooms on different floors of the building; 8.3. The claimant entered the Tribunal room first and positioned herself behind a screen to avoid seeing the respondent’s witnesses or those attendings as observers from the respondent during the hearing when she was not giving evidence; 8.4. The claimant gave evidence with the use of the screen so as to obscure her from the view of the respondent’s witnesses and to prevent her from seeing the respondent’s witnesses or attendees, but permitting her to see Mr Allsop; 8.5. The parties entered and exited court at all times in a manner which would prevent the possibility of the claimant seeing any of the respondent’s attendees.

[9]Despite those adjustments being rigorously adhered to, it was apparent that the claimant was at times experiencing significant effects from her anxiety condition; at times (particularly when Miss Stone was giving evidence), we observed that she was physical shaking, sobbing and rocking in her seat. Nevertheless, neither she nor her counsel indicated that she was unable to follow the proceedings effectively or asked for an adjournment of any length.

[10]On the morning of the first day, the Judge asked Mr Griffiths to identify certain critical elements of the claimant’s case. Mr Griffiths provided answers after he concluded cross-examination on the second day, and did so expressly on the basis that he did not have formal instructions from the claimant in relation to the answers which he gave, but said that his answers reflected the way in which he had presented the case. (He did not, however, subsequently resile from them, so we inferred that the claimant had confirmed them in instructions to him, although that was not expressly stated). His answers were as follows: 10.1. When does the claimant argue: 10.1.1. that the duty to make reasonable adjustment arose? – 17 January 2023 (Mr Griffiths relied upon the content of the document sent by the claimant’s Trade Union representative, Mr Williams, to Miss Cooper on that date). 10.1.2. That the respondent did an act inconsistent with the duty or refused to make a reasonable adjustment? – on the 23 February 2023 in the email sent by Mrs Pitcher to the claimant. 10.1.3. That the respondent had knowledge of the substantial disadvantage caused by the disability? – on 4 September 2021, relying on the email sent by the claimant to Miss Cooper on 4 September 2021.

[11]The need for a reserved Judgment: Mr Griffiths applied on the morning of the first day for permission to conclude the hearing early on the second day, after the conclusion of Mrs Pitcher’s evidence, to enable him to attend an urgent personal appointment which had been scheduled at short notice. The respondent did not resist the application, and we granted it but impressed upon the parties the need to adhere strictly to the timetable for the hearing that had been proposed.

[12]In the event, it was not possible to produce a reasoned judgment within the three day hearing as:(a) late disclosure and argument relating to that disclosure occurred on the morning of the third day, which had been reallocated for the parties’ arguments,

(b) the claimant made an application to recall Mrs Pitcher which we refused (for the reasons detailed below), and

(d) the parties’ representatives required time to do so and therefore submissions did not conclude until 1:15pm. Furthermore, Mr Allsop had indicated that the respondent would request written reasons, and therefore we had proposed to reserve our Judgment in any event. The additional evidence.

[13]On the morning of the second day, the parties agreed to the admission of an email containing the transcript of a Teams voicemail message left by the claimant for Miss Cooper. It was labelled ‘Document A.’

[14]During her cross examination, Mrs Pitcher stated that she had not seen the claimant’s email to Miss Cooper of 4 September 2021, the claimant’s note for the OH referral of 6 December 2021, the OH report of 30 September 2021, an email sent by Mr Williams (the claimant’s trade union representative) to Julie Kanaan on 1 November 2021, or the claimant’s list of reasonable adjustments sent by Mr Williams to Miss Cooper on 17 January 2023, and that she had seen them for the first time in the bundle. She was taken to an email sent to her by Miss Cooper on 21 February 2021 [212] which appeared (from the titles of the attachments) to include an OH report. Mrs Pitcher was adamant that no OH report had been attached, but other documents may have been.

[15]In consequence, the respondent produced the original electronic email and embedded emails and attachments on the third morning. The claimant did not object to their admission, but sought permission to recall Mrs Pitcher to review the answers that she had given, asserting that her credibility was relevant to the issue of whether the respondent had made reasonable adjustments as the claimant argued that she had not turned her mind to whether there was a need to make adjustments at all. We rejected that application because the determination of whether the duty to make reasonable adjustments arose or whether the steps proposed were reasonable did not require any consideration of whether Mrs Pitcher’s explanation for what she did and why was credible. The test is an objective one, applying the legal principles and having regard to the factors in the EHRC Code at paragraph 6.28, in so far as they apply.

[16]The email in electronic from as disclosed by the respondent was relevant to the respondent’s knowledge of the substantial disadvantage caused by the PCP; it was labelled ‘Document B.’

[17]I identified a further email which contained the same named attachments [225], which was relevant to the same issue, and that was also produced by the respondent in electronic form. It was labelled ‘Document C’.

The Issues

[18]The issues had been identified by Judge Ferguson in a case management order dated 3 May 2024. Following concessions by the respondent, the issues to resolve were as follows: 1 Time limits1.1 Given the date the claim form was presented and the dates of early conciliation, any act or omission which took place before 16 January 2023 is potentially out of time so that the Tribunal may not have jurisdiction to hear that complaint.

1.2 Were the discrimination complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:1.2.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act or omission to which the complaint relates?

1.2.2 If not, was there conduct extending over a period?

1.2.3 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?

1.2.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:1.2.4.1 Why were the complaints not made to the Tribunal in time?

1.2.4.2 In any event, is it just and equitable in all the circumstances to extend time? 2 Reasonable Adjustments (Equality Act 2010 ss20 & 21)

2.1 The respondent admitted that it had applied the following PCPs:2.1.1 Placing Senior Business Change Managers within Ms Stone’s Counter Signing Management Chain, as opposed to that of another Grade 6 manager [PCP1];

2.1.2 The practice of placing employees within a specific management chain determined by the Respondent [PCP2].

2.2 Did the PCPs put the Claimant at a substantial disadvantage compared to someone without the Claimant’s disability, in that Ms Stone being her Counter Signing Manager resulted in the Claimant being unable to work and/or caused the Claimant to suffer a high degree of anxiety? [The respondent put the claimant to proof but did not advance a positive case that it did not].

2.3 What steps (the ‘adjustments’) could have been taken to avoid the disadvantage? The Claimant suggests: arranging for her to be ‘counter sign managed’ by someone other than Ms Stone.

2.4 Was it reasonable for the Respondent to have to take those steps and when? [The respondent asserted that it was not as

(a) the step would not remove the advantage and

(b) the steps were unreasonable in any event]

2.5 Did the Respondent fail to take those steps? [By implication, the respondent accepted that it did not take the step1]

2.6 Did the Respondent know or could it reasonably have been expected to know that the claimant was likely to be placed at the disadvantage? [The respondent denied that it knew of the substantial disadvantage] Factual Background

[19]We make the following findings of fact, which were unanimous, on the balance of probabilities in light of the documentary evidence presented and the witness 1 This is addressed in the Discussion and Conclusion section evidence we heard. The respondent’s business structure and resources.

[20]The respondent employs approximately 4500 staff, across multiple sites nationally. Of primary relevance to this case are its premises in Bristol, although it has other premises (which were referenced) in Nottingham and elsewhere. As a Government department, the respondent is subject to the prevailing scrutiny of public finances, and has experienced, as with all Government departments, the effects of austerity, and the constant requirement to identify efficiency “savings.” In plain language, the respondent has for a prolonged period been subject to considerable budget cuts whilst experiencing increasing scrutiny of its performance and delivery.

[21]The respondent’s People Directorate consisted of three senior managers (counter signing managers or “CSMs”) at grade 6, who reported to the Director of People, Mrs Paula Pitcher. Each of the grade 6 managers held a portfolio of the People Directorate.

[22]Miss Jayne Stone was one of the CSMs, and, as detailed in the history of events below, became the Head of People Partnering, Change and Improvement Directorate. In that role Miss Stone was responsible for the respondent’s inhouse HR operation. The CSMs were responsible for the direct line management of Senior Business Change Managers, a grade 7 post. Ms Stone managed four grade 7 staff, one of whom was Miss Sian Cooper.

[23]Ms Cooper was responsible for the day-to-day management of the team, directing them on how they would deliver the Directorate’s objectives, overseeing the performance, development and well-being of the team, and handling administrative tasks, such as request for training, expenses and annual leave.

