Ms C Harvey v The Secretary of State for Justice: 1600873/2022 Ms C Harvey v The Secretary of State for Justice: 1600873/2022

EMPLOYMENT TRIBUNALS

Case No 1600873/2022

Between

Ms C HarveyClaimant

The Secretary of State for JusticeRespondent

Before

Employment Judge T. Vincent Ryan

Date 19 February 2025

REASONS

Introduction:

[1]By oral judgment delivered on 17 October 2024 (written judgment sent to the parties on 18 October 2024) the Claimant’s claim was dismissed in full, namely the following claims: 1.1. Disability Discrimination: 1.1.1. Direct Discrimination 1.1.2. Discrimination arising from disability 1.1.3. Failure to make reasonable adjustments. 1.2. Victimisation. 1.3. Unauthorised deduction form Wages.

[2]By letter dated 18 October 2024 the Claimant made an application for a preparation time order (and subsequently sent reminders that the outcome was outstanding in November and December 2024, and in January 2025) citing: 2.1. Failure on the part of the Respondent to review the hearing bundle following an Order to do so by Judge Hartfield 2.2. not understanding the list of issues specifically that claims pursued by her related both to times prior to her move to the Newtown office and after her move to Newtown office, which confusion caused the final hearing to be part heard in May 2024 having to have to resume again in October 2024 2.3. the hearing listed to take place in December 2023 was postponed because of Counsel’s failure to attend 2.4. intimidation 2.5. unreasonable conduct and negligence.

[3]The Respondent made its written submissions on 22nd October 2024.

[4]The Claimant’s initial application was made in 2023 but was stayed pending the outcome of the claim and Judgment. The initial application was in similar terms to the one now being considered. The Respondent wrote to the Tribunal on 16 November 2023 in response to the initial application.

[5]There has been a regrettable delay in this matter being considered by the Tribunal and for which I have already apologised and at least in part explained, by reference to my judicial commitments. It was agreed at the final hearing that if the Claimant wished to pursue this application she should do so in writing and that once the Respondent had been given a reasonable opportunity to respond, I would deal with the matter on the papers. It was further agreed that as the application related to matters prior to the final hearing and not involving conduct at either the hearing in May 2024 or its conclusion in October 2024, I could deal with the application alone and without input from the non-legal members who sat with me at the final hearing. In the light of the history of this matter I will set out it's general evolution below.

[6]ACAS Early Conciliation took place between 5 March – 15 April 2022 and the Claimant presented her ET1 Claim Form on 28 July 2022.

[7]When represented, the Claimant was very ably represented by her daughter Mrs Bulteel, an experienced lawyer but not an Employment lawyer and the relationship was personal and supportive; Mrs Bulteel appeared as a Lay Representative; I say this to confirm that the Claimant was not “legally represented” in the terms envisaged by Rule 73 (2). Mrs Bulteel advised and assisted the Claimant throughout the litigation.

[8]There were the following case management preliminary hearings, reflecting the complexity and breadth, both in legal terms and duration, of the Claimant’s claims. The parties have received minutes of each of these hearings (except that at 8.5); I need not therefore recite what occurred nor the orders made on each occasion: 8.1. 30 January 2023 conducted by Employment Judge Harfield 8.2. 24 March 2023 conducted by Employment Judge Jenkins 8.3. 11 December 2023 conducted by me in lieu of the full merits hearing that had been listed to be heard 11 - 15 December 2023 but which was postponed owing to the illness and unavailability through illness of the Respondent’s Counsel 8.4. 25 October 2023 conducted by Employment Judge Harfield 8.5. 13 December 2023 a dispute resolution appointment conducted by Employment Judge Brace.

[9]I note that the documentation relied upon by the parties was voluminous. Disclosure was long and complicated, as was the preparation of documentation. The Claimant sought to rely on a considerable amount of documentation and prepared extensive documents some of which embedded other documents as noted by the Respondent in its submissions. I see that the hearing bundle comprised 672 pages and other documents were cross referenced.

[10]The Employment Tribunal Procedure Rules 2024 (The Rules): 10.1. Rule 73 (2) explains what a preparation time order is, being in order to reflect the time spent by a litigant in working on the case, except time spent at the hearing, while not legally represented 10.2. Rule 74 sets out when an application may be made, such as when a party to litigation has acted vexatiously, abusively, disruptively, or otherwise unreasonably, or in certain circumstances where hearings are postponed 10.3. Rule 75 sets out the procedure to be adopted, namely that there ought to be an application and no order can be made without giving the potential paying party a reasonable opportunity to make representations. 10.4. Rule 77 specifies the amount that may be awarded in respect of preparation time orders where the hourly rate as at the 6th April 2024 is £44.

[11]I have a re-read the electronic file containing the minutes of the various hearings and the final Judgment dismissing the Claimant’s claims. I have re-read the Claimant’s application and the Respondent’s response to the application in 2023 and in 2024.

[12]I reminded myself that the Employment Tribunal is not typically a costs jurisdiction, by which I mean that it is not automatic or expected that costs follow the cause, that the winning party will have their costs paid. The Respondent does not seek payment of its costs. The point, however, I need to consider and emphasise is that the circumstances in which a preparation time order or costs order may be made are limited; there is a relatively high bar for an applicant to cross. There is a considerable amount of established authority on the meaning of the terms “vexatiously, abusively, disruptively, or otherwise unreasonably” in relation to acts or omissions by a party to litigation. At all times I am required to have in mind the overriding objective of the Rules, and to act in the interests of justice.

[13]I also wish to emphasise that I have considerable sympathy for any litigant in person involved in such complicated litigation, especially facing professionally represented opponents. Litigation is difficult; it is labour intensive. It is difficult and labour intensive for legal representatives as well, but they may be used to it and they are at least familiar with the Tribunal's requirements and what will be required by both parties at a hearing if it is to be a fair hearing. For the uninitiated litigation must seem like an opaque barrier to having one’s claims, complaints, and grievances aired and considered. It may be felt at the system is not ideal, however it is the best that we have got. The parties and the Tribunal have to deal not only with the complexity of the law, the rigours of the Rules, but also human nature and the fact that unplanned and unforeseen circumstances may arise that hinder smooth preparation.

