Employment Judge W BradyIn person for claimantMr J Davies (instructed by Counsel) for respondentDate 28 March 2025
JUDGMENT
[1]The Claimant was suffering from a disability namely Lupus at the material time, which is 28th February 2024 onwards.
REASONS
[1]The Claimant is employed by the Respondent, a national supermarket chain based in Newtown Powys. She is employed as a pharmacist and pharmacy manager from 10 August 2021 and remains employed with the Respondent company. Early conciliation started and ended on 23 May 2024. The Claim form was presented on 24 May 2024.[2]The case is listed today for a public preliminary hearing to determine the issue of disability.[3]The Claimant confirmed that the material time for her claim begins on 28th February 2024 and that prior to that date she was able to make informal reasonable adjustments which enabled her to carry out her role effectively.
Findings of Fact
[4]The Claimant has produced 2 letters from her consultants and a letter from her GP. She also relied on her written statement and a statement from her husband, Mr Whitehouse and 2 statements from her work colleagues, Alex Cadwallader and Louise Barty.[5]The first letter is dated 01 August 2023, in that letter the diagnosis is stated “likely lupus, ANA positive 1:320, recurrent urticaria/angioedema, past bulimia, adverse reaction to hydroxychloroquine, hypothyroidism, Vitiligo, pernicious anaemia”. It also states that she is prescribed Phenergan.[6]The second letter is dated 10 July 2024, it repeats the diagnoses that were listed in the earlier letter. The medications are listed as Vitamin B12 injections, cocodamol, Thyroxine, Folic Acid and Duloxetine. The letter writer, Dr Patil states that he is considering treating her with Azathioprine and will review her in 6 months time,[7]The letter from the GP is dated 28th August 2024 it states that the Claimant has “likely systemic lupus which has manifested with previous skin problems and joint pains, these joint pains are generally managed well by Jackie…she gets joint pains and aches, particularly in the hands and feet which will make walking painful. This is more apparent at the end of the day. She has modified her footwear to make things easier for her and uses painkillers on as and when basis. She seeks regular attendance at surgery and at her specialist rheumatological department. In summary, Jackie has a long-term health condition which is a recognised disease and is likely covered by the dispensations with the equality act”.[8]In her evidence, Mrs Whitehouse explained how the condition affects her from day to day. She said that she cannot get up in the morning without assistance from her husband as her joints are painful. She said a rail was installed in the bathroom to help her use the toilet. She said that sometimes (approximately 3 times a week) she sleeps downstairs on the settee in the living room as it is too painful for her to walk up the stairs to go to the bedroom. She gave evidence to say that her husband helps her with her medication as she cannot open the blister packets and that he also makes her breakfast and then drives her to work. She gave evidence to say that she does not often go shopping, but that she was allocated a blue badge in August 2023 on Dr Ascari’s recommendation and that has made things easier for her.
Issues
[9]Mrs Whitehouse gave evidence to say that she discussed her disability with her employer when she started work and has done so on a number of occasions since then when she has been challenged about wearing flip flops but on 28th February 2024, things became more difficult for her.
Findings of Fact
[10]Mrs Whitehouse gave evidence to say that her role as a pharmacist is to check prescriptions are accurate once the dispenser has prepared the prescription. She does not therefore have to handle medications. In work she is on her feet all of the time, she does not take a lunch break or a toilet break. She is too worried about using the toilet as she has been told not to use the customer-disabled toilet and she is frightened that she will be unable to get off the toilet without assistance. She therefore does not eat and does not use the toilet all day, despite working from 9am until 7pm.[11]Mrs Whitehouse was asked why the consultants refer to “flare ups” in their letters. Mrs Whitehouse gave evidence to say that it is a constant flare up. That her condition has not dissipated but it has just got worse.[12]Mrs Whitehouse has not had any days off sick, she manages 5 staff but her role is to do a final check on the prescriptions, she does not dispense prescriptions as that is the role for the dispenser. She does not often need to use the till or to squat or bend down, despite what is recorded in the OH report, which she says was what the examiner suggested might be part of her role.[13]Mr Whitehouse was present, but his evidence was accepted and no questions in cross examination were put. Mr Whitehouse’s statement described how Mrs Whitehouse struggles with her pain and that he helps her in the morning to get out of bed and on and off the toilet and in the shower.[14]The two other witnesses also confirm that Mrs Whitehouse has difficulties, and they have to help her in work. The Law:[15]Disability is defined in Section 6 of the Equality Act 2010. It says, “A person has a disability if that person has ‘a physical or mental impairment’ which has a ‘substantial and long-term adverse effect on the person’s ability to carry out normal day-to-day activities” — S.6(1). The burden of proof is on the claimant to show that he or she satisfies this definition.[16]Paragraph 5 of Schedule 1 of the Act states: An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if:16.1 Measures are being taken to correct it, and16.2 But for that, it would be likely to have that effect.[17]In Goodwin v Patent Office (1999) I.C.R 302 Morrison J held that the following four questions should be answered when determining whether or not a claimant has a disability:a. Did the Claimant have a mental or physical impairment?b. Did the impairment affect the claimant’s ability to carry out normal day-to-day activities?c. Was the adverse condition substantial?d. And was the adverse condition long-term?[18]Para. 12 of Schedule 1 of the EA 2010 provides that when determining whether a person is disabled, the Tribunal “must take account of such guidance as it thinks is relevant.” The “Equality Act 2010 Guidance on matters to be taken into account in determining questions relating to the definition of disability” (May 2011) (the “Guidance”) was issued by the Secretary of State pursuant to s. 6(5) of the EA 2010.[19]The Guidance says that “A disability can arise from a wide range of impairments” including “impairments with fluctuating or recurring effects such as rheumatoid arthritis, myologic encephalitis, chronic fatigue syndrome, fibromyalgia, depression and epilepsy. Conclusion:[20]The Respondent challenged the Claimant on the basis that there is no substantial long-term effect on her daily activities. Mr Davies argued that as she goes to work from 9-7 and does not eat or go to the toilet that her account is not credible. He also argued that as her account of her role differs to that of the Occupational Health report that she has exaggerated her evidence.[21]I find that the Claimant’s evidence is credible. She has described in detail her difficulties, which accord with the evidence given by her husband and her work colleagues. Her medical condition has been confirmed by her GP and the medication that she was prescribed increased substantially in the time between the two consultant letters. I accept the Claimant’s account that she struggles through the day as she loves her job but then has difficulties when she stops to sit down and when she gets home in the evening.[22]I therefore find that the Claimant does have a disability as defined by section 6 of the Equality Act which was present at the time of the meeting on 28th February 2024 and is ongoing.[1]Prior to the final hearing two case management preliminary hearings were conducted, the first was on 9 August 2024 and was undertaken by Employment Judge Sharp and the second was on 30 October 2024 before Employment Judge Randall.[2]A preliminary hearing to determine whether or not the Claimant was disabled took place on 6 January 2025 Employment Judge Brady.[3]At the outset of the hearing the Employment Judge discussed the issues with the parties, who confirmed the issues as detailed below, and set out in the case management orders were the issues to be determined. It was explained numerous times during the hearing that the Tribunal would be making finings of fact as necessary to determine the issues in the case.[4]The Employment Judge explained the process of giving and challenging evidence and making submissions.[5]There were a large number of witness statements. For the Claimant, in addition to herself, witness statements for the following were provided: Robert Whitehouse; Kay Wolverson; Louise Barty; Cerys Jones x 2; Lyndsey Challoner; Alex Cadwallader and Leigham Reynolds. All the Claimant’s witnesses swore or affirmed their evidence but Mr. Davies only cross examined Alex Cadwallader and Leigham Reynolds.[6]For the Respondent, the following witnesses gave evidence: Rebecca Vranch Jones - People Specialist; Kraig Buckley – Newtown Store Manager; Rachel Edwards - Regional People Manager; Allan DaviesShrewsbury Store Manager; Richard Jones - Senior Maintenance Manager; Fraser Frame – Senior Pharmacy Operations Manager and Arvinder Sagar - Senior Pharmacy Area Manager.[7]An agreed bundle of 881 pages had been provided. The Employment Judge explained to the parties that there would not be time to read all the documents in the bundle and that if there was any document that required to be read the Tribunal must be directed to it. The Respondent had provided a written skeleton argument. Both parties made closing oral submissions.[8]No reasonable adjustments were required other than regular breaks. Issues[9]The numbering is as set out in list of issues set out in the Record of Preliminary Hearing undertaken by Employment Judge Sharp on 9 August 2024. Direct disability discrimination (Equality Act 2010 section 13)2.1 Did the Respondent do the following things: 2.1.1 The Claimant’s disability was disclosed with the whole store management team, including team leaders, on 28 February 2024 without her permission.2.2 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 they were treated worse than someone else would have been treated. The Claimant has not named anyone in particular who they say were treated better than they were.2.3 If so, was it because of disability?2.4 Did the Respondent’s treatment amount to a detriment Reasonable Adjustments (Equality Act 2010 sections 20 & 21)3.1 Did the Respondent know or could it reasonably have been expected to know that the Claimant had the disability? From what date?3.2 A “PCP” is a provision, criterion or practice. Did the Respondent have the following PCPs: 3.2.1 A policy that the pharmacist must attend the cash office every day to collect the keys for the pharmacy.3.3 Did the PCPs put the Claimant at a substantial disadvantage compared to someone without the Claimant’s disability, in that the cash office is upstairs and there is no lift, and the Claimant struggles with stairs?3.4 Did a physical feature, namely the staff disabled toilet being at the back of the store while the pharmacy is at the front, put the Claimant at a substantial disadvantage compared to someone without the Claimant’s disability, in that due to her disability she struggles to walk that distance?3.5 Did the lack of an auxiliary aid, namely a companion at the disciplinary hearing, put the Claimant at a substantial disadvantage compared to someone without the Claimant’s disability, in that she needed help from the companion to get to the hearing?3.6 Did the Respondent know or could it reasonably have been expected to know that the Claimant was likely to be placed at the disadvantage?3.7 What steps could have been taken to avoid the disadvantage? The Claimant suggests:3.7.1 Not require her to collect the keys personally from the cash office;3.7.2 Allow her to use the customer disabled toilet next to the pharmacy;3.7.3 Allow a companion to attend the disciplinary hearing.3.8 Was it reasonable for the Respondent to have to take those steps and when?3.9 Did the Respondent fail to take those steps? Harassment related to disability (Equality Act 2010 section 26)4.1 Did the Respondent do the following things: 4.1.1 On 28 February 2024, Tom Benn and Rebecca Vranch-Jones:4.1.1.1 Questioned the Claimant’s disability (Tom allegedly laughed and said that he basically couldn’t understand why someone couldn’t walk to the back of the shop and if the Claimant was that disabled, why was she working in the first place)?4.1.1.2 Tom questioned why the Claimant could not walk to the clocking in machine (located on the ground floor and at the back of the shop while the pharmacy is at the front)while Rebecca added that the Claimant could walk to back of the shop that day for the meeting so she couldn’t understand why the Claimant couldn’t walk to the clocking in machine?4.1.1.3 Questioned the Claimant’s choice of footwear – Tom said that he didn’t understand how wearing flip-flops could make it any easier to walk and Rebecca questioned why the Claimant did not try any other shoes and said if she was wearing flip-flops, the Claimant could not do her job? 8.1.2 On 29 February 2024, Tom Benn in the pharmacy in the presence of Cerys Jones and Louise Barty said “Just because you have a disability, it doesn’t make a difference. It’s still policy to sign in”. 8.1.3 Formal grievance raised on 19 March 2024 did not follow the timescales in the formal grievance policy; 8.1.4 The Claimant’s grievance was disclosed on or around the w/c 25 March 2024 to Alison Howells, Tom Benn, Rebecca Vranch-Jones, Kraig Buckley & Kelly Price by Rachel Edwards. 8.1.3 On a manager’s WhatsApp group chat, where it had previously been agreed at the meeting on 28 February that the Claimant would notify managers that she was in the store (or not) rather than using the clocking-in machine, Kraig Buckley posted a emoji of a crown after the Claimant posted whether she was in or not on 7 March 2024, implying that the Claimant was a drama queen. 8.1.4 Described as “difficult” by Rachel Edwards in her witness statement for the disciplinary (the Claimant says she was upset about why her grievance was not heard); 8.1.5 Ms Edwards also said in that witness statement that the Claimant “believed she had lupus and could not go to the clock in machine but could come to a meeting”; 8.1.6 Kraig Buckley in his disciplinary witness statement “Jackie believes that she has lupus and that’s why she can’t swipe in”.4.2 If so, was that unwanted conduct?4.3 Did it relate to disability?4.4 Did the conduct have the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant?4.5 If not, did it have that effect? The Tribunal will take into account the Claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect Victimisation (Equality Act 2010 section 27)5.1 Did the Claimant do a protected act as follows: 5.1.1 Formal grievance raised on 19 March 2024 alleging disability discrimination?5.2 Did the Respondent do the following things:5.2.1 disciplinary started on 19 April 2024 and suspension of Claimant;5.2.2 imposition of written warning.5.3 By doing so, did it subject the Claimant to detriment?5.4 If so, was it because the Claimant did a protected act?5.5 Was it because the Respondent believed the Claimant had done, or might do, a protected act?
