Ms D Cullingford v The Secretary of State for Justice: 1803055/2022

EMPLOYMENT TRIBUNALS

Case No 1803055/2022

Between

Ms D CullingfordClaimant

The Secretary of State for JusticeRespondent

Before

Employment Judge Eeley

In person for claimant

Ms L Amartey (instructed by counsel) for respondent

Date 17 July 2024

JUDGMENT

[1]The complaints of harassment related to disability are not well-founded and are dismissed.

[2]The complaint of failure to make reasonable adjustments for disability is not well-founded and is dismissed. JUDGMENT having been sent to the parties on 23 July 2024 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:

REASONS

[1]This is a case brought by the claimant where she has two claims of disability discrimination. The first relates to the failure to make reasonable adjustments and the second is a claim of disability-related harassment. The respondent concedes that the claimant was disabled. In this case the disability relied upon is the claimant’s previous cancer diagnosis, which she unfortunately suffered on three separate occasions. The claimant goes on to allege that a feature of her disability is a tendency towards anxiety – that is a feature of the cancer disability.

[2]The claimant was employed by the respondent as a County Court Bailiff operating in the Leeds area and the claimant wanted reasonable adjustments to enable her to bring her miniature Yorkshire Terrier in her car with her when she was out in the course of her work, making visits to people’s homes. Essentially, she asserted that her dog was acting as an emotional support animal to help her manage her anxiety.

[3]The second aspect of the claim, the harassment claim, relates to comments which she says were made in her presence by her colleague, Karl Bain. She says that she felt that those comments were designed to upset and distress her. She says that the comments were mocking her.

The Issues

[4]The List of Issues in this case was arrived at during a preliminary hearing conducted by Employment Judge Dunlop. The List of Issues is at page 60 of the hearing bundle, save that we have updated it in two respects. First, we note that the claimant is not relying on anxiety as a separate and distinct disability but rather as a feature of her existing cancer-based disability. Second, the section 15 claim of discrimination because of something arising in consequence of disability was withdrawn by the claimant in the course of correspondence. Evidence and Witnesses

[5]In determining the case my colleagues and I heard oral evidence from the claimant and from Louise Holmes, who is an Operations Manager for HMCTS. We saw a draft witness statement from the claimant's daughter, Amy Cullingford-Hill, who did not attend to give evidence. We also saw an affidavit attaching the witness statement of the respondent’s witness, Christopher McHale, who was a fellow bailiff working alongside the claimant at the material time. We understand that Mr McHale could not attend the final Tribunal hearing due to caring responsibilities. Although he has provided an affidavit, we also appreciate that this witness did not attend to have his evidence tested in cross examination and so his evidence is due less weight than that of those who attended the hearing and had their evidence tested in cross examination.

[6]In the course of the hearing we were referred to a bundle of documents consisting of 341 pages. The Tribunal read those documents to which we were referred by the parties.

[7]We were also assisted by the respondent’s draft chronology and the claimant's comments on that chronology which were provided in email form. We received written and oral closing submissions on behalf of both parties.

Findings of Fact

[8]I start our reasons in this case by noting the profoundly difficult circumstances that the claimant found herself in, having managed to overcome three successive diagnoses of cancer. Unfortunately, the sequence of events is such that her third return to work proved unsuccessful in the long run and she has since left her employment with the respondent. It was clearly a very difficult and distressing time for the claimant and we were concerned that in some parts the evidence presented by the respondent perhaps did not evidence the kind of care and compassion that the Tribunal might have expected to see in a case of this sort. However, we are here to determine the case as pleaded and as brought before us. Thus, we are not considering such issues such as constructive unfair dismissal.

[9]With that in mind, I outline our findings of fact. Health

[10]First of all, we looked at the medical position and the evidence that we had in front of us regarding the claimant's situation over the period of the relevant chronology. We were presented with a series of fit notes that the claimant gave to her employer starting on 6 July 2021. The reason for absence in the fit notes was referred to as cancer related surgery. There were a number of those sick notes. Then, on 22 August 2022, we saw a change in the reason for the absences in the fit notes. The reason changed from cancer related surgery to a reference to stress and depression. Indeed, we saw a series of those fit notes over the remainder of 2022 and into the early part of 2023, all with a reference to stress and depression.

[11]In the middle of that chronology we also saw that the claimant had been referred to Occupational Health and a report was provided by Occupational Health on 7 November 2022 (page 178 in the bundle) which referred to the mental health difficulties the claimant was experiencing, although it did not make specific reference to the issues surrounding the claimant's dog being present in her car during the working day.

[12]That is the overarching timeline. We note that the decision in this case (regarding the refusal to permit a dog to accompany the claimant) was made in the period between mid-February and 19 April 2022, which is before the contents of the fit notes changed to refer to stress and depression. This is important because the fit notes and the Occupational Health advice are the elements of medical evidence to which the respondent would have had access at the time it was making the relevant decisions in relation to the claimant. Clearly, there was evidence in the background which, at that point in time, was confidential to the claimant, namely her GP consultations. They were confidential to the claimant until they were presented in the course of these Tribunal proceedings and so they have to be viewed in that context.

[13]Having said that, the medical evidence that we have seen in the summary of the claimant’s attendance at her GP shows a mental health condition that she was seeking assistance with from 18 February 2022 onwards. We see a consultation on 18 February 2022 (page 302) referring to the claimant's very low emotional state and a reference to the fact that she may well need antidepressants. Information regarding talking therapies was being sent to the claimant.

[14]It seems that the initial mental health assessment was delayed (for reasons outside the claimant's control) until 8 March 2022, and we note that there was a consultation summarised on page 304 which referred to how low the claimant was feeling. In it, the claimant is recorded as saying that work is difficult, that she worked on her own a lot, that she had been taking her dog to work and found this reassuring and calming, but that her manager had said that she could no longer do this. The claimant had found this helpful. The claimant ‘talked it through’ with the dog if she had had a bad visit. She was able to take her dog for a walk when her anxiety got particularly bad. At this point in time the claimant was awaiting feedback from HR and she was hopeful (at that stage) that this would go in her favour. The claimant was given various pieces of advice regarding coping with the anxiety. In relation to “anxiety/mood” it was recorded as “through the roof”. She felt low and was ‘going through the motions’ of the day. A crisis plan was discussed. She also made enquiries about the possibility of registering her dog, Bella, as an emotional support dog. It appears that Healthy Minds (who I understand may have been the people she was consulting at this point in time) felt that they could not provide the letter of support for the registration of the emotional support dog. Apparently, her GP had also said that they could not do this. She was referred to another organisation, Emotional Support Animals UK, in relation to this. This issue was to be looked into further and we see later that the claimant did in fact obtain a letter of support from her GP in relation to the registration of the dog.

[15]The record at p306 records that the claimant wanted a letter which would say: I would like my dog to be my emotional support animal due to the level of past stress and trauma I have experienced, My dog enables me to work more effectively and focus more easily. She helps me with my anxiety and is able to help me feel more calm and relaxed. I would like to be able to take my dog in the car with me when going between calls, my job is quite lonely and having my dog as support keeps my mind focused and enables me to manage my stress much better. I use my dog to talk things through with, this helps me process things that are going on and helps me relax. Having my dog with me enables me to work more effectively and I value being able to work. I strongly believe having my dog as my emotional support can only be a benefit to my mental health and wellbeing and maintain my ability to work to my fullest capacity. “

[16]There are a number of further consultations. In the course of these consultations the claimant explains that the dog helps with the anxiety and helps her to feel more calm and relaxed and she wanted to be able to take her dog in the car with her when going between calls for work. The claimant found that her job was quite lonely and that the dog helped her to keep her mind focussed and manage her stress much better. The claimant talked issues through, and it helped her to process things that were going on and helped her to relax. The claimant maintains that having the dog with her enabled her to work more effectively and could only be a benefit to her mental health and wellbeing and her ability to work at her fullest capacity.

[17]There was a further interaction between the claimant and Healthy Minds on 27 April (page 309). Again, this referred to the claimant not coping, not getting on with things at work, and that she had managed to get the letter in support from the GP but HR had decided not to grant her permission to have the dog as a therapy dog. There is reference to the claimant having contacted ACAS (who had been helpful) and that she now had raised a grievance and had still had her requests refused. She is recorded as feeling very stressed, forgetting things (such as forgetting to boil the kettle). The description relates to the claimant feeling like a ‘nervous wreck, being jumpy and on edge’ and not feeling able to be calm. There was reference to discussing time off but the claimant was reluctant to do this and was worried about sitting and stewing at home, and she was going to need time off for surgery in due course. There is reference to low mood, feeling anxious and trying to manage stress with relaxation and breathing.

[18]We then go forward to 22 August when the claimant attends at the GP surgery (it may be a consultation with a nurse). History is given of the claimant's declining mental health and her struggles with low mood and anxiety, having gone back to work, having issues at work and a lack of a supportive manager. The consultation refers to work as a major trigger, that the claimant feels overwhelmed and very tearful and is not coping well. She is recorded as having good family support but as being very down and depressed. It is recorded as a diagnosis of depressive disorder. A fit note is given, and plans are made to start the claimant on an antidepressant. We see, in the rest of the records, that the claimant keeps going back for reviews at the GP surgery in September, October, November and the following March and she continues to take medication during this period.

[19]In addition to the records, we saw a disability impact statement from the claimant in the bundle. She gave evidence in this that, on returning to her usual role, she would have her dog in the car with her on occasion who had become her emotional support animal. When the claimant was feeling anxious, depressed or stressed stroking her soothed the claimant. She would pour out her feelings to her dog and the claimant maintains that the dog was the reason why she did not end her life when she felt depressed and could barely face the day. The claimant describes feeling so low some days that she did not get out of bed. She also says that the impact that it had on her when she was told that she could not have the dog in the car with her was that it made her anxiety increase tenfold. Everything that the claimant was already feeling intensified. She felt hurt and that the respondent had completely disregarded her emotional state which she had told them about on many occasions. The claimant felt let down and could not understand what the massive issue was. She felt angry that people with no medical background or mental health experience had made a decision with no policy in place either for or against emotional support animals accompanying her in the car. The claimant was told that there was no policy and, therefore, a local decision had been made and she doubted whether those who had made the decision understood the devastating impact of her illness upon her, physically and mentally.

[20]That again gives us an insight into the claimant's experiences of her mental health and the interrelationship between that and her employment. Chronology of Events

[21]The claimant started her employment with the respondent (as far as we can see) in December 2010, although the claimant thinks it may have been in 2009. In any event, the claimant got her new dog, Bella, the miniature Yorkshire Terrier, in September 2020. We note that the claimant lived alone at the material times and the dog provided companionship and support during the material period, indeed this was just before the second pandemic lockdown.

[22]The claimant unfortunately received her third diagnosis of cancer in February 2021 and had to undergo further surgery. That surgery took place during the Covid pandemic, and we note the claimant's evidence that she was not allowed to have visitors whilst in hospital and had to attend appointments alone.

[23]The claimant was off work entirely from 19 May 2021 through to 9 July 2021. When she initially came back to work, she was working from home and carrying out court clerking duties (which she was able to do from home.)

[24]On 10 January 2022 the claimant returned to her bailiff duties, initially on a phased return for three weeks. Right from the outset she felt that she had a negative reaction from some of her colleagues in the workplace. She gave particular evidence about the reaction of Mr Karl Bain who she records as not having even said “good morning” but having opened with the comment “why are you sitting there?”. Apparently, in the claimant's absence a decision had been made that she should move desks. She was, apparently, the only bailiff who was required to move desks. So, when she had come into work, Mr Bain had picked up on where she was sitting. The claimant gave evidence that the following conversation ensued: firstly, he asked why she was sitting where she was. She responded that this was ‘where she sits’ and then he replied something along the lines of, “not anymore, you sit over there now.” At this point the claimant could not comprehend his attitude and felt that he gave the impression that her illness had been a major inconvenience for him personally. As the claimant was setting up her desk, Karl Bain (who was sitting opposite) said to her, “don’t be touching any of my wires, it’s been the fine the whole time you were off.” The claimant left shortly afterwards because she was working from home in the afternoon to clerk hearings. Again, as the claimant left the office Karl Bain mentioned the moving of desks. The claimant repeated that she could not understand his attitude towards her. In her evidence the claimant expressed a view of Karl Bain that he is ‘a wind-up merchant’ and has had run-ins with various colleagues and managers.

[25]In any event, the claimant had a return to work meeting with Louise Holmes and Michael Diamond. During that discussion she referred to the fact that her desk had been moved and said that she did not want to move desks. They were not aware that her new manager, Mr Mohammed Shakeel, was going to enforce a desk move and they informed the claimant that she could continue working at her usual desk and that they would take the matter up with Mr Shakeel and explain it to him.

[26]The claimant returned to full-time bailiff duties from 31 January 2022. She was given a new line manager, Mr Shakeel who was known to the claimant and others as “Shak,” for short. (Any references in these reasons to “Shak” are a reference to Mr Shakeel.)

[27]On or about 11 February 2022 the claimant’s dog was spotted in her vehicle, which was parked on a ramp in the car park outside the court building whilst she was in the court building undertaking administrative duties in the office. Three bailiffs apparently saw the dog who was in the car with the claimant’s friend. We understand that the intention was that the claimant’s friend would be taking the dog for a walk later on.

[28]The claimant was told that she could not bring her dog into work. There was a telephone conversation between the claimant and Mr Shakeel, who told her that Bella could not travel in the car with her. The claimant asked why, and Mr Shakeel claimed it was unsafe, that she could potentially jump out of the car (which was a safety concern). The claimant maintains that she explained that the dog was always strapped in but Mr Shakeel continued to say that she could not have the dog in the car. Mr Shakeel said it was unprofessional and the claimant made a comment by response about the unprofessionalism of him wearing a baseball cap in the office.

[29]Mr Shakeel followed the phone call with an email and he confirmed that Bella could not go in the claimant’s car during working hours whilst the issue was being looked into further. The claimant was told that because she works mostly from her car this was considered an extension of the workplace.

[30]On 16 February (page 110) the claimant emailed Mr Shakeel outlining her surprise at the refusal to allow her to bring the dog and setting out the reasons for the request. She asked for the decision to rescinded and she explained how the dog had been integral to her emotional coping and recovery process throughout, especially since she lived alone with the added pressures of Covid-19. The claimant made a point of referring to the impact that the presence of the dog had had on her improved mental wellbeing throughout a challenging time. She refers to the fact that the dog helped her anxiety levels which were “through the roof” at that time. The claimant said that it allowed her to be fully focussed on the job in that she was not worrying about the next time when she could get home to let her dog out and she pointed out that it had no effect on her efficacy or professionalism at work. The claimant therefore asked for the decision to be rescinded and closed by saying that, if necessary, she would have her registered as an emotional support dog to support her case.

[31]In response to this Mr Shakeel told the claimant that he was going to speak to management about it (page 109). There is a response email from Mr Shakeel confirming that, in the meantime, Bella was not allowed to be in the car during work time.

[32]On 17 February Mr Shakeel emailed the claimant that he had sought further advice from HR who were, in turn, taking advice from Civil Service Policy, and the response would take a few weeks (page 112). HR advised that they were seeking this advice on the particular situation, and it was stated that, at that time, only trained assistance dogs would be allowed to attend sites/work. Until further guidance and alternative arrangements were made, then there needed to be alternative arrangements made for the dog whilst the claimant was in the office or on her routes. Reference was made to several factors which were under consideration including: professionalism, the absence of a legal right to have the dog attending work, and the health and safety of the dog.

[33]As previously stated, the claimant had a consultation with the nurse at the GP on 18 February and a referral to Healthy Minds.

[34]On 18 February we start to see the ‘behind the scenes’ correspondence passing between various individuals in the respondent organisation in an effort to get guidance to come to a decision on the issue. There was an email from HR to the Cabinet Office requesting advice. It referred to the fact that there was no policy in place (pages 114-115). On 18 February there was also an email from the Senior Health and Safety Business Partner stating that there was no national policy and that it would have to be a management decision. Also, on 18 February (page 120), there was an email from HR which referred to it being quite common and a regular occurrence for Judges to bring their dogs into courtrooms and court buildings.

[35]In the email (at page 114) HR set out some apparently incorrect information regarding the patterns of work for bailiffs and the number of calls during the day and the length of time that they would spend actually with members of the public at their premises. We note that that email is from a Ms Tarleton who was part of HR at a national level based in London rather than in Leeds and that, as a result, she did not have knowledge of local practice in the Leeds area. The information she provided in the email was not reflective of the claimant's practice or of the Leeds situation. The claimant clarified to us (and we accept) that she did longer appointments (such as evictions) on a Thursday and she did not take her dog with her to work on those days (i.e. on those Thursdays). The rest of the time, the appointments were generally shorter which meant that she would not be leaving the dog unattended in the vehicle for particularly lengthy periods of time. The email from HR also referred to the claimant bringing the dog into the office whereas the claimant has confirmed that she has never asked to be able to do that. That was not the object of the exercise from her point of view.

[36]The difficulty this email poses is that it sets out the scope of the advice that the respondent was seeking from the other departments, but the advice was sought based on a misleading account or a misdescription of the situation. That may have had an impact on the guidance and the decision that was subsequently made.

[37]On 22 February the Civil Service Policy Department made observations regarding the claimant's request. They noted (at page 113) that the decision on how to handle this was, effectively, a business decision. They directed that the respondent could think about what was in its guidance with regard to bailiff duties, where the place of work was, and they pointed out that, as with any situation, it should be looked at on a ‘case-by-case basis’ so that maybe a workplace assessment should be done. They posited the possibility of the situation being ‘time bound’ in order to deal with the claimant’s anxiety. They noted that that may mean that the dog is registered as a therapy dog. They also said that they were not sure that ‘discipline’ was necessarily the right course of action at that stage. They asked whether having the dog was affecting the person doing their job: had performance levels dropped, had targets been met and had consideration been given to health and safety and what this means in the workplace? They also queried what was meant by comments on the individual’s professionalism and asked whether there had been any public complaints. They were unable to offer any further guidance at this stage but suggested that the respondent could ‘reach out’ to other departments that have ‘visiting officers’ to see if the situation had come up elsewhere.

[38]Following on from that, away from work, on 26 February there was a medical consultation between the claimant and Healthy Minds.

[39]On 4 March (page 127) the claimant chased Mr Shakeel asking for an update and stated that her anxiety was getting worse.

[40]On 8 March the Senior Health and Safety Manager made observations regarding the claimant's request. He/she provided a link to a risk assessment and indicated (at page 118) that they would expect the Court Manager to consider the risks for staff to bring pets or dogs into work (except for fish), unless the dog had a recognised support role and was trained to a high standard. It was confirmed that there was no health and safety policy on this because, in theory, the risks could be managed for one dog. They could not have everybody bringing in their pet dogs. The policy would need to recognise the requirement for support dogs, so there was discussion of ‘time limited’ changes for one dog.

[41]In the meantime the claimant went back to consult Healthy Minds. Then, on 9 March, advice was provided from the Disability Forum (page 121). The email referred to the difference between a registered assistance dog (e.g. guide dogs and other service dogs) and an emotional support dog and examined the legal recognition status of the two categories of animal under the Equality Act. The guidance stated that emotional support dogs do not have the same legal recognition as assistance dogs. The guidance also talked about the specific assistance and tasks which an assistance dog may be trained to perform in relation to a particular disability. The specific nature of the assistance provided by the dog, the likely level of training given to the dog and the clearer definition or description of an assistance dog was contrasted with the absence of these features in an emotional support dog. The email also provided some guidance on the key considerations if allowing an employee to bring a therapy dog to work. It discussed the standard of training associated with the two categories of dog and what assumptions an employer could make about that. The email also talked about the sorts of discussions that should take place about the need for (and practicalities relating to) an emotional support dog as a reasonable adjustment. The email also highlighted the relevant health and safety considerations and the considerations relating to other employees and their needs.

[42]Suffice it to say that that email of guidance is lengthy, detailed and thorough and the Tribunal considers that it would have been a very good starting place for addressing the issue. That email guidance was sent to a Ms Proudly in HR and we understand from the evidence that we have heard that the email itself was not shared with the rest of the decision makers who made the decision about Bella and her presence in the claimant’s car. So, the respondent as an organisation knew about that information but not necessarily the particular witnesses who gave evidence to the Tribunal.

[43]On 10 March Mr Shakeel emailed the claimant to update her on her queries and to confirm that, in the meantime, she was able to take unpaid time in the middle of her shift to attend to her dog. He also offered the claimant an Occupational Health referral. As was subsequently accepted by Ms Holmes in evidence, this offer of time off in the middle of the day to attend to the dog was not really adding a great deal to what the claimant could already obtain in normal circumstances. The claimant did not work fixed hours with a definite start and end time. She was able to flex her working day to accommodate the work that needed to be done as long as she communicated with management for health and safety purposes (as a lone worker) and in order to ensure (for organisational reasons) that there was sufficient cover within the organisation.

[44]At this stage the claimant did not take the respondent up on its offer of the Occupational Health referral because she felt her efforts were better spent talking to Healthy Minds. Her previous experience of Occupational Health and their interventions had not been particularly good. She had not felt that they were any particular help to her in her previous interactions with them.

[45]Again, on 23 March the claimant spoke to Healthy Minds.

[46]The Tribunal has seen a letter (dated 29 March) from the claimant's GP supporting the claimant's application for her dog to be registered as an emotional support animal. That letter was based on the claimant's own request as to what she wanted the document to contain. Although it could have been used as a support to secure registration of an emotional support animal, no such registration was actually obtained in relation to Bella. The claimant explained to us that, until she knew whether it would make a difference, she decided not to expend the money in going through a registration process only for it to make no difference to the overall outcome in her case.

[47]That GP letter of support was sent to Mr Shakeel on 4 April when the claimant repeated her request that her dog be allowed to accompany her. The claimant noted in her email (page 132) that the situation was causing her unnecessary stress. The claimant re-emphasised that she was not asking for the dog to be present in the work environment save for within her vehicle. She certainly was not asking for the dog to be in the court building. The claimant reiterated that the dog was strapped into the car seat at all times and she maintained that the dog was not visible to clients. The claimant maintained that having the dog present had no negative impact on her professionalism, efficiency or the company (as far as she could see) but did help with her wellbeing immensely.

[48]We saw an email dated 8 April (page 134) from the Head of HR to the respondent stating a number of things, including the need to be careful to ensure that there was no failure to make reasonable adjustments. It said: “I think we do need to be really sure that we are not creating a legal risk here with failure to make reasonable adjustments. If it was a guide dog for someone with sight problems, would we allow them on the premises? That’s the decision local managers need to make and they will need in writing the advice from H & S and casework should this be challenged legally later on.”

[49]There was a further response from HR Policy and Reward (page 136) stating that there was no Civil Service wide policy and that it is a case by case decision. That document also referred the respondent to the general steps to be taken in relation to reasonable adjustments. It stated: “So I think we treat this like any other situation where we need to determine whether something is a reasonable adjustment for somebody with a condition that meets the criteria for a disability under the Equality Act. I appreciate that this is a bit different than, say, having an adapted mouse or having a flexible work arrangement so it will require more investigation. Ultimately though, it is down to the local management to make the decision with the relevant advice and guidance. I understand Lydia and Emma P have already looked into some of this stuff but this would be the steps that need to happen: 1. Manager engage HR casework for advice. 2. Seek Occupational Health referral to understand how we can support this individual with their dog in work premises. 3. Ask for workplace adjustment team input. 4. Ask for health and safety input (probably involving a risk assessment.) 5. Local management can determine whether they feel they can accommodate the dog and make all reasonable efforts to do so. There are bound to be some health and safety risks to having a dog on site, so it’s whether managers think they can mitigate this risk sufficiently to protect staff. I would imagine that local management will need a bit of handholding from Emma P on this, but they will need to ensure the local H & S rep has given their advice, they have an occi health report and WSA advice so they can have a conversation with Emma P and determine what to do. It shouldn’t be that Emma P has to go and get all this advice, although I can appreciate that doesn’t always work that way in practice. It may also be that WSA team can’t contribute on this as it’s not something they’ve come across at which point D&I will need to be engaged to help get a view.”

[50]The claimant chased up a response on 13 April in an email to Mr Shakeel. There was a response from him the same day saying that he had a meeting in the diary later that day.

[51]On 19 April Mr Shakeel emailed the claimant confirming the final decision not to permit her to bring her dog into work. The document was at page 144 and it stated: “Our HR team have conducted a lot of research on this subject regarding having an emotional support dog in a vehicle and in the workplace, including Health and Safety, civil service employee policy and disability forum. HMCTS and the civil service employee policy does not have a policy on allowing animals in the workplace and this is not a subject which is going to be reviewed presently. Assistance dogs for those who are blind, partially sighted or have other medical conditions are legally protected. If your request was for an assistance dog we would of course put the necessary process in place to allow them into the workplace. However emotional support dogs and therapy dogs are not protected in law and it is down to each organisation to decide. HMCTS do not envisage having a national policy and you are therefore not in a position to have an emotional support dog at work. Within HMCTS we do have a duty of care to see what else we can offer to support you and as we have already discussed you are taking a more flexible approach to the day and times to go home at lunch to spend time with your dog, walk and feed etc. I understand this is not the outcome you would like, however we do want to support you the best way we can, I am in a position to arrange a stress risk assessment with you and also to refer you to the Occupational Health team, however if anything else that you think might help, please let me know as I am happy to discuss options with you.”

[52]There is a further email (page 145) and further correspondence.

[53]On 20 April, the claimant challenged the decision to refuse her dog in work (the email entitled “Grievance” at page 142). Despite it having that in the subject line it was not treated (it seems) as a grievance. In that email the claimant said she had spoken to her union and that she had been advised to raise a grievance formally. The claimant went on that she had explained the anxiety and distress that she was experiencing and had been for over the past year. The claimant noted that this had been exacerbated by the diagnosis of her third bout of cancer and she had been told she was covered by Equality Act legislation and that the employer had a duty to make reasonable adjustments. The claimant confirmed that the adjustment and resolution she was asking for was to allow the dog to accompany her in the workplace (i.e. the car) whilst she was doing calls, and she was not asking for her to be allowed into the office. The claimant requested a response within a week.

[54]On 22 April Mr Shakeel emailed the claimant confirming that the respondent was not in a position to agree to the dog being brought into work (page 141). He confirmed that he was fully aware of the stress and anxiety levels and what she had been through over the last 12 months and was trying to support her in any way he could. He confirmed he had taken HR advice before the decision was made and that there was no policy for this and therefore the local decision was taken not to allow an emotional support dog to work. They wanted to put reasonable adjustments in place but this was not something that he was in a position to agree with. He confirmed that he fully supported her “all hours” working contract and appreciated that she could work split shifts. All he asked was for the claimant to ensure that her DRS showed the split shifts and that she log on and off with him as normal. He concluded by saying he was happy to meet with her to discuss this further should she wish to do so.

[55]On 24 April the claimant commenced early conciliation with ACAS. There were ongoing discussions with Healthy Minds on 27 April.

[56]There was then an incident with Karl Bain on 4 May regarding his comments in the claimant's presence in the workplace. These were recorded in a diary entry and were elaborated upon in the evidence given by the claimant in her witness statement to the Tribunal. At paragraph 25 onwards she said this: “I was performing some administrative work at the office. I still don’t understand why the atmosphere was still tense. Chris was in the office as well and then Karl arrived. All I was focussed on was finishing my route so I could head out and make my calls. Karl was speaking with Chris loudly when he suddenly remarked something like, ‘Oh Pen [his wife] is back in the office next week and guess what…’, Chris queries, ‘what?’ Karl states, ‘she asked if she could bring along Poppy (their dog) and they said she could, so Poppy is going to be the new office dog’ …both laughed. As I overheard this my ears pricked up since I knew Karl’s wife also worked for the MOJ and was quite high up. I didn’t say anything, and Karl continued the conversation by saying, ‘Mind you, her manager couldn’t really say no because he brings his dog into the office with him every day’. (again both laughed.) It was then that I realised Karl was making fun of me. I wondered how he/they knew. I quickly came to the conclusion that SM had probably told them as he was very buddy-buddy with them at the time. SM and Karl often went out for a cig break together. I cannot tell you how mortified I was. I knew I had not breathed a word to anybody in the office so the only person aware was SM (aside from HR and upper management.) Chris and Karl both left the office together that day without saying goodbye. I felt very exposed and humiliated… I was really offended and upset but I kept it to myself, when I told ACAS about it the next time I spoke with them, they advised me to include it in my application since it constituted a ‘breach of trust.’ My anxiety and stress levels had skyrocketed by this point. I was unable to focus, eat or sleep. I was irritable and exhausted all the time. I had what felt like a headache all the time. My head felt foggy. Sometimes my cup of tea would be cold because I had forgotten to boil the kettle. I’d lose track of what I was doing or was going to do. It seemed like I was unable to operate normally. I don’t know how I kept working. Sometimes I would simply pull over whilst driving and start crying uncontrollably. After undergoing yet another surgery to preserve my life, I asked myself why I’d want to carry on feeling this way. My small dog gave me so much support. It was her that convinced me to stay as my thoughts were getting darker.”

[57]Whilst the claimant was convinced that her confidentiality had been breached, the Tribunal finds that there was no breach of confidentiality. The witness that we saw at the hearing denied it, the witness evidence did not support it. We heard evidence that at least three other bailiffs had seen the claimant’s dog at work. Furthermore, what was actually said in the course of the conversation in May does not indicate or give any evidential basis on which we can assume that the participants knew the claimant had asked to bring the dog to work as an emotional support animal. The Tribunal had no evidence from which we could draw the inference that confidentiality had been breached.

[58]On 10 May the claimant sent an email to Mr Shakeel asking how to appeal the decision. This was referred up the chain of command to Natalie Maddison who was going to look into it and let him know. The response came from Mr Shakeel to the claimant on 13 May, signposting her to the appeal process on the intranet, but stating in the email that the claimant could not have an ESA dog at work and he indicated in his view the clarification that early conciliation from ACAS was a form of appeal.

[59]There were further emails then, on 30 May, the claimant complained regarding Mr Bain. There were issues regarding coverage of non-molestation orders which were not directly on point in the circumstances of this case.

[60]The claimant was issued with her ACAS Early Conciliation certificate on 5 June and then issued the claim in the Employment Tribunal on 26 June 2022. There were then ongoing issues at work regarding trying to get the claimant to undertake a stress risk assessment. There were enquiries made as to the lease car insurance position in order to see whether the insurance was valid if the claimant's dog was in the car during working hours when the car was unattended. There are other issues regarding a colleague (Liam) being allegedly bullied. The claimant commenced a period of sick leave due to stress and depression on 15 August.

[61]By 6 April 2023 the claimant unfortunately decided she was unable to continue in her employment and she resigned. The effective date of termination was 5 May 2023. Relevant Law Section 26: harassment

Relevant Law

[62]Section 26 Equality Act 2010 states: (1) A person (A) harasses another (B) if- (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) The conduct has the purpose or effect of- (i) violating B’ s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B …. (4) In deciding whether conduct has the effect referred to in subsection (1) (b), each of the following must be taken into account- (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect. 63. ‘Unwanted’ conduct is essentially the same as ‘unwelcome’ or ‘uninvited’ conduct.

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

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

[2017] ICR 121

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

[2020] IRLR 495

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

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

[2009] ICR 724

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

[2015] IRLR 356

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

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

(2) The duty comprises the following three requirements.

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

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

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

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

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

(3) …

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

2008 ICR 218

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

(b) Identify comparators (if necessary),

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

[71]In Ishola v Transport for London

[2020] EWCA Civ 112

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

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

[73]There must be some causative nexus between the disability relied upon and the substantial disadvantage which is asserted (Thompson v Vale of Glamorgan Council

UKEAT/0065/20/RN

). Has the claimant suffered a substantial disadvantage by reason of her disability and as a result of the application of the PCP?

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

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

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

[77]Paragraph 20(1) of Schedule 8 to the Equality Act 2010 indicates that the employer will only come under the duty to make reasonable adjustments if it knows, not just that the relevant person is disabled, but also that the relevant person’s disability is likely to put him or her at a substantial disadvantage in comparison with non-disabled persons. Knowledge is not limited to actual knowledge but extends to constructive knowledge (i.e. what the employer ought reasonably to have known). The EAT has held that a tribunal should approach this aspect of a reasonable adjustments claim by considering two questions:(1) Did the employer know both that the employee was disabled and that the disability was liable to disadvantage the employee substantially?

(2) If not, ought the employer to have known both that the employee was disabled and that the disability was liable to disadvantage the employee substantially? (Secretary of State for Work and Pensions v Alam

[2010] ICR 665

, EAT) It is only if the answer to the second question is ‘no’ that the employer avoids the duty to make reasonable adjustments.

[78]In Wilcox v Birmingham CAB Services Ltd EAT 0293/10, the then President of the EAT, Mr Justice Underhill, took the view that the effect of the knowledge defence in the predecessor Disability Discrimination Act was that an employer will not be liable for a failure to make reasonable adjustments unless it had actual or constructive knowledge both(i) that the employee was disabled, and

(ii) that he or she was disadvantaged by the disability in the way set out in section 4A(1) (i.e. by a PCP or physical feature of the workplace). The second element of this test will not come into play if the employer does not know the first element. Burden of Proof

[79]Section 136 of the Equality Act 2010 provides that, once there are facts from which an employment tribunal could decide that an unlawful act of discrimination has taken place, the burden of proof “shifts” to the respondent to prove any non-discriminatory explanation. The two-stage shifting burden of proof applies to all forms of discrimination under the Equality Act including harassment and the failure to make reasonable adjustments under section 20. Although similar principles apply, what needs to be proved depends, to a certain extent, on the nature of the legal test set out in the respective statutory sections.

[80]The wording of section 136 of the act should remain the touchstone.

[81]The relevant principles to be considered have been established in the key cases: Igen Ltd v Wong

2005 ICR 931

; Laing v Manchester City Council and another ICR 1519; Madarassy v Nomura International Plc

2007 ICR 867

; and Hewage v Grampian Health Board

2012 ICR 1054

[82]The correct approach requires a two-stage analysis. At the first stage the claimant must prove facts from which the tribunal could infer that discrimination has taken place. Only if such facts have been made out on the balance of probabilities is the second stage engaged, whereby the burden then “shifts” to the respondent to prove (on the balance of probabilities) that the treatment in question was “in no sense whatsoever” on the protected ground.

[83]The approved guidance in Barton v Investec Henderson Crosthwaite Securities Ltd

[2003] ICR 1205

(as adjusted) can be summarised as: a) It is for the claimant to prove, on the balance of probabilities, facts from which the employment tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination. If the claimant does not prove such facts, the claim will fail. b) In deciding whether there are such facts it is important to bear in mind that it is unusual to find direct evidence of discrimination. In many cases the discrimination will not be intentional. c) The outcome at this stage will usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. The tribunal does not have to reach a definitive determination that such facts would lead it to conclude that there was discrimination, it merely has to decide what inferences could be drawn. d) In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts. These inferences could include any that it is just and equitable to draw from an evasive or equivocal reply to a request for information. Inferences may also be drawn from any failure to comply with the relevant Code of Practice. e) When there are facts from which inferences could be drawn that the respondent has treated the claimant less favourably on a protected ground, the burden of proof moves to the respondent. It is then for the respondent to prove that it did not commit or, as the case may be, is not to be treated as having committed that act. To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that its treatment of the claimant was in no sense whatsoever on the protected ground. f) Not only must the respondent provide an explanation for the facts proved by the claimant, from which the inferences could be drawn, but that explanation must be adequate to prove, on the balance of probabilities, that the protected characteristic was no part of the reason for the treatment. Since the respondent would generally be in possession of the facts necessary to provide an explanation, the tribunal would normally expect cogent evidence to discharge that burden.

[84]The shifting burden of proof rule only applies to the discriminatory element of any claim. The burden remains on the claimant to prove that the alleged discriminatory treatment actually happened and that the respondent was responsible. The statutory burden of proof provisions only play a role where there is room for doubt as to the facts necessary to establish discrimination. In a case where the tribunal is in a position to make positive findings on the evidence one way or another as to whether the claimant was discriminated against on the alleged protected ground, they have no relevance (Hewage). If a tribunal cannot make a positive finding of fact as to whether or not discrimination has taken place it must apply the shifting burden of proof.

[85]Where it is alleged that the treatment is inherently discriminatory, an employment tribunal is simply required to identify the factual criterion applied by the respondent and there is no need to inquire into the employer’s mental processes. If the reason is clear or the tribunal is able to identify the criteria or reason on the evidence before it, there will be no question of inferring discrimination and thus no need to apply the burden of proof rule. Where the act complained of is not in itself discriminatory and the reason for the less favourable treatment is not immediately apparent, it is necessary to explore the employer’s mental processes (conscious or unconscious) to discover the ground or reason behind the act. In this type of case, the tribunal may well need to have recourse to the shifting burden of proof rules to establish an employer's motivation

[86]The claimant bears the initial burden of proving a prima facie case of discrimination on the balance of probabilities. The requirement on the claimant is to prove on the balance of probabilities, facts from which, in the absence of any other explanation, the employment tribunal could infer an unlawful act of discrimination. The employer’s explanation (if any) for the alleged discriminatory treatment should be left out of the equation at the first stage. The tribunal must assume that there is no adequate explanation. The tribunal is required to make an assumption at the first stage which may in fact be contrary to reality. In certain circumstances evidence that is material to the question whether or not a prima facie case has been established may also be relevant to the question whether or not the employer has rebutted that prima facie case.

[87]The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, with more, sufficient material from which tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination (see Madarassy).

[88]If the claimant establishes a prima facie case of discrimination the second stage of the burden of proof is reached and the burden of proof shifts onto the respondent. The respondent must at this stage prove, on balance of probabilities that its treatment of the claimant was in no sense whatsoever based on the protected characteristic.

[89]In some instances, it may be appropriate to dispense with the first stage altogether and proceed straight to the second stage (Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

.) The employment tribunal should examine whether or not the issue of less favourable treatment is inextricably linked with the reason why such treatment has been meted out to the claimant. If such a link is apparent, the tribunal might first consider whether or not it can make a positive finding as to the reason, in which case it will not need to apply the shifting burden of proof rule. If the tribunal is unable to make a positive finding and finds itself in the situation of being unable to decide the issue of less favourable treatment without examining the reason, it must examine the reason (i.e. conduct the two stage inquiry) and it should be for the employer to prove that the reason is not discriminatory, failing which the claimant must succeed in the claim.

[90]In a case of harassment under section 26 of the Equality Act 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” for the purposes of section 26(1)(a). Where the conduct complained of is clearly related to protected characteristic then the employment tribunal will not need to revert to the shifting burden of proof rules at all. Where the conduct complained of is ostensibly indiscriminate the shifting burden of proof may be applicable to establish whether or not the reason for the treatment was the protected characteristic. Before the burden can shift to the respondent the claimant will need to establish on the balance of probabilities that she was subjected to the unwanted conduct which had the relevant purpose or effect of violating dignity, creating an intimidating etc environment for her. The claimant may also need to adduce some evidence to suggest that the conduct could be related to the protected characteristic, although she clearly does not need to prove that the conduct is related to the protected characteristic as that would be no different to the normal burden of proof.

[91]Where it is alleged that an employer has failed to make reasonable adjustments, the burden of proof only shifts once the claimant has established not only that the duty to make reasonable adjustments had arisen but also that there are facts from which it could reasonably be inferred (absent an explanation) that the duty been breached. Demonstrating that there is an arrangement causing a substantial disadvantage engages the duty, but it provides no basis on which it can be properly inferred that there is a breach of that duty. Rather, there must be evidence of some apparently reasonable adjustment that could have been made. Therefore, the burden is reversed only once a potentially reasonable amendment adjustment has been identified Project Management Institute v Latif

[2007] IRLR 579

Conclusions

[92]Some observations before I come to the Tribunal’s conclusions. The Tribunal noted a lack of notes taken by the respondent during any discussions with the claimant and was concerned by this as it was difficult to see the claimant's own explanation of her needs to the respondent. This was exacerbated by the absence of a ‘sit-down meeting’ with the claimant to discuss what could or could not be accommodated in the job to help her and to work through what adjustments could or should be made. This meant that the claimant was left somewhat on the outside of the decision making process. Albeit it was the respondent’s decision to make, this exacerbated the claimant's feelings of isolation and meant that she became perhaps more entrenched in her position.

[93]We also note the unfortunate timing of the enforced desk move when the claimant had returned to work after a lengthy period of time off work due to cancer-related treatment. This was something which came out of the blue and was not handled (it appears) with particular understanding from her direct line manager.

[94]We also repeat our concern that, although advice was sought by the respondent from various internal departments, that advice and the email setting it out were not directly shared with the witness who came to give evidence to this Tribunal. Mrs Holmes had to be asked about emails and guidance that she had not been shown at the time the decision was made. Although she introduced those documents into evidence and summarised their contents, she also clarified to us that whilst the emails had been discussed they had been effectively received by Emma Proudly and had not been shared prior to that discussion. The Tribunal can well see that that would limit the consideration that the witness in front of us could give to the contents of that advice.

[95]We also noted that we were unable to hear from many of the respondent’s witnesses who were actually involved in the decision making, and that made it more difficult for the Tribunal to piece together the decision making process. The methods used to address the issue and the absence of face to face conversations may be one of the reasons why complaints from the claimant were triggered. The absence of a meeting meant that the claimant was without a platform to explain and to convey the importance of the decision, how the dog helped her and the pros and cons of the different solutions. She also did not have a clear opportunity to explain that she did not take her dog in the car with her on days when she was doing evictions (e.g. the Thursdays.)

[96]We also note that, whilst the claimant did not go off on sick leave immediately after the decision was made about Bella, she did carry on in a robotic manner. She was clearly present and continuing to do her job but, in her words, she was “coping not coping” and was working in a robotic manner. We can see and can well understand that she would have needed to make more effort in order to turn up and do the job. This might well not have been obvious to an onlooker, particularly given that the claimant was a lone worker and therefore would not be observed by others, including managers. She also did not have a prior working relationship with her direct line manager, Mr Shakeel, which could have informed his observations of the claimant and her ‘normal’ presentation at work. His observations of her ability to cope would have been limited given that context. Reasonable adjustments

[97]Turning to the list of issues in this case, the first question to be answered is: did the respondent know or could it reasonably have been expected to know that the claimant had the disability, and from what date?

[98]The actual disability relied on in this case is the cancer diagnosis. The respondent clearly knew of that but not necessarily the related anxiety because that was not particularly clearly communicated to them at all until the reasons on the sick notes changed. At the stage when the content of the sick notes changed it was not necessarily apparent to the respondent that there was a link between that and the cancer.

[99]In any event, the crucial question in the reasonable adjustments claim relates to the alleged PCPs. We were asked to consider two PCPs in this case, and they are the foundation of the reasonable adjustments claim.

[100]The first PCP relied on is: did the respondent have a PCP that bailiffs working from Leeds County Court are not permitted to take dogs with them in their cars whilst carrying out their duties? The respondent did not accept that this could amount to a PCP. Our conclusion in relation to that is that could constitute or amount to a PCP or a practice. Although it is a decision that is made in relation to the claimant, taking into consideration the comments given in the Ishola case, there is sufficient likelihood of repetition (were similar circumstances to arise again) for this to constitute a practice. There is a likelihood of repetition if a similar case arose. From the evidence we saw, we could see what the starting point or underlying practice of the respondent would be. The starting point would be that bailiffs would not be permitted to take dogs with them in the car, subject to some other approach being discussed and agreed. It is capable of being applied to others and not just as a one off decision in the claimant’s case.

[101]However, the difficulty in the claimant's case is that the PCP actually applied by the respondent or which could actually be said to be in place within the organisation differs from that which is in the claimant's List of Issues in the case. The PCP we are asked to judge the case on is a lack of permission to take dogs in the car with bailiffs while they are carrying out their duties. That is not what the evidence discloses to us as being the factual situation in this case. The evidence shows us that there was no blanket practice of not allowing dogs in the bailiffs’ cars because there was a built-in exception for assistance dogs. Assistance dogs would be permitted but other dogs (not classified as assistance dogs), as a starting point, would not be permitted. Hence there is the reference to a different approach in relation to guide dogs and the like (which would be categorised as assistance dogs.)

[102]We have to decide the case on the basis that it was presented and argued during the final hearing. The PCP relied upon by the claimant was clearly set out in the list of issues but was not established by the evidence that was before the Tribunal. The PCP in this case was not the blanket refusal of permission for dogs in bailiffs’ cars. Rather, it was the refusal of dogs, other than assistance dogs, in bailiffs’ cars. (See, for example, paragraphs 32, 41 and 51 above.) Given that that is not the way that the case has been put or presented, we have to conclude that this provision, criterion or practice was not proven as pleaded and asserted by the claimant. That PCP does not, therefore, assist her in establishing a breach of the duty to make reasonable adjustments.

[103]The second PCP relied upon by the claimant was, “that bailiffs working from Leeds County Court are required to go to the homes of members of the public to execute their duties in circumstances that may well be tense and confrontational”. This is a PCP which the respondent accepts was in place in this case. We understand that a bailiff turning up at the house of a member of the public with unwelcome news, if that member of the public is present, is going to be a tense and potentially confrontational situation. Bailiffs will face a level of uncertainty in going to their appointments in terms of knowing what they are going to be faced with when they arrive. What sort of a situation or atmosphere are they going to be faced with?

[104]So, the first PCP (“the dog PCP”) is not proven, but the second PCP (“the confrontational circumstances PCP”) is proven.

[105]Our enquiry then moves on to the issue of substantial disadvantage. We have to consider whether the PCP (the confrontational circumstances PCP) put the claimant at a substantial disadvantage compared to someone without the claimant's disability. The disadvantage referred to in the List of Issues is that the claimant's cancer had given rise to a tendency towards anxiety which meant that she had difficulty in coping with the situations she found herself in whilst executing her duties.

[106]We have to consider the interaction between the PCP and the disability and the disadvantage. The Tribunal has to decide the case on the basis of the evidence presented to it. We cannot assume the relevant links however much we may empathise with the argument being put. The Tribunal has to have the evidential basis for its conclusions.

[107]We looked at the evidence in detail. There was clearly anxiety present in this case. The claimant's emails over the relevant period of time repeatedly say that, and we also heard her evidence (which we accept) that she was experiencing significant levels of anxiety. We can accept that as proof of the said anxiety from a lay witness without necessarily needing additional medical evidence in support. The Tribunal is also prepared to accept that the anxiety was a feature of her cancer diagnosis. It was part of a constellation of symptoms and experiences that she has gone through as a result of the cancer diagnosis. Although the cancer itself may not be the sole cause of the anxiety (the causes may be multifactorial), that does not mean that it is not an effective or significant cause at all or that there is no link between the cancer and the anxiety.

[108]The respondent referred us to other issues (such as money worries) which may have caused anxiety. Even so, when carefully considered, the money worries were linked to the claimant’s absence from work due to the cancer diagnosis. So there is a clear link there which can be traced back to the cancer diagnosis. Likewise we were asked to consider whether the claimant’s degree of isolation caused the anxiety. We can see that that would possibly be one of the causes of anxiety in the claimant’s case. But again, the isolation arose (at least partly) and was exacerbated by having to go through hospital treatment during the Covid pandemic (with all the precautions that entailed). The hospital treatment in question was for cancer.

[109]So, taking the various evidential elements of the case together, we are prepared to accept that there was a relevant link between the anxiety and the cancer, albeit it may not have been the sole cause of the anxiety.

[110]We also note that the claimant may not have suffered from anxiety during the first two cancer diagnoses, but that does not necessarily mean that there was no link. We can well appreciate that when overcoming the same illness for the third time of asking (when the claimant’s resilience has already been severely tested) would be much tougher. It is much harder, we think, to be ‘knocked down’ and to ‘get back up’ for a third time. We can understand and accept that she was more prone to anxiety on this third occasion. This would be a natural reaction, in the circumstances. The claimant’s experience of cancer on the third occasion was different to her experience the first two times. In particular, she went through surgery during Covid restrictions with the all the heightened risks and isolation which that entailed. This was not a situation that she had had to face on the first two occasions. Thus we accept the link between the cancer and the anxiety.

[111]The difficulty in the claimant’s cases arises from the interaction between the PCP and the anxiety. We had to ask ourselves: does the requirement to do the potentially confrontational elements of the job (the PCP) put the claimant at a substantial disadvantage related to the anxiety as compared to those without the disability. In theory we can see an argument that it might increase anxiety and make it more difficult to cope but we cannot decide the case in theory, we have to look at the evidence. In this case there is a lack of evidence on which we can base and find the necessary link. (We are leaving to one side the issue of ‘the dog PCP’ for the moment because it is not proven.) We have to consider whether the exacerbation or any particular difficulty with anxiety was caused by the PCP of going into confrontational situations during her duties (the ‘confrontational circumstances PCP). There has got to be a causal link for the claimant’s claim to stack up. The problem in this case is that the claimant did not explain how her symptoms got worse or how she struggled in practice because of anxiety related to the confrontational elements of the job.

[112]There were a number of relevant factors for us to consider. No report was made to the respondent of anxiety or difficulties in doing the job until after the issue with the dog arose. This would tend to suggest that it was not the confrontational elements of the job (the relevant PCP) which were the problem but the absence of the dog (which is not the relevant PCP). That undermines the causal link that the Tribunal would need to find.

[113]There was no explanation provided of the inter-relationship between the potentially confrontational elements of the job and the flare-ups in anxiety. For example, there was no description of difficulties in actually fulfilling these elements of the job, of going to homes in circumstances that may be tense and confrontational. There was no suggestion that when she faced particular potentially confrontational situations at work, she suffered a noticeable exacerbation in her anxiety. We note that, even once the dog issue was raised, the claimant continued in work and continued to do all elements of her role for several months afterwards, even without the dog and even with her anxiety issues. The claimant continued not only doing the less stressful elements of the job but also the more stressful aspects of the role, such as evictions. She did not ask for home working or restricted duties in order to avoid the biggest anxiety triggers. If going into homes in potentially confrontational circumstances (i.e. the PCP) is the problem in relation to her anxiety (the substantial disadvantage) one might expect to see her request restrictions on the types of work duties she had to perform. One might expect to see a request for an adjustment to the PCP which was said to be putting her at a disadvantage. As it was, she remained doing the full requirements of her bailiff job role either with or without her dog in the car from her return to the job in January onwards. The claimant did not take up the offer of an Occupational Health referral or suggest that any other adjustments would be needed, apart from having her dog with her. Indeed, the claimant did the evictions without having her dog present in the car even during the period when she was routinely taking her dog in the car. (See paragraph 35 above, she explained that she did not take Bella with her on eviction days). The claimant also did not do the proposed stress risk assessment.

[114]There are difficulties in showing that the provision, criterion or practice in question exacerbated the anxiety so as to put the claimant at the relevant substantial disadvantage as compared to those without her disability. The tribunal is not satisfied that there is evidence of a causal link between the PCP and the substantial disadvantage. Consequently, this part of the legal test is not met. There is insufficient evidence of a substantial disadvantage arising from the application of the PCP, and in the absence of that substantial disadvantage the duty to make reasonable adjustments is not triggered.

[115]The Tribunal’s considerations could have stopped at this point but we heard a number of other arguments and so we have gone on to consider them briefly in the alternative. We were asked to consider the issue of knowledge. Even if the claimant established that the PCP put her at a substantial disadvantage, we would have to consider not only whether the respondent knew of the claimant’s disability but also whether the respondent knew or could reasonably have been expected to know that the claimant would be put at the stated disadvantage by the PCP.

[116]In this case the respondent knew of the disability and (by the time the decision was made) ought to have known of the anxiety. However, we have concluded that it did not know (and could not reasonably have been expected to know) of the link between this PCP and the substantial disadvantage. In particular, they could not reasonably have known because the claimant turned down the Occupational Health referral at the relevant time and also did not do the stress risk assessment. There was nothing to ‘flag up’ to the respondent that, aside from the issue of having Bella in the car, the job itself was exacerbating the claimant’s anxiety. Given that lack of actual or constructive knowledge, the reasonable adjustments claim would have to fail for that reason also.

[117]We considered the suggested adjustment. The only adjustment contended for was allowing the claimant to bring her dog with her in the car during the working day. When the Tribunal examines the reasonableness of an adjustment, we have to look at the impact it has or would have on alleviating the disadvantage. In this case the difficulty was that the claimant went to work and did all aspects of her job and even when she was taking her dog with her (i.e. before it was discovered) she did not take the dog with her on the days when the most stressful or tense jobs were to be undertaken (e.g. evictions on Thursdays). It is difficult to say, therefore, that an adjustment to alleviate the anxiety would have involved bringing the dog with her on the basis of the PCP which is proven in this case. Added to which, although it may have been possible to accommodate the dog coming with the claimant in the car, there are other issues that the respondent had to consider. Whilst (all other things being equal) these might not have been sufficient to outweigh any requirement to make the adjustment, the respondent did have legitimate concerns to look at in terms of confidentiality, security of the vehicle, health and safety, risk of escape or interaction with the public and the like. However, it is primarily on the basis of effectiveness of the proposed adjustment to alleviate the impact of this PCP that we would consider it not to be a reasonable adjustment in the circumstances of this case. The proposed adjustment would not have a prospect of alleviating the disadvantage resulting from the PCP (if it had been established) and therefore, unfortunately, the reasonable adjustments claim must fail. Harassment

[118]The Tribunal moved on to consider the harassment claim. It relates to two allegations. First, it is alleged that the claimant's manager shared information about the claimant's request to bring her dog into work with other colleagues without her permission. The claimant draws that conclusion from the later conversation that she witnesses between Mr Bain and Mr McHale.

[119]Our finding of fact, as set out above, is that there was no breach of confidentiality. The witness that we saw denied it, the witness evidence did not support it, and the evidence we had was that at least three other bailiffs had seen the claimant’s dog at work. What was actually said during the May conversation does not indicate or give an evidential basis on which we can assume that they knew that the claimant had asked to bring the dog to work as an emotional support animal. That item of ‘unwanted conduct’ is not proven.

[120]The case does not end there. The second allegation of harassment that the claimant refers to is the comments made by Karl Bain about senior members of staff being permitted to bring dogs into work as described, which the claimant perceived to be mocking and said with the purpose of ‘winding her up.’ I have set out the claimant’s description of what said above. In the absence of a witness at Tribunal to give a contrary version of events we accept that the claimant has accurately described what was said (as the witness before the Tribunal). Indeed Mr McHale’s evidence (so far as it assists in saying what happened) does not contradict her account of what was said.

[121]Was that unwanted conduct? Certainly, it was unwanted conduct from the claimant's point of view. She did not want to see or hear conversations about dogs being allowed to come into work in circumstances where she was struggling to get an adjustment from the respondent to allow her to do that.

[122]Section 26 of the Equality Act 2010 does not stop there though. We have to find that the unwanted conduct was related to the disability and this is the first stage at which the claimant’s claim of harassment falls down. Unfortunately, we cannot see a connection or a relationship between what was said in that conversation and the claimant’s disability. We can see why the claimant thinks that there was (given her personal experiences during this period of time) but the evidence is not there to suggest that the comments that were made were related to her disability. Even if the comments were directed to the claimant wanting to bring her dog into the workplace, there are no references to her mental health and no evidence that they knew about these connections between the claimant's mental health and having a dog at work. There are many potential reasons why an employee might wish to bring a dog to work, not all of them will be connected to any issue of disability. It is perhaps more reflective of the claimant's prior relationship with Mr Bain (which, apparently, had not been a happy one). Indeed we heard the evidence about the incident when the claimant came back to work and sat at her previously allocated desk. We also heard the evidence relating to complaints about Mr Bain’s approach to non-molestation orders. The relationship between the claimant and Mr Bain was clearly not a good working relationship.

[123]Thus we find that the unwanted conducted did not have the necessary relationship to the protected characteristic of disability. We were not satisfied that the burden of proof shifted to the respondent in this regard and it if it had, we were satisfied with the respondent’s explanation as to how the conduct was not related to disability.

[124]In addition, The Tribunal would have to consider whether the conduct had the purpose or effect of violating the claimant's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her. Firstly, looking at the purpose of the comments, I am afraid we are without the evidence to show that that was the purpose of the comments. A ‘hunch’ or suspicion on the Tribunal’s part is not enough. There is nothing in the surrounding evidence to show that Mr Bain deliberately made these comments with the purpose of violating the claimant’s dignity (etc) in line with the wording of section 26.

[125]We therefore considered whether it had the necessary effect on the claimant to meet the section 26 test. In considering this we had to look not only at the claimant's subjective perception but also at all the relevant circumstances of the case and whether it was reasonable for the conduct to have that effect.

[126]The Tribunal accepts that the claimant subjectively experienced the hurt, offence and humiliation that she refers to in her evidence. The claimant has given genuine evidence to the Tribunal, and we had no reason to disbelieve her when she says that those comments had that impact upon her. However, we have to look at the context. The claimant (perhaps understandably) sees this whole incident through the eyes of a person who believes that her confidentiality has been breached, who is vulnerable (having experienced her cancer treatment) and who has had difficulties in getting her employer to engage with the proposal that she should have an emotional support animal. However, her beliefs about her confidentiality having been breached are suspicions and assumptions rather than proven fact.

[127]The claimant was predisposed to think that Mr Bain was ‘getting at her’. Her perception, her subjective experience was that it had the necessary adverse effect on her. However, the Tribunal finds that she had become somewhat sensitised to these comments by her experiences up to that point. It was a genuine reaction to the comments but we do not think, looking at the substance of the conduct itself, that it was reasonable for it to have that effect upon her. There was nothing explicit in the comments which referred to the claimant to indicate that the comments were directed at her or were about her. There was nothing explicitly offensive or humiliating or critical of her or anything to do with her. There is nothing to indicate that it was aimed at the claimant or that it had anything to do with her bringing a dog to work as an emotional support animal. The claimant took the comments that way because of her experiences up to that point but, unfortunately, her own experiences are not the last word on this. We have to look at it holistically. Although the claimant had been seeking permission to have an emotional support animal, that was something that was outside Mr Bain’s knowledge as far as we can see.

[128]Unfortunately, the harassment claim also fails and has to be dismissed. It was unwanted conduct, but it was not related to disability and did not have the necessary purpose or effect within the meaning of section 26.