[14]There is a difference between deliberate, wilful, or reckless acts and omissions intended to baulk another party and to gain an unfair advantage on the one hand and mere misunderstanding, error, or human failure on the other part; the same may be said for error or misunderstanding as opposed to negligence. Before criticising any party in the preparation of litigation I would want to consider whether there was an any unfairness which jeopardised the preparation, or made the work unreasonably more difficult, and more importantly jeopardised there being a fair hearing.

[15]In this case it is apparent that, quite innocently, both parties made a lot of work for each other and for themselves. This was necessitated by the depth and complexity of the claims as I have said. The Claimant and Mrs Bulteel were extremely diligent and conscientious, concentrating a considerable amount of time and effort on these claims. That is entirely understandable and laudable. That said, there was a density, and consequential lack of clarity at various times, necessitating extensive inquiry and research. The Claimant had personal motivation and was willing to invest whatever time she had to her cause; with all due respect Mrs Bulteel was in a similar situation. I do not consider it would be reasonable to demand the same from the Respondent although I fully expected conscientious, professional, commitment to the preparation for the hearing with compliance with orders made; on the whole that was achieved.

[16]Neither side prepared perfectly, and neither could they be expected to. I am however satisfied that both parties were able to prepare fairly, and neither was disadvantaged by the conduct of the other in terms of being able to put forward their evidence and argue their case. I am satisfied that there was a fair hearing. I am grateful to the Claimant for her kind and gracious words of thanks about the conduct of the hearing which she included in her latest application.

[17]With regard to the preparation of the hearing bundle, I do not expect the Claimant to have been aware that bundle preparation is often, and is notoriously, difficult in cases such as this. Its evolution was not perfect. It was however good enough and it involved a considerable amount of time in in the preparation of it from both parties. The Claimant’s application, and my consideration of the case papers, leads me to conclude that the Respondent did not act vexatiously, abusively, disruptively or otherwise unreasonably, or even negligently, in relation to the bundle. 18. . There was confusion over the list of issues. My own reading of the list of issues and the preparatory minutes was confused too. It was apparent throughout, and to everybody, that the Claimant was making claims relating to her placement at Wrexham. It was my understanding, and that of the Respondent, that her redeployment to Newtown was at least in part a resolution to the Wrexham issues. It was not apparent to me, any more than it was to the Respondent, that the Claimant wished to pursue a considerable number of complex claims also in relation to her redeployment and her work at Newtown. The extent of the Newton claims only became apparent during the final hearing in May 2024. I accept it was clear to the Claimant what she meant because it was her case, but she had not communicated it as clearly as she thought she had. This is not a criticism. I think the misunderstanding was understandable and was reasonable. The resumed hearing in October 2024 was required to give the Claimant every opportunity to put her claim and the Respondent every opportunity to respond to it. If there had not been that resumed hearing there would have been an injustice to both parties. There was a genuine misunderstanding which had to be resolved, and was resolved, so that there was a fair hearing of all claims and in relation to both working sites.

[19]The final hearing was initially set, following case management and a better understanding of some of the claims, to be heard over 5 days in December 2023. The Claimant attended the hearing as did I with non-legal panel members. Unfortunately Counsel for the Respondent was ill and unavailable. It was reported that he would not be available on the second day either and it was agreed that we would not be able to conclude the hearing or even the evidence in three days. My minutes of the postponed hearing records that it was mutually agreed that the matter had to be postponed to a later date. There is nothing before me to suggest that Counsel acted negligently, vexatiously, abusively, disruptively, or otherwise unreasonably; the application to postpone was reasonable and inevitable. I have no reason to doubt that Counsel was ill and unavailable as claimed.

[20]The Claimant has repeatedly used the word intimidation. I did not witness any, and I do not see any evidence of intimidation before me.

[21]Whilst accepting that the preparation for the hearing was not smooth, and that the Claimant and her representative put a considerable amount of work into it, I am not satisfied that they have established that the Respondent acted in such a way as to justify a preparation time order. Approved by JUDGMENT having been sent to the parties on 18 October 2024 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:

[1]The Claimant’s application for Reasons was referred to me on Monday 9 June 2025; this judgment was drafted on Wednesday 11 June 2025 to expedite its promulgation (my first opportunity), and I apologise to the Claimant for the delay, which I am doing my best to mitigate. The Claimant’s request for a copy of the “outcome” was not treated as a request for Reasons. The short form Judgment was promulgated in a timely way, confirming the outcome. It was only in recent correspondence about other matters that it became apparent to the administration that the Claimant expected to receive these Reasons. To expedite matters, and bearing in mind other judicial commitments, I have as far as possible limited these Reasons to the wording of the oral judgment delivered to the parties at the conclusion of the final hearing. In so far as it lacks finesse for that reason, again I apologise, but I must ensure that the parties receive this document as soon as practicably possible; I have necessarily clarified the oral judgment where appropriate.

[2]The Claims: 2.1. Direct Disability Discrimination 2.2. Discrimination Arising from Disability 2.3. Failure to make Reasonable Adjustments 2.4. Victimisation 2.5. Unauthorised Deduction from Wages

[3]Witnesses: 3.1. The Claimant (C) 3.2. H Banner (Representative/Support for the Claimant at work) 3.3. E Bowen 3.4. A Conway (Line Manager at Wrexham) 3.5. G Rennie (Line Manager at Newtown) 3.6. J A Clarke (a Manager at Wrexham)

[4]At the May hearing it was not apparent that the Claimant was making claims not only in relation to her deployment at Wrexham but also later in Newtown, deployment there having been considered by the Respondent as a solution to the Claimant’s concerns. In these circumstances time was taken for the Claimant to identify Wrexham claims, Newtown claims, and claims in relation to both sites, and also to consider withdrawing some claims. The initial agreed List of Issues was set out by Employment Judge Harfield in her minutes of a preliminary hearing held on 25 October 2023. The clarified List of (liability) Issues (based on that List) is: 4.1. Time limits 4.1.1. Were the discrimination and victimisation complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide: 4.1.1.1. Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates? 4.1.1.2. If not, was there conduct extending over a period? 4.1.1.3. If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period? 4.1.1.4. If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide: 4.1.1.5. Why were the complaints not made to the Tribunal in time? 4.1.1.6. In any event, is it just and equitable in all the circumstances to extend time? 4.1.2 Was the unauthorised deductions complaint made within the time limit in 23 etc of the Employment Rights Act 1996? The Tribunal will decide:4.1.2.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the date of payment of the wages from which the deduction was made etc?