[24]The claimant was one of the Business Change Managers that Ms Cooper managed. Ms Cooper took up her line management from 12 October 2021. The claimant herself was first employed by the respondent in 2014. The respondent’s Bristol premises

[25]The People Directorate operates from premises in Bristol. Four hundred of its staff are located in those premises, working general office hours; the building was open from 7am to 7pm. Miss Stone, Miss Cooper and the claimant all worked from the Bristol premises and were all contractually obliged to work standard office hours. The nature of the work that the three women undertook necessitated regular travel to the respondent’s other premises. In consequence, on average Miss Stone worked from the office between two or three days a week.

[26]The respondent’s premises in Bristol is a four-storey building, including a basement level. There are two access points for staff, one from the basement and one at ground level through the general reception area. Each floor may be accessed by a lift at opposite ends of buildings with two corresponding security doors. The basement level consists of meeting rooms, the first-floor houses accommodation and administrative functions. The second and third floors are occupied by the grade 6 and grade 7 managers.

[27]As with many Government buildings, there are maintenance issues. At the time of the matters arising in this claim, it was not uncommon for the fourth floor to be affected by leaks in the roof, requiring the affected staff to be relocated elsewhere in the building. Whilst the event of maintenance works was predictable, because it had to be scheduled, the leaks requiring the movement of staff on health and safety grounds were not. The interactions between a CSM and a Business Change Manager.

[28]As Ms Cooper’s line manager, Ms Stone was the claimant’s CSM. A CSM does not ordinarily have a great deal of interaction with an employee which they countersign manage because, as indicated, it is the grade 7 who directly line manages such employees. The grade 6 is responsible for driving the strategic direction of the relevant Directorate, ensuring that a consistent approach is taken by each of the teams within it. They are also responsible for supporting the grade 7 managers in the delivery of their work.

[29]The occurrences which might necessitate the involvement of a CSM with the affairs of a Business Change Manager were as follows: 29.1. bimonthly team meetings, which were predominantly conducted remotely, at which the CSM, Senior Business Change Managers and the Business Change Managers would attend; 29.2. in the absence of the grade 7 manager, the CSM would take on responsibility for the direct line management of the Business Change Managers, but generally only in the circumstance where the relevant line manager’s tasks had to be completed within a specified timeframe and the applicable deadline fell within the period where the usual line manager was absent or unavailable. For example: 29.2.1. an employee would have to report the sickness absence to a grade 6 manager in the absence of the grade 7 manager. 29.2.2. a grade 6 manager would conduct a quarterly performance review in the absence of the grade 7 manager. 29.3. The grade 6 manager conducted a high-level moderation review of the “descriptors” awarded during quarterly reviews by a grade 7 manager to staff in the team, seeking to ensure that descriptors were appropriate in light of the grade 6 manager’s understanding of the overall performance of the team against its strategic objectives. The review was therefore a broad one across the team, its objectives and performance, rather than a direct assessment of the individual’s performance. However, a detailed and indepth understanding of the team’s objectives, performance and challenges was essential to the conduct of that role. The ‘descriptor,’ however, had no impact on pay, or promotion, but was merely a reflection of the individual employee’s performance across the relevant quarter. 29.4. Training: a grade 6 manager would identify the team’s training needs at the outset of the financial year, measure it against the team’s objectives and strategic demands, and ensure the appropriate budget was allocated in respect of those needs. In the instance where a request was made for training which fell outside the training needs that had been identified by the grade 6 manager, the application for the relevant training course had to be submitted to the grade 6 manager for approval. 29.5. Flexible working requests: a grade 7 manager could discuss a business change manager’s request for flexible working with a grade 6 manager, when seeking to determine whether any request was compatible with the respondent’s business needs. 29.6. Lastly, where there was any dispute in relation to the grade 7’s determination of an application for annual leave or for the payment of expenses, or if a grade 7 manager had not actioned or determined an expense request within three weeks, the dispute or the unactioned expense claim would be referred to the grade 6 manager for a final decision.

[30]It was suggested to Miss Stone by Mr Griffiths that the types of decisions that were made by grade 6 managers had a significant impact on their subsubordinates, the Business Change Managers. That suggestion was, we determined, accurate only insofar as there were occasions on which such decisions were made and to the limited extent detailed in our findings above; generally, there was very little need for any such involvement by a CSM. However, it is clear to us that Mr Griffiths’ suggestion reflected the claimant’s fervent and unassailable belief that Miss Stone not only had significant ‘power’ of that form over her but sought to exercise it (as recorded below). The claimant’s anxiety and the substantial disadvantage it caused.

[31]The claimant has suffered from the effects of acute anxiety and depression for over 17 years. She first approached her GP in respect of those matters in 2008 and has been prescribed medication to manage its symptoms “on and off” from that date. At various times, she has been prescribed Citalopram, Propranolol, Diazepam, and Vencarm, and has undergone other forms of treatment, including cognitive behavioural therapy, talking therapy and counselling. She has been proactive in her attempts to manage the debilitating effect of her condition.

[32]In approximately 2011/2012, the claimant required six months’ sick leave from a previous role to manage the symptoms of her condition. Her health had improved sufficiently by 2014 that she was able to cease the use of prescribed medications. However, by 2017 the symptoms had returned and since that date, in the claimant’s words, they “have been consistently heightened” requiring her to take periods of short-term and long-term absences to manage them.

[33]Insofar as the period which is the subject of this claim is concerned, the claimant told us that her symptoms had been “very bad” since summer 2021 and “extremely bad” since August 2022.

[34]One of the effects of the claimant’s anxiety, as she describes it in her disability impact statement, is that she is “unable to cope emotionally with every day external stresses that other people could easily brush off.” She accepts that her reaction to those situations is irrational, and we accept her evidence that the extreme anxiety which she experiences in the moment is “real” and her emotions simply take control of her. Consequently, talking about or even just thinking about things which the claimant finds frightening, (including matters at work) causes her to become tearful, and affects her concentration and her sleep. On occasion she experiences nightmares about the matters which she regards as causing stress in her life.

[35]Between January 2018 and February 2019, the claimant issued three grievances about the decisions made by Miss Stone. We were told that aspects of those grievances were upheld, albeit they were not upheld in their entirety. We note, in particular, that in an response to queries raised by the claimant with Mrs Pitcher in 2020, Mrs Pitcher stated that Miss Stone had not been required to apologise to the claimant because “there was a partial finding against [Miss Stone] but that this was not attributed to [her] personally therefore no apology is necessary.”

[36]As a consequence of those matters, the claimant has in her words “long believed that [Miss] Stone holds a grudge” against her. That belief, we concluded, was an irrational belief, born out of the claimant’s underlying anxiety; the claimant was unable to produce any evidence of such a grudge during the tribunal proceedings, and the point was not put with any force at all to Miss Stone in cross examination.

[37]Nevertheless, that belief, and an acute fear connected to the claimant’s anxiety state regarding Miss Stone has taken a firm and unshakeable grip of the claimant’s conscious thought since she returned to work in 2018. The result is that “seeing…, hearing… and even just thinking about [Miss] Stone” causes the claimant to experience feelings and physical symptoms of anxiety. In her witness statement she describes that anxiety as being more intense than ever but accepts that the degree of her fear is irrational and unjustified.

[38]We are satisfied from the claimant’s descriptions in her witness statement, disability impact statements and her evidence before us, that the level of anxiety had more than a trivial adverse influence on her ability to conduct dayto-day activities including working, concentrating, and sleeping from 2018. (It was for that reason that screens were used as described above is a reasonable adjustment during the proceedings.) Events between April 2019 and the commencement of the Claimant’s sick leave on 22 August 2022

[39]In approximately April 2019 the respondent conducted a restructuring which resulted in the Business Change team becoming part of the HR Directorate. As a consequence, the claimant encountered Miss Stone with greater frequency and regularity. That contact was still, however, very limited, amounting to bimonthly team meetings, which were held remotely, and a handful of direct emails each year.

[40]Notwithstanding that limited contact, it was necessary for the claimant to develop ‘coping strategies’ which she utilised in conjunction with medication, counselling, and other treatments to manage her anxiety at a level that permitted her to remain in the workplace, albeit we concluded the impairment created by her anxiety amounted to a disability from the date of her return to work in 2018 but certainly by April 2019.

