Mrs L Bartley v Ruthin School and others: 1601008/2022

EMPLOYMENT TRIBUNALS

Case No 1601008/2022

Between

Mrs L BartleyClaimant

Ruthin School and othersRespondent

Before

Employment Judge S Jenkins

In person for claimant

Mr D Bunting (instructed by Counsel) for respondent

Date 22 July 2024

JUDGMENT

[1]The Claimant was disabled at the relevant times, for the purposes of section 6 of the Equality Act 2010, by reference to conditions of; anxiety and panic attacks, functional neurological disorder, and transient visual losses.

[2]The Claimant’s complaints of; constructive unfair dismissal, direct disability discrimination, discrimination arising from disability, harassment related to disability, and victimisation; all fail. The Claimant’s claim is therefore dismissed in its entirety. JUDGMENT having been sent to the parties on 22 July 2024, and written reasons having been requested by the Claimant on 4 August 2024, in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the reasons are as follows:

REASONS

[1]The hearing was to deal with the Claimant’s complaints of; constructive unfair dismissal, direct disability discrimination, discrimination arising from disability, harassment related disability, and victimisation.

[2]We heard evidence from the Claimant and her husband, David Bartley, on her behalf, and from the Second and Third Respondents and from Ms Laura Hitchin, HR and Compliance Officer, on behalf of the Respondents.

[3]We considered the documents in a hearing bundle spanning 346 pages to which our attention was drawn, and we took into account the parties’ closing submissions.

Issues

[4]The issues to be determined at this final hearing had been set out by Employment Judge Ryan following a preliminary hearing on 18 May 2023 as follows1: 1. Time limits1.1 Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 30 April 2022 may not have been brought in time.

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

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

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

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

1.2.4.2 In any event, is it just and equitable in all the circumstances to extend time? 2. The alleged conduct complained of by the claimant (C): the claimant makes the following allegations, which are denied by R1-3, and they constitute the identified claims:

2.1 28 November 2021: following a hospital appointment that led to the fitting of hearing aids, C says that R 3 was dismissive of her and her disability, referring to the hearing aids as earplugs. This is a claim of harassment in relation to the protected characteristic of disability. 1 Sections 4 and 10, dealing with remedy, have not been included, as, in light of our decision on liability, they did not fall to be considered.

2.2 16 February 2022: C was required to attend a meeting with R 2 and R 3 to discuss her timekeeping and attendance. At the meeting R 3 said that C was “taking the Mickey” in respect of hospital appointments; C was threatened with disciplinary action. This is a claim of disability harassment, discrimination arising from disability, and also a breach of contract forming part of the constructive unfair dismissal claim. C’s timekeeping was affected by her responsibilities for S and so C claims associative discrimination as detailed below in relation to 16 February 2022.

2.3 28 April 2022: C asked to be allowed leave work early on 28 April and 29 April but R 3 told her that she needed permission from R 2. This was not the case for others. Permission was granted. This is a claim of victimisation and it forms part of the allegation of constructive unfair dismissal.

2.4 21 May 2022: R 3 said to C that he was “sick of” her and accused her, based on reports he had received, of sitting down for most the day and not working. He threatened her with further meetings with R 2. This is a claim of harassment in relation to the protected characteristic of disability, discrimination arising from disability, victimisation and it forms part of the allegations of constructive unfair dismissal. C’s timekeeping was affected by her responsibilities for S and so C claims associative discrimination as detailed below in relation to 21 May 2022.

2.5 23 May 2022: HR sent an email to see saying there were no vacancies, went for vacancies had been advertised on 20 May 2022. C had asked to be considered for other roles but was not; her hours were reduced during covid restrictions and not returned to pre-covid hours. This is a claim of harassment in relation to disability, direct disability discrimination and discrimination arising from disability.

2.6 C and her colleague , Jess, were required to complete Job Sheets. C alleges that they were used to “target” her in that her sheets were checked daily and criticised; she was accused of not completing tasks allocated to her and further tasks were added. C alleges that Jess was not subjected to this treatment. As far as C is aware Jess is not a disabled person. 3. Unfair dismissal

3.1 Was the Claimant dismissed?3.1.1 Did the Respondent do the following things:3.1.1.1 16 February 2022: claimant was required to attend a meeting with R 2 and R 3 to discuss timekeeping and attendance. At the meeting R 1 said that C was “taking the Mickey” in respect of hospital appointments; C was threatened with disciplinary action.

3.1.1.2 28 April 2022: C asked to be allowed leave work early on 28 April and 29 April 2022 but R 3 told her that she needed permission from R 2.

3.1.1.3 21 May 2022: R 3 said to C that he was “sick of” her and accused her, based on reports he had received, of sitting down for most the day and not working. He threatened her with further meetings with R 2.

3.1.1.4 C and her colleague , Jess, were required to complete Job Sheets. C alleges that they were used to “target” her in that her sheets were checked daily and criticised; she was accused of not completing tasks allocated to her and further tasks were added. C alleges that Jess was not subjected to this treatment.

3.1.2 Did that breach the implied term of trust and confidence? The Tribunal will need to decide:3.1.2.1 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

3.1.2.2 whether it had reasonable and proper cause for doing so.

3.1.3 Did the Claimant resign in response to the breach? The Tribunal will need to decide whether the breach of contract was a reason for the Claimant’s resignation.

3.1.4 Did the Claimant affirm the contract before resigning? The Tribunal will need to decide whether the Claimant’s words or actions showed that they chose to keep the contract alive even after the breach.

3.2 If the Claimant was dismissed, what was the reason or principal reason for dismissal - i.e. what was the reason for the breach of contract?

3.3 Was it a potentially fair reason?

3.4 Did the Respondent act reasonably in all the circumstances in treating it as a sufficient reason to dismiss the Claimant?

[5]Disability5.1 Did the Claimant AND did S have a disability as defined in section 6 of the Equality Act 2010 at the time of the events the claim is about? The Tribunal will decide:

5.2 Whether S is a disabled person (having a diagnosis of ASD) if contested by Rs.

5.3 Did C have the following contested physical or mental impairments (so not5.3.1 ): 5.3.1 Hearing loss – disability is conceded by the respondent but not knowledge of it at the material time.

5.3.2 Anxiety and panic attacks – not conceded by Rs

5.3.3 Functional neurological disorder – not conceded by Rs

5.3.4 Transient visual losses – not conceded by Rs

5.3.5 Transient ischaemic attack - not conceded by Rs?

5.4 Did it/they have a substantial adverse effect on her ability to carry out day-to-day activities? And likewise in relation to S.

5.5 If not, did the Claimant have medical treatment, including medication, or take other measures to treat or correct the impairment?

5.6 Would the impairment have had a substantial adverse effect on her ability to carry out day-to-day activities without the treatment or other measures? And likewise in relation to S.

5.7 Were the effects of the impairments long-term? The Tribunal will decide:5.7.1 did they last at least 12 months, or were they likely to last at least 12 months?

5.7.2 if not, were they likely to recur?

[6]Direct disability discrimination (Equality Act 2010 section 13)6.1 Did the Respondent do the following things:6.1.1 23 May 2022: HR sent an email to see saying there were no vacancies, when four vacancies had been advertised on

6.1.2 C and her colleague , Jess, were required to complete Job Sheets. C alleges that they were used to “target” her in that her sheets were checked daily and criticised; she was accused of not completing tasks allocated to her and further tasks were added. C alleges that Jess was not subjected to this treatment.

6.1.3 This claim is based on both C’s and S’s disability (i.e. also argued as Associative Discrimination).

6.2 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. The Claimant says she was treated worse than Jess Jones and a hypothetical comparator.

6.3 If so, was it because of disability?

6.4 Did the Respondent’s treatment amount to a detriment?

[7]Discrimination arising from disability (Equality Act 2010 section 15)7.1 Did the Respondent treat the Claimant unfavourably by:7.1.1 16 February 2022: C was required to attend a meeting with R 2 and R 3 to discuss her timekeeping and attendance. At the meeting R 3 said that C was “taking the Mickey” in respect of hospital appointments; C was threatened with disciplinary action.

7.1.2 21 May 2022: R 3 said to C that he was “sick of” her and accused her, based on reports he had received, of sitting down for most the day and not working. He threatened her with further meetings with R 2.

7.1.3 23 May 2022: HR sent an email to see saying there were no vacancies, went for vacancies had been advertised on

7.2 Did the following things arise in consequence of the Claimant’s and/or S’s (associative discrimination) disability: 7.2.1 Absence and issues with time-keeping, having to attend medical appointments for me and for/in respect of S. C says she was seen as a nuisance to the respondents because of her timekeeping and attendance and because she acted as advocate for S.

7.3 Was the unfavourable treatment because of any of those things?

7.4 Was the treatment a proportionate means of achieving a legitimate aim? The Respondent says that its aims were: 7.4.1 TBC in ET3.

7.5 The Tribunal will decide in particular:7.5.1 was the treatment an appropriate and reasonably necessary way to achieve those aims;

7.5.2 could something less discriminatory have been done instead;

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

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

[8]Harassment related to disability (Equality Act 2010 section 26)8.1 Did the Respondent do the following things:8.1.1 28 November 2021: following a hospital appointment that led to the fitting of hearing aids, C says that R 3 was dismissive of her and her disability, referring to the hearing aids as earplugs.

8.1.2 16 February 2022: C was required to attend a meeting with R 2 and R 3 to discuss her timekeeping and attendance. At the meeting R 3 said that C was “taking the Mickey” in respect of hospital appointments; C was threatened with disciplinary action.

8.1.3 21 May 2022: R 3 said to C that he was “sick of” her and accused her, based on reports he had received, of sitting down for most the day and not working. He threatened her with further meetings with R 2.

8.1.4 23 May 2022: HR sent an email to see saying there were no vacancies, went for vacancies had been advertised on

8.2 If so, was that unwanted conduct?

8.3 Did it relate to disability - of C and/or S?

8.4 Did the conduct have the purpose or effect of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant?

[9]Victimisation (Equality Act 2010 section 27)9.1 Did the Claimant do a protected act as follows:9.1.1 16 February 2022 I met with R2, R3 and Laura Hitchen, HR; after that meeting, C spoke to Laura Hitchen in the café and C said she felt she was being victimised, harassed and discriminated against.

9.1.2 After several meetings (monthly after 16 February 2022) Laura Hitchen would mention possible disciplinary action and C would say she felt discriminated against.

9.1.3 21 May C says she made the same points in writing in an email to HR. C may have sent another email to HR but does not know the date – date to be confirmed upon disclosure.

9.2 Did the Respondent believe that the Claimant had done or might do a protected act?

9.3 Did the Respondent do the following things: 9.3.1 28 April 2022: C asked to be allowed leave work early on 28 April and 29 April but R 3 told her that she needed permission from R 2.

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

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

9.6 Was it because the Respondent believed the Claimant had done, or might do, a protected act? 5. At the start of the hearing we discussed some minor adjustments to the list of issues as follows: 1. The date, set out at paragraph 1.1, as the latest date for events being within time was corrected to 9 April 2022. 2. It was noted that a claim of discrimination arising from disability can only be brought by reference to a claimant’s own disability, and not by association with another’s disability. Section 15(1) EqA notes that discrimination arises if A treats B unfavourably because of something arising in consequence of B’s disability. Therefore, the references to matters arising in consequence of the disability of one of the Claimant’s children, Child S, were deleted. The references in relation to the Claimant’s claims of direct discrimination and harassment to Child S’s disability could remain, as those claims are not confined to the particular claimant’s own disability. 3. It was noted that, at paragraph 2.4 of the List of Issues, Judge Ryan had referred to an alleged incident on 21 May 2022 as having given rise to claims of harassment, discrimination arising from disability, and victimisation as well as forming part of the Claimant’s constructive dismissal claim. However, that incident was not referenced as an act of detriment in paragraph 9.3 in relation to the victimisation claim. It was, therefore, added as an additional sub-paragraph 9.3.2. Law 6. The legal principles underpinning the issues we had to determine were as follows. Time Limits 7. With regard to time limits, Section 123 of the Equality Act 2010 (“EqA”) provides as follows: “123 Time limits (1) Subject to section 140B proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. … (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.” 8. With regard to conduct extending over a period, the Court of Appeal in Commissioner of Police of the Metropolis v Hendricks

[2003] ICR 530

, noted that the Tribunal must look at the substance of the complaints in question and determine whether they can be said to be part of one continuing act by the employer and thus linked to each other. 9. A course of conduct where individual acts are linked, either by reference to the application of a policy or practice or in another way, and where the last such connected act falls within time, will mean that all such acts will fall within time. The Employment Appeal Tribunal (“EAT”) recently confirmed however, in South Western Ambulance Service NHS Trust -v- King

[2020] IRLR 168

, that reliance is not to be placed on “some floating or overarching discriminatory state of affairs without that state of affairs being anchored by specific acts of discrimination occurring over time”.

Law

[10]With regard to the potential just and equitable extension of time, the Court of Appeal, in Robertson -v- Bexley Community Centre

[2003] IRLR 434

, noted that there is no presumption in favour of extending time in discrimination claims, and it is for the Claimant to convince the Tribunal that it is indeed just and equitable to extend time.

[11]The EAT in British Coal Corporation -v- Keeble

[1997] IRLR 336

, noted that the provisions of Section 33 of the Limitation Act 1980, which applies to civil claims, should also be applied in relation to Tribunal claims. That involves an assessment of the prejudice to each party and an assessment of all the circumstances of the case, which includes; the length of and reasons for the delay, the extent to which the cogency of evidence is likely to be affected, the extent to which the party sued has cooperated with the requests for information, the promptness with which the Claimant acted once they knew of the facts, and the steps taken by the Claimant to obtain advice. It is clear however that an assessment of all the circumstances is to be undertaken.

[12]Recent further guidance on this issue was provided by the Court of Appeal in Adedeji -v- University Hospitals Birmingham NHS Foundation Trust

[2021] EWCA Civ 23

, that the guidance provided in the Keeble case should not be treated as a checklist, as that would lead to a mechanistic approach to what is meant to be a very broad general discretion. The Court of Appeal guidance was that the best approach for a Tribunal, in considering the exercise of its discretion, is to assess all the factors in the particular case which it considers relevant to whether it is just and equitable to extend time, including, in particular, the length of, and the reasons for, the delay. Constructive Unfair Dismissal

[13]In a constructive unfair dismissal case such as this, the touchstone authority remains Western Excavating (ECC) Limited -v- Sharp

[1978] ICR 221

, which noted that three matters fall to be considered:(i) Was there a repudiatory breach of contract?

(ii) If so, did the Claimant resign in response to that breach and not for another reason?

(iii) If so, did the Claimant nevertheless affirm the contract, whether by delaying too long in resigning, or by words or actions which demonstrated that they chose to keep the contract alive?

[14]The principal breach in this case was asserted to be a breach of the implied term of mutual trust and confidence. Whilst the ability to pursue a constructive dismissal claim based on that implied term had been established by the Employment Appeal Tribunal as far back as 1981 in the case of Woods -v- WM Car Services (Peterborough) Limited

[1981] ICR 666

, it was expressly approved by the House of Lords in Malik -v- BCCI SA (in compulsory liquidation)

[1997] ICR 606

, where Lord Steyn confirmed that it imposed an obligation that the employer shall not, “without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee”.

[15]It has been clear, since Woods in 1981, that any breach of the implied term of mutual trust and confidence will be a repudiatory breach. However, as noted in Malik, the conduct has to be such that it is likely to “destroy or seriously damage” the relationship of trust and confidence.

[16]The prevailing law of constructive dismissal has been more recently summarised by the Court of Appeal in Omilaju -v- Waltham Forest London Borough Council

[2005] ICR 481

, where Dyson LJ explained it, at paragraph 14, as follows: “1. The test for constructive dismissal is whether the employer’s actions or conduct amounted to a repudiatory breach of the contract of employment: Western Excavating (ECC) Ltd v Sharp

[1978] 1 QB 761

. 2. It is an implied term of any 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 confidence and trust between employer and employee: see, for example, Malik v Bank of Credit and Commerce International SA

[1998] AC 20

, 34H—35D (Lord Nicholls) and 45C—46E (Lord Steyn). I shall refer to this as ‘the implied term of trust and confidence’. 3. Any breach of the implied term of trust and confidence will amount to a repudiation of the contract: see, for example, per Browne Wilkinson J in Woods v WM Car Services (Peterborough) Ltd

[1981] ICR 666

, 672A. The very essence of the breach of the implied term is that it is calculated or likely to destroy or seriously damage the relationship (emphasis added). 4. The test of whether there has been a breach of the implied term of trust and confidence is objective. As Lord Nicholls said in Malik, at p 35C, the conduct relied on as constituting the breach must “impinge on the relationship in the sense that, looked at objectively, it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer” (emphasis added). 5. A relatively minor act may be sufficient to entitle the employee to resign and leave his employment if it is the last straw in a series of incidents. It is well put at para DI [480] in Harvey on Industrial Relations and Employment Law: “[480] Many of the constructive dismissal cases which arise from the undermining of trust and confidence will involve the employee leaving in response to a course of conduct carried on over a period of time. The particular incident which causes the employee to leave may in itself be insufficient to justify his taking that action, but when viewed against a background of such incidents it may be considered sufficient by the courts to warrant their treating the resignation as a constructive dismissal. It may be the “last straw” which causes the employee to terminate a deteriorating relationship.””

[17]Dyson LJ continued at paragraph 15: “The last straw principle has been explained in a number of cases, perhaps most clearly in Lewis v Motorworld Garages Ltd

[1986] ICR 157

. Neill LJ said (p167C) that the repudiatory conduct may consist of a series of acts or incidents, some of them perhaps quite trivial, which cumulatively amount to a repudiatory breach of the implied term of trust and confidence. Glidewell LJ said at p169F: “(3) The breach of this implied obligation of trust and confidence may consist of a series of actions on the part of the employer which cumulatively amount to a breach of the term, though each individual incident may not do so. In particular in such a case the last action of the employer which leads to the employee leaving need not itself be a breach of contract; the question is, does the cumulative series of acts taken together amount to a breach of the implied term?” (See Woods v W.M. Car Services (Peterborough) Ltd.

[1981] ICR 666

.) This is the “last straw” situation.”

[18]With particular reference to the “last straw”, Dyson LJ went on to say, at paragraphs 19 and 20: “…A final straw, not itself a breach of contract, may result in a breach of the implied term of trust and confidence. The quality that the final straw must have is that it should be an act in a series whose cumulative effect is to amount to a breach of the implied term. I do not use the phrase “an act in a series” in a precise or technical sense. The act does not have to be of the same character as the earlier acts. Its essential quality is that, when taken in conjunction with the earlier acts on which the employee relies, it amounts to a breach of the implied term of trust and confidence. It must contribute something to that breach, although what it adds may be relatively insignificant.

[20]I see no need to characterise the final straw as “unreasonable” or “blameworthy” conduct. It may be true that an act which is the last in a series of acts which, taken together, amounts to a breach of the implied term of trust and confidence will usually be unreasonable and, perhaps, even blameworthy. But, viewed in isolation, the final straw may not always be unreasonable, still less blameworthy. Nor do I see any reason why it should be. The only question is whether the final straw is the last in a series of acts or incidents which cumulatively amount to a repudiation of the contract by the employer. The last straw must contribute, however slightly, to the breach of the implied term of trust and confidence. Some unreasonable behaviour may be so unrelated to the obligation of trust and confidence that it lacks the essential quality to which I have referred.” 19. In this case, the Claimant’s contention, as noted in his resignation letter, was that the Respondent’s failure to make reasonable adjustments for him was the final straw. 20. The approach to be taken in last straw cases was considered further by the Court of Appeal in Kaur -v- Leeds Teaching Hospitals NHS Trust

[2019] ICR 1

, where Underhill LJ stated, at paragraphs 45 to 46: “If the tribunal considers the employer’s conduct as a whole to have been repudiatory and the final act to have been part of that conduct (applying the Omilaju test), it should not normally matter whether it had crossed the Malik threshold at some earlier stage: even if it had, and the employee affirmed the contract by not resigning at that point, the effect of the final act is to revive his or her right to do so. “Fourthly, the “last straw” image may in some cases not be wholly apt. At the risk of labouring the obvious, the point made by the proverb is that the additional weight that renders the load too heavy may be quite small in itself. Although that point is valuable in the legal context, and is the particular point discussed in Omilaju, it will not arise in every cumulative breach case. There will in such a case always, by definition, be a final act which causes the employee to resign, but it will not necessarily be trivial: it may be a whole extra bale of straw. Indeed in some cases it may be heavy enough to break the camel’s back by itself (i.e. to constitute a repudiation in its own right), in which case the fact that there were previous breaches may be irrelevant, even though the claimant seeks to rely on them just in case (or for their prejudicial effect).”

[21]Underhill LJ then set out, at paragraph 55, a number of questions that the Tribunal should ask itself in a constructive dismissal claim: “I am concerned that the foregoing paragraphs may make the law in this area seem complicated and full of traps for the unwary. I do not believe that that is so. In the normal case where an employee claims to have been constructively dismissed it is sufficient for a tribunal to ask itself the following questions:(1) 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?

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

(3) If not, was that act (or omission) by itself a repudiatory breach of contract?

(4) If not, was it nevertheless a part (applying the approach explained in Omilaju) of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a (repudiatory) breach of the Malik term? (If it was, there is no need for any separate consideration of a possible previous affirmation, for the reason given at the end of para. 45 above.)

(5) Did the employee resign in response (or partly in response) to that breach? None of those questions is conceptually problematic though of course answering them in the circumstances of a particular case may not be easy.”

[22]With regard to the question of affirmation, Lord Denning MR, in Western Excavating (ECC) Ltd v Sharp, noted that the 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’.

[23]Subsequent decisions have made clear that the issue of affirmation is essentially one of conduct, not simply passage of time, but there comes a point when delay will indicate affirmation, even where the employee has protested against the alleged breach. Disability

[24]Section 6(1) EqA 2010 provides as follows: “(1) 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.”

[25]Section 6(6) EqA notes that Schedule 1 (disability: supplementary provision) has effect, and Paragraph 2 of Schedule 1 provides, in relation to long-term effects, that, “the effect of an impairment is long-term if-(a) It has lasted for at least 12 months,

(b) It is likely to last for at least 12 months, or

[26]Section 212(1) of the Act notes that substantial means “more than minor or trivial”.

[27]The question of what are “normal day-to-day activities” must be assessed by reference to the ordinary meaning of those words. The Government Guidance on matters to be taken into account in determining questions relating to the definition of disability notes that they are things that people do on a regular or daily basis, and can include work related activities. Direct Discrimination

[28]Section 13(1) EqA 2010 provides that: “A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”

[29]Section 23(1) then notes that there must be “no material difference between the circumstances relating to each case” when undertaking the comparison.

[30]The Court of Appeal summarised the approach to be taken in relation to section 13, and in particular the required degree of causation arising from the words, “because of”, in Chief Constable of Greater Manchester v Bailey

[2017] EWCA Civ 425

, and stated, at paragraph 12: “Both sections use the term "because"/"because of". This replaces the terminology of the predecessor legislation, which referred to the "grounds" or "reason" for the act complained of. It is well-established that there is no change in the meaning, and it remains common to refer to the underlying issue as the "reason why" issue. In a case of the present kind establishing the reason why the act complained of was done requires an examination of what Lord Nicholls in his seminal speech in Nagarajan v London Regional Transport

[1999] UKHL 36

[2000] 1 AC 501

, referred to as "the mental processes" of the putative discriminator (see at p. 511 A-B). Other authorities use the term "motivation" (while cautioning that this is not necessarily the same as "motive"). It is also well-established that an act will be done "because of" a protected characteristic, or "because" the claimant has done a protected act, as long as that had a significant influence on the outcome: see, again, Nagarajan, at p. 513B.” Discrimination arising from disability

[31]Section 15(1) of the EqA, which is headed 'Discrimination arising from disability', provides that, “A person(a) (A) discriminates against a disabled person

(b) (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.” 25. In Pnaiser v NHS England and anor

[2016] IRLR 170

, the EAT summarised the proper approach to establishing causation under S.15. First, the tribunal must identify whether the claimant was treated unfavourably and by whom. It must then determine what caused that treatment. 26. With regard to the justification of any unfavourable treatment that may be considered to have arisen we noted that the EAT provided guidance, in the second case of Department for Work and Pensions -v- Boyers

[2022] IRLR 741

, at para. 22: “When assessing whether unfavourable treatment can be justified as a proportionate means of achieving a legitimate aim, the discriminatory effect of the treatment must be balanced against the reasonable needs of the employer. The treatment must be appropriate and reasonably necessary to achieving the aim. The more serious the impact, the more cogent must be the justification for it. It is for the ET to undertake this task; it must weigh the reasonable needs of the employer against the discriminatory effect of the treatment and make its own assessment of whether the former outweigh the latter.” Harassment 27. Section 26 EqA notes that: “(1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. … “(4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case;

(c) whether it is reasonable for the conduct to have that effect.” 28. In assessing whether that had taken place in this case, we would first have to assess whether the matters asserted had taken place, before moving to consider whether, if so, they amounted to “unwanted conduct”, and whether they related to disability. If so, we would then have to assess whether the matters had the purpose or effect of violating the Claimant’s dignity etc. 29. In that regard, Underhill LJ had, in the case of Pemberton -v- Inwood

[2018] ICR 1291

, at para.88, provided guidance on the subjective and objective elements of that test as follows: “In order to decide whether any conduct falling within sub-paragraph (1)(a) has either of the proscribed effects under sub-paragraph (1)(b), a tribunal must consider both (by reason of sub-section (4)(a)) whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) and (by reason of sub-section (4)(c)) whether it was reasonable for the conduct to be regarded as having that effect (the objective question). It must also, of course, take into account all the other circumstances — sub-section (4)(b). The relevance of the subjective question is that if the claimant does not perceive their dignity to have been violated, or an adverse environment created, then the conduct should not be found to have had that effect. The relevance of the objective question is that if it was not reasonable for the conduct to be regarded as violating the claimant’s dignity or creating an adverse environment for him or her, then it should not be found to have done so.” Victimisation 30. Section 27(1) EqA provides as follows: "(1) A person (A) victimises another person (B) if A subjects B to a detriment because - B does a protected act,…” 31. Section 27)2) then notes that a protected act includes: “(c) doing any other thing for the purposes of or in connection with this Act,

(d) making an allegation (whether or not express) that A or another person has contravened this Act.”

[32]The test of causation in a victimisation complaint ("because") is the same as that in relation direct discrimination under section 13 ("because of"). It is whether the relevant decision was materially influenced by the doing of a protected act. This is not a 'but for' test; it is a subjective test. The focus is on the 'reason why' the alleged discriminator acted as he did. A similar approach to that taken in direct disability cases, as noted in the Bailey case above, is required. Findings General observations 32. We set out below our findings of fact, relevant to the issues we had to determine, which we reached on the balance of probability where there was any dispute. Before noting them, however, we made some general observations about the reliability of memories of past events, both generally and in respect of this case.

Findings

[33]Leggatt J, as he then was, in the commercial case of Gestmin SGPS SA v Credit Suisse UK

[2013] EWHC 3560

, warned that memory is especially unreliable when it comes to recalling past beliefs, as memories of past beliefs are revised to make them more consistent with present beliefs. The Judge noted that the process of litigation itself subjects the memories of witnesses to powerful biases, where the nature of litigation is such that witnesses often have a stake in a particular version of events.

[34]The outcome of the Judge’s observations was that he felt that the best approach to adopt was to place little, if any, reliance on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and from known or probable facts.

[35]In this case there were several fundamentally disputed events, and we therefore focused on contemporaneous records to corroborate a particular party’s versions of events where they provided an additional source of evidence as to what happened. Conversely, in some circumstances, the lack of reference to particular matters suggested that a subsequent reference to it may have been misplaced.

[36]In this case in particular, we felt that the Claimant, whilst clearly advancing matters that she herself felt to be true, was someone who had a clear sense of grievance at the way events in the workplace had transpired. That, we felt, led to her viewing matters through a prism of unfairness, and led to her concluding that she had been treated unfairly, and indeed discriminated against, when, in our view, there was little to suggest objectively that that had been the case. We also felt that some of the evidence adduced on behalf of the Respondents had, to a degree, been framed by reference to the case subsequently advanced by the Claimant and the way the Respondents defended it, but there were fewer areas where we felt that recollections had been influenced in that way.

Background

[37]The First Respondent is a private day and boarding school, based in North Wales. The Second Respondent was, at all relevant times, the School’s Bursar, and the Third Respondent was, and remains, its Catering Manager.

[38]The Claimant commenced employment for the First Respondent, as a domestic assistant, in January 2019. At all times her role was to clean the School’s canteen, which was open to staff and pupils throughout the day. Whilst that involved some elements of specific cleaning at regular intervals, much of the role involved continuous cleaning throughout the shift, e.g. wiping down tables after use, and cleaning floors whenever a spillage occurred.

[39]In October 2020, the School altered the structure of its canteen cleaning, moving to utilise two domestic assistants undertaking the cleaning on a three day on, three day off basis. That led to the Claimant working three days each week, with a shift on each day of 9¼ hours, exclusive of breaks, making a total of 27¾ hours each week. At that stage the Claimant’s hours were 9.00 am to 6.45 pm, with an unpaid half hour break.

[40]Following incidents in 2018, the Claimant’s health began to deteriorate. By November 2021 she had been diagnosed as suffering 50% hearing loss in both ears, and started to wear hearing aids. As she has long hair, often worn down, the aids were not generally visible.

[41]Also, following the incidents in 2018, the Claimant began to suffer periods of limb weakness and chronic pain, leading to a diagnosis of functional neurological disorder in July 2022. She also suffered transient visual losses, which began in November 2021, and suffered symptoms of transient ischaemic attacks from 2018 onwards. She has also suffered from anxiety and panic attacks following a tragic personal event in 2018. As noted in the list of issues, the Respondent accepted that the Claimant was disabled at the relevant times by reference to her hearing loss, but not by reference to the other conditions.

[42]Some of the Claimant’s children attended the School, taking advantage of the fee discount available to staff, and other bursaries. One in particular, Child S, was diagnosed with Autism Spectrum Disorder and was withdrawn from the School in November 2021. As noted in the list of issues, several of the Claimant’s complaints of discrimination were brought by reference to her association with Child S, as well as by reference to her own disabilities. The Respondent, prior to this hearing, had accepted that Child S was disabled by reference to Autism Spectrum Disorder. The events complained of

[43]The Claimant raised complaints arising from six events noted in paragraph 2 of the List of Issues. Our focus in terms of fact finding was therefore, on those events, but we also made some additional relevant findings as we went through.

[44]The first event took place on 28 November 2021, the day before the Claimant had been prescribed hearing aids and had started to wear them. The Claimant described the third Respondent on 28 November 2021, as having been dismissive of her, and as having asserted that he had referred to her hearing aids as ‘ear plugs’.

[45]In her witness statement, the Claimant noted that, some time around the end of November 2021, she informed her manager, i.e. the Third Respondent, about her hearing loss, and the fact that she now wore hearing aids. She commented that she remembered feeling that the Third Respondent perhaps did not believe her, noting that it upset her somewhat, but that she tried to brush it off and made a quick exit to get on with her work.

[46]The Claimant made no reference in her witness statement to the “ear plugs” comment, nor did she make any further reference to this incident at the time, or subsequently, in any internal processes. The incident was also not referred to in the Claimant’s initial claim form, and was raised for the first time in further particulars of the Claimant’s claims, provided by her on 24 April 2023, following a direction by Regional Employment Judge Davies at an earlier preliminary hearing on 20 March 2023.

[47]The Third Respondent, in his witness statement, noted that he did not recall having any such conversation with the Claimant, and that he had not become aware of the Claimant’s hearing issues prior to her completion of a medical questionnaire on 29 March 2022. He further noted that if he had used the word ‘ear plugs’, that had been an honest mistake, and that if the Claimant had approached him about the issue he would have been supportive and offered additional help, and that he would never have been dismissive about any health condition.

[48]On balance, we concluded that a discussion about the Claimant’s hearing loss and her hearing aids did take place on 28 November 2021. The Claimant had only just started wearing them, and we considered it likely that it would then have been a point of discussion. However, we did not consider the Third Respondent would have been dismissive of the Claimant’s hearing condition. The evidence within the bundle of several text exchanges between the Claimant and the Third Respondent around her health and absences suggested that the Third Respondent was a very supportive manager, and we doubted that he would then have been dismissive of her hearing issues.

[49]Similarly, we did not consider that the Third Respondent referred to the Claimant’s hearing aids as ‘ear plugs’, but, even if we had, we considered that it would have been a simple slip of the tongue, to which the Claimant raised no objection or concern for some 17 months and then only when directed to provide further information by the Tribunal.

[50]In early 2022, concerns started to arise about the Claimant’s timekeeping and performance. As we have noted, her hours were meant to be 9.00am to 6.45pm, but she was consistently arriving some ten to fifteen minutes late. As her line manager, the Third Respondent indicated that that, in itself, was not a significant issue, provided the Claimant worked her 9¼ hour shift i.e. by working beyond 6.45 pm, but that she regularly did not do that.

[51]The Third Respondent discussed his concerns with his line manager, the Second Respondent, and with Ms Hitchin from an HR perspective, and it was decided to hold an informal meeting with the Claimant to discuss the concerns.

[52]That was done without prior notice, and with Ms Hitchin simply notifying the Claimant on the day that she was required to attend a meeting with the Third Respondent, the Second Respondent and herself, and, when asked by the Claimant, Ms Hitchin confirmed that the meeting was to be about the Claimant’s timekeeping and attendance.

[53]The Claimant alleged that, in the meeting which took place on 16 February 2022, the Second Respondent had said that the Claimant was ‘taking the mickey’ in relation to hospital appointments, and that she had been threatened with disciplinary action, and she confirmed that in her witness statement. In her oral evidence, the Claimant also commented that she had raised her health issues as a reason for her lateness.

[54]The Respondents and all the Respondents’ witnesses confirmed the discussion had referenced the possibility of disciplinary action being undertaken if matters did not improve, but not as a threat, and denied the ‘taking the mickey’ comment.

[55]We noted that a contemporaneous file note of the meeting had been taken by Mi Hitchin. In that, she noted that it had been confirmed that the meeting was to discuss the Claimant’s timekeeping and disappointment over the standards of her cleaning on one day of the week before. It was noted that the Claimant was asked why she was late each day, and that she had replied that it was due to child care issues and the need to take one of her children to school each morning. Whilst no note of the particular person responding was made, we concluded it was the Second Respondent, the response was that the Claimant’s hours could be adjusted to work around child care as long as the hours were completed and the work done.

[56]We noted that in the hearing bundle was an attendance record report covering the five or so week period up to 16 February 2022, which we presumed to have been used for the purposes of the discussion with the Claimant. With regard to the seven days the Claimant had worked in February, we noted that, apart from one morning when she started at 7.46am, the earliest she clocked in was 9.12am. We also noted that on only one of those days did her clocking out time approximately make up for the time lost at the start of the day.

[57]In our view, the contemporaneous record made by Ms Hitchin was reliable, and showed that the meeting was to discuss the Claimant’s timekeeping and performance, with the Claimant raising only the point that her lateness arose from her need to take her child to school and not raising any health issues.

[58]We also concluded that, whilst reference to possible disciplinary action was made, that was not done as a particular threat. Had it been meant in that manner we anticipated that it would have been followed up in writing. We also did not conclude that the ‘taking the mickey’ comment had been made. The record of discussion made no reference to the Claimant’s medical appointments, whether for herself or any of her children, and the Claimant made no reference to the comment until raising a grievance on 13 July 2022, when she gave notice of resignation. Ultimately, we did not consider that the meeting on 16 February 2022 involved anything other than appropriate management action to address concerns about the Claimant’s attendance and performance, which genuinely existed.

[59]The Claimant contended, whilst being cross-examined, that she met Ms Hitchin alone following the meeting, and that she raised concerns with her about being discriminated against. She also contended that she had raised similar concerns on subsequent occasions with Ms Hitchin. However, she made no reference to any such matters in her witness statement, and Ms Hitchin denied that anything other than general discussions had taken place. On balance, we were not satisfied that any such discussion, raising concerns about discriminatory treatment, had taken place.

[60]Following the meeting, we presumed, probably some time in March 2022, although it was not clear precisely when, job sheets were put in place to direct what the Claimant, and her colleague working the other days, needed to do, and to enable the two of them to record the work, by ticking or initialling the work that had been done. We did observe however, that not all the entries were capable of being effectively recorded in that manner, as they involved ongoing, repeated activity, e.g. the mopping of floors.

[61]The Claimant contended that the job sheets were used to target her, but we noted that they applied to the Claimant and to her colleague equally, and that they served a useful purpose for the Claimant, following the concerns over performance raised in the 16 February 2022 meeting, by making expressly clear the tasks she had to undertake, and by enabling her to record that they had been completed. In any event, whilst there was evidence in the bundle of crosses being marked against the Claimant’s initials on one particular day, which potentially suggested dissatisfaction with her performance, the Claimant herself accepted that she had not subsequently been spoken to about any cleaning deficiencies. We did not see therefore, how the job sheets could have said to have been used to “target” the Claimant.

[62]A further meeting took place between the Claimant and the Second and Third Respondents on 29 March 2022, to discuss the concerns the timekeeping concern again, following which it was agreed the Claimant’s hours would change to 9.15am to 7.00pm. No notes of the meeting were before us, but the Claimant’s health must have been discussed during it, as she was asked to complete a medical questionnaire, which she did on that day. In that, the only condition referenced by the Claimant was a hearing defect, and she noted that she wore hearing aids.

[63]Following that, an occupational health review was arranged for 16 May 2022, and the report produced following that noted the Claimant’s hearing loss, which had been corrected by hearing aids, and that the Claimant reported no difficulties with her hearing when wearing those aids. The adviser also noted that the Claimant had recently injured her leg and had been referred for vascular tests. They noted that there did not appear to be any medical condition that was likely to be causing performance or attendance concerns.

