Mrs G Sowden v Optimal Recruitment Solutions Ltd: 1800763/2023

EMPLOYMENT TRIBUNALS

Case No 1800763/2023

Between

Mrs G SowdenClaimant

Optimal Recruitment Solutions LtdRespondent

Before

Employment Judge Brain

In person for claimant

Date 28 August 2024

JUDGMENT

[1]It is just and equitable to extend the limitation period to 21 March 2023 for the presentation of the claimant’s claim brought under the Equality Act 2010.

[2]The Tribunal has no jurisdiction to consider the claimant’s complaint of unfair dismissal brought pursuant to the Employment Rights Act 1996 upon the basis that: 2.1. The claimant does not have the two years of qualifying service necessary to bring the claim; and 2.2. The claim was presented outside the limitation period in section 111 of the 1996 Act in circumstances where it was reasonably practicable for her to have presented the claim in time.

[3]The claimant’s complaints for breach of contract pursuant to the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 and that the respondent made an unauthorised deduction from her wages brought pursuant to the 1996 Act were presented within the relevant limitation periods. (This finding applies only to the claims which relate to commission for work which the claimant says was undertaken by her where the entitlement to a commission payment crystalised in September 2022 and was payable in the October 2022 pay run). Case Number: 1800763/2023

[4]The claimant’s complaints brought under the jurisdictions referred to in paragraph 2 in respect of commission payments where the entitlement crystalised prior to September 2022 were presented outside the limitation period in circumstances where it was reasonably practicable for them to have been brought in time.

[5]The claimant’s complaint that she was wrongfully dismissed as the respondent summarily terminated her employment on 21 September 2022 in circumstances where she was not liable to summary dismissal was brought outside of the limitation period in the 1994 Order in circumstances in which it was reasonably practicable for that claim to have been brought in time. Accordingly, the Tribunal has no jurisdiction to consider the claim.

[6]Optimal Recruitment Solutions Ltd are joined into the proceedings in substitution for Optimal HR Services Ltd. EMPLOYMENT TRIBUNALS Claimant Respondent Mrs G Sowden v Optimal Recruitment Solutions Ltd PRELIMINARY HEARING Heard at Sheffield by CVP On: 13 July 2023 Before: Employment Judge Brain Appearance: For the Claimant: In person For the Respondent: Miss M Stead, Director Mrs H Naylor, Operations Director

[1]The claimant presented her claim form on 25 January 2023. Before doing so, she went through mandatory early conciliation as required by the Employment Tribunals Act 1996. Early conciliation commenced on 27 September 2022 and ended on 10 October 2022.

[2]The claim form named two respondents: Optimal HR Services Ltd and Melanie Stead. On 7 March 2023 the claim form was rejected upon the direction of Legal Officer Woolley upon the grounds that there was no early conciliation certificate naming Miss Stead as a prospective respondent and that the name of the other respondent (the claimant’s employer) differed as between the early conciliation certificate and the claim form. The claimant was told that she had 14 days to apply for a reconsideration. She did this on 21 March 2023.

[3]On 6 April 2023 Employment Judge Rogerson directed that the claimant’s claim as against Optimal HR Services Limited was accepted with effect from 21 March 2023.

[4]Upon receipt of the respondent’s notice of appearance, it appeared that the claimant’s claims may have been brought outside the relevant limitation periods applicable to the claimant’s several claims. Accordingly, the case was listed for today to decide whether some or all of the claims were brought out of time and if so whether time should be extended under the relevant statutory provisions. The 1 ph outcome re case management Nov 2014 version Tribunal’s determination upon this issue is in the judgment given during the course of this morning’s hearing.

[5]In summary, the claims which are permitted to proceed are: 5.1. Discrimination and harassment brought pursuant to the Equality Act 2010. 5.2. Breach of contract and that the respondent made an unauthorised deduction from wages brought pursuant to the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 and the Employment Rights Act 1996 respectively. This is confined to the claimant’s claim for commission payable at the end of October 2022 for work completed in September 2022. (The respondent says that no commission was due to the claimant for work completed in September 2022 as the supplier with whom the claimant was dealing went into administration and therefore no placements were made. The respondent volunteered to demonstrate this to the claimant by giving early voluntary disclosure. Should the clamant accept the respondent’s case upon this point, then she may write to withdraw the breach of contract and unauthorised deduction from wages complaint). 5.3. The respondent’s counter claim for the repayment of a loan made to her by the respondent and for damage to the respondent’s property (in particular, a mobile telephone).

[6]Some time was spent this morning (before the time limit issue was decided) identifying the claimant’s claims. The issues shall now be set out.

[1]Disability 1.1 Did the claimant have a disability as defined in section 6 of the Equality Act 2010 at the time of the events the claim is about? This appears primarily to be about events in August and September 2022. The Tribunal will decide:1.1.1 Did the claimant have a physical or mental impairment: in this case, the disability in issue is anxiety?

1.1.2 Did the impairment have a substantial adverse effect on her ability to carry out day-to-day activities?

1.1.3 If not, did the claimant have medical treatment, including medication, or take other measures to treat or correct the impairment?

1.1.4 Would the impairment have had a substantial adverse effect on her ability to carry out day-to-day activities without the treatment or other measures?

1.1.5 Were the effects of the impairment long-term? The Tribunal will decide:1.1.5.1 did the effects of the impairment last at least 12 months, or were they likely to last at least 12 months?

1.1.5.2 if not, were they likely to recur? 2 ph outcome re case management Nov 2014 version

[2]Discrimination arising from disability (Equality Act 2010 section 15)2.1 Did the respondent treat the claimant unfavourably by: 2.1.1 Dismissing her on 21 September 2022.

2.2 Did the following things arise in consequence of the claimant’s disability: 2.2.1 The claimant’s sickness absence from around 5 August 2022.

2.3 Was the unfavourable treatment because of the matters identified in sub paragraph 2.2? Did the respondent dismiss the claimant because of her sickness absence?

2.4 Was the treatment a proportionate means of achieving a legitimate aim? The respondent says that its aims were: 2.4.1 The efficient running of their business.

2.5 The Tribunal will decide in particular:2.5.1 was the treatment an appropriate and reasonably necessary way to achieve these aims;

2.5.2 could something less discriminatory have been done instead;

2.5.3 how should the needs of the claimant and the respondent be balanced?

2.6 Did the respondent know or could they reasonably have been expected to know that the claimant had the disability? If so, from what date?

[3]Reasonable Adjustments (Equality Act 2010 sections 20 & 21)3.1 Did the respondent know, or could they reasonably have been expected to know that the claimant had the disability? From what date?

3.2 A “PCP” is a provision, criterion or practice. Did the respondent have the following PCPs:3.2.1 Requiring the claimant to attend the respondent’s offices to undertake her role as a senior recruitment consultant.

3.2.2 Their attendance management policy.

3.3 Did the PCPs put the claimant at a substantial disadvantage compared to someone without the claimant’s disability, in that the disability made it difficult to maintain regular attendance at the office and rendered her 3 ph outcome re case management Nov 2014 version more liable than a non-disabled person would be to find herself being managed pursuant to the absence management policy.

3.4 Did the respondent know, or could they reasonably have been expected to know that the claimant was likely to be placed at the disadvantage?

3.5 What steps could have been taken to avoid the disadvantage? The claimant suggests:3.5.1 Being permitted to work from home.

3.5.2 Deferring management of her under the attendance management policy.

3.5.3 Postponing any work, health or return to work meetings until the claimant was fit to deal with them.

3.6 Was it reasonable for the respondent to have to take those steps and when? The respondent says that a number of steps were taken by them to seek to avoid the disadvantage including permitting the claimant to work from home (which the claimant disputes), arranging counselling for her and providing other support.

3.7 Did the respondent fail to take such steps as were reasonable to ameliorate the disadvantage caused to the claimant?

[4]Harassment related to disability (Equality Act 2010 section 26)4.1 Did the respondent do the following things: 4.1.1 Mel Stead saying on 12 August 2022, “you’re not about to have a breakdown Georgie, you are in a breakdown.”

4.2 If so, was that unwanted conduct?

4.3 Did it relate to the claimant’s disability etc?

4.4 Did the conduct have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant?

4.5 If not, did it have that effect? The Tribunal will take into account the claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.

[5]Remedy for discrimination or victimisation 4 ph outcome re case management Nov 2014 version5.1 Should the Tribunal make a recommendation that the respondent take steps to reduce any adverse effect on the claimant? What should it recommend?

5.2 What financial losses has the discrimination caused the claimant?

5.3 What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that?

[6]Unauthorised deductions/Breach of Contract 6.1 Did the respondent make unauthorised deductions from the claimant’s wages and if so how much was deducted? Was the respondent in breach of contract in failing to pay the wages in question? (The wages in question are commission payments which the claimant says were due to her for work completed in September 2022 payable on or around 29 October 2022)?

[7]Employer’s Contract Claim7.1 Was the claimant in breach of contract by failing to repay to the respondent a loan advanced to her and for damage allegedly caused by her to a mobile telephone belonging to the respondent.

7.2 If so, how much should the respondent be awarded as damages? 7. Having identified the issues in the cases the Tribunal gives the following case management directions: ORDERS Made pursuant to the Employment Tribunal Rules 2013

[1]On or before 27 July 2023 the claimant shall send to the respondent and to the Employment Tribunal her defence to the respondent’s counter claim.

[2]On or before 27 July 2023 the claimant shall send to the respondent and to the Employment Tribunal her schedule of loss. This shall set out how much compensation for lost earnings or other losses the claimant is claiming and how the amount is calculated.

[3]On or before 25 August 2023 the claimant shall serve upon the respondent relevant medical evidence together with a witness statement in support of her case that she was a disabled person for the purposes of the 2010 Act at the material time (that is to say, in August and September 2022). The statement shall address the issues in sub paragraph 1 of paragraph 6 above. The claimant may find it helpful to refer to the “Guidance on matters to be taken into account in determining questions relating to the definition of disability” (2011) published by the Secretary of State and which is available upon the internet. The claimant 5 ph outcome re case management Nov 2014 version shall give evidence of how long she has had the relevant disability, the effects of it upon her ability to do day to day activities and why she says the effects are long term (that is to say, that at the relevant time they had lasted longer than 12 months and were likely to last longer than 12 months)? so the claimant shall give clear examples of the impact of the disability upon her day to day activities at the relevant time. In general, day-to-day activities are things people do on a regular or daily basis, and examples include shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities. Normal day-to-day activities can include general work-related activities, and study and education-related activities, such as interacting with colleagues, following instructions, using a computer, driving, carrying out interviews, preparing written documents, and keeping to a timetable or a shift pattern.

[4]On or before 29 September 2023 the respondent shall write to the Employment Tribunal and to the claimant setting out their position upon disability. In particular, the respondent will say whether they accept that the claimant was a disabled person within the meaning of section 6 of the 2010 Act at the material time.

[5]There shall be a further case management hearing. This shall be conducted by telephone and shall be held on 6 October 2023 commencing at 10am with an estimated length of hearing of 90 minutes. At the case management hearing, the Tribunal shall give directions with a view to listing the case for a final hearing or alternatively (if disability remains in dispute) for a preliminary hearing to decide upon that question.

[1]the claimant was a disabled person at the material time by reason of anxiety;

[2]the correct respondent and employer of the claimant is ‘Optimal Recruitment Solutions Limited’;

[3]The claimant’s application to add Melanie Stead as a second respondent fails and is dismissed.

REASONS

There is no reasonable prospect of the original decision(s) being varied or revoked, because:

[1]I have considered the claimant’s application for reconsideration of the Judgments in this matter. The application was emailed by the claimant and received by the Tribunal on 9 September 2024. It consists of a page of tightly typed submissions. I have taken the contents of the application into account. Rules of Procedure

[2]Rule 72(1) of the 2013 Rules of Procedure empowers me to refuse the application without convening a reconsideration hearing if I consider there is no reasonable prospect of the original decision being varied or revoked.

[3]The test is whether it is necessary in the interests of justice to reconsider the Judgment (rule 70). Broadly, it is not in the interests of justice to allow a party to reopen matters heard and decided, unless there are special circumstances, such as a procedural mishap depriving a party of a chance to put their case or where new evidence comes to light that could not reasonably have been brought to the original hearing and which could have a material bearing on the outcome.

Background

[4]The claimant presented her claim under case number 1800763/2023, to the Leeds Employment Tribunal on 25 January 2023, comprising complaints of unfair dismissal, disability discrimination, breach of contract and unpaid wages. By a response dated 4 May 2023, the respondent presented an employer’s contract claim which was given case number 1803902/20230.

[5]On 13 July 2023, both cases proceeded to a preliminary hearing before Employment Judge Brain. At that stage, the respondent did not have legal representation. Employment Judge Brain gave Judgment, sent to the parties on 26 July 2023, to the effect that only the complaints of disability discrimination and breach of contract/unpaid wages should proceed with the latter limited to a complaint about commission for work undertaken in September 2022 for which payment was due in October 2022. All other complaints were ruled as being out of time and/or that the Tribunal lacked jurisdiction. The employer’s contract claim also proceeded.

[6]On 27 November 2023, a case management preliminary hearing took place before Employment Judge Miller.

[7]Thereafter, a conflict arose because the respondent instructed a solicitor who is a relative of Employment Judge Brain. As a result, the case files were transferred from the Leeds Employment Tribunal region to the Manchester Employment Tribunal region.

[8]On 28 August 2024, I conducted a preliminary hearing at which I gave Judgment on the employer’s contract claim and also, upon application by the claimant, I conducted a reconsideration of the decision of Employment Judge Brain as to the correct identity of the respondent employer. As explained in my orders resulting from that preliminary hearing, it was not practicable for Employment Judge Brain to reconsider the decision in issue due to the conflict arising. I sought guidance from my Regional Employment Judge who appointed me to deal with the reconsideration application pursuant to Rule 72(3) of the Employment Tribunal Rules of Procedure.

[9]By the same token, I am appointed to deal with the claimant’s renewed application for reconsideration sent to the Tribunal on 9 September 2024. The application

[10]The claimant’s application seeks a reconsideration of the decision of Employment Judge Brain as to which complaints should proceed and the extent of them, in particular the breach of contract/unpaid wages complaint. The claimant contends that her complaint of breach of contract was allowed by Employment Judge Brain in respect of her last month’s wages.

[11]The claimant also contends that she had requested that the loan monies, sought from her under the employer’s contract claim, should be deducted from her last month’s pay. In those circumstances, the claimant contends that my Judgment on the employer’s contract claim should be “put on hold”.

[12]Despite the points raised in her application, there is no reasonable prospect of the claimant establishing that the Tribunal made an error of law, or that my Judgment on the employer’s contract claim was perverse. It is not in the interests of justice to reopen such mattes once decided.

[13]On 13 July 2023, Employment Judge Brain heard submissions on the issue of whether the claimant had brought each of her claims in time taking account of the applicable statutory time limits. He determined that the complaints of breach of contract/unpaid wages were presented within the relevant limitation periods, but that this finding applied only to that part of the claim which relates to commission for work undertaken where the entitlement to a commission payment crystalised in September 2022 and was payable in the October pay run. As Employment Judge Brain described it, the complaints should be “… confined to the claim for commission payable at the end of October 2022 for work completed in September 2022.” – see the case management summary from that hearing, paragraph 5.2.

[14]On 28 August 2024, when I asked about the substance of the employer’s contract claim, the claimant told me that she did not contest the contract claim and she admitted that the loan was outstanding, in the sum of £424.68 – see my case management summary paragraph 5(c). In those circumstances, I gave Judgment in the amount of the employer’s contract claim pursuant to rule 21. There is no record of the claimant seeking to set off the outstanding loan owed against any other monies, nor did she request such at the preliminary hearing, nor did she ask that the matter be put off until the final hearing. In any event, rule 21 empowers me to make a determination of the employer’s contract claim where the claimant (as respondent to the contract claim) has clearly stated that the claim is not contested.

[15]In addition, there is no facility under the Tribunal rules to put a Judgment “on hold” as the claimant wishes.

Conclusion

[16]Having considered all the points made by the claimant I am satisfied that there is no reasonable prospect of either of the original decisions being varied or revoked. The application for reconsideration is refused. CERTIFICATE OF CORRECTION Under Rule 67, the written reasons JUDGMENT having been sent to the parties on 28 July 2025 and written reasons having been requested in accordance with Rule 60 of the Employment Tribunals Rules of Procedure, the following reasons are provided: CORRECTED REASONS Background and procedural matters

Conclusion

[1]By a claim form submitted to the Tribunal on 25 January 2023, the claimant brought claims of discrimination arising from disability (section 15), disability related harassment (section 26) and for breach of the duty to make reasonable adjustments (sections 20/21). The claimant’s claim was listed for a final hearing before a full panel. The respondent is now in voluntary liquidation. It was not represented at the hearing. The claimant represented herself at the final hearing. Case management orders had been given at a time when the respondent was still actively participating in the proceedings. As a result, the orders stipulated that the respondent would be responsible for preparation of a hearing bundle and ensuring that sufficient copies were available at the Tribunal. As the respondent did not attend and is in liquidation, the Tribunal did not have access to the standard witness statements and hearing bundle that were anticipated at the time the case management orders were made. The claimant provided us with all the relevant documents that she had access to during the course of the hearing. These included:a. The claimant’s witness statement which consisted of 107 hand numbered paragraphs with a letter dated 14 September 2022 from Peritus Health Management Ltd attached to it.

b. A copy of the documents disclosed by the respondent together with an index. The bundle consisted of 83 pages.

c. A statement of account detailing the payments of Universal Credit and DWP PIP payments received by the claimant.

d. Screenshots of text messages between the claimant and her former colleague Sharna in 2022.

e. Screenshots of text messages between the claimant and Mel Stead, from 2022.

f. A document entitled “SAR Document Request- Georgina Sowden v Optimal”

g. Various printouts from a website for Optimal Management Consultants.

h. Various documents related to Optimal HR Services Ltd

i. Copies of various emails between the claimant and various individuals involved with or representing the respondent at various stages.

j. A written closing submission by the claimant.

k. Claimant’s schedule of loss dated 15 October 2024

[2]The Tribunal had an initial discussion with the claimant about whether the Tribunal could (or should) add an associated company as a second respondent to the claim and about whether this was what she was asking us to do. This potential second respondent was called Optimum OPTIMAL Management Consultants Limited. The Employment Tribunal heard that this company was in a family of companies associated with the current respondent. The discussion about adding a second respondent was connected with ensuring that any judgment issued in these proceedings was properly enforceable. In the course of that discussion the Tribunal took time to explain the concept of a TUPE transfer to Mrs Sowden and explained the potential argument that another company had carried on the business of the current respondent and had inherited the liabilities of the current respondent. In principle, a transferee could be in a position to pay any judgment whereas the current respondent is insolvent. The Tribunal explained the practical consequences of any attempt to add the alleged TUPE transferee as a respondent to these proceedings. In particular, we outlined the further delay that the addition of a new respondent would entail. We explained that the claim would have to be re-served on any additional respondent, that company would have an opportunity to defend the claim by way of an ET3 response form, and there would be further case management orders. Realistically, the claimant could be looking at a year or more before the final hearing could be re-listed and the case could finally be resolved. The case relates to a dismissal which took place in September 2022 and this final hearing is taking place in June 2025.

[3]The Tribunal also noted that if a new company were added as a second respondent, the claimant would still have to establish that there had been a TUPE transfer and that any liabilities for the claim should transfer to the new company. Furthermore, the claimant would still have to establish that she had been subjected to discriminatory treatment, based on the available evidence. It could not be assumed that the new respondent would not attempt to defend the claim on its merits.

[4]The claimant was given time to consider what she wanted to do and how she wanted to proceed. The claimant decided to proceed with her claim at this final hearing without adding the other company as a respondent. The claimant took some further time over an adjournment to discuss it with her companion. After that adjournment she again confirmed that we should go ahead with the case as currently constituted with the insolvent company as the respondent.

[5]The case had a lengthy procedural history. There had been previous hearings with judicial decisions and case management orders. It was not possible or proportionate to review all of the correspondence on the file before hearing the case. During the course of the first day of the hearing, the claimant mentioned having asked the Tribunal to get the respondent to provide its insurer’s certificate so that the claimant could sue the insurer direct, as a direct party to the Tribunal claim. The claimant referred us to some emails about that, which suggested that the claimant could pursue a direct claim against an insurer. During that portion of the hearing we expressed some doubt about whether this was possible in an Employment Tribunal case. Whilst there was some discussion about this, the claimant didn’t actually make an application to amend the proceedings to add the insurer as a respondent. Consequently, the Tribunal spent the afternoon of day one of the hearing reading through the case papers. The claimant was called to give her evidence to the Tribunal on the morning of day two of the hearing. The Tribunal adjourned before lunch to deliberate and come to a decision.

[6]We resumed to give judgment slightly later than anticipated. Whilst the Tribunal had been deliberating, the emails that the claimant had sent (with details of state benefits received) were received by the Tribunal. This was as expected. In addition, the Tribunal’s clerk also sent us a copy of an email that the claimant may have sent to the Tribunal at around 10 o’clock on day two of the hearing. This was another email about the insurer issue. The claimant hadn’t formally applied to add the insurer as a respondent but, because it had been passed to us, we thought it was important that we look at it again so that we could take a view on it.

[7]Part of the chain of correspondence goes back to November 2024. The claimant apparently asked the Tribunal to ask the company’s liquidator for the company’s certificate of insurance. No such order was made by the Tribunal. We actually do not have any details of who the insurer is or if there is one. The Tribunal took some time to think and consider whether this changed matters and whether the claimant was actually asking us to join the insurer as a respondent to the claim. We considered whether, if she was asking for this, it should be permitted. This all arose when the Tribunal was part way through making its decision in relation to the claim as currently constituted.

[8]The claimant had referred to a claim, a case called Watson v Hemmingway Design Ltd (In liquidation) and others

UKEAT/0007/19/JOJ

which suggests that a claimant can sue the employer’s insurer in the Employment Tribunal. Having read the case report, it does suggest that the Tribunal may have the power (if there is a claim against an insurer) to hear it and decide it using an Act called The Third Parties Rights Against Insurers Act 2010. In the Watson case the Employment Appeal Tribunal lifted a stay and allowed the case to go forward to be decided. The case report does not tell us what actually happened to the claim which was made against the insurer. The case went on appeal to the Court of Appeal and they again said that there is a potential power for Employment Tribunals to hear such cases. The difference between that case and this case, however, is that by the time the appeal courts got involved in proceedings, the relevant insurer had been identified and had already been made a party to the claim. The insurer was already listed as the third respondent to the claim. That is significantly different to the current situation in these proceedings. At this stage, the Tribunal does not know who the relevant insurer is or if an insurer exists. The insurer is not part of the proceedings.

[9]Given the circumstances, the Tribunal thought about what to do, particularly given that the claimant actually hadn’t made an application to join the insurer as a respondent. There was no extant application that we could decide. The Tribunal discussed the fact that the claimant had already indicated that she wanted “closure” in relation to the events underpinning this claim. Indeed, that was what the Tribunal and the claimant had been working towards during the week of the final hearing. We noted that, when the claimant had to make a decision about whether to try and get the other company (the alleged transferee) joined as a respondent, the claimant decided, on balance, that it was preferable to get through the case with what is already available to the Tribunal. The claimant did not want any further delay. The Tribunal strongly suspected that the claimant would say the same about the application to add the insurer as a respondent because this would necessitate the same sort of process and delay. The insurer would need to be identified, added as a respondent, served with the case papers, and given the chance to defend the case.

[10]On that basis the Tribunal did not think that it needed to go any further down that line of enquiry. If the claimant had, at this point, made a decision to make an application to amend and add the insurer there would still be problems with the Tribunal doing that. The Tribunal would not have been minded to permit that amendment. That is partially because of the practicalities in identifying and locating the insurer, but also because whenever a party applies to amend a claim the Tribunal has to apply the relevant tests and case law principles in relation to amendment applications. In essence, the Tribunal has to look at the balance of hardship and injustice between the parties. Such an application would be being made somewhat ‘at the eleventh hour’, around 2 years and 9 months after termination of employment. This would weigh significantly against us allowing such an application. The case is already approaching the third anniversary of the dismissal. It is quite an old claim. The claimant has already had attempts to add different respondents to the claim. A fresh Tribunal determining such an application might well take the view that the claimant could and should have asked for this particular change at an earlier stage.

[11]The Tribunal also does not know whether, if the insurer were joined to proceedings, it would actually enable the claimant to enforce a monetary judgment against the insurer. There would still be a significant number of hurdles for the claimant to overcome. So, applying the test in Vaughan v Modality Partnership

[2021] IRLR 97

. and in Selkent Bus Co Ltd t/a Stagecoach Selkent v Moore [1996]

UKEAT/151/96

we wouldn’t have been in a position to add the insurer if the claimant had asked us to. However, we did consider it because the claimant had raised the issue in correspondence. The Tribunal also notes that if the insurer had been added to the proceedings, they would have lost out on that earlier opportunity to gather any relevant evidence in order to defend the claim. The insurer’s client is now insolvent so there is a risk that an insurer would not have a fair opportunity to mount a proper defence to the claim. Furthermore, it is still open to the claimant to seek advice about proper redress through the civil courts once she has a judgment. This may or may not involve the liquidators or the insurers. This is not something which the Employment Tribunal would get involved with. The claimant can consider her options in due course and use the judgment as she thinks best. The issues in the case

[12]The issues that the Tribunal has to decide are those set out in the case management order of Employment Judge Brain from 13 July 2023. There is a section 15 discrimination arising from disability claim, relating to the dismissal. There is a disability related harassment claim which relates to a comment which was made during a phone conversation on or about 12 August 2022. The reasonable adjustments claim relates to the potential for the claimant to work from home and also to defer and delay the absence management meetings and procedures until the claimant was well enough to attend. Finally, there is a claim for commission which, on the face of the case management order, related to payments which accrued in September 2022 and were payable in October 2022.

[13]Employment Judge Brain’s judgment from July 2023 was issued alongside the case management order. It appears that the time limit issue had already been determined by Employment Judge Brain. This Tribunal is permitted to hear the discrimination claims and does not need to be concerned with limitation/time limit issues in that regard. According to the previous decision, only part of the commission payment claim can proceed. This is the claim in relation to September/October. During the course of the evidence, the claimant’s claim was clarified as relating to an earlier period. The judgment also stated that a claim for wrongful dismissal (which is the notice pay claim) is not permitted to proceed because it was brought to the Tribunal too late.

Findings of fact

[14]The Tribunal considered the available documents, read the claimant’s witness statement and considered what the claimant had said to the Tribunal during the course of the hearing.

[15]In relation to commission, the claimant explained her Schedule of Loss. She claimed £570 in relation to the work that she had done in June and July, which should have been paid in August 2022. The Tribunal noted that the claimant was entitled to commission in line with the commission scheme at page 38 of the bundle of documents. The position was that, after a certain level of billings the claimant was entitled to receive 10% commission on billings. On billings above a second threshold, the claimant was entitled to 20% commission on billings. When the claimant started to train up her colleague, Sharna, the claimant suggested that there should be a system to share commission, as a way of incentivising Sharna. It was suggested that the claimant’s work and Sharna’s work would be put together for commission purposes. Commission would be calculated based on the totality of the work done by both of them and then the commission payable would be split 50/50 between them. This was the basis of the commission payments for a couple of months.

[16]For various reasons, including financial difficulties and the fact that working with Sharna was not going entirely according to plan, the claimant suggested at one point that this system was no longer fair. She suggested that they should revert to a system where she was entitled to 100% of the commission pot, at least partly because the claimant felt that she was doing all of the relevant work anyway. The claimant asked to change back to this system. The Tribunal has seen the relevant documents. However, the respondent refused to change the system back to the old way of calculating commission which was in place before the 50/50 split was agreed.

[17]The Tribunal came to two conclusions. Firstly, the Tribunal has to refuse the commission claim on limitation/time limit grounds. The time limit issue has already been determined by Employment Judge Brain. The claimant has now clarified that the period of commission that she was claiming for related to work done in June and July which should have been paid as commission in August 2022. Given the earlier decision on time limits, we do not have jurisdiction to make such an award. We cannot make such an award. In any event, even if the time limit had not been a problem, based on the evidence that the Tribunal has heard, we do not think that we could have awarded the sums claimed. This is because the commission claim is essentially a claim for breach of contract. The Tribunal has to determine what the claimant was entitled to under the contract. On the available evidence, the reality is that the claimant originally had an entitlement to 100% of her commission. The parties then varied the contract by agreement so that commission was split 50/50 with Sharna. The claimant tried to change it back to the old system but the respondent did not agree to this. At that point the claimant was stuck with the 50/50 arrangement. This is because the contractual terms have to be varied by agreement between the claimant and the respondent. If both parties are not in agreement, then the contractual terms remain unchanged. The claimant could not unilaterally impose this change to the contract on the respondent. Therefore, based on the evidence that we heard, the 50/50 split system remained in operation. The parties did not agree a further variation to the contractual entitlements. Consequently, we would not have been able to award the sum claimed by the claimant, which reflected the 50% of commission which had been apportioned to Sharna for the period in question. Consequently, the claim for commission payments is not well founded and is dismissed.

[18]Any claim for notice pay has already been ruled out by the earlier judgment of Employment Judge Brain.

[19]The heart of this case relates to the dismissal and the section 15 claim. The claimant was disabled by reason of anxiety and depression. This was determined in the earlier judgment of Employment Judge Batten. The claimant was disabled throughout the relevant period for the purposes of her Tribunal claim.

[20]The respondent knew that the claimant was disabled at all the relevant times. Prior to this period of employment the claimant had worked for the respondent’s Managing Director, Mel Stead. The claimant had made Ms Stead aware of the disability at that time. When she came back to work for Ms Stead at the respondent company, her health had improved somewhat but her condition had not completely resolved. The respondent’s response to the Tribunal claim indicates that they paid for counselling for the claimant (paragraph 14 of the Grounds of Resistance). Taking all of the relevant evidence together it is clear that the respondent knew that the claimant was disabled at all material times.

[21]The claimant was employed as a Senior Recruitment Consultant. She was the only person in that position. Sharna was, in effect, the Managing Director’s daughter-in-law. She worked for the respondent and lived with the Managing Director, Mel Stead. When Sharna was recruited it was decided that the claimant would train her up to do the recruitment consultant work.

[22]There was at least one other ‘sister company’ related to the respondent which traded from the same office in the same building as the respondent. The ‘sister company’ under the Optimum OPTIMAL ‘umbrella’ was Optimum OPTIMAL HR Solutions. The claimant was employed by Optimum OPTIMAL Recruitment Solutions. It appears that Mel Stead was a director of both companies.

[23]The Tribunal heard evidence that the claimant agreed with the respondent (when she restarted work in November 2021) that she would work two days per week from home on a regular basis. This was for a number of reasons but these included facilitating the claimant’s attendance at various appointments. She could work around the appointments if she was not having to travel into the office on the same day. These appointments included support meetings for the claimant’s daughter’s mental health (CAMHS), family support meetings, and counselling for the claimant in relation to her previous marriage, amongst other things. It was intended that the claimant would work from the office on the other three days of the week.

[24]The claimant sometimes had meetings with clients. It is apparent that all her other work could actually be done remotely, with a computer, via email and phone etc. The Tribunal understands that the claimant was training other employees and, of course, it would be easier to supervise and train someone if the claimant was physically in the same place as them. However, that was not necessarily essential. The fact is that it had been agreed that two days per week could be worked from home, even though the claimant was going to be training Sharna (and possibly Luke.)

[25]In her evidence the claimant gave us examples of circumstances when she had to stay at home for various reasons (such as lack of transport because the car broke down, emergencies with her daughter and the hospital.) In those circumstances the respondent allowed her not to attend work, although her pay was docked. The real issue is the examples where the respondent demanded that the claimant come into the office on days which were supposed to be working from home days. The reasons given for this included that there was a meeting that the claimant needed to attend, or that the claimant needed to be in the office to supervise people or ‘to be seen to be the senior employee.’ The content of the emails and the correspondence comes across as somewhat arbitrary on the respondent’s part. If there was an agreement in principle that the claimant could work two days a week from home, then why was the respondent departing from that? Where is the good reason why the claimant’s normal working from home arrangement could not be accommodated?

[26]The claimant gave evidence that the respondent insisted on her being in the office on a Monday on occasions which would mean that she had to cancel her planned appointments and would not be able to rearrange them. She would just lose those appointments. She would also not be able to take a day in lieu to work from home later in the week as compensation for being in the office when she wasn’t supposed to be.

[27]Another key feature of the evidence was that the claimant found that working from home helped her to manage the symptoms of her disability. If she felt tearful or shaky or found it difficult to maintain her composure, this could be better managed from home where she was not “on show.” She could carry on working and nobody would see what sort of emotional state she was in. By contrast, if she was in the office she had to try and perform and keep her composure and would need to go off to the ladies’ toilets to try and regain composure. ‘Keeping a lid on’ the symptoms of the disability in public made them harder to manage and made it harder for her to function in her role.

[28]The documents show that the respondent had some form of attendance management procedure. That is what they purported to implement when they subsequently called her in to the meetings (as set out below). They suggested that they needed to review attendance and take steps in relation to it. The Tribunal has not seen the document in question but we are prepared to accept that it existed. It is likely to have made provision in relation to appropriate levels of attendance and steps to be taken where employees fail to maintain adequate levels of attendance at work.

[29]The claimant was initially asked to train another employee in addition to Sharna. His name was Luke. The claimant explained that initially Luke was to do two days per week on recruitment, one day per week on social media for the group of companies, and the remainder of his time would be spent working on his own business. Luke’s training period was not successful and he decided that he did not wish to pursue recruitment work after a number of weeks. Thereafter he did mainly social media work.

[30]The Tribunal also heard that there were about six individuals working in the HR department or for the HR business. There was a Finance Director and we also heard that Mel Stead may have done some of the recruitment work (at a managerial level). The claimant explained to us that sometimes she would help with recruitment issues for the HR team’s existing portfolio of clients.

[31]The witness statement and the evidence that the claimant gave us explained the difficulties that she experienced at work, particularly from about May 2022 onwards. Matters really came to a head in August 2022. On 9 August at (page

[33]it is apparent that the claimant became unwell and went off work on sick leave. That was absence due to anxiety (i.e. the disability) and it is a matter of record that the claimant never returned to work fully after that date. The claimant apparently self-certified for the first week but then emailed a sick note from her doctor. 32. It appears, from what the Tribunal has heard, that there were a number of factors contributing to the claimant’s condition. Some were home related issues, her daughter’s mental health struggles, her previous abusive marriage and so on. On top of that, the claimant’s relationships at work began to break down. Her experiences at work had become more difficult. Crucially, there was a disagreement about commission payments. The Tribunal read the emails in the bundle going backwards and forwards between the parties. The claimant and the respondent disagreed about what the entitlement was and how the calculation should be done. At one point the Finance Director got involved and, even so, the claimant maintained that she still hadn’t been paid correctly. She politely stood her ground on the issue. 33. We saw an email dated 12 August (at page 42 in the bundle). This email was sent by Ms Stead to the claimant at about ten past midnight. It was a lengthy email. Key aspects of the email related to commission. Amongst other things Ms Stead said: “I am really shocked at your email. It is not acceptable to change how your commission is worked out between you and Sharna without us agreeing it first so any commission outstanding will be split equally. Sharna has been doing all the social media for both of your roles, getting roles on Recruitly, sifting CVs and has been on the phones. And some of the candidates who were successful in Wakefield which are only just being paid for were hers, I’m really disappointed you would suggest otherwise. Going forward you will both have your own roles and I will allocate them out so it is fair. I appreciate you are in a difficult situation financially but this is not the way to deal with it, you are getting a significant amount of support from people around you at work, and that includes from Sharna…. I will run through the bonus scheme with you on Monday when we are in the office and I will confirm the scheme again with you, Sharna and Sara. None of the scheme rules have ever changed. We need to do a return to work meeting on Monday to discuss how you are feeling and your absences. I will send you an invite once I know you are back in.”

[34]The claimant, who was absent on sick leave, sent an email response at 7.33am saying: “I’m still not well and now on top I have a swollen face with an abscess again. You still have not confirmed either way what the commission should be or agreed to my figures. I will call you at 9am to go through every placement with you.”

[35]The claimant duly did call Ms Stead at 9am and was unable to get through. Ms Stead called her back at about 9.30am. The claimant’s unchallenged account of what happened next is in her witness statement at paragraphs 57 to 66. I quote this in full because it sets out some of the key facts in the case. She said: “I wanted to discuss work, the placements made and commission, to keep calm and find out answers and discuss work. However the respondent immediately spoke over me and immediately stated “Georgie, I am telling you now you are not about to have a breakdown, you are IN a breakdown.” This I felt wasn’t fair, nor a proper situation to discuss my mental health struggles, as it was the situation and being ignored and what felt like deliberately kept waiting and waiting for a reply and answer from Melanie Stead that was causing my mental health and anxiety to deteriorate. I was asked specifically what medication I was currently taking and asked when I was next seeing the doctor. I was told to get to the doctor as soon as possible and was told by the respondent to ask the doctor for Propranolol. I informed the respondent on the call I already had a doctor’s appointment thank you. The respondent then continued stating how Sharna had done all the work, all the advertising, all the candidate selection and interviews and it was not appropriate for me to demand all the remaining commission. I replied that I had not demanded anything, I had politely requested the remaining commission all be paid to me as I had done the majority of the work. I then asked the respondent about the commission calculations. The respondent begrudgingly said that the commission had been calculated wrong and it was Sara’s mistake. I asked the respondent what the calculations were now that she had made and I was told I was not going to find out until Monday next week when she would sit down with me, Sharna and Sara and discuss the commission status. I again asked what she had now calculated and the respondent refused to tell me. I tried to maintain a calm tone and went through all placements with Mel and all data relating to the fact that I had advertised all the jobs, I had shortlisted all candidates and added them to the system. I specifically gave all data as to the fact that a lot of the placements were from searches I had made on various CV libraries we use, Mel did listen and at the end said, “oh I didn’t know that”. Melanie Stead the respondent and I discussed the still continuing challenges I was having training Sharna McWilliams. The respondent then made me very upset as she then stated, “well that is because you criticise Sharna all the time and make her feel anxious!” I immediately responded by saying “that is not fair Mel I have been trying really hard and recent training sessions I have had with Sharna I have been told she really enjoyed them and thought it was great”. Melanie replied, “yes well, yes she did I agree”. The respondent then immediately said to me “Well Luke told me in the final meeting I had with him that when he said recruitment was not for him, that you spoke to him like he was a piece of s*** on your shoe and you spoke to him like he was thick”. It was this statement that really hurt me and hit me hard, and I immediately felt my emotions get ahead of me. I immediately started crying and was struggling to breathe properly. I knew my voice was getting louder as my mental health reactions and struggles overtook me, and I tried to tell the respondent that what she had said had really upset me and asked why she would say something like this to me? No one had said anything to me before, and why had she brought this up now? The respondent said, “I didn’t say I agreed with him did I?” I was very very upset at this point, shaking as I was trying to calm myself down, and Melanie Stead told me to stop shouting at her. I replied I wasn’t meaning to shout but that what she had said really upset me and was making my anxiety worse and worse. The respondent replied, “it is not me doing this Georgie you are doing this all by yourself”. It was this final comment by the respondent that made me totally lose control and I had to put the phone down as I was really struggling to breathe and was having a massive panic attack. I couldn’t believe that the respondent had said that and it felt to me like I was deliberately provoked and personally attacked, to the point I lost control.”

[36]After the call the claimant sent an email follow up (at page 44). It set out her response to what had happened in the phone call. It is relatively lengthy but it shows the impact that the interaction had had upon her. She repeatedly says how devastated she is by what has happened, how she denies speaking to colleagues in the way that has now been alleged and she concludes: “If you would like clarification maybe you can ask Sharna as she was sat with us at the time, as I asked Sharna that day as well if I was rude in how I explained to Luke about making calls and she said not in any way. If that is not the case and Sharna has said otherwise, then I would like to know. I am mortified and devastated that you have told me this Mel, especially when you are aware that my anxiety levels are causing me issues as this is a really hard blow to my confidence, not only in doing my job but as a person as well. That is why I have just got very upset towards the end of the conversation, as you have told me that staff members have made comments and complaints about me, and you seem to be surprised about this upsetting me hugely. After speaking to me about recognising I am breaking point, and struggling with anxiety and emotions and I need to get the help I need, you then choose to tell me Luke and Sharna have both complained to you about the way I allegedly speak to them and I need to look at the way I speak to people? I feel completely devastated Mel.”

[37]That neatly summarises the claimant’s reactions to what had been said and how she felt at the time. It is noticeable to the Tribunal that there was no response to this from Ms Stead until about 4.25 pm (this is being a Friday) and the response was not to come back on the content of the email that the claimant had sent. Rather, Ms Stead’s response was to send an invitation to the claimant to attend a disciplinary hearing on what was effectively the next working day, Monday at 10 am. The letter dated 12 August (page 47) said, “I am writing to invite you to attend a disciplinary hearing regarding your alleged inappropriate behaviour during a conversation with me today, where you raised your voice and demanded a conversation with me regarding your commission payments. I explained that I was not free to discuss this today, but I had recalculated the commission payments and we would discuss it on Monday in the office, and you abruptly ended the call. We will also discuss the tone of recent emails to me, which I allege are also inappropriate. Due to the serious nature of this complaint, and in accordance with the Disciplinary Procedure, you are required to attend a formal disciplinary hearing. This will be held on Monday 15 August 2022 at 10 am…” The letter goes on to say that the claimant is entitled to be accompanied but warns her that the outcome of the hearing may result in a disciplinary warning or even dismissal. That is the letter that was sent on the Friday.

[38]The claimant’s response (page 48) on the following Monday was that she was not well and would not be able to work. She wouldn’t be able to attend the hearing and she was going to speak to her doctor.

[39]On 17 August (page 49), the claimant asked to postpone meetings until she was well enough to attend. She referred to sick notes and that the reason for absence was anxiety and stress, which was work related. She indicated that she could not deal with conflict and confrontational conversations as these were a trigger affecting her emotional and mental health. To the point where she could not control her emotions and responses. She said that this was why she had either emailed or texted when she felt that she was unable to speak directly to Ms Stead. She wanted discussions etc to be postponed until the end of her sick note. She asked for more detail as to why she was being called to a disciplinary hearing.

[40]On 21 August the claimant asked for a copy of the respondent’s disciplinary procedure. On 30 August (page 54) the respondent changed approach somewhat. The respondent now invited the claimant to an absence review meeting to take place the following Thursday, a matter of days later. This was to discuss her attendance which was now being classified by the respondent as long term absence. The email referred to occupational health. The tone of the communication includes the following from Ms Stead, “I also note your comments below. Firstly I would like you to adjust your tone when emailing to me, asking a line manager to do something “immediately” is not appropriate. Your specific email advised the doctor has suggested no communication with work because you have advised work related stress, something that has never been discussed with me prior to this absence. You cannot pick and choose what communication you have with your employer and therefore as your GP has advised no communication to the point of 28th August that is what you received.” It carries on in similar vein. She concluded by saying that a copy of the disciplinary procedure would be provided that week and a new meeting date would be arranged.

[41]On 1 September the claimant sent a sick note. Also on 1 September (at page 55) there was a second invitation to a disciplinary hearing which was going to take place on 9 September. The respondent was apparently pursuing both disciplinary and attendance issues at this point in the chronology. The letter contained no acknowledgment of the claimant’s health concerns or difficulties in attending. On 2 September there was an invitation to an occupational health appointment on 6 September and an invitation to an absence meeting on 9 September (page 62.) The claimant was unwell and could not attend.

[42]On 9 September there was a further invitation to an occupational health appointment (on 14 September). There was also an invitation to meetings on 13 September, which we note was the day before the occupational health appointment. Those 13 September meetings were to be an absence meeting at 11am followed swiftly by the disciplinary meeting at midday. It is apparent from the chronology of meetings proposed by the respondent, that the respondent did not intend to wait for the occupational health report before having the meeting about the claimant’s absence.

[43]The claimant (page 66) referred again to her sick note. She asked for her direct phone number to be provided to occupational health so that they could contact her. She referred to some anxiety about attending at an address that she does not know and is not familiar with. She said that she was not sure what to expect. So, there were clear concerns on the claimant’s part. She confirmed again (page 67) that she would not be able to attend.

[44]On page 69 there is a letter dated 13 September. This was another invitation to an absence meeting which was to take place on 30 September at 11am. Following on from this we have the letter of 20 September (at page 72) which is the dismissal letter in this case. It states: “I am writing in relation to your employment at Optimal Recruitment Solutions Limited. Despite repeated attempts to contact you and arrange absence management meetings you have failed to meet with myself or respond accordingly to the last meeting invitation. As I advised in my last letter dated 13 September, without meeting with you to understand the issues and without you attending the occupational health assessments, this means I must conclude whether you are able to fulfil your role. I note you have now failed to attend four absence management meetings, three occupational health assessments and three invitations to disciplinary meetings. In addition, you have failed to provide an absence certificate for your absence from 11 September inclusive. As an employee of Optimal, you are required to attend meetings requested by your manager in relation to your absence. As a small business it is not possible for us to sustain the level of absence you have taken. You have advised that these are work related issues but despite repeated attempts you have failed to allow us to discuss these with you. I have considered all the matters above and write to advise that I am terminating your contract on the grounds of continued absence. As your absence is currently uncertified then it is classed as unauthorised and unpaid leave. Your final salary will be paid to you on 30 September and any holidays accrued but not taken will be calculated…Finally, there is a personal loan of £1,300 outstanding which you owe to the company when £2,000 was loaned to you in January. Deductions will be taken from your final salary and any amounts still owed must be paid back to the company within 14 days to the bank details noted below. A letter confirming the final amount due once salary deductions have been made will be sent to you in the next few days once payroll has been concluded. Please arrange to return your company laptop, mobile and chargers for each item within the next 7 days to the following address...”.

[45]The claimant did, in fact, attend the last occupational health appointment by telephone. An occupational health report was provided, which the claimant attached to the back of her witness statement. The report is dated 14 September. The contents of the report essentially support what the claimant was saying about her health. The law Section 15: Discrimination arising from disability

The law

[46]Section 15 Equality Act 2010 states:(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.

(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.

[47]Four elements must be made out in order for the claimant to succeed in a section 15 claim:(i) There must be unfavourable treatment. No comparison is required.

(ii) There must be something that arises ‘in consequence of the claimant’s disability’. The consequences of a disability are infinitely varied depending on the particular facts and circumstances of an individual’s case and the disability in question. They may include anything that is the result, effect or outcome of a disabled person’s disability. Some consequences may be obvious and others less so. It is question of fact for the tribunal to determine whether something does in fact arise in consequence of a claimant’s disability.

(iii) The unfavourable treatment must be because of (i.e. caused by) the something that arises in consequence of the disability. This involves a consideration of the thought processes of the putative discriminator in order to determine whether the something arising in consequence of the disability operated on the mind of the alleged discriminator, whether consciously or subconsciously, at least to a significant extent.

(iv) The alleged discriminator cannot show that the unfavourable treatment is a proportionate means of achieving a legitimate aim. See Secretary of State for Justice and another v Dunn EAT 0234/16.

[48]Treatment cannot be ‘unfavourable’ merely because it is thought that it could have been more advantageous or is insufficiently advantageous (The Trustees of Swansea University Pension & Assurances Scheme and anor v Williams

[2015] IRLR 885

;

[2017] IRLR 882

and

[2019] IRLR 306

[49]The consequences of a disability ‘include anything which is the result, effect or outcome of a disabled person’s disability.’ Some may be obvious, others may not be obvious (paragraph 5.9 EHRC Employment Code 2011).

[50]Following the guidance given in Pnaiser v NHS England

[2016] IRLR 170

at paragraph 31 the correct approach to a section 15 claim is:(a) A tribunal must first identify whether there was unfavourable treatment and by whom. No question of comparison arises.

(b) The tribunal must determine what caused that unfavourable treatment. What was the reason for it? An examination of the conscious or unconscious thought processes of A is likely to be required. There may be more than one reason or cause for impugned treatment. The ‘something’ that causes the unfavourable treatment need not be the main or sole reason, but must have at least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it.

(c) Motives are irrelevant. The focus of this part of the enquiry is on the reason or cause of the impugned treatment and A’s motive in acting as he or she did is irrelevant

(d) The tribunal must determine whether the reason/cause (or, if more than one), a reason or cause, is ‘something arising in consequence of B’s disability’. That expression ‘arising in consequence of’ could describe a range of causal links. The causal link between the something that causes unfavourable treatment and the disability may include more than one link. However, the more links in the chain there are between the disability and the reason for the impugned treatment, the harder it is likely to be to establish the requisite connection as a matter of fact. This stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator.

(e) The knowledge that is required is knowledge of the disability only. There is no requirement of knowledge that the ‘something’ leading to the unfavourable treatment is a consequence of the disability. (See also City of York Council v Grosset

[2018] ICR 1492

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

[51]The first limb of the analysis at section 15(1)(a) is to determine whether the respondent treated the claimant unfavourably “because of something arising in consequence of the claimant’s disability”. This analysis requires the tribunal to focus on two separate stages: firstly, the “something” and, secondly, the fact that the “something” must be “something arising in consequence of B’s disability”, which constitutes a second causative (consequential) link. It does not matter in which order the tribunal takes the relevant steps (Basildon & Thurrock NHS Foundation Trust v Weerasinghe

[2016] ICR 305

at paras 26- 27) also City of York Council v Grosset

[2018] IRLR 746

paragraph 36).

[52]When considering an employer’s defence pursuant to section 15(1)(b) the ‘legitimate aim’ must be identified. The aim pursued should be legal, should not be discriminatory in itself and must represent a real, objective consideration. The objective of the measure in question must correspond to a real need and the means used must be appropriate with a view to achieving the objective and be necessary to that end. (Bilka-Kaufhaus GmBH v Weber von Hartz

[1986] IRLR 317

[53]The question as to whether an aim is “legitimate” is a question of fact for the tribunal. The categories are not closed, although cost saving on its own cannot amount to a legitimate aim (Woodcock v Cumbria Primary Care Trust

2012 ICR 1126

[54]Once the legitimate aim has been identified and established it is for the respondent to show that the means used to achieve it were proportionate. Treatment is proportionate if it is an ‘appropriate and necessary’ means of achieving a legitimate aim. A three- stage test is applicable to determine whether criteria are proportionate to the aim to be achieved. First, is the objective sufficiently important to justify limiting a fundamental right? Secondly, is the measure rationally connected to the objective? Thirdly, are the means chosen no more than is necessary to accomplish the objective? (R(Elias) v Secretary of State for Defence

[2006] IRLR 934

[55]Determining proportionality involves a balancing exercise. An employment tribunal may wish to conduct a proper evaluation of the discriminatory effect of the treatment as against the employer’s reasons for acting in this way, taking account of all relevant factors (EHRC Code paragraph 4.30). The measure adopted by the employer does not have to be the only possible way of achieving the legitimate aim, but the treatment will not be proportionate if less discriminatory measures could have been taken to achieve the same objective (see EHRC Code (para 4.31). It will be relevant for the tribunal to consider whether or not any lesser measure might have served the aim.

[56]The principle of proportionality requires the tribunal to take into account the reasonable needs of the business but it has to make its own judgment, based upon a fair and detailed analysis of the working practices and business considerations involved, as to whether the proposal is reasonably necessary (Hardy & Hansons Plc v Lax

[2005] IRLR 726

and Hensman v Ministry of Defence

UKEAT/0067/14/DM

). It is not the same test as the ‘band of reasonable responses’ test in an unfair dismissal claim. However, in Birtenshaw v Oldfield

[2019] IRLR 946

(para 38) the EAT highlighted that in considering the objective question of the employer’s justification, the employment tribunal should give a substantial degree of respect to the judgment of the decision maker as to what is reasonably necessary to achieve the legitimate aim provided it has acted rationally and responsibly. However, it does not follow that the tribunal has to be satisfied that any suggested lesser measure would or might have been acceptable to the decision-maker or would otherwise have caused him to take a different course. That approach would be at odds with the objective question which the tribunal has to determine; and would give primacy to the evidence and position of the respondent’s decision-maker.

[57]It is necessary to weigh the need against the seriousness of the detriment to the disadvantaged person. It is not sufficient that the respondent could reasonably consider the means chosen as suitable for achieving the aim. To be proportionate a measure has to be both an appropriate means of achieving the legitimate aim and (reasonably) necessary in order to do so (Homer v Chief constable of West Yorkshire Police Authority

[2012] IRLR 601

.) Section 26: harassment

[58]Section 26 states: (1) A person (A) harasses another (B) if- (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) The conduct has the purpose or effect of- (i) violating B’ s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B …. (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account- (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect. 59. ‘Unwanted’ conduct is essentially the same as ‘unwelcome’ or ‘uninvited’ conduct.

[60]Harassment will be unlawful pursuant to section 26 if the unwanted conduct related to a relevant protected characteristic had either the purpose or the effect of violating the complainant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

[61]The harassment has to be “related to” a particular protected characteristic. The tribunal is required to identify the reason for the harassment with a particular focus on the context of the particular case. In Unite v Naillard

[2017] ICR 121

the EAT indicated that section 26 requires the tribunal to focus upon the conduct of the individual(s) concerned and ask whether their conduct is associated with the protected characteristic. In that case it was not enough that an individual had failed to deal with sexual harassment by a third party unless there was something about the individual’s own conduct which was related to sex. The focus will be on the person against whom the allegation of harassment is made and his conduct or inaction. So long as the tribunal focuses on the conduct of the alleged perpetrator himself it will be a matter of fact whether the conduct is related to the protected characteristic. As stated in Tees Esk and Wear Valleys NHS Foundation Trust v Aslam

[2020] IRLR 495

, “there must still … be some feature or features of the factual matrix identified by the tribunal, which properly leads it to the conclusion that the conduct in question is related to the particular characteristic in question, and in the manner alleged by the claim. In every case where it finds that this component of the definition is satisfied the tribunal therefore needs to articulate, distinctly and with sufficient clarity, what feature or features of the evidence or facts found have led to the conclusion that the conduct is related to the characteristic, as alleged. Section 26 does not bite on conduct which, though it may be unwanted and have the proscribed purpose or effect, is not properly found for some identifiable reason also to have been related to the characteristic relied upon, as alleged, no matter how offensive or otherwise inappropriate the tribunal may consider it to be.”

[62]The test as to the effect of the unwanted conduct has both subjective and objective elements to it. The subjective element involves looking at the effect of the conduct on the particular complainant. The objective part requires the tribunal to ask itself whether it was reasonable for the complainant to claim that the conduct had that effect. Whilst the ultimate judgement as to whether conduct amounts to unlawful harassment involves an objective assessment by the tribunal of all the facts, the claimant’s subjective perception of the conduct in question must also be considered. So, whilst the victim must have felt or perceived her dignity to have been violated or an adverse environment to have been created, it is only if it was reasonable for the victim to hold this feeling or perception that the conduct will amount to harassment. Much depends on context. See the guidance Richmond Pharmacology v Dhaliwal

[2009] ICR 724

revisited in Pemberton v Inwood [2018] IRLR where Underhill LJ stated: “In order to decide whether any conduct falling within sub-paragraph (1)(a) has either of the proscribed effects under sub-paragraph (1)(b), a tribunal must consider both (by reason of subsection (4)(a)) whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) and (by reason of subsection (4)(c)) whether it was reasonable for the conduct to be regarded as having that effect (the objective question). It must also, of course, take into account all the other circumstances—subsection (4)(b). The relevance of the subjective question is that if the claimant does not perceive their dignity to have been violated, or an adverse environment created, then the conduct should not be found to have had that effect. The relevance of the objective question is that if it was not reasonable for the conduct to be regarded as violating the claimant's dignity or creating an adverse environment for him or her, then it should not be found to have done so.” The context of the conduct and whether it was intended to produce the proscribed consequences are material to the tribunal’s decision as to whether it was reasonable for the conduct to have the effect relied upon. Chawla v Hewlett Packard Ltd

[2015] IRLR 356

.) As stated in Dhaliwal: ‘If, for example, the tribunal believes that the claimant was unreasonably prone to take offence, then, even if she did genuinely feel her dignity to have been violated, there will have been no harassment within the meaning of the section. Whether it was reasonable for a claimant to have felt her dignity to have been violated is quintessentially a matter for the factual assessment of the tribunal. It will be important for it to have regard to all the relevant circumstances, including the context of the conduct in question. Section 20/21: reasonable adjustments.

[63]Section 20 (so far as relevant) states:(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.

(2) The duty comprises the following three requirements.

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

(4) The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

(5) The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid. …

[64]Section 21 states:(1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments.

(2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person.

(3) …

[65]The correct approach to a claim of unlawful discrimination by way of a failure to make reasonable adjustments remains as set out in Environment Agency v Rowan

2008 ICR 218

and is as follows:(a) Identify the PCP applied by or on behalf of the employer,

(b) Identify comparators (if necessary),

[66]The identification of the applicable PCP is the first step that the claimant is required to take. If the PCP relates to a procedure, it must apply to others than the claimant. Otherwise, there can be no comparative disadvantage.

[67]In Ishola v Transport for London

[2020] EWCA Civ 112

it was noted that the phrase PCP should be construed widely but remarks were made about the legislator’s choice of language (as opposed to the words “act” or “decision”.) Simler LJ stated, “I find it difficult to see what the word “practice” adds to the words if all one off decisions and acts necessarily qualify as PCPs…. If something is simply done once without more, it is difficult to see on what basis it can be said to be “done in practice.” It is just done; and the words “in practice” add nothing….The function of the PCP in a reasonable adjustment context is to identify what it is about the employer’s management of the employee or its operation that causes substantial disadvantage to the disabled employee…To test whether the PCP is discriminatory or not it must be capable of being applied to others because the comparison of disadvantage caused by it has to be made by reference to a comparator to whom the alleged PCP would also apply…. In my judgment, however widely and purposively the concept of a PCP is to be interpreted, it does not apply to every act of unfair treatment of a particular employee. That is not the mischief which the concept of indirect discrimination and the duty to make reasonable adjustments are intended to address. …In context and having regard to the function and purpose of the PCP in the Equality Act 2010, all three words carry the connotation of a state of affairs (whether framed positively or negatively and however informal) indicating how similar cases are generally treated or how a similar case would be treated if it occurred again. It seems to me that “practice” here connotes some form of continuum in the sense that it is the way in which things generally are or will be done. That does not mean it is necessary for the PCP or “practice” to have been applied to anyone else in fact. Something may be a practice or done “in practice” if it carries with it an indication that it will or would be done again in future if a hypothetical similar case arises. Like Kerr J, I consider that although a one-off decision or act can be a practice, it is not necessarily one. …in the case of a one-off decision in an individual case where there is nothing to indicate that the decision would apply in future, it seems to me the position is different. It is in that sense that Langstaff J referred to “practice” as having something of an element of repetition about it.”

[68]A ‘substantial disadvantage’ is one which is ‘more than minor or trivial’.

[69]Only once the employment tribunal has gone through the steps in Rowan will it be in a position to assess whether any adjustment is reasonable in the circumstances of the case, applying the criteria in the EHRC Code of Practice. The test of reasonableness is an objective one. The effectiveness of the proposed adjustments is of crucial importance. Reasonable adjustments are limited to those that prevent the PCP from placing a disabled person at a substantial disadvantage in comparison with persons who are not disabled. Thus, if the adjustment does not alleviate the disabled person’s substantial disadvantage, it is not a reasonable adjustment. (Salford NHS Primary Care Trust v Smith [2011] EqLR 1119) However, the threshold that is required is that the adjustment has ‘a prospect’ of alleviating the substantial disadvantage. There is no higher requirement. The adjustment does not have to be a complete solution to the disadvantage. There does not have to be a certainty or even a ‘good’ or ‘real’ prospect of an adjustment removing a disadvantage in order for that adjustment to be regarded as a reasonable one. Rather it is sufficient that a tribunal concludes on the evidence that there would have been a prospect of the disadvantage being alleviated. (Leeds Teaching Hospital NHS Trust v Foster [2011] EqLR 1075.

[70]Where the disability in question means that an employee is unable to work as productively as other colleagues, adjustments to enable her to be more efficient would indeed relate to the substantial disadvantage she would otherwise suffer (Rakova v London Northwest healthcare NHS trust

[2020] IRLR 503

.) It cannot be assumed that a desire to achieve greater efficiency does not reflect the suffering of a substantial disadvantage. The fundamental question is what steps it was reasonable for the respondent to have to take in order to avoid the particular disadvantage not what ought ‘reasonably have been offered.’

[71]An employer has a defence to a claim for breach of the duty to make reasonable adjustments if it does not know and could not reasonably be expected to know that the disabled person is disabled and is likely to be placed at a substantial disadvantage by the PCP etc. The question is what objectively the employer could reasonably have known following reasonable enquiry.

[72]If there are no adjustments which would enable the employer to return to work, it would not be reasonable to make them (Conway v Community Options Ltd

UKEAT/0034/12

[73]An employer can satisfy the duty to make reasonable adjustments even if the adjustments adopted are not the adjustments preferred by the employee (Garrett v Lidl Ltd UKEAT/0541/0).

[74]An employer has a defence to a claim for breach of the duty to make reasonable adjustments if it does not know and could not be reasonably be expected to know that the disabled person is disabled and is likely to be placed at a substantial disadvantage by the PCP etc. The question is what objectively the employer could reasonably have known following reasonable enquiry. Conclusions Section 15

Conclusions

[75]The unfavourable treatment relied upon for the purposes of the section 15 claim was the dismissal. The fact that the claimant was dismissed cannot be disputed. That is clearly unfavourable treatment. On the face of the respondent’s own dismissal letter they say it is because of her absence from work. That shows the reason for the dismissal, that is proven. The evidence before us shows that the claimant’s absence from work largely arose from her anxiety and depression (her disability.) The claimant’s sickness absence from work from around 5 August 2022 is “something arising in consequence of disability.” Thus far the section 15 claim succeeds.

[76]If the respondent had been present in these proceedings it would have had the opportunity to pursue a defence to the claim on the basis that the unfavourable treatment was a “proportionate means of achieving a legitimate aim”. The case management order indicates that the legitimate aim relied upon by the respondent was the “efficient running of the business”. That is a potentially legitimate aim. The Tribunal considered whether, on the basis of the information available, we could find that that was a successful defence to this claim, notwithstanding the respondent’s absence at the final hearing. However, the first problem is that the claimant was apparently dismissed and not replaced. There is no evidence before us that there was any sort of a plan to cover the claimant’s work after her dismissal or that there was any form of reorganisation to cover her work once she was not present to do the work. In light of that, we cannot conclude that dismissing the claimant actually achieved the stated legitimate aim. How would dismissing the claimant (who was the only person doing this job) protect or further the efficient running of the respondent’s business? That is illogical. The Tribunal can envisage circumstances where a small business cannot support long term sickness absence on the part of a key employee. Such an employer can only wait for so long before they decide that they really need the employee to come back to work so that the work is adequately covered. However, if that were the case, one would expect to see some discussion of a plan for the business after the employee’s dismissal. So, in this case, if the business cannot cover the claimant’s absence, then dismissing the claimant is not going to help the respondent unless there is a replacement employee or a reorganisation plan to reallocate work and ensure it is covered after the dismissal. The Tribunal does not have any such evidence before it in this case.

[77]The Tribunal can also envisage potential circumstances where a business might want to streamline its operations and realises (during the employee’s absence) that it is more efficient and cost effective to cover her work with other employees/merge teams of employees or otherwise divide the employee’s work up so that she effectively becomes surplus to requirements. Once again, there is no evidence to show that this is what happened in this claimant’s case.

[78]The Tribunal would also have to consider whether it was proportionate to dismiss the claimant in achieving any legitimate aim. The timeline is important here. The respondent classed this as long term absence. Technically it may qualify as long term but in reality we are considering a period of six weeks between the start of the absence and the dismissal. What about the respondent waiting to see if there might be an improvement in the claimant’s condition? Why did the respondent proceed straight to dismissal? Why was six weeks the point where they could not wait any longer? Why was the respondent not looking at alternatives to dismissal or exploring ways to get the claimant back to work? Why did the respondent not look at the occupational health recommendations? The occupational health report discusses different ways of communicating with the claimant, about getting help in communicating with the claimant. It also refers to sources of support for the claimant. The respondent could arguably have waited to see if this support made a positive difference to the claimant. The respondent might also have considered acknowledging the claimant’s mental health issues and altering the tone of communication with her in an attempt to rebuild bridges.

[79]All of the above factors lead us to conclude, based on the available evidence, that dismissing the claimant was not a proportionate way of achieving the respondent’s stated legitimate aim. Consequently, the section 15 claim is well founded and is upheld. Harassment

[80]The harassment claim relates to a comment which was made at the start of the phone call on 12 August (as set out above). It is summarised in the case management order as the comment where Mel Stead said, “You are not about to have a breakdown Georgie, you are IN a breakdown”. The claimant’s evidence in relation to this is unchallenged. The alleged comment is in keeping with the tone of the surrounding correspondence at this point. The Tribunal also notes that that the respondent didn’t specifically deny the comment in its defence to the claim either. Accordingly, the Tribunal is satisfied that the comment was in fact made, as alleged. We are also satisfied that the comment related to disability because it refers to a ‘breakdown.’ That is basically an explicit reference to the disability in question. That comment was evidently unwanted. Nobody wants to be told that they are in the middle of a mental breakdown. The comment was not supportive or designed to help. It seems to be an accusation or a disparaging remark. It certainly does not seem to be constructive. Further, if it is looked at in the context of the conversation, it is not relevant to the topic of the conversation (which is the discussion about commission.) In reality that sort of comment ‘torpedoes’ the conversation from the start.

[81]Given the surrounding circumstances, the evident souring of relationships between the parties, and the factual content of the comment, we are satisfied that this comment did have the effect of violating the claimant’s dignity and creating a hostile, degrading, offensive or intimidating environment for her within the meaning of section 26. We are satisfied that she subjectively found it to have that effect and we are also satisfied that it was reasonable, in all the circumstances, for that comment to have that effect on her. All the component parts of the section 26 claim are established and so the claim of harassment is well founded and is upheld. Reasonable Adjustments

[82]The list of issues attached to the case management order sets out the PCPs which are relied upon. The first PCP is: “requiring the claimant to attend the respondent’s offices to undertake her role as a Senior Recruitment Consultant.” The Tribunal heard evidence that the claimant agreed with the respondent (when she restarted work in November 2021) that she would work two days a week from home on a regular basis. This was for a number of reasons but included to facilitate attendance at various appointments which the claimant could work around if she was not having to travel into the office on the same day. There were support meetings for the claimant’s daughter’s mental health (CAMHS), family support meetings, and counselling for the claimant in relation to her previous marriage, amongst other things. It was intended that the claimant would work from the office on the other three days of the week. The claimant sometimes had meetings with clients. It is apparent that all her other work could actually be done remotely. The Tribunal understands that the claimant was training other employees and of course it would be easier to supervise and train someone if both people are physically in the same place. However, it is not necessarily essential. The fact is that it had been agreed that two days a week could be worked from home, even though the claimant was going to be training others.

[83]The claimant’s evidence gave us examples of when she had to stay at home for various reasons (such as lack of transport because the car broke down, emergencies with her daughter and the hospital.) In those circumstances the respondent allowed her not to attend, although pay was docked. The real issue here was where the respondent demanded that the claimant come into the office on days which were supposed to be working from home days. The reasons given for this have included that there was a meeting that the claimant needed to attend, or that the claimant needed to be in the office to supervise people or ‘to be seen to be the senior employee.’ The content of the emails and the correspondence comes across as somewhat arbitrary. If there was an agreement that the claimant could work two days a week from home in principle, then why was the respondent departing from that? Where is the good reason why the claimant’s normal working from home arrangement cannot be accommodated?

[84]The claimant gave evidence that there was an insistence on her being in the office on a Monday on occasions which would mean that she would have to cancel her planned appointments and would not be able to rearrange them. She would just lose them. She would also not be able to take a day in lieu to work from home later in the week as compensation for being in the office when she had not been expected to be. Another key feature of the evidence was that the claimant found that working from home helped her manage her symptoms from her disability. If she felt tearful or shaky or found it difficult to maintain her composure this could be better managed from home where she was not ‘on show.’ She could carry on working and nobody would see what sort of emotional state she was in. By contrast, if she was in the office she had to try and perform and keep her composure and would need to go off to the ladies’ toilets to try and regain composure. ‘Keeping a lid on’ the symptoms of the disability made them harder to manage and made it harder for her to function in her role.

[85]The documents show that the respondent had some form of attendance management procedure. That is what they purported to implement when they called her in to the meetings. They suggested that they needed to review attendance and take steps in relation to it. The Tribunal has not seen the document in question but we are prepared to accept that it existed. It is likely to have made provision in relation to appropriate levels of attendance and steps to be taken where employees fail to maintain adequate levels of attendance.

[86]The first PCP was requiring the claimant to attend the office to do her role. The claimant has clearly established that. The second PCP is the respondent’s attendance management policy, again the existence of such has been established given the evidence available to the Tribunal.

[87]The Tribunal then has to consider whether the PCPs put the claimant at a substantial disadvantage compared to someone without her disability. The alleged substantial disadvantage in the case management order is that the disability made it difficult for the claimant to maintain regular attendance at the office and rendered her more liable than a non-disabled person would be to find herself being managed pursuant to the Absence Management Policy.

[88]The evidence shows that the substantial disadvantage is established in this case. The claimant struggled to maintain composure sometimes and needed to work from home in order to work effectively. Requiring her to attend the office for work with her disability was more likely to make her struggle to attend work. If the claimant was not then allowed to work from home as an alternative, the only remaining alternative for the claimant was to be off work, sick. That would force her into taking sickness absence. An employee with the claimant’s disability was more likely to be put in that predicament and more likely to have increased absence levels than someone without her disability.

[89]Likewise, the claimant had an inbuilt disability related need to work from home in relation to attending counselling sessions. If she actually insisted on going to the appointments and her employer refused to let her work from home on the day in question, she would have no alternative but to be absent from work altogether in order to go to the counselling session. Again, that would increase the claimant’s likely level of absence compared to that of a non-disabled person. In practical terms, that means that someone with increased levels of absence is more likely to have the absence management policy applied to them. The provisions of the attendance management policy are more likely to ‘kick in’ than in the case of a non-disabled person. The policy will apply to all employees but it is more relevant to somebody who is struggling to come into work because of a disability, who needs time off work or isn’t allowed to work from home as a compromise. The Tribunal is satisfied that the substantial disadvantage is established in relation to the two PCPs in this case.

[90]The Tribunal is also satisfied that the respondent knew or ought reasonably to have known that those PCPs were likely to put the claimant at the substantial disadvantage. The duty to make reasonable adjustments is therefore triggered.

[91]What would be reasonable adjustments in this case and should the respondent have made them? The claimant says that she should have been permitted to work from home. We found that it would be reasonable, in the absence of a good reason to the contrary, to allow the claimant to work from home. That is underlined by the fact there was already an agreement to allow that to happen for two days per week. That in itself shows that it was feasible and reasonable and that the work could be done from home. It also shows that it is not essential for the claimant to be in the office 100% of the time in order to train or supervise other staff. Otherwise the claimant would have been required to be in the office all of the time from the outset.

[92]The Tribunal took the view that when the respondent insisted that the claimant had to go in to the office at short notice, it was incumbent on the respondent to show why this was necessary. Why would this be a reasonable instruction? The evidence we have heard suggests that on occasion (it is not possible to say how often) the respondent did not have a good reason for insisting on the claimant’s attendance at the office. On those occasions they could (and should) have abided by the previous working from home agreement. A failure to do so was a failure to make reasonable adjustments.

[93]The two other adjustments were deferring management under the attendance management policy and postponing any work, health or return to work meetings until the claimant was fit to attend them. The Tribunal did not understand why the respondent had to accelerate through its processes and procedures quite so quickly. Within about a fortnight of the start of the claimant’s absence the respondent was looking at absence management. Likewise, there is evidence that the claimant was asking the respondent to postpone meetings until she was fit to attend. She was signed off work. The evidence was that the interactions were a problem. The respondent did not acknowledge that at all and pressed on regardless. They were intent on pushing this to a conclusion without any apparent delay. Hence, they ended up dismissing her in her absence. We are satisfied that it would have been reasonable to delay and defer these meetings in line with the proposed adjustments, at least for a period. The case concerns a six week period from start to finish. Of course, there may come a point where the respondent has to proceed with meetings even if the claimant isn’t fit to attend (no employer can wait forever) but this is not one of those cases which reached the point where further delay was unreasonable. Again, the Tribunal is satisfied that all three proposed adjustments could and should have been made by the respondent and so the claim for reasonable adjustments is upheld.

Remedy

[94]In the Schedule of Loss the claimant made reference to Vento bands for injury to feelings. Given the date that the claim was submitted to the Tribunal (after April 2022) the applicable Vento brackets include a middle bracket of £9,900 to £29,600. We concluded that this is a middle bracket case but at the upper end of the bracket. Our actual award for injury to feelings was £27,000. The reasons for that are that we heard quite a lot of evidence to show how this impacted upon the claimant. When the claimant came back to work in November 2021 and started working for the company, the claimant’s health was actually improving. The claimant had been through the Covid pandemic and she had had the resilience and the strength to go and get work which required her to work away from home during the pandemic. All the evidence suggests that, although the claimant was still suffering with depression and anxiety, she was coping. The Tribunal also recognised that there were other factors that were impacting on the claimant’s mental health, it was not all attributable to the employment. Some of it was connected to her previous marriage and the severe health crises of the claimant’s younger daughter. (Further information was given about the claimant’s daughter’s situation but it is not necessary to include this sensitive information on the public record of the Tribunal’s decision.) The claimant has had to attempt to deal with all of this and to support her daughter. So, the Tribunal has tried to separate out the portion of the injury to feelings that was caused by the discriminatory acts of the respondent and leave out of account those elements which are attributable to background matters and are unrelated to the claimant’s employment.

[95]The Tribunal concluded that the crucial act of discrimination was the dismissal. That had significant practical consequences which adversely affected the claimant’s mental health as well as causing practical difficulties. The claimant gave evidence that she had now had to fight to keep her house and to provide for her children without adequate income. This would not have happened in the absence of the discriminatory dismissal. It made a serious difference to the claimant’s life. It gave her significant problems to cope with and has clearly exacerbated her mental health issues significantly. Indeed, this pressure could be said to have tipped the claimant ‘over the edge’ so that she became unfit to work. She has, we hear, remained unfit to work ever since the dismissal. Prior to the dismissal she was actually only absent from work for six weeks. There is no suggestion in the evidence before us that she would have become completely unfit to work for an extended period of time in the absence of the discrimination. This is not, for example, a case where the claimant had been off work for twelve months or more prior to the dismissal.

[96]The Tribunal heard that the claimant has been on medication throughout the period. We heard that she sees her GP once a month. The GP clearly feels that the claimant benefits from that regular support and monitoring. The claimant has been unable to contemplate looking for other work. We are satisfied that that is genuine. Evidence that she has given indicates that she struggles to leave the house without someone with her and without encouragement and support. She told us that she does not socialise unless strongly encouraged to do so by family. She struggles to interact with other people and is frightened of breaking down when others are present or of crying in front of them.

[97]All of this shows that the psychological impact of the discrimination on the claimant is significant and ongoing. It is on that basis that we have made the award for injury to feelings at £27,000. The claimant had been resilient before the discrimination in the face of many challenges, she had coped and kept on coping. It was the discrimination which was the final straw and that has to be reflected in the injury to feelings award.

[98]On top of the £27,000 we have awarded the interest that the statute requires us to consider, that is at 8% from the date of dismissal to the 20 June which is today’s date. This amounts to £5,935.56.

[99]We then looked at the financial losses that the claimant has suffered. These are primarily the past loss of earnings. We accept, based on everything I have set out, that she is not fit to mitigate her losses and find alternative work up to today’s date. We have therefore awarded full loss of earnings from the date of dismissal to today’s date. That accounts for £56,518.02 in terms of net loss of earnings.

[100]The claimant helpfully provided us with details of the benefits she has claimed during the relevant period. The Universal Credit is to be deducted from the damages so that she isn’t receiving the same money twice (so-called double recovery). The amount to be deducted for Universal Credit is £19,882.23. This leaves a net loss of earnings of £36,635.79.

[101]We also had details of Personal Independence Payments and, on reflection, we have concluded that they should not be deducted because they are a different type of benefit and they are not intended to be a replacement for loss of income through employment. On that basis we have not taken that off the award of compensation.

[102]I have calculated interest on the loss of earnings award and that amounts to £4,022.91.

[103]We considered whether to make an award for future loss of earnings. Firstly, the claimant did not request an award for ongoing loss of earnings. More fundamentally we have no basis on the available evidence to estimate how soon the claimant will recover and be able to get another job. The Tribunal would be entering into the realms of speculation. We are hopeful that the conclusion of these proceedings and the vindication that this judgment provides will assist in that process, but we have decided not to make an award for future loss of earnings.

[104]Pension loss was mentioned in this schedule. The claimant was in a NEST scheme, which is a defined contribution scheme, not a final salary scheme. The claimant’s own contributions to the pension are covered by the award for loss of earnings. If the money is paid, she will have that available to put into a pension. The employer would also have contributed to the pension pot and the available resources online show us that employers’ contributions would be 3% of qualifying earnings above a threshold of £6,240. I calculate that that means that the employer would be putting about £712.80 per year into the pension pot on behalf of the claimant. Therefore, I have done a calculation and the employer contributions for the period is £1,960.20. I have added 8% interest on that from the mid-point and that gives £215.25.

[105]All of this may lead the claimant to wonder how we have ended up with a total award of £87,212.14. That is because of tax. The first £30,000 of any award we make is given tax free. Above that level the claimant would be taxed on the excess. The Tribunal has to perform a calculation to ‘gross up’ the award to make sure that the claimant gets the full value of the award after deduction of tax. The Tribunal has performed that calculation so that after deduction of tax the claimant should be left with the correct net figure. That is why the total award is £87,212.14. Approved by: