Ms A Jinadu v Department for Work and Pensions: 2210563/2022

EMPLOYMENT TRIBUNALS

Case No 2210563/2022

Between

Ms A JinaduClaimant

Department for Work and PensionsRespondent

Before

Employment Judge E Burns

Represented herself for claimant

Tom Kirk (instructed by Counsel) for respondent

Date 16 June 2025

JUDGMENT

The unanimous judgment of the Employment Tribunal is:(1) The Claimant’s complaint that the Respondent failed to comply with a duty to make reasonable adjustments for her succeeds. This was just in relation to the disadvantage from the PCP cited at paragraph 5.2.1 in the list of issues. All of the other complaints about reasonable adjudgments fail and are dismissed.

(2) All of the other legal complaints within the Claimant’s claim fail and are dismissed.

REASONS

[1]This was a claim arising from the Claimant’s employment with the Respondent, a ministerial government department. The Claimant was employed as a Higher Executive Officer (HEO) via the Respondent’s Policy Graduate Scheme in it’s Disability & Work Opportunities Division. Her period of employment began on 4 October 2021 and ended on 16 August 2022. According to the Respondent, the Claimant was dismissed due to failing her probation period as a result of her attendance and performance not meeting the Respondent’s required standards.

[2]It was not in dispute that the Claimant is a disabled person. The Claimant brought claims of direct disability discrimination, discrimination arising from disability, a failure to make reasonable adjustment and disability related harassment. She also brought additional claims of direct race discrimination and race-related harassment by way of an amendment application made on 6 February 2024.

[3]The issues to be determined had been settled over the course of a number of preliminary hearings, which included her making an amendment application. They are attached as an appendix.

[4]In her written closing submissions, the Claimant alleged that the Respondent was in breach of the public sector equality duty found in part 11 of the Equality Act 2010, GDPR and the Data Protection Act 1998 and the Health and Safety at Work Act 1975 and associated regulations. We have not considered such allegations as they are not within the Tribunal’s jurisdiction.

THE HEARING

[5]The hearing was a remote video hearing. From a technical perspective, there were a few minor connection difficulties from time to time. We monitored these carefully and paused the proceedings when required. The participants were told that it was an offence to record the proceedings.

[6]We explained our reasons for various case management decisions carefully as we went along and also our commitment to ensuring that the Claimant was not legally disadvantaged because she was a litigant in person. We regularly explained the process, visited the issues and explained the law when discussing the relevance of the evidence.

[7]In addition, we made adjustments as needed to assist the Claimant due to her disability. This included adjusting the times of the hearing and allowing her to take breaks as needed. The Claimant asked for the hearing to start late on several days as a reasonable adjustment.

[8]The Claimant gave evidence. She provided a written witness statement and also asked us to adopt the contents of her timeline as her evidence.

[9]For the Respondent we heard evidence from:• Julie Williams, Disability Confident Policy Manager (SEO), Claimant’s line manager

• Amanda Wadsworth, Ms Williams’ line manager

• Samantha Hainsworth, Deputy Director for Defined Benefit Pension Policy who made the decision to dismiss the Claimant

• Martha Baker, Deputy Director Health Transformation Programme who dealt with the Claimant’s appeal against dismissal

[10]The tribunal ensured that each of the witnesses, who were all in different locations, had access to the relevant written materials which were unmarked. We were satisfied that none of the witnesses was being coached or assisted by any unseen third party while giving their evidence.

[11]There was an agreed trial bundle of 1945 pages which included some additional documents which were admitted into evidence during the course of the hearing with the agreement of the parties. The Claimant provided some very late disclosure, after she had completed her witness evidence. We therefore asked her to give further witness evidence after the Respondent’s witnesses so that she could be cross-examined on the new documents.

[12]We read the evidence in the bundle to which we were referred and refer to the page numbers of key documents that we relied upon when reaching our decision below.

[13]The start of the hearing was delayed because of judicial resources. We were initially short of one non-legal member. However, this issue was resolved and we commenced the hearing on 20 November 2024. We were able to finish the evidence by the end of 25 November 2024, but this did not allow for closing submissions. With the agreement of the parties, we listed a further day, 11 February 2025 to receive written and oral submissions. We also listed a further day, 1 April 2025 to enable the Tribunal to conclude deliberations. We thank the parties for their helpful submissions.

FINDINGS OF FACT

[14]Having considered all the evidence, we find the following facts on a balance of probabilities. Some of our findings on disputed factual issues are dealt with in our conclusions.

[15]The parties will note that not all the matters that they told us about are recorded in our findings of fact. That is because we have limited them to points that are relevant to the legal issues.

Background

[16]The Respondent is a ministerial government department responsible for welfare, pensions and child maintenance policy. It has a large number of employees and well developed written policies, procedures and guidance that apply to its staff.

[17]The relevant policies, procedures and guidance to which we were referred for the purposes of the case were:• The Probation Policy (180 – 182) and Procedures (165 – 179)

• Attendance Management Procedures (196 – 219)

• Disability Confident Scheme (235 – 239)

• Guidance for staff called Making Occupational Health Work for You (183 – 187)

• Workplace Adjustment Procedures (1816 – 1820)

• Guidance on How to Manage Moves as a Reasonable Adjustment under the Equality Act (1872 – 1876)

[18]We note that the Probation Policy explains to probationers that if they cannot meet the standards of conduct, attendance or work performance required their management will follow formal procedures and may recommend dismissal either during or at the end of the probationary period. A decision maker will make the final decision and there is a right of appeal. The policy also informs them that in exceptional circumstances probation can be extended by up to three months.

[19]The Probation Procedures document is much more detailed. In the section within it on Attendance, it notes that different provisions apply for probationers than under the main Attendance Management Policy. For short term absences, the trigger for a written warning for probationary employees is four or more days sick leave (169). Under the main policy the trigger is either eight working days absence in any rolling 12-month period or four spells of any duration in any rolling 12 month period (203). The trigger for a long term absence is 14 calendar days under the Probationary Procedures (169) compared to 28 consecutive calendar days under the main Absence Management Policy (209).

[20]The Attendance section in the Probationary Procedures refers to the main Absence Management Policy, however, or guidance on what to do if there are special circumstances. This appears to be a reference to paragraph 34 of the main policy which sets out a number of scenarios where particular considerations should be undertaken. This includes: “(b) Reasonable adjustments have been identified and not yet made (c) The employee is disabled, the absence is directly related to the disability and it is reasonable to increase the trigger point (d) The absence is directly caused by an operation or treatment which could help to improve attendance or prevent sickness absence… (k) It would be perverse, unfair or disproportionate to give a warning taking into account the exceptional nature and/or circumstances of the absence and the employee’s otherwise satisfactory attendance record.” (206)

[21]In the section on Work Performance, the Probation Procedures state the• As the probationer progresses the manager must constantly assess and give feedback on their work performance based on what they have been told was required of them and the results delivered in the period. The manager will schedule meetings to discuss the probationer’s progress. These must be at least monthly, but managers may decide to hold them more frequently depending on the probationer’s circumstances

• If the probationer is not achieving the required standard set out in their objectives, the manager must establish if any additional support or training can be provided or if an underlying problem exists

• When all reasonable steps have been taken to help the probationer but the required standard is still not being achieved, the manager will issue a written warning and set an appropriate review period. The review period should not normally be longer than one month but can in exceptional circumstances be extended up to a maximum of 3 months to take account of reasonable adjustments as a result of a disability and training needs. This review period should be agreed with the probationer’s countersigning manager. If the required improvement is still not achieved dismissal should be considered by the decision maker

• When reviewing progress with the probationer, the manager should remind them that future conduct, attendance and work performance, will all be closely monitored and that they may be dismissed if they do not achieve the required standards in all of those areas.

[22]The Probation Procedures state that the standard Discipline Policy applies during a probationary period.

[23]The Respondent also has a number of policies on workplace adjustments (1817). This incudes a policy on managed moves as a reasonable adjustment under the Equality Act 2010 (1872 – 1876). The policy is said to apply as follows: “to disabled employees who are likely to be covered by the Equality Act 2010 and who are no longer able to continue working in their current role and/or current location even with workplace adjustments in place. A move can only be considered if the employee is unable to remain in their current role due to their disability, or an alternative role within the current line of business, after workplace adjustments have been considered or implemented and evaluated.”

[24]It adds, “A move can only be arranged where a suitable vacancy exists. Th role change is intended to support the employee to remain in the organisation rather than a career change or accommodating a role preference.” The Claimant

[25]The Claimant is a disabled person. For the purpose of her claim she relied on the following impairments:• Transverse Myelitis

• Mild-moderate psychosis

• Incontinence due to a neuropathic bladder.

[26]Transverse Myelitis is an inflammatory spinal condition characterised by limb weakness and numbness, sensory and motor deficits and autonomic dysfunction (999). As a result of her impairment, the Claimant is a wheelchair user. She self-catheterises to manage her bladder incontinence. The Claimant’s condition fluctuates and she experiences muscle spasms. These can be exacerbated by stress.

[27]According to the information the Claimant shared with the Respondent’s Occupational Health Adviser prior to her employment starting (on 24 August 2021), the Claimant “was diagnosed with mild psychosis, anxiety and depression in 2018. She …sees a psychologist weekly and is on a low dose antipsychotic medication. She denies any visual or auditory hallucinations and states her issues are mainly due to anxiety, mild depression and paranoia.” (242)

[28]The Claimant is a single parent to two dependent children with SEND and SEMH needs. She informed the Respondent of this prior to starting work and was issued with a

[29]During the period of her employment with the Respondent, the Claimant and her children were displaced from their home while works were being done on it. Initially they moved into another flat, but towards the end of December 202, they moved into temporary accommodation including hotels. There were several delays which meant they could not return when initially anticipated. When they did return to their home on 28 February 2022, they needed to buy new furniture and personal items. The Claimant’s Role

[30]The Claimant commenced employment with the Respondent on 4 October 2021. The Claimant joined the Respondent as a Higher Executive Officer (HEO) on the Respondent’s Policy Graduate Scheme in its Policy group. Her specific role was in the Disability and Work Opportunities team within the Employers, Health & Inclusive Employment (EHIE) Directorate.

[31]The function of a policy role is provide sound and timely advice to ministerial team and to translate their decisions into effective policies and efficient public services. Specifically, the key responsibilities of her post included:• Taking a lead role in the review of the DC scheme and revise the policy accordingly

• Leading on the scheme content on Gov.UK, liaising with stakeholders to review the content and ensure it’s up to date and meets the needs of employers.

• Undertake a review of all Gov.UK and identify additional content and liaise with DWP Digital Content Team

• Take the lead role in maintaining the Disability Confident Employer packs,

• ensuring information, guidance and case studies are up to date.

• Take a lead role in engaging employers to encourage sign up to the scheme.

• Liaising with other stakeholders across EHIE to ensure we are joined up and identifying opportunities to share content (240)

[32]The Claimant’s contract of employment confirmed that her employment was subject to a six month probation period, due to end on 3 April 2022 (281). It also set out her hours of work which were 37 hours per week plus a daily paid lunch break of one hour. The core hours for the Department were contracted working hours for the Department are 07:45 hours to 20:00 hours, Monday to Friday. Pre Employment Assessments

[33]The Respondent uses a company called PAM to provide occupational health (OH) services to it. As part of the Respondent’s standard recruitment vetting procedures, the Claimant was required to attend an initial employability screening assessment with PAM on 11 August 2021. The assessment was undertaken remotely. The outcome was that the Claimant was reported as fit for the role with workplace adjustments. The report (240) advised that she would need the following:• Display Screen Equipment (DSE) assessment

• PAM OH workstation assessment

• Regular comfort breaks

• Some working from home

[34]A more detailed OH assessment was undertaken on 24 August 2021. The Claimant disclosed her health conditions to the OH nurse. She shared the details of the impact of her physical conditions, including saying that she had regular medical appointments and anticipated needing some additional surgery in 2022. She told the OH nurse that she had been diagnosed with mild psychosis, anxiety and depression in 2018. For this she saw a psychologist weekly and was on a low dose antipsychotic medication. She denied any visual or auditory hallucinations and stated her issues were mainly due to anxiety, mild depression and paranoia.

[35]The report noted “Given the nature of her conditions, reoccurring absences cannot be ruled out at this time. She will also likely be required to have absences from work to attend medical appointments in the future.” The OH nurse reiterated the earlier advice for further assessments, regular comfort breaks and hybrid working (i.e. some days working in the office and some days working at home).

[36]Three weeks ahead of the Claimant’s start date, on 13 September 2021, Lisa Thompson opened a case file for the Claimant. Ms Thompson was a member of the Respondent’s People, Capabilities and Place Team whose role was to facilitate the acquisition of furniture and aids and equipment for the Respondent’s disabled employees. She initially liaised with Brian Keating, a member of the EHIE policy group who was acting as the Claimant’s temporary line manager before she started employment.

[37]Mr Keating advised Ms Thompson that it was envisaged that the Claimant would mix working from home and from the office. Ms Thompson explained to him that the Respondent used two different third party suppliers to assess the needs of disabled employees: Posturite for furniture and PAM’s OH service for equipment. She said she would organise the appointments and explained that they would be carried out remotely over the phone or video and that the Claimant should ensure that she told the assessors that she would be mixing working at home and the office.

[38]Ms Thompson also explained that, depending on what equipment was recommended, the Respondent’s own Workplace Adjustment Team (WAT) could provide some equipment directly from their own equipment stores. Other equipment, however, would either need to be ordered from the Respondent’s approved equipment suppliers or purchased directly by the employee. In the latter case, she explained that the employee would be able to claim the expenditure back provided an business case for the purchase had been approved in advance. She also explained that it was possible for employees to apply for a salary advance for such purchases.

[39]Mr Keating sent the Claimant the relevant consent forms for the assessments and in addition a Workplace Adjustment Passport with the Claimant. This is a document created by the Respondent that records agreed adjustments for individual employees. Once completed and approved it belongs to the employee, the aim being to minimise the need to re-negotiate workplace adjustments every time an employee moves post, moves between departments or is assigned a new line manager.

[40]The Claimant completed the consent forms and Workplace Adjustment Passport and returned them to Mr Keating on 21 September 2021. He attached the Workplace Adjustment Passport to the PAM assessment referral form. Start of Employment

[41]The Claimant’s employment started, as anticipated on 4 October 2021. Mr Keating handed over her line management to Julie Ann Williams who had by that time returned from leave. Ms Williams was a Disability Confident Policy Manager at SEO grade. She had worked as a civil servant for over 20 years at this time. The Claimant was the only person reporting to her. Ms Williams reported to Amanda Wadsworth (Senior Policy Advisor, Disability and Work Opportunities).

[42]As none of the planned assessments had taken place by the Claimant’s start date, it was agreed that she would work from home. The pandemic meant that many staff members were working from home at this time so this was not unusual.

[43]At this time, the Claimant was participating in on-line inductions with the rest of the cohort that had joined as part of the Respondent’s Policy Graduate entry scheme. We get the impression from an email sent to the cohort on 5 October 2021 that not everyone joining was provided with their basic IT equipment straight away and that it was understood that the first few weeks would feel somewhat chaotic (342).

[44]Members of the cohort had access to a Learning and Development Manager and were assigned a buddy. In the Claimant’s case, her buddy was Megan Carver. There were also two co-sponsors, who sent the welcome email, whose role was to help guide the group and provide additional broader support alongside their manager and other support networks. The email mentions them organising an introductory meeting in the week commencing 25 October.

[45]On 5 October 2021, the Claimant sent a very lengthy email to Mr Keating in which she explained that she and her family had experienced anti-disability harassment which she had reported to the police. Her email set out how she had not found the police helpful as they had classified the matter as a neighbour dispute. She expressed concern that the perpetrators of the harassment may contact the Respondent with misinformation about the Claimant including suggesting that legal action as being taken against her.

[46]The Claimant explained: “I am providing this information because I am very concerned about this issue especially as I have a disability and children with SEN needs (mental health and developmental issues, including anxiety depression and suicidal ideations with referrals therapy and support services). We have recently suffered bereavement and I currently await major surgery next year to further treat injuries resulting from the impact of this situation.” (321 – 323)

[47]Mr Keating replied to say that he was sorry to hear of the Claimant’s recent bereavement and that he had passed the email to Ms Williams. She also replied to say that she was sorry to hear the Claimant had been through such a difficult time. She reassured the Claimant that no misinformation had reached her and asked for her permission to share the information with her senior colleagues and HR to ensure the Claimant was fully supported, which the Claimant confirmed by reply (320).

[48]On 7 October 2021, the Posturite assessment took place remotely. The report produced contained very little helpful information. The assessor explained in the report that it was not possible to do a satisfactory assessment remotely and recommended that a face to face assessment (known as a Higher Level Assessment) be undertaken instead (326)

[49]On 13 October 2021, Ms Williams and the Claimant met in person for the first time when the Claimant attended the office. This was also the date when the Claimant collected her work laptop and smart card. A note of the meeting was included in the bundle (880 - 881).

[50]The discussion covered the line management chain, flexi, and mandatory training. Ms Williams asked the Claimant to send her the Workplace Adjustments Passport she had completed and noted that they were awaiting a date for a Higher Level Assessment.

[51]The Claimant explained to Ms Williams that she had various appointments that she needed to attend for her own health reasons and for her children who have Special Educational needs. Ms Williams asked the Claimant to record the appointments in a carers statement, to let her know when they were taking place and ensure they showed in her calendar and flexi-sheet. Ms Williams subsequently sent the Claimant a carer’s statement to complete following the meeting, which she did. The Claimant sent the completed the carers statement back to Ms Williams on 15 October 2021 (350).

[52]The Claimant also raised the matters contained in her lengthy email. Ms Williams sought to reassure her and provided her details of PAM Assist.

[53]The Claimant later emailed Ms Williams to provide her with a copy of her Workplace Adjustment Passport. She indicated in her email that she could provide any follow up information, such as evidence of appointments, that Ms Williams required. She also thanked Ms Williams for reassuring her about the harassment matter (345).

[54]On 20 October 2021 the Claimant had the PAM DSE/Workstation Assessment via Microsoft Teams. The report noted: “The consultation today was completed via telephone and through Microsoft Teams so we could review her current setup. Currently she reports to be sitting in her wheelchair with her laptop resting on her lap. Physically this is like to lead to poor sitting postures and further increase her muscle spasms within her back. Furthermore, she reports to be elevating her legs by resting them on her sofa. Based on her condition her symptoms are long-term due to the Neurological nature. She reports to be self-managing her symptoms with regular medication. Today we assessed the suitability for her working on her dining table, however due to her being wheelchair bound, the height of her table was too high for her to be able to get an appropriate setup. Therefore, she requires a DWP furniture assessment as it is likely that she will require an adjustable desk, that she can position to the appropriate height for her wheelchair. In addition to this additional equipment is required to improve her setup and this has been listed below.” The equipment recommended included a particular keyboard, wireless mouse, laptop stand and a double leg rest. (377)

[55]Following receipt of the report, on 21 October 2021, Ms Thompson emailed Ms Williams and the Claimant to explain that the Claimant should expect to be contacted by Posturite about her higher level assessment. She said that as that assessment would cover the double leg rest, they should wait before ordering one. She confirmed that the keyboard and the wireless mouse could be ordered internally for delivery to the Claimant’s home. The laptop stand, however, would need to be purchased by the Claimant. She included a link to the policy providing guidance on how to do this (383). Separately Ms Thompson suggested to the Claimant that she share the report with Ms Williams (384) She did not do this until 5 November 2021.

[56]Although Ms Thompson contacted Posturite to request a higher level assessment on 21 October 2021 (398) there was a delay arranging it. None of the equipment items were ordered in the meantime.

[57]Ms Williams chased Ms Thompson for information on 17 November 2021 and she in turn chased Posturite. This led to an assessor, with Jenny Nissler (physiotherapist and ergonomist) contacting the Claimant in early December 2021. Following an exchange of emails, it was agreed (on 14 December 2021) that the assessment would take place the following day, 15 December 2021 (444)

[58]On 2 December 2021, the Claimant notified Ms Williams that she was due to have a surgical procedure on 8 February 2022. Review Meetings - 14 and 15 December 2021

[59]On 14 December 2021, Ms Williams and the Claimant met (remotely) to discuss how the Claimant was settling in and her workload. As a result of the discussion at the initial meeting, Ms Williams asked the Claimant to send her further information which they discussed further the following day. Ms Williams made a note of the meetings (881 – 886). The notes were not shared with the Claimant, nor did Ms Williams follow up the meeting with an email.

[60]The Claimant indicated that she considered she was settling in well, managing her workload comfortable and would like additional work.

[61]One of her tasks the Claimant had been assigned, with the support of Julia Smith, was to deal with non-complex complaints. Ms Williams reiterated the importance checking the complaints email in box- daily, being mindful of the deadline of 10 days to deal with complaints being careful with her accuracy as feedback suggested she needed to focus on attention to detail.

[62]During the discussions, it became apparent that the Claimant had had a number of meetings that she had not told Ms Williams about and was also attending training courses that was not part of her role. In addition the Claimant told Ms Williams that she had applied to undertake a voluntary role as a co-chair Respondent’s Disability Network that would take up 25% of her time.

[63]Ms Williams told the Claimant that she should not be attending meetings or training without her knowledge and that the Claimant should have discussed the role with her beforehand. This was because the Claimant’s primary focus should be on being trained by the team to perform her job role. The Claimant later withdrew her application for the voluntary role.

[64]Ms Williams also raised the Claimant’s working hours with her, including both how she was managing to fulfil her contractual obligation to work 37 hours and how she was recording her working hours. It became apparent that the Claimant was not recording her hours correctly. Ms Williams confirmed to the Claimant that any voluntary reading outside core hours should not be recorded.

[65]Ms Wiliams recorded in her notes that the Claimant told her, subject to having appointments, she was logging on to start work at around 9 to 9.30 am and then working until around 4 pm, albeit with a lunch break of one hour. She would then pause for a couple of hours to look after her children and log back on to complete her working day. She noted that the Claimant had provided her with inconsistent information about when she logged back on, having said at one point it was after 7 pm and then later that it was between 5 and 6 pm.

[66]Ms Williams explained that the core hours of work were between 8 am and 8 pm and the Claimant should not work outside these hours. She expressed concern that the Claimant might find it difficult to complete 37 hours a week taking into account her own health appointments and her caring responsibilities for her children. She informed the Claimant that reducing her hours was a possibility. She asked the Claimant to make her aware of all her appointments and to make sure these were showing in her calendar.

[67]At the meeting on 14 December 20201, it was noted that the Posturite assessment was due to take place the following day. In fact, in the morning of 15 December 2021, the Posturite assessor cancelled the appointment because of her concerns about travelling and Covid. She suggested an alternative date of 20 December 2021, but the Claimant declined because she was moving into temporary accommodation (a hotel). She felt it made little sense to have an assessment in her temporary accommodation and said she preferred to have one when she had moved back into her permanent home.

[68]When the Claimant and Ms Williams met that day the Claimant informed Ms Williams that the Posturite assessor had cancelled the appointment that day. She also told her that as she was moving house, she had and asked that the assessment be delayed until January 2022. Ms Williams asked for copies of the email exchanges and expressed concern about the Claimant’s wellbeing and capacity for work without adjustments. The Claimant confirmed to Ms Williams that she preferred to wait.

[69]The Claimant subsequently forwarded the emails between her and Posturite to Ms Williams on 23 December 2021 confirming that she had requested that her Posturite assessment be delayed until the new year. In her email to Ms Williams she said, “I am happy to volunteer working without the assessment until then.” (1895)

[70]Posturite contacted the claimant in early January 2022. She asked the assessor to contacted her again on 7 February 2022 when they would agree a time and date for the assessment. The Claimant had still not had confirmation of when she could move back to her home by this date and so she arranged for this call to be put back to 7 March 2022. 4 February 2022 Meeting

[71]The Claimant and Ms Williams spoke virtually on 4 February 2022 to. Ms Williams’ notes of the meeting were in the bundle (886 -887).

[72]They discussed the Claimant’s living arrangements. She explained that she had expected to move back to her home before Christmas btu it was not ready and so she and her family were being accommodated in hotels on a temporary basis. She was hoping to be able to return on 14 February 2022. One of the consequences of being in a hotel was she as having internet connection issues.

[73]The Claimant also raised the harassment matter she had previously raised. Ms Williams recorded in her notes that: “[The Claimant] has been really concerned around this matter since starting with us in October and she sounds very distressed and paranoid about this matter. She is paranoid about the staff in the hotel, her ex-partner and neighbours. [The Claimant] did not sound as if she believed that I hadn’t heard anything about her.”

[74]There was also a discussion about the Claimant’s current working and her flexi sheet which was not completed correctly and the impact the Claimant’s appointments and child care responsibilities were having on her ability to complete a full working day.

[75]As a result of Ms Williams learning about the ongoing delay with the Higher Level Assessment, she contacted Ms Thompson. As the Claimant needed to have an assessment in relation to her needs in the office as well as at home, she asked if this was possible for 17 February 2022. This was a date when it had been arranged that the Claimant would meet with her and Ms Wadsworth. This was duly arranged.

[76]The Claimant had surgery on 8 February 2022. The day was recorded as sickness absence. 17 February 2022 – Higher Level Assessment

[77]On 17 February 2022 Ms Nissler conducted the Claimant’s higher level assessment in the office. She fed back her recommendations in person to the Claimant, Ms Williams and Ms Wandsworth.

[78]Ms Williams’ notes of the meeting record that Ms Nissler recommended the “To optimise Amdalat’s posture, she will require:• Lap Top Riser

• Light weight separate key-board

• Light weight separate mouse

• Height adjustable desk

• Full monitor (normal size for posture and vision)

• Regular movement breaks

• It was discussed that Amdalat may, in the future, require voice activated software, such as Dragon (training to use Dragon). This is to be reviewed in a few months.

• Discussion with Occupational Health regarding the requirement for her to put up her legs throughout the day – this could require a leg rest or wheelchair accessory.

• Recommended that Amdalat only travels into work once or twice a month (for meetings with line manager and possibly full team).”

[79]Ms Nissler’s formal report was sent to Ms Thompson. A copy of it was not included in the bundle. On 3 March 2022, Ms Thompson emailed Ms Williams and the Claimant setting out the report’s recommendations and explaining what the process was for ordering the equipment that was recommended. Ms Thompson also recommended that the Claimant share the report with Ms Williams. Ms Thompson asked for confirmation of what she should order.

[80]The recommendations were:80.1 The Claimant needed a rectangular, electronically operated adjustable height desk in both the office and at home. As far as the office desk was concerned, the assessor had confirmed that the Respondent’s standard height adjustable desk was suitable.

80.2 With regard to a desk at home, Ms Thompson explained that the assessor had recommended a desk which the Claimant would need to purchase in accordance with the Respondent’s policy on purchasing items to enable working from home. She reiterated that if the Claimant could claim a salary advance to make this purchase.

80.3 A flat screen monitor for home – which would need to be purchased in the same way as the desk

80.4 A separate webcam -which could be sent by the WAT Team to the Claimant at home

80.5 An accessibility keyboard – Ms Thompson noted that the assessor had recommended two wireless keyboards which would be needed to be ordered. Ms Thompson said that the WAT team had the wired versions in stock and suggested that the Claimant trial these to decide which one she preferred and then order the wireless version of that keyboard

80.6 A compact keyboard – which could be sent by the WAT team directly to the Claimant

80.7 An ergonomic desktop wireless key board and number pad – which could be sent by the WAT team directly to the Claimant

80.8 A wireless mouse – although a wired version could be provided, Ms Thompson advised that the wireless version would need to be purchased by the Claimant

80.9 A desk fan – this could be provided in the office, but would need to be bought for home by the Claimant

80.10 Adjustable laptop riser in the interim – which would need to be purchased by the Claimant There was no recommendation for a headset, whether wired or wireless.

[81]The Claimant provided her address for delivery of the items that she could be sent to Ms Thompson on 22 March 2022. The items were duly ordered. Despite them being sent out, some items were not initially received by the Claimant as a result of delivery issues. It was not clear to us whether this was the fault of the relevant couriers or the Claimant. She said that she had been in at the relevant times and could not explain why the deliveries were missed. To resolve this issue, it was arranged that some items would be sent to a job centre local to the Claimant so she could collect them.

[82]The delay in obtaining the equipment and the Claimant’s lack of proactivity in obtaining them, was a concern to Ms Williams. On 14 April 2022 she emailed the Claimant to express this concern. In her email she said: “Following on from our call. I am really concerned that all your equipment for home is still not in place. You told me the missing item are monitor and wireless headset and a desk they rises for your wheelchair to go under. You explained you missed the delivery for the monitor and headset and are speaking to the accessibility team to arrange re-delivery. You confirmed all the other equipment has been delivered and is up running. Thank you for sending me the email from the accessibility team I will chase this for you. Regarding the desk you confirm the one posturite recommended you have been told you have to purchase yourself and claim back on expenses. You explained you can’t do this right now. I have emailed [a colleague] to see if we can order this some other way. As I explained I am concerned without the right equipment at home it is difficult for me to support you and worry this may being effecting your performance which I am also concerned about, as I do want to support you with this. I asked you how would you feel about working in the office as we can accommodate all the equipment you need and have desks that rise, just until all your equipment is in place at home. You confirmed you are fine to work with your desk you have at home as you wheelchair will go under it. You confirmed Jennifer at posturite said the desk was a recommendation not an essential item. You have a wired headset which you can use for the moment. You confirmed you will have a think about the office if things get uncomfortable for you at home.” (626 – 627)

[83]The Claimant replied to say she was happy with what Ms Williams had written.

[84]The Claimant did not order the height adjustable desk for her home until 3 May 2022. The desk was delivered on 7 May 2022, but required assembly. It was eventually assembled on 9 June 2022.

[85]The Claimant requested a wireless headset, but one was not available. She had a wired headset however from March 2022 onwards. 17 February 2022 – Performance and Welfare meeting

[86]Following the initial discussion about the Claimant’s equipment and furniture needs with Ms Nissler, she left and Ms Williams and Ms Wadsworth conducted what they called an informal performance and welfare review meeting with the Claimant. Both were conscious that the Claimant’s probationary period was due to end on 3 April 2022. They were not satisfied that the Claimant’s performance was meeting the standards required.

[87]Notes of the meeting were taken and on 22 February 2022 were shared with the Claimant who was able to comment on them. The version with her comments and follow up questions, which were answered by Ms Williams, was in the bundle (478 – 483).

[88]During the meeting the Claimant was provided with feedback from colleagues who had assigned the Claimant work and suggestions for how to improve. Although not covered in the notes of the meeting, Ms Williams and Ms Wadsworth subsequently provided the Claimant with an informal Performance Action and Learning Plan (PAL) which recorded the overall objectives that the Claimant had been set as well as highlighted areas that she should focus on before the next review meeting (492 – 506). The Claimant added to it to record the Learning and Development one-to-one sessions and Policy Grad development sessions that she had attended (511).

[89]The key performance issues that were discussed were the Claimant’s diary management, the need for improvement with her work on complaints, the fact that she found what was thought to be a simple task quite challenging and the slow progress she was making on another piece of work.

[90]In addition, the Claimant’s ability to work a full working week were discussed with her, bearing in mind her child care commitments, medial appointments and the impact of being accommodated temporarily in a hotel. The Claimant was asked if part time working would help her, but again said that she wanted to work full time.

[91]There was also a discussion about matter that the Claimant had raised before that people harassing her and had been in contact with the DWP. In Ms Williams notes she recorded the following:• “[The Claimant] has previously made [Ms Wandsworth] and [Ms Williams] aware that she is experiencing bullying, harassment and hate crime at home. She has involved the Police and her support services with this situation. [The Claimant] has repeatedly mentioned this situation many times during meetings. [The Claimant] constantly asks ‘has DWP been approached by people where I live; have they reported on me and are they calling me names’?

• [The Claimant] said that she is extremely paranoid about this situation and needs regular reassurance that DWP has not received such communication.

• To address this, at the meeting, [Ms Wandsworth] explained that she is a Mental Health First Aid England Instructor. She reassured [The Claimant] that we have not heard from anyone about her and this situation.

• [Ms Williams] said that if we do hear something, she will speak to [The Claimant] about this and told her not to worry. [Ms Williams] explained that people cannot just walk into a government building - unlike other places where [The Claimant] has worked (like the NHS).

• [The Claimant] became very upset and emotional – crying at this stage. This situation is clearly having a negative impact on her.

• [Ms Wandsworth/ [Ms Williams] / expressed real concern about [the Claimant’s] mental health and recommended professional support including PAM Assist.”

[92]In her comments on the notes, the Claimant raised two points (485). The first point she challenged was the impression she felt the notes gave that the Claimant was talking about her person situation in group meetings. Ms Williams replied to reassure her that this was not what the note was meant to suggest and instead the intention was to record that what the Claimant had told her and Ms Wandsworth. The second point was: “Additionally, I have never used the phrase “has anyone been calling me names” and crying in our private meeting on the 17th February (in which we booked a meeting room) was triggered by me describing the impact of this problem. I think that this issues could be considered misinformation.” Ms Williams responded to this saying: “Both [Ms Wandsworth] and I recall that you used the term ‘calling me names’, ‘spreading rumours’ – we are happy to change the wording in the document to reflect your preferred term. [Ms Wandsworth] and I were very concerned about you as we saw that you were crying – you used a tissue to wipe your eyes and looked extremely upset.” It is notable that the Claimant did not challenge that the notes recorded that she had described herself as “extremely paranoid”.

[93]The follow up actions for the meeting recorded included the following:• [Ms Williams] suggested an OHS referral for advice and guidance re the issues above.

• [Ms Williams] suggested that [the Claimant] contact PAM Assist (previously providing contact details).

• Ms Wandsworth and Ms Williams will speak to HR to seek further support for [the Claimant] regarding the mental health situation. The Occupational Health Referral

[94]On 24 February 2022, Ms Williams emailed the Claimant with a copy of an Occupational Health referral consent form, which the Claimant signed later that day. The consent form said “You recently agreed that we require PAM OH Solutions advice regarding the impact of your current health/wellbeing on your work. Please complete each section of this form, then sign and date it to provide your informed consent.” The Claimant was asked to agree to the statement, “I have discussed with my manager the reasons my case is being referred for occupational health advice”, which she did (489).

[95]Ms Williams completed the Occupational Health referral form on 2 March 2022. She did not share the referral form with the Claimant or seek to agree its contents with her. Under the ‘reason for referral’ section, Ms Williams said: “I have real concerns regard [the Claimant’s] mental health and wellbeing. She is really paranoid about rumours re someone at home contacting DWP about her – unable to reassure her about this Numerous hospital appointments for herself and children (aged 16 and 14) Can she complete a full working day? Constant support needed by LM & L&D Manager (even out of core hours) I have provided PAM Assist details I believe she spoke to them until until (sic) 3 am they offered 6 counselling session she also has sees a therapist weekly through other support avenues outside of work.” (507)

[96]Before completing the referral form, Ms Williams and Ms Wandsworth had met with Laura Smethurst, Learning and Development Manager on 18 February 2022 (908) and then again on 23 February 2022 with Hilary Patel (Cohort Manager) (910). Ms Smethurst told them that the Claimant had rung her evening of 17 February 2022 and they have been on the call for three and a half hours. Ms Smethurst told Ms Williams and Ms Wandsworth that she felt the Claimant had serious mental health issues and she was concerned about her. She also said that the Claimant had told her she had been diagnosed with paranoid schizophrenia (908). When asked about this Ms Williams said she was not influenced by what Ms Smethurst had said about the Claimant’s diagnosis when she completed the OH referral form. 11 March 2022

[97]The Claimant had a fall on the morning of 11 March 2022, about which she subsequently contacted her GP. Her GP records for 14 March 2022 note that she contacted them that evening about a fall on the previous Friday. The notes record that the Claimant fell onto her bottom when transferring from her wheelchair in the bathroom and knocked her elbow. It is clear from the notes that the accident took place in the morning because they mention her son helping her before going to school. The reason for the consultation appears to be because the Claimant had noticed some spasming to her left arm and wanted the GP to check for abrasions (1896). 98. 11 March 2022 was also the date when the Claimant met with Ms Wadsworth and Ms Williams as a follow up to the meeting on 17 February 2022. Notes of the meeting were included in the bundle (523 – 525)

[99]The Claimant had moved back home, by this date, but was having internet connection issues and so was exploring changing her internet provider. The possibility of the Claimant working the office if this issue was not resolved was discussed.

[100]Ms Williams informed the Claimant that her work was not currently meeting the standards required of a HEO and therefore her probation period, which had been due to end on 3 April 2022, would be extended to 3 July 2022. This would provide the Claimant with an opportunity to improve her performance with the appropriate adjustments in place. At this time, the Higher Assessment had taken place and equipment was in the process of being purchased. In addition, the OH report was awaited which would also feed into this process.

[101]The Claimant was again offered a reduction in hours to assist her with her childcare responsibilities, however the Claimant declined saying she preferred to remain full time.

[102]Ms Williams asked the Claimant if she was happy with the objectives set out in the PAL. She confirmed that she was. The Claimant was then provided with specific feedback on her performance. This included the need to pay attention to detail when responding to complaints, consider the audience she was writing for when drafting documents and the need to become familiar with the Disability Confident Lines to Take paper. It was agreed that Ms Williams would continue to have daily contact with the Claimant on the days Ms Williams was in work.

[103]Following the meeting the Claimant sought advice and assistance from her trade union representative, Mike Buckley. She had emailed Mr Buckley several times before this, including on 27 February 2022. On that occasion she asked for assistance with her rights around discrimination saying that she had experienced “micro-aggressions [and] off-hand comments” (1907). We do not know what advice Mr Buckley gave her.

[104]On 14 March 2022, at 09:45, the Claimant emailed Mr Buckley saying asking for assistance with writing a grievance. She said in her email that she had “decided to request a change of team or department preferably and line manager along with either that I have passed the probationary period due to lack of reasonable adjustments” (526). Later that same day, at 23:42 she sent him a lengthy email setting out her concerns in detail (1908 - 1909). It is relevant to note that the Claimant sent follow up emails to her trade union on 18 March 2022 (1912), 19 March 2022 (1910), 22 March 2022 (1911) and 29 March 2022 (1918). These were in connection with drafting two grievances which she submitted in April and are considered further below.. She also sent an email to HR on 31 March 2022 in which she requested a change in team and line management (611). She did not say anything about race discrimination or race-related harassment in the emails

[105]In the meantime, on 15 March 2022, Ms Williams sent the Claimant a formal letter to confirm the decision to extend her probation by email (589). The Claimant replied to the email on 25 March 2022 saying she was not prepared to sign the letter before getting advice (591). OH Report - 16 March 2022

[106]The Claimant underwent a remote OH assessment on 16 March 2022. The assessment started late because initially the Claimant did not pick up her calls.

[107]In the Report, the OH Nurse commented that psychosis is a mental health problem that causes people to perceive or interpret things differently from those around them, but that the Claimant was on appropriate medication for the condition, having weekly therapy through the NHS and had made contact with PAM Assist. She added that she did not have time to fully explore this issue with the Claimant due to the late start.

[108]She said that she considered that the Claimant was fit to continue working from home, but could attend meetings in the office. She suggested that these should be kept to a minimum. She also commented that it might assist the Claimant for her to have additional flexibility for making up her working time, such as permitting her to work outside of core hours. It was also suggested that a stress risk assessment was carried out. There was no discussion regarding the Claimant’s needs for equipment and aides. (527) 8 April 2022 – Grievances

[109]The Claimant submitted two grievances on 8 April 2022.

[110]One of the grievances (709) was about the OH referral and its focus on the Claimant’s mental health.. The second lengthier grievance was about the decision to extend her probationary period (715 – 723). When asked what her proposed resolution would be for both grievances, the Claimant indicated that she wanted a change in line management and for her probationary period to be re-started. On the lengthier grievance she added that her preferred manager would be “a male with a visible disability from a similar ethnic background to [herself].” She also asked that her probation be confirmed and that she be given the chance to make up her working hours outside core hours. (723)

[111]The grievances were considered together. An independent decision maker, Sunil Aswani, was appointed to do this. The Claimant was invited to a grievance meeting on 6 May 2021 which she attended with her trade union representative (728 – 731). At the meeting the Claimant explained that she had not been given sufficient time to demonstrate her abilities with her reasonable adjustments in place. She also considered that there had been a lack of structured line management and clear objectives at the start of her employment. She wanted her probation to be

[112]Mr Aswani also interviewed Ms Williams (733 – 735) and Ms Wandsworth (736 – 737). His investigation report (702 – 707) and outcome letter (701) were sent to the Claimant on 19 May 2022.

[113]Mr Aswani did not uphold the Claimant’s grievances. The conclusion he reached was: “Given that [Ms Williams] did not appear to break any DWP policies and it is more likely than not that it was deducible from the 17 February meeting that the referral was for mental health, I have not upheld this grievance. Secondly, given that [the Claimant’s] probation has already been extended in line with DWP’s policy on mitigating circumstances and that [Ms Williams] and [Ms Wadsworth] had made sufficient attempts to ensure [the Claimant] is able to work as comfortably as possible, I have not upheld the second grievance either.” (706)

[114]The Claimant was unhappy with this outcome and submitted an appeal on 7 June 2022 (760). A grievance appeals officer, Helen Froggat was appointed, who conducted an appeal meeting with the Claimant on 22 June 2022 (817). The Claimant was accompanied by a different trade union representative, Chris Marks. Ms Froggat did not uphold the Claimant’s appeal (840 – 842)

[115]In his grievance outcome report, Mr Aswani had taken the view that the Claimant’s request for a line manager with a very specific intersectionality was in violation of the Respondent’s policy on discrimination. He said that it should be considered in line with the Respondent’s Disciplinary Policy (704).

[116]Mr Aswani’s recommendation was pursued. An investigator, was appointed to consider the matter further. On 21 June 2022, the Claimant was invited to attend an investigation meeting with Jo Frost (838). The meeting took place on 7 July 2022 (945). The Claimant was accompanied by Mr Marks. Ms Frost produced an investigation report on 25 July 2022 in which she concluded there was a disciplinary case to answer, although she recommended to the decision maker dealing with the disciplinary decision that they consider mitigation due to the Claimant’s medical condition (1062 – 1066). 11 May 2022 Meeting

[117]Before the outcome to the grievance was known, Ms Williams and Ms Wandsworth held a further performance review meeting with the Claimant. This was on 11 May 2022. Notes of the meeting were contained in the bundle (913 – 916).

[118]The discussion covered the Claimant’s child care responsibilities, progress with obtaining the recommended equipment and furniture, what was happening with her probationary period, completion of her flexi timesheet, and her performance against the PAL objectives. An updated PAL had been discussed with the Claimant on 4 May 2022 (658).

[119]The Claimant informed Ms Williams and Ms Wandsworth that her daughter was unwell and would need a hospital referral.

[120]The Claimant confirmed that she had received the desk, but it needed assembly. Following the meeting, Ms Williams contacted Ms Thompson who confirmed that the desk assembly could be funded by the Respondent. The Claimant did not have the ergonomic desktop, however, because of the delivery issue. This was being chased up. The Claimant was advised that an equivalent desk with the correct ergonomic desk top was available in the office and could be used there in the meantime.

[121]The Claimant had completed one of the PAL objectives on time, but there were still concerns about the level of support she needed to deal with the Disability Complaints. There was also a discussion about the timeframe for her to provide minutes from a recent Business Leaders Group meeting she had attended. The Claimant confirmed she was happy with the timescale.

[122]The Claimant asked questions about the probationary process. She was told that she would continue on the informal PAL until 17 May 2022 when there would be a further review. She was also told that if her performance was not up to standard, the next step would be a warning and a formal PAL.

[123]On 18 May 2022, the Claimant emailed the Respondent saying the “I am concerned about the duration of the PAL and whether the deadlines were suitable due to the pre-operative appointments that I informed Julie W of prior to the PAL and during the PAL. Unfortunately, due to my fluctuating condition it is difficult to know fully the suitability of certain activities until they are underway, especially without all reasonable adjustments in place. Although I have agreed to work from home, I would like to clarify that I agreed that I was happy to do so because this was the most suitable option at the moment, it does not mean that I am happy or comfortable working without my reasonable adjustments as this has negative impacts on my health. Working from home allows me to have access to all my health related equipment and it is easier for me to cope with my symptoms and current health issues. Additionally, I do not feel that 2 weeks is sufficient time to measure my performance (in replacement of a 6 month probation period) considering the lack of reasonable adjustments which are currently not fully in place. I am confused about the PAL since this does not seem to be informal especially if it is supposed to document the activities I am to undertake, I was informed that there were other tools that could be used. I find this process stressful and that it has worsened my health condition my neurological condition can worsen under stress.” (1045) 26 May 2022 Probation Review Meeting and Formal Warning (27 May 2022)

[124]A follow up meeting took place on 26 May 2022. The meeting was conducted by Ms Williams and the Disability Confident Team Lead Lexi Rees. The Claimant’s Trade Union Representative, Mike Buckley, was also in attendance at the meeting. Notes were taken (745 - 748).

[125]Ms Williams fed back to the Claimant that the Claimant had not met the deadlines on the PAL, even where these had been extended by agreement. In addition, the quality of the work she had produced was not to the expected standard. She went through this in some detail with the Claimant. She also said that she had been through the Claimant’s latest flexi sheet which suggested that she was working long hours, and yet still not meeting the deadlines.

[126]Ms Williams informed the Claimant that as the informal PAL had not been successfully, a formal PAL was being put in place for a further 4 weeks from 20 May – 24 June 2022. In addition, the Claimant would be issued with a formal written warning in relation to her performance during her probation.

[127]The Claimant objected to the PAL and said that she understood that all reasonable adjustments need to be in place before a PAL can be used. The Claimant confirmed that she had everything except wireless headphones. Which were not available. In addition, although she now had a rising desk at home, this still needed assembly. Ms Williams confirmed that approval had been given for her to get his work done and she should receive this in the next couple of days.

[128]Ms Williams also reiterated that there was a rising desk available in the office which the Claimant could use. The Claimant responded saying that she could not leave her child on her own at present because of her health issues. She also said that she had arranged to see her doctor because she was finding the micromanagement from Ms Williams and PAL stressful.

[129]A letter confirming the Claimant’s written warning was sent to her on 27 May 2022 (755). The letter advised the Claimant that she had a right of appeal within 10 working days, although it did not say to whom she should send the appeal. Sickness Absence

[130]The Claimant was absent from work between 30 May and 10 June 2022. On 27 May 2022 the Claimant submitted a Statement of Fitness for Work which set out that the Claimant was not fit for work due to ‘recent stress’, covering the period 27 May 2022 to 10 June 2022 (1623).

[131]On 9 June 2022 the Claimant submitted a Statement of Fitness for Work which listed a ‘stress-related problem’ and advised that from 9 June 2022 to 31 August 2022 the Claimant may be fit for work if a phased return to work or altered hours were considered. The fit note stated: “Given that absent because of stress and several physical symptoms/problems, may be sensible to gradually return over several weeks. Consider discussion about part-time ongoing e.g. 3 days weekly” (1624) 13 June 2022 – RTW meeting

[132]Ms Williams met the Claimant for a return to work meeting on 13 June 2022. A note of the meeting was in the bundle (763). They discussed the Claimant’s GP’s recommendations for a phased return, i.e. three days a week for several weeks.

[133]Ms Williams explained that she had discussed the request with HR. They had said that a phased return was normally only out in place following a lengthier absence. In addition, she had been told that because the Claimant worked full time, the Respondent was not able to reduce down from 5 days, but could agree to her working shorter days. She outlined a plan whereby the Claimant would work 5 hours on Monday to Friday that week, 6 hours on the Monday and Tuesday the following week and return to full time hours on Wednesday 22 June 2022.

[134]According to the notes, the Claimant agreed to the arrangement in the meeting, although said she wanted to speak to her GP about changing her working pattern to part time. Ms Williams also offered a further OH referral. Again the Claimant said she would like to speak to her GP about this first.

[135]Ms Williams asked the Claimant to spend the rest of the day reviewing the deadlines in the PAL so that these could be revisited in light of the Claimant’s absence and phased return. They agreed to discuss them the next day. Ms Williams sent the Claimant the current PAL by email (at 10:33) after the meeting.

[136]The Claimant replied at 15:29 asking for confirmation that the Respondent was not implementing her GP’s recommendation of a phased return of 3 days per week. She also said: “In terms of the PAL, you are aware of my condition and that the agreed reasonable adjustments are not completely in place. It is unfair that I am subject to performance management procedures without them.” (789)

[137]Ms Williams sought further advice from HR about the possibility of 3 day week working and later confirmed that it was agreed that she would work full hours for 3 days per week for two weeks, returning to 5 days a week on 5 July (922). This was put in place for weeks commencing 20 June 2022 and 27 June 2022.

[138]Ms Williams also sent the Claimant the form to sign from the return to work meeting on 13 June 2022 at 11:42. The Claimant replied at 15:26 asking her to add the following before she would sign it: “I would like to request that the form includes that I do not have all my reasonable adjustments in place and that I am not happy about this although I am willing to work with what I have in place at the moment. Although I am willing to continue working with the reasonable adjustments that are currently in place, I do not believe I should be subject to formal performance management procedures while reasonable adjustments are outstanding.” (1206)

[139]This led to Ms Williams speaking to the Claimant again to check what was outstanding. The Claimant had confirmed at the meeting that the desk was now assembled. According to Ms Williams’ note, the Claimant confirmed that the only item outstanding was a wireless headset. The Claimant was using a wired headset at that time (764). 14 and 15 June 2022

[140]The Claimant suffered spasms when self-catheterising the next day (14 June) and the day after (15 June). As a result she injured herself and went to A and E (994 and 995). The Respondent treated the Claimant as sickness absence on both days.

[141]The Respondent had decided to double the Claimant’s permitted absence level before it would take action in relation to her attendance during her probationary period. This meant that instead of a trigger point of 4 days, it would apply a trigger point of 8 days to her. The Respondent calculated the Claimant’s absence, following the absences on 14 and 15 June as above this tigger point. Ms Williams informed the Claimant of this on 16 June 2022 (798) and she was subsequently invited to a formal attendance meeting.

[142]Ms Williams also provided a revised PAL to the Claimant on 16 June 2022 with an end date of 8 July 2022 (802 – 813).

[143]On 16 June 2022, the Claimant emailed her union to say that she wished to appeal against the written warning she had been given. She explained in her email that she wished to dispute the warning “due to [her] lack of reasonable adjustments and caring responsibilities.” She explained in her email that “I did not have the rising ergonomic desk or wireless headset which is required due to my neurological condition and symptoms experienced on a daily basis (e.g. spasm, tremors, pain and discomfort). Additionally, it would not be possible at that time to leave my child unattended due to her experiencing dissociative episodes/seizures and my caring responsibilities/duties.” (794)

[144]On 21 June 2022, Ms Williams asked the Claimant about a further OH referral. The Claimant said she wished to speak to her GP first, but did ask about a stress risk assessment. The relevant form was sent to her by Ms Williams on 21 June 2022 (1822), but was not completed by the Claimant.

[145]On 27 June 2022, MS Williams sent the Claimant a formal letter confirming that her probation period was being extended to 15 July 2022. The letter said: “This is because there has been insufficient time to fully assess your performance due to your workplace adjustments not being fully in place, as a result of you cancelling your appointments due to your living situation. I am also waiting further advice from your Occupational Health Assessment to ensure that all necessary support is in place for you. To date, your performance has not met the required standard for an HEO Policy Graduate. For example, we would expect to see an improvement in your drafting, in particular on the products coming out of the Disability Confident review. As we have discussed previously during probation, your attendance, conduct and work performance must all be satisfactory throughout the extended probation period. If not, I have to advise you that your contract of employment may be terminated.” (862)

[146]The review date for the formal PAL was changed to 8 July 2022. 28 June 2022 Meeting

[147]The formal attendance meeting took place on 28 June 2022. Also in attendance was Mr Marks. The notes of the meeting were contained in the bundle at pages 923 – 925.

[148]Ms Williams opened the meeting by explaining that the Claimant’s sickness absence was at 15 days and that as this exceeded the probationary target, when adjusted for the Claimant, the next step would be a formal warning. Ms Williams said that as the Claimant had already been given a warning, the next step was to refer the case to a decision maker.

[149]The Claimant did not challenge the calculation of her sickness absence at the time. She responded saying that she had a fluctuating medical condition, which meant that she needed to take time off. She hoped that she wouldn’t need to take any more time off, but due to the fluctuating nature of the condition may need to do so.

[150]The Claimant confirmed that she had all the equipment she needed, expect that she was experiencing problems with the stability of her monitor and was still awaiting a set of wireless headphones. Ms Williams reminded the Claimant that she could work in the office if the monitor issue was a problem. The Claimant said that she could not leave her daughter at this time due to her medical condition, but according to the notes of the meeting, agreed that if she had not been able to resolve the monitor issue, she would revisit this with Ms Williams.

[151]On 4 July 2022, the Claimant emailed HR saying: “I wanted to discuss the discriminatory/misuse of disciplinary processes by my line management that has negatively impacted my probation. I have not had all reasonable adjustments in place which has directly impacted my health and resulted in injury and may have impacted my performance. I was informed by my trade union representative that it is unlawful to apply disciplinary processes when these are not in place, these have been agreed as reasonable for the department and getting some of these adjustments has caused me ﬁnancial strain ( I had to make a business case which meant that I had to make expensive purchases ﬁrst). I have evidence of lack of reasonable adjustments and the impact it has had on my health (including hospitalisation), bullying behaviours from my line manager and unfair treatment (both the line manager and counter-signing manager have had signiﬁcant time off that exceeds their own trigger points without any such consequences impacting their retention (from what I can observe)). I would like to resolve this issue and also change my line management. I think I will need to be placed in a different team due to this impacting my progression and also my health as a reasonable adjustment. Is it possible to discuss this at some point today?” (849) Decision Maker Process

[152]The Claimant’s case was passed to a decision maker as per the Probation procedures. The nominated decision maker was Sam Hainsworth.

[153]On 6 July 2022, Ms Hainsworth emailed the Claimant with an initial letter to invite her to attend a formal interview with her on 13 July 2022 (939). She sent a revised letter the following day. The letter advised the Claimant that: “At the interview I will consider your attendance and work performance. You have previously discussed your work performance in your first formal meeting on 26/05/22 with Julie Ann Williams which resulted in the issue of the written warning. I have a duty to explain that as you have already received a written warning, it is possible that the interview may result in your dismissal.” (950)

[154]In fact the meeting with Ms Hainsworth did not take place until 1 August 2022. This was at the Claimant’s request. The delay enabled Ms Hainsworth to clarify a number of issues, ensure that she and the Claimant had all relevant documentation and for an up to date OH report to be obtained. It also gave the Claimant additional time to demonstrate an improvement in her performance.

[155]The Claimant informed Ms Hainsworth that she had submitted an appeal against the written warning she had been given. In fact, this was not fully accurate.

[156]On 7 July 2022 at 7:59 pm the Claimant completed a grievance form (1920 - 1925) in which she said she wished to dispute the written warning dated 27 May 2022 and explained why. She sent this to a general HR address. It was picked up by HR who advised her that she needed to submit the grievance to a manager in line with eh Respondent’s grievance procedure (954).

[157]In addition, on 7 July 2022 at 10:55 pm, the Claimant emailed the same general HR address with a complaint about a different matter and requested an investigation (1942 – 1943). She later completed a grievance form with the same information on 18 July 2022 (1926 – 1934).

[158]On 19 July 2022, the Claimant emailed Ms Hainsworth to tell her where and when she had submitted the grievance about the final warning (1024). She provided her with an update the next day, 20 July 2022, to say that she had been told that she needed to send it to a manager (1037). The Claimant did not mention the grievance of 18 July 2022 to Ms Hainsworth.

[159]Ms Hainsworth took advice from HR as to whether she could proceed with meeting the Claimant when the appeal/grievance was outstanding. The Claimant raised this point with her. The advice she was given that she could, but in any event the Claimant did not resubmit the appeal/grievance to a manager despite HR having identified someone who would be independent.

[160]The Claimant had informed Ms Williams that she wanted to proceed with an OH referral in early July. Ms Williams completed the referral on 11 July 2022 (1002) and the OH assessment took place by telephone on 19 July 2022.

[161]The OH report (1021-1022) confirmed that the Claimant was experiencing ongoing symptoms, which included varying degrees of pain and neurological symptoms including muscle spasms, bladder spasms, limitation in movement and capability, disturbed sleep patterns, tiredness and fatigue, fluctuating moods and raised levels of anxiety arising from the combination of her chronic medical conditions. It explained that the symptoms were consistent with Transverse myelitis and her mental health problems. Of these the report said that the claimant remained “vulnerable to further episodes ….. in the future, whenever events in her life trigger an exacerbation or she perceives her circumstances to be stressful.”

[162]The report described that the Claimant’s symptoms would impact on the Claimant’s ability from a physical perspective to complete prolonged or repetitive movements and from a mental perspective to complete tasks requiring prolonged cognitive functioning capability i.e. focus, pace, memory and concentration. It noted that this latter impact affected the Claimant’s capability at work.

[163]With regard to the Claimant’s likely future sickness absence, the OH report said the following: “Ms Jinadu has chronic underlying physical and mental health conditions where relapses in the future can occur; potentially leading to sickness absence. You may wish to take this into consideration when managing her future sickness absence. It is likely absence levels seen previously would be a good indicator of future attendance. Please note Occupational Health cannot specify absence percentage or trigger applicable or procedural interventions, any increase to an employee`s entitlement to sick leave is a decision for the employer to make, taking into account the needs of the business, if it is operationally feasible.”

[164]The Report included the following Management Advice: “Based on the information obtained during the assessment today, in my opinion Ms Jinadu is fit to be at work with the current adjustments in place, which I would continue to support.”

[165]The following adjustments were recommended, as well as a further workstation assessment:• consideration of a change in her working hours to part-time, reducing the amount of days worked, to help with her symptom management;

• a role that allows as much home working as possible and with flexibility in her hours, start and finish times, especially if she has any exacerbation in her symptoms;

• a role with reduced workload, pace, target expectation and performance pressures, especially if she has any exacerbation in her symptoms;

• providing clear instructions and additional time for the any training or learning new tasks and with buddy support ongoing, allowing longer for consolidation and for building confidence and competencies; with increased breaks, especially if she has any exacerbation in her symptoms, if this is operationally feasible.

[166]The Claimant sent the OH report to Ms Hainsworth on 20 July 2022 (1042). She also discussed the OH recommendations with Ms Williams on 20 July 2022. Ms Williams emailed Ms Hainsworth that day to tell her about this. Ms Williams said that she had told the Claimant that she could not put the new recommendations in place until after the decision on her probation had been made (1043).

[167]Ms Williams continued to performance manage the Claimant throughout this period, including updating the formal PAL. Ms Williams undertook a formal review of the Claimant’s performance against the PAL on 27 July 2022. She shared this document with the Claimant and Ms Hainsworth (1097). 1 August 2022 Meeting

[168]The Claimant attended the meeting with Ms Hainsworth on 1 August 2022 with a new trade union representative, Lorna Buchanan. Notes of the meeting upon which the Claimant had commented were contained in the bundle at pages 1245 – 1253.

[169]Ms Hainsworth noted that the Claimant was still in her probationary period, it having been extended by three months because of the delay in providing reasonable adjustments and by a further two weeks because of the Claimant’s sickness absence. She gave the Claimant the opportunity to comment on the three areas she was considering, namely attendance, performance and misconduct. She

[170]With regard to attendance, the only point the Claimant made was her absences on 14 and 15 June 2022 should be disregarded.

[171]The Claimant did not comment on the misconduct issue.

[172]With regard to performance, the Claimant disputed the assessment of her work as not meeting the required standards. She acknowledged that some of her work had contained mistakes and some had needed redrafting, but she argued that the standard of the work that she had produced was consistent with the standard to be expected of someone in her role at this stage in their career.

[173]The Claimant said that some of the errors in her work were due to a lack of clarity in relation to the guidance and instructions she had received. She argued that due to her mental health condition, she needed very clear and explicit instructions.

[174]The Claimant acknowledged that she had missed deadlines and not completed work that she had been asked to do. She said that this was due to a having multiple demands on her time which she had struggled to manage. She said that this was due, in part, to her disability. One of the disability-related reasons was her need to attend regular medical appointments, although she said she made up the time for this. She also said, however, that her medical condition had deteriorated due to the stress of being performance managed which had resulted in an increase in tremors. This had led her to have to take time off and experience a medical emergency.

[175]The Claimant also acknowledged, however, that other demands on her time were not related to her disability. She gave as examples her caring responsibilities for her children and the extra time spent pursuing grievances and appeals.

[176]With regard to equipment, the Claimant said she had been given the warning before she had her desk at home and when she had a technical issue with her screen. She said that she also did not have the wireless headset. She explained that she needed a headset for privacy because sometimes there were people in her house and that she used it to listen to educational webinars while working. She said that her computer had been struck as a result of a tremor while she was wearing the wired headset and she had had to have her smart card replaced.

[177]The Claimant said that, as an alternative to dismissal she should offered a managed move to a different department where, “I feel less anxious about the support I receive, and where they are more able to accommodate my reasonable adjustments” (1249). She did not, however, expand on what she meant by this.

[178]The Claimant sent Ms Hainsworth some additional information by email after the meeting. Ms Hainsworth also undertook some additional investigations including seeking advice from HR. Dismissal

[179]Ms Hainsworth competed her decision making on 15 August 2022. Her decision was that the Claimant’s employment would be terminated on the grounds of poor performance and attendance, effective from 16 August 2022.

[180]This decision was confirmed to the Claimant in a letter dated 16 August 2022. The letter confirmed that the Claimant would receive 5 weeks’ pay in lieu of notice. The Claimant was advised that she had a right to appeal against the decision to terminate her employment (1383 – 1385).

[181]She prepared a lengthy Decision Maker’s Record of Decision explaining her reasoning (1349 – 1363).

[182]The Record of Decision making confirms that the allegation of misconduct did not contribute towards Ms Hainsworth’s decision to dismiss the Claimant. It explains that Ms Hainsworth considered, taking into account the conduct involved and the mitigating circumstances, that the only sanction that the conduct would have merited was an informal warning. She had therefore disregarded it when considering whether or not to dismiss the Claimant.

[183]With regard to the Claimant’s attendance, she noted that there had been a miscalculation in the number of days the Claimant was said to be absent between 30 May and 10 June. She observed that the correct figure for this period was 10 days and not 12, making a total of 13 days absence.

[184]With regard to the treatment of 14 and 15 June 2022, she considered the Claimant’s argument that these days have been discounted, but rejected it because she was satisfied that the Claimant was absent on these days. She did not consider excluding the absence on 8 February 2022.

[185]She noted that the normal trigger of 4 days in probation had been increased by 100% to 8 days for the Claimant which had been exceeded. She further noted that if the trigger had been adjusted to take account of the extended probationary period (calculated by her to be just over 9 months), the Claimant’s sickness absence of 13 days would still have exceeded the adjusted trigger.

[186]Finally, she considered the ability of the business to tolerate this level of absence. She found that it could not, due to the impact within a small team on delivery of briefing and meetings that cannot be changed or disrupted. She therefore decided that the Claimant’s attendance level justified her dismissal.

[187]With regard to the Claimant’s performance, Ms Hainsworth first made a number of findings as to what equipment had been provided to the Claimant and when. She concluded that as at the formal probation review meeting held on 26 May 2022, the Claimant had received all recommended equipment, except that the rising desk at home had not been assembled (and would not be until 9 June 2022) and she had not been provided with wireless headphones.

[188]She noted that so far as the desk was concerned, the Claimant had had the option of going into the office rather than working at home where she could have used a rising desk there. She found that she had not taken up this option due for childcare reasons.

[189]So far as the wireless headset was concerned, she decided that the wireless headset was not an essential piece of equipment required in order to enable the Claimant to undertake her role.

[190]She further noted that a new issue had arisen by 28 June 2022, the date of the formal attendance meeting, which was the stability of the monitor the Claimant was using at home. She noted that the Claimant again had the option of going to the office to work there while this was being resolved, but did not take this option up giving child care reasons.

[191]Ms Hainsworth also considered what other adjustments had been recommended in the Claimant’s most recent OH report dated 19 July 2022.

[192]She considered that the recommendations around providing clear instructions and guidance, training and support had been in place from the start of the Claimant’s employment, although these had not initially been formally documented. There had been a failure to conduct a formal training needs analysis and the Claimant had not been provided with a written set of objectives for her probationary period.

[193]However, the Claimant had been provided all relevant training. In addition, she buddies had been allocated to her for each task assigned and there had been clear explanations of the work required. When Ms Williams gave the Claimant the first informal PAL this ensured she had a document which set out the expectations of her in writing.

[194]Ms Hainsworth noted that the most recent OH report recommended a greater number of adjustments than the initial OH reports due to the deterioration in the Claimant’s condition. As noted in the report, the areas of deterioration were in relation to the Claimant’s ability to complete tasks requiring prolonged cognitive functioning capability i.e. focus, pace, memory and concentration, which continues to affect her capability at work.

[195]She observed that the OH report did not say that the Claimant’s condition prevented a formal performance management process being undertaken, but recommended additional adjustments, namely reduced workload, pace, target expectation and performance pressures. She found that these were put in place. The Claimant’s probation was extended and the targets/activities within the formal PAL had been reduced.

[196]Ms Hainsworth considered two further matters. The first was whether part time working would make any difference. She noted that this was a new recommendation in the latest OH report. She decided that allowing the Claimant to work part time would not resolve the performance issues to the degree needed. She based this decision on the fact that there had been no improvement in the Claimant’s performance during the two week period she was able to work part time.

[197]The final matter she considered was the Claimant’s request to move toa different department. She concluded that it was not appropriate on the basis that the Claimant’s request did not meet the criteria set out in the Respondent’s policy. She explained that such a move would only be considered where an employee is unable to carry out their role as a result of disability. In the Claimant’s case the latest OH advice said that the Claimant’s medical conditions meant that the Claimant needed adjustments rather than a different role. Ms Hainsworth observed that the Claimant’s request appeared to be as a result of the effect the formal action taken against you has had on your health, as opposed to her inability to carry out the role.

[198]Ms Hainsworth concluded that the Claimant’s work was not at the standard required for a policy graduate, even with all recommended adjustments in place. She found that the work the Claimant had been tasked with was suitably tailored for someone at her level and with her disabilities. 199. suitably tailed for the Claimant’s role, but the work she produced was not of the quality expected, contained inaccuracies and was not delivered to the required deadlines. Her decision was that the Claimant’s employment should be terminated on performance grounds. Appeal Against Dismissal

[200]The Claimant appealed against the decision to dismiss her on 2 September 2022, having first sought, and been granted an extension of time to do so due to her trade union representative being on annual leave (1406, 1409). Martha Baker (Deputy Director Stakeholder Engagement and Communications) was appointed to consider the appeal by the Claimant. She did not know the Claimant and had had no previous involvement with her.

[201]The grounds of the Claimant’s appeal were as follows:• she had had insufficient time to meet the PAL with the reasonable adjustments in place

• the sickness absence trigger should not have been applied to her

• she should have been redeployed to another role rather than dismissed

• she should have been offered reduced hours rather than be dismissed The Claimant also accused Ms Hainsworth of lacking impartiality.

[202]By way of a resolution, the Claimant said she was seeking the following: “I believe that this situation could be resolved via changing my hours to parttime and a managed move in accordance with the most recent OH assessment and Disability Confident Leadership/level 3 policy. I have already mentioned another department where a managed move could be possible, where I have prior experience and support including a manager who was pleased with my performance.” (1411 - 1415)

[203]An appeal meeting took place on 27 September 2022. The Claimant was accompanied to the appeal meeting by her Trade Union Representative, Angelo Ferraro. The meeting was rescheduled twice in advance of this date due to the Claimant’s availability and health. The official notes of the meeting were contained in the bundle (1449 – 1455), as well Ms Baker’s personal notes (1445 – 1448).

[204]During the meeting, the Claimant accepted that she had been provided with the most important equipment by May/June and that having a wireless headset was not a very important adjustment (1450).

[205]Following the meeting, Ms Baker undertook some follow-up investigations. This included speaking to Ms Hainsworth and seeking advice from HR on when a managed move would be considered (1267 – 1268). The Claimant also sent her a timeline she had prepared and provided her with a copy of the OH report dated 19 July 2022 (1457).

[206]Ms Baker wrote to the Claimant on 17 October 2022 to confirm that she had decided not to uphold the Claimant’s appeal (1464 – 1466) Employment Tribunal Claim

[207]The Claimant initiated the Acas EC process on 23 July 2022 before her employment was terminated. The EC certificate was issued on 31 August 2022. She did not, however, present her claim until 26 November 2022.

[208]The Claimant said that there were a number of reasons why she waited before presenting her claim. First, her mother died on 30 September 2022. In addition, she was waiting for the outcome of the appeal which she did not receive until 17 October 2022. In the Claimant’s mind this was the date of the last act of discrimination. Finally one of her children was hospitalised between 12 and 29 November 2022 which took up a lot of her time.

[209]The Claimant’s legal complaints of direct race discrimination and racerelated harassment were made by made of an amendment application on 22 February 2023 (129). THE LAW Claims under the Equality Act 2010

THE LAW

[210]Section 39(2) of the Equality Act 2010 prohibits an employer discriminating against one of its employees by dismissing him or by subjecting the employee to a detriment. This includes direct discrimination under section 13 and discrimination arising from disability under section 15.

[211]Section 39(5) of the Equality Act 2010 imposes a duty to make reasonable adjustments on an employer. This is expanded upon in sections 20 and 21 and Schedule 8.

[212]Section 40 of the Equality Act 2010 prohibits an employer from harassing one of its employees. This is expanded upon in section 26.

[213]Subsection 212(1) of the Equality Act 2010, says that a detriment does not include conduct that amounts to harassment.

[214]Section 4 of the Equality Act 2010 provides that race and disability are protected characteristics. Section 9(1) of the Equality Act 2010 says race as includes colour, nationality and ethnic or national origins.

[215]Section 136 of the Equality Act 2010 contains a shifting burden of proof that applies to any proceedings relating to a contravention of the Act. Direct Discrimination

[216]Section 13 of the Equality Act 2010 provides that ‘A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others’.

[217]Under section 23(1), where a comparison is made, there must be no material difference between the circumstances relating to each case. It is possible to compare with an actual or hypothetical comparator.

[218]In order to find discrimination has occurred, there must be some evidential basis on which we can infer that the claimant’s protected characteristic is the cause of the less favourable treatment. We can take into account a number of factors including an examination of circumstantial evidence.

[219]We must consider whether the fact that the claimant had the relevant protected characteristic had a significant (or more than trivial) influence on the mind of the decision maker. The influence can be conscious or unconscious. It need not be the main or sole reason, but must have a significant (i.e. not trivial) influence and so amount to an effective reason for the cause of the treatment.

[220]In many direct discrimination cases, it is appropriate for a tribunal to consider, first, whether the claimant received less favourable treatment than the appropriate comparator and then, secondly, whether the less favourable treatment was because of the protected characteristic. However, in some cases, for example where there is only a hypothetical comparator, these questions cannot be answered without first considering the ‘reason why’ the claimant was treated as she was.

[221]Section 136 of the Equality Act sets out the relevant burden of proof that must be applied. A two-stage process is followed. Initially it is for the claimant to prove, on the balance of probabilities, primary facts from which we could conclude, in the absence of an adequate explanation from the respondent, that the respondent committed an act of unlawful discrimination.

[222]At the second stage, discrimination is presumed to have occurred, unless the respondent can show otherwise. The standard of proof is again on the balance of probabilities. In order to discharge that burden of proof, the respondent must adduce cogent evidence that the treatment was in no sense whatsoever because of the claimant’s race. The respondent does not have to show that its conduct was reasonable or sensible for this purpose, merely that its explanation for acting the way that it did was nondiscriminatory.

[223]Guidelines on the burden of proof were set out by the Court of Appeal in Igen Ltd v Wong

[2005] EWCA Civ 142

;

[2005] IRLR 258

and we have followed those as well as the direction of the court of appeal in the Madarassy case. The decision of the Court of Appeal in Efobi v Royal Mail Group Ltd

[2019] ICR 750

confirms the guidance in these cases applies under the Equality Act 2010.

[224]The Court of Appeal in Madarassy, states: ‘The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal ‘could conclude’ that on the balance of probabilities, the respondent had committed an unlawful act of discrimination.’ (56)

[225]It may be appropriate on occasion, for the tribunal to take into account the respondent’s explanation for the alleged discrimination in determining whether the claimant has established a prima facie case so as to shift the burden of proof. (Laing v Manchester City Council and others

[2006] IRLR 748

; Madarassy v Nomura International plc

[2007] IRLR 246

, CA.) It may also be appropriate for the tribunal to go straight to the second stage, where for example the respondent assert that it has a non-discriminatory explanation for the alleged discrimination. A claimant is not prejudiced by such an approach since it effectively assumes in his favour that the burden at the first stage has been discharged (Efobi v Royal Mail Group Ltd

[2019] ICR 750

, para 13).

[226]In addition, there may be times, as noted in the cases of Hewage v GHB

[2012] ICR 1054

and Martin v Devonshires Solicitors

[2011] ICR 352

, where we are in a position to make positive findings on the evidence one way or the other and the burden of proof provisions are not particularly helpful. When we adopt such an approach, it is important that we remind ourselves not to fall into the error of looking only for the principal reason for the treatment, but instead ensure we properly analyse whether discrimination was to any extent an effective cause of the reason for the treatment.

[227]Allegations of discrimination should be looked at as a whole and not simply on the basis of a fragmented approach Qureshi v London Borough of Newham

[1991] IRLR 264

, EAT. We must “see both the wood and the trees”: Fraser v University of Leicester

UKEAT/0155/13

at paragraph 79.

[228]Our focus “must at all times be the question whether or not they can properly and fairly infer… discrimination.”: Laing v Manchester City Council, EAT at paragraph 75. Discrimination Arising from Disability

[229]Subsection 15(1) of the Equality Act 2010 provides that: A person(a) (A) discriminates against a disabled person

(b) (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

[230]Limb (a) involves a two stage test:• Did the claimant's disability cause, have the consequence of, or result in, "something"?

• Did the employer treat the claimant unfavourably because of that "something"? It does not matter which way round these questions are approached.

[231]According to subsection 15(2), subsection 15(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. It is not necessary, however, for A to be aware that the "something" arises in consequence of B’s disability (City of York Council v Grosset

[2018] EWCA Civ 1105

[232]The concept of unfavourable treatment is unique to section 15. In the case of Williams v Trustees of Swansea University Pension and Assurance Scheme and another

[2018] UKSC 65

, the Supreme Court said it was a similar to a detriment. In particular, there is a requirement that the disabled person “must have been put at a disadvantage.” No comparator or comparison is required.

[233]Known as the test of objective justification, the leading case on limb (b) is Bilka-Kaufhaus GmbH v Weber von Hartz [1987 ] ICR 110, ECJ. The Court held that, to justify an objective which has a discriminatory effect, an employer must show that the means chosen for achieving that objective:• correspond to a real need on the part of the undertaking

• are appropriate with a view to achieving the objective in question, and

• are necessary to that end.

[234]A balancing act is required. The discriminatory effect of the treatment has to be balanced against the employer’s reasons for it. To be proportionate, the unfavourable treatment has to be both an appropriate means of achieving the legitimate aim and a reasonably necessary means of doing so (Homer v Chief Constable of West Yorkshire

[2012] UKSC 15

)

[235]When determining whether or not a measure is proportionate it is relevant for the tribunal to consider whether or not a lesser measure could have achieved the employer's legitimate aim (Naeem v Secretary of State for Justice

[2017] UKSC 27

). The tribunal should consider whether the measure taken was proportionate at the time the unfavourable treatment was applied (The Trustees of Swansea University Pension & Assurance Scheme and another v Williams

UKEAT/0415/14

[236]The tribunal is required to make an objective assessment which does not depend on the subjective thought processes of the employer. This question is not to be decided by reference to an analysis of the employer’s thoughts and actions. The question is whether the treatment, objectively assessed, at the time it occurred, a proportionate means to achieve a legitimate aim irrespective of the process adopted by the employer.

[237]We must also consider the guidance contained in the EHRC Statutory Code of Practice that is relevant to this question. This is contained, in particular at paragraph 5.12 which states that: “It is for the employer to justify the treatment. They must produce evidence to support their assertion that it is justified and not rely on mere generalisations.” The guidance in paragraphs 4.28 – 4.32 is also relevant. Reasonable Adjustments

[238]Section 20(3) provides that where a provision, criterion or practice (a PCP) applied by or on behalf of an employer, places a disabled person at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable to have to take in order to avoid the disadvantage.

[239]Section 21 of the Equality Act provides that an employer discriminates against a disabled person if it fails to comply with a duty to make reasonable adjustments. This duty necessarily involves the disabled person being more favourably treated than in recognition of their special needs.

[240]The duty to make reasonable adjustments only arises where the employer has knowledge (actual or constructive) that its employee is disabled and likely to be placed at a substantial disadvantage as (Paragraph 20 (1)(b) Schedule 8 of the Equality Act 2010).

[241]In Environment Agency v Rowan

2008 ICR 218

and General Dynamics Information Technology Ltd v Carranza

2015 IRLR 4

the EAT gave general guidance on the approach to be taken in reasonable adjustment claims.

[242]A tribunal must first identify:• the PCP applied by or on behalf of the employer

• the identity of non-disabled comparators; and

• the nature and extent of the substantial disadvantage suffered by the claimant in comparison with the comparators

[243]Once these matters have been identified then the tribunal will be able to assess the likelihood of adjustments alleviating those disadvantages identified. The issue is whether the employer had made reasonable adjustments as matter of fact, not whether it failed to consider them.

[244]The phrase PCP is interpreted broadly. The EHRC Code says (paragraph 6.10): “[It] should be construed widely so as to include, for example, any formal or informal policies, rules, practices, arrangements or qualifications including one-off decisions and actions.”

[245]There are some limits to what can constitute a PCP. In particular, there has to be an element of repetition, actual or potential. A genuine one-off decision which was not the application of policy is unlikely to be a “practice”: Nottingham City Transport Ltd v Harvey

[2013] All ER(D) 267

(Feb), EAT. In that case the one-off application of a flawed disciplinary process to the claimant was not a PCP. There was no evidence to show that the employer routinely conducted its disciplinary procedures in that way.

[246]In Ishola v Transport for London

[2020] ICR 1204

the Court of Appeal said that all three words “provision”, “criterion” and “practice” “..carry the connotation of a state of affairs (whether framed positively or negatively and however informal) indicating how similar cases are generally treated or how a similar case would be treated if it occurred again.”

[247]In Griffiths v Secretary of State for Work and Pensions

2017 ICR 160

, CA the Court of Appeal emphasised the importance of identifying not only the relevant PCP but also the precise nature of the disadvantage it creates for a disabled claimant by comparison with a non-disabled person. Unless the disadvantage is properly identified, it is not possible to determine what steps the employer might reasonably be expected to take to eliminate it. in this case, the appropriate formulation of the relevant PCP was a requirement that the employee maintain a certain level of attendance at work to avoid the risk of disciplinary sanctions rather than the application of the absence management policy itself.

[248]The test of reasonableness when considering an adjustment imports an objective standard. The tribunal must examine the issue not just from the perspective of the claimant, but also take into account wider implications including the operational objectives of the employer.

[249]The Statutory Code of Practice on Employment 2011, published by the Equalities and Human Rights Commission, contains guidance in Chapter 6 on the duty to make reasonable adjustments. Paragraph 6.28 sets out some of the factors which might be taken into account in determining whether it is reasonable for an employer to have to take a particular step in order to comply with the duty to make reasonable adjustments. These include whether taking the step would be effective in preventing the substantial disadvantage, the practicability of the step, the cost to the employer (including the availability of financial support) and the extent of the employer’s financial and other resources. Harassment

[250]Section 26(1) of the Equality Act 2010 provides: “A person(a) (A) harasses another

(b) (B) if (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.”

[251]A similar causation test applies to claims under section 26 as described above to claims under section 13. The unwanted conduct must be shown “to be related” to the relevant protected characteristic.

[252]The shifting burden of proof rules set out in section 136 of the Act can be helpful in considering this question. The burden is on the claimant to establish, on the balance of probabilities, facts that in the absence of an adequate explanation from the respondent, show he has been subjected to unwanted conduct related to the relevant characteristic. If he succeeds, the burden transfers to the respondent to show prove otherwise.

[253]Harassment does not have to be deliberate to be unlawful. If A's unwanted conduct (related to the relevant protected characteristic) was deliberate and is shown to have had the purpose of violating B's dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for B, the definition of harassment is made out. There is no need to consider the effect of the unwanted conduct.

[254]If the conduct was not deliberate, it may still constitute unlawful harassment. In deciding whether conduct has the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for B, we must consider the factors set out in section 26 (4), namely:(a) the perception of B;

(b) the other circumstances of the case;

[255]The shifting burden of proof rules can also be helpful in considering the question as to whether unwanted conduct was deliberate. Time limits

[256]The relevant time-limit is at section 123 Equality Act 2010. According to section 123(1)(a) the tribunal has jurisdiction where a claim is presented within three months of the act to which the complaint relates.

[257]The normal three-month time limit needs to be adjusted to take into account the early conciliation process and any extensions provided for in section 140B Equality Act.

[258]By subsection 123(3)(b), a failure to do something is treated as occurring when the person in question decided on it. In the absence of evidence to the contrary. A person is taken to decide on a failure to do something when that person does an act which is inconsistent with doing it or, in the absence of such an inconsistent act, on the expiry of the period on which that person might reasonably have been expected to do it.

[259]In claims for reasonable adjustments, this means time will start to run when an employer decides not to make the reasonable adjustment relied upon (Humphries v Chevler Packaging Ltd [2006] EAT0224/06). Alternatively, in a claim when an adjustment has not been actively refused time runs from the date on which an employer might reasonably have been expected to do the omitted act (Kingston upon Hull City Council v Matuszowicz

[2009] ICR 1170

CA). This should be determined having regard to the facts as they would reasonably have appeared to the employee, including what the employee was told by his or her employer (Abertawe Bro Morgannwg University Local Health Board v Morgan

[2018] ICR 1194

, CA).

[260]By subsection 123(3)(a), conduct extending over a period is to be treated as done at the end of the period.

[261]In Hendricks v Metropolitan Police Commissioner

[2002] EWCA Civ 1686

, the Court of Appeal stated that the test to determine whether a complaint was part of an act extending over a period was whether there was an ongoing situation or a continuing state of affairs in which the claimant was treated less favourably. An example is found in the case of Hale v Brighton and Sussex University Hospitals NHS Trust

UKEAT/0342/17

where it was determined that the respondent’s decision to instigate disciplinary proceedings against the claimant created a state of affairs that continued until the conclusion of the disciplinary process.

[262]It is not necessary to take an all-or-nothing approach to continuing acts. The tribunal can decide that some acts should be grouped into a continuing act, while others remain unconnected (Lyfar v Brighton and Sussex University Hospitals Trust

[2006] EWCA Civ 1548

; The tribunal in Lyfar grouped the 17 alleged individual acts of discrimination into four continuing acts, only one of which was in time.

[263]A refusal of a request, where it is repeated over time, may constitute a continuing act (Cast v Croydon College

[1998] IRLR 318

[264]A distinction needs to be drawn between a continuing act and a one-off act that has continuing consequences (Barclays Bank plc v Kapur and others

[1992] ICR 208

;). This distinction will depend on the facts in each case. (Sougrin v Haringey Health Authority

[1992] IRLR 416

, CA)

[265]Alternatively, the tribunal may still have jurisdiction if the claim was brought within such other period as the employment tribunal thinks just and equitable as provided for in section 123(1)(b).

[266]The tribunal has a wide discretion to extend time on a just and equitable basis. As confirmed by the Court of Appeal in Adedeji v University Hospitals Birmingham NHS Foundation Trust

[2021] EWCA Civ 23

, the best approach is for the tribunal to assess all the factors in the particular case which it considers relevant to whether it is just and equitable to extend time. This will include the length of and reasons for the delay, but might, depending on the circumstances, include some or all of the suggested list from the case of British Coal Corporation v Keeble

[1997] IRLR 36

set out below, as well as other potentially relevant factors:• The extent to which the cogency of the evidence is likely to be affected by the delay.

• The extent to which the party sued had co-operated with any requests for information.

• The promptness with which the claimant acted once they knew of the possibility of taking action.

• The steps taken by the claimant to obtain appropriate professional advice once they knew of the possibility of taking action

[267]It is for the claimant to show that it would be just and equitable to extend time. The exercise of discretion should be the exception, not the rule (Bexley Community Centre (t/a Leisure Link) v Robertson

[2003] EWCA Civ 576

[268]Where the reason for the delay is because a claimant has waited for the outcome of his or her employer’s internal grievance procedures before making a claim, the tribunal may take this into account (Apelogun-Gabriels v London Borough of Lambeth and anor

2002 ICR 713

, CA). Each case should be determined on its own facts, however, including considering the length of time the claimant waits to present a claim after receiving the grievance outcome. ANALYSIS AND CONCLUSIONS Direct disability discrimination (Equality Act 2010 section 13) Did the Respondent fail to consult the claimant prior to her Occupational Health Assessment? (Issue 3.1)

[269]The first legal complaint we considered was the Claimant’s complaint of direct disability discrimination which consisted of an allegation that the Respondent had failed to consult her prior to the OH Assessment that took place in March 2022. At the hearing, she explained that she was not alleging that there had been a total failure to consult her, but she had thought that the Assessment would be concerned with her general health and wellbeing, rather than focus on her mental health.

[270]We do not uphold this allegation on the facts. The legal complaint therefore

[271]The OH referral did focus on the Claimant’s mental health, although not exclusively. It was not clear from the consent form sent to the Claimant that this would be the focus. This was because the consent form was a general consent form and did not specify the referral wording. Had Ms Williams sent the Claimant the referral form for comment, it would have been clear, but Ms Williams did not do this.

[272]We note that although it is best practice to share the contents of a OH referral with the employee being referred, so that they understand exactly what is being said about them, this was not a requirement of the Respondent’s policy or procedure.

[273]We are satisfied, however, that the consent form wording was not the only information that had been provided to the Claimant. Ms Williams and Ms Wandsworth discussed an OH referral with the Claimant in some detail at the meeting with her on 17 February 2022. The suggestion of the OH referral was made when the Claimant was talking about her mental health and saying that she was feeling stressed and anxious. The notes of the meeting, which were sent to the Claimant, set this out very clearly. Although she queried some parts of the notes, she did not question this aspect of them. If she genuinely did not realise that the OH referral was going to focus on her mental health, this was not through lack of an explanation.

[274]Our finding, therefore, is that this allegation fails on its facts as the Claimant was made aware that the OH referral was mainly to assist with the mental health difficulties she was experiencing at the relevant time. Harassment related to disability (Equality Act 2010 section 26) Did the Respondent make a referral to the Occupational Health Consultant that was harshly worded with a focus on mental health and included personal details without the claimant’s consent? (Issue 6.1)

[275]Because the Claimant’s allegation of disability-related harassment was closely connected to the allegation of direct disability discrimination, we considered it next.

[276]We also do not uphold this allegation on the facts. The legal complaint therefore fails.

[277]In our judgment, the wording of the OH referral was not harsh. It is correct correct that the referral wording had a focus on mental health, but it did not include personal details without the Claimant’s consent. The conduct complained of is therefore only partially true on the facts.

[278]We do not find the wording to be harsh, because the reason for the referral was because Ms Williams was concerned about the Claimant’s mental health and wellbeing. She had said this to the Claimant at the meeting which led to the OH referral. She had also recorded in her notes that the Claimant was “paranoid” about the possibility of people contacting the Respondent about her. The Claimant had not challenged the use of this language in the notes and therefore as far as Ms Williams was concerned she had no objection to being described in this way.

[279]The conduct complained of was not unwanted conduct. The Claimant had agreed and provided written consent to an OH referral. She was not provided with a copy of the OH referral, but the reason for it had been covered in detail in the meeting of 17 February 2022.

[280]Ms Williams did not deliberately set out to purposely violate the Claimant’s dignity or create an intimidating, hostile, degrading, humiliating or offensive environment for her when she filled in the referral form. Her intention was to seek medical advice to support the Claimant.

[281]As to the effect on the Claimant, we note that she did not see the wording at the time or for several months afterwards as part of the grievance process. The Claimant made an assumption about the referral based on something the OH nurse said to her during the appointment. Even without seeing the wording though, the Claimant’s evidence was that the fact that the OH referral focussed on her mental health, rather than being more general, was distressing for her. We have therefore considered this perspective.

[282]We do not consider this to have been a reasonable reaction in the circumstances.

[283]As noted above, the circumstances were that the Claimant had become distressed in a meeting about something that she had talked about several times with her manager, who had tried to reassure her but had failed. In addition, the Claimant had agreed to the referral. It cannot be unlawful harassment to refer someone with a mental health diagnosis, who is experiencing distress, to OH and to make this explicit in the terms Ms Williams used, especially where the language used (i.e. the use of the word paranoia) is the same language used by health professionals in previous medical reports about the Claimant. The very first OH report prepared for the Respondent about the Claimant reported that had been diagnosed with mild psychosis, anxiety and depression in 2018. She had described the symptoms that resulted as including “anxiety, mild depression and paranoia.” Reasonable Adjustment Claims

[284]We next considered the Claimant’s reasonable adjustments claims. We did this in stages.

[285]We first went though each of the PCPs identified in Issue 5.2. We found, as a matter of fact that the Respondent did have the PCPs at 5.2.1, 5.2.4, 5.2.5. and 5.2.6 and therefore these needed further consideration.

[286]We rejected four of the PCPs as a matter of fact and begin by explaining our reasons below. Not replacing ‘buddies’ who leave while they are acting in a buddy capacity (Issue 5.2.2)

[287]The first of these concerned the position on buddies. In the Claimant’s case, it was correct that, at some point her assigned buddy, Megan Carver, left and was not replaced. We do not find this leads us to conclude that the Respondent had this PCP.

[288]The buddy relationship was an informal support mechanism put in place for new employees arriving as part of the Policy Graduate Scheme. The idea behind it was to put the new starters in touch with someone who also came through that route, but was further along in their journey.

[289]Our finding was that, by the time Ms Carver left her role at the Respondent and ceased to be the Claimant’s buddy, the Claimant had not contacted her for a while. This was because rather than use her for support, the Claimant had been using others. Initially, this was Ms Smethurst but later trade union representatives and HR.

[290]Had the relationship between the Claimant and Ms Carver been active, we have no doubt that Ms Carver and the Claimant would have communicated about Ms Carver’s departure and arrangements for an alternative buddy could have been made. We are sure the same would have been done had the Claimant spotted earlier that her buddy had moved on and asked for a new one.

[291]This legal complaint therefore fails. Not offering structured support to new members of staff (Issue 5.2.3)

[292]This PCP concerned the support offered to new members of staff. There was no evidence before us that this existed as a PCP and in fact, the opposite appeared to be true. In any event, this was not the case for the Claimant who was provided with structured support as recorded in our findings of facts.

[293]This legal complaint therefore fails. Not operating the Disability Confidence Scheme if it is suspected that the employee is using it in connection with a disciplinary process (Issue 5.2.7)

[294]We do not find that the Respondent had this PCP.

[295]The Respondent, unsurprisingly, was an employer that had pledged to apply the Disability Confident Scheme. Although not included in the bundle, the Scheme includes a provision whereby employers commit to making every effort to retain existing employees that become disabled. This includes consideration of an alternative role if their existing role is no longer suitable. The Respondent’s internal policies referred to this as a managed move.

[296]The Respondent’s policy on a managed move is that this is considered where a disabled employees is no longer able to continue working in their current role even with workplace adjustments in place. The policy says nothing about not applying the policy where it is suspected that an employee is using it in connection with a disciplinary process.

[297]The Claimant says that Ms Hainsworth referred to this PCP in her dismissal letter. This is incorrect. Ms Hainsworth did reference the fact that the Claimant had asked for a managed move. We have quoted what she said in her letter in this in the facts section. Our understanding of what she said was that the Claimant did not qualify for a managed moved because she was not saying that she was unable to do her role even with reasonable adjustments.

[298]This legal complaint therefore fails. Requiring employees to work full-time (Issue 5.2.8)

[299]The Respondent argued that it did not have this PCP and that in any event, it was not applied to the Claimant. It says this because the Claimant was able to work very flexibly within the parameters of its flexi scheme and was offered the opportunity to reduce her hours and work part time on several occasions between December 2021 and June 2022, but repeatedly did not want to do this. We agree that there was no general PCP in these terms.

[300]The Respondent arguably had two alternative PCPs which impacted on the Claimant’s ability to work part time that it applied to her. We have briefly considered these in order to ensure that we have given the Claimant’s case the fullest consideration.

[301]The first alternative PCP was applied to the Claimant following her return form sickness absence in May/June 2022. The Claimant asked that she be permitted to work three days per week for June, July and August on a phased return basis and produced a fit note from her GP with this recommendation. This was, in effect, a request to work part-time, but be paid on a full time basis for three months. The Respondent said no to this, although allowed the part time working on full pay for a short two week period. In doing this, the Respondent effectively applied a PCP of requiring employees to work full time in order to earn full pay.

[302]We consider it would not have been reasonable to expect the Respondent to agree to the Claimant’s request as an adjustment for several reasons. First there is a long line of authorities that confirm that it is unreasonable to expect an employer to pay a disabled employee for full time work where they are unable to work full time. Second, the evidence before us was that the Claimant did not need an extended phased return in order to be well enough to return to work full time after the short two week period. Third, working part time did not resolve the performance issues the Claimant was experiencing. This suggests that even if the Respondent had allowed this, the disadvantage that the Claimant ultimately suffered, namely being dismissed for poor performance, would still have occurred.

[303]The second purported PCP was applied when the Claimant’s OH report dated 19 July 2022 came back. We say purported because we do not consider there was a PCP. The OH report recommended that consideration be given to the Claimant reducing her working hours. When discussing the report with Ms Williams, the Claimant for the first time asked to be allowed to do this. Ms Williams refused this request, pending Ms Hainsworth’s decision.

[304]We consider that this refusal was a one off decision that applied to the Claimant in her particular circumstances rather than a PCP of general application. This legal complaint therefore fails.

[305]Having explained why we rejected four of the PCPs, we turn now to the remaining PCPs. We considered each of them in turn, including whether the PCP caused substantial disadvantage to the Claimant as a disabled person compared to a non-disabled person, whether the Respondent was aware of such disadvantage and if there were any reasonable adjustments the Respondent should have taken, but did not take to avoid the disadvantage. Having an absence management policy which is triggered after a fixed number of absences (Issue 5.2.1)

[306]As set out in the section on facts, the Respondent had this PCP, both as a stand alone policy and as part of its probationary policy. In the Claimant’s case, the probationary policy applied.

[307]We are treating this PCP as being a requirement to maintain a level of attendance without facing a sanction, in line with the Griffiths case.

[308]Under the Respondent’s probationary procedure, the starting point was that the trigger for a written warning for short term absences was four or more days sick leave during the six month probationary period. If there was no improvement this would lead to employment being terminated.

[309]The trigger under the Respondent’s probationary policy was not fixed in stone, however. The Respondent could adapt it in accordance with the provisions in paragraph 34 of the Absence Management Policy. Did the PCPs put the claimant at a substantial disadvantage compared to

[310]The Claimant’s complex combination of medical conditions meant that her absence levels were likely to be higher than a non-disabled person This was confirmed in the initial OH assessment undertaken before the Claimant started work and reiterated in subsequent assessments. None of the earlier OH reports provided an indication of the Claimant’s likely attendance level. The last OH report dated 19 July 2022 suggested that the Claimant’s attendance record to date was the best indicator of what to expect.

[311]The disadvantage to the Claimant was that she would be more vulnerable to formal absence management processes and being given a warning or being dismissed than a non-disabled person. She was required to attend a formal absence management meeting on 28 June 2022 and her attendance was one of the reasons for her dismissal

[312]In the Claimant’s case, by 28 June 2022, she had accrued 13 days’ sick leave. We note that the Respondent initially inaccurately calculated the number of sick days as being 15 days rather than 13. This was an administrative error that we do not consider to be material, because it was corrected when considering the question of dismissal.

[313]Three different periods of absence were taken into account by the Respondent.

[314]The first period was 8 February 2022 where the Claimant had taken a day’s sickness absence for a procedure necessitated by her neuropathic bladder. This was a disability-related absence.

[315]The second period was 10 days’ absence from 27 May to 10 June 2022, where the Claimant submitted a sick note for “recent stress”.

[316]The Respondent argued, relying on the case of Wheatstone v Blakeney News Food and Wine Ltd [2020]

UKEAT/0287/19

, that the reference in the sick note to stress meant that we should not treat this period of absence as disability-related. It invited us to find that the reason for the absence was the stress the Claimant experienced as a reaction to having been given a warning on 26 May 2022, rather than being linked to any of her underlying medical conditions that counted as disabilities.

[317]We did not accept this position.

[318]Although the GP fit note dated 26 May 2022 did not refer to the Claimant’s underlying mental health conditions being exacerbated, it is not uncommon for GP fit notes to lack relevant detail.

[319]The Claimant’s mental impairments meant she was more vulnerable to stress than others and would experience increased symptoms whenever events in life triggered an exacerbation or she perceived her circumstances to be stressful. This was confirmed in the OH report dated 19 July 2022.

[320]In addition, the Claimant’s cover email, sent with the fit note, explained that the symptoms she was experiencing included increased spasms and tremors which were linked to her Transverse Myelitis. The bundle contained medical evidence that the Claimant’s physical condition could be exacerbated by stress in exactly this way. We find that the stress was exacerbating the Claimant’s physical symptoms. This was corroborated in the subsequent GP fit note dated 9 June 2022 which referenced stress and physical symptoms.

[321]The third period of absence was 14 and 15 June 2022. These were days when the Claimant had to attend A&E having injured herself trying to selfcatheterise while she was having spasms. The Claimant said that these injuries should be treated as work-related injuries because they were caused by the stress that she was under at work. In our judgment she failed to provide evidence of this. We were satisfied, however, that the injuries were linked to her Transverse Myelitis and neuropathic bladder and therefore were disability-related.

[322]The Respondent treated the Claimant’s absence level of 13 days as sufficient to dismiss her. As she had already been given a warning under the Probationary Procedures, albeit for performance, rather than attendance, when she hit this trigger, the next step under the Probationary Procedures was to refer the Claimant’s case to a decision maker who decided that she should be dismissed for this reason. Did the respondent know or could it reasonably have been expected to know that the claimant was likely to be placed at the disadvantage?

[323]The Respondent was fully aware that the Claimant was likely to have a higher level of absence than a non-disabled person because this had been confirmed in the OH reports. What steps could have been taken to avoid the disadvantage?

[324]The Claimant has suggested three adjustments that she says could have avoided the disadvantage she experienced:• the first was to amend the number of absences which triggered the absence management policy.

• the second was to discount what the Claimant referred to as disabilityrelated absences. We understand that what she meant by a disabilityrelated absence was an absence for medical treatment necessitated by her underlying medical conditions. In this regard, she counted the day she was absent from work on 8 February 2022, as a result of having to have surgery.

• the third was to discount work-related absences, i.e. absences caused by work-related injuries. We understand that what she meant by workrelated absences were absences caused by something that had happened at work. In this regard she counted the two weeks she had off for stress, because according to her the stress was triggered by the Respondent’s performance management processes. She also counted the 14 and 15 June 2022 when she had to visit A&E having injured herself as a result of spasms. Was it reasonable for the respondent to have to take those steps and when? Did the respondent fail to take those steps?

[325]The Respondent did not make the second or third proposed adjustments.

[326]We do not consider it would have made any difference if the Respondent had made the third adjustment, i.e. discounting of work-related absences. This was because we did not find that the Claimant’s injuries could be considered to be workplace injuries. They were disability related, but all this means is that they contributed to the higher level of absence that could be expected as a result of the Claimant’s complex medical conditions.

[327]We were surprised that the Respondent did not discount the Claimant’s absence for a planned procedure on 8 February 2022. Paragraph 34 of Respondent’s Absence Management Policy, which is incorporated into the Probationary Procedure, envisages that when an absence is directly caused by an operation or treatment which could help to improve attendance or prevent sickness absence, discretion should be exercised. We interpret this as meaning that the absence should not be treated as contributing towards the trigger.

[328]In this case, the Claimant had informed the Respondent that she would need a surgical or similar procedure prior to joining. She gave the Respondent advance notice of the procedure. It was just a single day out of her employment.

[329]We find that this was a reasonable adjustment for the Respondent to have taken in the circumstances. It was in line with its own policy.

[330]The Respondent did make the first adjustment to a degree. Rather than measure the Claimant’s attendance against the standard trigger contained in the Probationary Procedure the Respondent purported to extend its tolerance level of absence in the Claimant’s case by 100%. In fact, in reality, it was not so generous, for two reasons.

[331]The first relates to its calculation. The 4-day trigger point contained in the probationary policy envisaged that once a probationary employee hit this point, he or she would be given a warning. The absence levels under the probationary policy were measured over the duration of the probationary period, which was a six month period. The tolerance level was therefore 4 days’ absence in six months. This worked out as a tolerance of 0.67 day’s absence per month. A genuine doubling of this would have given a tolerance level of an average of 1.3 day’s absence per month

[332]In the Claimant’s case, her probationary period had been extended. At the time of the formal attendance meeting on 28 June 2022, the Claimant had been employed for just under 9 months. She had had 13 days absence. This worked out as an average of 1.4 days’ absence per month which was above the adjusted tolerance level. If the day she took off for her planned surgery had been discounted, the average would be 1.3 day’s absence, exactly hitting the trigger.

[333]By the time Ms Hainsworth made her decision to dismiss the Claimant, she had been employed for 10.5 months. It is unclear if Ms Hainsworth increased the tolerance level to reflect this. She comments on it in her Decision Makers Report and says that an absence level of 13 days would have exceeded it, but does not say what she was measuring against. We have calculated that an absence of 13 days’ in 10.5 months works out as an average 1.26 days per month, which was below the purported tolerance level.

[334]In addition, if the day that the Claimant had been absent due to her surgical procedure had been discounted, this would have been a total of 12 days’ absence in 10.5 months and an average of 1.1 days’ per month.

[335]Given that the Respondent itself considered that a doubling of its tolerance level was a reasonable adjustment to make, we find that it should have made it, but failed to do so. This legal complaint therefore succeeds. Delaying provision of reasonable adjustments (Issue 5.2.4)

[336]We find that the Respondent also had this PCP as a matter of fact. In making this find, we are not saying that the Respondent had a PCP of deliberately delaying provision of reasonable adjustments. Instead, our finding was that it is a large organisation with complex internal processes and inevitably it takes time to get assessments undertaken and for the relevant equipment to be obtained. Although we were not presented with evidence that other disabled employee’s experienced similar delays with the provision of equipment, consider this must inevitably have been the case.

[337]In reaching this conclusion, we note that the Respondent has argued that a significant part of the delay was the Claimant’s responsibility rather than its fault.

[338]In our judgment, the biggest factor that led to the delay was the lateness of the higher level assessment. At the start of the Claimant’s employment the delay organising this was caused by the Respondent. The Claimant was not contacted about a higher level assessment until early December 2021. At this point she had already been in employment for two months. In our judgment, it was obvious that the Claimant would need a higher level assessment for home and office working right from the start and yet the Respondent’s complex procedures meant that she had to undergo two prior assessments before one could be arranged.

[339]After the Claimant had been offered the higher level assessment, however, responsibility for the ongoing delay ceased to belong to the Respondent. At this point the Claimant’s personal circumstances and the fact that she was living in temporary accommodation were to blame. This was not the Claimant’s fault. It was made little sense to have the assessment while she was housed in temporary accommodation. But it was also not the Respondent’s fault either.

[340]The further delays, after the higher level assessment was undertaken, were caused by the Claimant failing to order the equipment she needed promptly. This was the Claimant’s fault. She said this was because of her financial position, but she had been advised how to claim a salary advance in order to overcome this. There was no reason why she could not have ordered the necessary equipment more quickly than she did. Did the PCP put the claimant at a substantial disadvantage compared to

[341]We have found this a difficult question to answer, but on balance we find that the delay at the start of the Claimant’s employment, for which we have held the Respondent responsible, did not put the Claimant at a substantial disadvantage compared to someone without the Claimant’s disability.

[342]During this period, rather than being able to sit at a desk and work with more than one monitor, the Claimant worked using a laptop while sitting on her sofa or from a table that was not at the ideal height. This was a sub-optimal working environment, but was understood to be temporary.

[343]The position would have been the same for any home worker, but others, without the Claimant’s disability, would have better able to work from the office while waiting for the necessary equipment. It was more difficult, though not impossible, for the Claimant to work in the office due to her disability because of the challenges of commuting in a wheelchair and because she needed equipment to self-catheterise and was more comfortable doing this at home.

[344]During this period, the Claimant repeatedly told her managers that she was happy with the situation and that there was no adverse impact on her ability to do her role. She told them she preferred this to working from the office. It is relevant to note that she knew the arrangements were temporary and that it was well before any performance management processes were put in place.

[345]Given that the Claimant was only required to work in a sub-optimal environment for a temporary period, we do not consider the disadvantage to have been substantial. This legal complaint therefore fails.

[346]Having found that there was no substantial disadvantage to the Claimant we therefore find that the Respondent was not under a duty to take any additional steps over and above the steps it was already taking. Had there been an ongoing delay that was caused by the Respondent’s actions, rather than the Claimant’s environment or her own actions, our decision on this point would have been different. Applying capability procedures where performance is not considered satisfactory (Issue 5.2.5)

[347]We have found the Respondent has this PCP. It was part of the probationary policy.

[348]In fact, applying the Griffiths approach, the correct PCP was the requirement to maintain a satisfactory level of performance to avoid the risk of sanctions Did the PCP put the claimant at a substantial disadvantage compared to

[349]The Claimant’s performance was not meeting the standards required of a policy graduate. Her work was not at the quality required for someone in her role, contained inaccuracies and was delivered late as against deadlines.

[350]This resulted in the performance management aspects of the Probationary Procedures being applied to her. There were several aspects to the procedures. Initially an informal PAL was put in place. This was followed by a warning and a formal PAL and ultimately the Claimant’s dismissal.

[351]We consider that it was only the formal PAL, warning and dismissal that counted as sanctions. We do not consider the informal PAL and performance review meetings prior to the formal PAL counted as sanctions. Instead the informal PAL and associated meetings were tools to assist the Claimant by providing her with clear guidance about the work she was meant to be doing, timeframes for its completion, where she could get help and support and feedback.

[352]The question for the Tribunal was whether the Claimant’s performance deficiencies (and hence the disadvantage of being subjected to sanctions) arose as a result of the her disabilities or for other reasons. The Respondent is only under a duty to make adjustments where a disadvantage results for a disability.

[353]The Claimant’s medical conditions meant that her abilities were impaired when compared to a non-disabled person. The impairments were described in the OH report of 19 July 2022. It identified two areas of impact.

[354]The first area was the Claimant’s physical ability to complete prolonged or repetitive movements. This was not something that she was required to do in her role. She did not say that area of impairment caused her any difficulties in performing her role.

[355]The second area was the Claimant’s cognitive functioning capability, specifically, her focus, pace, memory and concentration. Her role did require good cognitive functioning and the Claimant identified this as an area of difficulty. There were several ways this could be addressed by making adjustments, however, as discussed further below.

[356]There were, however, also other potential reasons for the Claimant’s poor performance.

[357]At the meeting on 1 August 2022, the Claimant explained to Ms Hainsworth that she considered the reason she was failing to meet deadlines was because she was struggling to manage the multiple demands on her time. She did not accept that the quality of her work was below standard.

[358]Two of the demands that took the Claimant away from being able to focus on her work were related to her disability, namely managing her symptoms when they flared up and attending her regular medical appointments. However, the evidence was that the impact of these demands was minor when compared to the other demands on that were not disability-related. We find that because the Respondent operated a flexitime arrangement, there was no need for the time involved to have had any adverse impact on the Claimant’s performance. There was plenty of flexibility in the Respondent’s core hours to easily accommodate these.

[359]The other demands that were not disability-related arose from the Claimant’s child care responsibilities, the time she was spending on learning activities that were unrelated to her role and pursuing grievances. Where these impacted on the Claimant’s performance, and we think they did, the Respondent was under no obligation to make reasonable adjustments.

[360]The Claimant also told Ms Hainsworth that not having all the recommended equipment in place was an issue for her, although she did not expressly say that this was the reason why she was failing to meet the performance requirements. Instead, in her email of 18 May 2022, when she qualified her previous position about being happy to work from home without all of the recommended equipment, all that she said was that not was having it impacted on her health negatively. She did not explain how.

[361]The Claimant was put on the formal PAL and given a warning for performance on 26 May 2022. The period over which the Claimant’s performance was assessed on that date was between 11 and 26 May 2022. Prior to this, the higher level assessment had been carried out. The Respondent or its suppliers had supplied most of the equipment recommended to the Claimant and she had had plenty of time to order the other items of equipment that could not be supplied to her. These had been delivered. The only action that she had not taken was to arrange to assemble the rising desk at home. She was, however, able to work at a table instead. Her position was that the rising desk not essential. We therefore find that the Claimant had all the disability-related equipment that she needed and that a lack of equipment was the reason for her poor performance at the relevant times. Did the Respondent know or could it reasonably have been expected to know that the claimant was likely to be placed at the disadvantage?

[362]The Respondent was aware, from the very start of the Claimant’s employment that her condition could fluctuate. However, it was not until the OH report of 19 July 2022 that it received clear medical advice that the Claimant’s cognitive functioning was impaired. What steps could have been taken to avoid the disadvantage? The claimant suggests: amending the capability procedures to take account of the impact of lack of reasonable adjustments on performance

[363]The Claimant’s case was the capability procedure should have been amended to take account of the lack of reasonable adjustments. We assume that by this she meant the lack of equipment. This was in fact done, in the sense that the formal process was not applied to her until the relevant equipment was in place.

[364]The above does not address the disadvantage that we consider was present, namely the impairment to the Claimant’s ability maintain the required standard of performance because of her diminished cognitive functioning. We have relied on the recommendations of the OH report when considering what adjustments were appropriate. The recommendations were that she needed a reduced workload, pace and target expectation and performance pressures. In addition, the advice was that she should be given clear instructions, additional time for training and learning new tasks, ongoing buddy support, longer for consolidation and for building confidence and competencies and increased breaks. Was it reasonable for the respondent to have to take those steps and when? Did the respondent fail to take those steps?

[365]We find that the Respondent made all of the recommended adjustments within the performance management process to the degree that was reasonable.

[366]From the introduction of the informal PAL onwards, the Claimant was provided with a set of work objectives and therefore understood what was expected of her. She had been given one to one training on her tasks at the start of her employment and similar training was provided when her work was expanded. The training was reinforced through the provision of regular feedback. For each task she had someone named who could support her as a buddy.

[367]The Claimant’s workload and associated targets were reduced due to her performance difficulties. The time period for completion of tasks was extended in order to reduce the performance pressures on her. She was able to take breaks whenever she needed.

[368]Although it had been anticipated that the Claimant would be able to undertake more complex pieces of work with time, this progression did not occur and she continued to be assigned the most basic simple tasks relevant for her role.

[369]The adjustments made still required the Claimant to complete tasks appropriate for her role and by timely deadlines. To reduce these, and her workload further would not have been reasonable as the Claimant would no longer have been undertaking the work of a policy graduate. This legal complaint therefore fails. Requiring new employees to start working on their start date (Issue 5.2.6)

[370]We find that the Respondent had this PCP. Did the PCPs put the claimant at a substantial disadvantage compared to

[371]We accept that someone who is disabled and needs to have reasonable adjustments in place in order to be able to start work, could be placed at a disadvantage compared to a non-disabled person by this PCP. This would arise, for example, where the disabled employee was required to work at their employer’s site, but adjustments to the physical premises were needed to enable the employee to access the site. It would also arise where the employee needed equipment in order to be able to undertake work to the required standards.

[372]This was not the case with the Claimant. The Claimant did not ask if she could delay her start date before her employment commenced.

[373]Although there was a delay providing the Claimant with equipment that was intended to assist the Claimant in her role, this did not prevent her being able to attend the Respondent’s site as and when required or from undertaking work as detailed above. We therefore found that the Claimant was not put at a substantial disadvantage by this PCP and did not proceed to consider any adjustments. This legal complaint fails. Did the lack of an auxiliary aid, namely a wireless headset, put the claimant at a substantial disadvantage compared to someone without the claimant’s disability? (Issue 5.4)

[374]Our decision was that the lack of the wireless headset did not put the Claimant at a substantial disadvantage compared to someone without the Claimant’s disability. In fact, we decided that there was no disadvantage to the Claimant at all.

[375]We first considered why the Claimant said she needed a wireless headset. She told us that the reason that she wanted a wireless headset, rather than a wired one, was because if she had a spasm or tremor while wearing a wired headset, there was a possibility that the wire would cause damage to her equipment or injury to herself. She claimed that this had happened on 10 May 2022.

[376]We accepted the Claimant’s evidence on this point and therefore that using a wired headset presented a slight risk. We considered the risk to be low level, however, and insufficient for us to decide that not having a wireless headset created a substantial disadvantage for the Claimant.

[377]We also considered the extent to which the Claimant needed a headset at all to do her role. Our underlying finding, was she did not need one at all, but used one solely because this was her preference. This was ultimately the reason why we decided that there was no disadvantage to the Claimant at all by not having a wireless headset.

[378]We note that a wireless headset was not one of the pieces of equipment recommended as a result of the higher level assessment. That assessment made no recommendations about the Claimant using a headset at all.

[379]The Claimant used a headset when participating in calls and on-line meetings on her laptop. These made up only a small part of her role. She did not need to use a headset for these calls as she could join them using the speakers and microphone on her laptop. However, she told us that she preferred to use a headset for confidentiality reasons so that she could not be overheard by anyone in her home.

[380]We understood, based on what the Claimant told Ms Williams about her normal working hours, was that she would have been alone in her home working until the point at which her children came home from school. She then took a couple of hours off work, returning to it after she had fed her children and helped them with their homework. There was then some time in the early evening when the Claimant was working with her children in her home, but this was not a time when meetings or calls were generally conducted. Therefore we did not agree that the Claimant needed a headset for calls and meetings.

[381]The Claimant also used a headset while she was working on documents on her laptop or responding to emails. She used the headset to listen to educational webinars while she was working. The Claimant told us that she believed this helped her concentrate. The Claimant provided no evidence that linked this to her disability and we decided that this was purely a preference on her part and that she did not need a headset for this aspect f her role.

[382]As our decision was that the lack of the wireless headset did not put the Claimant at a substantial disadvantage compared to someone without the Claimant’s disability, this legal complaint fails. Discrimination Arising from Disability Did the Respondent Treat the Claimant Unfavourably

[383]We first considered whether the Claimant was treated unfavourably by the Respondent.

[384]The Claimant cited three ways in which she says she was treated unfavourably. These were:• subjecting her to the absence management procedure;

• subjecting her to the disciplinary (capability) procedure; and

• dismissing her.

[385]The Claimant was not subjected to the Respondent’s absence management procedure or its disciplinary (capability) procedure. However the absence and performance management parts of the Respondent’s Probationary Procedures were applied to her. We considered this to be equivalent to the other procedures and therefore we proceeded to consider these.

[386]As matter of principle, we took the view that subjecting someone to an internal process will not normally, of itself, constitute unfavourable treatment. This is providing the process is operated fairly and the employee involved is able to present evidence and rebut whatever is being alleged before being subjected to any sanction.

[387]An exception to this principle would arise if the procedure were being applied without any justification as an abuse, but this was not the case here. Applying the test for a detriment, it would not be reasonable for a worker to consider themselves to be disadvantaged by the initiation of a procedure where there is reasonable evidence that the procedure is applicable.

[388]In saying this, we acknowledge that being taken though a internal formal procedure is inevitably stressful, but unless there is evidence that the employee is too unwell to participate in the procedure, we see no reason why it should not be undertaken.

[389]In this case, the Claimant’s absence levels were above the stated minimum and her performance was not meeting the required standards during her probation. It was therefore entirely appropriate that the relevant parts of the probationary procedure were applied to her. The process itself was very fair. She had time to prepare for the meetings and was able to be accompanied, was given every opportunity to make her case as to why she should not be subjected to any sanction. We therefore do not consider this to have been unfavourable treatment.

[390]We therefore proceeded on the basis that the unfavourable treatment that we needed to consider was the Claimant’s dismissal. She had a warning prior to the dismissal, but if the dismissal was not unlawful, it would follow that the warning was also not unlawful.

[391]The reason for the unfavourable treatment

[392]The reason the Claimant was given a warning under the probationary period was because her performance was not meeting the required standards.

[393]The Claimant disputed the Respondent’s criticism of her performance, arguing at the time and before the Tribunal that it was overly harsh and unjustified. The evidence before us, however, demonstrated that the Claimant’s performance was not meeting the required standards. The tasks she had been asked to undertake were the simplest tasks expected of someone in her role, rather than the full range of work. She had failed to complete them on time and the quality of what she produced was poor. We were satisfied that the Respondent’s assessment of the Claimant’s poor performance was accurate.

[394]Ms Hainsworth decided that the Claimant should be dismissed because both her performance and attendance were failing to meet the required standards. Her decision was that the Claimant’s poor performance of itself would have justified terminating her employer. She took the same view of her attendance. Her decision was not based on the combination of poor performance and poor attendance. Something arising in consequence of disability

[395]Having decided that the reason for the Respondent treating the Claimant unfavourably was her poor performance and attendance levels we next considered whether these arose in consequence of her disability. The Claimant’s Absence

[396]We made a finding in the section on reasonable adjustments that all of the Claimant’s absences were disability-related and therefore for the purpose of this claim it follows that they arose in consequence of the Claimant’s disability. The Claimant not being able to carry out her role due to insufficient support structures and lack of reasonable adjustments?

[397]We have found the pleaded “something arising in consequence of disability” that was contained in the list of issues to be confusing. The relevant question is whether the Claimant’s poor performance arose because of the impact of her disabilities on her ability to perform her role. The question of what support structures and other adjustments were in place to prevent this impact is part of the analysis that should be undertaken when considering justification.

[398]Our finding in the section of reasonable adjustments was that the Claimant’s poor performance was in part attributable to her disability. As a result of her medical conditions, at the time of her dismissal, she was experiencing impaired cognitive functioning. We find that this partly explained her poor performance, but was not the entire reason for all of the poor performance. Was the treatment a proportionate means of achieving a legitimate aim?

[399]We considered the Respondent’s justification for its approach to the Claimant’s absence and poor performance separately, albeit the same aim is effectively relied on for both decisions.

[400]The Respondent’s aim was to ensure that it carried out its duties and responsibilities to users of its service as efficiently, adequately and appropriately as possible by employing staff who were capable of fulfilling the requirements of their role both in terms of performance and attendance.

[401]We considered this was a legitimate aim. The Respondent, a publicly funded body, needs policy staff to be effective in their roles in undertaking work to advise Ministers and help deliver the Department’s objectives. In the area the Claimant worked, the objectives were to support people with health conditions in and into work.

[402]The question for us was whether the Respondent’s treatment of the Claimant was proportionate or did it discriminate against a disabled employee unnecessarily. Our conclusion was that the Respondent’s approach to the Claimant’s absence levels was too discriminatory to be objectively justified. Its approach to the Claimant’s performance was objectively justified, however.

[403]When making her decision to dismiss for absence, Ms Hainsworth considered that the amount of absence the Claimant had had, and would be likely to have in the future, could not be supported due to the impact within a small team on delivery of briefings and meetings. We disagree with for several reasons as follows:• we did not consider the Claimant’s level of absence was overly high bearing in mind the complexity of her medical conditions;

• as explained in our findings on reasonable adjustments, the Respondent failed to properly apply the adjustment it considered reasonable when assessing the level of absence it could tolerate from the Claimant;

• the area the Claimant worked in was the Disability Confident Scheme. A member of the public would expect that this team to be an exemplar in making adjustments to accommodate the needs of disabled people, particular those with complex chronic medical conditions;

• although the Claimant was part of a small team, the Respondent is a very large organisation and could have assigned additional resource to the team to enable it to tolerate the Claimant’s absence levels given the area of work; and

• the same team was able to tolerate the much longer absence of a more senior member of staff.

[404]When making the decision to dismiss the Claimant for her performance, Ms Hainsworth took into account that only part of the reason for the Claimant’s difficulties was related to her disability. With all reasonable adjustments in place to support the Claimant her work was still not at an acceptable standard.

[405]The Claimant was only able to be given the simplest level of tasks that a policy graduate at her grade would be expected to perform and even then, produced work that was repeatedly late and had to be closely reviewed and corrected by others. This was despite having been given training and support over a period of 10.5 months.

[406]Had the Claimant been able to produce the simplest pieces of work to the required level of quality on time, the position would have been different. This would have meant she was making a contribution to the team’s work, albeit a reduced one. We would have expected a large organisation such as the Respondent working in the area it was, to have been able to accommodate this. However, the Claimant’s poor performance resulted in generating additional work for her colleagues. The position was markedly different from the additional work involved in covering for the Claimant’s absences from time to time. The performance issues were a fundamental problem.

[407]We considered the Respondent’s decision to dismiss the Claimant based on her performance was objectively justified. The complaint that the Claimant’s dismissal constituted unlawful disability discrimination under section 15 of the Equality Act 2010 therefore failed. Direct race discrimination and race-related harassment (Equality Act 2010 section 13)

[408]The final legal complaints we considered were the Claimant’s complaints of direct race discrimination/ race-related harassment. Amanda Wandsworth calling the claimant ‘wild’ at a performance management meeting on 11 March 2022 (Issues 7.1.1 and 8.1.1)

[409]We do not uphold this allegation on the facts. The legal complaint therefore

[410]Ms Wandsworth denied calling the Claimant wild at any time. We prefer her evidence on this point because the Claimant was extremely unclear about this allegation. She failed to cover it in her witness statement and when giving evidence failed to confirm when the comment was said to have been made (i.e. on 17 February or 11 March 2022) and in what context.

[411]The Claimant did not accuse Ms Wandsworth of making this in any of the grievances she submitted to the Respondent while employed. If the reason for this was because she was concerned not to raise it while she was employed, it was also not mentioned in her appeal against dismissal or when she submitted her claim. The first mention of this allegation was in the amendment application made to the tribunal on 9 November 2023. Implying that the claimant was ‘wild’ and ‘unstable’ in a referral to OH in March 2022 (Issues 7.1.2 and 8.1.2)

[412]We do not uphold this allegation on the facts. The legal complaint therefore

[413]Having read the wording used in the referral we do not find that it implied that the Claimant was wild and unstable at all. The referral simply says that the Claimant was “really paranoid” about which she could not be reassured. This language used does not imply wild or unstable behaviour on her part. The language used instead reflects the medical language used by the Claimant. She had self-reported that she had been diagnosed with paranoia to the Respondent’s OH assessors who had made reference to this medical terminology in their reports. She had also not objected to these words being used about her in the notes of the meeting held on 11 March 2022. Julie Williams threatening the claimant with ‘deportation’ at a performance management meeting on 11 March 2022? (Issues 7.1.3 and 8.1.3)

[414]We do not uphold this allegation on the facts. The legal complaint therefore

[415]Ms Williams denied threatening the Claimant with deportation at any time. We prefer her evidence on this point because the Claimant was also extremely unclear about this allegation. She failed to cover it in her witness statement and when giving evidence failed to confirm when the comment was said to have been made (i.e. on 17 February or 11 March 2022) and in what context.

[416]The Claimant did mention this comment in the last grievances she submitted to the Respondent while employed. This was her grievance of 19 July 2022. This is the lengthy grievance that accuses her colleagues of collaborating with her former neighbours against her. We do not consider the document to be a reliable record of what happened during the Claimant’s employment or what was said on 17 February or 11 March 2022.

[417]The Claimant did not mention this allegation in her appeal against dismissal or in the first claim she submitted to the employment tribunal. The first mention of this allegation was in the amendment application made to the tribunal on 9 November 2023. Time

[418]Several of the Claimant’s legal complaints were presented outside the normal time limits. These were the complaints of direct disability discrimination, disability-related harassment, direct race discrimination and race-related harassment. As these complaints did not success, it was not necessary for us to consider whether they were submitted in time under the continuing act provisions or whether we should grant an extension time on a just and equitable basis. Employment Judge E Burns 16 June 2025 19 June 2025 ...................................................................... ...................................................................... For the Tribunals Office Appendix List of Issues (Questions for the Tribunal)

List of Issues

[1]Time limits1.1 Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 23 April 2022 may not have been brought in time.

1.2 Were the discrimination complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:1.2.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates?

1.2.2 If not, was there conduct extending over a period?

1.2.3 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?

1.2.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:1.2.4.1 Why were the complaints not made to the Tribunal in time?

1.2.4.2 In any event, is it just and equitable in all the circumstances to extend time?

[2]Disability2.1 The claimant is a disabled person with the following impairments:

2.2 Transverse myelitis

2.3 Mild-moderate psychosis

2.4 Incontinence due to neuropathic bladder.

[3]Direct disability discrimination (Equality Act 2010 section 13)3.1 Did the respondent fail to consult the claimant prior to her Occupational Health Assessment?

3.2 Was that less favourable treatment? The Tribunal will decide whether the claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the claimant’s. If there was nobody in the same circumstances as the claimant, the Tribunal will decide whether they were treated worse than someone else would have been treated.

3.3 If so, was it because of disability?

[4]Discrimination arising from disability (Equality Act 2010 section 15)4.1 Did the respondent treat the claimant unfavourably by:4.1.1 Subjecting her to the absence management procedure;

4.1.2 Subjecting her to the disciplinary (capability) procedure;

4.1.3 Dismissing her?

4.2 Did the following things arise in consequence of the claimant’s disability:4.2.1 the claimant’s absence;

4.2.2 not being able to carry out her role due to insufficient support structures and lack of reasonable adjustments?

4.3 Was the unfavourable treatment because of any of those things?

4.4 Was the treatment a proportionate means of achieving a legitimate aim?

4.5 The Tribunal will decide in particular:4.5.1 was the treatment an appropriate and reasonably necessary way to achieve those aims;

4.5.2 could something less discriminatory have been done instead;

4.5.3 how should the needs of the claimant and the respondent be balanced?

4.6 Did the respondent know or could it reasonably have been expected to know that the claimant had the disability? From what date?

[5]Reasonable Adjustments (Equality Act 2010 sections 20 & 21)5.1 Did the respondent know or could it reasonably have been expected to know that the claimant had the disability? From what date?

5.2 A “PCP” is a provision, criterion or practice. Did the respondent have the following PCPs:5.2.1 having an absence management policy which is triggered after a fixed number of absences;

5.2.2 not replacing ‘buddies’ who leave while they are acting in a buddy capacity;

5.2.3 not offering structured support to new members of staff;

5.2.4 delaying provision of reasonable adjustments;

5.2.5 applying capability procedures where performance is not considered satisfactory;

5.2.6 requiring new employees to start working on their start date;

5.2.7 not operating the Disability Confidence Scheme if it is suspected that the employee is using it in connection with a disciplinary process; and/or

5.2.8 requiring employees to work full-time?

5.3 Did the PCPs put the claimant at a substantial disadvantage compared to someone without the claimant’s disability due to her complex needs which made her work less accessible?

5.4 Did the lack of an auxiliary aid, namely a wireless headset, put the claimant at a substantial disadvantage compared to someone without the claimant’s disability?

5.5 Did the respondent know or could it reasonably have been expected to know that the claimant was likely to be placed at the disadvantage?

5.6 What steps could have been taken to avoid the disadvantage? The claimant suggests:5.6.1 amending the number of absences which trigger the absence management policy to discount disability-related absences and/or work-related absences;

5.6.2 finding a new buddy to replace a buddy who left;

5.6.3 offering structured support;

5.6.4 accelerating the provision of agreed reasonable adjustments;

5.6.5 amending the capability procedures to take account of the impact of lack of reasonable adjustments on performance;

5.6.6 allowing disabled employees to delay their start date until reasonable adjustments have been put in place;

5.6.7 redeploying her under the Disability Confidence Scheme; and/or

5.6.8 allowing her to work part-time hours.

5.7 Was it reasonable for the respondent to have to take those steps and when?

5.8 Did the respondent fail to take those steps?

[6]Harassment related to disability (Equality Act 2010 section 26)6.1 Did the respondent make a referral to the Occupational Health Consultant that was harshly worded with a focus on mental health and included personal details without the claimant’s consent?

6.2 If so, was that unwanted conduct?

6.3 Did it relate to disability?

6.4 Did the conduct have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant?

6.5 If not, did it have that effect? The Tribunal will take into account the claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.

[7]Direct race discrimination (Equality Act 2010 section 13)7.1 Did the respondent do the following things:7.1.1 Amanda Wandsworth calling the claimant ‘wild’ at a performance management meeting on 11 March 2022;

7.1.2 Implying that the claimant was ‘wild’ and ‘unstable’ in a referral to OH in March 2022;

7.1.3 Julie Williams threatening the claimant with ‘deportation’ at a performance management meeting on 11 March 2022?

7.2 Was that less favourable treatment? The Tribunal will decide whether the claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the claimant’s. If there was nobody in the same circumstances as the claimant, the Tribunal will decide whether they were treated worse than someone else would have been treated. The claimant has not named anyone in particular who they say was treated better than they were.

7.3 If so, was it because of race?

[8]Harassment related to race (Equality Act 2010 section 26)8.1 Did the respondent do the following things:8.1.1 Amanda Wandsworth calling the claimant ‘wild’ at a performance management meeting on 11 March 2022;

8.1.2 Implying that the claimant was ‘wild’ and ‘unstable’ in a referral to OH in March 2022;

8.1.3 Julie Williams threatening the claimant with ‘deportation’ at a performance management meeting on 11 March 2022?

8.2 If so, was that unwanted conduct?

8.3 Did it relate to race?

8.4 Did the conduct have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant?

8.5 If not, did it have that effect? The Tribunal will take into account the claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.

[9]Remedy for discrimination9.1 Should the Tribunal make a recommendation that the respondent take steps to reduce any adverse effect on the claimant? What should it recommend?

9.2 What financial losses has the discrimination caused the claimant?

9.3 Has the claimant taken reasonable steps to replace lost earnings, for example by looking for another job?

9.4 If not, for what period of loss should the claimant be compensated?

9.5 What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that?

9.6 Has the discrimination caused the claimant personal injury and how much compensation should be awarded for that?

9.7 Is there a chance that the claimant’s employment would have ended in any event? Should their compensation be reduced as a result?

9.8 Should interest be awarded? How much?

[1]There is no reasonable prospect of the original decision being varied or revoked.

[2]I considered the arguments about the timeline set out in the Claimant’s application at the remedy hearing. For clarity, I accept that the Claimant may have had concerns about the impact her absences might have on her probation prior to 16 June 2022. However, she can only be compensated for injuries arising from unlawful discrimination. The Claimant did not know, and could not have known what approach the Respondent intended to adopt in relation to the absences until 16 June 2022.

[3]The Claimant’s additional comments about the reliability of the medical evidence and my interpretation of them do not lead me to consider that it is in the interests of justice to revisit the decision I made with regard to her claim for personal injury. Case Number: 2210563/2022 Date: 6 January 2026 Approved by: