[1]The claimant’s claim for direct and indirect sex discrimination is dismissed on withdrawal by the claimant.[2]The claimant’s claim for direct disability discrimination is not well founded and is dismissed.[3]The claimant’s complaint for discrimination arising from disability regarding the refusal to permit rescindment of her resignation is well founded and succeeds. The other complaints are not well founded and are dismissed.[4]The claimant’s claim for failure to make reasonable adjustments is not well founded and is dismissed.[5]The remedy is to be decided at a separate remedy hearing.
REASONS
[1]The ET1 was presented on 29 November 2022. Early conciliation commenced on 20 September 2022 and the certificate was issued on 1 November 2022.[2]The claimant brought claims of direct discrimination on the grounds of disability and sex, discrimination arising from disability, failure to make reasonable adjustments and indirect sex discrimination. The direct and indirect sex discrimination claims were withdrawn by the claimant on 21 May 2024 and are dismissed above upon this withdrawal.
The hearing
[3]The hearing was originally listed to take place 8-12 January 2024. The hearing was postponed on 10 January 2024 due to the claimant’s health. Additional reasonable adjustments were discussed and agreed with the parties to enable the claimant to continue to give evidence. The claimant was provided with questions in advance and attended the hearing centre to give live evidence which was recorded and then transcripts provided an agreed. The Tribunal sat on 4 Match 2024 to review the transcripts and draft any questions arising to the claimant. The claimant’s evidence was completed on 4 March 2024. The hearing then continued on 14,15, 20 and 21 May 2024 with the Respondent’s evidence and submissions. The Tribunal reserved their decision. Documents, witnesses and list of issues[4]There was an agreed bundle, updated for the May dates of 788 pages. The respondent was granted permission to adduce new documents namely calendar entries for Ms Jessop and her PA, Ms Templar. The claimant was permitted to produce further calendar entries and provide a supplementary statement addressing the new documents.[5]The Tribunal heard from the following witnesses: For the claimant: The claimant and Mr B Bradley For the respondent: Ms A Jessop (CEO); Mr R Smith (Head of Human Resources); Ms N Howell (Chief commercial Officer for Consumer Business Division)[6]A list of issues was understood to have been agreed by the parties on the first day save for one minor point. This was titled “Agreed Amended List of Issues 24 May 2023”. The point of disagreement was the inclusion of 11.1 concerning whether one of the legitimate aims was within the ambit of the amended response. This was resolved as Judge Ryan had permitted the amendment application setting out this legitimate aim. It was therefore understood this list of issues to be agreed.[7]On 20 May 2024 Ms Moss produced a different list of issues titled “Amended list of issues drafted by the respondent for the preliminary hearing on 18 May 2023 incorporating some of the changes suggested by the claimant”. This was on point of submissions. This took some discussion given the previous understanding of the other list of issues. It was clarified that the respondent had agreed the 24 May 2023 list of issues save for 11.1. The 24 May 2023 list of issues therefore stood as the final list save that the section regarding S207 TULCRA would be reserved to remedy, in the event the claimant succeeded in any of her claims. Reasonable adjustments
The Law
[8]Reasonable adjustments for the claimant had been discussed and agreed at a previous preliminary hearing before Judge Ryan. These were recorded as breaks every 90 minutes and that the claimant would be permitted to have a flask whilst giving evidence to take caffeine.[9]At the outset of the hearing on 8 January 2024 the Tribunal discussed whether any further adjustments were required. It was agreed that the following further adjustments would be made:a. The claimant would have time to pause and respond to questions;b. The Tribunal and Counsel for the respondent would be ready to calmly repeat any instructions and / or questions;c. There would be increased short breaks and it was stressed the claimant could request a break outside planned breaks.
Conclusions
[10]On 10 January 2024 the Tribunal decided to postpone the final hearing as the claimant was not well or fit enough to continue and this was in the interests of justice as cogent evidence could not be given by the claimant. The following orders were made to enable the claimant to continue to give evidence and for the hearing to be relisted.[11]Regard was had by the parties and the Tribunal to the Equal Treatment Bench Book and in particular Chapter 4. After considerable discussion it was discussed that three dates would be allocated for the claimant to attend the hearing centre and continue her evidence in an allocated booth where the evidence could be recorded. The respondent provided their remaining written cross examination questions to the claimant on each morning copied to the Tribunal.[12]The claimant could be accompanied for welfare support but that person was not present in the allocated booth for giving her evidence. The claimant was provided with a suitable private room containing the following: note pad and pen, clean copy of the bundle, witness statements, cast list and agreed chronology and a copy of the respondent’s advance written questions.[13]Suitable warnings were given regarding non- use of mobile phones and not discussing evidence with anyone during this procedure.[14]The claimant read through each question in turn and recorded her answers on Teams. The Teams recording and transcript were made available by the Tribunal to the parties’ representatives who had to agree transcripts.[15]The transcripts of all the evidence was then included in the updated bundle.
Findings of fact
[16]We make the following findings of fact on the balance of probabilities.[17]The respondent is a private limited company wholly owned by HM Treasury. The board is made up of executive and non executive directors. There is an executive team comprising of eight functional directors and division heads.[18]The claimant commenced employment with the respondent on 5 January 2009 initially as Head of HR Business Partnering. She reported to Ms Jessop who at that time was Director of HR and Safety Health and Environment. In 2015 the claimant was promoted to the role of Director of HR reporting to Ms Jessop who was subsequently made CEO.[19]The claimant’s director service agreement provided termination by either party had to be by prior notice in writing. The period of notice required from the claimant to terminate was three months.
Findings of fact
[20]The claimant was highly regarded as a hard and motivated worker. She had a tendency to be disorganised and would struggle with planning. She also sought more responsibility beyond her remit and on occasions had difficulty in accepting she would not have capacity and be reluctant to relinquish control. The claimant and other witnesses said she “wore her heart on her sleeve”. There would be occasions, particularly from 2019 onwards where the claimant did not always behave appropriately at work becomes sometimes blunt, overly assertive sometimes aggressive, shout at people and storm out of meetings. Ms Jessop and Mr Smith became adept in recognising the claimant was not feeling herself because she became obviously emotional or aggressive.[21]The respondent provides a range of support to employees who have a medical condition or disability. There is an employee assistance program (EAP). The counselling service begins with an initial telephone call and then a referral as required; employees are entitled to six free counselling sessions and these can then be extended by agreement. They also have mental health first aiders (MHFA) which is essentially a signposting support mechanism. The respondent will also and has covered the cost of additional medical support such as specialist diagnosis. The claimant as HRD would have been aware of these arrangements. The claimant’s disabilities[22]It was accepted by the respondent that the claimant was disabled in respect of the impairments of depression and anxiety and ADHD. The respondent accepted knowledge of depression and anxiety from around 2013 and knowledge of ADHD diagnosis from January 2022. Previous resignations[23]In February 2019 the claimant’s mother passed away. In September 2019 her mother in law also passed away. Following an executive team meeting, the claimant broke down and fell out with colleagues at work describing that she had “exploded”, sworn and offered to resign. At the said meeting the claimant was unable to express her views in a coherent way and had an emotional meltdown. Ms Jessop refused to accept the claimant’s resignation as she recognised she was unwell.[24]Following this the claimant took time off work and participated in mediation with the executive with whom she had disagreed.[25]The second time the claimant attempted to resign was in September 2021.[26]It was not disputed that the claimant had developed fixations or obsessions with members of staff if she perceived they were not performing well. The management team including Ms Jessop had to intervene and assist managing the individual. The Tribunal were told about two examples of this behaviour. The first individual was eventually exited from the business after the mediation referenced above. The second was an individual we shall refer to as “M”. The claimant developed a fixation with M and refused to work with this person. This made the executive team work very awkward and Ms Jessop had to step in and act as an intermediary. This culminated in February 2021 when the claimant approached Ms Jessop in a simar way as discussed above, sobbing uncontrollably and said she could no longer work with M, it was making her ill and said if he was not sacked she would leave. As M was about to be made permanent from an interim role, the claimant said she would resign if the role was made permanent. The claimant took time off work. Ms Jessop refused the accept the resignation again recognising the claimant was unwell and the respondent agreed to delay making the role permanent as a result, albeit this was eventually resolved and the claimant returned to work. Pay awards[27]The respondent undertook benchmarking in respect of the salaries of the senior leadership team and salaries were generally in the lower quartile of the market rate, according to Mercer data in the bundle. Any increase of over 5% required being able to show an increase in the job role and agreement from the Remuneration Committee (“Remco”), of which the claimant was secretary in her capacity of HRD.[28]In 2018 the claimant expressed concern that she was earning less than other executives. Ms Jessop prepared a paper for Remco seeking a pay increase of 10% for the claimant and this was agreed.[29]In April 2022 the claimant raised the issue of her pay with Ms Jessop. The claimant told Ms Jessop that money had become very important to her and she did not feel she was paid enough. The claimant agreed she had raised her package with Ms Jessop at this time. Ms Jessop agreed to raise it with Remco.[30]In May 2022 the claimant was awarded a pay increase of 6.25% taking her salary to £122,792 p.a. This percentage increase was above the standard increase for the team. The Mercer data shows that the claimant’s salary was at 84% against the market lower quartile. It was unclear if the respondent benchmark their salaries using national or regional comparisons.[31]The claimant agreed under cross examination that she was aware any further significant pay increase was unlikely. ADHD diagnosis[32]The claimant had worked closely with a colleague who we shall refer to as “V”. V’s daughter had been diagnosed with ADHD and made a podcast. The claimant upon listening to the podcast recognised many of her own behavioural traits and arranged her own assessment with Harley Psychiatrists who had been recommended by V. The assessment took place on 26 January 2022 and we had sight of the report. The claimant was diagnosed with ADHD. Her main problem areas were described as follows: a) Work/education - Tired/bored quickly of a workplace, difficulty with administrative work/planning; b) Relationship and/or family Relationship problems - difficulty with housekeeping and/or administration; c) Social contacts - Tired/bored quickly of social contacts, difficulty maintaining social contacts, low self-assertiveness as a result of negative experiences; d) Free time / hobby - Unable to relax properly during free time, unable to finish a book or watch a film all the way through, being continually busy and therefore becoming overtired, binge eating; e) Self-confidence / self- image - Uncertainty through negative comments of others, excessive intense reaction to criticism, distressed by the symptoms of ADHD[33]The claimant was very open with her work colleagues about her diagnosis. Ms Jessop bought her flowers and asked if there was any professional help that could be offered to support her but the claimant declined as she was working through support with the professional she had engaged on a private basis. Ms Jessop also tasked the claimant with arranging some training for the executive team on neuro diversity. The claimant worked on plans with a trainer in May 2022 but the follow up meeting was cancelled due to her resignation.[34]Ms Jessop implemented some adjustments of her own design and volition such as refraining from sending lots of information instead highlighting key points, summarizing long reports and assisting with delegating tasks.[35]The claimant was not referred to occupational health at any relevant time. Various reasons were given in evidence. Ms Jessop told the Tribunal that in the past she had strongly asked the claimant to arrange an occupational health appointment yet the claimant refused. We accepted her evidence on this as the claimant agreed under cross examination she did not want to be referred as she did not wish to be perceived as weak or a burden but the claimant would have agreed to be referred after her rescindment request. See below.[36]Ms Jessop was also of the view that as the claimant was receiving professional private psychiatric treatment a referral to occupational health was not necessary. There was a further belief that as the claimant was the most senior HR person within the respondent that if she needed to be referred anywhere she could referred herself.[37]Mr Smith told the Tribunal that any occupational health assessment would have been done by a general practitioner who did not specialise in ADHD and it would have been likely that it would have needed an onward referral to a specialist. As the claimant was receiving that specialist treatment in any event a referral to occupational health would have been a bit pointless. At that time Mr Smith was confident that the claimant was getting the specialist care and advice needed from her own arrangements.[38]There was evidence that the respondent had previously paid for assessments if they were beyond the professional remit of the usual occupational health provider, for example where someone had been diagnosed with OCD. The claimant was asked about this under cross examination and told the tribunal that the respondent as an organisation had asked this particular individual to seek help and led the referral process. The claimant said that during the period between her diagnosis and her resignation she was not in a fit state to make rational decisions. The claimant disagreed that she was aware she could have asked for support to be referred to a specialist. The claimant told the Tribunal that every time she had the private consultation with the psychiatrist is cost £250 with an additional cost of £190 for the ADHD medication. The only time the claimant asked for the respondent to pay for a psychiatrist was last meeting with Ms Jessop on 6 July 2022 (see below).[39]We find that the claimant must have been well aware of the full range of support offered by the respondent in terms of a possible referrals to occupational health and onwards specialist referrals in her role as HRD. We also find that the claimant did not ask for a referral or assistance until 6 July 2022 and had capacity to do so as evidenced by her making her own private arrangements to be treated by Dr Vukadinovic. If she was capable of making those arrangements she was capable of asking the respondent to make a referral but she chose not to as she did not wish to be seen as a weak or a burden.[40]On 14 February 2022 the claimant had a private psychiatrist appointment with Dr Vukadinovic who prescribed the claimant 30mg Elvanse Adult (ADHD medication) and arranged follow up appointments. Claimant’s mental health between March – May 2022[41]We had sight of contemporaneous medical records for this period. Further, this period had been considered by the psychiatric reports prepared for the purpose of these proceedings (see below). We also had witness evidence from the witnesses as to the claimant’s state of mind and how she presented at the time. We have carefully considered all of this evidence on making the following findings. Psychiatric Assessments with Dr Vukadinovic[42]We deal with this in chronological order although that means the chronology of events is interrupted (we return to these below). All of the assessments took place via Teams whilst the claimant was at work, in an open plan office. The claimant could have chosen to conduct these appointments in a private room if she had wanted to. At the end of each report the claimant was advised to engage and inform her GP. 24 March 2022.[43]The claimant reported being more patient with reduced binge eating, maintaining a good level of balance but she was still having outbursts. At work the claimant said she “was not seeing any improvement” and was still unable to sit in a meeting without doing several things in parallel. She reported she had decided to reduce her Sertraline prescription (anti depressant medication) to 100mg with her GP and she has been taking that dose for one month. The psychiatrist recommended reducing it to 50mg and monitoring her mood. The Elvanse was increased to 50mg. 28 April 2022[44]The claimant reported feeling good on the new dose, calmer and more refreshed in the morning, enjoying a holiday but coming back to work she felt a bit overwhelmed. The claimant described the medication “as already life changing” but was still impulsive. The Elvanse Adult was increased to 70mg which was the maximum dose. She reported that she had stopped Sertraline completely. 9 June 2022[45]This was recorded under appointment outcomes: “Sarah reports that on 70mg of Elvanse she felt anxious, was very tense, and had almost an out-of-body experience. She also ran out of her HRT medication at the same time and had a meltdown. Sarah decided to stop working for 4 days, and it took her some time for her to recover. She is back on HRT and on a reduced dosage of Elvanse 50mg and reports that she feels much better and stable. She has been off sertraline for 3-4 weeks as well. All in all, she feels stable, doesn't report any side effects and would like to continue with the same medication.” The claimant was asked about this psychiatric report and why she told the psychiatrist that she was “feeling good” in April and stable in June. The claimant told the Tribunal that she gave mis information to the psychiatrist and lied as she was desperate to ensure the ADHD medication continued and she would have said anything. She also stated that she kept on thinking it would get better as long as she pulled herself together and needed to give the ADHD medication time to settle down but was very unwell and was not thinking rationally. She also stated that she could not be open with the psychiatrist because she was in an open plan office on a Teams call. 23 June 2022[46]The report notes the claimant was not feeling good, low and was having a lot of negative thoughts. She resigned her job as “she feels she is not behaving well and she can’t contain her emotions, so for her sake and her colleagues, she decided to leave.” Three or four days earlier the claimant had reduced the dosage of Elvanse to 30mg and the tension she was feeling was described as better. It was agreed to continue on a lower dosage of Elvanse and to restart Sertraline 50mg. It was noted that the claimant had distanced from suicidality, and convinced the doctor she would never take her own life as she knows that is a symptom of depression. The current risk to self was noted as low. GP records[47]There were the following entries in her GP records during this period. 15/03/2022 “Telephone encounter Has been diagnosed with ADHD by psychiatrist privately. Has been started on Elvanse 30mg a day for a month and due review next Thursday but runs out omf medication this Thursday. Has really helped with her impatience and her terrible meltdowns. Has reduced sertraline to 100mg. On this dose for a month and feels fine. Advised can reduce to 50mg and then if remains fine can stop or take alt days for a month. Advised we need some documentation from the private psychiatrist in order to prescribe more medication and then can refer locally.”[48]On 11 May 2022 the claimant had a telephone consultation with the nurse having requested a repeat prescription of her HRT. The claimant’s HRT was changed. Her prescription for Femoston was stopped and she was prescribed Utrogestan and Lenzetto.[49]The next relevant entry was on 28/07/2022 which stated as follows: “Acute stress reaction pt thinks she's had a bit of a breakdown. since start adhd medication tried to stop sertraline. was also changed hrt prep. been struggling. put herself back on 100mg sertraline and starting to feel better. would like med3, more hrt and rpt for sertraline.” Sertraline Medication[50]In the claimant’s witness statement she states that she stopped the Sertraline relatively quickly over a 4-6 week period starting at the end of March 2022 as she concluded (of her own volition and without medical advice) that it was no longer needed given the ADHD diagnosis and medication. The claimant was incorrect about the period over which her medication changed and the withdrawal period was slightly longer and more stable than she suggested in her witness statement. The medical evidence shows that the Sertraline was decreased from 150mg to 100mg on 17 February 2022. On 24 March 2022 the psychiatrist records that she had been on 100mg for one month. On 15 March 2022 the claimant reported feeling fine, so Sertraline was thereafter further decreased from 100-50mg. By 28 April 2022 the claimant had stopped Sertraline completely as reported to the psychiatrist at that consultation.