Findings of Fact
[10]The Tribunal has attempted to set out the Tribunal’s findings of fact in chronological order as far as practicable. The findings have been made based on the evidence presented, on the balance of probabilities and as far as necessary to determine the issues being considered in this claim.[11]The Respondent operates a large number of supermarkets. The Claimant is employed by the Respondent and works at the pharmacy withing the Respondent’s Newtown store. The Claimant is employed as a Pharmacist Manager and works from 9.00 to 19:00 Tuesday to Friday. The Claimant started working at the Respondent in August 2021. However, the Claimant had previously worked for the Respondent approximately 10 years ago.[12]The Claimant has Lupus. The condition means that her symptoms vary and when she has a flare up she can find walking and managing stairs difficult. The Claimant told the Respondent that she had Lupus. The Claimant has always worn flips flops whilst working at the Respondent. In 2022 the Claimant discussed wearing flip flops with Daljit Sandhu, Area Manager, and she was permitted to wear them. At that time other members of staff where aware the Claimant had Lupus including Kraig Buckley, Store Manager, and Lynne Jones, Personnel Manager. There is nothing recorded on the Claimant’s file about her Lupus. A number of staff at the Respondent knew the Claimant had Lupus, including colleagues in the pharmacy, and some managers, including Kraig Buckley and Mr. Jones.[13]In her witness statement the Claimant refers to experiencing many issues of harassment before 28 February 2024, but the issues are not set out and the Tribunal was not directed to any documents detailing any informal or formal complaints.[14]It is a legal requirement that dispensing medication/drugs be locked overnight. The Respondent’s policy in relation to locking the medication is set out in a Pharmacy Key Procedure Document. In essence, the Respondent’s procedure involves the key being kept in the cash office overnight. In the Newtown store the cash office is upstairs. The key is kept in a sealed pouch in a safe in the cash office overnight. The Responsible Person, the Claimant or locum pharmacist, must collect the key in the morning and sign the key out.[15]Until 28 February 2024 the Claimant had been collecting the key from the cash office, up the stairs. It is not clear when, but locums also collected the key.[16]The staff toilets in the Newtown store are located in the staff area behind the customer areas. The customer toilets are located closer to the pharmacy.[17]The Respondent has a Grievance Policy. There is information about the aim to resolve grievances informally in the first instance and notes that any concerns that cannot be resolved through the informal process can be progressed through the formal grievance process.[18]The Grievance Policy also set outs contains a link to the formal grievance form that staff can complete. The policy states: “Colleagues will be invited to a grievance hearing as soon as possible, ideally taking place within 14 days of the grievance being received and on a normal working day.”[19]The Grievance Policy also states that the manager hearing the grievance will be independent to the matter and that: “Grievances raised during a disciplinary process, that is directly related, will be considered as part of that process. If it is entirely separate, it will be heard in parallel with the disciplinary.[20]The Respondent has a Disciplinary Policy and a Disciplinary Guide. The Guide provides information about misconduct and the Policy sets out information about the process.[21]The Respondent has a Representation Guide which explains the entitlement to representation at formal meetings.[22]The Respondent has a Respect in the Workplace Policy.[23]All employees of the Respondent are provided a card that they are supposed to swipe in when they arrive for work and when they leave. The clock in/swipe machine is located in the staff area behind the customer area.[24]The Employee Handbook has a section headed “Timekeeping Contractual”, and the first paragraph states: “You’ll be notified if you’re required to swipe in and out at the start and end of your shift. You must not swipe anyone else’s card, alter your own, or get someone to swipe in or out for you.”[25]The Claimant was issued with a swipe card. The Claimant did not consider the swipe in system to be a policy as she says not all managers swipe in and she does not consider it applied to her because she had set contractual hours. In her witness statement the Claimant refers to have been issued with a number of swipe cards that she gave to staff to swipe her in.[26]Around 21 February 2024 the Respondent became concerned about swiping in practices within the pharmacy. Ms. Vranch and Mr. Benn agreed with each other that they wished to speak with the Claimant to find out details of the swiping in process in the pharmacy. Ms. Vranch was appointed to her role in August 2023 and had not met the Claimant. Mr. Benn was, at the time, the Claimant’s line manager. Neither Mr. Benn or Ms. Vranch knew that the Claimant had Lupus before 28 February 2024.[27]Meeting 28 February 2024[28]On 28 February 2024 Mr. Benn contacted the pharmacy and asked the Claimant to attend a meeting in the manager’s office. The Claimant went to the office, albeit she was concerned about leaving the pharmacy. Mr. Benn opened the meeting and said he wanted to ask a few questions about swiping in. The Claimant is recorded as saying: “No, I suffer Lupus so it’s been known from the start that I don’t swipe, I give my card to a member of staff to swipe me in. Ali even gave me…”[29]The notes then end as the Claimant became upset.[30]The Claimant, as alleged in the list of issues, says that during the meeting Mr. Benn and Ms. Vranch acted and spoke in a way that harassed her.[31]Mr. Benn is no longer employed by the Respondent and did not provide a witness statement.[32]Ms. Vranch set out her account of the discussions with the Claimant on 28 February 2024 in her witness statement. She says that in the short first meeting in the manager’s office the Claimant was worked up and rude and then left, following which colleagues in the pharmacy called Mr. Benn and said the Claimant was leaving work. The Claimant was very upset. Mr. Benn and Ms. Vranch walked to the pharmacy and spoke with the Claimant in the consultation room and explained they needed to ask some questions about swiping. In the initial discussion in the consultation room the Claimant made some general comments about unhappiness at work and mentioned lupus. The meeting broke to allow the Claimant to undertake some work tasks and Mr. Benn and Ms. Vranch met with the Claimant, again in the consultation room, later the same day.[33]Ms. Vranch took a handwritten note of the meeting.[34]The notes run to 7 pages and indicates the vast majority of the discussion is about swiping practices. The notes indicate a sensible and honest conversation about swiping practices and pharmacy work arrangements. The Claimant provided information about how team members worked and would pick up prescriptions before attending work and that people swiped in for each other. In relation to herself, at the start of the meeting she said: “don’t swipe cos I got Lupus, rheumatoid arthritis so enough to got to cash office that enough to get the keys Wed Rach was in, if locum was in, I don’t and wait for them to go up. Health issues currently autoimmune flare, particularly worse ATM[35]Mr. Benn is recorded as saying in response: “after this, we’ll do a letter for file, get agreement of reasonable adjustments.[36]The Claimant responded: “Somedays, I’m ok and others bad. Some days I don’t want to walk and wont go the loo. I want to be at work. If fire alarm goes off, I hate it. Cerys brings me, I get out car and come to work. I can drive but daughter ask can I drive, Lupus affects everything everyday I feel sometime.”[37]The Claimant referred to needing a special chair.[38]The meeting closed by Mr. Benn explaining that the pharmacy team needed to swipe in and that Ms. Vranch would be in contact to arrange a welfare meeting to discuss reasonable adjustments.[39]The meeting notes do not accord with the comments the Claimant alleges Mr. Benn and Ms. Vranch said during the meeting. The Claimant did not challenge Ms. Vranch’s account of the discussions as set out at paragraphs 10 or 11 in her witness statement. At paragraph 12 Ms. Vranch specifically deals with the allegation that the Claimant’s disability was questioned, that Mr. Benn couldn’t understand why someone couldn’t walk to the back of the shop and if the Claimant was that disabled, why was she working in the first place and that Mr. Benn laughed. Ms. Vranch explains: “Tom never laughed or said this and if he had, I would have investigated Tom immediately as I would not have allowed such behaviour. From recollection, Tom asked her questions about her Lupus, such as how her condition affected her at work and how long she had her condition. These questions were asked to understand her condition and consider ways in which we could support her, because we genuinely did not know about her condition. They were not asked in a hostile way. The Claimant even laughed in the meeting at one point, when she calmed down. The meeting ended upbeat and felt positive.”[40]The notes, and follow up emails, support Ms. Vranch’s account of the discussions. The Claimant did not cross examine or challenge the contents of paragraph 12 of Ms. Vranch’s witness statement, and accordingly Ms. Vranch’s account is accepted.[41]At paragraph 13 Ms. Vranch addressed the allegation that Mr. Benn questioned why the Claimant could not walk to the clocking in machine. Ms. Vranch does not recall Mr. Benn saying this. She comments that open questions were asked to understand. The Claimant did not cross examine or challenge the contents of paragraph 13 of Ms. Vranch’s witness statement and accordingly Ms. Vranch’s account is accepted.[42]At paragraph 14 Ms. Vranch addressed the allegation that she “added that the Claimant could walk to back of the shop that day for the meeting so she couldn’t understand why the Claimant couldn’t walk to the clocking in machine”. Ms. Vranch’s evidence is that she cannot explicitly remember if she said this or not, but if she did, it was not in a confrontational or hostile way and questions were asked to find out about the Claimant’s symptoms and triggers. The Claimant did not cross examine or challenge the contents of paragraph 13 of Ms. Vranch’s witness statement. The Claimant’s account is set out at paragraph 24 of her witness statement which says “She asked how I could get to the training office if I couldn’t get to the swipe machine, and I explained with great difficulty as they hadn’t given me a choice”. The Tribunal accepts that Ms. Vranch asked a question, as set out in the Claimant’ s own statement, in a nonconfrontational way and the specific comment as alleged by the Claimant was not said.[43]The Claimant also alleges that Mr. Benn “said that he didn’t understand how wearing flip-flops could make it any easier to walk and Rebecca questioned why the Claimant did not try any other shoes and said if she was wearing flip-flops, the Claimant could not do her job.” At paragraph 15 of her witness statement Ms. Vranch denies that she told the Claimant if she was wearing flip flops she could not do her job, but says she did ask the Claimant if she wore flip flops because she had Lupus and asked the Claimant questions about footwear in an attempt to understand.[44]At paragraph 16 of her witness statement Ms. Vranch sets out: “Tom may have said something like “I didn’t realise that’s how it affected your feet” or “ah, it makes your feet sore.” He never said that he didn’t understand how wearing flipflops could make it any easier to walk.”[45]The Claimant did not cross examine or challenge the contents of paragraph 16 of Ms. Vranch’s witness statement, and accordingly Ms. Vranch’s account is accepted.[46]The Claimant, in cross examination, asked Ms. Vranch two questions relating to wearing flip flops. She asked a general question about what Ms. Vranch thought it would mean if a member of staff wore flip flops and Ms. Vranch explained as that was not usual footwear she would need to ask questions to get a better understanding.[47]The Claimant also put it to Ms. Vranch that at the meeting on 28 February 2024 Ms. Vranch said potentially the Claimant couldn’t work with flips flops and flip flops are not safe. Ms. Vranch’s oral answer was that she did not remember coming to that conclusion all, and explained the conversation ended by agreeing to arrange a welfare meeting to discuss reasonable adjustments and support the Claimant. Ms. Vranch’s evidence on this matter is consistent, and on the balance of probabilities the Tribunal find Ms. Vranch did not make the alleged comment.