Ms S Kandola v Department for Work and Pensions: 2204587/2022 and 2219702/2024

EMPLOYMENT TRIBUNALS

Case No 2204587/2022, 2219702/2024, 2205116/2018

Between

Ms S KandolaClaimant

Department for Work and PensionsRespondent

Before

Employment Judge Henderson

In person for claimant

Mr J Chegwidden (instructed by Counsel) for respondent

Date 22 December 2024

JUDGMENT

[1]The claimant is a disabled person within the meaning of section 6 of the Equality Act 2010 (EqA).

[2]The claimant is not prevented from bringing her current claim because of duplication of facts/issues with her previous claim brought in 2018 (2205116/2018).

[3]For the purpose of clarification: that claim, 2205116/2018, was dismissed upon withdrawal in March 2019.

[4]The claimant’s claims brought before 2022 (and as set out in the reasons below) are outside the relevant time limit (section 123 EqA). The Tribunal does not exercise its discretion to extend the time limit on just and equitable grounds.

[5]The amendments set out at paragraph [ ] of the Reasons are allowed

[6]The claimant is not bringing any claim for indirect discrimination under section 19 EqA. 1 of 9

REASONS

[1]The matters considered at the Preliminary Hearing (PH) on 19 & 20 September were ordered to be heard by a Case Management Order (CMO) of 6 March 2023 made by EJ Stewart.

[2]There were 3 issues: - Whether the claimant was a disabled person within the meaning of s6 EqA? This did not need to be considered as the respondent had conceded on 19 June 2023 that the claimant was a disabled person with the following conditions: o Anxiety from October 2016 o Adjustment Disorder from August 2019 o Recurrent Repressive Disorder from February 2020. - Whether the claimant was prevented from bringing her current claim because of duplication of facts/issues with her previous claim brought in 2018?

[3]From the evidence presented and also based on EJ Stewart’s comments in CMO of March 2023, it is confirmed that the 2018 claim has been dismissed upon the claimant’s withdrawal of her claims on 13 March 2019. It is noted that the 2018 claim file was destroyed in February 2020.

[4]Having spent considerable time going through the substance of the claims as pleaded in the current claim, the claimant confirmed that none of the matters she raised had occurred prior to 25 June 2018, which was the date on which she lodged the 2018 claim.

[5]Therefore, there is no duplication or overlap between the current claim and the 2018 claim.

[6]The claimant also confirmed that she is not bringing an Indirect Discrimination claim under section 19 EqA.

[7]The third issue was whether the claimant’s claims or any of them should be struck out as being out of time. If out of time, is there conduct extending over a period of time and the final act falls within time? Alternatively, whether it is just and equitable to extend time (s,123 EqA)? This was the main issue for consideration at the PH. 2 of 9 Conduct of the Hearing

[8]I discussed with the claimant at start of hearing what reasonable adjustments she would need. These were regular breaks and time to consider documents and to give answers in cross examination these adjustments were adhered to. Further, I regularly stopped the proceedings to explain to the claimant various processes and to put matters raised in context.

[9]The claimant presented a 17-page witness statement (which she said had been prepared with some legal assistance) which she also asked to stand as the Further and Betters Particulars of her claim, The claimant accepted that her claim had not been clearly pleaded in the ET1 and Particulars of claim as she had prepared it herself with some help from her husband.

[10]As the respondent had conceded the claimant’s disability status, her impact statement was not formally heard in evidence.

[11]I heard evidence from the claimant. Her cross examination by the respondent’s counsel lasted for just under 2 hours with regular breaks and with time allowed for the claimant to consider her answers. I also heard oral and written submissions from the respondent and oral submissions from the claimant. The Claimant’s Evidence

[12]The claimant frequently gave inconsistent answers and was confused and unclear about dates. I understand that this may well be linked to her medical conditions, and I attempted, where she had given inconsistent answers, to recap on her responses and to allow her time to consider the answer she wished to give. I also recommended to the claimant that she took time to consider the question before giving any answer.

[13]The claimant accepted that she had been sent the Grounds of Resistance in the 2018 claim. This contained a summary of the legal position on time limits, which was an issue being taken by the respondent. The claimant accepted (after some clarification) that she had seen the document but could not remember if she had read it in any detail as she had been on medication at the time. She had legal assistance from her Union Rep. at the time and then subsequently had advice from solicitors appointed by the Union (Thomsons).

[14]The claimant did not initially recall instructing Thomsons directly: she said she instructed her Union (PCS). However, she later accepted that she had instructed Thomsons to withdraw the 2018 claim on 13 March 2019 and that she had also spoken to the solicitor after the Case Management Hearing on 11 January 2019. She had not attended that Case Management Hearing believing that she was not invited to attend. I explained the position to the claimant. 3 of 9

[15]The claimant accepted (in response to questions from me) that she had been aware of the 3-month time limit in 2018, after she had lodged the first claim in June 2018. The claimant was initially unclear as to who had prepared and lodged the ET1 in 2018, but eventually confirmed that she had put in the claim herself. She had named her husband as her representative as she was awaiting formal legal representation via her Union. In her string of answers on this point the claimant referred to going to a firm of solicitors (whose name she could not recall) and also to assistance from ACAS.

[16]The claimant accepted in cross examination that she had been aware that she had discrimination claims against the respondent following the grievance outcome and appeal on 13 September and 17 December 2018 respectively. The claimant also accepted that she realised she had a claim against the respondent for delays in progressing her ill health retirement application as at 17 February 2020. The claimant accepted that she had been aware of other discrimination claims in 2018, 2019 and 2020.

[17]The claimant was asked why she had not acted on those claims. She said that she was relying on the Union to act on her behalf. The Union had stopped representing her as at late 2020 (around August/September). The claimant referred to documentation to evidence this, but this was not presented to the Tribunal.

[18]The claimant initially said that she had not sought any legal advice after the Union had stopped helping her. However, she later said that she had sought advice from solicitors (Nelsons) in late January/February 2020 and then again in January/February 2022, but they had not discussed time limits with her. Although the claimant accepted that she knew about the existence of time limits after lodging her claim in June 2018.

[19]The claimant had spoken to the CAB “on and off” although she could not remember when, but she recalled going back to them in early 2023 (after the current claim had been lodged). The claimant also spoke to a Legal Help Line which was available on her husband’s insurance as a former Police officer. The claimant has also tried to get other free legal advice but said it was not easy. She did not specify when she made these attempts or the difficulties she encountered.

[20]The claimant said that her husband had carried out various research online about brining Tribunal claims and had discovered more detail about time limits. The claimant was unclear as to exactly when this was, but said it was probably in 2022. 4 of 9

[21]I asked the claimant what had prompted her to call ACAS on 29 June 2022 and then to lodge her current claim on 11 July 2022. She said that this was because of Susan Quinn’s actions on 6 and 12 April 2022: threatening to terminate the claimant’s employment or to demote her. I note that the claimant contacted ACAS within three months of these actions, which suggests that she was aware of the time limit.

[22]The claimant did not go into detail in her witness statement as to how her medical conditions impacted on her ability to bring her claims in time. She referred briefly in paragraph 35 to health issues and the stress of dealing with these and her husband’s ill health. However, although not technically evidence, the claimant gave much more detail in her submissions about how severely her medical conditions impacted on her day-to-day abilities.

[23]The claimant was asked about her medical condition in cross examination. She accepted that she had all of her three disabilities as at June/July 2022 when she lodged her current claim, without legal assistance.

[24]The claimant was also referred in cross examination to the last sentence of the Particulars of Claim in the current claim where she said, “Limited information is being provided at this stage as I am aware of issuing this claim protectively due to time limitations and that I respectively (sic) request the right to submit Further and Better Particulars of Claim at a later date if advisable”.

[25]The claimant accepted this indicated she was aware of the time limits. The wording of the sentence and the use of language also suggest that the claimant was receiving some legal assistance at this stage, even though she submitted the claim herself.

[26]Based on the claimant’s evidence, I find that she was aware of the three-month time limit for bring claims as early as mid-2018l that the claimant had the assistance of her Union from 2018 to late 2020 and that the claimant has taken legal advice from various sources at several times over the relevant period. She also has, with the assistance of her husband, the ability to research matters relating to bringing tribunal claims and time limits etc online.

[27]There is no dispute that the claimant has been seriously unwell and that she was impacted by her disabilities over the relevant period. However, the claimant has still managed to seek legal advice and deal with internal grievances and other internal resolution processes during this time, with the support of her husband, family and friends. Respondent Submissions 5 of 9

[28]I note that Mr Chegwidden’s written submissions were most helpful in clarifying the claims brought by the claimant.

[29]In considering the out of time point, three categories were identified – - Category 1. Claims which the respondent accepts are in time and are ready to proceed (A Draft List of Issues was attached as an Addendum) - Category 2. Claims which the claimant has not pleaded in her current claim and many of which occurred after June 2022 when the claimant approached ACAS. The claimant has requested (in her witness statement) leave to amend to allow such claims to proceed. - Category 3. Claims which have been pleaded but which are out of time and should not be allowed to proceed.

[30]At the PH we spent considerable time going through the claims identified by the claimant in her Witness Statement and categorised as above. I will not record these discussions in detail in these reasons. Continuing Act

[31]The claimant identified in her statement as a continuing act, her complaint of Failure to make reasonable adjustments (page 16 para 37 c i & ii) These concerned the respondent’s handling of its absence management policy and of pay under that policy. The respondent decided to apply its policy (without changes) in 2018 and this continued up to 2022. The claimant says that as this failure continues her claim is within time.

[32]The respondent referred to 123 (3) (a) EqA, namely that failure to do something is treated as occurring when the person in question decided on it. So that would be in 2018 and is out of time.

[33]I asked Mr Chegwidden for authority on this point. He cited Abertawe v Morgan [2108] EWCA Civ 640 (paras 11-16). This decided that time starts to run when failure to make the reasonable adjustment or from when the claimant is reasonably expected to see that the respondent is not implementing that adjustment. On the claimant’s own evidence that would have been well before 2022. Therefore, I find that the Reasonable Adjustment claim is out of time.

[34]As regards the question of the amendments sought by the claimant which related to matters occurring after the current claim had been lodged in July 2022, Mr Chegwidden accepted that he was unable to point to any real practical prejudice to the respondent in allowing the amendments. The Claimant’s Submissions 6 of 9

[35]The claimant chose to represent herself at the PH. I suggested that Mr Kandola (the claimant’s husband) might help with making submissions on her behalf. I allowed the claimant time to consider this. The claimant insisted that she wished to do this herself. I understand and respect that decision, but the claimant must accept the consequences of that decision and of choosing not to seek legal representation for the PH.

[36]The claimant’s submissions did not really address the issue of out of time or extension of time. She explained in detail how her medical conditions impacted on her family and day to day life. She also explained that she had found yesterday’s hearing difficult, exhausting and overwhelming.

[37]I sympathised and told the claimant about FRU and the Bar Pro Bono Unit (all on List of Sources of Advice sent by Tribunal) and also the Bar’s direct access scheme. I encouraged her to consider obtaining free legal advice and advocacy for any further hearings. I also noted that she may be able to seek assistance from MIND or other mental health charities.

[38]The claimant’s submissions were confused and difficult to follow this is in no way a not criticism of her but is a practical observation. There were many irrelevant statements. The claimant appeared to say in her submissions that all the alleged acts were continuing acts, but this had not been raised in witness statement or anywhere else.

[39]The claimant stressed she could not function day to day, and this impacted on her understanding of matters generally and of legal matters especially. She said she cannot put things together and this takes time. Again, I encouraged her for this reason to seek help with legal advice and advocacy. However, ultimately this is the claimant’s decision. Conclusions – Out of Time

[40]On basis of the evidence and submissions, I find that the following acts are out of time. The references (other than where indicated) are to para 37 of the claimant’s witness statement. Direct Discrimination(a) (i) and (ii) Discrimination arising from disability.

(b) 2 - May 2019 Reasonable Adjustments

(d) Para 21 a, b, c, d, e, g, j i&ii Harassment 7 of 9

(e) (Para 22) a, b, e i &ii, h

[41]In considering whether to exercise my discretion to extend time on the just and equitable basis, I am mindful of Robertson v Bexley Community Centre

[2003] EWCA Civ 536

, which reminds me that the extension is the exception and not the rule. On this basis I find that the claimant had not discharged the burden of proof to show such exceptional circumstances and I do not exercise my discretion to extend in her favour.

[42]I fully recognise the claimant’s disabilities and the impact which they had on her – there is no dispute on this. However, the claimant, by her own submissions, had help and support: primarily from her husband but also from her extended family, sons and friends. She was able to seek advice from her Union and legal advice (both paid and free) at various times when needed. She was able to carry out research online and was able to conduct internal resolution exercises and to bring tribunal claims.

[43]The claimant accepted that she was aware of the Tribunal time limits from mid2018. Many of the claims are longstanding and so I find it would be prejudicial (possibly to both parties) to seek and give evidence on these matters.

[44]On the claimant’s own evidence, what triggered her current claim was the incident in April 2022 when Ms Quinn gave an indication of demotion or termination of employment. That element of the claim is in time and so will proceed. The claimant will not be prejudiced or deprived of her right to bring that claim and others.

[45]I also explained to the claimant that she will be able to use as background evidence all the earlier allegations which I have held to be out of time. These can be used as inferences to show that the actions which are in time are discriminatory. This is an argument which is commonly used in tribunal claims. “Category 2” claims

[46]As we ran out of time, I reserved my decision on these claims, but now set them out below. Conclusions – Claimant’s Amendment Application

[47]The following claims are allowed to be included (as amendments to the current claim). Direct Discrimination – paragraph 37(a) (v) Discrimination arising from Disability – paragraph 37

(b) 4. Victimisation – paragraph 21 j (iv) Harassment – paragraph 22 g and i (iii). 8 of 9

[48]In reaching this decision, I refer to the test in Vaughan v Modality Partnership (

UKEAT/0147/20

) namely the balance of injustice and hardship in allowing or refusing the application. There would be no injustice or hardship to the respondent in allowing these amendments at this stage of the tribunal process.

[49]As mentioned at the PH, I ask Mr Chegwidden to included these amendments in a Draft List of Issues to be used (and hopefully finalised) at the Further Case Management Hearing, which was agreed to be listed on 16 November 2023 before me.

[50]I also repeat my encouragement to the claimant to seek free legal advice to assist her at that hearing and hopefully also at any Final Hearing of this case.

Applicable Law

[51]The EHRC code, which we look to for guidance, sets out what is meant by ‘related to’ in paragraphs 7.9-7.11. It states that related to has a broad meaning and that the conduct under consideration need not be because of the protected characteristic.

[52]The Claimant must establish first that the conduct is unwanted and then whether, taking into account all of the circumstances of the case it is reasonable for the conduct to have the stated effect. This is an objective test with a subjective factor of hearing in mind the perception of the claimant.

[53]The gravity of the conduct is a key part of the objective assessment. Some complaints will fall short of the standard required. Elias LJ in Land Registry v Grant

[2011] ICR 1390

CA (para 47): … even if in fact the [act complained of] was unwanted, and the Claimant was upset by it, the effect cannot amount to a violation of dignity, nor can it properly be described as creating an intimidating, hostile, degrading, humiliating or offensive environment. Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment.

[54]The law also provides that direct discrimination and harassment are discrete matters, because “detriment” does not include conduct amounting to harassment (section 212(1) EA10). Victimisation: Equality Act 2010 s27

[55]S27(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.

(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.

(3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.

(4) This section applies only where the person subjected to a detriment is an individual.

(5) The reference to contravening this Act includes a reference to committing a breach of an equality clause or rule. Discrimination arising out of disability (s15 Equality Act 2010)

[56]Section 15 EQA 2010 provides as follows:(1) A person (A) discriminates against a disabled person (B) if – (a) A treats B unfavourably because of something arising in consequence of B’s disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.”

[57]The ‘Something Arising’ put forward for each less favourable treatment element became quite convoluted and extended at various points. It was therefore difficult at times to unpick exactly what the claimant alleged was causing the treatment. We have had regard to the advice set out in Pnaiser as follows:

[58]In Pnaiser v NHS England

[2016] IRLR 170

the EAT gave the following guidance:(a) 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.

(b) 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. An examination of the conscious or unconscious thought processes of A is likely to be required, just as it is in a direct discrimination case. Again, just as there may be more than one reason or cause for impugned treatment in a direct discrimination context, so too, 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.

(c) 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 simply irrelevant: see Nagarajan v London Regional Transport

[1999] IRLR 572

. A discriminatory motive is emphatically not (and never has been) a core consideration before any prima facie case of discrimination arises, contrary to Miss Jeram's submission (for example at paragraph 17 of her skeleton).

(d) 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. Having regard to the legislative history of s.15 of the Act (described comprehensively by Elisabeth Laing J in Hall), the statutory purpose which appears from the wording of s.15, namely to provide protection in cases where the consequence or effects of a disability lead to unfavourable treatment, and the availability of a justification defence, the causal link between the something that causes unfavourable treatment and the disability may include more than one link. In other words, more than one relevant consequence of the disability may require consideration, and it will be a question of fact assessed robustly in each case whether something can properly be said to arise in consequence of disability.

(e) For example, in Land Registry v Houghton

UKEAT/0149/14

[2015] All ER (D) 284

(Feb) a bonus payment was refused by A because B had a warning. The warning was given for absence by a different manager. The absence arose from disability. The tribunal and HHJ Clark in the EAT had no difficulty in concluding that the statutory test was met. However, the more links in the chain there are between the disability and the reason for the impugned treatment, the harder it is likely to be to establish the requisite connection as a matter of fact.

(f) This stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator.

(g) Miss Jeram argued that “a subjective approach infects the whole of section 15” by virtue of the requirement of knowledge in s.15(2) so that there must be, as she put it, “discriminatory motivation” and the alleged discriminator must know that the “something” that causes the treatment arises in consequence of disability. She relied on paragraphs 26–34 of Weerasinghe as supporting this approach, but in my judgment those paragraphs read properly do not support her submission, and indeed paragraph 34 highlights the difference between the two stages – the “because of” stage involving A's explanation for the treatment (and conscious or unconscious reasons for it) and the “something arising in consequence” stage involving consideration of whether (as a matter of fact rather than belief) the “something” was a consequence of the disability.

(h) Moreover, the statutory language of s.15(2) makes clear (as Miss Jeram accepts) that the knowledge required is of the disability only, and does not extend to a requirement of knowledge that the “something” leading to the unfavourable treatment is a consequence of the disability. Had this been required the statute would have said so. Moreover, the effect of s.15 would be substantially restricted on Miss Jeram's construction, and there would be little or no difference between a direct disability discrimination claim under s.13 and a discrimination arising from disability claim under s.15. Unfair Dismissal – Employment Rights Act 1996

[59]With regard to capability, a reason will be a potentially fair reason for dismissal where it relates to the capability or qualifications of the employee for performing work of the kind for which he was employed to do (section 98(2)(a)) Employment Rights Act 1996 (ERA). Capability here means an employee’s capability assessed by reference to skill, aptitude, health or any other physical or mental quality (section 98(3)(a)) ERA.

[60]As well as showing that capability was the reason for dismissal, the employer will need to follow a fair procedure. The leading case on fairness in ill-health dismissals made clear that the employer should establish the true medical position and consult with the employee before deciding whether to dismiss (East Lindsey District Council v Daubney

[1977] ICR 566

). The EAT stated that: ”Unless there are wholly exceptional circumstances, before an employee is dismissed on the ground of ill-health it is necessary that he should be consulted and the matter discussed with him, and that in one way or another steps be taken by the employer to discover the true medical position”.

[61]The following factors are likely to be relevant when considering the reasonableness of the decision to dismiss (Lyncock v Cereal Packaging Ltd

[1988] ICR 670

):(i) The nature of the employee’s illness.

(ii) The prospects of the employee returning to work and the likelihood of the recurrence of the illness.

(iii) The need for the employer to have someone doing the work.

(iv) The effect of the absences on the rest of the workforce.

(v) The extent to which the employee was made aware of the position.

(vi) The employee’s length of service.

[62]When investigating the medical position, an employer should be judged by the standards of the reasonable employer, not by the standards of whether it left no stone unturned. BS v Dundee City Council

[2013] CSIH 91

[63]DB Schenker Rail (UK) Ltd v Doolan [2010]

UKEAT/0053/09

, held however that the decision to dismiss is a managerial one, not a medical one. While the views of experts will help the employer in coming to a decision, the experts should not dictate the outcome.

Facts

[64]We have made findings of fact only in relation to the matters which were relevant to our conclusions. Where we heard or were taken to evidence that is not referenced below that does not mean we did not consider it, simply that it was not relevant to our conclusions.

[65]All our findings are made on the balance of probabilities.

Background

[66]The Claimant was employed by the Respondent from 21 August 1984 until 31 January 2024. In or around October 2016 the Claimant began to experience ill health following problems at work regarding a move of her workplace and subsequently a failure to move workplace equipment. Her health deteriorated such that she remained off sick from 30 January 2018 until her dismissal on 31 January 2024. For the duration of her absence from 30 January 2018 the Claimant was signed off with stress and/or anxiety and/or depression.

[67]Much of the Claimant’s witness statement dealt with the matters leading up to her being off sick on a long term basis. We do not underestimate the importance of this period of time to the Claimant but the detail of those events are not relevant to our conclusions and therefore we make no findings in relation to it. If the background has informed the decisions or actions of relevant individuals then we explain how below.

[68]The Claimant submitted an Employment Tribunal claim on 25 June 2018 (Claim 1). She subsequently withdrew that claim later that year. We were not provided with a copy of that claim. It was accepted that it raised issues regarding discrimination.

[69]The Claims that we are deciding were submitted on 11 July 2022 (Claim 2) and 14 May 2024 (Claim 3).

[70]The Claimant submitted grievances alleging disability discrimination on 21 June 2018 and 11 July 2022. The grievance of 21 June 2018 was relied upon as being a protected disclosure. We were not taken in huge detail during oral evidence to the details of that grievance but it was investigated and determined by the Respondent in 2018.

[71]The factual basis for the claims before us commences in 2021 against this backdrop. Overarching observations

[72]We have only made findings of fact in relation to the matters which assisted us in coming to our conclusions. Where evidence was put before us that is not referenced below, it does not meant that we did not consider it, it means that it has not assisted us in reaching a conclusion.

[73]All of our findings are made on the balance of probabilities.

[74]The Claimant was extremely unwell at the time of the events that we have to consider. To the best of our understanding she remains unwell. We are very mindful of the possible impact that the Tribunal process and subsequently our findings may have on her health. Nevertheless, a possible consequence of her bringing these proceedings is that we will have to reach findings that she may disagree with and find challenging.

[75]We must also cover various details of the symptoms of her ill health insofar as they are relevant. We have kept this to a minimum where possible.

[76]We only heard from two of the Respondent witnesses. We found Ms Quinn to be a helpful witness who gave detailed thoughtful answers. In contrast, we found Mr Burleigh to be able to answer so few questions about his actions at the relevant time that it appeared that he had not prepared for giving his evidence in any way. We recognise that some of the events he was asked to recall were a long time ago and that giving evidence can be a challenging process. Nevertheless, he had prepared a witness statement in which he recalled certain matters yet during cross examination he appeared not to remember even the events covered in his statement.

[77]The Claimant’s sickness absence was continuous from 30 January 2018. During this extended period of time there were a series of delays regarding a whole range of aspects of the Claimant’s relationship with the Respondent many of which related to communications between the parties about everything from reasonable adjustments to Occupational Health (‘OH’) reports to applications for Ill Health Retirement (‘IHR’) and Civil Service Injury Benefit (CSIB).

[78]It was universally acknowledged by the witnesses we heard from that this was a situation beset by delays and spanned a period when the Claimant was passed between at least 6 different line managers. This inevitably led to a feeling of isolation and disconnection by the Claimant. In her witness statement, she frequently uses the word ‘paranoia’ to describe her feelings about her communications with managers and the delays that occurred. Given the frequency with which there were changes of managers and delays across the board in dealing with the Claimant’s absence in almost all respects, we are not surprised that the Claimant found the whole situation very difficult to cope with and that, on occasion, she felt worried and anxious about why this was happening. My CSP

[79]The Respondent outsources various aspects of their HR functionality to My CSP. The relevant aspects of that, for the purposes of this case are; payroll, ill health retirement and Civil Service Injury Benefit.

[80]We were not told as to what the contractual relationship between My CSP and the Respondent was or is. However it is clear (as is expanded on below) that the Respondent outsourced that provision to this external body and this meant that, on occasion, My CSP caused significant delays and upset by failing to respond to the requests of the Respondent managers and/or failing to properly engage with the Claimant. Telephone Call with Ms Quinn 6 and 12 April 2022

[81]Ms Quinn was appointed as the Decision Maker (DM) in respect of the Claimant’s absence levels. She was not her line manager. The structure at the Respondent was such that a different decision maker was appointed to make decisions in respect of someone’s continued employment in certain circumstances including long term sickness absence. Ms Quinn was an experienced DM. She had worked for the Respondent for 45 years with approximately 20 years of experience as a DM. She was asked to take on this role by Ms Harrison (the Claimant’s then line manager) just prior to Ms Harrison’s departure.

[82]Due to the pandemic, Ms Quinn had trouble accessing and reading the Claimant’s file. We were shown a picture of the file which was a large cardboard box full of papers. We accept Ms Quinn’s evidence that she did not gain access to the box of papers until February 2022. She then took some time to read the papers and requested a case conference on 31 March

[83]Ms Quinn wrote to the Claimant on 6 April 2022 [para 14 of SQ/ W/s]. The first paragraph of that letter states: “Cath told you I would consider whether you should be dismissed or demoted, or whether your sickness absence level should continue to be supported at this time.” (p766).

[84]The Claimant interpreted this as a threat that she would be dismissed or demoted. Whilst we understand why the Claimant focussed on the negative part of this paragraph, it is clear that the purpose of the meeting was for Ms Quinn to discuss the Claimant’s absence with her and for the respondent to decide what it was going to do next. Those choices included dismissal and demotion but also included supporting her absence. It would have been wrong for Ms Quinn not to explain the possible outcomes of the discussion because otherwise the Claimant would not have been able to properly prepare for the meeting or the process.

[85]In the letter Ms Quinn requested a meeting with the Claimant. She suggested that the meeting take place by Teams on 13th or 14th April and asked the Claimant to let her know which would be possible.

[86]The Claimant did not respond and so, on 12th April, Ms Quinn phoned her HR adviser to ask for advice. Ms Thomas (HR) told Ms Quinn to try and contact the Claimant by phone or text. Ms Quinn therefore called the Claimant. During that call Ms Quinn explained the purpose of the proposed meeting. It is agreed that she referred to the possibility of dismissal or demotion. We do not accept that this was done in a threatening way. We find, on balance, that Ms Quinn was explaining her role as Decision Maker and the purpose and possible outcomes of the meeting in circumstances where the Claimant accepted she had not read the letter. It was Ms Quinn’s responsibility and obligation to do so. She was not making threats, she was explaining the purpose of the upcoming meeting.

[87]That meeting did not occur. The Claimant emailed Ms Quinn on 12 April 2022 saying that she was too unwell to take part and asked her to send the questions via email. Ms Quinn did that on 23 June 2022. She put the delay down to a combination of her having a recruitment drive to complete in April and May 2022 and a change in HR personnel who were supporting her. We accept that these were the reasons for the delay.

[88]The Claimant indicated on 19 July 2022 that she was unable to answer Ms Quinn’s questions due to her health. She had emailed Ms Quinn in between stating that she needed longer to reply and that she had had Covid which also delayed her response.

[89]There was then further delays caused by HR’s availability and annual leave for Ms Quinn. Ms Quinn spoke to the Claimant on 16 September 2022 and asked her permission to refer her to OH. The Claimant indicated that she needed time to think about it. Ms Quinn followed up their meeting with an email asking her to respond with OH consent by 30 September 2022.

[90]In total, Ms Quinn emailed the Claimant three times requesting permission to refer her to OH but got no response. It was not until Mr Burleigh took up the cause that consent to refer to OH was received on 1 February 2023. An OH report was produced on 28 February 2023. Telephone call with Mr Burleigh – 20 October 2022

[91]Mr Burleigh became the Claimant’s line manager on October 2021. By this time the Claimant had been off continuously for around 3 years and 8 months. She had also had significant periods of absence between 2016 and 2018.

[92]The Claimant was notified that Mr Burleigh had become her manager by Ms Harrison on 19 November 2021 by email. He had a handover meeting with Ms Harrison and HR on 17 November 2021 (p1214). During that meeting (most of which he could not remember) he says that he was told that the Claimant was off sick and was awaiting the outcome of her ill health retirement application. Mr Burleigh accepted that he believed or was told by someone that contact with the Claimant caused her stress and that this led him wanting to keep any contact to a minimum. We find it more likely than not that he was told this at this meeting.

[93]We find on balance that he did not read the files in full and only referenced the documents that were brought to his attention at various points. However we think it more likely than not that he knew about the fact that the Claimant had brought grievances in the past and had issued a Tribunal claim. We would be surprised if during his briefing with the HR business partner such issues were not raised with him. Further, at various points within the documentation he must have become aware of the grievances and the tribunal claim through references within the file to those actions. His evidence was that he dipped into documents as and when he needed to or when he was signposted to. Given his lack of overall knowledge of this case before us we accept this evidence but we do not accept that this meant he was cogniscant only of the bare bones of the situation without knowing about the grievances and legal case – it is implausible that this was not discussed at the handover meeting.

[94]Mr Burleigh was new to being a manager at this time. The Claimant was his first direct report and she was off sick. Mr Burleigh described receiving the promotion to Senior Executive Officer and then, quickly afterwards, being temporarily promoted again to Grade 7. We also heard from both Ms Quinn and Mr Burleigh that the organisation became overwhelmingly busy during lockdown resulting in a huge recruitment drive and huge change.

[95]Overall however Mr Burleigh’s primary explanation for not contacting the Claimant during the period between taking over her management and this phone call, was that he thought she was being contacted by Ms Quinn in relation to Decision management about her ongoing absence. Something that is dealt with under a different process and not managed by him the line manager.

[96]Mr Burleigh also explained that he had thought that too much contact would upset the Claimant. He said that he believed he had been told this at some point but was not aware where he got this information from. We consider it more likely than not that he was told this in his handover meeting with Ms Harrison and possibly by HR. It is also the case that the Claimant was, from the evidence we have been provided with, upset on most occasions that she was contacted by the Respondent. Contact with her managers certainly forms a significant part of the incidents which are the basis for the Claimant’s claims before us. This is not, in our view, a coincidence. We consider that the Claimant found contact from the Respondent very difficult to deal with whether that be by phone, in person or via email. She became upset during all of the phone calls that we have been made aware of during the relevant period. It was therefore correct and reasonable for the Respondent to tell Mr Burleigh, her new line manager, that she found phone calls from the Respondent stressful and/or distressing.

[97]We accept that these were the genuine reasons that Mr Burleigh did not call the Claimant - even if this resulted in the isolation of the Claimant and breached the Respondent’s own sickness absence policy. We accept that Mr Burleigh used the excuses of Ms Quinn’s involvement and his concerns regarding the possible impact on the Claimant as the reasons why he failed to comply with his basic line management obligations towards the Claimant of staying in touch.

[98]The phone call on 20 October 2022 was the first one that the Claimant had had with Mr Burleigh. Mr Burleigh wrote to the Claimant first via email on 14 October 2022 (p809). He informed her what he wanted to speak about and told her the dates that were present on the current sick certificate and when it expired.

[99]Mr Burleigh could not explain what had prompted his decision to call her on this date. We consider, given the timing, that it is more likely than not that he called because he had received information regarding her CSIB application and that Ms Quinn’s actions had prompted him to get in touch because she explained the difference between their roles when she was trying to obtain permission from the Claimant to refer her to OH . Ms Quinn’s evidence was that she had a meeting with Mr Burleigh on 8 September 2022 at which the difference in their roles was discussed. She also states that the Claimant contacted her on 6 October 2022 saying that Mr Burleigh had not been in touch and that she forwarded that email to HR. We consider, on balance, that Mr Burleigh was chased by HR and that this prompted him to get in touch when he did. We think that prior to that Mr Burleigh had not appreciated that he was meant to be managing the Claimant in parallel with the decision making process that Ms Quinn was attempting.

[100]Mr Burleigh called the Claimant at the time agreed on 20 October 2022. The Claimant alleges that Mr Burleigh ‘insisted’ that she send a sick certificate in immediately and was quite bullish about that. We had evidence from the Claimant and her husband about the phone call. We found Mr Kandola a helpful witness. However, he did not hear the request that Ms Kandola understood to be Mr Burleigh ‘insisting’. He joined the conversation once the Claimant was already upset.

[101]The Claimant says that despite Mr Burleigh knowing that her sick note did not run out, he insisted that she produce one urgently. Mr Kandola says that he heard the Claimant crying and came into their room. He said that he had never interfered with or taken part in one of her calls before but that she was so upset that he felt the need to do so. Mr Kandola says that when he spoke to Mr Burleigh he pushed back on the need for the Claimant to produce a certificate instantly when her previous one did not run out for another 10 days. He says that the conversation between them was firm but ended amicably as he had said what he needed to say.

[102]Mr Burleigh stated that he did not ask her for a sick note instantly. He asked her to send one in as soon as possible because her current one ran out soon. He did not, in our view, properly explain why he needed to speak to the Claimant at all at this point in time regarding her sick certificates. We accept that he was prompted by Ms Quinn’s actions but not why he needed to speak to her about her absence certificate. He had been line managing the Claimant for almost 1 year at this point and never before felt the need to call her. During that time frame we are sure that her sick notes must have needed renewing and that she had sent them in in a timely fashion before.

[103]The written evidence we have on this point varies. Mr Burleigh wrote to the Claimant on 14 October 2022 and in that email he sets out that he knew that the sick note had not yet expired and his language on the matter is not demanding nor does it give a deadline.

[104]We then have an email from Mr Kandola which does not raise any ill feeling about the call. However, about 9 weeks later, on 19 December (p828) the Claimant sends an email which states that she is upset about the insistence that the sick note be produced immediately.

[105]We also see that the Claimant did not in fact send through a sick note until 30 October 2022 which could suggest that she was not concerned by any urgency.

[106]We find, on balance, that Mr Burleigh asked for the sick note as soon as possible and that Ms Kandola interpreted this as insistence. We do not accept that Mr Burleigh intended to place the Claimant under pressure. He had no reason whatsoever to do so. We do not accept that he was somehow motivated by the submission of the Claimant’s ET1 nor by any malice or preconceptions of the Claimant and her health. He did have reason to want the entirety of the Claimant’s sickness absence to be covered and it is quite possible that he wrongly believed he needed a new certificate before the old one ran out though at the time that he made the call. We accept therefore that he may have said something along those lines. We accept that this may have been wrong and that Mr Kandola, during his conversation, politely corrected this misconception. He then confirmed that this was the case in an email on the same day. His email that day is polite and explanatory and confirms that she can back date her sick note by up to 10 days. Any misunderstanding he may have had about asking for it as soon as possible is quickly corrected afterwards.

[107]We do not accept that any such request or error on Mr Burleigh’s part could objectively be interpreted as insistence even though the Claimant genuinely considered it to be. This was a line manager requesting a sick note to replace one that was running out in 5 days. Given the length that it had been running for (6 months) we find it more likely than not that he felt it was important to have it in place. We have been troubled by the very fact that Mr Burleigh got in touch by phone in the first place and whether this suggested an ulterior motive on his part. However we consider that this probably arose because he had been reminded of his responsibility or the need for him to get in touch with the Claimant as opposed to being triggered by anything else. Mr Burleigh had nothing to gain whatsoever from putting the Claimant under pressure, particularly, we suggest, if he was as worried about contacting the Claimant due to her grievances and tribunal claims as she is now suggesting. Although we have found that he was somewhat ineffective in his communication levels with the Claimant, and had not been proactive in any way regarding her management up until this point, we do not believe that he was insisting that she send it immediately. Meeting with Ms Quinn

[108]Ms Quinn’s involvement with the Claimant was ‘paused’ whilst the Claimant was asked to consider IHR. However the Claimant indicated to Mr Burleigh, via email dated 30 March 2023, that she could not answer his questions about ill health retirement. HR therefore advised that the matter should be referred back to Ms Quinn.

[109]On 6 June 2023 Ms Quinn ‘met’ with the Claimant and Mr Kandola by telephone. It was agreed that the Claimant was unable to take an effective part in that meeting in that she could not respond to the questions from Ms Quinn. Mr Kandola requested that she be sent the questions in writing which Ms Quinn agreed to. Ms Kandola responded to those questions on 21 June and when she did so it was with almost one word answers. She did not elaborate on them or provide explanations for her answers. She also indicated very clearly that she found it almost impossible to answer the questions.

[110]The Claimant relies upon this email as being a request for further information about Ill Health Retirement. She also says that in this email she requested more information in respect of the financial implications of IHR. The paragraphs she relies upon reads as follows: “I do not know or how to answer without me understanding the implications or the financial implications. My worry if I answer this way or that way and will it lead to something I am not sure – I am entitled to understand what ill-retirement looks like for clarity.”

[111]We make the following findings in relation to that paragraph:(i) It is not a clear request for any such information or guidance. We would not have understood it as a request unless the Claimant had suggested it was. In context it appears to be an expression of her confusion and inability to respond to the questions she has been asked.

(ii) It would not have been possible for Ms Quinn to provide financial advice in this way i.e. providing any information that would have enabled the Claimant to understand the financial implications of making the application.

(iii) The Claimant had previously made an IHR application and so knew what the process entailed and knew what information could be provided by the Respondent. She would have known that the Respondent’s employees, including Ms Quinn, could not provide financial advice and we do not consider that this paragraph was a request for that advice or information.

(iv) The Claimant had been sent the available and appropriate information regarding IHR previously, most recently in March 2023. She had presumably read and understood it when she made her earlier application. She had access to it if she had forgotten the process or basis for making such an application CSIB application

[112]The Claimant applied for the Civil Service Injury Benefit on 29 May 2019. CSIB was managed and provided by My CSP which is a separate organisation to the Respondent. What followed was a catalogue of delays by the Respondent and My CSP and the Claimant. The Respondent’s actions included repeated requests for more information, the wrong ‘type’ of benefit being applied for and frequent changes in managers and personnel dealing with the situation. However, this all predated Mr Burleigh’s involvement. The Claimant’s inactions (however understandable and explicable) resulted in there being numerous delays in receiving consent forms and attending medical appointments. This was a complicated drawn out process with numerous difficulties not caused by any one person’s fault or actions but nevertheless we recognise that it must have been very difficult for the Claimant to engage with.

[113]It is clear from the Respondent’s absence management process that dismissal cannot be considered whilst a CSIB application is outstanding. [pg 1272]. However, at the same time as the matter is handed over to Mr Burleigh as a line manager, Ms Harrison also hands the case to Ms Quinn as a Decision Maker. Technically we accept that a Decision Maker is not meant to be appointed whilst such a process is outstanding. However it is also clear that the progress of the CSIB application was out of the Respondent’s hands at this point.

[114]We can see from Ms Harrison’s letter on 15 September 2021 that she believed the process had lapsed as she wrote to the Claimant in those terms. (pg 668-673). There was however a further meeting on 14 October 2021 where it is clear that there was a discussion about CSIB. Ms Harrison understood that there were some consent forms outstanding and that without them the claims could not progress. The Respondent ascribes at least some of those delays to the Claimant. Ms Harrison sent an email to MyCSP on 11 November 2021 (p700) asking about it following her meeting on the 14 October 2021 and the subsequent correspondence with the Claimant on this point. She received a response on 18 November 2021 (p700) which confirmed that the Claimant had submitted further medical evidence but there seemed to be some confusion about what else needed to be submitted and that this would be followed up with the Claimant. There was no suggestion in this email that the Respondent (i.e. Ms Harrison or subsequently Mr Burleigh or even Ms Quinn) needed to do anything further.

[115]The clear indication from all the correspondence we have seen was that the relationship was between the Claimant and MyCSP and that MyCSP was managing the process. Mr Burleigh states that he was unaware that the CSIB process was ongoing when he received the handover. He had thought that it had lapsed. We do not think that this is correct. For example, Mr Burleigh was copied in to an email from Ms Harrison on 24 November (p753) which references that the process is outstanding and that MyCSP were trying to find out what the third party provider of the CSIB still needed and that they would provide an update once they had established that. What is correct however is that there was nothing outstanding for Mr Burleigh to do at this point. This email would not have prompted any action on his part. He was waiting for an update from MyCSP regarding either further information required, or a decision.

[116]We were not taken to any further information that suggests that Mr Burleigh failed to do something in relation to this process until after the request was approved.

[117]The Claimant’s request was finally approved on 28 February 2022. Mr Burleigh sought advice as to what to do at that point and he was then emailed on 3 March 2022 with guidance. He then did not do anything until 30 March. He explains this delay by saying that he was on annual leave and then, when he returned, he wanted to familiarise himself with the file to ensure that he had a proper understanding. He does not find time to do that. We accept that this was the reason for the delay. Whilst it is a delay of approximately 1 month, we find, on balance, that this was caused by Mr Burleigh’s poor time management issues as opposed to any deliberate decision by him to not deal with the Claimant’s situation.

[118]Although Mr Burleigh remembered little during his evidence before us, the email chain at pages 786-792 allows us to conclude that Mr Burleigh was making significant attempts to ensure that the payments were made from 30 March. He completed a form promptly and was then told it was the wrong form and had to resubmit it. He also had to seek the information regarding the Claimant’s sickness absence days from HR and this was delayed because much of it was recorded on an old system that could not easily be accessed. During this period, Mr Burleigh was chasing the relevant people but the ‘system’ was difficult to penetrate because he could not speak to the same person twice. Once he finally obtained the dates he submitted them to My CSP and the Claimant received payment in June.

[119]We accept that there were two different periods of delay. Firstly between 3 March and 30 March. Whilst it is regrettable that there was any delay at all, in the scheme of this case, this delay was minimal. We accept that it was caused by Mr Burleigh’s time management issues. The second delay was from 30 March until June. That was not due to the actions or inaction of Mr Burleigh. Rather it was due to a fragmented system that did not, on this occasion, operate well. The fragmented system has, overall, caused numerous difficulties and delays in this case. It is a significant cause for concern that a line manager is not able to easily access such basic information as how long somebody has been unwell for, what their pay rates were on relevant dates, and what forms they are meant to complete to allow access to a contractual benefit that has already been granted. That a ‘call centre’ dynamic was added to the system thwarting any effective communication and advice to the managers compounded the difficulties and caused delay at numerous points in this case. However those issues were not caused or intended by Mr Burleigh; they were a systemic problem within the Respondent that has caused many difficulties for all concerned in this case. Ill health retirement

[120]The ill health retirement (‘IHR’) policy (pg1314) states that an individual must apply for IHR. We were taken, during cross examination of the Claimant, to the information that the Claimant was provided with regarding the IHR policy and how to apply.

[121]The Claimant’s first application was refused. On 15 September 2021, Ms Harrison wrote to the Claimant and told her that she could reapply for IHR as it had been two years since the Claimant last applied. This was also discussed at the 14 October 2021 meeting but appears to have become muddled with conversations regarding the CSIB application. It is clear that Ms Harrison did not understand that the CSIB process continued whereas the Claimant did and this led to confusion and a jumbled discussion on the various topics. However in Ms Harrison’s follow up letter to the conversation on 14 October 2021, she sent the Claimant the information on IHR again.

[122]We note that she was informed by Mr Burleigh that she should consider applying for IHR again on 25 November 2022 and it was suggested to her again on 3 March 2023 when her February 2023 OH report was forwarded to her. Attached to Mr Burleigh’s email dated 3 March was the policy and the procedures relating to IHR.

[123]The Claimant’s evidence to us was that she could not make a decision about IHR because she could not properly evaluate the policy against her situation.

[124]We find that the possibility of ill health retirement was discussed with the Claimant at all opportunities when the Claimant was able to engage in conversations with her managers. When she was not able to engage with them orally, they wrote to her and the possibility of IHR was raised in correspondence when they outlined what the possible next steps could be. Ms Harrison had provided the Claimant with the written IHR policy in November 2021 before leaving. It was provided again by Mr Burleigh in March 2023. At no point after that did the Claimant explicitly ask for the policy information again nor take any steps herself to evaluate the possible financial implications of taking such a step. We accept that neither Mr Burleigh nor Ms Quinn nor any of the Respondent employees would have been in a position to provide such a financial analysis in any event. The Claimant had been through the process before, she understood that she needed to make such an application and she was given several opportunities to do so. The Claimant appeared to suggest, during evidence, that the reason that she did not properly consider it was because she wanted to return to work. We saw, during these proceedings, that the Claimant considered that because she had been employed for so long by the Respondent, they ought to have understood that she remained committed to and wanted to return to work. However we find she did not take into account the fact that an employer cannot wait indefinitely for such a possible return. All the medical evidence and the Claimant’s own evidence clearly demonstrated that the Claimant was not going to be able to work in the foreseeable future. Despite this, at the time of the facts that we are considering, the Claimant would not entertain the idea that she might leave the Respondent’s employment through retirement. It was, it seems to the Tribunal, the logical next step, particularly in the face of a possible dismissal. Yet, inexplicably, the Claimant did not consider this as an option at this point in time. Her failure to do so is not a reflection of the Respondent’s actions. Decision to dismiss

[125]During 2022 Ms Quinn attempted to engage with the Claimant regarding her situation. The Claimant indicated that she was too unwell to meet with Ms Harrison so she put the questions in writing. She also sought the Claimant’s authority to refer her to Occupational Health on 16 September 2022, 13 October 2022 and 24 October 2022.

[126]The Claimant did not respond to those requests and no authority was given until 1 February 2023 for an OH referral. The report was produced on 28 February 2023. On receipt of that OH report it was again suggested that the Decision Making process be, in effect, paused, whilst the Respondent asked the Claimant whether she wished to consider IHR. Mr Burleigh emailed her to that effect. She said that she could not respond. After approximately 2 months with no affirmative response from the Claimant regarding IHR, the file was referred back to Ms Quinn on 10 May to make a decision.

[127]Ms Quinn wrote to the Claimant on 22 May 2023 explaining that the case had been re-referred back to her because the Claimant had not made a decision regarding IHR.

[128]Subsequently, Ms Quinn met with the Claimant and her husband on 6 June 2023 (by phone or Teams but not in person). At the time that she met with the Claimant, the Claimant had no outstanding CSIB process and she had not made an application for IHR. It was common ground between the parties that the Claimant was unable to engage with the questions Ms Quinn asked during the meeting. It was agreed that Ms Quinn would send the questions in writing which she did on 7 June 2023.

[129]The Claimant responded on 21 June 2023. The Claimant’s answers were that she could not come back to work in any capacity. She gave little more than one word answers to the questions. “a) Can you provide a reasonable estimate of when you expect to return to work?: ‘No I cannot’ b) Are you able to confirm a specific date?: ‘No I cannot’ c) Do you feel you will be able to offer regular and effective service to DWP going forward?: ‘No I cannot’ d) Do you feel able to return to your previous job role?: ‘No I cannot’ e. If you do anticipate a return to work in the foreseeable future, how could we best put a return-to-work plan in place to support you?: ‘I am too ill now, I am under the care of a psychiatrist now’ f. Are there any adjustments you would like me to consider to enable your return to work? E.g. a phased return, amended duties, a referral to Occupational Health etc.: ‘An occupation referral was already made, I am under the care of a psychiatrist now’ g. Would you like any additional support with your return to work? i.e. additional training, mentoring or buddying support from a colleague?: ‘I am too ill now, I am under the care of a psychiatrist now’

[130]Unfortunately, on 23 June 2023, Ms Quinn was suddenly taken extremely ill. Despite this, on 25 June she asked a colleague to notify the Claimant that she was off sick and could not deal with her situation at that time. The colleague did not do so and the Claimant remained under the impression that Ms Quinn was ignoring her response until Mr Burleigh replied to an email from the Claimant in September 2023 and told her that the decision maker was off sick. The only reason Ms Quinn did not respond to the email was her own sudden sickness absence.

[131]Shortly after her return to work at the end of September 2023, Ms Quinn emailed the Claimant on 3 October 2023. She apologised for the delay and asked if the Claimant wanted another meeting and whether she wanted to update Ms Quinn in any respect regarding her health or situation. She also offered to refer the Claimant to OH again. The Claimant agreed to the OH referral. She did not respond to the request for a meeting and in apparent reply to Ms Quinn’s query as to her current position, she simply said, “You have my email of 21 June 2023.” The Claimant said in evidence before us that she did not mean that this was her response to that request but it is hard to understand what else it could be or how else it could be interpreted. She did not respond at all to the suggestion of a further meeting.

[132]As a result of her response a further OH report was provided on 9 November (p865). That report clearly states that the Claimant remained too unwell to return to work and confirmed that there were no adjustments that could be made to enable her return to work.

[133]The Claimant has said that she expected Mr Burleigh or the Respondent generally to work with her to find a possible route to her returning to work. She suggested in her evidence to us that had they sat down with her and discussed things then slowly, she would have been able to return. However we make the following observations:(i) Every meeting or phone call between the Claimant and the Respondent from 2022 onwards caused the Claimant significant distress and/or the Claimant was unable to engage with them directly in any event. It is therefore not clear how they would have been able to have any such meeting.

(ii) The medical advice consistently said that there were no adjustments that could be made

(iii) The Claimant herself asserted on multiple occasions that she was too unwell to work and too unwell to meet with the respondent or even reply to their emails effectively.

[134]Prior to dismissing the Claimant we accept that Ms Quinn checked whether the Claimant still had an up to date sick certificate and what the reason for absence on it was. The certificate covered the Claimant until 23 January 2024. She also considered whether the Claimant was entitled to anything under the Civil Service Compensation Scheme (‘CSCS’) which we address below.

[135]She told us that she did not consider asking the Claimant to another meeting because the Claimant had not responded to her earlier request and her experience to date had been that meetings distressed the Claimant.

[136]On reaching her decision to dismiss, Ms Quinn messaged MyCSP to find out how much the Claimant might be entitled to on dismissal. We accept that she chased during December 2023 and January 2024. She received a response on 17 January 2024 and carried out the CSCS assessment which we discuss below. Once she had submitted that for approval to MyCSP, she emailed the Claimant on 23 January 2024 to apologise for the delay and explain that it was due to delays with MyCSP.

[137]Ms Quinn had a case conference with HR on 24 January 2024 where she received advice on the CSCS compensation awarded. Then, on 26 January 2024 she wrote to the Claimant to confirm that she had decided to terminate the employment and explained why (p878-880). She offered the Claimant the right to appeal which the Claimant did. Decision to award 25% of the CSIB award

[138]The relevant criteria for assessing the level of a CSCS award is set out at p 1243. It sets out a list of matters that all require consideration. Ms Quinn’s reasons are set out in her dismissal letter and we have a copy of the actual assessment she did (p1560).

[139]Ms Quinn’s evidence was that she considered that the Claimant fell within the 25% bracket because she had co-operated with some measures but her communication had been poor and she had not demonstrated a commitment or desire to return to work.

[140]Ms Quinn was aware of all the medical evidence at this point. She, unlike Mr Burleigh, had done a thorough review of all the paperwork and fully understood the situation. We find, on balance, that she knew that much of the reason for the Claimant’s slow rates of response and failure to engage with certain aspects of the process was because of her ill health and the symptoms of that ill health.

[141]We consider that Ms Quinn did not factor in the impact of the Claimant’s ill health on her ability to comply with the processes when making her assessment and therefore did not consider whether the delays and apparent failures by the Claimant were not deliberate but were caused by her conditions. Nevertheless, we consider that Ms Quinn undertook the process in good faith and took her responsibilities seriously and attempted to apply the criteria that there were to the Claimant. It is factually correct that the Claimant’s communication had been poor and that her failure to engage with repeated, often simple requests for information, had caused significant delays and difficulties. The fact that the Respondent’s systems had caused far worse delays was not part of Ms Quinn’s decision making process and was not meant to be.

[142]We do not think that it is factually correct to say that the Claimant had not demonstrated a commitment or desire to return to work. To make such a statement entirely disregards the fact that the Claimant could not return to work due to her ill health. Appeal Decision

[143]The Claimant appealed on 9 February 2024. In respect of the decision to dismiss, the Claimant appealed on three main grounds:(i) The Respondent had failed to establish the true medical position

(ii) The Respondent had failed to consult with the employee

(iii) The Respondent had failed to consider alternatives to dismissal

[144]The Respondent did establish the Claimant’s up to date medical position. The OH report dated 9 November 2023 stated that the Claimant was not able to work and there was no indication that she would improve in the foreseeable future. There was a sick certificate in place when Ms Quinn made the final decision to dismiss though it was only valid until the day before she dismissed. Before us today, the Claimant was unable to point to any evidence available then or since which suggested that her health improved or was likely to improve at the relevant time.

[145]The Respondent had consulted with the employee. Ms Quinn asked her in writing to update her on her position since their meeting in June 2023. She offered her a meeting to which the Claimant did not respond. In circumstances where every meeting and interaction with the respondent caused the Claimant distress and stress and where the Claimant had been given the opportunity to update the Respondent, we find that there was no such failure.

[146]The Respondent had considered alternatives to dismissal in that they had repeatedly encouraged the Claimant to apply for IHR. She had not done so. There were no other realistic alternatives available to the Respondent. Ms Quinn says that she considered whether the Claimant could be demoted or put in an alternative post but that this was not going to assist with the return to work. We accept that she did consider this but that all the medical advice indicated that no alternative work would be possible either.

[147]Ms Jury-Onen did consider all of the points. Although we did not hear evidence from her, her witness statement was largely backed up with paperwork in the bundle or the evidence from Ms Quinn. Ms Quinn confirmed that Ms Jury-Onen was appointed as the appeal manager in November 2022. She indicated that she was passed all the relevant paperwork.

[148]We accept Ms Jury-Onen’s witness statement that she considered the file in full as this is evident from the detailed assessment she carries out in the CSCS review and in her outcome letter. This reflects a detailed approach and careful consideration of the information provided.

[149]Ms Jury-Onen upheld the decision to dismiss. However, she re-graded the Claimant’s CSCS award to 75% on the basis that Ms Quinn had not factored in the impact of the Claimant’s health conditions on her ability to fulfil the criteria used.

Conclusions

[150]Although we would normally reach our conclusions in relation to direct discrimination first given that any acts of direct discrimination cannot also be acts of harassment, we have, due to the nature of our deliberations and the more extensive nature of the harassment claim, set out our conclusions regarding the harassment claims first. Harassment (s.26 EQA)

[151]As per the legal analysis set out above, determining harassment involves several steps. Firstly we must consider whether the Respondent did certain things, then, if yes, whether they related to her disability. Then we must consider whether that treatment was intended to or perceived as creating the proscribed environment. If it was not intended to but was subjectively perceived as creating the proscribed conditions then we must consider whether the perception was objectively reasonable.

[152]We have taken each relied upon incident in turn. Mr Burleigh deliberately failing to contact C on becoming her line manager between February to June 2022

[153]The time period outlined above was somewhat odd. Mr Burleigh was appointed as the Claimant’s line manager at some point in October or November 2021. From the line relied upon above and the dates given, there appears to to be no criticism of Mr Burleigh’s failure to contact the Claimant from November 2021 until February 2022 though if the word ‘And’ were inserted as follows “failing to contact C on becoming her line manager and between February to June 2022” it might make more sense. It is not clear why the time period is outlined as it is but we assume that it is because the Claimant’s CSIB payment was approved on 28 February 2022 but not paid out until June 2022 and Mr Burleigh did not get in touch with the Claimant during this period. The basis for this section of the claim being limited to these dates was not changed by the Claimant at any time during these proceedings to cover the entire period for which Mr Burleigh did not contact the claimant (Nov 2021 until Oct 2022).

[154]In Mr Mortin’s written submissions we were taken to various parts of the pleadings which could have suggested that the entire period was what was being complained of because it is clear from the pleadings that the Claimant stated that ‘A new manager was appointed after Cath left John Burleigh but I have never had any communication from him.”

[155]That is not the case that was clarified at the outset of these proceedings when the List of Issues was discussed and when the parties provided a final agreed, consolidated List of Issues on the penultimate day of the hearing. We have reminded ourselves of the case law regarding our approach to pleadings and any List of Issues. We understand our obligation not to slavishly stick to a list of issues and that a Tribunal has an obligation at the outset of the hearing to ensure their understanding of what the issues are which would include reference to the pleadings and their clear meaning and parameters. However where a statement of issues has been agreed and created by the parties, as in this case, then the Tribunal is entitled to view this as fully establishing the parameters of the hearing and the necessary evidence. In this hearing we heard an application to amend at the outset of the hearing and the dates of this particular part of the claim were not mentioned or clarified nor was it suggested that ‘And’ ought to be inserted as we have suggested above. The apparent attempts by Mr Mortin in his written submissions to rectify this, is, in our view, too late. The Respondent’s evidence and its cross examination of the Claimant focussed specifically on the period between February and June 2022. It was entitled to rely upon claim as described in the agreed List of Issues.

[156]However, our factual and motivational conclusions relating to the period between February and June 2022 are broadly the same as those in relation to Mr Burleigh’s failure to contact the Claimant from the point that he was appointed as her line manager in any event. There was some disagreement between the Tribunal panel on this point. The majority (Mr de Chaumont Rambert and EJ Webster) concluded that his decision not to contact her was due to a combination of his lack of understanding of his role as a line manager and his rapid promotions, possibly amounting to too much too fast in respect of his ability to manage all aspects of his role and in particular his management responsibilities. The majority of the Tribunal did not consider that the lack of contact was deliberate more that it was born out of an unconscious failure to prioritise.

[157]For the time period that the Claimant relies upon between February and June 2022 the Tribunal was unanimous that Mr Burleigh was clearly making efforts to progress the Claimant’s CSIB payment from 30 March 2022. This suggested to the majority that he was not deliberately ignoring the Claimant or her position at this time even though he was not in direct contact with her. The majority therefore conclude that Mr Burleigh assumed that as My CSP were in direct contact with the Claimant about her payment and that Ms Quinn was in contact with the Claimant from 6 April 2022, Mr Burleigh wrongly assumed that this meant he did not need to be in touch as well at this time.

[158]Further we find, that the delay in contacting the Claimant was, for the entire period (Nov 2021 appointment to June 2022) was born of inexperience, a high workload and perhaps ineptitude but it was not deliberate. Therefore, on a majority finding, the act relied upon as described did not occur.

[159]Mr Cronin disagreed. He considered that such a lengthy, protracted failure to contact the Claimant from the point of taking over as line manager in October/November 2021 must, at some point, have become deliberate. He considered that the failure to get in touch between November 2021 and October 2022 became a deliberate choice simply by virtue of the fact that it was so protracted. Mr Cronin’s conclusions did not analyse the difference between the different time periods and relied upon an overall impression of the failure by Mr Burleigh for almost one year to contact the person he was line managing.

[160]The Tribunal unanimously agreed that this was not a good situation nor one that ought to have occurred. However our views as to its causes differed. Mr Cronin did not assign a cause to Mr Burleigh’s failures but was of the opinion that after such a period of time, such a delay becomes deliberate. The majority disagreed.

[161]Mr Cronin did agree with the majority that the failure between February and June 2022 coincided with My CSP being at least nominally responsible for some of the communications with the Claimant and that as Ms Quinn was in touch with the Claimant in April 2022, that the Claimant was not wholly without contact from the Respondent during this period.

[162]As all decisions made by a Tribunal can be reached on a majority basis, in this case, our overall conclusion is that there was no deliberate failure by Mr Burleigh and therefore this element of the claim cannot be upheld.

[163]For the sake of completeness though and due to the fact that this was a majority as opposed to unanimous finding we have analysed the remaining aspects of the harassment legislation and reached conclusions on those too.

[164]A delay to contact someone who is off on long term sick leave, could relate to the Claimant’s health. The Claimant’s health was not the ‘cause’ of the delay but given the circumstances, and taking the wider definition of ‘related to’ into consideration, contact or lack of contact with the Claimant to manage her and her absence whilst she is on sickness absence would relate to the Claimant’s health.

[165]We conclude that Mr Burleigh’s failure to contact the claimant did not have the effect of creating the proscribed environment for the Claimant.

[166]We accept, that in principle, if an employer fails to have contact with an employee for almost a year, it could reasonably create an intimidating or hostile environment. We accept that a person could feel abandoned and rejected by an employer in those circumstances. The List of Issues limits us to the period of February to June 2022 but it is against a backdrop of the fact that Mr Burleigh had not contacted her prior to that in any event.

[167]We accept that the Respondent and Mr Burleigh knew or ought to have known that the Claimant might have felt that nobody cared and she did not know what was happening (p423) as she had previously articulated these feelings when there had been a gap in contact.

[168]However during the period from 28 February when she received the CSIB outcome from My CSP, the Claimant knew that it was My CSP that was processing the CSIB payment. She knew that Mr Burleigh was her line manager and whilst we accept he ought to have made contact before this, had she actively wanted him to contact her, she could have made contact with him. She did not and we consider that this was because she did not actively want contact from him during this period. She has not said what she considered Mr Burleigh ought to have told her during this specific period when she knew that her payment had been approved, she knew that My CSP were managing it and she was in touch with Ms Quinn from 6 April 2022.

[169]When Ms Quinn got in touch it caused the Claimant distress. We have made findings of fact above that Ms Quinn’s communications were all entirely reasonable and justifiable yet it caused the Claimant huge levels of upset. She also found it almost impossible to read and respond to emails. When she did finally speak to Mr Burleigh, it caused her great distress. We therefore consider that had there been earlier contact from Mr Burleigh would more likely than not have had the same effect. At the relevant time, or even from November 2021, the Claimant did not perceive Mr Burleigh’s lack of contact as hostile or degrading. She found the delay in getting her payment from My CSP difficult but she knew or ought reasonably to have known that she needed to communicate with My CSP about that. In any event at no point does she contact Mr Burleigh and ask him what is happening. This is because both she and Mr Burleigh assumed that all relevant communications ought to have been occurring between the Claimant and My CSP.

[170]If the Claimant was intending to rely on the entire period from November 2021 until October 2022 and Mr Burleigh’s overall failure to be in touch we restate the fact that this was not the claim we were asked to decide.

[171]However in his written submissions Mr Cronin focussed on the fact that the Claimant was not receiving the help and support that a respondent should have provided to her by way or regular contact meetings with her line manager and that this hostile environment would plainly have contributed to her own feelings of despair in relation to her situation at work.

[172]However it was also true that during this particular year, all contact that we are aware of from the respondent, in any form, caused the Claimant distress. Almost all calls or ‘meeting’s between the Claimant and her managers during this period form the basis for the claims we are deciding. We do not think that this would have been different if Mr Burleigh had been in touch earlier even if he ought to have been according to the Respondent’s policies. The test we have to consider is whether the lack of contact from Mr Burleigh actually had the proscribed effect relied upon. We do not accept that it did. We agree that Mr Burleigh ought to have made contact, when he took over as line manager but this failure did not actually have the effect on the Claimant that she now states it did. Whilst it was not her responsibility to do so, the Claimant knew he was her line manager and did not attempt to get in touch with him or suggest to him that she found his lack of contact concerning. We consider that she did not do this because she did not, in fact, want any contact from Mr Burleigh. His failure to contact did not, during this period, have a negative impact on her.

[173]She knew that she was signed off sick and was not able to return to work during this period. Further she knew from 28 February that her CSIB claim had been approved, that My CSP were managing the situation and she knew that Ms Quinn was considering her absence and whether she ought to be dismissed. Taking the situation as a whole, we do not consider that it was Mr Burleigh’s lack of contact that caused the Claimant to feel violated or created the proscribed environment. The Claimant was very unwell. She found any thoughts about her work situation troubling and difficult. Any manager’s actions or inaction was part of that picture but the Claimant has not demonstrated that it was not Mr Burleigh’s action or inaction that caused her to feel this way. In this particular instance we do not find that Mr Burleigh’s failure to be in touch had the proscribed effect in any event.

[174]For the sake of completeness we do not accept that the delay was intended to have the effect of violating the Claimant’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for her. Mr Burleigh was not motivated by any negative feelings towards the Claimant and had no intent to create such an environment. This is evidenced by his attempts to provide information to My CSP as and when it was requested. Although Mr Cronin considered that Mr Burleigh’s delay was so long it must have been deliberate, we unanimously concluded that Mr Burleigh was not intending to create the proscribed environment by any failure to contact the Claimant. If anything he was trying to avoid it because he believed too much contact would upset the Claimant. Therefore there was no relevant intent. Ms Quinn threatening to terminate C’s employment or demote C on 6 and 12 April 2022.

[175]We have found as a question of fact that this did not occur as described). Ms Quinn did not threaten to terminate the Claimant’s employment or to demote her. She outlined demotion and dismissal as possible outcomes of the Decision Making process and it was her obligation to do so. She also outlined the possibility of continuing to support the Claimant’s employment. All possibilities were listed as options, not threats.

[176]This claim cannot be upheld as it did not factually occur as described. Deliberate delays by Mr Burleigh in providing information relating to C’s CSIB claim between 28 February 2022 to June 2022

[177]Although touched on above in relation to Mr Burleigh’s failure to contact the Claimant, we were taken to clear evidence that Mr Burleigh was proactive from 30 March onwards in respect of providing information to the external providers who needed it and was in correspondence with Ms Quinn and HR. There were no delays by him from 30 March until her monies were paid out.

[178]There was no disagreement between the panel that, on this occasion, any delay between 28 February and 30 March was not deliberate. It was caused in part by Mr Burleigh’s annual leave and in part due to his inability to properly prioritise for the reasons already touched upon above.

[179]The delay between 3 March and 30 March, which was the only delay left as being in contention did not have the effect of creating the proscribed environment. This was just under 4 weeks in a case that was beset by delays of many months on both sides. This specific time period did not have the effect of violating the Claimant’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for her.

[180]We consider that if the Claimant did perceive such an environment it was not because Mr Burleigh was not providing the information to My CSP, but because she was confused and upset by the fragmented processes which the Respondent operated. She was not considering Mr Burleigh’s actions as separate from that overall picture nor that this period of delay was significant.

[181]Any action or inaction by Mr Burleigh was not intended to create the proscribed environment as is discussed above. Further, even if she did perceive it to be such it is not objectively reasonable that the period between 3 March and 30 March could have such an impact in such a long running and protracted case. By this time the Claimant had been off sick for over 3.5 years and had frequently had gaps in her contact with the Respondent during this period. 182. Failing to pay C the CSIB award earlier. C asserts such payment ought reasonably to have been made by early April 2022.

[183]The obligation to approve and pay the Claimant lay with My CSP not the Respondent. The Claimant was aware that the shortcomings were those of My CSP not the Respondent as she herself (or her husband on her behalf) had been contacting them repeatedly to get a response to various aspects of her claim and had been so for several years. The delay between March when the payment was approved and June when she received her payment was caused by My CSP and not any action or inaction by Mr Burleigh or the Respondent. My CSP required various bits of information concerning the Claimant’s sick leave. Mr Burleigh made every effort to obtain that information and pass it on. On 20 October 2022, Mr Burleigh insisting that C provide him with a sick note despite her current one having not yet expired?

[184]We found, on balance, that although this call clearly upset the Claimant, Mr Burleigh did not ‘Insist’ on the Claimant providing him with a sick note. He told her that it was required and we accept that he asked for it as soon as possible. Nevertheless, we do not accept that he insisted. This is clear by the fact that the Claimant did not send her sick certificate until some time later and by the follow up email from Mr Kandola confirming their conversation. Therefore this part of the claim cannot be upheld as it did not occur as described.

[185]Further, although the request for a provision of a sick note is related to the Claimant’s disability, we do not consider that, objectively, a manager asking an employee to send in a sick note, even if he was asking for it earlier than it was due, could objectively be reasonably perceived as treatment which created the proscribed environment. Mrs Kandola had been off sick for several years. She knew of her obligation to provide a sick note and was being reminded of that. She also knew that this was part of the reason for the conversation as Mr Burleigh had indicated that in his email before the call. It is unclear as to how that could objectively be so distressing unless Mr Burleigh was wholly unreasonable during the call which we do not consider that he was. We have no doubt that Mrs Kandola found this conversation upsetting. However we do not consider that it was reasonable for it to have this effect particularly in circumstances where Mr Burleigh’s written communications both before and after the meeting clearly show that he is not expecting the sick certificate immediately. It is not plausible that his behaviour during this call was so wildly at odds with what he wrote down as being his understanding of the position both before and after the telephone call. Mr Kandola was a helpful witness, but he had not overheard Mr Burleigh insisting on something from his wife. He entered the room once his wife was already very upset. Even if Mr Burleigh restated his request for a sick note as soon as possible to Mr Kandola and had to have the rules regarding the dates of sick notes explained to him, we still do not accept that it was reasonable for such a request to have the proscribed effect on Mrs Kandola for the reasons given above. A failure by management to respond to C’s requests for further information. In particular, Ms Quinn failing to reply to C’s email dated 21 June 2023.

[186]We have found as a question of fact that the Claimant did not ask for this further information. Her email either was not a request or it could not reasonably have been read as a request for information about Ill health retirement. It was a statement saying that she found it difficult to make a decision. We do not accept that Ms Quinn understood or ought to have understood that she was therefore in a situation where she ought to have provided the Claimant with information about IHR. The Claimant had, as recently as March 2023, been sent the information about how to make an application, she had made an application previously and the Respondent was not in a position and never had been in a position to provide the financial advice that the Claimant is now saying she was seeking. Therefore even if Ms Quinn had understood that this was a request, she could not have provided the information apparently sought. There was no failure to provide information and this claim cannot succeed. Ms Quinn’s decision, set out in her letter dated 26 January 2024, to award C only 25% of compensation under the Civil Service Compensation Scheme.

[187]Our conclusions in relation to this matter, were informed by Mr Chegwidden’s submissions regarding the case law in this matter. We have do not set out those submissions in full as we accept that his analysis of the case law regarding the conferring of benefits is correct. Mr Mortin did not really rebut this legal analysis in his submissions.

[188]Mr Chegwidden’s submissions start with the assertion that the appeal process is part of the overall dismissal process and that as the Claimant was not complaining about the award of 75% (as she received per Ms Jury-Onen’s appeal decision), her complaint cannot succeed as she was never actually subjected to the detriment of the lower payment in any event. We consider that this is relevant to the unfair dismissal claim rather than to a claim of discrimination.

[189]Although it is not the basis for our decisions, we disagree with Mr Chegwidden’s analysis that no aspect of a decision to dismiss, if rectified on appeal, could amount to an act of discrimination. If applied to acts of discrimination we consider that this would mean that a dismissing manager could, for example, use discriminatory language when dismissing an employee but provided that was apologised for and corrected on appeal, the employee could not bring a claim for discrimination. We do not think that a discriminatory act can be erased in that way. In this case, the CSCS decision letter sent by Ms Quinn, could in theory amount to a separate act of discrimination even if it was rectified on appeal. It seems to us that the relevance of the appeal correcting the position goes to the value of such a claim as opposed to whether the initial decision was discriminatory.

[190]Our analysis instead focusses however on the fact that the award of a CSCS payment cannot amount to a detriment or unfavourable treatment.

[191]The main cases relied upon were McAllister v Commissioners for HM Revenue & Customs [2022] and Trustees of Swansea University Pension and Assurance Scheme v Williams

[2019] 1 WLR 93

[192]The Supreme Court in Williams found that a similar award could not be considered unfavourable treatment. Per Lord Carwath (at §28): "... it is necessary first to identify the relevant 'treatment' to which the section is to be applied. In this case, it was the award of a pension. There was nothing intrinsically 'unfavourable' or disadvantageous about that ... Ms Crasnow's [counsel for Mr Williams] formulation, to my mind, depends on an artificial separation between the method of calculation and the award to which it gave rise. The only basis on which Mr Williams was entitled to any award at that time was by reason of his disabilities ... had he been able to work full time, the consequence would have been not an enhanced entitlement but no immediate right to a pension at all. It is unnecessary to say whether or not the award of the pension of that amount and in those circumstances was 'immensely favourable' ... It is enough that it was not in any sense 'unfavourable', nor (applying the approach of the Code) could it reasonably have been so regarded."

[193]This analysis was built upon in the EAT which concerned a s.15 claim in the context of a CSCS award following dismissal for unsatisfactory attendance (Mr McAllister was awarded 50% but contended that the true award should have been higher.) “83. The issue … is defined by the answers given to the questions identified by the Supreme Court in Williams: first, what is the relevant treatment? and, second, was it unfavourable to the claimant?84. In this case, the relevant treatment was the payment to the claimant under the CSCS. That was a payment made because the claimant had been dismissed for unsatisfactory attendance. The objective of the payment is clear: it is: "... to compensate the jobholder for loss of employment that is beyond their control; it is not to compensate them for poor performance or poor attendance when there is no underlying health condition."

85. In this case, the ET had found that the claimant's dismissal for unsatisfactory attendance was related to his disability. Although his previous absences had included periods of non-disability-related leave, the ET was clear that the reason for his dismissal was in consequence of his disability.

86. It was, moreover, the claimant's underlying health condition, arising from his disability, that gave rise to his entitlement under the CSCS. As such, the relevant treatment - being treated as entitled to a payment under the CSCS - was not unfavourable treatment; if anything, it was more favourable than would have been the position if the claimant had been dismissed for a reason other than his disability. It is possible, although unlikely, that an entitlement under the CSCS might arise in the case of somebody who would not meet the statutory definition of a disabled person for the purposes of the EqA, but that was not this case where, on the facts found by the ET, the claimant's entitlement arose solely by reason of his disability. That, in my judgement, puts this case on all fours with Williams and to conclude otherwise, as the ET did, would be to make the error of artificially separating out the entitlement to the award (the relevant treatment, which did not constitute a disadvantage), from the calculation of that award; the latter would not have arisen but for the initial entitlement.

[194]The case is almost the same as the EAT decision in McAllister given that it was also dealing with a CSCS payment. The heads of claim however are different – this is not just pleaded as a s15 claim but also as a claim of harassment and victimisation.

[195]The decision Ms Quinn was making was about conferring a benefit on the Claimant. Mr Chegwidden has asked us to find that ‘unwanted conduct’ as set out in s26 Equality Act 2010 ought to be analysed in the same way that s15 Equality Act ‘disadvantage’ was analysed in the McAllister case. He says that the award of the CSCS could not be unwanted conduct because the Claimant wanted the award just not at the level requested. We agree. The awarding of the benefit was not unwanted conduct. The Claimant objects to Ms Quinn’s calculation of that award and the way that she interpreted the criteria. In those circumstances we accept that we should not artificially separate out “the entitlement to the award from the calculation of that award” (McAllister).

[196]We therefore do not uphold this claim. Ms Quinn dismissing C on 31 January 2024

[197]It is accepted by the Respondent that this occurred, that it was unwanted conduct and that the Claimant’s dismissal was related to the Claimant’s disabilities as she was dismissed for her long term absence.

[198]However there must be something more for a dismissal to amount to harassment. As we set out below, we find that the dismissal was fair as per s98 ERA 1996, not an act of direct discrimination and although it arose out of the Claimant’s sickness absence, it was a proportionate means of achieving a legitimate aim.

[199]We accept that it may have had the proscribed effect as we do not doubt the Claimant’s evidence as to how she felt when she received the dismissal letter.

[200]Ms Quinn had no intention to create that effect. We must therefore consider whether it was objectively reasonable for it to have that effect.

[201]The manner in which the dismissal took place was not hostile or degrading. The Claimant asserts that it came out of the blue and was wholly unexpected. However that is not a reasonable interpretation of events. The Claimant knew and ought to have remembered that Ms Quinn was considering whether to dismiss her or not. The delay since March had been explained as Ms Quinn had been seriously unwell herself. The Claimant had been re-referred to OH, she had been offered the opportunity to meet with Ms Quinn, comment on her current situation and by the time of her dismissal she had been off sick continuously for 6 years. There was nothing about the manner or methodology or communications regarding the dismissal that, when considered objectively, reasonably created the proscribed environment. We therefore do not uphold the claim. Ms Jury-Onen dismissing C’s appeal against dismissal on 22 April 2024

[202]It is accepted by the Respondent that this occurred, that it was unwanted conduct and that the Claimant’s dismissal was related to the Claimant’s disabilities as she was dismissed for her long term absence and that Ms Jury-Onen’s decision that it was reasonable was also related to the Claimant’s disabilities as it was by reference to the Claimant’s absence and her inability to return to work.

[203]We accept that it may have had the proscribed effect as we do not doubt the Claimant’s evidence as to how she felt when the appeal was dismissed.

[204]Ms Jury-Onen had no intention to create that effect. Although we did not hear from her, the care and thoroughness with which she considered the Claimant’s appeal confirms that she had no intention to do anything other than consider the Claimant’s appeal fairly. We must therefore consider whether it was objectively reasonable for it to have that effect.

[205]We have found that Ms Jury-Onen properly considered all aspects of the Claimant’s appeal. Her methodology and communications regarding her decision, were, when considered objectively, entirely reasonable and could not reasonably be perceived as creating the proscribed environment. This is particularly the case given that she changed Ms Quinn’s decision and awarded her 75% of the CSCS amount as opposed to 25%. The Claimant has not complained about the fact that she was not awarded 100% and so we consider that she must accept Ms Jury-Onen’s decision in that regard. We accept that the Claimant was upset by the decision to dismiss her and for Ms Jury Onen not to overturn that decision, but that alone cannot be the basis for a claim for disability harassment in a long term sickness absence dismissal. We do not uphold this part of the Claimant’s claim. Direct Discrimination

[206]In accordance with our conclusions above, we have found that the none of the incidents relied upon as acts of discrimination occurred. Susan Quinn (“Ms Quinn”) threatening to terminate C’s employment or demote C on 6 and 12 April 2022

[207]Ms Quinn did not make any such threats. Please see paragraph 175 above. Deliberate delays by John Burleigh (“Mr Burleigh”) in providing information relating to C’s Civil Service Injury Benefit (“CSIB”) claim between 28 February 2022 to June 2022

[208]There were no deliberate delays by Mr Burleigh to provide information regarding the CSIB claim during this period. Please see paragraphs 177- 181 above. Failing to pay C the CSIB award earlier

[209]Please see paragraph 183 above. The delay was not caused by the Respondent’s delay. This was a delay caused by the systems in place and My CSP’s and HR’s delay in providing information and problems accessing information. In any event, the reason for the delay was not the Claimant’s ill health – the reason was the fractured system and ineffective support provided by My CSP and the HR IT systems. Anybody who had been off for the same period of time as the Claimant who also had a CSIB award approved but did not have any of the Claimant’s health conditions, would have been treated in the same way. On 20 October 2022, Mr Burleigh insisting that C provide him with a sick note despite her current one having not yet expired

[210]There was no such insistence by Mr Burleigh. Please see paragraphs 184-185 above. Mr Burleigh asked the Claimant to provide a sick note as soon as possible. The reason why he asked the Claimant for a sick note as soon as possible was that her sick leave was shortly coming to an end. Had he been speaking to anyone who had been off sick from work for the same period of time he would have treated them in exactly the same way. The reason for his treatment of the Claimant was not her disabilities it was the fact that she was absent and her current sick certificate was about to come to an end. A failure by management to respond to C’s requests for further information In particular, Ms Quinn failing to reply to C’s email dated 21 June 2023

[211]There was no request for further information by the Claimant relating to IHR. If there was such a request Ms Quinn did not understand it. Her reason for not giving the Claimant the information was that she did not know she had been asked for it. Furthermore she was not authorised to give any such financial advice in any event. Discrimination arising from disability (s.15 EQA)

[212]The Claimant relies on the same incidents under this head of claim as she does for her claims for direct discrimination.(i) Ms Quinn threatening to terminate C’s employment or demote C on 6 and 12 April 2022

(ii) deliberate delays by Mr Burleigh in providing information relating to C’s CSIB claim between 28 February 2022 to June 2022

(iii) Failing to pay C the CSIB award earlier

(iv) On 20 October 2022, Mr Burleigh insisting that C provide him with a sick note despite her current one having not yet expired

(v) A failure by management to respond to C’s requests for further 21 June 2023

[213]As already set out above, we have found, as questions of fact, that none of the above incidents (i – v) relied upon occurred as described. We do not repeat those conclusions here. We do not uphold these aspects of the Claimant’s claims.

[214]The Claimant also relies on the following incidents:a. Ms Quinn dismissed C on 31 January 2024;

b. Ms Quinn decided, in her letter dated 26 January 2024, to award C only 25% of compensation under the Civil Service Compensation Scheme; and

c. Sarah Jury-Onen dismissed C’s appeal against dismissal on 22 April 2024.

[215]We take the decision regarding the CSCS claim first. We do not repeat our analysis of the case law in full and rely upon that which is set out in the Harassment conclusions above. However, we note that the case of McAllister addresses a s15 Equality Act 2010 and we therefore consider that we are bound by it in relation to this head of claim in this case. The awarding of a benefit cannot be said to be unfavourable treatment and the calculation of that award ought not to be artificially separated from the fact of the award. Therefore this aspect of the Claimant’s claim fails.

[216]We then turn to the Claimant’s dismissal and Ms Jury-Onen’s decision to uphold the decision to dismiss. It is not disputed that the Claimant’s dismissal arose out of her long term sickness absence. The Respondent asserts that it was a proportionate means of achieving a legitimate aim namely the administration and implementation of the Respondent’s attendance policy.

[217]The Claimant had been continuously absent for 6 years. There was no possibility of her returning to work in the foreseeable future. There were no adjustments that could be made to facilitate a return to work in any capacity including a demotion. The fact that the Claimant wanted, at some point, to return to work does not diminish the fact that at the relevant time she could not do so and there was no prospect of her doing so in the near future. She did not disagree with the OH’s analysis of her health at the relevant time nor did she seek to detract from it during this hearing. Further the fact that the Respondent was not paying her at that time does not detract from the proportionality of dismissing the Claimant at this point in time. Cost alone is not always a decisive factor but part of a wider picture.

[218]In circumstances therefore where the Respondent needed to be able to permanently recruit to fill the Claimant’s position and where there was no alternative way of maintaining the Claimant’s employment, we consider that it was proportionate for the Respondent to dismiss the Claimant in order to implement its attendance policy. The Claimant had been absent for 6 years and showed no signs of being able to return.

[219]Ms Jury-Onen’s decision to uphold that decision was also a proportionate means of achieving the same aim. In coming to her decision she properly considered all points raised by the Claimant. However at no point did the Claimant suggest that she could return to work at that time, that there was any medical evidence that suggested she could return to any work in any capacity for the respondent in the foreseeable future.

[220]We therefore do not uphold the Claimant’s claim. Victimisation

[221]The parties agreed that that the Claimant had carried out the following protected acts:a. C submitting a grievance on 21 June 2018;

b. C’s first claim in the ET of 25 June 2018; and

c. C’s second claim form in the ET of 11 July 2022.

[222]We have therefore considered whether, as a result of those protected acts, the Claimant was subjected to any of the detriments she relies upon. Mr Burleigh deliberately failing to contact C on becoming her line manager between February to June 2022?

[223]We have assessed this part of the Claimant’s claim in considerable detail under the Harassment conclusions above. A majority of the Tribunal found that Mr Burleigh’s behaviour was not deliberate. Our primary finding therefore is that this incident did not occur as described and this claim cannot succeed.

[224]Mr Cronin did consider that Mr Burleigh’s actions were deliberate but he did not ascribe the delay as being caused by the Claimant’s grievances or claims.

[225]Mr Burleigh asserted that he had not known about the Claimant’s grievance or claims. We found that implausible and conclude, on balance, that he was informed during his handover meeting that the Claimant had previously brought a Tribunal claim and a grievance. We accept that he was unlikely to have read the claim or the grievance at the relevant time because he simply dipped in and out of the documents and the grievance dated 21 June 2018 and the first claim on 25 June 2018 were historic matters for which he did not need to read in detail nor did he have the time or inclination to do so. However he was aware that she had brought such a claim and grievance regarding issues surrounding her health and return to work, even if he was not aware of the detail.

[226]Nevertheless, despite that awareness, we do not find, on balance that the claims or the grievance were the reason he delayed. His delay was due to high workload, inexperience and ineptitude. Ms Quinn threatening to terminate C’s employment or demote C on 6 and 12 April 2022 Deliberate delays by Mr Burleigh in providing information relating to C’s CSIB claim between 28 February 2022 to June 2022 Failing to pay C the CSIB award earlier On 20 October 2022, Mr Burleigh insisting that C provide him with a sick note despite her current one having not yet expired A failure by management to respond to C’s requests for further information. In particular, Ms Quinn failing to reply to C’s email dated 21 June 2023.

[227]As already set out above, we have found that none of these incidents occurred as described. We therefore do not uphold these claims. Ms Quinn’s decision, set out in her letter dated 26 January 2024, to award C only 25% of compensation under the Civil Service Compensation Scheme?

[228]Our primary finding is that, as per the case of McAllister, it cannot be a detriment to award a benefit to an individual just as it cannot be unfavourable treatment. The level at which that benefit is awarded cannot be artificially separated out.

[229]However, we are less certain that this applies as easily to an allegation of victimisation. We accept that if Ms Quinn made a decision to award the Claimant less than Ms Quinn would have awarded someone else in the same circumstances who had not submitted a grievance or her Tribunal claims, then this could amount to an act victimisation. We do not consider that the case of McAllister precludes against such a construction. The decision to award a lower amount could, in our view, amount to a detriment. Although a comparator is not required for a victimisation claim, it is possible that a Claimant could, for example, demonstrate that they were awarded less in a CSCS payment than another disabled person in similar circumstances who had not made a protected disclosure. We believe that in those circumstances it may be possible for the fact of the award to be separated from the amount awarded.

[230]For the sake of completeness however we had no evidence whatsoever that Ms Quinn was motivated by the Claimant’s protected disclosures. Ms Quinn’s assessment was guided by the criteria she was provided with and she ran her decision past HR before informing the Claimant. Whilst we have commented above that we think that issues which arose from the Claimant’s illness such as her inability to properly engage with her managers may have informed the level of award, that is not the same as Ms Quinn deciding to award the Claimant less because she had brought either a grievance as far back as 2018 or either of her Tribunal claims. We accept Ms Quinn’s evidence that she applied the criteria as she understood them. Ms Quinn’s actions in no way indicated any level of animosity by her or the respondent as a whole (conscious or subconscious) towards the Claimant’s decision to raise a grievance six years earlier or her subsequent employment tribunal claims. Had those disclosures been a motivating factor we consider that the Claimant would have been dismissed far earlier and with far less consideration and with no CSCS award being made at all.

[231]In addition, it is relevant that at no point did the Claimant actually get paid the 25%. She was given permission to appeal the decision which she did. Ms Quinn dismissing C on 31 January 2024

[232]We do not consider that any of Ms Quinn’s actions in dealing with the Claimant were informed by the Claimant’s grievance or Tribunal claims. She had to make a decision about the employment of someone who had been on sick leave for six years. She knew throughout her dealings with the Claimant about her grievance and her first claim and yet at no point did she rush to make a decision nor did she do anything but follow a fair and measured process that involved seeking OH guidance and numerous attempts to engage with the Claimant. Had she been motivated by a desire to victimise the Claimant because of her grievance or either Tribunal claim, we consider that she would have acted very differently and almost certainly have dismissed the Claimant much sooner. There was no evidence before us that Ms Quinn treated the Claimant badly because of these disclosures. Ms Jury-Onen dismissing C’s appeal against dismissal on 22 April 2024

[233]The reason for Ms Jury-Onen’s dismissal against the Claimant’s appeal has been evidenced in her witness statement but also in the documents prepared at the time which allow us to attach some weight to Ms Jury-Onen’s witness statement in her absence. We conclude that there was no evidence to suggest that her decision to uphold Ms Quinn’s decision was in any way motivated by the protected disclosures.

[234]There is instead ample evidence that the reason that she upheld the decision was the fact that there was little other decision that an employer could make in circumstances where an employee had been off sick for so long, had no prospects of returning to work and where no adjustments could be made to accommodate any such return to work. The fairness and independence of Ms Jury-Onen’s approach is supported by the fact that she chose to overturn Ms Quinn’s decision regarding the level of CSCS payment.

[235]We do not uphold any aspect of the Claimant’s victimisation claims. Unfair Dismissal

[236]The Claimant was dismissed for a potentially fair reason under s 98(2) ERA 1996 namely capability.

[237]It was reasonable for the Respondent to treat this as a sufficient reason for dismissal given that the Claimant had been continuously absence for 6 years at the time of dismissal, the Claimant was unfit to work in any role whatsoever, the most recent OH report confirmed that the Claimant was not going to be able to work for the foreseeable future, there were no reasonable adjustments that could be made to enable the Claimant to return to work.

[238]The Claimant criticised the process that led to her dismissal. She had not had a recent meeting with Ms Quinn and said that the decision letter came out of the blue for her. It is correct that the last meeting with Ms Quinn had been in May 2023 though the Claimant had not provided the answers to the questions posed at that meeting until June 2023. Subsequently, Ms Quinn had been off sick for a considerable period following the last meeting and this had prevented her from making a decision. She had made attempts to ensure that the Claimant was updated in respect of her absence. Whilst this did not happen, the Claimant was updated when Ms Quinn returned to work.

[239]On 3 October 2023, shortly after her return to work Ms Quinn swiftly got in touch and offered to meet the Claimant again. The Claimant did not consent to that meeting so it did not take place. The Claimant was given the opportunity in that letter to provide any further relevant information she wanted to and she referred Ms Quinn to her previous correspondence thus indicating that nothing had changed. She did attend an OH appointment and an up to date report was provided in November 2023. That confirmed that the Claimant’s health remained the same as it had earlier in the year. We consider that these attempts to consult with the Claimant were reasonable in all the circumstances particularly given the difficulties that the Claimant had experienced at the meeting with Ms Quinn and the information and prognosis given in the November 2023 OH report. Had that OH report indicated an improvement then it may have been reasonable to attempt another meeting with the Claimant. However she remained unwell without any significant variation in her health.

[240]There was then a further delay from November 2023 until January 2024 whilst Ms Quinn obtained information regarding whether the Claimant was entitled to a CSCS payment. This meant that the Claimant was not dismissed until January 2024. However we accept that it was reasonable for Ms Quinn to consider that nothing had significantly changed between November 2023 and January 2024 in respect of the Claimant’s health given that the Claimant’s health and not changed in any marked way over the past six years, there had been no indication in the November 2023 OH report that her health may change and Ms Quinn checked to ensure that there was a sick certificate covering the Claimant’s absence in January 2024 and that the reason for the absence remained the same. Although the fit note expired the day after the dismissal, we do not accept that anything had changed and the Claimant has not been able to evidence that anything had changed in respect of her health in that time period.

[241]The Claimant has indicated that she considered it would be fairer for Ms Quinn or Mr Burleigh to have sat with her and considered how they could work together to ensure her return to work and that her length of employment was not properly considered. We believe that her length of employment was considered. However the length of employment cannot offset an absence of almost six years. At some point a decision must be made. Further, during evidence, the Claimant was unable to say what difference sitting down with her and considering how she could return to work would have changed matters. It was reasonable for Ms Quinn to rely upon the OH report which stated that there was no foreseeable possibility of the Claimant returning to work and no adjustments possible for the enabling a return to work.

[242]The Claimant has asserted before us that Ms Quinn ought to have considered whether the Claimant should have been asked whether she wished to apply for IHR. The Claimant had been told on numerous occasions that she ought to consider applying for IHR. She had not explored that option. This was not a failure on the part of the respondent.

[243]The Claimant has asserted that she ought to have been allowed to work her notice period. There is no evidence or suggestion that the Claimant’s health improved over the following 3 months or that it was going to at the point of dismissal. The Claimant had been continuously absent for 6 years at this point and all the medical evidence suggested that she would be unable to work for the foreseeable future – it was not unreasonable for them to dismiss her with immediate effect.

[244]The Claimant also now asserts that the fact that she had suffered an injury at work ought to have been considered as mitigation. The Claimant had been compensated for the injury through the CSIB payment and she was again on payment of the CSCS. The respondent clearly did consider the cause of the claimant’s injury. Although employers ought to be slower to dismiss in circumstances where the injury was caused at work, that does not mean that an employer cannot dismiss an employee who cannot do their job and has no prospect of being able to do that role in the foreseeable future.

[245]Ms Quinn set out the reasons for the Claimant’s dismissal in her letter dated 24 January 2024. We accept that she considered all of the documents she refers to in that letter. She sets out that she had considered whether alternative employment was possible within the employer including demotion but that it was not feasible given the OH advice regarding the Claimant’s health. and she gave the Claimant the right to appeal against that decision.

[246]In circumstances where the Claimant had been absent for so long it is clear that part of the respondent’s decision making process would have been whether they could continue to sustain the claimant’s absence. The fact that they were not paying her and therefore had no financial cost to them is not persuasive in these circumstances. The Respondent had the ongoing cost of the Claimant filling a post and not being able to permanently recruit to that role. The absence of addressing this in the dismissal letter does not mean it was not considered and we accept Ms Quinn’s evidence on this matter.

[247]We accept that Ms Jury-Onen properly and reasonably considered the Claimant’s appeal.

[248]In these circumstances, it was within the range of reasonable responses for the respondent to dismiss the claimant for capability. That decision was based on a reasonable investigation or consideration of the Claimant’s absence, health and alternatives to dismissal and followed a fair procedure.

[249]The Claimant’s claim for unfair dismissal is not upheld. Holiday pay

[250]At the beginning of the hearing, the Claimant was owed some outstanding holiday pay. By the conclusion of the hearing, the respondent had paid all monies owing to the Claimant to her. We accept that the Claimant had a valid claim for unpaid holiday pay at the time she presented her claim and at the beginning of the hearing before us.