Mrs L Protheroe v Cwm Taf Morgannwg University Local Health Board: 1600847/2022 and 1600014/2023

EMPLOYMENT TRIBUNALS

Case No 1600847/2022, 1600014/2023

Between

Mrs L ProtheroeClaimant

Cwm Taf Morgannwg University Local Health BoardRespondent

Before

Employment Judge R Harfield

Members

Mrs M Humphries

Ms M Walters

Ms Churchhouse (instructed by Counsel) for claimant

Ms Winstone (instructed by Counsel) for respondent

Date 8 September 2023

JUDGMENT

The unanimous decision of the Employment Tribunal is that:• The Claimant resigned and was not dismissed. The complaint of constructive unfair dismissal does not succeed and is dismissed;

• Part of the Claimant’s disability at the material time included an impairment of anxiety and depression;

• The complaints of failure to make reasonable adjustments, discrimination arising from disability and victimisation do not succeed and are dismissed.

REASONS

[1]Introduction1.1 These are claims for disability discrimination, victimisation and constructive unfair dismissal. Case number 1600847/2022 was presented on 20 July 2022. 1600014/2023 was presented on 5 January 2023.

1.2 A case management hearing took place before EJ Jenkins on 9 January 2023 [88]. At that point the second claim had only just been issued. A direction was made that the Respondent set out any request for further particulars at the same time as filling their ET3 for the second claim. EJ Jenkins consolidated the cases and listed both cases for a liability only hearing. The parties were directed to agree a List of Issues. Other orders were made to get the claims ready for that liability hearing. A “catch up” case management hearing took place before EJ McLeese on 28 April 2023 to ensure the parties were ready for this hearing.

1.3 We heard evidence from the following witnesses. The job titles identified are as at the time of the events in question:

• The Claimant (Health Visitor);

• Sara Mason (Head of Workforce)

• Trudy Jones (Team Leader)

• Allyson Allman (Senior Nurse for Rhondda, Cynon and Taff Ely)

• Bethan Davies (HR Adviser)

• Michael Bartlett (Assistant HR Business Partner)

• Christopher Coslett (Directorate Manager for Children Young People and CAHMS)

• Karen Wright (Assistant Director of Policy, Governance and Compliance).

1.4 We had before us a bundle of documents extending to 1421 pages. Numbers in brackets [ ] in this Judgment are a reference to those page numbers. There was a second bundle (Bundle B) extending to 79 pages. We had a witness statement bundle. We had a cast list, a chronology (largely agreed but with unagreed parts identified by italics), an agreed List of Issues and a proposed hearing timetable. We had a proposed reading list from the Claimant’s counsel.

1.5 Employment Judge McLeese had identified a dispute about the admissibility of parts of the Claimant’s witness statement and the documents placed within Bundle B. We were directed not to read the disputed material in advance of the hearing. EJ McLeese directed the parties to file legal arguments in advance of the first day of the hearing. The Claimant’s counsel did so, albeit there was a limit as to what could be said given it was the Respondent’s application. The Respondent did not do so, albeit Ms Winstone explained the personal reasons lying behind this. However, with no written legal argument and being prevented from looking at the material concerned, we struggled to understand what the claimed problem was with the material and the reasons(s) why it was being said the impugned material was inadmissible. It was difficult for us to follow and make a decision simply on the basis of oral submissions that seemed to cover a variety of points and legal principles.

1.6 We ultimately identified that if the Respondent were pursuing their application then Ms Winstone needed to set out the application in writing supported by written legal argument. However, we expressed serious concerns about the impact this dispute had on the tribunal’s reading time and in turn upon cross examination time. We emphasised that when deciding this case we would be deciding the points in the List of Issues and that the parties could limit cross examination to these issues and not feel compelled to traverse other topics. The Respondent ultimately conceded that we could look at the impugned material and the point could be picked up in closing submissions. In fact, admissibility points were not raised with us in closing.

1.7 We received written and oral closing submissions from both counsel. For reasons of expediency we do not set out a summary of those submissions. We did, however, take them fully into account in our deliberations and they are incorporated at the appropriate points in our findings of fact and conclusions below.

1.8 We enquired at the start of the hearing what adjustments the Claimant would require. Ms Churchhouse asked for breaks approximately every 45 minutes when the Claimant was giving evidence. This was accommodated. No other requests for adjustments were made for the Claimant or any other participants. In this Judgment those who gave evidence are identified by name. Other individuals are referred to by initial as they are not individuals who were able to give their account to us, some of whom allegations were made against in the course of the hearing. Employment Judge Harfield apologises for the delay in delivering this Reserved Judgment. The panel were unable to complete deliberations within the allotted time but were fortunately able to secure an additional chambers day and complete deliberations relatively quickly. The delay since has been caused by the pressure of other judicial work and personal reasons on the part of EJ Harfield.

[2]The issues to be decided 2.1 We were provided with an agreed List of Issues as follows (on liability issues): “Preamble

[1]The Claimant brings the following claims:1.1 Discrimination Arising in Consequence of Disability (s15 EqA 2010)

1.2 Victimisation (s27 EqA 2010)

1.3 Failure to Make Reasonable Adjustments (ss20 &21 EqA 2010)

1.4 Constructive Unfair Dismissal (s98 ERA 1996) Disability (s6EqA 2010)

[2]Can the Claimant prove on the balance of probabilities that she suffered from a physical or mental impairment at the material time?

[3]The Claimant relies on the physical and/or mental impairments of:3.1 Autoimmune Thyroid disease

3.2 Autoimmune Hepatitis

3.3 Fibromyalgia

3.4 Osteoporosis

3.5 Anxiety

3.6 Depression

[4]Can the Claimant prove on the balance of probabilities that the impairments had a substantial and long-term adverse effect on her ability to carry out normal day-to-day activities at the material time?

[5]In the alternative, did the Respondent perceive the Claimant to have a disability?

[6]The Respondent admits at [60] of the Grounds of Resistance that the Claimant’s conditions set out at 3.1 to 3.4 amounted to a disability at the relevant time. [The Grounds of Resistance are silent as to whether the Respondent accepts that the Claimant had anxiety and depression at the relevant time. After the first Case Management Hearing the Respondent wrote to the Tribunal and Claimant indicating it does not admit that the Claimant’s alleged anxiety and/or depression amounted to a disability and/or that it had knowledge of the same]. Discrimination Arising in Consequence of Disability

[7]Can the Respondent prove on the balance of probabilities that it did not know and could not reasonably be expected to know that the Claimant had the alleged disabilities?

[8]The Claimant’s position is that the Grounds of Resistance to the first claim do not plead a legitimate aim. The Respondent says that its dealings with the Claimant were a proportionate means of achieving a legitimate aim, which is(a) the proper management of disabled employees enabling them to return to the workplace; and

(b) the proper management of employees on long term sickness absence, enabling them to return to the workplace.

[9]Do the following arise in consequence of a proven disability?9.1 The Claimant’s need for different treatment around her working arrangements including the need for reasonable adjustments;

9.2 The Claimant’s sickness absence and attendance record;

9.3 The Claimant’s inability to work full time.

[10]If so, was the Claimant subject to the following treatment by the Respondent:10.1 From 22 July 2019 onwards, delaying in arranging occupational health support and advice;

10.2 From 29 July 2019 onwards, failing to make/delaying in making reasonable adjustments, including adjustments that had been recommended by the Occupational Health Adviser;

10.3 From 29 July 2019 onwards, the failure by Sara Mason, Head of Workforce, and the respective Heads of Nursing Staff, to brief staff and/or organise the Claimant’s records in a manner which properly recorded her prior treatment and allowed her role to be fully reinstated;

10.4 Between 29 July 2019 to 10 February 2021, delaying in implementing the Claimant’s new expense arrangements and then withdrawing those that had been previously agreed;

10.5 From 6 March 2020 to 11 May 2021, Chris Cozlett shutting down the grievance at stage 2 and refusing to resolve the matter including by sending a Final Outcomes letter.

10.6 16 April 2021 Chris Cozlett stating that it was not for the Board to sort out her line management.

10.7 Karen Wright stating on or about 1st July 2022 that she was consciously ignoring any further progress with the Claimant’s grievance;

10.8 From 6 August 2021 onwards, not progressing the Claimant’s appeal against the grievance findings;

10.9 From 18 February 2022, not implementing the findings where it was found the grievance was upheld;

10.10 From 6 March 2020 failing to use the All Wales Grievance Policy and take the required steps to resolve the Claimant’s grievances, a failure which continued to 6 October 2022.

10.11 From 13 April 2022 to 6 October 2022, effectively abandoning the Claimant and treating her as if she was no longer employed; including not replying to her continuing not to make reasonable adjustments.

10.12 On or about 6 October 2022, dismissing her (constructively) or otherwise.

[11]If so, can the Claimant prove on the balance of probabilities that this treatment because of something arising in consequence of disability?

[12]If so, can the Respondent prove on the balance of probabilities that any such treatment was a proportionate means of achieving a legitimate aim? 12.1 The Respondent will say that its dealings with the Claimant were a proportionate means of achieving a legitimate aim, which is(a) the proper management of disabled employees enabling them to return to the workplace; and

(b) the proper management of employees on long term sickness absence, enabling them to return to the workplace.[The Claimant’s position is that the Grounds of Resistance to the first claim do not plead a legitimate aim].

[13]Did the Claimant do a ‘Protected Act’ pursuant to section 27(2) of the EqA when she lodged a grievance/attended grievance meetings in March 2020, 4 October 2020, 16 November 2020, 12 January 2021, 12 April 202, 16 April 2021,6 August 2021 and 23 November 2021 against the Respondent and/or when she commenced Tribunal proceedings against the Respondent?

[14]If so, was the Claimant subjected to a detriment or detriments by the Respondent contrary to section 27 of the EqA because she had done a protected act by:14.1 From 29 July 2019 onwards delaying in arranging occupational health support and advice;

14.2 From 29 July 2019 onwards, not making and/or delaying in making reasonable adjustments, including adjustments that had been recommended by the Occupational Health Adviser and/or failing to make those on a long term basis;

14.3 From 29 July 2019 onwards, Ms Mason and the respective Heads of Nursing, failing to brief staff and/or organise the Claimant’s records in a manner which properly recorded her prior treatment and allowed her role to be fully reinstated and the COT3 terms to be fully implemented;

14.4 Between 29 July 2019 and 10 February 2021, delaying in implementing the Claimant’s new expense arrangements/her new base and then withdrawing those arrangements that had been previously agreed;

14.5 From 6 March 2020 to 11 May 2021, Chris Cozlett shutting down the grievance at stage 2 and refusing to resolve the matters raised, including by sending a Final Outcomes letter.

14.6 On 16 April 2021 Chris Cozlett stating that it was not for the Board to sort out reasonable adjustments and that the Claimant should sort them out herself with her line management;

14.7 On 16 April 2021, Ms Jones advising the Claimant that she had been advised by HR that the excess mileage allowance was “not applicable” to her

14.8 Karen Wright stating on or about 1st July 2022 that she was consciously ignoring any further progress with the Claimant’s grievance;

14.9 From 6 August 2021, not progressing the Claimant’s appeal against the grievance findings;

14.10 From 18 February 2022, not implementing the findings where it was found the grievance was upheld;

14.11 From 6 March 2020 failing to use the All Wales Grievance Policy and take the required steps to resolve the Claimant’s grievances, a failure which continued to 6 October 2022.

14.12 From 13 April 2022 to 6 October 2022, effectively abandoning the Claimant and treating her as if she was no longer employed; including not replying to her continuing not to make reasonable adjustments

14.13 On 6 October 2022, dismissing the Claimant (constructively) or otherwise. Failure to Make Reasonable Adjustments (ss20 and 21 EqA 2010)

[15]Can the Respondent prove on the balance of probabilities that it did not know of the Claimant’s disability and could not reasonably have been expected to know of it?

[16]The Respondent admits that the Claimant’s conditions set out at 3.1 to 3.4 amounted to a disability at the relevant time. [The Grounds of Resistance are silent as to whether the Respondent accepts that the Claimant had anxiety and depression at the relevant time. After the first Case Management Hearing the Respondent wrote to the Tribunal and Claimant indicating it does not admit that the Claimant’s alleged anxiety and/or depression amounted to a disability and/or that it had knowledge of the same].

[17]If not, can the Claimant prove on the balance of probabilities that the Respondent applied the following PCPs to the Claimant?17.1 the level of workload required of similar staff (full time) and the time allocated to perform caseload duties;

17.2 the working hours (full time) required for similar staff;

17.3 The number of cases allocated to a person working a flying start shift and/or a generic health visitor workload;

17.4 the amount of travel time allowed by mobile staff;

17.5 the expenses for mobile staff and/or the deemed base site for expense purposes;

17.6 the arrangements with regard to offering occupational health support and advice for staff;

17.7 the line management arrangements including who the senior nurse line manager of a health visitor is; and/or

17.8 The Board grievance procedures for resolving employee matters and disputes internally.

[18]Can the Claimant prove on the balance of probabilities that disabled people were placed at a Group Disadvantage in comparison to non disabled people by the application of the PCP? (Group Disadvantage) [The parties agreed at the start of the hearing this was included in error and can be ignored]

[19]Can the Claimant prove on the balance of probabilities that she was placed at a substantial disadvantage in comparison to a non-disabled person by the application of the PCP? (Individual Disadvantage) 19.1 The Claimant relies on the alleged disadvantage of:19.1.1 Reducing her ability to attend work

19.1.2 making her working day more difficult

19.1.3 Reducing her ability to resolve workplace issues;

19.1.4 Causing fatigue, harm and deterioration to her health/impairments

[20]Can the Respondent prove on the balance of probabilities that it did not know

[21]Can the Respondent prove on the balance of probabilities that it took such 21.1 The Claimant relies on the following steps that she alleges would have been reasonable for the Respondent to take (continuing to 6 October 2022):21.1.1 Reducing/ and/or not delaying in reducing the Claimant’s case load (no more than 150 for the Generic Health Visitor Caseload and 66 for a “Flying Start Caseload”

21.1.2 Additional time to undertake caseload duties

21.1.3 Increasing the round-trip allowance of approximately 40 minutes for travel time to Flying Start Treharris and the 20 miles round trip travel expenses to Flying Start Treharris to reflect the move of base arose through no fault of the Claimant. In essence permitting extra travel time due to a change in base and

21.1.4 moving the Claimant’s base of work from Keir Hardie Health Park to Treharris Flying Start Centre;

21.1.5 Arranging a prompt Occupational Health assessment/support meeting and implementing the Occupational Health recommendations on the necessary reasonable adjustments swiftly;

21.1.6 Changing senior nurse/line management so that the person previously implicated in the Claimant’s prior case, Ms Hannington was not involved in her line management;

21.1.7 Briefing staff and/or organising the Claimant’s records in a manner which properly recorded her prior treatment and allowed her role to be fully reinstated;

21.1.8 Implementing the Claimant’s new expense arrangements promptly and not then withdrawing those that had been previously agreed;

21.1.9 Reasonably adjusting the grievance procedures including:

(a) Not shutting down the grievance at stage 2 and refusing to resolve the matter further but continuing to seek to resolve her grievances;

(b) Taking reasonable steps to explore and facilitate her return to work from April 2022 after the Grievance Stage 3 decision and/or implementing the grievance findings in a meaningful way;

(d) Meeting with the Claimant after the Grievance Stage 3 decision and arranging a return to work plan.

(e) Resolving grievances promptly Constructive Unfair Dismissal (s98 ERA 1996)

[22]Can the Respondent establish a fair reason for dismissal? The Respondent says that the Claimant could and would have been fairly dismissed for capability.

[23]Was the breach of express terms of contract or the implied term of mutual trust and confidence sufficiently important to justify the Claimant resigning or else the last in a series of incidents justifying her leaving? The Tribunal will need to decide:a. Whether the Respondent behaved in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the Claimant and the Respondent; and

b. Whether it had reasonable and proper cause for doing so.

[24]The Claimant relies on the following conduct which she says amounts to a breach of express and implied terms:24.1 The failure to provide the reasonable adjustments referred to above

24.2 Engaging in discrimination arising from disability referred to above

24.3 Engaging in victimization referred to above

[25]If so, did the Respondent’s breach cause the Claimant to resign?

[26]Did she resign promptly in response to any breaches found?

[27]Did the Claimant waive the alleged breach of contract and accordingly affirm the contract?

[28]If the Tribunal concludes that the Claimant was dismissed in accordance with s95(1)(c) ERA 1996, the Claimant contends that her dismissal was unfair contrary to s94(1) ERA 1996.” 2.2 The tribunal clarified with the Claimant’s counsel at the start of the hearing whether the constructive unfair dismissal complaint was dependent upon the tribunal finding that each event complained about was discriminatory/victimisation, given the way in which paragraph 24 of the List of Issues is expressed. Ms Churchhouse confirmed that was not the case and that it was the underpinning factual complaints that were relied upon as breaches of trust and confidence. Ms Winstone, having reviewed the pleadings, did not take issue with this. Ms Churchhouse in her written closing submissions confirms that the Claimant is relying upon the individual acts set out at paragraphs 14.1 to 14.13 in the List of Issues. 2.3 At the start of the hearing we also dealt with an application to amend by the Respondent to rely upon the legitimate aims set out in their grounds of resistance to the second claim as also being the legitimate aims relied upon in the first claim (for the section 15 complaints). Having heard oral submissions we granted the amendment. Oral reasons were given at the time. In short, we were satisfied the balance of prejudice and hardship fell in favour of granting the amendment. We could not identify real forensic prejudice to the Claimant bearing in mind the complaints in the second claim mirror those in the first. 2.4 We should also add that the Respondent’s ET3 responses raise time limit issues for the discrimination complaints which had been omitted from the List of Issues. The time limit issues were covered by both counsel in their written closing submissions. 3. Relevant legal principles Unfair Dismissal Is there a dismissal?3.1 Section 94 of the Employment Rights Act 1996 (“ERA”) provides the right for an employee not to be unfairly dismissed by his employer. Section 95 sets out the circumstances in which an employee is dismissed which include where: The employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.

3.2 In the field of constructive unfair dismissal, case law has established the following principles:3.2.1 The employer must have committed a repudiatory breach of contract. A repudiatory breach is a significant breach going to the root of the contract. This is the abiding principle set out in Western Excavating v Sharp

[1978] ICR 221

3.2.2 A repudiatory breach can be a breach of the implied term in every contract of employment that the employer shall not without reasonable and proper cause conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee (Woods v WM Car Services (Peterborough) Ltd

[1981] IRLR 347

and Malik v Bank of Credit and Commerce International SA

1997 ICR 606

, HL.)

3.2.3 Whether an employer has committed a breach of that implied term must be judged objectively. It is not enough to show merely that an employer has behaved unreasonably. The line between serious unreasonableness and a breach is a fine one. A repudiatory breach does not occur simply because an employee feels or believes they have been unreasonably treated. Likewise the test does not require the tribunal to make a factual finding as to what the actual intention of the employer was as the employer’s subjective intention is irrelevant (when considering the test of likely to destroy or seriously damage).

3.2.4 The employee must leave, in part at least, because of the breach. However, the breach does not have to be the sole cause. There can be a combination of causes; the breach must have played a part (see Nottingham County Council v Meikle

[2005] ICR 1

and Wright v North Ayrshire Council

UKEAT/0017/13

3.2.5 The employee must not waive the breach or affirm the contract by delaying resignation too long. (We return to the law governing the principle of affirmation in our discussions and conclusions section of this Judgment below.)

3.2.6 There can be a breach of the implied term of trust and confidence where the components relied upon are not individually repudiatory but which cumulatively consist of a breach of that implied term.

3.2.7 In appropriate cases, a “last straw” doctrine can apply. If the employer's act which was the proximate cause of an employee's resignation was not by itself a fundamental breach of contract the employee can rely upon the employer's course of conduct considered as whole in establishing that he or she was constructively dismissed. However, London Borough of Waltham Forest v Omilaju

[2005] IRLR 35

tells us that the “last straw” must contribute, however slightly, to the breach of trust and confidence. The last straw cannot be an entirely innocuous act or be something which is utterly trivial. Moreover, the concepts of a course of conduct or an act in a series are not used in a precise or technical sense; the act does not have to be of the same character as the earlier acts.

3.2.8 In Kaur v Leeds Teaching Hospitals NHS Trust

[2018] EWCA Civ 978

the court of appeal set out the questions that the tribunal must ask itself in a “last straw” case. These are:

(a) What was the most recent act (or omission) on the part of the employer which the employee says caused or triggered his or her resignation?

(b) Has he or she affirmed the contract since that act?

(d) If not, was it nevertheless a part of a course of conduct comprising several acts and omissions which viewed cumulatively amounted to a (repudiatory) breach.

(e) Did the employee resign in response (or partly in response) to that breach?

3.3 In Abbey National v Fairbrother

[2007] UKEAT 0084

06 1201 it was said employers have a measure of discretion in deciding how to conduct a disciplinary procedure or a grievance procedure. It was held an employer must not act irrationally or perversely in the course of such procedures. An employer must not take account of irrelevant material or fail to take account of relevant material. The employer must not take decisions that no reasonable employer would take. It was also said that the conduct of a grievance procedure should also be looked at as a whole and only if it has been conducted in a manner which no reasonable employer would have conducted it can it be said the employer did not have reasonable and proper cause for his conduct.

3.4 In WA Goold (Pearmak) Ltd v McConnell and anor

[1995] IRLR 516

it was said there is an implied duty to reasonably and promptly afford a reasonable opportunity to employees to obtain redress of any grievance they may have. But in most cases the obligation tends to be considered through the lens of a complaint about breach of trust and confidence and indeed that is the pleaded contractual term in this case. In Blackburn v Aldi Stores

[2013] IRLR 846

EAT it was held that a failure to adhere to a grievance procedure is capable of amounting to or contributing to a breach of the implied term of trust and confidence, but whether it does is a matter for the tribunal to assess on the facts. For example, the fact that an indicative timetable is not met will not necessarily contribute to or amount to a breach of the term of trust and confidence. On the other hand, a wholesale failure to respond to a grievance may amount to or contribute to such a breach, when assessed against the relevant test. Fairness of a dismissal

3.5 If a constructive dismissal is found the tribunal must go on to consider the fairness of the dismissal. Section 98 ERA provides: “(1) In determining for the purposes of this part whether the dismissal of an employee is fair or unfair, it is for the employer to show – (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) for some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. (2) A reason falls within this subsection if it – (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do…, (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) – (a) depends upon whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.” Disability under the Equality Act 2010 The legislative test

3.6 Under section 6 of the Equality Act 2010 a person (P) has a disability if – (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long term adverse effect on P’s ability to carry out normal day to day activities.

3.7 Under section 212(2) substantial means “more than minor or trivial.”

3.8 Under paragraph 2(1) of Part 1 of Schedule 1 to the Equality Act, the effect of an impairment is long term if – (a) it has lasted for at least 12 months, (b) is likely to last for at least 12 months, or (c) it is likely to last for the rest of the life of the person affected.

3.9 Under paragraph 5(1) an impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day to day activities if measures are being taken to treat or correct it and, but for that, it would be likely to have that effect. “Measures” include medical treatment. When determining substantial adverse effect on normal day to day activities, we therefore have to assess the effects of any condition absent mitigation by means of medication or other medical treatment.

3.10 “Likely” should be taken to mean “could well happen.”

3.11 We should also take into account, where relevant, the “Guidance for matters to be taken into account in determining questions relating to the definition of disability” [“the Guidance”].

3.12 It was accepted in Ministry of Defence v Hay

UKEAT/0571/07/CEA

that it is possible to be disabled due to the cumulative effect of more than one impairment. The employment appeal tribunal adopted an approach to “impairment” from earlier case law identifying that the term should be given its ordinary and natural meaning and that it is not necessary to consider the cause of it. Further it was said that “the essential question in each case is whether, on sensible interpretation of the relevant evidence, including the expert medical evidence and reasonable inferences that can be made from all the evidence, the applicant can fairly be described as having a physical or mental impairment.”

3.13 The Guidance makes the same point in saying: “B6 A person may have more than one impairment, any one of which alone would not have a substantial effect. In such a case, account shall be taken of whether the impairments together have a substantial effect overall on the person’s ability to carry out normal day-to-day activities. For example, a minor impairment which affects physical coordination and an irreversible but minor injury to a leg which affects mobility, when taken together, might have a substantial effect on the person’s ability to carry out certain normal day-to-day activities. The cumulative effect of more than one impairment should also be taken into account when determining whether the effect is long term…” Burden of Proof under the Equality Act 2010

3.14 The Equality Act 2010 provides for a shifting burden of proof. Section 136 so far as material provides: “(2) if there are facts from which the Court (which includes a Tribunal) 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.”

3.15 Consequently, it is for a Claimant to establish primary facts from which the tribunal can reasonably conclude that there has been a contravention of the Equality Act. If the Claimant establishes those facts, the burden shifts to the Respondent to show that there has been no contravention by, for example, identifying a different reason for the treatment.

3.16 In Hewage v Grampian Health Board

[2012] IRLR 870

the supreme court approved guidance previously given by the court of appeal on how the burden of proof provisions should apply. That guidance appears in Igen Limited v Wong

[2005] ICR 931

as supplemented in Madarassy v Nomura International Plc

[2007] ICR 867

. Although the concept of the shifting burden of proof involves a two-stage process, that analysis should only be conducted once the tribunal has heard all the evidence. Furthermore, in practice if the tribunal is able to make a firm finding as to the reason why a decision or action was taken, the burden of proof provision is unlikely to be material. Discrimination arising from disability

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

3.18 The approach to determining Section 15 claims was summarised by the employment appeal tribunal in Pnaiser v NHS England and Another

[2016] IRLR 170

. This includes:3.18.1 The first stage is to assess the “because of”. In determining what caused the treatment complained about or what was the reason for it, the focus is on the reason in the mind of A. This is likely to require an examination of the conscious or unconscious thought process of A;

3.18.2 The “something” that causes the unfavourable treatment need not be the main or sole reason, but must at least have a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it;

3.18.3 Motives are not relevant;

3.18.4 The second stage is to determine whether as a matter of fact the “something arising in consequence” was a consequence of the disability.

3.18.5 The expression “arising in consequence of” can describe a range of causal links between the something that causes unfavourable treatment and the disability;

3.18.6 This stage of the test is an objective question and does not depend on the thought processes of the alleged discriminator.

3.18.7 Knowledge is only required of the disability. Knowledge is not required that the “something” leading to the unfavourable treatment is a consequence of the disability.

3.18.8 It does not matter precisely in which order these questions are addressed.

3.19 In assessing whether something is “unfavourable” treatment there must be a measurement against “an objective sense of that which is adverse as compared to that which is beneficial”; Trustees of Swansea University Pension & Assurance Scheme v Williams

[2018] UKSC 65

3.20 The Respondent will successfully defend the claim if it can prove that the unfavourable treatment was a proportionate means of achieving a legitimate aim. This is often termed “objective justification.” The burden of proof is on the employer to establish justification.

3.21 The supreme court in Ministry of Justice v O’Brien

[2013] ICR 449

restated the general principles of objective justification that: (a) firstly, the treatment must pursue a legitimate aim; (b)second, it must be suitable for achieving that objective; and (c) third, it must be reasonably necessary to do so.

3.22 The Equality and Human Rights Commission Code of Practice on Employment contains guidance on objective justification, to reflect some of the case law in the field. It terms the first issue as being determination of whether the aim is legal and non discriminatory and one that represents a real, objective consideration. In Bilka-Kauhaus GmBH v Weber von Hartz

[1987] ICR 110

it was termed: “correspond to a real need on the part of the undertaking.”

3.23 In Chief Constable of West Yorkshire Police and anor v Homer

[2012] ICR 704

, the supreme court reiterated that the measure in question has to be both an appropriate means of achieving the legitimate aim, as well as being reasonably necessary in order to do so. Some measures may simply be inappropriate to the legitimate aim in question or they may be appropriate but go further than is reasonably necessary and so be disproportionate.

3.24 As to the third stage, the EHRC Employment Code notes: “Deciding whether the means used to achieve the legitimate aim are proportionate involves a balancing exercise. An employment tribunal may wish to conduct a proper evaluation of the discriminatory effect of the provision, criterion or practice as against the employer’s reasons for applying it, taking into account all the relevant facts.” We pause here to note that in a section 15 claim, it is of course the treatment that is being justified, not a provision, criterion or practice (the terminology from an indirect discrimination complaint).

3.25 It was said by the employment appeal tribunal in Ali v Drs Torrosian, Lochi, Ebeid & Doshi t/a Bedford Hill Family Practice [2018] UKEAT0029 18 0205 (which was a section 15 case) that:3.25.1 Justification of the unfavourable treatment requires there to be an objective balance between the discriminatory effect and the reasonable needs of the employer;

3.25.2 When determining whether or not a measure is proportionate it will be relevant for the tribunal to consider whether or not any lesser measure might nevertheless have served the employer's legitimate aim;

3.25.3 More specifically, the case law acknowledges that it will be for the tribunal to undertake a fair and detailed assessment of the working practices and business considerations involved, and to have regard to the business needs of the employer;

3.25.4 As to the time at which justification needs to be established, that is when the unfavourable treatment in question is applied;

3.25.5 When the putative discriminator has not even considered questions of proportionality at that time, it is likely to be more difficult for them to establish justification.

3.26 Whilst justification under section 15 has to be established at the time when the unfavourable treatment was applied, the tribunal when making its objective assessment may take account of subsequent evidence; City of York Council v Grosset

[2018] EWCA Civ 1105

. Reasonable Adjustments

3.27 The duty to make reasonable adjustments appears in Section 20 as having three requirements. In this case we are concerned with the first requirement in Section 20(3): “(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.”

3.28 Under section 21 a failure to comply with that requirement is a failure to comply with a duty to make reasonable adjustments and will amount to discrimination. Under Schedule 8 to the Equality Act an employer is not subject to the duty to make reasonable adjustments if the employer does not know and could not reasonably be expected to know that the Claimant has a disability or that the Claimant is likely to be placed at a substantial disadvantage.

3.29 In Environment Agency v Rowan

[2008] ICR 218

it was emphasised that an employment tribunal must first identify the “provision, criterion or practice” applied by the Respondent, any non-disabled comparators (where appropriate), and the nature and extent of the substantial disadvantage suffered by the Claimant. Only then is the tribunal in a position to know if any proposed adjustment would be reasonable.

3.30 The words “provision, criterion or practice” [“PCP”] are said to be ordinary English words which are broad and overlapping. They are not to be narrowly construed or unjustifiably limited in application. However, case law has indicated that there are some limits as to what can constitute a PCP. Not all one-off acts will necessarily qualify as a PCP. In particular, there has to be an element of repetition, whether actual or potential. In Ishola v Transport for London

[2020] EWCA Civ 112

it was said: “all three words carry the commutation of a state of affairs… indicating how similar cases are generally treated or how a similar case would be treated if it occurred again.” It was also said that the word “practice” connotes some form of continuum in the sense that it is the way in which things are generally or will be done.

3.31 The purpose of considering how a non-disabled comparator may be treated is to assess whether the disadvantage is linked to the disability.

3.32 Substantial disadvantage is such disadvantage as is more than minor or trivial; Section 212.

3.33 Consulting an employee or arranging for an occupational health or other assessment of his or her needs is not normally in itself a reasonable adjustment. This is because such steps alone do not normally remove any disadvantage; Tarbuck v Sainsbury’s Supermarkets Ltd

[2006] IRLR 663

; Project Management Institute v Latif

[2007] IRLR 579

3.34 What adjustments are reasonable will depend on the individual facts of a particular case. Paragraphs 6.23 to 6.29 of the EHRC Code give guidance on what is meant by reasonable steps. 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 practicality 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 substantial disadvantage.

3.35 In County Durham and Darlington NHS Trust v Dr E Jackson and Health Education England

EAT/0068/17/DA

the employment appeal tribunal summarised the following additional propositions:3.35.1 It is for the disabled person to identify the “provision, criterion or practice” of the Respondent on which s/he relies and to demonstrate the substantial disadvantage to which s/he was put by it;

3.35.2 It is also for the disabled person to identify at least in broad terms the nature of the adjustment that would have avoided the disadvantage; he need not necessarily in every case identify the step(s) in detail, but the Respondent must be able to understand the broad nature of the adjustment proposed to enable it to engage with the question whether it was reasonable;

3.35.3 The disabled person does not have to show the proposed step(s) would necessarily have succeeded but the step(s) must have had some prospect of avoiding the disadvantage;

3.35.4 Once a potential reasonable adjustment is identified the onus is cast on the Respondent to show that it would not been reasonable in the circumstances to have to take the step(s);

3.35.5 The question whether it was reasonable for the Respondent to have to take the step(s) depends on all relevant circumstances, which will include:3.35.5.1 The extent to which taking the step would prevent the effect in relation to which the duty is imposed;

3.35.5.2 The extent to which it is practicable to take the step;

3.35.5.3 The financial and other costs which would be incurred in taking the step and the extent to which taking it would disrupt any of its activities;

3.35.5.4 The extent of its financial and other resources;

3.35.5.5 The availability to it of financial or other assistance with respect to taking the step;

3.35.5.6 The nature of its activities and size of its undertaking;

3.35.5.7 If the tribunal finds that there has been a breach of the duty; it should identify clearly the “provision, criterion, or practice” the disadvantage suffered as a consequence of the “provision, criterion or practice” and the step(s) the Respondent should have taken.

3.36 In Davies v EE Limited

[2022] EAT 191

the employment appeal tribunal reiterated that it is important to distinguish between the application of a PCP and any adjustment that may be in place to ameliorate the effect. The PCP is the base position before adjustments are made to accommodate disabilities.

3.37 Section 27 of the Equality Act provides that A victimises B if A subjects B to a detriment because: (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.

3.38 A protected act is (a) bringing proceedings under the Equality Act, or (b) giving evidence or information in connection with proceedings under the Equality Act, or (c) doing any other thing for the purposes of or in connection with the Act, or (d) making an allegation (whether or not express) that A or another person has contravened the Act.

3.39 This is again a “reason why” test, was the making of the protected act (or belief that B had done, or may do a protected act) a material influence on A’s decision making process? In deciding whether the Claimant was subjected to a detriment the relevant test is whether a reasonable worker might take the view in all the circumstances that it was to his detriment. An unjustified sense of grievance cannot amount to a “detriment.” The time limit for disability discrimination complaints.

3.40 The initial time limit for complaints under the Equality Act 2010 is 3 months starting with the date of the act of discrimination complained about. The effect of the early conciliation procedure is that, if the notification to ACAS is made within the initial time limit period, time is extended, at least, by the period of conciliation.

3.41 Under Section 123(3) of the Equality Act conduct extending over a period is to be treated as done at the end of the period. A continuing course of conduct might amount to an act extending over a period; Hendricks v Commissioner of Police of the Metropolis

[2003] IRLR 96

3.42 Under Section 123(3) a failure to do something is to be treated as occurring when the person in question decided on it. Under section 123(4) in the absence of evidence to the contrary, a person (P) is to be taken to decide on a failure to do something when either P does an act inconsistent with doing it, or if P does not do an inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.

3.43 In relation to complaints about a failure to make a reasonable adjustment, sections 123(3) and 123(4) therefore establish a default rule that time begins to run at the end of the period in which the employer might reasonably have been expected to comply with the relevant duty. The period in which the employer might reasonably have been expected to comply with its duty is assessed from the Claimant’s point of view, having regard to facts known or which ought reasonably to have been known by the Claimant at the relevant time; Abertawe Bro Morgannwg University Local Health Board v Morgan

[2018] EWCA Civ 640

3.44 A tribunal may consider a complaint out of time if it considers it just and equitable to do so in the relevant circumstances. 4 Findings of fact

4.1 We do not have to make findings of fact on all of the matters or disputes put before us, only those necessary to decide the List of Issues. Where there is a dispute we made our findings by applying the balance of probabilities.

4.2 The Claimant was employed as a nurse from August 1983 to September 2006. The Claimant then became a Health Visitor. The Claimant’s ill health and the start of the first employment tribunal claim

4.3 In 2006 the Claimant was diagnosed with autoimmune thyroid disease. She managed this with medication and was able to continue working full time. In 2013 to 2016 the Claimant began to develop new symptoms including fatigue, night sweats, eye problems, insomnia and neck pain. By 2017 the Claimant was very unwell and following a hospital admission, the Claimant was diagnosed with autoimmune hepatitis. The Claimant was on sick leave from 25 October 2017.

4.4 Dr Ochoa, OH physician, on 9 May 2018 [128] advised that the Claimant was awaiting assessment by a rheumatologist for ongoing symptoms including chronic fatigue, joint pain, insomnia and psychological symptoms of reactive stress, anxiety and depression. He said he thought the latter could be improved with psychological therapy.

4.5 On 16 May 2018 the Claimant saw her GP [1400] who noted that with the autoimmune hepatitis being treated the Claimant was feeling no better with ongoing intermittent pains, anxiety and fatigue interfering with everyday life. There had been a query of fibromyalgia from the consultant. The GP noted daily anxiety about leaving the house, low mood and tearfulness. He made a referral to a consultant rheumatologist.

4.6 On 6 June 2018 Professor Choy, consultant rheumatologist [134] advised that the Claimant’s symptoms which included fatigue, poor concentration and memory with brain fog, anxiety, loss of confidence and low mood were typical of fibromyalgia associated with depression and anxiety. He gave advice on treatment.

4.7 On 13 June 2018 Dr Neville, Consultant Gastroenterologist [136] advised that the Claimant’s hepatitis had responded well to immunosuppression but that the Claimant continued to complain of a multitude of symptoms. He considered there seemed to be an element of depression, quite possibly related to the diagnosis of a significant chronic illness but he had asked for a rheumatological opinion. His impression was that fatigue was the most debilitating symptom. On 17 July he noted the diagnosis of fibromyalgia which he said was entirely fitting for the Claimant’s symptoms.

4.8 On 14 June 2018 the Claimant’s employment was terminated on grounds of capability as a result of ill health. The Claimant was paid 12 weeks pay in lieu of notice. At the time the Claimant was being considered for ill health retirement.

4.9 On 21 August 2018 the Claimant saw her GP [1398]. He noted that the Claimant was tearful with a lot of underlying anxiety and said “suspect predominantly due to fibromyalgia sx and meds.”

4.10 On 31 August 2018 the Claimant was rejected for ill health retirement [151]. The pensions doctor from Medigold Health said the Claimant had a physical or mental infirmity which rendered her incapable of efficiently discharging the duties of her current employment but it could not be said this was permanent. The doctor said more effective treatment for anxiety, depression and fibromyalgia would help mitigate symptoms of joint and muscle pain, headaches, and fatigue enabling the Claimant to return to work before normal pension age.

