Ms C Tyerman v Sheffield Health and Social Care NHS Foundation Trust and The Rotherham NHS Foundation Trust: 1802545/2021

EMPLOYMENT TRIBUNALS

Case No 1802545/2021

Between

Ms C TyermanClaimant

Sheffield Health and Social Care NHS Foundation Trust and The Rotherham NHS Foundation TrustRespondent

Before

Employment Judge Brain

Members

Dr P C Langman

Mr A J Senior

Mr S Keen (instructed by Counsel) for claimant

Date 24 November 2022

JUDGMENT

[1]All of the claimant’s complaints against the first respondent fail and stand dismissed.

[2]Except for the matter referred to in paragraph 3, all of the claimant’s complaints against the second respondent fail and stand dismissed.

[3]There was harassment related to disability which had the effect of violating the claimant’s dignity upon the basis of the email within the hearing bundle at page 1314.

[4]It is just and equitable to extend time to vest the Tribunal with jurisdiction to consider the complaint in paragraph 3. 10.5 Reserved judgment with reasons – rule 61 1 March 2017

[5]From the date of commencement of her employment with the first respondent until 31 March 2021, the claimant worked on behalf of the second respondent in the capacity of a contract worker as defined in section 41(5) of the Equality Act 2010.

[6]The first respondent was not at the material time acting as the agent of the second respondent. Accordingly, no liability arises under sections 109(2) and 110 of the 2010 Act.

REASONS

[1]On 30 June 2021, this case was listed for a 10 days’ hearing commencing on 24 January 2022. The matter was listed for hearing upon these dates pursuant to an Order made by Employment Judge Smith at a case management preliminary hearing held on 22 June 2021.

[2]Employment Judge Smith set out a hearing timetable at clause 5 of the case management minute (which is copied into the hearing bundle at pages 136 to 150). The first day was to be for the Tribunal’s reading. The matter was then timetabled for the hearing of evidence, submissions, deliberations and judgment.

[3]The matter was listed for a preliminary hearing before the Employment Judge which was heard on 20 January 2022. This was listed pursuant to a specific disclosure application made by the claimant dated 20 December 2021. After hearing submissions from counsel, Orders were made for the service of disclosure statements and for the provision of specific disclosure by the respondents. The timetable directed by Employment Judge Smith was varied.

[4]Two days of reading-in time were scheduled. The remainder of the 10 days’ listing was scheduled for the hearing of all parties’ evidence. The Tribunal directed that an additional one day would then be listed for the receipt by the Tribunal of the parties’ submissions.

[5]In the event, the matter went part heard on 4 February 2022 before the completion of the respondents’ evidence. This evidence was concluded on 22 June 2022.

[6]The Tribunal then gave a direction for the parties to file and serve written closing submissions. 25 July 2022 was utilised by the Tribunal for the purposes of reading the submissions. The Tribunal heard oral submissions from each counsel on 26 July 2022. The Tribunal then reserved judgment. We now give reasons for the Judgment that we have reached.

[7]The Tribunal was presented with a bundle which ran to 10 lever arch files and which was described as the ‘hearing bundle and additional disclosure bundle.’ This ran to 3685 pages. During the course of the hearing in January 2022, further disclosure was given by the respondents. Around 250 additional pages were added. The hearing bundle and additional disclosure bundle thus ran to 3936 pages. In addition, the Tribunal was presented with a ‘policy documents’ bundle. This ran to two lever arch files consisting of 649 pages. 10.5 Reserved judgment with reasons – rule 61 2 March 2017

[8]The Tribunal heard evidence from the claimant. Her evidence in chief was presented in the form of a written witness statement which ran to 56 pages.

[9]The following witnesses were called by the first respondent: 9.1. Dr Sara Whittaker. She is employed by the first respondent as a consultant clinical psychologist. Her evidence in chief was in the form of a witness statement which ran to 63 pages. 9.2. Linda Wilkinson. She is employed by the first respondent as the director of psychological services and consultant clinical psychologist. Her witness statement ran to 17 pages. 9.3. Phillip Easthope. He is employed by the first respondent as executive director of finance. His witness statement ran to 13 pages.

[10]The second respondent called evidence from the following: 10.1. Johanna Wilman. She is employed by the second respondent as a clinical lead at the Child Development Centre based in Rotherham. Her witness statement ran to 14 pages. 10.2. Victoria Whitfield. She is employed by the second respondent as a service manager for Children’s Community Services based in Rotherham. Her witness statement ran to 11 pages. 10.3. Gillian Willers. She retired on 31 March 2021. She was employed by the second respondent as general manager and latterly as divisional director for family health. Her witness statement runs to five pages.

[11]The parties had co-operated before the hearing commenced. As directed, the Tribunal was presented with an agreed cast list and an agreed list of issues. The first respondent and the claimant each presented a helpful chronology of events. Although similar, the chronologies are not identical and were read in conjunction.

[12]The claimant’s claim against the respondents arises out of her employment with the first respondent as a clinical psychologist. She was employed in that capacity between 21 April 2020 and 29 July 2021. Her contract of employment of that date is in the bundle at pages 258 and 259. She pursues complaints of disability discrimination, in particular: 12.1. Direct discrimination because of the protected characteristic of 12.2. Unfavourable treatment for something arising in consequence of her 12.3. That the respondents failed to comply with the duty to make reasonable adjustments.

[13]In addition, the claimant pursues a complaint of harassment related to disability. She also brings a complaint of victimisation.

[14]The complaint is brought against the first respondent in their capacity as her employer. The complaint against the second respondent is brought upon the basis of her being a contract worker and that pursuant to section 41 of the Equality Act 2010 the second respondent has a liability towards her by virtue of the arrangements made between the claimant and the respondents 10.5 Reserved judgment with reasons – rule 61 3 March 2017 whereby the claimant was engaged to work at the Child Development Centre in Rotherham. The second respondent accepts that the claimant was a contract worker and has standing to pursue her claim against them upon that basis. We shall consider this issue further in due course.

[15]The claimant also sought to bring a claim against the second respondent in their capacity of a principal pursuant to section 109 of the 2010 Act. This claim was not pursued with great vigour by Mr Keen on the claimant’s behalf. Nonetheless, we shall consider it in due course. We now turn to our findings of fact. Much of the factual evidence is uncontroversial and may be taken from the parties’ witness statement. (Of course, the parties’ interpretation of events differs markedly). Where there is a dispute of fact then we shall explain how this has been resolved.

Findings of fact

[16]The Child Development Centre (known internally as the “CDC”) is based at Kimberworth Place in Rotherham. It is operated by the second respondent. Johanna Wilman says, in paragraph 7 of her witness statement, that, “The multi-disciplinary team (‘MDT’) at the CDC provide assessment and treatment for children under five years of age who are having difficulty in more than one area of their development. The team works in partnership with parents and schools to develop individual plans for each child.”

[17]She goes on to say in paragraph 9 of her witness statement that, “Since approximately 2013/2014, [the second respondent] commissioned [the first respondent] to provide a clinical psychology service for the Child Development Service in Rotherham. The psychology service formed part of the MDT [multi-disciplinary team] and was to offer assessment and therapy to under 5-year-olds and their families. Their main role was to consider the way a child thinks, learns and reacts to situations.”

[18]Dr Whittaker says in paragraph 4 of her witness statement that, “For a number of years, [the second respondent] had an arrangement with [the first respondent] whereby the Trust [the first respondent] would employ one or more clinical psychologists who would work within Rotherham’s Child Development Centre, or the CDC, a multi-disciplinary team of specialists supporting children under the age of 5 who are having difficulties in development. Although I am not familiar with the details of the initial contract, I am aware that the arrangement was formalised in a contract between [the respondents].”

[19]Dr Whittaker then gives some helpful information in paragraph 5 of her witness statement about the clinical psychologists’ roles. She says that, “The NHS terms of employment work on the basis of each role being banded by reference to a number. The band determines the seniority of the employee and the level of pay. In this case the relevant bands are bands 6 to 8, band 8 being more senior. A trainee clinical psychologist is a band 6 role. To become a qualified clinical psychologist a trainee clinical psychologist must complete and pass a three year training course and their thesis and be registered by the Health and Care Professions Council (“the HCPC”), the statutory regulatory body for clinical psychologists. A qualified clinical psychologist is a band 7 role. A senior clinical psychologist is an 8a role, and the principal clinical psychologist is a band 8b role. A consultant clinical psychologist is a band 8c-d/9 role.” 10.5 Reserved judgment with reasons – rule 61 4 March 2017

[20]In paragraph 6 of her witness statement Dr Whittaker gives evidence that the claimant “was recruited by Dr Rebecca Haines, who was the [first respondent’s] CDC manager before me. The Trust advertised for a band 7 clinical psychologist to work in the CDC. [The claimant] applied for the role and Rebecca interviewed and recruited her during October 2019. Rebecca retired in late 2019 and I took over her management role with effect from 1 December 2019. Rebecca left a handover note which contained a paragraph about [the claimant] (pages 3654 and 3656). In the handover note Rebecca said that [the claimant] had passed most of her training but not submitted her final dissertation and would therefore be appointed as a band 6 and move to band 7 when qualified.”

[21]Johanna Wilman was a member of the panel which interviewed the claimant for the role. She was accompanied at the interview by Rebecca Haines and Laura Mantle, psychologist.

[22]In light of this evidence, the second respondent’s concession that the claimant was a contract worker throughout the time of her employment by the first respondent is properly made. The second respondent was plainly a “principal” within the meaning of section 41(5) of the 2010 Act in that they made work available for the claimant who was employed by another person (that being the first respondent). The claimant was also supplied to the second respondent by the first respondent in furtherance of a contract to which the second respondent was a party (that being the contract between the respondents). The claimant therefore has standing to pursue a claim against the second respondent in her capacity as a contract worker.

[23]The claimant’s application form is at pages 237 to 256 of the bundle. It is dated 28 September 2019. She declared a “learning disability/difficulty” at page 253. In addition, Mrs Wilman said, in paragraph 14 of her witness statement, that, “There are two things that stick out about the claimant’s interview. Firstly, I recall that the claimant did ask if she could see the questions before the interview date. She said it was because she had dyslexia and wanted time to collect her thoughts before the interview. I had no problem with this and SHSC [the first respondent] made a compromise whereby the claimant was given an hour before the interview to read through the questions.”

[24]Dr Whittaker says in paragraph 6 of her witness statement that Rebecca Haines “shared with me that Miss Tyerman was dyslexic and that adjustments would need to be made.”

[25]In paragraph 11(a) of her closing written submissions, Ms Nowell on behalf of the first respondent accepted that they knew of the claimant’s dyslexia from the date of the interview. Mr Grundy, on behalf of the second respondent, made the same concession in paragraph 15 of his written submissions.

[26]In paragraph 15 of her witness statement, the claimant says that she confirmed at interview that she had been diagnosed with dyslexia since the age of 24 and that she was disabled. She refers to page 253. She does not claim to have disclosed any other disabilities to the respondents at this stage. 10.5 Reserved judgment with reasons – rule 61 5 March 2017

[27]The claimant was verbally offered the role by Dr Haines on 17 October 2019. The first respondent envisaged her starting in December 2019 or January 2020 (according to an email from Rebecca Haines to Dr Whittaker of 13 November 2019 at page 918). At the time when she was recruited by the first respondent, the claimant was working for the Sheffield Children’s Hospital Foundation Trust as a children’s in-patient clinical psychologist. She was contractually obliged to give two months’ notice of termination to her then-current employer.

[28]In paragraph 16 of her witness statement, the claimant says that Rebecca Haines informed her that “as the clinical psychologist I would support the principal psychologist band 8a at the CDC who in turn would supervise me but there should be quick progression for me to a band 8a role. The current child clinical psychologist at the CDC was Lisa Moss.” The claimant goes on to say that she “found the role and prospect of progression appealing and decided to accept the role.”

[29]On 20 November 2019 Rebecca Haines informed the claimant that she was retiring. She notified her that Dr Whittaker would be taking over the management of her role with effect from 1 December 2019. Rebecca Haines also confirmed that the claimant would initially be appointed at band 6 and would then be moved to band 7 upon qualification. The expectation was for her to qualify within six months of starting the post. The relevant email is at page 923.

[30]On 14 November 2019, the claimant underwent health screening conducted by PAM Occupational Health Solutions to assess her suitability for employment. This is an external occupational health provider working on behalf of the first respondent. The employment suitability report at pages 934 and 935 says that the claimant was disabled for the purposes of the 2010 Act and would require an assessment to be completed by Access to Work. In the screening report, Gillian Seddon (who was the author of it) made reference to an occupational health report which she had prepared. The occupational health report is at pages 928 and 929. It is dated 20 December 2019, the same date as the employment suitability report.

[31]Between the date of the health screening on 14 November 2019 and the preparation of the report on 20 December 2019, the claimant contacted Dr Whittaker by email. This is dated 2 December 2019 and is at page 926.

[32]In this email, the claimant introduced herself. She said, “Just to update you, I have not had the [health] checks back yet and as such have yet to hand in my notice. This is two months and I will do this when the checks are complete. I envisage this should be by the end of December or so but maybe January given the Christmas holidays. I am also aware my thesis hand in dates are slightly different to what I had thought. The deadline for my thesis is not until the end of February now so my qualification will be after that point. Therefore, I would like to suggest a provisional start date in March 2020 depending on when the checks are completed and everything is in place. I would also like for an assessment of my needs and adjustments for my disabilities to be arranged for the first week or two of my employment. This is to ensure everything is in place as soon as possible and so I have a speedier transition”. 10.5 Reserved judgment with reasons – rule 61 6 March 2017

[33]Gillian Seddon’s occupational report is at page 928. Gillian Seddon gave the following occupational health opinion: “Having discussed her health in detail, Catherine has several conditions, dyslexia, central auditory processing disorder (CAPD) and dyspraxia. I do not consider the dyspraxia will affect her work, however due to the dyslexia and CAPD, Catherine will need support in the workplace. Dyslexia is a specific learning difficulty that affects reading and spelling and can affect the way a person processes and remembers information, therefore it can affect organisational skills. Catherine appears to have coping strategies to manage this condition and has had specialist regular support, she has previously used voice activated software. CAPD is a condition which can make it difficult to understand and interpret information presented orally, especially if there is a lot of background noise, poor sound quality, or a lot of people talking at once. There is no problem with the person’s hearing, it is how the brain processes the information. This can cause miscommunication, problems remembering instruction. However, if Catherine has a quiet area to work, she uses a headset to make calls, to help her to focus and uses a mobile to organise her activities and appointments this helps her to manage her difficulties.”

[34]Gillian Seddon went on to opine that the claimant was fit for the role of clinical psychologist. She said, “I am of the opinion Catherine will be considered as having a disability under the provision of the Equality Act 2010.” She said that the claimant “will require permanent adjustments in the workplace to support her to work. I recommend Catherine has Access to Work come in and complete a workplace assessment, to recommend any specific equipment which may be needed and they can offer support in regards to dyslexia. Once Catherine has a start date, she can contact Access to Work to arrange for them to come in and complete the workplace assessment. In regards to other adjustments, I suggest if operationally feasible, she has the facility to work from home to do any reports which require concentration to avoid distractions, she has a work mobile phone to organise her work and has the option of flexible working. I recommend Catherine has a DSE assessment, she will require a headset to reduce external noise distraction and to help with focused concentration when making calls.”

[35]Gillian Seddon’s notes of her consultation with the claimant are pages 930 to 933. The note at page 930 records that the claimant suffered from Post Traumatic Stress Disorder symptoms, depression and anxiety “following four years of discrimination at work.” The claimant told Gillian Seddon that she was undergoing counselling for the PTSD.

[36]Dr Whittaker received a copy of Gillian Seddon’s report. On 9 January 2020 she emailed the claimant to ask if she was happy with the recommendations within it and whether she required anything else. We refer to page 948.

[37]In evidence given under cross-examination, Dr Whittaker said she had no recollection of seeing the notes at pages 930 to 933. It was put to the claimant by Miss Nowell that only the report goes to the employer but not the notes. The claimant, quite properly, said that she was unable to comment upon this issue. We accept Dr Whittaker’s evidence upon this 10.5 Reserved judgment with reasons – rule 61 7 March 2017 issue, there being nothing to suggest that the notes at pages 930 to 933 were copied to her (or anyone else within the first respondent).

[38]On 8 January 2020, the claimant received her formal offer of employment (pages 948 to 949). The offer was of the post of a band 6 clinical psychologist working at the CDC for 30 hours a week. The email from Ella Shore, recruitment officer, mentions the occupational health report. She said that the items may be available through Access to Work. The claimant replied to the effect that in order to get an assessment from Access to Work she needed a start date.

[39]A start date of 13 March 2020 was agreed. The claimant says in paragraph 23 of her witness statement that this was a tentative agreement which had been suggested to her by Dr Whittaker on 9 January 2020 (pages 955 and 956). This enabled the claimant to make her application to Access to Work.

[40]On 28 January 2020, the claimant was informed that Lisa Moss, the band 8 psychologist at the CDC, had handed in her notice. According to paragraph 9 of Dr Whittaker’s witness statement, Lisa Moss was “due to leave in or around April 2020. Lisa agreed to delay her leaving date so she could hand over to Miss Tyerman.” She goes on to explain that “Lisa’s departure didn’t change Miss Tyerman’s appointment, as the two roles had different responsibilities and the responsibilities of Miss Tyerman’s role still remained. The one difference would be clinical supervision for Miss Tyerman; this would have been done by Lisa and would be provided by me instead. I agreed to offer clinical and line management supervision to Miss Tyerman to enable her to settle into the Trust and to the CDC and to ensure we had clarity in our guidance and approach. This was my preferred option in the first instance as I was based in the same building as Miss Tyerman, and we anticipated that I could therefore be available to her, and we could meet in person.”

[41]As she explained in paragraph 2 of her witness statement, Dr Whittaker was at this time based at Kimberworth Place. She goes on to say in paragraph 9 of her witness statement that these plans were upset by the onset of the pandemic.

[42]On 15 January 2020, the claimant emailed Dr Whittaker (pages 960 and 961). She said that she had applied to Access to Work but had not heard from them yet. However, she said that she was happy to hand in her notice to her current employer “at the end of the week”. That was Friday 17 January 2020. The parties therefore envisaged the claimant commencing work on or around 17 March 2020.

[43]Also on 15 January 2020, the claimant sent Dr Whittaker the three medical reports which are in the bundle commencing at pages 861, 893 and 1635 respectively. Dr Whittaker acknowledged, during cross-examination, that she had received all three reports.

[44]The report commencing at page 861 was prepared by Ged Desforges of the Sheffield Regional Assessment Centre on 29 April 2013. The aim of the report (as stated at page 863) was to identify the additional expenditure which the claimant was obliged to incur in order to attend a designated higher education course because of a disability or specific learning difficulty. 10.5 Reserved judgment with reasons – rule 61 8 March 2017 By way of background information (at page 864) reference is made to a confidential assessment report dated 14 November 2012 completed by David Bottomley, a qualified psychologist with Dyslexia Action. This concluded that the claimant showed evidence of dyslexia. The report prepared by Dyslexia Action was to the effect that the claimant was significantly affected by dyslexia.

[45]Mr Desforges then reported upon his findings. The Tribunal was taken to the following passages:  That the claimant found it difficult to identify the correct spelling of “linking words” used to identify related areas of research.  She had difficulty posed by her inability (due to a poor working memory and slow speed of writing) to take effective notes of the suggestions and advice from academic staff as to potentially rich sources of information.  She can struggle to take effective notes of research material.  Her ability to focus on material for the requisite length of time is influenced by her experience of visual stress.  Composition of academic work can take time due to poor spelling, slow speed of writing and failure to follow a logical and coherent structure.  Proof reading, note taking and time management and organisation were all impacted.

[46]A number of recommendations were made including the provision of equipment. This included TextHelp Read and Write Gold with Web Extension and Dragon Naturally Speaking 11 with a USB headset together with other equipment.

[47]The report commencing at page 893 is dated 20 December 2017 and was prepared by Catherine Brockway. It describes the support arranged by “Trust” for her dyslexia. We presume the “Trust” referred to here to be the Derbyshire Healthcare Foundation Trust which was the claimant’s employer between October 2015 and November 2019. Regular breaks were recommended.

[48]The report commencing at page 1635 is a report prepared by Katherine D’Arcy Brown, chartered occupational psychologist. She has a specialisation in adult dyslexia. The assessment was carried out on 1 July 2016 during the time of the claimant’s employment as a trainee clinical psychologist with Derbyshire NHS Trust.

[49]This report refers to her diagnosis of dyslexia. Katherine D’Arcy Brown opined that the claimant’s “dyslexia does form a barrier to her being able to manage the significant work pressure demanded on this particular course of work training. It would therefore be appropriate to make adjustments to accommodate those difficulties and to produce a more level opportunity for success.” She noted that the claimant was “constantly compensating for underlying cognitive differences in brain structure and therefore is subject to experiencing fatigue which should be taken into account when affording her rest periods from study.” She noted the claimant needed more time to 10.5 Reserved judgment with reasons – rule 61 9 March 2017 produce written assignments and to study and absorb new information. It was recommended that her work schedule and targets be adjusted to allow for the additional time and effort she needs to exert.

[50]Katherine D’Arcy Brown said that, “Catherine may need extra time to produce well structured and accurate written work such as reports, letters and even emails. Provision of a proof reading service is also recommended.” She also said, amongst other things, that appropriate logical support and rest periods from study should be considered.

[51]Dr Whittaker says in paragraph 12 of her witness statement that, “In terms of conditions the reports spoke only of dyslexia. I responded to the email [of 15 January 2020] to ask if Miss Tyerman had any reports from her recent employment and she replied to say that she didn’t have any (page 1001)”.

[52]The claimant in fact mentioned in her email at page 1001 her condition of ADD (Attention Deficit Disorder). That email is dated 3 February 2020.

[53]In her email of 28 January 2020 (at page 965) the claimant listed a number of things which she said would be really helpful “to start with”. She said that these are, “Laptop and computer with Dragon speech to text, read and write and mind view. (I spoke to IT here and I can keep the Dragon licence but not the laptop – the other software I am not sure about). Work phone or tablet for organisation and diary (can’t transfer). Noise reduction headphones for working in the office when its busy (I have my own I can use initially). And dictaphone (again I have my own for now). I’m chasing up Access to Work, and I will call SHSC IT department for details about sourcing software.”

[54]Also on 28 January 2020, Dr Whittaker asked the claimant if she was able to start before 16 March 2020. By this stage, the claimant had handed in her notice to her current employer. The claimant replied to the effect that she was able to leave her post early. She also mentioned a need to devote some time to finishing her thesis. The relevant emails are at pages 950 to 955.

[55]On 29 January 2020 Mrs Wilman emailed Dr Whittaker (pages 3764 to 3765). This was in connection with Lisa Moss’ resignation. Johanna Wilman said, “I spoke with Lisa this morning and asked if she would stay on the whole three months and work her notice. As you know we have hopefully a new starter [this being the claimant] due to join the team and it would be nice if there was some handover time. It might not work out well with Easter falling towards the end of Lisa’s time with us but at least we can try. I would like to talk to you at some point. I’m looking at alternative options to replacing Lisa and the 8a position. After two very difficult interviews and a host of vacancies, I am feeling very let down by psychology. I feel the team may benefit from a different approach and have been discussing this with Gill Willers. This time I do not want to lose the money to a cost improvement so I am exploring other avenues.” (This was one of the emails disclosed pursuant to the Order made on 20 January 2022. It was disclosed on 25 January 2022 pursuant to the Tribunal’s Order). 10.5 Reserved judgment with reasons – rule 61 10 March 2017

[56]Johanna Wilman mentions failed recruitment drives in paragraph 58 of her witness statement. In paragraph 8 of her witness statement, Victoria Whitfield says that, “Recruitment and retention of clinical psychologists is a national problem.” She has worked for the first respondent since August 2017. Her evidence is that since then “there has been a significant deterioration in the psychology service being provided by SHSC to the CDC. This deterioration has arisen because of chronic recruitment and retention difficulties which have led to: a reduction in the number of psychology appointments available; children having increasingly long waits to be seen; no consistency in staffing (which impacts on families as well as the effective working of the multi-disciplinary team); periods of time with absolutely no psychology service available whatsoever. These problems with the service have been getting worse not better, over time. Evidence of the staffing and performance issues is documented in the annual report 2019/20 (pages 936 to 943). The psychology service was affected by staffing issues more than any other element of the CDC team.”

[57]In paragraph 8 of her witness statement Victoria Whitfield corroborates this. She said that as, “recruitment and retention of clinical psychologists is a national problem, so TRFT were supportive of SHSC’s suggestions for alternative approaches to recruitment and retention in the summer of 2019. This included the decision to advertise for a band 7 clinical psychologist (as a development role) rather than continue to try to recruit more senior band 8a staff.”

[58]Mrs Whitfield says that the contractual arrangements between the respondents was renewed on a fixed term annual basis. Shortly before the claimant joined the first respondent as their employee, the contract had been renewed to cover the period between 1 April 2020 and 31 March 2021.

[59]Mrs Whitfield’s evidence about the second respondent’s concerns over the first respondent’s performance is corroborated by Gillian Willers. In paragraph 6 of her witness statement she says that, “The arrangement with SHSC regarding the psychology part of the service had been fragile for the past five to six years because of the many challenges faced relating to recruitment and retention”. In paragraph 8 she says that “experienced band 8a clinical psychologists were hard to recruit and retain.”

[60]It is not clear whether the “different approach” referred to by Johanna Wilman in the email at page 3764 to which we have just referred in paragraph 55 is a reference to the idea to recruit a band 7 clinical psychologist rather than a band 8 or to the idea to dispense with the first respondent’s services altogether. As we shall see, the latter is what subsequently occurred. Doubtless because the document was disclosed late, Mrs Wilman does not mention the email at page 3764 in her witness statement and she was not asked about it when she gave her evidence.

[61]What may safely be concluded is that the second respondent was unhappy with the psychology service being provided by the first respondent. This was against the backdrop of there being a chronic shortage of senior psychologists hence the first respondent’s suggestion to recruit at a more junior level to attract a newly qualified practitioner who could develop their skills in post. (Of course, the claimant was recruited at band 6 but this was solely because she had not yet qualified given that her thesis was pending). 10.5 Reserved judgment with reasons – rule 61 11 March 2017

[62]Returning now to the chronology of events, the claimant and Johanna Wilman met on 5 February 2020. Dr Whittaker was also in attendance. This was in fact the first time that Mrs Wilman had met with the claimant after seeing her at the interview the previous October. This was described by Dr Whittaker in her witness statement (at paragraph 13) as a positive meeting. This appears to have been a sentiment shared by Johanna Wilman and the claimant: their emails of 6 February 2020 at pages 1020 and 1021 convey a positive sentiment.

[63]Following the meeting, Dr Whittaker emailed the claimant and Johanna Wilman (and relevant others) to confirm what had been discussed (page 1008). At this point, it was envisaged that the claimant would start on 2 March 2020. There was to be a work assessment carried out by Access to Work. Dr Whittaker said that whatever emerged from the workplace assessment was “to add to TRFT CDC equipment/laptop etc. Jo to follow up return equipment to see if suitable – may need suitable bag.” There was then mention of a work mobile in order for the claimant to access her work calendar. It was confirmed that Dr Whittaker would act as her line manager and Johanna Wilman as the CDC local manager. The claimant was to work “primarily Tuesday to Friday.”

[64]In her email of 6 February 2020 to Johanna Wilman, the claimant said, “Don’t worry about the technology talk. I’m very used to it – it’s kind of my life. I very much appreciate the efforts you have made to source things and I will bring along my box of goodies. However, I am not quite sure yet where I will store this as they are quite expensive and the office is joint with many people.” Mrs Wilman told the claimant that the second respondent “already has a laptop in the department with Dragon software installed.” She asked the claimant if she was familiar with Dragon Pro15. The claimant replied to the effect that she was not sure for which version of Dragon she held a licence. In her email to the claimant (at page 1021) Johanna Wilman also mentioned that, “In addition we are chasing some noise cancelling headphones that we have on loan. We also have an Olympus Dictaphone that you can have access to and I have a mobile phone that you can use.”

[65]In evidence given under cross-examination, the claimant confirmed that there was some discussion at the meeting of 5 February 2020 about Lisa Moss’ pending retirement. The claimant fairly acknowledged that the meeting was positive, and that Dr Whittaker and Johanna Wilman were genuine in their efforts to welcome the claimant to the respondents and to accommodate her needs.

[66]In her evidence given under cross-examination, Johanna Wilman confirmed that the laptop with Dragon Pro15 installed to which she referred in her email at page 1021 was in fact being used by someone else at the time.

[67]On 25 February 2020 the claimant emailed Dr Whittaker and Mrs Wilman. She said, “I know I am just starting but I need to put in a request for some additional time to work on my thesis, 24 March to 10 April (two weeks). I will be willing to take this as unpaid leave.” She said that she had been unable to work upon her thesis due to illness. Dr Whittaker replied on 27 February 2020 to the effect that if she started later then she would not need to take unpaid leave. This was the first mention of unpaid leave. The relevant emails are at pages 1028 and 1029. 10.5 Reserved judgment with reasons – rule 61 12 March 2017

[68]Also on 25 February 2020 Mrs Wilman emailed Dr Whittaker (page 1034). She said, “I have been thinking about the emails we have had from Catherine and I think it would be in all our best interests if she delayed her start date until she has submitted her thesis. I need to find out from HR what reasonable adjustments we are expecting to make. Catherine will be part of the multi-disciplinary team and will need to be based in the office. That way she can learn the processes and be helped.”

[69]It was suggested to Johanna Wilman by Mr Keen that she was looking to delay the claimant’s start and was questioning the reasonableness of the adjustments required by the claimant. This she denied. She said, “I was thinking of her, she needed to finish her thesis and then concentrate on working.”

[70]There is merit in the claimant’s suggestion that Johanna Wilman was questioning the reasonableness of some adjustments. On 25 February 2020 Mrs Wilman emailed Dr Whittaker (page 3852). She said, “Can we please meet to discuss the difficulties Catherine our new clinical psychologist is finding at the prospect of starting work. I will also be asking Vicky Whitfield, service manager to assist as I feel that some of the adjustments are not reasonable and cannot be accommodated.” (This email was also disclosed pursuant to the Order of 20 January 2022. It was disclosed on 27 January 2022).

[71]Also on 25 February 2022, an email was received by Dr Whittaker and Mrs Wilman from the claimant (pages 1031 and 1032). The claimant opened by thanking them for sorting out her equipment needs. She then raised an issue with hot desking within the office. She said, “With my difficulties and equipment requirements I do not think that hot desking as it stands is going to be suitable at all for me. I have serious worries and this has triggered some stress over the prospect of hot desking. I have attempted this before at previous jobs and unfortunately I am unable to function in that sort of environment. With my distraction issues noise cancelling headphones are somewhat effective but cannot remove the problem as people moving around are very distracting. In addition with my working memory difficulties associated with my dyslexia the stress of having to move around and remember to bring in and move around all the equipment, books and other items is just not going to be feasible and has already caused me stress and anxiety contemplating the prospect. Furthermore, I have also packed the bag I will be using and it is too heavy and cumbersome to be carried on the bike I was planning to use to get to work. Ultimately, I need an adjustment that helps me with all of this, or as much as is feasibly possible.”

[72]In the same email she then says that she has “come up with a few adjustments that may work.” These were:  “Having one of the rooms to work in while I am there, booked out for me by someone else as due to my working memory I will forget to do that.” She said that, “This would combat both the distraction and the memory issues with regards to moving things around.”  “To be able to work at home when I have to write anything up.” 10.5 Reserved judgment with reasons – rule 61 13 March 2017  “To have my own designated workspace within the hot desking. I am aware that this may cause other staff issues but would resolve some of the working memory issues with regards to remembering items and to log off all the time.”

[73]It was accepted by her in cross-examination that this was the first occasion upon which the claimant had raised the issue of hot desking.

[74]The Access to Work assessment took place on 25 February 2020. The report was produced in early March 2020.

[75]In the meantime, the claimant and Dr Whittaker spoke on 28 February 2020. Dr Whittaker prepared a note (apparently dated 6 March 2020) of what was discussed. This is at pages 1052 and 1053.

[76]Dr Whittaker noted that she told the claimant that she and Johanna Wilman had met following receipt of the claimant’s email of 25 February 2020 referred to in paragraphs 71 and 72. Dr Whittaker fed back to the claimant in the discussion of 28 February 2020 that Johanna Wilman was concerned about the claimant spending too much time at home or in different rooms away from the CDC team. Johanna Wilman wanted the claimant to spend some time shadowing and getting to know the team and to be in the office for that purpose. She suggested that the claimant “may be able to book a room to see families there and write up case notes in-between the sessions – prior to returning to the office. Similarly if you visit a family at home at the end of the day you may update your notes from home afterwards. We need to look at regular time in the office and attending meetings as the MDT aspects are key.”

[77]Upon the issue of hot desking, Dr Whittaker informed the claimant that, “Jo [Wilman] has identified some drawer cupboard space and has identified items which she hopes will assist you – Dragon, noise cancelling headphones, mobile and laptop. I asked you to raise issues and requests with me in the first instance so I can negotiate with CDC.”

[78]She also recorded that the start date had been put back from 2 March to 30 March 2020. This was to facilitate the claimant completing her thesis. She said that Mrs Wilman “is keen that you attend for your first day of work on 30 March to go with the plan – to attend the MDT new team assessments that week – we suggest you attend those each morning and start your einduction and start organising yourself in work, adaptations etc in the afternoon.” She then mentioned the pending Access to Work report.

[79]It was suggested by Mr Keen to Dr Whittaker that even at this stage, Johanna Wilman wanted little contact with the claimant. Dr Whittaker acknowledged that difficulties presented themselves with the relationship between the claimant and Mrs Wilman in or around September 2020 (as we shall see). She denied that Mrs Wilman wanted nothing to do with the claimant but accepted that she had suggested that “concerns be raised by the claimant with me first.”

[80]Access to Work grant funding approval was given on 7 March 2020. Unhelpfully, the Access to Work documents are presented piecemeal within the bundle. Some of the relevant documents around the grant are at pages 1040 to 1048. Pages 1040 and 1041 are a letter addressed to Dr Whittaker. This confirms that the claimant was eligible for support by way of an Access 10.5 Reserved judgment with reasons – rule 61 14 March 2017 to Work grant. There is listed a number of items with which the claimant was to be provided. It is necessary to set out the items here:  Coping strategies.  Disability awareness training.  Coloured page overlay.  Dragon Professional v15.  Wireless Bluetooth noise cancelling headphone.  Grammarly.  HP laptop.  MindView v7.  One half day TexHelp training.  Onsite training, set up and support visit.  Philips SpeechAir Smart Voice Recorder 2.  Phonak Roger Focus Receiver for left ear.  Phonak Roger Focus Receiver for right ear.  Phonak Roger Select.  TextHelp Read and Write Gold.  Twin pack of table mics.  Two half days Dragon training

[81]Pages 1042 to 1048 is a letter from Access to Work to the claimant. This confirms her eligibility for support. It sets out the items identified in the paragraph above and the amount of the grant to fund them.

[82]The full Access to Work report appears in the bundle at pages 3918 to 3936. It was prepared following a visit by Access to Work at Kimberworth Place. This document was disclosed by the claimant on 27 January 2022. Internal pages 11 to 17 of the report (pages 3928 to 3936) list the products and supplier details. Internal pages 11 to 17 are within the hearing bundle also at pages 1055 to 1061. Internal pages 1 to 10 and 18 and 19 feature in the bundle only from pages 3918 (pursuant to the claimant’s late disclosure of the report): see also paragraph 90 below. These pages refer to dyslexia, dyspraxia, central auditory processing disorder, attention deficit disorder and anxiety disorder (at pages 3919 and 3920- internal pages 2 and 3) as well as dyslexia.

[83]The handwriting upon the extract from the reports at pages 1055 to 1061 is that of Johanna Wilman. There was no explanation from the respondents as to whether they had the full version of the Access to Work report (including those pages the bundle at 3918 to 3936 and produced by the claimant) and if not, why these were not requested or sought from her by them.

[84]The Access to Work report itself (at internal pages 1 to 10) refers to the claimant’s diagnosis of dyslexia and dyspraxia. It also confirms a diagnosis 10.5 Reserved judgment with reasons – rule 61 15 March 2017 of Central Auditory Processing Disorder from about four years ago. This is described as “a hearing problem where the brain is unable to process sounds in the normal way.” The report also says that, “Catherine believes she may suffer from Attention Deficit Disorder.” It goes on to say that, “Catherine explained that due to a negative past experience she has developed an anxiety disorder. Catherine can often worry about other people’s opinions of her and tends to expect the worst case scenario.”

[85]In addition to the recommendations for the equipment, Access to Work recommended that she be given an allocated desk.

[86]On 17 March 2020 Dr Whittaker emailed Johanna Wilman to inform her that she had placed the Access to Work report in her (Mrs Wilman’s) drawer. She says in paragraph 21 of her witness statement that she did this upon the basis that, “Rotherham [the second respondent] would need to manage the equipment and physical adaptations at Kimberworth Place because Rotherham manages the CDC.” She goes on to say that, “I sent an email to Miss Tyerman on 16 March (page 1075) to acknowledge that Access to Work had approved equipment. The letter asked Miss Tyerman to complete her declaration to enable the next steps as required. I put the report in Jo’s drawer which I confirmed to her also by email (page 1074). My understanding at this time, from speaking to Miss Tyerman, was that Miss Tyerman would take this forward with Access to Work and that Access to Work would order the equipment. Their letter stated that the applicant would be provided with the following items – which led me (I now know, wrongly) to understand that they would organise this, and the letter also stated that all funding had been agreed – once Miss Tyerman signed to release the claim form.”

[87]She goes on to say that, “My conversations with Miss Tyerman led me to believe that we had sufficient adjustments in place, and the Access to Work funded equipment would supplement these items. As I will come on to explain, at this point I mistakenly believed that Access to Work would deliver the equipment to Jo at the CDC. I later learned, when Miss Tyerman started work, that it didn’t work like this, but at the time I didn’t remember it being an action for me, and I gave Jo the list for her information.”

[88]With reference to the suggested adjustment of providing the claimant with an allocated workspace, in paragraph 26 of her witness statement Johanna Wilman says, “we could not provide the claimant with her own room. We have one large office for 50 plus staff, along with five clinic spaces. Other rooms are commissioned by other services within Kimberworth Place … the bookable rooms that are available are limited and you could not reasonably expect to block book a room. In addition, the admin staff helped the clinical staff to book rooms for meetings and other things but they could not really be expected to constantly source a room and book it for the claimant.”

[89]In paragraph 27 of her witness statement, Johanna Wilman says that she was concerned about the claimant’s health. It will be recalled that the claimant had said that she was ill which had delayed her work upon her thesis. She says, “I did wonder if she still wanted the post or was having second thoughts about working for the Child Development Centre (page 3667).” 10.5 Reserved judgment with reasons – rule 61 16 March 2017

[90]Mrs Wilman said that she had received the letter from Access to Work (addressed to Dr Whittaker) at page 1040 and 1041 and pages 1055 to 1061 (the internal pages 11 to 17 of the Access to Work report) from Dr Whittaker. The letter addressed to Dr Whittaker at pages 1040 and 1041 lists the equipment in respect of which the claimant was to receive a grant. (The documents letter at pages 1040 and 1041 is repeated in the bundle at pages 2470 to 2471). It seems that Mrs Wilman did not receive the internal pages 1 to 10 and 18 and 19. In her evidence given under cross-examination, Johanna Wilman said that Dr Whittaker had brought the original to her (and placed it in her drawer) which she then scanned over to her (presumably so that she (Dr Whittaker) had a copy). She said that she had it had been presented “in a clear plastic folder.” She accepted that she had no explanation for where the remainder of the report had ended up.

[91]We have to agree with Mr Keen’s submission that the communication between the respondents over the issue of the Access to Work report was “shambolic”. It is plain upon even a cursory examination that the whole report had not been received by Dr Whittaker or Johanna Wilman. The internal page numbering is very clear. It ought to have been plain to both of them that parts of the report were missing.

[92]By mid-March 2020, the Covid-19 pandemic was starting to loom large. On 16 March 2020, the Prime Minister advised against non-essential travel.

[93]On 18 March 2020 the claimant emailed Dr Whittaker (pages 1082 and 1083). She said that she was keen to start work. However, the pandemic had caused further problems with the completion of her thesis. She was also concerned about the welfare of her brother who was in a high-risk group for Covid-19.

[94]On 20 March 2020 Dr Whittaker replied (1080). She said that, naturally, the Covid-19 virus was a cause of anxiety for all. She assured the claimant that the respondents were following government guidance. About the induction plan for 30 and 31 March 2020, Dr Whittaker said that the claimant would “be shadowing staff where possible and in particular working with Lisa [Moss] to maximise a handover from her. You could do this from a physical (social) distance of 2 metres wherever possible.” She concluded that if the claimant felt that it would be safer for her and her family to delay her start date then the respondents would be sympathetic.

[95]On 23 March 2020, the Prime Minister announced the first national lockdown.

[96]The next day, 24 March 2020, Dr Whittaker and the claimant agreed a provisional start date of 14 April 2020. This was agreed in a telephone call. Dr Whittaker sent an email to the claimant the same day (page 1076) to record what was discussed. Johanna Wilman was copied in. The email records that Dr Whittaker was to follow up with HR upon an idea of the claimant commencing her contract but then going on unpaid leave.