4.1.2.2 If not, was there a series of deductions and was the claim made to the Tribunal within three months (plus early conciliation extension) of the last one?

4.1.2.3 If not, was it reasonably practicable for the claim to be made to the Tribunal within the time limit?

4.1.2.4 If it was not reasonably practicable for the claim to be made to the Tribunal within the time limit, was it made within a reasonable period? 4.2. Direct disability discrimination (Equality Act 2010 section 13) 4.2.1. Did the Respondent do the following things: 4.2.1.1. Require the Claimant to attend FARM meetings on 16 June 2022 (and subsequent FARM Meetings since submitting ET1) despite the Claimant having put in a request for Sick Leave Excusal on 3rd May and again on 24th May 2022 (with wet signature). WITHDRAWN AND DISMISSED 4.2.1.2. Fail to put the Claimant on Disability Leave and instead placed her on Sick Leave when Disability Leave (as per internal policies) is ‘an example of a reasonable adjustment’ and can be used ‘whilst a reasonable adjustment is being made’, therefore demonstrating a lack of intention to implement reasonable adjustments specific for the Claimant. A WREXHAM CLAIM ONLY 4.2.1.3. Mandate that the Claimant attend a further Occupation Health review ahead of making a decision on her Sick Leave Excusal, despite the Sick Leave Excusal policy stating the decision to award Sick Leave Excusal or not, rests with the employer and an occupation health referral is not mandatory. A WREXHAM CLAIM ONLY 4.2.1.4. Was that less favourable treatment? The Tribunal will decide whether the Claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the Claimant’s. If there was nobody in the same circumstances as the Claimant, the Tribunal will decide whether she was treated worse than someone else would have been treated. 4.2.2 If so, was it because of disability? 4.2.3 Did the Respondent’s treatment amount to a detriment? 4.3 Discrimination arising from disability (Equality Act 2010 section 15)

4.3.1 Did the Respondent treat the Claimant unfavourably by:4.3.1.1 In September 2021, requiring the Claimant to work from the large open plan OMU offices at HMP Berwyn which impacted her ability to successfully carry out her role due to issues arising from dyslexia (working memory, processing speed and phonological awareness). A WREXHAM CLAIM ONLY

4.3.1.2 In April 2022 Dr Mishir assessed matters involving the Claimant met the criteria for reporting under RIDDOR and recommended the Respondent report to this the HSE. In May 2022 the Claimant submitted a Sick Leave Excusal application. In August 2022 the Respondent informed the Claimant a mandatory medical practitioner assessment was required before the Respondent could decide whether to grant Sick Leave Excusal, despite the Respondent having the autonomy to make that decision, without medical practitioner advice. A WREXHAM CLAIM ONLY

4.3.1.3 In November 2022 failing to allow the Claimant extra time to complete assessment activities whilst on the Horizon Residential Training, which was required for her new role. WREXHAM & NEWTOWN

4.3.1.4 Failing to implement a reduction of workload or afford the Claimant additional time to complete tasks under the newly introduced ‘Offender Management in Custody’ (OMiC) working model, with associated increased KPIs. WREHAM & NEWTOWN

4.3.2 Did the following things arise in consequence of the Claimant’s disability: The Claimant’s sickness absence which she says arose due to her workload and working environment pressures which were linked to her dyslexia, and, she says, failure to make appropriate adjustments?

4.3.3 Was the unfavourable treatment because of any of those things? / Did the Respondent require the Claimant to attend a mandatory because of [e.g.] that sickness absence?

4.3.4 Was the treatment a proportionate means of achieving a legitimate aim? The Respondent says that its aims were: To manage its workforce and to manage the Claimant’s employment.

4.3.5 The Tribunal will decide in particular:4.3.5.1 was the treatment an appropriate and reasonably necessary way to achieve those aims;

4.3.5.2 could something less discriminatory have been done instead;

4.3.5.3 how should the needs of the Claimant and the Respondent be balanced?

4.3.5.4 Did the Respondent know, or could it reasonably have been expected to know that the Claimant had the disability? From what date? 4.4 Indirect discrimination (Equality Act 2010 section 19) – WITHDRAWN AND DISMISSED IN FULL. 4.5 Reasonable Adjustments (Equality Act 2010 sections 20 & 21)

4.5.1 Did the Respondent know, or could it reasonably have been expected to know that the Claimant had the disability? From what date?

4.5.2 A “PCP” is a provision, criterion or practice. Did the Respondent have the following PCPs:4.5.2.1 The requirement, from September 2021, to work in a large open plan OMU office; A WREXHAM CLAIM ONLY

4.5.2.2 The workload requirements and KPIs under the Offender Management in Custody model of working; WREXHAM & NEWTOWN

4.5.2.3 The requirement to make the Claimant subject to Sickness Absence Policy procedures. WREXHAM & NEWTOWN

4.5.3 Did the PCPs put the Claimant at a substantial disadvantage compared to someone without the Claimant’s disability, in that:4.5.3.1 The noise and busyness of the shared office space impaired the Claimant’s ability to concentrate and work efficiently and effectively as her dyslexia means she has difficulties with working memory, processing speed and phonological awareness;

4.5.3.2 From November 2021 the Claimant was struggling with her workload due to her caseload, working hours and KPIs to meet under new OMiC model as her dyslexia means she has difficulties with working memory, processing speed and phonological awareness; WREXHAM & NEWTOWN

4.5.3.3 Due to the pressures of the working environment and workload requirements the Claimant reported sick in December 2021 and was placed on half pay in May 2022; WREXHAM & NEWTOWN

4.5.4 Did a physical feature, namely the design of the open plan working space, put the Claimant at a substantial disadvantage compared to someone without the Claimant’s disability, in that the open plan lay out of the OMU office, with 86 work stations was too noisy and busy to accommodate her dyslexia which presents in difficulties with working memory, processing speed and phonological awareness.