[41]The coping strategies in question were as follows: 41.1. the claimant did not attend any meeting at which Miss Stone was present, and took active steps to avoid any meeting which she believed she was due to attend; 41.2. the claimant asked her colleagues to provide her with verbal reports of what was discussed at the meetings which she had avoided; 41.3. the claimant asked colleagues to conduct reconnaissance trips to the fourth floor, where Miss Stone habitually worked, if the claimant was due to attend a meeting on that floor. If Miss Stone was present, the claimant would not attend the fourth floor; 41.4. the claimant triple checked all emails that she sent that might be referred to Miss Stone or which she might conceivably see.

[42]In the summer of 2021, a further business restructure resulted in Miss Stone becoming the grade 6 CSM for the Business Change Team. At that time, the claimant’s line manager was Miss Jackie Malley. We are satisfied that from the summer of 2021, the extent of the claimant’s irrational fear of Miss Stone was such that the claimant was unable to tolerate the thought of Miss Stone having any involvement in her employment affairs without experiencing an extreme, but entirely irrational and unjustified, anxiety response. That was the tragedy of the claimant’s anxiety; the claimant would experience irrational and unjustified fears which she experienced as very real and actual fears, and only later came to recognise them for what they were. Nevertheless, they took control of her working life.

[43]The claimant feared taking necessary sick leave in case Miss Stone weaponised that situation against her. That fear was itself irrational; Miss Malley was responsible for the day-to-day management of the claimant’s sickness absence and medical appointments. There would be little or no need for such matters to be escalated to Miss Stone,2 and no evidence was presented by the claimant of any occasion where Miss Stone had become involved in the management of her sickness absence at all at this time, still less was there any evidence of Miss Stone acting inappropriately in relation to such matters.

[44]A further example of the claimant’s irrational fear of Miss Stone, its extension to all those who had any contact with her, and its manifestation at work is provided by the claimant’s expressed concerns regarding the recruitment of Miss Cooper by Miss Stone.

[45]Miss Cooper was recruited in the summer of 2021; she took up her post in September 2021 and became the claimant’s line manager with effect from 12 October 2021.

[46]Prior to that occurring, on 1 October 2021, the claimant met with Alison Moore, an HR Business Partner, seeking support and raising various concerns. A specific concern she raised was her belief that Miss Cooper would be subject 2 Indeed, the claimant was told that by Alison Moore on 1 October 2021 – as the claimant recorded in her email to Miss Moore on 8 November 2021 “You were clear that the way that JM managed the personal discussions and WAP (Wellbeing action plan) with me was the normal procedure, in that this should be solely between the Individual and LM, and the grade 6 shouldn’t be involved at all.” to a ‘conflict of interest’ because she had been recruited by Miss Stone and the claimant believed that she would therefore feel the need to be loyal to Miss Stone when fulfilling her duties as the claimant’s line manager. (We pause to note that at this stage the claimant had not met Miss Cooper and had no basis at all for such a belief). She complained that in those circumstances she would be unable to discuss her anxiety and mental health with Miss Cooper so as to obtain support.

[47]As the factual background will record, that belief was not only entirely baseless, but the polar opposite of the reality – Miss Cooper became a trusted confidant of the claimant and was incredibly supportive and understanding of her and her health concerns.

[48]In the email that she sent Ms Moore following that discussion, the claimant wrote, “A significant trigger is contact with Jayne Stone, and the fear I have of her interfering in the management of me.”

[49]Ms Moore sought to reassure the claimant, both as to Miss Cooper’s impartiality and the claimant’s fears more generally but also discussed potential solutions in the event the claimant’s fear proved insurmountable, including a managed move or redeployment.

[50]Thereafter, the claimant had almost no direct contact with Miss Stone. Nevertheless, we accept the claimant’s evidence that she found simply being within Miss Stone’s management chain a source of acute anxiety because she believed that Miss Stone had ‘power’ over her, which she feared she could and would exercise at any time. The claimant was absolute in her strict adherence to her coping mechanisms in order to manage her anxiety at a level that permitted her to work at this time.

[51]On or about October 2021, the claimant asked for a meeting with Miss Cooper The claimant told Miss Cooper of her anxiety about Miss Stone, particularly if the two women were present in the same space, and so explained that she could not attend meetings at which Miss Stone was present and avoided going to the fourth floor of the Bristol building in case she met Miss Stone. Miss Cooper agreed, as a special dispensation, that the claimant need not attend meetings which Miss Stone attended. As we have detailed, there were approximately six of those a year.

[52]Nevertheless, despite the claimant’s use of her coping mechanism, the dispensation agreed with Miss Cooper, and the fact that there was no direct contact between the claimant and Miss Stone, the claimant’s anxiety continued to increase. In consequence, the claimant requested a further meeting on 25 January 2022 when the two were in Swansea. As this was a more formal meeting, Miss Cooper made notes (which we found to be an accurate and complete account of the key points the two discussed). She recorded that fact of the claimant’s fear of Miss Stone arising from her grievances, and the dispensation we have detailed above. The claimant asked whether it would be possible to change Miss Stone as her CSM and Miss Cooper explained she would escalate that request, recording it in her note.

[53]The claimant was adamant that Miss Cooper should not reveal her concerns, or their basis, to anyone else, including the respondent’s internal HR function, because of her fear that since that service reported into Miss Stone she would weaponize any report to it indicating the claimant’s vulnerability against her. As with her fear of Miss Stone generally, that specific fear had no basis in reality and was a manifestation of the claimant’s anxiety.

[54]Miss Cooper subsequently approached Miss Stone, asking her whether she would agree to a change. She did not tell Miss Stone of the basis of the claimant’s request, given her agreement to keep such matters confidential. Miss Stone rejected the request as she could see no obvious justification for it and in light of the disruption that it would cause to the team and the department more broadly; it was important that Miss Stone maintained oversight over each in her role. Furthermore, the department was under pressure to increase its delivery against a background of the reorganisation and reducing and tightened budgets.

[55]In the summer of 2022, the claimant experienced significant stress and anxiety in relation to a project she was working on named Workwise.

[56]On 17 June 2022, the claimant and Miss Cooper met, again in Swansea, to discuss the claimant’s Q4 performance. The claimant had been awarded an ‘exceeding’ descriptor by Miss Cooper in her Q4 performance review in March. The claimant asked what the outcome in relation to her request for a change of CSM had been and was told of the result detailed in our findings above. Miss Cooper suggested that the claimant could consider redeployment, but the claimant rejected that, because she was content in her team.

[57]Sometime thereafter, Miss Pitcher raised with the Grade 6 managers that following a review that the team’s performance ratings were not consistent with the overall performance of the Directorate, and she asked them to review the ratings awarded by the Grade 7 managers. On reviewing the ratings in her area of responsibility Miss Stone noticed that Miss Cooper had awarded a high number of her team ‘exceeding’ descriptors, which surprised her, given her knowledge of the team’s performance in that quarter and Miss Cooper’s concerns which she had expressed to Miss Stone about the capability and performance of members of her team. She therefore asked Miss Cooper to provide evidence justifying the awards to the individuals concerned. The claimant was one of those and was made aware that Miss Stone had ‘challenged’ the descriptors that had been awarded. She did not know that Miss Stone’s challenge was made in respect of all of those in the team who had been awarded the descriptors and was a challenge to the evidential basis of Miss Cooper’s assessment, rather than the individuals’ performance. When the claimant became aware she experienced an extreme spike in her anxiety.

[58]On 15 August Miss Cooper began a period of sickness absence which lasted until 4 October 2022. During that period Miss Stone became the claimant’s defacto manager.

[59]Consequently, on 19 August 2022 Miss Stone sent a Team Message to a number of Miss Cooper’s reports, including the claimant, indicating that it did not appear that they had had their quarterly review and proposing that she would schedule them if that were the case. Miss Stone was aware that the claimant did not want her to be her CSM, assumed this related to the previous grievances, and thought hard about the best course, weighing the likelihood of the claimant reacting badly to the message against the probability that the claimant would react equally badly if Miss Stone did not schedule a performance review for her.

