Tribunal Judge McGrade acting as an Employment JudgeIn person for claimantMr J Braier (instructed by counsel.) for respondentDate 31 January 2025
JUDGMENT
[1]The Claimant’s claim that the Respondent failed to make a reasonable adjustment to provide her with a quiet location within its premises succeeds in accordance with sections 20, 21, 22 and 39 (5) of the Equality Act 2010 (the EQA) or alternatively that it failed to move her to a quiet office temporarily until a permanent suitable alternative role was identified.[2]All other claims brought by the Claimant fail and are dismissed.[3]The Claimant is awarded the sum of £1240.49 for the reduction in salary she sustained between 1 September 2022 and 30 November 2022.[4]In accordance with the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 (s.1996/2803) the Claimant is awarded interest under the EQA which is calculated based on the prevailing rate of interest under s.17 of the Judgments Act 1838 which for the applicable period is 8%.[5]Under Regulation 6 (1) (b) on an award of compensation interest shall be paid for the period beginning on the mid-point date and ending on the day of calculation.[6]Pursuant to Regulation 4(1) and 4(2) the mid-point date is halfway between the commencement date of the discriminatory act of 15 October 2022 (the Tribunal having determined that the starting point of the discriminatory act is most appropriately halfway through the period of 3 months during which the Claimant received a reduced salary) and the date of the judgment of 30 January 2025. This is therefore a period of 403.5 days.[7]Based on the above the total interest awarded to the Claimant on the award in respect of reduced salary is £109.71 and therefore a total of £1350.20 which sum shall be subject to appropriate deductions for tax and national insurance contributions.[8]The Tribunal considers that an injury to feelings award of £5000 is appropriate in accordance with the Vento criteria.[9]Therefore based on an injury to feelings award of £5,000 interest, calculated at a rate of 8%, with the date of the prohibited act of 27 January 2020, and calculation date of 30 January 2025, giving a total of 1099 days, is £1204.38 and therefore a total of £6204.38. The award for injury to feelings, given that it is unrelated to the termination of employment, is tax free.
REASONS
[10]Oral reasons were given to the parties. The Claimant requested written reasons which are set out below.
The Hearing
[11]The hearing took place over seven days. It was agreed on the opening day that it would take place entirely by CVP given the Claimant’s preference on account of her health issues. There was a bundle comprising of 1385 pages. There were a few additional documents which the Respondent wanted to add to the bundle and which the Claimant opposed. We agreed that these documents could be included.[12]The Tribunal made accommodations to reflect the Claimant’s tiredness and health issues and in particular we did not sit on the Friday at the claimant’s request. The hearing then proceeded without further delay from the Monday. The Tribunal was satisfied that the Claimant had adequate breaks to be able to properly put forward her case.[13]The Claimant provided a 133 page witness statement and a short statement from a Mr Hugh Rowlands, Map Processing Coordinator and Cataloguer and the Claimant’s current Line Manager, (Mr Rowlands) who was not called to give evidence given that the Respondent did not intend to challenge its contents, and his statement therefore stood on its own terms. Carolyn Rooney, Acting Facilities Manager (Ms Rooney), Ann Clarke, Head of Estates, Strategy and Performance (Ms Clarke) and Roxanne Thompson, HR Advisor (Ms Thompson) gave evidence on the Respondent’s behalf. The Claimant’s disabilities[14]The Respondent accepts that it had knowledge of the Claimant’s PTSD and related mental health issues from 27 January 2022 and that it had knowledge of her Fibromyalgia from January 2022. However, whilst it acknowledges that the Claimant suffered a substantial disadvantage in respect of her PTSD it does not make such an acknowledgment in relation to Fibromyalgia.
The issues
[15]The issues to be determined are relatively narrow and they are set out in an agree list of issues I will not set that out now but will return to that in the conclusions. Findings of fact
Background
[16]The Claimant commenced her engagement with the Respondent initially as an agency worker on 2 July 2012. She became a Help Desk operator in June 2015. She says that the Help Desk moved to a new and noisy office at some point in 2016. The role of a Help Desk operator[17]The Help Desk operator job profile dated February 2016 states that the purpose of the job is to deal with internal customer and tenant enquiries and to provide day to day assistance to those requiring Estate and Facilities services including reporting faults, requests for change, porterage services, meeting room bookings and refreshments and providing administrative support to Estates and Facilities as directed by management. Key areas of responsibility include providing a first point of contact for internal customers and tenants requiring services by telephone, email or calling in person, proactively tracking and reporting progress and completion of work orders to customers, providing timely feedback to customers on faults and breakdowns and timely support for meeting organisers. Main tasks include service requests, recording instructions, raising work orders against relevant service partners on computer aided facilities management systems, in the event of a service failure initiating escalation and recovery processes and raising service calls and call out for equipment maintenance contractors to repair.[18]Ms Rooney is responsible for managing of the Estates Help Desk department. The Estates office is located in the lower ground floor of the Library’s St Pancras site which has 36 desks. Operatives from service contractors, Atlas responsible for cleaning, and CBRE responsible for maintenance, also sit in this office.[19]The Tribunal was provided with a floor plan which shows the Claimant’s desk. The Respondent says that efforts were made to move her desk to minimise noise disturbance. The Claimant says that a move of one meter made virtually no difference to the extraneous noise. Service level agreements[20]Ms Rooney referred to various service level agreement requirements particularly those categorised as P1 and which require a response within 15 minutes. She says some of these requests are made in person from the Library’s approximate 1000 staff. The Claimant says that in reality P1 situations rarely arise and cannot recall any occasions in her seven years with the Respondent, the only exception being a flood at the Boston Spa location. Number of in-person visitors to the Help Desk[21]There was a dispute regarding the number of in person visitors to the Help Desk. A document as referred to in paragraph 48.2.2 in Ms Rooney’s statement showed in person callers on 3 and 4 September 2024 as being between 22 and[28]The Claimant disputes these figures and they post-date her time on the Help Desk. Further, there had been a cyber-attack which arguably contributed to a greater number of in person callers than previously. Relevant documents 22. The Tribunal was referred to various documents. There is no need to set out the details of the grievance and redeployment policy. The Reasonable Adjustments Policy dated May 2021 23. Relevant paragraphs include:• 10.7: If a disabled candidate is successful and is made a job offer, the recruiting manager should discuss with the successful applicant as soon as possible what adjustments are required.• 14.4: When, all possible reasonable adjustments to enable the employee to retain their original role have been explored without success then the final adjustment is to look at transferring the disabled employee to a suitable alternative vacancy.• 14.5: A suitable alternative vacancy may be a position in the organisation as a whole to which the employee can be placed without a reasonable adjustment. There is, however, no obligation to create a new job for an employee who needs to be redeployed.• 14.7: Disabled employees will not be required to participate in competitive interviews where they meet the essential criteria ideally at a grade at their substantive level. If no suitable alternative vacancy exists at the substantive level there may be a suitable alternative vacancy available at one grade lower or at a higher grade which the individual can be considered for.• 14.8: A suitable alternative vacancy at a higher grade would have to be appropriate for the individual and the Library.• 14.12: Where all reasonable adjustments have been considered and it has not been possible to retain the disabled employee in their current role the disabled employee will be placed in redeployment for a period of up to six weeks when they should actively look at roles with the support of HR. 24. The Respondent says that the systems administrator role which the Claimant applied for was at a higher grade and required a competitive process and I will return to that. The relevant chronology 25. During 2017 the Claimant increasingly raised concerns regarding the noise levels. In an email to Ms Rooney and Tom Power, Facilities and Property Manager (Mr Power), of 2 September 2017, she said the noise around my desk is very distracting and irritating sometimes I cannot even hear the callers. The Claimant’s performance review on 4 May 2018 26. During the Claimant’s performance review on 4 May 2018 with Ms Rooney she said the office is very loud, and I mentioned it to Mr Power who advised there are various ways of reducing the noise. The Claimant said that as the noise is extremely distracting and distressing that she would benefit from noise absorbers at ceiling or floor level. Ms Rooney stated: “I agree with the Claimant the noise levels in our office at times is unbearable. We are currently investigating ways to reduce noise but trialling acoustic ceiling tiles and hope to have this done in the next few months”. Ms Rooney said in evidence that it was very loud at the time as engineers on the CRBE desks were adding to the noise. Email from the Claimant to Ms Rooney on 26 June 2018 27. The Claimant said that she wanted to express how annoying the office noise is. She said staff seem to make as much noise as they can by meeting for a chat with colleagues and taking no notice of those who are trying to work. She said: “All of them are constantly talking, raising their voices and laughing, I would describe it as party noise, their conversations are hardly ever work related”. The Claimant said that she would like to explore an option of lending a laptop from IT and working from somewhere more suitable e.g. meeting rooms or one of the pods. Email from Ms Rooney to Mr Power of 27 June 2018 28. Ms Rooney referred to everyone being a bit peed off that the Claimant is complaining continually. She said that this was starting to cause animosity and that she was really unhappy about this as she was even scared to have a discussion and everyone is on tenterhooks. She said that she wanted to come to work and enjoy the conversations and banter with the rest of the staff and this is not a reading room, and we cannot have silence. She said that she would like to propose that we offer to put the Claimant and Richard Carpenter, if he states it is unbearable, down in basement half and that she and Stephen White, Help Desk operator should remain in their current location. She went on to say: “This may be a nice sharp, short, shock for her as I cannot imagine that she would be happy with this but at least we have an offer. I have stressed on numerous occasions that they should use headsets but this is refused”.[29]Ms Rooney was questioned regarding her wording and agreed that it was not a good choice of words. The Claimant’s September 2019 performance review[30]The Claimant recorded that she had asked to be moved to a quieter office due to her long term health problems as she was unable to perform her role in the existing noisy office environment with no (very limited) day light. Email from Claimant to Ms Rooney on 4 October 2019[31]The Claimant said that she suffered extreme stress caused largely by the office noise. She said: “I appreciate your effort to reduce the noise by moving us further down the office and providing headphones, but I do not believe it has worked”. Email from the Claimant to Ms Rooney on 6 October 2019[32]The Claimant said: “I have struggled with the noise and commotion in the office for years and I cannot handle it any longer. I have tried to cope with the distress it has been causing but at this point I cannot handle it anymore”. The Claimant’s appointment with the Respondent’s Occupational Health Advisor on 18 October 2019[33]The OH report dated 18 October 2019 included a recommendation that the Respondent may wish to help in her symptom relief particularly since a person with symptoms of depression and anxiety is likely to find background noise less easy to tolerate and possibly distracting by allowing her to work in a quieter area, for example, a different office. Email from the Claimant to Anne-Marie Foster on 22 October 2019[34]The Claimant said that Ms Rooney insists that her role requires her to sit in the Estates Office with the Estates colleagues and contractors. She said that she strongly disagreed and was convinced that she could carry out all of the tasks from a different office as 90% of her role is computer based where no face to face interaction is required or necessary with the remaining 10% consisting of answering phone call, arranging to meet staff in other locations, checking services around the building and only very occasional visits from staff that could also be arranged elsewhere.[35]In her witness statement the Claimant says at paragraph 21.3 that she is convinced that 90% of her role is computer based where no face to face interaction is required or necessary. She says at 22.4 that by October/November 2019 she was starting to overhear negative comments from colleagues who seemed to find her noise complaints amusing and that some of them were even more noisy than before. Email from Ms Rooney to Mr Power on 6 November 2019[36]She said the Claimant is still very anxious about her return to work due to the noise. In the meantime I advised her that I would ask you to speak to CBRE and ask that all visitors and others sit downstairs or in another place, not at the spare desks to reduce noise. She also said that she had asked people not to congregate around the vicinity of the Claimant’s desk but to have conversations in the corridor outside. Email from the Claimant to Bryony Revell of 18 November 2019[37]The claimant said that she would like to discuss her options and challenge her manager’s decision as she was convinced she could do her job from a different location. Ms Revell sent an email to Ms Rooney on 21 November which included her saying that the Claimant does not feel that the current reasonable adjustments are working and suggested due to ongoing noise concerns that working away from her current desk for half a day each day would help. Meeting with the Claimant following a period of absence on 8 November 2021[38]The Claimant said that she was bombarded with all types of issues and cannot relax and that she feels more stress now that she is working on site three days a week as she prefers to work from home because she can avoid public transport. The Library was closed for over a year during the pandemic so in effect the Claimant, along with other staff, had been working remotely from March 2020 to relatively late in 2021 when it reopened. Email from Naomi Prudames, HR Advisor to Mr Power of 9 December 2019[39]Ms Prudames said it is hard to defend why it is not possible to trial this adjustment especially given the alternative is currently for the Claimant to be absent completely. Email from Ms Rooney to Mr Power of 10 December 2019[40]She set out various options, one was to provide a designated desk for the Claimant to work from a few hours a day which is not as busy as the current office but would allow her to keep up to date. She proposed two hours a day, one hour to do signage and other duties and one hour for a lunch break which would make four hours per day away from her normal desk. The Claimant’s wellness action readjustment dated 14 December[41]The claimant referred to the sensory overload associated with fibromyalgia meaning that she finds noise absolutely overwhelming and extremely disturbing. Email from Kelly Scott, Technical and Contractor Manager to Ms Rooney on 24 February 2022[42]This includes her saying the Claimant had been rude and abrupt to her and her team on many occasions and given her dirty looks about her speaking too loud when she was in the Estate Office. The Claimant was not advised about this email as she was not at work and did not return until late May 2022. The trial periods[43]Mr Braier says that there were three separate trial periods and all of them were unsuccessful. He breaks it down as follows:• January 2020 when the Claimant had a couple of hours away from the Estate Office plus some additional time when Mr Wright was present.• Post Covid through to January 2022 when the Claimant was allowed to work on the 4th floor and return to the Estate Office when it was otherwise unmanned. He says that was unsuccessful lasting for less than two weeks.• On 26 May 2022 when he says the Claimant became overwhelmed very quickly and then was off sick from 4 July not returning until the Project Assistant role started on 3 January 2023.[44]The Claimant says that the trial periods were very stressful, that she received conflicting information and had to work all day in a noisy office with her colleagues. The Claimant says that during the trial period she perceived that she was constantly being tracked and supervised.[45]She says that when she was on site from 17 January 2022 there was a lot of noise and sometimes had to return to the Help Desk five or six times a day. She says that the office was as loud as ever and she could not cope. Extent of personal interaction required in the claimant’s role on the Help Desk The Respondent’s position, as set out in the evidence primarily of Ms Rooney but also Ms Clarke, is that there needs to be an in person presence on the Help Desk for the following reasons:• to deal with in person inquiries;• day to day assistance;• first point of contact for internal customers and tenants;• to enable collaboration and communication;• to expedite decision making and problem resolving processes;• that not all staff members have work phones or laptops with the internal telephone system being non-operational following the cyber-attack in October 2023;• ease of managing the team if they are all situated in one location;• concern that the Claimant would become isolated; and• the benefit of helpful intelligence from in person conversations.[46]The claimant disputes the level of personal interaction required. She says that notwithstanding the Respondent’s position that it was not possible for her to continue working on the 4th floor from 26 May 2022 that there were lots of vacant desks. She refers to the survey of desk occupancy on floor 4 as set out at page 757 in the bundle. The claimant’s absences[47]The claimant disputes that she continued to have significant absences from February 2020 to December 2021. However that included the working from home period during the Library closure so it is likely that there would have been limited work for the Help Desk employees. Other adjustments the claimant says should have been made[48]The Claimant says that there were various other adjustments that could have been considered (paragraph 96.5 in her witness statement) to include flexible hours, a quiet work space or being able to work from home, temporarily restructuring her job or moving her to an alternative role. The Claimant attended a further Occupational Health review on 5 May 2022[49]The OH report of 5 May 2022 referred to her experiencing symptoms associated with fibromyalgia but her symptoms had greatly improved. The Respondent says that no conditions were given for a phased return to work. Email from Ms Rooney to the Claimant on 26 May 2022[50]She includes, we did then have a brief discussion about where you would sit when in the office and I did advise that we would need your presence in the Estate Office as you would need to be involved with the Estates team, our contractors and staff needing information but we would discuss this in more detail towards the end of the phased return. Email from Ms Rooney to Ms Kelly on 27 May[51]She set out the adjustments which had been made to assist the Claimant. The list of adjustments included moving desks, contractor staff being told not to have noisy conversations in the Claimant’s vicinity, noise cancelling earphones, acoustic desk dividers costing approximately £5,000 and a stand to sit desk costing approximately £4,000. Ms Rooney said that the desk on the 4th floor was only supposed to be for when she needed quiet time. She said that she thought they may have reached the point where she did not think any more adjustments could be made and the job be done effectively. She said that the Estate Office was not particular noisy and primarily comprised people having work and sometimes personal conversations. Email from the Claimant to Hannah Springle on 30 May 2022[52]She said that she would not be able to return to full time work on the Estate Office on the lower ground floor and asked what her options would be due to her health problems as she cannot work in a noisy open plan office with no daylight. She said that the office is particularly noisy and busy as Estates share it with security, health and safety and CBRE contractors. Email from the claimant to Ms Gallagher of 21 June 2022[53]She said that she strongly believed that she was no longer wanted in this department team because of health problems and disagreed that reasonable adjustments could not be implemented to allow her to work from home at least every other day.[54]Mr Power agreed for her to work on the 4th floor to enable her to continue working in her current role. Email from Ms Gallagher to the Claimant on 21 June 2022[55]She expressed her concerns about the claimant’s wellbeing and said that since there first conversation her mindset seems to be shifting. Originally you seemed to understand the limitations and pressures of the work place, you expressed you were feeling supported by your manager and seemed optimistic about looking for alternative roles that better suited your current health requirements. Your email now suggests that management decisions that are not the ones you hoped for are perceived as being borne of malicious intent towards you rather than any other possible reason. Email from Ms Rooney to the Claimant on 24 June 2022[56]She advised the claimant that Thursdays could be a home working day. She referred to having discussed the Systems Administrators role with the claimant and encouraged her to apply and if successful they could consider what reasonable adjustments could be put in place as the role is not a Help Desk role which needs to be based at desk from 8:30-5pm. Email from Ms Gallagher to the claimant on 28 June 2022[57]She said whilst there had been, and continued to be, adjustments made the current role and the claimant’s current health requirements just do not seem to be a good match. To reiterate we do not need the Occupational Health redeployment recommendation to start exploring which roles may be more suited. The Claimant met with Ms Rooney on 24 June 2022[58]It was agreed that she would attend work at her desk in the Estates Office in the morning on Tuesday, work form home on Thursdays and take time away from her desk when she was feeling overwhelmed.[59]The Claimant was absent from work on account of anxiety and depression between 4 July 2022 and 30 November 2022. The Systems Administrators role[60]The job description provided included minimum requirements of demonstrable experience of CAFM and other internet based systems, broad knowledge and experience of facilities management and services and highly effective analytical skills. Email from Ian Goadsby to Ms Rooney on 1 July 2022[61]He said if the Claimant is falling short of her objective then she is letting herself, her Help Desk colleagues and you as her manager down, there is no easy out for the Claimant, I do not believe she is capable enough for this systems admin job and I do not see many other options on the horizon. Email from the Claimant to Ms Gallagher on 2 July 2022[62]She said the first full time back to work week had not gone well. She had a panic attack and had been struggling with the noise. She said that she had submitted an application for the Systems Administrators role. She said that she found the whole process of asking for reasonable adjustments in order to keep her job extremely stressful. She referred to various adjustments which had not been considered to include a quite work space or being able to work from home. The Claimant attended a further Occupational Health review on 7 July[63]The OH report concluded that it was hoped that she would be in a position to consider starting her return to work again in four to six weeks’ time initially working from home and increasing the proportion of time in the office according to how she is getting on. The appointment of the Mr Angeli to the Systems Administrators role[64]The Claimant and George Angeli (Mr Angeli) were interviewed for the Systems Administrator role by a panel comprising Ms Rooney, Ms Clarke and Sasha Welch. The Respondent says that Mr Angeli performed substantially better than the Claimant with his scores being higher for each of the panel members. The Clamant had objected to Ms Welsh’s inclusion in the panel but given that there was a panel of three and the scores were largely consistent the Tribunal accepts the evidence that Mr Angeli scored substantially better with an aggregate score of 308 as opposed to the Claimant’ 177. The Respondent says that Mr Angeli had demonstrated experience of implementing systems and also scored better on team work.[65]The Claimant was advised that her application was unsuccessful in an email from Ms Rooney of 15 July 2022 who then provided further feed back that she had not developed a system and that whilst she had provided input to systems that is different from developing one and that she had not demonstrated ability to perform team work.[66]Ms Clarke (paragraph 14 in her witness statement) refers to the reasonable adjustments policy and says that it is only where an employee meets the essential criteria of the role that a competitive interview is not required. She says the Systems Administrators role was not suitable for the Claimant as it required full time work from the Estate Office and further that it would have involved engagement with Ms Rooney as her line manager where the relationship between them had broken down. Email from the Claimant to Ms Gallagher on 5 August 2022[67]She says that she had advised on numerous occasions that she would never be well enough to do her current role without permanent adjustments. If the Estates department is unwilling to accommodate the recommended adjustments either by allowing her to work from a quiet area, work from home or moving her to a more suitable role that would allow her to do so why are similar options not being considered in other departments. The claimant’s grievance of 9 August 2022[68]In an email to Ms Gallagher the Claimant raised a grievance. Her complaint related to the way her request for reasonable adjustments had been handled and rejected. She set out her various requests to include allowing her to work in a quieter office or from home. Grievance hearing before Ms Clarke on 23 September 2022[69]The Claimant agrees that it was fairly conducted albeit she complained about delays in the process. The grievance outcome letter was sent to the Claimant on 30 September 2022 and rejected her grievance. There was a grievance investigation report which set out in more detail the situation and summarised what had taken place. There is no need to set out details from that as the matters referred to have already been covered.[70]The Claimant appealed the grievance outcome in an email to Ms Clarke of 3 October 2022. She acknowledged that she would partly agree that the adjustments she was requesting in her current role may not be practical in the long term. She believed that the adjustments should have been implemented temporarily to allow her to continue working and to prevent the loss of income.[71]A letter was sent to the claimant referring to the year redeployment of procedure dated 6 October 2022[72]The Claimant’s grievance appeal meeting took place before Patrick Dixon, Head of Estates and Facilities on 17 October 2022 and the outcome was sent to her on 3 November 2022 rejecting her appeal. Mr Dixon said that the adjustment the claimant had requested was not reasonable for her current role. Consideration of alternative roles for the claimant[73]Ms Clarke’s witness statement refers to various roles which the Claimant was considered for to include Help Desk Technology Officer at Grade C, Finance Administrator at Grade D, Commercial Sales Assistant and Acquisitions South Team member-Slavonic and East European Languages, Commercial Sales Assistant and Exhibitions Coordinator.[74]The Claimant made enquiries as to what her position would be if she took an alternative role to include the PA Maps role in terms of her status as a permanent employee or a fixed term contractor. Ms Thompson said in an email to the claimant of 9 November 2022 that although the role is limited for 12 months you will still be considered a permanent employee as you have been with the Library for over four years, however we cannot guarantee the role past 12 months. The claimant is successfully appointed to the role of Project Assistant Indian Office Maps[75]The claimant successfully applied for the role of Project Assistant Indian Office Maps Grade D (the so called PA role). The Respondent disputes that that was a tardy process. It accepts that the role was available from 11 October 2022. The Claimant started in the role on 3 January 2023. She did not apply for the role until 11 November 2022, despite knowing about the vacancy from 11 October 2022, and chose to use up her untaken leave until 3 January 2023 after she had been offered the role on 28 November 2022.[76]The Claimant remains in the role and according to the witness statement of Mr Rolands has performed to an exemplary standard with him saying that she is committed to work, has developed excellent working relationships and has a positive attitude to her work. The Law Reasonable adjustments on account of disability The existence of a PCP
The Law
[77]It is accepted by the Respondent that the PCP is being required to work in a noisy office, the Estates Office.[78]We reminded ourselves of the relevant provisions regarding reasonable adjustments to include the need for the existence of a provision, criterion or practice (PCP). We took account of the duty under s.39(5) of the EQA to make reasonable adjustments and referred to sections 20, 21 and 22 and Schedule 8 of the EQA. In particular we took account of s.22 (2) which provides that where a PCP of the employer puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled that the employer is under a duty to take such steps as it is reasonable to have to avoid the disadvantage.[79]We took account of guidance in cases such as Environmental Agency v Rowan [2008] IRLR 20 that a tribunal must identify the PCP, the identity of non-disabled comparators (where appropriate) and the nature and extent of the substantial disadvantage suffered by the claimant. There is a requirement to look at the overall picture.[80]We took account of the guidance regarding what a PCP constitutes in paragraph 6.10 of the Code and that the purpose of the comparison with people who are not disabled is to establish whether it is because of disability that a particular PCP disadvantages the disabled person in question. There is no requirement to actually identify a comparator or comparator group whose circumstances are the same or nearly the same as the disabled person. Substantial disadvantage is something that is more than minor or trivial. We took into account paragraph 6.2.8 of the Code as to what reasonable steps may involve in terms of trying to alleviate the effect of the substantial disadvantage. The burden of proof[81]We take account of the burden of proof with the requirement that a claimant can demonstrate both substantial disadvantage to show the duty has arisen and evidence of some apparently reasonable adjustment that could have been made as set out in Project Management Institute v Latif [2007] IRLR 579. The reasonableness of proposed adjustments[82]The judgment of Laws LJ in Newham Sixth Form College v Sanders [2014] EWCA Civ 734 provides that an objective assessment to the reasonableness of proposed adjustments cannot be undertaken by an employer unless it appreciates the nature and the extent of the substantial disadvantage imposed upon the employee by the PCP, thus an adjustment to a working practice can only be categorised as reasonable or unreasonable in the light of a clear understanding as to the nature and extent of the disadvantage. Implicit in this is the proposition that an adjustment will only be reasonable if it is tailored to the disadvantage in question and the extent of the disadvantage is important since an adjustment which is either excessive or inadequate will not be reasonable. In Smith v Churchills Stairlifts Stairlifts plc [2006] IRLR 41 it was held that a tribunal should look at the proposed adjustments from both the perspective of the employee and the employer. Moving a disabled employee to a new role may be a reasonable adjustment dependent on the circumstances. The test of reasonableness is an objective one.[83]Mr Braier referred us to the guidance of the House of Lords in the well-known case of Archibald v Fife Council [2004] IRLR 651 which held that it may be a reasonable adjustment to transfer a disabled person, who is unable to do their contracted role, to an existing vacancy at a slightly higher grade without competitive interview, but that depends very much on the circumstances. He says that Archibald was very specific to a street sweeping operative physically incapacitated and only able to do a desk job.[84]Mr Braier referred us to the case of Linsley v Revenue and Customs Commissioners UKEAT/0150/18/JOJ which I read given its relevance. For any given disadvantage there may be a number of adjustments that could be made which might individually be reasonable. At paragraph 38: “An employer is not required to select the best or most reasonable of a selection of reasonable adjustments, nor is it required to make the adjustment that is preferred by the disabled person”.[85]We take account of the guidance in Hilaire v Luton Borough Council [2023] IRLR 122 that the disadvantage needs to be an effect of the disability and that there needs to be some causative nexus between the disability relied upon and the substantial disadvantage. Submissions[86]Both parties provided written submissions and had the opportunity to speak to those at some length. Respondent[87]Mr Braier breaks the various adjustments requested down into a sequential analysis. He says that in effect the adjustment of working in a quieter area had been trialled and failed. As previously indicated, he breaks the trials into three separate periods. He says the Claimant accepts that those trial periods were not successful. He sets out the requirements for the inperson elements of the Help Desk role. He says the reasonable adjustments policy did not apply to the Claimant’s application to the Systems Administrators role. He says that Mr Angeli was a demonstrably superior candidate for that role. He denies that there was any unnecessary delay in the Claimant’s appointment to the PA role. It would have been open for her to apply pending her enquiry of Ms Thompson as to its permanence and to have reassessed her position on clarification being provided if her application was successful.[88]He says this is not a case where it would be appropriate for a statutory uplift to be made as a result of any breach of the ACAS Code. He says that whilst the grievance policy provides for a tight five day time period that the overall duration for the conduct of the grievance was not unreasonable and it would not be just and equitable or otherwise appropriate for any uplift to be made. Our conclusions and discussion Failure to make reasonable adjustments (S 20 and 21 of the EQA)[89]The respondent accepts the PCP that the Help Desk operator is required to work in the Estates Office and substantial disadvantage in relation to PTSD but not fibromyalgia.[90]Although it does not have any bearing on our ultimate conclusions we do not think it appropriate to draw a distinction between the physical manifestations of fibromyalgia and the PTSD/mental health issues. In doing so we apply judicial notice but also refer to the OH reports which indicate that there is an element of overlap between these conditions given that a flair up of the physical manifestations of fibromyalgia would be likely to exacerbate pre-existing mental health issues and vice versa. We therefore take the view that both conditions contribute to the claimant’s substantial disadvantage in her sensitivity to noise. We do not consider it sensible to try and draw a line of demarcation between the effects and the resulting disadvantage of the two conditions.[91]We have to consider whether the Respondent took such steps as were reasonable to alleviate the disadvantage. Moving the Claimant to a quiet office on site[92]We need to consider whether the adjustment of moving the Claimant to a quieter office was reasonable and whether it was actually implemented.[93]Whilst the Respondent made some adjustments we are not satisfied they were reasonable in the circumstances as they did not provide a realistic prospect of alleviating or at least ameliorating the substantial disadvantage. We reach this decision for the following reasons.[94]Whilst Mr Braier says that the three trial periods had failed we consider that they failed, or at least arguably failed, because the adjustment was not sufficient to address the concerns the Claimant had raised. We accept that the Claimant suffered substantial stress and trauma on being exposed to noise. Providing her with the opportunity of spending some limited time away from the Help Desk would have assisted but not ultimately alleviated the substantial disadvantage. The Tribunal by analogy considered the position of a physically disabled employee who cannot walk to access toilet facilities and not dissimilar to the position in the Linsley case concerning accessibility of car parking. Whilst it may be an adjustment to reduce the walking distance to toilet facilities from say 200 metres to 100 metres, if the individual can only walk 10 metres it would not alleviate the substantial disadvantage.[95]During the trial periods the Claimant was required to spend substantial time in the Estates Office. She says at paragraph 50 in her witness statement that she might be required to attend six times a day moving between the officer, hot desking, suffering disruption as to where her laptop and other facilities were located and she felt constantly monitored.[96]What was not trialled was the Claimant working at a quiet location within the building and not being required, other than on a strictly necessary basis, to attend the Help Desk. We consider that it would have been reasonable for such an adjustment to have been undertaken on a trial period. With the Claimant working from a desk on the fourth floor other staff and contractors could have been informed by signage and emails as to the Claimant’s primary location and she could have taken her lunch break at say between 12-1pm and her colleague on the Help Desk between 1-2pm. We do not accept that there was an overwhelming need for her physical presence on the Help Desk. Whilst the help desk is near the entrance to the building other employees, for example, on the fourth floor would have been able to find the Claimant quicker than having to go to the lower ground floor. Therefore we do not accept that it would necessarily have been disruptive. Further, we accept that the majority of work undertaken was by email, telephone and did not require in person attendance. We also take account of the fact that P1 emergency situations are very rare and if there were, for example, a fire in the building not, in any event, necessarily routed by the Help Desk. We are therefore not satisfied that the grounds put forward by the Respondent, when considered objectively, provide adequate justification for not trialling the Claimant working from a desk whether on the fourth floor or elsewhere which would have substantially reduced her exposure to the noise she complains of in the Estate Office.[97]We consider that when the initial trial took place in January 2020 that it would have been appropriate for there to be a reasonable period during which the success or otherwise of the claimant being based in a quiet location was assessed. If there had been the sort of difficulties the Respondent postulates they could have been assessed and addressed. We do not consider that a trial took place during which the Claimant’s substantial disadvantages, as she had repeatedly set out, were adequately addressed. In reaching this decision we took account of the helpful guidance of His Honour Judge Auerbach in the EAT’s judgment in Rentokil Initial UK Ltd v Mr M Miller in which when discussing trial periods at paragraph 26 he said: “A trial period is a procedure that an employer should sensibly adopt in an appropriate case but does not appear to be an adjustment as such”.[98]We consider that there should have been a proper structured trial period during which appropriate criteria could have been used to assess whether it had or had not worked.[99]We also took account of paragraph 30 in the judgment in Rentokil that the law does not require the adjustment sought to be guaranteed to eliminate the substantial disadvantage). Further, we took account of the judgment of the EAT in Romec Limited v Rudham UKAEA/0069/07 which held that if there was a real prospect of a rehabilitation programme resulting in a return to work it might be reasonable to expect the employer to take that course. Further, in the Court of Appeal’s judgment in Griffiths v Secretary of State for Work and Pensions [2015] EWCA Civ 1265 that any change which would or might remove the substantial disadvantage caused by the PCP is in principle capable of amounting to a relevant step. The only question is whether it is reasonable for it to be taken. Permanently redeploying the Claimant to a suitable alternative in the Systems Administrators role[100]We accept the Respondent’s argument that the readjustments policy did not apply given that it was at a higher grade. Further, the Claimant did not have the commensurate level of experience and skills against the job selection criteria of Mr Angeli. The Respondent did not therefore fail to make a reasonable adjustment in not giving her the position without going through a competitive interview process. Also it would arguably have involved working in the Estates Office and reporting to Ms Rooney. Whether the Claimant should have been moved more speedily into the Project Assistant, India Office Maps role[101]We reject this contention. We consider that there was no undue delay and, in any event, the Claimant could have moved quicker had she wished to do so. We accept the Respondent’s argument that she did not need to wait from the response from Ms Thompson regarding the permanence or otherwise of the role and she took 19 days’ accrued holiday before starting in the New Year. Moving the Claimant to a quiet office on site temporarily until a permanent suitable alternative role was identified[102]This is covered by our conclusion above in which we say that the adjustment of a quiet office should have been made and had not been properly implemented. Had it been it is at least arguable that the Claimant would have remained in the Help Desk role so the requirement for a temporary adjustment until an alternative role could be found would not have applied. However, for completeness if we take the period from 26 May 2022 to the Claimant taking sick leave on 4 July 2022 we consider that the adjustment should have been made. It would arguably have provided the Claimant with the opportunity of continuing at work. Allowing the Claimant to work remotely[103]Given our findings regarding an adjustment of the claimant working in a quiet location in the Library it is not necessary to say whether the Claimant could have done her job entirely remotely. We consider that working in a quite office in the Library would have been sufficient to address the substantial disadvantage and therefore working entirely remotely was not necessary. Further we accept that there are some duties such as inspection of building maintenance deficiencies which are undertaken in person. The Claimant did not have an issue with, for example, inspecting broken lights, toilet facilities etc. It was being in a noisy office which she had a problem with. We do not consider that it would have been reasonable adjustment, taking into account the respective advantages and disadvantages for employer and employee, for the Claimant to work remotely. Did the Respondent comply with its internal policies?[104]We are satisfied that the Respondent complied in all material respects with its internal policies namely the readjustments, redeployment and grievance policies. Whilst the time periods within the grievance policy were not strictly complied with we do not consider that it would be just and equitable for there to be an uplift pursuant to the ACAS Code. Timing of the claimant’s disabilities[105]One issue which the Claimant did not fully address was when she had a disability on account of her PTSD/ mental health issues. The Respondent has conceded knowledge of that condition as a disability from 27 January 2022. However, we consider that the Claimant satisfied the definition of disability, and the Respondent had actual knowledge from not later than 18 October 2019 and arguably much earlier. 18 October 2019 is the date of a letter from the OH Dr Owen Keyes-Evans in which he says that you may wish to help in her symptom relief particularly since a person with symptoms of depression and anxiety is likely to find background noise and disturbance less easy to tolerate and possibly distracting by allowing her to work in a quieter area. He concluded that her condition would appear to cause substantial impairment of day to day activities and is likely to persist beyond 12 months which in his opinion was likely to mean that she had a disability pursuant to the EQA. Whilst the existence of disability is a matter for the Tribunal to determine we nevertheless consider it to be relevant.[106]We also take account of the summary of the Claimant’s NHS/GP medical records (page 1371 in the bundle) which refer to depression from 25 September 2014 and PTSD from 30 January 2020. We consider that PTSD, anxiety and depression form part of the claimant’s overarching mental health issues. As such it is arguable that she had a disability from 2014 we find that she fulfilled the definition of disability on account of mental health issues from 18 October 2019.[107]We also consider the Respondent’s contemporaneous communications regarding the claimant’s health issues to be consistent with it having actual knowledge of her disability. In particular Ms Revell’s email to Ms Rooney of 21 November 2019 when she makes reference to current reasonable adjustments and in the penultimate paragraph the Claimant having indicated that the current office environment is exacerbating her disability we should make every effort to fully explore all reasonable adjustments as required by the EQA.[108]We then take account of the fact that the first failure to make a reasonable adjustment, the provision of a quiet office, took effect in January 2020. We consider that this failure was part of a continuing course of conduct as opposed to being an act with continuing consequences. Given that there was only a relatively short period from the commencement of the revised working arrangements on 8 January 2020 until the onset of Covid and lockdown we are of the opinion that there was insufficient time, notwithstanding what we consider to be the inadequacy of the adjustment, for a proper assessment to be made as to whether it was alleviating the substantial disadvantage the Claimant was suffering from. Final conclusion[109]We consider that the Claimant should have been given a quieter office having taken account of the practicability of the step, the costs of doing, the size of the Library and the availability of potential desks.[110]The claim for failure to make reasonable adjustment in relation to providing a quiet office on site succeeds whilst all other claims fail, save that under 3.3, to the extent to which the quiet office in 3.1 did not alleviate the issue, we consider that there should have been a temporary adjustment of a quiet office until a suitable alternative role could be found for the Claimant.
Remedy
[111]The Claimant provided a schedule of loss and the Respondent produced a counter schedule. The Claimant gave evidence in relation to paragraphs 167-182 of her witness statement which deal with loss of earnings at paragraph 167 and the remainder with injury to feelings. The respondent[112]Mr Braier says there were multiple factors behind the Claimant’s stress. He says that when she returned to work and met with Ms Rooney on 4 October 2021 that she referred to feeling stressed and often overwhelmed by the amount of work she had to do both on the Help Desk and as part of the APM apprenticeship. He says there were other factors behind her absences and referred to an email she sent to Ms Rooney on 27 January 2022 when she said that she was feeling very unwell and upset after the previous day’s therapy assessment and could not work that day. He says there were other factors than the failure to make reasonable adjustments as per the Tribunal’s findings which caused or contributed to her absence from work. He refers to an email from the Claimant of 21 February 2022 in which she refers to being absolutely swamped with emails and requests both on the Help Desk and apprenticeship and this being extremely stressful. The Claimant says the work overload was exacerbated by the level of noise and she was feeling so unwell at this time.[113]Mr Braier says that the Claimant was only on site for very short periods in 2022, eight days between 17 and 26 January 2022 and then off sick on 27 January 2022 following the PTSD therapy the previous day. He refers to the second period where she returned to work from 26 May 2022, the first two weeks working from home, then two weeks with two days a week at home, three shortened days at the Library and then week five during which she had some time in the Library on the Monday, Tuesday, Wednesday, Thursday working from home and the Friday being the final day when she left early before commencing a long period of sickness absence. He therefore says there were only approximately 18 days, and not complete days, where she was working in the Estates Office.[114]Mr Braier says that many of the matters upon which the Claimant relies in her witness statement in support of her claim for compensation for injury to feelings do not relate to the pleaded claim, and even less the Tribunal’s finding in relation to reasonable adjustment. In particular he refers to her sense of grievance and indignation about a lack of career progression over 12 years.[115]The Respondent says that the award for loss of earnings in September, October and November 2022 should be reduced as a result of Thursday being a possible working from home day. Further in respect of October and November 2022 by 40% as a result of two days a week being available for looking for alternative employment. Further it says it should be considered as a loss of a chance as she would possibly have been off in any event. Mr Braier referred to Ministry of Defence v Cannock [1994] IRLR 509. The claimant[116]The Claimant says that she should receive an award in the upper Vento band. She says that it is not a single act of discrimination. She says she was asking for adjustments from 2019. She says that her PTSD was exacerbated as a result of the Respondent’s conduct. She refers to a loss of personal confidence, general deterioration in her health and delays in the Tribunal process which she puts at the Respondent’s door. The Law Injury to feelings
The Law
[117]A tribunal has the power to award compensation to an employee for injury to feelings resulting from an act of discrimination by virtue of s.124 (5) and s.119 (4) of the EQA.[118]The purpose of the award is to compensate the complainant for the anger, upset and humiliation caused by the discrimination.[119]As set out in Prison Service v Johnson [1997] IRLR 162:• Awards should be compensatory and just to both parties.• Awards should not be too low as this would diminish respect for the anti-discrimination legislation.• Awards should bear some broad general similarity to the range of awards in personal injury cases.• In exercising their discretion tribunals should remind themselves of the value in everyday life of the sum they had in mind by reference to purchasing or earnings and should bear in mind the need for public respect for the level of awards made.[120]The Vento bands for claims presented after April 2021 were as follows: Lower Band: £900 to £9,100 Middle Band: £9,100 to £27,400 Upper Band: £27,400 to £45,600[121]The judgment of Justice Mummery in Vento v Chief Constable of West Yorkshire Police [2002) EWCA Civ 1871 refers at paragraph 65 to the higher band being appliable for the most serious cases where there has been a lengthy campaign of discriminatory harassment on the grounds of sex or race and the middle band for serious cases which do not merit an award in the higher level.[122]We need to take account of the following factors:• The discrimination must cause the injury.• Knowledge of the discrimination is not necessary.• The need for foreseeability of injury to feelings is not necessary.• The award should compensate the claimant’s injury and not punish tortfeasor for the manner of discrimination.[123]Mr Braier referred us to the judgment of Justice Taylor in Shakil v Samsons Limited [2024] EAT 192 and specifically paragraph 16.2 that the purpose of an award is to compensate the Claimant rather than punish the Respondent. Further, he referred us to his guidance on the calculation of an award for injury to feelings at paragraph 20 that a tribunal should identify the discriminatory treatment for which an award is made, make findings of fact about the injury to feelings because of the discriminatory treatment and explain where the injury to feelings award falls within the Vento bands.[124]As set out in Lexis he referred to various first instance decisions where awards have been made in the lower band. He says these would be appropriate comparators. There is no need for me to outline these. He says that it is not appropriate for an award to be made in the middle band as the case is not comparable with those referred to in the reports. He says cases in the middle band involve discriminatory treatment which was far wider and more significant and where employment was put in jeopardy as a result of the conduct in question. He says the Claimant’s employment was not compromised.[125]The Claimant disputes his contention regarding whether her employment was compromised as she believes it was as reference was made to the redeployment policy. Our conclusions Financial losses financial for September, October and November[126]We have applied a 20% reduction across the board on the basis that there was a possibility that the Claimant may have been off work in any event even if the adjustment had been made. We do, however, take into account that prior to the first limited adjustment in January 2020, and subsequent to her starting in the PA role on 3 January 2023, there is no evidence of the Claimant having unusually high levels of sickness absence. Therefore we consider a reduction of 20% is appropriate.[127]We have then considered whether there should be a reduction in relation to Thursday working. Whilst we have referred to the relevant correspondence there is no unequivocal advice to the Claimant that she could work one day a week from home and still be paid in full. Absent such unequivocal advice we consider that it would be inappropriate to make a reduction of 20%. In any event we consider that it would be unusual for an employee to be regarded as of on sick leave for 80% of the week but working for the other 20%.[128]Whilst there was reference to a conversation with Ms Gallagher that the claimant spend 2 days a weeks looking for another job (page 1085 in the bundle) and her email to Ms Thompson of 10 October 2022 there may be options regarding my return to work while I am looking for alternative suitable roles e.g. working on my job applications a day or two a week, she goes on to say it would have to be agreed with Ms Rooney. Absent express agreement we do not consider it appropriate to make such a reduction.[129]Therefore the award under this heading is £1,240.49.[130]As for the period over which interest applies whilst Mr Braier has referred to a total of 1099 days, with a start date of 23 January 2020, we consider that this would entail awarding the Claimant interest on sums which were not yet due. Therefore we consider that the appropriate start point is 15 October 2022 which gives 807 days and reducing by half gives 403.5 days and interest of £109.71 and a total award under this heading of £1,350.20.[131]As this element of the award relates to loss of income it would be subject to deduction of appropriate tax and employee national insurance contributions or if paid gross the Claimant she would be responsible for accounting to HMRC for applicable tax deductions. Injury to feelings[132]It is important for us to confine this award to the pleaded claims. This is not a case where the Claimant brought a claim for harassment on account of disability, discrimination arising from disability and so forth but solely for a failure to make reasonable adjustments. Given our finding that the respondent failed to make a reasonable adjustment in providing the claimant with a quiet room over various trial periods we accept that she suffered injury to feelings. However many of the matters she complains about from paragraph 168-182 in her witness statement go to more general dissatisfaction, disillusionment and indignation relating to her employment with the Respondent rather than the failure to make the reasonable adjustment. These are not matters which we take into account.[133]It would not be appropriate for us to make any award for personal injury as a result of the alleged exacerbation of the claimant’s PTSD/mental health issues. Understandably the Claimant understandably has not given disclosure as to the originating cause of her PTSD and it would be inappropriate for us to speculate as to what factors may have caused or exacerbated that condition.[134]We consider that this case falls within the lower Vento band and that £5,000 is appropriate. This award reflects the Claimant suffering emotional trauma and upset as a result of what she considered to be the Respondent’s failure to properly engage with her multiple requests to be able to work in a quiet environment and her perception, albeit not necessarily known to her at the time, that the she was perceived as being an irritant by her frequent requests. In taking this into account we have avoided conflating the actual claim with one for harassment on account of disability. Interest on the award The time period is 1099 days there is no halving of that figure so it runs from the 27 January 2022 through to today 30 January 2025 giving interest of £1,204.38 which combined with the £5,000 gives a figure of £6,204.38 as that figure is for injury to feelings and unrelated to termination of employment it can be paid to the Claimant on a tax exempt basis. So, just to conclude we have taken account of the relevant factors, we have applied particularly the guidance in Prison Service v Johnson that awards should be compensatory and just about parties, awards should not be too low and this would diminish respect for the anti-discrimination legislation, awards should bear some broad general similarity to the range of awards in personal injury cases and in exercises their discretion Tribunals should remind themselves of the value in every day life of the sum they had in mind by reference to purchasing or earners and should bear in mind the need for public respect for the level of awards made and that awards should compensate the Claimant’s injury and not punish the Respondent for the manner of discrimination, so for all of those reasons we consider an award for injury to feelings of £5,000 to be appropriate. EMPLOYMENT TRIBUNALS Claimant: Ms L Kogut Respondent: The British Library Before: Employment Judge Nicolle in Chambers Judgment
The Law
[1]The Claimant’s application dated 22 March 2025 for reconsideration of the Tribunal’s judgment dated 30 January 2025 (the Judgment), and sent to the parties on 10 January 2025, is refused with the exception of the grossing up of the compensatory payments to the Claimant pursuant to paragraphs 130 and 131 of the Judgement.[2]I have considered the application by the Claimant dated 22 March 2025 for a reconsideration of the Judgment (the Reconsideration Application).[3]I have considered the Reconsideration Application in accordance with the provisions set out in Rule 68 of the Employment Tribunal Procedure Rules 2024 (the Rules), which provides that reconsideration is only appropriate where it is necessary in the interests of justice, and under Rule 70 that there is a reasonable prospect of the original decision being varied or revoked.[4]Reconsiderations are limited exceptions to the general rule that employment Tribunal decisions should not be reopened and relitigated. It is not a method by which a disappointed party to proceedings can get a second bite of the cherry. 1 of 3[5]Reconsideration is 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.[6]A Tribunal dealing with the question of reconsideration must seek to give effect to the overriding objective to deal with cases ‘fairly and justly’ in accordance with Rule 3.[7]In considering the application regard needs to be given to not only the interests of the party seeking the reconsideration, but also to the interests of other parties to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation.[8]I do not consider that the various matters referred to in the Reconsideration Application would, in accordance with the interests of justice, make it appropriate for there to be a detailed reconsideration of the Judgment.[9]I have reached this decision for the following reasons. The Claimant’s wish to add additional claims[10]In section 1 (pages 1 to 15) the Claimant seeks to add claims for harassment on account of disability pursuant to section 26 of the Equality Act 2010 (the EQA) and discrimination arising from a disability pursuant to S 13 of the EQA. However, these claims were not included in the particulars of claim nor the agreed the list of issues. The claim, and therefore the Judgment, were confined to the matters set out in the agreed list of issues, which were confined to an alleged failure by the Respondent to make reasonable adjustments on account of disability pursuant to sections 20 and 21 of the EQA. It would therefore not be appropriate to retrospectively add additional claims to those pleaded. While such claims may have been arguable it would be wholly inappropriate for them to be retrospectively added and adjudicated. The Claimant’s allegation of procedural unfairness as result of alleged misrepresentation by the Respondent’s counsel[11]In section 2 (pages 15-17) the Claimant refers to allegations of procedural unfairness as result of alleged misrepresentation by Mr Braier in his closing submissions. In its deliberations the Tribunal assessed the credibility of the witnesses, the evidence and took account of the parties’ submissions. The Claimant’s assertions regarding Mr Braier’s submissions do not give rise to a ground for the reconsideration of the Judgment. It would not be appropriate for the Tribunal to retrospectively express any opinion as to the parties’ submissions. Request the recalculation of lost earnings compensation[12]In section 3 (page 17) the Claimant requests recalculation of the lost earnings compensation. I consider that this application is meritorious. The award for lost earnings of £1240.49 in paragraph 130 should be grossed up to reflect basic 2 of 3 rate tax to £1488.59. There should then be a consequential increase in the figure in paragraph 131 to an interest inclusive gross figure of £1620.24. The Tribunal’s calculations had been based on the net figures provided by the Claimant in her schedule of loss dated 15 November 2023. For the avoidance of doubt the award for injury to feelings does not need to be a grossed up as it is not subject to the deduction of tax.[13]In the circumstances I consider there is no reasonable prospect of the Judgment being varied or revoked, save in respect of the grossing up of the awards as referred to in paragraph 12 above) and given that this should not be a matter of dispute between the parties, I consider it is therefore unnecessary to seek the Respondent’s response to the Reconsideration Application and nor is it necessary to seek the parties’ views on whether it can be determined without a hearing.