Ms Y Whittaker-Khan v Capital City College Group: 2209506/2023
EMPLOYMENT TRIBUNALS
Case No 2209506/2023
Between
Ms Y Whittaker-KhanClaimantCapital City College GroupRespondent
Before
Employment Judge A M Snelson
Members
Mr P MadelinMs Z DarmasDate 13 August 2025
JUDGMENT
Ms Z Darmas On hearing Mr K McInerney, counsel, on behalf of the Claimant and Mr A Johnston, counsel, on behalf of the Respondent, the Tribunal determines that:(1) The Respondent is correctly identified as shown above and the claim form and title of the proceedings are amended accordingly.(2) The Claimant’s complaint of failure to make reasonable adjustments is not well-founded.(3) The Claimant’s complaints of discrimination arising from disability is not wellfounded.(4) The Claimant’s complaint of victimisation is not well-founded.(5) The Claimant’s other claims having already been dismissed, the proceedings as a whole are dismissed.
REASONS
[1]The Respondent (now correctly named as appears above, we were told) is the corporate vehicle for a group of further education colleges which provide education and training across three sites in London.[2]The Claimant was continuously employed by the Respondent between April 2002 and her dismissal on the stated ground of incapacity communicated by a letter dated 6 January 2023.1[3]By her claim form presented on 25 May 2023, the Claimant brought a series of claims under the Employment Rights Act 1996 and the Equality Act 2020 (‘the 2020 Act’).[4]In its response form, the Respondent resisted the claims on their merits and on the ground that they had been brought out of time.[5]At a hearing before Employment Judge2 Adkin on 6 October 2023 at which both parties were represented by counsel, various rulings were made the effect of which was to amend the claim form to add complaints of victimisation, indirect disability discrimination and failure to make reasonable adjustments and to delete (whether by strike-out or pursuant to a substantive determination as to jurisdiction is not clear from the documents before us) all other pleaded claims. The judge also approved a list of issues which was agreed between counsel.[6]One effect of the hearing on 6 October 2023 was that it disposed of all outstanding time issues: the judge held the only three claims permitted to proceed (all of which were added by amendment) to be brought in time (no doubt on ‘just and equitable’ grounds). This explains why the list of issues made no reference to any jurisdictional issue.3[7]The matter next came before a full Tribunal chaired by EJ Woodhead on 17 June 2024, in the form of a final hearing. Unfortunately, for reasons which do not now matter, the trial could not proceed. Having converted the fixture to a private preliminary hearing, the judge turned to case management. His first step was to permit the Claimant to amend her case to specify more fully(a) the impairments relied on as disabilities and(b) the ‘provisions, criteria or practices’ on which the complaints of indirect discrimination and failure to make reasonable adjustments were founded. Secondly, he gave further case management directions and re-listed a final hearing for seven days commencing on 8 May 2025. The amendments resulted in a further version of the list of issues which was also ultimately agreed.[8]The re-listed trial came before us on 12 May this year. The Claimant was represented by Mr McInerney, counsel, and the Respondents by Mr Johnston, counsel. Unfortunately, it had not been possible to field a three-member Tribunal to sit for the entirety of the seven-day allocation, and we were left with only five days. It was, nonetheless, agreed that it was imperative to get on with the case and, at the very least, hear the evidence and closing submissions. With the cooperation of 1 The evidence was not entirely clear as to when the letter was received. According to the Claimant’s witness statement it reached her on 3 January, which seems unlikely. At all events, it appears to have arrived in early January 2023. It purported to terminate her employment on 31 December 2022 but it is elementary that a dismissal is not effective before the employee receives notice of it. 2 Hereafter the abbreviation EJ will be used. 3 To put it another way, the judge elected to determine the time points (and gave an oral judgment on them), rather than, in accordance with the Galilee line of authority, permitting amendment without prejudice to the Respondent’s right to run a time-based defence to them at trial. counsel, that ambition was realised. Judgment was reserved and the Tribunal met in private session on 5 August this year to complete its deliberations.[9]By then, the shape and scope of the case had changed again. This was the consequence of two developments during the trial:(a) our grant of permission to the Claimant to amend the claim form again, this time to add a complaint of discrimination arising from disability in respect of the dismissal (including the rejection of the internal appeal); and(b) the withdrawal of the indirect disability discrimination claim. The Legal Framework Failure to make reasonable adjustments
The Legal Framework
[10]So far as material, the 2010 Act, s20 provides:(1) Where this Act imposes a duty to make reasonable adjustments … a person on whom the duty is imposed is referred to as A.(2) The duty comprises the following three requirements.(3) The first requirement is a requirement, where a provision, criterion or practice4 of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. In this context, ‘substantial’ means ‘more than minor or trivial’ (s212) and a ‘relevant matter’ means employment (sch 8, para 5(1)).[11]Failure to comply with a duty to make reasonable adjustments amounts to discrimination (s21(2)).[12]The reasonable adjustments jurisdiction is directed to ‘steps’ required to counterbalance disadvantage. It does not oblige employers to engage in specific mental processes or carry out particular investigations (see Tarbuck v Sainsbury’s Supermarkets Ltd [2006] IRLR 664 EAT). Of course, the employer who does not ask appropriate questions or take suitable advice may well be found liable for failing to make reasonable adjustments, but that will be because, for want of the necessary information or advice, he or she failed to take a reasonable step to mitigate the effect on the disabled employee of the relevant disadvantage. The failure to inquire is not, of itself, capable of standing as a failure to make reasonable adjustments.[13]More generally, we remind ourselves that the higher courts have often stressed the importance of a methodical approach to the reasonable adjustments jurisdiction (see eg Environment Agency v Rowan [2008] ICR 218 EAT). Discrimination arising from disability[14]Discrimination arising from disability (to use the convenient shorthand) is covered by the 2010 Act, s15, which, so far as material, provides as follows: 4 We will adopt the abbreviation ‘PCP’ from here on.(1) A person (A) discriminates against a disabled person (B) if – (a) A treats B unfavourably because of something arising in consequence of B’s disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably be expected to know, that B had the disability.[15]In Pnaiser v NHS England [2016] IRLR 170 EAT, Simler J (as she then was), sitting in the EAT, summarised the meaning and effect of s15(1)(a) as follows (para 31): In the course of submissions I was referred by counsel to a number of authorities … From these authorities, the proper approach can be summarised as follows:(a) A Tribunal must first identify whether there was unfavourable treatment and by whom: in other words, it must ask whether A treated B unfavourably in the respects relied on by B. No question of comparison arises.(b) The Tribunal must determine what caused the impugned treatment, or what was the reason for it. The focus at this stage is on the reason in the mind of A. An examination of the conscious or unconscious thought processes of A is likely to be required, just as it is in a direct discrimination case. …(c) Motives are irrelevant. The focus of this part of the enquiry is on the reason or cause of the impugned treatment …(d) The Tribunal must determine whether the reason/cause … is “something arising in consequence of B’s disability”. That expression ‘arising in consequence of’ could describe a range of causal links. Having regard to the legislative history … the causal link between the something that causes unfavourable treatment and the disability may include more than one link. … Victimisation[16]By the 2010 Act, s27, victimisation is defined thus:(1) A person (A) victimises another person (B) if A subjects B to a detriment because – (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.(2) Each of the following is a protected act – … (a) making an allegation (whether or not express) that A or another person has contravened this Act.[17]For the purposes of s27(2)(d), an allegation which is false and made in bad faith will forfeit protection (s27(3)). Subject to that, protection will attach to an allegation even if it is later shown not be well-founded, provided that it complains of conduct capable in law of amounting to a contravention of the 2010 Act (Waters v Commissioner of Police of the Metropolis [1997] ICR 1073 CA). When considering whether a claimant has been subjected to particular treatment ‘because’ he or she has done a protected act, the Tribunal must focus on ‘the real reason, the core reason’ for the treatment; a ‘but for’ causal test is not appropriate: Chief Constable of West Yorkshire v Khan [2001] ICR 1065 HL, para 77 (per Lord Scott of Foscote). On the other hand, the protected act need not be the sole reason: it is enough if it contributed materially to the outcome (Nagarajan, cited above). Protection against discrimination and victimisation[18]Discrimination is prohibited in the employment field by s39 which, so far as relevant, states: (2) An employer(a) (A) must not discriminate against an employee of A’s(b) (B) – …(c) by dismissing B;(d) by subjecting B to any other detriment. A ‘detriment’ arises in the employment law context where, by reason of the act(s) complained of a reasonable worker would or might take the view that he or she has been disadvantaged in the workplace. An unjustified sense of grievance cannot amount to a detriment (Shamoon v Chief Constable of the RUC [2003] IRLR 285 HL).[19]By s39(5) it is provided that a duty to make reasonable adjustments applies to an employer.[20]Employees enjoy parallel protection against victimisation under s39(4)(d).[21]The 2010 Act, by s136, provides:(1) This section applies to any proceedings relating to a contravention of this Act.(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.(3) But subsection (2) does not apply if A shows that A did not contravene the provision.[22]On the reversal of the burden of proof we have reminded ourselves of the case-law decided under the pre-2010 Act legislation (from which we do not understand that Act to depart in any material way), including Igen Ltd v Wong [2005] IRLR 258 CA, Laing v Manchester City Council [2006] IRLR 748 EAT, Madarassy v Nomura International plc [2007] IRLR 246 CA and Hewage v Grampian Health Board [2012] IRLR 870 SC. In the last of these, Lord Hope warned (as other distinguished judges had done before him) that it is possible to exaggerate the importance of the burden of proof provisions, observing (para 32) that they have ‘nothing to offer’ where the Tribunal is in a position to make positive findings on the evidence. In Efobi v Royal Mail Group Ltd [2021] 1 WLR 3863, Lord Leggatt passed similar comments, adding (para 41): I think there is a risk of making overly legal and technical what really is or ought to be just a matter of ordinary rationality. So far as possible, tribunals should be free to draw, or decline to draw, inferences from the facts of the case before them without the need to consult law books before doing so. But where the burden of proof provisions have a part to play, we take as our principal guide the straightforward language of s136. Where there are facts capable, absent any other explanation, of supporting an inference of unlawful discrimination, the onus shifts formally to the employer to disprove discrimination. All relevant material, other than the employer’s explanation relied upon at the hearing, must be considered.