4.11 On 18 September 2018 [152] Dr Camilleri, Consultant Rheumatologist, noted the Claimant had not improved significantly. He said the Claimant had fibromyalgia syndrome and also had anxiety and depression that needed to be addressed. He recommended urgent referral to primary care mental health services and to a fibromyalgia rehabilitation programme.

4.12 On 19 September 2018 the Claimant saw her GP [1397] who noted in the last year the Claimant had been diagnosed with autoimmune hepatitis and fibromyalgia, referred to their treatment and said: “as result finds gets tired aches etc and now also low mood/anxiety, this is not helped by having finished work, advised to as felt tiredness and aches would not improve, advised to resign from work as likely then to be able to get pension on ill health grounds, but has been denied as Medigold assessors say that all rx options not explored, this is not helping and quite low in mood today, plan for Fluoxetine, had tried Duloxetine but upset re fibromyalgia, suggest explore options and will refer pain clinic also, c here 3 wks r so assess if Fluoxetine helpful.”

4.13 On 10 October 2018 the Claimant commenced employment tribunal proceedings [153] relating to the termination of her employment. Complaints were made of unfair dismissal, direct disability discrimination, discrimination arising from disability, and failure to make reasonable adjustments. The proceedings were defended [170]. Disability was admitted [192]. In those proceedings the Claimant provided an impact statement [184]. She said that her mental health had been deteriorating for some time but she had been struggling to come to terms with that. She said she had then attended her GP on 18 September 2018 (in fact it looks like it was 19 September) who started her on antidepressants. The COT3 settlement of the first tribunal claim

4.14 The complaints in the first tribunal claim were not adjudicated upon on their merits because the parties agreed settlement terms enshrined in an Acas conciliated COT 3 agreement [194]. The Claimant withdrew her complaints on agreed terms including payment of a sum of money and that: “The Claimant will be reinstated into the role of a Health Visitor, working 37.5 hours a week with effect from 29 July 2019.” The COT3 terms also said: “Reasonable adjustments will be discussed between the Claimant and Respondent to ensure that the Claimant is well supported in her role. A meeting will take place between the Claimant, Head of Workforce and the Head of Nursing to ensure that the Respondent is appraised of and will accommodate the Claimant’s disability. The Claimant accepts that she will need to be referred to Occupational Health prior to her return to work.”

4.15 The COT3 terms also said: “For the avoidance of doubt, the Claimant’s continuation of service will be preserved as if she had never been dismissed.” She would be reinstated as a band 7 employee (protected). Her pension would be reinstated and preserved without any breaks as if she had never been dismissed to ensure qualification to NHS pension special class status 1995 section remained. It was also confirmed that no back pay was owed and the Claimant had nil pensionable earnings for the period 14 June 2018 to 29 July 2019 and so nil pension contributions were due. So continuity of service was being preserved but still with a period of nil pay and nil pension contributions.

4.16 The settlement payment and reinstatement were in full and final settlement of that tribunal claim and other claims the Claimant had arising out of her employment or dismissal with some exceptions. The parties were to keep the existence and terms of the COT3 confidential except disclosure to HMRC, as required by law or to professional advisors. The terms did not prevent the Claimant making a protected disclosure or any obligations to raise concerns about patient safety and care with regulatory bodies. Both parties could discuss or disclose issues and documents on the reasonable request of a regulatory body. There were restrictions on derogatory comments. The Claimant had legal advice when negotiating and signing the COT3.

4.17 The COT3 was signed by the Claimant’s representative on 23 July and by the Respondent on 29 July 2019. In the meantime, the Claimant attended a return to work meeting with Ms Mason, Head of Workforce and JOK, Head of Nursing, on 22 July 2019. Return to work meeting of 22 July 2019

4.18 The Claimant was accompanied to the meeting on 22 July by JC from the RCN. Ms Mason had attended the employment tribunal proceedings to shadow a colleague and had responsibility for the implementation of the COT3 agreement.

4.19 A letter was prepared by Ms Mason and JOK following the meeting. It is dated 22 July although the Claimant did not receive it until some time later. There is a dispute about what was said or agreed at the meeting. The letter itself says: “With regard to your current health status, you explained that you were currently in remission with the liver complaint, however your fatigue levels remained a concern for you with fibromyalgia. We discussed your return to work plan and agreed the following:

• Not to work in an open plan office;

• The base you have requested is Treharris; it was agreed that [JOK] will review this with the senior nurse;

• Plan a RTW programme to support your return to practice, with a fortnightly review, to ensure you are competent to deliver the Healthy Child Wales Programme

• A reduced caseload; number of which to be agreed with the Snr Nurse but no more than 150 children

• 4 wk phased return to work, to be reviewed, with week 1 being 2.5 days, working up to 5 days over the 4 week period.”

4.20 The letter also said: “I agreed that I would refer you back into the Occupational Health Service and would review the report and any further reasonable adjustments that may be required.” The letter said they had discussed line management support and agreed that JOK would ask Ms Allman to do this and to meet with the Claimant before 29 July to add the detail around the Claimant’s return to work plan.

4.21 The meeting of 22 July was clearly a difficult one. There are differing perspectives on what was said and agreed. We did not hear evidence from JC or JOK only from the Claimant and Ms Mason.

4.22 The suggestion the Claimant work at Treharris was because the Claimant did not want to return to her previous base of Kier Hardie Health Park. She would find it hard to concentrate in an open plan office and because she did not consider she could work closely with her previous senior nurse, LH. The Claimant blamed LH for the previous termination of her employment. There was also a health visitor vacancy in Treharris. It was not, however, an easy fix because both Treharris and Kier Hardie are in the Merthyr Tydfil region falling under the line management of LH as senior nurse. Ms Allman was senior nurse for the Bridgend area. JOK’s proposal that Ms Allman line manage the Claimant meant the Claimant being line managed from a different region to the rest of the team she worked with. Treharris was a 20 minute drive and a 20 mile round trip from Keir Hardie.

4.23 Ms Mason says her understanding was that line management by Ms Allman was not intended to be permanent but an interim measure to get the Claimant back in to work whilst a long term solution was worked out. The Claimant says she was told that the adjustments were temporary until agreed by occupational health (“OH”). We return to this point shortly below.

4.24 The Claimant felt the meeting was hostile. She says Ms Mason said she was not to refer to the COT3 as it was confidential and to discuss it was a breach of the agreement. She says she and JC tried to report concerns about allegedly false information in the ET3 submitted in the previous tribunal, but Ms Mason pushed the paperwork back saying the Claimant had been compensated for all that. She says Ms Mason’s tone became quite hostile. The Claimant says that there was clear resentment that at the deal the Respondent had been forced to agree with her. She says she and JC said it was a professional standards issue if there had been the falsification of documents and the possibility that Ms LH had broken the NMC code. She alleges Ms Mason said she would speak to the legal team about the COT3.

4.25 Ms Mason disputes that she was hostile but said it was difficult as the Claimant wanted to discuss things that were covered by the COT3 agreement such as the Claimant’s allegations that the ET3 filed in the first tribunal claim had contained incorrect statements about the Claimant’s sickness history and whether any warnings had been given. The letter itself says: “During the meeting you raised concerns regarding some “professional standards issues” in relation to the Health Board’s ET3 response, which formed part of your legal claim and also in particular, your ESR sickness record. Sara Mason confirmed that she would speak to the Health Board’s solicitor regarding the concerns raised.”

4.26 It was, as we have said, a difficult meeting. But we do not find it was hostile or there was an intention to be hostile on the part of Ms Mason. We find Ms Mason attended the meeting mindful of the confidentiality of the COT3 and with a forward thinking mindset. The Claimant on the other hand, whilst we accept was wishing to and committed to returning to work, was in reality struggling to move on and, in particular, move on from her belief that the grounds of resistance filed in the first tribunal claim contained within them incorrect (or she would say false) information. The Claimant had, in particular, formed the belief that LH lay behind this. The COT3 agreement, once finalised, was drawing a line under this kind of dispute about what exactly had happened and why, and what was in the grounds of resistance without it being adjudicated upon and with no admission of liability made. But the COT3 terms did not stop the Claimant raising professional regulatory matters and so that is the route she took. We can understand Ms Mason’s reticence and concern about this, and do not consider that amounted to hostility. Furthermore, ultimately it was agreed Ms Mason would go away and discuss it with the legal team. That was not a hostile action but an action to try to move forward. We accept Ms Mason’s evidence that she did discuss it with the legal team who told her such matters were covered by the COT3 and that she passed this back to JOK. What JOK and JC then did about this we do not know as neither party called them in evidence (albeit the point is not a direct allegation in the case). The Claimant said in her later grievance there had been emails between JC and JOK about the alleged inaccuracies but we do not have those. We do not find that Ms Mason was seeking to obstruct the Claimant’s return to work or held resentment because of the previous tribunal proceedings. We accept Ms Mason’s evidence that she had no interest in doing so. The return to work had been agreed by the Respondent and her responsibility was to action it.

4.27 The Claimant says there was also hostility about her returning to alternate duties. She says she discussed the need to pace her activities and JC raised other options such as running groups or office based work. She says Ms Mason said [of the Claimant]: “she said she was well enough to come back to work” and if the Claimant wanted a different role she would have to stay off until seen by OH. Ms Mason explained, which we accept, that her point was that the Claimant had said she was fit enough to return to health visiting (which was a role the Claimant knew well), but that if that was not the case and the Claimant was seeking redeployment then that really needed an OH referral before they could sensibly take that forward. We accept the logic in that, and also that the Claimant was content to return as a Health Visitor provided she did not have to directly work with LH.

4.28 There is a dispute about whether in that meeting the Claimant was told she would be able to claim excess mileage arising out of a change in base to Kier Hardie. Ms Mason says it was not. JOK did not give evidence before us but said in the later grievance process there had been no such promise made and the Claimant had changed base at her own request. Again, we did not hear from JC, but she later said in the grievance appeal process that it had been agreed as a reasonable adjustment. On the balance of probabilities we did not find it established that this promise was made. We consider that if it had been it would have been included in the subsequent letter. Furthermore, if it was accidentally omitted the Claimant and JC would have raised the omission when they received the letter.

4.29 We also do not find that there was a commitment to keep the Claimant’s payroll number and email address the same. Again, if there had been it would have been in the letter. Moreover, it is unlikely that Ms Mason would make that kind of promise without being certain it could be done.

4.30 There was a discussion about the Claimant needing a phased return to work and a reduced caseload. We accept JOK said the number was to be agreed with the Claimant’s senior nurse but she had in mind no more than 150 children. That is recorded in the subsequent letter. We also accept that JOK had in mind a generic Health Visitor’s caseload would be capped at 250 children and so this represented a 3 day caseload spread over 5 days. Such a calculation method is not recorded in the subsequent letter but on balance we consider it likely JOK said something about this because of the Claimant’s fixation thereafter with having caseload capped at three fifths of a standard full time caseload.

4.31 Treharris was a Flying Start area which is a Welsh Government initiative to target areas of increased deprivation. The work is more intense and so the caseload is capped at 100 (give or take 10%). We do not find there was an equivalent discussion with the Claimant by JOK about a Flying Start caseload. In particular we do not find that JOK said the Claimant would have a Flying Start caseload capped at 66. If JOK had said it, it would have been recorded in the subsequent letter. JOK was head of nursing and not a Health Visitor senior nurse. We consider it likely, and find, that she was trying to agree the base line parameters of an initial return to work for the Claimant and not every detail. We consider it likely, and find, that she considered much of the detail would be sorted between the Claimant and her senior nurse (once finalised), and when more information became available from a OH assessment, and through reviews as the return to work progressed. Such an intent is reflected in the letter where it says: “I agreed that I would refer you back into the Occupational Health Service and would review the report and any further reasonable adjustments that may be required.” It is also logical bearing in mind that it is never possible to entirely predict how a return to work will pan out after a long break, even with goodwill on both sides.

4.32 We also consider it likely, and find, that JOK did say something about the return to work arrangements being temporary and would be reviewed, including when the OH report was available. Again that accords with the subsequent letter, the evidence of Ms Allman, Ms Mason and also the reality of the situation. The Claimant was returning to work in a team where she would be individually line managed by someone in another region. We consider it likely and find that JOK would have said that kind of arrangement was initially temporary and subject to review to see how it worked out, and pending potentially there being some other solution in the longer term. As already stated it was also dependent on the Claimant’s needs. The Claimant was distressed in the meeting and there was a discussion about the Claimant accessing counselling. It was recorded in JOK’s letter where it said: “It was evident that you have found the last 18 months very difficult and we discussed the options of counselling and agreed that you would access the RCN counselling service as the waiting time for an appointment was less that the CTM counselling service”.

4.33 On 22 July 2019 JOK then phoned Ms Allman and asked her if she would manage the Claimant outside of Ms Allman’s region. She explained the Claimant was returning to work, there had been a court case and the Claimant was coming back to her old job but would be returning to Treharris as she could not be managed by LH. Ms Allman and the Claimant had previously worked together and Ms Allman agreed to manage the Claimant. Ms Allman was told that her management of the Claimant would be temporary to help the Claimant back in to work and outside of the management structure in Merthyr Tydfil until other arrangements could be put in place. JOK told Ms Allman that the processes to reinstate the Claimant including an occupational health referral would be done following the back to work meeting. Ms Allman’s evidence was, which we accept, that JOK told her the Claimant would require reasonable adjustments which would include a reduced workload, a phased return to work and regular review. This was to be discussed with and managed by the Claimant’s new team leader, Trudy Jones, on a day to day basis. Ms Allman was not given any records or paperwork relating to the Claimant (including a copy of JOK’s letter of 22 July). OH Referral

4.34 The COT3 said the Claimant would be seen by OH before her return to work. As set out above, we have found that on 22 July the Claimant was agreeable to returning to work before the OH assessment took place. She wanted to get back to work and back on the payroll as soon as possible. We accept this variance must have been by agreement and that it was not seen as a big deal at time by either side. If it had been then an issue would have been raised about it by JC or by the Claimant’s legal team bearing in mind at that point the COT3 had not yet been signed.

4.35 The OH referral was not immediately actioned in July. Ms Mason says she understood that JOK or Ms Allman were going to arrange it and that it was not her responsibility to action because line managers make OH referrals and they are not processed by HR. The evidence from other witnesses was likewise that OH referrals are done by managers not by HR. JOK later told Ms Allman that she believed Ms Mason was sorting it.

4.36 We find that the OH referral fell through the cracks. The individuals involved all believed that someone else was doing it. We do consider that Ms Mason and JOK had a responsibility for monitoring the situation to ensure the OH referral happened bearing in mind the Claimant’s particular circumstances which were unusual and sensitive. Ms Mason had responsibility for administering the COT3 terms. JOK was head of nursing. The Claimant was returning to work on reinstatement and via a new line management chain; the circumstances required extra care rather than presuming Ms Allman would know the referral needed to be made or that someone else was handling it. We do however find the failing happened through human error and mistake. We do not find that this was a deliberate failing on Ms Mason, or anyone’s part. We accept Ms Mason’s evidence that she genuinely considered JOK had it in hand and she trusted JOK, who was head of nursing, to do so. Discussion with Ms Allman and Ms Jones and the Claimant’s initial caseload and workload

4.37 The Claimant was due to return to work on 29 July and in advance she spoke with Ms Allman and Ms Jones. The Claimant says she expected to have a flying start caseload of 66 but that the caseload she was expected to work on was 110; the same as a full time member of staff. She says she explained it had been agreed she would have reasonable adjustments and a reduced caseload, but Ms Allman and Ms Jones said they had no information about this, and they asked who would pick up the additional work. Ms Allman and Ms Jones give a different account and deny that the Claimant had a personal responsibility for a caseload of 110. Ms Jones says the Claimant’s personal caseload commitment was aways around 80.

4.38 A caseload is a number of cases allocated to a particular Health Visitor post. A caseload is pre-populated by reference to GP surgeries and geographical areas within a GP surgery’s boundaries. So, for example, a GP surgery might have qualifying children allocated (following the child’s birth) by geographic area to three Health Visitor posts.

4.39 The Claimant says that looking at document [744] the Claimant on her return on 29 July 2019, and whilst working 2.5 days a week, was responsible for a caseload of 107 families, which was equal to or more than full time colleagues. We do not consider that 107 is likely to be an accurate number as the data at [744] appears to relate to 2020 not 2019. But the exact number aside, the Claimant was put in a role that had a vacant caseload notionally against her name. Ms Jones said that this notional caseload number was not, however, all of the Claimant’s responsibility and that the actual contacts the Claimant was expected to have were reduced, meaning the Claimant had a reduced workload and not a full time workload. It was put to Ms Jones in cross examination that could not be correct as [744] is the Local Authority’s figures. Ms Jones said, however, that these are Local Authority statistics looking at the number of children in a Flying Start area with a Health Visitor against them, and whether the numbers were above cap or below cap. She said the statistics were not about on the ground what number each Health Visitor was in fact individually visiting as that was not where the Local Authority’s interest lay. For example, a Health Visitor on long term sick leave would be showing on the Local Authority list as against a caseload but others would be actually covering the children in that caseload. 4.40. Ms Jones said the reality was the Claimant was only expected to work a certain part of the caseload. She said the caseload against the Claimant’s name was linked to two GP surgeries and one of those surgeries only had around 80 children and so, in conjunction with the team and possibly Ms Allman it had been decided the Claimant would work that part of the caseload with the other part covered by the rest of the team. In addition, the Claimant had no safeguarding work as that was already being covered. Further, the Claimant was not doing all of the Flying Start programmes or all the Healthy Child Wales programmes. This meant, for example, that another Health Visitor might cover a birth visit and then keep the file with her, despite it still featuring in the Claimant’s caseload. Work was also being picked up by others in the team on the days the Claimant did not work. Ms Jones said that she had not been told the Claimant was returning to a 3 day flying start caseload but that the Claimant was on a phased return with reasonable adjustments and which were put in place. Ms Jones rejected the assertion put to her in cross examination that she was misremembering a figure of 80 because it was a figure the Claimant was subsequently given in March 2021 and Ms Jones was using that figure and working back from it. 4.41 We accept Ms Jones’ evidence and the ultimate point of it being that whilst the Claimant may have had a notional standard full time Flying Start Health Visitor caseload against her name in that position in Treharris, it was not that she was expected to actually cover all of the commitments on that caseload. Much was covered by other members of the team and was managed by Ms Jones. The Claimant ultimately, somewhat begrudgingly, in cross examination accepted that others were covering part of the work. This finding also accords with the fact that there is no contemporaneous evidence of the Claimant ever complaining that she was overloaded with work and was struggling. It also accords with the fact the Claimant accepts that Ms Jones and Ms Allman were good managers who treated her well. 4.42 We consider, and find, that following the meeting with JOK on 22 July the Claimant extrapolated from it a principle that her Flying Start caseload should be three fifths of a standard Flying Start caseload or 66. That had in fact, on our findings, never been said by JOK. But the Claimant believed that was a reasonable adjustment she had been promised. Ms Allman and Ms Jones said they could not remember the discussion, but we accept it is likely that on 29 July the Claimant (and at various stages thereafter) referred to either her having a 3 day equivalent caseload or a caseload of 66 and that it may well be that Ms Jones and Ms Allman then said they knew nothing about that arrangement or commitment. But it was not a rejection of the Claimant having a reduced workload; they knew about that and were accommodating it. We also accept that either at that point or later on Ms Jones and Ms Allman may have said something about who would cover the rest of the caseload. But it was a reference to, if a certain number of cases in the existing caseload were to be officially taken out of the caseload and put in another caseload, who that additional caseload would be officially allocated to. It was not about that being made the Claimant’s problem. Indeed, the Claimant accepted that kind of issue was management’s problem to resolve. It was also not about overloading the Claimant. The point was that they managed the situation by managing the actual workload amongst the wider team rather than officially splitting up the caseload held against the Claimant’s name. 4.43 In terms of other arrangements on the Claimant’s return to work, we accept Ms Allman’s evidence that it was agreed the Claimant would start at 9:30am and finish earlier in the afternoon rather than working 9am to 5pm. This was to accommodate the Claimant’s longer travel time and also to allow the Claimant to start late or finish early depending on how she was feeling. The Claimant was also allowed to attend medical appointments in working time. The Claimant was paid on the basis of a 37.5 hour week. Reinstating the Claimant on the systems 4.44 The Claimant needed to be set up on various systems including payroll, pensions and the Electronic Staff Record (ESR). These are run by NHS Shared Services Partnership (“NWSSP”), an organisation external to the Respondent and who provide services to various health boards. 4.45 Ms Mason delegated these tasks to CM in HR. On 31 July she checked that Ms Allman had sent an enrolment form to payroll, (which Ms Allman had done the day before [201]) and to check the Claimant’s contracted hours. On 1 August 2019 CM emailed NWSSP to ensure the Claimant’s pension was reinstated [204]. The contact in NWSSP said the pension should re-start automatically but she copied in a colleague in payroll to check it did happen. CM had also emailed payroll herself confirming the Claimant’s reinstatement and asking them to ensure the Claimant was included in the next pay run as it was part of a legal settlement. Payroll asked about the reinstatement date and whether it would be backdated. CM originally said it was not backdated [207]. On 6 August the Claimant had emailed payroll with her own enquiries which they forwarded on to CM and who confirmed in turn to payroll and pensions that the reinstatement was with effect from 29 July 2019, but with pension and continuous service remaining as if the Claimant were never dismissed. She also confirmed the content of the COT3 said that the Claimant would have pensionable earnings of nil between 14 June 2018 and 29 July 2019 and that nil pension contributions were due to pensionable service for that period. She confirmed that the Claimant would be paid from 29 July 2019 with no backpay. She noted that Ms Mason had previously discussed the pension situation NWSSP [209]. 4.46 In the meantime, on 1 August JC chased Ms Mason for the letter following 22 July 2019 meeting. Ms Mason confirmed it had been posted on the original date but asked for a copy to also be emailed [205]. 4.47 On 15 August 2019 JC raised an issue that the Claimant had been told in a telephone call with payroll she would be paid on the bottom of band 6 and not at band 7 protection. JC said the situation was causing the Claimant considerable distress. The email made its way to Ms Mason who said that a BACS payment had been sorted and that she/CM would pick it up as the Claimant had been reinstated and would not be on the bottom of the payscale [214]. 9 September 2019 meeting 4.48 Ms Allman says, and we accept, that in the beginning there were regular meetings where caseloads and clinic work were discussed, and they tried to be led by the Claimant as to what she could manage. 4.49 Such a meeting took place on 9 September 2019. There is a dispute as to what was said. The Claimant says Ms Allman stated she had not been given a budget or plan from senior management to arrange cover for the additional workload so she could not implement what had been agreed regarding a reduction in caseload. The Claimant says Ms Allman said she was confident this would be clarified following the OH assessment. She says Ms Allman also said the OH referral had not been submitted so had now been submitted as “urgent.” The Claimant says she was attempting to cover the full caseload but it was difficult due to the lack of adjustments. 4.50 Ms Allman says the Claimant did not report significant issues with her workload or cases and that the Claimant was happy with the return to work plan and level of support required. Ms Allman says the Claimant flagged she had not heard anything about the OH referral. She says the Claimant also raised continued issues with ESR not displaying correct information. Ms Allman says they discussed workload, the plan for the phased return and next steps. Ms Jones likewise says they discussed the Claimant’s workload and the plan for her phased return to work. She says the Claimant raised the carry over of annual leave and the need to set up an expenses account. 4.51 There is an undated “Reasonable/Tailored Adjustments Agreement” completed by the Claimant and Ms Jones [267- 268]. It seems likely to us that it was completed either at this meeting on 9 September or around this time because of the references to the Claimant attending the breastfeeding clinic and because it refers to chasing up the OH appointment. The Claimant identified on the form her health and wellbeing condition/ disability in the workplace as being “Auto-Immune Hepatitis, Fibromyalgia, Osteoporosis, Auto-Immune Thyroid Anxiety Depression.” She said the impact they had on her in work were:

• “Chronic pain, Fatigue requires me to pace my activities at work

• I would benefit from more routine work to reduce stress and anxiety.

• Immune suppressant and long term steroids make me susceptible to infection

• Difficulty carrying equipment.” 4.52 There is a box then for reasonable adjustments required/Date Manager agreed/implemented in which Ms Jones inserted: “Reduced caseload – under 1s 15 month 21 month contacts Birth visits Movement in and out Clinic Breastfeeding (1 per month) Chase up occupational health appointment. Review following OH appointment and report.” 4.53 On 25 September the Claimant emailed Ms Allman thanking her for her support in the meeting on 9 September and saying: “I feel I have more clarity regarding my role and responsibility during my phased return and addresses my need for reasonable adjustments under the Equality Act 2010.” The Claimant also raised that she had been advised by the RCN to request carry over of her annual leave and for it be updated on ESR. She also mentioned that she needed to set up her expenses account [221]. 4.54 We find this was a positive, supportive meeting where there was a review about the Claimant’s phased return to work and workload and where Ms Jones recorded some of the agreed reductions to the Claimant’s workload commitments as set out in the reasonable adjustments form. It does not include, for example, the various numerous post birth visits for under ones under the Flying Start programme, or safeguarding matters and records a reduced caseload for under 1s. We accept the Claimant may well have raised again she believed she was entitled to the capping of her official caseload at 66 or 3 day’s worth of full time Flying Start work. If so, then we consider the likely response remained as before, and that the Claimant’s needs instead continued to be met by adjusting her workload and with the Claimant leading as to what work level she could take on. The plan was to review things again when the OH advice was received. We do not find the Claimant was overloaded, and we accept that she was content with the actual workload she was carrying. 4.55 That the Claimant’s needs were being met is supported by the subsequent email the Claimant sent on 25 September. The Claimant disputes this, saying her email of 25 September meant that she was relieved she had some clarity that reasonable adjustments were required in her case, even if these had not yet been implemented, rather than confirming her need for reasonable adjustments had already been met. We do not accept this. It does not accord with the natural reading of the email. 4.56 We also do not find that Ms Allman said that the OH referral had not been made but was being done on an urgent basis. That the OH referral had not been made was not known at this point in time. The Claimant said that she had not heard from OH. Ms Allman telephoned OH to check on the progress of the referral. OH said they were pressed at that point in time so would look into the query and get back to Ms Allman but could not immediately see a recent referral having been made. Ms Allman also raised it in a regular 1-2-1 with JOK who said she thought Ms Mason had made the referral, and so Ms Allman at that time continued to think it was in train. Late 2019 4.57 On 25 September Ms Jones had a reflective discussion with the Claimant as part of the Claimant’s NMC revalidation and the Claimant mentioned again still not having a OH appointment. Ms Allman telephoned OH again, who said they could not find any record of the referral. Ms Allman did not have the Claimant’s paper personnel file which she would normally use to assist when making an OH referral. She spoke with Ms Jones and they agreed Ms Jones would do the referral without the paper personnel file information. On 30 September the OH referral was made. We do not have a copy of the referral form. We accept Ms Jones’ evidence that she included on it a paragraph about what the role of Health Visitor is, some information the Claimant told her, some personal information such as name and address, details of sickness in the previous year, and that she ticked some standard boxes about what OH were being asked to cover. At that time, Ms Allman also started to make enquires as to the whereabouts of the Claimant’s local, paper, personnel file, including with LH and Ms Mason. 4.58 On 15 October the Claimant emailed NWSSP expenses requesting an expenses account [256]. Her email asked for clarification as to whether she could claim travel expenses from Keir Hardie or Treharris. On 28 October an expenses form was sent for completion. On 11 November the Claimant received her OH appointment notification for 12 December [257]. She asked Ms Allman to complete the manager’s part of her expenses request. The Claimant was also concerned that her pension information was not showing correctly on ESR. The Claimant would discuss her problems with these kinds of issues in her meetings with Ms Allman and Ms Jones. They would do what they could to assist. At this time the Claimant also said to Ms Allman that she was still waiting for an update on her pension information but she would send them extracts from the legal agreement to clarify the situation. Ms Allman filled in her part of the expenses form and asked the Claimant to give it to Ms Jones or forward it to e-expenses. 4.59 As we understand it the expenses form required a base location to be inserted and there was confusion as to what was to be inserted. The Claimant disputed that her base for expenses claims should be recorded as Treharris rather than Keir Hardie. A catch up meeting took place on 5 December 2019 where the Claimant reluctantly agreed to have her account set up with the base stated as Treharris pending further investigation [284]. It was anticipated this would allow the Claimant to put in a backdated claim for her work mileage incurred until that date. On 4 December the Claimant also had her return to practice signed off by Ms Jones [416]. This on the face of it shows Ms Jones having observed the Claimant on that one day having done 12 different types of clinic and visits. Ms Churchhouse submitted this showed the Claimant was performing a full caseload. Ms Jones explained that she had not personally observed the Claimant undertaking all those duties on the one day, and she had signed it off on the basis of observations taken at different times by other health visitors and because she was confident the Claimant was clinically able to cover all the different duties. We accept Ms Jones’ evidence in that regard. Occupational health report 4.60 On 12 December the Claimant saw the OH Consultant Dr Tidley who prepared a report dated 20 December 2019. He said: “Thank you for referring Mrs Protheroe to Occupational health for advice about her health and also her fitness to fully integrate back into her health visiting role full-time… Although I note the background information in the referral form you submitted, it became clear in my initial discussions with Mrs Protheroe that there was very significant background information relating to her situation and employment by the Health Board that had not been brought to my attention and as I am sure you will appreciate, this put me in a difficult position.” 4.61 Dr Tidley said the Claimant had given him detailed background information about her situation and health status. He said: “I advise that Mrs Protheroe is fit to undertake her current duties as a health visitor.” He said: “I advise that Mrs Protheroe has underlying ongoing medical problems and given her circumstances I confirm I would support her now resuming full-time working but I recommend that this is undertaken in a graduated way over a period of 3 months. Having assessed her health status I also recommend the following adjustments:

• I advise that Mrs Protheroe will require additional time to undertake her casework and also her office based work due to the secondary effects of her underlying health problems, I would support this being considered and agreed with her.

• I would support Mrs Protheroe having time away from work to attend any medical appointments for her conditions, in line with the approach on Page 61 of the new Managing Attendance at Work policy. In my discussions with Mrs Protheroe, it was clear that she is happy and content to undertake her duties at her current base, and I understand that before being reinstated she was based at Keir Hardy Health Park and I confirm that from a health perspective I would fully support allowances being made for her change of base including allowances for additional time and also travel, to minimise the potential stress associated with this.” 4.62 At the time of Dr Tidley’s OH report the Claimant was still in a phased return to work working 3 days a week. 4.63 Around this time Ms Allman received a personnel file for the Claimant but it was incomplete, only containing some loose papers from when the Claimant had been a district nurse. Ms Allman had someone in her team update the file to include more recent documents. She told the Claimant what had happened. 4.64 On 29 December 2019 the Claimant wrote to the NWSSP payroll team chasing a response to an earlier letter of 21 October raising she believed that following her 2018 dismissal her PILON payment had been inappropriately taxed. January 2020 4.65 By January 2020 the Claimant was fed up with the handling of her expenses and her concerns about her pension information. On 2 January 2020 she emailed JC with her concerns about not having a working expenses account and that her pension information seemed to have an incorrect retirement date. JC said she would raise this with Ms Mason. The Claimant said in further reply she felt she had been patient in her approach to her reinstatement and referred to the previous meeting where Ms Allman said she had the Claimant’s file but it did not contain anything current as the information was over 12 years old. The Claimant said Ms Allman said she had this part of the file only after it had been returned to LH from the legal team. The Claimant commented it was clear in the meeting of 22 July that he manager was changing so she questioned why that was the process. She said she would like to formally request that Ms Mason have no further involvement in her case. She asked JC for advice on making a subject access request [244]. 4.66 On 6 January 2020 JC emailed Ms Mason saying she had received a concerning email from the Claimant. JC explained the Claimant still had not had an expenses account opened for her, and was now out of pocket with expenses. She said the Claimant said it had not been resolved even though she had asked her line manager to do so for several months. JC said the Claimant was also concerned her ESR record said she started working for the health board in 2019 and not 1983. She pointed out the COT3 said that the Claimant’s record was continuous and that the Claimant felt this was not reflective of the agreement. She said the Claimant’s pension age had also moved to 60 whereas before it was 55 under the 95 scheme [237]. 4.67 Ms Mason responded that day to say she had checked ESR and the Claimant had two records, one which showed the reinstatement date and the other which showed 1983 and that she would contact payroll to query this and the pension. She said: “with regard to her E expenses this is unacceptable and Lisa should be able to claim when required to travel, again I chase this.” Later that day she emailed JC again to say that the query was being looked at by pensions and payroll [235]. JC passed on a summary of the message to the Claimant. 4.68 On 9 January the Senior Pension Officer emailed Ms Mason saying the Claimant’s pension online record showed a retirement age of 55 and the Claimant could retire any time. The pension officer confirmed the Claimant had full protection so would not move to the 2015 scheme. Ms Mason forwarded that on to JC that same day and saying she was still awaiting ESR confirmation around the start date showing over two records [234]. On 28 January JC asked Ms Mason for an update on expenses [235]. We can find no record of Ms Mason replying, nor does her witness statement say she did on this particular issue. Meeting of 10 February 2020 4.69 On 10 February 2020 the Claimant met with Ms Allman and Ms Jones [245]. Again there is a dispute as to what was said. The Claimant says she requested a reduced caseload and Ms Allman and Ms Jones said they wanted to arrange a reduction but it was not achievable as there was no costing in the budget which would need authorisation. The Claimant says Ms Allman said she was due to meet with senior management who could make a decision as to who could pick up the additional workload. She says Ms Allman also said her role as Senior Nurse was temporary and would revert back to LH as the Senior Nurse for Merthyr Valley. She says Ms Allman also said she had contacted HR about the Claimant’s personnel file and JD in HR had said it was in the possession of LH. 4.70 Ms Allman says the main thing discussed was about the Claimant not being able to run a breastfeeding group until she was back up to full time working. She says there was no dispute about the adjustments or the content of the OH report in the meeting and that she considered the adjustments Mr Tidley suggested were already in place. She says the meeting was about planning to start working towards building the Claimant back up to full time equivalent working which the Claimant seemed to support. She says the Claimant also raised issues with her expenses and her personnel file and that she said again she had received part of the personnel file but it was not complete. Ms Allman denies telling the Claimant that she would be returning to the line management of LH. She says she said was that her management of the Claimant was only supposed to be temporary. Ms Allman says the meeting ended with an agreement she would look to arrange a further meeting with JOK to discuss any outstanding issues. The current adjustments would remain in place, and they would look to review the move back to full time hours following that meeting with JOK and the next OH appointment scheduled for April. 4.71 Ms Jones says in her witness statement that they discussed the OH report and the Claimant’s workload based on her working 3 days a week on a reduced Flying Start caseload. She says the Claimant’s only request was about dropping the breast feeding clinic while on a phased return to work and that was agreed. Ms Jones says Ms Allman said she would chase about expenses and that she was liaising with HR about the personnel file. She recalls Ms Allman saying there had been some issues due to Ms Allman not working in Merthyr Tydfil but she does not recall Ms Allman saying that LH would be taking back over line management. She says given the number of systems issues it was agreed the Claimant would meet with JOK to discuss everything. In her oral evidence she said that any references to something being above her or Ms Allman’s “pay grade” or that there was no budget to reduce a caseload were a reference to there being a Service Level Agreement in place between the Respondent and the Local Authority and that they did not have the authority to alter the terms of that Service Level Agreement. She said that, for example, to move 2 days of an official caseload to another new Health Visitor would require a budget to fund that new post. 4.72 Ms Jones made some notes at the meeting [245]. They say: “Lisa working 3 day F/S caseload Covering clinics Will cover 6 month 15 month 27 month & births/follow ups Trudy to speak to Kim re Lisa dropping breastfeeding group until back up to full time. Lisa to meet with [JOK] possibly by the end of February. To establish whether Lisa will cover a 3 day f/s post following meeting with senior management. Allyson Allman spoke to [AE] to chase up ongoing mileage difficulties. Lisa being reviewed again by occupational health department in April. Lisa would like to see her personal file. Allyson Allman has contacted HR regarding Lisa’s file as possibly does not have the whole of the file. Allyson will request formal invitation letter to meeting with head of service.” 4.73 The Claimant emailed JC following the meeting [243] saying: “We discussed the Occupational Health report and I have requested that I have the reduced caseload as a reasonable adjustment promised in the July 22nd meeting. I have requested that I am able to carry over some annual leave the 2020-2021. A further meeting with [JOK] is planned for the last week in February. I have asked for a date as soon as possible because I will need to be accompanied at that meeting. Allyson has advised me that it is likely that [LH] will be expected to take over as my Senior Nurse after the meeting the initial agreement apparently being only temporary. I have made my feelings known about this as I’m sure you will agree. I’m compiling the issues for the grievance and will speak as arranged on Friday…” 4.74 The Claimant said in her oral evidence that by the time of the meeting she was already back to working 5 days a week as she had progressed through increasing a phased return to work following Dr Tidley’s report. We do not consider it likely the Claimant was already working 5 days a week because the purpose of the meeting was to discuss Dr Tidley’s report. Ms Jones’ note also supports a point we decided early in this Judgment; that the Claimant was not and had not been covering all of the work that was in the caseload officially held against her name and that her workload requirements were being regularly discussed with her and adjusted. 4.75 We consider it likely (and therefore find) there was a discussion about increasing the Claimant’s hours back up to full time. We consider that as part of that discussion the Claimant was saying that when full-time she should only have a 3 day Flying Start caseload because that had previously been promised that by JOK. We consider and find the Claimant was saying that the caseload number against her name should be reduced accordingly. We do not find that the Claimant was complaining about having been overloaded up to that point; she had not been. We also do not find there was an intention on Ms Allman or Ms Jones’ part to overload the Claimant or manage the Claimant’s increase in hours in a way that would not take account of the Claimant’s needs such as needing more time to do her work. However, there was an impasse in taking things forward because of what the Claimant considered JOK had previously promised by way of an adjustment and which Ms Allman and Ms Jones (as described by Ms Jones in her oral evidence) did not have the authority to do. It was therefore agreed that Ms Allman would seek to arrange a meeting with JOK. This accords with Ms Jones recording the meeting was: “To establish whether Lisa will cover a 3 day f/s post following meeting with senior management.” It also accords with the Claimant’s subsequent email to JC which was about getting the caseload number reduced as (according to the Claimant) promised by JOK. The Claimant in that email was raising various issues with JC but what she did not say was that she was being overloaded with work. 4.76 The Claimant was also at that time saying she still did not have a working expense account which Ms Allman was trying to chase up with NWSSP. The Claimant by that time was also wanting to see her personnel file. We consider the Claimant was suspicious about why Ms Allman only had part of her file. This was particularly due to being told that the part that Ms Allman did have did not include the Claimant’s Health Visitor career, and because the part of the file Ms Allman had had arrived with Ms Allman via LH. 4.77 We do not find that at the meeting Ms Allman said the Claimant would be returning to the line management of LH. It would not been Ms Allman’s decision to make, and it would be an incredibly insensitive thing to say knowing the background. It simply does not accord with the sensitivity and care with which Ms Allman and Ms Jones were managing the Claimant. We consider it most likely (and therefore find) that Ms Allman made a comment to the effect that some things it was difficult for her to manage because she was managing the Claimant in isolation out of the region and did not attend management meetings about the Claimant’s region, and that she did not know what the long term arrangement would be because she had taken on line management on a temporary basis. We consider the Claimant at that point in time was feeling vulnerable and suspicious. She extrapolated from that that it meant she would return to the management of LH. But that was the Claimant’s supposition not what Ms Allman actually directly said. We consider the long term plan was one of the things it was decided should be discussed in a meeting with JOK. March 2020 Grievance 4.78 The Claimant at this point in time was already working on drafting a grievance. As we understand it the document at [246-275] is the Claimant’s subsequent recreation of her initial grievance document that was mislaid by the Respondent. 4.79 The Claimant identified by bullet points the nature of her grievance (as well as referring to additional pages and appendices):

• Staff payroll number and pay/tax issues

• Inaccurate electronic staff record;

• Pension problems;

• Claiming of expenses;

• Occupational health delay & reasonable adjustment;

• Personal file. 4.80 The Claimant’s covering letter to Ms Allman [248] also referred to issues being discussed in meetings between them which included “lack of information to the consultant”, “professional concerns about information in my personal file”, and “misinformation with regards to the reason for my change of base and Manager.” The Claimant said that Ms Allman, Ms Jones and JC had attempted to resolve these issues informally and: “Despite these considerable efforts there remains hostility to my return to employment and rights under the legal agreement…When asked to justify this the Head of Workforce agreed that the treatment was unacceptable but then proceeded to do nothing to resolve the problems. Due to this continued impasse and blatant hostility I have been advised by the [RCN] to submit a Stage 2 Formal Grievance.” 4.81 The body of the grievance has a narrative over 5 pages which it is not possible to fully set out here, but we took its entire contents into account. Some key points we do record here are that it said that since the Claimant’s reinstatement she had: “been the recipient of system failings on behalf of the health board which have impacted again on my current wellbeing.” The Claimant referred to the return to work meeting on 22 July 2019 and said that JOK: “noted that I have had an extremely difficult time and recommended counselling. They were also aware of my previous problems with anxiety and depression.” 4.82 Part of the Claimant’s complaint about pay issues was that on 21 October 2019 she had written to the payroll team to update her tax for the year 2018/19 (relating to the dispute about whether her PILON payment was pensionable) and she had received no response, despite sending a reminder. The Claimant referred to being set up with a new ESR and said it showed no record of employment or absence information prior to July 2019 and that inaccuracies in her sickness record were discussed in the meeting of 22 July 2019 and in an email from JC to the Health Board. The Claimant complained that the pension part of her ESR did not correctly set out her pension entitlement and that when she looked on the Government Gateway it gave a normal retirement age of 60 not 55 which suggested she was not covered by the 1995 Scheme. She said she wanted an explanation why she had been treated in an unacceptable manner when other employees were not treated in a similar manner. 4.83 The Claimant complained she still did not have a working mileage expense account despite making repeated requests and completing and submitting the forms along with her line managers. She said she wanted an explanation why she was not treated like other employees. She said: “As a community nurse I can travel long distances in the course of the day and I have also had to change my base and travel further this was to initially support my disabilities and the requirement for a quiet warm office, this was agreed at the initial meeting in July 2019.” 4.84 The Claimant said that originally the referral to OH was expected to happen before she started back to work but due to the considerable amount of time between the settlement being agreed, a start date to return to work, and payroll it was to be actioned following the meeting. She said the purpose of the referral was to support a successful reinstatement. She said the referral was supposed to be actioned by Ms Mason but in a review meeting it had come to light it had not been actioned and she did not see OH until 12 December 2019. She said: “During the consultation with Dr Tidley it became evident to him that he had not been provided with the full history of the process’s that I had been subjected to leading to the COT3.” She said she had to go through everything again. She then said: “The delay in having advice on reasonable adjustments has left me and my line managers without the necessary information needed to support a successful return to case load.” The Claimant also said that despite the governance difficulties in her reinstatement she had received professional support from Ms Allman and Ms Jones and the health visitor teams and: “The policy for return to work has been actioned with a clear format involving regular contact and feedback.” 4.85 The Claimant said that initially Ms Allman did not have her personal file and when Ms Allman received the file from LH it did not appear to be contemporaneous and it was unclear why LH was holding her file despite no longer managing the Claimant. The Claimant said she had requested what information was present in her file and what records were missing. 4.86 By way of resolution/remedy the Claimant requested that someone independent of local HR be appointed to action:

[1]Full and comprehensive reinstatement in accordance with the terms of the binding legal agreement, showing start date for employment at August 31, 1983 with original staff number; ESR fully updated and factually correct;

[3]ESR sickness absence, to be shared with myself and my representatives for it to be ratified as accurate;

[4]Expenses account set up immediately, in line with advice from Occupational Health;

[5]Confirmation of my current base, role, responsibilities and management structures in line with the reasonable adjustments recommended by Occupational Health;

[6]ESR Link to the total reward statement to be reinstated and preserved without any breaks to ensure qualification for 1995 status;

[7]The pension information to be shared to confirm accuracy and then provided to Cardiff shared services, who will update Fleetwood Pension Administrator;

[8]In respect of the damages for dismissal, if the Trust do not wish to correct to 2018/2019 HMRC submission, then I would consider that the damages should be classed as pensionable service. 4.87 The Claimant posted the grievance pack to Ms Allman on 6 March 2020. No date is given, but presumably a couple of days later, Ms Allman telephoned the Claimant and checked with the Claimant her understanding that the issues were not about the support the Claimant had received on her return to work but was about how governance problems had been handled. She also spoke briefly with JC who also confirmed the position and Ms Allman said she would speak to JOK. Ms Allman spoke to JOK who said the issue may be one for workforce to deal with and to scan and send the grievance to her. Ms Allman did so. JOK later told Ms Allman to leave it to her and Ms Mason and so Ms Allman stepped out of the process. Ms Allman also telephoned the claimant and told her that JOK had said it would be dealt with on a senior level. 4.88 By 13 March 2020 non urgent hospital appointments were being cancelled in Wales due to the impending Covid 19 pandemic. On 18 March 2020 Ms Mason emailed Ms JC saying: “A Stage 2 Grievance had been submitted by LP on advice from the RCN.” She asked JC to give her a call. Ms Mason said in evidence, which we accept, that it was not unusual, even when in receipt of a formal grievance, to have a discussion with a trade union representative about the background to the grievance and to see if there was scope to resolve it at all. We accept that was Ms Mason’s aim at the time. Indeed, later on Ms Wright did something similar and on neither occasion was JC objecting or saying that such kind of contact was unusual or inappropriate. There was no official confirmation letter sent to the Claimant at the time acknowledging the grievance. At that time Ms Mason was involved in a restructure and operational HR teams were being sent out to each district site so that they could be on individual sites to offer support. 4.89 Ms Mason also tried so resolve some of the issues. In particular she went on, that day, to chase up the ESR query relating to pension [278]. She was told by the pension officer that the Claimant had a break in her pensionable employment. Ms Mason responded to say there should be no break in service as the Claimant was reinstated following legal proceedings [277]. 4.90 On 23 March 2020 the UK entered lockdown and the Claimant started shielding as an extremely vulnerable person and initially at least was not working. As we understand it, at some point she started doing some home working but quite when that was is not clear. It is an agreed part of the chronology that the Claimant agreed with her RCN representative that her grievance could be paused until shielding conditions were over. The Respondent’s evidence is also, that we accept, that an all Wales agreement was reached between trade unions (including the RCN) and the health boards that grievance processes would be paused. The NHS was of course under unprecedented, immense strain. As well as the Claimant’s grievance she had also been awaiting a meeting with JOK. That anticipated meeting also did not take place because of the Covid19 pandemic. Occupational health review 4.91 On 23 April 2020 the Claimant had a telephone review with Dr Tidley [281]. He noted that the Claimant was shielding. He said: “Having reviewed Mrs Protheroe’s circumstances I confirm that I remain supportive of the advice and approach set out in my letter/report dated the 12th December 2019 when changes to the public health control measures for Covid19 permit this, I will make arrangements for Mrs Protheroe to have a further occupational health review by me via a telephone consultation in approximately 3 months.” Spring/Summer 2020 4.92 On 15 May 2020 Ms Mason emailed JC asking JC to call her. Ms Mason said there had been a restructure of the Health Board into integrated locality groups and she had moved to be head of Workforce for Bridgend but would still like to resolve any outstanding issues for the Claimant, as would JOK. She suggested a conference call or if face to face was preferred she could arrange this with social distancing measures at a time in the future that was better for the Claimant [282]. 4.93 On 10 June JC emailed Ms Mason saying she had caught up with the Claimant and wanted to catch up in turn with Ms Mason. She offered some time on 16 June. 4.94 On 16 June 2020 the Claimant emailed Ms Jones with a scan of a signed expenses form [283]. She attached documents relating to the previous submission of an expenses form the previous year. Whilst she was shielding the Claimant was not incurring new expenses but without a working expense account she was still unable to claim her expenses from July 2019 through to March 2020. She said: “Occupational health have advised that my change of base was essential due to my health is this going to be taken into account at this stage.” The form identified an old base of Kier Hardie and a new base of Treharris. 4.95 An expense officer responded to say the Claimant already had an active expense account with Ms Allman as the approver, so the Claimant had been sent a password link to gain access [287]. As the Claimant was shielding she could not access her work emails and so she was contacting NWSSP by phone and using her private email address to try to obtain the password [293]. The Claimant said in her email that she had had to change her base following reinstatement. The expense officer said they could not send a password re-set to a private email address but they could do it over the telephone. 4.96 On 22 June Ms Mason emailed JC in response to her email of 10 June, saying she had only just picked up the email and the last week had been a little hectic to say the least. She asked JC for any other availability dates. She says in her witness statement that they were ultimately able to have a discussion in mid-June. We do not have any information about what was discussed, but Ms Mason says attempts were made in June and July to resolve issues. It seems likely there was a discussion between Ms Mason and JC and in turn between JC and the Claimant, and that some things then happened, because in July there were fresh attempts to resolve the expense situation. 4.97 On 22 July 2020 the Claimant emailed JC saying she was still trying to sort out her expenses account and had been given new passwords on two occasions but neither had been accepted despite being given by the expense department. She said that the last person she had spoken to said the email address on the new expenses account was the Claimant’s old email address and that only Workforce could change the email address. The Claimant said that may provide the answer as to why she was facing this problem. The Claimant referred to the agreement the grievance could be paused until shielding was over and asked for this information to be included in her grievance. She said: “I have been back in work for a year and Workforce are still persecuting me.” On 7 August 2020 JC forwarded the email on to Ms Mason and JOK and asked for the issue to be resolved urgently [289]. 4.98 Ms Mason emailed Ms Allman on 10 August 2020 asking her to ensure the Claimant’s expenses were authorised as soon as possible, assuming they were business miles submitted on E-expenses. She said, and we accept, that this was after having contacted payroll and being given this (ultimately incorrect) information about what the outstanding problem was. Ms Mason also said to JC if the query related to excess miles then they would need an urgent discussion as there had been no agreement on this. She said she needed to be clear on whether the issue was business mileage or excess mileage. JOK also emailed to say: “I am however aware that Lisa has advised that she believes I agreed to excess mileage which is certainly not the case as there was no justification for the same and the base Lisa has was of her very specific request; so I do hope its not related to this.” JC responded to say the Claimant’s issue was that she was without a live account and unable to claim expenses [294]. 4.99 Ms Allman also responded to say she was happy to authorise but that the problem was the Claimant had two ESR accounts that they had been unable to resolve and had been escalated several times. She said: “Lisa is aware that when she is able to, she needs to claim from her current base as the excess mileage has not as yet been authorised. Lisa has accepted this until a meeting can be arranged to discuss further.” Ms Mason responded to say the Claimant had one current ESR account and another account up to the date of termination and that on reinstatement ESR could not resurrect the former account and had to create a new one. Ms Mason said that she had previously confirmed with pensions that the all the Claimant’s current service was correct and that it was linked in the background. She said she understood there had been no request to set up an e-expense account since reinstatement and she circulated the form to be completed. She said if there was a further query regarding excess mileage then a teams meeting would need to be arranged for it to be discussed. Ms Allman responded to say she would willingly complete the form again but it was the second or third time it had been completed and the reply from payroll had been an account was now set up [298]. Ms Mason therefore took this back to payroll [297]. 4.100 On 13 August 2020 Ms JC emailed Ms Mason [302] to say she had spoken to the Claimant who had advised she was happy for the grievance to go ahead remotely. Ms Mason replied to say: “OK, I am a little confused now as we are only this week trying to resolve the issue with E-expenses. I have been informed that on 2 separate occasions the forms have been submitted to allow Lisa to make her claims. I will hasten payroll this morning and have copied you into the emails. Please can you confirm if this Grievance is regarding the change of base or claiming business expenses or indeed both?” SM also chased payroll [322]. 4.101 On 14 August JC emailed Ms Mason saying: “Thank you for your speedy response. I have attached for you the grievance Lisa submitted prior to Covid. There are several more issues than mileage within Lisa’s grievance. I believe the hearing should go ahead it offers a chance to discuss all the issues.” [1420]. 4.102 On 14 August 2020 JC also emailed Ms Mason attaching an email from January 2020 about the Claimant not being able to claim expenses and asking for confirmation the form had gone to shared services. Ms Mason responded to say she had sent another email to shared services to say that on two previous occasions a request had been sent for an expense account and to confirm to JC payroll had previously told her there had been no application for the expense account. Ms Mason chased payroll on 17 August [321]. 4.103 On 16 August shielding was lifted. It is agreed within the chronology that the Claimant then commenced working from home 3 days a week and undertaking office work in Treharris 2 days a week with no patient contact on a risk assessed basis. Given the nature of the work of a Health Visitor this substantially limited the work that the Claimant could do. It remained the position that an official caseload figure was held against the Claimant’s name but in reality the face to face contact was being undertaken by other Health Visitors. What the Claimant was doing was being managed. Again, we do not find that she was overloaded with work. 4.104 On 18 August Ms Mason received a response about expenses saying that the North Wales expense team had only recently taken over the Respondent’s expense account. The response said the Claimant’s expense account had been previously set up by the South Wales team and was active. It said the only thing that was awaited to allow the Claimant to claim expenses was for her vehicle to be added. The expense officer said once the Claimant had done that then the expense team had two working days to activate the account and the Claimant could start claiming. The expenses officer provided contact details for the Claimant to use and said she recalled speaking to the Claimant on 22 July 2020 when she had assisted the Claimant with logging in and that she had told the Claimant she would need to add her vehicle in order to start claiming [333]. 4.105 The expense officer said that in February 2020 AE had said excess mileage had not been required but that it had been subsequently set up. Ms Mason forwarded this on to JC on 20 August and asked if they could speak about this and the grievance. JC responded to say she had tried to call without success and asked for a direct line number [332]. On 20 August Ms Mason emailed the expense officer copying in JOK and Ms Allman saying that she did not believe excess miles were agreed and to clarify her understanding that to claim business miles the Claimant needed to add her vehicle. On 28 August the expense officer confirmed that was the case and she had removed the ability to claim excess mileage [345]. 4.106 Ms Mason and JC spoke on 21 August 2020 and had a discussion about what issues the Claimant was facing and whether there was a way forward. Ms Mason says that JC was clear that the Claimant wanted to proceed with her grievance. Ms Mason emailed JC referring to that conversation and attaching the letter of 22 July 2019 [342]. She said: “Although there was a delay referring Lisa to OH, I am aware that as of March 2020, Lisa was still only working 3 days per [week] and often going home due to fatigue, which has always been fully supported by the HB, despite Lisa being paid 37.5 hrs per week. A meeting was due to take place following receipt of the OH referral, however due to COVID, this did not happen.” Setting up of stage 2 grievance meeting 4.107 On 28 August Ms Mason emailed Mr Bartlett asking him to look for some dates for the grievance hearing whilst she was off. She said she had discussed it with AL (another Head of Workforce) who would be on the panel. She suggested Mr Coslett as another panel member [344]. On 1 September 2020 Mr Bartlett started gathering dates. He also started trying to locate the original grievance documents. He checked with AL and JOK. He said JOK said she was aware of the issues but did not remember being sent any paperwork about a grievance. On 10 September 2020 Mr Bartlett then checked with Ms Allman [351]. He also looked on the systems and could find a grievance file for the Claimant but found it did not contain the actual grievance and acknowledgment [352]. Mr Bartlett also spoke with JC who told him that a Stage 2 grievance had been raised but had been paused due to Covid and he asked her to send through a copy. 4.108 On 15 September Mr Barlett emailed JC asking for a copy [365] and on 16 September he asked Ms Allman [366]. He reported to AL on 18 September that he had not been able to speak with JC by phone since as she had been unavailable. He had also been unable to get unavailability dates for JC. On 28 September he reported that he had spoken to the RCN admin team who said JC had some free time on 12 and 15 October and he asked Mr Coslett and AL to keep those dates free [370]. On 29 September the RCN secretary then emailed to say that in fact JC was not available and asked for alternative October dates but flagged up JC was on leave the week of 19 October. The secretary also said that JC was waiting for confirmation from the Claimant as to whether she was happy to submit the final draft of the relevant documentation and would send it through as soon as possible [371]. That same day Mr Bartlett reported that he had availability dates from the RCN and asked AL and Mr Coslett to hold 16 November open for the grievance meeting [373]. 4.109 On 23 September 2020 the Claimant had a telephone consultation with Dr Tidley [376]. He said: “I advise that she is fit to undertake her current duties as described to me.” He noted the post shielding working arrangements and that he understood it was carefully risk assessed. He said: “from the information provided to me I have no recommendations about any additional measures. I confirm that Mrs Protheroe is fit to work in this way from a health perspective” subject to what may happen with the prevalence of Covid 19. 4.110 On 8 October 2020 Mr Bartlett emailed JC again requesting the grievance paperwork [378]. On 15 October he contacted the RCN admin team requesting a call back and spoke with JC the next day to discuss arrangements for the hearing and to ask again for the final draft of the grievance [379-380]. 4.111 On 19 October 2020 JC then provided [384] the resubmitted grievance paperwork from the Claimant, thanking him for his patience. Mr Bartlett acknowledged the grievance that day [383]. The acknowledgment letter said a Stage 2 grievance hearing had been set up for 16 November 2020. Mr Bartlett checked the grievance and asked about some appendices he thought may be missing. The Claimant provided these on 20 October [385] and gave more background about her concerns about inaccurate information in her sickness record. The Claimant sent a further evidence bundle on 20 October [391]. 4.112 On 30 October JC requested adjustments for the Claimant at the grievance hearing saying that fibromyalgia can cause issues with concentration. The panel were asked to leave asking questions until the end of the presentation of the case so the Claimant could keep focused on issues that were important to her [498]. This was agreed by the grievance panel. 4.113 Ms Davies was asked to attend the meeting to take notes [499]. AL’s general practice in grievance hearings was to have a line manager to attend to be able to respond. On 11 November Mr Bartlett flagged that there was no manager available to respond. AL spoke with Ms Mason to get some background about her previous attempts to resolve issues and if Ms Mason felt a manager would be needed to attend. Ms Mason said she was not sure a manager would help given the complexities and she forwarded some emails and information she had to AL. 4.114 AL’s plan going into the grievance meeting was to have an action plan to log the issues the Claimant felt were unresolved, and try to resolve them with timescales. She proposed that for any that could not be resolved they would have to reconvene and get an appropriate manager to respond to the reasons they could not agree [552]. On 12 November Mr Bartlett was asked to search for the Claimant’s sickness absence record as it was one of the issues raised [556]. He was not able to find anything in relation to her previous staff number on ESR. 4.115 On 12 November 2020 the Claimant emailed Ms Allman about advice that had been sent out about face to face visiting with families. She said that to date it had been manageable because all staff were following a similar visiting pattern and colleagues had undertaken essential visits on the Claimant’s behalf. The Claimant said her consultant had advised that with her condition she may not develop a strong immune response to the vaccines and it was likely she would be unable to return to her role in full for some considerable time. The Claimant identified that in her team there was also one nursery nurse shielding and one on maternity leave. She sought Ms Allman’s advice on managing the caseload under this criteria [559]. Ms Allman responded to confirm that it was fully appreciated the Claimant needed to continue to shield and could not undertake face to face contact with families at the time. She said she would discuss further and ongoing management of the caseload with Ms Jones and the situation would continue to be monitored and she would seek further advice from HR [559]. The arrangements therefore continued in place with the Claimant not undertaking face to face work. 16 November 2020 grievance meeting 4.116 The grievance meeting took place on 16 November 2020. There are no contemporaneous notes of it. Ms Davies said that the notes she took became the subsequent action plan. If JC took notes (as trade union representatives often do) then we do not have these either. There was also no letter sent out to the Claimant immediately after the meeting to confirm what had discussed and what the next steps would be. There are factual disputes as to what was said and agreed at that meeting (not aided by the lack of any contemporaneous note). It is, however, agreed within the chronology that an action plan would be set up to resolve the Claimant’s complaints in relation to her ESR, pension, expenses, personnel file and OH delay. 4.117 Mr Coslett subsequently recorded [848] that the Claimant had said the resolution she was seeking was as set out in the remedy section of her written grievance. Mr Coslett’s account is that it was agreed with the Claimant that an action plan would be the best course of action with the aim of resolving the issues highlighted informally at that stage and Ms Davies agreed to prepare the action plan and share it by email with a 4 week review date planned. Ms Davies’ evidence is similarly that AL proposed an informal action plan which was agreed by the Claimant and JC as the way forward. The Claimant’s case is that she did not agree for the process to move outside the formal grievance process and be resolved by way of action plan with a moveable deadline. She says she expected the two processes to run in tandem with the hearing being reconvened in December. 4.118 For reasons that we come on to, it turned out that AL was unable to lead the grievance process in the way that was originally anticipated. We consider and find that it was AL’s original intention to have an action plan with timescales to resolve issues and those that could not be resolved would then be addressed in a formal grievance meeting with a manager present. But for reasons we come on to things did not unfold that way. We anticipate that it is likely at that time there were no grand discussions and analysis about the action plan’s status under the grievance policy. It had simply been agreed it was a sensible way forward with the joint hope that it was a way to get some issues resolved. We do not find that there had been a clear statement to the Claimant that in December 2020 there would definitely be a formal stage 2 grievance reconvened; under AL’s plan it would for example depend upon whether there were in fact issues left unresolved following the action plan. But the lack of a formal letter about exactly what was happening in the grievance process probably did mean there was a risk of a lack of clarity and confusion on both sides, particularly as time went on and with AL leaving the process. November 2020 management emails and initial progress with the action plan 4.119 On 20 November 2020 a health visitor emailed Ms Jones about caseload management saying she was raising concerns about the management of the Brookside/Bedlinog caseload currently held by the Claimant. She said due to changes in caseload some of her vulnerable families had been handed over to the Claimant and she was concerned that some families that were in need of enhanced health visiting support were no longer being seen as the Claimant was not able to undertake face to face contact due to Covid restrictions. She said providing support to families on her own caseload and some already known from the Claimant’s caseload as well as home visiting a share of the Claimant’s birth follow ups was challenging and was likely to become more so. She asked whether there was a plan as to how to manage the increased and intensive workload. We note (similarly mentioned by the Claimant in a subsequent email) that there had been some restructuring in caseloads in the team. 4.120 On 23 November 2020 Ms Jones forwarded this to Ms Allman [610] saying: “Lisa is aware of the added pressures on her colleagues and has expressed concern about the work they need to undertake on her behalf.” Ms Jones said that if and when the Claimant was able to return to pre coronavirus working it would still be on a reduced caseload and staff in Treharris will continue to be stretched and she anticipated it would only become worse as a result of covering a colleague which had gone on for over a year. We pause here to note this supports our earlier finding that the Claimant had always had a reduced workload and that it was always anticipated that the Claimant would continue to be, even when Covid restrictions lifted. 4.121 Ms Allman forwarded this in turn to GC, now head of nursing, asking for a catch up, identifying it was difficult for her to deal with as she managed the Claimant in isolation from the team in Merthyr. She said it was difficult for the team and team leader who were trying to cover the work for some time. 4.122 On 24 November GC forwarded this on to LH asking her to pick it up and support the team. The response was that the Claimant refused to allow her to be involved and that GC should talk to Ms Mason as it was not appropriate for LH to be involved [609]. GC responded to say to LH that it was about support for the team and not support for the Claimant as Ms Allman was looking after that. GC asked Ms Allman where the Claimant was on increasing her hours and to chase an occupational health report. Ms Allman said: “Lisa is now and has been since shielding sort of working her full time hours, but of course this is from home.” Again this shows the flexibility that Ms Allman and Ms Jones gave to the Claimant in terms of managing her hours and health. 4.123 These management exchanges were happening separate to the grievance process and the Claimant (or JC) were not copied into them. Following the grievance meeting Ms Davies had got to work. On 24 November 2020 she sent the action plan to the Claimant and JC. The action plan was based on the remedies the Claimant had set out in her written grievance. For the issue of inaccurate electronic staff data, the ESR data was to be pulled from the Claimant’s previous record and then shared with the Claimant and JC to be ratified as accurate. The ESR team were to be contacted about how the information could then be updated. For the issue of pension problems, AL was to contact Pensions to see how it could be resolved and with the ESR link to be reinstated without any breaks in service. The pension information was to be shared to confirm accuracy and then provided to Shared Services and onwards to the Fleet Pension Administration. On the issue of claiming expenses an expense form was to be filled in (in the event this was not needed). Ms Davies was to liaise with expenses to see how the account could be immediately set up with expenses backdated from 2018 as appropriate. On the issue of OH delay and reasonable adjustments put in place, Ms Davies was to send the Claimant a disability risk assessment form to fill in and a letter of confirmation of current base, role, responsibilities and management structures in line with reasonable adjustments was to be sent to the Claimant. On the issue of the local personnel file not being available to current line manager, the senior nurse was to be spoken to, to obtain the local file and Ms Davies would liaise with GC as needed. The final issue identified was the damages PILON where it was said: “Damages to be corrected by HMRC 2018/19 or it would be considered pensionable.” AL was to speak to a CP in Pensions to resolve that matter. 4.124 The action plan had a timeframe given of “within 4 weeks” and a review date of 18 December 2020 [601-602]. On 25 November AL asked the Claimant and JC to come back if they had any queries or amendments about the action plan [612]. 4.125 On 24 November Ms Davies also reported to the Claimant that she had spoken to the expenses team who had confirmed the account was live and email address valid but what was needed was the vehicle details inserting and being approved by Ms Allman. Ms Davies had also been able to get some absence data from ESR for the Claimant to check [585]. 4.126 On 25 November JC emailed to say she would discuss the action plan with the Claimant had get back to Ms Davies with any discussion points [617]. 4.127 On 26 November 2020 GC emailed Ms Allman and Mr Bartlett asking for a copy of the Claimant’s latest OH report and the last letter sent to the Claimant by JOK. She said she needed to have a better understanding of what had been agreed and how they move forward with this. This was part of the previous management exchanges about workloads in Treharris. Mr Bartlett then copied this to AL, after a discussion with GC, because AL had recently sat on the grievance hearing asking if AL and GC could speak. Mr Bartlett said that GC was trying to establish a way forward in managing the Claimant and what had been agreed [607]. 4.128 On 27 November 2020 AL sent a grievance update to a HR advisor in Pontypridd saying the grievance had not been heard yet as they had a pre-meeting with an action plan for the Claimant’s issues. She said: “We agreed we’d try to resolve by the end of the month and if we couldn’t reset the hearing and invite a manager to respond. The issue was there was no manager to respond to this.” AL commented that GC had been chasing for a discussion about operational issues but that this was not AL’s role in the grievance. She said: “Lisa told us she is working full time and doing a full case load if that’s not the case that’s an operational issue” [605]. 4.129 On 1 December AL emailed GC apologising they had not had time to speak. She said again that the Claimant had said she was working full time and had a full caseload and asked Mr Coslett if that was also his recollection. She said: “this wasn’t really the subject of her grievance so I’m not sure what Chris and I can add on the point.” AL said again that the actual grievance process had not started as it was a pre-meeting. Mr Coslett responded to say: “The only thing I would note is that one of the issues identified during the grievance is that she is currently managing a full case load but had had agreement previously that she should have a reduced caseload even when working full time, in recognition of her health issues.” He referred to JOK’s original letter which said caseload would be agreed with senior nurse but no more than 150 [606]. AL asked GC if the Claimant was actually covering a full caseload. We do not have any email chain (if indeed there was one) thereafter. We note, however, that the Claimant had said at the 16 November meeting that she was managing a full caseload but believed she had previously had agreement from JOK that she would have a reduced number. This again supports our finding that the Claimant held a full caseload against her name and she believed that JOK had previously promised her that it would be three fifths of a full time caseload when working full time hours. We do not find it was a complaint that the Claimant was overloaded with work; we know and she accepts that there were many duties she was not undertaking because of Covid restrictions. 4.130 Ms Jones told us that workload pressures within the team were ultimately resolved by another Merthyr team outside of Treharris stepping in to help cover some of the work that sat in the Claimant’s caseload. Ms Allman also said that at some point senior management acknowledged that the Claimant working on a Flying Start caseload on a reduced basis was complicated because of the overseeing by and responsibilities to the Local Authority and Welsh Government. She says that at one point there was mention about whether to ask the Claimant to move to a different caseload outside of Flying Start but in the event this never came to fruition. December 2020 4.131 On 3 December 2020 the Claimant emailed AL to ask for confirmation that her base had been changed to Treharris saying it was as recommended by occupational health. She also flagged up that she had been told in August that they had the wrong email for her, that it could only be corrected by HR, and may be the cause of confusion [612]. 4.132 In December 2020 in line with public health requirements the Claimant returned to shielding, working from home. 4.133 On 10 December 2020 the Claimant sent an email to Ms Jones asking if a community nursery nurse may be able to visits to do weighings as was being done in the generic team. She said she was “new to this caseload and feel this would be a more complete service for families.” Ms Jones responded to say there was one member of staff who was happy to weigh babies without concerns, albeit she was very busy covering for three community nursery nurses. Ms Jones asked how many follow up weights the Claimant had. The Claimant responded to say her health visitor colleagues were covering the follow on weighings and she understood that resources were very limited and she thought she was just being over anxious. She thanked Ms Jones for her support [613]. 4.134 On 11 December Ms Davies chased JC for any discussion points [617]. On 14 December JC emailed Ms Davies apologising as an email had been stuck in her outbox. JC had met with the Claimant to discuss the action plan and raised two points. Firstly they wanted an action point to check whether the Claimant’s personal file was still with the Claimant’s former senior nurse. Secondly it was said: “Important to acknowledge for Lisa is that she raised her initial grievance with [JOK]. There was an initial agreement to pause due to the pressure of an emerging covid crisis. This has never been acknowledged in writing.” JC thanked AL and Ms Davies for developing the action plan and said: “Lisa and I both feel it addresses the concerns raised and is achievable.” 4.135 AL was not able to be as involved in the action plan steps as initially anticipated as she was involved in planning the mass vaccination centres. On 15 December she emailed JC explaining she had had to cancel employee relations work that week to support the mass vaccination planning and that she was on leave after Friday. She said in the meantime Ms Davies was trying to progress actions for AL [623]. AL had also asked Mr Bartlett to help Ms Davies out. 4.136 On 16 December 2020 Mr Bartlett provided AL with an action plan update [628]. Ms Davies had sent the absence data to the Claimant and was awaiting for her confirmation if it was correct. Ms Davies had emailed the ESR Hub Team to update the ESR record and was also contacting someone else to see if he could help. Mr Bartlett noted the pension point and PILON points were with AL. On the expenses point, Ms Davies was going to follow up with the Claimant to see if she had actioned updating the vehicle details. Ms Davies had sent the Claimant the disability risk assessment form to complete and was going to prepare a first draft of a letter of confirmation of role. Mr Bartlett was to contact GC about the Claimant’s personnel file. 4.137 On 16 December Mr Bartlett duly emailed GC to ask if she knew who held the Claimant’s employee file. GC identified she thought it was Ms Allman [634]. He therefore asked Ms Allman. Ms Allman said this had been one of the problems and that she had requested the personnel file at the start but nobody could locate it. Ms Allman said that LH and Ms Mason had previously been asked. Ms Allman said that several months later a file turned up from HR but it was a very old file containing no recent information about the Claimant as a Health Visitor. She said she had added to that old file since managing the Claimant but there was very little in it. She said that JOK and Ms Mason were aware of this [635]. 4.138 Also on 16 December Ms Davies spoke with the Claimant and assisted her with registering a new car on the expense account. She emailed Ms Allman asking her to authorise the car [647]. Ms Allman responded to say she was temporarily line managing the Claimant and she believed the Claimant’s expense accounts should sit with the senior nurse for Merthyr and their cost code (as they managed different regions) [646]. Mr Bartlett told Ms Davies he thought they needed to discuss that with AL. By 22 December Mr Bartlett had confirmed with GC that Ms Allman should be the expenses approver [657, 664] but Ms Allman wanted to discuss it with GC [664]. It seems likely to us that Ms Allman’s concern was that the expenses did not accidentally come out of her region’s budget. 4.139 On 17 December the Claimant returned the employee section of the disability assessment form [636]. She provided a form about carry over of leave she said she had completed in March and sent to GC. The Claimant confirmed that Ms Davies had copied her in on an expenses request and she was hoping to finally have progress on the matter. The Claimant, on the disability assessment form, said the impact of her disability on her at work was that chronic pain and chronic fatigue require her to pace activities. Immune suppressants and long term steroids made her more susceptible to infection. She identified that she suffered with low mood and anxiety which had been difficult during the shielding from covid 19. She said the unpredictable nature of caseload management can be stressful. She said she would be unable to concentrate in her previous base due to it being open plan and she would be unable to work closely with her former senior nurse. The reasonable adjustments sought were:• Additional time to undertake casework and office based work;

• Allowances for additional travel to a new base both in time and expenses;

• Not to work closely with her former senior nurse;

• Not to return to work at Kier Hardie;

• Not to carry heavy equipment. This was a repeat of what had previously been said/ what was in Dr Tidley’s original OH report. 4.140 On 22 December Mr Bartlett sent Ms GC a draft letter about confirmation of role, base and adjustments and asking for the Claimant’s substantive base to be clarified in the letter [648]. He asked for detail to be added about the management structure and agreed reasonable adjustments, providing a copy of the disability risk assessment form. 4.141 On 31 December Ms Davies emailed LH asking her to check if she had the local personnel file and, if not, if she could confirm where it was sent to [667]. Ms Davies also contacted Expenses to clarify who the approver of the expenses ought to be [668]. She was then on leave until 11 January 2021. January 2021 4.142 On 5 January 2021 GC sent the draft confirmation of role letter to Ms Allman for input [669]. She said: “add anything that your feel needs to be included ie working with reduced caseload? Approval of travel expenses etc. Need to get this as clear as possible.” 4.143 On 5 January 2021 Mr Bartlett emailed GC saying he had discussed the expenses element with AL who had advised that the Claimant was looking for excess mileage to be agreed as the Claimant had moved base since her return to work [671]. GC said she understood from Ms Allman that excess travel was not agreed as it was the Claimant’s request to move base and she agreed with that decision. She asked JOK to confirm this. JOK confirmed she had not authorised it [670]. JOK said there was no discussion or request for any excess mileage allowance. GC also said she thought the expense approver would now be Ms Jones and it would be confirmed in the letter. 4.144 On 7 January 2021 Ms Allman provided information for the confirmation letter [673]. She provided the address of the Treharris base. She said: “Working with reasonable adjustments as advised by Occ Health, Lisa is working 37.5 hrs on a reduced Flying Start Caseload and currently only has 80 families as opposed to 110 full caseload. Travel time into work has been taken into consideration and Lisa has been given time to attend all appointments within work time. Lisa has been supplied with a lightweight scales and backpack carrier which she finds much easier. Lisa is based in a large, spacious office and has an allocated desk, telephone and PC. At present of course Lisa is shielding, so having no face to face contact with families. Lisa continues to liaise and work closely with her Team Leader, Trudy Jones.” 4.145 On 8 January 2021 Mr Bartlett updated the confirmation letter [675]. On 12 January he chased GC and she replied to approve the letter and to say that Ms Jones should approve the travel expenses. Mr Bartlett said he would send the letter to AL and then send it back to GC to review, sign and send [683]. Mr Bartlett contacted Expenses to ask for the authoriser to be changed to Ms Jones [686]. On 13 January 2021 Mr Bartlett emailed the draft letter to AL [701]. 4.146 On 11 January the Claimant and Ms Davies exchanged emails about difficulties the Claimant was still having with the password for her expense account [738]. 4.147 On 12 January 2021 the Claimant and JC met with Ms Davies for an update on the action plan. The Claimant confirmed the business intelligence data from the Claimant’s previous ESR record was confirmed as accurate but the Claimant went on to say that this was not the same ESR record that was used as part of the previous employment tribunal and the Claimant wanted to raise that as a concern. Ms Davies said she would discuss this separately with AL. Ms Davies also said she had logged a ticket with the national ESR team to update this data which had been referred on to the local ESR team who had in turn said that it needed to be updated via payroll. Ms Davies said she would speak to AL to ensue this was done correctly and to show no break in service. Ms Davies provided an update that the pension teams had said once payroll reinstated the ESR record and removed the break in service this would rectify the pension projections. 4.148 Ms Davies says she provided an update as to expenses and that the vehicle details needed to be updated and that the Claimant would progress this. She says the Claimant confirmed she had completed the disability risk assessment together with Ms Allman and the letter of confirmation was awaited from GC. Ms Davies said that Ms Allman had confirmed she only had an old file without recent information and LH had been contacted about the file who had not responded at that time and this would be followed up. She explained there was no update on the PILON point and would contact CR in payroll to get an update. 4.149 The Claimant said she was disappointed that a meeting had not been arranged earlier as the next steps were due to be reviewed in 4 weeks. It was agreed Ms Davies would contact Mr Coslett and AL to arrange a further meeting. 4.150 On 14 January 2021 Mr Bartlett reported to Ms Davies that he had spoken with LH and she did not have any files for the Claimant [691]. He recorded on the action plan that LH thought the files were sent to Ms Mason at the time of the employment tribunal [717]. 4.151 On 14 January Ms Davies duly emailed AL and Mr Coslett to say she had met with the Claimant and JC and they wanted to arrange a meeting at the start of February to go through where they were with next steps and what they would like to do going forward. She asked for availability dates [692]. 4.152 On 14 January Ms Davies also emailed the Payroll Services Manager asking for an update on the query as to whether the damages PILON could be corrected by HMRC 2018/19 or would it be considered pensionable. A reply was received on 15 January 2021 to say PILON payments are not pensionable but do attract tax and national insurance deductions. The Payroll Services Manager said she was not sure what the Claimant meant by “corrected” [694]. Ms Davies explained the Claimant had a COT3 and had been awarded damages and was querying whether HMRC would adjust them. She said her understanding was the Claimant thought she would not have tax and national insurance taken off the PILON but because this did happen she wanted to check if this was right [693]. 4.153 On 14 January Ms Davies emailed JD in HR filing to check if they had the missing personnel file. JD said she did not, other than some data she set out, which was the Claimant’s enrolment from 2019 [696]. 4.153 Also on 14 January Ms Davies emailed the pension department [697]. A reply was received on 18 January to say currently there was a small break in service from 15/6/2018 to 28/7/2019 which had not affected the section the Claimant was member of. The Claimant still had special class status and could retire with no reduction between 55 and 60. The pension officer said once payroll had reinstated service without a break they would look at amending the pension online to reflect this [698]. 4.153 On 18 January 2021 Ms Jones contacted Mr Bartlett and NWSSP about the form she would need for change of expenses authoriser. On 20 January 2020 Mr Bartlett emailed AL chasing the confirmation of role letter [701]. 4.154 On 25 January the Claimant emailed Ms Davies saying they had agreed on 12 January she would initially submit a mileage claim from July 2019 to July 2020 and that as it was part of the action plan she wanted it completed before the review on 1 February. She said she was having difficulties justifying the red flag alert on each claim [738]. Ms Davies said she would look into it. 4.155 On 25 January Ms Jones told Mr Bartlett she had the form ready to change expenses authoriser but she did not know what date to put as change. She also asked about excess mileage. Mr Bartlett responded to ask Ms Davies to speak to AL about the date Ms Jones would approve expenses from as he did not know what had been agreed about backdating. He said that Ms Jones would be approving normal business mileage from base [705]. 4.156 By 27 January 2021 AL had commenced a period of sickness absence. It was not known at the time, but it subsequently became long term and AL eventually ended up retiring. Ms Davies flagged up to Mr Coslett that she did not know whether AL would be back in time for their meeting with the Claimant. Mr Coslett questioned how much they would achieve without AL as he had not been overseeing the action plan [707]. On 29 January Ms Davies therefore emailed JC and the Claimant saying that AL was off work at the moment and so they would need to cancel the meeting and reschedule [719]. JC said [720]: “Thanks for letting us know. Please send my good wishes to [AL]. We will wait for the next date.” February 2021 4.157 On 3 February 2021 the Claimant said she was still having difficulties getting the justifications to submit and the claim was worth over £1000 to date [737]. Ms Davies replied to say that AL was still off, she was not sure how to override it, and she would email the expenses team for advice [736]. 4.158 As AL was still absent on 3 February 2021 Mr Bartlett emailed Ms Mason saying he did not know how long AL was off and they wanted to know whether to wait for AL to return or arrange for someone else to take over. He set out the action plan and said that for most steps they were waiting for AL to agree next steps [721]. Ms Davies had identified that it was best to escalate to Ms Mason because the authorisation needed for payroll was a head of workforce [723]. Ms Mason’s advice was to wait for AL to return as Ms Mason had been previously involved. Ms Mason suggested that they review where they were in a couple of weeks. 4.159 On 5 February Ms Jones emailed Mr Bartlett saying she had an expenses change form to complete and, while she had put February as the date for expenses approval to change from Ms Allman to her, she did not know whether to put the old base as Keir Hardie or leave it as no change of base. [731]. Mr Bartlett said they were waiting for AL to return to confirm what date the Claimant could claim back to and that would be the date for Ms Jones to approve it from. He said the base should be where the Claimant had agreed to work from substantively. He asked whether it was being said since the return to work the Claimant had changed base from Keir Hardie to Treharris but that the Claimant would only be able to claim normal travel from her base [731]. 4.160 On 8 February 2021 JC asked Ms Davies if there was any way Mr Coslett could resolve things with the expenses, especially if AL was going to be off for some time [736]. 4.161 On 3 February Dr Tidley did a further review preparing a report dated 10 February 2021 [734]. He noted the Claimant was shielding and working from home. He recommended regular posture breaks. He said: “Mrs Protheroe also provided me with an update about the ongoing unresolved issues relating to the grievance she has submitted and from a health perspective I would fully support these matters be resolved as soon as practical. I wish to confirm that I remain fully supportive of all the occupational health advice I have provided to-date including that set out in my report dated the 12th December 2019.” 4.162 On 15 February 2021 the Claimant forwarded the report to Ms Davies saying that Dr Tidley was supporting the advice he gave in December 2019 with regard to reduced workload. She said that on 12 January Ms Davies had said that GC had a letter the Claimant was due to receive by 15 January but she had not received that. She asked for updates on the action plan and for Dr Tidley’s report to be added to the grievance meeting evidence bundle [736]. 4.163 On 19 February 2021 JC asked Ms Davies if she could update them as to what was happening about the expenses [740]. Ms Davies said she would chase expenses again [740]. This was about overriding the red flags so the Claimant could submit a claim. 4.164 On 18 February 2021 LH emailed GC copying in Ms Jones saying she had been informed by Ms Jones that the Claimant was not happy the conditions of her return to work had not been met. She said the Claimant is in a flying start funded full time post and the Claimant has a reduced caseload and carries no safeguarding. LH said this impacted on colleagues who had to pick up the surplus caseload. She said the arrangement had been for some time and the fact it is a flying start funded post was being questioned by the local authority and the position required a full time employee. LH asked if there was a plan in place for the Claimant to have a 3 day caseload the Claimant said was agreed in the meeting with HR and JOK. LH asked if it been agreed where the post will be as the Claimant’s current post required a full time health visitor [747]. 4.165 GC said she was not quite sure what the Claimant was referring to as the Claimant did have a reduced caseload as agreed in the return to work meeting and had returned to full time hours. She asked Mr Bartlett to pick this up with Ms Allman and clarify this, and that some reassurance needed to be given to the LA. LH responded further to say she understood the Claimant was saying that what was agreed in the meeting had not happened and she had a reduced caseload but not enough of a reduction. She said she would like it concluded as it was impacting on staff at the base [747]. Ms Clack asked Ms Allman to meet with the Claimant and “find out exactly what the issue is now please?” The Claimant was not copied in to these email exchanges. 4.166 Earlier that morning a Flying Start Performance Monitoring Officer in Merthyr Tydfil County Borough Council had emailed LH and Ms Jones with a summary of health data. The email attached tables listing health visitors and their caseloads as at 31 August 2020 and 31 December 2020 (as already mentioned elsewhere in this Judgment.) Against the Claimant’s name was a caseload of 107 as at 31 August 2020 and 90 as at 31 December 2020 [744]. There was also a table for number of face to face contacts with the Claimant having recorded against her name: 27 in April to August and 19 in September to December [733]. Around the same time as the other emails LH forwarded it to GC saying: “Please see attached data which although not a full set of data reflects the limited contacts LP is having and impacting on the F/S service delivery.” GC also forwarded this on to Ms Allman. A subsequent email from Mr Bartlett refers to a potential meeting on 5 March but we have no further detail about this. We note LH said it was not a full set of data. 4.167 As observed by Ms Jones in her evidence we accept the data was not accurate for several reasons. This included that it reflected the caseload held against the Claimant’s name but the actual workload she was undertaking as the caseload was also being supported by other Health Visitors. Second, the face to face contacts listed against the Claimant’s name would have been done by someone else but they had been asked not to move caseload figures around in that way because the child in question was allocated to that caseload. What the exchanges do show, however, is support for the finding we have already made that what the Claimant was complaining about was not that she was overloaded with work but that she wanted the official caseload against her name, in effect, reduced to 66 as she believed that was what had been agreed. 4.168 On 25 February 2021 Mr Bartlett emailed Mr Coslett asking for a catch up to see if they could move some of the agreed actions forward in AL’s absence [749]. He said Ms Davies had made progress but could not take matters further forward without more guidance and approval. Mr Coslett also said that whilst Ms Jones could approve the Claimant’s expenses, those that where older than 3 months would need justification and approval of a senior manager. As AL was still absent a decision was made to ask a third Head of Workforce, PD, to support the grievance process. Mr Coslett then approved the role confirmation letter on 26 February 2021 [761] which GC signed and returned on 28 February 2021. On 26 February 2021 Ms Davies also emailed CR in payroll asking what information payroll would need to complete the reinstatement [759]. March 2021 4.169 On 1 March 2021 Mr Bartlett sent the signed role confirmation letter to Ms Davies asking her to give the letter to the Claimant [763]. The letter confirmed the Claimant’s substantive base at Treharris. It said the Claimant was currently managed by Ms Allman and Ms Jones as team leader would authorise expenses. Under reasonable adjustments the letter said: “On the 12/12/2019 you were assessed in Occupational Health by Dr M G Tidley who confirmed you were fit to return to your duties as a Health Visitor and that he would support your return to full time duties over a graduated 3 month period. Additional time to complete your case work was recommended along with any support needed for you to attend any medical appointments. You were reviewed again by Dr MG Tidley via telephone on the 23/04/2020 who again re-affirmed his support for the original advice provided from your appointment with him on the 12/12/2019. Taking into consideration the advice from Occupational Health we have agreed the following to date, which we will continue to review: As advised by Occupational Health, you are working 37.5 hrs on a reduced Flying Start caseload and currently only have 80 families as opposed to 110 full caseload. Travel time into work has been taken into consideration for yourself and you have been given time to attend all required appointments within work time. You have also been supplied with a lightweight scales and backpack carrier which to date you have reported finding easier. In the meantime you will continue to work from home until we have any further updates on advice regarding employees who have returned from shielding.” 4.170 On 4 March 2021 Ms Davies emailed PD saying she had not yet heard from payroll and asking if the Claimant could claim her expenses since her return in July 2019. She went on to say that when the Claimant returned to post the Claimant had an issue with her base which was not confirmed when the Claimant had returned which had affected the expenses claim along with IT issues [768]. Mr Bartlett said Ms Jones was unable to complete the expenses form until they were clear on what she could approve [767]. 4.171 PD’s advice was that if the Claimant had changed base then she would be able to claim change of base mileage as well as any normal mileage accrued and Mr Coslett as manager needed to authorise the account. Mr Bartlett explained he understood the Claimant had requested a different base on her return and suggested that PD and Ms Davies have a discussion and then follow it up with Mr Coslett [766]. 4.172 Ms Davies then contacted Mr Coslett on 10 March to say Ms Jones would be asked to approve expenses back to 29 July 2019 if he agreed. Mr Coslett gave his agreement saying that the claims would, however, need to be scrutinised in the normal way as any travel expenses would be [770]. On 11 March 2021 Mr Bartlett then emailed Ms Jones to say she could approve normal mileage expenses in line with the Claimant’s base from reinstatement onwards and that she would also need to submit a justification for their late submission [771]. 4.173 On 15 March 2021 Ms Davies forwarded the role confirmation letter to the Claimant [772] and said the Claimant needed to add a justification for each item on the expenses claim so that it could be submitted. Ms Davies also emailed payroll again asking what information would be needed to complete the reinstatement [775]. The Claimant replied to Ms Davies’s email saying: “Thank you for the attached letter I am pleased to have one item completed from the action plan.” She said she had added a justification but was still struggling to submit the expenses claim. She asked about the carry over of annual leave which she had mentioned to Ms Davies on 12 January 2021. She said: “It is now a year since I submitted the original grievance… and the action plan arising from the second Grievance submission had a timeframe of 4 weeks ie 18-12-20. The majority of the items on the action plan have had no progress over this time. Do you have any updates for me?”. 4.174 Ms Davies felt somewhat disheartened as she had been working hard and thought progress had been made. Mr Bartlett suggested that they have a discussion with PD who could advise if they needed to reconvene and support with Mr Coslett, as it had been some time since the last meeting and they had not been able to move everything on in AL’s absence [777]. Ms Davies and Mr Bartlett looked into the annual leave issue the Claimant had raised, even though it was not one of the action plan points, and found the Claimant had submitted her leave request on a flexible working application form. On 18 March Ms Davies told the Claimant that the wrong form had been used and a carryover of leave form needed to be submitted but she understood the Claimant’s team leader had resolved this. She said she was trying to contact another Head of Workforce about other progress. 4.175 On 18 March 2021 the Claimant emailed Ms Jones and Ms Davies confirming she had been able to submit the expenses claim but was unsure why she had 3 different bases recorded which initially was Kier Hardie on reinstatement, then Treharris from 29 November 2019 and Prince Charles Hospital (where the Claimant has not worked from) from 1 April 2020 [785]. The Claimant also said: “As agreed in the preliminary grievance meeting I have claimed the excess mileage from Kier Hardie to Fox Street.” Mr Bartlett told Ms Davies to discuss this with PD as his understanding was the Claimant could only claim from the base she was working from in Treharris [784]. 4.176 On 19 March Mr Bartlett and Ms Davies met with Ms PD. It was agreed that with most of the points on the action plan had either been addressed or were in progress Mr Coslett and Ms Davies should meet with the Claimant to review any remaining issues. 4.177 On 21 March 2021 Ms Davies emailed Mr Coslett about this saying: “As this was an informal meeting we could reconvene to discuss the action plan and I would be able to be the HR support. We are still chasing payroll which I have escalated to Karen Wright to see if we can have an answer from payroll in what is needed.” At that time Ms Davies saw payroll as being the main outstanding issue. She emailed Ms Wright saying the Claimant had a COT3 which it seemed payroll had not reinstated correctly. She asked if Ms Wright could escalate it [790]. 4.178 On 30 March 2021 Ms Davies emailed the Claimant and JC to see if they could attend a review meeting of the action plan on 12 April [793] with Mr Coslett supported by Ms Davies. By this time payroll had responded to say they should be able to remove the break in service which should then feed into the pension records. April 2021 – further grievance meetings 4.179 In advance of the meeting the action plan was updated [797-799]. At the meeting on 12 April Ms Davies went through this saying payroll had said they should be able to remove the break in service on ESR which would in turn allow Pensions to update their records. By then Payroll had said it would be ready for the May payrun. The absence data was to be added to ESR. The Claimant had been set up on expenses with agreement to claim them back to the date of reinstatement. The confirmation of role letter had been sent. Ms Davies stated that apart from the personal file that Ms Allman held which contained historical data and information since the Claimant’s return to work it had not been possible to trace the previous file. Ms Davies stated that payroll had confirmed that the PILON payment was not pensionable but did attract tax. 4.180 The Claimant was not happy with how things were. She raised concerns about the time it took for action to be taken following occupational advice and the delay in getting that advice. The Claimant also raised concerns about her missing personnel file, that it contained sensitive information and there should be an audit trail of who had held it. The Claimant said the sickness information did not match the previous employment tribunal paperwork and had been deliberately misleading. She said her base for expenses was wrong and there was no agreement about payment of excess mileage. Mr Coslett and Ms Davies thought these were new concerns not in the original action plan. There was a general consensus that the informal process had probably gone as far as it could in resolving issues. It was decided there would be a further final meeting on 16 April and they could take a look at the new points in the meantime. 4.181 Following the meeting Ms Davies commented to Mr Bartlett that the meeting had not gone as expected and other issues had come out of the meeting that were not part of the action plan but were linked. They were due to discuss this with PD [800]. The Claimant and JC were then sent an invite for a further meeting on 16 April. JC asked for minutes from the meeting on the 12th [804]. 4.182 On 15 April 2021 Ms Jones emailed the Claimant saying she had received the second part of the Claimant’s expenses and wanted to clarify if the claim was for excess mileage from Kier Hardie to Treharris as the amount and distance was consistent for most of the claim. She said to her knowledge excess mileage was not granted [805]. The Claimant forwarded this on to Ms Davies, Mr Coslett and JC asking for it to be clarified as soon as possible and submitting that it was a clear reasonable adjustment advised by OH as she could not work in an open plan office and could not be expected to work alongside her former senior nurse. She asked if Ms Jones had been given information about excess mileage not shared with her. She said the issue had been outstanding for 20 months. 4.183 On 16 April Ms Davies emailed Mr Coslett to say she had compared the sickness data to the ET data and it was exactly the same. She said that she had also found the Claimant’s local personnel file with the employment tribunal file [806]. Ms Davies said that she had an email from the Claimant about excess mileage, that it had not been agreed and the original return to work letter said the Claimant had requested the change in base and that JOK would review the base with the senior nurse but it appeared no review had taken place. 4.184 Mr Coslett’s view was that the action plan had clearly been directed to the “remedy” section of the Claimant’s original grievance. He thought the Claimant was now raising new issues which were interrelated but had never formed part of the original grievance or incorporated into the agreed action plan. 4.185 On 16 April the further meeting took place with the Claimant and JC. The Claimant was upset in the meeting. Ms Davies confirmed in her evidence that the Claimant had said that various adjustments were not implemented and she questioned why policies were not followed in her case. Ms Davies confirmed that the sickness data pulled from ESR had been checked against the data submitted to the tribunal and they were the same. The Claimant confirmed that but said she was referring to the ET3 response form in the previous Tribunal proceedings which she felt had been deliberately completed inaccurately. This would have required further investigation by the Respondent. Ms Davies confirmed that the Claimant’s personnel file had been located, stored with the employment tribunal paperwork and would be sent to HR filing. The Claimant said this was good to hear but she wanted to know what paperwork was held. 4.186 There was a discussion about base and excess mileage. The Claimant explained her base was now showing as Prince Charles Hospital which was incorrect. Mr Coslett said that the Claimant should resolve the wrong base being recorded with her line manager. In relation to excess mileage, Mr Coslett confirmed with the Claimant that no formal application had been made for excess mileage relating to change of base. He said it was not clear if the service would or would not support this. He said this needed to be established first and that the Claimant should apply for excess mileage via the usual process so that an official decision could be made as to excess mileage. He felt the Claimant was proceeding as if an application had been made and refused without having first made a formal application. He considered it was a local operational decision that should first be made locally, and the Claimant could then pursue a grievance about it if she was unhappy once the decision was made. 4.187 Mr Coslett said he believed the original concerns had been addressed and that further issues were being raised about OH delays, inaccurate sickness data submitted to the tribunal and the dispute over excess mileage. He said these could not be resolved through the informal action plan and the Claimant should revert to a formal grievance process if she wanted these fully investigated and responded to. For excess mileage the Claimant should also first make an application via the usual process so that the service could formally approve or decline it. 4.188 On 20 April the Claimant attended Kier Hardie and fell suffering facial injuries. Her sick note of 26 April then referred to anxiety states and stress at work. In fact, the Claimant was never to return. 4.189 On 26 April the Claimant emailed Ms Allman saying: “I am no further forward with the Grievance and Chris Coslett has sent it through to the next stage after two meetings last week. As you can imagine this is extremely stressful especially after a year shielding. I don’t really understand the process and my trust in the system is zero. I am having a consultation with the GP today and have also contacted Occ Health. I will keep you updated.” May 2021/ Grievance outcome letter 4.190 On 2 May Ms Jones flagged up that she was getting system reminders about the Claimant’s outstanding £305.17 in expenses [812]. Ms Jones asked GC saying her understanding was that the Claimant was not to claim excess mileage but the Claimant had said she was not aware of that decision, and that Ms Jones also thought it was part of the ongoing grievance. It was referred on to Ms Davies who sent it to Mr Coslett saying her understanding was that excess mileage had not been agreed. Ms Davies also said the base in expenses was showing as Prince Charles which was not correct and may be confusing the issue [858]. Mr Coslett responded to say it was not agreed and that they had discussed that an application needed to be made in the “usual way” for the Claimant to then potentially escalate it through a grievance if she was not happy with the outcome. He said at the point of the grievance meeting they had no indication whether it would be signed off or not as it did not appear to ever have been formally requested or responded to within the service [813]. 4.191 On 11 May Ms Davies prepared the first draft of an outcome letter for Mr Coslett which Mr Bartlett commented upon [817 – 825]. It was sent on to Mr Coslett to amend and sign with Ms Davies stating that she could send it to the Claimant to close the informal meeting [827]. Mr Coslett returned his amendments that same day asking if it could be reviewed from a HR perspective, particularly at the end of the letter where he had referred to the informal process and next steps. He said if had got anything wrong or taken anything out that needed to be added in such as around the right of appeal then she should feel free to change it [835]. He also checked that it was correct to call the process an informal approach and an outcome letter from a stage 1 grievance meeting. Ms Davies confirmed stage 1 was the informal meeting [844]. The final version was sent to the Claimant on 19 May 2021 [848]. 4.192 The letter said it was written confirmation of the outcome of the stage 1 grievance meeting held on 16 April which was also referred to as an informal grievance meeting. The letter then set out the Respondent’s summary of the series of meetings held prior to that point, saying the Claimant had said she wanted the content of the previous meetings clarified in the outcome letter. 4.193 Mr Coslett said in the letter that when the Claimant on 12 April raised concerns about the time it took for action to be taken following OH issuing their advice he was unable to respond to that as the information was not immediately available and further investigation would be required. The letter said that the actions agreed from the action plan on 16 November had been progressed. The absence data had been retrieved and ratified. Payroll were to rectify the ESR link showing no break in service by the May pay run which would ensure qualification for the 1995 pension. An expense account had been set up. The disability risk assessment had been completed and a letter of confirmation of current base, role, responsibilities and management structures had been sent. The missing personnel file had been located. The position on the PILON had been checked. 4.194 Mr Coslett’s letter said that other issues had since been raised by the Claimant which he felt would require more detailed investigation than could be undertaken through the informal process that he said they had taken to address the Claimant’s initial concerns. He said these included the assertion that the sickness information submitted to the tribunal was deliberately inaccurate, that there were unacceptable delays in making adjustments following the advice from OH, and the issue of approval of excess mileage. The letter said it was not possible to progress any further with the informal approach and that if the Claimant felt she would like to formally progress the new issues then a new grievance should be submitted. In respect of excess mileage in the first instance an application should be made via the usual process. The letter concluded: “I am sorry that we were unable to resolve all of your concerns through the process that we undertook however I hope that the progress in relation to your original grievance has been helpful.” 4.195 On 12 May the Claimant had a telephone consultation with Dr Tidley who prepared a report dated 21 May [855-856]. He said: “I advise that she is unfit for work due to significant stress-related symptoms that have also aggravated her ongoing problems with fibromyalgia. From the information Mrs Protheroe provided to me, I advise that her stress-related symptoms are work-related and continue to be associated with the unresolved issues, I have referred to in my previous reports.” He said that if the Claimant was involved in further meetings about work issues he recommended that she was given an agenda in advance, was given additional time for meetings and to have breaks during the meetings. He said beyond that he did not have anything to add to the advice previously given. Summer 2021 4.196 On 1 June Ms Jones emailed Mr Coslett asking him to clarify whether the Claimant had been made aware she would not be entitled to excess mileage from her previous base. She explained she was waiting to approve or decline the mileage [857]. Mr Coslett emailed GC saying he thought it best he respond to her so that she could discuss with others as appropriate. He said that it had been agreed that the Claimant should get her base changed from Prince Charles Hospital via the usual processes and that needed to be right before expenses could be processed. He said that he had also told the Claimant she needed to make a change of base application via the usual process. He said this had been explained to the Claimant in a letter and that if the Claimant had not progressed this then perhaps GC could discuss it with the Claimant as both should be fairly routine processes [857]. GC forwarded this on to Ms Allman to pick up with the Claimant and Ms Jones. 4.197 On 12 July the Claimant contacted Ms Allman about a meeting [868] which was arranged to take place on Teams on 28 July. LP attended on behalf of GC and DE from HR. The background to this meeting is not clear to us and appears to have itself been confused at the time as the Claimant seems to have believed it was about “retire and return”. The impression given from Ms Allman’s witness statement (and JC’s subsequent conversation with Ms Wright) is that it was with a view to seeing what outstanding issues there were. During the course of the meeting the Claimant raised her concern about her personnel file. According to her notes at [869] she also talked about the grievance process and that she felt Mr Coslett had been sending her round in circles and that the situation was “killing me” as she wanted to get on with her life and get back to work. She also said that her ESR remained inaccurate. 4.198 By 30 July 2021 the Claimant had sent a complaint to payroll, which appears to relate to the PILON dispute [875]. 4.199 The Claimant’s handwritten note of 5 August 2021 [870] says that she was contacted by Ms Allman to say her ESR was updated to show length of service and that Ms Jones had authorised the excess mileage. Neither party led any evidence as to what happened regarding the decision to pay the Claimant’s excess mileage. Both parties just referred to the fact it was then paid. Commencement of stage 3 grievance 4.200 On 6 August 2021 JC emailed HD in the Executive Directorate saying there had been unsatisfactory completion of the grievance policy and the Claimant was requesting to move to stage 3. She said the Claimant was disputing the content of Mr Coslett’s outcome letter and that it did not reflect the overall agreement, the issues raised remained unresolved and the policy had not been applied correctly [876]. One of the attachments was headed “chronology of Lisa Protheroe grievance” [877-878]. It is in narrative form. Amongst other things it said that the COT3 without a break in service had not been achieved and was viewed as a potential breach. It was said that at the meeting in July 2019 it had been made clear to the Claimant that other than the detail of the return to work they were not prepared to discuss the COT3. It said that it was agreed the Claimant would be assessed by OH urgently to review reasonable adjustments and that the new base had been agreed with associated travel expenses as a reasonable adjustment. The chronology said that OH did not assess the Claimant until December 2019 as there was a delay in sending the referral. It said that OH advised the Claimant needed reasonable adjustments in relation to a base away from Kier Hardie and excess mileage to ensure no financial detrimental impact. It said it was also recommended that the Claimant have a reduced caseload to support her health in relation to the disabilities. 4.201 The chronology then listed several issues which it said had then become apparent including ESR giving the Claimant a new staff number with an impact on annual leave and sick leave allocation, that the Claimant had been unable to claim mileage including excess mileage that had been agreed, that the pension showed a break in service and failed to place the Claimant in the 1995 scheme, that line management was unclear and the Claimant’s personal file had disappeared. 4.202 The chronology recorded that the Claimant then submitted a substantial grievance which had been caught in Covid 19 delays. The chronology said the Claimant had later been told by Mr Bartlett he could not locate her original grievance submission with no explanation given as to where this information, with personal identifiable information, had vanished. 4.203 The chronology said that at the first grievance meeting the delays were acknowledged and attention paid to the issues in an agreed action plan. It was said that AL had agreed the issues were not in compliance with the COT3 and set a timetable to resolve them. It was said AL had said Ms Davies would ensure the Claimant was set up correctly for expenses and the form would be sent to Ms Allman for authorisation. It was said that the Claimant had subsequently submitted one year’s worth of mileage which included the excess mileage in line with the reasonable adjustment and that: “This has now stopped, and Lisa continues to be unable to claim mileage undertaken on behalf of the HB.” The chronology referred to there being several more meetings where Ms AL was not present and they had been told she was absent but now knew she had left the organisation. 4.203 The chronology identified outstanding issues from Mr Coslett’s letter as being:

• The Claimant’s ESR continued to show her as having a break in service in contravention of the COT3;

• Because of this the Claimant remained in the wrong pension scheme;

• The Claimant’s personal file for the time she was health visitor remained missing, this was concerning for her and she was yet to receive an explanation regarding this;

• The Claimant continued to be unable to claim mileage as her base remained incorrect;

