Ms F Idowu v Royal Borough of Kensington and Chelsea: 2200360/2023

EMPLOYMENT TRIBUNALS

Case No 2200360/2023

Between

Ms F IdowuClaimant

Royal Borough of Kensington and ChelseaRespondent

Before

Employment Judge Singh

Mr A Oyegoke (instructed by Representative) for claimant

Ms G Crew (instructed by Counsel) for respondent

Date 22 November 2024

JUDGMENT

[1]The Claimant’s claim for Unfair Dismissal is not well-founded and is dismissed.

[2]The Claimant’s claim for direct disability discrimination is not wellfounded and is dismissed.

[3]The Claimant’s claim for indirect disability discrimination is not wellfounded and is dismissed.

[4]The Claimant’s claim for unfavourable treatment because of something arising in consequence of a disability is not well-founded and is dismissed.

[5]The Claimant’s claim for failure to make reasonable adjustments is not well-founded and is dismissed.

[6]The Claimant’s claim for disability related harassment is not wellfounded and is dismissed

[7]The Claimant’s claim for victimisation is not well-founded and is dismissed.

REASONS

[8]The Claimant requested written reasons following the oral decision being delivered at the hearing. They are as follows;

Background

[1]The Claimant pursues claims of unfair dismissal and disability discrimination against the Respondent.

[2]The Claimant resigned her employment and thus is claiming constructive unfair dismissal. In relation to the breach of contract, the Claimant relies upon a number of actions taking place over the last 2 years of her employment which she says amounted to breaches of mutual trust and confidence

[3]The Claimant says the last straw was a meeting that took place on the 16th August 2022. She resigned on the 17th August 2022.

[4]The Respondent denies that the acts amounted to breaches of mutual trust and confidence. The Respondent also alleges that the meeting did not amount to a last straw.

[5]The Respondent also says that the Claimant did not resign because of the meeting or the breaches. They say that the Claimant left because she found a new job.

[6]In relation to the disability discrimination. The Claimant complains of a number of acts by the Respondent in managing her sickness absence and her workload when she was at work. The Claimant complains these amount to harassment, victimisation, direct discrimination, indirect discrimination, discrimination arising from and failure to make reasonable adjustments.

[7]The Respondent denies that they discriminated against the Claimant.

[8]The Respondent also alleges the claims are out of time. They say that given the timing of the EC, anything that occurred before 11th August 2022 was out of time. The resignation would be in time therefore and the last straw incident. If the ET were to find that the other complaints were out of time, the Claimant argues that they form a continuing sequence of events and that the date of the last incident is the last straw which is in time.

[9]In the alternative the Claimant says it is just and equitable to extend the time limit.

[10]The Claimant lodged her claim with ACAS on the 10th November 2022. The certificate is dated 22nd December 2022.

[11]The ET1 was submitted on the 19th January 2023. The Respondent submitted the ET3 on 6th March 2023.

[12]There was a CMH on 21st December 2023. The claims and issues were agreed by the parties in advance and attached to the case management order. The hearing.

[13]The hearing took place over 2 periods. Initially this was between 13th-17th March 2024 (5 days). There was not sufficient time to hear all the evidence in that period so the hearing went part heard. It was continued on the 21st- 24th October 2024.

[14]The tribunal heard evidence from 2 witnesses for the Claimant- herself and Ms Adenike Olunloyo (the Claimant’s sister). The ET and Respondent had no questions for Ms Olunloyo, who’s statement gave 2nd hand information about the Claimant relaying events to her, so she was not required to be cross examined, although the ET did read the statement and consider it.

[15]The Respondent had 4 witnessesa. Amanda Anerville, the Claimant’s senior line manager and also the Claimant’s line manager for a temp period

b. Poonam Gagda, the Claimant’s former line manager

c. Anita Stokes (Lead Strategic Finance Manager, Amanda Anerville line manager)

d. Jane-Mary Newcome who supported the Claimant in a meeting.

[16]Both parties had representatives. Both representatives provided written submissions which were supplemented orally.

[17]Prior to those submissions, we heard an application from the Claimant to expand the Claimant’s claims to add new allegations of unfavourable treatment for several of the claims. This application was refused on the basis that the balance of prejudice and hardship on the Respondent to defend the claim at such a late stage outweighed that to the Claimant. We took into account that these were issues the Claimant would have been aware of before disclosure and certainly before the hearing and so could have been raised at a much earlier time. We also took into account the fact that the Claimant had a representative and he could have had raised this before evidence had been concluded.

[18]We found that as all the evidence had been heard, we could not make reasonable findings on these issues if they were added. Witnesses hadn’t been specifically asked about them in the context of the claims. It would not be reasonable to call all the witnesses back and delay the conclusion of the case even further.

[19]The prejudice on the Respondent in being unable to properly defend a claim being added so late outweighed the prejudice on the Claimant. As such, the application was refused. The claims and issues

[20]A list of issues had been agreed by the parties before the hearing. They are set out below. 1. Did the Respondent fundamentally breach the Claimant’s contract of employment namely the implied term of trust and confidence (“the employer shall not without reasonable and proper cause conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee”) entitling the Claimant to resign with or without notice (section 136(1)(c) ERA 1996)? 2. What was the most recent act (or omission) on the part of the Respondent which the Claimant says caused, or triggered, their resignation? The meeting of 16 August 2022, during which reasonable adjustments were not made as requested by the Claimant and as recommended by Occupational Health on 18 July 2022. Specifically, as per paragraphs 41-43 of the Claimant’s Particulars of Claim, the Claimant returned to work and had a meeting with her manager, Amanda Anerville. Ms Anerville informed the Claimant that she would be line managing her instead of the newly recruited Finance Manager due to her sickness absence. Ms Anerville did not discuss pacing her workload or a phased return to work. Instead, she assigned an excessive amount of work with tight deadlines. It was clear to the Claimant that her workload had not been covered during her absence, and that in addition to these new assignments, she had a lot of work to catch up on after a number of months of sickness absence. This was contrary to the Claimant’s request for reasonable adjustments and the recommendations of Occupational Health, specifically: a) Implementation of Occupational Health recommendations and stress risk assessments; b) Phased return from work after sick leave; c) Pacing of workload to reduce stress; d) Weekly supportive meetings with line manager reviewing workload and pacing deadlines; e) Providing cover for ordinary responsibilities while taking on additional projects and while on sick leave; and f) Line management willing and able to provide the Claimant with the level of support required. After nearly a year of requesting these adjustments be made, and conversations with her manager regarding the adjustments, it became clear to the Claimant that the Respondent had no intention of implementing the adjustments. This was the ‘last straw’ that led to the Claimant’s resignation. 3. Was that act/omission part of a course of conduct comprising the following alleged acts: Numerous and ongoing failures from 2020-2022 to make reasonable adjustments as outlined above to the Claimant’s workload, and as outlined in paragraphs 14-43 of the Claimant’s Particulars of Claim. Specifically:• In May 2020, the Claimant’s performance was downgraded due to sickness absence taken for fibromyalgia (para 14);

• At the end of 2020, Claimant was instructed by Respondent not to use annual leave when she became ill due to fibromyalgia (para 19);

• At the end of 2021, Amanda Anervile began line managing Claimant, and did not implement the adjustments listed above or familiarise herself with Occupational Health or the Respondent’s risk assessment recommendations (para 22);

• Despite this request, none of the requested adjustments were implemented (para 29);

• In June 2022, the Claimant was invited to a First Stage Formal Meeting to discuss absence management by Ms Anervile (para 33);

• In July 2022, the meeting went ahead and it was attended by the Claimant’s union representative, who reported to the Claimant that Ms Anervile intended to move to Stage Two if she continued taking sick leave for fibromyalgia with little to no discussion of adjustments and how they might help the Claimant to improve attendance (para 40). 4. Did the Claimant resign promptly in response (or partly in response) to that breach? The Claimant resigned on 17 August 2022 in response to the Respondent’s discriminatory acts and last failure to make reasonable adjustments on 16 August 2022. R accepts that the Claimant is disabled within meaning of s6 EA 2010. TIME POINT RELEVANT TO DISABILITY DISCRIMINATION CLAIMS: The ACAS EC process was triggered on 10 November 2022. The Respondent contends that any allegation pre- 11 August 2022 is out of time. 1. Were any of the acts pre-dating 11 August 2022 part of a continuing act or state of affairs ending after that date? 2. If not, has the Claimant shown that it would be just and equitable to extend time? What is the reason why the Claimant did not put the claim in sooner? SECTION 13: DIRECT DISCRIMINATION BECAUSE OF DISABILITY 1. Did any alleged acts of direct disability discrimination take place, and if so, were they as described by the Claimant? a) Initiating First Stage formal absence management against the Claimant without considering reasonable adjustments and due to her having fibromyalgia. b) Stating an intention to move to Second Stage absence management procedures if the Claimant continued to take sick leave, without considering whether reasonable adjustments could have been made to improve attendance. c) Failing to provide the Claimant with consistent, supportive line management and declining to handover the Claimant’s line management responsibility from the Strategic Finance Manager to the Finance Manager, or another supportive line manager at the appropriate level of seniority, due to the Claimant having fibromyalgia and taking related sick leave. d) The failure to adequately cover the Claimant’s job responsibilities while the Claimant was on sick leave. 2. How does each act relied on constitute a detriment within meaning of s39(2)(a) EA 2010? 3. Has the Respondent treated the Claimant as alleged less favourably than it treated or would have treated a comparator in not materially different circumstances? Who is the comparator the Claimant relies upon or is it a hypothetical comparator? The Respondent treated the Claimant less favourably that it would treat a hypothetical comparator who did not have fibromyalgia. With a hypothetical comparator, the Respondent would have explored whether reasonable adjustments could have improved absence levels. 4. If there was less favourable treatment, can the Claimant prove facts from which the Tribunal could properly and fairly conclude the difference in treatment was because of her disability/disabilities? 5. If so, what is the Respondent’s explanation? Does it prove a non-discriminatory reason for any proven treatment? 1. What is/are the provision, criterion or practice (“PCP”) relied on? The Respondent’s Management of Absence Policy, which requires a trigger of the First Stage Formal Meeting after six working days of sick leave in a 12 month period. The Respondent’s requirement that annual leave not be taken when an employee is sick. The Respondent’s expectation that employees take on extra projects in addition to their ordinary responsibilities without support in prioritising work, pacing workload or leniency in managing deadlines. The Respondent’s practice that employees catch up on work not due to sick leave in addition to ongoing responsibilities and additional projects. The Respondent’s practice of overloading work, e.g., assigning more work to Finance Officers than could be completed within working hours. 1. Was it applied to everyone? 2. If so, did or would that PCP put persons with the same disability as the Claimant at a particular disadvantage when compared with other persons? 3. Was the Claimant in fact put at that particular disadvantage? 4. If so, can the Respondent show that the application of the PCP was a proportionate means of achieving a legitimate aim? The Respondent claims that its legitimate aims were:

• to ensure adequate attendance levels of employees in the interests of managing public services and obtaining value for money with public funds

• [to support employee wellbeing by ensuring employees take sick leave when ill rather than use annual leave.. REASONABLE ADJUSTMENTS: SECTION 20 AND 21 1. What PCP(s) is the Claimant relying on? The Respondent’s expectation that employees take on extra projects in addition to their ordinary responsibilities without support in prioritising work, pacing workload or leniency in managing deadlines. The Respondent’s practice that employees catch up on work not due to sick leave in addition to ongoing responsibilities and additional projects. The Respondent’s practice of overloading work, e.g., assigning more work to Finance Officers than could be completed within working hours. 2. Did the Respondent apply the PCP(s)? 3. Were they applied to the Claimant at the material time? 4. If so, did the application of any such PCP put the Claimant at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled? The PCP put the Claimant at a disadvantage because the stress of additional responsibilities and unpaced workload without support caused frequent flare ups of fibromyalgia symptoms, which caused the Claimant to become unwell and required the Claimant to take sick leave. 5. If so, what adjustments does the Claimant say should have been made and when? The Claimant made the following requests for reasonable adjustments from 2020-2022, most recently on 11 March 2022 and 13 April 2022, which were: g) Implementation of Occupational Health recommendations and stress risk assessments; h) Phased return from work after sick leave; i) Pacing of workload to reduce stress; j) Weekly supportive meetings with line manager reviewing workload and pacing deadlines; k) Providing cover for ordinary responsibilities while taking on additional projects and while on sick leave; and l) Line management willing and able to provide the Claimant with the level of support required. 6. Were those adjustments reasonable and would they have avoided the disadvantage? DISCRIMINATION ARISING FROM DISABILITY SECTION 15 EA 2010 1. The Claimant relies on the following treatment: a) Being marked down in her 2020 performance appraisal; b) Being instructed that she could not take annual leave while sick; c) Triggering of first stage formal absence management with the goal of disciplining or dismissing the Claimant, without considering sick leave connected to her disability and the potential impact that reasonable adjustments could have on her sickness absence levels. d) Declining to handover line management responsibilities from the Strategic Finance Manager to Finance Manager or another supportive line manager at the appropriate level. 2. If the above treatment is proven, did the Respondent treat the Claimant unfavourably? 3. If so, what was the reason for the unfavourable treatment? 4. Did the reason for the unfavourable treatment arise in consequence of the Claimant’s disability? 5. Was the unfavourable treatment a proportionate means of achieving a legitimate aim? 6. The Respondent to set out the legitimate aim(s) it relies upon.

a. to ensure adequate attendance levels of employees in the interests of managing public services and

b. obtaining value for money with public funds

c. to support employee wellbeing by ensuring employees take sick leave when ill rather than use annual leave. SECTION 26 HARASSMENT CLAIM 1. The Claimant relies on the following conduct: The conduct of Amanda Anerville, Strategic Finance Manager, when she

(1) downgraded the performance of the Claimant due to disability-related sick leave in 2020;

(2) took over line management responsibility and purposefully did not familiarise herself with the Claimant’s Occupational Health recommendations and stress risk assessment;

(3) failed to support the Claimant with pacing her excessive workload;

(4) refused to release line management responsibility of the Claimant to the Finance Manager or another supportive manager at an appropriate level of seniority; and

(5) initiated first stage formal absence management procedures without considering the impact of lack of reasonable adjustments on the Claimant’s sickness levels. The Claimant reasonably believes the above conduct was related to her disability and motivated by Ms Anerville’s desire to remove the Claimant from her position due to her having a long term, chronic condition requiring sickness absence. 2. If such conduct is proven, was it related to disability? 3. If the alleged events occurred, did the conduct have the purpose or effect (taking into account the Claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect) of: a) violating the Claimant’s dignity; or b) creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant? VICTIMISATION S27 EQUALITY ACT 2010 1. What is the protected act relied on? As per paragraphs 14-16 of the Claimant’s Particulars of Claim, the Claimant filed a grievance on or around 2 June 2020 challenging the downgrading of her performance due to her disabilityrelated sickness absence as discrimination under the Equality Act 2010. The decision to downgrade her performance was taken by Amanda Anerville, Strategic Finance Manager, and Anita Stokes, Lead Strategic Finance Manager. 2. Did the Respondent subject the Claimant to the following detriments for doing that protected act: Since the filing of the grievance and having it upheld, the Claimant reasonably believes she was targeted for worse treatment by Ms Anerville. Specifically, the following conduct of Ms Anerville amounts to a detriment: (2) taking over line management responsibility and purposefully declining to familiarise herself with the Claimant’s Occupational Health recommendations and stress risk assessment; (3) failing to support the Claimant with pacing her excessive workload; (4) refusing to release line management responsibility of the Claimant to the Finance Manager or another supportive manager at an appropriate level of seniority; and (5) initiating first stage formal absence management procedures without considering the impact of lack of reasonable adjustments on the Claimant’s

The law

[21]The definition of disability is found in the Equality Act 2010. This is a physical or mental impairment which has a long term, substantial adverse effect on someone’s ability to carry out normal day to day activities.

[22]The Respondent accepts Claimant is disabled by way of her Fibromyalagia. Direct discrimination This claim appears at s13 of the Act.

[24]The tribunal must find that the Claimant has suffered less favourable treatment and that the reason for the treatment was disability.

[25]In order to find less favourable treatment, we must compare the Claimant to a comparator. This can be a real or hypothetical person. They must share the same circumstances as Claimant, but not have the protected characteristic.

[26]In this case, Claimant relies upon a hypothetical comparator. They say that this is someone who doesn’t have Fibromyalgia.

[27]In order to show that the reason for the treatment was disability, the Claimant could rely upon actual evidence- for example a comment made or an email saying that that was the reason the Claimant was being treated this way.

[28]In the absence of such express evidence, the tribunal allows a Claimant to succeed if they can show a “prima facie” case of discrimination. That would be evidence of examples of discriminatory treatment or conduct, upon which, in the absence of any non-discriminatory reason, the tribunal could make a finding that the reason for the treatment was disability.

[29]If the Claimant establishes that prima facie case, then the burden of proof switches to Respondent to show a non-discriminatory reason. If they cannot do this, the claim will succeed. Unfavourable treatment because of something arising in consequence of This claim appears at s.15 of the Act.

[31]In this case, the Claimant only needs to show unfavourable treatment. There is no need for a comparator.

[32]The Claimant must then show that the reason for the unfavourable treatment was something that arose in consequence of the Claimant’s disability, rather than the disability itself.

[33]If this is found, the Respondent can still defend the claim if it can show the treatment was a proportionate means of achieving a legitimate aim. This is found at s.19 of the Act.

[35]The tribunal must first find that there was a provision, criterion or practice (PCP). That is some rule or policy or practice of the Respondent that was applied to all staff but which placed Claimant at a particular disadvantage compared to people without disabilities.

[36]If the Claimant suffers that disadvantage, there is a basis for a claim.

[37]The Respondent must then show that the application of the PCP was a Failure to make reasonable adjustments

[38]This is very similar to the above claim and is found at s.20 and 21 of the Act.

[39]Again a PCP must first be established. The Claimant must then show it suffered “substantial” disadvantage compared to non-disabled persons.

[40]If the duty arises, then the Respondent must take such steps as it is reasonable to have to take to avoid the disadvantage.

[41]The Respondent must have knowledge of the disability and the disadvantage for the duty to arise. Victimisation

[42]Section 27 states that victimisation occurs if the employee does a protected act and then is subjected to detriments because of that.

[43]A protected act is defined as either making a complaint about discriminatory treatment, or being a witness in such a complaint.

[44]The tribunal must firstly find that there was a protected act and the detriments occurred. If these are proven, they must then find that there was a causal link between the two for the claim to succeed.

[45]An employee who has been employed for over 2 years must not be unfairly dismissed.

[46]A dismissal will be unfair if it is not for a fair reason, or if the fair reason wasn’t fairly applied.

[47]An employee who has resigned instead of being dismissed can also pursue a claim for Unfair Dismissal. However, they must first show that the resignation amounted to a dismissal.

[48]They can do this if they show they resigned in response to a fundamental breach of the contract by Respondent. They must show the breach was a repudiatory breach, that they resigned in response to that and that they did not affirm the contract or acquiesce to that breach.

[49]In this case, the Claimant is not relying upon a breach of an express clause, but the implied clause of trust and confidence.

[50]In Courtaulds Northern Textiles Ltd v Andrew

1979 IRLR 84

, EAT, the EAT held that it was a fundamental breach of contract for the employer, without reasonable and proper cause, to conduct itself in a manner ‘calculated or likely to destroy or seriously damage the relationship of confidence and trust between the parties’.

[51]In Woods v WM Car Services (Peterborough) Ltd

1981 ICR 666

, EAT. Mr Justice Browne-Wilkinson stated: “To constitute a breach of this implied term it is not necessary to show that the employer intended any repudiation of the contract: the tribunal’s function is to look at the employer’s conduct as a whole and determine whether it is such that its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it.”

[52]The Claimant says the Respondent’s conduct over a period of time amounted to that breach. In order to succeed, the Claimant must show that the separate incidents that occurred amounted to a course of conduct and there was a last straw and that they resigned in response to that.

[53]If that is proven, then the Claimant will have been constructively dismissed. The tribunal can then consider if the reason for the dismissal was a fair one that was fairly applied. Time limits

[54]The time limit for a disability discrimination claim is 3 months less one day from the date of the incident complained of.

[55]If a claim is out of time, that time limit may be extended if it is considered that the incident forms part of a continuing sequence of events. If the last event in that series is in time, it would bring the previous incidents in time too.

[56]If the claims are out of time, the tribunal has discretion to extend the time limit if it feels it is just and equitable to do so.

Findings of fact

[1]We make the following findings of fact on the issues. Lots of points were in dispute but we have only made findings on those that were pertinent to the issues and claims.

[2]Claimant began working for Respondent from 15th May 2021. She resigned with effect from 21st August 2022.

[3]Claimant was employed in the Respondent finance department.

[4]The Claimant’s role was Finance Officer and she reported up to the Finance Manager.

[5]Line manager was Mr Suresh from start until around Dec 2018. Poonam Gagda took over from this point. Poonam Gagda report to Amit Mehta. Mr Mehta reported to Ashley Hughes (strategic finance manager). This was until May 2020 when Amanda Anerville took over from Mr Hughes to became Strategic Finance Manager.

[6]In summer of 2018, Claimant was diagnosed with Fibro. Poonam Gagda was the Claimant’s line manager at that point. There was an OH report requested by Poonam Gagda that is dated 4th Oct 2018 (page 109). The OH referral is made because of the Fibro and “continued back problems”.

[7]The recommendations of that report werea. A Stress Risk assessment

b. The Claimant to be able to pace her workload

c. A chair and adjustable desk for her back problems

d. Homeworking on a regular basis and avoiding busy commuter times.

[8]One of the OH recommendations from the Oct 2018 OH report was that the Claimant would be allowed to work from home. She was allowed to work from home twice a week. Claimant however started to work from home full time from around May 2019, even though this was not an OH recommendation. We note that this was not a requirement of an OH report but the Respondent had no objection to accommodating Claimant. This in our opinion gives some indication as to how accommodating Respondent was and makes it less likely they would be unwilling to make adjustments.

[9]A copy of the Claimant’s attendance record is in the bundle at page 107. It shows absences in 2017 and 2018. In 2018, the Claimant had 9 absences between March and September. Most were for 1 or 2 days, apart from 2 longer absences of between 10-12 days.

[10]We note that under the Respondent’s Managing Attendance Policy, the Claimant would have hit the trigger for stage 1, in that she had had more than 6 days absence in a 12 month period, however the Respondent did not move to stage 1. This was, in our opinion, evidence of the Respondent treating the Claimant favourably and choosing to exercise their discretion to the Claimant’s benefit.

[11]We also note that the Claimant did not meet the definition of being on “long term sick” according to the Respondent policy.

[12]Poonam Gagda requests a further OH report in May 2019, however it appears from reading this that the purpose of obtaining that was to get some new IT equipment for the Claimant (page 112). Poonam Gagda confirmed in witness evidence that it was so the Claimant could obtain a laptop to work from home so she wouldn’t have to carry her own with her from work. This again shows the Respondent in a supportive light.

[13]We see the period of absences extending into 2019 in the attachment to that report (page 113). The Claimant has had 3 absences in 2019. 1 of 1 day, 1 of 2 days and 1 of 8 days. The latter 2 were because of “Stomach and Bowel” so not recorded as time off for the Claimant’s disability.

[14]The Claimant raised an issue about the lack of return-to-work meetings in this period. We note that this was not a live issue in the claim. The Respondent had not provided records of any meetings having taken place in 2018 or 2019, but we do not accept that that means they did not take place. Poonam Gagda’s oral evidence was that they did take place for longer absences but not the 1- or 2-day absences. She also said that during that period, Claimant was having regular 1-2-1s with Poonam Gagda. Poonam Gagda said that these were to discuss work but also how Claimant was coping with conditions and adjustments that she needed.

[15]We accepted Poonam Gagda’s evidence on this and do not accept that there was a failure to have return to work meetings with Claimant or that the Claimant was disadvantaged. We note that there is no evidence that Claimant raised this as an issue at the time with Poonam Gagda so we conclude that Claimant was satisfied with the number of return to work meetings she had and the 1-2-1 meetings with Poonam Gagda were sufficient to ensure that she felt that the Respondent was aware of her needs because of her condition.

[16]A further OH referral is made by Poonam Gagda in Nov 2019. In the referral (page 115), Poonam Gagda says that the absences have been continuing, despite the previous report’s recommendations having been followed. It is noted that Claimant had 40 days off over the last 12 months across 10 instances. Again we note that Respondent does not move to stage 1 despite the triggers having been met.

[17]Looking at the sickness record (page 116), there are 4 more absences after the last record but none of these are recorded as for Fibromyalgia or could be interpreted as being for Fibromyalgia.

[18]That report isn’t shared with Poonam Gagda until March 2020 (117). At first the Claimant withholds consent and then there is a delay from the OH.

[19]The recommendations of that report (122) say that the Claimant should be afforded the option of working from home. If she has more than 5 days off there should be a phased return. They also suggest changing the Claimant’s working hours so she can avoid travelling in rush hour.

[20]We note that, as set out above, the Claimant had been working from home full time since May 2019.

[21]The first report in 2018 suggested a stress risk assessment which we note we have not seen evidence of. However, we also note that this updated OH report makes no mention of one and does not suggest that one still needs to be done. In the absence of an ongoing recommendation of a SRA, we do not accept that the Respondent had an ongoing burden to carry one out.

[22]We also note that the Claimant does not provide evidence of her pushing for the Respondent to carry one out or complaining one hadn’t been done. Downgrading the appraisal

[23]The Claimant received a performance appraisal in February 2020. Had this been positive, the Claimant would receive an increase in pay and a bonus. Poonam Gagda had recorded that the Claimant had met all her targets, but this is downgraded to “partly meets target” upon moderation. The reason for the downgrading is that the Claimant had had some absences.

[24]Having looked at the Claimant’s absence report we were not satisfied that these absences were because of her Fibro. The most recent absences towards the end of 2019 are for “Chest/Bronchitis” and “muscular/skeletal”. We gave the Claimant the benefit of the doubt and determined that the “muscular/skeletal” absences could be potentially for her Fibro.

[25]We find that this was done by Ms Anita Stokes together with the other Lead Strategic Finance Manager, Ashley Hughes. Not, by Amanda Anerville.

[26]There is an email from Poonam Gagda on 7th May 2020 (128) which Claimant says the “ratings were reviewed by Anita and Ashley/Amanda”

[27]Amanda Anerville also writes on the 12th May (129) to discuss the appraisal and says “we have used this process”. Amanda Anerville said that when she meant “we” she meant was the organisation.

[28]We also note that the Claimant was only one of 3 employees who were downgraded. This makes it less likely that the Claimant was being singled out or targeted by Ms Anerville. The Claimant hasn’t suggested that Ms Anerville also had issues with those 2 employees.

[29]We accept that the Claimant submitted a complaint about this on 11th May 2020 (page 129). We accept the Claimant made a complaint of disability discrimination in this. The other 2 employees raised complaints too.

[30]The Claimant received a response on 12th May 2020 (page 129) from Amanda Anerville and Anita Stokes. At this point, in May 2020, Amanda Anerville had been promoted so it was her responsibility to respond to the Claimant, although we accept that she had not been involved in the original decision to downgrade the Claimant.

[31]Amanda Anerville replied to reject the Claimant’s complaint in the first instance. The Claimant was told that there was no right of appeal against the moderation. The Claimant then submitted a grievance in June 2020 (134). The Claimant claimed that the downgrading was an act of disability discrimination. As a result of the grievance, the downgrading was overturned by Taryn Eves (Director of Financial Management) (page 152)

[32]The Claimant therefore received an uplift in pay and this was backdated to the date of the original decision so that the Claimant did not suffer a financial loss. The Claimant also received a bonus.

[33]We make a finding of fact that Amanda Anerville was not the person who originally made the decision to downgrade Claimant’s appraisal. Additional workload.

[34]The Claimant complains that she was asked to take on additional work and that she was not given support by Respondent by having other work reallocated or re-prioritized. In submissions, the Claimant confirmed the additional tasks werea. The Business Interruption Fund (BIF) b. The Covid Winter Grant Scheme (CWGS) c. The ARG d. And the Claimant also added that the Diversity and inclusion work was part of her workload during the hearing.

[35]We see evidence of the Claimant already doing the Business Interruption Fund work in July 2020 (138) when she is asked to take on a new project. However, we note that Poonam Gagda says that the BIF work is slowing down at that point. The Claimant accepted in her evidence that this work ceased towards the end of 2020.

[36]Poonam Gagda asks the Claimant to take on the new project but after the Claimant says she does not have capacity, Poonam Gagda agrees that she does not have to do it. This, in our opinion, painted a different picture of the Respondent than the Claimant presented. It was clear to us that the Respondent was willing to take on board comments the Claimant had about capacity and was not seeking to overload her with work (page 140).

[37]The Claimant sent an email to Poonam Gagda on 15th July 2020 (141) in which she lists all the work that she is already doing. In her reply, Poonam Gagda says that the tasks the Claimant has listed are her normal day-today tasks, not additional duties and the only additional work she is doing is the BIF.

[38]We also note from the Claimant’s email that she doesn’t complain that her current workload (that includes the BIF) is too much or that she needs support from Poonam Gagda to manage it at that point.

[39]In November 2020, Amanda Anerville asks the Claimant if she would consider taking on another project, the CWGS (166).

[40]There is reference in that email of the Claimant having done the Inclusion and Diversity “piece” at a recent management meeting. Although we question whether this would be sufficient to considered to be an additional project, rather than a 1 off piece of work, we also note there are no communications from the Claimant from before this date where she complains that having to do that Inclusion and Diversity work was too much for her or that she was overloaded. We therefore do not consider that this amounts to additional work for the Claimant or duties that would have overloaded the Claimant.

[41]Amanda Anerville sends more information on the 25th November 2020 (page 168) and says that if the Claimant has any questions, she can contact her. She repeats this offer on 11th December 2020.

[42]On 11th Jan 2021, Amanda Anerville emails the Claimant (177) to discuss another project, the Covid Additional Restrictions Grant (ARG). Amanda Anerville expresses how important this work is. She says that she feels Claimant has capacity to cope with it after reviewing the other work Claimant is currently doing as it will only take up a couple of days each week.

[43]Amanda Anerville says that the ARG is a “key priority” and that if Claimant felt it would impact her other deadlines, Poonam Gagda or Amanda Anerville would talk to other managers, so the Claimant wasn’t put under pressure. The email says that “The aim is not for you to be given additional work on top of what you are doing now, but this will be a shift in priorities for a short period”.

[44]Our view was that the Claimant wasn’t being given additional work or being overloaded. It was clear that this was important for the Respondent and that they were supporting the Claimant to be able to do this work by ensuring she didn’t have to focus on other tasks at the same time. Amanda Anerville email also makes it clear that this is a short-term project for 2-3 weeks.

[45]A meeting does take place on the 13th January 2021 (page 180) and Claimant confirms that she is happy to support over the next 2-3 weeks. Amanda Anerville replied the next day to say the task has gotten bigger and will require Claimant to spend 5 days per week on the task. However, it is not suggested that it is going to last for more than the original estimate of 2-3 weeks.

[46]Claimant replies on 19th January 2021 (179) to says she feels she would be taking took much on if she did the ARG work. She again lists her current work, which includes the CWGS but not the BIF, supporting the position that that work had ceased by this point.

[47]The Claimant says that “I don’t think it will be practical for a colleague to take on any of these above tasks on as I am already in the middle of them and all and it will take time to train them”.

[48]This would suggest that the Respondent was going to redistribute the Claimant’s other work, but the Claimant did not want this to happen.

[49]Amanda Anerville replies on the 19th (178) to say that the ARG work takes precedence over all the Claimant’s other tasks and they can be reprioritised so that their deadlines are revised. This would allow the Claimant to focus on the short term ARG project and give it her undivided attention. This is contrary to the Claimant’s argument that was being overloaded or not given support.

[50]There is a further supportive email at page 185 of the bundle from 20th Jan 2021 where Amanda Anerville contacts another manager who was involved in overseeing the ARG work and confirms she has given the Claimant reassurances about her other deadlines and priorities being managed but that it would also help the Claimant if she was told how long the ARG would last. Having this information would reassure the Claimant that the work was short term and give her an idea as to how long her other deadlines need to be pushed back for.

[51]The Claimant had a period of sick leave between 28th Jan and 4th Feb 2021. The return-to-work form is at page 192 of the bundle and took place on the 8th Feb. The reason for absence is the Claimant’s Fibromyalgia.

[52]When asked if the Claimant thinks something at work caused the absence, the Claimant and Poonam Gagda discuss her current workload. The Claimant says the ARG and CWGS have conflicting deadlines in addition to her day to day tasks.

[53]Poonam Gagda and the Claimant agree that the Claimant will only spend one day per week on the ARG (as opposed to all week as previously suggested by Amanda Anerville). In respect of CWGS, it is agreed that the Commissioning Team will be given clear deadlines and given the onus to complete information themselves.

[54]In relation to day-to-day work, Claimant is to continue to do this, but is offered support from her colleague, Tim. If this does not help, Poonam Gagda can go back to the service about the Claimant’s availability. This suggested to the ET that the Respondent was supporting the Claimant and ensuring that she was given capacity to focus on the projects.

[55]We also note that for the 12 months prior to this absence in Jan 2021, the Claimant has had no absences at all. Had the Claimant been overloaded with work so much that it affected her health, we would have expected this to manifest in her having to take time off work on sick leave, but it does not appear to be the case.

[56]In any event, by 19th February 2021, (page 186) it appears that Claimant didn’t actually do the initial work for the ARG project and so she is stood down. It is not accepted then that this was a task that the Claimant had to do or would have caused added to her workload.

[57]We see a copy of the Claimant’s annual appraisal and personal development plan, dated March 2021 at page 209 of the bundle. Several work matters are discussed, as well as Claimant’s health. At no stage in this does Claimant say that she is overloaded with work, not getting sufficient support from Respondent, or that her health is being negatively affected by work.

[58]On the 1st April 2021, Amanda Anerville emails the Claimant (page 190) to ask how she is getting on with the CWG work. In our view this showed Amanda Anerville was trying to ensure the Claimant had support to do this work.

[59]The Claimant goes off sick again for 2 days on the 19th and 20th May 2021. The return-to-work form (246) states the reason for the absence to be for Fibromyalgia. The Claimant does not say her absence was caused by work or being overloaded with work and not being supported.

[60]By this point, the Claimant has had 7 days off over 2 absences in the last 12 months. We again note that this would hit the Respondent’s trigger for stage 1 of their absence management process, but no action was taken.

[61]The Claimant has another absence between 6th September and 22nd September 2021. The return-to-work form (page 263) does not say that Claimant was off because of work related stress which was affecting her condition. The Claimant is at 20 days of absence over a 12-month period by this point. Poonam Gagda says that she has decided to take no further action because she views that the absence was related to a disability.

[62]The next relevant email is of 24th September 2021. The Claimant is asked to prioritise a different piece of urgent work regarding a charity (page 254). Poonam Gagda instructs the Claimant to leave her other work until next week. We find that this supports the Respondent’s argument that they were ensuring that the Claimant had proper capacity to do her work and wasn’t overloaded by competing deadlines.

[63]The Claimant replies on the same day, page 262, to say she wants to help but doesn’t understand what is involved. She doesn’t say she can’t do the work because she has too much on.

[64]The Claimant is again off between 7th October and 22nd October 2021. In this return-to-work form, page 276, the Claimant says she thinks the absence was caused by work. However, the reason appears to be the Claimant was supposed to be on a phased returned in September but could not stick to that because of the urgent Charity work that needed to be completed. This caused the Claimant’s condition to flare up. The Claimant does not say that she is overloaded, only that this one specific task conflicted with her phased return. The Claimant is at 32 days absence in 12 months at that point but again the Respondent doesn’t move to stage 1 of their absence management process.

[65]Following the previous 2 absences, Poonam Gagda submits a further OH referral on behalf of Claimant on 25th October 2021. The reason isn’t because Respondent or Claimant think work has been affecting the Claimant’s condition, but to ensure that she is getting the proper support from Respondent for her condition when it flares up. This to us was evidence of a caring and understanding employer, looking to ensure they were properly supporting a disabled employee.

[66]The report was at page 480 of the bundle. The recommendations of the report area. A phased return

b. A stress risk assessment

c. Regular meetings to discuss the Claimant’ workload and areas of concerns. Change of Line Management and the Risk Assessments

[67]Towards the end of 2021, Ms Naina Bhudia becomes the Claimant’s line manager.

[68]Poonam Gagda had been seconded to a different team taking on a different type of work.

[69]In December 2021, Ms Bhudia completes a stress risk assessment for Claimant. In that (page 278), the proposed “Controls” (which we read as being actions to be taken) agreed area. Regular catch ups to discuss workload and deadlines

b. Flexibility to work from home when possible

c. Flexibility to work hours based on individual needs

d. Regular breaks

e. Support with tasks when deadlines are tight

f. Before additional work is given, make sure there is proper review of current work.

[70]We see an email of the 18th January 2022 at page 282 in which Claimant is asked about doing another task and whether she thinks she can meet the deadline. This would suggest that the latter 2 “controls” were being put in place. The Respondent was ensuring the Claimant was comfortable with her workload and seeking agreement before she is given additional duties. Taking annual leave

[71]Sometime in 2020, the Claimant was told that she should not use annual leave when going off on sick. It was not clear when this happened as the witnesses could not be precise. All agreed however that there was only a verbal conversation. There was no written correspondence to confirm.

[72]The Claimant alleges in her statement that Poonam Gagda told her on Amanda Anerville’s instruction that she was no longer allowed to use annual leave when going off on sick leave.

[73]Amanda Anerville says that she had a conversation with Claimant herself and told her in an informal manner that she should not be using annual leave when sick as it would be to her own detriment as it would use her annual leave up.

[74]In cross examination, the Claimant’s position was not consistent. At first she said that Poonam Gagda only told her the difference between the two leave types but then changed her answer to say that she was explicitly told not to use annual leave when sick. The Claimant however accepted that she never had a request for leave refused.

[75]In cross examination, Amanda Anerville was consistent and again said that she spoke to Claimant and that it was an informal conversation that lasted no more than a minute. Amanda Anerville said she felt it was irresponsible for her to allow Claimant to use annual leave when sick as it would potentially have left her with a position of not having holidays left when she needed them and that would be bad for her wellbeing. Poonam Gagda said that she also had conversations with Claimant about not using annual leave when she was off sick

[76]It wasn’t clear to us who actually made statement to the Claimant and it is likely that it was both Poonam Gagda and Amanda Anerville. However, we find that Claimant wasn’t given a formal instruction not to use annual leave, nor did she receive a reprimand for doing so. Instead, we find that she was just given advice about using up her leave on sickness absences. We felt that Ms Gagda and Ms Anerville’s evidence on this was more consistent than the Claimant’s and more likely to be true.

[77]Further, we found that this advice was for the Claimant’s benefit so that she didn’t waste her annual leave and not have to access when she needed it and therefore not be able to have proper rest breaks from work. Amanda Anerville’s Line Management of the Claimant.

[78]The Claimant was absence in February 2022. There is a sick note for 1 week, dated 2nd February 2022 (314)

[79]Around that time the Claimant applied for another role. She was successful but declined to accept it as it would have required her to sign a new contract and start a new probation period. We see evidence in the bundle that Amanda Anerville was supportive of the Claimant throughout that process. She backed her going for the role and when the Claimant decided not to take it, she was supportive of Claimant’s decision.

[80]We also note from the correspondence from the Claimant (page 317) on 10th February 2022, that the Claimant understood that the new role would come with additional responsibilities, and she welcomed that challenge. This is not how we would expect the Claimant to act if she was already overburdened with work and could not cope.

[81]Around that time, on the 11th Feb 2022, Claimant requests a RETURNTO-WORK MEETING meeting with Amanda Anerville as Ms Bhudia was not available. We heard evidence from the Respondent that Ms Bhudia was off sick around this period so not able to manage the Claimant properly. Amanda Anerville said that she believes she took over Claimant’s line manager in around mid-February 2022. We see nothing from the Claimant to say she was objecting to this at that time.

[82]One of the Claimant’s arguments is that Amanda Anerville “had it out for her” and that she didn’t like the Claimant. If that was how the Claimant felt, why would she request Amanda Anerville take over some line management duties such as having a return-to-work meeting with the Claimant? The Claimant has made a large issue over the fact that there were several strata of line management between her and Amanda Anerville but Amanda Anerville took over the Claimant’s line management.

[83]If it was the case that the Claimant felt Ms Anerville disliked her, would it not have been correct for the Claimant to request someone immediately above Ms Bhudia to take over the Claimant’s line management, rather than Amanda Anerville? The fact that the Claimant didn’t request someone else instead of Ms Anerville at this time leads us to find that the Claimant did not believe that Ms Anerville had a grudge against her at least at this time in 2022.

[84]That return-to-work meeting took place on the 11th February 2022 (page 323). Several issues are raised in that meeting; - The Claimant says that the Charity Accounts work has unrealistic deadlines. Amanda Anerville says that the Claimant should maintain contact with her in Ms Bhudia’s absence to make her aware of any pressure that the Claimant is under. - The Claimant says that she does not feel supported. Amanda Anerville says that she gives the Claimant her full support, although their view on how tasks should be managed may differ. - Amanda Anerville schedules weekly catch-ups.

[85]In relation to the regular catch ups, these were proposed both in the OH report and the Stress Risk Assessment as a way of supporting the Claimant. It is clear that these were offered to the Claimant. The Claimant confirmed in evidence that she declined to attend them as she didn’t think they were beneficial. The fact that the meetings did not take place and any issue arising from that cannot therefore be attributed to the Respondent.

[86]In relation to workloads, we note that the comment made by Claimant is in relation to the Charity Accounts work and not the 3 projects she had complained about in her claim. We also note that contrary to the position posited by the Claimant, Amanda Anerville gives the Claimant support. It is clear to us that the Claimant could have gone to Amanda Anerville to seek assistance or support if she felt her normal work was too much for her.

[87]We note that the Claimant has had 35 days off in the last 12 months. This is over the threshold trigger for a standard employee and also for a “long term sick” employee. The Claimant hasn’t been shown to have met that definition of “long term sick” at that stage however as her most recent absence is only 2 weeks and not the 28 days required by the Respondent policy.

[88]This time, Amanda Anerville decides to move to a stage 1 meeting. The Claimant has raised an issue about this and said that Respondent had effectively rushed to do this. We do not agree that the facts support this. It is clear that the Claimant had met the triggers several times in the past and the Respondent declined to move to a stage 1 and instead worked with the Claimant to help improve her performance.

[89]It is understandable that an employer would have a limit however and that after persistent absences they decide enough is enough and it is appropriate to move the formal process.

[90]We also note that in this immediate case, the Claimant has been given leniency as she has had 29 more days off than the policy allows. If the Respondent really was intending to push her through the process, with the view to eventually dismissing her, we consider they wouldn’t have left it this long and allowed her this many absences above the trigger level.

[91]The Claimant also complains that the Respondent moved to stage 1 before making consideration of adjustments. We do not agree this is the case. The last OH report before this was in November 2021. The adjustments in that were the stress risk assessment, regular meetings and a phased return and these had all implemented by now. The Claimant was still having absences, however.

[92]We see correspondence from Amanda Anerville and the Claimant in the intervening period about work. Nothing in these suggests that the Claimant says she was not coping with work or had asked for support in her workload from Amanda Anerville which was refused.

[93]The Claimant then requests a meeting with Amanda Anerville in March 2022. This takes place on the 11th March 2022 and the Claimant brings Jane Mary Newcome, a work colleague along. Ms Newcome is akin to a Wellbeing rep. The meeting is considered to be a wellbeing meeting.

[94]Following the meeting, the Claimant sends Amanda Anerville a summary of the points discussed (page 341). They were as follows - Considering reasonable adjustments - Stress risk assessment and OH recommendations to be implemented to reduce stress. - Phased return after being off sick, to be discussed on a weekly basis. - Support regarding workload - Support for cover when Claimant is off work - Continuous support - Poonam Gagda to become the Claimant’s line manager whilst waiting for a new Finance Manager to be recruited. Claimant’s health and wellbeing to be prioritised

[95]Whilst we accept that these were points raised by the Claimant in the meeting, it is not accepted that these were live issues. There is evidence to show that the Respondent was making adjustments for the Claimant, implementing phased returns when necessary and providing support for the Claimant either whilst the Claimant was on sick leave or at work.

[96]Amanda Anerville and Poonam Gagda provided oral evidence on the idea of support whilst the Claimant was off sick. They stated that this would not be possible to formally arrange as it was unlikely they would know exactly how long the Claimant would be absent for, and therefore how long or how much cover would be needed. If the Claimant was off short term, her immediate pressing work would be covered by colleagues but not her larger long-term tasks. We consider this to be fair and reasonable in the circumstances of the Respondent not being able to know how long the Claimant would be absent for.

[97]The Claimant is off again from 22nd March 2022. This time her sick note (page 345) says Neck Pain. It does not say this is related to Fibromyalgia.

[98]In March 2022, the Claimant chased up her request that Poonam Gagda take over as her line manager. We accept the reason the Respondent gives as to why this was not practicable. Poonam Gagda was working in a different team doing a different type of work that she had to learn. This, coupled with the fact that she was also line managing 4 other people would make it impractical to manage the Claimant as well.

[99]Also in March 2022, Amanda Anerville requests permission from the Claimant to view her latest OH report (page 348). One issue raised by the Claimant is that Amanda Anerville failed to make herself familiar with the Claimant’s OH reports and adjustments. We do not find that this is the case. Amanda Anerville only took over in February and even then, that was to be a temporary arrangement until the new manager can be appointed.

[100]In light of the uncertainty of how long Amanda Anerville would be manager for, we accept that she would not seek to look at the Claimant’s OH report immediately. Amanda Anerville gave evidence that she didn’t have access to the report as this would normally only be able to be viewable by the Claimant and her immediate line manager. This is usual for a lot of organisations, in order to protect the employee’s confidentiality.

[101]We see then that Amanda Anerville asks permission to view the OH report in March which we consider is reasonable and would contradict the position that the Claimant puts forward of Amanda Anerville choosing not to familiarise herself with the Claimant’s medical situation.

[102]Further we note that the adjustments the Claimant had been recommended from the last OH report in November 2021 were in place. As Amanda Anerville was taking no steps to change them or remove, we see no reasonable reason why it would be necessary for her to become familiar with the adjustments.

[103]Also in that email, Amanda Anerville confirmed to the Claimant that she would remain the Claimant’s manager (rejecting the request for Poonam Gagda to be the manager again) until a new line manager can appointed to the post. The Claimant would have been aware that Amanda Anerville being her manager was a temporary situation.

[104]Amanda Anerville emails on the 30th March 2022 (page 348) to request a discussion with the Claimant about continuing the adjustments she has in place, to complete a stress risk assessment and to discuss if there is anything else that the Claimant needs to support her, including discussing her workload.

[105]This again contradicts the Claimant’s argument that Amanda Anerville was not supportive of her and that adjustments weren’t being put in place. The Claimant rejects the offer of the meeting and just asks for an ordinary return-to-work meeting and then for a well being meeting at a later date.

[106]The Claimant has a return-to-work meeting on 1st April 2022 (page 361). In that meeting the Claimant raises that her stress triggers are wholly attributable to Amanda Anerville.

[107]We accept that the Claimant perceived Amanda Anerville as the source of her stress, but we do not accept that this perception is supported by the evidence presented to us. Aside from the Claimant’s verbal testimony, nothing we were presented with showed that Amanda Anerville was not supportive of Claimant or was causing her stress. In fact, the evidence presented the opposite to be true- that Amanda Anerville was supportive to the Claimant.

[108]Amanda Anerville proposes a wellbeing meeting on the 5th April 2022 to go through the issues and also complete a risk assessment. The Claimant wanted to be supported by “safe to speak out” rep who we assume is someone akin to Jane Mary Newcome. The meeting is rearranged due to the rep’s availability.

[109]Amanda Anerville also proposes some adjustments- weekly catch ups to review workloads and other arrangements and the Claimant to work to phased hours (and stick to those).

[110]The Claimant has had 41 days off in 12 months by that period.

[111]Also on 1st April 2022, Amanda Anerville sends the Claimant a link to Workplace Options who are able to provide confidential support to the Claimant (page 356). It was our finding that this again showed that Amanda Anerville was trying to help the Claimant.

[112]The Claimant replies on the 4th April 2022 (356) to say “Exploring EAP [employee assistance programmes] is not going to make much a difference if the stress trigger is not resolved. As I’ve mentioned, this stress is coming from you.”

[113]Also on the 1st April Amanda Anerville seeks advice from HR. It appears that the Claimant is refusing to engage with the absence management policy because she says it does not apply to staff who are managing long term health conditions.

[114]We note that this does not appear to be in line with the Respondent’s policies. There is a different trigger for those on long term absence, but the Claimant hasn’t met the requirement to be classed as long term absent at that point. Further, even though there is a different trigger, those employees are still subject to the procedure. There is no special category of treatment for those with a long term health conditions.

[115]There is a requirement for the Respondent to make adjustments for employees with disabilities, but this again does not mean that they cannot be subjected to the policy at all.

[116]In response to the Claimant’s comments in the 4th April 2022 email, Amanda Anerville emails HR to say that she believes the Claimant’s communication was unprofessional and not acceptable and that this mirrors the tone of Claimant’s verbal communications. It is clear then that the Claimant has an issue with Amanda Anerville. (page 352)

[117]Despite this, Amanda Anerville emails the Claimant on the 6th April (358) to ask her to set out which of the OH recommendations have not been implemented.

[118]The Claimant writes on the 6th April 2022 (364) to confirm she doesn’t want to have the catch up meetings as they are causing her stress and don’t think they were beneficial to her. We are not given a reason why they would cause the Claimant stress and can only see that they would be there to support the Claimant. The Claimant says, however, that she will provide Amanda Anerville with a weekly update. We say that this would be a reasonable alternative as the Claimant has the avenue to ensure that any issues are raised with Amanda Anerville regularly and as they happen.

[119]On 13th April 2022, the Claimant replies, presumably to Amanda Anerville’s email requesting information about what adjustments have not been made (page 367).

[120]The Claimant says that once she returned to work, she came back to a lot of queries. Some have been picked up by colleagues but some she has to do catch ups. Despite saying that she has to do some catch ups, we see that she is being given support by colleagues taking over some of her tasks when she is off sick. Her work hasn’t been completely left untouched during her absence. This is in line with what the Respondent told us- the short term work would be picked up by colleagues in the event of someone’s absence, but the long term projects were unlikely to be because it was not possible to determine the length of someone’s absence.

[121]The Claimant raises that she is getting constant emails from Amanda Anerville and teams messages which are putting her under unnecessary pressure. Despite the size of the bundle, we were not taken to emails or messages which would support this assertion by the Claimant.

[122]The Claimant again proposes that Amanda Anerville is causing her stress and asks for the newly recruited finance manager to take over line management of Claimant. The Respondent’s position was that the new manager wasn’t in post at that point and so could not take over at that point. We accepted this fact.

[123]The Claimant now finally raises an issue about the 3 covid projects. The Claimant says that her workload was too much and that she didn’t get the support of having her duties given to others. We note this appears to be the first time she raises this, and this was not raised by Claimant at the time. We also note that she only was juggling 2 projects at the same time for a short period and, even then, she failed to carry out the work for 1 of those which led to her being removed from that project. Lead up to Stage 1 meeting

[124]The Claimant goes off sick on 14th April 2022, so the proposed meeting does not end up taking place. The Claimant is signed for a month initially but then submits another sicknote extending to 13th June 2022 (372).

[125]On 13th June 2022, Amanda Anerville requests advice from HR as to the Claimant’s absence and the fact that a stage 1 meeting hasn’t taken place yet. We note that Amanda Anerville proposed one at the beginning of 2022, but this didn’t take place. Amanda Anerville says this was because of the Claimant’s intervening absences. We note also that the Claimant refused to engage in the process.

[126]By that point the Claimant has had 44 continuous days off since 14th April 2022. She had already had absences of 6 days, 8 days, 12 days and 13 days in the March, February, October and September before this most recent absence.

[127]The Tribunal found that if Amanda Anerville had intended to push for the stage 1 in order to get the Claimant out, she could have progressed this much earlier than June 2022, given the Claimant had hit the triggers before this point. The delay until June indicated to us that Amanda Anerville was trying to ensure that the Claimant was being managed properly and fairly.

[128]Amanda Anerville contacts the Claimant prior to the date of the sick note expiring to see if the Claimant is planning to return. The Claimant complains that Amanda Anerville contacted her about work whilst she was off sick. This is not the case, the communication here were to enquire if the Claimant was return-to-work meeting or not. This is an appropriate communication from an employer in the absence of an employee telling them if they were coming back or not.

[129]The Claimant replies on the 13th June 2022 to say the Dr has extended her sick leave. Amanda Anerville replies (376) to suggest a discussion to touch base. Again we feel this is reasonable given it is for the Claimant’s wellbeing. The Claimant replies on the 21st June 2022 to say she is stressed and can’t communicate at the moment.

[130]The Claimant received a stage 1 absent management meeting invite on 21st June. The meeting was to take place on 29th June 2022.

[131]We consider, in light of the circumstances, that Amanda Anerville’s action of proposing a stage 1 meeting was reasonable. The Claimant had had a significant number of absences up to that point which justified a stage 1 meeting.

[132]We note that the Respondent’s “Management of Absence” policy at page 74 of the bundle sets out that the trigger was 6 days in 12 months. Managers do have discretion not to move through the various stages of the process in “exceptional circumstances”.

[133]There is also a section on “long term absence”. That is classed by Respondent as a continuing absence of 28 calendar days or more. Claimant had met that definition by this point in June 2022.

[134]There is a longer trigger for that type of absence- 14 days. The Respondent policy also says “the Council will consider dismissing an employee on long-term sick leave only have it has made all reasonable and practicable attempts to support their return to work, including any reasonable adjustments if the employee has a disability”. It was clear to the tribunal that an employee on “long term absence” could still be taken through the absence management process and dismissed, if it was reasonable in the circumstances.

[135]The stages are 1- Formal, 2-Formal and 3-Dismissal Hearing. The policy states that after a stage 1 meeting, a review period will be agreed, which is normally 6 months. In that period, the employee’s absence will be monitored, and they should have no more than 3 days absence in that period. If they do, the normal process will be to move to stage 2.

[136]If their attendance improves, there will be no further action. We note there is nothing in the policy to suggest that the manager’s discretion does not apply to this part of the process as well, so that a manager can decide to allow more than 3 days of absence if there is good reason, before moving to stage 2.

[137]The Claimant had said that she should be exempt from this process because she had a long-term condition. This is not correct. Whilst the Respondent should take into account the fact that someone has a long term condition or disability, this does not mean that the employee is not subject to attendance management at all.

[138]The Claimant had already been given leeway by the Respondent, in that she had much more time off than the normal triggers allowed before they eventually moved to stage 1.

[139]Amanda Anerville had also been working with the Claimant to ensure that adjustments had been in place. However, as stated above, any discretion by an employer should be viewed in light of what is reasonable. The Claimant had had a significant number of absences over the last 12 months and had given no indication during this extended period of absence as to when she was going to return.

[140]The Claimant had also not been engaging with Amanda Anerville so as to give her an idea of what could be done to support her.

[141]Amanda Anerville said in the invite to the meeting that she would be making a new OH referral and hoped to discuss the outcome of the referral in the stage 1 meeting. We do not accept that Amanda Anerville was therefore intending to have that meeting without the OH report. We note that the timing is short (there was only a week between the referral and the meeting) but in the end that did not make a difference as the meeting was delayed until the OH report could be obtained.

[142]The Claimant does not confirm her attendance, so Amanda Anerville seeks advice from HR. She notes that the OH appointment is not until 18th July 2022 (387).

[143]The Claimant replied on the 28th June to say she hoped to return to work by the 16th July 2022, the end date of her latest sick note.

[144]Amanda Anerville replies on the same day to say that she notes the OH meeting isn’t until 18th July and although the Stage 1 meeting was arranged for the 29th, if the Claimant wants to reschedule it to a more convenient time, she can do so.

[145]We accept that Amanda Anerville does not proactively suggest the meeting is moved to accommodate the time of the OH appointment and how long it is likely to take to get the report, but as we say, this had no consequence given the meeting was rearranged.

[146]There is then discussions between Amanda Anerville and the Claimant’s union rep to discuss the timing of the meeting. The Claimant wants the meeting after the OH report. Amanda Anerville says that they can have the stage 1 meeting first and then a separate meeting to discuss the OH report.

[147]Although it would be preferable to have the OH report at the stage 1 meeting, it is the tribunal’s view that it is not always the case that it must be obtained first. It entirely depends on what the report might say and what information is required for the meeting. If the report is necessary to determine the length of absence or the reason for it, then it would be necessary. If the report is more forward looking however and focuses on adjustments for when the employee returns to work, it might not be used in a stage 1 meeting. Further, it may be the case that a stage 1 meeting outcome could be reviewed after the report has been received.

[148]The issue for this tribunal is that we don’t know what would have happened if the meeting had gone ahead without the report as that didn’t happen. The best we can do is guess, which is not sufficient for us to base a finding on.

[149]The key points we take however are that Amanda Anerville did initially propose to go ahead with the meeting before the OH report was received, but after the union rep objected she conceded to wait until after the report was received, which we say was reasonable. (page 395)

[150]The meeting was arranged for the 25th July 2022, a week after the OH meeting. The Claimant submitted a further sick note however to cover 14th July 2022 to 14th August 2022. The meeting of the 25th July 2022 is therefore cancelled.

[151]Amanda Anerville receives the OH report on 27th July 2022. Amanda Anerville sends an email about the proposed adjustments to Anita Stokes on that day (405).

[152]In relation to the suggestion of the case conference and mediation, Amanda Anerville agrees these would be useful and confirms she will discuss with HR.

[153]One other recommendation in the report is redeployment. Amanda Anerville seeks advice on this. This showed to the ET that Amanda Anerville was looking to try and accommodate the adjustments proposed for the Claimant. August 10th Meeting

[154]On the 9th August, the Claimant’s union rep says that Claimant will not be attending the meeting because she is too unwell but that she has given permission for the meeting to go ahead in her absence with the union rep attending instead.

[155]The meeting was rearranged to 10th August 2022, by which time Respondent did have the OH report. Someone from HR attended as well.

[156]Amanda Anerville’s notes are at page 409 of the bundle. The Claimant didn’t object to the accuracy of these notes at the time or since. We did not hear from her union rep to challenge Amanda Anerville’s notes. We therefore accepted them as an accurate representation of the meeting.

[157]Amanda Anerville and the union rep go through the Claimant’s OH report and recommendations. As stated, Amanda Anerville has been seen to be already trying to implement these.

[158]The issue of Claimant’s line management is also discussed, and it is confirmed that Zoe Waters will now be the Claimant’s line manager as she has been recruited to post.

[159]It is correct that the end of the meeting, it was confirmed by HR that Claimant’s attendance would be reviewed for the next 6 months and if Claimant had 3 more absences in next 6 months, they would move to stage 2.

[160]However, this was not in our opinion an expression that the Respondent would take any specific action if Claimant did trigger the next stage. As with stage 1, it was more likely than not that a discussion would take place and adjustments considered. There is nothing to suggest Respondent would not have done this or taken into account any reason for the Claimant’s absences before deciding the next step, given what is stated in their policy, and in light of how the Respondent has acted so far towards the Claimant.

[161]A proposed return to work was suggested for 15th August 2022. We note the Claimant does not object to this and in fact contacts the Respondent to confirm that she will be returning, albeit a day later on the 16th as she wanted to take a days’ leave. 16th August meeting

[162]The Claimant had a meeting with Amanda Anerville on the 16th August 2022.The Claimant says this wasn’t a return-to-work meeting as no formal return-to-work meeting form was filled in. We agree that this form wasn’t completed but do find that it was a return-to-work meeting. It is clear from Amanda Anerville’s email of the same day that she treated it as such and there was no contemporaneous showing that the Claimant did not consider it a return to work meeting.

[163]The tribunal was able to piece together what was discussed in that meeting using an email from Amanda Anerville to Zoe Waters on the 17th August 2022 ( 417) and some brief notes taken by Amanda Anerville on page 421.

[164]Amanda Anerville says that she would have filled in a return-towork meeting form after the meeting, and it is not unusual for that to be done a couple of days later. As noted below, the Claimant resigned before that could happen. We accepted Amanda Anerville’s evidence on this as it was credible and in line with the facts of the case.

[165]In that meeting, Amanda Anerville and the Claimant agreed adjustments to be put in place, these were as followsa. Claimant not to deal with the emails that had built up in her absence (over 1000) and only to focus on the last week.

b. Claimant to speak to her colleague who had been covering her work in her absence

c. Claimant to have a phased return of 10-2 over the next 2 weeks.

d. Claimant to be able to work flexibly across the day.

[166]The Claimant says that in the meeting there was no discussion of workload or of pacing of her work. This is in conflict with the evidence we saw in which Amanda Anerville says in her email that Claimant should only focus on last week’s emails instead of the 1000 she may have built up. The Claimant is also asked to speak to her colleague who had been covering her work in her absence.

[167]We do not accept that the Claimant would have known the workload she would be taking on when she returned so it would not have been necessary to discuss this with Amanda Anerville or discuss pacing. There is nothing to suggest this would not have been discussed with Amanda Anerville at a later stage.

[168]The Claimant then submits her notice on the 17th August 2022. In her resignation letter she says she wants to leave to “work towards fulling [her] personal and professional goals”.

[169]She does not state that Amanda Anerville, the treatment she has received or the meeting on the 16th were the reason for her leaving.

[170]Prior to the Claimant resigning, on the 16th August, Poonam Gagda receives a reference request from an agency for the Claimant. It is clear to the tribunal that the Claimant had been looking for another role before the 16th August and therefore do not accept that the meeting on that day was the last straw that pushed her to resign.

[171]We note in the resignation letter, the Claimant asks to curtail her notice and leave earlier, on the 22nd August. This would be 1 week rather than 4 weeks as required under her contract.

[172]The Respondent suggested that this also supported the idea that the Claimant left because she got a new job rather than because of the actions of Amanda Anerville, particularly in the meeting on the 16th August. It is our finding that that is more likely than not to be the case. There appears to be no other reasonable reason (and none proposed by Claimant) for her wanting to shorten her notice period by that much and leave so quickly. Coupled with the evidence about the reference requests leads us to find that a new job was the reason for Claimant leaving. Decision on claims

[173]With those findings of fact in mind, we make the following findings on the claims and issues. Direct discrimination

[174]For each of the issues listed, we have consider whether the alleged less favourable treatment occurred, whether it amounted to less favourable treatment (by comparing the Claimant’s treatment to that Claimant’s identified comparator) and, if so, whether the reason for the treatment was disability. Initiating the First Stage absence management.

[175]Whilst we agree that this happened, we do not find that this was less favourable treatment.

[176]The Respondent has a clear policy regarding when a stage 1 meeting will be held. There is nothing to suggest that the policy would not be applied to someone who had had absences but did not have Fibromyalgia. We therefore do not find that someone without a disability would not have been subjected to the policy and invited to a stage 1 meeting if their absences had met the trigger.

[177]Further, the Claimant had exceptions made for her before the meeting was initiated. We doubt the same leniency would have been applied to a comparator without a disability like the Claimant’s and so it is more likely than not that the Claimant has had more favourable treatment.

[178]This claim therefore fails at the first hurdle.

[179]We also do not find that the Claimant has proven that the reason for any alleged treatment was disability. The Claimant has not established, in our opinion, a prima facie case.

[180]The Claimant has said that the Respondent was not supportive of her and had not managed her sickness absence or adjustments. This was not what was found by the tribunal. The Respondent in our opinion was actually supportive of Claimant and in almost all circumstances worked with the Claimant to make adjustments for her. Stating they would move to stage 2 if the Claimant continued to take sick leave

[181]This is not entirely accepted by ET. The actual thing that happened was that at the end of the stage 1 meeting, the Claimant was told about the normal review period that would follow- that if she took 3 more absences in the next 6 months, she would move to stage 2.

[182]As with stage 1, this is a normal part of Respondent MAP. We therefore do not accept that there has been less favourable treatment. A hypothetical comparator, someone without the Claimant’s disability but who still had the same number of absences, would have been treated the same way as the Respondent was following its process.

[183]As above, we also do not find that the reason for this treatment was Claimant’s disability. This was the Respondent’s normal procedure and that is why the Claimant was subjected to the treatment. Failing to provide the Claimant’ consistent supportive line management and declining to hand over the Claimant’s line management from Strategic FM to FM or another supportive LM

[184]There are 2 parts of this allegation. Firstly “not providing supportive line management”. We do not agree that this occurred. Our finding is that the Claimant was provided with supportive line management throughout.

[185]The Claimant was regularly sent to OH and recommendations from the reports were implemented. The Claimant was also supported at other times when she said she wasn’t coping. She had stress risk assessments at various times and it was clear that her line managers were available to speak to her.

[186]That element of this claim therefore fails on factual grounds.

[187]The second element is about the period when Amanda Anerville was the Claimant’s line manager in 2022. The Claimant requested that Poonam Gagda become her line manager but the Respondent did not agree to this request.

[188]Although we accept that this occurred, we do not accept that this amounted to less favourable treatment. The Respondent gave an explanation why Poonam Gagda could not be the Claimant’s manager at that time- because she had moved to a different team and had other work to learn and other staff to manage. We do not accept that a person without Fibromyalgia would have been treated better than Claimant and given Poonam Gagda as a line manager.

[189]This complaint also fails. Failure to adequately cover the Claimant’s responsibilities whilst she was on sick leave.

[190]We do not agree that this happened. The Claimant had several periods of absence and we find no evidence that she was complaining that her work wasn’t being done.

[191]The Respondent said that when the Claimant had short absences, her larger tasks could not be redistributed although immediate queries were picked by other team members. We accepted Respondent’s evidence on this. We note that when the Claimant took a longer absence, towards the end of her employment, there appears to have been someone covering her work as she is told to liaise with them when she returns.

[192]We therefore find that this claim fails on the facts.

[193]Even if it were found that the Respondent did fail to ensure the Claimant’s work was adequately covered in her absence, given the reason given by the Respondent, we find that a hypothetical comparator would have been treated the same way. The Respondent could not arrange cover for larger tasks whenever someone was absent as they had no way of knowing how long they would be off for. We accepted the Respondent’s evidence on this and find that a comparator who was also off for an unquantified period of time would have also been given the same treatment as the Claimant.

[194]For each complaint we have considered whether there was a PCP which placed disabled persons at a particular disadvantage compared to those without a disability. If so, we have considered whether there was a The Respondent’s MAP and in particular that a Stage 1 meeting will be held after 6 days of absence in 12 months

[195]We accept that this was a PCP and that this would place disabled persons at a particular disadvantage. Disabled persons are more likely to be off sick and therefore will hit this trigger more often than non-disabled persons.

[196]However, we do not accept that the Claimant was placed at this particular disadvantage. The Claimant was not referred to a stage 1 after 6 days. The Claimant had many more absences before finally being referred to stage 1. She had 44 days off before being referred in June 2022.

[197]Further, even if it were found that the Claimant had suffered a disadvantage, we accept that the Respondent’s actions were a propionate means of achieving a legitimate aim.

[198]We accept that it was a legitimate aim to want to ensure adequate levels of employee attendance and also to obtain value for money for public funds.

[199]We accept that the Respondent acted proportionately. As stated, the Claimant was given much leeway before the stage 1 meeting was held and so the Respondent can be seen to trying to accommodate the Claimant’s disability.

[200]This claim therefore fails. The Respondent requirement not to take annual leave when off sick

[201]We do not accept this was a PCP. We do not accept that this was a policy of Respondent or that it was even an instruction to Claimant. She was told she shouldn’t be doing this, but she was not told there would be consequences if she tried to do it. The Claimant was never refused annual leave or had it rejected.

[202]As there is no PCP, this claim fails.

[203]Even if it were found to be a discriminatory PCP, we would find that the Respondent’s actions were a proportionate means of achieving a legitimate aim. We accept that it is a legitimate aim to ensure that leave is being used appropriately. It would be detrimental to employees if annual leave was used up on sickness absences as they would not have proper rest from work when needed. Further, using annual leave to mask sickness absences would potentially hide a problem that an employer needs to know about so they can support the employee. The Respondent’s expectation that employees take on extra projects in addition to their ordinary responsibilities without support in prioritising work, pacing workload or leniency in managing deadlines.

[204]We do not agree this happened and thus there is no PCP.

[205]As per our findings of fact, we find that the Claimant was given support in prioritising other work when asked to take on additional projects. There were several emails where Amanda Anerville or Poonam Gagda say they will liaise with other managers to ensure that the Claimant’s other deadlines are pushed back.

[206]In relation to pacing, the Claimant explained that what they meant was by this was the ability to do work at her own pace during the day. The tribunal found no evidence that the Respondent dictated to the Claimant what she did each hour of the day. She had autonomy over her own work, albeit she had to work to deadlines.

[207]We find that this claim therefore fails on the facts. The Respondent practice that employees catch up on work not done due to sick leave.

[208]We do not agree this happened. There was no evidence in our opinion that the Claimant was coming back after long absences to find her work had not been done and had to be caught up on.

[209]This claim therefore fails as this was not a PCP applied by the Respondent and the Claimant was not placed at a particular disadvantage. The Respondent’s practice of overloading employees with work.

[210]This claim was not put at all by Claimant to the Respondent. At no time in her evidence or in the documents or oral evidence did we hear anything to suggest that employees were given too much work and so much they could not complete it in their normal hours.

[211]We noted that although the Claimant is in regular communication with her employer and raises times when she cannot take on extra work, she does not complain about being overloaded. We also saw that the Respondent listened to the Claimant when she said she could not take on extra work, or reorganised her other work when she was asked to focus on particular projects.

[212]As such, we found that there was no PCP by the Respondent which placed her at a disadvantage.

[213]This claim also fails. Failure to make reasonable adjustments.

[214]For each claim, we have considered whether there is a PCP that places disabled persons at a substantial disadvantage. If there is, then we have considered whether the Respondent took steps to make reasonable adjustments to avoid the PCP causing that disadvantge.

[215]For each of these, we have already found these weren’t PCPs applied by the Respondent. The facts do not show that they happened. As such, each of the claims fail. Unfavourable treatment because of something arising in consequence of

[216]For these claims we need to consider if the alleged unfavourable treatment has occurred or not. If so, what is the “something arising in consequence of?” The Claimant has said that it was her sickness absence. We would then need to consider if the unfavourable treatment was because of the Claimant’s sickness absences.

[217]If it was, then we go on to consider whether the Respondent can defend their actions as being a proportionate means of achieving a legitimate aim. Downgrading the Claimant’s appraisal in 2020

[218]We find that this did occur and was unfavourable treatment.

[219]We also find that the reason for this was the Claimant’s sickness absence. Although it wasn’t clear from the sickness records, we have given the Claimant the benefit of the doubt that the absences were because of her disability. This claim succeeds in the first parts of the test.

[220]We however find that the Respondent’s actions were a

[221]The legitimate aim would be the fair application of the policy regarding appraisals. We find that that Respondent acted proportionately and fairly given that when the Claimant challenged the Respondent, they then overturned the decision. This was a proportionate and reasonable response to the Claimant’s complaint of unfairness.

[222]Even if we were to find that this was not a proportionate means of achieving a legitimate aim, we find that this claim occurred over 2 years before the ET1 was submitted and would therefore be out of time. We have considered below whether the time limit should be extended on just and equitable grounds. Being instructed not to take annual leave when sick

[223]We found that this was a suggestion given to Claimant and not an instruction. However, we accept that even a suggestion could be unfavourable treatment as the Claimant was clearly upset by the comment.

[224]We also agree that this was because of something that arose in consequence of the Claimant’s disability. The Claimant was using annual leave because she did not want to incur more sickness, because she was already doing so because of her disability.

[225]However, we find that the Respondent’s actions were a

[226]It is a legitimate aim to ensure that employees are using sick and annual leave properly. As stated above, misuse of them could lead to employees avoiding the MAP unfairly or masking absences that they might need support for. They will also miss out on their holidays and not have proper time to rest from work.

[227]The Respondent acted proportionately as the Claimant was only spoken to. She was not reprimanded and there was no consequence to the action such as a formal warning or other punishment.

[228]This claim therefore fails. Triggering the first stage absence management meeting.

[229]We accept that this would be considered to be unfavourable treatment and was because of the Claimant’s sickness absence which arose in consequence of the Claimant’s disability.

[230]However, the Respondent’s actions were a proportionate means of achieving a legitimate aim.

[231]The MAP and need to manage staff absences is a legitimate aim and it was applied proportionately. The Claimant was given leniency before the stage 1 meeting. She was also given support by way of regular meetings, OH reports, and adjustments being made.

[232]This claim fails. Declining to handover the Claimant’s line management.

[233]We do not accept that this alleged unfavourable treatment that was because of the Claimant’s absences.

[234]The Respondent gives an explanation as to why Amanda Anerville did not make Poonam Gagda Claimant’s line manger in May 2020. Poonam Gagda was in a different team doing different work and it was impracticable for Poonam Gagda to take over Claimant’s line management. The reason therefore for the alleged unfavourable treatment was not the Claimant’s disability or something arising in consequence of it, but because of Ms Gagda’s other commitments.

[235]This claim therefore fails. Harassment

[236]For each claim we have considered if the act occurred, if it amounted to unwanted conduct which had the purpose or effect of violating the Claimant’s dignity or creating an intimidating, degrading, humiliating, offensive or hostile environment and, if so, if the reason for the treatment was disability. Amanda Anerville conduct in downgrading the Claimant’s performance appraisal

[237]The Claimant alleges Amanda Anerville did this. However, we find that this was not the case. It was our finding of fact that Anita Stokes and Ashley Hughes who did this and so this claim fails on the facts. Amanda Anerville’s conduct in failing to familiarise herself with the Claimant’s OH recommendations and stress risk assessment when taking over the Claimant’s line management.

[238]We do not agree that this is the case. We saw that Amanda Anerville asked permission to view the Claimant’s OH report shortly after taking over line management of Claimant. There was a gap between her taking over and obtaining access to the report but this was reasonable given that Ms Anerville initially did not know how long she would be the Claimant’s manager for.

[239]In any event we do not consider this could be found to be unwanted conduct which had the purpose or effect of violating the Claimant’s dignity or creating an intimidating, degrading, humiliating, offensive or hostile environment. When considering unwanted we have to take into account the Claimant’s view but also the general circumstances of the case.

[240]In this case, we do not agree that Amanda Anerville not looking at Claimant’s OH report when she took over would amount to un unwanted conduct which had the purpose or effect of violating the Claimant’s dignity or creating an intimidating, degrading, humiliating, offensive or hostile environment. Amanda Anerville did not know how long she would be managing Claimant for, and she had no reason to look at the report as adjustments were in place and Claimant wasn’t complaining about them.

[241]This claim therefore fails. Failed to support the Claimant with pacing her excessive workload;

[242]We have found that this did not happen. In any event it could not reasonably be found to be unwanted conduct which had the purpose or effect of violating the Claimant’s dignity or creating an intimidating, degrading, humiliating, offensive or hostile environment. Refused to release line management responsibility of the Claimant to the Finance Manager or another supportive manager at an appropriate level of seniority.

[243]Again we do not accept this happened. Although Amanda Anerville did not accede to Claimant’s request to have Poonam Gagda as her line manager to express it as “refused to release line management” is an unreasonable way of describing what happened.

[244]Given there was a perfectly reasonable reason for not transferring line management back to Poonam Gagda, it cannot reasonably be considered to be unwanted conduct which had the purpose or effect of violating the Claimant’s dignity or creating an intimidating, degrading, humiliating, offensive or hostile environment.

[245]Further, the Claimant has not established that this was because of disability. This claim fails. Initiated first stage formal absence management procedures without considering the impact of lack of reasonable adjustments on the Claimant’s sickness levels.

[246]We do not agree this happened as put in the claim. The Respondent did consider reasonable adjustments before eventually moving to stage 1. They also considered adjustments and the OH report in the meeting and these were discussed at the follow up return-to-work meeting in August 2022.

[247]This could also not reasonable be considered to be harassment in all the circumstances. The Claimant only went to this stage after an extraordinary amount of time off on sick leave. Victimisation.

[248]In order for these claims to succeed, we must find there has been a protected act. The Respondent accepts that the Claimant’s grievance of the 2nd June 2020 was a protected act.

[249]We then need to consider if the alleged detriments were because of that protected act.

[250]For each of the detriments, Claimant points to Amanda Anerville as the antagonist and says that she was targeted for worse treatment by Amanda Anerville since submitting that grievance.

[251]Although Amanda Anerville is mentioned in the grievance as one of the moderators, we heard evidence from Respondent that Amanda Anerville was not involved in the moderation, which we accepted as true.

[252]In light of the fact that Amanda Anerville was not the correct subject of the complaint and we have no evidence that Amanda Anerville was in any way reprimanded following the grievance, we find no reason to believe she would hold a grudge against Claimant.

[253]We therefore do not accept any of the acts of detriment alleged were because Claimant had carried out the protected act.

[254]These claims therefore fail.

[255]The remaining claim is unfair dismissal. As stated above, we first need to consider if there has been a constructive dismissal. As stated above, the Claimant relies upon numerous incidents which she says breached the implied duty of trust and confidence.

[256]Going through each of the incidents firstly I say whether we accept they occurred or not, based on the findings of fact and whether they could amount to a breach.• In May 2020, the Claimant’s performance was downgraded due to sickness absence taken for fibromyalgia (para 14);- We agree this happened and could potentially amount to a breach.

• Throughout 2020 and 2021, Claimant was asked to take on three projects in addition to her daily responsibilities, without reduction of other responsibilities or support with pacing of workload as recommended by Occupational Health (para 17);- The Claimant willingly agreed to take on additional work and other work was reduced or re-prioritised. There was no evidence that she was not allowed to pace her work herself. We therefore do not agree this happened or that it was a breach of trust and confidence.

• At the end of 2020, Claimant was instructed by Respondent not to use annual leave when she became ill due to fibromyalgia (para 19);- Don’t agree she was “instructed” not to use annual leave. As per our finding of fact above, she was only told shouldn’t be doing so. We therefore don’t accept this is a breach of trust and confidence, particularly as the reason for the comment was for the Claimant’s benefit.

• At the end of 2021, Amanda Anervile began line managing the Claimant, and did not implement the adjustments listed above or familiarise herself with Occupational Health or the Respondent’s risk assessment recommendations (para 22); We accept that Amanda Anerville did take steps to implement adjustments and familiarise her self with the OH reports, so not find that this was a breach of trust and confidence. Amanda Anerville said she was familiar with the Claimant’s condition as manager of the department the Claimant was in. There was also no indication that Amanda Anerville tried to change adjustments or remove them or that Claimant suffered any detriment by Amanda Anerville not proactively familiarising herself with the adjustments or recommendations.

• From this time until early 2022, the Claimant was placed under a large, backlogged workload; she had to push for regular meetings with her line manager; she lacked support with meeting and pacing deadlines (para 22); We don’t agree that this happened. There was no back log of work given to the Claimant when she returned from sick leave. Further, as far as the evidence presented to us states, the Claimant was allowed to pace her own work and the Claimant herself refused meetings with Amanda Anerville. This would not amount to a breach therefore.

• In February 2022, the Claimant requested a wellbeing meeting with Ms Anervile and again requested the above reasonable adjustments and that the recommendations of Occupational Health be implemented (para 28); The meeting did take place, albeit in March 2022. This was only a month after the Claimant requested it, so we do not accept this would amount to a breach of trust and confidence. This is particularly the case given that the adjustments were already in place. The only adjustment that the Claimant requested and that was refused was the request that Poonam Gagda take over as line manager. As stated above, we found that there was a reasonable reason for the Respondent refusing that request and as such this refusal would not amount to a breach of trust and confidence.

• Despite this request, none of the requested adjustments were implemented (para 29); We do not accept this was the case, as set out above.

• In June 2022, the Claimant was invited to a First Stage Formal Meeting to discuss absence management by Ms Anervile (para 33); We accept this occurred but do not agree this was a breach of trust and confidence. The meeting was in accordance with the Respondent’s policy and only after the Claimant had a significant amount of time off. The Claimant had had leniency in the number of absences she was allowed before the trigger was considered to have been met. The Claimant had support from the Respondent to manage her attendance. We therefore do not consider this would be conduct likely or intended to destroy trust and confidence.

• Ms Anervile insisted on going forward with the meeting before receiving the results of the Claimant’s OH report and Claimant reasonably felt that Ms Anervile had already made up her mind not to implement any adjustments and to dismiss the Claimant (para 35); We do not agree that this occurred. Amanda Anerville did not insist to go forward with the meeting before receiving the OH report. Amanda Anerville first proposed the meeting before the report had been obtained, but an OH meeting had been scheduled. However, when Claimant’s union rep asked the meeting to be delayed until after the report had actually been obtained, Amanda Anerville agreed. We therefore do not find that Amanda Anerville insisted the meeting go ahead in the absence of the OH report or that her actions would amount to a breach of trust and confidence. We also found no evidence that Ms Anerville had made her mind up to not implement any adjustments. They had been in fact been made and further action was taken to agree these in the return to week meeting in August 2022. Further, there is no evidence that Ms Anerville had already made her mind up to dismiss the Claimant. In fact the opposite was true in that she wanted to work with the Claimant to enable her to return.

[257]The only breach we found to have potentially occurred was the downgrading of the appraisal. Even if we find that the August meeting was a potential breach we find that the incident in May 2020 was too far away to be considered to be part of the same sequence of events.

[258]We also find that the Claimant has affirmed the contract and acquiesced to the breach by continuing to work past the date when she complained about the downgrading of her appraisal. The decision was overturned and the Claimant seems to have accepted that by continuing to work and not raise any further complaints about it. The Claimant makes no other references to this afterwards and therefore does not appear to be a consistent issue of concern for the Claimant after that. The alleged last straw

[259]Even though the other breaches have failed, the Claimant could succeed if we were to find that the last incident was a repudiatory breach.

[260]The last incident relied upon by the Claimant is the meeting of the 16th August 2022. This was the meeting that Claimant says was not a return-to-work meeting that took place on the day before she resigned, after the Claimant’s return from her lengthy absence.

[261]The Claimant says this meeting was a breach of trust and confidence for a number of reasons.

[262]The Claimant says that in that meeting, Amanda Anerville said that she would remain her line manager and not the newly appointed FM, ZW. This is not true at all. The email of that day to ZW confirms that she is handing over management of the Claimant to her and the notes of the meeting taken by Amanda Anerville say the same. There is nothing to substantiate Claimant’s assertion that she was told that Amanda Anerville would remain her manager. This was also supported by the notes of the 10th August stage 1 meeting which Claimant has not disputed the accuracy of.

[263]The Claimant also says that Amanda Anerville did not discuss pacing work or a phased return. This is not accepted either. It is clear a phased return was discussed, based on the documents and Amanda Anerville’s evidence.

[264]In relation to pacing we do not accept that a failure to discuss this was a breach. There was no evidence that pacing of work (in that the Claimant not being allowed to set her own pace during each day) was an issue. In any event, we can see that Amanda Anerville tells Zoe Waters that one of the adjustments is that Claimant can work flexibly in the day. This would seem to support the Claimant having control over pacing.

[265]The Claimant alleges that she was assigned an excessive amount of workload with tight deadlines. This is not supported by the evidence. Instead the Claimant is told to only focus on emails from the last week, suggesting Amanda Anerville wasn’t overloading the Claimant at all.

[266]The Claimant says that her work had not been covered in her absence. Again this is not supported by the evidence. In fact it appears that the Claimant’s work has been covered as she is told to speak to a colleague about it.

[267]The Claimant says that these things were contrary to the OH report recommendations. We do not accept that this was the case. It is clear to the ET that adjustments were in place and the Claimant’s return to work was not in conflict with these.

[268]Of particular note is the Claimant’s resignation letter which makes no refence to any of the above being an issue or point of concern. If they were in breach of the OH recommendations, we would have expected the Claimant to raise this in the meeting or in writing.

[269]Further, we do not accept that the Claimant resigned in response to any alleged breach by Respondent. We accept, based on the facts that the Claimant resigned because she had a new job.

[270]On that basis, we do not find Claimant was constructively dismissed. As such, her Unfair Dismissal claim cannot succeed. Time limits

[271]As the only potential claim that we found was the downgrading of the appraisal, we have considered if that claim was in time or, if not, if time should be extended.

[272]As set out above, time could be extended if there are lots of incidents and the last one in the sequence is found to be in time. However, in this case, none of the complaints have succeeded, so there can be no continuous sequence of events proven.

[273]Further, we do not consider it is just and equitable to extend time. The incident happened 2 years before the claim was submitted and the Claimant dealt with it at the time. Her complaint was upheld and she took no action after that, suggesting she was satisfied with the outcome.

[274]We find that it would be unreasonable to extend the time limit in these circumstances. This claim therefore is unsuccessful.