[51]We find that the claimant reduced her Sertraline medication from 150mg to 100 mg from mid February 2022, thereafter to 50 mg from 15 March 2022 and by the end of April 2022 was not taking any at all. This is a period of approximately 10 weeks. Claimant’s evidence[52]The claimant’s witness statement gave an account of her state of mind during March – June 2022. The claimant told the Tribunal that by the end of April she had closed down from everybody and was becoming consumed with dark thoughts and wanted to disappear. She recalled screaming uncontrollably at her husband who was so concerned he wanted to get her sectioned. In May 2022 at the point of the change of HRT medication the claimant says: “I was extremely anxious and very suicidal, very depressed, exhausted, and sleeping most of the weekend. I am always awake at 7am but at that time, I would sleep up until midday on the weekends. I would still be working still but over the years learned how to show other people I was okay, when I wasn’t. Outside I might appear fine but internally there was a mix of complete anxiety, depression and anger, and by the time I would get home, I would just sit there for hours and think ‘how do I end all this.”[53]We accepted Mr Bradley’s evidence about how the claimant was at home at this time. The claimant had a major unprovoked melt down at home at one point screaming and shouting wanting a divorce on the spot. He was due to go on a sailing holiday but decided he could not go. In the preceding months prior to the event, she had become very agitated while grappling with changes to her medication. The most recent event as described above was the worst he had experienced. Executive team meeting 11 May 2022[54]The claimant was late for this meeting and which started in her absence and the claimant was upset with Ms Jessop’s attitude towards her at the meeting. Following the meeting the claimant became very upset and asked Mr Smith to collect her belongings and meet her in reception as she wanted to go home.[55]We find there was a degree of downplaying how upset the claimant was after the meeting in the witness statement of Ms Jessop and Mr Smith compared to what was said in the grievance investigation. Ms Jessop’s witness statement did not mention the incident at all only that the claimant took a few days off (and attributed this to the change in HRT). Mr Smith’s statement said the claimant had a clash with the exec team and her behaviour was pretty normal, nothing extreme. Neither mention that they discussed the incident with each other after the claimant went home.[56]Mr Smith told a later grievance investigation that the claimant was “visibly upset and tearful”. He later spoke with Ms Jessop who expressed concern for her welfare and suggested she take time out to get better but that when the claimant returned two days later she seemed much better.[57]The claimant messaged Ms Jessop at 11.06 am to advise her she had to come home and was seeing the doctor that afternoon. There was no record that the claimant saw the GP but she did have the telephone consultation with the nurse regarding her HRT medication (see above). Ms Jessop was supportive in her response advising she had her support and to take time off. She also congratulated her for understating her ADHD. Later that day the claimant told Ms Jessop she was on the wrong dose and combination of medication, feeling very out of sorts and was starting a new combination on the Friday. Ms Jessop sent two further supportive messages and offered further time off.[58]On 13 May 2022 the claimant sent the following message: Thank you.... 'mania' over... just feeling exhausted now... I am so, so sorry about this. I am desperate to find "peace of mind and balance'. I will be in on Monday, probably much quieter... you are probably at the end of your tether by now. If you want to have a "conversation" with me about a leaving plan, I will totally understand. See you Monday. Xx[59]Ms Jessop replied telling the claimant not to be so silly and she was proud of her for how she was dealing with the diagnosis.[60]On 13 May 2023 Mr Smith sent the claimant a WhatsApp message asking how was feeling. The claimant replied: “Yeah better.... mania over, just exhausted... feel like I've been on a bender for a week... ADHD medication not to be messed with... So sorry, again... I'll be back on Monday, calmer !”[61]The claimant returned to work on 16 May 2022. The claimant had been managing the Tech Team but on the appointment of an Interim Director, her management of this team ceased. The claimant agreed under cross examination that she presented at work as “normal” with no further meltdowns or conversations about mental health. She told the Tribunal she had taken the lead at the Platinum Jubilee celebrations and threw herself into all of the activities including a tug of war and line dancing. Head hunter[62]Sometime in May 2022 the claimant had been approached by a recruitment consultant who we shall refer to as SG about a HR Director role. The claimant attended an interview on site in Newport, driving herself to the interview. This was around the end of May, beginning of June 2022. The interview was, in the words of the claimant “disastrous”. Within a few days of the interview SG telephoned the claimant on an unscheduled call to inform her she had not been successful. Resignation[63]On 15 June 2022 the claimant and Ms Jessop were in a meeting. Mr Bradley had been away on his sailing trip for almost three weeks. The claimant denies resigning at this meeting but agrees she floated the idea. She also agrees telling Ms Jessop that money had become important and that she was looking to pursue a career in the interim market in London. The claimant’s friend and colleague “V” had resigned to take up lucrative interim work in London as had another member of the team of which the claimant was well aware. Changing attitudes to home working meant that the interim work could be done from home whilst earning London salaries. The claimant agreed that she told Ms Jessop her husband was retiring and hers would be the only income.[64]Ms Jessop told the Tribunal that the claimant said “actually I want to resign” to which she immediately asked her if she was ok. Unlike previous occasions where the claimant had resigned she was not visibly upset, sobbing or displaying emotions or behaviour to give rise to any concern about her mental health. Ms Jessop described it as a shock but after the claimant talked through her reasons (money, knowledge of close friends taking interim roles in London for more money yet being able to work from home), she considered the claimant had thought this through. The claimant also told Ms Jessop that she had been with the respondent so long things felt repetitive and stale and commented “there are only so many times you can communicate the profit share”. Ms Jessop told the claimant she would accept her resignation and agreed not to discuss matters with anyone else until they had mapped out how to break the news and manage the disruption. After the meeting Ms Jessop told Mr Leighton John and her husband but no one else.[65]We preferred Ms Jessop’s account of what happened at this meeting. It was detailed and to a degree corroborated by much of what the claimant said also. We have no doubt that Ms Jessop left the meeting with a clear understanding that the claimant had resigned and having had preliminary discussions about the plan for her notice period. Ms Jessop’s account was also corroborated by what both Ms Howell and Mr Smith say the claimant told them after that meeting (see below).[66]Following this the claimant continued to attend work and presented as stable to her colleagues.[67]After an executive team meeting on 21 June 2022, M raised with Ms Howell that he felt bullied by the claimant and did not want to go back into the room if the claimant was going to be there. The following day, Ms Howell spoke to M in private on the telephone. M wanted to escalate matters to Ms Jessop but agreed Ms Howell would firstly speak to the claimant to see if they could mediate. Unbeknown to Ms Howell, the claimant had overheard the conversation and Ms Howell then told the claimant that M had called her a bully. The claimant responded with words to the effect “I will solve that I am leaving”. Ms Howell urged the claimant not to over react and the claimant told her she had already resigned the week before. The claimant told Ms Howell that she intended to go and get interim work and earn more money. Ms Howell said the claimant had tears in her eyes but was calm and collected. The claimant says that she was “ranting, really emotional and wasn’t listening”. She says she made the decision impulsively purely out of emotion, anxiety and humiliation.[68]Following this discussion the claimant went to see Ms Jessop and told her she had informed Ms Howell she had resigned. She accepted the claimant was a little upset but put this down to having to tell her team.[69]The claimant then called Mr Smith into a separate meeting room and told him she had handed in her notice and had spoken to Ms Jessop the previous week. She told Mr Smith that she was in the last 5 years of her retirement and needed to make the most of it financially and wanted to pursue a career in interim work. She also mentioned tensions being which was probably a reference to the issue with M. Mr Smith accepted the claimant was upset but attributed this to a natural reaction to the claimant leaving after many years of service.[70]Mr Smith had worked with the claimant for many years and they were close. The claimant had previously asked him to help her spot any signs of when she was heading into a “down” and he was able to spot the signs. He described these as getting restless and impatient with both people and work projects, sometimes angry over little things and occasionally becoming more withdrawn. Generally, the main signs would be the sudden changes in the claimant’s mood, manic behaviours and more extreme reactions.[71]Mr Smith did not consider that the claimant was experiencing a decline in her mental health. He had witnessed the claimant in the midst of bad mental health episodes and said this time it felt very different.[72]Thereafter the claimant’s direct reports were informed.[73]On 23 June 2022 Mr Smith drafted a proposed announcement of the claimant’s resignation, stating that she was pursuing a career in the professional interim marker. He emailed the draft to the claimant and Ms Jessop stating “as discussed…see proposed draft”, so this must have been discussed with the claimant as Mr Smith says in his witness statement.[74]The claimant told Mr Smith she trusted him to draft the statement and it was then sent to the leadership team later that day. This stated: Hi All I wanted to let you all know that Sarah Bradley has decided the time is right for her to hand in her notice and pursue a career in the professional interim market. Sarah has worked at The Royal Mint since 2008 and, as you'll no doubt be aware, during her time in the business she has been instrumental in driving a number of organisation changes and initiatives. Sarah has been a massive support to me personally during my time in The Royal Mint and she definitely leaves the business having made a huge positive impact. We will all be sorry to see her leave and I'm sure you will all join with me in wishing Sarah all the very best with her future endeavours.[75]On 27 June 2022 the claimant confirmed her resignation in writing by sending an email to Ms Jessop: Just for formal records and to confirm, I have resigned from my position as HRD and as per my contract, am giving three months' notice. My last working day will be 30th September 2022, although as agreed with Anne, this may be earlier if I secure another position.[76]Ms Jessop replied on 27 June 2022 formally accepting the resignation.[77]Mr Smith informed the trade unions about the resignation. On 30 June 2022 a meeting took place between the claimant, Ms Jessop and Mr Smith to consider and scope a candidate profile. The claimant appeared calm and actively contributed to the meeting. An external recruiter was contacted who started to undertake searches whilst the candidate profile was to be drafted. Calendar entry 29 June 2022[78]In the claimant’s outlook calendar there was an appointment on 29 June 2022 between 11.30-12.00 with SG. It was categorised as a private appointment with a padlock symbol. During initial disclosure the claimant’s outlook calendar was disclosed but as it would have not been viewed on the respondent’s system, this would not have been apparent to the claimant who would have only seen a private appointment with no padlock. During the claimant’s cross examination the respondent applied and were granted permission to ask the claimant about this appointment. The respondent wanted to know if this appointment was to tell the claimant she had not been successful for the role SG had approached her about. The significance of this was potentially important as it post dated her resignation and pre dated the claimant’s attempt to rescind her resignation.[79]The claimant disputed that this was the reason for the calendar entry. The diary entry was taken into the claimant when she was giving evidence from the booth on 30 January 2024. Her initial evidence when asked about this appointment was the only thing she could think of was that she was being declined but then said she could not recollect. The claimant then went on to speculate it might have been about her replacement but was clear it was not around any role. She pointed to the fact that another recruitment consultant (Vanessa) was also in the diary for that date. She denied it being the date of the “disastrous interview” and was very clear that the interview had been earlier and in person having taken place in Newport. The claimant stated that the meeting was also with Ms Jessop and set up by her PA however subsequent disclosure showed that neither of their outlook calendars contained the same diary entry.[80]We find that it is likely the calendar entry was because the claimant was due to speak to SG about her replacement. It was the day before she was due to meet with Ms Jessop and Mr Smith to discuss her replacement and there was also another entry that day with another consultant. We find that the claimant was well aware that she had not been successful for the role SG had approached her about before she decided to resign. We have taken into account that there were no diary entries for Ms Jessop and her PA as the claimant thought there might have been but we do not consider this minor difference in evidence to be significant given the other corroborating factors around this appointment. Claimant’s request to rescind the resignation[81]On 4 July 2022 the claimant’s husband returned from holiday and the claimant told him she had resigned. Mr Bradley was very upset, worried and anxious about their future and the claimant decided she would try and retract her resignation. On 6 July 2022 the claimant sent Ms Jessop a WhatsApp message which stated: Please can we talk today? I need help, thank you”. Ms Jessop replied “of course see you later.”[82]There was a dispute about what happened next as well[83]The claimant says that after sending the above text message she did not meet with Ms Jessop until 11 July 2022. She says that she was sobbing saying she needed help and to see a psychiatrist and that she did not want to go (leave). She stated she needed help and more time to allow the changes in medication to start working. The claimant says she told Ms Jessop she had appeared calmer lately as she had re started the anti depressants but Ms Jessop appeared angry and exasperated. The claimant agrees she suggested taking things on a month by month basis and asked for time and that the respondent stop the recruitment process. The claimant went away from this meeting believing that Ms Jessop was going to consider her request. The claimant then went on holiday on 13 July 2022.[84]Ms Jessop says they met the morning of 6 July 2022. She told the Tribunal she considered on the drive to work that the claimant might have changed her mind and gave some thought as to how she would respond if this was the case. Ms Jessop concluded that this would be completely disruptive to the business to allow her to change the position. She thought particularly about the claimant’s stated motivations for leaving and how many people she had told about them.[85]Ms Jessop says they met in her office that morning and the claimant immediately asked if she could rescind her resignation and that she had stopped taking certain medication earlier in the year but had gone back on them and was feeling better but she had not been herself the past few weeks. Ms Jessop disputed that the claimant said she had been in crisis or anything that strong only that the claimant said she had not been herself.[86]Ms Jessop considered what had been said having already given thought to this scenario and nothing the claimant said changed her mind. She told the claimant it was not the right decision for the respondent to accept the rescindment. The reasons were that her resignation had been communicated widely and she had been very open with people about wanting more money and this compromised her role of leading on pay awards as people knew she wanted to earn significantly more, especially in her role as being in charge of setting the reward for others.[87]Further, there was a real risk she could resign again given Ms Jessop’s understanding of the reasons she had resigned. In particular, Ms Jessop had understood from what the claimant had told her that the claimant’s primary motivation for resigning was financial and in particular, Ms Jessop knew that she would be unable to secure any further significant pay awards for the claimant (see above at paragraphs 27-31). this was emphasised in her oral evidence. Ms Jessop told the Tribunal although the respondent was not a “massive organisation” that anyone leaving the executive team would be “big news” and disruptive with speculation about the reasons and who the replacement will be. She did not accept it would be easy to backtrack on such a senior resignation.[88]Ms Jessop disputes that she told the claimant she would think about the decision but agrees she said go away and enjoy the holiday and they would speak further when she returned.[89]The claimant mentioned to Mr Smith on or around 12 July 2022 that she had requested to rescind her resignation. This was the day before she went on holiday. Mr Smith told her he had not yet written the brief for her replacement which gave her hope they would hold the recruitment process. Mr Smith agrees that the claimant mentioned to him before her holiday that she was potentially not being sure about leaving. Ms Jessop’s notes[90]We pause here to set out our findings regarding some near contemporaneous notes made by Ms Jessop. None of the above discussions had been documented by either the claimant or Ms Jessop. These notes are therefore the only near contemporaneous records of what had taken place.[91]On 20 July 2022, a few weeks after the request to rescind we have outlined above, Ms Jessop created a document called “Initial Statement”. The claimant had sought disclosure of the version histories of this document and this produced 16 versions which were in the bundle. Ms Jessop gave a supplementary witness statement regarding this document and the differing versions. Ms Jessop told the Tribunal that it was a personal memo to bring together her thoughts and reflections on the recent happenings involving the claimant and she was a reflector in style and this is often her approach to such matters. Ms Jessop explained she will quickly produce a note, reflect then order and develop over time to create a record of her actual position.[92]The first version was created on 20 July 2022. It started with a section on the claimant’s background of her employment. She referenced the claimant having “episodes” after which she offered to resign but Ms Jessop refused to accept as she could “see she was ill”. The notes goes on to say: Recently she stated to demonstrate behaviours that could have been another episode and destabalised the team. She came to see me and said that she wanted to resign she had had a lot of changes over the last 6 months and money was now important and so she wanted to do interim work in London where she could be paid more and she wanted a new challenge. She mentioned she had a coach1 who used to work for us who had identified that Sarahs mental health wasn’t helped by being here because she could not be objective as she was “overly “attached to TRM. I accepted her resignation as despite the fact that she was upset I understood her rational and believed that it was best for her and the team who have all being impacted to a greater or lesser extent. We agreed we would not communicate for a period and would keep it confidential. 3 or 4 days later Sarah told Nicola and insisted that we communicate in the organisation which we did during the next day. A couple of weeks later Sarah told me that she had been hasty had now resumed her medication and wanted to stay. I explained that I needed to think not only about her but the mental health of the team and thought that it was the right decision.[93]Ms Jessop accepted that the reference to “recently she had started to demonstrate behaviours” was a reference to the May 2022 incident when the claimant took time off work (see above at paragraph 54-61). She also accepted under cross examination that the claimant’s disability and the effect on others was on her mind but this was not the main reason she refused to rescind.[94]On 28 July 2022, at 13.47 Ms Jessop returned to the note. In terms of timing, this was the day the claimant had emailed the board and a few hours after the exchange we refer to in paragraph 101 below.[95]In a later version at 14.02 MS Jessop added a new last paragraph: I said that I would not accept the rescinding of her resignation because I thought her resignation was for the best that a number of the team had told me that she had adversely impacted their mental health.[96]In the 15.13 version Ms Jessop deleted the entire paragraph above (starting recently she started to demonstrate behaviours etc). In a later version at 16.07 Ms Jessop added: A little later she started to demonstrate a renewal of her obsessive behaviour surrounding one of the earlier and most extreme fixations. She was not able to control her behaviour towards him in meetings with not only the exec but also when others were there. Given how traumatic it had been the first time he raised the issue as did his colleague’s.[97]This was a reference to the fixation with M (see above). Nothing turns on the deletion of the diagnosis of ADHD at 17.19 as this was added into the next sentence just in a slightly different format.