[97]On 6 April 2020 Johanna Wilman emailed Dr Whittaker (page 1109). She said that, “As it stands at the moment there is nobody in from the CDC. I am on a rota attending Kimberworth Place two days as a senior management presence. We have admin in there but there would be nobody as yet to offer any kind of induction. Equipment is still out. Have we heard 10.5 Reserved judgment with reasons – rule 61 17 March 2017 from the workplace assessment about the equipment promised? I just feel at the moment it would not be wise or good for Catherine. We can’t show her round and there would be no induction. What are your HR recommending about new starters at this time. It just does not seem appropriate, sorry. In addition I do not think we are going to pursue the 0.4 band 8a. I am looking at other options for the money.” She concluded, “So sorry Sara to sound negative, we are just in very strange times.”

[98]On 8 April 2020, Dr Whittaker replied (page 1108). She agreed that times were difficult because of the pandemic. She mentioned that she was due to telephone the claimant the next day (7 April) about her starting after the Easter holidays. She identified an issue with the workplace laptop because it could not log on to the first respondent’s IT system (known as SYSTM1) but suggested proceeding with an online induction. She said that she would welcome the claimant having her handover with Lisa Moss and wondered about the prospect of the claimant telephoning families “to discuss need, support, risk etc generally at this time.” Johanna Wilman responded positively the same day about the prospect of the claimant liaising with Lisa Moss for training, albeit that recognised that Lisa Moss was about to finish. She said that the claimant could start “taking a look and contacting families”.

[99]On 7 April 2020 it was agreed that the claimant would start work on 21 April 2020. This was confirmed to Johanna Wilman by Dr Whittaker the same day (page 1105).

[100]Dr Whittaker recorded arrangements in an email of 7 April 2020 (page 1119). She recorded that she and the claimant had spoken on Zoom. The start date had been agreed for 21 April 2020. The claimant was to “chase Access to Work”. It was agreed that the claimant would attend the CDC for one day on either 21 April or 23 April to meet with Johanna Wilman for an induction. Otherwise, the induction was to be online. Mrs Wilman was copied in and agreed that she would be in the office both on 21 and 23 April and was happy to meet with the claimant. It was agreed, in the end, that she would attend on 23 April 2020 (page 1117). The claimant confirmed (in an interview of 8 June 2021 (pages 3072 to 3082) given to Lorna Byrne, an independent investigator in connection with a grievance which she had raised) that she was happy to use her personal equipment for training and induction tasks but not for her clinical work. She confirmed that she could do training and her induction from home on her laptop. It was planned that during the second week she would be in Kimberworth Place upon the Tuesday, Wednesday and Thursday shadowing team members and then working from home on the Friday (Page 3671).

[101]On 12 April 2020 the claimant emailed Dr Whittaker to ask if it was essential for the handover to be conducted face to face (page 11123). The claimant plainly continued to be anxious about the pandemic. She said that, “whilst I am willing to come into the office, I want to make sure that it is critical to the job.” She suggested speaking to “them using Zoom”: (by “them” we presume she means Johanna Wilman and Lisa Moss).

[102]About this, Dr Whittaker says in paragraph 26 of her witness statement that this was a matter for Johanna Wilman “as she was the CDC manager.” Dr Whittaker wrote on 20 April 2020 (page 1129) to the effect that, “Jo is the only member of staff in the office and she is keen to meet with you for the 10.5 Reserved judgment with reasons – rule 61 18 March 2017 handover – this would be managed through social distancing and should not affect your ability to care for anyone – does that make sense? Is that manageable for you?” The claimant replied on 20 April 2020 the effect that she was willing to go in “if that what seemed appropriate and safe.”

[103]At paragraph 25 of her witness statement, Dr Whittaker says, about the equipment, that the claimant “had equipment that she could bring, and programmes/resources she had used before which we could use/download, and we agree that this could be locked in the CDC office as needed.” She says in paragraph 27 of her witness statement that, “At this stage I thought that items had been ordered by Access to Work and were arriving. I also thought that the agreed adjustments – the equipment that Jo had found (headphones, Dictaphone, mobile and laptop from Lisa Moss in addition to the Rotherham computer in the office) along with the materials that Miss Tyerman had agreed and packed to bring with her would be sufficient as a starting point.”

[104]On 20 April 2020 Dr Whittaker wrote to the claimant to welcome her to her new role. It had been agreed that the claimant would go to the CDC on 21 April 2020. Dr Whittaker said that this would be good in order to “build the relationship with Jo.” We refer to page 1135.

[105]The claimant attended the CDC on 21 April 2020 and met with Jo Wilman. This was her first day at work. The claimant says in paragraph 43 of her witness statement that, “I did not have access to the office (you need a fob to gain entry, but I was not given one) so I could not enter or leave the building without a colleague. No induction had been organised and I was not properly introduced to my colleagues, even though there were seven people in that day. I was shown to a desk facing the wall by Jo who said it was designated to me. It was covered in storage items and did not have a chair so I could not use it. I commented on the desk not being free and not having a computer on it, but I was told that for now I could hot desk in the office and on the computers that were available. Jo then told me call IT to access the system and start calling clients. She then went back to work. I was not given a laptop as Lisa [Moss] was still using the laptop that was meant to be allocated to me. Lisa was not able to say whether the available laptop had the Dragon software on it.”

[106]She goes on to say in paragraph 44 that, “Later that day, I sent Sara and Jo confirmation of the ATW [Access to Work] funding (page 1162). However in a follow up email to Sara I wrote that while I had a positive day, the office environment had been challenging due to noise, which was more than I had expected (1131 and 1132). I did not want to complain outright that the day had in fact been a disaster and that I knew that it was going to be extremely difficult to carry out my role without the adjustments that I had been promised would be in place when I joined. To be honest, I was shocked at how bad my first day had been organised given the respondents had knowledge of my disabilities and it immediately started to trigger symptoms of panic and anxiety.” The claimant acknowledged in evidence given in cross examination that she had found a desk to use (albeit there was “stuff” upon it) and with a lockable cabinet next to the desk. The claimant’s evidence before us of the day being a disaster is at odds with what was said by her at the time. We accept there to have been challenges but it is 10.5 Reserved judgment with reasons – rule 61 19 March 2017 hyperbolic to refer to the day as a disaster in light of the contemporaneous email sent by the claimant.

[107]For her part, Jo Wilman says about the events of 21 April 2020 that she met with the claimant “to get her set up as a network user on IT, Systm1 and access to our drives where we store team and therapy services information. This is recorded in my diary for 21 April 2020 (page 3668).” We refer to paragraph 33 of her witness statement.

[108]In paragraph 34, she says that, “The claimant was not given a designated desk because we hot desk. As a manager I don’t have a designated desk. There was no clutter on the desk and every hot desk has a chair. We sat socially distant and I got her set up on the computer with her email and login. We didn’t have the laptop for which I apologised to the claimant; it was being returned from a colleague who had dyslexia and had left the Trust to work privately. She had not returned it yet. The claimant advised me that she had a laptop and support at home so not to worry”. The claimant acknowledged in cross examination that there were 15 desks for around 50 employees, with staff coming in and out all the time (pre-pandemic). In paragraph 36 she says that the claimant spent some time “with Lisa Moss and she explained about the caseload of which there were just 12 clients on the waiting list.”

[109]In paragraph 35 of her witness statement Johanna Wilman says that, “I had no prior experience of the Access to Work system and processes. There was confusion between TRFT and SHSC about who should order and purchase the equipment. There were also real issues with supplies as the world was in lockdown. Nobody could advise when deliveries would be reinstated.”

[110]On 24 April 2020 Sara Whittaker emailed Johanna Wilman (page 1163). This was in response to her email to Dr Whittaker of 22 April 2020 at pages 1163 and 1164. Johanna Wilman noted that the claimant had been working from home on 22 April 2020 (that being her second day at work). Mrs Wilman asked Dr Whittaker for an electronic copy of the Access to Work recommendations to make the ordering process simpler. From this we infer that Mrs Wilman had received the hard copy deposited in her desk drawer. Dr Whittaker replied (page 1163) to the effect that she only had the list of equipment and that she [Mrs Wilman] had the only copy. This was, of course, the copy that was placed in Mrs Wilman’s drawer by Dr Whittaker. Dr Whittaker said, “I’m seeking some advice as Catherine is unsure if she can effectively start working in the office without the adaptations, did you think like me that we should focus on ordering the software/laptop etc – not the training etc for now?”

[111]The claimant had in fact received an email from Access to Work on 21 April 2020 (pages 1166 and 1167). This was to confirm receipt of the claimant’s signed declaration that enabled her to gain access to the funding for the aids and equipment. The email from the Access to Work team confirmed that her employer may proceed to purchase the aids and appliances. The claimant sent the confirmation from Access to Work to Dr Whittaker and Mrs Wilman on 21 April 2020 (page 1165). 10.5 Reserved judgment with reasons – rule 61 20 March 2017

[112]Mrs Wilman accepted that she had responsibility for ordering the equipment in her email addressed to Dr Whittaker of 22 April 2020 (pages 1163 and 1164).

[113]There was some confusion before the Tribunal upon the issue of laptops. The Tribunal’s understanding of matters is that the initial idea was for the claimant to utilise Lisa Moss’ laptop after she (Ms Moss) left employment, but this turned out to be an unsuitable laptop as Dragon software was not installed upon it. As we have seen, one of the second respondent’s laptops had Dragon software upon it but it was being utilised by somebody else. At all events, it is not in dispute that the claimant picked up a configured laptop only in October 2020. Lisa Moss’ laptop was available from 29 April 2020 which would have enabled the claimant to at least access the second respondent’s systems albeit that it was not configured with all of the software that she needed.

[114]Dr Whittaker said that the claimant did not need her own fully configured laptop in any case for when she was shadowing Lisa Moss and undertaking her induction in the early days of her employment. She would be able to look at the patient’s records with Lisa Moss’ laptop. She didn’t need a fully configured laptop to undertake the work that she was doing from home at that stage. The Tribunal asked Dr Whittaker if the claimant would, during her induction phase, be undertaking the same work even if she had her own fully configured laptop. Dr Whittaker confirmed this to be the position.

[115]On 22 April 2020 the claimant worked from home and did some online training, reading guidance and policies. That evening, she emailed Mrs Wilman to ask for a clear plan of her work activities (page 1152 and 1160-1161). It appears to be the case that a timetable was sent through, as on that day (at 17:15) the claimant thanked Mrs Wilman for sending through the timetable and that she was to work from home for the remainder of the week to complete the tasks set out. This included creating a task list for her induction and for weeks two and three, to contact the second respondent about training, to liaise with IT and to contact Lisa Moss to arrange the handover of equipment.

[116]On the same day, the claimant emailed Dr Whittaker (page 1170). She said, “As I believe you are aware I have CPTSD which was discussed with occupational health. I have been managing this successfully before Covid19 removed the majority of my coping strategies and created more anxieties and uncertainties. I am struggling to manage this on a day to day basis and have had panic attacks at home. Going into the office is increasing my anxiety and I don’t feel safe. Whilst I am aware I may not be high risk personally, Covid-19 is still a risk, I would infect others as I cannot isolate from them. This is especially true given the number of people in the office, at times yesterday there were seven people. On the basis of the above I feel an appointment with occupational health would be useful.” She goes on to say that, “There are many reasons I believe being in the office is inappropriate. The lack of equipment, lack of adjustments, effectiveness etc. Regardless of these reasons this is exacerbating my PTSD symptoms which are already at a high level due to Covid-19. I feel for my well-being I wish to make a flexible working request to work at home for my full working week. I feel phone calls made from home, where I have access to my adjustments and feel safe would be more appropriate in the circumstances.” 10.5 Reserved judgment with reasons – rule 61 21 March 2017

[117]Dr Whittaker says, in paragraph 35 of her witness statement, that until the claimant’s email at page 1170 she “hadn’t appreciated that Miss Tyerman had CPTSD. Rebecca Haines had told me that Miss Tyerman was dyslexic but no more than that. Miss Tyerman also hadn’t mentioned or indicated to me any other conditions before now. Furthermore, it was later on, during Miss Tyerman’s sick leave, that she first mentioned to me that she had arranged to be assessed for ADHD and was later given a diagnosis.

[118]Dr Whittaker met with the claimant by Zoom on 22 April 2020. This had been arranged prior to the claimant’s email at page 1170 was sent. Dr Whittaker permitted her to work from home on 23 April 2020. The claimant accepted in cross examination that 22 April 2020 was the first time she had mentioned PTSD to Dr Whittaker.

[119]It appears that the message did not get through to Johanna Wilman who was expecting the claimant to be in work that day (23 April). She emailed the claimant on 23 April 2020 at 10:24 (page 3670). She said, “I was just wondering where you are, I was expecting you in Kimberworth today? Hope all is well”.

[120]Dr Whittaker spoke to the claimant on 23 April 2020. As we say, it was agreed that the claimant could work at home that day. She was also permitted to work from home on 24 April. However, Dr Whittaker emphasised the need for her to attend the CDC and “Jo’s rationale for wanting the induction to be face to face.” Dr Whittaker says in paragraph 36 of her witness statement that, “we also talked about CPTSD and Miss Tyerman shared that she thought she was managing with her normal coping strategies, acknowledging additional anxieties due to Covid.”

[121]Dr Whittaker followed up the conversation with an email also dated 23 April 2020 (pages 1181 and 1182). The claimant was directed to work in the office on Tuesday, Wednesday and Thursday of the following week. It was anticipated that she would spend most of her time in room G17 with one member of staff at a time. Dr Whittaker said, “I am aware that you would feel less anxious if you were able to work from home but Jo believes that your induction will be more productive if you are in the office. Jo wants you to meet with led staff to discuss and observe clinic and to discuss protocols, also building up social relationships with colleagues.”

[122]The claimant replied on 23 April 2020 (pages 1179 and 1180). She again protested that she did not have any adjustments in the office and the impacts of her disabilities “make me ineffective and distressed”. She said that, “All the conversations I could have face to face I could have over Zoom – similar to the consultants.” (By this, the claimant meant to refer to the fact that the consultants were consulting with families over Zoom. It was anticipated that the claimant would physically shadow the consultants who were in the clinic, keeping socially distant).

[123]Dr Whittaker says in paragraph 37 of her witness statement that the claimant’s role had not changed notwithstanding that the first respondent was now not considering replacing Lisa Moss or recruiting a band 8a psychologist at all. She acknowledged that “her experience in the role would likely have been different, because she wouldn’t have been working alongside a band 8a, but she wouldn’t have had to take on any of those 8a responsibilities into her role.” 10.5 Reserved judgment with reasons – rule 61 22 March 2017

[124]Dr Whittaker and Mrs Wilman discussed the matter further on 23 April 2020. Mrs Wilman maintained her view that “it was appropriate to have some introductory meetings face to face to get to know people and also to shadow sessions in the short term.” Mrs Wilman emailed the claimant to this effect on 23 April 2020 (pages 1171 and 1172). She acknowledged the claimant’s nervousness around Covid and assured the claimant that, “we will maintain social distancing and I have blocked out room G17 which is a large consultancy room on the downstairs level.” She told the claimant that, “When Lisa [Moss] leaves you can have her laptop until we have sorted out your equipment. This will enable you to work on SYSTM1 at home. I have made great progress today and have the forms I need to get it approved from my budget. I realise the equipment is being funded but if I don’t get the forms completed the monies just go into the Trust’s budget leaving the CDC with a big deficit. We have provisionally logged the equipment with supplies but need the go ahead.” At page 1176, we see that Mrs Wilman emailed Dr Whittaker the same day to the effect that the induction timetable for the following week had been planned using ‘”safe social distancing” and that the claimant was able to access SYSTM1 with which she could be “looking at the client groups.”

[125]It appears from the purchase orders at pages 1647 and 1648 that at least some of the equipment was ordered on 20 May 2020. The Phonak equipment was ordered along with the table mics. (It is, perhaps, unfortunate that the respondents did not clearly set out anywhere a summary of the ordering history for the equipment. It should not be for the Tribunal to try to piece matters together themselves).

[126]In light of what had been said by the claimant on 23 April 2020, Dr Whittaker commissioned a further occupational health assessment. She emailed Georgina Hanson, the first respondent’s recruitment team leader to this effect (page 1196).

[127]On 24 April 2020, the claimant commenced a period of sick leave absence. The claimant informed Dr Whittaker that she had been certified as unfit for work for a period of two weeks. Dr Whittaker recorded this in her email to the claimant of 24 April 2020 (page 1198). The claimant did not in fact return to work until 18 August 2020. Johanna Wilman had no contact with the claimant over the period of her sickness absence. She said in evidence given under cross examination that shew was unaware of the claimant’s PTSD at this time. We accept her account, there being no evidence to the contrary.

[128]On 24 April 2020 Dr Whittaker emailed Johanna Wilman (page 1163). She told her that the claimant had been advised by her GP to take two weeks’ sick leave. Dr Whittaker said, “I have explained that although her reaction to Covid and starting work was not anticipated, it may be wise to look at starting an unpaid period of leave until we have the adaptations in place, know more about the future Covid work arrangements and she can return to therapy – first date for her EMDR is on 4 May [2020].” Dr Whittaker said that she was going to check with her HR team about her approach to the matter. She said, “I’ve also requested a meeting to ensure before Catherine returns to work we consider whether she wants this post and if so are the adaptations going to enable her to have the presence in the clinic and office that you require.” 10.5 Reserved judgment with reasons – rule 61 23 March 2017

[129]Unsurprisingly, Georgina Hanson gave firm advice to the effect that the claimant should not be placed on unpaid leave pending the adjustments. She referred to a discussion held on Friday 23 April 2020 in which she had strongly advised Dr Whittaker to accommodate the claimant’s request to work from home, given that she was able to access at her home the relevant adaptations required to complete her role (pending the ordering of the equipment as recommended by Access to Work). Georgina Harrison said that given that the claimant’s absence “is likely to be partly work-related, the Trust’s promoting attendance and managing sickness absence policy requires contact to be made to the individual as soon as possible to aim to discuss the issues further to facilitate a return to work as soon as possible.”

[130]In paragraph 51 of her witness statement, the claimant refers to having become increasingly anxious towards the end of April 2020, which prompted her partner to contact her GP via the online portal. It was this contact that had led to her being signed off as unfit to work. She says that she told her doctor that she was “having flashbacks due to unfair treatment in my previous employment, and I was fearful about going into work without the adjustments I needed, that I would be very ill again.” The claimant reported being very distressed, shaking, shouting, panicking and crying. Dr Whittaker acknowledged the claimant’s distress at this time in paragraph 39 of her witness statement.

[131]The claimant confirmed, in evidence given under cross-examination, that she had not suffered any financial detriment, as she was paid her sick pay entitlement

[132]The claimant raised a concern about the abandonment of the plan to recruit another band 8a psychologist. The claimant considered that “from a clinical and legal perspective” this was inadvisable. She referred in an email of 24 April 2020 addressed to Dr Whittaker to the guidance from the National Institute of Clinical Excellence (“NICE”) which states that, “to diagnose ASD you need a team consisting of paediatricians/paediatric neurologists, speech and language therapists and clinical psychologists/educational psychologists.” We refer to pages 1214 and 1215.

[133]The report confirming the diagnosis of ADHD is in the bundle commencing at page 1216. The report was prepared by Dr Hamid Alhaj, consultant psychiatrist. He opined that, “Catherine presents with several ADHD symptoms” and that these were of a long term nature and of moderate severity. He opined that “there was no evidence of a mental illness that would provide an alternative explanation to the ADHD longstanding features.” There is mention in the report of her having been diagnosed with dyslexia at university, depression from around 2009/2010 and a possible diagnosis of complex PTSD which was suggested in early 2019. The clinical assessment was undertaken on 25 April 2020 by Zoom. On 6 May 2020, the claimant notified Dr Whittaker of the diagnosis (pages 1241 and 1242).

[134]On 1 May 2020, Dr Whittaker prepared a paper which she sent to Linda Wilkinson the same day. The paper is headed “Recommendations for clinical psychologists working remotely during the Covid pandemic.” This is at pages 1238 and 1239. In essence, Dr Whittaker recommended that clinical psychologists should be permitted to work from home during the 10.5 Reserved judgment with reasons – rule 61 24 March 2017 pandemic. She said in evidence given under cross-examination that not all psychological work had to be done on site but working on site was necessary from time to time as part of a multi-disciplinary team. This paper was not sent to Johanna Wilman.

[135]On 7 May 2020 Georgina Hanson furnished further advice about the claimant. She said that effort should be made to ascertain whether the claimant should be placed on sickness absence or, if she was fit pending adjustments being put in place, then she should be placed on paid authorised absence until the adjustments were available. She also encouraged Dr Whittaker to have discussions with the second respondent to make plain the obligations owed by the first respondent to make reasonable adjustments (including working from home). Her email to this effect is at page 1274.

[136]The claimant was certified as unfit for work for a period of a further two weeks after 10 May 2020.

[137]Dr Whittaker advised Georgina Hanson on 11 May 2020 that the claimant had said that she would not speak to her until she has an EMDR appointment on 18 May. She was sceptical as to the utility of the adaptations given that she was off with anxiety and a re-triggering of PTSD. Her email is at page 1281.

[138]On 14 May 2020, the claimant informed Dr Whittaker that her mood was improving, she may be able to start engaging but that email correspondence would be easier (page 1282). In reply, Dr Whittaker thanked the claimant for the information sent from her GP and about the ADHD diagnosis made by the consultant psychiatrist (pages 1287 and 1288). The claimant was informed that she was going to be on sick leave and receive sick pay accordingly. The claimant was asked when she thought she may be able to return to work following the end of the fit note. Dr Whittaker said that, “It would be useful to consider the plans that I rang to discuss with you on the day when you told me that you had been signed off sick. At that time, Jo had agreed to you using your adapted equipment to work from home, and you being one to one and a half days in the CDC each week – primarily in G19 downstairs, to observe two to three clinic sessions, undertaken by phone/video, and partake in induction with staff/observing CDC processes. We did not consider these adjustments any further at that time as the GP had signed you off work.”

[139]The claimant was informed in the same communication that Lisa Moss had handed in her laptop and phone as anticipated “which could support your working from home further”. The claimant was informed that the equipment recommended by Access to Work was on order but had been delayed by the second respondent’s finance protocols.

[140]Sara Whittaker’s evidence is that following the email of 14 May 2020 she and Jo Wilman spoke. Dr Whittaker was assured that the equipment had been ordered by the second respondent, except for the colour overlays and training. This was confirmed to the claimant on 20 May 2020 (page 1307). She was also told that training may be arranged upon her return to work. The claimant replied the same day (pages 1306 and 1307). This struck a positive tone. She confirmed the number of colour overlays she required 10.5 Reserved judgment with reasons – rule 61 25 March 2017 and understood about the difficulties in arranging training due to Covid and the that she was not yet back in work.

[141]On 14 May 2020 Jai Lawes emailed Dr Whittaker (pages 1290 and 1291). Mr Lawes is the commissioning manager for the second respondent. He was becoming concerned about progress with the claimant’s induction. He said that until it had been completed, “we are unable to let Catherine see our patients. Do you have anyone else who can cover the service in the interim? Otherwise we will have to pause the funding for this post until the induction has been completed.”

[142]Dr Whittaker informed Georgina Hanson of this the same day (pages 1289 and 1290). She said that “Jai is discussing not paying for the contract – which I anticipated.” She said that she was under the impression that the second respondent had not yet ordered the adaptations and equipment. (As we have just seen, this was clarified within several days and it was confirmed on 20 May 2020 that this had been done).

[143]On 21 May 2020 the claimant emailed Dr Whittaker (pages 1301 and 1302). She confirmed that her GP had signed her off as unfit to work for a further two weeks. She said that, “I feel it would be detrimental for me to begin the role without the adjustments in place.” She asked what the first respondent’s “criteria or policy, if any, is for refusing reasonable adjustments” and for an organisation structure for the service. She also mentioned that, “to facilitate my eventual return to work, I am currently developing a disability passport which we can use in future communications, which I hope will be helpful to all parties. I am also wondering whether, prior to my return to work, further assessments for adjustments with regards to my PTSD/anxiety and ADHD/ADD would be beneficial.” She referred to previous experiences in other employments which left her feeling vulnerable both to discrimination and criticism.

[144]Dr Whittaker observed in paragraph 50 of her witness statement that the tone of the email of 21 May 2020 was “different” to that of the emails the previous day. She replied to the claimant’s email on 5 June 2020 (pages 1367/1368 and 1401-1403). She proposed setting up an informal long term sickness absence meeting for 17 June 2020 using Microsoft Teams.

[145]This meeting went ahead. The minutes of it are at pages 1518 to 1519: see paragraph 158.

[146]Before turning to that meeting in detail, it should be observed that this was in fact the second long term sickness absence meeting, as one had been held on 17 May 2020. The minutes of that meeting are at pages 1296 to 1297.

[147]At the meeting of 17 May 2020, the claimant explained that she was feeling better and “feels as though her depression has lifted however, CT [the claimant] is now experiencing symptoms of anxiety and a racing heart but not many anxious thoughts.” The claimant asked for clarity around the adjustments and job role. She felt there was a lack of clarity around the role compared to what she thought she was going to be doing. The minutes record Dr Whittaker confirming that certain items had arrived, those being the Dictaphone, noise cancelling headphones and overlays. (This particular aspect of the record of the meeting of 17 May 2020 is difficult to understand 10.5 Reserved judgment with reasons – rule 61 26 March 2017 given what we have just said about the equipment having been ordered on 20 May 2020 and the query raised of the claimant that day about the overlays. It has to be said, again, that the chronology is at times difficult to follow).

[148]As the claimant explained when she gave evidence before the Tribunal, the absence of a band 8a psychologist is what primarily lay behind the uncertainty which she felt about her job role. This was compounded by the lack of certainty about the first respondent’s plans to replace Lisa Moss. We agree with the claimant that the situation appeared fluid. As we have already seen, Dr Whittaker indeed asked for the claimant’s thoughts about the future provision of the psychologically service in the light of NICE guidelines: see paragraph 132 above.

[149]In her email of 5 June 2020 at pages 1367 to 1369 (also at pages 1401- 1403), Dr Whittaker said that she had asked Steve Jones, a member of the paediatric team if he was able provide “a separate supervision space” for the claimant on a fortnightly basis. She said that Mr Jones had agreed to do this. The claimant had some reservations about this. As she says in paragraph 63 of her witness statement, “Steve was not based within the CDC, and he had never worked there.”

[150]In the lead up to the meeting with the claimant on 17 June 2020, Dr Whittaker sought to ascertain from Johanna Wilman whether the equipment had arrived. She emailed her to this effect on 5 June 2020 (page 1335).

[151]For her part, Johanna Wilman had become “frustrated by the lack of progress” as she says in paragraph 42 of her witness statement. She sent an email on 27 May 2020 to Julia Brown, the second respondent’s IT technical co-ordinator. This is at page 1314. Julia Brown had informed her that they were unable to purchase the recommended laptop from the high street electrical retailer recommended by Access to Work. Mrs Wilman said to Julia Brown in the email at page 1314 that this, “is a really difficult case and the lady in question is being very picky and won’t work until she has everything in place for her disability. I don’t know what is special about this laptop or if yours is compatible with all the other staff that has been recommended.” When asked about this in evidence given under crossexamination, Mrs Wilman denied being disparaging of the claimant.

[152]On 8 June 2020 Dr Whittaker (after receiving guidance from Sahra Garuf, HR advisor with whom she was liaising about the claimant’s case) sent an email to the claimant (pages 1422 and 1423). This was sent ahead of the long term sickness absence meeting. She said that Mrs Wilman had told her that “the items of ordered equipment are being delivered to CDC but there remains a delay on the new laptop as the one that has been recommended does not meet [the second respondent’s] usual guidance. This is being looked into and we await a decision.”

[153]She then turned to the question of roles and responsibilities. She quoted a paragraph sent by Jo Wilman to her (at 13:18 that day) in the following terms: “In terms of roles and responsibilities, as was discussed with Catherine it is difficult to determine. We are in new territory having a band 6 clinical 10.5 Reserved judgment with reasons – rule 61 27 March 2017 psychologist. We need to complete her induction and determine her strength and weaknesses with regards to clinical knowledge of our client group. Other band 7 therapists have a great deal of clinical responsibility being responsible for assessment and diagnoses. When Catherine is qualified we would expect her to manage the psychology waiting list and to work within the MDT assessment team as a gatekeeper for psychology services, determining who would benefit from intervention and support.”

[154]The claimant replied on 12 June 2020 (pages 1420 to 1422). She raised a number of issues about the organisation chart with which she had been provided. She complained that her role “appears undefined, untenable and not the job role I applied for.” She went on to say that, “I applied for the job described in the advert and accepted it as a band 7 moving to 8a when I had completed the appropriate training. I’m not happy for it to be re-defined at this point.” She says that she “accepted this role with the proviso that there was an 8a clinical psychologist in the team who would be able to support my development and put their name to my work within that timeframe.”

[155]She was concerned also about compliance with NICE guidelines. She said that she had concerns “about a band 7 therapist being responsible for a diagnosis. If this is an accurate portrayal of the service then the service is not in line with NICE guidelines and is thus dangerous and unjustifiable.” While acknowledging the impact of the pandemic, the claimant maintained that “on employing me to this role there was a need to define a pathway for me to be trained and achieve the 8a role which was offered to me.” She complained that the respondents were unable to demonstrate a pathway to achieve her desired banding. She then requested adjustments for the forthcoming meeting. She also asked to be paid her full wages until all the adjustments had been fully assessed and implemented. The claimant’s email of 12 June 2020 was copied to Sarah Garuf by Dr Whittaker. Sarah Garuf advised that in order to reply to the claimant’s issue around the organisation she ought to liaise with her team and consider (amongst other things) the job advertisement and job description. Dr Whittaker says, somewhat unhelpfully, in paragraph 56 of her witness statement that “the issues raised in the email of 12 June 2020 were responded to in emails with HR and further meetings.” It is no part of the Tribunal’s task to try to hunt down where, if at all, this information was provided to the claimant. In the same paragraph she said that the claimant’s comments around the tenability of the role led her to question whether the claimant wanted to remain in post.

[156]Johanna Wilman was at this time making further efforts to try to procure the laptop. She emailed Julia Brown on 10 June 2020. She said, “I am being leaned on from Sheffield who want the individual back in work but she is refusing until her equipment is in place.” We refer to page 2614.

[157]On 12 June 2020 David Wilde, IT special project team leader, informed Julia Brown (who in turn informed Johanna Wilman) that the standard 5300 laptop would meet the required specification (page 3685). The issue with the Access to Work recommendation was that their recommended laptop to be bought from a high street electrical retailer was not fitted with a smart card reader for SYSTM1. 10.5 Reserved judgment with reasons – rule 61 28 March 2017

[158]On 17 June 2020 Johanna Wilman informed Dr Whittaker that the speech Dictaphone, noise cancelling headphones and the blue overlays had arrived (page 1502). Two sets of training had been organised but this had to be deferred pending the claimant’s return to work. Mrs Wilman said that “nothing else has arrived as yet. It is a difficult time to be supporting equipment sorry.” In another email of the same day (pages 1506 and 1507) Mrs Wilman confirmed that the second respondent had decided not to recruit an 8a role and “instead we have used the money to fund other posts within the CDC”.

[159]The minutes of the informal long term sickness absence meeting of 17 June 2020 are at pages 1518 and 1519. The notes record that claimant “explained that she is feeling better now and she feels as though her depression has lifted. However she is now experiencing symptoms of anxiety and a racing heart but not many anxious thoughts.” She was undergoing cognitive behavioural therapy. She confirmed that her GP had signed her off as unfit for work until 3 July 2020. It was agreed to refer the claimant to occupational health.

[160]Dr Whittaker said at the meeting that it would be helpful for the claimant to send her a list of adjustments and adaptations which she requires. The claimant said that she was working on a disability passport. Dr Whittaker said that this would be useful so that “they could tick off and address each of the adaptations on the list.” The claimant was informed of the items that had already arrived and there was then discussion about the problems with the laptop and in particular that the one recommended by Access to Work did not have a slot for the smart card. It was agreed that once a laptop had been sourced and purchased the second respondent would then put the Dragon software on to it. The training position was also confirmed.

[161]The claimant again raised concerns about lack of clarity in her role. Dr Whittaker told her that “the job is still the same … however there is going to be a mix of assessment role, the whole team assessment and the offer of psychological therapy. There will be a mix of being in the clinic, school visits and home visits which may be the specialist areas that they may need to think about in relation to adaptations.”

[162]Johanna Wilman’s confirmation in the email of 17 June 2020 (at page 1506) that the second respondent was not wishing to recruit another band 8a psychologist simply confirmed what Dr Whittaker already knew. The day before, on 16 June 2020 she emailed Sahra Garuf and Linda Wilkinson (page 1445). She said that “The CDC service have indicated with the difficulties that SHSC have had with recruiting to the psychology posts – people not staying and delaying Catherine starting, that they are wishing not to recruit to the 8a post. Formal notice has not been served on the contract, but this stance will not have been assisted in the current situation. When Lisa Moss band 8a was in the team she was able to offer a handover to Catherine.” The same day (16 June 2020) Dr Whittaker asked Mrs Wilkinson and HR support whether they (the first respondent) needed to ascertain if the claimant still wanted the post (page 1498).

[163]The next day, 17 June 2020, Dr Whittaker emailed Johanna Wilman (pages 1505 and 1506). She informed her that Mr Lawes would be required to serve formal notice to bring the contract providing for the provision of a band 10.5 Reserved judgment with reasons – rule 61 29 March 2017 8a psychologist to an end. The overarching service level agreement would then need to be changed. Dr Whittaker suggested that the notice take effect from 1 May 2020 which was a couple of days after Lisa Moss left the post. She mentioned that there was a contractual notice period. She said that she had asked “her contracting lead to update Jai [Lawes] on this matter.” She also mentioned that the claimant had wanted to join a team with an 8a post-holder to assist with her learning and “to provide psychological governance and leadership.” Mrs Wilman said in reply (page 1505) that the service level agreement would be amended.

[164]The claimant and Dr Whittaker met on Teams on 30 June 2020. The minutes are at page 1549. The claimant was still working upon her disability passport. She mentioned that she was finalising her thesis. The claimant again raised concerns that her role had changed “as there is no 8a support due to staff leaving, re-configuration and changes/financial cuts. Also, there is no scope for 8a progression.” She was concerned about being a sole practitioner. She was informed that there would be a review of the role “every six to 14 weeks.” She also mentioned that she had previous experience of discrimination where there had been a failure to make reasonable adjustments. She mentioned that “This is in a court case presently”. She said that she “hopes nothing goes wrong with [the respondents], she is worried that something may go wrong which was triggering her concerns.” When asked about this in cross-examination, Dr Whittaker said that she wondered whether Covid had reduced the claimant’s “tolerance for triggers.”

[165]On 8 July 2020, the claimant emailed Dr Whittaker (pages 1560 and 1561). She said that, “The court case I am taking actually covers ongoing discrimination (this has not been confirmed by the court) from applying to the course to the present day – it’s still happening and in fact has worsened with the court case as the university (the respondent to that claim) now deny their duty of care to me and deny my disability.” She said that her experience (with the respondent to the other case to which she refers) was “the trigger to me initially developing anxiety, depression and PTSD symptoms over time”.

[166]In another email also sent on 8 July 2020 (page 1567) the claimant again highlighted her concerns around her job role. She says that her enthusiasm for the role was “on the basis of 8a support in the job and effective progression to 8a. As the 8a money has been spent on re-banding other members of the team … this appears to be very different. So while I am not against a resolution I can see many potential problems with this.” She said that she was wondering if Dr Whittaker has “concerns about the resolvability of the concerns I have raised in regards to job role and reasonable adjustments pathway.” She mentioned that she had been reflecting on the possibility of an alternative clinical psychology role.

[167]A further meeting took place between Dr Whittaker and the claimant on 9 July 2020. This is recorded at pages 1563 and 1564. It was noted that the claimant’s GP had recommended her sick note be extended until 3 August 2020. All of the adaptations had been ordered. The training had also been ordered but was awaiting the claimant’s return to work. 10.5 Reserved judgment with reasons – rule 61 30 March 2017 Discussion then turned to other adaptations to be made in addition to the equipment recommended by Access to Work. These were:  A cupboard to keep adaptations in the office.  A reserved identified desk for the claimant’s use when in the office.  Time to write up her notes in the clinic room.  Time to work from home on reports.  The opportunity for remote working during the pandemic.

[168]Dr Whittaker recorded in the minutes that she did not think that the money for the 8a post had been used to re-band others “but has perhaps been used to employ another worker/someone on more hours.” She noted that the claimant was wondering if she still wanted the job.

[169]A number of actions were agreed including for the claimant to complete the disability passport. The claimant was content for all of the medical reports which had been sent in by her to date to be forwarded on to occupational health.

[170]The next day, the claimant sent to Dr Whittaker a copy of Dr Alhaj’s report to which we referred earlier in paragraph 133. The email is at page 1570.

[171]On 5 July 2020, the claimant wrote to Sahra Garuf (page 1544). She complained that “the pathway [for managing reasonable adjustments] is unclear and appears to be viewed as a ‘negotiation’”. She gives as an example of a negotiation that she requested the flexibility to be able to work from home when possible which was met with the response that this should be allowed only when needed to write reports. The claimant said that her need for a quiet area extended to all writing tasks and not simply for the report preparation.

[172]On 13 July 2020 Dr Whittaker updated the record of the meetings that had been held on 30 June and 9 July. This is at pages 3660 and 3661. It was flagged up that should the claimant not return to the CDC then the first respondent did not have any job options for working with children. She mentioned openings in other clinics within South Yorkshire.

[173]On 15 July 2020 the claimant emailed Sara Whittaker and Sahra Garuf with her disability passport. The email is at page 1616. Also attached was a “reasonable adjustments request document “ (which was to be read with the disability passport) commencing at page 1620. At pages 1622 to 1624, she makes a number of suggestions of reasonable adjustments for her disabilities. These are focussed upon her work environment, working practices, management and administration, communication and technology. She repeated her request for her own room or office which was an adjustment to alleviate the disadvantage caused by distractions and avoiding or minimising PTSD triggers. She also said that the provision of her own office would allow for the storage of her extra equipment and the need to move it around. She wanted a second monitor and screen. She sought increased flexibility for working from home and altered work patterns to alleviate fatigue and prevent sickness, her best time to work being between 11am and 2pm and then 4pm to 6pm. She said that “permission should not be needed to access agreed adjustments.” She sought the 10.5 Reserved judgment with reasons – rule 61 31 March 2017 routine provision of frequent breaks. She also asked for dedicated time for administrative support including support with organisation, booking appointments and proof reading. She asked for verbal as well as written instructions and (in order to facilitate reading) the use of Arial font size 12 and 1.5 line spacing in documents and emails and the provision of agendas prior to and minutes after meetings. Again, she sought the Access to Work technology which had been recommended together with a second monitor and all requisite cables and accessories such as a laptop stand and mouse.

[174]The disability passport itself is at pages 1626 and 1634. It was supplemented by the list of adjustments at pages 1641 to 1644. Although not identical to the list of recommended reasonable adjustments in the document commencing at page 1620, it is in a similar vein and a little more detailed. The claimant mentioned at page 1642 that she works best between 11am and 2pm and 4pm and 6pm. She said that she needed space to complete all of her work tasks and she set out her preferred methods of communication. She requested that there be a tolerance of disability-related sickness absence. (In the same email of 15 July 2020 (page 1616) a further copy of the report from Katherine D’Arcy Brown referred to in paragraphs 48 and 49 was emailed to Dr Whittaker and Sahra Garuf).

[175]Some of the equipment that had been ordered by the second respondent had not arrived at this stage. Ian Parker, procurement officer, chased the order of 20 May 2020 with the suppliers (pages 1660 to 1663) on 15 July 2020. This was the order of the Phonak equipment and table mics. (It appears from the email of 18 August 2020 from Dr Whittaker to Mrs Wilman that this equipment was mislaid (page 1739)). In the same email, she asked if Mrs Wilman had found her copy of the Access to Work report. The Phonak equipment was re-ordered and arrived, it seems, on or around 19 August 2020 by reference to the tracker at page 1749. The one of 12 August 2020 at page 1723 has them as still missing.

[176]On 20 July 2020, Johanna Wilman was able to confirm the arrival of some of the equipment. In her email to Dr Whittaker of that date (pages 1654 and 1655) she confirmed that the following equipment had arrived: coloured blue overlays; wireless Bluetooth noise cancelling headphones; MindView version 7; Philips Speech Air Smart Voice Recorder; TextHelp Read and Write Gold; and the link for the Dragon Professional Version 15. She again confirmed that the two technical training days had been arranged and could be finalised once the claimant returned to work. What appeared to be missing was the table microphones, the Phonak Roger Focus Receivers for the left and right ears and the Phonak Roger (microphone).

[177]In paragraph 45 of her witness statement, Johanna Wilman says that the missing equipment had to be re-ordered on 20 July 2020. She says that a new laptop had been ordered on 29 June 2020. The MindView link was available from 20 July 2020.

[178]On 21 July 2020 Dr Whittaker forwarded to Johanna Wilman the emails and minutes of communications between her and the claimant and all of the reports which the claimant had forwarded to her. The claimant had given permission for this information to be sent (pages 1667 and 1668). 10.5 Reserved judgment with reasons – rule 61 32 March 2017

[179]On 23 July 2020 the claimant emailed Dr Whittaker. The email is at page 1719. She informed that she has “been quite suicidal again recently due to the court case.”

[180]On 27 July 2020 the claimant had another appointment with occupational health. Julie Daughtrey, clinical operations manager, of PAM OH Solutions interviewed the claimant.

[181]In her report (pages 1703-1705) Julie Daughtrey noted that the claimant was undergoing therapy for PTSD. She also noted the diagnosis of ADHD in April 2020. She recorded her underlying medical conditions and their impact upon her. There was a description of the claimant’s dyslexia, dyspraxia, ADHD, depression and anxiety and PTSD.

[182]Julie Daughtrey opined that the claimant was hoping to return to work within two to three weeks. She considered this to be achievable. (We observe in passing here that the claimant was issued with a sick note to 31 August 2020 by her GP on 27 July 2020 (page 1707). On 3 August 2020 a fresh sick note was issued to 17 August 2020 (page 1712)).

[183]Julie Daughtrey recommended a phased return to work. She said that the claimant would benefit from the facility to work from home, “especially to do reports which require more intense concentration.” She noted that the technological support was in place. She said that, “If at all feasible I would advise that she avoids any hot desking and that a quieter room be found for her.” She also recommended that the workstation be near to storage facilities for her equipment. Additional time should be allowed for the claimant to produce written reports and to absorb new information and there ought to be rest breaks from intensive caseloads. She therefore recommended that her work structure take account of this and that a proofreader be provided. She recommended that management consider undertaking a wellness recovery action plan (“WRAP”) as practical support.

[184]Dr Whittaker went on annual leave before the occupational health report was prepared. She returned on 10 August 2020. In paragraph 77 of her witness statement, she says that she did not look at the report until 13 August 2020.

[185]She in fact met the claimant on 11 August 2020. It appears that Dr Whittaker thought that the occupational health report had not arrived by that date as she assumed that it would be sent to her by email. She then learned that she had to log on to the occupational health online system to seek the report. She did this two days after her meeting with the claimant on 11 August.

[186]The management meeting note of 11 August 2020 at page 1714. It was recorded that the claimant planned to return to work on 17 August 2020. The claimant planned to work from home if the adjustments were not in place. The Monday would of course be a non-working day for the claimant. It was therefore envisaged that she would work two hours on Tuesday 18 August (between 1.30 and 2.30pm and then 3pm and 4pm). She was to maintain the same work pattern for the rest of that week. It was noted that the claimant was scheduled to be on annual leave between 28 August and 7 September 2020. 10.5 Reserved judgment with reasons – rule 61 33 March 2017

[187]Johanna Wilman was in fact away on annual leave coinciding with the claimant’s return to work. She (Mrs Wilman) was to return from annual leave on 1 September 2020. The plan was for the claimant’s work on her return to be within the first respondent’s premises and at home. It was then hoped that the claimant could return to the CDC after Mrs Wilman’s return from annual leave on 7 September.

[188]On 12 August 2020, Sahra Garuf compiled a document known as an “adjustments tracker”. This is at page 1723. It went through several iterations as follows:  19 August 2020 – page 1749.  20 August 2020 – page 1758.  11 September 2020 – page 1870.  19 September 2020 – page 1921.  2 October 2020 – page 1992.  3 December 2020 – page 2412.

[189]On 13 August 2020, the claimant and Dr Whittaker had a further meeting which is recorded at pages 1802 to 1805. Dr Whittaker recalls that she had asked Mr Jones to set up supervision with the claimant on a fortnightly basis. A phased return to work plan was discussed. The plan for the first week was to be as set out above in paragraph 186. Then the claimant was to work four hours a day over three days during week commencing 25 August 2020. Following her return from annual leave on 8 September the proposal was for her to work 50% of her contracted hours during the first week, 75% during the second week following her return and then work 100% of her contracted hours from 28 September 2020.

[190]The claimant mentioned that she found Sara Garuf’s tracker hard to read. There is some justification in the claimant’s observation. While doubtless the trackers were prepared with the best of intentions, they are difficult to follow.

[191]Page 1804 sets out the adjustments that had been undertaken to date. It was noted that a separate room had been booked for the claimant’s use from September to the end of December 2020.

[192]Dr Whittaker met with the claimant again on 27 August 2020 (pages 3300 and 3301). It was noted that the claimant was “getting used to working” pursuant to the phased return to work arrangements. It was observed that it was for the claimant to arrange the mandatory training. The claimant said that she was willing to be flexible and attend Kimberworth Place after her return from her annual leave.

[193]On 2 September 2020 Johanna Wilman and Sara Whittaker met on Microsoft Teams (page 1773). It was proposed that there be a “gentle return to the CDC” for the claimant. The plan for her phased return to work was discussed. A two-drawer cabinet and a wall facing desk had been identified for the claimant’s use. Dr Whittaker had booked a room (known as G10) for the claimant to be used as a single office space. It was agreed that she was to work two days a week from home and two days a week at the CDC. 10.5 Reserved judgment with reasons – rule 61 34 March 2017

[194]On 3 September 2020 Sara Whittaker emailed the claimant (page 1774). She confirmed that the laptop was ready for collection. The same day, Dr Whittaker emailed the claimant recording the several conversations which had taken place over August (pages 1801 to 1804).

[195]On 4 September 2020 the claimant emailed Dr Whittaker (pages 1775 and 1776). She said that she was “uncomfortable with picking up my IT and the set up being at IT and not in my office. This also means all the other aspects cannot be set up ie microphones and second screen etc.” She then said, “I’m very concerned about Jo [Wilman’s] attitude to me, my health and my adjustments. I am concerned I cannot have a positive working relationship with her due to her lack of trust in me and my abilities, some of her emails, the lack of information she has provided me about the role, her lack of flexibility when working with a professional as all decisions appear to be for Jo’s convenience not my well being or requirements to do the job, and importantly the apparent lack of understanding of my adjustments she has presented as further demonstrated by planning my first day in the office following long term sickness to be over the suggested time frame and where I have not been provided a break, even though this has already been raised as an issue. In truth I do not feel she wants me to be there or to have psychology within her team due to the conflict with psychology she has told me about.”

[196]Dr Whittaker confessed to being unsettled by the claimant’s response (see her email to Sahra Garuf of 4 September 2020 at page 1795). Dr Whittaker replied to the claimant to the effect that she and Mrs Wilman had intended to create a reasonable plan to ease her back into work (page 1776).

[197]The email from the claimant of 4 September 2020 was forwarded to Johanna Wilman by Dr Whittaker. In an email of 10 September 2020 (at page 1806) she (Mrs Wilman) commented that the email from the claimant had really upset her. In paragraph 52 of her witness statement Mrs Wilman says that she did “not have an ‘attitude’ towards the claimant or her request for adjustments. It was after this claim that I decided to protect myself and always meet with her alongside Sahra [Garuf], never alone. I felt compromised and upset when I found out that she was accusing me of not being sympathetic to her needs. I had no contact with the claimant in the time leading up to her making the allegations. She did not know me and had no grounds to accuse me. I felt vulnerable in a way that I have never felt before. I treat all my staff with care and compassion. I felt that the claimant was harassing me. Needless to say, this has nothing to do with her disability. Had a non-disabled person treated me this way, I would have acted the same way.” Also on 10 September 2020, Mrs Wilman sought help and support from the second respondent’s HR department (page 1866).

[198]On 7 September 2020 Mr Jones emailed the claimant to inform her that he was happy to offer clinical supervision on a fortnightly basis. This email is at page 1791.

[199]In an email of 7 September 2020, Sahra Garuf expressed concern to Sara Whittaker to the effect that the claimant had mentioned concerns around Mrs Wilman’s attitude towards her (the claimant). The email is at page 1794. Dr Whittaker said (at page 1793) that she would “try to settle things again – but we appear to have different perspectives.” A similar sentiment 10.5 Reserved judgment with reasons – rule 61 35 March 2017 was raised by Sahra Garuf in her email to Dr Whittaker of 8 September 2020 (pages 1782 and 1783). She said that, “adjustments that haven’t been put in place are causing Catherine to be stressed. I picked up that Catherine feels as though Jo [Wilman] is not being supportive and doesn’t trust her. I think that Jo will need to have a look at the OH report and the tracker if not already done so. Jo will need to have a discussion with Catherine and reassure her that she is doing her best to get the adjustments in place for her and be clear with Catherine.”

[200]Dr Whittaker emailed Johanna Wilman on 8 September 2020 (page 1808). She acknowledged that “some of our hopes for this week have not been well received. I accept the blame – but this has been projected on to you I’m afraid. My apologies.”

[201]For week commencing 7 September 2020, it had been planned for the claimant to work from home on 8 and 9 September 2020 and for her first day at the CDC to be 10 September 2020. The plan was for her to collect her laptop that day and then meet colleagues on 11 September 2020 and familiarise herself with the CDC. This plan was confirmed in an email from Mrs Wilman to the claimant of 9 September 2020 (pages 1847 and 1848).

[202]The claimant and Mrs Wilman met on 9 September 2020 by Microsoft Teams. This was the day before she was scheduled to start at the CDC. The claimant expressed some misgivings about the plans for week commencing 14 September 2020 as it was envisaged then that she would be attending the CDC three times (once to meet with Mr Jones and then upon two further days to work at the CDC). The claimant expressed these concerns in an email at page 1846.

[203]On 11 September 2020 the claimant had a further line management meeting with Dr Whittaker (pages 3305 to 3308). She confirmed that she had met the team at the CDC. At this stage, she was still undergoing her induction: see page 3305. The first respondent’s chronology says that upon this day she collected her configured laptop. This appears to be incorrect. The claimant says in paragraph 115 of her witness statement that this was collected from Kevin Striker of the second respondent’s IT department on 6 October 2020. This was also Johanna Wilman’s evidence before the Tribunal. As this appears to be agreed, we find as a fact that the claimant collected it on 6 October 2020.

[204]In paragraph 103 of her witness statement the claimant says that, “On 11 September 2020 I sent an email to Kevin Striker who worked in TRFT’s IT department, (I had his contact details from emailing IT previously). I sent him a list of items that should have been ordered as recommended by Access to Work. This included the software and technology that had been recommended by ATW (1831). I was surprised to learn though that nothing save the laptop had been ordered. Kevin asked that I send him all the software codes and download links so that we could add them to the laptop and I should find out what “onsite training, set up and support visit” involved. (1830).”

[205]In paragraph 105 of her witness statement the claimant complains about the induction at the CDC during her first week following her return from annual leave. She says that, “those I was shadowing were not aware I was doing this, nor was it added to the electronic diary, which made it difficult for me 10.5 Reserved judgment with reasons – rule 61 36 March 2017 to understand what I needed to attend. Sara kept arranging for me to shadow Jo, but Jo would keep changing this. I did not even have my own fob for the building so couldn’t move around freely. Simply put, this service extended no effort to induct me or even include me. I’ve never felt more unwanted and certain that if I did not work exactly how they wanted me to they would make my role difficult.”

[206]On 15 September 2020 Johanna Wilman emailed Dr Whittaker and Vicky Whitfield (pages 1893 and 1894). She wanted to “double check all of the adjustments identified as necessary for the claimant.” She confessed that she was struggling with the tracker presentation and asked for it to be presented in a more user-friendly way. She also asked for any specific allegations raised against her by the claimant.

[207]Sahra Garuf replied on 16 September 2020 (pages 1892 and 1893). She said that there were around 70 adjustments and it was difficult to present them other than in the tracker format. She said that the claimant’s concerns were that her adjustments were not being met, particularly in relation to the phased return to work plan and that she should only work in the office two days a week. There were also concerns around lunchbreaks, flexibility and space and laptop/IT equipment.

[208]On 16 September 2020, Dr Whittaker emailed Johanna Wilman to ask whether she had the original Access to Work paperwork “which we could go through alongside the orders and establish what we have? And then work out what to do.” This is at page 3479.

[209]On 16 September 2020, the claimant was sent a link to download Dragon. She asked IT whether she could also have access to Grammerly and Otterly and dictation software for the Dictaphone (page 1913).

[210]On 17 September 2020 the claimant emailed Johanna Wilman with an update concerning the preparation for her viva. She sought some time to prepare for it (pages 1842 and 1843). She acknowledged the need for her to complete mandatory training and her plans to start working with the clients. In reply, Johanna Wilman said that the claimant had “enough to be getting on with and she had sufficient staff to manage the current waiting list”. She said that, “at the moment we need you to do some more shadowing and then to start contacting the families on the psychology list to see where they are in terms of need and support … we are looking at doing more face to face clinics so in the coming weeks there will be opportunities to spend time with all team members including the consultants.”

[211]A meeting was held between the respondents to review the position on 17 September 2020. This is recorded in the email from Vicky Whitfield to Dr Whittaker, Johanna Wilman and Maria Jessop, HR business partner (page 1909). It was agreed to work through the list of adjustments with the claimant whereupon the second respondent would confirm which of them may be accommodated.

[212]On 17 September 2020 the claimant’s father Dr Peter Tyerman made a Freedom of Information Act 2000 request of the second respondent. This is at page 1908. He said, “I have found the attached document. It appears to be an annual report for Rotherham Clinical Psychology Services for Children. I would like to request any further or past annual reports from this 10.5 Reserved judgment with reasons – rule 61 37 March 2017 service. This one appears to be from the year 2009 to 2010.” He goes on to say, “I also wish to be supplied with the unit names, contact details and locations of the clinical psychology units providing services for children within the Rotherham area.”

[213]On 23 September 2020 Johanna Wilman emailed Kevin Striker (page 1933). She asked him to set up the claimant’s laptop with the necessary software as soon as possible. This corroborates the Tribunal’s earlier conclusion that the first respondent’s chronology that the claimant collected the configured laptop on 10 September 2020 must be incorrect.

[214]On 24 September 2020, the claimant emailed Dr Whittaker. She had attended the CDC that day but had found it difficult to work because of the distractions. Her email is at pages 1964 and 1965.

[215]On 22 September 2020 the second respondent replied to Peter Tyerman’s Freedom of Information request. The reply is at pages 1928 to 1931. It is not necessary to set out the details of the reply here as, in contrast to later requests made by him, this doesn’t go to any of the issues in the case.

[216]On 28 September 2020 Dr Whittaker replied to the claimant’s email at pages 1964 and 1965. Her reply is at page 1963. She said that she was sorry to hear of the claimant’s experiences as recounted in the email of 24 September 2020. The emails were copied by Sara Whittaker to Sahra Garuf (page 1963). Dr Whittaker said that she had now been served notice from the second respondent on the CDC contract “so Catherine is right that CDC do not value psychology at this time.”

[217]On 28 September 2020 Johanna Wilman emailed Jane Saunders of the second respondent’s HR department (page 1948). She said, “Jai [Lawes] has been in touch this morning after speaking with Sheffield and we may not have to make any adjustments. Sheffield are talking about how Catherine doesn’t feel valued and may want to leave CDC earlier. Shall we watch and see what happens?”. Jane Saunders replied (page 1948) that while ever the claimant was working for the second respondent, the first respondent has a duty to make reasonable adjustments and the second respondent has a duty to reasonably accommodate them. She said, “I will be wanting an email from Sheffield confirming that they have agreed with X [the claimant] to put the progression of reasonable adjustments on hold whilst she decides if she wants to remain in CDC.” It was suggested to Johanna Wilman by Mr Keen that she was hoping that the claimant would leave to obviate a need for adjustments for her. This she denied. She replied that “psychologists are hard to come by.” There was similar crossexamination of Victoria Whitfield.

[218]The emails emanating from the respondents towards the end of September must be seen in the context of Dr Whittaker having received verbal notice that the psychology contract for the second respondent would terminate by the end of March 2021. On 29 September 2020 she emailed Linda Wilkinson, Sahra Garuf and Maria Jessop to this effect (page 1966). Dr Whittaker said that the verbal notice was, “for both the 8a and band 7 aspects.” She said, “I have also had the indication that if we wish to move Catherine now prior to her starting clinical work, that the CDC would be happy with this. The CDC report that they have worked on a new service model which does not require psychology – unfortunately yesterday was the 10.5 Reserved judgment with reasons – rule 61 38 March 2017 first I found about this from Jai – commissioning manager. However, this makes sense of the feeling that Catherine has reported that she and psychology are unwanted in the CDC. However, staffing wise we would need to make some careful decisions and planning. It seems it may not be worth spending the time working with [the second respondent] to embed Catherine say for six months.” She went on, “Would we want to look at offering another role/transferring Catherine to another part of the psychological service? I think her disability adjustments would be easier to manage for SHSC rather than with a SLA arrangement. Are there other options?”

[219]In paragraph 114 of her witness statement Dr Whittaker says that, “On 29 September I had a meeting with Jo [Wilman] to work through the adjustments. This had been arranged for a while, before Rotherham had told me that the contract was going to end. We did talk about the contract being terminated. Jo was sorry about this and sorry for the situation that Miss Tyerman was in but was happy for Miss Tyerman to stay with the CDC until the contract ended. Jo felt that Miss Tyerman could contribute and learn during the remaining six months of the contract. I was happy to proceed on that basis. We talked about the adjustments that were still outstanding on the tracker and we were able to agree most of them. I followed up that meeting by email on page 1976. Jo responded with some further updates the following day (page 1975), noting that the meeting had been productive and that she was pleased that adjustments could be made. I sent the tracker to Jo on 30 September (page 3524). Following the meeting I had a further discussion with Sahra [Garuf] on 1 October and the tracker was updated and Sahra sent it to Miss Tyerman on 2 October (page 1990).” She goes on to say at paragraph 115 that, Rotherham formally served notice of termination on 30 September (page 1979) which we will discuss in more detail below. The email at page 1976 ran to 19 items including permitting the claimant to work two days in the office and partial days should she feel fatigued. A room was arranged for her (this bring room G18). The tracker of the same date recorded agreement for the claimant to take breaks while in the office (page 2001). In evidence given under cross examination, the claimant said that the taking of breaks had been agreed but that she was struggling to take them under the pressure of work. It also noted that Dr Whittaker and Mr Jones would sign off her reports and would investigate whether any proof reading services were available. A link was to be provided to the disability support group and the claimant was provided with contacts for “organisational issues.” (The claimant in fact rejected the nominated individual dealing with those issues as there had been some “difficult conversations” between them). The claimant’s mobile telephone was ready for collection “this week.” It was collected by the claimant on 6 October 2020. A “training offer” had been received by the claimant and enquiries were to be made about this being delivered on-line.

[220]We shall now consider the second respondent’s evidence about the ending of the contract for psychology services. In paragraph 57 of her witness statement, Johanna Wilman says, “In September 2020, there were discussions about whether we could look at a different provision as the current service level agreement with Sheffield was not working. I don’t know the exact details of when or how the contract agreement was ended 10.5 Reserved judgment with reasons – rule 61 39 March 2017 because I was not party to this. I understand that the decisions were made much higher in the organisation at a corporate level”.

[221]She goes on in paragraph 58 to say that, “It did not come as a shock to me that the service was being changed because the service had been in decline for many years. We had failed recruitment drives and therapy staff did not want to do purely assessment work.”

[222]She says in paragraph 59 that, “The claimant suggests that I did not tell her immediately that the contract to provide psychology services the CDC was ending. I do not accept this. I was not involved in communicating the message to the claimant.”

[223]She then says in paragraph 60 of that, “On 5 November 2020 I sent an email to Sara setting out that the decision to give notice was not made by me and was made at a higher level. I told Sara that I was upset about it and wanted to let the claimant know that I was thinking of her (page 2275 to 2276).”

[224]In paragraph 61 of her witness statement, Johanna Wilman comments that, “On 30 November 2020 I sent an email to the CDC team informing them that the decision had been made to give notice to end the clinical psychology contract and I asked the team to support the claimant during this time (page 2405).”

[225]Gillian Willers says in paragraph 17 of her witness statement that, “As the lead of the division, I made the decision to give notice under the contract with SHSC with the support of my divisional management colleagues.” She says that this was because, “the psychology part of the service had been failing for a number of years because of recruitment issues and inconsistency of service delivery. The SHSC contract was proving very difficult to maintain. Our focus was on quality, performance and cost effectiveness, all of which was failing with the psychology function.” In paragraph 19 she says that, “We continued to receive quarterly invoices from SHSC that were rarely amended to reflect the gaps, reduced hours or lower grades of staff. What followed was numerous emails and phone calls to SHSC to ensure that we were invoiced correctly.”

[226]She goes on in paragraph 21 of her witness statement to say that when the decision was made in September 2020 she, “had never met the claimant and I did not interact with the claimant or her role. Having said this, no service or contract would be terminated on the basis of an individual. There are approximately 700 individuals in family health and they cannot form any part of a contract negotiation process. There are other processes to follow if we have people management concerns … the claimant was not a consideration in the decision to end the SHSC contract. The claimant and the claimant’s disability did not form part of the decision-making process.”

[227]Mrs Whitfield gives evidence in her witness statement about the decision to change the service model. In paragraph 21 she says that, “The decision to change the service model was taken due to an underperforming clinical psychology service which had been delivering a deteriorating service for two years and which by the summer of 2020 had been entirely suspended by SHSC”. She says in paragraph 22 that, “There had been concerns about the service for some time. However, discussions about trying something completely different really started in an informal way in the summer of 2020. 10.5 Reserved judgment with reasons – rule 61 40 March 2017 The discussions were between Jo Wilman and me – and then went on to include Gill Willers (general manager for the division).”

[228]In paragraph 23 she mentions that, “The decision to change the service model was not because of the claimant. It was based on the significant and ongoing difficulties with psychology staffing at the CDC which were resulting in a poor service for families.” She says in paragraph 24 that, “It had been clear for a while that the current staffing arrangements were not working and that something different needed to be tried. This is what led to the change in the configuration of the staffing at the CDC to create a new band 7 post (which was filled by the claimant). Reference is made to this in the annual report 2019/20 (page 398). Reference is also made to TRFT’s reluctance to support another attempt to recruit a part time band 8a given the previous difficulties (page 939). This marked a partial disinvestment in the service at this point. It would be fair to say that TRFT’s patience was starting to run out before the claimant’s appointment.”

[229]In paragraph 25, she observes that, “The claimant did not properly start in her role until September 2020. At the point at which notice was given on the contract (end of September 2020) the focus was still on her induction and settling her into the team. My understanding is that her contact with patients at this stage was minimal. The decision to end the contract was unrelated to the claimant’s performance.”

[230]Mrs Whitfield says in paragraph 34 of her witness statement that, “There was no firm plan in place when the decision to give notice was made. However, there was a recognition that the current psychology arrangements were not providing a good service and that this had been the case for over two years – with no service at all for a significant part of 2020. TRFT took the view that it was not responsible to keep ‘flogging a dead horse’ and the decision was taken to terminate the current contract so that it would end in March 2021. The intention was to use the notice period to explore other options and develop an alternative model.”

[231]In paragraph 35 of her witness statement Mrs Whitfield comments that, “In December 2020, the Rotherham CCG contacted TRFT to request an update on psychology input to the CDC. There had not been any discussions about changes to the service model and the CCG prior to this, although we do generally aim to keep the CCG ‘in the loop’ on such matters. TRFT is commissioned to deliver the service overall and it would not normally ask permission from the CCG to make an operational change.” She goes on in paragraph 36 to say that, “TRFT updated the CCG on planned changes when they made contact in December and the rationale behind them. TRFT reassured the CCG that the plan was to continue with psychology input, but to use the services of an educational rather than clinical psychologist. The CCG did not raise any objection to this in view of the performance problems with the current clinical psychology services.”

[232]As with Mrs Willers, Mrs Whitfield says (in paragraph 37 of her witness statement) that, “The quality of the service being delivered by the claimant was irrelevant as she had barely started in her clinical role when the contract was terminated and it was the performance of the service overall that was of concern.” 10.5 Reserved judgment with reasons – rule 61 41 March 2017

[233]In paragraph 38 she goes on to say that the intention in future is for an educational psychologist to become part of the team. She says in paragraph 43 that clinical and educational psychology are entirely separate training pathways at doctoral level. In paragraph 46, she gives evidence that the psychology contract has not yet been awarded to another contractor, but discussions are taking place with another service provider’s educational psychology service about the contract. She says that the discussions began at around the same time as notice was given to the second respondent in September 2020.

[234]There are email exchanges between Vicky Whitfield and a potential provider of an educational psychologist at pages 3560 to 3562. These are dated 25 September 2020. At page 3557 (dated 26 January 2021) Vicky Whitfield said that conversations were being pursued with Rotherham MBC about buying in educational psychology services from the time that the contract with the first respondent ends. She said that this was “good news as this will keep us NICE compliant in this respect.”

[235]In evidence given under cross-examination, it was put to Vicky Whitfield that the reason the service was not being provided was because of the respondents’ failure to make reasonable adjustments and that ought to have factored into her decision as to whether to pay for the service. She replied, “My decision was not based on adaptations, I was not aware of a lot what’s gone on. It was that this service had not been provided for a number of years.”

[236]She confirmed that at the time that notice was given to end the contract, no alternative provision had been arranged.

[237]She was then taken by Mr Keen to the second respondent’s grounds of resistance. At paragraph 15 (on page 172) it is pleaded that the second respondent made the decision to give notice on the basis that they required a different service model and had made the decision that there should be an educational psychologist-led service which would provide a more holistic service to the children in their care. It was suggested to Mrs Whitfield that this pleading was incorrect and that it ought to have said that notice was given because of a dissatisfaction with the service from the first respondent. She agreed with Mr Keen’s proposition that the decision to end the contract was not based on a firm decision having been taken to commission an educational psychologist instead of a clinical psychologist. She said that the contract was ended, “because we weren’t getting the service and needed to look at other options. An educational psychologist was not the only option.”

[238]Vicky Whitfield was then was asked whether the decision to end the contract had been made at a meeting. She said that she had made the decision following discussions with Mrs Willers. Surprisingly perhaps, this appears not have been documented.

[239]In paragraph 20 of her witness statement, Victoria Whitfield says that, “During the summer of 2020, some initial conversations were had within TRFT about a possible change of model. This was because the team had been forced to find ‘work arounds’ … to address the lack of psychology input and these appear to be providing a satisfactory level of support.” Mr Keen cross-examined her upon this aspect of her witness statement in 10.5 Reserved judgment with reasons – rule 61 42 March 2017 conjunction with page 2204. This is a page within a document authored by Johanna Wilman and Mrs Whitfield (sponsored by Mrs Willers) entitled “Expansion of Capacity within Child Development Centre”. It is dated 13 March 2020 and commences at page 2201. Mrs Whitfield agreed that one of the strategic concerns identified in this document was the difficulty in recruiting psychologists. It was put to her that there is no reference within this document of a need to go into schools or a need for educational psychology. She said that the purpose of the document “was to deal with getting additional funds to recruit” and was aimed at “funders”.

[240]Mr Keen then put it to her that in reality there was very little schooling between March 2020 and September 2020 in any case because of the pandemic. Mrs Whitfield said that it was their “experience that young children were going into nursery and it was difficult for parents to cope with children who can’t access a nursery place without our support.” She accepted there to be no documented evidence of discussions upon this issue with Johanna Wilman.

[241]She then said that the document commencing at page 2201 was in fact a first draft. (This had in fact been discovered by the claimant upon the second respondent’s systems. It was used by claimant for her grievance and the copy in the bundle emanated from her). Mrs Whitfield said that it had not occurred to her that the other iterations of this document should be part of the bundle.

[242]The absence of documented contemporaneous material supportive of the second respondent’s pleaded case that in September 2020 a resolution had been reached to move to an educational psychologists’ approach is remarkable. Mrs Whitfield said that in fact they were currently on “version 12” of this document and mention was made in later versions of the need for educational psychology.

[243]It was suggested to Mrs Whitfield that the decision to end the contract would not have been taken had the claimant been able to “hit the ground running”. This Mrs Whitfield denied. She said that “we were still having a discussion about what sort of psychological service we needed moving forward.” When asked by Mr Keen as to when these discussions took place she replied, “There are no minuted meetings, we were having discussions over the course of the summer.” When asked to be more specific she said that “Jo Wilman and I had touch points, CDC leadership meetings where the topic may come up, discussions about tensions, gaps, over the water cooler type of conversations. I looked at my diary yesterday.” Her diary was not disclosed in these proceedings.

[244]Mr Keen challenged Mrs Whitfield again that paragraph 15 of the second respondent’s pleaded case (page 177) was simply wrong and that there was no formulated plan to recruit an educational psychologist. She replied, “I’d contacted the educational psychology service, we were working up ideas with the local authority.” She was then taken to the emails at pages 3725 and 3908 and 3909 dated 25 September 2020. (These are in fact also in the bundle at pages 3560-3562 and 3557 to which reference was made in paragraph 234). This was of course very close to the time when notice to end the contract with the first respondent was served. 10.5 Reserved judgment with reasons – rule 61 43 March 2017

[245]On any view, it is plain that no firm decisions had been taken in September 2020. Mrs Whitfield said that, “it seemed worthwhile to explore it.” She accepted there to have been no further contact with Rotherham MBC about the provision of an educational psychologist until January 2021. She said that in the meantime work arounds such as those described in paragraph 18 of her witness statement had been utilised by the second respondent in availing themselves of an early help service run by Rotherham MBC, the early attachment team, specialist clinics in Sheffield and a new nurse-led service.

[246]It was put to Mrs Whitfield that the reference to the first respondent failing to provide a service was in reality a proxy or euphemism for the claimant’s failure. The claimant was effectively the personification of the first respondent at this time as she was the only psychologist following Lisa Moss’ departure. This Mrs Whitfield denied. She said that, “There had been discussions over a couple of years. We did have a discussion about the instability of the service.” She described the contract as “unstable” and accepted that it was taking up a lot of management time. She denied however that the second respondent was motivated to end the contract to “do away with the problems.”

[247]Mrs Whitfield said that some of the adjustments requested by the claimant could not be accommodated by the second respondent. She gave as an example the request for the provision of a proof-reader. She said that the second respondent did not have the capacity so to do.

[248]It was suggested that the second respondent was reluctant to make adjustments. She was drawn to the second respondent’s pleaded case (in paragraph 37) that the second respondent was under no duty to make reasonable adjustments. She replied, quite reasonably in our view, that she has no legal expertise. She said that she understood there to be an obligation to the claimant and of her “statutory and moral duties” towards her.

[249]Mrs Whitfield was then taken to a reply to another Freedom of Information Act request filed by Peter Tyerman. The request was made of the NHS Rotherham Clinical Commissioning Group and was dated 17 November 2020. It was pointed out to her by Mr Keen that the CCG’s reply was to the effect that they would expect to be consulted about plans to remove the psychology element from the CDC. That no information was forthcoming about any consultation indicated that no firm plans had been made at the time of the notice of termination. She confirmed there to have been no plans to have a replacement service even as late as March 2021.

[250]Mrs Whitfield denied that the metaphorical “dead horse” referred to in paragraph 34 of her witness statement was a reference to the claimant. It was suggested to her that this was reflective of her view that there was no separation in reality between the claimant on the one hand and the first respondent on the other. She denied a reluctance to make reasonable adjustments for the claimant. We find on the evidence that the “dead horse” was not a reference to the claimant but rather to the first respondent’s psychology services generally. We agree with Mr Keen that adverse inferences may be drawn against both respondents from the unsatisfactory nature of the evidence and disclosures as just described and the second 10.5 Reserved judgment with reasons – rule 61 44 March 2017 respondent having pleaded a case inconsistent with the evidence. However, that must be weighed against the evidence of a history of instability and poor performance of the first respondent’s obligations. There was no evidence that the claimant was even known to the decision makers within the second respondent. There was no evidence that a different view would have been taken were it to be a non-disabled band 6 in post. The simple fact of the matter is that the second respondent had no confidence in the first respondent against a history of poor service and only an inexperienced psychologist in post.

[251]Mrs Whitfield was then taken to page 1967 which is an email from Mr Lawes of 28 September 2020. He confirmed that he was happy to bring forward the end date for the claimant’s work within the CDC. Mrs Whitfield confirmed this to be the case but understood this to be at the claimant’s request as it was her preference to leave. It was suggested on behalf of the claimant that nowhere did the second respondent say that there was a need for her services until the end of March 2021.

[252]On 1 October 2020, Mrs Wilkinson set about looking for an alternative role for the claimant. We refer to pages 1984 to 1989. At this point, the claimant was unaware that notice had been served by the second respondent to end the contract. Mrs Wilkinson justified this (in paragraph 16 of her witness statement) upon the basis that the first respondent “needed this time to work through its internal processes and next steps. We considered sharing information with Miss Tyerman and decided that it was not appropriate to do so initially as we were working through and processing the newly received information to determine what to do next. We also had to follow the Trust’s organisational change policy which required Sara drafting a management occupational health in respect of the proposed organisational changes in respect of Rotherham’s decision to terminate CDC. I supported Sara [Whittaker] in drafting this, the first draft is at page 2219, Sara was the lead person putting this document together as she was liaising directly with HR (page 2174). As a consequence of this process Miss Tyerman was not informed of the changes until the management case was approved by the Trust. This then had to be followed by a period of formal consultation with Miss Tyerman to consider alternative roles and possible re-deployment.”

[253]Dr Whittaker refers to the need to write a case for change document under the respondent’s organisational change policy. We refer to paragraph 118 of her witness statement. She refers to the organisational change policy at page 626 in particular at pages 629/630 where the process is outlined. She said that she wished to inform the claimant as soon as possible, but understood the policy requirements which were to first engage the staff side representatives. She refers to a meeting attended by her, Sahra Garuf and Maria Jessop on 13 October 2020 to this effect (pages 2098 and 2099). It was noted that the claimant’s university had cancelled the viva which had been arranged for 12 October 2020. The claimant had been given six months to achieve her qualification when she commenced employment. In the light of this development, an extension of time was agreed.

[254]On 2 October 2020 Sahra Garuf wrote to the claimant (page 1990). A further tracker had been produced. A meeting was arranged for discussion about this with Dr Whittaker and Sahra Garuf on 8 October 2020. She recommended that the claimant attend with someone who could support 10.5 Reserved judgment with reasons – rule 61 45 March 2017 her. Miss Garuf suggested that the claimant be accompanied by a trade union representative or a support or disability advisor. The claimant was concerned by this suggestion. She reasonably asked, “Why at this point [does it] feel important to have support there?” In her witness statement in paragraph 113 she says that she was “concerned about the sudden formality of the meeting, given that we have been working together, the three of us, to resolve my adjustments.”

[255]In the event, the meeting took place on 8 October 2020. The claimant was accompanied by a learning disability nurse. It appears that this individual had no further involvement in the matter after the meeting. Sahra Garuf then provided the claimant with the name of the first respondent’s “freedom to speak up” guardian (page 2023).

[256]The notes of the meeting of 8 October 2020 are at pages 3316 to 3320. The claimant had returned on 5 October 2020 to her full four days a week contract. The plan was for her to see 12 families on the psychology list. The expectation was for the claimant to draft letters and then send texts to the families. They had not yet been contacted. The claimant had collected her configured laptop on 6 October 2020. Provision was made for administrative support as recorded at page 3316 and with letter drafting as noted in page 3318.

[257]Mr Jones provided supervision and assistance for the claimant. On page 2100 is an email from him to the claimant of 13 October 2021. He said, “It appears that the 12 people on the waiting list had been waiting for up to 18 months as you indicated.” It was suggested that, after checking with any relevant professionals, the claimant contact the families in order to update or check in with them. He provided some suggested wording for this approach. It was agreed that the claimant would work two days in the office and then only partial days if she was fatigued.

[258]On 8 October 2020, the claimant prepared her first client letter. She provided an update to Johanna Wilman about the work she had been undertaking that week. The relevant email is at pages 2060 and 2061 and dated 8 October 2020.

[259]On 13 October 2020 the claimant emailed Sara Whittaker (pages 2094 and 2095). She raised concerns about the first respondent’s approach to the meeting of 8 October 2020 and the need for the claimant to be accompanied. Sara Whittaker defended the first respondent’s position upon the basis that the claimant, it was thought, may benefit from having someone at the meeting to support her in line “with Trust policies”.

[260]On 14 October 2020 the claimant requested an independent review of her adjustments (pages 2036 and 2037). She was concerned that she was working without all of the reasonable adjustments which had been recommended. She acknowledged that she was going through the mandatory training “which I am completing as I write this.”

[261]This appears to have led to a meeting the following day, 15 October 2020, attended by the claimant, Sahra Garuf and Sara Whittaker. (If we are wrong on that, it is clear anyway that this meeting was to discuss the claimant’s adjustments). 10.5 Reserved judgment with reasons – rule 61 46 March 2017

[262]Dr Whittaker expressed (in paragraph 120 of her witness statement) concern about the claimant’s views (which she had come to hold by midOctober) as she had wanted to support her and considered that most of the adjustments were in place by this stage. In paragraph 121 of her witness statement she says that most of the items on the tracker had been agreed and, “All the Access to Work equipment had arrived and all adjustments recommended by OH had been considered and mainly implemented, with the exception of a formal stress risk assessment and wellness recovery action plan which was being managed on a more regular basis in the context of my management meetings with Miss Tyerman.” She goes on to say in the same paragraph that, “some of the precise adjustments requested were not needed because others had been made – eg, the adjustment relating to the difficulty managing technology in a noisy shared office had been managed by booking private offices where Miss Tyerman could write up reports, meaning that she would really only be in the shared space to take part in multi-disciplinary meetings – formal or informal discussions.”

[263]In addition to the meeting with Dr Whittaker and Sahra Garuf held on 15 October, there were two further meetings held that day. One was attended by Dr Whittaker and the claimant alone. The other was with Dr Whittaker, Johanna Wilman and the claimant. The aim of the latter meeting was to resolve room bookings. The status of the adjustments was reviewed.

[264]According to paragraph 124 of Sara Whittaker’s statement, there were issues at this stage around the claimant’s “need for batteries, telephone and mobile set up, need for a different chair/laptop stand as the individual office room had not been set suitably for sustained office work. Miss Tyerman raised not being able to carry her equipment from one room to another or on home visits. We looked at problem solving, borrowing a different chair and using a trolley/wheelie suitcase to move items safely and I agreed to look at room bookings again for a fixed space. I was then advised by Miss Tyerman that she could not carry items. I asked for health and safety advice and agreed to undertake an assessment, which was declined by Miss Tyerman as it was later felt not to be needed.” She goes on to say that, “Jo and I agreed a letter for clients and how to start the client work – supported by Dr Steve Jones and myself. We reviewed the draft letters and agreed a process to support Miss Tyerman with admin support to arrange her appointments.” A follow up email was sent by Dr Whittaker (page 2126). This confirmed (amongst other things) that arrangements had been made for the use by the claimant of rooms on the days upon which she was to work in the office: see paragraph 267 below. It has to be said, again, that it was difficult for the Tribunal to piece together which rooms were made available to the claimant upon which days as the email at page 2126 does not correlate with paragraph 128 of Mrs Wilman’s witness statement.

[265]In paragraph 125 of her witness statement, Dr Whittaker says that at the meeting of 15 October 2020 attended by her, the claimant and Sahra Garuf, the claimant “wanted to be able to choose when she worked from home and the note in the tracker was that she needed to seek permission. We talked about this and agreed that Miss Tyerman would identify when she felt she needed to work from home and have a discussion with Jo rather than “seeking permission”. From my point of view, the only absolute issue would 10.5 Reserved judgment with reasons – rule 61 47 March 2017 be if there was a client booked in at a time that Miss Tyerman wanted to work from home, in which case if Miss Tyerman felt that she couldn’t continue to work at the CDC, we’d need to consider sick absence. Miss Tyerman agreed to this. I still hadn’t been able to agree with Rotherham that we could designate a room for Miss Tyerman at CDC for her sole use. This was out of my control, but as an alternative, I had managed to book a room for Miss Tyerman on the days that she would be working in the CDC until March 2021.” There was then a discussion about the assistance given to her by Dr Jones and the need for a second screen. The meeting ended with an agreement to review the position in December. The claimant emailed Dr Whittaker on 16 October 2020 to thank her for the meeting which “seemed helpful” (page 2138).

[266]For her part, Dr Whittaker emailed the claimant on 30 October 2020 (page 2183). Attached to the email was a letter at pages 2184 and 2185 dated 26 October 2020.

[267]This letter confirmed the salient parts of the meeting held on 15 October 2020 including the requirement for there to be a discussion with Jo Wilman should she be feeling fatigued rather than having to seek permission to go home. She qualified this by saying that, “if there was a client appointment booked in and you were unable to attend you would need to consider if sickness absence would be the appropriate situation.” She mentioned that she was having difficulty booking a room for the claimant’s use but confirmed that, “in the meantime I have managed to book rooms for you until the end of March 2021.” As she said in paragraph 128 of her witness statement, Dr Whittaker had booked “Room G12 … for Miss Tyerman for each Tuesday, G1 had been booked for Wednesdays until 31 December and we had asked to extend this until the end of March, and G1 had been booked on Fridays until the end of March.” She noted that the majority of documents were being sent electronically which enabled the claimant to expand to size font 12 and that extra time was being allowed to undertake her client work with provision for “breaks/stretches in meetings.” She had the use of a second screen which she was currently borrowing as she was then “working in the children with disabilities office.” This was prior to the claimant starting clinical work on or around 29 October 2022. Mention was made of the administrative support available. The letter recorded the claimant’s acknowledgement of the support offered to her by Mrs Wilman in allowing her to see less clients and affording extra time. It appears from the email at page 2335 that room G1 was booked for the claimant’s use from around 17 November 2020.

[268]There were several issues arranging the claimant’s training. Accordingly, an extension of time for the claimant to complete this was granted on 19 October 2020. The deadline was now 31 December 2020. The relevant emails concerning issues around training are at pages 2133, 3396, 3401, 3440 and 1927. Dragon software training took place on 28 October and 13 November 2020 (pages 2122 to 2124).

[269]At the regular line management meeting held with Dr Whittaker on 20 October 2020 (pages 3329-3331), it was agreed that the claimant would send three client letters per week. A lockable cupboard was to be provided for her use in conjunction with the rooms booked out for her by Dr Whittaker. A suggestion was made of moving her equipment by using a wheeled cart. 10.5 Reserved judgment with reasons – rule 61 48 March 2017

[270]There was another line management meeting with Dr Whittaker held on 29 October 2020 (pages 3332-3336). It was recorded that the claimant was sending out three letters to clients per week. When in Kimberworth Place, it was noted that she was working in allocated rooms on Tuesdays and Fridays. When in on Wednesdays, an allocated room was available for her until the end of December and an extension had been requested to the end of March 2021.

[271]In the meantime, the case for change document referred to in paragraph 252 above had been prepared (page 2219). A meeting had taken place on 22 October 2020 with a trade union representative, Sue Highton. It was agreed that the claimant would be informed in early November of the position. At that stage it was proposed (at page 2222) that “there would be a four week engagement period, an informal consultation in December. Miss Tyerman would then enter the formal re-deployment period from 1 January to 31 March 2021.”

[272]The meeting with the claimant took place on 4 November 2020. The claimant was represented by Pat Pepper of the trade union Unite. Dr Whittaker acknowledges that the claimant was shocked but “in part not surprised.” Dr Whittaker attributes the lack of surprise to the fact that the claimant had before the meeting in fact found the organisational change document at page 2219 on the CDC drive. This document of course identified that the proposed change would affect one member of staff (that being the claimant). It referred to the fact of notice having been served upon the first respondent by the second to end the contract with effect from 31 March 2021. The claimant was permitted to go home. On 4 November 2020 Dr Whittaker emailed the claimant, Pat Pepper and others with the formal consultation document (page 2262).

[273]On 5 November 2020, the claimant made a subject access request pursuant to the Data Protection Act 2018 (page 2273). This was raised of the second respondent. In broad terms, she was seeking information pertaining to her and her role as a clinical psychologist working at the CDC.

[274]On 6 November 2020, Dr Whittaker informed Mr Jones of the claimant’s potential redundancy. He asked whether “this is something that’s been in the works for a while or has it just come out of the blue.” He also raised the issue of the NICE guidelines. He questioned the suggestion made by the CDC that a psychologist is not required. We refer to pages 2258-2260. This echoes concerns raised before by the claimant: see paragraphs 132 and 155 above.

[275]On 9 November 2020 Sara Whittaker replied (page 2259). She confirmed that the redundancy came as a shock both to Mrs Wilkinson and to her. She said that she invited the claimant to look into and research the issue to enable Mrs Wilkinson to give feedback to the second respondent. Dr Jones offered his continued support for the claimant. He anticipated that the claimant may well “put two and two together in her mind about certain responses and interactions that she has received recently.”

[276]A meeting then took place on 11 November 2020 attended by Dr Whittaker and the claimant. It appears that Mrs Wilman was due to join the meeting but could not do so. (Mention was made in a subsequent telephone call 10.5 Reserved judgment with reasons – rule 61 49 March 2017 between Mrs Wilman and Dr Whittaker of the claimant’s subject access request of 5 November 2020).

[277]In an email of 11 November 2020 (pages 2306 and 2307) following up on the meeting that day it was noted that the only outstanding adjustment at that point appeared to be the team’s disability training. A concern had been raised about there being no activity recorded in SYSTM1. Mrs Wilman had asked that all 12 families on the waiting list be booked in. This appeared to be a departure from the arrangement for the claimant to send three client letters a week. Sara Whittaker noted that “Jo asked that now all clients need to be booked and all clients asked if they want a service.” It was also noted in the record at page 2306 that the service offered by the CDC was changing. Sara Whittaker recorded that “Covid has forced streamlining of the service. And CDC has managed without/with little psychology since August 2019.” There was concern that the claimant had improperly come across the organisational change document at page 2201 (referred to in paragraph 239) when looking for documents left by Lisa Moss. Mrs Wilman said that it was not acceptable for the claimant to be looking in her (Mrs Wilman’s) folder.

[278]A second informal consultation meeting was held with the claimant on 12 November 2020. This meeting appears to be recorded in the email sent by Sara Whittaker to Pat Pepper, the claimant, Maria Jessop and Linda Wilkinson on 19 November 2020 at pages 2355 to 2356. The meeting of 12 November 2020 was attended by Dr Whittaker, Maria Jessop and the claimant. The purpose of the meeting was recorded as being to “clarify, review and explain the process and to discuss options for ways forward. Catherine stated that she was keen to seek options and support for redeployment and had identified vacancies across a range of Trusts which were of interest to herself.” It went on to say that, “If the current plan is agreed to, once Catherine is on the at risk register on 1 January 2021, Catherine will be notified of vacant SHSC posts several days prior to a job advert being released. The timescale would then allow Catherine a full three months on the at risk register.”

[279]The first formal consultation meeting was held on 19 November 2020. It was attended by the claimant, Pat Pepper, Maria Jessop and Sara Whittaker. It was recorded (at pages 2355-2356) that, “we agreed to move through the process and to start seeking job opportunities whilst in this consultation phase, to be flexible and keep in good communication.” It was agreed that the first respondent would “informally highlight” to the claimant any suitable posts.

[280]On 12 November 2020, the claimant raised concerns upon the observation made by Mrs Wilman about the absence of recording of activity on SYSTM1. She said that she was unsure as to what needed to be recorded on that system. We refer to pages 2330 and 2331. Some guidance was given to the claimant on 19 November 2020 by Johanna Wilman (pages 2345 and 2346). As Mr Keen observed in his submissions, there is no evidence that the issue with SYSTM1 training was resolved or undertaken.

[281]On 3 December 2020, the claimant met with Johanna Wilman and Sahra Garuf. The tracker was updated. A note of the meeting is at page 2412. Dr Whittaker said that she had found a new lead to enable the claimant to 10.5 Reserved judgment with reasons – rule 61 50 March 2017 connect her laptop to the PC which will give her two screens. Mention was made of the fact that the telephone in the office does not work. This was followed by an email of that date in which the claimant said that she had been through the Access to Work document. The only things then outstanding were coping strategies training, awareness training and a Dragon USB headset: page 2401.

[282]Unfortunately, some issues had arisen with one of the rooms being used by the claimant. We can see from the emails of 3 December 2020 at pages 2422 and 2423 that the small G1 office did not have a functioning telephone and also there was an issue that the light was not working. The claimant had also complained that the larger office space was cold. Dr Whittaker wondered whether a heater may be provided. The issue was raised by Dr Whittaker again on 7 December 2020. Dr Whittaker said that she was reluctant to pay for any remedies as the room was only going to be used for another two or three months: page 2419.

[283]On 7 December 2020, Dr Whittaker referred the claimant to occupational health again. The referral form is at page 2428. It was explained in the referral that, “Catherine has a caseload of 6-12 clients. Catherine is provided with an office/clinic room for two days a week, a clinic room for one day a week and is able to work from home at least one day a week.” She goes on to say that, “Some weeks Catherine has asked to work all four days from home to manage her mood and her fatigue.” The termination of the contract was mentioned.

[284]The occupational health referral was made at the claimant’s request to enhance her re-deployment opportunities. Dr Whittaker said in the referral at page 2428 that she was “unsure if Catherine can manage the usual expectations of a band 7 clinical psychologist in an NHS setting – number of referrals, confidence, organisational abilities.” She also mentioned that the claimant had felt unwelcome within the CDC.

[285]In paragraph 128 of her witness statement, the claimant comments upon the meeting of 3 December 2020 to which we referred above in paragraph 281 and the outstanding issues. She said that there were issues around administrative support (including in particular proof reading). Further, there were still difficulties with Dragon software. Upon that issue, Dr Whittaker accepted in paragraph 155 of her witness statement that the Dragon headset was not accounted for despite being ticked off the list.

[286]The claimant also says in paragraph 128 of her witness statement that Grammarly and TextHelp had also not been supplied. She says that she was seeking a second computer monitor to help alleviate eye strain. Training was still outstanding. There was also an issue with setting up her hearing aids in certain rooms.

[287]She went on to complain (in paragraph 129) that the respondents had failed to adjust the way in which information was presented to her, in particular with the provision of agendas, minutes and action points in advance and written instructions using the correct format. She also complained that inadequate time had been afforded to her to learn new tasks and she had not been provided with a buddy or mentor. She felt that she was not allowed a flexible approach to start and finish times and was under pressure to get the work done. She also says that the sickness procedures were not 10.5 Reserved judgment with reasons – rule 61 51 March 2017 modified to reflect that the absences were triggered by her disabilities. This led to her ultimately going on to half pay on or around 11 March 2021 when she commenced the period of sickness absence on 5 January 2021.

[288]There does appear to be an inconsistency between what the claimant said at the time on 3 December 2020 per the email at page 2410 and the meeting record at page 2412 on the one hand and what she says in her witness statement in paragraphs 128 and 129. The latter certainly is more expansive in terms of outstanding issues than is the former.

[289]For her part, Dr Whittaker says in paragraph 152 of her witness statement that there were over 70 items on the tracker. The only two items that had not been arranged were the provision of a permanent office for the claimant and adjusting the relevant trigger points in the respondent’s attendance management policy to match the claimant’s periods of absence.

[290]In evidence given under cross-examination, the claimant accepted that although she had not been furnished with a permanent private office, rooms had been booked out for her until the end of March 2021. The claimant said that many of the adjustments had been agreed but not yet implemented. She did not accept that Johanna Wilman was flexible in terms of the claimant being allowed to go home without permission. She did concede however that Sara Whittaker had got the impression from the claimant that a more flexible approach had been agreed (as we said earlier).

[291]On 8 December 2020 the claimant submitted two grievances. The first of these is at pages 2429 and 2430. The grievance was addressed to Linda Wilkinson. This was about banding the claimant as a grade 6 psychologist even though she was effectively doing band 7/8a work. The second grievance is at pages 2246 to 2249. Again, this was addressed to Linda Wilkinson. This grievance was about the provision of the reasonable adjustments required by the claimant. She complained, amongst other things, that reasonable adjustments were not in place before she commenced her role in April 2020.

[292]Linda Wilkinson forwarded the grievances to Sara Whittaker. She replied on 10 December 2020 (pages 2540 to 2542). She set out the adjustments which had been made. This included the phased return to work plan in August 2020, fortnightly supervision with Mr Jones and the job plan encompassing working in the clinic and from home. Sara Whittaker said that the claimant had been asked to offer appointments to three clients for each week. To date three had been contacted or seen each week. She noted that, “Jo was then irritated that all clients had not been contacted.”

[293]In paragraph 127 of her witness statement, the claimant says that “by November 2020, my caseload had increased to 12 cases per week.” She says that this was a high caseload for even a non-disabled psychologist working four days a week. In evidence given under cross-examination Dr Whittaker said that she would expect a trainee to see three clients a day by the end of a 10 to 12 months’ placement (or even possibly four clients). She said that that would prepare them “for the world of work at band 7”. She said that at band 7, “you may expect to see 18 to 20 a week.” The weekly supervision note dated 20 November 2020 (pages 3337 to 3340) suggests that the claimant should “consider offering 2 weekly calls if unable to offer full caseload of 12 clients each week.” The claimant said that she could not 10.5 Reserved judgment with reasons – rule 61 52 March 2017 identify any more professional support than that which had been provided. It was mooted that Mr Jones may offer more support if required (page 339).

[294]Dr Whittaker said that the claimant’s workload was less than half what she would expect a band 6 psychologist to do in a week. That said, Dr Whittaker denied that she was dissatisfied with the number of contacts made by the claimant with clients. For her part, Johanna Wilman said that it was hoped that the claimant would start to see clients once the adjustments had been made with a “caseload of 12 children”.

[295]Also on 8 December 2020 (the same day upon which the claimant submitted her grievances) Dr Whittaker emailed her (pages 2465 and 2466). She said that she had reset the heating in room G1. She suggested that her items be locked away, another heater had been provided and she had provided her with a laptop stand and a lead.

[296]It appears to be common ground that the Dragon headset arrived (or at any rate was found) on 9 December 2020. Johanna Wilman noted on that day (pages 2424 and 2425) that the equipment had been ordered in April 2020 but could not be located. In his closing submissions, Mr Keen said that the headset had arrived or been located on 9 December 2020. This appears to be correct as on 10 December 2020 Johanna Wilman confirmed in an email to Sara Whittaker that the headset had turned up in the psychology drawer. This was a reference to a lockable drawer in the desk that the claimant was using when she attended for work in April 2020. Mrs Wilman surmised in cross examination that the headset had been in that drawer from April 2020 but was unable to help the Tribunal with precisely when it had arrived.

[297]On 10 December 2020 the claimant’s grievances were acknowledged by Linda Wilkinson (pages 3641 and 3642).

[298]On 15 December 2020 the claimant submitted a third grievance regarding the removal of her post from the CDC. This is at page 2785.

[299]On 26 January 2021 Linda Wilkinson dismissed the claimant’s third grievance. She says in paragraph 46 of her witness statement that, “It was clearly against Rotherham, and therefore the Trust could not investigate this grievance as this was against another Trust. The extent of our partnership with Rotherham was clearly governed by the CDC contract which they have served notice in respect of its termination, which was entirely within their legal rights to do so.” She says in paragraph 47 of her witness statement that she took this view after seeking HR advice from Maria Jessop. The claimant was given a right of appeal against this outcome which she did not exercise. Linda Wilkinson accepted in evidence that this advice was incorrect.

[300]The claimant met with Linda Wilkinson and Maria Jessop on 16 December 2020 to discuss the reasonable adjustments grievance. A brief note of the meeting is at page 3552. It is there recorded that the claimant did not have any additional points to make over and above those raised in the letter which she had sent at pages 2446 to 2449. Maria Jessop recommended that Lorna Byrne conduct the investigation. She is an investigator independent of the first respondent.

[301]On 17 December 2020, the regular line management meeting was held between the claimant and Dr Whittaker (pages 3356-3358). The claimant 10.5 Reserved judgment with reasons – rule 61 53 March 2017 informed Dr Whittaker that she had raised grievances about the banding and reasonable adjustments issue. Her viva was now booked for 14 January 2021. She had not seen any re-deployment opportunities of interest to her. Her clinical load was now 14 clients. It is recorded that she had contacted or seen everyone. She had spoken to one client. Two had declined further work in respect of which she was engaged in report writing. The other 11 had started their assessments.

[302]Also on 17 December 2020, the claimant underwent a further occupational health assessment. This is at page 2505. She was assessed by Vivien Thompson, a registered general nurse. She said that, “Catherine reports she is experiencing an increase in her symptoms of anxiety and depression which she cites to be triggered by issues at work. She describes the issues she encounters on a daily basis at work, some of which I understand you are aware. Catherine tells me most of the adjustments recommended in the report have been implemented at work but the few that haven’t continue to impact negatively on her in the workplace. She states she struggles to juggle managing her workload simultaneously whilst searching for another job and maintain her self-help strategies to assist her keeping well and stabilise her psychological symptoms. Catherine told me she is aware of her current role changing and aware of your employee assist programme contact details to access support should she require it.” Vivien Thompson recommenced that the claimant would benefit from counselling support. She said that, “The ultimate solution to this issue is likely to be management and not medically orientated. The symptoms that Catherine reports would appear to be to be directly attributable to work related issues.” She recommended a stress risk assessment be carried out. She also recommended considering offering flexible working patterns and incorporating “micro breaks” into the claimant’s working day. She said that the claimant was currently able to undertake her usual hours and duties.

[303]On 18 December 2020, the claimant took two weeks annual leave. Following the expiry of that two weeks’ period, she started a further sickness absence. She did not return to work.

[304]The claimant’s formal re-deployment period commenced on 1 January 2021. The claimant forwarded a fit note declaring her unfit to work until 21 January 2021 (page 2564). This was because of stress at work. The claimant requested that a meeting arranged with Lorna Byrne on 13 January 2021 be cancelled. The cancellation request is in the email at page 2566 and dated 10 January 2021.

[305]Peter Tyerman had made a third Freedom of Information Act request to the CCG on 30 November 2020. They replied to this on 29 December 2020 (pages 2530 and 2531). Peter Tyerman’s request for information with which the reply is concerned was about the removal of clinical psychology input from the CDC and the question of NICE compliance. In reply, Rotherham CCG said that, “TRFT had provided NHS Rotherham CCG with a robust rationale for this decision based on the quality of the service received. TRFT, as the commissioned provider of service, has assured NHS Rotherham CCG that there is no intention to permanently remove clinical psychology input from the under-5 diagnostic pathway and new arrangements actively being sought. Once this is in place the CDC will be 10.5 Reserved judgment with reasons – rule 61 54 March 2017 fully NICE compliant. In the interim the CDC is able to continue undertaking autism assessments, as the team use a prescriptive assessment tool.”

[306]The claimant says in paragraph 152 of her witness statement that, “[This] correspondence with the CCG led me to reasonably believe that the termination of the contract was a discriminatory act – an attempt to find a credible reason to terminate my contract because I am disabled or because of something arising in consequence of disability, or because I had insisted on having reasonable adjustments and complained when they were not met. I wrote on 30 December 2020 to Linda Wilkinson, Maria Jessop, Pat Pepper and Sara [Whittaker] saying that it altered the position [with regards to the removal of psychology services from the CDC] and sent them the copy of the FOI response from the CCG. (2536).” On 26 January 2021, Vicky Whitfield said that the termination of the contract stands and therefore the claimant’s position “remains unchanged.” We refer to the email from Vicky Whitfield to this effect addressed to Sara Whittaker and Johanna Wilman at pages 2533 and 2534.

[307]On 25 January 2021 Johanna Wilman emailed the claimant (pages 2631 and 2632). She asked her whether she had returned to work. We know of course that she had not and did not return following the end of her annual leave in early January 2021. Johanna Wilman observed that “I cannot see any activity on the SYSTM1 CDC unit and you have a number of urgent tasks outstanding from December. I wondered if you are aware of them?” She asked that the claimant action the tasks and update the staff working clinically. Dr Whittaker emailed Johanna Wilman on 25 January 2021 to inform her that the claimant was signed off sick.

[308]On 21 January 2021 the claimant had written to Maria Jessop to ask her for an update about re-deployment. Her email is at page 2624. Maria Jessop confirmed (also at page 2624) that the claimant had been placed on the “at risk register” on 24 December 2020 and she would remain on the register until 31 March 2021. The claimant was informed that, “in the meantime a meeting will be scheduled with an executive director and another HR BP [HR business partner] which she will be invited to. The impartial panel will review the change process to date, whereby notice of compulsory redundancy may be given which will be 12 weeks in lieu of notice from 31 March 2021.”

[309]The claimant underwent a further occupational health consultation on 26 January 2021. The report following that consultation is at pages 2635 and 2636. This was prepared by Dr Magdalena Janas, occupational physician. Dr Janas reported that the claimant felt that her condition would worsen should she return to a work environment. The claimant “cited a combination of barriers such as the inconsistency in work adjustment implementation, work culture, high workload and discrimination.” Dr Janas opined that, “the clinical history indicates that Miss Tyerman’s mental well being remains fragile. Clearly, she indicated an ongoing degree of embitterment towards the employer and her workplace which may hinder her return to work process.”

[310]Dr Janas said that the claimant was unfit for work. She recommended that, when fit for work, management look at implementing outstanding workplace adjustments. Although fit to attend work meetings, Dr Janas recommended 10.5 Reserved judgment with reasons – rule 61 55 March 2017 that these be postponed for a period of around four weeks with a review thereafter. However, she said that “In the meantime, it would be helpful to maintain a meaningful dialogue with Miss Tyerman and to offer that the work procedure can be conducted by a different manager who she has better relationships with.” She did not consider there to be any medical intervention “that will likely remedy her situation.” In light of this report, all pending grievance meetings were cancelled. They were to be re-arranged in due course. (It was upon this day (26 January 2021) that Linda Wilkinson forwarded to the claimant the outcome of her grievance regarding the removal of her post at the CDC).

[311]On 26 January 2021, Dr Whittaker wrote to the claimant (page 2595). She said that the “organisational change consultation period” had concluded. While the first respondent was seeking alternative roles for her, none had yet become available.

[312]On the same day, happily for the claimant, her viva was passed by her university board. That meant that she was eligible for HCPC registration. However, as she says in paragraph 155 of her witness statement, she was at that stage “so unwell … that I could not immediately do this.”

[313]The claimant says in paragraph 156 of her witness statement that, “Around this time, I also asked if I could retain my ATW funded equipment so that I could take it with me to the next job because there were no suitable alternative roles being referred to me.” She was informed that this may be possible if the second respondent’s contribution was reimbursed. However, the laptop could not be removed. A suggestion was made that the claimant consider downloading the software on to another device (page 2621).

[314]On 28 January 2021, Linda Wilkinson wrote to the claimant (pages 2654 and 2655). She confirmed the cancellation of the interview with Lorna Byrne. It was proposed that Lorna Byrne continue her investigations in her absence. It was also proposed that the claimant be interviewed as and when confirmation was received that she was well enough to participate in the process.

[315]Pursuant to this proposal, Lorna Byrne interviewed Sara Whittaker on 29 January 2021 (pages 2663 to 2676).

[316]Dr Whittaker confirmed in this interview that at the time of her recruitment, she knew only of the claimant’s dyslexia and the fact that she was yet to complete her thesis and therefore was not a qualified psychologist. The interview was adjourned and recommenced on 4 February 2021 (pages 2673 to 2676).

[317]In evidence given under cross-examination, Dr Whittaker accepted that she had in fact been sent the occupational health assessment through the internal system. However, she had not sought to access the internal system to look at it. (The internal system is known as “OHIO”). (The Tribunal surmises that Dr Whittaker is here talking about the occupational health report of 20 December 2019 which identifies not only dyslexia but also CAPD and dyspraxia).

[318]On 27 January 2021 NHS Rotherham CCG replied to another Freedom of Information Act request raised by Peter Tyerman. This informed him that NHS Rotherham CCG was informed of the need to source alternative 10.5 Reserved judgment with reasons – rule 61 56 March 2017 psychology input into the CDC in early December 2020. This corroborates the Tribunal’s findings that no firm plan was in place for the replacement of the clinical psychology input when notice of termination was given by the second respondent at the end of September 2020.

[319]On 1 February 2021 Johanna Wilman emailed Dr Whittaker (page 2645). She was concerned about the quality of the claimant’s work. She said, “We looked through Catherine’s caseload last week and I’m afraid it is not good. Notes missing, reports outstanding and in cases we aren’t even sure the child and family turned up. The record has turned blue on the ledger but there is nothing in the notes to indicate that she saw the child, they came etc.”

[320]On 4 February 2021, Mrs Wilkinson wrote to the claimant (page 2706). She asked her about how best to stay in touch regarding “the updates that are available.” Linda Wilkinson had in mind by this the recent occupational health report which suggested communication via email. The claimant replied on 4 February 2021 to confirm that email correspondence was the best way to communicate for the time being (page 2707). The claimant said that by a subject access request she had “found out that both yourselves and Rotherham were aware of the removal of my post at least one month before the consultation meeting. This has led to me feeling it is difficult to trust yourselves, or Rotherham, as the situation was handled dishonestly. I’m seeking support from my doctor, union and workplace wellbeing over how best to resolve this, but this may not be simple. I am currently focusing on my wellbeing.” There is of course some merit in the claimant’s observation as the respondents were aware that notice to terminate the contract had been given over a month before the claimant was informed.

[321]On 11 February 2021, Mr Easthope wrote to the claimant (page 2717). The claimant was invited to attend a hearing under the respondent’s redundancy policy to be held on 15 March 2021. The claimant was told that the meeting would be chaired by him supported by a HR business partner. Dr Whittaker was to present the first respondent’s management case supported by Maria Jessop. The claimant was told that she was entitled to be accompanied by a Trust colleague or union representative.

[322]The management statement of case was sent to the claimant on 15 February 2021 (page 3564). The management statement of case and appendices is in the bundle commencing at page 2726. Dr Whittaker set out (at pages 2727 to 2730) what we consider to be a reasonably accurate summary of events. She confirmed that the claimant had no entitlement to a redundancy payment because of the gap in her employment record between 2 February 2020 and 21 April 2020. This had been confirmed by Matthew Ashton, pensions manager on 12 January 2021 (page 3196). The claimant confirmed in evidence that she had received the management statement of case.

[323]On 17 February 2021, Linda Wilkinson provided the outcome to the pay band in grievance. This is at pages 2800 to 2803. Linda Wilkinson considered that the claimant was not working outside of her agenda for change band 6 role. This was because she was receiving weekly clinical supervision and management supervision. Further, she had not qualified or registered with the HCPC and accepted the band 6 role upon that basis. 10.5 Reserved judgment with reasons – rule 61 57 March 2017 Linda Wilkinson said that she had spoken to her clinical supervisors who assured her that she was working in line with a band 6 trainee psychologist’s role and needed regular support. Her grievance was therefore not upheld. The claimant was afforded a right of appeal against Mrs Wilkinson’s decision. The claimant did not exercise her right of appeal.

[324]On 7 March 2021, the claimant emailed Linda Wilkinson. She said that she did not feel it medically advisable to attend the meeting schedule for 15 March 2021. The email is at page 2836.

[325]Pat Pepper confirmed that neither she nor the claimant would be attending the meeting.

[326]The hearing in fact took place as planned on 15 March 2021. It was attended by Dr Whittaker, Maria Jessop and HR support for Mr Easthope.

[327]Mr Easthope was concerned about the possible application of the Transfer of Undertakings (Protection of Employment) Regulations 2006. Mr Easthope explained his concerns in paragraph 15 of his witness statement. There he says, “I have some experience in dealing with TUPE matters and … understand that if a service transfers to a new provider or is taken back in house, TUPE can operate to transfer the employment of employees working in that service to the next provider.” He goes on to say that Dr Whittaker and Maria Jessop had said that the claimant had raised the issue herself. Mr Easthope understood that the second respondent was saying that TUPE did not apply because they would not be continuing with the psychology service being provided to them by the first respondent. This was being questioned by the claimant. Mr Easthope considered that he needed to have a definitive answer to that question before he could make a decision.

[328]He was also concerned about the redeployment period. He says in paragraph 19 of his witness statement that, “Miss Tyerman had been informed in November 2020 – before the redeployment policy had changed – that her formal re-deployment period would start on 1 January 2021 and last for 12 weeks, as per the policy at the time she had been informed of this. The redeployment policy then changed to four months, with effect from 16 December 2020. Although the Trust had been informally looking for alternative roles since November 2020, I didn’t feel that it was right to end Miss Tyerman’s employment without giving her four months on the redeployment register on a formal basis, as per the policy in place at the time. The re-deployment period would extend to the end of April 2021 subject to the TUPE position. If Miss Tyerman’s contract TUPE transferred to Rotherham, her employment with the Trust would end, as would the redeployment period.”

[329]Mr Easthope was also unclear as to whether the claimant wanted to attend the hearing and couldn’t because of her health, or simply didn’t want to attend. He says in paragraph 20 of his witness statement that, “I decided that if the panel needed to reconvene at the end of April, I would like up to date OH advice about Miss Tyerman’s fitness to attend a reconvened hearing.” Mr Easthope therefore wrote to the claimant to this effect on 31 March 2021 (pages 2939 to 2941). 10.5 Reserved judgment with reasons – rule 61 58 March 2017

[330]On 17 March 2021, Dr Whittaker completed a reference for a position which had been offered (subject to reference) to the claimant by Access to Children. (This is at pages 2927 to 2929).

[331]Dr Whittaker was asked to provide details of any current performance management issues. She replied that she was, “unable to comment on the below tick boxes due to absence from work.” The periods of absence from work were then listed. The “tick box” questions at page 2929 regarding professional boundaries, appropriate relations with professional bodies and other important issues were left blank.

[332]It was put to the claimant by Miss Nowell that Dr Whittaker was not “on the ground” working alongside the claimant at the CDC. It was suggested that Dr Whittaker did not wish to disadvantage the claimant by ticking “poor” or “average” to the boxes at page 2929. The claimant said that Dr Whittaker “could have commented on my clinical work”.

[333]In evidence given under cross-examination, Dr Whittaker said that she “didn’t feel I had sufficient information, I didn’t want to put anything negative.” It was suggested to Dr Whittaker by Mr Keen that this was an unhelpful approach and was to be contrasted with that adopted by Mr Jones. He prepared the reference (for a different prospective employer) that we see at page 3608. This was dated 25 May 2021.

[334]Dr Jones said in the reference that, “I have had the pleasure of providing nine sessions of clinical supervision to Catherine between 15 September 2020 and 15 December 2020. We have met for a further session on 6 April 2020 [presumably 2021]”. He goes on to say that, “During this time it was abundantly clear that Catherine cares deeply about meeting the needs of clients and wants to be able to provide a well thought out service for families.” He referred to the fact that she was “managing a caseload while knowing that, for reasons beyond her control, she would be leaving the role [in the CDC]. During this time, Catherine demonstrated empathy for the people she wanted to work with while also reflecting upon her own needs and experiences in what was an understandably difficult situation.”

[335]The claimant lost the job offer from Action for Children as a consequence of the reference that was provided by the first respondent.

[336]The claimant then underwent a further occupational health assessment. This was carried out by Julie Daughtrey, clinical operations manager, on 14 April 2021 (page 2959). She referred to the fact that the claimant had been absent from work since 5 February 2021. She opined that the claimant was fit for work. She went on to say that, “however she is unlikely to return whilst the perceived work related issues persist and the present work environment is likely to cause a deterioration in her mental well-being. Catherine has advised that she would be happy to engage in the processes that are outstanding (investigations/grievances) and ideally to facilitate this she would ask for this to be a written exercise rather than having to attend meetings which she finds distressing and again such attendances are likely to impact adversely on her mental health. In order to minimise the likelihood of Catherine’s employment having a negative impact upon her health and well-being, I recommend that a meeting is held to discuss the issues that she has identified and to perform a stress risk assessment. Any issues that are identified should be addressed where possible.” 10.5 Reserved judgment with reasons – rule 61 59 March 2017

[337]The next day, happily for the claimant, she was registered with the HCPC as a clinical psychologist. She was paid as a band 7 from that point.

[338]On 27 April 2021, Laura Byrne submitted her draft report to Maria Jessop (at page 3588). The draft itself is at pages 3589 to 3603.

[339]Maria Jessop enquired of the claimant how she would like to proceed with matters. The claimant said on 11 May 2021 (page 3019) that “The meeting can be face to face or over Teams as Lorna [Byrne] is independent, though I would ask is it solely with Lorna … I would also request that my partner … is also able to attend as my support.” Maria Jessop said in reply (page 3019) that Lorna Byrne had never met with an employee on her own previously as that is outside the first respondent’s policy and processes not to have HR support present. She also mentioned that it was outside the policy to have anyone but a union representative or work colleague present. She wondered about availing herself again of the services of Pat Pepper.

[340]In the event, the meeting was held attended by Laura Byrne, a HR advisor and Pat Pepper who accompanied the claimant. The meeting was held on 8 June 2021. The minutes are at pages 3072 to 3082.

[341]In the meantime, on 13 May 2021, Mr Easthope wrote to the claimant. His letter is at pages 3042 and 3043. He attached the revised management statement of case at pages 3044 to 3050. The update dealt with the issue of re-deployment and that no opportunities had been identified.

[342]In evidence given under cross-examination, the claimant accepted that there were very few posts working with children within the first respondent. The Sheffield Children’s Hospital NHS Trust holds most of that kind of post in the area

[343]A post was advertised for a band 7 clinical psychologist on 19 March 2021. This is set out at pages 2849 and 2850. The claimant accepted that this was of little interest to her. Firstly, it did not involve working with children and secondly was only 0.2 FTE.

[344]Linda Wilkinson lists the positions shared with the claimant as part of the redeployment exercise. One of these is the one put to the claimant by Miss Nowell in cross-examination to which we have just referred (at page 2849).

[345]We shall not set out the eight positions to which Mrs Wilkinson refers here. They are clearly referred to in paragraph 56 of Linda Wilkinson’s witness statement. One of them is a band 7 clinical psychologist post dealing with eating disorders. The claimant initially said that she was not interested in this but then changed her mind. Linda Wilkinson put the claimant in touch with the relevant recruitment manager. However, this was a role dealing with young adults and in the event was not pursued by the claimant. The claimant confirmed that she had not applied for any of the roles referred to by Linda Wilkinson in paragraph 56 of her witness statement. Linda Wilkinson denies (in paragraph 57) that she notified others (externally or internally) of the claimant’s needs for reasonable adjustments or of her disabilities. We accept her evidence upon this aspect of matters. We have no note of this being challenged in cross examination and there is no rebuttal evidence in any case. 10.5 Reserved judgment with reasons – rule 61 60 March 2017

[346]As we have said, on 8 June 2021 the claimant met with Lorna Byrne to discuss the reasonable adjustments grievance. An offer had been made for the meeting to take place a few weeks earlier on 25 May 2021. The claimant had declined that offer upon the basis that she was due to get married in the week of 24 May 2021. Minutes of the meeting of 8 June 2021 are at pages 3072 to 3082.

[347]The outcome was confirmed in writing on 10 August 2021 (pages 3250 to 3276). It was recorded that Lorna Byrne had interviewed Dr Whittaker (as we have seen (on 29 January and 4 February 2021), Sahra Garuf on 4 March 2021 and then the claimant on 8 June 2021.

[348]Lorna Byrne reached the following conclusions: 348.1. That there was some initial confusion on Dr Whittaker’s part in assuming that Access to Work would order the equipment. As soon as it was clear that this was the first respondent’s responsibility, she negotiated with the second respondent to procure the necessary equipment. 348.2. The respondents provided a reasonable explanation as to why two of the adjustments identified on the tracker were not provided. While a permanent private office was not possible, Dr Whittaker made every effort to find a temporary solution regarding suitable office space and storage solutions. Lorna Byrne concluded that it was difficult to identify what more could reasonably have been done. 348.3. She also concluded that the recording of the sickness absence could not be altered under the respondent’s attendance policy. However, that policy allows for managerial discretion to recognise and acknowledge disability related absences. 348.4. It was acknowledged that the occupational health report (at page 928) did not include the full detail of disabilities disclosed by the claimant in her appointment (as recorded in the notes at pages 930 to 933). It was noted by Lorna Byrne that Dr Whittaker was engaged in communication with the claimant who had not told her of anything other than the dyslexia. 348.5. It was noted that no evidence was provided that a stress risk assessment or wellness recovery action plan was in place as part of the claimant’s return to work as recommended by occupational health in July 2020. That said, Lorna Byrne found that arrangements were in place to meet with the claimant regularly and monitor her progress. This included meetings to update the adjustments tracker.

[349]Lorna Byrne concluded that there was no evidence of failings by the first respondent to meet reasonable adjustments. She acknowledged that there were complications and some delays in managing the process attributable to the claimant being employed by the first respondent but based in office premises belonging to the second respondent. She said that, “A number of learning points and areas for improving processes had been identified. The commissioning manager may wish to consider the following recommendations going forward.” These were clearly defining roles and responsibilities, the provision of additional training or guidance for managers on managing disability and assessing reasonable adjustments, 10.5 Reserved judgment with reasons – rule 61 61 March 2017 planning implementation and timescales. There was need to raise awareness of the role of Access to Work and identify sources especially support and advice as appropriate.

[350]The claimant was afforded a right of appeal (page 3282). She did not exercise that right.

[351]On 30 June 2021, the claimant was informed by email that the reconvened redundancy hearing was to take place on 29 July 2021 (page 3134). This proceeded as scheduled. The claimant was dismissed upon the grounds of redundancy with immediate effect. She was paid a sum in lieu of notice.

[352]Mr Easthope wrote to the claimant to confirm the position on 2 August 2021. He recorded that the claimant had attended the meeting accompanied by Pat Pepper. Sara Whittaker had presented the management statement of case. She had HR support as did Mr Easthope.

[353]Mr Easthope was satisfied that TUPE had no application to the case. No re-deployment opportunities having been identified, the claimant was redundant. In evidence under cross-examination, Mr Easthope confirmed that TUPE did not apply as the clinical psychology being provided effectively by the claimant were not transferring back in house or, for that matter, being outsourced elsewhere. As Mr Easthope put it, “they [the second respondent] weren’t going to recommission the same service.”

[354]This concludes our findings of fact. The issues in the case

[355]We now turn to a consideration of the issues in the case. We shall then set out an analysis of the relevant law. After doing so, we shall set out our conclusions upon the issues by applying the relevant law to the facts as found.

[356]In our discussions leading to our conclusions, we shall also consider counsel’s submissions. The Tribunal has been presented with very helpful written and oral submissions from counsel. We shall not set the written submissions out verbatim. To do so would be to significantly increase the length of what already is a long Judgment. The Tribunal received over 130 pages of closing submissions in total. These were supplemented by an authorities’ bundle containing 22 case authorities. Mr Keen submitted an additional two authorities ahead of his submissions. We shall however attempt to summarise each party’s position as set out in their submissions when we go on to discuss the matter and reach our conclusions on the issues.

[357]When we consider the claimant’s case upon reasonable adjustments, the Tribunal has been greatly assisted by the adjustments table prepared by Miss Nowell. Mr Keen had helpfully added a column to this document incorporating the claimant’s comments.

[358]We shall set out the agreed list of issues. The paragraph numbers in the brackets are references to the claimant’s amended claim form at pages 182 to 205 of the bundle: 10.5 Reserved judgment with reasons – rule 61 62 March 2017

[359]Disability 359.1. The respondents concede that the claimant is disabled within the meaning of section 6 of the Equality Act 2010. However, when did the respondents know or ought to have known that the claimant suffered from each of the following disabilities:(a) Dyslexia;

(b) Dyspraxia;

(d) Central Auditory Processing Disorder;

(e) Complex PTSD;

(f) Anxiety disorder, stress and depression. Second respondent 359.2. Was the second respondent the principal for the purposes of section 41 or 109 to 112 of the Equality Act 2010 (EA)? The second respondent accepts it was a principal for the purposes of section 41 up until 31 March 2021. Direct discrimination/harassment (in the alternative) 359.3. Did the first respondent treat the claimant less favourably than it would have treated a hypothetical non-disabled comparator in the following ways: whether she still wanted her role with HR (paras 19, 30, 31 and (c) presuming the claimant has not provided the operational quality/competency required of a clinical psychologist, soliciting (d) refusing to support the claimant in raising NICE guidance issues regarding the provision of psychology services at the CDC (para 44); CDC, placing the claimant at risk of redundancy; not seeking her redeployment and/or not including her in any service provision

(g) not dealing with the claimant’s grievance regarding the removal of psychology from the CDC in accordance with the first respondent’s grievance procedures (para 40);

(h) when dismissing the claimant for the alleged reason of redundancy; 10.5 Reserved judgment with reasons – rule 61 63 March 2017

(i) as a result of not paying the claimant a redundancy payment. 359.4. Did the second respondent treat the claimant less favourably than it would have treated a hypothetical non-disabled comparator in the following ways: whether she still wanted her role with HR (paras 19, 30, 31 and (b) altering or attempting to alter the claimant’s job role (para 27); (c) Johanna Wilman’s negative treatment towards the claimant and complaints she made about the claimant (para 35); (d) presuming that the claimant has not provided the operational quality/competence required of a clinical psychologist, soliciting CDC, placing the claimant at risk of redundancy, not seeking her re-deployment and/or not including her in any service provision services at the CDC (para 44); and 359.5. If the treatment was afforded, was it afforded because of disability? Discrimination arising from disability 359.6. Did the first respondent afford the claimant the following unfavourable treatment: whether she still wanted her role with HR (paras 19, 30 to 31 and (c) presuming that the claimant has not provided the operational quality/competence required of the clinical psychologist, soliciting (d) refusing to support the claimant in raising NICE guidance issues regarding the provision of psychology services at the CDC (para 44); CDC, placing the claimant at risk of redundancy, not seeking her re-deployment and/or not including her in any service provision 10.5 Reserved judgment with reasons – rule 61 64 March 2017 (g) not dealing with the claimant’s grievance regarding the removal of psychology from the CDC in accordance with the first respondent’s grievance procedures (para 40); (h) notifying potential departments with vacancies that it is prohibitive to consider the claimant as a candidate because of her need for reasonable adjustments and therefore her disabilities (para 42); (i) not permitting the claimant to have unpaid time off instead of breaking her NHS continuous service, which as a consequence means that she is no longer eligible to receive a redundancy payment (paras 14 and 47);

(j) requiring the claimant to work at the CDC rather than from home (paras 20 and 21);

(k) failing to provide a proper and/or providing an unfavourable reference (para 55A);

(l) dismissing the claimant for the alleged reason of redundancy;

(m) not paying the claimant a redundancy payment. 359.7. Did the second respondent afford the claimant the following unfavourable treatment: whether she still wanted her role with HR (paras 19, 30 to 31 and (c) Johanna Wilman’s negative treatment towards the claimant and complaints she made about the claimant that she felt harassed (para 35); (d) presuming that the claimant has not provided the operational quality/competency required of a clinical psychologist, soliciting CDC, placing the claimant at risk of redundancy, not seeking her re-deployment and/or not including her in any service provision (g) requiring the claimant to work at the CDC rather than from home (paras 20 and 21). 359.8. Was the “something” leading to the treatment in the previous paragraph above, inter alia: (a) requiring adjustments/auxiliary aids/physical adaptations to accommodate her disabilities; (b) the difficulties that disabled employees suffering from dyslexia, dyspraxia, CAPD and ADHD have to process, understand, 10.5 Reserved judgment with reasons – rule 61 65 March 2017 interpret and analyse information and data and that she could not work as fact or as accurately as other employees; (c) vulnerability to noise and other factors that could lead to sensory overload; (d) suffering fatigue, stress and anxiety symptoms. 359.9. Was the aim of the respondents’ treatment of the claimant a legitimate aim? 359.10. If so, was the treatment a proportionate means of achieving that aim? Victimisation 359.11. Did the claimant do a protected act when she informed the respondents of her disability and complained about the failure to make reasonable adjustments? The said protected acts are firstly under section 27(2)(c) [of the Equality Act 2010] telling the first respondent she was disabled with various medical conditions on 28 September 2019, 20 December 2019 and 23 April 2020. The said protected acts were imputed to the second respondent on the basis the first respondent would have notified it of the claimant’s medical conditions as it acquired knowledge from the claimant. Both respondents deny the above was or were a protected act or acts. Secondly, under section 27(2)(d) being the claimant’s grievance of 8 December 2019. The first respondent accepts that amounted to a protected act. 359.12. As a result of the claimant having done this protected act, did the respondents victimise the claimant by subjecting her to the treatment as set out in paragraphs [359].6 and [359].7 of this list of issues. Failure to make reasonable adjustments 359.13. Did the respondents fail to comply with their duty to make reasonable adjustments? The claimant contends that the respondents applied the following [provisions, criteria and practices] (‘PCPs’): (a) PCP One: A requirement that the claimant fulfil the full duties of her contractual role. (b) PCP Two: A requirement to use a desk/workstation; (c) PCP Three: A requirement for employees to hot-desk; (d) PCP Four: A requirement to work in an open plan office; (e) PCP Five: A requirement to work in the office for at least a few days a week; (f) PCP Six: A requirement for its employees to use laptops to perform their work or alternatively use its case management systems and software packages. 10.5 Reserved judgment with reasons – rule 61 66 March 2017 359.14. Did PCP One (work): place the claimant at a substantial disadvantage compared to persons who were not disabled because: (a) she found work more difficult because of her learning disabilities; (b) she found work more stressful because of her mental impairments; (c) she was not able to perform work as fast and as accurately as other employees; and (d) failing to fulfil the requirements of the role had the potential to exacerbate the symptoms that the claimant experienced as a result of her disability. 359.15. Did PCP Two (workstation): place the claimant at a substantial disadvantage because: (a) she found it more difficult and it took her longer time to adapt to different workstations because of her learning disabilities; (b) she found it more stressful because of mental impairments; (c) it was not possible for her to keep an organised work environment; and (d) failing to fulfil the requirements of the role had the potential to exacerbate the symptoms the claimant experienced as a result of her disability. 359.16. Did PCP Three (hot desking): place the claimant at a substantial disadvantage because: (a) it was harder for her to store the equipment she needed; (b) it was not possible for her to keep an organised work environment; (c) the adjustments that she needed to make her desk suitable (see PCP One) could not be made to her desk; and (d) failing to fulfil the requirements of the role had the potential to exacerbate the symptoms that the claimant experienced as a result of her disability. 359.17. Did PCP Four (open plan office): place the claimant at a substantial disadvantage because: (a) it was harder for the claimant to concentrate; (b) it was not possible to keep an organised work environment; (c) failing to fulfil the requirements of the role had the potential to exacerbate the symptoms that the claimant experienced as a result of her disability. 359.18. Did PCP Five (flexible working): place the claimant at a substantial disadvantage because: (a) she could not adapt her schedule to accommodate her fatigue and stress; 10.5 Reserved judgment with reasons – rule 61 67 March 2017 (b) failing to fulfil the requirements of the role had the potential to exacerbate the symptoms that the claimant experienced as a result of her disability. 359.19. Did PCP Six (laptop): place the claimant at a substantial disadvantage because: (a) the software did not include the specialist software she needed to help her read efficiently and to help her proof-read work more quickly; (b) she found it took longer for her to complete her work; (c) she found it more stressful because of her mental impairments; (d) failing to fulfil the requirements of the role had the potential to exacerbate the symptoms that the claimant experienced as a result of her disability. 359.20. In addition, did the first respondent fail to comply with its duty to make reasonable adjustments with the respect to the PCP of the application of its sickness absence policy. 359.21. Did this PCP (sickness absence policy) place the claimant at a substantial disadvantage because: (a) she was more likely to have to take more sickness; (b) she is on reduced half pay and suffering a loss of earnings. Reasonable adjustments 359.22. The claimant contends that the following adjustments would have alleviated the disadvantages that the claimant suffered from as a result of each PCP. 359.23. (PCP One) (adjustments and work): (a) allowing her to take regular breaks; (b) setting out the requirements of her job role, remit and duties; (c) providing adequate daily supervision and clear instructions of what was expected of her; (d) providing her with agendas, minutes and action points for meetings; (e) giving her additional time to carry out her duties; (f) using written communications and instructions in an accessible font size and spacing and with colour overlays or in other formats; (g) providing a dedicated administrative support including proof reading; (h) providing a buddy or mentor. 10.5 Reserved judgment with reasons – rule 61 68 March 2017 359.24. (PCP Two) (adjustments and the workstation): (a) a separate screen/monitor for her laptop; (b) designated storage space for her equipment near the designated desk; (c) a voice recorder; (d) sufficient equipment such as batteries to support these devices. 359.25. (PCP Three) (adjustments and hot desking): (a) a dedicated desk at which she could work; (b) designated storage space for her equipment near her designated desk; (c) providing a mobile phone. 359.26. (PCP Four) (adjustments and the open plan office): (a) Noise cancelling headphones, Phonak Roger Focus Receivers. 359.27. (PCP Five) (adjustments and flexible working): (a) providing the claimant with a flexible working schedule so that she could work from home with flexible start and finish times; and/or (b) providing the claimant with a protocol so that she could understand what the parameters were for being allowed to work from home and when she had to work at the CDC. 359.28. (PCP Six) (adjustments and the laptop): (a) a suitable laptop compatible with the recommended software packages; (b) software such as Dragon, Read and Write, MindView, TextHelp, Read and Write Gold with web extension, Adobe Acrobat Pro PDF Converter; and (c) training to use the software. 359.29. (PCP Seven) (adjustments under sickness policy): (a) adapting the sickness monitoring to account for absences triggered by her disabilities; (b) not reducing her pay in accordance with the respondent’s sickness pay procedures. 359.30. Alternatively, were the adjustments above auxiliary aids and/or physical adaptations that the respondent failed to provide pursuant to section 20(5)? Limitation 359.31. Has the claimant presented her claims or part in time? 359.32. If not, does the Tribunal have jurisdiction to extend the time limit on the basis that it is just and equitable to do so? 10.5 Reserved judgment with reasons – rule 61 69 March 2017

[360]We shall now set out the relevant paragraph numbers from the claimant’s amended claim form referred to in the list of issues: (14) The claimant was due to commence employment with the first respondent on 2 March 2020. Following a joint decision made between the claimant and the first respondent this was postponed to 21 April 2020 to enable the claimant to progress her thesis for her MA qualification (which was necessary for her HCPC registration). The claimant was unable to complete her thesis by her original start date due to ill health attributed to her disabilities. The claimant initially asked for unpaid time off between 24 March 2020 and 10 April 2020 to complete her thesis. [Dr Whittaker] told the claimant that, to alleviate the claimant’s stress, she could start work at a later date and should instead concentrate on finishing her thesis. Thus the claimant agreed to defer her start date. The claimant did not understand, and was not told by the first respondent, that this would break the continuity in her NHS service for the purposes of determining her eligibility for benefits including redundancy payments as set out in Agenda for Change. (19) The feeling that her reasonable adjustments were being properly considered and implemented were short lived. The respondent was not ready for the claimant to start work on 21 April 2020 even though her start date had been delayed by more than a month (by mutual agreement). Subsequent correspondence received following a data subject access request show that Johanna Wilman and Dr Whittaker regarded the claimant’s requests for adjustments as, at best, inconvenient and that the claimant would just have to make do. Dr Whittaker later stated in correspondence that she had received advice from HR that the respondent should not have agreed a start date until all reasonable adjustments, physical and auxiliary aid adaptations were in place. (20) The claimant worked from home on her first day (21 April 2020) but on 22 April 2020 the claimant attended CDC. The claimant was shocked to find that none of the reasonable adjustments were in place. No induction had been organised and she was not properly introduced to her colleagues. She was shown to a desk by Johanna Wilman who said it was designated to her, but it was covered in storage items and did not have a chair, so she could not use it. She was informed that her laptop and mobile phone had been given to other members of the team. She was led to believe that it would be some months before her adjustments and adaptations, they were being funded by Access to Work would be sorted out, further, the Band 8a psychologist at CDC, Lisa Moss, had left on or around the same time and only gave the claimant a limited handover. Lisa Moss said that the claimant could email her if she had questions (but Lisa Moss never responded to further emails from the claimant). The day was, for want of a better expression a disaster. (21) Unsurprisingly, this triggered the claimant’s anxiety and CPTSD. That afternoon, the claimant wrote to Sara Whittaker in a panic informing her that the office was inappropriate and that none of the agreed adjustments/adaptations/aids were in place. The claimant made an immediate request for flexible working so that she could work at home for the working week. The claimant tried to work the next day but was admonished by Johanna Wilman for not attending the CDC, even though 10.5 Reserved judgment with reasons – rule 61 70 March 2017 she had been in that morning as agreed, and even though an induction had still not been formulated for her. None of the adjustments/adaptations/aids were in place. (27) On 12 June 2020, the claimant wrote to Dr Whittaker and raised concerns that the CDC service she had been hired to work in could properly oversee a band 7 role or fulfil her obligations to meet HCPC standards for assessing and diagnosing neurodivergent children. In particular she raised concerns that her role remained undefined and seemed to be altered in so far that Johanna Wilman had said that after the claimant finished her induction, they would determine her strengths and weaknesses with regards to clinical knowledge, that she would be working with a band 8 psychologist to supervise her and support her development. It seemed as if the job remit was being created after it had been filled by the claimant, who had accepted the role under a different disguise. The claimant stressed that they must define a pathway for her to achieve the band 8a role that it had been anticipated she would attain in a reasonable period of time when she had accepted the band 7 role. (30) After the meeting on 5 July 2020, the claimant raised concerns that she felt that she was having to negotiate for adjustments to be made. At this time, unbeknown to the claimant, Dr Whittaker and the first respondent’s HR were questioning whether the claimant still wanted the post. (31) The claimant met with Dr Whittaker on 9 July 2020 to discuss reasonable adjustments. The claimant was asked to provide a list of all the adaptations/adjustments that she required. The claimant was informed that the adaptations recommended by Access to Work had finally been ordered, including training; that she would have a designated desk and storage. She was told that working from home would be considered as and when needed. The claimant did not understand why working from home was a contentious issue and asked for an agreed protocol so that all the parties knew what the parameters were for working from home. In response Dr Whittaker asked the claimant whether she still wanted the job and told her that if she did not return to CDC there were not many other job options for working with children, the inference being the claimant could either take it or leave it. (35) On 4 September 2020, the claimant wrote to Dr Whittaker that she was concerned about Johanna Wilman’s attitude towards her, her health and the adjustments she required. The claimant had been required to work a long day without any lunchbreak, even when the respondent knew she required regular breaks for fatigue. She was also required to be in the office as much as possible, rather than related to her clinical duties on the premise that it would be unfair on others if she worked from home. The claimant is now aware that Johanna Wilman wrote emails that she felt she was being harassed by the claimant, and she believes is indicative of the negative stance Johanna Wilman took towards the claimant and her continuing to work at the CDC. (37) On 4 November 2020, the claimant was informed by the first respondent that the second respondent’s contract for the provision of clinical psychologists at CDC would end on 31 March 2021 and as a consequence, her role was at risk of redundancy. 10.5 Reserved judgment with reasons – rule 61 71 March 2017 (38) The claimant was the only affected employee. The claimant was informed that there would be a 35 day consultation period after which she would be placed on “at risk register” from 1 January 2021. The claimant was informed by Dr Whittaker that if there were no current suitable alternative vacancies, her employment would likely be terminated on 31 March 2021. (39) The National Institute for Health and Care Excellence (NICE) guidance specifically states that psychology should be a part of the pathway for providers like CDC and a decision not to follow it must be justified by the provider. The claimant’s father initially raised this with the second respondent who replied that it believed that CDC was NICE compliant without the provision of psychology services. The claimant’s father made a Freedom of Information (FOI) request to the Rotherham Clinical Commissioning Group (CCG) who funds the second respondent’s CDC, on 17 November 2020. On 14 December 2020 the CCG replied stating that they were not aware that the contract for the first respondent to provide psychology services was being terminated and that it expected there to be a proportionate plan for consulting on any proposed service change, which might include engaging with parents/carers, children and young children and with wider stakeholders. Further it expected to be consulted if a proposed change of service would result in a NICE recommendation not being followed. (40) On 15 December 2020, the claimant raised a grievance regarding the removal of psychology from the CDC. The claimant stated that she felt the decision to remove psychology was personal as indicated by the second respondent’s failure to follow the appropriate due processes or adhere to the NICE guidance. The claimant asked the first respondent investigate the rationale and timing of the decision made by the second respondent. The first respondent instantly dismissed the grievance as it was not about them. This was contrary to the first respondent’s grievance policy which states that it must handle the grievance or take it up with the second respondent on the employee’s behalf. (41) Following this the claimant’s father made a second FOI to the CCG on 30 November 2020, to which he received a further letter dated 29 December 2020 stating that the CCG had already been notified by the second respondent that notice has been given on the contract but that it had been informed that there was no intention to permanently remove clinical psychology input from the under-5 diagnostic pathway. The CCG also stated that it had been informed that the lack of clinical psychology input was due to “operational issues and alternative clinical psychology input is actively being sought” ie another service provider because it was not satisfied with the quality of psychology services being provided by the claimant. The claimant’s father made a third FOI to the CCG on 21 May 2021, in which he received a response back on 28 May 2021 stating that the second respondent is “in discussion with a provider of educational psychology”. The claimant is qualified to undertake this educational psychologist’s role but neither of the respondents have consulted with her about her transferring to this position at the CDC. (42) The correspondence with the CCG leads the claimant to believe that the termination of the contract was a discriminatory act – an attempt to find 10.5 Reserved judgment with reasons – rule 61 72 March 2017 a credible reason to terminate her contract because she is disabled or because of something arising in consequence of disability, or because she had insisted on having reasonable adjustments and complained when they were not made. Further, she believes the respondent has advised other departments with possible suitable vacancies where she can be redeployed, that the requirement for them to make reasonable adjustments for the claimant would be prohibitive to her being a viable candidate. (44) The upsetting correspondence revealed in the data subject access request includes:(a) Dr Whittaker recommending the claimant is re-deployed;

(b) Dr Whittaker and Johanna Wilman deciding not to tell the claimant immediately when they allegedly found that the contract to provide psychology services was ending at the CDC;

(d) Dr Whittaker’s comments to HR regarding the claimant’s competency to do a band 7 role due to her ADHD;

(e) Dr Whittaker’s refusal to support the claimant in raising NICE guidance issues regarding the provision of psychology services at the CDC. (47) Subsequently at the redundancy hearing conducted in the claimant’s absence, the first respondent has denied that the claimant is entitled to any redundancy because she does not have sufficient NHS continuous service. Had it not been for the short break in service in March 2020 which was provided in order to accommodate the claimant’s disabilities but without any warnings of the implications of a break in continuity, the claimant would have received a redundancy payment. (55A) On or around 23 April 2021, the claimant was informed that she has been unsuccessful in obtaining a child psychologist position with Action for Children because of an unfavourable and/or proper reference provided by the respondent. As a result she was informed verbally on 19 May 2021 and in writing on 24 May 2021 that this offer of employment was “being rescinded”.

[361]In his closing written submissions on behalf of the second respondent (in paragraph 3(1)), Mr Grundy said that paragraphs 30 and 31 of the claimant’s grounds of complaint (as cited above) were directed against the first respondent and not the second respondent. This submission appears to be well-founded.

[362]He also makes the reasonable point that paragraph 44(b) of the grounds of complaint (which concerns the alleged failure to tell the claimant immediately when Dr Whittaker and Johanna Wilman found out that the contract to provide psychology services was being ended) is brought as a separate claim (under paragraphs 359.3.(f), 359.4(f), 359.6(f) and 359.7(f))

[363]Mr Grundy says that the allegation in paragraph 27 of the grounds of claim is directed at the first respondent as it concerns the actions of Dr Whittaker. He submits that it is not clear how that may be a matter relied upon against the second respondent. That said, Mr Grundy acknowledges that the 10.5 Reserved judgment with reasons – rule 61 73 March 2017 claimant may be seeking to rely upon Johanna Wilman’s email to Dr Whittaker of 8 June 2020 (timed at 13:18) at pages 1422 and 1423 referred to in paragraphs 152 and 153 above.

[364]Upon the allegation against the second respondent (at paragraph 359.4(d) and 359.7(d) of the list of issues (of presuming that the claimant had not provided the operational quality/competence required of a clinical psychologist and soliciting evidence to undermine her competency (set out in paragraph 44 of the grounds of complaint)) Mr Grundy points out that only the allegation at paragraph 44(b) is directed at the second respondent. The remainder of the allegations all appear to be directed at the first respondent. Further, the allegation at 44(b) appears in any case properly to be related to the complaint against the second respondent at paragraphs 359.4(f) and 359.7(f).

The relevant law

[365]We now turn to a consideration of the relevant law.

[366]All of the claimant’s complaints summarised in paragraph 12 and 13 arise under the Equality Act 2010. By section 136 of the 2010 Act, it is for the claimant to prove facts from which the Tribunal could decide that an unlawful act of discrimination or harassment has taken place. Should she do so, then the burden of proof shifts to the respondent to prove a nondiscriminatory explanation. The two-stage shifting burden of proof applies to all of the claimant’s claims.

[367]It is therefore for the claimant to prove, on the balance of probabilities, facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the respondents have committed an act of discrimination or harassment. If the claimant does not prove such facts, then the claim will fail. Where the claimant has proved facts from which inferences could be drawn that the respondents have discriminated upon a protected ground, then the burden of proof moves to the respondents. There is then a burden upon them to prove that they did not commit or should not be treated as having committed the acts in question. This entails the respondents showing on the balance of probabilities that in no sense was the treatment of the claimant on the protected ground.

[368]There is a burden of proof upon the claimant to prove that the alleged discriminatory treatment actually happened. It is not sufficient for the complainant simply to make assertions that it has.

[369]The claimant’s complaints against the first respondent are brought against that respondent in their capacity as the claimant’s employer. The complaint of direct discrimination is therefore brought under sections 13 when read with section 39(2). The complaint of harassment is brought pursuant to section 26 when read in conjunction with section 40 of the 2010 Act. The complaint of unfavourable treatment for something arising in consequence of disability is brought pursuant to section 15 when read in conjunction with section 39(2). The complaint of victimisation is brought pursuant to section 27 when read in conjunction with section 39(4). The complaint of a failure to make reasonable adjustments is brought pursuant to sections 20 and 21 when read in conjunction with section 39(5). 10.5 Reserved judgment with reasons – rule 61 74 March 2017

[370]The complaints against the second respondent arise, as we have said, out of the claimant’s status as a contract worker. Accordingly, while the prohibited conduct in sections 13, 15, 20 and 21, 26 and 27 arises out of the same statutory provisions as relied upon by the claimant against the first respondent, the cause of action against the second respondent arises pursuant to sections 41(1), (2), (3) and (4) of the 2010 Act.

[371]The claimant also pursues a complaint against the second respondent pursuant to the provisions in section 109 to 112 of the 2010 Act. By section 109(2), anything done by an agent for a principal with the authority of the principal must be treated as also done by the principal. It is alleged by the claimant that the second respondent is liable for discriminatory acts committed by the first respondent under the contract of employment. The issue which therefore arises in this case is whether the first respondent was the agent of the second respondent when they (the first respondent) decided to employ the claimant. it is also the claimant’s contention that the second respondent has a liability pursued to section 112 of the 2010 Act for knowingly helping the first respondent to do acts which contravened the relevant provisions of the 2010 Act.

[372]Upon the direct discrimination complaint, by section 13 of the 2010 Act a person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. The relevant protected characteristic in this case is of course disability.

[373]Upon a comparison of cases for the purposes of section 13 of the 2010 Act, there must be no material difference between the circumstances relating to each case. Therefore, in order to claim direct discrimination under section 13, the claimant must have been treated less favourably than a comparator who is in the same, or not materially different, circumstances as the claimant.

[374]A successful discrimination claim depends on the Tribunal being satisfied that the claimant was treated less favourably than a comparator because of the relevant protected characteristic. It is for the Tribunal to decide as matter of fact what is less favourable. This is an objective test – the fact that a claimant believes that they have been treated less favourably does not of itself establish that there has been less favourable treatment.

[375]In the absence of a statutory comparator – that is to say, an actual comparator who is in materially the same circumstances as the claimant and who has not suffered the same treatment – the question of less favourable treatment may be determined by reference to how a hypothetical comparator would have been treated. However, there must be some evidential basis for this. It is not open to a complainant simply to make an assertion that somebody with a different protected characteristic would have been treated better. There must be evidence of others whose circumstances are not sufficiently similar to warrant them being treated as actual statutory comparators, but which is sufficiently relevant for inferences to be drawn from the way they have been treated.

[376]Essentially, upon a consideration of the direct discrimination complaints, it is for the Tribunal to decide factually upon the treatment received by the claimant, whether that treatment was or would have been less favourable than that of others who do not share the complainant’s protected 10.5 Reserved judgment with reasons – rule 61 75 March 2017 characteristic and the reason for that treatment. Then, we must ask whether the complainant was treated less favourably because of a protected characteristic?

[377]The key issue is the reason why the complainant was treated as she was. A complaint of direct discrimination will only succeed where the Tribunal finds that the protected characteristic was the reason for the claimant’s less favourable treatment. This may involve a consideration of the mental processes, conscious or subconscious, of the alleged discriminator to discover what facts operated on their mind. The protected characteristic need not be the only reason for the less favourable treatment provided it is an effective cause.

[378]By section 23(2) the circumstances relating to a case for comparison purposes includes a person’s abilities where the protected characteristic is disability. In Stockton on Tees Borough Council v Aylott

[2010] ICR 1278

, Mummary LJ in the Court of Appeal said the following about the hypothetical comparator in a disability case (at 79): “The Employment Tribunal selected a hypothetical comparator. As the identity of the comparator for direct discrimination claim must focus upon a person who does not have the particular disability, that disability must be omitted from the circumstances of the comparator. In other respects, the circumstances of the claimant and of the comparator must be the same or not materially different. The claimant's abilities … must be attributed to the comparator. Although the comparator is not required to be a clone of the claimant, failure by the Employment Tribunal to attribute other relevant circumstances to the comparator may be an error of law on the part of the Tribunal, see, for example, the judgment … in High Quality Lifestyles Ltd v Watts

[2006] IRLR 850

.”

[379]In Watts, the complainant was a support worker in a residential home for people with autistic spectrum disorders and learning difficulties. He was dismissed after he disclosed that he was HIV positive and the employer took the view that the risk of onward transmission was too great because there had been incidents when staff were bitten. The Employment Appeal Tribunal overruled an Employment Tribunal’s decision that this was direct disability discrimination. The EAT’s ruling was upon the basis that there was no evidence that a hypothetical comparator who had some attributes other than being HIV positive but which carried the same risk to others would not have been dismissed. The Employment Appeal Tribunal’s reasoning in Watts on the direct discrimination issue places the focus on finding comparable circumstances in order to make a valid comparison.

[380]A similar issue arose in Owen v Amec Foster Wheeler Energy Limited and Another

[2019] EWCA Civ 822

. In that case, the complainant failed a medical assessment as to his suitability to be deployed oversees. The Court of Appeal held that the Employment Tribunal was entitled to hold that a non-disabled comparator holding a different high medical risk on assignment would have been treated in the same way. Hence, the complainant’s direct disability discrimination claim failed.

[381]By section 39(2) an employer(a) (A) must not discriminate against an employee of A’s

(b) (B) by dismissing B or subjecting B to any of the detriment. By section 41 of the 2010 Act, a principal must not discriminate against a 10.5 Reserved judgment with reasons – rule 61 76 March 2017 contract worker by subjecting the contract worker to any detriment and (amongst other things) by not allowing the contract worker to do or continue to do the work.

[382]The word “detriment” is not defined by the 2010 Act. The Equality and Human Rights Commission’s Code of Practice says that a detriment can take many forms and is anything which the complainant concerned might reasonably consider to be to their disadvantage.

[383]By section 212(1) of the 2010 Act, the concept of a detriment does not include conduct amounting to harassment. A complainant cannot therefore succeed upon a complaint of direct discrimination and harassment upon the same cause of action. However, it is open to a complainant to argue them in the alternative, as the claimant has done here.

[384]By section 26 of the 2010 Act, a person(a) (A) harasses another

(b) (B) if A engages in unwanted conduct related to a relevant protected characteristic. That conduct must have the purpose or effect of violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

[385]By section 40 of the 2010 Act, an employer(a) (A) must not in relation to employment by A, harass a person

(b) (B) who is an employee of A’s. By section 41, a principal must not in relation to contract work harass a contract worker.

[386]By section 26(4), in deciding whether conduct has the effect of violating B’s dignity or creating an intimidating etc environment for B, the Tribunal must consider B’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.

[387]There are three essential elements of a harassment claim. Firstly, it must be shown that there was unwanted conduct. Secondly, the conduct needs to have the prescribed purpose or effect. Thirdly, the conduct must relate to a relevant protected characteristic.

[388]The EHRC’s Employment Code notes that, “unwanted conduct can include a wide range of behaviour, including spoken or written words or abuse, imagery, graffiti, physical gestures, facial expressions, mimicry, jokes, pranks, acts affecting a person’s surroundings or other physical behaviour.” The conduct may be blatant such as for example overt bullying or more subtle (for example ignoring or marginalising an employee).

[389]The word “unwanted” is not defined in the act but is essentially the same as “unwelcome” or “uninvited”. This is confirmed by the EHRC’s Code (at paragraph 7.8). Whether the conduct is “unwanted” should largely be assessed subjectively from the employee’s point of view. The conduct does not have to be directed specifically at the complainant in order for it to be unwanted by them. The employee does not have to be present when the words or actions occur. There may still be unlawful harassment where the employee finds out about the impugned conduct later.

[390]The second limb of the statutory definition of harassment requires that the unwanted conduct in question has the purpose or effect of violating the complainant’s dignity or creating an intimidating etc environment for them. 10.5 Reserved judgment with reasons – rule 61 77 March 2017

[391]Conduct that is intended to have that effect will be unlawful even if it does not in fact have that effect.

[392]The test of whether the conduct in question had the effect of violating a person’s dignity or creating an intimidating etc environment for them has subjective and objective elements. The subjective part involves the Tribunal looking at the effect that the conduct of the alleged harasser has upon the complainant. The objective part requires the Tribunal to ask itself whether it was reasonable for the complainant to claim to consider that the conduct had the effect. The complainant must therefore actually have felt or perceived their dignity to have been violated or an adverse environment to have been created. The Tribunal will then go on to consider whether it was reasonable for them to have those perceptions. Plainly, if the complainant does not perceive their dignity to have been violated or an adverse environment created then the conduct cannot be found to have 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 intimidating etc environment for them then it should not be found to have done so.

[393]The other relevant circumstances of the case should be taken into account. The EHRC Employment Code notes that relevant circumstances may include those of the complainant, such as their health, including mental health and previous experience of harassment. It can also include the environment in which the conduct takes place.

[394]In order to constitute unlawful harassment under section 26(1) of the 2010 Act, the unwanted conduct must be related to a relevant protected characteristic. However offensive the conduct, it will not constitute harassment unless it is so related. Whether or not the conduct is related to the characteristic in question is a matter for the appreciation of the Tribunal, making a finding of fact and drawing upon the evidence before it.

[395]Complaints of harassment do not depend upon the claimant establishing less favourable treatment in comparison to another (as they need to show upon complaints of direct discrimination). However the shifting burden of proof in section 136 will still be of use in establishing that the unwanted conduct in question was related to a relevant protected characteristic. Where the conduct complained of is clearly related to a protected characteristic – for example, where a complainant has been subjected to verbal abuse in race-specific terms – then the Employment Tribunal will not need to revert to the shifting burden of proof rules at all. By contrast, where the conduct complained of is ostensibly indiscriminate then the shift in burden of proof may be applicable to establish whether or not the reason for the treatment was the complainant’s relevant protected characteristic.

[396]In a harassment complaint, the complainant will also need to establish on the balance of probabilities that they have been subjected to unwanted conduct which has the purpose or effect of violating their dignity or creating an intimidating etc environment for them together with some evidence to suggest that the conduct was related to the protected characteristic.

[397]By section 27 of the 2010 Act, a person(a) (A) victimises another person

(b) (B) if A subjects B to a detriment because B does a protected act or A believes that B has done or may do a protected act. 10.5 Reserved judgment with reasons – rule 61 78 March 2017

[398]For the purposes of section 27 a protected act includes doing “any other thing for the purposes of or in connection with the [2010] Act” or “making an allegation (whether or not express) that A or another person has contravened the [2010] Act.”

[399]By section 39(4) an employer must not victimise an employee of A’s (B) by dismissing B or subjecting B to any other detriment. The word “detriment” is not defined for the purposes of the 2010 Act but, as before, should be taken to mean something that a reasonable person would consider to be to their disadvantage.

[400]By section 41(3) a principal must not victimise a contract worker by subjecting them to any other detriment or not allowing them to do or continue to do work.

[401]To succeed in a claim of victimisation, the claimant must show that they were subjected to the detriment because they had done a protected act or because the employer believed that they had done or might do a protected act. The test is not precisely one of causation. The Tribunal must identify the real reason or the core reason for the treatment complained of. A “but for” test does not mean that the treatment was because of the protected acts: in other words, it is not enough for the complainant to argue that but for having raised a grievance, the detriment would not have occurred.

[402]This is because the protected act must have a significant influence upon the acts in question. The protected act need not be the only reason for the detrimental treatment for victimisation to be established. It is not necessary for the protected act to be the primary cause of a detriment, so long as it is a significant factor.

[403]As with a complaint of direct discrimination, the reason why a complainant was subjected to detriment will need to be inferred from the findings of fact. As a result, the shifting burden of proof in section 136 may have a role to play in a claim of victimisation as much as in a complaint of direct discrimination.

[404]It will be for the complainant to establish that they have done a protected act and then subjected to a detriment at the hands of the employer or the principal (in a contract worker case). It is unlikely that a Tribunal would regard the mere fact of a protected act and a detriment as sufficient to shift the burden of proof to the employer or principal. There would seem to be a need for some evidence from which the Tribunal infers a causal link between the protected act and the detriment.

[405]We now turn to a consideration of the principles in a complaint of unfavourable treatment for something arising in consequence of disability. This is a complaint brought under section 15 of the 2010 Act. This provides that a person(a) (A) discriminates against a disabled person

(b) (B) if A treats B unfavourably because of something arising in consequence of B’s disability and A cannot show that the treatment is a proportionate means of achieving a legitimate aim. This provision will not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the

[406]A claimant needs to establish that they have been unfavourably treated. The unfavourable treatment must then be shown to be because of a relevant 10.5 Reserved judgment with reasons – rule 61 79 March 2017 “something” and then that the relevant “something” arises in consequence of the disability.

[407]In Pnaiser v NHS England [2015] UK

EAT/137/15

guidance was given upon the correct approach to section 15 cases. The Tribunal must firstly identify whether there was unfavourable treatment and if so by whom.

[408]The Tribunal must then determine what caused the impugned treatment or what was the reason for it. The focus at this stage is on the reason in the mind of the decision makers. 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 a trivial) influence on the unfavourable treatment, and so amount to an effective reason for it.

[409]The Tribunal must then determine whether the reason for the unfavourable treatment is something which arises in consequence of the claimant’s disability. A loose causal link may be established by the complainant.

[410]The second stage of the causation test (that the thing causative of the treatment arose because of disability) involves an objective question and does not depend on the thought process of the alleged discriminator. The required state of mind is simply that the unfavourable treatment should be because of the relevant something. There is no requirement that the alleged discriminator also should have known that the relevant something arose from the disability.

[411]Should the complainant establish that they have been unfavourably treated for something arising in consequence of disability, then it is open to the respondent to justify that unfavourable treatment. The burden is upon the respondent, when seeking to run a justification defence, to show that the treatment of the complainant is a proportionate means of achieving a legitimate aim.

[412]The aim in question must be legitimate and unrelated to any discrimination based on any prohibited ground. The means or measure adopted to achieve the aim must be capable of so doing and must be proportionate. The objective of the measure must be sufficiently important to justify the limitation of a protected right. This involves a consideration of whether a less intrusive measure could have been used and balancing the severity of the measure’s effect upon the complainant against the extent that the measure will contribute to the achievement of the aim from the prospective of the employer. The test to be applied by the Tribunal is objective. The Tribunal has to make its own judgment as to whether the measure applied by the respondent is reasonably necessary as a proportionate means of achieving the aim in question.

[413]The Tribunal must evaluate the employer’s legitimate aim and not some other aim that the Tribunal may consider would have been preferable. Where there is no other way of achieving the identified aim, then the means will inevitably be proportionate. The employer must convince the Tribunal that there was a legitimate aim and that it was appropriate and reasonably necessary to adopt the means in question in order to achieve the aim. It must be shown that the means adopted actually contributed to the pursuit of the aim. 10.5 Reserved judgment with reasons – rule 61 80 March 2017

[414]The Equality and Human Rights Commission’s Employment Code sets out guidance on objective justification. The Code says that the aim pursued should be legal, should not be discriminatory in itself and must represent a real, objective consideration. As to proportionality, the Code notes that the measures adopted by the employer do 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.

[415]It is for the complainant to prove that they have been unfavourably treated by the employer or by the principal (in a contract worker case). It is also for the complainant to show that the relevant “something” arose as a consequence of their disability and that there are facts from which it could be inferred that the relevant something was the reason for the unfavourable treatment.

[416]It is for the respondent to the claim to show that they did not know about the disability. However, it is unlikely that section 136 of the 2010 Act could operate to shift of burden of proof without there being some facts to indicate that the employer knew that the complainant was disabled.

[417]In Pnaiser (above) consideration was given to the operation of section 136 in the context of a section 15 claim. Amongst other things, the Employment Appeal Tribunal upheld an Employment Tribunal’s decision that as the respondent to that claim had not put forward any justification defence the claim was bound to succeed.

[418]In Griffiths v Secretary of State for Work and Pensions

[2017] ICR 160

, CA, Elias LJ said, “An employer who dismisses a disabled employee without making a reasonable adjustment which would have enabled the employee to remain in employment – say, allowing him to work part time – will necessarily have infringed the duty to make reasonable adjustments, but in addition the act of dismissal will surely constitute an act of discrimination arising out of disability. The dismissal will be for a reason related to disability and if a potentially reasonable adjustment which might have allowed the employee to remain in employment has not been made, the dismissal will not be justified.”

[419]There are difficulties with conceiving of a case where it would be open to a Tribunal to find that an employer’s unfavourable treatment of the claimant because of something arising in consequence of their disability is justifiable as a proportionate means of achieving a legitimate aim if, at the same time, it is established that the employer could and should have made a reasonable adjustment to deal with the substantial disadvantage caused by the claimant’s disability. This view is supported by the EHRC in the Code which states (at paragraph 5.21) that, “If an employer has failed to make a reasonable adjustment which would have prevented or minimised the unfavourable treatment, it would be very difficult for them to show that the treatment was objectively justified.”

[420]This neatly leads on to a consideration of the law as it relates to reasonable adjustments. Employers are required to take reasonable steps to avoid a substantial disadvantage where a provision, criterion or practice applied to 10.5 Reserved judgment with reasons – rule 61 81 March 2017 a disabled person puts a disabled person at a substantial disadvantage because of the disability compared to those who are not disabled. A similar provision applies in the case of contract workers pursuant to section 41(4). The word “substantial” in this context means “more than minor or trivial”.

[421]The purpose of the comparison with people who are not disabled is to establish whether it is because of disability that the particular provision, criterion or practice disadvantages the disabled person. Accordingly, there is no requirement (as there is in a direct discrimination claim) to identify a comparator or comparator group whose circumstances are the same or nearly the same as the disabled person’s circumstances. A comparison can be made with non-disabled people generally.

[422]The phrase “provision, criterion or practice” is not defined by the 2010 Act. It broadly encompasses requirements placed upon employees by employers. It can extend to formal or informal policies, rules, practices or arrangements.

[423]An employer only has a duty to make adjustments if they know or could reasonably be expected to know both that the affected worker is disabled and that they are placed at a substantial disadvantage by the application to them of the relevant provision, criterion or practice. The words “could reasonably be expected to know” encompass the concept of constructive knowledge. The question of whether the employer had or ought to have knowledge of the disability in question is one of fact for the Tribunal.

[424]The duty to make reasonable adjustments requires employers to take such steps as is reasonable to have to take in order to have to make adjustments. There is no onus upon the disabled person to suggest what adjustments should be made. However, by the time that the matter comes before the Employment Tribunal, the disabled person ought to be able to identify the adjustments which they say would be of benefit.

[425]There is no requirement for the disabled person to show that on balance the adjustment would ameliorate the disadvantage. There merely has to be a prospect that the adjustment may benefit the disabled person. As was said by Elias P in Project Management Institute v Latif

[2007] IRLR 580

(at paragraph 54): “… the claimant must not only establish that a duty has arisen, but there are facts from which it could reasonably be inferred, absent an explanation, that it has been breached. Demonstrating that there is an arrangement causing a substantial disadvantage engages the duty, but it provides no basis on which it could be inferred that there is a breach of that duty. There must be evidence of some apparently reasonable adjustment which could be made.”

[426]The following are some of the factors which, according to the ECHR Code, might be taken into account when deciding what is a reasonable step for an employer to have to take. These are:  Whether taking any particular step would be effective in preventing the substantial disadvantage.  The practicality of the step. 10.5 Reserved judgment with reasons – rule 61 82 March 2017  The financial costs of making the adjustments and the extent of any disruption caused.  The extent of the employer’s financial or other resources.  The availability to the employer of financial or other assistance to make an adjustment.  The type and size of the employer.

[427]Ultimately, the test of reasonableness is an objective one and will depend upon the circumstances of the case. Adjustments may include transferring the disabled person to fill an existing vacancy, altering the disabled person’s working hours or providing them with training or assigning a disabled person to a different place of work or arranging home working.

[428]In his closing submissions, Mr Keen referred to the case of Noor v Foreign and Commonwealth Office [UK

EAT/470/10

]. It was held by the Employment Appeal Tribunal that there was no requirement that, in order for an adjustment to be reasonable, it had to be shown that the making of it would prevent the disadvantage. Further, it was not fatal to the complainant’s case that, if a reasonable adjustment should have been made for the purposes of removing the disadvantage, he would still have been unsuccessful with the job application in question. That was an issue going to the question of remedy.

[429]In this case, the claimant brings reasonable adjustment complaints against both the first and second respondent. As Mr Keen says in paragraph 63 of his submissions, the respondents’ duties arose from different sections of the 2010 Act. In the second respondent’s case the duty arose from section 41(4) of the 2010 Act and in the first respondent’s case from section 39(5). The prohibited conduct (in terms of the prohibition against the failure to make reasonable adjustments) is identical in each case (arising from sections 20 and 21 of the 2010 Act). He submits that the claimant does not need to rely on any attribution of wrongdoing as between the two respondents. Either of them could have discharged the duty but until one did the obligation rested upon them both. This appears to be an uncontroversial proposition in principle.

[430]By section 123 of the 2010 Act, the general rule is that a claim concerning work related discrimination, victimisation or harassment must be presented to the Tribunal within the period of three months beginning with the date of the act complained of. There is however no bar on claims being presented outside the three months’ limitation period because the Tribunal has a discretion to allow a claim to be brought within such other period as the Tribunal thinks just and equitable.

[431]Conduct extending over a period is to be treated as done at the end of that period. Where there is a series of distinct acts, the time limit begins to run when each act is completed whereas if there is a continuing discrimination, time only begins to run when the last act is completed.

[432]Where an employer operates a discriminatory regime, rule, practice or principle then such will amount to an act extending over a period. Where however there is no such regime, rule, practice or principle in operation, an act will not be treated as continuing, even though the act has ramifications 10.5 Reserved judgment with reasons – rule 61 83 March 2017 which extend over a period of time. For example, a decision not to appoint or re-grade an employee will be a one off act or decision but with continuing consequences. The Tribunal needs to look at the substance of the complaints in question and determine whether they can be said to be part of a continuing act by the employer. In doing so, one relevant but not conclusive factor is whether the same or different individuals were involved in the incidents.

[433]In South Western Ambulance Service NHS Foundation Trust v King [EAT 0056/19] the Employment Appeal Tribunal held that if any acts are not established on the facts or found not to be discriminatory then they cannot form part of the continuing act. In that case, the single act of victimisation found to be made out by the Tribunal was held to be out of time. The complainant was unable to extend time by pointing to the other acts of which he complained but which were held not to be in contravention of the 2010 Act.

[434]Where the complaint relates to an omission to do something, then failure to do something is to be treated as occurring when the person in question decides upon it. A person is to be taken to decide upon a failure to do something when they do an act inconsistent with it or (where there is no inconsistent act) upon the expiry of the period in which the decision maker might reasonably have been expected to do it.

[435]Where the claim arises out of an act inconsistent with the doing of the omitted act then the matter is fairly straightforward, as when time starts to run is clearly identifiable. A more difficult situation arises where the complainant is seeking to argue that there is no inconsistent act, that the employer may reasonably have been expected to do the act in question. This creates a counter intuitive situation where, upon a consideration of whether a claim is in time or not, it will be in the interests of the employer to argue that they might reasonably have been expected to deal with the reasonable adjustment earlier and in the interests of the employee to assert that the employer had not been unreasonably slow to act.

[436]The application of these principles to reasonable adjustments claims was considered in Matuszowicz v Kingston upon Hull City Council

[2009] ICR 1170

. The Court of Appeal held in that case that where an employer’s alleged failure to make an adjustment is inadvertent, the three months’ time limit for bringing a claim starts to run on the expiry of the period within which the employee might reasonably have been expected to make the adjustments.

[437]It is of course possible for there to be separate acts of discrimination about the same matter. Where this situation arises, there may be discreet decisions each of which gives rise to a separate cause of action. Time will run from each occasion upon which a specific provision, criterion or practice was applied and resulted in a specific disadvantage. In Rovenska v General Medical Council

[1997] IRLR 367

the Court of Appeal held that the time limit begins to run again on each occasion on which the policy is applied. Thus, where the claimant was refused the same request on a number of occasions each refusal caused the three months’ time limit to start afresh. 10.5 Reserved judgment with reasons – rule 61 84 March 2017

[438]It is open to a Tribunal to extend time should it be just and equitable so to do. Time limits are exercised strictly in employment cases. It is for the complainant to convince the Tribunal that it is just and equitable to extend time. The exercise of the discretion is the exception rather than the rule. In considering whether to exercise discretion under section 123 to extend time, all factors must be considered including in particular the length and the reasons for the delay.

[439]In Robertson v Bexley Community Centre t/a Leisure Link

[2003] IRLR 434

the Court of Appeal held that there is no presumption that Tribunals should extend time unless they can justify failure to exercise the discretion. The reverse is the case. The Tribunal cannot hear a claim unless the claimant convinces it that it is just and equitable to extend time. The exercise of the discretion is the exception rather than the rule.

[440]The Tribunal’s discretion to extend time upon an out of time complaint is a wide one. The factors which are almost always relevant are the length of and the reasons for the delay and whether the respondent suffered prejudice. There need not be a good reason for the delay. It is not the case that time cannot be extended in the absence of an explanation for the delay from the complainant. The most it can be said is that whether there is any explanation or apparent reason for the delay and the nature of any reason are relevant matters to which the Tribunal ought to have regard. However, there needs to be something to convince the Tribunal that it is just and equitable to extend time. Authority for these propositions may be found in the case of Abertawe Bro Morgannwg University Local Health Board v Morgan

[2019] EWCA Civ 640

[441]While the exercise of the discretion is the exception rather than the rule, this does not mean that exceptional circumstances are required before the time limit can be extended on just and equitable grounds. The law simply requires that an extension of time should be just and equitable.

[442]The Tribunal may take into account any factor which it considers to be relevant. The strength of the claim may be a relevant factor when deciding whether to extend time. In disability cases, the Tribunal may recognise that disabled claimants might find it difficult to comply with the three months’ time limit.

[443]It is necessary for the Tribunal to weigh the balance of prejudice between the parties. A refusal to extend time will inevitably prejudice the claimant. However, the claimant needs to show than that the loss of the claim because of the application of the relevant limitation period will prejudice them. If that were to be sufficient, it would emasculate the limitation period. Plainly, Parliament has legislated for relatively short limitation periods in employment cases. The limitation period must be applied unless the claimant can convince the Tribunal that time ought to be extended.

[444]The other side of the coin is that some prejudice will of course be caused to the respondent if an extension of time is granted given that the case would otherwise be dismissed. However, the prejudice caused needs to amount to more than simply that. Otherwise, such would emasculate the discretion vested in Tribunals by Parliament to consider just and equitable extensions of time. 10.5 Reserved judgment with reasons – rule 61 85 March 2017

[445]This concludes our consideration of the relevant law. We shall however refer to some of the other authorities cited to us by counsel in our discussions and conclusions. Discussion and conclusions Knowledge of disability

[446]The first issue for the Tribunal to determine is when the respondents knew or ought to have known that the claimant suffered from each of the disabilities set out in paragraph 359.1. The respondents concede the claimant to be disabled for the purposes of section 6 of the 2010 Act by reason of these physical and mental impairments. However, the date of knowledge of the disabilities is in issue. We shall at this stage deal only with the question of the respondents’ knowledge of the disabilities. For the reasonable adjustments claim a defence will be available where it can be shown that the respondents did not know and could not reasonably be expected to know both of the disability and that a substantial disadvantage caused by it. We shall deal with the consideration of substantial disadvantage when we look at the reasonable adjustments complaint.

[447]The respondents accept that the claimant disclosed her dyslexia at the interview in October 2019. As each respondent was represented on the interview panel, this is a concession properly made by them.

[448]The occupational health report of 20 December 2019 made reference to dyslexia and also to Central Auditory Processing Disorder and dyspraxia. We refer to paragraph 33. The occupational health consultant was working for an external provider. Nonetheless, upon the basis that her report was supplied to Dr Whittaker on or around that date, the first respondent concedes knowledge of dyslexia, Central Auditory Processing Disorder and dyspraxia from 20 December 2019.

[449]In paragraph 35 of the reasons, it was found that the occupational health consultant’s notes at pages 930 to 933 of the bundle records the claimant also as having suffered from post-traumatic stress disorder symptoms, depression and anxiety “following four years of discrimination at work.”

[450]There is no evidence that Dr Whittaker saw those notes. Paragraph 6.21 of the ECHR Code says that, “If an employer’s agent or employee (such as an occupational health advisor, a HR officer or a recruitment agent) knows, in that capacity, of a worker’s or applicant’s or potential applicant’s disability, the employer will not usually be able to claim that they do not know of the disability and that they therefore have no obligation to make a reasonable adjustment. Employers therefore need to ensure that where information about disabled people may come through different channels, there is a means – suitably confidential and subjected to the disabled person’s consent – for bringing that information together to make it easier for the employer to fulfil their duties under the Act.” The Code goes on to say in paragraph 6.22 that, “Information will not be ‘imputed’ or attributed to the employer if it is gained by a person providing services to employees independently of the 10.5 Reserved judgment with reasons – rule 61 86 March 2017 employer. This is the case even if the employer has arranged for those services to be provided.”

[451]Paragraph 6.21 does suggest that because information gained by the occupational health consultant on the employer’s behalf is assumed to be shared with the employer, the occupational health advisor’s knowledge means that the employer’s duty under the 2010 Act will apply as a lack of knowledge defence will not be available to the employer.

[452]In paragraphs 9 and 10 of her written submissions, Miss Nowell cited authorities against the proposition contained in the ECHR Code. In Hartman v South East Essex Mental Health Community Care NHS Trust

[2005] EWCA Civ 6

the Court of Appeal determined that the employer was not fixed with knowledge of a psychiatric condition that was disclosed in confidence to occupational health, even where the occupational health practitioner was employed by them. She cited paragraph 34 and 35 of the judgment of Lord Justice Scott-Baker.

[453]In paragraph 34 Scott-Baker LJ quoted from the publication Medical Ethnics Today published by the British Medical Association which said that, “The fact that a doctor is a salaried employee gives no other employees of that company any right of access to medical records or to the details of examination findings. With the employee’s consent, the employer may be advised of any relevant information relating to a specific matter on a strictly need to know basis, the significance of which the employee clearly understands. If an employer explicitly or implicitly invites an employee to consult the occupational physician, the latter must still regard such consultation as strictly confidential.” He then went on to hold in paragraph 35 that, “There was no basis upon which the [first instance] judge could properly conclude that the Trust was fixed with knowledge of the confidential information disclosed by Mrs Hartman to the [occupational health department].”

[454]She also cited Q v L [2019] UK EAT 0209-18. This was a case in which an issue arose regarding the employer’s knowledge of the complainant’s Tourette’s Syndrome when he disclosed it to a third party occupational health practitioner, expecting that information to be passed on to the employer. Mrs Justice Slade sitting in the EAT followed Hartman and held that the Employment Tribunal erred in holding “… that the [employer] was fixed with knowledge of OH Assist, and that they knew about the claimant’s Tourette’s from the outset.” She said in paragraph 70 of the Judgment that, “In the absence of wider written consent, the fact that the claimant expected information to be passed by OH Assist to the respondent did not change the binding nature of the obligation of confidence on them.”

[455]In Q v L is of course binding upon this Tribunal. It is very much on point because the occupational health consultant involved in the case was, as here, a third party provider. The EHRC Code says, in paragraph 1.13, that the Code does not impose a legal obligation nor is it an authoritative statement of the law. The Tribunal should have regard to the provisions of the Code. However, the Tribunal is bound by decisions of the higher courts. In the circumstances, upon the authority of Q v L, we find that the first respondent did not have knowledge of the PTSD, depression and anxiety 10.5 Reserved judgment with reasons – rule 61 87 March 2017 disclosed by the claimant to the occupational health consultant in December 2019.

[456]The issue of Post Traumatic Stress Disorder was raised by the claimant with Dr Whittaker on 22 April 2020. We refer to paragraph 116. The first respondent accepts that the claimant’s notification to them of that condition was sufficient to fix them with knowledge of it on that day. Accordingly, we hold that the first respondent acquired knowledge of the Post Traumatic Stress Disorder condition on 22 April 2020.

[457]In paragraph 117 of the reasons, we refer to paragraph 35 of Dr Whittaker’s witness statement in which she said that at around the same time (April 2020) she mentioned that arrangements were being made for an assessment of possible ADHD. This was diagnosed by Dr Alhaj on 25 April 2020 and notified to Dr Whittaker on 6 May 2020 (paragraph 133). The first respondent accepts therefore that they were fixed with knowledge of the ADHD from that date.

[458]The claimant had, of course, sent to Dr Whittaker the three medical reports which we summarised in paragraphs 44 to 50. These reports all focused upon dyslexia which the first respondent accepts knowledge of in any case. (These three reports are of course of significance upon the question of a substantial disadvantage caused to the claimant by the dyslexia by the application of the respondents’ provisions criteria and practices as we shall see).

[459]On 3 February 2020, the claimant mentioned her condition of Attention Deficit Disorder. We refer to paragraph 52. She mentioned that condition in connection with the working up of her disability passport on 21 May 2020 (paragraph 143). She also made mention in the same email of her anxiety. The claimant had of course mentioned depression and anxiety to the occupational health consultant in December 2019 but, as we have determined, that information remained confidential as between the claimant and the consultant and was not known to the first respondent.

[460]The features of attention deficit disorder and anxiety disorder were mentioned in the Access to Work report upon internal pages 2 and 3 of it. (We refer to paragraph 82 above).

[461]As we observed in paragraphs 90 and 91 of the reasons, the respondents’ evidence around the provenance of the Access to Work report was unsatisfactory. It appears to be the case that Dr Whittaker did not receive the whole of the Access to Work report and that the internal pages listing the impairments was not received by her. However, it must have been selfevident to her upon reading it that internal pages were missing.

[462]Such should, in our judgment, have alerted Dr Whittaker to the fact that there was missing information and to cause her to put in hand enquiries of the claimant about it. Had that been done, then it would have confirmed information which she already had about the ADD (the claimant having already disclosed this on 3 February 2020) and would have revealed anxiety disorder. Upon this basis, we find that the first respondent had constructive knowledge of the claimant’s anxiety disorder from around 17 March 2020: that date is arrived at from our findings in paragraphs 90 and 91. 10.5 Reserved judgment with reasons – rule 61 88 March 2017

[463]In summary, therefore, from what is a difficult and complex picture, we conclude that the first respondent had actual or constructive knowledge of all of the disabilities in paragraph 359.1 by 21 April 2020 (being the claimant’s first day of work). This is the case for all of the conditions except PTSD of which the first respondent became aware on 22 April 2020 and ADHD of which the first respondent became aware on 6 May 2020.

[464]As we have said, the second respondent accepts that Mrs Wilman knew from the time of the interview of the claimant for her job with the first respondent that the claimant had dyslexia. It is the case that no other conditions were disclosed by the claimant at interview. The second respondent’s case is that it was not until 21 July 2020 that the reports in the bundle at pages 861 (concerning dyslexia), 893 (concerning dyslexia), 1635 (concerning dyslexia) and 1216 (Dr Alhaj’s report concerning ADHD) were disclosed to the second respondent. We refer to paragraph 178.

[465]Accordingly, the second respondent submits that Mrs Wilman was not aware of the dyspraxia, the Central Auditory Processing Disorder, the PTSD or the anxiety disorder at the relevant time with which the Tribunal is concerned. This is because the information was kept confidential as between the claimant and the first respondent.

[466]Mr Grundy submits there was no reason for the second respondent to commission their own occupational health report. The claimant was not the second respondent’s employee. It was submitted therefore that it was a matter for the first respondent to commission occupational health reports upon the claimant and a matter then for the claimant as to what she wished to share with the second respondent.

[467]The difficulty with that suggestion is that the second respondent has a duty to the claimant to make reasonable adjustments. This is an obligation which is imposed upon the second respondent in the capacity of a principal making work available to an individual such as the claimant where that individual is employed by another. It would undermine the mischief against which section 41(4) of the 2010 Act is directed were it to be the case that the principal could simply sit back and do nothing and leave matters to the worker’s employer.

[468]Johanna Wilman took delivery of the Access to Work report on 17 March 2020 (paragraph 86). Again, the report of which she took delivery was incomplete. She made no effort to seek to ascertain the full report. Had she done so, then she would have learned not only of the dyslexia but also the dyspraxia, Central Auditory Processing Disorder, Attention Deficit Disorder and anxiety disorder all of which were referred to in the report.

[469]The claimant plainly had the full report. That is evident from the fact that she disclosed it in full in these proceedings (albeit late). There was nothing to put the claimant on notice that the respondents were working with only a partial report.

[470]There is, in our judgment, sufficient to fix the second respondent with constructive notice of the dyspraxia, Central Auditory Processing Disorder, Attention Deficit Disorder and anxiety disorder in March 2020. Allowing a reasonable opportunity for Mrs Wilman to read the report hand delivered to her (via her desk drawer) on 17 March 2020, in our judgment the second 10.5 Reserved judgment with reasons – rule 61 89 March 2017 respondent was fixed with constructive knowledge of those conditions from around 25 March 2020. At all events, they had constructive knowledge of them prior to the claimant starting work at the CDC.

[471]We agree with Mr Grundy that the second respondent was not fixed with actual or constructive knowledge of the ADHD and PTSD until 21 July 2020, there being nothing to suggest that the second respondent had been placed on notice of that condition before then. There was nothing to fix the second respondent with actual or constructive knowledge of the PTSD up to and including the day spent by the claimant working at the CDC on 21 April 2020. There was reference of a possible diagnosis of PTSD in Dr Alhaj’s report of 25 April 2020 sent to Mrs Wilman on 21 July 2020. This would be sufficient in our judgment to put the second respondent on enquiry of the PTSD and thus fix them with constructive knowledge of it. Claimant’s status vis the second respondent.

[472]The second issue is whether the second respondent was the principal for the purposes of the contract worker provisions in section 41 of the 2010 Act or sections 109 to 112 of the 2010 Act? As we have said several times, there is no issue that the second respondent was a principal for the purposes of section 41 of the 2010 Act until 31 March 2021 (upon which date the contract between the respondents expired).

[473]As we said in paragraph 15, the issue whether the second respondent was a principal pursuant to section 109 of the 2010 Act was not pursued with great vigour by Mr Keen on the claimant’s behalf. The issue does not feature in his written submissions.

[474]In Ministry of Defence v Kemeh

[2014] ICR, 625

CA the Court of Appeal held that a principals’ liability for an agent’s discriminatory acts is governed by common law principles. On the facts of Kemeh, the Court of Appeal was satisfied that no question of agency arose. The discriminator in that case – who had racially abused the complainant who was a Ministry of Defence employee – was employed by a third party to carry out work with the MOD. There was no evidence that the discriminator or his employer was an agent of the MOD in the sense that they were acting on the MOD’s behalf. The MOD was therefore not liable for the racial abuse perpetuated by the discriminator.

[475]The acts which founded the complainant’s claim in Kemeh arose before the coming in to force of the 2010 Act. It was a claim brought under the Race Relations Act 1976. However, the statutory provisions were written in very similar terms.

[476]The relevant provisions of section 109(2) of the 2010 Act with which we are concerned – which says that anything done by an agent for a principal with the authority of the principal must be treated as done by the principal – was considered in a later case of Unite the Union v Nailard

[2017] ICR 121

, EAT. There it was held that the test of authority under section 109(2) is whether the discriminator was exercising authority conferred by the principal. A principal can be held liable for the acts of an agent under section 109(2) either on the basis of prior authority (express or implied) or on the basis of subsequent ratification. 10.5 Reserved judgment with reasons – rule 61 90 March 2017

[477]It is difficult to see how the first respondent was acting as the second respondent’s agent when the first respondent decided to employ the claimant. It is of course the case that the first respondent employed the claimant with the express purpose of her working at the CDC in furtherance of the contract between the respondents. The protection for the claimant in that circumstance arises through section 41 of the 2010 Act as the claimant was being supplied by the first respondent to do work for the second respondent in furtherance of a contract to which the second respondent was a party. There is no evidence that the second respondent was required to authorise the engagement by the first respondent of the claimant or subsequently ratified it. It was entirely a matter for the first respondent how the contract between the respondents was serviced by them.

[478]In the circumstances, we conclude that the second respondent was not the principal for the purposes of section 109 to 112 of the 2010 Act. It is difficult to see in any case how the protections afforded to the claimant by section 41 of the 2010 Act would be enhanced by a finding in her favour upon the section 109 issue and no submissions were made upon this matter by Mr Keen. Accordingly, the Tribunal determines the second issue in favour of the second respondent. Direct discrimination and harassment claims.

[479]We now turn to consider the complaints of direct discrimination and harassment set out in paragraphs 359.3 and 359.4. The first issue is whether the first respondent treated the claimant less favourably than they would have treated a hypothetical non-disabled comparator by not wanting to continue with her hire and questioning and querying whether she still wanted her role with HR. This is the case as pleaded in paragraphs 19, 30, 31 and 44 of the claimant’s amended particulars of claim which we have recited in paragraph 360.

[480]Paragraph 19 of the amended particulars of claim centres upon the contention that the respondents were not ready for the claimant to start work on 21 April 2020 and (in summary) the allegedly dismissive attitude of Dr Whittaker and Johanna Wilman to the claimant’s adjustments.

[481]We know from the chronology within the reasons that the claimant was verbally offered the role on 17 October 2019. The first respondent envisaged her starting in December 2019 or January 2020 (paragraph 27 of the reasons). On 2 December 2019 the claimant suggested a provisional start date in March 2020 to accommodate the need for her to complete her thesis and give two months’ notice to her current employer (paragraph 32). A start date of 13 March 2020 was tentatively agreed (paragraph 39).

[482]The parties agreed upon a provisional start date around the middle of March 2020. Then, at the end of February 2020 the claimant asked to take leave (which she was prepared to take unpaid) to work upon her thesis (paragraph 67). This then prompted Johanna Wilman to suggest to Dr Whittaker deferring the claimant’s start date (paragraph 68). The start date was put back to 30 March 2020 (paragraph 78). It was then deferred further to 14 April 2020 (paragraph 96). Eventually, 21 April 2020 was agreed as a start date (paragraph 100). These are not the actions of a reluctant employer. 10.5 Reserved judgment with reasons – rule 61 91 March 2017

[483]It is right to say that Johanna Wilman anticipated difficulties with the claimant’s induction (paragraph 97). This was because of the difficulties presented by the pandemic. The claimant would not be able to meet the team because they were not in the workplace. There was also difficulty sourcing the equipment. She expressed concerns that going ahead with an induction then would “not be wise or good for Catherine.”

[484]The claimant herself was reluctant to come into the CDC because of the impact of the pandemic and her vulnerability (and the vulnerability of her brother). There were difficulties on 21 April 2020 presented by the claimant not having a fob. However, a desk was found for her albeit not to the claimant’s satisfaction. This was because it was facing the wall and had items stored upon it. Other desks were available to use as fewer people were in work because of the pandemic. No chair was supplied but one was found. A lockable cabinet was provided. We refer to paragraphs 105 and 106.

[485]It is right to observe that Johanna Wilman questioned whether the claimant still wanted the post before she actually started work. We refer to paragraph 89.

[486]Upon this allegation (so far as the pleading in paragraph 19 at paragraph 360) is concerned we conclude as follows. There is no statutory comparator. The question that arises is therefore how the first respondent would have treated a hypothetical non-disabled comparator with the same or similar abilities of the claimant and in similar circumstances to her. In other words, how would the first respondent have dealt with a non-disabled comparator (with the same or similar abilities of the claimant) commencing a band 6 post and who had a thesis pending in order to enable her to qualify and who was starting work at the outset of the pandemic with the difficulties presented by it and by the national lockdown announced on 23 March 2020?

[487]In our judgment, there is simply no evidence that the claimant was less favourably treated than would have been a non-disabled comparator in such circumstances. There is nothing to suggest that the induction process for such a hypothetical comparator would have been any better than that for the claimant given the circumstances. It is difficult frankly to see how such an induction process held on 21 April 2020 could realistically have been any better (from the perspective of meeting others) for anybody else given that the lockdown restrictions applied to all.

[488]We do not accept that the respondents were not ready for the claimant to start work on 21 April 2021. The claimant had what she needed to do the work that she was required to undertake that day. We agree that it was not ideal for the claimant to have been given a wall facing desk with storage items upon it. However, as few people were around having a wall facing desk ought not to have raised concerns about hypervigilance and in any case, there were ample other desks for her to use given that the majority of staff were working from home. While being presented with a desk with items upon it might have created a poor impression those items were easily moved away to enable the claimant to work at the desk. There was no evidence that a chair was not found straightaway. The claimant did not need all of the items recommended by Access to Work to be in place to enable her to undergo her induction that week. 10.5 Reserved judgment with reasons – rule 61 92 March 2017

[489]Given the pressures upon the respondents presented by the pandemic and the lockdown we cannot be satisfied from the evidence that a non-disabled hypothetical comparator would have had a happier experience than that of the claimant. There was no evidence that such was the case.

[490]We do not accept as a proposition that the respondents did not wish to continue with the claimant’s hire. Firstly, psychologists are hard to come by. It was for this reason that the respondents took the unusual step of recruiting the claimant at band 6. Given the short supply of psychologists it is in our judgment against the probabilities that the respondents would have wanted to give up on the claimant’s hire so soon into the process. Secondly, it was at the claimant’s suggestion that the start date be deferred in order that she could complete her thesis. Mutual agreement was reached to defer the start date. That is not the same as the respondents being unwilling to continue with the claimant’s hire. Quite to the contrary, they were willing to accommodate the claimant’s wishes for a deferred start date. Johanna Wilman’s concerns that the claimant was having second thoughts about the job would, we think, have occurred to her about a non-disabled comparator in similar circumstances. There was no evidence to suggest that she would have adopted a different approach had a non-disabled comparator acted as did the claimant.

[491]The next limb of the first allegation of direct discrimination (around not wanting to continue with the claimant’s hire and querying whether she wished to continue in role) relates to the matters pleaded in paragraphs 30 and 31 of the amended particulars of claim. In summary, this concerns the claimant’s allegations that she felt that she was having to negotiate for adjustments to be made and in particular the issue around working from home. The claimant complained that “the pathway [for managing reasonable adjustments] is unclear and appears to be viewed as a negotiation” on 5 July 2020 (paragraph 171). The issue of working from home was eventually resolved on the terms that we have recorded in paragraphs 265 and 267.

[492]There is no evidence that a hypothetical comparator with the same or similar abilities to those of the claimant and who wished to work from home would have been treated any better than was the claimant. It was an intrinsic part of the role for the post-holder to be in the workplace undertaking clinical work as part of a multi-disciplinary team. Given those circumstances, a nondisabled comparator who wished to work from home for periods of time may expect to have that request scrutinised in order that a balance may be struck between the employee’s wish on the one hand and the needs of the service on the other. There is therefore no evidence of less favourable treatment of the claimant.

[493]The claimant also points to the five matters in paragraph 44 of the amended particulars of claim as supporting this contention (that the respondents did not wish to continue with the claimant’s hire and that they questioned whether she wanted her role). The first of these is at paragraph 44 (a). It is the case that Dr Whittaker recommended the claimant be re-deployed. This was on 29 September 2020. We refer to paragraph 218. However, this must be seen in the context of Dr Whittaker knowing that the second respondent had given notice to terminate the contract with effect from the end of March 2021. There is simply no evidence that a non-disabled 10.5 Reserved judgment with reasons – rule 61 93 March 2017 comparator in the same or similar circumstances to the claimant would have been treated any differently. There is no evidence that Dr Whittaker would not have applied her mind to the re-deployment of a non-disabled comparator otherwise facing redundancy in six months’ time. That she was doing this is not indicative of an unwillingness to continue her employment. It is in fact the opposite - that the first respondent was willing to explore reasonable alternatives in order to keep her in employment.

[494]The claimant also prayed in aid (in paragraph 44(b) of the amended particulars of claim) the decision not to tell the claimant immediately after they found out that the psychology service was ending within the CDC. It is the case of course that the claimant was not informed of this development for a period of around a month. Again, there is no evidence that the respondents would have treated a non-disabled comparator any differently. The respondents acted pursuant to what they considered to be the relevant policy requirement as referred to in paragraphs 252 and 253 above. There is simply nothing to suggest that the respondents’ approach would have been any different were it to be a non-disabled band 6 clinical psychologist affected by the second respondent’s decision to end the contract with the first respondent.

[495]The claimant also prayed in aid (in paragraph 44(c)) Dr Whittaker’s comments to occupational health regarding the claimant’s competency to fulfil a band 7 role. We presume this is in relation to the referral of 7 December 2020 referred at paragraphs 283 to 284. Here, Dr Whittaker said that she was “unsure if Catherine can manage the usual expectations and a band 7 clinical psychologist in an NHS setting – the number of referrals, confidence, organisational abilities.” The correct comparator, pursuant to section 23 of the 2010 Act, for the purposes of a disability case is with a non-disabled comparator with the same abilities as the complainant. There is no evidence that a non-disabled comparator performing to the same level and to the same standard as was the claimant would have been treated any better by Dr Whittaker. There was no suggestion that such an individual would not have been subjected to performance scrutiny.

[496]The claimant then refers (in paragraph 44(d)) to Sarah Whittaker’s comments to human resources regarding the claimant’s competency to do a band 7 role due to her ADHD. It is not clear to the Tribunal when these comments were made. We found as a fact that Dr Whittaker was aware of the ADHD from 6 May 2020. Dr Whittaker wrote to the claimant to thank her for the information about that diagnosis and asked the claimant whether she considered that she was able to work with adjustments (page 1287). The Tribunal cannot find the relevant reference in Mr Keen’s chronology. In any case, this appears to raise the same issue as with Dr Whittaker’s comments to occupational health regarding the claimant’s competency and the same conclusions must therefore follow. Further, the claimant herself recognised that she had difficulties in performing to the requisite level (paragraph 302).

[497]Finally, the claimant prayed in aid (in paragraph 44(e)) Dr Whittaker’s refusal to support the claimant in raising NICE guidance issues regarding the provision of psychology service at the CDC. We find as a fact that Dr Whittaker in fact supported the claimant. She was not dismissive of her raising concerns around NICE compliance and invited her to undertake 10.5 Reserved judgment with reasons – rule 61 94 March 2017 research into the matter so that Dr Whittaker could give feedback to the second respondent. We refer to paragraphs 274 and 275. Again, there is nothing to suggest that a non-disabled comparator raising issues of NICE guidelines would have been treated any differently from the claimant.

[498]The second allegation of direct discrimination centres upon the first respondent altering or attempting to alter the claimant’s job. This is pleaded in paragraph 27 and centres upon the issues that the claimant set out in an email of 12 June 2020 to which we refer in paragraph 154 of the reasons.

[499]It is right to say that the claimant’s role altered from that which had been envisaged when she was recruited. When she was recruited, she envisaged working with Lisa Moss who would, it was hoped, assist her development in her role. The claimant knew of course that Lisa Moss had handed in her notice. The claimant was informed of this on 28 January 2020 (paragraph 40). It is not clear precisely when the claimant handed in her notice to her previous employer. However, as she was on two months’ notice and there was discussion around the claimant commencing work in March 2020 it must be the case that the claimant had committed to the first respondent by resigning from her previous employment prior to her knowing that Lisa Moss had resigned.

[500]We accept therefore that the claimant was committed at that point. Further, the claimant only found out later that the second respondent had decided not to recruit a replacement band 8a psychologist. Dr Whittaker tried to reassure the claimant that her role in fact had not changed (we refer to paragraph 123).

[501]We therefore accept the claimant’s case that Lisa Moss’s resignation and the second respondent’s decision not to replace Lisa Moss put a different complexion on matters and had implications for her career development. However, there is simply nothing to suggest that a non-disabled band 6 psychologist in the same or similar circumstances would have been treated differently from the claimant. The same circumstances would have pertained in any case. The need to alter the job role stemmed from the second respondent’s decision to not replace Lisa Moss given the difficulties which they had with recruitment and their decision to deploy resources elsewhere: paragraphs 99, 162 and 228.

[502]The third allegation of direct discrimination is that the first respondent presumed that the claimant had not provided the operational quality/competence required of a clinical psychologist, solicited evidence to undermine the claimant’s competency and/or admonished her for the same. This is a reference to paragraph 44 of the amended particulars of claim. We have in substance considered this already in connection with allegation 3(a) (paragraphs 495 and 496).

[503]The fourth allegation of direct discrimination against the first respondent is an alleged refusal to support her in raising NICE guidance issues regarding the provision of psychology services at the CDC. Again, this is a reference to paragraph 44 of the amended particulars of claim which we considered in connection with allegation 359.3 (a) in paragraph 497.

[504]The fifth allegation against the first respondent is that they terminated the contract to provide psychology services at the CDC, placed the claimant at 10.5 Reserved judgment with reasons – rule 61 95 March 2017 risk of redundancy, did not seek her re-deployment and did not include her in any service provision change. This case is pleaded at paragraphs 37 to 41 of the amended particulars of claim.

[505]The last of these allegations may be quickly disposed of. There was no evidence that there was a service provision change. We refer to Mr Easthope’s conclusions in paragraph 353 of the reasons. These were correct given the second respondent’s decision to end the clinical psychology service. This was being simply finished. It was not being taken in house or contracted out to another provider. TUPE was not engaged. This allegation fails on the facts.

[506]It is of course the case that the claimant was placed at risk of redundancy consequent upon the second respondent’s decision to end the contract with the first respondent. The simple fact of the matter is that she was at risk of redundancy. The job which she was employed to do by the first respondent (working pursuant to the contract between the respondents) was going to end. The requirement of the first respondent for employees to carry out work of the kind which the claimant was employed to do was therefore expected to cease. The first respondent did seek to re-deploy the claimant. Unfortunately, no suitable alternatives were found. There is nothing to suggest other than that a non-disabled comparator occupying the post would have been treated in the same way by the first respondent.

[507]The claimant’s contention that she was discriminated against because of the first respondent’s decision to terminate the contract to provide psychology services at the CDC is misconceived. It was of course the second respondent who ended the contract with the first respondent and not the other way round. The first respondent had no control over the second respondent’s decision.

[508]The next issue is that the claimant was not informed as soon as the respondents were aware of the termination of the contract to provide psychology services at the CDV. This is a reference to paragraph 44 of the amended particulars of claim and has been dealt with in paragraph 494.

[509]The next allegation against the first respondent is that they did not deal with the claimant’s grievance regarding the removal of psychology from the CDC in accordance with the first respondent’s grievance procedures. It is accepted by the first respondent that their grievance procedures may have covered the claimant’s grievance and ought to have been investigated by the first respondent. We refer in particular to paragraph 299. Mrs Wilkinson accepted in evidence that the advice given to her that the first respondent was not able to deal with the claimant’s third grievance was incorrect.

[510]While that is unfortunate, there is again no evidence that a non-disabled comparator who raised a grievance in the same terms as did the claimant would have had their grievance heard. There is no evidence to suggest other than that Linda Wilkinson would have received the same advice from human resources and acted upon it had a grievance been raised by a nondisabled comparator. Therefore, while matters took a wrong turn, this did not involve any less favourable treatment of the claimant in any case.

[511]The claimant then claims of direct discrimination upon the basis that the first respondent dismissed her for redundancy and did not pay her a redundancy 10.5 Reserved judgment with reasons – rule 61 96 March 2017 payment. As we have just said, the fact of the matter is that the claimant was, unfortunately redundant. The first respondent’s need for employees to carry out work in clinical psychology upon the contract between the respondents had ended. No suitable alternative employment was identified. Mr Easthope carried out investigations and satisfied himself that (TUPE) was of no application. There was nothing to suggest that a non-disabled comparator would not have been made redundant.

[512]The reason why the claimant was not given a redundancy payment was because she had less than two years of service. A non-disabled comparator who also had a break in the continuity of their NHS service and had less than two years’ qualifying service would not have been paid a redundancy payment. There is no evidence to suggest otherwise.

[513]In conclusion, therefore, all of the complaints of direct discrimination against the first respondent fail and stand dismissed. We now need to analyse each of the allegations in paragraph 359.3 as they are put in the alternative of harassment related to disability.

[514]For the same reasons as upon the direct discrimination complaint, the allegation that the first respondent did not wish to continue with the claimant’s hire fails upon the facts. It is difficult to see in any case how the postponement of the claimant’s commencement date was unwanted conduct in circumstances where the claimant in fact suggested the postponement of it to accommodate the preparation of her thesis and for arrangements to be made to accommodate her disabilities. In those circumstances, deferring the claimant’s start date could not reasonably be considered a violation of the claimant’s dignity or the creation of an intimidating etc environment for her. The reverse is the case. Had the first respondent not paid heed to the claimant’s request then the claimant would reasonably have perceived hostility towards her.

[515]In the lead up to her commencing at the CDC, a positive meeting was held to discuss arrangements for the claimant to commence work (we refer to paragraph 62). The sequence of events prior to the claimant joining shows the first respondent and the second respondent seeking to assist the claimant to join while accommodating the needs which arose from the requirement to complete her thesis, the adjustments which she required and then her concerns around Covid.

[516]We have already observed that arrangements on 21 April 2020 were far from ideal. These were matters outside of the control of the first respondent anyway as they took place on the second respondent’s premises. We can agree with the claimant that there was unwanted conduct in that matters were not properly organised, and a poor impression was created. It is difficult to see however how such could be a violation of the claimant’s dignity or create an intimidating etc environment for her when she was able to be accommodated simply by moving things around and using another desk as fewer people were in than normal. In any case, such was not related to disability but to the organisational difficulties created for the second respondent by the demands of the pandemic.

[517]Upon the issue of job alteration, we can accept the claimant’s case that departure of Lisa Moss and the second respondent’s decision not to replace her was unwanted conduct. Plainly, she wanted to work with an 10.5 Reserved judgment with reasons – rule 61 97 March 2017 experienced clinical psychologist for career development. The difficulty for the claimant however is that such was not related to her disability. The decision centred purely upon the difficulty experienced by the second respondent in recruiting band 8a psychologists and decisions to deploy resources elsewhere.

[518]Upon the issue of the alleged presumption that the claimant had not provided the operational quality and competency required of a clinical psychologist and soliciting evidence to that effect, we find there to be no unwanted conduct in Dr Whittaker soliciting the opinion of occupational health as to what adjustments are required for the claimant. On the contrary, the claimant was anxious for adjustments to be put in place for her. This was to enable her to undertake her role. It was a reasonable step for the first respondent to take to obtain medical opinion to assist with the issue of reasonable adjustments.

[519]The allegation that Dr Whittaker refused to support the claimant in raising NICE guidance fails on the facts as we have already said. In any case, Dr Whittaker’s approach to the claimant raising the issue of NICE guidance has no connection with her disability.

[520]The allegations of harassment in so far as they relate to placing the claimant at risk of redundancy, not informing her as soon as the respondents were aware of the termination of the contract to provide psychology services, dismissing her for redundancy and in not paying her a redundancy payment may conveniently be dealt with together. We accept of course that the first respondent’s decision to end the claimant’s contract of employment by reason of redundancy and to not make a redundancy payment to her was unwanted conduct. The difficulty for the claimant is that nothing to do with the redundancy process was related to her disability. It all followed on from the second respondent’s decision to end the contract with the first respondent.

[521]Finally, we consider the issue of not dealing with the claimant’s grievance in accordance with the first respondent’s grievance procedures. We accept this to be unwanted conduct. The claimant wanted her grievance to be heard. The first respondent refused to hear it. However, again, this was because of a misapprehension about the scope of the first respondent’s grievance procedure upon the part of human resources and upon which advice Linda Wilkinson acted. It was simply unrelated to disability.

[522]We conclude therefore that all of the claimant’s complaints of harassment against the first respondent related to disability fail and stand dismissed.

[523]We now turn to the allegations raised by the claimant against the second respondent of direct discrimination and harassment related to disability in the alternative. Inevitably, given the close working relationship between the two respondents we have to some extent covered some of the allegations against the second respondent already. However, for the sake of good order we shall consider them all now.

[524]We shall deal firstly with the allegations at paragraphs 359.4(a). The first allegation against the second respondent consists of the matters in paragraphs 19, 30, 31 and 44 of the particulars at paragraph 360. As has already been said, the contention around the respondents not wanting to 10.5 Reserved judgment with reasons – rule 61 98 March 2017 continue with the claimant’s hire and questioning whether she wished to continue in her role fails on the facts as does that of not being ready for her on 21 April 2020. We refer to paragraphs 486 to 494 above.

[525]The claimant herself had reservations about the role (after the resignation of Lisa Moss). We refer to paragraph 155. Before the claimant expressly raised the issue, and independently of the claimant’s own thoughts, Johanna Wilman was questioning whether the claimant wanted the role. We refer to paragraph 89. There were question marks over whether the claimant wanted the role after she had been in post for only three days (see paragraph 128). This segues into the allegation at paragraph 359.4(b) of altering the job role. We repeat the conclusions in paragraphs 499 to 501. In any case, paragraph 27 of the particulars of claim relates to the actions of the first respondent only. That said, the claimant may be seeking to place reliance upon an email from Mrs Wilman to Dr Whittaker of 8 June 2020 to which we refer in paragraph 153. This has to be seen in the context of Lisa Moss’ departure and the second respondent’s decision not to recruit another band 8a psychologist. Matters had therefore moved on from how it was envisaged the claimant would work when she was recruited. As Johanna Wilman said (at paragraph 153) this was “new territory” for everybody.

[526]We agree with Mr Grundy’s submissions that the second respondent’s actions (in particular those of Johanna Wilman) before the claimant started work did not show an attitude that she did not want to continue with the claimant’s hire. Mrs Wilman thought it best to defer her start to enable her to complete her thesis. On 25 February 2022 the claimant raised issues around difficulties with hot desking in particular (paragraph 71). Naturally, Mrs Wilman needed time to think about the implications of the claimant’s requests particularly in the context of the looming pandemic. Although not arranged to the optimum, there was at least a desk provided for the claimant when she arrived on 21 April 2020 with lockable cupboards. She had sufficient to meet her needs that day as she was commencing her induction. She was not going to be involved in clinic work until the induction process was concluded. Further, a positive meeting had taken place on 5 February 2020 (paragraph 62).

[527]As is the case with the claim brought against the first respondent, there is no evidence from the claimant that a hypothetical non-disabled comparator would have been treated any better by the second respondent. We are satisfied from the evidence that Johanna Wilman would have treated a nondisabled comparator in the same or similar circumstances and presenting with the same abilities very much in the same way. There was no evidence to the contrary.

[528]Paragraphs 30 and 31 of the amended particulars of claim are directed at the actions of the first respondent (through Dr Whittaker). So too is paragraph 44 (which is the relevant pleading also for allegations 359.4(d) (e) and (f)). Save that it is alleged that Johanna Wilman decided (along with Dr Whittaker) not to tell the claimant immediately that they found out that the contract to provide psychology services was ending at the CDC these issues appear not to concern the second respondent. Upon the issue of informing the claimant of the closure of psychology services, a comparison is to be made with how the second respondent would have dealt with a non- 10.5 Reserved judgment with reasons – rule 61 99 March 2017 disabled comparator in the same circumstances as the claimant. There is nothing to suggest other than the second respondent would have left matters with the first respondent to deal with the comparator in their capacity as the first respondent’s employee. Redeployment and the redundancy process were a matter for the first respondent. There is nothing to suggest that the second respondent would have approached matters differently in the case of a non-disabled comparator.

[529]Nothing about the claimant’s dealings with the second respondent up to and including 21 April 2020 constitutes direct discrimination upon the grounds of disability. (We look at the allegation in paragraph 359.4(c) below).

[530]From the perspective of the harassment complaints against the second respondent identified at paragraph 359.4, the pre-21 April 2020 dealings with the second respondent cannot be said to be unwanted conduct. The claimant was, quite rightly, engaging with both respondents about arrangements for her to start work. The claimant in fact initiated the suggestion of deferring her commencement date in order to conclude her thesis. She also raised Covid concerns (quite properly) which again led to some caution in making arrangements for the claimant to commence work.

[531]We can go so far with the claimant as to accept that when she turned up at the CDC on 21 April 2020 there was unwanted conduct in that matters were not as well organised as she would have liked. For the same reasons as with the case against the first respondent, it is difficult to see how this was a violation of her dignity or the creation of an intimidating etc environment for her. These are strong words and in our judgment the state of affairs which presented on 21 April 2020 cannot be described as such. While inconvenient, the items stored on the desk were moved and a chair was found. In any case, to the extent that matters were disorganised this was unrelated to the claimant’s disability but entirely attributable to the difficulties which presented to the second respondent in organising an induction in the midst of a lockdown.

[532]The next issue is that of altering or attempting to alter the claimant’s job (359.4(b)). The matters pleaded in paragraph 27 in paragraph 360 appear to relate entirely to dealings between the first respondent and the claimant. We agree with Mr Grundy that it is not clear how that allegation is brought against the second respondent. As with the direct discrimination allegation discussed in paragraph 525, Mr Grundy fairly recognises that the claimant may be seeking to place reliance upon an email from Mrs Wilman to Dr Whittaker of 8 June 2020 to which we refer in paragraph 153. This has to be seen in the context of Lisa Moss’ departure and the second respondent’s decision not to recruit another band 8a psychologist. Matters had therefore moved on from how it was envisaged the claimant would work when she was recruited. As Johanna Wilman said (at paragraph 153) this was “new territory” for everybody.

[533]There is nothing to suggest that Mrs Wilman’s approach would have been any different had she been presented with a non-disabled band 6 clinical psychologist in the same circumstances. It was inevitable that everybody (including the claimant) was reacting to changing circumstances and altered perceptions as to how the claimant’s role was going to develop following 10.5 Reserved judgment with reasons – rule 61 100 March 2017 Lisa Moss’ departure and the decision not to recruit another band 8a clinical psychologist.

[534]It is difficult to see how Johanna Wilman subjected the claimant to harassment related to disability upon this issue. The Tribunal has little difficulty in accepting this to be unwanted conduct. We accept that the claimant did not want Lisa Moss to resign. Doubtless she was looking forward to working with her and gaining valuable experience. However, plainly her resignation and the consequences for the claimant were nothing to do with the claimant’s disability.

[535]Further, it was doubtless unwanted conduct for the second respondent not to decide to recruit a replacement band 8a. Again, however that was unrelated to disability and was down to difficulties which the second respondent had with recruitment of bad 8a psychologists and their decision to adopt a different approach. It is difficult to see how these decisions violated the claimant’s dignity or created an intimidating etc environment for her. She had the support of Dr Whittaker and Dr Jones. She was the only psychologist but all in the loop would recognise that to be the result of decisions taken by the second respondent’s management and not to be a reflection upon her.

[536]It was not unwanted conduct for Johanna Wilman to react to the changing circumstances and apply her mind as to how the claimant’s role was going to develop given those altered circumstances. Those considerations cannot in our judgment reasonably have the effect of violating the claimant’s dignity or creating an intimidating etc environment for her. On the contrary, for Johanna Wilman not to apply her mind to the claimant’s development in role would have had precisely those effects. The claimant would doubtless have complained had Johanna Wilman not given careful consideration to the claimant’s future with the respondents when working within the CDC in the light of the altered circumstances. Those circumstances and Johanna Wilman’s thoughts were nothing to do with the claimant’s disability and was everything to do with the effective provision of psychology services by the first respondent to the second.

[537]We shall now look at the allegation in paragraph 359.4(c) of direct discrimination and harassment brought against the second respondent concerning Johanna Wilman’s negative treatment towards the claimant and complaints that she made about her. These are pleaded in paragraph 35 of the amended particulars of claim.

[538]This pleading raises the matters in the email of 4 September 2020 which the claimant sent to Dr Whittaker. This is at paragraph 195.

[539]The claimant’s feeling that Johanna Wilman was negative towards her centres upon several matters. Firstly, on 23 April 2020 Mrs Wilman emailed the claimant to ask her where she was. She was expecting her to be at the CDC that day. We refer to paragraph 119. She appeared to be unaware of the email from the previous evening in which the claimant said that she was working from home that day (paragraph 115).

[540]The claimant also prays in aid in support of her case hostility towards her the circumstances that pertained when she attended the CDC on her first day at work. We have dealt with this already (see paragraph 531 above). 10.5 Reserved judgment with reasons – rule 61 101 March 2017

[541]Upon these matters, we see nothing wrong with Johanna Wilman’s email of 23 April 2020. We accept it to be short and to the point, but it did enquire of the claimant as to whether everything was alright. It was sent by her without having sight of the claimant’s email from the previous day informing Mrs Wilman that she was going to be working at home.

[542]For the reasons already given, while we accept that matters were not ideal as they presented on 21 April 2020, we have found that in the circumstances the second respondent acted reasonably in accommodating the claimant that day. We also find it to be a reasonable request made of the claimant by the second respondent to attend at the CDC as part of her induction to meet the team as best she was able in Covid times. What must not be lost sight of is that the second respondent was providing a face-to-face service with children of up to five years of age and that the induction was intended to enable the claimant to work as part of a multi-disciplinary team and provide that service. The claimant recognised the importance of this as she had agreed, during the second week of work, to go into the CDC on three occasions. We refer to paragraph 100.

[543]We agree with Mr Grundy when he says in paragraph 44 of his written submissions that there was a tension between Mrs Wilman’s expectations about how the induction should proceed at least in part in the office on the one hand and the claimant’s expectation of perception that it could all be done from home. The claimant’s understandable reluctance to go into the CDC and Mrs Wilman’s understandable wish for her so to do to make the induction effective was the kernel of the tension and dispute between them.

[544]We accept that Johanna Wilman found the situation with the claimant to be difficult and frustrating. She expressed her frustration to Julia Brown on 27 May 2020 (paragraph 151). This was done in intemperate terms contending that the claimant was “being very picky and won’t work until she has everything in place for her disability.”

[545]It is not clear to the Tribunal when the claimant found out about the contents of the email of 27 May 2020. She was not party to it at the time and must therefore have found out about it subsequently (either in the course of a subject access request or in the course of the litigation). Nonetheless, the claimant is entitled to complain of it and use it in aid of her case that Johanna Wilman treated her negatively and raised complaints about her. Although not expressly pleaded in paragraph 35 of the particulars of claim, the second respondent took no issue with the claimant’s case of Johanna Wilman’s negative treatment as including this email: see paragraph 42 of Mr Grundy’s submission.

[546]The claimant also prays in aid upon this issue the email of 28 September 2020 (at paragraph 217) in which Johanna Wilman says that in the light of notice having been served to end the contract the second respondent may not need to make adjustments. As we said in paragraph 217, Jane Saunders reminded Mrs Wilman that while ever the claimant was working upon the second respondent’s premises there was a duty to make reasonable adjustments.

[547]We accept that Mrs Wilman was unpleasantly surprised by the claimant’s perception of hostility towards the claimant on her (Mrs Wilman’s) part. We 10.5 Reserved judgment with reasons – rule 61 102 March 2017 accept that Mrs Wilman was genuinely upset by the email of 4 September 2020, otherwise she would not have engaged the help of Jane Saunders.

[548]We agree with Mr Grundy that there was no negative treatment of the claimant by Johanna Wilman generally and that she would have acted in the same way towards a non-disabled comparator. There is no evidence to suggest otherwise. The direct discrimination complaint against the second respondent fails.

[549]We can see nothing within Johanna Wilman’s conduct generally that amounts to unlawful harassment related to the claimant’s disability. We have dealt already with the issue around the circumstances that presented on 21 April 2020. We can accept that Mrs Wilman’s email of 23 April 2020 asking about the claimant’s whereabouts was unwanted conduct where the claimant thought that it had been arranged that she would work from home. However, this cannot reasonably be a violation of the claimant’s dignity or the creation of an intimidating etc environment for her. It was simply a misunderstanding where a very busy manager had overlooked notification as to what the claimant was doing on 23 April. In any case, Johanna Wilman’s conduct in eliciting information about the claimant’s whereabouts was not related to her disability.

[550]We can see nothing wrong with the sentiments expressed by Johanna Wilman about possibly not having to make adjustments following the second respondent’s decision to terminate the contract. It is we think unfair to characterise this as expressing relief at not having to be concerned with the making of adjustments any longer. There is nothing to suggest that Johanna Wilman would not have expressed herself in similar terms if the circumstances which presented had arisen concerning a non-disabled comparator. Simply asking whether adjustments were any longer required is in our judgment a reasonable response which while unwanted from the claimant’s perspective could not in our judgment reasonably be a violation of her dignity or the creation of an intimidating etc environment. Jane Saunders appraised Mrs Wilman of the situation and thereafter she carried on her dealings with the claimant such that she was ready to start clinical work by the end of October 2020.

[551]The Tribunal does take a different view however around the email of 27 May 2020. There is nothing to suggest that a hypothetical non-disabled comparator reasonably asking for adjustments would have been treated any differently, there being no evidence otherwise. We accept that Mrs Wilman found the situation stressful at a very difficult time and would have reacted in the same way with a non-disabled band 6 in similar circumstances. There is no evidence to the contrary. We do however take the view that this email constitutes harassment of the claimant related to disability.

[552]We accept of course that the claimant was not party to the email. However, that does not prevent her from pursuing a complaint of harassment upon it.

[553]To suggest that a disabled person is being “very picky” when seeking to get adjustments in place to enable them to provide an effective service is undoubtedly unwanted conduct from the perspective of the disabled person. On any view it relates to disability. The claimant’s need for adjustments arises out of disability. 10.5 Reserved judgment with reasons – rule 61 103 March 2017

[554]In our judgment, the remark could reasonably be considered to be a violation of the claimant’s dignity. We do not accept it to be the creation of an intimidating etc environment for her because the claimant found out about it only after she had left the respondent’s employment. No intimidating etc environment was therefore created for her.

[555]We accept that the word “violation” is a strong one. Standing back however we cannot see how it can be concluded other than that there was a violation of dignity in circumstances where a disabled person seeking reasonable adjustments is accused of being “very picky” when seeking to get them in place. In the final analysis, the claimant’s needs had been assessed by Access to Work which is a body independent of the respondents and the claimant. She was not making unreasonable demands. This aspect of the harassment complaint therefore succeeds.

[556]We find that Johanna Wilman did not use the impugned expression “very picky” with the purpose of violating the claimant’s dignity. It was not said to her directly. It did however have that effect.

[557]It is convenient, we think, to wrap up this section with a summary of our findings upon the allegations of direct discrimination and harassment against the second respondent starting with the allegation that there was a presumption that she had not provided the operational quality/competence required of the clinical psychologist, the soliciting of evidence to undermine her competency and/or admonishing her. This was pleaded in paragraph 44 of the amended particulars of claim. As such, the only issue there pleaded involving the second respondent is the decision of Mrs Wilman not to tell the claimant immediately that she knew that the contract was being terminated. This is of course unrelated to the issue of presumption of the claimant not providing a competent service. In so far as this claim is brought against the second respondent therefore it must fail.

[558]It is convenient next to deal with the allegation that the second respondent directly discriminated against the claimant or harassed her in relation to her disability by not informing her as soon as Johanna Wilman knew of the termination of the contract to provide psychology services. A decision was taken by the second respondent to leave matters in the hands of the first respondent to deal with the claimant in her capacity as an employee of the first respondent. This led to the first respondent proceeding to prepare an organisational change policy document in accordance with the first respondent’s procedure and submitted that staff side representatives before the claimant was informed. That is entirely a matter for the first respondent. It is difficult to see any basis upon which it can be said that a non-disabled comparator would have been treated any differently by the second respondent or that the second respondent’s decision to leave matters in the hands of the first respondent was in any way related to the claimant’s

[559]We can accept that the delay in telling her was unwanted conduct from the claimant’s perspective. It is difficult to see how it can reasonably be said to have been a violation of her dignity or to create an intimidating etc environment for her. Firstly, she was unaware that the decision had been taken until she was told about a month later (although there was in fact a suggestion that she had become aware independently of being formally 10.5 Reserved judgment with reasons – rule 61 104 March 2017 notified by the first respondent). It cannot reasonably be a violation of dignity or the creation of an intimidating etc environment for the deferral of notice to take place against a backdrop of the employer (the first respondent) complying with its own policies and procedures in preparing a business case for organisational change. In any case, none of this had anything to do with her disability and was brought about by the second respondent’s decision to end the contract.

[560]The final issue upon direct discrimination and harassment is the decision to terminate the contract to provide psychology services at the CDC, placing the claimant at risk of redundancy and not seeking her re-deployment and/or not including her in any service provision change. As with the same complaint against the first respondent, the service provision change allegation can easily be dismissed. We refer to paragraph 505.

[561]The decision to terminate the contract was that of the second respondent and was as a result of dissatisfaction with the first respondent’s services. There was evidence before the Tribunal that there was longstanding dissatisfaction. We refer to paragraph 220 of the reasons. Gillian Willers says in paragraph 21 of her witness statement that she had never met the claimant and that she was not a consideration in the decision to end the contract (paragraph 226). Similar evidence was given by Mrs Whitfield (paragraphs 227 to 229).

[562]There is nothing to suggest that a different decision would have been made by the second respondent had a non-disabled band 6 clinical psychologist been working within the CDC providing the same level of service as did the claimant. The evidence upon this issue points only one way – that the same decision would have been made.

[563]We have little doubt that the second respondent’s decision to end the contract was unwanted conduct from the perspective of the claimant. This directly led to her job being under threat. We can accept that this led to the creation of an intimidating etc environment for her given the inevitable job insecurity that resulted and also that she could reasonably perceive there to be a violation of her dignity as a consequence.

[564]However, the difficulty for the claimant is that there is simply no link between her disability on the one hand and the second respondent’s decision to bring the contract to and end on the other. It appears that she was not even on the radar of Gillian Willers and Vicky Whitfield. They took the decision because from their perspective the clinical psychology service model was broken and was not fit for purpose.

[565]The issues within this allegation about placing the claimant at risk of redundancy and not seeking her re-deployment are not matters for the second respondent. They are matters for the first respondent as the claimant’s employee. These have been dealt with already.

[566]It follows therefore that save for the one issue upon which she has succeeded, the claimant’s complaints of direct discrimination and harassment as against the second respondent fail and stand dismissed. 10.5 Reserved judgment with reasons – rule 61 105 March 2017 Section 15 complaint

[567]We now turn to the claimant’s complaint of discrimination for something arising from disability.

[568]The claimant says that the first respondent afforded her the unfavourable treatment in paragraph 359.6 and the second respondent that in paragraph 359.7. She says in each case that the unfavourable treatment was for something arising in consequence of her disability. The relevant “somethings” are the four matters listed in paragraph 359.8.

[569]On behalf of the first respondent, Miss Nowell accepts that those four “somethings” listed in paragraph 359.8 arise “out of the claimant’s accepted disabilities”. We refer to paragraph 72 of her written submissions. The “accepted disabilities” are those matters in paragraph 1 of Miss Nowell’s submissions. Those are the six disabilities in paragraph 359.1. In summary, therefore, the first respondent accepts the things listed in paragraph 359.8 to arise in consequence of the disabilities listed in paragraph 359.1.

[570]The Tribunal has already determined that the first respondent had actual or constructive knowledge of all of the disabilities listed in paragraph 359.1 prior to her commencing work on 21 April 2022 except for the Attention Deficit Disorder actual knowledge of which was acquired on 6 May 2020 (paragraph 133) and the PTSD actual knowledge of which was acquired on 22 April 2022.

[571]The issue that arises therefore upon the section 15 claim as against the first respondent is whether the claimant was subjected to unfavourable treatment in respect of the 13 items listed in paragraph 359.6 and if so whether the unfavourable treatment was because of the consequences of her disabilities.

[572]The same issues of course arise upon the section 15 claim brought by the claimant against the second respondent. There is no express concession upon the part of the second respondent that the things listed in paragraph 359.8 arise in consequence of disability. There is no issue raised by the second respondent, as we know, that the claimant is disabled for the purposes of the impairments listed in paragraph 359.1. We have determined as a fact that the second respondent had actual knowledge of dyslexia and a constructive knowledge of the other conditions (except the ADHD and the PTSD) by around 25 March 2020. Actual knowledge of the ADHD was given to the second respondent on 21 July 2020 (as accepted in Mr Grundy’s written submissions in paragraph 16(4)). We found that the second respondent acquired constructive knowledge of the PTSD the same say.

[573]For the avoidance of doubt, we find that the things listed in paragraph 359.8 arise out of the claimant’s disabilities. The Access to Work report confirm that the claimant required adjustments and auxiliary aids and adaptations to accommodate the disabilities referred to (summarised in paragraph 82 of these reasons).

[574]The dyslexia reports (at pages 861, 893 and 1635) alone are sufficient to satisfy the Tribunal that the dyslexia impacted the claimant’s ability to 10.5 Reserved judgment with reasons – rule 61 106 March 2017 process, understand, interpret analyse information and data and that she could not work as fast or as accurately as other employees.

[575]The D’Arcy Brown report confirmed that the claimant’s dyslexia left her liable to experiencing fatigue. We refer to paragraph 49.

[576]Gillian Seddon’s occupational health report confirm that the claimant’s dyslexia, CAPD and dyspraxia would lead to difficulties where there is a lot of background noise. We refer to paragraph 33.

[577]The Access to Work report made reference to dyslexia, dyspraxia, Central Auditory Processing Disorder, Attention Deficit Disorder and anxiety disorder (see paragraph 82). In short, we are satisfied upon the evidence that the things in paragraph 359.8 all arose in consequence of the claimant’s disability. The respondents had actual or constructive knowledge of all of these conditions by the end of March 2020.

[578]The first instance of unfavourable treatment which the claimant says arose in consequence of disability is made against both respondents. This is the allegation (as was made upon the direct discrimination and harassment claims) that they did not wish to continue with the claimant’s hire and questioned whether she still wanted her role with HR.

[579]We have determined on the facts that it is not the case that the respondents did not wish to continue with the claimant’s hire. We refer to paragraphs 479 to 493 above. There was accordingly no unfavourable treatment of her.

[580]It is the case that questions were raised by both respondents as to whether the claimant wished to continue in her role. It is difficult to see how this is unfavourable treatment of the claimant when she herself was questioning whether she wished to work for the respondents. It can of course be the case that an employer enquiring of an employee whether they still wish to work in the role may constitute unfavourable treatment depending upon the circumstances. Such an enquiry can on occasions amount to a nudge towards the exit door.

[581]Everything depends upon the context and the circumstances. Here, the parties were faced with a difficult situation. The pandemic blighted national life. It made matters difficult in terms of organising adjustments for the claimant. The claimant was anxious for her own health and that of her vulnerable brother. Matters were then compounded by Lisa Moss’ departure and the second respondent’s decision not to recruit another band 8a psychologist.

[582]The claimant was also involved in litigation which was triggering anxiety, depression and PTSD. We refer to paragraph 165. This went so far as to raise very serious and troubling thoughts (see paragraph 179).

[583]In these circumstances, it is hard to see how it can amount to unfavourable treatment of an employee or other worker to enquire whether the role was right for them. The claimant was facing working within the CDC without the anticipated support of Lisa Moss or another band 8a psychologist. Given the other pressures in her life (through Covid and the court case) it would be surprising were a conscientious employer not to enquire of an employee how they felt about matters. Indeed, it may well amount to a dereliction of duty to fail to do so. 10.5 Reserved judgment with reasons – rule 61 107 March 2017

[584]We can accept that some of the concerns raised by the respondents arose in consequence of the claimant’s disabilities. The respondents were well aware of them and, on our findings, were making arrangements to accommodate the claimant’s disabilities when she was able to start work. After the positive meeting of 5 February 2020, the claimant, on 25 February 2020, raised issues around hot desking and having a room booked out for her exclusive use. These requests arose out of the claimant’s disabilities to assist her with her work, to avoid noise and sensory overload and to avoid fatigue and anxiety as much as possible. That said, we find as a fact that the second respondents did not act in a manner consistent with not wanting to continue with the claimant’s hire and although they did question whether the claimant wanted the role this did not amount to unfavourable treatment in the circumstances.

[585]The next allegation of unfavourable treatment arising from disability raised against both respondents is that they altered or attempted to alter her job. We accept this to be unfavourable treatment of the claimant. We accept the claimant’s case, as we have said already, that the nature of her role changed given Lisa Moss’ resignation and the recruitment decisions taken by the second respondent. The role was turning out from the claimant’s perspective, not to be that which she thought she had bargained for.

[586]However, none of this was unfavourable treatment for something arising in consequence of disability. It was unfavourable treatment arising because of a career decision taken by Lisa Moss to move on and recruitment decisions taken by the second respondent not to recruit a replacement band a clinical psychologist. We accept of course that the claimant’s disabilities led to this being of great concern to her. That is however a consequence of the disability and not a consequence of the respondent’s unfavourable treatment of her because of something arising in consequence of it. Johanna Wilman’s thoughts in the email of 8 June 2020 (page 1423) about the claimant’s roles and responsibilities going forward were not as a consequence of the claimant’s disabilities but rather were a consequence of the altered picture faced by the parties in light of Lisa Moss’ resignation.

[587]The next issue raised against both respondents is presuming that the claimant had not provided the operational quality/competency required of a clinical psychologist, soliciting evidence to undermine the claimant’s competency and/or admonishing her for that. The relevant pleading is in paragraph 44 of the amended particulars of claim.

[588]For the reasons given already (see paragraph 557) we can quickly deal with the complaint against the second respondent as the only allegation in paragraph 44 pertaining to them relate to the decision of Dr Whittaker and Johanna Wilman not to inform the claimant immediately they knew the contract was coming to an end. We accept this to be unfavourable treatment of the claimant. She may reasonably consider that to be to her disadvantage. However, it had nothing to do with something arising in consequence of her disability and everything to do with the second respondent leaving it to the first respondent to manage their employee as they thought best. 10.5 Reserved judgment with reasons – rule 61 108 March 2017

[589]We can now turn to the allegations in paragraph 44 of the claimant’s pleaded case as against the first respondent upon the section 15 claim. It is difficult to see how Dr Whittaker’s recommendation that the claimant be re-deployed constitutes unfavourable treatment.

[590]The claimant herself was considering the possibility of an alternative clinical psychology role on 8 July 2020 (paragraph 166). Any consideration by Dr Whittaker of re-deployment at around this time cannot therefore reasonably be considered to be to the claimant’s disadvantage and be unfavourable treatment. Similarly, when the claimant was at risk for redundancy, it cannot constitute unfavourable treatment for an employer to look for reasonable suitable alternatives for the employee. On the contrary, an employer not considering alternative employment for an employee at risk of redundancy would be subjecting that employee to unfavourable treatment.

[591]In any case, the re-deployment process carried out after the second respondent ended the contract with the first respondent was not something that arose in consequence of the claimant’s disability. It arose in consequence of the exercise by the second respondent of their contractual right to bring relations with the first respondent to an end (at least in relation to the clinical psychology service). We accept that any earlier suggestion of re-deployment attributable to the claimant’s performance and suitability for the role arose in consequence of disability but, as we say, was not unfavourable treatment in any case given that the claimant was actively soliciting alternatives herself.

[592]The next issue upon the third allegation at paragraph 359.6(c) of unfavourable treatment for something arising in consequence of disability (as pleaded in paragraph 44 of the amended particulars of claim) centres upon Dr Whittaker’s comments to occupational health and to HR regarding the claimant’s competency to do the band 7 role. We do not accept this to be unfavourable treatment of the claimant. On the contrary, we find that Dr Whittaker was trying elicit from occupational health what steps may be taken to assist the claimant to fulfil her role. The performance concerns did arise in consequence of disability. This cannot be unwanted conduct. This action was undertaken by Dr Whittaker so that she may understand what adjustments may be required for the claimant.

[593]The final allegation in paragraph 44 of the amended grounds of complaint is that of Dr Whittaker’s alleged refusal to support the claimant in raising NICE guidance issues regarding the provision of psychology services at the CDC. We find as a fact that Dr Whittaker did not refuse to support the claimant. We refer to paragraph 497 above. There was therefore no unfavourable treatment and in any case the claimant raising the NICE guidance issue was unconnected with anything arising in consequence of her disability. The concerns which the claimant had were, quite properly, rooted in misgivings she had about the consequences of the second respondent’s decision to end clinical psychology input. It had no connection with her disability.

[594]The next issue which we shall consider is the allegation at 359.7(c) against the second respondent that Johanna Wilman treated the claimant negatively and complained that she was being harassed by the claimant. 10.5 Reserved judgment with reasons – rule 61 109 March 2017 We refer to paragraphs 537 to 556. We found as a fact that (with the one exception) Mrs Wilman did not treat the claimant negatively and was genuinely upset about the claimant’s email of 4 September 2020 hence her having recourse to her human resources function. It is difficult to see how Johanna Wilman seeking to avail herself of professional support in what was doubtless a difficult situation for her can constitute unfavourable treatment of the claimant. Mrs Wilman is entitled to avail herself of the support offered to her by her employer. It is not treatment in any sense directed towards the claimant.

[595]The claimant succeeded in her harassment complaint so far as it relates to Johanna Wilman’s comment made on 27 May 2020. The comment was made in the context of an email sent by Mrs Wilman to Julia Brown. It was not directed at the claimant and therefore we do not consider it to be unfavourable treatment of her for the purposes of the section 15 claim. It was of course a remark made by Mrs Wilman for something arising in consequence of the claimant’s disability as it related to the adjustments that she was seeking consequence upon them.

[596]The next contention in paragraph 359.6 raised by the claimant against both respondents upon her section 15 claim is the termination of the contract to provide psychology services at the CDC, placing the claimant at risk of redundancy, not seeking her re-deployment and/or not including her in any service provision change.

[597]As before, the service provision change issue can quickly be disposed of. There was no service provision change and therefore the claimant cannot have been unfavourably treated because of it.

[598]We accept of course that the decision to terminate the contract by the second respondent amounted to unfavourable treatment of the claimant. She was the one clinical psychologist affected by the second respondent’s move to end the contract. The second respondent was well aware of this. This was a decision taken by the second respondent and not the first respondent. The first respondent therefore did not treat the claimant unfavourably as they did not bring the contract between the respondents to an end.

[599]The first respondent then placed the claimant at risk of redundancy and dismissed her. This was not a matter for the second respondent. There was therefore unfavourable treatment of the claimant by the first respondent and not the second in this regard.

[600]We do not accept that the claimant was unfavourably treated upon the issue of re-deployment by the first respondent. On the contrary, we find that the first respondent made reasonable efforts to re-deploy the claimant but regrettably nothing suitable was found for her. Had the first respondent done nothing to seek to re-deploy the claimant then it would have been the case that she was unfavourably treated by them. That however was not the case.

[601]The difficulty for the claimant upon these issues is that although there was unfavourable treatment of her by the respondents (in different respects as we have described) this was not for something arising in consequence of disability. Rather, it was all a consequence of the second respondent’s 10.5 Reserved judgment with reasons – rule 61 110 March 2017 decision to terminate the contract between the respondents because of longstanding difficulties with the contract. We refer to paragraphs 220 to 250. This inevitably led to a situation whereby the first respondent reasonably concluded that the claimant was redundant as their need for a clinical psychologist working at the CDC on behalf of the second respondent had ceased or was expected to cease. None of this arises in consequence of the claimant’s disability.

[602]The next issue raised by the claimant against both respondents is of the failure to inform her as soon as they were aware of the termination of the contract to provide psychology services at the CDC. This is pleaded in paragraph 44 of the claimant’s amended particulars of claim. We accept this to be unfavourable treatment of the claimant. She will have wanted to know as soon as possible as this had a significant impact upon her career. However, the difficulty for the claimant again is that this unfavourable treatment was nothing to do with her disability or something arising from it. On the contrary, the delay was in consequence of the first respondent following their policy to make out a case for organisational change. The things arising in consequence of disability had no material bearing upon how the first respondent decided to handle matters pursuant to their policies.

[603]The next issue raised as against the first respondent only is of not dealing with the claimant’s grievance regarding the removal of the psychology services from the CDC in accordance with the first respondent’s grievance procedures. Again, we accept this to be unfavourable treatment. The claimant could consider reasonably that this was to her disadvantage. She had raised a grievance and wanted it to be dealt with. The first respondent refused so to do.

[604]Again, the difficulty for the claimant is that this was unconnected with anything arising in consequence of her disability. It was entirely dictated by the advice given to Linda Wilkinson by HR that the relevant grievance was not within scope of the first respondent’s grievance procedures.

[605]The next allegation as against the first respondent raised by the claimant pursuant to section 15 is that the first respondent notified potential departments with vacancies that it was prohibitive to consider the claimant as a candidate because of her need for reasonable adjustments and therefore her disabilities. This fails upon the fact for the reasons in paragraph 345.

[606]The next allegation against the first respondent raised by the claimant under section 15 is that she was not permitted to have unpaid time off instead of breaking her NHS continuous service which as a consequence meant that she was not eligible to receive a redundancy payment.

[607]We have seen from our factual findings that the first respondent was aware of the claimant’s need to complete her thesis. Indeed, both respondents were aware of this. That is why she was recruited at band 6. On 28 January 2020 the claimant said that she needed to spend time finishing her thesis. We refer to the emails at pages 950 to 955 referred to in paragraph 54 of these reasons. On 25 February 2020 (paragraph 67) she asked for a period of unpaid leave between 24 March and 10 April 2020 to work upon her thesis. 10.5 Reserved judgment with reasons – rule 61 111 March 2017

[608]In the management statement of case for the redundancy exercise (paragraph 322 of the reasons) it was noted that there was a gap in the claimant’s employment record between 2 February 2020 and 21 April 2020. We know that the claimant was allowed to leave her previous employment early. At paragraph 54 of the reasons, we said that the claimant had handed her notice in by 28 January 2020 and there was talk of her starting work on 16 March 2020. It follows therefore that the claimant’s current employer was not holding her to her two months’ notice period.

[609]On 5 February 2020 there was discussion about the claimant starting work on 2 March 2020. We refer to paragraphs 62 and 63.

[610]The first reference therefore to unpaid leave was on 25 February 2020 as we said in paragraph 67. Prior to that date, as we have seen (and pulling all of this together) there was talk of different commencement dates and the claimant had left her previous employment with effect from 2 February 2020. There was already therefore a gap in her continuity of employment of in excess of a week after 9 February 2020. In the circumstances we are compelled to agree with Miss Nowell in paragraph 76 of her written submissions where she says that, “the claimant herself had inadvertently allowed … a break [in continuity] before any requests for unpaid leave were made.” We therefore agree with the first respondent’s counsel that there was no unfavourable treatment in permitting the claimant to have unpaid time off so as not to break her continuity of employment. That ship had sailed by the time that the claimant raised the issue of unpaid leave on 25 February 2020.

[611]The next allegation raised under section 15 against the respondents is the requirement to work at the CDC rather than at home. This allegation is by reference to paragraphs 20 and 21 of the amended particulars of claim. It is confined to the period between 21 and 23 April 2020. We have found as a fact that while matters were not perfect by any means on 21 April 2020, sufficient steps had been taken by the second respondent to accommodate the claimant when she attended to work at the CDC that day. We accept there to be unfavourable treatment in that the claimant could reasonably have expected a better reception than that which she received. The difficulty for the claimant is that the unfavourable treatment was nothing to do with her disability but rather was a consequence of the difficult circumstances faced by the second respondent (in particular Johanna Wilman) during the course of that week.

[612]As we said in paragraph 106, we consider that the claimant is using hyperbolic terms when describing the events of 21 April 2020 as a disaster. There were challenges. We accept it was disappointing. However, with workarounds, the day progressed reasonably well to the extent that the claimant (as she said in paragraph 44 of her witness statement) accepted the day to have been positive.

[613]We do not accept that the requirement to work at the CDC on 21 April 2020 was unfavourable treatment of the claimant. As has been said, it was part of the second respondent’s desire for the claimant to have an effective induction as part of a multi-disciplinary team. Johanna Wilman was concerned that the claimant could not provide an effective service working exclusively from home. As the claimant wished to progress in her role, it is 10.5 Reserved judgment with reasons – rule 61 112 March 2017 difficult to see how being asked to complete an effective induction can constitute unfavourable treatment.

[614]The claimant was in fact permitted to work from home on 22 April 2020. There was then the email of 23 April 2020 from Johanna Wilman enquiring of the claimant’s whereabouts. We refer to paragraph 120. We do not accept that Mrs Wilman’s enquiry soliciting the whereabouts of the claimant amounts to unfavourable treatment. Even if it does, it was nothing to do with anything arising out of the claimant’s disabilities but rather because of a misunderstanding on Johanna Wilman’s part as to whether the claimant was meant to be working on 23 April. The claimant was permitted to work from home on 23 April anyway.

[615]The next allegation raised against the first respondent is of a failure to provide a proper reference. This relates to paragraph 55A of the amended particulars of claim and concerns the reference given to Action for Children. We refer to our factual findings at paragraphs 330 to 333. We can accept this to be unfavourable treatment of the claimant. When contrasting Dr Whittaker’s reference with that furnished by Mr Jones (at paragraph 334 of the reasons) one can see how the claimant could reasonably consider Dr Whittaker's reference provided for Action for Children to be to her disadvantage.

[616]The difficulty for the claimant upon this issue is to show a causal link between that and something arising in consequence of disability. The reason why Dr Whittaker could not complete the reference in full was because she did not consider that she had sufficient evidence from which she could properly rate the competences. There is much, we think, in the point put to the claimant by Miss Nowell in cross-examination that Dr Whittaker was not “on the ground” working alongside the claimant at the CDC. We refer to paragraph 332 of the reasons. The reason Dr Whittaker completed the reference as she did for Action for Children was not because of anything arising in consequence of the claimant’s disability but rather because of her perception that she was unable so to do because of the paucity of evidence which she had about the claimant’s performance in role.

[617]The next allegation raised against the first respondent under section 15 is of dismissing the claimant for the alleged reason of redundancy. We accept that the claimant was redundant. As we have said several times, the role which she was engaged to undertake by the first respondent had ceased or was expected to cease because of the termination by the second respondent of the contract between the respondents to the claim. Plainly, this was unfavourable treatment of the claimant. However, it was simply nothing to do with anything arising in consequence of her disability. It was everything to do with the position in which the first respondent found themselves following the termination decision made by the second respondent.

[618]The final section 15 allegation raised by the claimant against the first respondent is that the first respondent did not pay to the claimant a redundancy payment. We accept this to be unfavourable treatment of the claimant. However, it was nothing to do with anything arising in consequence of the claimant’s disability. Rather, it was because the 10.5 Reserved judgment with reasons – rule 61 113 March 2017 claimant had a break in continuity and did not have an entitlement to a redundancy payment because her continuity of service was too short.

[619]It follows therefore that all of the complaints raised by the claimant against the respondents fail and stand dismissed. No issues of justification arise as the claimant has not made out her case that she was unfavourably treated for something arising in consequence of disability. Victimisation

[620]We now turn to a consideration of the claimant’s complaints of victimisation. The protected acts relied upon by the claimant are at paragraph 359.11. The claimant says that she did protected acts on 28 September 2019 (paragraph 23), 20 December 2019 (paragraph 33) and 23 April 2020 (paragraph 120) in telling the first respondent that she was disabled with various medical conditions.

[621]We accept in principle that the provision of such information may be a protected act. By section 27(2), as we have said, a protected act extends (by section 27(2)(c)) to the doing of things (other than the bringing of proceedings or giving evidence or information in connection with proceedings under the 2010 Act) for the purposes of or in connection with the 2010 Act. We have little difficulty in finding that informing an employer of the fact of disability for the purposes of section 6 of the 2010 Act is the doing of a thing for the purposes of or in connection with the Act.

[622]The first respondent accepts the claimant to have informed them of her disabilities on the dates in question. The second respondent accepts disclosures to have been made to the first respondent on 28 September 2019 and 20 December 2019 (by reference to paragraph 78 of Mr Grundy’s written submissions). However, he puts in issue which disclosures relied upon in relation to 23 April 2020.

[623]The latter was the date upon which the claimant spoke to Dr Whittaker about CPTSD. We refer to paragraph 120 of the reasons. The claimant also made mention of her disabilities in an email of the same date at pages 1179 and 1180 (paragraph 122). The claimant refers to anxiety and CPTSD in her email of 22 April 2020. We are satisfied therefore that she told the first respondent of at least some of her disabilities that day and therefore did a protected act within the meaning of section 27(2)(c) of the 2010 Act.

[624]As far as the second respondent is concerned, the disclosure by the claimant dated 28 September 2019 was of those disabilities referred to in her application form. Mrs Wilman attended the interview. We were not told expressly but it appears likely that she will have had a copy of the claimant’s application form before her when the interview took place in October 2019. We find therefore that the second respondent knew of this protected act.

[625]There is no evidence that the occupational health report of 20 December 2019 was sent by the first respondent to the second respondent (or for that matter by the claimant to the second respondent). The email of 23 April 2020 at pages 1179 to 1181 was not copied to the second respondent.

[626]We find that the second respondent did not know of the two protected acts of 20 December 2019 and 23 April 2020. However, as Mr Grundy says, in any case, the second respondent was aware that the claimant had dyslexia 10.5 Reserved judgment with reasons – rule 61 114 March 2017 in any case and therefore she did a protected act by informing the second respondent of disability at around the time of her application for the post (via the application form and in interview).

[627]The claimant contends that the first respondent and the second respondent subjected her to the detriments set out in paragraphs 359.6 and 359.7 for having done those protected acts.

[628]The claimant also relies upon the grievance of 8 December 2020 as a protected act. There were two grievances of that date. We presume that the claimant relies upon the one about the failure to make reasonable adjustments which is of course the making of an allegation of a contravention of the 2010 Act and therefore capable of being a protected act pursuant to section 27(2)(d) of the 2010 Act.

[629]The first respondent accepts that grievance to be a protected act. There appears to be no complaint raised against the second respondent about a failure to make reasonable adjustments in this grievance. The grievance was dealt with by the first respondent. The second respondent was not involved in any way. We did not accept therefore that the grievance of 8 December 2020 was a protected act as far as the second respondent was concerned.

[630]Upon that basis, in so far as the claimant raises complaints of detriment against the second respondent in paragraph 359.7 upon the basis of the grievance of 8 December 2020 the claim must fail. In so far as the claims made against the first respondent are concerned upon the basis of the grievance of 8 December 2020 it follows, naturally, that the claimant can only pursue complaints of victimisation upon the basis of that grievance from on and after 8 December 2020. The complaints at paragraph 359.6(a) to (f), (i) and (j) must fail therefore as they all arise out of events pre-dating 8 December 2020.

[631]In so far as the protected act of 8 December 2020 is concerned, we shall deal firstly with the allegation that the claimant’s grievance regarding the removal of psychology from the CDC was not dealt with in accordance with the first respondent’s grievance procedures. We refer to paragraphs 299 above. We are satisfied that the reason why Linda Wilkinson refused to deal with that grievance is because of advice given to her by HR that the grievance fell outside the scope of the first respondent’s procedures. It was unconnected with the fact that the claimant raised another grievance on 8 December 2020 raising an allegation that the first respondent was in breach of the duty to make reasonable adjustments. A favourable inference is drawn in favour of the first respondent upon the basis that a thorough investigation under the auspices of an independent investigator was carried out by them in relation to the reasonable adjustments grievance. It follows therefore that the refusal to entertain the claimant’s grievance regarding the removal of psychology from the CDC was unconnected with the claimant doing a protected act on 8 December 2020.

[632]The next allegation of victimisation raised against the first respondent based upon the protected act of 8 December 2020 was of notifying potential departments with vacancies that it was prohibitive to consider the claimant as a candidate because of her need for reasonable adjustments and 10.5 Reserved judgment with reasons – rule 61 115 March 2017 therefore her disabilities. For the reasons already given in paragraph 605 this fails on the facts.

[633]The allegation was of a failure to provide a proper reference for Action for Children. We refer to our conclusions at paragraphs 615 and 616 above. We are satisfied that the reason why Dr Whittaker proceeded as she did was because she did not consider that she could complete a faithful and accurate reference for Action for Children based upon a paucity of evidence. It was unconnected with the grievance of 8 December 2020 about an alleged failure to make reasonable adjustments. Dr Whittaker of course knew of that grievance as she had been interviewed in connection with it prior to being requested to provide the Action for Children reference. However, we are satisfied that her mental processes were such that the doing of the protected act can be ruled out as an influence.

[634]The allegation of dismissing the claimant for redundancy and not paying the claimant a redundancy payment are in our judgment, unconnected with the protected act of 8 December 2020. There is simply no evidence that Mr Easthope was in any way influenced to dismiss the claimant for redundancy or deny her a redundancy payment because she had raised a complaint on 8 December 2020 of the failure by the first respondent to make reasonable adjustments for her. It was not put to him that the claimant was dismissed for redundancy because of the grievance of 8 December 2020. Mr Easthope was asked about that grievance and he said that he was aware of it. However, it was not put to him in terms that he was influenced to dismiss her because of it. Similar reasoning applies in relation to the refusal of a redundancy payment which was entirely down to the claimant not having the requisite continuity of service to qualify for one.

[635]We must now consider the victimisation claims raised against each respondent upon the basis of the protected acts of the claimant informing them of her disabilities. The first issue raised against each respondent is that they did not want to continue with the claimant’s hire and questioned whether she wanted her role with HR. For the reasons already given upon the other complaints raised by the claimant upon this issue these allegations fail. The first respondent recruited the claimant (and the second respondent was party to the recruitment process) in knowledge of the claimant’s disability. From this may be drawn a strong inference that it cannot be said that they didn’t wish to continue with the hire of her because she told the respondents about them.

[636]The next contention is that the respondent altered or attempted to alter the claimant’s job. For similar reasons to those already given we are satisfied that the alteration of the job was unconnected with the claimant doing the protected acts of notifying the respondents of the fact of her being disabled. The shifting sands of her role was entirely attributable to external factors in particular Lisa Moss’ resignation and the second respondent’s decision not to recruit for a band 8a role. Again, an inference is drawn in favour of the respondents given their recruitment of the claimant with knowledge of her disabilities.

[637]The next allegation against each respondents is that they presumed that the claimant had not provided the operational quality/competency required of a clinical psychologist, soliciting evidence to undermine her competency 10.5 Reserved judgment with reasons – rule 61 116 March 2017 and/or admonishing her for the same. For the reasons already given, these complaints fail as allegations of victimisation. Far from victimising her for having raised the fact that she was at the material time a disabled person for the purposes of section 6 of the 2010 Act, Dr Whittaker was seeking to assist the claimant by obtaining occupational health advice as to the adjustments required for her.

[638]The next allegation against both respondents is that the claimant was victimised by the second respondent’s decision to terminate the contract to provide psychology services at the CDC, placing the claimant at risk of redundancy, not seeking her re-deployment and/or not including her in any service provision change.

[639]For the reasons already given (see paragraph 353) no issue arises of service provision change in any case. We have found as a fact that the first respondent did seek to re-deploy the claimant and therefore this allegation fails upon the facts.

[640]The second respondent’s decision to terminate the contract with the first respondent was unconnected with the fact that the claimant had notified the respondents of her status as a disabled person for the purposes of the 2010 Act. We have already observed that the decision makers within the second respondent were unaware of the claimant and uninfluenced by her characteristics.

[641]It is the case that the first respondent placed the claimant at risk of redundancy. That was nothing to do with the disclosure by way of a protected act of the fact of her disability. The first respondent did this because the claimant was indeed at risk of redundancy given the second respondent’s decision.

[642]The next allegation of victimisation levelled against the respondents is that they did not inform the claimant as soon as they were aware of the termination of the contract to provide psychology services at the CDC. For similar reasons as those already given, this was unconnected with the claimant’s protected acts in disclosing her disabled status. The mental process of those involved in the matter was entirely dictated by the first respondent’s wish to pursue its internal policies to make out a case for organisational change.

[643]The final allegation raised against each respondent of victimisation is requiring the claimant to work at the CDC rather than from home. For similar reasons as upon the section 15 complaint this allegation must fail. We refer to paragraphs 611 to 613. The reason why the claimant was being asked to work at the CDC was in an attempt to get the most out of the induction process given the role that the claimant was recruited to fill. It is difficult to see any connection between the claimant disclosing the fact of her disability on the one hand and the decision for her to work in the CDC during the week of 21 April 2020 on the other.

[644]The next victimisation complaint made against the first respondent alone (based upon the protected acts in disclosing her disability status) is a refusing to support the claimant in raising NICE guidance issues regarding the provision of psychology services at the CDC. For the reasons already given this contention must fail upon the facts. There was no connection with 10.5 Reserved judgment with reasons – rule 61 117 March 2017 Dr Whittaker’s approach about the issue of NICE guidance on the one hand and the protected acts of 28 September 2019, 20 December 2019 and 23 April 2020 on the other.

[645]The next allegation against the first respondent alone arising out of the protected acts of 28 September 2019, 20 December 2019 and 23 April 2020 is of not dealing with the claimant’s grievance regarding the removal of psychology from the CDC in accordance with the first respondent’s grievance procedures. This fails upon the same basis as the victimisation allegation arising out of the 8 December 2020 grievance. It arose out of Mrs Wilkinson’s understanding following HR advice of the first respondent’s grievance procedure.

[646]The next allegation raised against the first respondent arising out of the protected acts of 28 September 2019, 20 December 2019 and 23 April 2020 is that notification was given to potential departments with the vacancies that it was prohibitive to consider the claimant as a candidate because of her need for reasonable adjustments and therefore her disabilities. This contention fails upon the facts for the reasons already given in paragraph 605.

[647]The next allegation which we must consider is of not permitting the claimant to have unpaid time off instead of breaking her NHS continuous service. This fails on the fact for the reasons given in paragraph 610 above. We can see no causal connection between the claimant notifying the first respondent of her status as a disabled person on the one hand and the break in continuity brought about by the claimant’s own actions on the other.

[648]The final three allegations raised against the first respondent arising out of the disclosure of her status as a disabled person are of a failure to provide a proper and unfavourable reference for Action for Children, the dismissal of the claimant for redundancy and the refusal to pay her a redundancy payment. These allegations fail upon the same basis as those based upon the protected act of 8 December 2020. There is simply no causal connection between the claimant’s disclosure of her disabled status on the one hand and the provision by Dr Whittaker of a reference for Action for Children, the dismissal of the claimant for redundancy and the refusal to pay her a redundancy payment on the other.

[649]The only allegation of victimisation made against the second respondent only based upon the protected acts of the disclosure by the claimant of her disabled status is that of Johanna Wilman’s negative treatment towards her and the complaints made by Johanna Wilman about the claimant that she felt harassed. Save in the connection with the “being picky” email of 27 May 2020 the allegation that Johanna Wilman was negative towards the claimant fails on the facts for the reasons already given in paragraphs 537 to 556 above. The reason why Johanna Wilman complained about the claimant harassing her was because she was genuinely surprised about the 4 September 2020 email from the claimant and sought, as she was entitled, advice from her human resources function. We can see no connection with the claimant’s disclosure of her disabled status.

[650]We are satisfied that Johanna Wilman’s complaint that the claimant was being picky was not an act of victimisation but rather was an act of harassment related to the claimant’s disability. She did not make the remark 10.5 Reserved judgment with reasons – rule 61 118 March 2017 that she did because the claimant had disclosed her disabled status to her. A favourable inference is drawn in her favour that she was making real efforts to accommodate the claimant. The unguarded remark about the claimant being “very picky” was one borne out of frustration as her attempts to accommodate the claimant were being frustrated by delays. She did not make the pejorative remark because the claimant had disclosed her disabled status to her.

[651]It follows therefore that the complaints of victimisation fail and stand dismissed. Reasonable adjustments

[652]We now turn to the reasonable adjustments complaint. This is at paragraphs 359.13 to 359.30 of the list of issues.

[653]The first provision criterion or practice is the requirement for the claimant to fulfil the full duties of her contractual role. There is some ambiguity around this PCP. If taken as referring to all of the duties in her job role, this PCP was applied to the claimant but only from 29 October 2020 when she started to undertake clinical work. We refer to paragraph 267.

[654]The first respondent accepts that this PCP (as interpreted per paragraph 653) placed the claimant at a substantial disadvantage as a disabled employee in comparison with non-disabled comparators. An element of her full contractual duties was to write client reports quickly and accurately. The occupational health recommendations at paragraph 34 were all aimed at assisting the claimant with her written work. Assistance with written work was very much the focus of the three reports which the claimant sent to Dr Whittaker on 15 January 2020 (paragraph 43). In her report of 27 July 2020, Julie Daughtrey said that the claimant would benefit from the facility to work from home, “especially to do reports which require more intense concentration.” We refer to paragraph 183. Vivien Thompson recommended (on 17 December 2020) offering the claimant flexible working patterns and incorporating “microbreaks” into the claimant’s working day. She said that the claimant was currently able to undertake her usual hours and duties (paragraph 302).

[655]Nothing within the medical opinions which we have seen contraindicates the claimant working at the CDC from time to time in order to undertake clinical duties.

[656]Within the hearing bundle is a job description for the role of band 7 clinical psychologist (commencing at page 286). None of the parties referred the Tribunal to this document. There appears to be no job description for a band 6 clinical psychologist. We infer that the job description, if there were to be one, would be in very similar terms to that of the band 7 clinical psychologist. This is because the only reason that the claimant commenced at band 6 was that she needed to complete her thesis in order to qualify for registration with the HCPC. The principal duties are clinical, entailing providing specialist psychological and neuropsychological assessments of service users, the carrying out of complex assessments and the formulation and implementation of plans for the formal psychological treatment and the management of service users’ problems. 10.5 Reserved judgment with reasons – rule 61 119 March 2017

[657]We agree with Miss Nowell that the PCP of requiring the claimant to fulfil all of her duties was not applied to the claimant until the end of October 2020 and even then, only part of it (the requirement to undertake written work) placed the claimant at a substantial disadvantage. The first respondent had knowledge of the substantial disadvantage caused for the claimant by the requirement to fulfil her contractual duties. Dr Whittaker received a copy of Gillian Seddon’s report in early January 2020 (paragraph 36). The claimant also sent to Dr Whittaker the three medical reports referred to in paragraph 43 on 15 January 2020. The first respondent therefore had the duty to make reasonable adjustments when the claimant started to fulfil the full duties of her contractual role.

[658]It is of course possible to interpret the expression “full duties of her contractual role” in the first provision criterion or practice in a wider sense than that ascribed to it by Miss Nowell. This appears to have been the approach of Mr Keen and Mr Grundy as they both consider the application of that provision criterion or practice to the claimant from 21 April 2020. In this sense, the PCP ought properly to read as the “full duties of her contractual role from time to time.” We shall look at the first PCP in this wider sense.

[659]The claimant attended to work to work at the CDC for her induction on 21 April 2020, and then, as we know, was to work from home the next day.

[660]We accept that the first respondent had actual knowledge of the claimant’s need for a quiet area to work by reference to Gillian Seddon’s report (in particular at paragraph 34 of these reasons). We also find that the second respondent had constructive knowledge of the claimant’s conditions following receipt by Johanna Wilman of the Access to Work report in March 2020. Further, there had been email correspondence in February 2020 involving Johanna Wilman which the claimant had raised issues about her equipment, the need for storage of it and concerns around hot desking. We refer to paragraphs 63 to 72.

[661]We do not accept Mr Grundy’s submission that the second respondent did not impose a requirement upon the claimant to fulfil her contractual role. We accept of course that the contractual relationship was between the claimant and the first respondent. The claimant was supplied to work by the first respondent when employed by the first respondent and in furtherance of a contract between the respondents. It would emasculate the duty upon the principal in a contract worker arrangement to make reasonable adjustments were it to be an answer to such a claim that there was no contractual relationship between the principal and the contract worker. The matter must be interpreted purposefully. What was it on the ground that the principal required the contract worker to do? Here, of course, it was to work as part of the multi-disciplinary team and to initially go through an induction working up towards seeing clients at the CDC in a clinical setting.

[662]As Miss Nowell said in paragraph 98 of her written submissions, by reference to the case of Burke v(1) The College of Law and

(2) The Solicitors Regulation Authority [2011] UK EAT 0301/10 that a holistic approach to reasonable adjustments should be taken. This involves a consideration of whether or not any adjustment would be reasonable in the light of all other adjustments provided. We also might add that matters must 10.5 Reserved judgment with reasons – rule 61 120 March 2017 be looked at in context as to what the employee or worker was required to do at the material time.

[663]There is no dispute of course that not all of the equipment recommended by Access to Work had been acquired by 21 April 2020. However, the claimant was starting work that day and was expecting to go through an induction that week and the following week. She did not need all of the equipment at that point.

[664]There was nothing within the medical reports to contraindicate the claimant attending the CDC. The claimant was naturally concerned because of the pandemic. As we record in paragraph 102, arrangements were made for Mrs Wilman to meet with the claimant and to manage the induction with social distancing. Concerns around hot desking were alleviated by the provision of a desk for the claimant with a lockable facility. As we have said before, it is unfortunate that the desk assigned to the claimant was being used for the storage of items but these were simply moved away.

[665]The issues caused by the claimant having a wall facing desk were significantly ameliorated by the fact that barely anybody else was in the CDC because of the effects of the pandemic. As Tarbucks v Sainsbury’s Supermarkets Limited

[2006] IRLR 664

establishes, the test of whether or not an employer has complied with obligations to make reasonable adjustments is an objective one. If the employer does what is required, then the fact that there was a failure of consultation or some other flaw in a process is immaterial. Entirely fortuitous and unconsidered compliance is enough.

[666]We accept therefore that a duty arose upon each respondent to make reasonable adjustments when the claimant attended the CDC on 21 April 2020. We accept that each had knowledge of the disadvantage caused to the claimant by the requirement to attend the CDC. We accept that the second respondent made adjustments. A desk with security facilities was found. The claimant’s concerns about having a wall facing desk were ameliorated by the fact that barely anybody else was in. The claimant was supplied with and had the equipment which she needed to undertake duties that day. (Some of these were of course her own).

[667]The claimant was allowed the facility to work from home the following day. This was of course one of the adjustments contemplated by occupational health and which was implemented by the respondents. We refer to paragraph 115.

[668]It is the claimant’s pleaded case (in paragraph 21 of her amended particulars of claim) that her experience on 21 April 2020 triggered her anxiety and CPTSD. It will be recalled that the claimant mentioned PTSD to Gillian Seddon (paragraph 35) but that this condition did not find its way into Gillian Seddon’s report. It was for this reason that Dr Whittaker said in her witness statement that she had not appreciated that the claimant had CPTSD until 22 April 2020 (paragraphs 117 and 456).

[669]Given the state of the respondents’ knowledge of the claimant’s condition on 21 April 2020 it is our judgment that the respondents made reasonable adjustments to accommodate the claimant’s work at the CDC that day. The adjustments were undertaken by the second respondent of course. The 10.5 Reserved judgment with reasons – rule 61 121 March 2017 respondents did not know and could not reasonably have known of the PTSD. Even if we are wrong to find that the respondents did not know or could not reasonably have known of the PTSD before 22 April, there was nothing to put them on notice of the risk of the claimant experiencing a triggering of it should all of the recommended adjustments not have been made prior to her commencement of work (even though not all of them were required anyway for the duties she was to do in her induction).

[670]As Mr Keen said in paragraph 63 of his submissions, either respondent may discharge their duty. Until one of them does so then the obligation rests upon both. It follows therefore that the second respondent discharging the duty to make reasonable adjustments on 21 April 2020 is sufficient to satisfy the duty owed by the first respondent as well. Upon this basis, we do not accept that there was any failure upon the part of either respondent to make reasonable adjustments in particular on 21 April 2020.

[671]It is right to say that the claimant had an adverse reaction to the events of that day precipitating a period of absence from work until 18 August 2020. This cannot be attributed to any failure on the part of the respondents to make reasonable adjustments for the reasons given in paragraph 670.

[672]The question that then arises is whether the claimant was fit to work pending the respondents making the reasonable adjustments which had been recommended by Access to Work which had been agreed with the claimant. On 7 May 2020 advice was received by the first respondent to the effect that effort should be made to ascertain the claimant’s fitness pending the adjustments (paragraph 135). This is because the claimant had expressed concerns around Covid. Further, (and although this was not known by the first respondent at the time) there was a pending court case which was plainly having an effect upon the claimant. We refer to paragraphs 164 and 179 in particular.

[673]There is no medical evidence upon which basis the Tribunal can be satisfied that had the respondents made the adjustments quicker the claimant would have been fit for work sooner than 17 August 2020. There is nothing from her general practitioner to this effect. Julie Daughtrey’s occupational health report does not give evidence to this effect. There is also no medical evidence that the events of 21 April 2020 triggered PTSD such as to render her unfit for work for a period of around four months. The claimant ascribed her mental health issues to the ongoing litigation in which she was involved (paragraphs 164, 179 and 582). Even if we are wrong in this conclusion, the PTSD incapacitating the claimant form work did not arise out of any breach of duty to make reasonable adjustments anyway as the respondents had no actual or constructive knowledge of the PTSD.

[674]It follows therefore that there was no failure by the respondents to make reasonable adjustments for the period between 23 April 2020 and 17 August 2020 in any case. The claimant was simply unfit to work and there were no adjustments which could have been made by the respondents to ameliorate the disadvantage caused to her by the respondents’ requirements for her to fulfil her contractual duties at that time. (Of course, she was still undergoing her induction, this having been effectively postponed after just two days of work). Adjustments had been made in April 2022 which were reasonable for the induction period given the state of the 10.5 Reserved judgment with reasons – rule 61 122 March 2017 respondents’ knowledge. She was then absent for almost four months which was not attributable to any breach of the respondents’ duties to make reasonable adjustments. The claimant’s case that she was ready to ‘hit the ground running’ with reasonable adjustments therefore cannot be accepted. She was a level 6 psychologist when she started. The loss of Lisa Moss was a big blow to all three parties in this case. The second respondent’s decision to end the contract with the first respondent was borne of longstanding frustration with their performance which pre-dated the claimant’s employment by some years. It is against the probabilities that the second respondent’s decision would have been different even if the claimant had been able to perform her role from April 2020, given the history of maters and her inexperience starting as a level 6 psychologist. Her absence from April 2020 did not help matters but was not attributable to any breach of duty on the part of the respondents anyway.

[675]With effect from 18 August 2020 until 27 August 2020 the claimant was allowed to work from home. We refer to paragraph 186. Reasonable adjustment were therefore made for this period. There was no suggestion from the claimant that she could not do the contractual duties required of her at this time without further adjustments over those described in paragraphs 359.23 all of which we find were made to the extent that was reasonable. She was then on annual leave between 28 August and 7 September 2020.

[676]Following her return from annual leave the plan was for her to gradually increase her hours until she was able to work the full four days per week with effect from the end of September. We refer to paragraph 189. The history of matters from around 10 September 2020 is recorded in the reasons at paragraphs 201 to 216 and from paragraph 254 to paragraph 270.

[677]As we said in paragraph 267, the claimant started doing clinical work on or around 29 October 2022.

[678]Mr Keen submits that following the claimant’s return to work on 18 August 2020 the second respondent (through Mrs Wilman) “had not done a great deal to prepare for the claimant’s return.” He submits that, “the result was that the claimant did not have what she needed when she resumed work. There was no computer, the software had not been installed, she did not have a quiet space that she could use, no WRAP had been devised, she did not have at her desk near her storage facilities or admin support. The staff had not received any disability awareness training.”

[679]As we have said, the claimant’s return to work from 18 August 2020 was initially to pick up from where she had left off with her induction working up gradually to starting to see clients. We consider Miss Nowell’s point to remain valid that the claimant was not expected to fulfil the full requirements of her duties until 29 October 2020, but we do accept Mr Keen’s case that what was expected of the claimant from 18 August 2020 (particularly after her annual leave) materially disadvantaged her because of her disability. There was ample material (including from the claimant’s disability passport detailed at paragraph 173) and the occupational health report that the claimant’s concentration was impacted by her disability. This alone created a substantial disadvantage for which adjustments would be required. There 10.5 Reserved judgment with reasons – rule 61 123 March 2017 is also no issue that by mid-August 2020 both respondents were well aware both of the claimant’s disabilities and the disadvantage caused to her by them.

[680]In paragraph 359.23 are listed eight suggested reasonable adjustments. The claimant says that individually or cumulatively these had a prospect of ameliorating the substantial disadvantage. We shall look at these holistically across the period from 17 August 2020.

[681]The first of these is allowing the claimant to take regular breaks. The respondents appear to take no issue that this was a reasonable adjustment. The first respondent’s counsel expressly says so in paragraph 111 of her written submissions. The second respondent’s counsel does not expressly say so but does not appear to take issue with the reasonableness of it in paragraph 92 of his submissions.

[682]We find as a fact that this adjustment was made. When working from home, as she accepted in cross-examination, the claimant was able to take breaks as and when she needed them. When at home she was working autonomously. There was nothing to stop her taking breaks. An agreement for the claimant to take breaks was noted in the tracker produced at the end of September 2020 (paragraph 219). Also in paragraph 219, the Tribunal observed that the claimant had agreed in cross-examination that the taking of breaks was permissible.

[683]The second reasonable adjustment contended for was the setting out of the requirements of the claimant’s job role, remit and duties. We have already observed that no job description was issued to the claimant. That said, there were many meetings at which the expectations made by the respondents of the claimant were discussed. The claimant had extensive involvement in the evolution of the trackers.

[684]There were of course difficulties with the role presented by Lisa Moss’ resignation and the second respondent’s decision not to recruit another band 8a clinical psychologist. The implications for the claimant of this were discussed in particular on 30 June 2020 (paragraph 164). We therefore find as a fact that the respondents did routinely and regularly appraise the claimant of all that was expected of her in role. A detailed discussion of how her role was evolving also featured as a standing item in the weekly meeting of Dr Whittaker which were convened after she returned to work in August 2020.

[685]The third adjustment contended for was the provision of adequate daily supervision and clear instructions of what was expected of the claimant. We agree with the respondents that this was not a reasonable adjustment to make. As we have just observed, when she returned to work in August 2020 the claimant then had weekly meetings with Dr Whittaker. Supervision and support were also provided by Mr Jones. Daily supervision was not requested by the claimant. Significantly, on 20 November 2020, the claimant said that she was unable to identify any more professional support than that which had been provided (paragraph 293).

[686]The next adjustment contended for is the provision to the claimant of agendas, minutes and action points for meetings. This was requested by the claimant on 15 July 2020 (paragraph 173). 10.5 Reserved judgment with reasons – rule 61 124 March 2017

[687]We agree with Miss Nowell that the weekly meetings which the claimant had with Dr Whittaker following her return to work in August in 2020 followed a set agenda. There were standing items upon it. The claimant was also sent the outcome of the meetings. To that extent therefore this adjustment was made. Although the trackers were not the easiest documents to follow, they were populated with what was effectively a set agenda in any case.

[688]The claimant complained that no agendas had been sent to her ahead of her grievance meetings. However, the agenda was effectively set in the claimant’s grievances themselves. The grievance meetings were, as usual, to enable the claimant to expand upon her grievances. We do not accept that providing her with an agenda as such ahead of grievance meetings disadvantaged her in the fulfilment of her contractual duties. She was provided with a management statement of case ahead of the redundancy meetings. Again, it bears repeating that the impugned provision criterion or practice is the requirement of the claimant to fulfil the full duties of her contractual role from time to time. It is difficult to see how providing agendas in advance of grievance and redundancy meetings was in pursuant of that objective or would serve to alleviate the disadvantage caused to her by the imposition of that requirement.

[689]The next adjustment contended for is giving the claimant additional time to carry out her duties. The respondents were well aware of this need. It was referred to in the occupational health report of 27 July 2020.

[690]We find that this adjustment was made. The claimant was given a gentle introduction. Her roles and responsibilities were gradually increased such that by December 2020 she had seen or contacted all 14 clients (paragraph 301). On any view, on the evidence of Dr Whittaker, the claimant’s workload was significantly below that normally expected of a band 7 psychologist (paragraph 293). Given the low workload, it follows that effectively extra time was given to the claimant to carry out her duties and this adjustment was made. Further, extra time was to be afforded to the claimant was confirmed in Dr Whittaker’s email of 30 October 2020 (at pages 2184 and 2185). We refer to this email at paragraph 267.

[691]The next adjustment contended for was the use of written communications and instructions in an accessible font size and spacing and with colour overlays or in other formats. In reality, this adjustment was made. The majority of documents was sent electronically. The claimant was therefore able to expand to font size 12 on her computer in any event.

[692]The next adjustment contended for was the provision of dedicated administrative support including proofreading. No issue was taken by the respondents that it would be reasonable to provide the claimant with support with organising booking appointments and proofreading. This is mentioned in the occupational health report at page 1704.

[693]We agree with Miss Nowell that this adjustment was only reasonably required once the claimant had started undertaking clinical work on 29 October 2020 and preparing her own reports. The agreement for administrative support was recorded in the notes of the meeting of 8 October 2020 (paragraph 256). Dr Whittaker and Mr Jones were available to sign off her reports and agreed to proof read them (paragraph 219). Dr Whittaker had made arrangements to book out rooms for the claimant’s 10.5 Reserved judgment with reasons – rule 61 125 March 2017 use (paragraph 124). We find as a fact therefore that these reasonable adjustments were made. It would not be reasonable, in so far as this was being suggested, for a proof reader to be employed for the claimant where she provided with this level of support.

[694]The final adjustment contended for is the provision of a buddy or mentor. We do not accept, as contended for by Miss Nowell, that the support of the individual to assist with disability issues and the support of the freedom to speak up guardian amounted to a reasonable adjustment. In truth, this assistance did not amount to very much at all. The respondents were on stronger ground however with the provision of the support of Mr Jones. We again refer to the claimant’s acknowledgement of 20 November 2020 that she could not identify any more professional support than that with which she had been provided (paragraph 293). We find therefore that the provision of a buddy or mentor was a reasonable adjustment and which was made.

[695]The second provision, criterion or practice with which we are concerned is a requirement upon the claimant to use a desk or workstation. Plainly, when working at home she would use a desk or table and when at the CDC she was expected to sit down and write reports. Miss Nowell appears not to take issue in her written submissions with the claimant’s contention that this provision, criterion or practice placed her at a substantial disadvantage for the reasons in paragraph 359.15(a) to (d). Mr Grundy does not accept on behalf of the second respondent there to be any substantial disadvantage save in respect of the issue at 359.15(a). He puts in issue the second respondent’s knowledge of the disadvantages at 359.15 (b) to (d). We cannot accept Mr Grundy’s submissions upon the basis that the claimant clearly spelled out the disadvantages as she perceived them of the requirement to use a desk within the CDC (see paragraph 698 below).

[696]Looking at matters holistically (as we must) this links closely to the third provision criterion or practice said to create a substantial disadvantage which is the requirement for employees to hot desk. The respondents submit that this was never a requirement imposed upon the claimant. The issue of reasonable adjustments therefore does not arise.

[697]There is much merit in the respondents’ case about hot desking. The claimant was not required to hot desk on 21 April 2020. She was assigned a specific desk. When she returned to work after August 2020 that requirement was not applied to her. The reasonable adjustments complaint therefore upon the third PCP must fail.

[698]That said, we do accept that the second PCP (of requiring the claimant to use a desk or workstation) created a substantial disadvantage for the reasons in 359.15(b) to (d) as well as (a). The claimant said on 25 February 2022 that being required to work at a desk was more stressful because of her mental impairments, not least because of the need to move her equipment around. This would obviously have an impact upon her ability to keep an organised working environment and resulted in anxiety about her ability to fulfil her role. These are the issues to which she referred on 25 February 2022 (paragraph 71) in an email to both Dr Whittaker and Mrs Wilman. Following that email, of course, we have found that Johanna Wilman was fixed with constructive knowledge of the conditions referred to 10.5 Reserved judgment with reasons – rule 61 126 March 2017 in the Access to Work report. (Dr Whittaker likewise had actual and/or constructive knowledge some of the disabilities prior to the claimant starting work). The claimant’s email and the medical evidence available to the respondents were, in our judgment, sufficient to fix them with knowledge of the substantial disadvantage caused by the requirement for the claimant to use her desk/workstation.

[699]The question that arises then is what reasonable adjustments the respondents ought to have made and whether they were in fact made. The first adjustment contended for is the provision of a separate screen or monitor for her laptop. This was referred to in the email of 15 July 2020 (paragraph 173). The claimant (as she accepted in evidence given under cross-examination) had two screens at home. Given the respondents’ agreement that she could work from home when required to undertake reports and with the availability of a second screen at home we find that effectively this was an adjustment which was made. The Tribunal accepts that the claimant was unable to use a second screen within the office for want of a cable which was not located until 3 December 2020. The claimant gave no evidence to the effect that an absence of a second screen within the workplace created a problem in effectively from fulfilling her role, taking into account the other adjustments that had been agreed (particularly working from home to do report writing).

[700]The next adjustment contended for in relation to the second PCP is the provision of a designated storage space for her equipment near her designated desk. We found as a fact of course that storage space was furnished on 21 April 2020. When the claimant’s return to work plan was agreed with effect from the middle of August 2020 a two-door cabinet and a wall facing desk was identified for her use (paragraph 193) when she was in the CDC. The clinic rooms booked out by Dr Whittaker had lockable drawers. She was also provided with a lockable cupboard or a crate on wheels which could be moved between rooms. We refer to paragraph 269. Given the context of the claimant being permitted to work from home when required to write reports or undertake work which required intense concentration (and thus she would be moving her equipment about anyway by taking them home) it is our judgment that the respondents made reasonable adjustments which had a prospect of alleviating the substantial disadvantage caused by the requirement for her to use a desk or workstation when working in the CDC.

[701]The next adjustment contended for in relation to the second provision criterion or practice is for the supply of a voice recorder. The claimant in fact volunteered to use her own initially (paragraph 53). The voice recorder recommended by Access to Work had in fact arrived by 20 July 2020 (paragraph 176). This adjustment was therefore made as she wasn’t without one while ever she was fit to work.

[702]The next adjustment upon the second PCP is “the sufficient supply of equipment such as batteries to support such devices.” This is a difficult adjustment to understand as the only device in the list of issues relevant to the amelioration of the second PCP is a voice recorder. This did not have separate batteries. It had an in-built battery which required charging. A battery was therefore supplied as it was in-built. 10.5 Reserved judgment with reasons – rule 61 127 March 2017

[703]Having determined that the third PCP (a requirement for employees to hot desk) was not a requirement made of the claimant by the respondents, we can move on to the fourth PCP which is a requirement for her to work in an open plan office. Miss Nowell says that this requirement was never applied to the claimant (paragraph 110 of her written submissions). Mr Grundy says that it is accepted that for part of the time she was initially expected to work in an open plan office (paragraph 98). However, he does not accept that that requirement placed the claimant at a substantial disadvantage because of her dyslexia.

[704]This PCP in fact raises a very similar issue to that of the second PCP. Upon the basis of the same reasoning, we find that the claimant has established there to be a disadvantage in the requirement for her to work in an open plan office.

[705]We agreed with the respondents that there was no requirement for her to hot desk. There was however a requirement for her to work in the open plan office on 21 April 2020 at the desk which had been designated for her. We found there to be a de facto adjustment that day given the few numbers of people who were in the office. This ameliorated the disadvantages to the claimant caused by the concentration, distraction and hyper-vigilance issues. After 21 April 2020 the claimant was not required to work in the open plan office. She was informed that on her return she could use room G19 when in the CDC (paragraph 138). A room was made available for her upon her return to the CDC during the week commencing 8 September 2020 (paragraph 193). A separate room was then booked out for her (we refer to paragraph 219). Other rooms had been booked for her use until the end of March 2021 (paragraph 267).

[706]In the circumstances, therefore, the application of the fourth PCP to the claimant was short lived. She was required to work in the open plan office upon her own assigned desk for one day only and even then was able to move to other desks given the few numbers that were in.

[707]The adjustment contended for by the claimant to alleviate the substantial disadvantage caused by the application of the fourth PCP was noise cancelling headphones and Phonak Roger Focus receivers. The claimant in fact had her own noise cancelling headphones which she volunteered to bring in with her upon the first day (paragraph 53). Given that the claimant was undertaking the first day of her induction, it is difficult to see what further adjustments may have been made by the respondents to alleviate the relevant disadvantage. The issues of adjustments following her return to work in August 2020 does not arise as the fourth PCP was not then applied to her.

[708]We now turn to the fifth PCP which is a requirement for the claimant to work in the office for at least a few days a week.

[709]The respondents accept this to be a PCP which applied to the claimant. However, issue was taken that the claimant was placed at a substantial disadvantage because of it as alleged (at paragraph 395.18).

[710]We have seen nothing to suggest that the claimant was placed at a substantial disadvantage by the imposition of a requirement to work in the office for at least a few days a week. Gillian Seddon recommended that the 10.5 Reserved judgment with reasons – rule 61 128 March 2017 claimant had the facility to work from home to do any reports which require concentration to avoid distractions. We refer to paragraph 34. Julie Daughtrey said that, “if at all feasible I would advise that [the claimant] avoids any hot desking and that a quieter room be found for her.” She recommended a phased return to work. She did not say that the claimant needs to avoid work in the office.

[711]There was no suggestion supported by medical opinion that the claimant was unfit or unable to work in the office for at least a few days a week. Indeed, this was not the claimant’s position. There was an issue over a perception on the claimant’s part that she needed permission from Johanna Wilman to go home when she needed to and that matters were becoming a negotiation. Subject to the caveat that this would not apply where a client was booked in, permission was given for the claimant to work from home if she felt unable to continue to work at the CDC (paragraph 265) on any given occasion.

[712]It follows therefore that the claim of a failure to make reasonable adjustments by way of the application of PCP 5 must fail at first base. There was a requirement imposed upon the claimant by the respondents to work in the office for at least a few days a week. This was inevitable given the role and the need to see clients and families in clinic. There is no suggestion upon the part of the claimant that the requirement to attend a few days a week disadvantaged her by reason of her disability. There was no medical evidence corroborative of this case in any case.

[713]It seems to us that PCP 5 in fact elides the PCP and the adjustment for it. Although the complaint was not advanced upon this basis, had the respondents imposed upon the claimant a requirement for her to work at the CDC all of the time then we would accept that that would disadvantage the claimant by reason of her disability for the reasons given in the occupational health reports. A reasonable adjustment such as permitting the working from home would serve to ameliorate the substantial disadvantage caused. That facility was afforded to the claimant in any case.

[714]The sixth PCP is the requirement for the respondents’ employees to use laptops to perform their work or alternatively use their case management systems and software packages. Of course, the claimant was not an employee of the second respondent but we shall construe the PCP widely to include the work undertaken by the claimant as an employee of the first respondent as a contract worker for the second respondent.

[715]The first respondent admits this PCP was applied to the claimant from 29 October 2020 when she started to carry out her substantive role of reviewing clients notes and writing up case notes and reports. A similar concession is made by the second respondent (in paragraph 105 of Mr Grundy’s submissions).

[716]The claimant did not collect her configured laptop until 6 October 2020. There was no evidence from the claimant that she could not use the case management systems upon the laptop once she had it. What this really is about is an inability to use laptops to write up notes and reports except by using the configured laptop. The claimant says that without the software it took her longer to complete her work and she found it more stressful because of her mental impairments. She was able to perform her induction 10.5 Reserved judgment with reasons – rule 61 129 March 2017 duties without the laptop and one was provided with adjustments (on 6 October 2020) before she started clinical work. Reasonable adjustments were made.

[717]Upon the basis of the Access to Work report, it is an inevitable conclusion that the claimant is correct to say that without the software her ability to use the laptop to best effect was impaired and that she was placed at a substantial disadvantage alleged. The respondents are fixed with actual or constructive knowledge of the Access to Work report for the reasons that we have given. There was also ongoing email correspondence around the provision of the laptop and the software for it in the lead up to the claimant returning to work in August 2020.

[718]The claimant accepted in evidence given under cross-examination that the laptop was configured the required software on 6 October 2020 to coincide with her return. Training to use the laptop could not of course be organised until the claimant returned to work. Extensions of time were afforded to the claimant to complete her training. We refer in particular to paragraph 268. She had the laptop from 6 October 2020 which she was required to use for her clinical work. Adjustments were made to enable her to do the work in the form of software configuration before she started her clinical work. Workarounds were adopted prior to her commencing clinical work so that the claimant was able to undergo her induction. She did not require the configured laptop before she started her clinical duties.

[719]An issue arose about a headset to be used in conjunction with the Dragon system which had arrived but did not reach the claimant until 9 December 2020 (paragraph 296). There was no evidence that the Dragon software could not be used without the headset. The Tribunal takes judicial notice of the fact that the Dragon software may be used with the use of the computer’s internal microphones. There was no evidence from the claimant that she was substantially disadvantaged by the absence of the headset from complying with the respondents’ requirement to use the laptop in conjunction with the software that had been provided.

[720]The seventh provision criterion or practice which we must consider is that in paragraph 359.20. This appears to apply to the first respondent only. The PCP in question is the application to the claimant of its sickness absence policy. It is contended that this substantially disadvantaged the claimant because she was more likely to have to take sickness absence and was on reduced half pay and suffer loss of earnings. As we know from paragraph 287, the claimant went on half pay on or around 11 March 2021.

[721]It seems not to be disputed by Miss Nowell that this PCP placed the claimant at a substantial disadvantage. As a disabled person, she was more likely to take time off through ill health than a non-disabled comparator. She was therefore substantially disadvantaged as she was likely to fall within the first respondent’s attendance management procedures and see her remuneration reduced on account of sick leave absence.

[722]There does not appear to be an issue (nor could there be) of the first respondent’s knowledge of the substantial disadvantage given the first respondent’s awareness of the claimant’s ill health absence after 22 April 2020 and from 4 January 2021. 10.5 Reserved judgment with reasons – rule 61 130 March 2017

[723]The question therefore is whether there were any adjustments which could reasonably be adopted by the respondent with the prospect of ameliorating the substantial disadvantage. It is suggested the first respondent may have adapted the sickness monitoring to account for absences triggered by her disabilities. In fact, this adjustment appears to have been made as the claimant did not find herself being managed under the sickness absence management process. We accept there to be nothing notifying the claimant formally of a decision not to trigger sickness absence management. However, the test is objective. The adjustment was made, and the disadvantage caused to the claimant by finding herself within the scope of the absence management procedure was therefore ameliorated. In effect, the first respondent tolerated disability related absence.

[724]The other adjustment contended for is not reducing her pay in accordance with the sickness management procedures. The difficulty for the claimant with this contention is that the Tribunal is bound by the authority of O’Hanlon v Revenue and Customs Commissioners

[2007] EWCA Civ 283

. In that case, the Court of Appeal held that an employer had not failed to make a reasonable adjustment where it declined to modify a sick pay policy to provide for a longer period of absence on full pay for an employee whose absence was disability related.

[725]As was said by Elias LJ (at paragraph 69), “… the purpose of this legislation [The Disability Discrimination Act 1995 which was then in force] is to assist the disabled to obtain employment and to integrate them in to the workforce. … the Act is designed to recognise the dignity of the disabled and to require modifications which will enable them to play a full part in the world of work, important and laudable aims. It is not to treat them as objects of charity which, as the Tribunal pointed out, may in fact sometimes and for some people tend to act as a positive disincentive to return to work.”

[726]Extending a sick pay scheme may be a reasonable adjustment in certain circumstances. This will for instance arise where the employer’s failure to make reasonable adjustments has resulted in the employee taking a longer period of sickness absence than otherwise would be the case. Authority for this proposition may be found in Miekle v Nottinghamshire County Council

[2004] EWCA Civ 858

[727]Here, the Tribunal has found that there were no failures upon the part of the respondents to make reasonable adjustments which caused her to go on sick leave on 23 April 2020 or which prevented the claimant’s return to work. She was able to return to work in mid-August 2020 undergoing induction and shadowing prior to undertaking clinical work on 29 October 2020. By that point, her laptop had been collected around three weeks prior loaded with the necessary software to enable her to provide an effective service. There was no evidence, as we have said, that the claimant’s return to work after 23 April 2020 until 18 August 2020 was delayed by any failure upon the part of the respondents to comply with the duty to make reasonable adjustments. The absence was not caused by any such failure.

[728]It follows therefore that all of the reasonable adjustments complaints brought against the respondents fail and stand dismissed. 10.5 Reserved judgment with reasons – rule 61 131 March 2017 Jurisdiction

[729]The only complaint upon which the claimant has succeeded is that of harassment related to disability. This arises upon the comment made by Johanna Wilman of the claimant being “very picky” and refusing to “work until she has everything in place for her disability.” Time started to run against the claimant on 27 May 2020. She was of course ignorant of Johanna Wilman’s comment until later. It is not clear when the claimant discovered the impugned remark. On the authority of South West and Ambulance Services NHS Foundation Trust v King, the claimant cannot abridge time by reference to any other acts as none of the respondent’s conduct has found to be in breach of the 2010 Act. The claimant commenced early conciliation on 18 March 2021 and then presented her claim form on 16 April 2021.

[730]There is no evidence that the claim was brought in time and that the claimant only found out of the impugned remark only on or after 19 December 2020. We shall therefore work upon the premise that the claim has been brought out of time.

[731]For the reasons given in paragraph 76 of Mr Keen’s submissions, we hold that it is just and equitable to extend time to vest the Tribunal with jurisdiction to consider the claim. The claim was brought by the claimant as one of a very large number of allegations. It is unrealistic to expect her to issue separate proceedings each time an alleged discriminatory act occurred in the context of an ongoing course of dealings at large with the same individuals from each respondent against the contingency of the Tribunal not upholding some of her complaints.

[732]There was no significant delay in the claimant bringing the successful complaint. Even if she were to have found about it on the same day, she was around nine months out of time for bringing the complaint. We accept that normally this would be a significant delay. However, in the context of the ongoing dealings between the parties it is not. Significantly, the second respondent’s ability to deal with the issue has in no way been impaired. It was documented and Johanna Wilman was able to attend to give evidence about it. When questioned, she had a clear recollection of it.

[733]The context must also be set against the claimant’s disabilities. This inevitably would make the formulation of individual complaints more difficult.

[734]Finally, we agree with Mr Keen that there is a public interest in discrimination claims being resolved and it would not be just and equitable for those claims to be dismissed in circumstances where a fair trial has been possible and that claim has been found to be meritorious.

[735]For those reasons, therefore, we extend time to vest the Tribunal with jurisdiction to consider the claimant’s successful complaint against the second respondent.

[736]The matter shall now be listed for a remedy hearing as between the claimant and the second respondent. The parties are directed to file dates of availability together with an indication as to whether a case management preliminary hearing before the Employment Judge would be of use. The parties are directed to notify the Tribunal of these matters within 21 days of 10.5 Reserved judgment with reasons – rule 61 132 March 2017 the date of promulgation. The dates of availability should cover the next four calendar months.