[1]The Claimant was not unfairly dismissed and her complaint for unfair dismissal is not upheld. Case No. 2206172/2022[2]The Claimant’s claimThe Claimant’s claimss for direct disability discriminationfor direct disability discrimination, , discrimination arising discrimination arising from disability, disability related harassmentfrom disability, disability related harassment and failure to make reasonable and failure to make reasonable adjustmentsadjustments areare not wellnot well--founded and founded and areare dismissed.dismissed.
REASONS
[1]On 13 December, at a case management preliminary hearingOn 13 December, at a case management preliminary hearing before Judge before Judge Walker, the parties agreed the list of issuesWalker, the parties agreed the list of issues below.below. TheThe parties agreed at the parties agreed at the start of the hearing that the issues remain as those set out start of the hearing that the issues remain as those set out on 13 December on 13 December 2020. 2020.[2]The Respondent confirmed that it remained in dispute whetherThe Respondent confirmed that it remained in dispute whether the Claimant the Claimant waswas disabled by way of back pain within the meaning of the Equality Act 2010 disabled by way of back pain within the meaning of the Equality Act 2010 (“EqA 2010”) at all material times. (“EqA 2010”) at all material times.[3]The Claimant brings claims The Claimant brings claims of unfair dismissal, disability discriminationof unfair dismissal, disability discrimination, , disability related harassmentdisability related harassment and failure to make reasonable adjustments.and failure to make reasonable adjustments. The The Respondent denies all claimsRespondent denies all claims and contends that the Claimant wasand contends that the Claimant was fairly fairly dismissed dismissed for misconductfor misconduct.. LIST OF ISSUES LIST OF ISSUES Time limits Time limits
LIST OF ISSUES
[4]Given the date the claim form was presented and the dates of early conciliation, Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 12 May 2022 may not any complaint about something that happened before 12 May 2022 may not have been brought in time. have been brought in time.[5]Were the discrimination complaints made within the time limit in section 12Were the discrimination complaints made within the time limit in section 123 of 3 of the Equality Act 2010? The Tribunal will decide: the Equality Act 2010? The Tribunal will decide: Case No. 2206172/2022[6]Was the claim made to the Tribunal within three months (plus early conciliation Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates? extension) of the act to which the complaint relates?[7]If not, was there conduct extending over a period? If not, was there conduct extending over a period?[8]If so, was If so, was the claim made to the Tribunal within three months (plus early the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period? conciliation extension) of the end of that period?[9]If not, were the claims made within a further period that the Tribunal thinks is If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide: just and equitable? The Tribunal will decide:10.1 10.1 Why were thWhy were the complaints not made to the Tribunal in time? e complaints not made to the Tribunal in time?10.2 10.2 In any event, is it just and equitable in all the circumstances to extendIn any event, is it just and equitable in all the circumstances to extend time? time? Unfair dismissal Unfair dismissal[10]What was the reason or principal reason for dismissal? The respondent says What was the reason or principal reason for dismissal? The respondent says the reason was conduct. The Tribunal will need to decide whether the the reason was conduct. The Tribunal will need to decide whether the respondent genuinely believed the claimant had committed misconduct. respondent genuinely believed the claimant had committed misconduct.[11]IIf the reason was misconduct, did the respondent act reasonably in all the f the reason was misconduct, did the respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the claimant? circumstances in treating that as a sufficient reason to dismiss the claimant? The Tribunal will usually decide, in particular, whether: The Tribunal will usually decide, in particular, whether:12.1 12.1 there were reasonable grounds for that belithere were reasonable grounds for that belief; ef;12.2 12.2 at the time the belief was formed the respondent had carried out aat the time the belief was formed the respondent had carried out a reasonable investigation; reasonable investigation;12.3 12.3 the respondent otherwise acted in a procedurally fair manner; the respondent otherwise acted in a procedurally fair manner;12.4 12.4 dismissal was within the range of reasonable responses. dismissal was within the range of reasonable responses.[12]The claimant says the dismissal was unfair because: The claimant says the dismissal was unfair because:13.1 13.1 She was dismissed because of her behaviour on 24 April 2022, She was dismissed because of her behaviour on 24 April 2022, butbut Case No. 2206172/2022 her behaviour was because of her back pain, which was caused by thher behaviour was because of her back pain, which was caused by the e rrespondent’s instruction to remove the chickens from the raised ovenespondent’s instruction to remove the chickens from the raised oven on the previous day; and on the previous day; and13.2 13.2 She was only given seven days to appeal the dismissal, even though She was only given seven days to appeal the dismissal, even though the respondent knew that she was on holiday from 20 July to 6 Augustthe respondent knew that she was on holiday from 20 July to 6 August 2022. 2022. Remedy for unfair dismissal Remedy for unfair dismissal[13]The claimant wishes to be reinstated to her previous employment or reThe claimant wishes to be reinstated to her previous employment or re--engaged to comparable employment or other suitable employment. engaged to comparable employment or other suitable employment.[14]Should the Tribunal order reinstatement? The Tribunal will consider in particular Should the Tribunal order reinstatement? The Tribunal will consider in particular whether reinstatement is pwhether reinstatement is practicable and, if the claimant caused or contributedracticable and, if the claimant caused or contributed toto dismissal, whether it would be just. dismissal, whether it would be just.[15]Should the Tribunal order reShould the Tribunal order re--engagement? The Tribunal will consider in engagement? The Tribunal will consider in particular whether reparticular whether re--engagement is practicable and, if the claimant caused or engagement is practicable and, if the claimant caused or contributed to dismissal, whether it would be just. contributed to dismissal, whether it would be just.[16]What should the terms of the reWhat should the terms of the re--engagement order be?engagement order be?[17]If there is a compensatory award, how much should it be? The TribunaIf there is a compensatory award, how much should it be? The Tribunal will l will decide: decide:a. a. What financial losses has the dismissal caused the claimant? What financial losses has the dismissal caused the claimant?b. b. Has the claimant taken reasonable steps to replace her lost Has the claimant taken reasonable steps to replace her lostc. c. earnings, for example by looking for another job? earnings, for example by looking for another job?d. d. If not, for what period of loss should the claimant be compensateIf not, for what period of loss should the claimant be compensated? d?e. e. Is there a chance that the claimant would have been fairly dismissed Is there a chance that the claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason? anyway if a fair procedure had been followed, or for some other reason?f. f. If so, should the claimant’s compensation be reduced? By how much? If so, should the claimant’s compensation be reduced? By how much?g. g. Did the ACAS Code of Practice on Disciplinary and Grievance Procedures Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply? apply? Case No. 2206172/2022h. h. Did the respondent or the claimant unreasonably fail to comply with it? The Did the respondent or the claimant unreasonably fail to comply with it? The respondent says that the claimantrespondent says that the claimant unreasonably failed to comply with it as unreasonably failed to comply with it as she did not appeal the decision to dismiss. The claimant says that she was she did not appeal the decision to dismiss. The claimant says that she was only given seven days to appeal the dismissal, even though the only given seven days to appeal the dismissal, even though the respondent knew that she was on holiday from 20 July to 6 August 2022. respondent knew that she was on holiday from 20 July to 6 August 2022.i. i. If If so is it just and equitable to increase or decrease any award payable to so is it just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25%? the claimant? By what proportion, up to 25%?j. j. If the claimant was unfairly dismissed, did she cause or contribute to If the claimant was unfairly dismissed, did she cause or contribute to dismissal by blameworthy conduct? The respondent relies on the aldismissal by blameworthy conduct? The respondent relies on the alleged leged misconduct of 24 April 2022. misconduct of 24 April 2022.k. k. If so, would it be just and equitable to reduce the claimant’s compensatory If so, would it be just and equitable to reduce the claimant’s compensatory award? By what proportion? award? By what proportion?l. l. Does the statutory cap apply? Does the statutory cap apply?m. m. What basic award is payable to the claimant, if any? Would it be just and What basic award is payable to the claimant, if any? Would it be just and equitable equitable to reduce the basic award because of any conduct of the to reduce the basic award because of any conduct of the claimant before the dismissal? If so, to what extent? The respondent relies claimant before the dismissal? If so, to what extent? The respondent relies on the alleged misconduct of 24 April 2022. on the alleged misconduct of 24 April 2022. Disability Disability[18]Did the claimant have a disability as defined in section 6 of theDid the claimant have a disability as defined in section 6 of the EqualityEquality Act 2010 Act 2010 at the time of the events the claim is about? The Tribunal will decide: at the time of the events the claim is about? The Tribunal will decide:a. a. Did she have a physical impairment to her back? Did she have a physical impairment to her back?b. b. Did it have a substantial adverse effect on her ability to carry out dayDid it have a substantial adverse effect on her ability to carry out day--toto--day activities? day activities?c. c. If not, did the claimant have medical treatment, including medication, or If not, did the claimant have medical treatment, including medication, or take other measures to treat or correct the impairment? take other measures to treat or correct the impairment?d. d. Would the impairment have had a Would the impairment have had a substantial adverse effect on her ability substantial adverse effect on her ability to carry out dayto carry out day--toto--day activities without the treatment or other measures?day activities without the treatment or other measures?e. e. Were the effects of the impairment longWere the effects of the impairment long--term? The Tribunal will decide: did term? The Tribunal will decide: did they last at least 12 months, or were they likely to last at least 12 months? they last at least 12 months, or were they likely to last at least 12 months? if not, were they likely to recur? if not, were they likely to recur? Case No. 2206172/2022 Direct disability discrimination (Equality Act 2010 section 13) Direct disability discrimination (Equality Act 2010 section 13)[19]On 24 April 2022 did James McIntosh: On 24 April 2022 did James McIntosh:a. a. Call the police and the respondent’s security staff? Call the police and the respondent’s security staff?b. b. Describe the claimant as a “crazy person”? Describe the claimant as a “crazy person”?c. c. State that the claimant needed a psychiatrist? State that the claimant needed a psychiatrist?d. d. State that the claimant was suicidal? State that the claimant was suicidal?e. e. State that the claimant wouldState that the claimant would kill everyone around her? kill everyone around her?[20]Was that less favourable treatment? Was that less favourable treatment?[21]The Tribunal will decide whether the claimant was treated worse than someone The Tribunal will decide whether the claimant was treated worse than someone else was treated. There must be no material difference between their else was treated. There must be no material difference between their circumstances and the claimant’s. circumstances and the claimant’s.[22]If there was nobody in the same circumstances as the claimant, the Tribunal will If there was nobody in the same circumstances as the claimant, the Tribunal will decide whether she was treated worse than someone else would have been decide whether she was treated worse than someone else would have been treated. treated.[23]The claimant has not named anyone in particular who she says was treated The claimant has not named anyone in particular who she says was treated better than she wasbetter than she was. .[24]If so, was it because of disability? If so, was it because of disability? Discrimination arising from disability (Equality Act 2010 section 15) Discrimination arising from disability (Equality Act 2010 section 15)[25]On 24 April 2022 did James McIntosh: On 24 April 2022 did James McIntosh:a. a. Call the police and the respondent’s security staff? Call the police and the respondent’s security staff?b. b. Describe the claimant as a “crazy person”? Describe the claimant as a “crazy person”?c. c. State that the claimant needed a psychiatrist? State that the claimant needed a psychiatrist?d. d. State that the claimant was suicidal? State that the claimant was suicidal?e. e. State that the claimant would kill everyone around her? State that the claimant would kill everyone around her? Case No. 2206172/2022[26]On 18 July 2022 the respondent dismissed the claimant. On 18 July 2022 the respondent dismissed the claimant.[27]Did the following things arise in consequence of the claimant’s disability: Did the following things arise in consequence of the claimant’s disability:a. a. In respect of the detriment of Mr McIntosh’s actions on 24 April 2022: the In respect of the detriment of Mr McIntosh’s actions on 24 April 2022: the claimant’s need for an adjustment to her dutieclaimant’s need for an adjustment to her duties to remove the requirement s to remove the requirement for her to take chickens out of the raised oven; for her to take chickens out of the raised oven;b. b. In respect of the detriment of dismissal: the claimant’s conduct on 24 April In respect of the detriment of dismissal: the claimant’s conduct on 24 April 2022 (including her screaming and crying). 2022 (including her screaming and crying).[28]Was the unfavourable treatment because of any of those Was the unfavourable treatment because of any of those things? things?[29]Did Mr McIntosh do the things at paragraph 69.1 above because he was trying Did Mr McIntosh do the things at paragraph 69.1 above because he was trying to cover up the fact that he had failed to adjust her duties and had made the to cover up the fact that he had failed to adjust her duties and had made the claimant take the chickens out of the raised oven the previous day? claimant take the chickens out of the raised oven the previous day?[30]Did the respondent dismiss the claimant because of her conduct on 24 April Did the respondent dismiss the claimant because of her conduct on 24 April 2022 (including her screaming and crying)? 2022 (including her screaming and crying)?[31]Was the treatment a proportionate means of achieving a legitimate aim? The Was the treatment a proportionate means of achieving a legitimate aim? The respondent says that its aims wererespondent says that its aims were::(a) (a) Ensuring a safe and appropriate working environment for employees and Ensuring a safe and appropriate working environment for employees and others others(b) Protecting employees and others from violence or threats of violence (b) Protecting employees and others from violence or threats of violence(c) Ensuring employees maintain standards of conduct (c) Ensuring employees maintain standards of conduct(d) Protecting reputation, brand and business int (d) Protecting reputation, brand and business interests erests(e) Ensuring employees aren’t subjected to unnecessary health risks (e) Ensuring employees aren’t subjected to unnecessary health risks(f) Ensuring safety in the workplace (f) Ensuring safety in the workplace[32]The Tribunal will decide in particular: The Tribunal will decide in particular: Case No. 2206172/2022a. a. was the treatment an appropriate and reasonably necessary way to was the treatment an appropriate and reasonably necessary way to achieve those aims; achieve those aims;b. b. could something less discriminatory have been done instead; could something less discriminatory have been done instead;c. c. how should the needs of the claimant and the respondent be balanced? how should the needs of the claimant and the respondent be balanced?d. d. Did the respondent know or could it reaDid the respondent know or could it reasonably have been expected to sonably have been expected to know that the claimant had the disability? From what date? know that the claimant had the disability? From what date? Reasonable Adjustments (Equality Act 2010 sections 20 & 21) Reasonable Adjustments (Equality Act 2010 sections 20 & 21)[33]Did the respondent know or could it reasonably have been expected to know Did the respondent know or could it reasonably have been expected to know that the claimant had the disthat the claimant had the disability? From what date? ability? From what date?[34]A “PCP” is a provision, criterion or practice. Did the respondent have the A “PCP” is a provision, criterion or practice. Did the respondent have the following PCP: the requirement to remove chickens from the raised oven. following PCP: the requirement to remove chickens from the raised oven.[35]Did the PCP put the claimant at a substantial disadvantage compared to Did the PCP put the claimant at a substantial disadvantage compared to someone wsomeone without the claimant’s disability, in that performing this duty would ithout the claimant’s disability, in that performing this duty would place her at a risk of back pain? place her at a risk of back pain?[36]Did the respondent know or could it reasonably have been expected to know Did the respondent know or could it reasonably have been expected to know that the claimant was likely to be placed at the disadvantage? that the claimant was likely to be placed at the disadvantage?[37]What steps could have been taken to avoid the disadvantage? The claimant What steps could have been taken to avoid the disadvantage? The claimant says that the respondent should have removed the requirement for her to says that the respondent should have removed the requirement for her to perform this duty at all times, including on 23 April 2022. perform this duty at all times, including on 23 April 2022.[38]Was it reasonable for the respondent to have to Was it reasonable for the respondent to have to take those steps? take those steps?[39]Did the respondent fail to take those steps? Did the respondent fail to take those steps? Harassment related to disability (Equality Act 2010 section 26) Harassment related to disability (Equality Act 2010 section 26)[40]On 24 April 2022 did James McIntosh: On 24 April 2022 did James McIntosh: Case No. 2206172/2022a. a. Call the police and the respondent’s security staff? Call the police and the respondent’s security staff?b. b. Describe the claimant as a “crazy person”? Describe the claimant as a “crazy person”?c. c. State that the claimant needed a psychiatrist? State that the claimant needed a psychiatrist?d. d. State that the claimant was suicidal? State that the claimant was suicidal?e. e. State that the claimant would kill everyone around her? State that the claimant would kill everyone around her?[41]If so, was that unwanted conduct? If so, was that unwanted conduct?[42]Did it relate to disability? Specifically: Did it relate to disability? Specifically:a. a. Did it relate to the claimant’s alleged disability because the reason why Mr Did it relate to the claimant’s alleged disability because the reason why Mr McIntosh did these things was to cover the fact that he had not adjusted McIntosh did these things was to cover the fact that he had not adjusted the claimant’s duties thethe claimant’s duties the previous day, which was an adjustment to previous day, which was an adjustment to accommodate her disability? accommodate her disability?b. b. Did it relate to a disability of a mental impairment? The claimant does not Did it relate to a disability of a mental impairment? The claimant does not say that she was disabled by virtue of a mental impairment. say that she was disabled by virtue of a mental impairment.[43]Did the conduct have the purpose of violatingDid the conduct have the purpose of violating the claimant’s dignity or creating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the an intimidating, hostile, degrading, humiliating or offensive environment for the claimant? claimant?[44]If not, did it have that effect? The Tribunal will take into account the claimant’s If not, did it have that effect? The Tribunal will take into account the claimant’s perception, the other circumstances of theperception, the other circumstances of the case and whether it is reasonable for case and whether it is reasonable for the conduct to have that effect. the conduct to have that effect. Remedy for discrimination Remedy for discrimination[45]Should the Tribunal make a recommendation that the respondent take steps to Should the Tribunal make a recommendation that the respondent take steps to reduce any adverse effect on the claimant? What should it recommend?reduce any adverse effect on the claimant? What should it recommend?[46]What financial losses has the discrimination caused the claimant?What financial losses has the discrimination caused the claimant? Case No. 2206172/2022[47]Has the claimant taken reasonable steps to replace lost earnings, for example Has the claimant taken reasonable steps to replace lost earnings, for example by looking for another job? by looking for another job?[48]If not, for what period of loss should the claimant be compensated? If not, for what period of loss should the claimant be compensated?[49]What injurWhat injury to feelings has the discrimination caused the claimant and how y to feelings has the discrimination caused the claimant and how much compensation should be awarded for that? much compensation should be awarded for that?[50]Has the discrimination caused the claimant personal injury and how much Has the discrimination caused the claimant personal injury and how much compensation should be awarded for that? compensation should be awarded for that?[51]Is there a chance that the cIs there a chance that the claimant’s employment would have ended in any laimant’s employment would have ended in any event? Should their compensation be reduced as a result? event? Should their compensation be reduced as a result?[52]Did the ACAS Code of Practice on Disciplinary and Grievance Procedures Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply? apply?[53]Did the respondent or the claimant unreasonably fail to comply with it? Did the respondent or the claimant unreasonably fail to comply with it? The The respondent says that the claimant unreasonably failed to comply with it as she respondent says that the claimant unreasonably failed to comply with it as she did not appeal the decision to dismiss. did not appeal the decision to dismiss.[54]If so is it just and equitable to increase or decrease any award payableIf so is it just and equitable to increase or decrease any award payable to the to the claimant? claimant?[55]By what proportion, up to 25%? By what proportion, up to 25%?[56]Should interest be awarded? How much?Should interest be awarded? How much? Procedure, documents and evidence heard Procedure, documents and evidence heard[57]The Tribunal heard evidence from the Claimant and Mr Rosa on her behalf. The The Tribunal heard evidence from the Claimant and Mr Rosa on her behalf. The Tribunal had the written evidence of Mr Farooq, he did not attend to give Tribunal had the written evidence of Mr Farooq, he did not attend to give Case No. 2206172/2022 evidence and the Respondent did not seek to challenge the content of his evidence and the Respondent did not seek to challenge the content of his witness statement.witness statement.[58]The The Tribunal heard the evidence of the following witnesses on behalf of the Tribunal heard the evidence of the following witnesses on behalf of the Respondent:Respondent: Mr James McIntosh, Deputy Branch Manager Mr James McIntosh, Deputy Branch Manager Mr Yosef Abai, Team Manager & dismissing officer Mr Yosef Abai, Team Manager & dismissing officer Mr David Mason, Team Manager & discipline investigator Mr David Mason, Team Manager & discipline investigator Mr Aslam Miah, Team Manage Mr Aslam Miah, Team Manager & Claimant’s line Managerr & Claimant’s line Manager[59]There was a tribunal bundle of approximately 445 pages and an agreed list of There was a tribunal bundle of approximately 445 pages and an agreed list of issues. On 6 September 2023 both parties disclosed some additional issues. On 6 September 2023 both parties disclosed some additional documents; the Claimant documents; the Claimant produced approximately 20 pages of documents, produced approximately 20 pages of documents, relating to mrelating to medical notes, and the Respondent produced 4 pages of WhatsApp edical notes, and the Respondent produced 4 pages of WhatsApp group messages. Those documents were adduced and allowed in by the group messages. Those documents were adduced and allowed in by the Tribunal on the morning of 7 September 2023. Tribunal on the morning of 7 September 2023. WeWe informed the parties that informed the parties that unless we were taken to a document in the bundle we wunless we were taken to a document in the bundle we would not read it. Both ould not read it. Both parties provided written closing submissions.parties provided written closing submissions. FINDINGS OF FACT
FINDINGS OF FACT
[60]Having considered all the evidence, both oral and documentary, Having considered all the evidence, both oral and documentary, wewe made the made the following findings of fact. These findings are not intended to cover every point following findings of fact. These findings are not intended to cover every point of evidenceof evidence given but are a summary of the principal findings that given but are a summary of the principal findings that wewe made made from which from which wewe drew drew ourour conclusions. conclusions. Reliability of Evidence Reliability of Evidence[61]At the outset of our At the outset of our fact findingfact finding, we fe, we felt itlt it important to address the issue of important to address the issue of reliability of witness evidence as this has had a bearing on our fact finding and reliability of witness evidence as this has had a bearing on our fact finding and the inferences we have drawn from those facts. We have referred to such the inferences we have drawn from those facts. We have referred to such matters in our fact finding but in terms of general comment, we foumatters in our fact finding but in terms of general comment, we found the nd the Claimant’s evidence unreliable on a number of key matters but most strikingly it Claimant’s evidence unreliable on a number of key matters but most strikingly it Case No. 2206172/2022 was her admission under cross was her admission under cross--examination that Mr McIntosh did not say to her examination that Mr McIntosh did not say to her that she was crazy, or that she was suicidalthat she was crazy, or that she was suicidal,, or that she would kill everyone or that she would kill everyone around her. around her. These are very serious allegations against Mr McIntosh and formed These are very serious allegations against Mr McIntosh and formed a key aspect of the Claimant’s case cutting across all her individual claims and a key aspect of the Claimant’s case cutting across all her individual claims and as Ms Nicholls put it in her submission to us the Claimant accepted with ease as Ms Nicholls put it in her submission to us the Claimant accepted with ease that Mr McIntosh had not said tthat Mr McIntosh had not said these things to her. We accept that some of this hese things to her. We accept that some of this may be due to the Claimant’s may be due to the Claimant’s eenglish language nglish language difficulties,difficulties, but we do not accept but we do not accept that this entirely explains away the changes in position in terms of her that this entirely explains away the changes in position in terms of her evidence. evidence.[62]We We agree with the Respondent’s submissionsagree with the Respondent’s submissions that at times the Claimant has that at times the Claimant has exaggerated her claims. A clear example of this is in respect of what was said exaggerated her claims. A clear example of this is in respect of what was said to Mr Rosa by the police on 24 April 2022. Mr Rosa’s second witness statement to Mr Rosa by the police on 24 April 2022. Mr Rosa’s second witness statement states states “they [the Police] said they have been told that Natalya is “they [the Police] said they have been told that Natalya is missing from missing from work” and “they [the Police] have been told by the manager at Waitrose work” and “they [the Police] have been told by the manager at Waitrose that that Natalya has mental health issues and wanted to commit suicide”. Mr Rosa Natalya has mental health issues and wanted to commit suicide”. Mr Rosa confirmed that the police did not say that confirmed that the police did not say that “they have been told of a missing “they have been told of a missing mentally dangerousmentally dangerous person who can cause harm to herself and others around person who can cause harm to herself and others around her”her”, as set out at page 4 of the Claimant’s witness statement, as set out at page 4 of the Claimant’s witness statement..[63]We are also concerned about the reliability of Mr Rosa’s evidence, in particular We are also concerned about the reliability of Mr Rosa’s evidence, in particular when asked in crosswhen asked in cross--examination whether he wrote examination whether he wrote his own statements, rather his own statements, rather than clearly responding in the affirmative, he responded that he did ‘to the best than clearly responding in the affirmative, he responded that he did ‘to the best of his knowledge’. We note the similarities of style and use of language in his of his knowledge’. We note the similarities of style and use of language in his witness statement and that of the Claimant’s, which in our opinionwitness statement and that of the Claimant’s, which in our opinion tends to tends to support the proposition that the Claimant either wrote Mr Rosa’s witness support the proposition that the Claimant either wrote Mr Rosa’s witness statement or heavily contributed to the content.statement or heavily contributed to the content.[64]Notwithstanding the above, we have examined each individual allegation Notwithstanding the above, we have examined each individual allegation carefully in order to reach a view as to whether on carefully in order to reach a view as to whether on the balance of probabilities it the balance of probabilities it occurred and what it signified. We were alive to the possibility that, for example, occurred and what it signified. We were alive to the possibility that, for example, the claimant may have misheard, misunderstood or misinterpreted comments the claimant may have misheard, misunderstood or misinterpreted comments and behaviour.and behaviour. We make further comment on this in our conclusions, We make further comment on this in our conclusions, in in Case No. 2206172/2022 particular around particular around the Claimantthe Claimant’’s s objections to being referred to as someone objections to being referred to as someone experiencing mental health difficulties.experiencing mental health difficulties.[65]Overall,Overall, we found the Respondent’s witnesses to be consistent and reliable in we found the Respondent’s witnesses to be consistent and reliable in their evidence. We agree with the Claimant’s submissions their evidence. We agree with the Claimant’s submissions that there were a that there were a number of occasions where the Respondent’s witnesses,number of occasions where the Respondent’s witnesses, particularly Mr particularly Mr McIntosh and Mr Miah were unable to recollect events. However, we find that McIntosh and Mr Miah were unable to recollect events. However, we find that that this was particularly prevalent on occasions when the Claimant asked them that this was particularly prevalent on occasions when the Claimant asked them to recollectto recollect matters such as the copying of her fit notes or absences from over a matters such as the copying of her fit notes or absences from over a few years ago. It is understandable that witnesses would struggle to recall few years ago. It is understandable that witnesses would struggle to recall eventsevents dating back so longdating back so long, which may have been of minor , which may have been of minor significancesignificance to them to them at the time, for example Mr Miahat the time, for example Mr Miah waswas asked to recall a period of absence the asked to recall a period of absence the Claimant had in July 2021. On the main evidenceClaimant had in July 2021. On the main evidence, we f, we foundound the Respondentthe Respondent’’s s witnesses oral evidence was consistent with their written evidence.witnesses oral evidence was consistent with their written evidence. Background/General Background/General[66]The Respondent's organisation is known as the John Lewis Partnership and its The Respondent's organisation is known as the John Lewis Partnership and its employees are referred to as "Partners". The Respondent has two trading employees are referred to as "Partners". The Respondent has two trading divisions,divisions, namely its John Lewis & Partners department stores and its Waitrose namely its John Lewis & Partners department stores and its Waitrose & Partners supermarkets. The& Partners supermarkets. The business is run on cobusiness is run on co--ownership principles and ownership principles and all Partners areall Partners are eligible to participate in a share of the Respondent's annual eligible to participate in a share of the Respondent's annual profits.profits.[67]The Claimant was employed by the Respondent from 31 October 2016 until 18 The Claimant was employed by the Respondent from 31 October 2016 until 18 JulyJuly 2022 when she was dismissed on the groun2022 when she was dismissed on the grounds of misconduct. The ds of misconduct. The Claimant worked at the Waitrose & Partners store in Barbican, London (the Claimant worked at the Waitrose & Partners store in Barbican, London (the "Branch"). The Claimant's role was Supermarket Assistant."Branch"). The Claimant's role was Supermarket Assistant.[68]The Claimant's employment was subject to the Respondent's rules, policies The Claimant's employment was subject to the Respondent's rules, policies and procedures. The relevant section of the Respondent's handbook confirms and procedures. The relevant section of the Respondent's handbook confirms that that "in certain cases, your conduct may be considered so serious that you may "in certain cases, your conduct may be considered so serious that you may be dismissedbe dismissed summarily…summarily……………whewhether or not you have been warned about ther or not you have been warned about Case No. 2206172/2022 such conduct on a previous such conduct on a previous occasion and regardless of your performance or occasion and regardless of your performance or length of service". The handbooklength of service". The handbook contains examples of serious misconduct contains examples of serious misconduct which can result in summary dismissalwhich can result in summary dismissal. . These examples include "seriousThese examples include "serious breach of Partnership rules and procedures".breach of Partnership rules and procedures".[69]The Respondent's handbookThe Respondent's handbook furtherfurther states that states that "Partners are"Partners are people of people of outstanding honesty and integrity. Our commitment to integrity is at the coreoutstanding honesty and integrity. Our commitment to integrity is at the core of of our coour co--owned business: we are honest with each other and iowned business: we are honest with each other and in all our businessn all our business relationships. Behaviours that fall short of our high standards are not tolerated relationships. Behaviours that fall short of our high standards are not tolerated and mayand may result in disciplinary action, which could include you losing your job."result in disciplinary action, which could include you losing your job." It It also states also states "Make"Make sure that your own conduct does not cause sure that your own conduct does not cause offence to other offence to other Partners, customers,Partners, customers, suppliers or anyone else who you have contact with suppliers or anyone else who you have contact with during the working day. We treatduring the working day. We treat bullying, harassment or any offensive conduct bullying, harassment or any offensive conduct of a written, spoken, physical or visualof a written, spoken, physical or visual nature as a disciplinary matter". nature as a disciplinary matter".[70]Further, tFurther, the standards of behaviour that are required ofhe standards of behaviour that are required of Partners are set out in Partners are set out in the Respondent's Commitments which include a commitment tothe Respondent's Commitments which include a commitment to ““Build Build relationships powered by our principles'. This requires Partners to "respect ourrelationships powered by our principles'. This requires Partners to "respect our customers, other Partners and our suppcustomers, other Partners and our suppliers, treating them fairly, with honesty liers, treating them fairly, with honesty andand courtesy". It also requires Partners to "take responsibility for [their] courtesy". It also requires Partners to "take responsibility for [their] decisions" and to "bedecisions" and to "be honest".honest". Events of 23 April 2022 Events of 23 April 2022[71]On Saturday 23 April 2022, the Claimant was working on the meat and fish On Saturday 23 April 2022, the Claimant was working on the meat and fish counter of the branch. This was an area that she was trained on as well as the counter of the branch. This was an area that she was trained on as well as the bakery section referred to as “bake off”. James McIntoshbakery section referred to as “bake off”. James McIntosh,, deputydeputy branch branch managermanager,, was on duty as the branch manager on that day. was on duty as the branch manager on that day.[72]One of the tasks required of staff working oOne of the tasks required of staff working on the meat and fish counter is to n the meat and fish counter is to deal with the rotisserie chickens, which are cooked on skewers in raised ovens deal with the rotisserie chickens, which are cooked on skewers in raised ovens behind the counter. When the chickens have completed their initial cooking behind the counter. When the chickens have completed their initial cooking time it is necessary for their temperature to be tested to ensure ttime it is necessary for their temperature to be tested to ensure they are fully hey are fully cooked. If they are fully cooked, it is then necessary for the chickens to be cooked. If they are fully cooked, it is then necessary for the chickens to be Case No. 2206172/2022 transferred to the counter to be bagged and dated. This involves removing the transferred to the counter to be bagged and dated. This involves removing the whole chickens on skewers out of the oven and to the preparation area. whole chickens on skewers out of the oven and to the preparation area.[73]On this date, the claimant alleges that Mr McIntosh ordered her to remove the On this date, the claimant alleges that Mr McIntosh ordered her to remove the chickens from the ovens. She alleges that she approached Mr McIntosh and chickens from the ovens. She alleges that she approached Mr McIntosh and reminded him that she had been removed from all heavy lifting and asked for reminded him that she had been removed from all heavy lifting and asked for another Partner named Thomasanother Partner named Thomas to assist her. She alleges Mr McIntosh refused to assist her. She alleges Mr McIntosh refused her request and advised her that Thomas was busy with another task. The her request and advised her that Thomas was busy with another task. The Claimant says she was surprised by Mr McIntosh’s ‘order’ as she had been Claimant says she was surprised by Mr McIntosh’s ‘order’ as she had been removed from all heavy lifting for a period of around 6 monthremoved from all heavy lifting for a period of around 6 months due to her bad s due to her bad back. She claims after her request was back. She claims after her request was refused,refused, she attempted to remove the she attempted to remove the chickens but felt a sharp pain in her shoulder and stopped. She states that she chickens but felt a sharp pain in her shoulder and stopped. She states that she then went to the then went to the bbakeake--offoff countercounter to ask Thomas to help and he came to take to ask Thomas to help and he came to take the cthe chickens out but by that point it was too late as she had already damaged hickens out but by that point it was too late as she had already damaged her shoulder. She states she managed to continue work but finished work in her shoulder. She states she managed to continue work but finished work in pain and tears, she was in pain all evening but felt she had no choice but to go pain and tears, she was in pain all evening but felt she had no choice but to go into work the next day as sinto work the next day as she had been informed by her manager in February he had been informed by her manager in February that if she had another sick day that she could be fired.that if she had another sick day that she could be fired.[74]In his evidence to the Tribunal, Mr McIntosh advised that he could not recall In his evidence to the Tribunal, Mr McIntosh advised that he could not recall asking the Claimant to remove the chickens on this date but he is awareasking the Claimant to remove the chickens on this date but he is aware that he that he confirmed that he had done so when asked by David Masonconfirmed that he had done so when asked by David Mason, , Team ManagerTeam Manager andand Discipline Investigation OfficerDiscipline Investigation Officer,, as part of the discipline investigation. He as part of the discipline investigation. He stated thatstated that such a request would not be unusualsuch a request would not be unusual asas in any given shift he makes in any given shift he makes many requests of Partners, many requests of Partners, aas is his responsibility as branch manager. Mr s is his responsibility as branch manager. Mr McIntosh denieMcIntosh deniess refusing the Claimant help and stated that had she asked him refusing the Claimant help and stated that had she asked him for help he would have found another partner to help for help he would have found another partner to help her,her, or he would have or he would have helped her himself. Mr McIntosh states he did not see the Claimant take the helped her himself. Mr McIntosh states he did not see the Claimant take the chickens out and that she did not tell him that she had hurt her back whilst chickens out and that she did not tell him that she had hurt her back whilst attempting to take the chickens out. Mr McIntosh confirmed in oral evidence to attempting to take the chickens out. Mr McIntosh confirmed in oral evidence to the Tribunal that he wthe Tribunal that he was as previously previously aware of the Claimant’s back pain through aware of the Claimant’s back pain through the managers WhatsApp group conversations. the managers WhatsApp group conversations. Case No. 2206172/2022[75]On this particular issue, we prefer the evidence of Mr On this particular issue, we prefer the evidence of Mr McIntosh,McIntosh, and we find and we find that whilst he did request the Claimant take the chickens out of the oven, shethat whilst he did request the Claimant take the chickens out of the oven, she did not ask him for assistance. We find it implausible that did not ask him for assistance. We find it implausible that the Claimantthe Claimant would would have attempted to remove chickens knowing that this may cause her to suffer have attempted to remove chickens knowing that this may cause her to suffer back pain. She states that she did this as Mr Mcintosh refused her request for back pain. She states that she did this as Mr Mcintosh refused her request for Thomas to assist Thomas to assist herher. Despite this, she does ultimately ask Thomas to assist . Despite this, she does ultimately ask Thomas to assist her,her, and and hehe ultimately ultimately removeremovess the chickens. It is also implausible that she does the chickens. It is also implausible that she does not mention anything to Mr McIntoshnot mention anything to Mr McIntosh or anyone elseor anyone else at the time about hurting at the time about hurting her back, yet when he asks her how she her back, yet when he asks her how she is the following morning, she claims to is the following morning, she claims to immediately inform him that she has been suffering all night from the pain from immediately inform him that she has been suffering all night from the pain from yesterday.yesterday. We comment further on this in thWe comment further on this in the events of 24 April 2022 below.e events of 24 April 2022 below. Events of 24 April 2022 Events of 24 April 2022[76]The The majority of issues in majority of issues in this case concern events that unfolded on 24 April this case concern events that unfolded on 24 April 20222022. . On On this daythis day, Mr McIntosh was, Mr McIntosh was the only manager the only manager for the branchfor the branch, which , which was normal for a Sunday.was normal for a Sunday. The Claimant was also at work The Claimant was also at work on the meat and fish on the meat and fish counter counter and Mr McIntosh asked her how she wasand Mr McIntosh asked her how she was. . There is no dispute between There is no dispute between the parties that tthe parties that the Claimant informed him that he Claimant informed him that sshe had back painhe had back pain and that she and that she had taken her medicationhad taken her medication and expected to feel better when this started workingand expected to feel better when this started working. . HHoweverowever,, the Claimant contends that she told Mr McIntosh at this poithe Claimant contends that she told Mr McIntosh at this point that nt that she she had been suffering with back pain all night from yesterday,had been suffering with back pain all night from yesterday, whereas Mr whereas Mr McIntosh’s evidence McIntosh’s evidence is that she is that she did not mention anydid not mention anything aboutthing about hurting her hurting her back the day before.back the day before.[77]We accept that Mr McIntosh’s question to the Claimant asking how she We accept that Mr McIntosh’s question to the Claimant asking how she waswas, , was a generalwas a general,, polite polite questionquestion and one that he would ask all Partners. and one that he would ask all Partners. This is This is also supported by the fact that aalso supported by the fact that at this staget this stage and by the Claimant’s own and by the Claimant’s own admissionsadmissions,, hhe was not aware e was not aware of the Claimant alleging that she had hurt her of the Claimant alleging that she had hurt her back the day back the day before from attempting to lift chickensbefore from attempting to lift chickens.. WWe do not accepte do not accept that that the the Claimant informed him at this pointClaimant informed him at this point, , having been so reluctant to mention having been so reluctant to mention anything from the day beforeanything from the day before, we find it implausible that, we find it implausible that the Claimant would the Claimant would suddenly decide to mention suddenly decide to mention somsomething noething now.w. Case No. 2206172/2022[78]At some pointAt some point after starting work,after starting work, Mr Farhan FarooqMr Farhan Farooq, a Partner, a Partner,, found the found the Claimant sitting on the floor and cryingClaimant sitting on the floor and crying. He asked her what had . He asked her what had happened,happened, and and she told him that heshe told him that herr back was hurtingback was hurting. Mr Farooq then. Mr Farooq then informed Mr Mcintoshinformed Mr Mcintosh that the Claimant was crying on thethat the Claimant was crying on the floor behind the meat and fish counter due floor behind the meat and fish counter due to her back pain.to her back pain. In In Mr Farooq’sMr Farooq’s written evidence to the Tribunal, written evidence to the Tribunal, tthere is no here is no mention of the Claimant advising mention of the Claimant advising himhim that she had injured her back the day that she had injured her back the day beforebefore or that Mr McIntosh had ordered her to remove chickensor that Mr McIntosh had ordered her to remove chickens causing the causing the injuryinjury..[79]Mr McIntosh then went to check on the ClaimantMr McIntosh then went to check on the Claimant and suggested that the and suggested that the Claimant move to the branch Claimant move to the branch mmanager’s office, asking Hannan Moanager’s office, asking Hannan Mohammed, hammed, supermarket assistant, to accompany hersupermarket assistant, to accompany her. . There is There is no disputeno dispute that the that the Claimant moved from the shop floor and ended up sitting on the floor of the Claimant moved from the shop floor and ended up sitting on the floor of the ladies’ladies’ changing rooms and that she was cryingchanging rooms and that she was crying, , shouting, and screaming. shouting, and screaming. The The Claimant refused Mr McIntosh’s suggestion that she sit on chair in the Claimant refused Mr McIntosh’s suggestion that she sit on chair in the mmanager’s office and anager’s office and accused him of accused him of trying to hide her from trying to hide her from other Partnersother Partners..[80]DuringDuring this time periodthis time period, someone, someone remained with the Claimant, this was remained with the Claimant, this was predominantly Ms Mohamedpredominantly Ms Mohamed,, who hawho had been asked by Mr McIntosh to stay with d been asked by Mr McIntosh to stay with the Claimant. At some point, Laurice McIntoshthe Claimant. At some point, Laurice McIntosh, , another partneranother partner and Ansu and Ansu PatelPatel, , supermarket assistantsupermarket assistant,, alsoalso attendattendeded work and cwork and caame across the me across the Claimant on the floor of the Claimant on the floor of the ladies’ladies’ changing rooms. In statements provided to changing rooms. In statements provided to MrMr MasonMason, , Mr McIntosh, Ms MohammedMr McIntosh, Ms Mohammed and Ms Pateland Ms Patel all confirm that the all confirm that the Claimant was shouting at Mr McIntosh.Claimant was shouting at Mr McIntosh.[81]There is then a significant variation in the accounts There is then a significant variation in the accounts of of the Claimantthe Claimant andand Mr Mr McIntoshMcIntosh. . There are also There are also sone sone variances in the account of ovariances in the account of other parther partnerstners that that became involved like became involved like MsMs Mohammed and Mohammed and MsMs McIntoshMcIntosh. We found it difficult to . We found it difficult to breakdown breakdown and reconcile exactly what had taken place and reconcile exactly what had taken place and concluded that a and concluded that a large part of this was due to the clarge part of this was due to the chaotic nature of the events that unfoldedhaotic nature of the events that unfolded. . What was clear was theWhat was clear was the Claimant wasClaimant was shouting, screaming and crying shouting, screaming and crying throughouthroughout the next few hours whilst the incident was ongoingt the next few hours whilst the incident was ongoing.. WhilstWhilst the the ClaimantClaimant does not accept shouting at anyonedoes not accept shouting at anyone, she accepts that, she accepts that sheshe was was screaming and crying in pain.screaming and crying in pain. Case No. 2206172/2022[82]Whilst she was in the changing room the Claimant called Whilst she was in the changing room the Claimant called 999 for an ambulance 999 for an ambulance on a number of occasions. These calls were overheard by Ms Mohammedon a number of occasions. These calls were overheard by Ms Mohammed as as the phone was on loudspeaker and she states that the Claimant was informed the phone was on loudspeaker and she states that the Claimant was informed that an ambulance would not attethat an ambulance would not attend as it was not an nd as it was not an emergency,emergency, and the and the Claimant was advised to call her GPClaimant was advised to call her GP. The Claimant’s evidence is that the . The Claimant’s evidence is that the ambulance would be ambulance would be coming at some point but not immediately as it was not coming at some point but not immediately as it was not an an emergencyemergency. . We prefer the evidence of Ms Mohammed on this point We prefer the evidence of Ms Mohammed on this point as as ultimately the ambulance did not attendultimately the ambulance did not attend..[83]Ms Mohammed also Ms Mohammed also states that she states that she overheard the Claimant advise theoverheard the Claimant advise the emergencemergencyy operator that she was suffering with back pain that had started 3 operator that she was suffering with back pain that had started 3 days prior. days prior. Whereas Ms McIntoshWhereas Ms McIntosh sstatestates the Claimant said “itthe Claimant said “it [the ba[the back pain]ck pain] started on Saturday when James made her do chickens”started on Saturday when James made her do chickens”.. This is consistent This is consistent with thewith the Claimant’s account that she has continued to maintainClaimant’s account that she has continued to maintain.. We did not We did not hear hear any evidence from Ms any evidence from Ms Mohammed,Mohammed, and it could beand it could be in the midst of all the in the midst of all the screaming and cryingscreaming and crying,, that she misheardthat she misheard. . As such, we do not place any weight As such, we do not place any weight on this aspect of Ms Mohammed’s evidenceon this aspect of Ms Mohammed’s evidence..[84]The Claimant asked Mr McIntosh to call an ambulance. Having The Claimant asked Mr McIntosh to call an ambulance. Having been informed been informed byby Ms MohammedMs Mohammed what the emergency sewhat the emergency service operator had previously said to rvice operator had previously said to the Claimant, Mr McIntosh explained that he was likely to receive the same the Claimant, Mr McIntosh explained that he was likely to receive the same response from the emergency operator as the Claimant had received. response from the emergency operator as the Claimant had received. In In evidence the Claimant evidence the Claimant suggested that as Mr McIntosh was the manager of a suggested that as Mr McIntosh was the manager of a large large branch,branch, he may have been able to persuhe may have been able to persuade an ambulance to attend and ade an ambulance to attend and she would not accept his position that the ambulance response she would not accept his position that the ambulance response would be no would be no different for him. different for him. We find tWe find the Claimant he Claimant again again started to shout at Mr McIntosh started to shout at Mr McIntosh accusing him accusing him of not caring about of not caring about herher and wanting and wanting herher to die.to die.[85]Mr McIntosh returned to check on the Claimant a number of times throughout Mr McIntosh returned to check on the Claimant a number of times throughout the course of the next few hours, and given the emergency services were not the course of the next few hours, and given the emergency services were not sending an sending an ambulance, he offered to arrange for a taxi to take the Claimant to ambulance, he offered to arrange for a taxi to take the Claimant to the hospital, and the hospital, and allowallow Ms MohammedMs Mohammed to accompany the Claimant to the to accompany the Claimant to the hospitalhospital, but she declined, but she declined. The Claimant accepted in cross. The Claimant accepted in cross--examination that the examination that the offer of a taxi and for Ms Mohammed to offer of a taxi and for Ms Mohammed to accompany her was made.accompany her was made. Case No. 2206172/2022[86]We find the Claimant shouted at Mr McIntosh and accused him of We find the Claimant shouted at Mr McIntosh and accused him of ‘‘trying to trying to throw her out onto the street like a dogthrow her out onto the street like a dog’’. In cross. In cross--examination, the Claimant examination, the Claimant accepted she made that comment but not that she was shouting at Mr accepted she made that comment but not that she was shouting at Mr McIntosh.McIntosh.[87]Whilst there appears to be discrepancies in specific timingsWhilst there appears to be discrepancies in specific timings,, the parties are in the parties are in agreement that the whole incident lasted over 2 hours. During the incident and agreement that the whole incident lasted over 2 hours. During the incident and whilst she remained at the branch, the Claimant remained on the floor in the whilst she remained at the branch, the Claimant remained on the floor in the ladies’ladies’ changing rooms, continuing to shout, scream and crychanging rooms, continuing to shout, scream and cry. . At some point At some point during the course of the incident, the Claimantduring the course of the incident, the Claimant accused Mr McIntosh of making accused Mr McIntosh of making her move chickens the day before and causing her injuryher move chickens the day before and causing her injury. .[88]Describing the situation and what was going onDescribing the situation and what was going on, w, wee noted in particular tnoted in particular the he following accounts of following accounts of 33 different different witnesseswitnesses:: • In her follow up meeting with Mr MasonIn her follow up meeting with Mr Mason, , Ms Mohammed Ms Mohammed describesdescribes noise levelnoise levelss asas 99--10 on scale10 on scale;; • She describes “She describes “”there was a lot of shouting, I felt overwhelmed, ”there was a lot of shouting, I felt overwhelmed, exhausted and exhausted and worried.”worried.”;; • She describes the Claimant as in distress and cryingShe describes the Claimant as in distress and crying;; • She describes Mr McIntosh as She describes Mr McIntosh as not shouting but trying to deal with not shouting but trying to deal with the the situationsituation;; • She describes the Claimant She describes the Claimant shoutshoutinging at at Mr McIntoshMr McIntosh, , andand refusrefusinging his his helphelp;; • Ms PatelMs Patel states that the Claimant states that the Claimant was was ““shouting to James you are not shouting to James you are not helping me and lying about everything she was crying and saying all helping me and lying about everything she was crying and saying all this while I was in there. She was very angry wthis while I was in there. She was very angry whilst she washilst she was she talking she talking to James”to James”;; • Mr McIntosh Mr McIntosh states thatstates that the Claimant the Claimant startstarteded screascreamminging at himat him “see “see see!! You want to hide me away so that the other Partners don’t see see!! You want to hide me away so that the other Partners don’t see me. You worry about what they will think but you don’t care about me”me. You worry about what they will think but you don’t care about me”.. • He goes on to state that He goes on to state that the Claimant the Claimant accuses him of not caring aboutaccuses him of not caring about her her and wantand wanting hering her to dieto die..[89]WeWe find that thfind that the accounts of e accounts of Mr McIntosh, Ms MohammedMr McIntosh, Ms Mohammed and Ms Patel all and Ms Patel all corroborate corroborate one another in that the Claimant was shouting, angry and one another in that the Claimant was shouting, angry and aggressive towards Mr McIntosh.aggressive towards Mr McIntosh. In contrast, In contrast, Mr McIntosh Mr McIntosh diddid not shout at the not shout at the ClaimantClaimant and offered her assistance to attend the hospital in the absence of an and offered her assistance to attend the hospital in the absence of an ambulance attending.ambulance attending. We find tWe find the Claimant refushe Claimant refuseded to accept support from Mr to accept support from Mr Case No. 2206172/2022 McIntosh and McIntosh and demonstrateddemonstrated aggressive and rude behaviour by way of shouting aggressive and rude behaviour by way of shouting and scand screamingreaming at himat him..[90]We accept that as time went on, Mr McIntosh became increasingly concerned We accept that as time went on, Mr McIntosh became increasingly concerned for the Claimant’s wellbeing. This resulted in him calling the Claimant’s for the Claimant’s wellbeing. This resulted in him calling the Claimant’s emergency contact, which was her exemergency contact, which was her ex--husband Mr Rosa. Mr Rosa refused to husband Mr Rosa. Mr Rosa refused to come to the store come to the store as Mr McIntosh had as Mr McIntosh had requested butrequested but told Mr McIntosh that he told Mr McIntosh that he would call the Claimant. would call the Claimant.[91]At some point during the course of the incident, the Claimant managed to get At some point during the course of the incident, the Claimant managed to get off the floor and change out of her work uniform and into her own personal off the floor and change out of her work uniform and into her own personal clothes andclothes and walk out of the branch. The Claimant states that she did this with walk out of the branch. The Claimant states that she did this with great difficulty and in great difficulty and in any event had her personal clothes under her uniform as any event had her personal clothes under her uniform as well as ‘slops’ suggesting that this mawell as ‘slops’ suggesting that this madede it easier for her to change. We find it it easier for her to change. We find it implausible that in light of the level of pain the Claimant states that she was in implausible that in light of the level of pain the Claimant states that she was in for such a prolonged period of timfor such a prolonged period of time that e that she wasshe was suddenlysuddenly able to get up and able to get up and change, even if it was just removing a top layer of clotheschange, even if it was just removing a top layer of clothes,, and walk out of the and walk out of the branch without assistance branch without assistance[92]As the situation continued, we accept that Mr McIntosh felt he had exhausted As the situation continued, we accept that Mr McIntosh felt he had exhausted all options and as he stateall options and as he stated on the Managers Google chat “he simply didn’t d on the Managers Google chat “he simply didn’t know what else to do”. He was aware from speaking to Ms Mohammed that an know what else to do”. He was aware from speaking to Ms Mohammed that an ambulance would not be ambulance would not be coming,coming, and and Mr Rosa had made it clear that he would Mr Rosa had made it clear that he would not be attending to collect the Claimantnot be attending to collect the Claimant. In the circumst. In the circumstances,ances, Mr McIntosh Mr McIntosh took the decision to contacttook the decision to contact 111,111, the nonthe non--emergency police phone number for emergency police phone number for assistanceassistance, in the hope they may be able to arrange an ambulance, in the hope they may be able to arrange an ambulance. .[93]A short while after the Claimant left the branch, the police found her outside and A short while after the Claimant left the branch, the police found her outside and she was coshe was conveyed to the hospital in what the police incident report describes nveyed to the hospital in what the police incident report describes was a mental health car, the Claimant states it was an ambulance.was a mental health car, the Claimant states it was an ambulance.[94]We also find We also find Mr McIntosh was not the only person who was concerned that that Mr McIntosh was not the only person who was concerned that that the Claimant was suffering with mental the Claimant was suffering with mental health issueshealth issues, Ms Mohammed also , Ms Mohammed also shared those concerns ashared those concerns as set out in the following comments in her statement:s set out in the following comments in her statement: Case No. 2206172/2022 • I honestly don’t believe that I honestly don’t believe that NatalyaNatalya was intentionally aware of how was intentionally aware of how damaging and destructive her behaviour was to James, myself and damaging and destructive her behaviour was to James, myself and everyone else involved.everyone else involved. • She describes the claimant as She describes the claimant as “may seem to be suffering from some sort “may seem to be suffering from some sort of emotional or mental health crisis”. of emotional or mental health crisis”. • “I wish Natalya the best “I wish Natalya the best and she is able to get the help and support she and she is able to get the help and support she needs and deserves”needs and deserves” • “I was really concerned for her well“I was really concerned for her well--being and safety for suddenly being and safety for suddenly walking out of the branch”.walking out of the branch”.