Ms J Davies v City and County of Swansea and The Governing Body of Olchfa Comprehensive School: 1601688/2023

EMPLOYMENT TRIBUNALS

Case No 1601688/2023

Between

Ms J DaviesClaimant

City and County of Swansea and The Governing Body of Olchfa Comprehensive SchoolRespondent

Before

Employment Judge R Harfield

Members

Mrs Jacqueline Beard

Mr Peter Charles

Miss Louise Mankau (instructed by Counsel) for claimant

Mr James Lewis-Bale (instructed by Counsel) for respondent

Ms Iqbal (instructed by Counsel) for claimant

Mr Lewis-Bale (instructed by Counsel) for respondent

Date 23 September 2024

JUDGMENT

FOR THE TRIBUNAL OFFICE Mr N Roche Case No: 1601688/2023 Notes Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision.

REASONS

[1]By her Claim Form presented to the Tribunal on the 8th August 2023, the Claimant, Mrs Justine Davies, brings the following claims against The Council of the City and County of Swansea (“the First Respondent”) and the Governing Body of Olchfa Comprehensive School (“the Second Respondent”):1.1 a claim of constructive unfair dismissal; and

1.2 a claim alleging failure to comply with a duty to make reasonable adjustments under sections 20 and 21 of the Equality Act 2010. Case No. 1601688/2023 Page 3 of 29

[2]At the time of the events with which the Tribunal is concerned, the Claimant was employed as a Mathematics Teacher at Olchfa Comprehensive School. The First Respondent is the local education authority in respect of the school and the Second Respondent is the governing body of the school with responsibility for its governance. The Head Teacher at the material time was Mr Hugh Davies who was engaged under a .75 fractional contract. The Deputy Head Teacher and the Acting Head Teacher when Mr Davies was absent from the school under the terms of his fractional contract was Mr Matt Salmon. The Head of Mathematics at the school, and the Claimant’s line manager, was Ms Pat Stevens. Also employed at the school as a member of the management staff was a Business and Finance Director, Mr Simon Roberts.

The background

[3]On the 1st June 2022 the Claimant was certified by her General Practitioner as being not fit for work due to anxiety. Though the initial medical certificate indicated that the Claimant would not be fit for work for 1 month, the Claimant’s anxiety persisted and her sickness absence became long term.

[4]The Claimant informed the school at the start of her sickness absence, that she would not be accessing work emails during her absence due to the adverse effect that work emails might have upon her mental health.

[5]By the autumn of 2022 the Claimant’s mental health showed signs of improvement and so she decided to explore available therapies through her General Practitioner with a view to attempting a return to work. She subsequently embarked upon a course of cognitive behavioural therapy, which she found to be beneficial.

[6]On the 6th October 2022, Mr Roberts sent an email to the Claimant giving her details of an occupational health appointment that had been fixed for the 11th November 2022. Unfortunately, that email was sent to the Claimant’s work email address and so she did not Case No. 1601688/2023 Page 4 of 29 pick it up. Mr Robert’s referral letter to the occupational health company was not to be found in the hearing bundle but a number of letters from the company had made their way into the bundle. There was a letter dated the 6th October 2022 giving details of the appointment that had been fixed for the 11th November 2022 and a letter dated the 11th November 2022 in which it is stated that telephone contact had been made by the occupational health company with the Claimant on that day and the company was informed by the Claimant that she had not received notice of the appointment. The Claimant informed the occupational health company that she would like the appointment to be re-scheduled for a future date and that is what happened.

[7]The new date fixed for the occupational health appointment was the 17th January 2023 and this time the Claimant received proper notice of that appointment.

[8]On the 17th January 2023 Dr Peter Tamony, an occupational health physician, spoke to the Claimant over the telephone and he subsequently prepared a report that was to be found at pages 149 to 151 in the bundle.

[9]The report states as follows: Ms Davies has been working as a maths teacher since 2014. She was referred to occupational health in December 2022 for review of a long-term absence since June 2022. Background Ms Davies was signed off work by her GP with anxiety. Ms Davies reports that her symptoms had progressively built up over the past few years since the beginning of the covid lockdown period. Prior to this Ms Davies says she was well and had not suffered from any mental health conditions. She reports concerns that she was not adequately supported by the school through this period which led to increased anxiety. Anxiety levels continued to rise when face to face teaching returned, as Ms Davies felt covid precautions at school were insufficient. During this time Ms Davies felt increasingly stressed and isolated. This affected her sleep and she found it difficult to go out. This Case No. 1601688/2023 Page 5 of 29 came to a head in June 2022 when she felt too overwhelmed to return to work. Symptoms included feeling shakey nauseated, vomiting, and being unable to engage in things she previously enjoyed. Ms Davies sought appropriate help from her GP. Current situation and Function Ms Davies remains off work. She is engaging with self-care measures and is due to start a course of CBT. She remains under regular review from her GP. Ms Davies reports some improvement in her symptoms since December. She is now finding it easier to go outside and is starting to resume day to day activities that she was unable to do when more unwell last summer. She does however still experience symptoms including nausea and panicking, these tend to be worse when thinking about work. Opinion and recommendations In my opinion, Ms Davies is unfit to return to work at this time and is unlikely to return in the next 8 weeks, maybe longer. Once she is fit to return to work, I have suggested she has a phased return. She would not necessarily require a further occupational health assessment at that time, but I would be more than happy to review especially if there have been any significant changes in her condition or if she has not returned within 6 months. Is there an underlying medical condition? Ms Davies has an underlying anxiety disorder; this is a mental health condition for which Ms Davies is under the care of her GP. Have work/organisational factors contributed to the absence Ms Davies reports that the situation at work during and following lockdown led to a perceived lack of support that may have exacerbated her symptoms of anxiety. Is the employee likely to be considered disabled under the relevant legislation? In my opinion, it is likely that Ms Davies is covered by the relevant equality legislation. This is owing to the long-term nature of her condition and substantial impact on her day-to-day life. However, as you will be aware ultimately this is not a medical decision. What adjustments does the employee require to facilitate a return to work? In my opinion, Ms Davies is not yet ready to return to work. When she is ready, I would suggest a phased return over 4 weeks, gradually increasing the hours as tolerated. She should be supported to attend medical appointments, including CBT once she has returned. You may wish to consider amended sickness absence triggers once Justine returns to work. Response to treatment is variable so there is the possibility of higher rates of absence related to anxiety in the future. Is the employee fit to attend meetings or participate in dialogue with the employer? I do not feel Ms Davies is ready to attend meetings face to face, as this is likely to exacerbate her anxiety at this time. This may change over the next 8-12 weeks. She is able to communicate via email until Case No. 1601688/2023 Page 6 of 29 such time as her symptoms have improved sufficiently to attend meetings. When can the employee return to work? I do not envisage Ms Davies returning to work within the next 8 weeks. Should CBT be effective for Ms Davies and her symptoms continue to improve at the same rate then 8-12 weeks is a more realistic figure. However, recovery from anxiety disorders can be unpredictable, so this is far from guaranteed.

Background

[10]Following the occupational report, the Claimant’s mental health continued to improve and so she had a discussion with her General Practitioner on the 9th March 2023 about the possibility of her returning to work later that month.

[11]On the 9th March 2023, the General Practitioner issued a certificate that stated that the Claimant continued to be not fit for work due to anxiety but added: “with a possibility of returning on a phased return during week commencing 27th March 2023.” The Claimant sent that certificate to the school and the following day, the 10th March 2023, Mr Roberts sent the following email to the Claimant: Thank you for sending in the fit paper dated 9th March 2023. I’m just looking to clarify the comments on it, so that we can make the necessary arrangements this end – am I right in thinking you would like to return on 27th March 2023 on a phased return? If that’s the case, then that is obviously great to hear, but we will need to meet prior to that date to discuss and agree what that phased return will look like, how long it will last, any reasonable adjustments we might need to consider etc. If you can come back to me to confirm my interpretation is correct, or not, and then if necessary, we can get a date in the diary to meet.

[12]Mr Roberts did not receive a response from the Claimant to that email. The reason for that is unclear. The evidence did not make clear whether the email had been sent to the Claimant’s work email address, in which case she would not have seen or read it, or whether there was some other reason as to why the Claimant did not respond. In any event, Mr Roberts did not receive the confirmation he had been seeking. It was not confirmed that the Claimant would like to return to work on the 27th March 2023. Case No. 1601688/2023 Page 7 of 29

[13]On the 15th March 2023, an informal meeting took place between Mr Roberts and the Claimant’s trade union representative, Mr Ian Stewart. Mr Stewart did not give evidence to the Tribunal and so the only evidence regarding that meeting came from Mr Roberts. It was his evidence that the matters that were discussed between himself and Mr Stewart at their meeting on the 15th March 2023 were the same as were set out in an email from Mr Stewart to Mr Roberts the following day, the 16th March 2023. It follows that Mr Roberts was informed on the 15th March 2023 about the Claimant’s proposals as to her phased return to work. She proposed that she return to work for the whole teaching day on Friday, the 31st March 2023 (which was the day before the schools’ Easter break) and then 2 days of teaching on the Monday and Friday in the first week back after the Easter break and then 3 days of teaching on the Monday, Wednesday and Friday the week after. Thereafter the Claimant was proposing that she return to her full teaching duties.

[14]Though his evidence to the Tribunal, in his witness statement and his oral evidence, was that he knew that the Claimant’s proposals would not work, Mr Roberts did not impart that information to Mr Stewart at their meeting on the 15th March 2023 or in response to the detailed email, setting out the Claimant’s position in her respect of her phased return, that was sent by Mr Stewart to Mr Roberts on the 16th March 2023. Mr Roberts’ explanation for withholding that information from Mr Stewart was that the decision on how the Claimant’s phased return to work was to be implemented was not his to make.

[15]Mr Stewart’s email of the 16th March 2023 to Mr Roberts was to be found at pages 154 to 155 in the bundle. In addition to setting out in writing the Claimant’s proposal as to her phased return to work, Mr Stewart drew the following matters to Mr Roberts’ attention:15.1 the importance that there be no surprises for the Claimant at the forthcoming meeting regarding the phased return due to the Claimant’s anxiety levels;

15.2 the resources and supplies that the Claimant required to make her return to work easier; Case No. 1601688/2023 Page 8 of 29

15.3 the merits of appointing an individual to keep in touch with the Claimant regarding any issues that arose during her phased return;

15.4 that the Claimant was not feeling anxious about her interactions with the school pupils but remained concerned about miscommunications with management regarding her role and performance;

15.5 that it would be beneficial to the Claimant to be spared the task of trawling through her old work emails received during the period from June 2022 to March 2023.

[16]Mr Stewart ended his email by stating that he would be happy to pass things on to the Claimant to avoid any surprises at the forthcoming meeting.

[17]Upon receipt of Mr Stewart’s email, Ms Stevens was given the task on the 16th March 2023 by Mr Salmon of putting together a return-to-work schedule for the Claimant. Her written evidence about her task was as follows: Matt had stated that the school’s aim would be for Justine to fulfil approximately 50% of her teaching commitment/timetable in the first week of the phased return in accordance with the school’s usual arrangements for phased returns to work, with a gradual increase thereafter. That sounded normal to me. For example, I had a period of absence in 2013 and my phased return followed this type of pattern.

[18]Mr Salmon’s recollection as to the task that he gave Ms Stevens was set out in paragraph 22 of his witness statement: … Pat looked at the timetables and came up with a proposal which would accommodate a 4-week phased return with minimal disruption to the pupils.

[19]It was accepted by Ms Stevens and Mr Salmon that she had not been given the occupational health report dated the 17th January 2023 or Mr Stewart’s email dated the 16th March 2023 setting out Case No. 1601688/2023 Page 9 of 29 the Claimant’s proposal as to her phased return. It follows that Ms Stevens knew nothing whatsoever about the contents of the occupational health report or the Claimant’s proposals for her phased return when she was given the task by Mr Salmon of coming up with a plan for the Claimant’s phased return to work.

[20]The first thing that Ms Stevens did when she was given the task of coming up with a plan for the Claimant’s phased return to work was to print off the Claimant’s teaching timetable for a 4 week period commencing on the 27th March 2023. The first week fell at the end of the spring term and the remaining three weeks fell at the start of the summer term. In between those terms was the Easter break for two weeks.

[21]Having printed off the Claimant’s teaching timetable for those 4 weeks, Ms Stevens set out about marking the timetable, using a yellow highlighter pen, with the reduced number of classes that the Claimant would be responsible for teaching over the 4 week period.

[22]In the first week, the Claimant would teach three classes (7X3, 8Y1 and 9Y3) as follows:22.1 Monday: 2 classes in the morning;

22.2 Tuesday: 3 classes in the afternoon;

22.3 Wednesday: 2 classes (one in the morning and one in the afternoon);

22.4 Thursday: one class in the morning;

22.5 Friday: two classes in the morning. That pattern represented approximately 45% of the Claimant’s normal teaching commitments for that week.

[23]In the second week (at the start of the summer term), the Claimant would teach the same classes as in the first week plus an additional class: namely, 8X6. The pattern was stated by Ms Stevens to be as follows:23.1 Monday: no classes; Case No. 1601688/2023 Page 10 of 29

23.2 Tuesday: 4 classes (one in the morning and 3 in the afternoon);

23.3 Wednesday: 3 classes (one in the morning and two in the afternoon);

23.4 Thursday: two classes in the afternoon;

23.5 Friday: four classes (3 in the morning and 1 in the afternoon). That pattern represented approximately 59% of the Claimant’s normal teaching commitments for that week.

[24]Class 8X6 was a split class which meant that the teaching of that class was split between the Claimant and another teaching colleague.

[25]In the third week, the Claimant would teach the same classes as in the second week plus an additional class: namely, 7Y4. The pattern was stated by Ms Stevens to be as follows:25.1 Monday: 2 classes in the morning;

25.2 Tuesday: 4 classes (1 in the morning and 3 in the afternoon);

25.3 Wednesday: 3 classes (2 in the morning and one in the afternoon);

25.4 Thursday: 2 classes (1 in the morning and 1 in the afternoon);

25.5 Friday: 3 classes (2 in the morning and 1 in the afternoon). That pattern represented approximately 64% of the Claimant’s normal teaching commitments for that week.

[26]In the fourth week, it was proposed by Ms Stevens that the Claimant return to her full teaching commitment. Case No. 1601688/2023 Page 11 of 29

[27]The rationale for Ms Stevens’ plan for the phased return was set out in paragraphs 17 to 25 in her witness statement. In summary, she took the following matters into account:27.1 she structured the lessons in blocks so that the Claimant could come into school late and go home early;

27.2 she designed the timetable so that the change of teacher would be minimised for the pupils in each class. Under Ms Stevens’ scheme, the Claimant would return to teaching a particular class on a particular day and then would continue teaching that class over the next few weeks. Ms Stevens was of the view that that provided consistency and minimal disruption to the pupils and avoided the need for handovers, which would be needed if a different teacher was to pick up a particular class after the Claimant.

27.3 The Claimant would resume teaching the GCSE classes in the fourth week so as to minimise disruption for the pupils in those classes;

27.4 The timetable was designed so that the Claimant would resume teaching the higher sets of pupils first, which the Respondents regarded as the more manageable pupils.

[28]On the 17th March 2023, the Personal Assistant to the Head Teacher, Mr Davies, sent an email to the Claimant to inform her that the meeting to discuss arrangements for her phased return to work would take place at 9.15am on Thursday, the 23rd March 2023 and that she could expect Mr Hugh Davies, Mr Simon Roberts and Mr Ian Stewart to be in attendance at the meeting.

[29]At some point between the 16th March 2023 and the 22nd March 2023, there was a meeting, and possibly two meetings, between Mr Salmon, Mr Roberts and Ms Stevens for the purposes of discussing the planned phased return to work that Ms Stevens had drafted. In their written statements, Mr Salmon and Ms Stevens stated that they had one meeting to discuss Ms Stevens’ proposed timetable for the phased return and in his written statement Mr Roberts recalled that there had been two such meetings. Case No. 1601688/2023 Page 12 of 29

[30]On the 22nd March 2023, at 4.54pm, Ms Stevens emailed her timetables for the proposed phased return to Mr Roberts. At 8.12pm that same day, Mr Roberts sent Ms Stevens’ proposed timetable to Mr Stewart and informed Mr Stewart that Ms Salmon would be attending the meeting in place of Mr Hugh Davies.

[31]The meeting to discuss the phased return to work took place on the following day, the 23rd March 2023, at 9.15am. In attendance were Mr Salmon, Mr Roberts, Mr Stewart, the Claimant and Ms Gillespie as notetaker. The Respondents’ minutes of the meeting are set out at page 172 of the bundle. They consist of 19 short bullet points. Regrettably, the notes do not contain the detail that the Tribunal would expect of such an important meeting. A particular inadequacy is that the notes do not make clear who spoke and what it was that they said. Instead the notes merely consist of a very basic summary of the matters that were discussed at the meeting. It is unfortunate that the notes have had to be supplemented by what the attendees are able to remember of the meeting, which, given the fallibility of human memory, the minutes are supposed to avoid.

[32]Though there are factual disputes relating to certain parts of the meeting, it was clear from Mr Salmon’s evidence that Mr Stewart explained clearly, on behalf of the Claimant, why she proposed a phased return that would give her days off work in between gradually increasing teaching days and that it was made clear by Mr Salmon to Mr Stewart and the Claimant that her proposals were unworkable and would not be countenanced by the school. It was agreed by Mr Salmon in his oral evidence that the meeting reached a stalemate or impasse and at that point the Claimant left the meeting.

[33]The meeting ended with no agreement having been reached as to the arrangements for the Claimant’s phased return to work. The school had made clear that the Claimant’s proposals would not be accepted and the only proposal from the school, at the time when the meeting came to an end, was the proposal that had been drawn up by Ms Stevens. Case No. 1601688/2023 Page 13 of 29

[34]Though we were not taken to them during the hearing, the Tribunal noted that at page 175 of the hearing bundle were text messages that appeared to have passed between the Claimant and Mr Stewart after the meeting. Messages that appear to have been sent by the Claimant contained the following passages: Hi Ian. Was anything else said after I left? I still can’t believe they wouldn’t budge. Can you believe Matt didn’t want to take you up on your suggestion of consulting OH? I really don’t understand any of it but then again I never could. Thanks. [sent on the 23rd March at 3.18pm] Hi Ian. Thanks again for yesterday. Unfortunately, I am still going to resign. Who do I get help from to draft my resignation letter? I also want advice about constructive dismissal, please. Who do I turn to? I don’t feel I was treated fairly at all yesterday – from not supporting my suggestion of a meeting downstairs to minimise anxiety before the meeting (so instead I was in the corridor like a naughty pupil) to brushing off suggestions of engaging with OH about terms of the phased return to questioning my readiness to return to work because I left a meeting I thought had come to an end. Any advice, as usual, would be gratefully received. [sent on the 24th March 2023 at 9.41am] Hi Ian, Just to clarify something. You did suggest to Matt about seeking advice from OH and he did reject it, didn’t he? [sent on 24th March 2023 at 11.21am]

[35]On the 30th March 2023 the Claimant resigned from her employment at the school by way of an email sent at 2.05 in the afternoon. The resignation letter stated as follows: To Mr H. Davies, I could not understand the reasoning not to support my phased return to work. The OH report had stated I felt unsupported; so I was hopeful. I have worked hard to combat my anxiety and I was hoping the school would meet me halfway. I had asked for the meeting to be on the ground floor to minimise anxiety as I thought I would be anxious enough about the meeting but this was not accommodated and the meeting took place upstairs in the management corridor. Some things were agreed but I feel these were administrative issues that should already be in place, e.g. policies. OH stated I should have a phased return over four weeks, building hours as tolerated. During the assessment, they suggested one day on week one, two days for week two, three on week three and four on week four. With this in mind, I thought carefully about my return to cause minimal disruption and came up with a proposal that would cover a phased return starting the last Case No. 1601688/2023 Page 14 of 29 day of term (one where I would meet five of my six classes) and then over two weeks after Easter. These two weeks would be the main disruption, forming my phased return and I feel it was a reasonable adjustment, especially after suggesting the school choose which full days I attend. Olchfa’s response of me attending every day from the beginning on a part time basis was so far removed from my proposal to be unbelievable. It was explained several times last week it was not the amount of teaching time that was a possible cause of anxiety but the number of times a week I had to come into school per week that needed to be built up. I do not believe this was taken into account in a supportive manner. Due to the school’s inflexibility, I therefore feel I have no choice but to resign my position as teacher at Olchfa school. I hereby give notice, as per my contract, and will no longer be employed by Olchfa after the summer term.

[36]The Head Teacher, Mr Davies, accepted the Claimant’s resignation on the 31st March 2023.

[37]The issues in the case were identified and listed in an Order that was made following a Preliminary Hearing before me on the 22nd November 2023.

[38]The Claimant’s disability was not conceded by the Respondents and so a further Preliminary Hearing took place on the 2nd February 2024 at which it was found by the Tribunal that the Claimant was a disabled person, within the meaning of section 6 of the Equality Act 2010, at the material time in March 2023. The Tribunal further found that at the material time the Claimant had a mental impairment in the form of anxiety, which had a substantial adverse effect on her ability to carry out normal day to day activities and that the substantial adverse effect had existed since January 2022. Directions on the law

[39]The Tribunal’s directions on the law were taken from a very helpful note on the law that had been agreed between the parties. I do not propose to recite that note for the purposes of this judgment. The parties’ agreed note of the relevant law remains separately available. Case No. 1601688/2023 Page 15 of 29

[40]In addition, the Tribunal reminded itself of the provisions of sections 20 and 21 and schedule 8 of the Equality Act 2010 and section 98 of the Employment Rights Act 1996.

Evidence

[41]The Tribunal heard oral evidence from the Claimant, Ms Stevens, Mr Salmon and Mr Roberts. In each case, their witness statements stood as their evidence-in-chief and they were cross-examined. In addition, the Tribunal was provided with a hearing bundle that contained 486 pages of material. The Tribunal read the pages within that bundle that it was taken to by the parties and, in addition, page 175 (the text messages sent by the Claimant to Mr Stewart after the meeting on the 23rd March 2023).

Findings of fact

[42]This was a case in which there were not extensive disputes of fact between the parties. The factual background to the case, which I have set out at the start of this judgment, is taken from the facts of the case that are not in dispute between the parties.

[43]Nevertheless there were some factual disputes, and taking them in chronological order, the Tribunal’s findings of fact were as follows.43.1 Mr Salmon, Mr Roberts and Ms Stevens were all of the view that the Claimant was, or had been declared, fit to return to work on the 27th March 2023. The reality, however, is that the Claimant’s General Practitioner, on the 9th March 2023, had stated that there was merely a possibility of the Claimant returning to work, on a phased basis during the week commencing on the 27th March 2023. Understandably, Mr Roberts, in his email to the Claimant dated the 10th March 2023, sought confirmation that the Claimant intended to return to work on the 27th March 2023, on a phased basis, but no such confirmation was ever provided. The Respondents’ witnesses approached the meeting on the 23rd March 2023 on the basis that the Claimant was fit to return to work on the 27th March 2023 but that had not been clearly established. In the Tribunal’s Case No. 1601688/2023 Page 16 of 29 judgment, the Respondents’ witnesses had erroneously jumped to the conclusion that the Claimant was, or had been declared, fit to return to work on the 27th March 2023. That was simply not the case. Mr Roberts had been told by Mr Stewart on the 15th March 2023 that the Claimant’s intended return date was the 31st March 2023, which was repeated in Mr Stewart’s email to Mr Roberts on the 16th March 2023 and at the meeting on the 23rd March 2023. Against that background, it is not clear as to why the Respondents’ witnesses had assumed that the Claimant was fit to return to work on the 27th March 2023. That is not what the General Practitioner had said and not what the Claimant had said. It follows that Ms Stevens’ timetable for the phased return had been built upon a mistaken view as to the date on which the Claimant was, or had been declared, fit to return to work. The date on which the Claimant was going to return to work had not been clearly established before Ms Stevens got to work in preparing her timetable for the phased return.

43.2 There was a factual dispute as to when it had been decided that Mr Salmon would deputise for Mr Hugh Davies at the meeting on the 23rd March 2023. The Tribunal was satisfied, based on Mrs Gillespie’s email dated the 17th March 2023 that as of that date it was intended that Mr Hugh Davies would attend the meeting. Mr Stewart was informed by Mr Roberts in the evening before the meeting that Mr Salmon was to replace Mr Hugh Davies. The Tribunal was unable to make a finding as to the date when it was decided that Mr Salmon would replace Mr Hugh Davies at the meeting, Mr Salmon being unclear on the point in his oral evidence, but that decision must have been taken at some point between the 17th March 2023 and the 22nd March 2023.

43.3 There seemed to be a dispute, arising from Mr Roberts’ evidence, as to when Ms Stevens’ timetable had been prepared. It was Mr Roberts’ evidence that he had received the timetable on the 22nd March 2023 and emailed it to Mr Stewart as soon as he was aware that he had received the email. That oral evidence, however, from Mr Roberts was contradicted by the evidence from Mr Salmon and Ms Stevens and, indeed, by Mr Roberts’ own written evidence in which it was stated that there had been one or two meetings with Ms Stevens between the 16th and 22nd March Case No. 1601688/2023 Page 17 of 29 2023 for the purposes of discussing her timetable. The Tribunal was of the view that the evidence of Mr Salmon and Ms Stevens and the written evidence of Mr Roberts, to the effect that there were discussions regarding Ms Stevens’ proposals to be far more plausible than Mr Roberts’ oral evidence that he only received Ms Stevens’ timetable on the 22nd March 2023, the day before the meeting. The Tribunal’s finding was that Ms Stevens had drafted her timetable at some point between the 16th and 22nd March 2023 and she had discussed the timetable that she had drafted with both Mr Salmon and Mr Roberts during that period. The Tribunal was driven to the conclusion that the Respondents had deliberately delayed sending the timetable to Mr Stewart until the night before the meeting even though Mr Stewart had made it clear to Mr Roberts in his email dated the 16th March 2023 that it would be most unhelpful if there were to be last minute surprises before the meeting.

43.4 There was a dispute as to whether the Claimant spoke at the meeting on the 23rd March 2023. The Tribunal would have expected to have been assisted by the Respondents’ note of the meeting on this point but regrettably that was not the case. Both Mr Salmon and Mr Roberts were adamant that the Claimant did not speak and that Mr Stewart did all the talking on her behalf. The Claimant was adamant that she did speak. In the absence of any assistance from the Respondents’ note of the meeting, this was a difficult factual issue for the Tribunal. The Tribunal, however, was impressed by the clarity from Mr Salmon on the point and accepted his evidence that the Claimant did not speak at the meeting. That is not to say, however, that the Tribunal formed the view that the Claimant had attempted to mislead the Tribunal on this factual issue. The Tribunal accepted that all of the witnesses were doing their best to remember events that had occurred some time ago and the Tribunal was satisfied that the Claimant had misremembered her contribution to the meeting on the 23rd March 2023.

43.5 There was a factual dispute as to whether the Claimant took notes at the meeting on the 23rd March 2023. The Claimant had produceD notes about that meeting that were to be found at pages 197 to 198 in the bundle. Those notes, however, had clearly not been made during the meeting. Case No. 1601688/2023 Page 18 of 29 The Claimant says, at the start of the notes, that they are notes she has made about the meeting. She further states that she had found the notes that she had taken during the meeting but those notes had not been included in the bundle. Without sight of those notes, the Tribunal could not be satisfied that the Claimant had taken notes during the meeting.

43.6 There was a factual dispute as to whether the Claimant had been made aware by the Respondents that the timetable that had been drawn up by Ms Stevens would allow her to arrive late at work and go home early. The Tribunal accepted that Ms Stevens had had that in mind when she drafted her timetable but the evidence from the Claimant was that she understood that the timetable meant that she would be in work for a full day, each day, though her teaching commitment would be reduced. Once again, this was an issue upon which the Tribunal would have expected the Respondents’ notes of the meeting to assist. But they do not. On the basis of the oral evidence that it heard, the Tribunal was satisfied that it was not explained to the Claimant that she could arrive at work late and leave early under Ms Stevens’ proposals. The evidence from the Respondents’ witnesses on that point was unclear whereas the evidence from the Claimant was clear that she had not been told that.

43.7 There is a dispute between the parties as to how the meeting on the 23rd March 2023 ended. The Respondents’ case is that the Claimant left abruptly before the meeting ended. Taking into account Mr Salmon’s evidence, however, that the meeting had reached a stalemate or impasse the Tribunal was satisfied that the Claimant genuinely believed that the meeting had come to an end and that there was nothing further to discuss. It was not surprising, in light of that finding, that the Claimant left the meeting at the time that she did. The Tribunal did not accept the Respondents’ evidence that the Claimant had left the meeting prematurely and that the Respondents were about to indicate that they were willing to compromise on the terms of the phased return. It had been made clear by the Respondents that the Claimant’s proposals were unworkable and would not be accepted. It had been made Case No. 1601688/2023 Page 19 of 29 clear by the Respondents that they were fundamentally opposed to any phased return by the Claimant that involved a pattern of “days on” and “days off”. It had equally been made clear by Mr Stewart, on behalf of the Claimant, that she required a pattern of “days on” and “days off” in order to minimise her anxiety and allow her to decompress after a day of teaching without having to contemplate a following day of teaching.

[44]The Tribunal first of all considered the claim that the Respondents had failed to comply with the duty to make reasonable adjustments under sections 20 and 21 of the Equality Act 2010.

[45]When considering that claim, it is made clear by the Tribunal at the outset that the adjustments that the Tribunal is concerned with are the adjustments relating to the phased return to work. Though an issue had been raised by the Claimant as to the choice of room for the meeting on the 23rd March 2023 that was no longer pursued as an issue by the Claimant at the final hearing and it was accepted by the Claimant that her request for resources and supplies and a point-of-contact individual, to enable her return to work, had been reasonably accepted by the Respondents.

[46]Given that the disability issue had been determined by the Tribunal at a Preliminary Hearing on the 2nd February 2024, the first issue for the Tribunal to consider was whether the Respondents had a requirement for full time staff (as the Claimant was) to attend school all day, five days week and/or a standard phased return policy.

[47]The first of those requirements was not in dispute in this case. It was accepted by the Respondents that there was a requirement that full time staff attend school each day, for a full day, five days a week during term time. There was a dispute, however, as to the second requirement. The Respondents did not accept that there was a standard phased return policy. On that issue, the Tribunal was satisfied that there was a practice at the school that phased returns would have the pattern set out by Ms Stevens in her Case No. 1601688/2023 Page 20 of 29 timetable for the phased return. The evidence from Ms Stevens was to the effect that the timetable that she drafted was the “usual” form of phased return that the school adopted and Mr Salmon in his oral evidence accepted that a return to 50% teaching commitment, of the kind drawn up by Ms Stevens, was the way that the school operated. He described the timetable drawn up by Ms Stevens as consistent with the school’s “operating procedure” and that it was an invariable practice up to a point. Based on that evidence from Ms Stevens and Mr Salmon, the Tribunal was satisfied that the school did have a practice in respect of phased returns that involved a teacher returning to approximately 50% of their teaching commitment in the manner drawn up by Ms Stevens.

[48]The next question for the Tribunal was whether the requirement, which was accepted by the Respondents, and the practice, as found by the Tribunal, constituted a provision, criterion or practice (a ‘PCP’) within the meaning of section 20(3) of the Equality Act 2010. The Tribunal was satisfied that the requirement and the practice did constitute PCPs.

[49]The next issue was whether the PCPs, as found by the Tribunal, put the Claimant at a substantial disadvantage compared to those not suffering from the Claimant’s condition. The Tribunal was satisfied that the PCPs did put the Claimant at a substantial disadvantage. The Claimant, due to her anxiety, was simply not able to contemplate returning to work on consecutive days as part of a phased return. She required, as was made clear to Mr Roberts by Mr Stewart at their meeting on the 15th March 2023 and in Mr Stewart’s email to Mr Roberts on the 16th March 2023 and to both Mr Salmon and Mr Roberts at the meeting on the 23rd March 2023, days off work as part of her phased return in order to reduce her anxiety levels and decompress from the pressures of the working day. The effect of the PCPs upon the Claimant was undoubtedly more than minor or trivial. Due to her disability, the Claimant was unable to return to work in accordance with the PCPs in this case. The impact of the PCPs upon the Claimant was accordingly substantial. Case No. 1601688/2023 Page 21 of 29

[50]The next issue was not really in dispute in this case but is dealt with for completeness. The issue is whether the Respondent knew, or could reasonably have been expected to know, that the Claimant was likely to be placed at a disadvantage by the PCPs. Though the Respondents say that they did not have actual knowledge of the Claimant’s disability until the earlier Tribunal’s judgment on disability, the Tribunal was satisfied, given the contents of the occupational health report, the fact that the Claimant had been off work since the 1st June 2022, the meeting between Mr Roberts and Mr Stewart on the 15th March 2023, the email from Mr Stewart to Mr Roberts on the 16th March 2023 and what was said by Mr Stewart at the meeting on the 23rd March 2023, that the Respondents could reasonably have been expected to know that the Claimant was likely to be placed at a substantial disadvantage by the PCPs identified above.

[51]The parties described the next issue as the main issue in the case and that is the issue as to the reasonableness or otherwise of the Respondents’ proposals concerning the phased return to work and the reasonableness or otherwise of the Claimant’s proposals.

[52]When considering this issue, the Tribunal reminded itself that the duty to make adjustments is, as a matter of policy, to enable employees to return to employment. The focus is firmly on ways in which adjustments can retain people in employment. Further, the duty to make adjustments arises by operation of law. It is not essential for the Claimant to identify what should have been done. The test of “reasonableness” imports an objective standard and it is not necessarily met by an employer showing that it believed that the making of the adjustment would be too disruptive or costly. Having said that, the authorities show that it is proper to explore the question not only from the perspective of a claimant but a Tribunal must also take into account wider implications including operational objectives of the employer.

[53]That is the context for the duty set out in section 20(3) of the Equality Act 2010, which is a duty to take such steps as it is reasonable to have to take to avoid the substantial disadvantage for the claimant arising from the PCPs. Case No. 1601688/2023 Page 22 of 29

[54]The Respondents’ case is that they discharged that duty by means of the timetable for the phased return drawn up by Ms Stevens. They contend that the timetable, as an adjustment, was reasonable as it balanced the Claimant’s interests, the interests of the pupils and the interests of the Claimant’s teaching colleagues. They contend that it was in the best interests of the Claimant because it reduced the daily teaching load upon her until the fourth week of the phased return. They contend that it was in the best interests of the pupils because it minimised disruption to them and provided consistency in terms of teaching staff for the pupils. Mr Salmon’s position was that the Claimant’s proposals were unworkable and would not be countenanced under any circumstances because they caused disruption to the pupils and interfered with consistency of teaching staff. The Respondents also contended that Ms Stevens’ proposals were in the best interests of the Claimant’s colleagues because, compared to the Claimant’s proposals, it reduced the work load upon them by avoiding handovers of classes between teaching staff.

[55]It was clear to the Tribunal that the Respondents had approached the task of identifying the adjustments that were needed to enable the Claimant to return to work as a balancing exercise, in which the interests of the Claimant, the pupils and the colleagues had to be considered. The problem, however, was that, in the judgment of the Tribunal, it was not a true balancing exercise that the Respondent undertook. The Respondents, in the judgment of the Tribunal, did not genuinely take into account the Claimant’s interests when identifying the adjustments that were needed. The Respondents took the view that Ms Stevens’ timetable was beneficial to the Claimant but they completely ignored the Claimant’s case that that timetable was unworkable for her because of the effects of her anxiety. The impression that the Respondents’ witnesses gave was that they had a better grasp of what was in the Claimant’s interests than the Claimant had. It was clear to the Tribunal that the Respondents ignored what the Claimant had to say as to what was in her best interests and it appeared to the Tribunal that there was no rational basis for the Respondents to have so ignored the Claimant. Case No. 1601688/2023 Page 23 of 29

[56]The Respondents’ focus was not on the adjustments that were needed to retain the Claimant in employment. That was clearly the Claimant’s focus but not the Respondents’. The Respondents’ focus was exclusively on the interests, as the Respondents saw them, of the pupils in the Claimant’s classes. That is born out by the fact that Ms Stevens was tasked to draw up her timetable without sight of the occupational health report dated the 17th January 2023 and without sight of the Claimant’s proposals as to a phased return to work. In drawing up her timetable, which the Respondents rigidly adhered to during the meeting on the 23rd March 2023, Ms Stevens took no account whatsoever of the Claimant’s documented mental health issues and no account of the Claimant’s representations as to what reasonable adjustments she felt she needed.

[57]The fact that the Respondents took no real account of the Claimant’s interests is further born out by their approach to the occupational health report. The report suggested a phased return over 4 weeks, gradually increasing the hours “as tolerated”. Mr Salmon’s comment about that, was that it was open to interpretation. The Tribunal was nevertheless satisfied that it was clear that what was being suggested by Dr Tamony was a gradual increase of hours as tolerated by the Claimant. The plan for the phased return drawn up by Ms Stevens, and rigidly adhered to by the Respondents, failed to address the question of gradually increasing the hours as tolerated by the Claimant. That is not too surprising given that Ms Stevens had not seen Dr Tamony’s suggested phased return. As presented to the Claimant, however, the plan drawn up by Ms Stevens depicted the Claimant being full time in the school but with a reduced teaching commitment for the period of the phased return. When it became clear to the Respondents as to why the Claimant, because of her state of health, could not return to work on the basis of the plan drawn up by Ms Stevens, it would have been open for the Respondents to have returned for a further opinion from occupational health as to the mechanics of a phased return but that option was not pursued by the Respondent. The Respondent stuck rigidly to its position that the Claimant’s proposals were unworkable. Case No. 1601688/2023 Page 24 of 29

[58]The Respondents were dismissive of the Claimant’s proposals because of their assessment as to the disruption that would be caused to pupils by those proposals, and yet ignored the fact that split classes were commonplace as was the use of supply teachers to cover absent teaching staff. They disregarded the Claimant’s argument that arrangements could be made for the split teaching of classes over the period of the phased return that would have avoided the need for handovers between members of staff. Of most concern to the Tribunal was the apparent disregard of the merits of ensuring the return of the pupils’ permanent teacher in place of the supply teachers that had been teaching the pupils since June 2022 and the prospect of having to recruit a mathematics teacher, in the context of a national shortage of mathematics teachers (as explained by Mr Salmon in his oral evidence), to replace the Claimant if she did not return to work. Under the Claimant’s proposal there would have been some disruption to the pupils but that had to be weighed against the period of the disruption, which was relatively short, amounting to just over 2 weeks according to the Claimant’s proposal, and the merits of getting the Claimant back to full time work – and thereby avoiding the need for further supply teachers and/or the recruitment of a new mathematics teacher in place of the Claimant if she did not return to work. The Tribunal was satisfied that the Respondents had lost sight of the benefits to the pupils of getting the Claimant back to work by their rigid focus on the short-term disruption to pupils that would be caused by the Claimant’s proposals.

[59]As a result of disregarding the Claimant’s representations as to what was in her best interests (and, in the Tribunal’s view, wrongly thinking that they knew better than her as to what was in her best interests) and devising proposed adjustments that involved no consideration of the Claimant’s documented mental health issues, the Respondents came up with adjustments that simply did not begin to avoid the substantial disadvantages that the PCPs had presented to the Claimant. The Respondents were under a duty to take such steps as were reasonable to have to take to avoid that substantial disadvantage for the Claimant. In the judgment of the Tribunal the Respondents breached that duty. There were steps that the Respondents could have taken, in the judgment of the Tribunal, that were reasonable to have to take to avoid the substantial disadvantage to the Claimant. The steps that the Case No. 1601688/2023 Page 25 of 29 Respondents came up with did not avoid the substantial disadvantage and they were not reasonable. In the judgment of the Tribunal, the Respondents’ concerns about disruption to pupils and consistency of teaching staff could have been addressed and mitigated through adoption of the Claimants’ proposals or by modification of those proposals by, for example, delaying the phased return to the start of the summer term. The Tribunal was satisfied that the Claimant would have been open to such modification of her proposals.

[60]The Tribunal is satisfied that there was non-compliance by the Respondents with the duty under section 20(3) of the Equality Act 2010 and that the non-compliance amounted to a failure to comply with the duty to make reasonable adjustments.

[61]I should add that the Tribunal was fortified in its decision that there had been a failure by the Respondents to comply with the duty to make reasonable adjustments by a comment that was made by Mr Roberts in his oral evidence. He stated that if the occupational health report had stated that the phased return to work should involve “days on” and “days off”, then the Respondents’ task would have been made “easier”. He was asked by the Tribunal what he meant by that and he explained that the Respondents would have followed any recommendation made by occupational health. That comment by Mr Roberts jarred with the thrust of the Respondents’ case that the Claimants’ proposals were unworkable. Mr Roberts appeared to be saying that if occupational health had made those proposals, by way of a recommendation, then they would have been accepted by the Respondents without question. In the judgment of the Tribunal, that comment significantly undermined the Respondents’ case that the Claimant’s proposals were unworkable and could not be countenanced. Constructive Unfair Dismissal

[62]Turning to consider the claim of unfair constructive dismissal, the first question that arises is whether the Claimant has established, the burden being upon her, that the Respondents breached the implied duty of mutual trust and confidence by refusing her request Case No. 1601688/2023 Page 26 of 29 for a phased return to work and/or discriminating against her on the grounds of her disability.

[63]Given the Tribunal’s decision that the Respondents failed to comply with the duty to make reasonable adjustments under sections 20 and 21 of the Equality Act 2010, for the reasons set out in this judgment, the Tribunal was satisfied that the Claimant had shown that there had been a breach by the Respondents of the implied term of mutual trust and confidence. The Tribunal’s conclusion was that the Respondents’ failure to comply with the duty to make reasonable adjustments amounted to a breach of the implied term of mutual trust and confidence.

[64]The next question was whether the Respondents’ breach of the implied term of mutual trust and confidence was sufficiently serious as to constitute a repudiatory breach entitling the Claimant to treat herself as being dismissed. Taking into account the Respondents’ outright dismissal of the Claimant’s proposals as to her phased return and their rigid adherence to the timetable that had been drawn up by Ms Stevens and further taking into account that the consequence of the Respondents’ approach to the arrangements for the Claimant’s phased return to work was that she could not return to work due to the effects of her anxiety, the Tribunal was satisfied that the Respondents’ breach of the implied term of mutual trust and confidence was sufficiently serious as to constitute a repudiatory breach entitling the Claimant to treat herself as having been dismissed.

[65]The next question was whether the Claimant did in fact resign in response to the Respondents’ breach of the implied term of mutual trust and confidence. It was clear from her text messages to Mr Stewart on the 24th March 2023 that the Claimant was contemplating resignation the day after the meeting because of the Respondents’ inflexible approach to the arrangements for her return to work. She subsequently resigned 6 days later. It was clear to the Tribunal that the resignation was in response to the Respondents’ breach of the implied term of mutual trust and confidence. Case No. 1601688/2023 Page 27 of 29

[66]The next question is whether the Claimant had affirmed the Respondents’ breach by remaining in employment after the date of her resignation. It is right to say that the Claimant remained in work until the end of her notice period but that is not the same as the Claimant affirming the Respondents’ breach. The resignation was made promptly after the meeting on the 23rd March 2023 and in the Tribunal’s judgment there was no basis here for concluding that the Respondents’ breach had been affirmed by the Claimant.

[67]The final question is whether the constructive dismissal was fair or unfair within the meaning of section 98 of the Employment Rights Act 1996. It has to be said at this point that the claim has not been defended by the Respondents on the basis that a fair dismissal had occurred. The Respondents’ defence to the claim has been on the basis that there had been no failure to comply with the duty to make reasonable adjustments. This is therefore not a case in which the Respondents have asserted a prima facie fair reason for the Claimant’s dismissal or have otherwise contended that the dismissal was fair. In the absence of any reason advanced by the Respondents for the dismissal, the Tribunal was driven to the conclusion that the constructive dismissal was unfair. The Respondents having failed to fulfil the requirements of section 98(1) of the 1996 Act (namely, the requirement to show the reason for the dismissal and that it was a prima facie fair reason within the meaning of section 98(2) or was otherwise for some other substantial reason), it was unnecessary for the Tribunal to go on to consider the question of fairness with regard to section 98(4) of the 1996 Act.

[68]Having orally delivered to the parties the liability judgment set out above, the Tribunal proceeded to hear submissions from the parties on the subject of remedy. Two points were raised by the Respondents that required a decision from the Tribunal. Firstly, the Respondents made a Polkey type submission, contending that the relationship between the Claimant and the Respondents had broken down irretrievably and that there was a chance, to be assessed by the Tribunal and to be reflected in a reduction to the award of compensation, that the Claimant would have resigned from her employment with the Respondent regardless of the unfair constructive dismissal and regardless of the Respondent’s failure Case No. 1601688/2023 Page 28 of 29 to comply with its duty to make reasonable adjustments for the Claimant’s return to work in March 2023. The Tribunal rejected that submission. The Tribunal could not, with any degree of confidence, make the prediction that the Claimant would, in any event, have resigned from her employment with the Respondents had she not been constructively unfairly dismissed and had there not been the failure to make reasonable adjustments for her return to work. In the judgment of the Tribunal, it seemed more likely than not that had she not been constructively unfairly dismissed and had there not been a failure to make reasonable adjustments for her return to work, the Claimant’s employment with the Respondents would have continued. The Tribunal was accordingly of the view that there should be no percentage reduction of the Claimant’s compensation to reflect a chance that she would have resigned in any event from the Respondents’ employment. Absent the circumstances of the constructive unfair dismissal and the failure to make reasonable adjustments, the Tribunal found that the relationship between the parties had not irretrievably broken down.

[69]The second point raised by the Respondents concerned the application of the ACAS Code of Practice on Disciplinary and Grievance Procedures and the question whether the award of compensation to the Claimant should be reduced by reason of the operation of section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992 by reason of the Claimant’s failure to submit a formal grievance before making her decision to resign and claim constructive unfair dismissal. The Tribunal noted that the Claimant had submitted a grievance to the Respondents on or about the 9th June 2023, which was met with a response from the Respondents on the 14th June 2023 that the matters raised by the Claimant in her grievance should have been raised informally first of all. Though those events occurred after the constructive unfair dismissal, it showed, to some extent, how a formal grievance, if raised by the Claimant before the constructive unfair dismissal, was likely to have procedurally dealt with by the Respondents. Given the dispute between the parties that led to the constructive unfair dismissal and which concerned the Respondents’ failure to make reasonable adjustments, it was most unlikely that an informal grievance procedure would have avoided the Claimant’s resignation. Ultimately though, the Tribunal took the view that had the Claimant submitted a formal grievance prior to her resignation, it was most unlikely that the grievance would have resulted in a Case No. 1601688/2023 Page 29 of 29 resolution of the matters being raised by the Claimant given the Respondents’ inflexible stance in relation to the conditions that they sought to impose relating to the Claimant’s return to work. In short, a grievance raised by the Claimant before her resignation was most unlikely to have made any difference whatsoever to the outcome that finally occurred in this case.

[70]Having orally delivered its judgment in relation to the two points raised by the Respondents in relation to remedy, the parties then informed the Tribunal that the quantum of the award of compensation to be made to the Claimant was agreed in the total sum of £43,660.87 (inclusive of a Basic Award, financial losses, injury to feelings and interest). Judgment was accordingly entered against the Respondents in that sum.