[60]Miss Stone therefore scheduled a quarterly performance review for the claimant on 2 September 2022. The claimant received a Teams invite in respect of it. The invite did not identify that the meeting was with Miss Stone; at that stage it was unclear when Miss Cooper would be returning and therefore whether she or Miss Stone would conduct the meeting. The claimant emailed Miss Cooper, whilst the latter remained absence on sick leave, on 25 August 2024 in which she wrote. FYI, Jayne has put in a Q1 meeting with me given your absence. I have to say I’m incredulous about this given the history and I cannot possibly put my mental health at risk by having this Q1 meeting with her so I’m not sure what to do really.

[61]She had emailed Miss Cooper (days earlier) asking her to sign off expenses claims so as to avoid Miss Stone having responsibility for doing so.

[62]On 30 August 2022, the claimant’s mental health nurse called Miss Stone to report her sickness absence because the claimant was unable to do so. Miss Stone made a file note in relation to that call. The nurse told her that the claimant had attended the surgery and had been signed off sick for a month because she was showing signs of burnout. He stated she had drafted an email regarding her sickness but did not want to send it to Miss Stone and did not want contact from her during her sickness absence. Miss Stone suggested that the claimant sent the email to Julie Kanaan, the Head of Colleague Experience in the People Directorate, and that another manager could be appointed to keep in touch with her.

[63]The claimant began a period of sickness absence that day, 30 August, from which she was not to return before presenting this claim.

[64]Ms Kanaan would become the claimant’s manager (not her CSM) until Miss Cooper returned from sickness absence. She spoke to the claimant on 2 September 2022 and proposed a referral to OH. She did not have sight of the claimant’s previous OH reports.

[65]The claimant submitted a fit note citing work related stress as the reason for absence. The claimant’s email to Miss Cooper of 4 September 2022

[66]In the summer of 2022, the claimant had been experiencing significant stress and anxiety in relation to a project she was working on named Workwise.

[67]On 4 September 2022, the claimant sent Miss Cooper a long email detailing her concerns about the pressures of the project and their effect on her. She wrote, Unfortunately, I’m really sad to say this has all become too much for me. The combination of cumulative workwise issues which had left me feeling incredibly stressed for a while now – but I kept on going – but the real tipping point has been issues with Jayne Stone, fear of her and the position I find myself in with her now. I can’t believe it to be honest. Exactly what I didn’t want to happen.

[68]She detailed her concerns about the Workwise project over three pages. Those pages, we find, were a genuine expression of the stress the claimant experienced in relation to it. Furthermore, the claimant wrote that “[I] cannot accept that she doesn’t have an issue with me” and, writing of Alison Moore (HR) and Miss Stone, stated “I have no trust in them.”

[69]The claimant then addressed her relationship with Miss Stone in some detail, detailing that she was worried about taking sickness absence because of repercussions from Miss Stone, that she believed Miss Stone had unreasonably challenged her performance rating, refused to authorise a training budget for her to attend a course, and stated that she was sure that she was discriminating against her because of her prior grievances. She described the impact on her as follows, “As with you, I have outlined to previous managers… that I cannot be in meetings with her, as her behaviours have affected me so badly, I am scared of her. My GP and mental health practitioner have likened it to PTSD symptoms.”

[70]In the event, because she was on sick leave, Miss Cooper did not read more than the first paragraph of the letter until 20 October 2022. The claimant’s attempts to return to work and request for adjustments.

[71]There were considerable difficulties in organising the meeting with OH for the purposes of obtaining a report: the claimant was concerned with the referral that was provided and required it to be amended, she wished for a face to face assessment rather than a remote one, and was particular about the practitioner that she would see, wanting to see someone she had seen previously.

[72]In preparation for the assessment, the claimant prepared a detailed note to provide to the practitioner. In it she detailed the stresses of the Workwise project and Miss Stone becoming her defacto line manager as the causes of her stress. She described how she was “always having to think about how I manage and mitigate things so she can’t use things against me.” She sent it to Miss Kanaan. The OH report of 30 September 2022

[73]On 30 September 2022, the claimant attended a telephone assessment with Kelly Lynes. The resulting report recorded that the claimant was unfit for work due to her poor state of mental health. It recorded that she had symptoms of a stress related illness and had been diagnosed with anxiety and depression which was being managed by her GP with medication, and with support from a mental health support worker and nurse. It noted she was on the waiting list for counselling. It opined that the mental health condition was likely to be a disability, and the claimant would not be fit to return for 7-8 weeks, when a phased return should be considered.

[74]The practitioner recorded that the claimant had reported “previous managerial relationship difficulties, and a previous grievance raised” in consequence of which the claimant was unable to return to work, recommending that the circumstances relating to it should be explored with her and a stress risk assessment completed with her on her return to work.

[75]On 30 October 2022, the claimant emailed Miss Cooper to complain that the report was unsatisfactory because its focus was too “narrow” and did not report the detail of the claimant’s note, specifically it did not report that the claimant’s assertion that the cause of her stress and anxiety was Miss Stone.

[76]On 1 November 2022, Mr Paul Williams, the claimant’s PCS Union representative wrote to Ms Kanaan, asking for a meeting to discuss the claimant’s position and return to work, specifically asking to discuss the issue of the anxiety that Miss Stone’s position as the claimant’s CSM caused the claimant.

[77]Miss Cooper had returned to work on 4 October 2022 and so sought to arrange a meeting with Mr Williams. On 22 November she asked whether the claimant was raising a formal grievance; Mr Williams confirmed that she was not on 27 November.

[78]In the period from November 2022, Miss Cooper sought to arrange a further OH report with the OH practitioner the claimant had requested because she was aware of the claimant’s history, a Dr Folks. In that period, an assessment which had been scheduled in December 2022 was vacated because it was not face to face, and a further appointment in January 2023, which was face to face, was vacated because the appointment was with a male mental health practitioner, not Dr Folks. Confidentiality instruction

[79]In January 2023, whilst efforts to arrange an OH assessment and a meeting with the claimant’s TU representative, Mr Williams, were ongoing, the claimant spoke to Miss Cooper and instructed her not to share any information in relation to her health with Carys Samuel and Rebecca Seager, two HR Caseworkers/Business Partners who reported into the HR team which reported to Miss Stone. Miss Cooper confirmed that instruction with them in an email on 12 January 2023, noting that she had not at that stage agreed to it.

[80]In the same email she appraised the two HR managers of the claimant’s explanation for her sickness absence as follows: She requested that I not share any information was because you are both in Jayne’s line management chain. Yet so am I. She told me that her worry is that information is going to be shared with Jayne, and she does not feel this is appropriate as she has told me that Jayne is the reason that she has gone off on sick. She explained in one of her catch ups that, the fact that Jayne is the counter signing manager for her, and that she is so close to the team, is making her ill. She explained that the tipping point in her going off sick was receiving an invite for a quarterly review from Jayne, whilst I was unable to work. Jayne agreed to conduct the quarterly reviews in my absence as she did not deem that there was any successor capable of stepping up to the deputy role. I agree. It was at this point she went off on sick, as she couldn’t face the quarterly review with Jayne. She feels that if someone else was asked to conduct the review, she would have stayed in work.

[81]On 16 January the claimant presented a further fit note covering the period 16 January to 13 February citing ‘work related stress and anxiety.’ The meeting of the 23 January 2023

[82]On 17 January 2023, Mr Williams sent Miss Cooper a document in preparation for the meeting on 12 January 2023 entitled ‘Reasonable Adjustments’ and explained that it contained the reasonable adjustments that the claimant wished to discuss. The ‘adjustments’ requested included: 82.1. Replacing Miss Stone as the claimant’s CSM 82.2. Confirmation of the claimant’s Q5 2011/22 Performance rating as ‘exceeding’ – again, the claimant inaccurately suggested that Miss Stone was ‘blocking’ that process. 82.3. A face to face OH assessment with a female practitioner 82.4. Her period of sickness absence (4 months) should be discounted because Miss Stone had become the claimant’s defacto line manager. 82.5. A disability passport should be put in place recording adjustments to the sickness absence trigger point for the claimant.