4.5.5 Did the Respondent know, or could it reasonably have been expected to know that the Claimant was likely to be placed at the disadvantage?

4.5.6 What steps could have been taken to avoid the disadvantage? The Claimant suggests:4.5.6.1 From November 2021, allow the Claimant the autonomy to continue working from home as required; WREXHAM & NEWTOWN

4.5.6.2 From November 2021, provide the Claimant with an office space free from distractions or noise; A WREXHAM CLAIM ONLY

4.5.6.3 From November 2021, reduce the Claimant’s workload; WREXHAM & NEWTOWN

4.5.6.4 Place the Claimant on Disability Leave instead of sick leave therefore ensuring that Reasonable Adjustments were put in place as per their internal policy (which states Disability Leave is a temporary reasonable adjustment until permanent solutions are found). A WREXHAM CLAIM ONLY

4.5.7 Was it reasonable for the Respondent to have to take those steps and when?

4.5.8 Did the Respondent fail to take those steps? 4.6 Victimisation (Equality Act 2010 section 27)

4.6.1 Did the Claimant do a protected act as follows: 4.6.1.1 On 9 December 2021 sent an email to Ms Conway saying she was unable to continue working in the current circumstances without reasonable adjustments being in place.

4.6.2 Did the Respondent do the following things:4.6.2.1 On 17 January 2022 require the Claimant to attend a meeting with two senior managers present (the second there to take notes) which the Claimant says was onerous and intimidatory;

4.6.2.2 Fail to remove the Claimant from Duty Officer responsibilities;

4.6.2.3 Allocate the Claimant’s Duty Officer responsibilities to another colleague when she was fulfilling these tasks from home, which caused resentment within the team;

4.6.2.4 On 17 January 2022 Ms Conway sent an email to HR stating she was concerned she was wasting her time hearing the Claimant’s grievance;

4.6.2.5 18 January 2022 and again on 18th March 2022 failed to share occupational health narratives with the Claimant, despite narratives confirming the Claimant’s consents;

4.6.2.6 On 25 January 2022, Ms Conway chaired the Claimant’s grievance meeting when Ms Conway was the subject of the Claimant’s grievance;

4.6.2.7 On 28 January 2022 at a formal attendance review meeting inappropriately discussed the Claimant’s grievance when this should have been dealt with separately;

4.6.2.8 In or around April 2022 failed to consider the Claimant for a remote OASYS Probation Officer assessor role at HMP Berwyn;

4.6.2.9 5 May 2022 not allow the Claimant’s Trade Union representative to attend an informal review meeting; WITHDRAWN AND DISMISSED

4.6.2.10 In May 2022, failed to act upon the Claimant’s Sick Leave Excusal request (remains open) resulting in the Claimant being placed at a financial disadvantage by losing 6 months full pay;

4.6.2.11 In or around May 2022 failed to investigate or consider the Claimant for a Youth Offending Team role in Flint;

4.6.2.12 In June 2022, Ms Conway did not share FARM minutes with the Claimant’s Trade Union Representative;

4.6.2.13 In June and August 2022, Ms Conway held FARMs with the Claimant when there was an active Sick Leave Excusal awaiting a decision by Ms Bowen;

4.6.2.14 On June 1st, 2022, Ms Bowen was the referring Manager on the Claimant’s Sick Leave Excusal to Occupational Health, which was reviewed 5th July 2022 by an Occupational Health Advisor, without speaking to the Claimant;

4.6.2.15 Between July-August 2022 Ms Bowen sent the Claimant emails stating she was not prepared to make a decision on the Claimant’s Sick Leave Excusal (submitted May 2022) without her consenting to a further Occupational Health Review. However, Ms Bowen had already made a decision on the Claimant’s Sick Leave Excusal in May 2022;

4.6.2.16 In August 2022, removed Claimant’s IT access for prolonged period of time causing her to miss the deadline for applying for a Treatment Manager Position within Interventions Team; WITHDRAWN AND DISMISSED

4.6.2.17 In August 2022, at a FARM failed to record the Claimant’s comments regarding her efforts to return to work (including contacting various senior management and suggesting reasonable adjustments) in the official minutes from the meeting;

4.6.2.18 In or around November 2022 failed to consider the Claimant for a PreSentence Report Writing role in Shrewsbury;

4.6.2.19 Failed to rectify the pay issue that the Respondent highlighted in April 2022 (and remains open);

4.6.2.20 On 20 June 2023 at a FARM, the Claimant requested to be considered for an alternative role vacancy in CORRE. The Claimant was then informed 13 July 2023, there were no vacancies;

4.6.2.21 In August 2023 the Claimant requested a copy of an email sent by Ms Conway to Ms Rennie and was informed the email specified was not held.

4.6.3 By doing so, did it subject the Claimant to detriment?

4.6.4 If so, was it because the Claimant did a protected act?

4.6.5 Was it because the Respondent believed the Claimant had done, or might do, a protected act? The Facts:

[5]The Respondent is a large employer with professional management, HR and legal support, and occupational Health advisors, operating with documented contracts, policies and procedures. Its management is process driven. In this case the Tribunal found that the Respondent’s managers were “hands on”, holding regular meetings and maintaining consistent communications with staff, following documented procedures, and with consistent reliance on the application of policies backed up by regular referrals to HR.

[6]The Claimant was, and remains, dissatisfied with how she was managed in her situation, however the Tribunal finds that the Respondent managed her appropriately and this is not an instance reflective of management being heavyhanded, being overlooked, omitted, or there was any disinterest on the part of management to the concerns and needs of the Claimant; management's evident concern for the Claimant was coupled with its concern for the provision of an effective service to its clients and the needs of its other staff.

