Mrs E Aylott v BPP University Ltd: 2201378/2019 and 2201817/2019

EMPLOYMENT TRIBUNALS

Case No 2201378/2019, 2201817/2019

Between

Mrs E AylottClaimant

BPP University LtdRespondent

Before

Employment Judge Gordon

Heather Platt (instructed by counsel) for claimant

Robert Jones (instructed by counsel) for respondent

Date 23 April 2020

JUDGMENT

[1]The Claimant had a disability within the definition of section 6 of the Equality Act 2010 over the whole period of her employment with the Respondent and for many years before such employment commenced. Note: Reasons for this decision are given in the case management notes. JUDGMENT

[2]The judgment of the Tribunal is that the Respondent did:(a) Constructively unfairly dismiss the Claimant pursuant to sections 95 and section 98(4) Employment Rights Act 1996;

(b) Unfavourably treat the Claimant because of something arising from disability pursuant to section 15 of the Equality Act 2010 (“EqA”). The following claims do not succeed and are dismissed: (a) Direct disability discrimination under section 13 of the Equality Act 2010; - 1 -

(c) Harassment relating to her disability under section 26 of EqA; (b) Indirect disability discrimination under section 19 of the EqA 2010; (c) Failure to make reasonable adjustment under section 20 – 21 of EqA.

REASONS

[1]By a claims presented on 15 April 2019 and 9 May 2019 the Claimant presented claims of disability discrimination and constructive unfair dismissal, following her resignation on 25 April 2019.

The Issues

[2]The issues in this matter were agreed between the parties as follows: “Disability 1. the Claimant suffers from the following mental impairments which have a substantial and long term adverse affect on C’s ability to carry out normal day-to-day activities:a. Autistic spectrum disorder;

b. Anxiety (and related irritable bowel syndrome); and

c. Depression. 2. the Claimant was disabled over the whole time of her employment with the Respondent and many years before because of her longstanding mental health conditions of ASD, anxiety (and related IBS) and depression.

[3]When did R have knowledge of C’s disability? The Claimant alleges that the Respondent had actual knowledge from 1 September 2013. The Respondent denies having knowledge of the Claimant’s condition until 14 December 2018, in respect of depression and anxiety, 6 August 2019, in respect of ASD and 13 September 2019, in respect of the anxiety-related IBS. Jurisdiction

[4]In respect of C’s allegations of discrimination predating 02 November 18, did these form part of a continuous course of conduct continuing to that date?

[5]If not, is it just and equitable to extend time? Direct disability discrimination - 2 -

[6]Has R treated C in the following ways?a. the Claimant was not offered more than 15 days contractual sick pay. The Respondent accepts that she was not.

b. the Claimant was informed she could not have a phased return to work by Steven Shaw / David Donnarumma on 6 November

c. C’s depression was not considered “life threatening” despite the fact that she experienced suicidal ideation which was known by Steven Shaw and David Donnarumma.

d. In about May 2018 Juliette Wagner said that the Claimant was, “Mad as a box of frogs, but a good worker”. The Respondent accepts that the comment was made.

e. Later in about May 2018 David Donnarumma reported Juliette Wagner as having said that the Claimant was, “As mad as a box of frogs”.

f. In about October /November 2018 - Steven Shaw rebuked the Claimant by stating that someone of the Claimant’s age and experience should be able to prioritise and manage her workload. The Respondent denies that Steven Shaw referred to the Claimant’s age or that the comment amounted to a rebuke but otherwise accepts that the comment was made.

g. On 6 November 2018, Steven Shaw stated that many managers were working similar hours within the University and words to the effect of “while this was clearly not their contractual hours, managers routinely worked them to get jobs done as part of their management responsibilities”. The Respondent accepts that the comment was made.

h. Whilst the Claimant was off sick because of depression / anxiety she was told by Steven Shaw that she was costing the Respondent £3k per month for being off sick and was made to feel worthless and a burden (2019).

[7]If so, in respect of each treatment, was C treated less favourably than an actual or hypothetical comparator? C relies on Simon Atkinson and Ruth Miller as actual comparators in relation to 6a - c above.

[8]Was C’s disability the reason for any less favourable treatment? Discrimination arising from disability

[9]Has R treated C in the following ways? - 3 -a. A complaint was made about her and she was told by Juliette Wagner on about 19 September 2018 during a telephone call to be careful with the tone and wording of emails she was sending. The complaint had been discussed with members of the senior management team, however the Claimant was not provided any specific details or sight of the complaint itself. The fact of the complaint and manner in which it was handled were both distressing to the Claimant who was already clearly suffering under the effects of her anxiety.

b. She was told by David Donnarumma on 19 September 2018 that she was overreacting to the complaint.

c. She was told that she should not say “no” to work requests and she should sound as though she was able to meet demands by Stuart Ansell (Operations Business School) in the Autumn of 2015, and Juliette Wagner on 3 January 2019.

d. She was not referred to Occupational Health in a timely manner (either in 2013 when she completed an Occupational Health Form; or in March 2014 when off sick with low mood; or in Autumn 2015 when she informed Stuart Ansell that her workload was making her ill; or on February 2018 when she disclosed that she was taking antidepressants; or in April 2018 when she told Juliette Wagner of her mental health problems during a telephone call; or in May 2018 following a hospital visit and being advised to reduce her workload; or in August 2018 when Juliette Wagner agreed to reduce her workload; or in June 2018 when David Donnarumma described her as “frazzled”; or in September 2018 when she disclosed to Mr Donnarumma that she was not coping and was drinking alcohol heavily to help her cope with work pressure and to reduce her anxiety levels; or in October 2018 when she was signed off work; or on 5 November 2018 when she disclosed her problems to Mizan Ur-Rahman; or on 6 November at a Return to Work meeting or at any point prior to 23 January 2019) and she should not have had to request such a review.

e. She was not made subject to a risk assessment (either in May or October 2018 or at all).

f. She was not offered any alternatives to a settlement agreement in a sickness review meeting on 6 November 2018.

g. Her sickness absence was not effectively managed, in particular from 6 November 2018 the Respondent did nothing to allow the Claimant’s health to recover and did not manage her sickness absence at all.

h. She was informed that there was no phased return to work policy by Steven Shaw / David Donnarumma on 6 November - 4 -

[10]If so, in respect of each such treatment, was it unfavourable?

[11]If so, in respect of each unfavourable treatment, was it because of something arising in consequence of C’s disability? C relies on the following as “something”:a. Her reliance on alcohol to manage her feelings of anxiety, her need for adjustments to accommodate her mental health and the stigma of mental health illness;

b. Her reliance on alcohol to manage her feelings of anxiety, her need for adjustments to accommodate her mental health and the stigma of mental health illness;

c. Her need for adjustments to accommodate her mental health and her vulnerability to stress;

d. Her need for adjustments to accommodate her mental health and the stigma of mental health illness;

e. Her need for adjustments to accommodate her mental health and the stigma of mental health illness;

f. Her sickness absence;

g. Her sickness absence and her need for adjustments (including a phased return to work) to accommodate her mental health; and

h. Her sickness absence and her need for adjustments (including a phased return to work) to accommodate her mental

[12]If so, can R show that the treatment was a proportionate means of achieving a legitimate aim?

[13]Did R know, or could R reasonably have known, at each material time, that C had the disability? Indirect disability discrimination

[14]Does/did R have the following provisions, criteria or practices?a. The practice of requiring managers to routinely work in excess of contractual hours and / or to routinely work 55 – 60

b. The policy of not treating suicidal ideation as life threatening.

c. The sickness absence policy and payment of 15 days’ company sick pay. - 5 -

d. The practice of not having a written phased return to work policy.

[15]If so, in respect of each PCP, does it put persons with the disabilities of depression and anxiety and/or ASD at a particular disadvantage when compared with persons who are not disabled?

[16]The Claimant relies on the following disadvantage:a. Exposure to stress, becoming ill and/or suffering a deterioration in mental health due to a consistently heavy workload;

b. Sick pay limited to 15 days for non life threatening illnesses and financial distress (the Respondent avers that sick pay is limited to 15 days in all cases, but can be extended as a matter of management discretion);

c. As above at b;

d. Distress caused by the lack of certainty around returning to work following a period of ill health.

[17]If so, in respect of each PCP, did it put C at that disadvantage?

[18]If so, can R show that the PCP is a proportionate means of achieving a legitimate aim? In respect of limiting company sick to 15 days, R relies on the legitimate aim of conserving its financial resources. Failure to make reasonable adjustments

[19]Does/did R have the following PCPs?a. The duties and arrangements of a Student Learning Manager in the Functional Skills Team.

b. The practice of not allowing employees to say “no” to work requests and requiring them to sound as though they are able to meet demands.

c. The practice of requiring managers to routinely work in excess of contractual hours and / or to routinely work 55 – 60

d. The practice of not acting on disclosures of reliance on alcohol.

e. The policy of not treating suicidal ideation as life threatening.

f. The sickness absence policy and limiting company sick pay to 15 days. - 6 -

g. The practice of requiring personal / direct engagement in grievance and / or sickness absence procedures.

h. The practice of not having a written phased return to work policy.

i. The practice of not considering sabbaticals or reducing the scope of roles.

[20]If so, in respect of each PCP, does it put a disabled person at a substantial disadvantage in comparison with persons who are not disabled?

[21]If so, in respect of each PCP, did R take reasonable steps to avoid the disadvantage? C alleges that R should have made the following reasonable adjustments:a. Reducing C’s workload and/or providing C with additional support and/or resources and/or ensuring her workload was covered to allow her time off to recuperate;

b. Allowing C to refuse work requests.

c. Ensuring C was not overworked by reducing her workload; monitoring her workload, providing support and resources when they were requested and allowing her to refuse work requests and to ensure that her workload was covered and would be dealt with in her absence to allow her time off to recuperate.

d. Heeding indications that C was not coping, in particular, her disclosures to Mr Donnarumma in about September 2018 that she was relying on alcohol to manage her anxiety, that she was not coping and listening to C’s requests for support / resources and her wish to pay for a medical report so the R could understand her ASD and noting the times C was working.

e. Treating suicidal ideation as life threatening and allowing C to draw contractual sick pay for more than 15 days.

f. As above at e.

g. Agreeing to contact C by some other method namely indirectly, via her solicitor or disability advocate.

h. Allowing C to undertake a phased return to work.

i. Reducing C’s role, removing some responsibility or allowing her to take a sabbatical.

[22]Did R know, or could R reasonably have known, at each material time, that C had the disability? Harassment - 7 -

[23]Did R engage in the following conduct?a. In about May 2018 Juliette Wagner said that the Claimant was, “Mad as a box of frogs, but a good worker”. The Respondent admits that the comment was made.

b. Later in about May 2018 David Donnarumma reported Juliette Wagner as saying that the Claimant was, “As mad as a box of frogs”. The Respondent admits that the comment was made.

c. In about October /November 2018 - Steven Shaw said that someone of the Claimant’s age and experience should be able to prioritise and manage her workload. The Respondent denies that any reference was made to the Claimant’s age but otherwise admits that the comment was made.

d. Whilst the Claimant was off sick because of depression / anxiety she was told that she was costing the Respondent £3k per month for being off sick and was made to feel worthless and a burden.

e. On 6 November 2018, Steven Shaw stated that many managers were working similar hours within the University and words to the effect of “while this was clearly not their contractual hours, managers routinely worked them to get jobs done as part of their management responsibilities”.

[24]If so, in respect of each conduct, was it unwanted?

[25]If so, in respect of each unwanted conduct, was it related to C’s disability?

[26]If so, did it have the purpose or effect of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her?

[27]If any unwanted conduct had the effect set out in Issue 26 above, was it reasonable in all the circumstances for it to have that effect? Constructive unfair dismissal

[28]Did R breach the term of trust and confidence as follows?a. By each act of discrimination and harassment set out above (whether or not it amounts to a breach of the Equality Act 2010).

b. By the time it took the Respondent to provide the appeal outcome.

c. By the appeal outcome not satisfactorily dealing with the Claimant’s concerns or addressing her arguments. - 8 -

d. By conducting a superficial investigation.

e. By rejecting C’s appeal.

[29]If so, was any such breach sufficiently serious as to justify C in treating her contract of employment as being at an end?

[30]If so, did C resign in response to any such breach?

[31]Did C delay terminating her contract of employment so as to affirm her contract of employment or waive any breach? Wrongful dismissal

[32]If C succeeds in showing she was constructively dismissed, she will be entitled to her notice pay. Personal injury

[33]Was C’s mental health condition exacerbated by R’s discrimination?

Remedy

[34]What remedy is C entitled to (if any)?” The Evidence 3. For the Claimant the Tribunal heard from the Claimant herself and Mr Kevin Sharman. 4. For the Respondent the Tribunal heard evidence from Ms Juliette Wagner and Mr David Donnarumma. 5. We received a bundle of documents containing 1,160 pages contained within three lever arch files. Frustratingly this had been arranged thematically in 16 separate sections, meaning that it is difficult to follow events chronologically without having to navigate around between different sections of the various files. Adjustments in the hearing 6. To assist the Claimant during the course of the hearing we ensured that we took regular breaks. There were several occasions outside of regular breaks where the Claimant needed time to compose herself which she did either by going out of the hearing room with her sister, who was present throughout, or alternatively by the Tribunal taking a short adjournment. - 9 - THE LAW Constructive Unfair dismissal 7. Section 95(1)(c) of the Employment Rights Act 1996 provides that an employee is taken to be dismissed by his employer if “the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct”. 8. It is established law that(i) conduct giving rise to a constructive dismissal must involve a fundamental breach (or breaches) of contract by the employer;

(ii) the breach(es) must be an effective cause of the employee’s resignation; and (ii) the employee must not, by his or her conduct, have affirmed the contract before resigning. 9. Fundamental breach - in this case the Claimant claims breach of the implied term that the employer should not, without reasonable and proper cause, conduct itself in a way that is calculated or likely to destroy or seriously damage the relationship of mutual trust and confidence that exists between an employee and her employer (Malik v Bank of Credit and Commerce International SA

[1997] ICR 606

, per Lord Steyn 621)). In these reasons the terms “serious breach”, “fundamental breach” and “repudiatory breach” are used interchangeably. 10. In considering the question of constructive dismissal the primary focus is on the employer’s conduct, not the employee’s reaction to it. In other words, what amounts to a serious breach is to be judged objectively not by the subjective view of the employee. 11. Merely unreasonable conduct is not sufficient to amount to a serious breach (Bournemouth University Higher Education Corporation v Buckland

2010 ICR 908

CA). Buckland made clear that attempts to make amends by an employer do not undo a fundamental breach and if an employee chooses to reject the offer to make amends and resign they can still do so. It is open to an innocent employee to waive or accept the breach such that the employee relation continues (per Sedley LJ). 12. It is irrelevant that the employer does not intend to damage this relationship, provided that the effect of the employer’s conduct, judged sensibly and reasonably, is such that the employee cannot be expected to put up with it (Woods – v- Car Services (Peterborough) Limited

[1981] ICR 666

). 13. It is not however enough to show that the employer has behaved unreasonably although “reasonableness is one of the tools in the employment tribunal’s factual analysis kit for deciding whether there has been a fundamental breach” (Buckland). - 10 - 14. A finding of discrimination does not automatically lead to the conclusion that there has been a fundamental breach (Amnesty International v Ahmed

2009 ICR 1450

, EAT, per Underhill P at para 71), however as Underhill P observed: “Of course in many if not most cases conduct which is proscribed under the anti-discrimination legislation will be of such a character that it will also give rise to a breach of the trust and confidence term; but it will not automatically be so. The question which the tribunal must assess in each case is whether the actual conduct in question, irrespective of whether it constitutes unlawful discrimination, is a breach of the term defined in Malik” 15. Even where the employer’s actions do amount to a repudiatory breach of contract, the employee can only claim constructive dismissal if his or her resignation was caused by the breach. Thus an employee who waits too long before resigning, or otherwise acts in such a way as to indicate that he or she would wish the contract to continue, will be taken to have waived the breach and affirmed the contract. 16. Last straw doctrine - in Omilaju v Waltham Forest London Borough Council

2005 ICR 481

, CA, the Court of Appeal explained that the act constituting the last straw does not have to be of the same character as the earlier acts, nor must it constitute unreasonable or blameworthy conduct, although in most cases it will do so. But the last straw must contribute, however slightly, to the breach of the implied term of trust and confidence. In Kaur v Leeds Teaching Hospitals NHS Trust

[2018] IRLR 833

;

[2018] EWCA Civ 978

the Court of Appeal gave the following guidance as to the approach to be followed (para 55 per Underhill LJ): (1) What was the most recent act (or omission) on the part of the employer which the em-ployee says caused, or triggered, his or her resignation? (2) Has he or she affirmed the contract since that act? (3) If not, was that act (or omission) by itself a repudiatory breach of contract? (4) If not, was it nevertheless a part (applying the approach explained in Omilaju) of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a (repudiatory) breach of the Malik term? (If it was, there is no need for any separate consideration of a possible previous affirmation, for the reason given at the end of para [45], above.) (5) Did the employee resign in response (or partly in response) to that breach? Discrimination 17. Discrimination – we have considered guidance on the burden of proof in discrimination cases, in particular as referred to by the Claimant Nagarajan v London Regional Transport

[1999] IRLR 572

, Madarassy v Nomura International - 11 - plc

[2007] IRLR 246

CA, Ayodele v Citylink Ltd

[2017] EWCA Civ 1913

. In Hewage v Grampian Health Board

[2012] ICR 1054

, SC in which Lord Hope endorsed the following guidance given by Underhill P in Martin v Devonshires Solicitors

2011 ICR 352

, EAT: “‘the burden of proof provisions in discrimination cases… are important in circumstances where there is room for doubt as to the facts necessary to establish discrimination — generally, that is, facts about the respondent’s motivation… they have no bearing where the tribunal is in a position to make positive findings on the evidence one way or the other, and still less where there is no real dispute about the respondent’s motivation and what is in issue is its correct characterisation in law’. 18. Regarding PCPs, in Ishola v Transport for London

[2020] EWCA Civ 112

, the Court of Appeal confirmed that one off events are not necessarily provisions criteria or practices (i.e. PCPs) and must be examined carefully to see whether it could be said that they are likely to be continuing. 19. Relevant to time limits, section 123 EqA provides: 123 Time limits (1) Subject to sections 140A and 140B proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) then P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it. 20. Time limits for omissions - in the absence of a deliberate failure to act or an act inconsistent with the failure to do something so as to engage section 123(4)(a), - 12 - section 123(4)(b) requires a Tribunal to consider when the act not done might reasonably be expected to be done (Kingston upon Hull City Council v Matuszowicz

2009 ICR 1170

, CA). 21. Section 15 EqA provides: 15 Discrimination arising from disability (1) A person (A) discriminates against a disabled person (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. 22. EHRC Employment Code suggests that unfavourable treatment should be construed synonymously with ‘disadvantage’. At paragraph 5.7 it states: ‘Often, the disadvantage will be obvious and it will be clear that the treatment has been unfavourable; for example, a person may have been refused a job, denied a work opportunity or dismissed from their employment. But sometimes unfavourable treatment may be less obvious. Even if an employer thinks that they are acting in the best interests of a disabled person, they may still treat that person unfavourably’ Requirement for a Claimant to put a particular allegation in cross-examination 23. It is an error of law for the Tribunal to make a finding based on a part of the Claimant’s case that has not been put to the relevant Respondent witness (Secretary of State for Justice and anor v Dunn EAT 0234/16, per Simler P at paragraphs 26-29). In that case the employer successful appealed based on natural justice in relation to the direct discrimination findings on the basis that allegations were not put to the relevant witnesses. THE FACTS The Claimant’s disabilities 24. The Claimant Mrs Aylott was 50 at the time that her employment with the Respondent came to an end. She had lifelong Autistic Spectrum Disorder (“ASD”) (sometimes called Asperger’s Syndrome) which went undiagnosed until diagnosis on 30 July 2019. By September 2018, the Claimant herself clearly thought that this was a possibility and had raised this with the Respondent. Her sister had raised this possibility with her historically. - 13 - 25. Dr Kathryn Newns, Clinical Psychologist in her report dated 5 December 2019 gave the following opinion about the Claimant’s diagnosis: “Depressive order with anxious distress (recurrent, mild to moderate); adjustment disorder with mixed anxiety and depression (reactive to stress at work) and generalised anxiety disorder… Since February 2018 she has experienced a clinically significant mental health disorder… Her underlying anxiety is secondary to ASD. When her depression and anxiety worsen to clinically significant levels it is difficult for her to distinguish her depressive symptoms from anxiety. When her mental health is poor or she is very anxious, her ASD traits are more severe” 26. The Claimant is intelligent, hard working and plainly had a sense of humour. In common with some other high-functioning people with ASD she was able to “mask” the symptoms, meaning that she was generally able to present to colleagues as “neuro-typical”. She made friendships with colleagues. Manifestations of ASD were in the main subtle. She occasionally demonstrated naivety navigating the politics of the Respondent organisation and occasionally her communications were abrupt, particularly when she was under pressure. History 27. The Claimant originally trained as a physiotherapist, but had to leave this job because of an injury to her back after a serious injury in 1991 resulting in spinal fusion. 28. In mid-1990s the Claimant suffered from a period of depression which was triggered by back pain. She suffered from a period of post-natal depression in 2006-7. She continued to suffer back pain. She was prescribed Citalopram, an anti-depressant at this time. 29. In August 2007 the Claimant’s husband died and her grief was noted by her GP. She continued to take Citalopram for years after this point at a comparatively low dose and continued to report depression and back pain from time to time to her GP. Work for the Respondent 30. In 2009 the Claimant started working as an associate lecturer for the Respondent. Her areas of specialism included Human Resources and Employment Law. 31. In February 2013 it was noted by the Claimant’s GP that she was under lots of stress from working overtime. She was on 10mg of Citalopram and drinking three glasses of wine to help her stop work and sleep. - 14 - 32. On 17 May 2013 the Claimant filled in health declaration form as part of an application for a permanent position with the Respondent, which was received by the Respondent on 20 May. The significant aspects of this form are: Do you have any physical or mental impairment that could be classed as a disability under the Equality Act 2010? Answer: Yes You regularly take tablets or medicine? Answer: Yes codyromol [a reference to Co-dydramol which is paracetamol and codeine] and citropram [a reference to citalopram, which is an antidepressant] I was a physiotherapist. Injured back. Medically retired at 21 years. Had spinal fusion. Left with a degree of chronic back pain manager by a v. Low-dose of painkillers. I also take a low dose of antidepressant since my husband died. Do you suffer from any of the following… Anxiety, depression or any other nervous complaint? Answer: yes Early Employment History with the Respondent 33. On 1 September 2013 the Claimant commenced employment by the Respondent as a Lecturer. 34. In response to the medical declaration, on 20 September 2013 Tracey Seymour, HRBP wrote to the Claimant asking her to let her know if she had problems with either her back or depression. The Claimant responded the same day to say that if she felt she needed any help she would be in touch. She made reference to physio and the back condition but no reference to the depression at all.

THE FACTS

[35]Between 28 March 2014 -11 April 2014 the Claimant was signed off work for nine days by her GP with “low mood” and “not fit to work” due to problems outside work. At that time on 28 March 2014 an offer of ‘Employee Assistance’ made by Samantha Lavelle, Faculty Manager. This is a confidential helpline.

[36]On 7 April 2014 the Claimant resumed work on altered hours under GP certificate which recorded “has low mood which has affected her work and home situation”.

[37]In April 2014 the Claimant’s teenage son was diagnosed with ME.

[38]In approximately August September 2014 the Claimant’s then line manager Stuart Ansell briefed Kevin Sharman, a recently promoted Faculty Manager that the Claimant’s home circumstances were “complicated” and that she was “vulnerable”. No mention of a disability was made, nor any suggestion of ASD. We heard evidence from Mr Sharman, who was called by the Claimant as a witness.

[39]On 16 October 2014 the Claimant asked two colleagues for feedback to help her with a performance appraisal. Jennifer Park’s replied by email stating that the Claimant was hard working and was friends with many people and that she wanted - 15 - to be “perfect” in her work. She said that she was emotional and sensitive and overshared about her personal life. She also cautioned in respect of workload management about repeatedly saying “yes” and highlighted that she should raise it if the workload was too much.

[40]In August September 2015 Kevin Sharman became the Claimant’s line manager for a short period. He gave evidence to the Tribunal that this experience led him to conclude that what he had been told about her personal circumstances being complicated and her potential vulnerability were accurate. He observes however that these matters did not impact on her work. He kept a watching brief. He maintains that he “would have” handed this assessment of the Claimant to her new manager Mrs Juliette Wagner, but does not have a precise recollection of this. We find that any handover in this respect was limited. He did not make an OH reference. We find that there was not an obvious need to refer at this time.

[41]In November 2015 the Claimant was depressed and her GP recorded that she was “very busy with 2 jobs in London + home life”. Student Learning Manager

[42]On 1 December 2015 the Claimant was promoted to Student Learning Manager, reporting to Mrs Wagner. The Tribunal finds that the two of them established a rapport over some shared experiences. Each of them had significant domestic responsibilities as single parents and had children who were suffering significant health problems. They each had experience of bereavement. Given that both frequently worked remotely, the communication was often by telephone and Skype. We note Mrs Wagner’s evidence that she had a high opinion of the Claimant and found her hard-working and intelligence with a brilliant sense of humour, with friends at work and well-liked. The Claimant said during the grievance process she “had liked” Mrs Wagner. It seems unfortunately that these friendly relations between these two cooled towards the end of the Claimant’s employment with the Respondent.

[43]We note Mrs Wagner’s evidence that the way that the Claimant presented during the hearing in front of us, anxious and at times overwrought, was different to her ordinary workplace persona for the majority of the history of working for the Respondent.

[44]Mrs Wagner has experience of autism. She has an autistic son. She worked for a number of years on a doctorate relating to autistic spectrum disorder, albeit in an educational rather than a clinical setting.

[45]In the period March-May 2016 the Claimant experienced depression and stress which she related to a “busy work life”. Her son’s ME was noted by the GP.

[46]In Summer 2016 Ishan Kolhatkar joined the team as the Deputy Dean of Education Services. The Claimant found this addition to the team difficult, and felt somewhat threatened by Mr Kolhatkar’s relationship with Mrs Wagner and the fact that he was given some of “her” responsibilities with what she regarded as inadequate - 16 - consultation, whereas Mrs Wagner considered that this was another person to share the workload.

[47]On 9 January 2017 the Claimant was diagnosed with anxiety and depression. Long hours culture & flexible working

[48]In 2017 the Claimant was involved with a coordination group for a National Student Survey. Mr Shahban Aziz, Head of Student Experience, Operations wrote to various members of this group including the Claimant and Mrs Wagner a lengthy email which included the following comments on the Claimant and the team: “Liz has brought energy and vigour to the NSS team with support from an L&T and Schools perspective as well as speaking at staff conferences and calculating and sending out the weekly updates for a three month period which is no easy task. These are just a couple of the many dozens of skills and achievements of each member of the team. Every member of this NSS team works seven days a week and I have seen so much work from you on weekends – I acknowledge and appreciate all the work you do and I know that others do to. Anwar is currently working which (sic) in Poland, James has worked none-stop (sic) since the student away day, without exaggeration I’ve been working at least 60 hour weeks every week whilst in my four years at BPP and Liz I have seen the work you do from the very last email at night to the first in morning… … I don’t know what happened between 3pm and midnight but there seems to be a flurry of emails over an action plan that won’t be created until after we get the results on Friday…”

[49]The Tribunal find that there was a ‘long hours’ culture amongst the management team of which the Claimant was part. It is clear that emails were sent from early in the morning to late at night and on weekends and that this was normal.

[50]We also find that the Claimant in common with a number of her senior colleagues worked a significant number of days from home and that there was a degree of flexibility which enabled domestic and other responsibilities to be blended in during the working day. One of the results of these working practices was that for the Claimant it was difficult to ‘switch off’ from working or thinking about work. Claimant’s performance

[51]The Claimant was clearly highly regarded by her colleagues, even taking account of the somewhat effusive writing style of Mrs Wagner. On 2 August 2017 Mrs Wagner wrote to the Claimant “you are such a clever lady and a hard worker and an all round thoroughly decent person. X”

[52]In November 2017 the Claimant received a positive appraisal from Mrs Wagner: - 17 - “Liz is a very gifted author and writes excellent report for the Board and Academic Counsel. Liz has a great deal of expertise around retention and assessment and we are seeing the benefits of this expertise in the project Liz is running for us. This plays an instrumental role in getting us ready for our upcoming QAA visit. Liz is 100% dependable and extremely capable. Liz is a pleasure to have in our team and I hope I can work with her to nurture and refine her skills in order for her to build a leadership career within the HD sector. I have complete faith in Liz’s ability to lead and implement projects across the University and I know she always delivers to the highest standards and is always punctual.” The Claimant’s other work

[53]In 2017 and the early part of 2018 the Claimant was working in her own time of a revision of a book entitled “Employment Law”. We infer that this was more than simply a superficial revision. The Claimant told the publisher that it “really improved the book”. On 10 February 2018 she handed in the proofs of this work to the publisher. After this point there was further proofing to be done as well as obtaining endorsements. The process of working on a book must have required a substantial number of hours’ work to be fitted in around her other commitments. We accept the Claimant’s evidence to the effect that the Lion’s share of this work was completed by February 2018, but there was some work from this point onward.

[54]The Claimant also carried out marking for the Respondent’s business school. This was outside of her contractual responsibilities and she was paid separately, in essence as a freelance lecturer. Claimant’s anxiety about rumours of restructure

[55]In mid-November 2017 the Claimant attended an away day with the Respondent. The Claimant was told by a colleague to consider looking for a job as she had heard that there would be a restructure of Education Services. In the event this did not come to anything and appears to have been nothing more than workplace gossip. We accept however that at the time it caused the Claimant significant anxiety. Mrs Wagner told the Tribunal that she had also heard the rumour

[56]The Claimant mentioned her concern to Ihsan Kolhatkar. This was escalated up the management line with the result that the Claimant’s second line manager Tim Stewart rang her on her mobile to attempt to reassure her. Business School induction

[57]The Claimant was involved in putting together a three day induction for the Respondent’s Business School which took place on 23, 24 and 25 January 2018. She started this work in October 2017. She was in sporadic email correspondence with Sarah McIlroy, Dean of the Business School in the period 30 November to 12 January about the content of Ms McIlroy’s 15 minute welcome to incoming students. Initially Ms McIlroy seemed surprised that the Claimant was involved - 18 - preparing the Business School’s induction. Despite the Claimant chasing Ms McIlroy it was only on 12 January that the latter raised concerns that the content of the whole three day timetable on the basis that it did not align with the school’s strategy and approach. On the same day the Claimant write to Ms McIlroy: “We have been working on this since the autumn. In the HE landscape session I am covering the corporate dimension, Stuart will be mentioning apps, financial services and online. Any more that you wish to add cannot be added for this induction. I am sorry Sarah but I have been working on getting the induction together since October and this is my last available day to complete it.”

[58]The Claimant had run out of time because she was due to be on holiday the week commencing 15 January 2018.

[59]Ms McIlroy’s response was polite and she acknowledged her own fault for not having looked at the matter earlier. She suggested that the material be reviewed before the next induction .

[60]Mrs Wagner had been copied in on the email exchange and wrote a separate email to the Claimant on 12 January with the title “Please be careful”… “I don’t want us to come across as unhelpful. I know you’ve put a lot of work in here but we are a service to them and the last person I want to upset is Sarah M.”

[61]The Claimant contends that this was an instance where she was being told that it was inappropriate to say no. We accept that this is the way she may have interpreted it. In our view, objectively, the message being communicated was more nuanced. Mrs Wagner was acknowledging the work that the Claimant had done and was urging caution in appearing not to be responsive to a concern raised by Sarah McIlroy, the Dean of the Business School. The comment “the last person I want to upset” was clearly because of the seniority of this individual. We find that this was guidance that was expressed in a reasonable way.

[62]Mrs Wagner told the Tribunal that her view was that steps could have been taken within the Department to try to address some of Ms McIlroy’s concerns, and this did not necessarily need to be done by the Claimant. If that was her thought process, that is not clear from the short email she sent on 12 January 2018. Graham Geddes meeting planned then cancelled

[63]On 2 February 2018 the Claimant arranged a meeting with Graham Gaddes the Respondent’s CEO. Mr Gaddes was CEO of the Respondent and was three levels above the Claimant in the reporting line.

[64]The Claimant said that she felt that there was a disconnect between the way Mr Gaddes was being described by her immediate superiors and a video presentation - 19 - she had seen him deliver. She her told second line manager Vice Chancellor Tim Stewart “it is not meant to go above either you or Juliet, but I wanted him to know that I’m keen to be part of BPP University”. Mr Stewart replied in quite direct terms “I am sorry but I don’t think it is appropriate or sensible”.

[65]Following on from this the Claimant initially tried to cancel the meeting, although ultimately it did take place. Meeting with mentor

[66]On 9 February 2018 the Claimant met her mentor Professor Lynn Gell, Dean of the School of Nursing.

[67]We have not received detail evidence about this discussion. We infer that the Claimant continued to feel sidelined, in part because of appointment of Mr Kolhatkar and Mrs Wagner’s reallocation of responsibilities.

[68]The Claimant says that Ms Gell said that this was constructive dismissal, and that she should talk to both HR and Juliette Wagner to try to resolve this.

[69]The Claimant was away from work and sat as a non-legal member of the Reading Employment Tribunal in the period 5-8 February 2018.

[70]The Claimant then spoke to Steven Shaw (HR Business Partner) on 9 February 2018. Mr Shaw asked her whether she thought it was constructive dismissal. The Claimant did not answer. He told her that some managers need to be managed, and that the Claimant should speak to Mrs Wagner. He made the point that managers would take away work if an employee was not performing well. Graham Geddes meeting

[71]On 22 March 2018 the Claimant had a meeting with Mr Geddes. At this stage the Claimant felt reassured and looking forward to being able to fully contribute to the future of BPP.

[72]The Claimant seems to have recognised in retrospect that to arrange and press ahead with this meeting was politically naïve, insofar as it caused concern in the minds of the two layers of management above her. She did not fully appreciate this at the time. We accept that this may have been a manifestation of her ASD. Move to functional skills – April 2018

[73]In April 2018 a decision was taken to second the Claimant to ‘Functional Skills’. This was to support David Donnarumma, the Associate Dean Education Services in administration of the Respondent’s provision of basic levels of English and Maths.

[74]In respect of this move Mrs Wagner wrote on 18 April 2018 to the Claimant and Mr Donnarumma “Liz is going to be the fairy godmother”. It was not suggested by the Claimant that she interpreted this slightly curious comment in a negative way. - 20 - Based on Mrs Wagner’s generally positive comments about the Claimant in a professional context, we think the appropriate interpretation is that the Claimant was going to be seconded to an area, Functional Skills, that was somewhat unloved and needed a transformation.

[75]On 20 April 2018 the Claimant’s secondment to Functional Skills commenced.

[76]On 23 April 2018 the Claimant told Mrs Wagner about her symptoms of anxiety. The Claimant suggests that she was telling Mrs Wagner about mental health problems. Mrs Wagner appears to have related what she was being told to the pressure that the Claimant was under domestically. Mrs Wagner apparently offered to coach the Claimant to help her manage anxiety in meetings, although in fact this did not materialise. Also in this telephone call Mrs Wagner explained why Mr Kolhatkar was taking certain responsibilities, namely that he was “better with negotiation, getting on with other men, and his degree in IT provided him with digital skills expertise”. Mrs Wagner wanted the Claimant to specialise in student retention.

[77]Mrs Wagner admitted to us that by April 2018 she was aware that the Claimant was taking antidepressants. Working for David Donnarumma

[78]Although the Claimant continued to report formally to Mrs Wagner, during her secondment to Functional Skills, she had a ‘dotted line’ reporting line to Mr Donnarumma. It is clear that the Claimant felt that she developed a close friendship with Mr Donnarumma and that the breakdown of her employment relationship and the bringing of proceedings has caused her considerable distress.

[79]At around the time of the Claimant’s secondment in April 2018 Mrs Wagner told Mr Donnarumma that the Claimant was “mad as a box of frogs but a good worker”.

[80]The pattern of long hours and working outside of conventional hours continued. On 7 May 2018, at 08:20 on a Bank Holiday Monday Mr Donnarumma wrote requesting assistance with marking from the Claimant. She wrote back at 09:42 “I cannot get to this today but will tomorrow. I am marking for the business school today – they always seem to need me and I find it hard to say no.”

[81]The reference to business school marking was to work which we understand fell outside of the Claimant’s contractual responsibilities.

[82]Mr Donnarumma repeated to the Claimant that Mrs Wagner had said that the Claimant was “mad as a box of frogs but a good worker”. We heard conflicting and somewhat confused evidence in the Tribunal hearing as to the timing of this comment, which Mr Donnarumma admits he repeated to the Claimant.

[83]The Claimant’s pleaded case was that this happened in May 2018, although her oral evidence was that this was in June or July. - 21 -

[84]Ms Platt on behalf of the Claimant explored with Mr Donnarumma in cross examination whether in fact he had made the comment twice and on the second occasion in response to the Claimant raising the possibility that she had Asperger’s syndrome. We consider that if this had been true, this would have been highly likely to have been highlighted in the Claimant’s grievance or claim. The Claimant was experienced in matters of employment law and has plainly reflected carefully on the events in the last year of her employment. When the Claimant says that she “reflected on the comment”, we find this was a reflection on a comment made some time earlier. She does not put her claim on the basis that this comment was said by Mr Donnarumma twice, which would have been notable had it happened.

[85]The Tribunal finds that Mr Donnarumma repeated this comment in May 2018 and the Claimant reflected on it later. We do not find it was said in response to the Claimant raising the possibility that she had Asperger’s syndrome. Work pressure

[86]The Claimant was involved in producing a report for the Department of Education which was submitted on 25 May 2018. She felt under pressure as a result of this. On 23 May 2018 she suffered from pain along her left arm and chest which she thought were symptoms of a heart attack. She attended A&E. It seems however that these triggered by anxiety and would be better characterised as a panic attack. She was advised to reduce her workload.

[87]The Claimant spoke to Mrs Wagner by telephone and apologised for her “hypochondriac nature” and said that it was because she was tired and slumping at the computer as she worked. Mrs Wagner was given the impression that it was a musculo-skeletal problem. We find that she was entitled to take this at face value based on what she was told.

[88]On 26 May 2018 on the Saturday of a bank holiday weekend Mr Donnarumma wrote to the Claimant at 09:21 wrote to her requesting that she go back and sort out some data. The Claimant wrote back that afternoon “I can look at something over the weekend but trying to “chill” or work on the apprenticeship”.

[89]On 27 June 2018 in an email exchange in the evening Mr Donnarumma told the Claimant that he wasn’t feeling 100% and referred to the stress caused by a freelancer in the team dropping out. The Claimant was sympathetic in response and offered to deputise or support saying “I have an understanding of how you might feel”. Examination administrative error

[90]At the end of June 2018 it came to light that the Claimant had some months earlier made an administrative error regarding the timing of an examination which resulted in a maths exam paper not being provided. Sarah Oram, the Programme Lead Investment Operations at the Respondent’s Apprenticeship School complained to Mr Donnarumma by email. Her complaint related to the Claimant’s attitude to the situation rather than the mistake. In an email dated 28 June she said “I do - 22 - appreciate we are all under pressure in our roles, however we still need to remain professional”.

[91]Mr Donnarumma wrote to Mrs Wagner that day “Liz was exhausted and frazzled. I’ve told her to rest and that we can’t do everything.” Mrs Wagner replied “Oh dear poor Liz”.

[93]That evening at 22:52, the Claimant wrote to Mr Donnarumma regarding a request that had been made to her by a member of the Respondent’s apprenticeship team: “FYI – why I find this stressful: below. … I have drafted a number of emails to Juliette and you, but deleted them. I am feeling unsupported by Juliette – she needs to know the mess we are in, to be prepared for complaints as we are unresponsive to internal and external clients (a little) as we work out who the hell our students are. Outside of work life is very hard for me (but less hard than many) and you and your team give me most of what a good relationship at work would do. You make me laugh, when Jack [her son] is unlikely to get better soon; you make me forget, when I am lonely; you all do so very much – not what you are paid for but valued the less. Rest. Thank you.”

[94]Mr Donnarumma replied the following morning, Friday 29 June at 05:54 “Liz, hi, I know, I do understand. FS [functional skills] – you can’t do everything. We can’t do everything. It’s going to take time to sort out. 1. It is just work. 2. The learner comes first. 3. any complaints, I will deal with, that why I am here. 4. I will support you in this, if we need Juliette, we will ask her. You have a tough home life, as there is just you to care for a number of people. I get that. TODAY YOU REST AND LEAVE WORK. D” - 23 - Workload in Summer 2018

[95]The Tribunal accept the Claimant’s evidence that in the Summer of 2018 she was working 55 – 60 hours a week, including work at weekends and evenings.

[96]The Claimant took 2-10 August as holiday. She was due to have a further 7 days holiday. During the Summer the Claimant discussed with Mr Donnarumma their objectives to be achieved in August. He was due to fly abroad on holiday in August at the same time that she was due to be away. After discussing this with him she cancelled the holiday that she had planned to take in August and instead worked from home.

[97]On 20 July 2018 Mrs Wagner intervened when it was suggested by her deputy Mr Kolhatkar that the Claimant was at risk of losing holiday days when the next annual leave year commenced in September. She requested that 5 days were carried over “as she has worked such long hours and many weekends through the year and I did promise to fix this”.

[98]The Claimant continued to carry out teaching for the Respondent’s Business School on a ‘freelance’ basis for which she invoiced outside of her contract of employment. She had teaching responsibilities to teach 1 ½ hour sessions on 31 July, 7, 21 and 28 August teaching remotely from home. Domestically, as well has her son being unwell, her father’s health deteriorated during 2018 (sadly he eventually died in October 2019). It seems to us likely that the Claimant’s mother, who provided some help domestically, would have had to spend more of her efforts assisting with her husband’s care.

[99]In August 2018 Mrs Wagner says that she offered the Claimant part time working on the basis that she’d not had the support at home she’d previously had and her son was worse. Mrs Wagner said that her own manager had made a similar offer to Mrs Wagner herself to go part-time. She said that she didn’t consider that the Claimant was at crisis point but that she thought this was a helpful offer if the Claimant’s support network had diminished. Nothing appears to have come of this.

[100]On 12 September 2018 the Claimant had an email exchange with a member of teaching staff in which she encouraged him to seek advice about the possibility that he had Asperger’s syndrome. She told him that her nephews and brother-inlaw had it and that “we are all somewhere on the spectrum”. She admitted to him that she had “mental health and dyslexia issues”. Dyslexia has not formed part of the case presented to the Tribunal, but we infer from this email exchange that the Claimant was closely evaluating her own mental health and the possibility that she had ASD at this time. The September “complaint”

[101]On 12 September 2018 Mrs Wagner received an email from James Hammill, Director of Apprenticeships at the Respondent. This email was referred throughout the hearing as “the complaint”. - 24 -

[102]It is clear that the complaint was a pivotal matter in the Claimant’s perception of a breakdown of the relationship with her employer. In her oral evidence the Claimant repeatedly queried when asked about various events whether these were before or after the complaint.

[103]Mrs Wagner’s evidence to the Tribunal was that the complaint was about the Claimant being rude to a client on a webinar. In reality this appears to have been one of a number of concerns being raised about the Claimant by another department within the Respondent which was a ‘client’ of her department.

[104]These concerns had been raised with Mr Hammill by Laura Hopwood, Head of Programme Design in BPP Apprenticeships. Her email also of 12 September 2018 reads “Please see attached recent examples of functional skills issues as discussed, I’ve not watched the full webinar yet (on train and keep losing connection). I’m just concerned about Liz as it clear that she isn’t coping and some of these conversations are in front of associate staff to which is not really professional.”

[105]Attached to this email were 47 pages of emails, much of which could be, broadly speaking, characterised as the Respondent’s programmes team making requests on behalf of learners and the Claimant “pushing back” on behalf of the functional skills team on the basis of workload, other pressures (including her non-contractual marking responsibilities) and on the basis that her team is being asked to do things that others could do. Her tone was in some cases abrupt and it clear that she felt under pressure.

[106]For example, on 10 September 2018 in an email to Mr Donnarumma, Nadia Nasir, Susan Lawson (programme team) the Claimant explains the pressures on the functional skills team. In another email the Claimant was abrupt in tone with Ms Hopwood (programme team). She refers to workload being intense and suggesting that learners can do things themselves rather than requiring the involvement of the Claimant’s team.

[107]A further example was on 11 September when the Claimant says that she is not able to reply to a matter because she is marking and mentions that she will be marking into the evening on a holiday day. She complains about having to mark and “continue to abandon any holiday”, which we infer is a reference to cancelling one of her two periods of holiday in August. Also in an email exchange within the programmes team, it seemed that a client Unilever, had expressed some concerns about the amount of time that they are waiting for notification of results. It was suggested that 20 days was too long to wait.

[108]In an email on 12 September 2018 Sarah Oram, Programme Lead Investments Operators wrote “Liz [the Claimant] was almost manic on the phone conversation, I appreciate that they are understaffed, however we all still need to remain professional. When I spoke with David Donnarumma he said that Liz was “frazzled” and wasn’t really that concerned - 25 - and he did try to offer a solution, which I had to action with C&G [City & Guilds] myself. Consequences of the complaint

[109]Mrs Wagner forwarded the complaint of 12 September to Mr Donnarumma on 19 September 2018 with the line “Tim [i.e. Stewart, Vice-Chancellor] has taken it very seriously and I need a plan. Please could you review.”

[110]We infer from her oral evidence and this email that Mrs Wagner did not consider the detail of the complaint at any stage.

[111]In the afternoon of 19 September 2018 Mrs Wagner told the Claimant that a complaint had been made against her. She was told her to be careful of the tone and wording of emails. The email of complaint was never forwarded to the Claimant however, nor were the details ever shared with her.

[112]The plan that evolved was to smooth things over rather than meaningfully discuss the matter with the Claimant or consider whether there was a more fundamental problem. We find that this approach was expedient rather than malicious.

[113]The effect on the Claimant however was significant. She had worked extraordinarily hard under some pressure, particularly during the Summer of 2018. She was now told that there was a complaint about her but not given any specifics, and not given the chance to defend herself or to explain herself.

[114]On 19 September 2018 the Claimant was feeling angry and frustrated. She wrote at 19:30 to Mr Donnarumma “at the moment I think that I will be requesting my 9 days leave and time of[f] in lieu to cover about 4 hours each evening for the last month from Monday. I may feel differently but this is what BPP owes me.”

[115]He replied “Please leave your email and rest. I understand. We can speak tomorrow. D.”

[116]A few minutes later the Claimant wrote to James Newton in the Respondent’s learner support function (copying Mr Donnarumma), that she thought she has Asperger’s syndrome and “I have not wanted to go anywhere near this, but now seems to be the time, though I am not sure I am brave enough to.” Work pressure and drinking

[117]On 19 or 20 September 2018 the Claimant informed Mr Donnarumma in a telephone call that she was not coping and that she was drinking alcohol to help her cope with work pressure. Mr Donnarumma said that the Claimant was overreacting. The Claimant said that she was drinking too much and said this is what BPP [the Respondent] has done to me. The Claimant’s evidence to the - 26 - Tribunal was that she was drinking 4 – 5 gin and tonics every night to “selfmedicate”. We accept that the Claimant did flag up that she was drinking too much to Mr Donnarumma at this time, but do not consider that she told him that she was drinking during the day, which appeared to be the way that her claim was being put in the Tribunal hearing. Daytime drinking was not suggested by her oral evidence, nor by the references to drinking in the contemporaneous documentary evidence. The Claimant told Dr Chris Cull in her examination by him on 30 July 2019 that drinking held her “stop working”, by implication at the end of the working day.

[118]It was around this time that the Claimant reflected on the “mad as a box of frogs comment” and wondered if there was some truth in it.

[119]The Claimant took sick leave on 20 September 2018 but had two telephone calls on that day with Mr Donnarumma.

[120]On 20 September 2018 AT 13:14, Mr Donnarumma wrote in an email to Mrs Wagner: “Liz is very upset, a number of issues (senior people thinking bad of her, tired, workload, home). I think she will rest now, and I will sit and talk things through next week and tomorrow. We have an interim and longer term plan. She did want to know who, and what etc, but I explained this was not important – emphasised we need her to stay with us, we don’t want to lose her. She is tired and lonely, Juliet, and fills her life with work, I think.”

[121]A bit later at 15:43 Mr Donnarumma wrote to Mrs Wagner “Spoke to her again. Feeling better, Lamprini replacement will help. Have sorted out some support, and spoken to various people in apprenticeships, who are fully supportive of Liz (shared this with her). Taking today and Friday as sick days and will be there on Monday.

[122]Mrs Wagner wrote back to Mr Donnarumma “well done you deserve the Nobel Peace Prize”.

[123]On 26 September 2018 Emily Oswald, Head of Group Apprenticeship Operations acknowledged that there had been tensions between the teams but referenced a more positive working relationship and in particular thanked the Claimant. The Claimant responded to Mr Donnarumma and Mrs Wagner “Thank you for passing this on, today of all days [it was an Ofsted inspection] To two good colleagues and great friends Lx” - 27 - Ofsted inspection

[124]Mr Donnarumma’s written evidence was that an Ofsted inspection was announced on 28 September 2018 and that there was very little preparation that could be done. We find that this is inconsistent with the contemporaneous evidence.

[125]On 24 September 2018 Mr Donnarumma wrote to the Claimant and a colleague Mr Blanco “Ofsted is coming in Wednesday and Thursday. Help!!!!”

[126]The Ofsted inspection actually took place on 26-27 September 2018.

[127]We accept the Claimant’s evidence that it was “all hands to the pumps”. She worked on making sure that her department’s data matched that which was on the Self-Assessment Report (SAR) which OFSTED would view. She helped provide information to a Skills Development Coach whose call with a learner was going to be observed.

[128]In an email sent at 06:42 on 26 September (i.e. the day before the inspection) Mr Donnarumma thanked the Claimant for “all your support yesterday”. In short therefore, we find that there was work to be done and that the Claimant assisted with it. Sick absence

[129]On 30 September 2018 the Claimant requested a psychological assessment from Dr Emma Cosham, a Chartered Clinical Psychologist.

[130]Mr Donnarumma arranged for Mark Kidd to start supporting the Claimant from 1 October 2018 onward. In fact she seems to have been off sick during the first week of October.

[131]On 4 October 2018 the Claimant sent an email to Christopher Costigan, Associate Dean Partnerships about an upcoming City & Guilds inspection “I like you very much Chris, but must [not?] try to expect you to be an expert in everything! I also will need to try to hide my anxiety so that it is less noticeable to others …. I have a challenging personal life and though happy to do it I have I believe worked too hard over the summer – neither of these will change in the foreseeable future” [671]

[132]In an email dated 6 October 2018 (a Saturday) the Claimant wrote to Mr Donnarumma about cover: “David, I am working today because I have to cover work from yesterday and that was only one day off. We are chronically understaffed and this has affected my health.”

[133]By 8 October 2018 the Claimant was off sick and wrote: - 28 - “I David I am going to take today off with stress and call the Dr to make an appointment. I will join the board this afternoon.… … Someone will need to cover functional skills while I am off – I am not sure how long I will be signed off for - I have copied Juliette as she is my manager and Avril as you are busy with the Phoenix project. Sorry”

[134]Also on 8 October 2018 Mr Donnarumma wrote to Avril Wood in the FS team “Liz is struggling personally and professionally at the moment, so we need to work out how to support. Mark is doing 15 hours per weeks of support. I think we are going to need Dave to do some extra support. If we get someone else in to help they will be new and temporary.”

[135]Again on 8 October 2018 an email was sent to the Claimant from a resource planner in the School of Business and Technology Resourcing with regard to some sessions that were being cancelled. The Claimant responded on 9 October 2018 to say that she was off sick.

[136]On 10 October 2018 the Claimant emailed Mr Donnarumma stating that she was resting (she was still on sick leave), but dated that “.. But there are a couple of worries I have. I am resting but concerned that I will return to work with a great deal to catch up with and there will be no extra support. I will need to know what is in place to stop me being ill again. I am also worried that this mental health issue will be seen as weakness, as will any mistake I have made while understaffed and the exceptional circumstances of the report for DoE report, Pics final list, Ofsted and then City & Guilds over the summer, will not be taken into account. I need to know my mental health will be protected”

[137]Mr Donnarumma wrote to the Claimant on 11 October 2018 in an email entitled ‘FOR WHEN YOU ARE BACK’ “When you get back, and we draft a ML description for FS. I have suggested Mark picks up 20-hours a week if needed”.

[138]On 15 October 2018 the Claimant signed off by her GP as only being fit for 2 – 4 hours’ work per day. The dosage of sertraline that was being prescribed to her was increased to 200mg per day.

[139]On 18 October 2018 Mr Donnarumma wrote to the Claimant: “Have asked Dave to cover what you are away. Mark is freelancing for us. A little slow, but getting there. Have put in for permanent extra help, let see. Admin coming and we have Mark. Get well please and don’t worry.” - 29 -

[140]On 19 October 2018 wrote with an update to Mr Donnarumma reporting “heightened anxiety” and the steps she is taking to try to reduce this.

[141]On 21 October 2018, at a time when she was supposed to be working a maximum of 4 hours a day the Claimant emailed about work related matters at 22:43 on Sunday night.

[142]On 24 October 2018 the Claimant was signed off until 16 November by her GP as being fit for work for only 2 hours per day “stress”.

[143]On Saturday 27 October 2018 the Claimant wrote to Mr Donnarummar and Mrs Wagner in the context of a request by Kevin Couplant, Head of the Apprenticeship School for some management information from the FS team: “If I am going to be able to protect my mental health on return I need to have the ability to say “no”. I have not replied again to Kevin, as I leave this to David to boot. David this is non-negotiable until we have another person as well admin. I am not going to be convinced by David that it will be better when I am back and we have two days of admin. If I cannot say “no” then I will not be safe in this environment. Juliette you asked what I needed. I need to be listened to and asked not to promise things that are not possible.”

[144]On 29 October 2018 the Claimant reported not feeling well enough to work today and feeling anxious. Telephone call with Steven Shaw

[145]On 29 October 2019 the Claimant had a telephone call with Steven Shaw, HRBP, following her email request for this.

[146]Mr Shaw told her that someone her age and experience should be able to prioritise and manage their workload. Save for the reference to the Claimant’s age, the Respondent admits that these words were said. Mr Shaw did not give evidence to the Tribunal. We have heard the Claimant’s evidence, which we accept on the point in dispute. Panic attack

[147]On 30 October 2018 the Claimant drove to the Respondent’s office in Shepherd’s Bush. She says she had a panic attack while driving. It is notable that despite being in email correspondence with Mr Donnarumma the following day the Claimant did not make any reference to this, although she did tell him in an email sent at 21:29 that she was thinking about completing work over the weekend, in contravention of her GP’s recommendation.

[148]Mr Donnarumma forwarded the Claimant’s email of 1 November 2018 Steven Shaw and Juliette Wagner stating - 30 - “I am a little concerned here about what to do…. We originally agreed Liz would work between 10 and 12 (2 hours everyday as agreed with her GP. She is now working much later in the evening, and I am concerned. I have put extra staff in place to support her being on sick leave. It is making it difficult for everyone to work like this. I would like to advise her to rest, and we can pick things up now, but I am apprehensive about how to proceed, and the knock-on effect onto Liz. Please can you advise.” Contractual sick pay

[149]On approximately 3 November 2018 Mrs Wagner decided that the Claimant should not be offered contractual sick pay in excess of 15 days based on the fit notes saying “stress”

[150]She justified this in her oral evidence as a decision taken ‘holistically’. However, it was clear from her evidence that she took this decision in advance of the meeting on 6 November 2018 at which the Claimant gave more detail of her health difficulties including suicidal ideation (dealt with below). What she did not do is reconsider that decision once it had been relayed to her that the Claimant was experiencing health difficulties and reporting suicidal ideation.

[151]On 4 November 2018 the Claimant wrote to Mr Donnarumma in an email that she needed to be left alone to recover quietly.

[152]Mr Donnarumma replied “If you are not well enough to attend, then you shouldn’t. I have copied in Steven from HR, to see what he thinks.”

[153]On 4 November 2018 the Claimant requested a referral to Occupational Health (“OH”) to Mr Donnarumma, Mrs Wagner, Dave Blanco and Steven Shaw: “I really just want to see OH. And I feel that I need to defend my reputation, to say that this could have happened to anyone working at this intensity and that I have done much more than would be expected of anyone. … Then I can rest, knowing I have said what I needed to, perhaps (certainly) in a poor way, but hopefully understood. Please listen as though I like you I feel that you do not listen or hear me, or I am long-winded or unclear, and cannot get that message across. … I will talk to my GP tomorrow and hope that I am well enough to get my information to you and to work towards returning – I STRONGLY want return to BPP, I have enjoyed working with BPP and want very much to continue to make a positive difference”

[154]On 5 November 2018 the Claimant had a call with Mr Mizan Ur-Rahman (HR). She told him that she was not coping and that she was drinking alcohol excessively - 31 - to cope with work pressure. The Claimant told him that she would be prepared to accept a reduction for a reduced role. Sickness review meeting 6 November

[155]On 6 November 2018 the Claimant attended a Sickness review meeting with Mr Donnarumma and Mr Shaw. There is a significant dispute between the parties as to what was said.

[156]The Claimant produced a two page note of this meeting on 11 November 2018.

[157]Mr Shaw produced a note of this meeting, a draft of which he sent to Mr Donnarumma for approval on 3 December 2018. Mr Donnarumma did not amend or produce his own notes. Mr Shaw sent it to the Claimant on 6 December 2018 a month after the meeting. The Claimant contends that this was materially inaccurate and only produced after her solicitor wrote letters on 23 and 26 November 2018. We have only seen the second of these as the first contained ‘without prejudice’ proposals.

[158]Mr Donnarumma’s oral evidence to the Tribunal was that there was a decision taken at the meeting to refer the Claimant to Occupational Health after the meeting. This is at odds with Mr Shaw’s note which Mr Donnarumma did not challenge which suggests that the Claimant was offered a referral to Occupational Health but she confirmed that she was receiving counselling already and thanked them for the advice. We also find it was unlikely given the content of Mr Shaw’s letter of 6 December 2018 which said: “We will some point need to consider a referral to Occupational Health if you decide not to take up the early intervention service, for their recommendations on how we can support you to return to work.”

[159]It seems unlikely that if a decision had been taken to make a referral to Occupational Health Mr Shaw would have written in such terms. We are therefore left with two possibilities. Either occupational health was not mentioned at all (the Claimant’s case), or alternatively it was mentioned but the Claimant said she was already receiving counselling. That latter possibility seems unlikely given that the Claimant had written two days earlier that she wanted to see OH (see above). The Claimant raised in her grievance on 11 January 2019 “I wanted to ask to see Occupational Health, but this was not offered”.

[160]We find that the following matters were said at the meeting: 160.1. Mr Shaw told the Claimant that there was no phased return to work policy. This was despite the fact that she was on a phased return to work at this time. 160.2. Mr Shaw told the Claimant that she would only receive 15 days’ full pay and discretion would not be exercised to extend sick pay with the result that she would only receive statutory sick pay after 15 days. - 32 - 160.3. The Claimant told them that she had been working 55 – 60 hours a week. Mr Shaw said that many managers were working similar hours routinely to get jobs done, but there were peaks and troughs. The Claimant disagreed with this. 160.4. The Claimant said that she had suffered a breakdown, felt over-loaded and could no longer cope. She mentioned being a widow and raising two children. Mr Shaw suggested that her feelings of stress were based on her perception, Mr Donnarumma had made various supportive interventions and there were various ‘external factors’. 160.5. The Claimant said that she was experiencing suicidal thoughts and that the statutory sick pay of £80 per week was not enough. The Claimant said that she had experienced panic attacks while driving, which is why she had asked her Vicar to drive her to the meeting and he was waiting to take her home. She made a reference to contemplating deliberately crashing the car to stop how she was feeling. When this was queried she said that this was a thought she’d had the previous day and she would not do it [797]. 160.6. Mr Shaw proposed a settlement agreement and re-engagement as a contractor unprompted neither by the Claimant nor by Mr Donnarumma. The Claimant was distressed at the prospect of losing her employment.

[161]We find that there was no reference to an OH referral in the meeting. Further sick absence

[162]On 16 November 2018 the Claimant was signed off as being unfit for work for 4 weeks with “anxiety with depression”.

[163]On 21 November 2018 the Claimant received an email from Rhiannon Webb, Head of the Respondent’s Operations and Recruitment about a DBS check.

[164]On 26 November 2018 the Claimant’s solicitor wrote a letter to the Respondent requesting that arrangements could be made to redirect calls for the Claimant from staff or students.

[165]The Claimant had a Psychological Assessment on 26 November 2018 with Dr Emma Cosham, a Chartered Clinical Psychologist.

[166]On 26 November 2018 Mr Shaw expressed alarm about the final tone of an email sent by the Claimant to Ms Webb which said among other things “I will miss you”. He wrote “it might just be a badly worded email from her, given her state of mind, would prefer to check”.

[167]In response to the Claimant’s email to Ms Webb, Mr Shaw called asked her whether she was resigning. - 33 - December 2018

[168]On 10 December 2018 Mr Shaw called the Claimant and left a message on her mobile.

[169]On 14 December 2018 the Claimant signed off work for a further two months, again citing ‘anxiety with depression’. The Respondent accepts that it had knowledge of the Claimant’s condition of depression and anxiety at from point.

[170]By a letter dated 18 December 2018 Mr Shaw wrote to the Claimant confirming that a deduction was being made from her pay for the period where she had worked less than her contractual hours. Grievance

[171]On 11 January 2019 the Claimant submitted a grievance referring explicitly her disability and her rights under the Equality Act 2010 and specifically(i) a breach of section 15;

(ii) a failure to make reasonable adjustments; and

(iii) victimisation. She referenced suicidal thoughts. She wrote “Both Juliette Wagner and David Donnarumma were kind, considerate and tried to support, but the ‘can do’ culture and wish to protect me from HR influenced their decisions”.

[172]In respect of sick pay she wrote “I believe I was treated differently because my issue was a mental health issue”. She wrote “I was relying on alcohol to support me”.

[173]Ms Joanna Preston-Taylor, Director of Business Improvement was appointed to hear the grievance, with the help of Catherine Baxter (HR).

[174]On 16 January 2019 Ms Baxter wrote to the Claimant purportedly offering to refer the Claimant “again” to OH, which in the assessment of the Tribunal mischaracterises the content of Mr Shaw’s letter dated 6 December 2018, since the reference to the ‘early intervention service’ in that letter quite clearly related to an insurance policy relating to Canada Life rather than the Respondent’s OH service.

[175]By an email dated 20 January 2019 the Claimant suggested that it was very late in the day to send her to OH. She requested her solicitor be an intermediary for correspondence.

[176]In an email to Ms Baxter dated 24 January 2019 the Claimant changed her position regarding the involvement of Occupational Health: “I do not feel an OH referral will be beneficial to me at this stage, and in fact believe it will be detrimental to my health. However I am willing to look at the details of how an OH referral could be made so I am reflect on whether it is something that I could manage.”

[177]By a letter dated 31 January 2019 the Claimant’s GP wrote to the Respondent to request that all communication be directed via her solicitor because direct contact - 34 - was causing the the Claimant to have panic attacks, increased anxiety and suicidal ideation.

[178]On 1 February 2019 the Claimant contacted ACAS for Early Conciliation. Occupational Health referral

[179]On 6 February 2019 the Claimant was finally referred to Occupational Health by Ms Baxter, leading to an examination 12 February 2019. Gillian Gladwell, an Occupational Health Advisor concluded that: 179.1. The Claimant had a severe depressive illness with anxiety and panic attacks for which she was under the care of her GP and a clinical psychiatrist and was on medication. This did amount to a disability falling under the Equality Act 2020. There were thoughts of self-harm and suicidal ideation. She was drinking relatively heavily. 179.2. She had significant and long term mental health issues, most of which stemmed from the tragic and sudden death of her husband in 2007. Additional causes of personal stress were the ill health of her son and her elderly father who was at that time in hospital, “but it also appears that there is allegedly, a significant work related component to this as well”. 179.3. She had been struggling with her work for some time. She felt unsure of her role. She was working longer and longer hours and had become mentally and physically exhausted. 179.4. She was not currently fit for her role. Her return to work was likely to be dependent on the investigation and result of the grievance. 179.5. She could not communicate directly with the Respondent in relation to her grievance but could via writing or a representative to attend meetings on her behalf. Cost of Claimant’s absence

[180]On 27 February 2019 Mr Donnarumma wrote an email to Ishan Kolhatkar which indicated that the Claimant’s absence was costing £3,000 per month from October amounting to approximately £12,000 to date. This email was not sent to the Claimant at the time, but she subsequently read it as part of a Subject Access Request which she received on 20 March. Investigation of the grievance

[181]Mr Donnorumma was interviewed by Ms Preston-Taylor in a telephone call on 28 February 2019. The basis of this appears to be a handwritten single page on which approximately a dozen questions are written. We do not appear to have received the answers given by Mr Donnarumma. - 35 -

[182]The equivalent list of questions for Mrs Wagner contained six questions. Her answers have not been supplied to us.

[183]The Claimant supplied written responses as part of the grievance investigation on 28 February 2019. She wrote “I believe that Juliette Wagner was concerned about me, but that her prior experience of HR was that they very readily offered to remove employees. I believe that she thought she was protecting me”

[184]Ms Preston Taylor interviewed Mr Shaw and Mr Blanco on 7 March 2019.

[185]By a letter dated 8 March 2019 the Claimant’s grievance was rejected. Ms Preston-Taylor concluded that: 185.1. First, at no stage had the Claimant requested an Occupational Health referral from her line manager. This was factually incorrect since on 4 November, two days before the Sickness Review Meeting the Claimant had requested “I really just want to see Occupational Health” in an email to Mr Donnarumma, Mr Shaw and Mrs Wagner. 185.2. Second, the Claimant had not been treated differently to Ruth Miller and Simon Atkinson. In fact however, it seems that both of these individuals had received the benefit of discretionary contractual sick pay after 15 days absence, in contrast to the Claimant. Grievance appeal

[186]On 11 March 2019 the Claimant appeal against the grievance outcome. She requested a transcript of Ms Preston-Taylor’s interviews. These notes should have formed part of disclosure, given that the adequacy of the investigation was in issue between the parties. Such notes as were produced were provided on last day of the Tribunal hearing and only when expressly requested by the Tribunal.

[187]The grievance appeal letter specifically highlighted that the Claimant’s solicitor had already highlighted that she did not continue to receive phone calls from staff and students on her mobile phone, yet she continued to do so.

[188]On 11 March 2019 Mr Donnarumma immediately wrote to staff and students asking them not to contact the Claimant whilst she was off on sick leave.

[189]On 13 March 2019 the Claimant was signed off work for a further month with anxiety with depression.

[190]On 15 March 2019 the ACAS certificate was issued.

[191]The Claimant was provided with details of other employees who had received discretionary sick pay in an email dated 3 April 2019 from Mizan Ur-Rahman (HR). The reasons given in these cases were: - 36 - 191.1. November 2018 – full pay for 13 weeks for hernia operation and sepsis; 191.2. November 2018 – breast cancer full pay ongoing with 2 monthly reviews; 191.3. November 2018 – full pay for 3 days following a heart attack; 191.4. November 2018 – full pay for 4 months for stress given that her husband had throat cancer; 191.5. January 2019 – full pay for 6 weeks for preventative cancer operations.

[192]On 10 April 2019 Garry Buick updated that Claimant that he was carrying out an investigation of the grievance appeal.

[193]The Claimant submitted her first claim to the Employment Tribunal on 15 April 2019.

[194]In mid-April 2019 the Claimant was receiving phone calls from Exam Centre staff. Mr Shaw wrote an email on 17th April requesting that they made contact with others instead.

[195]On 23 April 2019 there was an outcome to the grievance appeal. The outcome was to reject the appeal, and specifically the Claimant’s criticism that the original grievance investigation had been a “superficial” review. The conclusion appeared to acknowledge that the Claimant had been under pressure with a significant workload and long hours. This was seen as being the background to elements of the Claimant’s role being allocated to others to attempt to manage the Claimant’s workload. The final conclusion was “Having reviewed and discussed the nature of this complaint my opinion is that it is now best dropped.” Resignation

[196]In a letter dated 25 April 2019 the Claimant resigned. In a letter that was little over four pages of fairly close type she complained of discrimination and many of the allegations which are now the substance of her claims.

[197]On 9 May 2019 the Claimant submitted a second claim bringing a claim of constructive unfair dismissal. CONCLUSIONS Disability & Respondent’s knowledge

CONCLUSIONS

[198][Issue 1] C suffers from the following mental impairments which have a substantial and long term adverse affect on C's ability to carry out normal day-to-day activities: - 37 - 198.1. Autistic spectrum disorder; 198.2. Anxiety (and related irritable bowel syndrome); and 198.3. Depression.

[199]C was disabled over the whole time of her employment with the Respondent and many years before because of her longstanding mental health conditions of ASD, anxiety (and related IBS) and depression. 200. [Issue 3] When did R have knowledge of C's disability?

[201]The Claimant alleges that the Respondent had actual knowledge from 1 September 2013.

[202]The Respondent denies having knowledge of the Claimant's condition until 14 December 2018, in respect of depression and anxiety, 6 August 2019, in respect of ASD and 13 September 2019, in respect of the anxiety-related IBS. The IBS has not been a feature of this case and we therefore do not need to resolve this part.

[203]Based on the telephone conversation between the Claimant and her line manager Mrs Wagner on 23 April 2018 (considered in the context of the level of communication between the two at that stage) we find that the Respondent from this point in time onward had knowledge of the Claimant’s taking anti-depressants and symptoms of anxiety and depression.

[204]In respect of the Claimant’s Autistic Spectrum Disorder, we note that the Claimant did not receive any formal diagnosis until 30 July 2019, which was significantly after her employment had come to an end. To the extent that she may have had suspicions, we find that the Claimant was adept at masking the symptoms outside of periods of particular stress. This masking was referred to by the Claimant herself in her oral evidence but also by Dr Cull in his report dated 20 August 2019 following an assessment on 30 July 2019 [162].

[205]We find that based on the Claimant’s email to her “dotted line” manager Mr Donnarumma on 19 September 2018 in which she raised the possibility of that she had Asperger’s syndrome, the Respondent was on notice of and had constructive knowledge of the Claimant’s ASD from this point onward. Jurisdiction

[206][Issue 4] In respect of C's allegations of discrimination predating 02.11.18, did these form part of a continuous course of conduct continuing to that date?

[207]The Claimant complains about: 207.1. Alleged failures to refer her to Occupational Health in 2013, in March 2014 and in Autumn 2015 (Issue 9d); - 38 - 207.2. Stuart Ansell (Operations Business School) in the Autumn of 2015 (Issue 9c).

[208]Matters in 2013-2015 are very significantly out of time. We do not find that there are continuing acts to bring these matters in time.

[209]As to the harassment claim and the ‘mad as a box of frogs’ comment made by Mrs Wagner in May 2018 and repeated around that time by Mr Donnarumma, we do not find that that there was a continuous course of discriminatory conduct which connects this to the actions of Mr Shaw in November 2018. 210. [Issue 5] If not, is it just and equitable to extend time?

[211]The Tribunal has a wide discretion to extend time under section 123 EqA (Abertawe Bro Morgannwg University Local Health Board v Morgan

2018 ICR 1194

, CA). There is an onus on a Claimant to convince a Tribunal that it is just and equitable to extend; the exercise of this discretion is the exception rather than the rule (Robertson v Bexley Community Centre t/a Leisure Link

2003 IRLR 434

, CA).

[212]The Claimant has at all material times had personal expertise in employment law. In respect of that the earlier period this is not a case in which she has discovered matters about which she was unaware at the time, nor a situation in which the Respondent concealed matters. Considering all of the circumstances, we do not find that it would be just and equitable to extend allow the Claimant to bring claims about matters in 2013-2015 that are very significantly out of time.

[213]Turning to events in 2018, and particularly the “box of frogs” comment made about her and then repeated to the Claimant in May 2018. The three month time limit expired in August 2018 for events in May 2018. We have taken account of the fact that the Claimant did not reflect upon the significance of this comment until September 2018. Had the claim been presented in September or very shortly thereafter, there might be an argument for a short extension.

[214]The Claimant waited however until 1 February 2019 to commence the ACAS early conciliation process and presented her first claim on 15 April 2019. The onus is on a Claimant to show why time should be extended. No particular good reasons have been advanced in this case why the claim was presented late respect of matters in May 2018, nor particular reasons why we should extend time. The Claimant had expertise in employment law. We can see from the correspondence that she had instructed a firm of solicitors by 23 November 2018.

[215]There is inevitably prejudice to the Respondent caused by delay. Although the Respondent’s witnesses have been able to give evidence about this comment, the degree of confusion over the timing and context of Mr Donnarumma repeating the “box of frogs” comment suggests that memories have faded.

[216]We do not find, considering all of the circumstances, that it would be just and equitable to extend time. - 39 - Direct disability discrimination (section 13 EqA)

[217][Issue 6] Has R treated C in the following ways? [Issue 7] If so, in respect of each treatment, was C treated less favourably than an actual or hypothetical comparator? Used this C relies on Simon Atkinson and Ruth Miller as actual comparators in relation to 6a – c. [Issue 8] Was C's disability the reason for any less favourable treatment?

[218]These three issues are dealt with together for convenience under each allegation below. 219. [Issue 6a] C was not offered more than 15 days contractual sick pay. It is not in dispute that the Claimant did not receive more than 15 days contractual sick pay.

[220]Was this because of the Claimant’s disability? We do not consider that the reason for this treatment was the Claimant’s disability. This was the decision of Mrs Wagner. She appears to have been sceptical about whether the Claimant’s sickness absence was because of a disability, and found it difficult in her oral evidence to the Tribunal to acknowledge that the Claimant had symptoms which might amount to a disability. She characterised the depression as merely a reactive sadness to events.

[221]The Respondent’s policy is only to pay contractual sick pay for longer than 15 days in “exceptional circumstances”. The stated reason by the Respondent for not exercising the discretion to pay the Claimant contractual sick pay for longer than 15 days was that her condition was not deemed to be life-threatening. Mrs Wagner said that it was a decision taken “holistically”

[222]In any event, while this decision on the part of Mrs Wagner might be criticised, we do not think it could be characterised as “because of” the Claimant’s disability.

[223]We note that the “comparators” in this case are included in a list of five individuals who did receive the exceptional benefit of contractual sick pay for longer than 15 days. The first individual had hernia operation and developed sepsis. This person may or may not have been disabled. The second individual with breast cancer was disabled. The third individual who suffered a heart attack may have been disabled, although this is not entirely clear. The individual who suffered stress because her husband had throat cancer was probably not disabled herself although her husband obviously would be. The individual undergoing preventative cancer operations may not be disabled if they did not have cancer, although they would be disabled if they already had cancer. This comparative exercise does not lead us to the conclusion that disabled or nondisabled status is the reason why decisions were being taken generally within the Respondent in respect of discretionary sick pay.

[224]As to the question of “life threatening”, on the Claimant’s own version of the discussion on 6 November 2018 reference to suicidal ideation was qualified by her and explained to be a thought she had had the day before, she clarified “I would not do it”. We do not consider therefore that this should be characterised as lifethreatening in the same way as post-operative sepsis or cancer is in the case of other employees who did receive contractual sick pay. - 40 -

[225]We do however find that this decision, and the failure to reconsider the decision following the meeting on 6 November 2018 did contribute something to the fundamental breach of contract see below. 226. [Issue 6b] C was informed she could not have a phased return to work by Steven Shaw / David Donnarumma on 6 November 2018.

[227]The grievance appeal outcome contained an acknowledgement of sorts that the communication on this point had not been clear. The Respondent’s policy appears to be that there is no standard return to work policy, but that each case is dealt with on its merits. The information given by Mr Shaw on 6 November 2018 was incorrect insofar as the Claimant was already on a phased return to work.

[228]We do not find that this miscommunication or poor communication about the policy in itself was sufficiently serious to amount to less favourable treatment. In any event we do not find that it was because of the Claimant’s disability. 229. [Issue 6c] C's depression was not considered "life threatening" despite the fact that she experienced suicidal ideation which was known by Steven Shaw and David Donnarumma.

[230]We repeat the comments under issue 6a about the comparators and the question of “life threatening” above.

[231]We do not find that this amounted to less favourable treatment because of disability. 232. [Issue 6d] In about May 2018 Juliette Wagner said that the Claimant was, "Mad as a box of frogs, but a good worker". [Issue 6e] Later in about May 2018 David Donnarumma reported Juliette Wagner as having said that the Claimant was, "As mad as a box of frogs".

[233]The Respondent accepts that these comments were made. We consider that these comments should properly be considered as harassment under section 26 EqA rather than direct discrimination, but are in any event are out of time. 234. [Issue 6f] In about 29 October 2018 - Steven Shaw rebuked the Claimant by stating that someone of the Claimant's age and experience should be able to prioritise and manage her workload.

[235]The Respondent denies that Steven Shaw referred to the Claimant's age or that the comment amounted to a rebuke but otherwise accepts that the comment was made.

[236]We consider that this was a crass and insensitive comment made to an employee who was plainly at this stage struggling and was unwell. We do not consider however that this comment was made because she was disabled. On the contrary it was a comment made with a lack of awareness as to the Claimant’s disability.

[237]We do however find that this comment did contribute something to the fundamental breach of contract below. - 41 - 238. [Issue 6g] On 6 November 2018, Steven Shaw stated that many managers were working similar hours within the University and words to the effect of "while this was clearly not their contractual hours, managers routinely worked them to get jobs done as part of their management responsibilities". The Respondent accepts that the comment was made.

[239]Again, this may be an insensitive comment to have made at this time, although no doubt Mr Shaw regarded it as plain speaking to point out that other managers were typically working in excess of their contractual hours. As we have found above, there was a culture of working long hours amongst managers.

[240]We do not consider however that this comment was made because she was disabled. We find that it was a comment that he might have made to a nondisabled colleague.

[241]We do however find that this comment did contribute something to the fundamental breach of contract below. 242. [Issue 6h] Whilst the Claimant was off sick because of depression / anxiety she was told by Steven Shaw that she was costing the Respondent £3k per month for being off sick and was made to feel worthless and a burden (2019).

[243]While the cost of the Claimant’s absence was referred to in an email to which she was not a party, we have not received sufficient evidence from which we could conclude that Mr Shaw made this comment directly to the Claimant. The Claimant has not satisfied the initial burden of proof on her. Discrimination arising from disability (section 15 EqA)

[244][Issue 9] Has R treated C in the following ways? [Issue 10] If so, in respect of each such treatment, was it unfavourable? It is convenient to take these issues together. 245. [Issue 11] If so, in respect of each unfavourable treatment, was it because of something arising in consequence of C's disability?

[246]The structure of the agreed list of issues is that allegations 11a, 11b, 11c etc describe the ‘something arising in consequence of the Claimant’s disability’ which correspond to the alleged unfavourable treatment described at 9a, 9b, 9c respectively. Accordingly we have considered cause and effect together in each case. 247. [Issue 11a] Alleged ‘something arising’: Her reliance on alcohol to manage her feelings of anxiety

[248]While we accepted the Claimant’s view that the Claimant was drinking too much on occasions we are not satisfied that this should be characterised as “reliance on alcohol”. She was drinking too much at the end of the day. This could be ‘something arising’. - 42 - 249. [Issue 9a] Alleged ‘unfavourable treatment’: A complaint was made about the Claimant and she was told by Juliette Wagner on about 19 September 2018 during a telephone call to be careful with the tone and wording of emails she was sending. The complaint had been discussed with members of the senior management team, however the Claimant was not provided any specific details or sight of the complaint itself.

[250]A complaint was made about the Claimant following which Mrs Wagner did tell the Claimant to be careful with the tone and wording of emails that she was sending. It is clear that Tim Stewart the Vice Chancellor was taking this seriously and had communicated as much to Mrs Wagner. The Claimant was not provided with any specific details or sight of the complaint itself. She did find the fact of the complaint distressing. The way it was handled was to essentially seek to brush the whole matter under the carpet, fail to engage with the details of the complaint and fail to give the Claimant the opportunity to understand or answer the allegations being made against her. Mrs Wagner acknowledged during the Tribunal hearing, having understood from the Claimant’s evidence the effect on her, that the Claimant should have been given the opportunity to see the complaint.

[251]On balance we find that the failure to allow the Claimant the opportunity to see the complaint or defend herself was unfavourable treatment.

[252]Causation: We were not satisfied on the basis of the evidence we heard that this was because of use of Claimant’s use of alcohol at all. Our finding is that, whether due to apathy, their own overwork, or lack of curiosity, Mrs Wagner and Mr Donnarumma did not engage with the detail of the ‘complaint’. We do not consider that the Claimant’s use of alcohol was any part of this.

[253]We do however find that this contributed to the fundamental breach of contract. 254. [Issue 11b] Alleged ‘something arising’: Her reliance on alcohol to manage her feelings of anxiety, her need for adjustments to accommodate her mental health and the stigma of mental health illness

[255]Our conclusions on reliance of alcohol above under Issue 11a can be repeated here.

[256]As to the need for adjustments and stigma of mental health, we do not consider that at this stage that other of these matters played a part in Mr Donnarumma telling the Claimant that she was overreacting. His approach of playing down the complaint and smoothing things over was not connected to adjustments nor to stigma of mental health. 257. [Issue 9b] Alleged ‘unfavourable treatment’: She was told by David Donnarumma on 19 September 2018 that she was overreacting to the complaint.

[258]While the specific comment about overreacting may have been well meant in the sense that Mr Donnarumma was trying to minimise the significance of the complaint, this was a manifestation of the approach described under Issue 9a, which was a failure on the part of Mrs Wagner or Mr Donnarumma to engage with - 43 - the detail of the complaint, which was more fundamental than a single comment made in a webinar.

[259]We did not consider that the Claimant has demonstrated a connection between alcohol and Mr Donnarumma’s treatment. 260. [Issue 11c] Alleged ‘something arising’: Her need for adjustments to accommodate her mental health and her vulnerability to stress.

[261]Given that we did not find that Issue 9c (below) was unfavourable treatment, it is not necessary to consider this issue further. 262. [Issue 9c] Alleged ‘unfavourable treatment’: She was told that she should not say "no" to work requests and she should sound as though she was able to meet demands by Stuart Ansell (Operations Business School) in the Autumn of 2015], and Juliette Wagner in January 2018.

[263]We have found that events in 2015 are out of time and we have not used our discretion to extend time.

[264]We do not accept that the Claimant was told in terms that she could not say no to work requests. The actual communication from Mrs Wagner in January 2018 was far more nuanced. When she said “the last person I want to upset is Sarah M” she was plainly highlighting to the Claimant that it was politically unwise to upset the Dean of the Business School. This is not the same as saying that the Claimant could not say no.

[265]We do not find that this amounted to unfavourable treatment. 266. [Issue 11d] Alleged ‘something arising’: Her need for adjustments to accommodate her mental health and the stigma of mental health illness

[267]We consider that by September/November 2018 the Claimant did have a need for adjustments of some sort. She was not coping, and occupational health input was required. 268. [Issue 9d] Alleged ‘unfavourable treatment’: She was not referred to Occupational Health in a timely manner (either in 2013 when she completed an Occupational Health Form; or in March 2014 when off sick with low mood; or in Autumn 2015 when she informed Stuart Ansell that her workload was making her ill; or on February 2018 when she disclosed that she was taking antidepressants; or in April 2018 when she told Juliette Wagner of her mental health problems during a telephone call; or in May 2018 following a hospital visit and being advised to reduce her workload; or in August 2018 when Juliette Wagner agreed to reduce her workload; or in June 2018 when David Donnarumma described her as "frazzled"; or in September 2018 when she disclosed to Mr Donnarumma that she was not coping and was drinking alcohol heavily to help her cope with work pressure and to reduce her anxiety levels; or in October 2018 when she was signed off work; or on 5 November 2018 when she disclosed her problems to Mizan Ur-Rahman HRBP; or on 6 November at a Return to Work meeting or at any point prior to 23 January 2019) and she should not have had to request such a review. - 44 -

[269]The Tribunal has found that events in 2013-2015 are out of time. We have not exercised our discretion to extend time. We do not find that events in 2018 represent a continuing omission such that time should run from 2013 as submitted by the Respondent. The circumstances changed and different people were involved. We consider that the decision not to refer in September and November 2018 represented new omissions given the new developments at these points in time.

[270]It is accepted by the Respondent that it did not refer the Claimant to OH at any time before 6 February 2019. On 24 January 2019 the Claimant stated, “I do not feel an OH referral will be beneficial to me at this stage, and in fact believe it will be detrimental to my health”. The Claimant also stated in cross-examination that if she had been referred to OH at any time, it may well have made her suicidal.

[271]Referrals to Occupational Health, particularly in cases of mental health may be very unwelcome and may have the effect of damaging relations between managers and employees. The potential sensitivities are alluded to in the Respondent’s grievance appeal outcome letter. There is in our assessment however a point at which the signs of a mental health problem are so clear that a referral must be made. In our assessment that point was reached around 19/20 September 2018 due to the information the Claimant disclosed to Mr Donnarumma including that she was drinking heavily and she was concerned that she might have Asperger’s.

[272]On 6 November 2018 there was also a point at which it was obvious that an Occupational Health referral should be made. We come to this conclusion not least because the Claimant had requested such a referral on 4 November and further Mr Donnarumma believed that such a referral was being made, although as we have found it was not.

[273]We conclude that the lack of referrals in September and November 2018 did amount to unfavourable treatment.

[274]Causation 11d/9d: the Respondent submitted that this was not put to the Respondent’s witnesses. It is clearly a question of natural justice that a particular thought process which is the basis for a discrimination claim is put to the relevant witness who is alleged to be the discriminator. We accept that the section 15 allegation summarised by Issues 11d/9d was not put in those terms to Mr Donnarumma. We cannot see that we can uphold this allegation against Mr Donnarumma.

[275]Steven Shaw on the other hand did not give evidence, and accordingly it was impossible for Claimant’s counsel to have put the claim to him. Mr Donnarumma believed that an outcome of the meeting was to make a referral to occupational health. This is not what happened. Mr Shaw (HRBP) took the next step after this meeting which was to confirm the notes on 3 December and sent a letter to the Claimant on 6 December 2018. No referral to OH was made and in fact a reference to a possible future referral was mentioned.

[276]Mr Donnarumma’s witness statement is quite clear that Mr Shaw was pursuing his own approach to this case (DD’s w/s paragraph 8.8). It was Mr Shaw’s initiative - 45 - to propose a settlement agreement. It is clear from Mr Donnarumma’s evidence that he did not think that the Claimant was in the right frame of mind to deal with this proposal, nor did he think it was appropriate. In short Mr Donnarumma and Mr Shaw were not of one mind in dealing with the Claimant.

[277]Do we accept that the failure to refer the Claimant to Occupational Health was caused by the Claimant’s need for adjustments and the stigma of mental health illness? There appear to be to distinct elements to the “something arising” here. We have not received evidence which leads us to infer conclude that the stigma of mental health illness was something that was particularly acting in the mind of Mr Shaw.

[278]Considering the other element, the need for adjustments (contractual hours only and the ability to say no) we consider that the Claimant has satisfied the initial burden on her to demonstrate this part of the claim. Mr Shaw was plainly of the view that managers working in excess of contractual hours was “normal”. He also seemed to be of the view that the Claimant was experienced enough to manage her workload. The Claimant had in express terms on 4 November, two days before the meeting on 6 November said that she wanted an occupational health referral. This request together with the circumstances at this stage would naturally suggest that this would be a normal step to be taken by an employer. Furthermore Mr Donnarumma told the Tribunal that this is what he thought was going to happen.

[279]We consider that a Tribunal could reasonably infer from the surprising failure to obtain Occupational Health advice that Mr Shaw did not want to obtain OH input nor to make adjustments to the role and instead was focused on terminating the Claimant’s employment by means of a settlement agreement.

[280]We have not had any evidence from Mr Shaw, whether live oral evidence nor in a witness statement. We do not consider that the Respondent has rebutted this allegation which therefore succeeds. 281. [Issue 11e] Alleged ‘something arising’: Her need for adjustments to accommodate her mental health and the stigma of mental health illness

[282]This is dealt with under Issue 11d above. 283. [Issue 9e] Alleged ‘unfavourable treatment’: She was not made subject to a risk assessment (either in May or October 2018 or at all)

[284]We do not consider that there was a failure to make a risk assessment in this case which amounted to unfavourable treatment. We consider that there was an onus to refer to OH, which we have dealt with under Issue 9d. 285. [Issue 11f] Alleged ‘something arising’: Her sickness absence

[286]It is clear that the Claimant’s sick absence in October 2018 was arising from her disability. 287. [Issue 9f] Alleged ‘unfavourable treatment’: She was not offered any alternatives to a settlement agreement in a sickness review meeting on 6 November 2018. - 46 -

[288]It was clarified that by ‘alternatives to a settlement agreement’ the Claimant really meant a referral to Occupational Health. We have dealt with this under Issue 9d.

[289]In short this was unfavourable treatment, but it adds nothing to 9d.

[290]Causation: we consider that a Tribunal could reasonably infer that Mr Shaw was focused on terminating the Claimant’s employment by means of a settlement agreement because of her sick absence. She had been absent. The nature of the meeting was a Sickness Absence Review.

[291]Again and for similar reasons to issue 11d/9d we consider the initial burden of proof on the Claimant is satisfied. We have not had any evidence from Mr Shaw, whether live oral evidence or in a witness statement. In any event we do not consider that the Respondent has rebutted this allegation, which therefore succeeds. 292. [Issue 11g] Alleged ‘something arising’: Her sickness absence and her need for adjustments (including a phased return to work) to accommodate her mental

[293]We find that the Claimant’s sickness absence and need for adjustments (including phased return to work) both arose from her disability.

[294]Insofar as this relates to managing communication of staff and students with the Claimant, Mr Donnarumma attempted to address this on 11 March 2019 when it was raised in the grievance appeal document. 295. [Issue 9g] Alleged ‘unfavourable treatment’: Her sickness absence was not effectively managed, in particular from 6 November 2018 the Respondent did nothing to allow the Claimant's health to recover and did not manage her sickness absence at all.

[296]It is clear from the evidence in this case that the Claimant had used her personal mobile telephone quite extensively for work with the result that a number of staff and students had this telephone number as a contact detail for her. Some of these individuals tried to make contact with her while she was on sick leave. Steven Shaw tried to contact her on sick leave in December 2018.

[297]The Claimant raised in her grievance appeal on 11 March 2019 that despite a request from her solicitor she was continuing to receive calls. Mr Donnarumma on that same day took steps to prevent this from happening.

[298]While we accept that telephone calls from work during sick leave may have been unwelcome and on occasions may have caused anxiety, we do not consider that this was unfavourable treatment, but rather it was the result of number of different students and staff having her telephone number.

[299]Causation: we do not however consider that the Claimant has demonstrated that because of these matters arising from her disability there was a failure to effectively manage her sickness absence. - 47 - 300. [Issue 11h] Alleged ‘something arising’: Her sickness absence and her need for adjustments (including a phased return to work) to accommodate her mental

[301]The sick absence arose from disability. 302. [Issue 9h] Alleged ‘unfavourable treatment’: She was informed that there was no phased return to work policy by Steven Shaw / David Donnarumma on 6 November

[303]We consider that this was no more than a mistake or a miscommunication, in particular given that the Claimant was already on a phased return. We do not find that this amounted to unfavourable treatment. 304. [Issue 12] If so, can R show that the treatment was a proportionate means of achieving a legitimate aim?

[305]We do not understand the Respondent to have argued a justification defence applicable to the parts of the section 15 claim that we find are successful above. 306. [Issue 13] Did R know, or could R reasonably have known, at each material time, that C had the disability?

[307]We consider that at the time of the meeting on 6 November 2018 did or could reasonably be expected to know of the Claimant’s disabilities. Indirect disability discrimination (section 19 EqA)

[308][Issue 14] Does/did R have the following provisions, criteria or practices (“PCPs”)? 309. [Issue 14a] The practice of requiring managers to routinely work in excess of contractual hours and / or to routinely work 55 - 60 hours a week.

[310]We find that there was a practice of expecting managers work routinely in excess of contractual hours. During the Summer running into the Autumn 2018 we accept the Claimant’s evidence, that she was working 55 – 60 hours a week. 311. [Issue 14b] The policy of not treating suicidal ideation as life threatening.

[312]Following Ishola, we find that this was a one-off event very much confined to the circumstances of the Claimant’s case. We do not find that this should be treated as an ongoing PCP. 313. [Issue 14c] The sickness absence policy and payment of 15 days' company sick pay.

[314]The Respondent’s policy was only to pay in excess of 15 days' sick pay in exceptional circumstances. 315. [Issue 14d] The practice of not having a written phased return to work policy. - 48 -

[316]The Respondent’s Sickness Absence Policy [page 788] suggests that in fact the Respondent did have a policy of a phased return to work, notwithstanding what Mr Shaw may have said about this. This was not a PCP. 317. [Issue 15] If so, in respect of each PCP, does it put persons with the disabilities of depression and anxiety and/or ASD at a particular disadvantage when compared with persons who are not disabled?

[318]We have only considered particular disadvantage where we found the PCP established.

[319]Considering Issue 14a (working in excess of contractual hours and working 55 – 60 hours a week), we do not consider that we have received evidence that satisfies us that working long hours would put people with depression/anxiety/ASD at a particular disadvantage when compared with those who are not disabled. This is not self-proving.

[320]Considering Issue 14c (paying only 15 days’ contractual sick pay), we do not consider that we have received evidence that satisfies us that this policy would put people with depression/anxiety/ASD at a particular disadvantage when compared with those who are not disabled. This is not self-proving.321. [Issue 16] The Claimant relies on the following disadvantage:

322. [Issue 16a] Exposure to stress, becoming ill and/or suffering a deterioration in mental health due to a consistently heavy workload;

[323]Given our conclusion on Issue 15 it is strictly unnecessary to make this determination. Given however that this is an important part of the Claimant’s case we have gone on to deal with this.

[324]It seems that the Claimant did suffer a deterioration in mental health in Summer/Autumn 2018 which coincided with a particularly busy period at work. As to the question of whether she became ill or suffered a deterioration in mental health due to a consistently heavy workload, this is less clear based on the evidence we have received.

[325]The Claimant appears to have been caused particular stress by factors other than workload. One example was the addition of Mr Kolhatkar to the team and the allocation of responsibilities to the Claimant which she regarded as belonging to her. It was the reduction in workload that led to a sense of unease and anxiety. The rumours of a restructure (which came to nothing) plainly caused the Claimant significant stress. The disconnect as the Claimant saw it between the way her superiors described Mr Geddes and how she perceived him, which led to her (perhaps politically naïve) decision to meet directly with him and the fallout from this caused her degree of stress. The Respondent’s handling of the “complaint” of September 2018 appears to have been pivotal in the breakdown of the relationship between the Claimant and her employer. None of these factors related to workload. - 49 -

[326]We note that Claimant took on a significant workload outside of her contractual responsibilities, for example by marking for the Respondent’s Business School and authoring and then subsequently revising a book on employment law.

[327]The Claimant had stresses and responsibilities in her private life, which are referred to repeatedly in contemporaneous emails. She had two teenage children. Her son was unwell. Her elderly father was blind, had vascular dementia and his was health was deteriorating. While we accept that the Claimant’s mother was a source of domestic support, inevitably this domestic situation would place demands on the Claimant herself. The Claimant has had to deal with past sources of grief and trauma such as the death of her husband. According to the medical evidence symptoms of depression and anxiety have been prominent since her husband’s death in 2007.

[328]The medical evidence we have considered does not suggest simple causation between workload and the Claimant’s breakdown in the later part of 2018. Part of the picture appears to be the Claimant’s realisation/acknowledgement that she might have ASD, which is a life-long condition. Reviewing the medical evidence: 328.1. In her report dated 26 November 2018 Dr Emma Cosham describes a number of stressors over the past 2½ years. She did not particularly identify workload. 328.2. Ms Gladwell’s report dated 12 February 2019 identified the difficulty in the Claimant’s role as being not being completely sure of her role, given that parts had been reassigned as well as the Claimant working longer and longer hours to try to ensure she did not make mistakes. 328.3. Dr Chris Cull of the National Autistic Society in his report dated 30 July 2019 noted that the Claimant attributed anxiety to difficulties in expressing herself in the workplace. More generally she doesn’t feel that she has ever appeared to be relaxed or happy in herself. He notes that this “masking” or “camouflaging” of symptoms is very tiring. He stated “There have been challenging experiences for Mrs Aylott particularly in her adult life, including, among other things, her own significant physical health issues; caring for members of her family who have physical health issues; the death of her husband and being a single parent to their children. These experiences can be considered to be traumatic, are very demanding of Mrs Aylott and undoubtedly have an impact on her well-being. However these would not be sufficient to account for the challenges that Mrs Aylott has in relating to the world around which have been longstanding.” He does not particularly highlight workload as being a central difficulty. 328.4. Dr Kathryn Newns in her report dated 5 December 2019 noted the Claimant’s tendency to overwork and struggle to know when to stop working. While there were significant symptoms of depression and anxiety from February 2018 in fact these symptoms have been suffered as far back - 50 - as her 20s and this is a lifelong vulnerability. Dr Newns characterises the anxiety as secondary to the ASD.

[329]In conclusion, we do not consider that the evidence leads us to conclude that the Claimant was caused a particular disadvantage by workload. 330. [Issue 16b] Sick pay limited to 15 days for non life threatening illnesses and financial distress (the Respondent avers that sick pay is limited to 15 days in all cases, but can be extended as a matter of management discretion)

[331]Plainly this was a disadvantage in the case of the Claimant.332. [Issue 16c] As above at b. See 16b.

333. [Issue 17] If so, in respect of each PCP, did it put C at that disadvantage?

[334]This has been considered above where necessary. 335. [Issue 18] If so, can R show that the PCP is a proportionate means of achieving a legitimate aim?

[336]We have not needed to consider this justification. Failure to make reasonable adjustments (sections 20-21 EqA 20)

[337][Issue 19] Does/did R have the following PCPs? 338. [Issue 19a] The duties and arrangements of a Student Learning Manager in the Functional Skills Team.

[339]Following Ishola we did not consider the secondment of the Claimant to the FS team amounted to a PCP. This was simply an event in her career. 340. [Issue 19b] The practice of not allowing employees to say "no" to work requests and requiring them to sound as though they are able to meet demands.

[341]As dealt with above, we do not consider that there was a policy of not allowing employees to say no. As we have found, in her email of 12 January Mrs Wagner was trying to help the Claimant navigate the politics of the situation. 342. [Issue 19c] The practice of requiring managers to routinely work in excess of contractual hours [is a practice] and / or to routinely work 55 - 60 hours a week.

[343]We have dealt with this at 14a above. There was a practice of expecting managers work routinely in excess of contractual hours. During the Summer running into the Autumn 2018 we accept the Claimant’s evidence, that she was working 55 – 60 344. [Issue 19d] The practice of not acting on disclosures of reliance not reliance on alcohol. - 51 -

[345]Following Ishola, we find that this was a one-off event very much confined to the circumstances of the Claimant’s case. We do not find that this should be treated as an ongoing PCP. 346. [Issue 19e] The policy of not treating suicidal ideation as life threatening.

[347]Following Ishola, we find that this was a one-off event very much confined to the circumstances of the Claimant’s case. We do not find that this should be treated as an ongoing PCP. 348. [Issue 19f] The sickness absence policy and limiting company sick pay to 15 days. [policy was only to pay in excess of 15 days' sick pay in exceptional circumstances]

[349]The Respondent’s policy was only to pay in excess of 15 days' sick pay in exceptional circumstances. 350. [Issue 19g] The practice of requiring personal / direct engagement in grievance and / or sickness absence procedures.

[351]We consider that this mischaracterises the Respondent’s policy given that(i) she was expressly told by Mr Donnarumma that she did not need to attend the sickness absence meeting on 6 November 2018 and

(ii) she was allowed to participate in the grievance and grievance appeal by written submission only. 352. [Issue 19h] The practice of not having a written phased return to work policy.

[353]This was not the PCP. This is dealt with at 14d above. 354. [Issue 19i] The practice of not considering sabbaticals or reducing the scope of roles.

[355]We do not find that this was the PCP. Mrs Wagner offered the Claimant the opportunity to reduce the number of hours she worked. 356. [Issue 20] If so, in respect of each PCP, does it put a disabled person at a substantial disadvantage in comparison with persons who are not disabled?

[357]The only PCPs we have found established were 19(c) and 19(f), both of which have already been considered in the indirect discrimination claim.

[358]We consider that there is no reason in the circumstances of this claim to treat ‘substantial disadvantage’ for the purposes of the reasonable adjustments claim as materially different to ‘particular disadvantage’ under the indirect discrimination claim.

[359]We adopt our reasoning under Issue 15 above. There was no substantial disadvantage in this case. 360. [Issue 21] If so, in respect of each PCP, did R take reasonable steps to avoid the disadvantage? C alleges that R should have made the following reasonable adjustments: - 52 -

[361]It has not been necessary to consider this issue given our findings at Issue 19. However, we consider that the following adjustments contended for do highlight management failings that contributed to the fundamental breach of contract: 361.1. (a) Reducing the Claimant's workload and/or providing the Claimant with additional support and/or resources and/or ensuring her workload was covered to allow her time off to recuperate; 361.2. (d) Heeding indications that the Claimant was not coping, in particular, her disclosures to Mr Donnarumma in about September 2018 that she was relying on alcohol to manage her anxiety, that she was not coping and listening to the Claimant's requests for support / resources and her wish to pay for a medical report so the Respondent could understand her ASD and noting the times the Claimant was working. 362. [Issue 22] Did R know, or could R reasonably have known, at each material time, that C had the disability and was likely to be placed at a substantial disadvantage?

[363]While this is not necessary for this head of claim, it has been considered under Issue 3 above. Harassment

[364][Issue 23] Did R engage in the following conduct? [Issue 24] If so, in respect of each conduct, was it unwanted? [Issue 25] If so, in respect of each unwanted conduct, was it related to C's disability? [Issue 26] If so, did it have the purpose or effect of violating the Claimant's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her? [Issue 27] If any unwanted conduct had the effect set out in Issue 26 above, was it reasonable in all the circumstances for it to have that effect?

[365]It has been convenient to deal with all of these issues together for each allegation. 366. [Issue 23a] In about May 2018 Juliette Wagner said that the Claimant was, "Mad as a box of frogs, but a good worker". The Respondent admits that the comment was made. [Issue 23b] Later in about May 2018 David Donnarumma reported Juliette Wagner as saying that the Claimant was, "As mad as a box of frogs". The Respondent admits that the comment was made.

[367]We have found that both these parts of the claim are brought out of time and it is not just and equitable to extend time. 368. [Issue 23c] In about 29th October 2018 - Steven Shaw said that someone of the Claimant's age and experience should be able to prioritise and manage her workload. The Respondent denies that any reference was made to the Claimant's age but otherwise admits that the comment was made.

[369]We consider that this was said and was unwanted, but we do not find that this related to the Claimant’s disability. - 53 - 370. [Issue 23d] Whilst the Claimant was off sick because of depression / anxiety she was told that she was costing the Respondent £3k per month for being off sick and was made to feel worthless and a burden.

[371]We have not found that this was actually said. This allegation therefore does not succeed. 372. [Issue 23e] On 6 November 2018, Steven Shaw stated that many managers were working similar hours within the University and words to the effect of "while this was clearly not their contractual hours, managers routinely worked them to get jobs done as part of their management responsibilities".

[373]We do not find that this relates to the Claimant’s disability. This does not succeed. Constructive unfair dismissal (section 95 & 98 ERA)

[374][Issue 28] Did R breach the term of trust and confidence as follows?

[375]We consider that the following matters, viewed cumulatively, amounted to a fundamental breach of trust and confidence: 375.1. The “mad as a box of frogs” comment made by Mrs Wagner and relayed to the Claimant by Mr Donnarumma. This comment was inappropriate and unprofessional both when it was made and when it was repeated to the Claimant. We consider that we can take account of this past conduct when considering the acts and omissions of the Respondent cumulatively following Kaur. 375.2. The decision not to pay the Claimant non-contractual sick pay after 15 days following the content of the Sick Absence Review meeting on 15 November 2018. 375.3. Mr Shaw telling the Claimant that someone of her Claimant's age and experience should be able to prioritise and manage her workload which we find was crass and insensitive particularly in the context of her recent sick absence and poor mental state at that stage. 375.4. The failure to allow the Claimant to understand the “complaint” made against her in September 2018 and failure to allow her to defend herself. 375.5. The failure to reduce workload and/or providing the Claimant with additional support and/or resources and/or ensuring her workload was covered to allow her time off to recuperate. It was of particular concern that she felt obliged to cancel a week’s holiday in August 2018. 375.6. The failure to heed indications that the Claimant was not coping, in particular, her disclosures to Mr Donnarumma in about September 2018 that she was drinking too much and that she was not coping. 375.7. The attempt by Mr Shaw on 6 November 2018 to steer the Claimant toward termination of her employment under a Settlement Agreement - 54 - rather than make the Occupational Health advice referral that the Claimant had expressly requested on 4 November 2018. 375.8. The grievance investigation was superficial. It was clear from the limited notes disclosed on the final day of the hearing that a limited interview process was carried out to investigate the Claimant’s grievance, which is surprising given that this took nearly two months from 11 January to 8 March 2018. The outcome contained material inaccuracies as discussed above. 375.9. The appeal outcome did not consider or address all of the Claimant’s arguments, for example it did not refer to victimisation nor to the ‘mad as a box of frogs’ comment which required investigation. This was sufficient to amount to a ‘last straw’. 376. [Issue 29] If so, was any such breach sufficiently serious as to justify C in treating her contract of employment as being at an end?

[377]We consider, that viewed cumulatively the matters set out above amounted to a fundamental breach of contract. 378. [Issue 30] If so, did C resign in response to any such breach?

[379]It is clear from the letter of resignation that the Claimant did resign in response to the breach. She had already indicated that she considered that there had been a fundamental breach of her contract in her grievance letter of 11 January 2019. 380. [Issue 31] Did C delay terminating her contract of employment so as to affirm her contract of employment or waive any breach?

[381]We do not consider that the Claimant affirmed the contract of employment nor waived any breach. From the period 11 January 2019 to 8 March 2019 she was in the grievance process. From 11 March to 23 April 2019 she was in the grievance appeal process. From October 2018 onward she was either signed off sick or working reduced hours at all times until her resignation. We do not consider it could be said that she’d affirmed the contract. Wrongful dismissal

[382][Issue 32] If C succeeds in showing she was constructively dismissed, she will be entitled to her notice pay.

[383]This will be considered further at a remedy hearing. Personal injury

[384]Was C's mental health condition exacerbated by R's discrimination?

[385]This is a question to be addressed at a remedy hearing. - 55 -

Remedy

[386]What remedy is C entitled to (if any)?

[387]This is a question to be addressed at a remedy hearing.

[388]The Parties should be aware that although the Orders below were given at the last hearing, this will of course subject to developments in the present Covid-19 pandemic. At present only closed Preliminary Hearings and Judicial Mediations are taking place at London Central are taking place, this is using telephone/video link technology. Hearings from 29 June 2020 remain listed. The parties are to advised to keep abreast of Presidential guidance.

[389]Should the parties be interested in a one day Judicial Mediation by telephone/video link to attempt settlement Employment Judge Adkin will recommend to the Regional Employment Judge that this facility is made available, subject to her approval. This would be with a different judge. ORDERS Made pursuant to the Employment Tribunal Rules of Procedure

Remedy

[1]Remedy hearing 1.1 A remedy hearing is listed with a time estimate of two days to heard by at the Employment Tribunals, London Central Employment Tribunal, Ground Floor, Victory House 30-34, Kingsway, London WC2B 6EX on Monday 13 and Tuesday 14 July 2020.

[2]Updated Schedule of Loss2.1 The Claimant is to produce an updated schedule of loss (including quantification of financial losses claimed) together with updating documents in support (e.g. mitigation of loss, documents relevant to injury to feeling) by 15 May 2020.

2.2 The Respondent shall provide to the Claimant a counter-schedule by 29 May 2020.

[3]Remedy Bundle 3.1 The Claimant shall produce an agreed, indexed remedy bundle by 5 June 2020. - 56 -

[4]Witness evidence 4.1 The Parties shall exchange any witness evidence by 16 June 2020.

Evidence

[1]The Tribunal was presented with an agreed remedy bundle of some 1,035 pages provided in electronic format. - 2 -

[2]The Claimant provided a witness statement of 75 pages. The Tribunal refused, for reasons given orally, Mr Jones’ application that we should not admit substantial parts of the Claimant’s witness statement. Nevertheless, we did accept the thrust of his submission that much of the witness statement was not strictly relevant to the matters that we had to decide. We also had a witness statement from the Claimant’s sister Mrs Sarah Bolton which was not challenged by the Respondent and evidence on behalf of the Respondent by Mr Mizan UrRahman who is now Head of HR Business Partners but was at the material time a Senior HR Business Partner whose role was referred to in our findings on liability.

[3]We received written submissions and oral submissions from both Counsel. Damages for the claim

[4]We are assessing damages for discrimination under s.15 of the Equality Act 2010 and constructive unfair dismissal. This was a discriminatory dismissal by virtue of the fact that one element of the serious breach was discriminatory .

[5]Two allegations of the Claimant’s s.15 succeeded, the first was described by issue 9d/11d: that because of the Claimant’s need for adjustments namely the adjustment that she only work her contractual hours and be given the ability to say no to work which we found was something arising from the Claimant’s disability. The Respondent through Mr Stephen Shaw did not obtain an Occupational Health report and instead was focussed on terminating the Claimant’s employment by means of a settlement agreement (liability reasons paragraph 279).

[6]The second allegation that succeeded was issue 9f/11f namely the Claimant was not offered alternatives to a settlement agreement i.e. a referral to Occupational Health in a review meeting on 6 November 2018. We found that the something arising was the Claimant’s absence due to her sickness which was as a result of her disability and again that Mr Shaw was focussed on terminating the Claimant’s employment by means of a settlement agreement because of her sick absence rather than referring her for Occupational Health that the Claimant requested (see paragraphs 287-291 of the liability reasons).

[7]This has been characterised by Mr Jones as merely a delay of approximately three months in the Occupational Health referral being made. It is correct that an Occupational Health referral was made in February 2019. This however misses two elements of our finding. First, that Mr Shaw was intent on pursuing the settlement agreement route which necessarily meant a termination of the Claimant’s employment and second that these actions together with the other actions set out at paragraph 375 of our liability reasons cumulatively amounted to a repudiatory breach of contract. It is for these reasons that we consider that this was a discriminatory dismissal.

[8]The effect of the successful s.15 claim is more significant than simply a delay in a referral to Occupational Health. It was an integral aspect of the actions of the Respondent amounting to the Claimant’s constructive dismissal. - 3 - FINDINGS OF FACT Subsequent employment

FINDINGS OF FACT

[9]Following her resignation in April 2019, the Claimant commenced working for a new employer Weir Training Limited (“Weir Training”) on 2 August 2019 and worked for them until 14 November 2019 on a salary of £23,000 gross per annum.

[10]The Respondent contends that the circumstances of the loss of the Claimant’s employment with Weir Training are such as to break the causation. It has been necessary therefore to analyse the Claimant’s employment with Weir Training in some detail.

[11]On 11 October 2019 Iren Kalm, an HR Administrator at the Respondent provided a “standard” reference to Weir Training, confirming that the Claimant worked as a Student Learning Manager from 1 September 2013 to 24 April 2019.

[12]Ms Sarah Caines, a Director at Weir Training was evidently concerned that this reference contained no mention of the Head of Functional Skills role which appeared in the Claimant’s CV. This had been a secondment that the Claimant commenced in April 2018. Accordingly she wrote to Ms Kalm on 23 October 2019, querying whether the details provided were accurate and asking whether there any other job titles within BPP, or whether her position of Student Learning Manager was the last one which she held ending on 24 April 2019. By a reply on the same day Ms Kalm confirmed that this was the last role held, although she clarified that the Claimant had been a lecturer in the period 2013 – 2015.

[13]On 12 November 2019 Ms Caines wrote again, quoting the Claimant’s CV which referred to the Head of Functional Skills role for the period March 2018 – April 2019. Ms Kalm replied the same day suggesting that Ms Caines would need to obtain a reference from the Claimant’s former line manager. She declined however to provide contact details for the line manager and said that the Claimant would have to provide this.

[14]On 12 November 2019 Ms Krystel Rajewski, Head of Curriculum at Weir Training wrote to the Claimant extending her probation period for a further six weeks because of an extended absence from the business due to unavoidable personal reasons. A meeting on 14 November 2019 was arranged.

[15]It seems from internal communications at Weir Training (e.g. an email sent by Krystel Rajewski, Head of Curriculum to Ms Caines, that the management team became concerned about a number of matters. First that the Claimant’s CV did not match the references provided by the Respondent and the Claimant was not able to fully evidence the fact of her having the Head of Functional Skills role and her responsibilities in this role. Second, there was confusion as to whether David Donnarumma was a colleague or the Claimant’s manager. Third, that the Claimant had retained a laptop belonging to the Respondent, which was the property of the Respondent and contained their data. This gave rise to a concern about a potential breach of data protection regulations. Fourthly, the - 4 - Claimant began to take personal telephone calls relating to these matters in the office which they did not consider to be appropriate.

[16]On 13 November 2019 Ms Caines had a discussion with the Claimant, which she documented in a one-page note. She explained that the references from the Respondent did not match her CV. The Claimant explained that she was never actually given the title “Head of Functional Skills” as this had been a secondment from her substantive role. Ms Caines noted that this was not something that was declared in the interview back in August 2019. Ms Caines raised a concern that Weir Training’s external standards verifier Pearson, and/or Ofsted would be very likely to request this information. Ms Caines requested that the Claimant provide contact details of her line manager at the Respondent. The Claimant told her that this was not possible because her line manager David was a person involved in her upcoming case in the Employment Tribunal.

[17]On 14 November 2019, having apparently consulted ACAS and the ICO (Information Commissioners Office), Ms Caines retracted the Claimant’s offer of employment with Weir Training with immediate effect on the grounds of failure to provide acceptable references. She was not prepared to accept email evidence supplied by the Claimant of the work that she had been doing at the Respondent on the basis that this was a breach of data protection regulations. When Sarah Caines at Weir Training tried to talk to the Claimant about this with her she became very upset.

[18]The stated reason in Weir Training’s letter of dismissal dated 14 November 2019 (746 of the remedy bundle) was failure to provide acceptable references.

[19]On 27 November 2019 Ms Caines at Weir Training sent an email to the Respondent informing them that Weir Training had become aware that the Claimant was still using her BPP laptop and accessing BPP data including personal data.

[20]On 27 November 2019 after the Claimant had been dismissed by Weir Training, the Respondent provided confirmation to Weir Training that the Claimant had indeed held the role of Head of Functional Skills. It was explained that “this would not have been known to the member of HR staff providing the reference due to the fact that Elizabeth was on secondment and as this was a temporary position her job title was not formally changed”. Unfortunately, however it was too late to salvage the Claimant’s relationship with Weir Training.

[21]The Claimant’s Schedule of Loss sets out sums in mitigation which show that she was paid for work for Pearson in July 2019 and April 2020. After the work for Weir Training, she carried out class cover/supply teaching for which she received payments in January, February, March, May, June 2020 and work for UEL for which she received payments in February, March, April, June, July, September, October 2020. She also did some work for the Cambridge International examiners for which she received payment in June 2020. - 5 - MEDICAL EVIDENCE Past Loss of Earnings

[22]In the decision on liability, we summarised multiple causes of the Claimant’s sickness, in particular at paragraph 179 and 324-329.

[23]The Tribunal has the benefit of the following evidence: 23.1. The Claimant’s Impact Statement dated 10 September 2019. 23.2. The Claimant’s GP record. 23.3. Employment Judge Gordon’s judgment dated 10 December 2019. 23.4. A report of Dr Emma Cosham dated 26 November 2018. 23.5. A report dated 30 July 2019 of Dr Chris Cull. 23.6. Evidence of Dr Kathryn Newns: 23.7. First report (based on joint instruction 5 December 2019). 23.8. Second report dated 23 June 2020 (Claimant’s sole instruction). 23.9. Oral evidence at the hearing. 23.10. Occupational health report of Gillian Gladwell dated 12 February 2019. 23.11. A letter to the Claimant’s GP dated 18 June 2019 from Dr Pearson, a doctor in Surrey Heath CMHRS. 23.12. Details of the employment/work carried out by the Claimant since she left the Respondent’s employment, contained within the Schedule of Loss.

[24]In an Occupational Health report dated 12 February 2019, Gillian Gladwell concluded that the Claimant was unfit to continue in her current role at that time. She concluded that the Claimant appeared to have a severe depressive illness with anxiety and panic attacks. She was under the care of her GP and a clinical psychiatrist and was on appropriate medication. She was highly anxious and experiencing significant symptoms due to her poor mental-health. Expert report for these proceedings

[25]In her report dated 23 June 2020 Dr Kathryn Newns concluded: 25.1. There was a deterioration in mood from late 2017, with an increase in anxiety and drinking from February 2018 onward, feeling too unwell to work from October 2018 [3.4.3]. 25.2. Since February 2018 the Claimant has experienced a clinically significant mental-health disorder. - 6 - 25.3. That a range of opinion would include that at the material time the Claimant suffered from a Depressive Order with anxious distress (recurrent, mild to moderate), and Adjustment Disorder with mixed anxiety and depression (reactive to stress at work) and a Generalised Anxiety Disorder. Dr Newns herself would identify that the Claimant was suffering from Adjustment Disorder with mixed anxiety and depression (reactive to stress at work). 25.4. The Claimant’s “mental health problems were poor from February 2018 but worsened by September 2018 [paragraph 1.3]. 25.5. She identifies a “date of deterioration” just before September 2018 (i.e. in August 2018) 25.6. GP records from 9 October noted that deterioration was caused by a colleague leaving and her having an increased workload. 25.7. By 24 October 2018 according to GP records “anxiety and physical symptoms of this currently the major issue”. 25.8. By “October or November 2018” the Claimant recalls suffering the following symptoms: exhaustion, agitation, depression, grinding of teeth at night, thumping at night (possibly an irregular heartbeat), lack of memory to the point where she could not “self-care”, vulnerable to any small change, lacking the ability to concentrate, irritability, muddled and irrational thinking, high level of fear with regard to contact from the Respondent, a sense of “unreality”, constantly tearful, shaking throughout the day, in the state of shock – going over and over everything, and “very bad drinking”. 25.9. Approximately 12 November 2018 [sic] there was a return to work interview and following this the Claimant wanted to have no more to do with her workplace. It was at this stage she instructed a solicitor and asked all correspondence go through the solicitor.

[26]Regarding causation Dr Newns was instructed to deal with events in September/November 2018, which makes our task more difficult, since based on our findings we are only dealing with the effect of the actions of Stephen Shaw on 6 November 2018. At page 12 of her second report [295 of the remedy bundle] she gave the following answer: “6. Did the failure to refer the Client to Occupational Health in September / November 2018 to identify adjustments required for the Client cause or contribute to any deterioration in the Client’s mental-health/ASD symptoms? It is not possible to predict with complete certainty how her mentalhealth would have been different if Occupational Health had been involved from September/November 2018. However I would have hoped that she would have been able to have time off work, with no contact from her workplace, and would have been able to engage in therapy at that time. If this had been the case, she may - 7 - not have developed anxiety and low mood to the degree that she did. I acknowledge, however, that the tribunal and related issues have been a source of considerable distress to her, and this would have been likely to have been the case regardless of whether Occupational health were to have been involved if the tribunal were to have gone ahead in any event. The trajectory of her mental-health if Occupational Health have been involved from September/November 2018 would obviously have depended very much on what their recommendations would have been at that time.”

[27]Regarding prognosis, Dr Newns writes: 27.1. She recommends 24 sessions of psychological therapy with a Clinical or Counselling Psychologist (ASD specialist), once a week at first, with less frequent sessions towards the end of therapy, with a phased return to work towards the last 2 months of treatment. She would expect within 9 months of commencing therapy that the Claimant would be able to return to work full-time, if all of these conditions are met (psychological therapy and a workplace which had themselves undergone ASD training and have a clear individuals with ASD.) 27.2. There is a lifelong vulnerability to psychological difficulties. Anxiety and ASD symptoms are likely to fluctuate with stress, work pressures and other life events throughout the Claimant’s lifetime. Other evidence relevant to health

[28]The Claimant resigned on 25 April 2019, but was sufficiently well to commence working for Weir Training Limited three months later on 2 August 2019. We have not received detailed evidence of the Claimant’s attempts to find work, but based on a start date at Weir, it is a reasonable inference that she must have been well enough on some level to look for work in July 2019, if not earlier.

[29]We note that in her oral evidence the Claimant said that she was not really well enough to work but felt that she had to secure an income. Despite working the Claimant appears to have remained unwell up to the time of the remedy hearing. We find that she continued to experience symptoms of anxiety and depression throughout 2020. - 8 - LAW Apportionment

LAW

[30]A victim of unlawful discrimination may suffer stress and anxiety to the extent that psychiatric and/or physical injury can be attributed to the unlawful act. In that situation it has been confirmed that the employment tribunal has jurisdiction to award compensation, subject to the requirements of causation being satisfied, see Sheriff v Klyne Tugs (Lowestoft) Ltd

[1999] IRLR 481

[1999] ICR 1170

, CA.

[31]When a tribunal finds that an employee's personal injury has been caused by a number of factors including discrimination for which the employer is liable, it should reduce compensation so that it reflects only the extent to which the unlawful discrimination contributed to the employee's ill health: Thaine v London School Of Economics

UKEAT/0144/10

, HM Prison v Salmon

[2001] IRLR 425

, BAE Systems (Operations) Ltd v Konczak

2018 ICR 1

, CA,

[2018] IRLR 893

[32]In Thaine, Keith J cited the decision of the Court of Appeal in Allen and Others v British Rail Engineering Ltd and Another

[2001] ICR 942

at paragraph 20 per Schiemann LJ: (iv) The court must do the best it can on the evidence to make the apportionment and should not be astute to deny the claimant relief on the basis that he cannot establish with demonstrable accuracy precisely what proportion of his injury is attributable to the defendant's tortious conduct.

[33]In Konczak, Underhill LJ dealt with the question of divisibility and indivisibility, following a summary of the case law (in which he approved the decision in Thaine):71. What is therefore required in any case of this character is that the tribunal should try to identify a rational basis on which the harm suffered can be apportioned between a part caused by the employer’s wrong and a part which is not so caused. I would emphasise, because the distinction is easily overlooked, that the exercise is concerned not with the divisibility of the causative contribution but with the divisibility of the harm. In other words, the question is whether the tribunal can identify, however broadly, a particular part of the suffering which is due to the wrong; not whether it can assess the degree to which the wrong caused the harm.

72. That distinction is easy enough to apply in the case of a straightforward physical injury. A broken leg is “indivisible”: if it was - 9 - suffered as a result of two torts, each tortfeasor is liable for the whole, and any question of the relative degree of “causative potency” (or culpability) is relevant only to contribution under the 1978 Act. It is less easy in the case of psychiatric harm. The message of Hatton is that such harm may well be divisible. In Rahman the exercise was made easier by the fact (see para 57 above) that the medical evidence distinguished between different elements in the claimant’s overall condition, and their causes, though even there it must be recognised that the attributions were both partial and approximate. In many, I suspect most, cases the tribunal will not have that degree of assistance. But it does not follow that no apportionment will be possible. It may, for example, be possible to conclude that a pre-existing illness, for which the employer is not responsible, has been materially aggravated by the wrong (in terms of severity of symptoms and/or duration), and to award compensation reflecting the extent of the aggravation. The most difficult type of case is that posited by Smith LJ in her article, and which she indeed treats, rightly or wrongly, as the most typical: that is where “the claimant will have cracked up quite suddenly; tipped over from being under stress into being ill.” On my understanding of Rahman and Hatton , even in that case the tribunal should seek to find a rational basis for distinguishing between a part of the illness which is due to the employer’s wrong and a part which is due to other causes; but whether that is possible will depend on the facts and the evidence. If there is no such basis, then the injury will indeed be, in Hale LJ’s words, “truly indivisible”, and principle requires that the claimant is compensated for the whole of the injury—though, importantly, if (as Smith LJ says will be typically the case) the claimant has a vulnerable personality, a discount may be required in accordance with proposition 16. [emphasis added]

[34]As is referred to in Konczak, Hale LJ’s identified propositions relevant to stress at work cases in the case of Hatton (Sutherland v Hatton

[2002] IRLR 263

CA) which may be of assistance in discrimination cases. Of particular relevance are: “(15) Where the harm suffered has more than one cause, the employer should only pay for that proportion of the harm suffered which is attributable to his wrongdoing, unless the harm is truly indivisible. It is for the defendant to raise the question of apportionment. (16) The assessment of damages will take account of any preexisting disorder or vulnerability and of the chance that the claimant would have succumbed to a stress-related disorder in any event.” - 10 - Likelihood of non-discriminatory dismissal

[35]Where it is satisfied that there is some prospect that a non-discriminatory course would have led to the same outcome an ET must reduce damages accordingly: Abbey National plc and Hopkins v Chagger

[2009] ICR 624

. A Tribunal must avoid incorporating another guise of unlawful and/or discriminatory conduct in the Chagger exercise. On the other hand any hypothetical exercise relating to future employment in the absence of discrimination must relate to the actual respondent employer not a "reasonable employer" (Abbey National Plc v Formoso

[1999] IRLR 222

). ASSESSMENT OF COMPENSATION Basic Award

[36]The basic award in this case is £3,937.50. Notice Pay

[37]The parties are agreed that the figure for three-month’s notice pay is £13,930.95. Injury to Feeling award

[38]An award of injury to feelings is intended to compensate a claimant for the anger, distress and upset caused by the unlawful treatment they have received. It is compensatory, not punitive.

[39]The Tribunal has taken account of the fact that essentially only one discriminatory act was proven and that this would not be described as a campaign of harassment or anything of that nature, for that reason we do not consider it is appropriate to make an award in the upper band.

[40]On the other hand however, the discriminatory conduct was an integral part of the serious breach which led to the termination of the Claimant’s employment, as such it was serious. Mr Shaw’s attempt to steer the Claimant towards a settlement agreement rather than making the requested referral to Occupational Health in the circumstances of the Claimant being vulnerable and unwell as she was at the time we consider has had a serious and substantial effect on the Claimant.

[41]We consider that an award should be made at the upper end of the middle band. The middle band is £8,800 – £26,300. In our assessment the correct figure is £20,000. In so awarding we have taken account of our award for injury to health - 11 - and adjusted to ensure that the Claimant is not over-compensated due to the degree of overlap. Injury to Health

[42]Ms Platt characterised the Claimant’s claim for injury to health caused by the discrimination as an exacerbation of a pre-existing condition.

[43]The Claimant’s witness statement for the remedy hearing says regarding a lack of referral to occupational health at paragraph 132: “I think it is reasonable to conclude that I was crying out for help, possibly throughout 2018, but certainly from 19 or 20 September 2018. It led to a much more severe breakdown, and a vulnerability that I do not think I can fully recover from. By the time I was finally referred to OH I had severe depressive illness with anxiety and panic attacks, with thoughts of self-harm and suicidal ideation and drinking heavily. If I had received OH support earlier, I could have recovered quietly, as I wished to do, and returned to BPP, so there is a direct correlation between the lack of OH support and my financial and career status now.”

[44]The discriminatory act we are considering is that of Stephen Shaw on 6 November 2018. The Claimant’s significant anxiety, depression and other mental-health difficulties prior to this date cannot have been caused by this discriminatory act.

[45]Was there an injury to health caused or exacerbated by the discrimination?

[46]It is clear from contemporaneous documents that the Claimant was already suffering from significant mental health difficulties at the point when the act of discrimination occurred on 6 November 2018. Her state of health up to that point cannot be attributed to the statutory tort of discrimination. There was a deterioration in mood from late 2017. She began to become unwell in February 2018, a clinically significant mental health disorder. There was a significant deterioration from August 2018 onward. She was no longer at work from October 2018 onward. All of this occurred before the discriminatory actions of Mr Shaw on 6 November 2018.

[47]There continued to be other stressors after this point. Some of the causes of stress are circumstances relating to the Claimant’s employment with the Respondent in respect of which there is no legal liability. Some of the causes are unrelated factors, whether personal or domestic. The litigation itself has plainly been a cause of stress.

[48]The report of Dr Newns does not deal in precise terms solely with the effect of the discrimination on 6 November 2018, given that the instructions given to her also referred to September 2018. Her opinion regarding the effect of the nonreferral to OH is expressed in slightly tentative terms. She acknowledged in - 12 - cross examination that in preparing her report she had assumed that the Claimant had not had time off whereas in fact the Claimant had gone off sick on 24 October 2018.

[49]Dr Newn has not attempted to provide any percentage apportionment relating to the events on 6 November 2018.

[50]One imponderable point from Dr Newn’s perspective dealing with causation is what the Occupational Health recommendations would have been at the time, i.e. had there been a referral in November 2018. Her degree of caution is entirely appropriate given that she is simply offering a medical opinion.

[51]It is clear from appellate authority that a Tribunal should not avoid what is often a somewhat speculative process. It is incumbent upon us to consider what would have happened and to make findings as to what would have happened but for the discrimination and what will now happen.

[52]This is a situation, as envisaged by Underhill LJ in Konczak where we do not have medical evidence to support a precise apportionment. However following this and other appellate guidance we find that it is in the interests of justice to make such an apportionment as we are able. We accept the Claimant’s evidence to the extent that, her ill health was significantly aggravated by the decision of Mr Shaw not to make the occupational health referral requested at a crucial time. The consequence, we find, was not simply a delay of three months in the making of the occupational health referral, but a missed opportunity to make a referral at a stage when the Claimant actively wanted such a referral, such that it was realistic to anticipate that a return to work would be successfully achieved.

[53]Our finding is that an Occupational Health referral in 6 November 2018 would have had a very good chance of allowing the Claimant the opportunity to recover and providing a structure for her return into the workplace. We find on the balance of probabilities that this would have successfully led to her return to work. (We deal with the possibility that it would not have worked out below under “Chagger”).

[54]We find that the injury is best described as an aggravation of the Claimant’s illhealth at the time of 6 November 2018. Although this discriminatory omission is one of a number of stressors in the Claimant’s life, its particular significance was in the effect. The opportunity to obtain occupational health advice at a time when the Claimant was receptive to it and the likelihood of a successful return to work was lost. It is the experience of the Tribunal that lengthy absences from the workplace make a return to work harder to achieve. We find that this was the situation in this case.

[55]The Claimant understood from Mr Shaw that the employment relationship was coming to an end. The GP record of 16 November 2018 recorded “Work have said she needs to settle with them so will be looking for other work but doesn’t feel able to do this at present”. - 13 -

[56]The failure to refer to occupational health led to the submission of the grievance in January 2019 and ultimately to the breakdown in the employment relationship. We accept that the Claimant’s symptoms depression and anxiety have been aggravated from the continuing effects of the discrimination of 6 November 2018. We find that that persisted even up to the date of the remedy hearing.

[57]Konczak makes clear that it is the divisibility of harm that should be the focus of the Tribunal. Given the multiple causes and the fact that the Claimant was ill already by 6 November 2018, we consider that, on a rough and ready basis the appropriate apportionment is that 50% of the Claimant’s injury can be apportioned to the discriminatory conduct and its consequences. Assessment of quantum for injury to health

[58]We have considered the Judicial College Guidelines specifically the 15th Edition which was published in November 2019. We have taken account of the guidance for psychiatric injuries and(a) the injured person’s ability to cope with life and work

(b) the effect of the injured persons relationships with family friends and those with whom she comes in to contact

(d) future vulnerability

(e) prognosis

(f) whether medical help has been sought

[59]We find that, prior to apportionment, the extent of the Claimant’s injury falls into the Moderately Severe award suggesting an amount between £17,900 and £51,460.

[60]Moderately Severe cases include those where there is a work related stress resulting in a permanent or long standing disability preventing a return to comparable employment. These are cases where the problems with factors (a) – (d) above but there is a more optimistic prognosis than severe, we do not consider that this is a severe case given that the prognosis is reasonably good albeit that the Claimant in our assessment is unlikely to return to work at the same level of compensation that she enjoyed while working for the Respondent.

[61]We have also taken account of the decision of Mr Justice Henriques in a quantum award reported by Lawtell in the case of Garrod v North Devon NHS Primary Care Trust a decision in 2006 in which the Claimant received an award which would be updated for inflation of £20,967 in that case the Claimant who was female and 49 and a Health Visitor suffered a Moderately Severe depressive illness, her employment was terminated on grounds of ill health following two depressive episodes which were on the facts of that case the fault - 14 - of the employer, her depression continued at trial which appears to have been four years after the material injury but was expected largely to resolve within six to twelve months allowing a return to work within two years of the end of litigation but not in a stressful occupation or a managerial position.

[62]We find that case is useful as a point of comparison but in fact that Mrs Aylott’s situation was somewhat less severe given that the prognosis supported by medical evidence in her case is that she should be able to return to full time work in less than a year with treatment. Accordingly, we consider that any award should be lower than that awarded in the case of Garrod.

[63]If the Respondent’s discrimination was the sole cause of the Moderately Severe episode we consider that it would be in the circumstances of this case appropriate to award a figure somewhere in the middle of the Moderately Severe band i.e. between £17,900 and £51,460. The mid-point of the band is £34,680.

[64]Based on an apportionment of 50% the injury to health award we find is (50% x £34,680=) £17,340. Expenses caused by injury

[65]The next item in the schedule are a series of payments to Doctor Cosham totalling £1,110 we have seen evidence of Doctor Cosham’s input in this case, we find that this was of therapeutic benefit and arose from the Claimant’s injury caused by discrimination, dealt with below. For reasons given above on apportionment we allow 50% of this making £555.

[66]A figure of £1,900 is claimed for what is described as “Lorna Wing” in July 2019. This is an autism report, which although has been of some benefit in this litigation we consider was obtained principally for therapeutic reasons and accordingly we allow 50% of this making £950. Aggravated Damages

[67]Aggravated damages may be awarded where the act of discrimination has been done in an exceptionally upsetting way, for example “in a high handed malicious, insulting or oppressive way” or alternatively where a case is conducted at trial in an unnecessary offensive manner.

[68]It was put forward on behalf of the Claimant that she had been put through an unnecessary preliminary hearing to determine the matter of disability. It seems however that the question of disability was conceded at the outset of that hearing.

[69]We find that hearing and the decision of Employment Judge Gordon made some useful findings about the extent, nature and timing of the Claimant’s disability. While we acknowledge that a concession might have been at an earlier stage, we do not consider that it crosses the threshold for aggravated damages. - 15 - Past Loss of Earnings

[70]The Respondent argues that the circumstances regarding the Claimant’s employment at Weir Training are supervening events and that it would not “just and equitable” for losses to continue beyond that this point. Further, it is argued, that to hold the Respondent accountable for the reference would amount to a claim for negligent misstatement, which falls outside of the jurisdiction of the tribunal.

[71]The circumstances leading to this dismissal are unfortunate. It is easy to see how the somewhat bureaucratic approach of the Respondent’s administrator led to suspicions in the minds of the Claimant’s new employer, compounded with the circumstances of the laptop.

[72]We have seen nothing in the evidence of the way that the Claimant described her old role to her new employer to suggest that she was anything other than entirely honest. It seems that the lack of a reference by Respondent in the precise terms she used to describe the secondment from the Respondent precipitated events which led to the termination of the Claimant’s employment with Weir Training. As to the laptop, Mr Shaw or the Respondent could have arranged for the laptop to be returned. Equally we accept that the Claimant should have taken some action to return this laptop, which was not her property. The concerns regarding the Respondent’s data on the laptop was precipitated by the absence of an adequate reference to corroborate the title and nature of the Claimant’s secondment.

[73]We do not consider that we need to attribute blame for the circumstances that arose involving the Claimant, Respondent and Weir Training. In our view none of the actions of any of the three actors broke the chain of causation. Looking at the matter broadly, at this time the Claimant was receiving a salary at Weir Training Limited which was £32,000 less than the salary she had been receiving at the Respondent. She was on any view still experiencing a significant loss as a result of the discriminatory dismissal. We find that the Claimant reasonably accepted this employment in an attempt to mitigate her loss. The fact that this subsequent employment came to an end because of a lack of prompt and full communication over her former role, on the part of the Respondent we do not find amounts to a supervening event.

[74]In summary we do not find that this was a supervening event. The Claimant was still during and after the period of employment with Weir Training suffering an ongoing loss following the discriminatory dismissal. These events did not break the chain of causation. Calculations

[75]The period from the end of the three month notice period on the 16 July 2019 until the remedy hearing on 7 December 2020 is 72 weeks.

[76]We have taken the weekly net earnings figure of £688.48 set out in the counterschedule. We find that this figure is evidenced by the most up to date payslip contained within the remedy bundle set out pages 442-443. This is the - 16 - latest payslip before the period of sick absence and we find that this is the best approximation to the Claimant’s ongoing net pay.

[77]Multiplying these figures gives a figure for loss of earnings up to the date of the remedy hearing of £49,570.56. (72 weeks x £688.48/week)

[78]From that figure we deduct the sum of £17,761.08 which is the amount that the Claimant earned from other employment in the period May 2019 to October 2020 as set out in her amended schedule of loss provided on the first day of the hearing. Pension Contributions (past)

[79]We have taken the agreed annual pension contribution figure set out in the up dated counter schedule namely an annual figure of £1,902.36. This is equivalent to a monthly loss of £158.53 or a weekly loss of £36.58.

[80]We find that for the twenty months from dismissal to the first day of the remedy hearing the Claimant lost out on pension contributions in the sum of £3,170.60. Loss of Statutory Rights

[81]We have assessed this figure in the round figure of £500. Job Seeking Expenses

[82]The Claimant has claimed £100 for this figure. We do not consider that the Claimant has proved this loss and accordingly make no award. Other Expenses

[83]The footnote for expenses at the bottom of page of the schedule of loss does not seem to be fully reflected in the body of the schedule. We have considered that the appropriate approach is to consider this footnote as if it was part of the body of the schedule, we note that the Respondent had seen these figures in an earlier iteration of the schedule and consider it appropriate to assess this accordingly.

[84]The first item is £850 described as an AQA course from Brooks and Kurt. This is dealt with in the Claimant’s witness statement, she says it is to help her carry out apprenticeship work, this point was not challenged by the Respondent and we accept this is a loss accordingly we award £850. - 17 - Interest

[85]Interest is awarded on injury to feelings awards from the date of the act of discrimination complained of until the date on which the tribunal calculates the compensation (see Reg 6(1)(a) IT(IADC) Regs 1996). In this case the act of discrimination occurred on 6 November 2018. The date of assessment is 17 February 2021. The elapsed number of days is 833. Interest on injury to feelings is therefore 833/365 x 8% x £20,000 = £3,651.51.

[86]The Claimant has claimed interest on the award for personal injury at 2%. The elapsed number of days is 833. Interest on the award for personal injury is therefore 833/365 x 2% x £17,340 = £791.46.

[87]Interest is awarded on all sums other than injury to feelings awards from the mid-point of the date of the act of discrimination complained of and the date the tribunal calculates the award (Reg 6(1)(b) IT(IADC) Regs 1996). The mid-point date is the date half way through the period between the date of the discrimination complained of and the date the tribunal calculates the award (Reg 4 IT(IADC) Regs 1996). The elapsed number of days is 833. Interest on the award for personal injury is therefore 833/365 x 0.5 (only from mid-point) x 8% x £32,247.07 (total past compensation) = £2,943.76. FUTURE LOSSES Future recovery

[88]The opinion of clinical psychologist Doctor Kathryn Newns in her report dated 23 June 2020 (based on a sole instruction from the Claimant having previously been jointly instructed) is that the litigation itself has been a significant source of stress for the Claimant and that herself confidence has deteriorated to a significant extent.

[89]Happily, however she is of the opinion that the current situation which she characterises as a cycle of anxiety and avoidance using alcohol to cope is not likely to be permanent, she considers that with the intervention of a clinical or counselling psychologist who specialises in working with individuals with ASD should would be able to recover her self-confidence, re learn ways to interact at work and manage conflict at work and carry out work tasks without risks to her mental health.

[90]She recommends twenty four sessions of psychological therapy which would be weekly at first but with less frequent sessions towards the end of therapy. She suggests that towards the last two months of treatment the Claimant would be able to start a phased return to the work place.

[91]In her opinion the Claimant should within nine months of commencing therapy be able to return to full time work if all of these conditions are met. She does however, register an opinion that the Claimant has a lifelong vulnerability to psychological difficulties and her anxiety and her ASD symptoms are likely to - 18 - fluctuate with stress, work pressures and other life events throughout her lifetime.

[92]The Tribunal heard oral evidence from Doctor Newns who was asked questions by Mr Jones and the Tribunal panel. We asked for information about the lead time in entering this type of therapy. Unfortunately it seems that such therapists do not have a waiting list due to risks that might attach to such a waiting list. Taking account of a likely delay in the Claimant obtaining therapy and Doctor Newn’s opinion that it would take her nine months to get to the stage of being in full time employment and also the exceptional circumstances of the present Covid-19 pandemic taking a realistic view of this we consider that it would be January 2022 before the Claimant is likely to be in position of carrying out full time employment. We do however consider that she would be likely to continue picking up ad hoc or contracting work during the course of 2021 as she has been doing. Residual Earning Capacity

[93]The Claimant has put forward her claim on the basis of a residual earning capacity of £20,000 a year. We note that in an earlier version of the schedule of loss it was suggested that the Claimant would eventually get to the ability to earn £30,000 per year.

[94]The Claimant is an intelligent, hardworking and resourceful woman. She has demonstrated since her dismissal the ability to find work.

[95]We find that by January 2022 the Claimant will be able to earn £30,000 per year, we take account of the fact she may have to do more than one work stream simultaneously to achieve this figure and that it may be hard work to earn this much in the education sector working as a contractor or on a self-employed basis. Nevertheless, doing the best that we can we find that she will earn £30,000 a year from this point onwards. This is approximately equivalent to £24,040 net earnings. December 2020 – December 2021

[96]We find that during this fifty six week period from the date of the remedy hearing to the end of 2021 the Claimant will continue to earn money on an ad hoc basis as she has done between her dismissal and the remedy hearing.

[97]We have considered the Claimant’s income for the first nine months of 2020 and consider that this is probably our best guide as to her earning capacity at present. We have excluded the income from the Weir Training period, on the basis that this is less likely to be reflective of the future pattern of her earnings.

[98]Excluding the Weir income, the Claimant’s earnings for a 43 week period in 2020 were £12,397.50. This represents weekly net earnings of £288.31.

[99]For 56 weeks from early December 2020 to the end of December 2021 if the Claimant continued to earn at the same rate she would earn £16,145.58 and we - 19 - have given credit for that set against a loss calculated by reference to the Claimant’s weekly earnings of £688.48 for the fifty six week period.

[100]We calculate this as a net loss of (£38,554.88-£16,145.58) = £22,409.30. Pension

[101]For this fifty six week period we have awarded pension loss of £2,048.70 on the same basis as the pension loss before (i.e. £36.58 x 56). 2022 and onward

[102]The Claimant has put forward her claim on the basis on a career long loss. Her claim is that she would have remained working for the Respondent until a retirement age of 68. This claim is supported by a number of submissions, including that the Claimant had a “stable and secure employment … .. before April 2018 it was enjoyable and rewarding and it enabled her to support her family”. The Claimant’s case is therefore that there is no reason to doubt that she would have continued working until the age of 68 in full timeemployment.

[103]The Tribunal does not accept this characterisation. As we found in our written reasons on liability, the Claimant had been struggling with the workplace and in her role in it. We dealt with a variety of such problems in our written reasons, in particular at paragraphs 46, 49, 55-72, 86, 90-120. This history goes back to Summer 2016. For example she was unhappy with her allocation of responsibilities following Mr Kolhathkar joining the team in Summer 2016, she was struggling with the long hours culture and she suffered with anxiety with rumours about a restructure. As to the politics of the organisation, she had experienced friction with the Dean of the Business School, she attended the meeting with the CEO described by the Vice-Chancellor as not being “appropriate or sensible” and friction with the Head of the Programme Design team. In February 2018, following discussions with her mentor, the Claimant was already contemplating whether she had been constructively dismissed. This was before the discriminatory event.

[104]Absent the discrimination, we do not accept that the Claimant would have continued working for the Respondent until she was 68.

[105]We have considered the guidance of the Court of Appeal in the leading case on career long loss Wardle v Credit Agricole Corporate and Investment Bank

[2011] EWCA Civ 545

[2011] IRLR 604

. While we accept that Mrs Aylott’s case is one in which she may not recover the same level of remuneration in her subsequent employment, we do not consider that her case should be seen as a career long loss approach given that we do not find what she would only voluntarily have left her employment for an equivalent or better job. We find that she would have left this job long before the end of her career. She was not particularly happy in the organisation and her employment there was taking a toll on her health. Against this, we recognise that she had a strong work ethic - 20 - and had she recovered from her illness in 2018 as we find most likely, we find she would have worked another few years.

[106]The Tribunal is required to do the best it can based on the evidence. This exercise is necessarily speculative. Doing the best we can, our finding is that but for the discriminatory dismissal, the Claimant would have worked for a little over five years from the date of the remedy hearing, to 31 December 2025.

[107]For this period on the basis we find that the Claimant will have a residual earning capacity of £30,000 (gross annual). When compared to her actual gross annual salary of £55,000 the gross loss is £25,000. Comparing net equivalents, the net annual salary in the Respondent’s employment was £688.48 x 52 = £35,800.96. The net equivalent of £30,000 is £24,040. The loss of annual earnings is £11,760.96.

[108]Accordingly the Claimant’s future net loss for this period is (4 x £11,760.96 =) £47,043.84.

[109]Future pension contributions which we have calculated at £7,609.44 (4 years x £1,902.36 p.a.).

[110]The Claimant has put forward her claim for future loss of on a multiplier basis for a career long loss to the age of 68. Given that we are not assessing this claim on the basis of a career long loss and we have heeded the guidance of the EAT on the use of the Ogden table approach in Kingston Upon Hull City Council v Dunnachie (No.3) and another

[2004] ICR 227

, EAT and Birmingham City Council v Jaddoo (EAT0448/04). We do not find that such an approach is appropriate in the circumstances of this case. Apportionment of compensatory award

[111]We have considered whether we should apportion the compensatory award for financial losses arising from dismissal in line with the 50% apportionment of the award for psychiatric injury and financial losses caused by the injury.

[112]Focusing on the divisibility of harm, we find that we cannot divide the harm suffered to the Claimant’s career with the Respondent in the same way that we could divide the psychiatric injury.

[113]Our finding is that but for the discrimination of 6 November 2018, the Claimant would have benefited from a timely referral to occupational health, would not have submitted a grievance and would have returned to the workplace. The whole sequence of events following the discrimination was caused by it. We do not find that we can divide out multiple causes or apportion harm. - 21 -

[114]To the extent to which it might be said that there was a chance that the employment relationship would come to an end in any event, we have dealt with this under ‘Chagger’ below. Chagger deduction

[115]Following Chagger v Abbey National

[2009] EWCA 1202

it is necessary to consider what would have happened had there been no unlawful discrimination on 6 November 2018. Mr Jones submits on behalf of the Respondent that, if there was a chance of a non-discriminatory constructive unfair dismissal taking place in any event, a reduction should be made on this basis.

[116]While we have derived some assistance from Chagger and Formoso regarding the broad principles to be applied, Mrs Aylott’s factual circumstances are significantly different to both cases. Chagger was a redundancy situation. Formoso was a dismissal for a disciplinary matter. In both of those cases the employee involved was subject to a process that was quite likely to result in a dismissal absent the discrimination. In both cases the employee was approaching the conclusion of a process where they would or would not be dismissed.

[117]By contrast Mrs Aylott was not involved in a disciplinary or redundancy process. There was nothing inevitable about a dismissal situation arising, even a constructive dismissal situation. On 6 November 2018 she was on sick leave, and requesting a referral to occupational health. Mr Shaw, who was part of the HR department was signalling by his actions that a settlement agreement with termination was the Respondent’s preferred outcome rather than rehabilitation and return to work. The referral to occupational health was made 3 months later, by which point her health had deteriorated and she was by that stage reluctant to engage with occupational health. By the time of her resignation on 25 April 2019 she was in a situation that had been caused by the discrimination which she would not otherwise have been in. This is quite different to a disciplinary or redundancy process which might be thought quite likely to lead to dismissal within a particular timeframe whether or not there had been discrimination.

[118]Our finding is that, on the balance of probabilities, a referral to occupational health made within a few days of her requesting it in November 2018 would have led to her returning to the workplace. Mr Donnarumma, her line manager in her seconded role, seems to have been reasonably sympathetic to her. She had been absent with health difficulties before but managed to recover and return to work. On balance we find that with occupational health assistance she would have rested and returned to work with some support in place.

[119]Nevertheless we accept that there was some possibility that the Claimant’s employment would have come to an end absent discrimination. - 22 - There are two reasons. First, that the Claimant had struggled with her relationships in the workplace in the months preceding her sick absence in October 2018, as is dealt with at some length in the written reasons for our decision on liability. Secondly, she was unwell and her employment was exacerbating her ill health.

[120]For the reasons given above, in particular that she was not in a process that would be naturally likely to lead to the termination of her employment, we find that the likelihood of the Claimant resigning for a non-discriminatory reason was low but possible.

[121]Our finding is that but for the discrimination there was a 10% chance of her resigning on 25 April 2019, the date of her actual resignation.

[122]It follows that the deduction should be 10%. Grossing up

[123]Ms Platt’s written submissions contend for “grossing up” i.e. an increase in award to reflect the fact that the compensation over £30,000 will be taxed in the hands of the Claimant. The Tribunal did not hear detailed argument on this point, nor does it have a basis to calculate the tax that the Claimant will have to pay, not knowing the likely date of payment of the award and nor her other income in the relevant tax year or years.

[124]The Tribunal considers in principle that grossing up should apply, but invites the parties to agree if possible the amount.

LAW

[1]By 12 March 2021, the Claimant will provide to the Respondent a draft calculation of the sum claimed for grossing up.

[2]By 26 March 2021 the parties will notify the Tribunal (marked in the subject line for the urgent attention of Employment Judge Adkin) whether the matter has settled, or alternatively of the agreed figure for a grossing up element if an order is required or in the event that any point remains in dispute, the basis for dispute, setting out each side’s position in brief and an indication of whether the parties are content for this point to be resolved on the papers.