[95]TThroughout the incident throughout the incident there are a number of different here are a number of different accounts of accounts of conversations involving conversations involving the use of the word dying and killingthe use of the word dying and killing. Examples of . Examples of some of these includesome of these include:: • Ms Mohammed recalling the Claimant stating “If she leaves the branch Ms Mohammed recalling the Claimant stating “If she leaves the branch without an ambulance, she will die, and we are not helping” without an ambulance, she will die, and we are not helping” • Mr McIntosh states that Mr McIntosh states that the Claimant accused him othe Claimant accused him of trying to f trying to kill her and kill her and that she would rather kill herself than leave the branchthat she would rather kill herself than leave the branch. He posts on the . He posts on the Managers google chat at 10.44 that “she says she is going to kill herself”Managers google chat at 10.44 that “she says she is going to kill herself” • The Claimant states that Mr McIntosh stated to her that said if she The Claimant states that Mr McIntosh stated to her that said if she wanted the wanted the ambulance to come quicker to call them and tell them you ambulance to come quicker to call them and tell them you have mental health issues and want to commit suicidehave mental health issues and want to commit suicide[96]We find that amidst all the chaWe find that amidst all the chaotic shouting, screaming and cryingotic shouting, screaming and crying, as well as , as well as the languagthe language communication difficulties, e communication difficulties, it is perhaps understandait is perhaps understandable that ble that things may have been misthings may have been mis--heardheard, mis, mis--communicated and misunderstoodcommunicated and misunderstood. . As a As a result of these difficulties in reconciling exactly what was said and to whom, weresult of these difficulties in reconciling exactly what was said and to whom, we decided todecided to focus our fact finding on the focus our fact finding on the specific specific five five allegations allegations that the that the Claimant makes Claimant makes against Mr McIntoshagainst Mr McIntosh.. Case No. 2206172/2022 Call the police and the respondent’s security staff? Call the police and the respondent’s security staff?// State that the Claimant wasState that the Claimant was suicidalsuicidal??[97]In respect of thIn respect of theseese allegationallegationss,, we will deal with them together as the facts are we will deal with them together as the facts are linked.linked. TThere is no dispute thathere is no dispute that at some stage during the incident,at some stage during the incident, Mr McIntosh Mr McIntosh called the police.called the police. What is in dispute is exactly what Mr McIntosh sWhat is in dispute is exactly what Mr McIntosh said to the aid to the police. Mr McIntosh is categoric in his assertipolice. Mr McIntosh is categoric in his assertion that he did not on that he did not tell the police tell the police that the Claimant was suicidal, however, we find thatthat the Claimant was suicidal, however, we find that itit is is more likely than not more likely than not that he told the police as he did on the Managers group chat the that he told the police as he did on the Managers group chat the CClaimant laimant ““had had stated that she is going to kill herselfstated that she is going to kill herself””.. WeWe heard from Mr Rosa that he was told heard from Mr Rosa that he was told by the police that theby the police that they had been told by the manager at Waitrose that the y had been told by the manager at Waitrose that the Claimant had mental health issues and wanted to commit suicideClaimant had mental health issues and wanted to commit suicide. . We We accept accept Mr Rosa’s evidence that the police may well Mr Rosa’s evidence that the police may well have used thesehave used these or similaror similar wordswords, , however, however, we find that it would not be unusual for the police to we find that it would not be unusual for the police to recordrecord reports of reports of a person stating that they are going to kill themselves a person stating that they are going to kill themselves as as a person wantina person wanting to g to commit commit ‘‘suicidesuicide’’. .[98]The documentary evidence that the Tribunal has seen in the form of the google The documentary evidence that the Tribunal has seen in the form of the google chat is Mr McIntosh reporting what he states the Claimant has said to him. chat is Mr McIntosh reporting what he states the Claimant has said to him. That is That is notnot the same as Mr McIntosh the same as Mr McIntosh statstatinging his own beliefhis own belief that the Claimant that the Claimant ‘‘is is suicidalsuicidal’’. . In crossIn cross--examination Mr Rosa examination Mr Rosa admitadmitted ted that Mr McIntosh did not say that Mr McIntosh did not say this to himthis to him, , instead instead he had stated that the Claimant he had stated that the Claimant “had had a mental “had had a mental breakdown”breakdown”, this is consistent with Mr McIntosh’s , this is consistent with Mr McIntosh’s evidenceevidence. The Claimant . The Claimant admitted that he had not said to her that she was suicidal and there is no other admitted that he had not said to her that she was suicidal and there is no other evidence from anyone evidence from anyone stating that Mr McIntosh had stated that the Claimant stating that Mr McIntosh had stated that the Claimant was suicidal. In light of all these factors we was suicidal. In light of all these factors we conclude that Mr McIntosh did not conclude that Mr McIntosh did not ststate that the Claimant was suicidal ate that the Claimant was suicidal either toeither to ththee ppoliceolice or indeed anyone elseor indeed anyone else..[99]We find there is no evidence that Mr McIntosh called the respondent’s security We find there is no evidence that Mr McIntosh called the respondent’s security staff,staff, and it is accepted by the Claimant that security staff did not attendand it is accepted by the Claimant that security staff did not attend.. Case No. 2206172/2022 Describe the Describe the CClaimant as a “crazy person”? laimant as a “crazy person”?[100]The Claimant admitted in crossThe Claimant admitted in cross--examination that Mr Mcintosh did not say this to examination that Mr Mcintosh did not say this to herher as did Mr Rosaas did Mr Rosa. There is no evidence . There is no evidence that Mr McIntosh said this to anyone that Mr McIntosh said this to anyone elseelse, as such we find that he did not state this., as such we find that he did not state this. State that the claimant needed a psychiatrist? State that the claimant needed a psychiatrist?[101]Other than the Claimant’s Other than the Claimant’s evidence, tevidence, there is no here is no other corroborating other corroborating evidence evidence that Mr McIntosh said this to that Mr McIntosh said this to the Claimant or the Claimant or anyone elseanyone else. In light of our . In light of our findings in terms of the Claimant’s reliabilityfindings in terms of the Claimant’s reliability,, we finwe find that d that Mr McIntoshMr McIntosh did did not not state this.state this. State that the claimant would kill everyone around her? State that the claimant would kill everyone around her?[102]The Claimant admitted in crossThe Claimant admitted in cross--examination that Mr Mcintosh did not say this to examination that Mr Mcintosh did not say this to her as did her as did Mr Rosa. Mr Rosa. In light of our findings earlier In light of our findings earlier in respect in respect of Mr Rosa of Mr Rosa confirming that the police did not confirming that the police did not say this to himsay this to him,, wewe alsoalso find tfind there is no here is no evidence that Mr McIntosevidence that Mr McIntosh said this to anyone elseh said this to anyone else.. Reasonable adjustments Reasonable adjustments -- removal from heavy liftingremoval from heavy lifting[103]In or around 13 February 2022, in a contemporaneous message on the In or around 13 February 2022, in a contemporaneous message on the Managers Whatsapp group chat, Mr Miah advises that he has spoken to the Managers Whatsapp group chat, Mr Miah advises that he has spoken to the Claimant about her absence levels Claimant about her absence levels following a return to work from an absence following a return to work from an absence around 8around 8thth February. He states that he has suggested moving the Claimant February. He states that he has suggested moving the Claimant away from meat and fish and bake off to checkouts and shop floor as it does away from meat and fish and bake off to checkouts and shop floor as it does not involve heavy lifting to not involve heavy lifting to an an extent. He sextent. He sttates that the ates that the Claimant has agreed Claimant has agreed but asked to wait until April when she will be seeing her chiropractor. Mr Miah but asked to wait until April when she will be seeing her chiropractor. Mr Miah asks the Claimant for her GP notes so he can add them to her wellness form. asks the Claimant for her GP notes so he can add them to her wellness form. There is no suggestion that the Claimant asked to be removed from heavy There is no suggestion that the Claimant asked to be removed from heavy liftinlifting or that he had removed from her the same.g or that he had removed from her the same. Case No. 2206172/2022[104]This is followed by a Wellness and Reasonable Adjustments form dated 13 This is followed by a Wellness and Reasonable Adjustments form dated 13 March 2022 which is completed by Mr Miah in conjunction with The Claimant. March 2022 which is completed by Mr Miah in conjunction with The Claimant. In this form, Mr Miah records the following relevant informatioIn this form, Mr Miah records the following relevant information:n: a) a) The Claimant is to be careful with the tasks she carries out and is to be The Claimant is to be careful with the tasks she carries out and is to be given an additional body in the mornings to assist with liftinggiven an additional body in the mornings to assist with lifting;; b) b) The Claimant has a physiotherapy appointment on 14 April 2022The Claimant has a physiotherapy appointment on 14 April 2022;; c) c) The Claimant is taking coThe Claimant is taking co--codamolcodamol;; d) d) The Claimant fiThe Claimant finds heavy lifting challengingnds heavy lifting challenging;; e) e) Under the section what will the Claimant do if she starts to feel unwell, it is Under the section what will the Claimant do if she starts to feel unwell, it is recorded that “I will let a manager know”.recorded that “I will let a manager know”.[105]Again,Again, this form does not suggest that the Claimant is to be removed from all this form does not suggest that the Claimant is to be removed from all heavy lifting rather itheavy lifting rather it confirms that she will manage her tasks carefully with confirms that she will manage her tasks carefully with support being provided in the mornings to assist with lifting. The Claimant’s support being provided in the mornings to assist with lifting. The Claimant’s evidence was that her GP’s note from a week prior stated no heavy lifting. evidence was that her GP’s note from a week prior stated no heavy lifting. We We have seenhave seen a fit note dated 6 April coverina fit note dated 6 April covering the period 4 April 2022 to 17 April g the period 4 April 2022 to 17 April 2022 which states that the Claimant may be fit for work with amended duties 2022 which states that the Claimant may be fit for work with amended duties and/or workplace adaptations, it does not and/or workplace adaptations, it does not specifyspecify anything about heavy lifting. anything about heavy lifting. It was also accepted by the Claimant that she was actually ofIt was also accepted by the Claimant that she was actually off sick during this f sick during this period. period. Conversation between Claimant and Mr Miah, sick leave Conversation between Claimant and Mr Miah, sick leave[106]In or around 13 February 2022, Mr Miah In or around 13 February 2022, Mr Miah hheld a meeting with the Claimant as eld a meeting with the Claimant as her sickness levels had exceeded the Respondent’s her sickness levels had exceeded the Respondent’s threshold triggering athreshold triggering an n informalinformal line manager line manager conversationconversation.. Mr Miah states that during this Mr Miah states that during this conversation he informed the Claimant that if her absence didn’t improve conversation he informed the Claimant that if her absence didn’t improve in in acaccordance with policycordance with policy,, one potential outcome could be dismissal from the one potential outcome could be dismissal from the Partnership.Partnership. It was also during the course of this conversation that Mr MiaIt was also during the course of this conversation that Mr Miahh had had discussed reasonable adjustments with the Claimantdiscussed reasonable adjustments with the Claimant..[107]In her written evidence and In her written evidence and claim form, the Claimant alleges that Mr Miah had claim form, the Claimant alleges that Mr Miah had informed her informed her that if she missed that if she missed ‘one’‘one’ more day of work she more day of work she ccould be dismissedould be dismissed. . Case No. 2206172/2022 In her oral evidence, the Claimant In her oral evidence, the Claimant changed her evidence and stated that she changed her evidence and stated that she meant one more period meant one more period of absenceof absence. The Tribunal find that it was. The Tribunal find that it was in factin fact the the Claimant’s understanding Claimant’s understanding from her conversation with Mr Miah that she could be from her conversation with Mr Miah that she could be dismissed for one more day of sicknessdismissed for one more day of sickness. She makes reference to her concerns . She makes reference to her concerns about being dismissed about being dismissed if she took any more if she took any more sick dayssick days, , makes makes referencereference toto this this during the incident on 24 April and during the incident on 24 April and during the incident with Mr Gilbert on 3during the incident with Mr Gilbert on 3rdrd April.April. Adam Gilbert incident Adam Gilbert incident, April 2022, April 2022[108]On 3 April 2022, On 3 April 2022, Adam Gilbert, branch Manager is made awareAdam Gilbert, branch Manager is made aware by another by another Partner,Partner, that the that the Claimant was cryinClaimant was crying and upset. She was in a room situated g and upset. She was in a room situated off the Meat and Fish Counteroff the Meat and Fish Counter. Mr Gilbert made his way over to the Claimant . Mr Gilbert made his way over to the Claimant and found and found the Claimant the Claimant still in the room visibly upset. still in the room visibly upset. The Claimant agreed to The Claimant agreed to speak to Mr Gilbert and accompanied him tspeak to Mr Gilbert and accompanied him to his officeo his office..[109]When asked why she was upset, the Claimant When asked why she was upset, the Claimant informed himinformed him that this was due that this was due to the fact thatto the fact that she been left in bake offshe been left in bake off the day before the day before without supportwithout support despite despite the branch being awarethe branch being aware that she was unable to lift due to that she was unable to lift due to ongoing back painongoing back pain and for which she had been referred forand for which she had been referred for. She. She asked Mr asked Mr Yusef Yusef AbaiAbai, , TeamTeam manager and dismissing officer,manager and dismissing officer, for for help help as she as she needed to needed to lift a box from the lift a box from the bottom of a bottom of a cage,cage, but her request was declined.but her request was declined. Mr Gilbert asked her why she Mr Gilbert asked her why she hadn’t made him aware of thadn’t made him aware of this yesterday as he was duty manager and had his yesterday as he was duty manager and had been working.been working. Mr Gilbert asked her what suppMr Gilbert asked her what support the branch could provide and ort the branch could provide and the Claimant advised that her the Claimant advised that her line manager, Mr Miah had already referred her line manager, Mr Miah had already referred her to occupational healthto occupational health and that he had promised her that she would have and that he had promised her that she would have “Thomas” to support her on every shift“Thomas” to support her on every shift. . In response In response Mr GilbertMr Gilbert informed the informed the Claimant Claimant that they simply couldn’t afford to have 2 people doing 1 person’s job that they simply couldn’t afford to have 2 people doing 1 person’s job and then explored and then explored with her what else she could dowith her what else she could do..[110]IIn his statement,n his statement, provided as part of the disciplinary investigationprovided as part of the disciplinary investigation,, Mr Gilbert Mr Gilbert states that states that during the course of the conversation, the Claimant became agitated during the course of the conversation, the Claimant became agitated and started to raise her voice, he and started to raise her voice, he askasked her not to ed her not to shout at him but she shout at him but she continued to do so whilst also at the same time continued to do so whilst also at the same time stating that she was not stating that she was not Case No. 2206172/2022 shouting. She said that shouting. She said that Waitrose lawyers had Waitrose lawyers had told her that he was going to do told her that he was going to do this and that if he was going to firethis and that if he was going to fire her,her, he he just just needed to get on with it.needed to get on with it. Mr Mr GiGilbert thelbert then describes the Claimant as becoming more agitated and n describes the Claimant as becoming more agitated and started to started to yell yell at him to fire her as at him to fire her as she knew that was what he was going to do. she knew that was what he was going to do. He states, He states, she continued to yell at him as she made her way out of his office and down the she continued to yell at him as she made her way out of his office and down the corridor.corridor. Mr GilbeMr Gilbert then lert then leftft to inform Mr McIntosh to inform Mr McIntosh of what had just occurred.of what had just occurred.[111]In her In her evidence the Claimant accepts that the conversation took place but evidence the Claimant accepts that the conversation took place but deniedeniess shouting at Mr Gilbertshouting at Mr Gilbert. . She She felt that felt that during the course of this during the course of this conversation, Mr Gilbert was conversation, Mr Gilbert was removing removing thethe adjustment that she had been adjustment that she had been provided of anprovided of an additional additional personperson to support herto support her..[112]Mr McIntosh in his evidence stated that his understanding was Mr McIntosh in his evidence stated that his understanding was that Mr Gilbert that Mr Gilbert was simply was simply pointing out the additional support was not something that was pointing out the additional support was not something that was available at all times of the Claimant’s shift but available at all times of the Claimant’s shift but only if the Claimantonly if the Claimant required required assistance with heavy liftingassistance with heavy lifting, which was predominantly in the mornings, which was predominantly in the mornings for for certain taskscertain tasks. We find that this . We find that this incincident did occurident did occur, the Claimant did shout at Mr , the Claimant did shout at Mr GilbertGilbert and did believe that he was going to fire herand did believe that he was going to fire her.. This was all in the context This was all in the context of of her understanding of what Mr Miah had said to her about her leave andher understanding of what Mr Miah had said to her about her leave and the the fact thatfact that she felt that during the course of she felt that during the course of this conversation, Mr Gilbert was this conversation, Mr Gilbert was removing the adjustment that she had been provided of an additional person to removing the adjustment that she had been provided of an additional person to support her with heavy lifting, as required.support her with heavy lifting, as required. Disciplinary Investigation Disciplinary Investigation[113]An investigation was carried out by An investigation was carried out by MrMr Mason, who held a meeting with the Mason, who held a meeting with the Claimant on 19 May 2022. The Claimant was informed that she was invited to Claimant on 19 May 2022. The Claimant was informed that she was invited to the meeting to discuss her potential serious misconduct.the meeting to discuss her potential serious misconduct.[114]As part of his investigation, Mr Mason As part of his investigation, Mr Mason also also spokespoke to Mr McIntoshto Mr McIntosh,, Ms Ms MohamedMohamed, , Ms Patel and Ms McIntoshMs Patel and Ms McIntosh. . The Claimant confirmed The Claimant confirmed in crossin cross--examination that she did not feel there was anyone else that examination that she did not feel there was anyone else that Mr Mason Mr Mason should should have spoken to. She does challenge the fact that Mr Mason did not speak to have spoken to. She does challenge the fact that Mr Mason did not speak to MMs McIntosh to begin with, however, we accept Mr Mason’s explanation that Mr s McIntosh to begin with, however, we accept Mr Mason’s explanation that Mr Case No. 2206172/2022 McIntosh and Ms Mohammed McIntosh and Ms Mohammed were the two main individuals involved with the were the two main individuals involved with the Claimant on 24 April 2022. Claimant on 24 April 2022.[115]Mr Mason Mr Mason consideredconsidered, , after carrying out a thorough investigation, after carrying out a thorough investigation, that that the the ClaClaimant had behaved in an inappropriate manner without sufficient mitigating imant had behaved in an inappropriate manner without sufficient mitigating circumstances, and believed there was therefore a case to answer. Mr Mason circumstances, and believed there was therefore a case to answer. Mr Mason referred the matter to referred the matter to MrMr AbaiAbai.. Dismissal Dismissal[116]The Claimant was invited by letter on 9 June 2022 to a The Claimant was invited by letter on 9 June 2022 to a meeting on 14 June meeting on 14 June 2022 to2022 to discuss her potential serious misconduct. discuss her potential serious misconduct. The letter confirmed that the The letter confirmed that the purpose of the hearing was to discuss the allegations of purpose of the hearing was to discuss the allegations of "potential serious "potential serious misconduct, namely inappropriate behaviourmisconduct, namely inappropriate behaviour,, capable of causing harm and capable of causing harm and offence"offence".. The Claimant was advised that she wasThe Claimant was advised that she was entitled to be accompanied to entitled to be accompanied to the meeting by a work colleague or trade unionthe meeting by a work colleague or trade union representative. representative.[117]The disciplinary hearing took place on 14 June 2022 chaired by Mr Abai. The disciplinary hearing took place on 14 June 2022 chaired by Mr Abai.[118]During the meeting, Mr Abai set out the events lDuring the meeting, Mr Abai set out the events leading to the disciplinary eading to the disciplinary meetingmeeting and asked the Claimant to say in her own words what happened. The and asked the Claimant to say in her own words what happened. The ClaimantClaimant discussed the incident of 24 April including alleging that Mr McIntosh discussed the incident of 24 April including alleging that Mr McIntosh refused to call anrefused to call an ambulance and that he called the police to escort her frambulance and that he called the police to escort her from om the building.the building.[119]In an effort to understand the effects of the Claimant’s back pain and if it could In an effort to understand the effects of the Claimant’s back pain and if it could leadlead to the behaviour the Claimant to the behaviour the Claimant exhibitexhibited on 24 April, Mr Abaied on 24 April, Mr Abai adjourned the adjourned the hearing andhearing and referred the Claimantreferred the Claimant to the Respondent’s into the Respondent’s in--house house occupational occupational health providerhealth provider.. In or around In or around 4 July 2022, OH replied4 July 2022, OH replied simply stating that the simply stating that the behaviour may not have been behaviour may not have been acceptable,acceptable, but it was understandable but it was understandable how it how it may have happenedmay have happened. We find. We find there was no specific confirmation that there was no specific confirmation that severseveree back pain would hback pain would have caused the Claimant to behave in that mannerave caused the Claimant to behave in that manner.. We also We also note as did Mr Abai that inote as did Mr Abai that in her discussion with Occupational Health, tn her discussion with Occupational Health, the he Claimant Claimant appears to have appears to have accepted that she was accepted that she was ““aggressiveaggressive…..…..raising her raising her Case No. 2206172/2022 voice, shouting voice, shouting at times and at times and cryingcrying”. She states that this was out of frustration ”. She states that this was out of frustration as managers had removed the as managers had removed the person who was meant to be assisting her with person who was meant to be assisting her with heavy lifting.heavy lifting.[120]Ultimately,Ultimately, tthe Claimant produced no he Claimant produced no evidence, medical or otherwise which evidence, medical or otherwise which supported her contention that supported her contention that her behaviour her behaviour on 24 April wason 24 April was brought aboutbrought about as a as a result of result of herher back painback pain..[121]Following receipt of the occupational health report, the Claimant was invitedFollowing receipt of the occupational health report, the Claimant was invited to to attend a reconvened disciplinary meeting.attend a reconvened disciplinary meeting. A reconvened disciplinary hearing A reconvened disciplinary hearing took place on 18 July 2022 chaired bytook place on 18 July 2022 chaired by Mr Abai.Mr Abai.[122]Following a furtherFollowing a further discussion with the Claimant, including discussing the discussion with the Claimant, including discussing the Claimant’s latest occupationalClaimant’s latest occupational health report, Mr Abai adjourned the meeting to health report, Mr Abai adjourned the meeting to consider the outcome.consider the outcome.[123]During the adjournment, Mr Abai reviewed all of the During the adjournment, Mr Abai reviewed all of the relevant evidence includingrelevant evidence including documentation gathered during the investigation, the notes of the investigation documentation gathered during the investigation, the notes of the investigation meetingmeeting with the Claimant, the notes of the disciplinary meeting, the with the Claimant, the notes of the disciplinary meeting, the occupational health report and the Claimant’s mitigation in respect of her bacoccupational health report and the Claimant’s mitigation in respect of her back k pain. Mr Abai thenpain. Mr Abai then considered an appropriate sanction and concluded that due considered an appropriate sanction and concluded that due to the serious nature of theto the serious nature of the allegations it was appropriate to dismiss the allegations it was appropriate to dismiss the Claimant with immediate effect. Claimant with immediate effect. Mr Abai Mr Abai considered the Occupational Health considered the Occupational Health referral and referral and concluded thatconcluded that it did not state that the it did not state that the Claimant’s back pain would Claimant’s back pain would cause erratic and aggressive behaviour. cause erratic and aggressive behaviour. As such he formed the opinion thatAs such he formed the opinion that the the back pain was not the root cause of the Claimant’s behaviourback pain was not the root cause of the Claimant’s behaviour.. Mr AbaiMr Abai considered that the Claimant showed no remorse for hconsidered that the Claimant showed no remorse for her aggressive, and rudeer aggressive, and rude behaviour, and that her behaviour was capable of behaviour, and that her behaviour was capable of causicausing harm and offence.ng harm and offence.[124]Mr Abai reconvened the meeting and informed the Claimant of his decision. Mr Abai reconvened the meeting and informed the Claimant of his decision. After theAfter the meeting, Mr Abai handed the Claimant a letter which confirmed that meeting, Mr Abai handed the Claimant a letter which confirmed that the outcome of thethe outcome of the disciplinary hearing was that she was dismissed for serious disciplinary hearing was that she was dismissed for serious misconduct, namelymisconduct, namely inappropriate behaviour capable of causing harm and inappropriate behaviour capable of causing harm and offence. offence. Case No. 2206172/2022[125]The letter alsoThe letter also informed the Claimant of her right to appeal. In the meeting, Mr informed the Claimant of her right to appeal. In the meeting, Mr Abai also infoAbai also informed thermed the Claimant that she had 7 days to appeal the outcome of Claimant that she had 7 days to appeal the outcome of her disciplinary hearing. her disciplinary hearing. It is not disputed that the Claimant informed Mr Abai It is not disputed that the Claimant informed Mr Abai that she was going on holiday, howeverthat she was going on holiday, however, Mr Abai, Mr Abai states thatstates that she did not inform she did not inform him of the him of the dates,dates, nor did she requnor did she request that Mrest that Mr Abai grant her an extension of Abai grant her an extension of time in which to submit her appeal. time in which to submit her appeal. The Claimant The Claimant stated in oral evidence that stated in oral evidence that she was flyingshe was flying out of the countryout of the country the day after the day after the hearing but then admitted her the hearing but then admitted her flight was actually a few days later. flight was actually a few days later.[126]The Claimant did notThe Claimant did not appeal against the decision to dismiss her.appeal against the decision to dismiss her. Disability Disability[127]It is clearly recorded at the Preliminary Hearing in December 2022 that the It is clearly recorded at the Preliminary Hearing in December 2022 that the Claimant does not Claimant does not allege she is disabled by virtue of a mental impairmentallege she is disabled by virtue of a mental impairment.. The The disability allegeddisability alleged by the Claimantby the Claimant is her “back”is her “back”..[128]In theIn the disability impact statementdisability impact statement provided by the Claimant,provided by the Claimant, she identifiesshe identifies twotwo “adverse” effects on her “adverse” effects on her dayday--toto--dayday activitiesactivities, these being , these being the need to carry one the need to carry one day’s worth of shopping and difficulties getting her daughter ready for school. In day’s worth of shopping and difficulties getting her daughter ready for school. In oral evidence, when crossoral evidence, when cross--examined on this issue, the Claimant examined on this issue, the Claimant added the added the followingfollowing substantial adverse effects on her daysubstantial adverse effects on her day--toto--day activitiday activities, these being es, these being that she wasthat she was ““unable to cook, clean, have a shower or bath myself, unable to unable to cook, clean, have a shower or bath myself, unable to look after my daughter”.look after my daughter”.[129]In crossIn cross--examinationexamination, when asked, about how frequently she is restricted from , when asked, about how frequently she is restricted from assisting her daughter to get ready for schoolassisting her daughter to get ready for school, the Claima, the Claimant nt replied,replied, “every two “every two months for two weeks, months for two weeks, I I end up in hospital, when I can’t do it anymore”.end up in hospital, when I can’t do it anymore”. TheThere re are two recordsare two records of hospital attendanceof hospital attendance for back pain, these beingfor back pain, these being 5 July 20215 July 2021 and 24 April 2022. and 24 April 2022. The Claimant The Claimant also attended hospital for MRI scans in also attended hospital for MRI scans in relrelation to her spine on 21 Novemberation to her spine on 21 November 20212021..[130]In her disability impact statement, the Claimant has alleged she has suffered In her disability impact statement, the Claimant has alleged she has suffered from back pain for 20 years and received medical care in Turkmenistan. from back pain for 20 years and received medical care in Turkmenistan. The The Tribunal hasTribunal has seenseen no evidence from Turkmenistanno evidence from Turkmenistan. T. The earliest reference in he earliest reference in Case No. 2206172/2022 the Claimant’s medical reco the Claimant’s medical records to back pain rds to back pain is 16 May 2018is 16 May 2018, however, , however, we note we note the entrythe entry dodoes record ongoing history of back pain. es record ongoing history of back pain. In light of this, whilst there In light of this, whilst there is no medical evidence of back pain is no medical evidence of back pain prior to this, the Tribunal prior to this, the Tribunal concludeconclude that that the the ClaimantClaimant has suffered with back pain has suffered with back pain sisincence at leastat least 16 May 201816 May 2018. For the . For the purpose of these purpose of these claims, there is no requirement for the Tribunal to make any claims, there is no requirement for the Tribunal to make any finding in finding in termsterms of any earlier period and the Tribunal declines to do so.of any earlier period and the Tribunal declines to do so.[131]The Claimant produced approximately 20 pages of evidence The Claimant produced approximately 20 pages of evidence at the at the hearing hearing consisting of consisting of medical records which had not previously been disclosedmedical records which had not previously been disclosed. . It is It is unclear why these records had not been disclosed any earlierunclear why these records had not been disclosed any earlier, , tthe Tribunal he Tribunal found found they were clearly relevant. The Tribunal noted thatthey were clearly relevant. The Tribunal noted that the medical records the medical records included in the bundle referenceincluded in the bundle referencedd the dates of the GP and hospital the dates of the GP and hospital attendanceattendancess, the records now disclosed appeared to , the records now disclosed appeared to be the detail behind the be the detail behind the summary entries on the notes within the bundlesummary entries on the notes within the bundle. . It appearIt appearss the Claimant was the Claimant was confused as to confused as to whwhose responsibility disclosure was ose responsibility disclosure was and and mismisunderstood that the understood that the Respondent would be including the notes.Respondent would be including the notes. Regardless of the position on this Regardless of the position on this the Tribunal admitted the notes into evidethe Tribunal admitted the notes into evidence and considered them relevant to nce and considered them relevant to the issue of disability.the issue of disability.[132]The Tribunal The Tribunal notes the following relevant references in the additional notes the following relevant references in the additional medical medical records and evidencerecords and evidence disclosed by the Claimant:disclosed by the Claimant: a) a) 16 May 201816 May 2018 –– ongoing history of back pain, has had MRI scan with NADongoing history of back pain, has had MRI scan with NAD detected, said was under a lot of stress from her workplace last week detected, said was under a lot of stress from her workplace last week.. SStarts tarts on co on co--codamolcodamol;; b) b) February 2020 February 2020 –– GP entry states GP entry states “was in tears most of the time from the “was in tears most of the time from the consultation, not coping with consultation, not coping with dayday--toto--dayday activities”activities”;; c) c) 9 March 20219 March 2021 –– unable to eat or do housework when this happensunable to eat or do housework when this happens,, coco--codamol or naproxencodamol or naproxen;; d) d) 9 March 20219 March 2021 -- NaproxenNaproxen medication boxmedication box;; e) e) 5 July 20215 July 2021 -- presents with worsening backpain since being off her presents with worsening backpain since being off her analgesiaanalgesia since three days ago.since three days ago.-- medication allowing her to do some day to day medication allowing her to do some day to day activitiesactivities;; Case No. 2206172/2022 f) f) 23 November 202123 November 2021 –– deformity of deformity of spinespine, , patient has recurrent back painpatient has recurrent back pain,, refer refer her to MSKher to MSK,, musculoskeletalmusculoskeletal clinicclinic;; g) g) 14 March 202214 March 2022 –– Physiotherapy appointmentPhysiotherapy appointment. It is accepted that the date on . It is accepted that the date on this appointment note has been noted incorrectly and this appointment note has been noted incorrectly and it should state 14 April it should state 14 April 2022. This is corr2022. This is corroborated oborated in the contemporaneous account that the Claimantin the contemporaneous account that the Claimant providesprovides MrMr MiahMiah following her return to work meeting on 2022.following her return to work meeting on 2022.[133]In terms of the Respondent’s knowledge of disability, the Tribunal noted the In terms of the Respondent’s knowledge of disability, the Tribunal noted the following relevant referencesfollowing relevant references in the bundlein the bundle:: a) a) Entry datedEntry dated 16.05.201816.05.2018 -- back pain unspecified not fit for work for one weekback pain unspecified not fit for work for one week;; b) b) Entry datedEntry dated 29.06.20 29.06.20 recording,recording, bad back can’t movebad back can’t move, , consider referral back consider referral back painpain.. c) c) Email dated 29 FebruaryEmail dated 29 February 20202020 relating to the Claimant’s sickness absence,relating to the Claimant’s sickness absence, from from Ashleigh Ashleigh Legg to Legg to MrMr AbaiAbai ((Claimant’s line manager at that time) Claimant’s line manager at that time) copying in other managerscopying in other managers. The email states there have been 5 periods of . The email states there have been 5 periods of absenceabsence, 3 of which related to , 3 of which related to “bad “bad backback”” and for which permission for and for which permission for referral was to be soughtreferral was to be sought;; d) d) In an investigation note dated 29 February 2020, In an investigation note dated 29 February 2020, 3131stst May, 26 OctoberMay, 26 October and and 8 February 2020 recorded8 February 2020 recorded as bad back absencesas bad back absences;; e) e) Managers Managers groupgroup WhatsappWhatsapp chat messagechat message from from MrMr MiahMiah dated 13 February dated 13 February 2022 2022 recorecords details of conversation with Claimant following return to work rds details of conversation with Claimant following return to work from back painfrom back pain;; f) f) WWellness reasonable adjustments checklistellness reasonable adjustments checklist formform dated dated 13 March 202213 March 2022, , setting out adjustmentssetting out adjustments;; g) g) Medical FMedical Fit noteit note records records history of back pain history of back pain and and Claimant unfit for workClaimant unfit for work between 4 April and 17 April 2022.between 4 April and 17 April 2022. Case No. 2206172/2022 Relevant Law Relevant Law Unfair dismissal Unfair dismissal
Relevant Law
[134]Section 98(1) places the burden on the employer to show the reason or Section 98(1) places the burden on the employer to show the reason or principal reason for the dismissal and that it is one of the potentially fair reasons principal reason for the dismissal and that it is one of the potentially fair reasons identified within Section 98(2), or failing that some other substantial reason. identified within Section 98(2), or failing that some other substantial reason.[135]Where the RespondeWhere the Respondent shows that dismissal was for a potentially fair reason, nt shows that dismissal was for a potentially fair reason, the general test of fairness appears in section 98(4): “…the determination of the the general test of fairness appears in section 98(4): “…the determination of the question whether the dismissal is fair or unfair (having regard to the reasons question whether the dismissal is fair or unfair (having regard to the reasons shown by the employer) shown by the employer) ––(a) depends(a) depends on whether in the circumstances on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and(b) shall be determined inreason for dismissing the employee, and (b) shall be determined in accordance accordance with equity and the substantial merits of the case”. with equity and the substantial merits of the case”.[136]In misconduct dismissals, there is wellIn misconduct dismissals, there is well--established guidance on fairness within established guidance on fairness within section 98(4) in the decisions in section 98(4) in the decisions in Burchell 1978 IRLR 379 and Post Office v Burchell 1978 IRLR 379 and Post Office v Foley 2000 IRLR 827.Foley 2000 IRLR 827. The Tribunal must decide whether the employer had a The Tribunal must decide whether the employer had a genuine belief in the employee’s guilt. Then the Tribunal must decide whether genuine belief in the employee’s guilt. Then the Tribunal must decide whether the employer held such genuine belief on reasonable grounds and after the employer held such genuine belief on reasonable grounds and after carrying out a reasonable investigation. In all aspectscarrying out a reasonable investigation. In all aspects of the case, including the of the case, including the investigation, the grounds for belief, the penalty imposed, and the procedure investigation, the grounds for belief, the penalty imposed, and the procedure followed, the Tribunal must decide whether the employer acted within the band followed, the Tribunal must decide whether the employer acted within the band or range of reasonable responses open to an employer in the circumstanceor range of reasonable responses open to an employer in the circumstances. It s. It is immaterial how the Tribunal would have handled the events or what decision is immaterial how the Tribunal would have handled the events or what decision it would have made, and the Tribunal must not substitute its view for that of the it would have made, and the Tribunal must not substitute its view for that of the reasonable employer reasonable employer (Iceland Frozen Foods Limited v Jones 1982 IRLR (Iceland Frozen Foods Limited v Jones 1982 IRLR 439, Sainsbury’s Super439, Sainsbury’s Supermarkets Limited v Hitt 2003 IRLR 23, and London markets Limited v Hitt 2003 IRLR 23, and London Ambulance Service NHS Trust v Small 2009 IRLR 563).Ambulance Service NHS Trust v Small 2009 IRLR 563). Case No. 2206172/2022 Discrimination arising from disability Discrimination arising from disability[137]Section 15 of the Equality Act 2010 provides;Section 15 of the Equality Act 2010 provides; (1) (1) A person (A) discriminates against a disabled person (B) ifA person (A) discriminates against a disabled person (B) if—— (a)(a) A treats B unfavourably because of something arising in consequence of A treats B unfavourably because of something arising in consequence of B's disability, and (b)B's disability, and (b) A cannot show that the treatment is a proportionate A cannot show that the treatment is a proportionate means of acmeans of achieving a legitimate aim.hieving a legitimate aim. (2)(2) Subsection (1) does not apply if A shows that A did not know, and could 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.not reasonably have been expected to know, that B had the disability.[138]In In Gallop v Newport City Council [2013] EWCA Civ 1583Gallop v Newport City Council [2013] EWCA Civ 1583, the Court of , the Court of Appeal highlighted that it is vital for a reasonable employer to consider whether Appeal highlighted that it is vital for a reasonable employer to consider whether an employee is disabled, and form their own judgment on this issue. an employee is disabled, and form their own judgment on this issue.[139]The burden of proof in terms of knowledge is on the employer to prove that it The burden of proof in terms of knowledge is on the employer to prove that it was unreasowas unreasonable for them to have the required knowledge. This is a question nable for them to have the required knowledge. This is a question of fact for the Tribunal. The burden is on the employer to show it was of fact for the Tribunal. The burden is on the employer to show it was unreasonable to have the required knowledge. unreasonable to have the required knowledge.[140]The EHRC Employment Code provides that employers must do all they can The EHRC Employment Code provides that employers must do all they can rereasonably be expected to do to find out whether a worker has a disability. asonably be expected to do to find out whether a worker has a disability. What is reasonable will depend on the circumstances. This is an objective What is reasonable will depend on the circumstances. This is an objective assessment. When making enquiries about disability, employers should assessment. When making enquiries about disability, employers should consider issues of dignity and privacy consider issues of dignity and privacy and ensure that personal information is and ensure that personal information is dealt with confidentially. dealt with confidentially.[141]S15 (2) provides that the discrimination will not arise if A shows they did not S15 (2) provides that the discrimination will not arise if A shows they did not know and could not reasonably be expected to know that B had a disability. know and could not reasonably be expected to know that B had a disability.[142]In order for In order for aa Claimant to sucClaimant to succeed in ceed in aa claim under section 15, the following claim under section 15, the following must be made out:a. there must be unfavourable treatment;b. there must be must be made out: a. there must be unfavourable treatment; b. there must be something that arises in consequence of the Claimant’s disability;c. the something that arises in consequence of the Claimant’s disability; c. the unfavourable treatment must be because of (i.e. caused by)unfavourable treatment must be because of (i.e. caused by) the something that the something that Case No. 2206172/2022 arises in consequence of the disability;d. the alleged discriminator cannot show arises in consequence of the disability; d. the alleged discriminator cannot show that the unfavourable treatment is a proportionate means of achieving a that the unfavourable treatment is a proportionate means of achieving a legitimate aim.legitimate aim.[143]Useful guidance on the proper approach was provided by Mrs Justice Simler in Useful guidance on the proper approach was provided by Mrs Justice Simler in the case of the case of Pnaiser v NHS England [2016] IRLR, EATPnaiser v NHS England [2016] IRLR, EAT: : “A Tribunal must first “A Tribunal must first identify whether there was unfavourable treatment and by whom: in other identify whether there was unfavourable treatment and by whom: in other words, it must ask whether A trewords, it must ask whether A treated B unfavourably in the respects relied on ated B unfavourably in the respects relied on by B. No question of comparison arises. The Tribunal must determine what by B. No question of comparison arises. The Tribunal must determine what caused the impugned treatment, or what was the reason for it. The focus at this 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 ostage is on the reason in the mind of A. An examination of the conscious or f the conscious or unconscious thought processes of A is likely to be required, just as it is in a 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 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, thercause for impugned treatment in a direct discrimination context, so too, there e may be more than one reason in a s.15 case. The “something” that causes the 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 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, least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to and so amount to an effective reason for or cause of it.” an effective reason for or cause of it.”[144]Motives are irrelevant. The focus of this part of the enquiry is on the reason or Motives are irrelevant. The focus of this part of the enquiry is on the reason or cause of the impugned treatment and the Respondent’s motive in acting as he cause of the impugned treatment and the Respondent’s motive in acting as he or she did is simply irrelevant. or she did is simply irrelevant.[145]The Supreme Court coThe Supreme Court considered this claim in nsidered this claim in Williams v Trustees of Swansea Williams v Trustees of Swansea University Pension and Assurance Scheme [2018] IRLR 306University Pension and Assurance Scheme [2018] IRLR 306 and confirmed and confirmed that this claim raises two simple questions of fact: what was the relevant that this claim raises two simple questions of fact: what was the relevant treatment and was it unfavourable to the Claimant?' 'Unfatreatment and was it unfavourable to the Claimant?' 'Unfavourable' must be vourable' must be given its normal meaning; it does not require comparison, it is not the same as given its normal meaning; it does not require comparison, it is not the same as 'detriment'. A Claimant cannot succeed by arguing that treatment that is in fact 'detriment'. A Claimant cannot succeed by arguing that treatment that is in fact favourable might have been even more favourable. The court confirmed that favourable might have been even more favourable. The court confirmed that demdemonstrating unfavourable treatment is a relatively low hurdle. onstrating unfavourable treatment is a relatively low hurdle.[146]The Supreme Court said that in dealing with a section 15 claim, the first The Supreme Court said that in dealing with a section 15 claim, the first requirement was to identify the treatment relied upon. In that case it was the requirement was to identify the treatment relied upon. In that case it was the Case No. 2206172/2022 award of a pension. There was nothing i award of a pension. There was nothing intrinsically unfavourable or ntrinsically unfavourable or disadvantageous about the pension on the facts of this case. On the facts the disadvantageous about the pension on the facts of this case. On the facts the pension was only available to disabled employees (since the entitlement only pension was only available to disabled employees (since the entitlement only arise upon permanent incapacity). While that could be less favourable tharise upon permanent incapacity). While that could be less favourable than an someone with a different disability, who may have worked more hours upon someone with a different disability, who may have worked more hours upon cessation of employment, no comparison was needed for the purposes of cessation of employment, no comparison was needed for the purposes of section 15. The claim failed. The Court emphasised that unfavourable section 15. The claim failed. The Court emphasised that unfavourable treatment meant what it says and was not treatment meant what it says and was not a high hurdle to surmount. a high hurdle to surmount.[147]The Equality and Human Rights Commission Code of Practice contains some The Equality and Human Rights Commission Code of Practice contains some provisions of relevance to the question of justification. Paragraph 5.2.1 of the provisions of relevance to the question of justification. Paragraph 5.2.1 of the Code suggests that if a Respondent has failed to make a reasonable Code suggests that if a Respondent has failed to make a reasonable adjustmadjustment it will be very difficult for it to show that its unfavourable treatment of ent it will be very difficult for it to show that its unfavourable treatment of the Claimant is justified. As to justification, in paragraph 4.27 the code the Claimant is justified. As to justification, in paragraph 4.27 the code considers the phraseconsiders the phrase “a proportionate means of achieving a legitimate aim” “a proportionate means of achieving a legitimate aim” (albeit it in the context (albeit it in the context of justification of indirect discrimination) and suggested of justification of indirect discrimination) and suggested that the question should be approached in two stages:that the question should be approached in two stages:-- * is the aim legal and * is the aim legal and non discriminatory, and one that represents a real, objective consideration? * if non discriminatory, and one that represents a real, objective consideration? * if so, is the means of achieving it propso, is the means of achieving it proportionate ortionate –– that is, appropriate and that is, appropriate and necessary in all the circumstances. necessary in all the circumstances.[148]As to that second question, the code goes on in paragraphs 4.30 As to that second question, the code goes on in paragraphs 4.30 –– 4.32 to 4.32 to explain that this involves a balancing exercise between the discriminatory effect explain that this involves a balancing exercise between the discriminatory effect of the decision as againsof the decision as against the reasons for applying it, taking into account all t the reasons for applying it, taking into account all relevant facts. It goes on to say the following at paragraph 4.31:relevant facts. It goes on to say the following at paragraph 4.31:-- “although not “although not defined by the Act, the term “proportionate” is taken from EU directives and its defined by the Act, the term “proportionate” is taken from EU directives and its meaning has been clarified by decisionmeaning has been clarified by decisions of the CJEU (formerly the ECJ). EU s of the CJEU (formerly the ECJ). EU law views treatment as proportionate if it is an “appropriate and necessary” law views treatment as proportionate if it is an “appropriate and necessary” means of achieving a legitimate aim. But “necessary” does not mean that the means of achieving a legitimate aim. But “necessary” does not mean that the [unfavourable treatment] is the only possible way of achieving a l[unfavourable treatment] is the only possible way of achieving a legitimate aim; egitimate aim; it is sufficient that the same aim could not be achieved by less discriminatory it is sufficient that the same aim could not be achieved by less discriminatory means.” means.” Case No. 2206172/2022[149]In In Chief Constable v Homer 2012 ICR 704 Chief Constable v Homer 2012 ICR 704 Baroness Hale stated that to be Baroness Hale stated that to be proportionate a measure has to be both an appropriate means of achieving the proportionate a measure has to be both an appropriate means of achieving the lelegitimate aim and reasonably necessary in order to do so. She approved gitimate aim and reasonably necessary in order to do so. She approved earlier authorities which emphasised the objective must correspond to a real earlier authorities which emphasised the objective must correspond to a real need and the means used must be appropriate with a view to achieving the need and the means used must be appropriate with a view to achieving the objective and be necessary to that eobjective and be necessary to that end. It is necessary to weigh the need nd. It is necessary to weigh the need against the seriousness of the detriment. against the seriousness of the detriment.[150]The question is whether the action is, objectively assessed, a proportionate The question is whether the action is, objectively assessed, a proportionate means to achieve a legitimate end. The employer has to show (and the onus is means to achieve a legitimate end. The employer has to show (and the onus is on the employer to son the employer to show) that the treatment is a proportionate means of how) that the treatment is a proportionate means of achieving a legitimate aim. The Tribunal can take account of the reasonable achieving a legitimate aim. The Tribunal can take account of the reasonable needs of the Respondent’s business but the Tribunal must make its own needs of the Respondent’s business but the Tribunal must make its own judgment as to whether the measure is reasonably necessaryjudgment as to whether the measure is reasonably necessary. There is no . There is no room for the range of reasonable response test. room for the range of reasonable response test. Duty to make adjustments Duty to make adjustments[151]Sections 20 & 21 of the Equality Act 2010 provides;Sections 20 & 21 of the Equality Act 2010 provides; Section 20 Section 20 –– Duty to make adjustmentsDuty to make adjustments(1) (1) Where this Act imposes a duty to make reasonable adjustments on a Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is apply; and for those purposes, a person on whom the duty is imposed is referred to as A. referred to as A.(2) (2) The duty comprises the foThe duty comprises the following three requirements. llowing three requirements.(3) (3) The first requirement is a requirement, where a provision, criterion or The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not relation to a relevant matter in comparison with persons who are not disableddisabled, to take such steps as it is reasonable to have to take to avoid the , to take such steps as it is reasonable to have to take to avoid the disadvantage. disadvantage. Case No. 2206172/2022(4) (4) The second requirement is a requirement, where a physical feature puts a The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant disabled person at a substantial disadvantage in relation to a relevant matter in comparisonmatter in comparison with persons who are not disabled, to take such with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. steps as it is reasonable to have to take to avoid the disadvantage.(5) (5) The third requirement is a requirement, where a disabled person would, The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substbut for the provision of an auxiliary aid, be put at a substantial antial disadvantage in relation to a relevant matter in comparison with persons disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid. to provide the auxiliary aid. Section 21 Failure to comply with duty Section 21 Failure to comply with duty (1) (1) A failure to comply with tA failure to comply with the first, second or third requirement is a failure he first, second or third requirement is a failure to comply with a duty to make reasonable adjustments. to comply with a duty to make reasonable adjustments. (2) (2) A discriminates against a disabled person if A fails to comply with that A discriminates against a disabled person if A fails to comply with that duty in relation to that person.duty in relation to that person.[152]It is not necessary to prove that the potential adjustment will remove the It is not necessary to prove that the potential adjustment will remove the disadvantage; if there is a “real prospect” that it will, the adjustment may disadvantage; if there is a “real prospect” that it will, the adjustment may be reasonable. In be reasonable. In Romec v RudhamRomec v Rudham [2007] All ER (D) 206 (Jul), EAT[2007] All ER (D) 206 (Jul), EAT: : HHJ Peter Clark said that it was unneHHJ Peter Clark said that it was unnecessary to be able to give a cessary to be able to give a definitive answer to the question of the extent to which the adjustment definitive answer to the question of the extent to which the adjustment would remove the disadvantage. If there was a 'real prospect' of would remove the disadvantage. If there was a 'real prospect' of removing the disadvantage it 'may be reasonable'. removing the disadvantage it 'may be reasonable'.[153]In In Cumbria Probation Board v CollingwooCumbria Probation Board v Collingwood d [2008] All ER (D) 04[2008] All ER (D) 04 (Sep), EAT(Sep), EAT: HHJ McMullen said that 'it is not a requirement in a : HHJ McMullen said that 'it is not a requirement in a reasonable adjustment case that the claimant prove that the suggestion reasonable adjustment case that the claimant prove that the suggestion made will remove the substantial disadvantage'. made will remove the substantial disadvantage'.[154]InIn Leeds Teaching Hospital NHS Trust v Leeds Teaching Hospital NHS Trust v FosterFoster UKEAT/UKEAT/0552/100552/10,, [2011] EqLR 1075[2011] EqLR 1075, the EAT said that, when , the EAT said that, when Case No. 2206172/2022 considering whether an adjustment is reasonable, it is sufficient for a considering whether an adjustment is reasonable, it is sufficient for a tribunal to find that there would be 'a prospect' of the adjustment tribunal to find that there would be 'a prospect' of the adjustment removing the disadvantage.removing the disadvantage.[155]IIn respect of reasonable adjustment claims, an additional element of n respect of reasonable adjustment claims, an additional element of knowledge is required. The first element is the same test as in S15 knowledge is required. The first element is the same test as in S15 namely that A shows they do not know or could be reasonably be namely that A shows they do not know or could be reasonably be expected to know that the [interested] disabled person haexpected to know that the [interested] disabled person has a disability. s a disability. Schedule 8 EQA 2010 pt. 3 para 20 states that A is not subject to the Schedule 8 EQA 2010 pt. 3 para 20 states that A is not subject to the duty to make reasonable adjustments if A does not know, and could not duty to make reasonable adjustments if A does not know, and could not reasonably be expected to know that a disabled person has a disability reasonably be expected to know that a disabled person has a disability and is likely to be placed atand is likely to be placed at a disadvantage. Accordingly, the additional a disadvantage. Accordingly, the additional element on knowledge for S20/21 claims is that A must also be element on knowledge for S20/21 claims is that A must also be reasonably expected to know the disabled person is likely to be placed reasonably expected to know the disabled person is likely to be placed at the disadvantage.at the disadvantage. Direct discrimination Direct discrimination[156]Section 13 of the Section 13 of the Equality Act 2010 provides as follows;Equality Act 2010 provides as follows; A person(a) (A) discriminates against another(b) (B) if, because of a protected A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others”. characteristic, A treats B less favourably than A treats or would treat others”. Burden of Proof Burden of Proof[157]Section 136 of the Equality Act 2010Section 136 of the Equality Act 2010 providesprovides;; (2) If there are facts from which the court could decide, in the absence of any (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not court must hold that the contravention occurred. (3) But subsection (2) does not apply apply if A shows that A did not contravene the provision. if A shows that A did not contravene the provision. Case No. 2206172/2022[158]In In Islington Borough Council v Ladele [2009] ICR 387Islington Borough Council v Ladele [2009] ICR 387 Mr Justice Elias Mr Justice Elias explained the essence of direct discrimination as follows: explained the essence of direct discrimination as follows: “The concept of direct “The concept of direct discrimination is fundamentally a simple one. The discrimination is fundamentally a simple one. The claimant suffers some form of claimant suffers some form of detriment (using that term very broadly) and the reason for that detriment or detriment (using that term very broadly) and the reason for that detriment or treatment is the prohibited ground. There is implicit in that analysis the fact that treatment is the prohibited ground. There is implicit in that analysis the fact that someone in a similar position to whom that ground did not applysomeone in a similar position to whom that ground did not apply (the (the comparator) would not have suffered the detriment. By establishing that the comparator) would not have suffered the detriment. By establishing that the reason for the detrimental treatment is the prohibited reason, the claimant reason for the detrimental treatment is the prohibited reason, the claimant necessarily establishes at one and the same time that he or she is less necessarily establishes at one and the same time that he or she is less favourably treated than thfavourably treated than the comparator who did not share the prohibited e comparator who did not share the prohibited characteristic.”characteristic.”[159]Burrett v West Birmingham Health Authority 1994 IRLR 7, EATBurrett v West Birmingham Health Authority 1994 IRLR 7, EAT is an is an example of the proposition that it is for the tribunal to decide as a matter of fact example of the proposition that it is for the tribunal to decide as a matter of fact what is less favourable treatment and the test posed by the legislation is an what is less favourable treatment and the test posed by the legislation is an objective one. The fact that a Claimant believes that he or she has been treated objective one. The fact that a Claimant believes that he or she has been treated less fless favourably does not of itself establish that there has been less favourable avourably does not of itself establish that there has been less favourable treatment, although the Claimant’s perception of the effect of treatment is likely treatment, although the Claimant’s perception of the effect of treatment is likely to be relevant as to whether, objectively, that treatment was less favourable. to be relevant as to whether, objectively, that treatment was less favourable.[160]In order for a diIn order for a disadvantage to qualify as a “detriment”, it must arise in the sadvantage to qualify as a “detriment”, it must arise in the employment field, in that ET must find that by reason of the act or acts employment field, in that ET must find that by reason of the act or acts complained of a reasonable worker would or might take the view that he had complained of a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstancesthereby been disadvantaged in the circumstances in which he had thereafter to in which he had thereafter to work. An unjustified sense of grievance cannot amount to “detriment”. However, work. An unjustified sense of grievance cannot amount to “detriment”. However, to establish a detriment, it is not necessary to demonstrate some physical or to establish a detriment, it is not necessary to demonstrate some physical or economic consequence, economic consequence, Shamoon v Chief Constable of RUCShamoon v Chief Constable of RUC [2003] UKHL [2003] UKHL 1111. .[161]Igen v Wong and Others [2005] IRLR 258 Igen v Wong and Others [2005] IRLR 258 andand Madarassy v Nomura Madarassy v Nomura International PLC [2007] IRLR 246International PLC [2007] IRLR 246.. The employment tribunal should go The employment tribunal should go through a twothrough a two--stage process, the first stage of which requires the Claimant to stage process, the first stage of which requires the Claimant to prove facts which could establish that thprove facts which could establish that the Respondent has committed an act of e Respondent has committed an act of discrimination, after which, and only if the Claimant has proved such facts, the discrimination, after which, and only if the Claimant has proved such facts, the Case No. 2206172/2022 Respondent is required to establish on the balance of probabilities that it did not Respondent is required to establish on the balance of probabilities that it did not commit the unlawful act of discrimination. In concludicommit the unlawful act of discrimination. In concluding as to whether the ng as to whether the Claimant had established a prima facie case, the tribunal is to examine all the Claimant had established a prima facie case, the tribunal is to examine all the evidence provided by the Respondent and the Claimant.evidence provided by the Respondent and the Claimant.[162]Madarrassy v Nomura International Ltd 2007 ICR 867Madarrassy v Nomura International Ltd 2007 ICR 867 -- the bare facts of the the bare facts of the difference in protected cdifference in protected characteristic and less favourable treatment is not haracteristic and less favourable treatment is not “without more, sufficient material from which a tribunal could conclude, on “without more, sufficient material from which a tribunal could conclude, on balance of probabilities that the Respondent” committed an act of unlawful balance of probabilities that the Respondent” committed an act of unlawful discrimination”. There must be “something more”. discrimination”. There must be “something more”.[163]NagNagarajan v London Regional Transport [1999] IRLR 572, HLarajan v London Regional Transport [1999] IRLR 572, HL,,--“The crucial “The crucial question in every case was, 'why the complainant received less favourable question in every case was, 'why the complainant received less favourable treatment … Was it on grounds of race? Or was it for some other reason, for treatment … Was it on grounds of race? Or was it for some other reason, for instance, because the complainant wasinstance, because the complainant was not so well qualified for the job?'” not so well qualified for the job?'”[164]Chief Constable of West Yorkshire Police v Khan [2001] UKHL 48, [2001] Chief Constable of West Yorkshire Police v Khan [2001] UKHL 48, [2001] IRLR 830, [2001] ICR 1065, HL,IRLR 830, [2001] ICR 1065, HL, -- The test is what was the reason why the The test is what was the reason why the alleged discriminator acted as they did? What, consciously or unconscioualleged discriminator acted as they did? What, consciously or unconsciously sly was their reason? Looked at as a question of causation ('but for …'), it was an was their reason? Looked at as a question of causation ('but for …'), it was an objective test. The antiobjective test. The anti--discrimination legislation required something different; discrimination legislation required something different; the test should be subjective: 'Causation is a legal conclusion. The reason why the test should be subjective: 'Causation is a legal conclusion. The reason why a person aa person acted as he did is a question of fact.' cted as he did is a question of fact.' Harassment Harassment[165]Section 26 of the Equality Act 2010 provides;Section 26 of the Equality Act 2010 provides; (1) A person (A) harasses another (B) if (1) A person (A) harasses another (B) if—— (a)A engages in unwanted conduct (a)A engages in unwanted conduct related to a relevant protected characteristic, and (b)the conduct has the related to a relevant protected characteristic, and (b)the conduct has the purpose or effect ofpurpose or effect of—— (i)violating B's dignity, or (ii)creating an intimidating, (i)violating B's dignity, or (ii)creating an intimidating, hostile, degrading, humilhostile, degrading, humiliating or offensive environment for B. (4)In deciding iating or offensive environment for B. (4)In deciding whether conduct has the effect referred to in subsection (1)(b), each of the whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into accountfollowing must be taken into account—— (a)the perception of B; (b)the other (a)the perception of B; (b)the other Case No. 2206172/2022 circumstances of the case; (c)whether it is reason circumstances of the case; (c)whether it is reasonable for the conduct to have able for the conduct to have that effect.” that effect.”[166]Richmond Pharmacology V Miss A Dhaliwal [2009] ICR 724.Richmond Pharmacology V Miss A Dhaliwal [2009] ICR 724. There are two There are two alternative bases of liability in the harassment provisions, that of purpose and alternative bases of liability in the harassment provisions, that of purpose and effect, which means that the Respondent may be held liable on the basis that effect, which means that the Respondent may be held liable on the basis that the effect of his conduct has been to produce the prescribed consequences the effect of his conduct has been to produce the prescribed consequences even if teven if that was not a purpose, and conversely that he may be liable if he acted hat was not a purpose, and conversely that he may be liable if he acted for the purposes of producing the prescribed consequences but did not, in fact, for the purposes of producing the prescribed consequences but did not, in fact, do so. do so.[167]Grant v HM Land Registry & EHRC [2011] IRLR 748 CAGrant v HM Land Registry & EHRC [2011] IRLR 748 CA emphasised the emphasised the importance of giving full weiimportance of giving full weight to the words of the section when deciding ght to the words of the section when deciding whether the Claimant’s dignity was violated or whether a hostile, degrading, whether the Claimant’s dignity was violated or whether a hostile, degrading, humiliating or offensive environment was created: “Tribunals must not cheapen humiliating or offensive environment was created: “Tribunals must not cheapen the significance of these words. They are an importantthe significance of these words. They are an important control to prevent trivial control to prevent trivial acts causing minor upsets being caught by the concept of harassment.” acts causing minor upsets being caught by the concept of harassment.”[168]Pemberton v Inwood [2018] EWCA Civ 564Pemberton v Inwood [2018] EWCA Civ 564.. Underhill J ''In order to decide Underhill J ''In order to decide whether any conduct falling within subwhether any conduct falling within sub--paragraph (1)(a) of section 26 EqA has paragraph (1)(a) of section 26 EqA has eitheither of the proscribed effects under suber of the proscribed effects under sub--paragraph (1)(b), a tribunal must paragraph (1)(b), a tribunal must consider both (by reason of subconsider both (by reason of sub--section 4(a)) whether the putative victim section 4(a)) whether the putative victim perceives themselves to have suffered the effect in question (the subjective perceives themselves to have suffered the effect in question (the subjective question) and (by reason of subquestion) and (by reason of sub--section 4(c)) whether it was reasonable for the section 4(c)) whether it was reasonable for the conduct to be regarded as having that effect (the objective question). It must conduct to be regarded as having that effect (the objective question). It must also take into account all the other circumstances (subsection 4(b)). also take into account all the other circumstances (subsection 4(b)). Time limits Time limits[169]Section 123 of the Equality Act 2010 providSection 123 of the Equality Act 2010 provides as follows;es as follows; (1) [Subject to [sections 140A and 140B],] proceedings on a complaint within (1) [Subject to [sections 140A and 140B],] proceedings on a complaint within section 120 may not be brought after the end ofsection 120 may not be brought after the end of—— (a) the period of 3 months (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other starting with the date of the act to which the complaint relates, or (b) such other Case No. 2206172/2022 per period as the employment tribunal thinks just and equitable. (3) For the iod as the employment tribunal thinks just and equitable. (3) For the purposes of this sectionpurposes of this section—— (a) conduct extending over a period is to be treated (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as as done at the end of the period; (b) failure to do something is to be treated as occurring when the personoccurring when the person in question decided on it. in question decided on it.[170]British Coal Corporation v Keeble [1997] IRLR 336British Coal Corporation v Keeble [1997] IRLR 336, it was held that the , it was held that the Tribunal’s power to extend time was similarly as broad under the ‘just and Tribunal’s power to extend time was similarly as broad under the ‘just and equitable’ formula. However, it is unnecessary for a tribunal to go through theequitable’ formula. However, it is unnecessary for a tribunal to go through the above list in every case, ‘provided of course that no significant factor has been above list in every case, ‘provided of course that no significant factor has been left out of account by the employment tribunal in exercising its discretion’ left out of account by the employment tribunal in exercising its discretion’[171](Southwark London Borough v Afolabi [2003] IRLR 220). Robertson and (Southwark London Borough v Afolabi [2003] IRLR 220). Robertson and Bexley Community Centre (tBexley Community Centre (trading as Leisure Link) 2003 IRLR 434CArading as Leisure Link) 2003 IRLR 434CA -- there is no presumption that time should be extended to validate an out of time there is no presumption that time should be extended to validate an out of time claim unless the Claimant can justify the failure to issue the claim in time. The claim unless the Claimant can justify the failure to issue the claim in time. The Tribunal cannot hear a claim unless the Claimant conTribunal cannot hear a claim unless the Claimant convinces the Tribunal that it vinces the Tribunal that it is just and equitable to extend time so the exercise of the discretion is the is just and equitable to extend time so the exercise of the discretion is the exception rather than the rule. exception rather than the rule.[172]Abertawe Bro Morgannwg University v Morgan [2018] EWCA Civ 640Abertawe Bro Morgannwg University v Morgan [2018] EWCA Civ 640 -- the the "such other period as the employment tribunal t"such other period as the employment tribunal thinks just and equitable" hinks just and equitable" extension indicates that Parliament chose to give the tribunal the widest extension indicates that Parliament chose to give the tribunal the widest possible discretion. Although there is no prescribed list of factors for the tribunal possible discretion. Although there is no prescribed list of factors for the tribunal to consider, "factors which are almost always relevant to consider areto consider, "factors which are almost always relevant to consider are:(a) the : (a) the length of, and reasons for, the delay and(b) whether the delay has prejudiced length of, and reasons for, the delay and (b) whether the delay has prejudiced the Respondent”.the Respondent”.[173]The Court of Appeal made it clear in The Court of Appeal made it clear in Hendricks v Metropolitan Police Hendricks v Metropolitan Police Commissioner [2002] EWCA Civ 1686Commissioner [2002] EWCA Civ 1686, that in cases involving a number of , that in cases involving a number of allegations of discriminatory acts or omissions, it is not necessary for an allegations of discriminatory acts or omissions, it is not necessary for an applicant to establish the existence of some 'policy, rule, scheme, regime or applicant to establish the existence of some 'policy, rule, scheme, regime or practice, in accordance with which decisions affecting the treatpractice, in accordance with which decisions affecting the treatment of workers ment of workers are taken'. Rather, what she has to prove, in order to establish 'an act are taken'. Rather, what she has to prove, in order to establish 'an act extending over a period', is that(a) the incidents are linked to each other, and extending over a period', is that (a) the incidents are linked to each other, and Case No. 2206172/2022(b) that they are evidence of a 'continuing discriminatory state of affairs'. The (b) that they are evidence of a 'continuing discriminatory state of affairs'. The focfocus of the enquiry should be on whether there was an “ongoing situation or us of the enquiry should be on whether there was an “ongoing situation or continuing state of affairs” as oppose to “a succession of unconnected or continuing state of affairs” as oppose to “a succession of unconnected or isolated specific acts”. It will be a relevant, but not conclusive, factor whether isolated specific acts”. It will be a relevant, but not conclusive, factor whether the same or different indthe same or different individuals were involved in the alleged incidents of ividuals were involved in the alleged incidents of discrimination over the period. An employer may be responsible for a state of discrimination over the period. An employer may be responsible for a state of affairs that involves a number of different individuals.affairs that involves a number of different individuals. DISCUSSION & CONCLUSIONS DISCUSSION & CONCLUSIONS General General[174]Throughout the course of the Throughout the course of the hearing, the Claimant expressed her deep sense hearing, the Claimant expressed her deep sense of injustice at being described as someone with mental health difficulties. She of injustice at being described as someone with mental health difficulties. She described the stigma that was associated with mental health in Turkmenistan, described the stigma that was associated with mental health in Turkmenistan, where she originated from andwhere she originated from and a a realreal concern that hconcern that her child could be removed er child could be removed from her if she was found to be suffering with mental health issuesfrom her if she was found to be suffering with mental health issues.. We made it We made it clear to the Claimant on a number of occasions that we were not being asked clear to the Claimant on a number of occasions that we were not being asked to determine whether or not she had a mental health disability and would to determine whether or not she had a mental health disability and would not be not be doing so.doing so. This was not something either party relied upon in terms of their This was not something either party relied upon in terms of their evidence or submissions. The Claimant did not seek to argue any mental health evidence or submissions. The Claimant did not seek to argue any mental health disability and was clear that she had never suffered with any mental health disability and was clear that she had never suffered with any mental health issues. issues.[175]In termsIn terms of the Respondent, any mental health references were confined to the of the Respondent, any mental health references were confined to the events of 24 April 2022 and it was the evidence of Mr McIntosh and Ms events of 24 April 2022 and it was the evidence of Mr McIntosh and Ms Mohammed that in their respective opinions the Claimant was experiencing Mohammed that in their respective opinions the Claimant was experiencing some sort of mental breakdown. Mr McIntosh some sort of mental breakdown. Mr McIntosh in his evidence accepted he was in his evidence accepted he was not a medical professional and this conclusion was only his opinion. not a medical professional and this conclusion was only his opinion.[176]IIn n order to determine the Claimant’s complaints we were required to make order to determine the Claimant’s complaints we were required to make findings in respect of the actions of Mr McIntosh and any comments he may findings in respect of the actions of Mr McIntosh and any comments he may have have made regarding the Claimant’s made regarding the Claimant’s mental mental health.health. The findings The findings and our and our Case No. 2206172/2022 conclusions in respect of this conclusions in respect of this should not be should not be seen in any way asseen in any way as our views in our views in respect of whether or not the Claimant was experiencing respect of whether or not the Claimant was experiencing mental health issues.mental health issues. Disability & Knowledge of Disability & Knowledge of disabilitydisability[177]We conclude based on our findings that the Claimant was a disabled person at We conclude based on our findings that the Claimant was a disabled person at all material times as a result of her back pain. all material times as a result of her back pain. Whilst there were some gaps in Whilst there were some gaps in the medical evidence, it the medical evidence, it iis evident that back pain features evident that back pain featuress in the records in the records as far as far back back as as 16 16 May 2018, with reference to a history of back pain prior to this.May 2018, with reference to a history of back pain prior to this. The The Claimant appears to have had an MRI scan at some point Claimant appears to have had an MRI scan at some point wwhichhich at at that that stage stage did not detect any abnormality. did not detect any abnormality. She is prescribed coShe is prescribed co--codamolcodamol painkillerspainkillers at this at this stagestage.. There are then a There are then a further 4 GP record entries between February 2020 further 4 GP record entries between February 2020 and November 2021and November 2021,, all recording back painall recording back pain and there is further reference to and there is further reference to coco--codamol and naproxen pain killers being prescribed.codamol and naproxen pain killers being prescribed. The last entry in The last entry in November 2021 states recurrent back painNovember 2021 states recurrent back pain and referral to the musand referral to the musculoskeletal culoskeletal clinicclinic..[178]With regard With regard to the back pain having ato the back pain having a substantialsubstantial, long term , long term adverse effect onadverse effect on the Claimant’sthe Claimant’s ability to carry out dayability to carry out day--toto--day activitiesday activities, we agree that the, we agree that the disability impact statement disability impact statement iis sparse in details sparse in detail, however , however the Claimant does the Claimant does reference reference difficulties with shopping and getting her daughter ready for schooldifficulties with shopping and getting her daughter ready for school.. In In oraoral evidence the Claimant added that she was unable to cookl evidence the Claimant added that she was unable to cook, clean and have , clean and have a shower. a shower. She also added that sheShe also added that she would suffer with symptoms every 2 months would suffer with symptoms every 2 months and would struggle with day to day activities for a few weeks. and would struggle with day to day activities for a few weeks. The medical The medical records records to some extent to some extent also corroborate the impact on day to day activitiesalso corroborate the impact on day to day activities with with a number of reference to the Claimant being unable to coa number of reference to the Claimant being unable to cope with these pe with these activactivities including being unable to do any housework when she experiences ities including being unable to do any housework when she experiences the symptoms.the symptoms. The medical records The medical records include consistent references to impact on include consistent references to impact on dayday--toto--day activities between February 2020 and July 2021day activities between February 2020 and July 2021.. Considering this Considering this information information in its totality, we conclude that the back pain had a substantialin its totality, we conclude that the back pain had a substantial, long , long termterm adverse effect on the Claimant’s ability adverse effect on the Claimant’s ability to carry out day to day activities.to carry out day to day activities.[179]With regard to the Respondent’s knowledge of the Claimant’s disability,With regard to the Respondent’s knowledge of the Claimant’s disability, tthere here are a significant number of references in the Claimant’s employment records are a significant number of references in the Claimant’s employment records to to Case No. 2206172/2022 back pain and the Claimant not being fit for work, these date back to May 2018 back pain and the Claimant not being fit for work, these date back to May 2018 and continue and continue to April 2022to April 2022.. Referrals to Occupational Health are mentioned on Referrals to Occupational Health are mentioned on a number of occa number of occasions asions with the last reference being around February 2022with the last reference being around February 2022,, when Mr Miah when Mr Miah discusses the Claimant’s return following a period of absence for discusses the Claimant’s return following a period of absence for back painback pain, he posts the details of this on the Manager’s WhatsApp group , he posts the details of this on the Manager’s WhatsApp group ensuring all other Managers wereensuring all other Managers were mademade awareaware.. IIn March 2022, Mr Miah n March 2022, Mr Miah completes a wellness form completes a wellness form and and agreagrees adjustments with the Claimantes adjustments with the Claimant further further highlighting his awareness of the impact of the back pain on the highlighting his awareness of the impact of the back pain on the ClaimantClaimant’’s s ability to carry out her roleability to carry out her role. . Shortly prior to the events of 23 and 24 April 2022Shortly prior to the events of 23 and 24 April 2022, , the Claimant provides a fit note the Claimant provides a fit note which states that she is unfit for work as a which states that she is unfit for work as a result of back between 4 and 17 April 2022.result of back between 4 and 17 April 2022.[180]In consideration of In consideration of all of the above, all of the above, we are satisfied that the Respondent had we are satisfied that the Respondent had knowledge of the Claimant’s disability at all knowledge of the Claimant’s disability at all material times relevant to this claimmaterial times relevant to this claim.. Direct disability discrimination Direct disability discrimination[181]As a result of our earlier findings thAs a result of our earlier findings the e only aonly allegatiollegationn of direct disability of direct disability discrimination thatdiscrimination that remainsremains for us to considerfor us to consider is is that relating to Mr McIntosh that relating to Mr McIntosh calling the policecalling the police. .[182]We find that the calling of the police was not because of the Claimant’s We find that the calling of the police was not because of the Claimant’s disability rather it was due to Mr McIntosh’s concerns relating to the Claimant’s disability rather it was due to Mr McIntosh’s concerns relating to the Claimant’s mental health due to her conduct at the time.mental health due to her conduct at the time. This was not a case of Mr This was not a case of Mr McIntosh reaching an unreasonMcIntosh reaching an unreasonable conclusion, his actions were based on the able conclusion, his actions were based on the circumstances and the Claimant’s behaviour at the time. It circumstances and the Claimant’s behaviour at the time. It is is of note that Ms of note that Ms Mohammed who was present for the majority of the incident also shared Mr Mohammed who was present for the majority of the incident also shared Mr McIntosh’s concerns regarding the Claimant’s mental healthMcIntosh’s concerns regarding the Claimant’s mental health at that time. at that time.[183]We conclude the decision to call the police was a last resort We conclude the decision to call the police was a last resort action taken by Mr action taken by Mr McIntosh who had clearly exhausted all other options available to him,McIntosh who had clearly exhausted all other options available to him, including including requesting the Claimant’s emergency contact to attend the branch and collect requesting the Claimant’s emergency contact to attend the branch and collect the Claimant.the Claimant. The incident had been ongoing for a prolonged length of time, The incident had been ongoing for a prolonged length of time, other staff were becoming visibly distressed andother staff were becoming visibly distressed and we acceptwe accept Mr McIntosh as Mr McIntosh as Case No. 2206172/2022 branch manager branch manager had a responsibility tohad a responsibility towards all staffwards all staff including the Claimantincluding the Claimant andand to ensureto ensure the smooth runnthe smooth running of the branching of the branch. Contrary to what the Claimant . Contrary to what the Claimant believed, the police were not called to arrest her, they were contacted by Mr believed, the police were not called to arrest her, they were contacted by Mr McIntosh to see if they could assist the Claimant in getting an ambulance.McIntosh to see if they could assist the Claimant in getting an ambulance. This This is supported by the fact that Mr McIntosh followis supported by the fact that Mr McIntosh followed up his call to the police even ed up his call to the police even after the Claimant had left the branchafter the Claimant had left the branch.. We find this corroborates Mr McIntosh’s We find this corroborates Mr McIntosh’s version of events in that version of events in that he was concerned about the Claimant’s welfare.he was concerned about the Claimant’s welfare.[184]TheThere is no evidence to suggest that Mr McIntosh would not have done the re is no evidence to suggest that Mr McIntosh would not have done the same same if heif he waswas in a situation involving a personin a situation involving a person who did not have who did not have aa disabilitydisability. . There was simply no evidence put forward by the Claimant to support this There was simply no evidence put forward by the Claimant to support this allegation.allegation. WeWe therefore concludetherefore conclude that the Claimant has not proven facts from that the Claimant has not proven facts from which a tribunal can conclude that discrimination has occurred.which a tribunal can conclude that discrimination has occurred. Harassment Harassment[185]The The same applies to harassment in that the only same applies to harassment in that the only allegation that remains is that allegation that remains is that of Mr McIntosh calling the policeof Mr McIntosh calling the police..[186]We repeat paragraphs 181 and 182 above and We repeat paragraphs 181 and 182 above and iin light ofn light of these considerations,these considerations, we find we find the Claimant’s response to this the Claimant’s response to this waswas unreasonable. The claim of unreasonable. The claim of harassment fails.harassment fails. Failure to make reasonable adjustments Failure to make reasonable adjustments[187]We conclude that theWe conclude that the Respondent did have aRespondent did have a PCPPCP in existencein existence of requiring of requiring removal of chickens from a raised removal of chickens from a raised ovenoven. . We We conclude that in respect of the conclude that in respect of the complaints before uscomplaints before us, this PCP was not applied to the Claimant., this PCP was not applied to the Claimant.[188]In respect of the incident on the 23In respect of the incident on the 23rdrd April,April, we repeatwe repeat our coour conclusions atnclusions at paragraph paragraph 7575. We accept Mr McIntosh requested the Claimant to remove the . We accept Mr McIntosh requested the Claimant to remove the chickenschickens, however, however she was not denied she was not denied the agreed the agreed assistanceassistance and it was in fact and it was in fact Thomas who removed the chickens on that dayThomas who removed the chickens on that day.. Case No. 2206172/2022[189]The Claimant presented no evidence that she hadThe Claimant presented no evidence that she had requested or that she hadrequested or that she had been removed from all heavy lifting for a period of approximately 6 months. The been removed from all heavy lifting for a period of approximately 6 months. The contemporaneous documentary evidenccontemporaneous documentary evidencee,, including the wellness including the wellness form form completed in March 2022completed in March 2022 and the evidence of Mr Miah, her line Manager at the and the evidence of Mr Miah, her line Manager at the relevant time does not support this assertion from the Claimantrelevant time does not support this assertion from the Claimant..[190]We conclude that tWe conclude that the Respondent took all reasonable steps to put in place he Respondent took all reasonable steps to put in place appropriate appropriate arrangements including Mr Miah offering arrangements including Mr Miah offering the Claimant an the Claimant an adjustmeadjustment bynt by carrycarryinging out light duties and movout light duties and movinging away from away from the the meat/fish and meat/fish and bake offbake off countercounter. The Claimant refused this proposed . The Claimant refused this proposed reasonable adjustment reasonable adjustment as she wanted to await the outcome of her physiotherapy appointment. In the as she wanted to await the outcome of her physiotherapy appointment. In the meantimemeantime,, sheshe stated that shestated that she was fit to carry out her duties with thewas fit to carry out her duties with the agreed the agreed the adjustments of an adjustments of an additional person assisting her in the morningsadditional person assisting her in the mornings. .[191]The ClThe Claimant’s claim aimant’s claim for a failure to make reasonable adjustments does not for a failure to make reasonable adjustments does not succeed.succeed. Unfair dismissal Unfair dismissal -- The principal reason The principal reason[192]WeWe conclude that the Claimant was dismissed by reason of conclude that the Claimant was dismissed by reason of mismiscconductonduct, which , which was a potentially fair reason for dismissal. was a potentially fair reason for dismissal.[193]The next question is the three stages in the BHS v Burchell case. First, did the The next question is the three stages in the BHS v Burchell case. First, did the respondent reasonably believe that the claimant committed the misconduct? respondent reasonably believe that the claimant committed the misconduct? WWe concludee conclude that Mr Abai clearly believed thathat Mr Abai clearly believed that the Claimant was guilty of t the Claimant was guilty of seriousserious misconduct and had reasonable grounds on which to sustain that belief. misconduct and had reasonable grounds on which to sustain that belief. The Claimant has not sought to challenge thatThe Claimant has not sought to challenge that..[194]Second, was that belief held on reasonable grounds?Second, was that belief held on reasonable grounds? We conclude that Mr We conclude that Mr Abai held that belief on reaAbai held that belief on reasonable groundssonable grounds. . Mr AbaiMr Abai considered that considered that throughout the two throughout the two hours of the Claimant shouting and screaming, Mr McIntosh hours of the Claimant shouting and screaming, Mr McIntosh was trying to help hewas trying to help herr, for which the Claimant refused. He clearly considered , for which the Claimant refused. He clearly considered the impact of the impact of the Claimant’sthe Claimant’s back pain but felt this did not justify the aggressive back pain but felt this did not justify the aggressive nature of her behaviour, particularly screaming and shouting at Mr McIntosh.nature of her behaviour, particularly screaming and shouting at Mr McIntosh. Case No. 2206172/2022 W We accept that e accept that a factor in a factor in Mr AbaiMr Abai’s mi’s mindnd was was that this was not the first time the that this was not the first time the Claimant had reacted aggressivelyClaimant had reacted aggressively by shoutingby shouting atat a managera manager. . The Claimant The Claimant had shouted at Mhad shouted at Mrr Gilbert Gilbert a few weeks prior to this incident, this was put to her a few weeks prior to this incident, this was put to her in in her interview with Mr Mason and she was given a full her interview with Mr Mason and she was given a full opportunity to respondopportunity to respond.. In respect of this incident the Claimant In respect of this incident the Claimant admitted to raising her voiceadmitted to raising her voice because of because of her emotions as she felt she was not being listened to. her emotions as she felt she was not being listened to.[195]Third, was there a fair and reasonable investigation? We find that there was. Third, was there a fair and reasonable investigation? We find that there was. Mr Mr MasonMason carried out a thorough investigation and obtained statementcarried out a thorough investigation and obtained statementss from all from all relevant witnessesrelevant witnesses. . The Claimant confirmed under cross examination that there The Claimant confirmed under cross examination that there werwere no other witnesse no other witnesseses, who, who should have been spokenshould have been spoken to.to.[196]We conclude that the RespondentWe conclude that the Respondent carried out as much investigation as was carried out as much investigation as was reasonable in the circumstances.reasonable in the circumstances. This is exemplified by the fact that the This is exemplified by the fact that the investigation meetings and the disciplinary hearings were both adjournedinvestigation meetings and the disciplinary hearings were both adjourned in in order for further witness evidence and, in the case of the disciplinary hearing, order for further witness evidence and, in the case of the disciplinary hearing, further further occupational healthoccupational health advice to be obtained.advice to be obtained.[197]Finally the question is whether dismissal was a fair sanctionFinally the question is whether dismissal was a fair sanction and within the and within the band of reasonable band of reasonable responsesresponses.. On the evideOn the evidence before nce before us weus we conclude that the conclude that the dismissing officer did not act unreasonably and reached a conclusion open to a dismissing officer did not act unreasonably and reached a conclusion open to a reasonable employer in all the circumstances. reasonable employer in all the circumstances.[198]Whilst a reasonable employer may well haWhilst a reasonable employer may well have given the Claimant a final ve given the Claimant a final warningwarning,, given the given the Claimant’s length of time with the employer and Claimant’s length of time with the employer and the the mitigating circumstances surrounding the Claimant’s back pain,mitigating circumstances surrounding the Claimant’s back pain, an equally an equally reasonable employer in our view could choose not toreasonable employer in our view could choose not to,, given the facts before given the facts before themthem. . In the opinion of the Respondent, tIn the opinion of the Respondent, thhe information before e information before it,it, gave rise to gave rise to serious conduct concerserious conduct concernnss.. The The Claimant did not accept that her behaviour was Claimant did not accept that her behaviour was inappropriate and the Respondent could not be satisfied that it would not be inappropriate and the Respondent could not be satisfied that it would not be repeated. repeated.[199]Given the circumstancesGiven the circumstances,, we concluded that the Respondent acted fairly and we concluded that the Respondent acted fairly and reasonably in dismissing the Claimant. reasonably in dismissing the Claimant. Case No. 2206172/2022 Procedural unfairness Procedural unfairness[200]The Claimant complains of procedural unfairness in relation to her dismissalThe Claimant complains of procedural unfairness in relation to her dismissal in in that she was only given 7 days to Appeal and she advised Mr Athat she was only given 7 days to Appeal and she advised Mr Abai that she bai that she was going on holidaywas going on holiday and would be out of the country. We concluded in our and would be out of the country. We concluded in our findings earlier that the Claimant remained in the country findings earlier that the Claimant remained in the country for a few days prior to for a few days prior to her flying abroad. If she had trouble accessing the her flying abroad. If she had trouble accessing the respondent’s respondent’s Appeal portalAppeal portal,, she she could have made contact in some other way or she could have requested could have made contact in some other way or she could have requested an extension of time in which to respond. She did neither an extension of time in which to respond. She did neither and an appeal was and an appeal was never presented.never presented. In light of this weIn light of this we do not find any procedural irregularities in do not find any procedural irregularities in relation to the dismissal prelation to the dismissal process.rocess. Discrimination arising out of disability Discrimination arising out of disability –– Section 15 Section 15[201]There are two pleaded There are two pleaded ‘things’‘things’ which are said to arise in consequence of the which are said to arise in consequence of the Claimant’s alleged disability: Claimant’s alleged disability:• The need for an adjustment to her duties• The need for an adjustment to her duties• The Claimant’s conduct on 24 April 2022 (including screaming and crying)• The Claimant’s conduct on 24 April 2022 (including screaming and crying)[202]We find that both matters arose outWe find that both matters arose out of the Claimant’s disability. of the Claimant’s disability. The need for an The need for an adjustment to the Claimant’s duties clearly arose adjustment to the Claimant’s duties clearly arose outout of her disabilityof her disability, although , although we have concluded earlier that the we have concluded earlier that the Respondent did not fail in its duty to make Respondent did not fail in its duty to make reasonable adjustmentreasonable adjustments on 23 April 2022s on 23 April 2022..[203]In relation to the Claimant’s conduct we find that In relation to the Claimant’s conduct we find that her disability had more thanher disability had more than aa trivial influence on her conduct and are thus satisfied that trivial influence on her conduct and are thus satisfied that it arose in it arose in consequence of her disability.consequence of her disability. We concludeWe conclude however,however, that the that the Claimant’s Claimant’s disability was not the only cause of the Claimant’s conduct and whilst pain may disability was not the only cause of the Claimant’s conduct and whilst pain may have have caused some of the screacaused some of the screaming and crying, we do not accept the shouting ming and crying, we do not accept the shouting and aggressive behaviour displayed towards Mr McIntosh was caused by the and aggressive behaviour displayed towards Mr McIntosh was caused by the Claimant’s back pain.Claimant’s back pain. The Claimant has presented no evidence, medical or The Claimant has presented no evidence, medical or Case No. 2206172/2022 otherwise to support any conclusion that her back pain caused h otherwise to support any conclusion that her back pain caused her to er to behave behave as she did.as she did. Was there unfavourable treatment Was there unfavourable treatment[204]The Claimant states that The Claimant states that Mr McIntosh’s actions on 24 April 2022 Mr McIntosh’s actions on 24 April 2022 have been have been done to her because of done to her because of herher need for an adjustment.need for an adjustment. As per our findings earlier, As per our findings earlier, the only allegation that the only allegation that remains for considerationremains for consideration is that relating to the police is that relating to the police being called. In terms of the police being called because of the Claimant’s being called. In terms of the police being called because of the Claimant’s requirement for adjusted dutiesrequirement for adjusted duties, w, we accept the Respondent’s submissie accept the Respondent’s submissions that ons that Mr McIntosh did not tell the police that the Claimant had said she would kill Mr McIntosh did not tell the police that the Claimant had said she would kill herself because she needed adjusted duties.herself because she needed adjusted duties. The Claimant has presented no The Claimant has presented no evidence to support her assertion that Mr McIntosh did the things that she evidence to support her assertion that Mr McIntosh did the things that she alleges because he walleges because he was trying to cover up his actions from 23 April. as trying to cover up his actions from 23 April.[205]The Claimant states that she wasThe Claimant states that she was dismissed dismissed because of because of herher actions on 24 April actions on 24 April 2022. It is accepted that 2022. It is accepted that the Claimant’s the Claimant’s conduct on 24 April 2022conduct on 24 April 2022 was the was the reason for dismissal.reason for dismissal. We have concludedWe have concluded earlierearlier thatthat the Claimant’s disability the Claimant’s disability hadhad more than a trivialmore than a trivial influence oninfluence on herher conduct,conduct, as a result we as a result we tthen went on to hen went on to consider whetherconsider whether the the dismissal was a proportionate means of achieving a dismissal was a proportionate means of achieving a legitimate aim. legitimate aim. Justification Justification –– Legitimate aim Legitimate aim[206]The following legitimate aims were identified by the Respondent: The following legitimate aims were identified by the Respondent:(a) (a) Ensuring a safe and appropriate working environment for employees and Ensuring a safe and appropriate working environment for employees and others others(b) Protecting employees and others from violence or threats of violence (b) Protecting employees and others from violence or threats of violence(c) (c) Ensuring employees maintain standards of conduct Ensuring employees maintain standards of conduct(d) Protecting reputation, brand and business interests (d) Protecting reputation, brand and business interests(e) Ensuring employees aren’t subjected to unnecessary health risks (e) Ensuring employees aren’t subjected to unnecessary health risks(f) (f) Ensuring safety in the workplaceEnsuring safety in the workplace Case No. 2206172/2022[207]WeWe were acutely aware of the impact dismissal had upon the Claimant and were acutely aware of the impact dismissal had upon the Claimant and wewe balanced that as against the impact upon the Respondentbalanced that as against the impact upon the Respondent[208]WeWe considered matters objectively bearing in mind that the onus is on the considered matters objectively bearing in mind that the onus is on the Respondent to show that the dismissal was a proportiRespondent to show that the dismissal was a proportionate means of achieving onate means of achieving a legitimate aim. a legitimate aim. WeWe reached reached ourour own judgment as to whether the measure own judgment as to whether the measure was reasonably necessary in light of the aims relied upon. was reasonably necessary in light of the aims relied upon.[209]In In ourour judgment, the Claimant was dismissed because of her judgment, the Claimant was dismissed because of her inappropriate inappropriate conductconduct.. In terms of the legitimate aims being pursuedIn terms of the legitimate aims being pursued, we find that , we find that aims a, aims a, b, c b, c and f were metand f were met. . For completeness, wFor completeness, we are not satisfied that aims d and e, e are not satisfied that aims d and e, relating to brand reputation and health risks to employees relating to brand reputation and health risks to employees were relevant were relevant legitimate aims in relation to the facts of this matterlegitimate aims in relation to the facts of this matter..[210]The Respondent sought to apply their policies and procedures in a manner The Respondent sought to apply their policies and procedures in a manner which was cwhich was consistent with the way in which they treated others. There is no onsistent with the way in which they treated others. There is no evidence that the Claimant was treated inconsistently.evidence that the Claimant was treated inconsistently. The Respondent had The Respondent had considered steps short of dismissalconsidered steps short of dismissal i.e. a final written warningi.e. a final written warning, however it had , however it had rruled thuled thisis out on the basis that out on the basis that as the Claimant did not accept her behaviour as the Claimant did not accept her behaviour was was inappropriateinappropriate and and the Respondent had no assurance that the conduct the Respondent had no assurance that the conduct would not repeat itself.would not repeat itself.[211]We repeat our conclusions in paragraphs 192 and 196 We repeat our conclusions in paragraphs 192 and 196 and conclude that iand conclude that it is t is credible that credible that Mr AbaiMr Abai dismissed the dismissed the CClaimant for thlaimant for theseese reasonreasonss becausebecause ofof the the evidence before himevidence before him..[212]IIn light of our conclusions above, in light of our conclusions above, it is our judgment that the Claimant’s t is our judgment that the Claimant’s dismissal was a proportionate means of achieving a legitimate aim, and the dismissal was a proportionate means of achieving a legitimate aim, and the claim under section 15 is accordingly dismisclaim under section 15 is accordingly dismissedsed.. ____________________________________________________ Employment Judge