[83]Miss Cooper forwarded that to Sarah McCool, an HR Case Manager who was assigned to support for the meeting. On 20 January 2023, Miss McCool commented to Miss Cooper that, “The requested adjustments seem – on the whole – to be reasonable and ones that should certainly be discussed/explored. I appreciate that some such as the change in counter-signing manager might be more difficult that other.”

[84]That comment was not, we concluded, an expression of a final view that the adjustments as a whole were reasonable and should be implemented, and specifically did not express that view in relation to the change in CSM. We reject Mr Griffiths’ argument that that is how the email should be read. That is because in the document Miss McCool sent to Miss Cooper she commented as follows in relation to the CSM change, As discussed previously, this is a business decision. However, the business should reasonably consider implementing the request either in the short, medium or long term if it is a barrier to Justine returning to work. If it is feasible to implement it, then would recommend unless there are justifiable reasons why not. If it cannot be accommodated, reasons should be given.

[85]Put simply, Miss McCool was reporting that it could be considered if Miss Stones’s position as CSM was a barrier to the claimant’s return to work, but a fundamental aspect of that consideration was whether it was feasible. If it was not, then the respondent should explain why. Indeed, she made precisely that point in her email to Mrs Pitcher, Miss Cooper and others of 7 March 2022 [247]. I have not at any point advised Justine / her TU rep that a change in Counter-Signing manager is a ‘reasonable adjustment’. What I did say is that it was reasonable for the business to consider the request (as it is reasonable for a business to consider any requests an employee identified as a supporting measure to help them return to work), and that it was reasonable for Sian to take the request away for it to be considered by the business. However, I did not (and would not) confirm or support that it was a reasonable adjustment for a business to change a counter signing manager, as this is not my call to make.

[86]The meeting itself was a positive meeting. The respondent agreed to refer the claimant’s request for a change in her CSM to someone with the authority to make the decision to consider. The claimant asked that the decision should be referred to someone outside the Directorate. Consideration of a change in CSM

[87]In consequence, on 27 January 2023, Ms McCool emailed Miss Seager, the HR Business Partner, advising her of the request. In turn, Miss Seager referred that request to Mrs Paula Pitcher, the Respondent’s Director of People, on 1 February 2023.

[88]The claimant was told of that and in an email to Miss Cooper on 5 February 2023, objected on the basis that Mrs Pitcher would experience ‘a clear conflict of interest.’ She did not explain why that was the case; if the reason were Mrs Pitcher’s involvement in the previous grievance it would not give rise to any conflict of interest - Mrs Pitcher had not been the subject of the claimant’s historic grievances, which might have provided a basis for an argument of perceived bias. Rather, she was being asked to make a decision as to whether the business could support a particular change,

[89]The claimant’s entitlement to statutory sick was to drop to half pay on 27 February 2023 and would be exhausted on 17 March 2023; Miss Cooper had written to her identifying that in January 2023.

[90]On 15 February 2023, the claimant therefore took steps to return to work once her entitled to sick pay have been exhausted. In consequence she obtained a fit note covering the period 15 February to 16 March 2023, which reported that she might be fit subject to reasonable adjustments which the claimant ‘has discussed with you.’

[91]Additionally, to the same end, Mr Williams wrote to Miss Cooper on 20 February 2023, requesting that her pay be continued at full pay until the point that the respondent had put the requested adjustments in place. He argued that the claimant’s sickness absence had been caused by the respondent, specifically Miss Stone’s status as the claimant’s line manager, which he alleged the respondent had “full knowledge of” - that was incorrect, the respondent did not know because the claimant had not said before going sick that Miss Stone’s position as her CSM would necessitate her taking sick leave. She had articulated that it caused her stress and made her feel unwell but that she had also said that she had adopted measures to reduce that stress so that she could continue to work.

[92]Ms McCool advised that very careful thought would have to be given before any variation to the contractual obligation relating to sick pay could be unilaterally altered in that way.

[93]On 21 February 2023, Miss Cooper emailed Mrs Pitcher two specific scenarios for the change in the claimant’s CSM to consider: 93.1. Removing Miss Stone as the CSM for the Business Change and Improving Team; or 93.2. Miss Stone remaining in that role, but a new CSM would be assigned for the claimant.

[94]Additionally, she asked Mrs Pitcher to decide the sick pay issue, noting that all other adjustments which the claimant had requested were in place. Oddly, Miss Cooper emailed the email in draft to the claimant at or about the same time, asking for her thoughts, but it appears she sent it in the absence of comment on that day from the claimant.

[95]Mrs Pitcher asked for more information from Miss Cooper to understand the basis of the request for the change in CSM. That put Miss Cooper in a difficult position, given the claimant’s request for confidentiality, and she sought advice from Miss McCool. That latter suggested that she should share Ms McCool’s responses to the request for reasonable adjustments (which she had prepared for the meeting in January with Mr Williams) but not the minutes of the meeting itself.

[96]Miss Cooper approached the claimant to ask what she could share, but the claimant refused to permit her to share her email of 4 September 2022 which provided the full detail of her anxiety. In consequence, on 21 February 2022 Miss Cooper sent Mrs Pitcher the following documents: 96.1. The tabular document prepared by Miss McCool detailing the requested reasonable adjustments and her response to them to which the action points had been added., 96.2. The claimant’s fit note of 20 October 2022 citing work related stress and anxiety. 96.3. The claimant’s note prepared for the OH appointment in September 2022 which had been sent to Ms Kanaan; and 96.4. The minutes of the meeting of 23 January 2023 (which had been attended by the claimant, Mr Williams, Miss Cooper and Ms McCool). 96.5. By an email sent later that day at 9:53pm, the claimant’s email of 4 September 2022, which she had edited only to show matters relating to Miss Stone, removing the concerns relating to Workwise.

[97]Thereafter between 21 and 23 February Mrs Picher, Miss Carys and Emma Canning, an HR Business Manager, worked on a draft response to be sent to the claimant. Miss Cooper also contributed. The letter of 23 February 2023

[98]On 23 February Mrs Pitcher responded to the claimant’s request for a change in her CSM. It is clear from the language of the document that Mrs Pitcher and those involved in the draft understood the request to have been made in the form of a request for reasonable adjustments in relation to the claimant’s underlying anxiety disorder. The OH report from September 2022 had identified that condition as a disability, and whilst Mrs Pitcher had not seen the report, Miss Cooper and Miss Kanaan were aware of its contents.

[99]Mrs Pitcher’s decision was that she would not replace Miss Stone as the claimant’s CSM. The key factor in that decision as recorded in the letter was that there was no evidence that Miss Stone had acted inappropriately towards the claimant in the role of her CSM – it followed from that that Mrs Pitcher was rejecting the claimant’s allegations relating to her grading, expenses, training request and other matters, in so far as she had been made aware of them. She accepted that Miss Stone’s status as the claimant’s CSM was having an impact on her health, and proposed an adjustment short of that requested by the claimant by which: 99.1. The adjustment would be in place for 6 months initially after which its effectiveness would be reviewed. 99.2. Miss Cooper and Miss Stone would remain as line manager and CSM respectively; 99.3. The claimant could raise any concerns she had with Miss Cooper or Miss Stone directly with Mrs Pitcher; 99.4. An urgent OH referral would be made; 99.5. Mediation with Miss Stone could be considered to repair the relationship.

[100]On 1 March 2023, the claimant attended a face to face OH assessment with a female practitioner; that was the sixth OH appointment that the respondent had made for the claimant to attend since 25 November and the first which she agreed to attend. The claimant’s challenge to the decision and resignation

[101]On 6 March 2023, Mr Williams emailed a letter to Mrs Pitcher challenging her decision. In that letter, he argued that the claimant’s trust in Miss Pitcher had irretrievably broken down, in part because Miss Stone had not acceded to the claimant’s request for an apology in relation to the matters which had formed the subject of the to 2018 -2019 grievances, but alleging that the claimant felt victimised by her (although he asserted no basis for that) and was afraid of her. He stated that there was no prospect of the relationship between the two recovering and noted that the claimant could not be in the same room as Miss Stone without her anxiety being triggered.

[102]Mr Williams proposed Miss Kanaan or Racheal Campbell as alternatives to Miss Stone.

