Mrs W Canning v Chief Constable of South Wales Police: 1602463/2024 Mrs W Canning v Chief Constable of South Wales Police: 1602463/2024

EMPLOYMENT TRIBUNALS

Case No 1602463/2024

Between

Mrs W CanningClaimant

Chief Constable of South Wales PoliceRespondent

Before

Employment Judge R Brace

Members

Ms C Bleasdale

Mr A Fryer

Mr J Lewis-Bale (instructed by Counsel) for claimant

Mr M Ley-Morgan (instructed by Counsel) for respondent

Date 16 January 2025

REASONS

[1]This was an in person hearing, heard over the course of four days at Cardiff, both parties being represented by counsel. The hearing proceeded without any practical difficulty with evidence completed by the end of the second day and an oral judgment being given on the fourth day. Recusal

[2]As the Employment Judge sitting on the Tribunal, I raised an issue with the parties that I had historically undertaken some work for the South Wales Police, in excess of 7 years’ ago, providing information of the type of work that I had undertaken whilst a partner in a commercial law firm based in Cardiff. The parties were invited to consider whether they wished to make any application for a recusal. After an adjournment to enable the parties to consider their respective positions and take instructions, both parties confirmed that they had no wish to make an application for recusal. Adjustments

[3]What adjustments if any were required for the Claimant and any participants for the Respondent was discussed and it was agreed that regular breaks of 10 mins every hour/hour 15 minutes would be put in place and no further adjustments were sought. This adjustment was put in place throughout the hearing. Timetabling

[4]Timetabling was discussed and it agreed that both would require approximately 3 hours for cross-examination of each parties’ witnesses and that written submissions would be required by the morning of the third day with both parties having the opportunity to supplement with oral submissions being given half an hour each. Amendment

[5]The Respondent made an application for an amendment to §58.3 Grounds of Resistance for the removal of the word ‘if’. This was permitted with the consent of the Claimant.

List of Issues

[6]The parties had prepared a List of Issues, which had been agreed between the parties as directed at an earlier preliminary hearing. At the outset of the hearing, this was agreed with and adopted by the Tribunal as the issues to be determined save that it was clarified that the issue of disability was no longer an issue for determination by the Tribunal.

[7]The Claimant relies on ‘menopause symptoms’ as her disability and that mental health issues were linked to that. She was not relying on independent impairments of suspected bi-polar and/or Aspergers and/or suspected personality disorder as separate impairments. Whilst the Respondent struggles to understand the link between mental health and menopause symptoms, they do not raise any issue regarding the reason for the Claimant’s absence from work as being related to her disability and it is therefore not a live issue for determination by the Tribunal.

[8]A copy of the list of issues is at Appendix A to these Written Reasons. The Claims and Early Conciliation

[9]The Claimant entered into a period of early conciliation on 17 April 2024 that ended on 29 May 2024 and filed her ET1 on 21 June 2024. She brings claims of indirect discrimination, discrimination arising from disability and harassment. It had previously been agreed at the case management preliminary hearing that the Claimant is not claiming direct discrimination. Bundle

[10]The Tribunal was referred selectively to the hearing bundle of relevant documentary evidence (“Bundle”). References to the hearing Bundle (pages 1- 652) appear in square brackets [ ] below.

The Evidence

[11]The Tribunal heard evidence from the Claimant, Wendy Canning, and for the Respondent:a. Inspector Paul Thomas, Claimant’s manager from 13 June 2022 to 11 September 2023;

b. Inspector Richard Williams, Claimant’s line manager from 11 September 2023;

c. Chief Inspector Dean Thomas; and

d. Linda Williams, Human Resources Business Partner.

[12]All witnesses relied upon witness statements, which were taken as read, and they were all subject to cross-examination, the Tribunal’s questions and re-examination. Assessment of the evidence

[13]The Tribunal was satisfied that all witnesses gave their evidence honestly and to the best of their knowledge and belief. It is not necessary to reject a witness’s evidence, in whole or in part, by regarding the witnesses as unreliable or as not telling the truth. The Tribunal naturally looks for the witness evidence to be internally consistent and consistent with the documentary evidence. It assesses a range of matters including whether the evidence is probable, whether it is corroborated by other evidence from witnesses or contemporaneous records of documents, how reliable is witness’ recall and motive.

[14]We did not consider it necessary to give an overall view of the evidence. Rather, we raised this throughout the reasons at relevant times where there was a dispute on the facts. Facts Employment History

Facts

[15]The Claimant has been employed by the Respondent since 2000 and she continues in employment. She was at the relevant times 52/53 years’ old and employed as a Supervisory Sergeant, but in restricted duties i.e. in a nonoperational role.

[16]She is employed in the Crime Integrity Unity (“CIT”) of the South Wales Police Force (“SWP”) having been transferred there in June 2022, from a role in the Digital Services Division. CIT is a team responsible for ensuring that the SWP achieves comprehensive, consistent and accurate recording of crime and incidents.

[17]CIT has a staff of 25 and is split into two teams, with the Claimant being responsible for supervising 9 of those staff on one team, and a civilian colleague supervising a second team of the remaining 16 staff. The Claimant works a set rotating and repeated 10 hour shift pattern of:a. 5 days on, followed by 4 days off;

b. 5 days on, followed by 4 days off; and

c. 6 days on, followed by 4 days off.

[18]The Claimant also is entitled to work overtime, and since May 2023, at the latest, has done so on a regular basis, an issue which we return to later in these reasons.

[19]Since joining the CIT in June 2022, the Claimant has worked from home, a shift to flexible working from home for the whole CIT team having been undertaken over the Covid-19 period and remains in place today. This is not an adjustment for the Claimant specifically. The Claimant is only required to attend the headquarters of SWP approximately once every 10 days but this has not caused her any specific issues.

[20]The Claimant’s employment was subject to the Police Performance Regulations 2022 (“PPR”,) aspects of which have been incorporated into the Respondent’s Sickness Absence Procedure (“Sickness Absence Procedure”) [354]. It was agreed between the parties that the Tribunal did not need to consider the specific regulations, only the SWP Sickness Absence Procedure. Relevant issues relating to the management of absences was set out in set out in Section 3 of that Sickness Absence Procedure and includes, in particular, the following which are relevant.

[21]Section 3.2 [364] set out provisions relating to Trigger Points, used to identify unacceptable attendance and activate either supportive management intervention or Stage 1 of the PPR procedure. Trigger Points were listed as:a. 3 or more instances of sickness absence in the last 365 days;

b. Bradford Score of 200+;

c. Protracted absence (over 28 days); and

d. Pattern of sickness absence.

[22]It was noted that any attendance plan set should be individualised and that targets set should be specific and clear.

[23]In addition, the FAQ section of the Sickness Absence Procedure contained a section entitled ‘What is the Bradford Score?’, providing an explanation that it was a way of identifying individuals with serious absence and patterns of absence worthy of further investigation, which should be used as a tool to assist managers and considered together with all the factors and circumstances of a given case. The section further provided an explanation of how it was calculated, using the formula: S x S x D = Bradford Score, where S was the number of occasions of absence in the last 365 days and D was the total number of days’ absence in the last 365 days. An example was provided.

[24]Section 3.5 set out that intervention under the PPR or SWP Capability Policy (which was not in the Bundle) would be deemed appropriate unless any absence that had led to a trigger point being reached could be discounted, further setting out the reasons where such discount could be applied. These included, but were not limited to:a. Linked absence: If a manager considered that an individual had two or more absences which were directly linked to the same condition then this may be counted as one period of sickness absence save that this would only apply within a reasonably short period of each other or if further medical treatment was required as a direct result of the initial sickness absence; and

b. Disability related absence may be discounted as a reasonable adjustment. An example was given that it may be considered reasonable to allow an individual to have slightly higher sickness record, depending on the nature of the disability enabling a manager to make an assessment to discount periods of disability-related absence.

[25]The Claimant is also entitled to the benefit of the SWP Special Leave Policy [387] which includes provision for attendance at hospital, dentists, doctors etc. in section 5 [395]. In brief, this included provisions that:a. time off in lieu (“TOIL”), flexi or annual leave should be used for routine doctor’s appointments and wherever possible these should be arranged outside normal working hours and taken in an employee’s own time;

b. If this was not possible, Special Leave may be granted in exceptional circumstances and that permission had to be sought from line manager following production of an appointment card; and

c. Line mangers were permitted to grant leave for special medical appointments which could not be arranged outside normal working hours, with an example given of intensive treatment such as radiotherapy. Disability

[26]It is accepted that the Claimant has suffered symptoms related to her hormone imbalance linked to peri-menopause, menopause and pre-menstrual disorder since 2013, when her symptoms first started of low mood, hair loss, night sweats, irritability, albeit these conditions were not formally diagnosed as menopause symptoms for some time.

[27]As indicated, that the Claimant was a disabled person at the relevant times by reason of her menopause symptoms for the purposes of bringing her discrimination complaints is conceded. The Claimant does not rely on the separate impairments of suspected Bi-Polar, suspected Aspergers, Borderline Personality Disorder for the purposes of her discrimination complaints, but on menopause symptoms which is conceded.

[28]Whilst the Respondent was unclear as to the relationship between the Claimant’s impairments related to her menopause and the remaining impairments, they raise no issue for the purposes of her being able to bring her discrimination complaints. Sickness Absence

[29]From the commencement of her employment in CIT in June 2022, Inspector Paul Thomas was responsible for line managing the Claimant. From 13 January 2023, the Claimant commenced a period of sickness absence, and it is accepted by Inspector Thomas that he knew that she was off sick and had indicated to the Respondent, that she was struggling with symptoms of menopause, having been notified of this by another member of staff within the team. There were no fit notes within the Bundle that we were taken to or other sickness records and make no finding beyond this although we did express surprise at the lack of such written documentation. Meeting 21 March 2023

[30]After the Claimant had been absent for a period, Inspector Thomas decided a trigger point in the Respondent’s Absence Procedure had been reached on the basis of ‘protracted absence’ [364] and that management intervention was required. He decided that informal, as opposed to a formal stage one process, was more appropriate. A meeting was arranged which took place on 21 March 2023, some 63 days after the commencement of the Claimant’s sick leave on 13 January 2023.

[31]The Tribunal was provided with a copy of the notes of that meeting in the Bundle [168]. What was discussed at that meeting was not in dispute and we accepted the notes as an accurate reflection of the discussion.

[32]At that meeting, the Claimant attended with a companion. The Claimant’s total sickness absence by that date, since she had commenced employment with the Respondent was raised and recorded as being 635 days (excluding pregnancy, injury on duty, assault and disability sickness,) which on average amounted to 34 days’ sickness absence a year.

[33]The Claimant’s the last three absences were also recorded as beinga. 13 days for Covid symptoms in November 2021;

b. 7 days for an upper respiratory tract infection in October 2021; and

c. 25 days for a mental health condition in June 2021.

[34]The Claimant was provided with an overview of the sickness absence process and the possible outcomes.

[35]The Claimant and Inspector Thomas then discussed the reasons for the Claimant’s current absence and the Claimant reported that she had been struggling with menopause symptoms for years and that her symptoms were as a result of hormone imbalance. She discussed her HRT. She explained that she had elected to have private surgery for a full hysterectomy which she hoped would resolve her symptoms in April 2023.

[36]She advised that post-surgery recovery was estimated at between 6-8 weeks recovery The Claimant confirmed that she was one of the Respondent’s ‘Menopause Champions’. It was agreed that her target return to work date would be 6 June 2023, to allow for a period of recovery after her procedure on 11 April 2023.

[37]The Claimant gave evidence that she considered Inspector Thomas to be empathetic and understood her position having confirmed to her that he had a family member who had pre-menstrual issues which in turn made the Claimant comfortable that he would support her moving forward.

[38]At the end of that meeting, Inspector Thomas advised the Claimant that the following Supportive Action Plan would be set:a. A return to work date of 6 June 2023;

b. The Claimant would maintain attendance so that her Bradford Score did not increase over the following three months;

c. She would maintain attendance at an acceptable level for a period of 12 months i.e. not hit any Trigger Points;

d. She would return to work on a phased return;

e. For the first three months, Inspector Thomas would carry out monthly reviews with her;

f. She would continue to attend all appointments and follow medical advice and treatment;

g. For the first three months of the SAP, he would carry out monthly reviews with her;

h. That she was to inform him of any concerns regarding her welfare so that appropriate action could be implemented;

i. She would inform him of any clash with working hours of any forthcoming medical appointments to enable him to review or put the required measures in placed to support her;

j. He would review any future periods of absence to ensure that any linked cases were appropriately highlighted/acted on as appropriate.

[39]The Claimant was asked for her views on the SAP at the end of the meeting and confirmed that she agreed its content. The SAP was confirmed in writing by way of letter dated 24 March 2023. The letter further confirmed that if the Claimant did not meet the agreed timescales or there was insufficient improvement, then she may be referred to Stage 1 of the PPR [173]. Claimant’s return to work 23 May 2023

[40]The Claimant returned to work on 23 May 2023, two weeks earlier than planned and agreed under the SAP. She was again offered a phased return to work in accordance with the action plan, but she declined. She felt able to return at that earlier point, already having been off for a few months and was keen to return to work. She was already on restricted duties and did not consider a phased return to be supportive. She considered that she had physically recovered well and the surgery had been a success as no physical complications and there was no need to phase her return. She hoped she had been ‘fixed’.

[41]She gave evidence that could not have known of impact that the operation would have had on her. We found that this was not true, as when questioned on what she had been informed by her private clinician regarding post-operative symptoms, she confirmed that she had been advised that due to her hysterectomy and subsequent surgical menopause, she would have depleted oestrogen levels and menopausal symptoms would continue.

[42]She gave further evidence that as her oestrogen levels depleted she did became unwell. She was unable to pinpoint any specific, or indeed any date when that arose post-operation. The Claimant’s counsel’s written submissions (§9) that she did not start experiencing issues until some weeks after the surgery when her HRT dosage was changed, was not supported by the live evidence given by the Claimant which was that she could not indicated when this arose, a point conceded in oral submissions.

[43]We were taken to the Claimant’s GP records, from the date of her operation, on cross-examination of the Claimant [502-487]. The records demonstrated that at various points the Claimant attended her GP regarding her HRT treatment and intermittently reported that she was continuing to have some symptoms of menopause (5/9/23, 20/11/23, 6/11/23, 27/11/23).

[44]She gave live evidence that she believed that Inspector Thomas knew that she was ‘struggling’ in work as a result of her menopause symptoms post-operatively, an issue she had not included in her written statement evidence. The Claimant was challenged on that evidence. She relied on a conversation, possibly two, she said she had had with him when she told him that she was finding it ‘really hard’ to manage a particular member of staff who she felt was rude and disrespectful and was known to be ‘problematic’. She was equivocal as to whether she expressly told him that she was still struggling with her menopausal symptoms, admitting that she may not have used such terminology.

[45]Inspector Thomas’ evidence was that save for the first month following the SAP, when he too was absent from work, whilst he held no structured or documented meetings with the Claimant (which he accepted might have been implied by the SAP’s reference to ‘review’,) he did engage in monthly reviews with her in that he had ongoing conversations with her and if new information had been provided to him, he would have been responsible for addressing those.

[46]He had no recall of the Claimant having indicated to him that she was struggling with a particular member of staff save that he did recall that the Claimant had raised in August a timekeeping issue regarding that member of staff, a couple of days before they were due to leave the team in September and that the Claimant did not link such an issue with her menopause.

[47]In addition and in the period from May 2023 when the Claimant had returned to work following her operation to this point, in addition to working her regular shift pattern of 10 hour shifts, the Claimant on average worked overtime hours of around 40 hours overtime per month. The Claimant accepted that this averaged out at approximately one additional shift of 10 hours per week, which she worked on one of her rest days. She also accepted that as some weeks she did not work overtime, this meant that in other weeks she would work two additional shifts on two of her four rest days. We found that on any basis this was a significant amount of regular overtime, worked on an almost weekly basis in that period. In relation to overtime, the Claimant gave evidence that she was entitled to work overtime, that it was an opportunity for her to learn her role and understand what others in the department were doing albeit it was simplified work to her normal hour, that she had to pay for her private surgery that had been paid for on credit card.

[48]We found on balance as a result of the Claimant’s evidence, that it was likely that she did not tell Inspector Thomas that she was struggling with her menopausal symptoms at any time in the lead up to September 2022 when he ceased line managing her, particularly as she admitted in evidence that she did not know herself what had been driving her unwellness post-operatively. Further, it could not be said that Inspector Thomas ought to have known that she was experiencing any continuing menopausal issues following her hysterectomy as:a. She did not tell him;

b. The difficulties she said she faced with one particular member of staff, even on her own evidence, would not have been sufficient to alert him or put him on notice;

c. She had not been absent from work since her early return in May and in fact work considerable overtime on a routine and regular basis since her return.

[49]Essentially, we found that there was nothing that would have put the Respondent on notice of the Claimant’s continuing menopausal symptoms on her return to work in May 2023.

[50]On 11 September 2023, line management of the Claimant moved from Inspector Paul Thomas to Inspector Richard Williams. At that point, the Claimant was still working almost exclusively from home and was not required to wear her police uniform when she was required to go into the premises. In addition, she also had adjusted duties, adjustments that were historical and unrelated to menopause symptoms in relation to being trained to perform the role of a Dedicated Decision Maker and in not having to undertake other duties such as presenting information to all CIT staff at team meetings.

[51]An initial meeting took place between the two in a coffee shop at some point on his designation as her line manager. The Claimant gave live evidence that he spoke in this meeting that his wife had been going through the menopause, an issue that was not in her witness statement. She relied on that comment as evidence that he had been dismissive about the menopause and its symptoms and that this attitude had continued and effectively permeated his management of her from September 2022.

[52]We did not accept that evidence or find that had been the case for the following reasons:a. the Claimant had considered a similar a comment from Inspector Thomas, to be supportive. There was no logical reason why a similar comment, in isolation likely designed to convey empathy, would have been construed differently coming from a different male manager;

b. Later evidence did not support any evidence that he had behaved in a dismissive way generally towards the Claimant regarding to her menopause: i. We were taken to a number of emails which demonstrated his support of her Menopause Champion work; ii. Linda Williams, HR Business Partner (“HRBP”) confirmed in evidence that she had found the meeting that she had attended with him and the Claimant on 11 January 2024, to be fair; and iii. Inspector Williams had sent her a text following that January meeting that could only be described as supportive. Sickness Absence : November 2023

[53]On 25 November 2023, the Claimant again reported as unfit for work, presenting a Fit Note to 8 December 2023 stating ‘menopause’ [626]. She was unable to explain in live evidence what triggered this particular absence beyond a colleague asking her generally how she was.

[54]When the Claimant’s Fit Note expired on 8 December 2023, the Claimant sought to return before the commencement on her next rostered shift on 12 December 2023, to work additional overtime on her allocated rostered rest days of Saturday 9 December and Monday 11 December 2023. Whilst this surprised Inspector Williams, as she had reported absent with fatigue being one of her menopausal symptoms, he agreed to it.

[55]The Claimant contacted Inspector Williams by telephone, she says on 11 December 2023. Inspector Williams says the telephone contact was 28 November 2023 and that this date was supported by his absence management notes, notes which were not in the Bundle. We found that it was more likely to be 11 December 2023, as the Claimant’s email to him of that date refers to a telephone call of earlier that day [183].

[56]Either way, it is not in dispute that in that email of 11 December 2023, the Claimant wrote that she had been advised by her Federation Representative that:a. her sickness absences, between 13 January 2023 - 24 May 2023 and 26 November 2023 – 13 December 2023, should be linked; and

b. sought clarity on whether any consideration had been made in relation to the Equality Act.

[57]She asked if a reasonable adjustment could be made so that her sickness could be managed outside of the sickness policy. Inspector Williams responded later that day asking if the Claimant would be available for a Teams call the following morning.

[58]There was no definition in the Sickness Absence Procedure of what was a reasonable period to assist in determining whether periods of absence should be ‘linked’ and no definition elsewhere, in the FAQs or otherwise.

[59]Prior this meeting, Inspector Williams contacted Linda Williams, HRBP. She gave him advice on the Sickness Absence Procedure and the guidance around linking of absence which was that it was an option that was open to him and he needed to determine if the absence should be linked under the Sickness Absence.

[60]After considering the Sickness Absence Procedure, and in particular the length of time between the two absences, he concluded that it was not appropriate to link the absences on this occasion as, even if there was a link due to menopause, he did not believe that the absences were in a reasonably short time of each other, or that there had been a need for further medical treatment following the initial sickness absence that had ended in June 2023. He concluded that it was appropriate to instigate the formal absence management process.

[61]A meeting took place between the Claimant and Inspector Williams on 14 December 2023. Neither witness took the Tribunal to a note of that that meeting but it is not in dispute that and at that meeting the Claimant was informed that the Respondent would be proceeding with a formal meeting under the PPR. Emails of 19 December 2023

[62]The Claimant claims that she was harassed by Inspector Williams a few days later, on 19 December 2023, following her request to take special leave for a medical appointment with a consultant.

[63]A copy of an email string between the two over the course of that day and the next was included in the Bundle, an email string that commenced with that email from the Claimant to Inspector Williams, but included at later stages emails to and from Julie Reilly, the Claimant’s Federation Representative.

[64]As indicated, the email string commenced with the Claimant emailing Inspector Williams on 19 December 2023, asking for permission to attend a consultant appointment on 2 January 2024 [188]. There was no indication in that email what the consultation related to.

[65]Inspector Williams responded by 1.13pm, confirming that this would be ‘no problem’, thanking her for the update. He indicated that he had no issue if the Claimant needed to change her rest day for that week if the appointment fell on a working day [191].

[66]In turn, the Claimant responded three minutes later confirming that it was a working day but that she believed the PPR said that they were permitted hospital appointments with supervisor approval. She ended the email’ ‘So if ok with you I will log off around 1ish …….’ [190]. Again, she did not indicate the purpose of the consultation.

[67]Around 20 minutes later, Inspector Williams confirmed that it would be no problem if the Claimant wanted to take time off in lieu (TOIL”) or work a split shift. He attached a copy of the Special Leave Policy and confirmed that in accordance with that policy, he was not able to authorise paid leave for pre-arranged hospital appointments [190]. He did not require the Claimant to use TOIL to attend the appointment.

[68]We found that the Claimant did not explain directly to Inspector Williams that since having her hysterectomy she was having issues with her bladder, as she had evidenced in her witness statement. Rather, she forwarded her email exchange with Inspector Williams to her Federation representative for advice after having tried to call her it appears. Julie Reilly responded that if the hospital appointment relates to a “Disability’ can be a ‘Reasonable Adjustment’. This could also be written into a Supportive Attendance Plan.’

[69]It was in response to that email, that the Claimant emailed Julie Reilly (not Inspector Williams,) stating that since having her hysterectomy she had been having ongoing issues with her bladder and that she had been referred by NHS but due to the lengthy wait time she had made an appointment privately and that her inspector had advised that this fell outside of the Special Leave Policy.

[70]Julie Reilly responded advising that the Claimant to request that this as a reasonable adjustment as it was linked to her past and current sickness triggers.

[71]At 5.32pm that evening, the Claimant forwarded her exchange with Julie Reilly to Inspector Williams stating that she wanted to clarify her entitlement on being allowed to attend a specialist medical appointment in work time as she was aware that staff have been allowed this previously. She stated that her Federation Representative had given guidance on it, referring to the emailed advice she had received and she had included in the email string. She attached a copy of her appointment letter to see a Consultant Urologist. She asked if he would reconsider and allow her attendance as a reasonable adjustment or special leave [188].

[72]Inspector Williams responded by 8.11am the following morning. He did not refuse to reconsider. Rather, he asked the Claimant to provide context on how this medical issue was linked to her ongoing reasonable adjustment and SAP and also to confirm that it was not possible to make this private medical appointment on any of her four rest days.

[73]The Claimant did not respond to provide that context or indeed respond at all. She also chose not to swap her rest days or take TOIL as had been suggested. Rather, she chose to take annual leave. Stage One Meeting : 10 January 2024

[74]The Claimant was sent a letter dated 19 December 2023 requiring her to attend that Stage 1 meeting which was to be held in 5 January 2024 as she had been unable to meet the objectives of the supportive attendance plan set at the meeting on 21 March 2023 [186]. She was advised that she could be accompanied and that a Stage 1 meeting finding that attendance was unsatisfactory would result in a written improvement notice (WIN) being issued. She was directed where a copy of the PPR procedure could be found.

[75]The Claimant attended the meeting, at a later date of 10 January 2024. She was accompanied by her Federation Representative and Inspector Williams attended with Linda Williams, HRBP. Again, notes of the meeting were included in the Bundle which were not challenged and we accepted were an accurate reflection of the matters discussed [217].

[76]As the notes reflect, Inspector Williams confirmed that as the Claimant had been absent on 25 November 2023, her Bradford Score now amounted to 782, the Claimant having been off for 132 days (from January 2023,) and again for a further 17 days from 25 November 2023. After informing the Claimant that the purpose of the Sickness Absence Procedure was to enable quality policing and maintain service delivery and disruption, and outlining roles, Inspector Williams explained the process whereby certain absences could be discounted, repeating the relevant section of the Sickness Absence Procedure.

[77]The Claimant was invited to explain how she was feeling. She explained how her mental health, coupled with the symptoms of menopause, had been hard for her to manage, detailing her symptoms of menopause. She confirmed that she had witnessed a decrease in her physical symptoms since her procedure but that she still experienced symptoms that were difficult to predict and varied from day to day, where she had good and bad days, and that her HRT was still being managed.

[78]The Claimant indicated that she found her working days extremely long and tedious and it appears that it was in response to that comment that Inspector Williams raised concerns regarding the amount of overtime that the Claimant had been working, with the Claimant having worked 243 hours of overtime in June alone, a month after her return to work following her operation.

[79]He requested that she consider reducing that overtime and prioritise her own heath as this could be contributing to her brain fog, tiredness and low mood. The Claimant agreed and confirmed that she realised that overtime was having a negative impact and that she was doing overtime at that stage on only one of her rest days.

[80]Inspector Williams also proposed the possibility of her changing her shift pattern, with an 8 hour shift patter. The Claimant confirmed she would consider this.

[81]Reasonable adjustments already in place were also discussed and the Claimant confirmed that the biggest adjustment she currently had was the ability to work from home. Additional breaks, due to the repetitive nature of the role, was something agreed to be considered.

[82]The Claimant’s concerns regarding Inspector Williams response to her request for special leave was discussed, with Inspector Williams informing the Federation Representative that when the request initially was made no context was provided and that he had asked for further information.

[83]The Claimant’s evidence was that this was a very difficult meeting and that she felt unsupported. Again, whilst we accept that the Claimant was likely to have found any meeting difficult, we did not find it reasonable for the Claimant to have felt unsupported.

[84]We had not found that Inspector Williams’ attitude to the Claimant, in the run up to that meeting, to be dismissive of her conditions. We repeat our earlier findings and would say we did not find that the Claimant had established that there had been anything in that particular meeting that would have led her to feel unsupported.

[85]Further, there was nothing in the content of the meeting note that indicated this. Indeed, the Claimant had indicated in the meeting that it was only because Inspector Williams was a new manager, that she struggled to open up and found it overwhelming recounting her history. The Claimant had been accompanied by her Federation Representative at that meeting and we found that it was more likely than not, that had Inspector Williams been anything other than supportive, the Federation Representative would have raised issue with that, either at the meeting or shortly thereafter. She did not.

[86]As indicated, whilst we accept that the Claimant might have found the meeting difficult, in that it was likely to be difficult for her to talk about her medical history which had been ongoing for a number of years, and whilst the Claimant may have not wanted such a meeting to take place, we were not persuaded that she had proven that the meeting was punitive or that Inspector Williams’ approach was dismissive. Rather, we found it more likely than not that the meeting was conducted in a way that was intended to be and was as supportive as possible in the context of an absence management discussion

[87]The meeting ended with Inspector Williams confirming that the Claimant would be issued with a formal written improvement notice (“WIN) with the following put in place:a. From 10 December 2023, the Claimant would maintain attendance so that her Bradford Score would not increase over the following three months;

b. She would maintain attendance at an acceptable level i.e. no Trigger Points for a period of twelve months;

c. She would continue to attend all appointments and follow medical advice and treatment;

d. Her line manager would carry out monthly reviews with her including a review of overtime hours allocated/worked;

e. That she was to inform her line manager of any concerns regarding her welfare so that appropriate action could be implemented;

f. She would inform her line manager of any future medical appointments that clashed with working hours and this would allow him to review/put required measures in place to support her;

g. He would review any future periods of absence to ensure that any linked cases were appropriately highlighted/acted on as appropriate;

h. The Claimant was encourage to contact counselling services;

i. There would be further consideration of working hours / patterns;

j. A reasonable adjustment and menopause risk assessment would be completed with the line manager

[88]At the end of the meeting, the Claimant’s Federation Representative highlighted that the SAP had been put in place before the Claimant’s surgical procedure, had not been reviewed and three elements had not been complied with:a. There had not been the monthly reviews, in the three months since her return to work in May;

b. The line manager had been to put in place required measures to support the Claimant in relation to related medical appointments; and

c. The line manager was to review future absence to ensure any linked cases were highlighted/acted upon, indicating that the Claimant’s absences had not been linked.

[89]She requested that the latest absence and further menopause-related absence should be recorded separately from other sickness absence as it was possible that the Claimant would have further absences. She recorded that the Claimant did not consider the written improvement notice and formal action to be supportive.

[90]The written improvement notice was not sent to the Claimant within 7 days of the meeting and it is an agreed fact that this was not in compliance with the PPR.