[48]The Claimant did not raise any concerns about staff toilet use on the meeting on 28 February 2024.[49]The Claimant had not raised any concerns about collecting the key from upstairs before 28 February 2024. In cross examination the Claimant said around this time she was having a flare so struggled to get up the stairs, this is supported by the notes.[50]The meeting notes do not set out any clear reference to the Claimant saying that she was struggling to go up the stairs, but do say it was enough to go to the cash office.[51]Ms. Vranch’s evidence, written and oral, was that the Claimant only mentioned briefly that she struggled to collect the keys. She did not ask for any change to the key collection procedure.[52]At the meeting it was agreed that the Claimant would not need to walk to the swipe machine and instead she would post the times she arrived at and left the store on the managers group chat. The Claimant started doing this. The Claimant says she was upset by the lack of response to these messages. In the meeting it was explained to the Claimant she needed to ensure the pharmacy staff were recording their attendance on site appropriately. The Claimant was allowed to wear flip flips whilst the matter was looked into and offered a chair. It was also agreed some ladders would be taken to the pharmacy following the Claimant raising a concern about staff needing to climb on shelves.[53]The meeting closed positively with an agreement for further discussion and consideration of support to take place.[54]Following the meeting Ms. Vranch updated Kraig Buckley, Store Manager. He was already aware the Claimant had Lupus.[55]She also contacted Arvinder Sagar, Pharmacy Area Manager, but not until the next day, 29 February 2024, as the Claimant had raised some matters regarding operations in the pharmacy such as climbing on counters and Ms. Vranch considered Ms. Sagar, in her position, would be best placed to deal with such matters. At paragraph 29 of her witness statement Ms. Vranch says: “I did not share details of the Claimant’s Lupus condition with anyone else, including the whole store management team, as the Claimant alleges. I am not aware of Tom sharing details of the Claimant’s Lupus condition to anyone after the meeting”.[56]In paragraph 39 of the Claimant’s witness she says that on 29 February 2024 when handing keys to Josh Hazelhurst he said “oh yes you’ve got that thing haven’t you, that disabled thing.” And he said “all the managers had been told about it”. There are 12 members on the line manager chat group.[57]The Claimant has not specified who she means by whole store management and that she thinks the disclosure was by Mr. Benn or Ms. Vranch. The Tribunal accept Ms. Vranch’s evidence that she did not tell anyone.[58]On the balance of probabilities, on the evidence available, noting the new sign in procedure via manager chat, the Tribunal find Mr. Hazelhurst did make the comment and that some members of management were told about the Claimant needing to be signed in for differently. The Tribunalcannot make any firm finding on who said what to who and when but consider it likely that at least some of the store management team were told this was for a disability related reason. 29 February 2024[59]Ms. Vranch was not aware of the allegation that Mr. Benn said to the Claimant “Just because you have a disability, it doesn’t make a difference. It’s still policy to sign in”.[60]The Claimant’s evidence is that on 29 February 2024 Mr. Benn attended the pharmacy and discussed the ladders that had been taken to the pharmacy the previous day, as the pharmacy staff thought the new ladders were too big and obstructive. The ladders had been provided the previous day following the Claimant mentioning staff climbing on counters. The Claimant had put a message on the managers group chat asking for someone to fetch the ladders as she felt they were more of a hazard than a cure. Ms. Vranch replied to this message and asked for a bit more information about the ladders.[61]The Claimant’s account of the discussion is set out at paragraph 35 of her witness statement and she says she sought to explain she had been made to feel disabled the previous day and that Mr. Benn repeated that it doesn’t matter about disability everyone has to sign in. Ms. Barty’s unchallenged witness statement states that Mr. Benn told the Claimant everyone had to sign in and she was no different. It does not say Mr. Benn said the precise words alleged. Ms. Jones’ statement does not address this allegation. On balance we find Mr. Benn did tell the Claimant that she had to sign in and that on the balance of probabilities he didn’t say the exact words as alleged but that he did refer to her being no different and having to sign in.[62]In her witness statement, at paragraph 36, the Claimant says: “That morning, after Tom Ben left the pharmacy, I wrote an email to Rebecca Vranch-Jones to indicate how I felt and how both Tom and her had made me feel after the meeting yesterday and current day too”.[63]The Claimant does not mention the discussion with Mr. Benn in her email to Ms. Vranch at 09:01, but she does say she wants a three step ladder.[64]On 29 February 2024 Ms. Vranch emailed the Claimant and said she was in Newtown on 12 March 2024 and asked the Claimant if that day would suit her to go over any adjustments.[65]The Claimant replied about an hour later to say she was on leave that week. Within the email Claimant made comments about signing in and her views on why it was not needed, that she had been made to feel very disabled and caused a lot of stress and upset and she had experienced a flare up and anaphylactic reaction. She referred to discussing with her husband whether she wished to continue in her role. She also set out her views that Newtown was a toxic place to work.[66]Ms. Vranch replied a few minutes later expressing that she was sorry the Claimant felt this way and provide her mobile number, on her day off, and said: “Please can you give a call on XXX today, it’s my day off but I really to talk to you and work through any concerns Thanks”[67]The Claimant did not call Ms. Vranch.[68]On 6 March 2024 Ms. Vranch emailed the Claimant asking what the week commencing 25 March 2024 looked like for the Claimant as she intended to visit the store on 27 March. Ms. Vranch explained how locums should be signing in and also said: “As I said before, the purpose of a welfare meeting is to ensure we are doing everything to help you with your disability and for us to explore what reasonable adjustments we can consider to support you. How did if go at the GP? I would still like to arrange this welfare meeting with you. I have invited Arvinder over to meet me in Newtown. Unfortunately Avinder is next available to visit on 14th March, which is when I know you’re on holiday but I don’t want to delay getting the ball rolling, so I’ve agreed to meet with her on 14th March but also asked for her to come over again so that she can meet with both yourself and I”.[69]The Claimant replied to Ms. Vranch on the same day, expressing her annoyance and upset, and she also emailed Ms. Sagar. She said she will raise a grievance and that she was unhappy with how she had been treated since the beginning of her employment. 7 March 2024[70]On 7 March 2024 Mr. Buckley sent the Claimant a message in the manager group chat. The message said “Thank you Jackie have a good day” followed by a emoji of a crown and a thumbs up. The Claimant says that within the Respondent she is referred to as a drama queen, and the crown was a reference to that phrase. Mr. Buckley says that he is Strava user and regularly uses the crown emojis in other groups with reference to “King of the Mountain”. He says he added the crown in error. The Tribunal accept Mr. Buckley’s explanation. The Claimant did not raise Mr. Buckley’s use of the crown emoji with him at the time.[71]The Claimant was on annual leave for the week commencing 10 March 2024. She returned to work on 19 March 2024. 19 March 2024[72]On 19 March 2024 the Claimant lodged a grievance, by completing the Respondent’s electronic grievance form. She ticked the boxes to indicate the grievance was about manager/senior manager, bullying and harassment and discrimination and said she had raised her grievance informally on 29 February 2024.[73]The details of the grievance were stated to be: “My disability, the disability act, discrimination, lack of empathy and understanding, being bullied and harassed because pharmacy is “different”. Being undermined constantly, toxic working environment.”[74]The Claimant provided further detail about her perception of the discussions on 28 February 2024. The detail about 28 February sets out concerns about how the meeting was conducted, there is no clear reference to Lupus. She also commented on Mr. Benn’s actions on 29 February 2024 and she felt he discussed matters in front of her team and showed little empathy. She commented that her disability had been made known to the whole management group and Kraig Buckley had undermined her in the managers group chat. She said she would send further information in an email about the toxic work culture over the last two and a half years.[75]She said the outcome she wanted was to not be discriminated and be able to manage her department as she needed without being undermined.[76]On 20 March 2024 the Claimant sent a four page email to Ms. Edwards, Peter Fulford and Ms. Sagar setting out further detail of her grievance. The email sets out the Claimant’s account of the meeting on 28 February 2024. Within the email, with reference to her disability, the Claimant said she struggles to walk a distance and going to the clocking in machine is impossible with a flare up. She said she felt her disability was being questioned in the meetings.[77]In relation to managing stairs, there is only one small comment about this in the four page email, the relevant part states: “I also mentioned that I struggled with the stairs to get the keys some mornings and that was ignored”.[78]The email does not set out any concern about access to toilets.[79]The email does make reference to Mr. Buckley posting a crown emoji and towards the end of the email the Claimant sets out her concern about Mr. Buckley’s management of the store and staff.[80]The People Services Team sent the grievance to Rachel Edwards on 22 March 2024. Ms. Edwards forwarded it to Kraig Buckley on 23 March 2024 and enquired how it was being dealt with.[81]Upon receipt Kraig Buckley emailed Ms. Edwards with his concerns, checked it was appropriate for him to acknowledge and seeking guidance.[82]Ms. Edwards sent Mr. Buckley and Michael Sutton, Regional Manager, the Claimant’s grievance. She also forwarded it to Alison Howells, People Assistant.[83]There is no evidence indicating that she disclosed it to Mr. Benn, Ms. Vranch or Ms. Price at this time.[84]Ms. Edwards had sent it to Mr. Buckley on 23 March 2024 as, notwithstanding the fact that the Claimant had submitted her grievance via the formal link, she wanted Mr. Buckley to meet with the Claimant to see if her concerns could be resolved informally. Ms. Edwards considered this to be the best course of action.[85]On 27 March 2024 Mr. Buckley and Ms. Sagar exchanged emails indicating that the aim was to support the Claimant and establish what could be done to gain her confidence.[86]On 28 March 2024 Kraig Buckley and Ms. Sagar met with the Claimant and discussed her concerns. The Claimant was upset at the start of the meeting and Mr. Buckley considered her behaviour to be aggressive but she then became calm and discussions took place. The meeting on 28 February 2024 was discussed, and her feelings about the store culture and management, including Mr. Buckley. Mr. Buckley’s unchallenged evidence was that the Claimant’s main concerns were about the operation and management of the pharmacy.[87]The Claimant did not raise concerns about toilet use or climbing stairs and did not ask for any specific adjustments in this respect.[88]During the discussion Mr. Buckley explained the error he made in relation to posting a crown emoji and apologised for the mistake. He understood that the Claimant had accepted his explanation and apology.[89]The Claimant was not aware, in advance, that the meeting was going to deal with her workplace concerns. However, Mr. Buckley left the meeting and recorded in an email to Ms. Edwards that the discussion had been positive and the Claimant was happy for him to take the next steps to resolve her grievance.[90]Things were calmer and improving after this meeting and Mr. Buckley’s unchallenged evidence was that the relationship between them had improved and was good. The Tribunal was not directed to any documents setting out the Claimant raised any concerns about her grievance being outstanding or other matters.[91]The Claimant’s evidence is that at a customer first session (some time in either March or April 2024) staff were told they could not use the customer toilets. Mr. Cadwalder’s witness statement aligns with this. However, in cross examination Mr. Cadwalder said he did not know the Respondent’s policy in relation to the use of customer toilets. In the Claimant’s witness statement, paragraph 55, she says she had a conversation with Mr. Buckley and he said the customer toilets should be available for customers only.[92]Mr. Buckley’s evidence is that the Claimant never raised the issue and that it is common practice for staff to use the disabled customer toilet if needed, but preference is for staff toilets to be used. Ms. Edward’s evidence was that staff across the Respondent use the customer toilets if necessary. The evidence of Mr. Buckley and Ms. Edwards was not challenged in this respect.[93]The Claimant’s oral evidence was that until recently, after the preliminary hearing in this litigation, she had not used any toilet at all during the working day and waits until she gets home. We were not directed to any evidence that she raised any concern, in writing or in a meeting, about staff toilet location use until this litigation, save for as set out at paragraph 36 above. On balance, noting the direct contradiction between Mr. Buckley and the Claimant’s evidence, and the lack of any corroboration and that as demonstrated by other findings at times the Claimant’s evidence is not supported by contemporary evidence, we find that the Claimant did not raise the issue of using a customer toilet with Mr. Buckley.[94]On balance, we find that the Respondent’s approach to toilet use is that in the first instance employees are supposed to use staff toilets but staff are not prevented from using the customer toilets if they. On balance, we accept that staff can use the customer toilets if they need. 19 April 2024[95]On 19 April 2024 Ms. Edwards attended the store. She met with the Claimant, the Claimant was not told the reason for the meeting. Ms. Edwards had wanted to check in with the Claimant following her grievance and it being reported to her that the issues were being resolved informally.[96]The meeting started amicably, but the Claimant became very upset and Ms. Edwards considered the Claimant was angry and agitated when Ms. Edwards mentioned the Claimant barging into a customer first meeting. The Claimant considered that Ms. Edwards was angry and aggressive.[97]Ms. Edwards called Mr. Buckley and she told him the Claimant had got upset and angry. Mr. Buckley went to see Ms. Edwards. Ms. Edwards was shocked. Ms. Vranch entered the room and told them that she had just heard the Claimant call Ms. Edwards a fucking bitch. Ms. Edwards left the building.[98]Mr. Buckley went to the pharmacy to talk to the Claimant. He describes being “bombarded with colleagues shouting at me and asking questions about the Claimant that I couldn’t divulge the answers to. It felt like World War Three. I was so shocked.”[99]Following initial discussions with Ms. Edwards and the Claimant’s team Mr. Buckley contacted Employee Relations for advice. Mr. Buckley made the decision to suspend the Claimant. Mr. Buckley prepared a suspension letter and gave this to the Claimant in person, and read it out to her. The suspension letter states the Claimant was suspended as a result of the incident on 19 April 2024.[100]The Claimant was not clear on why she had been suspended.[101]Within the letter it was stated: “Please be advised that your suspension does not in itself constitute disciplinary action, and there is no suggestion of guilt at this stage. An investigation will now take place and this may result in you being required to attend a disciplinary hearing. The Company will be following a fair and thorough procedure. To allow us the opportunity to investigate this incident, you are required to attend an investigation meeting. Investigation Manager, Chris Titley Store Manager will hear the meeting, in the presence of a notetaker. The meeting will take place on 23rd April 2024 at 13:00 at Welshpool Store Managers Office.”[102]On 19 April 2024 Ms. Howells, Ms. Price, Ms Vranch produced a handwritten note of the events of the day. They all use slightly different phrases but all say the Claimant used derogatory language about Ms. Edwards.[103]On 23 April 2024 Mr. Titley, Store Manager at Market Drayton, held investigation interviews with several members of staff.[104]Ms. Edwards was interviewed and notes were taken by Fiona Murray, People Manager.[105]The Claimant alleges that Ms. Edwards described her as “difficult” and “believed she had lupus and could not go to the clock in machine but could go to a meeting”. The meeting notes are three pages long and have been considered in full.[106]Set out below are what the Tribunal consider to be relevant extracts, in relation to the issues for determination. “Rebecca said she was being difficult, I said I’d go in and have a coffee with her… I believe she has Lupus but it was never discussed. This was going to be part of the proves but I hadn’t even talked about it yet… I knew she was being difficult and difficult to manage.”[107]The Tribunal could not locate, and was not directed to, any comment as specifically alleged by the Claimant, as “believed she had lupus and could not go to the clock in machine but could go to a meeting”.[108]Ms. Edward’s evidence, which is accepted, is that Ms. Vranch informed her that she found the Claimant difficult, and the reference to being difficult was what had been reported to her.[109]Mr. Buckley was interviewed and notes were taken by Fiona Murray, People Manager, and run to just over three pages.[110]The Claimant alleges that Mr. Buckley said “Jackie believes that she has lupus and that’s why she can’t swipe in”. Set out below is what the Tribunal considers to be the relevant parts of the notes: “Jackie doesn’t believe she can swipe in because of her Lupus but walks through the store to burst into a customer’s first session.”[111]On 22 April 2024 Ms. Vranch sent emails to a people team colleague regarding their investigation meetings. Ms. Vranch refers to a bird pooing on her and hoping it brings good luck. The Tribunal consider this to be in reference to the investigation.[112]An investigation meeting took place on 23 April 2024, in the Welshpool store. The Claimant was accompanied at this meeting by Kay Wolverson. Ms. Wolverson drove the Claimant to the meeting.[113]Following his investigation Mr. Titley determined that it was appropriate for the matter to continue to a disciplinary hearing.[114]On 26 April 2024 the Claimant was sent an invitation to a disciplinary meeting scheduled to take place on 2 May 2024. The invitation set out the following allegations: “1. A serious breach of the Respect in the Workplace Policy, whereby your behaviour is of an offensive nature, while working in the Morrisons Newtown store on Friday 19th April specifically you have: - Allegedly made reference to Rachel Edwards – Regional People Manager as “She’s a nasty bitch” - Allegedly state “I’ve just been with that fucking horrible woman” referring to your meeting with Rachel Edwards – Regional People Manager 2. A serious breach of trust and integrity whereby your actions have led to a breakdown in confidence of a working relationship to be maintained.”[115]Mr. Allan Davis was appointed to undertake the disciplinary hearing. On review of the investigation documents he had concerns that there were potentially additional conduct issues that needed to be investigated further. Mr. Davies asked Mr. Jamie Davis, Store Manager at Wellington to undertake further investigation, which he did.[116]Following a review of the further investigation it was determined that there were additional allegations that should be considered at the disciplinary hearing.[117]On 11 May 2024 the Claimant was sent a second and amended invitation to a disciplinary meeting scheduled for 19 May 2024. The letter set out the allegations against the Claimant and referred to a number of documents being enclosed. The letter also said the Claimant was entitled to take a work colleague or trade union representative to the meeting.[118]The revised allegations were: 1. A serious breach of the Disciplinary Policy, whereby your behaviour is of an offensive and inappropriate nature, while working in the Morrisons Newtown store on Friday 19th April specifically you have: - Allegedly made reference to Rachel Edwards – Regional People Manager as “She’s a nasty bitch” - Allegedly stated “I’ve just been with that fucking horrible woman” referring to your meeting with Rachel Edwards – Regional People Manager - Allegedely referred to Kraig Buckley as being ‘like Hitler’, Lynne Jones (Previous People Manager) and Ali Howells (People Assistant) as being ‘like the Gestapo’ to Rachel Edwards during your meeting 2. A serious of the Disciplinary Policy, whereby your behaviours is of an offensive and inappropriate nature, whereby you specifically; - Allegedly referred to the Management Team in the Newtown store as ‘C***s’ to the Customer Service Manager, Kelly Price within the Pharmacy 3. A serious breach of trust and integrity whereby your actions have led to a breakdown in confidence of a working relationship to be maintained.”[119]On 11 May 2024 the Claimant emailed Mr. Davies and within it said she wished for Kay Wolverson to be her representative but also for Ms. Barty to attend so both could give witness statements. The relevant part states: “I would like to ask that Kay Wolverson be my representative but would also ask if I can have Louise Barty attend who is also a pharmacy colleague. I would like to have them both make witness statements and kay has been with me since I started with the business in August 2021.”[120]On 14 May 2025 the Claimant emailed Mr. Davies. The email is not copied in full here, but the Tribunal considered it in full, but in relation to attendance by Ms. Wolverson and Ms. Barty it states: “I have already received the representation policy countless times, so I understand the representation procedure, however as part of the disciplinary I am able to present witnesses so I feel it would be fair for Louise to be there too.”[121]The email makes further reference to Ms. Barty being a key witness and wants her and Ms. Wolverson present to represent her. The email closes by saying: “In terms of getting to the venue on Thursday I will be relying on the people who are representing myself, so another reasons why I would like both colleagues to attend. I can get witness statements from Louise written by herself in a none biased way, however this can not now be done before Thursday. So I suggest the fairest way would be for both ladies to accompany myself.”[122]The Claimant does not state that she needs Ms. Barty to drive her to the meeting, the Claimant refers to both Kay and Louise being there to represent her. The Claimant does not ask for Ms. Barty to be permitted leave to attend.[123]Mr. Davies replied to the Claimant on 15 May 2024, and said: “Unfortunately, both colleagues cannot attend the meeting. I am aware that Kay will be in attendance as your representative which you have requested, but Louise cannot also attend. If I feel I need to speak with either of the colleagues you have mentioned as part of this process then I will do so, but this would be based on discussions within our meeting on Thursday…”[124]The Claimant was accompanied by Ms. Wolverson at the hearing. The Claimant was not able to drive herself to the meeting as she was having a flare and her husband and Ms. Wolverson was not able to drive her and therefore the Claimant used the train to get to the hearing. The Claimant wished for Ms. Barty to drive her to the hearing.[125]At the hearing Ms. Abi Turner made notes. Each allegation was discussed and the notes demonstrate the Claimant put forward her comments on any matter she wished. The Claimant denied all the allegations.[126]Mr. Davies adjourned the hearing at 12:05 and reconvened at 14:47 and explained his decision. He explained that he believed derogatory language had been used against Ms. Edwards and that language such as Hitler, Gestapo and dictatorship has been used with reference to management style. He disregarded the alleged use of the C word. He explained that he had determined that gross misconduct had taken place in breach of the respect in the workplace policy. He said that, although a dismissal offence, he had decided to issue a final written warning. He explained that he wanted to hear and conclude the Claimant’s grievance and he would hear that and wished for the Claimant to return to work the next day.[127]Mr. Davies became aware that the Claimant had raised a grievance upon review of the investigation material from Chris Titley. However, he did not read the Claimant’s grievance form or email prior to the disciplinary hearing and was not aware of the content. As noted above, the Claimant had emailed Mr. Davies on 11 May 2024 setting out her view that the grievance directly led to her suspension and disciplinary. Mr. Davies discussed the Claimant’s grievance concerns during the disciplinary hearing and agreed to hear and conclude the Claimant's grievance.[128]The Claimant was sent a disciplinary outcome letter that explained the reasons why Mr. Davies gave the Claimant a final written warning. The contents of the letter are not set out but have been considered in full. However, extracts that the Tribunal consider are central are noted below: “I noted discrepancies in the phrases recalled by those investigated, however 3 colleagues within the Newtown Store, Rebecca Vranch Jones (People Manager), Kelly Price (Manager in Charge) and Ali Howells (People Assistant) all heard you refer to Rachel Edwards negatively.” “Rebecca Vranch Jones heard you state “fucking awful woman”, Kelly Price heard you state “horrible bitch” and Ali Howells amended her statement to “fucking awful woman”. “You admitted to referring to the Newtown Store as being like a “dictatorship” when asked what it was like working in the Newtown store in your meeting with Rachel. You referred to Arvinder who suggested the word “dictatorship” to you, when you were talking about the culture in the Newtown store… To refer to a Store as a “dictatorship” is still deemed as inappropriate language”[129]The Claimant attended a grievance hearing on 23 May 2024. The hearing was conducted by Mr. Davies. Mr. Davies did not read the Claimant’s original grievance form or email. Mr. Davies considered the concerns raised by the Claimant at the disciplinary meeting and at the grievance hearing. Mr. Davies understood, from what the Claimant had said to him, that the Claimant’s main concern was in relation to being permitted to wear flip flops at work.[130]There is no reference to toilets in the notes, only brief reference to struggling with stairs which said: “I’m very open honest about my symptoms. I felt like I was being laughed at because of how I was made to feel. I couldn’t get up the stairs so I asked Cerys. I got told I had to go and get the keys, I had to struggle up the stairs here”.[131]In Mr. Davies’ witness statement he says: “I do not recall talking about the Respondent’s Key Procedure explicitly. There was a very brief point made by the Claimant about struggling to go up the stairs to the cash office and she was told she had to collect the keys, but that was it (see page 425). However, the Claimant mentioned that a colleague called Cerys collected the keys. The Claimant did not request an adjustment to the Respondent’s KeyProcedure in this meeting – the adjustments she discussed was to continue to wear flipflops and to change the way in which she swiped in and out. I therefore did not feel it was an issue as she said she had already provided a solution to this (a colleague collecting the keys).The Claimant did not discuss any concerns around using the toilets in store or request an adjustment in relation to this.”[132]The Claimant did not challenge paragraphs 29 and 30 in cross.[133]Mr. Davies clearly asked the Claimant if sorting swiping, referring her to OH and undertaking a risk assessment and reviewing reasonable adjustments and getting kick stools and ladders sorted would make the Claimant happy and she said yes. He asked her if there was anything else and she said no.[134]Mr. Davies gave the Claimant the opportunity to raise any concerns she wished.[135]Mr. Davies sent the Claimant a grievance outcome letter dated 31 May 2024. The letter explained that the main grievance points as explained by the Claimant were: 1. Being made to feel that you are unable to complete your job due to having lupus with comments such as “Jackie beleoves she has lupus” being the catalyst for this. 2. No reasonable adjustments have been put in place to support you with your condition. 3. The lack of equipment from a health and safety position within the pharmacy.”[136]The letter summarised the outcomes, one being a referral to Occupational Health, and that on days when walking to swipe would be too difficult she could sign in at the visitors book.[137]Following the grievance hearing the Claimant attended an Occupational Health appointment.[138]On 29 August 2024 the Claimant submitted an appeal in relation to her grievance. The appeal was submitted on a form and contained very little information.[139]On 25 September 2024 a grievance appeal hearing before Richard Jones took place. Mr. Jones had not read original grievance or grievance email. At paragraph 11 of his witness statement Mr. Jones sets out the discussion regarding key collection. It was at this stage that the Claimant clearly raised issues regarding collecting the key from the upstairs cash office and asked for an adjustment to be made so she didn’t have to go up the stairs to the cash office when having a flare. Mr. Jones made prompt enquiries with Fraser Frame, Senior Pharmacy Operations Manager and Arvinder Singh, Pharmacy Area Manager (“Arvinder”). It was agreed that a Duty Manager would collect the keys for the Claimant. The Claimant did not raise any issue about toilets use.[140]The Claimant attended a grievance outcome meeting on 24 October 2024. She was told that the key policy had been adjusted and that a manager could pass the keys to her.
The Law
[141]Section 13 Equality Act 2010 states: 13 Direct discrimination(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.(2) If the protected characteristic is age, A does not discriminate against B if A can show A's treatment of B to be a proportionate means of achieving a legitimate aim.(3) If the protected characteristic is disability, and B is not a disabled person, A does not discriminate against B only because A treats or would treat disabled persons more favourably than A treats B.(4) If the protected characteristic is marriage and civil partnership, this section applies to a contravention of Part 5 (work) only if the treatment is because it is B who is married or a civil partner.(5) If the protected characteristic is race, less favourable treatment includes segregating B from others.(6) If the protected characteristic is sex— (a) less favourable treatment of a woman includes less favourable treatment of her because she is breast-feeding; (b) in a case where B is a man, no account is to be taken of special treatment afforded to a woman in connection with pregnancy or childbirth.(7) Subsection (6)(a) does not apply for the purposes of Part 5 (work).(8) This section is subject to sections 17(6) and 18(7). Section 136 of the Equality Act 2010 states: 136 Burden of proof (1) This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision. (4) The reference to a contravention of this Act includes a reference to a breach of an equality clause or rule. (5) This section does not apply to proceedings for an offence under this Act. (6) A reference to the court includes a reference to— (a) an employment tribunal; (b) the Asylum and Immigration Tribunal; (c) the Special Immigration Appeals Commission; (d) the First-tier Tribunal; (e) the Education Tribunal for Wales; (f) the First-tier Tribunal for Scotland Health and Education Chamber.[142]Under section 13(1) of the Equality Act 2010 read with section 6, direct discrimination takes place where a person treats the claimant less favourably because of disability than that person treats or would treat others.[143]Under section 23(1), when a comparison is made, there must be no material difference between the circumstances relating to each case.[144]In many direct discrimination cases, it is appropriate for a tribunal to consider, first, whether the claimant received less favourable treatment than the appropriate comparator and then, secondly, whether the less favourable treatment was because of disability. However, in some cases, for example where there is only a hypothetical comparator, these questions cannot be answered without first considering the ‘reason why’ the claimant was treated as they were. (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] IRLR 285).[145]Decisions are frequently reached for more than one reason. Provided the protected characteristic had a significant influence on the outcome, discrimination is made out. (Nagarajan v London Regional Transport [1999] IRLR 572, HL).[146]The case law recognises that very little discrimination today is overt or even deliberate. Witnesses can even be unconsciously prejudiced.[147]There are two stages to the burden of proof test as set out in section 136 of the Equality Act 2010. Stage 1: There must be primary facts from which the tribunal could decide – in the absence of any other explanation, that discrimination took place. The burden of proof is on the claimant (Ayodele v(1) Citylink Ltd(2) Napier [2018] IRLR 114, CA; Royal Mail Group Ltd v Efobi [2021] UKSC 22). This is sometimes referred to as proving a prima facie case. If this happens, the burden of proof shifts to the respondent. Stage 2: The respondent must then prove that it did not discriminate against the claimant.[148]In other words, where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the respondent. It is then for the respondent to prove that it did not commit, or as the case may be, is not to be treated as having committed, that act.[149]The burden of proof provisions requires careful attention where there is room for doubt as to the facts necessary to establish discrimination, but have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or another. (Hewage v Grampian Health Board [2012] IRLR 870, SC.)[150]Guidelines on the burden of proof were set out by the Court of Appeal in Igen Ltd v Wong [2005] EWCA Civ 142; [2005] IRLR 258. Once the burden of proof has shifted, it is then for the respondents to prove that they did not commit the act of discrimination. To discharge that burden it is necessary for the respondents to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of the protected characteristic, since 'no discrimination whatsoever' is compatible with the Burden of Proof Directive. Since the facts necessary to prove an explanation would normally be in the possession of the respondents, a tribunal would normally expect cogent evidence to discharge that burden of proof.[151]The Court of Appeal in Madarassy, a case brought under the then Sex Discrimination Act 1975, states: ‘The burden of proof does not shift to the employer simply on the claimant establishing a difference in status (e.g. sex) and a difference in treatment. Those bare facts only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal ‘could conclude’ that on the balance of probabilities, the respondent had committed an unlawful act of discrimination.[152]A false explanation for the less favourable treatment added to a difference in treatment and a difference in sex can constitute the ‘something more’ required to shift the burden of proof. (The Solicitors Regulation Authority v Mitchell UKEAT/0497/12.)[153]In Glasgow City Council v Zafar 1998 ICR 120, HL, Lord BrowneWilkinson said that in the context of a discrimination claim ‘the conduct of a hypothetical reasonable employer is irrelevant. The alleged discriminator may or may not be a reasonable employer. If he is not a reasonable employer he might well have treated another employee in just the same unsatisfactory way as he treated the complainant, in which case he would not have treated the complainant “less favourably”.’ He approved the words of Lord Morison, who delivered the judgment of the Court of Session, that ‘it cannot be inferred, let alone presumed, only from the fact that an employer has acted unreasonably towards one employee, that he would have acted reasonably if he had been dealing with another in the same circumstances’. It follows that mere unreasonableness may not be enough to found an inference of discrimination. Unfair treatment itself is not discriminatory.[154]In Amnesty International v Ahmed UKEAT/0447/08/ZT the EAT stated, paragraph 36, “…the ultimate question – is – necessarily – what was the ground of the treatment complained of (or – if you prefer – the reason why it occurred)…”.[155]Evidence of discriminatory conduct and attitudes in an organization may be probative in deciding whether alleged discrimination occurred: Chief Constable of Greater Manchester Police v Bailey [2017] EWCA Civ 425. Duty to make reasonable adjustments[156]The legislation regarding complaints of a failure to make reasonable adjustments is contained within sections 20 and 21 of the Equality Act 2010.