[7]The Claimant is a skilled and experienced Probation Officer having commenced her career in 2000. Throughout her career she has worked in various aspects of her vocation. The Tribunal wish to note its appreciation of the value of this vocation and the Claimant’s conscientious application to it.

[8]The Claimant is dyslexic. As the point was emphasised, the Tribunal duly notes that dyslexia is a form of neurodivergence and ought not to be considered an illness. During the relevant period of employment, the Claimant also lived with symptoms of stenosis and the menopause. She had absences from work for illness, including stress. The Claimant is a disabled person; she declared this throughout her employment, and it has been known to the Respondent throughout the Claimant’s career by all her then line managers, and all others involved in her management chain.

[9]The effect of dyslexia on the Claimant is described in a report of 30 April 1998 (page 481 of the bundle to which or page references refer unless otherwise stated) prepared by K Lindley. The word “weaknesses” has been used, and it is not the wording of the Tribunal, however what was so termed include in relation to working memory, processing speed, and phonological awareness. The Claimant has been upfront and consistent throughout her career about these socalled “weaknesses”, (we assume so-called relative to neurotypical expectations, but this is not a word favoured by the Tribunal).

[10]The Tribunal adopts the chronology that has been agreed by the parties, and it will not therefore recite all the dates and events throughout the time under consideration, relying only on key events.

[11]The Claimant commenced employment at HMP Berwyn, Wrexham, on 30 October 2017, working 34 1/2 hours per week compressed into a four-day working week. Her contract of employment is at page 451. The contract includes sick pay provisions such that during a period of certified ill health an absent employee would receive up to 6 months full pay and six months half pay; the pay policy allows for accrual of those benefits (full or half pay) over time; in the 4th to 5th year of employment an employee would be entitled to five months full pay and in the 6th year to six months full pay, the maximum benefit. By May 2022 the Claimant was in the fifth year of her employment. During the relevant period of ill health absence, she was paid 5 months full pay before a reduction to 50% of pay in accordance with the pay policies and consistent with her contract.

[12]In 2019 the Respondent introduced a system called OMiC (Offender Management in Custody) with KPIs. The Offender Management unit, (OMU), in which the Claimant worked, moved to a large workspace which the Claimant says was colloquially referred to as “the hanger”, although this is not accepted by the Respondent’s management. We will refer to it as the hangar for convenience. The hangar was a large, busy, noisy open-plan workspace. When deployed to the hangar the Claimant would work to the side of the building or in smaller offices when they were available to her.

[13]During the years 2020 to 2021 COVID restrictions were in place which meant that the Respondent’s staff routinely worked from home (WFH). When restrictions were eased the Claimant split her time between WFH and the office. She found it beneficial an optimal for her to mix and match in this way at her convenience.

[14]In November 2021 the Respondent sought the return of its staff to the workplace in line with government policy and driven by the needs of the service. Offender Management in prisons and in the community required face to face involvement of the staff with offenders and it involved extensive teamwork on site. The Claimant’s role is a practical hands-on role and neither the role nor service could be optimally delivered remotely, not least with clients being in custody.

[15]On 10 November 2021 the Claimant’s line manager, Ms Conway wrote to the Claimant (page 100); she wished to discuss with her, the policy of returning to work in the office, her workload, her use of Time of in Lieu (TOIL); she made herself available to discuss matters with the Claimant and indicated a need to divide her time such that of her four day working week one day per week would be WFH plus any more occasional and exceptional time by agreement with the Senior Probation Officer. This is a managerially supportive e-mail.

[16]On 11 November 2021 (page 101) the Claimant expressed her gratitude for the informal arrangements that were in place in relation to workload which were accepted as being a reasonable adjustment for the benefit of the Claimant. The Claimant was also grateful that she had been accommodated in respect of leave. The Claimant however objected to the reduction in WFH, citing productivity benefits, environmental difficulties in relation to dyslexia as well as the shift in culture to online working which could be better accommodated, she thought, when WFH. The Claimant indicated that in her view she could deal with inquiries even when she was the designated duty officer, via e-mail. She made reference to an occupational health report of 2020 which recommended she be allowed work two days from home while she worked two days in the office.

[17]At various times the Claimant drew attention to her OH report of 2020 and a CAT or dyslexia report of 2008.

[18]Ms Conway referred the Claimant to OH, and met with her to discuss the situation in general.

[19]The Claimant was duty officer between the 6th and 9th of December of that year and she performed some of this role from home. The Respondent’s management was genuinely concerned that WFH impacted on her ability to perform the full range of duty work, including dealing with inquiries. Her absence from site, performing some of the role, led to some duplication of work on site. Ms Conway confirmed that it was not appropriate to carry out duty work from home. Because the Claimant had ill health symptoms at the time Ms Conway delegated duty cover to other probation officers. The reallocation of duty work to others caused some friction and difficulties, evident from emails in the hearing bundle. In one such e-mail the Claimant seems to have taken exception to an incoming e-mail that she received from a colleague about a situation that was being managed commenting “since when has ** been my senior probation officer?”

[20]On 9 December 2021 the Claimant sent a further e-mail to Ms Conway (p113 – 114). She described her ill health symptoms at the time. She said she was WFH that day and that she would do her best to cover duty work. She copied and pasted into this e-mail certain guidance. She said that she was then currently unable to fulfil duties without reasonable adjustments. She attached to the e-mail the 2020 OH report and 2008 dyslexia report with supportive recommendations. She requested the following adjustments:20.1 that she be allowed WFH whenever possible

20.2 when on site to have the use of a small office

20.3 to have a 20% reduction in caseload.

[21]The Tribunal notes that up until this point there had been no formal agreement as to reasonable adjustments but only recommendations and an informal agreement about WFH and leave provisions. The adjustments such as they were, were informal and this was satisfactory to both parties as the Claimant had confirmed on 11 November 2021.

[22]The Claimants e-mail of 9 December 2021 appears to the Tribunal to be odd, although we accept that it was sent by her to Ms Conway. The Tribunal accepted the evidence of Ms Conway that she did not recall seeing it. The e-mail does not complain of a breach of the Equality Act and cannot reasonably be read as such. It is an update on the Claimant’s situation, and it is a request for formal reasonable adjustments in a situation where she had been satisfied about the informal arrangements in place. It is not a protected act for the purposes of protection against Victimisation.