[91]Following the meeting, no risk assessment was completed, but the Claimant did have a further meeting with Inspector Williams on 22 January 2024 to discuss adjustments, subsequently completing a reasonable adjustment form on the same date [238] proposing the following adjustments:a. Menopause/disability related absences to be linked and treated as ongoing as opposed to isolated absences;

b. Homeworking to be specific to her and not just as a department;

c. Extra breaks as and when required and longer breaks;

d. That she be permitted to attend medical appointments in work time and not take TOIL or leave;

e. On days that she attended the office, that she be permitted to wear plain clothes

[92]The Claimant was sent a Wellness Plan on 2 February 2024 which she did not complete. Force Medical Assessment (“FMA”) : 27 February 2024

[93]On 27 February 2024, the Claimant had a Force Medical Assessment with Dr Steve Williams. Following that appointment a report was sent [273] which confirmed that in his opinion whilst the Claimant’s menopausal symptoms were likely to resolve, they required management and that she would require reasonable adjustments in the foreseeable future. He suggested that a reasonable adjustment might be to accept a higher than average level of sickness absence. Stage One Appeal

[94]The Claimant submitted her appeal to the Stage 1 outcome on 8 March 2024, a few days after receiving the written improvement notice following the Claimant’s Stage 1 meeting on 6 March 2024 [298]. The appeal was based on two grounds:a. That the finding of unsatisfactory attendance was unreasonable based on the fact that the informal supportive place of 21 March 2023 was not actioned adequately by SWP to ensure that she received sufficient support; and

b. That there was a breach of the procedures set out in the PPR.

[95]On 17 April 2024, the Claimant contacted ACAS and entered into early conciliation.

[96]Further representations were made by the Federation Representative by email on 25 April 2024 [308].

[97]On 3 May 2024, Chief Inspector Dean Thomas sent an email to the Claimant confirming that he had made a decision based on those representations confirming that there had been a breach of the PPR and that the written improvement notice was to be withdrawn and that a further meeting would be arranged with the Claimant and her representative.

[98]That meeting took place on 20 May 2024 and on 13 June 2024, the Claimant received an email confirming that consultant appointments would be accommodated within work time and that the latest menopause related absences would be linked within the HR IT systems. It was confirmed that any time off would continue to be managed within the Sickness Absence Procedure albeit that the number of absences in a rolling 12 months would be increased from 3-4 [327].

[99]Early conciliation ended on 29 May 2024 and on 21 June 2024, the Claimant issued her ET1 claim form.

[100]To complete the picture, the Claimant had no sickness absence between returning to work in December 2023 until the middle of September 2024, a period of nearly 10 months, was she signed absent from work through ill health, brought on she says by a menopause stress-induced migraine caused by drafting her disability impact statement for these proceedings. She not returned from that sick leave until the day prior to the commencement of this final hearing. Submissions

[101]The parties were directed to provide written submissions at the completion of the oral evidence and both Counsel filed detailed the Written Submissions by electronic copy on the morning of the third day. The Tribunal will not attempt to summarise those submissions, but incorporates them by reference.

[102]The Respondent’s Written Submissions ran to some 65 paragraphs/10 pages and the Claimant’s Written Submissions ran to some 99 paragraphs/18 pages.

[103]Rather than oral submissions, both Counsel preferred an approach of the Tribunal asking questions of clarification.

[104]In particular, Mr Ley-Morgan, Respondent’s Counsel clarified the following:a. The Respondent accepted that PCPs relied on were applied to the Claimant and in principle were capable of applying to persons who did not share the Claimant’s characteristic of disability of menopause symptoms. It was further conceded by the Respondent that the PCPs put those with the disability of menopause at the particular disadvantage of being more likely to have sickness absence due to the nature of their symptoms and/or impairments compared with persons without that disability.

b. Their arguments rested on the Claimant not having been actually placed at a disadvantage and/or in any event they relied on the proportionate aims of achieving the legitimate aim of maintaining attendance levels defence.

c. In terms of evidence to support their justification defence, the Respondent relied on the framework of absence monitoring including supportive meetings and trigger points that formed part of the process that could have been extended and enabled the Claimant to raise issues if she was struggling and focussed the parties on absence that would limit matters drifting. They relied on the evidence that this was just the first step and far from dismissal, albeit an eventual possibility, reminding us that this was an employee with 24 years’ service and a considerable amount of sickness absence. Given the level of the sickness absence, they submitted that it was proportionate and reasonable for this policy to be the means by which she is to be managed.

d. With the Section 15 EqA 2010 claim, it was submitted that that commencing a Stage 1 process and issuing a formal Written Improvement Notice was not unfavourable treatment as it was part of a supportive process.

e. With the s.20/21 EqA 2010 claims, again the Respondent concede that they applied the PCPs relied on and that these PCPs put the Claimant at a substantial disadvantage compared to someone without the Claimant’s disability. They did not dispute that they had both knowledge of disability and of the disadvantage of being unable to maintain attendance at the relevant times. Rather, as reflected in the written submissions they relied on the lack of disadvantage and that the adjustments were not reasonable adjustments and/or would not have avoided the disadvantage from the PCPs relied on.

[105]Mr Lewis-Bale, Counsel for the Claimant, also did not wish to supplement his written submissions, but clarified and corrected the following:a. He accepted that the Claimant had been unable to give live evidence as to when her symptoms commenced following her hysterectomy. She had not adduced evidence that she did not experience issues until ‘some weeks after the surgery’’ as reflected in the submissions1.

b. It was accepted by Mr Lewis-Bale, after a discussion of the Tribunal’s note of the live evidence of the Claimant (as well as Claimant’s Counsel and instructing solicitor for the Respondent considering their notes of the evidence,) that what he had put to Inspector Williams on cross examination; that the Claimant had given evidence that Inspector Williams had said to her that his wife had been through the menopause, had treatment and was ok, or words to that effect, had in fact been incorrect. It was further accepted that the Claimant’s evidence had been limited to saying only that Inspector Williams had said that his wife had been going through the menopause.

c. In relation to §17 and reference to ‘support measures’ in the formal WIN issued as an outcome to the Stage 1 meeting, the Claimant confirmed that all were /were intended to be supportive ((a) through to (h) [23]), but that some had not been implemented (a), (b) (d) and (j)). 1 Claimant Submissions §10

d. In clarifying the PCPs relied on, it was clarified that reference to the ‘strict’ application of the Sickness Absence Policy was to be construed as meaning the actual application of the Sickness Absence process and that this included the PCP that discretion was not exercised to link the absences.

e. In relation to the s.15 EqA 2010 claim, it was clarified that the Claimant was not relying on hospital appointments more generally but that the claim was limited to the hospital appointment on 2 January 2024 only2.

Relevant Law

[106]We have provided a brief reference to the relevant legal principles that is applicable in these complaints and the references to the various relevant case authority in the written submissions are incorporated by reference also. Indirect discrimination – s.19 Equality Act 2010

[107]S.19 of the Equality Act 2010 is in the following terms:-(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a 15 relevant protected characteristic of B’s.

(2) For the purposes of sub-section (1), a provision, criterion or practice is discriminatory in relation to a relevant characteristic of B’s if – (a) A applies, or would apply, if the person to whom B does not share the characteristic, (b) It puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with person with whom B does not share it, (c) It puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim.

[108]Ishola v Transport for London

[2020] IRLR 368

(CA) Paragraphs 35-39 the Court of Appeal confirmed that a one-off act could amount to a practice but it must be capable of being applied in future to similarly situated employees. 2 Claimant Submissions §55-58 Discrimination arising from disability – s15 EqA 2010

[109]Discrimination arising from disability is defined in s15 EA 2010: (1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B’s disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

[110](2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.

[111]Section 15(2) applies only if the employer did not know (and could not reasonably have been expected to know) about the disability itself.

[112]As for the correct approach when determining section 15 claims we refer to Pnaiser v NHS England and others

UKEAT/0137/15/LA

at paragraph 31. The relevant steps to follow are summarised as follows:a. the tribunal must identify whether there was unfavourable treatment and by whom – no question of comparison arises;

b. the tribunal must determine the cause of the treatment, which involves examination of conscious or unconscious thought processes. There may be more than one reason but the “something” must have a significant or more than trivial influence so as to amount to an effective reason for the unfavourable treatment;

c. motive is irrelevant when considering the reason for treatment;

d. the tribunal must determine whether the reason is “something arising in consequence of disability”; the causal link between the something that causes unfavourable treatment and disability may include more than one link – a question of fact to be assessed robustly;

e. the more links in the chain between disability and the reason for treatment, the harder it is likely to be able to establish the requisite connection as a matter of fact;

f. this stage of the causation test involves objective questions and does not depend on thought processes of the alleged discriminator;

g. knowledge is required of the disability only, section 15 (2) does not extend to requirement of knowledge that the “something” leading to unfavourable treatment is a consequence of disability;

h. It does not matter precisely which order these questions are addressed. Depending on the facts the tribunal might ask why the respondent treated the claimant in an unfavourable way in order to answer the question whether it was because of “something arising consequence of the claimant’s disability”. Alternatively, it might ask whether the disability has a particular consequence for a claimant that leads to “something” that caused the unfavourable treatment.

[113]When considering justification, the role of the Tribunal is to reach its own judgment, based on a critical evaluation, balancing the discriminatory effect of the act with the business/organisational needs of the Respondent. Failure to make reasonable adjustments –s20 and s21 EqA 2010

[114]The duty comprises three requirements and we are looking at the first requirement only which is a ‘requirement where a provision, criterion or practice 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’ (s20(3) EqA 2010)

[115]Guidance on the approach to be taken in reasonable adjustment claims has been given by the EAT in the Environment Agency v Rowan

2008 ICR 218

which has stated that an Employment Tribunal must considera. the PCP applied on behalf of the employer;

b. then identity if appropriate of a non-disabled comparator; and

c. the nature and effect of the substantial disadvantage suffered by it.

[116]In HM Prison Services v Johnson

2007 IRLR 951

Mr Justice Underhill stated that it was necessary for a Tribunal to identify with some particularity what ‘step’ it is that the employer has said to have failed to take in relation to the employee.

[117]The onus is on the claimant to identify in broad terms at least the nature of the adjustment or step that would ameliorate the disadvantage. The burden then shifts to the respondent to show the disadvantage would not have been eliminated or reduced for the proposed adjustment and/or that the adjustment was not a reasonable one. s.26 EqA 2010 - Harassment

[118]Section 26 of the Equality Act defines harassment under the Act as follows:(1) A person (A) harasses another (B) if A engages in unwanted conduct related to a relevant protected characteristic [which includes the protected characteristic of sex], and the conduct has the purpose or effect of violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B

(2) A also harasses B if A engages in unwanted conduct of a sexual nature, and the conduct has the purpose or effect referred to in subsection (1)(b).

(3) A also harasses B if A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex, the conduct has the purpose or effect referred to in subsection (1)(b), and because of B’s rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.

(4) In deciding whether conduct has the effect referred to in subsection 1(b), each of the following must be taken into account the perception of B; b) the circumstances of the case; c) whether it is reasonable for the conduct to have that effect.

[119]EHRC Code Part 7 provides that unwanted conduct ‘related to’ a protected characteristic has a broad meaning in that the conduct does not have to be because of the protected characteristic. The broad nature of the ‘related to’ element means that a finding about what is the motivation of the individual is not the only possible route to the conclusion that the conduct in question is related to the particular characteristic but nevertheless there must still be some feature of the factual matrix identified by the Tribunal which properly leads it to the conclusion that the conduct is related to the protected characteristic and the Tribunal must articulate what those features are (Tees Esk and Wear Valleys NHS Foundation Trust v Aslam

[2020] IRLR 495

). Conclusions Indirect Discrimination

Conclusions

[120]It is conceded by the Respondent that the Respondent applied the following PCPs to the Claimant:a. The strict application of the absence management policy and the failure to recognise the Claimant’s absences as linked; and

b. The application of the strict attendance plan in which the Claimant was attendance at an acceptable level for 12 months among other stipulations.

[121]It was also acknowledged by the Respondent, that despite the pleaded PCPs specifically referencing the Claimant, no issue was taken on that point and it was further conceded by the Respondent that:a. the Respondent applied (or would apply) both PCPs3 to persons with whom the Claimant did not share the characteristic of her disability, and

b. that the PCPs put persons with the Claimant’s disability at a particular disadvantage when compared with persons without a disability, in that they were more likely to be subject to increased sickness absence and in turn, be more likely to be subject to a formal sickness absence process.

[122]There was also no issue taken by the Respondent regarding the interpretation of the ‘strict’ elements of the PCPs as pleaded and it was accepted that this was taken to mean the actual application of the Sickness Absence Procedure and/or the attendance plans.

[123]Counsel for the Respondent clarified his written submissions and confirmed that the issues for determination by the Tribunal was whether the PCPs put the Claimant at that disadvantage, which was disputed, and if necessary, whether the PCPs were proportionate means of achieving the stated legitimate aims.

[124]In relation to the first PCP, the Claimant argues that a ‘strict’ application of the Sickness Absence Procedure caused a disadvantage to the Claimant as the consequence was that:a. she was placed on a Stage 1 process; and

b. no allowance was given for linking the Claimant’s absences in January-May and November-December; that Inspector Williams’ strict interpretation of when absences could be linked, based on the amount of time passing between them, was an incorrect application of the policy; that he should have exercised his discretion and that he did not, amounted to indirect disability discrimination. 3 It was clear that the first PCP also included reference to the failure to recognise absences as linked, and not an issue for determination by the Tribunal.

[125]As a result, we focussed on the decision to hold a Stage 1 meeting and the subsequent formal Written Improvement Notice issued by Inspector Williams on 11 January 2024, on the basis that there was no issue regarding ‘linking’ of absences at the March 2023 informal management intervention.

[126]The Respondent argues that the Claimant had not been placed at a ‘substantial disadvantage’ as she had agreed to the supportive plan and that placing her on a formal Stage 1 was a supportive measure; that the plan was not unreasonable as she had no sickness absence for 6 months and had met the 3 month attendance criteria regarding no absence for the first 3 months. They say, linking of absences was only permitted where they are reasonably close and a gap of 6 months was not ‘reasonably close in time’; that the formal action plan had a number of supportive measures that could be reviewed and that the Stage 1 was in any event set aside before the Claimant issued this claim.

[127]In addition to showing group disadvantage (which has been conceded,) the Claimant is not required to demonstrate that she has been subjected to a substantial disadvantage, as submitted by Respondent Counsel. She only has the burden of showing that she has experienced or would have experienced the same personal disadvantage as the group disadvantage, albeit leaving it open for an employer to argue that the employee has not in fact suffered the harm as a result of the PCP in question.

[128]The Claimant had been placed on a formal Stage 1 process and at some stage had been subjected to a formal Written Improvement Notice and we did not consider that it was relevant that such a notice had been subsequently set aside on appeal for the purposes of being able to bring this claim.

[129]We concluded that the Claimant had demonstrated, that by commencing the Stage 1 formal absence management procedure, and issuing a formal written improvement notice (after not linking the two absences) which set out an attendance plan, that the Claimant had to adhere to in order to maintain her attendance otherwise further formal action would be taken, the Claimant had been subjected to the same persona disadvantage as the group disadvantage that had been conceded.

[130]Whilst we did not consider that the totality of the action plans set out in either the SAP or the later Written Improvement Notice were disadvantageous, in that they set out supportive measures for the Claimant aimed at enabling her to remain in work (as accepted by the Claimant,) we did consider that it was disadvantageous to:a. be set attendance targets;

b. subsequently be placed on a staged procedure; and

c. receive any written improvement notice.

[131]It started a formal process for the Claimant that was a pathway, if attendance did not improve, that could eventually lead to dismissal and as such, being placed on any improvement plan would in our view be reasonably construed as unfavourable treatment.

[132]The Respondent argues that linking of absences was only permitted when they were reasonably close, and that a gap of 6 months was not ‘reasonably close in time’ and that the interpretation of the Sickness Absence Policy in relation to ‘linking’ did not put the Claimant had a substantial disadvantage in that:a. the Stage 1 process was a supportive measure;

b. the Claimant had no sickness absence, from December 2023 until 10 months’ later in September 2024 (thereby meeting the attendance criteria of no absence for 3 months (set out in the written improvement notice) and had been close to achieving the 12 month attendance criteria);

c. that the formal written improvement notice had review amendment provisions;

d. the written improvement notice had in fact been set aside and no further action had been taken before the Claimant had issued her claim.

[133]Whilst the Claimant accepted in submissions that the content of the written improvement notice, emanating from the Stage 1 meeting and including the attendance targets was intended to be supportive and enable her to remain in work, a matter accepted in submissions, we concluded that the failure to link disability related absences did cause the Claimant a disadvantage in that she was then subjected to the formal Stage 1 process as a result. Second PCP

[134]In relation to the second PCP, of maintaining her attendance for three months and to maintain attendance at an acceptable level for 12 months, we concluded that the Claimant did not suffer a personal disadvantage in relation to the first criterion of maintaining her attendance for three months as she had in fact complied:a. She maintained her attendance for three months following the initial informal SAP put in place by Inspector Thomas on 21 March 2023 and had no sickness absence in the first three months following her return to work on 23 May 2023.; and

b. she had also met the 3 month criteria with the formal written improvement notice put in place at the meeting on 11 January 2024.

[135]Whilst the Claimant accepted that the targets were intended to be supportive, she did not meet the second attendance target criterion in that:a. She did have a period of disability related sickness absence after 6 months after her May 2023 return; and

b. Had a period of sickness absence, following her November 2023 absence after ten months, when she was absent from work in September 2024.

[136]As a result, we concluded that this second 12-month attendance target therefore did personally disadvantage the Claimant as she did fail to reach this target and this failure did and would likely trigger a further absence management process under the Respondent’s policy. Justification

[137]We then considered whether the Respondent had justified either PCP on the basis of a proportionate means of achieving a legitimate aim, acknowledging that in deciding what was proportionate required us to objectively balance the discriminatory effect of the measure on the Claimant and determine whether that outweighed the needs of the undertaking of the Respondent. We also reminded ourselves of the key elements of the test of objective justification derived from Bilka-Kaufhause GmbH v Webbe.

[138]We analysed the aims put forward by the Respondent, noting that the Claimant had not challenged that the Respondent’s aims were capable of amounting to legitimate aims. We accepted that the aims were legal, were not in themselves discriminatory and represented real objective consideration. We accepted that an organisation such as SWP, holding the public purse had self-evident reasonably necessary needs to maintain appropriate levels of attendance in its organisation and that this could be achieved through the implementation of its Sickness Absence Procedure coupled with supportive plans. We were satisfied that they corresponded with a real need on the part of the SWP and were appropriate.

[139]We then considered whether the means of achieving those aims were proportionate.

[140]The Claimant argues that it would be a more proportionate approach to permit the absences to be linked and managed as a disability allowing the Claimant a slightly higher sickness record.

[141]In addition to its discrete arguments on the proportionate means, the Respondent relies on its arguments on disadvantage We were reminded of the Claimant’s considerable sickness absence and that a considerable proportion had been through menopause related issues and that use of the policy was proportionate and that whilst dismissal was a theoretic possibility, such an outcome was unlikely taking into account their management of the Claimant’s sickness absence over the previous 24 years.

[142]We were reminded that the Sickness Absence Policy provides for linkage when absences are reasonably close and that Inspector Williams did give consideration to whether to exercise a discretion regarding linking and it was reasonable for him to not exercise his discretion to link taking into account the gap of 6 months. We were also reminded that the Claimant had met the initial attendance target and having substantial periods in work following each return to work whilst working considerable overtime and that this demonstrated that both the application of the Sickness Absence (which included a decision not to link the disability related absences in 2023) and the targets were not unreasonable.

[143]We concluded that the Respondent had demonstrated that the means used in this case were proportionate and outweighed any disadvantage to the Claimant. In reaching this conclusion we considered:a. The discriminatory effect of the PCPs on the group generally affected by the PCPs as well as the effect on the Claimant. The Sickness Absence Procedure had flexibility built in to accommodate and ameliorate the potentially discriminatory group disadvantage for those employees with menopause-related disabilities such that the Trigger Points had discount provisions and the policy had express provisions for discounting of absences, in relation to linking of absences and discounting disability related absences and that trigger points and any attendance plans were to be individualised.

b. With regard to the impact on the Claimant, this was an employee who had already had considerable sickness absence, in relation to her absence at the Stage 1 meeting, amounting to 162 days in the previous 365 days relating to menopause symptoms. Whilst the initial Bradford Score Trigger was 200+, by the date of the Stage 1, her Bradford Score was in excess of 700 points.

c. We did not consider that in the context of the Claimant having returned to work early after her operation, indicating no symptoms to her managers and choosing to work considerable overtime, a decision not to link an absence 6 months later was an irrational or perverse decision and did not prevent any consideration at any stage or later stage of the process of the fact that the absences were disability-related. In the context of the Claimant being in work without issue for 6 months, it was a proportionate response.

d. We did not consider a less discriminatory measure, of linking the two absences or discounting such disability-related absence, to be effective in managing this individual’s absence at this stage. We remind ourselves however that an employer is not required to prove that there was no other way of achieving its objectives and that such provisions were already built into the Respondent’s Sickness Absence policy. To not manage the Claimant’s absence or permit flexibility such that all disability-related absences should be ignored or automatically linked, would not meet the aims of the employer in managing significant sickness absence.

e. In considering the discriminatory effect on the Claimant, the attendance targets had been met in part and the Claimant was close to meeting the second attendance target following the Stage One meeting, the stress of preparing for this employment tribunal claim appearing to impact on her ability to attend work, as she had indicated to us that the preparation of her disability impact statement had caused her stress.

f. We did not consider that there was anything in the conduct of the management of the Respondent that was inappropriate. Whilst the Respondent does not have a discrete menopause policy, it does have range of menopause support guidance for managers and encourages Menopause Champions. There was nothing in either Inspector Thomas’ or Inspector Williams conduct that was inappropriate and it was accepted that the SAP and written improvement notice were intended to be supportive with a view to encouraging the Claimant to remain in work.

[144]We therefore concluded that the Respondent had discharged the burden of shoring that the PCPs applied was a proportionate means of achieving its legitimate aim and therefore the claim of indirect disability discrimination is not well founded and is dismissed. Discrimination Arising from Disability

[145]Knowledge is not in dispute and it was accepted by the Respondent that the Claimant’s sickness absences and/or hospital appointment on 2 January 2024, arose in consequence of her disability.

[146]We then considered whether the Respondent treated the Claimant unfavourably as pleaded, namely by commencing the stage 1 formal absence management procedure and issuing a formal written improvement notice which set out a stringent action plan that the Claimant had to adhere to in order to maintain her attendance, otherwise further formal action would be taken.

[147]We repeat our conclusions in relation to disadvantage in relation to the s.19 EqA 2010 claim. Whilst we did not consider that the totality of the action plan, set out in the Written Improvement Notice, was unfavourable in that it set out supportive measures for the Claimant aimed at enabling her to remain in work (as accepted by the Claimant,) we did consider that being placed on a staged procedure, without linking the absences and receiving any written improvement notice would amount to unfavourable treatment: It started a formal process for the Claimant that was a pathway, if attendance did not improve, that could eventually lead to dismissal and as such, being placed on any improvement plan would in our view be reasonably construed as unfavourable treatment.

[148]We concluded therefore that the unfavourable treatment arose from the Claimant’s disability-related absence.

[149]We then considered whether the Respondent could demonstrate that the treatment was a proportionate means of achieving the legitimate aims relied on of:a. Effectively managing sickness absence in its organisation;

b. The provision and/or operation of an efficient and effective police service to the public; and

c. Maintaining public confidence in ensuring appropriate levels of attendance from staff

[150]Again, the Claimant had not challenged that these were legitimate aims and in any event we were persuaded that they were for the same reasons that we had found the more limited legitimate aims in relation to the s.19 EqA 2010 claim.

[151]We then considered whether the Respondent had adopted proportionate means to achieve that aim and balanced the needs of the Respondent against the discriminatory effect on the Claimant. We concluded that balance had been achieved for the same reasons as set out in our consideration on the Claimant’s indirect discrimination complaint.

[152]We then considered whether the Claimant was required to take TOIL or other leave in order to attend the hospital appointment on 2 January 2024, having clarified with the Claimant’s representative that this claim was specifically and only related to that appointment, having been granted Special Leave on subsequent appointments.

[153]We concluded on the facts that the Claimant had not proven on the facts that she had been required to take TOIL or other leave, to attend that appointment. Rather, we concluded and based on our findings in relation to the email exchange that had preceded that appointment on 19/20 December 2023, that the Claimant had in fact chosen to take annual leave, rather than clarify the position regarding the nature of the appointment after having been asked to do so by Inspector Williams, when she may have been provided with Special Leave and / or swapping her rest day.

[154]On that basis, this second complaint under s.15 EqA 2010 also fails. Failure to make reasonable adjustments

[155]It was conceded that the Respondent applied the PCPs of:a. The strict application of the absence management policy and the failure to recognise the Claimant’s absences as linked; and

b. The application of a strict attendance plan in which the Claimant was attendance at an acceptable level for 12 months amongst other stipulations.

[156]It was disputed that either put the Claimant at a substantial disadvantage. We repeat our conclusions in relation to the s19 EqA 2010 complaints and concluded that the PCPs had placed the Claimant at a substantial disadvantage.

[157]We therefore concluded that the duty to make reasonable adjustments had been triggered. Knowledge of both disability and of any substantial disadvantage is not in dispute, the Respondent conceding knowledge on both issues.

[158]In relation to the first adjustment, we accepted that the Claimant had not sought an adjustment to the Sickness Absence management triggers themselves in terms of Bradford Score etc. Rather, she sought an adjustment to the Sickness Policy Procedure and/or any staged plans, more generally to ensure that that all disability related sickness absence, whenever arising in the future be linked and that any disability related absences be treated as ongoing rather than as isolated incidents.

[159]We accepted in principle the theoretical arguments put forward by the Respondent, that a decision to link all future disability-related absences without limitation potentially had the consequence that if absent for disability-related reasons, the ‘S’ factor on her Bradford score would never be more than one, potentially resulting in sickness absence which would be difficult to manage under the Respondent’s policies. We concluded that the Sickness Absence Procedure included provision to link disability related absences and/or ignore absences that were disability-related on an instance by instance basis, and that to impose an adjustment, whereby this was effectively automatic and unlimited in time was not a reasonable adjustment.

[160]The claim for this adjustment therefore was not well-founded and was dismissed.

[161]In relation to the adjustment of enabling the Claimant to work from home as required, as opposed to as required by the department; effectively agreeing that the Claimant could work from home at any time in any role within the SWP, we concluded was not a reasonable adjustment that was required to remove or ameliorate the disadvantage of the PCPs relied on.

[162]The Claimant did in fact work from home and only required to attend headquarters one in every 10 days, a requirement that she accepted did not disadvantage her. We failed to understand how this suggested reasonable adjustment, in the context of the factual reality of the Claimant’s homeworking whatever the arrangement, would ameliorate or remove the disadvantage caused by these PCPs.

[163]Clearly, if the policy on homeworking should change and the Claimant is obliged to return to the office on a permanent or more regular basis such that she considers that such a requirement is disadvantaging her at that point, she is entitled to seek such an adjustment to such a policy. That has not yet arisen.

[164]The claim for this adjustment therefore was not well-founded and was dismissed.

[165]Regarding being permitted to take additional breaks and longer breaks, we had found that the Claimant had chosen to work substantial overtime, around 40 hours per week. We were not persuaded that the Claimant had provided any evidence to indicate that any more breaks would have enabled her to achieve attendance in line with the Sickness Absence Policy. Again, we were persuaded that this adjustment would not have removed or ameliorated the PCPs relied on.

[166]In any event, regular short and reasonable breaks when working from home were encouraged and permitted, such as time away from her desk to make a drink or go outside, and meal breaks were in accordance with her entitlements in working a 10 hour shift and it had been proposed that if additional breaks were required beyond that then a review of her 10 hour shift would be conducted.

[167]The claim for this adjustment therefore was not well-founded and was dismissed.

[168]We concluded that there was no evidence before us to demonstrate that the suggested adjustment, of enabling the Claimant to attend medical appointments without the requirement to take TOIL or leave, would have removed or ameliorated any PCPs’ disadvantage in relation to increased sickness absence.

[169]The Claimant was not required to take TOIL or leave to attend the appointments, The Claimant could attend medical appointments in her own time, on rest days and was not required to take leave or TOIL. She chose to work rest days when she should be recuperating and again, we did not accept that this adjustment would have ameliorated or removed any disadvantage caused by the pleaded PCPs.

[170]This was not also not well-founded and was dismissed. Harassment

[171]We accepted that the content of emails from Inspector Williams on 19 December 2023, in suggesting that the Claimant following the Claimant’s request to take special leave for a medical appointment with a consultant, was unwanted.

[172]We concluded that the content of the emails from Inspector Williams could not be said to be related to disability at any point before the Claimant had forwarded her exchange with Julie Reilly to him, alerting him to the possible link to her menopause symptoms in that she indicated that her bladder issues arose since her hysterectomy, her hysterectomy relating to her menopause symptoms. The content was wholly unrelated to disability until that point.

[173]Thereafter, we accepted that it could be said that there was a connection to the Claimant’s disability, although whether that was self-evident to Inspector Williams at the time, we were less convinced about. We were not persuaded that the Claimant had demonstrated that the purpose of any conduct was to create the statutory environment.

[174]However, the claim that the content of the email amounted to harassment fails on the following basis:a. There was no evidence that the conduct had either the effect of violating the Claimant’s dignity or creating an intimidating, degrading, humiliating, hostile and/or offensive environment for the Claimant, a point conceded by her Counsel. She had provided no evidence on this point, her witness statement recounting what had arisen not the effect on her. It was not selfevident that such an exchange would have the purpose or effect of creating the requisite statutory environment.

b. Despite that conclusion, the complaint of harassment would have failed in any event taking into account all the circumstances that included the facts relied on by the Respondent that: i. The Claimant could reasonably have arranged for a private appointment on one of her rest days; ii. Where the Claimant was insisting on Special Leave, it was not unreasonable for Inspector Williams to ask for confirmation that she could attend on her own time, including re-arranging rest days; iii. It was not unreasonable for Inspector Williams to ask for clarification as to why the appointment was disability-related. It was not self-evident. iv. We would not have considered in those circumstances, it reasonable for such conduct to have had requisite statutory effect on the Claimant.

[175]The final complaint of harassment related to disability (s.26 EqA 2010) is also not well founded and is too, dismissed.

[176]In conclusion and in summary, the Claimant’s claims in relation to all complaints brought are not well-founded and are dismissed.