[157]Section 20 of the Equality Act 2010 states: 20 Duty to make adjustments(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A. (2)The duty comprises the following three requirements. (3)The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. (4) The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. (5) The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid. (6) Where the first or third requirement relates to the provision of information, the steps which it is reasonable for A to have to take include steps for ensuring that in the circumstances concerned the information is provided in an accessible format. (7) A person (A) who is subject to a duty to make reasonable adjustments is not (subject to express provision to the contrary) entitled to require a disabled person, in relation to whom A is required to comply with the duty, to pay to any extent A's costs of complying with the duty. (8)A reference in section 21 or 22 or an applicable Schedule to the first, second or third requirement is to be construed in accordance with this section. (9) In relation to the second requirement, a reference in this section or an applicable Schedule to avoiding a substantial disadvantage includes a reference to— (a) removing the physical feature in question, (b) altering it, or (c) providing a reasonable means of avoiding it. (10) A reference in this section, section 21 or 22 or an applicable Schedule (apart from paragraphs 2 to 4 of Schedule 4) to a physical feature is a reference to— (a) a feature arising from the design or construction of a building, (b) a feature of an approach to, exit from or access to a building, (c) a fixture or fitting, or furniture, furnishings, materials, equipment or other chattels, in or on premises, or (d) any other physical element or quality. (11) A reference in this section, section 21 or 22 or an applicable Schedule to an auxiliary aid includes a reference to an auxiliary service. (12) A reference in this section or an applicable Schedule to chattels is to be read, in relation to Scotland, as a reference to moveable property. (13) The applicable Schedule is, in relation to the Part of this Act specified in the first column of the Table, the Schedule specified in the second column. 21 Failure to comply with duty (1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments.(2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person.(3) A provision of an applicable Schedule which imposes a duty to comply with the first, second or third requirement applies only for the purpose of establishing whether A has contravened this Act by virtue of subsection (2); a failure to comply is, accordingly, not actionable by virtue of another provision of this Act or otherwise.[158]The duty to make reasonable adjustments appears in section 20 as having three requirements. In this case we are concerned with all three requirements, namely sections 20(3), 20(4) and 20(5).[159]Under section 21 a failure to comply with that requirement is a failure to comply with a duty to make reasonable adjustments and will amount to discrimination. Under Schedule 8 to the Equality Act an employer is not subject to the duty to make reasonable adjustments if the employer does not know and could not reasonably be expected to know that the claimant has a disability or that the claimant is likely to be placed at a substantial disadvantage.[160]In Environment Agency v Rowan [2008] ICR 218 it was emphasised that an employment tribunal must first identify the “provision, criterion or practice” applied by the respondent, any non-disabled comparators (where appropriate), and the nature and extent of the substantial disadvantage suffered by the claimant. Only then is the tribunal in a position to know if any proposed adjustment would be reasonable.[161]The words “provision, criterion or practice” (“PCP”) are said to be ordinary English words which are broad and overlapping. They are not to be narrowly construed or unjustifiably limited in application. However, case law has indicated that there are some limits as to what can constitute a PCP. Not all one-off acts will necessarily qualify as a PCP. In particular, there has to be an element of repetition, whether actual or potential. In Ishola v Transport for London [2020] EWCA Civ 112 it was said: “all three words carry the commutation of a state of affairs… indicating how similar cases are generally treated or how a similar case would be treated if it occurred again.” It was also said that the word “practice” connotes some form of continuum in the sense that it is the way in which things are generally or will be done.[162]The purpose of considering how a non-disabled comparator may be treated is to assess whether the disadvantage is linked to the disability.[163]Substantial disadvantage is such disadvantage as is more than minor or trivial.[164]In County Durham and Darlington NHS Trust v Dr E Jackson and Health Education England EAT/0068/17/DA the Employment Appeal Tribunal summarised the following additional propositions: - It is for the disabled person to identify the “provision, criterion or practice” of the respondent on which s/he relies and to demonstrate the substantial disadvantage to which s/he was put by it; - It is also for the disabled person to identify at least in broad terms the nature of the adjustment that would have avoided the disadvantage; s/he need not necessarily in every case identify the step(s) in detail, but the respondent must be able to understand the broad nature of the adjustment proposed to enable it to engage with the question whether it was reasonable; - The disabled person does not have to show the proposed step(s) would necessarily have succeeded but the step(s) must have had some prospect of avoiding the disadvantage; - Once a potential reasonable adjustment is identified the onus is cast on the respondent to show that it would not been reasonable in the circumstances to have to take the step(s); - The question whether it was reasonable for the respondent to have to take the step(s) depends on all relevant circumstances, which will include: The extent to which taking the step would prevent the effect in relation to which the duty is imposed; The extent to which it is practicable to take the step; The financial and other costs which would be incurred in taking the step and the extent to which taking it would disrupt any of its activities; -The extent of its financial and other resources; The availability to it of financial or other assistance with respect to taking the step; -The nature of its activities and size of its undertaking; - If the tribunal finds that there has been a breach of the duty; it should identify clearly the “provision, criterion, or practice” the disadvantage suffered as a consequence of the “provision, criterion or practice” and the step(s) the respondent should have taken.[165]What adjustments are reasonable will depend on the individual facts of a particular case. The Tribunal is obliged to take into account, where relevant, the statutory Code of Practice on Employment published by the Equality and Human Rights Commission. Paragraphs 6.23 to 6.29 give guidance on what is meant by reasonable steps. Paragraph 6.28 identifies some of the factors which might be taken into account when deciding whether a step is reasonable. They include the size of the employer; the practicality of the proposed step; the cost of making the adjustment; the extent of the employer’s resources; and whether the steps would be effective in preventing the substantial disadvantage.[166]An important consideration is the extent to which the step will prevent the disadvantage. Although the Equality Act 2010 uses the term “avoid”, this is not an absolute test. (The position is different in auxiliary aid cases where the employer has to take such steps as it is reasonable to take to have to provide the auxiliary aid).[167]A failure to consider whether a particular adjustment would or could have removed the disadvantage amounts to an error of law: Romec Ltd v Rudham [2007] All ER(D) (206) (Jul), EAT. The Court of Appeal put the matter this way in Griffiths v Secretary of State for Work and Pensions [2017] ICR 160: “So far as efficacy is concerned, it may be that it is not clear whether the step proposed will be effective or not. It may still be reasonable to take the step notwithstanding that success is not guaranteed; the uncertainty is one of the factors to weigh up when assessing the question of reasonableness.”[168]Broadly speaking, and all other things being equal, the more effective the adjustment is likely to be the more likely it is to be a reasonable adjustment; the less effective it is likely to be, the less likely it is to be reasonable. Effectiveness must be assessed in the light of information available at the time, not subsequently: Brightman v TIAA Ltd UKEAT/0318/192 July 2021 (paragraph 42).[169]The second requirement in section 20 is to make adjustments to the physical features of premises if they create substantial disadvantage.[170]Those features are defined in section 20(10) as including the design or construction of a building, features of the approach to, exit from or access to a building, and any fixtures, fittings, furniture, materials, equipment in or on the premises.[171]An auxiliary aid is a piece of technology or equipment intended to assist a disabled person. Examples include induction loops and special software.[172]Under section 20(11) it also includes an auxiliary service. The Code (paragraph 6.13) suggests this could include provision of a sign language interpreter or a support worker for a disabled person. Harassment[173]Section 26 of the Equality Act 2010 sets out:(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.(2) A also harasses B if— (a) A engages in unwanted conduct of a sexual nature, and (b) the conduct has the purpose or effect referred to in subsection (1)(b).(3) A also harasses B if— (a) A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex, (b)t he conduct has the purpose or effect referred to in subsection (1)(b), and (c) because of B's rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the(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.(5) The relevant protected characteristics are—• age;• disability;• gender reassignment;• race;• religion or belief;• sex;• sexual orientation.[174]Although harassment is similar to direct discrimination it covers actions “related to” a protected characteristic, which goes further than “because of”.[175]When considering whether a claimant’s dignity has been violated or an intimidating, hostile, degrading humiliating or offensive environment has been created, it must be kept in mind that it is not enough that the conduct was simply upsetting.[176]When considering effect it must be considered whether it was reasonable for the conduct to have had the effect taking in to account both a claimant’s perception and the overall circumstances Victimisation[177]Section 27 Equality Act 2010 states: Victimisation(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (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.(3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.(4) This section applies only where the person subjected to a detriment is an individual.(5) The reference to contravening this Act includes a reference to committing a breach of an equality clause or rule.[178]The law on victimisation is designed to make sure that employees can raise concerns about discrimination without fear of repercussions. Victimisation has a specific legal meaning.[179]A claimant is protected when he or she complains about discrimination even if they are wrong and there has been no discrimination. However, a claimant is not protected if they made an allegation in bad faith, namely they did not really believe it was discrimination.[180]In considering the link between the protected act and the detriment a Tribunal needs to consider how to interpret the word ‘because’ in section 27. The law requires more than a ‘but for’ link: it is not enough to say that, if the Claimant had not made the complaints, then the bad treatment would not have happened.[181]The Tribunal must consider what was in the mind of the decision maker, consciously or subconsciously. Chief Constable of West Yorkshire v Khan [2001] ICR 1065 HL suggests must find the ‘core reason’ or the ‘real reason’ for the act or omission. The Equality and Human Rights Commission Code at paragraph 9.10 also makes it clear that the protected act need not be the only reason for the decision.[182]The person who subjects a claimant to a detriment needs to have known that the claimant did the protected act.[183]The EHRC Employment Code, drawing on the case law under the previous discrimination legislation, contains a useful summary of treatment that may amount to a ‘detriment’: ‘Generally, a detriment is anything which the individual concerned might reasonably consider changed their position for the worse or put them at a disadvantage. This could include being rejected for promotion, denied an opportunity to represent the organisation at external events, excluded from opportunities to train, or overlooked in the allocation of discretionary bonuses or performance-related awards… A detriment might also include a threat made to the complainant which they take seriously and it is reasonable for them to take it seriously. There is no need to demonstrate physical or economic consequences. However, an unjustified sense of grievance alone would not be enough to establish detriment’.