[23]The Respondent sought throughout this matter to address and meet, where possible, the Claimant’s reasonable requests. The Respondent’s management did not have a negative perception of the Claimant because of matters such as those raised in her e-mail of 9 December and neither did it subject her to detriments because of it. The Claimant perceived a shift in the management's attitude towards her, but the Tribunal finds that the Respondent remained supportive of the Claimant after 9 December 2021, as supportive as it had been prior to that date; there was no actual change in attitude by management to the Claimant, and no detrimental consequences of it.

[24]On 31 January 2022 a risk assessment was carried out (page 40). The claimed was concerned at the risk of stress and she made reference to the previous OH and dyslexia reports.

[25]The risk assessment led onto the preparation of a Workplace Adjustment Passport (page 41). In it the Claimant referred to her working memory and processing speed as well as phonological awareness citing the following as barriers:25.1 Location (the “hangar” which was large, open plan, busy and noisy).

25.2 Workload, and specifically OMIC, which required more time to complete its requirements.

25.3 learning and development, where the Claimant required additional time.

[26]The Claimant said that she could do the full range of her duties but, in relation to each of the barriers that she referred to, WFH was the optimal support for her.

[27]On 21 February 2022 Ms Conway sent to the Claimant proposed adjustments with a view to the Claimant’s return to work. She proposed:27.1 25% of working time, one day each week, WFH

27.2 To accommodate the above, office duty would be allocated on a daily rather than weekly basis.

27.3 the Claimant would be allowed use of a quiet space on site carrying out certain jobs, which otherwise she could do WFH;

27.4 50% of her time on site would be working with a specific workspace provision;

27.5 face to face support would be made available to her;

27.6 training materials would be shared with her prior to training events to give her time to prepare.

[28]The Claimant remained absent from work with stress until 3 August 2022.

[29]The Claimant was then redeployed to a Community Officer role based at Newtown, Powys on a temporary basis before the planned taking up of a new role in Wrexham delivering programmes to offenders.

[30]When working in Newtown, the Claimant was in a small, quiet office (relative to the “hangar”). She was not given a specific caseload. She was not required to operate OMIC. She was no longer subject to KPIs. The Claimant was still allowed WFH. The Respondent provided the Claimant with a specific chair because of her symptoms of stenosis for use by her when WFH. She was granted disability leave pending delivery of the chair to her home; the Claimant sought Sick Leave instead.

[31]At this time the Respondent’s aim was to phase the Claimant’s returned to work and to provide her with additional training to facilitate this. Meanwhile the Claimant was proactive in helping her colleagues at Newtown as and when required, and as and when she could.

[32]The Tribunal finds in terms of the Respondent’s policies that disability leave was appropriate in the circumstances described above, namely while reasonable adjustments were put in place, and in this case the provision of a chair to facilitate WFH. Disability leave is not intended for general ill-health absences from work. Disability leave is available under the Respondent’s policies for disability related treatment, assessment, appointments, and the provision of reasonable adjustments. The Claimant was not entitled to disability leave when certified as unfit to work through stress.

[33]When the Claimant was unfit to work through stress the Respondent managed her under its sickness absence policy, and it did so appropriately in accordance with policy. They responded actively and maintained the Claimant’s employment throughout her ill-health absences holding formal attendance review meetings (FARM). The Tribunal finds that the Respondent’s management did not seek the Claimant’s dismissal or otherwise termination of employment by her, and did not attempt to engineer it; the managers supported her continued employment.

[34]The Claimant undertook what was known as CORE and HORIZON training. Training materials were shared with her in advance of each training event. Before each event there was a considerable amount of material to read. The written units were provided to the Claimant on the 19 October in advance of an event on 2nd November and the course was practical involving preparation for role play. At the event participants were given time in the evening before the role play that was undertaken to allow additional time for preparation. The Claimant achieved 23 of 25 competencies; the two where she was adjudged as not ready involved skills and experience that in the Claimants case were a bit “rusty” (our terminology) in that it had been a long time since the Claimant had used those skills or had that experience. The Claimant did not achieve those two competencies because of her “rustiness” in the use of skills and the acquisition of experience, and she was not at a disadvantaged in any lack of preparation time pre-training. The Claimant was then given time in terms of a suggestion that she re-do the Horizon training when she was ready. The Claimant declined to do so.

[35]The Claimant returned from Newtown to Wrexham in November 2022 to work on the delivery of programmes, which were task and finish. She did not have a caseload to manage. She did not operate OMIC. She did not have KPI's. She was not required to work in the hangar. She was still permitted to WFH.

[36]The Claimant is clearly a motivated and conscientious, good, and effective Probation Officer. There were no significant performance issues in terms of the quality of her work. The Respondent appreciated the Claimant and wished to retain her in employment. Management supported her and we note that upon receipt of an OH report saying that the Claimant was unlikely to be considered a disabled person, the Respondent’s management treated her as if she was one nevertheless, in terms of providing support and adjustments.

[37]The Tribunal finds that there were elements of management that could fairly be criticised (e.g. delays, unclear or slow communication), and which could have fed the Claimant’s misperception that there had been a shift in attitude towards her. Overall, however we find that the Respondent was supportive of the Claimant; the managers did their best to accommodate her while ensuring efficient provision of a service and managing the needs not only of offenders but also colleagues. That said, the parties clearly reached an impasse with the Claimant requesting what she considered to be optimal working conditions for her (principally WFH) and the Respondent finding it difficult to placate the Claimant whilst best serving the needs of offenders and colleagues. The Tribunal finds that the Respondent did what it could to facilitate the Claimant, balancing competing needs and demands. The Respondent did not subject the Claimant to any detriment for the stance that she adopted. The Respondent’s management addressed working from home, workload, expectation in terms of KPI's, the use of various systems such as OMIC, and the working environment constructively and with a view to accommodating all concerned and specifically the Claimant. The Law:

[38]In delivering the oral Judgement we did not spend much time in explaining the applicable law given that the legal tests were broken down in the agreed list of issues, the format addressing the statutory tests based on authority, and Counsel had clearly and accurately made legal submissions with which the Claimant did not disagree significantly.

[39]There is statutory provision of time limits for the presentation of claims. Claims should be presented to the Tribunal within three months of the matters complained about or the last in a series of events. At very least a party must commence ACAS early conciliation within that time and this has the effect of stopping the clock temporarily. Discrimination and victimisation complaints that are presented outside the three-month time limit may benefit from the Tribunal’s exercise of discretion to extend time where it is deemed just and equitable to do so. In respect to the claim in relation to wages the Tribunal does not have such a wide discretion for extension of time; the test is a reasonably practicable test; a late claim may be accepted if it was not reasonably practicable for a Claimant to present it in time, provided a Claimant then presents within a reasonable time thereafter.

[40]Direct discrimination is where the person is treated less favourably than either a named or hypothetical comparator because of a protected characteristic such as disability. A hypothetical comparator must be somebody who in all material circumstances is comparable to the Claimant save in relation to the protected characteristic. To succeed with the claim there must be comparatively less favourable treatment than another has received or would receive, and the reason for the treatment must be that protected characteristic. Direct discrimination cannot be justified.

[41]A claim of discrimination arising from disability requires there to be something that arose from the disability relied upon, for example absence from work, where an employer has then treated an employee unfavourably because of that “something”, such as by dismissal. In such cases there is a defence of justification provided the employer’s treatment was a proportionate means of achieving a legitimate aim; the Tribunal's considerations in this regard are set out in the list of issues.

[42]The Claimant withdrew the claim of indirect discrimination, and it has been dismissed.

[43]Where the is something that an employer does at work, that it operates a provision, criterion, or practice, and that puts a disabled person at a substantial disadvantage when compared with others who do not share that disability, there is a statutory duty to make reasonable adjustments to remove the substantial disadvantage. That does not mean that a disabled Claimant can just make demands that must be met. The Tribunal will consider whether the provision, criterion, or practice was a proportionate means of achieving a legitimate aim as well as whether or not a disabled person was put at a substantial disadvantage by it in comparison to others; it will go on to consider whether something less discriminatory could have been done instead, balancing the needs of both parties.

[44]Employees are protected against Victimisation in circumstances where they have done what is referred to as a protected act. A protected act is a complaint of a breach of the Equality Act. It does not have to be worded in formal terms, but it must be evident that such matters are being raised. If there is found to have been a protected act, a Claimant is protected from detriment because of it. Detriment is unfavourable treatment, treatment that an employee would not reasonably be expected to find acceptable.

[45]The Burden of proof:45.1 The burden of proof provisions of the Equality Act 2010 are set out in s.136. If there are facts from which the Tribunal could decide, in the absence of any other explanation, that A contravened the provision concerned, the Tribunal must hold that the contravention occurred, save where A shows that A did not contravene the provision. This is referred to as a two stage test, facts being established at the first stage showing a potential for discrimination and then at the second stage a Respondent (A) showing, proving facts, to establish an innocent explanation for acts, omissions or words (or otherwise, such as where A establishes in fact that the alleged acts etc did not occur) and therefore that there was no contravention as alleged.

45.2 At the so-called first stage the Tribunal must find sufficient facts, which may be proved by either the Claimant or the Respondent, to pass any burden of showing there was no contravention of the provision to A, although any mere explanation from the Respondent (A) is to be ignored at that first stage. One would expect the Claimant to advance evidence to prove facts beyond merely making assertions of discrimination.

45.3 In discrimination cases there is often the obvious difficulty of positively proving that discrimination took place from available oral and documentary evidence. A Tribunal may, but is not obliged to, draw adverse inferences from established facts, and by that route find that there was contravention of a relevant provision. In this judgment if adverse inferences have been drawn from established facts this will be made clear; if it is not clear that adverse inferences have been drawn then, on consideration and for good reason, it was not deemed necessary to draw any. Application of law to facts:

[46]In this case the Tribunal found that a balance had to be struck between what the Claimant requested and required for her satisfaction and reasonable management needs in respect of managing it's team and providing a service in relation to offenders. The Tribunal finds that the Respondent did its best to find that balance, to accommodate the Claimant, and to support her, the team and the provision of the service. It could not fully accommodate the Claimant’s perceived optimal plan, but it did what it could to facilitate it. The Respondent did not subject the Claimant to a detriment for taking her stance. As is often the case, the difficulty facing the Claimant is one of causation, establishing that the Respondent acted unlawfully.

[47]Time Issues: The Claimant has alleged that there was a course of discriminatory and victimising conduct. Even if some of her claims would have been out of time the Tribunal extends time on the just and equitable basis. The Respondent did not submit on the point. We have found that there was no discriminatory or victimising conduct and therefore there was no course of conduct. Technically therefore claims in relation to events more than three months before commencement of early conciliation are likely to have been out of time. We have made positive findings in respect of each allegation in any event.

[48]Direct discrimination: the Claimant is not relaying on a named comparator. The Claimant has not proved facts from which the Tribunal could find that she was subjected to less favourable treatment than a hypothetical comparator. In any event the Respondent has satisfied the Tribunal that it did not act in a discriminatory manner. Its actions were not because of the Claimant’s disability. The Tribunal understands the Claimant’s complaint with regard, for example, to disability leave as opposed to sick leave excusal (SLE) but there were no facts from which we could infer less favourable treatment on the grounds of her disability. We acknowledge the Claimant feels that she was treated unfairly but that is not the same as discrimination on the grounds of disability. Her complaint is in the context of her disability. She was not treated less favourably than a hypothetical comparator because of her disability. The Claimant was treated at all times in accordance with policy and procedure which was not inherently discriminatory.

[49]Discrimination arising: the Claimant’s sickness absence was due to stress related to a disability. The Respondent’s business needs meant that some of a probation officer's work, including the work of the Claimant, had to be carried out in the hangar but the Respondent reasonably tried to mitigate that. It allowed the Claimant to work from home and to locate a desk in a quiet space with the allocation of available separate offices when on site. The Respondent sought OH advice to inform on the sick leave excusal -v- disability leave point. The reason that the Respondent sought advice was to be better informed and so that it could consider all the circumstances. This was not unfavourable treatment. Contrary to the Claimant’s allegation, the Respondent did reduce her workload post her ill health absence both at Wrexham and at Newtown. In none of the above situations did the Respondent act in the way it did because of the Claimant's absence.

[50]Reasonable adjustments:50.1 The Respondent operated the PCPS alleged by the Claimant.

50.2 The OMU occupied the hanger, but the Claimant was not required to work there exclusively, being allowed WFH, and mitigation was put in place as to where the claim’s desk was located when in the hangar including the use of available quiet office space;

50.3 OMIC was in operation in the OMU at Berwyn, with KPIs.

50.4 The sickness absence policy applied to people including the Claimant who were absent through certified ill health.

50.5 The hangar created a substantial disadvantage to the Claimant because of dyslexia, it being busy,, noisy and open planned;

50.6 OMIC and KPI's put the claim at a substantial disadvantage because of her dyslexia in that it's affected her working memory, processing speed, and phonological awareness.

50.7 Under the sickness absence policy pay was reduced from 100% to 50%, which is clearly a substantial disadvantage in economic terms.

50.8 The hanger is a physical feature, and it put the Claimant at substantial disadvantage when she was not WFH and when mitigation was not in place, such as use of a quiet room and sitting to the side of the hanger.

50.9 The Respondent was aware of the disadvantages to the Claimant posed by the PCPs. the Tribunal considered what steps the Respondent took and note for this purpose that the Claimant was not at work between December 2021 and 3 August 2022.

50.10 To address the above the Respondent:50.10.1 Moved the Claimant from the hangar and allowed her WFH. It was not reasonable to allow the Claimant WFH for four days a week owing to the nature of her work and the business need. At one point the Claimant had indicated that two out of four days would be reasonable for her, but the list of issues says “as required” which could involve the Claimant saying she wished to work 3 or 4 days from home. The Respondent reasonably required probation officers to be on hand on site at work because of the nature of its service and the needs of both the team and offenders. The role was not one that could be wholly remote. It would not have been reasonable to allow the Claimant to WFH as she required or requested at any particular time; it was reasonable to put in place a regular arrangement and given the various duties and pressures of work 25% WFH was a reasonable adjustment. The Claimant was also redeployed to a quieter office in Newtown.

50.10.2 provided the Claimant with office space free from distractions whilst in Wrexham, and the Respondent reasonably believed that the relocation or redeployment of the Claimant to Newtown answered the Claimant’s needs in full. The move to Newtown was a reasonable adjustment to address the issue with working in the hangar. In fact, the Respondent believed this to be the case until the Claimant clarified the matter during the course of the hearing in May 2024. The Claimant’s preferred solution to her problem was working from home as and when she felt that she required it. The Respondent did provide reasonable adjustments having considered all circumstances and factors.

50.10.3 reduced the Claimant’s workload. The Claimant was not required to work OMIC and had no KPIs. Her case management workload was then removed, and she was not required to do that either. Reasonable adjustments to remove these substantial disadvantages to the Claimant were put in place in relation to workload.

50.10.4 The Claimant was placed on disability leave rather than sick leave to facilitate setting up reasonable adjustments. The duty to make reasonable adjustments is to remove a substantial disadvantage at work, a barrier to participation. The duty to make a reasonable adjustment is not intended to mitigate loss of pay whilst one is absent from work and not performing work. The Respondent’s action in placing the Claimant on disability leave was in accordance with contract and non-contractual policies and procedures. It would not have been a reasonable adjustment to make an exception for the Claimant in relation to remuneration whilst absent from work.

[51]Victimisation: the Claimant did not do a protected act. Her e-mail to the 9th of December 2021 was a request and a proposal. The Respondent addressed it reasonably, even though the Claimant was. and remains. dissatisfied with the Respondent’s response. The Respondent did not then, and because of that request, subject the Claimant to any detriment but it managed her appropriately in accordance with her contract, policy, and procedure balancing her need with the reasonable needs of the business. We have not dealt in detail with every allegation of detriment because we found that the said email was not a protected act, and that the Respondent did not subject the Claimant to detriment because of its contents anyway. We have found that the Respondent was not aware of the email, or did not recall, particularly note, it. The reason the Respondent acted in the way it did in respect of the matters complained of by the Claimant under the heading of Victimisation is down to reasonable caution, management human failure and routine delay, policy or procedure, and the needs of the business, but not because of the contents of the email upon which the Claimant relies as her protected act. The Claimant, for example, decries management seeking OH advice on matters within its discretion; it is not detrimental for management to seek advice to better inform its decision making; having a note taker at a meeting (albeit a Manager) unnerved the Claimant but was not related to said email, being a practical solution to the need for a witness/note taker; Ms Conway was genuinely concerned about the application of the grievance procedure and its affect on her workload but did not treat the Claimant detrimentally (and again causation is problematic for the Claimant). It would be needlessly repetitious in the circumstances to go through each of the alleged detriments in this way given our finding in respect of the alleged Protected Act, where there were originally 21 alleged detriments. The Respondent’s management, for good or ill, was not because of any Protected Act, or belief that the Claimant had done one or would do one.

[52]Unauthorised deduction of wages claim: the Respondent paid the Claimant in accordance with contract and policy. In May 2022 the Claimant’s pay reduced to 50%. As this was in line with contract and policy it was not an unauthorised deduction.

[53]For the above reasons the Claimant’s claims fail and are dismissed. Approved by

[1]The Tribunal accepts jurisdiction for any otherwise late claims, exercising its discretion to extend time to the date of their presentation.

[2]The Claimant’s following claims fail and are dismissed: 2.1. Direct Disability Discrimination 2.2. Discrimination Arising from Disability 2.3. Failure to make Reasonable Adjustments 2.4. Victimisation 2.5. Unauthorised Deduction from Wages. Case Number: 1600873/2022