The Law
[98]The final version was saved at 17.48. This had removed the reference to the mental health of the team in the sentence that addressed why Ms 1 This is a reference to V see paragraphs 32 and 64 Jessop had refused to allow the claimant to rescind her resignation and it now read: On the 27th when she was back I met with her reconfirmed that I would not be agreeing to her rescinding her notice as I had to think about what was best for the team and organisation.[99]On 21 July 2022 the draft candidate pack for the claimant’s replacement was drafted (the job title was changed to “Chief People Officer”.).[100]On 27 July 2022 the claimant returned from holiday and met again with Ms Jessop. The claimant says it was only at this point Ms Jessop confirmed she would not permit the claimant to rescind her resignation. Ms Jessop says she reaffirmed this to the claimant for the same reasons as outlined above. It is accepted the claimant became upset. The claimant then left work and became very unwell (see GP record at paragraph 49.[101]On 28 July 2022 the claimant sent an email to some of the leadership team copied to Mr Smith. She stated: Despite me informing the business at the beginning of this year of my ADHD disability, the lack of support and reasonable adjustments at work over the last 6 months, has caused me considerable stress, anxiety and deep depression, to the point of not wanting to be ‘here’ anymore. My illness was further compounded yesterday by the business refusing to let me rescind my impulsive decision to resign, which due to the nature of my disability, was a decision made whilst being extremely ill and seeking psychiatric support to find the right combination of medication to treat my illness – an illness I have managed and ‘masked’ over the last 13 years of loyal and dedicated service at TRM, but has been become difficult, (but not impossible), to manage due to my late in life hormonal changes.[102]The claimant then sent a copy of the email to the board with some covering words registering her disappointment with the Boards’ support of Ms Jessop’s decision not to allow her to rescind her recent resignation. The claimant referenced her ADHD and that this had been exacerbated by the menopause and changes to medication.[103]Mr Love, Chairman, emailed Ms Jessop asking to discuss the email. Another board member commented there was no compunction whatsoever to accept a rescinding of notice, and she believed it would now do more damage than good to reverse this. Mr Love then replied and asked no one else to engage on the topic and that emails would probably be discoverable.[104]Ms Jessop emailed the claimant later that day confirming she would not permit the claimant to rescind. She did not provide a reason only stated that the business has accepted the notice and was not willing for it to be rescinded. Ms Jessop offered her counselling, outplacement support and reminded her of the EAP. It was decided to place the claimant on garden leave at this point and she was so advised.[105]On 1 August 2022 matters were progressing regarding recruiting the claimant’s replacement as the recruitment consultant was far enough along to have drafted the job advertisement for approval. Ms Jessop accepted in her witness statements that recruitment was not a factor in the decision. See below.[106]On 2 August 2022 the claimant emailed Ms Jessop. She stated that she had gone on holiday believing that she would be given time to recover, time for medication to work and continue in her role. She requested reasons why the respondent was not now willing to rescind her resignation. Ms Jessop relied by email on 5 August 2022 as follows: “You must appreciate how destabilising it is for a senior member of staff to resign. We have communicated your departure to the business and taken steps to commence the search for your successor. I should also point out that this is not the first time that you have either resigned or threatened to do so. I remain of the opinion that the best course of action for the business is not to allow you to rescind that resignation. This has nothing to do with your disability or your sex”.[107]The claimant was subsequently signed off sick by her GP. She attempted to challenge the decision not to allow her to rescind via emails to Ms Jessop and later solicitors’ letters.[108]The claimant’s solicitors letter dated 22 August 2022 complained, in summary of sex and disability discrimination in that the respondent had failed to refer the claimant for occupational or specialist assessment and should permit her to rescind her notice.[109]The respondent’s solicitor reply dated 26 August 2022 set out all of Ms Jessop’s understandings for the claimant resigning at that time. This letter was telling as it is plain from this letter that the respondent did not accept that the claimant’s resignation was attributable to either her mental health or ADHD. The respondent “dug in” as can be seen from the following passages: “On 15 June 2022, during a meeting with Anne Jessopp, CEO, your client advised that she wished to resign from her position as HRD. We are instructed that this decision appeared well considered and was obviously pre-planned. “ The letter then set out the various reasons provided by the claimant for her decision at that time. In relation to the assertion the claimant should have been referred to occupational health: “Your client was receiving treatment from her own physicians and was reporting back to the business regularly as to the impact of her conditions upon her work. The business was actively encouraging her to do this, and your client will be able to recall the extent to which they were working with her on this. To suggest that your client was denied occupational health support because of her disability makes little sense and is entirely denied. “ And “Our client does not accept that your client’s resignation arose in consequence of her impaired mental health and instead arose from her desire to work elsewhere and earn more money. An occupational health referral was considered unnecessary given the level of medical support your client was stating she was already receiving.” And It would be completely disruptive to now unpick the steps already taken to prepare for your client leaving the business. Your client has clearly been looking to the market for other opportunities, including work outside of South Wales. There is no obvious reason why your client’s disgruntlement with her pay would dissipate and our client is entitled to reject the request for rescindment in circumstances where it is reasonably foreseeable that your client may well resign again for similar reasons, should any better pay opportunities arise.[110]On 13 September 2022 the claimant submitted a formal grievance. The respondent appointed Ms S Austin to investigate the grievance who is a partner at Capital Law. Mr H Lewis. Chief Financial Officer was tasked with making the decision on the grievance following the investigation report. Ms Austin commenced an investigation and was sent some initial information by Mr Smith on 16 September 2022 which he obtained from an internal drive. Included in that information was Ms Jessop’s “initial Statement” that we have discussed above, the final version. Ms Jessop had intended these notes to be private. On 10 October 2022 Ms Jessop emailed Ms Austin stating she had sent these notes in error and asked for them to be destroyed advising she did not give permission for then to be used.[111]Ms Austin interviewed Ms Howell, Mr Smith and Ms Jessop as well as the claimant. Ms Austin prepared some questions in advance for Ms Jessop and Mr Smith but we find nothing turns on this and there was nothing sinister in this arrangement.[112]The grievance investigation report was dated 20 October 2022. This was a comprehensive review of all of the evidence and documents. The report recommend that the grievance should not be upheld. The main relevant reasons for the conclusion were are as follows:[113]Ms Austin acknowledged that permitting the claimant to rescind her resignation was a potential adjustment which could have been made and that it would have ameliorated disadvantage;
Conclusions
[114]It would not have been a reasonable adjustment to allow the claimant to rescind her resignation. This was on the basis of the specific circumstances including the claimant’s seniority, the fact that the entire business, the trade unions, and HM Treasury had been informed of her resignation, and the fact that the claimant had said that her reasons for resigning were financial and Ms Jessop knew that this issue could not be resolved.[115]As such it was possible that if the claimant had been permitted to rescind her resignation, she may have resigned again at some point in the near future and Ms Jessop’s view that this would have a destabilising effect on the respondent was accurate.[116]Ms Austin concluded it could be very de-stabilising for the respondent to communicate that a senior person was leaving, then announce that she was not leaving, and to potentially have a further resignation at a later date.[117]On 26 October 2022 Mr Lewis wrote to the claimant to advise her grievance had not been upheld. She was offered the right to appeal against the decision and did so on 13 November 2022. Mr Forbes, Director of Supply Chain was appointed to hear the grievance appeal. The claimant had raised concerns that Mr Lewis and now Mr Forbes were subordinate to Ms Jessop and therefore continued to raise concerns in this regard. Mr Forbes did not uphold the appeal and detailed reasons were set out in his decision letter dated 8 December 2022. Neither Mr Lewis nor Mr Forces were called to give evidence at the hearing. Comparators[118]We have not dealt with the evidence regarding other comparators who were said to have been permitted to rescind because the list of issues confirmed that the claimant relies upon hypothetical comparators. We will say that the evidence did not support this assertion. Expert reports[119]The parties instructed experts to prepare reports for the purpose of this litigation. We have set out the expert evidence as far as is proportional to the liability issues. The main issues where we consider the expert evidence to be relevant for the purpose of the liability judgment is the extent to which the claimant’s resignation was attributable to her disability and in respect of the substantial disadvantages relied upon for the reasonable adjustments complaints.[120]The claimant instructed Dr Ajaz, Consultant Psychiatrist who is a fully registered medical practitioner, holds a MBBS (Bachelor of Medicine and Bachelor of Surgery) and a BSc (Bachelor of Science). He is a member of the Royal College of Psychiatrists.[121]Dr Ajaz interviewed the claimant via a 2-hour online consultation on 08 May 2023. He also had sight of the claimant’s GP medical records, Harley Street Psychiatrist Records, copy of the grievance and the letter of instruction from the claimant’s solicitor. He was aware from the grievance information of the respondent’s position that in summary;• Neither Ms Jessop and Mr Smith understood that the claimant was experiencing a mental health crisis in April, May or June 2022. They were aware she had been unwell around 11 May 2022, but returned to work and appeared to be performing and behaving as expected. Also although Mr Smith observed that her “highs and lows became more frequent during this period”, he said she had experienced these highs and lows throughout her employment.• Whilst the claimant had referred to her behaviour as impulsive and desperate, Ms Jessop perceived this situation to be very different from her previous resignations, as previously she had not given reasons for resigning but had just stated that she could not cope. She says that on this occasion, the claimant gave clear reasons (financial) and once she resigned, she set in motion the communication to the rest of the organisation and was pushing for this to be done immediately.[122]His report was dated 18 May 2023. It was said that Dr Ajaz misquoted the psychiatrist report by saying that on 9th June 2022 it was reported that the claimant “was feeling increasingly tense and anxious”. This was partially incorrect as what was actually recorded was that the claimant had been feeling anxious and tense on the 70mg Elvanse but by the time of the appointment reported feeling stable and an improvement (see paragraph 45 above). We find nothing material turns on this because it was drawn to Dr Ajaz’s attention on follow up questions and this did not change his view nor that of the later joint agreed statement between both experts.[123]Dr Ajaz stated that the claimant has a very good insight into her mental health. He reported there were clear examples of when her mental health has clearly relapsed resulting in her experiencing extreme mood swings, intense feelings of being overwhelmed and other emotional states, acting in a manner that is impulsive - meaning that her capacity to weigh up the consequences of decisions is diminished, often making quick decisions on the spot. The respondent’s expert report[124]The respondent instructed their own independent expert Dr Singh. The report is dated 18 October 2023. Dr Singh is an equally eminent expert witness being a full time Consultant Psychiatrist in General Adult Psychiatry and on the Specialist Register of the GMC for both General Adult Psychiatry and Learning Disability. In Dr Singh’s opinion the claimant’s decision to resign was affected by her mental health but she had capacity to understand the consequences of her decision to resign. Dr Singh initially stated that there was no evidence of masking of symptoms but the urge to carry on at work regardless of stress. Dr Singh later clarified that she would not expect the claimant’s medical records prior to diagnosis of ADHD to have noted masking but would have expected it to be noted in GP records and reports. It was said to be possible that the lack of recognition could be an example of successful masking of symptoms. Dr Singh also concluded that the claimant may have been masking her actual feelings as a coping mechanism.[125]The experts subsequently agreed a joint statement which stated as follows: - We agree that Ms Bradley has a diagnosis of Attention Deficit Hyperactivity Disorder (ADHD), along with Depression and Anxiety over many years. - We agree that at the time of her resignation, her mental state was significantly affected by changes in her psychotropic medication – her ADHD medication dosage was initially increased then reduced due to Ms Bradley experiencing prominent side-effects; around the same time, she had taken it upon herself to reduce and stop her antidepressant medication. - We agree that at the time of her resignation, her mental state was significantly affected by the side-effects of ADHD medication and likely withdrawal effects of stopping antidepressant medication. - We agree that sex hormones play an important role in brain health, and that having a pause/break in her hormone replacement therapy, also likely had a clinical significant affect on her mental health, in the lead-up to her resignation. - We agree that the above factors had a significant influence on Ms Bradley’s decision to resign from The Royal Mint in June 2022. - We agree that the refusal for The Royal Mint to accept the rescindment of Ms Bradley’s resignation, further negatively impacted her mental health, to a significant degree. - Masking behaviours are coping strategies whereby an individual’s inner feelings and emotions are suppressed in order to project more socially acceptable behaviour. It is common for people with ADHD to exhibit masking behaviours (more so with females with ADHD) and it is likely that this also applies to Ms Bradley. However, it is difficult in retrospect, to quantify the degree of masking behaviour Ms Bradley exhibited around the material time. Findings of fact – reason for resignation[126]The respondent pointed to a number of factors in support of a finding that the claimants’ resignation was unrelated to her mental health / ADHD or that the June 2022 resignation was different from those before: a) The claimant wanted a pay rise and was aware a further significant rise was unlikely to happen (see paragraphs 27-31); b) The claimant thought she would secure interim work which would be better paid; c) The claimant’s behaviour was calm, balanced and reasonable with no sick leave or “meltdowns”; d) There was a long period of time between her verbal resignation and written confirmation; e) The claimant had been headhunted.[127]We agree that(a) (d) and (e ) are factually proven. We partly agree with (c ) in so far as apart from the May 2022 episode, the claimant presented at work as calm balanced and reasonable having regard to her pattern of previous behaviour up until her rescindment request was refused. We also agree the claimant told Ms Jessop about(b) and may have believed that at the time given the experience of he colleague and friend “V” but we do not think that was the reason she resigned.[128]If the respondent’s case is to be accepted we would be finding that the claimant was calm and stable at this time and made the decision to resign based on monetary reasons in a calm and rational manner. It was only when the claimant realised that the interim job marker may not be so lucrative that she had a change of mind and then sought to attribute her resignation on her mental health and ADHD which was at best, an afterthought or at worse, untruthful. We would also going against the joint expert evidence.[129]We do not agree that the evidence before us can support such findings. We find that the claimant resigned her employment on 15 June 2022, confirmed in a meeting on 22 June 2022 and in writing on 27 June 2022 due to her mental health at that time and her ADHD. These are our reasons:[130]We accepted the claimant and Mr Bradley’s evidence about her true state of mind during the months January – June 2022. In March 2022 she told her psychiatrist she was not seeing any improvement at work. The claimant reduced and then stopped taking her anti depressant medication. Although the reduction in this medication was longer than the claimant had asserted this was only a matter of 4 more weeks and we do not think anything turns on this given the other medical evidence at that time particularly around the time of her resignation.[131]There was a period between 28 April and 8 June 2022 between seeing her psychiatrist. On 9 June 2022, just 6 days before she resigned she told her psychiatrist that she was feeling much better and stable. The claimant told the Tribunal her reasons for doing so. We were invited not to accept her evidence about this. We agree that the explanation regarding not being open to her psychiatrist as she was on Teams in an open plan office to be implausible as the claimant could have taken the Teams calls in a private office if she wanted to. We also find it more likely than not that as of 9 June 2022 she was feeling calmer and more stable having reduce the Elvanse at that time from 70mg to 50mg.[132]This must be taken into account within the context of the overall factual matrix. On 9 June 2022 the claimant may have been feeling more calm and stable but this needs to be considered along with all of the other evidence about her mental health and ADHD at that time. We find that this one factor does not affect our overall findings having regard to the other evidence that supports the finding her resignation was due to her mental health and ADHD. The situation with the claimant’s medication plainly had a significant impact on her and we accept the expert evidence in this regard.[133]We also take into account the incident in May 2022 when the claimant had to take time off and was so upset she was unable to collect her belongings. After this incident the claimant told Ms Jessop she had been “manic” and was “desperate to find peace of mind and balance.” She felt Ms Jessop must be at the end of her tether and would understand if she wanted her to leave. The claimant told Mr Smith she had been manic and ADHD medication was not to be messed with – and that she felt like she had been on a “been on a bender”.[134]All of these behaviours reflect what the experts later jointly concluded – that the claimant’s mental state was significantly affected by changes in her medication including HRT and this likely had a clinically significant affect on her mental health, in the lead-up to her resignation. We find the expert advice highly relevant and persuasive along with the other contemporaneous evidence and the claimant and Mr Bradley’s evidence.[135]However it is important to further set out our findings as to what Ms Jessop and Mr Smith reasonably believed to be the reason at the time for the claimant’s resignation.[136]We find that they believed the claimant to be in a stable state of mind and whilst upset at the prospect of leaving her role, had made the decision based on the reasons she had given Ms Jessop, Mr Smith and Ms Howell. We find that the respondent at this stage should not have reasonably understood the claimant to be in the midst of a mental health crisis or an ADHD meltdown. We have taken into account that the claimant had taken time off in May 2022 and had displayed that behaviour described above with M. Apart from this her appearance at work after her return from sick leave was on the claimant’s own evidence presenting as stable (see paragraph 61 in particular). We particularly take into account that expert evidence on masking and in addition the claimant admitted lying to her psychiatrist about her true state of mind. If the claimant was prepared to be untruthful to her psychiatrist to whom she was paying privately, it is entirely plausible that she was presenting an appearance of normal behaviour at work. Ms Jessop and Mr Smith were close to the claimant and had known her a long time and experienced her previous behaviour when she was unwell. At the time of the resignation and up until 27 July 2022 they were reasonable in their understanding that the resignation was not a symptom of her mental health or ADHD, which the experts later concluded to be likely. Findings of fact about the reasons for refusing the rescindment request[137]We find that in terms of both the timing of the meeting and the account of what was said, we prefer Ms Jessop’s account ( see paragraphs 81-90 above where the differing versions are discussed). We do not think it plausible that Ms Jessop would have let matters wait until 11 July 2022 particularly having regard to the nature of the text message the claimant had sent asking for help. Ms Jessop has at all material times up to this point displayed support and understanding for the claimant’s behaviour and mental health challenges. We also take into account what Ms Jessop said in her near contemporaneous notes which corroborate that the claimant told her she had been hasty and resumed her medication and that she told her immediately rescindment would not be possible. Further that she reconfirmed (our emphasis) to the claimant she would not accept the rescindment on 27 July 2022. We think that if the claimant had been in the state of distress she described Ms Jessop would have acted to ensure her well-being rather than simply let her go away on holiday. The claimant did not fully appreciate this was a firm refusal to allow her to rescind probably because of her state of mind at that time. Ms Jessop herself reflected that the claimant appeared calm at work before her leave and with hindsight wonders if the claimant had absorbed the decision. The Law Direct Discrimination[138]Section 13(1) of the Equality Act 2010 (“EQA 2010”) provides that direct discrimination takes place where a person treats the claimant less favourably because of the protected characteristic than that person treats or would treat others. Under s23(1), when a comparison is made, there must be no material difference between the circumstances relating to each case.[139]Under s136 EQA 2010, if there are facts from which a tribunal could decide, in the absence of any other explanation, that a person has contravened the provision concerned, the tribunal must hold that the contravention occurred, unless that person can show that he or she did not contravene the provision. Guidelines were set out by the Court of Appeal in Igen Ltd v Wong [2005] IRLR 258 regarding the burden of proof (in the context of cases under the then Sex discrimination Act 1975). The Tribunal must approach the question of burden of proof in two stages.[140]The first stage requires the complainant to prove facts from which the ET could, apart from the section, conclude in the absence of an adequate explanation that the respondent has committed, or is to be treated as having committed, the unlawful act of discrimination against the complainant. The second stage, which only comes into effect if the complainant has proved those facts, requires the respondent to prove that he did not commit or is not to be treated as having committed the unlawful act if the complaint is not to be upheld. To discharge the burden of proof “it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex,” (per Gibson LJ).[141]In Nagarajan v London Regional Transport and others [1999] IRLR 572 HL held that the Tribunal must consider the reason why the less favourable treatment has occurred. Or, in every case of direct discrimination the crucial question is why the claimant received less favourable treatment.[142]The key to identifying the appropriate comparator is establishing the relevant "circumstances". In Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285 this was expressed as follows by Lord Scott of Foscote: "...the comparator required for the purpose of the statutory definition of discrimination must be a comparator in the same position in all material respects as the victim save only that he, or she, is not a member of the protected class."[143]Hewage v Grampian Heath Board [2012] IRLR 870 (SC) endorsed the guidelines in Madarassy v Nomura International [2007] IRLR 246 (CA) concerning what evidence is required to shift the burden of proof. Facts of a difference in treatment in status and treatment are not sufficient material from which a Tribunal could conclude that on the balance of probabilities there has been unlawful discrimination; there must be other evidence. Discrimination arising from disability[144]Unfavourably is not defined in the Equality Act 2010. The Equality and Human Rights Commission’s Statutory Code of Practice on Employment (“the Code”), provides that it means a disabled person “must have been put to a disadvantage”. In Williams v Trustees of Swansea University Pension and Assurance Scheme and anor [2018[ UKSC 65 Lord Carnwath held that in most cases little is likely to be gained by seeking to draw narrow distinctions between the word “unfavourably” in section 15 and analogous concepts such as “disadvantage” or “detriment” found in other provisions, nor between an objective and a “subjective/objective” approach. The passages in the Code were said to provide helpful advice as to the “relatively low threshold of disadvantage which is sufficient to trigger the requirement to justify under this section”.[145]The unfavourable treatment must be identified and cannot be the mental process which leads the putative discriminator to behave in that way (T-Systems Ltd v Lewis EAT 0042/15).[146]Basildon & Thurrock NHS Foundation Trust v Weerassinghe UKEAT/0397/14 provides the Tribunal should identify two separate causative steps in Section 15 claims (per Langstaff J, then the President of the EAT): ''The current statute requires two steps. There are two links in the chain, both of which are causal, though the causative relationship is differently expressed in respect of each of them. The Tribunal has first to focus upon the words “because of something”, and therefore has to identify “something” – and second upon the fact that that “something” must be “something arising in consequence of B's disability”, which constitutes a second causative (consequential) link. These are two separate stages.''[147]Pnaiser v NHS England & anor [2016] IRLR 170 sets out the approach to be followed in Section 15 claims (paragraph 31):(a) A Tribunal must first identify whether there was unfavourable treatment and by whom: in other words, it must ask whether A treated B unfavourably in the respects relied on by B. No question of comparison arises.(b) The Tribunal must determine what caused the impugned treatment, or what was the reason for it. The focus at this stage is on the reason in the mind of A. An examination of the conscious or unconscious thought processes of A is likely to be required, just as it is in a direct discrimination case. Again, just as there may be more than one reason or cause for impugned treatment in a direct discrimination context, so too, there may be more than one reason in a section 15 case. The ‘something’ that causes the unfavourable treatment need not be the main or sole reason but must have at least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it.(c) Motives are irrelevant. The focus of this part of the enquiry is on the reason or cause of the impugned treatment and A's motive in acting as he or she did is simply irrelevant.(d) The Tribunal must determine whether the reason/cause (or, if more than one), a reason or cause, is “something arising in consequence of B's disability”. That expression ‘arising in consequence of’ could describe a range of causal links.(e) This stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator.(f) The statutory language of section-on 15(2) makes clear that the knowledge required is of the disability only and does not extend to a requirement of knowledge that the ‘something’ leading to the unfavourable treatment is a consequence of the disability.[148]It does not matter precisely in which order these questions are addressed. Depending on the facts, a Tribunal might ask why A treated the claimant in the unfavourable way alleged in order to answer the question whether it was because of “something arising in consequence of the claimant's disability”. Alternatively, it might ask whether the disability has a particular consequence for a claimant that leads to ‘something’ that caused the unfavourable treatment.[149]In respect of S15 (1) (b), the Tribunal must objectively balance whether the conduct in question is both an appropriate and reasonably necessary means of achieving the legitimate aim. In Birtenshaw v Oldfield [2019] IRLR 946, the EAT held that the Tribunal's consideration of that objective question should give a substantial degree of respect to the judgment of the decision-maker as to what is reasonably necessary to achieve the legitimate aim provided he has acted rationally and responsibly.[150]We were also referred to the following authorities.[151]It is not a “but for” her disability test - Robinson v Department of Work and Pensions [2020] IRLR 884. The tribunal needs to make factual findings about what, objectively, really caused the Claimant’s resignation, by examining all the evidence available to it - McQueen v The General Optical Council [2023] EAT 36 (10 March 2023, unreported).[152]In Kapadia v LB Lambeth [2000] IRLR 699, CA, the Court of Appeal held that whilst there will be cases in which a fact−finding tribunal is not obliged to accept uncontested medical evidence given to it the Tribunal should not seek to substitute, for the medical opinions, their own impression of the claimant.[153]We were further referred to Hall v Chief Constable of West Yorkshire Police [2015] IRLR 893, City of York Council v Grosset [2018] IRLR 746, CA, Department of Work and Pensions v Boyers [2022] IRLR 741. Failure to make reasonable adjustments[154]Sections 20 and 21 of the Equality Act 2010 set out the duty to make reasonable adjustments. In this case, it is the duty arising under S20 (3) EQA 2010. The Tribunal must consider first of all the PCP applied by the employer, secondly the identity of non-disabled comparators (where appropriate) and thirdly the nature and extent of the substantial disadvantage suffered by the Claimant. (Environment Agency v Rowan 2008 ICR 218, EAT). The question whether the proposed steps were reasonable is a matter for the ET and has to be determined objectively.[155]We were referred to Royal Bank of Scotland v Aston [2011] ICR 632 and Tarbuck v Sainsbury’s Supermarkets Ltd 2006 IRLR 664, EAT. In Tarbuck the EAT held that a failure by the employer to consult the employee about reasonable adjustments could not, in itself, be a breach of the duty. Engaging in consultation or requesting a medical report are not “steps” of that type, because taking either of those steps would not in itself have any impact on the substantial disadvantage. “The only question is, objectively, whether the employer has complied with his obligations or not. That seems to us to be entirely in accordance with the decision of the House of Lords in Archibald v Fife Council [2004] ICR 954. If he does what is required of him, then the fact that he failed to consult about it or did not know that the obligation existed is irrelevant. It may be an entirely fortuitous and unconsidered compliance: but that is enough. Rentokil Initial v Miller: Judge Auerbach [2024] IRLR 631 Conversely, if he fails to do what is reasonably required, it avails him nothing that he has consulted the employee”. Conclusions Direct disability discrimination[156]There were 6 acts of less favourable treatment relied upon. The comparator is a hypothetical comparator was a man (now immaterial given the withdrawal of the sex discrimination claim) who did not have ADHD or depression and anxiety, but with no materially different circumstances to the claimant’s:• with the same experience, qualifications, abilities, behaviour and conduct as the claimant;• with 13 years’ track record with the respondent;• who had positive appraisals and had recently been awarded significant increase to remuneration;• who had resigned or threatened to resign previously, in the same way as the claimant had,• who had given the same explanation at the time of her resignation as the claimant had, including regarding remuneration and intention to seek better remuneration elsewhere;• where the respondent had taken the same action in response to the resignation, and before the attempted withdrawal, and• who resigned and then, after the same period between the claimant’s resignation and attempted withdrawal, sought to withdraw the resignation, explaining that the resignation was given in circumstances of ill health and extreme stress.[157]In submissions, the claimant’s position was that she was her own best comparator as when she appeared mentally ill previously, Ms Jessop would not accept her resignation.[158]In relation to the question of the comparator we consider this is a case where initially the focus should be on the reason why the claimant received the less favourable treatment. Acts of less favourable treatment[159]When considering the way in which this complaint has been presented, in our judgment the six acts of less favourable treatment are in fact one act – the decision not to permit rescindment. The other alleged acts (taking into account previous resignations etc) are allegations of factors contributing to that decision. The crucial question is: what was the reason the respondent refused to allow the claimant to rescind her resignation? Decide at or about 06 July 2022 not to allow the Claimant to continue in her employment and choose to maintain refusal to continue the Claimant’s employment[160]The claimant’s case was the reason why the respondent refused to rescind her resignation was because of her disability.[161]Our findings of fact as to the reasons why Ms Jessop refused to accept the claimant’s request to rescind her resignation on 6 July 2022 are at paragraphs 81-89 and 136-137. As of 6 July 2022 when Ms Jessop decided not to accept the rescindment, Ms Jessop did not understand that the claimant was resigning because of her disabilities and this was a reasonable understanding. The claimant had provided plausible reasons for her resignation being the intention to earn more money as an interim in London. The reasons she did not accept the rescindment at that stage was because she believed it would have been de-stabilising. The reason was not because of the claimant’s disabilities.[162]We find this to be the case even taking into account what the claimant told Ms Jessop at the meeting on 6 July 2022 (that she had stopped taking her medication, had gone back on them and was feeling better but not been herself). We do not consider that what the claimant told Ms Jessop was enough to have triggered or established an unconscious or conscious bias in her mind that the claimant’s resignation had been because of her disabilities and as such does not establish the necessary bias to show the refusal to accept the rescindment was because of the disabilities. Secondly, we consider the timing of the decision to be highly relevant. The decision had been formulated on the drive to work before the claimant and Ms Jessop even had had the discussion. Whilst that decision was not set in stone, the decision was formulated even if could be said that that conversation should have led Ms Jessop to understand that the claimant was attributing her decision to her disabilities. In our judgment this is an attempt to fit a direct discrimination claim into what really is a s15 claim. In support of our conclusions we also took the following into account:[163]On other occasions where the claimant has resigned in circumstances where she was obviously unwell, Ms Jessop refused to accept that resignation because she was unwell. This in our judgment rather than assisting the claimant in being her own best comparator, significantly undermines the claimant’s direct discrimination claim. It supports our conclusion that Ms Jessop could not made the decision to refuse to allow the claimant to rescind a resignation because of her disabilities as on every other occasion where she had believed the claimant to be unwell, she had done exactly that.[164]We have carefully considered whether Ms Jessop’s notes support the position that the claimant’s mental health was the motivating factor. We were invited to conclude that Ms Jessop’s comments in her Initial Statement document raised a prima facie case with the burden shifting to the respondent for an explanation. The first version of those notes (see paragraph 92-93) do not in our judgment shift the burden to the respondent. The notes corroborate that Ms Jessop understood the claimant’s stated rational to be the reason for her resignation at the time. In particular where Ms Jessop stated “I accepted her resignation as despite the fact she was upset I understood her rationale and believed it was best for her and the team who have all being (sic) impacted to a greater or lesser extent”. Ms Jessop talked about the mental health of the team (our emphasis) rather than anything relating to the claimant’s mental health.[165]Ms Jessop accepted under cross examination that cross examination that the claimant’s disability and the effect on others was on her mind but this was not the main reason she refused to rescind Take account of previous “threats” to resign, and assume such would be repeated;[166]There were two references by the respondent to the claimant’s previous resignations. The first was in Ms Jessop’s email of 5 August 2022 (paragraphs 106) and the second was in the solicitor’s letter dated 26 August 2022 (see paragraph 109).[167]There are two parts to this allegation. Firstly that the respondent took into account previous threats to resign and secondly that there was an assumption such would be repeated.[168]We have concluded that there were a number of reasons the respondent took into account previous resignations and / or threats to resign none of which were because of her disability. These are as follows. Firstly, because of Ms Jessop’s concerns over de-stabilisation to the team of repeated resignations or threats to resign rather than the claimant’s disabilities. We have taken again taken into account the fact that when previous resignations occurred where the claimant was plainly unwell they were refused (see above).[169]In relation to the second aspect of this allegation. We have concluded that the reason Ms Jessop took into account that the claimant might resign again in the future was not because of the disabilities but because Ms Jessop reasonably believed that one of the reasons the claimant had resigned was due to pay dissatisfaction and she knew she could not alleviate this. This was plainly set out in the solicitor’s letter of 26 September 2022. See findings at paragraphs 109.[170]This complaint is not well founded. Choose not to refer the Claimant to an Occupational Health Physician;[171]See our findings of fact at paragraphs 35-39 and 109. The reason the claimant was not referred to occupational health was that the respondent considered the claimant could have self referred given her seniority and knowledge within her role and also that the claimant had refused help when offered having instructed a private psychiatrist. Whilst the first reason may be somewhat misguided the reasons were nothing to do with the claimant’s disability. This complaint is not well founded. Choose to disregard the Claimant’s subsequent explanation for her resignation;[172]We did not hear submissions about this allegation and it was not pursued with any vigour as a direct discrimination claim. There were a number of individuals involved in this decision making process. The claimant provided explanations for her resignation on a number of occasions. The first time was at her meeting with Ms Jessop on 6 July 2022 (see above). We have already concluded that Ms Jessop’s reasons for not accepting this explanation at that time was not because of the claimant’s disability. Subsequently the claimant provided a more detailed explanation in her emails on 28 July 2022 to the leadership team and then the board (see paragraphs 101-103), where it can be in no doubt she made the link between her resignation and her disabilities). Ms Jessop reiterated the decision that she would not be permitted to rescind thereby disregarding the claimant’s explanation.[173]In our judgment, the reason Ms Jessop disregarded the claimant’s subsequent explanation for her resignation was that she did not believe the claimant’s explanation. She believed it to be for all the reasons we have set out above. The reason was not because of the claimant’s disability. This complaint is not well founded.[174]Lastly, there were two further decisions that could be said to have been taken disregarding the claimant’s explanation namely the grievance outcome and appeal. This was not pursued at all at the hearing. There was no evidence to suggest that either Mr Lewis or Mr Forbes reached their conclusions on the grievance because of the claimant’s disabilities. Choose not to consider reasonable adjustments to allow employment to continue[175]This is essentially reasonable adjustments claim pleaded as a direct discrimination claim. This was also not effectively pursued. In any event we find the complaint not well founded taking into account our conclusions above about the reasons for the respondent’s decisions after the claimant attempted to rescind the primary reason being that they did not accept the claimant’s later attempts to attribute her resignation to her disabilities. S15 discrimination arising from disability[176]There are 5 acts of unfavourable treatment relied upon. The focus of both parties in this claim certainly in submissions was the refusal to allow the claimant to rescind her resignation. We therefore deal with those proportionally as follows.[177]Took account of previous offers or expressed consideration of resignation and disregarded or refused to accept the Claimant’s subsequent explanation for her resignation;[178]See our discussion above as these complaints were also pleaded as a direct discrimination claim.[179]We have concluded that both of these complaints are essentially complaints about the mental processes engaged in reaching a decision which was cautioned against in T-Systems Ltd v Lewis. The unfavourable treatment in this case was the decision not to allow the claimant to rescind her resignation. That is what is said to have put the claimant at the disadvantage. These complaints are not well founded. Chose not to refer the Claimant to an Occupational Health Physician[180]See our discussion above as this was also pleaded as a direct discrimination claim. We first of all consider whether a decision not to refer the claimant to occupational health was unfavourable treatment. No question of comparison arises.[181]As the claimant’s submissions did not address this complaint, we have considered the pleaded claim and list of issues to inform our conclusions. It was unclear when this particular omission or failure to act was said to have occurred or been decided upon which differs from the reasonable adjustments claim (see below) which is made up of two distinct allegations as to when the claimant should have been referred to occupational health. We are also unclear as to how the choosing not to refer to occupational health amounted to unfavourable treatment and when in the context of the s15 claim. In our judgment this claim has not been proven by the claimant at this first stage.[182]In our judgment, even if the omission to refer to the claimant to occupational health was unfavourable treatment the cause of that treatment was, as we have found above, that the respondent considered the claimant could have self referred given her seniority and knowledge within her role and also that the claimant had refused help when offered having instructed a private psychiatrist. This was not the” something arising” relied upon by the claimant. Refused the Claimant’s request to rescind her resignation and chose not to consider allowing the Claimant’s employment with the Respondent to continue at all Was there unfavourable treatment and by whom?[183]There was no dispute that the refusal to allow the claimant to rescind her resignation by Ms Jessop, backed by the board was unfavourable treatment. It had a significantly detrimental impact on the claimant as far as her employment was concerned. Her employment came to an end. What caused the treatment, why did the respondent refuse to permit the claimant to rescind her resignation?[184]There are a number of factors to this question which have required careful findings of fact and those findings were always going to inform the outcome in this case which is why we have set these out in some detail above and why our conclusions in this regard can be relatively short. We have no doubt that the reason for the refusal was at all times the respondent believed permitting the claimant to rescind her resignation would be destabilising to the business and later, when she attributed the resignation to her disability, the respondent simply did not accept the claimant’s assertions relying instead on what her previous expressed reasons had been.[185]However in our judgment this does not assist the respondent. Motives are irrelevant. We agree with the claimant’s submission that the expert psychiatric evidence as well as our findings of fact establishes the required link between the disability and the resignation. There is no requirement for knowledge that the “something arising” leading to the unfavourable treatment is in consequence of the disability.[186]We now turn to s15 (1) (b). We set out our conclusions firstly about whether the respondent has established legitimate aims for the treatment.[187]The legitimate aims were “to maintain reasonable operational integrity and expediency and/or to achieve and maintain stability within the small number of senior executives within its business”.[188]In our judgment the claimant’s seniority within the leadership team was critical. The resignation was announced to the leadership team on 23 June 2022. The reason given with the claimant’s approval was that she was going to pursue a career in the professional interim marker. The leadership team would have known that two other HR members of staff had also done the same thing. The resignation must have quickly become known amongst the workforce, well known both internally and to a degree externally. The unions had been informed. The recruitment consultants were actively engaging with potential candidates. At such a senior level had the respondent suddenly withdrawn the recruitment exercise this would have led to questions from potential candidates about how stable any such future role might be. The claimant had resigned verbally and confirmed this is writing. The resignation had been accepted. Whilst the period in between resignation and rescindment may have been relatively short in our judgment this has to be balanced against what happened during that period as set out above and the impact on the respondent’s business. We agree that allowing the claimant to rescind in the above circumstances would have been destabilising and Ms Jessop had reasonable and legitimate reasons for refusing her to do so, which amount to legitimate aims.[189]We turn now to proportionality. In reaching our conclusions we have had regard to the authorities of Birtenshaw v Oldfield and Department of Work and Pensions v Boyers. We must weigh the aims of the respondent against the discriminatory effect of the treatment and assess whether the former outweighs the latter.[190]The respondent submitted that the legitimate aims could not have been achieved by allowing the resignation to be rescinded. Much was made of the claimant’s comment at the meeting with Ms Jessop where she suggested taking things on a “month by month basis”. We do not consider this was a serious or well thought out suggestion being made by the claimant. The claimant was effectively grabbing at straws at this stage trying to retain her role. We agree that this would not be a proportionate means of achieving the aims as it would be highly disruptive to the stability of the organisation to permit such a senior individual to decide on a month by month basis whether they were staying or going.[191]The respondent did not consider less discriminatory alternatives to not permitting the claimant to rescind her resignation. In our judgment as of 27 July 2022 at the meeting between Ms Jessop and the claimant and then by reason of the claimant’s email of that date the respondent was on explicit notice that the claimant was attributing her decision to resign to her disabilities and the impact of the medication changes. The respondent closed its mind to this position because, as we found above they simply did not accept this to be true. We agree with the claimant’s submission that the respondent should have taken steps to properly inform themselves as to how the claimant’s mental health and ADHD had affected her decision to resign and had they done so they would have known either by provision of the claimant’s own ADHD assessment or their own advisor’s assessment about the claimant’s problem areas that impacted on her decision to resign. In particular, the impulsiveness, extreme reactions to criticisms (as can be seen from her reaction to when Ms Howell told her M had called her a bully) and what the experts and the claimant said about her masking behaviour.[192]Instead the respondent reached their decision based on their own observations, opinions about the contextual background and judgments of the claimant’s behaviours at the time. Whilst we acknowledge the respondent were initially entitled to have taken the claimant at her word as to the reasons for her resignation in our judgment this position should have been reassessed around 27 / 28 July 2022. The respondent was not qualified to make those assessments once they were on notice of what the claimant told them had really been going on in her mind at the relevant time. They were not qualified to do so and their disbelief of the claimant caused them to close their minds to any suggestion that the claimant’s resignation was attributable to her disabilities. The Tribunal was unable to understand why the respondent did not pause and take some proper informed medical advice concerning the disabilities, the impact on the claimant’s behaviour and prognosis to then be in a position to truly assess whether the refusal to allow the rescindment would achieve their stated aims. They may well have still been in a position to decide that the rescindment had to stand although such matters will have to be reserved for remedy.[193]We reject the respondent’s submissions that a referral to occupational health would have made no difference to the outcome. Whilst the claimant was a senior employee and could have referred herself to occupational health this does not negate the respondent’s responsibility as the employer to make those decisions. The Tribunal considers that the claimant was not adequately managed by the respondent both in terms of her previous behaviour and how this had impacted on other employees and in terms of the claimant’s own mental health issues and the ADHD diagnosis. The respondent did operate a caring and close management structure where colleagues were supporting the claimant but this was plainly not enough. The Tribunal were told of at least two occasions where the claimant, who was a senior member of the management team developed and maintained fixations with employees some of whom were subordinate to the claimant. This is demonstrative of an work environment where the claimant’s behaviour was not being appropriately managed especially after the ADHD diagnosis. We make no criticism of the claimant in this regard as it is highly likely that such behaviours were as a result of her disabilities. Nonetheless this does not provide a completely free path for any employer to have to accept such behaviours particularly when they impact other employees. This is the very point of proportionality and the need to balance the discriminatory effect of the treatment against the legitimate aims of the respondent.[194]Further there was a misguided assumption that as the claimant was paying for private psychiatrist she was managing her own condition. The private psychiatrist was not placed to make appropriate work placed assessments nor were they charged with doing so by the claimant. We heard evidence that the respondent had arranged for higher level assessments in appropriate circumstances yet did not do so for the claimant.[195]In weighing up the respondent’s aims and the effect of the discriminatory effect on the claimant we have concluded that the respondent did not implement proportionate means in achieving their aims. This complaint is well founded. It is important to note that this finding will be subject to further necessary findings of fact at the remedy stage. Failure to make reasonable adjustments[196]There were four PCP’s relied upon and we deal with each PCP in turn as follows. Only the first and third PCP’s were addressed in the claimant’s submissions. The Tribunal considers that the claimant has tried to fit a reasonable adjustment’s claim into what was properly a s15 claim as can be seen from our discussion above and in doing so, the PCP’s do not work. Nonetheless we must deal with the complaints and we do so proportionally as follows. Relying on employees’ ability (with or without their colleagues) to ascertain their own need for treatment and to manage their health privately without referral to and supervision of an Occupational Health Physician;[197]Factually this only happened to the claimant. The evidence was that this did not happen with other employees (see paragraph 21 above). We do not agree that there is any evidence that this would a practice repeatable in other cases. This PCP is not valid. Further the alleged substantial disadvantage is not in our judgment made out. The claimant demonstrated good awareness into her own behaviours and this was supported by the expert report. She could recognise her conduct or needs and managed her health at the relevant time as can be seen from her instructing a private psychiatrist for the ADHD diagnosis and then continuing wit the private assessments. Further, applying Tarbuck, a failure to refer to Occupational health cannot amount to a failure to make a reasonable adjustment. This complaint is not well founded. Taking account of and treating repeated offers to resign as being abnormal and as a pattern unacceptable to the business;[198]The claimant did not make submissions about this complaint. The claimant resigned or threatened to resign four times. The respondent on only one occasion decided this was not acceptable to the business. We do not consider this to be a valid PCP as it was a decision taken once and only in respect of the claimant. This complaint is not well founded. Taking at face value an explanation of reason for resignation[199]The respondent accepted that this was a valid PCP applied by the respondent. The substantial disadvantage was said to be “she would be unable to understand or disclose the effective reason for resignation at the time of resignation.” The experts said different things about this (see Dr Ajaz’s comments at paragraphs 123 and Dr Singh’s at paragraph 124) and we do not think Dr Ajaz directly addressed this question whereas Dr Singh did. This is a different question than the decision to resign which both experts agreed was significantly influenced her mental health as a result of the changes in medication. We conclude that the claimant has not shown the substantial disadvantage. Dr Singh reported that the claimant did have capacity to understand the consequences of the decision to resign and all of the factual matrix of the claimant’s behaviour at that time (the period of time between resigning and rescindment, confirming the resignation in writing, being involved with her replacement) do not support a conclusion that she was unable to understand or disclose the effective reason for resignation to be a substantial disadvantage. In light of that evidence we find the complaint is not well founded. Accepting resignation without proper investigation (including with physicians) or taking proper account of reasons communicated after resignation.[200]We find this is not a valid PCP. It was a decision taken by the respondent in respect of the claimant only and there was no evidence it would be repeated or be capable of being repeated. We also consider that this is essentially an allegation of a failure to consult the claimant about the reasonable adjustments which cannot be a breach of the duty (Tarbuck). We therefore dismiss this complaint as not well founded. JUDGMENT having been sent to the parties on 5 February 2025 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:[1]The claim is listed for a remedy hearing on 10 – 17 June 2025. A dispute arose between the parties as to whether the Claimant had withdrawn a claim for damages to personal injury following a withdrawal by the Claimant. This issue was listed for a preliminary hearing on the above date. The Claimant requested written reasons on 12 February 2025 but this was not drawn to Judge Moore’s attention by the administration until 20 February 2025. These written reasons have been prepared at the first available date given other sitting and writing commitments. The withdrawal[2]On 23 March 2023 there was a Preliminary Hearing before Judge LloydLawrie and it was noted in her Case Management Order at paragraph 23, that the Claimant was seeking compensation for psychiatric injury in the event she succeeded with her discrimination complaints. She was given permission to submit an expert medical report by 4 May 2023 should she wish to rely on the same. There was a discussion recorded that the Claimant may no longer seek to bring a personal injury complaint. Judge Lloyd-Lawrie directed that should the Claimant decide this to be the case she was to notify the Respondent that the report would no longer be required.[3]Thereafter, on 6 April 2023, the Claimant’s solicitors wrote to the Tribunal, copying in the Respondent, attaching post amendments to a list of issues which was attached to that covering email. In the document described as an amended agreed list of issues, at paragraph 20 under Remedy, it was stated as follows: Without impact on consideration of any award for injury to feelings, the Claimant withdraws any discreet claim of compensation for psychiatric injury.[4]In light of that communication on 19 April 2023, the Respondent wrote to the Tribunal and the Claimant confirming that as the Claimant was not pursuing a claim for psychiatric injury, they would no longer seek to permission to instruct their own medical expert on this particular issue. After the Respondent’s communication on 19 April 2023, the file was referred and Judge Jenkins made a number of orders on 28 April 2023 but no dismissal judgment pursuant to what was then Rule 52, was issued.[5]On 3 May 2023 the Claimant’s solicitor, Mr Jackson, wrote to the Respondent’s solicitors setting out why the expert report was needed. In that email he referred to the above withdrawal wording communicated on 6 April 2023 and asserted it had been a “proposed amendment” to the list of issues and that no amendment had been accepted by the Tribunal.[6]Thereafter there was further correspondence between the parties following the claimant’s indication she intended to pursue a personal injury complaint notwithstanding her withdrawal. This was referred and Judge Harfield decided that a further Preliminary Hearing would need to be listed. There followed a Preliminary Hearing before Judge Brace order on 18 May 2023 and her Order sets out how the dispute had subsequently arisen. I do not repeat those background details here. She set out the discussion by Judge Lloyd-Lawrie and then the correspondence of 6 April 2023 and 19 April 2023.[7]In Judge Brace’s order she recorded that the issue had arisen between the parties as to whether or not the Claimant had withdrawn the complaint for personal injury. She directed that this issue would be decided by the trial judge, either at the main hearing or subsequently. That is how the Preliminary Hearing has come about.