Conclusions
[184]The Tribunal reached unanimous conclusions.[185]The Tribunal reached its conclusions based on the facts as found on the evidence presented and by applying the relevant legal principles.[186]The conclusions are set out in the order of the list of issues. Direct disability discrimination (Equality Act 2010 section 13)[187]The Claimant alleges that the Respondent treated her less favourably because of her disability as the Claimant’s disability was disclosed to the whole store management team, including team leaders, on 28 February 2024 without her permission.[188]This allegation remains vague, it is not clear precisely who the Claimant says her disability was disclosed to, and she has not specified who she says disclosed it, but during the hearing said she thought it was likely to be Mr. Benn or Ms. Vranch.[189]As set out in the findings of fact above, the Tribunal found that it was likely that some of the management team were told the Claimant needed to post her signing in and out times on a management group chat for disability.[190]On the allegation as specifically framed, and the evidence presented, the Tribunal could not make a firm conclusion that the whole store management team, including team leaders, were told about the Claimant disability, lupus.[191]However, as it found that at least some of the management team were told about signing in, and this was likely to be due to disability, it went on to consider whether there was less favorable treatment.[192]The Tribunal considered whether there were any inferences that could be drawn to infer whether there was a discriminatory attitude in the workplace. At this time, 28 February 2024, it did not consider there to be any such inference . As noted, the Claimant wore flip flops, some members of management were aware she had Lupus from 2022 and wearing flip flops had been permitted and there are no documented issues of any difficulties associated with the Claimant’s disability, or treatment towards her, from 2022 to 28 February 2024. It was noted the Claimant has at other times said she is open about her symptoms. The email exchanges with Ms. Vranch in close proximity to the discussions on 28 February indicate Ms. Vranch was seeking to support the Claimant at this time. The email sent by Ms. Vranch to a people colleague on 22 April 2024 has been noted, and although the Tribunal do not consider this to be a professional communication it does not consider it infers any discriminatory attitude and note it relates to events flowing from the incident on 16 April 2024.[193]The Tribunal considered whether the Claimant had discharged the burden on her to show evidence from which the Tribunal could reasonably conclude that the Claimant’s disability was disclosed to the store management team, including team leaders was ‘because of” disability. It kept in mind this is an allegation of direct discrimination, it is not an allegation of harassment.[194]The Tribunal concluded that there was not sufficient evidence to discharge the burden on the Claimant. There was no evidence from which the Tribunal could reasonably conclude that the Claimant’s disability was the reason why. The Trubunal consider that the Respondent, via Ms. Vranch and Mr. Benn at the time, were seeking to manage the sign in situation to ensure there was an adequate record of everyone working in the pharmacy, and this included the Claimant. There is no prima facie case of disability discrimination.[195]The Claimant has failed to show that the Respondents treated her less favourably than a hypothetical comparator.[196]The Tribunal did not consider there to be something more in this case that shifted the burden of proof to the Respondent.[197]However, in case it was wrong on this, and the burden of proof shifted to the Respondent, it considered whether there was a nondiscriminatory explanation, namely that set out above, which is Respondent seeking to manage a system of adequate signing in of pharmacy based staff. Reasonable Adjustments (Equality Act 2010 sections 20 & 21)[198]The Respondent had knowledge of the Claimant’s disability from at least August 2021.[199]The Tribunal dealt with each alleged failure in turn.[200]The Claimant alleges that the Respondent has a policy that the pharmacist must attend the cash office every day to collect the keys for the pharmacy.[201]The Respondent admits that this is a PCP.[202]The Claimant says this PCP put her at a substantial disadvantage compared to someone without the Claimant’s disability, in that the cash office is upstairs and there is no lift, and the Claimant struggles with stairs.[203]The Respondent accepts the PCP caused the Claimant substantial disadvantage.[204]The Claimant says that a step that could have been taken was to not require her to collect the keys personally from the cash office.[205]The Respondent submits there was an adjustment all along (other people had been collecting the keys), and alternatively that an adjustment was made when it was clearly expressed as being needed.[206]The Respondent submits that although it knew the Claimant had lupus it says it says it did not have knowledge that the PCP disadvantaged the Claimant. It submits the Claimant never raised her difficulty walking up the stairs with the Respondent formally and raised this only in brief and passing from 28 February 2024. It submits that the Claimant never set out any request for an adjustment to be made to the key collection policy so that the Claimant did not have to go up the stairs and it was Mr. Jones who made the suggestion on 25 September 2024, and that a change to the policy was considered and implemented by November 2024 at the latest.[207]It was submitted that a step, an adjustment, cannot be reasonable if the employee has not requested it.[208]The Claimant submits that the Respondent knew she struggled with the stairs and it was a reasonable adjustment to make.[209]In considering whether the Respondent knew or could reasonably have been expected to know that the Claimant was likely to be placed at the disadvantage the Tribunal noted that, as set out in the facts, the Claimant collected the keys as the Responsible Person, or this was done by a locum. It was necessary to have a secure key collection and storage process.[210]In the discussion on 28 February 2024 the Claimant referred to collecting the keys from the staff office as being enough, but Ms. Vranch in her witness statement appears to have understood this as she struggled with the stairs. The Claimant also made a brief refence to struggling with stairs within the email of 20 March 2024.[211]However, she was not clear, and did not provide details about flare ups and impact. As set out above, the Claimant only mentioned in passing her finding the stairs a challenge and did not discuss this or set this out in any clear detail until discussion with Mr. Jones in September 2024.[212]However, on balance, given the Claimant does say she has issues with stairs and this appears to have been understood by Ms. Vranch, the Tribunal conclude that the Respondent should have reasonably known she was disadvantaged from 28 February 2024.[213]Was it reasonable to take the step and when?[214]The Tribunal considered all the evidence in determining this, and in particular the fact the Claimant had not been clear that she was seeking an adjustment, and in essence had been managing the key collection without raising any concern for several years.[215]In view of the size and resources of the Respondent, the Tribunal consider that taking a step that meant the Claimant did not need to go up the stairs to collect the pharmacy keys was a reasonable step. However, it was not reasonable to take such a step until it was clear that this was something the Claimant was actually seeking and required. This only became clear in the grievance appeal meeting 24 September 2024. Following it becoming clear this was being sought the Respondent looked at what could be out in place to properly manage the pharmacy key handover.[216]The Tribunal do not consider it to be any fault of the Respondent that this request was not made sooner. The Claimant could have clearly set out the request in writing or raised in clear terms in the discussions with Ms. Vranch, Mr. Buckley, Ms. Edwards and Mr. Davies, or indeed sooner.[217]The Tribunal were not able to make any precise finding on what date the adjustment got put in place on the evidence presented. However, by the latest date it was in place from mid-November 2024. The Tribunal do not consider there was any inappropriate delay once it was clear the step could work in accordance with the requirements for holding pharmacy keys safely.[218]The allegation fails.[219]The Claimant alleges that the Respondent’s Newtown store has a physical feature, namely the staff disabled toilet being at the back of the store while the pharmacy is at the front, that put the Claimant at a substantial disadvantage compared to someone without the Claimant’s disability, in that due to her disability she struggles to walk that distance. 220.[221]The Claimant says a step to avoid the disadvantage was to allow her to use the customer disabled toilet next to the pharmacy.[222]The Respondent accepts the location of the toilet but submits the Claimant was never prevented from using the customer toilet and therefore the adjustment now sought had been in place. The Claimant says pharmacy staff were not allowed to use the customer toilet.[223]Did the Respondent know or could it reasonably have been expected to know that the Claimant was likely to be placed at the disadvantage?[224]The Tribunal found, as a finding of fact, that the Claimant did not raise clearly, at any time, her concerns about the location of the staff toilet with the Respondent. Accordingly, we do not consider that the Respondent could have reasonably known that the Claimant was disadvantaged.[225]Was it reasonable to take step and when?[226]On the evidence presented, the Tribunal does not conclude that the Claimant was prevented from using the customer toilet. It concluded that the preference was for staff to use the staff toilet.[227]The Tribunal consider that the Claimant, and other staff, have always been permitted to use the customer toilet, if needed.[228]Allowing staff to use a customer toilet when needed is something the Tribunal consider reasonable, but an adjustment that has always been in place.[229]The allegation fails.[230]The Claimant says the lack of an auxiliary aid, namely a companion at the disciplinary hearing, put the Claimant at a substantial disadvantage compared to someone without the Claimant’s disability, in that she needed help from the companion to get to the hearing?[231]As a finding of fact it has been determined that the Claimant was allowed a companion at the disciplinary hearing. This allegation fails factually.[232]For completeness, the Tribunal understand that during the course of the hearing the Claimant appeared to be asserting that she needed Ms. Barty to drive her to the hearing and that she requested this and her request was refused. As set out in the findings of fact, the Tribunal have carefully considered her emails to Mr. Davies on both 11 and 14 May 2024 and do not consider there to be any clear request for Ms. Barty to be granted leave to enable her to drive the Claimant to the meeting. This is not what the email says.[233]There was no request and there was no refusal.[234]The allegation fails. Harassment related to disability (Equality Act 2010 section 26)[235]We have dealt with each allegation of harassment in turn, with reference to the numbering in the list of issues. 236. 4.1.1 - On 28 February 2024, Tom Benn and Rebecca VranchJones: 4.1.1.1 Questioned the Claimant’s disability (Tom allegedly laughed and said that he basically couldn’t understand why someone couldn’t walk to the back of the shop and if the Claimant was that disabled, why was she working in the first place)?[237]As set out in the findings of fact above, the Tribunal did not find that Mr. Benn questioned the Claimant’s disability, (that he allegedly laughed and said that he basically couldn’t understand why someone couldn’t walk to the back of the shop and if the Claimant was that disabled).[238]Accordingly, this allegation fails factually. 239. 4.1.1.2 - Tom questioned why the Claimant could not walk to the clocking in machine (located on the ground floor and at the back of the shop while the pharmacy is at the front) while Rebecca added that the Claimant could walk to back of the shop that day for the meeting so she couldn’t understand why the Claimant couldn’t walk to the clocking in machine?[240]As set out in the findings of fact above, the Tribunal did not find that what was alleged to have been said at 4.1.1.2 by Mr. Benn was said. Accordingly, this allegation fails factually.[241]In relation to the allegation about Ms. Vranch, the Tribunal found that she asked a question and the specific comments as alleged to have been made were not. Accordingly, this allegation fails factually. 242. 4.1.1.3 - Questioned the Claimant’s choice of footwear – Tom said that he didn’t understand how wearing flip-flops could make it any easier to walk and Rebecca questioned why the Claimant did not try any other shoes and said if she was wearing flip-flops, the Claimant could not do her job?[243]The Tribunal did not find that the alleged comments were made, this allegation fails factually. 244. 8.1.2 On 29 February 2024, Tom Benn in the pharmacy in the presence of Cerys Jones and Louise Barty said “Just because you have a disability, it doesn’t make a difference. It’s still policy to sign in”.[245]As set out in the findings of fact, the Tribunal did not find the exact wording as alleged here were said, but did find that Mr. Benn said that the Claimant had to sign in and was no different.[246]As there is significant similarity to what was found was said and the allegation the Tribunal went on to consider if this comment was unwanted[247]The Tribunal conclude that such a comment was unwanted.[248]The Tribunal considered whether it was related to disability, and on balance noting the evidence of the Claimant and Ms. Barty and the conversation related to adapting sign procedures concluded that it was related disability.[249]The Tribunal are not able to reach any conclusions on the purpose of the unwanted conduct in the absence of evidence from Mr. Benn.[250]The Tribunal considered whether the comment had the effect of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive for the Claimant.[251]The Tribunal concluded the Claimant was upset by what Mr. Benn had said to her, as evidenced by Ms. Barty. However , it noted she did not raise this discussion or comment in her email to Ms. Vranch later that morning. The Tribunal do not consider the comment violated the humiliating or offensive for the Claimant, this requires more than being upset.[252]Further, taking into account the Claimant’s perception, and the other circumstances of the case, in particular that the Claimant was aware that Mr. Benn and Ms. Vranch were seeking to support the Claimant and arrange a welfare meeting and had already taken steps to assist in relation the pharmacy generally by providing ladders, the Tribunal do not consider the comment could reasonably have the effect of violating the Claimant’s[253]Allegation fails. 254. 8.1.3 - Formal grievance raised on 19 March 2024 did not follow the timescales in the formal grievance policy.[255]It is clear that the Claimant submitted a grievance using the Respondent’s link accessed under a section in the grievance policy under formal grievances. The Claimant then sent a four page grievance email. Parts of the content of the grievance email do not appear to have been raised by the Claimant informally in the first instance.[256]The Grievance Policy provides guidance on managing grievances.[257]Ms. Edwards determined that it would be appropriate for Mr. Buckley to speak with the Claimant to see if the grievance could be resolved informally. The Claimant does not consider this to be in accordance with Respondent’s policy.[258]Mr. Buckley did speak with the Claimant about her concerns on 28 March 2024, and he understood that the Claimant had agreed to work through her concerns with him informally. He reported this to Ms. Edwards, and accordingly, the Respondent considered that the grievance had been resolved without the need for any further formal process.[259]Indeed, this appears to have been the case, it appears that relations were improving until the incident on 16 April 2024. It was only later, after the suspension and commencement of the disciplinary action that the Claimant said she considered her grievance to be outstanding.[260]The Tribunal acknowledge that a formal grievance hearing was not held within 14 days, or soon after, as referenced in the grievance policy. However, this is because the Respondent did not consider there to be a need for a formal hearing following the discussion on 28 March 2024.[261]Further, it is noted that a grievance hearing, and then a grievance appeal hearing, did take place. Although the original grievance documents were not read, the Claimant had the opportunity to say whatever she wished at those hearings.[262]The Tribunal is only making a determination on the allegation of harassment as pleaded. However, the Tribunal does consider that clearer communications in relation to the attempts to resolve and manage the grievance may have been helpful.[263]In the circumstances, the Tribunal do not consider the allegation of harassment, not following the timescales, to be unwanted conduct where there was initial acceptance to deal with matters informally.[264]Further, the Tribunal do not consider not following the timescales to be related to disability. The reason why a formal hearing did not take place within 14 days, or soon after, is explained above, because the Respondent thought there was an agreement to resolve informally, this is not related to disability. The fact the grievance is about disability related concerns does not mean this allegation of harassment is related to disability.[265]In any event, for completeness, the Tribunal considered that if the conduct had been related to disability the allegation would have still failed as it did not consider the conduct had the purpose of violating the humiliating or offensive for the Claimant. The timescales were not adhered to for the purpose to seeking to resolve disputes and although it understands that the Claimant has later become upset by a formal grievance hearing not taking place sooner, taking into account both the Claimant’s perception and the other circumstances of the case, namely what she knew and understood at the time, it did not consider it was reasonable for the conduct to have that effect of violating the Claimant’s[266]Allegation fails. 267. 8.1.4 - The Claimant’s grievance was disclosed on or around the w/c 25 March 2024 to Alison Howells, Tom Benn, Rebecca Vranch-Jones, Kraig Buckley & Kelly Price by Rachel Edwards.[268]As set out in the findings of fact, Ms. Edwards did not disclose the Claimant’s grievance to all the people listed in this allegation, but only some, namely Mr. Buckley and Ms. Howells. The persons that Ms. Edwards sent the grievance to were persons involved in the running of the store and HR. The Tribunal do not consider this to be unwanted conduct in relation to the disclosure.[269]Although the Claimant had submitted her grievance on a formal form and marked her email private and confidential the concerns needed to considered. Mr. Buckley was mentioned, in brief, in the grievance, however, although the Claimant has subsequently alleged that the disclosure to him was harassment, at the time, it appears a sensible and productive discussion took place with Mr. Buckley and concerns had been resolved informally.[270]In any event, even if this was unwanted conduct, the Tribunal did not consider it was related to disability. Ms. Edwards forwarded the grievance in order to try and resolve the Claimant’s concerns.[271]The forwarding on did not have the purpose of violating the humiliating or offensive for the Claimant, as above, it was for the purpose of trying to resolve the Claimant’s concerns and the Tribunal do not consider it had the effect. Relations seemed to have improved following the discussion between Mr. Buckley and the Claimant and we were not directed to the Claimant raising any concerns about the disclosure at the time.[272]Allegation fails. 273. 8.1.3 - On a manager’s WhatsApp group chat, where it had previously been agreed at the meeting on 28 February that the Claimant would notify managers that she was in the store (or not) rather than using the clocking-in machine, Kraig Buckley posted a emoji of a crown after the Claimant posted whether she was in or not on 7 March 2024, implying that the Claimant was a drama queen.[274]As set out in the findings of fact, Mr. Buckley did send the Claimant a message with a crown within it. The Tribunal accepts this was an error.[275]The Tribunal appreciate that the Claimant was upset by the crown emoji as she interpreted it as meaning she was considered a drama queen and it was unwelcome, and therefore unwanted conduct.[276]The Tribunal went on to consider if it was related to disability. The Tribunal do not consider the accidental posting was related to disability. It considered the Claimant’s submissions that it was related to disability because she has lupus and needs to wear flip flips and cannot walk to the swiping in machine and this has meant that the staff at the Respondent consider her to be a drama queen. The Tribunal do not consider Mr. Buckley posted the emoji for any reason related to disability, as explained, it accepted that it was an error, and indeed note that following discussion on 28 March 2024 when Mr. Buckley explained the error the matter seemed to have resolved.[277]However, for completeness, the Tribunal observed that if the conduct had been related to disability the allegation would have still failed as it did not consider the conduct had the purpose of violating the humiliating or offensive for the Claimant, it was done in the context of Mr. Buckley sending a simple acknowledgement email and in using an emoji in error.[278]Further, although we understand that the Claimant has said she was upset by the use of the emoji, and that she considers using emojis to be unprofessional, taking into account both the Claimant’s perception and the other circumstances of the case, we did not consider it was reasonable for the conduct to have that effect of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive for the Claimant.[279]Allegation fails. 280. 8.1.4 - Described as “difficult” by Rachel Edwards in her witness statement for the disciplinary (the Claimant says she was upset about why her grievance was not heard)[281]The Claimant alleges that Ms. Edwards described her as “difficult” in her witness statement. As set out in the findings of fact above, there are two parts in the statement that refer to the Claimant being difficult. The first is clearly relaying a report from Ms. Vranch that she felt the Claimant was being difficult. The Tribunal consider the second reference is in relation to the Claimant’s behaviours, that had been reported to Ms. Edwards, noting she had only met her for the first time on 16 April 2024.[282]The Claimant does not accept that she was behaving in a difficult way and referred to there only being three email exchanges with Ms. Vranch, but this is the view that Ms. Vranch had formed after the emotional meetings on 28 February 2024 and the Claimant’s responses to her attempts to engage.[283]The Tribunal consider that being described as difficult is unwanted[284]The Tribunal did not consider the description of difficult as stated by Ms. Edwards in her disciplinary investigation to be related to disability. It considered that the Claimant was described as difficult due to her communication behaviours on 28 February 2024 and the tone of her emails and the apparent reluctance to engage with Ms. Vranch.[285]The allegation fails.[286]However, for completeness, it observed that if the conduct had been related to disability the allegation would have still failed as it did not consider the conduct had the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive for the Claimant, it was done in the context of Ms. Edwards responding to questions in a disciplinary fact finding interview.[287]Further, although we understand that the Claimant has now been upset by reading the description of her, which is understand may be unpleasant, taking into account the Claimant’s perception, the other circumstances of the case, the Tribunal did not consider it would have reasonable for the conduct to have that effect of violating the Claimant’s 288. 8.1.5 - Ms Edwards also said in that witness statement that the Claimant “believed she had lupus and could not go to the clock in machine but could come to a meeting”.[289]The words as alleged to have been said by Ms. Edwards as set out in this allegation were not said. As set out in the findings of fact above, what Ms. Edwards actually said was: “I believe she has lupus but it was never discussed”.[290]The words alleged to be harassment were not said, this allegation fails factually. 291. 8.1.6 - Kraig Buckley in his disciplinary witness statement “Jackie believes that she has lupus and that’s why she can’t swipe in”.[292]The words as alleged to have been said by Mr. Buckley as set out in this allegation were not said.[293]As set out in the findings of fact above, what Mr. Buckley actually said was: “Jackie doesn’t believe she can swipe in because of her lupus”.[294]The words alleged to be harassment were not said, this allegation fails factually. Victimisation (Equality Act 2010 section 27)[295]The Claimant relies on her formal grievance that she raised on 19 March 2024 as a protected act. The Respondent accepts this amounts to a protected act.[296]The Claimant says she has been subjected to detriment by the Respondent suspending her, by starting disciplinary action on 19 April 2024 and by imposing a written warning. The Tribunal addressed each alleged detriment in turn.[297]The Claimant was suspended on 16 April 2024 by Mr. Buckley.[298]It considered that suspending the Claimant, even though it was on full pay, was a detriment.[299]The Tribunal do not consider the Claimant was suspended because of, or in any way related to, her grievance on 19 March 2024.[300]As set out in the suspension letter, the Claimant was suspended because of the events on 19 April 2024, namely because Mr. Buckley had concerns about the Claimant's behavior and inappropriate language on 19 April 2024 and had determined that it was appropriate to suspend and enable an investigation to take place. There is no evidence to support a conclusion, based on the facts, that the Claimant’s grievance had any bearing on the decision to suspend, indeed, Mr. Buckley considered that the grievance had been resolved informally and relations were improving.[301]This allegation fails.[302]The Claimant says she has been subjected to detriment by the Respondent starting disciplinary action on 19 April 2024.[303]As set out immediately above, Mr. Buckley made the decision to suspend to enable an investigation to take place. The Tribunal note that it was determined that the matter proceed to a disciplinary hearing after Mr. Titley completed his investigation.[304]For the same reasons as set out in relation to suspension above, the Tribunal do not consider that disciplinary action was because of, or in any way related to, her grievance on 19 March 2024. The suspension was for the reasons set out above, and disciplinary action continued in the form of an investigation and then a disciplinary hearing to consider allegations of gross misconduct. As set out above, there is no evidence to support a conclusion that the disciplinary action was because of the Claimant’s grievance.[305]This allegation fails.[306]Mr. Davies issued the Claimant with a final written warning on 16 May 2024.[307]The Tribunal consider that being issued with a written warning does constitute a detriment and went on to consider if the protected act was the reason why Mr. Davies issued a written warning.[308]At the hearing, and in the outcome letter, he explained the reasons for issuing the written warning. In essence, Mr. Davies, after a thorough disciplinary hearing, concluded that: The Claimant had referred to Ms. Edwards in a derogatory manner, and reached these conclusions having specifically noted the discrepancies in the actual words used as described in the statements; and The Claimant had used derogatory language when referring to the Newtown store management as a dictatorship.[309]In view of these findings Mr. Davies considered it appropriate to issue a final written warning.[310]The Claimant, during the hearing, sought to highlight that there were inconsistencies in the alleged comments she was said to have made on 16 April 2024. However, the Tribunal noted that Mr. Davies specifically acknowledged and considered this as part of reaching his conclusions. At the point of issuing the final written warning Mr. Davies was aware of the Claimant’s grievance, but had not read her original grievance form and email at the time of issuing the written warning his understanding of the Claimant’s grievance concerns were based on what the Claimant told him during the disciplinary meeting.[311]There is no evidence to support a conclusion, based on the facts, that the Claimant’s grievance had any bearing on the decision to issue a final written warning.[312]This allegation fails. Approved by: