Ms R Harley v University College London: 2204551/2019

EMPLOYMENT TRIBUNALS

Case No 2204551/2019

Between

Ms R HarleyClaimant

University College LondonRespondent

Before

Employment Judge Mr M Emery

Date 20 September 2021

JUDGMENT

[1]The claim of failures to make reasonable adjustments succeeds in part.

[2]The claim of disability discrimination for reasons connected to disability succeeds in part.

REASONS

Remedy

[1]The claimant has bipolar disorder and crohn’s disease. The respondent admits the claimant is disabled under the Equality Act 2010 (EqA) provisions, and it admits constructive knowledge of disability from 4 April 2019, and actual knowledge from 17 June 2019.

[2]The claimant was employed Executive Assistant at Great Ormond Street Institute of Child Health. She declared she had a disability on the equal opportunities form on her job application and, when successful in getting the role, on her new starter form. She says the respondent failed to apply its own policies and failed to consider the need for reasonable adjustments to her role. She claims she was treated unfavourably because of things arising from her disability. This discrimination, she argues, caused her to go off work with ill health. The respondent denies all allegations.

[3]At the outset of the hearing the claimant made an application to amend what had been an agreed List of Issues, drawn up by legal representatives following a Case Management Discussion. The claimant’s essential point was that the amendments were a more specific identification of issues already within the list of issues, or were issues which were allegations in the claim; the respondent argued that that they were impermissible late additions and/or new claims to the agreed Issues.

[4]By agreement it was decided to determine this issue at the end of evidence: the evidence would remain the same as there was an obvious cross-over with the Issues already within the List. At the end of evidence the parties made written and oral submissions on the claimant’s proposed amendments which we carefully considered.

[5]In allowing the amendments, we concluded that the amendments related to specific allegations which were clearly set out in the claim; that they were labelled allegations within the Details of Complaint. Adding them to the List of Issues was, we considered, articulating into the List allegations already pleaded.

[6]The first amendment was for a further ‘reasonable adjustment’: 3.7(a): “Providing pre-employment health checks and/or enquiring about reasonable adjustments for all staff who disclose on the Equal Opportunities Form and/or the Staff Recruitment Form that they are disabled.”

[7]The Tribunal noted that this was essentially a mirror of an agreed PCP – “not implementing health checks…” - issue 3.1(a). We noted also paragraphs 4 and 6 of her claim – “HR should have informed the claimant’s manager that she had declared a disability…”; … “no such health clearance was undertaken” alleging that this is a breach of s.13, 15 and s.20 EqA. We concluded that the amendment sought to the list of issues was already implicit in the PCP and was a claim clearly made within the original ET1.

[8]The second amendment to the List of Issues was Allegations 4.1(e) - The letters sent by Ms Hofmans to the Claimant dated 19 June 2019 and 23 July 2019.

[9]We again noted what is in the claim form – paragraphs 19-22 and 28 – which refer to both letters and say that both amount to a breach of s.15. The Tribunal saw this amendment to the list of issues as no more than an articulation of what was explicitly in the claim, that these letters amounted to unfavourable treatment. Again, the amendment to the list was allowed as this is an allegation clearly made.

[10]The third amendment is Allegation 4.2(a) – the need for the Claimant to attend medical appointment as ‘something arising’ in consequence of her disability. The Tribunal again noted paragraphs 11-14 of her claim form – the claimant stated it was a medical appointment, she was told her managers would not be happy, the claimant said she would rearrange, causing her stress – pleaded as a s.15 EqA claim. The Tribunal again considered that the proposed amendments to the List was adding to the List of Issues what was a clear allegation made within the Details of Complaint.

[11]The final List of Issues (as sent through by the respondent’s solicitors on 16 April 2021) is as follows (numbering changed): Jurisdiction: Time Limits

[12]In respect of any alleged acts of discrimination which occurred on or before 13 May 2019 are they out of time and therefore does the Tribunal have jurisdiction to hear those claims?

[13]In respect of the allegations of discrimination which relate to the period from 1 March 2019 (date of the Claimant's application for employment with the Respondent) to 23 October 2019 (date the Claimant lodged her claim), do they form part of a continuing act or omission under section 123(3)(a) of the EqA?

[14]In respect of any alleged acts of discrimination which are out of time, would it be just and equitable for the Tribunal to extend time? Disability Discrimination: section 6 EqA

[15]It is accepted that at all material times the Claimant was a disabled person with the conditions of Crohn's disease (and associated IBS) and/or bipolar disorder and/or depression as defined in section 6 of the EqA, supplemented by the provisions in Schedule 1.

[16]Did the Respondent know or reasonably ought to have known that the Claimant was a disabled person, and if so, at what point in time? The Respondent accepts constructive knowledge from 4 April 2019 and actual knowledge from 17 June 2019. Duty to make reasonable adjustments: section 20 EqA

[17]Did the Respondent apply the following PCPs:a. Not implementing reasonable pre-employment health checks to all employees including the Claimant who informed the Respondent that they considered themselves to be disabled; The respondent says checks are carried out for specific roles or when requested

b. Requiring employees including the Claimant to attend work during normal contracted hours 9 am to 5pm (or requiring that of employees including the Claimant during their probationary period); This is agreed by the Respondent.

c. Requiring employees including the Claimant to carry out her work at the normal place of work; This is agreed by the Respondent.

d. Not having someone else available to take phone messages or amending the voicemail answer to reflect that when the Claimant would be able to reply; This is agreed by the Respondent.

e. Referring employees including the Claimant to an internally employed Occupational Health Nurse, without that person having the necessary expertise to assess the employee’s condition in question (in the Claimant’s case, her disabilities); and The Respondent asserts that this PCP does not correlate with any adjustment as the corresponding adjustment has been withdrawn.

f. Only paying limited sick pay when employees including the Claimant are on sick leave due to a disability, and where the Respondent has not implemented other reasonable adjustments to facilitate the Claimant's return to work (and or recouping overpayments). The Respondent accepts that the Claimant was paid in line with its sick pay policy during her absence. However, it does not agree that it failed to implement reasonable adjustments to facilitate her return to work.

[18]Do the above amount to a PCP for the purposes of section 20(3) EqA?

[19]Did the PCP at paragraph a to (f) above, put those with crohn's disease (and associated IBS), and/or bipolar disorder and/or depression at a substantial disadvantage. The substantial disadvantage relied upon is the access to and ability to work successfully in the role in which she was employed.

[20]If so, did the PCP in question put the Claimant at a substantial disadvantage in comparison with persons who are not disabled?

[21]Did the Respondent apply, or would the Respondent have applied, the PCP in question to people who did not have the same disability as the Claimant?

[22]Did the Respondent fail to comply with a duty to make reasonable adjustments? The Claimant contends for the following adjustments:a. Providing pre-employment health checks and/or enquiring about reasonable adjustments for all staff who disclose on the Equal Opportunities Form and/or the Staff Recruitment Form that they are disabled.

b. Flexibility to allow her to attend regular medical appointments, in respect of Bipolar Disorder and Crohn's disease;

c. The option to work from home if she was not fit enough to travel to the office (as with her previous employer), in respect of Crohn's disease;

d. Allowing her to start early to avoid rush hour traffic, in respect of Crohn's;

e. If she had to attend medical appointments or her hours were flexible, having someone else to take phone messages or amending the voicemail answer to reflect that when she would be able to reply, in respect of Bipolar disorder or Crohn's;

f. Allowing her to return to work on a phased return or allowing her to work from home for a period, in respect of Bipolar disorder and Crohn's;

g. Paying full pay during sick leave until all reasonable adjustments have been implemented in respect of Bipolar disorder and Crohn's.

[23]Did the Respondent know, or could the Respondent reasonably be expected to have known, that the Claimant was likely to put to a substantial disadvantage compared to persons who are not disabled? Discrimination arising from disability: section 15 EqA

[24]Was the Claimant treated unfavourably by the Respondent because of something arising from her disabilities? The Claimant relies on the following as alleged acts of unfavourable treatment:a. Failing to identify and/or implement reasonable adjustments (Crohn's disease and Bipolar Disorder);

b. Requiring / requesting that the Claimant attend medical appointments outside working hours or only at the beginning or end of the working day (Bipolar Disorder);

c. Contacting the Claimant while she is off sick and/or requiring her to attend Disorder;

d. The text message sent to the Claimant on 25 June 2019 whilst she was on sick leave;

e. The letters sent by Ms Hofmans to the Claimant dated 19 June 2019 and 23 July 2019; and

f. Only paying sick leave when the Claimant was on sick leave because other reasonable adjustments have not been implemented, and or recouping overpayments (Crohn's disease and Bipolar Disorder).

[25]The Claimant relies upon the following as the 'something arising from' her disabilities:a. The need for the Claimant to attend medical appointments (this relates to the unfavourable treatment set out at paragraph 4.1(b) only);

b. The Claimant was off sick from 17 June 2019 as a result of her disabilities.

[26]The Respondent relies on the following legitimate aims:a. to ensure that employee development and performance can be appropriately and properly measured

b. to ensure business continuity during employee leave; and

c. the robust management of employee sickness absence.

d. The need to ensure the office was appropriately resourced (this relates to the unfavourable treatment set out at paragraph 4.1(b)).

e. Managing employee absence for medical appointments in line with business needs paragraph (this relates to the unfavourable treatment set out at paragraph 4.1(b)).

[27]The Respondent will say that the legitimate aims were achieved proportionately as:a. the Respondent made various attempts to engage with the Claimant to ensure that she was settling into her role;

b. detailed job specifications and role expectations were provided to and discussed with the Claimant at length during both the recruitment and interview process, which the Claimant confirmed she understood and accepted;

c. role targets and expectations were clarified with the Claimant following her commencing employment; and

d. following the Claimant commencing sickness absence, the Respondent has made a number of attempts to engage with the Claimant in a bid to try and establish what medical issues the Claimant has, and what possible arrangements or reasonable adjustments (if applicable) could be put into place in this regard to facilitate the Claimant's return to work, reverting to full pay.

e. The Respondent is flexible and does allow employees to attend medical appointments in working hours but asks them to arrange them early or late in the day.

The Law

[28]Equality Act 2010 6 Disability(1) A person (P) has a disability ifa. P has a physical or mental impairment, and b. the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities. 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. 20 Duty to make adjustments (1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.

(2) ...

(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. 21 Failure to comply with duty (1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments. (2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person. 23 Comparison by reference to circumstances (1) On a comparison of cases for the purposes of section 13 … there must be no material difference between the circumstances relating to each case. (2) The circumstances relating to a case include a person's abilities if— a. on a comparison for the purposes of section 13, the protected characteristic is disability; 136 Burden of proof (1) This section applies to any proceedings relating to a contravention of this Act (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred (3) But subsection (2) does not apply if A shows that A did not contravene the provision. Schedule 8 – Duty to Make reasonable Adjustments; Part 3 Limitations on the Duty - Lack of knowledge of disability, etc. 20(1) A is not subject to a duty to make reasonable adjustments if A does not know, and could not reasonably be expected to know— (a) … (b) than an employee has a disability and is likely to be placed at the disadvantage… Relevant case law

[29]Discrimination arising from disabilitya. There are two steps, “both of which are causal, though the causative relationship is differently expressed in respect of each of them”: i. did A treat B unfavourably because of an (identified) something? and ii. did that something arise in consequence of B's disability? “The first issue involves an examination of the putative discriminator's state of mind to determine what consciously or unconsciously was the reason for any unfavourable treatment found. If the “something” was a more than trivial part of the reason for unfavourable treatment then stage (i) is satisfied. The second issue is a question of objective fact for an employment tribunal to decide in light of the evidence.” (Basildon & Thurrock NHS Foundation Trust v Weerasinghe

[2016] ICR 305

b. If the employer knows (or has constructive knowledge) of disability, it need not to be aware when choosing to subject B to the unfavourable treatment in question that the relevant “something” arose in consequence of B's disability (City of York Council v Grosset

[2018] EWCA Civ 1105

). In this case a lack of judgment by a teacher was contributed to by stress, which was significantly contributed to by cystic fibrosis; the Court of Appeal found that it did not matter that the school was unaware that the lack of judgment had arisen in consequence of his disability when s.15(10(a) is applied. If the employer knows of the disability, it would “be wise to look into the matter more carefully before taking the unfavourable treatment”.

c. Trustees of Swansea University Pension and Assurance Scheme (2) Swansea University v Williams

[2015] IRLR 885

. unfavourable treatment is a hurdle, or creating a particularly difficulty or disadvantaging the claimant.

d. There must be some connection between the “something” and the claimant’s disability; the test is an objective test, and the connection could arise from a series of links (iForce Ltd v Wood

UKEAT/0167/18

) – but there must be some connection between the “something” and the claimant's disability.

e. The test was refined in Pnaiser v NHS England

[2016] IRLR 170

, EAT: i. A tribunal must first identify whether there was unfavourable treatment and by whom: in other words, it must ask whether A treated B unfavourably in the respects relied on by B. No question of comparison arises. The tribunal must determine what caused the impugned treatment, or what was the reason for it. The focus at this stage is on the reason in the mind of A, and there may be more than one reason in a s.15 case. The “something” that causes the unfavourable treatment need not be the main or sole reason, but must have at least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it. ii. Motives are irrelevant. The focus of this part of the enquiry is on the reason or cause of the impugned treatment and A's motive in acting as he or she did is irrelevant. iii. The tribunal must determine whether the reason/cause (or, if more than one), a reason or cause, is 'something arising in consequence of B's disability'. That expression 'arising in consequence of' could describe a range of causal links. - it will be a question of fact assessed robustly in each case whether something can properly be said to arise in consequence of disability. This stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator. iv. “It does not matter precisely in which order these questions are addressed. Depending on the facts, a tribunal might ask why A treated the claimant in the unfavourable way alleged in order to answer the question whether it was because of “something arising in consequence of the claimant's disability”. Alternatively, it might ask whether the disability has a particular consequence for a claimant that leads to “something” that caused the unfavourable treatment.”

f. The fact that an employer has a mistaken belief in misconduct as a motivation for a particular act is not relevant in considering s.15 discrimination, in a case where the employer had a genuine but mistaken belief the claimant had been working elsewhere during sickness absence: it is sufficient for disability to be 'a significant influence … or a cause which is not the main or sole cause, but is nonetheless an effective cause of the unfavourable treatment'.' (Hall v Chief Constable of West Yorkshire Police

[2015] IRLR 893

, EAT).

g. Justification: R (Elias) v Secretary of State for Defence

[2006] 1 WLR 3213

: three elements of the test: “First, is the objective sufficiently important to justify limiting a fundamental right? Secondly, is the measure rationally connected to the objective? Thirdly, are the means chosen no more than is necessary to accomplish the objective?”. When assessing proportionality, an ET’s judgment must be based on a fair and detailed analysis of the working practices and business considerations involved, having particular regard to the business needs of the employer. Hensman v Ministry of Defence

UKEAT/0067/14/DM

, [2014]). The test of justification is an objective one to be applied by the tribunal, while keeping the respondent's 'workplace practices and business considerations' firmly at the centre of its reasoning. The test under s 15(1)(b) EqA is an objective one according to which the tribunal must make its own assessment” (City of York Council v Grosset

UKEAT/0015/16

). Under s 15(1)(b) the question is whether the unfavourable treatment is a proportionate means of achieving a different objective, i.e. the relevant legitimate aim. Ali v Torrosian (t/a Bedford Hill Family Practice) [2018]

UKEAT/0029/18

: this objective balancing exercise requires that to be proportionate the conduct in question has to be both an appropriate and reasonably necessary means of achieving the legitimate aim; and for that purpose it will be relevant for the Tribunal to consider whether or not any lesser measure might have served that aim. Although there may be evidential difficulties for a Respondent in discharging the burden of showing objective justification when it has failed to expressly carry out this exercise at the time, the ultimate question for the Tribunal is whether it has done so.

[30]Reasonable adjustmentsa. A failure to make reasonable adjustment involves considering: i. the provision, criteria or practice applied by or on behalf of an employer; ii. the identity of non-disabled comparators (where appropriate); and iii. the nature and extent of the substantial disadvantage suffered by the claimant. Environment Agency v Rowan

[2008] IRLR 20

[2008] ICR 218

''the nature and extent of the disadvantage, the employer's knowledge of it and the reasonableness of the proposed adjustment necessarily run together. An employer cannot … make an objective assessment of the reasonableness of proposed adjustments unless he appreciates the nature and extent of the substantial disadvantage imposed upon the employee by the PCP'. Newham Sixth Form College v Sanders

[2014] EWCA Civ 734

b. Provision, criterion or practice: It is a concept which is not to be approached in too restrictive a manner; as HHJ Eady QC stated in Carrera v United First Partners Research

UKEAT/0266/15

(7 April 2016, unreported), 'the protective nature of the legislation meant a liberal, rather than an overly technical approach should be adopted'. In this case the ET were found to have correctly identified the PCP as 'a requirement for a consistent attendance at work'.

c. Pool of comparators: has there been a substantial disadvantage to the disabled person in comparison to a non-disabled comparator? Archibald v Fife Council

[2004] UKHL 32

[2004] IRLR 651

[2004] ICR 954

: the proper comparators were the other employees of the council who were not disabled, were able to carry out the essential functions of their jobs and were, therefore, not liable to be dismissed.

d. While it is not a breach of the duty to make reasonable adjustments to fail to undertake a consultation or assessment with the employee (Tarbuck v Sainsburys Supermarkets Ltd), it is best practice so to do. The provision of managerial support or an enhanced level of supervision may, in accordance with the Code of Practice, amount to reasonable adjustments (Watkins v HSBC Bank Plc

[2018] IRLR 1015

)

e. The adjustment contended for need not remove entirely the disadvantage; the DDA says that the adjustment should 'prevent' the PCP having the effect of placing the disabled person at a substantial disadvantage. Leeds Teaching Hospital NHS Trust v Foster UK EAT /0552/10, [2011] EqLR 1075: when considering whether an adjustment is reasonable it is sufficient for a tribunal to find that there would be 'a prospect' of the adjustment removing the disadvantage—there does not have to be a 'good' or 'real' prospect of that occurring. Cumbria Probation Board v Collingwood

[2008] All ER (D) 04

(Sep) - 'it is not a requirement in a reasonable adjustment case that the claimant prove that the suggestion made will remove the substantial disadvantage'.

f. The test of 'reasonableness', imports an objective standard and it is not necessarily met by an employer showing that he personally believed that the making of the adjustment would be too disruptive or costly. It is for the tribunal to decide what is reasonable. Lincolnshire Police v Weaver

[2008] All ER (D) 291

(Mar): it is proper to examine the question not only from the perspective of a claimant, but that a tribunal must also take into account 'wider implications' including 'operational objectives' of the employer.

g. RBS v Ashton

[2011] ICR 632

: The tribunal must have consideration of the potential effect of the adjustment – it does not matter what the employer may or may not have thought, the question is what effect the adjustment may have had, if it had been made

h. Latif v Project Management Institute

[2007] IRLR 579

: establishing that a provision, criterion or practice placed the disabled person at a substantial disadvantage was not sufficient to shift the burden of proof. To draw such an inference there must be evidence of an adjustment which appears reasonable, and which would mitigate or eliminate the disadvantage.

i. Employer's knowledge: Gallop v Newport City Council

[2013] EWCA Civ 1583

[2014] IRLR 211

– a reasonable employer must consider whether an employee is disabled, and form their own judgment. The question of whether an employer could reasonably be expected to know of a person's disability is a question of fact for the tribunal (Jennings v Barts and The London NHS Trust

UKEAT/0056/12

, [2013] EqLR 326,) Also, 'if a wrong label is attached to a mental impairment a later relabelling of that condition is not diagnosing a mental impairment for the first time using the benefit of hindsight, it is giving the same mental impairment a different name'. Donelien v Liberata UK Ltd

UKEAT/0297/14

: when considering whether a respondent to a claim 'could reasonably be expected to know' of a disability, it is best practice to use the statutory words rather than a shorthand such as 'constructive knowledge' as this might imply an erroneous test. The burden – given the way the statute is expressed – is on the employer to show it was unreasonable to have the required knowledge.

j. Employment Code of Practice paragraph 6.28: the kind of factors which a tribunal might take into account in deciding whether it is reasonable for a person to have to take a particular step in order to comply with the duty to make reasonable adjustments. These include: a. whether taking any particular steps would be effective in preventing the substantial disadvantage; b. the practicability of the step; c. the financial and other costs of making the adjustment and the extent of any disruption caused; d. the extent of the employer’s financial or other resources; e. the availability to the employer of financial or other assistance to help make an adjustment (such as advice through Access to Work); and f. the type and size of the employer. Witnesses

[31]The Tribunal heard evidence from the claimant. For the respondent we heard from Ms T Jones, Institute Manager who was on both of the claimant’s interview panels and who the claimant would in part be working for; Ms N Hofmans, Executive Officer, who was on the first panel and who the claimant would also be working for; Ms H Brown, Head of HR Systems and Business Process who gave evidence on the HR computerised system.

[32]At the outset of the hearing, the fact of it being a ‘CVP’ hearing, fairness, and the need for reasonable adjustments to the process were discussed. It was agreed that the Tribunal would break at least every hour for 15 minutes – or more if required at any time. The Tribunal carefully monitored the process. The hearing did proceed slower than anticipated in the original timetable, this was consistent with the requirement to ensure that all parties started the hearing and remained throughout the hearing on an equal footing.

[33]No issues were raised during the hearing and we were satisfied that it was conducted fairly, with no prejudice to either party or to any witness.

[34]The Tribunal spent the first half-day of the hearing reading all the witness statements including the claimant’s disability impact statement, and the documents referred to in the statements. At this stage the list of issues (and the issues still in dispute) was still being refined by the parties, this was produced at 2.00pm and submissions made as above.

[35]This judgment does not recite all of the evidence we heard, instead it confines its findings to the evidence relevant to the issues in this case, all of which was known to the parties during the investigation and disciplinary process.

[36]This judgment incorporates quotes from the Judge’s notes of evidence; these are not verbatim quotes but are instead a detailed summary of the answers given to questions.

The relevant facts

[37]The claimant applied for the role of Executive Assistant to the Director and to the Institute Manager of the UCL School of Life and Medical Sciences. The hours of work were specified to be 36.5 days per week, a 9 month probation period. The role holder was responsible for the “administrative and secretarial requirements” of the Director and the Institute Manager.

[38]This included the following duties: provide comprehensive secretarial and administrative support, including managing all correspondence, extensive diary management, arranging appointments; responsible for smooth running of the Director’s office anticipating needs, taking notes at meetings. This is just some of the duties of the role. The full Job Description and personal is at pages 487- 491.

[39]The claimant accepted in her evidence that this was a busy and demanding role, a reactive and fast-paced role. She accepted that at least some elements of her role needed to be undertaken in the office including meeting visitors, answering the phone, dealing with paper post, copying documents, attending meetings, taking notes.

[40]The application form did not contain any section to outline any health or disabilities; she ticked “yes” to question on disability on the equal opportunities form; we accepted her evidence that she stated she had mental health and a chronic long-term physical illness on this form. The equal opportunity monitoring form was separated from the application form and was not seen by managers, it was only used for monitoring purposes.

[41]Issues of health were not raised at the claimant’s two interviews for the role. The claimant says she referred to the importance of flexible working in an answer, saying that flexible working was very important to her. She said her answer referenced “you could grow within role as could have experiences outside of the workplace”. One interviewer records an answer that the claimant is “flexible with ways of working” also that she was prepared to stay late at work (517).

[42]In her evidence the claimant said that she believed the core hours were 10 – 4, not 9-5, also that she was aware that the respondent had flexible working policies applicable to disabled employees that UCL “championed” flexible working, work-life balance and support for disabled employees on its website.

[43]On accepting the offer of employment the claimant was asked to fill in an online pre-employment UCL staff registration form, on which she said “yes” to the question “Are you disabled or do you have a condition which may require adjustments to your work…?” (503).

[44]The claimant’s evidence was that when she filled in the equal opportunity form and then the staff registration form she assumed that it would generate some kind of contact from Occupational Health, that it had done so in previous roles. “So I did not think this information would be locked away and no one would see it.”

[45]The respondent’s case at Tribunal was that it only undertakes automatic preemployment health checks for certain roles (for example clinical or lab roles). It says that its policy is to carry out health checks for all disabled employees when they raise any underlying health issues with their line manager.

[46]Ms Brown’s evidence was that the staff registration form and the question about requirements for reasonable adjustments would be pulled through to the HR system, that the information on the system as printed in the bundle, including the ‘yes’ to disability on the staff registration form appeared to come from the HR data system.

[47]In her evidence, Ms Hofmans was taken to documents produced after the claimant’s resignation a q&a with the Business Process Advisor in HR who confirmed that when the employee ticked ‘yes’ to disability “they would be made aware that they will be contacted [by OH] to assess their requirements and to advise the manager of any reasonable adjustments that are needed” (824). She confirmed that she understood this was the process which should have been followed.

[48]Ms Hofmans also confirmed that the aim was to ensure that adjustments were in place before a start date to avoid any disadvantage to a disabled employee. She confirmed that had this occurred in practice, there would have been a referral to OH to consider reasonable adjustments for the claimant.

[49]Ms Tansey accepted that the induction/probation policy (416-8) states that its aim is to ensure any reasonable adjustments can be made before start date – that there is an “expectation” that prior to starting there would be an express consideration of reasonable adjustments, which would then be picked up by managers after the employee has started.

[50]The claimant’s employment commenced on 7 May 2019. She did not raise issues of flexible working / adjustments with her managers when she started in role. She said, and the Tribunal accepted her evidence, that she was expecting at this time an OH referral and that the issue of adjustments would be brought up then.

[51]On her first day of work she had an induction and the claimant was told there was no flexibility in the role, it was 9-5 at her desk. The claimant’s evidence was that “I thought I needed flexibility, what am I going to do and I panicked, this was my first day.” She did not raise this as an issue with her manager.

[52]The claimant’s evidence which we accepted was that she wanted information on adjustments to be made to her managers by OH, to avoid any unintentional but potentially damaging reaction to the request if it came from her.

[53]Ms Hofmans accepted in her evidence that she did not specifically refer to ‘reasonable adjustments’ with the claimant; she thought she would have asked if any support was needed as part of her induction. She accepted that employees may be reticent to raise issues of reasonable adjustments.

[54]The claimant did email the HR Manager Ms Capelan on two occasions asking for HR inductions, 21 May and 3 June 2019 (690-91). She did not say at any stage that she wanted to discuss issues of health and adjustments. We accepted that at this point the local HR team did not know that the claimant had a disability. The claimant’s induction checklist information had not been sent to local HR or to the claimant’s manager.

[55]The claimant was off work 5 – 12 June 2019 giving symptoms of temperature, headaches, achy muscles and shaky. The claimant accepted that her managers were supportive and it was reasonable for them to make enquires about her likely return to work.

[56]In the claimant’s return to work interview she and her manager agreed that she did not need a referral to OH (567); in her evidence the claimant said she did not believe this was necessary for the flu. Other health issues were not mentioned.

[57]On 14 June 2019 the claimant emailed Ms Hofmans saying she had an appointment on 24 June and wanted the afternoon off. The claimant was told that this may be an issue, and was asked whether she could change the appointment to the of the day. Ms Hofmans confirmed in her evidence that appointments would normally be expected to be taken at the beginning or end of the day, that she believed this to be a routine GP appointment. She said that if she had understood this to be a specialist appointment the claimant would not have been asked to change this, that a disability-related appointment would be accommodated. We accepted this evidence.

[58]On 17 June 2019 the claimant took sickness absence; her mother emailed Ms Hofmans saying that the claimant “is having a bipolar relapse. She is awaiting an appointment with her GP …. Due to her current state and symptoms she is not contactable, and having to attempt communicating people could cause her to deteriorate please send any communication to this email…” *569).

[59]In response Ms Hofmans sent two emails – the first was to ask to pass on to the claimant “our best wishes” and to pass on when the claimant could be contacted. The second said that on advice they would have to write to the claimant “as we are under obligation to liaise with her direct…” (570).

[60]The claimants Fit note dated 17 June 2019 refers to her being not fit for work because of Bipolar disorder to 1 July 2019 (571). The claimant emailed this to HR (the central HR team) on 19 June saying that she had bipolar and crohn’s disease complications, that she was only able to communicate effectively intermittently, and to give her consent to her mother being emailed. She said her medication was being increased and an additional medication prescribed, and was waiting to hear back from the Crisis team. She referred receiving physiotherapy twice a week (581).

[61]Ms Hofmans was unaware of the receipt of the sick note of the claimant’s email. She emailed a letter to the claimant on 19 June 2019, saying that she was to be referred to OH, also referring to the first probation review meeting, saying that once the OH report has been released “we will need to schedule a meeting to discuss the OHW recommendations and workplace support which may be available, as well as the following probationary review requirements”. It listed 4 bullet points of probation checklist, including feedback on performance to date; progress against induction checklist and objectives/targets; further training or development needs. It said that she could have a colleague or TU rep at the meeting (573-5).

[62]This emailed letter panicked the claimant – this did not seem like a standard probation meeting. As she said in her evidence “I was absolutely terrified when I read this letter. Because it was a bipolar relapse, you focus …. It may not be in the intention but the tone of the letter caused that reaction. … this is a disciplinary type not a standard probation meeting. … it’s uncomfortable to read now … it is not appropriate – there should be separate meeting for adjustments and then a probation meeting. All at once would have been intense and quite overwhelming.” The Tribunal accepted that this was the claimant’s response, and that she felt overwhelmed and terrified on reading this letter.

[63]Ms Hofmans evidence was that she received advice from HR to send this letter that she took this advice at face value in sending the letter. She was not aware that her mother had said at this time letters should be sent to a different email address, she had been told there was a duty of care to stay in touch. We accepted this evidence.

[64]On the same day Ms Hofmans referred the claimant to OH and asked OH to get in contact with her asap, given the concern she had (576).

[65]On 21 June 2019 OH admin emailed the claimant saying that she had indicated she was disabled. “We hope you have felt able to discuss any specific needs you have with your manager. If you would like any further support or advice …” (587).

[66]The first available OH appointment was 9 June and details were emailed to the claimant’s email.

[67]On 28 June her mother emailed OH saying that despite receiving an acknowledgement from HR of her sicknote, her absence was being treated as unauthorised “this contact has caused quite a deterioration in Rachael’s physical and mental state”. She asked OH to ensure that her manager had the sicknotes she attached to this email (586). The sicknotes (but not the covering email) were forwarded by OH to Ms Hofmans the same day (589-90). Ms Hofmans sought advice from HR.

[68]Ms Hofmans evidence was that local HR was not aware a sick note had been sent in – as this had been sent to a central HR email address. She had been advised to say that this was an unauthorised absence. We accepted this evidence.

[69]The OH report said that the claimant was unable to return to work at this time, that she would require a stress risk assessment on her return; that another adjustment could be to consider where the acceptable level of absence lies; and to have regular meetings with her to enquire of her wellbeing and provide support. It said that she was likely to be considered disabled under the Equality Act 2010 (596-99).

[70]For the claimant, this OH report was “shambolic”. She was not asked questions about reasonable adjustments, she was left to discuss these with her manager. Her bipolar was bad at this time. The Tribunal accepted the claimant’s perception. We also accepted that at this time she was unable because of ill health to discuss adjustments with her manager. We accepted that the claimant believed it would have been better for OH to make these suggestions.

[71]However, we did not agree that it was necessarily a bad thing for the claimant, when she was able, to discuss her suggestions with her manager. At some point she would have had to engage with her manager about the detail of how these could work. The claimant knew what adjustments had worked in past roles – as she said in her evidence, “I had adjustments in previous jobs and they had worked.”

[72]The claimant gave evidence as to why she had not engaged with the request to consider adjustments “I had told them about disability - I was met with accusations that I had had not told them, this made me fell attacked, I was being called a liar. And saying ‘having a rep’ did not make me feel supported and encouraged. . I said I had informed UCL and I was being told I had not informed anyone about disability.... I struggled to trust employer…”

[73]The Tribunal felt that while the claimant wanted to rely on OH to suggest adjustments, in practice all OH would have been doing was relaying the claimant’s suggestions. At some point the claimant would need to make these work with her manager and we did not accept that the claimant could not, when fit to do so, discuss with her manager the adjustments she believed would work. We considered that the reference in the OH report to a risk assessment would have been an ideal opportunity for the claimant to discuss adjustments with her employer.

[74]The claimant initially refused for the OH report to be released; her mother emailing saying there had been no discussion about adjustments, the referral letter had not been seen by the claimant, also there had been a subsequent request for a meeting to manage her absence. Her mother referenced the respondent’s Induction Policy: “Before start date: ensure any reasonable adjustments can be made for individuals before their start date”. The email stated that because this had not taken place, “my daughter’s health deteriorated significantly”. She said that the claimant would not be attending the meeting as she had a medical appointment that day (612-3).

[75]Ms Hofmans responded to the claimant’s mother on 5 August 2019 forwarding the OH referral form and apologising for not sending it earlier. She said that the OH report was for the claimant to address with OH confidentially. She referred to the Induction Policy, saying that as she had not been aware of underlying health conditions the issue of ensuring reasonable adjustments before start date “…were not carried out. … .these activities will [now] be progressed.”

[76]The letter said that Ms Hofmans wanted to meet with the claimant when fit to return “the purpose of the meeting” was to discuss the OH report, undertake a risk assessment and “…explore the options for reasonable adjustments” to support her; also to agree the date of a probation review meeting “… at which we will review actions agreed to support her return to work.” (615-6).

[77]For the claimant, the issue was that she needed to discuss reasonable adjustments with OH, that she was too ill and could not sit and discuss reasonable adjustments with the manager. She said in her evidence that her experience was that OH would made suggestions and it would be for managers to decide if suitable. We considered, as above, that OH had at this stage made some suggestions, that when well enough it was for the claimant to discuss these, and other potential adjustments, with her managers.

[78]On 8 August 2019 the claimant’s solicitors wrote a detailed letter to Ms Capelan by email making allegations of s.13 and s15 EqA discrimination, detailing failures to make adjustments, and saying that her sickness absence was “a direct consequence of the treatment to which she has been subjected”. The letter sets out adjustments – including flexibility to attend medical appointments; the option to work from home; to start work early; having someone else take phone messages when she was not in the office; a phased return and referring her to OH; paying full sick pay until adjustments have been implemented. The letter seeks payment for all loss of earnings suffered as a consequence (617- 620).

[79]The claimant accepted that her solicitor had made these suggestions of 8 adjustments from what she had been given in her previous employment – she had got these “from looking at old OH referrals”.

[80]The respondent’s lawyers responded on 3 September 2019, saying first that it wished to address the issue of reasonable adjustments required, that the claimant had not initially informed her manager of her medical conditions; but that the respondent now wished to get medical assistance to understand “the implications this has for her role and an opportunity to consider what adjustments could be made…”; that this may also include a possibility of another role “where adjustments could be more readily accommodated…”. It them dealt with and denied the allegations made by the claimant before reiterating the request for the claimant to agree to a medical report (634-7).

[81]On 20 September 2019 the claimant raised a grievance: it commented on the respondent’s solicitor’s letter stating that her lawyer had suggested adjustments, the respondent had failed to follow its own policies; that the offer was only to “go through the motions” before dismissing her (644-653).

[82]The claimant attended an OH appointment on 4 October 2019. The OH report the same date states that the claimant’s crohn’s disease was very unpredictable and severe and not currently responding well to treatment and with significant symptoms. “Her condition is adversely affected by stress and she is currently experiencing a high level of stress”. It referred to the Bipolar disorder. It stated it was “difficult to predict” when she would return to work. Adjustments to be considered include flexible working; homeworking from time to time; allowing attendance to medical appointments and therapy by working around the appointments; that communication needed to take place with management, but she struggles with phone and is no fit to meet in person “I am unable to give an timescale for when this could change”. Apart from a meeting via representatives, or email communication only “It is difficult for me to see how this situation can be resolved” (665-6). The claim was issued on 23 October 2019.

[84]The grievance hearing took place without her – she submitted 18 documents as evidence and saying she would answer q&a. questions were sent to her and she responded. As a consequence the grievance panel asked on 29 November 2019 for further questions to be considered – regarding the claimant’s disclosure of disability and the respondent’s “obligations at that time”. It asked for a swift investigation on this issue (749).

[85]The grievance dated 14 February 2020 partially upheld her complaint. It accepted that the respondent should have made further enquiries about the claimant’s disability, but failed to do so. The outcome states that the OH no longer routinely contact new members of staff who disclose disability: that the disclosure should be to a manager by the employee following which an OH referral can be made. Also, the claimant did not disclose to her managers, so they were not aware of the need for adjustments. Clearer guidance around disclosures at staff registration stage needed to be made. No other allegations were upheld; for example sick pay was paid in accordance with the respondent’s policy; the respondent’s communication with the claimant was “fair and dutiful” there was no lack of flexibility as no one was aware of the claimant’s disability when discussing hours of work; adjustments were no carried out as no one was aware they were needed.

[86]The claimant says that she needed adjustments as set out in the list of issues 3.1 – but that she would not need all of these adjustments all of the time. Her medical appointments would likely be once a week; that the crohn's flare up can be unpredictable and she may have to work from home sometimes, or she may have to travel in a little later. She says in her last role she had to work from home 3 times in a year. We accepted this evidence.

[87]Ms Hofmans gave evidence on the need for 9-5 in the office. Her evidence was that when the claimant started work there was only her and the claimant in the office. She said that there was recruitment in July 2019 for a Deputy to the Assistant Manager, that this was known when the claimant was appointed. Her view was that “we could provide cover with 3 people” at this time. Submissions

[88]We considered the oral and written submissions of the parties. The arguments made are incorporated into our ‘conclusions, below. Conclusions on the evidence and the law Disability – knowledge

[89]The respondent accepts constructive knowledge of disability – as it received a confirmation from the claimant she was disabled prior to her employment starting. It argues that it is a large organisation with changing systems and effectively there are gaps as to what happened with this information.

[90]But Ms Jones and Ms Hofmans did not have actual knowledge of disability, argues the respondent. We accepted this. The claimant did not tell her managers, and was waiting to discuss with HR at a private meeting and then to discuss adjustments with OH. The respondent accepts that this was not an unreasonable position for the claimant to adopt; but it does mean that the claimant’s managers were not aware of her disability prior to 17 June 2019.

[91]We noted the test in DWP v Alan - ought the employer or have known both that the employee was disabled and that his disability was liable to affect him in the manner set out in [the EqA]? There is no duty on the employer unless it knew, actually or constructively, of the claimant’s disability and that the claimant was likely to be placed at a substantial disadvantage.

[92]We concluded that that by its own systems and policies, the respondent had knowledge of disability – that by its own systems it was meant to arrange an appointment to discuss potential reasonable adjustments before the start of employment. It failed to do so. The Tribunal concluded that had it done so it would have been aware of the claimant’s disabilities prior to the start of employment and it would have been aware that the claimant was at a substantial disadvantage in at least some aspects of the role and how it was to be undertaken.

[93]We concluded that the respondent should reasonably have been aware that the claimant had crohn’s disease and bi-polar disorder prior to the start of her employment. Reasonable adjustments - PCPs

[94]Not implementing reasonable pre-employment health checks to all employees including C who informed R that they considered themselves to be disabled:a. The respondent’s position is that it only carries out automatic preemployment health checks for certain roles; that it is for the employee to raise any underlying health issues with their manager.

b. The tribunal noted the evidence that the actual policy was for the respondent’s HR team to pick up on a ticked disability box and engage with the starter prior to their start date, to enable adjustments to be discussed prior to joining. This was accepted by Ms Jones and Ms Hofmans in their evidence.

c. The tribunal concluded that there was a policy of having pre-employment health checks where the disability box is ticked, but that the actual practice in place was not to have pre-employment health checks. We noted the evidence at 824, the employee will be made aware that they will be contacted by OH.

[95]Requiring employees including C to attend work during normal contracted hours 9 am to 5pm (or requiring that of employees including C during their probationary period). This is an agreed PCP.

[96]Requiring employees including C to carry out her work at the normal place of work. This PCP is agreed.

[97]Not having someone else available to take phone messages or amending the voicemail answer to reflect that when C would be able to reply. This PCP is agreed.

[98]Only paying limited sick pay when employees including C are on sick leave due to a disability, and where R has not implemented other reasonable adjustments to facilitate C’s return to work (and or recouping overpayments). It is accepted that employees on sick leave are paid in accordance with R’s Sickness Absence Policy. It is disputed that R failed to make reasonable adjustments for C. Substantial disadvantage

[99]We next considered whether the PCPs placed the claimant at a substantial disadvantage. The substantial disadvantage relied upon is the access to and ability to work successfully in the role. In noting that the test is an objective one, and that a substantial disadvantage is one that is more than minor or trivial we concluded as follows:

[100]We accepted the claimant’s contention that disabled employees with bi-polar and/or crohn’s disease are likely to require reasonable adjustments, and that failing to implement pre-employment health-checks meant that no adjustments were put in place prior to the start of her employment. This means that the claimant was starting her role without any consideration of reasonable adjustments.

[101]We concluded that this practice put the claimant at a substantial disadvantage in comparison with non-disabled new starters, who would not need a preemployment health check. This practice - of no health checks - was applied to all employees of the respondent.

[102]We accepted that requiring a fixed work shift of 9-5 could have an adverse impact on employees suffering from crohn’s and from bi-polar disorder and that it did so with the claimant. This shift means that the claimant was travelling into central London at peak rush-hour. We accepted that this caused the claimant an increase in crohn’s symptoms. We did not accept the respondent’s contention that arriving at work at 8.00 would mean tubes into central London would be no less busy. We accepted the claimant’s evidence that at least part of her route into work would be less busy at 7.30 than 8.30am. We concluded that this practice put the claimant at a substantial disadvantage in comparison with non-disabled new starters, who would not have difficulty travelling at rush hour. While the respondent operated flexible hours, the Tribunal accepted that the 9-5 hours applied to employees in similar roles, i.e. EAs working for senior managers.

[103]We also accepted that the requirement to work in the office would cause a substantial disadvantage to the claimant, as a result of the symptoms of bi-polar and/or crohn's. We accepted that this would mean that the claimant and others with these conditions would be able to work but may have significant difficulty travelling to work when symptoms are increased. We also noted that the claimant had some difficulties while at work, including focussing at work on occasion. We concluded that this practice put the claimant at a substantial disadvantage in comparison with non-disabled new starters, who would not need to work from home for disability-related reasons. This PCP of working full time in the office would have been applied to all employees in the same or similar role.

[104]One of the reasons why the claimant was required to attend the office was to take telephone messages. We accepted that a requirement to attend work instead of working from home would amount to a substantial disadvantage. It meant that an employee would be required to attend work to take messages on days when they were too unwell to travel and when at least some of their role could otherwise be undertaken from home. This practice put the claimant at a substantial disadvantage in comparison with non-disabled new starters, who would not to work from home; this PCP applied to all employees in similar roles.

[105]The failure to pay sick pay: the claimant’s argument was that this absence arose from the failure to make reasonable adjustments; and non-payment of salary resulted in a loss of salary as well as increased stress. We accepted that this amounted to a substantial disadvantage. We concluded that this practice put the claimant at a substantial disadvantage in comparison with non-disabled new starters, who would be less likely to fall sick early on in their employment. This PCP of no sick pay was applied to all employees of the respondent at this stage of their employment. Knowledge of Substantial Disadvantage

[106]The respondent failed to undertake a pre-employment health check or any other way of determining whether adjustments were required. We accepted that had it done so it would have known of the claimant’s medical conditions and the disadvantage she was placed under by the PCPs. We concluded that the respondent ought reasonably to have known of the substantial disadvantage before the claimant commenced employment. We concluded that the respondent had constructive knowledge of the claimant’s conditions of bipolar disorder and Crohn’s disease.

[107]We noted also that Ms Hofmans and Ms Tansey accepted that once aware of her disabilities, they would have known that the claimant was placed at a substantial disadvantage by way of the PCPs.

[108]We accepted that had the respondent referred the claimant to OH prior to her employment starting, that the respondent would have had knowledge of disability. There would have been the opportunity to consider adjustments at this time. Reasonable adjustments

[109]Providing pre-employment health checks for all staff who disclose on the Equal Opportunities Form and/or the Staff Recruitment Form that they are disabled. The tribunal concluded that this was a reasonable adjustment that the respondent could have made. It was its policy to undertake health checks and enquire about reasonable adjustments, but it had adopted a practice of not doing so. We concluded that there was a real prospect that had this adjustment been put in place, the disadvantage the claimant suffered – starting work without adjustments in place – would have been alleviated. A health check would have enabled the claimant to discuss the adjustments she believed could be necessary, and for her employer to assess whether these adjustments could reasonably be made.

[110]We considered separately the issue of “enquiring about reasonable adjustments for all staff”. We did not consider this to be a reasonable adjustment – per Tarbuck it is not a failure to make an adjustment to fail to consult with an employee about adjustments, although it is wise to do so.

[111]Flexibility to allow her to attend regular medical appointments, in respect of Bipolar Disorder and Crohn's disease: the respondent’s position was that these were twice weekly for two years, that this would be two afternoons a week at least. The role was one which required the claimant to be physically present, and during these appointments she would not have been doing any work. this was not a practicable adjustment.

[112]We noted Ms Hofman’s evidence – that while it would have been difficult to arrange cover for regular appointments, this would change in July 2019 when a Deputy to Assistant Manager would be recruited, making it three employees based in the same area who could pick up calls etc. She also said that appointments for disability-related absences could be accommodated. We noted also that the claimant’s evidence was that it would not be two appointments every week, that while there was a regular physiotherapy session this was not twice a week. We concluded based on this evidence that this was an adjustment which could be accommodated for a weekly appointment with the claimant leaving work mid-afternoon once a week. We also concluded that this adjustment would have a benefit – it would enable the claimant to receive treatment which would assist her medical conditions. There was a real prospect that this would be an effective adjustment for the claimant.

[113]The option to work from home if she was not fit enough to travel to the office (as with her previous employer), in respect of Crohn's disease: the respondent accepted that “infrequent” working from home would be the same as covering the absence of a sick employee; that this could be accommodated. We accepted also Ms Hofmans evidence that much of the role cannot be done from home, but that irregular/infrequent absences from the office working from home could be accommodated. We agreed that this would be a reasonable adjustment which could be made; this was on Ms Hofmans and Ms Jones evidence. We again considered that there was a real prospect that being able to work from home on a very occasional basis (the claimant’s evidence was 3 times in 11 months in her last role) would be of benefit in minimising her symptoms.

[114]Allowing her to start early to avoid rush hour traffic, in respect of Crohn's: we noted that Ms Jones accepted that cover could have been provided from 4-5pm. Ms Hofmans evidence was that with three people in the office the 3rd person covers. We noted also that until we heard from Ms Hofmans on this issue, we were not made aware that a 3rd person would shortly be employed in the same office as her and the claimant. We considered as a consequence that the adjustment was more likely than not to succeed and that it would be of benefit to the claimant. This is despite the medical evidence saying that different travel times would not necessarily assist the claimant. We accepted the claimant’s evidence based on her knowledge of her conditions that an earlier start time was less stressful and would be of benefit to her medical conditions.

[115]If she had to attend medical appointments or her hours were flexible, having someone else to take phone messages or amending the voicemail answer to reflect that when she would be able to reply, in respect of Bipolar disorder or Crohn's: we noted again Ms Hofmans evidence, that this would have been a practicable solution when a 3rd employee was recruited. We did not accept the respondent’s argument that this would have been for 11 hours a week – we did not accept that there would be two appointments per week, we also accepted that there would be a degree of cover for calls, particularly when the third member of the team was recruited. For example if the claimant was taking notes in a meeting, she could not take a call, and we accepted that this would be a rolling duty when a member of staff was not at their desk. We considered that when medical appointments during working hours were required, it was a reasonable adjustment for someone else to take messages. There was a real prospect that this adjustment would assist in alleviating disadvantage as it would enable her to receive treatment to benefit her medical condition.

[116]Allowing the claimant to return to work on a phased return or allowing her to work from home for a period, in respect of Bipolar disorder and Crohn's: the respondent accepts that this would have been reasonable adjustment it wold have made.

[117]Paying full pay during sick leave until all reasonable adjustments have been implemented in respect of Bipolar disorder and crohn’s: the claimant’s position is that it would be reasonable as the only reason for the absence was because there was a failure to make reasonable adjustments. The respondent’s view was that only in exceptional circumstances should full pay be payable; it is established law that paying full pay is not a reasonable adjustment as it does not assist the employee to undertake their role.

[118]We concluded that on the evidence we had heard, we could not consider the failure to pay full pay amounted to a failure to make a reasonable adjustment. At no stage was the respondent given evidence to show that its actions had caused the claimant’s injuries. At tribunal we saw no evidence to show that the respondent’s actions caused the claimant to go off work and stay off work. We accept that this is the claimant’s case, but we also considered that it is possible that the claimant may have taken sick leave at some point in any event at this time or shortly thereafter absent the acts of discrimination. We therefore considered that this was not a reasonable adjustment which the employer should have made. We did accept that this is an issue of causation for loss at a compensation hearing.

[119]Accordingly the following claims of a failure to make a reasonable adjustment succeed:a. Providing pre-employment health checks for all staff who disclose on the Equal Opportunities Form and/or the Staff Recruitment Form that they are disabled.

b. Flexibility to allow her to attend regular medical appointments, in respect of Bipolar Disorder and Crohn's disease;

c. The option to work from home if she was not fit enough to travel to the office (as with her previous employer), in respect of Crohn's disease;

d. Allowing her to start early to avoid rush hour traffic, in respect of Crohn's;

f. Allowing her to return to work on a phased return or allowing her to work from home for a period, in respect of Bipolar disorder and Crohn's; Discrimination arising from disability

[120]Was the Claimant treated unfavourably by the Respondent because of something arising from her disabilities? Alleged unfavourable treatment

[121]Failing to identify and/or implement reasonable adjustments (Crohn's disease and Bipolar Disorder): the essence to this claim is the failure to have a preemployment health check or any OH check thereafter which could identify the adjustments needed. The respondent accepts constructive knowledge of both medical conditions.

[122]We concluded that this was unfavourable treatment. The respondent accepts in its submissions that it could amount to unfavourable treatment. The claimant was expecting a OH check to take place, she wanted it to occur. We concluded that if it had occurred it is possible that adjustments could have been put in place prior to her starting work. Instead she started work without adjustments, and felt on the back foot because of the settled view she had been given that the hours of the role were fixed and would not be changed.

[123]Requiring / requesting that the Claimant attend medical appointments outside working hours or only at the beginning or end of the working day (Bipolar Disorder): again, we concluded this was unfavourable treatment – the claimant was potentially going to lose the benefit of treatment she had been waiting for some months.

[124]Contacting the Claimant while she is off sick and/or requiring her to attend Disorder: we again accepted that this was unfavourable treatment. It was not as characterised by the respondent in its submissions a standard progress report/route map and consideration of the condition. The context here was the implication for her probation – and the suggestion she could have a colleague or TU pre present. We concluded that the letter was unfavourable as it was sent to the claimant when she was very unwell, and we found that this letter did exacerbate her medical symptoms. In saying this we would emphasise that this letter contained issues which were entirely legitimate issues for the employer to discuss – the OH report and issues about probation and progress. The unfavourable treatment was to send the information about the probation hearing/right to be accompanied at this time.

[125]The text message sent to the Claimant on 25 June 2019 whilst she was on sick leave: this text is where the claimant was told her leave was unauthorised. This was incorrect; also the claimant had said she was not in a position to receive messages, and had authorised her mother to do so that receiving such mail exacerbated her disability. We considered this amounted to unfavourable treatment.

[126]The letters sent by Ms Hofmans to the Claimant dated 19 June 2019 and 23 July 2019: as above.

[127]Only paying sick leave when the Claimant was on sick leave because other reasonable adjustments have not been implemented, and or recouping overpayments (Crohn's disease and Bipolar Disorder): again, we accepted that a failure to receive full pay amounts to unfavourable treatment. Something arising from disability:

[128]The Claimant relies upon the following as the 'something arising from' her disabilities: The need for the Claimant to attend medical appointments and the claimant’s sick leave from 17 June 2019. It was clear to us that both amounted to something arising in consequence of disability – the medical appointments and the sick leave were both directly connected to her disabilities. Was as the unfavourable treatment because of something arising from her disability?

[129]The respondent argues that if there was any failure to identify adjustments, it was not because of the claimant’s absence from work or requirement for medical appointments. It was when the claimant was off work that she was referred to OH and adjustments were identified. One suggested adjustment – a risk assessment - could have led to adjustments being discussed and implemented. Further adjustments were identified on 4 October and via solicitor’s letter. Thereafter the respondent stated it wished a further medical opinion, which had a condition suggesting that the claimant’s role may be changed which, we found, led to a legal impasse while proceedings were issued.

[130]We concluded that the claimant’s absence from work or her medical appointment requirements was not a cause or factor in the failure to identify adjustments; that this unfavourable treatment was not because of her absence from work of because of her requirement for medical appointments. It was the failure to undertake a preemployment health check which was the cause of the failure to identify adjustments. We accepted that after the claimant had gone of sick, some adjustments were suggested by OH. As stated above, when the claimant was well enough these could have started the basis of a discussion about adjustments. Accordingly, the claim that the failure to identify adjustments arose from the claimant’s sick leave or requirement for medical appointments fails.

[131]The unfavourable treatment of requiring the Claimant attend medical appointments outside working hours or only at the beginning or end of the working day (Bipolar Disorder): the requirement for medical appointments arose from the claimants’ disability and the respondent’s policy of denying the request for leave was because this was a medical appointment in working time. A significant factor for this unfavourable treatment was the fact it was in the respondent’s view a GP appointment. We concluded that a significant cause of this treatment was the medical appointments which arose from disability.

[132]Contacting the Claimant while she is off sick and/or requiring her to attend Disorder: did this treatment occur because of something arising from her disability? The answer is yes – as it arose from her sickness absence which was because of her disability. We concluded the same with the texts and letters as above.

[133]The failure to pay full sick pay during the claimant’s sickness absence was clearly something which arose from her disability, the reason why she as on sick leave was because of her disabilities and the respondent was aware from the date of this absence she had bipolar disorder.

[134]We next considered the respondent’s legitimate aims: The Respondent relies on the following legitimate aims:a. to ensure that employee development and performance can be appropriately and properly measured

b. to ensure business continuity during employee leave; and

c. the robust management of employee sickness absence.

d. The need to ensure the office was appropriately resourced

e. Managing employee absence for medical appointments in line with business needs.

[135]We concluded that all were clearly legitimate aims for any employer.

[136]Were these aims achieved proportionately? We noted that the respondent relies on its job specifications, job tasks, and expectations in the role which were known to the claimant at interview and beyond. It also relies on the attempts to engage with the claimant after her sickness absence started. We noted also that the respondent is flexible and allows employees to take medical appointments, but for them to be arranged early or later in the day if possible.

[137]We noted the concessions of the respondent’s witnesses: that the claimant could and would have been given time off work for medical appointments during the working day if these could not be changed; that when the third employee in the office was recruited the sharing/allocation of duties would have been much easier. We concluded that it was not a proportionate means of achieving the legitimate aim of resourcing office/managing employee's absences to refuse to allow an employee to take time off in the working day, given the concession of the witnesses on this point.

[138]Contacting the Claimant while she is off sick and/or requiring her to attend Disorder: we concluded that it was proportionate means of achieving the legitimate aim of robustly managing sickness absence for the respondent to contact the claimant while off sick, in order to manage sickness absence. Employers need to keep in touch with their employees during sickness absence. This included the letters and texts sent to the claimant, even if there was a mistake in one text as the claimant had submitted a medical certificate.

[139]However, we did not conclude that it was a proportionate means of managing sickness absence or, for example, ensuring development and performance can be maintained, to add into a letter about sickness absence a reference to a probation review and issues to be addressed at this meeting and the right to a colleague/TU member. This is clearly a work-related issue. The claimant knew that she was on probation, and would have been aware of the need for a review meeting at some point. This letter strongly implies that the respondent has issues with the claimant’s performance. We concluded that it is not a proportionate means of achieving this aim to inform an employee who is clearly very ill of a formal probation meeting with colleague/TU present. Accordingly, this part of the allegation succeeds.

[140]We concluded that it the respondent acted proportionately and in accordance with its legitimate aim in not paying the claimant full pay during her sickness absence. It would rarely be proportionate for an employer to do so it was, we considered both appropriate and reasonably necessary to manage employee sickness absence to pay a contractual entitlement only; in this case SSP. We did not consider that a lesser measure – i.e. to pay a proportion of pay or full pay, would have met this legitimate aim.

[141]We noted the concessions of the respondent’s witnesses: that the claimant could and would have been given time off work for medical appointments during the working day if these could not be changed; that when the third employee in the office was recruited the sharing/allocation of duties would have been much easier. We concluded that it was not a proportionate means of achieving the legitimate aim of resourcing office/managing employee's absences to refuse to allow an employee to take time off in the working day, given the concession of the witnesses on this point.

[142]Contacting the Claimant while she is off sick and/or requiring her to attend Disorder: we concluded that it was proportionate means of achieving the legitimate aim of robustly managing sickness absence for the respondent to contact the claimant while off sick, in order to manage sickness absence. Employers need to keep in touch with their employees during sickness absence. This included the letters and texts sent to the claimant, even if there was a mistake in one text as the claimant had submitted a medical certificate.

[143]However, we did not conclude that it was a proportionate means of managing sickness absence or, for example, ensuring development and performance can be maintained, to add into a letter about sickness absence a reference to a probation review and issues to be addressed at this meeting and the right to a colleague/TU member. This is clearly a work-related issue. The claimant knew that she was on probation, and would have been aware of the need for a review meeting at some point. This letter strongly implies that the respondent has issues with the claimant’s performance. We concluded that it is not a proportionate means of achieving this aim to inform an employee who is clearly very ill of a formal probation meeting with colleague/TU present. Accordingly, this part of the allegation succeeds.

[144]We concluded that the following claims of discrimination arising from disability succeed:a. Requiring / requesting that the Claimant attend medical appointments outside working hours or only at the beginning or end of the working day.

b. Contacting the Claimant while she is off sick requiring her to work-related attend meetings

Remedy

[145]A remedy hearing was provisionally listed for 11 October 2021. Given the delay in promulgating this judgment, this hearing is converted into a 1 hour Case management discussion by CVP at 10.00am at which directions for a Remedy hearing will be given. REMEDY JUDGMENT The claimant is awarded the sum of £157,500.76 Total award for loss of earnings £65,021.76 Pain suffering and loss of amenity £79,702.00

[3]Injury to feelings: £12,777.00 The above sums include grossed up elements and interest at 8% on relevant awards. The calculation is set out below.

Remedy

[1]The award was made, and reasons were given at the Hearing, written reasons were requested.

[2]Following the hearing, the parties wrote to the Employment Tribunal to agree that there was an error in the calculation for grossing up. The parties did not agree the position on how much of the award should be grossed-up. For the reasons set out below, we concluded that the compensation for post-dismissal earnings should be grossed-up, that the loss of income for pre-dismissal loss of earnings do not fall within the s.401 Income Tax (Earnings and Pensions) Act 2003. Preliminary issue

[3]The respondent sought a postponement prior to the hearing, and I made a decision that the hearing should go ahead. The respondent accepts this decision but wished to highlight the prejudice to its position. The claimant has served a revised schedule of loss a week before this hearing which triples the loss claimed.

[4]Ms Patterson said that there are three new points on causation in the claimant’s witness evidence – for example the claimant now argues that the respondent’s actions towards her caused her fistulas; that the reason for a stoma in August 2022 was the respondent’s conduct. These are new allegations, and the respondent has not had time to prepare for them.

[5]Ms Patterson accepted that these are issues of causation in the claim, that these were potentially issues evidence in the case. But she highlighted the unfairness of not being able to produce evidence relating to what she considered to be new claims. This issue is considered in the conclusions section below.

The evidence

[6]We heard witness evidence from the claimant. The parties jointly instructed two medical experts to address issues of medical causation. The experts are:• Dr M J Glynn, Consultant Physician and Gastroenterologist/ Hepatologist

• Professor T Fahy, Professor of Forensic Mental Health, who had also provided a report for the liability hearing.

[7]Dr Glynn’s report states he was asked to prepare a report addressing issues of causation and prognosis, if there is a causative link between the discriminatory actions and any deterioration or exacerbation of Crohn’s Disease and/or IBS.

[8]Dr Glynn’s report details “facts gleaned from the medical records”. These include reference to surgery in 2021 for fistulas (276). The report records the claimant “detailing the timeline” of her Crohn’s disease, as follows:-• Crohn’s Disease diagnosed July 2003

• … [several other entries]

• November 2020 – new perianal fistula

• June 2021 - surgery for perianal fistular and placement of Seton

• On waiting list for Ileostomy formation and more surgery for the fistula

[9]Dr Glynn answered questions having interviewed the claimant and considered medical records, his answers in summary are:• Question 1: A failure to undertake pre-employment health checks likely had a “direct causative effect of increasing her stress levels at work, which in turn tended to aggravate her Crohn’s Disease. Therefore in my opinion, the failure to undertake pre-employment health-checks… caused or contributed to the deterioration of and/or exacerbation of the claimant’s Crohn’s Disease to an extent greater than would have occurred in any event.”

• Question 2: A failure to allow the claimant to leave early one day a week to attend psychotherapy: the claimant has more Crohn’s Disease symptoms when she is under increased stress “It would seem to me likely that [this failure] had a direct causative effect of increasing her stress levels at work, which in turn tended to aggravate her Crohn’s disease … to an extent greater than would have occurred in any event”.

• Question 3: a failure to allow her to work from home when not fit to travel “had a direct causative effect of increasing her stress levels at work, which in turn tended to aggravate her Chron’s disease. Therefore, in my opinion, the failure to allow the claimant flexibility to work from home if she was not fit enough to travel to the office caused or contributed to the deterioration of and/or exacerbation of the claimant’s Crohn’s Disease to an extent greater than would have occurred in any event”

• Question 4: On the failure to allow a phased return to work or to work from home for a period “it would seem likely … that the failure to allow the claimant flexibility to return to work on a phased return or allowing her to work from home for a period “had a direct causative effect of increasing her stress levels at work, which in turn tended to aggravate her Chron’s disease. Therefore, in my opinion, the failure to allow the claimant [this flexibility] caused or contributed to the deterioration of and/or exacerbation of the claimant’s Crohn’s Disease to an extent greater than would have occurred in any event”

• Question 5: Being contacted at home with work related issues when in sick leave had a direct causative effect of increasing her stress levels at work, which in turn tended to aggravate her Chron’s disease. “Therefore, in my opinion, contacting the claimant during sick leave … caused or contributed to the deterioration of and/or exacerbation of the claimant’s Crohn’s Disease to an extent greater than would have occurred in any event.”

• Question 6: Asking the claimant to attend medical treatment outside of the working day “… had a direct causative effect of increasing her stress levels at work, which in turn tended to aggravate her Crohn’s disease. Therefore, in my opinion, requiring / requesting that the claimant attend medical appointments outside working hours … caused or contributed to the deterioration of and/or exacerbation of the claimant’s Crohn’s Disease to an extent greater than would have occurred in any event”

• Question 7: Did the discrimination as found cause or contribute to the deterioration of the claimant’s Crohn’s Disease and/or IBS, or would any deterioration have occurred in any event: “… it is more likely that this treatment caused or contributed to the deterioration … to a greater extent than would have occurred in any event.”

• Question 8: Did the claimant stop medication for Crohn’s disease: “In my opinion Ms Harley did not stop any of the medically advised medication for her Crohn’s disease, at any stage”.

• Question 9: Are there any other reasons which may have caused or contributed to the deterioration of Crohn’s disease or IBS. Or would there have been a deterioration and/or exacerbation at some point in any event: The claimant would have experienced some improvement and deterioration of her symptoms, “however it is the expectation of treatment .. .that these symptomatic fluctuations would be much less or abolished altogether. I have not identified any other factors or reasons for the fluctuations … other than the increased stress that she suffered during the period in question, which in turn tended to aggravate her Crohn’s disease.”

• Question 10: what was the period of any deterioration caused by or materially contributed to by the acts of discrimination, and what is the prognoses for recovery: the deterioration “which may have been caused by or materially contributed to by the conduct of the respondent … in my opinion this deterioration began in July 2019 and has lasted until the present time … it will last until the matters of the Tribunal are fully settled and for a period of 3-6 months after that time.” Thereafter the symptoms “will be the same as they would have been but for the events in question”.

[10]Professor Fahy’s report states he was instructed to consider whether but for the acts of discrimination found, the claimant would not have suffered an exacerbation of her mental health, to be assessed on the balance of probabilities; alternatively whether the discriminatory conduct made a material contribution to the injury. He answered questions having considered some but not all the claimant’s medical records, and an interview with the claimant, as follows:• Question 1: A failure to undertake pre-employment health checks meant there was a failure to consider whether adjustments could be made prior to starting employment. This chance was lost, which “did lead to an exacerbation of her psychiatric disorder that would not otherwise have occurred.”

• Question 2: A failure to allow the claimant to leave work early one day a week to attend psychotherapy when the claimant understood a failure to accept this would entail a long delay for treatment “caused her to experience stress that exacerbated her psychiatric disorder”.

• Question 3: To allow her to work from home when not fit to travel would have alleviated stress and apprehension “her reaction to this lack of this adjustment was to increase her stress and to exacerbate her psychiatric disorder”.

• Question 4: On the failure to allow a phased return to work or to work from home for a period “I conclude that the lack of this adjustment had a clinically significant effect on Ms Harley’s psychiatric condition”. In an answer to a supplemental question, Professor Fahy clarified his statement: this lack of adjustment did not cause a deterioration of her condition “as she was already deteriorated and also because she did not achieve sufficient recovery to make returning to work on a phased basis a relevant or potentially useful adjustment”. (328).

• Question 5: Being contacted at home with work related issues when in sick leave did not have a clinically significant impact on her psychiatric condition; this sensitivity “reflected her deteriorated psychiatric condition rather than being a cause of or significant contributor to these symptoms.”

• Question 6: Asking the claimant to attend medical treatment outside of the working day exacerbated her illness – the same answer as to question 2.

• Question 7: Did the discrimination as found cause or contribute to the deterioration of the claimant’s bi-polar disorder, or would any deterioration have occurred in any event, the answer is the former – that the failure to provide a pre-employment health check, flexibility to work from home on occasions, or accommodate her psychotherapy appointments “contributed to the deterioration and exacerbation of her psychiatric condition.”

• Question 8: Stopping medication in August 2019 would have exacerbated her conditions of depression and anxiety.

• Question 9: There was a probability she would have experienced further clinically significant episodes of bipolar, depression and anxiety in any event. “However, the timing of her relapse in 2018 indicates that the problems she encountered in her new job where the cause of the deterioration of her psychiatric symptoms at that time.”

• Question 10: On how long any exacerbation of her condition caused by the respondent’s conduct may last, the report states that many of the symptoms “also represent a continuation of long-standing vulnerabilities”. His opinion was a there was a “moderate exacerbation” of her conditions because of the respondent’s discriminatory conduct lasting until her new role in February 2021, and a mild exacerbation until conclusion of the Tribunal claim.

[11]The claimant’s case is that her physical and mental health conditions were exacerbated by the discrimination she experienced. She was off work on grounds of ill-health from June 2019, she received SSP from July to December 2019, and nil pay to the date of her resignation in July 2020.

[12]The respondent’s case is that because of the claimant’s underlying health there was always the possibility of a flare-up of her symptoms of Crohn’s, she may well have suffered a relapse in any event.

[13]The claimant was diagnosed with Crohn’s disease in 2003, she accepted in her evidence that it is an unpredictable illness which can flare at different times, as accepted by Dr Glyn “it is highly variable over time and in each patient” (267).

[14]The claimant’s evidence was that this condition has impacted her throughout her life but that she always managed to get it under control. She argued that through the years she had found support and coping mechanisms to deal with the disease. Her case is that her condition was stable until the issues she experienced at work, that “the last couple of years have had a huge impact”.

[15]In 2015-6, as outlined in the liability judgment, the claimant had medical complications and surgery (507). She argued that the issues in 2016 were not as severe as those she suffered in 2022 – an email to her doctor in May 2022 describes the fistula as “destroying my life” (444), in her evidence she described being bedbound at this time and unable to move. Her witness statement describes her condition at this time.

[16]The claimant was asked about Fistulas, she said that they became a medical issue in July 2020, that she had surgery in November 2020, June and August 2021. The respondent argues that the medical experts do not mention these in their reports, and that there is no suggestion that fistulas or the other symptoms were caused by the respondent’s conduct.

[17]The claimant’s evidence is that fistulas are a symptom of Crohn’s Disease, that she had operative-complications and needed further surgery in July 2022, and she had post-operative complications following this surgery. This had an impact on her wellbeing and mental health. As a consequence she continues to have what she described as a “constant reliance” on her family; prior to these flare-ups in 2020 she says she needed help from family much less frequently.

[18]The claimant was asked about other conditions she refers to in her statement – erythema nodosum lumps (447) . The respondent’s position is that these are not referred to in the experts’ reports. The claimant said that this is a condition linked to Crohn’s Disease, an inflammation of fat cells causing painful patches and lumps. Similarly Sweet Syndrome, which the claimant described as smaller lumps on the skin which can blister and ulcerate.

[19]The claimant’s witness evidence on the effect of Crohn’s Disease complications were not challenged. At paragraph 29-31 she describes a relatively normal social life prior to her issues at work, albeit that she was careful to manage her physical condition. Following the deterioration of her condition, her statement describes being in “so much pain … so bad that I can’t walk.” She describes having to walk with a stick post-surgery, having symptoms of arthritis, muscle cramps, and limited movement. After having a stoma having to “defecate into a bag”. The fistulas are “complex and branching” and are “difficult to treat”. Multiple surgeries are required. She describes being humiliated and distressed by some of her symptoms. She often goes to the bathroom over 24 times in a 24- hour period “I have stomach pain, joint pain, nausea and vomiting and I pass blood. The pain medication doesn’t work…”. She describes the medical treatment, for example post-operative care as “painful and humiliating”. She describes the adverse effect of vaginal fistulas on her sex life. She describes not being able to receive hugs from family and friends because of the pain she is in. She describes suicidal feelings and self-harm as a consequence of this condition.

[20]The claimant’s bipolar disorder was diagnosed in 2016, after her surgery that year. She describes her symptoms as longer periods of depression, less periods of mania and that she tends to have “good and bad periods”, the condition does not fluctuate significantly between periods of mania and depression.

[21]The claimant’s witness evidence describes the effect on her of her worsening mental health, including being sent “spiralling” by the simplest of questions, having panic attacks, not being able to relax, being on edge, finding it “too painful, I can’t face it” when talking about her treatment by the respondent. She describes deteriorating so badly that she was diagnosed with agoraphobia and PTSD. She said in her evidence at tribunal that she did not agree with the diagnosis of agoraphobia, while accepting that she had difficulty leaving the house at times; she described this as in part caused by Crohn’s symptoms, for example not being able to leave the house when ready to go out because of the physical symptoms, this caused her additional stress meaning the impact was worsened.

[22]The claimant describes not being able to go out on her own, to the shops or for a walk; “I can’t sleep most nights. I’ve struggled with self-harm, suicidal thoughts and have caused my family and partner great stress when these situations occur. I feel so tired, I feel empty, I feel lost. I don’t see this ever ending”. She describes being in a state of “hypervigilance” because of what happened at the respondent, a form of PTSD. “I have tried everything to alleviate my physical and mental symptoms and deterioration of my health, and nothing is working.”

[23]Professor Fahy refers to the claimant stopping her medication for bi-polar disorder in August 2019. The claimant accepted that this may have had an adverse effect on this condition at this time. In her evidence she described the reasons for this, including that the medication made her feel like a Zombie, and very vulnerable, that she was fearful of not being able to defend herself if attacked. She said she could not cope with the side effects: “I felt very sleepy, and I felt vulnerable … I felt I was not fully there. One of the side effects was I was awake, but I could not move my body, and I was worried about needing to go to bathroom in night and not being able to because of the medication.”

[24]The claimant’s case is that she was prevented from working because of ill-health from July 2019 to July 2020. After she resigned, she applied for roles starting end-July 2020. There are acknowledgements of applications from various companies and the civil service in the bundle from July to October 2020, for roles including Personal Assistant, Project Support Officer, and paralegal.

[25]The claimant was made a provisional offer of employment on 12 August 2020 as a Higher Executive Officer – Administrator in the Home Office. The claimant’s start date was 15 February 2021. Her statement describes the delay between the provisional offer and the formal offer was because of security checks required for this role. This role is a homeworking role, and in her evidence to Tribunal she described flexibility in the role, including starting work early, and taking breaks when needed.

[26]The claimant continued to apply for roles after the provisional offer because she was unsure she would pass the security checks. She described an initial start date in October, but the Home Office put this back to November, December then mid-February. As a result she did not carry on looking for roles after the formal offer had been made, as she had a job offer, a new start date, the security checks had been done, “and I had seen OH and I had been promised adjustments, so I did not continue looking for a role”.

[27]The claimant accepted that her skills were transferrable, she would work in any industry sector, she also said that she needed to get a role within a reasonable commute, near a station to enable her to manage her condition, and this did affect the number of applications she made.

[28]The claimant has been off work on grounds of ill-health in her new role since 14 June 2022, and she claims her loss of salary from this job as part of her financial loss claim. The reason was a flare up of fistulas. She has an agreed return to work date of 1 November 2022.

[29]The claimant argues that the flare up of fistulas was because of the stress of what had happened at UCL and her tribunal claim, her evidence was that “this situation had caused stress and I was upset continuously from June 2019”. She described liking her new role “but I am constantly impacted, scared it will happen again, and I doubt myself and capabilities - even though my colleagues are very happy with my work.”

[30]The claimant also claims a continuing loss of earnings in her new role as her salary is less than her salary with the respondent.

[31]The claimant also claims for the loss of promotion she says she would have gained within 18 months with her new employer but for the continuing health issues caused by the discrimination. The claimant accepted that she had no evidence of the prospect of a promotion.

[32]The claimant accepted that she had no evidence about her gratuitous care claim, no family statements and neither of the experts are asked questions about this requirement.

[33]The claimant claims £20,000 for the cost of private surgery for fistulas. She says that there is a significant waiting list for NHS surgery, that the fistulas are still causing her difficulties, despite the stoma. She argued that this surgery was necessary and was a consequence of the Crohn’s and the stress that she experienced.

[34]The claimant submitted a grievance in September 2019; this was after she had engaged in ACAS early conciliation (8 – 12 August 2019). The claimant described receiving a lawyer’s letter while on sick leave “I got scared and upset and I was not in the right frame of mind; and did not know the process”. She sought advice was told she should put in a grievance.

[35]The claimant was asked why she did not engage with the respondent to discuss reasonable adjustments after the recommendations of the grievance panel. She says that after she went to OH she was “shut down” by the respondent, she also did not trust the respondent at this stage, her manager never approached her, and she did not engage thereafter. Closing submissions The respondent’s arguments

[36]Ms Patterson spoke, and on the 2nd day handed up a written closing argument which we carefully considered.

[37]On the claim for loss of pay during her employment with the respondent, Ms Patterson argued that from September 2019 the claimant “is unwilling or unable to engage”, the absences from September 2019 were not the respondent’s failure, and the claimant is not entitled to compensation for loss of pay for this period.

[38]Ms Patterson argued that Professor Fahey at page 315 shows there is a “probability” that the claimant would have experienced clinically significant episodes of bipolar, depression and anxiety in any event, that the claimant would “likely to have been absent in any event” during this period.

[39]Ms Patterson accepted that Professor Fahey’s further comment, the issues she experienced at work were the cause of her deterioration in 2019 was “persuasive”, but bipolar is a lifelong condition, the tribunal can “take into account” the prospect that she would be off work in any event, “it is highly probable”. This is particularly given she was not taking bipolar medication in 2019. She argued that there was a causative link that the claimant would have had a relapse around September 2019, when the respondent was trying to resolve the situation and the claimant was “unwilling or unable to engage”.

[40]The claimant refers to the effect of the solicitor’s letter sent to her while off sick, Ms Patterson argued that this was a “non-tortious” act, and this is not a discriminatory act which should be compensated for.

[41]On the loss of earnings post-dating resignation, the reason for resignation (page 912 liability bundle) only show one issue relating to disability, the failure to put in place adjustments before starting work, but the other issues are not related to the claim, “this affects losses”.

[42]The claimant was able to look for work from July 2020 and has a high-level experience. She wanted to work from home and from March 2020 she would have been able to work from home because of the Covid pandemic. She got a role within 3 weeks of starting to look, “so it is reasonable to expect her to look for roles from September 2019.” The new role was on a lower salary, so even after she had gained this role it was reasonable for her to explore other options.

[43]There is no evidence that the claimant would be promoted in new role but for discrimination; there is no evidence of such a role or its salary.

[44]Ms Patterson argued that the claimant’s sickness absence from July 2022 in her new role was not relevant to the respondent’s actions, as the claimant had been able to maintain the role for a year before her absence. This illness occurred after the ET judgment in liability, there is no evidence this is linked to issues at the respondent.

[45]Ms Patterson continued her submission on day 2 after she had put in a written submission. She argued that while the medical report does mention fistulas, there is no evidence that there is a causal link with the acts of discrimination, “it’s what injury and harm was caused to the claimant by the respondent, and there needs to be evidence of a causal link”. Dr Glynn’s clarifications at page 326 do not mention fistulas, “he does not say her condition has been exacerbated by fistulas”.

[46]Ms Patterson argued that there is a significant case management issue – that the respondent “was not on notice” the claimant would be arguing the fistulas were part of the claim against it. “If the claimant wanted to advance this argument, it needed to be put to the expert.”

[47]Ms Patterson accepted that page 290 states Dr Glynn has not identified any other facts or reasons for the “fluctuations [the claimant] has suffered, other than the increased stress…”, but argued that “the key question” is that there is no reference to fistulas in the report, instead Dr Glynn refers only to the effects of the worsening symptoms – see 325/6 and his answers to supplementary questions.

[48]Ms Patterson argued that it was not known whether fistulas would have occurred in any event, the claimant has never raised this as attributable to the respondent, it was for her to advance evidence that the fistulas were only because of the respondent’s conduct “this is serious and the case has not been put this way at all”, it is “too big a leap” to argue the fistulas were caused by the respondent.

[49]On the JSB Guidelines, Ms Patterson accepted that the relevant chapter is 4AD, but that the harm falls into the lower bracket - £500 - £1,500.

[50]On the exacerbation of Crohn’s disease, Ms Patterson accepted that the relevant JSB chapter is ‘injury to digestive system - non traumatic’. She argued that after apportionment to account for injury not caused by the respondent, an award is within Band (3) - £3950 - £9540.

[51]Ms Patterson argued an award for pain, suffering and loss of amenity at £5,000.

[52]Ms Patterson argued there should be a discount to her award, because the claimant did not put in a grievance until very late in the process. The claimant would have been aware of how to do so as her employment contract refers to the grievance process.

[53]Ms Patterson argued that there was no evidence of PTSD as a condition, and no award should be made for this. Ms Patterson also cautioned against double recovery for an award for personal injury and injury to feelings.

[54]Ms Patterson reiterated that the reason why it is “essential” for a specific question on fistulas to be put to Dr Glynn is that there is no definitive medical evidence to Chron’s Disease, and no evidence that a general exacerbation of Crohn’s Disease caused the fistulas. “This is the reason for the request for a postponement, further evidence could have been introduced, but we were not on notice of this very significant point.” The claimant also argues that the fistulas impacted her mental health, see page 444 that the fistulas were destroying her life, the consequent impact on her bipolar disorder. There is no sound evidence which supports this causation link, there is no link in the medical report between Crohn’s Disease and fistulas. The claimant’s arguments

[55]Mr Piddington argued evidence including documents, expert opinion and the claimant’s evidence all establishes the claim. The claimant provided clear and compelling, honest and reliable evidence and it would be wrong to discount it.

[56]The legal position: to put the claimant in the position she would have been in but for discrimination. The eggshell skull principle – the respondent must take the claimant as they find her; even if the claimant was impacted because of a preexisting vulnerability this is irrelevant to remedy, it’s the actual impact on the claimant.

[57]To establish injury, the causation test: Mr Piddington referred to BAE Systems and “two distinguishing propositions”:• firstly where harm has more than one cause – the respondent should only pay for the harm attributable to it – it is for the respondent to raise this issue

• secondly, the assessment will take into account the pre-existing disorder and the chances the claimant would have suffered the injury in any event

[58]This leads to two questions: what harm the claimant has established, and who is responsible for that harm; and would the claimant have suffered this harm in any event at some point in the future. The burden is on the respondent to produce a positive case that the claimant would have suffered the same harm absent discrimination.

[59]Medical evidence on causation shows two distinct injuries(i) Crohn’s Disease exacerbation and/or deterioration

(ii) mental health exacerbation/deterioration.

[60]The medical evidence shows that Professor Fahy considered all the evidence and concludes that all the claimant’s deterioration is caused by the discrimination. He was explicitly invited to consider whether there was any other factor which could have contributed to the exacerbation, and he concludes not. The same for prognosis, that the discrimination will continue for up to six months after the ET proceedings have ended. The harm is “indivisible harm” there is no evidence of any additional cause of the exacerbation.

[61]Mr Piddington disagreed with the respondent’s contention that a specific question to Dr Glynn on fistulas was required. The Tribunal simply must ask whether it can be satisfied that the harm experienced by the claimant was caused by the discrimination. Fistulas are referenced in the medical evidence to the expert, the respondent asked a question about what else could have impacted the condition, he did not say that the fistulas are not linked to Crohn’s; in fact he said that all symptoms were worse.

[62]There is evidence that Crohn’s are linked to fistulas – see page 280 – Dr Glynn clearly links fistulas and Crohn’s and uncontrolled inflammation caused by stress. See also page 290 – there is no other factor which gave rise to the fluctuations in the illness the claimant has suffered other than the increased stress she suffered at work. Dr Glynn says that there is an “expectation” that with treatment these symptoms would be much less or abolished. This says that the fluctuations, including fistulas, were caused solely because of the discriminatory acts. “Dr Glynn is emphatic, there is no competing act”.

[63]On the claim for Psychiatric injury – there is evidence of agoraphobia and PTSD – see page 441 the 22 January Sloane Clinic letter: a diagnosis of agoraphobia. Even though this was not in front of the expert, Hampshire CC v Wyatt states that the tribunal is entitled to make findings on personal injury even in the absence of a report. The fact that here is a report, the claimant has established causation as she has a diagnosis which shows this is caused by the respondent’s conduct. It is for the respondent to dispute this causal link.

[64]On the short notice of this and the claim for PSLA for fistulas, “the arguments of prejudice are misconceived, as the experts and the respondent had all this evidence”. There is no prejudice to the respondent, it is for the claimant to prove her case, and the respondent is entitled to say that she has failed to do so. If the respondent is to assert an intervening act, they need to advance this evidence.

[65]Professor Fahy is saying that this period of mental health deterioration was caused by the discriminatory acts. If the respondent wants to say the claimant would have been in similar mental health in any event, this is for the respondent to show.

[66]The report says that harm may have occurred in any event, it is for the respondent to establish on the balance of probabilities that the claimant would have suffered a similar level of harm at some point, and the percentage likelihood that this would have happened. Unless the respondent can demonstrate both, the Tribunal must treat this argument with caution.

[67]If the harm is not divisible, the Tribunal can’t identify a rational basis that the claimant may have suffered the same harm in any event and there should not be any reduction in the compensation. If the tribunal finds there would have been some symptoms, the Tribunal needs to consider what these symptoms would be and what effect this would have on the claims.

[68]Mr Piddington argued that the expert has already factored in the impact of the claimant’s underlying vulnerability, page 316 - the reductions of levels of harm from moderate to mild and ending after this case - takes account the fact of longterm vulnerabilities.

[69]There is no basis to say that the claimant’s symptoms were worsened by some other cause. There is not even a probability, the respondent cannot say that the claimant would have been in this position absent discrimination.

[70]If the claimant stopping bipolar medication is an issue, it’s an issue of mitigation, not causation: if she had taken medication would her symptoms have been different? To make this finding the Tribunal would have to conclude that it was unreasonable for the claimant to stop taking her medication. The claimant’s evidence is that in the months prior to the discrimination she had not been taking medication because she had not needed it. In this circumstance the respondent must take the claimant as they find her - the eggshell skull principle applies (see Kemp & Kemp declining treatment is an issue of mitigation). A failure to take medication is a pre-existing vulnerability of that individual. The Tribunal must consider if this was unreasonable, at the point when symptoms got worse, and it must consider if so is there evidence that taking medication would have lessened the impact.

[71]The medical reports does not suggest that stopping medication was an intervening act; there is no evidence this is the case. There is no evidence that the claimant was suffering significant medical symptoms prior to acts of discrimination. And but for discrimination, the claimant would have had adjustments in place and would not have had a letter written to her by lawyers. There is no evidence that absent the acts of discrimination, the claimant would be in the same condition in any event. The medical evidence shows that all the claimant’s absence from work was as a result of discrimination.

[72]Mitigation. The claimant acted reasonably – she had to deal with medical conditions while seeking a role; she continued to apply after a provisional offer of employment; the Home Office then changed her start date.

[73]Her resignation letter – it’s clear that all her complaints were related to discrimination and her attempts to address this – “no discrimination, no resignation”.

[74]Pain suffering and loss and amenity: “It’s a rare case to find such an adverse effect which impacted every area of her life”. Mr Piddington argued that the claim for deterioration in her mental health falls within the Judicial Studies Guidelines – ‘moderately severe’ bracket - £19,000 to £45,000. Within this bracket the claimant suffered moderate harm from July 2019 and minor harm from February 2021. He argued that an award of £20,000 was appropriate.

[75]Injury of feelings: Mt Piddington made it clear that the award for injury to feelings and any award for psychiatric harm cannot overlap, there cannot be double compensation for the same injury. Mr Piddington argued that an additional award discrete of an award for psychiatric injury, Mr Piddington argued that a £10,000 award would be reasonable.

[76]Physical harm: Mr Piddington referred to the Judicial Studies Board Guidelines, arguing that this was an equivalent injury to a severe abdominal injury often necessitating a total colostomy, incontinence, IBS, severe impact on enjoyment, a bracket of £44 - £70,000. Mr Piddington argued that it was clear that prior to discrimination her condition was well managed, that all the symptoms since including fistulas were a consequence of discrimination, an award of £50,000 was appropriate for this injury.

[77]Gratuitous care: Mr Piddington said that the claimant made a claim for personal injury over 12 months ago, the medical reports show an impact, that the claimant had to live with her parents and received care. The claimant received approximately 15 hours per week of care, she is claiming only 5 hours per week. Mr Piddington accepted that this loss appeared for the first time in a schedule of loss on 12 October 2022.

[78]Therapy: there is evidence that this is needed. The receipts were disclosed on disclosure for remedy, so the respondent was on notice of this claim even if it is not mentioned in the Schedule of Loss.

[79]VAAFT: This is an operation that the claimant requires and there is a long waiting lost on the NHS. As long as the Tribunal is satisfied that this operation is required as a result of discrimination, it is open for ET to provide treatment costs. There is evidence of amount of surgery required. Mr Piddington accepted that the respondent was put on notice of this claim on 12 October 2022.

[80]Deduction from award: the respondent argues that the claimant has failed to comply with the ACAS Code on grievance processes. But the claimant did lodge a grievance and an appeal against the grievance decision, so does not follow that there was a failure to follow Code. Even if there was, there is no basis to show that the claimant acted ‘culpably’; and it is not just and equitable to reduce the award. The respondent “robustly asserted” that the claimant did not have a disability; disability was only conceded at the Tribunal hearing, and the respondent accepted they should have been aware. It is not just and equitable to reduce the award.

[81]On the alleged prejudice to the respondent: there is none – it is for the claimant to establish on the evidence her claim, the same for the respondent. There is no prejudice; the respondent knew that there was a claim for personal injury. Response to claimant’s submission

[82]Causation: the claimant’s arguments are “unsafe and problematic”. This is not a low value claim, and it is unreasonable to put the Tribunal in a position where it has to “guess or make links” on the evidence. It is not for the respondent to put these points to the expert.

[83]Ms Patterson accepted that there is “some evidence” about fistulas, this does not show any causative link between the respondent’s actions and the claimant’s symptoms. No question was put to the expert on this point. The expert says that they ‘may occur’; there is no reference to the cause of the claimant’s fistulas, or their effect. All the report says is that they may occur. At best this is a conditional view. “It is not safe for the Tribunal to put its own gloss and substitute this view” for its own.

[84]Agoraphobia and PTSD: the respondent only found out about these conditions on 12 October, they were not disclosed to the expert; it is a “stretch” for these claims to be brought. Case law

[85]We considered the cases provided by the parties. We also had regard to the following general principles:a. Ministry of Defence v Cannock

[1994] IRLR 509

, EAT: Where compensation is awarded, it is on the basis that 'as best as money can do it, the claimant must be put into the position she would have been in but for the unlawful conduct of [her employer]'. …. 'Tribunals [should] … not simply make calculations under different heads, and then add them up. A sense of due proportion and look at the individual components of any award and then looking at the total to make sure that the total award seems a sensible and just reflection of the chances which have been assessed.'

b. Olayemi v Athena Medical Centre

[2016] ICR 1074

, EAT: The 'eggshell skull' principle of the law of tort also applies in cases of unlawful discrimination: a discriminator must take their victim as they are. That means that the wrong doer takes the risk that the wronged may be very much affected by an act of sexual harassment, say, by reason of their own character and psychological temperament. Provided the losses claimed can be shown to be causally linked with the unlawful act, the respondent must meet them, even if the claimant is predisposed to the disorder. If the employer’s acts were a material cause of the claimant’s psychiatric condition, it was no defence for the respondent to show that she would not have suffered as she did but for a vulnerability to that condition. The Tribunal can discount the compensation to take account of the risk that she might have suffered from the condition in any event. If there is a material cause, which goes beyond mere vulnerability, and the resultant harm was truly divisible, the tribunal should estimate the degree of the respondent’s responsibility and make an award for that.

c. Ministry of Defence v Hunt

[1996] ICR 554

: It is for the respondent to adduce evidence to demonstrate that the loss could have been mitigated. The employer must provide the evidence to support the argument that the complainant could have mitigated their loss; vague assertions of a failure to mitigate, unsupported by any evidence is unlikely to succeed. If there is such evidence then the question for the employment tribunal is not simply whether the complainant acted reasonably but whether by taking the course they did, they took all reasonable steps to mitigate their losses.

d. BAE Systems (Operations) Ltd v Konczak

[2017] EWCA Civ 1188

. The case confirmed the following propositions:

(1) Where the harm has more than one cause, a respondent should only pay for the proportion attributable to their wrongdoing unless the harm is truly indivisible.

(2) The burden is on the employer to raise the issue of apportionment. Tribunals 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.’ The Tribunal should see if it ‘can identify, however broadly, a particular part of the suffering which is due to the wrong’.

(3) Where such a ‘rational basis’ can be found, the Tribunal should apportion accordingly, even if the basis for doing so is ‘rough and ready’.

(4) Any such assessment must consider any pre-existing disorder or vulnerability, and account for the chance that the claimant would have succumbed to the harm in any event, either at that point or in the future.

(5) In cases of psychiatric injury, careful evidence should be obtained from experts, particularly in relation to the likelihood of suffering the harm in any event.

e. Sadler v Filipiak

[2011] EWCA Civ 1728

: The tribunal must consider totality of the pain, suffering and loss of amenity experienced.

f. De Souza v Vinci Construction UK Ltd

[2017] EWCA Civ 879

: The Simmons v Castle 10% uplift should apply to employment tribunal awards in respect of non-pecuniary losses.

g. Essa v Laing Ltd

[2004] EWCA Civ 02

: There is no need to show that the personal injury in respect of which the claim is made was reasonably foreseeable, provided a direct causal link between the act of discrimination and the loss can be made out.

h. Scott v Comrs of Inland Revenue

[2004] IRLR 713

: When looking at nonpecuniary loss, whilst the total sum awarded must be borne in mind, it remains important not to conflate different types of awards for the purposes of the Vento guidelines.

i. ‘Vento’ Presidential Guidance for awards after 6 April 2022:

• a lower band of £990 to £9,900, for less serious cases, such as where the act of discrimination is an isolated or one-off occurrence;

• a middle band of £9,900 to £29,600, for cases that do not merit an award in the upper band; and

• an upper band of £29,600 to £49,300, for the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race;

• the most exceptional cases might be capable of exceeding £49,300.

j. Alexander v Home Office

[1988] IRLR 190

: ''Awards should not be minimal, because this would tend to trivialise or diminish respect for the public policy to which the Act gives effect. On the other hand, just because it is impossible to assess the monetary value of injured feelings, awards should be restrained. To award sums which are generally felt to be excessive does almost as much harm to the policy and the results which it seeks to achieve as do nominal awards. Further, injury to feelings, which is likely to be of a relatively short duration, is less serious than physical injury to the body or mind which may persist for months, in many cases for life.''

[86]We also considered the cases provided by the parties, including awards made in what the parties say are analogous cases.

[87]Judicial College Guidance – physical injury The claimant relies on the following: (1) Chapter 6: Injuries to Internal Organs (G) Digestive System (b) Illness/Damage Resulting from Non-traumatic Injury. (e.g. food poisoning): (i) Severe toxicosis causing serious acute pain, vomiting, diarrhoea and fever, requiring hospital admission for some days or weeks and some continuing incontinence, haemorrhoids, and irritable bowel syndrome, having a significant impact on ability to work and enjoyment of life. £38,430 to £52,500 (ii) Serious but short-lived food poisoning, diarrhoea, and vomiting diminishing over two to four weeks with some remaining discomfort and disturbance of bowel function and impact on sex life and enjoyment of food over a few years. Any such symptoms having these consequences and lasting for longer, even indefinitely, are likely to merit an award between the top of this bracket and the bottom of the bracket in (i) above. £9,540 to £19,200 (iii) Food poisoning causing significant discomfort, stomach cramps, alteration of bowel function and fatigue. Hospital admission for some days with symptoms lasting for a few weeks but complete recovery within a year or two. £3,950 to £9,540 (iv) Varying degrees of disabling pain, cramps, and diarrhoea continuing for some days or weeks. £910 to £3,950 (I) Bowels (a) Cases involving double incontinence namely total loss of natural bowel function and complete loss of urinary function and control, together with other medical complications. Up to £184,200 (b) Total loss of natural function and dependence on colostomy, depending on age. Up to £150,110 (c) Faecal urgency and passive incontinence persisting after surgery and causing embarrassment and distress, typically following injury giving birth. In the region of £79,920 (d) Severe abdominal injury causing impairment of function and often necessitating temporary colostomy (leaving disfiguring scars) and/or restriction on employment and on diet. £44,590 to £69,730 (e) Penetrating injuries causing some permanent damage but with an eventual return to natural function and control. £12,590 to £24,480

[88]Judicial College Guidance – psychiatric and psychological damage(a) (A) Psychiatric Damage Generally The factors to be considered in valuing claims of this nature are as follows: (i) the injured person's ability to cope with life, education and work; (ii) the effect on the injured person's relationships with family, friends and those with whom he or she comes into contact; (iii) the extent to which treatment would be successful; (iv) future vulnerability; (v) prognosis; (vi) whether medical help has been sought. (a) Severe - In these cases the injured person will have marked problems with respect to factors (i) to (iv) above and the prognosis will be very poor. £54,830 to £115,730

(b) Moderately Severe - In these cases there will be significant problems associated with factors (i) to (iv) above, but the prognosis will be much more optimistic than in (a) above. While there are awards which support both extremes of this bracket, the majority are somewhere near the middle of the bracket. … Cases of work-related stress resulting in a permanent or longstanding disability preventing a return to comparable employment would appear to come within this category. £19,070 to £54,830

(c) Moderate - While there may have been the sort of problems associated with factors (i) to (iv) above there will have been marked improvement by trial and the prognosis will be good. £5,860 to £19,070

(d) Less Severe - The level of the award will take into consideration the length of the period of disability and the extent to which daily activities and sleep were affected. Cases falling short of a specific phobia or disorder such as travel anxiety when associated with minor physical symptoms may be found in the Minor Injuries chapter. £1.540 - £5,860 89. s.401 Income Tax (Earnings and Pensions) Act 2003: (1) This Chapter applies to payments and other benefits which are received directly or indirectly in consideration or in consequence of, or otherwise in connection with (a) the termination of a person’s employment Conclusions on the evidence and law

[90]We accepted that the medical evidence shows fistulas are a symptom of the claimant’s Crohn’s Disease, this is apparent from the medical records which show the claimant had fistulas in 2015. Dr Glynn’s report states that Crohn’s can lead to “specific perianal problems such as fistula and abscess…” (280). Dr Glynn refers to the claimant’s symptoms from 2019 onwards including fistulas, and her surgery in 2021, that she was hospitalised in November 2020 and required surgery. The timeline shows he considered all relevant medical evidence in his assessment when he prepared his medical report in June 2022.

[91]We are not persuaded by the respondent’s argument that fistulas should be considered a separate condition. The respondent was on notice from medical disclosure prior to the liability hearing that the claimant suffered from fistulas. The medical records show that the claimant’s fistulas were a symptom of Crohn’s Disease. Dr Glynn’s report is quite specific about the fact the fistulas the claimant suffered from (and continued to do so) were a symptom of Crohn’s Disease. It follows that the claimant’s symptoms, medical treatment and prognosis should not be an issue of surprise to the respondent.

[92]Dr Glynn concluded that all the claimant’s Crohn’s related ill-health from July 2019 onwards was attributable to the stress brought on by acts of discrimination. This included all the deterioration in her health associated with Crohn’s disease from 2019 onwards, including fistulas the claimant suffered from 2020 onwards. His medical report is clear that all fluctuations of her Crohn’s disease and associated symptoms were caused by the discrimination she suffered at work. He expected her condition to remain relatively stable but for the acts of discrimination.

[93]The respondent argues that as the claimant was not taking her medication for bipolar, it is highly likely that in any event she would have had a deterioration of this condition in 2019. On the evidence we concluded that a significant reason why the claimant was not taking her bipolar medication was because her Crohn’s symptoms were so bad she felt she could not take it. This was, we concluded, a reasonable decision to take, she did not feel able to take this medication, and it was a decision she took in the unfortunate knowledge that she would suffer worse mental health as a result.

[94]The claimant was in an invidious situation. We do not consider her conduct to break the chain of causation of harm even though it may have led to worse symptoms of bipolar and depression. To restate the legal maxim – the respondent is liable for the harm which flows from its discriminatory actions. We concluded that the claimant should not be penalised for the invidious choice she felt forced to make. She is entitled to be awarded a sum to reflect the damage to her mental health, with no discount for her decision not to take medication.

[95]Professor Fahy’s report states that the relapse in the claimant’s mental health in 2019 was caused by the discrimination she suffered at work. He was asked whether there is any other cause of the deterioration in her health other than the discrimination she experienced, and he says no. He does not say that the symptoms she experienced were caused by her stopping her medication, he says that her symptoms were likely worse as a consequence.

[96]We therefore did not accept that there was any other cause of her mental health deterioration. The claimant is vulnerable, she has a debilitating physical condition, but there was no other trigger for the deterioration other than the respondent’s actions.

[97]The respondent argues that the claimant’s PTSD and agoraphobia are new conditions, there has been no evidence on them apart from her witness statement and these are new financial claims which it has not had an opportunity to challenge. Given the claimant’s evidence, we concluded that these symptoms are manifestations of her Crohn’s Disease, bipolar and depression. The claimant felt less able to go out, and experienced significant difficulties when she did; her physical symptoms made going out difficult. We concluded that these symptoms are a result of her treatment.

[98]We also accepted that the claimant suffered symptoms such as flashbacks and panic attacks as a direct result of the treatment she experienced while employed by the respondent, her statement paints a vivid picture of the effect on her mental health at work and during the proceedings.

[99]We accept that Professor Fahy considers the claimant will experience clinically significant episodes of bipolar, depression and anxiety in the future. But this clinically significant episode of bipolar, depression and anxiety was caused by the respondent, and it is liable for this harm.

[100]Professor Fahy concluded that the discrimination experienced by the claimant from mid-2019 caused the exacerbation of her psychiatric disorder. He says discrimination caused a moderate exacerbation of her mental health symptoms of bipolar disorder, depression, and anxiety from mid 2019 to the Tribunal hearing, and mild symptoms to approximately April 2023. Claim for loss of past earnings

[101]We concluded based on the medical reports that the discriminatory acts and omissions of the respondent were the reason why the claimant was off work from June 2019 to her date of resignation in July 2020. The failure to take medication for bipolar disorder during this period did not affect this period of loss – we concluded that even if she had taken this medication the severity of her symptoms of Crohn’s disease meant she would have been off work for this period in any event.

[102]We therefore concluded that the claimant should receive an award for her loss of net earnings for this period June 2019 to 21 July 2020: this sum was agreed between the parties - £28,146.55.

[103]We did not accept that there was a failure to engage by the claimant from September 2019 such that compensation should be reduced. The claimant went to a solicitor and was advised to put in a grievance, she received a solicitor’s letter from the respondent denying disability. There was no proper engagement from the respondent to the claimant about her health or the issues she had experienced at work, no attempt to offer her an OH appointment, no direct engagement with her about reasonable adjustments which may enable her to return to work. We consider that the claimant was not acting unreasonably in determining by late 2019 she had lost enough faith in the respondent to believe proactive engagement from her would make any positive change.

[104]We did not accept the respondent’s contention that the claimant had failed to mitigate her losses. She started looking for work when her health allowed her to do so, and we do not accept that she was able to do so before July 2020 because of her ill-health. She quickly obtained a role, and we considered the claimant acted reasonably in continuing to look for work while the offer was still conditional, and in then stopping looking for work when she was told the offer was unconditional. The start-date of this role was pushed back, the claimant cannot have known this in advance. We concluded that the claimant acted reasonably in her search for work and in attempting to mitigate her losses.

[105]We agreed that the claimant should be compensated for her loss of earnings while out of work from 22 July 2020 to 15 February 2021: the sum agreed by the parties - £16,568.86. Claim for losses while employed in new role

[106]The claimant claims losses from the start of her new role to August 2023. This comprises(i) the difference in salary between her old and new role, a total of £4,680.07

(ii) for loss of salary due to time off work for ill-health from 14 June 2022 to 12 October 2022, a total of £766.93.

[107]We accept that such an award can be made in principle, the difference between old and new salary, if the claimant has reasonably mitigated her loss. We accept that she mitigated her loss. We accept also that it is reasonable for her to receive compensation for a period until she has, or should have reasonably, regained her prior salary (including cost of living increases). While it is difficult to forecast when this loss will end, we consider August 2023 to be appropriate, that the claimant will of should have made up her salary loss by this date.

[108]We accept the principle that the claimant is entitled to claim her losses which flow from acts of discrimination. Dr Glynn is clear that the symptoms the claimant experienced to the date of his consultation with her were attributable to the acts of discrimination, that it is more likely than not that she would not have had significant health problems absent these acts. We did not accept that there was any break in the chain of causation in relation to her sickness absence in her new role. This ill-health was as a direct consequence of the respondent’s actions, but for the acts of the respondent she would not have had the severe complications and operations and time off work in her new role.

[109]We therefore concluded that the claimant should be compensated for loss of salary in her new role, both the difference in salary, and the losses attributable to her sick leave to October 2022, because these losses flow from the acts of discrimination. The sum awarded for loss of earnings since starting her new role, plus anticipated future losses is agreed by the parties - £4,312.72 Gratuitous care and therapy

[110]Gratuitous care was not a claim until it appeared in the claimant’s schedule of loss sent to the respondent on 12 October 2022. The need for this care is referred to in Dr Glynn’s report (279) and in the claimant’s witness statement. We accept that the claimant needed this assistance.

[111]But we received no reason why it was claimed so late. Also, there was no indication prior to the Schedule that this was a potential financial claim. Just because it is in the report does not mean the respondent was on notice of this claim. This claim should have been apparent and claimed earlier.

[112]The respondent has had no chance to challenge the rationale for this claim or the sums claimed, we did not consider it was reasonable for the claimant to submit a claim so late when there is no good reason why it could not have been made earlier. The claim for gratuitous care fails.

[113]Similarly with the claim for therapy at a cost of £300 a session. We accept that Professor Fahy refers to private psychotherapy. We accept also that potentially the claimant’s need for psychotherapy may be attributable to the acts of the respondent. But it was not submitted as a claim until 12 October 2022 with not reason why. Again, the respondent has had no chance to challenge this as a separate claim, as it is entitled to do. The claim for therapy fails. VAAFT Operations

[114]The claimant seeks private medical treatment. Because of the significant delay for NHS treatment she will likely have adverse symptoms for a longer period, and these procedures sooner will assist her recovery.

[115]The respondent makes the same point as for gratuitous care – this issue was raised late, and the respondent has not had time to comment on this issue. But, unlike the claim for gratuitous care, the ongoing delay in getting NHS treatment and the effect this would have on the claimant would not have been so clear to the claimant significantly earlier – we note for example paragraph 25 of her statement in which she says that she was told on 5 October 2022 that further surgery would be required.

[116]Dr Fahy is clear that this treatment is required. Given the causation findings, we concluded that the operations is required because of the acts of the respondent which caused the deterioration of the claimant’s symptoms.

[117]This treatment is needed, and to delay the treatment will prolong claimant’s illhealth. We considered, notwithstanding the late notice of this claim that the need for this treatment is included in Dr Fahy’s report. In principle, private medical treatment can be claimed, if reasonable to do so.

[118]On very careful consideration, we decided not to award a sum for this operation. The reason is not because of late notice to the respondent, because the respondent is on notice this treatment is required as a consequence of its acts.

[119]We concluded instead that the sum we are awarding for pain suffering and loss and amenity is an award which encompasses all harm past and anticipated the claimant has and will experience. We did not feel it just and equitable to make a further award for the cost of this operation, as this will, we consider, amount to an element of double-recovery.

[120]To put it another way a sum to reflect the cost of a private operation may have been awarded had we decided to make a smaller award for PSLA. But we considered this award overall takes into account the need for this treatment and the pain and complications which will occur until the operation, whenever it takes place and however it is funded. Pain, Suffering and Loss of Amenity Physical injury

[121]All the consequences of the deterioration of the claimant’s Crohn’s Disease are attributable to the respondent, including her ongoing symptoms and need for a further operation. We accept in full the claimant’s witness evidence of the incapacity she has suffered and the impact it has had on her life as set out above.

[122]We carefully considered the Judicial College Guidelines on the quantum awards of the injuries suffered by the claimant. We concluded that the deterioration of Crohn’s Disease and the associated complications and her prognosis, which is improving symptoms in the foreseeable future.

[123]We considered that the physical complications, including fistulas, were severe: the claimant has suffered continuing acute pain and needed several surgeries and particularly painful and distressing after-care. She has severe ongoing issues associated with her surgery and will require several further procedures. This has had a significant impact on her ability to enjoy life. It has had an effect on her employment, she has had several months off work. We concluded her symptoms were similar those of a severe abdominal injury (£44,590 to £69,730).

[124]We considered that the symptoms and issues experienced by the claimant, whose evidence we accepted in full, merited an award at the top end of this bracket. We bore in mind the need to consider the totality of the award, including the award of suns for psychiatric injury and injury to feelings. Bearing this in mind we concluded that an award of £50,000 should be made. To be clear, this encompasses a De Souza uplift of 10% - the award is therefore £45,500 plus a 10% uplift to £50,000. Mental health injury

[125]We concluded that the claimant’s mental health symptoms were such that an award in at the top end of the moderately severe bracket would be appropriate. We concluded that the symptoms are serious and have lasted several years. The claimant describes a significant and continuing mental health deterioration, one which has now lasted several years. We concluded that this was longstanding disability. Professor Fahy descries the exacerbation of her mental health of moderate severity for several years and mild thereafter.

[126]All symptoms are attributable to acts of discrimination. We do not consider that PTSD and agoraphobia are discrete conditions; we accepted that these symptoms all flow from the claimant’s mental health vulnerabilities. They are all attributable to the acts of the respondent.

[127]We concluded that an award at the bottom end of the moderately severe bracket would be appropriate. Had this been the only injury the award would have been over £25,000. But, in determining an award of £20,000, including the De Souza uplift, we took into account the overall totality of the PSLA award. Injury to feelings

[128]We noted the guidance in Alexander, also the need to ensure that there is not double recovery, particularly given an award of £20,000 has been made for a personal injury.

[129]Given the injury suffered, we concluded that an award at the upper end of the middle Vento bracket would be appropriate. The claimant has suffered a very significant injury to feelings with long-term mental health effects. While the discrimination was not deliberate, it was beyond the one-off or less serious acts envisaged in Vento; we accepted also that it is not an injury of the most serious type meriting an upper hand award.

[130]If there was no personal injury claim, we concluded that the award would be £25,000. We discounted this to £10,000, to reflect the overall harm to the claimant’s mental health; we felt that an overall award of £30,000 for the injury to the claimant’s mental health (injury to feelings and PSLA) fairly reflected the level of harm to her. Discount

[131]We did not accept that it was appropriate to reduce the level of the award. We did not accept that there was a failure of the claimant to engage with internal processes – in fact she submitted a grievance. Interest

[132]The parties accepted interest was payable on the sums. The dispute was the level of interest, the respondent contends 2%, a sum awarded in the county court, the claimant contends that the rate of interest is set at 8%.

[133]We concluded that interest is invariably awarded at the rate of 8% and the parties undertook the calculations and agreed the following figures :• Loss of earnings – interest from mid-point on past earnings (no interest on future earnings): Pre-termination £3,908.13 Post-termination £2,612.76

• Injury to feelings: interest for the period to this hearing - £2,776.99

• PSLA: including interest from midpoint - £9,719.45 Grossing up

[134]Following the hearing Mr Piddington wrote to the Tribunal and parties saying that there is an error in the grossing-up calculation undertaken during the hearing. It had been agreed at the hearing that the whole of the loss of earnings following dismissal may fall within the s.401 IT(E&P) Act 2003 tax exemption, that only pre-termination losses should be taxed up. The parties agree that at the hearing a wrong figure was used to gross-up the award.

[135]The respondent accepts a wrong calculation was undertaken but contends that the whole of the loss of earnings, pre-and post-dismissal potentially fall within the s.401 IT(E&P)A as they are losses which are paid ‘otherwise in connection’ with loss of employment. We did not consider that this was a payment ‘in connection’ with the claimant’s loss of employment – we concluded that what is required is a causal link between the fact of dismissal and financial losses thereafter. While. While the claim for pre-termination losses is made following dismissal, it is not a payment made in connection to or because of dismissal; it is a claim for pretermination losses. We accepted the claimant’s revised calculation as correct

[136]Because the claimant is working, she has used up her tax personal allowances in this tax year. The parties now agree that the sum to be grossed up is the postdismissal earnings plus interest - £32,054.68. Available income at 29% tax rate: £28,552.93 / 0.8. = £35,691.17 Balance at 40% rate: £3,501.75 / 0/6 = £5,836.25 Total post-loss of earnings £41,527.42 TOTAL AWARD 4. Total award for loss of earnings £65,021.76 5. Pain suffering and loss of amenity £79,702.00 6. Injury to feelings: £12,777.00 £157,500.76.