Ms Rodgers v Ministry of Defence: 1806784/2021 and 1800233/2022

EMPLOYMENT TRIBUNALS

Case No 1806784/2021, 1800233/2022

Between

Ms RodgersClaimant

Ministry of DefenceRespondent

Before

Employment Judge Knowles

In person for claimant

Mr T Wilkinson (instructed by Counsel) for respondent

Date 14 October 2022

JUDGMENT

UPON A RULE 37 STRIKING OUT APPLICATION The Judgment of the Tribunal is that the Claimant’s claims of failure to make reasonable adjustments under Sections 20 and 21 of the Equality Act 2010 which are set out in paragraphs 9 to 11 of her particulars of claim have no reasonable prospect of success and are struck out because the Claimant has no reasonably arguable case that those claims were brought in time or that time should be extended under just and equitable principles.

REASONS

Issues

[1]The Respondent made an application to strike out part of the Claimant’s claims in their response to the claim which was submitted 1 February 2022.

[2]The application is made in paragraph 12 of their grounds of resistance.

The claims

[3]The grounds for the application are that the allegations of failure to make reasonable adjustments relate to various physical features of the Respondent’s premises during the period from the Claimant’s starting work at Leconfield on 3 December 2019. to 18 March 2020. After that date, the Claimant began Special Leave and was at home, not attending the ofﬁce environment. The nature of the allegations differs considerably from the later allegations and they are not linked. The Respondent will aver that there is no act continuing over a period nor has the Claimant put forward any reason why it would be just and equitable to extend time.

[4]That is the application before me today.

Procedure

[5]This hearing was an open preliminary hearing undertaken through HMCTS’s Cloud Video Platform.

[6]There were some issues at the beginning of the hearing concerning the Claimant’s settings for video use. These were resolved before the hearing proceeded. No further performance issues were noted in respect of the platform for the hearing.

[7]I had before me the pleadings in this matter together with another claim of unfair dismissal brought by the Claimant under case number 1800233/2022. The second claim is not relevant to this application.

[8]The Respondent produced a written skeleton argument together case law authorities.

[9]I had case management agenda documents prepared by both parties, including two from the Claimant (one for each claim).

[10]I noted that the Claimant had engaged with the application to strike out in her agenda form and had stated that she was not seeking a remedy to the exact reasonable adjustments of the building and workplace environmental health and safety issues.

[11]The Respondent enquired as to whether or not that amounted to an abandonment of the claim which are the subject of today’s application.

[12]We spent considerable time today discussing the issue of abandonment given that the Claimant was suggesting only that she was not seeking remedy but was as the same time suggesting that she may wish the matters to be considered. Her comments read to me as if she was stating that she was no longer seeking any recommendations that adjustments were made to the workplace because she no longer worked there. I noted that part of the Claimant’s stated reservation about continuing with this part of her claim was that there are other more important aspects to her case. The Claimant made representations suggesting that there was “no point” pursuing this part of her claim.

[13]The matter was then adjourned for 15 minutes to give the Claimant time to consider whether or not she was telling me that she wished to withdraw or continue with the claim, given that there are remedies other than recommendations available, and given that she appeared to me to not fully understand the implications of withdrawal. After that, the Claimant confirmed that she wished to continue with this part of her claim and we proceeded to consider the Respondent’s application.

[14]I heard verbal submissions from both parties and considered them in the light of the documents before me.

[15]I took an inquisitorial approach to the Claimant’s submissions given that she is a litigant in person, to put the parties on an equal footing, and to ensure that I understood basic matters such as the date asserted facts took place upon in the relevant paragraphs of her particulars of claim. I took care not to engage in her application.

[16]Due to the time taken to attend to the Claimant’s video settings, I had insufficient time to deliberate and determine the application so reserved my judgment. The Claimant’s claim of reasonable adjustments in paragraphs 9-11

[17]The Claimant began early conciliation 15 December 2021 which ended on 21 December 2021. She issued her claim to the Tribunal on 23 December 2021.

[18]It is important to note that paragraphs 9-11 in the Claimant’s particulars of complaint are not her only claim of failure to make reasonable adjustments. There is another claim relating to placing her on special paid leave on 18 March 2020 at the beginning of the pandemic and not providing her with the means to work from

[19]Nor are these her only claims, the Claimant form intimating other claims including sexual orientation discrimination, age discrimination and victimisation. It is unclear whether or not the claim includes a whistleblowing claim although the claimant has ticked the box asking for the relevant regulator to be informed. These are all matters that will require further case management in future. As mentioned earlier, the claimant has brought a subsequent claim of unfair dismissal.

[20]The Claimant’s particulars of claim state the following: “9. That the MOD have failed to provide a safe working environment for me and to fully comply with reasonable adjustment requests. On arrival in post at Defence School of Transport, Leconﬁeld, East Yorkshire (DST) HQ Training Delivery from MOD Lyneham, Wiltshire I struggled with the environment of an old 1930’s airﬁeld building that seemed not ﬁt for an ofﬁce workplace human habitation with warped window frames that did not close; mould and peeling paint on the walls; drafts from open doors and windows on all four sides of the building; overhead vents through the ceilings that emerged in every ofﬁce and carried smells, dust and debris (and there is currently a new buildings project at DST); pink ink powder from a broken printer that had apparently according to Rebecca Burrows been like that for at least a year prior to my arrival and had not been attended to by the management staff of Rebecca Burrows and Simon Watkins.10. All of this affected my asthma. and caused fear and stress. I was told by Rebecca Burrows there was no contract to replace the printer; and that it was not in the cleaners’ contract to clean the ofﬁce, they only vacuumed carpets and emptied bins. The solution Simon Watkins and Rebecca Burrows came up with was to paint the ofﬁce. therefore the painters would have to clean it, and this caused me alarm and stress as paint fumes are a major trigger for my asthma. Being newly arrived in post and looking forward to this new job. I was now sent home on Special Paid Leave, and on return was moved about from ofﬁce to ofﬁce, which caused disruption, stress, anxiety. not only for me but for other staff. I asked for a workplace Occupational Health assessment of the building and environment and this was refused. l was then harassed and pressured about myself attend an OH assessment, which made me feel that I was being blamed, rather than the environment and DST taking responsibility for a building that was not ﬁt for purpose as a workplace environment or for an employee suffering from asthma. I consulted with MOD Reasonable Adjustments team for advice, and I also asked DST to be moved elsewhere; I asked Rebecca Burrows to agree to my Reasonable Adjustments passports which has been in place for a number years and implemented by other MOD line managers at other MOD establishments without question and being supportive with empathy and compassion, and she refused to do so. I asked Rebecca Burrows to help me move a table covered in pink printer-ink powder in the stationary storeroom, where l daily needed to go as part of my job role tasks, and she refused. staring at her computer screen she said someone would help me in a few weeks’ time, meaning the new clerk who was being processed. This was January. in any event, the new clerk did not start until about May. Rebecca Burrows forced me to attend an OH consultation, she did not seem to believe me about my established reasonable adjustments and medical conditions that had been cleared and recorded by the MOD. the DBS, recorded on HRMS as a Reasonable Adjustments Passport, the OH that I had had a consultation with just a year previously. and recorded again on renewal of my Security Check clearance in 2017 when my GP provided the MOD Vetting full disclosure of my medical conditions and these were accepted by the MOD and my security clearance renewed for another ten years to 2027. I am not obliged to disclose to a line manager my medical conditions, these are personal and private and that information is held on record by the MOD, I would assume to prevent managers and staff being prejudiced and discriminating about disability. Which is exactly what happened when Rebecca Burrows disclosed to Simon Watkins my medical conditions, and distributed this to other staff in the workplace.

11. l reported my concerns about Health & Safety and the affect on my asthma to the Commandant of DST, Chris Henson, and my concerns about Rebecca Burrows, how she had spoken to me since I arrived in post, and her refusal to assist me. He acted swiftly. The contaminated table was removed from the stationary storeroom the next day. However, all hell broke loose and Rebecca Burrows turned on me and things got nasty. A meeting was held with Nick White to resolve matters and he suggested mediation, which Rebecca Burrows wanted to organise and to appoint her own mediators from the Defence Business Service the HR branch of the MOD (038) for whom she had worked and had close relationships with, I requested that mediators should be independent and impartial and not from the DES and Nick White said to her that if I was not happy with DBS mediators then it was not fair and that both parties had to be happy with mediators and attending mediation, which left us at a stalemate because Rebecca Burrows would not agree to my request. I named Nick White as a witness, but he declined to give evidence, and claimed he had left the MOD and Armed Forces although he was later serving elsewhere during the complaints process. Later Rebecca Burrows invited me to a meeting and this was arranged with the onsite ED&l and l was accompanied by Gary Jones, which I thought was to talk things over amicably and sort things out with a view to getting on with a working relationship moving forwards, however at the meeting Rebecca Burrows read from a piece of paper what she thought of me, that she was OCD, I cannot recall after nearly two years all that she said but I was shocked and hurt, and when I tried to speak and to discuss the OH issues that had caused the conflict, she refused to do so, got up and walked out of the room in a highly upset and agitated manner that astonished and scared me. Gary Jones said to me that he had never seen a line manager behave in that way. I called Gary Jones as a witness in my Formal Complaint of Bullying & Harassment FC 709692 but he declined to give evidence.”

[21]The remainder of the claim form continues in a narrative fashion to raise other discreet issues. Submissions

[22]The Respondent submitted the following:a. There is no real prospect of the claimant establishing that this claim ought to continue despite the time limit issues. In paragraphs 9-11 the contents refer to working environment she left in March 2020. The latest point in time is March 2020. If we look at para 9-11, the issues date back even beyond that. The narrative is that RB was replaced in February 2020. Some aspects date before February. In para 10, there is a reference to January, which must be 2020.

b. If time started to run in March, the Claimant had until June 2020 to bring a claim.

c. On 15 December 2021 the Claimant made her early conciliation notification to ACAS. There has been an 18 months delay in bringing this claim.

d. See the case of Hendricks. The Respondent submits paragraphs 9-11 are specifically in relation to a safe working environment. There is no reference to a continuing state of affairs. Even if there is, and are personnel present throughout, considering the nature of the claim the physical aspect ceased March 2020 when the Claimant was sent

e. It is not apparent that the Claimant is submitted there was a continuing state of affairs. There is no reasonable prospect of satisfying a Tribunal that this was a continuing act.

f. There is no evidence from the Claimant on whether it would be just and equitable to extend time. She has not suggested that it would be just and equitable. See para 6 of the skeleton argument concerning Section 33 of the Limitation Act 1980 which is a helpful guide, but is not intended to be a checklist.

g. The claim is at least 18 months late. This is as significant length of delay as we come across.

h. There will be substantial prejudice to the Respondent, dealing with evidence concerning a working environment dating 2 years ago now. Maybe it has changed. Regardless, the likely cogency of evidence is vastly and significantly affected.

i. It is a matter for tribunal to consider the balance of hardship. It has to be a factor she has significant other claims which she can and is able to pursue.

j. There will always be an element of prejudice to a Claimant not being able to proceed, but this Claimant has a number of claims she is able to pursue.

k. The Claimant has provided no evidence why the claim could not have been brought any earlier.

l. The Claimant has brought other claims in the past as we understand it. There is nothing to suggest she did not know or could not ascertain the time limit.

m. The Respondent accepts that tribunals are often reluctant to strike out a claim, but this is clear cut. The claims are discreet. The issue is not repeated later in the claim.

n. There is no real prospect of C establishing that these claims ought to be found to be in time or that it is J&E to extend time.

[23]The Respondent’s skeleton argument is brief and all material points were covered in verbal submissions. I read the skeleton argument prior to the hearing.

[24]The Claimant confirmed that she had received a copy of the Respondent’s skeleton argument before today’s hearing.

[25]The Claimant submitted the following points which I sent back over with her in order that she could add dates to the points that she was making. The following includes the dates added through that process:a. The reasonable adjustment was an ongoing issue into March 2020. I had asked for a workplace assessment so OH could come in. The Respondent refused. I was still in contact with the reasonable adjustments team until 27 Feb 2020. There were ongoing discussions about OH assessment in Leeds in 2020.

b. The main reason that adjustments were put on hold is coronavirus. We were instructed by the Respondent to go home, and stay at home, on 18 March 2020.

c. We couldn’t anticipate how long it would take. I had no idea I would be at home for such a long time. We all thought it would be a few weeks.

d. The adjustments weren’t resolved then COVID shut everything down. I wasn’t enabled to WFH, I had no contact with anyone, a new line manager was in place, and we did not discuss it. The focus was keeping defence going, everything else put on the back burner.

e. I didn’t leave the office, I was put into protective measures, special paid leave to December 2020. We had that ongoing.

f. There was no discussion about the building or resolving those issues. Because of all of that, I was treated differently, which impacted negatively on me. I wasn’t given a laptop, others were, and they had an attitude towards me because of reporting these issues to the commandant of the school in February 2020. He did act to sort things out. He removed the table the next day, then we were thrown into COVID and it was put on the back burner. As someone who reported failings this contributed to how I was treated being at

g. In 2020 and 2021 there was no expectation to return to the office. The Respondent was trying to protect me. There are 1,000 people, 600 soldiers, 300 military staff, plus civilians at the school.

h. We didn’t get to a safe position until December 2021. I live next door, nothing had changed.

i. The main factors were that COVID put everything on a back burner. I was ill.

j. My mother diagnosed with cancer in March.

k. In 2021 I worked from home. I created and designed ways, templates and formats so we could work online. There were a lot of cases of COVID and other illnesses. We rolled it out with the Royal Marines. We didn’t get to the point of me going back until December 2021 I was working from home from January to December 2021.

[26]I reminded the Claimant that the Respondent was stating that she had not suggested any continuing act and note that everything she had told me appeared to involve a decision which was reached at a point in time rather than something that was a continuing state of affairs.

[27]The Claimant made additional comments about conversations with her new line manager continuing, but again referred to him stating in February that there was nothing they could do, she could not be moved, because all of the other buildings were the same.

[28]I asked the Claimant what she believed would happen next and she stated that she had been to an initial occupational health assessment in January 2020 and she expected to have a face to face assessment but nothing ever came of it because the assessors ceased face to face consultations during the pandemic.

[29]The Claimant’s submission was effectively that the matters she has mentioned were not the end of the story and were put on hold and therefore there was a continuing state of affairs.

[30]The Claimant submitted that she had never asked once she went home in March 2020 and that the issue was never discussed before her dismissal in January 2022. She stated that she expected it to be picked up when she returned to work, which but for the dismissal was expected to take place in January 2022.

[31]I asked the Claimant whether or not it was correct that she had raised previous claims in the Tribunal and she confirmed that she had raised a claim but withdrew it during the proceedings.

The Law

[32]Section 123 of the Equality Act 2010 contains the following provisions concerning time limits: (1) Subject to section 140B proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. … (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.

[33]In Kingston upon Hull City Council v Matuszowicz

2009 ICR 1170

CA the Court of Appeal considered the application of time limits in cases involving alleged failures to make a reasonable adjustment. The Court of Appeal noted that, for the purposes of claims where the employer was not deliberately failing to comply with the duty, and the omission was due to lack of diligence or competence or any reason other than conscious refusal, it is to be treated as having decided upon the omission at what is in one sense an artificial date. In the absence of evidence as to when the omission was decided upon, the legislation provides two alternatives for defining that point (see S.123(4) EqA). The first of these, which is when the person does an act inconsistent with doing the omitted act, is fairly selfexplanatory. The second option, however, requires an inquiry that is by no means straightforward. It presupposes that the person in question has carried on for a time without doing anything inconsistent with doing the omitted act, and it then requires consideration of the period within which he or she might reasonably have been expected do the omitted act if it was to be done. In terms of the duty to make reasonable adjustments, that seems to require an inquiry as to when, if the employer had been acting reasonably, it would have made the reasonable adjustments. That is not at all the same as inquiring whether the employer did in fact decide upon doing it at that time. Both Lord Justice Lloyd and Lord Justice Sedley acknowledged that imposing an artificial date from which time starts to run is not entirely satisfactory, but they pointed out that the uncertainty and even injustice that may be caused could be, to a certain extent, alleviated by the tribunal’s discretion to extend the time limit where it is just and equitable to do so. Sedley LJ added that ‘claimants and their advisers need to be prepared, once a potentially discriminatory omission has been brought to the employer’s attention, to issue proceedings sooner rather than later unless an express agreement is obtained that no point will be taken on time for as long as it takes to address the alleged omission’.

[34]In the Matuszowicz case, the claim was held to be in time in the light of the fact that the failure to make a reasonable adjustment was put as an omission which until a date which was within time. In the absence of the Respondent asserting an intervening act, the Court found that the claim was in time.

[35]A tribunal must therefore consider when time begins for time limitation periods. That will involve determining whether or not there has been an actual decision not to comply in which case that will fix the date. Where there is no decision, the question will be has there been an intervening date which fixes the time limit. In the absence of an intervening date, the tribunal will be considering what is period of time within which the employer might reasonably be expected to do the omitted act if it was to be done. The latter involves imposing that “artificial date”.

[36]The Respondent has submitted in this case that whether conduct extends over a period of time is a question of whether there was an ongoing situation or continuing state of affairs (Hendricks v Commissioner of Police of the Metropolis

[2002] EWCA Civ 1686

, para 48).

[37]The onus is on the Claimant to satisfy the tribunal that it is just and equitable to extend the time limit (Robertson v Bexley Community Centre t/a Leisure Link

[2003] IRLR 434

Court of Appeal).

[38]Case law has made it clear that the Tribunal may be guided, in making a determination on extending time limits, by matters such as the length of, and reasons for, the delay; the extent to which the cogency of the evidence is likely to be affected by the delay; the extent to which the party sued has cooperated with any requests for information; the promptness with which the claimant acted once he or she knew of the facts giving rise to the cause of action; and the steps taken by the claimant to obtain appropriate advice once he or she knew of the possibility of taking action. Cases have also made it clear that lists such as these are only a guide and in some cases some of those factors may not be relevant. Case law has also suggested that the length of, and reasons for, the delay; and whether the delay has prejudiced the respondent (for example, by preventing or inhibiting it from investigating the claim while matters were fresh) are almost always relevant.

[39]In all cases the Tribunal should take into account the balance of prejudice between the parties in granting or refusing an extension of time.

[40]The above sets out the legal position on time limits where that is the issue to be determined.

[41]It should be noted however that the purpose of this hearing is not to determine the issue of time limitation.

[42]This is an application to strike out the claim under Rule 37 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013.

[43]In determining whether or not for the purposes of Rule 37(1)(a) the claim has no reasonable prospect of success, the question is whether or not the Claimant has a reasonably arguable (or prima facie) case either that the claim was brought within time or that time should be extended under just and equitable principles (E v X, L & Z 2020

UKEAT/0079/20/RN

[44]The point is also emphasised in E that the Claimant’s pleaded case should be taken at its highest.

Conclusions

[45]I firstly considered whether the matters referred to by the Claimant in her claim form were omissions that had been determined and concluded by the Respondent on a specific date.

[46]As I noted above, I needed to take the Claimant through her claim form to ascertain the dates of the matters she is referring to in paragraphs 9-11.

[47]In expanding upon each of the issues raised in paragraphs 9-11 in her particulars of claim, the Claimant gave me a date for each of the Respondent’s decisions and actions which was not later than February 2020.

[48]When I noted to her that there appeared to be nothing to suggest the matters, she refers to in paragraphs 9-11 were continuing after that she responded with giving me details of further conversations with her line manager in February 2020. This was another reference to a decision which did not take the timeline any further into the future nor did it indicate a continuing state of affairs.

[49]I note that that matter is not included in the Claim form.

[50]The Claimant then added in submissions that a face to face occupational health referral was to be arranged but it never happened due to the pandemic.

[51]Again there is no reference to anything being put on hold or remaining outstanding in the Claimant’s claim form.

[52]My conclusion is that the Claimant’s answer to the continuing omission point is to seek to introduce new facts which change the nature of her claim. No application to amend has been made nor has the Claimant suggested why, if that is her complaint, it could not have been set out that way in the claim form.

[53]I also concluded that the reference to matters outstanding appear on the face of the Claimant’s submissions to be her understanding. The Claimant submitted that she had never asked once she went home in March 2020 and that the issue was never discussed before her dismissal in January 2022. She stated that she expected it to be picked up when she returned to work, which but for the dismissal was expected to take place in January 2022.

[54]There is nothing in the Claimant’s case suggesting that the matters that the Claimant suggests show that there was a continuing state of affairs had in any way been agreed with the Respondent. As I state earlier, these appeared to me to be the Claimant’s expectations only.

[55]Clearly, if an employee states that draughty windows and doors are affecting her health and asks to be moved then if the employer refuses and the employee continues in that workplace that state of affairs continues.

[56]However, whilst that state of affairs may continue in my conclusion there has been a determination not to further change the premises (beyond the redecoration which had already taken place) or to move the Claimant because there was nowhere to move her to that was more modern or draught free.

[57]In my conclusion, on the facts of this case as pleaded by the Claimant in her claim form, the Claimant has not shown a reasonable argument that Section 123(3)(a) will be engaged, namely that conduct extending over a period is to be treated as done at the end of the period. Even if it were, that period is on her pleaded case a period which ended in February 2020.

[58]Additionally, the Claimant has not shown a reasonable argument or a prima facie case that Section 123(3)(b) will not be engaged, i.e. that the failure to do something is to be treated as occurring when the person in question decided on it. That was, on the Claimant’s pleaded case, the Respondent’s determinations between January and February 2020 that no further works would be undertaken and she could not be moved to another building.

[59]I accept and prefer the Respondent’s submission that the Claimant has no reasonable prospect of defeating an argument that time then began to run and 3 months would have expired before the end of June 2020. In circumstances were the claim was brought in December 2021, some 18 months later, it is clear that the claim was brought well outside the ordinary time limit.

[60]I next considered whether or not the Claimant had shown a reasonably arguable or prima facie case that time should be extended on just and equitable principles.

[61]I noted that the Claimant had at the beginning of this hearing considered abandonment of this part of the claim and that in her view there were more important aspects to her case in the other parts of her claim.

[62]I noted that the Claimant has other significant claims which would not be affected if her claim is struck out.

[63]I took into account the Claimant’s reasons why the claim was put in on the date it was submitted; that she had expected the matter would be picked up upon her return to work after the pandemic.

[64]I noted the hardship that the Claimant had been under as a result of staying at home on her own during the pandemic.

[65]I took into account that the Claimant has some experience of bringing employment tribunal claims and has not suggested that she was not aware of time limitations. Indeed I can see that in paragraph 23 of her particulars of complaint, in relation to another matter, she accuses the Respondent of delay to prevent her being able to pursue that part of her claim. This is clearly a reference to moving her outside of a time limitation relating to that part of her claim. Knowledge to me does not appear to be a factor in this matter despite the Claimant being a litigant in person.

[66]I noted that in her agenda form the Claimant referred repeatedly to not seeking remedy for the failure to make adjustments.

[67]In all I concluded that the Claimant had not demonstrated a prima facie case that she would suffer any significant hardship if her claim of reasonable adjustments in paragraphs 9-11 of her particulars of complaint is struck out.

[68]I noted the period of delay and the difficulty that this would present in dealing with significant issues concerning the facts complained of, the relevant period for assessing disability status (which is disputed), and the possibility of change in the workplace during the period which has elapsed.

[69]I noted that this matter will require further case management and the hearing is expected to require 10 days. It will be many months before further case management can be dealt with and a final hearing listed. I concluded that the matter may come to final hearing up to 3 years after the events complained of.

[70]In all of the circumstances I concluded that the Claimant has not shown a reasonably arguable or prima facie case that it would be just and equitable to extend time by the degree required to bring her claim within time.

[71]I concluded therefore that the Claimant has no reasonable prospect of succeeding in her claim of failure to make reasonable adjustments as set out in paragraphs 9-11 of her particulars of claim.

Conclusions

[1]References in this Judgment to Rules are to rules contained in Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.

[2]On 8 March 2022 I heard the Respondent’s application to strike out part of the Claimant’s claim, specifically the part relating to a failure to make reasonable adjustments under Sections 20 and 21 of the Equality Act 2010.

[3]I reserved my Judgment upon the application due to insufficient time.

[4]I attended to my determination and reasons the same day, 8 March 2022.

[5]My reserved Judgment with reserved Reasons were promulgated in the Respondent’s favour on 9 March 2022. That part of the Claimant’s claim was struck out because the Claimant had, I concluded, no reasonably arguable case that those claims were brought in time or that time should be extended under just and equitable principles.

[6]The Claimant issued an application for reconsideration of my Judgment on 24 March 2022. The judgment was promulgated and sent to the parties on 10 March 2022. The application was made in time.

[7]I did not conclude from reading the application that there was no reasonable prospect of the decision being varied or revoked and on 26 April 2022 invited the comments of the Respondent on the application and of both parties on whether the matter required a hearing or could be dealt with on the papers.

[8]On 27 April 2022 the Claimant responded stating that she is content for consideration on the papers because she has recently been diagnosed with PTSD and would benefit from being subjected to as little stress as possible.

[9]On 9 May 2022 the Respondent responded stating that the reconsideration application can be dealt with on the papers and to do so would be in accordance with the overriding objective. They noted that is also the Claimant’s preference, in view of her health.

[10]I conclude that a hearing is not necessary in the interests of justice. I deal with the matter on the basis of the Claimant’s application and Respondent’s response on the papers. The Application

[11]The Claimant’s application for reconsideration is considerable in length and in detail. It runs to 16 pages and the word count provided in the MS Word document is 9,153 words.

[12]I summarise the application because I consider that is the appropriate way to understand it as a whole. I do not set out below every point included by the Claimant although I have considered each and every point carefully in order to consider her application.

[13]The Claimant’s application begins in her numbered paragraphs 1-7 by adding further evidence concerning matters up to March 2020.

[14]There are two paragraphs numbered 8. In the first, the Claimant refers to being contacted about a change in line manager in April 2021, but her attachment email is dated April 2020. In the second the Claimant refers to complaints about not working from home in April 2020.

[15]In paragraph 9 the Claimant refers to returning to work at the same location after her period of special leave.

[16]In paragraph 10 the application the Claimant makes further comments concerning her return to work in December 2020, suggesting that there was cause to make a complaint to the Employment Tribunal at that stage.

[17]In paragraph 11 the Claimant refers to being given a laptop and being told that she could work from home in January 2021.

[18]In paragraph 12 the Claimant makes incorrectly dated assertions which she suggests span December 2021 to January 2022 but that matters she refers to are those referred to in paragraph 11, occurring in January 2021.

[19]In paragraph 13 the Claimant expresses opinion concerning the Respondent’s motivation in relation to the suggestion that she work from home made in January 2021. The Claimant’s comments are speculative and I do not consider that the Claimant is advancing specific evidence.

[20]In paragraph 14 the Claimant explains that she had time to reflect on the situation in December 2021 over Christmas.

[21]In paragraph 15 the Claimant refers again to no action being taken between December 2019 and 14 January 2022.

[22]In paragraph 16 the Claimant expresses her feelings about the situation and the impact that it had upon her.

[23]In paragraph 17 the Claimant expresses that on 14 December 2021 she realised that the Respondent was not going to make any changes and began her ACAS early conciliation process then Tribunal claim.

[24]In paragraph 18 the Claimant criticises the Respondent for not serving their skeleton argument until the evening before the preliminary hearing before me. The Claimant advances further factual allegations concerning her request for a compassionate transfer to Northern Ireland and concerning her complaints and the process undertaken in relation to those complaints in 2021.

[25]In paragraph 19 the Claimant refers to paragraph 10 of my judgment and appears to criticise this. In that paragraph I merely record that the Claimant had engaged with the application to strike out in her agenda form. The Claimant refers to her naively believing that there was nothing that could be done about the failure to make adjustments because she had now left the Respondent’s employment.

[26]In paragraph 20 the Claimant refers to Matuzowicz, and refers to conditions in the workplace from 3 December 2019 to 18 March 2020 and from 11 to 15 December 2020 and the absence of communication about the issues up to 14 January 2022.

[27]In paragraphs numbered 21 (there are 9 paragraphs numbered 21 each with a separate point of appeal) the Claimant engages with the Respondent’s submissions made at the preliminary hearing. However, although more detail is added, there is nothing new raised by the Claimant. These are, in effect, the submissions and points that were raised at the preliminary hearing.

[28]In paragraphs numbered 22 (there are 3 paragraphs numbered 22 each with separate points of appeal, the Claimant repeats points that she had made at the previous preliminary hearing concerning there being no changes within her workplace therefore there was no prejudice in allowing time to be extended.

[29]In paragraphs numbered 23 (there are 4) the Claimant refers to there being different building on site. There appears to be no dispute between the parties nor any misunderstanding concerning this.

[30]In paragraph 24 the Claimant refers to the absence of a decision to relocate her persisting until she was dismissed 14 January 2022.

[31]In paragraph 25 the Claimant reiterates the continuation of points concerning her transfer and a failure to resolve this issues by the time she was dismissed.

[32]In paragraph 26 the Claimant repeats points concerning her return to work in December 2020 and to the provision of a laptop in January 2021.

[33]In paragraph 27 the Claimant repeats a distinction made between buildings operated by the Respondent. Although she does not expressly make the point, I assume that the Claimant is now suggesting that there were alternative premises that would have been suitable to her at which she could have worked. I do not consider that this was ever in contention; she had made comments about postrotation which I took to mean redeployment within the Respondent to other premises.

[34]In paragraph 28 the Claimant repeats her assertion that there was a continuation of affairs concerning adjustments until January 2022 when she was dismissed.

[35]In paragraph 29 the Claimant, in effect, repeats the above assertion.

[36]In paragraph 30 the Claimant states she would suffer prejudice if her claims were to be struck out.

[37]In paragraph 31 the Claimant states that it would be just and equitable to extend time because all of these matters affected her self-esteem and selfconfidence and unable to speak up for herself.

[38]In paragraph 33 (there is no appeal point in paragraph 32, it is a recital of the relevant paragraph in my judgment) the Claimant refers to her decision to state in her agenda form not to seek remedy and to her comments during the preliminary hearing that there were more important aspects to her case. She seeks to retract those points.

[39]In paragraph 34 the Claimant repeats points about the prejudice that she would suffer were time not extended.

[40]In paragraphs 35 and 36 the Claimant makes assertions concerning matters about her other claims. The Respondent’s response to the application

[41]The Respondent makes the following points in reply to the Claimant’s application:a. In paragraph 1 the Claimant refers to a workplace assessment not having been undertaken, and what effect this might have had. The suggestion is that this ought to have taken place in or before March 2020. Accordingly, it has no bearing on the timeline referred to in the judgment.

b. It is respectfully submitted that paragraphs 2 through to 8 add nothing further to the Claimant’s position. The EJ clearly took note of the Claimant’s mitigating factors as to why she did not proceed with a claim earlier (see paras 25, 63 and 64 of the judgment).

c. The Claimant’s second paragraph 8 relates to conditions in terms of working from home. That was not the subject of the Respondent’s application or the judgment.

d. Paragraphs 9 and 10 allege that there was a continuing state of affairs because the Claimant returned to the workplace in December 2020. The Respondent avers as follows: i. The Claimant’s reference to being put in a ‘converted storeroom’ suggests that she was placed elsewhere to her location in March 2020. This would not be a continuing state of affairs, but a different claim relating to different conditions; ii. The suggestion that the Claimant returned to work in December 2020 and that the conditions were part of a continuing state of affairs does not appear in the Claimant’s Particulars of Claim. The EJ recognised that special leave was until December 2020 (para 25e) and that the Claimant alleged that a safe position had not been reached before December 2021 (para 25h). However, he also recognised that the Claimant’s response to the continuing state of affairs point was to introduce new facts, without an application to amend (para 52). That is the effect of the Claimant’s reference to December 2020; iii. The EJ’s conclusion, that the allegations refer to matters that were determined (para 56), is sound (as a quick read of paras 9-11 of the Particulars of Claim demonstrates); iv. It should be noted that, even if the Claimant were correct, the latest date of the Claimant having been in the office would be circa 4 January 2021 (see her paragraph 11). That is still more than 11 months prior to ACAS being notified. The result would likely be the same in any event; v. The suggestion, in paragraph 11, that there was always a prospect of returning to the workplace, does not represent a failure to make reasonable adjustments to the work environment: the Claimant was not working in the office, therefore there was no PCP, no disadvantage and no duty to make adjustments.

e. It is respectfully submitted that paragraphs 12 to 17 add nothing further to the issues at hand.

f. Regarding paragraph 18, the Respondent provided the skeleton argument more than 24 hours in advance of the preliminary hearing. There was no order for a skeleton argument to be produced and thus the Respondent was not in breach of any such order. The document was provided in advance in order to assist the Claimant and the Tribunal; the Respondent was under no obligation to do so. The authorities were all those which the Tribunal would already have been familiar with, and which the Tribunal will have had to have regard to, irrespective of whether the Respondent sent them to the Claimant and/or sought to rely upon them.

g. It is not clear what point paragraph 19 is making. As noted in the judgment (para 12), considerable time was spent by the EJ discussing the nature of the application. The Claimant was also given time to consider her position (para 13).

h. As to paragraph 20, Matuszowicz is settled law. The Respondent’s understanding of the EJ Knowles’ judgment is that the EJ concluded that, in any event, time started to run in March 2020 because matters had actually been decided (rather than there having been a failure to do something, which would have required consideration of when that ‘something’ ought reasonably to have been done); see paragraph 56 of the judgment.

i. The various paragraph 21s deal with arguments already discussed or with matters which were taken into account by the EJ. The EJ appropriately took into account the Claimant’s arguments, including those in relation to why the claim was not submitted sooner (paragraphs 25, 64 and 65). The Claimant’s position was (again, appropriately) balanced with that of the Respondent.

j. It is submitted that the Claimant’s paragraph 22 does not add anything to the issues. As to paragraph 23, it is submitted that it’s actually irrelevant whether the buildings were the same; the point is that the Claimant had been told that she could not be moved (i.e. decision made, so not a continuing state of affairs).

k. Paragraphs 24 to 34 have, broadly, been addressed in relation to other paragraphs. Paragraphs 35 and 36 are not relevant to the issues before the Tribunal. The Law

[42]Rule 70 of Schedule 1 to the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 sets out the right to apply for reconsideration. Rule 71 deals with the time in which an application should be made and how. Rule 72 deals with procedural matters concerning disposal.

[43]There is only one ground for reconsideration in the rules which is where is necessary in the interests of justice.

[44]I must seek to give effect to the overriding objective to deal with cases ‘fairly and justly’ under Rule 2 which includes ensuring that the parties are on an equal footing; dealing with cases in ways which are proportionate to the complexity and importance of the issues avoiding unnecessary formality and seeking flexibility in the proceedings; avoiding delay, so far as compatible with proper consideration of the issues; and saving expense.

[45]In Stevenson v Golden Wonder Ltd

1977 IRLR 474

, EAT, Lord McDonald said of the old review provisions that they were ‘not intended to provide parties with the opportunity of a rehearing at which the same evidence can be rehearsed with different emphasis, or further evidence adduced which was available before’.

[46]There must be finality in proceedings and the reconsideration process should not generally be used to gain a “second bite at the cherry” (Todd t/a Hygia Professional Training v Cutter

UKEAT/0063/07

Conclusions

[47]In my conclusion, the Claimant has raised no material new points.

[48]I firstly make some generic observations concerning the application.

[49]I have no doubt that the application has been made in good faith and that the Claimant genuinely believes that the judgment which I made previously which was not in her favour ought to be changed.

[50]However, the Claimant’s application for reconsideration is in the vast majority of its content a repetition of the points which were made at the preliminary hearing.

[51]Many of those points are made repetitively in the application.

[52]There is additional factual evidence provided in some parts of the application. There is simply more detail provided.

[53]The last hearing was listed for 3 hours. That included the time to hear from both parties but I had to reserve my judgment.

[54]The Claimant has made a written application for reconsideration which can barely be read in that time.

[55]But the points made, where additional evidence and detail has been provided are more of the same points which were available to the Claimant at the time of the last preliminary hearing

[56]Notably, they are not points made in the claim form.

[57]The application is, I regret, an attempt to avoid the time limitation issues presented by the Claim by introducing new matters which were never mentioned in the original claim form. There has never been any application to amend the claim.

[58]I now turn to some details concerning the application.

[59]Paragraphs 1-7 add additional details about the matters which were considered at the preliminary hearing covering the period to March 2020. There is nothing in the additional information within these paragraphs which advance the Claimant’s claims concerning time.

[60]None of the matters set out in paragraph 8 concern issues set out in the Claimant’s claim.

[61]Paragraphs 9 to 11 concern matters which were raised at the previous preliminary hearing; they amount to repetition.

[62]Paragraphs 12 to 17 add nothing further other than the Claimant giving further reasons why she waited before bringing her claim. These appear to be additional points having reflected on what she might have said at the hearing having read the judgment. I do not doubt that they are true expressions of how she felt at the time but they do not advance her case concerning there having been a continuing act. They may go towards justice and equity in relation to extending time, but they are not matters which would lead me to conclude that she has a prima facie case that time should be extended. I previously took into account what the Claimant told me about the hardship she suffered during the pandemic and during the period of delay.

[63]In relation to paragraph 18, the Respondent sent their skeleton argument on the eve of the hearing but was under no obligation to do so. I appreciate that the Claimant may have said more had she had more time to reflect on the skeleton argument but I take it that the content of her application for reconsideration is the full extent of what she might have said had the skeleton argument been delivered earlier. The impact of the timing of the delivery of the skeleton argument can therefore be accounted for through this reconsideration application.

[64]Paragraph 19 appears to be objection to a paragraph in my judgment where I simply record what the Claimant had set out in her agenda form. The Claimant had engaged with the strike out application in her agenda form.

[65]Paragraphs 20 to 22 in the application for reconsideration are repetition with some more details added. The additional details do not advance the Claimant’s case in answering the Respondent’s application to strike out her claim.

[66]Paragraph 23 conflates issues concerning premises. It was always understood that the Respondent had other buildings they might have moved the Claimant to. The Claimant made repeated reference to redeployment at the preliminary hearing.

[67]Paragraphs 24 to 29 are repetition of points already made in the previous hearing or earlier in the application.

[68]Paragraph 30 repeats issues raised at the previous hearing. I took into account prejudice to the Claimant in determining whether or not to strike out the relevant parts of her claim.

[69]Paragraph 31 adds nothing material to the claims of hardship during the period of the pandemic and during the delay in pursuing her claims; I took hardship into account.

[70]Paragraph 33, specifically the retraction sought by the Claimant, are the very reason I gave the Claimant more time to reflect when she appeared to give up her claims at the outset of the preliminary hearing. Paragraph 34 is repetition.

[72]Paragraphs 35 and 36 concern the Claimant’s claims which were not struck out, and had no relevance to the preliminary hearing or the claims under consideration other than to note that the Claimant had other claims which she had indicated to me, whether retracted or not, were more important to her.

[73]Looking at the application for reconsideration in the round, in my conclusion the Claimant is seeking both to rehearse points which were considered at the previous hearing and to further adduce evidence which was not set out in her original claim but was available before.

[74]The Claimant is, I conclude, seeking a second bite at the cherry.

[75]The Claimant’s application for reconsideration is not well founded and is refused.

Introduction

[1]The claimant’s complaint of sexual orientation discrimination in claim number 1806784/2021 is dismissed upon the claimant’s withdrawal of it.

[2]Whilst no pleaded complaint was identified, for the avoidance of doubt, the claimant’s complaint of age discrimination in claim number 1806784/2021 is dismissed upon the claimant’s withdrawal of it.

[3]The claimant’s complaint of whistleblowing detriment in claim number 1806784/2021 is dismissed upon the claimant’s withdrawal of it together with and any such complaint or complaint of automatic unfair dismissal based on any protected disclosure in claim number 1800283/22, albeit no pleaded complaint of that nature was identifiable.

[1]These are claims by Miss Rodgers against her former employer the Ministry of Defence. She had been a civilian employee and the claims were identified at an earlier preliminary hearing by Employment Judge Maidment in August of last year. That involved a lengthy and careful consideration of the claimant’s two ET1 claim forms and we are dealing therefore with the issues identified on that occasion, and reproduced – with some modification – in the agreed list of issues. A copy of the Case Summary from that preliminary hearing is now attached as an endnote to this decisioni.

[2]Our findings therefore are only necessarily those that we need to make to decide those specific issues. We have to comment that there has been a large volume of material presented particularly by the claimant both in the form of her statement and other documents both within the bundle and also additional documents provided by email during the course of this Tribunal, but the vast majority of that material unfortunately is not relevant to the issues we have to decide. The claims

[3]In terms of the issues there are claims in respect of the claimant’s disability. That disability has not been admitted by the respondents. It is that she suffers from asthma and there are complaints of failures to make reasonable adjustments and also a complaint under section 15 of the Equality Act, disability related discrimination, that is unfavourable treatment because of something arising in consequence of that disability. There is also a complaint of harassment in relation to an alleged comment made by the claimant’s former line manager Mr Moore.

[4]There are also further complaints of harassment but related to sex (alternatively direct sex discrimination). These are in respect of comments on the part of the former commanding office of the Defence School of Transport where she worked at Leconfield, that is Mr Watkins.

[5]There is also a complaint of victimisation connected to the complaint of unfair dismissal. That is because the claimant issued her first set of proceedings alleging discrimination shortly before her employment was terminated on 14 January 2022, and that is of course admitted to be the doing of a protected act.

[6]We have of course considered the definitions in the relevant statutory provisions but there is no real dispute about the law in this case1.

[7]It is most convenient therefore to deal with the allegations in chronological order, addressing the material legal and factual issues as they relate to each complaint. Sexual harassment/direct discrimination

[8]Firstly there is a complaint of harassment related to sex or alternatively direct sex discrimination. That is in respect of a statement made by Mr Watkins in the course of an internal investigation whereby the claimant had made allegations of bullying and harassment against Mr Moore and he had made a counter allegation against her and Mr Watkins’ statement to the investigating officer was in an interview on 9 March 2021. That interview was recorded by the interviewing officer Mr English and is therefore expressed in the third person and it is Mr English’s summary of what he was told. However Mr Watkins did sign to agree that statement on 22 March 2021.

[9]Complaints of harassment and direct discrimination are mutely exclusive under section 212 of the Equality Act. If an act amounts to harassment it cannot also 1 Section 98 of the Employment Rights Act 1996; Sections 13, 15, 20,26,27 and Schedule 8 of the Equality Act 2010 together with the burden of proof provisions in section 136 be a detriment for the purposes of the section 13 direct discrimination complaint. And in terms of a harassment complaint, we have to look at whether or not this is unwanted conduct, whether it has the purpose or the effect of creating a prescribed environment for the claimant or violating her dignity, and whether it is related in fact to the protected characteristic of sex. The methodology is clearly set out in the established case law, most principally Richmond Pharmacology v Dhaliwal [2009[ ICR 724.

[10]If we determine that the conduct was indeed unwanted and related to sex and if it had the purpose or intent of violating dignity or having the prescribed consequences, then of course the harassment claim is borne out. If we do not find that then we have to look at whether it nonetheless had that effect. We have regard then to the subjective perception of the claimant, but also to all the circumstances of the case and there is also an objective element as to whether it could reasonably be construed as having that prescribed effect. And in that context the Richmond Pharmacology case is relevant because although it enforces the importance of protecting those with protected characteristic against unwanted conduct, it also warns against hypersensitivity2. It is not every instance complained about that will meet the necessary threshold of harassment, which is a high threshold which must actually violate their dignity create an intimidating, hostile, degrading, humiliating or offensive environment for the claimant not merely one where they feel uncomfortable or inconvenienced to any lesser degree.

[11]The specific allegations identified at Judge Maidment’s preliminary hearing are four specific comments the claimant has extracted from Mr Watkins’ statement. We firstly make the observation that, of course, the context in which unwanted conduct is said to have occurred is important. The claimant has extracted specific instances where there is reference to her as a woman, but we have to have regard to the entire circumstances in which that statement was made.

[12]Of these specific allegations, the first one we can effectively ignore. In front of Judge Maidment, when we look at the original terms of his case management order, it is quite clear that he was led to believe that the complaint was that Mr Watkins has said that he, that is Mr Watkins, “did not like working with women”. That is not something that is recorded anywhere in the statement. We do not know why Judge Maidment was misled in that way. But subsequent to the issue of his written Order, the parties agreed that this comment was not in fact included within the statement and therefore it was substituted with the complaint that now appears in the agreed issues. That is that Mr Watkins had said that it was the claimant who “did not like working with younger females”. However, no one at the time of this amendment to the issues appears to have 2 At paragraph 21 “We accept that not every racially slanted adverse comment or conduct may constitute the violation of a person’s dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase.” addressed their minds as to whether that comment could also possibly amount to harassment related to sex. Of course the earlier allegation that Mr Watkins had said that he did not like working with women, on the face of it could well amount to such unwanted conduct. The mere fact that there is also reference to “females” in the phrase “younger females” is however extraneous because this is not of course a complaint of age discrimination in any form. At Judge Maidment’s hearing it was clearly identified that although the claimant had ticked the box to say age discrimination on her first ET1, there was nothing within the narrative of that claim and she did not identify anything before Judge Maidment to indicate that she was bringing such a complaint at that stage. Subsequently she did seek to introduce a complaint of age discrimination within her second claim, but Judge Maidment in a Reserved Decision, having received written representations, rejected any application to amend and struck out any such complaints.

[13]What Mr Watkins said was, in fact, that in his opinion there was a common theme with Miss Rodgers’ actions that “she resented being managed and held to account, particularly by younger female members of staff and males, and that she resented being asked to provide evidence of her health and would claim on numerous occasions that she felt upset, distressed and undermined, claiming that numerous people’s actions were unprofessional towards her and used emotive language such as feeling betrayed, under attack from three sides, not being treated fairly and information being used as a weapon against her”.

[14]In its general context that is therefore his evaluation of the claimant’s behaviour at work, particularly during the time preceding the pandemic when she was actually in the office. There is nothing on the face of it to indicate that that reference to “females”, which was clearly a comment upon a strained relation with her then line manager Ms Rebecca Burrows – who was indeed junior to her in age- had anything to do with the claimant’s sex or indeed with sex at all.

[15]That leaves us with a further three allegations identified before Judge Maidment and which are readily identifiable within Mr Watkins’ statement.

[16]At first it alleged that he had said that the claimant did not like men. What he actually said, this is also related to the other complaint that he said the claimant had a problem with robust banter, is that he reported his initial contact with the claimant when she first arrived at Leconfield as it is recorded by Mr English, as: “She had also said to him that she didn’t like males which raised alarms with him”. He also reported that she also had some medical issues and asked for some working environment adjustments to be made. As the HQ was a military working environment sometimes “robust banter” could be overheard from other conversations, he was concerned about how this may be received and as a result mentioned in the interview that if she had concerns she should immediately raise them with her line manager. Additionally the warrant officers were instructed to watch their Ps and Qs when in the registry to avoid any offence.

[17]So in its total context this records a conversation that Mr Watkins had with the claimant when she first arrived where he understood that there may be issues that she would be offended if she overhead what he refers to as “robust banter” and he therefore took steps to protect her within that environment by enforcing the view that she could report it to her line manager and also giving instructions that those who might be prone to such inappropriate conduct should be more careful.

[18]The fact that that conversation took place is indisputable because it is recorded in a contemporaneous email from Mr Watkins to Ms Burrows and he there records the claimant’s reaction. He also records in that email that she described this as originating from her concern at her earlier place of work within the MOD which she described in Mr Watkins’ words as “intolerable”. Although the claimant disputes that she used that word we do note that it is in keeping with the somewhat emotive and perhaps hyperbolic form of language that she is prone to, and therefore we are in these circumstances quite happy to accept that she did use that phrase and that is why Mr Watkins took the action he did to seek to protect her within the new working environment.

[19]So within that context, all that Mr Watkins is reporting in the course of his interview is an undisputed conversation that took place. He clearly on that basis did not intend his comment about the claimant’s interaction with him on that occasion to either violate her dignity when she read it, or to create the prescribed offensive environment for her.

[20]So the only issue would be whether the claimant perceived it to have that effect related to her sex and whether objectively that is reasonable. And in context we are quite satisfied that it is not objectively reasonable. This is an example of the claimant’s hypersensitivity after the event in seeking to impute ill motives and extract any reference potentially made in relation to her sex from which she might construct a claim. No doubt she was upset at realising the unfavourable view that Mr Watkins had formed of her but it is not related to her protected characteristic but to her behaviours.

[21]The remaining allegation in this context is that Mr Watkins has referred to the claimant as “a clever woman”. There is no dispute that he did that. It is reported that he has called Miss Rodgers “a clever woman but that through her actions he felt that she could be manipulative” The word “woman” is of course unnecessary but we accept Mr Watkins’ evidence that what he was referring to was his general perception of the claimant that she was an educated person, that she was well read, extensively travelled and clearly articulate. He need not have referred to her as a woman but in doing so again it is quite evident that he did not intend any adverse effect upon the claimant related to her sex. And equally, viewed objectively, it cannot reasonably be construed as creating an unwanted environment for her. This is entirely different to the case where the use of the word woman might be in a pejorative context, for instance if someone referred to somebody as a “stupid woman” or worse, but that is not what happened here.

[22]So on the face of it those facts even though unchallengeably and entirely established on the face of Mr Watkins’ interview do not amount to harassment.

[23]In any event this is an allegation going back to March of 2020. The claim was not issued until 23rd December 2021, after a period of ACAS early conciliation which took place only between 15th and 21st December. It is on the face of it considerably out of time and we would not have held it just and equitable to extend time in those circumstances.

[24]The claimant has experience of bringing Tribunal claims before. She knows how to contact advice sources or ACAS, and it is only very belatedly in this case that she advanced any reason whatsoever for the delay in bringing this claim to the Tribunal. And that is, although it is not mentioned in her lengthy witness statement, that she now alleges that she was informed by a Mr Ginn of the respondent’s HR personnel department that she needed to exhaust internal processes before she could bring a Tribunal claim. That is the first time that she has actually made that statement and she has not given direct evidence that that was the reason why she delayed in this case or at what point she then decided to bring this charge. But in any event on its facts the claim of sexual harassment is not made out, even if time were to be extended.

[25]We must also consider whether it therefore could amount to direct sex discrimination, that is, is it less favourable treatment of the claimant because she is a woman. We are quite satisfied that there is no evidence, absent any proof of the charge of harassment, from which we could possibly conclude that this could be less favourable treatment because of sex so as to establish that alternative basis of claim. We accept Mr Watkins’ evidence that the reason he formed this opinion of the claimant was not because of her sex but because of the observed and reported behaviours while she was working under him. Disability

[26]The final allegation of harassment is in relation to disability. We pause, therefore, before we consider this and the other disability discrimination complaints to determine the disputed question of whether the claimant in fact met the definition of disability.

[27]That of course must be a physical impairment which is long term, that is having lasted more than 12 months and which has a substantial adverse effect upon the claimant’s ability to carry out normal day to day activities. There is no dispute in this case that the claimant does have a physical impairment that is asthma. Nor that it is long term. She was first diagnosed with asthma as a child and she has continued to suffer from that condition at various stages throughout her adult life as well.

[28]The issue is whether or not that condition has a substantial adverse effect upon her ability to carry out day to day activities. On the evidence it is quite proper for the respondents to have made no admissions on that regard because it is not “severe asthma” on the claimant’s own admission. The one occupational health report which address this matter also indicated that they did not think it was a disability, although the claimant properly points out that this had been a very short report and only carried out remotely.

[29]Also the claimant has not helped herself by not providing us with substantial or any indeed medical evidence apart from the briefest note from her GP.

[30]However on balance we do consider that the claimant does meet the definition of a disabled person. That is because the substantial adverse effect of her disability need only be more than minor or trivial. And although the claimant, we are also satisfied where it suits her, exaggerated the past effects of her asthma or the likely future effects and is therefore oversensitive about her susceptibilities, we accept from her impact statement that she was indeed prescribed a different inhaler from 2007 when she had experienced particular episodes. She has remained upon that drug taken daily ever since and she also has a second inhaler to use in case of emergency. At paragraph 5 of her impact statement she identifies what she knows to be the triggers in her case that may exacerbate her asthma. We take that statement at face value as being an empirical observation of what has affected her. But although we properly been referred to the case of Primaz v Carl Room Restaurants Ltd. EA 2020- 00110-JOJ, we are able to distinguish that case because in that case which involved a similar set of facts though different conditions, the matter was remitted to the Tribunal for consideration of whether or not there was properly any objective evidence of an adverse effect rather than the claimant’s belief as to how certain situations will affect her physical condition.

[31]But this is different. As we say we believe at paragraph 5 of the claimant’s impact is empirical evidence of how it has actually affected her and we also in this context take account of the period of the pandemic from early 2020 onwards. We take note of the fact that the government advice at that stage was that those with any underlying condition, particularly of a respiratory nature which asthma is, should take particular caution. Even without any actual confirmation from her GP, it is reasonable in those circumstances that the claimant considered herself to be more clinically vulnerable than the average population. She had to protect herself because she certainly did have a diagnosed underlying asthmatic condition and that therefore would necessarily we find have had a greater impact upon her ability to carry out such normal activities as were permitted during the various periods of lockdown in the pandemic. So on balance we conclude that she does meet the definition for those reasons. Disability harassment

[32]In relation to the allegation of harassment related to that disability, this is in connection with an observation made by Mr Moore. It appears that he made that on a log (the date when he prepared that log is unknown) but it was submitted by him internally so almost certainly therefore within the course of the investigation into the claimant’s grievance and his counter grievance. As of 20 May 2020, so shortly after the start of the pandemic and the lockdown on 23 March, he observed that the claimant was wishing to carry out work from home but notes - and of course she was at home at that point, as civilians were not required to attend the barracks- that although expressedly eager to work from home he observes that she nonetheless was complaining that she had insufficient data access or broadband width or connectivity to the internet at home to enable her to conduct training. So he is simply observing that the there is an incongruity between her saying she cannot conduct training, which would not require access to a secure network, but she would still wish to work from home where presumably the same restrictions on her access to the web would prevail.

[33]That observation is repeated in Mr Moore’s complaint against the claimant which he raised on 5 or 6 November of 2020. So the claimant was aware of it from the time she was notified of that complaint and subsequently she obtained access to the log which repeats that information. Any complaint in respect of this comment is also therefore out of time. But on the face of it, and in any event, neither iteration of this observation comment does what is alleged in the identified issues, which is that “Mr Moore expressed disappointment at the claimant requesting to work remotely, despite her on his account that she did not have enough data to do so”.

[34]There is nothing to suggest that this is properly even unwanted conduct, nor that it is related to the condition of asthma, and certainly not that Mr Moore intended these observations to violate the claimant’s dignity or create an offensive environment for her. And objectively it cannot be construed as doing so. Indeed in the course of the hearing it seemed unclear whether the claimant really understood that she was seeking to bring that complaint although it was identified by Judge Maidment as something that she had stated to him. Disability related discrimination/failure to make reasonable adjustments

[35]On the complaint of discrimination related to disability, the something arising in consequence of the asthma, is said to be the claimant needing to shield during the time of the pandemic. And the unfavourable treatment to which she says that she was subjected because of that “something arising” is being summoned to an informal misconduct interview to be held in person in July of 2020. This is also brought as a complaint of failure to make reasonable adjustments.

[36]Very shortly the respondent did not “require” the claimant to attend an in person interview. That interview never took place. The reason it did not take place was because having been issued with that invitation on 16 July the claimant responded to Mr Moore on 18 July categorically refusing to attend stating that she had not committed any misconduct and she would not attend any interview. She did not at that stage give any indication that she would be prepared to attend the interview were it not to be held in person. The invitation to attend the barracks had still made it clear that appropriate safeguarding procedures would be in place with social distancing and arrangements made as appropriate, but because the claimant refused to attend Mr Moore then convened a formal misconduct meeting. That too was initially to be at the barracks and the claimant at that stage did not raise any objection to attending in person. And indeed subsequently she indicated that she would so attend, though ultimately it was postponed and not reconvened until some time later and certainly never held.

[37]There is no indication that the respondents had any practice of insisting that the claimant attend if appropriate representations were made that that was unsuitable. That is clear because subsequent meetings were held with the claimant joining remotely by telecon whilst others attended physically. And Mr Moore himself was prepared to extend the claimant’s time on special paid leave and not return to the barracks along with others on 3 August because she maintained her position that she was required to shield because of her underlying medical condition. As we have said there was no indication until after the event that the claimant considered that she would have attended had it not been in person but she would attend by video or by telephone.

[38]Mr Moore has given evidence, which we accept, that in the context of the accusation that he was seeking to raise with the claimant - who was somebody he had only managed remotely since 9 April and therefore never met - it was more appropriate to see her in person. He had no indication that she could not come into the barracks. She had indeed attended for work purposes albeit at a quiet time at the end of June, and she was at that point intending to return on 3 August along with other civilian staff.

[39]In terms of the section 15 claim, there is no indication whatsoever that the reason why the claimant was initially invited to an in person interview was because she was shielding. She was invited to that interview because there was an allegation of misconduct against her that was most appropriately dealt with in person and there was no indication that she would not in fact be able to attend the barracks.

[40]In terms of the failure to make reasonable adjustments, there was no provision criterion or practice that the claimant should only attend an in person interview. Such an interview was never in fact pursued and the respondents could not reasonably have known, because no objection was made at the time, that the claimant would in fact be unable to attend such an interview at a point when she was then contemplating very soon afterwards coming back into work, perhaps on a phased return but coming back to work nonetheless.

[41]The further allegation of a failure to make reasonable adjustments is hard to understand. In front of Judge Maidment the provision, criterion or practice relied upon was identified as “the requirement of an administrative support officer to fulfil his or her duties including as to the location of work”. And that is an attempt to provide a legal framework in which the claimant can raise her concern that she was not provided with a Ministry of Defence enabled laptop until January 2021.

The Law

[42]What happened is very simply that after the announcement of the first lockdown on 23 March 2020, civilian MOD staff working particularly where the claimant was with the School of Transport were not required physically to attend. This being the public sector there was no provision of the furlough scheme and the expectation was therefore that staff would work from home. But work from home in this context simply means they are not required to come in to the physical location of the barracks. Special provision was made for those who were in that sense working from home but were not for whatever reason physically able to do so because they did not have the appropriate equipment or appropriate connectivity and for them a special category was developed as special paid leave. So the claimant was not required to go into work but she was still employed and there was a concession that she would be paid in full even though she was unable to actually carry out any work remotely. In that sense she was in exactly the same position as every other civilian employee whether they were in fact certified by their doctor as being clinically vulnerable and having to shield, or whether they were those like the claimant who did have a genuine reason for believing that she was clinically vulnerable, or those who had no clinical vulnerability of any nature but still could not under the provisions of lockdown attend at work. It is quite clear that there was insufficient resource to enable all people in that position to be issued with an MOD laptop. The claimant makes much reference to the fact that it was advertised there were 5000 available across the whole of the Ministry of Defence but it is quite clear that they were not provided to the School of Transport and in particular there is internal memorandum from August, so around the point where civilians were starting to return, to indicate that only 2% of the workforce at home in fact had access to such equipment.

[43]Applying the recommended schematic approach in The Environment Agency v Rowan [2008} ICR 218 3 it is very hard, in fact impossible ,for us to construct out of that a proper provision, criterion or practice that places the claimant as a disabled person at a significant disadvantage compared to those who are not. If there was any “PCP” it was more precisely that those who were , for whatever reason, not required to attend the workplace during the pandemic, but who did not , for whatever, reason, have the necessary IT equipment to at that time to work substantively from home , were to remain on special leave at full pay. Of course it was a difficult situation. She would have preferred to be able to work had she access to an MOD laptop, but that was simply not possible and therefore there was no adjustment that would have alleviated the adverse effect of any properly identified provision, criterion or practice in relation to her disability. And as we have said the claimant remained on special paid leave even after the nominal return date for most employees of 3 August until an MOD lap top was sourced for her, at which point any conceivable failure to make adjustments will have ceased. Victimisation

[44]We turn to the circumstances of the dismissal. There is firstly another Equality Act complaint which is of victimisation. Chronologically the claimant issued her first Tribunal claim on 23 December of 2021 and she was notified of the decision to dismiss her on 14 January. However the dismissal meeting had taken place on 14 December before the claimant issued her claim, and we accept the evidence of the dismissing officer Mr McIlroy that although he was aware in the interim period that the claimant had brought the Tribunal complaint that had no bearing whatsoever upon his decision which had effectively already been made. All the surrounding circumstantial evidence supports that view. We shall come 3 27. In our opinion an Employment Tribunal considering a claim that an employer has discriminated against an employee pursuant to (sc now section 20 of the Equality Act 2010) must identify:•

(a) the provision, criterion or practice applied by or on behalf of an employer, or

•

(b) the physical feature of premises occupied by the employer,

•

(d) the nature and extent of the substantial disadvantage suffered by the Claimant. It should be borne in mind that identification of the substantial disadvantage suffered by the Claimant may involve a consideration of the cumulative effect of both the ‘provision, criterion or practice applied by or on behalf of an employer’ and the, ‘physical feature of premises’ so it would be necessary to look at the overall picture. In our opinion an Employment Tribunal cannot properly make findings of a failure to make reasonable adjustments …without going through that process. Unless the Employment Tribunal has identified the four matters we have set out above it cannot go on to judge if any proposed adjustment is reasonable. It is simply unable to say what adjustments were reasonable to prevent the provision, criterion or practice, or feature, placing the disabled person concerned at a substantial disadvantage. to this in due course, but Mr McIlroy considered that he was only concerned not with establishing the facts of the alleged gross misconduct but with considering the appropriate sanction. He had determined that it did amount to gross misconduct so unless there was substantial mitigation his decision would have been likely to dismiss the claimant. So we accept his evidence that he had effectively taken that decision after the meeting on the 14th before he was aware of the issue of the claim and indeed the internal evidence that he then sought advice as to whether it was appropriate still to issue that decision given the pending Tribunal proceedings indicates very clearly that his view was not initially impacted by that matter. He was solely looking at the merits of the dismissal hearing which he had conducted. Unfair dismissal

[45]So that brings us to the unfair dismissal complaint. This is a somewhat unusual situation. As we have said the claimant was being managed remotely by Mr Moore from 9 April and the events that led to termination begin with an invitation by Mr Moore to the claimant on 16 July to attend the informal misconduct meeting on 27 July. The reason for that is clearly established in the chain of email communications between the claimant and Mr Moore immediately prior to that date.

[46]Although they are not directly relevant to our consideration there are two matters we need to refer to as background. That is that the claimant was clearly finding it very difficult during the period of isolation at home during the pandemic and secondly that she wished to transfer to Northern Ireland to care for her sick mother. She had applied for a compassionate transfer and when the initial post of which she had applied was she was told filled she was again clearly aggravated and believed that was motivated by ill will towards and somebody blocking her transfer.

Conclusions

[47]Throughout all those matters Mr Moore was her line manager though he had not met her. He was required to manage her remote absence from work and also to assist as the conduit for communications in approving her compassionate transfer and passing information back as to the progress of that. That the claimant was upset, particularly at the refusal of her transfer at that stage, is evident in the tone of her emails to Mr Moore. She has some justification for expressing herself in a way that she would perhaps not do in a purely professional capacity because Mr Moore had expressly stated that he was as far as possible be there to be a listening ear for her. But nonetheless her tone expresses extreme upset, anger and emotion.

[48]In the course of that ongoing dispute the claimant, despite it appears having been advised not to do so on 18 June by Mr Moore, on 19 June wrote directly to the Brigadier in Northern Ireland. Communications then passed between Northern Ireland and England to inform the claimant that that direct approach was considered inappropriate and it was Mr Moore who was therefore designated to pass that information on to her. The claimant interpreted that as a reprimand and again clearly took offence.

[49]So there was throughout this period already some concern as to the manner in which the claimant was communicating. The particular chain of events really begins on 1 July when Mr Moore seeks to make his regular contact with her but the claimant does not reply. So he follows up a week later on 8 July stating he would like to have a telephone conversation with her and the claimant’s response to that is an email where again her tone is expressing her emotions saying “I’m pretty damn angry and pissed off”. She follows it again within another email on 9 July again writing in extreme terms how she considers that her life and her mother’s life had been wrecked by the MOD in Northern Ireland accusing them of unfairness saying “I’m not going to shut up” .On 10 July in response to that Mr Moore writes stating he understands that the situation is difficult for her but stresses that this behaviour, the tone used in the email and other previous messages does not uphold or align with the Civil Service Standards of Conduct and Behaviour. The claimant’s reply to that is again extremely emotively phrased criticising Mr Moore “if you wish to have a good working relationship with me your not going about it in the right way. Basically this is bullying and harassment which seems to be typically management style of DST”. In response to that on 16 July Mr Moore states “I’m disappointed that you have not taken my advice or request in relation to the tone of your correspondence”. And at that point is when he requires the claimant to attend a merely informal misconduct meeting specifically to address the tone of her communication. The claimant expresses the view that this is victimisation because she has made a complaint and an attempt on his part to prevent her applying to Northern Ireland and that is where she states “I will not be attending any misconduct meeting”. She also states then she is forwarding that email to the permanent under secretary, and she follows that up with a further email on the 18th where she doesn’t resile from that position. She says “further to my email I will not be attending any meeting at all until I have spoken to the equality advisor”. But she does not within that email indicate that she will be prepared to attend when she has met with that person nor that she will consider any alternative form of a meeting. So having expressly stated that she will not be attending the meeting, it is then converted to a formal misconduct hearing. It was also at that stage the claimant was indicating that she would not communicate with Mr Moore regarding her continued absence from work.

[50]In preparation for that formal meeting, Mr Moore then sent a copy of the relevant emails where he considered that the tone was inappropriate. There was also included, in addition to his own correspondence, some communication between the claimant and a civilian employee Mr Knowles regarding access to training that had been copied into Mr Moore and where the tone to Mr Knowles was equally unprofessional. The claimant is referring to the fact that she is “pretty damned pissed off” and she says to Mr Knowles “you’re pretty damn quick to harass me in relation to training where you have given no support in relation to my own personal concerns”.

[51]In relation to training, although it is not directly relevant, we note that the claimant was still being fully paid whilst absent from the barracks. So, even if she could not access an MOD laptop to do any substantive work if possible there would still be the requirement she complete her mandatory training. Mr Knowles was a senior civil servant overviewing that process. It is perfectly proper that he should therefore have been provided with the claimant’s personal email - which was the only means of contacting her whilst she was away from the barracks - to remind her of her obligations. The email states clearly that the record shows she is not up to date with training and that she should make steps as appropriate to do that. He is not necessarily stating that if she is unable for whatever reason to actually conduct that training because of the physical constraints at home, that that will be held against her. And certainly the claimant was never disciplined for failure to keep up to date with her training. Mr Knowles said correctly, when later asked about this in the course of internal investigations, that he was entitled to do that so long as the claimant was not actually on leave and on holiday, special paid leave did not absolve her from a requirement where possible to keep up to date with her training. The relevant issue is not, however, whether she could or should have been contacted to pursue her carrying out of the training ,but how she inappropriately expressed herself to Mr Knowles.

[52]The claimant responded, in our view, disproportionately to these accusations. The misconduct proceedings were in fact in abeyance. The claimant had indicated she would attend the formal meeting but she then asked for it to put back and it was ultimately postponed and not resurrected until later, but that postponement was at her request.

[53]The claimant then raised a complaint against Mr Moore. Brigadier Caldecott assigned that to Colonel Johnson to deal with although Ms Johnson was of course Mr Moore’s commanding officer as well as superior in the line management chain to the claimant. Having raised those complaints Mr Moore then raised his own complaint against the claimant and it was determined that both were to be heard together, and that is clearly a sensible conclusion and so Ms Johnson was assigned to deal with that.

[54]The first meeting that Ms Johnson had with the claimant in relation to her complaint against Mr Moore was on 4 November 2020. Following a subsequent receipt of Mr Moore’s own complaint on the 5th or 6th, there was a further interview with her as the respondent to that complaint on 26 November 2020. The procedure then was that an independent investigator was appointed but that did not then happen until January 2021 and that was Mr English. Mr English carried out interviews and compiled the information pack and the final version of that was provided by 7 April 2021. The investigating officer of course is not making any decision. The deciding officer was Ms Johnson, and having received the information pack she then took that decision on the papers. There was no further meeting with the claimant nor indeed with Mr Moore and she provided her outcome letter on 30 May. She then determined that the claimant’s complaint was not upheld. And we have to observe that on our reading of the chain of communications between the claimant and Mr Moore that is a perfectly proper decision for her to have taken, and indeed a perfectly proper decision to have been upheld subsequently on appeal. We can see no valid criticism of Mr Moore’s conduct and certainly the decision to invite the claimant to an informal misconduct meeting to discuss the inappropriate tone of her emails -which is apparent on the face of her communications - is a perfectly proper decision. And given her intransigence and refusal to attend such a meeting the decision then to convert to a formal misconduct is equally unimpeachable in our view.

[55]That is an incidental matter because primarily we are concerned with the outcome of Mr Moore’s own complaint against the claimant. And in that respect the difficulty for the respondents is that Ms Johnson made a broad finding that all the complaints were upheld, but it is a lengthy complaint by Mr Moore and it is unclear what within that complaint is actually alleged to be bullying. Although the complaints procedure relates to “bullying and harassment”, harassment is not relevant here because harassment within the procedures carried the same legal definition as under the Equality Act and it is not related to any protected characteristic of Mr Moore. Bullying of course is not legally defined nor clearly defined within the policy. Although some examples are given, they are very general.

[56]It is unclear specifically what Ms Johnson found. Within the very brief outcome letter in this regard, she refers specifically to two parts of the correspondence. The email of 18 July and particularly the final paragraph where the claimant asserts “I am forwarding your email (that is the email inviting her to the informal misconduct meeting) to the assistant permanent under secretary as I raise my concerns about recent events regarding my compassionate transfer with the PUS Mr Stephen Lovegrove and it is being dealt with by his office. This is pure victimisation in an attempt to put me in the wrong after I made a complaint when it is yourself, your colleagues and the DST that are in the wrong.” And also the email of 5 August, where the claimant says “I’m asking you politely please do not contact me again either by telephone or email. I will send an email once a week to DBS to inform them I’m still alive but if you persist in harassing me by contacting me against my will and threatening me with further action if I refuse to allow you to contact me I will go to the police and make a complaint of harassment.”

[57]Before coming to that decision on the papers Ms Johnson had not specifically informed the claimant of why the content of her emails would be deemed to meet the threshold of bullying or to allow her to comment upon that. The next stage as the claimant was advised that misconduct action may be taken. In actual fact Mr McIlroy was not appointed as the decision maker on any misconduct allegation until 25 October. That is some five months later. In the meantime the claimant had raised an appeal against the dismissal of her complaint against Mr Moore and that was eventually heard on 1 September. She had no rights to appeal as the respondent to his complaint, and the policy somewhat unclearly indicates that an appeal may be made under the misconduct procedure; whether that is an appeal against the decision to refer it as misconduct or only an appeal after such a hearing is held is imprecisely identified.

[58]As well as dealing with the allegation of bullying as purportedly identified by the outcome letter of Ms Johnson, Mr McIlroy was also not only dealing with the still pending allegations of minor misconduct in relation to the tone of the earlier emails, but also two new matters that arose from the communications of 18 July and 5 August , an unreasonable failure to abide with an instruction to attend the informal meeting and also a failure to comply with the reporting requirements of keeping in touch with her line manager.

[59]Again the matter did not proceed promptly. Mr McIlroy had hoped to hold the meeting with the claimant on 4 November 2021 but the information was not available to him from personnel to allow that to go ahead and the meeting was not then reconvened until after a letter of 3 December 2021, which was an invitation to a disciplinary meeting. At this point it was identified, and this appears for the very first time, that because it was an allegation of bullying and harassment it may result in dismissal. That meeting was held on 14 December.

[60]Mr McElroy was very clear as to the prescription on his remit. That is that he was not reinvestigating the allegations that were said to amount to bullying but only concerned with deciding on the appropriate sanction. He did state that “you have no right to appeal the decision of this case” which we take to mean that it was correct under the policy that the claimant had no right to appeal Ms Johnson’s finding on the complaint by Mr Moore. And he also stated that a proven bullying and harassment case is classified as gross misconduct.

[61]So at this stage the claimant was not provided any opportunity to address the actual allegations against her and nor did Mr McElroy specifically identify what it was in the communications in question that was said to amount to bullying and why. What he did do, because this was a fresh matter, was to review the totality of other correspondence and identify that the tone of the claimant’s communications was inappropriate, that she had unreasonably failed to comply with the instruction to attend the informal misconduct meeting and also that she had failed to comply with the requirements to stay in touch with her line manager during the period of special paid leave. And we are quite satisfied that those conclusions on the evidence we have seen are perfectly justified. While they were not of themselves sufficient to have warranted termination because they had always been classified as minor misconduct but they are part of the overall finding.

[62]We must of course have regard to whether or not Mr McIlroy genuinely believed the claimant was committing misconduct. He did to the extent that he was working on the assumption that an already proven finding in the earlier proceedings by Ms Johnson did amount to misconduct,. We must also consider whether or not all satisfactory investigation had taken place. Although there had been a full investigation by Mr English there was no other examination within the context either of a bullying and harassment final hearing nor the disciplinary final hearing. But more particularly as to whether in all the circumstances the matter was fair and that must have regard to procedural fairness as well and to the delay. The ACAS Code of Practice prescribes that the notification of the disciplinary hearing should contain sufficient information about the alleged misconduct and its possible consequences to enable the employee to prepare to answer the case, and as we have said it was never identified significantly what the charge of bullying arose from the context of these communications. A meeting should be held without unreasonable delay and the employee should be allowed to set out their case after the employer had gone through the evidence that had been gathered and explained to the complaint, that the employee should be given a reasonable opportunity to ask questions to present their evidence and call relevant evidence.

[63]Because this was not an investigation into the facts of the alleged misconduct but only sanction, that opportunity was never afforded to the claimant and also we are now considering a dismissal for the events that happened 18 months earlier and the delay is in our view inexcusable and of course delay may amount to procedural unfairness as has been long established in the case of RSPCA v Cruden

[1986] ICR 205

[64]Also on the question as to whether the sanction was appropriate, Mr McElroy does not seem to fully appreciate the fact that the claimant had actually been working for a year prior to his decision. Although still at home she had had access to a Ministry of Defence laptop from January 2021. Her line management had temporarily transferred to Squadron Leader Clayton and she was now working - and as far as we can see working entirely satisfactorily. Yet significantly even within his witness statement to this Tribunal before he corrected at the last minute, Mr McElroy appears to have been under the misconception that he was entitled to consider whether it was appropriate to allow the claimant to return to work. And then when questioned about that matter he concluded that the fact that she had been successfully working for 12 months was irrelevant to his consideration. We considered that that clearly was a relevant factor and should have been taken into account.

[65]For those reasons we are satisfied that the decision to dismiss because of the failure to identify the precise charge of bullying that arose from the claimant’s communications with Mr Moore, the failure to provide her then the opportunity at any stage to actually address that concern, the delay and the failure to take into account all relevant considerations that were apparent on the face of the history mean that she has been unfairly dismissed. Wrongful dismissal

[66]It was a summary dismissal allegedly for gross misconduct. It is for the respondents to show that it does in fact meet the requisite threshold of conduct that is so serious it would justify immediate termination. Given that they rely, on the face of Ms Johnson’s evidence and outcome letter only on those two reported paragraphs in the emails of 18 July and 5 August, we are not satisfied that the respondents have done that. The context of this is of course that the claimant was being invited quite properly in our view to face misconduct allegations which she may well possibly have been able to answer satisfactorily given the surrounding circumstances. But she was required to attend those meetings and her responses of 18 July and 5 August are within the context of defending her position. It may well be that had the matter been dealt with in good time it would nevertheless have been held to be sufficient misconduct to justify termination. It was not necessary that it should be gross misconduct to warrant dismissal, but in those circumstances it would necessarily have been termination upon notice. Although the claimant is a Crown servant and therefore not entitled to notice, the clear indications are that a reasonable period of notice would have been the five weeks which is ordinarily afforded to a departing Civil servant. In some of the documentation this period of notice is indeed regarded as an “entitlement” to those who are dismissed otherwise than for actual gross misconduct. Adjourned remedy consideraions

[67]So the claimant will be entitled to be paid five weeks in lieu of notice. She had, however, already taken all of her pro-rata leave entitlement for the current holiday year up to the actual date of termination, and there is no holiday pay outstanding. She will also be entitled to a maximum basic award for unfair dismissal based not on her alleged 16 years’ service but only on two years’ service. That is because quite clearly there was a break in continuity. So that would entitle her on the face of it to potentially three weeks’ pay, two times one and a half weeks’ pay given her age, but we say at this stage that that award will necessarily be reduced because of her contributory conduct. She is also entitled as appropriate to compensation for unfair dismissal but that is subject to a statutory maximum of 52 weeks’ pay. That will include any award for a loss of her statutory rights which is ordinarily only a nominal sum of some £450. Any loss of pension rights and any potential uplift for an unreasonable failure to comply with the ACAS Code of Practice is still subject to the statutory cap. And of course that compensatory award will also be liable to be reduced because of the contributory conduct of the claimant leading to her dismissal and also potentially reduced further under the principles in Polkey as to whether a fair procedure will result in a chance that she would have been dismissed fairly in any event.

[68]Those are our findings. All claims apart from the unfair dismissal complaint are dismissed and remedy for that will have to be determined.