[64]The next incident the Claimant complained about occurred on 28 April 2022. There was no material difference between the parties about what happened, although both sides interpreted the event differently. On that day, the Claimant was in work, but the Third Respondent was not. In the afternoon, the Claimant was informed by her child’s school that there was no room for her child in the after-school club that day or the day after, beyond 4.30pm, such that she would need to finish at 4.00pm in order to pick the child up. The Claimant then messaged the Third Respondent at 1.34pm, asking if it was ok for her to finish at 4.00pm that day and the day after to pick her daughter up. She noted that she would either make the hours back up, or did not mind them being deducted. The Third Respondent replied saying the request needed to be authorised by the Bursar i.e. the Second Respondent, who should be there until 3.00pm, and the Claimant replied “Ok. I’ll pop over to see him in a minute”.

[65]The Claimant could not find the Second Respondent, and instead sent an email to Ms Hitchin, repeating the request she made to the Third Respondent, noting that he had said that she needed to ask for authorisation from the Second Respondent. Ms Hitchin then checked with the Second Respondent, and emailed the Claimant to confirm that there was no problem that day with her leaving early and the hours would be deducted from her following month’s wages. Ms Hitchin then asked the Claimant to go and see her at 2.30pm the following day before she left. In the event the Claimant did not go to see Ms Hitchin on 29 April, but left early to pick her child up from school on both days.

[66]The Claimant contended that the direction that she seek permission to leave early from the Second Respondent was not something that others were required to do. However, we noted that that direction only arose in circumstances where the Third Respondent, the Claimant’s line manager, was not in work, and we considered that that was a reasonable managerial direction in the circumstances. The Third Respondent was not present to be able to understand whether there were any issues which might impact on the Claimant’s request, and in directing the Claimant to make her request to his line manager, the Second Respondent, we felt a reasonable step was taken.

[67]No evidence was put before us as to whether anyone else had been directed in a similar manner, but that could simply have been because no other similar requests have been made when the Third Respondent was not in work. We saw nothing to suggest that the Claimant had been singled out in any way.

[68]The Claimant then complained about an incident on 21 May 2022. The Claimant had been in work throughout the day, and had observed two colleagues, two school students who had part time jobs in the canteen, sitting together in the canteen for some five to six hours around their laptops. When the Third Respondent arrived in the late afternoon or early evening to start his shift, the Claimant complained to him about the two colleagues who, in her view, had not been working when they should have been. The Third Respondent replied that the two individuals had not been due to work, and had stayed at the School to revise for their own exams between a shift in the morning and a second shift due to be worked in the evening, rather than return to their homes. The Third Respondent also reported that the two colleagues had, in fact, told him that the Claimant had been sat down a lot during her shift.

[69]The Claimant alleged that during this discussion the Third Respondent had said that he was “sick of her”, and accused her of sitting down for most of the day and not working. She further alleged that the Third Respondent had threatened her with further meetings with the Second Respondent. The Third Respondent denied using the phrase “sick of her”, and denied that he had threatened the Claimant with further meetings with the Second Respondent.

[70]The Claimant had, soon after her return home on the evening of 21 May 2022, sent an email to Ms Hitchin, in which she recorded her exchange with the Third Respondent. She referenced that he had told her that the two colleagues had told him that she had been sat down a lot, which she denied. She went on to say that she felt like she was being bullied out of her job, and that she was seriously considering handing in her notice as it was making her feel really low and stressed. In the email, written, we presumed, no more than two hours after the exchange, the Claimant made no reference to the Third Respondent having said he was “sick of her”, or to the Third Respondent having threatened her with further meetings with the Second Respondent, and, on balance, we did not consider that those comments had been made.

[71]The Claimant had started her email to Ms Hitchin by saying that she would like to request a move. Ms Hitchin confirmed in her evidence, on which she was not materially challenged by the Claimant, and which we therefore accepted, that she had subsequently met the Claimant to discuss that email, and that the focus in that discussion had been on a possible move to the general school cleaning team. Ms Hitchin then replied to the Claimant’s email on 23 May 2022, noting that, unfortunately, there was no alternative employment in any other team at the School, and noting that they would discuss the Claimant’s email further on her return (the Claimant had, by that stage, gone on annual leave, and was not due to return until 8 June 2022), and would look to resolve issues within the Claimant’s current role.

[72]Just prior to that exchange however, on 20 May 2022, an email had been sent to all staff, noting four vacancies in September 2022. Whilst some of those were teaching roles for which the Claimant was clearly not qualified, others involved assisting with boarding pupils for which no qualifications were needed. Ms Hitchin confirmed in her evidence, and we were satisfied that she did so genuinely, that her email had been guided by her discussion with the Claimant around other cleaning roles, and that when she referenced alternative employment she was referring to cleaning roles having checked with the leader of the general cleaning team who had confirmed that there were no vacancies. The Claimant did not respond further to Ms Hitchin’s email, and did not apply for the boarding roles which the 20 May 2022 email had indicated should be done by 6 June 2022.

[73]The Claimant did not return to the School following her annual leave, and in fact never returned. She submitted Fit Notes, initially one on 7 June 2022 for two weeks due to “visual changes”, then from 21 June 2022 to 5 July 2022, due to “work related stress”, and then from 6 July 2022 to 3 August 2022 due to “stress at work”.

[74]On 8 June 2022 the Second Respondent wrote to the Claimant in relation to the occupational health assessment. He noted that, although the occupational health report had identified no issues, he had carried out a risk assessment, and had identified that the Claimant should be linked with a work buddy, who would ensure that the Claimant did not miss things, e.g. fire alarms, when working.

[75]The Second Respondent also noted that performance management arrangements would be put in place to ensure that the Claimant was fully supported in performing her tasks as expected.

[76]On 13 July 2022, the Claimant emailed Ms Hitchin. In that she referenced her concerns about the Second Respondent’s comments at the meeting on 16 February 2022 which subsequently formed part of her claim, referring to feeling that the Second Respondent had discriminated against her. She also repeated her comments from her email of 21 May regarding her discussion with the Third Respondent on that day. She noted that, despite requesting a move and noting that there were other roles, the boarding roles, Ms Hitchin had told her that there was nothing else in any other department. She commented that felt forced to either remain in her current role or to seek employment elsewhere. She concluded by saying that she felt that she was being constructively dismissed, and had no other option than to serve four weeks’ notice, expiring on 9 August 2022.

[77]The Claimant confirmed, in her witness statement, that she had, in fact, already started work by then, having started work as a care assistant in a nearby residential home on 1 July 2022.

[78]The Claimant’s email of 13 July 2022 was considered by the First Respondent as a grievance, and was investigated by the School’s Assistant Bursar. She met the Claimant by video on 8 August 2022, the day before her employment ended, and concluded that the grievance could not be substantiated. The Claimant’s employment then ended on 9 August 2022.

Conclusions

[79]Taking into account our findings of fact and the applicable legal principles, our conclusions on the issues we had to determine are set out below. Disability

[80]We were satisfied that the test for disability set out in section 6 of the Equality Act, i.e. that there is a physical or mental impairment having a substantial long term adverse effect on day to day activities, was made out, in relation to the Claimant’s conditions of; anxiety and panic attacks, functional neurological disorder, and transient visual losses, in addition to the accepted disability of hearing loss. Those conditions either had lasted for at least twelve months by May 2022 or, in the case of transient visual losses which had started in November 2021, were likely to last for twelve months at that time. In that regard, we noted that the Claimant’s first Fit Note, in June 2022, referred to “visual changes”. All those conditions impacted on the Claimant’s ability to undertake day-to-day activities to a more than minor or trivial degree, as noted by her in her impact statement in the hearing bundle, on which she was not materially challenged.

[81]We were not however, satisfied that the Claimant was disabled by reference to transient ischaemic attacks. In her impact statement, she noted that she suffered with a range of neurological symptoms, as listed for her other conditions. However, the other medical documentation within the bundle appeared only to refer to the possibility of transient ischaemic attacks having taken place in the past. Ultimately, we were not satisfied that any transient ischaemic attacks the Claimant may have experienced amounted to an impairment which had a substantial long-term effect on her ability to carry out day-to-day activities. Constructive unfair dismissal

[82]As we have noted in our findings of fact we were not satisfied that any of the incidents complained of by the Claimant, as noted in paragraph 3.1.1 of the List of Issues, amounted to breaches of the implied term of trust and confidence. Whilst there was reference in the meeting on 16 February 2022 to a possibility of disciplinary action if improvements were not made, that was not, in our view, a threat, and was a reasonable matter to point out in the circumstances.

[83]Similarly, the direction that the Claimant should speak to the Second Respondent about her request to leave early on 28 April 2022, in the absence of the Third Respondent, was, we felt, a perfectly reasonable one in the circumstances. We also noted that the Claimant accepted that at no time was she ever refused a request for absence, regardless of the reason.

[84]With reference to the meeting on 21 May 2022, we were not satisfied that any threat was made about further meetings with the Second Respondent, or that the Third Respondent had said that he was sick of the Claimant.

[85]Finally, we did not consider that the institution of job sheets involved any element of targeting.

[86]We noted that the Claimant contended that the exchange with the Third Respondent on 21 May 2022 amounted to the final straw which, on top of the earlier matters, triggered her resignation. However, we did not consider that any of the matters complained of, whether individually or cumulatively, amounted to anything which was calculated or likely to destroy or seriously damage the relationship of trust and confidence between the Claimant and the First Respondent. Direct disability discrimination

[87]We were not satisfied that any of the matters set out at paragraph 6.1 of the List of Issues involved less favourable treatment because of disability. We have already commented on the introduction of job plans in relation to the constructive dismissal complaint, and our conclusions there apply to this complaint. With regard to the email sent by Ms Hitchin to the Claimant on 23 May 2022, saying that there were no vacancies, when in fact four had been advertised on 20 May 2022, we noted that that was factually the case. However, we noted that Ms Hitchin’s email had been predicated upon her discussion with the Claimant in which the focus had been on cleaning vacancies.

[88]However, regardless of that, we saw nothing to suggest that Ms Hitchin had drafted the email in the way that she did because of the Claimant’s disability, or because of Child S’s disability. Even therefore, if we had considered that the sending of the email was less favourable treatment, we would still not have considered that it amounted to direct discrimination. Discrimination arising from disability

[89]We have addressed our conclusions in relation to all the alleged acts of unfavourable treatment set out in paragraph 7.1 of the List of Issues in our findings of fact. To the extent that any of the allegations advanced were made out in fact, we did not consider that they involved unfavourable treatment.

[90]Furthermore, to the extent that any such act may have involved unfavourable treatment, and we had in mind the possibility that the reference to the possibility of disciplinary action could potentially be viewed as such, we did not consider that it related to anything arising from disability, bearing in mind that the reason advanced at the time by the Claimant for her lateness was her need to take her child to school. We would have considered, in any event, that such a comment would have been a proportionate means of achieving the legitimate aim of managing the work undertaken by the First Respondent’s employees. Harassment related to disability

[91]We have noted our conclusions in relation to the alleged acts of unwanted conduct set out at paragraph 8.1 of the List of Issues in our findings of fact, Again, we did not consider that the material allegations were made out in fact or were made out in fact, or, where made out, that they involved unwanted conduct.

[92]To the extent that any did involve unwanted conduct, and we have in mind again the possible conclusion that the reference to the possibility that disciplinary action could arise if the Claimant’s attendance and performance did not improve could be viewed in that manner, we did not consider that it could be said that it was related to the Claimant’s disability, or that it could be reasonably said that it had the effect of violating the Claimant’s dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for her. As we noted in our findings of fact, we considered that the reference to the possibility of disciplinary action if improvements were not made was an entirely reasonable one in the circumstances. Victimisation

[93]We were not satisfied that the Claimant had done a protected act. There was no evidence that the Claimant had raised any concern that discrimination had occurred in any discussion with Ms Hitchin, and, whilst the Claimant made reference to feeling bullied in her email of 21 May 2022 to Ms Hitchin, she did not connect that to any disability, or even to her health generally, such that it could not be considered to be a protected act for the purposes of section 27 EqA.

[94]Regardless of that, the email of 21 May 2022 post-dated the two allegations of detrimental treatment, such that they could not be said to have occurred because of it in any event. Even therefore, if we had concluded that the Claimant had done protected acts when speaking to Ms Hitchin, we, in any event, would not have considered that the two allegations set out at paragraph 9.3 of the List of Issues involved any aspects of detrimental treatment, such that the Claimant’s victimisation complaint would have been dismissed in any event.

[95]Ultimately, therefore, all the Claimant’s complaints failed and her claim therefore fell to be dismissed. In the circumstances, we did not need to address the time limit issue.