Dr C Yates v Richard Newton Consulting Ltd: 1601627/2022

EMPLOYMENT TRIBUNALS

Case No 1601627/2022

Between

Dr C YatesClaimant

Richard Newton Consulting LtdRespondent

Before

Employment Judge W Brady

Mr W Cowley for claimant

Ms A Pitt for respondent

Date 13 January 2025

REASONS

[1]The Claimant was employed by the Respondent as a research and consultation manager from 12 July 2021 until 25 August 2022. Early Conciliation started on 6th October 2022 and ended on 10 November 2022. The claim was presented on 9 December 2022. The Claimant is making the following complaints

[1]Direct disability discrimination (including a discriminatory dismissal) Discrimination arising from disability

[3]Failure to make reasonable adjustments

[4]Disability related harassment

[5]Victimisation

[6]Wrongful dismissal (this is admitted)

[7]Unauthorised deduction from wages. 3. The case was listed today to hear the Respondent’s application for the Tribunal to strike out all of the above claims on the grounds that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent has been scandalous unreasonable or vexatious and that the Tribunal considers it is no longer possible to have a fair hearing in respect of the claim or the response. 4. I have read the extremely thorough and helpful skeleton argument prepared by Ms Pitt for the Respondent and I heard her oral representations today. I also heard from Mr Cowley from the Citizen’s Advice Bureau who represents the Claimant. 5. When considering this case I have taken into account the overriding objective to deal with cases fairly and justly and Rule 2 of the Employment Tribunal Rules of Procedure. 6. Rule 37 of the Employment Tribunal Rules of Procedure states that at any stage of the proceedings either by its own initiative or on an application of a party, A Tribunal may strike out all or part of a claim in response on any of the following grounds:a. That it is scandalous vexatious or has no reasonable prospect of success

b. The manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent has been scandalous unreasonable or vexatious

c. For non-compliance with any Rules or with any order of the Tribunal

d. It has not been actively pursued

e. That the Tribunal considers it is no longer possible to have a fair hearing in respect of the claim or the response. 7. The Respondent in this case is making the application under Rule 37(1) B, 37 (1) (c) and 37 1(d)

[8]I was referred to the case of Bolch v Chipman 2004 ILIR 140 EAT which gave guidance on the steps a Tribunal should take in determining a strike out application under section 37(1)(b).

[9]Firstly, an employment judge must find that a party or his or her representative has behaved scandalously, unreasonably or vexatiously when conducting the proceedings.

[10]Secondly, if so the Judge must then consider whether a fair trial is still possible. If a fair trial is still possible then the case should be permitted to proceed.

[11]Thirdly if a fair trial is not possible the tribunal will need to consider the appropriate remedy in the circumstances. It may be appropriate to impose a lesser penalty for example by making a costs or preparation order against the party concerned rather than striking out his or her claim or response.

[12]Ms Pitt submitted on behalf of the Respondent that the Claimant has accepted the conduct of her representatives and has indicated her wish to continue to instruct them to represent her and therefore any conduct of the Claimant or her representatives can be taken into account.

[13]The Respondent alleges that the general conduct of the Claimant’s representative in not replying to emails, failure to comply with court orders, lost evidence and lack of cooperation amounts to “scandalous, unreasonable or vexatious behaviour”. The Respondent argues that the conduct is deliberate and gave a number of examples of behaviour that could be inferred as deliberate for example when asked for the medical evidence the claimant raised the issue of confidentiality, terminating the ACAS telephone call unexpectedly, not putting the Respondent on notice of Mr Cowley’s unavailability for the final hearing at the same time as the Tribunal were notified.

[14]Mr Cowley on behalf of the Claimant explained that there had been a number of staffing issues within his organisation which had resulted a reduction from 6 caseworkers to 2, leaving Mr Cowley and one other caseworker to carry the entire workload. He explained that any failure to comply with orders was not deliberate but due to sheer pressures of work, which unfortunately, he says resulted in his own sickness leave prior to the final hearing which was listed for January 2024. Mr Cowley reassured the Tribunal that he would in future personally ensure that all timeframes were met.

[15]Mr Cowley confirmed that he had no problems obtaining instructions from Dr Yates.

[16]Ms Pitt submitted that due to the delay in the proceedings and the fact that this case has twice been listed for final hearings which have not been effective that a fair trial would no longer be possible. She argued on behalf of the Respondent that part of the Harassment claims and all of the Victimisation claim relies solely on parties’ recollections. As the Claimant’s claims are based on her lack of memory, then the effect of the delay in these proceedings will affect her more than such a delay may affect other claimants. (The Claimant had stated that the issue of memory will not be a problem as much of the case is based on documents).

[17]In response, Mr Cowley accepted that the case had been delayed, but pointed out that in other areas in the country, Tribunal cases are routinely heard a considerable time after the ET1 has been filed and that this length of time is not extraordinary and does not mean that a fair trial cannot proceed. Proportionality

[18]Ms Pitt argued that striking out the claims in these circumstances would be proportionate particularly in view of the detrimental effect that it is having on the Respondent’s business. He is unable to apply for some government contracts while he has ongoing discrimination cases in the Tribunal. He is also concerned about the loss of reputation to his business.

[19]I have to balance his loss and hardship against that of the claimant who would have no redress for her claims if they were struck out.

[20]Ms Pitt also argued that the claims should be struck out due to wholesale noncompliance with the Orders of the Tribunal and that the representative has also failed in their duty under the overriding objective. The Respondent provided a list of orders that had not been complied with. Again, the Tribunal will have to consider the issue of proportionality and fair trial.

[21]Finally, the respondent asked for the claims to be struck out under rule 37(1)(e) that a fair trial is not possible due to the delay as was relied upon above. Decision.

[22]Having considered all of the submissions, I am concerned about the delay in these proceedings. I note that there have been a number of occasions where delay has been caused by the conduct of the Claimant and her representatives. There have also been occasions when emails have not been answered.

[23]However I do accept what Mr Cowley says in relation to the very difficult circumstances that his organisation found itself in last year. I also note that the claimant’s GP medical records have now been obtained by the Claimant and can be forwarded to Mr Cowley and to the Respondent very shortly.

[24]I am concerned that there appears to be a lack of communication between both parties and that some of the correspondence between both parties has not always been courteous or professional. I accept that some orders have been breached and that there has sometimes been difficulty progressing the case due to the lack of communication between the parties. That said, I do not find that the behaviour of the Claimant amounts to scandalous, unreasonable or vexatious behaviour.

[25]I have also considered the arguments in relation to a fair trial. I note that the Respondent has raised concerns about the Claimant’s memory problems which may form part of her disability claim, and the difficulties that she may have recalling the events in question. However, it is not unusual for final hearings in many jurisdictions to be heard a number of months or years after the events in question. While I hear the Respondent’s argument that in view of this particular claimant’s specific reported memory problems the effect may be greater, these matters can be put to the Claimant in cross-examination at the final hearing and may undermine her credibility, but do not prevent a fair trial.

[26]As I do not find the claimant’s actions to be deliberately scandalous, unreasonable or vexatious, and I do not find that there to be difficulty with the issue of a fair trial, I do not strike out under Rule 37 1(b) or 37 1(e).

[27]I do note that a number of orders have not been complied with, or have been adhered to after the directed time. I have considered whether it would be proportionate to strike out the claims due to this. In view of the explanations given and taking into account the overriding objective, I do not consider that it would be proportionate to strike out the claims under rule 37 (1)(c) but this may be the subject of a costs application after the final hearing.

[28]The claims listed above are not struck out and all claims remain listed for final hearing.

Law

[29]Section 20 EqA provides as follows: “20 Duty to make adjustments(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.

(2) The duty comprises the following three requirements.

(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage…”

[30]The “applicable Schedule” is Schedule 8, and that provides, at paragraph 20, that a respondent is “not subject to a duty to make reasonable adjustments if [it] does not know, and could not reasonably be expected to know -… that [the claimant] has a disability and is likely to be placed at the disadvantage…”.

[31]Our focus here would be, as identified by the EAT in Environment Agency -v- Rowan

[2008] IRLR 20

, on identifying:(i) The provision criterion or practice applied by or on behalf of an employer;

(ii) The identity of non-disabled comparators, where appropriate; and

(iii) The nature and extent of the substantial disadvantage suffered by the Claimant, in comparison to the non-disabled comparators.

[32]In this regard, the Claimant was relying on a hypothetical non-disabled comparator. As noted by the Court of Appeal in Smith v Churchills Stairlifts plc

[2006] ICR 524

, the test is an objective one and it is ultimately the employment tribunal’s view of what is reasonable that matters. The focus is on assessing whether a PCP had indeed been applied, whether the employee was, as a result, placed at a substantial disadvantage, and then whether the employer had taken such steps as were reasonable to avoid any disadvantage caused.

[33]A claim of a failure to make reasonable adjustments may therefore require a tribunal to take the unusual step of substituting its own view for that of the employer, in marked contrast to the approach taken in respect of unfair dismissal, where such an approach amounts to an error of law.

[34]The EAT noted, in Salford NHS Primary Care Trust v Smith (

UKEAT/0507/10

), that the reasonable adjustment duty is “primarily concerned with enabling the disabled person to remain in or return to work with the employer”.

[35]There must be a causative connection between the disability relied on and the “substantial disadvantage”. The EAT in Project Management Institute - v Latif

[2007] IRLR 579

noted that the Tribunal should look at the “overall picture” when considering the effects of any disability, and that there must be evidence of some apparently reasonable adjustment which could be made.

[36]In assessing the reasonableness of any step, regard should be had to its likely efficacy, practicability and cost. So far as the efficacy of any step is concerned, it is only necessary to establish that there was a real prospect of the step avoiding or reducing the relevant disadvantage. Harassment

[37]Section 26 EqA notes that: “(1) A person(a) (A) harasses another person

(b) (B) if –

a. A engages in “unwanted conduct related to a relevant protected characteristic, and

b. The conduct has the purpose or effect of – i. violating B’s dignity, or ii. creating an intimidating, hostile, degrading, humiliating or offensive environment for B.”

[38]In assessing whether that had taken place in this case, we would first have to assess whether the matters asserted had taken place, and whether they amounted to "unwanted conduct".

[39]If we were satisfied that there had been unwanted conduct, we would then need to consider whether it had related to the Claimant’s disability, "related to" having a broad meaning, certainly wider than "because of" or "on the ground of".

[40]Finally, if we were satisfied that there had been unwanted conduct which related to the Claimant’s disability, we would need to consider whether it had had the purpose or effect of violating the Claimant's dignity, or of creating an intimidating, hostile, degrading, humiliating or offensive environment for her.

[41]In deciding whether the Respondent's conduct, if it took place, had the effect of violating the Claimant's dignity or of creating an intimidating etc. environment for her, section 26(4) EqA notes that three matters are to be taken into account; the Claimant’s perception, the other circumstances of the case, and whether it was reasonable for the conduct to have had that effect, a test which therefore has both subjective and objective elements.

[42]In relation to violating dignity, the EAT, in Richmond Pharmacology v Dhaliwal

[2009] ICR 724

, noted that dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended.

[43]In a similar vein, the Court of Appeal noted, in Land Registry v Grant

[2011] ICR 1390

at paragraph 47, that, “Tribunals must not cheapen the significance of these words [i.e. the words of section 26(1)(b) – “violating dignity” or “creating an intimidating, hostile, degrading, humiliating or offensive environment”]. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment.” Burden of proof

[44]Section 136 Equality Act 2010 deals with the burden of proof in discrimination cases and provides as follows: "(1) This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision."

[45]A two stage test is therefore usually involved. First, the claimant has to prove facts from which the Tribunal could decide that discrimination had taken place, and secondly, if so, the burden of proof then shifts to the respondent, which would have to prove, on the balance of probability, a nondiscriminatory reason for the treatment in question.

[46]We noted that the Court of Appeal, in Madarassy -v- Nomura International PLC

[2007] ICR 867

, confirmed that the statutory provisions dealing with the burden of proof require something more than less favourable treatment compared with someone not possessing the Claimant’s protected characteristic. In that case, Mummery LJ noted, at paragraph 56, that, “The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a Tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination”.

[47]We also noted that Sedley LJ, in Deman -v- The Commission for Equality and Human Rights

[2010] EWCA Civ 1279

, had confirmed that the “more” needed to create a claim requiring an answer need not be a great deal. In some instances it may be furnished by the context in which the act has allegedly occurred.

[48]The EAT also confirmed, in Essex County Council -v- Jarrett (

UKEAT/0045/15

), that it is not enough for a claimant simply to show that he or she has been treated badly in order to satisfy the tribunal that he or she has suffered less favourable treatment. A claimant must adduce evidence to support the contention that the treatment was less favourable in comparison with the treatment of others who did not share the same protected characteristic. In reaching its decision in that case the EAT drew on the earlier House of Lords decision of Glasgow City Council -v- Zafar

[1998] ICR 120

, which confirmed that the subjection of a claimant to unreasonable treatment is not, of itself, sufficient as a basis for an inference of discrimination.

[49]That point was also made by Simler J, as she then was, in Chief Constable of Kent Constabulary -v- Bowler (

UKEAT/0214/16

), where she said that, “Merely because a tribunal concludes that an explanation for certain treatment is inadequate, unreasonable or unjustified does not by itself mean the treatment is discriminatory, since it is a sad fact that people often treat others unreasonably irrespective of race, sex or other protected characteristic”.

[50]Finally, we noted that there can be occasions, particularly where a claimant is relying on a hypothetical comparator, where it is appropriate to dispense with the first stage of the burden of proof test and to focus on the second stage, the reason why the respondent treated the claimant in the way that it did. The utility of that approach was first pointed out by the House of Lords, in Shamoon v Chief Constable of the Ulster Royal Constabulary

[2003] UKHL 11

, which in fact pre-dated the statutory burden of proof rules, where Lord Nicholls noted that, “employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was”.

[51]That approach was endorsed by Elias J, as he then was, in Laing -v- Manchester City Council

[2006] ICR 1519

, where he noted that, “it might be sensible for a Tribunal to go straight to the second stage…where the employee is seeking to compare his treatment with a hypothetical employee. In such cases the question whether there is such a comparator - whether there is a prima facie case - is in practice often inextricably linked to the issue of what is the explanation for the treatment”. The Judge had made the same point in Brown -v- London Borough of Croydon (

UKEAT/0672/05

) which was subsequently endorsed by the Court of Appeal in that case. Findings

Introduction

[52]Our findings of fact relevant to the issues we had to determine, reached on the balance of probability where there was any dispute, are set out below.

[53]In assessing the balance of probability, we took into account the Guidance of Leggatt J, as he then was, in the commercial case of Gestmin SGPS SA -v- Credit Suisse UK

[2013] EWHC 3560

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

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

[55]This case, it appeared to us, was one where the parties (effectively treating Mr Newton as the Respondent) had very entrenched views on what had happened and on who was to blame for how matters had developed. We therefore looked for particular support for our findings from documented contemporaneous accounts. We also took into account the unchallenged evidence of certain of the Respondent’s witnesses, particularly Ms Minchinton, who, along with Mr Newton, played a central role in the management of the Claimant and the events giving rise to the Claimant’s claim. The Claimant

[56]The Claimant is highly educated, having a first degree in Music, two master’s degrees, one in Ethnomusicology and one in Manx Studies, and a doctorate in Ethnomusicology.

[57]Following her studies, most of the Claimant’s employment was in the higher education sector, working variously as a research development officer, research associate, research manager, research support officer, research and engagement officer, and research and innovation manager.

[58]The Claimant has suffered with mental health conditions for many years. She was diagnosed with OCD and depression in 2009, and later with anxiety, and, whilst employed by the Respondent, was undergoing diagnosis for complex PTSD, which was later formally confirmed. The Respondent

[59]The Respondent is a limited company whose sole shareholder and director is, and at all times has been, Mr Newton. The Respondent offers consultancy services to not for profit organisations. It has a small staff, during the period of the Claimant’s employment between July 2021 and August 2022, having between 7 and 9 members of staff. Those included the Respondent as Director and Ms Minchinton as Deputy Director, who had commenced employment shortly before the Claimant, in May 2021.

[60]During the Claimant’s employment, the Respondent had offices at numbers 19 and 21 Cathedral Road, Cardiff. Its initial office was at number 21, but when the same floor in number 19 became available, a lease of that was taken and the two offices were used side-by-side with a connecting door in between.

[61]The offices were largely open plan, but Mr Newton had his own office in the number 21 area, which although it had a door, was difficult to close. All other doors were fire doors, fitted with overhead closing devices. The Claimant initially worked in the number 21 area, close to Mr Newton’s office, before moving to the number 19 area in July 2022. The Claimant’s initial role

[62]The Claimant was initially recruited as Fundraising Account Manager, Commissioning and Grants. That was largely a pre-existing role where the previous incumbent had resigned to relocate. Whilst the Claimant’s previous experience had been in the higher education sector, and the Respondent’s focus was on the further education sector and charities, it was felt by the parties that she would be able to adapt to the role. Indeed, Ms Minchinton’s statement indicated that there was concern on the Respondent’s side that the Claimant was over-qualified for the role and might find it too mundane and boring.

[63]The role largely involved the Claimant working with the Respondent’s clients on the submission of tenders and bids for contracts. The Respondent operated by way of charging clients for time worked, typically following tenders or quotations. There was an expectation that 75% of an employee’s hours worked would be billable to clients.

[64]The Claimant commenced work on 12 July 2021, and was issued with a Statement of Main Terms and Conditions of Employment. Within that was a section relating to probation, the interpretation of which was fundamental to some of the Claimant’s complaints and which we therefore set out in full: “Probationary period The first 6 months of your employment will be a probationary period during which time your performance and conduct will be monitored and appraised. The probationary period may be extended before it ends at the Company’s discretion by up to three months. This is notwithstanding the Company’s right to terminate your employment before or on the expiry of your probationary period if you are found for any reason whatsoever to be incapable of carrying out, or otherwise unsuitable for, your job. At the end of your probationary period, your employment will be reviewed within a reasonable time of its expiry. Your probationary period will not be deemed to have been completed until the Company has carried out its review and formally confirmed the position in writing to you.”

[65]Further provisions of the document which had a bearing on the Claimant’s complaints were those relating to notice, where notice of one week was required during the probationary period, and one month thereafter, and relating to sick leave where the provision was as follows: “Sick Leave If you are ill and unable to attend work you should inform your employer as soon as possible to enable other arrangements to be made. You should also give details of the nature of your illness and the day on which you expect to return to work. You must inform your employer as soon as possible of any change in the date of your anticipated return to work. You will be entitled to Statutory Sick Pay (SSP) on production of an Employee’s Statement of Sickness (form SC2) which must be completed for sick leave of more than three days or a medical certificate for sick leave of more than seven days. These forms must be sent directly to your employer.”

[66]In relation to that, although the wording of the document referred to the provision of SSP only, in all circumstances, the oral evidence confirmed that the Respondent operated a policy of paying only SSP during probation, but of paying additional company sick pay thereafter at the rate of two months’ full pay and two months’ half pay in every rolling twelve month period.

[67]When the Claimant started, she worked between 10.00am and 5.30pm to align with a colleague who had a key to the building. She then worked between 10.00am and 6.00pm. Specific hours worked within the Respondent’s organisation were broadly flexible, with employees having various different starting and finishing times. In the Claimant’s case however it was known and appreciated that the Claimant would not generally work before 10.00am as, due to her conditions, she found mornings more difficult.

[68]It does not appear that any discussion took place about the Claimant’s health prior to her commencing work. Soon after she started however, in an email sent to Ms Minchinton and Mr Newton whilst she was self-isolating having been alerted to do so by the NHS Covid App, the Claimant explained that she had mental health issues. She confirmed, in an email to Ms Minchinton on 3 August 2021 after her return to the office, that she had quite debilitating mental health issues, OCD being the worst, and that lockdown had triggered a depressive episode.

[69]Ms Minchinton forwarded that email to Mr Newton, noting, “We just need to be on our toes here – this would class as disability I think”. Mr Newton replied saying, “Ok – I think we ask her to fully explain it to us…. so that we can support and make adjustments”.

[70]The Claimant was initially line managed by Ms Minchinton, and she noted in her witness statement that the Claimant did not take well to her role. During this hearing, the Claimant accepted that during her evidence.

[71]On 12 October 2021, Ms Minchinton held a three-month, mid-point, probationary review with the Claimant. In that, Ms Minchinton recorded that the Claimant, taking into account sickness absence and annual leave, had had only approximately 48% attendance, and that there had also been issues over time keeping. She also observed that the Claimant’s billable performance had only been at roughly half of the expected 75%. She further noted that the Claimant was still very slow to produce work, and that the Claimant appeared to be unfocussed and had trouble with deadlines and completing tasks. An example was that a deadline had been missed for one client which had led to fees having to be credited, and the client being passed back to Mr Newton as the client had had such an unsatisfactory experience. Ms Minchinton noted that the Claimant’s under-performance impacted on both her colleagues and on the Respondent’s clients.

[72]Ms Minchinton concluded the meeting by confirming that she was issuing the Claimant with a verbal warning regarding her performance, requiring her to reach 50% billable hours consistently within ten days, and 75% consistently within a further ten days. Ms Minchinton also confirmed that she was extending the Claimant’s probationary period by three months, to afford her the best opportunity to meet the required standards and to demonstrate her suitability for the role.

[73]Ms Minchinton, in her witness statement, noted that the Claimant’s attendance and attitude then improved over the following weeks, but that that improvement was short lived. Further issues arose regarding the Claimant’s work, including a complaint from a major client, the client for whom Mr Ross was the Chief Executive Officer, at the end of October 2021, that an error by the Claimant, a failure to upload a pricing schedule, had caused the client to be disqualified from consideration for a contract worth £850,000. That led to the Respondent having to credit four days’ worth of work that had been billed.

[74]Mr Ross made a further complaint to Mr Newton in January 2022 about the quality of the Claimant’s work, commenting that she was, “grossly incompetent”, and noting that the client’s retainer would be terminated if a different bid writer was not allocated.

[75]By that stage, Ms Minchinton was having serious doubts about the Claimant and was considering that her employment should be brought to an end. However, Mr Newton was keen to give the Claimant another chance and to use her skills, which he considered could be better utilised in a research role, the Respondent having, by that stage, secured some research assignments.

[76]Also by the end of 2021, the Claimant’s level of sickness absence had been high. In the period from the start of her employment in July 2021 to the end of that year, she had thirteen separate periods of absences of between half a day and three days, totalling seventeen and a half days. Ms Minchinton also observed that the Claimant appeared to have become mentally unwell, and that she met with the Claimant on a couple of occasions and suggested that she take time off to recover, but that the Claimant always responded that she needed to be in work as she was only paid SSP for her sickness absence. The Respondent offered to pay for a private psychiatric appointment for the Claimant at this stage, although that was ultimately not needed as the Claimant was able to obtain an appointment on the NHS.

[77]The Claimant then commenced counselling every Tuesday evening from late January, initially for twelve weeks which was then extended to eighteen weeks, and for which she left work about twenty minutes earlier than usual. The Claimant’s revised role

[78]In late January 2022, it was agreed that the Claimant would move to a new role, that of Research and Consultation Manager. The job description for that role indicated that the key elements of the role would include: “- To lead on the delivery and management of special (non-fundraising) projects commissioned by existing clients or bid for directly by the Consultancy through open tendering and procurement processes. - To undertake desk-based research, as well as design and manage surveys and focus groups, including marketing and promotion. - To research, draft, and write high quality reports on behalf of clients, demonstrating an understanding of their needs and a focus on their objectives. - To ensure that these projects are delivered to time and budget with high quality outputs. - To work productively with colleagues across the organization in the delivery of these projects, ensuring no delay or obstruction to their work or the final project.”

[79]There was a transitional period, as the Claimant’s replacement in her original role was not recruited until the end of February 2022.

[80]In the Claimant’s new role, her line management changed from Ms Minchinton to Mr Newton. Her work was largely focused on specific large projects, some of which were led by Ms Minchinton and some by Mr Newton.

[81]Whilst the Claimant appeared initially to perform her new role to a good standard, problems soon surfaced in relation to the completion of work to time and to an acceptable standard. It appeared to us that this might have arisen from a disconnect between the parties’ expectations of the roles. It seemed to us that the Respondent anticipated that the role would be driven by client expectations and its usual practices, where the research would be relatively formulaic, either through an examination of literature and/or through the holding of focus groups or structured conversations. By contrast, it appeared to us that the Claimant expected that she would undertake research in a way similar to her work in the academic field, where she would be free to develop the work in ways she thought appropriate. Ultimately, where clients were paying for the work, we anticipated that the former approach was likely to have been the required one.

[82]On 23 March 2022, seemingly not connected to any specific issues at work, although we noted that the Claimant was absent on 21 March 2022, the Claimant wrote to Mr Newton and Ms Minchinton with what she referred to as, “a quick update on my health situation”.

[83]Within her email the Claimant noted that she and the Respondent had not got round to a referral to Occupational Health to discuss reasonable adjustments. That related to a discussion the previous Autumn when the option of a referral to Occupational Health had been discussed, but where that had not been progressed, it appeared to us because the Claimant started psychiatric treatment on the NHS and her health then showed improvement.

[84]The Claimant noted that she was becoming increasingly aware that it seemed that her diagnosis needed to be updated to include cPTSD. She further noted that one of the symptoms of that was poor memory, and she was becoming increasingly aware that that was a problem for her. She commented that, whilst waiting to see a doctor and in Occupational Health, it would help for Mr Newton and Ms Minchinton to be a bit mindful that her memory was not brilliant. She referred to that as a “no biggy”, but suggested that they “try and pop things in an email or be patient if I ask something twice”.

[85]Putting instructions in emails was ultimately the reasonable adjustment that the Claimant contended before us that the Respondent had failed to implement. In her evidence, she contended that she had asked for that as a reasonable adjustment verbally on many occasions. That was resisted by the Respondent, and, drawing on the Claimant’s own comment in her email of 23 March 2022, where she appeared to be raising the issue for the first time and made no reference to any prior discussion of the point, for example by saying “as you are aware” or something similar, we considered that the email was the first time that the suggestion of putting instructions in emails had arisen. We further noted that in that email the matter had been raised very informally and without being raised as a specific need.

[86]Following receipt of the Claimant’s email, Mr Newton and Ms Minchinton met with her on 30 March 2022. The notes of the meeting, taken by Ms Minchinton and not objected to by the Claimant at any point, record that it had been scheduled at the Claimant’s request in order to update Mr Newton and Ms Minchinton on developments with her mental health and the impact she was concerned that may have on her performance.

[87]The Claimant noted that the counselling she had been undertaking had been traumatic and had made her unwell. She commented that she did not know what help and support she needed, and that she was unsure whether she should be in hospital or whether continuing to work was the best thing.

[88]She further noted that she was concerned about her work because her memory had been so badly affected, and she did not want people to think she could not do her job. She commented that she was displaying traditional PTSD symptoms, including hypervigilance, fear of loud noises, believing she was in trouble, and poor memory.

[89]It was agreed that the Respondent would action an Occupational Health referral immediately, and ways in which the Respondent could support the Claimant were also discussed. Mr Newton and Ms Minchinton raised concerns about the Claimant’s fitness to be in work, noting that they wanted to ensure that the Claimant was psychologically safe and supported. They also raised the prospect of the preparation of a Wellness Plan.

[90]The action points from the meeting were that the Claimant would consider whether she was fit for work, and would make a start on completing the Wellness Plan for review with Ms Minchinton, and that Ms Minchinton would pursue an Occupational Health assessment.

[91]The Wellness Plan was produced by the Claimant shortly after the meeting. Relevantly within that, the Claimant noted that, amongst other things, men shouting was a trigger for her, that, in terms of support for her at work, it would help for colleagues to be mindful of her forgetfulness, by for example putting clear instructions in emails, and that if her health deteriorated such that she was having a panic attack, that could usually be dealt with by a diazepam from her handbag.

[92]The Occupational Health Referral form was then completed by Ms Minchinton on 4 May 2022.

[93]In the meantime, a further issue arose relating to the Claimant’s performance. A call was received, during the Claimant’s absence on sick leave, by her replacement in her original role on 19 April 2022, from a client concerned that the Claimant had emailed him asking him to complete a large document at short notice, when he had on several occasions previously asked if there was any more required of him. The matter was addressed by the new employee, but he flagged up a concern to Ms Minchinton that there was a danger that future work from the client could be lost. A credit for work billed by the Claimant was implemented.

[94]On Monday 9 May 2022, the Claimant received two unexpected lengthy and distressing personal calls, which took up several hours of her time. She obtained privacy for those calls by taking them in the Respondent’s meeting room, which meant that she was away from her desk for much of the day.

[95]At 4.08pm on 9 May 2022, the Claimant emailed Mr Newton and Ms Minchinton. She commenced by saying, “Sorry I’ve been a bit distracted last week and this week – it’s all kicked off a bit”. She explained the calls she had received and how they had distressed her, and concluded by apologising if she had “been a bit in and out”. She noted that once she had seen her doctor things should calm down.

[96]Mr Newton replied to the Claimant’s email at 9.40am the following morning. He commenced the email by saying, “I appreciate these are difficult issues to juggle – but we do need to manage this – it’s hard for me to justify to wider colleagues why you aren’t at your desk”.

[97]Mr Newton went on to say, “I appreciate that some calls need to be reactive – but if we can block [it was accepted that this meant “block together”] those that you have control of that would be good – and we do need to ensure this doesn’t affect output – even if that means some flexibility in hours”.

[98]Then, after mentioning some client related issues where work was outstanding, Mr Newton closed the email by saying, “Can we meet on Thursday at 3pm to update where we are on this, discuss what support/adaptions you need to stop things like this falling through the net – I think you need to implement any support systems such as a list of tasks – rather than Rachal or I have to chase – and to look at the Occupational Health Referral and Probationary Review”.

[99]At 11.30am on 10 May 2022, the Claimant emailed Ms Minchinton, commenting that she was not sure why Mr Newton had not copied her in on his email, and that some of Mr Newton’s email was “problematic as far as managing a disability is concerned”. She commented that she was quite upset and not quite sure what to do. She asked if Ms Minchinton was to be involved in the meeting on 12 May 2022.

[100]Ms Minchinton replied to that email at 12.01pm, noting that she and Mr Newton had discussed the content of the email beforehand and confirming that she would be involved in the meeting. She stated, “I’m a bit worried that you say the email is problematic in terms of managing a disability – can you elaborate – as you know we’ve worked hard to accommodate your health needs so far so it’s important that you’re clear with us what you need”. She invited the Claimant to call her, which she did soon after.

[101]Before Ms Minchinton’s reply however, the Claimant had also replied directly to Mr Newton’s email at 11.54am. In that she stated, “My illness and consequent behaviour doesn’t need justifying to other colleagues. As it happens, all of my colleagues are aware that I’m unwell, so a simple “she was speaking with her doctor” should suffice if anyone raises a query. If my behaviour is of concern, you’re welcome to share with colleagues that I’m suffering a mental health episode and not to worry”.

[102]The Claimant then confirmed that she would diarise the 3.00pm 12 May 2022 meeting, and asked Mr Newton to clarify if it was a meeting to discuss her health, discuss specific projects, or was a probation meeting, commenting that, as far as she was aware, her probation had been due to end in midApril.

[103]The Claimant and Ms Minchinton spoke over the telephone in the afternoon of 10 May 2022. Ms Minchinton then followed up the call in an email at 2.43pm on that day, in which she summarised the content of the discussion. She copied the email to Mr Newton.

[104]Ms Minchinton recorded that the Claimant had stated that she found the workplace chaotic and felt that Mr Newton was inconsistent in his requests to her, and unprofessional in terms of the quality of his output to clients. Ms Minchinton asked the Claimant to bring evidence of any inconsistent requests to the meeting on 12 May 2022, and noted that she was perfectly happy to act independently to identify a way for the Claimant to feel more able to understand and prioritise the work Mr Newton gave her. She further noted that the Claimant may not always agree with what she had been asked to do, but that, as her employer, if Mr Newton asked her to complete a task she should do it.

[105]Ms Minchinton noted a comment that the Claimant had made along the lines of “I’ve watched a well-respected senior manager in the University in my last job back himself into a corner and get into a lot of trouble because of the way he dealt with my mental health…. It’s easy to do the wrong thing”. She commented that she felt that that was a veiled threat to Mr Newton and Ms Minchinton in relation to the way they were supporting the Claimant at the time. She commented that she and Mr Newton were working hard to treat the Claimant fairly, understood the laws and rules around discrimination, and had tried their best, as human beings as well as employers, to treat the Claimant with compassion, legally and fairly, whilst balancing the needs of the other employees and of clients.

[106]Ms Minchinton then set out several actions which she indicated showed that compassionate treatment. She concluded the email by noting that the Occupational Health appointment had been set for 23 May 2022.

[107]The Claimant replied at 3.22pm, wanting to respond “directly and semiformally” to some of Ms Minchinton’s points. With regard to Ms Minchinton’s comments regarding a “veiled threat”, the Claimant replied that her comments had not been a veiled threat, that she was not threatening anybody with anything, and she did not feel discriminated against.

[108]At the same time as the email exchanges referred to immediately above, i.e. in the morning of 10 May 2022, Mr Newton and the Claimant were involved in other email exchanges regarding a particular piece of work. At 8.30am Mr Newton emailed the Claimant, noting that he was “up against it with lots of meetings”, and asking the Claimant to undertake two tasks; to start to structure a particular report, and to get all focus groups live and promoted.

[109]The Claimant replied at 10.09am, noting with regard to the promotion of focus groups that she could do some basic tweeting, but that it seemed more sensible to do the targeted promotion when the strategy document and questionnaire, i.e. on which the views of the focus group were to be sought, were available.

[110]Mr Newton replied at 11.17am, stating that he thought it had been agreed to get people to sign up to the focus groups in advance through a diary marker, and then to send out the strategy document once signed off. He commented that otherwise they would be asking people to join focus groups with little notice.

[111]The Claimant replied at 11.42am, starting by saying, “Well this is the conundrum”, and pointing out that Mr Newton had suggested that people have more to say when they have a written document in front of them. She then set out three options; send an email to all contacts asking them to sign up for a focus group, and then send a second email again to all once the strategy was available; send an email to all contacts asking them to sign up, but then only send the strategy to those who signed up; and only send the invitation when the strategy document was available to be attached. She commented that none of the options were perfect, that she would go for the third option personally, but that she would do whatever Mr Newton wanted.

[112]Mr Newton then replied at 11.58am, noting that there was no conundrum, and that they had discussed and agreed the matter two weeks earlier. He stated, “Please just do as previously agreed (as confirmed [in] emails to you….) and action point 2 by the end of the day”. He concluded his email by saying, “If this creates an issue or is not deliverable please let me know and I will make adjustments for someone else to do the requested task”.

[113]This exchange was, we considered, an example of the disconnect between Mr Newton’s understanding of how the Claimant was to carry out her role, i.e. on a directed basis, and the Claimant’s understanding of it, i.e. that she was free to make suggestions as to how work was carried out.

[114]The Claimant became upset following the conclusion of her email exchanges with Ms Minchinton, and was seen by Mr Newton to be crying at her desk. He then noted that she had taken herself off to the toilet.

[115]Incidentally, a dispute arose in the course of the hearing as to whether the toilets were unisex or female only. The Claimant contended that, whilst the toilets had been female only, they had become unisex, whereas Mr Newton contended that they were female toilets at all times. The issue had some relevance for issue 7.1.8, and we took into account all evidence relating to it, before ultimately concluding, noting in particular the content of Ms Minchinton’s witness statement, that the toilets remained female at all times.

[116]Mr Newton then asked the female office manager to check on the Claimant in the toilet. The Claimant then asked the office manager to fetch her handbag, which she did. The Claimant then took a diazepam and later went home.

[117]The Claimant sent an email to Mr Newton at 4.37pm, apologising if she had alarmed him earlier, and thanking him for sending the office manager to check on her. She noted that she had had quite a major panic attack. She confirmed that she would be in work on the following day, and then sought some guidance from Mr Newton on the wording of the focus group invitations.

[118]Mr Newton was away from the office in Pembrokeshire on 11 May 2022, which required significant travel. He therefore replied to the Claimant very early that day, at 5.54am. He commenced by saying, “Thanks for the update. We need to manage your panic attacks and they impact they have. My assessment of yesterday is that a simple email from myself you, lost the Company circa 2 working days by the time Rachal, [the office manager] and myself were brought in to managing and supporting you. That was 40% of yesterday’s working capacity – at a time when we are below capacity. It is not reasonable and it is not sustainable”.

[119]Mr Newton then moved on to discuss the focus group invitation, noting that the approach had always been that the strategy document would follow and that they had discussed that several times. He referred to an email he had sent the Claimant on 23 April 2022, which he noted he had re-sent several times, and which he attached again. He concluded by saying, “It is critical this happens today without fail or excuse. It is two weeks behind and what is a simple task is now a major risk to the project and company reputation. “By copy of this email I am asking Rachal – given that I am travelling – to check in with you at 11am and 2pm. Rachal should there be concerns that this will not delivered please replace Cinzia with either [office manager] or [the fundraising manager] on this task”.

[120]Mr Newton sent a further email to the Claimant that morning, at 6.01am, in response to her email of the day before at 11.54am. In that, he noted that he partly agreed with the Claimant regarding the need to justify her absence to colleagues, but that the issue of scale needed to be considered, as simply saying that the Claimant was speaking to her doctor would not cover a call of several hours.

[121]Mr Newton noted that he really did appreciate that the Claimant was facing significant challenges, and that he was seeking to be as reasonable as possible within the constraints of running a financially viable business and meeting deadlines to clients. He commented however that being reasonable worked two ways, and that despite giving the Claimant a lot of time off to deal with a range of matters there had never been an offer from the Claimant to pick things up later on or on other days.

[122]With regard to the content of the meeting on 12 May 2023, Mr Newton commented that all three areas suggested by the Claimant were interlinked. Specific client matters would be discussed, and they would discuss any concerns arising from the Claimant’s health, and what adjustments could be made to address them and to improve the Claimant’s performance. He commented that they needed the Claimant to start to give them an idea of the further adjustments they could make to support the Claimant with her disability, to enable her to get to a level where they could confidently look at 75% billable days. He further stated, “If we can’t reach that then bluntly the economics of the post don’t work. I will not confirm you in post until I have the confidence that with reasonable adjustments this can be reached”.

[123]Mr Newton further commented that they needed to determine urgently if the Claimant was fit to work, and whilst he appreciated the Claimant’s concerns that she did not get paid, other than SSP, when not in work, it was equally not reasonable to expect the Respondent, as a small business, to bear a cost that threatened the viability of the entire business.

[124]Mr Newton concluded by saying that whilst the meeting formed part of the probationary period, it was not the final review meeting, which he was not sure could take place until they had the outcome from Occupational Health, to enable them to understand more of the Claimant’s disability, the further adjustments they could make, and the reasonableness of them.

[125]Also on the morning of 11 May 2022, Mr Newton called Lisa Buckley and one other employee to inform them that the Claimant had been unwell on the 10th. Ms Buckley noted in her witness statement that Mr Newton had called her to share that the Claimant had been unwell the day before and had had some sort of panic attack, and that he was very worried about her mental health. She noted that Mr Newton had said that he was letting her know so that she would know to try to support the Claimant if he or Ms Minchinton were not in the office.

[126]On 11 May 2022 Ms Minchinton checked in with the Claimant as Mr Newton had directed, and the tasks Mr Newton had set were completed.

[127]The meeting between the Claimant, Mr Newton and Ms Minchinton then took place on 12 May 2022 as scheduled. Ms Minchinton took notes, which were not disputed by the Claimant, and she also summarised the meeting at length in her witness statement.

[128]Mr Newton opened the meeting by referencing the concerns that had arisen over the Claimant’s performance, noting that there had been impacts that the Claimant herself had identified as arising from her health issues. The discussion then moved to the Claimant’s reaction to Mr Newton’s email of 10 May 2022 relating to her performance, her effective absence on 9 May 2022, and the impact of that on the team, and the need to adopt tools and support systems to help her manage tasks, with the Occupational Health review potentially supporting with that.

[129]Mr Newton noted that the Claimant had clearly been upset by his email and the subsequent conversations and emails, and that a lot of time and support had had to be offered to the Claimant, by he and Ms Minchinton and by the office manager, estimating that time equivalent to two working days for one person had been diverted. He commented that that was financially unsustainable for a small business.

[130]Mr Newton noted the adjustments and support that he felt had been provided to the Claimant, and commented that, had the Claimant not had a disability, for which adjustments and allowances were being made, then she would have failed her probation and had her contract terminated. He then noted that the Respondent had been working hard to give the Claimant the most support possible and to make the adjustments necessary to give the Claimant the opportunity to prove she could be successful in her role, but that it was now important that the Claimant provide a list of adjustments required to give the Respondent the opportunity to consider them.

[131]The Claimant’s performance and productivity was then discussed, with the Claimant commenting that she had completed all tasks asked of her, and with Mr Newton replying that that was not however at a productivity level that was sustainable, with he and Ms Minchinton undertaking work outside office hours to complete things. He observed that, in reality, the Claimant’s level of performance needed to be three times greater.

[132]Ms Minchinton then raised the complaint that had been made by a client at the end of April (referred to at paragraph 86 above), and Mr Newton observed that that reflected his concerns over the Claimant’s ability. The Claimant replied that she believed that she had been acting with ownership and initiative, but that that was not always appreciated by Mr Newton, and that what was being asked of her was not always clear. She stated that she wanted to be able to use her skills to manage her work in her own way.

[133]Ms Minchinton observed that communication appeared to be part of the issue, and Mr Newton commented that many of the answers the Claimant was looking for could be found in project documents and emails, and that he felt that the Claimant was not retaining information across projects or from meetings.

[134]Mr Newton reiterated his concerns over the financial viability of the Claimant’s role in light of her lack of billable hours. The Claimant responded that she had concerns that Mr Newton had an established way of working, with which she was not familiar, and that she needed a much clearer set of instructions for each task. Mr Newton replied that whilst he was happy to provide as much clarity as possible, someone at the Claimant’s level should not require that level of detail for every request.

[135]Ms Minchinton commented that it appeared to her that communication broke down after the first request from Mr Newton and that the Claimant should ensure that she had read and absorbed project documents and emails so that she gathered the information she had control over before seeking clarification.

[136]Ms Minchinton further observed that the Claimant needed to be raising the issues they had discussed with Occupational Health to put together a list of required adjustments, in addition to those already made, to enable her to deliver the role to the required standard.

[137]Mr Newton concluded the meeting by confirming that he was unable to carry out a formal probation review because there was still too much uncertainty about whether the Claimant’s performance would improve with reasonable adjustments or not. He suggested that that be revisited once the Occupational Health report had been received.

[138]Further issues regarding the Claimant’s performance arose on 20 May 2022, when Mr Newton was travelling by train to Manchester with Ms Buckley. Mr Newton had left instructions for the Claimant to complete certain tasks whilst he was away, and he had asked Ms Minchinton, who was in the office, to ensure that that happened.

[139]However, by the early afternoon, Mr Newton became aware that the Claimant was not able to follow his instructions. That led to an increasingly tetchy email exchange between Mr Newton and the Claimant, via Ms Minchinton who had contacted Mr Newton to alert him that the Claimant appeared to be experiencing difficulties.

[140]Mr Newton first identified, by email to the Claimant at 1.34pm copied to Ms Minchinton, three matters that he had instructed the Claimant to undertake. Ms Minchinton then replied at 2.32pm, noting that the Claimant had asked her to feed back her responses, which were that she had done what had been asked of her or had not been asked to do certain things. Mr Newton then replied at 3.29pm taking issue with the points the Claimant had made.

[141]The Claimant met the Occupational Health adviser by telephone on 23 May 2022, and the Report was produced the same day. The adviser noted that he recommended that the Claimant take a period of sickness absence, which he expected to be for a month, with a review consultation at that point. With regard to adjustments on the Claimant’s return, the adviser recommended making the Claimant’s hours of 10.00am to 6.00pm permanent, that communication of specific tasks should usually be by email or other written means, and that a wellness plan should be prepared.

[142]The adviser noted that the Claimant’s condition was permanent, but that the symptoms were treatable, and that he did not expect her capacity to work to be impaired in the medium to long term.

[143]The advisor further noted that there were now workplace factors impacting on the Claimant’s mental health, and that her mental health condition had worsened, but that the Claimant had been reluctant to take time off work. He commented that being in work when not well enough had impacted on the Claimant’s performance, which in turn had led to anxiety over performance, thus creating a “vicious cycle”. He commented however that he felt that that could be resolved.

[144]The Claimant was then absent for the next four weeks, initially to 17 June 2022 and then for a further three weeks. Ms Minchinton emailed the Claimant, noting that she would be absent, and the Respondent would not contact her during that period in order that she could properly recover. Ms Minchinton also offered a couple of keeping in touch meetings with the Claimant to ease her back into the workplace if she wished.

[145]While the Claimant was absent, a further issue of concern arose from work the Claimant had done prior to the commencement of her sickness absence. Whilst feedback on the documentation the Claimant had produced was expected, which would then have needed to have been picked up by someone else, principally Mr Newton or Ms Minchinton in her absence, Mr Newton was concerned that, due to the quality of the work undertaken by the Claimant, the amount of work he was required to do was significantly increased. Mr Newton took a holiday in Croatia in early June around the extended Jubilee bank holiday, but ended up working up to his departure, and whilst on holiday. That was confirmed by Ms O’Riordan, who accompanied Mr Newton on the holiday, in her witness statement.

[146]Prior to the Claimant’s anticipated return on 20 June 2022, Ms Minchinton emailed her, on 14 June 2022, to inform her that an Occupational Health review was to be scheduled, and asking her if she wanted to go into the office for an informal chat over a coffee before returning. She noted that if the Occupational Health review recommended further absence then that was absolutely fine, and that the Respondent was very keen that the Claimant did not go back to work prematurely, and was fully ready to return.

[147]The Claimant replied, noting that things had not gone as she had hoped, as it had been incredibly difficult to get medical support. Ms Minchinton then emailed the Claimant further, saying that she should not feel that the four weeks was a cut off date, and that they wanted the Claimant to be well. Ms Minchinton mentioned that she would be taking over the Claimant’s line management again. She repeated the offer of meeting over a coffee before the Claimant returned, which could be at the Claimant’s home or elsewhere if she preferred.

[148]The Claimant was initially expected back on 20 June 2022, but attended the review with the Occupational Health adviser on 21 June 2022 before doing so. He then recommended a further two to three weeks’ absence, suggesting that a return date within that timescale be agreed, and that the Claimant should then undertake a further phased return.

[149]During the Claimant’s sickness absence, Mr Newton and Ms Minchinton discussed ways that they could support her on her return. It was felt that the specific adjustments suggested by the Occupational Health adviser relating to working hours, written instructions and a wellness plan were already in place, but Mr Newton and Ms Minchinton felt that it would be best for the Claimant to move back to Ms Minchinton’s line management and to move into the 19 Cathedral Road area. Mr Newton, in his witness statement, indicated that that was to address the Claimant’s wellness to work document from earlier in the year, in which she had noted that she found men shouting triggering, as there were no men present in that particular area. Ms Minchinton however indicated that the move was to enable the Claimant to avoid sharing the office with Mr Newton and to defuse the tense relationship they now had. Bearing in mind the observations we have made above, we consider that Ms Minchinton’s rationale for the change was more accurately the case.

[150]At the end of June 2022, the Respondent took out a £25,000 loan, evidence of which was in the bundle, to support its cash flow, secured against Mr Newton’s property. Mr Newton confirmed that that was the first time that he had had to offer security in respect of business finance for the Respondent.

[151]On 4 and 6 July 2022, the Claimant and Ms Minchinton exchanged emails about her return and a possible meeting in advance of that. It was noted that the Claimant would return on 12 July 2022. A meeting in a coffee shop was arranged for 7 July 2022. In that meeting, Ms Minchinton informed the Claimant about the office move and agreed a phased return over two weeks, with the Claimant returning to full-time work in the third week. Ms Minchinton, in her witness statement, recorded that the Claimant was very happy with the proposed changes and was pleased to be line managed by Ms Minchinton again.

[152]Mr Newton then emailed the Claimant on 7 July 2022, noting the proposed phased return, the line management change, and the proposed working pattern. He also referenced the “presenteeism” issue identified by the Occupational Health adviser, and that the Claimant should take control of that and make a judgement as to whether she was fit for work. He concluded by saying that, given that they were already working with the majority of the adjustments proposed, he was confident that they could fine tune the adjustments to ensure that the Claimant was able to undertake her role.

[153]The Claimant then returned to work on a phased basis on 12 July 2022. On the following day the Respondent held its Summer social event, one of two social events for staff held each year. The event involved lunch at a local restaurant followed by drinks into the evening.

[154]As the Claimant was working only afternoons at this point, Ms Minchinton and Mr Newton suggested to her that she work the morning instead and then attend the lunch and drinks, which the Claimant did.

[155]One of the Claimant’s alleged acts of unwanted conduct (issue 7.1.19) related to the events of the afternoon of 13 July 2022. She contended that Mr Newton rolled his eyes, huffed and spoke over her, ordered drinks for everyone except her, and that the event ended with everyone being invited to Mr Newton’s house except her. She also contended that her replacement in the fundraising role was openly rude to her and ignored her.

[156]The Claimant’s witness statement repeated those contentions without providing any specific detail. The only additional evidence advanced by the Claimant about the event was a reference in her witness statement to the office manager, who was also present, saying to her that she could not believe that she was putting up with the way Mr Newton was behaving as she had noticed that he was being openly rude and rolling his eyes, and that the commissioning events manager had essentially egged him on.

[157]The Claimant did not call the office manager as a witness or seek a witness order to compel her attendance, noting only in her witness statement that she had approached the office manager to act as a witness, but that she had told her that she had been so upset by her experience working for the Respondent that she did not think that she could be involved with anything that may mean contact with Mr Newton.

[158]Mr Newton did liaise with the office manager over her attendance as a witness for the Respondent, and she replied to him stating that she would prefer not to participate, but if Mr Newton insisted and she had to attend due to a Tribunal Order then she would not attend as a witness for either side, but would speak about what she had seen and experienced and leave it at that. The Respondent did subsequently indicate to the Tribunal that it wished to make an application for a Witness Order to require the office manager to attend the Final Hearing, but ultimately that was not pursued.

[159]Mr Newton’s evidence about the events of 13 July 2022 was that the lunch had taken place around a circular table, and there was photographic evidence which confirmed that. He stated that food and drink orders were taken by going around the table and that he was not aware that anyone was excluded from ordering a drink.

[160]Ms Minchinton in her witness statement noted that during the meal everybody seemed to be having fun and chatting, and that Mr Newton had paid for all the food and drinks and that everyone could choose what they wanted. She noted that “Drinks flowed and everyone could order what they wanted when they wanted it – it was very informal and relaxed”.

[161]Ms Buckley in her witness statement provided very similar evidence, noting that Mr Newton ensured that drinks were ordered for all staff on an ongoing basis, that he was always happy to buy drinks and never left people out, and that he was a generous host.

[162]On balance, particularly in view of the unchallenged evidence of Ms Minchinton and Ms Buckley, we preferred the Respondent’s version of events.

[163]With regard to the contention that others were invited to Mr Newton’s house that evening and the Claimant was not, she confirmed herself that two members of staff left during the course of the afternoon and evening, and Mr Newton confirmed that one member of staff, an employee based in Manchester, went home with him as she was staying with him as she generally did when she was in Cardiff. Mr Newton and Ms Minchinton also both confirmed that Ms Minchinton initially went to Mr Newton’s home, but only to make it easier for her husband to pick her up. Ms Buckley confirmed that she left to go home at around the time that the event was wrapping up and people were beginning to disperse, and a copy of her taxi receipt was in the bundle.

[164]Again, on balance we preferred the evidence put forward by the Respondent, and did not see any indication that the Claimant was, in any sense, being treated unfavourably or to her detriment by not being invited to Mr Newton’s home.

[165]The following week, on the evening of 20 July 2022, the Claimant sent an email to Mr Newton and Ms Minchinton noting that she had received a call from a rare books dealer who wanted a Welsh University to raise £600,000 to buy a large collection of Chinese books from a private collector in America. The Claimant concluded her email by saying “it all looks a bit bonkers and might not be anything you’re interested in”, but she also observed that she had sat on Cardiff University’s rare books committee and had undertaken some fundraising in relation to the storage and cataloguing of acquired rare books.

[166]A social event held by the Respondent for its clients took place the following day, 21 July 2022, and Mr Newton spoke to the Claimant about the email and the proposition in the presence of Ms Minchinton and others. Mr Newton’s evidence was that the matter had been discussed in a humorous vein, reflecting the Claimant’s reference to it all looking “a bit bonkers”. That was supported by Ms Minchinton in her witness statement where she said that “I remember that everyone was laughing about it as it was so “left field”, including the Claimant”.

[167]Again, primarily in view of Ms Minchinton’s unchallenged evidence, we preferred the version of the events put forward on behalf of the Respondent. We did not consider that any laughter had been “at the Claimant” as alleged, but had been at the proposition being put forward.

[168]The Claimant was then absent due to illness the following day and again for half a day on 28 July 2022. She was then absent for eight days’ annual leave between 3 and 15 August 2022 to take part in a Celtic dance festival in France. Unfortunately the Claimant injured her ankles during rehearsals for that festival and returned with both her ankles strapped up.

[169]One of the Claimant’s allegations of unwanted conduct was that Mr Newton mocked her and pulled faces about her ankle injuries. This was set out at issue 7.1.21, although it transpired that the reference to the issue having occurred on 15 August 2022 should have been to 16 August 2022.

[170]The Claimant in her witness statement confirmed that she had not observed any such incident, but recorded that the office manager had told her, the day after, that Mr Newton had made fun of her for claiming that she had injured her ankles and had been waddling around the office pretending to be the Claimant.

[171]Mr Newton had not addressed the point in his witness statement, as he had focused on the alleged actions having taken place on 15 August 2022, as noted in the List of Issues, and had provided evidence confirming that he had not been in the office that day. During his oral evidence, when it became clear that the reference to the date was an error, and that that actions were alleged to have taken place on 16 August 2022, Mr Newton confirmed that he denied any such allegation.

[172]In the absence of the office manager who would have been a first hand witness to the alleged incident, we were not satisfied that we could conclude that it had taken place. We observed, in any event, that even if we had, there would have been little to point to it having been related to disability, as we anticipated that the Claimant’s ankle injuries did not themselves amount to a disability or would have been likely to do so.

[173]In terms of the Claimant’s further attendance at work, she returned after her annual leave on Tuesday 16 August 2022, but was absent again due to illness on Friday 19 August 2022, and remained absent due to her illness up to her dismissal on 25 August 2022.

[174]In relation to the period when the Claimant was in work between 16 and 18 August 2022, she contended as one of her allegations of unwanted conduct (issue 7.1.22) that her folders and documents had been removed or deleted and her name had been removed from things (we presumed electronically). The Claimant however provided no evidence relating to this matter in her witness statement and nor did she question Mr Newton on it. In fact the only evidence of any sort adduced in relation to the allegation was contained in Ms Buckley’s witness statement, where she noted that, in Summer 2022, the Respondent had moved to a new digital file storage system, which involved the migration of digital files with many being renamed or archived. A document within the bundle from 29 July 2022 suggested that work was being undertaken in relation to the Respondent’s systems and documents.

[175]In the absence of any clear evidence about the movement or deletion of files and documents, and in circumstances where it appeared that work on the Respondent’s systems was being undertaken which potentially explained any difficulty the Claimant may have had in finding her documents, we were not satisfied that there had been any, or certainly any inappropriate, movement or deletion of the Claimant’s folders and documents.

[176]By 19 August 2022, Mr Newton had decided that the review of the Claimant’s probation should be held. In his witness statement he referred to the Occupational Health report having identified certain adjustments, which he was confident were in place, and that the Occupational Health adviser had confirmed that the Claimant was fit for work, as justification for his view that he could move forward with the probation review.

[177]In the early hours of 19 August 2022, at 1.15am before he had received any indication that the Claimant was going to be absent that day, Mr Newton emailed the office manager to ask for details of the Claimant’s sickness record, which the office manager provided at the end of that working day, at 4.59pm.

[178]Whilst there was no direct documentary evidence to confirm it, Mr Newton clearly must have spoken to Ms Minchinton on 19 August 2022, or possibly the day before, as Ms Minchinton, at 2.29pm, sent an email to Mr Newton headed, “Anything to add?”, setting out the concerns she felt had arisen in relation to the Claimant’s performance since her return from sick leave in July

[179]Ms Minchinton then sent a lengthier email to Mr Newton at 4.51pm, in which she set out concerns over the Claimant’s attendance and performance going back to the commencement of the Claimant’s employment in July 2021. Referenced the extension of probation in October 2021, the changed role in early 2022, the meeting with the Claimant in May 2022, and the Occupational Health referral and recommendations.

[180]Ms Minchinton went on to say that, since the Claimant’s return from sick leave, she had worked almost exclusively on one or two projects, but had not delivered those at an acceptable standard. She referred to the Claimant’s work as inconsistent and of poor quality, particularly given her academic background.

[181]Later that night, at 10.39pm, Mr Newton cut and pasted Ms Minchinton’s email into an email he sent to a friend of his who had a legal background and whom he wished to attend the probationary review meeting with the Claimant, which he anticipated holding on Tuesday 23 August 2022. In that email Mr Newton indicated that his intention was that the probationary review would be undertaken ideally on the morning of 23 August 2022, noting that the intention was that the Claimant would fail her probation unless other issues came to light.

[182]Mr Newton further noted that Ms Minchinton would be doing the hearing and that he would then deal with any appeal. He noted that they, we presumed that that meant Mr Newton himself and Ms Minchinton, did not expect the Claimant to go easily, and that Ms Minchinton was conscious of veiled threats from the Claimant about a Tribunal claim. Mr Newton confirmed that the intention would be that Ms Minchinton would speak to a script, the outline of which he included in the email, that there would then be an adjournment for the Claimant to compose herself and to respond with anything she wished to say, which would then be considered during an adjournment with the Claimant being placed on paid leave at that point. The proposed script was in the hearing bundle.

[183]Mr Newton’s friend emailed him and Ms Minchinton on Sunday 21 August 2022, noting that she was available on the following Tuesday morning. Ms Minchinton then replied on Monday 22 August 2022 at 9.46am, noting that the Claimant had taken the day as sick leave, so they would not be able to hold the meeting on the following day as they needed to give the Claimant 24 hours’ notice of it.

[184]In relation to the Claimant’s reporting of sickness absence, her contract noted that she should inform her employer as soon as possible to enable other arrangements to be made. It noted that she should also give details of the nature of the illness and the date of the expected return to work.

[185]In addition to the contract, in a return to work form completed by Ms Minchinton on 11 October 2021, she had highlighted to the Claimant that sickness absence reporting needed to be by telephone as close to 9.00am as possible. There were several WhatsApp messages in the bundle which recorded the Claimant’s absence, and in which she herself noted, initially in September 2021 that she did not realise that she had to call by 9.00am and would bear that in mind in future, and later that she knew that she was meant to ring by 9.00am but was struggling to do so.

[186]On Tuesday 23 August 2022 at 10.11am, following receipt of a further WhatsApp message from the Claimant to the office manager, Mr Newton sent a WhatsApp message to the Claimant, noting that he understood from the office manager that the Claimant was due to see a doctor and observing that the Claimant had, on three occasions, failed to follow the Respondent’s sickness policy, which was not acceptable. He asked the Claimant to telephone Ms Minchinton by 10.30am so the Respondent could properly understand what was happening.

[187]The Claimant did not contact Ms Minchinton as requested, but later on 23 August 2022 at 5.06pm she emailed Ms Minchinton. In that the Claimant said that she had suffered a mental health crisis and that all her energies had been put into obtaining treatment. She attached a sick note and concluded by saying that she would be in touch when she was in a more lucid state and able to converse. She attached a Fit Note to her email dated 23 August 2022, certifying her as unfit to work for 28 days due to “work stress”.

[188]Ms Minchinton replied to the Claimant’s email the following morning at 9.10am. In that, she noted that the office manager had told her that the Claimant had been in touch with her on WhatsApp, but that as the Claimant had not spoken to her herself, she had not realised that she was struggling. She stated that the Claimant should of course take time off and recover.

[189]Ms Minchinton noted that the Fit Note had referred to work stress as the reason for absence, and that she was concerned that the Claimant had not mentioned that to her, and therefore that she had not been able to rectify anything that had caused the Claimant difficulty. She further commented that the Claimant should remember that she was always there to help, and that if the Claimant was experiencing stress related to work that was always something she would want to know about.

[190]However, later that day, Ms Minchinton discovered the existence of a second Twitter account operated by the Claimant. Ms Minchinton further noted that the Claimant had sent several tweets, covering a range of issues, on 23 August 2022, the day on which she had said that she had been putting all her energies into obtaining treatment and had not been in a lucid state or able to converse with Ms Minchinton.

[191]The discovery of the Claimant’s Twitter activity of 23 August 2022 ultimately led to Mr Newton taking the decision to dismiss the Claimant on the ground of gross misconduct rather than proceeding with the anticipated dismissal for failure to pass probation. He took legal advice, although the substance of that advice was not before us, and proceeded to dismiss the Claimant without reference to any meeting or application of any procedure, by way of a letter dated 25 August 2022. That letter was headed “Termination of Employment – Failure of Probationary Period”, and confirmed that the Claimant’s employment was ending with immediate effect and that she would be paid in lieu of the one week’s notice to which she was entitled under her contract.

[192]In the letter Mr Newton referred to the Claimant having been on probation for in excess of 59 weeks, and that since starting her employment the Claimant had been absent for 74 days. He further noted that they had approached the review of the Claimant’s probation period on the basis that she had a confirmed disability, and he referenced what the Respondent contended had been reasonable adjustments to support her.

[193]Mr Newton went on to note that concerns existed over the quality of the Claimant’s work and her attitude to work, disregarding the period of April and May 2022 prior to the Claimant’s lengthy sickness absence. He then referred to the particular concerns over performance that Ms Minchinton had alerted him to in her email of 19 August 2022.

[194]Mr Newton also referenced the Claimant’s repeated failures to follow the Respondent’s sickness policy by reporting her absence by WhatsApp, generally to the office manager, rather than by telephone to her line manager. He also noted the Claimant’s failure to respond to his request on 23 August 2022 to contact Ms Minchinton until after 5.00pm on that day.

[195]Mr Newton then referenced the Claimant’s second Twitter account, noting that her activity on 23 August 2022 indicated that she was lucid and could have had capacity to contact the office, which he asserted made her failure to do so an act of insubordination. He also noted that the Claimant’s Twitter activity indicated that she had attended a job interview when she had informed the Respondent she was not fit for work, and had made derogatory comments about Mr Newton implying that his absence due to Covid had not been genuine.

[196]Mr Newton further stated that the Respondent had sought to do all it could to sustain the Claimant’s employment, to make adjustments, and to support the Claimant to be able to confirm her in post, but that the Claimant had made no attempt to respond to them. He further stated that he felt that the Claimant’s actions had now gone to the point where she had removed the bond of trust that needed to exist between employer and employee.

[197]Mr Newton concluded his letter by saying that whilst it was not his preferred course of action to dismiss by correspondence, the Claimant’s action left him with no choice, noting that he had been advised that as her present absence was due to work related stress rather than her wider mental health conditions, it was appropriate to dismiss at that point rather than wait for her to return to work.

[198]The Claimant was paid in lieu of a week’s notice, initially at SSP level as the Claimant was absent due to sickness, but that was later increased to a week’s full pay in March 2023, following the submission of the Claimant’s Tribunal claim.

[199]Subsequent to the Claimant’s dismissal, the Respondent produced calculations which it contended indicated that the Claimant’s period of employment had led to an overall loss to the Respondent of some £23,000, when calculating her salary and other overheads, and refunds made to clients, and setting that against the value of the bills attributable to the Claimant’s work. The Respondents HR advisers also produced a sickness and absence summary report for all the Respondent’s staff between 1 July 2021 and 20 August 2022, which noted that the Claimant had had 26 separate absences and a Bradford Factor of over 50,000, with the next highest scoring employee having had three separate absences and a Bradford Factor of 132.

Conclusions

[200]Taking into account our findings of fact and the applicable legal principles, our conclusions in relation to issues we had to determine were as follows. Although the first issue set out in the List of Issues for us to determine was that of time limits, we decided that the best approach would be to leave consideration of that issue to the end, on the basis that if, as subsequently transpired was the case, we decided that the Claimant’s substantive complaints were not made out, then we would not need to address the issue of time limits. We addressed the particular complaints in order, retaining the paragraph numbering of the List of Issues for ease of reference. 2. Wrongful dismissal/notice pay

[201]The Claimant’s particular notice period depended upon whether her probationary period had ended at the time of her dismissal or not, the particular clause in her Statement of Employment Particulars providing that during the probationary period the notice was one week on either side but that, after satisfactory completion of the probationary period the notice was one month on either side, irrespective of length of service. Our focus therefore was on whether, as contended by the Claimant, her probationary period had ended, or whether, as contended by the Respondent, it was still live at the point of the termination of employment. We noted that the probationary period was initially six months but was extended in October 2021 by three months, making nine months in total. In view of the date of commencement of the Claimant’s employment of 12 July 2021, that meant that it was due to expire on 12 April 2022.

[202]No notification of whether the probationary period was either successfully or unsuccessfully concluded prior to its expiry was provided, nor was any meeting to review the probationary period scheduled prior to that point. It was only one month after the chronological expiry of the notice period on 12 May 2022 that any form of probationary review meeting took place, although even then the indication from the Respondent was that the actual review would need to take place once Occupational Health advice was available. Whilst, as we have observed, a period of one calendar month elapsed following the chronological expiry of the probation period and the probation review meeting, we noted that, due to holidays and sickness absence, the Claimant had only been in work for approximately ten working days during that period.

[203]We noted the wording of the probationary period clause which was that the Claimant’s employment would be “reviewed within a reasonable time of its expiry”, which we interpreted as anticipating that a review meeting would be held after the chronological expiry of the probation period. We further noted that the clause confirmed that the probationary period would not be deemed to have been completed until the Respondent had carried out its review and formally confirmed the position in writing to the Claimant.

[204]In our view, the probationary period clause did not mean that once a probationary period, together with any extension, had chronologically expired it had automatically been satisfactorily completed, i.e. it had been passed. The wording we have noted envisaged that it may be subject to review after that point, and that it was not to be treated as having been completed until formally confirmed. We also noted that the Claimant, in her email exchanges with Mr Newton on 10 May 2022, specifically asked whether the meeting on 12 May 2022 was a probation meeting, stating only that, as far as she was aware, her probation had been due to end in mid-April. She did not advance any contention, whether then or subsequently, that her probation period had already ended or that the Respondent had no business in discussing her probation thereafter.

[205]The meeting on 12 May 2022 confirmed that no decision on probation would be taken until Occupational Health advice was available, and the Claimant was then absent for seven weeks, returning on a phased basis. Whilst the Claimant was never given formal notice of the intended probation review meeting on 23 August 2022, it was clear from the internal Respondent emails of 19 August 2022 that that was to take place.

[206]Overall, we concluded that the Claimant was still within her probationary period when her employment ended on 25 August 2022 and therefore was only entitled to one week’s notice. She was subsequently paid in respect of that one week’s notice and therefore her wrongful dismissal claim failed. 4. Direct Disability Discrimination

[207]We noted that the act of less favourable treatment was asserted to have been the dismissal of the Claimant, and that we then needed to decide whether the Claimant, by being dismissed, was treated less favourably than the Respondent treated or would treat others. We further noted that the Claimant relied on a hypothetical comparator in this regard.

[208]We noted the scope of that comparison as directed by Section 23 EqA. Section 23(1) notes that for the purposes of a direct discrimination claim there must be no material difference between the circumstances relating to each case, i.e. between the Claimant and the comparator, and Section 23(2)(a) notes that the circumstances include a person’s abilities, or as would be the analysis in most cases, the person’s lack of abilities, if the protected characteristic is disability as was the case here. In that regard, the EHRC Employment Code states, at paragraph 3.29, that, “An appropriate comparator will be a person who does not have the disabled person’s impairment but who has the same abilities or skills as the disabled person (regardless of whether those abilities or skills arise from the disability itself)”.

[209]We noted that the dismissal of the Claimant took place by reason of what was considered to be gross misconduct, but in circumstances where there was a poor relationship between the Claimant and the Respondent’s owner, and where there were significant concerns over the Claimant’s performance and also concerns over her levels of attendance.

[210]We did not need to consider the particular reason for dismissal in this case, as would have been required had we been dealing with an unfair dismissal claim, let alone were we to consider whether dismissal for any particular reason was fair or unfair in all the circumstances. However, we were satisfied that the reason for dismissal, and also the reason that would seemingly have applied in the very near future if the dismissal for gross misconduct had not taken place, i.e. concerns over the levels of performance, would have been the same for any comparator.

[211]We noted that the Claimant in her submissions to us was that, whilst there may not be overt evidence of specific acts of discrimination, the overall narrative of the evidence pointed to the Respondent, in the form of Mr Newton, having a level of paranoia towards individuals with disabilities. She referred to a particular Employment Tribunal case against the Respondent that was in progress when she was in employment, where the case settled at a fairly early stage.

[212]The Claimant also pointed to what she perceived to be unfair treatment of another employee who had returned from a lengthy period of sickness absence. However, beyond the fact that an Employment Tribunal claim by reference to disability was brought by a former employee, no evidence was put before us about their treatment and how it might have allowed us to draw an inference of discriminatory treatment.

[213]In addition, we noted that the Claimant had had quite significant sickness absence in 2021, in addition to her performance concerns, indeed to such a level where Ms Minchinton confirmed in her evidence that she was looking to dismiss the Claimant at that time, and yet Mr Newton made the decision not to dismiss her but instead to move her into a different role. We considered that had the Respondent, in the form of Mr Newton, been motivated to dismiss the Claimant because of her disability, i.e. effectively due to her unreliability and potential litigiousness, then he would have done so at the earliest possible opportunity, and in circumstances where the Claimant herself accepted that she was not performing in her job. The fact that he did not do that suggested to us that he was not motivated to dismiss the Claimant by reason of her disabled status.

[214]Consequently, we did not consider that the Claimant had been less favourably treated because of disability. 5. Discrimination arising from disability

[215]We noted the two elements of unfavourable treatment that the Claimant contended arose in this case which she said were in consequence of something arising in consequence of her disability.

[216]The first was that the Respondent had caused the Claimant to have a panic attack by the way the Respondent, spoke to her. The “something arising in consequence of the Claimant’s disability” was said to be, “having a panic attack”.

[217]We discussed with the Claimant during the hearing the apparent circularity of that analysis, and queried whether the matter really was more one of unwanted conduct, i.e. of harassment, the particular actions which appeared to have been said to have caused the Claimant to have the panic attack being covered by issues 7.1.4 and 7.1.5.

[218]Analysing the first discrimination arising from disability complaint in the context of Section 15, we did not consider that anything said or written to the Claimant which could be contended to have amounted to unfavourable treatment, could be said to have been something which arose in consequence of the Claimant’s disability.

[219]In any event, even if that connection could have been made, we did not consider that it could be said that Mr Newton’s email of 10 May 2022, and Ms Minchinton’s subsequent telephone discussion and email with her on the same date, could be said to have amounted to unfavourable treatment. Whilst the Claimant may have perceived matters in that way, we did not think that it could be reasonably said that they should be interpreted in that manner.

[220]Mr Newton simply recorded issues arising from the Claimant’s almost complete lack of availability the day before, in a straightforward manner, before moving on to other work-related matters. Ms Minchinton then had a conversation with the Claimant at her request, the tone of which appeared to be largely sympathetic and caring, as seemed to us to be very much the case with the communications between the Claimant and Ms Minchinton throughout the Claimant’s employment.

[221]Ms Minchinton saw fit to record the discussion in an email, and did so again in a straightforward manner, taking issue only with what she perceived to have been the Claimant’s “veiled threat”. Whilst the Claimant then and now was of the view that she was not making any sort of threat, we considered that the raising of the matter, whether or not with any form of suggestion that litigation or other complaint could be pursued, was a reasonable interpretation of the Claimant’s words, and we could see nothing wrong with Ms Minchinton raising her concern about that.

[222]We further proceeded to consider whether, had we concluded that there was unfavourable treatment because of something arising in consequence of the Claimant’s disability, we nevertheless considered that what happened was a proportionate means of achieving a legitimate aim, and we concluded that it would have been. We were satisfied that the particular aims advanced by the Respondent were legitimate ones, in the form of managing an employee with various medical conditions so that they could maintain adequate levels of attendance and performance, and managing performance within a team context and within the workforce as a whole. As we have noted, we felt that the matters were put forward by both Mr Newton and Ms Minchinton in a straightforward manner, which we felt was proportionate in the circumstances.

[223]With regard to the Claimant’s second assertion of unfavourable treatment because of something arising from disability, the dismissal, we fairly straightforwardly concluded that the act of dismissal was to be viewed as unfavourable treatment. Our focus then was on whether that act was because of something arising in consequence of the Claimant’s disability, the thing advanced by the Claimant being her sickness between May and July 2022, and possibly more generally.

[224]Whilst we have already noted the Claimant’s contention that she felt that Mr Newton had a degree of paranoia about disabled people, we did not consider that the Respondent’s actions relating to the Claimant, particularly those relating to her sickness absence, provided any basis for that assertion.

[225]As we have already noted, the Claimant had quite significant absence, albeit not on a long term basis, in 2021, and yet the Respondent did not take the opportunity to dismiss the Claimant at the end of 2021 when it appeared that even she would have accepted that that would have been a reasonable step to take. In addition, although the Claimant’s sickness absence was identified in the documentation produced by Mr Newton and Ms Minchinton on 19 August 2022, and references were made to her degree of sickness absence in the dismissal letter, we considered that those references were very much passing references, and that the concerns the Respondent had about the Claimant were very much focused on her performance, and ultimately on her conduct on 23 August 2022. We did not consider that the Respondent was motivated, or would have been motivated, to take the action it ultimately did, or indeed that it proposed to take, in August 2022, had the only issue arising in relation to the Claimant been her level of sickness absence. Consequently, we saw nothing to lead us to a conclusion that the dismissal of the Claimant was because of the thing arising in consequence of her disability, i.e. her sickness absence.

[226]Consequently, the Claimant’s discrimination arising from disability complaint failed. 6. Reasonable adjustments

[227]In analysing this complaint, we noted that the Respondent accepted that it applied the PCP of requiring employees, certainly those at the level of the Claimant, to self-manage deadlines and tasks.

[228]We noted that the Claimant asserted that this was first requested in September 2021 and she advanced in her evidence that she had raised the issue of receiving instructions in writing verbally on many occasions. However, we did not consider that the evidence supported the Claimant’s contentions.

[229]Whilst the Claimant, in her early emails to Ms Minchinton and Mr Newton in August 2021 when she first confirmed to them that she had mental health issues, referenced that her conditions affected her memory, she did not at that stage make any reference to needing instructions in writing. Indeed the point did not arise in the meeting on 30 March 2022 even where the Claimant again noted that she was concerned about her work because her memory had been badly affected. The issue only arose in writing for the first time in the Wellness to Work Plan completed at the end of March or early April 2022. There, in answer to a question as to what the Respondent could do to support and help the Claimant’s wellbeing in work she replied, “being mindful of my forgetfulness – such as putting clear instructions in emails.” That point was then made by the Occupational Health adviser in the Report dated 23 May 2022 where it was recommended that communication “be via email for key tasks”.

[230]Whilst no direct evidence was produced to us in relation to the point, we were satisfied that it could be said that the PCP of requiring employees to selfmanage deadlines and tasks put or potentially put the Claimant at a substantial disadvantage compared to someone without her disability, due to her memory problems. We were then satisfied that the Respondent knew, or could reasonably have been expected to have known, that the Claimant was likely to be placed at that disadvantage by the end of March or early April 2022 when the Claimant completed her Wellness to Work form. As we have noted, the point was reinforced by the Occupational Health adviser in May

[231]We were however satisfied that the Respondent had taken reasonable steps to avoid that disadvantage. We noted that, by the spring of 2022, the Claimant was working in the research role and the focus of her work in that role was on large projects. Those projects were being developed by way of specific plans and methodologies. They also proceeded by way of meetings with the clients at which the work required of the Respondent was discussed. In our view, for the majority of matters the Claimant was tasked with undertaking, the expectations of her would have been clear from the client meetings and the project plans and methodologies.

[232]Mr Newton in his evidence before us appeared to focus on the need to provide the Claimant with instructions for ad-hoc tasks, and that seems to have been supported by the Occupational Health adviser’s wording where communication by email was suggested for “key tasks”. Whilst we obviously were not privy to all evidence of communications between the Claimant and the Respondent, and no doubt there were many which took place purely verbally, there was nevertheless, in our view, a reasonable amount of documentation within the bundle which indicated that Mr Newton was providing instructions to the Claimant by email.

[233]Whilst not directly relevant for this particular complaint, our view was that it appeared to us that it was not necessarily the case that Mr Newton was not providing instructions to the Claimant in writing, but more the case that the Claimant did not appreciate the instructions and directions she was being given. There were indications that the Claimant found not being able to take the initiative on projects hard, and where she disagreed with Mr Newton’s approach. As Ms Minchinton confirmed to the Claimant however it was ultimately Mr Newton’s business. Mr Newton stood to either succeed or fail by the success of the business, and it was therefore understandable that he wanted his employees to work in a particular way. Whilst it was again understandable that the Claimant had her own ideas about undertaking her research role, particularly as she had significant experience of that in her academic career, it appeared to be that disconnect between the parties which caused the communication difficulties, as opposed to any failure by the Respondent to provide instructions outside the anticipated work streams in writing. Consequently, we did not think that the reasonable adjustment claim was made out. Harassment related to disability

[234]With regard to the twenty remaining asserted acts of unwanted conduct, we focused first on whether the acts happened in fact, and, where we concluded that they did, we then moved on to consider whether what was said to have happened could have been said to have been unwanted, and, again if so, whether it related to disability. Where we did, we then moved on to consider whether the conduct had the purpose or effect of violating the Claimant’s dignity or of creating the required intimidating etc. environment. We dealt with each of the asserted acts of unwanted conduct in turn.

[235]With regard to the purpose or effect of an unwanted conduct, for convenience we refer to “violating dignity” as a shorthand for the entirety of the wording of section 26(1)(b), rather than repeat both strands of that sub-section.

[236]We found it difficult to discern the evidential basis for this allegation. In the List of Issues it was said to have taken place in “early May 2022” (the reference to 2023 was clearly an error). It comes before several allegations in relation to events which are said to have happened on 10 May 2022. In her witness statement, the Claimant referenced Mr Newton becoming angry on 10 May 2022 itself but the reference to the Claimant having sent a document to a particular client, “BRC”, appeared to relate to issues on or around 20 May 2022.

[237]The matter was not specifically raised with Mr Newton in cross-examination, and we therefore did not consider that there was sufficient evidence to enable us, on balance, to conclude that this event happened in fact. Indeed, we noted that the Claimant in her witness statement stated that her various complaints related to a period that began on 10 May 2022.

[238]As we have already noted, the Claimant, in her witness statement, referred to various incidents having taken place on 10 May 2022. That included an assertion that Mr Newton asked her “quite a vague question” and that he “became angry” and “was slamming doors”. Mr Newton denied those matters when they were put to him, and there was some support for his position with regard to the potential slamming of doors from Ms Buckley in her unchallenged witness statement where she observed that the internal door between Mr Newton’s office and the other work area was very light and was difficult to shut, let alone slam. She further observed that she had not seen Mr Newton slam any door in temper or otherwise.

[239]On balance, we again did not consider that there was sufficient evidence to lead to us concluding that this allegation was made out in fact.

[240]We discerned from the documentation in the bundle that this allegation related to the exchange of emails between Mr Newton and the Claimant regarding the sending of invitations to sign up to a focus group. The emails sent by Mr Newton did not directly reference any concern that the Claimant did not have a sufficient understanding of the project. We considered however that Mr Newton’s last email on this particular point, that sent on Tuesday 10 May 2022 at 11.58am, could potentially be considered to imply a lack of understanding as he concluded that email by saying, “If this creates an issue or is not deliverable please let me know and I will make adjustments for someone else to do the requested task”.

[241]With regard to the second element of this allegation, Mr Newton’s insistence that the Claimant send invitations, it was clear that that indeed happened, as, in his last email, Mr Newton stated, “Please just do as previously agreed”. There was no indication however that that was in any sense contrary to the particular client’s instruction.

[242]Overall therefore, we were broadly satisfied that at least part of this allegation was made out in fact in that Mr Newton clearly did send an email to the Claimant insisting that she send out invitations, and there was an element of implication in the email exchange that the Claimant did not sufficiently understand what was needed for the project. However, regardless of that, we did not see that the criticism and direction could be said to have related in any way to the Claimant’s disability or to disability generally. Further, it was in our view a reasonable management instruction and, notwithstanding the Claimant’s perception, we did not think that it could reasonably be said that Mr Newton’s emails could reasonably be said to have violated the Claimant’s dignity or have created the offending environment.

[243]This allegation was largely made out in fact. Mr Newton did send an email to the Claimant on 10 May 2022, in response to an email the Claimant had sent the evening before in which she had said, “Sorry, I’ve been a bit distracted last week and this week – it’s all kicked off a bit”. In that email, Mr Newton, after saying that he appreciated that there were difficult issues to juggle, did note that the issue needed to be managed and that it was hard for him to justify to colleagues why the Claimant was not at her desk. He did not specifically however reference the amount of time the Claimant had spent away from her desk the day before. He also did not specifically request the Claimant to make the calls by appointment, although he did say that it would be good if the Claimant could block together calls that she had control of.

[244]Again we saw little to support the Claimant’s contention that this conduct related to disability. Beyond that however, whilst we could understand that this was something that the Claimant subjectively found unwelcome, we again did not consider that it could objectively be considered to have violated the Claimant’s dignity in any event. As we have noted, the email was not sent in isolation but in response to the Claimant’s email of the evening before, and Mr Newton in the email initially stated that he understood that the matters were not easy for the Claimant to handle before then setting out some parameters within which the Claimant might deal with personal calls. We considered that it was a reasonable response to send in the circumstances; Mr Newton was not saying that the Claimant was not to deal with personal calls during working hours, he was simply setting out possible ways of managing such calls with the minimum of disruption.

[245]We did not consider that there was any evidence to support the Claimant’s contention that Ms Minchinton became angry with the Claimant on 10 May 2022. As we have noted, Ms Minchinton followed up her telephone call with the Claimant on 10 May 2022 with an email summarising their exchange. The Claimant replied to that some forty minutes later, and made no reference to any anger evinced by Ms Minchinton during the call, or indeed to any assertion of lack of civility on her part.

[246]As we have noted, Ms Minchinton did assert that the Claimant had made a veiled threat against the Respondent. She also did copy her email to Mr Newton.

[247]Again, we saw little to support the Claimant’s contention that these matters were related to disability. Beyond that however, we saw nothing unreasonable in Ms Minchinton registering her concern about the Claimant’s reference, to a manager in one of her earlier jobs backing himself into a corner and getting into a lot of trouble because of the way he dealt with the Claimant’s mental health, as something of a threat.

[248]With regard to the assertion that Ms Minchinton breached the confidentiality of the discussion and incorrectly represented the conversation, we again noted that no reference to those matters was made by the Claimant in her email in response later on 10 May 2022. We further noted that Ms Minchinton in her unchallenged witness statement stated that at no point did the Claimant ask her to keep the conversation confidential. In any event, we did not consider that it would have been unreasonable for Ms Minchinton to have copied the email to Mr Newton, as the owner of the business, and with whom, effectively, the buck stopped, to ensure that he was fully aware of the discussion that had taken place.

[249]Whilst again we saw little to indicate that Ms Minchinton’s actions were related to disability, we in any event saw nothing to lead us to the conclusion that Ms Minchinton’s actions violated the Claimant’s dignity or created the offending environment.

[250]Mr Newton did indeed inform certain staff members on 10 May 2022 that the Claimant had had a panic attack the day before. As we have noted, Ms Buckley in her witness statement noted that the call had been to confidentially share that the Claimant had become unwell the day before so that she was in a position to support her if she became ill at times when Mr Newton or Ms Minchinton were not in the office. No evidence was put before us about the information given to the other staff member, but we saw nothing to suggest that the information would not have been passed on in a similar manner.

[251]We also noted that the Claimant, in an email to Mr Newton on 10 May 2022, had stated that if her behaviour was of concern then he was welcome to share with colleagues that she was suffering a mental health episode and not to worry.

[252]Whilst the reference to a panic attack and the potential connection with the Claimant’s mental health conditions led us to conclude that this conduct was related to the Claimant’s disability, we saw nothing to suggest that it had the effect of violating the Claimant’s dignity. It did not in fact seem that the Claimant herself perceived it as having had that effect at the time, in view of her invitation to Mr Newton to refer to the Claimant suffering a mental health episode, but we saw nothing that would have led us subjectively to conclude that it was reasonable to consider that the conduct would have had that effect.

[253]The first element of this allegation did not happen quite in the way asserted by the Claimant. She asserted that Mr Newton sent her an email advising that “she” had to figure out a way to manage her panic attacks, whereas Mr Newton’s email actually said, “We need to manage your panic attacks and the impact they have”. The second element of this allegation did broadly occur as outlined by the Claimant, in that Mr Newton, in his email, did reference the amount of working time taken up by other team members in managing and supporting the Claimant on 10 May 2022.

[254]We were satisfied, certainly with regard to the second element of this allegation, that it could reasonably be said that the Claimant found the conduct unwanted, and again we could see how the Claimant’s perception of the email was that it violated her dignity. However, we did not consider taking into account all the circumstances, that it would be reasonable to conclude that the conduct had the effect of violating the Claimant’s dignity.

[255]Again, Mr Newton’s email was not sent in isolation, but was sent in response to the Claimant’s email of the evening before in which she had said, “Apologies if I alarmed you earlier, and thank you for sending [the office manager] in to check on me. I had quite a major panic attack. I’m going to go home now, but I’ll be in tomorrow to get the focus group stuff out”. Mr Newton did then respond indicating that any panic attacks needed to be managed as did their impact. He then went on to outline the broad impact that the panic attack the day before had had on the work of Mr Newton, Ms Minchinton and the office manager.

[256]In our view however, whilst the matter could have been referred to a little less directly, it was nevertheless an attempt by Mr Newton to let the Claimant know that incidents such as the one on 10 May 2022 had a broader impact. He then spent the bulk of the email dealing with “business as usual” matters. We did not consider that he acted unreasonably in that regard, or in a way which violated the Claimant’s dignity.

[257]We discerned that the “instructions” to which the Claimant referred in this allegation were those set out in the Claimant’s Wellness to Work document produced at the end of March or early April 2022. There, in response to a question as to what the Respondent should do if the Claimant’s health deteriorated whilst at work, the Claimant described the most likely scenario as being a panic attack and noted, “These can be dealt with with a diazepam from my handbag”.

[258]On 10 May 2022, having observed the Claimant going into the female toilet, Mr Newton asked the office manager to go in there to see her. Following that, the Claimant asked the office manager to get her handbag which enabled the Claimant to take medication and subsequently leave.

[259]We did not consider that the Claimant’s indication in her Wellness to Work document could be said to amount to an “instruction”. Regardless of that, the only failure to comply with the instruction was that Mr Newton did not directly tell the office manager to take the handbag to the Claimant, with instead the Claimant having to ask the office manager to get it.

[260]We did not consider that Mr Newton could reasonably have understood that the Claimant was undergoing a panic attack at that time. He had observed her crying at her desk and then observed that she had gone to the toilets. Even if he had been in a position to assess that the Claimant was undergoing a panic attack, the core element of the reaction was to send someone to go and check on her, which is what happened. We did not consider that the fact that the Claimant then had to ask the person to go and get her handbag materially breached any “instruction” in any event.

[261]Whilst this incident clearly related to the Claimant’s disability, we did not consider that Mr Newton’s actions could be said to have amounted to unwanted conduct, or, even if they had, that the conduct could reasonably be said to have had the effect of violating the Claimant’s dignity.

[262]Mr Newton did, in an email to the Claimant on 11 May 2022, note that he had asked Ms Minchinton, given that he was travelling, to “check in” with the Claimant at 11.00am and 2.00pm. He did not state that Ms Minchinton would “check on” the Claimant as alleged.

[263]This was in the context of the Claimant having left the office the afternoon before due to a panic attack, and where the work Mr Newton was asking the Claimant to do was time critical. Mr Newton left the work with the Claimant to do but, quite understandably in our view, asked Ms Minchinton who was going to be in the office, to check that the work was on track. He then provided instructions to Ms Minchinton that should there be any concerns that the work would not be completed then she should allocate the task to others.

[264]We consider that the Claimant, presuming that she would have felt herself well enough and capable enough of completing the task without supervision, would have considered the content of that email to have been unwanted. We were also satisfied, bearing in mind that the Claimant had been absent due to a panic attack the day before, that there was a connection of the email with the Claimant’s disability.

[265]However, we saw nothing to lead us to conclude that the sending of the email could reasonably be said to have had the effect of violating the Claimant’s dignity. As we have noted, the work required to be done was time critical, the Claimant had been unwell the day before and had left the office, and Mr Newton was sending the email at 5.54am, at a point where he could in no way be certain that the Claimant would be well enough to work. He then put in place, what we considered to be relatively light touch, arrangements to ensure that the work was undertaken, and for alternative arrangements to take effect if it transpired that it was not. Those were reasonable management steps for Mr Newton to take in the circumstances and we did not consider that it could reasonably be said that his email had the effect of violating the Claimant’s dignity.

[266]The Claimant, in evidence before us, indicated that the discussions over the alleged conflicting instructions had been made on an internal messaging app, with the messages having not been retained. The Claimant in her own witness statement stated that she did not remember the details of the conversation exactly and Ms Minchinton made no reference to the matters in her witness statement, other than to say that she had made the regular calls asked of her by Mr Newton, offered appropriate support, and had been pleased that at the end of the day the Claimant had completed the tasks.

[267]On balance, we did not consider that there was sufficient evidence to lead us to conclude that this allegation had happened in fact.

[268]As we have noted, Mr Newton did send an email to the Claimant on 10 May 2022 arranging a meeting on 12 May 2022. That email did not however reference “the situation” nor did it reference the Claimant’s continued employment. The section of Mr Newton’s email relating to the proposed meeting was as follows: “Can we meet on Thursday at 3.00pm to update where we are on this, discuss what support/adaptions you need to stop things like this falling through the net – I think you need to implement any support systems such as a list of tasks – rather than Rachal or I have to chase – and to look at the Occ Health referral and probationary review”. The allegation was not therefore as asserted by the Claimant.

[269]Regardless of that, we did not consider that indicating that a meeting would be held to discuss the Claimant’s almost complete inability to work on 9 May 2022, was in any sense unreasonable. Similarly, the reference to probationary review, which was the closest Mr Newton’s email came to any reference to “continued employment”, noted that that probationary review needed to be held and therefore it was not unreasonable to raise it as a point of discussion.

[270]The Claimant may have felt that the arrangement of the meeting and Mr Newton’s email generally was unwanted, and, bearing in mind it related to the Claimant’s calls the day before it could be said to have had some indirect relation to her disability. However, we did not consider that the sending of the email or its content objectively involved conduct which could reasonably be said to have violated the Claimant’s dignity.

[271]During the course of the hearing we raised with the Claimant the question of how the booking of an Occupational Health appointment could be an act of unwanted conduct. She clarified that it was the booking of the appointment at the particular time that was of concern to her, rather than at an earlier stage.

[272]In that regard, we noted that the referral to Occupational Health had in fact been made by Ms Minchinton on 4 May 2022, after the meeting on 29 March 2022. We also noted that there had been some reference to obtaining Occupational Health input in October 2021, but the Claimant had obtained treatment from the NHS at the time and the need for Occupational Health input therefore went away at that time. Ultimately the need for such advice resurfaced at the meeting on 29 March 2022 and we did not consider that the arrangement of an Occupational Health appointment at that time, whether looked at in isolation or in comparison to whether it should have been arranged earlier, amounted to unwanted conduct. It was a reasonable management step for the Respondent to take at that time.

[273]As we have noted, a meeting did take place on 12 May 2022 between the Claimant, Mr Newton and Ms Minchinton. Notes of that meeting were in the bundle and Ms Minchinton described it at some length in her witness statement.

[274]Whilst issues of concern held by the Respondent about the Claimant’s performance were discussed during the meeting in some detail, we did not consider that it could be described as a “character assassination”. The concerns on the Respondent’s part were raised, and the Claimant was given an opportunity to respond. The concerns were raised quite pointedly, with Mr Newton confirming that if the Claimant had not had a disability for which the potential to make adjustments and allowances needed to be considered, then she would already have failed her probation and her contract would have been terminated. Mr Newton also identified that the Claimant’s productivity was not at a level that was sustainable. We noted however that that was in a small company with turnover only in the region of some £300,000 per annum, and where the ability of the Respondent to bill for the time spent by its client facing staff was critical.

[275]We were satisfied that the Claimant would have found the comments made in the meeting unwanted, and, to the extent that any comments relating to the Claimant’s performance might have been influenced by the Claimant’s conditions, were satisfied that at least some of them could be said to have related to the Claimant’s disability. Furthermore, as we have already indicated, we could understand that the Claimant might have perceived that the content of the meeting violated her dignity.

[276]However, in circumstances where concerns over the Claimant’s performance had existed for some time, and where the hoped for improvements in the Claimant’s performance and productivity arising from her changed role had not come to fruition, we considered that it was reasonable for the Respondent to raise these concerns in an open and frank manner with the Claimant in a meeting. Objectively, we did not consider that it was reasonable to conclude that the holding of the meeting and its content had the effect of violating the Claimant’s dignity.

[277]This allegation reflected, in our view, what we have described as the “disconnect” between the Claimant and Mr Newton as to how particular projects should be progressed. The email exchanges note that Mr Newton had directed the Claimant to undertake work in a particular manner and that the Claimant had pushed back on that suggesting that a different approach should be undertaken. Ultimately, Mr Newton then insisted that his instructions be carried out.

[278]Whilst we could see that the Claimant may have perceived Mr Newton’s stance as unwanted, we saw nothing to connect the difference of view with the Claimant’s disability. In any event, we saw nothing to lead us to conclude objectively that Mr Newton’s conduct could reasonably have had the effect of violating the Claimant’s dignity.

[279]As a matter of fact, the Claimant’s desk was moved during her sick leave and she moved from being outside Mr Newton’s office in the 21 Cathedral Road area into the open plan area in the 19 Cathedral Road area. We did not however get any sense that this was in any sense unwanted. The Claimant’s line management was moved to Ms Minchinton and it would have been entirely reasonable for her to move nearer to Ms Minchinton. The move also had the effect of moving the Claimant away from the male employees in the business and any prospect of her hearing raised male voices.

[280]Had we considered that there were elements of unwanted conduct in the office move, we saw nothing to suggest that that would have been related to the Claimant’s disability. Further, we could see nothing which pointed to the desk move objectively having the effect of violating the Claimant’s dignity.

[281]The Claimant did not clarify in her evidence as to what she contended were the unreasonable assessments and targets during her phased return. The Occupational Health adviser suggested a phased return in terms of the hours worked by the Claimant. She then remained subject to her 75% billable hours target, but that related to the hours that she actually worked, so the total amount of hours required to be billed by the Claimant reduced by reference to the total hours she worked. There was no suggestion from the Occupational Health adviser of any adjustment other than the phasing of the Claimant’s return to work.

[282]We saw nothing in this regard to lead us to conclude that any unwanted conduct had occurred. The Respondent appeared to have dealt with the Claimant’s phased return quite reasonably. Indeed, the Claimant in her witness evidence noted that, she “worked fine with Ms Minchinton”, and that they “worked closely and carefully and [Ms Minchinton] was aware not to overload me”.

[283]The photographic and documentary evidence, together with the unchallenged witness evidence of Ms Minchinton and Ms Buckley did not support the Claimant’s allegation that there was any rolling of eyes, huffing, or speaking over the Claimant. The evidence also did not support the Claimant’s allegation that Mr Newton ordered drinks for everyone except the Claimant and that the event ended with everyone being invited to Mr Newton’s house except the Claimant. This allegation was simply not made out in fact.

[284]As we have noted above, the Claimant did receive an enquiry regarding the potential finding of a rare books acquisition, and both Mr Newton and Ms Minchinton both confirmed in their evidence that the issue was laughed about when discussed the following day. However, there was nothing to support the Claimant’s allegation that she was “laughed at”. Ms Minchinton’s witness statement recorded that she remembered “that everyone was laughing about it as it was so “left field”, including the Claimant”. Again therefore we did not consider that this allegation was made out in fact.

[285]Only indirect, second-hand, evidence was adduced relating to this allegation, the Claimant confirming in her witness statement that the office manager had told her that Mr Newton had mocked her and pulled faces about her ankle injuries. The office manager was not called and therefore no direct, first-hand evidence was put before us. We were not satisfied therefore that there was sufficient evidence for us to conclude that this allegation was made out in fact.

[286]In any event, we noted that the allegation related to the Claimant’s ankle injuries, which we presumed were relatively quickly resolved and which did not therefore involve any issue relating to disability.

[287]The Claimant did not provide any specific evidence as to which folders and documents had been moved or deleted or from which document or system her name had been removed. She made no reference to this matter in her witness statement and nor did she put any such matter to Mr Newton in crossexamination. As we have noted, Ms Buckley did refer to work being undertaken in July 2022 regarding the Respondent’s digital file storage systems, and we considered that it would not have been surprising that the Claimant may then have not been able to find matters subsequent to that. Again, we were not satisfied that this allegation was made out in fact. 8. Victimisation

[288]We noted that the Claimant contended that she had done a protected act by reference to her conversation with Ms Minchinton on 10 May 2022 and the “veiled threat”. We noted however, that the Claimant, in the email exchange with Ms Minchinton around that matter had stated expressly that she did not feel discriminated against. We did not consider therefore that the Claimant had made an allegation that the Respondent had contravened the Equality Act. However, we noted that Section 27(1) of the Equality Act indicates that victimisation can arise either because the Claimant does a protected act or because the Respondent believes that the Claimant had done, or may do, a protected act.

[289]In our view, the reference by Ms Minchinton, in her email to the Claimant summarising their telephone conversation on 10 May 2022, to there having been a “veiled threat” indicated that she, and by extension the Respondent, believed that the Claimant had done a protected act in the form of making an allegation, albeit indirectly, that the Respondent had contravened the Act. We were therefore satisfied that the first matter to be assessed with regard to a victimisation claim, i.e. whether there had been a protected act or whether the Respondent had believed that the Claimant had done or may do a protected act, was made out.

[290]We moved then to consider whether the Claimant had been subjected to any detriment by the Respondent because of that belief. In that regard, we noted that the detrimental acts contended were those set out as acts of unwanted conduct at issues 7.1.17, 7.1.18 and 7.1.19.

[291]Our conclusions in relation to those matters as alleged acts of unwanted conduct for the purposes of the harassment claim, were that allegation 7.1.18 and 7.1.19 were not made out in fact and that allegation 7.1.17, whilst made out in fact, could not be said to have amounted to unwanted conduct.

[292]Applying our analysis in relation to those matters in relation to the question of whether they amounted to detriments for the Claimant’s victimisation claim, we concluded that they could not. They either did not take place in fact or could not reasonably be considered to have amounted to a detriment. In any event, we saw nothing to connect the matters alleged, which were said to have taken place in mid-July 2022, to any perceived protected act on 10 May 10. Unauthorised deductions

[293]The Claimant’s allegation of unauthorised deductions from wages related to the fact that she was paid SSP in relation to the entirety of her sickness absence, where she asserted that she should have been paid company sick pay. The Respondent accepted that, notwithstanding that it was not expressly included in the Claimant’s particulars of employment, that there was a contractual term which provided that the Claimant would receive SSP in relation to sickness absences whilst in probation, and would receive full company sick pay for periods of sickness absence after probation had been completed, up to a maximum of two months’ full pay and two months’ half pay.

[294]The crux of this allegation therefore revolved around the question of whether the Claimant completed her probationary period or not. We addressed this matter in some detail above in relation to the Claimant’s breach of contract claim and concluded that the probationary period had not been completed prior to the termination of the Claimant’s employment. Consequently, all payments of sick pay to her during the course of her employment were properly paid at the rate of SSP, and there was therefore no underpayment. Authorised for issue by