Ms G Moore v Royal Borough of Kensington and Chelsea and Ms R Tolhurst: 2214614/2023

EMPLOYMENT TRIBUNALS

Case No 2214614/2023

Between

Ms G MooreClaimant

Royal Borough of Kensington and Chelsea and Ms R TolhurstRespondent

Before

Employment Judge Woodhead

Date 28 November 2024

JUDGMENT

[1]The complaint of unfair dismissal is not well-founded and is dismissed.

[2]The complaints of direct disability discrimination are not well-founded and are dismissed.

[3]The complaints of indirect disability discrimination are not well-founded and are dismissed.

[4]The complaints of harassment related to disability are not well-founded and are dismissed.

[5]The complaints of unfavourable treatment because of something arising in consequence of disability are not well-founded and are dismissed.

[6]The complaints of failure to make reasonable adjustments for disability are not well-founded and are dismissed. 1 of 160

REASONS

[7]The Claimant has suffered a number of traumatic events in her life which have affected her mental health. The Claimant was employed by R1, from 6 August 2007.

[8]The Claimant’s most recent role with R1 was as a corporate fraud investigator. The Claimant underwent IVF treatment and happily became pregnant with twins. Very sadly she lost one of the twins during the pregnancy. She gave birth to her other baby, who was born at around he was born at 7.5 months into the Claimant’s pregnancy, in June 2021 and she started maternity leave. For reasons we do not need to detail here, the birth of her child was particularly traumatic for the Claimant.

[9]This was of course during the COVID pandemic. The Claimant notified R1 that she wanted to return from maternity leave on 13 December 2021 and then use her accrued but untaken holiday with a return to work on 11 January 2022. The Claimant was understandably concerned about her son contracting COVID as she had been advised that, up to the time he was a year old (but really until 13 months after his birth, because he was premature), he would be vulnerable because his lungs were not fully developed at birth and his immune system was suppressed.

[10]After a period of COVID lockdown R1, on 28 January 2022, the Chief Executive of R1 sent a council-wide announcement confirming that all employees were expected to return to hybrid working with effect from 21 January 2022.

[11]The Claimant had difficulties with this requirement (which we explain more fully in this judgment) and then fell ill with anxiety and post traumatic stress disorder (the disability on which she relies) on 7 February 2022. She did not return to work and was ultimately dismissed on 19 June 2023 (the Respondents say on the grounds of capability). The Claimant remains unfit to work.

[12]The Claimant cited PTSD & generalised anxiety disorder as her disabilities. She relied on them either separately or together as being disabilities. R1 admits knowledge that the Claimant had an anxiety disorder which met the definition of a disability in section 6 EA 2010 as of 9 December 2022. The Respondents admit knowledge that the PTSD would meet the definition of disability as of 9 December 2022.

[13]Early conciliation started on 17 August 2023 and ended on 1 September 2023. The Claimant presented her claim on 18 September 2023.

[14]The Claimant brings claims of unfair dismissal, direct disability discrimination, indirect disability discrimination, discrimination arising from disability, failure to make reasonable adjustments and disability harassment. The issues that we were asked to be determined were agreed by the parties and are set out in the Appendix to this judgment (the “LOI”). 2 of 160

THE HEARING

[15]This claim was listed for a hearing of seven days at a case management preliminary hearing on 24 November 2023. Owing to circumstances relating to the Claimant the hearing could not start as scheduled on 5 September 2024 and 6 September 2024 could only be used for preliminary matters and reading.

[16]Late in the morning on 6 September 2024 we were provided with:16.1 A bundle totalling 624 pages (with a further 18 pages being added during the course of the hearing). Page references are included in the following format [NUMBER].

16.2 An agreed chronology;

16.3 An agreed cast list;

16.4 A witness statement bundle totalling 98 pages and including witness statements from:16.4.1 the Claimant totalling 44 pages;

16.4.2 Ms J Neild (the Claimant’s Trade Union Representative) totalling nine pages (paragraphs are referred to as follows: “JNWS[]”);

16.4.3 Mrs J Moore (the Claimant’s mother) of one page, she did not give evidence at the hearing (paragraphs are referred to as follows: “JMWS[]”);

16.4.4 Mr N Kasic (a previous line manager of the Claimant) of two pages (paragraphs are referred to as follows: “NKWS[]”);

16.4.5 Mr V Chelmus of one page (he did not give evidence) (paragraphs are referred to as follows: VCWS[]”);

16.4.6 Mr D Gill-Collis (the Claimant’s line manager) of 10 pages (paragraphs are referred to as follows: “GCWS[]”);

16.4.7 Mr A Hyatt (Mr Gill-Collis’ Line Manager) of five pages (paragraphs are referred to as follows: “AHWS[]”);

16.4.8 Miss F Muhammad (HR Business Partner for the First Respondent) of nine pages (paragraphs are referred to as follows: “FMWS[]”);

16.4.9 Ms R Tolhurst (Second Respondent and the First Respondent’s Strategic HR Lead, HR Policy and Employee Relations) of eight pages (paragraphs are referred to as follows: “RTWS[]”);

16.4.10 Mr D Hughes (the manager who took the decision to dismiss the Claimant who is the Tri-Borough Director of Audit, Fraud, Risk and Insurance of nine pages (paragraphs are referred to as follows: “DHWS[]”).

16.5 A list of issues (“LOI”). 3 of 160

[17]Most of the first day of the hearing on 6 September 2024 was taken up with:17.1 The Tribunal seeking clarification on the list of issues. We were provided with a final list of issues on the morning of 10 September 2024;

17.2 Hearing an application for disclosure by the Claimant and the Tribunal consequently ordering that R1 undertake a reasonable search for and produce to the Claimant and Tribunal evidence of how they covered the Claimant’s role during the Claimant’s sickness absences and then recruited a permanent replacement for her after her dismissal. This was to be completed before the Claimant’s evidence concluded.

17.3 Adjustments needed by the Claimant for the hearing which we asked to be put in writing before the Claimant started to give evidence on Monday 9 September 2024 so that the adjustments could be agreed and followed.

17.4 An application to amend the Response which ultimately was not opposed by the Claimant and which we granted on 9 September 2024.

17.5 A question as to whether everyone had a complete version of the bundle.

17.6 Discussing and agreeing a provisional timetable that would allow for evidence to be concluded by lunchtime on 13 September 2024 and for submissions to be made that afternoon.

[18]We made clear our expectations that in this claim we would want written submissions.

[19]This left us with limited time to complete our reading to allow the hearing to go ahead on Monday 10 September 2024. We note that the claim had been listed since November of the previous year and both parties had been professionally represented since then.

[20]On Monday 10 September 2024 we spent time agreeing the adjustments requested by the Claimant to allow for the challenges she has with her health. Further time was then needed to resolve other preliminary matters (which might have been avoided):20.1 The List of Issues we had been provided did not cover the verbal clarification offered to us on 6 September 2024. It only covered the outstanding matters;

20.2 New documents that the Claimant sought to adduce relating to arrangements for childcare. R1 said that the documents were incomplete but it was agreed that we would consider the application when we had the Claimant’s additional documents. In the event R1 accepted that the new documents should be allowed on 10 September 2024 and we agreed that they would be allowed. They included:20.2.1 A Claimant bank statement (six pages)

20.2.2 Correspondence between the Claimant and Sitters Support (3 pages) on 9 September 2024; and 4 of 160

20.2.3 Correspondence between the Claimant and Sitters Support (1 page) on 24 July 2022;

20.3 Problems with the page referencing in the Claimant’s witness statement which she blamed on R1’s approach to including documents she had provided in a new version of the bundle;

20.4 New documents that the Claimant sought to adduce relating to the question of the rules relating to Ill Health Retirement:20.4.1 A printout of a page from the Local Government Pension Scheme Website. In this regard R1 ultimately agreed that the document was relevant and that it would also search for corresponding internal policy documents.

20.4.2 Documents relating to ill health retirement at Westminster City Council.

[21]This meant that we were not in a position to start to hear the Claimant’s evidence until after mid-day. Unfortunately we also lost time between 13:50 and 15:35 because of an IT issue suffered by Mr Shaw (which cost about 1 hour 45 minutes of time). We dealt with some practical issues during that time.

[22]On the third day of the hearing, 10 September 2024, before the Claimant’s evidence had concluded we needed to spend further time discussing disclosure and additions to the bundle and we also had to spend yet more time on the list of issues. Time was lost in getting the Claimant’s final witness (Miss Neild into the hearing). However, by the close of the day we had concluded the Claimant’s evidence and asked the Claimant’s counsel to ensure that he managed his cross examination such that the evidence was concluded on Friday morning and so we could hear closing submissions on Friday afternoon.

[23]On 11 September 2024 we heard the evidence of Mr Gill-Collis. We offered to sit later than normal and to start the evidence of Mr Hyatt and gave the parties time to discuss the timetable (including reminding them of the need to factor in time(i) for us to consider if we had any questions and ask questions we did have

(ii) for re-examination and

(iii) for written submissions to be finalised and for us to read them before we heard oral submissions on Friday afternoon). The Parties representatives were happy to finish at 16:10 and not start Mr Hyatt’s evidence.

[24]On 12 September 2024 we heard the evidence of Mr Hyatt, Ms Muhammad and Ms Tolhurst.

[25]On 13 September 2024 we heard the evidence of Mr Hughes, the parties provided us with written submissions and we heard oral submissions in the afternoon.

[26]We made sure that we took regular breaks, particularly during the Claimant’s evidence, to allow for her ill health and we made clear that she or anyone participating in the hearing could ask for breaks if they needed it.

[27]We reminded witnesses under oath that they were not permitted to communicate with others about the case during breaks or adjournments while they were giving evidence under oath. 5 of 160

THE LAW

[28]Notwithstanding the order in which the issues are summarised in the LOI, we considered it more appropriate to reach our findings first on the allegations of discrimination and then consider the question of whether the Claimant was unfairly dismissed. We therefore set out the law that we have applied in that order. We also considered that it would be more appropriate in this case to include our analysis and conclusions in our findings of fact, notwithstanding that is not the conventional approach. Time limits – the EqA

[29]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.

[30]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.

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

[32]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.

[33]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.

[34]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).

[35]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

[36]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 6 of 160 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

as well as other potentially relevant factors.

[37]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.

[38]In the case of Harden v(1) Wootlif and

(2) Smart Diner Group Ltd

UKEAT/0448/14

the Employment Appeal Tribunal reminded employment tribunals that we must considering the just and equitable application in respect of each respondent separately and that it is open to us to reach different decisions for different respondents. Discrimination under the EqA

[39]The Equality Act 2010 (EqA) protects employees and applicants for employment from discrimination based on or related to a number of ‘protected characteristics’ (section 4). These include disability (section 6). Disability

[40]We accept the Respondents’ submission in respect of the authority given by paragraphs 24-26 of the Court of Appeal’s decision in All Answers Ltd v W

[2021] EWCA Civ 606

, as follows: “24. A person has a disability within the meaning of section 6 of the 2010 Act if he or she(1) has a physical or mental impairment which has

(2) a substantial and

(3) long term adverse effect on that person’s ability to carry out day to day activities. In the present case, the respondent accepts that, as at 21 and 22 August 2018, each claimant had a mental impairment which had a substantial adverse effect on that claimant’s ability to carry out day to day activities. The only issue in this case is whether the impairment had a “long term” substantial adverse affect. 25. Paragraph 2(1)(b) of Schedule 1 to the 2010 Act defines long term, so far as material to this case, as “likely to last at least 12 months”. “Likely” in this context means “could well happen”: see Boyle v SCA Packaging Ltd.

[2009] UKHL 37

[2009] ICR 1056

, per Lord Hope at paragraph 4, and Lord Rodger at paragraph 42, Baroness Hale at paragraphs 70 to 72 (with whom Lord Neuberger agreed at paragraph 81), Lord Brown at paragraph 77. 26. The question, therefore, is whether, as at the time of the alleged discriminatory acts, the effect of an impairment is likely to last at least 12 months. That is to be assessed by reference to the facts and 7 of 160 circumstances existing at the date of the alleged discriminatory acts. A tribunal is making an assessment, or prediction, as at the date of the alleged discrimination, as to whether the effect of an impairment was likely to last at least 12 months from that date. The tribunal is not entitled to have regard to events occurring after the date of the alleged discrimination to determine whether the effect did (or did not) last for 12 months. That is what the Court of Appeal decided in McDougall v Richmond Adult Community College: see per Pill LJ (with whom Sedley LJ agreed) at paragraphs 22 to 25 and Rimer LJ at paragraphs 30-35. That case involved the question of whether the effect of an impairment was likely to recur within the meaning of the predecessor to paragraph 2(2) of Schedule 1 to the 2010 Act. The same analysis must, however, apply to the interpretation of the phrase “likely to last at least 12 months” in paragraph 2(1)(b) of the Schedule. I note that that interpretation is consistent with paragraph C4 of the guidance issued by the Secretary of State under section 6(5) of the 2010 Act which states that in assessing the likelihood of an effect lasting for 12 months, “account should be taken of the circumstances at the time the alleged discrimination took place. Anything which occurs after that time will not be relevant in assessing this likelihood”. Direct disability discrimination

[41]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 because of a protected characteristic as defined in section 13.

[42]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’.

[43]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.

[44]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.

[45]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.

[46]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 disability. However, in some cases, for example where there is only a 8 of 160 hypothetical comparator, these questions cannot be answered without first considering the ‘reason why’ the Claimant was treated as she was.

[47]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 Respondents, that the Respondents committed an act of unlawful discrimination.

[48]At the second stage, discrimination is presumed to have occurred, unless the Respondents can show otherwise. The standard of proof is again on the balance of probabilities. In order to discharge that burden of proof, the Respondents must adduce cogent evidence that the treatment was in no sense whatsoever because of the Claimant’s disability. The Respondents do not have to show that their conduct was reasonable or sensible for this purpose, merely that its explanation for acting the way that it did was non-discriminatory.

[49]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 Madarassy v Nomura International plc

[2007] IRLR 246

, CA. 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.

[50]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)

[51]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) 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/her favour that the burden at the first stage has been discharged (Efobi v Royal Mail Group Ltd

[2019] ICR 750

, para 13).

[52]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. 9 of 160

[53]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. 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 - section 15 EqA

[54]Section 15 EqA provides: “(1) 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. (2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability”.

[55]As to what constitutes “unfavourable treatment”, the Supreme Court in Williams v Trustees of Swansea University Pension and Assurance Scheme and anor

[2019] ICR 230

held that it is first necessary to identify the relevant treatment and it must then be considered whether it was unfavourable to the Claimant.

[56]The Court said that little was likely to be gained by differentiating unfavourable treatment from analogous concepts such as “detriment” found elsewhere in the Act, referring to a relatively low threshold of disadvantage being needed. One could answer the question by asking whether the Claimant was in as good a position as others.

[57]What caused the unfavourable treatment requires consideration of the mind(s) of alleged discriminator(s) and thus that the reason which is said to arise from disability be more than just the context for the unfavourable treatment. There need only be a loose connection between the unfavourable treatment and the alleged reason for it, and it need not be the sole or main cause of the treatment, though the reason must operate on the alleged discriminators’ conscious or unconscious thought processes to a significant extent (Charlesworth v Dronsfield Engineering

UKEAT/0197/16

[58]By analogy with Igen, “significant” in this context must mean more than trivial. Whether the reason for the treatment was “something arising in consequence of the Claimant’s disability” could describe a range of causal links and is an objective question, not requiring an examination of the alleged discriminator’s thought processes.

[59]Simler P in Pnaiser v NHS England

[2016] IRLR 170

, EAT, at [31], gave the following guidance as to the correct approach to a claim under section 15 EqA: '(a) 'A tribunal must first identify whether there was unfavourable treatment and by whom: in other words, it must ask whether A treated B unfavourably in the respects relied on by B. No question of comparison arises. (b) The tribunal must determine what caused the impugned treatment, or what was the reason for it. The focus at this stage is on the reason in the mind of A. An examination of the conscious or unconscious thought 10 of 160 processes of A is likely to be required, just as it is in a direct discrimination case. Again, just as there may be more than one reason or cause for impugned treatment in a direct discrimination context, so too, there may be more than one reason in a s.15 case. The “something” that causes the unfavourable treatment need not be the main or sole reason, but must have at least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it. (c) Motives are irrelevant. The focus of this part of the enquiry is on the reason or cause of the impugned treatment and A's motive in acting as he or she did is simply irrelevant: see Nagarajan v London Regional Transport

[1999] IRLR 572

. A discriminatory motive is emphatically not (and never has been) a core consideration before any prima facie case of discrimination arises. (d) The tribunal must determine whether the reason/cause (or, if more than one), a reason or cause, is 'something arising in consequence of B's disability'. That expression 'arising in consequence of' could describe a range of causal links. Having regard to the legislative history of s.15 of the Act (described comprehensively by Elisabeth Laing J in Hall), the statutory purpose which appears from the wording of s.15, namely, to provide protection in cases where the consequence or effects of a disability lead to unfavourable treatment, and the availability of a justification defence, the causal link between the something that causes unfavourable treatment and the disability may include more than one link. In other words, more than one relevant consequence of the disability may require consideration, and it will be a question of fact assessed robustly in each case whether something can properly be said to arise in consequence of disability. (e) For example, in Land Registry v Houghton

UKEAT/0149/14

[2015] All ER (D) 284

(Feb) a bonus payment was refused by A because B had a warning. The warning was given for absence by a different manager. The absence arose from disability. The tribunal and HHJ Clark in the EAT had no difficulty in concluding that the statutory test was met. However, the more links in the chain there are between the disability and the reason for the impugned treatment, the harder it is likely to be to establish the requisite connection as a matter of fact. (f) This stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator. (g) There is a difference between the two stages – the “because of” stage involving A's explanation for the treatment (and conscious or unconscious reasons for it) and the “something arising in consequence” stage involving consideration of whether (as a matter of fact rather than belief) the “something” was a consequence of the disability. (h) Moreover, the statutory language of s.15(2) makes clear (as Miss Jeram accepts) that the knowledge required is of the disability only, and does not extend to a requirement of knowledge that the “something” 11 of 160 leading to the unfavourable treatment is a consequence of the disability. Had this been required the statute would have said so. Moreover, the effect of s.15 would be substantially restricted on Miss Jeram's construction, and there would be little or no difference between a direct disability discrimination claim under s.13 and a discrimination arising from disability claim under s.15. (i) As Langstaff P held in Weerasinghe, it does not matter precisely in which order these questions are addressed. Depending on the facts, a tribunal might ask why A treated the claimant in the unfavourable way alleged in order to answer the question whether it was because of “something arising in consequence of the claimant's disability”. Alternatively, it might ask whether the disability has a particular consequence for a claimant that leads to “something” that caused the unfavourable treatment.''

[60]The burden of establishing a proportionate means defence is on the Respondent. When assessing whether the treatment in question was a proportionate means of achieving a legitimate aim, the principle of proportionality requires an objective balance to be struck between the discriminatory effect of the measure and the needs of the undertaking. The more serious the disparate adverse impact, the more cogent must be the justification for it: Hardys & Hansons plc v Lax

[2005] IRLR 726

per Pill LJ at paragraphs [19]–[34], Thomas LJ at [54]–[55] and Gage LJ at [60]. It is for the employment tribunal to weigh the reasonable needs of the undertaking against the discriminatory effect of the employer's measure and to make its own objective assessment of whether the former outweigh the latter. There is no 'range of reasonable response' test in this context: Hardys & Hansons plc v Lax

[2005] IRLR 726

, CA.

[61]In Homer v Chief Constable of West Yorkshire Police

[2012] UKSC 15

it was said, approving Mummery LJ in R (Elias) v Secretary of State for Defence

[2006] EWCA Civ 1293

, that what is required is: first, a real need on the part of the Respondent; secondly, that what it did was appropriate – that is rationally connected – to achieving its objectives; and thirdly, that it was no more than was necessary to that end.

[62]It is also appropriate to ask whether a lesser measure could have achieved the employer’s aim – Essop and Naeem v Home Office (UK Border Agency) and Secretary of State for Justice

[2017] UKSC 27

[63]A complaint of discrimination arising from disability will also be defeated if the Respondent can show that at the time of the unfavourable treatment, it did not know and could not reasonably be expected to know that the Claimant was a disabled person. Indirect disability discrimination

[64]Section 19 EqA provides: 12 of 160(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.

(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if— (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) it puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim.

(3) The relevant protected characteristics are— age; disability; gender reassignment; marriage and civil partnership; race; religion or belief; sex; sexual orientation.” Meaning of provision, criterion or practice “PCP”

[65]The phrase Provision, Criterion or Practice is to be construed widely in accordance with the EHCR Code. “Provision” means any contractual or non-contractual provision or policy. “Criterion” means any requirement, pre-requisite, standard, condition or measure applied whether desirable or unconditional. “Practice” means the employer’s approach to a situation if it does happen or may happen in the future. All that is necessary here is that there is a general or habitual approach by the employer Williams v Governing Body of Alderman Davies Church in Wales Primary School

[2020] IRLR 589

[66]Generally PCP’s suggest that there is a state of affairs that exists or would exist if the situation were to occur again. It means that there are things that an employer does do or would do should the issue arise in the future. A one off decision can also be a provision Starmer v British Airways Plc

[2005] IRLR 862

EAT. This may include a one off act or decision only applied to one person, but similarly, one off acts and decisions are not automatically PCPs Ishola v Transport for London

[2020] EWCA Civ 112

(see also ‘reasonable adjustments’ below). Group disadvantage

[67]For a case of indirect discrimination to succeed, there must be both personal disadvantage and group disadvantage to those who share their protected characteristic(s).

[68]The correct test for this is not whether there was an adverse effect on the group, but whether a seemingly neutral requirement has a discriminatory impact Eweida v British Airways Plc

[2010] EWCA Civ 80

. 13 of 160

[69]In doing so, the Claimant does not need to prove why a PCP is having the effect of disadvantaging the group they belong to, they just have to prove that the PCP was having that effect. Also, the Claimant does not need to prove that all people belonging to the comparison pool are in fact disadvantaged. Some will be some who will not be. What is for the Claimant to prove on balance is that the group is particularly disadvantaged as a result of the PCP whether or not it actually affects all of that group Essop and Naeem v Home Office (UK Border Agency) and Secretary of State for Justice

[2017] UKSC 27

[70]The Claimant must also show that those who share the same protected characteristic were put at a particular disadvantage, which is not defined by the Equality Act 2010. This has been determined by the ECJ as meaning “that it is particularly persons [with the relevant protected characteristic] who are at a disadvantage because of the measure at issue” Chez Razpredelenie Bulgaria AD v Komisia za Zashtita ot Diskriminatsia C-83/14

[2015] IRLR 746

. It has nothing to do with how grave the disadvantage is or that the disadvantage has to be unique to that particular group. The group simply has to be at more of a disadvantage compared to a comparator group who have also been subjected to the PCP.

[71]The comparator group or pool of people must be people who do not share the protected characteristic relied upon, but who are in circumstances that are not materially different from the particularly disadvantaged group Statutory code of practice paragraph 4.18. In addition, the pool must be one that realistically tests the allegation of indirect discrimination being made by the Claimant Ministry of Defence v DeBique

[2010] IRLR 471

EAT. Ultimately, regardless of the pleaded case and submissions by the parties, the Tribunal has the ultimate discretion to decide what the correct pool is because if the tribunal gets the pool wrong that has been found to be an error of law Naeem v Secretary of State for Justice

[2014] IRLR 520

EAT. Personal disadvantage

[72]The Claimant must also prove that the PCP put them at the disadvantage complained about and that the disadvantage they have is the same as the disadvantage their group has because of the words “that disadvantage” in s19 (1)(c). Causation

[73]Both the group disadvantage and the personal disadvantage must be caused by the application of the PCP rather than because of any particular characteristic. In Essop and Naeem v Home Office (UK Border Agency) and Secretary of State for Justice

[2017] UKSC 27

Lady Hale said at paragraph 25: “A second salient feature is the contrast between the definitions of direct and indirect discrimination. Direct discrimination expressly requires a causal link between the less favourable treatment and the protected characteristic. Indirect discrimination does not. Instead it requires a causal link between the PCP and the particular disadvantage suffered by the group and the individual. The reason for this is that the prohibition of direct 14 of 160 discrimination aims to achieve equality of treatment. Indirect discrimination assumes equality of treatment - the PCP is applied indiscriminately to all - but aims to achieve a level playing field, where people sharing a particular protected characteristic are not subjected to requirements which many of them cannot meet but which cannot be shown to be justified. The prohibition of indirect discrimination thus aims to achieve equality of results in the absence of such justification. It is dealing with hidden barriers which are not easy to anticipate or to spot”.

[74]If the Claimant is not affected by the PCP themselves, for example by there being a height restriction of 5ft 9 inches or above, and they are taller than this, then their claim fails. Similarly, if on average the group relied upon was taller than 5ft 9 inches, then it cannot be said that the PCP caused the group to be disadvantaged either. So in cases where the PCP does not produce a simple outcome of having two result for the group, namely compliance or non compliance, but has a scale of effect, then, following McNeil and others v R&C Comrs

[2019] EWCA Civ 1112

, the correct approach is to look at the average impact over the group.

[75]In addition, a person will still have a claim if they are personally disadvantaged by a PCP applied to a group of people that they do not belong to themselves, which causes that group a particular disadvantage Chez Razpredelenie Bulgaria AD above. Reasonable Adjustments

[76]By section 39 (5) EqA a duty to make adjustments applies to an employer. By section 21 EqA a person who fails to comply with a duty on him to make adjustments in respect of a disabled person discriminates against the disabled person.

[77]Section 20(3) EqA provides that there is a requirement on an employer, where a provision, criterion or practice of the employer puts a disabled person at a substantial disadvantage in relation to a relevant matter, in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

[78]Under s.20(5) EqA the obligation to make reasonable adjustments with regard to an auxiliary aid is set out as follows: ‘The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid’

[79]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.

[80]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 15 of 160 placed at a substantial disadvantage as (Paragraph 20 (1)(b) Schedule 8 of the Equality Act 2010).

[81]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. A tribunal must first identify:81.1 the PCP applied by or on behalf of the employer

81.2 the identity of non-disabled comparators;

81.3 the nature and extent of the substantial disadvantage suffered by the Claimant in comparison with the comparators.

[82]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.

[83]The phrase PCP is interpreted broadly. The EHRC Code of Practice on Employment (2011) (“the Code”) says at 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.”

[84]The Code goes on to provide at Paragraph 6.24, that “there is no onus on the disabled worker to suggest what adjustments should be made (although it is good practice for employers to ask); At paragraph 6.37, that Access to Work does not diminish or reduce any of the employer’s responsibilities under the 2010 Act. At paragraph 6.28 the factors which might be taken into account when deciding if a step is a reasonable one to take: Whether taking any particular steps would be effective in preventing the substantial disadvantage; The practicability of the step; The financial and other costs of making the adjustment and the extent of any disruption caused; The extent of the employer's financial or other resources; The availability to the employer of financial or other assistance to help make an adjustment (such as advice through Access to Work); and the type and size of the employer.

[85]In Lamb v The Business Academy Bexley EAT 0226/15 the EAT commented that the term “PCP” is to be construed broadly “having regard to the statute’s purpose of eliminating discrimination against those who suffer disadvantage from a disability”.

[86]It is also generally unhelpful to distinguish between “provisions”, “criteria” and “practices”: Harrod v Chief Constable of West Midlands Police

[2017] ICR 869

[87]There is no formal requirement that the PCP actually be applied to the disabled Claimant. The EAT said in Roberts v North West Ambulance Service [2012] 16 of 160 ICR D14 that a PCP (in this case, hot desking) applied to others might still put the Claimant at a substantial disadvantage.

[88]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.

[89]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.”

[90]The test of reasonableness 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.

[91]It is not necessary to prove that the potential adjustment will remove the disadvantage; if there is a “real prospect” that it will, the adjustment may be reasonable. In Romec v Rudham

[2007] All ER (D) 206

(Jul), EAT: HHJ Peter Clark said that it was unnecessary to be able to give a definitive answer to the question of the extent to which the adjustment would remove the disadvantage. If there was a 'real prospect' of removing the disadvantage it 'may be reasonable'. In Cumbria Probation Board v Collingwood

[2008] All ER (D) 04

(Sep), EAT: HHJ McMullen said that 'it is not a requirement in a reasonable adjustment case that the claimant prove that the suggestion made will remove the substantial disadvantage'. In Leeds Teaching Hospital NHS Trust v Foster

UKEAT/0552/10

, [2011] EqLR 1075, the EAT said that, when considering whether an adjustment is reasonable, it is sufficient for a tribunal to find that there would be 'a prospect' of the adjustment removing the disadvantage.

[92]Schedule 8 EqA (Work: Reasonable Adjustments) - Part 3 limitations on the duty provides: S. 20. Lack of knowledge of disability, etc (1) A is not subject to a duty to make reasonable adjustments if A does not know, and could not reasonably be expected to know— (a) in the case of an applicant or potential applicant, that an interested disabled person is or may be an applicant for the work in question; (b) in any case referred to in Part 2 of this Schedule, that an interested disabled person has a disability and is likely to be placed at the disadvantage referred to in the first, second or third requirement. Under Part 2 and an interested disabled person includes in relation to Employment by A, an employee of A’s.

[93]If relied upon, the burden is on the Respondent to prove it did not have the necessary knowledge. The Respondent must show that it did not have actual 17 of 160 knowledge of both the disability and the substantial disadvantage and also that it could not be reasonably have been expected to know of both the disability and the substantial disadvantage. Harassment (disability)

[94]Section 40 of the EqA renders harassment of an employee unlawful.

[95]Section 26 EqA 2010 provides: (1) A person (A) harasses another (B) if- A engages in unwanted conduct related to a relevant protected characteristic, and the conduct has the purpose or effect of - violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B. (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— the perception of B; the other circumstances of the case; whether it is reasonable for the conduct to have that effect.

[96]The Tribunal is therefore required to reach conclusions on whether the conduct complained of was unwanted and, if so, whether it had the necessary purpose or effect and, if it did, whether it was related to disability.

[97]If the Claimant proves any of the conduct they complain about, it was unwanted. There is no need to say anything further about that.

[98]It is clear that the requirement for the conduct to be “related to” disability needs a broader enquiry than whether conduct is “because of disability” like direct discrimination Bakkali v Greater Manchester Buses (South) Limited

UKEAT/0176/17

[99]What is needed is a link between the treatment and the protected characteristic, though comparisons with how others were or would have been treated may still be instructive. In assessing whether it was related to disability, the form of the conduct in question is more important than why the Respondent engaged in it or even how either party perceived it.

[100]The question of whether the Respondent had either of the prohibited purposes – to violate the Claimant’s dignity or create the requisite environment – requires consideration of each alleged perpetrator’s mental processes, and thus the drawing of inferences from the evidence before the Tribunal GMB v Henderson

[2016] EWCA Civ 1049

[101]As to whether the conduct had the requisite effect, there are clearly subjective considerations – the Claimant’s perception of the impact on her (they must actually have felt or perceived the alleged impact) – but also objective considerations including whether it was reasonable for it to have the effect on this particular Claimant, the purpose of the remark, and all the surrounding context. That much is clear from section 26 and was confirmed by the Employment Appeal Tribunal in Richmond Pharmacology Ltd v Dhaliwal

[2009] ICR 724

. The words of section 26(1)(b) must be carefully considered. Conduct which is trivial or transitory is unlikely to be sufficient.

[102]Mr. Justice Underhill, as he then was, said in that case: 18 of 160 “A respondent should not be held liable merely because his conduct has had the effect of producing a proscribed consequence: it should be reasonable that that consequence has occurred. That…creates an objective standard … whether it was reasonable for a claimant to have felt her dignity to be violated is quintessentially a matter for the factual assessment of the tribunal. It will be important for it to have regard to all the relevant circumstances, including the context of the conduct in question. One question that may be material is whether it should reasonably have been apparent whether the conduct was, or was not, intended to cause offence (or, more precisely, to produce the proscribed consequences): the same remark may have a very different weight if it was evidently innocently intended than if it was evidently intended to hurt …” and “…We accept that not every racially slanted adverse comment or conduct may constitute the violation of a person’s dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase…”

[103]Similarly in the case of HM Land registry v Grant

[2011] EWCA Civ 769

, Elias LJ as he became said, when discussing the descriptive language of subparagraph 1: “Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment.”

[104]In the case of Greasley-Adams v Royal Mail

[2023] EAT 86

for harassment to have occurred, the person must have been aware that it had happened in order to perceive that it was harassment. Therefore, if comments are made behind an employee’s back that they become aware of later on, for example because of an investigation into their grievances about other matters, to determine whether harassment has taken place, the correct approach is to look at the Claimant’s perception of the situation at the date time the alleged harassing incident took place. Consequently, if the Claimant was not aware of the harassment at the time, they could not perceive that they had been harassed at the time.

[105]Further, if they then later found out about the harassment event, it could well still amount to harassment at the time they find out about it. However, whether it is reasonable for the Claimant to believe that they have been subject to harassment in accordance with section 26 (4) (c), that question is to be determined in the context of events taking place at the time the Claimant finds out about the harassing event. In the context of Greasley-Adams, this meant that finding out 19 of 160 about a harassment event during an investigation meeting into his grievances and claiming this was violating his dignity, was unreasonable in the context of the employer investigation the Claimant’s concerns in good faith.

[106]It is for the Claimant to establish the necessary facts which go to satisfying the first stage of the burden of proof. If they do, then it is plain that the Respondent can have harassed them even if it was not its purpose to do so, though if something was done innocently that may be relevant to the question of reasonableness under section 26(4)(c).

[107]Violating and intimidating are strong words, which will usually require evidence of serious and marked effects. An environment can be created by a one-off comment, but the effects must be lasting. Who makes the comments, and whether others hear, can be relevant, as can whether an employee complained, though it must be recognised that is not always easy to do so. Where there are several instances of alleged harassment, the Tribunal can take a cumulative approach in determining whether the statutory test is met Driskel v Peninsula Business Services Ltd.

[2000] IRLR 151

[108]In addition, if what the issue alleged by Claimant as amounting to a breach of the EqA would not be unlawful under the EqA, then it cannot be a protected act for example see Waters v Metropolitan Police Comr

[1997] IRLR 589

[109]The employee must be subjected to a detriment, which has been decided to mean placed at a disadvantage Williams v Trustees of Swansea University Pension and Assurance Scheme and anor

[2019] ICR 230

. Unfavourable or less favourable treatment arguments are not in accordance with the correct statutory wording of section 27. Detriment is established if treatment is of a kind that a reasonable worker would or might take the view that in all the circumstances it was to their detriment: Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

HL. Therefore, for detriment to be proven, it is for the Claimant to show that they were or would have been, in their subjective view, placed at a disadvantage and that it was objectively reasonable for them to have held that view.

[110]Detrimental treatment of a Claimant will not be because of a protected act if the detrimental treatment is caused by the way in which the protected act is done or the behaviour of the Claimant whilst communicating the protected act or gathering information for it. For example see Woods v Pasab Limited

[2012] EWCA Civ 1578

and Martin v Devonshire Solicitors

[2011] ICR 352

[111]The detriment relied upon by the Claimant, must be linked to the protected act. The same test for causation in direct discrimination, is therefore relevant to victimisation because the statutory wording is the same. Unfair dismissal

[112]Section 98(1) Employment Rights Act 1996 (“the ERA”) provides: (1) “In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –(a) The reason (or, if more than one, the principal reason) for the dismissal, and 20 of 160 (b) That it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.”

[113]Section 98(2) ERA provides: (2) “A reason falls within this subsection if it –(a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, …”

[114]Section 98(3) ERA provides: (3) “In subsection (2)(a) –(a) “capability”, in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality, and

(b) “qualifications”, in relation to an employee, means any degree, diploma or other academic, technical or professional qualification relevant to the position which he held.”

[115]Section 98(4) ERA provides: Where the employer has fulfilled the requirement of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case."

[116]It is for the Respondent to show the reason for the dismissal and that that reason is a potentially fair reason. The reason for dismissal is the facts and beliefs known to and held by the Respondent at the time of its dismissal of the Claimant - Abernethy v Mott Hay and Anderson

[1974] IRLR 213

. Capability is the reason relied upon in this case and this is a potentially fair reason.

[117]The employer is required to follow a fair procedure. In East Lindsey District Council v Daubney

[1977] ICR 566

, the EAT stated: “"Unless there are wholly exceptional circumstances, before an employee is dismissed on the ground of ill-health it is necessary that he should be consulted and the matter discussed with him, and that in one way or another steps be taken by the employer to discover the true medical position. We do not propose to lay down detailed principles to be applied in such cases, for what will be necessary in one case may not be appropriate in another. But if in every case employers take such steps as are sensible according to the circumstances to consult the employee and to discuss the matter with him, and to inform themselves upon the true medical position, it will be found in practice that all that is necessary has been done.”

[118]It is clear from the case of DB Schenker Rail (UK) Ltd v Doolan

UKEATS/0053/09/BI

that the test in British Home Stores Ltd v Burchell

[1980] ICR 303

, applies as much to capability dismissals as it does to conduct dismissals. Therefore the Employment Tribunal is required to address three 21 of 160 questions:118.1 Whether the employer genuinely believed its stated reason;

118.2 Whether it was a reason reached after a reasonable investigation; and

118.3 Whether they had reasonable grounds on which to conclude as they did.

[119]The Respondent is not required to prove that the Claimant was incapable of performing their job, rather the Respondent needs only establish an honest belief on reasonable grounds that the Claimant was incapable - Taylor v Alidair Ltd

[1978] IRLR 82

[120]The question of whether the employee is capable of doing the work that he is employed to do must be determined in accordance with the employee’s contractual obligations and role at the time of dismissal - Plessey Military Communications Ltd v Brough EAT 518/84.

[121]It is necessary for the employer to have consulted with the employee prior to dismissal and also some attempt to establish the genuine medical position - East Lindsey District Council v Daubney

[1977] ICR 566

[122]The range of reasonable responses test as set out in Iceland Frozen Foods Limited v Jones

[1982] IRLR 439

, Post Office v Foley

[2000] IRLR 827

and J Sainsbury plc v Hitt

[2003] ICR 111

requires us to consider whether the decision of the Respondent to dismiss the Claimant fell within the band of reasonable responses of a reasonable employer acting reasonably. This applies equally to the procedure that was followed as well as the decision to dismiss.

[123]Guidance on these considerations can be found in OCS v Taylor

[2006] ICR 1602

, where the Court of Appeal confirmed that Employment Tribunals should: “…consider the fairness of the whole of the disciplinary process. If they find that an early stage of the process was defective and unfair in some way, they will want to examine any subsequent proceeding with particular care. But their purpose in so doing will not be to determine whether it amounted to a rehearing or a review but to determine whether, due to the fairness or unfairness of the procedures adopted, the thoroughness or lack of it of the process and the open-mindedness (or not) of the decision-maker, the overall process was fair, notwithstanding any deficiencies at the early stage.” And “consider the procedural issues together with the reason for the dismissal, as they have found it to be. The two impact upon each other and the ET's task is to decide whether, in all the circumstances of the case, the employer acted reasonably in treating the reason they have found as a sufficient reason to dismiss.”

[124]Tribunals must avoid the substitution mindset and not decide the matter on what 22 of 160 the Tribunal would have done in these circumstances. Rather it must apply the standard of what a reasonable employer would have done. There may be a range of responses that a reasonable employer could have reached. Ultimately, the Tribunal must consider whether dismissal fell within the range of reasonable responses open to a reasonable employer.

[125]Whereas there is no requirement for an employer to create a new role where none exists - Merseyside and North Wales Electricity Board v Taylor

[1975] ICR 185

, it is appropriate to consider whether the employee could be offered an alternative position more suitable to the employee’s state of health - Spencer v Paragon Wallpapers Ltd

[1977] ICR 301

[126]In McAdie v Royal Bank of Scotland

[2007] EWCA Civ 806

, the Court of Appeal stated that an employer could fairly dismiss an employee for ill-health capability despite the fact that the employee's stress-related illness was attributed to the conduct of the employer. The key issue is whether the employer acted reasonably in all the circumstances, which include the fact that the employer was responsible for the ill- health. FINDINGS OF FACT, ANALYSIS AND CONCLUSIONS

[127]Having considered all the evidence, we find the following facts on a balance of probabilities. The headings used below are not intended to summarise our findings, they are used to signal a new topic or point in the chronology.

[128]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.

[129]The parties will note that we have in large part structured our decision around the factual issues and sequence of events. We were also careful to look at the evidence ‘in the round’ to determine whether it suggested that the Claimant had been subjected to the unlawful treatment of which she complains (this is particularly important when it comes to allegations of direct discrimination and harassment). Having done so we did not find cause to change our decisions on any issue or issues. R1’s sickness absence policy [115]

[130]R1’s sickness absence policy records: Entitlement to Sick Pay [155] RBKC’s Council’s Sick Pay Scheme Occupational Sick Pay (OSP); which is sick pay that RBKC is not obliged to pay, but chooses to, in order to enhance the statutory sick pay (SSP) which the Government pays. Entitlement for each new period of sickness will depend on what has been paid over the previous 12 months. 23 of 160 When calculating entitlement to RBKC’s sick pay, previous continuous service with a local government will count towards service. […] After 5 years 6 months' full pay and 6 months' half pay Discretion Extension of Occupational Sick Pay Extension of sick pay may be considered in exceptional circumstances. Each case will be considered on its merits. Decisions are made jointly between the Departmental Director and the Director of HR&OD. […] Exceptional Circumstances [122] In certain, exceptional circumstances, the manager may feel it is inappropriate to commence the formal process or move to the next stage even though the level of absence has passed the trigger points (e.g. in cases of terminal illness, death of a partner, accident etc). An example may be where an employee, who has recently returned from a long period of sickness absence, suffers a short illness, unconnected to the longer absence. In these circumstances, the manager may wish to delay implementing the formal process. The line manager must complete the ‘Management of Absence – Exceptional Circumstances’ form and seek approval from their own line manager regarding this decision. Facilitating a Return to Work There will be occasions when employees can return to or remain at work if they have a phased return to work. The type of support required (EG reduced working time gradually reverting to a normal attendance pattern, more regular breaks, set attendance times etc.,) is likely to be confirmed by a GP or OH. Phased returns should be planned and agreed over a four-week period, during which time an employee will receive full pay. It could also be the case that an employee is newly classified as disabled and to enable a return to work, a workplace adaption or risk assessment needs to be undertaken and steps put in place to facilitate a smooth return to work. STAGES [123] There are three formal stages to the management of absence process, prior to the appeals process 1st stage formal 24 of 160 2nd stage formal 3rd stage Dismissal Hearing Long Term Absence The Council classes long term sick absence as a continuing absence of twenty-eight calendar days or more. The Council is committed to dealing fairly and sympathetically with employees who are absent from work for long periods because of ill health. The Council aims to assist employees on long-term sick leave with their rehabilitation and eventual return to work. The Council understands that an employee may have a health condition or injury that means that they are not fit for work, and that the employee's recovery may be a slow process. However, the Council must also pay due regard to its operational needs. The absence of an employee on long-term sickness absence can damage efficiency and productivity and place an additional burden on the employee's colleagues. The Council will consider dismissing an employee on long-term sick leave only after it has made all reasonable and practicable attempts to support their return to work, including any reasonable adjustments if the employee has a disability. RBKC are committed to the Dying to Work Charter; https://www.dyingtowork.co.uk/ and that means that it will not dismiss any person with a terminal diagnosis because of their condition.

[131]The long term absence section of the policy provides for trigger points and a staged approach. At each stage the employee can be accompanied by a work colleague or a TU representative. Meetings under the trigger points can also be held in a neutral location or at the employee’s home if agreed by both parties [128 – 131]:131.1 a first stage formal meeting should be arranged after one continuous period of fourteen calendar days;

131.2 a second stage formal meeting should be arranged after twenty eight continuous calendar days from the start of absence, or sooner if the fit note runs for more than one month. Managers are guided to make a referral to occupational health and remind employees of the EAP service. The policy provides that a second stage warning will be issued advising that if the employee does not return to work within one month a third stage dismissal hearing will be convened to consider the employee's continued

131.3 Having been issued with a second stage warning: 25 of 160131.3.1 if the employee returns to work within one month or less then the second stage warning will remain in place with a review period of six months. If any further absences occur during that period a sickness hearing will be reconvened.

131.3.2 If the employee continues to remain away from work on sickness absence one month after second stage meeting, then a third stage dismissal hearing will be arranged to consider the employee’s continued

[132]If dismissed employees have a right of appeal. The policy also goes on to provide as follows in respect of ill health retirement [131]: Where it appears that an employee who is a member of the Local Government Pension Scheme (LGPS) may be suffering from ill-health that would qualify for early retirement on the grounds of permanent incapacity, the relevant provisions of the pension scheme will apply. An application can be made to enable an Independent Registered Medical Practitioner (who in the case of new applications will not usually have seen them before) to provide the Council with a certified opinion on whether they fall within the LGPS criteria for ill-health retirement, to assist the Council in making its decision regarding their application. R1’s disability guidance [562-575]

[133]R1’s disability guidance provides: Supporting your team [568] When a member of your team tells you to you that they have a disability you must hold a Support Plan Interview, during which you will complete the Notification of Disability and Reasonable Adjustments Form with the member of staff. This plan should be reviewed every 6 months or if and when an individual’s circumstances change. The plan will be held by the line manager. If the member of staff changes department or line manager this plan can be shared with the new manager with the individual’s permission. This ensures that the same level of support is received in the new role. Returning to work [570]• If a person is looking to return to work after a long absence, make it clear you are open to have a discussion with them about making adjustments to help ease them back into work. These could include, for example:

• A phased return to work initially working certain days a week or having shorter days for a period of time (and adjusted duties during that time) to 26 of 160 facilitate easier travelling.

• Re-designing a person’s job role

• A move to a different role. Manager Considerations [579] Consider ways you can be flexible about how a job is done. By discussing with the employee how a job can be done differently, you can often find ways it can be done better. Usually, the individual will have the best ideas on what changes can make the biggest difference to how well they can do their job. Many adjustments are straightforward, don’t cost anything and can be implemented easily. Disability Policy and Reasonable Adjustments Guidance [548-588]

[134]R1’s disability policy on reasonable adjustments provides: What is a reasonable adjustment? A reasonable adjustment is a change that an employer makes to remove or reduce the barriers that a disabled employee might face whilst doing their job. In the case of a candidate, reasonable adjustments are made ensure the recruitment process is inclusive and barrier-free to anyone who wishes to apply. Adjustments are made on a case-by-case basis and must be designed to remove or reduce the difficulty the employee or candidate is facing. Examples could include a specific piece of IT equipment (such as speech-to-text or screen reader software), amending working practices, hours, or location, delivering coaching or mentoring, providing communication support for Deaf employees or providing a flexible working arrangement. Adjustments need to be effective in helping the person as well as being sustainable for the organisation. Whether a proposed adjustment is reasonable is determined by the Council. What does reasonable mean? The following factors will be considered when deciding whether a proposed adjustment would be reasonable: Effectiveness – how well does the adjustment in question remove or at least minimize the disadvantage? Practicability – how practical is the adjustment? For example, how long will it take to implement, will anyone need extra training, etc? Cost – for example, how much will it cost, what financial resources 27 of 160 available to the Company (including schemes such as Access to Work, for example), can the Council afford it? Disruption – how disruptive to the Council, to others, and to our business needs would it be to make this adjustment Risk – would making this adjustment cause any risk to others? (Note: An adjustment will not be ‘reasonable’ if anyone’s health and safety would be compromised by making that adjustment.) Roles and Responsibilities: Line Managers Line Managers need to ensure all employees have everything they need to do their job to the best of their ability. Line managers should be proactive in spotting the signs of when an adjustment might be needed and having supportive conversations with employees. Line managers should not focus on the medical nature of the employee’s disability or long-term condition but should focus on how to remove the barriers that the disabled employee might be facing. The duty to make adjustments rests with the employer so line managers must have proactive conversations with all of their staff to ensure everyone has everything they need to do their job. Flexible Working [104-105] 5.2 – 5.4 and 5.9

[135]R1’s Flexible Working policy provides as follows: The right to request flexible working5.1 If you have at least six months’ service with the Council you may make a request for flexible working. There is no automatic right to have your request granted, but the Council has to show that it has considered your request fairly and replied to you properly. By “working flexibly” the law means:

• changing the number of hours you work

• changing the times you work

• working from home

5.2 Any change which is introduced will normally be made formal, and be on a permanent basis. It may be though that before committing to a permanent change, staff and managers will want to trial a change informally for a period of three months, with a review and final decision after that.

5.3 The Council has a written procedure for considering requests to work flexibly. This procedure, which also gives examples of flexible ways of working, is available on the intranet or from the Human Resources department. 28 of 160

5.4 If you are thinking of requesting a change to more flexible working, it is a good idea to talk with your manager as a first step, before you make a formal request. This may help you to stop and to think through all the possibilities. In particular, please note that if a flexible work arrangement would mean you working fewer days in the office, then your department may wish to trial “hot-desking” or workstation sharing if it does not do so already. R1’s ill health retirement provision

[136]The Claimant was a member of the Local Government Pension Scheme (“LGPS”) and a benefit of that scheme is ill health retirement provision. The LGPS has gateway criteria which need to be satisfied before a potential beneficiary can be eligible to access the various tiers of the scheme [625]: Qualifying for ill health beneﬁts You must have met the two year vesting period in the LGPS to qualify for ill health beneﬁts. Your employer must be satisﬁed that: - you are permanently unable to do your job until your Normal Pension Age, and - you are not immediately capable of undertaking gainful Your employer must get the opinion of an independent occupational health physician appointed by them before it makes its decision. Your Normal Pension Age in the LGPS is linked to your State Pension age. You can Check your State Pension age on the Government’s website. Gainful employment means paid employment for at least 30 hours a week for a period of at least a year. Ill health beneﬁts can be paid to you at any age. Your beneﬁts will not be reduced because they are being paid early. In some cases, your pension will be increased to make up for your early retirement. The level of beneﬁts depends on how likely you are to be capable of gainful employment after you leave.

[137]It was agreed by the parties that if an employee gets through this gate, then any entitlement to ill health retirement benefits falls to be determined by reference to the employee’s prognosis under three tiers (which we do not need to recite here). Relevant background to the Claimant’s employment and life experience

[138]The Claimant emigrated from New Zealand in 2005 to the UK having been a police officer for more than 12 years [CWS3]. 29 of 160

[139]She gave verbal evidence, which we accept, that prior to emigrating she had been personally involved in the Aramoana mass shooting that occurred on 13 November 1990 in New Zealand. She described herself as a survivor of that incident.

[140]As we have said above, the Claimant started employment on 6 August 2007 with R1. She was initially employed as an Environmental Crime Enforcement Officer. She then moved into the role of Market Inspector/Enforcement Officer and unfortunately was the victim of a physical assault whilst doing that job in 2011. This necessitated a number of months of sick leave. We were provided with documents in respect of this period of sick leave which indicated as follows:140.1 the claimant complained neck pain and stress in a fit notes dated 6 September 2011 [191] and 6 October 2011 [196];

140.2 R1’s OH team reported on 27 September 2011 [192]: Ms Moore developed pain in her neck some time ago. She underwent appropriate investigations. Presently, she is awaiting an assessment by a Specialist. I trust you are fully aware that Ms Moore was assaulted at work a short while ago. This assault did not only aggravate her neck complaints but also caused her very significant psychological ill-health. To illustrate the seriousness of the situation, I would just like to mention that Ms Moore must normally be very robust, given her experience of twelve years as a policewoman in New Zealand. Therefore, for her to suffer psychologically after the recent assault means that she is in need of quite specialised help. I would hasten to add that I have seen similar cases before and that the vast majority of them were able to return to work - and into sometimes highly stressful duties - after specialist treatment. Treatment does not always need to last very long and quite often the individual can return to work before it is completed. I can confirm that Ms Moore has always been happy to follow medical advice hence, any delay in her return to work will be very much due to the availability of the required treatment under the NHS. In my limited experience, we may be looking at perhaps up to two months’ sickness absence before Ms Moore can consider a return to work. I would very much welcome that we meet for a case conference as we would not only need to discuss the immediate consequences of this assault at work but also need a strategy for the time when Ms Moore can start a part-time and adjusted return to work. 1 . What is the nature of the condition and the likely prognosis? Ms Moore suffers from two medical problems, one affecting her neck and one affecting her psychology. The outlook for those problems should be good but we will need the input from Specialists. […] 30 of 160 3. Is the condition likely to come within the scope of the Equality Act 2010? In my opinion both of Ms Moore’s conditions are likely to come under protection of the Equality Act 2010. […] 8. Would you say the absence is work related? If you consider this to be the case please advise what the relationship is. Based on Ms Moore’s report today I would agree that her absence is very much work related. If her description of the assault is correct, then both the aggravation of her neck, as well as her present psychological are a direct consequence of her duties. 9. Long-term outlook and future ability to work: It is presently a bit too early to speculate whether Ms Moore might have a condition, i.e. a problem that might last in the longer term and which might impact on her future ability to work. In my limited experience, a recovery to a point where she can return in to the full remit of her normal duties, is possible. […] Additional question: I note you are aware of Ms Moore’s concern of returning into the duties of an Enforcement Officer. This is not surprising, given her present state of health, especially the severity of her psychological symptoms. Ms Moore’s outlook on her job is likely to change with her recovery. I am happy to discuss this in more depth when we meet at the case conference.

140.3 Occupational health advised on 16 January 2012 [198]: […] I found Ms Moore seriously ill and she is presently entirely unfit for a return to work. However, her outlook remains good. I anticipate her full recovery. In my limited experience, it is unlikely that a return to work will need Ms Moore’s full recovery, i.e. I think it is likely that she will be able to return to work during her treatment and not only at the end of it.

140.4 Statements of fitness for work dated 18 April 2012 [216] and 24 May 2012 [223] described her condition as “post traumatic stress disorder - PTSD”.

140.5 An OH letter of 28 March 2012 [217] records: “Ms Moore updated us in stuttering voice on her recently started treatment, and told us that she is already experiencing some improvement of her condition. However, the fact that she was stuttering and her report of serious memory problems underscored, in my opinion, the seriousness of ill-health she is still dealing with. Presently she is building up her stamina in order to be able to attend court on 15th May 2012.”. We note here that stuttering/stammering and shaking are symptoms which she experienced during the hearing and during the period relevant to her claim. 31 of 160

140.6 An OH letter of 25 April 2012 [219] records: I am pleased to report that Ms Moore’s health is stabilising. In my opinion she has made tremendous progress but this is not to say that she could go back to work soon. In fact, whilst hard work is now paying off in terms of improved psychological health, she is still prone to setbacks if external events put her under distress. Having said this, I am confident that Ms Moore will be able to overcome this fragility.

140.7 An OH letter of 23 May 2012 [221] records that the Claimant’s neck was not a major problem (there being some damage due to wear and tear) and mentions a significant reduction of the risk in the future exercise of her duties. It the cause the claimant suffered a blackout whilst attending a court case related to the attack on her and that there are still situations capable of bringing about symptoms that would beyond claimants ability to control. Occupational health was very optimistic that such instances are likely to be preventable in the future and she was not concerned by them. She expected a full recovery would be possible

140.8 By July 2012 the Claimant was back at work on adjusted duties and OH reported [228], “Ms Moore remains vulnerable if people behave in an aggressive or challenging manner. However, this is likely to improve over the coming weeks. I remain optimistic about her going back onto the beat. […] Should Ms Moore experience a challenging or threatening situation then it would presently help her enormously if she could be allowed to take "10 min off" in order to withdraw to a quiet environment where she can work on any distress that may have arisen. This is likely to be a temporary measure only”.

140.9 An OH letter of 15 August 2012 [238] records “You request advice on whether or not Ms Moore is fit enough to participate in assignments that can be confrontational, e.g. during the Notting Hill Carnival. […] Based on the aforementioned report and my previous knowledge of the case I am happy for Ms Moore to deal with situations that may trigger higher levels of stress, e.g. situation that may arise during the Carnival.”

[141]Through her absence in 2011 and 2012 (“the First Period”) the Claimant found that her manager, Mr N Kasic, was very supportive. It seems that, understandably and rightly, R1 did not formally manage the Claimant sickness absence over this period and paid for private psychiatric treatment given that the Claimant’s ill health had been caused by an attack while she was doing her duties and the prognosis was positive. Understandably there was also some adjustment to her entitlement to sick pay in the circumstances [237] CWS16.

[142]It appears that the Claimant’s expectations of R1 in respect of the period directly relevant to this claim (being 2022 – 2023 or “the Second Period”) may have been raised by the approach in the First Period. However, we consider it not to be fair for the Claimant to have judged R1’s approach in the Second Period by reference to its approach in the First Period because the First Period was caused by an industrial injury whereas the Claimant’s absence in the Second Period was not caused by R1 (for reasons we will explain) and the circumstances were very different. 32 of 160

[143]The Claimant became a Corporate Fraud Investigator in 2018 investigating suspected tenancy and housing fraud [CWS4]. Between 30 and 31 October 2019, by which time the Claimant was under the management of Mr Gill-Collis, the Claimant was on sick leave with a migraine [260]. Mr Gill-Collis referred the Claimant to OH and a report dated 9 December 2019 was prepared which said, amongst other things [261-263]: I saw Ms Moore in the occupational health service on 9th December 2019, at which time I was able to refer to your management referral form. She spoke to me about her medical history and her current health and her recent absences from work. We also discussed significant stresses at work and outside of work. Ms Moore told me that her recent absences have been due to headaches that tend to be stress-related. She has previously had more frequent headaches but told me that her headache in October was the first severe headache she has had for the past year. […] Are there any underlying medical conditions affecting this individual’s performance or attendance at work? I found no evidence of an underlying medical condition affecting performance or attendance at work. […] What is the likely time-scale for recovery ? She does not have medical condition from which to recover. Is the recent migraine attack something that has been caused by the incident in 2012 and also if there would be other symptoms that we are unaware of but need to take into account ? Although she dates her headaches back to an industrial injury, I have no reason to believe that her recent absence was caused by the incident in 2011 (or 2012). There are no other symptoms of which I believe you should be aware.

[144]In that report the references to ‘troublesome period’ were clearly to the Claimant’s gynaecological problems. The Claimant at that time told Mr Gill-Collis that the migraines had been a stress reaction to the 2012 attack [DGCWS8] but we do not accept that assertion and it is not borne out by the OH report.

[145]The Claimant also asserted that her PTSD/anxiety from the 2011 attack had been registered as a permanent disability on R1’s systems and that future managers should have been aware that she had had an underlying disability since 2011 for which adjustments would need to be made. We do not agree that any such record was created. Indeed, although an early medical report concluded that she might be covered by the definition of disability under the Equality Act 2010, and although for a time between 2011 and 2012 the Claimant was clearly suffering from substantial impacts on her ability to do day to day 33 of 160 activities, it is clear that she made a full recovery and the substantial impacts were not long term or recorded as likely to recur (they did not last 12 months and could not reasonably have been expected to last more than 12 months or recur given the prognosis of R1’s OH team). R1 and Mr Gill-Collis and other manager could not reasonably have known in January 2022 that the Claimant had a disability because at that time she did not. We conclude, based on the medical evidence provided to us, that the Claimant’s PTSD following the attack in 2011 was not an ongoing, underlying condition as she alleged or that it was likely to recur. This is particularly so given events that followed which also did not trigger any PTSD:145.1 She was stabbed with a ballpoint pen by a client who did not want to pay for a Fixed Penalty Notice (CWS17 INCIDENT 2);

145.2 She was assaulted (punched in the face) by a woman who had a court order directing her not to be on Portobello Road Market but did not need any time off work (CWS18 INCIDENT 3);

145.3 She discovered a house fire on Portobello Road Market and physically removed two people from the building CWS19 and remained in work without PTSD (CWS19 INCIDENT 4);

145.4 After the Grenfell fire tragedy she was in the direct line of residents’ and non-residents’ anger and upset and:145.4.1 called ‘murder squad’ by upset members of the public;

145.4.2 subjected to verbal threats and abuse; and

145.4.3 at times greeted with aggressive behaviour from non-locals; but

145.4.4 nonetheless remained at work despite the stress and upset caused. (CWS20 INCIDENT 5);

145.5 The Claimant gave evidence in cross examination that after the Christchurch New Zealand terrorist shootings on 15 March 2019 she had had to have a couple of weeks off work because of the stress she had experience related to worry about family members there and being on the phone to a family member while the shootings were taking place. She linked this to her experiences in respect of the Aramoana tragedy. OH guidance of 29 April 2019 recorded that she was signed off with stress due to personal issues [253] and in response to the question “Are there any underlying medical conditions affecting this individual’s performance or attendance at work?” replied “At present, there is no evidence of any underlying medical condition affecting her performance or attendance at work.” [254].

145.6 Later that year the Claimant was signed off with gynaecological problems. COVID and IVF treatment

[146]Of course the COVID pandemic hit in March 2020 and the UK experienced a number of lockdowns. The Claimant had IVF treatment around the late 34 of 160 Autumn/early winter of that year during the height of the pandemic.

[147]As we have recorded, happily the Claimant became pregnant with twins. Very sadly she lost one of the twins during the pregnancy. She gave birth to her other baby, who was born at around 7.5 months into the Claimant’s pregnancy, in June 2021 and she started maternity leave. Impact of COVID on the work of R1’s fraud team

[148]The Claimant’s role as a Tenancy and Housing Fraud Investigator is described in a job description as follows [132-133]: 1. To work as part of the Corporate Anti-Fraud Service whose key objective is to combat fraud and corruption perpetrated against the Royal Borough of Kensington and Chelsea. 2. To investigate suspected tenancy or housing fraudulent activity and to be responsible for securing evidence obtained in support of an investigation in accordance with criminal and civil law, legal requirements and criminal investigation procedures. 3. The post holder will be required to adopt mobile working across the partner authorities, with extended work across Westminster City Council (but with the Royal Borough of Kensington and Chelsea as the host authority) and be able to work outside of normal office hours and on occasions at weekends. […] To investigate allegations of frauds or the misuse of public funds using the following techniques:• Analyses and evaluate evidence/data obtained, verifying the accuracy of information during an investigation.

• Make enquiries with witnesses, enforcement agencies, employers and third parties as required.

• Interview (including recorded interviews under caution) and take statements from the those suspected of committing fraud or those who have witnessed suspected fraud adhering to the codes of practise contained within the Police and Criminal Evidence Act 1984 (PACE) and according to guidelines laid down in any relevant legislation.

• Interview witnesses and third parties as required or directed in accordance with the requirements of legislation, and to obtaining witness statements and supporting evidence.

• Undertake unannounced visits in order to establish the occupants of a property or to interview witnesses. These visits will normally be outside of normal office hours.

• Undertake static or mobile surveillance where appropriate and ensuring 35 of 160 compliance with RIPA at all times. […] Maintain a fraud investigation caseload of housing and tenancy fraud investigations with responsibility for opening and maintaining Investigation files for assigned cases. […]

[149]We accept Mr Hyatt’s and Mr Gill-Collis’ evidence under cross examination and in their witness statements that:149.1 The team in which the Claimant worked usually constitutes between four and six housing fraud investigators.

149.2 Individual investigators are responsible for a case load of around 35 investigations (this would be the maximum).

149.3 Investigations involve desk-based enquiries together with visits to tenants and undertaking interviews at the council offices under caution. We accept that this is a significant part of the role and that for safety and intelligence gathering reasons all in person visits and interviews with third parties must be undertaken in pairs (by the lead investigator accompanied by a colleague investigator).

149.4 The pandemic lockdowns created a huge backlog of cases for two main reasons. Firstly, during lockdowns and similarly restricted periods, in person visits and interviews could not be conducted and the team focused on desked-based analysis. Secondly, the lockdowns (during which people were staying at home and, for example, standing on their doorsteps clapping the NHS), created more opportunities for people to see who their neighbours were and that led to an increase in the reporting of suspected fraud to the team.

149.5 Once COVID restrictions eased there was an urgent need for investigators such as the Claimant to address the backlog that had developed and that for that to be accomplished there was an urgent need for investigators to do those things which they had not been able to do during the COVID restrictions –

(i) namely progress their own case loads through in person visits and interviews

(ii) and support colleagues to do their site visits and interviews.

149.6 evidence gathering cannot be done nearly as effectively on a remote basis. September 2021 – passport signing

[150]At the end of September 2021 the Claimant asked Mr Gill-Collis to help her with her son’s application for a New Zealand Passport [272-276]. They exchanged some friendly and informal WhatsApp messages at that time. Mr Gill-Collis agreed to fill out the witness details of the form and the Claimant suggested that she come into the office. On 3 October 2022 the Claimant saw that the weather was due to be good the next day and suggested that she come in to Kensington 36 of 160 Town Hall (KTH) on 4 October 2022. She commented (our emphasis) “I will come to KTH late morning. I will try not to come in trying to keep [her son] with limited contact until December” [276]. Mr Gill-Collis replied “Totally agree….[son’s name]’s health is paramount! Will be good to see you.” The Claimant replied, “be weird but in a good way”.

[151]The Claimant’s evidence in her witness statement was that [CWS34] she specifically arranged to meet at KTH because she did not want to go into the work environment to expose her son to viruses but when Mr Gill-Collis came down to fill out the form she was horrified to see 80% of her team there to see her son but she could not say no to them coming and seeing him. The Claimant said she masked her terror and put on a brave face but was “highly anxious and fearful she had exposed him and possibly killed him” and left KTH sobbing throughout the hour long walk home.

[152]We consider that Mr Gill-Collis and the Claimant had a friendly and relaxed relationship as reflected in their WhatsApp exchanges. We accept that Mr GillCollis considered himself to be the Claimant’s friend. We find that the Claimant did make reference to her concern about limiting her son’s exposure to viruses but did not expressly tell him to keep her (relatively small) team away. We do not consider that other team members attended maliciously or that Mr Gill-Collis was negligent in allowing them to attend – it is understandable that he did not fully appreciate what the Claimant wanted or give it more careful thought. The Claimant could have asked people to keep their distance but we accept it was a difficult situation for her. However, the Claimant is forthright and demonstrated her ability to stand up for herself and she did not complain to Mr Gill-Collis afterwards. We consider that the Claimant has exaggerated the distress she says she suffered and there is no other evidence that she was so distressed (for example messages to family or friends). 2 November 2021 request to return early from maternity leave [277]

[153]The Claimant notified R1 that she wanted to return from maternity leave before she had exhausted her maternity leave entitlement. On 2 November 2021 R1 wrote to the Claimant with details in respect of her return to work. She was to end her maternity leave on 13 December 2021 but use accrued holiday from that date and not return to work until 11 January 2022. R1’s letter made reference to R1’s childcare voucher scheme. December 2021

[154]The Claimant and Mr Gill-Collis had a friendly exchange of messages on WhatsApp on 15 December 2021 in which the Claimant told Mr Gill-Collis that she would not attend the team’s Christmas event (which we were told was at a winter wonderland) because she did not want to get the virus and bring it home to her son (who she often affectionately referred to as ‘ratbag’) [279].

[155]Over the Christmas period the Claimant split with her partner who appears to have had alcohol abuse problems. She mentioned this to Mr Gill-Collis in a call on 7 January 2021 [286]. We mention it because it is relevant that the Claimant had sole responsibility for the care of her son. 37 of 160 Early January 2022

[156]The Claimant was due to return to work on 11 January 2022. On 5-6 January 2022 she exchanged the following messages with Mr Gill-Collis [280]. For brevity when quoting WhatsApp and email exchanges in this Judgment we refer to the Claimant as “C” and others by their initials and mean no disrespect in adopting that approach: 5 January 2022 Could you give me a call tomorrow it’s just I'm really anxious about things. DGC to C sure no worries 6 January 2022 I've booked appointment with gp tomorrow because of my anxiety. I’m anxious about Covid and if I bring home to bub. Then anxious I’m going to let you guys down. I was wondering when we start going back into the office if I could do a day in the office every other week due to my anxiety < and childcare problems with Covid. Doesn't help me waiting for my medical procedure on feb 2. I just want to be honest. My dr appointment at 9:30 tomorrow could I call you afterwards? Glyn. DGC to C Sure speak tomorrow then Glyn. At the moment it's only work but who knows how it will change over the next few weeks. Otherwise I'm not sure how working arrangements will be once this period is over, but I'll have a chat with the boss. Call me whenever is good for you tomorrow. Thank you much appreciated DGC to C NP. Hope all goes well tomorrow.

[157]On 7 January 2022 the Claimant spoke to her GP and she then sought to refer herself to R1’s OH team by an email of the same date [283] in which she said: Subject: Return to work after maternity leave. […] 38 of 160 I am a rbkc employee as a corporate fraud investigator. This involves home visits. I have just spoken to my Gp today regarding my overwhelming sense of anxiety. This is because I return to work on the 11 January 2022. She advised me to contact you to discuss my options like return to work. I have anxiety about my son and keeping him safe from Covid and RSV. He was born premature and I don’t want to see him in a ventilator again. With Covid I no longer has my support system because my family who were going to look after him are scared to. They have children of school age and scared he will get Covid. The childcare issue is another trigger to my anxiety. I have let my boss David Gill-Collis know. I have asked when we do return to work in the office if I’m able to do two days a month in the office eg every other week work a specified day. I can’t afford daycare two days a week. I didn’t think I’d be doing this on my own but my partners alcoholism is so bad he looks like he’s living on the street. My gp has said possibly a gradual return to work or counselling etc may help. I need to return to work but don’t want to let anyone down. Thank you for your time and look forward to your advise etc.

[158]On the same day, 7 January 2022, Mr Gill-Collis and the Claimant had a call, as arranged, which led to Mr Gill-Collis sending an email to R1’s HR team as follows [285]: Subject: Advice re. childcare Hi Sue, I hope you can help me, as I need some urgent advice please in respect of one of my team members. I just tried to contact Karen (Singh) about this but apparently she no longer works for RBKC (and I have no idea who our replacement business partner is). Glynis Moore, one of my officers, has been off on maternity leave with her first child, and is due to return to work next week on 11 January 22. Shortly after talking to her about her return to work earlier in the week, I received this Whats App message from Glynis:- [as above] 39 of 160 Glynis appeared to be stressing over her imminent return to work, how this was affecting her mental health and how her childcare issues meant she could only return to the office one day per fortnight maximum. Given her obvious concern, I spoke to Glynis this morning to see what her exact position was regarding return to work, and to see what we could do as employers to help her. During our call Glynis confirmed that she has just been speaking to her GP about her anxiety over returning to work. All Glynis mentioned about the conversation was that her Dr agreed that she had reason to be anxious. Glynis went on to explain that she will not be able to return to work when things are back to two days a week in the. office - which Is what we were working prior to this latest outbreak - as her plans for childcare have fallen apart. Originally she was going to have her child looked after by friends and family, but with all the Covld that is prevalent in schools (her potential carers all have their own school-age children), Glynis does not want the risk of him being exposed to the potential danger of infection. Glynis also confirmed that now this childcare support group is no longer an option, she cannot afford to pay for private childcare two days a week, especially as she no longer has her partner who she split up with dyer the Xmas period. She could also not even afford to pay for child care for working one day in the office per fortnight (as per her proposal in the Whats App message above). She discussed the RBKC voucher system With her Union Rep, but this is not a viable option as she still cannot afford cover even Under this scheme. Glynis proposed that when things change, and officers are required to come back to the office, she works no more than 2 days a month in the. office (on alternate Tuesdays). She said she has friends who are prepared to look after her child on an "irregular” basis if required (although I view 2 days per month as still being a “regular” basis and would hope that this childcare cover can be guaranteed). In view of the above can you please let me have Some advice on RBKC’s policy regarding how we need to treat this situation? Although I am obviously concerned with Glynis's situation, I need to balance this with the requirement that she is able to satisfactorily perform the duties that she has been employed for (l.e. whilst working from home this will mean that Glynis will be the full-time carer for her baby, and I do not know how this might impact her ability to perform her duties). 40 of 160 I'm actually off now until 15 th Jan, so could you please copy Andy (Hyatt) into your reply as It may be that we need to speak with Glynis before I get back.

[159]On 11 January 2022 HR responded to this email as follows: Subject: RE: Advice re. childcare […] The council’s current advice is that all employees whose duties can be performed at home should continue to work at home. When this changes in future the manager can explore temporary phased return with the employee while efforts are made to gradually increase her physical attendance at work to meet the council’s expectation. I will advise that Glynis is referred to OH assessment to seek for professional advice. It’s important to make Glynis understand that working from home is not an opportunity for childcare, she should make effort to arrange for permanent childcare arrangement to enable her carry out the duties she has been employed to do. Put differently, there are two issues that need addressing 1) her anxiety about returning to the office -when we are required to do so, please refer her for OH assessment. 2) Her childcare arrangements i.e. she can’t work from home to take her of her child. I hope this helps. Please let me know if you require further clarification – happy to discuss.

[160]On 7 January 2022, following the Claimant’s self referral, R1’s OH team contacted Mr Gill-Collis to ask him to refer the Claimant to them and they attached the relevant form [284]. Mr Gill-Collis asked what he was referring her for [287]. He said he guessed it was anxiety related to her return to work. OH then told him that he should discuss the referral with the Claimant as without her consent they could not release any information. OH told Mr Gill-Collis that they had told the Claimant to contact him. Mr Gill-Collis acted promptly to make the referral that day (1:58pm [288]) saying “Glynis is currently on maternity leave with her first child – she is due to return to work next week (11th Jan). She has recently contacted me about anxiety issues concerning having to return to work and balancing childcare with her employment. She has asked me therefore to refer her to OccHealth for any possible help.” There was no reason for Mr GillCollis to think about disability and the Equality Act and he quite reasonably did not tick the applicable box to ask that question. Return to work and childcare 11 January 2022 – 7 February 2022

[161]As we have said, 11 January 2022 was also the day on which the Claimant started back at work. This was a time when all of R1’s office based staff were working from home. 41 of 160

[162]The Claimant’s evidence on how she was able to work and care for her child over this period was not precise and at times appeared contradictory. On the balance of probabilities, given the Claimant’s oral evidence, we find that she did not have childcare from 11 January 2022 to around 25 January 2022 and was trying to work and look after her baby at the same time. We find that from around 25 January 2022 a friend of hers was looking after her baby from about 7:30am until around 13:30 during which time the Claimant was working. The Claimant then cared for her baby and did some further work after 18:00 once he had gone down for the night. The friend who was helping her in this way did not give evidence and the Claimant did not name her at any point nor did the Claimant disclose any messages (via WhatsApp, text or otherwise) evidencing the childcare that this friend provided. The Claimant said that she was a pregnant friend who in the afternoon/evening worked in a restaurant.

[163]On the balance of probabilities we find that this arrangement must have been very tiring and stressful.

[164]As regards the risk to the Claimant’s baby the Claimant in her witness statement said [CWS35]: “At each appointment I was advised to shield my son until at least he was six months old initially. Then I was told twelve months due to him being born prematurely and had a suppressed immune system. I was told his lungs will continue to be under-developed until he is 7 years old. During this time two friends of mine and their babies had nearly died of COVID and RSV virus.”

[165]We find that the Claimant’s friend, who was working in a restaurant, would on the balance of probabilities have been a high risk child carer from the perspective of the Claimant’s son contracting COVID or other viruses. Some workplaces were socially distanced and required employees to test for COVID before coming in to work. Such precautions are unlikely to have been in place for the Claimant’s friend at a restaurant, even if she was testing herself regularly. It was a well know feature of COVID that may people were infected and infectious and yet asymptomatic.

[166]The Claimant clearly did become anxious and stressed over this time but we do not consider that this was only because of the thought of her son catching COVID (had that been her only and overwhelming concern she would not have curtailed her maternity leave when she did and would not have arranged for a friend who worked in a restaurant to care for her baby). We have also taken into account that in a message to Mr Gill-Collis in October 2021 she had said “I will come to KTH late morning. I will try not to come in trying to keep [her son] with limited contact until December”. This is contemporaneous evidence that suggests that the risk to her son reduced once he had reached around 6 months old and contributed to the Claimant’s decision to curtail her maternity leave. Given the Claimant’s comments on a subsequent OH report which we reference below, we also find that it was a Consultant’s opinion that the period of risk was up to the age of six months and that it was a medical centre that suggested a longer period of 12 months [300].

[167]We find on the balance of probabilities that the Claimant’s anxiety was caused by an accumulation of the pressures that the Claimant was under being: 42 of 160167.1 concern about her son catching COVID and RSV;

167.2 financial pressure (the Claimant was clear that she could not afford even two days per week of childcare and she made frequent reference to the expense of buying bottled, preprepared, baby milk which was also being rationed by the supermarkets);

167.3 trying to care for her baby as a single parent and work (sometimes simultaneously);

167.4 the knowledge that COVID restrictions might end soon and that R1 would then have a legitimate need, given the backlog in investigations, to require her to start coming into the office and doing other in person aspects of her role; and

167.5 the practical difficulties of arranging childcare in circumstances where

(i) she could not afford even two days of childminding services and

(ii) given the age of her son and his vulnerability having been premature, the difficulty of finding a nursery that could take him [CWS52].

[168]Added to these pressures we also remind ourselves that the Claimant had also had to go through IVF, had broken up with her partner over the Christmas period, was looking after her baby on her own, had had a traumatic birth (together with the earlier loss of her son’s twin in pregnancy) and there is a suggestion that she was suffering with post natal depression (albeit this is no longer relied upon by the Claimant as forming part of her disability and the reference to it in 5.6 of the list of issues is clearly an error). It had also been a difficult period because of the pandemic as expressed by the Claimant herself [CWS27].

[169]Under re-examination the Claimant said that her mother was “very well set” because she had sold her house for a large amount of money and bought another place and she had also had inheritance. She said her mother was well placed to help and was still helping financially at the time of the hearing. This was not detailed in the Ms J Moore’s witness statement and we were not taken to any record of R1 having been told this at any point. The Claimant was not precise about when this arrangement started but seemed to suggest it was after she had started sick leave and Ms Nield’s did not recall the Claimant mentioning to her that the Claimant’s mother was supporting her financially.

[170]The Claimant [CWS53 and 75] said that she had found a group of neonatal trained professionals called Sitters. Her evidence was that she “would arrange for them to be there when [she] could not get friends or family to look after him”. This suggest that she used Sitters a number of times but that was not borne out by the documentary evidence supplied which only showed [633-642]:170.1 The Claimant made one booking for 2 February 2022 and had paid a total of £20.95 to the organisation (membership fee of £14.95 and a booking fee of £6 with the Claimant paying the sitter directly and not via Sitters as an organisation). The total cost of this booking was high (£10.50 per hour for 7 hours giving a total of £73.50). 43 of 160

170.2 In July 2022 the Claimant cancelled the subscription that she had to pay Sitters in order to book their services.

[171]As we will come on to explain, the Claimant started a period of sick leave on 7 February 2022 and benefitted from full sick pay from that point until around 6 August 2024. We find on the balance of probabilities that the Claimant did not get any financial support to pay for Sitters over this period.

[172]We find that at no point during the Claimant’s sick leave did the Claimant give R1 any reassurance as to R1’s legitimate concern that the Claimant wanted a working from home arrangement in order to care for her child and work at the same time. She did not explain how she was going to put in place stable childcare arrangements while she was working (whether that be at home or elsewhere). It is clear that she did not have firm childcare and she could not afford childcare. 18 January 2022

[173]There was some suggestion that Ms Nield (the Claimant’s trade union representative) had spoken to Mr Gill-Collis on 18 January 2022 but there is no record of it, Mr Gill-Collis did not remember the call and we find on the balance of probabilities that it did not take place.

[174]What did happen on that day was that the Claimant had her consultation with OH (Ms Hyasynth Wallace (Senior OH Advisor).

[175]After the OH consultation the Claimant reported to Mr Gill-Collis that she had “Finished speaking to occupational health. She will be contacting you with her letter. I was nice she understood why I am anxious.” [295]. 20 January 2022 Lifting of Covid Restrictions

[176]On 20 January 2022 R1 issued a mailshot to staff concerning its lifting of COVID restrictions [600] which included the following: The Government has announced that their policy of ‘work from home if you can’ is now rescinded. […] Staff who have been working from home are therefore expected to return to full hybrid working in Council workplaces from Monday 31 January The advantage of working for at least half of the week in a Kensington and Chelsea workplace is the boost it gives to team working and to overall wellbeing. It also helps us to deliver our commitments to residents and service users. Consideration of varying start and finish time to avoid peak travel, or to account for increased journey times will continue to be at the discretion of your manager. Your health and safety remains our priority, so the following measures will stay in place for the time being and kept under regular review: 44 of 160• mask wearing when moving through common areas

• meeting room guidance

• increased cleaning and ventilation. […] If you have individual health concerns, please tell us. Our HR team have the necessary support and advice to help you. We have a wide-ranging support offer that can be accessed via the Health and Wellbeing Hub. Please visit our Health and Wellbeing hub if you need further support and discuss any concerns with your line manager. […] 28 January 2022

[177]On 28 January 2022 there was then the following correspondence between the Claimant and Mr Gill-Collis [296-297]: C to DGC 10:09 DGC, I haven't heard from OH Nurse. I will email them again to see what is going on. Just to add to my stress levels I can't even get a week's worth of supply of premade milk for Boo. Supermarkets now rationing what you can get. This is ridiculous and with my son having his silver spoon taste won't drink powdered milk. The stress of thinking I won't be able to get milk for him is something 1 never thought I would be going through. Even running back to NZ I can't do as country closed and even when open you have to be on the lottery to get your number to enter the country. I'm sure one day I will kind of laugh about what so real now. G DGC to C 10:13 Rationing???????????????????????? What??????????? BTW I chased OH and they said they can't send me a copy of their report until they have sorted out your amendments, so I cannot see this happening by the end of today. DGC 45 of 160 C to DGC 10:21 Thanks I have just sent them an email chasing them up. Yes rationing of baby milk. My mother said sell up and come back. I had to point out even if I wanted. I can't get in. Happy days. World gone mad. DGC to C 10:22 After Andy's email yesterday, how are you about coming in one day next week? Next week I don't think will be happening be I don’t have childcare plus got hospital and a/l. Hyasynth away this week from OH. She is back on Monday. I am trying to with childcare but the issue he is a young baby. G C – to DGC and AH at 15:16 [298] Dear Andy and DGC, I have tried to chase up where the amended report is and found out today Hyasynth who is writing the letter is away till Monday. I don’t think it reasonable for me to keep you in the dark till sometime next week. I want to be open and honest about my situation so we can work together. I am writing this email in the hope It helps you understand my anxiety and overall circumstances. Is there a specific RBKC HR person I should be liaising with? Ref below:

[178]The Claimant attached to this email her comments on the draft OH Report as follows (the Claimant’s amendments are in bold below) [300-303]: Draft letter from OH Nurse: I conducted a telephone consultation with Glynis on the 18.01 .22, at which time I was able to refer to your management referral form. Glynis works as a full time Investigations Officer [Corporate Fraud Investigator and has worked with the Council for 14 years. She states 46 of 160 that she returned to work from maternity leave last week. She also stated that she was very. anxious about coming back into the office as she is worried about her young baby who was delivered prematurely, by caesarean section, and is one of 2 twins she was expecting, Twin passed away] She states that she has been told by the consultant that the baby should not be exposed to human contact but did not indicate a timeline. [Consultant said 6 months and midwives and Medical Centre state 12 months]. Glynis says she is still not able to mobilise as much as she used to. She says she had a diagnosis of cellulitis 4 months before the birth which was treated and took 7 weeks to heal and a caesarean section. She says that her medical issues are resolved. [Undiagnosed with Cellulitis in third trimester -diagnosed post birth 4 months later - 7 weeks on medication and still recovering - energy levels limited]. She states that she has been asked to come into the workplace at least 3 times a week but says she has no permanent childcare as it is very expensive. [3 days working from home and two days into office]. Her immediate family live abroad so has no close support and states that she will not be able to attend more than 1 day / week. [NZ family not able to travel because of fear of Covid] [UK family not able to help due to fear of infecting baby with Covid]. [Planned childcare both fallen through due to fears of Covid and infecting baby]. [Childcare is also limited due to my baby being so young and classed as vulnerable having been premature he is classed high risk]. She says she has spoken to her manager and regarding her schedule and has advised that She can carry out her visits as required. She has been afforded counselling via her GP and has attended sessions to help her cope with her situation [GP advised to contact OH RBKC to obtain counselling if required. If felt in crisis was given emergency number. I am not having counselling currently as trying resolve stress triggers]. I have also advised that she speaks to HR regarding her situation to look at what options are available to her. as follows;• Are there any underlying medical conditions affecting this Individual's performance or attendance at work? Glynis states that she is anxious about her return to the office and the impact on her premature child. I am anxious due to the unprecedented times with vulnerable children being at risk or the RSV virus and Covid. My baby having 47 of 160 been born premature he is at a higher risk. Him being under the age of 12 months is also a contributing factor. He was born 5.5 weeks early so is physical age Is reduced from date of birth. ‘Complications associated with preterm birth are the number one cause of death in children under five years old worldwide. With premature birth already associated with increased risk of postpartum depression (highlighted in multiple studies), it is important that adequate support is available for families of premature babies’. [Ref: WEBSITE] Covid is still a living reality for myself and my vulnerable seven month old baby. As of today's day UK infection: 16,245474 and deaths: 155,040.

• Is she currently fit to carry out the duties outlined In the job description, if not what can I, the manager, do to support the employee? She states that she is able to carry out her duties. I am able to conduct my duties but am asking for flexibility with coming into the office and conducting un-notified visits etc. I would ideally ask I be able to work from home and come Into the office once a month. This request I don't see as detrimental to the service I would be giving but an advantage and more productive working from home.

• Are there any short-term/permanent adjustments to the work tasks or environment that would help facilitate rehabilitation or an early return to Glynis will need to have a discussion regarding her workplace attendance and to come to an agreement on how many days the business can allow her to work from the office and at home. I have great concerns in utilising public transport due to the spread of covid. I have not used public transport since March 2020 for fear of contracting covid. The fear of an open planned office where we are mixing is also a concern.

• Is the health problem likely to recur or affect future attendance? She has contacted counselling and has had support for her health issues. My GP advised me to contact Occupational Health about receiving support. They said I should be able to receive counselling if that was thought to be useful. The GP also gave me a number to call if I felt I was in crisis. I have not sought counselling as of yet as It is my circumstances due to covid that are causing me my stress.

• Is temporary or permanent redeployment advisable oh medical 48 of 160 I have advised Glynis to discuss options with you to establish whether she would like to be considered for redeploymerit. I don't need to be redeployed due to my having a seven month old baby who is vulnerable to Covid and RSV virus in unprecedented times. With all the deaths and infections being above normal rates from previous years this request is reasonable. We are not In normal times. The risk is real. Becoming a new mother of a premature baby who is physically vulnerable until twelve months +. I'm not sure how that would read translated under the Equalities Act.' Is the employee likely to be permanently Incapable of undertaking the duties of their role and other/ gainful employment (requiring She is unlikely to be deemed incapable of undertaking her duties. I am asking to come into the office physically once a month ideally until my son is over the age of 13 months [07/07/2020] due to him being 5.5 weeks premature. When he is no longer a baby and his immune system is more robust I will be more at ease to return to work as required. Further Information I have sent to OH Nurse io take Into consideration:

• My consultant for my surviving twin stated to limit human contact due to covid etc for at least six months. The midwives and GP Nurse have said to be careful of contact until his immune system is more mature at 12 months.

• My GP has stated to speak to RBKC O/H re counselling. GP given me a number to call if I feel I am In crisis. I have not attended any counselling because it's my circumstances causing me anxiety e.g. young baby and fear of getting covid.

• I also am now bringing up my son bn my own which I didn’t think would be happening. My ex-partner is an alcoholic who has been reported to me by friends pretty much homeless. The role of being sole provider and sole parent with sleepless nights with teething etc is hard but I am trying my best. My normal support in UK aren't able to help because of the fear of Covid.

• I am struggling for childcare due to my family and friends in UK who were going to support me. Not able to because their school aged children always coming down with Covid. They would if my baby was older and less immune suppressant [vulnerable]. My NZ family are not travelling to UK due to fear of Covid and now being in Lockdown.

• I have spoken to childminders who said him. being so young they 49 of 160 were not keen to take him. Due to him being physically vulnerable to Covid. If he was older it wouldn't be a problem.

• I also have anxiety due to my upcoming cervical day surgery due to my test showing abnormal cells.

• I am able to conduct my duties but at a reduced amount [un- notified visits] due to childcare and the fact I don't want to infect my son with RSV virus or Covid. The extra anxiety comes from the thought of him being In hospital on a ventilator like he was when he was born. Or me losing him. Being a premature baby I have to be extra vigilant.

• I know the Covid restrictions have been downgraded even though the amount of people being, admitted into hospital are going up. I've lost faith in government decisions especially knowing they have been breaching rules themselves.

• To add to my stress levels I can't even get a week's worth of supply of premade milk for baby. Supermarkets are now rationing what you can get. The amount I can get lasts us 4.5 days. This is ridiculous and with my son having his silver spoon taste won't drink powdered milk. To order online for home delivery as I don't have a car anymore I have to have an order over £40. 1 can't afford £40 a week shop. Since being on half pay with maternity pay I am now paying of bills I wasn’t able to pay in full. The stress of thinking I wont be able to get milk for him is something 1 never thought I would be going through.

• The stress of thinking about still breastfeeding is only an issue about me going back into the office. How will I facilitate feeding my son? Will I express at work? When my baby son Is feeding with a growth spurt he can be alternating from breast to breast all day. I am able to still conduct my work at home but would not be feasible in the office. Then there is the question where would I be storing the milk? I. can't see my male colleagues being not too happy seeing my breast milk in the communal fridge.

• My country of birth and where my mother resides is New Zealand I can’t even return there if I wanted to as the country is in full lockdown. When it isn't they have a lottery to get your number to enter the country. My mother is not able to fly to UK due to fear of Covid. She suffers anxiety due to having been held up at gunpoint when she was a bank teller.

• The impact of the thought of return to the office once - twice a week has caused me to become extremely vulnerable. My son has seen me crying and because he doesn't Know what is happening becomes stressed and grizzly. I have lost my appetite and unable to sleep because of the anxiety of returning to the office. I am in fear I will be putting my son’s health at risk by either bringing back home 50 of 160 covid, exposed to covid because of childminder or nursery. Summary:

• Ideally until my son is over 13 months old [07/07/2022] when he is no longer immune suppressant I would like to be able to work from home and come in to the office once a month. If that is considered detrimental to the team I would suggest twice a month with one day a week and alternative weeks.

• My health and wellbeing not only affects me and my child but my colleagues. We are a small team and if I was to go down a previous road I had with PTSD off months off work sick. It would be detrimental to my team.

• With my pregnancy during Covid it was a relief to be working from home in lockdown. For my whole pregnancy -I only left my premise to attend medical appointments. I didn’t even go to the comer shop or pharmacy because of the fear or contracting covid. It was made clear if I had contracted it while pregnant I would be hospitalised with the immediate caesarean to prevent death of both of us.

• Health impacts for premature babies and their families is acknowledged to experience extensive mental, emotional and physical stress - both before and after the birth.

• I am trying to be transparent and acknowledging I am currently undertaking adverse times in a worldwide Pandemic. My request is being made in an proactive action to prevent myself going off work. The above circumstances mentioned are all stress triggers and I am attempting to be robust enough to keep working fulltime to support my little family.

• Unfortunately with the Pandemic [exceptional times] we are not in times of business as usual. I hope this clarifies my current predicament.

consideration:

[179]There then followed the following correspondence on 28 January 2022 [304]: DGC to C 15:42 Thanks Glynis, your email is appreciated. As this is something that we, as managers, still need to sort out - and we will not be able to resolve it by the end of today - I can confirm that we will not expect you In the office next week. Please be assured that we will attempt to resolve this issue as soon as possible and be in touch once a decision is made. C to DGC 15:45 51 of 160 Thank you. I appreciate it’s not normaltimes for any of us and you have kept me updated. 1 February 2022 to commencement of Claimant’s sick leave on 7 February 2022

[180]On 1 February 2022 Mr Gill-Collis and sent the Claimant the following email [305]: Subject: Working from home […] As promised during our phone conversation.a few moments ago, I'm emailing you to confirm that I recently sought guidance from HR regarding your return to work. HR have now verified that working from home is not an opportunity for childcare, and that you will need to make arrangements for permanent childcare to enable you to carry out the duties you have been employed to do. In view of this, we can give you four weeks from today's date to sort out this childcare arrangement. During this period you will not need to attend the office (as per recent instructions regarding staff return to hybrid working). As you are aware, I am still waiting for OH to send me their report of your recent meeting. Once this has been received I will contact HR again to see how this might affect the above decision, and seek further guidance on how we may be able to help support you. In the meantime, if you have any queries, please do not hesitate to call me.

[181]The Claimant and Mr Gill-Collis and then sent the following emails on 3 February 2022 [307]: I have just checked my emails and still nothing from Occupational Health. I have tried to make an appointment with my GP today but their phone system keeps hanging up on me. I have emailed therrt Yesterday I got all the all clear but have tests in October to ensure I am fully clear. Phew. I will check my emails later today but this is ridiculous to be waiting so long. C to OH [308] 11:19 52 of 160 To whom it may concern, I am still awaiting my amended OH draft letter. Because of the wait this is causing me more anxiety. HR are awaiting the report to review their decision I have to return to work fully in four weeks as of Monday 31 st January 2022. I have taken today off as annual leave because of my day surgery yesterday and because I want to take time with my son and attempt to destress. I would appreciate an update on where my letter is so I can advise management. C to DGC 13:35 [309] Still nothing from OH. I'd like to take tomorrow off as annual leave please. This whole process is getting too much. I thought I was doing the right thing writing you all my very honest email. I’m trying to keep it together but the stress of being at the mercy of someone else and they not writing up what I said. Or possibly not listening to what I said. Then they are incommunicado. I appreciate you have given me four weeks grace but I'm still anxious. Especially with me being notified today of Mrs [NAME]’s passing. I previously investigated her and her daughter [Catalyst & GT]. Her young son came home from sqhool and brought Covid home. She caught Covid from him and passed away today.

[182]On 4 February 2022 OH replied as follows [313]: I have not replied to the email below as you have already made management aware of the contents of the report and there can be no advisory changes. I would have liked to have discussed the contents with you beforehand to agree on a way forward. I am not sure what I can add or remove from the report other than to tidy it up. If you would like me to do this let me know.

[183]On 7 February 2022 the following emails were exchanged [314]: C to DGC and Nield 07:15 DGC, 53 of 160 This is the reply from OH. I’m struggling to see the point of them. I discussed everything that is in my email with the OH Nurse and she didn’t put my full circumstances in. I was attempting to be fair to management about my situation. Because I want to remain employed and work full time. I’m wondering if my union rep has a chat with you we might be able to come to a mutually convenient conclusion. She has stated under flexible working due to being family friendly employer my request isn’t considered unreasonable until 7th July 2022.

[184]In this regard we comment that whilst the Claimant was saying she was anxious, there was not a medical basis for OH to recommend that the Claimant work from home. It was apparent that the Claimant wanted to both work from home and also care for her child at the same time. The correspondence continued: C to OH 7:46 with DGC on cc [312] […] As you were on annual leave and my situation had become even, more pressing. Due to everyone returning to working in the office as of 31/01/2022. I had not had any contact with you I was forced to write the email due to that pressure. I have since found out you were on a week annual leave. When contacted by management asking me to come back in for a day in the office. I began to shake and sob uncontrollably. It was a reasonable request but not a normal response to that question. The email I sent out was out of desperation due to HR and Management needing something in writing to make a decision on. Ultimately they gave me a months working from home until they receive the letter from RBKC Occupational Health. I am anxious enough about putting my vulnerable son at risk of Covid and with pressure from HR and Management require I wrote the email to save myself from additional triggers of anxiety. The letter you wrote as you can see from my amendments didn't cover everything we had discussed. How it read it was more of a letter for Management and not for (my very real levels of anxiety and stress triggers, I previously suffered PTSD after being attacked while undertaking my work for RBKC. I have to take a duty of care for my own 54 of 160 wellbeing. I am trying to be proactive and transparent to prevent myself getting very unwell. I have spoken to my GP and she stated all she can do is sign me off work and review every two weeks. I'd like to point out the mention of childcare being expensive is another a trigger. It isn't the sole reason for my asking to work from home [flexible working / family friendly] until, my son is 13 months old [07/07/2022]. Covid is the sole reason I am in these circumstances. It is the reason for all my anxiety and problems, That Is why I wrote the. email, I wrote. The other anxiety / stress triggers I mentioned to you and in the email are all very real to me. I’d like to add on Thursday I .was notified a woman who I had previously investigated had passed away of Covid after contracting it from her son. He brought the virus home from going into school. As Management and HR have asked for the letter from Occupational Health I will require a letter from you or your team. […]

[185]The Claimant had asked to only come into the office once a month until 7 July 2022 in her comments on the OH report on 28 January 2022 [298]. This was her flexible working request but there was no good reason, based on the Claimant’s health, for occupational health to recommend that adjustment or for First Respondent to agree to it. The First Respondent had a legitimate concern about the Claimant trying to work and care for her child at the same time. We find that part of the reason for the Claimant’s anxiety was her lack of willingness to expose her son to covid this needs to be seen in context:185.1 The Claimant had been getting her son cared for by someone who could not have been low risk – a friend who worked in a restaurant;

185.2 The Claimant she had chosen to come back to work when she did?

185.3 Her return to work was when her son was more than six months old (the consultant advice having been that the first 6 months of his life was the key period in which to shield her son).

185.4 The Claimant had not put in place, as was her responsibility, the necessary and stable childcare arrangements that were needed in order for her to be able to return to work; and

185.5 She could not afford the expense of engaging Sitters for childcare;

[186]We find that it was these circumstances and not the First Respondent’s actions that led to the Claimant becoming unwell. 55 of 160

[187]Mr Gill-Collis and Mr Hyatt then exchanged the following correspondence on 7 February 2022: DGC to Hyatt 10:21 [310] Morning Andy, Just got this from Glynis about her OH report - it would appear that OH are not going to amend their original report to the extent that Glynis has requested (copy of original attached). We still haven't received the original response from OH - believe this is because they have had to look at the amendments that Glynis requested. However, as you can see (below) from the copy that Glynis recently provided, OH have stated “She is unlikely to be deemed incapable of undertaking her duties'. The report does not appear to me to address Glynis’s reported '‘anxieties” other than by mentioning:* Are there any underlying medical conditions affecting this Individual's performance tor attendance at work? Glynis states that she Is anxious about her return to the office and the impact on her premature child. As you can see from the OH response to Giynis, there does not appear to be anything else they can add/amend regarding the original report. I'm also forwarding to you a second email I received from Glynis today regarding working from hom : [DGC included the email reproduced above from the Claimant sent to DGC and Nield at 07:15 [314]] […] I’ve told Glynis that I do not need to speak with her union representative at this point as if I need to contact anyone about it it will be you and HR. I had a look at our Family friendly framework and this is all I could really find about an employees right to flexible working. [Quote of 5.1 – 5.4 of the flexible working policy] Thanks DGC Hyatt to DGC 10:52 [310] I cant see there is anything we need to do? We have given her 4 week to sort things out, and the Hybrid arrangement (2 days in the office) is flexible working. 56 of 160

[188]We accept the conclusions reached by Mr Gill-Collis and Mr Hyatt in their email correspondence and find that this is why they did not contact HR at this point. They fairly concluded that they had offered flexibility (four weeks for the Claimant to sort out her childcare arrangements) and that, as per HR’s previous advice, working from home was not a substitute for adequate childcare. At no point did the Claimant tell them that they need not worry because she had arranged proper childcare arrangements for the times she was expected to be working (including when she was working from home). Mr Gill-Collis then wrote to the Claimant as follows (also on 7 February 2022): DGC to C 11:56 [316] RE: Working from home […] Thank you for your email earlier today confirming the position with the OH report. It would appear that OH are unable to change this report in any substantial way. Unfortunately, in this instance I must therefore reiterate our position (see email .1 February 2022 below) in which I confirmed that, having discussed this matter with both Andy (Hyatt) and HR: “….working from home is not an opportunity for childcare, and that you will need to make arrangements for permanent childcare to enable you to carry out the duties you have been employed to do. In view of this, we can give you four weeks from today’s date to sort out this childcare arrangement. During this period you will not need to attend the office (as per recent instructions regarding staff return to hybrid working)." Please call me if you wish to discuss this further.

[189]The Claimant did not take up the offer of a call but we were provided with the following messages sent between her and her mother: C to mother [332] My works said no and I've broken down I'm going off sick. I've contacted housing team to see how to put house up for sale. I'm done. Apparently flats not easy to sell just my bloody luck Mother to C on WhatsApp to [318] 13:19 – 13 Have left a message with whoever for them to ring me or contact you but I said that you struggling to talk C to Mother 13:29 57 of 160 She never answers Mother to C on WhatsApp to [318] Can I ring your boss then? Do they know you’ve suffered ptsd? C sends Hyatt contact details on WhatsApp to mother [318] C to Mother 13:34 Sorry I'm finding hard to focus Mother to C on WhatsApp to [319] I've emailed him C to Mother 13:38 I’m sorry. I can speak to boo normally but anyone else I’m unable to speak properly Mother to C That's ok we'll hopefully get this sorted C to mother They have made me ill. I’m now not able to work. They have caused this.

[190]We pause here to comment that this is an example of how the Claimant came to think about what had happened and the causes of her ill health. She came to blame R1 for her ill health and what had happened. However, we consider that it is not fair of her to have done so. She certainly had genuine concerns about her son contracting Covid and those concerns were understandable. However, there was also an inconsistency in her thinking about the extent of the risk that Covid posed to him (exemplified, for example, by the fact that she said she was getting childcare support from a friend who worked in a restaurant). However, it was entirely reasonable for R1 to expect that the Claimant would have proper childcare arrangements in place such that she was not simultaneously trying to work and care for her baby. We also note that this period was not like the first lockdown when nurseries and schools were closed.

[191]It is clear from the Claimant’s own correspondence that she could not afford fulltime childcare and that other arrangements for which she did not need to pay were simply not reliable or stable enough to allow her to come back to full-time working. Had she had stable full-time childcare that would have allowed her to dedicate herself to her work during working hours (either working from home or carrying out her duties in person), then she could have quite easily clarified that 58 of 160 with R1 and explained the arrangements. She did not do so and the contemporaneous evidence is not there to support her contention that she did in fact have suitable childcare arrangements.

[192]It was therefore entirely reasonable for R1 to emphasise the need for her to have childcare in place and not approve her request that she work two days from the office a month. The Claimant could reasonably have been expected to anticipate that she would need such childcare arrangements (whether working from home or in the office) and that it was likely that she would be required to return to working at R1’s premises and do the other in person aspects of her role following her return to work and the lifting of Covid restrictions. She did not plan her finances for that eventuality when she made the decision to return to work and curtail her maternity leave. That was not the fault of R1 or Mr Gill Collis.

[193]The Claimant’s messages with her mother continued: Mother to C I know that answer was what tipped you Have you contacted your gp C to mother I was asking four full months. Only four months. Being premature his immune system is suppressed and his lungs won't be fully right till age of seven. I had to have injections for his lungs before they operated. They think that all magically disappeared Mother to C Ignorance C to mother Boo is fine Mother to C Little ratbag C to mother [332] 20:12 Copied you into email 21:17 They want me out otherwise they would go ok. Funny how previous colleague with bad back was able to come in one - two days a month

[194]We note her that this reference to a colleague is to Anne Lord, one of the 59 of 160 Claimant’s comparators. We do not accept that Anne Lord was a valid comparator because there was no suggestion that she needed to work and also simultaneously look after a child. R1 reasonably concluded that the Claimant did want to do both of those things simultaneously. The Claimant, in her evidence to the Tribunal, was not clear that she was going to be able to get full childcare cover whilst working from home. It was clear that all she ever had under her informal and unstable arrangement with a friend was for childcare for part of the working day. Whilst it was a feature of the COVID lockdowns that working parents had to juggle their work with children at home, that was out of necessity because of government imposed lockdowns. The circumstances of the Claimant and her colleagues by the time in question were different and it was reasonable for R1 to expect its employees, if working from home when schools and nurseries were open, to have childcare arrangements in place.

[195]Mr Gill-Collis and Mr Hyatt then exchanged messages as follows on 7 February 2022: DGC to Hyatt 14:42 [324-325] Glynis’s contact details as requested: […]• At 07.15 Glyn sent me an email about her OH report

• Glyn signed on at 07:46 on Teams

• Also at 07.46 she c.c.'d me in to an email she sent to OH

• At 08:46 and 09.24 Glyn messaged me on Teams (re. who her union rep is)

• At 10.26 Glyn messaged me again on Teams - she mentioned her tablet kept freezing and she was in contact with ISD

• Glynis was due to attend an online Unconscious Bias training session from 09.30 to 12.30

• At 11.34 I called Glynis on Teams regarding our decision on returning to work, but the call went straight to voicemail

• At 11.53 I messaged Glynis on teams to tell her that I tried to contact, that I'd emailed her about our decision , and that she could call me when she was available (it does not appear that this message has been read yet)

• At 11.56 I emailed my updated decision to Glynis and copied you in As yet Glynis has not signed either as “out" or uback” from-lunch. Also, looking at Liberty I cannot see that she has logged on to the phones all day. Please let me know if you manage to get hold of her or if you need.me to do anything else. DGC to Hyatt 15:45 [324] Just to keep you up to speed, Julia contacted me 5 minutes ago. She managed to contact Glynis, but Glynis told her that “..:she’s not well and not able to talk properly at the moment". 60 of 160 Fortunately it sounds that Glynis is ok, although obviously upset, but I'm still hot sure if she’s logged in and working or if she’s decided to take the afternoon sick without contacting us. I have also contacted Sue Pearce as requested. Sue confirmed that today’s Unconscious Bias training was provided by an outside provider, but she will try and get confirmation from them of Glynis’s attendance.

[196]Later that afternoon Mr Gill-Collis updated Mr Hyatt to say that there had been no sign of the Claimant on Teams or Liberty and she had not called to say she was sick.

[197]Mr Gill-Collis and the Claimant then exchanged the following emails: 8 February 2022 C to DGC [329] I won't be at work. Gp appointment tomorrow. DGC to C 8:38 Thanks Glynis. As your GP appointment Is tomorrow, are you taking annual leave today or are you taking sick leave? Regards. C to DGC and Nield and Hyatt [334] will be taking yesterday as sick. The dr put as of today's date. I have not opened Andy's email yet sorry but would rather wait like the dr advised when I'm able to. Hyatt to C 11:52 [330] I have attached a letter outlining the current position regarding your return to hybrid working. David Gill-Collis has explained your situation, and I do empathise. We will do pur best to try and assist where practical and explore appropriate options. However, it is essential to note that working from home is not designed to supplement child care. All Council employees who work from home are expected to make separate child care arrangements. 61 of 160 I will try to assist, and I will even speak to HR to discuss whether there is an option to return you to maternity leave and complete your full entitlement, giving you additional time to arrange child care. This is something you might want to consider. Finally, I have been contacted by Jackie Nield, the Branch Secretary for GMB Union, to meet to discuss your situation. To that effect, can you please confirm that you are happy for David and me to meet with her and discuss your circumstances? Kind regards Andy

[198]Mr Gill-Collis’ email attached the following letter: Return to hybrid working arrangements I arh writing to you to confirm our arrangements to assist you with a return to hybrid working arrangements. We agreed you could return to work early from your maternity leave at your request. Since your return, government guidance has changed, enabling the Council to return to the office and hybrid working arrangements. Returning to a hybrid model is the expectation of all Council staff. You have since contacted your line manager David Gill-Collis and explained that you could not return to the CAFS hybrid working model two days per week in the office because of childcare problems. To assist you further, David has delayed your return to hybrid working by four weeks to give you reasonable timeframes to organise childcare. As a result, you will be expected to undertake the hybrid working model at the end of the four weeks (1st March 2022), two days per week in the office. I must also remind you that working from home is not an opportunity for childcare and that you will need to organise appropriate childcare, even on days when you are working remotely. Because you returned from maternity leave early, I could speak to HR to discuss whether there is an option of returning you to maternity leave and allowing you to complete your full entitlement.

[199]On 7 February 2022 Ms Nield asked Mr Hyatt for a conversation about the Claimant’s situation [322]. Mr Hyatt then sent Ms Nield the following message [321]: Hyatt to Nield 3:13 62 of 160 […] As Glynis line manager, David Gill-Collis has been leading on this, but I would be happy to accompany David to discuss the issue with you. We will agree on calendars and send you a selection of possible date/tlmes. However, before the meeting,, can I explain that Glynis has not formally requested Flexible Working to my knowledge? As per all RBKC employees, we asked Glynis to return to our Hybrid model; which is currently working in the office a minimum of two days per week. Unfortunately Glynis cited child care problems as to why she could not fulfil this request. We had already granted Glynis a request to return early from maternity leave. Still, to assist her further, we have: allowed Glynis four weeks to sort out her child care arrangements (working from home throughout the four weeks) and then return to the hybrid model. We also reminded Glynis that working from home is not an opportunity for childcare. She will need to make arrangements for permanent childcare to carry out the duties she has been employed to do.

[200]Ms Nield replied [321]: Nield to DGC 14:57 Andy, thank you for replying so quickly, I understand from talking to Glynis that she is asking for a couple more months of working from home to allow herself and her child to put things in place for him to attend childcare and her to return to her duties as before. I don't believe there is any issue with her work and as such Task you and David reconsider her request to work from home. I await your dates/times to go through my reasoning and look forward to meeting you both. I can do a meeting in person at the town hall or on teams, whichever suits you both. Kind regards. Jackie Nield. GMB Union LOI 6.2.1 Reasonable Adjustments and LOI 8.1.1 Indirect Disability Discrimination:

[201]The Claimant complained that R1 requiring employees to return some days at the office gave rise to a failure to make reasonable adjustments and indirect disability discrimination. She complained that she was not permitted to work predominantly from home and suffered a mental breakdown and had to be signed off sick which subsequently led to her being dismissed. Reasonable Adjustments [6.2.1]

[202]As regards the Claimant’s reasonable adjustments claim [6.2.1] we find that no duty to make reasonable adjustments was triggered at this time because R1 did not know, and could not reasonably have been expected to know that the Claimant was disabled. 63 of 160

[203]The Claimant told R1 that she was feeling anxious (as we have described) but R1 did not know at this stage that it was having a substantial effect on her ability to carry out day-to-day activities or that it was a long term condition. The Claimant was not in fact disabled in 2011/2012 and the PTSD/anxiety that she suffered in that 10 or 11 month period had resolved and was not long term and there was no evidence that it was likely to recur. In any event, based on the Claimant’s case and the indication of Ms Nield, at that time it was to be expected that the Claimant’s anxiety would have resolved by July 2022 (by which point the risk she perceived to her child from COVID and RSV would have reduced because he would have reached the age of one). The Claimant’s annotations to the OH report of 18 January 2022 do not reveal any matters of significant concern. As R1 submitted, the Claimant stated she was fit to carry out her duties and most anxiety is transient and the fit notes did not suggest otherwise. We accept R1’s position that it was only as time wore on and the Claimant’s condition appeared to worsen that the Claimant became disabled within the meaning of Section 6 of the Act.

[204]Further, we find that in any event, the adjustment contended for by the Claimant was not one that R1 could reasonably have been expected to make, particularly in light of the fact that the Claimant had provided no reassurance that she was not seeking to simultaneously work and care for her child. R1 made an adjustment that was reasonable in giving the Claimant four weeks to sort out her childcare arrangements and not requiring her to come into the office at all during that time. Indirect Disability Discrimination [8.1.1]

[205]We find that R1 did apply the alleged PCP and applied it to the Claimant. However, as we have explained, at this point in time the Claimant did not have a disability and the PCP did not therefore put the Claimant at a particular disadvantage. The need to work from home arose out of the Claimant’s lack of childcare rather than her health. Arising from disability complaints – the something

[206]We address here the Claimant’s assertions that certain things (the alleged “Somethings”) arose in consequence of her disability [LOI 5.2] taking account of the fact that (as we will explain) we do not consider that the Claimant had a disability until 9 December 2022. It was only then that the substantial adverse effects of the Claimant’s impairments met the long term test in that it was only with Dr Sherry OH report [427-429] that it was likely that the substantial adverse effects would be long term. Our finding on the Somethings are as follows:206.1 LOI 5.2.1: We accept R1’s submission that the Claimant’s severe anxiety in exposing her son to Covid 19 was not something that arose in consequence of the Claimant’s conditions. The Claimant’s anxiety about exposing her son to COVID was a normal, rational anxiety felt by many and did not arise in consequence of any disability.

206.2 LOI 5.2.2 We find that the Claimant’s stutter and general communication limitations did arise in consequence of the Claimant’s condition. 64 of 160

206.3 LOI 5.2.3 As regards the Claimant’s alleged limitations in respect of participation in the formal attendance management process we find that the Claimant’s:

206.4 LOI

5.2.3.1 –panic attacks did arise in consequence of the Claimant’s condition;

206.5 LOI

5.2.3.2 –severe anxiety of course arose in consequence of the Claimant’s condition ;

206.6 LOI

5.2.3.3 –alleged inability to open correspondence or reply to correspondence sent, did arise in consequence of the Claimant’s condition.

206.7 LOI 5.1.4. We find that the Claimant’s sickness absence arose in consequence of the Claimant’s condition;

206.8 LOI 5.2.5 We find that the Claimant’s request for reasonable adjustments / flexible working requests did not arise in consequence of the Claimant’s condition. This arose because of the Claimant’s financial and other difficulties with arranging stable and suitable childcare. 7 February 2022 LOI

5.1.1 and

5.1.2 (arising from disability discrimination) and

7.1.1 and

7.1.2 (disability harassment)

[207]The Claimant complained that Mr Gill-Collis’ refusal to allow the Claimant to work from home on 7 February 2022 and Mr Hyatt’s similar refusal on 8 February 2022 amounted to unfavourable treatment because of one of the Somethings.

[208]The Claimant did not have a disability at this point in time and so these refusals were not because of something arising in consequence of disability. In any event Mr Gill-Collis and Mr Hyatt did not refuse the Claimant’s request to work from home because of any of the Somethings. They refused the requests because they fairly concluded that the Claimant did not have proper childcare arrangements in place and would therefore be working from home and looking after her baby simultaneously.

[209]The Claimant further complained that she was subjected to disability harassment when on 7 February 2022 Mr Gill-Collis responded to the Claimant to reiterate the point about working from home not being an opportunity for childcare [7.1.1] and on the 8 February 2022 Mr Hyatt emailed the Claimant telling her ‘that working from home is not designated to supplement childcare’ [7.1.2]. Neither of these complaints is well founded because the Claimant did not have a disability at this point in time. In any event neither comment had the purpose of violating or offensive environment for her, it did not have that effect and even if it did have that effect it was not reasonable for the comments to have that effect. The comments complained of were not linked to the Claimant’s medical conditions and R1 was entirely fair in making the comments given what the Claimant had said about her circumstances and R1’s legitimate concerns that the Claimant wanted to work at the same time as caring for her baby. 65 of 160 Commencement of sick leave

[210]On 8 February 2022 the Claimant reported absent from work due to anxiety. On 9 February 2022 she submitted a GP Fit note saying that she was unfit for work irrespective of adjustments for one month to 9 March 2022 [333]. On 4 April 2022 [335] the Claimant submitted a further fit note signing her off to 2 May 2022 with anxiety. The Claimant was paid full pay for this period. 4 April 2022 Email from C to R – update on health 337

[211]On 4 April 2022 the Claimant provided R1 with the following update on her health by email [337]: Sorry for the group email but I’m struggling to write this email. I am currently off work due to anxiety that was triggered by the declining of my request for flexible working till my son was a year old. Due to his compromised immune system and Covid. History: I initially spoke to occupational health nurse Hyacynth who drafted a report. I read the draft that had many inaccuracies and replied to her email. To find out days later she was on holiday. I took what I thought a proactive approach by writing to my management my concerns and included the inaccuracies of the draft report and copied her into email. The response to my request with my concerns was declined by management after gaining guidance from HR. Because of this request being declined it was the final trigger to cause debilitating anxiety and panic attacks. I had told OH I was vulnerable and needed support. My gp told me to speak to OH team. The main symptom is being unable to leave my home without panic attacks and the loss of speech. I stutter and stammer. I had a call from Hyacynth just after I was signed off work. I was upset and struggling to speak and she continued with the call. She stated I must engage with RBKC and herself. I became upset and started crying and she continued to say what she had to say. She stated maybe they could have done more for me. Currently: As of today I have not received any letter, email or further contact from the OH team. Or contact my mother. Hyacinth stated she would do. If you think OH team are supporting me they are not. I have a number of NHS professionals teams around me trying to support me and my young son who was born premature. 66 of 160 As I still don’t have control over my speech or anxiety I have been signed off another month. One of my anxiety triggers is work and I struggle with anything involving work. I am trying to overcome this. I have emails from my manager I can’t open due to my anxiety and physiological response. I apologise for not opening the email. I thought best to let you all know of my situation due to me coming into my third month being off work.

[212]On 5 April 2022 Mr Gill-Collis sent the Claimant’s latest fit note on to Mr Hyatt [606] and commented that he would seek advice from HR (Ms Tolhurst). 14 April 2022 - R1 commences the formal sickness absence procedure

[213]On 14 April 2022 Mr Gill-Collis initiated the formal sickness absence procedure writing to the Claimant to say [340-342]: Re: Stage 1- Sickness Absence Meeting Thank you for your email dated 4 April 2022, the contents of which have been noted. Whilst I do appreciate that it is difficult for you at the moment when it comes to dealing with work related matters, I need to advise you that you are required to attend a Stage 1 formal meeting, in line with the stage 1 process of RBKC’s management of absence policy, a copy of which I have attached. The meeting is as a result of your continuing absence of twenty-eight calendar days or more. Please find your absence details below. Start date of absence: 7 February 2022 Number of working days off: 48.56 Reason for absence: Anxiety The meeting will be with myself, alongside Farah Muhammad from HR* who will support me procedurally. The meeting will take place at [time] on [date] at [location]/ over the (face to face, telephone/via Teams (delete where appropriate). I'd be grateful if you could let me know in advance your preference so that I am able to make any necessary arrangements. You are entitled to be accompanied by either a work colleague or trade union official at the meeting. I endeavour to have an update on your current medical status and discuss with you how RBKC can support your return to work. 67 of 160 On a separate note, I cannot seem to find any"ecord of you having made a formal request for flexible working that has been declined as the formal the process has not been initiated. I have therefore provided the link to the forms and policy available on the council's intranet and have attached the relevant form for your consideration. […] Due to the changes in government guidance regarding covid restrictions, the council's position on employees working arrangements is that there is a requirement to return to the office or a hybrid working arrangement as directed by the service. I acknowledge that this is causing you stress and anxiety so suggest that a stress / return to the office risk assessment is undertaken with you, to identity what anxieties' we can mitigate and support we can offer. If you have any queries regarding the content of this email please do not hesitate to contact me.

[214]We consider that it was Ms Tolhurst that told Mr Gill-Collis to initiate the formal process in light of the Claimant’s email and because the normal timescales for taking this step had lapsed.

[215]Fifty two minutes later at 16:52 the Claimant replied as follows [342]: If I have got the wrong end of the stick I apologise. But due to my anxiety I find it hard to read and concentrate. I can’t speak and struggle to leave the house. I will request the NHS mental health Employment Team who deal with employers to contact you. A meeting at RBKC or virtual meeting are going to be challenging. Remember I have reached out you, management, hr and OH. Ten days of silence. The email request for temporarily working from home and come into the office once or twice a month was after we had spoken about the possibility of flexible working. We did have the conversation and you said to email my request and you would see if possible by checking with HR. I am struggling since you declined my request for this temporary arrangement until my son was less vulnerable at the physical age of 12 months. Due to problems with childcare re Covid and his compromised immune system (premature baby). Work predominantly from home and come in one day every alternative week to the office. No formal request was made as you said it would be declined after consulting with HR and referred to the draft OH report. 68 of 160 I bared my soul to ask for understanding and some compassion and support being a family friendly employer. As work is a major trigger to my anxiety I won’t be able to go through my work emails. I am currently struggling to write this email. I’m uncontrollably shaking and tearful. I am speaking to my Wandsworth MH team on Tuesday. I say speak but really it’s lots of crying, stuttering and stammering. I will get in touch with Jackie Nield to support me as she’s has been since I’ve been signed off work. She also was consulted before I made my request by email to you about flexible working.

[216]The Claimant complains that by taking this action R1 subjected her to direct disability discrimination [LOI 4.3.1], discrimination arising from disability [LOI 5.1.3] disability harassment [7.1.3] and Indirect Disability Discrimination [LOI 8.1.4.2]. These complaints are not well founded because at this time the Claimant did not have a disability. It was not likely at this time that the Claimant’s impairment was going to last for at least 12 months. However, we would make the following further comments in respect of these complaints:

[217]Indirect Disability Discrimination 8.1.4.2 – R1 had the PCP of applying its formal sickness absence procedure and applied it to the Claimant in the same way as it would have applied it to those who did not have the Claimant’s ill health. It would have put employees with anxiety at a particular disadvantage compared to those who did not have anxiety because a formal process would be more stressful for such people (including the Claimant). We find that the Claimant did genuinely find it stressful to have the formal process initiated. However, we find that initiating the sickness absence procedure was a proportionate means of achieving the legitimate aims of managing public finances and staff resources and ensuring sufficient staff were available to meet the needs of the services. We accept Ms Tolhurst’s evidence [RTWS4] that the sickness management procedure had been agreed with R1’s two recognised Trade Unions (GMB and Unison) and that the aim of the sickness management process is two-fold:217.1 It is designed as an opportunity for beneficial engagement with the employee and line manager to create an opportunity to discuss any medical information, find out directly from the employee how they are doing, their feelings on prognosis and getting back to work and whether there is anything R1 can do to support their return to work.

217.2 R1 is ultimately responsible for the provision of public services and managing public money for the benefit of people in the borough. Like all local authorities, following many funding cuts over the years, R1 is expected to do more for less. R1 has very generous sick pay provisions (up to 6 months full pay and 6 months half pay). It is necessary to consider the operational impact of long- term sickness. Sickness absence has a 69 of 160 substantial knock on effect on the welfare of remaining staff and the provision of services, especially in small teams. The process is not intended to be punitive, but R1 has to be transparent as it cannot sustain sickness absence indefinitely.

[218]We find that the initiation of the sickness absence procedure was justified in the circumstances. It was also an opportunity for the Claimant to have a discussion about her situation with R1 and we consider that the Claimant should have taken that opportunity.

[219]Harassment 7.1.3 – whilst conduct that the Claimant did not want, we do not consider that starting the formal sickness management process amounted to disability harassment. Even if it could be said to relate to the Claimant’s disability it was not with the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her and even if it did have that effect it was not reasonable for it to have had that effect. A meeting with R1 was an opportunity for discussion and for the Claimant to put her point of view across.

[220]Direct Discrimination 4.3.1 – As we have explained, R1 did not know and could not reasonably have been expected to know that the Claimant had a disability at this time. Nonetheless, even if we are wrong, R1 did not treated the Claimant less favourably than someone who was not disabled and also on sick leave. R1 would have acted in the same way towards a hypothetical comparator who was not disabled. In fact R1 had delayed in starting the process with the Claimant.

[221]Arising from disability 5.1.3 – If we are wrong on the question of disability we find that initiating the formal sickness absence process did arise because of the Claimant’s sickness absence [LOI 5.2.4] however it did not amount to unfavourable treatment because it was also an opportunity for the Claimant to discuss her circumstances with R1 and, if it did amount to unfavourable treatment it was nonetheless justified for the reasons set out in respect of the corresponding indirect discrimination complaint above. 19 April 2022

[222]On 19 April 2022 the Claimant sent an email updating R1 that she had an updated sick note [346] signing her off until 3 May 2022 with anxiety and noting also “extreme anxiety, post natal factors, element of PTSD, started medication, review 3 May and further appointments will be necessary, letter to follow”.

[223]It would have been clear to R1 from this that the Claimant was very unwell and suffering from substantial impacts on her ability to carry out day to day activities but it would not have been apparent or foreseeable that the impacts would last for 12 months or more.

[224]On 20 April 2022 Mr Gill-Collis wrote to the Claimant as follows [348-349]: Thanks for getting back to me Glynis, I’m sorry to hear that you are experience challenges with your health at present, specifically your mental health. The hope is that we can get 70 of 160 further understanding of the challenges you face and provide informed support. You mentioned that you had requested a temporary flexible working arrangement - now that I have shared the link to the policy and forms please can I ask, with the support of your union rep maybe and or the mental health team, you submit the request documenting the duration and proposals. I appreciate that you have mentioned that work is a source of your anxiety, at present you have now been off since 7 February 2022. The council long term sick absence is a continuing absence of twenty-eight calendar days or more. The sickness absence procedure notes the that after 14 days of continued sickness absence a stage 1 meeting is to be held; we are currently outside of that range and will therefore need to engage with the process so that we can offer support and where possible support a return to the workplace. As you have mentioned you are experiencing challenges with concentration, that you will not be able to attend the stage 1 meeting organised for Friday 22 April 22 in person. Are you able to attend virtually, via Teams? If not how would you feel that I send my proposed questions to you, and you send through a written submission for me to review and consider? Alternatively, you can send a written submission to your union representative and they can attend the meeting on your behalf? You have made me aware that you are currently engaging with your local mental health team, in addition please find the offer that the counsel has for staff: EAP Service: […] The stage 1 - long term Sickness absence meeting is to have a discussion regarding your current absence, prognosis and health and to identify any areas where the organisation can support you and support a return to work where appropriate.

[225]Whilst strictly part of the formal procedure, this meeting was an opportunity for the Claimant to talk about any barriers to her regaining her health and what would support her returning to work. It should have been clear to the Claimant from this correspondence that R1 wanted to discuss ways in which she could be supported and the options for her engagement in the discussion. The Claimant was clearly ill and struggling to communicate but we consider that the Claimant should have tried to engage with the process and part of the reason that she did not was that she had (as reflected in the WhatsApp messages that the Claimant exchanged with her mother) unfairly concluded that it was R1’s fault that she had fallen ill. From this point we find that the Claimant had unfairly turned against her employer to such an extent that it became a barrier to her engaging in dialogue 71 of 160 with R1 and ultimately returning to work.

[226]The Claimant replied on 21 April 2021 [350] to say: Subject: Stage 1 meeting […] If we could cover the questions in writing would be stressful for me. My gp stated he would write a letter outlining my illness. I will forward to you. I will look at flexible working but that will be in sometime due to my illness I need to take each day as I find it.

[227]We take it that the Claimant wanted to engage with the process in writing. Had the Claimant at this time explained to R1 what arrangements she could make for childcare (for example through financial support offered by her mother) and opened up the conversation with R1, either in the proposed long term ill health meetings or separately, then that might have helped her recover her health and return to work. However, this e-mail of 21 April 2022 suggests that she saw the need to recover her health first before she could then turn her attention to how she might practically return to work at the same time as having a child to care for on her own.

[228]The Claimant then, on 22 April 2022 provided R1 with a letter from her GP which said [351-352]: I am writing in support of this 50y Female with severe anxiety. It is unusual to develop a stutter and a tremor in anxiety and shows the burden that she is carrying. This is partly brought on by stress, which is related to events both at home and at work. Work stresses are to be expected but have not been helped by her bereavement. There is also a history of PTSD, of which you may not be aware, that was experienced at work over a decade ago. She continues to get support from her post-natal counsellor, as well as our surgery. We have started her on anti-anxiety medication, advised her to seal counselling and will be following up with her on the 03May and closely after that. The severity of her condition needs to be carefully managed Thank you in advance for your time and consideration. Please do contact us at the above address if you have any further questions.

[229]This is not a diagnosis of current PTSD, it is a comment on the Claimant having had PTSD in the past. On 3 May 2022 [354] the Claimant submitted a further fit note for anxiety disorder to 31 May 2022. The stage one meeting was due to 72 of 160 take place on 22 April 2022 but did not in fact happen until 6 May 2022. It was therefore delayed by 14 days. The Claimant was represented at the meeting by Ms Nield. The Claimant herself did not attend. We accept Mr Gill-Collis’ summary of the meeting which he sent to the Claimant on 9 May 2022 [356- 357]: Subject: Stage 1 Outcome Re: Sickness absence meeting (Stage 1) Outcome […] I am writing to confirm the outcome of our meeting on 6 May 22. Although you were unable to attend, for health reasons, your union representative (Jackie Nield) attended on your behalf, having previously spoken to you about providing me with an update on your health and wellbeing. Farah Muhammad, HR Consultant, attended this meeting in order to support me procedurally. The purpose of the meeting was explained i.e. that this was a Stage 1 meeting being held given that you have exceeded 14 or more continued days of absence from work. As well as providing me with an update of your current health and wellbeing issues, it was an opportunity to establish what could be done to support your return back into the working environment. I started the meeting by giving a brief overview of events leading up to your current sickness absence. I confirmed that you were due to return from a period of maternity leave just as the Covid lockdown was coming to an end. Prior to this projected return, you initially asked to work from the office one day every fortnight when lockdown ended. Shortly after, you contacted me again to advise that you would not be able to return to the office as your plans for childcare had fallen apart. Your new proposition was that you work from the office for no more than two days per month (on alternate Tuesdays). You requested a referral to our Occupational Health Unit, which was immediately undertaken. You later advised me that the resulting Occupational Health Unit report was not reflective of what was discussed during your meeting with them, and as such you asked for a number of amendments to be made by Occupational Health. For this reason Occupational Health were unable to release this report to me, but fortunately you later provided me with a copy (with your amendments attached). Following your return to work from maternity leave on 11 January 2022, 73 of 160 and having received advice from Human Resources, you were offered a phased return to the office of one day per week for six weeks. You responded by email to confirm that you would not be likely to return in that first week due to a combination of having a hospital appointment, some annual leave booked, and that you did not have any childcare in place. We then offered the opportunity for you to work from home for a full four weeks on your immediate return to work, and then subsequently (with effect from 1 March 2022) returning to the office for two days per week (i.e. less than the time in the office recommended by our Chief Executive post lockdown). On 9 February you advised me that your GP had signed you off on sick leave for the next month. Jackie Nield then confirmed the following:• that you are currently very unwell suffering from bereavement, postpartum depression, PTSD, stress, and anxiety

• that these conditions have resulted in you having a stammer therefore experiencing difficulties communicating

• you feel that the anxieties that you have about your son’s health in relations to Covid, due to him being auto immune suppressant, and work related stresses in relations to communication regarding the requirement to attend the office, has resulted in your current period of absence. Jackie Nield also informed me that you have engaged with your GP and your local mental health team. Jackie then read out notes from a letter from your mental health nurse sent on the 21 April 2022, confirming that you are currently taking anxiety medication and have been advised to take up counselling (Jackie believes you will be taking this through the primary care trust). Please note that until this point I was unaware of any letter of support from a mental health nurse. The latest correspondence I have received is a letter from your GP, […], dated 19 April 2022, in which he confirms that, as mentioned by Jackie (above), he has prescribed you anti-anxiety medication, and has recommended you seek counselling. Your primary concern is obviously your son’s health - that he will be less at risk from Covid when he reaches his first birthday, at which point you would be willing to return to normal working arrangements (with support from us through any necessary adjustments that can be accommodated through the family friendly framework). I will be happy to review any official request for flexible working via this process, but acknowledge that, to date, you have not made a formal request. 74 of 160 Farah Muhammad confirmed that Human Resources would make contact with the Occupational Health Unit to chase up your previous report, and that it would also be beneficial - given your current health issues - to be rereferred to them. It was agreed that I would submit a rereferral to the Occupational Health Unit (which has now been drafted and attached to this email). Farah has since confirmed Occupational Health have communicated that the final version of their report has been sent to you, but you have advised them that due to your health you are unable to review and consent it’s release. As the only report I have is the amended one you sent to me, this is the one that I have made reference to in the meeting. As I explained at the meeting, in line with the absence management policy, we will remain in contact but if you are unable to return to work and have continued absence I will be required to arrange a further (Stage 2) meeting with you. If you have any questions or are unclear of any points in this letter, please contact me immediately.

[230]The same day Mr Gill-Collis sent Mr Hyatt an email saying: “Jackie was quite belligerent and pretty much demanding we accede to Glynis's wishes. I advised that our original business case still stands, but we will see what we can do in the meantime to help with the issues (other than childcare) that GM has raised. I'll be doing a rereferral to OH. But TBH from what Jackie is saying Glyn doesnt sound like shes capable of returning full stop.”

[231]The Claimant complains that on 21 April 2022 Ms Muhammad postponed the stage one meeting scheduled for 22 April 2022 by only one week and failed to carry out a reasonable investigation into what could be done to support the Claimant to attend. The Claimant says that this amounted to direct disability discrimination and disability harassment [LOI 4.3.2 and 7.1.4]. The meeting in fact happened on 6 May 2022 and it was therefore delayed by two weeks, not one. These complaints are not well founded. R1 did investigate the options for the Claimant participating in the meeting and reached a reasonable conclusion that the best way for the meeting to proceed was for the Claimant’s position to be represented by Ms Nield on the Claimant's behalf. Mr Gill-Collis had said to the Claimant “As you have mentioned you are experiencing challenges with concentration, that you will not be able to attend the stage 1 meeting organised for Friday 22 April 22 in person. Are you able to attend virtually, via Teams? If not how would you feel that I send my proposed questions to you, and you send through a written submission for me to review and consider? Alternatively, you can send a written submission to your union representative and they can attend the meeting on your behalf?”.

[232]Harassment 7.1.3: Whilst the rescheduling of the meeting might have been unwanted conduct it did not relate to disability (the Claimant was not disabled at this time) and even if we are wrong and it could be said to relate to disability it was not with the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her and 75 of 160 even if it did have that effect it was not reasonable for it to have had that effect. R1 delayed the meeting by a reasonable period.

[233]Direct discrimination 4.3.2: What R1 did, did not amount to less favourable treatment and even if we are wrong and the Claimant was disabled at this time, there is no evidence that R1 acted as it did because of the Claimant’s impairment. There is nothing to suggest that R1 treated the Claimant any less favourably than someone in the same circumstances who did not have the Claimant’s impairment. LOI 4.3.3 Direct Disability Discrimination, LOI 5.1.4 Discrimination Arising From Disability, LOI 7.1.5 Harassment

[234]The Claimant complains that R1 refused her request to work from home until 7 July 2022 at the Stage 1 sickness absence meeting on 6 May 2022 and that this amounted to direct disability discrimination, discrimination arising from disability and disability harassment.

[235]On the basis of the email from Mr Gill-Collis to Mr Hyatt on 6 May 2022 [612] we conclude that Ms Nield, at the 6 May 2022 meeting, did renew the Claimant’s request to work from home with two days in the office per month until 7 July 2022. However, it is clear that, even had that request been granted, the Claimant was not well enough to have returned to work on that basis and there was no evidence that she would also have had childcare in place at that time to ensure that in working hours she was not at the same time having to care for her baby. The Claimant in her own email of 21 April 2021 [350] made clear that she was not in a position to return to work and that flexible working would need to be looked at ‘in some time due to [her] illness’.

[236]Harassment 7.1.5: We find that this was unwanted conduct but even had the Claimant been disabled at this stage it was conduct that did not relate to her impairment, it related to her childcare arrangements and concerns. Even if we are wrong and it could be said to relate to disability it was not with the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her and if it did have that effect it was not reasonable for it to have had that effect, in particular given the points noted above.

[237]Direct Discrimination: LOI 4.3.3: Even had the Claimant been disabled at this stage there is no evidence that R1 treated the Claimant less favourably that it would have treated someone without the Claimant’s impairment, particularly in circumstances where the Claimant herself was indicating that she was not fit to return to work under any arrangement and R1 needed those in the Claimant’s role to do the in person activities associated with the role to address the backlog of work. In any event the Claimant had provided no explanation of how she would cover her childcare commitments if allowed to work fully from home.

[238]Arising From & LOI 5.1.4: Even had the Claimant been disabled at this stage the conduct complained of was not unfavourable treatment because there was no sense that the Claimant was well enough to have started working from home in any event. Further, R1 did not refuse the Claimant the opportunity to work from home because of any of the Somethings. It did so because it justifiably 76 of 160 needed those doing the role to undertake the in person aspects of the role and, in any event, the Claimant had not provided any reassurance that she would have childcare in place during her working hours. 9 May 2022 - Second OH referral 358-361

[239]On 9 May 2022 Mr Gill-Collis made a further referral of the Claimant to OH [358- 361]. He said: This is a follow-up referral to my original referral of 7 January 2022 (of which I have never received the report, as I gather Glynis asked for amendments to be made which were not agreed to by OH). Glynis has now been off on long term absence for 63 days since the original referral. Her GP has signed her off with anxiety issues and has mentioned in his notes history of PTSD and post-natal factors. He has started her on a course of anti-anxiety medication and has advised Glynis to seek counselling. Please note that under advice of Glynis’s Union Rep at a recently held Stage 1 sickness meeting, we would ask that this matter is not dealt with by Hyasynth. [..].] Please advise how Glynis can be supported by us with a view of helping her return to work. Could you also advise Glynis’s union representative, Jackie Nield, of any appointment date in order that she is able to support Glynis on the day.

[240]This was a sensible referral that asked the right questions including as to whether the Claimant was covered by the Equality Act. 8 June 2022 OH Report

[241]This led to a consultation with OH on 8 June 2022. OH issued their report to R1 on 6 July 2022 [364-367] which said: […] Ms Moore has been off work since 7th February due to heightened anxiety this is the result of combination of factors including postnatal factors and this is on the background of a history of PTSD but also a more recent bereavement. In addition, she had cellulitis of the left leg, this has now resolved. Ms Moore has been prescribed medication and has been receiving therapy and counselling, but further therapy has been advised. Her symptoms are reducing, but she remains extremely anxious particularly about her situation at work where she feels misunderstood and unsupported. She informed me that she feels her manager has memory lapses and this heightens her anxiety. 77 of 160• Are there any underlying medical conditions affecting this individual’s performance or attendance at work? heightened anxiety due to a combination of factors including post natal. Her symptoms have resulted in some physical symptoms include developing a stammer.

• Is she currently fit to carry out the duties outlined in the job description, if not what can I, the manager, do to support the employee? work. It would be helpful if a stress risk assessment was carried out. It may be helpful to have a meeting/case conference as this could provide a fuller understanding of Ms Moore's ill health and allow a supportive phased return to work programme to be discussed or possibly other options explored.

• Are there any short-term/permanent adjustments to the work tasks or environment that would help facilitate rehabilitation or an early return to My recommendation would be a phased return to work.

• Is the health problem likely to recur or affect future attendance? attendance will be reduced, Is temporary or permanent redeployment advisable on medical grounds? This is not currently required, however in view of her heightened anxiety it may be helpful, if operationally feasible, for Ms Moore to have an alternative manager.

• Is the employee likely to be permanently incapable of undertaking, the duties of their role and other/ .gainful employment (requiring My opinion is that Ms Moore is not permanently incapable of undertaking the duties of her role.

[242]We note that the report does not give an opinion on whether the Claimant would be classed as disabled under the EqA and does not give a clear indication of the length of time that the Claimant was likely to be off work and R1 did not press OH for answers on those questions. However, the report comments that the Claimant’s symptoms were reducing. 78 of 160 13 May 2022 - LOI 4.3.4. Direct Disability Discrimination, 5.1.5 Discrimination Arising From Disability, 7.1.6. and 7.1.8 Harassment

[243]The Claimant complained that on 13 May 2022 Ms Muhammad arranged a stage two meeting under the sickness absence processes and said that this amounted to direct disability discrimination, discrimination arising from disability and disability harassment. This appears to be an error in the list of issues because the Stage 2 meeting was not arranged until 14 July 2022. In any event there is no evidence to support the Claimant’s assertion [CWS123-124] that On 13 May 2022 Ms Muhammad advised that a Stage 2 meeting should go ahead after the Claimant’s OH appointment (8 June 2022). On the balance of probabilities we do not consider that this happened. It happened on 14 July 2022.

[244]The Claimant also alleged [LOI 7.1.8] that on 21 July 2022 Ms Muhammad subjected the Claimant to disability harassment by scheduling a formal stage 2 meeting for the 25 July 2022 (which the Claimant said ignored the recommendations of OH and failed to consider requests set out in the email from Jackie Nield dated 21 July 2022).

[245]On 14 July 2022 Mr Gill-Collis issued the Claimant with a letter which said as follows [368]: Re: Case conference (Stage 2) Sickness absence meeting I am writing to invite you to a stage 2 meeting as a result of your continuing absence of twenty-eight calendar days or more. Please find your absence details below: Start date of absence: 7 February 2022 Number of working days off: 109 Reason for absence: Anxiety The purpose of this meeting is to have a confidential round table discussion regarding your health and how this impacts your work. At the meeting we can have an updated discussion on the latest medical advice and any work-related matters and can discuss any HR matters. We want to hear from you and would welcome any input that you would like to make. The discussion is about how best we can support you at work, but must be within the framework of the need to effectively run the Council’s services. The meeting has been arranged on 22 July, 10:30am, at Town Hall - Hornton St - Rm2.19 on the 2nd Floor. In attendance will be myself and Farah Muhammad, HR Consultant – Employee Relations Team. You have the opportunity to be accompanied by a trade union representative or you prefer you bring a work colleague. Please note that if you do not attend then the matter may be heard in 79 of 160 your absence unless there is a satisfactory explanation as to why you were unable to attend. I must advise you that in accordance with the Council’s Sickness Absence Procedure one outcome of the (stage 2) meeting is that a stage 2 warning maybe issued requesting that you return to work within the month. If you do not return to work within a month, a sickness panel (stage 3) maybe convened to consider an employees continued In the meantime, if you have any concerns or are feeling in any way anxious about the meeting then please do not hesitate to telephone me and I will try and answer any questions you might have.

[246]Although not the complaint set out in the List of Issues (because the second stage meeting was initiated on 13 July 2022 not 13 May 20220, for completeness we find as follows:

[247]Harassment 7.1.6 and 7.1.8 - whilst conduct that the Claimant did not want, we do not consider that arranging the stage two meeting amounted to disability harassment. The Claimant was not disabled at this stage but even if we are wrong and it could be said to relate to the Claimant’s disability it was not with the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her and even if it did have that effect it was not reasonable for it to have had that effect. The stage two meeting was justified and was an opportunity for discussion and for the Claimant to put her point of view across.

[248]Direct Discrimination 4.3.4: R1 did not know and could not reasonably have been expected to know that the Claimant had a disability at this time. Nonetheless, even if we are wrong, R1 did not treated the Claimant less favourably than someone who was not disabled and also on sick leave. R1 would have acted in the same way towards a hypothetical comparator who was not disabled, it would also have initiated stage two of the process and there is no evidence to suggest otherwise.

[249]Arising from disability 5.1.5: If we are wrong on the question of disability we find that moving to stage two of the process did arise because of the Claimant’s sickness absence [LOI 5.2.4] however it did not amount to unfavourable treatment because it was also an opportunity for the Claimant to discuss her circumstances with R1 and, if it did amount to unfavourable treatment, it was nonetheless justified for the same reasons that R1 was justified in starting the sickness absence management process in April 2022.

[250]On 18 July 2022 Ms Nield contacted Ms Muhmmad to propose a discussion which took place on 19 July 2022. At that discussion Ms Nield said that the Claimant needed informal and sensitive support, not a formal process [JNWS66]. We accept Ms Muhammad’s evidence [FMWS11] Ms Nield had outlined to her that the issue was not only about childcare but also the Claimant’s anxiety about exposing her child to COVID. Ms Muhammad pointed out to Ms Nield that the second absence review meeting had been delayed to fall 80 of 160 after the Claimant’s child’s first birthday. We accept that after their discussion, Ms Muhammad hoped that they could organise a phased return to work strategy for the Claimant. We accept that Ms Muhammad told Ms Nield that R1 needed to understand how it could support the Claimant back to work. We accept her evidence that Ms Nield said she would see if the Claimant could engage with R1.

[251]At this meeting Ms Neild was not able to give Ms Muhammad assurances as regards the Claimant’s childcare arrangement and Ms Muhammad pointed out that by this point the Claimant’s son was a year old and so the concerns about him catching COVID or RSV would have passed. Ms Muhammad and R1 continued legitimately to be concerned about the Claimant working from home full time, at the same time as trying to care for her son because she had said she could not afford child care.

[252]We also note here that Ms Nield’s evidence [JNWS49-50] was that at the 6 May 2022 meeting she told R1 that the Claimant only needed to work from home until her son turned one year old (i.e. until July 2022) and that her son would be less at risk from Covid when he reached his first birthday, at which point she said the Claimant would be willing to return to normal working arrangements. Direct disability discrimination LOI 4.3.5, discrimination arising from disability LOI 5.1.7, and disability harassment 7.1.7.

[253]The Claimant brought complaints related to those addressed above that by proceeding to stage two of the process and failing to have an informal discussion with the Claimant, failing to carry out a risk assessment and failing to have a case conference to get a fuller understanding of the Claimant’s health, R1 had subjected her to direct disability discrimination LOI 4.3.5, discrimination arising from disability LOI 5.1.7 and disability harassment LOI 7.1.7. She said that this was contrary to recommendations of the occupational health report. We address these complaints as follows noting firstly that they are not well founded because at this point in time the Claimant did not have a disability because it was not likely that the adverse effects on her day to day activities would be long term.

[254]We note that:254.1 there was no purpose at this time carrying to out a risk assessment because there was no suggestion at this time that the Claimant could come back to work. In event this was addressed by Ms Tolhurst on 3 August 2022 in her email to the Claimant [385] when she said: “I note from Dr Sherry's report that she recommends a meeting and a stress risk assessment so we would want to explore with you what your current stressors are so we can consider how we may be able to mitigate these /make reasonable adjustments.”

254.2 there was also no failure to have a meeting/case conference so as to get fuller understanding of Claimant’s ill health. This was the purpose of the stage 2 meeting and in fact it was described as a ‘meeting/case conference’ [368, 377]. OH did not suggest that a case conference needed to be with the Claimant’s treating medics and or an OH professional.

254.3 for the reasons we have explained, R1 was justified in following a formal 81 of 160 process and there is no evidence that an informal discussion would have reached a different outcome. The central problems would have remained the same.

[255]In any event:255.1 Direct discrimination 4.3.5: There is no suggestion that by proceeding with the stage 2 formal sickness procedure R1 treated the Claimant less favourably than it would have treated someone without the Claimant’s impairments.

255.2 Discrimination arising from disability 5.1.7– There is no evidence that R1 in proceeding with the stage 2 formal sickness procedure failed to have an informal discussion with the Claimant, failed to carry out a risk assessment or failing to have a case conference to get a fuller understanding of the Claimant’s health because of any of the Somethings.

255.3 Harassment 7.1.7– What the Claimant really wanted was for R1 not to follow its formal process. In any proceeding with the stage 2 formal sickness procedure, failing to have an informal discussion with the Claimant, failing to carry out a risk assessment and failing to have a case conference to get a fuller understanding of the Claimant’s health was not with the purpose of violating the Claimant’s dignity or creating an her. Even if it had that effect it was not reasonable for it to have had that effect.

[256]Between 19 July 2022 and 22 July 2022 the Claimant was in touch with a member of R1’s team who liaised with their employment assistant programme providers (counselling support) to explore options for the Claimant getting counselling given her difficulties with her stammer and speech. The Claimant expressed in an email to that person [373] that she was fearful of losing her job but also: My boss is definitely a trigger to my anxiety and for me to return to work I need to address this trigger as well as the trigger of fear I have my son may be in danger or die from covid etc. Having lost his twin this is my primary fear and trigger.

[257]It therefore appears that, notwithstanding the earlier medical advice she said she had received about needing to shield her son until he was 6 months/one year old and that he was now older than one year old, her anxiety about him contracting COVID continued to be at the forefront of her concerns.

[258]We also note that in the Claimant’s witness statement [CWS127] she said “On 8 June 2022 at 11am I spoke to [OH] I explained my direct Manager Mr Gill-Collis had a severe memory problem. I would have long conversations and at a later date he would deny the conversation by saying I do not remember that, but I could have said it. His inability to remember conversations exaggerated my thoughts. I would be sure we had talked about my anxiety and his mother-in-law and he would not recall it. The trigger of Mr Gill-Collis being at a meeting made 82 of 160 me physically shake and become tearful. That would be the start of a panic and anxiety attacks. I believed Mr Gill-Collis attending the meeting would be made out to be a liar and a joke.” The OH report referred to was at [365]. The Claimant clearly means that she thought that she herself would be made out to be a liar and a joke. We do not accept this, there was no evidence at the time that this was a legitimate concern of the Claimant or that she had ever raised it in the past as something that troubled her about Mr Gill-Collis. We also accept R1’s submission that the Claimant sought, under cross examination, to introduce an entirely new and serious allegation to the effect that she found Mr Gill-Collis intimidating. She said she had only just remembered as she was giving her evidence that he had sent an email that she took as a threat to dismiss her. We did not find the Claimant’s evidence probable in this regard. We note that Mr Gill-Collis did sometimes have lapses of memory in cross examination. That, in our experience, is not unusual and there was nothing untoward about it during Mr Gill-Collis’ evidence. Notes of meetings under the sickness absence process would be documented and the Claimant would have the chance to comment on those notes if she felt they were inaccurate.

[259]On 21 July 2022 Ms Nield contacted Ms Muhammad and Mr Gill-Collis to say: Good afternoon, sorry for the late email on behalf of Glynis. Unfortunately, Glynis will not be able to attend the meeting scheduled for tomorrow. The reason being that as stated in the OH report she is not well enough to return to work. She is currently waiting for contact from the council workplace solutions to help with counselling regarding her bereavement and additional work-related issues. It has also been mentioned that one of her triggers Is her manager and the looking at the option of her being managed by someone else, which we hope will be looked at going forward. She has been waiting since May for a reply to her request for counselling from workplace options and she is currently in contact with Nick Moffitt, who is helping with access to this service. She has also been offered six more sessions with Wandsworth to help with her ongoing issues. We ask that the meeting is postponed and that we look at what can and is being done to help Glynls return to work. There is of course a lot more detail than Is in this email and should you wish, I can meet with you to go through Glynis' concerns.

[260]On 25 July 2022 Mr Gill-Collis, in response to the suggestion that he was a trigger to the Claimant’s anxiety, confirmed that Mr Hyatt would chair the Stage 2 meeting [376] and the meeting was then pushed back to 3 August 2022 [377]. LOI 4.3.6. Direct Disability Discrimination

[261]The Claimant complained that on 21 July 2022 Ms Muhammad ignored a recommendation of OH that R1 discuss what the Claimant wanted via an informal process and invited the Claimant to a stage 2 sickness absence meeting. She said that this amounted to direct disability discrimination LOI 4.3.6 [368-369]. Firstly we repeat that this complaint is not well founded because at this point in time the Claimant did not have a disability because it was not likely that the adverse effects on her day to day activities would be long term. We also refer to our findings above and repeat that there was no evidence that R1 treated the Claimant less favourably as alleged than it would have treated 83 of 160 someone who did not have her impairment. 1 August 2022

[262]There then followed an important email exchange [379-380]. The Claimant wrote to Ms Muhammad on 1 August 2022 at 7:28 am saying: I won’t be attending the meeting as my current illness has not changed. I’m still awaiting news from Nick Moffat (rbkc) about counselling to be supplied by rbkc and my NHS team has now put me on a waiting list for a psychologist. My perinatal team are also trying to get me help but I’m on their waiting list too. Contacting or even going into work aswell as my Manager Gill-Collis are triggers to my anxiety. This causing an adverse reaction that can last over a week. Walking towards the rbkc Borough causes a negative physical reaction. This then effects my son who is also a trigger because of my fear of losing him. I lost his twin and through the bereavement of my loss it’s also had an adverse effect. My perinatal nurse Kelly Arnold said she is happy to speak to you about my situation. [perinatal nurse email address] I have a NHS support person who you can also speak to. He is trying to support me with a number of things one being getting financial aid due to me being on half pay. [NHS support contact details]

[263]Ms Muhammad replied that afternoon to say: Sorry to hear that you remain unwell and are unable to attend Wednesday’s meeting. Would it be possible that your provide a written submission or your union rep come in your place. So to take into consideration you raised regarding your line manager Andy Hyatt will be chairing the meeting. I note that you have provided contact details for contacts that can provided medical information in regards to you, it is normal protocol that any reports or medical information that can be provided would come to the organisation from these specialist by way of occupational. Have occupational health ask that you provide consent that they make the necessary contact, as I don’t feel that I am the appropriate person to 84 of 160 make this contact and asses what is being relayed to me as I am not medically trained. If they can provide any reports or supporting information, it can be consider at the meet.

[264]Ms Nield 29 minutes later replied on behalf of the Claimant to say: After our conversation last week in regards to Glynis and her on-going health issues, I gave you the contact details for [perinatal nurse], did you not contact her? If the medical information has to be brought to the meeting by Occupational Health can I ask that you provide them the details of the persons/organisations ( This includes [NAME] from Kensington & Chelsea) that Glynis has put in her email and ask them to make contact and ask for an update and what is needed asap to help Glynis return to In the meantime, as Glynis has said, she is still unwell and is not able to attend a meeting at present. She is still waiting to hear back from [NAME] for the promised specialist counselling and from Talk Wandsworth and NHS support to also help with the issues Glynis has outlined. Can I ask that the meeting is cancelled until OH have contacted the persons outlined in Glynis’ email and we wait for an update from them to help with a way forward.

[265]On the balance of probabilities we conclude that Ms Muhammad then replied to Ms Nield at 15:35 and that it was this email that prompted the Claimant to then send the email [383] which is the subject of LOI 4.3.7, LOI 4.1.1, LOI 5.1.8, LOI 7.1.10 and LOI 7.2.1: I have not contacted the nurse as I don’t feel I am the right person to make that contact, which is what I expressed when we met, there is a clear process in which the organisation engages with medical experts and as explained its by way of occupational health. I can provide occupational health with the details that have been provided to me but as you are aware again, there are confidentiality parameters re engaging with occupational health and the client so usually they would want the information by way of the employee and may require further discussion with the employee. We do have an occupational health report recently provided based on an appointment held with occupational health and the employee which would be the basis of discussion for this week meeting. As the meeting has been delayed for such a long period due to waiting for an OHU report to enable informed discussion to be. The service are not minded toto cancel the meeting but are happy to take a written submission or for 85 of 160 you to attend on Glynis’s behalf. There is a absence management that the service need to adhere to, based on the information that has been provided from you Jackie, the service have changed the chair of the meeting but to undertake the necessary discussions employee engagement is necessary whether it be by way of you, in writing or of the employee can attend via Teams.

[266]In the circumstances, the Claimant’s son now being over a year old and given the extended timescales that the sickness absence process had been running to and the need of R1 to manage public finances and its staff resources, we consider that it was reasonable for R1 to not delay the stage 2 meeting (which, as we explain, was eventually held on 11 August 2022). Reasonable Adjustments – LOI 6.2.6

[267]The Claimant alleges that R1 failed in a duty to make reasonable adjustments for the Claimant in applying a PCP requiring employees to “carry out the full range of duties of their role”. She said that this put her at a substantial disadvantage because it resulted in her suffering from a complete shutdown and her mental health deteriorating to the point where she was considering suicide and had to go on sick leave which subsequently led to her dismissal. She said that R1 should have applied a reasonable adjustment of considering a “phased return, flexible hours and [allowing] her to work from home until July 2022”.

[268]For reasons we will come on to explain, until 9 December 2022 R1 did not know and nor could it reasonably have been expected to know that the Claimant had a disability. The Claimant’s impairments had not been long term and could not reasonably have been expected to be long term before that date and so the duty to make reasonable adjustments did not arise.

[269]However, even if we are wrong and the duty to make reasonable adjustments did arise, we accept R1’s submission that it did offer a phased return from maternity leave, namely one day in the office for 6 weeks (293). It also offered four further weeks of working from home from 1 February 2022 to give the Claimant more time to sort out child care (305). R1 also offered the Claimant the option of going back on maternity leave. In the absence of any explanation by the Claimant as to how she was going to avoid needing simultaneously to work and care for her baby (because of her absence of stable childcare arrangements) no further adjustments could reasonably have been expected of R1. In any event, soon after 7 February 2022 the Claimant suffered a breakdown and a very rapid decline in her health and she was not able to return to work on a working from home, phased return or restricted duties basis. We refer to Mr Gill-Collis’ reasonable and supportive email of 20 April 2022 [348-349] and the Claimant’s reply of 21 April 2022 [350].

[270]The Claimant’s request to work from home (which meant not carrying out those aspects of the role that could only be done face to face) and only come into the office one day a fortnight or two days per month was not because of the Claimant’s disability (her anxiety about her child catching COVID being rational and not a mental impairment), it was because of her not having made suitable 86 of 160 childcare arrangements and her finances being such that she could not afford the childcare that she needed (taking into account the needs of her baby).

[271]On 1 August 2022 at 15:06 the Claimant sent the following email to people who were treating her/an NHS employment specialist and to R1’s OH team [382]: I’m sorry but due to my anxiety I’m struggling to use my phone. My body can’t cope. The below shows you what kind of people I’m dealing with. I’m being transparent. No offer of a plan to help me. I’m screaming on the inside. Nothing has changed I’m still unwell I’ve still had no treatment. I’m still waiting for a psychiatrist. I can’t deal with these people. I’m done they have pretty much pushed me to feeling crazy.

[272]We assume that the Claimant attached her correspondence from Ms Muhammad of 1 August 2022 and that this triggered her email. The Claimant was clearly unwell but this was not a rational or reasonable response to what had happened. A purpose of the Stage 2 meeting was to discuss a plan to help her and R1 would not at this stage (now that the Claimant’s child was more than a year old) have understood what the Claimant wanted or needed (based on what the Claimant had told them - either herself or via her representative).

[273]The email correspondence with Ms Muhammad also appears to have triggered the following email from the Claimant to Ms Muhammad [383]: Why don’t I just kill myself and make it ok for you. Because that’s what you have triggered in me. You ignorant self important inhumane being

[274]This e-mail clearly reflects the Claimant’s poor state of mental health but it was an extreme and unwarranted response to Ms Muhammad particularly as regards the final insulting phrase. Ms Muhammad, out of concern for the Claimant’s wellbeing, contacted Ms Neild. Ms Nield was able to speak to the Claimant to ensure that, whilst unwell, she was not a suicide risk. We accept Ms Muhammad’s evidence that later Ms Nield confirmed to her that the Claimant was ok, she was just frustrated and upset [FMWS19].

[275]Ms Tolhurst having been made aware of the circumstances and of the Claimant’s insulting email to Ms Muhammad then, on 3 August 2023 [384-385], sent the following email: Hi Glynis I have been forwarded the message below by Farah who I line manage. Whilst I appreciate you are finding your current work situation stressful your email is totally unacceptable to send a work colleague especially, one who has been working with you, Jackie and your managers to attempt to resolve some of your issues and advise you on the Council's 87 of 160 policies and procedures in a fair and empathetic way. Any future messages of this nature will not be tolerated. I’m aware you have said you will not be attending the stage 2 meeting which is scheduled for today as you find contact with your line manager David Gill-Collis triggering and being in the borough causes you a negative physical reaction. Whilst I understand that you currently suffer from heightened anxiety we need to meet to discuss your continued absence, Dr Sherry's OH report dated 8 June 22 and how we can support your return to work. The stage 2 meeting will be rearranged for next week, Farah will be in touch with the details. Given you currently find contact with David stressful we have agreed that he will not take part in this meeting or any future meetings regarding this current period of sickness. Andy Hyatt will attend in his place. We also understand that you are not up to attending the meeting in person so we have arrange to hold this via Teams. If you are unable to attend then we would welcome written submissions that we can consider or for Jackie to attend on your behalf however, the main purpose of the meeting is to hear from you and how we may best support your phased return so we would strongly encourage you to attend. I note from Dr Sherry's report that she recommends a meeting and a stress risk assessment so we would want to explore with you what your current stressors are so we can consider how we may be able to mitigate these /make reasonable adjustments. I also note you have provided the contact details for your perinatal nurse Kelly Arnold so we will pass these on to Dr Sherry who can contact Kelly should she feel this necessary. Farah and I will also follow up with Nick Moffatt regarding the counselling offer.

[276]We find that this email could have conveyed the same message in a less severe way. However, it was not an inappropriate response to what the Claimant had done, taking into account Ms Tolhurst’s duty to Ms Muhammad and her obligation to uphold R1’s standards. The e-mail ended on a constructive note demonstrating R1’s keenness to explore with the Claimant what her stressors were so they could consider how they might be able to mitigate them and make reasonable adjustments.

[277]We do not agree that Ms Tolhurst was chastising the Claimant for threatening to kill herself. We note that she only sent the email having been reassured that the Claimant was in fact ok. Ms Muhammad had discharged R1’s duty of care to the Claimant by quickly asking Ms Nield to call the Claimant and having been reassured by Ms Nield there was nothing further that R1 or Ms Tolhurst should have done. The Claimant said that R1 should have called the police. That might have been an appropriate step had Ms Muhammad not got reassurance as to the Claimant’s wellbeing from Ms Nield.

[278]A number of the Claimant’s complaints centre on Ms Tolhurst’s (R2) email of 3 88 of 160 August 2022 and the allegation that Ms Tolhurst chastised the Claimant for threatening to kill herself and failed to take any adequate action to check the welfare of the Claimant i.e. carry out a welfare check with the Claimant, asking verbally how she was. Our findings on those complaints as follows and we give them notwithstanding that the Claimant did not have a disability at this stage: LOI 7.1.10 (R1) LOI 7.2.1 (R2) - Harassment

[279]Whilst this was unwanted conduct and did relate to the Claimant’s medical condition the conduct complained of was not done with the purpose of violating circumstances reasonable for it to have done so. The Claimant had been rude and Ms Tolhurst’s email was justified, R1 having done what was required to check the Claimant’s welfare. LOI 4.3.7. (R1) LOI 4.4.1 (R2) Direct Discrimination:

[280]The treatment complained of was not less favourable treatment than that which would have been afforded to someone who did not have the Claimant’s impairments. There is no evidence that the Claimant was treated worse than a hypothetical comparator and Anne Lord was not a valid comparator – she had not done what the Claimant had done. Neither R1 nor R2’s treatment of the Claimant was because of her impairments. LOI 5.1.8 Arising From

[281]The treatment complained of was not unfavourable treatment. The treatment was also not because of the Somethings.

[282]Around 20 minutes later Ms Nield replied to Ms Tolhurst’s email to say [384]: Glynis is currently waiting for counselling and to see a psychologist regarding the various issues she has which are on-going. I don’t believe after talking to her that she is able to attend a meeting at present, and will not be until she has received the help she needs. As you say, she has provided several names and numbers for OH to contact and they can update on Glynis’ condition. At the present time, everything that could help Glynis move forward seems to on hold and she is waiting for different persons/specialists to contact her, so she can get the help she needs. I ask for patience, as this is not a short term process and Glynis has continually asked for help and understanding. I understand the council has its policies and procedures but not everything fits neatly into them as everyone is different and needs help with issues differently. If you could speak to Nick Moffatt to move along the specialist counselling he says he will organise that would be appreciated. 89 of 160 I will continue to keep in touch with Glynis and update as and when I can.

[283]The Stage 2 meeting arranged for 3 August 2022 [377] did not in fact go ahead that day. Ms Muhammad was prompt in putting OH in touch with the Claimant’s own treating professionals but that process did take some time [390 – 387]. 11 August 2022 – Stage 2 Meeting

[284]The Stage 2 meeting took place on 11 August 2022 and was chaired by Mr O’Halloran (Fraud Manager) because Mr Hyatt was unavailable. He issued his outcome letter on 22 August 2022 saying [394-397]: I am writing to summarise the main points of Stage 2 meeting at which took place on the 11 August 22, at 12 o’clock via Teams. In attendance was Mark O’Halloran, Fraud Manager and Farah Muhammad from HR to support procedurally. You did not attend, nor did your union representative. You have now been absent form work due to ill health since 7 February 22. A stage 1 meeting took place on the 6 May 22, of which you were unable to attend due to your ill health, but your union representative attended on your behalf and an outcome letter was issued to you on the 9 May 22. A follow up Occupational Health appointment was booked and attended by you on the 8 June 22, so that we would be able to have up to date information regarding your health and be able to engage with you and discuss the occupational health report with you and any reasonable adjustments recommended to support your return to work. Once the report was issued a stage 2 meeting was arranged and we were engaged with by your union rep requesting that your line manager David Gill- Collis does not chair the meeting as you felt that he was a trigger to your anxiety, we therefore made an adjustment rescheduling the meeting, which was to be chaired instead by Triborough Head of Fraud, Andy Hyatt. Unfortunately, Andy was unable to attend, and the meeting was therefore chaired by Mark O’Halloran, Fraud Manager. You were given the right to be accompanied to this meeting as per procedure. During communication with you prior to the stage 2 meeting you confirmed that you were too unwell to attend and asked that HR forward on the details of specialists you are working with for Occupational Health to engage with, this information was forwarded on and they have since written to you on the 16 August 22 confirming that they are awaiting further information from you but are willing to arrange a further appointment with you if necessary. You also confirmed that specialist counselling was being sort via the council’s health and wellbeing team and you are waiting for it to commence, as well and counselling from the NHS. 90 of 160 As you confirmed that you were unable to attend, it was confirmed with you in writing that ‘the purpose of the meeting was to discuss your continued absence, Dr Sherry's OH report dated 8 June 22 and how we can support your return to work. That it is understood that you are not up to attending the meeting in person, therefore the meeting would be rearranged to be held via Teams. That we would welcome a written submission from you that we can consider, or for your union rep to attend on your behalf. That we need to hear from you about how we may best support your phased return to work. It was also noted from Dr Sherry's report dated the 8 June 22 that she recommended a meeting and that a stress risk assessment is undertaken, so we can explore with you what your current stressors are and can consider how we may be able to mitigate these /make reasonable adjustments.’ In your absence and without any submitted information from you to enable further discussion, the Occupational Health report was discussed taking account of the information given and recommendations from Occupational health that you:- - have been prescribed medication and have received therapy and counselling, but further therapy has been advised. That your symptoms are reducing, but you remain extremely anxious particularly about your situation at work where you feel misunderstood and unsupported. - That a recommendation of a case conference, which we would like to book so that management, Hr and you can meet to discuss your health further and discuss as recommended by Occupational Health a supportive phased return to work plan and explore the options available to the business to support your return to work - That occupational health do not feel that you are permanently incapable of undertaking the duties of your role and undertake a stress risk assessment to identify stressors would be beneficial so that the organisation can explore what can be done to mitigate these stresses At this time we need to comply with the Council’s sickness absence procedures and therefore have issued you with a second stage warning as you have now been absent from work since 7th February 22 and your continued absence cannot be sustained. The procedure states that if you are not able to return to work within one month of the date of this letter, then your case will be taken to the Director to make a decision about your continued employment with the Council. Please accept this letter as written confirmation of the stage 2 warning. Please also note as per the policy on your return to work following a stage 2 warning, you will be placed on a six-month review period, if you are unable to sustain an acceptable level of attendance your case may be taken to the Director for consideration. Given you remain anxious about your situation and feel misunderstood a further Teams meeting will be arranged for 3 weeks’ time. The purpose 91 of 160 of this meeting will be to undertake the stress risk assessment and explore a supportive phased return to work. However, if you are still unable to attend or agree a return to work date at this meeting then I’m afraid we will need to progress to a stage 3 hearing. It is, therefore, important that you engage with this process. I enclose a copy of the sickness absence procedure for your information. If you have any queries about any of the above, please do not hesitate to contact me. I look forward to hearing from you and your eventual return to work LOI 7.1.11 Harassment LOI 4.3.8. Direct Disability Discrimination LOI 5.1.9 Arising from Disability Discrimination

[285]The Claimant complained that by holding the Stage 2 meeting on 11 August 2022 R1 failed to pause the formal process to allow the Claimant to feel better and held a meeting that she was not able to attend either herself or through her representative. The Claimant complained that this amounted to disability harassment, direct disability discrimination, and unlawful discrimination arising from disability. Notwithstanding that the Claimant did not have a disability at this time, we make the following further findings:

[286]LOI 7.1.11 Harassment: Whist this was unwanted conduct it was not conduct sufficiently related to the Claimant’s impairments. Further, the meeting was not held/the decision not to delay it was not taken with the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her. If it had that effect it was not in the circumstances reasonable for it to have done so. R1 could have delayed but the Claimant’s absence was already beyond the normal timescales under the policy for the meeting and it was reasonable in the circumstances to hold the meeting. R1 legitimately wanted to speak to the Claimant to understand the situation. The meeting would have been helpful for R1 to understand the Claimant’s situation and a useful opportunity for R1 to explain its position to the Claimant. Whilst being part of a formal process, the central focus of the meeting was to explore ways of getting the Claimant back to work. R1 had already delayed the meeting and Ms Nield simply said the Claimant was not able to attend.

[287]LOI 4.3.8. Direct Disability Discrimination: This was not less favourable treatment of the Claimant. There is no evidence that had the Claimant not had her impairment a different decision would have been taken or that the meeting would have been postponed.

[288]LOI 5.1.9 Arising from Disability Discrimination: The Claimant clearly did not want the meeting to go ahead but the fact that it was not delayed did not amount to unfavourable treatment of the Claimant in circumstances where the aim of the meeting was to get the Claimant back to work. Even if it was unfavourable treatment, the meeting was not held/there was no failure to postpone the meeting because of a Something. R1 went ahead with the meeting because it wanted to take things forward under its process to effectively manage its 92 of 160 resources. This was proportionate and justified in the circumstances given R1’s necessary and legitimate aims of managing public finances and staff resources to meet the needs of its service users. 50% sick pay LOI 6.2.5 Reasonable Adjustments

[289]On or about 7 August 2022 the Claimant’s sick pay reduced from full pay to half pay in accordance with R1’s policy. R1 accepted, and this clearly was the application of a PCP.

[290]The Claimant alleged that the substantial disadvantage caused to her by this PCP was that she was not receiving full pay and had to sell her house as a consequence. Even had the Claimant had a disability at this time, we do not accept that the PCP pointed to by the Claimant caused her substantial disadvantage in comparison to persons who do not have her impairment. Someone else on long term sick leave who did not have the Claimant’s impairment would also have had their sick pay reduced to 50% of pay in the same way as the Claimant. R1 could have considered extended the period during which the Claimant was paid full sick pay but in the circumstances that was not an adjustment that it could reasonably have been expected to make. R1 has a duty to manage public finances and money spent on funding the Claimant’s sick pay is money that could not then have been spent furthering the needs of the public for the services that R1 must provide. There was no evidence at the time that, for example, a short or finite extension of full pay might help the Claimant return relatively quickly to work.

[291]On 31 August 2022 the Claimant was signed off with anxiety until 26 October 2022 [398]. On 16 September 2022 Ms Muhammad sent Ms Nield the following email [400]: As per our last discussion a stage 2 outcome letter was sent out to Glynis last month, issuing a stage 2 warning that she should be back to work within the month. As we have been unable to engage with Glynis re a meeting to discuss the OHU report, concerns she has raised, the stress risk assessment, reasonable adjustments and a proposed return to work date. Hr would like to offer a meeting to her, at which you can be present, the meeting will have no management involvement and I think it may be best for Glynis that I am not the HR colleague that leads on the meeting, at that meeting my HR colleague can explain the sickness absence procedure how the process will be managed and what impact her continued absence may have and how best we can support her to return to work. OHU have stated that they are happy to engage with her specialists, if they have not done so already but as Glynis has stated she is too unwell to engage in a case conference we need to move forwards and try and encourage Glynis’s supported return to the work place. Could I ask that you let Glynis know this is what the business would like to offer and I will follow up with an email to her early next week, if we are unable to meet and engage the next stage of the procedure is a Stage 3 93 of 160 sickness absence hearing. You mentioned that Glynis solicitors had engaged with the council, I have asked and to date my understanding is nothing has yet been received. Please let me know if you would like to discuss this matter further.

[292]This was a sensible and proactive initiative on the part of R1. It was acknowledged by Ms Nield who indicated that she would come back to Ms Muhammad on the proposal.

[293]At the end of September 2022 the Claimant instructed a solicitor, Ms Ricci, who wrote to Mr Hyatt on 26 September 2022 [403] to say that the Claimant’s anxiety condition was severe. She asked that all correspondence intended for the Claimant be addressed to Ms Ricci until further notice in order to “accommodate [the Claimant’s] disability”. Ms Ricci asserted that the Claimant was disabled but did not explain why the Claimant’s impairment would be classed as long term and R1 was entitled to rely on the advice it had received from OH.

[294]Mr Hyatt was on leave when Ms Ricci sent her e-mail but Ms Ricci would have received his out of office message giving details of other colleagues who could assist in his absence. Owing to the fact that Mr Hyatt was away, he was not able to take Ms Ricci’s instructions forward and, contrary to her request, an email was sent directly to the Claimant by Ms S Corbin (HR consultant) on 30 September 2022 [405]. The purpose of Ms Corbin’s email was to invite the Claimant to a meeting on 7 October 2022 via MS Teams. Her e-mail attached a letter which explained the purpose of the meeting in line within the proposal made by Ms Muhammad on 16 September 2022 [406] and it was a helpful letter. The fact that the Claimant did not take this offer of a meeting up reflects badly on the Claimant. This is particularly so given the given the complaints that the Claimant levels at R1 as regards the Claimant wanting informality.

[295]On 28 September 2022 Ms Muhammad sent Mr Gill-Collis the following email by way of update [404]: Apologies due to being off sick last week, I haven't managed to get the letter out to her but her union rep has been informed and has been asked by Glynis to stop representing her, apparently a lawyers is and will be writing to me or Mark soon. I will be sending the letter out to invite her in for the end of next week and where she doesn’t attend we will be moving forwards with a Stage 3 hearing as per policy, which will take a bit of preparation. Sony for the delay, going to CC Andy in to keep him abreast also but this will move forwards asap.”. Ms Ricci’s email had not reached Ms Muhammad because Mr Hyatt was away.

[296]On 3 October 2022 Ms Ricci wrote to Mr Hyatt again [402] reiterating her request that correspondence be sent to her so that she could support the Claimant. Her correspondence ignored the fact that Mr Hyatt had been away, that he had set his out of office, that the Claimant had told R1 that Ms Nield was no longer her contact point. Ms Ricci also unfairly criticised R1 for the fact that Ms Corbin’s correspondence had been sent directly to the Claimant. Whilst Ms Ricci may have been acting on the Claimant’s instructions, she included comments which 94 of 160 were unreasonable and failed to take into account what had happened:296.1 suggesting that R1 had impacted the Claimant with “insensitive and frankly appalling treatment”;

296.2 she (Ms Ricci) was “appalled that her request had not been take into consideration”; and

296.3 accusing R1 of “persistent and insensitive correspondence”.

[297]Mr Hyatt’s response of 4 October 2022 was, by contrast, moderate and reasonable. He said [401]: “I have just returned from leave, having been away since 22nd September 2022. So sorry for the delayed reply. It appears unfortunate that correspondence was sent directly to Glynis against your wishes. However, your email would have arrived while I was on leave, although my email account is set to generate an “out of office” response. It also provides a list of colleagues (and contact details) who could have assisted you in my absence. Did you contact any of those people to discuss your request while I was away, and if so, who? I can then endeavour to investigate this matter accordingly. Finally, regarding your request for sight of our policy, I will organise this forthwith but in the meantime, please provide me with your client’s authority that she has instructed Hanne & Co to act on her behalf.” Mr Hyatt understandably wanted proper authority to correspond through Ms Ricci.

[298]At CWS158 the Claimant complained that on the 6 October 2022 she received a large envelope from R1 which she said she was unable to open due to the severe anxiety it triggered. She said it led to an intense anxiety episode. We find that what the Claimant received in the post was a copy of Ms Corbin’s helpful letter and the copy of the sickness absence procedure that Ms Corbin had she said she would enclose [405-407].

[299]The following correspondence followed: Hyatt to Ricci 12 October 2022 13:37 [408] We do not consider that communication directly via lawyers is conducive to facilitating open and transparent working relationships with employees, nor do we agree that your request to do so is reasonable. Glynis remains an employee of the Council so it’s entirely appropriate as her employer that we continue to contact her directly regarding her sickness absence. To date, Glynis has not engaged with our requests to meet even when we have offered to make adjustments. For example, I am aware that Glynis finds communication with her line manager David Gill-Collis stressful so we offered Mark O’Halloran, and then myself, to be her point of contact. We do not agree with your assertion that our communication to date has been insensitive or unnecessary. You will be aware that Glynis has now been absent from work since 08 February 22 and as a good employer and in accordance with our sickness absence processes we intend to meet with her to discuss how 95 of 160 we might support her back to work, and outline the implications of her not returning within a reasonable timescale. I appreciate that Glynis is still unwell but I’m afraid that her continued absence is having a detrimental effect on the team and the service that cannot be sustained indefinitely. Therefore, I will shortly be writing to Glynis inviting her to a stage 3 sickness hearing. As a good employer we are, of course open to making reasonable adjustments to assist Glynis’s attendance.

[300]We consider this to have been a reasonable response to Ms Ricci and it was an unusual request of the Claimant to correspond with her lawyer. Ms Ricci replied [409]: Thank you for your email and I am disappointed that this is the approach that the employer is taking. My client’s request is reasonable. Whilst the employer of course has the right to communicate with their employee, my client’s request that you do so through me to assist her to process the information that is forthcoming in a gentler manner whilst she is signed off sick, is a reasonable request for a reasonable adjustment due to her disability. Your refusal to do so, with no real justification or explanation, other than that this is your policy and preference, in my view, simply indicates the insensitivity with which your policies are applied and is discriminatory. Given that my client suffers from a serious mental health condition your refusal to make this reasonable adjustment is shocking but is in line with what my client reports has been unfortunately her experience to date. We note your position and will update Ms Moore on this.

[301]Mr Hyatt replied [411] on 18 October 2022: We are concerned by the tone of your communication and your move to inflammatory language. Your intervention has created contention when we are merely trying to engage with Glynis to discuss work place matters as all employers are expected to do. We therefore feel that communicating via you is not conducive to a good working relationship with Glynis and will inevitably impact on Glynis financially due to legal costs when we have not received any medical evidence to suggest that this is a recommended strategy. If you could provide medical evidence or at the very least a letter from Glynis herself confirming that she considers this is necessary then we will proceed on the basis of your request. 12 October 2022 – alleged threat of dismissal LOI 5.1.10 and LOI 7.1.15

[302]In the circumstances we find that this was a reasonable response from Mr Hyatt. 96 of 160 The Claimant complains that Mr Hyatt’s correspondence of 12 October 2022 ‘threatened the Claimant with dismissal’. It plainly did not do so. The Claimant nonetheless complained that it amounted to discrimination arising from disability LOI 5.1.10 and harassment LOI 7.1.15. The Claimant was not at this point in time disabled but we make the following findings.

[303]Harassment 7.1.15: We accept that the email from Mr Hyatt was not wanted by the Claimant but it did not sufficiently relate to the Claimant’s impairments to amount to disability harassment and was not sent with the purpose of violating circumstances reasonable for it to have done so.

[304]Arising from 5.1.10: Mr Hyatt’s email was not unfavourable treatment of the Claimant. It was simply pointing out the facts and the circumstances. If it was unfavourable treatment, of the Somethings, it could only have been said to have been done because of the Claimant’s sickness absence. However, it was an email that was proportionate and justified in the circumstances given R1’s need to manage the Claimant’s sickness absence, manage public finances and manage staff resources to meet the needs of its service users (all of which are legitimate aims).

[305]On 2 November 2022 Mr Hyatt then wrote directly to the Claimant saying as follows [417]: “This is just to let you know that we have requested an up to date Occupational Health appointment, and details should be sent to you in due course. Separately, I note that your most recent medical certificate was sent to Mark O'Halloran. I can confirm that this was received, but since then, Mark has left RBKC employment. In view of this change, please forward any future correspondence to myself, or direct to HR.” It is not asserted that Mr Hyatt harassed against the Claimant by sending this correspondence directly to her.

[306]Mr Hyatt’s OH referral [415-416] included a request for advice as to whether the Claimant would be classed as disabled under the Equality Act 2010 and to ask all the other relevant questions. It also said: *URGENT REQUEST* This is a follow-up referral to my referral 9 May 22. Glynis has now been off on long term absence since 7 February 22. Her GP has signed her off with anxiety issues until mid-December and has mentioned in his notes history of PTSD and post-natal factors. He has started her on a course of anti-anxiety medication and has advised Glynis to seek counselling. I believe that you have already seen Glynis twice since she went off sick, but we have been advised by HR that it would be best practice that we re-refer her to OHU for an updated report. IF FURTHER ADVICE IS REQUIRED PLEASE ADD BELOW; Please advise how Glynis can be supported by us with a view of helping 97 of 160 her return to work.

[307]On 8 November 2022 Ms Muhammad was in contact with the occupational health team with respect to the occupational health doctor speaking to the specialist treating the Claimant. This had still yet to take place and the occupational health recommendation was that a consultation take place between the Claimant and Dr Sherry (as the person who was most familiar with the Claimant’s case). However, this gave rise to some delay because Dr Sherry only worked twice a month [419-420].

[308]On the same day the Claimant wrote to Mr Hyatt as follows [421]: I understand that you needed confirmation from me that I would like for you to correspond with my lawyer, Justina Ricci, In relation to my employment situation. For reasons of which you are aware, I would like for you to direct all the communication In relation to my sickness absence to her please. I make this temporary request on the basis that I consider this to be a necessary reasonable adjustment [She made a wide ranging data subject access request which we do not need to recite here]. I understand that you have a month to respond to this request. In the meantime, I would be grateful If you could please notify her of the most recent communication you have sent to me by post as I struggled to open it. Please could you forward her a copy together with all the relative policies and documents.

[309]At the end of October 2022 the Claimant took her son to New Zealand so that the Claimant’s mother could look after him (the Claimant’s mother being concerned that the Claimant was not well enough to do so herself). A relation of the Claimant died during this period meaning that the Claimant was in New Zealand for around a month, rather than the two weeks she had intended. She returned to the UK without her son in late November (the Claimant could not remember in evidence the precise timings).

[310]On 8 November 2022 the Claimant was therefore in New Zealand and could not have received postal correspondence. The same day Mr Hyatt replied to confirm that R1 would be happy to correspond with Ms Ricci and send documentation on to her. He noted that R1 had referred the Claimant to OH for an updated report. The OH team then contacted the Claimant by email (cc’ing Mr Gill-Collis) to invite her to a consultation with Dr Sherry on 25 November 2022 [424]. The Claimant had, on 17 October 2022, been signed off as unfit to work until 19 December 2022 with anxiety disorder [413]. 9 December 2022 - Third OH report

[311]On 9 December 2022 Dr Sherry issued the third OH report in respect of the Claimant and advised [427-429]: 98 of 160 I had an Occupational Health Teams consultation with Ms Moore on 25th November 2022 at which time I was able to refer to your management referral form as well as previous referrals, OH notes and reports and letter from CBT therapist dated 1st August 2022 which suggested she would benefit from further counselling. Ms Moore confirmed she has worked with the Council for 14years and been in her current role as a full time Investigations Officer (Corporate Fraud Investigator) for the last three years. She has been off work since 7th February initially due to a combination of factors as outlined in my previous report and on the background of PTSD. I understand the PTSD occurred following an attack whilst working as an enforcement officer. She told me that work arranged for her to be seen by a psychiatrist and she received treatment which she found most helpful. Ms Moore symptoms including heightened anxiety and a stammer which are most pronounced when she has to engage with RBKC. She feels unsupported, misunderstood and unable to return to work and feels no longer able to deal with communications from work. She informed me that she has instructed a lawyer to act on her behalf and that ACAS is involved in trying to resolve the situation. Today she expressed a wish for a mutually agreed strategy to exit from her role. This would allow her to have a period of time to concentrate on her recovery and spend time with her young son and family in New Zealand.• Are there any underlying medical conditions affecting this individual's performance or attendance at work? heightened anxiety currently as a result of the work situation being unresolved. Her symptoms have resulted in some physical symptoms include developing a stammer.

• Is she currently fit to carry out the duties outlined in the job description, if not what can I, the manager, do to support the employee? work. It is probable her symptoms will continue whilst the situation at work remains unresolved. It would be helpful if a mutually agreeable way forward can be agreed.

• Are there any short-term/permanent adjustments to the work tasks or environment that would help facilitate rehabilitation or an early return to work? My opinion is that a way forward should be mutually agreed. I do not 99 of 160 anticipate she will be able to return to work without further treatment. Is the health problem likely to recur or affect future attendance? attendance will be reduced.

• Do the disability discrimination provisions of the Equality Act 2010 (previously the DDA) apply? This is a legal not medical decision, but my opinion is that it would apply.

• Is temporary or permanent redeployment advisable on medical If the decision is that Ms Moore is to return to RBKC then redeployment could be helpful.

• Is the employee likely to be permanently incapable of undertaking the duties of their role and other/ gainful employment (requiring My opinion is that Ms Moore is not permanently incapable of gainful Not fit to work Review – On request / following receipt of specialist report

[312]It is with this OH report that R1 says it had knowledge that the Claimant was disabled under the Equality Act by virtue of post traumatic stress disorder and anxiety. We accept that it was at this point that it was clear that the Claimant’s impairment of anxiety was likely to be long term. The substantial adverse effects of the Claimant’s anxiety on her day to day activities had not lasted 12 months by this point and so the condition had not been long term. However, those effects had lasted 10 months by this time and we consider it is reasonable to conclude that by this point, based on this report, the substantial adverse effect was going to be long term. However, as regards PTSD we note that it is only on 30 March 2023 that OH comment to R1 that PTSD is a current condition saying: “I had an Occupational Health Teams consultation with Ms Moore on 29th March 2023 at which time was able to refer to your management referral form as well as previous referrals, OH notes and including a report following a psychiatric assessment on 8th March 2023 which confirmed a diagnosis anxiety, depression and symptoms PTSD as a result of witnessing the resuscitation of her son.” [457]. Until this time PTSD had been referred to by OH as an historic condition (albeit we acknowledge that the Claimant/Ms Nield reported PTSD as a symptom at earlier dates [e.g. 357]). We have no record of having been referred to the document at [518-523] either in witness statements or in our record of the hearing and we have not taken it into account in our decision.

[313]We nonetheless reflected on whether our judgment might be different if: 100 of 160313.1 the Claimant’s anxiety and PTSD had met the definition of disability (in particular the long term element) from an earlier date, such as February 2022 when she first started sick leave; and

313.2 R1 had known that she had those disabilities at that time; we found that we would have reached the same conclusions.

[314]We note that the Claimant was still not telling the OH specialist what she needed to resolve the ‘situation at work’. It is clear, for example from the messages that the Claimant exchanged with her mother, that the Claimant had turned against R1 as early as January or February 2022. Since that time the Claimant had felt unfairly treated by R1 (unjustly in our view). The Claimant had in early 2022 mentioned selling her house and going to New Zealand [332] and had told Mr Gill-Collis that her mother had suggested it at that time [296] and by October 2022 her son was in New Zealand. OH would not have been able to release the report until the Claimant confirmed that she was happy with it and we do not consider it probable that OH would have suggested a negotiated exit or mentioned it in the report without the Claimant asking OH to do so. We conclude that it was the Claimant who was proposing “a mutually agreed exit strategy from her role [to] allow her to have a period of time to concentrate on her recovery and spend time with her young son and family in New Zealand”. We find that that Claimant by November 2022 had decided that she wanted to leave R1’s employment. As well as not telling OH, the Claimant was not telling R1 how R1 could meaningfully help her recover her health and return to work (other than of course her requests not to follow a formal process etc). The Claimant’s only tangible suggestion was to propose a mutually agreed termination of her employment or ‘exit strategy’. At this time the Claimant remained on half pay and she was not asking for redeployment. January 2023

[315]Having received the OH report Mr Gill-Collis then prepared a management report for consideration by a panel who would ultimately determine the final stage of R1’s sickness absence procedure. He completed the 67 page report (including appendices) on 20 January 2023 [433-442 (excluding appendices)] “the Management Case”. The Management Case was well composed. It summarised the background, included a timeline of events and set out a compelling explanation of the impact the Claimant’s absence had had on R1 and its ability to investigate and prosecute fraud, the significant financial implications of that and the pressures put on other team members . We find that the strength of Mr Gill-Collis’ report was emphasised by his evidence in cross-examination. The financial costs associated with the Claimant not being there to do her job were estimated at £262,000. This did not factor in the more direct costs associated with R1 employing the Claimant.

[316]Around 6 February 2023, the Claimant had exhausted her sick pay. In this regard she makes complaints of indirect disability discrimination [LOI 8.1.4.3] and failure to make reasonable adjustments [LOI 6.2.5]. She makes further similar allegations as complaints of direct disability discrimination [LOI 4.3.9], discrimination arising from disability [LOI 5.1.11] and disability harassment [LOI 101 of 160 7.1.16] but here also includes complaints of failure in January 2023 to consider whether ill health retirement was suitable. In this respect we find:

[317]Indirect Disability Discrimination 8.1.4.3: R1 did have a PCP that after 12 months an employee’s sick pay would reduce to nil unless it exercised a discretion to extend sick pay. R1 applied this PCP to the Claimant and would have applied it to persons with whom the Claimant did not share her disability. However, the PCP did not put those with whom the Claiamnt shared her disability (i.e. those with her mental impairment), at a particular disadvantage when compared with persons whom did not. The disadvantage to the Claimant of dropping to nil pay was the same as for the comparator group. Even if there was a particular disadvantage to those in the Claimant’s position (e.g. because financial hardship might be said to hit those with a mental impairment harder – which we do not accept was evidenced), in the circumstances the PCP was a proportionate means of achieving R1’s legitimate aims. There was no prospect of the Claimant coming back to work at any foreseeable point and the Claimant by this time appeared to want to negotiate a mutual termination of her employment. As we have said, R1 has a duty to manage public finances and money spent on funding the Claimant’s sick pay would have been money that could not then have been spent furthering the needs of the public for the services that R1 must provide.

[318]Reasonable Adjustments LOI 6.2.5: Our findings in respect of the PCP apply equally to the complaint of failure to make reasonable adjustments. As regards substantial disadvantage, again the Claimant complained that she was not receiving pay and had to sell her house. We do not consider that the Claimant suffered a substantial disadvantage compared to someone who was not disabled but who was also on long term sick leave for more than a year and who also therefore received no pay. R1 could have considered and/or extended the sick pay period for the Claimant but it was under no legal obligation to do so and it would not have been a reasonable step for R1 to take in the circumstances (including those set out in respect of the indirect discrimination complaint).

[319]Direct disability discrimination [LOI 4.3.9]:

[320]The Claimant says that because she was disabled she was subjected to less favourable treatment in January 2023 when R1 failed to extend sick pay or allegedly failed to consider whether:320.1 it should extended sick pay; and/or

320.2 ill health retirement was suitable.

[321]There is no evidence that R1 subjected the Claimant to less favourable treatment as alleged. There is no evidence that she was treated less favourably than Anne Lord or a hypothetical comparator. There was no reasonable basis for extending the Claimant’s sick pay and R1 would not have extended sick pay for a non-disabled employee in the same circumstances. Similarly, not considering ill heath retirement was not a failure at this stage given what R1 had been told by the Claimant and OH at this time and if it was a failure there is no evidence that the failure would not also have applied to a non-disabled 102 of 160 employee in the same circumstances and it was not because of the Claimant’s disability.

[322]Discrimination arising from disability [LOI 5.1.11]:

[323]The Claimant makes the same complaint as addressed in respect of LOI 4.3.9 but in the alternative says that this amounted to unfavourable treatment because of the Somethings. We accept that the alleged failures in respect of sick pay could amount to unfavourable treatment but there is no evidence to suggest and we do not accept that the failures were because of any of the alleged Somethings. In any event, not extending sick pay was a proportionate means of achieving a legitimate aim as we explain in this judgment. We refer to our findings on LOI 4.3.9 with respect to the alleged failure to consider ill health retirement. If it was a failure then we find that it was not because of any of the Somethings, it was because R1 was focusing on whether the Claimant might be able to come back to work and how to achieve that.

[324]Disability harassment [LOI 7.1.16]:

[325]The Claimant complains that she was subjected to unwanted conduct that had the purpose or effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her in that in January 2023 R1 failed to extend sick pay or consider whether it should be extended and/or whether ill health retirement was suitable. As regards the sick pay complaints this conduct, whilst unwanted, did not relate to disability and, even if it was, the failure was not with the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her. If it had that effect it was not in the circumstances reasonable for it to have done so. We refer to our findings on LOI 4.3.9 with respect to the alleged failure to consider ill health retirement. If this was a failure it is not clear that it amounted to unwanted conduct. If it was unwanted conduct it is not clear that it related to disability and even if it was related to disability, it was not with the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her. If it had that effect it was not in the circumstances reasonable for it to have done so. 23 February 2023 Invite to stage 3 absence management meeting 443-444

[326]On 23 February 2023 Mr Hughes invited the Claimant to a hearing under the third and final stage of R1’s sickness absence procedure [445]. The meeting was due to take place on 6 March 2023. He made clear that Mr Hyatt and Ms Muhammad would be at the hearing and he attached the Management Case. This letter was sent by email to the Claimant with Ms Ricci on copy. It warned the Claimant that “a decision could be taken by the panel about [the Claimant’s] continued employment”.

[327]Disability harassment LOI 7.1.17: The Claimant complained that Mr Hyatt emailing the Claimant directly despite her request to communicate through her solicitor amounted to disability harassment. We find that it was unwanted conduct. However, it did not relate sufficiently to the Claimant’s disability and even if we are wrong on that Mr Hyatt did not send the correspondence to the Claimant with the purpose of violating the Claimant’s dignity or creating an 103 of 160 intimidating, hostile, degrading, humiliating or offensive environment for her. If it had that effect it was not in the circumstances reasonable for it to have done so, even though the Claimant had asked not to be contacted directly. Ultimately the Claimant’s representative would have had to have sent the correspondence to the Claimant or advised her of its content (taking into account that she might have tried to soften the message or give her advance warning of its arrival). It was an important letter and it was understandable that R1 wanted to make sure that the Claimant got it without delay and without reliance on Ms Ricci passing it on promptly.

[328]On 3 March 2023 Mr Hughes wrote to Ms Ricci saying [445]: “I understand we have been instructed by you on behalf of your client, Glynis Moore, to only make contact via you as a reasonable adjustment and you were previously sent the invitation for next Monday’s hearing. As of today, we have not had conﬁrmation of attendance, please can you conﬁrm whether Glynis or a representative will be in attendance.”. 6 March 2023 – Stage 3 Meeting

[329]On or about 6 March 2023 Ms Muhammad, Mr Hughes and Mr Hyatt had sight of the following letter submitted by the Claimant and written by a community psychiatric nurse: I assessed this lady on 27/02/23 and I found her to be severely anxious with occasional suicidal ideation triggered by work related issues. Miss Moore has a diagnosis of generalised anxiety disorder since 2022 which has deteriorated even further during the last year and due to the subsequent work situation being unresolved. Ms Moore has a broad history of PTSD and it should be noted that she is presenting with worsening anxiety and a stammering disorder since work declined her working from home a year after her baby was born (note premature baby and concerned about giving her baby CV19). It Is highly unlikely that she will be able to work due to her current mental state and her symptoms will worsen whilst the situation at work remains unresolved. She has now been booked to see a doctor for further assessment with our Team to devise a management and treatment plan. Kindly consider a collaborate approach when making a decision, to avoid any negative impact it will have on her mental state in the long term if possible.

[330]The implication of the letter was that a return to work might be possible if ‘the situation at work’ could be resolved but at the same time, and yet again, it did not make clear what the Claimant saw as ‘ the work place situation’ or make any suggestions as to what R1 might need to do to ‘resolve the work place situation’. It did not, for example, ask R1 to consider redeployment to a different team. It made clear that, unless the workplace situation was resolved, the Claimant’s symptoms would worsen. 104 of 160

[331]On the same day, 6 March 2023, the stage 3 sickness management meeting was convened and the Claimant attended. However, because the Claimant was crying and stuttering at the meeting, R1 rightly decided to postpone the meeting. The Claimant complained that at the meeting Ms Muhammad told the Claimant to ‘pull herself together’ when Claimant started crying and stuttering. The Claimant said that this conduct amounted to direct disability discrimination [LOI 4.3.10], discrimination arising from disability [LOI 5.1.12] and disability harassment [LOI 7.1.18]. In respect of those complaints we find as follows:

[332]We find on the balance of probabilities that Ms Muhammad did not make this comment. We have reached this conclusion on the clear and persuasive evidence of Ms Muhammad at the hearing, which was corroborated by Mr Hyatt’s evidence, and the following:332.1 We accept R1’s submission that the Claimant’s position changed at the hearing on what she alleged that Ms Muhammad actually said in that at the hearing the Claimant said that Ms Muhammad used the words ‘get herself together’ (which is not as pejorative and is not a command in the way that using the words ‘pull yourself together’ would be).

332.2 This complaint was not raised until 18 May 2023, when it was mentioned by Ricci (who had not been at the 6 March 2023 meeting);

332.3 The Claimant herself said on 19 July 2022 in an email to Mr Moffatt “I’m terrified I’m going to lose my job after 15 years because as others would think I can’t pull myself together”. The phrase is therefore one that the Claimant herself uses.

332.4 At the meeting on 6 March 2023 the Claimant was in an emotional state and we find that she is mistaken in her recollection of what was said to her.

332.5 We accept the explanation given by Ms Muhammad at in her witness statement [FMWS34] and we quote in particular her comments: […] I had the laptop in front of me but the speaker was on so my colleagues in the room could hear the interaction. Glynis did not put her camera on, Glynis sounded very distressed and was stammering. I asked her if Justina was going to attend to support her. I said that I was going to talk to the panel, and I would like to put her on mute for a minute. The people in the room had all heard how distressed Glynis was. I said that I didn’t think we could proceed but asked their views. David was clear that we should reschedule to a later date when Glynis could arrange for someone to support her. I went back on the call and I confirmed with Glynis that was our proposal and she said she was happy with that. She thanked me and the meeting ended. I understand that Glynis has claimed that I told her to pull herself together. I am 100% certain that I didn’t say anything like that. I found the very short meeting really difficult as she was so emotional and that made me upset. It was my instinct that the meeting should be stopped as she was not in a position to engage. I was sitting in a room with John O Rourke, Head of HR and there is no way I would have said anything so unreasonable in 105 of 160 front of him.

[333]As regards the specific complaints we find that the Claimant was did not suffer the direct disability discrimination [LOI 4.3.10], discrimination arising from disability [LOI 5.1.12] or disability harassment [LOI 7.1.18] alleged because the words that it is alleged were used towards her were not in fact used. 6 March 2023 4th OH referral 449-451

[334]On 6 March 2023 R1 promptly sought further OH advice making a referral that included the following: *URGENT REQUEST* This is a follow-up referral to previous referrals. Glynis has now been off on long term absence since 7 February 22. Her GP has signed her off with anxiety issues until late April 23 with anxiety issues. Glynis attended a management hearing meeting today and was clearly stressed by the proceedings. I believe that only last week she sent to the OHU a letter from her Community Psychiatric Nurse (copy attached) in which it was mention that Glynis is “severely anxious with occasional suicidal ideation triggered by work related issues”. In view of this I’d be grateful if you could arrange for an further meeting with Glynis to see if there is any help we can provide as her employer. IF FURTHER ADVICE IS REQUIRED PLEASE ADD BELOW; Please advise how (if) Glynis can be supported by us with a view of helping her return to work.

[335]The referral asked all the relevant questions including “Is s/he fit to attend a management meeting, disciplinary hearing, sickness hearing? If not, please provide a reason.”

[336]On 7 March 2023 Ms Muhammad sent the Claimant and Ms Ricci an email in respect of a reconvened hearing to be held on 4 April 2023. Mr Hughes was copied on the email but not Mr Gill-Collis. Neither the Claimant nor Ms Ricci had complained about the meeting invite of 23 February 2023 having been sent directly to the Claimant and copied to Ms Ricci. The Claimant says that this constituted an act of harassment on 7 March 2023 [LOI 7.1.19]. On 31 March 2023 Ms Muhammad sent a further email to the Claimant and Ms Ricci [453] (without any one on copy) attaching the MS Teams joining details for the meeting planned for 4 April 2023. The Claimant makes no complaint about this email. Whilst the Claimant did not want Ms Muhammad to email her directly and had asked for communications to be sent via Ms Ricci, the email did not relate sufficiently to the Claimant’s disability and, in any event, Ms Muhammad did not send the correspondence directly to the Claimant with the purpose of violating 106 of 160 circumstances reasonable for it to have done so given the circumstances we have described. As applicable we note our comments in respect the complaint at LOI 7.1.17. 3 April 2023 Fourth OH report received 455-459

[337]On 3 April 2023 R1 received the fourth OH report which read [455-459]: I had an Occupational Health Teams consultation with Ms Moore on 29th March 2023 at which time I was able to refer to your management referral form as well as previous referrals, OH notes and reports including a report following a psychiatric assessment on 8th March 2023 which confirmed a diagnosis of anxiety, depression and symptoms PTSD as a result of witnessing the resuscitation of her son. Treatment in the form of medication and therapy has been recommended. Ms Moore has been continuously off work from her role of Corporate Fraud Investigator since 7th February 2022 and her current fit note from her GP states the reason for absence is anxiety. Ms Moore symptoms including heightened anxiety and a stammer which she tells me are most pronounced when she has to engage with RBKC. She continues to feel unsupported, misunderstood and unable to return to work. She is keen to return to New Zealand to be reunited with her son who has been living there with his Grandmother since December 2022. Ms Moore continues to express a wish for a mutually agreed exit strategy so she can return to New Zealand to be with her son and focus on his as well as her own health and wellbeing as well as spend time with her family. Ms Moore tells me that she still struggles to engage with work and therefore has instructed a lawyer to act on her behalf [CONTACT DETAILS INCLUDED] Are there any underlying medical conditions affecting this individual’s performance or attendance at work? heightened anxiety. My opinion is that if the work situation can be resolved her symptoms may reduce. Is she currently fit to carry out the duties outlined in the job description, if not what can I, the manager, do to support the employee? 107 of 160 work. It is probable her symptoms will continue whilst the situation at work remains unresolved. It would be helpful if a mutually agreeable way forward can be agreed. Are there any short-term/permanent adjustments to the work tasks or environment that would help facilitate rehabilitation or an early return to work? My opinion is that a way forward should be mutually agreed. I do not anticipate she will be able to return to work without further treatment. Is the health problem likely to recur or affect future attendance? attendance will be reduced. Do the disability discrimination provisions of the Equality Act 2010 (previously the DDA) apply? This is a legal not medical decision, but my opinion is that it would apply. Is temporary or permanent redeployment advisable on medical If the decision is that Ms Moore is to return to RBKC then redeployment could be helpful. Is the employee likely to be permanently incapable of undertaking the duties of their role and other/ gainful employment (requiring My opinion is that Ms Moore is not permanently incapable of gainful Is she fit to attend a management meeting, disciplinary hearing, sickness hearing, if not provide a reason. My opinion is that Ms Moore has mental capacity and therefore has capacity to instruct someone to act on her behalf. If a meeting is to take place then I suggest Ms Moore is accompanied to and supported at the meeting and she receives the agenda in advance. It may be helpful to undertake the meeting virtually. Due to her symptoms Ms Moore’s processing speed will be slower, therefore she should be allowed increased time to respond to questions and be allowed to request breaks during the meeting.

[338]We find that the OH specialist was commenting that the Claimant had a history of PTSD. This was the first occasion on which it was suggested that the Claimant’s ill health, as it was at that time, might have been contributed to by the Claimant’s experience in the birth of her son. 108 of 160

[339]Yet again we find that the Claimant did not tell OH what the workplace situation was or how she saw it being resolved. We refer to our comments on the 9 December 2022 report. Then as here, the only way in which the Claimant suggested that matters could be resolved was through a negotiated exit. It is apparent that the Claimant did not intend to come back to work for R1 but R1 was nonetheless doing its best to explore that option. The Claimant’s son remained in New Zealand and the Claimant was understandably keen to be with him and so wanted to explore what she might be able negotiate with respect to an exit package. 5 May 2023 invitation to stage 3 meeting

[340]The stage three meeting had been scheduled for 4 April 2023 but, presumably because the OH report was only received the day before it was due to take place, the meeting was postponed. A new invitation was not sent out until 5 May 2023 when Ms Muhammad [460] sent an email to the Claimant, Ms Ricci, Mr Gill-Collis, Mr Hyatt, Mr Hughes and Ms Tolhurst, inviting them to a reconvened sickness absence hearing on 18 May 2023 [460-463]. The invitation letter said: In light of you being unable to return to work for over a year now due to continued sickness absence since 7th February 2022, a stage 3 panel for Thursday 18th May 2023 at 12 o’clock. The hearing will be chaired by me David Hughes the Tri-borough Director of Audit, Fraud, Risk and Insurance, supported by Romilly Tolhurst from the Human Resources team. It is the role of the panel to make a decision about your continued employment with the Council in accordance with the Council’s Sickness Absence procedures. This meeting will be held electronically, for which a Teams invite will be sent to you in advance. Andy Hyatt, Tri Borough Head of Fraud, will present the management case supported by Farah Muhammad, HR Consultant. At the meeting, a full management review of your case will be provided by Andy Hyatt. At the hearing, the panel will consider the case by management, and you will have the opportunity to respond to the management case prior to presenting your own case and/or evidence. You may be accompanied to the meeting by either a trade union representative or a work colleague. Copies of the management evidence being presented at the reconvened hearing have already been circulated to you and have been reshared alongside this invite letter. Please ensure you provide any written submission on your behalf to me, at least 5 clear days in advance of the hearing (i.e. by 12 May 2023.) Please note that if you do not attend the hearing the hearing will be 109 of 160 heard in your absence and the outcome notified to you in writing. You should be aware that one option open to the panel is your dismissal from the Council’s service. A copy of the Council’s sickness absence procedure is again enclosed for your information.

[341]The Claimant complained that the sending of this invitation directly to her (rather than it only being sent to Ms Ricci) amounted to disability harassment [LOI 7.1.20]. A few minutes after the invitation was sent and, despite it having been sent to Ms Ricci in the first place, the Claimant sent the email on again to Ms Ricci. The Claimant had not complained about the 23 February 2023 email being sent to her or the 7 March 2023 email being sent to her and she had attempted to represent herself at the 6 March 2023 meeting. As with other related complaints we find that, whilst the Claimant did not want Ms Muhammad to email her directly and had asked for communications to be sent via Ms Ricci, the email did not relate sufficiently to the Claimant’s disability and, in any event, Ms Muhammad did not send the correspondence directly to the Claimant with the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her. If it had that effect it was not in the circumstances we have described reasonable for it to have done so. Again, as applicable, we note our comments in respect the complaint at LOI 7.1.17. 18 May 2023 stage 3 meeting

[342]Ms Ricci attended the hearing on behalf of the Claimant and we were provided with the notes of the meeting [464-468] which we accept are an accurate record of the points discussed: Stage 3 Sickness Absence Hearing minutes:18/05/23 In attendance: David Hughes (DH) – Triborough Audit risk and fraud Romilly Tolhurst(RT) – Strategic HR Manager (Advice Policy EDI) Andy Hyatt (AH)- Biborough Head of Fraud Farah Muhammad (FM) – HR Consultant Justina Ricci (JR) - Solicitor Abbreviations: GM – Glynis Moore – Corporate Investigating Officer – (Unable to attend meeting) DGC- David Gill- Collis- Fraud Manager (Not in attendance) Introductions took place. 110 of 160 JR confirmed that GM would not be in attendance due to her current health, but that she was attending to ask some questions of the management case. RT advised and clarified how the hearing would be conducted and JR’s role. RT confirmed it is not RBKC’s usual practice to allow for a solicitor to attend an internal Sickness panel hearing. The policy allows for the employees to attend with union representation or a work colleague. It was confirmed that as a reasonable adjustment JR was allowed to attend as GM’s support. Due to GM being unable to attend, as the full management case and supporting documentation had been sent to GM prior to the hearing the panel was happy to take submissions for GM. It was confirmed JR was not required to be in attendance for the whole hearing. RT confirmed that the panel would be happy to take any questions in writing that are based on management case but it wouldn’t be appropriate for management to be questioned in an internal process by a solicitor, working in the capacity of a solicitor. JR stated that she had attended to represent GM, that she is not a medical professional so can not make any submissions in regards to GM’s health or suitability to return back to the work place, or what adjustments that maybe needed to be made to facilitate her return. RT confirmed that this is fine as the panel has an up to date Occupational Health reports to consider. JR made allegations of GM being told to pull herself together by the OH advisor (DR or nurse not confirmed) JR stated, I want to make a clear distinction re the reasonable adjustment being made for me to attend but not for me to act on GM’s behalf. It was queried what adjustment the panel was actually allowing, she confirmed she had attended to hear management case and pose questions. RT reiterated, that there is nothing within the pack that has not been sited by JR or GM, that the role/ capacity in which JR was allowed to attend had been explained, that the panel are happy to hear any comments and submissions on behalf of GM, so RBKC are happy to receive these questions, postpone the hearing whilst they are being answered and then sent for on for consideration by panel. JR last comments were that GM was not afforded reasonable adjustments for this hearing, that she is not a medical professional, but GM is not in attendance due to her mental health, JR ten left. Management Case: AH presented: 111 of 160 The main body of the report was compiled by DGC, Fraud Manager, Corporate Anti-Fraud Service, and he is line manager of GM and has been managing her sickness since her first day of absence in February GM has been employed by the Council since 6 August 2007 although she only joined CAFS from 5 March 2018. Within CAFS – her job title is Corporate Investigation Officer – and her role is to investigate allegations of frauds or the misuse of public funds. Officers in this role are required to have a working knowledge of how to progress cases and work lawfully within the Criminal Justice System. To plan and conduct evidence gathering activities that involves interaction such as visits to residents, business owners or employers. Taking statements, checking property, conducting informal and formal meetings and interviews. Predominantly, GM deals with tenancy fraud cases and so a significant evidence gathering element of these types of cases requires officer to visit homes and undertake residency checks. It’s important to note that we are a shared service, and therefore GM had a caseload made up of investigations in Westminster City Council as well as Kensington & Chelsea. GM’s first day of sickness was 7 February 2022. GM went on maternity leave in June 2021. This date was a month earlier than originally planned and agreed, when her baby was premature, and she needed to be admitted for the birth. Towards the end of November 2021 GM then approached DGC, her line manager, asking if she could return early from maternity leave, and asked to come back to work on 21 December 2021. The request was agreed and GM returned on 12 December 2021 but took annual leave until 10 January 2022 and to return to work then. At this point it is worth mentioning that the second lockdown commenced in January 2021, and by the end of March the “Stay at Home” order had ended. In July 2021 CEO directed staff to return to the office at least 50% of their working week. CAFS commenced a phased return – one day per week initially from August and the two days per week from September 2021. Then on 8 December 2021 PM announced a winter “plan B” and asked people to WFH where possible. 112 of 160 This ended on 27 January 2022 CAFS decided on a semi phased return of one day per week, returning to the two day per week hybrid from Monday 7th February 2022. This has been the CAFS hybrid arrangement ever since. Just before GM was due to return to work she contacted her line manager on 6th January via a WhatApp message. Made reference to APPENDIX 4 (page 6) She advised she was booking an appointment with her GP because she was anxious and in a separate conversation (the following day 7th January 2022) with her line manager, she explained that her childcare plans had fallen through. Instead of two days per week in the office she wanted to be in the office one day per fortnight. At the same time GM approached OH on her own accord. Hybrid working following the winter Plan B “stay at home” message led to the Council announcing a return to hybrid working for staff and a return to the office from 21st January 2022. The report from OH was not received but a draft report was sent to GM and she shared this with her manager and Head of Service on 28 January 2022 Made reference to APPENDIX 13 page 23 Glynis made several changes to the draft written by OH and also provided additional information. Glynis says she can conduct her duties and was asking that she works from home and just comes into the office once a month. She wants to do this until her son is 13months (7/7/23) She explained she had no support and cannot find childcare due to her son being so young and no one is keen to assist. On 1 February 2022 Glynis was reminded that working from home was not an opportunity for childcare, and that she would need to make appropriate childcare arrangements. Made reference to APPENDIX 16 (page 38) On 7 February 2022 we again reminded GM about working from home and childcare. At this point we gave her four week to make suitable arrangements to fulfil the hybrid working (2 days per week) and agreed that during these four week she did not need to attend the office. This allowed her to concentrate on getting childcare in place. Made reference to APPENDIX 23 (page 62) GM then became uncontactable for the rest of the day. 113 of 160 On 8th February 2022 GM emailed her line manager to say “I won’t be at work. GP appointment tomorrow.” Made reference to APPENDIX 28 (page 69) On 98th February 2022 GM sent in a doctor’s certificate saying she was not fit for work until 9th March 2022. Made reference to APPENDIX 32 (page 77) GM continued to provide doctor’s certificates to say she was unfit to work. She has not engaged with HR colleagues or myself as the Head of Service and failed to attend the Stage 1 and Stage 2 meetings (all of which were offered as virtual meetings, reasonable adjustment was allowed for her union rep to make submissions on her behalf or for her to send through written submissions). Since 7 February 2022 she has continuously remained off sick. Referred to the Impact statement in management pack noting impact on service delivery. Panel Questions to management: DH: 1. a) At what point did it become clear that David Gill-Collis GM’s line manager was a trigger for her or she had raised concerns in regards to their working relationship? AH: The messages in the pack demonstrates the initial working relationship. The tone and emails appeared friendly and conversational, there only appeared to be an issued at the Stage 2 part of the sickness absence management process. b) Were there any concerns raised prior to GM maternity leave in regards to the management relationship between GM and DGC? No. 2. I note there was a suggestion of GM returning back to maternity leave was this explored. AH: Yes the suggestion was made but my understanding is that there was an underlying financial, when the draft OH report was shared with myself additional information and amendments made, this (finances) was added to giving further context to her circumstances. 3. RT: Given that there was mention of wanting to work an alternative working arrangement can you confirm whether you undertook any flexible working process with GM. AH: It was alluded to in conversations and then mentioned, we were 114 of 160 never in receipt of a formal request but tried to engage in conversations to support GM. 4. Reasonable adjustments and alternative ways to receive submissions from GM were made through all process: AH: Yes, virtual meetings were offered especially given hybrid working and the use of technology to facilitate them, I’ aware that her union rep attended some meetings and made submissions on her behalf, she was also offered the opportunity to send in a written submission. On of the adjustments put to the service was that we wait for her son to become a certain age before she is required to attend the office, this time frame came and went. Panel advised that will be adjourned to give opportunity for GM questions to management case. Meeting ended.

[343]We find that Mr Hyatt made an accurate summary of events and Mr Hughes raised good questions which were answered acceptably. We also find that:343.1 It was very unusual that R1 allowed Ms Ricci, as a solicitor, to attend the meeting on behalf of the Claimant. In our experience most employers would only have allowed a workplace colleague or trade union representative to attend.

343.2 Ms Ricci was not a medical professional but she should have been in a position to explain at the meeting what the Claimant or her own medical advisers thought she needed to improve her health and to get back to work;

343.3 Ms Ricci was allowed to make submissions on the management case. However, it was reasonable of R1 not to have allowed her to question, as a lawyer, employees of R1 (including in consideration of R1’s duty of care to those employees and notwithstanding their seniority as managers). Ms Ricci was permitted to ask questions in writing before and after the meeting and we are persuaded that they that would have been answered and taken into account before a decision was reached.

343.4 This was the first time that the Claimant, in this instance via Ms Ricci, raised the allegation about having been told to ‘pull herself together’ but Ms Ricci was not able to explain who the Claimant alleged had said this. If making such a serious allegation we would have expected Ms Ricci, as a solicitor, to have been clear on the details and to have obtained full instructions from the Claimant before alleging it on her behalf.

343.5 Ms Ricci/the Claimant had had the Management Case for plenty of time and this meeting was Ms Ricci’s opportunity to make submissions on behalf of the Claimant on that document. However, it was Ms Ricci who chose to leave the meeting. She was not pushed out of it. It was either Ms Ricci’s choice or the Claimant’s instructions to her, that Ms Ricci only 115 of 160 said what she did and then left and that Ms Ricci did not make more of the opportunity to state the Claimant’s position or counter the clear Management Case.

[344]The Claimant complained that R1 and R2 prevented Ms Ricci from participating in this stage 3 management meeting [464-468] and said that this amounted to direct disability discrimination [v R1 LOI 4.3.11. and v R2 LOI 4.4.2], discrimination arising from disability [LOI 5.1.13], a failure to make reasonable adjustments [LOI 6.2.7] and disability harassment [v R1 LOI 7.1.21 and v R2 7.2.2]. The complaints are not well founded because Ms Ricci was not prevented from participating in the meeting and was not unduly constrained from questioning employees of R1. We also find:

[345]Harassment [v R1 LOI 7.1.21 and v R2 7.2.2]: This was unwanted conducted in that the Claimant did not want Ms Ricci to be prevented from questioning R1’s witnesses but that denial clearly did not relate to the Claimant’s disability and Ms Ricci was clearly not denied it with the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her (it was denied because it would have been unreasonable for R1 and R2 to have allowed R1’s employees to have been subjected to that in circumstances where Ms Ricci could have made additional points on the Management Case had she wanted to do so). If it had that effect it was not in the circumstances reasonable for it to have done so given the circumstances we have described.

[346]Direct disability discrimination [v R1 LOI 4.3.11. and v R2 LOI 4.4.2]: There was no evidence that what R1 and R2 did was less favourable than the treatment that would have been afforded to someone who did not have the Claimant’s disability. In fact it is unlikely that R1 would have allowed Ms Ricci to attend the meeting at all had the Claimant not been disabled. She was treated more favourably not less favourably because of her disability. The reason R1 and R2 did not allow Ms Ricci to cross-examine R1’s employees was that it would have been unreasonable to have allowed her to go that far and R1 legitimately wanted to protect its employees from having to undergo that.

[347]Discrimination arising from disability [LOI 5.1.13]: This did not amount to unfavourable treatment of the Claimant. Ms Ricci could have made her submissions and she was given the opportunity to raise questions. In any event, even if it was unfavourable treatment of the Claimant it was not done because of any of the alleged Somethings. It was done for the reasons we have explained and was a proportionate means of achieving a legitimate aim (of balancing the needs of the Claimant to put her views across and challenge the Management Case and at the same time protect R1’s employees from having to undergo cross examination (which in our view would in any event have been unnecessary).

[348]Reasonable Adjustments [LOI 6.2.7]: We find that R1 did not operate the PCP alleged. It did allow the Claimant’s solicitor to speak at the hearing and make criticisms of R1’s management case on behalf of the Claimant. It would have allowed Ms Ricci to ask questions but what Ms Ricci wanted to do was to cross examine R1’s employees. R1 did therefore allow the Claimant to participate in 116 of 160 the meeting by proxy through Ms Ricci. If we are wrong and the PCP was wholly or partly applied by R1 then the Claimant was not put at a substantial disadvantage as compared to someone without her disability, Ms Ricci was nonetheless able to make submissions at the hearing and raise questions before and after the hearing. R1 did make the necessary reasonable adjustment by allowing Ms Ricci to participate in the hearing to the extent that was reasonable. For the reasons we have explained, it would not have been reasonable for the R1 to have been required to go further.

[349]On 18 May 2023, the same day as the stage three meeting, Ms Tolhurst wrote Ms Ricci a clear and reasonable email, copying Mr Hughes, which read as follows [472]: Subject: Glynis Moore hearing adjournment Hi Justina Thank you for your time earlier. As you will know, we would not usually allow an employee to be legally represented at an internal Hearing. We agreed in this case as a reasonable adjustment but we also have to balance that benefit of allowing you to attend on Glynis’ behalf to make representations with the right of our employees not to face questioning from a lawyer in an internal process. We understand that you have questions to ask of the managers. I said that it would not appropriate for you to question Andy Hyatt, the presenting manager directly but we would be happy to ask Andy to review and provide a written response to any written questions you provide. David has adjourned the hearing and is happy to defer his decision so that you can submit your questions, receive the response and then have the opportunity to provide any final information or submissions you would like to make on behalf of Glynis. I appreciate you mentioned you were not a qualified medical professional and therefore, could not make an assessment on the likelihood of Glynis returning to work but as Glynis is not well enough to participate directly and as you are attending to represent her interests, we would be grateful if you could ask Glynis to confirm her view of her current prognosis, when does she believe she may be fit to return to work, if she is fit to work would she return to her current role and if so does she believe that there are any further reasonable adjustments we could implement to support this. If she does not believe she will be able to return to that role, is interested in potential redeployment? We would be grateful if you can send me your questions by Monday morning 22/05. We will endeavour to obtain a written response by Wednesday 24/05 and you will then have an opportunity to make any final comments on Glynis’ behalf including the requested information above by Monday 29/05. David will then consider this information and take all the factors into 117 of 160 consideration before making his final decision.

[350]On 24 May 2023 Ms Tolhurst was then proactive in chasing Ms Ricci for a response, the deadline for receiving Ms Ricci’s questions having past two days earlier. Ms Tolhurst copied Mr Hughes on her email. She acknowledged that Ms Ricci might be busy but reasonably said that if R1 did not receive the questions by 5pm on 25 May 2023 then they would assume that there were no questions. At 16:39 on 25 May 2023 Ms Ricci posed her questions.

[351]Ms Tolhurst, in a reasonable timescale, on 7 June 2023 responded to Ms Ricci and copied Mr Hughes on her email. Ms Tolhurst reasonably gave Ms Ricci an opportunity to ask any further questions by 5pm on 13 June 2023 (Ms Ricci having had the opportunity to read her responses). She also repeated her request to Ms Ricci to get instructions from the Claimant as to the Claimant’s view of:351.1 her current prognosis;

351.2 when she believed she may be fit to return to work;

351.3 if she is fit to work would she want to return to her current role and if so, did she believe that there are any further reasonable adjustments R1 could implement to support this;

351.4 If she did not believe she would be able to return to that role, was she interested in potential redeployment?

[352]We set out below Ms Tolhurst’s responses to Ms Ricci’s questions contained in her 7 June 2023 email (Ms Ricci’s questions appearing in bold with responses in italics) [473-477]. 1. Can you run me through the process of how the sickness policy is usually applied? The management of absence process is applied as per the policy, please find this attached. In Glynis’s case the long-term sickness process has been triggered due to her length of absence. 2. How does that vary when someone suffers from a mental impairment rather than physical and what reasonable adjustments have been made for Glynis’ mental impairment? The process does not vary in terms of the sickness absence management process followed. We treat all absences the same in terms of process. We also do not distinguish between mental or physical impairments when considering the need to make adjustments. We maintain flexibility in terms of the employee’s individual circumstances including the specifics of their work, the impact of their particular condition on their ability to undertake their work and the adjustments recommended or requested. In Glynis’s case the following adjustments have been implemented to try and Glynis’s case the following adjustments have been implemented to try and help her engage with this process: 118 of 160 - She has been offered the following: sickness management meetings being held with another manager who was not identified as contributing to her stress and anxiety. - To not attend Kensington Town Hall and conduct the meetings via Teams - To provide a written submission instead of physically participating in meetings -For her union representative to attend meeting in her place to communicate key facts/information on her behalf (as you will be aware this happened at an initial meeting). -A meeting with HR (with no management involvement) was offered to support the undertaking a stress risk assessment, and to provide her with an opportunity talk through the HR processes and to try and encourage her to engage. In addition, the following adjustments have been offered when Glynis is deemed fit to return to work: -Phased return for the period deemed appropriate by Occupational Health, which can be worked from home; -Reduction I the number of days required in the office in comparison with the guidance for all staff 3. Exceptional circumstances. Policy states that “In certain, exceptional circumstances, the manager may feel it is inappropriate to commence the formal process or move to the next stage even though the level of absence has passed the trigger points (e.g. in cases of terminal illness, death of a partner, accident etc)” Could you please confirm when this was considered and provide evidence of such consideration. If not, please can you provide an explanation as to why this was not considered in accordance with your policy. The exceptional circumstances caveat almost exclusively applies to the management of short-term absence so, for example an employee may have had 6 days off sick so hit the sickness trigger, the manager has held a stage 1 meeting and put them on a monitoring period of 6 months. If within that 6-month period there is further sickness due to ‘exceptional circumstances’ e.g. a close relative dies or they have an accident then the manager has the discretion not to move to the next stage. It is not used in long term sickness cases where someone’s continued absence is having a detrimental effect on the service. The only exception in terms of long-term sickness is where someone has a terminal diagnosis which is likely to conclude in a short time frame and it would be more financially advantageous for them to die in service rather than be ill health retired. We have not received any medical evidence which would suggest that Glynis should be considered an exceptional circumstance. The formal 119 of 160 process is intended to be a supportive measure as well as a means of communicating the Council’s expectations. 4. Your policy states that employees should be offered free counselling. I understand that Glynis is still on the waiting list. What have you done to facilitate this for her? Employees access the EAP service independently from their management structure. When we became aware that Glynis tried contacting our EAP for support but didn’t get a timely response, this concern was picked up by Nick Moffatt, Head of Employee Engagement. When was picked up by Nick Moffatt, Head of Employee Engagement. When dealing with the issue Glynis shared with Nick that she had specific specialist support needs that she wanted to check if the EAP could assist with, but she was unable to speak on the telephone. Nick investigated an alternative means for her to have an initial consult, which resulted in her being advised to use the instant messaging (IM) system to communicate with a therapist. We understand that Glynis confirmed she was happy to use the IM service and he has not heard from her since. 5. Under the policy, extension of sick pay may be considered in exceptional circumstances. Can you please advise of whether this was considered and provide evidence of this? If not, please can you explain why this was not considered. Given the Council already operates a generous sick pay scheme (6 months full pay / 6 months half pay in Glynis’s case) extensions to sick pay are only considered in exceptional circumstances such as terminal cases or whereby the employee has not accrued much service and can evidence they will be pushed into severe financial hardship (i.e. evidence they can’t pay rent or mortgage etc). We accept that a reduction of pay would cause hardship to most employees but we are responsible for managing public funds and only extend the generous sick pay package in very rare and exceptional cases. We have received no medical or other advice to suggest that this is an exceptional situation. 6. I note that Glynis made a flexible working request in January 2022. Please can you confirm if you have made any reasonable adjustments for her of how she made an application? You will note my client went on sick leave as a direct result of the employer’s refusal to consider her flexible working request. We have not received a formal flexible working request from Glynis. Glynis was present and working in January 2022. We did not receive a request to make adjustments to the flexible working scheme and the occupational health reports received do not indicate that she requites adjustments to that process. 7. Could you please confirm the dates/notes for meetings where you have discussed with Glynis that her working from home would be an opportunity for childcare. Has there been a meeting to ascertain what 120 of 160 she meant? Has there been an attempt to see how that would work? As you know, we have been unable to facilitate a meeting with Glynis since she went off sick in February 2022. However, on several occasions Glynis stated that she needed to work from home as she did not have adequate childcare support. On the 8 February 2022 Andy Hyatt, Head of Service, wrote to Glynis assuring her he would try and assist where practical to support and explore appropriate options but was clear that working from home is not designed to supplement child-care and separate childcare arrangements would need to be made / discussed for her working days. We were also aware that Glynis was uneasy to attend the office as she was worried about the risk of contracting Covid and passing this on to her baby. For that reason, the Stage 2 meeting was delayed until her baby had turned 1, which is when she advised the risks would lessen. 8. In September 2022 she requested that she is visited at home for any of the meetings. Please can you explain why this was not facilitated? There is no record that support that a request of this nature was made. Please can you provide a copy of this request so we can investigate this further. 9. In October 2022 she has requested that a reasonable adjustment is made so that all work-related correspondence is sent to me. This was initially refused and the employer then continued to email to my client directly which would trigger a PTSD response preventing Glynis from participating in these proceedings. Please can you explain why this was not facilitated? I understand that your initial letter was sent to Andy Hyatt when he was on leave and correspondence was sent to Glynis in his absence. We have always given Glynis alternative options for engaging in this process as set out above. We have engaged with you and made an extraordinary adjustment in allowing you to attend the meeting on Glynis’ behalf but we remain concerned that formal communication via a lawyer creates a contentious relationship which is not conducive to Glynis maintaining good working relationships or will readily facilitate her return to work. 10. Glynis is a member of LGPS. Please advise if you have considered ill health retirement and provide evidence. Ill health retirement is only considered when we have received medical advice that the employee is deemed unfit to return to work in any capacity. We have not received that advice. 11. Under the Local Government Pension Scheme (LGPS) guidance issued by the Department for Communities and Local Government (DCLG) employer must make a decision as to whether ill-health retirement is likely "well before the end of the payment of sick pay". Please can advise if this was considered and if so provide evidence 121 of 160 or an explanation of why this was not. In order to qualify for any tier of IHR an independent occupational health practitioner, who is qualified to make an assessment under the rules of the LGPS, need to deem the employee permanently incapable of undertaking the duties they are employed to do. Dr Sherry has confirmed in both her reports dated 8/06/22 and 25/11/22 that in her ‘opinion Ms Moore is not permanently incapable of undertaking the duties of her role’ and ‘Ms Moore is not permanently incapable of gainful employment’. Therefore, we have not progressed an IHR application as it is very unlikely it would be successful in such circumstances. If Glynis wants to apply, we would have to seek a specific OH assessment. 12. Please can you provide details of the person who has held the meeting on the 6 March 2023 during which Glynis was told to ‘pull herself together’ The only person to speak directly with Glynis Moore on the 6 March 2023 was Farah Muhammad, HR advisor. The meeting was a hybrid meeting and Glynis attended alone, virtually. The exchange between Farah and Glynis was brief as Glynis presented with an advanced stutter, was tearful and appeared confused. Farah conferred with the Panel who advised that due to the way Glynis presented they were not comfortable to continue with the meeting given Glynis was unaccompanied without representation or support. We categorically deny anyone used the following term: ‘pull herself together’, no discussion requiring such a response took place, nor would this kind of language be used to an employee off sick from work. 13. Please can you advise as to why Mr David Gill Collis was copied into each invitation when Glynis has requested that he does not participate in any of the proceedings? So that he was kept abreast of key dates as he is Glynis’ line manager. In addition to ensure he was available, if the chair of the meetings required to meet with him separately, to provide key information to the process. This would allow for the relevant considerations to be made by the chair. 14. Finally, please can you advise as to the steps you have taken when my client informed you on the 1 August 2023, that she is suicidal. On 1 August 2023 Glynis sent the following email to an HR colleague who was supporting management procedurally with Glynis’s absence: ‘Why don’t I just kill myself and make it ok for you. Because that’s what you have triggered in me. You ignorant self important inhumane being’ Having received the email HR immediately engaged with Glynis’s union representative (on the same day) and asked that they carry out a welfare check and contact Glynis to provide support and signpost her to the relevant services if necessary. The union rep advised this had been carried out. 122 of 160 In addition, in September 2023 HR offered to arrange an informal meeting between Glynis and a HR colleague who had not been involved with the case, the purpose of which was to be used as a welfare check and to try and encourage Glynis to engage in the process. This did not take place as we were advised by yourself that all further correspondence should be directed to you in the first instance and Glynis was not to be contacted directly. On 2 November management arranged another referral for Glynis to attend an occupational health meeting for further support. On 9 December, having met with Glynis, OHU returned their report. Fortunately, this report did not mention any indication of suicidal tendencies being raised or discussed by Glynis. Allegations arising from the 7 June 2023 response to the Claimant’s questions:

[353]The allegations arising out of R1/R2’s response to the Claimant’s questions are complex. Direct Discrimination against R1 [LOI 4.3.12.1 – 4.3.12.4]

[354]It was alleged that R1 directly discriminated against the Claimant because of her disability by sending the email of 7 June 2023 and failing to:354.1 consider whether to exercise discretion on how to apply the sickness policy [LOI 4.3.12.1];

354.2 consider whether the Claimant’s situation amounted to ‘exceptional circumstances’ [LOI 4.3.12.2];

354.3 consider whether ill health retirement was appropriate (or considered it as an unsuitable option without any appropriate evidence) [LOI 4.3.12.3];

354.4 provide the Claimant with vacancies and details so that Claimant could consider redeployment [LOI 4.3.12.4].

[355]There is no evidence to suggest that R1 sent the email (or any part of its contents) because of the Claimant’s disability or that she was treated less favourably by the sending of the email.

[356]There was no failure to consider(i) exercising discretion on how to apply the sickness policy or

(ii) whether the Claimant’s circumstances were exceptional or

(iii) whether ill health retirement was appropriate or was an unsuitable option as we explain further below or

(iv) to provide the Claimant with vacancies and details for redeployment.

[357]To the extent that there was any such failure, there is no evidence to suggest that the Claimant was treated less favourably because of her disability. Ms Lord’s circumstances were entirely different and we consider that R1 would have treated an applicable hypothetical comparator in the same way.

[358]R1 had reasonably applied, and had also flexed, its sickness policy as regards the Claimant [LOI 4.3.12.1]. The Claimant’s circumstances were not exceptional 123 of 160 as defined in the policy and R1’s response to the question posed by Ms Ricci was reasonable [LOI 4.3.12.2].

[359]We have given careful thought to the Claimant’s submissions with respect to the ill health retirement point (in particular 1.78-1.83 of the Claimant’s written submissions) [LOI 4.3.12.3]. R1 and OH could clearly have been more accurate in their use of the terminology and tests applicable to ill health retirement. R1’s response to questions 10 and 11 in respect of ill health retirement (together with the language used by OH in their reports on the Claimant) did not properly capture the language in the ‘gateway’ test under the LGPS [625] and did not specifically address the question of whether the Claimant was both:(i) permanently unable to do her job until her Normal Pension Age, and

(ii) not immediately capable of undertaking gainful employment.

[360]Nevertheless, we find that R1 had clearly reached a reasonable conclusion that it could not be said that the Claimant was both:360.1 permanently unable to do her job as a fraud investigator until her normal pension age; and

360.2 at that point in time was incapable of undertaking gainful employment (defined under the LGPS scheme rules as paid employment for at least 30 hours a week for a period of at least a year).

360.3 There was nothing about the role itself which had caused her to become unwell and there was no reason to believe that on recovering her health she would not be able to do the role again. The anxiety that she suffered from 2022 onwards was not specifically related to the role of being a fraud investigator – it arose out her inability to care for her child and to work. There is no evidence that we were taken to that the Claimant could not have done another form of work that did not require a significant amount of communication. It was often said by the Claimant, as repeated by OH (who she said it to), that ‘work issues’ needed to be resolved but the Claimant never made clear what they were. It was not her job that made her ill. We were not taken to the document at [520] and so have not relied on it in these findings.

[361]The Claimant had for some time clearly not been interested in coming back to work for R1 in her role or any other role and had many months earlier unreasonably reached the conclusion that R1 was to blame for her poor state of health.

[362]As regards the provision of vacancies and other details [LOI 4.3.12.4], R1 had frequently made reference to the question of redeployment but the Claimant had expressed no interest in it whatsoever. As we say, for some time, probably since October 2022 when she took her son back to New Zealand (but potentially from an earlier point), the Claimant had had no intention of returning to work for R1 in any capacity (hence her repeated requests for a negotiated exit and failure to show any interest in discussion about redeployment). She had decided to relocate to New Zealand where her mother and other family members live. 124 of 160 Indirect Discrimination against R1 [LOI 8.1.4.1 and 8.1.7] and reasonable adjustments [LOI 6.2.9]

[363]Linked to some aspects of the direct discrimination claim that we address above are complaints of indirect discrimination and failure to make reasonable adjustments.

[364]As regards LOI 8.1.4.1, it is asserted by the Claimant that R1 applied a provision, criterion or practice (“PCP”) of failing “to exercise discretion [and treat] the Claimant’s case as ‘exceptional’”. In this respect the Claimant refers to R1’s policy [122] that in exceptional circumstances they may delay initiating or progressing a formal sickness absence process and/or may extend sick pay beyond the standard entitlement. The Claimant says that a failure to exercise discretion in these ways resulted in her suffering from complete shutdown, experiencing severe anxiety symptoms, not being able to return to work sooner and ultimately her dismissal. R1 submitted that this alleged PCP was specific to the Claimant and to her circumstances and not of wider application and therefore fails as a PCP. We accept that submission. Even if R1 applied such a PCP it did not put people who share the Claimant’s characteristic at a particular disadvantage compared to those who do not share her characteristic of mental impairment.

[365]As regards LOI 8.1.7 and 6.2.9 it is asserted that R1 failed to provide redeployment vacancies or detail which the Claimant said led to her dismissal because she said it prevented her from considering if any vacancies were suitable for her. It is alleged that this PCP applied form 30 March 2023 when the Claimant says redeployment was first suggested by OH. Again R1 submitted that this alleged PCP was specific to the Claimant and to her circumstances and not of wider application and so therefore fails as a PCP. We accept that submission and find that there was no PCP of failing to provide redeployment vacancies. The indirect and reasonable adjustments claims are therefore not well founded. We repeat our finding that R1 had frequently made reference to the question of redeployment but the Claimant had expressed no interest in it whatsoever. Even if R1 applied such a PCP it did not put people who share the Claimant’s characteristics at a particular disadvantage or substantial disadvantage compared to those who do not share her characteristic of mental impairment. Direct Discrimination against R2 [LOI 4.4.3.1 – 4.4.3.3]

[366]It was alleged that R2 directly discriminated against the Claimant because of her disability by sending the email of 7 June 2023 and failing to:366.1 . consider whether to exercise discretion on how to apply a sickness policy;

366.2 consider whether Claimant’s situation was exceptional circumstances;

366.3 consider whether ill health retirement was appropriate or considered it as an unsuitable option without any appropriate evidence.

[367]There is no evidence to suggest that R2 sent the email (or any part of its 125 of 160 contents) because of the Claimant’s disability or that she was treated less favourably by the sending of the email.

[368]We reach the same conclusions as referenced above in respect of the allegations against R1 under LOI 4.3.12.1 – 4.3.12.3. Discrimination Arising from Disability against R1 [LOI 5.1.14.1- 5.1.14.3] and a related reasonable adjustments and indirect discrimination complaint [LOI 6.2.10 and 8.1.8]

[369]It was alleged that R1 discriminated against the Claimant because of something arising in consequence of her disability by sending the email of 7 June 2023 and failing to:369.1 exercise discretion under sickness absence because the Claimant was on long sickness absence rather than short sickness absence;

369.2 consider Claimant’s flexible working application because she was unable to make a formal application;

369.3 consider whether ill health retirement under the Local Government Pension Scheme (LGPS) was possible for the Claimant further/in the alternative that it considered it unsuitable;

[370]There is no evidence to suggest that R1 sent the email (or any part of its contents) because of any of the Somethings. The email was sent because the Claimant wanted R1’s response to her questions.

[371]R1 did exercise discretion under the sickness absence policy, in particular by not progressing through the differences stages of long term sickness management as quickly as provided for under the policy. We do not consider that it failed to exercise any other discretion under the policy because of any of the Somethings. In particular, R1 reasonably chose not to extend the Claimant’s sick pay beyond the normal, generous, entitlement and in accordance with its legitimate need to manage public finances [LOI 5.1.14.1].

[372]R1 did consider the Claimant’s informal application for flexible working (i.e. to work 2 days in the office per month / 1 day in the office every fortnight). R1 reasonably refused that request because it reasonably concluded (without the Claimant at the time providing R1 with any clear evidence to the contrary) that the Claimant wanted the arrangement so that she could both look after her baby and work at the same time. The Claimant did nothing to allay R1’s legitimate concerns, which it had made clear to the Claimant, that she was not in fact asking for flexibility to care for her child and try and do her work at the same time. There is no evidence that the Claimant would have made any other request had she made it formally or that she would have made the request on any more persuasive basis had she made it formally. There is also no evidence that the Claimant could not, perhaps with the support of Ms Nield, have made a formal flexible working request. R1 sent the Claimant the necessary links and the Claimant went on a training course about flexible working at this time. It was incumbent on the Claimant to then take the necessary further steps and R1 reasonably expected her to do so. We find that the Claimant had nothing further 126 of 160 to say in support of a formal flexible working request that she had not already told R1 in her informal request [LOI 5.1.14.2].

[373]R1 did not fail to consider whether ill health retirement under the Local Government Pension Scheme (LGPS) was possible for the Claimant. R1 did consider this, it answered the Claimant’s enquiry about the possibility of ill health retirement and it asked its OH specialist whether it might be an option. We refer to our findings in respect of LOI 4.3.12.3 and 4.4.3.3. R1 reasonably concluded that the Claimant would not qualify for ill health retirement. It did not conclude that the Claimant would not be eligible for ill health retirement because of any of the things that we have found arose in consequence of the Claimant’s disability [LOI 5.1.14.3]. R1 commented in its response to the Claimant’s questions (number 11) that “If Glynis wants to apply, we would have to seek a specific OH assessment.” The Claimant did not then ask R1 to take this step (at a time when she had the benefit of a solicitor).

[374]This allegation was also brought as a complaint of failure to make reasonable adjustments [LOI 6.2.10] and indirect disability discrimination [8.1.8]. It was alleged that R1 applied a PCP of failing to consider ill health retirement which the Claimant said led to her dismissal (as regards the indirect complaint it was specified that the failure ‘occurred from May 2023’). Again R1 submitted that this alleged PCP was specific to the Claimant and to her circumstances and not of wider application and so therefore fails as a PCP. We accept that submission. In any event there was no failure to consider ill health retirement. It was considered and reasonably ruled out. Even if R1 applied such a PCP it did not put people who share the Claimant’s characteristics at a particular disadvantage or substantial disadvantage compared to those who did not share her characteristic of mental impairment. Harassment allegations against R1 [LOI 7.1.22] and R2 [7.2.3]

[375]The Claimant alleges that R1 and R2 subjected her to unlawful disability harassment by sending her the email on 7 June 2023. We find that the sending of the email was not unwanted conduct – the Claimant wanted responses to her questions (even if she did not like the answers she got). If we are wrong and the sending of the email was unwanted conduct, the sending of the email was not conduct related to disability. For the avoidance of doubt, to the extent that contents of the email related to the Claimant’s disability, we make individual finding on the matters complained about in the contents below. If we are wrong and the sending of the email was unwanted conduct that related to disability then it was not sent (either by R1 or R2) with the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant. If it had that effect then it was not reasonable for it to have done.

[376]The Claimant also complains about acts/failures to act linked to the same 7 June 2023 email saying that they each amounted to unlawful disability harassment by R1 [LOI 7.1.22]. We do not repeat our findings in respect of reasonable and appropriate approach which we consider R1 and, to the extent she was involved R2, took to the application of the sickness absence policy, the exercise of discretion under the policy, not extending the Claimant’s sick pay or the question of the Claimant’s eligibility for ill health retirement. All of the same acts, bar one, 127 of 160 are brought as complaints of disability harassment against R2 [LOI 7.2.3] and we make the following findings in respect of each:376.1 [LOI

7.1.22.1 and 7.2.3.1] failed to make any adjustments to how the Sickness Policy was applied: We find that this was unwanted conduct that related to the Claimant’s disability but its purpose was not (either by R1 or R2) to violate the Claimant’s dignity or to create an intimidating, hostile, degrading, humiliating or offensive environment for her. The purpose was to ensure that public finances and R1’s staff resources were properly managed to deliver public services. If it had that effect then it was not reasonable for it to have done.

376.2 [LOI

7.1.22.2 and 7.2.3.2] failed to apply discretion and to not proceed to formal sickness absence process: We find that this was unwanted conduct that related to the Claimant’s disability but its purpose was not (either by R1 or R2) to violate the Claimant’s dignity or to create an her. The purpose was to ensure that public finances and R1’s staff resources were properly managed to deliver public services. If it had that effect then it was not reasonable for it to have done. R1 struck an appropriate balance between flexing its sickness management approach (by extending the timescales) and its need to manage public finances and staff resources in the provision of public services. Had R1 and R2 managed the Claimant informally it would not have been a position, as it reasonably needed to be, to take formal steps with the Claimant and ultimately dismiss her from its employment.

376.3 [LOI

7.1.22.3 and 7.2.3.3] failed to consider whether Claimant’s circumstances are exceptional and failed to consider whether discretion should be exercised to extend Claimant’s sick pay in January 2023: We do not repeat our broader findings in this respect. We find that this was unwanted conduct that related to the Claimant’s disability but its purpose was not (either by R1 or R2) to violate the Claimant’s dignity or to create an intimidating, hostile, degrading, humiliating or offensive environment for her. The purpose was to ensure that public finances and R1’s staff resources were properly managed to deliver public services. If it had that effect then it was not reasonable for it to have done.

376.4 [LOI 7.1.22.4] requesting that Claimant makes a formal application for flexible working despite her mental health condition: We do not repeat our broader findings in respect of the alleged failures to consider flexible working for the Claimant. In any event, by this time there was no proposal for flexible working from the Claimant or any suggestions from her thus R1 was reasonable in its approach. If there was any such unwanted conduct it did not relate to the Claimant’s impairments (the request for flexible working was because of the Claimant’s difficulties with childcare) and its purpose was not (either by R1 or R2) to violate the Claimant’s dignity or to create an intimidating, hostile, degrading, humiliating or offensive environment for her. R1 had a reasonable expectation that the Claimant would submit a formal flexible working request in accordance with its 128 of 160 policy, perhaps with the support of Ms Nield. If it had the effect alleged then it was not reasonable for it to have done.

376.5 [LOI 7.1.22.5 and 7.2.3.4] telling the Claimant that they were not able to get the Claimant to participate in the sickness absence process, however failing to adopt a less formal approach in accordance with the recommendations of the OH: We find that this was unwanted conduct that related to the Claimant’s disability but its purpose was not (either by R1 or R2) to violate the Claimant’s dignity or to create an her. If it had that effect then it was not reasonable for it to have done. R1, by allowing the participation of the Claimant’s solicitor, had made an adjustment which went some way beyond what was normal. We repeat, had R1 and R2 managed the Claimant informally or less formally it would not have been a position, as it reasonably needed to be, to take formal steps with the Claimant and ultimately dismiss her from its employment if she remained unable to return to work. This was the legitimate purpose of the acts or failures to act about which the Claimant complains.

376.6 [LOI 7.1.22.6 and 7.2.3.5] stating that it made reasonable adjustments by communicating with Ms Ricci, despite there being ample evidence of R1 denying this request and continuing to copy the Claimant: The Claimant did not at the time make clear, either herself or through her solicitor Ms Ricci, that she did not want to be copied or sent important correspondence sent to Ms Ricci. The original request said [403] “To accommodate my client’s disability and so that I can assist my client in dealing with employer’s communication please can you address all the correspondence intended for Ms Moore to me until further notice.”. This did not make clear that the Claimant should not be copied on correspondence. R1 and R2 were understandably concerned to ensure that the Claimant received the correspondence. If this was unwanted conduct then the Claimant did not make that clear at the time. If we are wrong and it was unwanted conduct then it did not relate to her disability. If we are wrong on that then its purpose was not (either by R1 or R2) to violate the Claimant’s dignity or to create an intimidating, hostile, degrading, humiliating or offensive environment for her. If it had that effect then it was not reasonable for it to have done.

376.7 [LOI 7.1.22.7 and 7.2.3.6] failing to consider whether ill health retirement under the Local Government Pension Scheme (LGPS) was possible for the Claimant further/in the alternative considering it unsuitable (without any appropriate evidence): As we have explained elsewhere, there was no such failure to consider the Claimant’s eligibility for ill health retirement and R1 and R2 reasonably concluded that the Claimant would not be eligible. We find that this was unwanted conduct that related to the Claimant’s disability but its purpose was not (either by R1 or R2) to violate the Claimant’s dignity or to create an intimidating, hostile, degrading, humiliating or offensive environment for her. If it had that effect then it was not reasonable for it to have done. 129 of 160

376.8 [LOI 7.1.22.8 and 7.2.3.7] Inviting Mr Gills – Collis into all the meetings relating to the Claimant to keep him abreast of key dates despite Claimant’s requests: We address these complaints in our Additional Analysis and Conclusions below. 19 June 2023 – Decision to dismiss

[377]On 19 June 2023 Mr Hughes sent his decision from the Stage 3 Sickness Absence Panel hearing by email to Ms Ricci and copied it to the Claimant. His outcome letter said: [The letter started by accurately summarising key events] In the meeting I listened carefully to the points raised by Andy, who presented the management case. It’s clear that you have had a significant amount of time off work due to stress and anxiety and your unsatisfactory level of attendance has been an issue since 7 February 2022. I understand that you as of 18 May 2023 have had 465 days off work due to sickness from 7 February 2022 to that date. I note that the formal sickness management process should have been triggered within 14 calendar days of your first day of absence in accordance with our absence management policy. However, this was extended in your case and the formal process was instigated on 7 May 2022. I understand that the purpose of the sickness management process is two-fold; to manage sickness absence and the impact on the Council’s services and also to support you and consider any measures we can make to facilitate your return to work. Unfortunately you have not personally participated in any of the meetings in the sickness absence process. despite a number of reasonable adjustments having been implemented to support you to participate such as:• Meetings being held remotely and with managers other than your line manager, who you have identified as a trigger to your stress and anxiety.

• Allowances for you to provide written submissions instead of physically participating in meetings or for your Trade Union representative to attend the meeting and communicate key facts on your behalf.

• A meeting was arranged with an independent HR Officer who had not been involved in your case to discuss your situation without management being present.

• Allowance was also made for your solicitor to attend the Stage 3 hearing to accompany and then, following the rearranged hearing, to submit to submit questions on your behalf. We are now in a position as your employer where we are not able to speak to you directly, instead we are communicating via your solicitor. While we agreed to this as a temporary adjustment to our usual 130 of 160 expectations of communication with an employee during a period of absence, it is unsustainable as an indefinite arrangement. Whilst I sympathise with your current situation, I have to take on board the consequences your extensive time off has had on the work of the department, both in terms of the effect on service delivery and on your colleagues who have covered your workload in your absence. I also need to consider the costs of missed opportunities to investigate fraud. The pack of papers for the meeting on 18 May 2023 included the outcome letter from the Stage 2 case conference held on 22 August 2022 confirming that you had been issued with a formal caution, that your continued absence from work could not be sustained. The letter stated that “the procedure states that if you are not able to return to work within one month of the date of this letter, then your case will be taken to the Director to make a decision about your continued employment with the Council." I have also taken into account the latest advice from the Council's Occupational Health Service that states you are unfit to return to work and it is not anticipated that you can return to work without further treatment. We have asked Justina on two occasions (via emails dated 18 May and 6 June 2023) to provide us with an update on your current prognosis and whether you believe you may be fit to return to work and whether there were any further reasonable adjustments that we could implement to support a return. As we did not receive a response, I have to conclude you are not fit to return to work either now, or in the near future. I did consider whether we could consider medical redeployment. The Council’s policy on medical redeployment states: “If you are identified by Occupational Health as unfit to carry out your normal duties and a recommendation is made that you should be redeployed on medical grounds, a consideration for dismissal meeting will be convened at which you will be advised of the implications of this recommendation.” However, I have taken the view that the medical advice indicates that you are unfit to work irrespective of adjustments and therefore considering whether an alternative role would suit you is not an option. I’m sorry to inform you that your level of absence and its negative effect on the running of the service cannot be accommodated any longer. Your employment will be terminated on the grounds of your sickness. Your dismissal will take effect from the 19 June 2023. You will be paid for three months’ notice in a lump sum in lieu of your contractual notice entitlement. You have the right of appeal against dismissal. If you wish to exercise this right, you must do so within two weeks of the date of this letter. Any 131 of 160 letter of appeal should be addressed to Debbie Morris, Director of HR and OD and should set out the grounds of your appeal.

[378]The Claimant did not appeal this decision and provided us with no explanation of her decision not to appeal the decision. Direct disability discrimination [LOI 4.3.13 and 4.4.4]

[379]The Claimant alleges that the decision to dismiss constituted direct disability discrimination [LOI 4.3.13] by R1 and by R2 (the Claimant alleging that R2 was a decision maker or advisor in respect of the Claimant’s dismissal or influenced the decision to dismiss) [LOI 4.4.4]. As regards the allegation against R1, we find that the Claimant was treated no worse than a comparator would have been treated in the same circumstances. R1 dismissed the Claimant because her sickness absence had become unsustainable and because there was no prospect of her coming back to work within a reasonable period. She was not dismissed because of her disability. As regards the direct discrimination claim against R2, we accept her evidence that it was not her decision to dismiss the Claimant and we accept that the decision to dismiss was taken by Mr Hughes alone and R2 did not advise Mr Hughes to dismiss the Claimant or influence him to dismiss her. R2 did not treat the Claimant less favourably because of her disability as alleged [LOI 4.4.4]. Discrimination arising from disability [LOI 5.1.15]

[380]It is further alleged that R1, by dismissing her, subjected the Claimant to unfavourable treatment because of something arising in consequence of her disability [LOI 5.1.15]. The decision to dismiss was plainly unfavourable treatment and it was because of the Claimant’s sickness absence. The Claimant’s sickness absence a Something said to have arisen in consequence of her disability (her stutter and general communication limitations [LOI 5.1.2] and suffering from panic attacks [LOI 5.1.3.1] and severe anxiety [LOI 5.1.3.2]) and they were sufficiently closely connected to have also caused the unfavourable treatment (her dismissal). The other things said to arise inconsequence of her disability either did not so arise (LOI 5.1.1 and LOI 5.1.5 - as we have explained) or were not a cause of the decision to dismiss (5.1.3.3).

[381]However, the Claimant’s complaint in this regard is not well founded. R1’s justification for the decision to dismiss was clear and persuasive. R1’s aims were legitimate, being its need to manage public finances and its staff resources to ensure sufficient staff were available to meet the needs of the services it had to provide. The Claimant’s dismissal was an appropriate and reasonably necessary way to achieve those aims. R1 had waited a considerable period of time for the Claimant to recover her health and, on the information available to it at the time, it would not have been proportionate to give the Claimant more time to do so (in particular DHWS22-25). The justification for moving to dismissal was clearly and persuasively set out in the Management Case of 20 January 2023 (which we have noted above - in particular at [440-441]). We were also persuaded by R1’s evidence that it did not want to lose the Claimant’s skills and that they were scarce in the market at that time and had led to the Claimant’s role during her sick leave and after her dismissal being covered by apprentices. The Claimant and Ms Ricci were provided with that report and given the 132 of 160 opportunity to ask questions and make submissions on it before the decision to dismiss was taken. Harassment [LOI 7.1.23 (R1) and 7.2.4 (R2)]

[382]The Claimant also alleged that R1’s decision to dismiss amounted to disability harassment and that, as the alleged decision maker or someone who had influenced the decision to dismiss, R2 had also subjected the Claimant to disability harassment. We do not need to repeat our findings as to R2’s role in the decision to dismiss and it is plain that she did not take the decision to dismiss the Claimant nor did she subject her to disability harassment. R1’s decision to dismiss (taken by Mr Hughes) was clearly unwanted conduct. It also related to the Claimant’s disability. However, the purpose of the decision to dismiss was not to violate the Claimant’s dignity or to create an intimidating, hostile, degrading, humiliating or offensive environment for her. If it had that effect then it was not reasonable for it to have done. In particular, Mr Hughes’ letter clearly and fairly set out the reasons for his decision. Indirect disability discrimination [LOI 8.1.9]

[383]The decision to dismiss was also said to be a PCP that indirectly discriminated against the Claimant. The decision to dismiss plainly was not a PCP it was a decision specific to the Claimant and to her circumstances and not of wider application. Even if R1 applied such a PCP it did not put people who share the Claimant’s characteristics at a particular disadvantage compared to those who do not share her characteristic of mental impairment and was a proportionate means of achieving a legitimate aim (for our reasoning in that regard see our comments on the corresponding arising from disability discrimination claim). ADDITIONAL ANALYSIS AND CONCLUSIONS

[384]The Claimant has brought other complaints which we decided were best addressed separately, outside the chronological findings of fact that we set out in the section above. Formal flexible working request Reasonable Adjustments LOI 6.2.2

[385]The Claimant alleges that R1 applied a PCP that employees make a formal application for flexible working for it to be considered. The Claimant’s case is that this PCP put her at a substantial disadvantage compared to someone with out the Claimant’s disability in that the PCP meant that she had to be signed off sick which subsequently led to her being dismissed.

[386]The Claimant’s case is that she made informal requests for flexible working on the following dates:386.1 6 January 2022 (by text [281]) [LOI 6.2.2.1] [LOI 8.1.2.1];

386.2 7 January 2022 (in a telephone conversation with Mr Gill-Collis (email at [285-286] refers) [LOI 6.2.2.2] [LOI 8.1.2.2];

386.3 28 January 2022 (in a telephone conversation with OH ([300] refers) [LOI 133 of 160 6.2.2.3] [LOI 8.1.2.3];

386.4 1 February 2022 (telephone call with Mr Gill-Collis ([305-306] refers and informal offer made to give the Claimant four weeks to sort out her childcare arrangements during which she would not need to attend the office) [LOI 6.2.2.4] [LOI 8.1.2.4];

386.5 8 February 2022 (by email [321]) [LOI 6.2.2.5] [LOI 8.1.2.5];

386.6 4 April 2022 (email [337] [LOI 6.2.2.6] [LOI 8.1.2.6]);

386.7 6 May 2022 (in meeting Ms J Neild attended on the Claimant’s behalf [356- 357] [LOI 6.2.2.7] [LOI 8.1.2.7];

[387]The Claimant says that the adjustment that should have been made on each of these occasions without requiring her to go through a formal process.

[388]As we have explained, until 9 December 2022 R1 did not know and nor could it reasonably have been expected to know that the Claimant had the disability. The Claimant’s impairments had not been long term and could not reasonably have been expected to be long term before that date and so the duty to make reasonable adjustments did not arise. We also refer to our findings on LOI 5.1.14.2. [i.e. R1 did consider the Claimant’s informal application for flexible working (i.e. to work 2 days in the office per month / 1 day in the office every fortnight). R1 reasonably refused that request because it reasonably concluded (without the Claimant at the time providing R1 with any clear evidence to the contrary) that the Claimant wanted the arrangement so that she could both look after her baby and work at the same time. The Claimant did nothing to allay R1’s legitimate concerns, which it had made clear to the Claimant, that she was asking for flexibility to care for her child and try and do her work at the same time. As we have said, there is no evidence that the Claimant would have made any other request had she made it formally or that she would have made the request on any more persuasive basis had she made it formally. There is also no evidence that the Claimant could not, perhaps with the support of Ms Nield, have made a formal flexible working request. R1 sent the Claimant the necessary links and the Claimant went on a training course about flexible working at this time. It was incumbent on the Claimant to then take the necessary further steps and R1 reasonably expected her to do so. We find that the Claimant had nothing further to say in support of a formal flexible working request that she had not already told R1 in her informal request [LOI 5.1.14.2].]

[389]In any event we find:389.1 There was of course a formal process [545] and application form for asking for flexible working and it was the Claimant’s choice as to whether she triggered that process (which of course was backed up by statutory provisions). R1 reminded her of that but demonstrated its willingness, in accordance with its policies, to deal with requests informally (as it did with the Claimant herself). The Claimant did not make any formal or informal adjustment to the flexible working arrangement she was asking for and gave R1 no assurance that she in fact had adequate childcare 134 of 160 arrangements that would allow her to work from home (even if R1 could have accommodated her not doing her in person duties).

389.2 The Claimant was not put at a substantial disadvantaged in comparison with someone who did not have her impairment and was not put at the disadvantage alleged.

389.3 R1 did consider the Claimant’s informal flexible working requests and refused them for good reason (which included its need for activities to be done in person and the Claimant not having done anything to allay R1’s concerns that she was not seeking to simultaneously care for her child and work). LOI 8.1.2 Indirect Disability Discrimination:

[390]The Claimant brings the same complaints as an indirect disability discrimination claim which is also not well founded for the reasons set out above. The Claimant was also not put at the particular disadvantage alleged. LOI 6.2.4 Reasonable Adjustments- sickness absence policy

[391]The Claimant alleges that R1’s sickness absence policy was a PCP which caused her the substantial disadvantage of causing her to suffer from a complete shutdown, her mental health deteriorating to the point where she was considering suicide, prolonging her ill health absence and resulting in her experiencing severe anxiety symptoms and inability to participate in the proceedings, which subsequently led to her dismissal. She says that R1 should have made the following adjustments to avoid this alleged substantial disadvantage:391.1 It should not have commenced a formal process;

391.2 It should have paused the formal process;

391.3 It should not have proceeded to any of the other formal stages;

391.4 It should have engaged with the Claimant in a less formal and supportive way throughout her sickness absence;

[392]R1, of course rightly, accepted that its sickness absence policy was a PCP which it applied to the Claimant.

[393]As we have explained, until 9 December 2022 R1 did not know and nor could it reasonably have been expected to know that the Claimant had the disability. The Claimant’s impairments had not been long term and could not reasonably have been expected to be long term before that date and so the duty to make reasonable adjustments did not arise. To this point R1 had issued its stage 2 sickness absence outcome. There was no obligation before that point to make adjustments to the sickness absence policy.

[394]We do not accept that it was the application of R1’s sickness absence policy that caused the Claimant the alleged substantial disadvantage. She was clearly and regrettably very unwell as she explains when setting out her alleged substantial 135 of 160 disadvantage. However, we do not accept that this was caused by the application of R1’s sickness absence policy. She became very unwell before the sickness absence policy had been initiated. In any event, if we are wrong, we do not consider that the adjustments that the Claimant says should have been made were reasonable. R1 did not start the sickness absence process until some time after the normal trigger point and it moved through the process at an appropriate speed and more slowly than it might have done. R1 was entitled to manage the Claimant’s long term sickness absence in the way that it did and it was important that it did so formally so that if, notwithstanding the opportunities that the process afforded for the Claimant to discuss with her employer things that might be done to help her return to work, the Claimant did not return to work in a reasonable time period then R1 was in a position lawfully to dismiss the Claimant. R1 rightly applied a formal process which also offered the appropriate degree of support (taking into account that R1 needed to manage public finances and its staff resources to ensure sufficient staff were available to meet the needs of the services it had to provide). When Ms Corbin offered a more informal meeting the Claimant did not take up her offer. 8.1.3 Indirect Disability Discrimination

[395]The Claimant also says that the application of R1’s sick policy amounted to indirect disability discrimination. Knowledge of disability is not of course relevant to a claim of indirect disability discrimination. However, the Claimant’s complaint is not well founded for the same reasons as her complaint of failure to make reasonable adjustments was not well founded (the test of course being ‘particular disadvantage’ rather than ‘substantial disadvantage’ and indirect discrimination requiring a pool of comparison). The way in which R1 applied its sickness policy to the Claimant was a proportionate means of achieving the legitimate aim of ensuring that R1 managed public finances and its staff resources to ensure sufficient staff were available to meet the needs of the services it had to provide. Communications with Mr Gill-Collis and corresponding with Ms Ricci - Harassment [LOI 7.1.9, 7.1.12, 7.1.13, 7.1.14, 7.1.17, 7.1.19, 7.1.20, 7.1.22.6, 7.1.22.8, 7.2.3.5, and 7.2.3.7], Discrimination Arising From Disability [LOI 5.1.6], Failure to make reasonable adjustments [LOI 6.2.3 and 6.2.8], Indirect Disability Discrimination [LOI 8.1.5 and 8.1.6]

[396]The Claimant brings a large number of complaints against R1 and some against R2 which can be summarised as:396.1 complaints about Mr Gill-Collis being invited to meetings,

396.2 Mr Gill-Collis being copied on correspondence; and

396.3 R1 not corresponding with Ms Ricci as her representative/communicating with the Claimant directly. Those complaints are brought as allegations of harassment, discrimination arising from disability, failures to make reasonable adjustments and indirect disability discrimination. 136 of 160

[397]Mr Gill-Collis, was the manager who reasonably refused her request to work from home and to come into the office only two days a month / one day a fortnight in circumstances where it was clear that the Claimant did not have adequate childcare in place (for financial reasons – had money been no object then her evidence was clearly that she could have used the Sitters service full time) and gave no assurance that she was not planning to simultaneously work and also care for her baby. It was not reasonable for the Claimant to ‘turn against’ Mr Gill-Collis as she did. He had not created the situation and had an obligation as the Claimant’s manager to make decisions fairly, which he did. It was the Claimant’s obligation to ensure, when she curtailed her maternity leave, that she could return to work effectively. It would have been plainly foreseeable that COVID restrictions would end and she would be asked to come back to work in person. The Claimant could have made a flexible working request before she came back from maternity leave and she did not do so. The fact that she was anxious about her son contracting COVID was understandable but the stress she then suffered arose out of a situation she had created for herself and which she could have foreseen and planned for (both practically and financially). It was not Mr Gill-Collis’ fault. R1 took reasonable steps to remove Mr Gill-Collis as the person directly managing the Claimant’s sickness absence and who, however wrongly, was a trigger for the Claimant’s anxiety. However, at no point did the Claimant say that he should not be copied on emails to her. It would have been straightforward for R1 and R2 to have sent correspondence on to him after it had been sent to the Claimant but it was not unreasonable in the circumstances for either R1 or R2 not to have proactively done so. If this was unwanted conduct it did not relate to the Claimant’s disability and, even if it did, its purpose was not (either by R1 or R2) to violate the Claimant’s dignity or to create an intimidating, hostile, degrading, humiliating or offensive environment

[398]On 6 July 2022 OH sent Mr Gill-Collis an OH report dated 8 June 2022 [364- 367]. The report commented “She informed me that she feels her manager has memory lapses and this heightens her anxiety” and “Is temporary or permanent redeployment advisable on medical grounds? This is not currently required, however in view of her heightened anxiety it may be helpful, if operationally feasible, for Ms Moore to have an alternative manager.” . In her witness statement the Claimant asserted [CWS130] that she “also requested that Mr Gill-Collis is left out of communications and that he did not participate in this process”. The report did not make any reference to Mr Gill-Collis being left out of communications.

[399]On 14 July 2022 [368] Mr Gill-Collis sent the Claimant an invitation to a stage 2 sickness absence meeting. Based on the content of the OH report we do not consider it was unreasonable for Mr Gill-Collis to have sent this invitation.

[400]On 19 July 2022 the Claimant told Mr Moffatt [373] (Head of Employee Engagement who was helping with getting EAP support): “My boss is definitely a trigger to my anxiety and for me to return to work I need to address this trigger as well as the trigger of fear I have my son may be in danger or die from covid etc. Having lost his twin this is my primary fear and trigger”. 137 of 160

[401]On 21 July 2022 [374] Ms Nield, in her email to Mr Gill-Collis and Ms Muhammad said, “It has also been mentioned that one of her triggers is her manager and the looking at the option of her being managed by someone else, which we hope will be looked at going forward.”.

[402]R1 quickly took note of this comment and reasonably then interpreted it as a request that Mr Gill-Collis no longer manage the Claimant’s sickness absence. They also reasonably determined that it was not appropriate or necessary, given the Claimant was not in work, for the Claimant to be formally moved under a different line manager for the purposes of day to day work.

[403]On 25 July 2022 Mr Gill-Collis [376] sent the Claimant an email copied to Mr Hyatt, Ms Nield and Ms Muhammad attaching a new invite to the stage two sickness absence meeting. The cover email made clear that the meeting had been arranged ‘with Andy Hyatt’. The letter itself made clear that only Mr Hyatt and Ms Muhammad would be in attendance at the meeting. This in our view was also a fair and reasonable approach for R1 to have taken. No complaint was raised about this course of conduct in the correspondence that immediately followed. All that the Claimant said, in an email of 1 August 2022 [380] was “Contacting or even going into work aswell as my Manager Gill-Collis are triggers to my anxiety. This causing an adverse reaction that can last over a week. Walking towards the rbkc Borough causes a negative physical reaction.”

[404]On 3 August 2022 [385] R2’s email to the Claimant included the following “The stage 2 meeting will be rearranged for next week, Farah will be in touch with the details. Given you currently find contact with David stressful we have agreed that he will not take part in this meeting or any future meetings regarding this current period of sickness. Andy Hyatt will attend in his place.”. R1 then adhered to this undertaking.

[405]Mr Gill-Collis was copied on a meeting invitation for the stage two meeting [391] and we accept that this was for information purposes. It had been made clear to the Claimant that he would not in fact be in attendance. Ms Nield, in replying to the invitation to say that the Claimant would not be attending, did not ask R1 to remove Mr Gill-Collis from copy in correspondence. The meeting was in fact chaired by Mr O’Halloran.

[406]By 16 September 2022 Ms Nield had indicated to R1 that the Claimant might appoint a solicitor to engage with R1 on the Claimant’s behalf. Ms Muhammad mentioned to Ms Nield that they had not heard from anyone [400].

[407]As we refer to above:407.1 Ms Ricci wrote to Mr Hyatt on 26 September 2022 [403] and amongst other things commented "To accommodate my client’s disability and so that I can assist my client in dealing with employer’s communication please can you address all the correspondence intended for Ms Moore to me until further notice”.

407.2 Mr Hyatt was on leave at the time of receipt of the email;

407.3 We accepted Mr Hyatt’s assertion that Ms Ricci would have received his 138 of 160 out of office message giving details of other colleagues who could assist in his absence.

407.4 Because Mr Hyatt was away he was not able to take Ms Ricci’s instructions forward and, contrary to her request, a helpful and supportive e-mail was sent directly to the Claimant by Ms S Corbin (HR consultant) on 30 September 2022 [405].

[408]Ms Ricci, having received Mr Hyatt’s out of office message, had it been imperative to her client, could have warned the Claimant that she had not been able to convey the request and could have used one of the alternative contacts provided by Mr Hyatt’s out of office message.

[409]As we also reference above, on 3 October 2022 Ms Ricci wrote to Mr Hyatt [402] reiterating her request that correspondence be sent to her so that she could support the Claimant. As we have said, Ms Ricci unfairly criticised R1 for the fact that Ms Corbin’s correspondence had been sent directly to the Claimant. On 6 October 2022 the Claimant received an envelope from Ms Corbin which included the correspondence sent by email. We consider this to have been entirely reasonable in the circumstances.

[410]Mr Hyatt responded on 4 October 2022 and asked Ms Ricci to provide him with the Claimant’s confirmation that she had instructed Hanne & Co to act on her behalf.” Mr Hyatt understandably wanted proper authority to correspond through Ms Ricci. He contacted Ms Ricci again on 12 October 2022 [408] to express the concern that communication via lawyers was not conducive to facilitating open and transparent working relationships with employees and that on the information he had he did not consider the request reasonable. As we have said, we consider his response to have been reasonable. The Claimant’s request that communication just be through a lawyer was, in our experience, a request which would not commonly be agreed upon by an employer for the reasons given by Mr Hyatt.

[411]Ms Ricci replied [409] to reiterate her request to assist the Claimant “to process the information that is forthcoming in a gentler manner whilst she is signed off sick, is a reasonable request for a reasonable adjustment due to her disability.” and accused R1 of adopting a discriminatory approach.

[412]Mr Hyatt replied [411] on 18 October 2022 expressing legitimate concern about the tone of Ms Ricci’s correspondence and explaining that her intervention had created contention when R1 was merely trying to engage with the Claimant to discuss workplace matters as all employers are expected to do. He did not however close the door on Ms Ricci and said that if she could provide medical evidence or at the very least a letter from the Claimant herself confirming that she considers this is necessary then R1 would proceed on the basis proposed by Ms Ricci.

[413]Pending that request Mr Hyatt, reasonably in our view, on 2 November 2022 wrote directly to the Claimant [417]. It is not asserted that Mr Hyatt harassed the Claimant by sending this correspondence directly to her. 139 of 160

[414]On 8 November 2022 the Claimant wrote to Mr Hyatt [421] to respond to Mr Hyatt’s request of Ms Ricci. She said “For reasons of which you are aware, I would like for you to direct all the communication In relation to my sickness absence to her please. I make this temporary request on the basis that I consider this to be a necessary reasonable adjustment”. That afternoon Mr Hyatt confirmed that R1 would agree to the Claimant’s request. R1 then did correspond with Ms Ricci albeit on some occasions, as we have explained, correspondence was sent to the Claimant as well as to Ms Ricci.

[415]We were not taken to any contemporaneous evidence of the Claimant or Ms Ricci having made clear to R1 or R2 that she did not want to see Mr Gill-Collis copied on any correspondence and did not want also to be sent correspondence which was sent to Ms Ricci. When the OH team later sent their report to the Claimant and to Mr Gill-Collis (as the Claimant’s de facto manager – albeit not the person managing her sickness absence) neither the Claimant nor Ms Ricci complained. Discrimination arising from disability complaints

[416]We now go on to consider the Claimant’s related allegations of discrimination arising from disability complaints:

[417]LOI: 5.1.6: The Claimant alleges that R1 kept copying in Mr Gill-Collis into formal sickness procedure invitations and invited him into every sickness meeting because of something arising in consequence of her disability. Had the Claimant made clear that she did not want to see Mr Gill-Collis’ name on any correspondence then R1 might have agreed to not copy him on correspondence but the Claimant did not do so. We find that the reason he was kept on copy on of some but not all correspondence and invitations was to keep him up to date with matters relating to the sickness absence of an employee forming part of his team [GCWS46 and FMWS29]. The reason was not because of any of the Somethings. Reasonable adjustments and indirect discrimination complaints

[418]We now go on to consider the Claimant’s related allegations of failure to make reasonable adjustments and indirect disability discrimination:

[419]Reasonable adjustments LOI 6.2.3: The Claimant alleges that R1 operated a PCP such that it insisted on communicating with its employees directly / refused to communicate with employees via a third party. We do not accept that R1 operated such a PCP. However, if we are incorrect in our analysis we in any event find that at the appropriate time (8 November 2022) R1 made the adjustment that was reasonable in the circumstances.

[420]Indirect disability discrimination LOI 8.1.5: The Claimant brought the same complaint as indirect disability discrimination. We do not accept that R1 operated such a PCP. However, if we are incorrect in our analysis we in any event find that before 8 November 2022 (when R1 agreed to correspond with Ms Ricci on behalf of the Claimant) any particular disadvantage suffered by the Claimant was justified – prior to 8 November 2022 R1 had a legitimate aim which it was seeking to achieve in a proportionate way (namely corresponding directly with an employee more conducive to open and transparent working relationships 140 of 160 with an employee). It was reasonable up to 8 November 2022, and for the more important correspondence after that date, for R1 to send it to the Claimant given that she was their employee and they were trying to understand what could be done to help her get back to work.

[421]Reasonable adjustments LOI 6.2.8 - The Claimant alleges that R1 operated a PCP such that it insisted that employees’ line managers would be copied into emails relating to their sickness absence management. She relied on the same substantial disadvantage pleaded in respect of LOI 6.2.3. We do not accept that R1 operated such a PCP but if we are wrong and it did, we find that the Claimant did not make clear that she did not want to see Mr Gill-Collis copied on emails or meeting invitations and when he was copied she did not complain about that fact. In additional it is not unreasonable that he was included in the distribution list as the Claimant’s manager. Consequently we do not agree that the Claimant was placed at a substantial disadvantage or that R1 could reasonably have been expected to know that she was placed at a substantial disadvantage.

[422]Indirect disability discrimination LOI 8.1.6 – The Claimant brought the same complaint as indirect disability discrimination. Again, we do not accept that R1 operated such a PCP but if we are wrong and it did, we find that the Claimant did not make clear that she did not want to see Mr Gill-Collis copied on emails or meeting invitations and when he was copied she did not complain about that fact. Consequently we do not agree that the Claimant was placed at a particular disadvantage. In the circumstances we also find that R1 had a legitimate aim which it was seeking to achieve in a proportionate way (namely ensuring that Mr Gill-Collis (as the Claimant’s de facto manager – albeit not the person managing her sickness absence) was kept abreast of key dates and to ensure he was able to provide key information to the process). Harassment allegations

[423]We now go on to consider the Claimant’s related allegations of disability harassment: 424. [LOI 7.1.9]: The Claimant alleged that R1 unlawfully subjected her to disability harassment on or after the 25 July 2022 by failing to remove Mr Gill-Collis from formal sickness procedure invitations and inviting him into every sickness meeting (she specified the meetings relied upon which we will address in turn). In respect of those allegations we find that they fail because the conduct complained of was not sufficiently related to disability and, in any event, if it was related to disability it was not unwanted conduct (the Claimant never complained about it) and if it was unwanted its purpose was not to violate the Claimant’s dignity or to create an intimidating, hostile, degrading, humiliating or offensive environment for her. If it had that effect then it was not reasonable for it to have done. As regards the individual instances relied upon, to the extent we have not commented on them above, we make the following further observations:424.1 [LOI 7.1.9.1] – “25 July 2022 - when Mr Gill Collis invited the Claimant to stage 2 meeting” – As we have said, on 25 July 2022 Mr Gill-Collis, in response to the suggestion that he was a trigger to the Claimant’s anxiety, confirmed that Mr Hyatt would chair the Stage 2 meeting [376] and the meeting was then pushed back to 3 August 2022 141 of 160

424.2 [LOI 7.1.9.2 and [LOI 7.1.9.3]] “15 November 2022 and 16 November 2022 – when Mr Gill Collis was copied into Occupational Health invites”: The Claimant did not make clear that she did not want OH to send her correspondence which included Mr Gill-Collis. It was appropriate for OH to send him copies of reports and consultation invitations as the Claimant’s de facto manager – albeit not the person managing her sickness absence.

424.3 [LOI 7.1.9.4] “22 February 2023 – when Mr Gill Collis was invited to attend the meeting on the 6 March 2023 of which the Claimant found out on the 3 April 2023 when invite was cancelled”: Mr Gill-Collis [443-444] was not invited to attend this meeting.

424.4 [LOI 7.1.9.5] “5 May 2023 when FM invited Mr Gill Collis to attend the stage 3 hearing.” [460]: Mr Gill-Collis was included on the Microsoft Team meeting but the invitation letter made clear that it would be Mr Hyatt who would present the management case and the Claimant did not query this or ask R1 to confirm that Mr Gill-Collis would not be in attendance.

424.5 [LOI 7.1.9.6] “18 May 2023 when Mr Gill Collis attended the stage 3 hearing” [464]: Mr Gill-Collis did not attend the stage 3 hearing. 425. [LOI 7.1.12] - The Claimant alleged that R1 unlawfully subjected her to disability harassment on 30 September 2022 when Ms Corbin sent her message directly to the Claimant (rather than her representative) and did so by an encrypted message. We see no evidence that the message was in fact encrypted. This does appear to have been unwanted conduct because by this stage the Claimant had, through Ms Ricci, asked for correspondence to be direct to Ms Ricci. However, for the reasons we have explained, it was not reasonable for her to expect that to have taken effect by this time. Ms Corbin’s correspondence was constructive and supportive. The Claimant asserts that she was not able to read Ms Corbin’s email [CWS-155 – 154] and says that after receiving the email she had a panic and anxiety attack. There is also no evidence that the Claimant asked Ms Nield to ask Ms Corbin to visit the Claimant at home. In any event it was not conduct that related to the Claimant’s disability (we do not repeat our comments about R1’s knowledge of disability here) and even if it could be said to relate to disability its purpose was not to violate the Claimant’s dignity or to create an intimidating, hostile, degrading, humiliating or offensive environment 426. [LOI 7.1.13] - The Claimant alleged that R1 unlawfully subjected her to disability harassment on 6 October 2022 by sending her correspondence directly. The Claimant says in her witness statement [CWS158] that on this date she received a large envelope from R1 which she was unable to open due to severe anxiety it triggered and in turn an intense anxiety episode. As we have said, we conclude that the Claimant is referring to a physical copy of Ms Corbin’s correspondence of 30 September 2022 which included a copy of the sickness absence policy. Ms Corbin had made clear in her email that she was posting a copy to her [405]. We repeat our findings in respect of LOI 7.1.12 as far as they are relevant. 427. [LOI 7.1.14] - The Claimant alleged that R1 unlawfully subjected her to disability harassment on 12 October 2022 by Mr Hyatt refusing the Claimant’s request to 142 of 160 communicate through her solicitor. As we have said, Mr Hyatt’s correspondence was reasonable in the circumstances based on his understanding at that point in time. In any event it was not conduct that related to the Claimant’s disability (we do not repeat our comments about R1’s knowledge of disability here) and even if it could be said to relate to disability its purpose was not to violate the Claimant’s dignity or to create an intimidating, hostile, degrading, humiliating or offensive environment for her. If it had that effect then it was not reasonable for it to have done. 428. [LOI 7.1.17] - The Claimant alleged that R1 unlawfully subjected her to disability harassment on 23 February 2023 when Mr Hyatt emailed the Claimant directly despite her request to communicate through her solicitor. By this time R1 knew that the Claimant was disabled. We accept R1’s explanation that they considered it important that such an important piece of correspondence be sent directly to the Claimant as well as to her solicitor. She did not complain about it at the time and R1 repeated that approach without complaint from the Claimant. In any event it was not conduct that related to the Claimant’s disability and even if it could be said to relate to disability its purpose was not to violate the Claimant’s dignity or to create an intimidating, hostile, degrading, humiliating or offensive environment for her. If it had that effect then it was not reasonable for it to have done. 429. [LOI 7.1.19] - The Claimant alleged that R1 unlawfully subjected her to disability harassment on 7 March 2023 when Ms Muhammad emailed the Claimant directly despite her request to communicate through her solicitor. By this time R1 knew that the Claimant was disabled. We reach the same findings in respect of this allegation as we did on LOI 7.1.17. 430. [LOI 7.1.20] - The Claimant alleged that R1 unlawfully subjected her to disability harassment on 5 May 2023 when Ms Muhammad emailed the Claimant directly despite her request to communicate through her solicitor. By this time R1 knew that the Claimant was disabled. We reach the same findings in respect of this allegation as we did on LOI 7.1.17 and LOI 7.1.19.

[431]We remind ourselves here that by this time R1 knew that the Claimant was disabled and the email from R2 of 7 June 2023 in response to the Claimant’s questions included the following (but have taken into account the response in its entirety): 9. In October 2022 she has requested that a reasonable adjustment is made so that all work-related correspondence is sent to me. This was initially refused and the employer then continued to email to my client directly which would trigger a PTSD response preventing Glynis from participating in these proceedings. Please can you explain why this was not facilitated? I understand that your initial letter was sent to Andy Hyatt when he was on leave and correspondence was sent to Glynis in his absence. We have always given Glynis alternative options for engaging in this process as set out above. We have engaged with you and made an extraordinary adjustment in allowing you to attend the meeting on Glynis’ behalf but we remain concerned that formal communication via a lawyer creates a contentious relationship which is 143 of 160 not conducive to Glynis maintaining good working relationships or will readily facilitate her return to work. […] Please can you advise as to why Mr David Gill Collis was copied into each invitation when Glynis has requested that he does not participate in any of the proceedings? So that he was kept abreast of key dates as he is Glynis’ line manager. In addition to ensure he was available, if the chair of the meetings required to meet with him separately, to provide key information to the process. This would allow for the relevant considerations to be made by the chair.

[432]The Claimant alleged that R1 and R2 unlawfully subjected her to disability harassment on the 7 June 2023 when R2 sent her email to the Claimant’s representative [R1 - LOI 7.1.22.6 & LOI 7.1.22.8, R2- LOI 7.2.3.5 & LOI 7.2.3.7]. She specifically complained that the email:432.1 asserted that R1 had made reasonable adjustments by communicating with Ms Ricci (despite, the Claimant alleges, there being ample evidence of R1 denying this request and continuing to copy the Claimant); and

432.2 R1 responded that Mr Gills–Collis was invited into all the meetings relating to the Claimant to keep him abreast of key dates despite Claimant’s requests., We do not repeat our findings above save to say that we concluded that R2’s email of 7 June 2023 was reasonable and answered the questions the Claimant had posed through Ms Ricci. The email was not unwanted conduct but if it was it was not conduct that related to the Claimant’s disability and even if it could be said to relate to disability its purpose was not to violate the Claimant’s dignity or to create an intimidating, hostile, degrading, humiliating or offensive environment Unfair dismissal

[433]As regards the Claimant’s claim of unfair dismissal, we have taken a step back to assess the sequence of events in the round and refer to our findings above. We find that R1 genuinely believed that the Claimant was no longer capable of performing her duties and that it formed that view reasonably having adequately consulted with Claimant, her representatives and the OH team over a substantial period of time. R1 sought to follow occupational health advice on how to assist the Claimant to participate in the proceedings. Ms Ricci was at the final meeting; it was her choice to leave that meeting (at which she could have made submissions). Ms Ricci asked questions after the meeting which were replied to and she could have asked questions on the detailed management case beforehand. It was reasonable for R1 not to allow Ms Ricci, a solicitor, to question R1’s employees. R1 adequately considered ill health retirement as an alternative to dismissal and reasonably concluded it was not appropriate to explore it further and the Claimant did not press for it. There was no further investigation that R1 could reasonably have been expected to carry out (it had up to date advice from OH) and R1 reasonably concluded that there was no 144 of 160 prospect of the Claimant returning to work in a reasonable timescale. R1 could not reasonably have been expected to wait longer before dismissing the Claimant in particular where there was no clear prognosis of a recovery within a particular timescale, the Claimant did not explain the workplace issues that were a barrier to her returning or how they could be overcome (despite having many opportunities to do so) and only material way forward that the Claimant suggested was for there to be a negotiation of an exit package. R1 raised the question of redeployment with the Claimant but the Claimant did not suggest that this was something she would consider and it was in any event clear that the Claimant did not want to return to work for R1 by the time it came to the final stage of the absence management procedure. As we have explained, the Claimant’s circumstances were not exceptional (as per the policy and) it would not have been reasonable to expect the R1 to exercise any further discretion under the Sickness Absence Policy. R1 reasonably concluded that fact the Claimant was long serving did not counterbalance the need to move to dismissal when it did. We find that the decision to dismiss the Claimant was within the range of reasonable responses open to a reasonable employer and was fair in all the circumstances of the case. Time Limits

[434]Given that we have found that the Claimants complaints are not well founded we have not gone on to consider the question of time limits. Employment Judge Woodhead Date 28 November 2024 4 December 2024 ...................................................................... ...................................................................... For the Tribunals Office 145 of 160 Appendix AGREED LIST OF ISSUES

consideration:

[1]Time limits 1.1. Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before: 1.1.1. 19 June 2023 may not have been brought in time in respect of the First Respondent: 1.1.2. 18 May 2023 may not have been brought in time in respect of the Second Respondent; 1.2. Were the discrimination and harassment complaints made within the time limit in s123 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? 1.3. If not, was there conduct extending over a period? 1.4. If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period? 1.5. If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide: 1.5.1.1. Why were the complaints not made to the Tribunal in time? 1.5.1.2. In any event, is it just and equitable in all the circumstances to extend time?

[2]Unfair Dismissal 2.1. It is accepted that the Respondent dismissed the Claimant on the 19 June 2023. 2.2. What was the reason or principal reason for dismissal? The Respondent says the reason was capability (long term absence). 2.3. If the reason was capability, did the Respondent act reasonably or unreasonably in all the circumstances, including the Respondent’s size and administrative resources, in treating that as a sufficient reason to dismiss the Claimant? The Tribunal’s determination whether the dismissal was fair or unfair must be in accordance with equity and the substantial merits of the case. Tribunal will usually take into account, in particular, whether: 2.3.1. the Respondent genuinely believed the claimant was no longer capable of performing their duties; 2.3.2. the Respondent adequately consulted the claimant; 146 of 160 2.3.3. the Respondent sought to follow occupational health advice on how to assist the Claimant to participate in the proceedings; 2.3.4. the Respondent adequately considered ill health retirement as an alternative to 2.3.5. the Respondent carried out a reasonable investigation, including finding out about the up-to-date medical position; 2.3.6. the Respondent could reasonably be expected to wait longer before dismissing the claimant; 2.3.7. the Respondent considered redeployment and made available to the Claimant a list of current positions and discussed those with the Claimant and OH; 2.3.8. the Respondent considered the Claimant’s situation as exceptional circumstances or otherwise exercised discretion under the Sickness Absence Policy; 2.3.9. the Respondent considered Claimant’s previous history and term of service; and 2.3.10.the Respondent made reasonable adjustments to assist Claimant to participate in the process; 2.3.11.Dismissal was within the range of reasonable responses.

[3]Remedy for unfair dismissal 3.1. If there is a compensatory award, how much should it be? The Tribunal will decide: 3.1.1. What financial losses has the dismissal caused the claimant? 3.1.2. Has the claimant taken reasonable steps to replace their lost earnings, for example by looking for another job? 3.1.3. If not, for what period of loss should the claimant be compensated? 3.1.4. Is there a chance that the claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason? 3.1.5. If so, should the Claimant’s compensation be reduced? By how much? 3.1.6. Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply? 3.1.7. If so did the Claimant unreasonably fail to comply with it by not appealing the dismissal. 3.1.8. If so is it just and equitable to decrease any award payable to the Claimant? By what proportion, up to 25%? 147 of 160 3.1.9. If the Claimant was unfairly dismissed, did they cause or contribute to dismissal by blameworthy conduct? 3.1.10.If so, would it be just and equitable to reduce the Claimant’s compensatory award? By what proportion? 3.1.11.Does the statutory cap of fifty-two weeks’ pay apply? 3.2. What basic award is payable to the Claimant, if any? 3.3. Would it be just and equitable to reduce the basic award because of any conduct of the claimant before the dismissal? If so, to what extent?

[4]Direct disability discrimination (Equality Act 2010 section 13) 4.1. The Claimant has PTSD & generalised anxiety disorder which she relies upon either separately or together as being disabilities. 4.2. Did the Respondent know or ought reasonably to have known that the Claimant had those conditions and that they amounted to disabilities for the purposes of the Equality Act 2010. The Respondent admits knowledge that C had an anxiety disorder which met the definition of a disability in section 6 EA 2010 as of 9 December 2022. The Respondent admits knowledge that the PTSD would meet the definition of disability as of 9 December 2022. 4.3. Did the First Respondent do the following things: 4.3.1. On the 14 April 2022 Mr Gill-Collis commence a formal sickness absence 4.3.2. On the 21 April 2022 Ms Muhammad postponed the meeting only by one week and failed to carry out a reasonable investigation into what could be done to support the Claimant to attend i.e. failed to investigate what adjustments the Claimant wanted; 4.3.3. On the 6 May 2022 Respondent refused the Claimant’s request to work from home until the 7 July 2022; 4.3.4. On the 13 May 2022 Ms Muhammad arranged a Stage 2 meeting; 4.3.5. On the 14 July 2022 contrary to recommendations of the occupational health report, the Respondent proceeded with Stage 2 of the formal sickness 4.3.6. On 21 July 2022 Ms Muhammad ignored the recommendations of OH i.e. a recommendation that the Respondent discuss what the Claimant wanted via an informal process; 4.3.7. On the 3 August 2022 Ms Tolhurst chastised the Claimant for threatening to kill herself and failed to take any adequate action to check the welfare of the Claimant i.e. carry out a welfare check with the Claimant, asking verbally how she was; 148 of 160 4.3.8. Failed, at Claimant’s request, to pause the formal process to allow the Claimant to feel better and scheduled stage 2 meeting for 11 August 2022 which the 4.3.9. In January 2023 did the Respondent fail to extend sick pay or consider whether it should be extended and/or whether ill health retirement was suitable; 4.3.10.On the 6 March 2023 did Ms Muhammad tell the Claimant to ‘pull herself together’ when Claimant started crying and stuttering; 4.3.11.On the 18 May 2023 did the Respondent prevent Ms Ricci from participating in the sickness hearing; 4.3.12.On the 7 June 2023 did the Respondent send an email to the Claimant’s representative (and its contents (as pleaded in paragraph 84) i.e. the Respondent both sent the email and carried out the actions set out) namely: 4.3.12.1.the Respondent failed to consider whether to exercise discretion on how to apply a sickness policy; 4.3.12.2. The Respondent has failed to consider whether Claimant’s situation was ‘exceptional circumstances’; 4.3.12.3. the Respondent failed to consider whether ill health retirement was appropriate or considered it as an unsuitable option without any appropriate evidence); 4.3.12.4. The Respondent has failed to provide the Claimant with vacancies and details so that Claimant could consider redeployment. 4.3.13. On 19 June 2023 dismissed the Claimant. 4.4. Did the Second Respondent do the following: 4.4.1. On the 3 August 2022 Ms Tolhurst chastised the Claimant for threatening to kill herself and failed to take any adequate action to check the welfare of the Claimant; 4.4.2. On the 18 May 2023 prevented Ms Ricci from participating in the sickness 4.4.3. On the 7 June 2023 sent an email to the Claimant’s representative (and its carried out the actions set out) whereby 4.4.3.1. she failed to consider whether to exercise discretion on how to apply a sickness policy; 4.4.3.2. she has failed to consider whether Claimant’s situation was exceptional circumstances; 4.4.3.3. she failed to consider whether ill health retirement was appropriate or considered it as an unsuitable option without any appropriate 149 of 160 evidence). 4.4.4. Was a decision maker or advisor in respect of Claimant’s dismissal or influenced the decision to dismiss. 4.5. 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. 4.6. 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 also relies on Anne Lord being a comparator in relation to how the sickness policy has been applied.

[5]Discrimination arising from disability (Equality Act 2010 section 15) 5.1. Did the Respondent treat the Claimant unfavourably by: 5.1.1. On the 7 February 2022 Mr Gill-Collis refused Claimant’s request to work from home; 5.1.2. On the 8 February 2022 Mr Hyatt refused Claimant’s request to work from home; 5.1.3. On the 14 April 2022 Mr Gill-Collis commenced formal sickness absence 5.1.4. On the 6 May 2022 refused Claimant’s request to work from home until 7 July 5.1.5. On the 13 May 2022 Ms Muhammad arranged a Stage 2 meeting; 5.1.6. The Respondent kept copying in Mr Gill-Collis into formal sickness procedure invitations and invited him into every sickness meeting; 5.1.7. On the 14 July 2022 when contrary to recommendations of the occupational health report, the Respondent proceeded with Stage 2 formal sickness procedure whereby it: 5.1.7.1. failed to have an informal discussion with the Claimant as to the reasonable adjustments she needed; 5.1.7.2. Failed to carry out a risk assessment 5.1.7.3. Failed to have a meeting/case conference so as to get fuller understanding of Claimant’s ill health 5.1.8. On the 3 August 2022 Ms Tolhurst chastised the Claimant for threatening to kill herself and failed to take any adequate action to check the welfare of the Claimant. 5.1.9. Failing to take Claimant’s requests to pause formal process to allow the Claimant to feel better and scheduling stage 2 meeting for 11 August 2022 which the 150 of 160 5.1.10. On the 12 October 2022 Mr Hyatt threatening the Claimant with dismissal; 5.1.11. In January 2023 Respondent failed to extend sick pay or consider whether it should be extended and/or whether ill health retirement was suitable; 5.1.12.On the 6 March 2023 Ms Muhammad told the Claimant to ‘pull herself together’ when Claimant started crying and stuttering; 5.1.13.On the 18 May 2023 prevented Ms Ricci from participating in the sickness 5.1.14. On the 7 June 2023 sent an email to the Claimant’s representative (and its carried out the actions set out) namely: 5.1.14.1. Failed to exercise discretion under sickness absence because the claimant was on long sickness absence rather than short sickness absence; 5.1.14.2. Confirmed that it failed to consider Claimant’s flexible working application because she was unable to make a formal application; 5.1.14.3. Confirmed that the Respondent has failed to consider whether ill health retirement under the Local Government Pension Scheme (LGPS) was possible for the Claimant further/in the alternative that it considered it unsuitable; 5.1.15. On the 19 June 2023 dismissed the Claimant. 5.2. Did the following things arise in consequence of the Claimant’s disability: 5.2.1. Her severe anxiety in exposing her son to Covid 19; 5.2.2. Her stutter and general communication limitations; 5.2.3. Her limitations in respect of participation in the formal process namely: 5.2.3.1.suffering from panic attacks; 5.2.3.2.severe anxiety; and 5.2.3.3.not being able to open correspondence, or reply to correspondence sent 5.2.4. Her sickness absence; 5.2.5. Her request for reasonable adjustments / flexible working; 5.3. Was the unfavourable treatment because of any of those things? 5.4. Was the treatment a proportionate means of achieving a legitimate aim? The respondent says that its aims were: 5.4.1. Management of public finances and 151 of 160 5.4.2. The management of staff resources and ensuring sufficient staff are available to meet the needs of the services. 5.5. The Tribunal will decide in particular: 5.5.1. was the treatment an appropriate and reasonably necessary way to achieve those aims; 5.5.2. could something less discriminatory have been done instead; 5.5.3. how should the needs of the Claimant and the Respondent be balanced? 5.6. Did the Respondent know or could it reasonably have been expected to know that the Claimant had post-natal depression? From what date? 5.7. The Respondent accepts knowledge of the PTSD and generalised anxiety disorder as set out in section 4.2 above.

[6]Reasonable Adjustments (Equality Act 2010 sections 20 & 21) 6.1. Did the Respondent know, or could it reasonably have been expected to know that the claimant had the disability? The Respondent says it knew from 9 December 6.2. A “PCP” is a provision, criterion or practice. Did the respondent have the following PCPs: 6.2.1. Required that employees return some days at the office as a result of which, the Claimant avers she was not permitted to work predominantly from home and suffered a mental breakdown and had to be signed off sick which subsequently led to the Claimant being dismissed; 6.2.2. Required that the employees make a formal application for flexible working for it to be considered and failed to consider the Claimant’s informal application. The Claimant alleged that this meant she had to be signed off sick which subsequently led to the Claimant being dismissed. For the avoidance of doubt the Claimant’s position is that she made her informal request for flexible working on: 6.2.2.1. 6 January 2022 (by text [281]); 6.2.2.2. 7 January 2022 (in a telephone conversation with DGC [DGC email 298 refers]); 6.2.2.3. 28 January 2022 (in a telephone conversation DGC [300]); 6.2.2.4. 1 February 2022 (telephone call between C and DGC (no page reference)) 6.2.2.5. 8 February 2022 (by email [321]); 6.2.2.6. 4 April 2022 (email [337]) 6.2.2.7. 6 May 2022 (in meeting Ms J Neild attended on C behalf [356-357] 152 of 160 6.2.3. Communicate with their employees directly / or not communicate with employees via a third party as a result of which the Claimant’s mental health deteriorated to the point where she was not able to open correspondence, experienced severe anxiety symptoms and was not able to participate in the proceedings, which subsequently led to her dismissal; 6.2.4. their sickness absence policy as a result of which the Claimant suffered from complete shutdown, her mental health deteriorated to the point where she was considering suicide, which prolonged her ill health absence, as a result of which the Claimant experienced severe anxiety symptoms and was not able to participate in the proceedings, which subsequently led to her dismissal; 6.2.5. only paying sick pay for 6 months full pay and six months half pay as a result of which the Claimant was not receiving pay and had to sell her house as a consequence; 6.2.6. that the employees are required to carry out the full range of duties of their role as a result of which the Claimant suffered from complete shutdown, her mental health deteriorated to the point where she was considering suicide, had to go on sick leave which subsequently led to her dismissal; 6.2.7. not allowing a solicitor to speak or ask questions at a sickness absence meeting as a result of which the Claimant was not able to participate in the meeting (by proxy) which subsequently led to her dismissal; 6.2.8. that employees line managers would be copied into emails relating to the employee’s sickness absence management which resulted in Claimant suffering from such severe anxiety that the Claimant was not able to participate in the meetings which subsequently made her feel worse, prolonged her sickness leave and led to her 6.2.9. failure to provide redeployment vacancies or detail which prevented the Claimant from considering if any vacancies are suitable for her which subsequently led to her dismissal; 6.2.10. failure to consider ill health retirement which led to Claimant’s dismissal. 6.3. Did the PCPs put the claimant at a substantial disadvantage compared to someone without the claimant’s disability as set out in clause 6.2. 6.4. What steps could have been taken to avoid the disadvantage? The Claimant suggests the adjustments at 6.6 below: 6.5. Was it reasonable for the Respondent to have to take those steps and when? 6.6. Did the respondent fail to take those steps? 6.6.1. In respect of 6.2.1, the Respondent could have allowed the Claimant to work from home until July 2022. 6.6.2. In respect of 6.2.2, the Respondent could have considered the Claimant’s application without requiring her to go through a formal process; 153 of 160 6.6.3. in respect of 6.2.3, the Respondent could have communicated with the Claimant’s solicitor directly including without copying the Claimant into correspondence or posting letters to the Claimant’s home address; 6.6.4. in respect of 6.2.4. the Respondent could have exercised its discretion to: 6.6.4.1. not commence a formal process; 6.6.4.2. pause the formal process; 6.6.4.3. not to proceed to any of the other formal stages; 6.6.4.4. engage with the Claimant in a less formal and supportive way throughout her sickness absence; 6.6.5. In respect of 6.2.5 the Respondent could have considered and/or extended the sick pay period; 6.6.6. In respect of 6.2.6, the Respondent could have considered phased return, flexible hours and could have allowed her to work from home until July 2022; 6.6.7. In respect of 6.2.7, the Respondent could have permitted the Claimant’s solicitor to participate in the hearing fully; 6.6.8. In respect of 6.2.8, the Respondent could have left Mr Gill Collis out of the correspondence and forwarded the correspondence separately to him; 6.6.9. In respect of 6.2.9 the Respondent could have provided a list of vacancies for the Claimant to consider; 6.6.10. In respect of 6.2.10 the Respondent could have considered whether the Claimant was suited for ill health retirement (for example by making further specialist enquiries to determine this).

[7]Harassment related to disability (Equality Act 2010 section 26) 7.1. Did the First Respondent do the following things: 7.1.1. On the 7 February 2022 Mr Gill-Collis responded to the Claimant to reiterate the point about working from home not being an opportunity for childcare; 7.1.2. On the 8 February 2022 Mr Hyatt emailing the Claimant and telling her ‘that working from home is not designated to supplement childcare’ and failing to consider her disability. 7.1.3. On the 14 April 2022 Mr Gill-Collis commencing formal sickness absence 7.1.4. On the 21 April 2022 Ms Muhammad rescheduling the meeting with only one week away and failing to carry out reasonable investigation into what could be done to support the Claimant to attend; 7.1.5. On the 6 May 2022 refused Claimant’s request to work from home until the 7 154 of 160 July 2022. 7.1.6. On the 13 May 2022 Ms Muhammad arranging a Stage 2 meeting; 7.1.7. On the 14 July 2022 when contrary to recommendations of the occupational health report, proceeded with Stage 2 formal sickness procedure namely: 7.1.7.1. Failed to carry out a risk assessment; 7.1.7.2. Failed to have an informal meeting/case reference with the Claimant to ‘fully understand Claimant’s ill - health and allow a supportive phased return to work programme or possibly other options explored’; 7.1.8. On 21 July 2022 Ms Muhammad ignored the recommendations in the OH and failed to consider requests set out in the email from Jackie Nield dated 21 July 2022 by scheduling a formal stage 2 meeting for the 25 July 2022; 7.1.9. On or after the 25 July 2022 failed to remove Mr Gill-Collis from formal sickness procedure invitations and invited him into every sickness meeting namely: 7.1.9.1. 25 July 2022 – when Mr Gill Collis invited the Claimant to stage 2 meeting. 7.1.9.2. 15 November 2022 – When Mr Gill Collis was copied into Occupational Health invite. 7.1.9.3. 16 November 2022 – when Mr Gill Collis was copied into her Occupational Health invite 7.1.9.4. 22 February 2023 – when Mr Gill Collis was invited to attend meeting on the 6 March 2023 of which the Claimant found out on the 3 April 2023 when invite was cancelled. 7.1.9.5. 5 May 2023 when FM invited Mr Gill Collis to attend the stage 3 hearing. 7.1.9.6. 18 May 2023 when Mr Gill Collis attended the stage 3 hearing. 7.1.10. On the 3 August 2022 Ms Tolhurst chastised the Claimant for threatening to kill herself and failed to take any adequate action to check the welfare of the Claimant. 7.1.11. Failing to take Claimant’s requests to pause formal process to allow the Claimant to feel better and scheduling stage 2 meeting for 11 August 2022 which the 7.1.12. On the 30 September 2022 sending a message directly to the Claimant (rather than her representative) and doing so by an encrypted message; 7.1.13. On the 6 October 2022 sending correspondence directly to the Claimant rather than her representative; 7.1.14. On the 12 October 2022 Mr Hyatt refusing Claimant’s request to 155 of 160 communicate through her solicitor; 7.1.15. On the 12 October 2022 Mr Hyatt threatening the Claimant with 7.1.16. In January 2023 the Respondent failing to extend sick pay or consider whether it should be extended and/or whether ill health retirement was suitable. 7.1.17. On the 23 February 2023 Mr Hyatt emailing the Claimant directly despite her request to communicate through her solicitor; 7.1.18. On the 6 March 2023 Ms Muhammad told the Claimant to ‘pull herself together’ when Claimant started crying and stuttering; 7.1.19. 7 March 2023 Ms Muhammad emailed the Claimant directly despite her request to communicate through her solicitor; 7.1.20. 5 May 2023 Ms Muhammad emailed the Claimant directly despite her request to communicate through her solicitor; 7.1.21. On the 18 May 2023 prevented Ms Ricci from participating in the sickness hearing; 7.1.22. On the 7 June 2023 sent an email to the Claimant’s representative (and its contents (as pleaded in paragraph 84) i.e. the Respondent both sent the email and carried out the actions set out) namely: 7.1.22.1. Failed to make any adjustments to how the Sickness Policy was applied; 7.1.22.2. Failed to apply discretion and to not proceed to formal sickness absence process; 7.1.22.3. Failed to consider whether Claimant’s circumstances are exceptional and failed to consider whether discretion should be exercised to extend Claimant’s sick pay in January 2023. 7.1.22.4. Requesting that Claimant makes a formal application for flexible working despite her mental health condition; 7.1.22.5. Telling the Claimant that they were not able to get the Claimant to participate in the sickness absence process, however failing to adopt a less formal approach in accordance with the recommendations of the OH. 7.1.22.6. Stating that it made reasonable adjustments by communicating with Ms Ricci, despite there being ample evidence of the Respondent denying this request and continuing to copy the Claimant; 7.1.22.7. Failing to consider whether ill health retirement under the Local Government Pension Scheme (LGPS) was possible for the Claimant further/in the alternative considering it unsuitable (without any appropriate evidence); 7.1.22.8. Inviting Mr Gills – Collis into all the meetings relating to the Claimant to 156 of 160 keep him abreast of key dates despite Claimant’s requests. 7.1.23. On the 19 June 2023 dismissed the Claimant. 7.2. Did the Second Respondent do the following: 7.2.1. On the 3 August 2022 Ms Tolhurst responded to the email above chastising the Claimant for threatening to kill herself and failed to take any adequate action to check the welfare 7.2.2. On the 18 May 2023 prevented Ms Ricci from participating in the sickness 7.2.3. On the 7 June 2023 sent an email to the Claimant’s representative (and its carried out the actions set out) and was a decision maker or advisor in respect of the following: 7.2.3.1. Failed to make any adjustments to how the Sickness Policy was applied; 7.2.3.2. Failed to apply discretion and to not proceed to formal sickness absence process; 7.2.3.3. Failed to consider whether Claimant’s circumstances are exceptional and failed to consider whether discretion should be exercised to extend Claimant’s sick pay in January 2023. 7.2.3.4. Telling the Claimant that the Respondent were not able to get the Claimant to participate in the sickness absence process, however failing to adopt a less formal approach in accordance with the recommendations of the OH. 7.2.3.5. Stating that it made reasonable adjustments by communicating with Ms Ricci, despite there being ample evidence of the Respondent denying this request and continuing to copy the Claimant; 7.2.3.6. Failing to consider whether ill health retirement under the Local Government Pension Scheme (LGPS) was possible for the Claimant further/in the alternative considering it unsuitable (without any appropriate evidence); 7.2.3.7. Inviting Mr Gills – Collis into all the meetings relating to the Claimant to keep him abreast of key dates despite Claimant’s requests. 7.2.4. was a decision maker or advisor in respect of Claimant’s dismissal or influenced the decision to dismiss. 7.3. If so, was that unwanted conduct? 7.4. Did it relate to disability? 7.5. 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? 157 of 160 7.6. 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.

[8]Indirect Discrimination 8.1. Did the Respondent have the following PCP: 8.1.1. Requirement that Claimant returns to work some days at the office (as a result of which, the Claimant avers she suffered a mental breakdown and had to be signed off sick which subsequently led to the Claimant being dismissed); 8.1.2. Required that the employees make a formal application for flexible working for it to be considered and failed to consider the Claimant’s informal application. The Claimant alleged that this meant she had to be signed off sick which subsequently led to the Claimant being dismissed. For the avoidance of doubt the Claimant’s position is that she made her informal request for flexible working on: 8.1.2.1. 6 January 2022 (by text [281]); 8.1.2.2. 7 January 2022 (in a telephone conversation with DGC [DGC email 298 refers]); 8.1.2.3. 28 January 2022 (in a telephone conversation DGC [300]); 8.1.2.4. 1 February 2022 (telephone call between C and DGC (no page reference)) 8.1.2.5. 8 February 2022 (by email [321]); 8.1.2.6. 4 April 2022 (email [337]) 8.1.2.7. 6 May 2022 (in meeting Ms J Neild attended on C behalf [356- 357] 8.1.3. Respondent’s application of Sickness Absence Policy as described in the grounds of complaint or failure to modify it (as a result of which, the Claimant’s mental health deteriorated to the point where she was considering suicide, was not able to participate in the proceedings, prolonged the period for which she was signed off sick which subsequently led to the Claimant being dismissed); 8.1.4. Respondent’s failure to exercise discretion as described in the grounds of complaint namely: 8.1.4.1. the Respondent’s failure to exercise discretion and the Claimant’s case ‘exceptional’ (as a result of which the Claimant suffered from complete shutdown, experienced severe anxiety symptoms, was not able to return to work sooner which subsequently led to her dismissal); 8.1.4.2. the Respondent failed to exercise discretion and adopt a less formal process (as a result of which the Claimant suffered from complete shutdown, experienced severe anxiety symptoms and was not able to return to 158 of 160 work sooner, was not able to participate in the proceedings and which subsequently led to her dismissal) (from 14 April 2022); 8.1.4.3. The Respondent’s failure to exercise discretion and consider whether to and/or extend sick pay in January 2023 (as a result of which the Claimant lost sick pay and which subsequently led to Claimant having to sell her home); 8.1.5. Respondent’s refusal to communicate with a designated person instead of the employee (as a result of which the Claimant was not able to open letters, suffered from complete shutdown, experienced severe anxiety symptoms and was not able to participate in the proceedings and put her case forward which subsequently led to her dismissal) from 26 September 2022; 8.1.6. Respondent’s insistence on copying in the line manager into meeting invitations (as a result of which the Claimant suffered from complete shutdown, experienced severe anxiety symptoms and was not able to participate in the proceedings and put her case forward which subsequently led to her dismissal) (from May 2022); 8.1.7. Failure to provide redeployment vacancies or detail (which led to Claimant’s dismissal) (form 30 March 2023 when first suggested by OH); 8.1.8. Failure to consider ill health retirement (which led to Claimant’s dismissal) since May 2023. 8.1.9. Dismissing the Claimant. 8.2. Did the Respondent apply these PCPs to the Claimant? 8.3. Did the respondent apply the PCPs to persons with whom the claimant does not share the characteristic, i.e. non-disabled people or those with a physical rather than mental impairment or would it have done so? 8.4. Did the PCPs put persons with whom the Claimant shares the characteristic, of being a disabled person with a mental impairment, at a particular disadvantage when compared with persons with whom the Claimant does not share the characteristic. 8.5. Did the PCPs put the claimant at that disadvantage. The Claimant avers that the disadvantage was that as described in Paragraph 8.1. 8.6. Were the PCPs a proportionate means of achieving a legitimate aim? The Tribunal will decide in particular: 8.6.1. were the PCPs an appropriate and reasonably necessary way to achieve those aims; 8.6.2. could something less discriminatory have been done instead; 8.6.3. how should the needs of the claimant and the respondent be balanced?

[9]Remedy for discrimination or victimisation 159 of 160 9.1. 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. Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply? 9.9. Did the Respondent or the Claimant unreasonably fail to comply with it by failing to raise a grievance. 9.10. If so is it just and equitable to increase or decrease any award payable to the claimant? 9.11. By what proportion, up to 25%? 9.12. Should interest be awarded? How much? 160 of 160