[103]Again, Mrs Pitcher drafted a response in conjunction with Miss Samuel, Miss Cooper and Miss McCool. In a response sent on 10 March 2023, Miss Pitcher responded to the points raised: 103.1. The assertion that Miss Stone had victimised the claimant was rejected as unevidenced, but Mrs Pitcher explained that she had proposed mediation because it appeared to her that the claimant’s concerns related to historic, rather than more recent actions; 103.2. Mrs Pitcher had to consider the impact of the proposed adjustment on the Team, not only on the claimant. 103.3. Miss Stone would not be replaced as the claimant’s CSM because: 103.3.1. there was no evidence of victimisation, which might support the need for a change, 103.3.2. the change would have a significant impact on the Team because of the work pressures that they were under; 103.3.3. the change would not remove the need for Miss Stone’s attendance at team meetings in her Directorate and so would not remove the potential impact on the claimant of Miss Stone attending such meeting. It would impose too great a burden on another Grade 6 if they were asked to step into Miss Stone’s shoes and attend team meetings in her stead, such a change was not feasible. 103.3.4. Mrs Pitcher offered to act in place of Miss Stone in the instance of Miss Cooper’s line manager responsibilities having to be filled because of annual leave or sickness absence on the latter’s part. 103.4. Mrs Pitcher asked the claimant to consider whether redeployment might therefore be a better option.

[104]On 10 March 2023, the respondent received the OH report. It reported that the claimant been working in circumstances of heightened anxiety for ‘the last few years’ and had in consequence double and triple checked her work before sending it; she had had regular nightmares relating to Miss Stone. It noted that the claimant regarded that her relationship with Miss Stone had irretrievably broken down. It opined that unless an alternative CSM was found the claimant would find it very difficult to return to her role.

[105]The claimant instructed that the report should not be shared with Mrs Pitcher. She was therefore unaware of its contents.

[106]On 17 March 2023, the claimant presented a grievance against Mrs Pitcher and Miss Stone complaining that Miss Pitcher’s rejection of her request to replace Miss Stone as her CSM was a breach of the duty to make reasonable adjustments, she made a complaint of bullying and harassment against Miss Stone. However, the grievance did not identify any act or conduct which the claimant alleged was in fact harassment or bullying, it merely asserted that she had “intervened in areas of my work and role which had already been agreed with my LM.” That allegation was, for the reasons we have given above, entirely baseless and inaccurate.

[107]In a response which was not provided until 12 October 2023, due to a lengthy and full investigation, that grievance was rejected. Specifically, the grievance conclusion was that there was no evidence of harassment by Miss Stone, and that her interventions represented “reasonable requests and challenges as a manager.” We agree with that conclusion. In relation to Mrs Pitcher, the grievance concluded that she had no knowledge of the impact of any interaction between the claimant and Miss Stone on the former’s mental health until February 2023, at which point she proposed adjustments which were reasonable. The claimant was encouraged to apply for other positions within the DVLA.

[108]It is worthy of note that in her grievance interview the claimant asserted that Miss Stone made the decision not to pay her full pay during her period of sickness absence. That allegation was entirely baseless and inaccurate; the decision was Mrs Pitcher’s as is clearly evidenced. There was not objectively reasonable basis for the claimant’s allegation against Miss Stone. The presentation of the claim

[109]The claimant initiated ACAS conciliation on 16 April and a certificate was issued on 23 May 2023. She presented her claim on 23 June 2023.

The Relevant Law

[110]The claimant brings a single claim under the Equality Act 2010 that the respondent failed to make reasonable adjustments (contrary to s.20 EqA 2010).

[111]The relevant law is contained in sections 39 and 20, 21 and Schedule 8 Part 3 of the EqA 2010 which provide respectively (in so far as is relevant) as follows: 39 – Employees and applicants (2) An employer(a) (A) must not discriminate against an employee of A’s (B)— (a) as to B’s terms of employment; (d) by subjecting B to any other detriment. s. 20 Duty to make adjustments. (1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A. (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) The second requirement is a requirement, where a physical feature 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. (5) The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put 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 provide the auxiliary aid. Schedule 8 Part 3 20 Lack of knowledge of disability, etc. (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) …

(b) [in any case referred to in Part 2 of this Schedule] , that …[a] disabled person has a disability and is likely to be placed at the disadvantage referred to in the first, second or third requirement. The reverse burden of proof

[112]The statutory tests are subject to the reverse burden of proof in section 136 EQA 2010 which provides: (2) If there are facts on which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision. Failure to make reasonable adjustments.

[113]A tribunal must consider:(1) the Provision, Criterion or Practice (“PCP”) applied by or on behalf of the employer, or the relevant physical feature of the premises occupied by the employer,

(2) the identity of non-disabled comparators (where appropriate), and

(3) the nature and extent of the substantial disadvantage suffered by the claimant (Environment Agency v Rowan

[2008] ICR 218

, EAT.)

[114]The burden of proving the PCP, the substantial disadvantage and the steps necessary to remove them rests on the claimant (see HM Prison Service v Johnson

[2007] IRLR 951

, confirmed in Project Management Institute v Latiff [2007] 579). What a claimant must do is raise the issue as to whether a specific adjustment should have been made, not prove a prima facie case of breach (see Jennings v Barts and the London NHS Trust EAT 0056/12) and the adjustment can be identified, in exceptional circumstances, during the hearing (PMI v Latiff). The Tribunal must, therefore, identify with some particularity the step which an employment should take to remove the disadvantage (Johnson) Substantial disadvantage

[115]Tribunals should “set out what it was about the disability of the [claimant] which gave rise to the problems or effects which put him at the substantial disadvantage identified”: Chief Constable of West Midlands Police v Gardner EAT 0174/11, para. 53. The steps to remove the disadvantage

[116]The word ‘steps’ must not be construed unduly restrictively, as the Court of Appeal made clear in Griffiths v Secretary of State for Work and Pensions

[2017] ICR 160

, CA at [65]. ‘In my judgment, there is no reason artificially to narrow the concept of what constitutes a “step” within the meaning of S.20(3). Any modification of, or qualification to, the PCP in question which would or might remove the substantial disadvantage caused by the PCP is in principle capable of amounting to a relevant step. The only question is whether it is reasonable for it to be taken.’

[117]A statutory Code of Practice on Employment has been published by the Equality and Human Rights Commission. Courts are obliged to take it into consideration whenever it is relevant: section 15(4). Chapter 6 is concerned with the duty to make reasonable adjustments. Paragraph 6.2 states: “The duty to make reasonable adjustments is a cornerstone of the Act and requires employers to take positive steps to ensure that disabled people can access and progress in employment. This goes beyond simply avoiding treating disabled workers … unfavourably and means taking additional steps to which non-disabled workers … are not entitled.”

[118]Paragraphs 6.23 to 6.29 of the Code give guidance as to what is meant by “reasonable steps” and paragraph 6.28 identifies some of the factors which might be taken into account when deciding whether a step is reasonable. They include the size of the employer; the practicability of the proposed step; the cost of making the adjustment; the extent of the employer’s resources; and whether the steps would be effective in preventing the substantive disadvantage.

[119]Tribunals are not under a duty to address every factor set out in the Code but would be wise to address directly those factors that they find to be relevant: Secretary of State for Work and Pensions (Jobcentre Plus) v Higgins

[2014] ICR 341

, EAT.

[120]A step which, on its own, may be ineffective might nevertheless be one of several adjustments which, when taken together, could remove or reduce the disadvantage experienced by the disabled person: e.g. Shaw and Co Solicitors v Atkins EAT 0224/08.

[121]So far as efficacy is concerned, it may be that it is not clear whether the step proposed will be effective or not. A proposed adjustment will not amount to a ‘reasonable’ adjustment if it has “no prospect” of removing the substantial disadvantage: Romec v Rudham

[2007] All ER (D) 04

(Sep), EAT per HHJ McMullen at [39]. However, when considering whether an adjustment is reasonable, it is sufficient for a tribunal to find that there would be “a prospect” (as opposed to “a good prospect” or “a real prospect”) of the adjustment removing the disadvantage (see Cumbria Probation Board v Collingwood (

UKEAT/0079/08/JOJ

) at [50] approved in Leeds Teaching Hospital NHS Trust v Foster [2011] EqLR 1075 at [17]). The focus of the tribunal must be on whether the adjustment would, or might, be effective in removing or reducing the disadvantage that the claimant is experiencing at work as a result of the disability and not whether it would, or might, advantage the claimant generally or, indeed, disabled people as a whole.

[122]It may still be reasonable to take the step notwithstanding that success is not guaranteed; the uncertainty is one of the factors to weigh up when assessing the question of reasonableness: see the observations of Lewison LJ in Paulley v First Group plc

[2014] EWCA Civ 1573

;

[2015] 1 WLR 3384

, paras 44-45

[123]An employer cannot make an objective assessment of the reasonableness of proposed adjustments/steps unless it appreciates the nature and extent of the substantial disadvantage imposed on the employee by the PCP, physical feature or lack of access to an auxiliary aid, and an adjustment to a work practice can only be categorised as reasonable or unreasonable in the light of a clear understanding as to the nature and extent of the disadvantage — Lamb v Business Academy Bexley EAT 0226/15.

[124]The duty to comply with the reasonable adjustments requirement under S.20 begins as soon as the employer can take reasonable steps to avoid the relevant disadvantage Abertawe Bro Morgannwg University Local Health Board v Morgan

[2018] ICR 1194

, CA. However, the duty is not ‘triggered’ unless and until the claimant indicates that he or she was intending or wishing to return to work NCH Scotland v McHugh EATS 0010/06 approved in Doran v Department for Work and Pensions EAT 0017/14. However, where the absence is caused by the respondent’s conduct (which is discriminatory) the duty may arise London Underground Ltd v Vuoto EAT 0123/09.

[125]There is no duty to consult in relation to the adjustment that should be made, but it will potentially jeopardise an employer’s position if it does not consult (see Tarbuck v Sainsbury’s Supermarkets Ltd

[2006] IRLR 664

, EAT): ‘Any employer would be wise to consult with a disabled employee in order to be better informed and fully acquainted of all the factors which may be relevant to a determination of what adjustment should reasonably be made in the circumstances. If the employer fails to do that, then he is placing himself seriously at risk of not taking appropriate steps because of his own ignorance. He cannot then pray that ignorance in aid if it is alleged that he ought to have taken certain steps and he has failed to do so.’ Discussion and Conclusions The PCPs

[126]The respondent conceded that it operated two PCPs which were applied to the claimant and the work force as a whole: 126.1. Placing Senior Business Change Managers within Miss Stone’s Counter Signing Management Chain, as opposed to another Grade 6 Manager; and 126.2. The practice of placing employees within a specific management chain determined by the respondent. Did the PCPs put the Claimant at a substantial disadvantage compared to someone without the Claimant’s disability, in that Ms Stone being her Counter Signing Manager resulted in the Claimant being unable to work and/or caused the Claimant to suffer a high degree of anxiety?

[127]The respondent put the claimant to proof of the disadvantage but did not positively argue or assert that the claimant was not put to that disadvantage.

[128]The claimant’s case was that those PCPs put the claimant at a substantial disadvantage because her anxiety condition caused her to experience a high degree of anxiety, caused by an almost pathological fear of being in close proximity to Miss Stone and/or of being managed by her, which became so acute that on 30 August 2022 the claimant had to take sickness absence.

[129]The evidence of the severity of the first of those symptoms was, we concluded, demonstrated by the following: 129.1. Our finding the claimant’s anxiety had a substantial adverse impact on her day to day activities generally certainly by the Summer of 2021, if not from April 2019; 129.2. The claimant had had to adopt what we regard as extreme coping mechanisms in order to attend work and operate whilst at work from the Summer of 2021 until her sickness absence began. In particular, she avoided attending meetings where she could see or be seen by Miss Stone (whether virtually or because of being in the same physical space), avoided being present on the same floor of the building as Miss Stone, and asked colleagues to conduct reconnaissance missions to facilitate that, and avoided taking sickness absence even when it was needed. Each of those was, in our view, powerful evidence of the nature of the disadvantage. 129.3. The content of the claimant’s emails to Miss Cooper 129.4. The claimant had had to ask her mental health nurse to call Miss Stone to report her sickness absence but could not do so herself.

[130]The fact that the claimant’s sickness absence was caused by the claimant’s anxiety is evidenced by: 130.1. The claimant becoming physically ill when it appeared that she concluded that she would have to meet with Miss Stone. 130.2. The content of the OH report in September 2022 indicating that she could not return to work whilst the managerial issue was unresolved. 130.3. The content of the OH report in March 2023 indicating that she had been working in a condition of heightened anxiety for the last few years, had had regular nightmares relating to Miss Stone, and viewed her relationship with her as being irretrievable and would find it very difficult to return to work whilst she was her CSM.

[131]The claimant has therefore proved to the civil burden that her placement in Miss Stone’s line management chain caused her a substantial disadvantage because of her disability, anxiety. What steps (the ‘adjustments’) could have been taken to avoid the disadvantage? The Claimant suggests: arranging for her to be ‘counter sign managed’ by someone other than Ms Stone.

[132]In argument before us, Mr Griffiths stated that claimant that had consistently argued that she was content for Miss Stone to remain in charge of the Directorate provided that she was replaced as the claimant’s CSM, and that was the adjustment she argued for. We do not accept that argument, it is not accurate.

[133]The position advanced by the claimant before the February 2023 decision was that either the respondent should remove Miss Stone from the CSM role for the Directorate, or it should replace Miss Stone with another Grade 6 who would act as CSM whilst Miss Stone remained CSM for the Business Change and Improving Team. That is reflected in the email that Miss Cooper sent to Mrs Pitcher on 21 February 2023 in which she framed the claimant’s two proposals for Mrs Pitcher to consider.

[134]That position was refined on 6 March 2023, through Mr Williams’ email to Mrs Pitcher, in which he communicated the claimant’s somewhat begrudging retraction of her position that it would only be acceptable if an individual from outside the Directorate were appointed as her CSM, and that she was prepared to consider Miss Kanaan or Miss Campbell as alternative CSMs.

[135]The issue for us is whether either step would have had ‘a prospect’ of removing the disadvantage; it does not have to be shown that they would have a real or a good prospect of removing the disadvantage. It is important to focus on the nature of the disadvantage in question here: namely, the claimant’s heightened anxiety state whilst in work and outside of it, which caused her to suffer nightmares, and which had led to a complete loss in trust with Miss Stone connected to a pathological fear that Miss Stone would “interfere” in her management and exert the managerial power she had to the claimant’s detriment. When her symptoms when acute the claimant required sick leave.

[136]That disadvantage had its genesis in the claimant’s grievances in 2018 and 2019 and its driving force was the claimant’s anxiety condition. In the claimant’s own words, the symptoms of that condition had been ‘extremely bad’ since August 2022 when it appeared that Miss Stone might conduct a performance review meeting remotely with the claimant. The claimant regarded that very suggestion as ‘incredulous’ and one she ‘could not believe’, yet – to demonstrate the extent of the hold the claimant’s anxiety had on her rational mind at that stage – Miss Stone had only put the date for a meeting in the diary, she had not stipulated that she or Miss Cooper would conduct it. The claimant’s reaction to that was described as being akin to PTSD by those treating her.

[137]We were satisfied that the claimant’s fear of Miss Stone was such that she could not accept any proposal that permitted Miss Stone to have any possible involvement in any form in the claimant’s management. That was why she initially asked for a grade 6 from outside the Directorate to be appointed in her place. In her evidence to us, Miss Pitts described how she regarded Ms Campbell as being ‘tainted’ and how she “could not trust her in the same way” that she had before, because she suspected that Miss Stone would have spoken to Ms Campbell. Put simply, we concluded that the claimant would regard any mechanism which permitted possible contact between Miss Stone and any proposed CSM as being unacceptable, because of her wholly irrational belief based in her anxiety condition that Miss Stone would seek to use every opportunity and avenue to exercise her power to the claimant’s disadvantage because she bore a grudge against her. Proposed adjustment (i): A Grade 6 appointment from inside the Directorate to replace Miss Stone

[138]In her evidence to us, the claimant accepted that if an external Grade 6 were be appointed as her CSM, they would need to liaise with Miss Stone in relation to their management of the claimant and in relation to matters connected to the broader management and strategic aims of the Directorate. Having made that concession, the claimant sought to argue that she would accept an internal appointee as a replacement CSM because “that person would link in to Miss Stone and have a more balanced discussion” in relation to performance grading and would ensure that it was based on evidence. That she suggested, would provide her with the reassurance she required and would enable her to return to work because she would not have to see or encounter Miss Stone.

[139]For the reasons we have given above, viewed objectively, we do not accept that that step would have any prospect of removing the disadvantage. The claimant would continue to see Miss Stone’s spectre in every shadow just as she had when Miss Cooper was appointed (see paragraph 46 above), when she first considered Miss Campbell as a replacement, and when she refused to permit documents relating to her health condition to be disclosed to that part of the respondent’s HR function which fell within Miss Stone’s directorate (see paragraph 79 above). A prime example of the pathological fear was the claimant’s insistence in the grievance in March 2023 that Miss Stone had harassed her and had influenced the decision that she should not be paid full pay for the period of her sick leave (paragraphs 105 and 107). Miss Stone had no role whatsoever in those decisions. Proposed adjustment 2: A Grade 6 appointment from outside the Directorate to replace Miss Stone

[140]We accepted the respondent’s evidence that any external Grade 6 who was appointed as the claimant’s CSM would need to liaise with Miss Stone for the following purposes: 140.1. When conducting performance review descriptor moderations (as described in the ‘Background’ at paragraph 29.3 above) – if they were tasked with moderating the claimant’s descriptor they would require an understanding the Directorate’s strategic direction and performance generally, and of the other team members’ descriptors specifically, to determine whether the claimant’s should be moderated. That would inevitably require discussion with Miss Stone. If the replacement CSM did not moderate the claimant’s performance descriptor, then Miss Stone would have to do so as she did in 2022. The claimant could not and would not accept such direct involvement of Miss Stone, just as she could not in 2022. 140.2. When considering any application for training from the claimant – because training needs were identified at the outset of the financial year by Miss Stone (as we have described above at paragraph 29.4). 140.3. If the claimant were to make a flexible working request (see paragraph 29.5)

[141]Those were all matters which (to adopt Mr Griffiths’ words) the claimant regarded as having a significant impact on her employment. We are satisfied that she could not and would not accept any possible involvement or connection to Miss Stone in such processes. That is evidenced by her referring to Miss Stones perceived involvement in those matters as ‘harassment’ in her grievance in March 2023.

[142]We therefore concluded that objectively viewed the adjustment of appointing a Grade 6 from outside the Directorate would have no prospect of the removing the disadvantage.

[143]The only step which objectively had any reasonable prospect of removing the disadvantage in our view was if the respondent redeployed Miss Stone from the Directorate all together, such that there could be no prospect whatsoever that she could not be involved in any way in any aspect of management of the claimant. However, the claimant would still, we suspect, see connections were there were none between the replacement and Miss Stone (i.e if they had ever met, or were likely to, or had ever spoken or worked on a project together). 2.4 Was it reasonable for the Respondent to have to take those steps and when? [The respondent asserted that it was not as(a) the step would not remove the advantage and

(b) the steps were unreasonable in any event]

[144]Given that neither step would have any prospect of removing the disadvantage, it follows that it was not objectively reasonable for the respondent to have to take either step.

[145]We add only that the disruption caused to the day to day running of the Directorate if the respondent had to appoint an external Grade 6 would be such it would not be practical to make it, and it would not in any event be sufficiently effective at removing the disadvantage to require it to be made.

[146]We unhesitatingly conclude, in light of the pressures on the Directorate, that it would not be practical to remove Miss Stone from the Directorate all together. The disruption caused to the directorate and the loss of Miss Stone’s skill set, strategic knowledge and experience would be profound. It would not have been a reasonable step for the respondent to take and we note that it was not a step which the claimant argued for with any force in these proceedings. It had effectively been abandoned as a proposal for all intents and purposes by March 2023. Did the respondent have actual or constructive knowledge of the disability and the disadvantage it caused?

[147]We address this issue for completeness sake, given our conclusion above in relation to the reasonableness of the proposed adjustment.

[148]Neither the respondent’s initial Grounds of Resistance nor its amended Grounds of Resistance pleaded any position in respect of the respondent’s knowledge of the disability or the disadvantage said to be caused by it. Mr Allsop clarified, when asked, that the respondent put the claimant to proof of knowledge of the disadvantage caused by the disability, but accepted that it knew of the disability.

[149]The relevant times for the assessment of that knowledge are at the point at which the respondent rejected the claimant’s requests for the adjustment of a change to her CSM, namely on 23 February and 10 March 2023.

[150]We are persuaded that the respondent had actual knowledge of the disability and the substantial disadvantage caused by the impairments resulting from it at each of those times because the respondent knew of both disability and its effect before either decision was made for the following reasons: 150.1. The claimant had discussed her underlying anxiety and fear of Miss Stone’s involvement with her management with Miss Moore in October 2021. 150.2. In October 2021, the claimant had further discussed those concerns with Miss Cooper, and specifically discussed the coping mechanisms she used to enable her to continue to work. Those coping mechanisms put Miss Cooper on notice of the substantial disadvantage that the claimant experienced. 150.3. There was further discussion between Miss Cooper and the claimant of those matters on 25 January 2022. 150.4. The telephone call from the claimant’s mental health nurse to Miss Stone on 30 August 2022 put her on notice that the claimant’s impairment was such that she could not email Miss Stone directly. 150.5. The claimant’s note for the OH practitioner, which was drafted in September 2022 and which was seen by Miss Kanaan at that time, and by Mrs Pitcher in February 2023, included the claimant’s description that she was “always having to think about how [she] manage[d] and mitigate[d] things” because of her fear that Miss Stone would seek to use them against her. 150.6. The claimant’s email of 4 September 2022 to Miss Cooper provided considerable detail of the PTSD type symptoms she was experiencing, her underlying fear and lack of trust in Miss Stone, and its role in her sickness absence. Miss Cooper did not read it until 20 October 2022, and forwarded that email to Miss Pitcher and others in February 2023. 150.7. The September 2022 OH report identified the claimant’s underlying anxiety condition as a disability and noted her inability to return to work due to the ‘previous managerial relationship difficulties’ she perceived. 150.8. The claimant’s fit note of 20 October 2022 cited work-related stress and anxiety (which Mrs Pitcher received on 21 February 2023) 150.9. On 1 November 2022, Mr Williams emailed Miss Kanaan notifying her that the claimant experienced anxiety as a result of Miss Stone’s position as her CSM. 150.10. In January 2023, Miss Cooper reported to Carys Samuel and Rebecca Seager that the claimant had stated she had had to take sickness absence because the thought that Miss Stone was her CSM was making her ill. 150.11. On 17 January 2023, at the meeting attended by the claimant, Mr Williams, Miss Cooper and Miss McCool, Mr Williams connected that issue (in a broad sense) with the claimant’s request for reasonable adjustments, which included the appointment of a new CSM for the claimant. (Miss Pitcher received Ms McCool’s tabular document which had been prepared for the meeting and the minutes of the meeting itself on 21 February 2023). 150.12. On 6 March 2023, Mr Williams’ email informed the respondent of the claimant’s view that the was no prospect of the relationship between her and Miss Stone being prepared, and she could not be in the same room as her without triggering an anxiety response.

[151]In summary, the respondent knew of the underlying disability, knew that the claimant’s consequent fear of Miss Stone had caused her to adopt coping mechanisms, which demonstrated that the impact of that fear was more than trivial on her working practices when she was at work, and that it had caused her to take sickness absence, and (it was reported) had caused her to experience nightmares and to develop PTSD symptoms, and therefore had had more than a trivial impact on her ability to attend work.

[152]Mr Allsop sensibly conceded that the respondent as a corporate entity had actual knowledge of each of those matters, notwithstanding that at times the claimant had complicated matters by insisting that the information was restricted to certain individuals and not disclosed to others.

Conclusion

[153]The claimant was put at a substantial disadvantage by the admitted PCPs, but none of the proposed adjustments had any prospect of removing the disadvantage.

[154]The claim that the respondent breached its duty to make reasonable adjustments is not well founded and is dismissed. Approved by