[23]If and in so far as it is useful to have regard to the burden of proof provisions, the correct approach in the particular context of a reasonable adjustments claim is explained in the judgment of the EAT (Elias J and members) in Project Management Institute v Latif [2007] IRLR 579, paras 44-57. To shift the burden to the employer, the Claimant must prove facts from which it could be inferred in the absence of an adequate explanation that a duty to make an adjustment had arisen and had been breached. Where the burden is transferred, it falls to the employer to show that, on a proper interpretation of the facts, no duty arose and/or there was no breach (for example because the adjustment(s) contended for would not have been reasonable). The Claims and Issues[24]The result of the somewhat unsatisfactory case management history was that the Claimant ultimately pursued claims of failure to make reasonable adjustments, discrimination arising from disability and victimisation.[25]Although there was some confusion about the matter up to the end of the hearing, Mr Johnston eventually confirmed that his client admitted that the Claimant had had PTSD at all relevant times, that that amounted to a disability, and that no knowledge-based defence would be run. Indeed, we were told that a concession had been made in correspondence before the trial.[26]Accordingly, the reasonable adjustments claim posed three questions.(1) Could the Claimant make out a relevant PCP?(2) If so, could she make out the necessary ‘substantial disadvantage’?(3) If so, what steps (if any) ought the Respondent to have taken to avoid the disadvantage?[27]The discrimination arising from disability claim also gave rise to three questions.(1) Did the Respondent subject the Claimant to unfavourable treatment (dismissal)?(2) If so, did it do so because of something arising in consequence of the Claimant’s disability?(3) If so, could the Respondent escape liability by showing that the treatment amounted to a proportionate means of achieving a legitimate aim?[28]The victimisation claim posed two questions.(1) Did the Claimant do one or more of the protected acts relied upon?(2) If so, was she subjected to detrimental treatment in the form of dismissal and/or rejection of her internal appeal because she had done the protected act(s)?
Evidence
[29]The Tribunal received oral evidence from the Claimant and, on behalf of the Respondent, Mr David Smith, Assistant Director of Student Services, Mr Robin Hindley, Vice-Principal of the College of Haringey and North East London, Mr Kurt Hintz, Executive Principal, Ms Philippa Cooke, Head of Hub – Angel, and Ms Trovene Hartley, Head of HR Operations.[30]In addition to witness evidence, we read the documents to which we were referred in the four-volume bundle of documents.[31]We also had the benefit of a chronology, a cast list and the written closing submissions of both advocates. The Primary Facts[32]The evidence was extensive. We have had regard to all of it. Nonetheless, it is not our function to recite an exhaustive history or to resolve every evidential conflict. The facts essential to our decision we find as follows. The Supporting Attendance Policy[33]In or about July 2021, the Respondent approved and adopted a Supporting Attendance Policy ‘the SAP’. This replaced an earlier Sickness Absence Policy. Both were unremarkable documents, making provision for a graduated system of reviews according to the level of sickness absence reached, culminating in a power of dismissal at the final stage. Under the SAP, the following four ‘review points’ applied:• Six days of absence within the previous three months• Three separate incidents of absence within the previous three months• 12 days of absence within the previous 12 months• Six separate incidents of absence within the previous 12 months. The main narrative[34]The Claimant joined the Respondent in 2002 in the capacity of Youth Worker, under a full-time contract. Hers was a student-facing role.[35]The Respondent underwent a restructuring in late 2020, at least one purpose of which was to align student services to a campus model. One consequence of the restructuring was that the Claimant’s role changed to that of Engagement Officer based at the Angel site and she began reporting to Ms Cooke (already mentioned). In turn, Ms Cooke reported to Mr David Smith, (also mentioned above). The Engagement Officer position was also a student-facing role. As the job title suggests, a central part of the post-holder’s function was to engage with the students and run ‘enrichment programmes’ to develop their skills and prepare them for the world of work.[36]The Claimant strongly disapproved of the restructure and feels to this day that it had negative consequences for her and, it seems, the organisation generally. So far as we are aware, she did not question the Respondent’s right to implement it.[37]Between 19 August 2020 and 2 February 2021 the Claimant was signed off work, initially with a whiplash injury but latterly on account of Covid-19 symptoms. Later she was diagnosed with Long Covid.[38]A further fit note issued on 5 February 2021 cited Long Covid symptoms and suggested reducing the Claimant’s working hours temporarily to two hours per day and it was agreed that this pattern would continue for a fortnight.[39]Dealings between the Claimant and Ms Cooke were difficult from the start. In early February 2021 there was a disagreement about whether a planned meeting or call intended to take place on or around 11 February 2021 could be attended by the Claimant’s trade union adviser. Ms Cooke ruled this out on the basis that the meeting was not formal. The meeting did not take place.[40]Between 15 February and 14 March 2021 the Claimant was signed off again, this time with ‘Fatigue – Long Covid’.[41]The extended period of sick leave resulted in the Claimant’s pay being reduced to half rate with effect from 23 February 2021.[42]Between 26 February 2021 and 31 March 2021 the Claimant was suspended on full pay pending an investigation into an allegation of a possible conflict of interest in connection with a work-related project. She was cleared in the investigation report released on 31 March 2021, which found no case to answer.[43]On 31 March 2021 the Claimant produced a further fit note, to run from 29 March to 25 April 2021, citing ‘Long Covid and stress’, with a recommendation for a ‘return to work’ at two hours per week. It seems that she worked two hours per week over that period.[44]Ms Cooke invited the Claimant to attend an informal return to work meeting on 26 April 2021, but she declined on the ground that she was not permitted to be accompanied.[45]On 28 April 2021 the Claimant produced a further fit note, again citing ‘Long Covid and stress’, to run for a further four weeks, also suggesting a ‘phased return to work’ at the rate of two hours per week. It seems that this pattern was again implemented.[46]On 24 May 2021, a further four-week fit note citing the same conditions proposed a ‘phased return to work’ at the rate of four hours per week. It seems that this recommendation was also implemented.[47]On 25 May 2021 the Claimant submitted a grievance which included allegations of direct race discrimination.[48]In response to a request by the Claimant, Ms Cooke advised her on 27 May 2021 that she would be permitted to park on campus until the end of term (1 July 2021) in order to support her ‘phased return to work’. (The Respondent’s consistent position, on which, we think, it was not seriously challenged thereafter was that(a) it was not practicable to extend the permission beyond 1 July and(b) in any event, there was ample car parking availability locally.)[49]On 30 June 2021 a hearing was conducted in order to investigate the Claimant’s grievance.[50]On 12 July 2021 a Stage I Sickness Absence Review Meeting was held in accordance with the SAP. Three days later the outcome of the meeting was announced. Among other things, the Claimant was advised that the Respondent would not be able to accommodate her working four hours per week indefinitely and that, from then on, her 31 unworked weekly hours would be logged as sickness absence for the purposes of the SAP. (No sickness absence was recorded in the period between 14 March and 12 July 2021 and, as we understand it, the Claimant received full pay throughout that period.)[51]In late July the Claimant received notice of the outcome of her grievance. Most of her complaints were rejected. One was partially upheld. The investigator did not accept that any evidence of discrimination was made out. The Claimant appealed.[52]On 19 August 2021 the Claimant was to work a morning session (still on the four-hours-per-week pattern). She pressed a request for a parking space on the site but was told none was available (in line with the advice given in May). She then proposed that she would attend by taxi or minicab, provided that the Respondent met the cost. She was told that the Respondent was not in a position to meet such costs. In addition, she told Ms Cooke that she was not prepared to attend any meetings with her until after ‘mediation’ had taken place. There had never been any agreement for mediation in any form.[53]It seems that in or around August 2021 the Claimant ceased attending the Angel site. Her request for permission to work from home from September 2021 was expressly refused, on the basis that her role was student-facing. She did not resume working at the Angel site until 6 December 2021 or thereabouts.[54]A Stage 2 Sickness Absence Review Meeting was arranged for 14 October 2021. The Claimant did not attend.[55]A fresh date was fixed, 21 October 2021. Again, the Claimant did not attend.[56]A third date was scheduled, for 11 November 2021. The invitation was issued on 3 November 2021.[57]On the same day, an Occupational Health report was prepared by Ms Wendy Thompson, OH Adviser. In summary, she noted the various symptoms which the Claimant had reported, describing them as ‘unpredictable and relapsing’, alluded to her complaints of workplace stress associated (in her view) with a relationship with her line manager which had broken down, and made two key recommendations: first, that a workplace stress risk assessment be conducted as a matter of urgency; secondly, that arrangements be made for a return to full-time working over a 10- week period (admittedly longer than would be the norm). Ms Thompson went on to make several more minor suggestions for other workplace adjustments including the provision of car parking space, a ground floor office with toilet facilities close by, regular breaks and so forth.[58]On 5 November 2021 Ms Hartley (already mentioned), the Respondent’s then Head of HR Operations, advised the Claimant that the 11 November meeting would not be postponed.[59]On 10 November 2021 the Claimant’s trade union representative wrote to the Respondent asking that the forthcoming meeting be ‘set aside’ and declining the request to attend. The proposal was not accepted.[60]The Stage 2 Meeting went ahead on 11 November 2021. It was chaired by Mr Smith. The Claimant did not appear but two trade union representatives attended on her behalf of the Claimant and were permitted to remain for part of the meeting. Ms Cooke was also present.[61]On 12 November 2021 the Claimant’s GP sent to her a ‘To whom it may concern’ letter, which she forwarded to the Respondent. It included the following: Due to Mrs Whittington-Kahn’s symptoms, it would be advised that she is able to park in the college car park, be able to use the lift to access her office, have regular breaks and have flexibility with her working hours. Please consider a change in her line manager.[62]On 25 November 2021 Mr Smith issued his decision on the Stage 2 Meeting. He explained that the Respondent could not agree to the return to work plan proposed in the OH report but could accommodate a phased return over five weeks commencing on 29 November 2021, with the Claimant working one day per week in week one, two days in week two and so on. In addition, support would be offered in the form of access to a disabled toilet, extra training and HR support and regular breaks. Mr Smith’s document also included a ‘Notification of Unacceptable Attendance’ in accordance with the SAP and a reminder that continued unacceptable attendance would be liable to result in a Stage 3 sickness absence review.[63]Although not entirely satisfied with Mr Smith’s terms, the Claimant accepted them and the phased return to work took effect, commencing on or about 6 December 2021.[64]As we have noted the OH report had recommended a stress risk assessment. After discussion, it was agreed that this would be undertaken by Mr Smith (the Claimant having resisted the idea of Ms Cooke being involved). The assessment exercise required in the first instance completion by the Claimant of the appropriate stress risk assessment form. In correspondence between December 2021 and February 2022 Mr Smith did his best to prevail upon her to complete the form. Despite promising to get on with it, she never did.[65]In a further ‘To whom it may concern’ letter, dated 8 February 2022, the Claimant’s GP recommended that she be permitted to work from home ‘as [and] when needed’. The Claimant may well have forwarded this to the Respondent as well. If she did, it did not elicit a response. But the Respondent’s position on homeworking had already been made abundantly clear on a number of occasions. It was very simple: if the Claimant was unfit to work, she should be signed off sick; if she was not unfit to work, she must attend on site to perform her student-facing role.[66]On 28 February 2022 the Claimant left work, advising Ms Cooke that she was unwell with work-related stress. She was then signed off with a stress-related illness until 16 March 2022.[67]The Claimant returned to work on 17 March 2022. She was invited to attend a return to work meeting with Ms Cooke that day, but did not attend.[68]The Claimant was off sick for some three or four days commencing on 25 April 2022. She certified the absence as being on account of ‘cough, cold, flu’. On returning to work on 28 April 2022 she wrote to Ms Hartley complaining about alleged racial discrimination by her line manager and, much more generally, about the alleged failure of the Respondent to implement recommendations of OH and her GP.[69]On 16 May 2022 the Claimant sent an email to Mr Cooke complaining about ‘the level of discrimination and resultant bullying’ and saying that she was reluctant to rely upon her support.[70]On 25 May 2022 the Claimant was absent from work again, this time on the stated ground of work-related stress.[71]On 8 June 2022 the Claimant, accompanied by a trade union representative, met Ms Hartley and complained to her about Ms Cooke’s management. She followed the meeting with an email of 13 June 2022 to Ms Hartley, alleging that Ms Cooke had bullied her, particularly over timekeeping, causing her great anxiety. She referred to ‘a huge layered build-up of what feels like racial bias and bullying’.[72]Also on 13 June 2022 the Claimant wrote a very long email to her trade union representative detailing many concerns including allegations of widespread racism on the Angel campus; questions about Ms Cooke and how she came to be appointed to her role given her allegedly negative behaviour towards ‘so many of the people she manages’; issues about the reorganisation and its effect on her role and duties; her need for advice on ‘next steps’; and sundry other matters.[73]On 18 July 2022 the Claimant wrote again to Ms Hartley to complain about Ms Cooke. On this occasion, her concern was that Ms Cooke had wrongfully marked her as having been off sick on 7 July 2022. This was said to be a further instance of bullying and race discrimination, causing further damage to her health.[74]On 24 July 2022 the Claimant was signed off work owing to cellulitis infection of the leg. The period of sickness absence did not start until 9 August 2022 because she took annual leave in the interim. Subsequent fit notes cited PTSD. She remained on sick leave until her dismissal some five months later.[75]On 27 July 2022 the Claimant sent a grievance to Ms Hartley containing numerous complaints about Ms Cooke, including allegations of bullying, harassment and racial and disability discrimination. Despite many requests, the Claimant refused to engage with the investigation which followed. Ultimately, the investigator proceeded without her input and issued a grievance investigation report on 16 November 2022 in which her complaints were not upheld.[76]On 18 November 2022 the Claimant was invited to attend a Stage 3 Sickness Absence Review Meeting to be held on 2 December 2022. The letter of invitation pointed out that by the date of its issue she had accumulated 106 days of sickness absence in the previous rolling 12-month period.[77]On 24 November 2022 a Consideration for Dismissal Report was issued, which included much fuller detail concerning the Claimant’s sickness absence history.[78]On 28 November 2022 a document setting out the Management Case for the purposes of the Stage 3 Meeting was sent to the Claimant.[79]The meeting set for 2 December 2022 was postponed at the Claimant’s request and rescheduled for 15 December 2022.[80]The Stage 3 meeting went ahead on 15 December 2022 In the form of a video conference call. It was chaired by Mr Hindley (already mentioned), a senior manager employed at a different site who had had no prior interaction with the Claimant. He was supported by Ms Shani Duncan, HR Manager, who took a note. Mr Smith attended as a witness. The Claimant was also present, accompanied by Mr Samuel Ferman, a trade union representative.[81]Mr Smith presented the management case, essentially adopting and developing the points made in the documents of 18, 24 and 28 November 2022. The Claimant maintained that the central problem was that she could not return to work under Ms Cooke’s management. She argued that she was a victim of her intolerable bullying and that grievances relating to that treatment were ongoing. She felt that she could return under a different manager in a healthy and supportive environment. But before doing so she would need medical advice in any event.[82]One point made before us on behalf of the Claimant was that Mr Hindley was not provided with any up-to-date OH evidence. It is common ground that the only, or at all events most recent, OH report was that dated 3 November 2021. The reason for there being no updated report was that requests to the Claimant to grant her consent for a further referral were rejected. We decline to enter into an arid debate about whether she explicitly ‘refused’ consent. She was asked for her consent more than once and did not provide it.[83]Following the meeting Mr Hindley conducted some further enquiries. Among other things, these elicited the fact that there was no ongoing grievance process as the Claimant had claimed.[84]By a letter dated 6 January 2023 Mr Hindley gave his decision on the Stage 3 review. He summarised the Claimant’s sickness absence record and commented critically on what he characterised as her failure to engage with her line manager or management generally. He noted the adverse impact of her extended absence on the service which she was employed to provide and on her colleagues. He also pointed out that, on her own case as presented at the hearing, there was no solution in sight, given her stated inability to return under Ms Cooke. He concluded: Following the meeting and having carefully considered all the information available to me, I considered that you will be unable to achieve and maintain the expected standard of attendance in your current role and that all reasonable adjustments recommended in the OH report had been considered and implemented where appropriate. There has been an adverse impact on our services to learners and provision of support services. On that basis, I have decided that your employment should be terminated …[85]Mr Hindley’s evidence was that he was not aware at any material time that the Claimant had made any complaint or allegation of discrimination. He first learned that she had raised a grievance during the Stage 3 meeting of 15 December 2022. He then asked what the grievance was about. In reply, the Claimant did not assert or imply that it included any allegation of discrimination or any other infringement of the 2010 Act. Mr Hindley went on to tell us that, immediately after the meeting, he had spoken with a member of the HR team who had told him that all grievances had been fully investigated and none had any bearing on the issues with which the Stage 3 meeting was concerned. We accept Mr Hindley’s evidence because we find it plausible and have been shown nothing to call it into question.[86]On 16 January 2023 the Claimant appealed against the dismissal. In summary, her grounds were, which she developed in her appeal document, were expressed as follows:• Failure to accommodate or address important reasonable adjustments which were raised, or to fully acknowledge these in Stage 3 meeting• Failure to properly account for disability-related absences• Failure to adjust policy in light of disabilities• Failure to treat Covid-19 related absences differently, and in accordance with recent practice and established precedent• Failure of the College to address concerns raised in relation to safety at work[87]The appeal was assigned to Mr Hintz (already mentioned), Executive Principal. An appeal hearing eventually took place on 31 March 2023. Mr Hindley appeared to answer questions relating to his decision-making and Ms Samantha Liverpool, HR Manager, was present to take a note. The Claimant attended together with Mr Ferman, her trade union representative.[88]A number of points were made by or on behalf of the Claimant. The following appeared to be the most significant.(1) The Claimant’s grievances were outstanding and unresolved.(2) The sickness absence record did not make allowances for the fact that absences attributable to Long Covid and PTSD were, or should be treated as, disability-related absences (although, this said, Mr Ferman acknowledged that there was a difficulty with this argument in so far as it related to PTSD since that condition was not cited until August 2022).(3) The letter of dismissal made no reference to disability.(4) The Claimant would be able to return to work under a different manager (although she went on to add other conditions including provision of parking facilities, compliance with OH recommendations and ‘things like that’).[89]Mr Hindley laid particular emphasis on the duration of the Claimant’s sickness absences and the absence of any prospect of her returning to her role within the foreseeable future.[90]Following the meeting Mr Hintz carried out further investigations which confirmed that there was no outstanding grievance procedure; the Respondent was not in a position to offer parking facilities (but such were available nearby in any event); the Claimant’s Long Covid and PTSD were treated as disabilities and the review points under the SAP were very substantially extended accordingly.[91]One consequence of Mr Hintz’s inquiries after the appeal hearing was that, before reaching his decision, he became aware of the fact that the Claimant had committed the first, sixth and seventh protected acts identified in the list of issues (being, respectively, the grievance of 25 May 2021, the communication to Ms Hartley of July 2022 and the grievance of 27 July 2022), and, in general terms, that these involved allegations against the Respondent of unlawful discrimination.[92]Mr Hintz concluded that the appeal should be dismissed. His letter to that effect dated 25 April 2023 made a number of points. First, he rejected the argument that Mr Hindley had failed to take account of disability-related absences, pointing out that the Long Covid and PTSD (the latter not cited until August 2022) had been treated as disabilities and the review points under the SAP had been massively exceeded. Moreover, there were many absences on grounds which were unrelated to any disability. Secondly, he rejected the argument that the Respondent had failed to give effect to the OH recommendations, noting in terms that many had been implemented and making the further point that the Claimant had refused to engage with the OH advice concerning the stress risk assessment and had refused to provide consent for a second OH referral. Thirdly, he provided a detailed rebuttal of the proposition that any grievance process was outstanding. In conclusion, he upheld Mr Hindley’s ruling as thorough and fair.[93]At the time of the Stage 1 meeting, the Claimant had accumulated 140 days of sickness absence in a rolling period of 12 months. By the Stage 2 meeting, the rolling figure stood at over 158 days. As at the Stage 3 meeting, the figure stood at 116 days. Secondary Findings and Conclusions Rationale for primary findings[94]In arriving at our primary findings we have had careful regard to all the evidence put before us. We have considered the coherence, internal consistency and general plausibility of the witness evidence. We have attached particular importance to contemporary documents. Failure to make reasonable adjustments PCPs[95]The claim as originally formulated rested on a single PCP, namely the ‘sickness absence review triggers’ in the SAP. At the hearing before EJ Woodhead, the Claimant was granted permission to add two further PCPs, the ‘sickness absence review escalation levels’ and ‘dismissal at Level 3’. These were, apparently, seen by the Claimant as separate, free-standing features of the SAP.[96]We regret what appears to us to have been an over-technical and overelaborate approach to formulating the case on reasonable adjustments. It is plain and well-understood on all sides that the nub of the Claimant’s case is this:(a) the SAP was applied to her;(b) its application was, by its nature, disadvantageous to her; and(c) accordingly, the Respondent was under a duty to adjust the way in which it was applied in order to avoid or reduce the disadvantage. That simple case is not helped by framing the PCP by reference to one particular feature of the SAP, still less to a multiplicity of such features. Moreover, as Mr Johnston pointed out, doing so is liable to lead to logical difficulties. Hence the Respondent’s initial (and understandable) objection that the original pleading could not work because, on any view, the SAP review points were adjusted, at least in the sense that they had been greatly exceeded before the Claimant was invited to the Stage 1 meeting and the further meetings which followed. In our judgment the just and pragmatic approach is simply to treat the PCP as operation of the SAP. This does not amount to entering the arena or re-pleading the Claimant’s case for her. It is simply a matter of the Tribunal putting its own interpretation on undisputed facts. Substantial disadvantage?[97]Clearly, operation of the SAP put the Claimant at a substantial disadvantage in the workplace in comparison with persons who were not disabled. As a consequence of her disability, she accrued a very substantial sickness absence record which, under the policy, placed her at risk of being subjected to measures up to and including dismissal. Most non-disabled employees of the Respondent did not find themselves in such jeopardy. Reasonable steps?[98]The Claimant’s case was directed to the decisions taken at Stage 3, namely the decision to dismiss and the rejection of her appeal against dismissal. There was no free-standing complaint of failure to make reasonable adjustments at Stage 1 and/or Stage 2. If there had been, the case would have been pleaded accordingly. And, no doubt, a time-based defence would have been raised.[99]But the fact that we are concerned with decision-making at Stage 3 does not preclude us from having careful regard to what happened at Stage 1 and Stage 2. On the contrary, to fail to do so would lead us into error. Any decision at Stage 3 must take account of the context in which it is to be taken.[100]It seems to us plain that no objection could be made to the decision taken to invite the Claimant to a Stage 1 meeting or to the action taken following that meeting. She had accumulated an enormous period of sickness absence and was working a fraction of her contracted hours (on full pay). She was not under a ‘return to work’ programme as those words are ordinarily understood. There was no prospect of her contracted hours resuming at any future point. The situation was obviously unsustainable.[101]Mr McInerney on behalf of the Claimant focused his submissions on Stage 2. He argued first that it was unfair and contrary to principle to treat contracted hours not worked during the period of four-hours-per-week working as sickness absence. He contended that the proper approach would be to disregard those hours or, at least, to treat them neutrally. This might be done, he suggested, by paying her only for the hours actually worked but not holding the 31 weekly hours not worked against her under the SAP.[102]We cannot accept Mr McInerney’s submission. The difficulty with it is that it offers no prospect of a resolution of the problem. The Respondent had an employee in an important full-time student-facing role who was discharging just over one tenth of her allotted function. There was no evidence (medical or otherwise) tending to suggest any prospect of an improvement in her level of attendance. The Respondent could not reasonably be expected to rely indefinitely on the expensive and disruptive expedient of agency backup. And the simple fact was that the Claimant was not working 31 of her 35 contracted hours because she felt unfit to do so. To categorise her absence as anything other than sickness absence would be to ignore that reality.[103]Mr McInerney’s second argument was that, in any event, the Respondent should have disregarded the Claimant’s disability-related sickness absence, or at least a proportion of it. Largely for the reasons given in relation to his first submission, we are not at all persuaded.[104]In our judgment, the proper course was taken at Stage 2. Mr Smith acted in accordance with the principles underlying the SAP and, we think, the statutory disability discrimination code. He was not persuaded that postponing the problem was any sort of answer. Instead, he set a challenging but achievable phased return to work programme and agreed practical supportive measures. And it is noteworthy that, disappointed as she may have been, the Claimant responded positively and, in short order, resumed her contracted work pattern. We are quite satisfied that what was done at Stage 2 was entirely lawful and gave the parties the best possible chance of a happy resolution of their difficulties. The fact that that outcome eluded them is, to us, a matter of great regret, but not one which reflects adversely on either side.[105]Our analysis of the Respondent’s decision-making at Stage 1 and Stage 2 causes us to reject the Claimant’s complaint of a failure to make reasonable adjustments at Stage 3. On the facts which we have found, it was, to our minds, almost inevitable that a further absence review meeting would be convened and that the outcome would be her dismissal. She had entirely failed to engage with the planned risk assessment. She had rejected the option of seeking a fresh OH opinion. A third period of absence had run without interruption for some four months. There was no prospect in sight of her returning to work. She had given repeated notice of what she presented (entirely unsupported by medical evidence)5 as a constitutional inability to work with her line manager. If, as we find, no sound basis is shown for criticising the route taken by the Respondent up to the Stage 3 meeting, it must, in our view, be acquitted of any failure to make a reasonable adjustment at that stage. The reasons why, in our view, the decision-making at Stage 2 was proper and certainly lawful applied all the more so at Stage 3. In our judgment, it would not have been reasonable for the Respondent to have to take any step other than dismissal at that point. It is, to our minds, hard to see how any measure other than dismissal could have served the interests of fairness and justice.[106]Mr McInerney returned in his closing submissions to the idea that the Respondent was at fault in not assigning to the Claimant a different line manager. EJ Adkin refused her permission to amend her claim to plead that as a reasonable adjustment. It is not a matter which is properly put before the Tribunal. But we would have rejected such a case in any event. The fact that an employee takes strongly against his or her manager is not, save in the most exceptional case and on compelling evidence, a proper reason to place upon the employer a duty to change its managerial structure and reporting lines. It is not the business of the Tribunal to interfere in that sort of way.[107]For all of these reasons, we have reached the very clear conclusion that there is no substance in the complaint of failure to make reasonable adjustments. Discrimination arising from disability Unfavourable treatment?[108]The Claimant relies on her dismissal and the rejection of her appeal against dismissal. Plainly, she establishes unfavourable treatment. Because of something arising in consequence of the Claimant’s disability?[109]Equally, the Claimant makes out the second limb of the statutory test. The dismissal was, we find, ‘because of’ her long sickness absence record, which arose as a direct consequence of her disability (Long Covid and PTSD in particular). Proportionate means of achieving a legitimate aim? 5 A GP’s letter wondering if consideration might be given to a change of line manager is not medical evidence of a psychological or psychiatric block to a patient working with her line manager.[110]Does the Respondent establish its statutory defence by showing that the treatment complained of amounted to a proportionate means of achieving a legitimate aim? The aims relied on by the Respondent are as set out in Mr Johnston’s closing submissions, para 5.5, namely:(i) ensuring satisfactory attendance of its employees; and(ii) the efficient operation of student services at the Respondent’s Angel campus including• enabling students at the Angel Campus to access enrichment for their personal and social development;• ensuring students at the Angel Campers can complete their timetabled enrichment hours;• ensuring that staff and financial resources within student services are allocated effectively for the benefit of the Respondent’s students.[111]Mr McInerney sensibly did not challenge the fact of the Respondent’s stated aims or their legitimacy.[112]As to whether the conduct amounted to a proportionate means of achieving those aims, we have reached the clear conclusion that it did. We rely on our reasoning in relation to the reasonable adjustments claim. Although here the legal burden is upon the Respondent, we regard the outcome as no less clear than in relation to that complaint. Victimisation Protected acts[113]The Claimant relied on as many as seven protected acts, beginning with the grievance of 25 May 2021 and ending with the grievance of 27 July 2022.[114]Mr Johnston rightly accepted that these two communications and the sixth (made in July 2022) each amounted to protected acts.[115]We find that these three acts are established in fact and that, in each case, the Claimant’s communications amounted to protected acts for the purposes of the 2010 Act, s27(2)(d). (We decline to make findings on the other four since they could not have a bearing on our decision.) Detriments?[116]Although there is room for the argument that the Respondent was faced with little choice at Stage 3, viewing the matter from the Claimant’s angle we think it right to treat the outcomes arrived at by Mr Hindley and Mr Hintz as detrimental acts. Detriment(s) done ‘because’ the Claimant had done the protected act?[117]The claim based on Mr Hindley’s decision to dismiss the Claimant falls at once given our finding that he was not at any material time aware of any protected act on her part. Moreover, even if we had found otherwise on the question of knowledge, we would unhesitatingly have rejected the complaint of victimisation against him. There would, in our view, have been simply no basis for inferring that his straightforward and entirely rational decision was somehow vitiated by an unlawful motivation.[118]As we have noted, in the case of the decision on appeal, the decision-maker was aware of the relevant protected acts. But although the Claimant does not have a ‘knockout blow’ here, we are very clear that Mr Hintz’s decision to dismiss the appeal was as free of victimisation as Mr Hindley’s decision at first instance. We see nothing odd or suspect in the process or the outcome at the appeal stage. There is, in our view, no reason to infer any element of victimisation.