• The Claimant still had not had acknowledgment and implementation of the OH reasonable adjustment recommendations. 4.204 The chronology also said that the Claimant wanted to raise that Mr Coslett’s letter was not correct as she had submitted her grievance at stage 2 not stage 1 and that it closed the situation down without advising the stage 3 process or timelines to undertake this. It said the Claimant was raising these issues to stage 3 in an attempt to resolve the outstanding issues. Ms Davies forwarded the email on to Ms Wright for advice on how best to proceed in AL’s absence as she thought it was at stage 1 not stage 2. 4.205 On 21 July Dr Tidley had a telephone consultation with the Claimant and prepared a report dated 12 August [943]. He advised the Claimant remained unfit for work and it was due to her ongoing significant stressrelated symptoms and also her problems with fibromyalgia, aggravated by her continuing stress. He advised she was unlikely to remain unfit for work for at least 2 months and he had nothing more to add to the previous advice given. 4.206 On 17 August 2021 the Claimant attended a sickness meeting with Ms Jones on teams. The subsequent letter [946] records the Claimant saying she felt that since returning to work 2 years ago issues prior to the tribunal had not been resolved and it was causing sleepless nights and other stress related issues. It records the Claimant being offered a change of base to Calon Las where there would be more staff to support the Claimant, but the Claimant felt it would be more difficult than returning to a caseload she had some knowledge of and an office where she felt comfortable. It was agreed the clamant was still unfit to attend work and another review meeting would be held after the next OH appointment. 4.207 Ms Wright noted it seemed some of the resolutions put forward in the outcome letter had not been fully implemented such as changing the ESR. She thought some of the issues should be relatively easy to resolve and could not understand what had prevented NWSSP from doing so previously. She asked Ms Davies for some more documents which were provided on 17 August. Ms Wright reviewed those and then spoke with JC. Ms Wright checked with JC that the Claimant wanted to proceed on the basis of a stage 3 appeal rather than revert to stage 2 and JC confirmed that was the case. JC also stated that further attempts had been made to resolve things in July but certain transactional issues were still outstanding from the grievance. It was agreed that Ms Wright would try to work through some of those transactional issues in the first instance and would then meet with JC and the Claimant to work out the status of the remaining concerns and agree a way forward. 4.208 On 3 September 2021 JC emailed Ms Wright [948] apologising for the delay in responding as JC had been on leave. She said she had caught up with the Claimant who was pleased that Ms Wright planned to resolve some of the transactional issues raised in the stage 3 paperwork. She said the Claimant would like an update and for contact to be by letter. Ms Wright was told the Claimant needed time to prepare with an agenda for meetings. On 7 September Ms Wright responded to say she now planned to meet with NWSSP Payroll and Pension leads to resolve these matters and when they had been and the changes made they would meet for an update [949]. 4.209 Ms Wright arranged a meeting with the Head of Payroll for 23 September but it was cancelled when CR said everything was now correct in ESR other than confirmation of the base which was still showing as Prince Charles Hospital. Ms Wright said she would confirm the base so it could be updated on ESR [951]. 4.210 On 22 September JC emailed Ms Wright [952-953] saying the Claimant was aware of some transactional changes occurring but it would be helpful to have an update. She attached the most recent OH report and asked for discretion to be exercised to maintain the Claimant on full pay whilst the grievance issues were fully resolved. 4.211 JC said that outstanding issues remained: “1.The initial Grievance was submitted in March 2020 processing and loss of this personal data has still not been resolved. The subsequent handling of the Grievance has been confusing and stressful. The Action Plan from November 2020 at second stage remains unresolved.” The email identified that the second issue was the loss of the Claimant’s personal file. It said the Claimant had been formally requesting to see an accurate and complete personal file since February 2020. The email set out a summary of what the Claimant had been told about her personnel file but did not mention the Claimant being told that Ms Davies had found the file. It was said that Ms Jones had advised in a sickness meeting on 17 August 2021 that she did not have access to the Claimant’s personal file and Ms Allman stating the file available was missing large amounts of data. 4.212 The email identified a third outstanding issue of “reasonable adjustments and OH delay.” It was said no explanation had been given for the delay in the whole process, that advisory OH reports had not been actioned and management structure and base were unclear which caused issues with excess travel and stress. 4.213 The fourth issue was identified as “inaccurate data” and that the new staff number and ESR had caused numerous problems with the Claimant being treated as a new starter without continuous service for sickness and annual leave and no historical absence records. It was said the data Ms Davies had retrieved (relevant to the previous tribunal claim) did not include any evidence of repeated absence episodes, formal process or warnings and that they had highlighted to Mr Coslett that the information submitted to the tribunal by the health board was wholly inaccurate and was felt to be deliberately misleading. It was said this issue had been first addressed to Ms Mason and JOK in the 22 July 2019 meeting. 4.214 The email recorded that progress had been made in that the Claimant now had a mileage expense account and had that month been paid for excess travel and that she now had a link to her total rewards statement showing her in the correct pension scheme. Further progress of the stage 3 grievance 4.215 On 29 September 2021 Ms Wright responded, apologising for the delay and saying the focus was once again on dealing with Covid pressures being managed with a reduced staff capacity. She provided an update on some of the grievance matters and noted it appeared payroll issues had been resolved. She asked for a quick meeting with JC to help with her understanding of some other issues and she offered some dates in early October [955]. The attachment confirmed that continuity of service was resolved and that JC had advised the expenses account set up had been resolved. Ms Wright said she was going to try to locate the Claimant’s personnel file [957]. At that point she did not appreciate that Ms Davies had already found it. 4.216 The meeting did not go ahead in October as JC did not get back to Ms Wright. JC emailed Ms Wright on 2 November 2021 apologising [968] and asking for fresh availability dates. On 12 November Ms JC chased this up [967] and on 17 November 2021 Ms Wright apologised for the delay in responding saying Covid was on the increase, it was depleting the HR team and taking her away from her workload. She offered dates for a meeting and provided a proposed agenda [966]. She said she understood two further issues had been resolved of the mileage expenses being paid and the pension start date of 1983 showing with special class pension age of 55. 4.217 JC responded to say she fully appreciated the current pressures faced by the organisation and a date of 23 November was agreed [973]. Ms Wright’s evidence, which we accept, is that from September 2021 NHS Wales were dealing with a high number of ongoing clinical Covid 19 cases putting the services under pressure. In addition she was heavily involved in planning and managing workforce pipelines and recruitment to get the workforce to deliver the next vaccination programme against Welsh Government targets. She was working very long hours, often 7 days a week, with little spare capacity. 4.219 On 19 November Ms Jones contacted the Claimant about a sickness absence meeting [999]. The Claimant said she had a meeting coming up with Ms Wright and asked if it could be done at the same time or just after as she found the meetings and the whole process devastating after everything she had been through and it would minimise the ongoing stress the health board were subjecting her to [1000]. Ms Jones asked HR if they could move outside the long term sickness policy as there were other ongoing meetings. At the time the HR advisor said that it seemed Ms Wright would also manage the Claimant’s sickness absence [999]. 4.220 On 23 November Ms Wright met with the Claimant and JC. The Claimant set out a number of issues she felt still needed to be dealt with properly including the handling and timeframe for her grievance, her missing personnel file, the sickness attendance record that had been presented at the tribunal, the reasons for the late referral to OH, and the level of her sick pay. Ms Wright thought the original submission of the grievance had not been properly handled and she apologised for any distress or confusion this had caused. She also felt the process then followed was unclear. She apologised for any confusion caused. 4.221 Ms Wright had by then appreciated that Ms Davies had found the personnel file. She said it was being kept securely but she had not reviewed its content. The Claimant asked for access and Ms Wright said CN from the Information Governance team would assist with a subject access request. 4.222 They also went through the remaining issues in the grievance appeal identifying what outcome was sought and what action would be taken to resolve the issues. Ms Wright then suggested she review the outstanding issues and provide a written outcome rather than having a formal stage 3 appeal decision hearing. The Claimant and JC agreed to this. Ms Wright extended the Claimant’s full pay sick pay until the end of January 2022. After the meeting on 23 November Ms Wright emailed CN asking her to liaise with the Claimant about the subject access request. She also asked Ms Davies to give CN the personnel file that Ms Davies had requested. 4.223 On 24 November 2021 Ms Wright sent a list of questions to Mr Bartlett and Ms Davies [984, 985]. She asked why the April meetings were referred to as informal grievance meetings when the Claimant had clearly submitted a request for the meeting to be heard at Stage 2 and said this “has implications as the wrong process was followed and LP was not advised of her right to appeal at Stage 3. The implications being, the case fell into a rabbit hole and remained unresolved and a source of stress for LP 12 months later.” 4.224 Also on 24 November Ms Wright sent draft notes of the meeting to the Claimant and JC [991 - 997] with agreed actions. She said she would continue to work through the agreed actions with a view to provide a stage 3 response as soon as possible and no later than 31 January 2021. 4.225 On 24 November 2021 Ms Wright sent some questions to occupational health [998]. Once the Claimant had provided consent these were answered on 30 November 2021 [1004]. The OH nurse said the referral had been made by Ms Jones on 30 September and there had not been referrals from Ms Mason or JOK. She said the waiting time for OH appointments at the time was approximately 12 weeks. 4.226 Mr Bartlett and Ms Davies provided written responses [990, 1005]. Mr Bartlett said that PD had advised Ms Davies to write an outcome letter to confirm what had been done to close off the process that was agreed as being informal. Ms Davies likewise said it was PD’s advice to refer to the April meetings as informal grievance meetings and that for further issues the Claimant would need to resubmit the grievance and it would go to a stage 2. 4.227 The Claimant remained on sick leave with the GP providing sick notes for “anxiety states.” 4.228 On 6 December the Claimant sent Ms Wright some documents Ms Wright had requested [1010]. One of these was the ET3 submitted in the original tribunal claim which the Claimant said contained a number of false and unsubstantiated statements. 4.229 On 13 December the Claimant returned the meeting notes with amendments and comments underlined [1043]. The notes show Ms Wright apologising for the manner in which the grievance process had been conducted and the unacceptable timescales. She said that the appropriate grievance policy and process had not been followed. 4.230 In the amended notes the Claimant said that her concerns mainly related to the submission of her grievance to Ms Allman on 6 March 2020 [1044]. She said she wanted to know where her original grievance and the sensitive information sent with it had gone. She said she did not receive a formal acknowledgment until November 2020. She accepted her grievance had been initially paused due to covid but said she did not understand why she did not have a formal grievance hearing until April 2021. The Claimant added in her amendments to the notes that although the timeframes of the grievance were paused the policy should still be followed to ensure safety. 4.231 The Claimant said she had not agreed to accept an action plan instead of a formal grievance hearing but had agreed it would be an aide to address some of the issues such as mileage expenses. She said she had expected a formal grievance hearing as well as the delivery of the action plan. The identified outcomes sought were for the Claimant to understand why the grievance was managed via a process that was different to that used for other staff, and to understand why her formal grievance was not heard until 16 April 2021. Actions to be taken by Ms Wright were to investigate, while the grievance was paused, where the paperwork was sent and who retained it. Secondly, for Ms Wright to investigate why and who made the decision to offer the Claimant an action plan to resolve her issues outside of the grievance policy. Ms Wright was also to investigate why the Claimant’s stage 2 grievance did not progress to a formal hearing prior to 16 April 2021. 4.232 The Claimant said she did not accept the April 2021 meeting was an informal grievance meeting as she had requested a stage 2 grievance meeting. She added that it was her and JCs understanding that the meeting of 16 November 2020 was a stage 2 hearing as set out in the formal acknowledgment letter and that AL had stated at the time because there were several complex issues in the stage 2 grievance an action plan would be one outcome with regular reviews. The Claimant said that the confusing and protracted process meant she had to repeatedly explain and relive the events of the past year to managers who appeared not to have read the evidence submitted, especially that of OH, and that it led to a relapse in symptoms. The outcomes sought were identified as recognition the meeting on 16 April 2021 was a stage 2 grievance meeting and not an informal grievance meeting. Secondly, recognition that the poor handling of the process had been particularly damaging to the Claimant who often got upset in the meetings and felt she could not put her points across. 4.233 Ms Wright confirmed in the minutes that she acknowledged the meeting on 16 April 2021 should have been under stage 2 of the grievance policy and she offered the Claimant an unreserved apology and said she would make a written apology. The other actions to be taken were that Ms Wright would review/investigate the outstanding points of the grievance and provide the Claimant and JC with a written stage 3 outcome, rather than the Claimant having to relive the details of things again. Ms Wright said she would provide an outcome letter by 31 January 2022 and if she could not do so she would seek to agree a mutual extension of time with the Claimant and JC and extend full sick pay. 4.234 The Claimant said she was entitled to see and have a copy of her personal information, that this had not been forthcoming from the health board, and she had been asking about this since March 2020. Ms Wright confirmed that Ms Davies held the personnel file in a locked cabinet in the HR department. The outcome sought was that the Claimant wanted to have access to specific documents in her personnel file and the action to be taken was that Ms Wright would put the Claimant in touch with the data protection officer so that the Claimant could obtain the file via a subject access request. 4.235 The notes recorded a discussion about the Claimant’s concerns that the health board had submitted inaccurate or incorrect sickness data to the previous tribunal and the Claimant said her belief was it was a deliberate attempt to prejudice the court against her. She said the health board had refused to discuss the manner with her as they said it was dealt with via the COT3 and therefore the matter was closed. The Claimant said it was raised in the meeting of 22 July. The outcome sought was that the Claimant wanted to have access to specific sickness absence documents on her personnel file as she alleged the sickness information presented to the tribunal was not accurate and may not have been her data. The action to be taken was for Ms Wright to establish if the ET bundle was still available and if the document was contained within it and, if so, to then investigate who provided the information and the data source. 4.236 The Claimant said she wanted to understand why she was not immediately referred to and seen by OH on reinstatement and she believed that JOK and Ms Mason neglected to complete the paperwork. Ms Wright initially recorded in her notes that she thought the Claimant was saying she was unable to return to work and had to remain off work. The Claimant clarified in her amendments that the meeting on 22 July was hostile in nature and shut down attempts to discuss reasonable adjustments in any detail. She said JC’s request for the Claimant to retain her original staff number and email address were refused which led to the problems. The Claimant added in her version of the notes that she returned to a full time caseload on 29 July 2019 before being assessed by OH which was in breach of the COT3 and that this caseload had been vacant for a number of months. The Claimant raised concerns that despite clear medical evidence from Dr Tidley in his report of 12 December 2019 and subsequent reports the advice was not acted upon i.e. no reduction to work caseload [1050]. The outcomes sought were to understand why JOK and Ms Mason did not immediately make the referral to OH and: “To understand why the Occupational Health advice set out in the Occupational Health Advisory Report, dated 12 December 2019 was not acted upon then or to date and why the reasonable adjustments and occupational health advice provided in April 2020, September 2020, February 2021, May 2021 and August 2021 weren’t acted upon.” The actions to be taken were for Ms Wright to approach OH to get a chronology of the referral process and the Claimant would email a copy of the OH report of 12 December to assist with the investigation/review process around the issue of implementing adjustments. 4.237 On 13 December 2021 Ms Wright acknowledged the amended notes and said due to her involvement in providing the workforce for the accelerated mass vaccination programme she would not be able to review the suggested amendments or get back to the Claimant before the beginning of January at the earliest [1054]. 4.238 On 31 December 2021 Ms Jones emailed Ms Wright to confirm that Ms Wright was undertaking the long term sickness meetings. On 4 January 2022 Ms Wright said that she was only dealing with the grievance and all other matters should be managed by line managers [1055]. Ms Jones then undertook a long term sickness meeting by phone on 14 January 2022 [1067]. The Claimant identified she was waiting for a grievance outcome from Ms Wright due by 31 January and that she was feeling worse because she had to pass on legal paperwork which the health board had submitted to court and had subsequently been lost, she had had 9 grievance meetings without outcome and paperwork had been sent to Ms Wright for investigation. The Claimant also said that having had her personnel file it appeared that not all the file was present. The Claimant said until there was a resolution to her grievance she could not make any decisions about her plans going forward. Ms Jones said she would check whether the next meeting would take place in March as the Claimant was finding meetings were exacerbating her anxiety. 4.239 On 19 January 2022 JC asked Ms Wright for an update [1068] and asked when it would be possible to meet again to enable the Claimant to have surety regarding the process especially due to the impact on her. Ms Wright responded to say she had left a message with JC’s secretary that morning and had been in crisis mode since before Christmas. 4.240 On 26 January 2022 Ms Wright emailed some questions to Ms Allman [1069]. She had previously thought that Ms Allman had left the service on retirement but the Claimant had let Ms Wright know that Ms Allman had returned. The questions were about the Claimant’s original grievance. Ms Wright also emailed some questions to JOK [1072] who responded on 30 January to say she was on compassionate leave. JOK suggested that Ms Wright review it with Ms Mason and then let her PA know if further information was then needed. Ms Wright then spoke with Ms Mason on Teams about the 22 July 2019 meeting, the sickness data, the OH referral, and the submission of the original grievance. Ms Mason in her evidence also confirms she spoke with Ms Wright and we accept that they did speak. 4.241 On 31 January Ms Wright emailed the Claimant and JC to say that despite her best endeavours she could not meet the deadline. She explained that due to Covid December and January had been very challenging and HR resources had been focused on supporting recruitment for acute wards and vaccination centres. She said she had started writing it up and had one interview outstanding with JOK on her return from compassionate leave. She said she hoped to get the outcome letter out by 10 February 2022 [1073]. Ms Wright extended the Claimant’s full sick pay until the end of February 2022. 4.242 On 8 February 2022 Ms Jones asked HR if a February sickness absence meeting was necessary or whether it could wait until March after the OH review. The advice was that under policy they should be every 4 weeks and the meetings were intended to be supportive [1076]. 4.243 On 11 February 2022 [1077] JC chased Ms Wright. Ms Wright responded on 13 February to say she was currently having to work on it at weekends due to work pressures but with a fair wind she hoped she could have it out by the end of the next week or the beginning of the week after. 4.244 On 15 February the Claimant asked Ms Jones if HR could discuss her case with Ms Wright to be appraised of the situation and to avoid the Claimant having to explain the issues to another person at the sickness absence meeting [1083]. HR advised that the remit was to meet to provide support about enabling a return to work and anything to do with other processes such as grievances they would not be able to comment upon anyway [1083]. The sickness absence meeting took place that day [1084]. The Claimant said she was not in a good place as deadlines given by Ms Wright had not been adhered to. Stage 3 grievance outcome 4.245 On 18 February Ms Wright sent the stage 3 grievance outcome letter [1092 -1105]. She apologised for the delay in providing it again explaining it was due to pressures of the Omicron wave. 4.246 The Claimant’s complaint about the management and retention of her original grievance paperwork was upheld. Ms Wright found Ms Allman had confirmed she had acknowledged receipt of it to the Claimant and had handed it to JOK. Ms Wright said JOK had said she could not now recall whether she forwarded the written grievance documents to HR. Ms Wright said that HR managers commonly open e-case files where paper documents are scanned, saved and the originals destroyed. She said that as AL had left the organisation her account had been closed so AL’s files could not be checked. She said it was not possible to determine who or where the original grievance documents were filed and could not confirm with certainty whether JOK and/or AL appropriately managed the documents in accordance with the records management policy. 4.247 The Claimant’s complaint that her original grievance was not acknowledged until November 2020 was upheld. Ms Wright noted the pause that had been placed on grievances due to the pandemic but said the manager dealing with the case had a responsibility to acknowledge the grievance and inform the Claimant that the process had been paused in accordance with the agreement with trade unions. 4.248 Ms Wright identified a complaint that the formal grievance hearing was delayed until April 2021. She did not uphold that point based on a technical analysis that a stage 2 grievance hearing had taken place on 16 November 2020 and stage 2 had therefore commenced by 16 November 2020 but did not conclude until April 2021. She did, however, uphold other points relating to the process followed. 4.249 Ms Wright identified a complaint that: “the meeting held on the 16 November 2020 was not a formal Stage 2 Grievance Hearing and you did not agree to accept an action plan instead of a formal hearing.” She held that it was arranged and conducted as a Stage 2 Grievance Hearing and that the action plan was an agreed outcome of the formal stage 2 grievance hearing. 4.250 The Claimant’s grievance that the development of the action plan resulted in her stage 2 grievance being dealt with differently was upheld. Ms Wright held that the development of an action plan to aid the resolution of concerns was an appropriate grievance outcome under the Grievance Policy. She said that as there are no stage 2 grievance hearing meetings notes or outcome letter it could not be determined with certainty whether it had been confirmed an action plan would be just one of the outcomes to address the issues raised. Ms Wright said the chair did not provide a formal letter setting out the outcome of the 16 November meeting which was in breach of the grievance policy and this may have contributed to the uncertainty about the status of the meeting and the action plan. 4.251 The complaint that the Claimant was required to attend several meetings without an agenda was not upheld. Ms Wright said in some cases it can take more than one meeting to resolve a formal grievance and they were a continuation of the formal grievance process which did not require formal agendas. She said there was no evidence that the Claimant or JC had asked for an agenda in advance of meetings and the OH report of 12 May 2021 post-dated the meeting of 16 April. Ms Wright said the meeting of 28 July 2021 was outside the scope of the grievance appeal process. 4.252 The complaint the Claimant had to repeatedly explain and relive events during the stage 2 grievance process was upheld. Ms Wright said several meetings can be needed but there had been a change in HR Support after the first meeting which may have had an impact on case continuity and that it took 4 meetings over a 6 month period to complete the process such that the Claimant was required to explain and relive the circumstances that led up to the stage 2 grievance. Ms Wright said she had no doubt the Claimant may have found the protracted process upsetting, stressful and embarrassing especially when the Claimant felt she could not get her points across. 4.253 In relation to the personnel file, Ms Wright found that during the stage 2 process the Claimant should have been advised to make a subject access request which would have ensured the Claimant’s concern was addressed in a timely manner. She said it was unacceptable the Claimant had to wait over 12 months to obtain the information requested. 4.254 The grievance complaint about the sickness data presented to the tribunal preliminary hearing was not upheld. Ms Wright said the ESR sickness absence report data submitted to the preliminary hearing on 7 January 2019 had been checked against the sickness records on the personnel file. She said 6 occasions of sickness absence matched and one episode of sickness from 20 April to 24 April 2015 was not on the personnel file. Ms Wright also identified that 3 short term sickness absences in 2013 to 2017 had been omitted from the tribunal response. She said there was no evidence to support that the health board had submitted information to the tribunal to prejudice the court against the Claimant. 6 out of 7 cases had been correctly report and the full sickness absence record had not been reported in the tribunal submission. She commented that the Health Board as Respondent in the ET case was entitled to provide any information, data, or evidence which it believed assisted them to defend the claim, as advised by the legal team and it was for the Judge to determine the relevance, integrity and merit of the information submitted by both parties when ultimately deciding a case. 4.255 Ms Wright also did not uphold the complaint that the tribunal had been incorrectly informed that the Claimant’s sickness absence was being formally managed. She said an informal counselling meeting about frequent short term sickness absence had taken place on 2 February 2017 so the Respondent had correctly said the Claimant’s sickness absence was being managed in the formal sickness absence process. She said the Claimant’s long term sickness absence commencing on 25 October 2017 was also managed formally under the sickness absence policy. 4.256 Ms Wright did not uphold the complaint that the Respondent had refused to discuss the sickness absence data as it was dealt with by a COT3. She said Ms Mason had told her that she had no recollection of refusing to discuss the matter with the Claimant due to there being a signed COT3, and that she could recall confirming to the Claimant she would check the accuracy of the sickness absence dates submitted to the tribunal, that she had done so, and informed the Claimant she believed the information to be correct. 4.257 Ms Wright upheld the complaint about delay in making the OH referral. She said Ms Mason had told her that it had not been JOK’s intention to complete the referral as she was not the line manager, that it was also not Ms Mason’s responsibility, and she believed JOK had informed Ms Allman to send the referral. Ms Wright said it was appropriate to delegate the task but JOK did have a responsibility to ensure that the referral was actioned by Ms Allman in a timely manner. 4.258 The complaint that the Claimant was not referred to OH prior to her return to work was upheld. Ms Wright noted there was no evidence the Claimant objected to returning to work on 29 July prior to the OH assessment but that it was accepted this part of the COT3 was not complied with. 4.259 Ms Wright understood the Claimant was complaining about a lack of reasonable adjustments in advance of the return to work. She did not uphold this complaint. She held that the letter of 22 July showed the Claimant’s health status had been discussed and set out the agreed terms of a return to work plan to reflect and accommodate reasonable adjustments, and said that once the OH report was received they would consider any recommended, additional reasonable adjustments. Ms Wright did not uphold any complaint that the delay in the OH referral prevented the Claimant’s return to work as the Claimant had returned on 29 July 2019. 4.260 In respect of the complaint that subsequent OH advice was not acted upon, Ms Wright said she had reviewed the OH reports of 12 December 2019 and 23 April 2020. She said that as she was not involved in the management of the Claimant’s current ongoing period of sickness absence it was not appropriate for her to comment on this matter as part of the grievance process. She said it related to the ongoing management of the Claimant’s long term sickness absence and return to work. She said she would write to the Claimant’s manager and copy in HR and request that they revisit the OH reports received from 12 December 2019 to date and consider the recommendations in respect of the Claimant’s return to work when she was assessed as fit to do so. Mrs Wright said in evidence that her understanding was that there were no outstanding adjustments following the letter from the line manager and the completion of the transactional issues. She said that historically recommendations had varied due to shielding and the Claimant’s sickness. She said the Claimant’s current sickness absence was being managed separately and she felt it would be inappropriate to comment on this, hence her referral back to Ms Jones and HR. 4.261 Ms Wright also said in her appeal outcome that when they met one of the outcomes the Claimant said she expected was to receive a formal apology. Ms Wright then set out in writing a sincere and unresolved apology for:

• The negative impact the protracted grievance process may have had on the Claimant’s physical and mental health since March 2020;

• Any distress and anxiety experienced because of delays at stage 2 of the grievance process;

• Being unable to confirm with certainty whether the manager or head of workforce had retained the original grievance document in accordance with policy;

• For the manager responsible for the grievance failing to provide a written acknowledgment letter and failing to inform the Claimant her grievance would be paused within Covid;

• For the chair of the stage 2 grievance hearing breaching policy by not providing a written outcome letter on 16 November;

• For not holding timely meetings after the 16 November meeting due to the long term sickness absence of AL;

• For failing to communicate correctly that the meetings on 14 and 16 April were a continuation of the stage 2 grievance process and not informal meetings;

• The distress and anxiety due to having to attend a number of stage 2 grievance meetings which required the Claimant to explain and relive events;

• The failure to provide correct subject access advice and support the Claimant in obtaining her personnel file in a timely manner;

• The delay in referring the Claimant to OH which was a requirement of the COT3. 4.262 Ms Wright concluded by saying: “The Stage 3 grievance process and findings has confirmed that there were elements of the management of your grievance, which did not go as expected, from your perspective and that of the Health Board. In keeping with our values and behaviours, the Health Board is committed to listening, learning and improving, when things do not go as expected. This process recognises and acknowledges that there are learning opportunities for the managers involved in this case and the wider HR Team. We will feed back the learning from this process to the relevant individuals. In respect of the matter raised at the Stage 3 Grievance Appeal Hearing process, the written appeal conclusions, decisions and the apology contained in this letter are final. There is no further right of appeal under the Grievance Policy, regarding any of the matters raised above.” 4.263 Ms Wright then provided Ms Jones with an extract relating to her decision outcome about revisiting OH advice [1106]. We also accept that Ms Wright did provide feedback to others involved. HR have a KIT meeting once a week and Ms Wright used one to pick up on things that had not gone well in the department and used it as feedback for general learning. She also feedback to Mr Coslett, Ms Davies and Mr Bartlett about the process followed and how it had been a stage 2 process and it was wrong to have called it informal. Ms Wright said as an organisation the Respondent has a learning and improvement culture and not a culture about blame and she expected the individuals involved to consider the findings as part of their own reflective learning processes. Her view was also that the failings in the case were not deliberate or of a kind that required disciplinary action. Following the grievance outcome 4.264 On 3 March 2022 Ms Jones sent the Claimant a sickness meeting outcome letter from their meeting on 15 February [1115] 4.265 On 17 March 2022 the Claimant make a complaint about LH to the NMC [Bundle B – 42]. 4.266 On 28 March 2022 the Claimant’s GP signed the Claimant off work for another 3 months with “anxiety states” commenting: “depression/ fibromyalgia – states as per advice from occ health.” 4.267 On 11 March 2022 the Claimant contacted Ms Wright and Ms Jones about taking some annual leave (which would keep her on full pay) and carrying over the maximum of 75 hours into the next year [1120]. It was something she had been exploring from before the stage 3 outcome letter. Ms Wright provided some assistance and the requisite authority to allow the Claimant to backdate some days as annual leave. The annual payment was not properly processed (because payroll said a specific form need to be completed) and was sent in a subsequent pay run on 29 March. 4.268 On 29 March 2022 Ms Jones conduced a further sickness absence meeting [1135]. The record confirms the Claimant saying she had suffered a flare up of her fibromyalgia probably due to stress. The Claimant said she was considering making contact with the wellbeing team for 1 to 1 support and there was a discussion with her about applying for Personal Independent Payment. It was agreed the Claimant remained unfit for work and there would be another meeting in April. 4.269 On 5 April the Claimant emailed Ms Wright asking for help in resolving the PILON aspect of her grievance [1137]. The Claimant referred to the payment received in June 2018 and said that the response she got from NWSSP after 2 years was that the PILON was contractual as staff contracts in 2021 included the termination clause. She said she had pointed out that was an error as there was no provision for PILON in her contract but they were unbending. She asked that the team write to NWSSP about it. She said the PILON issue was still outstanding in the stage 3 remedy. The Claimant in her witness statement, and Ms Wright in her oral evidence accepted, that Ms Wright did respond to the Claimant albeit we do not have that email. Written response to the stage 3 grievance outcome 4.270 On 13 April 2022 JC sent to Ms Wright and HD a response to the stage 3 formal grievance outcome [1141- 1145]. The letter said the Claimant was pleased the health board had acknowledged the delays in the grievance process and appreciated that sick pay had been extended. The letter said the Claimant felt it was important for her to respond as the outcome letter has raised questions and observations, as outlined. It was said: “Lisa also appreciates this is the end of the process.” 4.271 The letter said it was disappointing that JOK could not recall what she did with the original grievance bundle and the fact the grievance was not addressed in any form at the time of submission caused a great deal of distress for the Claimant, and having no idea where all her personal information is leaves her feeling vulnerable regarding the safety of her personal information. She said there was a serious and ongoing data breach and wanted to know if it had been shared with the ICO. 4.272 Regarding the protracted grievance process, the letter said that for the Claimant it was not that the formal process was delayed until April 2021 but that the letter of 11 May 2021 caused her concern and the reference to being at stage 1. It was said this had led the Claimant to question whether Mr Coslett understood the concerns raised by the Claimant and the application of the policy due to the inconsistencies as to what stage the process was at. The letter said this was reinforced by the 11 May letter saying that the issues needed a more detailed investigation than could be done through the informal process and that a new grievance should be submitted. 4.273 The Claimant complained that that she had not been told in November 2020 that Ms Davies was only attending to observe for her development and that they had understood Ms Davies was there to take notes. 4.274 The letter said the Claimant had made clear in the amended November 2021 notes that she regarded the meeting of November 2020 as formal and that AL had stated that the action plan was only part of the process to address the serious financial issues. She said Ms Wright’s findings in this regard had misunderstood the issue and did not reflect her amended notes or Mr Coslett’s letter of May 2021. The Claimant said Ms Wright’s finding contradicted the notes where Ms Wright had offered an apology for the inappropriate stage of the process being followed. 4.275 The Claimant said she was concerned about the absence of meeting notes and would like learning to be taken from that. She said she continued to feel she had been treated different in the application of policy and the Health Board did not have her best interests at heart. 4.276 The Claimant said aspects of policy were not followed throughout the grievance policy and the original grievance went in in March 2020 and yet in April 2021 she had no outcome and issues such as excess travel were still disputed. 4.277 She said it was misleading for Ms Wright to suggest the health board did not know about the impact on her health. She said there were frequent changes of personnel in meetings which did not help and they often did not appear to be correctly appraised of the issues. 4.278 The Claimant said she was extremely disappointed that the complaint about sickness data presented to the ET preliminary hearing was not upheld. She referred to matters that were part of the original tribunal claim settled by the COT3, by saying she strongly believed that the sickness absence policies that applied to her were not correctly applied and that LH had terminated her contract incorrectly. She said she felt the process implemented was misrepresented within the documentation supplied by the health board to the tribunal in that original claim. 4.279 The Claimant also disputed the conclusion about the ET3 submission in the original tribunal claim. She said that two separate incidents, one short term and one long term, should not result in any formal warnings and referred to LH’s witness statement from that first claim. She continued to contend there were no grounds to have said she had been warned about her attendance in work or that she was on notice. 4.280 The Claimant said that at the meeting on 22 July 2019 she and JC had expressed concerns about the content of the ET3 as registrants of the NMC and that Ms Mason had taken responsibility for enquiring about this but there had been no response for nearly 4 years. 4.281 The Claimant said they had told Ms Wright that they clearly recalled Ms Mason was hostile in the meeting and refused to discuss the COT3 due to confidentiality. 4.282 The Claimant noted that the complaint about the delay in referring her to OH had been upheld but that Ms Wright had not considered the impact the delay had on her return to work. She said other parts of the COT3 were not adhered to leading to numerous issues in the stage 2 grievance such as incorrect pay level, pension and the absence of an expense account. 4.283 The Claimant said again that the meeting on 22 July was hostile and unwelcoming and the Claimant felt that decisions on a reduced caseload, new manager and base were on a temporary basis because it was felt it was not sustainable long term. It was said this made the Claimant feel vulnerable especially with the risk of being returned to Kier Hardie and having to work alongside LH. 4.284 Under the section for “Subsequent Occupational Health Report advice was not acted upon [4d]” the letter said: “Lisa returned to work in July 2019, but it was only in January 2021 did she have an active expense account to claim mileage. Lisa was told that this was one of the reasons why AL took set up an action plan because Lisa was significantly out of pocket resulting in her making a mileage claim for an entire year at one stage. Dr Tidley OH advised that Lisa needed to have extra time and subsequent travelling time to a new base as a reasonable adjustment in December 2019, yet this issue was only clarified in writing by [GC] in her letter of February 2021. [JOK] emailed [JC] on 10- 8-20 with copies to Allyson Allman and Sara Mason stating the following “I am however aware that Lisa has advised that she believes I agreed to excess mileage which is certainly not the case as there was no justification for the same.” 4.285 The letter said that Ms Wright had upheld some extremely concerning issues but does not suggest any reasons for this. It was said the Claimant had tried to resolve issues herself and was understanding about the pandemic but the issues were of a serious concern well before the start of the pandemic and she had gone through correct channels to raise concerns. The letter concluded: “Lisa understands that the Grievance process is now concluded but felt it was important to raise these issues of concern and process for your attention.” 4.286 Ms Wright reflected on this letter in conjunction with the earlier email about the PILON. As there was no further right of appeal she decided it was not appropriate to respond to the correspondence. She says and we accept that she was also concerned that responding could be open-ended as the Claimant seemed to be raising new issues or points in her response. 4.287 On 20 April 2022 SB, Head of Workforce and Organisational Development emailed Ms Wright to ask whether the Claimant had submitted a fresh grievance [1150]. Ms Wright confirmed she had not received a fresh grievance but did receive a response to her grievance outcome the last week “but in this Lisa recognises that she has no further right of appeal and the matter is closed.” 4.288 On 25 April 2022 Ms Jones conducted a sickness absence meeting [1151]. The Claimant said she had a consultation with Dr Tidley who had said he did not think counselling would be useful as the Claimant would be going over things again which increases her anxiety. The Claimant was due to receive her 5th vaccination which she felt would help to reduce some of her anxiety. She had completed a course of acupuncture for pain management. Ms Jones recorded they had spoken about the change in senior management. LH was leaving and that AB had taken over as senior nurse. The Claimant was told that AB would like meet with her as there were several changes taking place in the service including the expansion of the Flying Start programme. The Claimant was to inform Ms Jones when she would like to meet with AB. It was agreed the clamant remained unfit to return to work. 4.289 On 24 May 2022 Dr Tidley provided his report [1156]. He advised the Claimant remained unfit for work due to significant stress related symptoms and problems with fibromyalgia aggravated by continuing stress. He said the Claimant had updated him about her health status and the outcome of the grievance appeal. He said she was likely to remain unfit for work until at least the next OH appointment with him in 3 months time. He said he could add nothing to the OH advice provided to date. 4.290 On 1 June 2022 Ms Jones emailed DE for advice about managing the Claimant’s long term sickness. It was noted that after the next OH report there should be a meeting to discuss and whether the Claimant intended to return to work, or whether they would consider termination of employment if OH supported this. It was noted the Claimant would exhaust sick pay in September 2022 and so they needed to be sure the Claimant understood this. It was also noted that the Claimant needed to be advised of the proposed changes to Flying Start that could potentially affect her job role in September 2022 [1157]. 4.291 On 6 June 2022 the Claimant commenced Acas early conciliation [1]. 4.292 On 27 June 2022 the Claimant’s GP signed her off work until 26 September 2022 with the same reasoning previously given [1162]. 4.293 On 29 June 2022 a long term sickness absence meeting was conducted [1163]. It records the Claimant saying that she remained in a difficult situation and her head was all over the place. It records the Claimant saying she had made contact with pensions for advice but the ESR system was not yet up to date. The Claimant said again that OH had said they did not feel that counselling would be a good option. It was agreed the Claimant remained unfit for work. 4.294 On 7 July 2022 Ms Jones contacted OH to ask if at the next review OH could advise on whether the Claimant would be able to return to work in the foreseeable future in her role and if this is not possible whether redeployment is an option and, if so, with what recommendations [1171]. Notification of retirement 4.295 On 13 July the Claimant spoke with Ms Jones and said she wished to take retirement effective 12 weeks later. Ms Jones explained the Claimant was valued and an experienced member of the team and did not want to see her go but the Claimant said she wanted to leave. Ms Jones contacted Mr Bartlett to tell him and that the Claimant wanted assurance there would be no issue with her pension. He advised her they would not normally process a termination until they had written confirmation and he also checked the Claimant’s ESR record for her continuous service for pension purposes. On 14 July Ms Jones emailed the Claimant [1174] referring to their conversation the day before and saying she was waiting on the Claimant’s formal instruction that she wished to retire in 12 weeks. She said without that she was unable to start the process. 4.296 The Claimant replied to say [1174]: “Thank you for your support yesterday in what is a very difficult decision. Ideally after battling to ger back to work I had planned to continue working until 65 years. However the situation has had such a negative impact on me both mentally and physically. I have to prioritise my health and leave my career behind. In light of this, and with a heavy heart, I would like to formally apply for my pension. As I am in the 1995 scheme a Health Visitor and 57 years old I qualify for Special Class Status. I hope that this process goes smoothly for me as I have been subject of numerous organisational errors in the previous few years. I would request that this is completed within twelve weeks from today which will be the 6th October 2022. In my 39 year career I have enjoyed working with some excellent people who have become lifelong friends. I served the same community for 39 years, in the hospital, as a District Nurse and a Health Visitor which has been a pleasure. I would like to thank you for your kind comments yesterday that I was good at my job.” 4.297 Mr Bartlett advised in a subsequent email [1179] that Ms Jones should respond to the Claimant to say that pensions would deal with entitlement and the processing and so the Claimant should seek independent advice from them about this and likely timescales. He said Ms Jones should ask the Claimant to clarify if she is stating she will be retiring as of 6 October and is she requesting that they terminate her employment on that date [1179]. SB emailed Mr Bartlett to say “Are we thinking Constructive dismissal?” [1172]. 4.298 There was also a further email exchange between them where SB said she would like there to be “no loose ends given there is now a resignation on the table. Given we gave the commitment to close the loop, could you please do that so there is no suggestion that we didn’t conclude that process. The conversation will clearly look different and happy to talk that through with you Michael if helpful if a call is needed, please do slot in.” Mr Bartlett told us in cross examination he believed those comments related to without prejudice communications with the Claimant and so he did not know if he could further answer the questions he was being asked. We made it clear to the parties that the tribunal could not just waive privilege, if indeed there were privilege issues, and that it required both parties to agree to waive privilege if it applied. There did not seem to be agreement about the waiver of privilege but neither party was expressing a proactive view about it either. It was not further raised with us, including in closing submissions. But it would be of no surprise for the parties to be having without prejudice dialogue. 4.299 On 20 July 2022 the Claimant presented her first claim form. 4.300 On 25 July 2022 the Claimant asked, in light of her applying for her pension and having a fit note until end of September 2022, whether it was necessary to have their next meeting. She said she found the meetings extremely stressful [1182]. The meeting went ahead on 27 July [1184] where the Claimant said she was devastated she was retiring and did not feel valued by the health board. JC protested as to why the meetings were happening and Mr Bartlett stated they were part of the managing attendance policy and were a supportive measure for the Claimant while an employee and to allow the health board to have reasonable contact to discuss long term sickness. It was agreed that Ms Jones would do them by telephone with the Claimant going forward. Ms Jones also attended the Claimant’s home to help her with retirement documentation. 4.301 On 19 August 2022 the Claimant tried to lodge a document called “Final grievance.” Its content said it was filed partly to protect the Claimant’s position in view of the obligations under employment tribunal proceedings and then referred to the grounds of complaint for the tribunal claim that had been presented partly to protect her position on time and partly because she had been left with no other option. The final grievance document then adopted the tribunal grounds of complaint. It said that events culminated when JC sent the letter of 13 April 2022 and after waiting a reasonable period for a reply no substantive reply was received. It was said the Claimant was left feeling abandoned and completely at a loss as to what to do. It was said that the mere issue of an extremely belated “apology” and nothing more by the Respondent did not amount to the proper resolution of a grievance, and certainly not a grievance of the seriousness, substance and time span of the Claimant’s grievances. It was said the failure to take any actual action by the Respondent left the Claimant unable to attend work. 4.302 The final grievance document said the Claimant was seeking a finding of unlawful discrimination and unfair treatment by the health board, disciplinary action against the persons involved as listed in the ET1 document which may include dismissal, the board to agree to pay compensation for career losses of salary, benefits and pension, compensation for injury to feelings, aggravated and exemplary damages, compensation for injury to health, and an uplift of up to 25% in the event the grievance was not fairly and promptly addressed [1187]. 4.303 On 6 September 2022 Ms Rodway, the Executive Assistant to HD sent an email to the Claimant saying that the email filtering service had alerted them that she may have tried to send a communication to HD but it was unable to be delivered. She asked the Claimant to re-send it to her [1188]. 4.304 [1189] is an email from the Claimant’s email account forwarding her original email to HD. Ms Wright’s evidence to us is that she checked with Ms Rodway who confirmed she did not receive that email. The Claimant’s counsel pointed out that Ms Rodway had not been called as a witness. We took that into account however we ultimately decided on the balance of probabilities we could not be satisfied that the Respondent had received that final grievance document. There are no delivery receipt confirmations as might be expected to be provided given the circumstances. 4.305 On 4 October 2022 Dr Tidley did a final consultation with the Claimant producing a report dated 25 October. He said he understood the Claimant had now resigned from her post and would be leaving employment shortly. He said in those circumstances it would not appropriate to provide advice about the Claimant’s future fitness for work and the option of redeployment [1191]. 4.306 On 5 January 2023 the Claimant presented her second employment tribunal claim said to be lodged out of an abundance of caution to address any alleged jurisdictional or time limit issues around the claims subsisting up to the last date of employment on 6 October 2022 [82]. In terms of substantive claims it repeated those pleaded in the earlier claim form and grounds of complaint and further particulars set out in a Scott Schedule. 4.307 At some point the Claimant had also referred the Respondent to the Information Commissioner. On 14 February 2023 the ICO gave the view the Respondent had not complied with their data protection obligations in doing being able to locate the original grievance document or determine how it had been managed and retained by staff members who had access to it at the time. Further it appeared that the Claimant’s personnel file was incomplete and the Claimant had to wait over 12 months to obtain a copy of it. 5 Discussion and Conclusions Constructive Unfair Dismissal Opening observations

5.1 We address first the constructive unfair dismissal complaint. Despite the reference in the pleadings and List of Issues to breaches of express and implied terms of the contract no argument was put before us about breach of any express term. Instead, the claim was pursued on the basis of breach of the implied term of trust and confidence. The List of Issues had been drafted in a way that left us without a clear list, under the constructive unfair dismissal heading, of the things said to amount to conduct (without reasonable and proper cause) said to be (individually or cumulatively) calculated or likely to destroy or seriously damage trust and confidence between the parties.

5.2 Ms Churchhouse’s written closing submissions directed us to the detriments listed under the victimisation claim. She also, however, presented her own list in the constructive unfair dismissal part of her written closing submission, which is a different list which the Respondent did not see until the exchange of written closing submissions. Ms Churchhouse also said that her written closing only concentrated on some key parts of the List of Issues but the rest of the case was not withdrawn. It was said the Claimant relied on her witness statement for other matters. That is not a particularly helpful approach, particularly bearing in mind the length of the Claimant’s witness statement. But we did the best we could to address what we understood the List of Issues to mean, and bearing in mind how the case had been put in oral evidence.

5.3 To allow us to undertake a structured decision making we therefore are following the victimisation list of detriments (but approached them as factual complaints) whilst also cross referencing this to Ms Churchhouse’s list. When considering the very broad complaint about failure to follow the All Wales Grievance Policy we reverted to the specific points made in Ms Churchhouse’s written closing submissions because otherwise, as Ms Winstone observed, the allegation was so broad it was difficult for us to assess it in a structured way and in a way that was fair to both parties.

5.4 We would observe that these complications could have been avoided if the List of Issues (which came from the pleadings) had contained its own clear independent summary of the alleged incidents/ breaches of contract relied upon. From 29 July 2019 onwards delaying in arranging occupational health support and advice

5.5 Following the return to work meeting on 22 July 2019 there was a delay in the referral to OH until Ms Jones made it on 30 September 2019 (as confirmed by OH in the course of Ms Wright’s grievance investigation). The pleaded delay is from 29 July 2019 onwards (the date the Claimant returned to work). So the delay was about two months.

5.6 As set out in our findings of fact, we found the referral that slipped through the net with those involved believing that someone else was making the referral. Ms Mason thought JOK would deal with it as it was an operational matter and not a task generally undertaken by HR. JOK thought Ms Mason had done so. Ms Allman likewise understood it was being done by someone else.

5.7 There was no reasonable and proper cause for the delay in the referral. The Claimant was returning to work in sensitive circumstances, following reinstatement as part of a negotiated COT3 and following a sustained period out of work. She was also returning to work (with her agreement) before the OH appointment took place. She was returning to work with a new complicated line management structure. These were unusual circumstances and required care to be exercised. An individual in the organisation should have been responsible for ensuring that the referral was made in a timely fashion. The most obvious individual to monitor that the referral was happening would have been Ms Mason given she had responsibility for implementing the COT3. We have not, however, found it was a deliberate omission on her part. OH referrals were done by managers not HR and we accept that Ms Mason simply anticipated that the line management team headed by JOK would be getting on with it. But given the sensitivities and unusual circumstances it should have been checked.

5.8 Viewed objectively it was conduct likely to damage trust and confidence to an extent. For the reasons set out in our findings of fact, the delay in making the OH referral did not place the Claimant under undue pressure because her phased return to work and workload were being carefully managed by her managers. However, a key component of the Claimant’s agreed return to work was that there was going to be OH advice and assessment. The OH advisor may also have had other recommendations to make beyond what line managers were already doing, and OH advice was wanted on progressing the phased return to work and longer term plans. Given the Claimant’s vulnerability and lack of general trust in the organisation, once she appreciated there had been the failing and delay in making the referral, it did also contribute to an increased sense of distrust and sense that her return to work was not being handled with due care. Viewed objectively from the Claimant’s perspective it therefore was reasonable to feel that some hurt and concern about the delay in making the OH referral.

5.9 Ms Churchhouse in her written closing submissions refers to this allegation as: “The failure to refer the Claimant to Occupational Health prior to her return to work in breach of the COT3 and/or promptly prior to 30 September 2019”. The latter point we have addressed. In respect of the former, the COT3 agreement recorded the Claimant’s acknowledgment she would have to be seen by OH before a return to work. The referral before the return to work did not happen, but we have found it was with the Claimant’s agreement at the time. Both parties were being pragmatic in the circumstances and did not see the deviation at the time as a cause for concern by either side. If it had been a cause for concern for either party, (including the Claimant), the issue would have been raised at that time and before the COT3 was subsequently signed. This was not conduct without reasonable and proper cause likely to undermine trust and confidence. From 29 July 2019 onwards, not making and/or delaying in making reasonable adjustments, including adjustments that had been recommended by the Occupational Health Adviser and/or failing to make those on a long term basis.

5.10 This is a very broadly worded allegation. From our understanding of the way in which the case was presented this largely relates to the issue of the Claimant’s caseload and workload.

5.11 As set out in our findings of fact, we have found JOK agreed the Claimant should have a reduced caseload, the number to be agreed with the Claimant’s senior nurse but no more than 150 children, and she said something about 150 children roughly representing the caseload of a Health Visitor working 3 days a week with generic. We have not found that JOK said anything specifically about the number of children in a Flying Start role or that the Claimant would have a Flying Start caseload capped at 66. We have found that figure of 66 was the Claimant’s own extrapolation and presumption. We have found that JOK was setting an outline plan for the Claimant’s return to the workplace. The Claimant needed to speak to Ms Allman and there would be a OH report in due course. In fact, in reality Ms Jones needed to be particularly involved in managing the Claimant’s workload as she was the team leader whereas Ms Allman was line managing the Claimant from a different region.

5.12 For the reasons given in our findings of fact, we have not found that the Claimant’s workload at any time in during the period in question was not properly managed, or that it was excessive for her working hours or health/disability or that she was left with the workload responsibilities of a full time Health Visitor or more. 5.12 The first OH report of 20 December 2019 confirmed the Claimant was fit for her role and would be able to return to full time working gradually building it up over 3 months. Dr Tidley advised, by way of adjustments, the Claimant would require additional time to undertake her casework and office based work. We accept that measure was already in place and continued to be in place. Dr Tidley did not say (then or later) that the Claimant needed a caseload capped at 3 fifths of a full time equivalent or a figure of 66. He also did not say that the Claimant was struggling with her workload requirements. That is the kind of point that a OH report would comment upon. There was no failure to make adjustments arising out of this report, whether short term or long term. The Claimant formed the belief that she had been promised a capped caseload of 66 and that she had an entitlement to this but that was not a promise made or a OH adjustment specifically identified and recommended by Dr Tidley.

5.13 Dr Tidley also advised the Claimant should have time away from work to attend medical appointments. We have found that was already in place and remained in place. Dr Tidley supported allowances being made for the change of base including allowances for additional time and also travel in order to minimise stress. Again, we are satisfied that was already in place and continued to be, with the Claimant being allowed to arrive in work later and leave earlier and which the Claimant was trusted by her line managers to control. We do not find there was failure to make his recommended adjustments or a delay in doing so. Dr Tidley did not say the Claimant should be entitled to excess mileage and we also do not see how it would be his place to make that kind of recommendation about a financial entitlement.

5.14 By the time of the OH review of 23 April 2020 the Claimant was shielding as being clinically extremely vulnerable. Dr Tidley had no new recommendations for when restrictions lifted other than those previously recommended and which were in place. There were no failures to make adjustments arising out of that report. Again, the OH report of 8 October 2020 (following the appointment on 23 September 2020) noted the Claimant’s work pattern was suitable subject to any change in national guidance relating to Covid. He noted the Claimant’s office based work was carefully risk assessed and had no recommendations to make about additional measures. Nothing was said about outstanding adjustments that were, for example, causing the Claimant to feel overloaded.

5.15 The next OH report was 3 February 2021. The Claimant was working from home. Dr Tidley’s only recommendation in that regard was that the Claimant continue to alter her posture regularly and take regular breaks. Dr Tidley said he remained supportive of his OH advice from December 2019. He made no comment that anything was outstanding in that regard and we have found it terms were being met. Indeed, at this point in time the Claimant’s workload was much reduced by virtue of home working with no face to face contact due to Covid restrictions.

5.16 Dr Tidley did comment about the Claimant’s ongoing grievance and said he would fully support these matters being resolved as soon as practical. We deal with the grievance process issues separately below.

5.17 The Claimant then went off on long term sickness in April 2021 never to return. It is not the case that she was, during her absence period thereafter, saying that it was caseload or workload that was a bar to her return. On 12 May 2021 Dr Tidley advised the Claimant was unfit for work and that the stress related symptoms were work related and continued to be associated with unresolved issues referred to in his previous reports (i.e. the grievance). His only new advice was about giving the Claimant agendas in advance of meetings, additional time for meetings and breaks during meetings. This case was not presented to us, for example in terms of the cross examination of the Respondent’s witnesses, that there were failure to make adjustments in these regards. Ms Wright, for example, did provide an agenda. On 12 August 2021 Dr Tidley said the Claimant remained unfit for work but he otherwise had nothing to add to his previous advice. In his reports thereafter he again had nothing further to add.

5.18 The Claimant had been due in March 2020 to have a meeting with JOK about long term plans (such as long term line management arrangements, and whether she would be officially granted a caseload figure of three fifths of a full time equivalent). Reasonably and properly that did not take place because of the impact of the arrival of Covid and the demands it placed on the NHS, but also the Claimant was then shielding and the whole way of working changed for some time. The Claimant then raised in her grievance that she wanted some certainty by being given a letter of confirmation. That letter was provided in March 2021 and confirmed the Claimant’s place of work, her line management and her caseload and other adjustments. Again, there we did not find there was conduct without reasonable and proper cause likely to undermine trust and confidence. The Claimant felt the caseload figure of 88 was too high as it was not 66. But for reasons set out above, we consider that the Respondent was managing the Claimant’s workload in other ways.

5.19 As stated we return to the handling of the grievance process separately below. We also address the specific complaints about failure to make reasonable adjustments in terms of the Equality Act complaints in our section on that below. But otherwise looking at this complaint from a factual perspective and as presented to us in evidence and closing (which largely focused on workload and caseload) we do not find there was a failure or a delay in making adjustments, including those recommended by OH. There was therefore no conduct, without reasonable and proper cause, that was likely to undermine trust and confidence. From 29 July 2019 onwards, Ms Mason and the respective Heads of Nursing, failing to brief staff and/or organise the Claimant’s records in a manner which properly recorded her prior treatment and allowed her role to be fully reinstated and the COT3 terms to be fully implemented

5.20 It is difficult to be entirely certain as to what this complaint is getting at. Ms Churchhouse in her written closing submissions terms it: “Failing to hold the Claimant’s records in a complete manner so that managers were fully appraised” and: “Failing to hold the Claimant’s records in a manner compliant with the GDPR.” The focus of that therefore seems to be the Claimant’s personnel file.

5.21 The COT3 represented a clean break in full and final settlement of what had happened to date, with no admission of liability, and with confidentiality restrictions. We do not find there was a failure by Ms Mason to properly brief staff or organise records about the Claimant’s reinstatement in terms of administrative matters such as continuity of service/payroll/pensions. It was reasonable for her to delegate some of the action to others in her team and CM properly informed those involved as to what the essential terms of the COT3 were in that regard. We cannot see how she would reasonably have anticipated the problems that did then follow, particularly with NWSSP. It would have been helpful to give her the letter from JOK, but we accept Ms Allman was briefed about the key points about the Claimant’s reinstatement under the COT3 terms. Ms Allman and Ms Jones were able to line manage the Claimant in terms of her workload demands.

5.22 In relation to the Claimant’s local personnel file, on the evidence before us we find the likely sequence of events was that the part of the Claimant’s file that related to her Health Visitor role relevant to the first tribunal claim was secured with the legal file. After enquiries by Ms Allman the other, older parts made their way to her, via LH as the Claimant’s former senior nurse. The parts had become separated and no one knew where the Health Visitor part was. It was in fact secure but no one appreciated this until eventually Ms Davies was able to locate it when looking into the separate complaint about information provided in the first tribunal claim. There was, however, a failing in the chain of custody as there was no record of who held what and where. The records were therefore not properly maintained from that perspective and they were the Claimant’s personal data. We accept it was likely in breach of GDPR (as found later by the ICO).

5.23 We do not, however, find that it was deliberately done by Ms Mason or anyone else with the intention to harm the Claimant or obstruct her reinstatement. The likelihood is, as we have found, that it was simply forgotten where the Health Visitor part of the Claimant’s file was and the other part was then returned via LH because she was recorded as the Claimant’s line manager. We do not accept that because there is an email from 21 December 2018 [1436] from AmL in HR saying she had left the personnel file in hard copy and soft copy via a scan with Ms Mason meant that Ms Mason should then have known and remembered where the constituent elements were, the original employment tribunal proceedings would have progressed since that time.

5.24 It has also never been said how that failing prevented the Claimant’s role being reinstated or the COT3 being implemented. As we understand it, it is said the failure limited what was given to Dr Tidley in the OH referral. But we have never been directly told what it is that the personnel file contained that would have been in the OH referral that Dr Tidley needed. We also do not have the OH referral document to know what was or was not said and have made our findings of fact based on Ms Jones’ evidence as she completed the referral. The Claimant criticises the Respondent for that, but we have no evidence before us that it was ever requested by way of, for example, specific disclosure. Both parties have been represented throughout and would have been well aware that would be the appropriate way to deal with any dispute about missing documents, if agreement could not be reached between the parties.

5.25 The Claimant says (and Dr Tidley noted in his first report) that she had to go over the history of what had happened to her and it caused her distress. This may be what is meant by the allegation of not recording the Claimant’s prior treatment. It was, however, a difficult situation. There was no admission of liability or agreed facts that could be given to Dr Tidley, and moreover what was wanted was forward looking guidance on, following the Claimant’s reinstatement what adjustments she needed. We consider in that context there was reasonable and proper cause to leave it to the Claimant to say to Dr Tidley whatever she wished to say, or not say, about that background.

5.26 Ms Churchhouse submitted that it also meant that Dr Tidley did not know what disadvantage the Claimant was suffering in the workplace. It is said that the disability form found at [595] was not filled out at the time and provided or the document completed by Ms Jones found at [268]. It is said that Dr Tidley would therefore not have seen the reference to reduced caseload or provided with a summary of the role. We accept the Respondent’s evidence that these are not documents that are routinely sent to OH. But the simple answer is also that Dr Tidley could ask the Claimant about her return to work and her duties. He had been given a brief summary of the role by Ms Jones. Dr Tidley did then asked the Claimant questions and that is, in the Tribunal’s industrial experience, the usual course of things in an OH referral. It meant the Claimant had the full, unsullied opportunity to say to Dr Tidley whatever she wanted about what had happened and how she was feeling in terms of her return to work and her needs. As far as we understand it, based on the evidence of Ms Jones in this regard, Dr Tidley had also known the Claimant previously and would have had access to her previous OH file.

5.27 In terms of Ms Allman and Ms Jones, we accept the lack of the personnel file may have been an administrative inconvenience to them. It would have been a port of call, for example, for factual personal data to go into the OH referral. But it did not ultimately stop them making the referral to OH or line managing the Claimant or dealing with things such as annual leave.

5.28 We therefore do not find there was a failure to brief staff or organise the Claimant’s records in a manner that allowed her role to be fully reinstated and the COT3 terms to be fully implemented. We do, however, accept that the failure of a chain of custody in respect of the Claimant’s personnel file made the Claimant suspicious. This was particularly in light of her ongoing, subjective belief that the Respondent had, in the earlier tribunal claim, provided inaccurate information. The Claimant therefore had a particular, personal drive to want to know where the file was and what was in it and where it had been. But that was the Claimant’s suspicions and belief. It was not what we would find to be the objective position. We have not found that, for example, the Claimant’s personnel file went missing as part of a wider ploy to try to hide inaccurate information being given to the tribunal in the earlier proceedings. Indeed, the case was not argued before us on that basis, and it is difficult to see how it could have been given the COT3 terms.

5.29 The file was, however, also the Claimant’s sensitive personal data which she had the right to access. From that perspective it was objectively reasonable for her to be concerned that for most of the period in question the Respondent did not know where all the parts of the file were. If we interpret the wording of the pleaded allegation at its absolute most generous interpretation to the Claimant we would find that the period in which the Respondent could not account for the file’s complete whereabouts (i.e. until Ms Davies found it), and the lack a chain of custody record to track where the file was at all times, was conduct without reasonable and proper cause which did and was likely to undermine trust and confidence. But this is not a finding that something underhand was going on. Between 29 July 2019 and 10 February 2021, delaying in implementing the Claimant’s new expense arrangements/her new base and then withdrawing those arrangements that had been previously agreed

5.30 If this allegation is asserting that the Respondent did not implement or withdrew a commitment that the Claimant would be paid for her excess mileage, we have not found as a matter of fact that was ever agreed by Ms Mason or JOK at the meeting on 22 July 2019, or indeed at the grievance hearing in November 2020. We find it was a presumption made by the Claimant that she should be entitled to it. The Claimant in her own mind extrapolated that Dr Tidley’s report said that she should receive that payment. In fact, as already stated, Dr Tidley’s report does not say that, and as a financial entitlement it also would not be a matter for a OH doctor to assess.

5.31 In terms of delay in implementing the Claimant’s new expense arrangements, it is helpful here to summarise what we understand happened. The Claimant emailed the NWSSP expenses team on 15 October 2019 requesting an expense account. The form was sent to the Claimant and Ms Allman on 28 October. On 11 November the Claimant asked Ms Allman to complete the manager section which Ms Allman did that day asking the Claimant to give the form to Ms Jones or forward it to e-expenses. There was then delay as the Claimant wanted her base recorded as Treharris as opposed to Kier Hardie for expenses purposes (not that she wanted to return to Kier Hardie). At a meeting in December 2020 the Claimant then agreed she would have her account set up as Treharris pending further investigation. In the Claimant’s subsequent grievance she confirmed that the forms had been completed by herself and Ms Allman and had been submitted, which must have been in December 2020.

5.32 By 2 January 2020 the Claimant had contacted JC who emailed Ms Mason on 6 January 2020 saying the Claimant had not had an account opened for her despite asking her line manager to do so for several months. Ms Mason responded that day to say it was unacceptable and she would chase it. On 28 January JC chased Ms Mason about the expenses. Ms Mason did respond to JC on other points raised but there is no evidence of Ms Mason getting back to JC about the expenses issue at that time. We find that this was an oversight rather than deliberate action (or inaction) on Ms Mason’s part. Ms Mason was looking into other matters raised so she was not generally stalling. Further, when the expenses issue came back to her attention again later in the year Ms Mason took prompt steps and believed the problem had been rooted out and would be resolved. But viewed objectively the failure to pick it up the expenses issue in January 2020 should not have happened.

5.33 On 6 March 2020 the Claimant then submitted her grievance. Part of the grievance related to her being unable to claim expense. The Claimant sought her expense account to be set up immediately “in line with advice from Occupational Health”.

5.34 In June 2020 the Claimant and her managers tried again to submit her expenses paperwork. They were told that the Claimant already had an active expenses account and the expenses team would send the Claimant a password link to gain access to the account. The Claimant asked for it to be sent to her private email address as she was at home shielding. She chased this on 6 July, and following further correspondence, the expenses team said they could not send the link to a non-work email address but the Claimant could set a password over the telephone. On 22 July the Claimant reported to JC that she had been given passwords on the phone on two occasions but they were not being accepted. She said she had also been told the email address on the new expenses account was for her old email address and only Workforce could change the email address. CT from the expenses team’s email of 18 August confirms she did speak to the Claimant on 22 July and helped the Claimant with logging in. CT says she told the Claimant to add her vehicle to be able to start claiming.

5.35 On 7 August 2020 JC contacted Ms Mason and JOK. Ms Mason thought the obstacle lay in getting the expenses approved and so contacted Ms Allman asking her to authorise them if they were business mileage. Ms Mason spoke with expenses who told her (incorrectly) there had been no request to set up an account for the Claimant and provided a form to fill in. Ms Allman explained it had been done several times before, so Ms Mason went back to expenses. Ms Mason chased it again on 17 August. On 18 August they confirmed the Claimant did have a live account but what was outstanding was the Claimant inserting details of her car. A phone number was provided for the Claimant to use if she still had difficulties. Ms Mason forwarded this all on to JC. She then stepped back out again because the Claimant’s grievance was being progressed and JC was clear the Claimant wanted to take her grievance forward. That was reasonable on Ms Mason’s part. If the Claimant or JC wanted Ms Mason to carry on trying to fix it because it was still not working, in tandem to progressing the grievance, then they should have communicated that to Ms Mason. They should also have told Ms Mason that the inserting of the car details was, for whatever reason, not working.

5.36 What then happened with the setting up of the car on the expense account in the hands of the Claimant and whomever she was liaising with in the period August to November we simply do not know as we do not have the evidence about it. But the setting up of the account and the backdating of expenses became part of the grievance action plan and by 24 November Ms Davies had learned that the outstanding step still seemed to be the vehicle details being inserted and then being approved by Ms Allman. On 16 December Ms Davies assisted the Claimant with registering a new car on the expense account and asked Ms Allman to authorise it.

5.37 There was then a new obstacle as Ms Allman raised the point that the Claimant’s expenses should come out of the Merthyr cost code. We do not find that Ms Allman was deliberately creating an unnecessary obstacle or seeking to return the Claimant to LH’s line management as opposed to it being a genuine concern about costs coming out of the correct budget. On 12 January GC then confirmed the approver would be Ms Jones and Mr Bartlett notified the expenses team.

5.38 By 25 January the Claimant was able to access the system and was attempting to put in a claim, but contacted Ms Davies about difficulties justifying the red flags on the system. Ms Jones also raised queries with Mr Bartlett about what date to put on the form as to change of approver (which also linked to the backdating of claims) and about excess mileage. Delay was then caused by AL’s absence on ill health grounds until in March 2021 it was escalated to PD and then to Mr Coslett who authorised the claiming of backdated expenses, albeit to be scrutinised by Ms Jones. On 15 March Ms Davies assisted the Claimant further with putting justifications on the form to get it through the submission process and by 18 March 2021 the Claimant had submitted an expenses claim. We stop there in the narrative because the allegation made only runs up until 10 February 2021 which is the date the Claimant says her normal mileage was authorised.

5.39 We do find there was delay in implementing the Claimant’s expense account between 29 July 2019 and 10 February 2021 that was without reasonable and proper cause. We do not consider that there was an unreasonable failure to set up an account in advance of the Claimant’s return. It was not part of the agreed arrangements, it would be standard to set up an expense account when an employee joins and it would not have been envisaged at that point in time the problems that would then prevail. Quite what the cause of those problems was it is difficult to be definitive about on the evidence before us. But the most obvious cause of the initial problems may well be that when the new account was set up the emails may have been going to an email address the Claimant no longer had access to. There were then difficulties in adding the Claimant’s vehicle that we do not know the detail behind. The approver then needed to be set up as Ms Jones. We do not find that these difficulties were done deliberately to target the Claimant as she seems to believe, given she spoke at the time of HR persecuting her. They were just system failings or human error.

5.40 We do, however, consider that there was a failure to grasp and resolve the problems when they came to light. We accept that it was more difficult for the Respondent to resolve problems as the action needed to be taken by NWSSP, who is external to the Respondent. However, there will be a service level agreement in place with NWSSP and as Ms Davies said in her evidence, Heads of Workforce and above had more clout with NWSSP and had direct access to senior managers there. Someone with sufficient seniority in the Respondent needed to pick up the issue and drive it proactively forward until they were absolutely certain that the account was fully set up and an expenses claim put in and approved on the system. The Claimant was entitled to business mileage and was incurring it on her initial return to work in September 2019 through to March 2020. She was being left out of pocket. Ms Mason in particular in January 2020 should have picked up the issue and driven it through to resolution. It took 13 months after that to sort out. We accept that individuals like Ms Jones, Ms Allman and later on Ms Davies and Mr Bartlett were doggedly trying to work through issues and resolve them. But it needed picking up and dealing with at a higher level. As an expenses issue it was leaving an employee out of pocket and it took too long to resolve. There was no reasonable and proper cause for this. This kind of financial reimbursement is important to employees. An employee should be able to do their contractual duties without being left out of pocket. The delay in setting up the account before February 2021 was conduct likely to undermine trust and confidence.

5.41 In terms of the allegation that expense arrangements were withdrawn; the Claimant’s expense account, once it was set up, was not then later withdrawn.

5.42 There was not a delay in implementing the Claimant’s new base in the practical, physical sense. She was based at Treharris right from the start of her return to work. The plan was to review the long term plans in a meeting with JOK in 2020 but we do not consider this had as its particular focus where the Claimant would work, but more whether there would be an official adjustment of the Claimant’s caseload down to 66 that the Claimant believed she was entitled to, and what the long term line management arrangements would be. The meeting was delayed because of Covid. We have already dealt with this above where we found there was reasonable and proper cause for that delay. Moreover, the work the Claimant (and her colleagues) was doing, and where she was doing it, was heavily impacted by Covid during a sustained period of time in which no one really knew what was going to happen next or when it would all end. People were having to cover what they could.

5.43 The Claimant raised in her grievance that she wanted confirmation of her current base (as well as role, responsibilities and management structures in line with the reasonable adjustments recommended by OH). The progress of the grievance was delayed due to Covid and the pause placed on grievances. The confirmation sought was then picked up as an action point in the subsequent action plan, where it was agreed a letter would be prepared with confirmation of current base (and the other matters). The action plan was not approved by the Claimant until 14 December 2020 and the confirmation letter also needed the Claimant to return the disability assessment form, which she did on 17 December.

5.44 The first draft of the confirmation letter was promptly prepared by 22 December. It then made its way to GC and, in turn, to Ms Allman who responded on 7 January 2021. Bearing in mind the Christmas period, we do not consider than an unreasonable period of time. The updated version of the letter was then approved by GC reasonably promptly on 12 January.

5.45 Regrettably the confirmation letter then got caught up in the delay caused by AL being on sick leave. It was reasonable to want AL to approve the letter as this was an action plan outcome in the grievance. We also consider it was reasonable of the Respondent to wait a period of time to see whether AL would return; it was not known at the outset of her sickness absence how long she would be off for. It was reasonable to then pass the responsibility over to Mr Coslett in February 2021. He then approved the letter on 26 February and it was officially signed by Ms Clack on 28 February. Again, we consider these timescales reasonable.

5.46 But we do consider that there was then unreasonable delay in not forwarding the confirmation letter on to the Claimant until 15 March 2021; so in effect a 2 week period. We are told this is because a question relating to excess mileage was outstanding. However, we did not consider that this justified a delay in sending the confirmation letter. The Claimant’s work base was being confirmed as Treharris, that was one of the purposes of the letter. The question of the Claimant’s entitlement to excess mileage could have been considered separately. Indeed, the letter did not speak of

5.47 In short, there was no delay in implementing the new base. There was a delay in providing a formal confirmation of the Claimant’s base in the confirmation letter. For much of that period there was, viewed objectively, reasonable and proper cause for the delay. There was not, however, such reasonable and proper cause between 1 March and 15 March. That was conduct which would have undermined trust and confidence to a small extent period in mind the short period of unreasonable delay compared to the overall period. It was also a confirmation the Claimant was seeking to reassure her as to long term arrangements and it was reasonable of the Claimant to want that confirmation. But it does need to be viewed in context. There had been talk of a need to firm up long term arrangements such as line management structure and the Claimant’s belief her caseload should be capped at 3 days’ worth of work/66. But the Claimant had never been told she was at risk of being returned to Keir Hardie or the line management of LH. It was a fear she had herself constructed about things such as being told that excess mileage had not been approved by JOK or Ms Mason, or that Ms Allman as line manager was only intended to be temporary. But the Claimant could have a change of base to Treharris without also getting paid excess mileage. JOK (or indeed Ms Mason) were not saying the Claimant was being returned to Keir Hardie; simply that they had not approved excess mileage on the Claimant’s return to work. In terms of the allegation that arrangements for a new base were agreed and then withdrawn; we therefore do not find that it was. Again, the Claimant was never told she was being moved away from Treharris.

5.48 It is possible that this allegation is also intended to cover excess mileage. We do not find that there was ever any agreement to pay excess mileage that was agreed and then withdrawn. In terms of the Claimant’s complaint about her request for excess mileage, we consider this below in relation to the handling of the Claimant’s grievance, given the overlap. From 6 March 2020 to 11 May 2021, Chris Coslett shutting down the grievance at stage 2 and refusing to resolve the matters raised, including by sending a Final Outcomes letter.

5.49 We do not find there was a refusal to resolve the matters raised in the Claimant’s grievance. An action plan was developed with agreed steps and which was based on the remedies that the Claimant herself had set out in her grievance document. In any grievance there is a need to have a structure: a defined list of the things being complained about and desired remedies sought. The Respondent had reasonable and proper cause to focus on those things as being the matters raised and to be resolved. As at the April 2021 meetings and the 11 May 2021 outcome letter, to Mr Coslett’s understanding payroll were due to rectify the ESR link showing no break in service for the May payrun which would feed through and resolve the pension data. The expense account had been set up. The historic absence data had been retrieved and ratified. The letter of confirmation had been provided. By the time of the second April meeting, the missing part of the personnel file had been found. The position on the PILON had been checked.

5.50 We also consider that the Respondent generally had reasonable cause to consider that the points the Claimant was raising were new points. The narrative in the Claimant’s grievance did talk about there being a delay in getting OH advice and she did say: “The delay in having advice on reasonable adjustments has left me and my line managers without the necessary information needed to support a successful return to case load”. But the remedy sought and the action plan focused on, with agreement, confirmation of the Claimant’s current base, role, responsibilities and management structures in light of the OH advice. It was reasonable for that to have therefore been the focus. The complaint about the personnel file had been focused on finding it. The complaint about sickness data had been focused on retrieving it and ratifying it; not about whether incorrect data had been provided in the previous tribunal proceedings. The issue about the Claimant’s base now showing as Prince Charles Hospital was a new development. We return to the excess mileage point separately below. But there was, as we have already said, generally reasonable cause to believe that what the Claimant was raising were new points, albeit on linked topics.

5.51 They were also generally speaking new points that would require different lines of enquiry such as speaking to witnesses. In our judgement it was reasonable for the Respondent to have ultimately reached a view that these new points could not continue under the existing process. It was a process ongoing since November 2020 and everyone including the Claimant considered it needed to be brought to a conclusion. What had happened to date had followed an agreed structure with an agreed focus based on the Claimant’s remedy points. It is also difficult to see how a defined structure could be maintained, rather than there being a fluid process in which the Claimant would raise further concerns and question. We accept that PD’s advice was probably that things needed to be drawn to a conclusion, but it is a view that Mr Coslett, Ms Davies and Mr Bartlett would have shared and there was reasonable cause behind it.

5.52 We do not find that in doing so there was an intention on Mr Coslett’s part to shut down a grievance in the sense of barring the Claimant from pursing matters further. AL’s original intention was that if the action plan was unable to resolve some of the agreed actions, then there would be a stage 2 meeting with a manager present. As we have said we doubt there was much forensic analysis of the status of the action plan itself and whether it was being dropped back to the informal stage 1. But by April and May 2021 Ms Davies. Mr Bartlett’s and PD’s understanding and belief was that the action plan was informal and therefore the grievance was at stage 1. There was a lack of clarity, but it was not deliberate and largely caused by AL’s unanticipated absence. Mr Coslett was not an HR expert and was dependent on the HR advice he was being given. Ultimately the key point for us is that Mr Bartlett (or indeed those involved from HR) were not intending to say the Claimant could not pursue matters further. He was saying new matters needed to be written down and could then taken to a stage 2 grievance meeting, with whatever investigative steps needed then happening. It might be a slightly different way of framing what AL had in mind but the outcome was ultimately the same: the Claimant could pursue things through a formal Stage 2 grievance meeting and investigation process.

5.53 The letter of 12 May 2021 could perhaps have been better worded in that regard. But the Claimant would have understood where she was and the options she had. She had trade union advice throughout and she herself said to Ms Allman on 26 April that Mr Coslett had sent it through to the next stage. The Claimant complains that the Respondent’s approach sent her back to the beginning and over a year after she had originally presented her grievance. But as we have said, what she was seeking to pursue were reasonably considered new matters; the Respondent therefore had reasonable cause to believe the correct place for them was as part of a new Stage 2 grievance. The Claimant was not being deprived of an avenue to pursue things or being sent round in circles (albeit that is what she felt was happening).

5.54 The Claimant wanted to appeal on to Stage 3. Ultimately she was permitted to do so and Ms Wright’s view on it was that the Claimant had been at Stage 2 and therefore did have the right to appeal on. But we do not consider that means for us, on our own objective assessment, that there was not reasonable and proper cause for Mr Coslett and those advising him to have thought these were new matters to go to a new process and that the original issues had (on the understanding held at the time) been resolved. The most we consider that can be said is that on existing issues the Claimant should have been offered the right of appeal, albeit we can understand Mr Coslett’s point that he believed the resolution sought had been achieved and also importantly that he thought there was nothing stopping the Claimant, if she disagreed with him, raising them also at stage 2. He was not, therefore, shutting any potential points of agreement down. He also considered that the Claimant would be left with more avenues to pursue her complaints down as she would get a Stage 2 process and then a right of appeal to Stage 3. (Whereas the Claimant in fact proceeded to Stage 3 with no further right of appeal thereafter, which is ultimately one of the points she says left her discontented).

5.55 We therefore do not find that generally Mr Coslett shut down the grievance or refused to resolve matters raised. He thought the original matters had been resolved and he thought the Claimant was at liberty to take any matters she wished to a Stage 2 grievance where the Claimant would have the opportunity to ask questions, present evidence and the like. Ultimately Mr Coslett could not just make findings on the new points the Claimant was raising. They required investigation and a formal Stage 2 hearing. Whether that is seen as the Claimant starting a new Stage 2, or carrying on with the existing process to a formal Stage 2, the same steps would have been needed, such as the Claimant recording in written form exactly what she was now grieving about, what she was seeking and the appropriate investigations and meetings then happening. Mr Coslett was not seeking to deny the Claimant the benefit of such a process.

5.56 We have, however, flagged up above that we gave particular consideration to the Claimant’s claim for excess mileage. The Claimant’s original grievance focused on not having a working expenses account rather than excess mileage. The references to excess mileage were opaque (if there at all). The Claimant said, for example, she had had to change her base and travel further to support her disabilities and the requirement for a warm office, which she said was agreed at the initial meeting in July 2019. There was also the reference in her remedy section to “Expenses account set up immediately in line with advice from Occupational Health.” The agreed action plan point was that Ms Davies was to liaise with expenses to see how the account could be set up immediately with expenses backdated as appropriate. It was not about

5.57 We can therefore see how it can be said it was not a point raised in the original grievance. But on this particular issue of excess mileage, and in its particular circumstances, we do consider that as at April/May 2021 Mr Coslett should have done more to resolve it. We say this because it was known through the progression of the grievance from November 2020 onwards that the Claimant believed she should be entitled to excess mileage; Mr Coslett confirmed in his evidence that the Claimant said she was entitled to excess mileage in the grievance meeting of 10 November 2020, albeit it was not something that was agreed as being an entitlement in that meeting, nor did it became part of the action plan. Why the Claimant and JC did not raise it at the time the action plan terms were agreed we do not know (nor why JC did not take up Ms Mason’s earlier offer in the summer of 2020 to have a Teams meeting about it). But Mr Barlett raised it with GC in January 2021 having had a discussion with AL. It was that exchange that led to JOK stating that it had never been agreed in July 2019. In February 2021 excess mileage was featuring on the running commentary in the action plan [752-753], again as acknowledged by Mr Coslett in his witness statement. The Claimant then raised it again in the 12 April 2021 grievance meeting.

5.58 In the 16 April 2021 meeting Mr Coslett told the Claimant that she need to first make an application for excess mileage under the “usual process” via her line management chain. We understand his rationale for doing so. The Claimant had been saying that excess mileage had been agreed in the July 2019 or November 2020 meetings but JOK and Ms Mason and Mr Coslett himself were saying that was not the case. Mr Coslett considered the Claimant needed to make a formal application which was then an operational decision for the Claimant’s line management to make Mr Coslett did not consider it was appropriate, being from a different directorate, to step in and make a decision at grievance stage when his understanding was no decision had yet been made by the Claimant’s operational managers. In essence, he was being asked in effect to decide something being grieved in a grievance (if indeed it was ever actually in the grievance) where there had been no managerial decision to start with. He thought there should first be a decision that could be appealed on through a grievance process.

5.59 There is in our judgment reasonable and proper cause for that view point. However, we do not consider that the reasonable approach in the particular circumstances was simply to send the Claimant away to make an application under the “usual process.” Excess mileage was not something that Ms Jones and Ms Allman had been able to authorise; Ms Jones had been asking about it. The Claimant was in an unusual line management structure and did not have an easy “normal route” by which to make the application. We do not consider it unreasonable for Mr Coslett to want there to be a managerial decision made by the Claimant’s line management chain; but in the particular circumstances it would have been reasonable to have exercised some control over the process going forward. For example, to refer the request formally to JOK and/or GC with a definitive date by which there would be a formal response to the application and, if necessary, the Claimant could then appeal it on. From an objective perspective, we do consider that the approach on this issue (which had been latterly treated with some fluidity as to whether it was part of the grievance or not) was too “hands off”. Mr Coslett’s actions were not taken with a view to closing down the Claimant’s grievance or to refuse to resolve the issue. Mr Coslett was giving the Claimant what he believed to be the pathway forward with the potential for a grievance thereafter. But we do consider that the handling of this point about excess mileage as at 16 April 2021 and in the outcome letter was without reasonable and proper cause. It was likely to, and did, undermine trust and confidence as the Claimant was left feeling in terms of the excess mileage point that she was going round in circles having discussed it before with line managers. The excess mileage application was later agreed and paid by September 2021. On 16 April 2021 Chris Coslett stating that it was not for the Board to sort out her line management

5.60 We have not found as a matter of fact that Mr Coslett said this and the allegation itself as it is set out is simply not made out. Mr Coslett did tell the Claimant to claim excess mileage through the usual process, which we have dealt with above but that was not telling her that it was not the Board’s job to sort out reasonable adjustments and she should sort them out herself with her line management. By the time of the 16 April meeting the Claimant raised that her base was now showing as Prince Charles Hospital. That was a new development and Mr Coslett told the Claimant she should be able to sort that out with her line manager. That was not telling the Claimant that it was not for the Board to sort out reasonable adjustments. He was simply and reasonably telling the Claimant that this was an administrative glitch she should be able to speak to her line manager about and resolve. The Claimant and her line managers had access to the systems to allow them to do this. Mr Coslett did not. Correcting the administrative error was also not a reasonable adjustment. Ms Jones’ evidence was, which we accept, that there was a problem at that time with some peoples’ bases defaulting to Prince Charles Hospital; it was not unique to the Claimant. On 16 April 2021, Ms Jones advising the Claimant that she had been advised by HR that the excess mileage allowance was “not applicable” to her

5.61 Ms Jones did not tell the Claimant she had been advised by HR that the excess mileage allowance was “not applicable” to her. In the email at [805] Ms Jones said to the Claimant on 15 April that to her knowledge excess mileage had not been granted. Ms Jones was simply exercising the line management responsibility she had been given to check the Claimant’s expenses claim and believed the Claimant may have put through an excess mileage claim which Ms Jones’ understanding was had not, at that point, been agreed. Ms Jones was proceeding on the basis of what she had been told and had reasonable and proper cause to do so. The following day the Claimant herself was told no previous agreement had been given for excess mileage and that she needed to make a formal application.

5.62 The Claimant’s reaction to being told no agreement had to date been given for excess mileage appears to have been a presumption that meant she was being sent back to Keir Hardie where she would come into contact with LH. But that was a presumption on her part; not something that was said or intended by the Respondent. The Claimant had the letter confirming her base as Treharris. From 6 August 2021, not progressing the Claimant’s appeal against the grievance findings

5.63 We do not find there was a failure to progress the Claimant’s grievance appeal. Ms Davies took the appeal straight to Ms Wright for advice on how to proceed. Ms Wright looked into it and asked Ms Davies for some more documents. She then spoke with JC to double check the Claimant did want to proceed under Stage 3 and to discuss whether she could get on and sort out some transactional issues and then have a meeting with the Claimant and JC. These were reasonable steps and timescales; indeed JC confirmed that approach was welcome at the time. That had all happened by 3 September 2021, which included a period of delay because of JC being on leave.

5.64 Ms Wright then reasonably promptly arranged a meeting with the Head of Payroll, albeit the meeting was not ultimately needed because the ESR record was corrected and Ms Wright also sorted out the error with the Claimant’s base. This was confirmed by JC in her email of 22 September 2021. On 29 September 2021 Ms Wright asked to meet with JC and offered some dates in early October 2021. We consider this a reasonable action and reasonable timescales. The meeting did not happen in October because of JC’s lack of response. JC then responded on 2 November and on 17 November Ms Wright responded with meetings dates and a proposed agenda. We do not consider that an unreasonable delay; Ms Wright was under immense pressure at the time due to Covid which JC herself acknowledged.

5.65 The meeting went ahead on 23 November. By the next day Ms Wright had commenced her investigations and she was aiming to produce an outcome letter by 31 January 2022. That turned out not to be feasible because of workload pressures over December and January and because Ms Wright still had Ms Allman to interview. We accept the pressures that Ms Wright was under. Ms Wright therefore indicated that she hoped to get the letter out by 10 February 2022. She provided a further update on 13 February and sent the outcome letter out on 18 February. We acknowledge that we have to view matters objectively, but the Respondent did not have unlimited resources particularly at Ms Wright’s level, and Ms Wright was working extreme hours at the expense of her own family life because of the Covid crisis. She was doing the best she could in the circumstances. That was not the Claimant’s fault either who was on long term sick leave and needing there to be some progress. But ultimately viewed objectively in the circumstances at the time the timescales had reasonable and proper cause. The Claimant’s appeal was progressed. From 18 February 2022, not implementing the findings where it was found the grievance was upheld

5.66 We do not find this allegation is made out. Where the grievance was upheld the findings were implemented. Ms Wright acknowledged the shortcomings she had found and provided a detailed written apology. We accept that she fed back to the relevant parties her findings for them to consider as part of their reflective learning. There was reasonable and proper cause for that approach bearing in mind that generally the complaints were about things that had happened in the past that Ms Wright could not simply undo. Ms Wright emailed Ms Jones for Ms Jones to discuss any adjustments required with the Claimant.

5.67 It is evident from the Claimant’s later attempt at a further grievance and her oral evidence that the Claimant, it would appear, ultimately wanted people disciplined up to and including dismissal. This was not a finding that Ms Wright made. She considered these were learning issues not disciplinary issues. There was reasonable and proper cause for that viewpoint. Things that went wrong had not been deliberate or foreseen and those involved were trying to sort things out. Karen Wright stating on or about 1st July 2022 that she was consciously ignoring any further progress with the Claimant’s grievance

5.68 There is no evidence that Ms Wright said this. We do not find that she did. From 6 March 2020 failing to use the All Wales Grievance Policy and take the required steps to resolve the Claimant’s grievances, a failure which continued to 6 October 2022

5.69 The grievance procedure can be found at [426-444]. In short, Stage 1 is an informal grievance discussion to take place within 7 days of the matter being raised and with a written record made. The employee can elect to omit this stage if they want to move to a formal process. Stage 2 is a formal grievance hearing. The manager receiving the grievance should write to the employee acknowledging receipt and inviting them to attend a grievance hearing which should normally be held within 14 calendar days of receipt of the written grievance unless the parties have agreed an alternative timescale. The written grievance decision will normally be provided within 7 calendar days of the grievance hearing, unless extended by mutual agreement. Stage 3 is the grievance appeal to be heard by an appropriate senior manager not previously involved in the grievance and nominated by the Director of Workforce &OD. There is an anticipation of it taking place within a further 21 calendar days of the letter of appeal unless the parties agree an alternative timescale.

5.70 The policy provides that there should be no unreasonable delays in holding grievance meetings/ hearings and the timescales should be adhered to unless the parties mutually agree an alternative timescale.

5.71 The policy says that the written appeal decision will be final and should be sent to the employee within 7 calendar days of the appeal hearing unless extended by mutual agreement to allow additional time for further reflection and consideration of the facts. It also says: “The decision will be copied to the appropriate manager, to ensure that the agreed actions are implemented, monitored and reviewed by them, as appropriate, to ensure the matter(s) raised are dealt with effectively and to the satisfaction of the employee.” An accurate record of all grievance events is to be maintained on ESR to ensure necessary follow up action is taken and to enable the Respondent to detect trends or patterns of behaviour.

5.72 The first point raised by Ms Churchhouse under this broad heading of complaint was Ms Mason’s delay from 6 to 22 March 2020 in failing to send out a grievance invitation. Ms Mason says in fact it was in the week commencing 9 March 2020 that JOK contacted her about the grievance. We accept that was likely to be the case as the grievance had to reach Ms Allman and then make its way to JOK and then to Ms Mason. Ms Mason then wanted to speak to JC. As said already above, we accept that was a common and reasonable step and Ms Mason did so on 18 March 2020. This was a time in which the NHS was preparing for the pandemic. By 13 March 2020 non urgent medical appointments were being cancelled. HR was being restructured with Ms Mason moving and teams being taken to local sites. We do not find Ms Mason’s wish to speak first to JC or the period from around what was then approximately 9 to 18 March was unreasonable in the circumstances.

5.73 Ms Churchhouse raises Ms Mason’s delay from 14 to 28 August 2020 in failing to ask someone to look into dates for the grievance meeting. Ms Mason had not been doing nothing in that period. She was trying to resolve the expenses issue over the period through to 20 August, and spoke again to JC on 21 August to see if there was a way forward. Ms Mason had also spoken with AL who had agreed to be on the panel and had thought about who else could be, identifying Mr Coslett. This was a 14 day period, we did not find it to be unreasonable delay. Who was going to be on the panel needed to be identified before the dates could be obtained.

5.74 Next it is said there was delay between 28 August 2020 to 16 November 2020 before a meeting occurred. It is said the delay was due to Ms Mason having lost the grievance or in the alternative Mr Bartlett’s failure to schedule a grievance hearing between 21 October 2020 and 16 November 2020. The grievance should never have been lost. However, 16 November 2020 was the first date that everyone was available to attend despite Mr Bartlett making reasonable and proper endeavours to arrange it. Mr Bartlett had started gathering dates on 1 September and had particularly difficulties getting availability dates for JC whose office offered dates for October but then said she was not in fact available and was then taking some leave later in October. There was not unreasonable delay in the period.

5.75 It is then said that there was a failure to resolve the grievance by sending a stage 2 decision letter by 18 December 2020 and delaying until 19 May 2021 to do so. We do not consider that a Stage 2 decision letter (or any decision letter) was promised by 18 December 2020 because the action plan was being taken forward at that time. The Claimant had only agreed its terms on 14 December 2020 (saying that it addressed the concerns raised and was achievable) and at that point also raised two additional things. It was never going to all be finished 4 days later. There were other things the Claimant herself needed to do such as filling in the disability risk assessment form which was only returned on 17 December 2020, the day before 18 December.

5.76 What, however, should have happened, as Ms Wright later observed, was that a letter should have been sent summarising what had happened to date and what was going to happen next in the process. But we do not consider it was ever promised or agreed there was going to be a Stage 2 decision letter at that point in time. What AL had in mind was, if needed, to hold a Stage 2 meeting with a manager present if there remained unresolved issues. We do not find it was agreed that the action plan and a Stage 2 process would run in tandem. Albeit, as stated, a summary letter would have made things clearer for everyone. More regular updates to the Claimant and JC about what was happening with the action plan would also have helped.

5.77 The action plan was then subject to delay with AL having to support mass vaccination planning and taking leave over the Christmas period. Ms Davies and Mr Bartlett picked up what they could. They were diligently working through the tasks. AL did email JC on 15 December explaining this and that she would pick thing back up after the Christmas break which JC did not take issue with at the time. We therefore do not see how the Respondent could reasonably have known that the Claimant was disgruntled with time scales. On 12 January there was a review meeting with Ms Davies. The Claimant did then express her disappointment with there not being a meeting arranged earlier and Ms Davies therefore reasonably took steps to arrange one with AL and Mr Coslett. It was then postponed due to AL’s ill health. We consider there was reasonable and proper cause for this; AL was leading the process it was sensible to wait a while to see if she would return. At that point in time there was in fact no issue taken from the Claimant’s side of things with JC on 29 January 2021 wishing AL well and saying they would wait for the next meeting.

5.78 In February there was the OH report from Dr Tidley and JC chased several times about expenses asking on 8 February if, for example, Mr Coslett could step in to resolve it. Mr Bartlett did then go to Mr Coslett on 25 February and a decision was made to ask PD to support the process. A Head of Workforce was needed to, for example, push NWSSP to respond, but it also meant PD needed to be brought up to date. By 15 March 2021 the Claimant was fed up, saying no progress had been made on the majority of items. It was not correct to say there had been no progress and there was not generally a lack of diligence on the part of those involved who were continuing to try to progress things. But viewed objectively we do consider there was a lack of communication with the Claimant, particularly as timescales were becoming longer. Regular updates would have helped. The Claimant, for example, could have been asked for her views on whether she thought AL should be replaced given it was not known how long AL would be off for, but with the downside they would be losing AL who had been leading the process and had been at the original meeting.

5.79 Viewed objectively we do consider that once 2 weeks had passed with no sign of AL returning, the Claimant and JC should have been consulted and a new management plan put in place. Things were drifting in part because there was no one senior manager managing the timelines and action points and giving updates to the Claimant and getting her buy in. Changes and longer delays should have had her consent. We therefore do consider that delay in progressing the grievance in the spring of 2021 was conduct without reasonable and proper cause, particularly in light of the lack of communication with the Claimant. We do consider it was conduct that would undermine trust and confidence as the Claimant was being dispossessed from knowing about and being involved in the progress of her own grievance and she was facing delay.

5.80 We do not consider the calling of two meetings on 12 April and then 16 April was without reasonable and proper cause. The Claimant was raising new matters and a decision had to be made how to deal with that. We have already dealt with that point above and that we do not consider that in fact the Claimant’s grievances were being shut down; she was largely being given a reasonable opportunity to obtain redress. There was, however, unreasonable delay in sending the outcome letter between 16 April and 12 May 2021.

5.81 The next matter identified by Ms Churchouse is the failure of Ms Mason or others to log the 6 March 2020 grievance. Ms Mason said in evidence she was not sure if she ever had the grievance, or at least the appendices to it. There is an evidential vacuum as to where the hard copy of the grievance with its appendices went which means we are unable to make positive findings of fact. But we consider it likely that Ms Mason at least had a copy of the grievance to want to speak to JC about it. It was with her in HR to take forward administratively. So we do find that Ms Mason failed to log the grievance (or delegate it to someone else to do so). We do not, however, find there was any improper motive behind this other than human error. Ms Mason was busy getting ready to move. Further there was no benefit to be gained in losing the grievance paperwork, she was trying to speak to JC about it, the grievance was not going to just go away. The failure to log the grievance when initially presented was conduct without reasonable and proper cause and it was conduct that undermined trust and confidence. It contributed to the grievance paperwork being lost and the Claimant had to recreate it in due course, particularly the appendices. Furthermore, it was her personal data and she had every right to believe that the Respondent should be able to say where it was and to have an audit trail for it.

5.82 Ms Churchhouse then raises Mr Coslett’s decision to issue an informal grievance letter in response to the Claimant’s stage 2 appeal. We have already addressed that matter above. She also raises the allegation that Mr Coslett said it was not for the Board to sort out reasonable adjustments and that the Claimant should sort them out herself with her line manager. Again we have already dealt with that above. Mr Coslett did not say that. He talked about the Prince Charles Hospital base issue where his approach had reasonable and proper cause. The handling of the excess mileage issue we have also addressed above where we have found more proactive action should have been taken.

5.83 Ms Churchhouse then says there was a failure to comply with the policy in that Ms Wright was not impartial, having provided advice at stage 2. We struggle to see how the Claimant would have actually know about it at the material time; you have to know about something for it to harm trust and confidence. But we do not consider that Ms Wright was not impartial or it was inappropriate for her to have taken the matter on at Stage 3. She had had one small exchange with Ms Davies in AL’s absence.

5.84 It is then said there was a failure to properly investigate the Claimant’s stage 3 grievance, make findings or uphold the aspects of the grievance, thus preventing any reasonable opportunity to provide redress. Under this topic the first sub complaint is the decision by Ms Wright not to uphold the Claimant’s grievance that the meeting on 16 November 2020 was not a formal Stage 2 Grievance Hearing. It is said the Claimant had clearly not been provided with a Stage 2 outcome letter in line with the All Wales Policy and Mr Coslett took the decision to downgrade in the grievance from Stage 2 to Stage 1 is demonstrated by the changes in the letter which was sent.

5.85 Ms Wright found that the meeting on 16 November 2020 was arranged and conducted as a Stage 2 grievance hearing not least because the correspondence sent in advance setting it up said that it was. She then found that the action plan was an agreed outcome of that meeting. We have made a similar finding ourselves; there was reasonable and proper cause for Ms Wright’s conclusions. There was no stage 2 outcome letter because the action plan was ongoing. Mr Coslett’s outcome letter of May 2021 happened after the event. In that regard as we understand it Ms Wright was actually in agreement with the Claimant: that the process had in truth stayed at, or should have stayed at, stage 2 throughout.

5.86 It is then said there was a failure to uphold the Claimant’s grievance that reasonable adjustments had not been provided. It is said that in light of the documents at [744] which Ms Wright does not appear to have addressed this was not a reasonable finding to make. This is closely related to the next complaint made that Ms Wright made a decision not to make a finding that the subsequent OH report advice was not acted upon. It is said Ms Wright abrogated her duty to make a finding at all in that respect. It is also linked to a further complaint made that Ms Wright did not uphold a complaint that delay in occupational health prevented a return to work. It is said Ms Wright did not investigate the relationship between the Claimant being given a full caseload and the effect it had on the Claimant being able to return to work successfully.

5.87 There is no evidence that Ms Wright had the data at [744] or that anyone asked her to look at it. In her decision letter she referred to Dr Tidley’s first two OH reports and said as she was not involved in the management of the Claimant’s ongoing period of sickness absence it was not appropriate for her to comment on the matter as part of the grievance process. She therefore asked the Claimant’s line manager currently managing the Claimant’s sickness absence to revisit the reports with the Claimant when the Claimant was assessed as fit to return to work. Ms Wright said in her evidence that her understanding was that there were no outstanding adjustments following the letter from the Claimant’s line manager and the completion of transactional issues. She said recommendations in historical reports had varied due to shielding and the Claimant’s sickness. She therefore considered it was appropriate for line management to review things going forward.

5.88 The Claimant had, at least in her amended notes of her meeting with Ms Wright, said that she had returned to work with a full time caseload and that Dr Tidley’s advice had not been acted upon i.e. no reduction to work caseload. It may have been a historic complaint given the Claimant was at that time absent on sick leave, but it was nonetheless something the Claimant had raised as being aggrieved about. Ms Wright said she thought following the letter (we presume 15 March 2021 letter) there were no outstanding adjustments. We can understand how she would have had that impression; the letter was produced as an agreed action point. However, the Claimant was potentially saying otherwise. Ms Wright could and should reasonably have investigated this further by asking the Claimant further about her previous workload and caseload and also asking Ms Allman and Ms Jones. We do consider and find that Ms Wright missed this historic allegation and should have investigated it further. We do not find that Ms Wright was seeking to bury the point or to protect people. We consider that she generally conducted the process with integrity, challenged people on issues and reached findings in the Claimant’s favour. We consider it is more likely, and find, it came down to error on her part particularly bearing in mind the demands she was juggling at the time and also probably that on the face of the documents she did not see its particular relevance.

5.89 Viewed objectively there was no reasonable and proper cause for this error. It was likely to cause harm to trust and confidence but only to a limited extent. We say this because on our findings the Claimant was never overloaded in work, and adjustments were made to her workload which was carefully managed over time. What the Claimant was fixed on was the notion she should always have had an official caseload capped at three fifths of a full time equivalent. But even then, we do not consider that at the time Ms Wright’s decision on this point was of a major concern to the Claimant at the time. It did not obviously feature in JC’s subsequent letter of 13 April 2022. There is a comment that the Claimant felt decisions on a reduced caseload were on temporary basis but it does not say the Claimant was, for example, later overloaded. Instead, the focus was on the Claimant feeling vulnerable of a return to Keir Hardie/LH. The paragraph that actually focuses on reasonable adjustments and the OH advice at [1145] reads as being travel time to a new base, not caseload/workload. One sentence refers to Dr Tidley saying the Claimant needed extra time and subsequent travel time to a new base, but the focus of that section is about base and travel, not the Claimant being overloaded with work.

5.90 In relation to the point about the delay in OH referral preventing a return to work or a successful return to work, the Claimant in her amended version of the minutes complained that the meeting of 22 July was hostile in nature and shut down attempts to discuss reasonable adjustments in any detail. In her witness statement she alleges there was resistance to adjustments suggest by JC. Our understanding is that refers to JC raising other types of work the Claimant may have been able to do. We find that Ms Wright did deal with this point. She found that there was no evidence the Claimant had objected to returning to work on 29 July, that the Claimant’s health status had been discussed with her, and that there was an agreed return to work plan with adjustments in place. There was reasonable and proper cause for Ms Wright’s conclusions in that regard.

5.91 Next it is said that despite the meeting notes saying an action point was to understand why JOK /Ms Mason did not immediately make the referral to OH that Ms Mason was never interviewed by Ms Wright. It is observed that there is no email sent by Ms Wright to Ms Mason when there is for other interviewees. We have found that Ms Wright did speak to Ms Mason as confirmed in both their evidence and Ms Wright’s outcome letter at [1101]. We have noted there are no other documentary records before us of Ms Wright initiating the call or the content of what was said but nonetheless we accept Ms Mason was spoken to. As Ms Wright said in evidence they work in the same department and so her setting up of the Teams meeting with Ms Mason was done differently. The interview with Ms Mason should have been documented, but we accept that it happened as a meeting, and also acknowledge that Ms Wright was working under a lot of pressure at the time.

5.92 Ms Churchhouse submits that the Claimant’s complaint about her personnel file was mischaracterised as about whether she should have been advised to submit a subject access request. It is said the initial grievance at [1045-1046] states: “LP stated she was informed her personnel file was lost and Trudy Jones had advised her during a sickness meeting, she did not have access to the file”

5.93 The amended minutes at [1048] record the complaint being about the Claimant not being given a copy of her personal information and that the Claimant had said she had been asking about it since March 2020. The outcome sought was that the Claimant wished to have access to specific documents on her personnel file and that Ms Wright was to contact CN to go through the subject access procedure. The Claimant did not amend this to say she was seeking anything else. Ms Wright was just addressing what she thought she was being asked to do; she had reasonable and proper cause to do so.

5.94 It is then said that in breach of the All-Wales Grievance Policy [433] there was no feedback loop between the Claimant and Ms Wright as to what feedback had been provided to the individual members of staff involved in the upheld part of the grievance such that the grievance was dealt with “to the satisfaction of the employee.” The grievance policy at [433] says that the appeal decision should confirm what action will be taken to resolve the matter and the decision will be copied to the appropriate manager to ensure the agreed actions are implemented, monitored and reviewed by them as appropriate, to ensure the matters raised are dealt with effectively and to the satisfaction of the employee. The reference to the employee’s satisfaction is, in our judgement, a reference to the employee knowing that it is being copied to the line manager to take action and that action is being taken. It is not about the employee receiving the detail of the implementation of the step. The Claimant was not entitled to the feedback it is suggested she was entitled to; what she had was sufficient under the policy and appropriate. In her longer term analysis, the Claimant appears to have taken this expression to mean that she should have been ultimately able to dictate the action taken as otherwise the grievance findings upheld would not be resolved to her satisfaction. It seems that by the end the Claimant wanted people disciplined and potentially dismissed. If so this was an unreasonable expectation of what the policy means and was not an entitlement she had.

5.95 Finally, under this point relating to the grievance policy it is said that Ms Wright failed to implement the findings of the Stage 3 Grievance by formally addressing staff involved. We have found as a matter of fact that Ms Wright did provide feedback to those involved. In doing so she dealt with it in a reasonable and appropriate way. If the reference to “formally addressing staff” is a reference to some kind of disciplinary process or reprimand we consider that Ms Wright had reasonable and proper cause for dealing with it in the manner that she did by giving learning and development feedback. She had reasonable and proper cause for believing that those involved may have made mistakes, but that people had been trying to resolve things. From 13 April 2022 to 6 October 2022, effectively abandoning the Claimant and treating her as if she was no longer employed; including not replying to her continuing not to make reasonable adjustments

5.96 We do not find this allegation is made out. The Claimant was not effectively abandoned and treated as if she was no longer employed.

5.97 Ms Wright had initially responded to the Claimant’s email of 5 April about the PILON which notably had not been part of the agreed Stage 3 process (and indeed the Claimant had been told the Respondent’s position on it, and would seem to have also been caught by the COT3 terms). It was then followed by JC’s detailed response to the Stage 3 outcome on 13 April. Ms Wright then decided not to respond because she had given her conclusions on the issues raised with her, and it appeared the Claimant was raising new issues. She was concerned that responding would not lead to any further resolution and that there was no further right of appeal on from Stage 3. In our judgement, Ms Wright had reasonable cause not to respond. JC had quite clearly said that the Claimant appreciated it was the end of the process and also said the Claimant understood the grievance process had concluded. That was always the risk the Claimant had adopted in deciding to take it to Stage 3. Ms Wright had reasonable cause to believe that the Claimant quite clearly knew under the policy that things were at an end and that if she were to respond there would likely be a response to that in turn and that the process would not end. It was also reasonable for Ms Wright to not respond further on the PILON point bearing in mind it had then been followed by the 13 April letter and her sense there was a real risk of the points being raised simply escalating. We would further add that we do not consider that Ms Wright’s response to the email of the 5 April about the PILON was actually ever an issue at the time. It did not feature in her “final grievance” [see 1185] or her pleaded case which concentrates on the 13 April letter. It appears to have been developed in the course of the litigation. We would also observe that the pleaded case is the lack of substantive response, not a courtesy response.

5.98 The complaint about being abandoned in the Respondent not taking steps to try and facilitate a return to work and in not continuing to make reasonable adjustments is also not made out. It has never been said what it was that would have allowed the Claimant to return to work at that time. Further Ms Jones did not abandon the Claimant. She remained in regular contact with her (indeed to a degree the Claimant found difficult). She made efforts to return the Claimant to work prior to the Claimant’s resignation which included the suggestion of a move to Calon Las with more support available. The Claimant was later told about the departure of LH which would have opened up further opportunities for the Claimant and that AB wanted to meet with her about changes taking place in the service. Failure to provide reasonable adjustments, engaging in discrimination arising from disability, engaging in victimisation

5.99 For completeness, we confirm that for the reasons set out below we have not found that there was a failure to make reasonable adjustments, or discrimination arising from disability or victimisation. There are therefore no such further findings that are relevant to the constructive unfair dismissal claim. Did the Respondent behave in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the Claimant and the Respondent and did it have reasonable and proper cause for doing so? Was any breach of the implied term of mutual trust and confidence sufficiently important to justify the Claimant resigning or else the last in a series of incidents justifying her leaving? If so, did the breach cause the Claimant to resign? Did the Claimant waive the alleged breach of contract and accordingly affirm the contract?

5.100 In our analysis above, on the allegations as put before us, we made the following findings of conduct without reasonable and proper cause that was likely to harm trust and confidence:

• The delay in referring the Claimant to OH on her return to work in July 2019;

• Not knowing where the totality of the Claimant’s local personnel file was or having an audit trail for it;

• Not resolving the difficulties with setting up the Claimant’s expense account. In particular the failure in early 2020 for someone sufficiently senior to take possession of it and drive it to a resolution, and in general taking too long to resolve the issue;

• Not logging the Claimant’s grievance in March 2020 (which was then lost);

• The delay in progressing the grievance in February to April 2021, especially due to the lack of communication with the Claimant;

• Delay in sending the confirmation letter from 1 March to 15 March 2021;

• Mr Coslett not taking sufficient steps to get the excess mileage claim decided;

• The delay in sending the outcome letter from April to May 2021;

• Ms Wright not investigating the issue raised as to the alleged historic failure to make reasonable adjustments about caseload which became evident when the 18 February 2022 stage 3 grievance outcome was sent.

5.101 We have referred above to the concept of harm to or the undermining of trust and confidence. The conduct must of course, assessed objectively destroy or seriously damage trust and confidence, mere damage is not enough. But we have adopted that language because of the need to take a step back and consider the cumulative position and whether cumulatively that threshold is reached. The last act we have identified is Ms Wright’s stage 3 outcome in February 2022 but only in the sense that she did not investigate one point relating to the historic complaint about alleged failures to make adjustments regarding caseload. We do not consider that was by itself sufficiently serious to amount to a repudiatory breach of contract/sufficiently serious to seriously damage or destroy mutual trust and confidence. However, we do find it was part of a course of conduct comprising several acts and omissions (as identified) which cumulatively amounted to a fundamental breach.

5.102 We considered the situation regarding the Claimant’s expenses was particularly serious as it left the Claimant out of pocket for a significant sum of money for a long period of time and an employee should not have to subsidise their own employment travelling expenses in that way. It was then added to by the other matters identified as likely to undermine trust and confidence including loss of personal documents and delay. The last act was the failure to address the historic complaint about alleged failures to adjust caseload. That was not a particularly significant failure given in fact the reality was that the Claimant’s workload was well managed, she was not overloaded and it was the Claimant perception she should have an official caseload limited to three fifths of a full time equivalent. It was, however, a point the Claimant was entitled to raise as a grievance, she did raise it, particularly in her amendments to the November meeting notes, and had a reasonable expectation it would be dealt with. Viewed objectively, the failure to do so was therefore more than trivial but as we have said really not particularly significant because the Claimant must have known the true position about he workload. To be clear we did not consider that the lack of response to the Claimant’s communications of April 2022 were a relevant contributing act or omission as Ms Wright acted with reasonable and proper cause in that regard.

5.103 The next question is whether the Claimant resigned in response or partly in response to that breach. The case law is clear that this is not about the breach being an effective cause of the resignation in the sense of ranking reasons for a resignation. It is a question of whether the repudiatory breach played a part / was it a reason for the resignation. Given this threshold we do find that it was. The delay in referring to OH, the loss of documents, the previous long term difficulties in setting up a working expenses account, getting excess mileage addressed, the previous delays in the grievance process, and Ms Wright not addressing the historic complaint about adjustments to caseload were factors the Claimant would have had in mind when ultimately deciding to resign (albeit there were other factors also at play).

5.104 We therefore turn to the question of affirmation. A fundamental breach by an employer has to be “accepted” by the employee. In W.E. Cox Toner (International) Ltd v Crook

[1981] IRLR 443

it was said: “If one party (the guilty party) commits a repudiatory breach of the contract, the other party (the innocent party) can chose one of two courses: he can affirm the contract and insist on its further performance, or he can accept the repudiation, in which case the contract is at an end… But he is not bound to elect within a reasonable or any other time. Mere delay by itself (unaccompanied by an express or implied affirmation of the contract) does not constitute affirmation of the contract; but if it is prolonged it may be evidence of an implied affirmation… Affirmation of the contract can be implied. Thus, if the innocent party calls on the guilty party for further performance of the contract, he will normally be taken to have affirmed the contract since his conduct is only consistent with the continued existence of the contractual obligation. Moreover, if the innocent party himself does acts which are only consistent with the continued existence of the contractual obligation, such acts will normally show affirmation of the contract. However, if the innocent party further performs the contract to a limited extent but at the same time makes it clear he is only continuing so as to allow the guilty party to remedy the breach, such further performance does not prejudice his right subsequently to accept the repudiation…”

5.105 In Hadji v St Luke’s Plymouth UKEAT 0857/2012 the law of affirmation was summarised as follows:

• The employee must make up his mind whether or not to resign soon after the conduct of which he complains. If he does not do so he may be regarded as having elected to affirm the contract or as having lost his right to treat himself as dismissed. Western Excavating v Sharp

[1978] QB 761

… as modified by WE Cox Toner (International Ltd v Crook

[1981] IRLR 443

… and Cantor Fitzgerald International v Bird

[2002] EWHC 2736 (QB)

29 July 2002.

• Mere delay of itself, unaccompanied by express or implied affirmation of the contract, is not enough to constitute affirmation; but it is open to the Employment Tribunal to infer implied affirmation from prolonged delay – see Cox Toner para 13 p446.

• If the employee calls on the employer to perform its obligations under the contract or otherwise indicates an intention to continue the contract, the Employment Tribunal may conclude that there has been affirmation: Fereday v S Staffs NHS Primary Care Trust (UKEAT/0513/ZT judgment 12 July 2011) paras 45/46.

• There is no fixed time limit in which the employee must make up his mind; the issue of affirmation is one which, subject to these principles, the Employment Tribunal must decide on the facts; affirmation cases are fact sensitive; Fereday, para 44.

5.106 In Chindove v William Morrisons Supermarket plc

UKEAT/0201/13

it was said: “We wish to emphasise that the matter is not one of time in isolation. The principle is whether the employee has demonstrated that he has made the choice. He will do so by conduct; generally by continuing to work in the job from which he need not, if he accepted the employer’s repudiation as discharging him from his obligations, have had to do. 26. He may affirm a continuation of the contract in other ways: by what he says, by what he does, by communications which show that he intends the contract to continue. But the issue is essentially one of conduct and not of time. The reference to time is because if, in the usual case, the employee is at work, then by continuing to work for a time longer than the time within which he might reasonably be expected to exercise his right, he is demonstrating by his conduct that he does not wish to do so. But there is no automatic time; all depends upon the context. Part of that context is the employee’s position. As Jacob LJ observed in the case of Buckland v Bournemouth University Higher Education Corporation

[2010] EWCA Civ 121

, deciding to resign is for many, if not most, employees a serious matter. It will require them to give up a job which may provide them with their income, their families with support, and be a source of status to him in his community. His mortgage, his regular expenses, may depend upon it and his economic opportunities for work elsewhere may be slim. There may, on the other hand, be employees who are far less constrained, people who can quite easily obtain employment elsewhere, to whom those considerations do not apply with the same force. It would be entirely unsurprising if the first took much longer to decide on such a dramatic life change as leaving employment which had been occupied for some eight or nine or ten years than it would be in the latter case, particularly if the employment were of much shorter duration. In other words, it all depends upon the context and not upon any strict time test. 27. An important part of the context is whether the employee was actually at work, so that it could be concluded that he was honouring his contract and continuing to do so in a way which was inconsistent with his deciding to go. Where an employee is sick and not working, that observation has nothing like the same force. We are told, and it is consistent with our papers, that the Claimant here was off sick. Six weeks for a Warehouse Operative, who had worked for eight or nine years in a steady job for a large company, is a very short time in which to infer from his conduct that he had decided not to exercise his right to go. All the more so, since there seems, on the short findings of fact of this Tribunal, that there was no reason other than the employer’s conduct towards him for his choosing to go. We simply cannot say whether this Tribunal had in mind these necessary factors… The reference to time looks as though the Tribunal simply thought that the passage of time was sufficient in itself…”

5.107 In Asghar & Co Solicitors v Habib

UKEAT/0332/16/DM

the employment appeal tribunal reviewed these authorities and those relating to absence on sick leave receiving sick pay. It was said: “Where an employee delays resigning and is away from the workplace on sick leave, in some cases an ET might find that their conduct in claiming sick pay whilst sending in the requisite sick certificates is simply neutral (see El-Hoshi v Pizza Express Restaurants Ltd

UKEAT/0857/03

), in others that it amounts to an affirmation of the contract of employment (see Fereday v South Staffordshire NHS Primary Care Trust

UKEAT/0513/10

). The issue will always be one for the ET and will need to be determined on the particular facts and context of the case (see Hadji v St Luke’s Plymouth

UKEAT/0095/12

, HHJ Burke QC presiding). As explained by HHJ Richardson in Mari v Reuters Ltd

UKEAT/0539/13

: “49. … The significance to be afforded to the acceptance of sick pay will depend on the circumstances, which may vary infinitely. At one extreme an employee may be so seriously ill that it would be unjust and unrealistic to hold that acceptance of sick pay amounted to or contributed to affirmation of the contract. At the other extreme an employee may continue to claim and accept sick pay when better or virtually better and when seeking to exercise other contractual rights. What can safely be said is that an innocent employee faced with a repudiatory breach is not to be taken to have affirmed the contract merely by continuing to draw sick pay for a limited period while protesting about the position: this follows from Cox Toner, which I have already quoted, for a sick employee can hardly be in any worse position than an employee who continues to work for a limited period.””

5.108 In Bournemouth University Higher Education Corporation v Buckland

2010 ICR 908

the Court of Appeal held that a repudiatory breach cannot be unilaterally cured by the party in default. Lord Justice Sedley also said: “A wronged party, particularly if it fails to make its position entirely clear at the outset, cannot ordinarily expect to continue with the contract for very long without losing the option of termination, at least where the other party has offered to make suitable amends.”

5.109 In Wedgewood v Hortimax Ltd (

EAT/997/01/ILB

) 25 March 2003, it was said: “Although in Western Excavating (E.C,C) Ltd -v- Sharp

[1978] ICR 221

Lord Denning laid down the principle that an employee: "must make up his mind soon after the conduct of which he complains; for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged" It is clear from subsequent decisions that the passing of time alone may not be sufficient to prevent an employee from accepting a fundamental breach of contract and claiming that he has been constructively dismissed. It is, for example, well established that time must not begin to run until the employee knows of the breach; and once he knows of the breach, as Mr Wedgewood did on 17 December, the reasons for the passing of time put forward by way of explanation by the employee may be such that it would be wrong for a Tribunal to draw the inference that the employee has elected to affirm the contract and not to treat the breach as repudiation of the contract. An example might be a case in which the employee is seriously ill during the period of delay; another might be a case in which the employee, rather than reacting immediately to the breach by accepting the employer's repudiation, gives the employer the opportunity to withdraw from the offending course of action, or to remedy the breach."

5.110 Ms Churchhouse refers to the case of Bashir v Brillo Manufacturing Co

[1979] IRLR 295

where it is said the employment appeal tribunal held an employee’s delay of 10 weeks before resigning following a disciplinary demotion was not too long when he had been off sick during that period. But it is important to not read too much across from previous cases because as was pointed out in Asghar the facts and context of a particular case are key. As explored in Mari v Reuters, the Respondent had argued the case on the basis that the receipt of sick pay was affirmation of a contract that had been unilaterally varied to the demoted role. A particular point on the facts was that the receipt of sick pay could not amount to such affirmation where its rate was the same whichever role the Claimant was in. The employment appeal tribunal said other factors were needed to demonstrate affirmation and in special circumstances of a 10 week period where the employer was pressing the Claimant to take the new role realising he was refusing it, the Claimant was entitled to accept the repudiation when he was, after the 10 weeks, ready to return to work. It is always possible to find cases that may point another way. For example, in Fereday a 6 week period, when in receipt of sick pay was with other factors was taken to be implied affirmation.

5.111 In the Claimant’s case Ms Churchhouse emphasises the need to take into account the Claimant’s special circumstances in respect of her health generally and impact of her disabilities on her, the fact she was on sick leave from April 2021 onwards, the long length of the Claimant’s service and the uncertainty about her pension entitlement. It is also said that the Claimant cannot be said to have affirmed the contract as she raised grievances and reported the Respondent to the ICO.

5.112 Factual findings and the context are therefore key; as is the need for a reasoned analysis. On 18 February 2022, when the Claimant had the stage 3 grievance outcome from Ms Wright, she knew the Respondent’s position on the grieved matters. Those matters overlap considerably with where we have found the Respondent to be in breach of contract. The complaint about the delay in referring the Claimant to OH had been upheld and an apology tendered. The same applies to the complaint about the handling of the original grievance that was not logged, was subsequently lost, with the Respondent unable to say where the original grievance had gone. The complaint about the personnel file was upheld in that there was a finding about the Claimant not being assisted with making a subject access request. The limitation on the findings about the personnel file in Mrs Wright’s grievance appeal outcome was because of the limited way in which it had been put before Ms Wright by the Claimant. Delays in the grievance process had been accepted and an apology tendered, amongst various other things that Ms Wright upheld and apologised for.

5.113 For many of the issues covered in the grievance appeal there were no other practical steps to be taken because the complaints were about things that had already happened or because the practical problem had by then been sorted; for example the setting up of the Claimant’s expense account or the acceptance of excess mileage. We say this not because we are saying these were not important complaints; to the contrary we have found there was a repudiatory breach. We also are not noting this context for the purposes of suggesting at all that the Respondent had or was able to remedy the breach; it is clear under the case law that they cannot. We note it because it is relevant context.

5.114 Much of the breaching conduct had therefore been recognised and, in effect, an offer of amends made. There was, in addition, Ms Wright’s failure to investigate the historic complaint about alleged failure to make adjustments in respect of the Claimant’s caseload. But we have also found that was not particularly significant because the Claimant’s workload had in fact always been adjusted by the Claimant’s line managers and she had been well looked after by them. On our findings of fact the Claimant knew this.

5.115 The Claimant also knew that the grievance process was at an end, and she had no further right of appeal; this is expressly and clearly acknowledged in JC’s subsequent correspondence.

5.116 The Claimant therefore had the choice, after a period of appropriate reflection, to accept the repudiatory breach (about which there had been some offer of amends) and resign or to affirm the contract.

5.117 The Claimant resigned just under 5 months later. We do find, looking at all the circumstances, that by that time the Claimant had impliedly affirmed the contract. There were steps the Claimant had taken, once knowing what the Respondent’s position was on the grieved matters/their breaching conduct to call on the Respondent to perform its obligations under the contract. The Claimant asked Ms Wright to assist with approving her taking holiday in March 2022 so that she could remain on pay rather than half pay sick pay. She also put in hand the carrying forward of accrued but untaken annual leave into the next financial year. When the paid holiday came to an end she held the Respondent to their contractual obligation to pay half pay sick pay. On 5 April the Claimant sought out Ms Wright’s assistance with what the Claimant considered to be her ongoing entitlement to have tax issues around the original PILON reimbursed. The Claimant was attending on OH. The Claimant’s preference would have been not to attend, and she found them distressing, but she did continue to attend sickness absence meetings. She was, in the context of being unwell and on sick leave, performing her parts of the contract and calling on the Respondent to perform theirs. We accept the Claimant was unwell and was not able to discuss a return to work, but she did not rule out completely, for example, having a conversation when she was able with AB about changes in line management and changes in Flying Start. She was engaging in the contractual relationship and the contract of employment.

5.118 The Claimant did not send her written response to Ms Wright’s grievance outcome until some two months after receiving the stage 3 grievance outcome. The Claimant knew she had no further right of appeal under the grievance policy and the letter sent on her behalf by JC expressly acknowledged this twice over. We therefore do not consider this was the kind of situation that occurs where an employee is refraining from making a decision about whether to accept a breach and stay in employment, or resign and go, because there is an outstanding grievance or an outstanding appeal and they want to know the employer’s position before deciding what to do. We find that the Claimant knew the process was at an end and what she was doing at that time was placing on the record her observations or disagreement or disappointment with parts of Ms Wright’s findings. We consider what happened was consistent with the Claimant having her say and getting her comments on the record, but in a way that would allow her to then move forward in employment, and with the Claimant acting in a way that was maintaining that contract and its obligations in place. The sequence of events, their timing, and the content and tone of the contemporaneous documents, does not have the hallmark of this being an employee (after a time for reflection) saying the situation post the grievance appeal decision was intolerable, or unless the Respondent did certain things it was intolerable. JC’s letter in April 2022 did not have the demands that appeared later, for example, when calling for disciplinary proceedings and potentially for people to be dismissed. It was, in our judgement, the Claimant getting her comments on record and then moving on in her employment. That the Claimant may have welcomed Ms Wright engaging if Ms Wright had in fact chosen to do so does not meant that the Claimant was actually expecting that to happen or that being able to stay was conditional upon it. We do not find this was the kind of situation where an employee is, with reasonable diligence, giving the employer an opportunity to withdraw from the offending course of action or to remedy the breach. 5.118 Ms Churchhouse referred us to the fact the Claimant had reported the Respondent to the ICO. We have not been given the date but the Claimant mentions this in her witness statement at this part of the chronology, so we presume it was around then. The Claimant also referred LH to the NMC. We do not consider that these actions are contrary to affirmation. The Claimant was quite clearly still profoundly upset and fixated upon how she considered she had been treated by LH in the circumstances that led to the first tribunal claim and her belief that misinformation had been given in the first tribunal claim. This is evident from JC’s letter to Ms Wright in April 2022. A particularly large part of the letter is dedicated to this topic. But complaints about LH, or about what information was given to the tribunal in the first tribunal claim, are not part of the complaint of breach of trust and confidence relied upon in this case. As we have said Ms Wright’s conclusions on data protection matters were favourable to the Claimant but limited to an extent by the way in which the outcomes sought had been put to Ms Wright. We consider the Claimant’s actions in making the external referrals were indicative of the Claimant having exhausted internal processes, knowing she had done so, deciding to then separately utilise external avenues open to her on issues she then considered important, whilst deciding to maintain her contract of employment. They were not steps that were conditional on the Claimant being able to maintain the contract of employment. They were references to external bodies, not to the Respondent. Furthermore, in relation to the Claimant’s prior treatment by LH and the information given in the first tribunal claim, whatever the Claimant was seeking in that regard, it cannot have been the Claimant giving the Respondent the option to remedy the breach. This is because these things did not form part of the breaching conduct we have found.

5.119 We have also taken account of the Claimant’s health. The Claimant spoke to us about how unwell she was feeling, physically as well as mentally. She had been referred back to a pain management clinic. We accept and acknowledge that. However, we do not consider that this prevented the Claimant from making considered decisions. She was able to do things like make the referral to the ICO, report LN to the NMC, produce the letter JC sent to Ms Wright, send Ms Wright a technical note about her PILON related claim. We also accept that with the Claimant’s health, long service, and financial situation she would not rush to make a decision on whether to affirm and stay or to accept the repudiation and leave. But this was a period of 5 months. We have not looked at delay alone. But ultimately our view is that with a 5 month period, the Claimant conducting herself as she did in the way she did, and holding the Respondent to perform their part of the contract, that there was affirmation.

5.120 The Claimant did ultimately decide to resign (or retire as she originally called it), but we find she had already affirmed the contract before that point. We consider and find that the Claimant ultimately could not countenance a return because of her health and in large part due to an inability to move on from how she genuinely thought she had been treated by LH, her earlier dismissal and what had happened in the first tribunal claim. She had explored what her pension position would be and decided it was best for her to go notwithstanding it may have been earlier than when she would have chosen to retire if she found herself in better circumstances. We consider that as time had gone on the Claimant had also spent more and more time going over things. She ultimately ended up with a mindset where she was unable to see what she had achieved in her grievance appeal as against what she had asked that process to deliver. She could not see what it was had been recognised and apologised for by Ms Wright. Instead, the Claimant developed a mindset where she felt she had not been given enough and it was not to her ultimate satisfaction and she could not then countenance, particularly in view of her health, a return to work. But that does not, in our judgment, mean there had not been affirmation before that time when the Claimant had earlier demonstrated an intention to maintain the contract of employment. The complaint of constructive unfair dismissal is therefore not well founded and is dismissed. Equality Act Complaints Did C have the impairments of anxiety and depression at the material time such that they formed part of C’s overall admitted disability?

5.121 We turn now to the Claimant’s Equality Act complaints.

5.122 The medical records from May through to September 2018 demonstrate that the Claimant had the impairments of anxiety and depression at that time. The material period we are concerned with, however, commenced in July 2019.

5.123 There is no contemporaneous medical evidence available for 2019 or 2020 other than the fact that the Claimant continued to have prescriptions for Fluoxetine. Dr Tidley simply referred to “underlying conditions.”

5.124 We do know, however, that at the meeting on 22 July 2019 JOK raised the question of the Claimant receiving some counselling given the distress the Claimant was demonstrating. We also know that in September 2019 the Claimant completed the form at [268] referring to anxiety and depression.

5.125 By 2021 there is more contemporaneous evidence available with the Claimant reporting to Ms Allman that she suffered from low mood and anxiety. By 21 May 2021 and thereafter Dr Tidley reported significant stress related symptoms aggravating ongoing problems with fibromyalgia

5.126 It would have been helpful to have some medical evidence for the material period. However, on the balance of probabilities and based on all the evidence before us we do find that in the period 2019 to 2021 (and thereafter) the Claimant did have an impairment of anxiety and depression (that then formed part of her overall disability). We know that the Claimant was dealing with the diagnosis of other serious medical conditions and that fibromyalgia is a condition that is often linked to anxiety and depression. We know that the Claimant was by 2019 also having to deal with the loss of her job and with not having the ill health retirement pension she had anticipated. We know that she was exhibiting distress in July 2019 to the extent that counselling was discussed and shortly thereafter she was reporting to her line manager anxiety and depression. Given the Claimant’s medical history and the circumstances she was in we consider it highly unlikely that after September 2018 the Claimant’s anxiety and depression would have gone away so quickly by July 2019.

5.127 We accept that the Respondent had knowledge or reasonable knowledge of this impairment given they knew the Claimant’s medical history from the first tribunal claim, they knew the impact the loss of employment together with loss of pension had on the Claimant, and they knew the Claimant was exhibiting symptoms in July 2019 such that they recommended counselling. They also knew what the Claimant completed on the subsequent paperwork.

5.128 We would also doubt in any event that acceptance of this individual impairment or not, it would make any difference to the ultimate analysis of the disability discrimination complaints. Discrimination because of something arising in consequence of disability Do the following arise in consequence of a proven disability: the Claimant’s need for differential treatment around her working arrangements including the need for reasonable adjustments

5.129 We accept this was the case. The Respondent acknowledged this at the meeting of 22 July 2019 (and within the COT3). Do the following arise in consequence of a proven disability: the Claimant’s sickness absence and attendance record.

5.130 We accept the Claimant had a previous sickness and absence record prior to her previous termination and reinstatement that arose in consequence of her disability (and related to the previous tribunal claim).

5.131 We accept that the Claimant then had a further sickness and absence record from April 2021 that was in consequence of her disability. By 21 May 2021 Dr Tidley was reporting that the Claimant was unfit for work due to significant stress related symptoms that had aggravated her ongoing problems with fibromyalgia. Do the following arise in consequence of a proven disability: the Claimant’s inability to work full time?

5.132 We accept that in the period July 2019 to August 2020 the Claimant was unable to work full time in consequence of her disability (albeit there was as we understand it a period in which she was not working at all in any event due to Covid shielding). She was (when able to work under Covid restrictions) working phased return to work hours, not full hours, which was in consequence of her disability.

5.133 The Claimant was then working full time until April 2021. We accept that from April 2021 onwards the Claimant was unable to work full time (or indeed at all) by reason of her anxiety and depression and fibromyalgia (which were interlinking). Was the Claimant subject to the following treatment by the Respondent and if so was this treatment because of something arising in consequence of disability?

• From 22 July 2019 onwards, delaying in arranging occupational health support and advice

5.134 Ms Churchhouse submitted that this was unfavourable treatment done by Ms Mason. There was a delay, as found above. We do not, however, find that it was because of any of the things arising in consequence of disability whether by Ms Mason or anyone else. Ms Mason trusted that JOK was dealing with it as an operational matter. We have found it happened by virtue of mistake and human error: those involved thought someone else was actioning it.

• From 29 July 2019 onwards, failing to make/delaying in making reasonable adjustments, including adjustments that had been recommended by the OH Advisor

5.135 Ms Churchhouse submitted this was unfavourable treatment by Ms Mason. Ms Mason was not responsible for the Claimant’s line management. But in any event, for the reasons already given above we do not find as a matter of fact there was any such failure or delay and there was therefore no unfavourable treatment.

• From 29 July onwards, the failure by Sara Mason, Head of Workforce, and the respective Heads of Nursing Staff, to brief and/or to organise the Claimant’s records in a manner which properly recorded her prior treatment and allowed her role to be fully reinstated

5.136 In closing submissions Ms Churchhouse again said this was unfavourable treatment by Ms Mason. We have found that Ms Allman had been briefed and who, in turn, briefed Ms Jones. Ms Mason also appropriately advised CM in relation to actioning the administrative reinstatement matters such as pay and pensions.

5.137 We have found the Claimant’s records were not properly organised in terms of the lack of audit trail for the Claimant’s personnel file which would amount to unfavourable treatment. We consider the reason for that was that the file had been originally split for good reason but general poor record management, (as subsequently criticised by the ICO) meant it was not known or remembered where the file was, particularly the Health Visitor part subsequently found by Ms Davies. We do not find that this happened, by Ms Mason or anyone else, because the Claimant had a need for adjustments, or her historic sickness and attendance record, or because she was working reduced hours on a phased return to work. We also do not find that it impacted upon Dr Tidley’s ability to prepare a report.

• Between 29 July 2019 to 10 February 2021, delaying in implementing the Claimant’s new expense arrangements and then withdrawing those that had been previously agreed

5.138 Ms Churchhouse submitted this was unfavourable treatment done by Ms Mason.

5.139 We have not found there was a withdrawal of previously agreed expense arrangements.

5.140 We have found there was a delay in implementing the Claimant’s new expense arrangements in terms of setting up a working expenses account. That was unfavourable treatment. We do not find it was because of any of the identified things arising in consequence of disability. It happened because of a succession of technical problems. There was a delay in the Respondent getting a grip on those problems and proactively sorting it out. This included Ms Mason not initially picking it up in January 2020. However, this was not because the Claimant had a need for adjustments, or because of her sickness absence and attendance record or because of an inability to work full time hours. We have found it was simply an error on Ms Mason’s part. Ms Mason had been addressing some of the other points raised by JC and did later on try to sort out the expenses issue. We do not find that Ms Mason or anyone else involved had some ill will motivation towards the Claimant because of the need for adjustments, or historic absence records or the Claimant not working full time hours and used it to somehow scupper the setting up of an expense account or delay it being sorted.

• From 6 March 2020 to 11 May 2021, Chris Coslett shutting down the grievance at stage 2 and refusing to resolve the matter including by sending a Final Outcomes letter

5.141 Ms Churchouse submitted this was done by Mr Coslett and Mr Bartlett (who made changes to the draft outcome letter) because of the Claimant’s need for reasonable adjustments. We have not found that in general Mr Coslett (or Mr Barlett in his advice and assistance to Mr Coslett) was shutting down the grievance and refusing to resolve matters. Mr Coslett (and Ms Davies and Mr Bartlett) thought that the things that were in the grievance action plan had been resolved. He thought that other issues raised were new issues that could be taken forward in a grievance process and investigated in that way; he was not seeking to close the Claimant down. He was actually giving the Claimant the opportunity of more stages in the grievance process. AL was long absent by this point in time and those still involved had formed the genuine belief that they had moved in effect back to an informal stage.

5.142 We therefore do not accept there was unfavourable treatment in the way alleged by the Claimant. But we would not in any event find that the way in which Mr Coslett or Mr Bartlett handled the grievance was because of any of the things arising in consequence of disability. Mr Coslett did it because he thought it was the appropriate way forward and because he was following HR advice. He was not seeking to disadvantage the Claimant and did not act the way he did because of the Claimant’s need for adjustments, or because of her sickness and attendance record or because the Claimant had periods of not working full time hours. Mr Barlett’s actions again were simply reflecting what he thought the position was. He had worked conscientiously on the action plan. He was not seeking to disadvantage the Claimant because of a need for adjustments or the other matters identified.

• 16 April 2021 Chris Coslett stating that it was not for the Board to sort out reasonable adjustments and that the Claimant should sort them out herself with her line manager

5.143 We have not found that Mr Coslett said this specific comment to the Claimant. He said that the Claimant’s problem with her base having changed to Prince Charles Hospital was a new administrative issue the Claimant should be able to resolve with her line manager. He said excess mileage should be taken forward with the Claimant’s management following the usual processes with the Claimant able to consider a grievance after that.

5.144 We have found that Mr Coslett should have been more proactive in relation to excess mileage in that regard because of the particular circumstances. We consider that Ms Coslett wanted to bring what was a long outstanding process to an end which was in line with HR advice. He considered that there had never actually been a formal application for and decision about the Claimant’s entitlement to excess mileage. The Claimant had simply been told that it had not been granted by Ms Mason and JOK in July 2019. We have accepted Mr Coslett considered a formal decision should be first taken by the Claimant’s management team rather than by him. He thought he should not be dealing with something as a grievance when there had not yet been a decision to grieve about. As discussed above, viewed objectively, there was a better way he could have dealt with that. However, we do not find that Mr Coslett did what he did because the Claimant was in need of adjustments, (or because of her attendance and sickness record or because she had periods where she was unable to work full time.). We do not consider or find that Mr Coslett had anything against the Claimant being entitled to adjustments. He was just following what he understood the process to be.

• Karen Wright stating on or about 1st July 2022 that she was consciously ignoring any further progress with the Claimant’s grievance

5.145 There is no evidence Ms Wright said this. It fails as a matter of fact.

• From 6 August 2021 onwards, not progressing the Claimant’s appeal against the grievance findings

5.146 The less favourable treatment is not made out as a matter of fact. The appeal was progressed as best as Ms Wright could do in the circumstances she found herself in.

• From 18 February 2022, not implementing the findings where it was found the grievance was upheld.

5.147 This is not made out as a matter of fact. Ms Wright did implement her findings. There was no unfavourable treatment.

• From 6 March 2020 failing to use the All Wales Grievance Policy and take the required steps to resolve the Claimant’s grievances, a failure which continued to 6 October 2022

5.148 We do not find that the Respondent was wholesale failing to use the All Wales Grievance Policy. The action plan stage was outside the policy but was done with the Claimant’s consent. Steps were taken to resolve the Claimant’s grievances working to agreed points in the action plan.

5.149 The Respondent’s actions did not meet the timescales envisaged in the policy for various reasons explored above. That would be unfavourable treatment. The tardiness did not come from one or more controlling minds, it was because of multiple reasons including for example the impact of covid, the technical nature of some of the problems and that they were controlled externally by NWSSP and AL’s unexpected ill health. On occasion there was also delay on the part of the Claimant/ JC. We do not find that anyone involved was motivated towards acting outside policy or to cause delay because the Claimant had a need for adjustments, or because of her sickness and attendance record or because she had periods of being unable to work full time.

• From 13 April 2022 to 6 October 2022, effectively abandoning the Claimant and treating her as if she was no longer employed, including by not replying to her correspondence, not taking any steps to try and facilitate her return to work and continuing not to make reasonable adjustments

5.150 We have not found as a matter of fact that the Claimant was abandoned or treated as if she was no longer employed. Ms Jones as team leader maintained regular contact with the Claimant, indeed to an extent the Claimant had difficulties with. Ms Jones was willing to facilitate the Claimant’s return to work and to make adjustments for the Claimant. This included trying to speak to the Claimant about a possible change in office to somewhere with more support, there being a new senior nurse and the restructuring of Flying Start.

5.151 We find that Ms Wright did not reply to JC’s letter of April 2022 because she had reached a final grievance appeal decision which was the final stage under the policy, JC communicated on the Claimant’s behalf that it was accepted that it was at an end, and because of the risk of becoming ensconced in ongoing exchanges. It was not because the Claimant had a need for adjustments, or because of her sickness and absence record or because the Claimant had at times an inability to work full time. We have not found as a matter of fact that the Claimant’s attempts to start a fresh grievance (the “final grievance”) thereafter were received by the Respondent.

• On or about 6 October 2022, dismissing her constructively or otherwise.

5.152 The Claimant was not dismissed or constructively dismissed. For the reasons already given, she resigned. In view of the above findings we have not addressed the question of justification. The complaints of discrimination arising from disability are not well founded and are dismissed.

5.153 Given the factual overlap with other complaints and the fact that they all involve considering similar factual disputes as to what happened and making findings as to why the Respondent did what they did (or did not) we decided to concentrate in the first instance on the issues of detriment and whether any detriments were because the Claimant had done a protected act. In our analysis we therefore proceeded on the presumption that the lodging of a grievance/attending grievance meetings in March 2020, 4 October 2020, 16 November 2020, 12 January 2021, 12 April 2021, 16 April 2021, 6 August 2021 and 23 November 2021 were protected acts. The employment tribunal proceedings are also protected acts. by: From 29 July 2019 onwards delaying in arranging occupational health support and advice?

5.154 There was a delay, as found above. Ms Churchhouse submitted that Ms Mason was tasked with reinstating the Claimant, was aware of the previous tribunal proceedings and had not provided a good rationale why she did not organise or chase others to organise a prompt OH assessment. We do not, however, find that the delay was done by Ms Mason (or anyone else) because the Claimant had brought previous tribunal proceedings. We have found it happened by virtue of mistake and human error: those involved thought someone else was actioning it. Ms Mason trusted that JOK, who was Head of Nursing, was dealing with it as an operational matter. by: From 29 July 2019 onwards, not making and/or delaying in making reasonable adjustments, including adjustments that had been recommended by the OH Advisor and/or failing to make those on a long term basis.

5.155 Ms Churchhouse here relied on the claimed failure to reduce or delay in reducing the Claimant’s caseload to no more than 66. She says that this was a decision that sat with LH a witness in the previous employment tribunal proceedings. We did not hear from LH but do not see how the Respondent could reasonably have appreciated this was how the case was going to be put in closing submissions. We did hear from Ms Jones and Ms Allman. It was Ms Jones that was responsible for the Claimant’s day to day workload. We have found as a matter of fact the Claimant was never overloaded. The Claimant was seeking an official capped caseload at 66. The emails in fact tend to suggest that was not a decision that could be made by LH. But either way it was not something that the Claimant needed as an adjustment. She was being looked after by her managers for the reasons already set out above. We do not find as a matter of fact there was any such failure or delay and the Claimant therefore was not subjected to the pleaded detriment. by: From 29 July onwards, the Ms Mason and the respective Heads of Nursing, failing to brief staff and/or to organise the Claimant’s records in a manner which properly recorded her prior treatment and allowed her role to be fully reinstated and the COT3 terms to be fully implemented

5.156 We have found that Ms Allman had been briefed and who, in turn, briefed Ms Jones. Ms Mason also appropriately advised CM in relation to actioning the administrative reinstatement matters such as pay and pensions.

5.157 We have found the Claimant’s records were not properly organised in terms of the lack of audit trail for the Claimant’s personal file which would amount to a detriment. We consider the reason for that was that the file had been originally split for good reason but general poor record management, (as subsequently criticised by the ICO) meant it was not known where the file was, particularly the part subsequently found by Ms Davies. We do not find that this happened, by Ms Mason or anyone else, because the Claimant had brought tribunal proceedings or (later on) commenced a grievance or attended grievance meetings. It was due to organisational and operational failings in not having a proper audit trail, and Ms Mason or anyone else simply not remembering what was where. We also do not find that it impacted upon Dr Tidley’s ability to prepare a report or that it impacted on the Claimant’s reinstatement or implementation of the COT3 albeit it caused the Claimant distress as to the Respondent’s inability to say where her personal data was. by: Between 29 July 2019 to 10 February 2021, delaying in implementing the Claimant’s new expense arrangements/ her new base and then withdrawing those that had been previously agreed

5.158 We have not found there was a withdrawal of previously agreed expense arrangements or the new base.

5.159 We have found there was a delay in implementing the Claimant’s new expense arrangements in terms of setting up a working expenses account. That was to the Claimant’s detriment. We do not find it was because the Claimant had brought tribunal proceedings or later on commenced a grievance and attended grievance meetings. It happened because of a succession of technical problems. There was a delay in the Respondent getting a grip on those problems and proactively sorting it out. This included Ms Mason not initially picking it up when brought to her attention in January 2020. However, this was not because the Claimant had brought the previous proceedings. We have found it was simply an error on Ms Mason’s part. She had been addressing some of the other points raised by JC and did later on try to sort out the expenses issue. We do not find that Ms Mason had responsibility for setting up the Claimant’s expense account before she returned or that she considered she did and then failed to do so. It was an everyday task done by managers to set up new employees and it simply was not envisaged in advance that the problems that did in the event materialise would do so. by: From 6 March 2020 to 11 May 2021, Chris Coslett shutting down the grievance at stage 2 and refusing to resolve the matters raised, including by sending a Final Outcomes letter

5.160 We have not found that in general Mr Coslett shut down the grievance or was refusing to resolve matters. He thought that the things that were before him had been resolved and that the other issues raised were new issues that could and would be better taken forward in a new formal grievance process which would need an investigation and a hearing. But he was not seeking to deprive the Claimant of the right or ability to pursue matters. The view by this point in time was genuinely that it was an informal action plan stage.

5.161 We would not in any event find that the way in which he handled the grievance was because the Claimant brought previous proceedings or had commenced a grievance and attended grievance meetings. He did it because he thought it was the appropriate way forward and because he was following HR advice. He was not seeking to disadvantage the Claimant or penalise her for bringing previous proceedings or lodging and pursing a grievance. by:16 April 2021 Chris Coslett stating that it was not for the Board to sort out her line management.

5.162 We have not found that Mr Coslett said this specific comment to the Claimant.

5.163 Mr Coslett said the Claimant’s new problem with her base having changed to Prince Charles Hospital could be resolved by her line manager. He said the excess mileage should be taken forward with the Claimant’s management following the usual processes with the Claimant able to consider a grievance after that. We have found that Mr Coslett should have been more proactive in that regard because of the particular circumstances. We consider that Mr Coslett wanted to bring what was a long outstanding process to an end and was following HR advice in that regard. He also considered that there had never actually been a formal decision about the Claimant’s entitlement to excess mileage. He felt that a formal decision should therefore first be taken Claimant’s management team rather than by him. As discussed above, viewed objectively, there was a better way he could have dealt with that. However, we do not find that Mr Coslett did what he did because the Claimant had brought previous tribunal proceedings or had commenced grievance or attended grievance meetings. He was just doing what he thought was appropriate and would lead to a decision being taken one way or the other. by: On 16 April 2021, Ms Jones advising the Claimant that she had been advised by HR that the excess mileage allowance was “not applicable” to her.

5.164 This is not what Ms Jones said. She queried whether the Claimant’s submitted expenses claim included excess mileage and said her understanding was that excess mileage had not been granted. She was proceeding on what she had been told. Ms Jones did not do this because the Claimant had brought tribunal proceedings or had brought a grievance or had attended grievance meetings. She was simply exercising what she understood her managerial responsibilities to be. Nor did those in HR, such as Ms Davies or Mr Bartlett, in their contact with Ms Jones. They in turn were just reporting that Ms Mason and JOK had not on 22 July granted excess mileage nor had the November 2020 grievance meeting. by: Karen Wright stating on or about 1st July 2022 that she was consciously ignoring any further progress with the Claimant’s grievance

5.165 There is no evidence Ms Wright said this. It fails as a matter of fact. by: From 6 August 2021 onwards, not progressing the Claimant’s appeal against the grievance findings

5.166 This is not made out as a matter of fact for reasons already given. The appeal was reasonably progressed by Ms Wright in the circumstances. There was no detrimental treatment. In any event any delay was due to workload pressures and not because the Claimant had brought earlier tribunal proceedings or had brought the grievances that Ms Wright was actually seeking to address. by: From 18 February 2022, not implementing the findings where it was found the grievance was upheld.

5.167 This is not made out as a matter of fact. We have found Ms Wright did implement her findings. There was no detrimental treatment. by: From 6 March 2020 failing to use the All Wales Grievance Policy and take the required steps to resolve the Claimant’s grievances, a failure which continued to 6 October 2022

5.168 We do not find that the Respondent was wholesale failing to use the All Wales Grievance Policy. The action plan stage was outside the policy but was done with the Claimant’s consent. Steps were taken to resolve the Claimant’s grievances working to agreed points in the action plan.

5.169 The Respondent’s actions did not meet the timescales envisaged in the policy for various reasons explored above. That would be detrimental treatment. The tardiness did not come from one or more controlling minds, it was because of multiple reasons including for example the impact of covid, the technical nature of some of the problems and that they were controlled externally by NWSSP and Ms AL unexpected ill health. It was for some of the time a rudderless ship prior at least to Ms Wright’s involvement because of AL’s absence. On occasion there was also delay on the part of the Claimant/ JC. We do not find that anyone involved was motivated towards acting outside policy or to cause delay or not take control because the Claimant had brought tribunal proceedings or brought a grievance or attended grievance meetings. by: From 13 April 2022 to 6 October 2022, effectively abandoning the Claimant and treating her as if she was no longer employed, including by not replying to her correspondence, not taking any steps to try and facilitate her return to work and continuing not to make reasonable adjustments

5.170 We have not found as a matter of fact that the Claimant was abandoned or treated as if she was no longer employed. Ms Jones as team leader maintained regular contact with the Claimant, was willing to facilitate the Claimant’s return to work and to make adjustments for the Claimant. This included trying to speak to the Claimant about options to move to Calon Las, there being a new senior nurse and the restructuring of Flying Start.

5.171 We find that Ms Wright did not reply to JC’s letter in April 2022 because it was the end of the grievance process, that was clearly acknowledged in JC’s letter and because of becoming ensconced in ongoing exchanges. It was not because the Claimant had brought tribunal proceedings, or because she had brought a grievance or attended grievance meetings.

5.172 We have not found as a matter of fact that the Claimant’s attempts to start a fresh grievance thereafter were received by the Respondent. by: on 6 October 2022 dismissing the Claimant constructively or otherwise.

5.173 The Claimant was not dismissed constructively or otherwise. She resigned. The complaints of victimisation are not well founded and are dismissed. Failure to make reasonable adjustments Did the Respondent apply the following PCPs to the Claimant: the level of workload required of similar staff (full time) and the time allocated to perform caseload duties

5.174 The Respondent accepts this is a PCP. We do not find as a matter of fact there was such a PCP applied to the Claimant. The Claimant was not given the workload required of similar staff. Her workload was managed by Ms Jones and was less than full time staff because the Claimant was not performing all of the Flying Start clinics and other commitments in the caseload (which were covered by colleagues). This meant the Claimant had more time to pace herself and perform the caseload and workload duties that she did personally have responsibility for. The Claimant was also not undertaking safeguarding work which is a significant responsibility particularly in Flying Start areas. Once Covid hit and there were restrictions in place (and the Claimant was working) the Claimant’s workload was also reduced further by the fact the Claimant was not having any face to face contact with clients which is a significant part of the role.

5.175 If the reference is intended to refer to caseload numbers allocated against the Claimant’s name whether in a virtual or physical cabinet or on a spreadsheet then we do not find that the Claimant was placed at a substantial disadvantage by any notional caseload number allocated against her name for the reason just given. Cases would sit in a filing cabinet under the name of a Health Visitor as allocated to the GP surgery. It did not mean the work was to be undertaken by the Claimant; it was covered by other Health Visitors. The Claimant’s actual workload demands in terms of what she had to do day to day were less and did not represent the totality of the caseload nominally in the filing cabinet. We do not find notional caseload numbers reduced the Claimant’s ability to attend work, or made her working day more difficult or reduced her ability to resolve workplace issues or caused fatigue, harm and deterioration to her health because she was not overloaded with work.

5.176 We in particular do not accept that the Claimant was caused harm by having regulatory responsibility for a caseload listed in her name. We accept the evidence of Ms Jones that the responsibility lay with the person actually undertaking the visit and contact (and with Ms Jones and Ms Allman as managers above her). This is demonstrated by the email the Claimant’s colleague sent on 20 November 2020 expressing concern about the work pressures on her (i.e. the colleague). The Claimant herself in her evidence also accepted that it was her managers’ responsibility to arrange resources and alleviate the burden on colleagues, not her own. There is no contemporaneous evidence of the Claimant complaining about being distressed about the regulatory pressures on her because of the notional caseload number held in her name.

5.177 If we are incorrect on the above we would not find there was a failure to make reasonable adjustments. The Claimant’s workload was adjusted for her. The figure of 66 for a Flying Start caseload was a figure the Claimant herself extrapolated. It was never recommended by OH and was not a measure that the Claimant reasonably needed when her workload was adjusted by the fact she was not undertaking all of the casework on the caseload nominally held against her name. She was given additional time to undertake caseload duties and indeed other adjustments too. Did the Respondent apply the following PCPs to the Claimant: the working hours (full time) required for similar staff

5.178 This is not a clear allegation. A full time Health Visitor would work 37.5 hours a week and the Claimant was reinstated as a full time member of staff. If that is the PCP then it is difficult to see how it was applied to the Claimant to cause her substantial disadvantage. The Claimant was told at the outset she would have a phased return to work and she worked 3 days a week with no pressure to increase those hours until Dr Tidley’s report was received. He said the Claimant was fit to increase her hours back to full time over a 3 month period but this did not happen at the time. There was a discussion about increasing the Claimant’s hours but the Claimant was due to have a meeting with JOK and see Dr Tidley again. Lockdown then intervened. The PCP was not applied to the Claimant in this time or so as to cause her substantial disadvantage and in any event the Claimant’s workload was being managed.

5.179 The Claimant returned to work 5 days a week in August/September 2020 but there remained flexibility in her hours and in how she structured her day and her working hours. It was with her agreement. There is no evidence and we do not find that the Claimant suffered a substantial disadvantage in this respect. The Claimant’s workload was substantially reduced by the fact she could not have face to face contact with members of the public. The Claimant was then shielding again from November 2020 until 1 April 2021 where again her workload was reduced by virtue of the restrictions. She was then in work from 1 April to the date she fell when at Kier Hardie but again there is no evidence that her working hours were not with her agreement. She continued to have flexibility and there is no evidence she suffered a disadvantage in this respect.

5.180 The PCP either was not applied to the Claimant or it did not cause her substantial disadvantage. In any event reasonable adjustments were made to working hours. Did the Respondent apply the following PCPs to the Claimant: the number of cases allocated to a person working a flying start shift and/or a generic health visitor workload

5.181 The number of cases allocated to a generic Health Visitor is not relevant as it was not applied to the Claimant who had moved to the Flying Start team.

5.182 The Respondent accepts that the number of cases allocated to a Flying Start Health Visitor was about 110 and that it is a PCP. The Respondent accepts that it would have placed the Claimant at a substantial disadvantage if it had been actually applied to the Claimant or applied without adjustment.

5.183 As above, we accept the evidence of Ms Jones that the Claimant did not have that many cases and importantly the Claimant was also not expected to cover all the work required on any case allocated against her name and which was regularly picked up by colleagues. The PCP was not applied to the Claimant or applied in a way to cause substantial disadvantage. In any event the Respondent made reasonable adjustments as set out above in relation to the PCP relating to workload. Did the Respondent apply the following PCPs to the Claimant: the amount of travel time allowed by mobile staff

5.184 We do not find that this was a PCP. Health Visitors were able to manage their visits and travel time within their daily work; it was not subject to limits.

5.185 If it is intended to be about the work commute (when the Claimant was attending the workplace) then we accept there would likely have been a PCP in place that travel to the primary place of work was in the individual’s own time. If so, we do not find that this was applied to the Claimant or applied in a way to cause substantial disadvantage. Ms Allman and Ms Jones were mindful of the impact of travel time on the Claimant and potential fatigue. She was permitted to arrive late and to leave early in the afternoon as needed and to manage that herself. Alternatively reasonable adjustments were made in that regard. Did the Respondent apply the following PCPs to the Claimant: the expenses for mobile staff and/or the deemed base site for expense purposes (3)Reducing her ability to resolve workplace issues; (4)Causing fatigue, harm and deterioration to her health/impairments

5.186 The Respondent accepts this is a PCP. There was an expense policy under which the Claimant was entitled to business mileage expenses. The application of that PCP is not, however, the source of the disadvantage the Claimant suffered in getting an expenses account set up and working. The difficulties were with the technical set up.

5.187 In terms of a deemed base site for expenses purposes, the scheme and its criteria were never clearly set out before us by either party. Our baseline understanding is that under the expense policy for staff the expense account is set up with a deemed base site for expenses claims which allows expense amounts to be calculated. Our understanding is that is the usual place of work is used unless the individual has made a successful application under the policy to be able to claim excess mileage from another site. In particular, the evidence of Mr Coslett was that there was an application process to follow and criteria that applied such as an employee being required to change their place of work, for example due to restructuring.

5.188 We do not find that this PCP as pleaded was applied to the Claimant to cause her substantial disadvantage as pleaded. The Claimant could apply for excess mileage but did not do so (until possibly the latter part of her service although we do not have the details about the circumstances in which excess mileage was eventually awarded). Instead, she asserted she should have an entitlement as a reasonable adjustment and that Ms Mason and JOK had awarded it (when they had not) and suggested that Dr Tidley had confirmed this (when he had not). There was no decision made under the expenses policy to cause the Claimant disadvantage or to cause the disadvantage set out at paragraph 19.1 of the List of Issues/ as pleaded (which notably is not about financial disadvantage). Further having a deemed base site as Treharris for expenses purposes did not cause any of the pleaded disadvantages. Again financial disadvantage is not pleaded.

5.189 We have found elsewhere that given the particular circumstances Mr Coslett should have driven the application process forward but that is not itself a PCP or one that has been pleaded. Nor is any alleged PCP of, for example, being required to move place of work. Did the Respondent apply the following PCPs to the Claimant: the arrangements with regard to offering occupational health support and advice for staff

5.190 The Respondent denies there was such a PCP. The Respondent also denies that if there was a PCP it placed or would have placed the Claimant at a substantial disadvantage compared to someone who was not disabled. They observe that the Claimant was referred to OH regularly and the implication that the original delayed referral in 2019 is a PCP is incorrect.

5.191 We agree. We do not see what it is said that is about arrangements for offering OH support and advice that is a PCP or one that caused the Claimant substantial disadvantage compared to non disabled people. The service exists and the Claimant was referred under it.

5.192 In respect of the delay in the first referral. We do not find that was the application of a PCP. It was a one off mess up. We do not find that there is any evidence of continuum before us in the sense of some commonality that other cases have or would suffer the same fate such as to amount to a practice (or provision or criterion).

5.193 We also have not found that there was any failure to implement OH recommendations on adjustments swifty. Nor can we see that there was a PCP of not implementing OH recommendations swiftly (or that one is pleaded). Did the Respondent apply the following PCPs to the Claimant: the line management arrangements including who the senior nurse line manger of a health visitor is

5.194 The Respondent accepts that line management structure in a PCP. We, however, agree with their submission that no evidence has been brought forward as to how the Claimant might have been substantially disadvantaged by a line management structure per se or what reasonable adjustments she might require to avoid such a structure.

5.195 The Claimant’s line managers were Ms Jones and Ms Allman. No disadvantage to the Claimant as a disabled person compared with non disabled people has been identified in that regard.

5.196 If it is said that the PCP is, for example, the generic position that the senior nurse line manager will normally be the individual with responsibility for that region and if we accept for arguments sake that could cause the Claimant substantial disadvantage in terms of aggravating her impairments, the Respondent did not fail to make reasonable adjustments. The Respondent from the outset brought in Ms Allman as the Claimant’s senior nurse. The Claimant was told it was temporary whilst a long term solution was found. But that was reasonable; on anyone’s evidence it was not ideal to have one member of the team having a separate line manager out of the region and it was reasonable to want to see how that worked out and whether there were other potential solutions. But we have not found as a matter of fact that the Claimant was ever told she was being returned to her former senior nurse. The letter of March 2021 confirming roles and responsibilities also then confirmed her line management chain. Did the Respondent apply the following PCPs to the Claimant: the Board grievance procedures for resolving employee matters and disputes internally

5.197 The All Wales Grievance Procedure is a policy but it did not as a whole place the Claimant at a substantial disadvantage.

5.198 The employment appeal tribunal has warned about reverse engineering reasonable adjustment claims by starting with the adjustments. However, in a wish to be fair and try to properly understand and assess the Claimant’s claim we did look to the pleaded adjustments which are:

(a) Not shutting down the grievance at stage 2 and refusing to resolve the matter further but continuing to seek to resolve her grievances;

(b) Taking reasonable steps to explore and facilitate her return to work from April 2022 after the Grievance Stage 3 decision and/or implementing the grievance findings in a meaningful way;

(d) Meeting with the Claimant after the Grievance Stage 3 decision and arranging a return to work plan;

(e) Resolving grievances promptly.

5.199 It is not the pleaded case that shutting down a grievance at stage 2 was a PCP applied to the Claimant. We also did not find as a matter of fact Mr Coslett was shutting down a grievance in the sense of refusing to resolve matters. He was saying he thought the issues were new and the Claimant should submit a fresh stage 2 grievance where it could be thoroughly looked at. But even if we are wrong on that we would find that Mr Coslett’s actions were a one-off rather than the application of a PCP. The circumstances and background were highly unusual and we do not find that Mr Coslett’s approach on 16 April and in his decision letter was a general or habitual approach or that there is any indication it would apply again in the future.

5.200 It is not the pleaded case that there was a PCP of, for example, not facilitating returns to work after Grievance stage 3 decisions, or not implementing grievance findings in a meaningful way. In any event we have not found that these things happened. It is not the pleaded case that there was a PCP of not meeting after a grievance decision and arranging a return to work plan. But, again, in any event we have found Ms Jones did meet with the Claimant and did wish to arrange return to work plan but the Claimant said she was not well enough to engage.

5.201 It is not the pleaded case that there was a PCP of not allowing the opportunity to challenge a Stage 3 Grievance decision. We also cannot see how it is said that would cause the pleaded substantial disadvantage. Having an end to a grievance policy and stages would apply to everyone. We would also not find the proposed adjustment to be reasonable. There has to be, for the benefit of certainty for everyone, an end stage to an employer’s grievance process. The Respondent’s process at stage 3 was the existing right of appeal. The Claimant had also had the opportunity of going instead to stage 2 but she had wanted to go to stage 3. She knew it was the end of the process.

5.202 Likewise it is not the pleaded case that there was a PCP of not resolving grievances promptly. We have no evidence before us as to how other grievances were handled. The failure to make reasonable adjustment complaints do not succeed and are dismissed.

5.203 We should add that the Claimant’s counsel in this case invited us to draw inferences from alleged disclosure failings relating to (a) the OH referral of 30 September 2019, (b) the funding arrangement proportions for a Health Visitor role i.e. the part funded by the local authority and the Respondent and (c) the All Wales Dignity at Work policy relating to unfair treatment that amounts to discrimination, victimisation or harassment. We, however, have no evidence before us that a request was made for these documents by the Claimant’s lawyers to the Respondent’s. That would be the standard and appropriate course of action in the employment tribunal. As such we did not consider it appropriate to draw any inference from the alleged failure to provide them.

5.204 The Claimant’s complaints are therefore not found to be well founded and are dismissed. As the complaints have not succeeded on the merits we have not addressed the time limit points raised by the Respondent in the discrimination complaints. As a Tribunal panel we wish to end with an observation for the Respondent. Obviously we assessed this case with the benefit of hindsight. But we do consider that the Respondent may wish to consider in the future, where such uncommon cases of reinstatement occur, appointing a single point of contact for the reinstated employee. It would not be about day to day workload matters but about general, practical reintegration issues and an individual that the employee would have open door access to. It strikes us, again with the benefit of hindsight, it would have been helpful for the Claimant to have one person to go to, and that person being someone with sufficient clout that they could make sure any problems were fixed early on and to see such fixes through to completion.