The Law
[8]Rule 51 of the Employment Tribunal Rules of Procedure 2024 provides: Dismissal following withdrawal 51. Where a claim, or part of it, has been withdrawn under rule 50 (end of claim), the Tribunal must issue a judgment dismissing it (which means that the party advancing it may not commence a further claim against the party responding or replying to it raising the same, or substantially the same, complaint) unless—(a) the party advancing the claim has expressed at the time of withdrawal a wish to reserve the right to bring such a further claim and the Tribunal is satisfied that there would be legitimate reason for doing so, or(b) the Tribunal believes that to issue such a judgment would not be in the interests of justice.[9]I wrote to the parties in advance of the hearing as neither of their advance written submissions mentioned the EAT decision in Campbell v OCS UKEAT/0188 which I considered to be highly relevant. This decision summarised all the authorities thus far on this area, specifically the case of Khan v Heywood and Middleton Primary Care Trust [2006]. It held that where a claimant withdraws a claim, it comes to an end and cannot be revived (Rule 51 of the 2013 Rules). A tribunal must issue a dismissal Judgment following withdrawal unless either of the exceptions in Rule 52 apply. Tribunals are not under a mandatory obligation to invite representations from the parties before dismissing a withdrawn claim but depending on the facts and circumstances of the particular case, may in exercise of their power to manage proceedings fairly, and in accordance with the overriding objective, do so. Whether or not to do so is a matter of judgment falling squarely within the margin of a tribunal’s discretion.
Conclusions
[10]Having regard to those authorities, in my judgment, the wording of the withdrawal contained in the proposed amended list of issues dated 6 April 2023, could not have been any clearer. It was a clear, unambiguous and unequivocal withdrawal of the discreet claim for compensation for psychiatric injury. I reject the argument that this was in some way an application that was not granted. It was not worded as an application to amend or even as an application to withdraw. Further, Rule 51 does not require an application to be made nor is there any requirement for judicial consideration regarding the withdrawal (other than the dismissal) neither is any permission required to withdraw the claim.[11]Rule 51 provides that where a claim, or part of it, has been withdrawn under rule 50 (end of claim), the Tribunal must issue a judgment dismissing it unless—(a) the party advancing the claim has expressed at the time of withdrawal a wish to reserve the right to bring such a further claim and the Tribunal is satisfied that there would be legitimate reason for doing so, or(b) the Tribunal believes that to issue such a judgment would not be in the interests of justice.[12]Rule 51 (a) did not apply in this case. I therefore considered whether there were any of the circumstances that could lead me to conclude it would not be in the interest of justice to issue the judgment dismissing the complaint.[13]In doing so I have taken into account that the Claimant was legally represented by solicitors and had had a conference with Counsel and her instructing solicitors before the withdrawal was communicated to the Tribunal. In the Claimant’s submissions it was asserted that the decision, notwithstanding it had been taken after a meeting with Counsel and solicitors, had arisen from the Claimant’s disability. It was submitted that at the time the decision was made the Claimant appeared to have good insight into her condition and moreover that her advisers were completely unaware of the possibility of masking, which is a reference to ADHD behaviours. The Claimant submitted that at the time it was understood the Claimant understood the legal consequences of withdrawing the claim but further evidence has come to light which should mean that that decision making process should be treated with a great degree of caution. In effect, the decision making process arose from the Claimant’s disability and therefore, that it would not be in the interests of justice to issue the dismissal judgment.[14]The Claimant also relies on s119 and s124 EQA not requiring an expressly pleaded PI claim within an ET1. I agree with Ms Moss that this is very different to this case where it was pleaded and the unequivocally withdraw.[15]The consequence of not issuing the judgment on withdrawal would be to enable to Claimant to either present a fresh complaint for personal injury or resurrect the claim that has been withdrawn.[16]The Claimant did not dispute that the Respondent has relied upon the withdrawal in withdrawing an application for their own medical expert. The Claimant says this does not matter as experts are now needed for other aspects of remedy in any event. This does not take into account the prejudice one party would experience should another party be permitted to withdraw claims and revive them. There must be finality to litigation in particular in this case to have enabled the Respondent to make informed decisions on the litigation risk when proceeding to the final hearing.[17]I have taken into account the only evidence I have on masking that is before me contained in the judgment on liability at paragraph 125 where we quote what the experts says about masking in the agreed joint statement. The experts agreed that it is common for people with ADHD to exhibit masking behaviours, more so with females and it was likely to have applied to the Claimant. however they go on to say that it was difficult in retrospect, to quantify the degree of masking behaviour the Claimant exhibited around the material time. That is the only evidence I had before me as to how masking might have affected the Claimant.[18]I do not have any specific evidence that the time she gave instructions to her Representatives to withdraw the personal injury complaint, that she was experiencing masking or that masking influenced that decision. Had this been the case I would have expected a witness statement from the Claimant setting out such evidence and perhaps further medical evidence. In fact, what I know about that decision, does not support that masking could have been in play. There was explicit sensible reasoning set out by her legal team for the withdrawal namely that the decision to withdraw a separable claim for damages for personal injuries and psychiatric loss was thought to be appropriate, balancing the limited amount of expected damages over and above the compensation for injury to feelings against the potential delays and costs of attaining expert evidence.[19]For those reasons it is in the interests of justice to dismiss the claim.[20]The claimant had expressed she would never become a “Minto”. We do not accept this was only in the first five years of her employment. This reflected her actual position.[21]We have taken into account the previous resignations and that they occurred in periods of instability. We do not think this overrides the other contemporaneous evidence that on the balance of probabilities show the claimant intended to retire aged 60 – 61. Pay increases between dismissal to date[22]The respondent has provided evidence of annual pay awards in respect of another exec team member on the same salary trajectory and parameters of the claimant. For these reasons we accept this evidence as reflecting the pay increases as between 4 – 5% which the claimant would have received but for the discriminatory acts. STIP and LTIP bonuses[23]There were two discretionary bonus schemes applicable to the claimant. The bonus year runs from 1 April to 31 March and a full bonus year must have been completed. The first is the STIP bonus of up to 30% based on individual performance (5% - to set objectives) as well as the performance of the respondent. In June 2021 the claimant received a pre tax bonus of £32,335. No STIP was paid for 2022-23 as the claimant had not worked the full year, her employment ending on 30 September 2022.[24]Since April 2023 no STIP bonuses have been paid to any of the exec team. As such, the STIP bonus due to the claimant would be limited to the period September 2022 – 31 March 2023.[25]The LTIP bonus was a 3-year duration scheme accruing each year and payable at the conclusion of that period. It is based on business performance. The scheme changed in 2014 / 2015. As at the termination date, the claimant was eligible for a 25% LTIP accrual across the 3 years, based on average salary and linked to both business and personal performance. Everyone receives the same percentage of salary and therefore the more someone earned the more LTIP they would receive.[26]Had the claimant remained employed, she was due an LTIP in payment in June 2023, comprising 2020/21, 2021/22 and 2022/23. The total sum that would have been owing to the claimant provided all parameters had been met would have been (pre-tax) £29,254, based on her average earnings over those 3 years.[27]As with the STIP, as the claimant had resigned prior to the LTIPs maturity, she was not entitled to the bonus payment. Ms Jessop made a proposal to RemCo on 25 July 2022 asking that consideration be made to a pro-rata payment of the accrued LTIP up to the point of resignation which was approved. The claimant received the sum of (pre-tax) of £14,314 as a goodwill gesture.[28]Since 2023 no accruals have been made for any of the persons eligible for the LTIP targets to date.[29]The claimant asserted that her LTIP estimates should be compared with Ms Jessop and Mr John and also a better indicator would be to look at the historical figures. We do not agree with this for two reasons. The terms of the bonus mean it is based on a salary percentage. As such, a comparison with someone not on a similar salary is neither within the terms of the scheme nor does not make any sense. Further, it would not be appropriate to base the bonus on historical figures as the scheme changed in 20215/15 and it is based on business performance. A much better indicator is how the business has performed since the dismissal and what someone equivalent has actually received.[30]For these reasons the claimant’s LTIP loss shall be evaluated using the comparator put forward by the respondent, subject to the withdrawal factor and mitigation conclusions we have made.[31]In September 2022 the claimant suffered an acute depressive relapse requiring crisis team intervention and an increase in Sertraline to 150mg daily. After two short holidays abroad in September and October 2022 the claimant felt able to start looking for work in mid October 2022 first contacting a number of agencies, checking LinkedIn and then applying for roles. Interim roles[32]The claimant’s evidence to the Tribunal was that she decided at that time she was not strong enough to handle contract / interim work. This differed to what she told a recruitment agent on 11 October 2022 where she stated she was open to contract or interim roles.[33]The claimant agreed under cross examination that she was aware of “the great resignation” a term coined to describe post Covid resignations of people who then got remote roles in London and the south east. The claimant told the Tribunal she ruled out any interim role on the basis such roles were now requiring office based attendance 2-3 days a week but this is not what the evidence before us showed to which we address below. Job applications and search for work from 12 October 2022[34]Between 12 October 2022 to 30 November 2022 the claimant applied for 19 roles in senior change management or HRD roles and got 5 interviews. In respect of one of those positions she was successful (“T&T”) and was offered the role of Principal Consultant on 13 December 2022 with a start date of 9 January 2023. In the original offer the role was to be based at the Bristol office but it was subsequently agreed the claimant could be based at the Cardiff office along with working from home. The delay in the start date was not because the claimant wanted Christmas off but because it suited her new employer.[35]There was a pause between 30 November 2022 and 15 February 2023 in the claimant applying for jobs. The claimant wanted a permanent job close to home or working at home as she did not feel able to cope with working away from home or long commutes. We agree it would not have been reasonable for the claimant to give up the permanent T&T role for a temporary / interim role even if it was better paid given the financial security the permanent role brought. We agree that given the claimant had secured the T&T role at that time and her recent mental health relapse, it was not unreasonable to have paused her efforts to mitigate.[36]Between 15 February 2023 to 2 November 2023 the claimant applied for a further 26 roles (so an average of 4 per month) and attended a further 4 interviews but was unsuccessful in all of these applications. The claimant found the rejections demoralising and was concerned that applying for jobs would take her focus away from her role at T&T. We find that the claimant could reasonably have applied for more roles and do not accept that this would have impacted on her current role as suggested particularly given the process now for most applications is to apply on LinkedIn where her CV would have already been uploaded or at initial application stage be a short process. The claimant described the last job she applied for as a fanciful application but this did not prevent her from applying.[37]In January 2024 the claimant decided she would not apply for any further roles at all. The claimant told the Tribunal this was so she could focus on her role at T&T and this has remained the same save for one application for a Competition role within the civil service.[38]It was put to the claimant she should have applied for roles in the civil service in order to mitigate her pension loss, but the claimant told the Tribunal she would not consider the civil service as this was not where her career was and did not have civil service background. She agreed she had not considered applying for any civil service roles save the one mentioned above.[39]The claimant is very happy in her existing role describing herself as thriving again and has received several accolades. The claimant is concerned about job security in that if she did secure another role in light of her age, disability and history of these proceedings she would not have job security which would cause her anxiety and depression. See also the expert advice of Dr Navabi below.[40]In her current role the claimant works away between 5-8 days per month in London or Sheffield and is able to do the London trip there and back in one day.[41]In January 2024 the claimant had time off work due to the impact of the ET hearing but was back in work after a week. Respondent’s evidence on mitigation[42]The respondent had collated extensive evidence on HR director / change consultant roles. There were over 110 pages of jobs advertised between April 2023 to 8 September 2023 and between September 2023 and November 2024 a further 180 or so pages.[43]The Tribunal considered these roles carefully. We only considered roles that said they were hybrid, remote and based within a similar travel distance to what the claimant is now undertaking. The evidence shows there were multiple roles available. By way of example: Pa Date Compa Title Pa Base IP/Remo ge ny y te? N o 29 28/04/ Michael HR 75 Newpo Unclea 0 2023 Page Direct – rt r or 80 K 29 28/04/ Gleeso Head 80 Birming 2 days 1 2023 n of – ham on site Recruit Talent 85 ment Acquis k Group ition 29 11/05/ Executi Head 15 London Hybrid 3 2023 ve of HR 0k remote Networ Operat k Group ions 29 11/05/ Michael HR 10 Slough Remote 3 2023 Page Direct 0 or – EMEA 12 0K 29 11/05/ Corring Global 10 West Remote 4 2023 ton HR 0 End Recruit Manag – ment er 11 Solutio 0k ns 30 18/05/ Michael HR 10 Slough Remote 0 2023 Page Direct 0 or – EMEA 12 * 0K 30 18/05/ Michael Head 10 London Hybrid/re 0 2023 Page of HR 0 k mote – Financ ial Servic es 30 18/05/ Executi Head 15 London Hybrid 0 2023 ve of HR 0k Networ Operat k Group ions 30 26/05/ Dept 93 Saffron Hybrid 2 2023 Head – Walden of HR 11 5K 30 26/05/ Frazer HR 14 London Hybrid 3 2023 Jones Direct 0 or – 0k 30 02/06/ Clp Life HRIS 10 London Remote 6 2023 Scienc Workd 0k es ay Direct or 31 09/06/ The Head 80 London Remote 0 2023 Consult of HR - ancy 10 Group 0k[44]In addition, between September 2023 and November 2024 there were multiple HR Director roles in London, Reading, Bristol with salaries ranging between £70,000 - £160,000. These were not fanciful or unrealistic roles. The claimant was qualified for most of the roles many mentioning hybrid work of 2- 3 days in the office which was relatively close to what the claimant is now doing by travelling to London and Sheffield.[45]Of all of the job advertisements only one said it was office based. Based on the evidence before us we find that if a role was going to be purely office based the advert would say so. Further, we can see from the claimant’s actual experience from her T&T appointment that even a role that appears to be office it could end up with a different location and home working for the right candidate. Civil Service roles[46]The 2024/2025 pay bands and grades are as follows: Grade 7 - £55,970 to £67,6331 Grade 6 - £70,575 - £78,813 SCS Band 1 £75,000 to £117,800 SCS Band 2 - £97,000 - £162,500.[47]The following roles were available during the period between termination and the remedy hearing - Civil Service HRD posts at grades 6, 7, SCS 1 & SCS 2. DATE Vacancy Title Grade Location 10 Nov HR Business Grade Belfast, Bristol 22 7 13 Jan EOI HR Business Grade Cardiff East 23 partner 7 13 Jan HR Business Partner Grade Cardiff, Leeds 23 7 20 Jan HR Director SCS1 Bristol, London 24 HR Business Grade Belfast, Cardiff March Partnering &People 6 7 Sept Senior HR Business Grade Wales 23 Partner 6 3 Dec 23 HR Business Partner Grade Belfast, Cardiff 17 Jan HR Business Partner Grade Swansea 24 7 30 May Senior HR Business Grade Belfast, Cardiff 24 Partner 7 Allegations of bullying[48]In the liability judgment we made some findings regarding previous occasions where the claimant had behaved inappropriately or there had been allegations of bullying made against her (see paragraphs 20, 23, 24, 26, 54,67, 69 and 193).[49]In making the following findings we acknowledge that the some of the claimant’s behaviour has been affected by mental health crises and her undiagnosed ADHD (see below) and that these findings are likely to make uncomfortable reading. This does not derogate from the Tribunal’s obligations to make relevant findings of fact on the issues before us.[50]It is important to note that Tribunal’s findings as to why the respondent refused to rescind the claimant’s resignation. This was not because of her behaviours which the respondent has now fully ventilated at the remedy 1 There are two grade 7 ranges hearing by Mr Millard and Mr John’s evidence, in the main because these behaviours were not fully known about by Ms Jessop when she made the decision not to permit rescindment. At paragraphs 184 of the liability judgment our conclusions were: There are a number of factors to this question which have required careful findings of fact and those findings were always going to inform the outcome in this case which is why we have set these out in some detail above and why our conclusions in this regard can be relatively short. We have no doubt that the reason for the refusal was at all times the respondent believed permitting the claimant to rescind her resignation would be destabilising to the business and later, when she attributed the resignation to her disability, the respondent simply did not accept the claimant’s assertions relying instead on what her previous expressed reasons had been.[51]It was common ground and the claimant herself described how she had developed a fixation with a colleague we previously referred to as “M” in our judgment on liability. This was Mr Sean Millard, Chief Growth Officer, who gave evidence at the remedy hearing (he had not been called to the liability hearing).[52]Mr Millard initially had a good relationship with the claimant but around November 2020 this changed following the classification of “e-waste” recovery as a diversification business. This had formerly sat within Mr Millard’s team but the claimant wanted to take more control of the project considering it to be part of her new business remit. The claimant began to deliberately ignore emails, persistently challenging Mr Millard’s accountability over the project in meetings and excluded him from a critical process related to the initial development of an emerging technology by progressing the testing of a piece of technology without his input.[53]In 2021 the situation deteriorated to the extent that Ms Jessop had to intervene and take on Mr Millard’s line management. Mr Millard told the Tribunal that the claimant’s behaviours had escalated to the point they had become so obstructive to him and his team he considered leaving. He was unaware until the proceedings that the claimant had told Ms Jessop that Mr Millard must leave or she would resign.[54]In 2022 the claimant developed the fixation with Mr Millard. Mr Millard told the Tribunal that this manifested itself by the claimant routinely created obstacles in his projects: highlighting unsubstantiated problems, using risk assessments in his view, to deliberately delay progress, introducing unnecessary reviews and reporting, and delaying meetings to deliberately slow things down or take control. He described that time as working through “a lot of treacle”.[55]The Tribunal did not hear about this event at the liability meeting. At a managers away day in April 2022 in Bath, the claimant apologised to Mr Millard saying words the effect “I’ve been awful to you”. Mr Millard did not openly acknowledge the apology and in reaction the claimant launched a verbal tirade at Mr John. Ms Howell described this as the claimant turning on Mr John. Ms Jessop pulled the claimant to one side and told her that it was totally unacceptable.[56]After the meeting on 21 June 2022 (see liability judgment at paragraph 67), in which Mr Millard felt the claimant’s behaviour had been very difficult he told Ms Howell and Mr Mills that he could not continue to interact with the claimant and things had become untenable. He said he was going to escalate matters to Ms Jessop and asked if they would support him to which they agreed. At that time Mr Millard did not know the claimant had resigned.[57]The following day Mr Millard had a further conversation with Ms Howell and was persuaded to allow Ms Howell to speak to the claimant to give feedback about how damaging her behaviour was to which he reluctantly agreed. It was this conversation the claimant overheard that Mr Millard had told Ms Howell the claimant was a bully.[58]The Tribunal is unable to understand why Ms Howell would seek to take this approach given the clear impact the behaviour was having on Mr Millard and that it had been agreed the previous day they would collectively go to Ms Jessop about this behaviour and the impact it was having on the executive team. We return to this below.[59]When Mr Millard heard the claimant has resigned he described feeling genuine relief on two grounds; that the bullying would stop and he would not have to escalate the claimant’s behaviour to Ms Jessop. When he became aware the claimant wanted to rescind he says had she been permitted to do so he would have escalated to Ms Jessop who he said could “no longer have ignored the situation” and “would have had to have done something to address the issues and the impact”. He acknowledges he knows now this would have involved making adjustments for the claimant. Mr Millard considers at the very least Ms Jessop would have had to have investigated his concerns. Issues with Leighton John[60]Mr John has been a member of the senior executive team since 2015, pre dating the claimant’s position on the team by about 6 months. He was in an office directly next to the claimant’s for approximately 5 years then adjacent in the open plan layout. Mr John described their relationship as friends albeit cyclical moving between conflict to resolving differences. They were perceived as close by colleagues and Mr John often defended the claimant when her actions had caused upset. When there was conflict the claimant was confrontational and could be aggressive in putting her opinions across in front of others. The claimant was very open with Mr John about her mental health and ADHD diagnosis and he understood some of her behaviours were routed into these conditions.[61]Mr John’s relationship with the claimant eventually deteriorated and he had become frustrated with the perceived leverage by the claimant from her close relationship with Ms Jessop.[62]In April 2022 one of the managers Mr John’s team wanted to leave and Mr John reached a consensus with his team that he would be allowed to resign. This was relayed to the claimant who subsequently and without any further discussion announced publicly that the individual would stay and moreover the energy team (who reported to Mr John) would report to her. When Mr John tried to raise this with the claimant she put her hand up and said, “I know I know, do what you want”; “do what the fuck you want”.[63]In the first week in June 2022 there was a further incident involving the claimant sending Mr John’s team a highly critical email and without discussion had also put Mr John’s name to the email. After apologising to the team and defending the claimant, she put her head around the door where Mr John was meeting his team and acknowledged they were all “pissed off” with her but that they needed to do better and she would not be backing down. Mr John approached her privately and the claimant responded aggressively stating “do what the fuck you want, do what the fuck you want, I don’t care”, “I don’t want to fucking talk about it” and turned her back on Mr John. We repeat our findings at paragraph 134 of the liability judgment that at this time the claimant’s mental health was significantly affected by changes in her medication and that she was effectively according to the experts in a period of significant mental health instability.[64]Mr John did not report this incident to anyone although he had approached Ms Howell in to say the claimant was not speaking to him and asked for advice on how to manger this. Ms Howell had witnessed the claimant becoming heated with Mr John in the open office on many occasions but told the Tribunal she was comfortable the exec team could pull together and support each other with the claimant’s behaviours describing it as something she was comfortable they could manage.[65]Mr John was then on holiday with his family. The situation had affected him and he was withdrawn and worried the claimant would be undermining him with Ms Jessop during his absence. He resolved to raise the issues with Ms Jessop at his next 1-21 meeting[66]This did not happen as the claimant subsequently resigned. Mr John’s explanation for not raising it was that there was no longer any reason to do so, it would have given Ms Jessop a problem and perhaps selfishly, he did not want Ms Jessop to know how bad things were or that he had been struggling to resolve things himself.[67]Mr John then heard a rumour that the claimant had asked to rescind her resignation. His relief at the resignation disappeared and he assumed she would be permitted to rescind. On 28 July 2022 he approached Ms Jessop to ask her about the rumours who told him she had refused the request. It was only at this stage did Mr John tell Ms Jessop he felt the claimant had “damaged his mental health”. Mr John told her about what had been happening and described Ms Jessop as “visibly shocked”. She asked him to write a note of what had happened. Temp Brass document[68]Mr John then drafted the document in word which has been called the Temp Brass document. He saved it and password protected it. He printed a copy and passed it to Ms Jessop which was not an unusual approach for sensitive materials as PA’s have access to and read emails. The document property for the email corroborates the creation and save time of the document. Findings of fact on the counter factual scenario that there would have been an investigation into the claimant’s behaviour had she been allowed to rescind[69]The claimant did not dispute any of the above evidence, pointing to her period of mental health instability at that time as well as her medication instability and ADHD diagnosis. It was the claimant’s case (which we address in our conclusions below) that this was in any event irrelevant as nothing could be done about these matters as they arose from the claimant’s disabilities.[70]Ms Jessop said that she was devastated when she read Mr John’s account and how it had been kept from her. This is surprising given what behaviours Ms Jessop was already aware of such as the verbal tirade at the Bath meeting. She now accepts that she had focussed on supporting Mr Millard but had neglected to support Mr John’s mental health and that it was obvious issues had run much deeper than she had appreciated. Afterwards other people approached Ms Jessop and told her that the claimant had been a bully. After the claimant was placed on garden leave (28 July 2022) Mr Millard also spoke to Ms Jessop openly about the difficulties he had experienced with the claimant and that had she been permitted to rescind he would have raised the behaviours formally. All of this supports our earlier findings that the impact of the claimant’s behaviours in the workplace had not been appropriately managed.[71]Ms Jessop was extensively cross examined on what she then did with the Temp Brass paper copy. It was the claimant’s case that this document was relevant to the grievance investigation by Ms Austin and it should have been disclosed to her. Our grievance findings of fact are at paragraphs 110-117 of the liability judgment. The respondent was not asserting that the reason for refusing to accept the rescindment was the claimant’s behaviours. We therefore do not accept that the failure to disclose the document to the grievance was a material factor or would have influenced the outcome in any way. It was not relevant at that time to the issues in play. We accepted Ms Jessop’s evidence under cross examination that when she received the document from Mr John she read it then put it in a drawer or somewhere in her office and never really referred to it again. This reflects the general way in which these behaviours by the claimant had been allowed to continue without any proper management. She did not remember the document as being relevant during the later Tribunal disclosure exercise (the document was disclosed on 28 February 2025 having come to light when Mr John was asked to make a statement). Since then Ms Jessop has searched extensively for the paper copy but has been unable to find it.[72]After the claimant’s resignation Ms Howell did not tell Ms Jessop about the incident between Mr Millard or Mr John. Her reasons were that “it felt unnecessary. I did not particularly want Anne to think that anything had been kept from her by the Exec Team either, even though it was done with obviously the best intentions.” Again this reflects the general approach by the exec team to keep the behaviours from Ms Jessop and try and manage the situation themselves. This was not an appropriate way to manage the situation as we have previously commented.[73]It was later reported that two other individuals had expressed concerns about the claimant’s behaviours towards them also, including a union official describing her as a bully.[74]Nothing we have heard during the remedy hearing undermines the findings at the liability hearing for the reason of the refusal to permit the claimant to rescind which was the respondent’s legitimate aim. Ms Jessop, whilst aware there were issues with the claimant’s behaviour, was not aware of the extent and impact of those behaviours on Mr Millard, Mr John and the exec team generally.[75]The claimant did not dispute any of this evidence. During the hearing she apologised and attributed the behaviour to her mental health deterioration and ADHD. She explained that when her ADHD was completely unmanaged and unmedicated she can be very forceful and become fixated, accepting she “lost the plot” on several occasions and was unable to regulate her emotions in such a way that was very public in an open plan office. The claimant explained that looking back on her behaviour and how she has been helped with the medication is akin to “night and day”. Referral to Occupational health[76]Ms Jessop told the Tribunal as follows: If I had had an OH report at the time (over the summer/autumn of 2022), stating that her inappropriate behaviour towards others did arise in consequence of her disabilities, I would still have had to have considered just how widespread and consistent I now know those behaviours to have been. I am clear that a number of the Exec Team would have at that time shared their concerns with me on the breadth and depth of theses inappropriate behaviours. Despite her many good qualities, it became clear to me that her behaviours, over a long period of time, had a far reaching and significantly detrimental impact on not only the Exec Team but others working below that (R283,R275). Even if her behaviours were as a result of her complicated mental health conditions and disability, it would not have been possible to continue to ignore them or to excuse them completely. As the CEO I could not have let this situation continue. Had I received an OH report stating this, I would have spoken to Sarah about it and considered what, if any additional reasonable adjustment may have been possible to implement, bearing in mind that we had already agreed a significant number of changes and leeway for her behaviour. I would also have sat down with the Exec Team to gather further information. I now know of course that this would highly likely have resulted in Leighton and Sean making the same revelations to me. Again, given the adjustments already made, I am not sure what more could have been done. Although I am aware of the duty to make reasonable adjustments, addressing the Sean Millard issue had required me to effectively separate Sean and Sarah almost completely and remove that element of Sarah’s role from her, it would have been completely unreasonable and unworkable to have done that with Leighton as well or any even wider group. I absolutely recognise that TRM would have a duty to make reasonable adjustments in these circumstances, but, the late diagnosis of ADHD was a label only, she had always had the condition. We had already been addressing the behaviours caused by Sarah’s mental health condition, including her ADHD, for many years, even if we did not know exactly what it was. We had made significant adjustments, not only to working practices but leniency on some particularly poor conduct. Unbeknownst to me, the Exec Team had tolerated even greater poor behaviour. I do not believe that any reasonable adjustments would have been sufficient to have addressed this to a point where Sarah could perform the HRD role effectively, leading the culture and advising me objectively on people and where the functionality of the Exec Team would be restored.[77]The claimant accepted that she had previously stated being called a bully was the worst thing she could be called. She did not accept that the reports to Ms Jessop after her resignation would inevitably have led to an investigation because the issues were because of her disability and inability to manage it. She also said she would have been able to go through an investigation and would have welcomed discussions about how she could make amends and build bridges and trust as the HRD, after an OH referral that would have recommended adjustments and stablished medication. Expert report[78]The parties had been directed to agree a joint independent expert to prepare a report. We had sight of the joint letter of instruction and annex, report dated 8 May 2025, supplementary questions and addendum to the report dated 30 May 2025.[79]The expert evidence was to assist the Tribunal in reaching a decision on the following (in summary - the precise wording of the remit for the expert is as set out in the list of issues at paragraphs 2.2 and 2.3, 4 and 6): a) The claimant’s prognosis on the factual and counterfactual scenarios in order to determine how long the claimant would have remained employed but for the discriminatory act; b) What would have been the effect on the claimant’s employment if the respondent had acted proportionally in taking informed advice from occupational health on whether to allow the claimant to rescind; c) What if any effect had the discrimination had on the claimant’s ability to mitigate her loss and d) Injury to feelings[80]Dr Navabi is a highly qualified and experienced consultant general adult psychiatrist who holds an MD (Medical Doctorate) and is a member at the Royal College of Psychiatrists (MRCPsych) and a fellow since 2017 (FRCPsych). Dr Navabi was awarded a Master’s degree in Affective Neuroscience from Maastricht University in 2013 and is approved under Section 12(2) of the Mental Health Act 1983 as having special experience in the diagnosis and treatment of mental disorders. Dr Navabi was the lead clinician for Adult ADHD services in the North sector of Birmingham between 2016 and 2020.[81]The report is lengthy and we have set out such sections or summarised the report as is proportionate. We were also assisted by the supplementary questions which sought to clarify a number of the answers.[82]At the time of the appointment with the claimant she was reported as currently cooperative, communicative and replying to questions appropriately. Her mood was reported as fine, objectively euthymic with evidence of mild anxiety. Normal thought processing and orientated in time place and person, cognitively alert.[83]Dr Navabi qualified the severity of the claimant’s emotional symptoms at the time of the examination at zero using the Hospital Anxiety and Depressive Scale (HADS), which is an instrument that qualifies severity of anxiety and depressive symptoms. Dr Navabi clarified in the addendum, that this did not in itself confirm longstanding recovery or remission as HADS measures current symptomatology.[84]Dr Navabi diagnosed the claimant with recurrent depressive disorder showing features of major depression since her mid 30’s, currently in remission. This was said to be moderate . He also diagnosed Hyperkinetic Disorder which is also classed as ADHD, confirming that diagnosis of ADHD.[85]The expert was asked what was the period the claimant would have remained in employment of the Respondent but for the discriminatory Act. The question was not limited to asking about health withdrawal factors but went on to give other potential determining withdrawal such as age, family reasons, status, work record, and perceived viability or stability of the respondent. In our judgment this was unfortunate as it prompted the expert to opine widely outside of his expertise. First report[86]The key sections are as follows: a) 11.38 The period surrounding her resignation in June 2022 was marked by significant mental health instability, precipitated by her unilateral discontinuation of Sertraline based on the mistaken belief that Elvanse monotherapy would suffice, combined with rapid titration of Elvanse to its maximum dose of 70mg (causing adverse effects) and concurrent HRT treatment instability during the substitution of her HRT medication. b) 11.54 Ms Bradley’s prognosis under the factual scenario—where her resignation rescission was refused without medical review and her employment terminated—is guarded. The acute depressive relapse triggered by these events demonstrates the vulnerability of her mental health to psychosocial stressors, particularly those involving occupational instability. Given the chronic-relapsing nature of her recurrent depressive disorder and the persistent challenges posed by ADHD (even with pharmacotherapy), the combined effects of career disruption, financial strain, and perceived workplace abandonment are likely to have long-term consequences c) 11.75 Based on a comprehensive review of Ms Bradley’s occupational history, medical records, and the prevailing clinical evidence regarding ADHD and recurrent depressive disorder in workplace settings, it is my opinion that – absent the Respondent’s discriminatory acts – Ms Bradley would on the balance of probabilities have remained employed by The Royal Mint Limited until standard retirement age (65 years). d) 11.80 In my opinion, the primary threat to employment continuity – unmanaged mental health fluctuations – was iatrogenic (treatment-related) rather than intrinsic. The 2022 crisis stemmed from autonomous medication changes (Sertraline discontinuation) and lack of workplace oversight during titration. e) 11.81. Had the Respondent implemented reasonable adjustments (e.g., occupational health monitoring during medication transitions, ADHD coaching), the destabilising cascade would likely have been averted. Metaanalytic data confirms that workplace accommodations reduce psychiatricrelated attrition by 42% (Knapp et al., 2021). Her post-2022 stabilisation on optimised pharmacotherapy (150mg Sertraline, 50mg Elvanse) further demonstrates functional capacity when adequately supported.[87]In response to the possible counter factual scenarios the report stated: a) 11.90 (a) Occupational Health Consultation in July 2022 b) “An OH assessment would have identified her June resignation as occurring during a documented medication instability period (Sertraline discontinuation and Elvanse over-titration); the July rescission request coinciding with re-stabilisation on appropriate pharmacotherapy; and ADHD-related impulsivity in the original resignation decision. c) In my opinion, the likelihood recommended actions then would have been immediate temporary medical leave (4-6 weeks) to consolidate treatment gains; graduated return-to-work with ADHD accommodations (e.g., task prioritisation support), and ongoing monthly OH reviews during medication optimisation. d) In my opinion, the likelihood employment outcome would have included approximately 80% probability of continued employment to at least age 65, and projected termination only from standard retirement (65-67) or non- discriminatory cause.”[88]In the follow up report the percentage chance of retention until retirement increases to 85-90% (paragraph 2.44) and then decreases when considering the counter factual scenario of an investigation into bullying allegations to 60-70% (paragraph 3.23). 11.95 Rescission of Resignation Permitted a) “In my opinion, allowing rescission with basic supports would have led her to clinical benefit, e.g., prevented the September 2022 depressive relapse (avoiding crisis intervention), and maintained medication adherence through workplace stability. b) In relation to her workplace trajectory, it would have increased the likelihood (>75%) of remaining to desired retirement age (65-67) with a gradual transition planning possible in later years. …. c) In relation to mental health consideration factors, in my opinion, her conditions were manageable with treatment, and there was no evidence of aspirational changes.2 (We have not considered sections where the expert provides opinion on non medical withdrawal factors such as the conclusions at 11.99 and 11.102 regarding occupational factors and the claimant’s performance.[89]The expert’s view was: The Respondent’s discriminatory conduct has profoundly compromised Ms Bradley’s ability to mitigate her losses through multiple interlinked mechanisms, each substantiated by clinical evidence and occupational data, which includes clinical barriers to loss mitigation, quantified mitigation deficits, discrimination specific causation, and forensic economic analysis.[90]This was clarified further in the addendum as Dr Navabi was asked: What are the multiple interlinked mechanisms? What are the specific clinical barriers? What forensic economic analysis are you referring to? Please also confirm how these issues interact with any recovery by the Claimant, for example (and subject to your reply above) to her 0 out of 21 score on the HADS assessment (9.10).[91]The reply was as follows: 2.68. This paragraph synthesises the multifaceted ways in which the Respondent’s discriminatory actions have created enduring barriers to Ms Bradley’s recovery and loss mitigation. The ‘interlinked mechanisms’ refer to the compounding clinical, occupational, and economic consequences that collectively undermine her capacity to restore her pre-discrimination trajectory, despite periods of symptomatic remission (such as her 0/21 HADS score in March 2025). 2.69. Multiple Interlinked Mechanisms – these operate synergistically to perpetuate loss: 2.70. Clinical Barriers: Persistent ADHD-related executive dysfunction and emotional dysregulation impair job-search efforts and workplace adaptation, while the kindling effect of the 2022 relapse increases neurobiological vulnerability to stress. 2.71. Occupational Disadvantage: Downward career mobility (to lower-status roles) reduces access to ADHD-friendly workplaces, creating a self-reinforcing 2 See below where at 3.23 – 3.26 Dr Navabi discusses masking, residual symptoms persisting and further reactions being possible even with adjustments and treatment. cycle of underemployment. 2.72. Economic Precarity: Income reduction limits access to private mental health support, while financial stress exacerbates depressive symptoms. 2.73. Discrimination Legacy: The trauma of wrongful termination erodes professional confidence, manifesting as interview anxiety or avoidance of comparable roles. 2.74. It should also be noted that even during remission (e.g., 0/21 HADS), Ms Bardley faces: 2.74.1. ADHD-Related Challenges: Difficulty with sustained focus in job applications, emotional dysregulation during rejections, and impaired organizational skills for career rebuilding. 2.74.2. Residual Depressive Vulnerability: The kindling effect means stress tolerance remains lowered, making high-pressure roles or job transitions riskier. 2.74.3. Neuroendocrine Factors: Ongoing perimenopausal hormonal fluctuations may unpredictably disrupt cognitive function and mood stability. Previous resignations[92]While Ms Bradley had previously contemplated resignation, these instances occurred during documented episodes of psychiatric instability and medication non-adherence, consistent with impulsive behaviours stemming from her ADHD and depressive disorder rather than deliberate career planning. The June 2022 resignation followed this same pattern, coinciding precisely with medication destabilisation (Sertraline discontinuation and Elvanse titration effects) rather than emerging from any systematic dissatisfaction with remuneration.[93]In my opinion, on the balance of probabilities, the Respondent’s actions in refusing the rescission request then transformed what could have been a time-limited episode into a sustained occupational and mental health crisis. The prior resignation attempts simply reinforce the established pattern of disability-related impulsivity that the Respondent failed to appropriately accommodate.[94]Dr Navabi had been asked a number of questions in the original letter of instruction about the bullying allegations and how the claimant would have responded if there had been a subsequent investigation. He had not answered any of these questions and therefore addressed them for the first time in the addendum. This was his response: Consequences of an investigation into bullying allegations Question 15 – Would the Claimant have been able to effectively engage with an internal investigation process into alleged unacceptable behaviours if such a process had occurred post-referral? In my opinion, on the balance of probabilities, Ms Bradley would not have been able to effectively engage with an internal investigation process. During acute destabilisation (March–June 2022), ADHD impulsivity, depressive symptoms (poor concentration, emotional lability), and medication instability would have severely impaired her ability to participate objectively. In my opinion, on the balance of probabilities, Ms Bradley’s Capacity would likely have returned 4–6 weeks post-OH referral, assuming medication stabilisation (Sertraline therapeutic effects achieved); and workplace adjustments (e.g., written Q&A format, breaks). In my opinion, on the balance of probabilities, allegations of bullying (per ET §67) would have exacerbated rejection sensitivity (ADHD trait), triggering defensive/impulsive reactions; worsened depressive symptoms (self-worth collapse, rumination); and impaired recall/articulation due to stress-induced cognitive deficits[95]Dr Navabi went on to suggest some recommended adjustments and limitations that could have been implemented for such an investigation such as written questions in advance, short sessions. Ms Jessop agreed that all were reasonable and would have and have been implemented in other investigations.[96]The report continues: Question 16 – If following an investigation and disciplinary process into past events, the Respondent had reached a conclusion that the Claimant had engaged in bullying or unprofessional behaviour towards colleagues (imposing a sanction short of a dismissal) and noting the Tribunal’s finding at ET Reasons §193, what likely effect would that have had on her disabilities of ADHD/anxiety/depression? What effect if any would it have on her mental capacity to be able to continue to work for the Respondent, noting ET Reasons §191? To what extent does your answer depend upon the details and seriousness of the allegations and conclusions reached (including, for example, as to the length of time it had continued or to the seriousness of specific acts). In my opinion, a disciplinary finding that Ms Bradley had engaged in bullying or unprofessional behaviour would likely have had severe consequences for her mental health and capacity to continue working. Given the Tribunal’s observations about her distress when facing such allegations (§193) and her already fragile psychological state (§191), such an outcome would probably have significantly exacerbated her depression and anxiety symptoms. The stress of the disciplinary process itself, combined with the shame and stigma of an adverse finding, could have triggered an acute relapse of her depressive disorder. For her ADHD, the emotional dysregulation characteristic of this condition might have intensified, potentially manifesting as either withdrawal or heightened reactivity in workplace interactions. 3.13. The impact would have been mediated by several factors relating to the allegations themselves. More serious or prolonged accusations would naturally carry greater psychological weight, potentially overwhelming her coping mechanisms. The perceived fairness of the process would also be critical – any sense of injustice or disproportionate sanction would likely amplify the negative effects. Even with a sanction short of dismissal, the combination of damaged workplace relationships, loss of professional standing, and the ongoing stress of modified working arrangements might have made her continued employment untenable. While reasonable adjustments could have helped mitigate some impacts, the fundamental breach of trust and psychological safety might have rendered her effectively unable to continue in her role, regardless of formal capacity. 3.14. The Tribunal’s findings at §191 suggest her mental health was already compromised following the events of 2022. A disciplinary finding would have represented another major psychological stressor, potentially pushing her beyond her capacity to cope. This could have resulted in either voluntary resignation due to intolerable stress or medical incapacity to continue working. The specific manifestations would depend on how her particular conditions interacted with the disciplinary outcome, but the overall prognosis would be concerning given her established vulnerabilities.[97]The claimant’s alleged behaviours were put the Dr Navabi who was asked to comment on the extent to which the Claimant’s mental health would have caused them and the link with her disabilities. 3.18. In my opinion, on the balance of probabilities, the alleged bullying behaviours described, if they occurred, would likely have been substantially influenced by the Claimant’s mental health conditions, particularly during periods of medication instability or acute psychiatric symptoms. While not necessarily the sole cause, her ADHD and recurrent depressive disorder would have been significant contributing factors to any problematic interpersonal behaviours. 3.19. The timing of these alleged incidents appears to correlate with documented mental health crises in September/October 2019, February 2021, and May 2022. During such periods, her conditions could manifest in ways that might be perceived as bullying, including emotional dysregulation (shouting/outbursts), social withdrawal (sending to Coventry), or impulsive attempts to control situations (leveraging relationships). These behaviours align with known ADHD symptoms when unmanaged – emotional impulsivity, rejection sensitivity, and executive dysfunction – particularly during medication changes or depressive episodes. 3.20. The Claimant’s medication history is particularly relevant. Periods of Sertraline discontinuation or Elvanse titration would have exacerbated underlying symptoms, potentially leading to the described behaviours. For instance, emotional outbursts might represent ADHD-related impulsivity magnified b untreated depression, while social withdrawal could reflect depressive anhedonia or anxiety. The alleged leveraging of relationships might stem from ADHD-driven impulsivity in problem-solving during stressful periods. 3.21. In my opinion, on the balance of probabilities, these factors suggest that while the behaviours might have occurred, they were likely manifestations of disability-related symptoms rather than intentional misconduct, particularly when viewed in the context of her documented mental health fluctuations. The pattern of these allegations coinciding with psychiatric crises supports this interpretation. A proper occupational health assessment at the time would have been crucial to distinguish disabilityrelated behaviours from wilful misconduct and determine appropriate accommodations. 3.23. In my opinion, on the balance of probabilities, assuming proper reasonable adjustments and support were implemented, the likelihood of Ms Bardley remaining with the Respondent until retirement would be moderately good (approximately 60-70% probability), although several factors would influence this outcome. Ms Bradley’s tendency to mask her true feelings could persist, particularly given the workplace stigma surrounding mental health. This masking would likely be most pronounced during periods of stress or when facing performance expectations, potentially delaying necessary interventions. Factors affecting this would include psychological safety in the workplace, management’s demonstrated understanding of her conditions, and whether accommodations truly addressed her needs rather than just surface-level behaviours. 3.25. The January 2022 ADHD diagnosis and subsequent medication stabilisation would have significantly improved prospects for managing emotional outbursts and professional conduct. Proper treatment typically reduces ADHD-related emotional dysregulation by approximately 40-60%, based on clinical studies. However, residual symptoms often persist, particularly during stressful periods or hormonal fluctuations (given her perimenopausal status). The medication regime would need ongoing monitoring and adjustment to maintain effectiveness. 3.26. In my opinion, further reactions would remain possible, although less frequent and severe with continued treatment. Key influencing factors would include consistency of medication management, workplace stress levels, quality of supervisory relationships, and stability of personal circumstances. The workplace culture would be particularly crucial – environments perceived as critical or unsupportive would heighten relapse risks. The Law[98]S124 EQA 2010 sets out the remedies available in discrimination complaints. S124(6) provides that the amount of compensation which may be awarded corresponds to the amount which could be awarded by the County Court under S119.[99]We were referred to a number of authorities by both parties. Whilst we do not recite every authority we have considered such authorities as we consider proportionate and relevant to the issues in the claim.[100]The claimant is under a duty to mitigate her loss and the burden of proof is on the respondent to show the claimant has failed to mitigate his loss. Ministry of Defence v Cannock [1994] ICR 918 and Wilding v British Telecommunications Plc [2002] ICR 1079. The aim is that ‘as best as money can do it, the applicant must be put into the position she [or he] would have been in but for the unlawful conduct’ (Cannock), which is also authority for the principle that the Tribunal should not simply make calculations under different heads and then add them up. A sense of due proportion is required and to look at the individual components of any award and then looking at the total to make sure that the total award seems a sensible and just reflection of the chances which have been assessed ( per Morison J at para 132).[101]Cooper Contracting Ltd v Lindsey UKEAT/184/15 sets out the steps a Tribunal should take when approaching the issue of mitigation. The burden of proof is on the respondent at all times. The Tribunal should consider(a) what steps was it unreasonable for the claimant not to have taken?(b) when would those steps have produced an alternative income?(c) What amount of alternative income would have been earned (Edward v Tavistock & Portman NHS Foundation Trust [2023] IRLR 463).[102]The respondent referred us to Livingstone v Rawyards Coal Co (1880) 5 App Cas 2510/06/2025 46 – 64 (on the issue of the date the Vento bands should be assessed), Fyfe v Scientific Furnishing [1989] IRLR 33110/06/2025 65 – 68, Hilco Capital Ltd v Harrington [2022] EAT 15610/06/2025 69 – 97, Eddie Stobart Ltd v Graham [2025] EAT 14.[103]In Essa v Laing [2004] IRLR 313, the Court of Appeal held that it was not necessary to show that the particular type of loss was reasonably foreseeable. If it is reasonably foreseeable that a claimant will suffer injury to feelings then the respondent will be liable for the full loss no matter how extreme (the “eggshell skull” principle).[104]In Vento v Chief Constable of West Yorkshire Police (No.2) 2003 ICR 318, CA, the Court of Appeal gave specific guidance on how employment tribunals should approach the issue. There are three broad bands when assessing the compensation for injury to feelings and within which band the compensation should fall.[105]In respect of claims presented on or after 6 April 2022, the Vento bands shall be as follows: a lower band of £990 to £9,900 (less serious cases); a middle band of £9,900 to £29,600 (cases that do not merit an award in the upper band); and an upper band of £29,600 to £49,300 (the most serious cases), with the most exceptional cases capable of exceeding £49,300.[106]The claimant relies upon Da’Bell v NSPCC [2010] IRLR 19 as authority for the submission that the Tribunal should depart from the PRESIDENTIAL GUIDANCE Employment Tribunal awards for injury to feelings and psychiatric injury following De Souza v Vinci Construction (UK) Ltd [2017] EWCA Civ 879. This is on the basis that the claimant submits that the Presidential Guidance offers no explanation for its “contrary formula” (of applying rates at the date of the presentation of the claim rather than the date of the assessment) and is not binding. (In Da’Bell the Employment Appeal Tribunal held that Da’Bell was a case where the EAT could decide to uprate standard guidelines).’[107]Prison Service and Others v Johnson [1997] ICR 725 provided the following guidance when assessing discrimination awards; such awards were compensatory and should be just to both parties, compensating fully without punishing the tortfeasors while not so low as would diminish respect for the policy of the anti-discriminatory legislation; that awards should bear some broad general similarity to the range of awards in personal injury cases and in exercising their discretion tribunals should remind themselves of the value in everyday life of the sum they had in mind by reference to purchasing power or earnings and should bear in mind the need for public respect for the level of awards made.[108]The Court of Appeal gave guidance to Tribunals when assessing future loss of earnings after a discriminatory dismissal in Wardle v Credit Agricole Corporate and Investment Bank [2011] EWCA Civ 545. Where it is at least possible to conclude that the employee will, in time, find an equivalently remunerated job (which will be so in the vast majority of cases), loss should be assessed only up to the point where the employee would be likely to obtain an equivalent job, rather than on a career-long basis, and awarding damages until the point when the tribunal is sure that the claimant would find an equivalent job is the wrong approach. This case was also relevant when considering whether an ACAS uplift should be awarded having regard to the overall size of the award.[109]Abbey National PLC and another (appellants) v Chagger (respondent) [2009] IRLR 86 provides that where a claimant has been discriminated against by being dismissed, the tribunal should consider whether the claimant would have been dismissed in any event on legitimate grounds. It is the discrimination which is the essence of the wrong. It follows that the correct question is what would have happened if the claimant had not been discriminatorily dismissed, which plainly requires consideration of whether the same dismissal might have occurred but on legitimate grounds. Despite the conceptual difference between unfair and discriminatory dismissal, they are alike to the extent that dismissal itself is not inherently unlawful and that it is only the additional vitiating factor, unfairness or discrimination, which renders it so. S207 TULRCA – Acas uplift 110. s207A Effect of failure to comply with Code: adjustment of awards provides:(1) This section applies to proceedings before an employment tribunal relating to a claim by an employee under any of the jurisdictions listed in Schedule A2.(2) If, in the case of proceedings to which this section applies, it appears to the employment tribunal that— (a) the claim to which the proceedings relate concerns a matter to which a relevant Code of Practice applies, (b) the employer has failed to comply with that Code in relation to that matter, and (c) that failure was unreasonable, the employment tribunal may, if it considers it just and equitable in all the circumstances to do so, increase any award it makes to the employee by no more than 25%.[111]In Slade v Biggs [2022] IRLR 216 the EAT reviewed the authorities on the adjustments of awards under s207A TULCRA. The Tribunal should consider the following questions: ''i) Is the case such as to make it just and equitable to award any ACAS uplift? ii) If so, what does the ET consider a just and equitable percentage, not exceeding although possibly equalling, 25%? Any uplift must reflect “all the circumstances”, including the seriousness and/or motivation for the breach, which the ET will be able to assess against the usual range of cases using its expertise and experience as a specialist tribunal. It is not necessary to apply, in addition to the question of seriousness, a test of exceptionality. iii) Does the uplift overlap, or potentially overlap, with other general awards, such as injury to feelings; and, if so, what in the ET's judgment is the appropriate adjustment, if any, to the percentage of those awards in order to avoid double-counting? This question must and no doubt will be answered using the ET's common sense and good judgment having regard to the final outcome. It cannot, in the nature of things, be a mathematical exercise. The EAT must be reluctant to second guess the ET's decision either to adjust or not adjust the percentage in this respect, or the amount of any adjustment, because it is quintessentially an exercise of judgment on facts which can never be as fully apparent on appeal as they were to the fact-finding tribunal. The EAT will certainly not substitute its own view for the judgment of the ET in the absence of an obvious error. iv) Applying a final sense-check, is the sum of money represented by the application of the percentage uplift arrived at by the ET disproportionate in absolute terms and, if so, what further adjustment needs to be made? Whilst wholly disproportionate sums must be scaled down, the statutory question is the percentage uplift which is “just and equitable in all the circumstances”, and those who pay large sums should not inevitably be given the benefit of a non-statutory ceiling which has no application to smaller claims. Nor should there be reference to past cases in order to identify some numerical threshold beyond which the percentage has to be further modified. That would cramp the broad discretion given to the ET, undesirably complicate assessment of what is “just and equitable” by reference to caselaw and introduce a new element of capping into the statute which Parliament has not suggested.''[112]Counsel for the claimant relied upon SPI Spirits (UK) Ltd v Zabeline [2024] IRLR 285 as authority for the proposition that an email can trigger an obligation to follow the ACAS code of practices in relation to grievances.[113]The Acas Code of Practice on grievances starts at paragraph 32. It provides that if it is not possible to resolve a grievance informally employees should raise the matter formally and without unreasonable delay with a manager who is not the subject of the grievance. This should be done in writing and should set out the nature of the grievance. It goes on to set out the steps that should be taken namely, in summary holding a meeting with the employee to discuss the grievance, allow them to be accompanied, decide on appropriate action and provide the right to appeal. Paragraph 4, the relied upon breach by the claimant, provides that whenever a disciplinary or grievance process is being followed it is important to deal with issues fairly including dealing with issues promptly. There should not be unreasonable delay to meetings, decisions or confirmation of those decisions and the employer must carry out any necessary investigations, to establish the facts of the case.
Conclusions
[114]The appropriate starting point when reaching conclusions in this claim is to set out what the discriminatory act was. In this case it was not a discriminatory dismissal per se (recognising that the outcome of the decision was termination of employment) but the refusal to permit rescindment of the resignation. It is important to note that this succeeded because of the proportionality issue. The legitimate aim of maintaining reasonable operational integrity and expediency and/or to achieve and maintain stability within the small number of senior executives within its business was upheld. In terms of proportionality we found that the respondent should have taken some proper informed medical advice concerning the disabilities, the impact on the claimant’s behaviour and prognosis to then be in a position to truly assess whether the refusal to allow the rescindment would achieve their stated aims. We expressly stated that the respondent may well have still been in a position to decide that the resignation had to stand and that such matters had to be reserved for remedy.[115]Paragraph 193 also set out a clear indication of what the Tribunal was going to be concerned about at the remedy hearing: The Tribunal were told of at least two occasions where the claimant, who was a senior member of the management team developed and maintained fixations with employees some of whom were subordinate to the claimant. This is demonstrative of a work environment where the claimant’s behaviour was not being appropriately managed especially after the ADHD diagnosis. We make no criticism of the claimant in this regard as it is highly likely that such behaviours were as a result of her disabilities. Nonetheless this does not provide a completely free path for any employer to have to accept such behaviours particularly when they impact other employees. This is the very point of proportionality and the need to balance the discriminatory effect of the treatment against the legitimate aims of the respondent.[116]The Claimant’s approach to this remedy hearing is to seek career based loss until a retirement age of 67. This is on the premise that there was a 100% chance she would have continued as HRD until the age of 67 years. The claimant has sought total compensation in the region of two million pounds.[117]The respondent’s position is that this is detached from reality and the claimant’s days were “numbered”.[118]We must decide would have happened but for the unlawful act of the respondent. To do so requires a degree of speculation in which we must assess likelihoods both on the upsides and on the downsides. Such matters require serious and careful consideration of the known facts to inform and assist with the speculative assessment.[119]In our judgment, given the impact of the breakdown in relationships between the claimant and the exec team, the instability caused by multiple resignations and overall impact of the claimant’s position as HRD, had the respondent taken appropriate medical advice there is an 80% chance the claimant would have left her employment no later than 28 April 2023 and that had an occupational health referral been made the claimant would have been on sick leave until that date. These are our reasons:[120]There can be no dispute that the claimant’s behaviour towards Mr Millard and Mr John was wholly inappropriate behaviour from a HRD and senior executive. It led to a dysfunctional and unprofessional work environment for such a senior leadership team. The exec team closed ranks to hide a lot of the behaviour from Ms Jessop due to a well intended but wholly misguided effort to protect the claimant. We also consider that the exec team were worried about their own positions given the closeness of the relationship between the claimant and Ms Jessop. This was not an unreasonable concern because we know on many previous occasions nothing had happened to manage the claimant during previous mental health / ADHD episodes (fixations, storming out of meetings, open shouting and disagreements etc). Further, we know there was one senior executive that after failed mediation with the claimant was exited from their job on a termination package. This is why we have decided that there is a 20% chance the respondent would not have done anything formally to commence an investigation or exit the claimant from the business about the claimant’s behaviour following an occupational health referral. We do consider it likely even in this scenario the respondent would have implemented adjustments. Ms Jessop was aware of some of the behaviours as she had removed line management of Mr Millard and we have had new evidence about the outburst at the April 2022 meeting in Bath where still nothing was done. We also considered Ms Howell’s evidence (see paragraph 72 above). The exec team had been determined to try and manage the situation themselves but we find this state of affairs could not have continued.[121]We accept that Ms Jessop did not know the full impact of what had been going on until after she decided the claimant would not be permitted to rescind her resignation first communicated to the claimant on 6 July 2022.[122]Based on the evidence before us, had the respondent sought appropriate advice they would have been advised that the some, if not all of the claimant’s behaviours may have been attributable to her mental health crisis and ADHD particularly in the period of 2022. Dr Navabi’s expert opinion was that “on the balance of probabilities” the (alleged and now found to have taken place) behaviours would “likely have been substantially influenced by the claimant’s mental health conditions, particularly during periods of medication instability or acute psychiatric symptoms. Dr Navabi does not say that the claimant’s disabilities were the sole cause of the behaviour but that they would have been “significant contributing factors to any problematic interpersonal behaviours.” He goes on to explain that her conditions could have manifested as bullying. He relies upon the behaviour occurring during previous documented mental health crises and advises that a proper occupational health assessment at the time would have been crucial to distinguish disability-related behaviours from wilful misconduct and determine appropriate accommodations. We accept his expert opinion in full in this regard.[123]Had the respondent sought advice and been advised the behaviours were disability related, we consider there is an 80% chance an investigation would have ensued. Such advice would have fed into the process in so far as deciding on the investigation outcome and whether a disciplinary would follow or whether it would be dealt with by way of capability. We have assessed that a process to exit the claimant would have ensued at 80% likely having regard to the following factors: a) There had already been adjustments put in place to alleviate the difficulties between the claimant and Mr Millard (the switch in line management) but these had not resolved the fixation issues; b) The significant impact of the behaviours on Mr Millard and Mr John and their teams; both considered leaving their employment because of the situation. Also what Ms Jessop and Ms Howell were later told about the wider impact of the claimant’s behaviours and leverage of her relationship with Ms Jessop; c) This time differed from the other occasions in that we accept that both Mr John and Mr Millard would have escalated their concerns to a level that it could not have been ignored which would have resulted in the evidence now before this Tribunal being ventilated; d) The very significant instability already caused by the claimant’s resignations (previous) and the announced June 2022 resignation including the very widely published views of the claimant she could earn more money in London and wanted to secure interim work (this was already the reason provided at the time for not permitting rescindment); e) The claimant’s position that there would have been no investigation or action as the behaviours were disability related is more unlikely, assessed at 20% for the reasons set out above. It ignores the question of proportionality and as we observed in our liability judgment, disability related behaviours do not automatically mean that the behaviours will be ignored. An employer must assess and evaluate the impact of that behaviour balancing the needs of the disabled employee and the impact on other employees and the employer as a whole.[124]Dr Navabi advises that the claimant would have been able to take part in an investigation 4-6 weeks post OH referral. Ms Jessop decided on 6 July 2022 that the claimant could not rescind her resignation but the Tribunal found she should not have attributed the resignation to the disabilities until later in July 2022 around 28th July on receipt of the claimant’s email. If Ms Jessop had not made this decision and instead referred the claimant to occupational health on this date, Mr John and Mr Millard would have formally raised their issues with Ms Jessop / the board. This would have prompted an investigation. In our judgment, based on Dr Navabi’s opinion on the then likely outcome (see paragraph 94), we consider the claimant would have been able to engage with an investigation between 4 – 6 weeks after an OH referral with her medication stabilised and adjustments, allowing for written Q&A’s. Assuming under the counter factual scenario the OH referral occurred in say mid to end of August, the claimant could have started to engage in an investigation at the end of September 2022 – mid October 2022.[125]We conclude that the respondent would not have progressed to discipline the claimant as they would have likely been informed that her recent behaviour was caused by the medication instability and her disabilities which was not wrongdoing but capability related. We have also taken into account the previous reluctance to address the claimant’s behaviours in reaching this conclusion. Notwithstanding the link with the claimant’s disabilities and the behaviours we consider that the claimant’s position had become untenable and the respondent would not have permitted the claimant to return into her role as HRD. We have also taken into account the impact of the allegations on the claimant what Dr Navabi has said about the impact of the allegations on the claimant’s health and the damaged professional relationships, loss of professional standing and modified working arrangements.[126]Dr Navabi also advises that even in the counter factual situation further reactions would remain possible although less frequent and severe with treatment. In other words, it is possible that the behaviours could reoccur. With regards to these being ameliorated with treatment and adjustments, we also think it is relevant to take into account that the claimant had previously being untruthful with her privately funded psychiatrist and took decisions without advice about changing / stopping medications. This balanced with her history of depression means it was likely there would be further episodes of both the claimant’s instabilities and behaviour and that treatment was not always going to ameliorate it. Further, the claimant’s tendencies to mask would exacerbate this risk. Whilst the claimant is currently managing her disabilities very well, these factors are supportive of a conclusion that the chance of the claimant remaining in her role as HRD with the respondent for a prolonged period of time is unlikely given the history.[127]Taking all of the above into account and engaging the balancing exercise, we consider the likely outcome would have been the claimant would have been off sick due to the impact of the allegations on her mental health until leaving the employment of the respondent either by way of a capability related process or a termination package. We think a termination package likely as there is evidence that such packages were in operation at the respondent (see paragraphs 26 and 58 of the liability judgment). We have also taken into account our industrial knowledge of how these types of disputes and issues are resolved in the workplace. We assess this as 80% likely to have happened by 28 April 2023 allowing for the investigation process, the impact on the claimant’s health of such an investigations and facing bullying allegations would have resulted in further periods of instability meaning this process would take some time.[128]We must have regard to the following steps in Cooper Consulting (noting again the burden of proof is on the respondent):• What has to be proved is that the Claimant acted unreasonably; she does not have to show that what she did was reasonable;• There is a difference between acting reasonably and not acting unreasonably (see Wilding ).• What is reasonable or unreasonable is a matter of fact.• It is to be determined, taking into account the views and wishes of the Claimant as one of the circumstances, though it is the Tribunal's assessment of reasonableness and not the Claimant's that counts.• The Tribunal is not to apply too demanding a standard to the victim; after all, he is the victim of a wrong. He is not to be put on trial as if the losses were his fault when the central cause is the act of the wrongdoer (see Waterlow , Fyfe and Potter LJ's observations in Wilding ).• The test may be summarised by saying that it is for the wrongdoer to show that the Claimant acted unreasonably in failing to mitigate.• In a case in which it may be perfectly reasonable for a Claimant to have taken on a better paid job that fact does not necessarily satisfy the test. It will be important evidence that may assist the Tribunal to conclude that the employee has acted unreasonably, but it is not in itself sufficient.[129]The claimant submits and we agree that this questions requires us to take into account the effect of the expert medical evidence on the question of reasonableness. We also consider we must take into account the findings of fact we have made and the reality of the actual situation in regard to the steps the claimant took to mitigate, how her health is now and has been since the termination date.[130]Dr Navabi’s opinion on mitigation (see paragraphs 89-91) was that the claimant’s ability to mitigate her loss was profoundly compromised. The difficulty here for the claimant is that the expressed reasons (the multiple interlinked mechanisms) are at odd with the facts. Whilst we fully accept that the claimant has an increased vulnerability to stress as a result of the discrimination and her future prognosis is “guarded”, the other mechanisms cited do not apply to the claimant. The claimant has never experienced the occupational disadvantage he cites of downward career mobility in fact her distinguished and well paid career history shows the opposite. The reality is that the claimant demonstrated a good success interview ratio in the Autumn of 2022 notwithstanding her recent serious depressive episode. She was able to apply for multiple jobs and secured a role (albeit less paid) within three months of her termination date despite having suffered such a significant depressive episode in September 2022. The other mechanisms cannot be shown to have applied to the claimant in the past and we also consider how the claimant’s mental health and ADHD symptoms are being managed at the time of the assessment (HADS zero) and remedy hearing.[131]In our judgment, the respondent has produced cogent and compelling evidence on the number of jobs available within the claimant’s salary range, location and ability to hybrid work - there were multiple roles available that the claimant could have applied for within the parameters of her needs taking into account her residual depressive vulnerability. This is wholly borne out by the reality that the claimant is in a role now where she is able to travel away up to 8 days per month to London or Sheffield. The claimant is thriving in her existing role and apart from one week sickness absence after the liability hearing has not had any other absences.[132]We have concluded that the claimant acted reasonably in mitigating her loss up to January 2024. It was not unreasonable to stop applying for jobs between November 2022 and February 2023 as she had secured a new role at T&T. It was not unreasonable to apply for an average of 4 jobs per month between February and November 2023 although we think she could have applied for more.[133]From January 2024 we find that the claimant has acted unreasonably in deciding and making an active choice not to look for higher paid work. This is of course a choice the claimant is able to make but she should not expect therefore to receive compensation for her ongoing loss of earnings from the respondent. We do not agree that Dr Navabi’s opinion requires us to accept that the claimant’s disabilities have affected her ability to mitigate for the reasons we set out above – the opinion is at odds with the facts. We also consider that the claimant acted unreasonably in failing to apply for any civil service roles that could have mitigated her pension loss.[134]The claimant’s financial loss therefore ends in January 2024 as she has decided not to mitigate her loss. Acas Uplift[135]The claimant seeks a 25% uplift on the basis of an asserted breach of paragraph 4 of the ACAS Code. The claimant’s skeleton argument explains this is based on the following reasons: a) The claimant’s emails of 28 July 2022 (see paragraph 101 of the liability judgment) and 11 August 2022 should have triggered the obligation to follow the code and the delay was unreasonable. The Tribunal did not make any detailed findings about the email of 11 August 2022 and it is only mentioned very briefly in the liability judgment. It is a lengthy email and it is not proportionate to set it all out here but it is plain that the claimant was complaining about Ms Jessop’s decision not to permit her to rescind attributing the resignation to her disabilities. She asked Ms Jessop to reconsider and agreed her mental health episode could be shared with colleagues; b) The failure to refer to occupational health and not disclose the Temp Brass document to the grievance investigation breaches part 4 (Employers should carry out any necessary investigations, to establish the facts of the case).[136]The Tribunal agrees that both the email dated 28 July and 11 August 2022 included written complaints that could be deemed to have triggered the grievance process. However given the content of the claimant’s email of 11 August 2022 we consider at that stage the respondent may not have understood the issue had moved beyond the informal stage. This in any event does not matter because as soon as the claimant lodged a formal grievance on 13 September 2022 (after legal letters going back and forth) the respondent acted promptly in addressing the grievance. In our judgment there was not an unreasonable delay even if we took the time between 28 July 2022 and the grievance outcome on 26 October 2022 given the breadth of the investigation necessary and the seriousness of the impact of the outcome of that grievance on the both the claimant and the respondent. We have already made findings that the grievance outcome was a “comprehensive review of all of the evidence and documents”. The fact that the Tribunal reached a different outcome to the grievance does not follow that the code of practice has been breached warranting an uplift. All of the steps in the code were adhered to. There are no grounds to make any uplift.[137]In regard to the argument concerning the Temp Barss document, we have observed above that it was not unreasonable to have failed to provide this document as part of the grievance investigation. Even if it had been there is no prospect that a failing of this nature could warrant an uplift to the awards. It made no difference to the outcome.[138]For these reasons the Tribunal does not make any uplift to the awards as there have not been any breaches of the ACAS code of practice. Injury to feelings[139]At liability stage the claimant’s schedule of loss assessed her injury to feelings at £20,000. It should be borne in mind this was the amount sought based on the totality of the other claims that had been brought which were dismissed by the Tribunal. This has now increased to £45,000. Counsel for the claimant explains the significant increase as attributable to an incorrect understanding of the limited long term effect of the discrimination on the claimant and she had made good recovery but the extent of her trauma was still hidden by her masking, even from her lawyers. The claimant’s behaviour at the liability hearing was described as her mask dropping completely for the first time and her lawyers became aware of the extent of injury to feelings caused with the information disclosed by the Claimant during her meltdown in January 2024 as new to them as to the Tribunal. The claimant also relied upon the expert report on the depth and extent of the injury caused, an issue not directly addressed by the experts at liability stage.[140]It is submitted by the claimant that there is ample evidence of a deep and enduring injury to feelings and applying the “eggshell” principle the award falls at the top of the top Vento band. We are also invited to depart from the Presidential Guidance and apply the bands relevant as of 2025 rather than 2022 the date of the injury.[141]The respondent points to the change in position between liability and remedy and submits this is not a top band Vento case, submitting that there is no campaign and the claimant succeeded on one element of her complaint about the decision not to permit her to rescind without taking medical advice.[142]We do not consider that the injury to feelings award should fall within the top Vento band. The claimant succeeded in one part of her claim and in relation to proportionality. There was no campaign or repeated incidents; the success in relation to proportionality shows that the discrimination was not deliberated, targeted or planned. In Vento, the middle band was described as appropriate for serious cases which do not merit award in the highest band and this is the appropriate band for the award to be made within.[143]We do not agree that the Tribunal should decline to follow the Presidential Guidance and assess the bands as of the date of the remedy hearing rather than 2022. We agree the Tribunal has the ability to do so. In this case, we do not consider there to be any such circumstances to depart form the guidance. Unlike in the authorities where such a departure has occurred, there has not been an onerously lengthy period that would make it appropriate to depart from the Presidential Guidance.[144]In deciding the amount of injury to feelings within the middle band (£9,900 to £29,600) we have concluded that the injury is towards the middle of the middle band and is assessed at £20,000 for the following reasons.[145]We accepted Dr Navabi’s expert opinion that the refusal to allow the rescindment of the resignation triggered / directly exacerbated an acute depressive relapse in September 2022 requiring crisis team intervention and an increase to Sertraline to 150mg daily. We also accept that the claimant had experienced significant upset and distress as the loss of her role with the respondent.[146]We balance this with the fact that the claimant was well enough to start looking for work in October 2022 and in December 2022 securing (whilst a lesser paid role) a role that was and is still challenging and rewarding. Apart from a period of one week in January 2024, the claimant has not had any repeat relapses. This does not support an enduring and deep injury to feelings warranting an award in the top band.[147]The claimant has a long standing history of depression and has experienced recurring depressive disorders. This must factor in to assessing the degree of causation for the impact described in the expert report.[148]Whilst not strictly relevant, as this has been raised by the claimant we consider we should address this point. We do not agree that all the claimant’s distress displayed at the liability hearing to be attributable to her reliving the one act of discrimination the respondent has been found liable for. Whilst we did not address this in our liability judgment as we did not consider it to be necessary at that time the Tribunal unanimously agrees that much of the claimant’s distress at the previous hearing was triggered when she was recalling how unwell she had been in the months leading up to her resignation specifically her suicidal ideations at that time, the evidence concerning Mr Millard considering he was being bullied by the claimant and being challenged on her evidence under cross examination. Aggravated damages[149]The aggravating features relied upon the claimant were the failure to seek medical evidence before refusing the rescindment and the failure to disclose the Temp Brass document. Counsel also subsequently asserted it was unreasonable and aggravating conduct to make the accusation that the claimant’s behaviour was misconduct, even gross misconduct. On the evidence, and in terms of §192 of the ET liability reasons, the focus should have been on capability / performance, exploring prognosis in an openminded way. That repeated and frequent use of the label ‘bullying’, and the accusation thereby being made, did not result in a meltdown similar to January 2024, does not lessen the effect of such labels on injury to feelings.[150]We have no hesitation in rejecting the submission that this claim warrants aggravated damages. Firstly, the discriminatory conduct does not involve aggravating features such as behaviour that could be deemed to be high handed, malicious insulting or oppressive. The respondent was entitled to raise the impact of the claimant’s behaviour on her colleagues as part of this remedy hearing even though it was attributable to her disabilities as it was directly relevant to the question of the prospect of the claimant remaining in employment and for how long. The claimant was seeking overall compensation of almost £2,000,000. The Tribunal had clearly indicated in our liability judgment that the impact of the behaviours was one that needed to be explored in remedy.[151]We also rejected above the invitation to attribute the circumstances around the Temp Brass document as aggravating conduct.[152]The discriminatory act is already compensated for with the injury to feelings award. Approved by: