Ms T Andrews v Commissioner of Police for the Metropolis: 2200482/2022

EMPLOYMENT TRIBUNALS

Case No 2200482/2022

Between

Ms T AndrewsClaimant

Commissioner of Police for the MetropolisRespondent

Before

Employment Judge Nash

Ms S Aly (instructed by counsel) for claimant

Mr P Linstead (instructed by counsel) for respondent

Date 3 October 2024

JUDGMENT

[1]The respondent discriminated against the claimant contrary to S15 Equality Act 2010 in respect of comments in email of 20 May 2021 (complaint number 11e) but not otherwise.

[2]The respondent indirectly discriminated against the claimant contrary to S19 Equality Act 2010 by requiring her to work in a communal room four days a week (complaint number 15b) but not otherwise.

[3]The respondent failed to comply with a duty to make reasonable adjustments pursuant to ss20 and 21 Equality Act 2010 by not permitting her husband to attend a meeting on 6 September 2021 (complaint number 21a) and requiring the claimant to work in a communal room four days a week (complaint number 15b) but not otherwise. 10.1 Judgment – no hearing - rule 60 February 2018 Case No: 2200482/2022

[4]The above acts of discrimination extended over a period pursuant to s123(1)(b) Equality Act 2010 and according all claims were brought within the statutory time limit.

REASONS

JUDGMENT having been sent to the parties and written reasons having been requested by the claimant in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:

The Hearing

[1]At this hearing, the Tribunal had sight of a main bundle to page 1822 together with a supplemental bundle. It also had sight of a bundle of medical notes containing more legible copies of some documents in the main bundle. There was a supplemental bundle up to page 283.

[2]The Tribunal heard from witnesses who all swore to written witness statements. The Claimant gave evidence on her own behalf. For the Respondent, the Tribunal heard froma. Ms P Kyriakoulea, a coroner’s office team leader and the Claimant’s line manager,

b. Mr Ryan a retired Detective Superintendent who was responsible for the coroners service provided by the Respondent in London

c. Ms K Joel a coroners service lead for police staff

d. Ms J Wailing an HR case manager contracted to the Respondent to assist line managers; and

e. Detective Chief Inspector Begg at the material time a manager of the Respondent’s coroners service and lead for coroners officers from September 2021. The Claims There were four claims before the Tribunal:-

The Claims

[1]Direct Discrimination in respect of disability - which was dismissed upon withdrawal on the first day

[2]Discrimination arising from disability under s.15 Equality Act 2010

The Claims

[3]Indirect disability discrimination under s.19 Equality Act 2010

[4]Failure to make reasonable adjustments under s.20 and s.21 Equality Act 2010. The Issues 4. The Tribunal had sight of an agreed list of issues which is attached to these reasons. Preliminary Issues

The Issues

[5]The Tribunal confirmed with the parties the ground rules established at the previous case management hearing. The Claimant had a break of about 10 minutes after every hour of giving evidence and a break of the same time after approximately every hour and a quarter when not giving evidence. The Claimant’s barrister helpfully reminded the Tribunal of the timings, and the Tribunal checked with the Claimant on a number of occasions as to timings and organization.

The Facts

[6]The Respondent, the Claimant’s employer, provides most of the staff to coroners courts in London under an unusual tripartite arrangement. The senior coroners provide the coronial function and run the individual area offices, or “jurisdictions”. The Respondent provides supervision and employs most of the staff working in coroners offices. The local authority - in this case Camden - provides the infrastructure, material, accommodation and IT together with some staff - usually agency.

[7]The Claimant was employed as a coroners officer. This role essentially assists HM coroners with investigating deaths. The description of the role was helpfully set out in documents in the bundle. It is a management grade role. Coroners officers confirm and certify deaths and carry out inquests if necessary, they may be involved in following up homicides, accidents, deaths in custody and routine medical referrals. The purpose of the role is to support the coroner in their duties, following directions, helping with investigations, and managing reported death cases. The role involves contact with the police, NHS, GPs, prison services, local authorities and bereaved families. The officers provide information about the coronial process, answer questions and explain statutory requirements. In practice the claimant’s role also involved answering the telephones and the door to the office.

[8]On 31 October 2019, the Claimant completed a pre-recruitment OH questionnaire. She did not refer to chronic fatigue syndrome, having not yet been diagnosed, but referred to depression and hyperthyroidism. The Claimant’s doctor signed this document and returned it to the Respondent.

[9]The Respondent did not provide any evidence that it did anything about this form. Ms Joel who was the hiring manager denied having been aware of it and her statement indicated that she had no knowledge of this form. The Tribunal accordingly concluded that this information was missed and no steps were taken. There was at least six months between the Claimant completing this form and her starting work. There were delays caused by the Claimant being on the “back up list” and her falling pregnant.

[10]The claimant sent a second completed OH questionnaire to the Respondent on 9 April 2020 referring to depression, to a diagnosis at age 22 in 2016. She referred to using talking therapies and medication. One of the symptoms was fatigue. She used coping strategies including pacing and rest. She had a higher than average sickness absence and thought that flexible working including working from home might be a good adjustment. She found communicating difficult and had problems with concentration.

[11]As part of the recruitment process all candidates were provided with details of the coroners officer job description, including the necessity to be on call overnight regularly. The description made it clear that this was a pressurised environment and the officer would be required to manage their own workload to tight deadlines and would need to be naturally resilient and good at prioritisation.

[12]The Claimant was offered a role in the inner North London region either at St Pancras or Poplar. She chose St Pancras because it was a better commute. There was no suggestion that there was any liaison between the Respondent and Claimant as to suitability of different regions or the taking into account of matters contained in the OH document.

[13]Prior to starting, the Claimant had a meeting on 12 November with her team line manager. She flagged up that she had now been diagnosed chronic fatigue syndrome or ME and would like in principle to be able to work from home towards the end of the week. There was a plan that she would be referred to OH.

[14]The Claimant started work on 16 November 2020. The office was understaffed and not up to its full head count of six coroners officers.

[15]When the Claimant started work on 16 November 2020 the country had recently gone into the second national Covid lockdown. This ended on 2 December and the country reverted to the three tier systems. The third national lockdown started on 6 January 2021 and a road map out of that lockdown started on 8 March 2021.

[16]In the view of the senior coroner at all material times, the service at St Pancras was graded “red”, that is not as expected. There were in the coroners view significant delays in releasing the deceased, inquests were being adjourned, staff were overwhelmed, and it was a service in crisis. The service was under even greater pressure due to the Covid pandemic, causing a higher death rate and grave logistical difficulties in managing the service during lockdown. For instance, jury inquests were entirely suspended.

[17]The St Pancras office was open from 8am, and the phone lines were open between 8am and 3.30pm. Between 8am and 10am the coroners were not sitting in court and were therefore available to liaise with coroner officers. This was also a busy period as many deaths occurred over night and were reported early in the morning.

[18]Telephone calls from the public only came through on the downstairs phones. Ms Kyriakoulea said that the phone was ringing off the hook during the time of the Claimant’s employment. There was a limited number of in person callers during lockdown, but that was expected to rise once the country came out of lockdown.

[19]For her first week at work the Claimant sat upstairs in a relatively quiet room near another coroners officer, a Ms Kovacova, a very experienced and very quick worker. After about one week the senior coroner had the Claimant moved downstairs to sit with the other coroner officers, in line with her usual practice and her preferences.

[20]The Claimant’s first line manager Mr Quinn was only in post for about two weeks of her employment and she discussed her disability with him. Nether made any reference to the recruitment OH questionnaire. Mr Quinn referred the Claimant again to OH by 25 November and she had a telephone conference with them on 9 December 2020. In this OH referral Mr Quinn stated the Claimant was in her training phase and therefore she was unlikely to be able to work from home. In any event, there was a need to access files and to work face to face. Generally the work was office based. However, with new IT the next year and the likely limits on public attendance for the foreseeable future he imagined the job would be very different in future and if the paper files were moved to the Cloud, homeworking was likely to be the norm.

[21]The Claimant explained that she had what she described as a “budget” of daily energy which needed careful management. Broadly speaking, her energy levels reduced during the week, and she had to be careful that she did not overexert herself. She was particularly prone to fatigue. If she did unduly exert herself she would suffer what she described a crash, that is she would become non-functional until she was able to recover. Further, she took twice as long to recover from infections such as colds or Covid as the norm.

[22]The Claimant was given a mentor, an experienced coronial officer. This mentor had a disability, and her hours had consequently been adjusted to start from 7.30 and finish early - to avoid rush hour travel.

[23]After about two weeks Mr Quinn left and Ms Kyriakoulea started acting up as the office manager. She understood that the Claimant was only sitting upstairs briefly during her training. The Claimant said that, whilst it was Mr Quinn’s idea that she worked upstairs, she had told him that it was very suitable because she had control of the environment such as lighting, there was less risk of Covid transmission, there were less distractions, and her brain would function better and this would suit her disabilities.

[24]It was clear to the Tribunal that in St Pancras there was no social distancing in any meaningful way despite Covid. In January 2021, all staff bar one went down simultaneously with Covid. This caused a crisis in the service. Documents were sent to the only person in the office who put them in a courier bag and send them to coroners at their home address, where the coroners signed by wet ink. The Tribunal accepted that these were desperate measures adopted in a desperate situation.

[25]The Tribunal heard that in other coroners offices there were staff who regularly worked from home a day or two a week. However the Respondent stated that this was not possible in St Pancras. The only home working possible in St Pancras at that time was a set aside admin day, perhaps every few weeks.

[26]We were told that the senior coroner insisted on paper files at St Pancras. Coroners gave instructions to their officers about actions that need to be taken, the coroners office obtained paper documents to put on the paper file. The files contained review dates when, for instance, evidence was to be taken to the coroners in person.

[27]At this time, the coronial serve used the IRIS case management system provided by LB Camden which the coroners officers populated. It was not in dispute this was a poor-quality system and was in the process of being replaced across all coroners offices. It did not work effectively outside the St Pancras building. Further, the case system was still paper based, which meant that information was copied onto IRIS, rather than IRIS containing the file itself.

[28]Inquests were going on at this time, some remote, some in the building and some hybrid. The coroners officers needed to be present at the least at the beginning of the inquest. The Respondent suggested that the role also involves mortuary visits but there was nothing about this in the witness statements and the Tribunal did not find this was a significant part of the coroner officer role.

[29]The Claimant having seen OH on 9 December, heard nothing from them. The Claimant’s evidence was that she asked Ms Kyriakoulea to chase the OH report. Ms Kyriakoulea said that although it was discussed between them, the Claimant did not ask her in terms to chase. Nevertheless, Ms Kyriakoulea spoke to Ms Joel who also had not seen the report. In effect, the Respondent failed to obtain the December OH report.

[30]The report was finally sent to the Claimant on 23 February 2021. OH sent the Claimant an email with the report asking for permission to release it to the Respondent. It was not possible to know when the OH report was drafted, save that it must have been between 9 December 2020 and 23 February 2021. The Claimant gave permission for the report to be released to the Respondent. The Respondent would not have had sight of the report until 28 February at the earliest.

[31]On 23 February Ms Kyriakoulea received a complaint from a coroner’s officer about insensitivity by the Claimant to a Muslim colleague’s religious views. This came out of a discussion about organ donations. Ms Kyriakoulea investigated and found that while there was no malicious intent from the Claimant, whose behaviour could be immature and unprofessional. No action was taken. The Claimant agreed that her disability was not linked to this behaviour. She said she had been diagnosed with autism and it might be linked to this. She was not relying on autism as a disability in her claim.

[32]On 25 February Ms Kyriakoulea held the Claimant’s three-month PDR, her probationary review. Ms Kyriakoulea scored the Claimant as three out of five, an adequate but not excellent rating. One of the actions arising was that the Claimant would organise a visit to West London coroner’s office to investigate the possibility of a transfer, because there was more working from home in that office.

[33]The Claimant’s CFS was discussed. The claimant told Ms Kyriakoulea that she was often in bed the entire weekend after being exhausted from work. Ms Kyriakoulea was very concerned. The Claimant said she was finding the commute and the work exhausting, she would prefer to work from home two days a week or go part time.

[34]It was recorded that that the Inner London office did not support home working and the senior coroner did not permit part time working or home working during the probationary year. Ms Kyriakoulea echoed this stating that at the early stage the Claimant needed to be on site to be trained.

[35]The Claimant said in her comments in the PDR that she accepted that working from home was impractical at that office. The best for her would be if she could take a day working from home without warning, as and when, but she was aware that that might currently not be possible. The Respondent’s staff policy in respect of working from home was that it was dependent on operational requirements. The Tribunal found that Ms Kyriakoulea did not see or engage or act upon the OH report in respect of the PDR.

[36]The Claimant carried on working full time on site. Ms Kyriakoulea then received an anonymous letter alleging that the Claimant was dishonest in receiving gifts from the public. At almost the same time the Claimant approached her very distressed saying she had found a £50 cheque addressed to her on her desk and believed that it was a “set up”. Ms Kyriakoulea agreed that the cheque was a malicious act. In the view of the Tribunal this set up must have required some internal knowledge.

[37]On 26 February 2021, a coroner’s office made a complaint about the Claimant and a local authority colleague accessing a high profile and sensitive death. The complaint was expressed in very strong and emotional language. An investigation revealed that the Claimant was acting on instructions in accessing this file, the rules surrounding this matter had been poorly communicated. Ms Kyriakoulea did not feel it fair to take action against the Claimant. This was a further indication that the St Pancras office environment was not as supportive to the Claimant as it might have been.

[38]In March 2021 CIVICA - the new IT system - started to be installed at St Pancras. CIVICA had to be made bespoke for each office and there were teething problems. After CIVICA was installed, referrals came in via CIVICA but a few still came in by post. Legacy cases were transferred to CIVICA. With the CIVIVA cases, the senior coroner required wet signatures on printed documents. The coroners officers continued to go to get the coroners to sign, for instance to authorise a GP to certificate the death and hence release the body. Further, the coroner officers continued to be in court to open inquests with the coroner.

[39]At the beginning of March Ms Kyriakoulea placed the Claimant for the first time on the on-call rota. This meant that the Claimant had the on-call phone overnight and had to answer calls during the night. The calls were unpredictable and resulted in sleep disruption. On call matters tended to be high profile or distressing, such as organ donations, possible homicides. The Tribunal was told that the on-call duties at St Pancras were less onerous than other offices. The on-call work was shared out equally between the coroners officers. They were permitted to swap their on-call weeks and were paid overtime.

[40]The Tribunal had sight of agreed records of the Claimant’s on call work. She was on call one week in four - due to short staffing. The Claimant was on call 1-7 March, 6- 11 April and 10-12 May. Ms Kyriakoulea made herself available to support the Claimant, although the Tribunal accepted that the Claimant would be wary of ringing her in the middle of the night.

[41]On 11 March 2021 Ms Kyriakoulea and the Claimant met and discussed the complaint about the Muslim colleague. Ms Kyriakoulea raised that staff and coroners were concerned that the Claimant had been seen playing games on her phone during the working day. The Claimant said that playing trivial easy games relaxed her and helped her to concentrate, that the games ran in the background and pinged updates. She told the Tribunal these pings did not distract her. The Claimant told the Tribunal that she thought this behaviour might be linked to autism but this was not raised at the time.

[42]Ms Kyriakoulea also passed on the complaint from the senior coroner that the Claimant had forgotten about a file and had to be chased up. The Claimant was not sure if her CFS was responsible for this error. Ms Kyriakoulea also said that her colleagues were unhappy that the Claimant was avoiding answering the door and phones. The Tribunal was satisfied this was a genuine complaint because the Claimant agreed that she was avoiding this, to reduce distractions. The claimant explained that some matters had slipped her mind and there were issues with her forgetting to do things and failing to follow instructions. She repeated that she would prefer to work two days at home. Ms Kyriakoulea said that if her performance improved and she was able to work more independently, things might change, but in any event the senior coroner remained very opposed to home working.

[43]By this point the St Pancras had lost most of its local authority admin staff and continued to be down one coroners officer.

[44]Ms Kyriakoulea and the Claimant met again on 19 March, including discussing case progression. To assist the Claimant Ms Kyriakoulea wrote notes on many if not all the Claimant’s files with steps and the order in which they need to be done. Ms Kyriakoulea said she did not think the Claimant lacked knowledge but had significant problems with forgetting things. There was reference to the Claimant using an excel spreadsheet to assist further. Ms Kyriakoulea expressed the hope that CIVICA would help the Claimant with her memory difficulties.

[45]By late March and beginning of April St Pancras was suffering from a severe backlog of incoming files. It was such that Ms Kyriakoulea said she took some files to the sister office in Poplar, which was very unpopular with them. Normally coroners officers needed to do at least one referral and in fact averaged taking one and a half a day. However, to deal with the backlog she allocated two new cases a day to all officers as a temporary measure. She said that she had to give all coroner officers two files without exception and she included the Claimant. In total the Claimant was allocated somewhere between 10 and 12 cases.

[46]The Claimant told Mr Kyriakoulea that she did not want to take on these referrals so quickly. Because of her CFS, she needed a lighter case load or more gradual build up. Loading a significant number of cases on her in a short time was disadvantageous. Ms Kyriakoulea stated that the Claimant must take two referrals because she had a lighter case load. She said she knew it was not ideal - but they had to clear the backlog. Every one of the coroners officers had good reasons why they could not take on extra referrals.

[47]The Claimant told the Tribunal that the St Pancras work situation was untenable. Simply there were not enough people to do all the work. At this time, the court was sitting about 3 or 4 times a week.

[48]In general the claimant thought very highly of her mentor. On 1 April, the Claimant’s mentor said that she and colleagues had noticed the Claimant had gone AWOL from her desk for periods of time, including when she was upstairs on the phone chatting. The claimant did not accept this was true. The mentor went on to say that she did not think the Claimant would be able to fulfil the role of coroners officers and that all the colleagues were constantly having to help her progress her cases.

[49]Ms Kovacova - the coroner officer who worked upstairs - complained that she was sometimes having to progress the Claimant’s cases, leading to mortuary managers saying they were not being kept informed. The Claimant admitted that she was struggling and having particular difficulties with communication.

[50]At a further meeting between Ms Kyriakoulea and the Claimant, Ms Kyriakoulea said that the Claimant might need to look at other jobs if she was not able to cope with the coronial role. She said that she could not treat the Claimant differently in respect of the referrals.

[51]On12 April 2021 the senior coroner raised an issue to Ms Kyriakoulea following an expression of concern by a mortuary where bodies had been decomposing - which also endangered organ donation. The senior coroner chased up Ms Kyriakoulea and told her to ensure the Claimant progressed the cases. It was said that the biggest piece of learning for the claimant was the urgency of organ donation calls and how this translated into the duties as a coroners officer. The senior coroner was concerned that the Claimant did not understand the necessity of her role with relation to the deaths. She stated that the claimant’s reports were completely inadequate, especially at this stage of training.

[52]On 14 April, the Claimant emailed Ms Kyriakoulea prior to the six-month PDR stating that the current working arrangements did not work with her CFS. She was struggling without being able to work from home and with the fixed 8am starts. The commuting was using up her energy. She found it draining to work in the main room. She could not concentrate. She said that the amount of work was too much for her. She said in terms that she was “crashing” and not coping. She asked to be allowed to work from home part time, for flexible starting hours, no on call duties, to be able to work in a quiet room, to be able to control how many extra referrals she took on, and transfer to an office where there was home working. She also asked for a second OH referral. She attached an ME leaflet setting out the common symptoms and guidance for employers. Neither the claimant or respondent at any time suggested contacting access to work to see if they might be able to assist, for instance with taxis to work or other suggestions and support.

[53]Ms Kyriakoulea found the Claimant’s email when she returned from annual leave on 19 April. Ms Kyriakoulea was still concerned about the lack of progress on the Claimant’s files. The Claimant was saying that she was struggling in taking on two files. Ms Kyriakoulea said the Claimant had only taken 9% of the new files whereas another worker had taken 18%. She said that she would arrange with the Claimant’s colleagues to cover for the Claimant to allow her to take one day a week working upstairs in the quiet office.

[54]On 19 April Ms Kyriakoulea told the Claimant that one of the reasons she could not work from home was that she lacked a sense of urgency or focus which would worsen out of the office. Ms Kyriakoulea told the Claimant that if she was struggling with concentration, she should ask her colleagues to cover for her in respect of the phone and the door so she could concentrate. However, the Tribunal’s view was this was unlikely to assist, considering the evidence of less than happy working relations, and the pressure on staff. Ms Kyriakoulea had told the Claimant that her colleagues were unhappy because she was not doing her share of dealing with callers.

[55]Ms Kyriakoulea and Ms Joel discussed matters on 20 April and agreed that the Claimant would be provided with a daily schedule of work and would be referred to OH referral. It was agreed that the Claimant was struggling with the office environment, and with the admin and was not coping with the on-call duties. Ms Kyriakoulea said she could not support a coroners officer taking on a smaller case load and not dealing with admin and not being on call because this was unfair on the others. Ms Kyriakoulea reported that the Claimant was keen on working in North London. It looked as if the probation would be extended.

[56]On 21 April, the senior coroner complained to Ms Kyriakoulea that a death report from the claimant stating the deceased had not been seen within 28 days was plainly inadequate. The Claimant’s evidence before the Tribunal was that she had in error sent this report to the coroner before it was finished. In her witness statement she said that CIVICA may have sent the report before it was ready. Ms Kyriakoulea said that CIVICA could not do this. The Claimant’s evidence as to why this happened was inconsistent and the Tribunals conclusion was that the Claimant was simply not coping with the requirements of the job.

[57]On 29 April 2021 Ms Kyriakoulea emailed the Claimant she asked if the Claimant wanted to be transferred to a different office and to let her know. The Claimant’s evidence was that by this time she was too ill to respond and did not do so. Ms Kyriakoulea provided the Claimant with a daily structure. This appeared to be a very helpful document which set out comprehensively what needed doing at every stage of the day and the alternatives. It gave the Tribunal real sense of the Claimant’s working day and duties. The Claimant agreed that this was a reasonable structure. However, she felt that it did not help her with how to manage interruptions or how to prioritise. Ms Kyriakoulea said that working from home was not viable as the Claimant needed mentoring and to be in the office to learn and focus. She confirmed the back log was now cleared so the Claimant could choose when to increase her case load but must take at least one referral a day. She must attend between 8am and 4pm, and her on call duties were essential.

[58]On 5 May the senior coroner told Ms Kyriakoulea that the Claimant had failed to inform her about a very significant development on an inquest which had happened two weeks previously. The result was the family had had to come to court unnecessarily. The Claimant accepted this was a serious error of judgment and told the Tribunal by this time she was very ill.

[59]On 6 May the senior coroner told the Claimant to see her, but the Claimant failed to do so and had to be chased. The Claimant said by this point the CFS had made it very difficult for her to concentrate and she was suffering with very bad memory problems.

[60]On 7 May there was a very detailed complaint to Ms Kyriakoulea from the colleague who had previously complained about the Muslim insensitivity. It set out concerns with the Claimant’s performance and conduct, she was forgetful, families were having to chase. The Claimant had told colleagues that she was going to leave the job once she had got her mortgage sorted. The colleague accused the Claimant of unprofessional conduct and making inappropriate comments within the office, of not respecting confidentiality, she referred to bodily decomposition and the burden on the other staff.

[61]On 11 May Ms Kyriakoulea emailed Ms Joel explaining there were further problems. The inadequate death report had been sent back to the Claimant on 20 April to investigate. On 10 May the Claimant had entered into the records a message from a next of kin giving information from the GP, that is third hand information about the death. Third hand information as to what the GP said was not acceptable, because the Claimant needed information directly from the GP. The Respondent’s case was that the Claimant had entered this information into the report without indicating that it was only third hand information. This was misleading.

[62]The Claimant admitted this was a significant error of judgment. The Claimant gave various explanations as to how this happened which is that she felt that the CIVICA system pushed it through automatically, or that she did not understand the CIVICA system, or that this was in fact her error. Because in her witness statement she said she deliberately sent the report to the coroner with the information, she Tribunal accepted this version of events.

[63]Ms Kyriakoulea was so concerned that she actively reprimanded the Claimant. Afterwards, the Claimant told her colleagues that her husband was a litigation solicitor and would “wipe the floor” with Ms Kyriakoulea who “would not know what hit her”. Ms Kyriakoulea reported this and stated, “this is sadly heading in one direction now and I am sure once she is marked down as not performing in her next PDR” there would be difficult times ahead. The Tribunal found that Ms Kyriakoulea had concluded the Claimant was likely to be terminated and there was a risk of an Employment Tribunal claim. The Claimant told the Tribunal that she was extremely ill at this time including suicidal ideation and she reported this to the GP. She did not tell the Respondent.

[64]On 13 May 2021 Ms Kyriakoulea and the Claimant again went through the Claimant’s files. That afternoon the Claimant told Ms Kyriakoulea that she was signed off sick with CFS for two weeks. She cleared her desk and took everything she owned home. The six-month PDR was postponed until her return. In fact the Claimant was never to return to the office.

[65]When Ms Kyriakoulea and her colleagues took over the Claimant’s files they discovered other errors. In a discussion between Ms Joel and Ms Kyriakoulea it was said the Claimant behaved like a 14- or 15-year-old and she was unlikely to pass her probation.

[66]On 20 May Ms Joel shared her concerns about the Claimant by email with her line manager Mr Ryan. Ms Joel stated that the Claimant has “gone sick, one of many occurrences the day before her probation PDR meeting using chronic fatigue syndrome as the reason”. She referred to the Claimant as, failing miserably in the role. She set out a lengthy and detailed log of performance issues. She stated what was most worrying was what had turned up in the Claimant’s absence. Ms Kyriakoulea reported that the Claimant had been hiding inactions, that she was not progressing matters, she did not understand that she was there for the next of kin, she had the smallest number of cases, could not cope, and was not following coronial directions. Ms Joel continued, “do we have to extend probation or can we fast track her out, she is a liability and damaging MPS reputation, she cannot be trusted to do any work”. The tribunal found that Ms Joel had reached a conclusion that she wanted to exit the Claimant.

[67]Mr Ryan replied on 21 May that there was more than enough to remove the Claimant as unsatisfactory. On 21 May Ms Granville offered support to Ms Kyriakoulea who she was concerned was unsupported.

[68]Ms Kyriakoulea then asked the Claimant to set up a meeting either at her home, the office or a neutral venue. The Claimant was extremely angry that the Respondent suggested coming to her home so they met at a local Costa. Neither Ms Kyriakoulea nor the Claimant suggested a virtual meeting.

[69]On 30 June HR advised Ms Kyriakoulea about holding what was described as a first case conference in respect of the Claimant. This was this was the first meeting under the Respondent’s sickness absence procedure which the Claimant had triggered. Ms Kyriakoulea invited the Claimant to this meeting on 11 July. There was some concern at the time the Claimant was not keeping up to date fit notes. On 12 July the first case conference occurred with Ms Whalin of HR, Ms Kyriakoulea and the Claimant by Teams video. The Claimant said she was unable to provide a return date. After the meeting and contrary to the Respondent’s procedure, the Respondent did not follow up. It did not provide her with notes. It did not give her, as would be expected under the procedure, an attendance warning setting out how she had triggered the first stage in the sickness absence and explaining how many more sick days might trigger the next stage.

[70]The Claimant contracted Covid on 14 July. On 5 August, the Respondent informed her that she had gone down to half pay. On 12 August, the Claimant went a further OH referral. From what the Claimant told OH, she was by this time extremely ill. She was unable to get out of bed very often. If she did, say, get to the supermarket, she would need several days in bed to recover. She was unable to do the role and said that a home working role with less urgent work would be more suitable.

[71]On 13 August Ms Kyriakoulea informed the Claimant that she was going to carry out the six-month PDR while the Claimant remained off sick. Although the witness statements were less than clear, the Tribunal found that Ms Kyriakoulea carried out the six-month PDR on the papers. The Claimant was scored a four in each category save one score of 5, the lowest score. The PDR referred to cases not being up to date, complaints including from families, that the claimant only wanted to take one case at time which was not possible, she was suffering from brain fog, she was not able to do on call, she had been playing games on her phone, and there were concerned about the misleading statement on the file. Ms Joel signed off saying that the Claimant had not achieved the required standard and despite adjustments having been carried out the role was unfortunately too demanding for her.

[72]On 17 August Ms Kyriakoulea emailed Mr Begg and Ms Joel saying that having spoken to Ms Joel she had downgraded the Claimant’s overall score from a 4 to a 5 due to the sickness record.

[73]On 19 August, the Claimant was invited to a six-month PDR for 2 September 2021, although this had already been carried out on the papers. The Respondent gave inconsistent explanations as to what this meeting was, it was described as an adverse probationary report meeting but described in the minutes as a six-month PDR. The Tribunal found that the Respondent was confused and had lost control of its own procedure.

[74]In practice this meeting functioned as a review of the six-month PDR. The Claimant was told that she could bring a union rep or a colleague. The Claimant replied on 30 August saying the union would not assist her and she did not want to involve her colleagues. So her husband would as a reasonable adjustment. She also set out thirtynine points about the review. Essentially she wanted to work from home part time, she did not want to do the on-call rota, she was finding answering phones very stressful and she referred to taking time to work up to a full case load. The reasonable adjustments sought were limited home working, flexible working, a slower work to a full case load. She stated that she had “crashed”.

[75]Ms Kyriakoulea was absent until the day of the meeting which was postponed. Ms Whalin did not permit the husband to attend and the Claimant agreed to attend the meeting without him under protest.

[76]In early September, the Claimant visited her in-laws in Cumbria and she and her husband decided to move to Cumbria to live with them and move back to London later. The Claimant did not say when she left London and the Tribunal found that this must have been in August/September.

[77]The Claimant attended the Teams PDR on 6 September. Ms Kyriakoulea was awaiting the OH report, which was not received until 9 September. This was even though the OH was told in terms that Ms Kyriakoulea needed advice about the Claimant’s performing the role of coroner officer taking into account CFS and long Covid. This was the second time that the respondent proceeded with a PDR shortly before an OH report was provided.

[78]The Claimant covertly recorded the PDR. Ms Kyriakoulea said that working from home was not possible but it was hoped it would be so in future. This was not consistent with the Respondent’s case before the Tribunal that by September in theory coroners officers could work two days from home. However, there were still objections to working from home from the senior coroner and in respect with to the Claimant there were issues with performance and her being on probation.

[79]Ms Kyriakoulea said there was nothing to stop the Claimant putting in a transfer request. She said if the Claimant were running late one morning, she could ring in to inform her. She told the Claimant the job was only going to get more stressful coming out of lock down as there would be in person attendance in the office - juries and bereaved families. Ms Kyriakoulea offered the Claimant the transfer form and very considerable help to find another office which could offer adjustments. The Claimant’s evidence was by this time she could not get onto the respondent system but there was no explanation from either party as to this. The Claimant also thought that she had to go back part time before she could make a transfer request, although she accepted she may have been confused about this due to her sickness. Ms Kyriakoulea sent the Claimant a long summary of this meeting.

[80]The Respondent’s evidence, which the Claimant accepted as plausible, was that other coroners courts which had worked remotely or hybrid in early 2021, were in the process of returning to on site work by September 2021. The only exception was one of the North London courts which was working entirely remotely. However the Respondent gave unchallenged evidence that there were no vacancies at this court and there were bullying issues and therefore it was not placing any staff let alone any probationers in this court.

[81]On 9 September, the OH report was provided, this showed the Claimant remained very ill. She was suffering from extreme tiredness, problems with memory and concentration. Her prognosis for recovery was unfortunately poor. It was possible she was suffering from long Covid. It was said that she was finding the return to work challenging but might be able to work part time working from home if that was practicable. It proposed a possible phased return over four months working up from 3 to 5 days and up to 6-hour days. The Claimant was likely to be incapable of carrying out the role if it was office based.

[82]On 10 September Ms Kyriakoulea emailed Ms Joel reporting that OH had stated the prognosis was poor, she was also worried that even if the Claimant did return to work, the Claimant was not up to the job and would get sick again - to both the Claimant’s and the Respondent’s detriment.

[83]On 15 September Ms Whalin by email misinformed Mr Begg that the Claimant was graded as a three in her three-month PDR when all her boxes were graded as 4 or 5. In fact all the boxes at the three-month PDR were marked as a three so the overall grade was correct. Ms Whalin said this did not have any effect on her recommendations.

[84]On 20 September, the Claimant appealed against the PDR and raised a grievance in respect of disability discrimination. Mr Begg was appointed to manage this process and he was also responsible for her probation. The Claimant said that she wanted to do on call work less frequently. She pointed out that her sickness absences post-dating sixmonth service should not be taken into account in grading her performance at six months. She asked to be regraded to a four, the second lowest grade. She contended that her ability to do the job should not be measured against the unadjusted role. She asked for the procedure to transfer to another office, which she saw as the best solution.

[85]On 20 September, the Claimant attended the second sickness absence management meeting which she covertly recorded. She reported that she was unable to go outside for more than one or two hours a week and she was sleeping several hours a day. However there had been some slight improvement in that she was able to sit on the sofa and watch television. She agreed with OH that she could not do the role from the office.

[86]Again, there was no suggestion that the Claimant had been provided with anything in writing following this meeting notes. She was not informed that she had reached the second trigger point and if she did not improve to a particular standard she would be at risk of further action including dismissal. This was the second time the respondent failed to explain to the claimant the effects of its sickness absence procedure on her.

[87]On 24 September, the Claimant told her GP she was not fit to return to work, although she would like to do so. There was no reference to prognosis.

[88]By 30 September Ms Joel had taken over from Mr Begg as the Claimant’s second line manager, that is Ms Kyriakoulea’s manager. On 30 September Ms Kyriakoulea completed the ten-month PDR form including quotations from the OH report. She recommended dismissal. Ms Joel signed this off the same day. On 5 October, the Claimant informed the Respondent her correspondence address was now in Cumbria. On 7 October, the Respondent sent the ten-month PDR to the Claimant for her comments. On 8 October Mr Begg heard the Claimant’s appeal from the six-month PDR and Ms Joel took notes. He stated that the Claimant had suffered three sickness absences in her first three months. He went on to say that if that were pro-rated, it would be twelve absences in a year. According to the Respondent’s sickness management policy (not its probation policy), three absences in twelve months was unsatisfactory, and to tigger dismissal required six absences or to be absent for eleven months.

[89]On 14 October, the Claimant challenged the ten-month PDR and said that she should be allowed to work from home at least part time either at St Pancras or elsewhere. The MPS should give her more time to speak to a specialist. Further, the Respondent’s failure to make a reasonable adjustment had resulted in her sickness. She referred to the outcoming specialist appointment on 19 October to gain more clarity on the prognosis. This document used language consistent with legal knowledge, for instance, “proportionate means of achieving a legitimate aim”.

[90]On 21 October, the GP recorded that the Claimant’s symptoms had been worse over the last few weeks, that she had yet to see the specialist and that she was pregnant. The Claimant said that this planned pregnancy only exacerbated the symptoms slightly. However, when she saw the specialist, she said that the symptoms had worsened in late October.

[91]Ms Joel asked HR if she could now invite the Claimant to a meeting to discuss a recommendation for dismissal. On 25 October she emailed the Claimant an invite to what was described as, an interview following a second unsatisfactory probation report.

[92]On 29 October, the Claimant had a remote appointment with the CFS specialist who recorded that she did not think she would be able to return to work in the near future due to the severity of the symptoms. She was currently confined to bed 40% to 60% of the time and experiencing serious cognitive difficulties including concentration and memory. She was suffering from chronic pain. There was no reference to a prognosis, save a review in six months.

[93]The Claimant decided that no reasonable adjustments that she sought were forthcoming from the Respondent and she accordingly resigned by letter on 2 November 2021. She said that she did not expect to be able to return to full duties in the office for the foreseeable future.

The Law

[94]The Law is set out in s.15, s.19, s20 and s.21 of the Equality Act 2010 as follows:- 15 Discrimination arising from disability (1)A person(a) (A) discriminates against a disabled person

(b) (B) if— (a)A treats B unfavourably because of something arising in consequence of B's disability, and (b)A cannot show that the treatment is a proportionate means of achieving a legitimate aim. (2)Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability. 19 Indirect discrimination (1)A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's. (2)For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if— (a)A applies, or would apply, it to persons with whom B does not share the characteristic, (b)it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c)it puts, or would put, B at that disadvantage, and (d)A cannot show it to be a proportionate means of achieving a legitimate aim. 20 Duty to make adjustments (1)Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A. (2)The duty comprises the following three requirements. (3)The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. … (6)Where the first or third requirement relates to the provision of information, the steps which it is reasonable for A to have to take include steps for ensuring that in the circumstances concerned the information is provided in an accessible format. (7)A person (A) who is subject to a duty to make reasonable adjustments is not (subject to express provision to the contrary) entitled to require a disabled person, in relation to whom A is required to comply with the duty, to pay to any extent A's costs of complying with the duty. (8)A reference in section 21 or 22 or an applicable Schedule to the first, second or third requirement is to be construed in accordance with this section. 21 Failure to comply with duty (1)A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments. (2)A discriminates against a disabled person if A fails to comply with that duty in relation to that person. Submissions

[95]Both parties relied on lengthy written submissions and spoke to the submissions and replied to the other party’s submissions. Applying the law to the facts Disability

[96]The Respondent accepted that the Claimant was a disabled person by virtue of her ME / CFS and depression from November 2020 to November 2021. It accepted that it knew about the CFS, ME in November 2020, and that it knew about the depression in October 2019. Discrimination arising from disability s.15 Equality Act

[97]In a section 15 case to shift the burden of proof to the respondent, a claimant must show(i) that he or she has been subjected to unfavourable treatment

(ii) that he or she is disabled and that the employer had actual or constructive knowledge of this

(iii) a link between the disability and the ‘something’ that is said to be the ground for the unfavourable treatment and

(iv) some evidence from which it could be inferred that the ‘something’ was the reason for the treatment.

[98]If that case is established the burden of proof then shifts, and the employer must show either (v) that the reason for the treatment was not the ‘something’ arising in consequence of the claimant’s disability, or (vi) that the treatment was justified as a proportionate means of achieving a legitimate aim.

[99]The something arising in consequence of disability relied upon by the Claimant was as follows:-a. Difficulty in high pressure situations,

b. enhanced susceptibility to stress,

c. more sensitivity to situations and allegations,

d. likelihood of having periods of absence,

e. ability to work without adjustments,

f. likelihood of embarrassment relating to the stigma associated with mental health,

g. behaviour as a result of disability and

h. suffering more stress from a disciplinary and dismissal process than others.

[100]For causation under s.15 the EAT in Basildon and Thurrock NHS Foundation Trust v Weerasinghe

2016 ICR 305

, stated that the Tribunal must identify two separate causative steps,(i) the disability had the consequence of something and

(ii) that the Claimant was treated unfavourably because of that something. It does not matter in which order the Tribunal approaches those two steps.

[101]As per Pnaiser v NHS England and anor

2016 IRLR 170

, EAT, and Sheikholeslami v University of Edinburgh

2018 IRLR 1090

, EAT, under S.15 there are two distinct causative issues. Firstly, did the employer treat the employee unfavourably because of an identified “something”? The Tribunal focuses on the reason in the mind of the alleged discriminator. What consciously or subconsciously was the reason for any unfavourable treatment? If the “something” more than a trivial reason, the test is satisfied. The key question is whether the “something arising in consequence of the disability” operated on the mind of the discriminator - is it an effective cause? According to City of York Council v Grosset

2018 ICR 1492

, CA, there is no requirement that the employer must have been aware of that link when subjecting the employee to the unfavourable treatment.

[102]The other causative step is - whether the “something” arose in consequence of the disability. This is a question of objective fact for an Employment Tribunal in light of the evidence and does not depend on the thought process of the alleged discriminator. The Tribunal should take a broad approach when establishing whether there is a cause or connection of some kind. There might be more than one link in the chain of consequences, but there must be a connection.

[103]The Tribunal firstly considered whether each of the “somethings” on which the Claimant relied had arisen in consequences of her disability. The Tribunal found that difficulty in high pressure situations and enhanced susceptibility of stress arose in consequence of the Claimant’s disability. This was shown by the Claimant’s own evidence, the medical evidence and the ME booklet. The Tribunal also accepted the Claimant would have more sensitivity to allegations and to some situations at work. The Tribunal accepted there was the necessary link between the disability and the likelihood of periods of absence, based on the medical records. However, the Tribunal did not accept that ability to work without adjustments was something arising in consequence of the disabilities because this was simply too vague for the tribunal to make any findings.

[104]The Tribunal did not accept that a likelihood of embarrassment relating to the stigma associated with mental health problems had arisen in consequence of disability. CFS, the Claimant accepted, was not a mental health problem. In respect of depression, there was no evidence that the Claimant was embarrassed or was concerned about stigma.

[105]In respect of behaviour as a result of disability, the claimant relied on her memory problems, and the Tribunal accepted that memory problems was something arising in consequence of her disability. Whilst the Tribunal accepted that most people are stressed by disciplinary and dismissal processes, the two disabilities would render the Claimant more vulnerable to this.

[106]The Tribunal then considered whether this “something” was the effective cause of the detriments relied on by the Claimant at paragraph 11 of the list of issues. 107. 11a) Did the Respondent subject the Claimant to adverse treatment whilst being aware of the conditions she was suffering with?

[108]In view of the Tribunal this was simply too vague to engage with. The Tribunal interpreted it as a generic description of the specifics of adverse treatment set out in the rest of paragraph 11 from b onwards.

[109]There was no dispute that the Respondent on or about 23 November told the Claimant that she could not work in the separate room upstairs and she had to work downstairs and that Ms Kovacova remained upstairs (11b). From April she was allowed to work one day a week upstairs but her main workstation remained downstairs.

[110]The tribunal accepted that a difficulty in working downstairs arose in consequence of the claimant’s disability. She was more sensitive to noise and distractions whereas working upstairs meant she was not interrupted by the phone and answering the door. There were less people working so it was quieter.

[111]The reason for the move downstairs was the senior coroner’s preference and the Respondent’s acceding to this. The Claimant did not challenge that this was the reason that she was told to move downstairs. Accordingly, the Tribunal could not find that the Claimant was moved because of any of the things that were said to arise from her disability. The things that arose from her disability did not operate on the mind of the alleged discriminators whether consciously or unconsciously to any extent. Causation was not made out and this claim must fail. 112. 11c - not permitting the Claimant to have flexible start times or agile working. There was not clarity as to the respondent’s term “agile working”, whether it was defined as working from home or from a police station. But there was no dispute that neither was granted, save some limited flexibility on the start time which the claimant viewed as insufficient.

[113]In view of the Tribunal the Claimant had the same problem as she had with detriment 11b, the Respondent did not do these things because of anything arising from her disability. It did what it did because that was its practice. There was very limited working from home at the St Pancras office for a number of reasons – senior coroner preference, poor quality IT, paper files, and the fact that the Claimant was a probationer. The things arising from the disability did not operate on the minds of the alleged discriminators consciously or subconsciously to any extent and the claim must fail.

[114](11d) Did Ms Kyriakoulea question the Claimant’s honesty and integrity in an email on 11 May by describing her as “attempting to push something through the system while covering up her mistake” and was this repeated by Ms Joel and Mr Ryan in their emails of 20 and 21 May saying she was hiding work.

[115]The Respondent accepted that Ms Kyriakoulea did so question the Claimant’s honesty and integrity, and the documents showed this was repeated by Ms Joel and Mr Ryan. This was self-evidently unfavourable treatment. The question was whether the something that arose from the disability operated on Ms Kyriakoulea’s mind to a significant extent. What caused her to reach her conclusion?

[116]The tribunal found that Ms Kyriakoulea believed that the claimant had recorded information from the next of kin on the file and caused it to appear that this information had come from the GP. Ms Kyriakoulea’s evidence was that she viewed this as a willed action - a different matter from the Claimant’s forgetfulness. This was an act rather an omission by the claimant and for the first time she took a reprimanding tone with her.

[117]The Tribunal did not find that the Claimant entering misleading information arose in consequence of her depression or the CFS. The Claimant’s case was not, for instance, that she panicked because of her illness and recorded something misleading. Rather, her evidence on this matter was unsatisfactory. When she was asked specifically what behaviour she relied on as being said to arise from her disability, she said forgetfulness and did not mention, for instance, a tendency to take fright or to panic and act without thinking things through. She said this was a serious error of judgment and in her witness statement said that she was struggling to function because of brain fog. However, the tribunal did not find that the claimant discharged the burden of showing that her recording misleading information, arose in consequence of brain fog or poor memory. She committed a positive act in recording the information, this was not an omission or something over-looked. She sought to pass off third party information as direct information.

[118]The Claimant did not show that her acts arose in consequence of her disability and further Ms Kyriakoulea did not treat the Claimant unfavourably because of those matters arising from her disability, but because she believed that the claimant actively sought to mislead. 119. 11(e) Ms Joel stated in an email dated 20 February 2021 that the Claimant had “gone sick (one of many occurrences) using CFS as the reason.” The Tribunal accepted that this was unfavourable treatment. It was not a neutral comment as shown by the word “using” CFS, rather than “giving” or “stating” CFS as the reason. The tone of the email was highly critical and showed that Ms Joel was dissatisfied with the Claimant. She referred in the same email to the claimant failing miserably and needed to be fast tracked out.

[120]The Tribunal found that the absences had arisen in consequence of the disability. The question was whether those absences operated on Ms Joel’s mind consciously or unconsciously to a significant extent. There could be no question but that the absences operated on Ms Joel’s mind. This was implicit in the words used. Thus causation was made out.

[121]The Tribunal went on to consider justification. The Respondent relied the legitimate aims of maintaining performance levels, maintaining acceptable standards of work quality and implementing systems to monitor and assess the suitability of probationers. The Tribunal found that these were legitimate aims.

[122]The question was whether Ms Joel’s act was proportionate. When deciding on proportion the Tribunal must weigh the needs of the employer and the discriminatory impact on the Claimant. The test is not the band of reasonable responses.

[123]The Tribunal accepted that managers must be able to express themselves with clarity, particularly between themselves. It might be seen as suspiciously convenient that the Claimant had gone sick the day before the PDR. But it was proportionate to imply that the claimant was using her disability as a reason to avoid the PDR? There was no suggestion anywhere else that the Claimant was a malinger. It was not a proportionate comment and it was possible to think of less severe means of achieving the legitimate aim, for instance Ms Joel pointing out that there was concern the Claimant had gone sick, relying on CFS the day before a possible negative meeting and this would need managing going forward.

[124]The Tribunal took the view that this unfavourable treatment in itself had little negative impact on the Claimant because the surrounding circumstances were much more serious. On the Claimant’s and respondent’s case she was simply not functioning in the role and was making errors. She was very ill. This email was only one small part of the Respondent’s thought process. However, there was some impact because it cast a doubt on the legitimacy of her sick leave. Accordingly this claim succeeded. 125. 11(f) Ms Joel describing the Claimant as a “28 yr old, but behaves like a 14/15 yr old” in a note dated 20 May 2021. This was self-evidently unfavourable treatment. The Tribunal accepted this referred to the game playing on the phone. The question was whether this behaviour was something arising from the Claimant’s disability.

[126]The tribunal accepted that it was not determinative the Claimant did not tell the employer at the time of any link between playing games and CFS or depression. Nevertheless, she did not say at the time or later that this was a coping strategy or seek to explain her behaviour. The Tribunal found this particularly relevant as it was obviously inappropriate workplace behaviour, particularly in a court setting. It was unexplained why the Claimant who did raise other adjustments to her employer, did not raise this as an adjustment. The Claimant provided no evidence that this was a recognised or common coping strategy in respect of either CFS or depression either generally or for her individually. In her witness statement the Claimant concentrated more on her phone use as a method of “stimming”, that is a coping strategy for autism which was not relied on as a disability.

[127]Most importantly, the Claimant’s evidence was that she needed to avoid distractions at work. The phone use did not fit with this. It meant that she had another screen “on the go” which required at least some attention. Further, the game ”pinged”, a distraction.

[128]Accordingly, the Tribunal was not persuaded that there was even a broad connection between the Claimant’s playing of games and her disability. The claim failed. 129. 11(g) -Ms Joel and Mr Ryan concluding in their emails dated 20 and 21 May 2021 that the Claimant was “failing miserably” and that there was “more than enough [reason] to remover her as unsatisfactory” and that she could be “fast- track[ed] out”. This was self-evidently unfavourable treatment.

[130]The Tribunal accepted that the “something” relied on - the difficulty in high pressure situations, susceptibility to stress, memory problems, sickness absence - arose in consequence of the disability. There was extensive evidence from the Claimant that these were the effects of CFS and depression. Further, the tribunal was able to take judicial notice that these are well known effects of these conditions.

[131]The tribunal had to decide if difficultly in high pressure situations, susceptibility to stress, memory problems and sickness absence operated on the Respondent’s decisionmakers’ minds leading to conclusions. There was no real dispute that it was the Claimant’s poor performance that led the respondent to conclude that she was “failing miserably” and that this was reason to remove her. The respondent was not satisfied she could carry out the role and essentially there was little point in investing further time or energy in the Claimant. Bluntly, the respondent should cut its losses and exit her from the organisation.

[132]Accordingly, causation was made out and the Tribunal considered justification. The Tribunal again accepted the Respondent’s legitimate aims.

[133]The Tribunal in deciding proportion must take into account if an employer has failed to make a reasonable adjustment which would have prevented or minimised the unfavourable treatment. See paragraph 5.2.1. of the EHRC Employment Code:- [i]f an employer has failed to make a reasonable adjustment which would have prevented or minimised the unfavourable treatment, it will be very difficult for them to show that the treatment was objectively justified.

[134]This point was not raised in terms by either party. However, the issue of reasonable adjustments was front and centre in this case and the Tribunal considered the reasonable adjustments that had been raised both at the time, during proceedings, and during the hearing.

[135]The first adjustment was working from home. The Tribunal found that this was not a reasonable adjustment because it was not practicable at St Pancras for the reasons set out in full below under s20.

[136]The second adjustment was the Claimant working upstairs in a quiet room. In the view of the Tribunal this was likely to have assisted the Claimant, it would have enhanced her focus and reduced her anxiety and mitigated the difficulties she was experiencing at least at first. It would also have been a more congenial environment considering some of the inter-personal difficulties in the office. This would have been a reasonable adjustment and we will deal with this in more detail below.

[137]A further reasonable adjustment was the Claimant being removed from - in whole or in part - the on-call rota. The Tribunal found that this would not amount to a reasonable adjustment for the reasons that it sets out in full below under section 20.

[138]Another potential reasonable adjustment was flexible start times. This was something that the Claimant raised at the first meeting with Mr Quinn. What was suggested was that the Claimant work core hours and have flexibility around these core hours. In her witness statement she said that she was seeking flexibility so that would arrive by 8.30am or 8:45, with a consequent adjustment to leaving times. She would have core hours of say 8:45 onwards but would seek to arrive at 8am if she could.

[139]Ms Kyriakoulea had said that the Claimant could occasionally text her if she were running late but stressed it could not be a permanent adjustment as she needed to adhere to the fixed hours. The Respondent said that such an adjustment would not be reasonable because the phones needed answering which were extremely busy. Further it would be disruptive because the time before 8:45 was necessary for preparing papers for inquests, getting signatures from coroners when they were not in court, and dealing with overnight deaths.

[140]In view of the Tribunal, however, allowing one of the coroners officers to be late sometimes by up to 45 minutes as a trial period would be a reasonable adjustment. The Tribunal had found that it would have been a reasonable adjustment for the claimant to work upstairs so she would not be opening the door. She could take a larger percentage of phone calls later in the day to balance the disadvantage to her colleagues. A trial period of core hours and flexitime would have been a reasonable adjustment. In the view of the Tribunal flexible working was likely to have been made permanent as it was likely to have been manageable with the claimant taking a larger share of phone calls later in the day.

[141]Another reasonable adjustment the Claimant suggested was gradually increasing her work rather than giving her a significantly caseload quickly in late March / early April. The Claimant had been in the post at least 4 months by this time and she had the least demanding case load of any of the coroners officers. The office was suffering from an unacceptable and highly disruptive backlog. The Claimant’s case load had up to that point increased gradually, for instance she was not doing inquests. According to Ms Kyriakoulea she had picked up less backlog files than others, for instance 7% to a colleague’s 18% or so. Ms Kyriakoulea had been forced to transfer some St Pancras files to Poplar.

[142]If the Claimant picked up substantially less of the backlog files than her colleagues, they would have to pick those files and this would handicap tackling the backlog, as well as putting further strain on her colleagues. Balancing the needs of the employer and the effect on the Claimant, the Tribunal found that it would not have been reasonable for the Claimant to have picked less than two files during the temporary backlog. The Tribunal would not have found that to be a reasonable adjustment.

[143]Another potential reasonable adjustment was transferring the claimant to another location. This would unfortunately not have been effective because there were no vacancies and the only London office where there was full time working from home was unsuitable in any event. The other offices also involved significant on site working and the Tribunal accepted it would have been challenging to effect the transfer a probationer who had a middling 3-month PDR score. Further, the MPS did not manage all the coroners offices. The individual coroners ran the different offices. This was reflected in the nomenclature – the different locations were referred to not as offices but as jurisdictions. The Respondent did not have the ability or agency to move its staff around between different offices; it had to get coronial agreement.

[144]Accordingly, in carrying out the analysis of proportionality under s.15 the tribunal took into account the reasonable adjustments, that is the Claimant working upstairs and flexible start times.

[145]The tribunal considered the effect the reasonable adjustments would have had on the claimant’s performance and hence the proportionality of the respondent’s conduct. This was a hypothetical situation and the Tribunal based its findings on the available evidence.

[146]When the Claimant put her thirty-nine points to Ms Kyriakoulea she concentrated on her need to work from home, flexible start times and pacing - that is not loading herself up so quickly. What she discussed with Ms Kyriakoulea primarily was the difficulties being caused by the commute and getting up in time. She raised problems with distractions but not to the same extent.

[147]The Claimant working upstairs with some flexibility as to start times would have made limited difference to the commute – she would still have been travelling during rush hour. It would not have made any difference to the workload. It would not have made any difference to the high-pressure nature of the job and the need to multi-task, save she might have dealt with less incoming calls. It would not have made any difference to the on-call duties. In the view of the Tribunal the Claimant would still not have been able to cope. The crucial difficulty was that this job was inherently very stressful and it had become exceptionally so during the pandemic.

[148]One of the most significant comments made by the Claimant was that the Respondent did not have enough people to do the work. Whether because of the Respondent itself or the difficulties inherent in the tripartite arrangement, this office was very significantly under resourced at the material time. None of this was the Claimant’s fault but she did not have the wherewithal, even with those adjustments, to do this very challenging role in such difficult circumstances. The Respondent, even had it implemented the reasonable adjustments, would have come to the same conclusion.

[149]Accordingly, the Tribunal balanced the employer’s needs with the effect of discrimination on the Claimant, taking into account the failures it found to make reasonable adjustments. The Tribunal considered whether there was another means of achieving the legitimate aim. The words “failing miserably” were not diplomatic or kind. But this was a personal email between colleagues and not designed for the Claimant’s eyes. Whilst it was robust, it was not offensive or abusive. It was focused on the needs of the respondent and of the coronial service which was under very significant pressure. In the view of the Tribunal it was proportionate for the Respondent to come to the conclusion that the Claimant was not going to be able to fulfil role.150. 11h- Ms Kyriakoulea stating in her written timeline on 30 September that the Claimant played games on her phone as a form of relaxation. In view of the Tribunal this was not unfavourable treatment and was a simple statement of fact. Whether the Claimant said it was to calm herself down or to relax, that was no different. Ms Kyriakoulea was recording the sense of what the Claimant had said.

151. 11i – Ms Whalin recommending the Claimant’s dismissal on 15 September due to health issues based on the false premise in relation to the Claimant’s PDR scoring and Ms Kyriakoulea and Ms Joel deciding to proceed with the dismissal instead of extending the probationary period while knowing about this false premise.

[152]The false premise was the Claimant was marked as 4 and 5 at the three-month PDR, when in reality she was marked as three, meaning her overall grade of three was correct. This was unfavourable treatment. The statement was inaccurate. Ms Whalin did recommend dismissal although in the view of the Tribunal this was a joint decision between herself, Ms Joel, the Claimant’s line manager and Mr Begg. All four had decided to proceed with dismissal and not extend.

[153]The Tribunal did not accept the Respondent’s case the Respondent had not reached a conclusion at this stage. It was clear the decision had been made, for instance Ms Joel’s wanting to fast track the Claimant and Ms Kyriakoulea had said, this is only going to end one way. The decision was that the Claimant would not be extended but would be exited.

[154]The false premise – that the grade 3 was unjustified - was not a significant influence on the decision. It was a minor matter. Ms Kyriakoulea knew the correct grading, Ms Joel knew the correct grading and Ms Whalin was later corrected and in any event she concentrated much more on health than grading.

[155]The reason for the decision was the something arising from the Claimant’s disability. Ms Whalin expressly concentrated on the Claimant’s health issues and her job performance. The Tribunal found that the something arising from the disability - enhanced susceptibility to stress, the absence record, difficulty with high pressure and memory problems - did operate in the Respondent’s minds in making them come to this conclusion. These were the reasons that they had come to their decision. Accordingly, the Respondent treated the Claimant unfavourably because of something arising in consequence of disability .

[156]The Tribunal considered justification. The Tribunal took into account the two reasonable adjustments - working upstairs and a flexible start. However, the Tribunal came to the same conclusion for September that it had in respect of May, save that the balance was more on the Respondent’s side because there was more information available. From May to September the Claimant had been off sick and said that said her health had “crashed”. The medical records in September recorded that the Claimant was unfortunately very ill. Therefore, the Tribunal came to same conclusion - that this was a proportionate decision. 157. 11j – in the PDRs on 25 February, 6 September and on appeal on 5 October and /or 30 September Ms Kyriakoulea, Ms Joel and Mr Begg marked the Claimant down on her performance as a result of the symptoms of disability.

[158]This detriment in the list of issues mixed up the act relied on with the legal test. The tribunal treated the detriment as the marking down, which must be grading the sixmonth PDR as five rather than four, the Claimant accepting four was a reasonable grade. Applying the same analysis as the earlier detriments, the tribunal accepted the claimant was marked as a five because of something arising in consequence of her disability. The burden therefore shifted to the Respondent to justify. The tribunal came to the same conclusion as it had on earlier detriments. It was proportionate for the respondent to mark the Claimant as five for essentially the same reasons. The balance had titled further towards the respondent by the time of the appeal. The Claimant had continued sick after the six-month PDR and there was little prospect of a return.

[159](11k) – Did Ms Kyriakoulea continue to allocate the Claimant new cases from March 2021, despite knowing that this caused her stress and that she could not manage the workload? On 11 March, the Claimant told her line manager that she was not coping well. On 19 March Ms Kyriakoulea knew the Claimant was having problems with case progression. On 1 April, the mentor had told Ms Kyriakoulea that the Claimant was not able to fulfil the role. The allocation of new cases in these circumstances constituted unfavourable treatment.

[160]The Tribunal considered whether the something that arose from the Claimant’s disability operated on Ms Kyriakoulea mind in that it was a significant cause of her conduct. The Claimant did not allege that Ms Kyriakoulea continued to allocate her cases because of any of these things arising from the disability. The Tribunal accepted Ms Kyriakoulea’s evidence that the reason that she continued to allocate cases was because of the existence of the backlog and her desire to spread out the burden as fairly as possible as she saw it. Accordingly causation was not made out and this claim failed. 161. 11(l) –Ms Kyriakoulea told the Claimant on 1st April 2021 that she “could not treat her differently from her colleagues” due to her disability, and that “the job may not be for her if she was unable to cope” Ms Kyriakoulea said in her statement that she may have said something to the effect that she could make reasonable adjustments but could not treat the Claimant differently where she was not performing any of the core functions of the role. The Tribunal accepted that Ms Kyriakoulea said words to this effect. It was a plausible thing to say particularly considering the stress at the time and the backlog.

[162]The Tribunal was uncertain whether Ms Kyriakoulea telling the Claimant she could not be treated differently was unfavourable treatment. However, for the avoidance of doubt, Ms Kyriakoulea did not say she could not treat the claimant because of something that arose out of the Claimant’s disability. The reason Ms Kyriakoulea told the Claimant - I cannot treat you differently - was because she was under great pressure because the backlog and her wish as she saw it to spread the burden equally between staff.

[163]The comment that, the job may not be for you, was unfavourable treatment. It was because of the something arising from the Claimant’s disability - for the reasons the Tribunal set out in earlier detriments. The reason Ms Kyriakoulea thought that the job might not be suitable for the Claimant, included the claimant’s difficulties with the stress and high pressure inherent in the role.

[164]The Tribunal went on to consider justification and accepted the respondent had established a legitimate aim. The issue was proportionality.

[165]The Tribunal accepted that a manager should be able to give feedback in a straightforward way. Honest feedback and advice is usually to be encouraged. The Tribunal would be wary of criticising a manager in a very difficult situation, and it was accepted both by the coroner and Ms Granville that Ms Kyriakoulea was under very considerable stress. There was an alternative way of getting the message across. It could have been better done within a performance procedure, rather than what appeared to be a somewhat off the cuff remark. It was not ideal staff management. Nevertheless, it gave the Claimant the benefit of knowing what the situation was and her manager’s honest opinion. It was better than Ms Kyriakoulea hiding her concerns. Accordingly, the tribunal found that the respondent discharged the burden of showing that this was a proportionate way of reaching the legitimate aim.

[166](11m) – Did Ms Kyriakoulea tell the Claimant on 19 April she was not allowed to work from home as she lacked a sense of urgency which home working would exacerbate?

[167]There was some dispute between Ms Kyriakoulea and the Claimant about whether this was referred to the Claimant’s lack of focus or lack of urgency. In the view of the Tribunal, it was more likely that Ms Kyriakoulea mentioned focus although urgency was also relevant. Ms Kyriakoulea was concerned at having to supervise the Claimant so closely. She had to prompt her and check that she was focussed and not for instance playing games or taking short cuts. This inevitably would be harder if the claimant were working from home. The refusal to permit home working constituted unfavourable treatment.

[168]The tribunal found that Ms Kyriakoulea made this comment because of the something arising from the disability to a significant extent. Her opinion was due to a significant extent to the Claimant’s forgetfulness, her susceptibility to stress and so on.

[169]In respect of justification the Tribunal accepted the Respondent’s legitimate aims and found that this was a proportionate means of achieving these aims for the following reasons. Ms Kyriakoulea needed to be confident as to the Claimant’s focus and ability to prioritise, and the fact that sometimes urgent matters were not dealt with urgently. On the Claimant’s case she found it difficult to prioritise. It would have been more difficult to monitor this and support the claimant if she were working remotely. Experience showed that the claimant needed close supervision and this would have notably harder and more time consuming to achieve if she were remote. Accordingly this claim failed. Indirect discrimination s.19 Equality Act

[170]In deciding what is a provision, criterion or practice (PCP) the Tribunal took into account paragraph 5 ECHR Code (A PCP) should be construed widely so as to include, for example, any formal or informal policies, rules, practices, arrangements, criteria, conditions, prerequisites, qualifications or provisions. A provision, criterion or practice may also include decisions to do something in the future – such as a policy or criterion that has not yet been applied – as well as a ‘one-off’ or discretionary decision.

[171]According to Ishola v Transport for London

2020 ICR 1204

, CA, the words ‘provision, criterion or practice’ are not terms of art but ordinary English words which are broad and overlapping. However, a PCP is not just an ‘act’ or ‘decision’. A PCP ‘is to identify what it is about the employer’s management of the employee or its operation’ that causes the disadvantage. A PCP must be capable of being applied to others. Whilst it is not always repetitive, it is a state of affairs which could be of general application.

[172]The first PCP was requiring the Claimant to be present in the office every day. Both parties agreed that this was what happened and it was the Respondent’s practice. It was therefore a PCP.

[173]The second potential PCP was requiring the Claimant to work in a communal room. The Tribunal found that this did amount to a PCP. This was the Respondent’s policy and practice for coroners officers at St Pancras and this was the Respondent’s explanation for why the Claimant was moved.

[174]The third PCP was requiring the Claimant to be on call as per the rota. The Respondent in its submissions accepted this amounted to a PCP.

[175]The fourth PCP was the Respondent’s policies of subjecting employers to an annualised sickness absence on a pro rata basis for personal development purposes. The Respondent denied this was a PCP. The Tribunal sought to identify the PCP carefully. Mr Begg during the appeal said in effect that, if the claimant had had three absences in three months, he would take into account that this would pro rate up to twelve absences in 12 months. He said this in the context of the Claimant having taken considerably longer sick leave by then, than she had in the first three months.

[176]There was no evidence that this was a policy or a practice. It was simply Mr Begg explaining his thought processes in this particular case. It was grounded in the specific circumstances. The Claimant had a sickness record which indicated a particular problem, and on these facts he made the decision to grade. There was no evidence as to what he might have done in different circumstances. In the view of the Tribunal he could have reached a different conclusion in different circumstances because there were so many variables. It was not possible to identify a practice. This did not amount to a PCP.

[177]The tribunal had therefore identified three PCPs(a) Requiring the Claimant to be present in the office every day, and not allowing her to work from home.

(b) Requiring the Claimant to work in a communal main room with her fellow employees four out of five days per week, despite there being a separate room available for her work in privately.

(c) Requiring the Claimant to be ‘on call’ as per her duties, despite the Respondent being aware that this was exacerbating the symptoms of her disability.

[178]The Tribunal went on to consider whether the Respondent applied or would have applied those PCPs to persons without the Claimant’s disability. On the Respondent’s case, it would have done so.

[179]The Tribunal then considered whether those PCPs would have put the claimant at a disadvantage compared to those who did not share her disability or put it another way – was there group disadvantage?

[180]The Tribunal accepted that there was group disadvantage for the three PCPs in respect of CFS and depression, based on the Respondent not arguing otherwise, from the Claimant’s evidence about how her disabilities affected her, on the Tribunal’s taking judicial knowledge or the common effects depression and CFS and its effects in the work place - including that knowledge of its lay members - and on the ME booklet.

[181]The next issue was whether those PCPs put the Claimant at a disadvantage - that is individual disadvantage. The Claimant relied on the following disadvantages: exacerbation of ill health, a greater risk of further mental health related problems and breakdowns and sick leave, severe deterioration in her illness, difficulty in maintaining performance, an inability to gather her thoughts to present her point of view clearly and cogently, tiredness, brain fog and pain and a loss of trust. Save for the loss of trust, the Tribunal accepted that all PCPs would have put the Claimant at the disadvantages. The tribunal relied on the Claimant’s account on the effects on her of her commute, of her difficulties with concentration and her difficulties sleeping. The Tribunal found the Claimant’s evidence on the effects of the disability to be convincing, detailed, and consistent from recruitment to the end of the employment and before the tribunal.

[182]The tribunal accepted that not being able to work from home put the Claimant at that disadvantage – she gave detailed evidence about the effect of the commute and having to wake up early. The Tribunal found came to the same conclusion in respect of upstairs working based on the claimant’s evidence about being distracted by phone calls and answering the door, the quieter office environment and her ability to control heating and lighting. The tribunal also came to the same conclusion in respect of the oncall rota based on the claimant’s evidence that it severely disrupted her sleep which significantly exacerbated her symptoms as set out above.

[183]The next issue was whether the PCPs caused disadvantage at any point before or after 13 May. The Tribunal viewed as a limitation point and dealt with it below.

[184]The Tribunal having found indirect discrimination, the next issue was whether the treatment was a proportionate means of achieving a legitimate aim. The Respondent relied on the same legitimate aim as under section 15. which the Tribunal accepted for the same reasons.

[185]The tribunal considered whether the requiring office attendance was proportionate. The Tribunal was surprised by the lack of social distancing and adjustments to working practices in respect of Covid 19 at St Pancras. The Tribunal was not the employer and it was not for the Tribunal to tell the Respondent or the other parties to the tripartite relationship how to run their offices or their working arrangements. The tribunal is not well placed to tell organisations how they should have reacted to Covid which was an unprecedented situation with particular difficulties for this service. However, the lack of social distancing put the Claimant into a difficult situation because of her vulnerability to Covid. But there was no claim before us in respect of a lack of social distancing.

[186]The Tribunal carefully considered alternative non-discriminatory ways of achieving the legitimate aim.

[187]The Tribunal found that some issues with the claimant working from home could have been solved. It would be possible for colleagues to cover answering the door. In respect of the telephone the Tribunal was satisfied that it would have been possible to network the Claimant’s home phone. Many organisations, in the experience of this Tribunal, managed to get outside phones working effectively with individual employee mobiles remarkably quickly once Covid struck.

[188]Coroner’s officers were required to be present at inquests. It might well be possible to arrange for the Claimant to work from home on non-inquest days. If these were the only issues with the claimant working from home, it might have been difficult for the respondent to show that office working was proportionate.

[189]However, the St Pancras coroner’s office functioned by way of paper files. The Tribunal accepted that the coroners officers had to be on site the great majority of time in order to carry out investigations into deaths. The tribunal accepted that an investigation was not simply gathering information, important as that was. The coroners officers also had a role of analysing and evaluating the information. The officers needed to be on site to obtain wet signatures and they had to be on site to have access, sometimes with difficulty, to the coroner. Further the computer system IRIS did not work effectively outside the building. Even after installation of CIVICA, problems remained with legacy files and St Pancras continued to operate a paper file system. One of the disadvantages of a paper file system is that remote working is far more difficult.

[190]The claimant suggested that she might in effect store up enough work for a day or two of homeworking every week or so, and work through the papers at home. The Tribunal accepted that this would be unwieldy and inefficient. Every time a suitable task for home working was identified, the claimant would have to make notes, ensure she had the papers necessary to take away. Upon return, she would have to insert the pieces of work into the files. The Claimant had said that one of her difficulties was multitasking, that is working on multiple files. This would be exacerbated by her selecting a particular task for home working, for instance phoning GPs, mortuaries or the police, and doing this on a number of files. This would materially increase the Claimant’s workload. She would have to work through a paper file, decide that she needed to, for instance, ring a GP, come back to that task when at home, then come back into the office and record it on the paper file and entering it onto the database if appropriate.

[191]Another objection from the Respondent was that the Claimant was a probationer and the Tribunal broadly accepted the Respondent’s case on this, she did need to learn and she did need to be supervised.

[192]The Tribunal also took into account the cumbersome nature of the tripartite agreement. To facilitate the claimant working from home - the senior coroner would need to agree, the local authority might need to provide equipment, and the respondent would have to manage it. The Respondent could have attempted to liaise with the senior coroner and local authority about the claimant working from home, in particular advising about indirect disability discrimination. There was no indication that they did so. There were no grounds to believe that this would have borne fruit. Nevertheless, this is something the respondent may wish to review going forward and to seek to liaise with its tripartite partners. The only claim in these proceedings was against the respondent as an employer.

[193]The Tribunal also took into account that this was a small team suffering from very high levels of pressure and overwork, meaning unfortunately that there was simply less “slack in the system” for other coroners officers to pick up the parts of the job the Claimant did not do when at home.

[194]Therefore, the tribunal found that requiring that the Claimant worked in the office was a proportionate means of achieving the Respondent’s legitimate aim.

[195]The second PCP was the Claimant working downstairs in the communal room rather than upstairs in a separate room. One of the Respondent’s submissions that this was not proportionate was that it could not network the phones upstairs. The tribunal could not accept this explanation as another of the coroners officers was working upstairs. The Respondent had made it work for one officer and had not shown that it could not be done for the claimant. Especially at this period, there were many offices and organisations with less resources than the MPS, with the liaison of the coroner and the local authority, who managed to alter their phone and IT systems to move staff around buildings to facilitate social distancing. The Tribunal did not accept that the Claimant needed to be sitting next to her mentor. It was possible for her to walk up and downstairs and to talk to her mentor when needed.

[196]The tribunal accepted that there would be a disadvantage because she would not be sitting with the other coroner officers. However, this was less of a problem because her working relationship with those coroners officers was not ideal, as shown by the complaints against her. There would be significantly advantages to the Claimant who would suffer less distraction and be able to focus better. If the senior coroner wanted to speak with all the coroners officers, it would not be difficult for her to call down the Claimant and the other coroners officer.

[197]Accordingly the Tribunal found that the Respondent’s requiring the claimant to sit downstairs was not a proportionate means of achieving its legitimate aim and this claim succeeded.

[198]The third PCP was on the on-call rota. The Tribunal accepted that this was a fundamental part of the role and the Claimant had been informed of this at recruitment. Unfortunately, because of under-staffing, this was more frequent than it should have been. The tribunal had to balance the needs of the claimant with those of the employer and her colleagues. An alternative solution would be for the Claimant to do no or significantly less on call work than her colleagues in the office. There were only four others. Had the Claimant been taken off the on-call rota in whole or in part, there would have been an up to 25% increase to the amount of on call work falling to each of the other coroner officers. On call was an undesirable part of the job, despite attracting overtime.

[199]Further, the Tribunal did not find that the Claimant’s solution that she would pick up on call cases during the day would be effective. On the Claimant’s case she had real limits to the number of new cases she could take up. On call cases were more likely to be complex and/or urgent, as they arose at night.

[200]Accordingly, requiring the Claimant to take part in the on-call rota was a proportionate means of achieving a legitimate aim.

[201]Accordingly, the Claimant succeeded in indirect discrimination in respect of working upstairs in the separate room. Failure to make reasonable adjustments ss20-21 Equality Act

[202]The Tribunal had found that the Respondent had applied the following PCPs in the indirect discrimination claim :-a. requiring the claimant to be present in the office everyday and not working from home,

b. requiring her to work in the communal main room four days a week and

c. requiring her to be on call.

[203]The next issue was whether any of these PCPs put the Claimant at a substantial disadvantage because she was at greater risk of :-a. capability and/or disciplinary proceedings,

b. stress and anxiety,

c. health related problems,

d. having to take time off work due to illness and

e. financial loss.

[204]The Tribunal firstly considered working from the office. The Tribunal could not see how requiring the Claimant to be present in the office everyday rendered her at a greater risk of capability or disciplinary proceedings. However, it accepted that this practice put her at a substantial disadvantage compared to a non-disabled person because she was at a greater risk of stress and anxiety, and health related problems and having to take sick leave and, consequently, financial loss. The tribunal’s reasoning was the same as under the other heads of claim.

[205]The Tribunal applied the reasoning made under the other heads of claim and found that working upstairs and being on call put the claimant at the necessary substantial disadvantage.

[206]In respect of knowledge, the Respondent could reasonably be expected to know that the Claimant was put at that substantial disadvantage, because the Claimant informed them of this on many occasions.

[207]Accordingly, in respect of the operation of these three PCPs, the duty to make reasonable adjustments was triggered.

[208]The Claimant relied on a further three PCPs, at para 21 of the list of issues.

[209]Firstly, maintaining that only an MPS employer or union rep could accompany the Claimant at her six-month PDR meeting and not permitting her husband to attend. The Tribunal did not accept the Respondent’s argument that this decision did not amount to a PCP. It was the implementation of the Respondent’s policy, according to the Respondent’s own documents and Ms Whalin’s statement.

[210]The Tribunal was satisfied that the PCP put the Claimant at a substantial disadvantage because the Claimant, on her case and based on the medical evidence, was at this point very ill indeed. Her husband was in a uniquely advantageous position to accompany her. He had in depth knowledge of her condition and what did and did not help. Accordingly, the duty the duty to make reasonable adjustments was triggered.

[211]The next potential PCP was recommending dismissal of the Claimant as a probationer judged unlikely to be able to undertake her role due to health issues. The Tribunal did not accept that this was a PCP for the following reasons. The Tribunal accepted Ms Whalin had not recommended dismissal simply because the claimant had triggered the sickness absence process. Rather, the decision was based on specific circumstances, with a number of factors being taken into account most of which were personal to the Claimant and how she performed the coroners officer role. The Tribunal was satisfied that this was a one-off decision, and not a practice or something than could be applied to another employee. The tribunal was bolstered in this finding by Mr Begg’s specific analysis of the claimant.

[212]The third and final PCP was requiring the Claimant to initiate and arrange any visits to other coroners offices or applications for transfers.

[213]The Tribunal considered whether this was a one-off decision, or whether this was what the Respondent did if someone asked, that is something applicable to others. The tribunal found that if another employee asked for a transfer, the Respondent would have done the same thing. Whilst the Respondent’s evidence was that it was very rare for someone to seek to change location, this was the way the Resondent did things. It was therefore a PCP.

[214]In the Claimant’s witness statement, she made it clear that her criticism was Ms Kyriakoulea’s failure to take steps in respect of the transfer up to March 2021. From that point onwards, the evidence showed that Ms Kyriakoulea attempted to assist the Claimant and offered to do a number of things to help.

[215]Tribunal found that the practice of expecting an employee to initiate and arrange visits to other HMC offices with a view to a transfer and to make the application did not place the claimant at a substantial disadvantage because of her disability. This was of a piece with her normal duties, essentially ringing people to get information and arrange things, and filling in forms. Travel might well have put her at a more than trivial disadvantage, but this was not part of the PCP, as the claimant would have had to travel to visit the location in any event. The PCP related to the claimant in effect taking the lead in contacting offices.

[216]Accordingly, the duty to make reasonable adjustments was not triggered.

[217]The Tribunal accordingly found that the duty to make reasonable adjustments was triggered by the operation of the following PCPs:a. requiring the Claimant to be present in the office every day,

b. working in the main downstairs room,

c. working on the on-call rota,

d. her husband not being permitted to attend the PDR meeting.

[218]The burden at this point is on the employer, see Smith v Churchills Stairlifts plc

2006 ICR 524

, CA. The Court of Appeal confirmed that the test of reasonableness of is an objective one, see Owen v Amec Foster Wheeler Energy Ltd and anor

2019 ICR 1593

, CA. The Tribunal should consider what would be the practical outcomes of any adjustment.

[219]The Tribunal first considered working from home. The Tribunal had already considered this matter in under s.15 and s19 and accordingly for the same reasons made the same finding under s.20 - this would not have been a reasonable adjustment. Although the test under s19 is different – proportionality- the tribunal based its findings on the reasonableness of the adjustment on the same factors.

[220]In respect of working upstairs, the Tribunal had made a finding in principle under s.15, and in effect under s19, that working upstairs would have been a reasonable and effective thing for the respondent to do. Although the test under s19 is different – proportionality- the tribunal based its findings on the reasonableness of the adjustment on the same factors. The Tribunal reminded itself that for an adjustment to be reasonable, there does not need to be a guarantee of success, but there must be a prospect that it would help. The Tribunal had found that there would have been a prospect that this adjustment would have helped. Although the tribunal had found that, in the end, the adjustment would not have prevented dismissal, it remained a reasonable adjustment. Accordingly this claim succeeded.

[221]The third PCP was the Claimant being on call. The Tribunal had considered this matter in principle and had found that removing the claimant from the rota, or substantially reducing her share, was not proportionate under s19. Therefore, for the same reasoning, the tribunal found this did not amount to a reasonable adjustment under s.20.

[222]The fourth and final PCP was the refusal of the Claimant’s husband attending the 6-month PDR. In view of the Tribunal, this would have been an effective adjustment. Her husband would have been effective at putting her case based on the Tribunal’s finding that he had been helping her write a number of documents.

[223]In deciding whether an adjustment is reasonable the Tribunal must carry out a balancing exercise and the Tribunal identified a number of factors on each side of this question.

[224]Firstly, the factors on the respondent’s side. The Tribunal accepted that family members can introduce difficulties and there are good reasons that employers may wish not to have them in the room.

[225]There were also specific issues in this case. The companion under the Respondent’s procedure enjoys a broad remit and can advocate for the employee. They are not merely a note taker or there to provide moral support. So it would be reasonable for this Respondent to be careful about who is permitted as a companion. This was highly relevant in this case because the Claimant had personally threatened Ms Kyriakoulea with her husband and used vivid language as to what he would do to her. The Respondent had a responsibility to its staff and, even if the Claimant had established that this comment was due to illness, it was a serious threat. It was reasonable for the respondent to believe that the husband would attend any meeting with an agenda rather than as disinterested support. The Tribunal was not taken to any evidence that the Claimant had apologised or told Ms Kyriakoulea that she was wrong when she made the threats.

[226]The Tribunal considered whether there were other people the Claimant could have asked. The claimant’s mentor might not have been as useful as the husband because she had less knowledge of the Claimant’s conditions. On the other hand, she did have more knowledge of the working environment. However, the Tribunal accepted it might be awkward for the Claimant to ask her mentor (and still further anyone else).

[227]On the other side of the balance sheet – the reasons on the claimant’s side, this adjustment would have been cost free. The problem of the claimant’s threats against Ms Kyriakoulea would have been mitigated to some extent by the meeting being over video. There would have been a certain distance between the husband and Ms Kyriakoulea.

[228]The Respondent did not run the argument that the claimant’s threats made it inappropriate for the husband to attend the meeting, until it was raised by the Tribunal. The Tribunal saw no evidence that in fact this had occurred to the respondent, and most importantly to Ms Kyriakoulea, who was the subject of the threats. She had not raised it. In fact she told the Tribunal that she thought it would be reasonable to have the husband at the meeting and it was only following advice from HR that she had not permitted it.

[229]Further Ms Whalin in her witness statement relied on her personal analysis of the Claimant’s mental capacity as the reason for refusal. She failed to mention the potentially relevant exception to the policy - a reasonable adjustment for a disabled person. She gave a different explanation before the Tribunal as to why the husband was not permitted - the Respondent did not want a lawyer in the room.

[230]Further the Respondent was failing to comply with its own procedures – and good practice - in informing the Claimant of the outcome of meetings. By this point there had been one case conference - and there was shortly to be a second case conference - where the Respondent failed to confirm to the Claimant the results of the meeting. The claimant was not told what she had to do going forward to avoid any future issues, or that she had a right of appeal. This was a significant failure and although the PDR was a different meeting under a different procedure, it was highly relevant that the Respondent was not providing the Claimant with written accounts of what happened in meetings.

[231]The Claimant by covertly recording the meetings somewhat mitigated the disadvantage because she obtained notes.

[232]The Tribunal considered both matters on both sides of the “balance sheet” and found narrowly against the Respondent. The Tribunal viewed the threats the Claimant had made against Ms Kyriakoulea as a serious matter. The Tribunal would not normally view bringing a lawyer into such a meeting as a reasonable adjustment. However, the claimant’s husband was to attend not as a lawyer but as a husband. In coming to this conclusion, the Tribunal relied in particular on the knowledge and experience of its industrial jury. The Claimant was at this point very ill, she was at a significant disadvantage in this meeting. The fact that the meeting was remote would provide some distancing. Finally, there was no contemporaneous reliance on the threat, or suggestion from Ms Kyriakoulea that she was concerned about his being there. Accordingly, the Tribunal found that permitting the claimant’s husband to attend the six-month meeting would have been a reasonable adjustment. Time points - limitation

[233]The Tribunal found the following acts of discrimination had occurred:-a. Ms Joel’s comments about the Claimant using CFS in May 2021,

b. the failure to permit the Claimant to work upstairs which started in November or early December 2020 and went on throughout the Claimant’s employment (both as a reasonable adjustment and act of indirect discrimination); and

c. the failure to permit the Claimant’s husband to attend the six-month PDR in September 2021.

[234]The tribunal went onto consider the time points set out in the List of Issues. It was agreed that anything that occurred from 4 September 2021 was in time.

[235]Accordingly, the failure to permit the claimant’s husband to attend was in time. The Tribunal took the view that this matter was under discussion and therefore it did occur up to and including the 6 September 2021.

[236]The Tribunal then considered the timing of the Claimant working upstairs. Did time start to run in respect of her not being allowed to work upstairs when the Claimant was brought downstairs in November/December 2020 or was her working downstairs a continuing situation that went on until the Claimant was terminated? To put it another way, was the decision that the Claimant was to work downstairs a one-off decision with continuing consequences, or was it an ongoing situation and a state of affairs?

[237]The Tribunal determined that it was a state of affairs. It was an ongoing situation partly because the Claimant had kept raising the matter and the Respondent kept revisiting the decision. This lasted until the termination of the claimant’s employment and the claim was brought in time.

[238]At first sight, Ms Joel’s comments in May 2021 were out of time. So the Tribunal considered whether Ms Joel’s comments formed part of a continuing act with the acts in time, the 6-month meeting and the claimant working downstairs. For the avoidance of doubt, the Tribunal also considered whether the decision that the claimant work downstairs in November/December 2020 would have been a continuing act with the refusal of the husband to attend.

[239]The Tribunal found that all of these three acts, the refusal of the husband to attend the meeting, the Claimant being told she must work in the communal room downstairs, and Ms Joel’s comments in May, were a continuing act, an act extending over a period. Fundamentally they were all part of the same story. Ms Joel made her comments because the Claimant was not performing in her duties because of her disability, the refusal to allow the Claimant to work in a separate room was a reasonable adjustment relating to the same performance issues and the PDR on 6 September was entirely about these matters.

[240]Again, for the avoidance of doubt and if the Tribunal had fallen into error as to an act extending over a period of time, the Tribunal went on to consider whether it would have been just and inequitable to exercise its discretion to hear the claim about sitting downstairs and Ms Joel’s comments in May. The burden would have been on the claimant.

[241]The tribunal would have applied the EAT case of Bahous Benachour v Inayya Corp t/a Pizza Hut that, when carrying out this analysis, the fact that a Tribunal has found acts of discrimination to be made out, is a significant factor in determining whether or not to exercise the Tribunal’s discretion.

[242]There was also no dispute that the Claimant was very ill from May 2021. Despite this, the Claimant did try to engage with the Respondent’s processes, she did attend meetings including attending the 6 September meeting without her husband. She did not hasten to the Tribunal once she became concerned about the way she was being treated. This Tribunal would not wish to make findings that would motivate employees to go straight to the Employment Tribunal, or to ACAS, rather than staying in work and seeking to resolve matters. The Claimant’s attempts to engage were particularly meritorious despite the respondent not providing acceptable feedback from the sickness absence meetings, and not providing the reasonable adjustment in respect of her husband attending.

[243]In these circumstances, if the Tribunal did fall into error and any out of time act of discrimination did not form a continuing act with in time act(s), it would have been just and inequitable to extend time.

[244]Accordingly, the tribunal had temporal jurisdiction to consider all three complaints.